Hornbook on Torts (Hornbooks) - Dan Dobbs

WEST ACADEMIC PUBLISHING’S
LAW SCHOOL ADVISORY BOARD

___________
JESSE H. CHOPER
Professor of Law and Dean Emeritus,
University of California, Berkeley
JOSHUA DRESSLER
Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University
YALE KAMISAR
Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan
MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law
LARRY D. KRAMER
President, William and Flora Hewlett Foundation
JONATHAN R. MACEY
Professor of Law, Yale Law School
ARTHUR R. MILLER
University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University
GRANT S. NELSON
Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles
A. BENJAMIN SPENCER
Professor of Law, University of Virginia School of Law
JAMES J. WHITE
Robert A. Sullivan Professor of Law Emeritus,
University of Michigan
i
HORNBOOK ON TORTS
Second Edition
Dan B. Dobbs
Regents Professor and
Rosenstiel Distinguished Professor of Law Emeritus
University of Arizona
Paul T. Hayden
Thomas V. Girardi Professor of Consumer Protection Law
Loyola Law School, Los Angeles
Ellen M. Bublick
Dan B. Dobbs Professor of Law
University of Arizona
HORNBOOK SERIES®
ii
The publisher is not engaged in rendering legal or other professional advice, and this
publication is not a substitute for the advice of an attorney. If you require legal or
other expert advice, you should seek the services of a competent attorney or other
professional.
Hornbook Series is a trademark registered in the U.S. Patent and Trademark Office.
COPYRIGHT © 2000 By WEST GROUP
© 2016 LEG, Inc. d/b/a West Academic
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Printed in the United States of America
ISBN: 978-1-62810-147-8
iii
To all my family—Patsy Waterfall, Anne Butterfield, Kate

Ariel, Jean Fonvielle and George, Becky, Hannah, Tim and
Ben Dobbs.
– D.B.D.
To Diane, Olivia, Dorothy and Rose.

– P.T.H.
To Daniel, Harrison and David, with love and admiration.

– E.M.B.
v
Preface
_________
This hornbook is intended to provide a single-volume overview

of contemporary tort law. It covers all of the traditional ground of
tort law as well as a number of wholly new legal issues, including
the fast-growing economic torts. Our aim is to help readers
understand the general rules and flavor of contemporary American
tort law through recent cases, statutes, and illustrations. While the
approach is comprehensive, it is also judicious. Readers who prefer
a more exhaustive examination of the topics and a fuller list of
citations in support of various rules can turn to our four-volume
treatise, Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The
Law of Torts (2d ed. 2011 & Supp.).
This edition presents the second iteration of this one-volume
hornbook. For the first edition, Professor Dobbs originally intended
to write a new version of the Prosser & Keeton treatise, of which he
was a co-author. However, the law had changed so much since that
hornbook was last edited in 1984, he decided the revision game
was not worth the candle; it was better instead to write an entirely
new book from the ground up. His efforts became the first edition
of this book.
Changes in tort law between the last edition of the Prosser &
Keeton hornbook in 1984 and the first edition of this book in 2000
were immense, and certainly included changes in attitudes of
judges and legislators. From the first volume of this hornbook in
2000 to the work today, changes have been more incremental, but
also pervasive and important. For example, in intentional torts, the
Restatement Third of Torts: Intentional Torts to Persons created a
new tort of purposeful infliction of bodily harm. Whether courts
will embrace the new tort, and with what limitations, is a matter
for coming legal development, and lawyers are well-advised to be
alert to the new possibilities. Moreover, all-or-nothing doctrines
such as assumption of the risk have continued to fade away, and
are increasingly discarded as separate defenses and instead
incorporated into comparative fault defenses. While legislatures
continue to limit the liabilities of many favored groups, common
law duties of care are expanding in a number of areas. The areas of
duty to protect third persons from harm, and duty to take
precautions against emotional harm, are but two examples. The
apportionment of liability landscape also has continued to evolve,
not only in terms of how liability is divided amongst multiple
actors, but also in terms of the way in which liability is envisioned
as an initial matter once courts adopt a framework of divisible
liability. On the economic torts side, questions about the role and
scope of an economic loss rule or rules have dominated the scene.
Throughout all of these issues, this book does not consciously
attempt to advance any particular approach to, or theory of, torts.
It attempts, instead, to point to overriding policy goals, economic
analysis, and concerns of accountability, as well as to practical
problems in administering tort law. But the book is not about any
of those things. It is about today’s tort law. If we have a view about
economic analysis vs. corrective justice or utilitarianism vs. some
“moral” approach, it is probably that all of these approaches and
their variations have offered, and will offer, a good deal to courts
and advocates alike.
vi
On the other hand, this book does occasionally offer comments

or assessments of particular cases or legal rules, in the belief that
any position taken offers students and lawyers a beginning point
for their own analysis.
Conventions
“Defendant” and “actor.” This book uses several conventions.
Like the Restatement, it sometimes uses the term “actor” to refer
to the person whose acts are in issue. But more often it uses the
term defendant. “Actor” is admittedly more accurate because
“actor” covers the case in which the plaintiff’s acts are in issue as
well as the case in which we are concerned with the defendant’s
act. Nevertheless, “actor” is often confusing, and professional usage
makes it easy to understand that “defendant” can include other
actors if the context demands.
“He” and “she.” The pronouns he and she can be distributed
more or less equally by using “she” for all plaintiffs and “he” for all
defendants, and that is what we have done here. If it creates a
sense that women are always plaintiffs and men always tortfeasor
defendants, it is unfortunate, inaccurate and not our aim. But the
practice aids clarity. So intending no implications about anyone’s
character, we typically use she in referring to plaintiffs, and he (or
“it” with corporations) in referring to defendants.
Citations and quotations. Interior quotation marks are almost
always omitted as are case citations appearing without a
quotation. The denial of certiorari by the United States Supreme
Court does not connote approval of the decision, and thus denial is
not noted. Short forms of repeated citations are sometimes used as
follows:
Restatement Second of Torts (1965–1977): Restatement
Second.
Restatement Third of Torts (project title X): Restatement
Third or Restatement Third of X.
W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, & David
G. Owen, Prosser & Keeton on Torts (5th ed. 1984): Prosser
& Keeton.
Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The
Law of Torts (2d ed. 1986): Harper, James & Gray.
Dan B. Dobbs, Paul T. Hayden, and Ellen M. Bublick, The Law
of Torts (2011 & Supp.): (volume number) Dobbs, Hayden &
Bublick, The Law of Torts (section) (2d ed. 2011 & Supp.).
vii
Acknowledgments
_________
This book could not have been published without the dedicated
work of many, many people, to whom we are deeply indebted. First
and foremost, thanks are due to David Jacobs and Rose Hayden for
their exhaustive review and edits of this full work. Thanks too to
our fine colleagues at West Academic, who are a delight to work
with, and make the whole process of writing and publishing a
pleasure.
Professor Hayden adds thanks to all the research librarians at
Loyola Law School, under the leadership of Professor Dan Martin,
and all the administrative assistants in faculty support, under the
leadership of Pam Buckles.
For excellent help with many facets of research, editing,
revising and cite-checking, Professor Bublick would like to thank
John Salvatore, Nick Lucie, Jana Sutton, Tyler Broker, Brooke
Bedrick and Matt Mittlestadt. Thanks also to the James E. Rogers
College of Law library, under the Directorship of Mike Chirorazzi,
and the assistance of top reference librarian Maureen Garmon.
Finally, many thanks to the hard work and professionalism of the
Arizona Law Review, particularly, Raisa Ahmad, Alexis Brooks,
Margo Casselman, Adam Cirzan, Creighton Dixon, Brett Gilmore,
Lindsey Huang, Dan Roberts, Elizabeth Robertson, Christopher
Sloot, and Mitch Turbenson, for their able and speedy assistance
with hundreds of pages of proofs. No teachers are as lucky as we
for the talent, vitality and energy of their students. Finally, thanks
to Dean Marc Miller and Associate Dean Chris Robertson for their
support of research at the college and of this book in particular.
ix
Summary of Contents
_________
PREFACE
ACKNOWLEDGMENTS
PART I. INTRODUCING TORT LAW
CHAPTER 1. DEFINING TORT LAW
CHAPTER 2. AIMS, POLICIES, HISTORY AND METHODS
OF TORT LAW
A. Aims and Policies of Tort Law
B. History, Methods and Procedures of Tort Law
CHAPTER 3. TORT LAW IN PRACTICE
A. Adjudication of Tort Cases
B. Fundamental Operating Conceptions
C. The Background Conditions of Tort Law
PART II. INTENTIONAL TORTS TO PERSONS OR
PROPERTY
CHAPTER 4. DIRECT AND INTENTIONAL
INTERFERENCE WITH THE PERSON
A. Scope of the Chapter
B. Intent and Related Concepts
C. Battery
D. Assault
E. False Imprisonment
F. Extended Liability and Damages
CHAPTER 5. INTENTIONAL INTERFERENCE WITH REAL
PROPERTY: TRESPASS TO LAND
CHAPTER 6. INTENTIONAL INTERFERENCE WITH
TANGIBLE PERSONAL PROPERTY: TRESPASS TO
CHATTELS AND CONVERSION
CHAPTER 7. DEFENSES TO INTENTIONAL TORTS
A. Self-Defense and Defense of Others
B. Discipline
C. Defense and Recovery of Property
D. Privileges to Detain or Arrest
E. Necessity
CHAPTER 8. CONSENT
PART III. NEGLIGENT PHYSICAL HARMS TO PERSONS

OR PROPERTY
SUBPART A. THE PRIMA FACIE CASE
CHAPTER 9. THE NEGLIGENCE ACTION: AN
INTRODUCTION
A. Characteristics
B. Development
C. Fundamentals of Negligence Liability
CHAPTER 10. DUTY AND THE ORDINARY STANDARD OF
REASONABLE CARE UNDER THE CIRCUMSTANCES
A. The Existence of Duty
B. The Ordinary Standard of Reasonable Care
C. Particular Circumstances Related to the Standard of Care
D. The Standard of Care for Children
E. Other Standards of Care
CHAPTER 11. IMPORTING STATUTORY STANDARDS OF
CARE: NEGLIGENCE PER SE
CHAPTER 12. BREACH OF DUTY
A. Negligent Conduct
B. Foreseeability and Risk-Utility
C. Custom
D. Statutory Compliance
CHAPTER 13. PROVING NEGLIGENCE CLAIMS
A. Judge and Jury
B. Substitutes for Factual Evidence: Res Ipsa Loquitur
CHAPTER 14. ACTUAL HARM & FACTUAL CAUSE
A. Actual Harm
B. The Factual Cause Requirement
C. The But-For Test of Causation
D. Problems with and Alternatives to the But-For Test: The
Substantial Factor Test and Tests Aggregating Conduct
E. Proving Causation
F. Proving Which Defendant’s Negligence Caused Harm
G. Special Problems: What Harm Was Caused?
CHAPTER 15. SCOPE OF LIABILITY (PROXIMATE CAUSE)
A. Rules, Rationales and Context
B. The General Rules of Foreseeability
C. Intervening Acts or Forces
D. Alternatives
xi
SUBPART B. DEFENSES
CHAPTER 16. FAULT OF THE PLAINTIFF
A. General Rules
B. Comparative Fault
C. Related Doctrines and Special Cases
CHAPTER 17. ASSUMPTION OF THE RISK
A. Express Assumption of Risk
B. Implied Assumption of Risk
CHAPTER 18. STATUTES OF LIMITATION AND FEDERAL
PREEMPTION
A. Statutes of Limitation
B. Federal Preemption
PART IV. EXPANDED OR LIMITED DUTIES OF CARE IN
PHYSICAL HARM CASES
CHAPTER 19. EXPANDED DUTIES OF CARE: CARRIERS,
INNKEEPERS AND FIDUCIARIES
CHAPTER 20. PREMISES LIABILITY
A. Duties to Those on the Premises
B. Duties to Those Outside the Premises
C. Duties of Vendors and Lessors
CHAPTER 21. LIABILITY OF HEALTH CARE PROVIDERS
A. Medical Malpractice
B. Hospitals and Managed Care Organizations
C. Nursing Homes and Residential Facilities
CHAPTER 22. LIABILITY OF GOVERNMENT ENTITIES,
OFFICERS AND EMPLOYEES
A. Government Entities
B. Individual Government Agents
C. Civil Rights Claims
CHAPTER 23. FAMILY MEMBERS AND CHARITIES
A. Family Members
B. Charities
CHAPTER 24. PROFESSIONAL RISK-TAKERS
CHAPTER 25. LIMITING LIABILITY FOR NON-ACTION
A. The General Rules of Non-Action
B. General Duties to Act Affirmatively to Rescue or Assist
CHAPTER 26. DUTY TO PROTECT FROM THIRD
PERSONS AND FROM SELF-HARM
A. The No-Duty Rule
xii
B. Duty Based on Defendant’s Relationship to Plaintiff

C. Duty Based on Defendant’s Relationship to a Dangerous
Person
PART V. SPECIAL TYPES OF HARM
CHAPTER 27. PRENATAL AND BIRTH-RELATED INJURY
A. Prenatal or Preconception Injury
B. Wrongful Birth, Conception or Life
CHAPTER 28. WRONGFUL DEATH AND SURVIVAL
ACTIONS
CHAPTER 29. EMOTIONAL HARM
A. Introduction to Emotional Harm
B. Intentional or Reckless Infliction of Emotional Distress
C. Negligent Infliction of Emotional Harm
CHAPTER 30. NUISANCE
PART VI. VICARIOUS LIABILITY, STRICT LIABILITY,

AND PRODUCTS LIABILITY
CHAPTER 31. VICARIOUS LIABILITY FOR PHYSICAL
HARMS
CHAPTER 32. STRICT LIABILITY FOR ANIMALS AND
ABNORMALLY DANGEROUS ACTIVITIES
A. Introduction
B. Strict Liability for Animals
C. Strict Liability for Abnormally Dangerous Activities
D. Limitations and Defenses
CHAPTER 33. PRODUCTS LIABILITY
A. Delineating the Field
B. Tort Liability for Defective Products
C. Defenses
PART VII. DAMAGES, APPORTIONMENT, AND
ALTERNATIVE SYSTEMS
CHAPTER 34. DAMAGES
A. Compensatory Damages
B. Punitive Damages
CHAPTER 35. APPORTIONMENT OF LIABILITY AMONG
PARTIES
A. Introduction: Joint and Several Liability and Several Liability
B. Persons and Conduct Subject to Apportionment
C. Standards
D. Special Cases for Apportionment
E. Other Apportionment Systems
xiii
CHAPTER 36. ALTERNATIVE SYSTEMS FOR

COMPENSATING INJURY
A. Criticism of Tort
B. Workers’ Compensation
C. Other Injury Systems
PART VIII. DIGNITARY AND ECONOMIC TORTS
SUBPART A. DIGNITARY TORTS
CHAPTER 37. DEFAMATION
A. Introducing Defamation
B. Common Law Requirements
C. Defenses
D. Constitutional Limitations on Recovery
E. Remedies
CHAPTER 38. PRIVACY
CHAPTER 39. MISUSING JUDICIAL PROCESS
A. Introduction: Tortious Use of the Legal Process
B. Malicious Prosecution
C. Wrongful Civil Litigation
D. Abuse of Process
E. Reforms and New Directions
CHAPTER 40. INTERFERENCE WITH FAMILY
RELATIONSHIPS
SUBPART B. ECONOMIC TORTS
CHAPTER 41. ECONOMIC TORTS AND ECONOMIC LOSS
RULES
A. Economic Loss: An Introduction
B. Negligent Economic Loss in the Stranger Context
C. Negligent Economic Loss and Contracting Parties
D. Scope and Exceptions
CHAPTER 42. INTERFERENCE WITH CONTRACT AND
ECONOMIC INTERESTS
A. The Core Rules of Intentional Interference with Contract
B. Improper Interference
C. Intentional Interference with Economic Opportunity
D. The Prima Facie Tort
E. Negligent Interference with Contract and Opportunity
CHAPTER 43. MISREPRESENTATION AND FALSEHOODS
A. Injurious Falsehood
B. Fraudulent Misrepresentations
C. Negligent Misrepresentation
D. Innocent Misrepresentation
E. Major Issues
xiv
F. Economic Harms in Special Relationships

CHAPTER 44. ECONOMIC HARM TO INTANGIBLE
INTERESTS BY CONVERSION OR SPOLIATION
A. Conversion of Intangible Economic Interests
B. Spoliation of Evidence
CHAPTER 45. LEGAL MALPRACTICE
A. Malpractice in Civil Matters: Prima Facie Case
B. Malpractice in Civil Matters: Defenses
C. Malpractice in Civil Matters: Damages
D. Malpractice in Criminal Cases
CHAPTER 46. UNFAIR COMPETITION: TRADEMARKS,
TRADE SECRETS AND PUBLICITY RIGHTS
TABLE OF CASES
INDEX
xv
Table of Contents
_________
PREFACE
ACKNOWLEDGMENTS
PART I. INTRODUCING TORT LAW
CHAPTER 1. DEFINING TORT LAW
§ 1.1 Defining Torts
§ 1.2 Bases of Tort Liability
§ 1.3 Types of Interests Protected
§ 1.4 Torts and Crimes
§ 1.5 Torts and Contracts
§ 1.6 Torts and Property
§ 1.7 Torts and Regulatory Control
§ 1.8 Torts and Personal Injury Law
§ 1.9 The Coherence of Tort Law
CHAPTER 2. AIMS, POLICIES, HISTORY AND METHODS
OF TORT LAW
A. Aims and Policies of Tort Law
§ 2.1 Justice, Policy, and Process Aims in Summary
§ 2.2 Corrective Justice, Distributive Justice, and Policy
§ 2.3 Fault and Other Normative Bases for Liability
§ 2.4 Compensation, Risk Distribution, and Fault
§ 2.5 Deterrence
§ 2.6 Alternative Compensation Systems
§ 2.7 Process Values in Tort Law
B. History, Methods and Procedures of Tort Law
§ 2.8 Historical Development of Tort Law
§ 2.9 Common-Law Analysis and the Doctrine of Precedent
§ 2.10 Tort Rules and What They Do
CHAPTER 3. TORT LAW IN PRACTICE
A. Adjudication of Tort Cases
§ 3.1 Trials and Appeals
§ 3.2 Judge, Jury, and Community Values
B. Fundamental Operating Conceptions
§ 3.3 The Prima Facie Case and the Burden of Proof
§ 3.4 Affirmative Defenses
§ 3.5 Privilege, Justification, Excuse and Immunity
C. The Background Conditions of Tort Law
§ 3.6 Remedies and Attorney’s Fees
§ 3.7 Sources of Tort Law
§ 3.8 Liability Insurance
xvi
PART II. INTENTIONAL TORTS TO PERSONS OR

PROPERTY
CHAPTER 4. DIRECT AND INTENTIONAL
A. Scope of the Chapter
§ 4.1 Scope of the Chapter
B. Intent and Related Concepts
§ 4.2 The Meaning of Intent
§ 4.3 Intent and Motive
§ 4.4 Intent and Negligence
§ 4.5 Intent and Reckless or Wanton Misconduct
C. Battery
§ 4.6 Simple Battery
§ 4.7 Harm or Offense Required to Establish Simple Battery
§ 4.8 Nature of Intent Required to Establish Simple Battery
§ 4.9 The Bodily Contact Required to Establish Simple Battery
§ 4.10 Battery and Other Torts: Acts and Omissions
D. Assault
§ 4.11 Simple Assault
§ 4.12 Anticipation of Imminent Touching
§ 4.13 Assault, Crime, and Other Torts
E. False Imprisonment
§ 4.14 Simple False Imprisonment
§ 4.15 Methods of Confinement
§ 4.16 Duty to Release from Confinement
§ 4.17 False Imprisonment and Other Torts
F. Extended Liability and Damages
§ 4.18 Extended Liability or Transferred Intent
§ 4.19 Extended Liability: The Pros and Cons
§ 4.20 Damages for Trespassory Torts to the Person
§ 4.21 Infliction of Emotional Distress
CHAPTER 5. INTENTIONAL INTERFERENCE WITH REAL
PROPERTY: TRESPASS TO LAND
§ 5.1 Elements and Terminology
§ 5.2 Intent Required
§ 5.3 Distinguishing Trespass from Nuisance
§ 5.4 Protecting Interests in Possession and Physical Integrity
§ 5.5 Tangible Entry
§ 5.6 Entries Above the Surface
§ 5.7 Entries Below the Surface
§ 5.8 Remedies
§ 5.9 Temporary or Continuing Trespass vs. Permanent or
Completed Trespass
§ 5.10 Extended Liability
xvii
CHAPTER 6. INTENTIONAL INTERFERENCE WITH

TANGIBLE PERSONAL PROPERTY: TRESPASS TO
CHATTELS AND CONVERSION
§ 6.1 Development of Liability for Interference with Chattels
§ 6.2 Trespass to Chattels
§ 6.3 Conversion of Chattels—Elements and Issues
§ 6.4 Conversion: Intent Required
§ 6.5 Property Subject to Conversion
§ 6.6 Dominion or Control Required
§ 6.7 Methods of Committing Conversion—Generally
§ 6.8 Conversion by Creditors
§ 6.9 Conversion by Bailees
§ 6.10 Contract and Tort: Conversion and the Bailment Contract
§ 6.11 The Bailor’s Option to Sue “In Tort” or “In Contract” and
the Economic Loss Rule
§ 6.12 The Bona Fide Purchaser of Converted Tangible Goods
§ 6.13 The Bona Fide Purchaser of Converted Money or Checks
§ 6.14 Remedies for Conversion
§ 6.15 Statutes of Limitation in Conversion
CHAPTER 7. DEFENSES TO INTENTIONAL TORTS
A. Self-Defense and Defense of Others
§ 7.1 General Rule
§ 7.2 When Retreat Is Required
§ 7.3 Objective vs. Subjective Perceptions of Threat
§ 7.4 Types of Harm Appropriate for Self-Defense
§ 7.5 Defending Another Person from Apparent Attack
B. Discipline
§ 7.6 Parental Privileges to Discipline Children
§ 7.7 Discipline by Non-Parents in Charge of Minors
C. Defense and Recovery of Property
§ 7.8 Defending Possession of Land or Chattels: General Rule
§ 7.9 Qualifying and Explaining the General Rule
§ 7.10 Deadly Traps in Defense of Property: Spring Guns
§ 7.11 Qualifying and Considering the Deadly-Trap Rules
§ 7.12 Types of “Traps” and Negligence Law
§ 7.13 Repossession of Land
§ 7.14 Repossession of Chattels: General Rules
§ 7.15 The Repossessing Seller
§ 7.16 Entering Another’s Land to Recapture Chattels
D. Privileges to Detain or Arrest
§ 7.17 The Merchant’s Privilege to Detain for Investigation
§ 7.18 Privileged Arrests
E. Necessity
§ 7.19 Private Necessity
§ 7.20 Public Necessity
§ 7.21 Public Entities: Necessity, Police Power, and “Taking”
xviii
CHAPTER 8. CONSENT
§ 8.1 General Principles
§ 8.2 Manifestation of Consent
§ 8.3 Unmanifested Consent
§ 8.4 Scope of Consent
§ 8.5 Revocation or Termination of Consent
§ 8.6 Incapacity to Give Consent
§ 8.7 Consent on Behalf of Another
§ 8.8 Mistake or Misrepresentation Negating Consent
§ 8.9 Consent Obtained by Duress or Coercion
§ 8.10 Consent Obtained by Abuse of Power or Position
§ 8.11 Medical Battery and Informed Consent
§ 8.12 Emergency as a Substitute for Consent
§ 8.13 Consent to Crime
PART III. NEGLIGENT PHYSICAL HARMS TO PERSONS
OR PROPERTY
SUBPART A. THE PRIMA FACIE CASE
CHAPTER 9. THE NEGLIGENCE ACTION: AN
INTRODUCTION
A. Characteristics
§ 9.1 Characteristics of the Negligence Case
B. Development
§ 9.2 Negligence: The Common Law Background
§ 9.3 Negligence: Courts Adopt a General Principle of Liability
for Fault
§ 9.4 Negligence: After Adoption of the Fault Principle
C. Fundamentals of Negligence Liability
§ 9.5 Elements of the Prima Facie Case for Negligence
§ 9.6 The Elements: Meaning and Terminology
§ 9.7 Negligence as Conduct, Not State of Mind
CHAPTER 10. DUTY AND THE ORDINARY STANDARD OF
REASONABLE CARE UNDER THE CIRCUMSTANCES
A. The Existence of Duty
§ 10.1 General Rules of Duty
§ 10.2 Duty vs. Breach Confusion
§ 10.3 Determining the Existence of Duty
§ 10.4 Foreseeability and Duty Determinations
B. The Ordinary Standard of Reasonable Care
§ 10.5 The Objective Reasonable Person Standard
§ 10.6 Circumstances as Part of the Standard: Special Danger
C. Particular Circumstances Related to the Standard of Care
§ 10.7 Emergency and Unavoidable Accident
§ 10.8 Objective and Subjective Features of the Standard
§ 10.9 Physical Characteristics
§ 10.10 Mental Capacity
§ 10.11 Bases for and Alternatives to the Mental Capacity Rules
§ 10.12 Knowledge, Perception, Memory, Experience, and Skills
xix
§ 10.13 Intoxication
D. The Standard of Care for Children
§ 10.14 The General Standard of Care for Children
§ 10.15 Rationales for the Child Standard
§ 10.16 Holding Children to an Adult Standard
E. Other Standards of Care
§ 10.17 Alternative Standards
§ 10.18 Gross Negligence, Recklessness, and Wanton Misconduct
CHAPTER 11. IMPORTING STATUTORY STANDARDS OF
CARE: NEGLIGENCE PER SE
§ 11.1 The Rule of Negligence Per Se
§ 11.2 Statutes Creating a Standard of Care
§ 11.3 Negligence Per Se vs. Private Right of Action
§ 11.4 Alternatives to Negligence Per Se: Evidence of Negligence
§ 11.5 Rationales for Negligence Per Se
§ 11.6 Type of Harm Prevented by the Statute
§ 11.7 Class of Persons Protected Under the Statute
§ 11.8 Interpreting the Scope of Risk
§ 11.9 Excused and Unexcused Violations
CHAPTER 12. BREACH OF DUTY
A. Negligent Conduct
§ 12.1 Specific Negligent Acts
B. Foreseeability and Risk-Utility
§ 12.2 Foreseeability of Harm in Breach
§ 12.3 Unstructured Weighing of Reasonableness
§ 12.4 Structured Weighing of Risks and Utilities
§ 12.5 Supporting and Criticizing Structured Risk-Utility
Assessments
C. Custom
§ 12.6 Custom or Practice: General Rules
§ 12.7 Limitations on the Use of Custom and Practice
§ 12.8 Private Standards: Defendant’s Own “Customs” or
Practices
§ 12.9 Entering Transactions in Light of Custom
D. Statutory Compliance
§ 12.10 Compliance with Statute
CHAPTER 13. PROVING NEGLIGENCE CLAIMS
A. Judge and Jury
§ 13.1 Roles of the Judge and Jury in Negligence Cases
§ 13.2 Burden of Proof and Types of Evidence: Basic Information
B. Substitutes for Factual Evidence: Res Ipsa Loquitur
§ 13.3 Res Ipsa Loquitur: General Rules
§ 13.4 Inferences Permitted, Required or Unpermitted
§ 13.5 Estimating Probabilities of Negligence
§ 13.6 Res Ipsa Cases: Illustrations
§ 13.7 Attributing Fault to the Defendant
xx
CHAPTER 14. ACTUAL HARM & FACTUAL CAUSE

A. Actual Harm
§ 14.1 The Requirement of Actual Harm
B. The Factual Cause Requirement
§ 14.2 Factual Cause and Four Forms of Common Issues
§ 14.3 Terminology and Structure: Factual Cause and Scope of
Liability (Proximate Cause)
C. The But-For Test of Causation
§ 14.4 The But-For Test of Factual Cause
§ 14.5 But-For Analysis and the Hypothetical Alternative Case
D. Problems with and Alternatives to the But-For Test
§ 14.6 Alternate Tests When But-For Analysis Fails: The
Substantial Factor Test and Tests Aggregating Conduct
E. Proving Causation
§ 14.7 Connecting Negligence and Harm
§ 14.8 Evidence and Inferences of But-For Causation
F. Proving Which Defendant’s Negligence Caused Harm
§ 14.9 Alternative Causes and the Shifted Burden of Proof
§ 14.10 Statistical Substitutes for Causation: Market Share
Liability
G. Special Problems: What Harm Was Caused?
§ 14.11 The Lost Chance of Recovery
CHAPTER 15. SCOPE OF LIABILITY (PROXIMATE CAUSE)
A. Rules, Rationales and Context
§ 15.1 Introduction
§ 15.2 Reasons for Scope of Liability Limitations
§ 15.3 Relation to Factual Cause
§ 15.4 Relation to Negligence (Breach of Duty)
§ 15.5 Relation to Duty
§ 15.6 Patterns and Formal Tests of Scope of Liability
§ 15.7 The Direct-Cause Pattern and Foreseeable Harms
§ 15.8 The Direct-Cause Pattern and Unforeseeable Harms
§ 15.9 The Intervening Cause Pattern and Superseding Cause
Analysis
B. The General Rules of Foreseeability
§ 15.10 Foreseeability Terminology: Scope of Risk
§ 15.11 Foreseeability Required: Extent of Harm
§ 15.12 Foreseeability Required: Manner of Harm
§ 15.13 Injury Remote in Time or Distance
C. Intervening Acts or Forces
§ 15.14 Intervening Intentional or Criminal Acts
§ 15.15 Intervening Forces of Nature
§ 15.16 Foreseeable Intervening Negligent Acts
§ 15.17 Unforeseeable Intervening Acts
§ 15.18 Using “Proximate Cause” as a No-Duty Rule
§ 15.19 Plaintiff’s Own Acts as a Superseding Cause
D. Alternatives
§ 15.20 Joint and Several Liability and Comparative Fault
§ 15.21 Abolishing Superseding Cause Analysis
xxi
SUBPART B. DEFENSES
CHAPTER 16. FAULT OF THE PLAINTIFF

A. General Rules
§ 16.1 Effects of Plaintiff Fault
§ 16.2 The Parallel Analysis of Plaintiff and Defendant Fault
B. Comparative Fault
§ 16.3 Comparative Fault
§ 16.4 Assigning Shares of Fault or Responsibility to the
Plaintiff
§ 16.5 All-or-Nothing Judgments After Comparative Fault
§ 16.6 Allocating Full Responsibility to the Defendant in the
Interests of Policy or Justice: Plaintiff No-Duty Rules
§ 16.7 Traditional Exceptions to the Contributory Negligence
Bar and Their Status Today
C. Related Doctrines and Special Cases
§ 16.8 Effect of Plaintiff’s Illegal Acts
§ 16.9 Distinguishing Avoidable Consequences
§ 16.10 The Role of Avoidable Consequences in Comparative Fault
Regimes
§ 16.11 Comparative Fault or Avoidable Consequences in Seatbelt
and Other Safety Precaution Cases
CHAPTER 17. ASSUMPTION OF THE RISK
A. Express Assumption of Risk
§ 17.1 Shifting Responsibility by Agreement
§ 17.2 Contractual Limitations
§ 17.3 Public Policy Limitations
B. Implied Assumption of Risk
§ 17.4 The Traditional Rule: Assumption of Risk as a Complete
Bar
§ 17.5 Development of Constraining Rules
§ 17.6 Discarding the Defense of Implied Assumption of Risk
§ 17.7 Primary and Secondary Assumption of Risk
§ 17.8 Sports Cases
CHAPTER 18. STATUTES OF LIMITATION AND FEDERAL
PREEMPTION
A. Statutes of Limitation
§ 18.1 Foundational Principles and Rationales
§ 18.2 The Accrual Rule
§ 18.3 The Discovery Rule
§ 18.4 Statutes of Repose
§ 18.5 Continuing Negligence
§ 18.6 Tolling, Grace Periods, and Postponed Accrual
§ 18.7 Accrued Claims with Latent Harm
B. Federal Preemption
§ 18.8 Federal Preemption
xxii
PART IV. EXPANDED OR LIMITED DUTIES OF CARE IN

PHYSICAL HARM CASES
CHAPTER 19. EXPANDED DUTIES OF CARE: CARRIERS,
INNKEEPERS AND FIDUCIARIES
§ 19.1 Duty of Common Carriers in Personal-Injury Cases
§ 19.2 Who Counts as a Common Carrier or Passenger
§ 19.3 Protecting Passengers of Common Carriers from Third
Persons and Other External Risks
§ 19.4 Duty of Innkeepers in Personal-Injury Cases
§ 19.5 Duty of Fiduciaries in Personal-Injury Cases
§ 19.6 Fiduciary Relationship Imposing an Affirmative Duty to
Protect from Others
CHAPTER 20. PREMISES LIABILITY
A. Duties to Those on the Premises
§ 20.1 Common-Law Classification of Entrants on Land
§ 20.2 Duty Owed to Trespassers: Traditional Rule
§ 20.3 The Discovered-Trespasser Exception
§ 20.4 Licensees: The Classification
§ 20.5 Duty Owed to Licensees: Traditional Rule
§ 20.6 Invitees: The Classification
§ 20.7 Duty Owed to Invitees
§ 20.8 Children on the Land
§ 20.9 Changing Duties and Categories: Extending the Duty of
Reasonable Care to Entrants Other than Invitees
§ 20.10 Recreational Use Statutes
B. Duties to Those Outside the Premises
§ 20.11 Natural Conditions on the Land
§ 20.12 Active Conduct and Artificial Conditions on the Land
C. Duties of Vendors and Lessors
§ 20.13 Vendors of Land
§ 20.14 Traditional Common Law Duties of Lessors
§ 20.15 The Implied Warranty of Habitability
CHAPTER 21. LIABILITY OF HEALTH CARE PROVIDERS
A. Medical Malpractice
1. Summary and Context
§ 21.1 Malpractice Rules in Summary
§ 21.2 Professional Status and Its Significance
2. Duty and the Doctor-Patient Relationship
§ 21.3 General Rule and Exceptions
§ 21.4 Duties to Non-Patients
3. Standards of Care and Attendant Proof Requirements
§ 21.5 The Traditional Medical Standard of Care
§ 21.6 The Reasonable Care Standard
§ 21.7 The Relevant Geographical Community
§ 21.8 The Expert Testimony Requirement
4. Informed Consent
xxiii
§ 21.9 Informed Consent: Underlying Principle and Elements

§ 21.10 General Standards of Disclosure
§ 21.11 Particular Types of Information to Be Disclosed
§ 21.12 The Causation Requirement in Informed Consent Cases
5. Defenses and Statutory Limits on Liability
§ 21.13 Good Samaritan Statutes
§ 21.14 The “Malpractice Crisis” Statutes
§ 21.15 Patient’s Contributory Negligence
B. Hospitals and Managed Care Organizations
§ 21.16 Common-Law Responsibility of Hospitals
§ 21.17 Mandatory Hospital Screening and Treatment: EMTALA
§ 21.18 Managed Care Organizations
C. Nursing Homes and Residential Facilities
§ 21.19 Injuries in Nursing Homes and Other Care Facilities
§ 21.20 Standard of Care for Nursing Homes
§ 21.21 Common-Law Claims Against Nursing Homes
§ 21.22 Statutory Claims Against Nursing Homes
CHAPTER 22. LIABILITY OF GOVERNMENT ENTITIES,
A. Government Entities
1. Introduction: Traditional Immunities
§ 22.1 Traditional Immunities and Their Passing
2. Federal Government Liability Under the FTCA
§ 22.2 The Plan of Federal Government Tort Liability
§ 22.3 The Discretionary Immunity
§ 22.4 The Feres Rule: Tort Claims by Military Personnel
§ 22.5 Other Statutory Exceptions to FTCA Liability
3. Immunities and Liabilities of State and Local Entities
§ 22.6 State Sovereign Immunity and Its Waiver
§ 22.7 Local Public-Entity Immunity and Its Waiver
§ 22.8 Discretionary Immunity of State and Local Entities
§ 22.9 The Public Duty Doctrine
§ 22.10 Excluding Liability for Police and Fire Protection
§ 22.11 Excluding Liability for Release of Dangerous Persons
B. Individual Government Agents
§ 22.12 State and Local Officers and Employees
§ 22.13 Federal Officers and Employees
C. Civil Rights Claims
§ 22.14 Federal Civil Rights Claims: § 1983
§ 22.15 Section 1983 Claims Against State and Local Officials
§ 22.16 Section 1983 Claims Against State and Local Entities
CHAPTER 23. FAMILY MEMBERS AND CHARITIES
A. Family Members
§ 23.1 Spousal Immunity
§ 23.2 Parental Immunity
B. Charities
§ 23.3 Charitable Immunity
xxiv
§ 23.4 Individual Immunities

CHAPTER 24. PROFESSIONAL RISK-TAKERS
§ 24.1 Shifting Responsibility to Professional Risk-Takers
§ 24.2 Limited Duties to Professional Risk-Takers: The
Firefighters’ Rule
§ 24.3 Risks Covered by the Risk-Takers Rule
§ 24.4 Persons Covered by the Risk-Takers Rule
CHAPTER 25. LIMITING LIABILITY FOR NON-ACTION
A. The General Rules of Non-Action
§ 25.1 The No-Duty-to-Rescue Rule and Exceptions
§ 25.2 Scope of the Rule Protecting Non-Action
B. General Duties to Act Affirmatively to Rescue or Assist
§ 25.3 Innocently Harming or Creating a Risk of Harm
§ 25.4 Special Relationship Between Plaintiff and Defendant
§ 25.5 Beginning to Rescue or Assist
§ 25.6 Undertaking Creating a Duty to the Plaintiff
§ 25.7 Undertaking Creating a Duty to Third Persons
CHAPTER 26. DUTY TO PROTECT FROM THIRD
A. The No-Duty Rule
§ 26.1 No Duty to Control Others
§ 26.2 Actively Creating Risk of Injury by Third Person
B. Duty Based on Defendant’s Relationship to Plaintiff
§ 26.3 Types of Relationships Recognized
§ 26.4 Landowner’s Duty to Protect Lawful Entrants
§ 26.5 Landlord’s Duty to Protect Tenants and Their Guests
§ 26.6 Custodian’s and School’s State-Law Duty to Protect
Wards or Students
§ 26.7 Federal Civil Rights Claims
§ 26.8 Employer’s Duty to Protect Employees
C. Duty Based on Defendant’s Relationship to a Dangerous
Person
§ 26.9 Relationships Recognized
§ 26.10 Negligent Entrustment
§ 26.11 Control and Other Means of Protecting from Dangerous
Persons
§ 26.12 Enhancing Dangers: Providers of Alcohol
PART V. SPECIAL TYPES OF HARM
CHAPTER 27. PRENATAL AND BIRTH-RELATED INJURY
A. Prenatal or Preconception Injury
§ 27.1 Prenatal Injury
§ 27.2 Toxic Injuries and Parental Liability
§ 27.3 Preconception Negligence
B. Wrongful Birth, Conception or Life
§ 27.4 Negligent Interference with Mother’s Opportunity to
Avoid or Terminate a Pregnancy
§ 27.5 Special Damages Rules
xxv
CHAPTER 28. WRONGFUL DEATH AND SURVIVAL

ACTIONS
§ 28.1 Wrongful Death and Survival Actions
§ 28.2 Survival Actions—Scope and Damages
§ 28.3 Wrongful Death Actions: Pecuniary Loss Damages
§ 28.4 Wrongful Death Actions: Non-Pecuniary Damages
§ 28.5 Procedure, Distribution, Defenses and Damages
CHAPTER 29. EMOTIONAL HARM
A. Introduction to Emotional Harm
§ 29.1 Introduction to Emotional Distress and Harm in Tort Law
§ 29.2 Stand-Alone Emotional Distress as a Tort in Itself: Policy
Concerns
§ 29.3 Stand-Alone Emotional Distress as a Tort in Itself:
Historical Development
B. Intentional or Reckless Infliction of Emotional Distress
§ 29.4 Overlapping or Duplicating Claims for Emotional Distress
§ 29.5 Intentional Infliction of Emotional Distress: Rules of
Liability
§ 29.6 Common Characteristics of Extreme and Outrageous
Conduct
§ 29.7 The Severe Distress Requirement
§ 29.8 Intentional Infliction and Emotional Distress of Third
Persons
C. Negligent Infliction of Emotional Harm
§ 29.9 Negligent Infliction of Emotional Harm: General Rules of
Liability
§ 29.10 Emotional Harm Arising from Risks or Harms to Others
§ 29.11 Loss of Consortium
§ 29.12 Emotional Distress Arising from Direct Risks of Physical
Harm
§ 29.13 Toxic Exposures: Fear of Future Harm
§ 29.14 Emotional Distress from False or Erroneous Information
§ 29.15 Duties of Care to Protect Emotional Well-Being
Independent of Physical Risks
§ 29.16 Sensitive Plaintiffs
CHAPTER 30. NUISANCE
§ 30.1 Introducing Nuisance Law
§ 30.2 Defining and Illustrating Private Nuisance
§ 30.3 Intent, Negligence and Strict Liability
§ 30.4 Substantial and Unreasonable Interference
§ 30.5 Non-Invasive Nuisances
§ 30.6 Public Nuisance
§ 30.7 Remedies
PART VI. VICARIOUS LIABILITY, STRICT LIABILITY,
AND PRODUCTS LIABILITY
CHAPTER 31. VICARIOUS LIABILITY FOR PHYSICAL
HARMS
§ 31.1 Vicarious Liability Generally
§ 31.2 Rationales for Respondeat Superior Liability
§ 31.3 Scope of Employment: General Principles
§ 31.4 Limits on Scope of Employment
§ 31.5 Independent Contractors: General Rules
§ 31.6 Independent Contractors Performing Nondelegable Duties
xxvi
§ 31.7 Apparent Agency and Agency by Estoppel

§ 31.8 Borrowed Servants
CHAPTER 32. STRICT LIABILITY FOR ANIMALS AND
A. Introduction
§ 32.1 Pockets of Strict Liability in a Fault-Based System
B. Strict Liability for Animals
§ 32.2 Trespassing Animals
§ 32.3 Abnormally Dangerous Domestic Animals
§ 32.4 Wild Animals
C. Strict Liability for Abnormally Dangerous Activities
§ 32.5 Historical Context: From Rylands to the Restatement
§ 32.6 Contemporary Abnormal-Danger Cases
§ 32.7 Rationales for Abnormal-Danger Strict Liability
D. Limitations and Defenses
§ 32.8 Limitations on Strict Liability
§ 32.9 Defenses to Strict Liability
CHAPTER 33. PRODUCTS LIABILITY
A. Delineating the Field
§ 33.1 Theories of Recovery
§ 33.2 History, Rationales, and Decline of Strict Liability
§ 33.3 The Economic Loss Rule: Stand-Alone Economic Harm
B. Tort Liability for Defective Products
1. The Modern Typology of Defect
§ 33.4 The Defect Requirement
§ 33.5 Summary of Types of Defect
2. Manufacturing and Design Defects
§ 33.6 The Consumer Expectations Test
§ 33.7 Proving Manufacturing Defects
§ 33.8 Problems with the Consumer Expectations Test: Open
and Obvious Dangers and Other Difficulties
§ 33.9 The Risk-Utility Test for Design Defects
§ 33.10 Proving a Design’s Risks and Utilities
§ 33.11 Reasonable Alternative Design
§ 33.12 Shifting the Burden of Proof in Design Defect Cases
3. Marketing Defects
§ 33.13 The Warnings Requirement
§ 33.14 Adequacy of Warnings
§ 33.15 Learned Intermediaries and Sophisticated Users
§ 33.16 Causation in Failure-to-Warn Cases
C. Defenses
§ 33.17 Contributory Negligence and Assumption of Risk
§ 33.18 Unforeseeable Misuse, Alteration and Modification
§ 33.19 Statutory Defenses
§ 33.20 Compliance with Statute and Preemption
§ 33.21 Statutes of Limitation
xxvii
PART VII. DAMAGES, APPORTIONMENT, AND

ALTERNATIVE SYSTEMS
CHAPTER 34. DAMAGES
A. Compensatory Damages
§ 34.1 Basic Compensatory Damages for Personal Injury
§ 34.2 Damages for Harms to Property
§ 34.3 Adjustments in Basic Compensatory Damages
B. Punitive Damages
§ 34.4 Punitive Damages and Their Bases
§ 34.5 Common Law Factors in Determining the Amount of
Punitive Damages
§ 34.6 Constitutional Requirements Governing the Award of
Punitive Damages
§ 34.7 “Tort Reform” Statutes Affecting Compensatory and
Punitive Damages
CHAPTER 35. APPORTIONMENT OF LIABILITY AMONG
PARTIES
A. Introduction: Joint and Several Liability and Several
Liability
§ 35.1 Apportionment of Liability: An Overview
§ 35.2 Traditional Rules and Joint and Several Liability
§ 35.3 Joint and Several Liability vs. Several Liability Systems
§ 35.4 Several Liability Systems
§ 35.5 General Effects of Adopting Several Liability Systems
B. Persons and Conduct Subject to Apportionment
§ 35.6 Immune and Nonparty Tortfeasors
§ 35.7 Types of Actionable Conduct Subject to Apportionment
C. Standards
§ 35.8 Apportionment Standards
D. Special Cases for Apportionment
§ 35.9 Defendants Who Negligently Risk Another Tortfeasor’s
Intentional Harm
§ 35.10 Defendants Who Are Under a Duty to Protect Plaintiff
from Another’s Negligence
E. Other Apportionment Systems
§ 35.11 Joint and Several Liability with Reallocation
§ 35.12 Hybrid Systems: Joint and Several Liability Based on
Threshold Percentages or Type of Damages
CHAPTER 36. ALTERNATIVE SYSTEMS FOR
COMPENSATING INJURY
A. Criticism of Tort
§ 36.1 Criticisms of the Tort System
B. Workers’ Compensation
§ 36.2 The Workers’ Compensation System
§ 36.3 Workers’ Compensation: Injury Arising Out of and In the
Course of Employment
§ 36.4 Workers’ Compensation: Accident vs. Disease
§ 36.5 Workers’ Compensation: Exclusive Remedy and Third
Parties
xxviii
C. Other Injury Systems

§ 36.6 Social Security Disability
§ 36.7 The Private Insurance Alternative
§ 36.8 Government Compensation Funds
§ 36.9 Taxing Industry to Create Compensation Funds
PART VIII. DIGNITARY AND ECONOMIC TORTS
SUBPART A. DIGNITARY TORTS

CHAPTER 37. DEFAMATION
A. Introducing Defamation
§ 37.1 Defamation: Scope
§ 37.2 Historical Development of Defamation Law
B. Common Law Requirements
§ 37.3 Elements of Defamation—Common Law and Constitution
§ 37.4 Requirement of Publication Generally
§ 37.5 The Requirement of Defamatory Content and Its Test
§ 37.6 Interpreting Meaning and Effect
§ 37.7 Defamation of and Concerning the Plaintiff
§ 37.8 The Requirement of Falsity vs. “The Truth Defense”
§ 37.9 Special Slander Rules
§ 37.10 Libel Per Quod
C. Defenses
§ 37.11 Absolute Privileges and Common Law Qualified Privileges
§ 37.12 Abuse or Loss of Privilege
§ 37.13 Revising Privileges After the Constitutional Cases
§ 37.14 The Anti-SLAPP Statutes
D. Constitutional Limitations on Recovery
§ 37.15 Constitutional Limitations on Recovery
§ 37.16 Who Are Public Officials
§ 37.17 Who Are Public Figures
§ 37.18 Proving Constitutional Levels of Fault
§ 37.19 Opinion Statements—Constitutional Protections
E. Remedies
§ 37.20 Remedies—Damages
§ 37.21 Non-Damages Remedies Including Money Disgorgement
CHAPTER 38. PRIVACY
§ 38.1 Privacy Torts: An Introduction
§ 38.2 Appropriation of the Plaintiff’s Personality
§ 38.3 Intrusion: Private Life and Information
§ 38.4 Publicizing Private Life
§ 38.5 False Light
CHAPTER 39. MISUSING JUDICIAL PROCESS
A. Introduction: Tortious Use of the Legal Process
§ 39.1 Scope, Policies and Immunities
B. Malicious Prosecution
§ 39.2 Elements
xxix
§ 39.3 Instigating or Continuing the Criminal Proceeding

§ 39.4 Absence of Probable Cause
§ 39.5 Improper Purpose or “Malice”
§ 39.6 Favorable Termination of the Prosecution
§ 39.7 Special Defenses
C. Wrongful Civil Litigation
§ 39.8 Elements
§ 39.9 Probable Cause in Wrongful Civil Litigation
§ 39.10 Malice or Improper Purpose
§ 39.11 Favorable Termination of Former Civil Suit
§ 39.12 Special-Injury or Special-Grievance Requirement
D. Abuse of Process
§ 39.13 Elements
§ 39.14 The Meaning of “Process” and Examples of Abuse
§ 39.15 Collateral Advantage and the “Act After” Requirement
E. Reforms and New Directions
§ 39.16 SLAPP Suits, Sanctions, and Counterclaims
CHAPTER 40. INTERFERENCE WITH FAMILY
RELATIONSHIPS
§ 40.1 Alienation of Affections and Criminal Conversation
§ 40.2 Interference with Parental Custody and Other Rights in
Children
§ 40.3 Alienation of a Parent’s or Child’s Affections
SUBPART B. ECONOMIC TORTS
CHAPTER 41. ECONOMIC TORTS AND ECONOMIC LOSS
RULES
A. Economic Loss: An Introduction
§ 41.1 Economic Loss
§ 41.2 Specific Economic Torts vs. General Negligence Claims for
Economic Loss
§ 41.3 The Core Economic Loss Rules: Contracting Parties and
Strangers
§ 41.4 Categories of Economic Torts
B. Negligent Economic Loss in the Stranger Context
§ 41.5 Strangers: Negligence Toward a Third Person Causing
Economic Loss to the Plaintiff
§ 41.6 Strangers: General Nonliability for Negligently Caused
Stand-Alone Economic Harm
§ 41.7 Strangers: Policies or Rationales for Limiting Liability
§ 41.8 Strangers: Exceptions
C. Negligent Economic Loss and Contracting Parties
§ 41.9 Contracting Parties: The Economic Loss Rule Generally
§ 41.10 Contracting Parties: Rationales and Policies for the
Economic Loss Rule
D. Scope and Exceptions
§ 41.11 Scope of and Exceptions to the No-Duty Economic Loss
Rule
CHAPTER 42. INTERFERENCE WITH CONTRACT AND
ECONOMIC INTERESTS
A. The Core Rules of Intentional Interference with Contract
xxx
§ 42.1 The Intentional Interference Tort

§ 42.2 Interference with Economic Relations by Committing
Other Torts
§ 42.3 General Rules of Intentional Interference Claims
§ 42.4 Elements of the Interference Claims
B. Improper Interference
§ 42.5 The Improper Interference Requirement
§ 42.6 Improper Motive or Purpose as a Basis for Liability
§ 42.7 Improper Means or Effects—Independently Tortious Acts,
Crimes or Violation of Statutes
§ 42.8 Specific Rules or Principles Protecting Interference,
Including Right of Competition, Advice, and Truth
C. Intentional Interference with Economic Opportunity
§ 42.9 Intentional Interference with Economic Opportunity:
General Rules
D. The Prima Facie Tort
§ 42.10 The Prima Facie Tort
E. Negligent Interference with Contract and Opportunity
§ 42.11 General Rule Inhibition Against Recovery for Negligently
Caused Economic Harm
CHAPTER 43. MISREPRESENTATION AND FALSEHOODS
A. Injurious Falsehood
§ 43.1 Falsehoods Published to Others Causing Plaintiff’s
Economic Harm
B. Fraudulent Misrepresentations
§ 43.2 Misrepresentation Torts: An Overview
§ 43.3 Misrepresentation as a Fact vs. a Tort
§ 43.4 Fraudulent Misrepresentation
C. Negligent Misrepresentation
§ 43.5 Negligent Misrepresentation
D. Innocent Misrepresentation
§ 43.6 Innocent Misrepresentation
E. Major Issues
§ 43.7 Reliance
§ 43.8 Factual Representations: Opinion, Law and Prediction
§ 43.9 Defenses and Remedies
F. Economic Harms in Special Relationships
§ 43.10 Breach of Fiduciary Duty, Bad Faith, Wrongful Discharge
and Economic Duress
CHAPTER 44. ECONOMIC HARM TO INTANGIBLE
INTERESTS BY CONVERSION OR SPOLIATION
A. Conversion of Intangible Economic Interests
§ 44.1 Expanding the Traditional Conversion Action
§ 44.2 Conversion of Money and Accounts
§ 44.3 Conversion and Contract
B. Spoliation of Evidence
§ 44.4 Intentional Spoliation by a Party to Litigation
§ 44.5 Intentional Spoliation by a Non-Party
§ 44.6 Negligent Spoliation of Evidence
§ 44.7 Factual Causation in Spoliation Cases
xxxi
CHAPTER 45. LEGAL MALPRACTICE

A. Malpractice in Civil Matters: Prima Facie Case
§ 45.1 Scope, Duties, and Elements
§ 45.2 Duty: Establishing a Client-Lawyer Relationship
§ 45.3 The Professional Standard of Care
§ 45.4 Breach of Duty
§ 45.5 Causation of Harm: General Rules
§ 45.6 Causation: The Case Within a Case
§ 45.7 Liability to Non-Clients
B. Malpractice in Civil Matters: Defenses
§ 45.8 Contributory Negligence/Comparative Fault
§ 45.9 In Pari Delicto and Quasi-Judicial Immunity
§ 45.10 Statute of Limitations
C. Malpractice in Civil Matters: Damages
§ 45.11 Compensatory Damages Generally
§ 45.12 Compensatory Damages in the Case-Within-a-Case Suit
D. Malpractice in Criminal Cases
§ 45.13 Criminal Malpractice: Prima Facie Case
§ 45.14 Criminal Malpractice: Defenses and Immunities
CHAPTER 46. UNFAIR COMPETITION: TRADEMARKS,
TRADE SECRETS AND PUBLICITY RIGHTS
§ 46.1 Unfair Competition and Trademark Infringement
§ 46.2 Sponsorship Confusion and Dilution in Trademark Law
§ 46.3 False Advertising and § 43(a) of the Lanham Act
§ 46.4 Product Design, Trade Dress, and Functional Features
§ 46.5 Ideas and Trade Secrets
§ 46.6 Rights in Personality and Publicity
TABLE OF CASES
INDEX
xxxiii
HORNBOOK ON TORTS
Second Edition
1
Part I
INTRODUCING TORT LAW

3
Chapter 1
DEFINING TORT LAW

Analysis
__________

A tort is conduct that constitutes a legal wrong and causes
harm for which courts will impose civil liability.1 The essence of
tort is the defendant’s potential for civil liability to the victim for
harmful wrongdoing and the victim’s corresponding potential for
compensation or other relief.
Tort law is predominantly common law. That is, judges rather
than legislatures usually define what counts as an actionable
wrong and thus as a tort; they also determine how compensation is
to be measured and what defenses may defeat the tort claim.
Nevertheless, statutes2 or even state3 or federal constitutions4 may
make certain conduct legally wrongful and may permit recovery of
damages for such conduct. So violation of statute or constitution,
alone or interacting with common law principles,5 is sometimes a
tort for which the violator is subject to liability. In limited
circumstances, international law may affect tort issues and even
form a basis for tort liability.6
Examples of torts can be found everywhere. In the absence of
some defense or special facts, it is a tort to punch another in the
nose, to negligently run an automobile into another, or to
negligently perform a medical operation. It may be a tort to sell a
defective product that causes harm. Some torts cause no physical
harm at all but are nonetheless actionable. For example, it is
tortious to maliciously prosecute a person without probable cause,
to damage reputation by libel, to interfere intentionally with a
contract, or to mislead a person by misrepresenting material

facts in connection with a sale. Many other torts can be described
or named, and in fact courts are free not only to prescribe limits on
tort actions but to recognize variations and even “new torts.”7
Tort law is primarily intended to redress legally recognized
harms by rendering a money judgment against the wrongdoer, or
“tortfeasor.”8 This award is usually a money award called
“damages,” and it is usually intended as a kind of compensation for
the harm suffered. In some cases, a punitive damages award may
be added to compensatory damages to deter further misconduct.
Other remedies that are infrequently available include restitution,
which forces the tortfeasor to disgorge gains he wrongfully
obtained by tort,9 and injunction, which compels him to cease his
tortious conduct.10 In the great majority of tort cases, however, a
favorable judgment for the victim means an award of money as
compensation for harm caused.11
Tort liability can be defined in part by the grounds on which it
is invoked. The term “tort” is derived from Latin roots meaning
“twisted,” as if to say tortious conduct is twisted conduct, conduct
that departs from the existing norm. As the word itself suggests,
torts are traditionally associated with wrongdoing in some moral
sense. In the great majority of cases today, tort liability is
grounded in the conclusion that the wrongdoer was at fault in a
legally cognizable way. It is not ordinarily enough to impose
liability that the defendant has merely caused harm by accident or
happenstance; he must also be at fault. This fault approach is often
associated with ideals of freedom; you are free to act without
liability, so long as you are not at fault in your actions.
There are many kinds of fault that have no legal significance at
all. It is a fault to be lazy or to use the salad fork for a meat dish,
but neither fault is a tort. Faulty conduct that is legally important
can be described in many ways, but legal fault in the law of torts is
usually sorted into two main categories: (1) intentional wrongs or
(2) negligent wrongs.12
Intentional torts. Intentional wrongs entail at least an intent on
the part of the defendant to engage in conduct that the law regards
as wrongful. The intentional tort feasor is usually consciously
aware of his wrongdoing. Even if he is not, however, he is always
aware of his act, and that may be sufficient to impose liability if
the act is one that is proscribed by common law or statute.
Negligence. Negligent wrongs entail unreasonably risky
behavior that actually causes harm. The defendant in the
negligence case is sometimes aware that he is taking unreasonable
risks; he is always in violation of reasonableness standards
whether he is consciously aware of that fact or not.
Expanding and limiting liability for fault. Although fault of

some kind is commonly found in tort cases, courts may at times
seem to expand liability beyond the limits of fault. Sometimes this
occurs when courts seem to define fault to include fairly ordinary
conduct. At other times, even faulty behavior does not result in
liability. Several reasons explain these apparent departures from
the fault principle. For instance, courts do not ordinarily impose
tort liability for negligence unless the negligence causes harm. And
courts may refuse to impose liability for wrongful conduct that in
fact causes harm that is remote or fortuitous. These and some
other instances may qualify or limit the fault principle.
Nevertheless, fault remains the basis of tort liability and a marker
of its limits in the overwhelming number of cases.
Strict liability. In a few instances tort law imposes strict
liability. Strict liability is liability without proof of fault. Apart
from these few instances, an accidentally caused harm is ordinarily
not a tort at all; there is no general strict liability. In contrast,
intentional or negligent infliction of physical harm is almost
always tortious, even if it is subject to defenses in a particular case.
The two best-known instances of common law strict liability are
cases in which the defendant engages in some abnormally
dangerous activity13 and those in which the defendant
manufactures a defective product.14 In both of those cases, liability
may be imposed as a matter of legal policy irrespective of the
defendant’s fault. In many instances of strict liability, however, the
defendant may be at fault in fact, even if the plaintiff has not
proved it.
Tort liability can be defined in part by the types of interests or
values it protects. Tort law recognizes three broad categories of
legal interests that deserve protection against wrongdoing. These
interests are a person’s interest in (1) primary autonomy, physical
security and physical liberty; (2) emotional security and other
intangible interests such as privacy and reputation; and (3)
economic security and opportunity.
Security of person and property. Legal rules give the greatest
protection to physical security of persons and property. Intentional
and negligent physical interference with persons are both
ordinarily tortious in the absence of a good justification. The
negligent driver who unintentionally strikes a pedestrian is liable
in tort just as the intentional bully who sexually harasses his
victim. When the defendant physically interferes with the
plaintiff’s person or the plaintiff’s property in a way that counts as
a tort, the plaintiff can recover for all her reasonably connected
damages, including reasonable damages for emotional harm and
for economic losses.
Emotional security and related interests. When it comes to
intangible harm without physical interference or physical harm,
courts are much more reluctant to impose tort liability. One form of
intangible harm is pure emotional harm. For example, one might
intentionally or negligently cause distress to the plaintiff by the
use of unpleasant words. In such cases the plaintiff may suffer
emotional injury but no physical interference with her person.
Some conduct that causes only intangible harm is tortious and
some is not, but courts often demonstrate great caution about
imposing liability for intangible harm
unless the defendant has physically interfered with the

plaintiff’s person or property15 or violated specific rights such as
the right to reputation16 or privacy.17
Economic harms. Very similar statements can be made about
pure economic harm, that is, pocketbook harms that do not result
from physical interference with person or property. The sign-
carrying protester or religious speaker who posts himself outside
the plaintiff’s shop may drive the plaintiff’s customers away. This
is stand-alone economic harm—harm that is not the result of
physical interference with person or property. Some intentional
harms of this kind may be actionable torts, but many negligent
economic harms are not.18 In this particular example, the right we
all have to comment honestly and truthfully would be most
significant. In other economic harm cases, cases that do not
necessarily involve free speech issues, different reasons may lead
to the same result, sometimes because courts prefer to leave
economic relations to the realm of contract law. There are
assuredly economic torts that will result in liability; the point here
is that courts are more cautious in protecting the economic
interest, as distinct from the physical security interest.
The relationship between tort law and criminal law is largely
explained by their respective purposes. The purpose of criminal
punishment is primarily to vindicate the state’s interests in
deterring crime and imposing justice. The purpose of tort liability
is in no way inconsistent, but its emphasis is different—it is
primarily to vindicate the individual victim and the victim’s
rights19 and secondarily to confirm and reinforce public standards
of behavior. Tort law thus shares with criminal law the goal of
deterring wrongful conduct, but tort law uses methods aimed at
securing compensation of the individual victim.
American common law, including tort law, grew out of English
common law. In the development of early English law, tort law in
turn grew out of criminal law. Judges who imposed punishment
upon lawbreakers also occasionally imposed civil liability. Judges
and lawyers gradually perceived that criminal punishment and
civil liability had related but distinct purposes. Tort law developed
into a separate field in itself, aimed at providing distinctly civil
remedies.
Today, a single act might constitute both a crime and a tort. For
example, if a defendant beats a person, he is almost certainly
committing a crime for which the state can prosecute and punish.
He is also committing a tort, for which the injured individual may
sue and recover compensation, whether or not the crime is
prosecuted.
In tort cases, courts will often take notice of the fact that the
defendant’s conduct amounted to a crime and will give weight to
this fact in determining whether the conduct also amounted to a
tort. But this does not work the other way around. Crime is usually
7
defined by statute; whether the defendant’s conduct is a tort is
not important in determining whether conduct violates criminal
law.
Substantive comparisons: intent and harm. Substantively
speaking, there is no necessary correlation between tort and crime.
The most fundamental basis for criminal liability is intent, often
very specific intent. Some kind of intent is also required for some
torts, but more commonly mere negligence coupled with actual
harm will suffice for liability. A second important difference in the
two fields can be seen in the different ways in which actual harm is
treated. Criminal law redresses the state’s interests in the security
of society. It may punish conduct that threatens those interests
even when no harm has been done. Speeding increases risks to
others and so may be punished criminally. Tort law, aimed at
protection of individuals, would never impose liability for speeding
alone; tort law would impose liability only if harm results.
Procedural comparisons. On the procedural side, tort and crime
differ enormously. Criminal prosecutions ordinarily must be
initiated and pursued by the government; tort suits may be
brought by an aggrieved individual, who decides (usually with a
lawyer’s assistance) whether to assert a claim and whether and
when to settle. Another distinction is that criminal prosecutions
can succeed only if the proof shows guilt beyond a reasonable
doubt; most tort suits use a more-likely-than-not standard.
Breach of contract is not in itself a tort. The conventional view
goes further. It holds that the fields of tort and contract are
entirely distinct because contract duties are created by the
promises of the parties, while tort duties are created by the courts
and imposed as rules of law. On this view, the province of torts is
rights and wrongs and the province of contract is agreements or
promises. This perception is that the fields of tort and contract
hardly touch each other, much less overlap. Another conventional
view supports the same conclusion. It asserts that contracts are
largely about economic matters such as buying and selling,
whereas torts typically involve physical harms.
A third point is not so often mentioned, but it is important.
Contract law is at least formally strict liability law. Most of tort
law, on the other hand, is at least formally fault-based.
Specifically, a person is often liable for a contract breach even if he
is not at fault and made every effort to perform the contract as
promised. But a person is not ordinarily liable under tort law even
for conduct that causes horrible injuries unless he is at fault in
some way. The reasoning and the formal themes of tort law thus
differ enormously from those of contract law.
Finally, in the actual practice of law, lawyers who negotiate and
draft contracts are seldom focused on litigation. Tort law, with its
emphasis on compensation after the fact rather than on planning,
is preeminently a law of litigation and litigators. Most cases are
settled, but they are settled on the basis of expected litigation
outcomes.
Some of the conventional views stated above are partly correct,
but they do not furnish a complete picture. The fields of tort and
contract do in fact overlap and share many of the same premises.
First, it is usually true that rules of law govern tort cases, while
the parties’ agreement determines contract liabilities; but the
parties’ agreement controls their rights only because courts accept
a rule of law that says so. For this reason, a rule of law ultimately
lies behind both tort and contract. Second, contractual promises
sometimes create or underlie tort duties, so that what begins as
contract ends as tort if one of the
parties is injured.20 For example, suppose I promise to provide

you a safety net for your work as a roofer, but the net I provide will
not hold when you fall into it. You do fall into it, it gives way, and
you are injured. Courts are likely to hold me liable in tort even
though I would not be responsible to provide a net unless I had
contracted to do so.21 A third area of overlap occurs when tort law
is invoked to protect contract rights. If I intentionally interfere
with your contract with another person so you cannot reap its
benefits, I may be liable to you in tort.22
Perhaps most importantly, much of tort law is shaped by the
expectations of the parties, even when those expectations are not
explicitly made part of any contract. Expectations in a relationship
have some consensual qualities, in that respect resembling a
contract. As the New Jersey Court said, when a person is in a
consensual relationship, courts judge the reasonableness of his
conduct by reference to his “consent and mutual understanding”
and by the “common expectations that serve to identify what
conduct is acceptable” among people in the relationship.23 When
the parties stand in some particular relationship, like that of
lawyer and client or bailor and bailee, or seller and buyer, courts
historically constructed the tort duties out of the parties’
expectations, or at least out of what the courts thought their
expectations were. Finally, tort duties may at times be limited by
the parties’ expectations, undertakings, or tacit agreements. So the
contract cousins, consent and expectation, play a very large role
indeed in shaping tort duties.
A more radical view is that the distinction between tort and
contract is entirely manipulative; courts might characterize a case
as a contract case when they wish to focus exclusively on the
promises of the parties and their enforceability but characterize a
case as a tort case when they wish to focus on or emphasize public
policy or rules imposed by courts that do not necessarily vindicate
the parties’ promises. In this view, the distinction between tort and
contract does not represent any underlying legal reality; it is
merely instead a distinction invoked to facilitate the court’s
analysis and conclusions.
A more moderate view is that in some cases, the distinctions
between tort and contract may be distinctions of degree rather
than kind, or they may reflect only factual setting or professional
habit. Further than that, contract cases always involve promises.
Tort cases often involve expectations of the parties, but only
occasionally do they involve explicit promises. Numerous tort cases
are characteristically disputes between strangers, that is, people
who have no special relationship marked by contract. Such cases
cannot be thought of as involving any contract law or any overlap
with the field of contracts.
But if the basic division between tort and contract continues to
dominate legal thinking and research, that fact should not obscure
the importance of contract, informal understandings, and even
relationships between the parties in determining duties under the
rules of tort law. When a contract is in the picture, tort law almost
always treats the contract as important and worth examining;
when purely economic interests are
involved, they often give the contract precedence, allowing the

agreement, rather than the rules of tort law, to control.24
Crime, Tort, Contract and Property designate the traditional
great fields of the common law. The preceding sections have
indicated that tort law has affinities with both the law of crimes
and the law of contracts. Tort law also has affinities with the law of
property.
Property law aims at defining rights of people with respect to
things rather than with respect to other people. The things at issue
in property law can be intangible as well as tangible; one can own a
patent or copyright as well as a farm called Blackacre. Property
law is fundamentally concerned with establishing ownership of
property, with the incidents of ownership, and with the means by
which ownership can be changed. The incidents of ownership may
include the right to physical integrity of property, the right to
exclusive possession of property, and the right to reasonable
enjoyment of property.
Because tort law is necessarily centered on conduct of persons,
or at least on the results of that conduct, it does not seem at first
glance to be concerned at all with static ownership. On this ground
it is clearly distinguishable from property law. In addition,
property law resembles contract law in that transfers or divisions
of ownership are largely a matter of consensual agreements and in
that lawyers engaged in property practice are likely to be drafters,
negotiators, planners, and facilitators rather than litigators.
Yet ownership of property underlies many torts, and some tort
actions are expressly brought for the purpose of establishing or
confirming rights in property, while others are brought to vindicate
or protect those rights. The ancient action of trespass was a tort
action brought to assess damages for invasion of the plaintiff’s real
property (and later for trespass to chattels as well). In this kind of
case, tort law can be viewed as a kind of helper or action arm for
property law.
In defining the tort of trespass, the courts necessarily define
something of the incidents of ownership of real property. If I enter
your land in good faith and in the reasonable belief that it is my
own, courts may nevertheless declare that I am a trespasser and
liable to you for damages. In so saying, courts in the tort suit
determine important incidents of your ownership. By this tort law
rule, courts are saying that you have rights to exclusive possession
even against a person who enters in good faith, not merely against
those who know the land is yours. In the same way, if courts hold
that my factory smoke is a nuisance that prevents your reasonable
use and enjoyment of land, they have not only defined the legal
limits of my conduct; they have also defined the incidents of your
land ownership.
So tort law blends with property law just as it does with
contract law. Sometimes the only viable issue in a tort case is truly
an issue of property rights. At other times the issue will emphasize
the defendant’s conduct and its possible wrongful character.
Differences must often be described in terms of emphasis or focus
rather than in terms of essentialities. As a practical matter,
however, when the issue is mainly about underlying property
rights rather than about the wrongfulness of the defendant’s
conduct, this book will leave the matter to the law of property.
10

Another way to help define the scope of tort law is to contrast it
with governmental regulation, which is not a field of law but a
different mechanism for enforcing rules. The reason for making the
contrast is that both institutions—tort law and regulation—can be
seen as means of imposing a degree of social control by preventing
injury or compensating it.
Government regulation (of dangerous activities, for example) is
always derived ultimately from legislation. A statute passed by
Congress or a state legislature might specifically forbid some
dangerous activities. Or it might set standards for safety and
create an administrative agency to enforce those standards. The
federal Occupational Safety and Health Act (“OSHA”) and state
analogs are examples. These statutes require employers to observe
certain levels of safety and empower an agency (a) to make
concrete standards by promulgating regulations, (b) to inspect, and
(c) to enforce the standards. The administrative agency might, for
example, prescribe the amount and design of bracing required to
protect workers in trenches from cave-ins.25
Regulatory systems govern many important activities in society;
they are not limited to regulating health and safety risks.
Extensive statutes and regulations govern the way in which
securities like stocks and bonds are sold and the kind of
information that must be provided to prospective buyers. This is
economic, not safety regulation. But like safety regulation, it
differs enormously from tort law, yet has its tort law counterparts.
What are the important differences between a tort law way and
the regulatory way of trying to control conduct and make
compensation? First, regulators look forward: regulation is always
formulated in advance. If four-by-four timbers must be used to
shore up a trench, the regulation will say so in advance. Tort cases
look backward: they decide that conduct that has already taken
place was wrongful.
In part this difference derives from another. Regulation is often
quite specific and detailed (about the size of the timbers, for
example). Tort law standards are usually broad and general until a
specific case is decided. Tort law standards are never likely to
provide for the use of four-by-four timbers. Instead, tort law
standards are likely to provide that the contractor constructing a
trench should exercise reasonable care; it is for a jury to decide
whether the contractor’s shoring-up methods were reasonable.
Once the tort case is decided, however, it has precedential effect,
and as precedent it looks forward in time just as regulation does.
Some jurists once thought that accumulated precedents would
eventually provide a kind of catalog of rules or answers, but tort
precedents do not work this way; each case is likely to be a little
different and rules made for one case may not be well adapted to
solution of a slightly different case.26
11
A signal difference between regulation and tort law is that

regulation does not ordinarily aim at compensation. The goal of
OSHA regulation on trenches, for example, is to prevent injury, not
to compensate an injured worker. If an employer violates an OSHA
regulation, the government might ultimately enforce a civil
penalty, but that penalty will not go to an injured person. This
demonstrates a close analogy between regulatory control and
criminal law. Tort law, in contrast, aims specifically at
compensating the victim of a wrong by awarding damages. Only
occasionally do courts apply tort law to prevent injury in advance
by issuing an injunction. However, tort law may reduce the
number of injuries in a general way because many people will act
with reasonable care to avoid paying the compensation that tort
law would require.27
Many lawyers distinguishing regulation from tort law would
perhaps think first of the procedural incidents of the two systems.
Tort law is court law. The victim of a wrong sues. The victim does
not rely on others to enforce rights. The suit is in a court (usually
nearby) that is open to all individuals. Most notably, the facts in
the suit are decided by a jury if either party requests it, not by a
judge or an administrator.
Probably no practicing lawyers would think that tort law and
regulatory law systems are alike. Yet for all their differences, they
are not located in impenetrable compartments. Courts in tort cases
may adopt administrative regulations as guidelines for tort law.
And courts as well as administrative agencies sometimes provide
rules in advance by issuing injunctions. Sometimes the injunction
will be just as specific and detailed as an administrative
regulation.
Many people think of personal injury cases when they think of
tort law. But tort law is more than injury law because it includes
rules for wrongs that cause economic and emotional injury even
when no physical harm of any kind has been done. Tort law is also
less than personal injury law. Other social institutions, in addition
to tort law, attempt to control and compensate personal injury.
Tort law is, in fact, only one of a number of ways in contemporary
American society aimed at creating incentives for safety or at
providing compensation for loss or both.
The alternative institutions are not even the institutions of the
common law, much less of tort law. Yet they account for most of the
compensation paid for injury. Tort law cannot be meaningfully
understood without understanding that such alternative systems
exist. Alternative non-tort systems include social security support
for totally disabled persons, medical benefits derived from social
security or otherwise, workers’ compensation benefits for those
injured on the job, no-fault automobile injury systems operating
under insurance plans, and others. In some cases dangerous
products are subjected to special taxes, which are then used as a
fund to pay for injuries those products cause. Mass torts claims, in
which hundreds of thousands of people are injured by a product
such as asbestos, begin with tort law but are so large and complex
that they have generated unique adaptive behaviors within the
law. Global settlements of these claims may prescribe more
definitions and rules than an administrative agency administering,
say, workers’ compensation.28
12
Alternative, non-tort systems seek to compensate for injury

even when injury is not caused by wrongdoing. In that sense they
are strict liability systems. So the element of fault that is so
prominent in most of tort law is almost wholly missing in the
alternative systems. Non-tort systems usually attempt to resolve
the injury-compensation question outside of court; although the
administrators may hold some court-like hearings, there will be no
jury. They also almost always reject or limit recovery for the
victim’s pain and suffering. These alternative systems often seem
more concerned with distributive rather than corrective justice, or
with public welfare rather than just deserts or deterrence of
wrongdoing. But for lawyers dealing with personal injury cases,
torts does not cover all of their work; they must also work with
alternative systems.29
The boundaries of tort law staked loosely in the preceding
sections may suggest that torts cannot be a coherent field. It is not
only large in itself, including all kinds of wrongs of which there are
many if not infinite varieties; it also has family ties to criminal,
contract, property, and regulatory law, not to mention alternative
compensation schemes. The size and diversity of tort law is
emphasized by the fact that lawyers do not specialize in tort law
but only in some patch of it. Probably no lawyer could be said to
“specialize” in a field so diverse that it includes medical
malpractice, products liability, interference with contract, libel,
privacy, sexual harassment, civil rights, malicious prosecution, and
other torts. If size and diversity of tort law threatens to render it
incoherent, so does the fact that tort law is always changing.
The unity in tort law, if there is any, does not lie in factual
similarities among the different torts. The common threads in tort
law may not be satisfying, especially to a beginning student of the
field, but they are real even if they sometimes break.
First, tort law attempts to recognize personal responsibility and
accountability for harms done to others. It does so primarily by
allocating some or all responsibility to those who are at fault. The
issue of fault thus dominates most of tort law. Although fault may
be defined quite differently according to the factual setting and
relationships of the parties, courts are deeply involved with
defining fault in a large proportion of all tort cases. The fact that
fault is not always properly defined, or is defined with policy
problems as well as with justice in mind, does not reflect a
rejection of the fault standard, only a difference of opinion about
how it should be applied. Where courts have deviated from the
fault principle, either in their formal rules or in their unconscious
applications of it, they have nevertheless struggled hard to
articulate a meaningful basis for legal responsibility that matches
in at least some degree the community’s sense of justice. Fault, or
some aspect of fault, often finds its way into the case by the back
door when it is denied entry at the front.
Second, tort litigation has developed and continues to develop a
cluster of analytical tools or ways of thinking that are special to
tort cases. They say that the defendant’s conduct must have in fact
caused the plaintiff’s harm, and more than that, the defendant’s
conduct must be a significant or proximate cause of the harm.
Those and other concepts used in analysis are not unique to tort
law, but they are uniquely important in tort law.
Third, the process of lawyering tort claims is, overall,
enormously different from the process of, say, contract drafting or
estate planning. Part of that difference lies in the
13
fact that tort law is litigation law. Tort litigation usually entails
a jury, so the members of the public are present to participate and
view the professional judges and lawyers at work. The public
presence transforms the private world of legal professionals and
affects the way they think of themselves and the proceedings, so
that the culture of decision-making in American tort law is indeed
quite special. The jury’s role has made judges and lawyers
especially sensitive in tort cases not only to procedures and
remedies, but also to the problems of proof and evidence. One of
the enduring concerns of the tort law process in the United States
is the role of the jury in relation to the role of the judge. Other
process differences are generated through a cluster of tort law
institutions, including the contingent percentage fee and the
prevalence of liability insurance as well as the special role of the
jury.
If tort law is a coherent field, its coherence is thus not derived
from the factual unity of the cases it determines, but from its focus
on wrongdoing, its increased emphasis on certain analytical tools,
and its virtually unique process of lawyering and deciding cases.
________________________________
1 See Vigil v. Franklin, 103 P.3d 322 (Colo. 2004); Buchanan v. Doe,
246 Va. 67, 431 S.E.2d 289 (1993).
2 Fandrey ex rel. Connell v. American Family Mut. Ins. Co., 272
Wis.2d 46, 680 N.W.2d 345 (2004).
3 E.g., Dorwart v. Caraway, 312 Mont. 1, 58 P.3d 128 (2002).
4 See Chapter 22.
5 See Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625 (1983) (reflecting
a constitutional tort claim pursued under a civil rights statute which in
turn was interpreted to permit recovery of punitive damages in light of
common law acceptance of such damages); Martinez v. California, 444 U.S.
277, 62 L.Ed.2d 481, 100 S.Ct. 553 (1980) (rejecting constitutional tort
claim on grounds of remoteness similar to common law proximate cause
principles).
6 See, e.g., § 19.1 (Warsaw and Montreal Conventions governing
international flights).
7 E.g., Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d
1165 (2006). Most “new” torts, however, are developed from the common
law fabric of general principles.
8 See Chapter 40.
9 See Dan B. Dobbs, The Law of Remedies § 4.1(1) (2d ed. 1993)
(noting that restitution in money may exceed the more common award of
“damages”).
10 See Id., § 2.1(2) (distinguishing and illustrating different types of
injunctions).
11 See Chapter 34.
12 Sometimes courts recognize a third category, placed between the
first two. A willful or wanton wrong is a species of negligence because the
wanton defendant does not intend an invasion of the plaintiff’s rights. At
the same time, it has some resemblance to an intentional wrong because
the defendant has an anti-social state of mind; he is conscious of creating a
high risk of harm. See § 4.5.
13 See Chapter 32.
14 See Chapter 33.
15 See Chapters 4 to 6.
16 See Chapter 37.
17 See Chapter 38.
18 See Chapter 41.
19 Thus courts emphasize that one “purpose of tort law is to make an
injured person whole,” see Teschendorf v. State Farm Ins. Companies, 293
Wis.2d 123, 717 N.W.2d 258, 273 (2006), by shifting the losses suffered to
the faulty person, see Hanks v. Powder Ridge Restaurant Corp., 276 Conn.
314, 885 A.2d 734, 742 (2005).
20 See Shadday v. Omni Hotels Management Corp., 477 F.3d 511,
512 (7th Cir. 2007).
21 See Chapters 25 (defendant’s undertaking as a basis for tort
liability) & 33 (products liability in tort and warranty).
22 See Chapter 42.
23 Crawn v. Campo, 136 N.J. 494, 507, 643 A.2d 600, 606 (1994).
24 See Chapter 41.
25 29 C.F.R. § 1926.652 prescribes details about slopes, soil types,
shoring systems, and shield systems. An appendix gives details on shoring
construction.
26 Holmes leaned toward the idea of collecting precedents for
everything, leaving little for the jury to decide. See Baltimore & O.R. Co. v.
Goodman, 275 U.S. 66, 48 S.Ct. 24 (1927) (holding that a jury could not
find that a man was reasonable in crossing railroad tracks without
visually assuring himself that no train was coming, by getting out of his
car and surveying the terrain if necessary; “when the standard is clear it
should be laid down once for all by the Courts”). Nevertheless, Holmes saw
the dangers of such an approach when it suited him to do so. Lorenzo v.
Wirth, 170 Mass. 596, 49 N.E. 1010 (1898) (“Too broadly generalized
conceptions are a constant source of fallacy.”).
27 See § 2.5.
28 See Peter H. Schuck, Mass Torts: an Institutional Evolutionist
Perspective, 80 Cornell L. Rev. 941 (1995).
29 See Chapter 36.
15
Chapter 2
AIMS, POLICIES, HISTORY AND

METHODS OF TORT LAW
Analysis
A. AIMS AND POLICIES OF TORT LAW
§ 2.1 Justice, Policy, and Process Aims in Summary
§ 2.2 Corrective Justice, Distributive Justice, and Policy
§ 2.3 Fault and Other Normative Bases for Liability
§ 2.5 Deterrence
B. HISTORY, METHODS AND PROCEDURES OF TORT LAW
§ 2.9 Common-Law Analysis and the Doctrine of Precedent
__________
A. AIMS AND POLICIES OF TORT LAW

§ 2.1 Justice, Policy, and Process Aims in
Summary
What policies and aims do judges consciously articulate when
they create, choose, or apply tort rules? Because judges are
humans and can fall prey to bias and cultural assumptions, their
decisions will no doubt often reflect social or personal attitudes,
attitudes that may hold rational persuasion at bay. The question
here, though, is not what judges do as fate- or culture-determined
creatures, but what judges do when they are at their best,
consciously acting and rationally explaining their decisions. Put
differently, what kinds of arguments of justice or policy, as distinct
from arguments of self-interest or bias, can lawyers make to judges
who are faced with a choice between conflicting tort rules or a
choice about how to apply a tort rule to a particular case?
In medieval England, the law of torts, like the law of crimes,
had modest aims, principally to discourage violence and revenge.
Today’s tort law has much grander aims. All of the aims are
laudable, but sometimes one of them will conflict with another. The
most commonly mentioned aims of tort law are (1) to compensate
injured persons and (2) to deter undesirable behavior. Both of these
aims, however, are subsumed in whole or part under even broader
goals.
Morality or corrective justice. Particular aims of tort law are
usually erected under one of two large systems of thought.1 The
first bases tort law on moral responsibility or
16
at least on some idea that the defendant has in some important

way wronged the plaintiff. It attempts to hold defendants liable for
harms they wrongfully caused and no others. Good social effects
may result when courts act to right the wrongs done by defendants,
but in this system of thought, that is not the point of imposing
liability. Liability is imposed instead when and only when it is
“right” to do so.2
Social utility or public policy. The second large system of
thought reverses the emphasis; it bases tort law on social policy or
a good-for-all-of-us view. Social policy may coincide with justice in
particular cases, but the dominant concern is not to achieve
individualized justice; it is to provide a system of rules that,
overall, works toward the good of society.
Process. One kind of utility or social policy is inward-looking.
Rules must be made with the legal process itself in mind. They
must be the kind of rules judges and juries can understand and
apply in a practical way, and they must not leave too much to the
judge’s or the jury’s discretion. These and a host of similar
considerations focus on the litigation process itself as a good to be
preserved rather than on the abstract ideal of justice or social
utility.
Potential conflicts. The first two ways of looking at tort law are
usually regarded as antithetical to each other.3 Although justice
and policy often point to the same result, they do not always do so,
and when they do not, one of these views must prevail or both must
be compromised. The legal process view might also conflict with
the aims of justice or those of policy.
Suppose a city, facing a raging and spreading fire, attempts to
create a firebreak by blowing up a row of houses. Because time is
critical, the city insists upon doing so before the plaintiff, who owns
one of the houses, can remove his furniture. When the whole thing
is over, the plaintiff claims damages from the city for the value of
the furniture he could have saved. The city has acted for the good
of its residents generally, but the plaintiff is the one who pays the
costs. If the city’s action is to be judged by a standard of social
policy, some jurists might say the city should not be liable. On the
other hand, if it is judged by corrective justice standards, the city
should pay for the damage it caused in blowing up the houses.
Otherwise, the city would get the advantage of its action (whatever
that advantage might be) but would pay none of the costs. There
are more subtle examples, but this one is enough to suggest the
potential conflict between a decision based upon (supposed) social
policy and one based upon justice to the individual.
Some of the goals summarized in this section are discussed in
many, many tort cases. These goals influence results and they also
stand as measures for evaluating cases and making arguments.
They are central in the practice as well as the theory of tort law.
17
They also play a large part in evaluating subsidiary aims such

as compensation and deterrence discussed in the sections that
follow.
§ 2.2 Corrective Justice, Distributive Justice,
and Policy
Corrective Justice
Tort law is at least partly rights-based. That is, it is at least
partly based on ideals of corrective justice, ideals of righting
wrongs, or (somewhat relatedly) ideals about accountability or
personal responsibility for harm-causing conduct. Every claim is
unique because it is about individual human beings, or at least
individual corporations acting in particular circumstances.4 This
means that from a corrective justice perspective, claims are not
about advancing socially desirable programs but about doing
justice in particular cases.
To right wrongs sounds uncontroversial, but the idea is
significant for the very reason that courts sometimes reject it, as
they do on occasion when they deny recovery to a victim because
they believe that justice to the victim would entail high social
costs.
Philosophers and political scientists have found a great deal to
be said as they have developed detailed disputations about righting
wrongs and they have offered differing versions of the whole idea,
often in an effort to describe tort law at a high level of abstraction.5
However, an aim to right wrongs or to administer corrective justice
ideals does not by itself directly decide cases. Instead, that aim
asks the question, did the defendant wrong the plaintiff? This is
not necessarily a detailed set of normative rules that will generate
a resulting judgment. Courts usually determine that question by
asking whether the defendant was at fault in a way that caused
the plaintiff’s harm. So the focus in the cases is not about
definitions of wrongs, but about some aspect of the more immediate
question of fault and causation of harm.6
Judges and practicing lawyers use the terminology of corrective
justice only occasionally. When they do, it is often only to associate
corrective justice with fairness or accountability for fault7 or to
contrast decisions made on grounds of practicality or policy rather
than principle or justice.8 Judges have also used corrective justice
to describe basic principles of justice, such as the principle that
justice cannot depend upon a person’s status, but must depend
upon the wrong he has committed.9 Judges in tort cases usually
decide tort cases with a very general view to doing justice by
righting wrongs, not, say, by redistributing goods or by protecting
businesses from high insurance costs. But, as indicated below,
sometimes they are concerned with protecting businesses from
what the judges perceive to be high insurance or other costs.
18
Distributive Justice
Distributive justice distinguished. The idea that courts should
right wrongs done by one party to the other disclaims any intent to
effect distributive justice.10 Distributive justice ideals consider the
question, “How should goods in society be distributed among
people?” If you worry that some people do not have enough to eat
and think that children should not starve even if their parents do
not work, then you might think the basic goods of life are not justly
distributed. The most traditional elements of tort law do not in fact
aim at a redistribution of goods but are instead concerned with
corrective justice or some other form of righting wrongs.11
Policy and Utility
As already indicated, corrective justice ideals or standards are
also distinguished from ideals or standards based on policy or
utility. Tort law often takes policy and utility into account as well
as rights or fairness or corrective justice. Policy and utility
questions ask what is good for society as a whole. Those questions
definitely do not address issues of right and wrong in individual
cases. For instance, defendants sometimes argue that they should
not be required to pay full damages for harms they cause, because
that would drive up the costs of insurance and might even cause
some defendants to go out of business. The public in general, they
say, would be the loser. This kind of argument is based on policy or
utility, one that attempts to establish ideals of public good, not
ideals of justice between two individuals. A justice approach in
contrast asks whether the defendant wronged the plaintiff and how
to right that wrong, even if righting the wrong turns out to cost
more than the plaintiff lost.
Both plaintiffs and defendants present policy arguments.
Plaintiffs often argue that the defendant as a business enterprise
can better “distribute the risk” or “distribute the loss” that results
from accidental injury. Even if the defendant is not at fault, they
argue, the defendant can better absorb the costs of injuries
associated with its enterprise, or even pass those losses on to
others, by raising its prices. In certain areas, this kind of
argument, associated with the phrase “enterprise liability” or
“collective liability,”12 has sometimes, but not always, been
effective. Arguments for liabilities divorced from rights might also
have a special place in mass tort litigation where hundreds of
thousands of people have been injured by products like asbestos or
the Dalkon Shield.13 Such arguments, however, are not about
justice—righting wrongs—but rather about finding effective ways
of dealing with injury.
Policy judgments may be very broad or very narrow. Judges
seldom have data necessary for broad-based policy judgments, say,
judgments about the long term social effects of imposing liability
for wrongs. Judges who predict that if wrongs are righted an entire
pharmaceutical industry might be destroyed are making broad
policy judgments that may be hard to justify in the absence of
data.14 Broad policy judgments may risk
19
compromising the judicial process by injecting the judges’

ideological views or susceptibility to political propaganda. All cases
risk that, but large, undefined policy questions run greater risks to
the judicial system than other kinds of judgment.
Narrow policy questions may differ not only in degree but in
kind. Narrow policies are focused on the facts of the particular case
and not on a social agenda or ideology. Narrow policy questions at
times deal with cases in which fairness to all is simply impossible.
For instance, if you buy a watch that turns out to have been stolen
from the plaintiff, the plaintiff can claim that justice requires that
you return it. You, on the other hand, can claim that after all you
paid for it in good faith and that it is unjust to force the loss on you
when it is not your fault. There may be several ways to resolve this
conflict, but one of two innocent people must take a loss and in that
situation a narrow policy judgment may be justified when broad
policy judgments without data are not. Such a policy judgment
might be “property rights are more important in this situation than
unfettered exchange of goods” or vice versa.15 Such policy
judgments may be unavoidable and in any event are manageable.
Judges’ Choices
Although torts traditionally may emphasize justice or fairness
far more than policy or utility,16 the two goals are in harmony in
many cases. It is just that the wrongdoer must pay compensation
for his wrong, and it is also good policy to deter wrongdoing. When
policy goals are at odds with justice to individuals, different views
have been advanced,17 and courts have sometimes emphasized
justice, sometimes policy. For lawyers arguing cases, the question
is not likely to be whether judges must wholly exclude policy or
wholly exclude justice. Instead, advocacy requires lawyers to show
judges why one approach or the other is most appropriate for the
particular case. In that respect, at least, the particular individuals
before the court with their particular complaints and defenses can
be heard.
§ 2.3 Fault and Other Normative Bases for
Liability
Fault and justice. Tort law imposes liability upon defendants for
conduct the law treats as wrong. In most instances, the conduct
adjudged as wrong can be viewed as morally faulty conduct: it is
intentional misconduct or at least unreasonably risky conduct
likely to cause harm to others. In these cases, tort law seems to be
commensurate in a general way with corrective justice ideals. The
defendant’s fault is a wrong that has harmed the plaintiff in some
legally cognizable way; tort law, by subjecting the wrongdoer to a
judgment that can be enforced against his assets,18 can put right
the accounts between the parties.
20
Conversely, it can be argued that in a corrective justice scheme,

it would be wrong to impose liability upon a defendant who is not
at fault in causing the plaintiff’s harm. Society may wish to
compensate injured people by the use of public funds, but it cannot
justly force one innocent individual to compensate another.
These views emphasize individual accountability for fault,
accompanied by individual freedom to act without fault. They are
consistent with an ideal of social responsibility for victims. They do
not, however, speak against government compensation for victims
when the defendant is not at fault, only against compensation by
the faultless defendant.
Strict liability and corrective justice. When tort law imposes
liability without fault, does it go beyond the principle of justice? At
least some strict liability seems commensurate with justice. For
example, suppose that an established custom in the neighborhood
permits any neighbor to borrow garden equipment from any other
neighbor, but requires the borrower to pay for any damage done
while the equipment is in the borrower’s possession. Suppose that
Smith borrows Brown’s lawnmower, which is damaged when a
truck backs over it in Smith’s driveway, without any fault on
Smith’s part. A rule that imposes liability upon Smith would be a
strict liability rule because Smith was not at fault, but would seem
to accord with justice so long as Smith and Brown both know of the
custom.
Uniting the potential for gains and losses. Some thinkers have
advocated a general regime of strict liability on the ground that
strict liability is a morally based system and is therefore within
principles of justice. One idea behind this view is that when a
person makes choices about conduct, he is entitled to the gains that
may result from that conduct (including personal pleasure), and
should also take responsibility for losses caused by that conduct.19
If a person chooses to hang-glide off a mountainside, either for
personal pleasure or as part of a demonstration that brings him
profit, then he should pay any for any damages caused when he
cannot control the glider and lands on another person’s vegetable
garden.20 This line of thought works best when an active person
causes harm to a person or thing at rest. When two hang-gliders
(or car drivers) crash into each other without fault, it is much
harder to work out a system of strict liability that is also based on
corrective justice, and in fact strict liability is not imposed upon car
drivers who crash into one another.21
Nonreciprocal risks. A different view about the justice basis for
strict liability is that strict liability can justly be imposed when the
defendant imposes nonreciprocal risks on the plaintiff. For
example, an airplane pilot imposes only small and quite reasonable
risks to people on the ground, since crashes are extremely rare.
Nevertheless, the pilot imposes some risks to people below while
they impose no similar risks upon him. If
21
reciprocity is a moral test of liability, then strict liability should

be imposed upon the pilot, and such liability would be
commensurate with justice reasoning.22
Community standards. A third view might emphasize
community standards as the basis for corrective justice liability.
Community standards might be embodied in an explicit custom,
like the neighborhood custom in the lawnmower example above. Or
they might be embodied only in the views of the jury that decides
the case. If the jury is representative of the community as a whole,
its verdict is likely to reflect the implicit standards of fault and
liability that already exist at that time and that place. This, too, is
a view of corrective justice.23 Presumably it would permit strict
liability where the community standard called for it, perhaps in
cases like that of the borrowed lawnmower.
Fault again. Although innovative thinkers have sought to
justify strict liability within a corrective justice framework, many
of the cases considered seem to be cases of special kinds of fault, for
example, fault as judged by the fairness of imposing non-reciprocal
risks or as judged by deviations from community-accepted norms.
Whatever is to be said of strict liability theories of justice, the great
majority of tort cases turn on some kind of perception that the
defendant is at fault in a significant way. At least for those cases,
tort law begins with ideals of justice, even if those ideals may be
modified by considerations of process, pragmatism or policy in
particular cases.
Compensation of persons injured by wrongdoing is one of the
generally accepted aims of tort law. If a person has been wronged
by a defendant, it is good and just that the defendant make
compensation.24 Compensation is also socially desirable, for
otherwise the uncompensated injured persons will trigger further
costs and problems for society. A tort system based solely on social
policy might conceivably seek to exact compensation from
defendants who have caused harms by accident but not by
wrongdoing. Alternatively, such a system might provide a social
system of insurance for everyone. However, a system of tort law
based on justice will ordinarily compensate only those who are
injured by some conduct that can be called a wrong.
Injury costs are socially as well as individually significant; the
annual cost of unintended injuries, including medical costs and
wage losses, exceeds half a trillion dollars.25 Compensation for
injury may actually help reduce personal injury costs. Appropriate
medical attention, for example, may allow an injured person to
return to work sooner. Injury also has ripple effects, especially
when it promotes economic hardship. Children and others within a
family stressed by serious injury and consequent economic
difficulty may reflect that stress by inflicting still further economic
costs upon society, for example, by abusing alcohol or drugs.
22
Based on these and other considerations, some commentators

have argued that tort liability should be strict (or more expansive)
in order to secure compensation for more injured persons. Some
defendants (if not all) may be seen as good “risk distributors” who
should be liable for any harms they cause regardless of fault
because they can “distribute” the costs of paying compensation; for
example, manufacturers could pay compensation for injuries they
cause and then recoup some or all of those costs by raising the
price of their products. In this view, each individual purchaser of
these products will pay a tiny fraction of the costs of injuries
inflicted by those products, and the injured person will not be
compelled to bear the entire cost alone.26 Loss would thus cause
less social dislocation. At the same time, an enterprise would be
forced to internalize losses typically caused by the business itself.
However, judges have not generally adopted the view that
compensation is more important than justice or that tort liability
should be strict. Distribution arguments and strict liability have
gone hand in hand, but only in certain kinds of cases.27 They have
not supplanted fault as the most common basis for tort liability.
Since compensation is indeed important and one of the goals of
tort law, why is it that courts do not adopt strict liability across the
board and order compensation in every case in which the defendant
causes harm? The most obvious possibility is that judges feel
heavily committed to a system of justice; they turn to social policy
mainly when they feel social policy and corrective justice coincide
at least in part. It is also quite possible that even though
compensation is a significant and important policy, other social
policies counsel only limited compensation through the tort system.
It may also be true that risk-distribution arguments are best
addressed to legislators rather than to judges; in fact, some
legislation (such as workers’ compensation statutes) in effect
adopts such arguments.
A second reason is that an invariable award of compensation
that must be paid by a defendant may eliminate any deterrent
effect that the award would have if it were confined to cases of
fault. A third reason is that the tort system is an extremely
expensive system to operate. If compensation is the most important
goal, the tort system is a poor way to accomplish it because other
means are cheaper. For instance, workers’ compensation insurance
is usually more efficient than liability insurance used to pay tort
judgments. Relatedly, the tort system is not in fact the source of
most compensation for injury. Private insurance, such as the
injured person’s medical insurance, and public assistance programs
provide most of the compensation that goes for injury.28 Fourth,
the injured person often bears some of the responsibility for her
own injury, and in addition the parties may be equally good at
“distributing” the risk by purchasing their own insurance. Still
another consideration is that if defendants must pay compensation
even
23
when they are not at fault, many such defendants might soon be
bankrupted—ultimately defeating compensation for other injured
persons.29
§ 2.5 Deterrence
Courts and writers almost always recognize that another aim of
tort law is to deter certain kinds of conduct by imposing liability
when that conduct causes harm. The idea of deterrence is not so
much that an individual, having been held liable for a tort, would
thereafter conduct himself better. It is rather the idea that all
persons, recognizing potential tort liability, would tend to avoid
conduct that could lead to tort liability. They might sometimes
engage in the conduct in question, but only if they would get more
out of it than the tort liability would cost. Some critics believe that
tort law fails to provide systematic deterrence.30 Even if the failure
is not pervasive, it is certainly true that tort law fails to provide
appropriate deterrence at least on occasion.31
Both systems of thought that emphasize justice and those that
emphasize social policy goals can agree that deterrence is
acceptable, but the two approaches might call for deterring quite
different conduct. If you focus on conduct that is wrongful in the
sense of being unjust to an individual, you might regard any given
act as wrongful even though it is economically useful in society. If
you focus on social policy, you might want to forgive defendants
who cause harms by their socially useful activities.
Suppose for example that there are two methods of constructing
a building the defendant intends to build. One is quick, easy, and
cheap. The other is slow and expensive. The trouble is that the
quick, easy, cheap building is also a little more dangerous to build,
so that, overall, more injuries occur in construction of the cheaper
buildings than in construction of the more expensive ones that are
slower to build. Not surprisingly, the defendant chooses to build
the cheaper, quicker version. Suppose he builds it with care, but,
as will inevitably happen sooner or later, someone is injured in a
construction accident. Should the injured person have a claim
against the builder?
As the example suggests, one particular kind of social policy
consideration is economic. If economics is defined broadly enough
to include a consideration of all human wants and desires, then
perhaps all social policies are in a sense economic.
Economic analysis of the personal injury part of tort law may
suggest that deterrence is undesirable in some injury cases. One
line of economic thought is that courts should respect the
defendant’s freedom to act, at least in some cases, more than they
respect the plaintiff’s physical security. Under this view, people in
general ought to be free to build buildings, including cheaper ones,
if they do so carefully; the law wants to protect their freedom and
indeed encourage the enterprise because economically sound
decisions are good for the community as a whole. This line of
thought suggests that in deciding the builder’s tort liability, the
costs of injury should be weighed, but so should the social
(economic) utility of the cheaper building.32 Depending on how
much
24
the builder saved and how high the injury costs were, a court
might thus deny any recovery against the builder. In the actual
cases, this line of economic thought is illustrated and supported by
the outcomes, but the judges do not so often explicate these results
in economic terms.
A different line of economic/public policy thinking might assert
that if it is statistically likely that more injuries occur when the
cheaper building is constructed, then the costs of those injuries
should be regarded as a part of the builder’s costs of doing
business. Even if he is not regarded as being at fault, nevertheless,
he chose the riskier method and got its benefits (less investment in
the building), so should take the disadvantages as well. In
economic terms, he should not be permitted to externalize his
costs. This line of reasoning might lead to the conclusion that the
builder should be held liable for the injuries caused.33
Tort law has tended to resolve many disputes in a way
consistent with the first line of economic analysis. This means that
in determining whether the defendant may be at fault, courts often
take into account the benefits and costs of a particular activity. If
the benefits are high and the injuries are small or rare, courts will
often say that the defendant is not at fault and that he has
committed no tort.34 The second line of economic thought can be
seen in some instances, however. Workers’ compensation and some
other alternatives to tort law, or example, hold the defendant liable
even without fault.35 It may also be seen in the rule that employers
who are not personally at fault are generally liable for the torts of
their employees who are acting within the scope of their
employment.36
Some of the large differences in approach sketched in the
preceding sections can be understood in terms of the constant
tension in our society between individual accountability and social
responsibility. We are all individuals and we are all members of
society. That duality shapes our dilemma with many issues beyond
tort law.
Part of the tension between personal accountability and social
responsibility is minimized or resolved when an individual injured
by an innocent defendant can seek compensation from public
sources rather than from the defendant. Such an approach treats
innocently caused injury as a social responsibility rather than a
matter of the defendant’s personal accountability. The argument is
that when both the plaintiff and defendant are innocent, there is
no justice in shifting the plaintiff’s suffering to the equally innocent
defendant, but there might be a point in alleviating the plaintiff’s
suffering through some kind of insurance or public benefit system.
Plans like workers’ compensation, which requires employers to
pay compensation for workers’ injuries even when employers are
not at fault, may be rationalized on the ground that injury is a
regular cost of business to be borne by the business itself. If injury
is seen to be as much a part of the worker’s life as a part of the
business, however, that explanation becomes less convincing. A
different explanation for workers’ compensation
25
plans is that the employer is held liable without fault because

he can pass on the costs of employee injury to the public who buys
his product or services. In this view, the employer is not himself
ultimately responsible for worker injuries; rather he is a conduit
for a semi-public liability.
Although alternative compensation systems help fulfill a sense
of social responsibility or help solve a social problem, they may
raise doubts about whether they give enough weight to individual
accountability for wrongs, with the possibility of deterrence and
justice that such accountability implies. The workers’
compensation system, for example, substitutes limited
compensation obligations for tort liability, so that the negligent
employer escapes any obligation to make full tort payment to a
wronged individual. From the employer’s point of view, this
reduction in tort liability may be balanced by the employer’s
obligation to pay other workers even when the employer is not at
fault, but even so, the employer’s incentive for safety is reduced.
Justice and accountability go hand in hand with the
individualization that has been characteristic of the traditional
legal system. The plaintiff in a tort case tells her own story, the
individual facts of injury and grievance. The plaintiff speaks for
herself, not as a representative of asbestos victims, or workers, or
some other class. The defendant’s story is also his own. Traditional
tort law is not about workers against employers or about claimants
who demand a supportive share of a state’s treasury, but rather
about Mary Smith’s particular grievance against John Jones.37 The
advent of mass tort litigation, and bureaucratic systems of
compensation such as those found in social security disability
cases, however, has put the individual claimant far from the center
of the torts universe.
Judges of course wish to formulate and apply rules to obtain
both justice and public policy goals. They also rightly wish to
promote and protect process values. Process values are values we
attach to the legal process itself, in particular, the process of
deciding disputes and formulating legal rules. Jury trial rights are
one part of the dispute resolution process, but there are others.
Many process values are represented in procedural codes and in
constitutional prescriptions. Due process is a prized right, even if it
is not precisely formulated: we should hold the trial before the
verdict; each party should be entitled to know what the other
claims; disputing parties must be able to present their side of the
dispute.
Procedural specifications do not cover all considerations of
process. Judges consider process values in choosing, formulating,
and applying rules of tort law. A judge might justly award damages
to an injured plaintiff even if there were no rules at all, but the
process of adjudication would then itself be suspect and in a sense
unjust. So rules adopted must be rules that can be seen,
understood, and applied, at least by the professionals involved in
litigation. Judges striving to formulate or apply tort rules attempt
to meet this modest concern for the litigation process itself, which
sometimes may trump considerations of both justice and other
social policies.
Process goals. No authoritative list of process values guides
judges, so lawyers can argue that any given rule is undesirable
because it does not appropriately respect process
26
concerns. Broadly phrased, the legal process should be designed

not only to get good results in accord with justice, policy and the
relevant facts, but also to leave participants with a sense of
humane participation in the process.38 That might include the felt
need to tell one’s side of the story and relate a sense of injustice. It
might also include a sense that justice is not only done but seen to
be done. There is also a practical side to process. Rules should be
structured to permit efficient decision making—no litigant should
be compelled to spend weeks getting a decision that could have
been made just as well in a day. Many specific process goals are
ordinarily taken for granted. Some system must be in place for
gathering facts and insuring that all relevant points of view are
heard. To insure even-handedness, a measure of respect must be
accorded to precedent in closely similar cases. And to insure that
the rule of law prevails instead of pure bias, rules themselves must
be reasonably clear, even though they cannot provide perfect
certainty.
Loose rule formulation that diminishes judicial accountability.
These broadly phrased ideas suggest many more specific concerns.
If rules are too abstract, they may fail to constrain the judge or the
jury, effectively permitting the decision makers to do as they like.
Rules like this can undermine the process of justice because
lawyers and other observers cannot confidently say whether the
judge or jury applied the law or not. A rule that merely told people
“be good” has at least two process defects. First, it fails to point to
evidence a lawyer could adduce or arguments that could be made.
Second, the rule is so undefined that it fails to constrain the judge
in appropriate ways. If their decisions are not subject to
professional scrutiny because the rules are so uncertain that
anything goes, judges are likely to become, in time, more arbitrary
and ultimately less just.39
Tight rule formulation that eliminates needed flexibility.
Conversely, however, precise rules may overly constrain the
decision makers, leaving no room for justly deciding the
individual’s case which is at the heart of our concept of justice. A
rule that says “be good” violates the process interest in having
understandable, reasonably precise rules. At the other extreme, a
rule that says “never, ever, drive more than 40 miles per hour in
this zone” may leave too little flexibility for the case of the driver
rushing his child to the emergency room. Evaluating process
arguments thus requires both judgment and balance.
Rules guiding lawyers’ investigation and arguments. Although
some rules are actually read and understood by the people whose
conduct they regulate, many tort rules are not. Rules often attempt
to reflect the way people should behave even if they have not read
the statutes and the cases. Thus, many tort rules are mainly read
and understood by lawyers. Judges formulating tort rules must
have in mind that lawyers use rules in very practical ways, to
know what arguments and what facts are relevant so that
investigation can proceed accordingly. Rules devalue the process
when they fail to point to arguments and facts that are relevant to
the litigation. That was one of the objections to a rule that simply
commanded people to be good. The rule gives no hint as to what
facts might impress the judge on the goodness scale or what
arguments might be structured in favor of one side or the other.
27
Rules failing to specify provable facts. Rules also detract from

good process when they call for facts that cannot be proved with
reasonable confidence or proved within a reasonable length of time.
Suppose that it is normally a tort to touch someone who has not
consented to being touched, but that it is not a tort to touch
someone who has consented. If the plaintiff plays in a game of tag
or football, consent seems apparent even if it is not expressed. If
judges were to say that anyone touching the plaintiff is liable
unless the plaintiff actually, subjectively consents to the touching,
the rule would not point to evidence that can be reached by the
defendant’s lawyer, since no one can produce evidence about the
plaintiff’s state of mind except so far as it is outwardly or
objectively expressed. That may or may not lead to unjust results,
but it leads to process concerns because we cannot be very sure of
our basis for judging the question of subjective consent if we are
not permitted to consider the outward signs.
Deciding by avoiding decision. In some situations, judges
believe that their basis for judging is too limited to permit them to
act at all. Sometimes this feeling leads to rules that reject tort law
solutions altogether. For example, no judge wishes to condone
parental abuse of children, but few judges want to tell parents that
they cannot punish their children in ways accepted in the
community. So if a child were to sue her parent, claiming that
punishment was unjust or harmful, some judges might fear their
ability to discriminate between abuse and punishment. They might
refuse to entertain the case altogether, or if they entertained it,
they might demand especially clear proof from the child. Judges
might have other reasons besides those related to the legal process
for reaching such a decision. Official interference with family life is
a troubling and dangerous matter. Nevertheless, inability to decide
in a way that can be rationally understood by citizens and lawyers
is one of the reasons why judges may refuse to recognize a tort or,
if they recognize it, to apply the rules with great caution.
On the other hand, resolution of human disputes cannot await
the certainty of a long-term scientific study. Judges must be (and
are) prepared to tolerate a degree of uncertainty in many claims.
The amount of acceptable uncertainty in proof depends a lot on the
judge’s assessment of the net cost of error.
Process value arguments as judgment, not logic. Process value
arguments probably should be taken as important factors in
deciding what rules to formulate and how to apply them, but they
probably should not be taken as sovereign commands. They appeal
to judgment, not to a sense of inexorable logic. They should be
evaluated, too, with the possibility in mind that they tend to favor
defendants, for example, by demanding clarity in rules that cannot
always be supplied, or by insisting upon certainty of evidence or
logic that is seldom available.
B. HISTORY, METHODS AND PROCEDURES OF
TORT LAW
Tort law’s traits can often be understood through its history.
This section reflects only a small part of that history that bears on
some specific tools of thought that sometimes still affect our
resolution of cases.
Common Law Writs of Trespass and Case
The early common law was based upon decisions by judges
developed gradually in England after the Norman Conquest. Local
lords or the courts they controlled decided some cases, but the
medieval English King as the chief feudal lord claimed the right to
28
decide cases involving property rights and the “King’s peace.”

Gradually a procedure developed under which the King, through
his Chancellor, would issue a “writ” which had the effect of
conferring jurisdiction on the King’s courts to hear a particular
dispute.
The writ of trespass. The writs were stylized documents or
forms containing certain words that remained more or less the
same from case to case. Lawyers and judges naturally called these
writs by a short name based on that commonly used language.
Certain early writs, all in Latin, asserted a claim that the
defendant had “transgressed” by force and violence. An English
word for transgress was trespass, so these writs were called writs
of trespass. The trespass writ developed several sub-forms. For
instance, one version asserted that the defendant acted vi et armis,
that is, by use of force. Another asserted that the defendant “broke
the close,” that is, invaded land and disrupted the plaintiff’s
rightful possession of it.
The characteristic instance for which an aggrieved person might
obtain the writ of trespass was one in which the defendant applied
direct force to the plaintiff’s interests: he rode onto the plaintiff’s
land or he struck the plaintiff with a stick. The trespass action was
not so much about land as about direct physical force. You could
have trespass to persons, chattels, or land.40
The writ of trespass on the case. Over time, the king’s agents
began to issue new writs, covering instances in which the force
applied by the defendant was not direct. The defendant throws a
log which strikes the plaintiff. A claim on those facts calls for the
writ of trespass. The defendant throws a log in the plaintiff’s path
and he trips over it after it has come to rest. A claim on those facts
does not justify the use of the writ of trespass.41 Nevertheless, the
claim might appeal to one’s sense of justice and in the late 14th
century the Chancellor began to issue writs to cover such indirect
injuries.42 The new kind of writ was called trespass on the case. As
this writ became common, legal professionals began to refer to the
new writ simply as case and the plaintiff was said to bring an
action on the case.
Strict liability under the writ of trespass. The writ of trespass
was based on direct force, which sounds like intentional
wrongdoing. However, if we understand the obscure history of this
action, intentional wrongdoing was not a required part of the
trespass claim. If the defendant threw a log that hit the plaintiff,
the defendant was liable even if he had never intended to strike
the plaintiff. So, at least according to the dominant view, trespass
was initially a kind of strict liability tort.43 Perhaps this was so
because trespassory torts were likely in earlier culture to promote
revenge and blood feuds, and
29
because, from very early times, the law sought to substitute

payment for the continuing violence that would erupt without it.44
Recovery without harm under the writ of trespass. In addition, if
trespass were the appropriate writ, the plaintiff could recover
without proving any actual pecuniary loss. For example, if the
defendant directly entered upon the plaintiff’s land without a
justification, he would be liable for at least nominal damages, even
if no harm was done. In the case of more violent torts this rule may
also demonstrate the connection between trespass as a tort and
trespass as a criminal or quasi-criminal action. As a kind of
deterrent, the action inflicted a cost upon the defendant even if the
plaintiff suffered no loss.
Fault under the writ of case. The writ of case, on the other hand,
was associated with fault such as intent or negligence on the part
of the defendant. If the plaintiff tripped over the log the defendant
had left on the path, the defendant would not be liable unless he
was guilty of wrongful intent or negligence.
Damages under the writ of case. Furthermore, where case was
the appropriate writ, the plaintiff could not recover unless he
proved, in addition to fault, some legally recognizable harm such as
physical injury or pecuniary loss. If the defendant negligently cut a
tree so that it would narrowly miss striking the plaintiff as it fell,
the plaintiff would have no claim for this fault unless he could
show harm to himself. This rule is still the ordinary rule today: a
negligence action lies only if the plaintiff has suffered in a way the
courts will recognize as legal harm.
Coming to America
The Spanish conquerors of Mexico and settlers in what is now
the American West left a legacy of the civil or code-oriented law.
The French version of civil law likewise came to those areas settled
by the French. The English colonists in the East brought with
them common law assumptions. But colonial institutions did not
quite match those of England. No chancellor was there to issue
writs even if Americans assumed that the writs matched some
more or less immutable form of thinking about law.
The strict liability elements of the trespass writ were eroded in
the 19th century. In the United States, the year 1850 brought a
leading decision of the Massachusetts Court in Brown v. Kendall.45
A man striking at fighting dogs with a stick raised the stick over
his shoulder and in so doing unintentionally struck the plaintiff.
The case fit the model of the trespass writ because the injury was
both direct and forcible, so strict liability might have been imposed
under the older rules. But the court rejected that approach and
substituted a fault standard instead.
From that time on, courts tended to assume that some kind of
fault—negligence or intentional wrong—was required to establish
tort liability in most cases. Yet the appeal of strict liability for
special cases remained, and courts began to find new occasions to
impose liability without fault. Brown v. Kendall made fault the
dominant approach to resolution of tort disputes, but it also opened
up the courts to new kinds of strict liability, not based on the writs
or forms of action at all, but on some sense of justice or policy.
30
Brown v. Kendall signaled the acceptance of new kinds of

reasoning in tort cases, a reasoning that left the formal writs
behind.
§ 2.9 Common-Law Analysis and the Doctrine of
Precedent
Roman legal principles were stated in the form of a code. Many
countries today initially state tort law as general principles
arranged in a code of laws. These are the civil law countries,
including Mexico, the countries of western Europe, Japan and
others. Common law countries—those which, like Canada and the
United States, took their early legal thought from England—did
not begin with a set of principles but began by deciding cases.
Gradually, decisions in individual cases came to be seen as
operating on certain principles or rules, which were then taken as
the basis for future decisions on similar facts. American tort law,
though now often supplemented by statutory law, initially
developed from common law decisions and those decisions still
constitute the main source to which judges turn for guidance in
deciding new cases.
In spite of the preeminent importance of case decision in the
common law of torts, many statutes affect tort law today. Statutes
may indirectly affect tort law by setting some standard that courts
adopt; they may directly affect tort law by creating some claim or
defense that would not otherwise be recognized or enforced by the
judges. Even ordinances or administrative rules may have some
effect in the tort process. Since about 1960, the United States
Constitution, too, has been instrumental in creating tort rights by
way of a federal statute recognizing civil rights torts. So statutory
instruments today are part of tort law. Statutes in the United
States, however, often differ from codes in that they do not attempt
to provide a complete and coherent set of rules or principles.
Instead, they prescribe very particular rules for particular
situations.
When statutes do not wholly govern a tort claim, how do
appellate judges go about deciding a case? Besides considering the
particular facts of the case, judges today are likely to consider logic,
public policy, and justice. Most of these considerations will be
expressed in terms of rules, principles or policies derived from
earlier case decisions. Under the doctrine of precedent, judges are
“bound” to follow the rules previously adopted by the same court or
a higher court in the same judicial system.
In the United States, the court of one state is not ordinarily
required to consider the precedents of another state court. Indeed,
precedents of federal courts can be ignored by state courts unless
the issue before the state court is an issue of federal law. However,
different courts in the United States are staffed with judges who
received similar legal training and who know at least a little about
the common law background of the cases they decide. So quite
frequently the courts of one state will consider decisions of another
state to be persuasive. By the same token, if the state has no
precedent on point, its courts will frequently look to general
principles of common law or to the opinions of commentators or
respected professional groups like the American Law Institute.
In the United States today, precedents are usually regarded as
important guides, to be taken seriously but not necessarily
slavishly followed. If the precedent was decided in a feudal society,
it may not be apt to govern disputes in a highly mechanized
society. Perhaps just as important, social values change over time.
A precedent that is now perceived as unfairly discriminatory is
likely to be overruled. Precedents may also be modified because,
with time and experience, judges come to perceive that the
precedent was stated too broadly or too narrowly, or that when the
precedential case was decided, its logical or social implications
were not fully grasped.
31
Application of precedent to new cases is sometimes rather

mechanical, but mostly it is not. Lawyers do not litigate clear
cases. Unless the lawyers are very bad or the parties very angry,
clear cases are settled because lawyers can determine from
precedent what the result will be. Sometimes the law is the
clearest thing in the case; it is the facts or the inferences to be
drawn from the facts that are disputed. Facts are usually resolved
by the time the case reaches an appellate court. If a case is on
appeal, there is usually a dispute about legal rules. Does a certain
rule exist at all, and if so, should it be overruled? If it does exist,
should it be applied to the facts of the particular case? How,
exactly, should the rule be worded?
Uncertainty. Many beginning students are surprised to learn
that after hundreds of years of common law development, so much
remains that can be disputed. Part of that surprise is due to some
distortion in the picture. Cases reaching the appellate courts are
not necessarily representative of the many thousands of other
cases that are readily resolved by settlement because the law is
clear. But part of the surprise is accurately grounded. Tort law is
very much litigation law; it is often somewhat indeterminate or
uncertain until the particular case is actually decided. In one way
that is unfortunate. In another, it is not. A society with a precise
rule for every possible human act and every configuration of
circumstances would probably be a society with a great deal of
injustice and very little freedom. Change is part of the nature of
tort law.
Tort law is better understood when its limits are appreciated.
Law cannot effectively solve all problems. Even issues capable of
legal resolution are sometimes resolved outside the law by
community standards and practices that do not depend heavily
upon formal tort law.46 In many other instances, however, tort law
tends to articulate and reinforce community standards and to
provide a framework for discussion and argument about their
application.
Some tort rules or principles may be precise enough and well-
known enough to guide conduct, at least in a general way. This
may be especially so in the case of defendants who act repeatedly
and plan their conduct to avoid legal liability. Manufacturers know
that dangerous products can lead to tort liability, even if they do
not know detailed rules.
Many of the technical or professional rules of tort law, the rules
that affect litigation outcomes, however, are not known or
understood by people in general. Even if they were known, the tort
rules seldom determine outcomes of litigation by themselves. That
is, the technical tort rules are almost never detailed enough to lead
inexorably to a given conclusion except in extreme cases. Tort law
directs people to use reasonable care under the circumstances, but
it does not attempt to define in advance what counts as reasonable
care in all possible circumstances.
Some tort rules are not even about conduct at all, but about how
to interpret its effects. Rules about how to judge whether the
defendant’s conduct caused harm would almost never guide
anyone’s actual conduct even if the rules were precise and well-
understood.
Why have tort rules at all if people do not know them and
cannot use them to guide their conduct?
32
First, the traditional tort rules governing conduct to a large

extent reflect social values and norms already in existence in the
culture. They do not create new standards imposed by
authoritarian judges; they merely enforce what society already
believes. This view also explains why tort rules can be announced
after the dispute arises; they do not invent a new standard and
impose it on past conduct, but instead resolve disputes about
events in the past in the light of standards we generally share may
not have not fully articulated. So we do not expect all tort rules to
directly shape conduct. Rather, it is often the case that the tort
rule confirms or articulates preexisting social ideals and perhaps
reinforces them by imposing liability.
Second, even if tort rules had no effect at all on actual conduct,
they are professional tools. They alert lawyers to issues in a
dispute that judges and others can recognize as legitimate issues.
They tell lawyers what kind of evidence to look for and introduce in
court. They help lawyers formulate the terms and structure of their
arguments. For example, if a rule says that people must use
reasonable care in the circumstances, and that custom of the
relevant community is to be considered in judging reasonable care,
you would not know from the rule alone what conduct is or is not
acceptable. You would know, however, that you could look for
evidence of community custom, introduce it in evidence, and
construct your argument on the basis of that custom. Rules are
thus tools for practical and moral discourse and for legal
argumentation. As tools, they work in a setting that not only
includes the facts of particular cases but social facts and
institutional environment as well.
________________________________
1 There are many variations in tort theories, particularly in
determining what counts as a legal wrong. See, e.g., John C.P. Goldberg &
Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733
(1998) (emphasizing relationships of the parties to tort litigation); Mark
Geistfeld, Negligence, Compensation, and the Coherence of Tort Law, 91
Geo. L.J. 585 (2003); Mark A. Geistfeld, Social Value as a Policy Based
Limitation of the Ordinary Duty To Exercise Reasonable Care, 44 Wake
Forest L. Rev. 899 (2009) (emphasizing the primacy of personal security).
2 See Fairchild v. Glenhaven Funeral Servs., [2002] 3 All E.R. 305,
[2002] 3 All. E.R. 305, 2002 WL 820081 (H.L. 2002) (“The overall object of
tort law is to define cases in which the law may justly hold one party liable
to compensate another.”).
3 See Kenneth W. Simons, Tort Negligence, Cost-Benefit Analysis,
and Tradeoffs: A Closer Look at the Controversy, 41 Loyola L.A.L.Rev.
1171 (2008); George P. Fletcher, Corrective Justice for Moderns, 106 Harv.
L. Rev. 1658 (1993) (Reviewing Jules Coleman, Risks and Wrongs). Some
writers have tried to find some middle ground in which both morality and
social utility are given appropriate room for operation. See Izhak Englard,
The Philosophy of Tort Law (1993).
4 See Kenneth S. Abraham, What Is a Tort Claim? An
Interpretation of Contemporary Tort Reform, 51 Md. L. Rev. 172 (1992).
5 Many books and articles, often by authors trained in philosophy or
political science, are devoted to ideas about corrective justice. See, e.g.,
Robert L. Rabin, Law for Law’s Sake, 105 Yale L. J. 2261 (1996); Jane
Stapleton, Evaluating Goldberg and Zipursky’s Civil Recourse Theory, 75
Fordham L. Rev. 1529 (2006); Steven Walt, Eliminating Corrective
Justice, 92 Va. L. Rev. 1311 (2006); Benjamin C. Zipursky, Civil Recourse,
Not Corrective Justice, 91 Geo. L. J. 695 (2003).
6 Kenneth W. Simons, Negligence, 16 Social Philosophy & Policy 2
52, 91 (1999).
7 United States v. Cannons Eng’g Corp., 899 F.2d 79, 87 (1st Cir.
1990) (“Substantive fairness introduces into the equation concepts of
corrective justice and accountability: a party should bear the cost of the
harm for which it is legally responsible.”).
8 Migliori v. Airborne Freight Corp., 426 Mass. 629 690 N.E.2d 413
(1998).
9 Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672 (7th Cir. 2003).
10 See Ernest J. Weinrib, Corrective Justice, 77 Iowa L. Rev. 403
(1992). An opposite view is that corrective justice has no independent
moral force; everything is distributive justice. See Steven Walt,
Eliminating Corrective Justice, 92 Va. L. Rev. 1311 (2006) (discussing
various views).
11 See John G. Cullhane, Tort, Compensation, and Two Kinds of
Justice, 55 Rutgers L. Rev. 1027 (2003) (discussing the compensation
system for 9/11 victims).
12 See Robert L. Rabin, Some Thoughts on the Ideology of Enterprise
Liability, 55 Md. L. Rev. 1190 (1996).
13 See Francis E. McGovern, Resolving Mature Mass Tort Litigation,
69 B. U. L. Rev. 659 (1989).
14 See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 25 Cal.
Rptr. 2d 550, 863 P.2d 795 (1993).
15 See § 6.12.
16 See David A. Fischer, Successive Causes and the Enigma of
Duplicated Harm, 66 Tenn. L. Rev. 1127 (1999) (concluding that courts
generally choose fairness when forced to choose between the two goals).
17 Differing views about justice vs. deterrence (or moral vs. economic
analysis) are discussed in many articles, among them Gary T. Schwartz,
Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective
Justice, 75 Tex. L. Rev. 1801 (1997); William E. Nelson, From Fairness to
Efficiency: the Transformation of Tort Law in New York, 1920–1980, 47
Buff. L. Rev. 117 (1999).
18 It may be argued that if anyone, wrongdoer or not, compensates
the plaintiff, corrective justice has been done. In this view, the state or an
insurance company could compensate victims in the interests of corrective
justice. Others have emphasized that corrective justice is not merely
compensation, but compensation from the wrongdoer; that is, it requires a
demonstration of “public respect for rights and public recognition of the
transgressor’s fault by requiring something important to be given up on
one side and received on the other, even if there is no equivalence of value
possible.” Margaret Jane Radin, Compensation and Commensurability, 43
Duke L. J. 56 (1993).
19 A most elaborate theory of strict liability based on corrective
justice was presented many years ago by Richard Epstein in A Theory of
Strict Liability (1980).
20 This idea can be viewed as a moral idea and hence a part of justice
reasoning, but it has affinities with an economic idea that says an
enterprise should not be permitted to externalize its costs. See § 2.5. Both
forms of the idea are attractive but both raise additional questions. What
costs should be regarded as part of the potential costs or losses that go
with hang-gliding? If the answer is “foreseeable harms to others,” then the
argument sounds like an argument for negligence liability, not strict
liability, because the judgment that a defendant has taken unreasonable
risks is based on the conclusion that the risks were foreseeable.
21 See §§ 32.5 & 32.8 (no strict liability for activities that are
common and no strict liability when plaintiff participates in the dangerous
activity).
22 George Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L.
Rev. 537 (1972), developed the reciprocity idea. Later, Fletcher modified
his views a little to speak of “dominance” as ground for liability in contrast
to “failed cooperation” which calls for dividing liability between the
parties. George Fletcher, Corrective Justice for Moderns, 106 Harv. L. Rev.
1658 (1993) (reviewing Jules Coleman, Risks and Wrongs).
23 Catherine Wells, Tort Law as Corrective Justice: A Pragmatic
Justification for Jury Adjudication, 88 Mich. L. Rev. 2348 (1990).
24 What counts as “compensation” is in part the subject matter of
remedies. Conceivably corrective justice might accept some response from
the wrongdoer-defendant that is not measured by money losses. See
Margaret Jane Radin, Compensation and Commensurability, 43 Duke L.
J. 56 (1993).
25 See National Safety Council, Injury Facts, published annually and
available at www.nsc.org.
26 See Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 462,
150 P.2d 436, 441 (1944) (Traynor, J., concurring); George L. Priest, The
Invention of Enterprise Liability: A Critical History of the Intellectual
Foundations of Modern Tort Law, 14 J. Leg. Stud. 461 (1985); Virginia E.
Nolan & Edmund Ursin, Understanding Enterprise Liability 168 (1995).
27 See Gary T. Schwartz, The Beginning and the Possible End of the
Rise of Modern American Tort Law, 26 Ga. L. Rev. 601(1992).
28 Deborah R. Hensler, et al., Compensation for Accidental Injuries
in the United States (RAND 1991). This study concludes that only 10% of
all persons who are compensated for injuries receive payments under the
tort system, that is, from the tortfeasor or his insurer. These payments
amount to even less: 7% of the compensation dollar. The tort system plays
a greater role, however, when it comes to auto cases.
29 See Mark Geistfeld, Negligence, Compensation, and the
Coherence of Tort Law, 91 Geo. L.J. 585 (2003).
30 See, with different arguments, Stephen D. Sugarman, Doing Away
with Personal Injury Law 7–9 (1989); Daniel Shuman, The Psychology of
Deterrence in Tort Law, 42 Kan. L. Rev. 115 (1993).
31 For example, some of the limitations on punitive damages adopted
by the Supreme Court under the Due Process Clause, which are not
focused on the profit made by the defendant from his tortious activity but
on other factors altogether, may eliminate deterrence in some instances.
See § 34.6.
32 See §§ 12.3 to 12.5.
33 Cf. Guido Calabresi, The Costs of Accidents (1970) (suggesting
that if the activity bears the costs of accidents associated with that
activity, the costs of the activity will rise and accidents will be reduced
either because people will seek alternate ways of avoiding the higher costs
or ways of making the activity safer).
34 See §§ 12.3 to 12.5.
35 See Chapter 36.
36 See Chapter 31.
37 See Kenneth S. Abraham, What Is A Tort Claim? An
Interpretation of Contemporary Tort Reform, 51 Md. L. Rev. 172 (1992);
Glen O. Robinson & Kenneth S. Abraham, Collective Justice in Tort Law,
78 Va. L. Rev. 1481 (1992).
38 See Robert S. Summers, Evaluating and Improving Legal
Processes—A Plea for “Process Values”, 60 Cornell L. Rev. 1 (1974).
39 James Henderson, Process Constraints in Tort, 67 Cornell L. Rev.
901 (1982), contains an excellent and well-known discussion of similar
ideas. Professor Henderson, however, argues a step further: rules
requiring a balance and evaluation of a number of factors detract from
legal process partly because they turn judges into intuitive decision-
makers, or managers, or planners, (or, one might fear, autocrats).
40 Judge Arnold collected many early cases of trespass, only a few of
which involved trespass to land alone. See Morris Arnold, Select Cases of
Trespass from the King’s Courts—1307–1399 (1985).
41 “[I]f a man throws a log into the highway, and in that act it hits
me, I may maintain trespass, because it is an immediate wrong; but if as it
lies there I tumble over it and receive an injury, I must bring an action
upon the case, because it is only prejudicial in consequence….” Reynolds v.
Clarke, 1 Str. 634, 93 Eng.Rep. 747, 748 (K.B. 1726) (Forescue, J.).
42 Before that time, the Royal courts did entertain some indirect
injury suits under the Trespass writ. See M.J. Prichard, Scott v. Shepherd
(1773) and the Emergence of the Tort of Negligence 5, 13 ff. (1976).
43 Some scholars are skeptical. See Gary Schwartz, Tort Law and the
Economy in Nineteenth-Century America: A Reinterpretation, 90 Yale L.
J. 1717 (1981); cf. Stephen Young, Reconceptualizing Accountability in the
Early Nineteenth Century: How the Tort of Negligence Appeared, 21
Conn. L. Rev. 197 (1989).
44 On the bot or fixed payment that could be demanded for each kind
of affront and the blood-feud basis for this procedure, see 2 Sir Frederick
Pollock & Frederic William Maitland, History of English Law 451, 525
(1952).
45 Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850).
46 See Robert C. Ellickson, Order without Law (1991).
33
Chapter 3
TORT LAW IN PRACTICE

Analysis
A. ADJUDICATION OF TORT CASES
B. FUNDAMENTAL OPERATING CONCEPTIONS
§ 3.3 The Prima Facie Case and the Burden of Proof
§ 3.5 Privilege, Justification, Excuse and Immunity
C. THE BACKGROUND CONDITIONS OF TORT LAW
__________
A. ADJUDICATION OF TORT CASES

Tort law as practiced by professionals operates in settings and
under conditions that determine much about the impact the formal
rules will have on the parties. The characteristics of trials and
appeals are among those conditions, and several traits of the trial
and appeal system directly affect the way tort law works.
Determining law. Disputes in trials are often either about the
facts of the case—what happened—or about the law applicable to
the case. Disputes about law commonly include issues of
interpretation and application. The parties may interpret earlier
decisions of the court in a different way; or one of them may argue
that precedent does not apply because the particular facts of the
case differ from those in earlier decisions. Disputes about law are
decided by the judge.
Determining facts. Factual disputes arise when the parties or
witnesses contradict one another and when there are gaps in the
evidence that might be filled by different inferences of fact. There
is no guarantee that any witnesses will be found, or that they will
have good memories, or that they will be reputable and convincing,
so some of the disputes are about the trustworthiness of the
evidence presented. Factual disputes are decided by the trier of
fact (“the trier”), which is the jury if there is one. The parties may
in effect waive the jury and permit the judge to step aside from his
role as interpreter of the law to determine the facts in particular
cases.
Evaluating facts in the light of the law. A third kind of dispute
is about how conduct is evaluated. If the trier determines that the
defendant drove his car 60 miles per hour, and the judge
determines that the law required the defendant to exercise
reasonable care under the circumstances, someone must still
evaluate the defendant’s conduct by
34
applying the legal rule of reasonable care to the facts.

Sometimes 60 miles per hour is unreasonable (around children
playing, for example) and sometimes not (on an interstate
highway, for example). This third or evaluative kind of dispute is
frequently decided by the jury, but sometimes judges make a rule
of law to cover the particular evaluation.
Adversary presentation. The adversary system of the common
law permits and requires the parties to present their respective
cases. The plaintiff must initiate a case by filing a complaint
summarizing the main facts on which her claim is based and by
serving the defendant with a copy. The defendant must ordinarily
file an answer summarizing defenses. At trial, the plaintiff must
present her evidence, subject to the defendant’s cross examination.
In turn, the defendant must present his evidence, subject to the
plaintiff’s cross examination. The judge may ask questions of a
witness but seldom does so. Almost never does the judge direct any
investigation of facts.
Trials and appeals. All three kinds of disputes are initially
decided in the trial court, where the parties present their evidence,
usually in the form of witnesses’ testimony. The trial judge must
decide all issues of law that arise and instruct the jury about the
law it is to apply in evaluating the parties’ conduct. Appeals are
quite different. Judges in the appeals court only determine issues
or rules of law; they do not weigh evidence or substitute their own
evaluations for those of the jury.1
Expense. Trial of a substantial tort claim is expensive.
Preparation for trial consumes large amounts of lawyer time. It
may entail many expenses, too, such as expenses of finding
experts, learning from them, and planning how to present their
testimony. If the parties do not settle the case and trial actually
takes place, additional costs will be incurred. The parties may
dispute both the facts and the application of law to the case. If the
amounts in issue are large, both parties will have some incentive to
settle to avoid a total loss. Most cases are in fact settled.
Credible threats. The strategy of both parties in tort litigation is
to create a credible threat to the other party. The plaintiff makes a
credible threat by asserting a claim for damages that the law
recognizes as a valid claim, and by asserting facts that support the
claim. The defendant makes a credible threat by asserting a
defense the law recognizes, along with supporting facts. If the law
does not clearly support the plaintiff’s claim, the claim is less
threatening than if the law clearly favored the plaintiff. In that
case, the defendant would either refuse to settle or offer only a
relatively small settlement. And vice versa; the weaker the
defendant’s facts and arguments, the more the defendant would
tend to pay in settlement. However, even a weak claim with only a
10% chance of success may become threatening if the plaintiff can
plausibly assert that her injuries are very great and her damages
thus very high.
Non-objective claims. Claims for pain, suffering, and emotional
distress as well as claims for punitive damages are more
threatening in many cases than claims for wage loss or medical
expenses. The claim for damages for pain or the like is an open-
ended, non-objective claim, without any measurement. So it is a
potential threat for large sums of money. Such a claim adds
magnitude to the threat and tends to encourage the defendant to
think of settling the claim.
Motion to dismiss. Two important procedural devices can be
used before trial to exclude claims that are not legally justified.
The first is a motion to dismiss (called a
35
general demurrer under earlier common law procedure). The

relevant kind of motion to dismiss asserts that the adversary’s
claim or defense is not legally valid even if all the facts are exactly
as claimed by the adversary. This motion is not about facts at all,
but about the legal validity of the claim or defense, assuming the
alleged facts are true.
Summary judgment. The other major procedure or device used
to exclude claims or defenses is the motion for summary judgment.
This motion also attempts to interdict a claim or defense before
trial, but it is made after the parties have completed discovery. The
process of discovery permits the parties to question witnesses
under oath to discover what their testimony will be, or to obtain
their testimony in written form. Written records of discovered
material can be filed with the court. The motion for summary
judgment asks the court to consider the undisputed testimony as
shown in discovery documents and to dismiss a claim or defense on
the basis of undisputed testimony if that testimony shows the
claim or defense to be legally invalid. Unlike the motion to dismiss,
the summary judgment motion permits the judge to consider facts
(as shown in the discovery documents) to determine whether there
really is a factual dispute. But the summary judgment motion does
not permit the judge to decide any disputed fact; disputed facts and
factual inferences are issues to be resolved at trial after the trier
hears live witnesses.
Other procedures to establish or eliminate threats. Even if the
parties are unable to settle and thus are forced to try the case, they
will continue to attempt to interdict threatening claims. Partly this
is to reduce the danger that the jury will make an unfavorable
award and partly it is to continue to create a climate for favorable
settlement. In the trial itself, parties argue legal rules (1) to
exclude or admit evidence and (2) to support or avoid instructions
to the jury according to whether the evidence or instruction is
favorable. Finally, the defendant will routinely move for a directed
verdict (now often called a motion for judgment as a matter of law
or JML) when the evidence is all before the jury. This motion is
addressed to the judge and says that the evidence is not sufficient
to establish the plaintiff’s claim, even if the evidence is taken to be
true. If the judge agrees, the motion will be granted and the case
dismissed. The jury will have no say in the decision if the evidence
is legally insufficient.
Even a very superficial discussion of trial strategies affecting
legal rules shows how difficult it is to translate abstract ideals of
tort law into practice. Whatever the aims of tort law—justice,
compensation, deterrence—they are not likely to be fully realized
in all cases. A good claim may founder on an unimpressive or
confused witness. Or a doubtful claim combined with expenses of
trial and risks of loss may induce a settlement justified only by the
expense, not by the merits of the claim. This may be an
unavoidable part of human limitations. If so, it is also true that
tort goals will be realized only in some cases, not all.
Judge and Jury
The role of the jury is central in tort litigation in the United
States. In most cases, a jury trial is available as a matter of right.
Jury trial is traditionally almost invariable in substantial tort
cases, though the actual use of juries overall is declining.2
36
The jury’s function is to determine and evaluate the facts.3

When the judge is designated to act as trier of fact (“the trier”), the
judge does the same. The jury as trier will decide whether a
witness is speaking truthfully and without mistake. The jury will
decide what factual inferences are to be drawn from the evidence.
When reasonable people could differ based on the evidence, juries
also evaluate the conduct at issue. For instance, a jury might
determine on the evidence the fact that the defendant was driving
at 60 miles per hour when he crashed into the plaintiff and then
might evaluate his conduct by determining that it was
unreasonably risky and amounted to negligence.4 In so doing,
jurors bring their own knowledge of “social facts” to bear on the
case.5 Finally, the jury will determine the amount of damages,
subject to the judge’s instructions about the legal rules for
measuring damages.6
The trial judge has considerable power to affect the jury’s
determinations.7 The judge in the first instance will submit to the
jury only those claims for which there is sufficient evidence
adduced at the trial. If the plaintiff says she was injured when
struck by the defendant’s car, but presents no other facts showing
how the injury occurred, the trial judge may not submit the claim
to the jury at all. The claim is consistent with the idea that the
defendant is at fault but also consistent with the idea that the
plaintiff is at fault. So the judge might direct a verdict, telling the
jury it must find for the defendant. In this extreme kind of case,
the judge is not weighing testimony or evidence but is considering
its logical or rational sufficiency to establish the plaintiff’s claim.
Evaluative decisions by the jury are treated similarly. If
reasonable people could differ, the claim will be decided by the
jury; if not, the judge will direct a verdict for the defendant.8
Appellate judges may address the same issue on the basis of
written transcripts of the testimony. Judges can also control jury
determinations to some extent by excluding testimony that is
irrelevant or prejudicial.
Judges may minimize or eliminate the jury’s role in a different
way by making a rule of law that demands a precise result or that
casts the judge in the role of decision maker. For example, the
traditional rule of law was that trespassers could not recover
damages for injuries suffered by conditions negligently created by
the landowner on his own land.9 If the trespasser were a
neighboring Girl Scout taking a short cut across the defendant’s
land, the jury might think the defendant was negligent in creating
a dangerous, life-threatening condition. But under this rule, if a
trespasser asserted a claim against the landowner, there would be
literally nothing for the jury to decide, and
37
the judge would direct a verdict. The effect is to eliminate any

role for the jury in evaluating the defendant’s conduct.
For some, civil juries embody democratic values and represent
the community’s ability to resist harsh rules handed down from
above.10 Supporters also think that civil juries also serve a
separation of powers function within the judicial system,
contribute to political stability through citizen-participation, and,
because of their transitory nature, resist bribery and
intimidation.11 For others, juries are perceived as an almost
lawless threat, bent on exercising their prejudices and inflicting
undeserved losses upon unpopular defendants. Juries in individual
cases can no doubt fit either view, but actual studies, as distinct
from anecdotes about particular cases, show that juries take their
duties seriously and perform their roles responsibly. For example,
they usually get the same outcome that the judge would get, and in
some cases actually favor defendants more than judges do.12 The
evidence is that jurors do not favor plaintiffs over corporate
defendants.13 They find for plaintiffs in personal injury tort cases
in only just about half the cases on average,14 and in medical
malpractice cases in only around one-third or one-fourth of the
cases.15
If the defendant is no more at risk when a jury decides the case
than when the judge does so, the judge’s decision to permit the jury
to be the decision maker in a given case still has strategic impact.
A judge’s decision to reject a defendant’s motion for summary
judgment, for example, helps to make the plaintiff’s claim a more
credible threat and hence may increase pressure on the defendant
to settle in a way favorable to the plaintiff. This effect may occur
even before the judge makes an actual decision. Because litigators
are like chess players, thinking at least several moves in advance,
the defendants’ lawyers will also be inclined to settle when they
believe that the judge will leave the case to the jury at the end of
the trial.
The Jury as Meliorator and Repository of Community
Values
One view of juries sees them as an institution for meliorating
the rigors of the law when it applies too harshly in particular
cases. In this respect juries could be compared to the chancellor
sitting in the old separate equity courts and using discretion rather
than law to obtain fair results.16 Like the chancellor, the jury
decides a particular case;
38
it does not make law.17 Perhaps this gives juries the freedom to
act in accord with the community conscience when a judge, who is
bound to make a record of the legal rulings and who acts in the
sight of lawyers and appellate judges, may feel more constrained.
At any rate, the view of the jury as meliorator of harshness or
dispenser of equity is related to the idea that the jury represents
the community and its values. And if the jury is drawn from all
members of society at random, it will in some sense represent the
community. In many tort cases, community values form the basis
for moral judgment about the parties’ fault and justifications. In
those cases, a significant role for the jury may be especially
desirable.18
On the other hand, one might believe that one’s rights should
not be subject to a judge’s or jury’s discretionary veto. If the
plaintiff has a right not to be discriminated against on the job or
subjected to sexual harassment, a judge or jury should not
undermine that right by a discretionary refusal to enforce it. When
the law seeks to uphold a right that does not fully conform to
community feelings, courts are likely to reduce the jury’s role for
the very reason that it does represent working values in the
community. In libel cases, for example, courts fear that the jury
may lose sight of the value of free speech when faced with
derogatory statements about the plaintiff. Accordingly, legal rules
constrain liability and give the judges more power in certain libel
cases.19
Because juries (like judges) both protect community values and
undermine them, judges in tort cases play out a considerable
ambivalence, sometimes relying heavily on the jury, sometimes
manipulating rules and judgments to sideline it. Many of the tort
rules and practices seen in this book can be understood as taking
one side or another about the jury’s appropriate role.
B. FUNDAMENTAL OPERATING CONCEPTIONS
§ 3.3 The Prima Facie Case and the Burden of
Proof
Tort law operates with a number of fundamental conceptions in
deciding rights of the parties to a dispute. Most of these, such as
the concept of negligence, are developed in the substantive
chapters of this book; they help define the relevant tort. This
section and the next focus instead on conceptions about the gross
structure of the tort case, particularly on the non-technical ways
courts think about the elements of tort claims and about defenses.
“Elements.” The plaintiff cannot prevail in any tort claim
without providing evidence of facts that show certain specific
elements or features of the claim. The elements differ according to
the tort claimed. For instance, the plaintiff who sues for false
imprisonment must prove that the defendant confined her; that is
one of the elements of that particular claim. The plaintiff who sues
for battery need not prove confinement at all, but must prove that
the defendant wrongfully touched her. Sometimes the elements to
be proved are generalized very broadly; nevertheless, when
39
the plaintiff knows all the elements she must prove to avoid
losing, she has at least a general idea, maybe a specific one, about
the kind of evidence she needs.
The prima facie case. When the plaintiff provides testimony
about facts that show all the elements necessary for the tort she
claims, she has made a prima facie case. This is an important
concept. What this means is best understood by noticing that we
cannot say the plaintiff wins when she offers testimony on all the
elements of the claim. First, the jury might disbelieve her evidence
on some essential element. Second, the defendant may have a valid
defense. When the plaintiff has made out a prima facie case she
qualifies as a starter in the race, and her case goes to the jury.
The burden of proof. “Prima facie” case implies a second
important rule. It implies that the plaintiff has the burden of
producing evidence and persuading the trier on each of the
elements of her case. The term “burden of proof” is itself a
troublesome one. Agonizing details can be left for later,20 but the
burden of proof rules are too important in tort litigation to ignore
even in a brief introduction to tort law. The term burden of proof
means at least two things. First, if nothing is proven on a point,
the point must be decided against the party with the burden of
proof. If the plaintiff must prove confinement to prove a false
imprisonment, but fails to do so, the plaintiff has not met her
burden of proving the elements of the claim and she will lose.
Second, even if the plaintiff has presented testimony, but the jury
is not sure it is convinced by it, the burden of proof rules tell the
jury what to do. A juror whose mind is evenly balanced on the
issue, not sure that the testimony is true or untrue, must vote
against the plaintiff because she has the burden of convincing
jurors by the weight of the evidence.21
Preponderance of the evidence or probability. The doubtful juror
problem is related to the idea that the plaintiff’s burden is not
merely to offer testimony, but to persuade the jury by a
preponderance of the evidence.22 Preponderance means only
“greater weight” of the evidence.23 Contemporary thinking usually
expresses the rule in terms of probabilities. The plaintiff need not
prove that each fact necessary for her prima facie case is certainly
true or true beyond a doubt. Instead, she must prove that each
material fact is more probable or more likely than not.24
Plaintiff or defendant as the source of evidence. To say a party
has the burden of proof on a given point is not to say that the
evidence must originate with that party. It is rather a way of
describing who will suffer if sufficient evidence does not appear.
Suppose the plaintiff in a medical malpractice case has the burden
of proving that the defendant physician was negligent, but that the
only evidence of his negligence came when the defendant himself
admitted under oath that he failed to follow the medical standard
of care. Even though the plaintiff herself did not produce that piece
of testimony, it is still evidence and will satisfy the plaintiff’s
burden of proof. When we say that the plaintiff has the burden of
proof, then, we mean that if the evidence on an
40
element (and accompanying persuasion) is absent, the plaintiff

will not get her case to the jury at all; the judge will ultimately
dismiss it.
Significance of burden of proof rules. Burden of proof rules are
enormously important in deciding tort cases and in preparing them
as well. They tell lawyers which side has the burden of finding and
producing evidence on the elements of the claims and defenses, and
what will happen if the burden is not met—that the claim will be
lost or the defense will fail. Burden of proof rules then go on to
decide many cases. If the plaintiff proves that there is a mere
chance that the defendant was negligent, the proof standard will
require dismissal of the claim because the plaintiff must prove the
claim by a more-likely-than-not standard. There is secondary
fallout, too. Courts will rarely direct a verdict in favor of the party
with the burden of proof, because the jury is ordinarily free to
weigh the evidence and to conclude that the evidence does not
really show a necessary fact by the more-likely-than-not
standard.25 And a judgment for one party may be reversed simply
because the trial judge failed to clearly instruct on the burden of
proof.26
Burden of proof. Although the plaintiff has the burden of
proving the elements of her prima facie case by the greater weight
of the evidence, it is the defendant who must carry the burden of
proof on affirmative defenses. Facts showing affirmative defenses,
if believed by the trier of fact, will exculpate the defendant or at
least reduce the damages he must pay. The plaintiff’s own fault in
causing harm is a common affirmative defense in a negligence
case.27 The important point is that the burden is on the defendant
when it comes to affirmative defenses. If the defendant asserts self-
defense, but proves nothing about it, the jury cannot properly
relieve the defendant of liability. Likewise, if the defendant offers
testimony to show that the plaintiff was at fault, but the juror’s
mind is evenly balanced whether the testimony is true or not, the
jury must reject the defense.
Nature of affirmative defenses. Affirmative defenses can
logically admit that the plaintiff has presented a prima facie case,
yet offer a new and independent reason to deny or limit the
plaintiff’s recovery of damages. For instance, the plaintiff may
prove that the defendant intentionally struck her and that she
suffered a broken nose as a result, but the defendant may still
prevail on the affirmative defense that the statute of limitations
has run, even though the plaintiff made out a prima facie case. On
this as on all affirmative defenses the defendant will have the
burden of proof.
Confusion in colloquial use of “defense.” Sometimes lawyers and
even appellate judges speak inaccurately of “defenses” when they
mean something quite different. Take the plaintiff’s claim that the
defendant struck her and caused her broken nose. Suppose that
instead of pleading the statute of limitations (an affirmative
defense), the defendant responds by pleading that (1) he did not in
fact strike the plaintiff and (2) the plaintiff’s nose was broken
before she ever walked into the bar. In a colloquial sense, you could
say that the defendant’s response asserted two “defenses.”
However, legally speaking, such
41
a description is not only literally inaccurate; it is also likely to

lead to legal mistakes or ambiguity.
What the defendant is asserting in those two responses is not
something independent of the elements the plaintiff must prove.
Nor does the defendant have the burden of proving that he did not
strike the plaintiff or cause her harm. He is in fact asserting that
the plaintiff has failed to carry her own burden of proof. It is true
that the defendant might present facts showing he did not strike
the plaintiff, but those facts would tend to negate the plaintiff’s
prima facie case, rather than establishing some independent
ground for denying the plaintiff’s claim. Perhaps more importantly,
the burden rests with the plaintiff on these issues, not with the
defendant.
These difficult ideas can be put differently. Affirmative defenses
are relevant only if the plaintiff has made a prima facie case by
providing testimony to show all the required elements and if the
jury believes that testimony. If the plaintiff has not offered
evidence of some element in her case, the trial judge will direct a
verdict against her. If she offered evidence but the jury does not
believe it, the jury will find against her for failing to sustain her
burden. Only if the jury believes the plaintiff’s evidence does the
question of a defense logically enter into the picture. So rejection of
the defendant’s defense does not necessarily mean the plaintiff will
prevail; the jury might also reject the plaintiff’s testimony or
conclude that the plaintiff has failed to sustain her burden of proof.
If so, there is no tort to begin with and the defendant will prevail
for that reason, even if his affirmative defense is invalid.28
§ 3.5 Privilege, Justification, Excuse and
Immunity
Privileges defeat claims. One kind of affirmative defense is often
called a privilege. Although the initial evidence from the plaintiff
may show that the defendant has acted tortiously—say, by striking
the plaintiff with intent to harm him—nevertheless the defendant
may have been justified in doing so if he acted in self-defense. If so,
the privilege defeats the plaintiff’s claim. Privileges are limited by
the justification that gives rise to them. You can defend yourself,
but you can’t take the occasion to beat the attacker to a pulp.29
Some privileges, like self-defense, are well-established, but courts
may recognize new privileges whenever they believe the
defendant’s conduct was justified.30
Justification and excuse. The concept of justification is that
people in general can rightly act as the defendant did in the
circumstances. Justifications tend to invoke objective standards of
reasonableness to modify the flat rules of intentional and some
other nominate torts like libel. Excuses differ from justifications.
They do not assert that the defendant’s act was rightful and that
others should act in the same way. They rather assert that the
defendant’s conduct was understandable given his personal
condition and that he is not personally blameworthy for matters
not within his control. Excuses focus on subjective mental or
psychological characteristics of the actor; they include mental
disability, mistake, and infancy (meaning status as a minor).
42
Excuses generally do not defeat tort liability. In general,

however, excuses do not furnish defenses to intentional tort
claims,31 but justifications do. As a trespasser on another’s land,
you are a tortfeasor, even if you mistakenly believed the land was
your own.32 A minor or mentally disabled person may remain
liable for tortious conduct.33 These excuse rules reinforce the idea
that the tort systems tends to work with objective, not subjective,
standards of liability. However, sometimes tort liability depends
upon intent to cause a particular harm. In those cases, the
defendant’s mistake or mental disability might not show a defense,
but might show instead that the defendant lacked any tortious
intent in the first place, so that he would not be a tortfeasor at
all.34
Defeating liability on other grounds. The plaintiff who makes
out a prima facie case may be defeated on grounds quite distinct
from the justification invoked when a privilege is pleaded. For
example, the statute of limitations is a defense, but not a
justification. An immunity may also permit the defendant to escape
liability for tortious conduct. Immunity represents a broad policy
that allows the defendant to escape responsibility for wrongs, not,
like privilege, a claim that the defendant acted rightfully in the
particular circumstances. The immunity of government that allows
governmental entities to escape liability in many instances is an
example.35
The “privilege” way of thinking. Privilege analysis may be
invoked when the elements of the tort have been firmly defined by
specifying forbidden actions. In such torts, the plaintiff can
sometimes make out a prima facie case for liability without proving
that the defendant’s acts were unreasonable. By invoking a
privilege, the defendant injects issues of his reasonableness into
the case. Showing that he struck the plaintiff in justified self-
defense is one example. If he convinces the trier that he acted on a
reasonable belief that self-defense was necessary, and that he used
a reasonable amount of force, then he will escape liability.36
The “no-tort” way of thinking. Some torts are structured in such
a way as to make the reasonableness of the defendant’s conduct an
issue on the prima facie case. This means that the plaintiff must
prove unreasonable conduct to begin with, instead of putting the
burden on the defendant to raise a privilege and to assert that his
conduct was reasonable. The tort generally called negligence is like
this. The plaintiff must prove, among other things, that the
defendant took unreasonable risks which caused the plaintiff
harm. Since the plaintiff has the burden of proving unreasonable
conduct to begin with, the defendant need not raise a privilege
asserting that his conduct was reasonable. Instead, he simply
points to the plaintiff’s burden of proof and says that the plaintiff
has not proved unreasonableness. This is the no-tort argument,
and it grows out of the fact that in such cases the plaintiff has the
burden of proof. The defendant in making the no-tort argument is
not asserting an affirmative defense; he is saying the
43
plaintiff has not met her burden of proving her claim. This no-
tort argument can also apply to some other issues. For example, as
already pointed out, the defendant’s mental disability is not itself a
defense. Even so, a mentally disabled defendant may lack the kind
of intent necessary to show a particular kind of tort. The
defendant’s lawyer in such a case cannot assert that mental
disability is a defense, but he can assert that the mental disability
negated the intent necessary to show a tort in the first place. This
is the no-tort argument as well, in effect saying that the intent
element of the plaintiff’s prima facie case does not exist.
C. THE BACKGROUND CONDITIONS OF TORT
LAW
Three interrelated rules of remedies and attorney compensation
fundamentally affect the way tort law is practiced and, indirectly,
the operation of tort rules. Tort law cannot be assessed or well
understood without grasping these background rules.
The American rule on attorney’s fees. The “American rule” about
attorney’s fees is that the losing party is not required to pay the
winning party’s fees. Regardless of who wins the case, each party
pays its own attorney’s fees. There are exceptions,37 but in the
overwhelming number of common law tort cases, this is the rule.
One result of this rule is that the plaintiff who prevails in the
litigation may not be fully compensated after she deducts the costs
of attorney’s fees and other litigation expense.
Contingent percentage fees. Second, plaintiffs’ lawyers accept
most tort cases on a contingent, percentage fee. If the plaintiff does
not recover, the attorney is not paid at all. If the plaintiff does
recover, the attorney’s fee is a percentage of the recovery. The
percentage is fixed or limited in some kinds of cases in some states.
It may vary from a low of around 25% to a high of about 50%; most
are probably between these figures. This practice, combined with
the American rule, means that a plaintiff who fully recovers from
the defendant may still be uncompensated for anywhere from one-
fourth to one-half of her loss. It should not be assumed that a high-
percentage fee overcompensates lawyers. Since they are not paid at
all when a client does not recover, the percentage fee must pay for
the time spent in losing cases as well as in winning them.
Defendants’ lawyers usually charge an hourly rate. They usually
represent liability insurers or businesses that are self-insured.
Non-objective awards. Third, in personal injury tort cases, pain
and suffering can be enormous and can extend over years. The
verdicts for pain and suffering damage are often quite substantial,
even when they are modest in comparison to the injury suffered.
Punitive damages awards, when they are made at all, can also be
very large. These two kinds of damages have something in
common: they cannot be measured by any presently used objective
criterion. Consequently, the jury’s award may be quite difficult to
challenge on appeal. In the case of some intangible harms, such as
reputation harm in libel cases, traditional rules permit juries to
make a similar award, that is, one that is not limited by pecuniary
loss or measurable in any objective way.38 Although experienced
44
lawyers can often estimate the potential range of jury awards

with great accuracy, uncertainty creates a threat that is difficult
for defendants to deal with. Two arbitrary methods have been
introduced in recent years to limit the uncertainty. Some states
have passed damages caps, limiting pain and suffering damages or
even damages for needed medical attention resulting from the
defendant’s tort.39 And the Supreme Court of the United States
has mandated several procedures designed to limit punitive
damages, coupled with a strong suggestion that an arbitrary limit
on those damages will ordinarily be constitutionally compelled.40
One characteristic of non-objective awards has already been
noted—that the risk of such awards can create substantial threats
to defendants,41 because if defendants’ lawyers believe the facts
warrant an award of $500,000, they know that in the absence of
objective criteria, jurors might possibly award $1 million instead.
This risk in turn incentivizes the defendant to pay more in in
settlement than the estimated value of $500,000. A different
characteristic is equally important. Non-objective awards, such as
damages for pain, provide a fund from which the prevailing
plaintiff can pay her attorney’s fees and still get her actual out-of-
pocket losses paid by the tort recovery.
In the light of these rules and practices, it is easy to understand
why plaintiffs’ lawyers find it important to assert non-objective
damages claims. Besides whatever pressure such claims exert upon
defendants and their lawyers, they also increase the chance that
the plaintiff will receive full compensation for her actual economic
losses. There may be other justifications and needs for such non-
objective claims, but these reasons show why they are almost
imperative. If the “American rule” on attorney’s fees is eventually
displaced by a loser-pay rule, non-objective damages will find much
less obvious justification.42
The common law of torts is almost exclusively state law. The
federal government is circumscribed, having only those powers
specifically provided for by the federal Constitution. States, on the
other hand, enjoy plenary power except as limited by the
Constitution. These understandings leave the federal courts with
almost no admitted common law work to do. Instead, they interpret
and enforce federal statutes and the federal Constitution.
Federal statutes. Federal statutes have not adopted any general
tort law, and if they attempted to do so they would be
constitutionally questioned. Federal statutes create or deeply affect
tort law only when they are related to some field constitutionally
placed in the hands of the federal government, rather than the
states. For example, the Congress has created statutory tort law
for the protection of constitutional and other federal rights.43
Federal statutes also grant—and limit—tort claims against the
federal government itself.44 These statutes are peculiar because
they contain federally imposed
45
limits on the tort liability of the federal government, yet

otherwise rely upon state law to prescribe the tort rules.45
Another field for Congressional action is interstate commerce.
Congress can regulate matters affecting commerce and on this
ground has enacted tort statutes creating claims for interstate
railroad and maritime workers.46 These statutes are favorable to
the workers’ claims, providing more expansive rights than would
be granted under state law, which of course is displaced by the
federal statutes.
Federal environmental statutes supplement the common law
tort of nuisance and the common law of strict liability for abnormal
danger, sometimes creating surprising liabilities in connection
with the release of hazardous substances.47 The federal trademark
statute creates rights in trademarks and in practice it has largely
displaced the common law of trademark.48 Under other
constitutional provisions, Congress has enacted patent49 and
copyright50 statutes. These in effect define certain intellectual
property interests and set up tort claims for their infringement. A
number of federal statutes create claims in particular settings, for
example, claims for misrepresentation in the sale of securities51
and claims for certain kinds of acts that state tort law would
classify as privacy invasions.52
Preemption. Sometimes Congress does not actually create a
claim in tort but does set a standard of some kind. Congress and its
regulatory agencies set safety standards for automobile
manufacturers, for example, by requiring seat-belts or airbags. If a
manufacturer complies with federal standards, but the product is
nevertheless unsafe and causes harm, can state tort law hold the
manufacturer liable? The question peels open a new layer of tort
issues that in turn opens into the federal system itself.
Since the federal system is supreme (within its constitutional
powers), Congress could provide for preemption or displacement of
state tort law as it has done with the copyright statute. Even if it
does not do so explicitly, its legislation might still imply such a
preemption. Or preemption might be thought necessary to carry
out the federal scheme of things. On one or more such grounds,
courts have found that various federal statutes displaced or
preempted state tort law.53 For instance, a tobacco manufacturer
who complies with the warning prescribed by federal statute
cannot be held liable under state tort law for failure to give a better
warning.54 The effect is to make the federal standard the only
standard and to relieve the defendant who has complied with that
standard,
46
even if, by state law, that defendant was guilty of negligence or

other tortious conduct. This is the opposite effect of federal
legislation creating a claim for railroad workers.
Constitutional defenses or limits on state tort law. Because
federal law, within its sphere, is supreme, states may not impose
tort liability in a way that violates the United States Constitution.
The Supreme Court seldom strikes down an ordinary state-law tort
claim on constitutional grounds, but it is possible. Suits for libel,
quintessentially state-law tort claims, are now limited in several
ways by the Constitution’s free speech provisions, so that, for
example, state law may not impose strict liability for derogatory
speech published by defendants in discussing issues of public
concern.55
Federal claims in state courts. In some instances, federal
legislation not only preempts state-law claims but also gives
federal courts exclusive jurisdiction to hear the claims. For
example, patent and copyright claims must be tried in federal
courts, not state courts. In other instances, however, federal claims
can be tried in either state or federal courts, as the plaintiff wishes.
One example is the general federal civil rights claim.56 When
federal claims are enforced in state courts, the states are of course
compelled to follow the federal law for those claims, although they
may follow their own trial procedures.
State claims in federal court. In a few cases state-law tort
claims may be tried in federal courts. Sometimes this is because
the state-law claim is so closely related to a purely federal claim
that the two should be tried together. At other times this is
because Congress has permitted federal jurisdiction over certain
claims when the parties are of diverse citizenship, the plaintiff a
citizen of one state and the defendant a citizen of another.57 When
state-law tort claims are tried in federal courts, they are still state-
law claims and federal courts must apply the state law rules for
those claims, even though they follow their own federal procedural
rules.58
Scope of federal supremacy. Federal law is supreme and must
prevail when it conflicts with state law. However, in many
instances a federal rule applies only to a federal claim or a federal
statute; it has no application at all to a state-law claim. In such
cases, even if the federal and state rules are different, they are not
in conflict because they do not deal with the same thing. For
instance, federal decisions determine the incidents of a tort claim
under a federal tort statute like the Federal Employers Liability
Act, and state courts trying such cases must follow federal
decisions as well as the federal statute. But the federal rules apply
only to the tort claims created under that statute, not to similar
tort claims brought under state law.
Similarly, a federal rule may set a minimum standard, but may
at the same time permit states to set a higher one. The Supreme
Court, to protect free speech rights, requires that in most libel
actions, the plaintiff must prove at least some degree of fault on
the defendant’s part to justify a recovery.59 But states may provide
even more protection for free speech by requiring a high degree of
fault as a prerequisite to
47
liability.60 In the same way, the fact that a state law does not
violate the federal constitution does not mean that it meets the
demands of the state’s own constitution, and the state courts are of
course free to strike down their own rules on state law grounds,
even if those rules have been upheld as valid under the United
States Constitution.61
The relationship of state law to federal law and to the law of
other states is the topic of treatises on federal jurisdiction62 and
conflicts of law.63 The points sketched in this section show that tort
law today operates in a complex environment. Lawyers are
required not only to take into account the interaction of statutes
and common law decisions, but the interaction of state and federal
law as well.
No one can understand tort law in the United States without
recognizing that liability insurance fuels the system, limits its
capacity for compensation and deterrence, shapes the litigation,
and affects the costs and choices in the system as a whole.
Insurer’s obligations. Liability insurance protects the insured
against tort liability by paying the insured’s tort victims. Liability
insurance is not health or accident insurance; it pays only when
the insured is legally liable to pay because of his tort. Once a claim
covered by the policy is asserted against the insured, the liability
insurer is obliged to defend the claim and to pay any judgment
rendered against the insured, subject to the limits of the policy.
The insurer’s/insured’s attorney. The insurer has the right and
sometimes the duty to settle with the claimant as a way of
protecting the insured. As part of the insurer’s obligation to defend
the insured, it provides an attorney who must, at least in some
major degree, represent the individual insured. Although in most
states the insurer is not a party to the lawsuit, it stands
responsible for almost everything that happens on the defense side
of the case.
Social function of insurance and individual veto. Liability
insurance fuels a large number of tort cases, especially automobile
cases. It does so because many individuals who cause harm do not
have sufficient assets to pay for the harm they do and because the
chief assets, such as one’s home, may be protected by law. In fact,
Professor Gilles has demonstrated that the barriers to actual
collection of judgments against tortfeasors, including bankruptcy,
virtually nullify tort law when the tortfeasor is uninsured.64 The
existence of insurance and its amount become central practical
issues for the tort lawyers on both sides. If the insured defendant
does not have a sufficient amount of insurance, the plaintiff can be
only partly compensated. States now make some effort to require
liability insurance to cover automobile drivers, but the amounts of
insurance required
48
are quite limited in comparison to the amount of harm that may

be inflicted, and drivers may routinely evade insurance
requirements.65 Outside the field of motor vehicles, the decision to
purchase insurance, and the decision about its limits, is often up to
the individual policyholder, leaving large areas in which violent
actors are virtually immune from tort law simply because they are
uninsured.66
The individual veto on insurance and the lack of compulsory
coverage in significant amounts frustrates the tort goals of
compensation, deterrence and accountability. On the other hand, it
may be argued that the presence of insurance, not its absence,
undermines deterrence and accountability, since a fully insured
individual is protected from any personal payout, at least for
harms not caused by intentional acts.67 However, in many
instances, insured drivers may be more aware of and responsive to
the potential increase in insurance premiums than they are to
relatively remote and uncertain tort liability, although premium
adjustments in the case of injury caused by the insured do not fully
correlate with the insured’s risk-taking conduct.68 At the very
least, insurance costs serve as a periodic reminder that unsafe
conduct can have serious consequences.
With some torts, insurance costs may have a dramatic effect on
the care exercised. That may be the case with professional
malpractice. And if tort law is less a matter of deterrence and more
a matter of reinforcing values that the community and the
defendant already accept, insurance probably does not undermine
tort law’s effects. These and other reasons suggest that tort law
may retain a residual effect on conduct even in a system dominated
by liability insurance. But anyone can justifiably entertain the
suspicion that the more insurance serves the goal of compensation,
the less it will serve the goal of deterrence.
Insurance affecting decisions on liability? It is probably fair to
say that tort law expanded the rights of injured persons during
much of the 20th century at various rates of expansion until
around 1980. The expansion of accountability for fault occurred in
part by changing tort rules to make liability possible in areas
where defendants had been previously protected from liability.69
The expansion, at least in motor vehicle cases, was probably also
due in part to the perception of courts and juries that an insurer,
not the individual defendant, would pay the judgment in the case.
Ironically, expanded liability tends to drive up insurance costs,
which in turn may lead some people to reduce or eliminate their
insurance, thus reducing the funds
49
available to make compensation. Alternatively, increased

insurance costs have led some groups to seek exemption from tort
liability or at least a limitation on the amount of damages they
must pay. As this pressure increases, some courts seem inclined to
restrict liability in order to protect those funds from excessive
demands, resulting in less overall compensation for injury.
Insurance affects more aspects of tort law than can be readily
summarized. What has been said, however, should be enough to
indicate that tort law does not operate in a sterile laboratory. Its
hope for compensation and its hopes for deterrence, for corrective
justice and for social utility, are all among the aspects of tort law
affected by the presence of liability insurance.
________________________________
1 Judges do review for sufficiency of evidence, but not its weight.
See § 3.2.
2 See Valerie P. Hans & Stephanie Albertson, Empirical Research
and Civil Jury Reform, 78 Notre Dame L. Rev. 1497 (2003).
3 See § 13.1.
4 See Godfrey v. Iverson, 559 F.3d 569 (D.C. Cir. 2009); Brooks v.
Lewin Realty III, Inc., 378 Md. 70, 835 A.2d 616 (2003) (“The trier of fact
must then evaluate whether the actions taken by the defendant were
reasonable under all the circumstances.”); Restatement Third of Torts:
Liability for Physical and Emotional Harm § 8(b) (2010).
5 Where the defendant’s conduct involves risks the jury cannot
evaluate, courts will not permit the jury to make an evaluation of the
defendant’s conduct unless expert or other testimony is introduced at trial
to give the jury a basis for its conclusion. Thus medical malpractice claims
often require expert testimony to permit a jury to conclude that the
defendant’s choice of medical procedures could be evaluated as
unreasonable. E.g., Smith v. Andrews, 289 Conn. 61, 959 A.2d 597 (2008).
6 See Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456 (Colo. 2011)
(while judge has discretion to grant a new trial because of excessive or
inadequate damages, “the amount of damages is within the sole province
of the jury, and an award will not be disturbed unless it is completely
unsupported by the record or if it is so excessive as to indicate that the
jury acted out of passion, prejudice, or corruption”).
7 For more detailed discussion of the trial judge’s role, see § 13.1.
8 See Restatement Third of Torts: Liability for Physical and
Emotional Harm § 8(b) (2010).
9 See Chapter 20.
10 Stephan Landsman, The Civil Jury in America: Scenes from an
Unappreciated History, 44 Hastings L. J. 579 (1993), and others see
political values in the jury as well as “equity.”
11 Paul D. Carrington, The Civil Jury and American Democracy, 13
Duke J. Comp. & Int. L. 79 (2003).
12 Juries are by no means always better for plaintiffs than judges.
See Kevin Clermont & Theodore Eisenberg, Trial by Jury or Judge:
Transcending Empiricism, 77 Cornell L. Rev. 1124 (1992); Michael J. Saks,
Public Opinion about the Civil Jury: Can Reality Be Found in the
Illusions?, 48 DePaul L. Rev. 221 (1998); Leon Green, Judge and Jury 406
(1930). Another study shows that judges and juries make punitive
damages awards at similar rates. Theodore Eisenberg, Neil LaFountain,
Brian Ostrom, David Rottman & Martin T. Wells, Juries, Judges, and
Punitive Damages: an Empirical Study, 87 Cornell L. Rev. 743 (2002).
13 Nor do jurors generally disfavor corporate defendants. See Valerie
P. Hans, The Illusions and Realities of Jurors’ Treatment of Corporate
Defendants, 48 DePaul L. Rev. 327 (1998).
14 See Valerie P. Hans & Stephanie Albertson, Empirical Research
and Civil Jury Reform, 78 Notre Dame L. Rev. 1497 (2003) (reflecting a
52% win rate in 75 large counties in one year and a 49% win rate four
years later).
15 See Shari Seidman Diamond, Beyond Fantasy and Nightmare: a
Portrait of the Jury, 54 Buffalo L. Rev. 717, 730 (2006). A well-known
study in Ohio showed medical malpractice claimants losing over two-
thirds of the claims taken to court. Deborah Jones Merritt & Kathryn Ann
Barry, Is the Tort System in Crisis? New Empirical Evidence, 60 Ohio St.
L.J. 315 (1999).
16 1 Dan B. Dobbs, Law of Remedies § 2.4 (7) (1993).
17 The chancellor’s theory was that he only acted to compel the
particular defendant to act in accordance with conscience; he did not make
law.
18 Michael Wells, Scientific Policymaking and the Torts Revolution:
The Revenge of the Ordinary Observer, 26 Ga. L. Rev. 725 (1992); Patrick
Kelley, Who Decides? Community Safety Conventions at the Heart of Tort
Liability, 38 Clev. St. L. Rev. 315 (1990); Catharine Wells, Tort Law as
Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88
Mich. L. Rev. 2348 (1990).
19 See §§ 37.15 to 37.17.
20 See §§ 13.2 & 13.4.
21 See, e.g., 1 Ohio Jury Instructions 3.50 (2006) (“If the weight of
the evidence is equally balanced, or if you are unable to determine which
side of an issue has the preponderance, the party who has the burden of
proof has not established such issue by a preponderance of the evidence.”).
22 There are some very limited qualifications to this rule. See § 14.11
(causation); § 37.18 (defamation) & § 43.4 (fraud).
23 See Rose v. Jaques, 268 Va. 137, 597 S.E.2d 64 (2004).
24 See Hanks v. Entergy Corp., 944 So.2d 564, 578 (La. 2006).
Expressed statistically, this means that the plaintiff must persuade the
trier that the likelihood exceeds 50% that each material fact is true.
25 Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906 (10th Cir.
2005); Christenson v. Bergeson, 688 N.W.2d 421 (S.D.2004).
26 See Barber v. LaFromboise, 908 A.2d 436 (Vt. 2006) (“Few issues
in a lawsuit of any nature are more essential than burden of proof.”).
27 E.g., Barber v. LaFromboise, 908 A.2d 436 (Vt. 2006). The
affirmative defense may be complete, barring the plaintiff’s claim entirely,
or it may be partial, reducing the damages that the plaintiff may
otherwise recover. Some states still make the plaintiff’s fault a complete
defense, while others use the plaintiff’s fault merely to reduce damages.
See Chapter 19.
28 See the discussion of no-tort below, § 3.5.
29 See §§ 7.1 & 7.4.
30 See, e.g., Peterson v. Sorlien, 299 N.W.2d 123, 11 A.L.R.4th 208
(1980).
31 Personal disabilities are important in tort law, but not always
because they are defenses. For instance, the plaintiff’s infancy or mental
disability or ignorance-mistake is very likely to “excuse” delay in bringing
suit.
32 Restatement Second of Torts § 164 (1965); See § 5.2.
33 See § 4.3. Very young children may be exempted, however. See §§
10.14 to 10.16.
34 White v. Muniz, 999 P.2d 814 (Colo. 2000) (one whose mental
condition prevents forming an intent to harm or offend by physical
touching has not committed battery); Adams v. National Bank of Detroit,
444 Mich. 329, 508 N.W.2d 464 (1993) (a defendant who honestly but
mistakenly identifies the plaintiff as the person who committed a crime is
not liable for intentional infliction of mental distress; to say that the
defendant was honestly mistaken is to say that the defendant lacked the
requisite intent to inflict distress).
35 See Chapter 22.
36 See §§ 7.1 to 7.4.
37 The largest number of cases in which a losing party must pay a
prevailing party’s reasonable attorney’s fees are based on a specific statute
authorizing a fee recovery. Federal civil rights cases are a major example.
See 1 Dan B. Dobbs, Law of Remedies § 3.10 (2d ed. 1993). A less common
exception is that a particular tort like malicious prosecution may be aimed
at recovery of attorney’s fees. See § 39.1.
38 See § 37.3. Constitutional and other changes impact this
traditional rule but do not entirely eliminate it.
39 See § 34.7.
40 See § 34.6.
41 See § 3.1.
42 See Joseph H. King, Jr., Pain and Suffering, Noneconomic
Damages, and the Goals of Tort Law, 57 S.M.U. L. Rev. 163, 207–208
(2004).
43 One statute of very general application is 42 U.S.C.A. § 1983,
creating a tort claim for violation of federal rights. Other statutes go
further, adding new rules or procedures to implement federal
constitutional rights. See, e.g., 42 U.S.C.A. § 2000e (“Title VII”).
44 The Federal Tort Claims Act (FTCA), principally found in 28
U.S.C.A §§ 2671 to 2680.
45 See § 22.2.
46 See 45 U.S.C.A. § 51 (FELA, interstate railroad workers); 46 App.
U.S.C.A. § 688 (Jones Act, maritime workers).
47 See, e.g., 42 U.S.C.A. §§ 9607 et seq. (CERCLA, creating liability
for contamination of lands).
48 15 U.S.C.A. §§ 1051 et seq. See Chapter 46.
49 35 U.S.C.A. §§ 101 et seq.
50 17 U.S.C.A. § 101.
51 E.g., 15 U.S.C.A. §§ 77k & 77l; 15 U.S.C.A. § 78j (securities); 15
U.S.C.A. §§ 1701 et seq. (interstate land sales); 15 U.S.C.A. §§ 1601 et seq.
(certain disclosures to consumers).
52 29 U.S.C.A. §§ 2001 et seq. (lie detector tests by employers
forbidden, tort claim created); 18 U.S.C.A. §§ 2510 to 2520 (wiretapping,
claim created).
53 CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct.
1732, 123 L.Ed.2d 367 (1993) (federal speed limits for trains, preemption);
see §§ 12.10 & 33.20.
54 Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608, 120 L.Ed.2d 407
(1992) (but leaving certain other claims available); see § 33.20.
55 Critics of public officials and public figures can be held liable only
for knowing or reckless falsehoods, while critics of private persons on
matters of public concern can be held liable for any fault. See § 37.15.
56 42 U.S.C.A § 1983.
57 28 U.S.C.A § 1332.
58 The point was established in Erie Railroad v. Tompkins, 304 U.S.
64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). A long line of federal decisions has
explained the details and applied the rule.
59 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41
L.Ed.2d 789 (1974). See § 37.13.
60 E.g., Chang v. Michiana Telecasting Corp., 900 F.2d 1085 (7th Cir.
1990).
61 For instance, guest statutes limiting the tort claims that could be
brought by automobile passengers have sometimes been stricken as
unconstitutional under state law, as in Brown v. Merlo, 8 Cal.3d 855, 106
Cal.Rptr. 388, 506 P.2d 212 (1973), even though guest statutes had been
held valid under the federal constitution. Silver v. Silver, 280 U.S. 117, 50
S.Ct. 57, 74 L.Ed. 221 (1929).
62 Charles Alan Wright & Arthur R. Miller, Mary Kay Kane, Edward
H. Cooper, Kenneth W. Graham, Jr., Victor J. Gold, & Michael H.
Graham, Federal Practice & Procedure (available on Westlaw).
63 Eugene F. Scoles, Peter Hay, Patrick J. Borchers & Symeon
Symeonides (4th ed. 2004); Robert Leflar, Luther McDougal & Robert
Felix, American Conflicts Law (4th ed. 1986); Russell Weintraub,
Commentary on the Conflict of Laws (5th ed. 2006).
64 Stephen G. Gilles, The Judgment-Proof Society, 63 Wash. & Lee L.
Rev. 603 (2006).
65 See Gary T. Schwartz, Auto No-Fault and First-Party Insurance:
Advantages and Problems, 73 S. Cal. L. Rev. 611, 624 (2000).
66 See Jennifer Wriggins, Domestic Violence Torts 75 S. Cal. L. Rev.
121 (2001).
67 See Admiral Ins. Co. v. Price-Williams, 129 So.3d 991 (Ala. 2013);
see also Gary T. Schwartz, Reality in the Economic Analysis of Tort Law:
Does Tort Law Really Deter?, 42 U.C.L.A. L. Rev. 377, 382 (1994).
68 See Stephen D. Sugarman, Doing Away with Personal Injury Law
13–14 (1989). And in some areas, as in medical malpractice cases,
insurance is not “risk-rated,” so the dangerous actor does not risk paying
higher premiums. David A. Hyman, Medical Malpractice and the Tort
System: What Do We Know and What (If Anything) Should We Do About
It?, 80 Tex. L. Rev. 1639 (2002).
69 In terms of doctrine, which is readily identifiable if not fully
reliable, consider these examples: (1) Specific protections for landowners
have been restricted in a number of states; (2) immunities of the federal
government, state government, and local governments were substantially
reduced, mostly in the second half of the 20th century, although thereafter
large amounts of immunity were restored by legislation; (3) family
immunities have been substantially reduced or abolished; (4) civil rights
torts, which hardly existed before about 1960, have become a major field;
(5) environmental torts, in the modern sense largely statutory, are even
more recent; (6) contributory negligence and assumed risk defenses, which
once barred negligence claims, are now considered only in determining the
plaintiff’s damages, again a liberalization that has occurred almost
entirely after 1960. The full list is much longer.
51
Part II
INTENTIONAL TORTS TO PERSONS OR

PROPERTY
53
Chapter 4
DIRECT AND INTENTIONAL

Analysis
A. SCOPE OF THE CHAPTER
B. INTENT AND RELATED CONCEPTS
C. BATTERY
§ 4.7 Harm or Offense Required to Establish Simple Battery
§ 4.8 Nature of Intent Required to Establish Simple Battery
§ 4.9 The Bodily Contact Required to Establish Simple Battery
§ 4.10 Battery and Other Torts: Acts and Omissions
D. ASSAULT
E. FALSE IMPRISONMENT
F. EXTENDED LIABILITY AND DAMAGES
§ 4.20 Damages for Trespassory Torts to the Person
__________
A. SCOPE OF THE CHAPTER

Trespassory torts. This chapter addresses the elements of one
group of intentional torts to individual persons, part of a group
anciently called “trespassory” torts. Similar torts to property are
covered in the next chapter and defenses to these torts in the
chapter after that. Trespassory torts are accomplished through the
use of physical force,
54
rather than, say, the use of words. Torts like libel and
misrepresentation are not trespassory torts, for they are not
accomplished by force, and they are accordingly covered much
later. Liability for trespassory torts to the person is based upon the
defendant’s intent to commit some particular act, not upon some
generalized assessment of the defendant’s behavior. The acts that
count as torts in this chapter impact the plaintiff’s need for
physical security. They also impair the plaintiff’s freedom rights,
that is, the plaintiff’s rights of autonomy and self-determination.
Absence of physical harm requirement. All of these torts are
actionable even if the plaintiff has no proven physical harm.
Perhaps courts assume that the plaintiff suing for a trespassory
tort has some kind of emotional harm, but if so, the plaintiff is not
required to prove it. Put differently, these trespassory torts are
regarded as harmful in themselves, and in this respect they differ
fundamentally from claims for negligence, which always require
proof of actual harm.
Other consequences of the categorization as an intentional tort.
Intentional torts “are categorically distinct from other torts such as
negligence or strict liability.”1 The intentional tort finding has a
number of significant legal consequences. Fault of the plaintiff may
not be available as a defense. In addition, the defendant may face a
broader scope of liability for actions that count as an intentional
tort. Categorization as an intentional tort may also matter to some
consequences external to tort law itself. For instance, insurance
may exclude coverage for some intentional torts. Moreover,
workers’ compensation exclusive-remedy provisions may not apply
to intentional torts. The Restatement Third of Intentional Torts
makes clear, however, that intent need not be defined identically in
these varied tort and collateral contexts.2
Overlapping actions. The trespassory torts are a cluster of
specific, though related, causes of action. A given set of conduct
may be actionable under several of these causes of action. For
example, an employer’s “private waterboarding” of an employee
may give rise to a cause of action for assault, battery and
intentional infliction of emotional distress (and perhaps false
imprisonment too).3 Similarly, a sexual assault may be actionable
under a number of trespassory tort claims.4
Umbrella liability for intentional physical harm. The
Restatement Third of Torts takes a step beyond the traditional
trespassory tort rules and establishes an umbrella rule of liability
under which, “An actor who intentionally causes physical harm is
subject to liability for that harm.”5 This umbrella rule overlaps, but
is not entirely coextensive with, the existing trespassory torts.6
The new tort of purposeful infliction. To effectuate the umbrella
rule, the Restatement Third of Intentional Torts recently creates a
new cause of action for
55
“purposeful infliction of bodily harm.”7 The purposeful infliction

tort may be most useful when an actor purposefully causes
physical harm without the physical contact required for a battery
cause of action. For example, if a person intentionally snatches a
phone from the hand of a dying bedridden man who is calling 911,
causing his death, that action may well count as a battery.8 But if
the person instead snatches the phone away before the dying man
can even reach it, purposefully causing the man’s death without a
physical contact, that conduct would be actionable as purposeful
infliction.9
Scope of the new tort. While the purposeful infliction rule makes
sense in many contexts—if negligently caused physical harm is
presumptively tortious, intentionally caused physical harm seems
an even better candidate for liability—the purposeful infliction tort
raises some special difficulties. Negligence requires some
objectively unreasonable conduct. However, the purposeful
infliction tort can be applied quite broadly so that even an
innocuous act that happens to cause harm can become tortious
solely because of the actor’s bad intent. For example, according to
the Restatement Third, moving a chair out of an employee’s office
could be purposeful infliction if the defendant moved the chair with
the purpose of causing the employee to suffer back pain.10 Whether
courts will want to litigate the case of the moved chair to see if the
mover’s intent was nefarious or not is a matter for legal
development. Whether it makes sense to rest a cause of action on
the actor’s tortious intent raises questions akin to those that arise
in the tortious interference context. In tortious interference, some
courts hold a claimant need only plead improper purpose, yet
others require that improper purpose be coupled with an improper
act. As in tortious interference, some courts may elect to impose
additional restrictions on the purposeful infliction tort, such as
requiring an improper, perhaps negligent, act as well as an
improper purpose. In addition, the Restatement takes no position
on whether this new purposeful infliction tort should be a gap-filler
or available even when the plaintiff has other viable causes of
action.11 This is an issue to follow in courts in the coming years.
B. INTENT AND RELATED CONCEPTS
Non-tortious intent. Intent itself is a neutral word that does not
imply wrong. This is so first because intent by itself is never a tort
and second because many intents are perfectly honorable. Your
intent to pet your dog or paint your house is not a tortious intent; if
carried out, no tort is committed. Which intents are tortious are
determined by the rules of particular torts such as battery. (In the
case of battery, the relevant intent is to touch another person in a
way not consented to.)12
State of mind showing intent. What is the state of mind
required for an intent? The defendant has an intent to achieve a
specified result when either (1) the defendant has
56
a purpose to accomplish that result or (2) the defendant lacks

such a purpose but knows to a substantial certainty that his
actions will bring about the result.13
The purpose test. To illustrate the purpose clause, suppose the
defendant attempts to hit a target by firing a rifle from a great
distance. It may be unlikely that he can do so, but it is his purpose
to do so if he can. Under the first clause, he has intent to hit the
target because he has a purpose to do so. The intent is not
necessarily tortious or wrong; to see whether the defendant has
committed a tort will require other steps in proof and reasoning.
The illustration given merely shows the intent element in what
may or may not turn out to be a tort.
The substantial certainty test. To see the certainty clause in
operation, suppose that the defendant puts sleeping pills in the
food served by the cafeteria at a summer camp. His purpose is
limited: he knows X will eat the food and wishes to put X to sleep.
By the purpose clause, the defendant does not intend to put others
to sleep at all. However, if he knows that others will also be eating
the cafeteria food at the same time, he must know to a substantial
or virtual certainty that they, too, will be affected. Under the
certainty clause of the intent definition, the defendant intends to
affect others who eat the same cafeteria food at the same time.
Mere risk, however, even a very high risk, is not enough to show
substantial certainty.14
The focused viewpoint of substantial certainty. The substantial
certainty test is focused on the plaintiff (or a particular group of
plaintiffs) and on the source of the harm and a particular time and
place. It will not suffice to say that the defendant maintains a
dangerous condition on his land that, over a period of years, is
almost certain to cause injury to someone. That might be
negligence, but it is not an intent to harm or to commit any
trespassory tort.15
Deviations. Courts occasionally ignore the substantial certainty
test of intent, seemingly to obtain results that could better be
explained on other grounds. One case, for example, insisted that
smokers did not intend to touch the plaintiff with their second-
hand smoke, even though they allegedly knew their smoke was not
only touching the plaintiff but also causing her harm.16 Such a case
implicitly rejects the substantial certainty test, but it might better
be understood as establishing a privilege or insisting that a more
material touching is required to establish a battery.
Intent is specific. Intent is not a general state of mind. One has
a purpose to accomplish, or a substantial certainty of
accomplishing one or more specific objectives. The defendant might
intend to touch and also intend his touching to have harmful
57
effects. These are two different intents. Quite possibly one is

tortious and the other is not. Consequently, analysis of intent must
be quite specific.
Intent is subjective. Since intent is a state of mind, it is
necessarily subjective.17 That is, the relevant state of mind is that
of the person whose intent is in question. This differs from
negligence, which is judged by an objective standard. Thus a
defendant is negligent if he departs from the standard of care
expected of people generally, but he is not necessarily acting
intentionally merely because other people acting in like
circumstances would harbor an intent.
Evidence of intent is objective. Although the relevant intent is
subjective, the trier of fact does not have a mind reading machine
to determine that subjective intent. One’s subjective intent is
necessarily determined from external or objective evidence. If the
defendant pushes the plaintiff into a room, locks the door and
throws away the key, the trier of fact is entitled to infer that the
defendant intends to confine the plaintiff, at least for a time. So
evidence that the defendant intended any given act may be good
evidence that he also intended results that tend to follow such an
act.
Defining intent in context. What constitutes intent may vary
based on the context. Torts can define intent for the purpose of
common law actions differently than they do in the insurance
context18 or the context of workers’ compensation.19 The
Restatement of Intentional Torts to Persons specifically encourages
courts to consider the “specific policies and principles governing the
relevant context.”20 Having done so, tort doctrine and collateral
legal rules on intentional torts “might significantly differ.”21
Motive. A bad motive is occasionally important in determining
tort liability, especially in cases involving certain economic torts22
and claims for punitive damages.23 But the concept of intent is not
the same as the concept of motive. A defendant whose conduct is
intentional is not necessarily a defendant who has a bad motive or
who is conscious that he is committing a legal wrong.
The difference between intent and motive is illustrated by the
case of the physician who forces treatment on an unwilling patient.
He may act from the motive of good will and in the belief that his
treatment will be best for the patient; he might even believe that
he is right to force the treatment upon the patient. But neither his
good motive nor his erroneous belief that he is acting rightfully will
excuse his intended touching of the
58
patient against the patient’s will.24 Intent, not motive, is the

basis of liability for the torts discussed in this chapter.
Capacity: children and mentally disabled persons. In most
jurisdictions,25 neither infancy nor mental disability provides any
general immunity from tort liability.26 Both children27 and
mentally disabled persons28 may be held responsible for
intentional torts. The real question in intentional tort claims
against them is the same as in other suits, that is, whether they in
fact entertained the intent required to establish a particular tort.
Very small children or babies may lack the capacity to entertain an
intent, and perhaps some mentally disabled persons lack capacity
as well. If they have the requisite intent, however, they do not
escape liability because of their age or disability.
Intent and negligence distinguished. Intent and negligence are
different concepts. Negligence entails unreasonably risky conduct;
the emphasis is on risk as it would be perceived by a reasonable
person, not on the defendant’s purpose or on the certainty required
to show intent. The defendant may create risks of harm without
having either a purpose or a certainty that harm will result.29
Indeed, negligence does not require a state of mind at all but
focuses instead on outward conduct. Even if the defendant
recognizes the risk and deliberately decides to chance it without
having purpose or certainty required for intent, he is not liable for
an intentional tort, only for negligence.30
Intent and negligence as mutually exclusive? The traditional
thought was that any given act may be intentional or it may be
negligent, but it cannot be both. Intent and negligence have been
regarded as mutually exclusive grounds for liability.31 As the
saying goes, there is no such thing as a negligent battery, since
battery is defined to require an intentional touching without
consent not a negligent one.32 So under traditional conceptions,
there was no overlap between intentional and negligent torts.33
However, the Restatement Third has taken a different view.34
Taking an approach focused on principle and policy, the
Restatement counsels “it should not simply be
59
presumed that the intentional-tort characterization should

always preempt the negligence characterization.”35 Instead, courts
should carefully consider whether one cause of action should
preempt the other.
Categorizing conduct. In terms of intent and negligence, it is
sometimes difficult to discern whether a given set of conduct falls
in one category or another. The evidence offered in a case may
permit the trier to draw different inferences, so that some jurors
would conclude that a defendant acted intentionally, while others
would conclude that he acted only negligently. If the evidence
warrants either a finding that the defendant acted with
substantial certainty or that he took an unreasonable risk, the jury
might be permitted to find either negligence or intent.36 On the
other hand, a plaintiff may not generally convert an intentional
tort into a negligence claim, for example to escape a shorter statute
of limitations or to recover under an insurance policy.37
Courts often recognize a kind of third category of fault that is
distinguishable both from intent and from negligence. This
category is called recklessness or willful or wanton misconduct.38
Not surprisingly, reckless conduct resembles both intentional
conduct and negligence, so this category adds a degree of confusion
or uncertainty.
Elements. In civil cases, courts find conduct to be reckless,
willful or wanton when two elements concur. First, the conduct
must not only create an unreasonable risk of harm to others, it
must create a high degree of risk or a risk of very serious harm, or,
if a lesser risk or less probable risk, then one that is easily
avoided.39 Second, the defendant must be conscious of the risk and
proceed without concern for the safety of others.40 Driving while
voluntarily intoxicated and drag racing on the public highway are
examples.41 Sometimes authorities say that the defendant need not
actually be aware of the risk if it is obvious. However, obviousness
of the risk is probably not the test of recklessness. Instead,
obviousness is only evidence about the defendant’s probable state
60
of mind. If the risk is obvious enough, the trier can infer that
the defendant was in fact conscious of it,42 and if it is also a serious
risk of substantial harm, the trier can find recklessness, willful or
wanton misconduct, or “deliberate indifference.”43
Relation to intent and to negligence. Both elements of
recklessness—high risk and consciousness of the risk—bear some
relationship to intent, but both fall somewhat short of intent.
Conduct that imposes only a moderate risk of harm to others is
clearly at most only negligent conduct. As the risk becomes greater
it may tend to approach virtual certainty and thus become a
species of intent. In the case of recklessness, the risk is very high
(or very grave), but it is somewhat short of the certainty required
to justify a finding that the defendant was acting with intent to
cause harm.
Consciousness of risk or indifference to it also bears some
resemblance to intent. In fact, the defendant harbors one kind of
intent, namely, an intent to take a risk. An intent to take a risk,
however, is far short of an intent to inflict an actual harm or an
invasion of the plaintiff’s rights, so intentional risk-taking is not
itself the basis for finding an intentional tort.
Relevance of recklessness in determining liability. In the
overwhelming number of tort cases, the defendant’s liability turns
on intent or negligence, so that recklessness is irrelevant except
perhaps to show grounds for punitive damages. In a few instances,
however, recklessness is important when mere negligence is not a
sufficient ground for liability.44
C. BATTERY
Intent. The defendant is subject to liability for a simple battery
when he intentionally causes bodily contact45 to the plaintiff in a
way not justified by the
61
plaintiff’s apparent wishes or by a privilege,46 and the contact is

in fact either harmful or simply against the plaintiff’s will.47 An
accidental touching may count as negligence, but it is not a
battery.48
Harm or offense. Many batteries represent intentional harm, as
where one spouse beats or shoots another.49 Harm usually refers to
physical harm—that is some impairment, however small, of the
human body.50 An intent to cause such actual harm is a sufficient
intent, but not a necessary one.51 It is enough that the defendant
intends bodily contact that is “offensive,”52 which is to say a bodily
contact that does not appear acceptable to the plaintiff and that is
not permitted by a rule of law or a privilege. Any touching that
violates ordinary social usages may thus be a battery unless the
plaintiff has given signs that it is acceptable. So an aggressive
shove that causes no physical harm is a battery.53 Violence or ill
will is not required. A caress, for example, is a battery unless
circumstances indicate that it is acceptable.54 Even medical
treatment that involves a touching is a battery if the health care
provider has no reason to believe the treatment is consented to.55
Some opinions get results that are often in accord with these
statements, but say that the only intent required is intent to make
bodily contact.56
Direct vs. indirect harm. In early common law, battery claims
were pursued by an action for trespass to the person and thus fell
under the rule that trespass actions would lie only if the harm was
done directly.57 If the defendant dug a hole intending the plaintiff
to fall into it in the dark, that would not have been a direct harm
and hence the trespass claim would not lie. With the abolition of
the forms of action, the distinction is meaningless or confusing. In
any event, it has been subsumed by the intent rules: if the
defendant acts on an intention to inflict a harmful or offensive
bodily contact, and he succeeds, he is liable for the battery whether
the harm is direct or not.
Damages. Once a battery is established, the defendant becomes
liable for the harms resulting, including unintended ones. He may
intend only an offensive touching, but he is liable for any actual
harm that results. Recovery is permitted for trespassory torts
62
without proof of pecuniary loss or actual physical harm.58 The

defendant is of course liable for physical harms resulting from the
battery, but he is also liable for impermissible touchings that are
not physically harmful.
Policy. The law of battery, an outgrowth of the old trespass writ,
was originally conceived solely in terms of force and violence.59
Like much other early law, it served to substitute a legal recovery
for revenge and to discourage actual violence. Tort law today of
course shares those goals; but as the rules show, it adopts more
subtle ones as well. Battery today vindicates the plaintiff’s rights of
autonomy and self-determination, her right to decide for herself
how her body will be treated by others, and her right to exclude
their invasions as a matter of personal preference, whether
physical harm is done or not.60
§ 4.7 Harm or Offense Required to Establish
Simple Battery
The central core. The central core of the battery rules is simple.
Subject only to the most limited exception, the defendant must
respect the plaintiff’s apparent wishes to avoid intentional bodily
contact. Hostile, aggressive, or harmful touchings are batteries
because the plaintiff wishes to avoid them. But the plaintiff’s right
to avoid unwanted intentional contact does not depend upon the
defendant’s hostile intent or even upon the reasonableness of the
plaintiff’s wishes. A person is entitled to refuse well-intentioned
medical treatment61 as well as the bumptious grapplings of an
unwelcome swain.62 In a world full of uncontrollable events, all
persons are at least entitled to prohibit unwanted intentional
touchings of any kind.63
Formulating a rule: the Second Restatement’s “harmful or
offensive” test. How is this central policy to be formulated in a rule?
The Second Restatement attempted to convey the policy by saying
that the defendant is subject to liability for causing bodily contact
that is either (a) harmful or (b) “offensive.” The Restatement did
not use “offense” in the sense that a person might be huffy or
irritable. Rather, an offensive touching infringes a reasonable
sense of personal dignity.64 More broadly put, a touching is
“offensive” if it infringes upon the plaintiff’s actual and apparent
wishes to avoid it. Although liability may be imposed for harmful
attacks, liability does not depend upon harm65 or even upon
63
emotional distress66 to the plaintiff; it depends upon violating

the plaintiff’s right to decide for herself what touchings of her body
are acceptable.
Harm or offense in the Restatement Third. The Restatement
Third also bars conduct that causes “bodily harm” or “is
offensive.”67 As in the prior Restatement, “contact that offends a
reasonable sense of personal dignity” is barred.68 The Restatement
Third is more explicit that contact “highly offensive to the other’s
unusually sensitive sense of personal dignity” is also actionable if
the actor has a purpose to offend the other.69 However, the
Restatement Third specifies that courts should not impose liability
for an unusually sensitive sense of dignity if the tort liability would
“violate public policy” or be “unduly burdensome.”70 For example, if
a person refuses to be touched by a nurse because of the nurse’s
race, a court could decide that anti-discrimination policy renders
compliance with this unusual sensitivity unenforceable through
battery liability.
Plaintiff’s apparent consent as the central issue. The gist of the
battery action is that the plaintiff has been touched, intentionally,
in a way that she has not even apparently consented to and that is
not justified by some generally recognized privilege or defense.71
The same idea may apply when the defendant has consent to touch
but goes beyond the consent in some particular way. For instance,
the surgeon who has consent to remove one organ does not
necessarily have consent, even implicit consent, to remove
another.72
Plaintiff consent and defendant intent to harm or offend. What
counts as an apparent consent is an important topic considered
later. The central point to note here is that the plaintiff’s apparent
consent shows that the defendant is not intending to touch in an
offensive way and that no right of the plaintiff has been invaded by
permitted touchings, even if it turns out to be unintentionally
harmful.73
The case of social usage and conflicting rights. In one narrow
kind of case a defendant may escape liability for an intentional
touching even when he knows that the plaintiff wishes to avoid it.
A plaintiff who rides the subway may implicitly consent to a
certain amount of intentional jostling as other riders leave the car,
and if so, the touching would not transgress the plaintiff’s rights; in
the Restatement Second’s words, it would not be offensive.74
Suppose, however, the subway rider makes it plain to all
passengers that she must not be touched by others as they attempt
to exit the crowded car. Would
64
other riders be liable for a battery if they must push through

the throng to reach the exit? Presumably not. Not only are such
jostlings socially accepted, they are necessary to protect the rights
of others who must also live in an unpleasantly crowded world. The
plaintiff’s right to avoid bodily contact is important, but so is the
defendant’s right to take the subway and get to work. The plaintiff
cannot preempt the subway space for herself alone.75 It is more
straightforward, however, to deal with this kind of case by
recognizing that the defendants are privileged to make their exit
by reasonable means rather than by manipulating concepts of
consent.76
§ 4.8 Nature of Intent Required to Establish
Simple Battery
Intent to … Intent has been defined to include either a purpose
to effect some result or a substantial certainty that the result will
follow from the defendant’s actions.77 What results must the
defendant intend to establish a simple battery?
The Restatement Second’s formula. The Restatement Second’s
formula is that the defendant must intend a “harmful or offensive
contact.” An intent to touch in a way the defendant understands is
not consented to is sufficient. So is an actual intent to harm. The
question is whether the plaintiff shows intent by showing merely
an intent to touch that turned out to be offensive or harmful, or
whether she must show that the harm or offense was also
intended. On this point the Restatement and some of the cases are
ambiguous.78
Ambiguity illustrated. Suppose the defendant intends to touch
the plaintiff but he intends the touching to be friendly and
comforting, not either harmful or offensive. That is, he believes the
touching is consented to. In this state of mind, he hugs the
plaintiff, but the plaintiff is unexpectedly harmed by the hug or
revolted by it. Some authority phrases the rule in a way that
suggests the defendant will be liable merely because he intended a
bodily contact if it in fact caused harm or offense,79 the so-called
single intent rule. Other courts seem to think that the defendant
must intend not only a touching but
65
also must intend it to be harmful or offensive—offensive in the

sense that no permission has been given for it, even by
implication.80 The latter rule is sometimes called the dual intent
rule because it limits liability to cases in which the defendant
intends both touching and harm or offense.
The fault principle argument. The Second Restatement’s
formula is perhaps ambiguous, but it probably means intent to
harm or offend as well as an intent to touch is required. This is in
line with the fault principle and also with the freedom to act
encouraged by that principle.81 To see this, suppose that in the
illustrative example, the defendant is a wife who hugs her
husband, but the hug unexpectedly causes a bone spur to break off
and impinge upon a nerve in her husband’s spine. If the wife
intended neither harm nor any violation of the husband’s implicit
consent to friendly physical contact, the intent is not tortious or
faulty. Except under a general regime of strict liability that is
inconsistent with the fault principle, the physical contact alone
seems to furnish no ground for liability.
The strict liability arguments. One argument for prima facie
strict liability based on intent to contact without an intent to harm
or offend is rooted in some particular circumstances. Some
insensitive defendants may honestly believe that the plaintiff will
welcome their sexual touchings and some abusive defendants will
certainly claim so. Should a defendant who fondles strangers be
permitted to escape liability if the jury believes that he really
thought his attentions were welcome?
One answer is that the jury is free to and presumably would
reject such a preposterous claim. A second solution is more subtle.
Even if the jury believes that the defendant had no intent to offend,
it might find him to be negligent and liable on that ground if he
causes actual harm. A third solution is to impose strict liability,
holding all defendants liable for the offenses or harms resulting
from an intended touching, even if it was apparently consented to.
The best solution, however, may be to recognize that the plaintiff’s
apparent lack of consent must be judged objectively. If the plaintiff
says, in words or deeds, “Don’t touch me,” and the defendant
intentionally touches the plaintiff anyway, the defendant, not the
plaintiff, must bear the cost of the defendant’s foolish belief that no
means yes. These solutions do not, however, suggest that the wife
who hugs her husband should be liable for an unexpected harm.
Professor Simons, one of the Reporters of the Restatement
Third, has presented several vigorous arguments in favor of the
single intent rule—permitting liability without any culpable intent,
only the intent to touch another person.82 They are detailed and
complex but only two will be mentioned here. First, he has argued
that doctors are
66
liable for exceeding the scope of the patient’s consent even when
they intend neither harm nor offense, and that such liability shows
that an intent to touch suffices for liability if harm or offense
results in fact.83 However, the absence of apparent consent is itself
the marker of offense.84 The physician who knows he exceeds
consent has intent to “offend” in this sense and is appropriately
held liable. On the other hand, the physician should not be liable if
the consent expressed by the patient reasonably appears to
authorize the touching. To be sure, the physician is not saved by
intentions to do what is best for the patient if he knows that the
touching is not consented to, but strict liability of the physician for
apparently non-offensive acts is a different matter.
Professor Simons also argues that if intent to harm or offend is
required, the apparent consent defense is superfluous.85 That may
be true in most battery cases, but that is only to say that apparent
consent—as distinct from actual but unexpressed consent86—in
battery cases is really not an affirmative defense but a negation of
any intent to offend, as some torts teachers try to show students.
Comment. If the plaintiff’s consent is apparent, the defendant
lacks intent to offend and should not be prima facie liable unless
prima facie liability without fault is deemed desirable. There is
nothing faulty in the bare act of touching another human being.
The fault arises only when the touching exceeds any applicable
privilege and the apparent consent (often established by custom,
socially accepted practices, and other nonverbal behavior).
If single intent is adopted, and in the case in which the wife
hugs her husband with the unexpected result that, without fault,
she causes a broken bone,87 a court says that the husband has
made out a prima facie case for battery, the court will force
resolution of the case on an affirmative defense. In the affirmative
defense, the wife must prove that, by their course of affectionate
conduct, the husband consented to the touching. But to resolve the
case on the basis of such an affirmative defense, instead of
requiring allegations of intentional harm or offense in the
complaint,88 may require extended legal proceedings. If the
husband cannot assert in his complaint that a normal domestic
activity like his wife’s embrace was somehow unconsented to,
casting the issue as an affirmative defense seems expensive to the
system and needlessly costly to the wife. The single intent rule
would thus seem either to impose prima facie strict liability or
force the case into an overelaborate and costly “defense” or both.
Single intent in the Restatement Third. Pursuant to Professor
Simons’ arguments, the Restatement Third has embraced a single
intent requirement. Specifically the Restatement provides: “The
intent required for battery is the intent to cause a contact
67
with the person of another. The actor need not intend to cause
harm or offense to the other.”89 In many cases, the single intent
requirement will produce the same outcome as the dual intent
requirement.90 However, the single intent rule is more likely to
impose liability on young children and adults with mental
disabilities barring some additional limitation.91 It is also more
likely to make tortious, inoffensive physical contacts that produce
unexpected physical harm.92
Managing single intent. Because requiring only an intent to
contact without requiring any culpable intent to harm or offend can
sweep into the prima facie case for battery many completely
innocent contacts, such a requirement places more work on other
limitations such as apparent consent.93 It also renders the category
of battery actions larger and more diverse than it would otherwise
be. Accordingly, rules that make sense for some batteries may not
make sense for others. For instance, a court may bar comparative
fault as a defense to a battery in which the defendant intended to
harm the plaintiff, yet allow comparative fault when the defendant
intended only contact but not harm.94
§ 4.9 The Bodily Contact Required to Establish
Simple Battery
Material touching. The size of the object that touches the
plaintiff does not matter. The plaintiff is of course touched if she is
struck by a bullet, but she is also touched if she drinks poison put
in her cup by the defendant.95 On the other hand, odors, smokes, or
gases have been traditionally treated as intangibles, even though
they do have a physical presence.96 Whether a touching by second-
hand tobacco smoke would count as a battery under some
circumstances is perhaps uncertain.97 However, several decisions
have found a battery resulting from tobacco smoke, with the
qualification that the defendant must have a purpose to harm or
offend and is not liable merely for substantial certainty
touchings.98 A little authority supports a battery claim when the
defendant intentionally exposes the plaintiff to dangerous
radiation or industrial fumes.99
68
Extended personality. The plaintiff is also touched if the

defendant touches some intimate extension of the plaintiff’s
person,100 as when the defendant jerks a plate from the plaintiff’s
hand, even if the hand itself is not touched.101
Causing a touching by other objects or by other persons.
Touching is not limited to physical contact between the defendant’s
body and the plaintiff’s. The defendant who wears gloves to slap
the plaintiff is no less guilty of a battery than one who strikes the
plaintiff bare-handed. An unpermitted touching of clothes worn by
the plaintiff falls under the same rule.102 More than that, the
plaintiff is touched and a battery committed if the defendant
intentionally pulls the chair from under the plaintiff as she sits,
with the result that she falls to the ground.103 Finally, the
defendant may be responsible for a battery if he directly causes
other persons to effectuate or complete the harmful or offensive
bodily contact with the plaintiff.104
§ 4.10 Battery and Other Torts: Acts and
Omissions
Acts distinguished from involuntary motion and intent. Both
versions of the Restatement structure analysis of battery and other
trespassory torts by requiring an “act” of the defendant.105 An act
in the Restatement Second’s terminology is an external
manifestation of will, a voluntary contraction of muscles, nothing
more.106 The “voluntary-act requirement is a minimal one.”107
Involuntary muscle spasms, convulsions, bodily movements during
sleep are thus not acts. On the other hand, an instantaneous
response to emergency, as where the defendant grabs the plaintiff
to avoid falling, constitutes an act.108 The term “act” does not
equate with fault or intent. The defendant “acts” when he strikes
another even if he is prompted by insane impulses.109
Act distinguished from inaction. The term “act” is also used to
emphasize a distinction between affirmative deeds on the one hand
and omissions or passive behavior on the other. Battery normally
results from the defendant’s affirmative acts or deeds: the
defendant strikes the plaintiff or spits on him or poisons his drink.
Can a defendant be liable for a battery when the defendant does
nothing to stop another’s bodily contact with the plaintiff?
Analogies from negligence law suggest that the defendant who has
no
69
special relationship with the plaintiff or her attacker would not

be liable for a battery if he merely failed to prevent the attacker
from hitting the plaintiff.110
Duty to protect the plaintiff from others’ batteries? On the other
hand, the defendant might be under a duty to protect the plaintiff.
Employers, for example, are under a duty to protect employees
from sexual batteries (and other forms of sexual harassment). If an
employer knows that an employee is being sexually battered by
another employee, it is not implausible to say that the employer is
also guilty of a battery, though he has not committed any “act” and
in some instances the battery claim might be advantageous to the
employer.111 Similarly, a hospital is under a duty to protect
patients from attack, and a knowing failure to do so might be
thought of as a battery by inaction. In practice, however, courts are
likely to think of both kinds of claims as negligence claims turning
on reasonableness rather than battery claims turning upon
intent.112 The Restatement Third concurs. “One can imagine cases
in which battery or assault liability for an omission to rescue or
protect another seems defensible…. However, judicial support for
such liability is sparse.”113 That is not necessarily the plaintiff’s
loss, since the defendant’s liability insurance may cover negligence
but not battery. The upshot is that an affirmative act is at least
ordinarily if not invariably required to establish a battery. In
addition, liability may be imposed under other theories such as
vicarious liability for actions within the scope of employment.114
D. ASSAULT
Nature of the tort. Newspapers and even judges and lawyers
sometimes use the term assault to mean a battery.115 Technically,
assault is a quite different tort, although it often precedes a
battery. An assault is an act that is intended to and does place the
plaintiff in apprehension of an immediate unconsented-to touching
that would amount to a battery.116 The Restatement Third retains
the same basic concepts but swaps the term “apprehension” for the
more accurate term “anticipation.”117 The plaintiff’s subjective
recognition or anticipation that she is about to be touched in an
impermissible way is at the core of the assault claim. No actual
physical harm or even actual touching
70
is required to complete this tort.118 And if the plaintiff

anticipates that she is about to be battered, her assault claim is in
no way diminished by the fact that the battery was completed and
that she also has a claim for that.119 On the other hand, if the
plaintiff never anticipated that a battery was forthcoming, the
defendant may be liable for a battery but not an assault.120
Intent and transferred intent. As in other cases, intent may be
based either on the defendant’s purpose or on his substantial
certainty that a trespassory tort will occur. A mere risk that the
plaintiff will be touched or put in apprehension does not qualify as
substantial certainty and it forms no basis for liability based on
intent. However, under transferred intent, if a defendant intends a
battery but not assault, he may yet be liable for assault if the
plaintiff does in fact apprehend the imminent blow. In another
version of assault using the principle of transferred intent, the
defendant may be held liable if his misconduct is directed at a third
person but miscarries so that it is the plaintiff who apprehends the
immediate or “imminent” touching.121
Examples of simple assault. An example of an intended battery
that actually culminates only in an assault is the case of the
defendant who attempts to strike the plaintiff from behind. If the
plaintiff turns in time to see the blow about to be delivered and
escapes it, there is no battery since there is no touching. But if the
plaintiff anticipateded an imminent touching from the blow, the
defendant is liable for an assault.122 If the plaintiff is not aware of
the impending blow, there is no assault at all, although if the blow
is actually delivered there will be a battery.123
In some instances, the defendant’s whole purpose is to convince
the plaintiff that a battery is imminent even though the defendant
never intends to deliver the threatened blow. In the absence of a
privilege, the defendant is liable for assault in such cases as well,
so long as he intends to put the plaintiff in apprehension of a
battery. For example, the defendant may shoot a pistol at the
plaintiff with the intent to frighten but not to touch. Again, if the
plaintiff apprehends an imminent battery, the defendant is liable
for the assault.
Damages. Since assault is a tort that is historically derived from
the writ of trespass, the tort carries with it a right to a damages
award even when no physical harm is done.124
Apprehension vs. fear. Given the traditional use of the term
apprehension, courts often define assault in terms of the plaintiff’s
fear of an imminent touching, but they probably do not literally
mean fear, as much as a recognition that a touching is
71
threatened.125 The courageous plaintiff who fears nothing or is

sure he can avoid the threatened touch is entitled to recover for
assault if he is aware that the defendant is attempting to land a
blow or to shoot him.126
Anticipation: reasonableness, words alone. Many opinions have
asserted that the plaintiff’s apprehension must be reasonable or
well-founded,127 that the defendant must have the apparent
present ability to complete the battery,128 and that words alone,
without accompanying action, cannot count as an assault.129 These
rules are sometimes criticized as too restrictive.130 For example, in
one sense there is no such thing as a “words alone” case; all words
occur in a social context and that context may reinforce and add
substance to the verbal threat.131 The apparent reality of the
threat, not its form, is what counts. The Restatement Third adopts
a subjective standard for determining whether a person
anticipated imminent harmful or offensive contact unless the
“claim stems primarily from the actor’s words” or the contact
anticipated would not be legally defined as offensive.132
Imminence. Although the plaintiff need not suffer fear, she
must in fact conclude that the threatened battery is imminent,
meaning that it will occur without delay unless an intervening
force prevents it or the plaintiff is able to flee. Future danger,133 or
a threatening atmosphere without reason to expect some
immediate touching,134 in other words, is not enough. On the other
hand, the threat of imminent touching need not be explicit or
verbal. If an angry crowd of men block, rock, and beat on the
plaintiff’s car, the plaintiff may justly feel apprehension of a
battery even if none is expressly threatened.135 Where a defendant
“aggressively and rapidly advanced on the plaintiff with clenched
fists, piercing eyes, beet-red face, popping veins, and screaming
and
72
swearing at him,” backing plaintiff up against a wall, the

plaintiff’s belief that he was going to be struck is reasonable, even
where no blow was actually attempted.136
Conditional threats. The defendant cannot defeat the plaintiff’s
assault claim on the ground that he gave the plaintiff an
unprivileged alternative to the threatened battery. The robber who
points a gun and says “your money or your life” is guilty of an
assault because he has no right to take either.137 The rule is
different, however, if the defendant has a privilege to insist upon
the alternative. “Leave my property or I’ll carry you off myself”
may be a threat of battery that the defendant is entitled to make in
the protection of his property.138
Tort and crime. Assault may be a crime as well as a tort, but
criminal law definitions of assault sometimes emphasize the intent
to injure and the risk of escalating violence rather than the victim’s
apprehension of a battery,139 so criminal assault cases are not
necessarily sound authority in the tort setting. Unlike criminal law
in which victim awareness may be unimportant, tort law
emphasizes and demands the plaintiff’s awareness of the threat.
Assault and emotional distress. The law of assault represents a
narrow segment in the spectrum of emotional harms.140 Because of
its narrow definition, it is not a very important segment in itself.
Lawyers may thus find it more relevant to consider the broader
topic of emotional distress in Chapter 29. As that chapter shows,
claims that may fail as assault claims may succeed under the
rubric of some other tort that also protects interests in emotional
security. For instance, some forms of sexual harassment may fall
short of a battery or an assault but may be actionable as an
intentional infliction of emotional distress,141 or an invasion of
privacy,142 or as a violation of constitutional143 or statutory
rights.144 Under the Freedom of Access to Clinics Act,145 threats of
future harm to deter legally rightful abortions are actionable, even
though such threats would
73
not constitute assaults.146 Similarly, stalking, and the

harassment of victims by following, calling, and otherwise
pursuing them,147 may be addressed in criminal148 or civil
statutes.149
E. FALSE IMPRISONMENT
Elements of the tort. Courts protect personal freedom of
movement by imposing liability for false imprisonment. False
imprisonment in its simple form is established by proof that the
defendant intentionally150 confined151 or instigated152 the
confinement of the plaintiff. Confinement implies that the plaintiff
is constrained against her will.153 A third element, according to the
Restatement and some authority, is that the plaintiff must have
been aware of the confinement at the time or harmed by it.154
“False arrest.” False arrest is a term that describes the setting
for false imprisonment when it is committed by an officer or by one
who claims the power to make an arrest. Although false arrest is
not essentially different from false imprisonment,155 detention by
an officer or one acting under color of law may also amount to a
civil rights violation.156
Motive and duration. Bad motive or hostility to the plaintiff is
not required to establish false imprisonment; an intent to confine
plus actual confinement is sufficient.157 Nor need the plaintiff
show confinement for a substantial length of time.
74
Unless the defendant is privileged, a confinement for “any

appreciable time, however short” is actionable.158 However, the
role of privilege is quite significant in false imprisonment cases,
and where the defendant claims a privilege to detain the plaintiff,
both his motive in detaining and the duration of the detention may
become important in determining whether the defendant exceeded
his privilege.159
Confinement. Confinement means that the plaintiff is not
permitted to go beyond boundaries fixed by the defendant. The
plaintiff whose road is obstructed is not confined and neither is the
plaintiff who is excluded from a place of public accommodation,
although in both instances the plaintiff may have some other kind
of tort claim.160 One court has held that confinement within the
country of Taiwan is not confinement for false imprisonment
purposes.161 On the other hand, the boundaries of the plaintiff’s
confinement may be much less precise than four walls. The
plaintiff who is detained on the street by a gang may be confined
even if the gang does not specify the exact limits of her free
movement. One is not confined at all if there is a reasonable means
of egress.162
Examples of false imprisonment. False imprisonment is effected
in many ways and in diverse social settings, but not surprisingly it
most frequently involves a relatively powerful defendant. A
storekeeper detains a customer or employee suspected of theft,
sometimes by physical restraint and sometimes by threat;163 a
hospital, nursing home, or substance abuse center holds a patient
against her will;164 a driver refuses to stop his car so a passenger
can get out;165 a police officer lacking a warrant and lacking
probable cause nevertheless detains or jails an individual.166 In all
these cases the main question in the first place is whether the
plaintiff was in fact confined against her will and in the second
whether the defendant was privileged to detain her.
Methods of confinement—physical restraint of person or
property. The most obvious kind of confinement is that imposed by
a physical barrier or physical force. For example, the defendant
may lock the plaintiff in a room,167 or physically restrain the
plaintiff from
75
moving.168 Similarly, the plaintiff might be confined by taking

her clothes,169 blocking her automobile170 or taking her keys when
use of the vehicle furnished the only reasonable means of egress171
or by detaining her property so that she herself is effectively
confined if she is to protect or retrieve it.172
Submission to legal authority. Short of such physical restraints,
an officer may effectuate a confinement merely by asserting
authority to do so. If the plaintiff submits to a law enforcement
officer’s assertion of authority to detain her, she has been confined,
and unless the officer enjoys a privilege or an immunity, he is
liable for false arrest.173 But there may be a factual question for
the jury about whether the plaintiff submitted to authority or
merely acquiesced in the detention to clear her name or to provide
assistance.174 With private persons who do not themselves claim to
act under color of law, an assertion that the plaintiff must remain
because police are being called is at least a factor to determining
whether the plaintiff is confined.175
Threats and duress. A number of cases involve confinement
effectuated by conduct that expresses or implies a threat that the
plaintiff will be restrained or subjected to an offensive touching if
she attempts to leave.176 Intimidation in an isolated or coercive
environment may effect a confinement in some instances.177
Threats of actual bodily harm are not required but they are of
course sufficient.178 Threats of harm to the plaintiff’s property or to
another person may have the effect of restraining the plaintiff.179
But of course a threat to do what the defendant is privileged to do,
to fire an at-will employee if she leaves work, is not an actionable
confinement.180 When a threat, express
76
or implied, is the basis for claiming confinement, the plaintiff
must show, as in assault cases, that there is a reason to believe the
threat can be carried out.181
Implicit threats effecting a confinement. Sometimes plaintiffs
feel implicitly threatened when the defendant has made no overt
threat at all. One such case occurs when a retailer’s manager or
security guards invite a customer or employee to a back room for a
discussion of suspected theft. If the customer or employee goes
along to clear matters up and not as the result of any express or
implied threat, there has been no confinement against the
customer’s will and no false imprisonment.182 If the customer
wishes to leave but does not attempt to do so for fear that she will
be restrained or otherwise harmed if she does, she must
demonstrate at least an implicit threat to prevent her exit.
Evidentiary detail matters greatly in presenting this kind of
claim. In one case183 the plaintiff, an 18-year-old employee, was
taken to an “office” that consisted of a windowless room with bare
light bulbs. It had one door only and any exit required passage
through two other rooms. The employee was confronted with
several persons who insisted that she admit to a kind of theft and
make immediate restitution in cash. Their voices, she said, were
not soft. She made no effort to leave and testified that she believed
she would not be permitted to do so. In this and similar cases184
courts have held that the evidence sufficed to permit the jury to
infer that the plaintiff was confined by implicit threats found in the
circumstances.
A threat may be implied in the fact that the plaintiff is isolated
and outnumbered,185 confronted by figures of authority or power,
or subjected to hostility and verbal abuse. Other evidence of a
threat might include the relative ages, independence, education,
and power of the parties. A ten-year-old might feel intimidated
when a 28-year-old lawyer would not.186 When such factors do not
weigh in favor of the plaintiff, however, there is no confinement
merely because the defendant asserts that the plaintiff must
stay,187 much less because the defendant requests the plaintiff’s
assistance.188
77
Undue influence: affecting the plaintiff’s will. Conceivably, the

concept of confinement could be expanded to permit liability not
only when the plaintiff is physically restrained or threatened but
also when the defendant’s conduct destroys the capacity of the
plaintiff to exert her own will. For instance, a nursing home
patient may lose her ability for independent action when she is
removed from friends and social support and made dependent on
the staff, so that she submits to their assertion of authority to
confine her. It has been argued in such cases that the assertion of
authority against the vulnerable patient should itself count as false
imprisonment or at least that little more should be required.189
When the defendant systematically uses techniques calculated to
destroy the plaintiff’s ability to act as an independent human being
and then asserts that the plaintiff may not leave, the claim for
false imprisonment becomes almost compelling.190 This kind of
issue has arisen when a religious group isolates the plaintiff and
subjects her to sleep deprivation and other techniques that critics
call brainwashing.191
The ordinary false imprisonment case is one in which the
defendant has acted in some affirmative way to effect the plaintiff’s
confinement, directly or indirectly. If the plaintiff is confined, but
not as a result of the defendant’s act, does the defendant ever owe
a duty to assist in the plaintiff’s release?
Custodians. Jailers, at least, owe a duty to release a prisoner
when her sentence is up,192 and no doubt analogous rules apply to
other custodians such as psychiatric hospitals to which a person
may be committed for a limited period only.193 Similarly, once a
custodian knows or should know that a person was arrested under
a mistake of identity, the custodian is under a duty to release and
liable for failure to do so.194
Promise to release. A defendant who induces a person to accept
confinement in reliance on a promise or implicit promise to end the
confinement on demand may be obliged to take affirmative action
to effect the release when it is demanded. In one well-known
case195 the defendant induced the plaintiff to board his yacht on
the promise that he would release her at any time she desired. But
while the yacht was anchored offshore, the defendant refused to
provide a boat to shore demanded by the plaintiff. The court found
a false imprisonment on the basis of the promise or implicit
promise that a boat
78
would be made available. In a similar vein, automobile drivers

might be expected to make reasonable stops to permit passengers
to alight.196
Defendant innocently causing imprisonment. Limited authority
suggests that the defendant who innocently or under a privilege
causes a confinement of the plaintiff has a duty to release the
plaintiff or to inform him of an exit he could not otherwise locate
once the privilege terminates and release becomes feasible.197
Relationship between parties. Perhaps some special
relationships between plaintiff and defendant would warrant an
extension of the affirmative duty to others,198 but there seem to be
few cases.199
Negligence. A defendant who negligently but not intentionally
confines the plaintiff is not liable for the intentional tort of false
imprisonment, but he may be liable for the tort usually called
negligence if all the elements of that tort are proved. However,
negligence is not a dignitary tort; it only redresses claims for actual
damages. Thus a plaintiff who is negligently but not intentionally
confined but who suffers no harms as a result, would have no cause
of action.
Civil rights. The common law action for false imprisonment
does not stand alone. Confinement imposed by state officials is
often privileged, but when it is not, an improperly confined person
may also have a federal civil rights claim.200
Malicious prosecution. When the confinement takes place as a
result of legal process such as a warrant for arrest, the plaintiff
will seldom have an actionable claim for false imprisonment, since
the legal process ordinarily furnishes a privilege or defense. If the
legal proceeding against the plaintiff was itself brought without
probable cause and for bad motives, the plaintiff may have a claim
for malicious prosecution rather than false imprisonment. The
difference, aside from damages measures and potential
immunities,201 is that the malicious prosecution plaintiff must
affirmatively prove that the defendant prosecuted without probable
cause to do so and prosecuted in bad faith.202
Emotional harm claims. False imprisonment is a direct
interference with the person and thus a trespassory tort like the
others in this chapter. But its effect is not merely to redress
physical or pecuniary harms. In most instances, recovery for false
imprisonment redresses a dignitary or intangible interest, a
species of emotional distress or insult that one feels at the loss of
freedom and the subjugation to the will of another. False
imprisonment is thus as much part of the universe of emotional
harm as it is part of the universe of potential violence associated
with trespassory torts. As a practical matter,
79
lawyers considering a false imprisonment suit may also

consider asserting not only claims for malicious prosecution, civil
rights, and invasion of privacy, but also claims for emotional
harm.203
F. EXTENDED LIABILITY AND DAMAGES
Extending liability beyond simple trespassory torts. Courts tend
to hold an intentional wrongdoer responsible for an extensive
range of consequences, including consequences the wrongdoer
never intended, at least in the case of trespassory torts to the
person. At least three levels of this extended liability can be
demonstrated by examples:
(1) Offense intended with harm resulting or vice-versa.
Defendant intends to touch the plaintiff in an offensive way,
but he intends no harm. The touching actually causes harm
to the plaintiff. The defendant is liable for the unintended
harm as well as any intended offense.204 For example, the
defendant kisses the plaintiff against her will, but intends
no physical harm. In fact, however, the plaintiff suffers an
immediate allergic reaction to the defendant’s touch. The
defendant is liable for the harm as well as for the intended
offense. The same principle works to impose liability if the
defendant intends a harmful touching but succeeds only in
imposing an offensive one.205
(2) Tortious conduct directed at A with resulting
invasion of B’s rights. Defendant hurls a stone, intending a
harmful battery to A; the stone misses A but strikes B.
Defendant is liable for the harm to B although he never
intended to touch B at all.206 The idea might also be applied
if the defendant attempts to put A in apprehension of a
battery but puts B in apprehension instead,207 or if
defendant intends to imprison A but by mistake or
misadventure imprisons B instead.208
(3) One tort intended with another tort resulting.
Defendant fires a pistol intending to put A in apprehension
of an immediate and unconsented-to bodily touching but
intending no actual touching. Without defendant’s fault, the
80
bullet actually strikes A. Defendant is liable to A for

battery although he never intended a battery at all.209
Combining the rules. The rules may be combined. For example,
if defendant intends to commit a mere assault on A, but actual
touching results to B, the defendant is liable to B for the
battery.210 It has been suggested that the doctrine could apply as
between any two trespassory torts, including, perhaps, property
torts as well as personal torts.211 The Restatement Third applies
the rule only to the torts of battery, assault, false imprisonment
and purposeful infliction.212
Expressing the principle. The Restatement Second recognized
these rules but fragmented the principle of extended liability by
building extended liability into the definition of each separate
tort.213 The Restatement Third addresses extended liability in a
single provision.214 Traditional discussion and the Restatement
Third express the extended liability doctrine as a result of
“transferred intent:” the defendant’s intent to harm A is
transferred to B, for example. The “transferred” intent expression
is merely a metaphor. It may be more accurate to state the rule as
an extended liability rule by saying that the defendant, who acts in
such a way that the intended injury would be actionable, is liable
for all direct consequences even though they are not intended.
Non-tortious or privileged intent. The formulation just
suggested makes it clear that the extended liability doctrine
properly applies only when the defendant’s act would have been a
tort if carried out as intended. The defendant who fires a pistol in
target practice, intending to hit his own target, has no tortious
intent at all. If the bullet strikes the plaintiff instead of the target,
then quite possibly the evidence will show that the defendant was
negligent, but he has not committed a battery. In the same way,
the defendant must not be held liable if his conduct was protected
by a privilege and the plaintiff is injured without fault. For
example, the defendant may act intentionally in justified self-
defense; if his act of self-defense causes injury to a bystander, there
is no reason to impose liability unless the defendant was
negligent.215
The rules of extended liability may reflect criminal law doctrine
carried over into tort law. Liability for miscarried criminal activity
may seem entirely appropriate, since from the state’s point of view,
the defendant’s act justifies punishment whether the harm is done
to A or to B. The Restatement finds the concept consistent with the
policy of
81
holding “intentional tortfeasors responsible for a wider range of

consequences than negligent tortfeasors.”216 Skeptics might argue,
however, that the same justification does not apply when it comes
to tort liability.
Consider the case in which the defendant intends a battery to A
but causes a battery to B instead. Given that the defendant
intended no touching of B, one possibility is that the defendant was
nonetheless negligent toward B. If that is the case, the argument
against extended liability says that the defendant should be liable
to B under the rules for negligence, but not under the rules for
battery, since he never intended to batter B. The difference
between the two forms of tort liability can be enormous, so the
argument is not merely a formal distinction. For example, the
defendant might take bankruptcy to escape ultimate responsibility
for his negligent torts, but may not be permitted to do so in the
case of certain intentional torts.217 Or a battery claim may be
barred by the statute of limitations where a negligence claim is
not.218
A second possibility in this situation is that the defendant was
not negligent towards B; that is, B’s presence was unknown and
not foreseeable, so a stone hurled at A did not create any
recognizable risk to B. In that case, the injury to B is pure accident,
and one opposed to the extended liability principle would be
compelled to say that B could not recover at all, since, as to him,
the defendant intended no tort of any kind and was not negligent.
If these positions against extended liability are plausible, it is
because of the broader idea that if tort liability is justly based on
intent rather than on strict responsibility, then that liability
should not be more extensive than the wrongful intent or the moral
fault of the defendant.219 It is not so clear, however, that the
defendant who is held liable for harm to B when he intended only
harm to A is being held liable for harms beyond the range of his
fault. If his fault lies in his intent and his act rather than in
identification of a particular victim, then liability for the intent and
the act seems perfectly appropriate even if the particular victim
was not the intended one.
Extended liability may be harder to justify in some other kinds
of cases. A battery with intent to contact but not harm or offend
may be very different than a battery with an intent to harm.
Similarly, one might think there really is a significant moral
difference between a defendant’s intention to put the plaintiff in
apprehension of a battery and the defendant’s intention to
accomplish the battery itself. But even here, the argument against
extended liability turns on how you conceive the basis for liability
in the first place. If the real basis is intended interference with the
plaintiff’s autonomy with respect to her own body, then the
defendant who batters when he means to assault is properly held
liable because the core wrong is the same in either case, namely an
infringement of the plaintiff’s autonomy. The same can be said
with respect to the harm-offense dichotomy.
In addition, it can be said that an intentional aggressor should
bear the risk that his aggression will lead to unintended injury or
that the aggressor should be subjected
82
to appropriate incentives to deter the aggression.220 Ironically,
sometimes the transferred intent rule advantages the defendant,
as where the claim is barred by a shorter statute of limitations
because it is classified as an intentional tort.
§ 4.20 Damages for Trespassory Torts to the
Person
Physical harm: pecuniary losses. Damages awards usually aim
to compensate the plaintiff for the losses resulting from the tort.
Rules for compensation of physical harms are the same whether
the harm results from a trespassory tort or from ordinary
negligence. The plaintiff is entitled, for example, to recover for
wage loss and reasonable medical expenses, if any, resulting from a
battery, assault, or false imprisonment.221
Physical harm: pain, distress, emotional harm. Victims who
sustain physical harm are always entitled to recover not only for
the consequent pecuniary losses but also for any pain and suffering
resulting from that physical harm. In this context, pain and
suffering includes mental or emotional suffering, so the plaintiff
can also recover for any proven mental distress or emotional
harm.222 Victims are not limited to a recovery for some standard
amount of suffering. If they suffer more than most people, they are
nevertheless entitled to recover for the suffering they actually
undergo; the defendant, it is said, takes his victims as he finds
them, with any special vulnerabilities they may have.223
Dignitary harm without physical harm. When the trespassory
tort causes no physical harm, the traditional tort rule is that the
plaintiff can nevertheless recover substantial as distinct from
nominal damages. The idea is loosely linked to the idea of mental
distress, but no actual proof of mental distress is required. The
invasion of the plaintiff’s rights is regarded as a harm in itself and
subject to an award of damages. If the plaintiff suffers emotional
distress as a result of any of these torts, even without physical
harm, she is entitled to recover for that emotional distress as a
separate element of damages.224
Under these rules, the plaintiff who is falsely imprisoned may
recover substantial damages even if she suffers neither physical
harm nor loss of wages and even if she does not testify to any kind
of distress.225 The circumstances of the imprisonment and its
duration will of course affect the amount of damages the trier will
be willing to award.226
83
An offensive battery gets similar treatment, so that damages

may be awarded without any separate proof of mental distress
aside from a preference not to be touched by the defendant.227
Even beneficial touchings such as medical procedures may warrant
damages if they are batteries, although the benefit is no doubt to
be considered in determining the appropriate amount of the
award.228 The case of assault is treated in the same way.229
Punitive damages. In addition to compensatory damages, most
states permit the plaintiff to recover an additional sum as punitive
damages when the defendant’s conduct and state of mind are
especially odious, usually where he acts with malice or oppression,
or at least with recklessness. Intentional torts are often candidates
for punitive damages where the defendant intends actual harm or
serious offense.230 Punitive damages may be awarded in quite
substantial sums, but there are constitutional standards to be met
and some states now impose limitations on the amount of punitive
damages.231
Intentional infliction of emotional distress (or mental distress)
describes a separate but nontrespassory tort dealt with in Chapter
29. It also describes a possible motive for some intentional
trespassory torts. It is worth mentioning here mainly because
certain comparisons and contrasts are useful.
The tort was recognized by the Restatement around the middle
of the 20th century232 and courts have widely accepted the
Restatement’s formulation of the tort. Under this formulation, the
defendant’s conduct must be (1) extreme and outrageous, (2) based
on an intent to cause severe emotional harm or on a reckless
disregard of such harm, and (3) in fact a cause of severe emotional
harm.233 Special rules add a recovery for interference with dead
bodies234 and for gross insults by common carriers and utilities.235
84
To the three elements in the Restatement formulation, some

courts are beginning to add a requirement that (4) the distress
suffered must be of the kind people in general would suffer and not
merely an idiosyncratic reaction.236 On the other hand, there is no
requirement of physical injury resulting from the distress, since
the outrageousness of the defendant’s conduct is a good guarantee
that the emotional harm is real.237
Threats of future harm, if they are serious enough, may count
as intentional infliction of emotional distress for which the plaintiff
can recover, even though they would not threaten the immediate
touching required to show an assault.238 On the other hand,
doctrines peculiar to trespassory torts have no application. The
defendant is not liable under the extended liability or transferred
intent rule for emotional distress,239 nor is he subject to liability
for damages without proof of harm.
When the defendant causes emotional distress by inflicting an
unconsented-to and unjustified touching, or by inflicting any
trespassory tort, the plaintiff can claim emotional distress damages
resulting from that tort, without proving the elements of tort called
intentional infliction of emotional distress.240 Some courts permit
the plaintiff to sue for battery or other trespassory tort and also for
intentional infliction of emotional distress, raising the possibility
that a defense to one of the claims will not defeat the other.241
________________________________
1 Restatement Third of Torts (Intentional Torts to Persons) Scope
note (Tentative Draft No. 1, Apr 8, 2015).
2 Id.
3 Hudgens v. Prosper, Inc., 243 P.3d 1275 (Utah 2010).
4 Lickteig v. Kolar, 782 N.W.2d 810 (Minn. 2010) (when a
jurisdiction has enacted a special statute of limitations for “sexual
assault,” that statute governs, however the underlying cause of action is
not a new tort of sexual assault but rather battery, assault, and other
torts).
5 Restatement Third of Torts (Liability for Physical Harm) § 5
(2005).
6 See Kenneth W. Simons, A Restatement (Third) of Intentional
Torts?, 48 Ariz. L. Rev. 1063–64 (2006) (“this claim, that the umbrella
concept [of the Restatement Third] literally encompasses certain other
torts, is false or at least misleading”); Ellen Bublick, A Restatement
(Third) of Torts: Liability for Intentional Harm to Persons—Thoughts, 44
Wake Forest L. Rev. 1335 (2009) (examining ways in which the
Restatement’s umbrella rule is both broader and narrower than the
existing trespassory torts).
7 Restatement Third of Torts (Intentional Torts to Persons) §104
(Tentative Draft No. 1, Apr 8, 2015).
8 Id. § 101 illus. 1.
9 Id. § 104 illus. 7.
10 Id. § 104 illus. 3.
11 Id. § 104 rptr. note.
12 Yoder v. Cotton, 276 Neb. 954, 758 N.W.2d 630, 632 (2008) (“The
tort of battery requires actual infliction of unconsented injury upon or
unconsented contact with another”).
13 Restatement Third of Torts (Liability for Physical Harm) § 1
(2005); Curtis v. Porter, 784 A.2d 18, 23 (Me. 2001) (“a person acts
intentionally if he subjectively wants or subjectively foresees that harm to
another will almost certainly result from his actions”); Frey v. Kouf, 484
N.W.2d 864 (S.D. 1992); Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091
(1955); Restatement Second of Torts § 8A (1965).
14 See Eddy v. Virgin Islands Water & Power Auth., 369 F.3d 227 (3d
Cir. 2004); Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366, 371, 823
A.2d 769, 772 (2003) (deliberate risk falls short of intent to harm with
substantial certainty).
15 Restatement Third of Torts (Liability for Physical Harm) § 1 cmt.
e (2005). Cf. Brown v. Diversified Hospitality Group, Inc., 600 So.2d 902,
906 (La. Ct. App. 1992) (deliberate decision to use inadequate staff
increased the risk of robbery and thus of injury to the plaintiff-employee
but this is not substantial certainty); but cf. Bradley v. American Smelting
& Refining Co., 104 Wash.2d 677, 683, 709 P.2d 782, 786 (1985) (operator
of copper smelter had substantial certainty intent that the law of gravity
would visit known microscopic particles in its gases “upon someone,
somewhere”).
16 Pechan v. Dynapro, Inc., 622 N.E.2d 108 (Ill. App. Ct. 1993).
cmt. a (Tentative Draft No. 1, Apr 8, 2015).
18 For example, in the insurance context, courts interpreting an
intentional act exclusion may not employ the substantial certainty test.
See Allstate Ins. v. Campbell, 942 N.E.2d 1090 (Ohio 2010).
19 Some cases alter the rules of intent in order to avoid the exclusive
remedy provisions of workers’ compensation statutes and to permit
recovery for “intentional” torts. See § 36.5.
note 2 Introduction (Tentative Draft No. 1, Apr 8, 2015).
21 Id.
22 As in the case of interference with business opportunity without
physical threat or harm. See Chapter 42.
23 See § 34.4.
24 Shuler v. Garrett, 743 F.3d 170 (6th Cir. 2014) (patient was given
heparin injections despite her objections; battery claim stated). The
prankster cases rest on a similar principle. If the prankster’s conduct
otherwise amounts to a tort and is not consented to, his jocular motives
will not assist him. See Fuerschbach v. Southwest Airlines Co., 439 F.3d
1197 (10th Cir. 2006) (arrest as a friendly joke).
25 A few jurisdictions protect certain minors. See Horton v. Hinely,
261 Ga. 863, 413 S.E.2d 199 (1992) (nine-year-old boys allegedly set fire to
a seven-year-old; minors under 13 were immune).
26 Restatement Third of Torts (Liability for Physical and Emotional
Harm) § 10 (infants) & § 11 (mentally disabled persons) (2012).
27 Farm Bureau Mut. Ins. Co. of Ark. v. Henley, 275 Ark. 122, 628
S.W.2d 301 (1982); Bailey v. C.S., 12 S.W.3d 159 (Tex. App. 2000) (4-year-
old hit babysitter in the throat, crushing larynx).
28 Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468 (1988); Williams
v. Kearbey, 13 Kan.App.2d 564, 775 P.2d 670 (1989).
29 E.g., Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972); Frey v. Kouf,
484 N.W.2d 864 (S.D. 1992).
30 Thus where a defendant does not know he was infected with HIV
but infects his wife, he may not be liable for battery; if he should have
known of his infection, he may be liable for negligence, but not for battery.
Endres v. Endres, 968 A.2d 336, 338 (Vt. 2008) (affirming summary
judgment for defendant because no evidence suggested he either knew or
should have known).
31 Dormu v. District of Columbia, 795 F.Supp.2d 7, 30 (D.D.C. 2011).
32 See District of Columbia v. Chinn, 839 A.2d 701 (D.D.C. 2003).
33 American Nat’l Fire Ins. Co. v. Schuss, 221 Conn. 768, 607 A.2d
418 (1992). Statutes on particular topics may blur negligence and intent.
See Central Pathology Serv. Med. Clinic, Inc. v. Superior Court, 3 Cal.4th
181, 10 Cal. Rptr. 208, 832 P.2d 924 (1992).
note 2 Introduction (Tentative Draft No. 1, Apr 8, 2015).
35 Id.
36 In spite of what may be broader language, this may be the idea
behind Ghassemieh v. Scafer, 52 Md.App. 31, 447 A.2d 84 (1982).
37 Baska v. Scherzer, 283 Kan. 750, 156 P.3d 617, 627 (2007) but cf.
Brown v. Robishaw, 282 Conn. 628, 922 A.2d 1086 (2007).
38 Courts often attempt to distinguish between wanton and reckless
conduct and even between willful and wanton. See, e.g., Anderson v.
Massillon, 983 N.E.2d 266, 273 (Ohio 2012) (“Willful misconduct implies
an intentional deviation from a clear duty or from a definite rule of
conduct, a deliberate purpose not to discharge some duty necessary to
safety, or purposefully doing wrongful acts with knowledge or appreciation
of the likelihood of resulting injury. Wanton misconduct is the failure to
exercise any care toward those to whom a duty of care is owed in
circumstances in which there is a great possibility that harm will result.
Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than
negligent conduct.” (internal citations omitted)). However well the
distinctions can be mapped in the mind, pointing them out on the ground
is almost impossible and in any event serves no purpose. As the
Connecticut Supreme Court said: “While we have attempted to draw
definitional distinctions between the terms willful, wanton or reckless, in
practice the three terms have been treated as meaning the same thing.”
Dubay v. Irish, 542 A.2d 711, 719 (Conn. 1988).
39 See Restatement Third of Torts (Liability for Physical Harm) § 2
cmt. e (2005).
40 Blakely v. Austin-Weston Ctr. for Cosmetic Surgery LLC, 348
F.Supp.2d 673, 679 (E.D. Va. 2004). The Restatement Third of Torts
(Liability for Physical Harm) § 2 cmt. a (2005) says “When a person’s
conduct creates a known risk that can be reduced by relatively modest
precautions, to state that the person displays a reckless disregard for risk
is equivalent to stating that the person’s conduct is reckless.”
41 Booker, Inc. v. Morrill, 639 N.E.2d 358, 361 (Ind. Ct. App. 1994)
(intoxicated driving is wanton misconduct); Lewis v. Miller, 374 Pa.Super.
515, 521, 543 A.2d 590, 592 (1988) (drinking and drag racing).
42 See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994).
43 The deliberate indifference standard used in certain civil rights
cases is congruent with the definition of recklessness given in this book.
See Farmer v. Brennen, id.
44 Examples: (1) Some statutes make parents liable (usually in
limited amounts) for certain reckless or malicious acts of their children,
but in the absence of an agency relationship, not for merely negligent acts.
E.g., Conn. Gen. Stat. Ann. § 52–572 (West 2009). See Walker v. Kelly, 314
A.2d 785 (Conn. Cir. Ct. 1973). (2) Guest statutes, now almost entirely
obsolete in American law, protected automobile drivers from liability to
their passengers for ordinary negligence but held them liable for some
higher degree of fault such as wanton or reckless misconduct. E.g., Ala.
Code § 32–1–2 (2009). (3) The common law tort of intentional infliction of
emotional distress requires either intent or recklessness on the
defendant’s part. See Chapter 29.5. (4) Some common law rules for the
liability of landowners to visitors on the land impose liability under
standards similar to a recklessness standard. See Chapter 20. (5) Some
civil rights liabilities are imposed only in cases of deliberate indifference,
which appears to be a species of recklessness or wanton misconduct. (6)
Contributory negligence of a plaintiff was no defense if the defendant was
guilty of wanton misconduct. See §§ 16.7, 17.4. (7) In some states,
statutory damages caps on non-economic damages (see § 34.7) do not apply
if the defendant has engaged in willful or reckless misconduct. See Carrillo
v. Boise Tire Co., Inc., 152 Idaho 741, 751, 274 P.3d 1256, 1266 (2012)
(applying Idaho Code § 6–1603(4), holding that plaintiffs adequately
pleaded reckless misconduct against defendant tire service that allegedly
rotated tires improperly, resulting in death of passenger). (8) Some state
governmental immunity statutes (see Chapter 22) provide a political
subdivision or its employees with a complete defense to a negligence case,
but remove that immunity if the acts are committed in a wanton or
reckless manner. See Anderson v. Massillon, 983 N.E.2d 266, 273–74
(Ohio 2012) (applying Ohio Rev. Code § 2744.02, holding that the terms
“willful,” “wanton” and “reckless” are not interchangeable and describe
different and distinct degrees of culpability).
45 Occasionally courts speak of bodily harm, not merely bodily
contact, as in Vandervelden v. Victoria, 177 Wis.2d 243, 249, 502 N.W.2d
276, 278 (Ct. App. 1993). This implies a rejection of the offensive battery,
but sometimes “bodily harm” is merely loose language and not intended to
be such a rejection.
46 As to privileges, see Chapters 7 and 8. Even when the defendant is
privileged to touch the plaintiff, as where the defendant is privileged to
make a lawful arrest, the touching may exceed the privilege because it is
excessively forceful or unnecessary. Jackson v. District of Columbia, 412
A.2d 948, 955 (D.C. 1980).
47 Compare Restatement Third of Torts (Intentional Torts to
Persons) §101 (Tentative Draft No. 1, Apr 8, 2015), with Restatement
Second of Torts § 13 (1965). See Marchbanks v. Borum, 806 So.2d 278, 288
(Miss. Ct. App. 2001) (“One commits a battery by the very touching of
another without his consent. Mississippi adheres to the basic belief that a
patient is ‘master of his/her own body.’ ” (emphasis added)).
48 Janelsins v. Button, 102 Md.App. 30, 648 A.2d 1039, 1045 (1994).
Under traditional rules, there is no such thing as a negligent battery.
49 Cain v. McKinnon, 552 So.2d 91 (Miss. 1989); Noble v. Noble, 761
P.2d 1369 (Utah 1988).
50 See Restatement Third of Torts (Liability for Physical Harm) § 4
(2005).
51 Frey v. Kouf, 484 N.W.2d 864 (S.D. 1992). As to sufficiency of
intent to cause physical harm, see Restatement Third of Torts (Liability
for Physical Harm) § 5 (2005).
52 Restatement Third of Torts (Intentional Torts to Persons) §§ 101
& 103 (Tentative Draft No. 1, Apr 8, 2015); § 4.7.
53 Whitley v. Andersen, 37 Colo.App. 486, 551 P.2d 1083 (1976),
aff’d, 194 Colo. 87, 570 P.2d 525 (1977).
54 Johnson v. Ramsey County, 424 N.W.2d 800 (Minn. Ct. App. 1988)
(kiss implanted by employer); Rogers v. Loews L’Enfant Plaza Hotel, 526
F.Supp. 523 (D.D.C. 1981) (male superior on the job, unwanted touching of
the plaintiff’s hair).
55 See Taylor v. Johnston, 985 P.2d 460 (Alaska 1999); Mims v.
Boland, 110 Ga.App. 477, 138 S.E.2d 902 (1964).
56 See § 4.8.
57 See §§ 2.8 and 5.1.
58 See § 4.20.
59 Cole v. Turner, 6 Mod.Rep. 149, 90 Eng.Rep. 958 (Nisi Prius 1704)
(“the least touching of another in anger is a battery If any of them use
violence against the other … it is a battery”).
60 In the Interest of Baby Boy Doe v. Doe, 260 Ill.App.3d 392, 401,
632 N.E.2d 326, 332 (1994) (right to refuse medical treatment includes
right to refuse cesarian operation that might improve chances of fetus or
child); James Henderson, Why Vosburg Comes First, 1992 Wis. L. Rev.
853, 859.
61 Taylor v. Johnston, 985 P.2d 460 (Alaska 1999); Anderson v. St.
Francis-St. George Hosp., 83 OhioApp.3d 221, 614 N.E.2d 841 (1992), rev’d
on other grounds, 77 Ohio St.3d 82, 671 N.E.2d 225 (1996) (if life-saving
treatment was given against the plaintiff’s will, the plaintiff had a battery
claim).
62 Stockett v. Tolin, 791 F.Supp. 1536 (S.D. Fla. 1992) (employer
touched employee’s breasts, licked her); Johnson v. Ramsey County, 424
N.W.2d 800 (Minn. Ct. App. 1988) (kissing battery).
63 See Conte v. Girard Orthopaedic Surgeons Med. Group, 107
Cal.App.4th 1260, 132 Cal.Rptr.2d 855 (2003).
64 Restatement Second of Torts § 19 (1965); cf. Goff v. Clarke, 302
A.D.2d 725, 726, 755 N.Y.S.2d 493, 495 (2003).
65 E.g., Whitley v. Andersen, 37 Colo.App. 486, 551 P.2d 1083 (1976),
aff’d, 194 Colo. 87, 570 P.2d 525 (1977); Selmeczki v. New Mexico Dep’t of
Corrections, 139 N.M. 122, 129 P.3d 158 (Ct. App. 2006).
66 This is congruent with the rule for certain kinds of sexual
harassment claims under some federal statutes: an abusive or hostile
environment is required, but not emotional distress. See Harris v. Forklift
Systems, Inc., 114 S.Ct. 367, 371 126 L.Ed.2d 295, 510 U.S. 17, 22 (1993).
68 Id § 103 (a).
69 Id § 103(b) as subsequently modified.
70 Id.
71 See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1219 (10th Cir.
2003) (“Presumably, what makes such contact offensive … is the fact that
the procedure is performed without consent”); Cohen v. Smith, 269
Ill.App.3d 1087, 1090 648 N.E.2d 329, 332 (1995) (“Liability for battery
emphasizes the plaintiff’s lack of consent to the touching”); Messina v.
Matarasso, 284 A.D.2d 32, 35, 729 N.Y.S.2d 4, 7 (2001) (“Lack of consent is
considered in determining whether the contact was offensive”).
72 Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905) (consent to
operate on right ear, actual operation on left ear, held a battery, but
benefits of the operation are to be considered in fixing damages), overruled
on other grounds by Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854
(1957); see Cobbs v. Grant, 8 Cal. 3d 229, 239, 502 P.2d 1, 7, 104 Cal. Rptr.
505, 511 (1972).
73 Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013) (consent,
actual or apparent, destroys “the wrongfulness of the conduct between the
consenting parties”); Hellriegel v. Tholl, 69 Wash.2d 97, 417 P.2d 362
(1966).
74 Cf. See, e.g., Balas v. Huntington Ingalls Industries, Inc., 711 F.3d
401 (4th Cir. 2013) (supervisor’s hug was not objectively offensive given
the context).
(Tentative Draft No. 1, Apr 8, 2015). Cf. McCracken v. O.B. Sloan, 40
N.C.App. 214, 252 S.E.2d 250 (1979) (plaintiff touched by smoke).
76 Perhaps this is what some New York courts have in mind when
they say that contact is offensive when it is “wrongful under all the
circumstances,” as in Goff v. Clarke, 302 A.D.2d 725, 726, 755 N.Y.S.2d
493, 495 (2003).
cmt.(a) (Tentative Draft No. 1, Apr 8, 2015).
78 Vitale v. Henchey, 24 S.W.3d 651 (Ky. 2000), might be read to
authorize recovery for an innocent touching, one not intended either to
harm or to offend. But that was a case in which the defendant in fact knew
that the touching was not consented to, so liability is quite appropriate
under the intent to harm or offend standard. Other cases sometimes tell us
what proof is insufficient—the plaintiff cannot prevail without proving
intended bodily contact—but probably should not be construed to mean
that when such proof is made it is also sufficient without proof of intent to
harm or to violate the plaintiff’s wishes. See Laurie Marie M. v. Jeffrey
T.M., 159 A.D.2d 52, 559 N.Y.S.2d 336 (1990), aff’d, 77 N.Y.2d 981, 575
N.E.2d 393, 571 N.Y.S.2d 907 (1991).
79 Wagner v. State, 122 P.3d 599 (Utah 2005) (state not liable if
attack by mentally-limited ward in its care was a battery, and it was,
whether the ward intended harm or not); Hunt v. State Dep’t of Safety &
Homeland Sec., 69 A.3d 360 (Del. 2013) (intent necessary for battery is
intent to make contact with the person, not the intent to cause harm, but
no battery because no actual harm or offense); Sutton v. Tacoma Sch. Dist.
No. 10, 324 P.3d 763 (Wash. Ct. App. 2014) (“the requisite intent for
battery is the intent to cause the contact, not the intent to cause injury”).
Cf. White v. University of Idaho, 118 Idaho 400, 401, 797 P.2d 108, 109
(1990) (intent to “act” required but not either intent to harm or to offend).
In White, a professor and piano enthusiast touched the plaintiff’s back
with his hands as if playing a piano. The plaintiff was a social
acquaintance and fellow enthusiast; neither harm nor offense was
intended. An unexpected injury occurred. The victim sued the professor’s
employer, a state university, which might be held liable for an employee’s
negligence but not the employee’s battery. The court held that the
professor’s act was a battery so that the university was not liable. In other
words, the result of the court’s expansive conception of battery is not
liability but non-liability.
80 White v. Muniz, 999 P.2d 814 (Colo. 2000) (full discussion and
clear holding); Mullins v. Parkview Hosp., 865 N.E.2d 608 (Ind. 2007) (no
battery claim is stated where there is no allegation that the defendant had
“the intent to cause harm”); Baska v. Scherzer, 283 Kan. 750, 756, 156
P.3d 617, 622 (2007) (“The gravamen of a civil assault and battery is
grounded upon the actor’s intention to inflict injury.”); Caudle v. Betts, 512
So.2d 389, 390 (La. 1987); Nelson v. Carroll, 355 Md. 593, 600, 735 A.2d
1096, 1099 (1999); Carlsen v. Koivumaki, 227 Cal.App.4th 879 (2014)
(requiring proof that “the defendant touched the plaintiff, or caused the
plaintiff to be touched, with the intent to harm or offend the plaintiff”).
81 For a thoughtful defense of the dual intent position, see Nancy J.
Moore, Intent and Consent in the Tort of Battery: Confusion and
Controversy, 61 Am. U. L. Rev. 1585 (2012). For a thoughtful discussion
about balancing harms regulated and costs imposed in the intentional tort
framework, see Keith N. Hylton, Intent in Tort Law, 44 Val. U. L. Rev.
1217 (2010) (“The intent rules of tort law function as a pricing mechanism
that ensures optimal regulation of injury-causing activity. Optimal
regulation avoids underdeterrence of harmful conduct and overdeterrence
of beneficial activities.”).
82 Kenneth W. Simons, A Restatement (Third) of Intentional Torts?,
48 Ariz. L. Rev. 1061 (2006). He makes similar arguments based on his
belief that practical jokers are liable without intent to harm or offend.
83 Id. at 1067–68.
84 See § 4.7.
85 Kenneth W. Simons, supra n. 82, at 1069.
86 Actual but unexpressed consent would necessarily be an
affirmative defense in the rare case in which it could be established, since
that consent would be unknown to the defendant and the defendant’s
touchings where no consent is known would have to be judged to be
offensive.
87 Cf. Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972) (friendly,
unsolicited hug caused unintended and unexpected paralysis, no liability
for battery, but potential liability for negligence).
88 In some jurisdictions, the plaintiff may be permitted to allege
conclusory allegations that the touching was not permitted or, the same
thing, that it was not apparently consented to. See Shugar v. Guill, 304
N.C. 332, 283 S.E.2d 507 (1981). In others, courts may dismiss a complaint
if it fails to assert something more than a legal conclusion. See Caldwell v.
CVS Corp., 443 F.Supp.2d 654 (D.N.J. 2006). If the plaintiff had not
consented or presented the appearance of consent, she should be able to so
allege in one form or another in a verified complaint. It is important to
recognize that this is not an onerous requirement.
90 Id. § 102 cmt. a.
91 Id. § 102 cmt. b.
92 Id. § 102 cmt. b illus 3 (touching the back as though it is a piano
keyboard, inadvertently causing nerve pain). Compare White v. University
of Idaho, 118 Idaho 400, 401, 797 P.2d 108, 109 (1990).
93 Id. § 102 cmt. a illus. 5 (one can assume there is apparent consent
to a tap on the shoulder in a movie theatre). Cf. Balas v. Huntington
Ingalls Industries, Inc., 711 F.3d 401 (4th Cir. 2013) (applying Virginia
law: supervisor’s hug of female employee was not objectively offensive
despite employee’s testimony that she was offended, where the employee
had just given Christmas cookies to the supervisor, and the supervisor had
thanked her and told her that “she never ceased to amaze him”; touching
was not unwarranted based on the social usages prevalent at the time and
place).
94 Id. at Scope note.
95 Snouffer v. Snouffer, 621 N.E.2d 879 (Ohio. Ct. App. 1993)
(administering poison is a battery).
96 This distinction is one of the factual bases for the traditional legal
difference between trespass to land (physical, tangible entry) and nuisance
(intangible invasions affecting enjoyment but not possession).
97 See McCracken v. O.B. Sloan, 40 N.C.App. 214, 252 S.E.2d 250
(1979) (upholding smokers’ rights and refusing to find battery); see Renee
Vintzel Loridas, Annotation, Secondary Smoke as Battery, 46 A.L.R.5th
813 (1997).
98 Richardson v. Hennly, 209 Ga. App. 868, 434 S.E.2d 772 (1993),
rev’d on other grounds, 264 Ga. 355, 444 S.E.2d 317 (1994); Leichtman v.
WLW Jacor Commc’ns, Inc., 92 Ohio App.3d 232, 634 N.E.2d 697 (1994).
See David Ezra, Smoker Battery: An Antidote to Second-Hand Smoke, 63
S. Cal. L. Rev. 1061 (1990) (canvassing theories for claims against
smokers).
99 Swope v. Columbian Chems. Co., 281 F.3d 185 (5th Cir. 2002)
(ozone fumes); Field v. Philadelphia Elec. Co., 388 Pa.Super. 400, 417, 565
A.2d 1170, 1178 (1989) (radiation).
100 Espinoza v. Thomas, 189 Mich.App. 110, 472 N.W.2d 16 (1991)
(group of strikers blocking, rocking, and beating on the car plaintiff was
driving is a battery); Picard v. Barry Pontiac-Buick, Inc., 654 A.2d 690
(R.I. 1995).
101 Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967).
102 Selmeczki v. New Mexico Dep’t of Corrections, 139 N.M. 122, 129
P.3d 158 (Ct. App. 2006).
103 Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955).
104 Richardson v. Hennly, 209 Ga.App. 868, 434 S.E.2d 772 (1993),
rev’d on other grounds, 264 Ga. 355, 444 S.E.2d 317 (1994) (it is enough
that defendant sets a force in motion that touches the plaintiff, quoting
Prosser & Keeton on Torts § 9); Wilder v. Gardner, 147 S.E. 911 (Ga. Ct.
App. 1929) (“One who by advice, counsel, or command procures another to
commit a wrong” is equally liable); Mock v. Polley, 116 Ind. App. 580, 589,
66 N.E.2d 78, 81–82 (1946) (one aiding and abetting or encouraging
battery is “equally guilty” and liable in tort); Leichtman v. WLW Jacor
Commc’ns, Inc., 92 Ohio App. 3d 232, 236, 634 N.E.2d 697, 699 (1994)
(“one who is present and encourages or incites commission of a battery …
can be equally liable as a principal”). See similarly Mullins v. Parkview
Hosp., 865 N.E.2d 608 (Ind. 2007).
105 E.g., Restatement Third of Torts (Intentional Torts to Persons)
§101 cmt. c (Tentative Draft No. 1, Apr 8, 2015) (actor’s conduct must be a
voluntary act or course of activity); Restatement Second of Torts § 13
(1965) (liability for harmful battery requires act, intention, and harmful
contact).
106 Restatement Second of Torts § 2 (1965).
rptr. note cmt. c (Tentative Draft No. 1, Apr 8, 2015).
108 Id. Restatement Second of Torts § 2 cmt. b (1965).
109 Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468 (1988).
110 Cf. Price v. City of Seattle, 106 Wash. App. 647, 660 24 P.3d 1098
(2001) (defendant’s failure to prevent landslides on upper property from
damaging the plaintiffs’ lower property was not a trespass because failure
to act is not an act).
111 Employers are generally protected from negligence claims under
workers’ compensation laws, but sometimes not for intentional tort claims.
See generally Jean Love, Actions for Nonphysical Harm: The Relationship
Between the Tort System and No-Fault Compensation (With an Emphasis
on Workers’ Compensation), 73 Cal. L. Rev. 857 (1985).
112 Employers liable for negligence: E.g., Ford v. Revlon, Inc., 153
Ariz. 38, 734 P.2d 580 (1987). Hospital liable for negligence: Sumblin v.
Craven Cnty. Hosp. Corp., 86 N.C.App. 358, 357 S.E.2d 376 (1987). See
Ellen Bublick, A Restatement (Third) of Torts: Liability for Intentional
Harm to Persons—Thoughts, 44 Wake Forest L. Rev. 1335 (2009)
(discussing a hypothetical case in which a lifeguard fails to rescue a person
for the purpose of causing harm).
113 Restatement Third of Torts (Intentional Torts to Persons) § 101
cmt. c (Tentative Draft No. 1, Apr 8, 2015).
114 See Chapter 31 on vicarious liability generally.
115 Saucier v. McDonald’s Restaurants of Mont., 342 Mont. 29, 47, 179
P.3d 481, 494 (2008) (tort claim referred to conduct as “sexual assault and
battery,” however plaintiff cited evidence to support battery claim but not
separate claim of assault).
116 Restatement Second of Torts §§ 21 & 32 (1965).
118 Bowie v. Murphy, 271 Va. 127, 624 S.E.2d 74 (2006).
119 Id.
illus. 2–4 (Tentative Draft No. 1, Apr 8, 2015); Broadley v. State, 939 A.2d
1016 (R.I. 2008) (severely disabled woman who resided in state-financed
facility and had severe bruise had no assault claim because of the lack of
evidence that she was placed in fear of physical harm); Koffman v.
Garnett, 265 Va. 12, 574 S.E.2d 258 (2003).
121 See § 4.18.
122 Etherton v. Doe, 597 S.E.2d 87, 89 (Va. 2004).
illus. 2–4 (Tentative Draft No. 1, Apr 8, 2015); McCraney v. Flanagan, 47
N.C.App. 498, 267 S.E.2d 404 (1980) (when plaintiff awoke, she found that
defendant had had sexual intercourse with her, but as she had not been
aware of an imminent sexual touching, she had no assault claim).
124 See § 4.20.
125 Lamb v. State, 93 Md. App. 422, 438, 613 A.2d 402, 409 (1993)
(words like fear are sometimes used loosely as shorthand for the
traditional term apprehension, but fear is not literally required, citing
Prosser & Keeton on Torts § 10).
illus. 1 (Tentative Draft No. 1, Apr 8, 2015); Restatement Second of Torts §
24 cmt. b & illus. 1 & 2 (1965).
127 Allen v. Walker, 569 So.2d 350, 351 (Ala. 1990) (“well-founded fear
of an imminent battery, coupled with the apparent present ability to
effectuate the attempt, if not prevented”); Espinoza v. Thomas, 189 Mich.
App. 110, 472 N.W.2d 16 (1991).
128 Muslow v. A.G. Edwards & Sons, Inc., 509 So.2d 1012, 1021 (La.
Ct. App. 1987) (“reasonable apprehension” based on “present ability”);
Hawkins v. Hawkins, 101 N.C.App. 529, 400 S.E.2d 472 (1991), aff’d, 331
N.C. 743, 417 S.E.2d 447 (1992) (“reasonable apprehension, apparent
ability”).
129 Webbier v. Thoroughbred Racing Protective Bureau, Inc., 105 R.I.
605, 614, 254 A.2d 285, 290 (1969) (“Words alone are never a sufficient
basis for a finding for assault”). However, words-alone cases now tend to
recognize that words must be interpreted in light of circumstances and
may, in that light, count as an assault. See Muslow v. A.G. Edwards &
Sons, Inc., 509 So.2d 1012, 1020 (La. Ct. App. 1987); Johnson v. Bollinger,
86 N.C.App. 1, 356 S.E.2d 378 (1987); Restatement Third of Torts
(Intentional Torts to Persons) §105 cmt. g (Tentative Draft No. 1, Apr 8,
2015); Restatement Second of Torts § 31 (1965).
131 Words that do not threaten a battery in one setting may do so in
another. In Cullison v. Medley, 570 N.E.2d 27 (Ind.1991), the defendants
entered the plaintiff’s home at night after he had gone to bed. They
accused him of bothering a young woman in their family and berated him
extensively. One of them kept slapping at a gun he wore on his thigh, but
did not draw it. The court held that these facts would support a claim for
assault. See also Johnson v. Bollinger, 86 N.C.App. 1, 356 S.E.2d 378
(1987).
cmt. d (Tentative Draft No. 1, Apr 8, 2015).
133 Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981); cf.
Johnson v. Brooks, 567 So.2d 34, 35 (Fla. Dist. Ct. App. 1990) (numerous
threatening telephone calls not “acts,” at most they are statements of
intention to act).
134 Vietnamese Fishermen’s Ass’n v. Knights of the Ku Klux Klan,
518 F.Supp. 993 (S.D.Tex. 1981); State Rubbish Collectors Ass’n v.
Siliznoff, 38 Cal.2d 330, 240 P.2d 282 (1952).
135 Espinoza v. Thomas, 189 Mich.App. 110, 472 N.W.2d 16 (1991).
136 Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008).
137 See Gouin v. Gouin, 249 F.Supp.2d 62, 70 (D. Mass. 2003)
(“During this altercation involving a dispute over their son, Dori alleges
that Gouin told her: ‘You can either do it my way or I can beat you half to
death’…. These allegations are sufficient to state a claim for assault”).
cmt. h (Tentative Draft No. 1, Apr 8, 2015); Restatement Second of Torts §
30 illus. 1 (1965).
139 See Wayne LaFave & Austin Scott, Jr., Criminal Law 7.16 (1986)
(discussing two types of assault statutes, those that make attempted
battery an assault and those that make intentional scaring of the victim
an assault).
140 For this reason, there has been some suggestion that assault
might be properly situated in a framework that addresses liability for
other types of emotional harms. See Ellen Bublick, A Restatement (Third)
of Torts: Liability for Intentional Harm to Persons—Thoughts, 44 Wake
Forest L. Rev. 1335 (2009); Robert L. Rabin, Emotional Distress in Tort
Law: Themes of Constraint, 44 Wake Forest L. Rev. 1197, 1210 (2009).
141 E.g., Ford v. Revlon, Inc., 153 Ariz. 38, 734 P.2d 580 (1987).
142 Phillips v. Smalley Maint. Servs., Inc., 435 So.2d 705 (Ala. 1983)
(sexual demands in employment treated as privacy suit).
143 Assault-like behavior might sometimes count as excessive force
prohibited by the Fourth or Eighth Amendments and made actionable by
civil rights statutes. See Northington v. Jackson, 973 F.2d 1518 (10th Cir.
1992).
144 42 U.S.C.A. § 2000e (2015).
145 18 U.S.C.A. § 248 (2015).
146 See Planned Parenthood of Columbia/Willamette, Inc. v. American
Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (exploring
constitutional free speech rights but concluding that if posters threatened
abortion providers with murder, the speech was not constitutionally
protected).
147 See Silvija Strikis, Stopping Stalking, 81 Geo. L. J. 2771 (1993).
148 E.g., People v. Borrelli, 77 Cal.App.4th 703, 91 Cal.Rptr.2d 851
(2000); Ariz. Rev. Stat. § 13–2921 (“harassment”).
149 E.g., Cal. Civ. Code § 1708.7. The California statute creates a
statutory tort called stalking based on a pattern of conduct the “intent of
which was to follow, alarm, or harass the plaintiff,” with resulting
reasonable fear by the plaintiff for herself or an immediate family
member. In addition, the defendant must either make a credible threat or
violate a restraining order. See also Or. Rev. Stat. § 30.866.
150 See Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 941 (7th Cir.
2003) (“accidentally” confining the plaintiff in a locked room does not meet
the intent requirement).
151 Restatement Second of Torts § 35 (1965). Confinement, detention,
restraint are all terms used; they appear to refer to the same underlying
idea.
152 Deadman v. Valley Nat’l Bank of Ariz., 154 Ariz. 452, 743 P.2d 961
(Ct. App. 1987); Desai v. SSM Health Care, 865 S.W.2d 833 (Mo. Ct. App.
1993); Restatement Second of Torts § 45A (1965). This rule explains why a
physician who testifies that he examined the plaintiff and found her
mentally ill when in fact he never examined her at all may be held for the
plaintiff’s false imprisonment when she is later confined as a mentally ill
person. See Crouch v. Cameron, 414 S.W.2d 408, 30 A.L.R.3d 520 (Ky.
1967).
153 A plaintiff who voluntarily accepts apparent confinement is not
confined if she can leave at any time. See Pounders v. Trinity Court
Nursing Home, 265 Ark. 1, 576 S.W.2d 934, 4 A.L.R.4th 442 (1979). In
other cases the plaintiff consents in advance to a confinement from which
she cannot escape, in which case the confinement is real but the consent is
a defense until it is properly revoked. See Day v. Providence Hosp., 622
So.2d 1273 (Ala. 1993) (consent to stay overnight in locked psychiatric
ward).
154 Restatement Second of Torts §§ 35, 42 (1965). The Restatement
Third of Intentionnal Torts to Persons is ongoing and has not yet
addressed the tort of false imprisonment. See also Douthit v. Jones, 619
F.2d 527 (5th Cir. 1980); Parvi v. City of Kingston, 41 N.Y.2d 553, 362
N.E.2d 960, 394 N.Y.S.2d 161 (1977).
155 See, e.g., Enders v. District of Columbia, 4 A.3d 457, 461 (D.C.
2010) (“ ‘false arrest’ is indistinguishable as a practical matter from the
common law tort of ‘false imprisonment’ ”); Asgari v. City of Los Angeles,
15 Cal.4th 744, 937 P.2d 273, 63 Cal.Rptr.2d 842 (1997).
156 See 1 Dobbs, Hayden & Bublick, The Law of Torts §§ 75–79 (2d ed.
2011 & Supp.).
157 Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197 (10th Cir.
2006); Fair Oaks Hosp. v. Pocrass, 266 N.J.Super. 140, 628 A.2d 829
(1993).
158 Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1208 (10th
Cir. 2006) (“brief time” sufficient).
159 Cf. Taylor v. Super Discount Mkt., Inc., 212 Ga.App. 155, 441
S.E.2d 433 (1994) (implicitly a privilege case; store clerk briefly retained
the plaintiff’s $20 bill to investigate whether it was counterfeit, no false
imprisonment); Thornhill v. Wilson, 504 So.2d 1205 (Miss. 1987) (officers’
defense to false imprisonment claim where their detention of plaintiff in
the course of crime investigation was reasonable).
160 Obstruction of a public road may be a public nuisance for which a
seriously affected individual may have a private right of action. See § 30.6.
Refusal to admit the plaintiff to a place of public accommodation may
violate civil rights laws and at least permit an injunction. See 42 U.S.C.A.
§ 2000a–5(a) (2015).
161 Shen v. Leo A. Daly Co., 222 F.3d 472, 478 (8th Cir. 2000).
162 Restatement Second of Torts § 36 cmt. a (1965); Krochalis v.
Insurance Co. of N. Am., 629 F.Supp. 1360 (E.D. Pa. 1985). To be
reasonable, the means of egress must be (a) readily knowable and (b)
reasonably safe and appropriate. See Noguchi v. Nakamura, 2 Haw.App.
655, 638 P.2d 1383 (1982) (egress from moving car not reasonable).
163 See § 7.17.
164 Collins v. Straight, Inc., 748 F.2d 916 (4th Cir. 1984); Geddes v.
Daughters of Charity of St. Vincent de Paul, Inc., 348 F.2d 144 (5th Cir.
1965); see generally Annotation, False Imprisonment in Connection with
Confinement in Nursing Home or Hospital, 4 A.L.R.4th 449 (1981).
165 Noguchi v. Nakamura, 2 Haw.App. 655, 638 P.2d 1383 (1982)
(injury trying to escape, potential liability); Sindle v. New York City
Transit Auth., 33 N.Y.2d 293, 352 N.Y.S.2d 183, 307 N.E.2d 245 (1973)
(similar).
166 E.g., Gordon v. Villegas, 1994 WL 86373 (Conn. Super. Ct. 1994)
(unpublished).
167 Geddes v. Daughters of Charity of St. Vincent de Paul, Inc., 348
F.2d 144 (5th Cir. 1965).
168 E.g., Stockett v. Tolin, 791 F.Supp. 1536 (S.D. Fla. 1992) (among
many misdeeds, employer pinned employee to chair for a few moments;
false imprisonment and other torts were established).
169 McDonald’s Corp. v. Ogborn, 309 S.W.3d 274 (Ky. Ct. App. 2009).
170 Schanafelt v. Seaboard Fin. Co., 108 Cal.App.2d 420, 239 P.2d 42
(1951).
171 Verstraelen v. Kellog, 60 Wash.2d 115, 372 P.2d 543 (1962).
172 Wallace v. Stringer, 260 Ga. App. 850, 553 S.E.2d 166 (2001) (Wal-
Mart allegedly took and held baby blanket, claiming it belonged to the
store; dominion over the blanket and refusal to allow the plaintiff to go to
the bathroom would be confinement); Burrow v. K-Mart Corp., 166
Ga.App. 284, 304 S.E.2d 460 (1983); Ashland Dry Goods Co. v. Wages, 302
Ky. 577, 195 S.W.2d 312 (1946).
173 Martin v. Houck, 141 N.C. 317, 54 S.E. 291 (1906); Restatement
Second of Torts § 41 (1965) (if plaintiff believes authority is valid or is in
doubt about its validity and submits to it).
174 Covell v. McCarthy, 123 Vt. 472, 194 A.2d 394 (1963) (after using
a siren and flashing lights to pull driver over, officer asked, “will you come
with me to the station?”; the driver accompanied the officer; held, a factual
question whether this was submission to authority and therefore a false
arrest).
175 See McCann v. Wal-Mart Stores, Inc., 210 F.3d 51 (1st Cir. 2000)
(seemingly considering police call as an important factor in finding
confinement of a customer).
176 Schanafelt v. Seaboard Fin. Co., 108 Cal.App.2d 420, 423, 239
P.2d 42, 43 (1951); Burrow v. K-Mart Corp., 166 Ga.App. 284, 287, 304
S.E.2d 460, 463 (1983) (“reasonable apprehension that force will be used if
the plaintiff does not submit”); Jacques v. Childs Dining Hall Co., 244
Mass. 438, 138 N.E. 843, 26 A.L.R. 1329 (1923).
177 See Collins v. Straight, Inc., 748 F.2d 916 (4th Cir. 1984) (drug
treatment center, six and one-half hours of intimidation with door blocked,
false imprisonment verdict upheld).
178 Cassady v. Tackett, 938 F.2d 693 (6th Cir. 1991) (civil rights claim
against jailer whose threats allegedly forced the plaintiff to barricade
herself in her office).
179 Restatement Second of Torts § 40A (1965) (threats to member of
plaintiff’s immediate family). The Restatement’s “immediate family” rule
seems unduly restrictive. If the plaintiff would be privileged to defend a
third person against the action threatened, it seems logical to say that she
could attempt to avoid the threatened action by sacrificing her own
freedom of movement.
180 Miraliakbari v. Pennicooke, 254 Ga.App. 156, 561 S.E.2d 483
(2002) (noting, however, that a public employee with a property interest in
her job might present a different case).
181 Herbst v. Wuennenberg, 83 Wis.2d 768, 266 N.W.2d 391 (1978).
182 E.g., Hardy v. LaBelle’s Distrib. Co., 203 Mont. 263, 661 P.2d 35
(1983); cf. Pounders v. Trinity Court Nursing Home, 265 Ark. 1, 576
S.W.2d 934, 4 A.L.R.4th 442 (1979) (although nursing home told resident
that she could not leave and even had her shoes, she was not confined
because she had consented to being there initially and could walk out
[barefooted?] at any time).
183 Black v. Kroger Co., 527 S.W.2d 794 (Tex. Civ. App. 1975).
184 DeAngelis v. Jamesway Dep’t Store, 205 N.J. Super. 519, 501 A.2d
561 (1985) (17-year-old employee, shouting, verbal refusal to permit her to
leave or talk to parents); Dupler v. Seubert, 69 Wis.2d 373, 230 N.W.2d
626 (1975) (one man stood at the door and another demanded the plaintiff
sit down when she attempted to leave).
185 Compare Dupler v. Seubert, 69 Wis.2d 373, 230 N.W.2d 626 (1975)
(plaintiff outnumbered, evidence of threats sufficient), with Herbst v.
Wuennenberg, 83 Wis.2d 768, 266 N.W.2d 391 (1978) (three male plaintiffs
claimed to have been confined by woman who stood in the doorway,
evidence insufficient). See also Collins v. Straight, Inc., 748 F.2d 916 (4th
Cir. 1984) (drug treatment center, to induce the plaintiff to accept
treatment/confinement used more than one staff member to intimidate the
plaintiff for hours in an isolated, windowless room).
186 Drabek v. Sabley, 31 Wis.2d 184, 142 N.W.2d 798, 20 A.L.R.3d
1435 (1966).
187 E.g., Pounders v. Trinity Court Nursing Home, 265 Ark. 1, 576
S.W.2d 934, 4 A.L.R.4th 442 (1979); Herbst v. Wuennenberg, 83 Wis.2d
768, 266 N.W.2d 391 (1978).
188 The Limited Stores, Inc. v. Wilson-Robinson, 317 Ark. 80, 876
S.W.2d 248 (1994) (when the store’s alarm went off as plaintiff left the
store, employees asked plaintiff if she would return to the store, and when
she did, then established that she carried a calculator that might have set
off the alarm; no false imprisonment).
189 Cathrael Kazin, “Nowhere to Go and Chose to Stay”: Using the
Tort of False Imprisonment to Redress Involuntary Confinement of the
Elderly in Nursing Homes and Hospitals, 137 U. Pa. L. Rev. 903, 904
(1989), criticizing Pounders v. Trinity Court Nursing Home, 265 Ark. 1,
576 S.W.2d 934, 4 A.L.R.4th 442 (1979) (concluding, over dissents, that
plaintiff “voluntarily” remained in nursing home).
190 Cf. Collins v. Straight, Inc., 748 F.2d 916 (4th Cir. 1984) (drug
treatment center, intimidation in what reads like the brainwashing
pattern); Candy H. v. Redemption Ranch, Inc., 563 F.Supp. 505 (M.D. Ala.
1983) (unwed, pregnant young woman allegedly held incommunicado at
“redemption” home, facts alleged would establish common law false
imprisonment or civil rights tort).
191 Laura Brown, He Who Controls the Mind Controls the Body: False
Imprisonment, Religious Cults, and the Destruction of Volitional Capacity,
25 Val. U. L. Rev. 407 (1991). As to the sometimes similar techniques in
“deprogramming” alleged cult victims, see Taylor v. Gilmartin, 686 F.2d
1346 (10th Cir. 1982).
192 Douthit v. Jones, 619 F.2d 527 (5th Cir. 1980); Bennett v. Ohio
Dep’t of Rehab. & Correction, 60 Ohio St.3d 107, 573 N.E.2d 633 (1991).
193 Cf. Kowalski v. St. Francis Hosp. & Health Ctrs, 1 N.Y.3d 480
(2013) (hospital had no right to force a severely intoxicated patient to
remain in the hospital and therefore no duty to do so).
194 Stalter v. State, 86 P.3d 1159 (Wash. 2004) (but also holding that
there is no affirmative duty imposed upon a jailer to investigate identity of
persons properly arrested).
195 Whittaker v. Sandford, 110 Me. 77, 85 A. 399 (1912).
196 Cf. Drabek v. Sabley, 31 Wis.2d 184, 142 N.W.2d 798, 20 A.L.R.3d
1435 (1966) (10-year-old child in car being driven to police station); Sindle
v. New York City Transit Auth., 33 N.Y.2d 293, 307 N.E.2d 245 (1973)
(school bus driver driving boisterous passengers to police station, refusing
to stop).
197 Talcott v. National Exhibition Co., 144 A.D. 337, 128 N.Y.S. 1059
(1911).
198 Restatement Second of Torts § 45 cmt. a (1965) (store’s duty to
customer who accidently locks himself in the washroom).
199 Andrews v. Piedmont Airlines, 297 S.C. 367, 377 S.E.2d 127 (Ct.
App. 1989).
200 See 1 Dobbs, Hayden & Bublick, The Law of Torts § 77 (2d ed.
2011 & Supp.).
201 Once a formal charge has been made and the plaintiff is confined
by judicial order after arraignment, the false imprisonment is terminated
and the claim for any remaining damages must ordinarily be one for
malicious prosecution. See Asgari v. City of Los Angeles, 15 Cal.4th 744,
937 P.2d 273, 63 Cal. Rptr. 2d 842 (1997).
202 See Chapter 39.
203 See, e.g., Prince George’s Cnty. v. Longtin, 419 Md. 450, 19 A.3d
859 (2011) (affirming jury award of over $5 million for intentional
infliction of emotional distress in claim against police department, county,
and individual officers for false arrest). See Chapter 29.
204 Bettel v. Yim, 20 O.R.2d 617, 88 D.L.R.3d 543 (Ont. Co. Ct. 1978);
Restatement Second of Torts § 16 (1965).
205 Restatement Second of Torts §§ 18 & 20 (1965). Because the
Restatement Third requires only intent to contact and not intent to harm
or offend, this result is implicit. Restatement Third of Torts (Intentional
Torts to Persons) § 101 (Tentative Draft No. 1, Apr 8, 2015).
206 Baska v. Scherzer, 283 Kan. 750, 156 P.3d 617 (2007); Davis v.
White, 18 B.R. 246 (Bkrtcy. Va. 1982); Singer v. Marx, 144 Cal.App.2d 637,
301 P.2d 440 (1956); Talmadge v. Smith, 101 Mich. 370, 59 N. W. 656
(1894); Carnes v. Thompson, 48 S.W.2d 903 (Mo. 1932).
207 Holloway v. Wachovia Bank & Trust Co., 109 N.C.App. 403, 428
S.E.2d 453 (1993), rev’d on other grounds, 339 N.C. 338, 452 S.E.2d 233
(1994).
208 Du Lac v. Perma Trans Prods., Inc., 103 Cal. App. 3d 937, 163 Cal.
Rptr. 335 (1980), overruled on other grounds, Hagberg v. California Fed.
Bank FSB, 32 Cal. 4th 350, 81 P.3d 244, 7 Cal. Rptr. 3d 803 (2004);
209 Manning v. Grimsley, 643 F.2d 20 (1st Cir. 1981) (heckled baseball
pitcher may have thrown at hecklers protected behind the screen,
intending to put them in apprehension of imminent bodily touching; the
screen broke and the plaintiff was actually injured); Brown v. Martinez, 68
N.M. 271, 361 P.2d 152 (1961); Restatement Third of Torts (Intentional
Torts to Persons) § 106 cmt. b (Tentative Draft No. 1, Apr 8, 2015).
210 Alteiri v. Colasso, 168 Conn. 329, 362 A.2d 798 (1975) (boy threw a
stone intended to scare but not hit A; the stone actually hit B, who was
injured; liability). Cf. Sindle v. New York City Transit Auth., 33 N.Y.2d
293, 307 N.E.2d 245 (1973) (bus driver refused to stop to permit rowdy
passengers to depart; plaintiff was injured trying to escape).
211 William Prosser, Transferred Intent, 45 Tex. L. Rev. 650 (1967).
212 Restatement Third of Torts (Intentional Torts to Persons) § 110(a)
213 The Restatement defines each tort to include cases in which some
other tort or harm was intended, and to include as well cases in which the
tort was intended to another person. See Restatement Second of Torts §§
13, 16, 18, 20 & 21 (1965).
215 Morris v. Platt, 32 Conn. 75 (1864); Moore v. City of Detroit, 128
Mich.App. 491, 340 N.W.2d 640 (1983); William Prosser, Transferred
Intent, 45 Tex. L. Rev. 650 (1967).
cmt. c (Tentative Draft No. 1, Apr 8, 2015).
217 See Davis v. White, 18 B.R. 246 (Bkrtcy. Va. 1982).
218 Baska v. Scherzer, 283 Kan. 750, 156 P.3d 617 (2007) (holding
that a plaintiff cannot plead a “transferred intent” battery as negligence in
order to avoid a shorter statute of limitations).
219 It is possible to think of liability in excess of moral fault as a
species of strict or absolute liability. In Manning v. Grimsley, 643 F.2d 20
(1st Cir. 1981), the court regarded the transferred intent rules as imposing
absolute liability, although the court also thought that to be justified.
220 See Manning v. Grimsley, 643 F.2d 20 (1st Cir. 1981) (strong
social policy to induce obedience to criminal law by imposing liability);
John Fleming, The Law of Torts 25 (8th ed. 1992). Cf. William Prosser,
Transferred Intent, 45 Tex. L. Rev. 650 (1967) (as between innocent
plaintiff and defendant guilty of moral wrong towards someone, it is better
that defendant bear the loss).
221 E.g., Caudle v. Betts, 512 So.2d 389 (La. 1987) (nerve damage);
Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955) (broken bone).
Chapter 34 covers damages generally.
222 Kennan v. Checker Taxi Co., Inc., 250 Ill. App. 3d 155, 897, 620
N.E.2d 1208, 1214 (1993) (“pain and suffering incurred by the plaintiff as a
result of the blows inflicted, and for the humiliation, indignity, and
vexation suffered by the plaintiff as a result of his assailant’s conduct”);
Rosenbloom v. Flygare, 501 N.W.2d 597 (Minn. 1993).
223 Stockett v. Tolin, 791 F.Supp. 1536 (S.D. Fla. 1992).
224 Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008) (affirming jury
award of $325,000 for assault, even where jury rejected plaintiff’s
intentional infliction of emotional distress claim; plaintiff presented
evidence that his major depressive disorder, anxiety and panic disorder
was caused by defendant’s assault).
225 E.g., Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004) (jury
must be instructed that, independent of pain or distress, the falsely
imprisoned plaintiff is entitled to substantial compensatory damages for
loss of liberty itself, referring to earlier awards of $10,000 for a three-hour
detention and $7,500 for a five-hour detention).
226 West v. King’s Dep’t Store, Inc., 321 N.C. 698, 365 S.E.2d 621, 624
(1988) (duration of restraint).
227 See Beard v. Flying J, Inc., 266 F.3d 792 (8th Cir. 2001); Johnson
v. Pankratz, 2 P.3d 1266 (Ariz. Ct. App. 2000) (substantial or presumed
damages available even in the absence of evidence as to amount); Johnson
v. Ramsey County, 424 N.W.2d 800 (Minn. Ct. App. 1988) (unwanted kiss
is actionable); cf. A.R.B. v. Elkin, 98 S.W.3d 99, 104 (Mo. Ct. App. 2003).
228 Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905), overruled on
other grounds by Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854
(1957); McCandless v. State, 3 A.D.2d 600, 162 N.Y.S.2d 570 (1957), aff’d
mem., 4 N.Y.2d 797, 173 N.Y.S.2d 30, 149 N.E.2d 530 (1958) (abortion that
was less painful than labor and delivery would have been and that
improved the plaintiff’s mental health, nevertheless warranted $2,000 in
compensatory damages).
229 The traditional case on the whole topic of such damages was an
assault case, I de S et ux. v. W de S., Y.B. Lib. Ass. f 99, pl. 60 (1348).
230 E.g., Beard v. Flying J, Inc., 266 F.3d 792 (8th Cir. 2001); Stockett
v. Tolin, 791 F.Supp. 1536 (S.D. Fla. 1992); Kennan v. Checker Taxi Co.,
Inc., 250 Ill. App. 3d 155, 620 N.E.2d 1208 (1993) (taxi driver battered
unsighted passenger; $193,000 punitive award); Carpentier v. Tuthill, 86
A.3d 1006 (Vt. 2013) (affirming $150,000 punitive damage award for
trespasory torts based on attempted rape).
231 See §§ 29.2, 29.3 discussing stand-alone emotional distress as a
tort in itself.
Harm) § 46 (2012) (“An actor who by extreme or outrageous conduct
intentionally or recklessly causes severe emotional harm to another is
subject to liability for that emotional disturbance and, if the emotional
disturbance causes bodily harm, also for the bodily harm”).
234 See Cates v. Taylor, 428 So.2d 637 (Ala. 1983).
235 Restatement Second of Torts § 48 (1965) recognizes the traditional
“special liability” of common carriers and public utilities for gross insults
to patrons.
236 49 Prospect St. Tenants Ass’n v. Sheva Gardens, Inc., 227 N.J.
Super. 449, 547 A.2d 1134 (1988).
237 State Rubbish Collectors Ass’n v. Siliznoff, 38 Cal.2d 330, 240 P.2d
282 (1952).
238 Id.; Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).
239 Restatement Third of Torts (Intentional Torts to Persons) § 110(a)
(Tentative Draft No. 1, Apr 8, 2015); Restatement Second of Torts § 46(2)
& cmt. l (1965).
240 Kant v. Altayar, 270 Neb. 501, 704 N.W.2d 537 (2005).
241 See § 29.4.
85
Chapter 5
INTENTIONAL INTERFERENCE WITH

REAL PROPERTY: TRESPASS TO LAND
Analysis
§ 5.4 Protecting Interests in Possession and Physical Integrity
§ 5.8 Remedies
§ 5.9 Temporary or Continuing Trespass vs. Permanent or Completed
Trespass
__________

One who intentionally enters or causes tangible entry upon the
land in possession of another is a trespasser and liable for the tort
of trespass, unless the entry is privileged or consented to.1 Physical
harm to the land is not required.2 The gist of the tort is intentional
interference with rights of exclusive possession; no other harm is
required. In modern law, the defendant is a trespasser not only if
he intentionally enters or causes entry, but also if he refuses to
leave or remove his goods from the land when he is under an
obligation to do so; hence a refusal to leave is equivalent to entry
for this purpose.3 One who has consent to be on the land may
become a trespasser by exceeding the consent.4 One who enters
above5 or below6 the surface may also be a trespasser.
The term trespass is confusing because legal professionals use it
in at least three quite different ways. First, the term refers to the
tort, made up of facts and a set of rules. One commits the tort of
trespass only when in addition to an entry or its equivalent, one
has an intent to enter. To use the term trespass in this sense is to
say that the trespass set of rules applies to determine the case and
not, say, the set of rules invoked if the claim is for negligence or
nuisance.
86
Second, the term sometimes refers only to the fact of entry on or

harm to land rather than to the legal effect of an entry or the set of
rules that attends the trespass theory. One can enter land without
committing the tort of trespass, but it is possible, using the term in
this second and more limited sense, to say the defendant
trespassed on the plaintiff’s land even when the tort of trespass
was not committed. This explains why, confusing and unfortunate
as it is, courts occasionally refer to a negligent trespass, meaning
only a negligent entry.7
Third, the term trespass can refer to the form of action by the
same name, the old writ of Trespass used in the earlier common
law. The modern tort claim for trespass originated in that writ.
Under its rules the plaintiff is not required to prove actual harm to
the land or to persons or things on it;8 interference with possession
is itself an injury for which the plaintiff can recover at least
nominal damages.9 These rules still hold.
Trespass: the writ or form of action. Forms of the writ of
Trespass were used for all claims resulting from direct use of
force.10 The form of the Trespass writ or the declaration used for
trespass to land was known as Trespass Quare Clausem Fregit,11
because it demanded that the defendant answer to the court
wherefore he broke the close, that is, whether or why he entered
the plaintiff’s land, which was fictionally treated as if it were
enclosed.
The intent required to show a trespass to land is the intent12 to
enter13 or to commit the equivalent of an entry. To cause an entry
upon the land by another14 or by an object,15
87
to remain upon the land after a privilege to be there has

terminated,16 to exceed the permitted use of the land,17 and to
refuse to remove goods or materials left there18 are all equivalent
to entry under modern law.
Intent to harm not required. Since intent to enter is sufficient,
the plaintiff need not show an intent to cause harm or even to
invade the plaintiff’s possessory rights.19 Thus one who intends to
and does enter a parcel of land in the mistaken belief that it is his
own land or that he has a right to be there is nonetheless a
technical trespasser and liable for nominal damages20 and any
actual harm done.21 Even a child can be a trespasser if he has the
intent to enter another’s land, or a part of the land not permitted to
him.22
Harm without intent. The intent rule, however, does not subject
the plaintiff to liability for unintended harm when he is rightfully
on the land. The negative import of the intent rule is that the
defendant is not liable for trespass when he enters by negligence,
by accident, or without an act of his own.23 For example, if he is
carried onto the land against his will,24 if his car goes out of control
and runs onto the land,25 or if his golf game is bad and he slices a
ball into the plaintiff’s house,26 the defendant is no trespasser.27 In
such cases, the defendant will be liable only if he is shown to have
been negligent in causing the harm.
Scope of the intent requirement. The requirement of intent
applies only to the trespass claim; the plaintiff is still free to prove,
if she can, that the defendant who lacked
88
intent to enter was nevertheless negligent in causing a harmful

entry,28 or else that he is subject to strict liability for abnormally
dangerous activities.29 However, if the plaintiff must rely upon a
negligence or abnormal danger theory rather than upon a trespass
theory, she must prove not only that the defendant was in fact
negligent, but also that the plaintiff suffered actual damages, not
merely an interference with technical possession.
The term intent in trespass to land cases means what it means
in other torts.30 The defendant intends an entry if it is his purpose
to enter. He also intends an entry if he knows that his actions
make entry substantially certain.31 The defendant who releases his
hounds for the fox hunt adjacent to the plaintiff’s croplands may
know to a virtual certainty that they will run on the plaintiff’s
land; if so, the defendant has the requisite intent and is liable as a
trespasser.32
Strict liability for trespass. Since the intent required to show a
trespass is only an intent to enter land, and since that intent might
be wholly innocent, the rules may sometimes impose a limited kind
of strict liability. But this appearance may be somewhat
misleading.
One possible case of theoretical strict liability is that of the
innocent trespasser who enters the land in the reasonable belief
that he has a right to be there. But in today’s world, suit is unlikely
to be brought at all if the defendant is a casual trespasser rather
than one who claims a right to be on the land. On the other hand, if
the trespasser claims the land as his own, his liability may still be
nominal and it may serve to establish the plaintiff’s title or right to
possession at a cost to the defendant essentially no different from
the cost he would incur if a declaratory judgment or some other
suit were brought to obtain a judicial determination of the parties’
rights. If this is strict liability, not much is to be made of it.
A second possible case of theoretical strict liability occurs if the
trespasser exploits the land or its resources in the innocent and
reasonable belief that he is entitled to do so. But in that case the
trespasser himself has made a gain from the trespass and liability
for that enrichment derived from another’s property is appropriate,
quite apart from tort law and regardless of his innocence.
A third kind of case that might impose strict liability for
trespass to land involves harms to land caused by the defendant’s
use of explosives or other high energy sources, as where the
defendant’s blasting with dynamite throws stones or debris onto
the plaintiff’s land. Strict liability was once imposed in such cases,
sometimes on a trespass theory.33 Strict liability is still imposed on
the same facts, but the cases are no longer
89
perceived as trespass to land cases. Instead, trespass is seen as

an accidental or unimportant feature in the cases, which are
viewed as turning on the defendant’s abnormally dangerous
activity.34 Liability is strict whether the resulting harm is a
trespass to land or an injury to the person.35 The result is that
trespass itself generates little or no strict liability.36
Trespass is one of the two major tort claims that aim to protect
plaintiffs from interference with interests in land; the other is
nuisance.37 The topic of nuisance is worthy of separate treatment
and gets a chapter of its own in this treatise.38 But it can be
difficult to explain modern trespass law without references to
nuisance, and many cases implicate both claims. Accordingly, a
brief exploration of some of the differences and similarities
between the two causes of action follows here, and references to
nuisance appear at several points in succeeding sections of this
chapter.
Trespass and nuisance are different causes of action with
different elements, but they are not mutually exclusive.39 That is,
a single act of the defendant could be both a trespass and a
nuisance.40 On the other hand, a trespass is not always a nuisance
and vice versa.41 The clearest way to draw the distinction is to
focus on the different interests protected by each tort; the nature of
the interest or interests invaded will thus determine whether the
defendant can be liable on a trespass theory or a nuisance theory,
or both.42
As is more fully delineated below, trespass protects a plaintiff’s
right to exclusive possession of land. Nuisance, on the other hand,
protects a plaintiff’s use and enjoyment of land.43 To invoke the law
of nuisance is to invoke a regime of accommodation between
conflicting land uses. The noise from your radio bothers me, but it
is not a trespass
90
because it does not interfere with my possession. Courts seek

accommodation in such cases by considering the reasonableness
and amount of the intrusion. If the noise is too loud or too long, it
may be a nuisance, otherwise not. On the other hand, the law of
trespass is a law of rights that does not depend upon
reasonableness except with certain defenses. Trespass is not
traditionally a matter of a lot or a little; it is a yes-or-no kind of
tort. If the defendant has committed an act equivalent to an
intentional entry and the plaintiff is a possessor, then, prima facie,
a trespass has occurred.
Another oft-cited distinction between trespass and nuisance is
that trespass deals with tangible interferences,44 whereas nuisance
deals primarily with intangible ones.45 Thus in the radio example
above, another reason why the defendant’s annoying blare is not a
trespass is because it is not a tangible interference with my
property rights.46 This distinction perhaps follows logically from
the more fundamental idea that while tangible entries onto land
may interfere with possession, intangible entries seldom do.
The trespass to land rules are clear and work well in the simple
paradigm on which they were built: the defendant walks or rides
onto the plaintiff’s land. The trespass to land rules are also clear
when the variations on that paradigm are insubstantial: the
defendant drives his cattle onto the land. But trespass rules may
become too inflexible or difficult to apply when the entry is by
smoke or pollution,47 the migration of underground liquids, the
growth of tree roots, or high overflights by aircraft.48 In all those
cases, courts have often put aside the trespass theory and analyzed
the case on different terms, usually as a potential nuisance.
The line between nuisance and trespass has never been
precisely marked, and some modern cases have blurred it further
by characterizing the intrusion of harmful microscopic particles as
trespasses rather than as nuisances and then by using some of the
techniques of nuisance law to weigh the amount and
reasonableness of the intrusion.49
§ 5.4 Protecting Interests in Possession and
Physical Integrity
Interests protected. The common law recognizes and protects
two major kinds of rights or interests in land from direct invasion
by physical forces: (1) The right to exclusive possession of land;
that is, the right to exclude others from the land,50 somewhat
analogous to the right of a person to prohibit touchings by others.
(2) The right of physical integrity of the land itself; that is, the
right to prevent others from doing physical harm to or taking any
part of the land, such as trees or minerals.51
91
Protecting possession. The right to sue for the tort of trespass

was originally conceived as a means of protecting the exclusive
possession of one on the land. Accordingly, courts today hold that
in order to maintain a suit for trespass, the plaintiff must either
have had legal title to the land, or legal possession of the land,
when the trespass occurred.52 The plaintiff need not be an owner in
fee; any legal, possessory interest will suffice. For instance, a
tenant in possession has a claim for a trespassory entry.53 Even an
adverse possessor of the land might have a claim against a mere
trespasser.54 The owner of vacant land is accounted the possessor
and hence has standing to sue the trespasser.55 However, the
owner of an easement—who has only a right to use the land, not a
possessory interest in it—has no claim for trespass interfering with
possession.56
Protecting physical integrity of the land; the owner’s
reversionary interests. If the entry also causes harm to the land’s
physical integrity that reduces the value of the owner’s interests as
well as the possessor’s, today’s law will also allow the owner to
recover for any actual damages he will ultimately suffer. For
instance, if the trespasser enters a tenant’s apartment, the tenant
has an action for trespass; if the trespasser rips the door off, the
landlord who must repair it has an action for the damages
resulting whether the theory is one of trespass or of case.57
To say that the owner’s claim is in case rather than trespass
implies three things: (1) The owner, as distinct from the possessor,
will have an action only if the trespass causes actual harm to the
owner’s interest. Mere interference with possession is not itself
enough. (2) The owner would be required to prove fault with
respect to the damages he claims. That might mean that the
trespasser’s intent to enter, if innocent, would not support the
owner’s claim for actual damages. That result is consistent with
the argument that “transferred intent” should not apply in the
absence of fault.58 (3) The trespass statute of limitations is
inappropriate so that some other, possibly shorter statute would
apply.59
Wrongful possessor’s suit against the owner. As will appear,60 a
landowner who is in possession of the land is privileged to use
reasonable force to defend the land against trespass by others.
When another person has come into possession of the land,
however, the landowner’s use of force to regain possession has long
been proscribed by statute61 in the belief that even reasonable
force asserted by the owner will beget violence. It is thus
theoretically possible for a wrongful possessor to recover from the
true owner who
92
attempts to recover the property by force. The scope of this rule

depends primarily upon the owner’s privilege, or lack thereof, to
retake the property.62
Intrusion. Entry upon the land, or the equivalent to entry upon
land, is definitionally essential to the tort of trespass. Actions
outside the land that do not cause intrusions upon it may
sometimes warrant liability, as where the adjoining landowner’s
excavation of his own soil allows the plaintiff’s soil to subside.63
But they are not trespasses because no intrusion has taken place.
Courts sometimes speak loosely in such cases, using the term
trespass to refer to any case of harms to land rather than to cases
that would be actionable only because intent and entry are
shown.64
Tangible intrusion. Because the action for trespass was
conceived as a means of protecting possession, a tangible entry
upon the land has been traditionally required. Anything less than
a tangible entry, such as penetration of the land by smoke, noise,
or light, might affect use and enjoyment (thus constituting
nuisance), but it would not affect possession.65 If the defendant
who caused air pollution was guilty of any tort at all, it was not the
tort of trespass.66
The rule requiring tangible entry for a trespass remains sound
today, and reflects ancient history reinforced by contemporary
policy. Pollution, noise, gases, unpleasant sights, and dangerous
conditions such as stored explosives can all reduce one’s enjoyment
of land, but courts have been unwilling to say that a landowner
would have a claim for damages any time she heard a noise or
smelled burning leaves. The policy view is that the law of trespass
with its automatic responsibility for any purposeful or certain
entry would produce too much liability.67 It provides no mechanism
for limiting liability to serious or substantial invasions. If smoke
drifting onto the plaintiff’s land were held to be a trespass, even a
little smoke would count. The law of nuisance is therefore better
suited to such cases.68
Waters and liquids. Trespass law has also proved too inflexible
in many cases involving intruding waters. States differ in their
formal rules about liability for surface waters cast upon the
plaintiff’s land, but, whether on a nuisance theory or not, the
courts’
93
tendency is to permit both parties maximum reasonable use so

that an intrusion of waters is actionable when it is unreasonable or
when independent grounds for strict liability exist, otherwise not.69
If the defendant’s dam breaks, causing downstream flooding, the
defendant may be liable for trespass if he intentionally caused the
waters to enter the plaintiff’s property.70 Otherwise, his liability is
for negligence or nuisance.71
Similarly, courts are likely to hold that the trespass theory
invokes the wrong set of rules for riparian flooding. They instead
incline toward nuisance or negligence theories to invoke rules
requiring proof of unreasonable actions by the defendant or
separate grounds for strict liability.72
Underground liquids that seep into the plaintiff’s soil and cause
harm represent still another category. Although courts sometimes
speak of “trespass” in the underground pollution cases,73 their
actual approach often more closely resembles the reasonableness
approach of nuisance law in which the courts see maximum
freedom for the legitimate interests of both landowners.74 Nuisance
or negligence rather than trespass is definitely the approach courts
take when liquids percolate underground to enter the plaintiff’s
land beneath the surface.75
Possessory interests are not limited to the surface of the land.
Possessory interests may include chattels, structures, and growth
on the land. They also include the right to exclusive possession of
reasonably usable airspace above the ground76 as well as space
below the surface.77 It is a trespass to intrude upon non-navigable
waters upon the land,78 to fire a bullet across it,79 to maintain a
utility line above it,80 or even to extend an arm into the airspace.81
Put the other way around, the owner has the right to the
94
exclusive use of the airspace. She may simply enjoy possession

of the space, or, unless zoning rules or covenants prohibit it, she
may erect tall buildings or sell the airspace.82
Qualifications. Ownership of airspace is qualified by the
traditional rule that intangible intrusions like smoke are not
trespassory.83 It is also qualified somewhat by the practice of
courts to treat natural intrusions of tree limbs or roots under rules
like those for nuisance rather than under the rules of trespass. The
victim of a leafy intrusion may usually lop off the leaf and branch
at the property line, but she has no action for damages based on
the intrusion alone.84
The development of aircraft, especially powered aircraft, raised
substantial questions about airspace rights. The traditional view of
land ownership was expressed as a maxim, cujus est solum ejus est
utque ad coelum, one who owns the surface owns “up to the
heavens.” The statement is a literary view of the law and the
cosmos, not a technical one. No one “possesses” the upper reaches
of airspace, of course, but the maxim clouded all analysis of the
problem. The expansive terms of the maxim herded thought into
two channels: first, the rights of the owner extended infinitely
upward; second, the problem was one of ownership and trespass
law. Neither proposition seems sound. Very low overflights can
interfere with possession; some of them may be close to the simple
trespass paradigm. Sometimes trespass liability has been imposed
or recognized in such cases, at least where the flights actually
interfere with existing possession.85 But most of the problems lie
with higher flights, with the special problems of airport takeoffs
and landings, or with low flights over unoccupied land that
interferes with nothing. For these problem cases, many different
versions of a trespass rule have been developed, but no firm rule
has emerged.86
For most problem flights, the known or foreseeable harm done
to the plaintiff is a better index to the justice of the case than the
mere entry into a column of air. Thus nuisance law, which
explicitly limits the landowner’s rights to reasonable use and
enjoyment,87 is likely to provide better access to appropriate
considerations of justice and policy. A pure trespass analysis would
merely ask whether the plane intruded in the airspace, while
nuisance law is concerned with a reasonable accommodation of the
conflicting interests. Under nuisance rules, some noisy flights
might be actionable even if they don’t actually overfly the
plaintiff’s land, while some less troublesome flights might be
permissible even if they do. Nuisance rules likewise permit degrees
of accommodation, for example, by limiting the number of flights
over the plaintiff’s land rather than barring all of them.88
The Second Restatement purports to address the problem as
one of trespass, but in fact invokes some ideas of nuisance law. It
provides that overflights are trespasses if (a) they are in the
“immediate reaches” of the land and (b) they interfere with use and
95
enjoyment.89 By substituting use and enjoyment for possession,

the Restatement in effect tacitly supports at least a partial
nuisance analysis.90 Nuisance analysis may also conform better to
federal regulations, which define navigable airspace for aviation
purposes and which may be inconsistent with liability for a mere
technical trespass, but consistent with liability for actual
interference with use and enjoyment.91
Subsurface trespass. According to the traditional maxim, the
landowner owns to the depths as well as to the heavens. Just as
intrusions in the immediate airspace above land are trespasses, so
are intrusions immediately below its surface, so long as they are
intended and without permission. If the defendant mines beneath
the plaintiff’s land, he is clearly a trespasser.92 He is also a
trespasser if the foundation of his house projects into the plaintiff’s
land below the surface,93 or his television cable or his sewer lies
beneath the plaintiff’s land.94 In one well-known case, a natural
cave lay beneath the land of both the plaintiff and the defendant.
The only entrance, however, was on the defendant’s land, so that
the plaintiff could not have used the cave at all. Nevertheless, the
defendant was held liable when he used that part of the cave below
the plaintiff’s land.95
Percolation of liquids underground. Subsurface pollution of
water or oil reserves may be regarded as a trespass in some cases.
In a California case,96 the defendant disposed of waste water in a
way that contaminated the plaintiff’s underground oil. This was
regarded as a trespass and actionable on that ground. But
migration or percolation of wastes beneath the surface is often
considered to be in the domain of nuisance law rather than the
domain of trespass.97 Tree roots that penetrate a neighbor’s soil
have also been accorded treatment more in line with the milder
demands of nuisance law.98
Remote intrusions. Remote entries, far underground or far
above it, have become technologically feasible. That feasibility
challenges the traditional rule which suggests infinite extension of
possessory rights above and below the ground just as the airplane
challenged the corresponding rule above ground. It seems likely
that courts will respond pragmatically. A tunnel hundreds of feet
below the surface that does not affect the value
96
of the land or remove minerals probably should not be regarded

as a trespass.99 In one case where the defendant injected industrial
wastes far below the surface of its land and they migrated to a
position below the surface of the plaintiff’s land, the Ohio Supreme
Court denied the plaintiff’s trespass claim, saying that “ownership
rights in today’s world are not so clear-cut as they were before the
advent of airplanes and injection wells.”100
§ 5.8 Remedies
Injunctive Relief
Injunctive relief. Courts will issue injunctions to prevent
trespasses that threaten to continue or to be repeated. Thus an
owner or possessor of property may be able to obtain an injunction
to stop trespassing picketers101 or to force a trespasser to remove a
thing or a substance tortiously placed on the land.102 A person who
constructs a building that encroaches on the plaintiff’s property
may be subject to an injunction ordering him to remove it.103 As is
true with most claims, the plaintiff in a trespass case must
generally prove that the legal remedy of damages is inadequate in
order to obtain an injunction.104
Damages
General principles. More commonly, however, the trespasser is
liable for damages. A plaintiff need not allege a physical harm to
state a trespass claim.105 That means that a trespasser is always
liable to the possessor for at least nominal damages for the
intrusion upon possession.106 So far as he occupies the land, he is
liable for the rental value of its use;107 somewhat similarly, he may
be held for gains he makes directly from use of the land or its
resources.108 He is, of course, liable for other torts he commits in
the course of a trespass.
Harm to rights of physical integrity. For any actual harm done
to the land, or to things or people upon the land, he is also liable to
the possessor or the owner as their interests appear. In the usual
case, his liability is measured by the diminution in value of the
land resulting from the trespass,109 or, in some cases, by the
reasonable costs of making repairs or restoring the land.
The general principle is that “damages may cover the loss or
injury sustained and no more.”110 This means that courts typically
will not allow recovery of the diminution
97
in value if the cost of repairing the property and restoring it to

its original condition amounts to less than that diminution.111
Courts are equally reluctant to approve recovery for repairs or
restoration when costs exceed the amount by which the land’s
value has been diminished.112 But sometimes the excess-repair-
cost recovery is justified, as it usually is in cases of environmental
damage,113 since in those cases the defendant’s tort has caused
harm to others besides the plaintiff and is likely to continue in the
future unless abated.114
Lost use and emotional distress. Damages for trespass can
always include damages for loss of use and for discomfort and
annoyance resulting from the trespass.115 In some cases, the
plaintiff will be entitled to have more general forms of emotional
distress considered in fixing his damages.116 Courts sometimes
begin analysis by stating a “general rule” against recovery for
distress in the absence of physical impact or harm to the plaintiff’s
person,117 but then quickly turn to “exceptions” broad enough to
permit awards in any cases in which emotional distress is
reasonably foreseeable.118 At the other end of the spectrum, some
courts have declared without qualification that emotional distress
damages may be recovered for the trespass.119
The actual results in the cases suggest, however, that courts
neither routinely grant nor routinely deny emotional harm
damages in trespass cases. Emotional harm damages are awarded
generally only when the trespass is more than a transient
passage.120 Courts have approved such damages when the trespass
is repeated or continuing,121 when it threatens physical harm or is
a deliberate or hostile infringement of the plaintiff’s rights,122
when it physically alters or destroys property of aesthetic value123
or afflicts some personal sensibility,124 or when it is accompanied
by some other tort.125
98
Punitive damages.126 Punitive damages may generally be

awarded by the trier of fact only when the defendant has been
guilty of some very serious wrongdoing, often described as malice,
oppression, or wanton misconduct. Casual, transient trespass cases
without other wrongdoing will seldom meet standards for punitive
awards. But deliberate and known trespass, coupled with factors
such as repetition, destruction or taking of property, or other
aggravating elements,127 warrant substantial punitive awards.128
Statutes sometimes prescribe double or treble damages where
timber or minerals are taken.129
§ 5.9 Temporary or Continuing Trespass vs.
Permanent or Completed Trespass
If the defendant’s trespass or nuisance130 continues to cause
harm to the plaintiff’s interests in land, courts usually begin by
classifying the invasion as either permanent (completed) or
temporary (continuing).131
This sounds simple enough. Yet persisting invasions of land
create varied and difficult legal problems that cannot be solved just
by labeling the trespass or nuisance as either temporary or
permanent.132 For instance, if an embankment on the defendant’s
land periodically causes floods on the plaintiff’s land, one question
will be whether to permit or require the plaintiff to sue for each
flooding, or whether to say the plaintiff can or must sue for all
future damages at once. Conflicting decisions and factual variety
make statement of a general rule perilous.133
Damages-rules effects of permanent (or completed) classification.
If the invasion is permanent, courts award damages only once and
assess all future damages in one lawsuit. The permanent or future
damages measure is usually the diminished value of the land
resulting from the invasion.134 Once the defendant has paid
permanent damages, he will not be liable again for the continuance
of the same invasion.
99
If the defendant is the party successfully demanding that

damages be measured by the permanent measure, he is in effect
forcing the plaintiff to make a sale of an interest in the land. If the
plaintiff is the party successfully demanding damages measured by
the permanent measure, she is in effect forcing the defendant to
make a purchase of an interest in the plaintiff’s land.135
Damages-rules effects of temporary (or continuing) classification.
If the invasion is temporary or continuing, it is treated as if it were
renewed daily, with a new trespass or nuisance each day. The
plaintiff may sue for all harms that have occurred to the time of
suit or trial, but may not sue for future harms that would be
incurred only if the trespass continues; that is so because harm
linked directly to continued trespass may terminate at any time
and may never be incurred at all.136 This measure of damages
contemplates the possibility of successive suits.137 After the
plaintiff recovers once, she may sue again for damages that have
occurred since the first suit.138
Classification of an invasion as temporary or continuing does
not give the defendant any permanent rights to continue the
invasion. For that reason, a decision to classify the invasion as
temporary can provide the defendant an incentive to eliminate the
invasion, since if he does so, he will not be liable for damages in the
future.
Example of a permanent invasion. While it is not easy to find
harmony in the case results, some courts would classify an
invasion as permanent, with a single one-time recovery, on facts
similar to this: a city with the power of eminent domain erects a
dam, one effect of which is that water periodically floods parts of
the plaintiff’s land and will continue to do so indefinitely into the
future. The dam is durable. Its physical or factual permanence,
together with the city’s power to condemn a flooding easement in
the plaintiff’s land, suggests that the case should be treated as a
kind of taking of property. The city should be liable to pay all the
damages the plaintiff will ever suffer in one suit. If the value of the
land is worth $10,000 less because of the prospects of flooding, the
city will be liable for that, but never liable again for the same kind
of invasive flooding resulting from the dam.139
Example of a temporary invasion. A temporary or continuing
invasion might take several forms. One might look like this:
defendant parks his truck on the plaintiff’s land and never moves
it. The plaintiff can sue at any time and, having recovered, can sue
again for further damages accruing later. The damages for
temporary or continuing nuisance will not give the plaintiff the
diminished value of the land. That measure assumes that the land
could never recover from the parked truck, but that is absurd.
Instead, the plaintiff could recover damages measured by the harm
suffered up to suit or trial. In this illustration, that is probably the
rental value of the land for truck-parking purposes. When the
invasion is caused, not by a structure, but by the defendant’s
method
100
of operation, courts usually treat the invasion as temporary.140

The fact that the invasion can be abated is central, but not
exclusive, in making that determination.141
Many cases are less clear than these models. A person who
constructs a part of his building on your property may be compelled
to remove it, in which case the trespass is clearly temporary or
continuing.142 But equally, the court might decide that removal is
too costly or wasteful and allow him to keep the structure there,
paying permanent damages.143
Basis for classification. Classification as permanent or
temporary is partly a matter of fact and partly a matter of policy
seemingly governed by a number of factors. The most significant
factors favoring a classification as temporary seem to be:
(1) The invasion can in fact be terminated or abated;144
(2) The cost of termination is not wasteful or
oppressive;145
(3) No privilege or public policy favors a continuation of

the invasion;146
(4) An incentive to abate the invasion can be provided by
permitting repeated suits for damages as they accrue;147
(5) The plaintiff prefers temporary damages;148 and
(6) Overall, it is not just to permit the defendant to
acquire the permanent right to invade the plaintiff’s
interests in land by paying market price for that right
against the plaintiff’s wishes.149
101

Doctrine has it that the trespasser is liable for all physical
harms directly caused by his trespass, not merely those he caused
intentionally or negligently. The Restatement Second says that the
trespasser is subject to liability for harms caused by acts done and
conditions he created on the land, even if he would not have been
liable for such harms had he not been a trespasser.150 And the
trespasser’s liability extends not only to the possessor of land but
also to members of her household. The rule of extended liability for
trespass appears to be the general form of the rule from which the
“transferred intent” rule is logically derived.
Under the extended liability rule, the trespasser may be held
liable for a personal injury innocently caused in the course of a
trespass, as where a trespasser’s truck runs over a child,151 or
where his trespass opens a door which allows a mentally disabled
but apparently normal person to leave and suffer injury,152 or
where his chemicals cause an allergic reaction.153 Or he may be
held responsible for a fire innocently caused in the course of a
trespass.154 Other cases impose a similar liability.155
In line with the common law rules for trespassory torts
generally, courts may distinguish direct from indirect injuries,
allocating the latter to an action on the case. In this view, liability
for trespass would not extend to indirect injuries that were also
unintended and unforeseeable.156 However, some courts have held
the trespasser responsible even for unintended injuries that are
also “indirect.”157
As between a conscious wrongdoer on the one hand and an
innocent possessor or her family on the other, courts are fully
justified in imposing the unexpected loss upon
102
the wrongdoer; that result is not obviously correct in the case of

the trespasser who is innocently mistaken in believing the land is
his or that he has permission to enter it.
________________________________
1 Consent will vitiate a claim for trespass. See, e.g., Lee v. Konrad,
337 P.3d 510 (Alaska 2014); N.L.R.B. v. Calkins, 187 F.3d 1080 (9th Cir.
1999). On consent generally, see Chapter 8.
2 See § 5.8.
3 Crawford v. French, 633 P.2d 524 (Colo. App. 1981) (refusal to
remove materials); Suggs v. Carroll, 76 N.C. App. 420, 333 S.E.2d 510
(1985) (refusal to leave); Restatement Second of Torts § 158 (1965).
4 Brown v. Dellinger, 355 S.W.2d 742 (Tex. Civ. App. 1962);
Restatement Second of Torts § 168 (1965). Consent might be restricted or
conditional as to the area or as to activities on the land.
5 See § 5.6.
6 See § 5.7.
7 For example, in this sentence the term trespass does not mean the
tort of trespass to land but merely entry that is legally actionable on any
ground: “A trespass may arise from an intrusion upon plaintiffs’ land
which is either intentional, negligent or the result of ultrahazardous
conduct.” Lunda v. Matthews, 46 Or. App. 701, 613 P.2d 63, 66 (1980).
Although one may be liable for negligent harm to land, the set of rules that
determine liability are quite different from those that determine trespass
liability.
9 Gross v. Capital Electric Line Builders, 253 Kan. 798, 861 P.2d
1326 (1993); Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 797, 802
(Ct. App. 1991) (“Thus, for example if one … walks upon it, or casts a twig
upon it, or pours a bucket of water upon it, he commits a trespass by the
very act of breaking the enclosure…. The mere entry entitles the party in
possession at least to nominal damages.”).
10 The old common law writ called Trespass directly or indirectly
generated six torts—battery, assault, and false imprisonment on the
personal side, trespass to land, conversion, and trespass to chattels on the
property side. All of those torts entailed a direct application of force; that
is, they invaded or threatened to invade the plaintiff’s physical security of
person or property. See § 2.8.
11 Joseph Koffler & Alison Reppy, Common Law Pleading 155 (1969)
(defendant “with force and arms broke and entered the close of the said
[plaintiff] … and with his feet, in walking, trod down, trampled upon,
consumed, and spoiled the grass and herbage … there growing, and being
of great value, and other wrongs to the said [plaintiff] there did, to the
damages of said [plaintiff] and against the peace of our lord the now
king.”).
12 See Snow v. City of Columbia, 305 S.C. 544, 553, 409 S.E.2d 797,
802 (Ct. App. 1991) (“Although neither deliberation, purpose, motive, nor
malice are necessary elements of intent, the defendant must intend the act
which in law constitutes the invasion of the plaintiff’s right. Trespass is an
intentional tort; and while the trespasser, to be liable, need not intend or
expect the damaging consequence of his entry, he must intend the act
which constitutes the unwarranted entry on another’s land.”).
13 Taft v. Ball, Ball & Brosamer, Inc., 169 Ariz. 173, 818 P.2d 158
(Ct. App. 1991); Restatement Second of Torts § 158 (1965). Early common
law envisioned the plaintiff’s land as an enclosed parcel and required an
entry that “broke the close.”
14 E.g., Houston Lighting and Power Co. v. Sue, 644 S.W.2d 835
(Tex.App. 1982); Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768 (1980).
15 Armitage v. Decker, 218 Cal.App.3d 887, 267 Cal.Rptr. 399 (1990);
see also Ondovchik Family Ltd. P’ship v. Agency of Transp., 187 Vt. 556,
996 A.2d 1179 (2010) (moving snow onto another’s land without consent
can constitute trespass, but defendant was privileged to move snow off
highway onto plaintiff’s land).
16 Metromedia Co. v. WCBM Maryland, Inc., 327 Md. 514, 610 A.2d
791 (1992) (“An occupancy rightful because permissive becomes tortious
when a proper demand to vacate is ignored and it is then the occupants
become trespassers and damages for their wrongful occupancy begin to
accrue.”).
17 For example, grazing cattle on public lands in excess of the
permitted use is viewed as a “trespass.” See John S. Harbison, Hohfeld
and Herefords: The Concept of Property and the Law of the Range, 22
N.M. L. Rev. 459 (1992).
18 See Hector v. Metro Centers, Inc., 498 N.W.2d 113 (N.D. 1993);
Crawford v. French, 633 P.2d 524 (Colo.App. 1981).
19 See, e.g., Baugh v. CBS, Inc., 828 F. Supp. 745, 756 (N.D Cal.
1993).
20 See § 5.8.
21 Miller v. National Broadcasting Co., 187 Cal.App.3d 1463, 232
Cal.Rptr. 668, 69 A.L.R.4th 1027 (1986) (trial court erred in exonerating
intrusive NBC camera crew because it had no malice; intent to enter is
enough); Kopka v. Bell Telephone Co. of Pa., 371 Pa. 444, 91 A.2d 232
(1952); Restatement Second of Torts § 164 (1965). The Restatement
recognizes other mistakes as well and takes the position that none of them
affect the defendant’s liability if he entered the land intentionally. Good
faith of the trespasser usually operates (a) to exclude punitive damages,
see § 5.8, and (b) in the mining context to prevent use of harsh measures of
damages. See Reynolds v. Pardee & Curtin Lumber Co., 172 W.Va. 804,
310 S.E.2d 870 (1983).
22 Farm Bureau Mutual Ins. Co. of Arkansas, Inc. v. Henley, 275
Ark. 122, 628 S.W.2d 301 (1982) (two 6-year-olds); Brown v. Dellinger, 355
S.W.2d 742 (Tex.Civ.App. 1962) (7- and 8-year-olds); Cleveland Park Club
v. Perry, 165 A.2d 485 (D.C.Munc.Ct.App. 1960) (9-year-old).
23 Phillips v. Sun Oil Co., 307 N.Y. 328, 121 N.E.2d 249 (1954).
Inaction, though allegedly certain to lead to landslides from defendant’s
property that would damage homes below, was not enough to count as an
act in Price v. City of Seattle, 106 Wash.App. 647, 24 P.3d 1098 (2001).
24 Smith v. Stone, Style 65, 82 Eng. Rep. 533 (K.B. 1647).
25 Hawke v. Maus, 141 Ind. App. 126, 226 N.E.2d 713 (1967); Smith
v. Pate, 246 N.C. 63, 97 S.E.2d 457 (1957).
26 Malouf v. Dallas Athletic Country Club, 837 S.W.2d 674 (Tex.App.
1992).
27 He may intrude upon the land and since “trespass” can be used
nontechnically to mean intrusion as a matter of fact, it is possible to say
that one negligently trespasses. But such a one is not a trespasser in the
legal sense that the trespass rules apply. The negligent intruder, for
example, is liable only if he causes harm, while the trespasser is liable
whether harm results or not. See Restatement Second of Torts § 165
(1965).
28 E.g, Pennsylvania R. Co. v. City of Pittsburgh, 335 Pa. 449, 6 A.2d
907 (1939). Since the term trespass is sometimes used loosely to mean an
entry upon land or a harm to it, courts occasionally speak of a negligent
trespass, meaning only a negligent entry upon land that causes harm. The
phrase is nonsensical when the term trespass is defined to require intent.
29 See Chapter 32.
30 See §§ 4.2 to 4.5.
31 See City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 931 A.2d
237 (2007); Cover v. Phillips Pipe Line Co., 454 S.W.2d 507 (Mo. 1970).
32 Pegg v. Gray, 240 N.C. 548, 82 S.E.2d 757 (1954). Note that the
defendant might be liable for negligence if he merely took a risk that the
hounds would enter the plaintiff’s lands and if actual harm were inflicted.
Cf. Ream v. Keen, 314 Or. 370, 838 P.2d 1073 (1992) (defendant would be
liable for trespass where he knew smoke from burning field would drift
onto the plaintiff’s property).
33 E.g., Green v. General Petroleum Corp., 205 Cal. 328, 270 P.2d
952, 60 A.L.R. 475 (1928); Mulchanock v. Whitehall Cement Mfg. Co., 253
Pa. 262, 98 A. 554 (1916).
34 See § 32.6.
35 Even the older cases extend strict liability to personal injuries on
a public highway when they resulted from blasting. Sullivan v. Durham,
161 N.Y. 290, 55 N.E. 923 (1900).
36 The most significant possibility for strict liability based on
trespass (as distinct from that based on grounds of abnormally dangerous
activity) arises under the extended liability rule discussed in § 58.
37 Other tort rules affecting rights in real property include ejectment
(which gives the plaintiff possession of the land from a trespasser who has
gone into possession and allows for recovery of mesne profits, see 1 Dan B.
Dobbs, Law of Remedies §§ 4.2(2), 5.8(2), 5.10(1) (2d ed. 1993)), negligence,
and federal civil rights laws (where the trespass is committed under color
of state law), see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d
492 (1961), overruled on other grounds, Monell v. Dep’t of Soc. Servs. of
City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
38 See Chapter 30.
39 See Restatement Second of Torts § 821D, cmt. e (1979); Cook v.
DeSoto Fuels, Inc., 169 S.W.3d 94 (Mo. App. 2005) (“[W]hile there are
differences between a trespass and a nuisance cause of action, the two are
neither mutually exclusive nor inconsistent. Thus where the elements of
both actions are fully present, plaintiffs may choose to proceed upon one or
both theories.”); Traver Lakes Community Maintenance Ass’n v. Douglas
Co., 224 Mich.App. 335, 568 N.W.2d 847 (1997) (“claims of trespass and
nuisance are difficult to distinguish and include overlapping concepts”).
40 E.g., Canton v. Graniteville Fire Dist. No. 4, 171 Vt. 551, 762 A.2d
808 (2000) (release of water from quarry onto landowner’s property both a
trespass and a nuisance).
41 E.g., Wilson v. Interlake Steel Co., 32 Cal.3d 229, 649 P.2d 922,
185 Cal.Rptr. 280 (1982) (intrusion of noise waves not a trespass but might
be a nuisance).
42 Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959)
(“The same conduct on the part of a defendant may and often does result
in the actionable invasion of both of these interests” and thus constitutes
both a nuisance and a trespass); Rancho Viejo, LLC v. Tres Amigos Viejos,
LLC, 100 Cal.App.4th 550, 123 Cal.Rptr.2d 479 (2002) (“Thus, many
activities will give rise to liability both as trespass and a nuisance, if they
result in the violation of a person’s right of exclusive possession of the
land, and also constitute an unreasonable and substantial interference
with the use and enjoyment of land.”).
43 See Babb v. Lee Cnty. Landfill SC, LLC, 405 S.C. 129, 747 S.E.2d
468 (2014).
44 See § 5.5.
45 Some tangible entries, such as those by water, may be actionable
as nuisances where they interfere with use and enjoyment of land. See §
5.5 and Chapter 30.
46 See Wilson v. Interlake Steel Co., 32 Cal.3d 229, 649 P.2d 922, 185
Cal.Rptr. 280 (1982) (“noise waves that are merely bothersome and not
damaging … must be dealt with as a nuisance” and cannot constitute a
trespass because it is an intangible intrusion).
47 See § 5.5.
48 See § 5.6.
49 See §§ 5.5 & 30.2. Indeed, some courts have asserted that on such
facts the “law of trespass and the law of nuisance come very close to
merging.” Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959).
50 E.g., Allred v. Harris, 14 Cal.App.4th 1386, 1390, 18 Cal.Rptr.2d
530, 533 (1993).
51 The main issue in many cases, including trespass cases, is the
measure of damages for physical harm to land or severance of minerals or
timber. E.g., Dethloff v. Zeigler Coal Co., 82 Ill.2d 393, 412 N.E.2d 526
(1980) (coal).
52 City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 931 A.2d 237
(2007).
53 Indian Bayou Hunting Club, Inc. v. Taylor, 261 So.2d 669 (La.
App. 1972); Neilan v. Braun, 354 N.W.2d 856 (Minn. App. 1984).
54 Spring Valley Estates, Inc. v. Cunningham, 181 Colo. 435, 438,
510 P.2d 336, 338 (1973) (“from the beginning of his possession period, an
adverse possessor has an interest in a given piece of property enforceable
against everyone except the owner or one claiming through the owner.”);
Myrick v. Bishop, 8 N.C. 485, 486 (1821).
55 E.g., Waters v. Dennis Simmons Lumber Co., 154 N.C. 232, 70
S.E. 284 (1911).
56 See P & A Construction, Inc. v. Hackensack Water Co., 115 N.J.
Super. 550, 280 A.2d 497 (1971); see also Greenpeace, Inc. v. Dow
Chemical Co., 97 A.3d 1053 (D.C. 2014) (plaintiff had no possessory
interest in common trash and recycling areas of office building in which it
was a tenant and thus could not maintain a trespass claim).
57 Smith v. Cap Concrete, 133 Cal.App.3d 769, 184 Cal.Rptr. 308
(1982).
58 See § 5.10.
59 See AmSouth Bank, N.A. v. City of Mobile, 500 So.2d 1072 (Ala.
1986).
60 See § 7.8.
61 Since 1381, with the statute of 5 Richard II, c. 8.
62 See § 7.13.
63 Removal of lateral or subjacent support subjects the defendant to
strict liability as well as to liability for negligence. See Restatement
Second of Torts §§ 817 to 821 (1979).
64 Nida v. American Rock Crusher Co., 253 Kan. 230, 855 P.2d 81
(1993).
65 See, e.g., Babb v. Lee Cnty. Landfill SC, LLC, 405 S.C. 129, 747
S.E.2d 468 (2013). The “intrusion” of airborne particulates onto land has
caused something of a split among courts with respect to classification of
the claim. Compare, e.g., Johnson v. Paynesville Farmers Union Co-op. Oil
Co., 817 N.W.2d 693 (Minn. 2012) (pesticide drift did not constitute a
trespass, because trespass requires an intrusion by “people or tangible
objects”) with Borland v. Sanders Lead Co., 369 So.2d 523 (Ala. 1979)
(allowing trespass claim where intangible invasion causes substantial
damage to plaintiff’s property).
66 San Diego Gas & Elec. Co. v. Superior Court, 13 Cal.4th 893, 920
P.2d 669, 55 Cal.Rptr.2d 724 (1996) (to permit trespass as distinct from
nuisance action, there must be a “deposit of particulate matter upon the
plaintiffs’ property or an actual physical damage thereto,” hence intrusion
of electrical fields without damage is not a trespass).
67 Public Service Co. of Colorado v. Van Wyk, 27 P.3d 377 (Colo.
2001), gave this as one reason for insisting that intangible invasions would
be actionable as trespasses only if they produced harm to the land, not
merely interference with use and enjoyment. Accord, Larkin v. Marceau,
184 Vt. 207, 959 A.2d 551 (2008).
68 See Chapter 30. Under the law of nuisance, courts could reject
liability for, say, smoke that blows across the plaintiff’s land, if the smoke
did not much interfere with the plaintiff’s enjoyment and if it would be
costly or difficult for the defendant to avoid it; at the same time, it could
impose liability if the smoke operated as a substantial and serious
interference.
69 Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977). States
use three different formal doctrines. (1) The common enemy rule treats
unwanted surface waters as a common enemy, so that each landowner is
free to dispose of them as best he can. (2) The civil law rule is largely the
reverse; no landowner is free to alter natural drainage. These two rules
are often modified in practice and at times tend to resemble (3) the
reasonable use rule under which landowners are free to alter their own
natural drainage to the plaintiff’s detriment until that alteration causes
unreasonable interference. See Janet Fairchild, Annotation, Modern
status of rules governing interference with drainage of surface waters, 93
A.L.R.3d 1193 (1979).
70 Cf. Canton v. Graniteville Fire Dist. No. 4, 171 Vt. 551, 762 A.2d
808 (2000) (an upper property owner who intentionally changes the flow of
surface water passing onto lower lands may be found liable for trespass in
a suit by the lower landowner).
71 See Cooper v. Horn, 248 Va. 417, 448 S.E.2d 403 (1994).
72 Ellis v. Alabama Power Co., 431 So.2d 1242 (Ala. 1983) (dam
operator discharging waters in accord with Corps of Engineers flood
control plan; liability for release of water must be predicated upon
negligence, not trespass); Kunz v. Utah Power & Light Co., 117 Idaho 901,
792 P.2d 926 (1990).
73 E.g., Cassinos v. Union Oil Co. of California, 14 Cal.App.4th 1770,
18 Cal.Rptr.2d 574 (1993).
74 The Restatement treats interference with the flow of surface
waters as a nuisance issue, not a trespass issue. Restatement Second of
Torts § 833 (1979). Interference with one’s rights to use water of course
raises an entirely different issue. See Id. §§ 850–864. Water rights are now
an important form of property law and subject to considerable regulation.
75 See, e.g., Norman v. Greenland Drilling Co., 403 P.2d 507 (Okla.
1965).
76 See generally Robert R. Wright, The Law of Airspace (1968).
78 Steel Creek Development Corp. v. James, 58 N.C.App. 506, 294
S.E.2d 23 (1982).
79 Whittaker v. Stangvick, 100 Minn. 386, 111 N.W. 295 (1907).
80 United States v. Gates of the Mountains Lakeshore Homes, Inc.,
732 F.2d 1411 (9th Cir. 1984).
81 Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).
82 The fee in land may be divided by the owner, who can sell airspace
above it or interests in minerals below the surface. See Cheape v. Town of
Chapel Hill, 320 N.C. 549, 359 S.E.2d 792 (1987) (air rights).
83 See § 5.5.
84 The remedy is usually limited to self-help of the limb-lopping
variety, although there may be liability for nuisance where actual harm is
proved. See Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002).
85 Hinman v. Pacific Air Lines Transport, 84 F.2d 755 (9th Cir.
1936); United States v. Gaidys, 194 F.2d 762 (10th Cir. 1952).
86 See Colin Cahoon, Comment, Low Altitude Airspace: A Property
Rights No-Man’s Land, 56 J. Air L. & Com. 157 (1990) (summarizing
several theories).
87 See Chapter 30.
88 See Atkinson v. Bernard, Inc., 223 Or. 624, 355 P.2d 229 (1960).
90 Courts in fact have often seemed to confuse the concepts and the
rules attached to each. See Robert R. Wright, The Law of Airspace 164
(1968).
91 See Jack L. Litwin, Annotation, Airport operations or flight of
aircraft as nuisance, 79 A.L.R.3d 253 (1977).
92 Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419
(1990); Maye v. Yappen, 23 Cal. 306 (1863) (gold mine). Rights in
underground waters, petroleum, and gas are now frequently regulated by
statute in ways that change the traditional rights, often in favor of
conservation for mutual advantage.
93 509 Sixth Avenue Corp. v. New York City Transit Authority, 15
N.Y.2d 48, 203 N.E.2d 486, 255 N.Y.S.2d 89, 12 A.L.R.3d 1258 (1964).
94 Neely v. Coffey, 81 Ill.2d 439, 410 N.E.2d 839 (1980).
95 Edwards v. Lee’s Adm’r, 265 Ky. 418, 96 S.W.2d 1028 (1936)
(defendant made commercial use of the cave; the plaintiff was permitted to
recover the profits resulting from the underground trespass). As to profits
award, the case was overruled or limited in Triple Elkhorn Min. Co. v.
Anderson, 646 S.W.2d 725 (Ky. 1983).
96 Cassinos v. Union Oil Co. of California, 14 Cal.App.4th 1770, 18
Cal.Rptr.2d 574 (1993).
97 Cambridge Water Co. Ltd. v. Eastern Counties Leather, [1994] 2
W.L.R. 53, [1994] 1 All ER 53 (H.L.) (migration of chemical wastes from a
tannery polluted the plaintiff’s water wells many miles away; this was
regarded as a potential nuisance, although no liability was imposed).
98 Cannon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (Ct. App. 1985);
Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct. App. 1989); see also
Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002) (holding that the
remedy was not limited to self-help where a nuisance is established by
proof of harm or imminent harm).
99 Cf. Application of Gillespie, 173 Misc. 591, 17 N.Y.S.2d 560 (Sup.
Ct. 1940) (tunnel 500 feet below ground, nominal damages only).
100 Chance v. BP Chemicals, 77 Ohio St.3d 17, 670 N.E.2d 985 (1996).
The court used the language of trespass but it required the kind of
substantial injury usually associated with nuisance claims.
101 E.g., Church of Christ in Hollywood v. Superior Court, 99
Cal.App.4th 1244, 121 Cal.Rptr.2d 810 (2002); Charleston Joint Venture v.
McPherson, 308 S.C. 145, 417 S.E.2d 544 (1992).
102 E.g., West Town Plaza Assocs. v. Wal-Mart Stores, Inc., 619 So.2d
1290 (Ala. 1993); Walsh v. Johnston, 608 A.2d 776 (Me. 1992).
103 Rose Nulman Park Foundation v. Four Twenty Corp., 93 A.3d 25
(R.I. 2014).
104 See, e.g., Lambert v. Holmberg, 271 Neb. 443, 712 N.W.2d 268
(2006).
105 E.g., College of Charleston Foundation v. Ham, 585 F.Supp.2d 737
(D.S.C. 2008).
106 Neely v. Coffey, 81 Ill.2d 439, 410 N.E.2d 839 (1980); Gross v.
Capital Electric Line Builders, Inc., 253 Kan. 798, 861 P.2d 1326 (1993).
Nominal damages are damages in name only, usually $1 or six cents, but
such an award likely makes the plaintiff a “prevailing party” entitled to
recover statutory costs.
107 Scribner v. Summers, 138 F.3d 471 (2d Cir. 1998).
108 1 Dan B. Dobbs, Law of Remedies § 5.9 (2d ed. 1993).
109 See Id., § 5.2; Smith v. Carbide and Chem. Corp., 226 S.W.3d 52
(Ky. 2007).
110 Estate of De Laveaga, 50 Cal.2d 480, 326 P.2d 129 (1958).
111 See Starrh and Starrh Cotton Growers v. Aera Energy LLC, 153
Cal.App.4th 583, 63 Cal.Rptr.3d 165 (2007); but see Gilbert Wheeler, Inc.
v. Enbridge Piplelines (East Texas), L.P., 449 S.W.3d 474 (Tex. 2014)
(allowing recovery of intrinsic value of trees cut by defendant where the
diminution of market value was de mimimis).
112 Id. See also Poffenbarger v. Merit Energy Co., 972 So.2d 792 (Ala.
2007).
113 E.g., Davey Compressor Co. v. City of Delray Beach, 639 So.2d 595
(Fla. 1994).
114 See Dan B. Dobbs, Law of Remedies § 5.2(5) (2d ed. 1993).
115 Restatement Second of Torts § 929(1)(c) (1979).
116 Britt Builders, Inc. v. Brister, 618 So.2d 899 (La.App. 1993)
(“Anguish, humiliation, and embarrassment are appropriate
considerations.”).
117 E.g., Valley Development Co. v. Weeks, 147 Colo. 591, 364 P.2d
730 (1961).
118 Indeed, the “exception” stated is often only the requirement that
the harms claimed be the natural or foreseeable result of the trespass.
E.g., Douglas v. Humble Oil & Refining Co., 251 Or. 310, 445 P.2d 590
(1968).
119 Mest v. Cabot Corp., 449 F.3d 502 (3d Cir. 2006); Armitage v.
Decker, 218 Cal.App.3d 887, 267 Cal.Rptr. 399 (1990).
120 In fact, lawyers often attempt to claim emotional distress damages
in trespass to land cases by alleging an independent tort, such as
intentional or negligent infliction of mental distress.
121 E.g., McGregor v. Barton Sand & Gravel, Inc., 62 Or.App. 24, 660
P.2d 175 (1983) (spillage of pond water onto plaintiff’s lower land and
threat of landslides over a long period of time).
122 E.g., Tran v. General Motors Acceptance Corp., 1989 WL 64564
(E.D. Pa. 1989) (aggressive effort to repossess a car).
123 Pearce v. L.J. Earnest, Inc., 411 So.2d 1276 (La. App. 1982)
(ornamental trees); Phillips v. Town of Many, 538 So.2d 745 (La. App.
1989) (road crew altered plaintiff’s property over her repeated protests).
124 Jefferies v. Bush, 608 So.2d 361 (Ala. 1992) (“Unless the trespass
is attended with words or acts of insult or contumely, damages for mental
anguish are not recoverable.”).
125 See, e.g., Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991) (trespass
accompanied by intimidating conduct and an assault).
126 On punitive damages generally, see § 34.4; 1 Dan B. Dobbs, Law of
Remedies § 3.11 (2d ed 1993).
127 See Sebra v. Wentworth, 990 A.2d 538 (Me. 2010) (punitive
damages award affirmed where defendants continued to traverse
plaintiff’s property despite a court ruling that they had no easement).
128 E.g., Hamilton Development Co. v. Broad Rock Club, Inc., 248 Va.
40, 445 S.E.2d 140 (1994) (defendant’s blatant recklessness in seizing a
neighbor’s land, clearing it, grading it, and appropriating it for its own use
warranted punitive damages of $200,000).
129 See 1 Dan B. Dobbs, Law of Remedies § 5.3(3) (2d ed. 1993).
130 For nuisance cases, see § 404 (discussing remedies).
131 See Hoery v. United States, 64 P.3d 214 (Colo. 2003); Town of
Oyster Bay v. Lizzo Indus., Inc., 22 N.Y.3d 1024 (2013); Restatement
Second of Torts § 930 (1979).
132 Determining the proper measure of damages is the main issue.
Other matters that may be determined by the classification include: (1)
whether the statute of limitations has run on the entire claim or only on
the claims for harms done outside the statutory period, see, e.g, Cook v.
DeSoto Fuels, Inc., 169 S.W.3d 94 (Mo.App. 2005); (2) whether more than
one suit can be brought (res judicata issues); (3) whether the plaintiff as a
purchaser of the land has standing to sue for the invasion or whether the
owner at the time of the invasion has standing instead. See, e.g., Vaughn
v. Missouri Public Service Co., 616 S.W.2d 540 (Mo.App. 1981).
133 Courts do not appear to agree even on the definition of the terms.
Some authority insists that only the defendant’s act, not the harm, is to be
considered in determining “temporary” vs. “permanent,” at least in
determining when the statute of limitations begins to run. See, e.g.,
Brandt v. Cnty. of Pennington, 827 N.W.2d 871 (S.D. 2013). Under this
view, categorization as temporary or permanent does not determine the
outcome; the categorization merely expresses the fact that a series of
individual acts of trespass has taken place (“continuing”) or that the
trespass has ceased (“permanent”). See Breiggar Properties, L.C. v. H.E.
Davis & Sons, Inc., 52 P.3d 1133 (Utah 2002).
134 Starrh and Starrh Cotton Growers v. Aera Energy LLC, 153
Cal.App.4th 583, 63 Cal.Rptr.3d 165 (2007); Mel Foster Co. Properties,
Inc. v. American Oil Co., 427 N.W.2d 171 (Iowa 1988).
135 The effect is to force a sale of a limited interest in the land, the
right to pollute or continue a trespass. Subject to this limit, it is analogous
to the remedy in conversion. See § 6.14.
136 E.g., City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 931
A.2d 237 (2007); Baker v. Burbank-Glendale-Pasadena Airport Authority,
39 Cal.3d 862, 705 P.2d 866, 218 Cal.Rptr. 293 (1985); Webb v. Virginia-
Carolina Chemical Co., 170 N.C. 662, 87 S.E. 633 (1916).
137 The need to bring successive actions may be seen as rendering the
legal remedy of damages inadequate, thus allowing injunctive relief. See,
e.g., Lambert v. Holmberg, 271 Neb. 443, 712 N.W.2d 268 (2006).
138 E.g., City of Holdenville v. Kiser, 195 Okla. 189, 156 P.2d 363
(1945).
139 Town of Troy v. Cheshire R.R., 23 N.H. 83 (1851).
140 E.g., Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W.2d 435
(1942); Webb v. Virginia-Carolina Chemical Co., 170 N.C. 662, 87 S.E. 633
(1916).
141 See Spar v. Pacific Bell, 235 Cal.App.3d 1480, 1 Cal.Rptr.2d 480
(1991); Mel Foster Co. Properties, Inc. v. American Oil Co., 427 N.W.2d
171 (Iowa 1988).
142 See Rose Nulman Park Foundation v. Four Twenty Corp., 93 A.3d
25 (R.I. 2014).
143 See Kratze v. Independent Order of Oddfellows, Garden City
Lodge No. 11, 442 Mich. 136, 500 N.W.2d 115 (1993).
144 E.g., Mangini v. Aerojet-General Corp., 12 Cal.4th 1087, 912 P.2d
1220, 51 Cal. Rptr. 2d 272 (1996); Knight v. City of Missoula, 252 Mont.
232, 827 P.2d 1270 (1992).
145 If the defendant can efficiently terminate the invasion it is not
unfair to expect him to do so or to be liable in successive actions as long as
he permits the invasion to continue. Where the converse is true, and
abatement of the invasion and the harm is extremely costly compared to
alternatives, the defendant may in effect be permitted to purchase the
right to continue the invasion by paying permanent damages. See Kratze
v. Independent Order of Oddfellows, Garden City Lodge No. 11, 442 Mich.
136, 500 N.W.2d 115 (1993).
146 When the invasion could be considered the exercise of eminent
domain power, the invasion can be considered to be an informal taking by
the defendant, who is entitled by statute to acquire the right by paying its
value. See Spaulding v. Cameron, 38 Cal.2d 265, 239 P.2d 625 (1952). If a
defendant who lacks the power of eminent domain purposefully tries to
acquire rights in the plaintiff’s land by the invasion (rather than by
bargaining), courts are more likely to issue an injunction to require
termination of the invasion and hence more likely to treat the invasion as
temporary.
147 See Mangini v. Aerojet-General Corp., 12 Cal.4th 1087, 1103, 912
P.2d 1220, 1229, 51 Cal.Rptr.2d 272, 281 (1996). Temporary damages do
not invariably furnish incentives for avoiding further harm. Where they
are not, this factor does not counsel classification as a temporary nuisance.
148 When it is the defendant’s preference for temporary damages,
other factors may counsel holding for the defendant, but not the
defendant’s preference alone. When it is the plaintiff’s preference for
temporary damages, that is a strong factor in favor of the temporary
measure simply because the plaintiff is the victim, not the perpetrator of
the tort. This is equivalent to saying that the plaintiff should usually have
the power to elect a temporary damages measure. If the defendant has a
power of eminent domain with respect to the interest involved, or wasteful
costs would be imposed by temporary damages, the plaintiff’s preference
might be disregarded.
149 This factor in effect imports the factors used in conversion cases,
where the issue is quite similar. In those cases, the defendant who
interferes with possession of the plaintiff’s chattel is or is not required to
“buy” the chattel, depending ultimately upon the justice of forcing him to
do so under the circumstances. This is turn is analyzed by considering a
number of factors, such as the extent of interference and the defendant’s
consciousness of wrongdoing. See § 6.6.
151 St. Petersburg Coca-Cola Bottling Co. v. Cuccinello, 44 So.2d 670
(Fla. 1950) (child struck by trespasser’s truck; lack of fault no defense
since he was a trespasser).
152 Keesecker v. G.M. McKelvey Co., 141 Ohio St. 162, 47 N.E.2d 211
(1943) (defendant’s agent delivered a package at the wrong house; his
entry allowed a mentally disabled but apparently normal child to get out
and be injured).
153 Cf. Brabazon v. Joannes Bros., 231 Wis. 426, 286 N.W. 21 (1939)
(demonstrating fly spray over the plaintiff’s objection, plaintiff became ill
from it).
154 Wyant v. Crouse, 127 Mich. 158, 86 N.W. 527 (1901); Lee v.
Stewart, 218 N.C. 287, 10 S.E.2d 804 (1940); cf. Brown v. Dellinger, 355
S.W.2d 742 (Tex.Civ.App. 1962) (7–8 year-old boys intentionally started
fire in charcoal grill; the fire got out of hand and burned the garage and
house; since the boys were trespassers, they were liable for $28,000 in
damages resulting from the unintended spread of the fire).
155 See Williams v. River Lakes Ranch Development Corporation, 41
Cal.App.3d 496, 116 Cal.Rptr. 200 (1974) (strict liability for cattle trespass
and also liability for cattle’s “foreseeable” injury to owner); Beavers v.
West Penn Power Co., 436 F.2d 869 (3d Cir. 1971) (poles carrying high
tension wires tilted over the years and may have hung over the land of
another; if the defendant’s wires were trespassing objects, the defendant
would be liable for death of a child who came in contract with the wires).
156 Connolley v. Omaha Pub. Power District, 185 Neb. 501, 177
N.W.2d 492 (1970); cf. Wawanesa Mutual Insurance Co. v. Matlock, 60
Cal.App.4th 583, 70 Cal.Rptr.2d 512 (1997) (one smoking and trespassing
teenager accidentally set a fire; his fellow trespasser, who had furnished
the cigarette, was not liable).
157 Kopka v. Bell Telephone Co. of Pa., 371 Pa. 444, 91 A.2d 232
(1952) (telephone company was responsible for a hole dug on the plaintiff’s
land; the plaintiff, hearing of the hole, went looking for it and fell in; the
defendant was held liable). The Kopka court recognized a limitation,
however: “[I]f the owner or possessor of the land, willfully, voluntarily, or
by negligence, himself brings about the injury to his person, such an injury
cannot be said to be consequent upon the trespass to the land, and in that
event the trespasser would not be liable therefor.”
103
Chapter 6
INTENTIONAL INTERFERENCE WITH

TANGIBLE PERSONAL PROPERTY:
TRESPASS TO CHATTELS AND
CONVERSION
Analysis
§ 6.1 Development of Liability for Interference with Chattels
§ 6.3 Conversion of Chattels—Elements and Issues
§ 6.7 Methods of Committing Conversion—Generally
§ 6.10 Contract and Tort: Conversion and the Bailment Contract
§ 6.11 The Bailor’s Option to Sue “In Tort” or “In Contract” and the
Economic Loss Rule
§ 6.12 The Bona Fide Purchaser of Converted Tangible Goods
§ 6.13 The Bona Fide Purchaser of Converted Money or Checks
__________
§ 6.1 Development of Liability for Interference

with Chattels
Two sets of variables were important in the early development
of liability for interference with chattels.
(a) Taking vs. retention. On one axis of the common law rules
lay the case of a defendant who wrongfully took a chattel from the
plaintiff who was entitled to it. On an entirely different axis lay the
case of a defendant who had rightful possession of the plaintiff’s
chattel, say a horse the defendant had agreed to feed, but refused
to return the chattel on demand. To early common lawyers these
two cases were quite different.
(b) Transitory vs. substantial. The common law also drew a
distinction between a transitory and inconsequential harm or
taking, and a permanent or substantial deprivation of the
plaintiff’s rights on the other—that is, between the case of a
defendant who pets your horse although you have forbidden it and
the case of the defendant who steals your horse and rides him to
exhaustion. This distinction remains of importance today.
The Trespass writ. These variables—taking vs. keeping on the
one hand, and minor vs. substantial interference on the other—led
to the use of different common law writs depending on the facts of
the case. The simplest case was an intentional taking or
104
damage to a chattel. Because the taking was physical

(“forcible”) and direct, the writ of Trespass could be used to recover
damages.1 This form of trespass was called Trespass de bonis
asportatis, that is, for the taking of goods.
The Detinue background. However, the defendant might not
take the chattel at all. He might be a bailee—a person who
rightfully possessed the chattel but did not own it. A borrower is a
bailee; so is someone who is paid to care for the chattel. If the
bailee refused to return the chattel upon demand, he was not guilty
of a trespass because he had not wrongfully taken it. In this
situation the plaintiff could use Detinue. But Detinue had
attributes different from Trespass. In Detinue the defendant had
the option of either paying for the chattel or returning it.2 So if he
had damaged the chattel he could return it and thus escape
liability. The plaintiff could not recover the damages by then
invoking Trespass, so Detinue might prove to be quite inadequate
for the plaintiff. A second disadvantage in Detinue was that the
defendant could also opt to have the case tried by wager of law.
This meant that the defendant could defeat the claim altogether if
he could produce a specific number of oath-helpers, that is, persons
who would swear that the defendant was generally a truthful
person.3
Action on the Case for Trover develops. Because neither
Trespass nor Detinue was a wholly satisfactory solution for the
plaintiff, and left gaps in which no remedy at all was found,
plaintiffs’ lawyers eventually succeeded in developing an action of
Trespass on the Case for Trover. Trover was a word that had been
earlier used in certain Detinue cases. The allegation in the new
Trover action was that the defendant had found the goods
belonging to the plaintiff. The allegation of a finding was a happy
fiction. It negated both trespass and bailment and hence left the
way open for an action on the case,4 because the bare allegation of
finding was enough and the plaintiff was never required to prove
it.5 The allegation went on to say that the defendant, having found
the goods, “converted them to his own use,” that is, kept them or
altered them or sold them and retained the money.6
Trespassory and non-trespassory claims combined in one action.
With the advent of the action on the case for trover, both the
taking and wrongful detention cases could be redressed by the
single tort we today call conversion. Conversion’s parentage—part
105
Trespass, part Case—helps explain the fact that it sometimes

seems trespassory and sometimes not. Although there is now one
tort of conversion rather than several writs, the two major settings
for that tort remain important. Failure-to-return cases—the second
setting—raise problems that are not much like the problems raised
in the taking cases. The writs are gone, but the factual skeleton on
which they once hung still remains.
Substantial vs. insubstantial interference. What of the
distinction between substantial and insubstantial interferences?
On this point, the development of Trover also had its effects.
Trespass had originally been dedicated to the physical taking
cases, but at least by the 1840s, Trespass had become the
repository for claims of less substantial interference or damage.7
Substantial interference cases were redressed in Trover, that is, by
the tort known as conversion. The difference was that Trespass
permitted the plaintiff to recover actual damages, but Trover
allowed the plaintiff to recover the full value of the chattel; it was
in effect a forced sale. That remains the law today.
The tort of trespass to chattels is committed by intentionally
interfering with the plaintiff’s possession in a way that causes
legally cognizable harm. The defendant may interfere with the
chattel by interfering with the plaintiff’s access or use8 or by
causing actual harm to the chattel.9 As the term chattel implies,
the tort aims to protect interests in tangible property. Some recent
cases have extended the tort to protect computer systems from
electronic invasions by way of unsolicited bulk email or the like, or
hacking into a computer.10
The intent required to establish the tort of trespass to chattels
is familiar from the trespass to land and conversion cases. It is
enough if the defendant had an intent to act upon the property; if
his interference is substantial enough, he is liable even though he
had no intent to harm or even to invade another’s interests.11 On
the other hand, he is not liable for trespass to chattels if he never
intended to touch or affect it at all and does so only accidently, as
where a contractor excavating land strikes a buried telephone
cable.12
Direct vs. indirect interference. Trespass was the proper form of
action under earlier common law only when the interference with
land, chattel, or person was direct and physical. Under this rule,
the defendant who locked the door to a room where the plaintiff’s
goods were located might not be guilty of a trespass, although he
might be liable in an action on the case for the intentional
interference.13 The forms of action have long since been abolished,
so the distinction between trespass and case (as forms of action)
are no longer important. The defendant who places poisoned meat
before the plaintiff’s dog, intending that the dog will eat it, is no
doubt liable if the dog does eat, even though he does not put the
meat in the dog’s mouth or otherwise touch the dog.
106
With the abolition of the forms of action, it is not confusing to

call the defendant’s tort a trespass where he has caused physical
harm or physical interference with the owner’s rights.14 Although
the “direct” nature of the interference no longer seems important,
the physical nature of the interference remains important. In the
absence of physical interference or effects, the plaintiff will
normally only suffer pure economic loss, and in that case, the
economic loss rules may bar the tort claim, at least where the
parties are in a contractual relationship.15
Possession. Trespass to chattels parallels trespass to land on
some issues and not on others. Although physical interference is
required, direct harm has become less important and so has
possession. So if the defendant intentionally harms a chattel that
the owner has loaned or leased to someone else, the owner is not in
possession, but he has an action if his interests in the chattel are
adversely affected.16 In this respect the trespass to chattel rules
resemble those for trespass to land.
Harm or dispossession required. Trespass to chattels differs
from trespass to land in one important respect. An intended entry
upon land is a trespass whether it is harmful or not. An intended
touching of a chattel is not. To establish liability for trespass to
chattels, the possessor must show legally cognizable harm.17
Types of cognizable harm. Three kinds of harm are sufficient to
make a trespass to chattel claim actionable. These are: (1) actual
dispossession, which implies that the plaintiff’s access to the
chattel is barred or substantially limited for something more than
a few moments;18 (2) physical harm to the chattel; or (3) physical
harm to the plaintiff or to someone or something in which the
plaintiff had a legal interest.19 Intrusion by unwanted commercial
calls has been held insufficient to meet criteria like these.20 Nor
does the plaintiff’s emotional distress count as physical harm for
this purpose; a trespass to chattels does not become actionable
merely because it causes emotional distress,21 although infliction of
emotional distress may sometimes be actionable as some other
tort.22 Similarly, use of data about the plaintiff may interfere with
the plaintiff’s right of privacy or justify an unjust enrichment
claim, but is not a conversion of the information under traditional
rules.23 However, some courts have permitted conversion actions
for using or broadcasting the plaintiff’s information.24
Consequential damages. Any of the three types of recognized
harm that trigger the trespass to chattel action may cause
additional harmful consequences such as business
107
losses that occur before the chattel can be recovered or replaced.

In the absence of dispossession or physical harm, business losses
would not qualify as harms that would suffice to trigger the
trespass to chattels action. However, if dispossession or physical
harm is demonstrated, there is no reason to deny the plaintiff
recovery of economic losses as consequential damages, provided the
damages are adequately proven and causation is shown. Although
some courts were traditionally negative about full recovery of
losses in conversion cases,25 where consequential or “special”
damages are foreseeable, adequately proven and can be assessed
without duplicating awards, there is no reason today to reject such
damages if the cause of action itself is established.26 Courts now in
fact approve such awards.27
Substantial interference. If the defendant’s interference with the
chattel is substantial, amounting to an exercise of ownership rights
or “dominion” over the chattel, the plaintiff may have an option to
claim either trespass to chattels or conversion.28 As the following
sections indicate, however, the interference must be quite
substantial to justify the conversion claim, which in effect forces
the defendant to buy the chattel.
§ 6.3 Conversion of Chattels—Elements and
Issues
The basic conversion case. The tort of conversion, derived from
the writ of Trover,29 redresses the plaintiff’s possessory rights in
personal property when the defendant intentionally exercises a
substantial dominion over the property, interfering seriously with
the plaintiff’s rights.30 Although the defendant need not act in bad
faith, he must intentionally exercise control over the property;
transient interference does not qualify. On the other hand, the
defendant who exercises significant control over the property is a
converter even though he himself gains nothing from the property
or his control over it.31 The property itself must be tangible or at
least the legal equivalent of tangible property, as where tangible
property is tightly controlled by documents of title or other legal
instruments.32 If conversion is established, the defendant is subject
to liability for the value of the chattel converted unless the plaintiff
accepts its return.33
Examples. (1) White steals Green’s watch, worth $500 at the
time. He later sells it. White is a converter and liable for the $500.
(2) Jones steals Smith’s watch, but wears the watch for a year
before Smith discovers the facts. Jones is a converter. A sale of the
watch is not necessary to establish conversion. (3) Moore takes
Lester’s watch, intending to use it without Lester’s knowledge to
impress a potential employer and then return it the next day.
However, Moore is in a motor vehicle accident and the watch is
damaged beyond repair. Moore is a converter; although he did not
intend permanent deprivation
108
or any damages, he did intend to interfere, and his interference

actually caused permanent loss.
Glimpsing beyond the core. Beyond the core case, any form of
interference with another’s chattel can count as a conversion,
provided the interference is substantial enough to warrant a forced
sale to the defendant. If the interference with the plaintiff’s
possession is serious enough and the defendant enjoys no privilege,
the defendant is a converter if he dispossesses the plaintiff and
likewise if he transfers title or possession and if he fails to return
the chattel on demand.34 He is a converter even if he acquires title
to the chattel in good faith from a thief who stole it from the
defendant.35
Possession. The conversion rules, like those of trespass to land,
traditionally protected possessory rights.36 So a bailee who had no
title to the chattel could sue if the defendant seized or destroyed
the chattel.37 Today the owner who is not in possession can also
sue to the extent her interests are adversely affected by the
conversion.38
Substantial interference. Everyone agrees that conversion
requires more than intermeddling or interference; it requires very
substantial exercise of control or dominion inconsistent with the
plaintiff’s rights. Jurists have found it impossible to define with
precision the amount of control that will count as a conversion.
Perhaps the best approach is to ask, with the Restatement,
whether the defendant exercised so much control over the chattel
that courts can justly require him to pay its full value.39
Insubstantial interference. If the defendant’s dominion over the
chattel was limited, as where he takes the plaintiff’s car for a one-
block joy ride, the court is unlikely to find a conversion. In that
case, the defendant may be liable for the tort of trespass to
chattels.40 But in that case the defendant will not be liable for the
entire value of the car, only for actual damages caused.
Alternatives to conversion. The plaintiff who cannot prevail on a
conversion claim may have a number of alternatives. The
defendant who has committed no conversion may still be liable for
a trespass to chattels or for negligent harm to the chattel.41 If
interference occurs through use of the judicial process, the
plaintiff’s claim may be for malicious prosecution or the like.42
Statutes may create claims that redress interference with chattels
under a set of rules different from those used in conversion cases.
When the property in question is purely intangible, a congregation
of economic tort claims stands ready for such cases.43
Property and tort issues. Two radically different kinds of
problems arise in conversion cases. In many cases, the broad issue
is whether or not the plaintiff’s property interest prevails over the
defendant’s. In such cases, the focus of inquiry is not on the
109
defendant’s conduct but on the plaintiff’s property rights. For

example, a creditor who loans money to a farmer to buy cows may
take a mortgage or other security interest in the cows, even though
the farmer keeps them on the farm. If the farmer sells the cows to
defendant, contrary to a provision of the mortgage, the defendant
will be a converter if the plaintiff’s mortgage is a property interest
superior to the defendant’s. That issue is resolved by rules about
the rights or property interests of creditors; tort law is merely the
vehicle for enforcing those underlying property rights.44 So many
conversion cases turn primarily on the law of personal property
ownership, or on the law of secured transactions, warehouse
receipts, or other rules under the Uniform Commercial Code
(“UCC”), where the rules attempt to delineate the interests held by
adverse parties rather than to prescribe conduct.
In other cases the plaintiff’s property interest is clear and the
question is whether the defendant’s conduct should count as a
substantial interference with that interest. If Tom drives Jane’s car
without her permission, but only take it across the street, the
question whether Tom is a converter focuses heavily on his
conduct, not on Jane’s property interest.
It is true that a court indirectly determines something about
your property rights when it decides that my conduct did or did not
violate those rights, but conduct is the central focus of the inquiry.
So in a sense, the two kinds of cases cannot be wholly separated.
Yet the first kind of case, with its concern for determining
conflicting interests in property, must be mainly understood
through the law of personal property and the Uniform Commercial
Code, not through the law of torts.
The tort issues in conversion cases. The main tort issues to be
considered in conversion cases fall into three groups:
(1) Did the defendant have the requisite intent? Put the
other way around, can the defendant escape liability if he
acted in good faith?45
(2) Did the defendant exercise sufficient control to be
counted as a converter?46 Or is he, perhaps, guilty only of a
trespass to chattels?
(3) What kind of property is subject to conversion?47
Intent required. Conversion is an intentional tort; there is no
such thing as a conversion by accident. The defendant may
accidently damage property and may be liable for doing so if he is
negligent or if the facts warrant imposition of strict liability, but
negligent damage, destruction, or taking without an intent to affect
the chattel at all is not a conversion.48
The intent required is the defendant’s intent to exercise control
of or dominion over the goods, no more.49 As in other cases, intent
is shown either by the defendant’s purpose
110
to affect the goods in question, or by his knowledge that it is

substantially certain that they will be affected.50 For example, the
defendant who intentionally seizes the plaintiff’s automobile must
be substantially certain that in taking the car he will also take the
contents. Such a defendant thus intends to seize its contents, even
if his only purpose is to repossess the car.51
The intent required to show conversion is exactly analogous to
the intent required to prove a trespass to land. In neither case is
the defendant’s bad motive or good faith ordinarily relevant, except
on the question of punitive damages. The defendant might believe
the goods are his and that he has every right to deal with them,
but, even so, he harbors the requisite intent if he intends to act
upon the goods.52 For example, if John mistakenly picks up Jane’s
casebook from a library table, intending to pick up his own book,
and then sells Jane’s book on a used-book website—still believing
that the book is his—John is a converter. In the same way, an
innocent agent who negotiates a sale of goods on behalf of his
principal is liable for conversion when it turns out that the
principal had no right to the goods and that they belong to the
plaintiff instead.53
Where the defendant does not benefit from the conversion. The
intent rule would be easy to understand if the defendant intending
to treat goods as his own always retained the benefit of those
goods. If I take your book by mistake, it is not harsh to require me
to pay for it if I am then allowed to have title to the book.
Conversion law is a kind of informal forced sale, and I do indeed
have a right to the book once I have paid you for it.54 The rule in
conversion, however, does not limit liability to cases in which the
defendant has himself received or retained a benefit.55 As applied
to the book example, this rule means that I would remain liable for
conversion of your book even if I had later lost the book or it had
been destroyed in a fire without my fault.
One stringent example of the intent rule occurs when a thief
converts your watch, then sells it to an innocent purchaser who
reasonably believed that the thief was the owner. Although some
innocent purchasers are protected from liability by special rules,
the innocent purchaser in the case just described is not.56 His
intent to deal with the goods as owner is a sufficient basis for
liability. The effect is that the good faith buyer pays twice, once
when he paid the thief and once when he pays the conversion
judgment. Economically, then, he is a no-benefit defendant,
financially in the same position as the defendant who is held for
conversion even though he no longer has the converted goods.
Under the traditional common law rule, only tangible personal
property could be converted. This meant three things.
111
First, no action for conversion would lie for dispossession of an

interest in real property or damage to it.57 If timber, minerals, or
soil were severed from the land, they became personal property
and subject to conversion,58 but if I occupied your land, you could
not effect a forced sale by claiming a conversion.59
Second, no action for conversion would lie for interference with
intangible rights such as choses in action60 or trade secrets61 or
other information.62 Interference with economic rights unattached
to specific property may be actionable, but, under the traditional
rule, not as “conversion.”63
Third, no action for conversion would lie for interference with
rights that do not count as property rights. In each case, other
actions might conceivably lie, but if so they would not have the
characteristics of conversion, such as a forced sale or liability for
intended but good faith interference.
Modern expansion. Although real property as such has not
generally been subject to a conversion claim, contemporary cases
sometimes ignore or reject the traditional rules by permitting a
conversion action for some kinds of intangible rights.64 The most
common example is that courts may allow the action for the taking
of documents that are not merely evidence of a right to recovery
but are instead conceived as an embodiment of that right, on the
formal theory that in such cases tangible goods are “merged” into
documents that represent them,65 or more accurately on the
ground that in such cases the documents actually control access to
the tangible goods, at least in the practice of the business
community.66 Paper money and negotiable instruments such as
promissory notes and bonds are good examples of the kind of
intangible right than can now be converted under some
circumstances.67
One traditional limitation continues to be applied without
exception. Courts recognize a conversion only when the defendant
interferes with personal property68 and the plaintiff has a
possessory interest in that property.69 Modern courts have held
that
112
the donee of a kidney for transplant, having no property right in

that kidney, has no cause of action for conversion when the
transplant team directs the kidney to a different recipient.70 Much
more significantly, the California Supreme Court has held that
taking unique body cells of a patient for use in developing a
commercially valuable product is not a conversion.71 Similarly,
intentional interference with dead bodies may constitute a tort to
living relatives, but it seems less than helpful to say that the claim
arises because relatives have a property interest in the body. The
claim of relatives that a body was mishandled is not a claim for the
market value of the body, but rather for the relative’s emotional
distress. Thus such a claim is not about the body as property but
the body as the physical remains of a loved one. Conversion is thus
the wrong theory for such a case.72 However, lawyers sometimes
invoke the conversion theory anyway and courts sometimes take it
seriously.73
Early torts scholar Thomas M. Cooley defined conversion as
“[a]ny distinct act of dominion, wrongfully exerted over one’s
property in denial of his right or inconsistent with it.”74 Many
courts have stated this formula or some variation on it.75 The
plaintiff’s consent to the defendant’s conduct of course negates a
conversion, because where the defendant is acting with the
plaintiff’s consent, he cannot be acting inconsistently with the
plaintiff’s rights; much less can he be doing so in a way that counts
as “dominion.”76
The Restatement’s test: justice of a forced sale. The Restatement
rule requires dominion over the plaintiff’s chattel that is so
extensive that it will be just to force the defendant to pay full value
of the chattel.77 The conversion action in effect results in a
judicially forced sale of the goods to the defendant; this forced sale
is the action’s most significant feature.78 A conversion will be found
when, but only when, the facts justify such an extreme remedy—
when the defendant exercised quite extensive dominion over the
chattel. The Restatement’s rule does not eliminate judgment calls,
but it does tell lawyers and judges what kind of judgment must be
made.
The Restatement’s factors. The Restatement attempts to provide
more specific bases for developing evidence, formulating
arguments, and making decisions. It lists six factors that courts
should consider in determining whether the defendant’s
interference with the chattel is serious enough to justify a finding
of conversion. The list provides a
113
convenient evidentiary template, suggesting that evidence on

the following points will be helpful to a decision:
(1) The extent and duration of the defendant’s dominion
or control;
(2) The defendant’s intent to assert a right in the goods
that is inconsistent with the plaintiff’s ownership;
(3) The defendant’s good faith;
(4) The amount of actual interference with the plaintiff’s
right to use the chattel;
(5) Any harm done; and
(6) The inconvenience or expense caused.79
An example. Suppose that by happenstance the defendant’s car
key fits the plaintiff’s identical car and the defendant mistakenly
takes the wrong car from a parking lot but discovers his mistake
and returns the car two hours later with apologies. He has not
harmed the car. The first factor tells the lawyer to inquire about
the length of time the defendant had the car; it was not long, so
that factor perhaps favors the defendant. The second and third
factors tell lawyers to consider the defendant’s state of mind; and
since he did not intend to assert ownership and acted in good faith,
those factors also favor the defendant. The fourth factor suggests
that lawyers should find out whether the plaintiff was actually
inconvenienced by loss of the car’s use. For example, if the plaintiff
did not actually attempt to use the car and did not even know of its
absence, her abstract right to possession has been invaded but she
has suffered no actual interference at all. The fifth factor, harm
done, and the sixth, actual expense caused, both seem to work for
the defendant in this example. The conclusion almost certainly is
that the defendant should be liable for trespass to chattels for any
harm actually done but should not be compelled to purchase the
car by way of a conversion action.80
§ 6.7 Methods of Committing Conversion—
Generally
Dispossession
As the Restatement recognizes, conversion can be committed in
many different ways.81 A taking of the chattel by a thief is a simple
and core example. But the defendant can commit conversion by any
act that counts as intentional dominion over the chattel and that is
not privileged82 or protected by law.83 Dispossessing the plaintiff,84
or
114
preventing the plaintiff’s possession when she is entitled to it,85

is a common form of conversion, so long as the interference with
the plaintiff’s interests is substantial. For example, even the sheriff
who tows away the plaintiff’s tractor in the good faith belief that it
is stolen property may be liable for conversion.86
Seriousness of dispossession. Whether the dispossession is
serious enough to count as a conversion is largely a matter of
degree, but the defendant’s intent or lack of intent to assert a right
in the property is also significant. Driving the plaintiff’s car across
the street without permission is conceivably a dispossession, but if
the plaintiff can recover the car by crossing the street, it is not a
conversion;87 taking the car from Mississippi to Kansas, on the
other hand, is easily a conversion.88
Destruction, Alteration, or Damage
Intentional destruction, major alteration, or serious damage are
often extreme cases of dispossession and count as a conversion.89
For example, the defendant who throws away the plaintiff’s
possessions is exercising complete dominion over them and is liable
for conversion.90 Destruction or serious damage may also amount
to a conversion in a rather different way. If the defendant
intermeddles with a chattel, without intent to cause harm to it but
substantial harm or destruction nevertheless occurs, the defendant
becomes a converter liable for the destruction.91
Use or Interference Short of Dispossession
When the defendant uses the plaintiff’s chattel or interferes
with it but does not damage it or dispossess the plaintiff for any
significant time, rules provide little assistance. If the use or
interference is substantial enough, the court may find a conversion.
If it is not, the court will reject a conversion approach92 and the
defendant will be liable at most for a trespass to chattels. In this
setting the defendant’s intent or bad faith becomes important,93
along with the duration of the interference. The defendant who
uses your desk to write a letter is probably not a converter even if
you have told him not to do so; if he uses it for months and claims
ownership, he probably is.94
As already indicated, even a minor trespass may warrant
liability for conversion if, in the course of the trespass, substantial
though unintended harm results to the chattel.
115
This rule is a manifestation of the extended liability rule seen in

other intentional torts such as trespass to land and battery.95
Acquiring or transferring possession, ownership, or
security interests
One who transfers possession of the plaintiff’s chattel is
ordinarily exercising dominion over it and may thus be liable for
conversion.96 Subject to the special rule for agents stated below,
one who acquires possession of a chattel often exercises substantial
dominion over the chattel merely by acquiring possession, title, a
claim to title, or a security interest in it.97
All acquisitions are not conversions, of course; one who acquires
possession with appropriate consent of the owner is not a
converter, nor is one who acquires transient possession that does
not interfere substantially with the plaintiff’s rights in the chattel.
On the other hand, the plaintiff who purchases a chattel is surely
asserting ownership and the right of dominion, and if this is
inconsistent with the rights of the plaintiff, then it is a conversion.
In particular, the good faith purchaser from a thief is a converter
even though he purchases in utter good faith.98
Agent receiving goods innocently. A thief steals your computer,
then has it stored in the ABC Warehouse, which knew nothing of
the theft. The thief has converted your computer and is liable to
you. If recovery against the thief is not possible, can you recover for
conversion against the ABC Warehouse? The answer is no. The
warehouse can be viewed as an agent or bailee of the thief. An
agent or bailee who receives goods for storage, safekeeping, or
transport is not a converter merely because he acquires
possession.99 The rule is supported by policy; it is commercially
convenient to permit storage and transport. It is also supported by
the fact that a bailment by itself seldom puts the goods beyond the
owner’s reach, so that there is relatively little to be gained by
imposing liability upon the innocent bailee.
The protective rule for agents and bailees does not extend to
those who accept the goods when they knew or had reason to know
of the plaintiff’s rights. Nor does it extend to those who take an
active role in negotiating for their principals’ a transfer or sale100
on the one hand or a purchase or receipt of the goods on the
other.101
A number of dispossession cases arise in the context of
creditors’ efforts to recover a debt or the property allocated to
secure that debt. The defendant’s mere assertion of a lien or
security interest against the plaintiff’s property is not necessarily a
conversion of the property even though the defendant has no right
to a lien on it.102 But a creditor-lienor
116
who sells property not subject to its lien is guilty of

conversion103 and so is a sheriff who enforces a judgment by
seizing property of the wrong person.104 So is a creditor who
wrongfully repossesses the debtor’s car,105 and one who conducts a
sale of it that is not commercially reasonable.106
A creditor who can rightfully take possession of mortgaged
chattels cannot rightfully seize unmortgaged chattels as well, or if
he does, he must make prompt and reasonable efforts to identify
and return those not mortgaged.107 Even if a creditor is entitled to
repossess the chattel in an honest and peaceable way, he may be a
converter if he repossesses by a breach of the peace,108 or in some
states if he does so by fraud or trickery.109
So far as the creditor’s interference results from a judicial
proceeding, the plaintiff’s grievance may not rest on conversion but
on malicious prosecution or even on a civil rights tort instead.110
Bailee’s Sale, Disposal, or Transfer of Possession
The defendant’s unauthorized transfer of an interest in the
plaintiff’s property is ordinarily a substantial exercise of dominion
over that property and a conversion.111 This kind of conversion is
ordinarily accomplished by bailees. For example, a jeweler who
holds the plaintiff’s rubies for appraisal is not a converter by the
mere act of holding them, but he becomes one if he sells them.
Even the jeweler’s innocent employee, who believes the jewels to be
part of the stock in trade, may be a converter if he negotiates a sale
of the rubies and delivers possession of them.112 Similarly, one who
holds property pledged to secure payment of a debt is a converter of
the pledge if he sells it in violation of any of the terms of the pledge
or after the underlying debt has been paid.113
A transfer of possession without an actual sale and without gain
to the defendant may still operate as a conversion. For example, a
bailee of goods who rebails them to another warehouse in violation
of his contract to hold them himself may be a converter,
117
at least if the transfer leads to the loss of the goods.114 A

warehouse or other bailee who holds the plaintiff’s goods must
deliver them only to the plaintiff or to persons the plaintiff
designates. If the bailee misdelivers the goods to the wrong person,
even by honest mistake, he is a converter and liable for the value of
the goods.115 For instance, the jeweler who does not sell the
plaintiff’s rubies but mistakenly delivers them to another customer
is a converter.116
In a classic case,117 the bailor instructed the bailee to return
bailed goods by shipping them Railway Express. The bailee packed
the goods and addressed them to the plaintiff, then gave them to a
person dressed in an appropriate uniform and who represented
that he was from the express agency. But the person was an
imposter and the plaintiff never got the goods. Although the bailee
was both innocent and reasonable in delivering the goods to the
apparent employee of the express company, and although he was a
gratuitous bailee and not one for hire, he was held for conversion.
Bailee’s nondelivery or withholding possession
When demand and refusal is required. Somewhat strangely, a
bailee’s non-delivery may be treated more leniently than
misdelivery. A bailee who is under an obligation to return goods
when a specific event occurs may be liable as a converter when the
event occurs and he fails to return the goods, whether or not the
plaintiff demands them.118 But when the plaintiff bails goods for
an indefinite time, the bailee is not a converter until the plaintiff
has made a demand for their return, unless the bailee commits
some affirmative act of dominion by asserting ownership, disposing
of or damaging the goods. The rule requiring a demand has even
been applied when the defendant is a third person who acquired
the goods in good faith from the bailee and who asserts title to
them.119 The date of the demand or refusal may be significant in
starting the statute of limitations clock running or in assessing
damages.120 The demand and refusal requirement has a basis in
law and good sense when it is applied to defendants who are, at
least initially, in rightful possession of the chattel. However, some
courts, without appearing to notice the difference, have stated
demand and refusal as a general requirement for establishing
conversion. Requiring a demand for return would hardly be
justified if the defendant has deliberately converted the plaintiff’s
car by theft or has deliberately destroyed it, so it is easy to see that
the demand requirement should be confined to bailment and other
rightful possession cases.121
What counts as refusal. When a demand is required, the
defendant becomes a converter only if he refuses to return the
property after the demand is made or if he engages in conduct
equivalent to a refusal. “Refusal” is a shorthand term in this
context. Once the demand has been made, any conduct of the
defendant that is inconsistent with
118
the plaintiff’s rights in the property counts as a refusal or its

legal equivalent. The defendant who continues to withhold the
plaintiff’s goods is a converter if he denies that the goods belong to
the plaintiff or that he himself holds them,122 or refuses to respond
to the plaintiff’s repeated letters and telephone demands,123 or
demands payment of charges he has no legal right to.124 Express
verbal refusal is not required; an unreasonable delay in returning
the property125 or giving access126 to it after a demand might be
enough to make a jury question on this point. Of course, a bailee
might have legitimate reasons for refusing to return goods
immediately, and a conditional refusal of delivery, based on
reasonable grounds and done in good faith, will not be
actionable.127
Bailee’s burden of proving his innocence. Once the plaintiff has
made a demand upon the bailee and the bailee has refused to
deliver the goods, the picture becomes a little more complicated.
Suitors who claim that a bailee has failed to return the bailed
goods often assert both a breach of the bailment contract and a
conversion.128 The bailee’s liability for failure to return the
plaintiff’s goods arises only if he is negligent or is intentionally
withholding the goods because of misdelivery or otherwise.
However, in most states129 the bailee must prove his innocence in
failing to deliver the goods.130 Carriers and innkeepers are subject
to similar rules.131 If he fails to prove his innocence, he is either
presumptively negligent or has presumptively misdelivered the
property, and thus has either breached the bailment contract or is
guilty of a conversion.
§ 6.10 Contract and Tort: Conversion and the
Bailment Contract
Convergence of tort, contract and property in bailment cases.
Contract, negligence, and conversion are theoretically separable
bases of liability. A warehouse that fails to redeliver goods to the
person entitled to their return upon a proper demand, at times
may be held liable for negligence or liable for conversion,
depending upon the circumstances.132 At other times, the plaintiff
might have an action for breach of contract.133 The
negligence/conversion/contract theories are often rolled up
together. For example, a court may say that breach of the bailment
contract is a conversion.134
119
Not only do the formal theories converge in bailment cases; the

underlying concerns of tort law, contract law and property law do
so as well. The bailor owns the chattel bailed, or at least has a
right to immediate possession. Tort law traditionally respects his
possession-ownership rights in permitting him to recover against a
bailee who negligently damages the goods and against one who
converts them by non-return or otherwise. It also permits the
bailor to recover the goods themselves, thus respecting his property
interest. Contract, express or implied, however, is the foundation of
the bailment. Even a brief account of conversion in bailment cases
must thus consider the effects of the bailment contract on the tort
recovery and the protection of the bailor’s property interests.
Contract-related transactions. Contracts, express or implied,
may be significant in various transactions involving the transfer of
possession of personal property. Sales of goods with payments to be
made over time coupled with a right of the seller to repossess have
already been mentioned.135 Many other transactions are bailments
in various forms—transactions in which the bailee accepts
possession of personal property with the obligation to return it in
accord with agreed terms.136 These include pledges of property as
security for loans; leases and loans of the property; delivery of the
property to a carrier for transport of goods or to a warehouseman
for safekeeping; and delivery to a bailee who is to perform work on
the personal property.
In the absence of an overriding statute, the bailment contract,
whether express or implied, normally establishes the bailee’s
duties. For example, the parties may understand that the
obligation to return is conditioned on some event. The bailee need
not return goods pledged to him as security for a debt until that
debt is paid; he may instead sell the goods to secure his
payment.137 In the same way, the bailee need not return the goods
in unaltered condition if the point of the bailment was that the
bailee would alter or repair the goods. If the agreement is that the
bailee is to grind wheat into flour, he is not a converter by his act of
grinding the wheat; he satisfies his obligation if he returns the
flour it produced as provided by the express or implied agreement.
Another instance in which the bailee is permitted to return
different goods is the case of fungible goods, where the obligation is
to return goods of like kind, quality, and amount rather than the
identical goods.138 The upshot is that while the bailee must by law
use reasonable care in performing his duties, those duties are set
by any implied or express contract provisions on point, so that he is
not guilty of conversion or any tort if he complies with those
contractual duties.
When the bailee, on the contrary, does not comply with the duty
to return the goods under the contractual terms, two additional
considerations arise: the effect of
120
exculpatory or damages limiting clauses, and whether the
bailee is liable in tort or only in contract.139
Contractual provisions protecting the bailee. The underlying
duties of the bailee—to hold, to repair, and to transport, for
example—are created by the consensual undertaking that creates
and limits140 the duties owed. Two other kinds of contract
provisions that might affect liability are quite different, because
they do not limit the duty owed or deny its breach. The first limits
liability by limiting the damages recoverable; the second attempts
to exculpate the bailee entirely by providing he is not liable even
for his tortious acts. Cases and statutes usually support
agreements that merely limit the amount of the bailee’s liability,
where such clauses are properly presented and unambiguous.141
Exculpatory clauses are viewed less charitably. Courts have often
thought that clauses completely exempting the bailees for hire
from all liability are void or ineffective to relieve the bailee and
certain others from liability in tort.142 This rule developed in an
era of “manifest judicial hostility toward release-from-negligence
contracts.”143 Some courts today may lean toward the other pole of
public policy, freedom of contract, with the result that contracts
fully exempting the tortious defendant may be enforced so long as
the transaction does not too closely resemble a bailment or one
otherwise heavily affected with the public interest.144
Other forms of contractual control over liability. Two other
contractual limitations are prominent. First, the bailee may
contractually prescribe some of the underlying obligations he
undertakes. Where statutes do not prescribe otherwise, carriers
can restrict the scope of their duties, for example by promising one-
week delivery instead of next-day delivery. Second, the defendant
may contractually position himself to avoid bailee status
altogether, for example by leasing space for storage or parking
without accepting possession or control over the goods.145
§ 6.11 The Bailor’s Option to Sue “In Tort” or “In
Contract” and the Economic Loss Rule
Because the bailee’s obligation is to return the goods as
provided or implied in the contract, a bailee’s return of the goods in
accord with the contract forecloses a bailor’s suit in conversion as
well a suit on the bailment contract. The core objective—to respect
the valid contract—is thus achieved regardless of whether the
claim is conceptualized as being in contract or in tort. So long as
the bailee complies with the contract provisions as to the condition
of goods on return and the timing of return, he cannot be a
converter
121
because in such a case he would not have exercised dominion

over the goods at variance with the bailor’s rights. And in that
case, he has not breached the contract, either.
Noncompliance with bailment terms—the plaintiff’s traditional
option to sue in tort or contract. In the reverse situation, when the
bailee does not return the goods either in the original condition or
in the condition called for by the bailment, at least three possible
claims can be asserted against the bailee—contract, conversion,
and negligence. Significantly, courts have said repeatedly that the
bailee has the option of suing on the contract or in tort146 or for
restitution.147 This necessarily means that the existence of a
contract right does not traditionally compel a suit in contract, but
permits a conversion action (or in some instances a negligence
action) if the plaintiff so chooses. Whether the tort claim is for
negligence or for conversion depends on whether the facts show
conversion and not something less. In one instance, the tort action
may be inappropriate. Nonfeasance that does not damage the
goods does not look like a conversion. For instance, if the bailee is
expected to paint a bailed automobile, but returns it unpainted, he
does not look like a converter. The bailor’s claim, if he has one,
should be exclusively on the contract in such a case.
Limiting the plaintiff’s claim to contract actions—the economic
loss rules. In recent decades, courts have increasingly been
developing rules or doctrines often collectively or separately
referred to as economic loss rules.148 The rules, which eliminate
tort claims, can apply where the defendant’s wrong, whatever it is,
does not cause physical harm or interference with person or
property. A common example is a sales case: defendant contracts to
deliver to plaintiff a truck suitable for hauling plaintiff’s goods to
customers. The truck that defendant provides is defective, and
plaintiff suffers lost sales because he cannot make delivery to
customers. Defendant has caused an economic harm in such a case,
but no physical harm to plaintiff or plaintiff’s property. One
version of the economic loss doctrine holds that, where the parties
are in a contractual relationship like the buyer and seller in the
example, the defendant’s negligence is not actionable as a tort in
the absence of physical harm to person or property. Instead, the
plaintiff must sue on the contract or not at all. By eliminating the
tort claim, this version of the economic loss rule bars recovery
altogether if for any reason the plaintiff cannot prevail in contract.
The economic loss doctrine in bailment cases. As generally
understood, the economic loss doctrine has no application to cases
of interference with tangible property—in bailment cases, the
plaintiff can sue in tort or in contract. However, some courts have
applied the rules for pure economic loss cases to ordinary
conversions of tangible property, without acknowledging either the
plaintiff’s traditional option to sue in tort or the enormous
difference in the approach taken in the pure economic tort cases.149
Under this view, the plaintiff is compelled to sue in contract if she
sues at all, even though the claim rests on interference with
tangible property. If the contract contained a liquidated damages
clause or the statute of limitations had run on the contract, the
plaintiff might even be denied recovery of her own property by way
of an action for detinue or replevin.150
122
That in turn would mean that the defendant could simply

appropriate the property for himself by paying contract damages,
or by paying nothing at all if the contract statute of limitations had
run.
Broad statement of the economic loss rule. Some courts may
have made overly broad statements on this topic, perhaps without
considering the specific bailment situation where the plaintiff
traditionally has the option to sue in tort and where exculpatory
clauses are often rejected.151 Or broad pronouncements may be
made without adverting to the traditional limits of the economic
loss rule. However, it may be possible to restructure the economic
loss doctrine into a general preference for contract over tort.152 If
that were to be done, the law of bailment and conversion of
tangible goods will be radically altered. But there are reasons not
to go so far. In the case of a bailment contract, denial of the tort
remedy for non-return of the goods implicates the plaintiff’s
property rights in the goods. A rule that limited the plaintiff’s
claim to contract when the defendant failed to perform its duty to
return the goods gives the defendant the right to take the
plaintiff’s property at a price. Perhaps this would be acceptable to
some judges, but it seems justifiable only if judges are quite certain
that the contract objectively meant to provide for such a forfeiture
of property—a quite remote possibility in the case of a bailment.
§ 6.12 The Bona Fide Purchaser of Converted
Tangible Goods
Suppose that Oscar is the owner of a valuable watch. Theo
gains possession of the watch by theft or fraud, or as a merchant
dealing in watches who promises to repair it. Having gained
possession, Theo then sells the watch to the defendant who
purchases in the good faith belief that Theo is the owner. Is the
defendant a converter who is liable to Oscar?
(1) A bona fide purchaser who buys from a thief-
converter, including a converter who takes property by
mistake,153 is fully liable for conversion. The thief got no
title and cannot pass title to a purchaser.
(2) A bona fide purchaser who buys from one who has
voidable title is not a converter. One who obtains the
plaintiff’s property by fraud has voidable title and can pass
title to the purchaser if he does so before a legal or equitable
action by the owner actually avoids the title.
(3) Under the UCC, where an owner entrusts goods to a
merchant who deals in goods of that kind (for repair,
perhaps), a bona fide purchaser who buys such goods from
the merchant making an unauthorized sale gets good title
and is not a converter.
(4) One who does not pay value—a donee, for example—
is not a bona fide purchaser and is subject to liability for
conversion.
Traditional rule of liability. Under the traditional common law
rule, one who purchases converted goods from one who has no title
is himself a converter by the very act of purchase. The purchaser
may be wholly innocent, he may pay value for the goods
123
and he may act in good faith. He is nevertheless a converter.154

As already shown, good faith is sometimes said to be a factor in
determining whether a brief interference with the goods is
sufficiently serious to warrant liability for conversion.155 However,
that rule has no application to the case of a purchaser from one
who, like a thief, has no title. In the purchaser’s case, the act of
purchase with its concomitant assertion of a right to the goods is by
itself sufficiently serious and always counts as a conversion. If the
purchaser is held liable to the owner, he has a claim against the
person who sold him the goods, but this claim is seldom of any
value to the innocent purchaser, who is usually sued only because
the converter cannot be found or has no funds.
The innocent-purchaser rule is usually derived by reasoning in
this way: a thief who converts goods does not get title to the goods
by converting them. Title to the goods thus remains in the original
owner even after the conversion. Since the thief-converter has no
title, he cannot pass title to a purchaser, and this is true whether
the purchaser is innocent or not. The rationale stands on two well-
accepted rules about conversion: first, intent to deal with the goods
is enough and bad faith is not required; and second, a purchase of
goods is sufficient exercise of dominion or control to count as a
conversion.
Traditional rule of non-liability: the bona fide purchaser from
one who has voidable title. Conversion is only one of the methods
by which a wrongdoer can separate victims from their property.
Some others include fraud and duress. If the wrongdoer does not
steal the plaintiff’s property or obtain it by mistake but instead
uses fraudulent representations to induce the plaintiff to give it to
him, the wrongdoer acquires a voidable title. When the plaintiff
discovers the fraud, she might decide to leave the property with the
defendant and to recover damages for the fraud. Or she might
decide to avoid the transfer because it was tainted with fraud. This
right to avoid the fraudulent deal and get the property back is
usually thought of as an equitable right or an “equity.”
The victim who loses her property because of a wrongdoer’s
fraud may pursue either the damages remedy or the avoidance
remedy, but unless and until she avoids the transaction, the
wrongdoer still has title. He is therefore not in the same position as
the ordinary converter. Since he has title, he can pass that title to
a bona fide purchaser who pays value for the goods and who has no
notice of the wrongdoing.156 The bona fide purchaser who takes
title from the wrongdoer is thus not a converter and not liable to
the victim. In the traditional view, a bona fide purchase “cuts off
equities” like the owner’s right to avoid the fraudulent deal,157
even though it does not cut off rights based on legal title.
The Uniform Commercial Code rule. The UCC, adopted in
almost all states, adds a third rule about innocent purchasers that
partly addresses the criticisms above. It provides that if a person
entrusts his goods to a “merchant who deals in goods of that kind,”
then the merchant has a “power” to transfer all the title the
entruster had.158
124
For example, Brenda leaves her bicycle for repairs at a shop

that sells bikes. The merhant repairs her bike, then sells it to you.
You do not know that the bike is Brenda’s, so you are a bona fide
purchaser. Under the traditional rule you would still be liable as a
converter because the merchant did not have any title to pass to
you. Under the UCC provision, however, the merchant had power
to pass you all the title that Brenda had in the bike.159 So you own
the bike, and you are therefore not a converter. The merchant
definitely is a converter, however; he had a power to pass title in a
way that protects you as the purchaser; but he had no title himself
and no right to pass title. He would thus be liable to Brenda for the
conversion of her bike.
§ 6.13 The Bona Fide Purchaser of Converted
Money or Checks
Money and negotiable instruments such as checks are treated
differently from tangible chattels. Nonpayment of a debt is of
course not a conversion of the amount owed.160 The traditional
common law rule went far beyond that to hold that conversion did
not lie even for the taking of paper money, except where it was
specifically identified and described with particularity.161 The
plaintiff in such a case, however, had an action of some kind162 and
today the action may well be called one for conversion and
entertained when the facts warrant.163 Whatever the action is
called, special rules apply to protect innocent persons to whom the
stolen money is paid. The rule is that the person who innocently
accepts money from a thief or embezzler is not a converter at all
and not liable to the original owner.164
An example makes it clear why the rule is all but inevitable.
Suppose a thief steals the plaintiff’s money, then buys a loaf of
bread from the baker. The baker has no knowledge of the money’s
provenance. If money were treated like a tangible chattel, the
baker would be liable to the plaintiff who could make appropriate
proof of the facts. But if the baker were liable, he would want to
make inquiries about the source of monies offered him by
customers, or perhaps he would only sell to customers known to
him, or to those who could put up collateral security. Perhaps
instead he would raise all prices to cover the costs of potential
liability. In any event, trade would be slower or goods would be
more costly; some customers might find it difficult to buy goods at
all. The legal policy is to avoid the unimaginable inconvenience,
commercial lethargy, higher costs, and perhaps discrimination that
would result if the baker could not accept currency without inquiry
into their source. Hence the rule protects those who receive money
innocently, even if the money was in fact stolen from the plaintiff.
The policy to permit free passage of money in trade applies as
well to negotiable instruments like checks and negotiable
promissory notes.165 In Hinkle v. Cornwell Quality Tool Co.,166
Zelnar embezzled $57,000 from Hinkle. When discovered, she
agreed to repay Hinkle. To that end, she embezzled sufficient sums
from Cornwell, deposited them in her bank account, and then
wrote checks to Hinkle for $57,000. Hinkle cashed
125
the checks and was thus fully repaid. At that point Cornwell
discovered that Hinkle had been paid with funds embezzled from
Cornwell. Cornwell sued Hinkle. The court refused to permit
Cornwell to recover.
Other and more complex doctrines may explain cases like
Hinkle,167 and in any event special rules and terminology of
negotiable instrument law are codified in the UCC. However, the
underlying policy is essentially the same as the policy towards
money, with the result that those who are holders in due course of
negotiable instruments are protected in much the same way as
those who innocently accept money from a thief.
Damages
The normal remedy for conversion is an award of damages. The
traditional measure of damages (aside from loss-of-use damages) is
the market value of the chattel at the time and place of
conversion,168 subject to limitations on liability the parties have
validly contracted for.169 In three different settings the recovery
may be measured differently.
(1) Recovery of trespass damages instead. The plaintiff may
treat the conversion as a trespass to chattels and sue for her actual
damages rather than for the value of the chattel.170 Where the
defendant takes the chattel under a privilege, which he
subsequently abuses, he may be no converter at all, and in that
case the damages are limited to harm caused by the subsequent
abuse.171
(2) Restitution—recovery of defendant’s gain. The plaintiff may
“waive the tort and sue in assumpsit,” meaning that the plaintiff
can have a restitutionary recovery for the gains the defendant
made by converting the chattel. For example, if the chattel was
worth $10 when it was converted by the defendant, and he later
sells it for $20, the plaintiff would choose this option.172
(3) Recovery of a later price increase. When the value of the
converted goods tends to fluctuate, as with commodities and with
shares of corporate stock, some states permit the plaintiff to
recover the value of the chattel at some time after conversion. For
instance, if the plaintiff’s wheat is worth $1 per bushel in
November when it is converted, but the plaintiff only discovers the
conversion the following May when wheat is selling for $2 a bushel,
it seems obviously wrong to limit the plaintiff to the $1; had the
wheat not been converted the plaintiff could have sold it at the $2
price. Even if the plaintiff discovers the conversion immediately,
the price may rise before she can effectuate a replacement, so a
recovery of the value of the wheat at the time of conversion would
not fully compensate.173
126
Measuring loss-of-use damages. The traditional rule viewed

interest from the time of conversion until judgment as an adequate
compensation for loss of use, and such interest is undoubtedly
recoverable today.174 However, where the plaintiff needs the
chattel or a temporary replacement, the more appropriate measure
is the rental value of the converted chattel, or the actual costs of
renting a reasonable substitute, or even profits unavoidably lost.175
When the rental value or profit lost during the relevant period is
awarded, no interest should be awarded for the same time
period.176
Other consequential damages. A plaintiff may suffer additional
losses, often called special or consequential damages, in addition to
consequential damages for loss of use. For example, the plaintiff
may be required to expend monies in trying to find the chattel or in
providing a substitute.177 In general, the plaintiff may recover
reasonably proven consequential damages that could not have been
reasonably avoided.178 However, courts usually do not permit a
recovery for emotional distress resulting solely from the conversion
of a chattel.179 When the chattel is not an item of value in the
marketplace, courts offer a woolly rule that gives the jury a little
leeway but not too much: the plaintiff can recover the value to the
owner herself rather than market value, but may not get anything
for sentimental attachment.180
Nominal damages. Courts have said that nominal damages,
such as $1 or six cents, may be recovered in conversion actions
where there are no provable actual damages.181
Punitive damages. Generally speaking, punitive damages are
permissible only when the defendant has engaged in serious
misconduct coupled with a reckless or malicious state of mind.182
Some conversion cases fall into this category and permit the award
of punitive damages.183 For example, when the defendant has no
honest claim of right to the plaintiff’s goods, retention of the goods
after a demand for their return would be evidence of malice that
supports a punitive damages award, even if the initial taking of the
goods was innocent.184 Punitive damages awards are now
subjected to
127
constitutional constraints under the Due Process Clause, so

that careful review is required, especially as to the amount
awarded.185
Recovery of the Chattel—Replevin
If the plaintiff can identify the specific chattel converted by the
defendant, the plaintiff usually has the option to recover the
chattel itself, together with damages for any harms or losses
resulting from its taking. Common law actions to recover the
chattel186 gave way in the United States to statutory actions often
called replevin actions after one of their common law predecessors.
In the traditional statutory replevin action, the sheriff seized the
disputed property. If the plaintiff had posted a bond or other
security, the sheriff could turn the property over to the plaintiff
before trial. The plaintiff’s bond guaranteed a return of the
property or payment for it if it turned out after trial that the
plaintiff was not entitled to it after all.
Pre-trial seizure of property obviously runs serious risks of
error and abuse. In a series of cases, the Supreme Court of the
United States has held that some kind of hearing ordinarily187
must be held before a pre-trial seizure will be constitutional.188 In
response to these decisions, some jurisdictions have modified their
statutes to require a brief adversary hearing before the property is
seized. In some instances, the statute now authorizes a more
straightforward procedure under which the judge, like the old
equity judge, orders the defendant to deliver the property to the
plaintiff or to deposit it in court.
The period in which suit must be brought for conversion is the
period specified by statute, but even so, the period may turn out to
be indefinite or uncertain because several rules have the effect of
shifting the prescriptive period or the way it is computed.
Multiple statutes of limitation governing different conversions.
States may have two or more statutes of limitation on conversion.
These include the general statute of limitations189 and a special
statute under the UCC for conversion of commercial
instruments.190 In addition, some states have still other limitation
periods for special cases of conversion.191 The prescriptive period in
a state’s general statute and the period
128
in the UCC or other special statute may not be the same.192

This difference sets up the potential for arguments that one of the
statutes applies and the other does not.
Shifting the legal conception of the plaintiff’s cause of action. In
many instances, the facts supporting the plaintiff’s claim for
conversion can be equally or better conceptualized as a claim for
breach of contract, fraud, or some other action. If the statutory
periods of limitation are different for each of those causes of action,
the court’s characterization of the claim will determine the
applicable period. So a court may think that the gist or gravamen
of a claim is contract rather than conversion, and therefore apply
the shorter statute or other rules for contract.193 Likewise, a court
may think that the gist of the action is conversion rather than
breach of contract and so apply the shorter statute for
conversion.194 The method for determining the gist or gravamen is
vague at best; courts often decide the “gist” of the action without
any reference to the policy of honoring the contract. Courts need
not make this “gist” determination where the plaintiff has waived
the tort and has sued in assumpsit. In such a situation the plaintiff
has elected to treat the conversion as a breach of contract and
recover restitution,195 and courts routinely treat the case as one
with the attributes of contract,196 applying the statute of
limitations for contract, not for conversion.197
Accrual: time of conversion or discovery. In the case of
conversion of ordinary chattels, the older rule starts the statute of
limitations running at the time of conversion, not at the time the
conversion was or should have been discovered.198 However, a
number of courts, sometimes under the impetus of a statute, have
supported the discovery rule, holding that the cause of action
accrues only when the owner discovered or should have discovered
the conversion.199 When the conversion is accomplished by
negotiation or conversion of negotiable instrument, most courts
have continued to apply the time-of-conversion rule. For example,
if the defendant bank converts the plaintiff’s bank account by
honoring a forged check, the statute begins to run at the time the
account is charged.200 In these commercial instrument cases,
courts emphasize the need for commercial certainty, the
importance of free negotiability, and the need for uniform
commercial rules across the nation.
—Time of demand. When the defendant rightfully comes into
possession of property, for instance when he borrows property or
stores it for the owner, he is not a converter merely because he
holds the property in accord with the terms of the bailment. He
may become a converter, however, if he destroys or sells the
property, if a return becomes
129
impossible and a demand for it useless, or if he fails to return it

at the time agreed upon.201 Otherwise, he becomes a converter only
when he refuses to honor a demand by the plaintiff for the
property’s return. In the case of such bailees, then, the cause of
action does not accrue until a demand is made and the defendant
withholds the property.202
—Serial conversions. It is possible to start the statute of
limitations running at the time when the plaintiff discovered or
should have discovered the theft (or possibly when the plaintiff
should have located the possessor of the goods). A “should have
discovered” rule has been applied to complicated problem of
recovering Nazi-looted art.203 At the same time, the substantive
rules of conversion make it clear that a series of conversions of the
same chattel can take place over a period of time. For example,
Abel may steal the property, then sell it to Baker. In such a case,
both Abel and Baker are converters and liable to the owner in a
timely suit. Without a discovery rule, the statute of limitations
begins to run in Abel’s favor at the time of his theft. Since he has
already converted the chattel, his sale of the property to Baker
need not be regarded as a new conversion that starts the statute
running all over again.204 On the other hand, Baker’s purchase
normally counts as a conversion by Baker, and we might expect
that, in a suit against Baker, the statute would start running at
the time of his purchase or the discovery of the cause of action
against him where the discovery rule applies. The upshot is that
serial conversions may call for separate statutes of limitation for
each converter or at least give the plaintiff the benefit of such a
rule or the discovery rule, whichever is more favorable. In the
absence of a discovery rule, then, it is quite possible that by the
time the plaintiff sues, the statute will have run as to converter
Abel but not as to converter Baker.
However, a major qualification is likely to apply. Suppose the
statute of limitations has run on the claim against Abel before
Baker makes his purchase. In that instance, it looks as if Abel, who
can no longer be sued, has become the owner. As owner he can pass
good title to Baker, who would thus not be a converter at all. The
New Jersey Court has said something like this in the case of a
theft of a painting by the famous artist, Georgia O’Keeffe.205
________________________________
1 Originally, a complete dispossession was required, and even that
did not suffice if the chattel was taken by way of Distress, that is, by a lord
who has (wrongfully) seized the chattel as security for rent. In that case
the plaintiff had to proceed by an action called Replevin. See J.B. Ames,
The History of Trover, 11 Harv. L. Rev. 277, 286 (1897).
2 The writ of Replevin allowed specific recovery of the chattels, but
it originally lay only for chattels wrongfully distrained by the lord as
security for the tenant’s rent due. See Id. at 287.
3 “… with a dozen or half-a-dozen ruffians he might swear an
honest man out of his goods.” Bereford, C.J., in a Yearbook case quoted in
C.H.S. Fifoot, History and Sources of the Common Law 29 (1949). Milsom
thinks that in the local courts the procedure might not have been so bad,
although when the trial was in the central courts and the defendant used
hired compurgators it was obviously undesirable to say the least. See
S.F.C. Milsom, Historical Foundations of the Common Law 67 (2d ed.
1981).
4 To use Case the plaintiff had to show that no other writ was
appropriate to the facts. That meant that the plaintiff had to claim that
neither Trespass nor Detinue fit the facts alleged. The allegation of a
finding and the allegation that the goods were converted to the defendant’s
own use both played a significant part in showing that Trespass and
Detinue could not apply. The rule that the allegation of finding could not
be denied then left the plaintiff almost completely free to use Case for
Trover in lieu of the earlier actions. See, recounting the details and the
gaps, A.W.B. Simpson, The Introduction of the Action on the Case for
Conversion, 75 L. Q. Rev. 364 (1959).
5 J.B. Ames, The History of Trover, 11 Harv. L. Rev. 277 (1897).
6 The phrase does not imply, however, that the defendant actually
used the goods or that he gained from having them. Thakkar v. St. Ives
Country Club, 250 Ga. App. 893, 553 S.E.2d 181 (2001).
7 See Fouldes v. Willoughby, 8 M. & W. 540, 151 Eng. Rep. 1153
(1841).
8 See Poff v. Hayes, 763 So.2d 234 (Ala. 2000) (taking and
photocopying private papers); Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d
1 (1946) (removing co-tenant’s goods and putting them in storage).
9 See Restatement Second of Torts § 218 (1965).
10 See § 44.1.
11 Restatement Second of Torts § 217, cmt. c (1965).
12 Mountain States Tel. & Tel. Co. v. Horn Tower Const. Co., 147
Colo. 166, 363 P.2d 175 (1961); Southwestern Bell Tel. Co. v. M.H. Burton
Construction Co., 549 P.2d 1214 (Okla. 1976).
13 Restatement Second of Torts § 217, cmt. d (1965).
14 See Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 5(2) (2010) (“An actor who intentionally causes
physical harm is subject to liability for that harm.”).
15 See Chapter 41.
17 Glidden v. Szybiak, 95 N.H. 318, 63 A.2d 233 (1949) (not a
trespass to pull dog’s ears since dog was not hurt).
18 See Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 762 P.2d 609
(Ct. App.1988).
20 “J. Doe No. 1” v. CBS Broadcasting Inc., 24 A.D.3d 215, 806
N.Y.S.2d 38 (2005).
21 Morrow v. First Interstate Bank of Oregon, 118 Or. App. 164, 847
P.2d 411 (1993). Where a chattel’s value lies in highly personal
attachment, as in the case of pets or family photos, there are difficult
problems in determining damages, but even so courts have usually
excluded recovery of emotional distress or “sentimental” value in such
cases. E.g., Mieske v. Bartell Drug Co., 92 Wash.2d 40, 593 P.2d 1308
(1979).
22 Torts to redress emotional distress as a stand-alone tort (not as
damages for torts like trespass to chattels) are usually limited by elaborate
rules. See Chapter 29.
23 In re JetBlue Airways Corp. Privacy Litigation, 379 F.Supp.2d 299
(E.D. N.Y. 2005).
24 See § 44.1.
25 See, e.g., East Coast Novelty Co., Inc. v. City of New York, 842
F.Supp. 117, 124 (S.D.N.Y. 1994).
26 See 1 Dan B. Dobbs, The Law of Remedies § 5.15 (2d ed. 1993)
(lost profits and other consequential damages).
27 E.g., Rajeev Sindhwani, M.D., PLLC v. Coe Business Service, Inc.,
52 A.D.3d 674, 861 N.Y.S.2d 705 (2008); see § 6.14.
28 Vines v. Branch, 244 Va. 185, 418 S.E.2d 890, 894–895 (1992).
29 See § 6.1.
30 Shaeffer v. Poellnitz, 154 So.3d 979 (Ala. 2014): P.F. Jurgs & Co.
v. O’Brien, 160 Vt. 294, 629 A.2d 325 (1993).
31 Wilkinson v. United States, 564 F.3d 927 (8th Cir. 2009).
32 See §§ 6.5 & 44.1 to 44.3.
33 See § 6.14.
34 See § 6.7.
35 See § 6.13.
36 E.g., Car Transportation v. Garden Spot Distributors, 305 Ark. 82,
805 S.W.2d 632 (1991).
37 See Lawrence v. State, 231 Ga. App. 739, 501 S.E.2d 254 (1998);
Priority Finishing Corp. v. LAL Const. Co., Inc., 40 Mass. App. Ct. 719,
667 N.E.2d 290 (1996).
39 Restatement Second of Torts § 222A (1965). See § 6.6.
40 See § 6.2.
41 The most common tort case of all is such a case—negligent
damage to an automobile. The ordinary rules of negligence law apply in
such cases.
42 Chapter 39.
43 See Chapters 44 & 46 (“conversion” of economic rights and unfair
competition and intellectual property respectively).
44 See Production Credit Assn of Madison v. Nowatzski, 90 Wis.2d
344, 280 N.W.2d 118 (1979) (secured creditor who file papers in the proper
office under UCC rules had conversion action against the buyer of the
goods).
45 See § 6.4.
46 See § 6.6.
47 See § 6.5.
48 Collin v. American Empire Ins. Co., 21 Cal. App. 4th 787, 26 Cal.
Rptr. 2d 391 (1994).
49 Restatement Second of Torts § 217, cmt. c (1965); Northeast Bank
of Lewiston and Auburn v. Murphy, 512 A.2d 344 (Me. 1986).
50 Restatement Second of Torts § 217, cmt. c (1965).
51 See Darcars Motors of Silver Springs, Inc. v. Borzym, 379 Md. 249,
841 A.2d 828 (2004).
52 Car Transportation v. Garden Spot Distributors, 305 Ark. 82, 805
S.W.2d 632 (1991); P.F. Jurgs & Co. v. O’Brien, 160 Vt. 294, 629 A.2d 325
(1993); Restatement Second of Torts § 244 (1965).
53 Kelley v. LaForce, 288 F.3d 1 (1st Cir. 2002); Ensminger v.
Burton, 805 S.W.2d 207 (Mo. App. 1991); Restatement Second of Torts §
233 (1965).
54 See O’Keeffe v. Snyder, 83 N.J. 478, 416 A.2d 862, 873–74 (1980).
55 Kelley v. LaForce, 288 F.3d 1 (1st Cir. 2002); Reed v. Hamilton,
315 Ark. 56, 864 S.W.2d 845 (1993).
56 See § 6.13.
57 Emerick v. Mutual Benefit Life Ins. Co., 756 S.W.2d 513 (Mo.
1988) (no conversion of leasehold interests).
58 Pan American Petroleum Corporation v. Long, 340 F.2d 211 (5th
Cir. 1964); Hamlet at Willow Creek Development Co., LLC v. Northeast
Land Development Corp., 878 N.Y.S.2d 97 (App. Div. 2009).
59 Rowe v. Barrup, 95 Idaho 747, 518 P.2d 1386 (1974). The same
rule applies where the defendant takes a purported title from someone
who has no right to convey land.
60 E.g., Famology.Com Inc. v. Perot Systems Corp., 158 F.Supp. 2d
589 (E.D. Pa. 2001) (web domain name cannot be converted).
61 See, e.g., Mortgage Specialists, Inc. v. Davey, 904 A.2d 652 (N.H.
2006) (action for conversion of employer’s information is preempted or
displaced by trade secret law, even if the information turned out not to be
a trade secret).
62 Coyne’s & Co., Inc. v. Enesco, LLC, 565 F.Supp. 2d 1027 (D.Minn.
2008); Pestco, Inc. v. Associated Products, Inc., 880 A.2d 700 (Pa. Super.
2005).
63 See Chapter 44.
64 See Chapter 44 (conversion of intangible economic values and
spoliation of evidence).
65 Hutchison v. Ross, 262 N.Y. 381, 390, 187 N.E. 65, 69 (1933).
66 Ayres v. French, 41 Conn. 142 (1874); Agar v. Orda, 264 N.Y. 248,
190 N.E. 479 (1934).
67 E.g., Lappe and Associates, Inc. v. Palmen, 811 S.W.2d 468 (Mo.
App. 1991); Manufacturers Trust Co. v. Nelson, 221 Or. 45, 350 P.2d 169
(1960) (bill of lading); see Tyrone Pac. Intern., Inc. v. MV Eurychili, 658
F.2d 664 (9th Cir. 1981).
68 H.J., Inc. v. International Telephone & Telegraph Corp., 867 F.2d
1531, 1547 (8th Cir. 1989); Equity Group Ltd. v. Painewebber
Incorporated, 839 F.Supp. 930, 933 (D.C.Cir. 1993); see also Ananda
Church of Self Realization v. Massachusetts Bay Ins. Co., 95 Cal. App. 4th
1273, 116 Cal. Rptr. 2d 370 (2002) (abandoned property, including
document placed in outdoor trash barrel, is no longer “property,” no
conversion).
69 Blackford v. Prairie Meadows Racetrack and Casino, Inc., 778
N.W.2d 184 (Iowa 2010).
70 Colavito v. New York Organ Donor Network, Inc., 8 N.Y.2d 43,
860 N.E.2d 713, 827 N.Y.S.2d 96 (2006) (at least in this context, the donee
had no property right in the kidney).
71 Moore v. Regents of the University of California, 51 Cal.3d 120,
271 Cal. Rptr. 146, 793 P.2d 479 (1990).
72 Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877 (Colo. 1994);
Boorman v. Nevada Mem. Cremation Soc’y, Inc., 236 P.3d 4 (Nev. 2010).
73 See, e.g., Spates v. Dameron Hospital Ass’n, 114 Cal. App. 4th
208, 7 Cal. Rptr. 3d 597 (2003) (conversion claim against a hospital which
turned the patient’s dead body over to the coroner when family members
could not be found; held, the defendant did not intentionally interfere with
plaintiff’s right of possession and hence was not a converter).
74 Thomas M. Cooley, Law of Torts 448 (1878). Courts picked up
Cooley’s definition from various editions.
75 E.g., Collin v. American Empire Ins. Co., 21 Cal. App. 4th 787, 26
Cal. Rptr. 2d 391 (1994); Darcars Motors of Silver Springs, Inc. v. Borzym,
379 Md. 249, 841 A.2d 828 (2004).
76 See Jones v. DCH Health Care Authority, 621 So.2d 1322, 1324
(Ala. 1993).
77 Restatement Second of Torts § 222A(1) (1965); see Montgomery v.
Devoid, 181 Vt. 154, 915 A.2d 270 (2006)
78 Pearson v. Dodd, 410 F.2d 701, 706 (D.C. Cir. 1969); Louisiana
State Bar Association v. Hinrichs, 486 So.2d 116 (La. 1986).
79 Restatement Second of Torts § 222A(2) (1965); see, applying these
factors, Montgomery v. Devoid, 181 Vt. 154, 915 A.2d 270 (2006).
80 Cf. Johnson v. Weedman, 5 Ill. 495 (1843) (holding in accord with
the argument by A. Lincoln for the defendant that a bailee’s wrongful
riding of the bailed horse was not a conversion); LaPlace v. Briere, 404
N.J. Super. 585, 962 A.2d 1139 (2009) (under the Restatement’s factors, an
individual’s unauthorized exercise of the plaintiff’s boarded horse, where
exercise of horses was routinely provided was not a conversion even
though the horse suddenly died; the horse’s death was not shown to be a
result of the exercise).
81 Restatement Second of Torts § 223 (1965) lists seven ways in
which conversion can be committed. These include (1) dispossession, (2)
destruction or alteration, (3) using a chattel, (4) receiving it, (5) disposing
of it, (6) delivering it to the wrong person, or (7) refusing to surrender it to
the owner. All of course require intent to deal with the chattel and a
substantial interference.
82 E.g., attaching an immobilizing boot to a trespassing car, as in
Kirschbaum v. McLaurin Parking Co., 188 N.C.App. 782, 656 S.E.2d 683
(2008). On privileges generally, see Chapter 7.
83 When the defendant has resorted to the courts to gain possession,
the rules of malicious prosecution or similar torts may be used instead of
conversion rules. See Chapter 39.
85 Hartford Financial Corp. v. Burns, 96 Cal. App. 3d 591, 158 Cal.
Rptr. 169 (1979); Darcars Motors of Silver Springs, Inc. v. Borzym, 379
Md. 249, 841 A.2d 828 (2004).
86 E.J. Strickland Construction, Inc. v. Department of Agriculture
and Consumer Services of Florida, 515 So.2d 1331 (Fla.App. 1987).
87 Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1 (1946).
88 Cf. Paccar Financial Corp. v. Howard, 615 So.2d 583 (Miss. 1993)
(defendant repossessed the plaintiff’s 18-wheeler; the plaintiff
intentionally left goods in the truck intending to get them later, but the
defendant moved the truck from Mississippi to Kansas and did not help
get the goods back to the plaintiff; held, conversion of the plaintiff’s
personal items).
89 Snead v. Society for Prevention of Cruelty to Animals of
Pennsylvania, 929 A.2d 1169 (Pa. Super. 2007); Iemma v. Adventure RV
Rentals, Inc., 632 N.E.2d 1178 (Ind. App. 1994); Restatement Second of
Torts § 226 (1965).
90 Bowler v. Joyner, 562 A.2d 1210 (D.C. 1989).
92 Johnson v. Weedman, 5 Ill. 495 (1843); Fouldes v. Willoughby, 8
M. & W. 540, 151 Eng. Rep. 1143 (1841).
93 See Veeco Instruments, Inc. v. Candido, 70 Misc.2d 333, 334
N.Y.S.2d 321, 324 (Sup.Ct. 1972) (“a conscious and determined act”);
Restatement Second of Torts § 222A(2)(b) & (c) (1965).
94 Restatement Second of Torts § 227, illus. 1 to 4 (1965).
95 See §§ 4.18 & 5.10.
96 Sale or misdelivery of chattels often occurs in bailment cases
where a bailee sells or misdelivers the plaintiff’s personal property. See §
6.9.
97 See, e.g., Maloney v. Stone, 195 A.D.2d 1065, 601 N.Y.S.2d 731
(1993) (bank knowingly accepted a pledge of securities to secure a trustee’s
individual obligation); Ocean National Bank of Kennebunk v. Diment, 462
A.2d 35 (Me. 1983) (accepting stock as collateral for a loan).
98 See § 6.13.
99 Foreign Car Ctr., Inc. v. Essex Process Serv. Inc., 62 Mass. App.
Ct. 806, 821 N.E.2d 483 (2005); Restatement Second of Torts § 230 (1965).
100 Ensminger v. Burton, 805 S.W.2d 207 (Mo. App. 1991);
102 Prewitt v. Branham, 643 S.W.2d 122 (Tex. 1982).
103 Central GMC, Inc. v. Helms, 303 Md. 266, 492 A.2d 1313 (1985).
104 See Lake Philgas Service v. Valley Bank & Trust Co., 845 P.2d 951
(Utah App. 1993); Curtis v. Carey, 393 S.W.2d 185 (Tex.Civ.App. 1965).
Not every seizure is actionable, because it might be privileged. When the
sheriff executes upon property of the plaintiff rather than property of the
judgment debtor, a statute may provide the exclusive remedy. See the
remarkable tribulations of almost everyone in Elliott v. Denton & Denton,
109 Nev. 979, 860 P.2d 725 (1993).
105 E.g., Wiley v. General Motors Acceptance Corp., 624 So.2d 518
(Ala. 1993); Entriken v. Motor Coach Federal Credit Union, 256 Mont. 85,
845 P.2d 93 (1992).
106 E.g., Klooster v. North Iowa State Bank, 404 N.W.2d 564 (Iowa
1987).
107 See Boisdore v. International City Bank & Trust Co., 361 So.2d
925 (La. App. 1978).
108 Ivy v. General Motors Acceptance Corp., 612 So.2d 1108 (Miss.
1992); McCall v. Owens, 820 S.W.2d 748 (Tenn. App. 1991). UCC § 9–503
provides for repossession of collateral security if it “can be done without
breach of the peace.”
109 See Ford Motor Credit Co. v. Byrd, 351 So.2d 557 (Ala. 1977).
110 As to creditors’ unconstitutional use of legal process see § 6.14; 1
Dan B. Dobbs, Law of Remedies § 5.17(2) (2d ed. 1993); as to malicious
prosecution see Chapter 39.
111 Northeast Bank of Lewiston and Auburn v. Murphy, 512 A.2d 344
(Me. 1986); Kenyon v. Abel, 36 P.3d 1161 (Wyo. 2001).
112 Restatement Second of Torts § 233(1) (1965).
113 Hartford v. State Bar of California, 50 Cal.3d 1139, 791 P.2d 598,
270 Cal.Rptr. 12 (1990).
114 Fotos v. Firemen’s Ins. Co. of Washington, D.C., 533 A.2d 1264, 76
A.L.R.4th 875 (D.C. 1987); Johnson v. Johnson, 849 P.2d 1361 (Alaska
1993).
115 S/M Industries, Inc. v. Hapag-Lloyd A.G., 586 So. 2d 876 (Ala.
1991).
116 Rensch v. Riddle’s Diamonds of Rapid City, Inc., 393 N.W.2d 269
(S.D. 1986).
117 Baer v. Slater, 261 Mass. 153, 158 N.E. 328 (1927).
118 Albrecht v. Zwaanshoek Holding en Financiering, B.V., 816 P.2d
808 (Wyo. 1991).
119 Lawrence v. Meloni, 163 A.D.2d 827, 558 N.Y.S.2d 360 (1990);
Lowney v. Knott, 84 R.I. 425, 125 A.2d 98, 57 A.L.R.2d 1042 (1956).
120 See § 6.15.
121 See, e.g., Horne v. TGM Assocs., L.P., 56 So.3d 615 (Ala. 2010) (no
demand required “where there has been a wrongful taking or an exercise
of dominion and control over the property inconsistent with the rights of
the owner”); State v. Seventh Regiment Fund, Inc., 98 N.Y.2d 249, 774
N.E.2d 702 (2002) (where “the defendant knows it has no right to the
goods, demand is not required”).
122 Driver v. Hice, 618 So.2d 129 (Ala.App. 1993).
123 McKinley v. Flaherty, 390 N.W.2d 30 (Minn.App. 1986).
124 Car Transportation v. Garden Spot Distributors, 305 Ark. 82, 805
S.W.2d 632 (1991).
125 Willis v. Midland Finance Co., 97 Ga. App. 443, 103 S.E.2d 185
(1958) (delay of “days”); see Schroeder v. Auto Driveaway Company, 11
Cal. 3d 908, 523 P.2d 662, 114 Cal. Rptr. 622 (1974).
126 Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371
(1968) (refusal to return car keys a conversion of the car).
127 E.g., White v. Drivas, 954 So.2d 1119, 1123 (Ala. Ct. Civ. App.
2006) (“A limited or qualified refusal to surrender the property is not per
se a conversion. But the refusal must be a reasonable qualification or
requirement and stated in good faith.”).
128 See §§ 6.10 & 6.11.
129 The UCC section covering the warehouseman’s liability for
nondelivery permits states to adopt an alternative which puts the burden
on the plaintiff to show the negligence, and some states have done so.
130 E.g., Kearns v. McNeill Brothers Moving and Storage Company,
509 A.2d 1132 (D.C. 1986); Procter & Gamble Distributing Co. v. Lawrence
American Field Warehousing Corp., 16 N.Y.2d 344, 213 N.E.2d 873, 266
N.Y.S.2d 785, 21 A.L.R.3d 1320 (1965).
131 See 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 260 & 261
(2d ed. 2011 & Supp.).
132 I.C.C. Metals v. Municipal Warehouse Co., 50 N.Y.2d 657, 662,
409 N.E.2d 849, 852, 431 N.Y.S.2d 372, 376 (1980).
133 See, e.g., W.E. Stephens Mfg. Co. v. Goldberg, 225 S.W.3d 77 (Tex.
App. 2005).
134 Fotos v. Firemen’s Ins. Co. of Washington, D.C., 533 A.2d 1264,
1267 (D.C. 1987).
135 See § 6.8.
136 Courts have defined bailment in various degrees of formality and
detail. They generally emphasize the delivery of personal property for a
specific purpose, pursuant to an express or implied contract to fulfill that
purpose and to return the property when the purpose is fulfilled or on
demand, in accord with the terms of the contract. See, e.g., Grosso v.
Monfalcone, Inc., 13 Cal. App. 2d 405, 56 P.2d 1266 (1936); Hadfield v.
Gilchrist, 343 S.C. 88, 538 S.E.2d 268, 272 (2000). Whether there is a
formal contract behind the bailment or not, the transaction is necessarily a
consensual one and the parties’ valid expectations to a large extent
determine the scope of tort duties.
137 Restatement of Security § 48 (1941).
138 See Pub. Serv. Elec. & Gas Co. v. Federal Power Com’n, 371 F.2d 1
(3d Cir. 1967); Mohoff v. Northrup King & Co., 234 Or. 174, 380 P.2d 983
(1963).
139 See § 6.11.
140 See § 6.10.
141 See, e.g., Calvin Klein Ltd. v. Trylon Trucking Corp., 892 F.2d 191
(2d Cir. 1989) (New York law). Liability limits are perceived as an integral
part of the bailee’s charges or rates, a quid pro quo or tradeoff that permits
lower rates because the bailee’s risk of damages is limited, at least where
the bailor has an opportunity to bargain for full liability at a greater cost.
See Union Pac. R.R. v. Burke, 255 U.S. 317, 41 S.Ct. 283, 65 L.Ed. 656
(1921); ABN AMRO Verzekeringen BV v. Geologistics Americas, Inc., 253
F.Supp. 2d 757 (S.D. N.Y. 2003).
142 Agricultural Ins. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658,
29 O.O. 426 (1944) (“It is now apparently well settled that a bailee for hire
cannot, by contract, exempt himself from liability for his own negligence”).
Statutes may so provide. E.g., 46 U.S.C.A. § 30704 (carriage of goods by
sea).
143 Bisso v. Inland Waterways Corp., 349 U.S. 85, 89, 75 S.Ct. 629,
631, 99 L.Ed. 911 (1955).
144 Sander v. Alexander Richardson Investments, 334 F.3d 712 (8th
Cir. 2003).
145 See, e.g., Allright Phoenix Parking, Inc. v. Shabala, 6 Ariz. App.
21, 429 P.2d 513 (1967) (parking in space in defendant’s parking lot while
owner kept the car keys was not a bailment).
146 See, e.g., Celanese Corp. of America v. Mayor and Council of
Wilmington, 46 Del. 114, 78 A.2d 249 (1950); Vandeventer v. Vandeventer,
132 Ohio App. 3d 762, 726 N.E.2d 534 (1999).
147 E.g., Rock-Ola Mfg. Corp. v. Music & Television Corp., 339 Mass.
416, 159 N.E.2d 417 (1959).
148 See Chapter 41.
149 Command Cinema Corp. v. VCA Labs, Inc., 464 F.Supp. 2d 191
(S.D. N.Y. 2006) (bailed films or tapes not returned); Exxon Mobil Corp. v.
Kinder Morgan Operating L.P., 192 S.W.3d 120 (Tex. App. 2006).
150 See Dan B. Dobbs, The Law of Remedies § 4.2(3) (2d ed. 1993)
(replevin as a means to recover converted property).
151 See § 6.10.
152 See Grynberg v. Questar Pipeline Co., 70 P.3d 1, 43 (Utah 2003)
(“All contract duties, and all breaches of those duties—no matter how
intentional—must be enforced pursuant to contract law.”).
153 Kenyon v. Abel, 36 P.3d 1161 (Wyo. 2001).
154 Kahn v. Quintana, 811 P.2d 458 (Colo. App. 1991); O’Keefe v.
Snyder, 83 N.J. 478, 416 A.2d 862 (1980).
155 See § 6.6.
156 UCC § 2–403 (1); see Jernigan v. Ham, 691 S.W.2d 553 (Tenn.
App. 1984). If title is obtained other than by the owner’s voluntary
transfer, however, the title is void, not merely voidable. See Inmi-Etti v.
Aluisi, 63 Md.App. 293, 492 A.2d 917 (1985).
157 Western Idaho Production Credit Ass’n v. Simplot Feed Lots, Inc.,
106 Idaho 260, 678 P.2d 52 (1984).
158 UCC § 2–403 (2) (“Any entrusting of goods to a merchant that
deals in goods of that kind gives the merchant power to transfer all of the
entruster’s rights to the goods and to transfer the goods free of any
interest of the entruster to a buyer in ordinary course of business.”).
159 See, e.g., Lindholm v. Brant, 283 Conn. 65, 925 A.2d 1048 (2007).
160 See § 44.3.
161 Taylor v. McNichols, 243 P.3d 2010 (Idaho 2010); see § 44.2.
162 Assumpsit or a debt claim would suffice. Constructive trusts could
be applied when the owner could trace the actual funds. See 1 Dan B.
Dobbs, Law of Remedies §§ 4.3(2) & 6.1 (2d ed. 1993).
163 See § 44.2.
164 Kelley Kar Company v. Maryland Casualty Co., 142 Cal. App. 2d
263, 298 P.2d 590 (1956); City of Portland v. Berry, 86 Or. App. 376, 739
P.2d 1041 (1987).
165 See, e.g., Federal Ins. Co. I.C. v. Banco de Ponce, 751 F.2d 38 (1st
Cir. 1984).
166 Hinkle v. Cornwell Quality Tool Co., 40 Ohio App. 3d 162, 532
N.E.2d 772 (1987).
167 See 1 Dan B. Dobbs, Law of Remedies §§ 4.7(1) & 4.7(2) (2d ed.
1993).
168 See, e.g., Trustees of Univ. of D.C. v. Vossoughi, 963 A.2d 1162
(D.C. 2009); C.A.R. Transp. Brokerage Co., Inc. v. Seay, 369 Ark. 354, 255
S.W.3d 445 (2007).
169 See § 6.10.
170 Vines v. Branch, 244 Va. 185, 418 S.E.2d 890 (1992).
171 Foreign Car Ctr., Inc. v. Essex Process Serv. Inc., 62 Mass. App.
Ct. 806, 821 N.E.2d 483 (2005).
172 Cross v. Berg Lumber Co., 7 P.3d 922 (Wyo. 2000). The “waiver of
tort rule,” its peculiar terminology, and its practical effects are explained
in 1 Dan B. Dobbs, Law of Remedies § 5.18 (2d ed. 1993).
173 Some states cope with this problem by allowing the plaintiff the
highest price or market value of the goods between conversion and the
time of trial. See, e.g., Brown v. Campbell, 536 So.2d 920 (Ala. 1988). This
may permit the plaintiff to speculate at the defendant’s expense by
delaying trial. New York gives the plaintiff the highest value of the goods
between the time of conversion and a reasonable time for replacing them,
which seems to offer a better chance for compensation without speculation.
See Ahles v. Aztec Enterprises, Inc., 120 A.D.2d 903, 502 N.Y.S.2d 821
(1986).
174 E.g., Florida Farm Bureau Casualty Ins. Co. v. Patterson, 611
So.2d 558 (Fla. Dist. Ct. App. 1992).
175 Dan B. Dobbs, The Law of Remedies § 5.15 (2d ed. 1993)
176 See Id.
177 E.g., Veeco Instruments, Inc. v. Candido, 70 Misc.2d 333, 334
N.Y.S.2d 321, 324 (Sup. Ct. 1972) (computer program materials converted,
plaintiff recovered costs of reprogramming).
178 To the extent the conversion prevents operation of a profitable
business, the plaintiff may be permitted to recover reasonably proven loss
of profits during the period reasonably necessary to find substitute
chattels. Newbury v. Virgin, 802 A.2d 413 (Me. 2002); Potter v.
Washington State Patrol, 165 Wash. 2d 67, 85, 196 P.3d 691, 700 (2008).
179 Lance Productions, Inc. v. Commerce Union Bank, 764 S.W.2d 207
(Tenn. App. 1988) (in the absence of malicious acts by the defendant, no
emotional distress damages in conversion).
180 Some courts allow recovery of value to the owner when that
amount exceeds the chattel’s market value. See, e.g., Trustees of
University of Dist. of Columbia v. Vossoughi, 963 A.2d 1162 (D.C. 2009).
181 MacGuire v. Elometa Corp., 189 A.D.2d 708, 592 N.Y.S.2d 730
(1993).
182 See § 34.4.
183 See, e.g., Schroeder v. Auto Driveaway Co., 11 Cal. 3d 908, 523
P.2d 662, 114 Cal. Rptr. 622 (1974) (conversion coupled with fraud); Craig
& Bishop, Inc. v. Piles, 247 S.W.3d 897 (Ky. 2008) (when conversion is
especially reprehensible); Newbury v. Virgin, 802 A.2d 413 (Me. 2002)
(evidence of animosity and egregious misbehavior).
184 See Darcars Motors of Silver Springs, Inc. v. Borzym, 379 Md. 249,
841 A.2d 828 (2004) (coupled with verbal taunting and the like).
185 See § 34.6.
186 The common law rights to recover the chattel grew out of the writs
of Detinue and Replevin each circumscribed in particular ways. See 1 Dan
B. Dobbs, Law of Remedies § 4.2(2) (2d ed. 1993).
187 Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40
L.Ed.2d 406 (1974), took a more lenient view where a lienholder
sequestered property without notice, but where there was judicial
supervision and a factual rather than a conclusory affidavit.
188 Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89
S.Ct. 1820, 23 L.Ed.2d 349 (1969) (garnishment of wages without notice or
hearing violates due process); Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct.
1983, 32 L.Ed.2d 556 (1972) (provisional relief under replevin statutes
without a hearing before seizure violates due process); North Georgia
Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d
751 (1975) (garnishment of corporate bank account without hearing, with
no provision for early hearing after garnishment violates due process).
189 E.g., N.Y. CPLR § 214 (three years for “an action to recover a
chattel or damages for the taking or detaining of a chattel”).
190 UCC § 3–118 (action for conversion “of an instrument, for money
had and received, or like action based on conversion, … must be
commenced within three years after the [cause of action] accrues”).
191 E.g., Mont. Code Ann. § 27–2–304 (prescribing special time
computation for property taken after death of owner and before letters of
administration are issued); N.Y. CPLR § 213 (actions by state for
misappropriation of state property, six years).
192 For instance, the general statute may prescribe a period of two
years, as in 12 Okla. Stat. Ann. § 95, while the UCC prescribes three
years. UCC § 3–118.
193 French-Tex Cleaners, Inc. v. Cafaro Co., 893 N.E.2d 1156 (Ind.
App. 2008); cf. Klein v. Gutman, 12 A.D.3d 417, 419, 784 N.Y.S.2d 581, 584
(2004) (“The gravamen of the complaint sounds wholly in fraud, not
conversion.”).
194 Ernest F. Loewer, Jr. Farms, Inc. v. National Bank of Arkansas,
316 Ark. 54, 870 S.W.2d 726 (1994).
195 See 1 Dan B. Dobbs, The Law of Remedies § 4–2(3) (2d. ed. 1993).
196 Id.
197 H. Russell Taylor’s Fire Prevention Serv., Inc. v. Coca Cola
Bottling Corp., 99 Cal. App. 3d 711, 160 Cal. Rptr. 411 (1979); Dentists’
Supply Co. of N.Y. v. Cornelius, 281 A.D. 306, 119 N.Y.S.2d 570 (1953).
198 See, e.g., Davis v. Monahan, 832 So.2d 708 (Fla. 2002); State v.
Seventh Regiment Fund, Inc., 98 N.Y.2d 249, 774 N.E.2d 702, 746
N.Y.S.2d 637 (2002).
199 Bemis v. Estate of Bemis, 967 P.2d 437 (Nev. 1998); Investors
REIT One v. Jacobs, 46 Ohio St. 3d 176, 546 N.E.2d 206 (1989); Kordis v.
Kordis, 37 P.3d 866 (Okla. 2001); Cross v. Berg Lumber Co., 7 P.3d 922
(Wyo. 2000).
200 Husker News Co. v. Mahaska State Bank, 460 N.W.2d 476 (Iowa
1990); Yarbro, Ltd. v. Missoula Fed. Credit Union, 50 P.3d 158 (Mont.
2002).
201 See Zimmerman v. Firstier Bank, 585 N.W.2d 445 (Neb. 1998)
(demand not necessary when it would be futile or unavailing); Pecoraro v.
M & T Bank Corp., 11 A.D.3d 950, 782 N.Y.S.2d 481 (2004) (bank’s
conversion occurred upon its destruction of plaintiff’s safe deposit box, not
at later date of plaintiff’s demand).
202 E.g., Kornegay v. Thompson, 157 Ga. App. 558, 278 S.E.2d 140
(1981); see Annotation, When statute of limitations starts to run against
bailor’s action for recovery, or for damages for conversion or detention of
property deposited for an indefinite time, 57 A.L.R.2d 1044 (1958).
203 von Saher v. Norton Simon Museum of Art as Pasadena, 592 F.3d
954 (9th Cir. 2010) (rejecting special protections for owners of Nazi-looted
art as inconsistent with federal law and applying California’s discovery
rule instead).
204 See Harpending v. Meyer, 55 Cal. 555 (1880) (pawnbroker
accepted the pawn of the plaintiff’s jewelry from Baux, then, when it was
not redeemed, sold it much later; the statute runs from the time he
accepted the pawn).
205 O’Keeffe v. Snyder, 83 N.J. 478, 416 A.2d 862 (1980). According to
the O’Keeffe court, the discovery rule would determine whether the statute
had run in the first place. If the statute had run under that rule, then title
would pass to the thief, just as it would have passed under the adverse
possession rules.
131
Chapter 7
DEFENSES TO INTENTIONAL TORTS

Analysis
A. SELF-DEFENSE AND DEFENSE OF OTHERS
§ 7.1 General Rule
§ 7.2 When Retreat is Required
§ 7.3 Objective vs. Subjective Perceptions of Threat
§ 7.5 Defending Another Person from Apparent Attack
B. DISCIPLINE
§ 7.7 Discipline by Non-Parents in Charge of Minors
C. DEFENSE AND RECOVERY OF PROPERTY
§ 7.8 Defending Possession of Land or Chattels: General Rule
§ 7.10 Deadly Traps in Defense of Property: Spring Guns
§ 7.11 Qualifying and Considering the Deadly-Trap Rules
§ 7.16 Entering Another’s Land to Recapture Chattels
D. PRIVILEGES TO DETAIN OR ARREST
§ 7.17 The Merchant’s Privilege to Detain for Investigation
E. NECESSITY
§ 7.21 Public Entities: Necessity, Police Power, and “Taking”
__________
A. SELF-DEFENSE AND DEFENSE OF OTHERS
§ 7.1 General Rule
A person is privileged to use reasonable force to defend himself
against unprivileged acts that he reasonably believes will cause
him bodily harm, offensive bodily contact, or confinement. The
privilege exists even though his use of reasonable force would
otherwise amount to a tort such as a battery or assault, but limits
are imposed upon the use of deadly force or force likely to cause
grave bodily injury. Similar rules grant a
132
privilege to protect other persons from harm.1 These privileges

to defend self or others are affirmative defenses, on which the
defendant ordinarily has the burden of proof.2
Timing of the use of force. The privilege of self-defense is a
privilege to avoid or minimize harm to oneself. It is not a privilege
to retaliate or avenge harm already inflicted.3 Likewise, it is a
privilege based on immediate need to prevent an imminent
invasion of one’s person,4 or at least on an immediate necessity to
prevent a future harm.5 If the danger reasonably appears to be
imminent, the defendant need not await the first blow before
asserting himself. On the other hand, the privilege of self-defense
cannot be invoked to justify a preemptive strike against someone
who threatens no immediate harm merely on the ground that he
might attack in the future.6
Reasonable force. The force used by the defendant in the
exercise of his privilege must be reasonable under the
circumstances as they reasonably appeared to the defendant, based
on the actual knowledge possessed by the defendant. If the
circumstances warrant, the defendant may commit acts that would
otherwise constitute a battery, an assault, or a false
imprisonment.7 A technical assault, being a mere threat of battery,
may be privileged even when a battery itself would constitute
excessive force.8 The degree of force that is reasonable depends in
large measure upon the harm threatened and in some measure on
the whole circumstances of the case, including the alternatives that
were available to the defendant. In judging reasonableness of the
force, courts do not expect the defendant to make a “microscopic
analysis” of the situation, only to act reasonably considering the
emergency.9 But deadly force, or force threatening grave bodily
harm, is excessive except as a last resort, when the defendant
reasonably believes himself to be attacked by such force.10
Liability for unreasonable force. If he uses excessive force, the
defendant himself becomes, to that extent, a tortfeasor and he will
himself be liable for harms caused by the excess.11 In that case, the
original attacker is privileged to defend against the excess force,12
once the original attacker has attempted to withdraw from his
aggressive posture
133
and no longer poses a threat.13 The defendant is only liable for

the excess, not for the privileged force, but if he has caused an
indivisible harm, one that cannot practically be separated, he is
liable for the entire harm.14
Unreasonable force as intentional tort. When a defendant uses
excessive force in defense, or uses force where no force at all was
reasonable, he is liable for an intentional tort. This is so even
where the defendant is merely mistaken about the need for force,
or the amount of force needed, in which case his actions closely
resemble negligence. Unless some distinct act of negligence is
identified, the question in such a situation is whether the
defendant exceeded his privilege and thus committed an
intentional tort, not whether he was negligent.15
Criminal law self-defense rules. The common law self-defense
rules are often elaborated from the rules used in criminal
prosecutions, which in turn are usually derived from statutes.
Sometimes these criminal statutes expressly apply to civil cases as
well;16 other criminal provisions may be expressly incorporated
into civil statutes.17 Even where the connection is not explicit in a
statute, criminal precedents are often good guides to the tort law
rule. In some instances, however, criminal statutes may contain
provisions at odds with the common law tort rules, and the
concerns of both policy and justice in criminal cases may be
sufficiently different to call for different results in particular
instances. Thus criminal statutes and cases should be consulted in
tort cases, but analogies must be drawn with care.
§ 7.2 When Retreat Is Required
Avoidance or retreat generally. In the usual case, the defendant
may defend himself from harm by using non-deadly force, even if
he could avoid injury by retreating or by complying with some
improper demand asserted by the plaintiff and even if his self-
defense will inflict harm on the plaintiff.18 This is also the rule in
criminal law.19
Negligently threatened harm. But if the harm threatened is
unintentional, merely the result of the plaintiff’s negligence, the
defendant should reasonably avoid the harm if possible, rather
than inflict harm upon the negligent plaintiff.20 In many
imaginable cases, this rule may represent only a specific instance
of the more general rule that only reasonable force should be used.
The plaintiff should not avoid harm to himself by derailing the
negligently driven trolley if he can avoid harm by stepping off the
track.
Evasion or retreat to avoid the use of deadly force. If the
attacker is threatening immediate use of force that reasonably
appears likely to cause death or serious bodily harm, the defendant
may respond with deadly force if that is the only safe alternative.21
134
But if the defendant can avoid the use of deadly force and harm
to himself by a retreat, authorities are divided. The Restatement
Second of Torts, speaking only to tort claims and not to criminal
prosecutions, has it that one must retreat to avoid inflicting deadly
force, provided the retreat can be effected in complete safety.22
Likewise, if the defendant can avoid the use of deadly force and
protect himself adequately by relinquishing some privilege, he
must do that.23
Many courts, usually said to be a majority, traditionally permit
the use of deadly force to counter deadly force without any general
requirement of retreat. Such courts might require some kind of
retreat to show withdrawal by one who was initially the aggressor,
but otherwise allow the defendant to defend himself with deadly
force so long as such force was otherwise a reasonable response to
an apparent threat.24
Most of the cases involve criminal prosecutions, not tort claims,
so the legal ideas on this subject are principally generated in the
criminal process, which as noted above25 may be largely based on
criminal statutes.26 As criminal statutes are amended or
recodified, they may require a retreat when it can be made
safely.27 This process of change in criminal statutes is likely to
encourage courts to adopt a corresponding rule for self-defense in
tort cases. Consequently the tort rule on retreat in a given
jurisdiction may be discovered lurking in the implications of
criminal statutes.
Reasons for a retreat requirement. Reasons given for a retreat
requirement usually emphasize the value of human life, as well as
the danger of an escalating affray. However, it is quite possible
that courts also have in mind a number of practical dangers.
History is written by the winners and lethal self-defense may leave
few or no independent witnesses to contradict the easy claim of
self-defense. In many cases the risk of error on the whole question
of self-defense is quite high because the sudden unfolding of events
and the shifting behaviors of the antagonists baffle attempts to
determine who, at any given moment, is actually the aggressor.
Because the risk of error in determining whether the defendant is
standing his ground or acting on a license to kill is potentially so
high, a requirement of retreat might seem better protection than
some alteration of the proof burdens.
Exceptions to the retreat requirement. Even under the rule that
a safe retreat is preferable to use of deadly force, the defendant is
not required to retreat when he is already in his own home or
dwelling place.28 Nor need the defendant abandon an attempt at a
lawful arrest to avoid using deadly force in self-defense.29 That is
not to say, of
135
course, that deadly force can always be used to effect an arrest,

only that it can be used in self-defense against deadly force.30
§ 7.3 Objective vs. Subjective Perceptions of
Threat
Appearance of attack: objective standards. The defendant can
claim the privilege of self-defense only if he in fact or subjectively
believes that the defense was needed because of harm about to
occur.31 But, with only a little authority to the contrary,32 a mere
subjective belief is not sufficient to invoke the privilege. The
defendant must also entertain an objectively warranted basis for
belief that defense is required. That is, he may use force only if
reasonable people in the same situation would perceive the need
for force.33 The amount of force used comes under the same
objective standard: it is justified only to the extent that it is
reasonable in light of the apparent need.34
Objective judgment about subjectively known facts. The tort law
standard is objective in the sense that it refuses to justify the use
of force on the basis of bizarre perceptions. A chipper “good
morning” from an acquaintance would not be perceived by a
reasonable person as a harbinger of an imminent attack; thus a
defendant who tries to use self-defense to justify a punch in the
greeter’s nose would not succeed on that argument. But while the
tort-law standard requires objective reasonableness, the facts
actually known to the defendant are taken into account. Thus if the
attacker knew that this seemingly friendly acquaintance had
earlier threatened to stab him at their next meeting, the picture
changes entirely and the defensive punch might be seen as entirely
reasonable. A similar conclusion would follow if the attacker knew
that this acquaintance has in the past exploded in violence after
smiling and saying, “Good morning.” That is, the facts known to
the defendant and all the perceptions of events that reasonably
grow out of those facts are taken into account in determining the
reasonableness of the defendant’s actions. Applying this rule, cases
have held that if the defendant knows that his attacker has violent
propensities,35 or if he has been hostile to the defendant in the
past,36 he may reasonably perceive an attack, even though
bystanders who lack such information would not recognize the
need for defense.
Unjustified use of force. The objective standard means that the
defendant’s irrational fears, or a belief that attack is imminent
when there is no evidence of it, do not justify an attack on another,
much less an attack with deadly force.37 Although the facts
subjectively known to the defendant are accepted as a basis for
action, the action
136
itself must reasonably grow out of those facts, or out of

appearances that would be shared by other reasonable people, not
out of idiosyncratic fears or biases.
This application of the objective standard is sometimes
meliorated in practice, however, by the recognition that even the
hypothetical reasonable person cannot make a perfectly cool
judgment about the force needed in an emergency such as a
burglary or a robbery.38
Justified use of force. The objective standard leaves the honest
but irrational defendant subject to tort liability. But it also excuses
the honest and rational response even if that response is mistaken.
The defendant is privileged to respond to an apparent threat of
attack by the plaintiff, even if it turns out later that the plaintiff
never intended to attack at all. So, although mistake itself is not a
defense, the defendant’s mistaken perception of an attack will
warrant reasonable use of force in response, so long as reasonable
people in possession of the facts known to the defendant would
have perceived the plaintiff’s conduct as a threat warranting the
response.39
Self-help. In some instances the law permits a person to remedy
past wrongs by self-help and in so doing, to protect himself against
future wrongs. Within limits, for example, a person harmed by a
nuisance might be privileged to abate it, just as a landowner might
be privileged to remove a trespassing object. Self-help is closely
analogous to self-defense but may be broader.
Self-defense against physical harms. The self-defense privilege
as such is usually raised when the defendant is subjected to
physical threat—assault, battery, or false imprisonment. The usual
case is a threatened harmful battery. The plaintiff advances upon
the defendant with a pitchfork; the defendant responds with a
whip. But self-defense is equally warranted against the elevator
cowboy’s furtive gropings that threaten only offensive, not harmful,
batteries.40 The defendant may also be privileged to defend himself
against negligently caused harm by committing acts that would
otherwise amount to a trespassory tort such as battery.41
Self-defense against words. But the provocative words of an
antagonist do not justify a battery to silence the antagonist’s
utterances.42 Verbal provocation is no defense, although it does
bear on the propriety of punitive damages.43
Self-defense against false imprisonment. The defendant who is
about to be subjected to confinement, or reasonably appears to be,
is ordinarily entitled to use reasonable force to protect himself
against such confinement.44 When the confinement is threatened
by an officer, however, special rules may apply.
Self-defense against an officer’s unlawful arrest. Courts do not
agree about whether the privilege to resist confinement extends to
the case of an unlawful arrest by an officer. A number of courts
hold that even though an officer’s arrest is unlawful, the victim of
137
that arrest has no privilege to resist.45 For this view it is said

that resistance to an officer’s arrest encourages expanding violence
and that the victim of such an arrest today enjoys a good
probability that bail will be available so that he can promptly be
released, that illegally obtained evidence will be excluded from any
trial, and that he will have a damages action to redress the
wrong.46
Some courts, however, still maintain the contrary view,47 which
has a degree of appeal in tort suits. The officer who has attempted
an unlawful arrest meets resistance that causes him harm, then
sues the citizen he wrongfully attacked, so that the citizen might
understandably perceive himself to be twice victimized by the
officer. In such cases the policy of minimizing the risk of expanding
violence conflicts directly with the demands of justice. Although
the choice is no easy matter, the victim’s opportunity for redress in
the courts at a later date suggests that a rule against a right to
resist might substantially satisfy both the desire for peace and the
desire for justice.
§ 7.5 Defending Another Person from Apparent
Attack
A person is privileged not only to defend himself but also to
defend others from an attack that appears to threaten imminent
harm to them. Defense of others follows the same analysis as
defense of one’s own person. The defendant who intervenes to
defend another must believe that the victim would have the
privilege of self-defense, that is, that the attack makes defense
necessary to avoid imminent harm. Reasonable appearances must
also justify that belief, and the force used by the defendant must be
reasonable in light of the threat. Under such conditions, one is
privileged to defend another as well as himself.48
Two views once restricted the intervener’s privilege. The first
was that only family members or those with a special duty of
protection enjoyed the privilege. This now seems to be obsolete.49 A
second restriction was that the intervener stood in the shoes of the
apparent victim of the attack and had no more privilege than the
“victim” had. So if the intervener came to the defense of a “victim”
who in fact was an aggressor or who was being lawfully arrested by
an officer, he would be liable civilly or to criminal prosecution. Put
differently, the good Samaritan who intervened to assist the victim
of an attack took the risk that appearances might be deceiving.50
At the middle of the twentieth century, the view just stated may
have been the common one, so that the privilege for protection of
third persons was limited to interveners who correctly perceived
the need for protection. However, many states have now enacted
criminal statutes that specifically permit the defense of third
persons based on apparent need for such a defense.51 Accordingly,
in criminal prosecutions, the
138
reasonably mistaken intervener may be fully protected.52 Most

criminal statutes do not by their terms prescribe a tort-law rule,53
but at a minimum they reflect an attitude and a policy that will
presumably carry over easily to protect the reasonably mistaken
intervener in tort cases.
B. DISCIPLINE
The state has a general duty to protect children and it may
remove children from the custody of abusive or neglectful parents.
It may also criminally prosecute parents who abuse their children.
As to the civil liability of parents under tort law, parents are still
generally immune from liability in tort to their children in some
states.54 Where the parental tort immunity has been abolished or
limited, parents may still be privileged to carry out specific acts
that, but for the privilege, would count as a tort. In particular,
parents and those who act in the place of parents, are privileged to
apply a degree of force or to impose confinement upon their minor
children,55 a rule largely correlative with the parents’ duty to
provide for their children.
Although the amount and kind of force that is privileged is
obviously limited, it is difficult to formulate a standard describing
the limit. An appropriate standard would establish limits but
would also recognize the wide cultural and personal differences
among parents about methods of child-rearing.56 The Restatement
attempts to solve the problem by saying that the parents may
apply the force or impose the confinement that they reasonably
believe is necessary for controlling or training their children.57
Presumably this standard excludes liability for child spanking even
though many people oppose such punishment, but at the same time
would not exclude liability for burning a child with cigarettes or
locking her in a closet for days without food.
Perhaps recognizing that its standard cannot readily be applied,
the Restatement adds a series of factors to be considered in
determining whether the punishment inflicted is reasonable and
administered for the control or training of the child. Factors
bearing on the question include the age and condition of the child,
the nature of the child’s offense, the possibility of an example to
other children in the family, whether the punishment inflicted is
“necessary and appropriate” to compel obedience, and whether it is
disproportionate, unnecessarily degrading or likely to cause serious
or permanent harm.58
139
§ 7.7 Discipline by Non-Parents in Charge of
Minors
The parents’ privilege to discipline children is extended to
persons who are properly in charge of children but who are not
actually parents of the children.59 This may include schools and
teachers, school bus drivers, child-care attendants, surrogate
parents and others similarly situated. Persons who take the role of
parents, temporarily or permanently, are also accorded a privilege
to discipline the child. However, in some cases at least, the parent
may impose restrictions on the privilege, for example, by forbidding
the babysitter to spank a child.60 In addition, the amount of force
that is acceptable when applied by a parent may be found to be
unreasonable when applied by a person only temporarily in charge
of a child.61
School systems today often regulate the power of teachers and
administrators to impose corporal punishment. Where the school
system itself does not acknowledge the parents’ right to forbid such
punishment, parents usually have no common law power to restrict
it.62 Thus teachers or school administrators are generally
permitted to impose corporal punishment when it is otherwise
within the broad “reasonableness” limits, unless a statute or school
regulation provides otherwise.63 Excessive force, wrongful purpose,
or a disproportionate response to the problem are all grounds for
concluding that the teacher has exceeded the privilege and loses
protection.64
C. DEFENSE AND RECOVERY OF PROPERTY
§ 7.8 Defending Possession of Land or Chattels:
General Rule
The possessor of land or chattels is privileged to use reasonable
force when necessary to defend possession of land or chattels
against intrusion, taking, harm, or continuing trespass. A place of
business, for example, may remove an unruly customer if the
customer will not leave voluntarily, even though the act of touching
the customer would otherwise amount to a battery.65 Or the
possessor of land may remove a trespassing chattel left on his land,
even though the act of doing so would otherwise amount to a
conversion or a trespass to chattels.66 Similar rules give a privilege
of one in possession of a chattel to use reasonable force to prevent a
person from harming or carrying it away,67 and even deadly force
against an animal to prevent its destruction of the defendant’s
property, at least where the defendant’s property is more
valuable.68
140
Courts usually distinguish between defense of property and its

recovery. Once an owner completely loses possession of the land or
the chattel the privilege of defense is exhausted; to recover the
property he must resort to the courts.69
Reasonable force. For the possessor of land or chattels to escape
liability on the basis of this privilege, it must reasonably appear
that any force used to defend possession is needed, adapted, and
proportioned to the protection of the possessor’s interest in
preventing the intrusion or ousting the intruder.70 The defendant
is not ordinarily expected to resort to the courts in the face of an
attempted intrusion or dispossession, but he might be required to
do so if the only alternative is to use force that is clearly
disproportionate to the interests he seeks to protect. For example,
if the plaintiff’s underground telephone cable trespasses on the
defendant’s land without interfering with the land’s use, a
destruction of the cable might be disproportionate to the harm
suffered by the defendant. In such a case, the defendant might be
well advised to seek the aid of the courts rather than to destroy the
cable.71
The defendant must limit the force applied to meet the
apparent need for it. If the defendant uses excess force, he has
exceeded his privilege and will be liable for harms caused by the
excess force.72 As long as there is room for reasonable people to
differ in applying the standards, the question of excessive force is
one for the jury.73
The force justified for the defense of property interests alone is
relatively limited, but if the conflict escalates, self-defense or other
privileges may be invoked and greater force may become
appropriate.74 Most commonly, the defendant’s force will be the
kind that counts as a battery, but in appropriate circumstances, a
mere threat of a battery (an assault) or a confinement of the
intruder may also be appropriate.75
Deadly force. Deadly force, including force likely to cause grave
bodily harm, may not be used against an apparently peaceable
intruder.76 Even a demonstration of deadly force as a threat might
be excessive. But under many criminal statutes, such force may be
used, if otherwise reasonable, to defend possession of a home.77
Some criminal statutes go further, permitting deadly force to
protect personal property under some
141
circumstances, especially in carjacking cases.78 Quite possibly

these statutes would guide the rule to be applied in tort cases as
well. Indeed, some civil statutes expressly incorporate the
provisions of a criminal statute.79 Deadly force may also be used,
under the rules for self-defense and defense of third persons, if the
intruder’s attack itself appears to threaten a person with deadly
force.80
Least force that will be effective. Reasonable force is ordinarily
the least force that is reasonably likely to be effective in defense of
the property interests. If the intruder is peaceable, the defendant
must first request the intruder to depart81 or must otherwise give
him a chance to leave peaceably, unless it is apparent that such a
request is futile or dangerous. If the intruder enters forcibly,
immediate resistance, without a polite request, may be reasonable,
but if deadly force is contempated, a warning would be necessary if
it is safe to give one.
Intruder’s superior privilege. The intruder’s privilege to enter or
remain in cases of necessity to save herself from death or grave
bodily harm will be superior to the possessor’s privilege, at least for
a reasonable period of time.82 Put otherwise, the possessor may not
eject the intruder from a fast-moving train.83 Other privileges of an
intruder, such as the privilege to arrest under a warrant or legal
authority, will likewise supersede or override the possessor’s
privilege.84
Mistake; appearances. The rule governing mistakes in the
exercise of a privilege against an apparent attacker must be stated
in a series of switchbacks, as follows:
(a) Reasonable appearances, not hidden actualities,
determine the existence and scope of the privilege. If it
reasonably appears to the possessor that an intruder is
breaking into the house, the possessor may be justified in
using force even if the intruder turns out to be a paper boy.85
(b) The rule in paragraph (a) is qualified by the rule that
if the intruder is acting in the exercise of his superior
privilege, the defendant’s mistake as to the extent or nature
of the intruder’s privilege is no defense.86 For instance, the
possessor presumably has no privilege to use force to defend
his property against a lawful search or seizure.87
(c) The rule in paragraph (b) is also qualified. If the
intruder misleads the defendant or causes the defendant’s
mistake of facts, the defendant is entitled to act on the
reasonable appearances induced by the intruder. For
example, in a Florida case, testimony was that a number of
police officers in possession of a warrant did not knock or
announce their warrant, but instead cut the power lines,
broke open the door with a sledge hammer, and appeared in
plain clothes with ski masks to raid a poker game. In such
circumstances, the defendant might reasonably mistake his
masked visitors for violent attackers, not
142
guardians of order. Their superior privilege based on the

warrant was nullified because they actively created a
misimpression.88
Protecting other people. The Restatement recognizes that the
defendant may act to protect the property interests of others, or at
least those of family members. The defendant must reasonably
believe that the facts would justify the possessor’s use of force and
must use force proportioned to the facts as they reasonably
appear.89 It would seem that the privilege to protect family
members’ property would include the privilege to use reasonable
force to remove trespassing chattels under the same conditions
that he could do so on his own behalf.
Injury to third persons. As in the case of self-defense, an
energetic defense of property may unintentionally cause injury to
an innocent third person who is in no way involved. So long as the
force used by the defendant against the intruder is reasonable and
privileged force, the defendant is not liable for an intentional tort,
even to the innocent bystander who is injured. In such a case, he
may be liable for negligence if he creates an unreasonable risk to
the bystander,90 but he is not liable otherwise.91
§ 7.10 Deadly Traps in Defense of Property:
Spring Guns
Possessors of land sometimes attempt to protect their property
by unattended devices capable of producing deadly force, that is,
force likely to include either death or grave bodily harm. Such
unattended devices can be called deadly traps. One example is the
spring gun, a weapon rigged with trip wires to fire upon intruders,
sometimes at very close range. Discussion here focuses on that
example. Some other cases that might count as deadly traps are
mentioned elsewhere,92 as are some potential qualifications to the
rules.93
The Restatement’s formulation. The Restatement Second
provides that a spring gun or other deadly trap is permissible only
when the facts are such that the defendant could have used such
force in person.94 The rule can be criticized as infeasible or even as
logically impossible in some cases. For instance, if the defendant
were physically present when the plaintiff attempted to enter the
property, the defendant would ordinarily be required to warn the
plaintiff off before using force and certainly before using deadly
force. No such warning could be given by the traditional spring
gun, so the comparison to a situation in which the defendant is
personally present will at best provide only partial guidance.
However, the Restatement’s ideas, when picked out in detail, work
out to be somewhat similar to the specific rules set out next.
Formulating particular rules. Lacunae in the cases create
uncertainties about the precise rules, but a reasonable
approximation of the overall tendency of the courts can be
expressed as follows.
143
(1) Self-defense. The defendant is privileged to use deadly

traps to protect the persons of himself and others against deadly
force if the use of such traps is otherwise reasonable under the
rules for self-defense, but except as stated in the next paragraph,
there is no independent privilege to protect property interests by
deadly traps.
(2) Protection of dwelling place against felonious entry. (a)
Unless criminal statutes provide or imply otherwise, the defendant
may protect his dwelling place by deadly traps against intruders
who are in fact entering or attempting to enter in the course of a
felony or attempted felony, provided deadly traps are otherwise
reasonable.95 In some states, this privilege may be extended to
permit protection of other buildings against serious depredation.96
But it seems that the defendant uses a deadly trap at his peril, so
that if the spring gun harms or kills a straying child who is not in
fact attempting felonious entry, the privilege is no protection.97 (b)
Criminal statutes forbidding any use of spring guns or other deadly
traps may be construed to modify or eliminate the rule stated in
subparagraph (a).98 (c) Criminal statutes permitting or refusing to
permit the use of deadly force to repel a felony or entry into a
dwelling place may be construed to modify or reinforce the rule
stated in (a).99
(3) Mere trespassers and non-felonious intruders. The
defendant has no privilege to use deadly traps to defend against
mere trespassers or those committing minor crimes outside the
dwelling place. The defendant is liable to such trespassers if they
are injured by the defendant’s deadly trap.100
(4) Unintended harm; negligence. When the defendant creates
a condition on his land that may be dangerous to trespassers but is
not created for the purpose of causing them harm, the defendant is
liable, if at all, only for negligence.101
General disapproval of spring guns and deadly traps. Courts
express dislike for and concern at the use of spring guns and other
deadly traps or “engines of destruction.”102 But cases that reflect
general disapproval of spring guns often do not state precise rules
governing their use or misuse. Many of these cases are ordinary
negligence cases that do not involve spring guns or even
intentional torts. They collaterally condemn the use of spring guns
against trespassers only on their way to saying that the landowner
is not liable for a negligently inflicted injury to a trespasser.103
Cases in this group provide
144
little guidance on the question of the possessor’s justification for

using such force in defense of property, except that they sometimes
cite the leading English case with approval.
Bird v. Holbrook. The major English case that has influenced
American law on this point is Bird v. Holbrook,104 from 1828. The
defendant set a spring gun in his walled garden because he had
previously suffered theft of some of the tulips he raised there. A
neighbor’s peahen escaped and got into the garden. The plaintiff
offered to get it. The plaintiff climbed the wall and called out for
the occupant, but, getting no answer, jumped into the garden to
retrieve the hen. The spring gun was triggered and the plaintiff
was seriously wounded.
The Bird v. Holbrook court found the defendant liable.
Distinguishing earlier authority, one of the judges emphasized that
the defendant had not only failed to give notice that the gun was
there but had tried to keep it secret in order to wound the thief.
Another judge emphasized that if the spring gun were justified, it
would be so only at night when the thief might come. Bird is clear
about the defendant’s liability on the facts, but uncertain about the
defendant’s potential liability to an actual burglar.
Katko v. Briney. The most famous American case is quite
different. In Katko v. Briney,105 one of the defendants had
inherited an unoccupied farm house. For ten years, a series a
housebreaking events repeatedly caused damages. The defendants
boarded the windows and posted no trespassing signs. Eventually
they set a spring gun, a shotgun rigged with a wire from the
doorknob in one of the rooms to the gun’s trigger. No signs or other
warnings about the gun were given.
The Katko plaintiff was a man who was looking for old bottles
and jars. He had been there before a shotgun had been set up. This
time, however, when he opened the door, the gun was triggered
and the blast blew part of his tibia away. He suffered considerable
injury and was criminally punished by a fine of $50 and a 60-day
jail sentence (from which he was paroled).
Although the plaintiff in this case entered the premises with a
minor criminal purpose, he was allowed to recover. The court
rejected the defense that spring guns were permissible means of
defending property on the ground given in the Restatement, that
human life and limb are more important than property interests.
The court appeared to approve the Restatement’s rule formulation.
Some other cases allow recovery by the thief (or his estate), so long
as he is not entering a dwelling place.106
§ 7.11 Qualifying and Considering the Deadly-
Trap Rules
Property vs. Life
Most discussions of deadly force, by traps or otherwise,
emphasize the importance of human life. Human life undoubtedly
represents the single most important factor to be considered.
However, the suggestion that deadly force is invariably
unacceptable because property interests are always small in
comparison to human life is rhetorically appealing but analytically
weak, as is the suggestion that the landowner can always buy
insurance to protect property interests.
145
First, not all property interests are alike. A storehouse of goods

is not like a home. Property in the form of a home, for those lucky
enough to have such property, represents fundamental human
needs and satisfactions, a very personal refuge, the violation of
which is harmful not merely to “property” but to human beings.
Second, the defense of property by deadly force is usually not a
simple exchange of life for property as the rhetoric suggests, but a
risk of life balanced against a certain invasion. Third, if the
mentally competent intruder is fully informed of the specific risk
that entry is likely to result in a shotgun or dynamite blast but
proceeds anyway, human life is surely at risk, but it is the
intruder’s choice. These considerations suggest that the courts may
well be right to imply that defense of a dwelling place by deadly
force, including deadly traps, might be justified, although defense
of other property is not.
It does not follow, however, that deadly traps are always
reasonable, even inside a dwelling place. A trap to impede entrance
into a bedroom in the nighttime when people are present might be
reasonable if the threat is great, but a stick of dynamite that blows
up anyone who rings the front door bell in the daytime is not. Nor
is a deadly trap reasonable if the risk of burglars is nil, but the risk
of a stray child is high.
Warnings
The risk of grave injury or death to relatively innocent
intruders suggests that an advance warning, by signs or
pictographs or otherwise, should ordinarily be required. The
Restatement does not directly require a notice,107 but some cases
may imply that the spring gun might be justified only if such a
notice or warning were given and conversely may imply that if a
notice is given then the spring gun would be justified.108 It is true,
of course, that a locked door warns the trespasser that he is not
wanted,109 but it hardly serves to warn him that he faces death by
a dynamite explosion. If the Restatement is right in suggesting
that the possessor cannot do indirectly by deadly traps what he
cannot do in person, then either an actually communicated
warning or at least a good faith effort to communicate one would be
required. Given the ease and low cost with which a warning can
usually be provided, and the fact that a warning might even
further the landowner’s interests by dissuading some trespassers,
perhaps any privilege should be limited to cases in which the
landowner has reasonably attempted to provide such a warning.110
Although this does not sound controversial, some decisions have
attributed no significance to a warning and have thus permitted
the landowner to create deadly hidden conditions on the land to
repel trespassers.111
Criminal Statutes
The common law rules for deadly traps, at least in the form of
spring guns, may be modified indirectly because a number of
statutes proscribe the use of spring guns
146
altogether, with a provision of criminal penalties for a

violation.112 While criminal-law rules do not automatically carry
over into tort law, they often do. Criminal statutes against spring
guns might be construed to abolish any privilege to use such guns,
although that reading might leave other deadly mechanical devices
available to the landowner under common law rules.
Other deadly traps. The preceding sections have focused on
spring guns as the prime example of a deadly trap, but other
unattended devices, animate or not, could function in much the
same way as a spring gun and could be governed by the same
rules. Vicious dogs or poisonous ponds of toxic waste might fall into
this category. Conceivably, deep pits113 or electrified objects on the
land,114 or chains or wires that might not be visible to a
motorcyclist or snowmobiler,115 might all be deadly traps placed to
exclude trespassers, although in most instances they are more
likely to represent negligence than intentional harm.116
Non-deadly traps. Some unattended devices might count as
traps without being deadly or likely to cause serious bodily harm.
Some of these are undoubtedly permissible, first because they are
customary in the community and thus expected, and second
because they serve useful purposes for the landowner that have
nothing to do with the exclusion of trespassers. A barbed-wire
fence, for example, would normally be a privileged means of
attempting to exclude trespassers as well as a good means for
keeping cattle in.117
Relation to negligence law. Courts considering injuries to a
trespasser will often think of the case as a negligence case rather
than as an intentional tort case with a privilege defense. If the
landowner digs an excavation in order to construct a building, for
example, his purpose is not to trap the trespasser but to exploit his
land. In such a case, the question will be resolved under the rules
of negligence law.
As will be seen in the discussions of landowner negligence,118
landowners may leave dangerous conditions on their property that
may function like a trap even if their purpose is not to exclude
trespassers. In those cases, too, courts are likely to consider the
case under the negligence rules. Those rules correlate closely with
the privilege rules. In general, landowners are not traditionally
required to exercise care for the benefit of trespassers, but they are
not to willfully injure or entrap them, and if they do they are liable
for the harm done.
What counts as a trap or as willful misconduct may thus
become central to resolution of many trespasser-injury cases.
Although some courts expressly analogize a
147
vicious dog kept to guard the perimeter of a house as a trap like

a spring gun,119 others seemingly do not.120 Whether the case is
regarded as an intentional tort with a privilege defense, a
negligence case, or a strict liability case, the most important
consideration is whether the court perceives the dog (or other
condition) as a trap or as a product of willful behavior.121 The
significant features of a trap are that it is unexpected and
unknown, and can’t distinguish between, say, a straying child and
a vicious burglar. These are the features that make it an
unreasonable form of force to protect against a simple trespass,
and which also make the conduct of setting a trap willful if the case
is argued as one involving mere negligence.
Summary
Claimants, squatters, and tenants. Conflicts over possession of
land arise in several materially different settings. A person who
moves into wrongful possession might be a person who believes she
has title, or she might be a squatter or a tenant whose possession
is wrongful because her lease has terminated for nonpayment of
rent. The last is the most common situation. Can the rightful
owner of land use reasonable force to oust the wrongful possessor?
Defense vs. recovery. Legal rules distinguish between defense of
property on the one hand and its recovery or repossession on the
other. The owner-possessor of land may use reasonable force to
defend possession and other interests in the land. The privilege
continues as long as the owner continues to resist the intruder and
contest his right to be there, even if, for the moment, the owner is
literally off the land. In such a case, the intruder has not acquired
a peaceable possession; she is a mere trespasser or has only
“scrambling possession.”122 In this situation, the owner is viewed
as defending his own possession; if he uses no more force than
necessary and reasonable,123 he is privileged and not subject to
liability.
Once the owner loses possession to another person, however,
the owner has no possession to defend and his self-help privilege is
at an end. He may not use force to oust the trespasser who is in
peaceable possession. Although a mere roomer may be subject to
the landlord’s self-help eviction,124 the landowner must ordinarily
resort to judicial process if he is to eject a person in firm possession
of the land. As will be seen, this rule leads to the possibility that if
the owner uses force to repossess his own property, the wrongful
possessor may have a tort claim.
148
Forcible Entry Statutes

The underlying rule was developed from a 14th century English
statute that forbade forcible repossession by the owner125 and from
American Forcible Entry statutes that do the same.126 The
perception and the policy attributed to these statutes is that
forcible repossession creates a risk of a violent response and that
the risk of violence should be minimized by forbidding even
reasonable force.
Forcible entry and detainer statutes attempt to encourage the
owner to use judicial process by offering a carrot and threatening a
stick. The carrot is a provision for a relatively speedy and informal
trial that will put the owner in possession. The stick is a criminal
penalty for resort to force. Many of the statutes are vague about
what counts as “forcible” and wholly ambiguous in their
implications about a private cause of action in favor of the wrongful
possessor.
Tort Actions Against the Rightful Owner for Repossession
Does the statute forbidding forcible reentry mean that the
wrongful possessor should have a tort claim against the owner who
enters with no more force than required to oust the wrongdoer? No
single rule is likely to produce results that are invariably
satisfactory.
No action when owner uses reasonable force. While courts are
divided, quite a few cases have said that the wrongful possessor
has no claim against the repossessing owner, so long as the owner
uses no more force than reasonably necessary to evict.127
Action allowed against owner who uses reasonable force. A large
group of courts, usually said to be the majority,128 permit the
wrongful possessor to recover from the owner who violates the
statute by using force to reenter, even though the amount of force
used is no more than that made necessary by the possessor’s
resistance.129
Action allowed against owner for peaceable repossession. Some
statutes go further and forbid any self-help remedy for the owner
out of possession, at least when that owner is a landlord. In line
with this, some cases actually impose liability upon the owner who
repossesses without using force against the occupant or her goods.
One example of liability for a peaceable retaking is the case of a
landlord’s self-help eviction: the landlord locks the tenant out when
the rent is not paid and becomes liable for doing so, at least where
a speedy remedy in the courts is available.130 Many cases involve
tenants who wrongfully hold over after the lease has expired.
149
Types of Harm to Be Redressed

Liability of the true owner for retaking his own property is
complicated further by the fact that at least three distinct kinds of
cases can arise. Courts and writers do not always carefully
distinguish among them in counting majorities.
First, the owner-defendant’s forcible entry could cause actual
harm to the wrongful possessor, a physical injury or the like, even
if he uses only reasonable force.131 In most cases, physical injury
betokens a breach of the peace and in any event it is plausible to
say that the owner who wishes to use self-help must accept liability
for any actual injuries, intended or not. If he wishes to avoid that
risk, he must resort to judicial process. So when the wrongful
occupant is actually injured, liability is relatively easy to justify.
Second, the owner’s forcible entry could cause harm that would
be legally cognizable in the absence of a privilege, such as a
technical battery that is merely offensive but not harmful. Neither
this claim nor the first one is about the wrongful possessor’s rights
to possession as such, so in an important way they are not about
traditional trespass claims at all.132
Third, the wrongful possessor might suffer injury only in the
sense that he lost possession of property to which he was not
entitled and whatever inconvenience or hardship that might
entail.133 This claim sounds like a claim to a property right
because it is based solely upon dispossession. Yet the wrongful
possessor has no right to possession, so the claim is hardly a
property right in the ordinary sense and it seems unjust if not
inane to put him back in possession.134
Policy
Danger of violence vs. welfare policy. The policy claim for the
rule against forcible repossession by the owner has been that, were
the rule otherwise, violent confrontations would be likely and that
it is better to preserve the government’s “monopoly on force” than
to permit this form of self-help. The fact that riotous behavior
sometimes results from unpopular arrests suggest that there might
be some basis in fact for the claim that retaking property could
lead to bloodshed. In fact, however, in the landlord-tenant cases,
the holdover tenant is almost always quite vulnerable and seldom
in a position to generate an affray. Perhaps the policy today is not
based so much upon the fear that widespread violence would occur
when the landlord repossesses but upon the humane concern that
the tenant would be left homeless.135
Limits appropriate to welfare policy. If courts allow a suit by a
wrongful occupant out of fear that landlords in particular are in a
position to oppress or impose hardships,
150
they must be thinking especially of residential tenants.136 If the

policy is about this kind of welfare rather than about violence, the
tort action might appropriately be allowed to, say, residential
tenants, but not to commercial tenants or squatters. Courts have
sometimes recognized this by allowing the commercial landlord but
not the residential landlord to use reasonable self-help remedies to
repossess the land peaceably where the lease so provides.137
Tenant’s process rights. A third policy judgment in support of
liability for a peaceable retaking of the land is that the plaintiff-
possessor is entitled to be heard in defense of her possession. Her
claim is not for the loss of property or possession itself, but for the
denial of fair judicial process.
Some judges seem to be leaning toward the view that the
possessor is almost always entitled to judicial process and that if
the owner uses a self-help remedy he is committing a tort
analogous to the denial of due process.138 Computation of damages
for denial of a process right, as distinct from a right to possession,
however, is likely to be problematical.139 In any event, under this
analysis, the tort (if any) to the plaintiff is not an ordinary trespass
to real property at all, but rather a highly personal claim to an
intangible right.
No privilege to use force after possession is lost. As already
indicated, the privilege to defend one’s possession of chattels by
reasonable force140 does not generally include a privilege to recover
possession by force141 or threats of force,142 or by an arrest without
a warrant.143 Once possession is clearly lost, the owner must resort
to the courts to recover the chattel if a peaceable recovery is not
possible. Put otherwise, the law favors the rights of actual
possession until the courts can actually determine the rights of the
matter.144
Defending rightful possession and fresh pursuit. A momentary
loss of control during a scuffle is not a loss of possession as long as
the parties are still contending for the chattel. As long as the
scramble continues, the owner or original possessor can use force
in defense of the possession so long as the amount of force is
reasonable and the use of force reasonably appears to be necessary
to defend possession.145 The original possessor
151
may even use reasonable force if needed to recover the chattel

in the course of or at the end of a fresh pursuit.146
Mistake. But the original possessor must be in the right. If the
facts did not justify force, or the amount of force used, he has no
privilege even if he acted under a reasonable mistake.147 Thus the
seller who mistakenly believes that payments are in arrears and
that he has a right to retake the chattel is liable for a conversion if
he takes it,148 the same rule that applies to any other case of
conversion.149
Fraudulent taking. Even where the plaintiff obtained the
chattel by fraudulent means (and is therefore a wrongdoer) he is
entitled to the privilege to use reasonable force to maintain that
possession; he is the rightful possessor until found otherwise.150
The rules imply that the true owner who has lost possession
will be liable for any tort committed in retaking the chattel by
force. The more ironic implication of the rules is such an owner
may not use force to regain it, but the wrongdoer in possession is
privileged to use all the force reasonably necessary to defend the
wrongful possession. Juries intent on short-term justice may
dislike the irony and disregard the legal rule; but judges intent on
long-term peace may in their turn disregard the jury’s justice.151
Peaceable repossession. The problem of repossession often arises
when chattels are sold on credit, under a conditional sales contract
or the like. When the buyer fails to make payments as due, the
seller is ordinarily entitled by the terms of the sales documents to
repossess the chattel. The Uniform Commercial Code, which
governs rights and remedies in chattel sale cases, provides that the
seller may retake possession if he does so “without breach of the
peace;”152 but if the seller uses force, he exceeds that privilege and
he is liable for harms done.153
Repossession against purchaser’s consent. “Breach of the peace”
as used in the Code and in the pre-Code cases is a vague term.
Although some courts find a breach of peace only when the seller
uses substantial force, others treat repossession as a breach of the
peace when it goes beyond the express or implied consent of the
buyer-debtor. So the debtor’s actual resistance to repossession is
enough to convert the seller’s otherwise peaceful efforts into a
breach of the peace.154 The seller is even considered to be in breach
152
of the peace if he continues after a face-to-face demand from the

debtor that he desist and depart.155
Intrusion in private quarters. Even if the debtor is not
physically present and resisting or objecting, the seller may be in
breach of the peace because of the intrusive methods of
repossession or abusive behavior. For example, a seller who enters
the buyer’s enclosed areas without consent may be in breach of the
peace merely by that entry if the quarters are not normally open to
the public or casual users,156 and even more clearly so if he breaks
or picks locks to enter.157 Privacy expectations count here, so that
even entrance into an open but secluded ranch yard might create a
“possibility of immediate violence” that would count as a breach of
the peace.158
Liability for unprivileged repossession. If the repossessor
breaches the peace in repossessing, he becomes liable for harms
done, including physical harm to the plaintiff by way of battery or
otherwise,159 for damages to other property,160 and even for
conversion of the property he repossesses.161 Punitive damages
may be awarded when the creditor’s behavior is wrongful in a
sufficiently serious way.162
§ 7.16 Entering Another’s Land to Recapture
Chattels
Sellers governed by the UCC frequently repossess chattels from
defaulting buyers by entering upon the buyer’s land to obtain the
chattel. Unless the seller breaks in, intrudes in a building, or
invades privacy interests, courts often make no special point of the
fact that entry upon land was required.163 The common law rule is
in accord. It permits a defendant who is entitled to immediate
possession to recover the goods from another’s land (a) if the
defendant did not cause the intrusion of the goods in the first place
and (b) if entry is reasonable as to both time and manner.164
In some cases, the plaintiff-landowner bears some responsibility
for the fact that the goods are on his land, and in such cases the
defendant entitled to possession easily has a right to enter,
demand the goods, and take them without excessive force.165 In
other cases, the goods have arrived upon the defendant’s land
through neutral forces, washed up by a flood, for example, or
carried upon the land by third persons. Here again, the defendant
is privileged to enter and to take the goods, but in these cases the
153
defendant must pay for damage done in the process.166 Such a

case seems indistinguishable from the case of necessity, which
requires just such a payment.167
Authorities say that if the defendant’s chattel comes onto the
plaintiff’s land by the defendant’s own fault, the defendant has no
privilege to remove it except by the peaceful agreement of the
possessor, unless public or private necessity can be shown.168 So
phrased, the rule might impose liability upon a defendant whose
negligently parked car rolls onto the plaintiff’s land, not only for
the damage done but also for the separate act of “trespass” in
recovering the car. Unless the land possessor is entitled to a lien
upon the car for some reason, however, it seems useless to suggest
that the car owner must pay nominal damages for a peaceable
retaking of his car and downright bad policy to suggest that the
landowner could properly use force to prevent retrieval of the car.
Perhaps it is no problem. The possessor of the land will often agree
to a peaceable retaking of the chattel if no harm has been done,
since if he does not agree, he might be held liable for a
conversion.169
D. PRIVILEGES TO DETAIN OR ARREST
§ 7.17 The Merchant’s Privilege to Detain for
Investigation
Traditional rule. The traditional common law recognized no
privilege of private persons to detain for investigation. The
merchant who suspected shoplifting could make an arrest, but only
if the shopper was in fact guilty of a felony, or if a felony had in fact
been committed and the shopper was reasonably suspected.170
These privileges provided little protection, since individual thefts
might never reach the felony level and since in any event the
merchant might be mistaken about whether a theft took place. The
limited privilege to arrest for a misdemeanor171 would not
ordinarily apply, since shoplifting does not normally induce breach
of the peace.172 Nor would the privilege to recapture wrongfully
taken chattels help if the merchant was mistaken.173
Judicial creation of special privileges for merchants. As
shoplifting became a major source of losses to merchants, some
courts created a privilege more protective than the traditional one.
Under this more protective privilege, a merchant who reasonably
believes that a person has committed a theft or has attempted a
theft may detain the person for a limited period of time and for the
limited purpose of investigating the facts.174 The Restatement
endorses this privilege.175
154
Limited scope of the privilege. In the leading case, a detention of

twenty minutes was held to be a justified exercise of the
privilege.176 The defendant is “entitled to use a reasonable amount
of compulsion in order to effect that restraint.”177 But the
defendant loses the privilege if he detains the plaintiff either for an
unreasonable time or in an unreasonable manner.178 In other
words, the defendant’s probable cause179 to believe in the plaintiff’s
guilt does not justify an improper method of questioning. Thus the
defendant who unnecessarily handcuffs the plaintiff or makes an
exhibit of her in the presence of other customers may lose the
privilege.180
Statutory privileges for merchants. Most states have enacted
statutory versions of the merchant’s privilege, and the
contemporary cases are often based on the statute rather than on
the common law.181 Some of the statutes reflect a purpose to
protect other repeat-theft victims such as farmers, libraries and
museums.182
Triggering the statutory privilege. The statutory privilege is
normally triggered only if the merchant has probable cause to
believe a theft has occurred or is being attempted. Since the theft
would not normally be completed until the shoplifter has actually
passed the checkout counter or left the store, some statutes
specifically provide that the privilege to detain for investigation is
triggered if the suspect conceals goods183 or removes anti-theft
tags.184 Others appear to erect the privilege only if the merchant
reasonably believes an actual theft has been completed.185 Some
courts have said that the statute must be strictly construed, so
that, for example, the merchant may be privileged to detain a
suspected thief but not a suspected counterfeiter.186
Limiting the statutory privilege. As with the Restatement’s
privilege, the statutory privilege is usually limited both in duration
and in scope. The merchant can investigate, or under some
statutes can summon police officers when he has probable cause,187
but he has no privilege to exact a punishment.188 And the
merchant may detain the suspected shoplifter for a reasonable
time to accomplish the investigation or perhaps to await the
arrival of officers, but may not detain for longer than a brief or
“reasonable” period189 or by improper or unnecessary force.190
Some authority has permitted an actual search of
155
the plaintiff’s person and objects within her immediate control,

subject only to a reasonableness limitation,191 and some statutes
expressly allow searches.192 In determining whether the detention
was carried out in a reasonable manner, some courts have
permitted the plaintiff to introduce evidence of the merchant’s own
training or policy manuals.193
Issues in the merchant detention cases. Under the common law
or a statute, two distinct questions can arise when the merchant
claims a privilege to detain. In the first place, no arrest or
detention is justified unless the merchant has probable cause194 to
believe that the plaintiff has stolen or has attempted to steal
something. But once probable cause is established, the second
question is whether the merchant’s acts exceed the privilege. As to
this second question, the presence of probable cause matters not at
all. These two issues dominate most of the cases, but in some cases,
the issue may be seen to be less about the privilege than about the
plaintiff’s consent to questioning, or even more fundamentally
about the lack of any real detention. If the defendant merely
questions the plaintiff without any implied force or threat, the
defendant may not have detained the plaintiff at all—and if not,
there is no tort.195
Scope of privilege. An arrest takes a person into custody for the
very particular purpose of bringing the person before a court or
similar body administering the law.196 To claim the privilege of
arrest, the defendant must be acting in line with such a purpose. A
confinement for the purpose of extorting a settlement is not an
arrest;197 nor is confinement for the purpose of holding a witness
who is not charged with crime,198 with some exceptions.199 Some
brief stops or detentions, made for the purpose of investigation
rather than bringing a charge, may be privileged under separate
rules.200
Private persons. Private persons are privileged to effect an
arrest for criminal offenses in limited circumstances. This privilege
permits a private defendant to arrest the plaintiff when (1) the
plaintiff has in fact committed the felony for which he is
156
arrested, or (2) someone has committed that felony201 and the

defendant reasonably suspects the plaintiff as the person
responsible, or (3) the plaintiff has committed a breach of the peace
in the presence of the defendant.202 Beyond this, the private
defendant has a limited privilege to effect an arrest to prevent an
attempted felony in his presence.203 These citizens’ arrests, like
their official counterparts, are protected only so long as they are
made without unreasonable and excessive force.204
Police officers and warrantless arrests. Police officers enjoy the
same privilege to effect an arrest as private persons, and in
addition may arrest without a warrant on reasonable suspicion of a
felony even if it turns out that no felony has actually been
committed.205 No warrantless arrest is privileged, however, unless
the defendant has probable cause, that is, reasonable objective
grounds to believe that a crime was committed and that the
plaintiff committed it.206 Officers may be permitted by statute to
arrest for misdemeanors committed in their presence even though
no breach of the peace is threatened.
Arrests by officers with warrants. Peace officers are not liable in
tort for properly executing a facially valid,207 lawfully issued
warrant208 or other judicial process according to its terms, even
where the arrested person turns out to be innocent. The protection
is lost if the warrant is clearly invalid on its face—that is, if its
invalidity can be determined simply by reading it.209 A warrant
authorizing the arrest of the plaintiff for investigation does not
charge a crime and is not valid on its face; the officer who arrests
the plaintiff on such a warrant will be liable for false arrest. And
even a valid warrant does not shield officers from liability for
excessive force or other unreasonable means of acting under the
warrant; an arrest warrant for traffic violations would not
ordinarily justify the use of deadly force.210
Harm from manner of seizure or from subsequent acts. A
warrant fair on its face protects against tort liability for the arrest
or seizure it authorizes, but not for any post-arrest or post-seizure
torts. For instance, once an arrest is made, the arrested person
cannot be held indefinitely without trial; someone, whether the
arresting officer or another, must provide a trial or release the
detainee.211 Similarly, an officer who seizes
157
the plaintiff’s property under a facially valid writ is not liable

for the seizure, but may become liable for harm resulting to the
property because of his failure to protect it while it is in his
custody.212 In the same way, the officer is liable for improper
methods of seizure, for instance, in negligently causing damage to
property seized,213 and of course in going beyond the authority of
the writ.
E. NECESSITY
In a limited group of situations, partial or complete privileges
protect defendants whose acts in emergencies would otherwise
count as trespass to land or chattels or as conversion. The
emergency and the privilege it generates are both called
“necessity.” The rules recognize two distinct privileges, private
necessity and public necessity.
Rule and example. A commonly cited example of private
necessity is the case of a sudden storm on a lake that justifies the
defendant in putting his small boat ashore on the plaintiff’s
property to avoid serious threat to his life or property. He is
privileged to enter for such a purpose. That privilege means: (a) he
is not liable for damages when no harm is no done, (b) he is under
no civil disability that attaches to “trespassers,”214 and (c) the
landowner has no privilege to push him back into the lake.215 If the
emergency or necessity arises from the defendant’s own fault, it
seems probable that he would lose the immunity from liability,216
but still retain the privilege of shelter on the land so long as the
alternatives were unsafe.217
Serious and imminent threat required to invoke the privilege.
The privilege can only be invoked when the defendant is
threatened, or reasonably appears to be threatened, with serious
harm and the response is reasonable in the light of the threat.218
Courts have not suggested that homeless persons could occupy
private property on the ground that they have no home of their
own.219 And the harm threatened must not only be imminent but
harm that is legally cognizable. For instance, abortion protestors
who enter a clinic cannot claim a necessity defense on the ground
that their trespasses are necessary to prevent perfectly legal
abortions.220 For the same reason, a homeowner has
158
no privilege to enter the plaintiff’s land to stop the perfectly

legal drainage of plaintiff’s water upon the defendant’s land.221
Limits of the privilege: liability for actual harm. The private
necessity privilege is “incomplete”222 because it protects against
liability for technical trespass and deprives the landowner of his
usual counter-privilege to rebuff the trespasser, but it does not
protect the defendant against liability for actual harm done.223 The
skier who is lost in a snow storm may enter your cabin for shelter
without liability. But if he burns the furniture to stay warm he
must pay for its destruction.
The Vincent case. The leading case establishing liability for
actual harm is Vincent v. Lake Erie Transportation Co.224 In
Vincent, a ship had been tied at the plaintiff’s dock unloading goods
in Duluth, Minnesota. A violent storm arose. The captain
prudently determined that it was unsafe to put out into the lake.
He renewed the lines that held the ship at the dock, although this
meant that by action of the waves, the ship repeatedly struck the
dock and damaged it, a fact of which the captain was aware.
Although the dock owner would have no privilege to defend his
possession or property by casting the ship off, the dock owner was
allowed to recover for actual harm to the dock. The case generates
a lot of discussion because the result might be explicable on
different grounds and because the scope of the principle is perhaps
debatable.225 But the simplest explanation is that if the captain
was a trespasser, he is liable for actual harm done in spite of his
incomplete privilege to trespass.
In the traditional view of public necessity, a defendant who
damages, destroys, or uses the plaintiff’s property in the
reasonable belief that by so doing he can avoid or minimize serious
and immediate harm to the public is protected against liability for
intentional torts by a complete privilege.226 Sometimes the
privilege is claimed by a public official acting in the public interest,
but even a private individual enjoys its protection.227
To invoke the privilege the actor must show that (a) public
rather than private interests are involved, (b) he was reasonable in
believing that action was needed, and (c) the action he took was a
reasonable response to that need.228 In contrast to the privilege of
private necessity, the public necessity privilege is complete because
it protects against liability for actual harm inflicted and not merely
against liability for technical trespass.
159
Examples. A time-honored example of the public necessity

privilege is the case of the defendant who destroys the plaintiff’s
house to prevent the spread of fire that would otherwise engulf a
whole city. The defendant who reasonably perceives the need for
such action cannot be held liable, even for actual harm inflicted.229
Similarly, the plaintiff’s property may be destroyed to prevent the
spread of disease230 or to prevent its use as an agent of destruction
by the public enemy such as an invading army.231
Private individuals pleading public necessity. The rule of
nonliability is easy to understand when it is applied to protect
individuals as distinct from public entities. The individual
defendant acting in an emergency is not likely to take action to
protect against dire public loss if he will be personally liable for the
losses that will certainly be inflicted. His interests in such a case
may be largely divorced from those of the public at large, so
immunity from liability is perhaps needed to induce his beneficial
action. Perhaps more importantly, it would be unjust to make a
single individual bear the loss reasonably incurred for the benefit
of the entire public. This explains why the rule is otherwise in the
usual case of private necessity, where the actor has incentive
enough to protect his own life and needs no immunity to encourage
him.
Injustice to property owner. The public necessity rule recognizes
that it would be unjust to impose the costs of saving the city upon
its benefactor by making him pay for the destruction of the
plaintiff’s property. But if it is unjust to make the actor pay the
costs of securing the city’s safety, is it equally unjust to make the
private property owner sacrifice his property for the benefit of
other citizens?
In two kinds of cases the uncompensated destruction of the
plaintiff’s property to protect the public seems fully justified. First,
the property destroyed for the public benefit might have been lost
in any event. To create a firebreak by destroying a house in the
path of the fire is only to hasten a loss that seemed inevitable in
any event. In a sense, the destruction causes no appreciable loss at
all.232 Second, destruction of property without compensation is
justified when the property itself threatens others. So a building
about to fall upon a city street could be removed, or a diseased herd
of cattle could be killed,233 or infected bedding burned234 to prevent
contagion.
§ 7.21 Public Entities: Necessity, Police Power,
and “Taking”
Arguments for public liability. If the destruction of the
plaintiff’s property actually saves the city, or avoids a substantial
risk to it, the plaintiff can plausibly argue that the
160
city should pay for the benefit it received at the plaintiff’s
expense. Such a claim sounds like one for restitution to prevent
unjust enrichment or something very close to it.235 If the city was
not in fact saved but the plaintiff’s property was intentionally
damaged or destroyed by a city’s agent, it is still right that the
public as a whole bear the costs of harms inflicted to serve public
purposes rather than that the individual be forced to sacrifice his
property for the good of others.236 The Restatement’s formulation
of the public necessity privilege protects the individual actor but
leaves open the possibility of public entity liability.237
Constitutional compensation requirements. Public entities are
constitutionally required to pay just compensation for property
they take.238 For example, if a city wants to create a park or a
firebreak, it can take the land of private landowners for such public
purposes, but it must pay for what it takes.
Police power. Although a public entity is liable for a taking of
the plaintiff’s property, courts have said it is not liable for harms
resulting from the exercise of police or regulatory power239 and not
liable for destruction as a matter of public necessity.240 When the
destroyed property presented no dangers to others and would not
have been destroyed anyway, it is hard to see the difference
between cases of “taking” for which compensation must be paid and
cases of public necessity (or police power) for which no
compensation is due.
Law enforcement damaging private property. The problem is
presented when law enforcement officers break into the plaintiff’s
home or business to capture a felon who has barricaded himself
there without the plaintiff’s connivance or permission. Capturing
the felon is surely a public good that is at least analogous to public
necessity; certainly one can think of the officer’s action in
damaging property as “police power.” But it is just
161
as easy to say that the officer’s action is a kind of taking or
damage of property for which the public entity ought to pay.
Minnesota, whose constitution requires payment for property
“taken, destroyed or damaged for public use,” has said that in this
kind of case the entity must pay for the harm to private property of
an innocent bystander,241 although not for damage inflicted in the
course of a proper arrest or detention of the property owner
himself.242 There is a little support for the idea elsewhere.243 But
other courts have rejected the inverse condemnation or just
compensation claim, holding that police entries upon private land
are proper law enforcement activities and either privileged under
the public necessity rule or protected as an exercise of legitimate
police power. These holdings say the entity is not liable under the
just compensation clause for damage to or destruction of property
caused by officers incident to a proper arrest or a person244 or
seizure of property245 or even for damage done in a search for
evidence.246
Necessity vs. other emergencies. The necessity issue in these
cases arises only when acts on behalf of a public entity would, if not
privileged, amount to an intentional trespassory tort. If the person
acting for public does not intend an invasion of the plaintiff’s
interests,247 then the case will be analyzed in terms of negligence
or possibly as a civil rights violation, not as an intentional tort with
a possible necessity defense. In such cases any emergency faced by
the defendant is relevant, but it bears on whether the defendant
has committed a tort at all.248
Claims against one benefitted by the plaintiff’s loss in other
settings. The idea that a defendant might be liable for benefits he
gained as a result of the losses imposed on the plaintiff is a broad
one, not limited to necessity cases. But the language in which the
idea is considered and the particular rules applied are enormously
different when the defendant commits no intentional invasion of
the plaintiff’s interest. High-speed police chases may represent
emergencies and may risk harm to innocent bystanders for the
public good, but such harm is not normally intended; when it is
not, the innocent victim must prove negligence249 or civil rights
violations250 and must face any defenses
162
appropriate to such cases.251 The concern that innocent

individuals should not be made to sacrifice for others’ benefit can
be reflected in the imposition of strict liability on a defendant who
can force all beneficiaries to share the costs, but such liability is
imposed only in special cases and it is not addressed by the
necessity rules appropriate to intentional torts.252
________________________________
1 See § 7.5.
2 E.g., Boyer v. Waples, 206 Cal.App.2d 725, 24 Cal.Rptr. 192
(1962); Winn v. Inman, 119 Ill.App.3d 836, 457 N.E.2d 141 (1983). When
the plaintiff claims excessive force by an arresting officer, however, the
plaintiff may be required to prove excessive force as part of his prima facie
case.
3 Restatement Second of Torts § 63, cmt. g (1965).
4 E.g., Martin v. Estrella, 107 R.I. 247, 266 A.2d 41 (1970).
Imminent, impending, and “then and there” are phrases used in most of
the definitions. Courts sometimes emphasize that the privilege depends
upon the fact that resort to courts is impractical.
5 See Robert Schopp, Barbara Sturgis & Megan Sullivan, Battered
Woman Syndrome, Expert Testimony, and the Distinction between
Justification and Excuse, 1994 U. Ill. L. Rev. 45, 66 ff. (1994).
6 Restatement Second of Torts § 63, cmt. g (1965).
7 Id. § 70.
8 Id. § 70(2).
9 In re Paul F., 543 A.2d 255, 257 (R.I. 1988) (“Rather we should
view the disruptive and emotional furor that was created by Addison as
the events must have appeared to Paul at the time.”).
10 Martin v. Yeoham, 419 S.W.2d 937, 950 (Mo. App. 1967) (to justify
deadly force “[t]here must be reasonable cause of apprehension of
imminent danger of death or great bodily harm”).
11 E.g., Jahner v. Jacob, 233 N.W.2d 791 (N.D. 1975). One who
inflicts bodily harm or offense by using more force than permitted by the
privilege is liable for a battery, whether the force is used in self-defense or
in the exercise of some other privilege, such as the privilege to make an
arrest. Schumann v. McGinn, 307 Minn. 446, 240 N.W.2d 525 (1976).
12 Fraguglia v. Sala, 17 Cal.App.2d 738, 62 P.2d 783 (1936);
13 Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807
(1984); Jelly v. Dabney, 581 P.2d 622 (Wyo. 1978).
14 Restatement Second of Torts § 71, cmt. b (1965).
15 District of Columbia v. Chinn, 839 A.2d 701 (D.C. 2003) (on this
reasoning, holding it was error to submit both a battery and a negligence
theory to the jury.).
16 E.g., Ala. Code § 13A–3–23(d) (immunizing person using deadly
force in self-defense in some circumstances from both criminal prosecution
and civil action); Iowa Code Ann. § 707.6.
17 See, e.g., Tex. Civ. Prac. & Remedies Code § 83.001 (2007)
(expressly incorporating Penal Code § 9.42 provision that allows the use of
deadly force in defense in particular circumstances).
19 2 Wayne R. LaFave, Substantive Criminal Law 142, 155 (2d ed.
2003).
21 Id. § 65(1).
22 Id. § 65.
23 Id. § 65(3). But he need not relinquish his dwelling place or the
privilege of making a lawful arrest. Nor of course need he sacrifice his own
body to some physical attack. Id., § 65(1)(b).
24 E.g., People v. Willner, 879 P.2d 19 (Colo. 1994).
25 See § 7.1.
26 See, e.g., Tex. Penal Code § 9.32 (c) & (d).
27 E.g., Conn. Gen. Stats. Ann. § 53a–19(b) (defendant required to
retreat before using deadly force, with some exceptions).
28 E.g., Hanauer v. Coscia, 157 Conn. 49, 54, 244 A.2d 611, 614
(1968) (“Where a person, without fault, is assaulted in his home, he is not
required to retreat from his assailant but may resist even to the extent of
seriously injuring his adversary when it becomes necessary.”); State v.
Johnson, 261 N.C. 727, 136 S.E.2d 84 (1964).
29 Fields v. Dailey, 68 Ohio App.3d 33, 587 N.E.2d 400 (1990);
Restatement Second of Torts § 65(2)(c) (1965).
30 See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1
(1985).
31 E.g., McCoy v. Taylor Tire Co., 254 S.W.2d 923, 924 (Ky. 1953);
Tatman v. Cordingly, 672 P.2d 1286 (Wyo. 1983).
32 See Moor v. Licciardello, 463 A.2d 268 (Del. 1983) (applying in
civil cases a purely subjective standard for self-defense contained in a
criminal statute).
33 Crabtree v. Dawson, 119 Ky. 148, 83 S.W. 557 (1904) (defendant,
believing that one Noble was about to attack him with bricks, and that the
plaintiff was Noble, struck the plaintiff and knocked him down a flight of
stairs; the defendant could rely on reasonable appearances even though he
struck the wrong person); Jahner v. Jacob, 233 N.W.2d 791 (N.D. 1975);
Restatement Second of Torts § 63, cmt. i (1965).
34 See Boyer v. Waples, 206 Cal.App.2d 725, 727, 24 Cal.Rptr. 192
(1962).
35 See Martin v. Estrella, 107 R.I. 247, 266 A.2d 41 (1970)
(defendant’s knowledge of plaintiff’s reputation for violence was
admissible); Villines v. Tomerlin, 206 Cal.App.2d 448, 452, 23 Cal.Rptr.
617 (1962) (defendant could “offer evidence of prior specific acts of violence
or prior threats of violence to show that plaintiff is a turbulent and
dangerous man and the defendant’s knowledge thereof”).
36 Bradley v. Hunter, 413 So.2d 674 (La. App. 1982) (woman’s past
trouble with man who approached her cursing and threatening; a shot in
the head was self-defense, though the man appeared to have no weapon);
Maichle v. Jonovic, 69 Wis.2d 622, 230 N.W.2d 789 (1975) (course of
attacks by two boys).
37 Tatman v. Cordingly, 672 P.2d 1286, 1290 (Wyo. 1983).
38 See, e.g., Bennett v. Dunn, 507 So.2d 451 (Ala. 1987).
39 Hanauer v. Coscia, 157 Conn. 49, 54, 244 A.2d 611, 614 (1968);
Restatement Second of Torts § 63, cmts. h & i (1965).
40 Restatement Second of Torts § 63(1) (1965) (privilege extends to
offensive as well as harmful contact).
41 Id.
42 Crotteau v. Karlgaard, 48 Wis.2d 245, 179 N.W.2d 797 (1970).
43 Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157, 1162
(1982).
45 Rhiner v. City of Clive, 373 N.W.2d 466 (Iowa 1985); State v.
Haas, 134 N.H. 480, 596 A.2d 127 (1991); State v. Hobson, 218 Wis.2d 350,
577 N.W.2d 825 (1998).
46 See State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977).
47 White v. Morris, 345 So.2d 461, 466 (La. 1977) (“we cannot
abrogate our citizens’ time-honored right to resist an unlawful arrest”);
State v. Wiegmann, 350 Md. 585, 714 A.2d 841 (1998).
49 See Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d
807 (1984); Hartley v. Oidtman, 410 S.W.2d 537 (Mo. App. 1966).
50 People v. Young, 11 N.Y.2d 274, 183 N.E.2d 319, 229 N.Y.S.2d 1
(1962).
51 E.g., N.Y. Penal Law § 35.15; Conn. Gen. Stats. Ann § 53a–19. See
also Danny Veilleux, Annotation, Construction and Application of Statutes
Justifying the Use of Force to Prevent the Use of Force Against Another,
71 A.L.R.4th 940 (1989).
52 See People v. Smith, 19 Ill.App.3d 704, 312 N.E.2d 355 (1974). The
Model Penal Code § 3.05 provides for full protection of the mistaken
intervener if “under the circumstances as the actor believes them to be, the
person whom he seeks to protect would be justified in using such
protective force.”
53 Some state criminal codes do contain provisions covering civil
liability. E.g., Iowa Code Ann. § 707.6 (“No person who injures the
aggressor through application of reasonable force in defense of a second
person may be held civilly liable for such injury.”).
54 See Chapter 23.
56 Cf. Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364
N.Y.S.2d 859 (1974) (emphasizing different economic, education, cultural,
ethnic and religious attitudes toward child-rearing that make it difficult to
judge parental negligence toward a child).
58 Id. § 150.
59 See id. § 147(2).
60 See id. § 153.
61 See id. § 150(a).
62 Ingraham v. Wright, 430 U.S. 651, 662, 97 S.Ct. 1401, 1407, 51
L.Ed.2d 711 (1977); Restatement Second of Torts § 153(2) (1965).
63 See Rinehart v. Western Local School Dist. Bd. of Education, 87
Ohio App.3d 214, 621 N.E.2d 1365 (1993); see also R.D. Hursh,
Annotation, Teacher’s civil liability for administering corporal punishment
to pupil, 43 A.L.R.2d 469 (1955). The result is similar under federal civil
rights laws. See Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51
L.Ed.2d 711 (1977) (use of force that would be privileged as reasonable
under common law rules does not violate students’ consitutional rights).
64 E.g., Thomas v. Bedford, 389 So.2d 405 (La. App. 1980).
65 Griego v. Wilson, 91 N.M. 74, 570 P.2d 612 (Ct. App. 1977).
67 Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d
319 (1994); Restatement Second of Torts §§ 77 & 260 (1965). Some statutes
so provide. See, e.g., Iowa Code Ann. § 707.6.
68 Grabenstein v. Sunsted, 237 Mont. 254, 772 P.2d 865 (1989)
(shooting a dog was privileged where dog was killing defendant’s
chickens).
69 See §§ 7.13 & 7.14.
70 Person v. Children’s Hospital National Medical Center, 562 A.2d
648 (D.C. 1989); Restatement Second of Torts § 77 (1965).
71 See State v. Patch, 145 Vt. 344, 488 A.2d 755 (1985).
72 E.g., Terrell v. Hester, 182 Ga.App. 160, 355 S.E.2d 97 (1987).
73 See Vancherie v. Siperly, 243 Md. 366, 221 A.2d 356 (1966); Fields
v. State, 21 So.2d 412 (Miss. 1945).
74 See Restatement Second of Torts § 79 (1965) (deadly force if
intruder appears to threaten serious bodily harm).
75 Id. § 80. The Restatement expressly recognizes that an assault
may be privileged even if it threatens harm that would, if actually
inflicted, be excessive. Restatement Second of Torts § 81(2) (1965); State v.
Lord, 617 A.2d 536 (Me. 1992) (“A threat to use deadly force is the
equivalent of nondeadly force.”). Not all assaults are privileged, of course;
the reasonableness of the force used must be determined on a case-by-case
basis. See, e.g., Appelgren v. Walsh, 136 Ill.App.3d 700, 483 N.E.2d 686
(1985) (threat of shooting was excessive under the circumstances);
Scheufele v. Newman, 187 Or. 263, 210 P.2d 573 (1949) (firing a rifle away
from the plaintiff but a spot ten feet away from him was excessive force for
ejecting a peaceable trespasser).
77 E.g., Fla. Stat. Ann. § 782.02. Statutes sometimes provide
protection indirectly by calling for a presumption that force used inside a
dwelling is used for self-defense, thus invoking whatever privilege exists to
use deadly force in self-defense. E.g., Cal.Penal Code § 198.5.
78 See La. Rev. Stat. Ann. § 14:20 (4); Tex. Penal Code § 9.42.
79 See, e.g., Tex. Civ. Prac. & Remedies Code § 83.001 (2007)
(incorporating Penal Code § 9.42).
81 MacDonald v. Hees, 46 D.L.R. 3d 720 (N.S. 1974); Restatement
Second of Torts § 77(c) & cmt. j (1965).
82 E.g., Depue v. Flatau, 100 Minn. 299, 111 N.W. 1 (1907); see §
7.19.
83 See Restatement Second of Torts § 77, cmt. i and Ill. 10 (1965).
84 State v. Haas, 134 N.H. 480, 596 A.2d 127 (1991).
85 Smith v. Delery, 238 La. 180, 114 So.2d 857 (1959).
86 Magnuson v. Billmayer, 189 Mont. 458, 616 P.2d 368 (1980)
(easement rights).
87 See Restatement Second of Torts § 77(a) & cmt. d (1965).
88 State v. White, 642 So.2d 842 (Fla. App. 1994). The common law
“knock and announce” requirement is part of the reasonableness rule of
the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914,
131 L.Ed.2d 976 (1995).
89 Restatement Second of Torts § 86 (1965) (defendant must
reasonably believe that the facts are such that the possessor would have a
privilege to use force in defense of the property).
90 E.g., Passovoy v. Nordstrom, Inc., 52 Wash.App. 166, 758 P.2d 524
(1988).
91 Polando v. Vizzini, 97 N.E.2d 59 (Ohio App. 1949); Restatement
92 See § 7.12.
93 See § 7.11.
94 Restatement Second of Torts § 85 (1965). A number of cases make
a similar statement. E.g., Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d
237, 44 A.L.R.2d 369 (1951).
95 This is the implication but not the specific holding in a number of
cases. E.g., Scheuerman v. Scharfenberg, 163 Ala. 337, 50 So. 335 (1909);
Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237, 44 A.L.R.2d 369
(1951); cf. Katko v. Briney, 183 N.W.2d 657 (Iowa 1971) (if the trespasser
is committing a “felony of violence” or one punishable by death).
96 Scheuerman v. Scharfenberg, 163 Ala. 337, 50 So. 335 (1909).
97 See Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237, 44
A.L.R.2d 369 (1951) (“[O]ne who sets a spring gun or trap does so at his
peril.”); Restatement Second of Torts § 85, cmt. d (1965).
98 See § 7.11.
99 E.g., Fla. Stat. Ann. § 782.02.
100 McKinsey v. Wade, 136 Ga.App. 109, 220 S.E.2d 30 (1975); Katko
v. Briney, 183 N.W.2d 657 (Iowa 1971).
101 The rules of negligence law that hold a landowner liable to a
trespasser if the landowner’s acts, or the condition he tolerates on the
land, amounts to willful or wanton misconduct are closely analogous to the
rules that hold the landowner has exceeded his privilege if he uses
unreasonable force to repel a trespasser. Under one view, a trap would
represent “willful and wanton” misconduct on the landowner’s part. See,
e.g., Harper v. Kampschaefer, 549 N.E.2d 1067 (Ind. App. 1990).
102 See Annotation, J.D. Perovich, Use of Set Gun, Trap, or Similar
Device on Defendant’s Own Property, 47 A.L.R.3d 646 (1973).
103 E.g., Fox v. Warner-Quinlan Asphalt Co., 204 N.Y. 240, 97 N.E.
497 (1912); Weitzmann v. A.L. Barber Asphalt Co., 190 N.Y. 452, 83 N.E.
477 (1908); Gramlich v. Wurst, 86 Pa. 74 (1878).
104 Bird v. Holbrook, 4 Bing. 628, 130 Eng. Rep. 911 (C.P. 1828).
105 Katko v. Briney, 183 N.W.2d 657 (Iowa 1971).
106 McKinsey v. Wade, 136 Ga.App. 109, 220 S.E.2d 30 (1975) (young
man breaking into vending machine killed when dynamite bomb went off,
liability).
107 The Restatement seems to say that no warning is required, but
provides that giving a warning is not enough if the force is otherwise
unjusitifed. Restatement Second of Torts § 85, cmt. c (1965).
108 Larmore v. Crown Point Iron Co., 101 N.Y. 391, 394, 4 N.E. 752,
754 (1886) (“he cannot, without giving any warning, place thereon spring-
guns or dangerous traps”). Similarly, some cases refer to the “hidden”
character of “engines of destruction” like spring guns. Mendelowitz v.
Neisner, 258 N.Y. 181, 179 N.E. 378 (1932).
109 Allison v. Fiscus, 156 Ohio St. 120, 128, 100 N.E.2d 237, 241, 44
A.L.R.2d 369 (1951).
110 See Richard A. Posner, Killing or Wounding to Protect a Property
Interest, 14 J. Law. & Econ. 201, 214 ff. (1971).
111 Doehring v. Wagner, 80 Md.App. 237, 562 A.2d 762 (1989) (cable
stretched across private road to deter motorcyclists).
112 720 Ill.Comp. Stat. 5/24–1(a)(5); Iowa Code Ann. § 708.9; Mich.
Comp. L. Ann. § 750.236; Minn. Stat. Ann. § 609.205.
113 Gramlich v. Wurst, 86 Pa. 74 (1878) (decedent, attempting to
rescue another, was an innocent trespasser who fell in pit and was killed;
no recovery, seemingly because the landowner had no intent to harm and
was not negligent).
114 Cf. Miller v. General Motors Corp., 207 Ill.App.3d 148, 565 N.E.2d
687 (1990) (trespasser injured in touching electrical object on the land, but
since his presence could not have been anticipated, the landowner was not
liable for negligence).
115 Cf. Harper v. Kampschaefer, 549 N.E.2d 1067 (Ind. 1990) (cable
across road killed ATV operator).
116 See § 20.2.
118 See Chapter 20.
119 Brewer v. Furtwangler, 171 Wash. 617, 18 P.2d 837 (1933)
(allowing inadvertent trespasser to recover for injuries caused by vicious
dog attack).
120 See Bramble v. Thompson, 264 Md. 518, 287 A.2d 265, 64 A.L.R.3d
1031 (1972) (refusing to impose liability upon a landowner whose allegedly
vicious dog attacked an inadvertent trespasser, on the ground that
keeping vicious dog would not “be willful or wanton misconduct or
entrapment”).
121 Compare Brewer v. Furtwangler, 171 Wash. 617, 18 P.2d 837
(1933), with Bramble v. Thompson, 264 Md. 518, 287 A.2d 265, 64
A.L.R.3d 1031 (1972), and Harper v. Kampschaefer, 549 N.E.2d 1067 (Ind.
1990), with Doehring v. Wagner, 80 Md.App. 237, 562 A.2d 762 (1989).
122 See National Garment Co. v. City of Paris, Missouri, 655 S.W.2d
515 (Mo. 1983).
123 Schwinn v. Perkins, 79 N.J.L. 515, 78 A. 19 (1910).
124 Harkins v. Win Corp., 771 A.2d 1025, on rehearing, 777 A.2d 800
(D.C. 2001). Similarly, hotel guests are not tenants and do not get the
benefit of the forcible entry statutes. See Young v. Harrison, 284 F.3d 863
(8th Cir. 2002).
125 5 Richard II c. 7.
126 E.g., Cal. Civ. Proc. Code § 1159; N.Y. Real Prop. Acts § 853. Many
of these statutes are poorly drafted.
127 E.g., Watson v. Brown, 67 Haw. 252, 686 P.2d 12 (1984); Shorter v.
Shelton, 183 Va. 819, 33 S.E.2d 643 (1945).
128 See Annotation, Right of Landlord Legally Entitled to Possession
to Dispossess Tenant without Legal Process, 6 A.L.R.3d 177 (1966). The
majority may be made up at least partly of cases in which actual personal
injury or harm to chattels was the result of the entry.
129 See Daluiso v. Boone, 71 Cal.2d 484, 455 P.2d 811, 78 Cal.Rptr.
707 (1969); Tatro v. Lehouiller, 147 Vt. 151, 153, 513 A.2d 610, 611 (1986).
130 Berg v. Wiley, 264 N.W.2d 145 (Minn. 1978) (adopting the
“modern trend” on this point).
131 E.g., Daluiso v. Boone, 71 Cal.2d 484, 455 P.2d 811, 78 Cal.Rptr.
707 (1969) (confrontation caused distress and heart problems).
132 Hemmings v. Stoke Poges Golf Club, [1920] 1 K.B. 720, [1981] All
E.R. 798 (C.A. 1919) (plaintiff as wrongful occupant was led gently by the
hand off the premises; his wife would not budge from her chair, and she
and the chair were carried out).
133 Freeway Park Buildings, Inc. v. Western States Wholesale Supply,
22 Utah 2d 266, 451 P.2d 778 (1969).
134 Cf. Schwinn v. Perkins, 79 N.J.L. 515, 516, 78 A. 19 (1910) (courts
have observed “the seeming injustice of a judgment restoring the
possession of property to one not rightfully entitled thereto”).
135 See Randy G. Gerchick, Comment, No Easy Way Out: Making the
Summary Eviction Process a Fairer and More Efficient Alternative to
Landlord Self-Help, 41 U.C.L.A. L.Rev. 759 (1994).
136 City of Evanston v. O’Leary, 244 Ill.App.3d 190, 614 N.E.2d 114
(1993) (“[T]here is discernible a certain public policy, based upon humane
considerations of the wrong, oppression and hardships which might ensue,
if families, in any kind of weather, at any time of day or night, might be
thus forcibly ejected from their homes with all their effects without notice
or warning.”).
137 Rucker v. Wynn, 212 Ga.App. 69, 441 S.E.2d 417 (1994); Craig
Wrecking Co. v. S.G. Loewendick & Sons, Inc., 38 Ohio App.3d 79, 526
N.E.2d 321 (1987).
138 Friends of Yelverton, Inc. v. 163rd Street Improvement Council,
Inc., 135 Misc.2d 275, 514 N.Y.S.2d 841 (1986) (specific analogy to due
process).
139 In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252
(1978), a schoolboy was suspended without a due process hearing, but he
would have been suspended had a hearing been held as well. So proper
process would have changed nothing in the ultimate result. The Court
limited recovery to nominal damages in the absence of any proven harms.
140 See §§ 7.8 to 7.12.
141 Bobb v. Bosworth, 16 Ky. 81 (1808) (violence may not be used to
regain possession once lost).
142 Barnes v. Martin, 15 Wis. 263 (1840) (approaching with a knife to
regain chattel).
143 A shopkeeper may, however, enjoy a privilege to detain briefly for
investigation. See § 7.17. As to the law of arrest without a warrant, see §
7.18.
144 See Adams v. Department of Motor Vehicles, 11 Cal.3d 146, 520
P.2d 961, 113 Cal.Rptr. 145 (1974).
145 McLean v. Colf, 179 Cal. 237, 176 P. 169 (1918); Spelina v. Sporry,
279 Ill. App. 376 (1935).
146 See State v. Elliot, 11 N.H. 540 (1841); Restatement Second of
Torts § 103 (1965) (one may chase down the converter of chattels upon
timely discovery of the wrong, even if that is hours later).
147 See Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d
807 (1984); Restatement Second of Torts § 100, cmt. d (1965).
148 E.g., Binder v. General Motors Acceptance Corp., 222 N.C. 512, 23
S.E.2d 894 (1943).
149 See § 6.4.
150 Hodgeden v. Hubbard, 18 Vt. 504 (1846), overruled on other
grounds, Loverin v. Wedge, 102 Vt. 138, 146 A. 248 (1929).
151 See Barnes v. Martin, 15 Wis. 263 (1862) (jury gave a handsome
verdict to one Barbara, who came brandishing a knife to the defendant’s
land to retrieve her wandering cow; reversed).
152 UCC § 9–503. See 2 James J. White & Robert S. Summers,
Uniform Commercial Code § 14.3 (5th ed. 2002).
153 Even if the breach of the peace is caused, not by the seller, but by
the seller’s independent contractor, the seller may be held liable on the
theory that peaceable repossession is a nondelegable duty. MBank El
Paso, N.A. v. Sanchez, 836 S.W.2d 151 (Tex. 1992). As to liabilities of those
who employ independent contractors, see §§ 431 & 432.
154 See Nixon v. Halpin, 620 So.2d 796, 798 (Fla. Dist. Ct. App. 1993)
(“A secured party who insists on taking possession after resistance by the
debtor faces the consequences of its use of force…. He acts at his peril, and
exposes himself to severe potential liability….”).
155 Smith v. John Deere Company, 83 Ohio App.3d 398, 614 N.E.2d
1148 (1993).
156 E.g., Bloomquist v. First National Bank of Elk River, 378 N.W.2d
81 (Minn. App. 1985) (bank’s agents removed broken window to enter
garage, then opened garage door from the inside and repossessed the
debtor’s tools; the debtor was not present but the bank knew that he
objected).
157 Cf. Berg v. Wiley, 264 N.W.2d 145. (Minn. 1978) (landlord’s
lockout of tenant to repossess premises)
158 Salisbury Livestock Co. v. Colorado Central Credit Union, 793
P.2d 470 (Wyo. 1990).
159 Smith v. John Deere Company, 83 Ohio App.3d 398, 614 N.E.2d
1148 (1993).
160 E.g., Star Bank, N.A. v. Laker, 637 N.E.2d 805 (Ind. 1994); Giese
v. NCNB Texas Forney Banking Center, 881 S.W.2d 776 (Tex. App. 1994).
161 Henderson v. Security National Bank, 72 Cal.App.3d 764, 140
Cal.Rptr. 388 (1977); Bloomquist v. First National Bank of Elk River, 378
N.W.2d 81 (Minn. App. 1985) (apparently intending a full recovery of
market value of the goods).
162 Star Bank, N.A. v. Laker, 637 N.E.2d 805 (Ind. 1994).
163 See, e.g., Salisbury Livestock Co. v. Colorado Central Credit
Union, 793 P.2d 470 (Wyo. 1990) (trespass action might lie in favor of the
plaintiff, but only if the entry could count as a breach of the peace).
164 See Arlowski v. Foglio, 105 Conn. 342, 135 A. 397, 53 A.L.R. 481
(1926); Shehyn v. United States, 256 A.2d 404 (D.C. 1969).
165 In Wheelden v. Lowell, 50 Me. 499 (1862), the landowner had
fraudulently induced the defendant to sell a horse. Upon discovery of the
fraud, the defendant rescinded and entered the land to get the horse. This
was held to be no trespass. The court heavily emphasized the fault of the
plaintiff landowner.
166 Wippert v. Burlington Northern Inc., 397 F.Supp. 73 (D. Mont.
1975) (defendant’s railroad train derailed because of high winds; entry
upon the plaintiff’s property to reclaim the train was not a trespass, but
defendant was liable for actual damages caused); Restatement Second of
Torts § 198(2) (1965).
167 See § 7.19.
169 Id. § 237 liability for failing to surrender posession to one entitled
to it, when demand is made).
170 See Florida v. Jones, 461 So.2d 97, 99 (Fla. 1984) (“The harsh
corollary of the common-law rule was that, if the suspicion of theft or
interference proved to be erroneous, the detention was per se unreasonable
and not warranted by the circumstances.”).
171 See § 7.18.
172 Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807
(1984).
173 Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 261 A.2d
731 (1970); see § 7.14.
174 Collyer v. S.H. Kress Co., 5 Cal.2d 175, 54 P.2d 20 (1936). The
privilege was recognized earlier in the exactly analogous case of a
restaurant patron suspected of attempting to leave without paying for a
meal. Jacques v. Childs Dining Hall Co., 244 Mass. 438, 138 N.E. 843, 26
A.L.R. 1329 (1923).
175 Restatement Second of Torts § 120A (1965).
176 Collyer v. S.H. Kress Co., 5 Cal.2d 175, 54 P.2d 20 (1936).
177 Id.
178 Jacques v. Childs Dining Hall Co., 244 Mass. 438, 138 N.E. 843, 26
A.L.R. 1329 (1923).
179 See § 7.18.
180 See Dillard Dep’t Stores, Inc. v. Silva, 148 S.W.3d 370 (Tex. 2004)
(security guard forced shopper to the floor, handcuffed him and questioned
him in that position; privilege exceeded).
181 E.g., Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d
807 (1984); Lerner Shops of Nevada, Inc. v. Marin, 83 Nev. 75, 423 P.2d
398 (1967). See Annotation, Robert A. Brazener, Construction and effect,
in false imprisonment action, of statute providing for detention of
suspected shoplifters, 47 A.L.R.3d 998 (1973).
182 E.g., Fla. Stat. Ann. § 812.015 (farmers).
183 E.g., Iowa Code Ann. § 808.12.
184 E.g., 11 Del. Code Ann. § 840.
185 Md. Cts. & Jud. Proc. Code § 5–402.
186 Taylor v. Super Discount Market, Inc., 212 Ga.App. 155, 441
S.E.2d 433 (1994).
187 Ariz. Rev. Stats. § 13–1805; 11 Del. Code Ann. § 840.
188 Ariz. Rev. Stats. § 13–1805; Cal. Penal Code § 490.5(b)(1); Colo.
Rev. Stats. § 18–4–407.
189 E.g., Mass. Gen. L. Ann. 231 § 94B. However, some statutes, if
read literally, would appear to authorize a full scale arrest of the
suspected shoplifter. Ala. Code § 15–10–14.
190 Wal-Mart Stores, Inc. v. Mitchell, 877 S.W.2d 616, 618 (Ky. 1994)
(“statute does not provide the merchant or its employees with a license to
manhandle or browbeat a child in an attempt to discover if he has
unlawfully taken merchandise”); K-Mart Corp. v. Washington, 109 Nev.
1180, 866 P.2d 274 (1993).
191 See Wal-Mart Stores, Inc. v. Cockrell, 61 S.W.3d 774 (Tex. App.
2001) (Wal-Mart’s requirement that shopper lift the bandage on his liver-
transplant wound was unreasonable and beyond the scope of the
privilege). Many states do not allow the merchant to search the detained
person. E.g., Gau v. Smitty’s Super Valu, Inc., 183 Ariz. 107, 901 P.2d 455
(Ct. App. 1995); Johnson v. K-Mart Enterprises, Inc., 98 Wis.2d 533, 297
N.W.2d 74 (Ct. App. 1980).
192 See Wal-Mart Stores, Inc. v. Bathe, 715 N.E.2d 954 (Ind. App.
1999) (discussing such statutes).
193 K-Mart Corp. v. Washington, 109 Nev. 1180, 866 P.2d 274 (1993)
(manual was not the standard or test of liability, but was evidence on the
question of reasonableness); see also D. A. Johns, Annotation,
Admissibility of Defendant’s Rules or Instruction for Dealing with
Shoplifters, in Action for False Imprisonment or Malcious Prosecution, 31
A.L.R.3d 705 (1970).
194 See § 7.18.
195 See Taylor v. Super Discount Market, Inc., 212 Ga.App. 155, 441
S.E.2d 433 (1994) (questions about suspected counterfeit bill not
“unlawful”); Sweeney v. F.W. Woolworth Co., 247 Mass. 277, 142 N.E. 50,
31 A.L.R. 311 (1924); see also §§ 4.14 & 4.15 (confinement requirement in
false imprisonment claim).
197 Cf. § 39.14 (liability for abuse of process).
198 Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843
(2004) (detention of witnesses must be confined to basic stops that
“interfere only minimally with liberty”).
199 See e.g., 18 U.S.C.A. § 3144 (the federal material witness statute,
allowing arrest of recalcitrant witnesses to secure their testimony in
criminal proceedings).
200 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
201 If no felony has actually been committed by anyone, even the
reasonably mistaken citizen arrester loses the privilege. Restatement
202 By analogy to rules for officer-arrests, the Iowa court has held that
knowledge of one citizen is imputed to those who act in concert with him to
effect the arrest, noting that “in the presence” has been liberally
construed. Rife v. D. T. Corner, Inc., 641 N.W.2d 761 (Iowa 2002).
203 Cal. Penal Code § 837; Gortarez v. Smitty’s Super Valu, Inc., 140
Ariz. 97, 680 P.2d 807 (1984); Restatement Second of Torts § 119 (1965)
(summarizing all the situations).
204 Whitten v. Cox, 799 So.2d 1 (Miss. 2000); Restatement Second of
Torts § 131 (1965).
2011 & Supp.).
207 Thomas v. Marion County, 652 N.W.2d 183 (Iowa 2002)
(protecting officer who arrested the father of the actual suspect, when
father’s name was mistakenly written on the warrant); Restatement
Second of Torts §§122 & 124 (1965). The same rule applies to other forms
of judicial process. See, e.g., Rock v. Antoine’s, Inc., 57 Del. 164, 197 A.2d
737 (1964) (writ of replevin).
208 A warrant is a writing directing seizure of a person or goods; it
must be issued by a court having authority to issue warrants. See
209 E.g., Allison v. Cnty. of Ventura, 68 Cal.App.3d 689, 137 Cal.Rptr.
542 (1977).
210 Restatement Second of Torts § 131 (1965) (deadly force authorized
if the warrant charges treason or felony and the officer reasonably believes
that the arrest cannot be effected without such force).
211 Cf. Baker v. McCollan, 443 U.S. 137, 144, 99 S.Ct. 2689, 2694, 61
L.Ed.2d 433 (1979) (arrested person “could not be detained indefinitely in
the face of repeated protests of innocence even though the warrant under
which he was arrested and detained met the standards of the Fourth
Amendment. For the Constitution likewise guarantees an accused the
right to a speedy trial.”).
212 Yeager v. Hurt, 433 So.2d 1176, 1180 (Ala. 1983).
213 See Jeffres v. Countryside Homes of Lincoln, Inc., 214 Neb. 104,
333 N.W.2d 754 (1983).
214 See Rossi v. DelDuca, 344 Mass. 66, 181 N.E.2d 591 (1962) (child
entered defendant’s land to escape a dog in the street only to be attacked
by the defendant’s dog; under the statute she was not entitled to recover if
she was a trespasser, but under the necessity privilege she was not a
trespasser and could recover).
215 Ploof v. Putnam, 81 Vt. 471, 71 A. 188 (1908) (on facts similar to
those in the text).
216 Thus where the defendant knew a danger might arise and could
have arranged to avoid it he cannot claim the necessity privilege. Currie v.
Silvernale, 142 Minn. 254, 171 N.W. 782 (1919).
217 Cf. Depue v. Flateau, 100 Minn. 299, 111 N.W. 1 (1907) (when
supper guest became ill in very cold weather, landowner could not refuse
to allow him to stay the night; semble, this would hold true even if the
guest was voluntarily intoxicated).
218 Lange v. Fisher Real Estate Dev. Corp., 358 Ill.App.3d 962, 832
N.E.2d 274 (2005).
219 See London Borough of Southwark v. Williams, [1971] 1 Ch. 734,
[1971] 2 All.E.R. 175. Cf. Tobe v. City of Santa Ana, 9 Cal.4th 1069, 40
Cal.Rptr.2d 402, 892 P.2d 1145 (1995) (upholding an ordinance prohibiting
various kinds of “camping” on open public property).
220 Cyr v. State, 887 S.W.2d 203 (Tex. App. 1994). Other protestors
have also failed in their assertion of necessity and related defenses. E.g.,
Commonwealth v. Hood, 389 Mass. 581, 452 N.E.2d 188 (1983)
(trespassing to distribute leaflets against nuclear arms race).
221 Grant v. Allen, 41 Conn. 156 (1874).
222 Francis Bohlen, Incomplete Privilege to Inflict Intentional
Invasions of Interests of Property and Personality, 39 Harv. L. Rev. 307
(1926).
223 Currie v. Silvernale, 142 Minn. 254, 171 N.W.2d 782 (1919);
Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221
(1910); Ruiz v. Forman, 514 S.W.2d 817 (Tex. App. 1974); Restatement
Second of Torts § 197(2) (1965).
224 Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W.
221 (1910).
225 A broader possible basis for Vincent is that one who acts obtains
the benefits of his action and therefore should pay the costs he inflicts
upon others. See Richard Epstein, A Theory of Strict Liability, 2 J. Legal
Stud. 151, 157–160 (1973).
226 Restatement Second of Torts §§ 196 (land) & 263 (chattels) (1965).
The Restatement uses the term “imminent public disaster.” Some courts
insist that the public necessity defense requires proof of an “imminent
danger” and an “actual emergency.” Brewer v. State, 341 P.3d 1107
(Alaska 2014).
227 Restatement Second of Torts § 196, cmt. e (1965).
228 Beach v. Trudgain, 43 Va. 345 (1845) (defendants could not justify
destruction of plaintiff’s house as a firebreak if spread of fire could have
been avoided otherwise).
229 Surocco v. Geary, 3 Cal. 69 (1853); American Print Works v.
Lawrence, 23 N.J.L. 9 (1850), aff’d, 23 N.J.L. 590 (1851).
230 Seavey v. Preble, 64 Me. 120 (1874) (removing wallpaper from
smallpox sick room justified); South Dakota Dep’t of Health v. Heim, 357
N.W.2d 522 (S.D. 1984) (destruction of diseased herd justified); State v.
Mayor and Aldermen of Knoxville, 80 Tenn. 146 (1883) (nuisance created
by smoke from repeated burnings of smallpox tainted goods was justified).
231 United States v. Caltex, Inc., 344 U.S. 149, 73 S.Ct. 200, 97 L.Ed
157 (1952) (destruction of oil and oil terminal as invading troops were
entering the city of Manila); Harrison v. Wisdom, 54 Tenn. 99, 116 (1872)
(destruction of whiskey as federal troops approached; in determining
necessity jury could “consider the rapid advance of a hostile army known
to be undisciplined and licentious, and whose occupation of captured
places in the line of march was known to be accompanied by acts of
besotted vandalism”).
232 In United States v. Caltex, Inc., 344 U.S. 149, 73 S.Ct. 200, 97
L.Ed 157 (1952), if the plaintiff’s oil facilities not been destroyed, the
enemy army would have seized them, and would probably have destroyed
the facilities when the fortunes of war were reversed to prevent the
facilities’ return to the United States.
233 South Dakota Dep’t of Health v. Heim, 357 N.W.2d 522 (S.D.
1984).
234 Mayor of Savannah v. Mulligan, 95 Ga. 323, 22 S.E. 621, 622
(1895) (“To destroy property because it is a dangerous nuisance is not to
appropriate it to a public use….”).
235 Restitution is measured by the value of what the defendant
received, not by the loss of the plaintiff. In this context, however, the value
received by the defendant would not be the entire value of all property
saved but what reasonable people would pay for the right to destroy the
plaintiff’s property (under eminent domain or otherwise). See 1 Dan B.
Dobbs, Law of Remedies § 4.5(1) (2d ed. 1993).
236 “The … guarantee that private property shall not be taken for a
public use without just compensation was designed to bar Government
from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.” Armstrong
v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554
(1960). “[I]f it was an act done by the officers having competent authority
… and especially if the act was done with an honest view to obtain for the
public some lawful benefit or advantage, reason and justice obviously
require that the city, in its corporate capacity, should be liable to make
good the damages sustained by an individual in consequence of the acts
thus done.” Thayer v. Boston, 36 Mass. 511 (1837). In Owen v. City of
Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the
Court quoted the language above from Thayer and added that it would be
uniquely amiss if government “were permitted to disavow liability for the
injury it has begotten.” These arguments can be phrased to apply to
private defendants: “[I]t seems simply unconscionable to exact that
subsidy from the individual victims of serious accidents by depriving them
of their right to compensation from the enterprises responsible for their
injuries.” Gary T. Schwartz, Tort Law and the Economy in Nineteenth-
Century America: A Reinterpretation, 90 Yale L. J. 1717 (1981).
237 Restatement Second of Torts § 196, cmts. e & h (1965).
238 U.S. Const. Amend. V (“nor shall private property be taken for
public use, without just compensation”); U.S. Const. Amend. XIV (“nor
shall any State deprive any person of life, liberty, or property, without due
process of law”). State constitutions contain similar provisions, which must
be construed by each state high court. See, e.g., Dunn v. City of Milwaukie,
355 Or. 339, 328 P.3d 1261 (2014) (“taking” requires intent); City of San
Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (same).
239 Farmers Ins. Exchange v. State, 175 Cal.App.3d 494, 221
Cal.Rptr. 225 (1985). The police power locution is likely to be used when
the plaintiff’s claim is grounded explicitly on the constitutional right to
just compensation for taking of property, while the language of necessity is
likely to be used when the plaintiff’s claim is grounded in common law
tort.
240 See Brewer v. State, 341 P.3d 1107 (Alaska 2014) (landowners had
no constitutional right to compensation if state’s actions were justified by
public necessity).
241 Wegner v. Milwaukee Mutual Ins. Co., 479 N.W.2d 38, 23
A.L.R.5th 954 (Minn. 1991).
242 Dokman v. Cnty. of Hennepin, 637 N.W.2d 286 (Minn. App. 2002).
243 Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980).
244 Customer Co. v. City of Sacramento, 10 Cal.4th 368, 895 P.2d 900,
41 Cal.Rptr.2d 658 (1995) (state Constitution requiring compensation for
property taken or damaged cannot be read literally to cover law
enforcement activities; the law of necessity and corresponding police power
confirms that narrow reading of the constitutional provision); Kelley v.
Story County Sheriff, 611 N.W.2d 475 (Iowa 2000) (valid forced entry and
arrest of man visiting tenant in plaintiff’s building, no taking and
immunity barred tort claim); Sullivant v. City of Oklahoma City, 940 P.2d
220 (Okla. 1997) (entry of tenant’s premises under a warrant, landlord
could not recover under the takings clause, but might have a tort recovery
if warrant was executed illegally).
245 Emery v. State, 297 Or. 755, 688 P.2d 72, 44 A.L.R.4th 341 (1984)
(seizing and dismantling truck as evidence on murder charge, no
obligation to restore truck).
246 McCoy v. Sanders, 113 Ga.App. 565, 148 S.E.2d 902 (1966)
(damage done in draining pond to search for body on the plaintiff’s
property, no public entity liability for exercise of police power grounded in
necessity); Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714 (1907)
(searching for body in river, officers trampled the plaintiff’s property; no
tort liability for acts done for public benefit).
247 See § 4.2.
248 See § 10.7.
249 Cairl v. City of St. Paul, 268 N.W.2d 908, 100 A.L.R.3d 807 (Minn.
1978), rejected strict liability for damage done in high-speed chases. A
ridiculous, cartoon-like chase is described in City of Pinellas Park v.
Brown, 604 So.2d 1222 (Fla. 1992) (upholding the plaintiff’s allegations of
police negligence).
250 Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686
(2007) (deputy acted reasonably in high-speed chase, thus not violating
innocent motorist’s Fourth Amendment rights); see generally §§ 22.14 to
22.16.
251 California, for example, provides blanket immunities in this
situation. See Hernandez v. City of Pomona, 46 Cal.4th 501, 94
Cal.Rptr.3d 1 (2009). In federal civil rights cases, a police officer may
mount a powerful qualified immunity defense. See, e.g., Lytle v. Bexar
County, Tex., 560 F.3d 404 (5th Cir. 2009); Pasco ex rel. Pasco v.
Knoblauch, 566 F.3d 572 (5th Cir. 2009). For more detailed explorations of
the qualified immunity, see §§ 22.14 & 22.15.
252 Strict liability could be imposed in such cases as a means of
indirectly requiring benefitted persons to share in the idiosyncratic loss,
but this does not require any discussion of necessity.
163
Chapter 8
CONSENT
Analysis
§ 8.8 Mistake or Misrepresentation Negating Consent
§ 8.10 Consent Obtained by Abuse of Power or Position
__________

A person who consents or apparently consents, by words or
conduct, to acts that would otherwise count as an intentional tort1
cannot recover damages for those acts. Consent is sometimes
treated as an affirmative defense, with the defendant bearing the
burden to prove that the plaintiff consented, or apparently
consented, to the defendant’s acts.2 Other courts regard the
absence of consent as a fact that must be proved as part of the
plaintiff’s prima facie case.3 While who bears the burden of proof
may appear rather muddled in the case law, it is quite clear that in
many cases, consent marks a deficiency in the plaintiff’s prima
facie case at the most fundamental level: where the plaintiff
consents, the defendant’s act is simply not tortious.4 For example,
the defendant does not intend an offensive battery when he
touches the plaintiff with the plaintiff’s
164
consent; such consent negates any tortious intent, so the

plaintiff fails in one element of her proof on the prima facie case.
Among the trespassory and intentional torts, consent defeats
the claim for battery,5 for false imprisonment,6 and for trespass to
land or chattels7 or conversion.8 For example, a sexual touching
would be a battery if it is not effectively consented to, but if the
plaintiff effectively consents to the touching, there is no battery.9
Similarly, if the plaintiff consents to a friendly wrestling match
with the defendant, the plaintiff cannot recover for injuries
sustained in that match.10 The same principle applies when the
plaintiff consents to practical jokes or other sportive play.11 An
analogous rule applies in some but not all negligence cases under
the name of assumption of risk.12
The consent principle is general in its scope, firm in its
acceptance, and central in its significance. It makes the plaintiff’s
right of autonomy the centerpiece of the law on intentional torts
and to some extent other torts as well. Nevertheless, a cluster of
subsidiary rules and definitions both enlarge and constrain its
application:
(1) Objective, manifested, or apparent consent. The
plaintiff effectively consents if appearances created by her
words or acts lead the defendant reasonably to believe she
consented, even if the plaintiff did not subjectively intend to
consent.13 The plaintiff likewise effectively consents if the
she actually or subjectively consents to the defendant’s
conduct, even if that consent is not otherwise expressed or
manifested.14
(2) Consent to conduct, not harm. The plaintiff who has
consented or apparently consented to conduct cannot recover
damages for harm resulting from that conduct, even though
the plaintiff did not expect harm to result and did not
consent to harm.15
(3) Scope and termination of consent. Neither consent
nor apparent consent will not bar a claim for tortious
conduct that is outside the scope of that consent, or for any
tortious conduct that occurs after consent has been
revoked.16
(4) Incapacity and “substituted consent.” Neither the
plaintiff’s consent nor apparent consent is effective to bar
recovery if the plaintiff lacked capacity to give consent due to
her minority or mental disability and if the defendant
165
knew or should have known it.17 Where a person lacks

the capacity to consent, others may be empowered to consent
on her behalf.18
(5) Misrepresentation, duress, and mistake. Consent or
apparent consent will be ineffective when the plaintiff is
induced to profess consent as a result of the defendant’s
misrepresentation19 or duress,20 or as a result of a mistake
of which the defendant knew or should have known.21
However, the plaintiff’s mistake, including a mistake
induced by a misrepresentation, does not vitiate her consent
if the mistake is only about a “collateral” matter not going to
the essential nature of the transaction.22
(6) Consent obtained by abuse of power. When employers
or psychiatrists use their special power or authority to
obtain sexual favors from employees or patients, purported
consent by the employee or patient may be ineffective even if
these abuses of power fall short of duress. The same
principle may apply in some degree to others such as
lawyers, physicians, or members of the clergy.23
(7) Informed consent. Some defendants, because of their
relationship to the plaintiff, are under an affirmative
obligation to provide appropriate information to the plaintiff
to permit an informed consent, and are subject to liability if
they fail to do so and harm results.24 In many cases,
however, the existence of a serious emergency may obviate
the need to obtain consent.25
(8) Consent to crime. Neither consent nor apparent
consent will generally bar an intentional tort claim even
where the activity to which the plaintiff consented also
constitutes a criminal act. This rule is subject to some
qualifications, however, most notably where the statute
criminalizing the activity is intended to protect the plaintiff
from her own professed consent, such as statutory-rape
laws.26
Manifested or Objectively-Determinable Consent
Actual consent to an act is a subjective willingness for the act to
occur. Apparent consent is conduct, including words, that are
reasonably understood by another as a reflection of consent.27
Either actual or apparent consent is effective to relieve the actor of
responsibility for the acts addressed.28
166
Because the appearance of consent is effective if it leads the

defendant reasonably to believe consent is actual, a plaintiff’s
private and uncommunicated reservation does not subject the
defendant to liability. The defendant is entitled to rely in good faith
upon the reasonable appearance of consent created by the plaintiff.
In a well-known case, the plaintiff was in a line of immigrants on
board a ship and awaiting a vaccination needed to enter the
country. She held up her arm as others did and received the
vaccination. She suffered some harm from it and brought suit, but
the court held that even if she did not subjectively consent, her
conduct gave the appearance of consent and that the defendant
was entitled to rely upon the appearance even if the plaintiff never
subjectively meant to consent at all.29 It might be possible to
interpret the facts differently. Perhaps the plaintiff’s upraised arm
was a protest, not a consent.30 The question is whether the
defendant reasonably believed that the plaintiff’s words or conduct
reflected a genuine consent.
Consent Implied by Conduct
Effective consent can be manifested by the plaintiff’s nonverbal
conduct. It can be shown by actions, by a course of conduct, by
social conventions applicable to the setting, or by a relationship
between the parties. Perhaps most real-life consent is implied
rather than expressed. We join a game of tag; we consent to being
touched.31 We engage in a course of practical jokes with a friend;
we consent to the kind of touchings or confinements those jokes
lead us to expect.32 Body language communicates many feelings or
attitudes, including consents. If you go home after a long hard day
and slump in the chair, your partner or friend might take that as a
consent to have your neck rubbed. Indeed, your relationship with a
partner might itself demonstrate a general consent to friendly
touchings.
Many false imprisonment cases require judges and juries to
interpret conduct. A customer, suspected of shoplifting, is asked to
follow a guard and does so. She is taken to a room and interrogated
by several store employees. The store employees’ nonverbal
conduct and demeanor may count as an implicit threat to confine
the plaintiff if she attempts to leave. On the other hand, her
conduct in remaining there without protest may suggest consent.
When the plaintiff merely goes along without protest, courts
usually find that the plaintiff was not confined, since she remained
voluntarily.33
Whether the plaintiff has communicated an apparent consent
by conduct rather than by words turns on the interpretation of
facts, not on rules. Conduct that might amount to an implied
consent must be understood fairly and realistically. Courts are
167
charged with the obligation to reject spurious assertions that

the plaintiff consented when she obviously did not.
Probably no single act, segregated from its social or relational
context, can evince consent. Holding your arm up may signify
consent to a vaccination if you are standing in the vaccination line,
but it signifies no such thing if you are sitting in class and the
teacher is asking questions. The act takes its meaning from the
context. What is true of actions is also true of silence. If the
plaintiff watches the doctor approach with a syringe and says
nothing when the doctor says “I’m going to vaccinate you now,”
silence may suggest consent even if the plaintiff makes no move at
all. But a general rule about silence is not warranted, because
situations, relationships, social customs and expectations color the
interpretation of acts and silences.
Consent Implied by Custom
A special form of consent by silence arises in the case of social
custom, as distinct from overt conduct of the plaintiff. For example,
in a given area it may be customary to permit hunting or fishing on
unenclosed rural lands, so that unless the landowner posts a notice
to the contrary, no one is a trespasser who enters such land to
fish.34
Qualifications can be illustrated by the door-to-door solicitor
case. Suppose social custom permits door-to-door salespersons to
knock on your door and offer their wares. Such an entry upon your
land is a technical trespass unless you have consented. But if you
say nothing to show your dissent from this custom, your silence
might reasonably be taken as consent for the door-to-door
salesperson to knock on your door.35
The salesperson example reflects three important limits. First,
you could reasonably be expected to know of the custom to permit
unannounced callers to enter without liability for trespass. Second,
you have an opportunity, at low cost, to express your dissent from
the custom. You could post a sign forbidding salespeople to enter.
Third, a harmless entry that does not include entering your home
is in accord with the limits of the apparent consent. In the light of
these facts, the salesperson can reasonably believe he may enter
for the limited purpose of offering goods for sale.
Why Manifested Consent Is a Bar
Why should the plaintiff be barred from recovery on the basis of
manifested consent when she has not actually consented? In the
usual case, the main reason is that the defendant who acts on a
reasonable understanding of appearances is simply not a
wrongdoer. The consent does not relieve him of liability for a tort;
he is not a tortfeasor at all.36
To see this point, suppose the plaintiff and defendant are
married to each other and the plaintiff manifests a consent to a
loving embrace. Neither plaintiff nor defendant is aware that the
plaintiff has a particularly fragile vertebrae. When the defendant
embraces the plaintiff in an ordinary way, the bone is broken. In
this case the defendant
168
has intentionally touched the plaintiff, but not intentionally

harmed her. Intentional touching suffices to show a battery if the
touching is intended to be offensive. If the defendant had intended
an unconsented—to touching, an intent to offend could be inferred.
In that case, the defendant would be liable for all actual harm
resulting. But in the hug example, the defendant cannot be seen to
intend offense by the embrace; given the appearance of consent,
the embrace seems inoffensive and therefore not wrongful.
More generally, any other rule would oppose the freedom and
autonomy of both parties, either by imposing liability or making it
more difficult for them to obtain what they both want. Suppose you
would like to fish in Jay’s farm pond and Jay would like you to do
so because the pond is woefully overstocked. Jay manifests consent.
If you can rely on that manifestation, you and Jay are both be
better off; you’ll catch the fish you want and Jay will get the stock
reduced. A rule that says you cannot rely on the appearance of
consent would allow Jay to sue you after you have taken Jay at his
word and improved his pond. If that were the law you might well
refuse to rely on appearances. The objective-appearance rule
fosters both freedom and autonomy.37
The downside of the objective rule is that appearances may be
misleading. When the people involved differ in gender, ethnicity, or
culture, and especially when the conduct in question touches
intimate or sensitive matters such as sexual relations, the
defendant must not presume too quickly to interpret conduct,
custom, or even words as consent.38 In particular, defendants who
possess power or authority over others must be wary of the
possibility that appearance of consent is misleading. For example,
employers, psychiatrists, and priests must recognize that
employees, patients, and parishioners do not necessarily feel free to
reject sexual advances and that the appearance of consent is the
result of other forces.39
The usual case is one in which the plaintiff manifests consent to
the defendant’s act, whether or not the manifestation represents
the plaintiff’s subjective state of mind. In the reverse situation, the
plaintiff does not outwardly manifest consent but does in fact
subjectively or secretly consent to the defendant’s act. The
consensus seems to be that a subjective or “real” consent is a bar to
recovery even though the defendant was unaware of such
consent.40
It seems easy enough to see why a defendant is not a wrongdoer
when he reasonably believes he is acting in accord with the
plaintiff’s wishes; that is the case of manifested consent. The
plaintiff’s private and unexpressed consent, however, gives the
defendant no basis for claiming innocence; by hypothesis, he knows
nothing of the plaintiff’s consent. Suppose the defendant enters
upon the plaintiff’s land to fish in the plaintiff’s pond, but believes
he is unwelcome. In such a case, he is, prima facie, a technical
trespasser because he has the intent to enter and he does enter.
(He also has an antisocial state of mind, but that is not required to
show trespass.) If the plaintiff later brings suit for the trespass and
the defendant learns that the plaintiff had in fact written
169
but not mailed a note to say he was welcome, why should the
plaintiff’s private and unexpressed consent operate to bar the
claim?
If such a subjective, unmanifested consent is a bar to the
plaintiff’s claim it must be because she has suffered no injury when
the defendant acted in accordance with her will, even if, later on,
she changed her mind about what she wanted. It is not that the
defendant is no wrongdoer as it is in the case of manifested
consent, but that the plaintiff has suffered no harm when her
wishes are met.
While manifested consent indicates that the defendant is not a
tortfeasor in the first place, unmanifested consent seems like a
true affirmative defense, at least in the pond illustration. Why is
that so? It is so because the plaintiff can prove a prima facie case
by showing entry and intent to enter. The defendant must then
sustain the burden of showing consent.
Consent does not bar the plaintiff’s claim for any tortious
conduct that is outside the scope of her consent or apparent
consent. The plaintiff may limit her consent as she likes,
consenting to one act but not to another, or to acts at one time but
not at another, or to acts under some conditions but not under
others.41 The scope of the defendant’s protection is the scope of the
consent. If his conduct would be tortious except for consent and his
conduct goes beyond the consent or its conditions, he is subject to
liability.42 Conversely, if the defendant’s touching of the plaintiff is
within the scope of the plaintiff’s consent, the touching is not an
actionable battery.43
Determining the scope. The scope of consent is often clear. A
patient who consents to removal of excess skin is not consenting to
a breast augmentation,44 and a patient who forbids all sedatives in
a medical procedure except Demerol is not consenting to some
other sedative.45 But the scope of the consent may itself be subject
to dispute, because the scope of consent, like its existence, depends
heavily upon implications and the interpretation of circumstances.
Consent to shoot rabbits in the landowner’s woods is almost
certainly not consent to shoot them in the landowner’s front yard,46
yet circumstances, including customs of the parties, might produce
a different conclusion. Possibly also a consent to operate on the
right ear is not consent to operate upon the left one,47 but it is not
impossible to believe that a patient about to undergo an operation
170
consents by implication to extensions of the operation that

become medically desirable48 and certainly to extensions needed
because of medical emergency.49
Consent to act as consent to consequences. Consent to the
defendant’s acts is not consent to injury resulting from those acts.
Nevertheless, the defendant is not liable for an intentional tort so
long as his acts are those consented to, even if harmful
consequences result.50 In Hellriegel v. Tholl,51 the plaintiff and
other boys were engaged in horseplay. Several boys picked up the
plaintiff and threw him into the water. These acts seem to have
been tacitly consented to because they were part of the activities
engaged in by all the boys. The plaintiff suffered a terrible and
unexpected injury. Although he never consented to injury, he did
consent to the acts that caused it and that was enough to bar his
claim. Put differently, a consent is not normally interpreted to
contain an implicit condition, “I consent provided I am not hurt.”
There are express and implicit conditions to consents, however,
and they are traditionally effective if communicated or
understood.52
Power to revoke and effect of revocation. Consent does not bar a
plaintiff’s claim for an injury caused by any tortious conduct
occurring after consent has been effectively revoked and the
defendant has a reasonable opportunity to avoid that conduct. A
plaintiff who gives consent may terminate or revoke it at any time
by communicating the revocation to those who may act upon the
consent.53 Actions speak louder than words, so if a competent
patient who has consented to hospitalization later attempts to
leave, such an action probably should be taken as a revocation of
the consent.54 A communicated revocation withdraws the
defendant’s privilege; once the consent is withdrawn he becomes
liable for any act that would be tortious without consent. For
example, if a patient, about to be operated upon, revokes her
consent, the surgeon commits a battery if he proceeds with the
operation and becomes liable even if he carried out the operation
with skill.55 If a landowner revokes her consent to a visitor’s
presence, the visitor becomes a trespasser if he does not leave.56
Defendant’s reasonable opportunity. The defendant must,
however, be permitted a reasonable opportunity to discontinue his
conduct. For example, if the plaintiff has permitted the defendant
to store his car on the plaintiff’s land, the defendant must remove
the car when the consent is revoked, but at the same time he is
given a
171
reasonable opportunity to do so.57 Similarly, the physician

carrying out a medical procedure when consent to it is revoked
must be permitted to discontinue the procedure in a medically safe
way.58
Automatic termination. A consent may be terminated in
accordance with a condition established in the consent itself.
Suppose that A gives B permission to move B’s house trailer onto
A’s land and to keep it there for the rest of B’s life. By its own
conditions, the consent terminates when B dies. B’s personal
representative becomes a trespasser if he does not remove the
trailer within a reasonable time thereafter.59
Effects of Incapacity
Incapacity known to the defendant. Minors, intoxicated persons,
insane persons and others similarly situated may lack capacity to
give actual consent. A professed consent is not effective to bar the
plaintiff’s claim if the plaintiff lacked capacity to give consent and
the defendant knew or should have known of the plaintiff’s
incapacity.60 For instance, if the defendant knows he is dealing
with a child or an insane person, he must know that the child
cannot effectively consent and he is held liable for torts to the child
even if the child professed a consent.61 The rule ultimately turns
on appearances to the defendant rather than on the plaintiff’s
secret status as a legally incompetent person, and is thus merely
an example of the objective-manifestation requirement.
Incapacity not known to the defendant. Incapacity negates
actual consent, but when the plaintiff gives the appearance of
capacity and the appearance of consent, the defendant is not acting
tortiously at all when he acts in accord with appearances. It may
be, however, that some defendants, because of their relationship to
the plaintiff, are under a duty to take extra precautions to be sure
that the plaintiff’s consent is based upon adequate understanding
of the relevant facts.62
Determining Capacity
Adults generally. The competency of adults is a matter of fact to
be determined in each case. The plaintiff who wishes to escape the
normal consequences of consent must sustain the burden of
proving incapacity and that the defendant knew or should have
known of the incapacity.63
Courts determine mental incapacity in a number of diverse
contexts and by somewhat different tests. Capacity is relevant to
the validity of a contract or will, to civil commitment, to criminal
punishment and to the operation of the statute of limitations. In
the law of civil commitment, incapacity is often judged by
determining whether a person is a threat to herself or to others.64
In other situations, courts usually judge
172
capacity of adults by asking whether they can manage their

own daily affairs65 or can understand their rights and the nature
and effect of their acts.66
This means that mental limitations are not equivalent to
incapacity. A person is not necessarily incapable of giving consent
merely because he has extremely low intelligence.67 Even a person
who suffers from delusions or other mental disabilities may be
competent for some purposes and may thus have the capacity to
consent to things unaffected by the delusion.68 So one’s ability to
pay bills and obtain daily necessities may show sufficient capacity
for at least some decisions.
Minors. It is usually said that minors as a class lack legal
capacity. Consequently, minors cannot consent to, say, medical
procedures. Instead, parents or guardians must consent on their
behalf.69 Nevertheless, minors are obviously competent to make
many decisions, and their capacity to do so expands to cover
increasingly complex decisions as they mature. In spite of broad
language about incapacity, courts do in fact recognize that many
minors can consent to some touchings that would be actionable in
the absence of consent. Even a small child might effectively
consent to a benign handshake, older minors to games that entail
touchings,70 and teenagers or mature minors to at least some
medical procedures.71 In addition, and within limits, mature
teenage females have a constitutional right to decide for
themselves to have an abortion and hence the power to give or
withhold consent to that procedure.72
Statutes traditionally criminalized sexual relations with minors
under a stated age, in effect depriving those minors of the power to
consent. Courts carried these criminal statutes over into tort law,
holding that the seducer of an under-age minor would be liable in
tort, since the consent would be ineffective.73 It is said that these
statutes are
173
only sporadically enforced74 and certainly they have not been

the basis for major tort litigation for a long time.
The problem of consent by minors is partly factual, just as it is
with arguably incompetent adults. That is, courts want to know
whether, as a matter of fact, the individual minor has the
experience and intelligence to make the decision in question. The
minor’s capacity may differ according to the transaction involved. A
minor’s consent to a touching by another minor might be well
within her capacity when consent to touching by an older person
might not.75 Or a child might have capacity to consent to a friendly
hug but, even apart from statutes, no capacity to consent to sexual
fondling.
Courts are also concerned about preserving a decision-making
role for parents or guardians as well. To say that a minor is not
legally competent to give consent, then, may be to say either (a)
that the minor lacks sufficient maturity to make rational decisions
informed by experience or (b) that whatever the minor’s practical
wisdom, the parents rather than the minor should have the power
to decide the particular question. This point shows up when one
parent has custody of the child and the other does not. The non-
custodial parent cannot avoid liability for kidnapping on the
ground that the child consented, even though we may suspect that
the child herself may be wise enough to know what she wants.76 So
some consent-by-minors issues are less about protecting minors
than about asserting parental rights to govern the minor, or about
the right of one parent against another.
Parents of minors. When a minor lacks capacity to give consent,
parents usually have the power to give and withhold consent on
the minor’s behalf. The common example is that parents are
required to consent for a serious or substantial medical procedure
to be performed upon a minor,77 but the rule applies to other
invasions of the child’s person as well78 or even to confinement of
the child.79 There are limits, however, to the parent’s power to give
effective consent.80 Court approval may be required for seriously
invasive procedures like organ donations by an incompetent
person, or for decisions to withdraw life support. Similarly, the
state’s duty to protect the best interests of infants may sometimes
lead the state to say that parents cannot withhold consent for a
potentially
174
life-saving medical procedure and that healthcare providers are

thus free to impose that treatment upon an infant against the
parents’ wishes.81
Mentally incompetent persons. An agent or guardian may give
consent on behalf of an incapacitated adult when the act in
question is arguably for the benefit of the incompetent person. The
usual case is one in which an incompetent person may need
medical treatment or surgery. In the case of one who is temporarily
incapacitated because of anesthetic, courts have suggested that an
adult family member could consent to a desirable extension of a
medical procedure.82 In the case of one who is more or less
permanently incapacitated, a formal guardian might be appointed
to make medical decisions. In some cases the guardian has been
permitted to refuse consent to life-saving treatments83 or to
withdraw existing treatments necessary to sustain life,84 provided
the guardian follows the standards set by the court for making that
decision.
The “best interests” standard. In general, guardians or parents
are expected to act in the best interests of their wards or children.
Thus neither parents nor guardians could effectively consent to
harvesting organs from children or wards merely to sell the organs
to strangers. Neither, perhaps, could they consent to experiments
upon their children if experiments posed more than minimal
health risks and if there were no direct potential health benefits.85
The best-interests standard asks whether the invasive procedure
at issue would be in the best interests of the ward or child. If the
answer is no, the procedure may not be used.86 But when the
stakes are high, as when the guardian proposes to withdraw life
support from a comatose ward, or a parent proposes to harvest an
organ from a child to benefit a sibling, courts have sometimes
departed from the best-interest test or have interpreted it in
unusual ways.87
The “substituted judgment” standard. The substituted-judgment
standard, by contrast, asks what decision the ward or child herself
would make were she competent to make it. If the ward were the
same person except that she was competent and would consent to
the procedure, the procedure would be permissible under the
substituted-judgment test, but not if the ward would refuse
consent.88 If the ward had clearly stated preferences before she
became incompetent, this test might work well. In other cases, the
substituted-judgment standard whimsically invites judges to
imagine what the ward would be if she were not herself, an
approach that seems unusable at best.89
175
Limits of both standards. On the other hand, the best-interests

standard may not always be meaningful, either. Perhaps it is not
meaningful when the question is whether to terminate
extraordinary medical life support for a patient in an irreversible
coma.90 The best-interests test could also ignore the ward’s known
preferences, expressed at a time she was wholly competent.91 Both
tests have the potential for invading the patient’s autonomy
interests, but if the patient is indeed incompetent, those interests
have scant scope in any event and a truly neutral test that does not
assume one choice to be better than another is perhaps impossible
to find. These difficult cases, perhaps as much as any others,
reflect something of the limits of law’s ability to resolve real
problems in morally acceptable ways.
§ 8.8 Mistake or Misrepresentation Negating
Consent
The plaintiff’s purported consent is ineffective to bar her claim
if it is induced by misrepresentation92 or is given under a material
mistake of which the defendant is or should be aware.93 The
mistake is often induced by the defendant’s fraud or
misrepresentation. Many cases decided in many settings
summarize the point by saying that “fraud vitiates consent”94 or
that consent is ineffective if given as a result of fraud,95 meaning
that the plaintiff in such a case can recover.
Relation to the manifested-consent rule. These rules are often
instances of the more general principle that effectiveness of a
consent is determined by appearances presented to the
defendant.96 The defendant who misrepresents the nature of the
transaction, or who knows that the plaintiff is mistaken about it,
knows that the plaintiff is not consenting to the defendant’s acts.
For instance, suppose the defendant offers the plaintiff a cup of
coffee he knows to be contaminated with a poison or a deadly virus.
The plaintiff takes the cup with no reason to know it is
contaminated. The plaintiff’s acceptance of the coffee manifests
consent to take the cup and to drink coffee, but not consent to
drink poison. Whether this is viewed as a mistake by the plaintiff
or a
176
misrepresentation by the defendant, the important point is that

the defendant cannot believe the plaintiff is consenting to the
poison.
Types of Mistake That Will Negate Consent
Misrepresentations and mistakes as to collateral matters. The
plaintiff’s mistake, whether induced by misrepresentation or not,
must be material if it is to vitiate consent. More than that, the
mistake must be about the nature of the transaction to which the
plaintiff purportedly consents, not merely about some collateral
matter of such as the transaction’s value, cash cost, or method of
payment.97
Collateral mistakes. To see a collateral mistake, suppose that a
professor wishes to conduct experiments to determine whether
people can distinguish between different stimuli applied to their
shoulders and agrees to pay the plaintiff “the university rate.” The
plaintiff consents to be part of the experiment in the belief the rate
is $20 an hour when in fact it is only $10. The Restatement
suggests that this mistake is collateral only and not a ground for
ignoring the plaintiff’s consent.98 So the professor would not be
liable for battery although the plaintiff might be permitted to
rescind the contract.
Mistakes about the nature of the transaction. The plaintiff is
mistaken about the nature or character of the transaction when
she is mistaken about a major feature of the transaction. Battery
claims provide good examples. For instance, the plaintiff who
consents to manipulation of her body in the belief that it is for
medical purposes, when in fact it is only for the sexual gratification
of the defendant, is mistaken about the nature of the touching, not
merely about some collateral matter.99 The same is true if the
plaintiff consents to physical violence by her psychiatrist in the
belief that this treatment is therapeutic.100 A sexual seduction
induced by misrepresentation such as the defendant’s assertion of
an intent to marry is understandable in the same way, as a battery
in which fraud has vitiated the consent.101
Other plaintiffs who are mistaken about the nature of the
transaction include those who consent to sexual relations in the
mistaken belief that the defendant is free of infection or that he
cannot cause pregnancy. In such cases, if the defendant knows of
the plaintiff’s mistake or has induced it by a misrepresentation, he
becomes liable for a battery, at least if disease or pregnancy
actually results.102 On the other hand, and quite
177
apart from the plaintiff’s consent, the defendant lacks the intent
necessary for a battery if he neither knows nor should know that
he is infected.103
The point is not limited to battery cases. In a Minnesota
case,104 a homeowner consented to the entry of a woman who
identified herself as a student but who in fact was there to
videotape scenes for a television station. The homeowner’s consent
to her entrance did not bar the trespass claim. Commonly held
values suggest that the transaction consented to—entrance by a
student—would be viewed as radically different in nature from the
transaction that actually took place—invasion by a journalist with
a video camera. And in another case,105 the defendants presented
an invalid subpoena to an Internet Service Provider, who, believing
it to be valid, yielded up copies of the plaintiff’s private emails. The
ISP’s mistake was about the essential nature of the transaction
and hence its agreement to provide the emails in its possession was
not a consent that barred the plaintiffs’ recovery. However, some
important cases have held that a landowner effectively consents to
entry upon the land by investigative reporters, even when those
reporters fraudulently represent their identities and purposes,106
or have held that even if the reporters are liable for the trespass,
they are not liable for publication of information that results from
it.107
Physical and unlawful threats. Duress includes physical
coercion and threats of it, that is, force or coercive threats that are
intended to and do prevent the plaintiff’s free choice.108 The
defendant cannot arrest the plaintiff at gunpoint and then assert
that the plaintiff consented to the arrest because the plaintiff
voluntarily chose confinement in preference to a bullet. Threats of
physical force or confinement are commonly the basis for false
imprisonment claims. That is, confinement may be achieved not
only by locking the plaintiff in a room but by indicating that she
will be physically halted if she attempts to leave or that she will be
subjected to worse forms of imprisonment.109 Similarly, if the
defendant threatens to deprive the plaintiff of her children unless
she has her tubes tied to prevent further conception, this is duress
or coercion and it cannot be said that the plaintiff has consented to
the operation.110 On the other hand, threats to do acts that are not
themselves illegal or tortious seldom render consent ineffective.
Economic threats to produce purely economic gains. Economic
threats that induce consent to economic transactions generally do
not count as duress or improper coercion.
178
For example, transactions involving buying and selling are

based on implicit or express threats. The buyer who refuses to pay
more than $25,000 for an automobile is in effect threatening not to
buy at all unless the seller lowers the price. If the seller consents to
sell at that price even though the car is worth more, the seller
cannot later recover for conversion of the chattel on the ground
that his consent was produced by duress. Similarly, the employer
may threaten to discharge an unproductive employee unless her
job performance improves. These threats are economic on both
sides—they threaten to impose economic loss in order to obtain
economic gain.
Objectively non-coercive threats without abuse of power. The
difficult cases of duress or coercion lie in the middle ground
between threats of physical force or illegal action on the one hand
and simple threats of economic self-interest on the other. Many of
the everyday bargains by which we arrange our relationships are
grounded in implicit or explicit threats. In the Restatement’s
example,111 a friend says to you, “if you are not still here when I
get back, our friendship is over.” You remain in confinement
because you value the friendship. You cannot recover for false
imprisonment on the ground that your consent was obtained by
duress or coercion.
Coercive threats. Many threats or implicit threats are
legitimate, and others simply are not the basis for any legal
response. There is a general formula for determining which threats
count as sufficiently coercive to negate consent: duress is a threat
of unlawful conduct that is intended to and does prevent the
plaintiff, as a person of ordinary firmness, from exercising free will
or choice.112 The formula seems almost useless in practice and
most cases in fact involve contracts or avoidance of transactions
rather than claims for trespassory torts like battery or trespass to
land.
§ 8.10 Consent Obtained by Abuse of Power or
Position
Some threats are viewed either as inherently coercive or as an
abuse of power or position, or both. If the threats are coercive, the
“consent” is not genuine as a matter of fact and must be given no
legal effect. If the threats are an abuse of power, a profession of
consent, whether genuine or not, might be denied any legal effect
as a matter of policy. The possibility that consent should be
disregarded for either of these reasons is not limited to any
particular group of cases, because that possibility turns on the
facts of the individual case. But the issue may be raised whenever
the plaintiff has allegedly consented to sexual relations with an
employer, psychotherapist, doctor, lawyer, or religious leader,
because of the abuse or potential for abuse of such a special
relationship. Other relationships, such as those between student
and teacher113 or jailer and prisoner,114 could raise the same kind
of issue.
Job threats and sexual harassment. Demands for sexual favors
by employers or supervisors may be implicitly threatening because
of the power of employers to affect jobs and job benefits. Such
threats present the employee with choices she should not be
179
required to make. Although an employer may properly make

implicit or explicit economic threats to gain economic performance,
the employer must not suggest that the job or its benefits in any
way depend upon the employee’s agreement to sexual relations
with the employer. To do so counts as quid pro quo sexual
harassment under federal job discrimination statutes.115 Even a
simple invitation by an employer or supervisor to engage in
sexually related contact may imply a quid pro quo demand or
threat and constitute harassment.
Psychotherapists and counselors. Consent, especially consent to
physical touching and sexual activity, is often induced by respect,
affection, or dependence. Such a consent is of course perfectly
effective, and one who consents to sexual activity normally has no
claim based on that activity. However, in some cases the defendant
owes the plaintiff a duty to avoid a potentially harmful sexual
contact even if the plaintiff consents or professes consent. This is
most notably the case of psychiatrists and other therapists who
routinely confront troubled and vulnerable patients.
The patient’s consent in such cases may be the result of
diminished capacity or possibly the result of forces outside the
patient’s control, but even if such a consent is as real as any other,
it is usually assumed and always claimed that a patient’s sexual
behavior with the therapist is ultimately harmful to the patient’s
recovery and development. If that is in fact so, the therapist who
engages in sexual activity with the patient is actually breaching
the professional duty of care which includes a duty to avoid the
risk of further emotional harm, even if the patient knowingly
consents to it. For this reason, and because given the patient’s
vulnerability, the “consent” is highly suspect, courts116 and
legislatures117 hold or provide that the therapist is liable in spite of
the patient’s professed consent.118
The plaintiff in these cases often asserts the claim on a theory
of negligence, no doubt because the therapist’s liability insurance
will cover negligence but not intended torts.119 Some cases have
suggested that the therapist is liable for breach of fiduciary
duty.120 In none of these cases is the patient’s consent a bar to the
claim.
Physicians and attorneys. Medical doctors treating patients for
medical conditions ordinarily have little role in providing for the
patient’s mental health. A physician who engages in sexual activity
with a patient is thus not in the same position as a therapist.
Courts have said that a medical doctor, having no duty to protect
the patient from her own consent or even to avoid risk of emotional
harm that can result from sexual activities, can rely on the
patient’s consent in the absence of fraud or duress by the
180
physician or known incapacity on the part of the patient.121

Lawyers are presumably in a similar position. They may find
themselves disciplined for violation of ethical rules if they engage
in sexual relations with clients,122 but the clients, not relying upon
lawyers for emotional protection from themselves, are free to
consent to sexual activities.123
The rules about lawyers and medical doctors, however, do not
reflect privileges based upon status or profession. They reflect the
professional roles undertaken. If a lawyer or medical doctor were to
initiate sexual relations as a form of treatment,124 or to engage in
counseling or therapy, then liability would become appropriate.125
Similarly, if these doctors or lawyers were to demand sexual favors
as a condition of providing their best professional services,126 or to
exact a profession of consent by duress,127 it seems reasonably
clear that the professed consent would present no bar to the
plaintiff’s claim.
Clergy. When pastors or priests abuse minors, courts have
sometimes imposed liability,128 although even in the child abuse
cases courts have sometimes invoked immunities to protect the
religious organization from liability.129 When a pastor or priest
sexually exploits an adult, such as a member of the congregation or
parish who seeks religious counseling, courts have sometimes
insisted that the adult’s consent is a bar,130 and when the claim is
based upon negligence, they have concluded that there is no tort of
“clergy malpractice.”131 Such cases obviously reject the analogy to
the abusive therapist,132 even though in most instances the clergy’s
sexual abuse originates in counseling situations in which
confidence is reposed and authority is respected by the victim.
While the cases are not numerous, and may not represent broadly
held views,133
181
some limited authority supports holding clergy members, or

their religious organization or superiors, liable for battery or
breach of fiduciary duty.134
As already shown, the plaintiff’s consent to an invasion is
ineffective to bar a claim if the plaintiff is mistaken about the
nature of the invasion and the defendant knows it.135 In some
cases, however, the plaintiff is not so much mistaken about the
nature of the proposed invasion as ignorant about its potential
risks or consequences; in those cases such a mistake does not
vitiate the plaintiff’s consent.
Medical operations and procedures often involve this point. At
one time it was thought that when a surgeon operated upon a
plaintiff who did not know and had not been informed of the risks
of the operation, the plaintiff might have a claim for battery
because the consent would be ineffective. Such a claim would be a
good one no matter how well the operation was performed or what
benefits it conferred. It is clearly right to treat the operation as
unconsented to if the plaintiff was mistaken about the nature of
the operation and the defendant knew it. But the plaintiff’s
ignorance of the risks does not necessarily mean the plaintiff was
mistaken about the nature of the operation.
Why is it that the plaintiff who is ignorant of the risks of a
medical procedure may not be mistaken about its nature? First, the
patient is not mistaken at all if she knows that operations have
risks and knows also that she does not know what they are.
Mistake is a state of mind not in accord with the facts. A person
who knows she does not know a fact is not mistaken about that fact
at all.136 Second, the plaintiff might erroneously believe she knows
the risks when she does not; in that case, she is indeed mistaken,
but not necessarily about the nature of the operation. The risks of a
procedure and safer alternatives might not go to the nature of the
operation, only to collateral matters of value. These points indicate
some of the reasons why ignorance is not always the equivalent of
a mistake that will vitiate consent.
Even if the plaintiff is not mistaken, however, her consent to a
medical procedure might be ineffective to bar her suit for other
reasons. Courts can impose upon the surgeon or physician a duty
to use reasonable care to inform the plaintiff of the important or
material risks or at least of risks that other doctors would explain
to a patient. That is what courts have come to hold under the rules
of negligence law and under the specific rubric of informed
consent.137
The result is that in most courts, battery claims against the
surgeon would be entertained only if the surgeon has exceeded the
consent by performing an operation not consented to at all138 or by
operating with knowledge that the plaintiff was mistaken
182
(not merely ignorant) about the nature of the operation. If the

surgeon’s fault is that he failed to provide information that should
have been provided, the plaintiff’s consent holds good to bar the
battery claim. In that case, the surgeon’s liability, if any, must be
based on a showing that he was negligent, either in failing to
disclose material facts or in performing the operation itself.139
A health care provider may deliver appropriate emergency care
when neither the patient nor an appropriate agent is able to make
a decision about that care.140 This might occur, for example, if the
patient was unconscious and would die without immediate
treatment, and no family member or guardian was reachable.
The term “emergency” implies both that the plaintiff’s health is
in jeopardy so that immediate medical attention is required, and
that a person authorized to consent is not available to make the
requisite decision.141 In such cases the physician may take
medically indicated steps that do not risk more harm than they are
likely to avoid, provided that the physician has no reason to think
the plaintiff would refuse consent.142 The effect of these rules is
that a true emergency is ordinarily a substitute for the patient’s
consent where the patient is in fact unable to give or withhold
consent.
It is sometimes suggested that the emergency rules are
grounded in some kind of implied consent by the patient.143 But as
the patient is unconscious or mentally compromised when the issue
arises, it is more accurate to say that the rule is a rule of law
rather than a rule of consent. Although the rule is based upon what
judges believe people would generally want to happen, it is not
based on some implicit communication from the particular patient.
The emergency rule is not intended to permit providers to
overrule or avoid confronting the patient’s wishes. If the plaintiff is
conscious, the physician must inform her of the proposed treatment
and its risks.144 “A physician must respect the refusal of treatment
by a patient who is capable of providing consent, even in an
emergency.”145 If the patient, while competent, has reliably
expressed her opposition to a particular medical procedure, her
wishes are not to be overridden when she falls unconscious and
death is imminent.146
183

When the plaintiff is injured in the course of a criminal act to
which she has consented, courts can seldom find entirely
satisfactory rules. Suppose the plaintiff consents to fight in an
illegal boxing match with the defendant. The defendant strikes a
forceful blow that injures the plaintiff quite seriously. If the
plaintiff’s consent is a bar to his claim, the defendant is relieved of
liability for his illegal acts. Some courts so hold, not only in the
case of illegal fights but in the case of other consensual but illegal
activities as well.147 On the other hand, if the plaintiff’s consent is
not a bar, the plaintiff recovers in spite of her illegal conduct.
Furthermore, the defendant is also entitled to recover for blows he
receives. This might be viewed as “rewarding” the illegal conduct
or at least as failing to punish it, or perhaps as wasting judicial
resources to set off the two claims against one another. But some
courts have said a recovery by both is permitted, the consent being
no bar.148
Neither rule is apt. The obvious solution, and the one adopted
by the Second Restatement,149 is that deterrence and punishment
for the illegality is to be left to the criminal law; tort law may thus
proceed under its ordinary rules, which means that the plaintiff’s
consent is a bar just as it is in any other case, subject to two
qualifications.
The first qualification is that when the statute makes conduct
illegal in order to protect the plaintiff from her own professed
consent, her consent is no bar. Age-of-consent or statutory rape
statutes, for example, provide that intercourse with a minor under
a specified age is a crime regardless of the minor’s consent.150 The
second qualification is that consent to an illegal act does not
ordinarily make the plaintiff an outlaw. The plaintiff’s consent
should bar a claim for what she consented to, but no more. Consent
to an illegal abortion, for example, is not consent to negligent
infliction of harm or death.151 To bar the plaintiff in such a case is
not to enforce her consent but to permit infliction of harm she
never consented to.
________________________________
1 Materials in this chapter focus on consent as a bar to an
intentional tort claim. The negligence-based “informed consent” claim is
discussed most fully in the chapter on medical malpractice. See §§ 21.9 to
21.12.
2 See, e.g., Hernandez v. K-Mart Corp., 497 So.2d 1259 (Fla. Dist.
Ct. App. 1986) (defendant in false imprisonment case has the burden of
proving that the plaintiff consented to detention); Anderson v. Low Rent
Housing Com’n of Muscatine, 304 N.W.2d 239 (Iowa 1981) (discussing
consent as an affirmative defense in case alleging libel and invasion of
privacy); Restatement Second of Torts § 167, cmt. c (1965) (burden of proof
is on defendant to establish that a possessor of land consented to an
entry).
3 See, e.g., Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705 (Ky.
2009) (plaintiff in battery case must prove she did not consent to
touching); Landry v. Bellanger, 851 So.2d 943 (La. 2003) (same); Bennett
v. Ohio Dep’t of Rehab. & Correction, 60 Ohio St.3d 107, 573 N.E.2d 633
(1991) (plaintiff’s case of false imprisonment requires proof that
confinement was “against his consent”). Note that a plaintiff in a medical
malpractice case alleging breach of the duty to provide sufficient
information to obtain informed consent quite clearly bears the burden of
proving that the doctor failed to obtain informed consent. See, e.g., Gouse
v. Cassel, 532 Pa. 197, 615 A.2d 331 (1992); § 21.9.
4 See, e.g., Smith v. Calvary Christian Church, 462 Mich. 679, 614
N.W.2d 590 (2000) (“[N]o wrong is done to one who consents. Without a
wrong, plaintiff has no compensable claim.”).
5 Houston v. Kinder-Care Learning Centers, Inc., 208 Ga.App. 235,
430 S.E.2d 24 (1993).
6 E.g., Lolley v. Charter Woods Hosp. Inc., 572 So.2d 1223 (Ala.
1990).
7 See In re IDC Clambakes, Inc., 727 F.3d 58 (1st Cir. 2013).
8 See L & W Engineering Co., Inc. v. Hogan, 858 S.W.2d 847 (Mo.
App. 1993); Michel v. Melgren, 70 Wash.App. 373, 853 P.2d 940 (1993).
9 E.g., Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715,
508 N.W.2d 907 (1993).
10 Cf. Hellriegel v. Tholl, 69 Wash.2d 97, 417 P.2d 362 (1966)
(horseplay). The same principle is of course applicable when the plaintiff
consents to practical jokes or other sportive play. Fuerschbach v.
Southwest Airlines Co., 439 F.3d 1197 (10th Cir. 2006).
11 See Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197 (10th
Cir. 2006).
12 See Chapter 17.
13 See § 8.2.
14 See § 8.3.
15 See § 8.4.
16 See §§ 8.4 & 8.5.
17 See § 8.6.
18 See § 8.7.
19 See § 8.8.
20 See § 8.9.
21 See § 8.8.
22 Id.
23 See § 8.10.
24 See § 8.11. For fuller treatment of the negligence claim for a
medical professional’s breach of the duty to obtain a patient’s informed
consent, see §§ 21.9 to 21.12.
25 See § 8.12.
26 See § 8.13.
28 E.g., Smith v. VonCannon, 283 N.C. 656, 661, 197 S.E.2d 524, 529
(1973) (“An apparent consent is sufficient if brought about by acts of the
[plaintiff].”); Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613 (Tex. App.
1994) (apparent consent by someone with authority to give it);
Restatement Second of Torts §892(2) (1979).
29 O’Brien v. Cunard S.S. Co., 154 Mass. 272, 28 N.E. 266 (1891).
30 See Symposium, Five Approaches to Legal Reasoning in the
Classroom: Contrasting Perspectives on O’Brien v. Cunard S.S. Co. Ltd.,
57 Mo. L. Rev. 346 (1992).
31 See Avila v. Citrus Community College Dist., 38 Cal. 4th 148, 131
P.3d 383, 41 Cal. Rptr. 3d 299 (2006) (“One who enters into a sport, game
or contest may be taken to consent to physical contacts consistent with the
understood rules of the game…. [H]ere, the baseball player who steps to
the plate consents to the possibility the opposing pitcher may throw near
or at him”; holding that consent extends to intentional torts as long as
those torts are “inherent” in the game).
32 Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197 (10th Cir.
2006) (but whether the apparent consent to a workplace prank included
consent to arrest by real law officers was a jury question).
33 E.g., Reicheneder v. Skaggs Drug Center, 421 F.2d 307 (5th Cir.
1970); Hardy v. LaBelle’s Distrib. Co., 203 Mont. 263, 661 P.2d 35 (1983).
34 Marsh v. Colby, 39 Mich. 626 (1878).
35 Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176 (1938)
(concluding that such a custom existed and giving the further illustration
of a retail business, which implicitly invites people to enter); Smith v.
VonCannon, 283 N.C. 656, 663, 197 S.E.2d 524, 529 (1973) (“In the
absence of notice to the contrary, a stranger to the occupant of a house is
entitled to assume that he may walk to the front door thereof … without
being sued for trespass.”).
36 E.g., Janelsins v. Button, 102 Md.App. 30, 648 A.2d 1039 (1994);
Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907
(1993).
37 See, discussing some values of objective approaches in negligence
law, Gregory C. Keating, Reasonableness and Rationality in Negligence
Theory, 48 Stan. L. Rev. 311, 371 ff. (1996).
38 See Judee K. Burgoon, Laura K. Guerrero & Kory Floyd,
Nonverbal Communication (2009) (discussing gender, cultural and
subcultural differences in nonverbal communication).
39 See § 8.10.
41 See Restatement Second of Torts § 892A(3) (1979).
42 E.g., Conte v. Girard Orthopaedic Surgeons Medical Group, Inc.,
107 Cal.App.4th 1260, 132 Cal.Rptr.2d 855 (2003) (“A typical medical
battery case is where a plaintiff has consented to a particular treatment,
but the doctor performs a treatment that goes beyond the consent.”).
43 See, e.g., Christman v. Davis, 179 Vt. 99, 889 A.2d 746 (2005).
44 See Perry v. Shaw, 88 Cal. App.4th 658, 106 Cal. Rptr. 2d 70
(2001).
45 Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 70 P.3d
435 (2003).
46 But see Florida Publishing Co. v. Fletcher, 340 So.2d 914 (Fla.
1976) (ignoring the difference between consent-by-custom to enter land
and consent for a stranger to enter a dwelling place in the owner’s
absence).
47 Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905), overruled in
part, Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854 (1957). Cf.
Kaplan v. Mamelak, 162 Cal.App.4th 637, 75 Cal.Rptr.3d 861 (2008) (jury
question whether plaintiff consented to an operation on the wrong disk,
just a few inches from the “correct” disk; patient sued doctor for battery).
48 Kennedy v. Parrott, 243 N.C. 355, 90 S.E.2d 754 (1956). When the
patient signs a consent form leaving the physician free to perform any
procedure that becomes medically necessary, this may override the
patient’s earlier rejection of a particular procedure. See Hoofnel v. Segal,
199 S.W.3d 147 (Ky. 2006).
49 See § 8.12.
50 See Janelsins v. Button, 102 Md.App. 30, 38, 648 A.2d 1039, 1043
(1994) (“Where the plaintiff consented to the battery itself, the consent
extends to ordinary consequences stemming from it.”).
51 Hellriegel v. Tholl, 69 Wash.2d 97, 417 P.2d 362 (1966).
52 Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 70 P.3d
435 (2003) (consent to receive sedative, but only if it is morphine or
demerol, does not bar battery claim when nurse injected a different
sedative); Ashcraft v. King, 228 Cal.App.3d 604, 610, 278 Cal.Rptr. 900
(1991) (consent to a transfusion, but only with family-donated blood;
doctor would commit a battery if the condition was not honored).
53 Restatement Second of Torts § 892A(5) & cmt. i (1979).
54 Cf. Morgan v. Greenwaldt, 786 So.2d 1037 (Miss. 2001) (self-
committed psychiatric patient consented to ordinary treatment and could
not complain of false imprisonment because she had not revoked her
consent or attempted to leave the hospital).
55 Pugsley v. Privette, 220 Va. 892, 263 S.E.2d 69 (1980).
56 Hector v. Metro Centers, Inc., 498 N.W.2d 113 (N.D. 1993).
58 Mims v. Boland, 110 Ga.App. 477, 138 S.E.2d 902 (1964).
59 Steiger v. Burroughs, 878 P.2d 131 (Colo. App. 1994); Restatement
Second of Torts §177 (1965).
60 See Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996).
61 E.g., United States v. McCabe, 812 F.2d 1060 (8th Cir. 1987)
(small child could not consent to his own kidnapping); Commonwealth v.
Nickerson, 87 Mass. 518 (1862) (similar).
62 As to informed consent, see §§ 21.9 to 21.12.
63 Grannum v. Berard, 70 Wash.2d 304, 422 P.2d 812 (1967).
64 See Michael Perlin, Law and Mental Disability §1.02 (1994)
(reflecting this and other tests in the civil commitment setting).
65 In re Guardianship of Jackson, 61 Mass.App.Ct. 768, 814 N.E.2d
393 (2004); Matter of Estate of Frisch, 250 N.J. Super. 438, 594 A.2d 1367
(1991); McCarthy v. Volkswagen of America, Inc., 55 N.Y.2d 543, 435
N.E.2d 1072, 450 N.Y.S.2d 457 (1982).
66 Ayuluk v. Red Oaks Assisted Living, Inc., 201 P.3d 1183, 1196
(Alaska 2009); Landmark Medical Center v. Gauthier, 635 A.2d 1145 (R.I.
1994).
67 State v. Singleton, 1994 WL 772861 (Tenn. Crim. App. 1995) (IQ
of 74, consent to search that turned up body in the freezer was valid).
68 See Matter of Gordy, 658 A.2d 613, 617 (Del. Ch. 1994) (“We all
have mental incapacities of various types. Some of us are able to learn
foreign languages; for others it seems too difficult; for some calculus (or
quantum physics) is beyond us. In some sense mental incapacity is simply
the human condition.”); Matter of Estate of Zielinski, 208 A.D.2d 275, 623
N.Y.S.2d 653 (1995) (discussing testamentary capacity).
69 See § 8.7.
70 Cf. Hellriegel v. Tholl, 69 Wash.2d 97, 417 P.2d 362 (1966)
(teenager consenting to roughhouse play could not recover for injury).
When the plaintiff pursues such claims on a negligence rather than a
battery theory, the consent defense becomes an assumption of risk
defense; minors may assume the risk exactly as they may consent. Frazier
v. Norton, 334 N.W.2d 865 (S.D. 1983).
71 In re E.G., 133 Ill.2d 98, 549 N.E.2d 322 (1989) (minor, found to be
mature by clear and convincing evidence, was competent to refuse life-
saving treatment); Cardwell v. Bechtol, 724 S.W.2d 739, 67 A.L.R.4th 479
(Tenn. 1987) (17-year-old could consent to osteopath’s manipulative
treatment of her spine, no action for battery when the treatments
appeared to produce serious harm).
72 E.g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502,
110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Hodgson v. Minnesota, 497 U.S.
417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990).
73 E.g., Glover v. Callahan, 299 Mass. 55, 12 N.E.2d 194 (1937). Cf.
Bjerke v. Johnson, 742 N.W.2d 660 (Minn. 2007) (consent cannot form the
basis of an affirmative defense of primary assumption of risk in a civil case
alleging negligence in preventing sexual abuse by another).
74 Michelle Oberman, Turning Girls into Women: Re-Evaluating
Modern Statutory Rape Law, 85 J.Crim. L. & Criminology 15, 36 (1994).
75 “In some cases consent between minors may be a valid defense
where, for example, they are of the same peer group and of equal
maturity.” Matter of A.B., 556 A.2d 645, 649 (D.C. 1989). Age-of-consent
statutes now often reflect such thinking because they criminalize sexual
activity with mature minors as statutory rape only in the case of an older
person who has sexual relations with the minor. E.g., Vernon’s Ann. Mo.
Stat., § 566.034 (person over 21 years of age having intercourse with a
person less than 17 years of age).
76 See Commonwealth v. Nickerson, 87 Mass. 518 (1862).
77 Doerr v. Movius, 154 Mont. 346, 463 P.2d 477 (1970).
78 Parents may consent on the child’s behalf, for example, to
discipline in a private kindergarten. Houston v. Kinder-Care Learning
Centers, Inc., 208 Ga.App. 235, 239, 430 S.E.2d 24, 27 (1993).
79 R.J.D. v. Vaughan Clinic, P.C., 572 So.2d 1225 (Ala. 1990).
80 Absent statutory authorization, parents generally lack authority
to waive or release a child’s tort claim in advance, for example. See, e.g.,
Kirton v. Fields, 997 So.2d 359 (Fla. 2008) (holding such releases invalid in
the context of “commercial activities”); Smith v. YMCA of Benton
Harbor/St. Joseph, 216 Mich. App. 552, 550 N.W.2d 262 (1996) (parents
have no authority to comprise a child’s tort claim). Contra, Sharon v. City
of Newton, 437 Mass. 99, 769 N.E.2d 738 (2002) (parents may release
child’s tort claim in the non-profit setting). See § 17.3.
81 See Miller v. HCA, Inc., 118 S.W.3d 758 (Tex. 2003).
82 See Tabor v. Scobee, 254 S.W.2d 474 (Ky. 1951) (20-year old
woman under anesthesia, defendants should have obtained consent of
mother who was in the hospital before removing fallopian tubes).
83 Matter of Gordy, 658 A.2d 613 (Del.Ch. 1994).
84 DeGrella v. Elston, 858 S.W.2d 698 (Ky. 1993).
85 See Grimes v. Kennedy Krieger Institute, Inc., 366 Md. 29, 782
A.2d 807 (2001). See also Lainie Friedman Ross, In Defense of the Hopkins
Lead Abatement Studies, 30 J.L. Med. & Ethics 50 (2002) (criticizing
Grimes).
86 Curran v. Bosze, 141 Ill.2d 473, 566 N.E.2d 1319, 4 A.L.R.5th
1163 (1990) (holding that permission to take bone marrow from child
under 4 years old would be denied under the best interests standard, even
though the bone marrow might save the life of a half-sibling).
87 See Lisa K. Gregory, Annotation, Propriety of Surgically Invading
Incompetent or Minor for Benefit of Third Party, 4 A.L.R.5th 1000 (1993);
Strunk v. Strunk, 445 S.W.2d 145, 35 A.L.R.3d 683 (Ky. 1969).
88 In re Martin, 450 Mich. 204, 538 N.W.2d 399 (1995).
89 See William Krais, The Incompetent Developmentally Disabled
Person’s Right of Self-Determination: Right-to-Die, Sterilization and
Institutionalization, 15 Am. J. L. & Med. 333 (1989). Much worse things
have been said about it because it “allows the state to invade the bodily
integrity of the incompetent without having to justify the invasion.” Louise
Harmon, Falling Off the Vine: Legal Fictions and the Doctrine of
Substituted Judgment, 100 Yale. L. J. 1, 61 (1990).
90 The decision to remove life support represents a different context
from the decision to harvest an organ. On the problems of removing life
support, see John Hodson, Annotation, Judicial Power to Order
Discontinuance of Life Sustaining Treatment, 48 A.L.R.4th 67 (1966).
91 This appeared to be the case in Application of President and
Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964).
92 Alexander v. DeAngelo, 329 F.3d 912 (7th Cir. 2003) (as part of a
sting operation, police may have used fraud to obtain the plaintiff’s
consent to sex with the target, “and if so that was a battery”); Moran v.
Selig, 447 F.3d 748 (9th Cir. 2006) (where patient is affirmatively misled
and consents to a procedure that is “substantially different” from that
which was performed, the doctor may be liable for battery); Duncan v.
Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 70 P.3d 435 (2003) (health
care provider who obtained consent to medication by misrepresentation
would be subject to liability for battery); Restatement Second of Torts
§892B (1979).
93 Restatement Second of Torts §49 (1965) & §892B (1979).
94 Neal v. Neal, 125 Idaho 617, 873 P.2d 871 (1994); Slawek v. Stroh,
62 Wis.2d 295, 215 N.W.2d 9 (1974) (consent to injections on the
misrepresentation that they would not cause miscarriage).
95 Janelsins v. Button, 102 Md.App. 30, 648 A.2d 1039 (1994); Micari
v. Mann, 126 Misc.2d 422, 481 N.Y.S.2d 967 (1984) (acting teacher
represented that students’ sexual acts were needed as part of their drama
training); see also Taylor v. Johnston, 985 P.2d 460 (Alaska 1999) (if
patient had relied upon a physician’s representation that physician was
licensed when he was not, a medical procedure involving a touching would
have been a battery).
96 See § 8.2.
97 Restatement Second of Torts §§ 57 (1965) & 892, cmt. g (1979).
98 See id. § 892B, Ill. 9 & § 57, Ill. 1.
99 Bartell v. State, 106 Wis. 342, 82 N.W. 142 (1900) (nude massage
by “magnetic healer” ostensibly for medical purposes).
100 Rains v. Superior Court (The Center Foundation), 150 Cal.App.3d
933, 198 Cal.Rptr. 249 (1984).
101 See Piggott v. Miller, 557 S.W.2d 692 (Mo. App. 1977). Jane E.
Larson, “Women Understand So Little, They Call My Good Nature
‘Deceit:’ ” A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374
(1993), proposes a much expanded liability to be imposed not only when
consent is secured by misrepresentation but also when it is secured by
manipulation. The original common law tort for seduction was
maintainable only by the father of a minor female and was based upon loss
of her services resulting from the seduction.
102 Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 198 Cal. Rptr. 273,
40 A.L.R.4th 1083 (1984) (contracting herpes); Hogan v. Tavzel, 660 So.2d
350 (Fla. Dist. Ct. App. 1995) (genital warts not revealed); Crowell v.
Crowell, 180 N.C. 516, 105 S.E.2d 206 (1920) (it was an “assault [battery]
for the husband to communicate to his wife, while concealing from her the
fact that he was infected therewith, a foul and loathsome disease”);
Restatement Second of Torts § 892B, Ill. 5 (1979).
103 Endres v. Endres, 185 Vt. 63, 968 A.2d 336 (2008); McPherson v.
McPherson, 712 A.2d 1043 (Me. 1998).
104 Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 402 (Minn.
App. 1995).
105 Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004).
106 Desnick v. American Broad. Cos., Inc., 44 F.3d 1345 (7th Cir.
1994).
107 Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir.
1999); American Transmission, Inc. v. Channel 7 of Detroit, Inc., 239
Mich.App. 695, 609 N.W.2d 607 (2000).
108 Terms like free will, free choice, genuineness of consent and
similar expressions are conventional in discussions of duress, but they
may not be the best terms. What is perhaps objectionable is that the
plaintiff is forced to make any choice at all, or the choice between the
alternatives presented. See John Dalzell, Duress by Economic Pressure,
Part I, 20 N.C.L.Rev. 237, 238 (1942).
109 See Marcus v. Liebman, 59 Ill.App.3d 337, 375 N.E.2d 486 (1978)
(threat to involuntarily commit a voluntary psychiatric patient who
wanted to leave was a false imprisonment).
110 See Vaughn v. Ruoff, 253 F.3d 1124 (8th Cir. 2001) (child
protective agency removed the plaintiff’s two children from her home,
then, just before birth of a third child, told her she’d have a good chance of
getting the children back if she had her tubes tied; a jury could find her
consent coerced and her constitutional rights violated).
111 Restatement Second of Torts § 892B, cmt. j (1979).
112 Id. § 871, cmt. f.
113 Cf. Micari v. Mann, 126 Misc. 2d 422, 481 N.Y.S.2d 967 (1984)
(acting teacher induced students to engage in a variety of sexual acts as
part of their drama training, held actionable).
114 Grager v. Schudar, 770 N.W.2d 692 (N.D. 2009) (sexual act with
jailer, who asserted consent as a defense; court noted that “consent”
procured by jailer’s abuse of power would be ineffective); but cf. Graham v.
Sheriff v. Logan County, 741 F.3d 1118 (10th Cir. 2013) (in case alleging
Eighth Amendment violation, allowing consent defense by guards in
county jail who had sex with a female prisoner, because the prisoner never
denied she consented “to almost all of the sexual acts that occurred”).
115 42 U.S.C.A. § 2000e (“Title VII”).
116 See, e.g., Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986).
117 Cal. Civ. Code § 43.93 (b) (patient may recover if there is
therapeutic deception); Ill.Comp.Stat. 140/2 (patient may recover if the
patient was emotionally dependent or the therapist practiced deception);
Minn. Stat. § 148A.02 (similar); Tex. Civ. Prac. & Rem. Code Ann. § 81.002
(patient may recover regardless of emotional dependence or deception);
Wis. Stat. Ann. § 895.70 (similar).
118 A substantial number of states criminalize such conduct by
therapists. See Timothy E. Allen, Note, The Foreseeability of
Transference: Extending Employer Liability Under Washington Law for
Therapist Sexual Exploitation of Patients, 78 Wash. L. Rev. 525, 533 n.65
(2003) (listing statutes)..
119 See, e.g., Zipkin v. Freeman, 436 S.W.2d 753 (Mo. 1968).
120 Roy v. Hartogs, 81 Misc. 2d 350, 366 N.Y.S.2d 297 (1975) (“This
case involves a fiduciary relationship between psychiatrist and patient and
is analogous to the guardian-ward relationship…. ‘Consent obtained under
such circumstances is no consent, and should stand for naught.’ ”).
121 Atienza v. Taub, 194 Cal.App.3d 388, 239 Cal.Rptr. 454 (1987);
Odegard v. Finne, 500 N.W.2d 140 (Minn. 1993); Iwanski v. Gomes, 259
Neb. 632, 611 N.W.2d 607 (2000). Claims against therapists are often
treated as malpractice claims, while those against physicians are not
because the scope of their professional undertaking is different. See
McCracken v. Walls-Kaufman, 717 A.2d 346 (D.C. 1998).
122 See ABA Model Rules of Prof. Conduct 1.8(j); Cal. Rules of Prof.
Conduct 3–110; In re Rinella, 175 Ill.2d 504, 677 N.E.2d 909, 222 Ill.Dec.
375 (1997) (lawyer suspended for 3 years).
123 Suppressed v. Suppressed, 206 Ill. App.3d 918, 565 N.E.2d 101,
105 (1990).
124 See Atienza v. Taub, 194 Cal.App.3d 388, 239 Cal.Rptr. 454
(1987).
125 Dillon v. Callaway, 609 N.E.2d 424 (Ind. App. 1993).
126 McDaniel v. Gile, 230 Cal.App.3d 363, 281 Cal.Rptr. 242 (1991).
127 See Doe v. Roe, 756 F.Supp. 353 (N.D. Ill. 1991), aff’d, 958 F.2d
763 (7th Cir. 1992) (threats of bodily injury unless fee was paid).
128 See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196
F.3d 409 (2d Cir. 1999) (recognizing claim for diocese’s breach of fiduciary
duty to boy parishioner, but remanding for error in instruction on the
statute of limitations); Fontaine v. Roman Catholic Church of Archdiocese
of New Orleans, 625 So.2d 548 (La. App. 1993) (priest allegedly sexually
abused a 17-year-old and later published photographs in a magazine and
circulated video tapes; held, these allegations state a privacy invasion
claim); Mrozka v. Archdiocese of St. Paul & Minneapolis, 482 N.W.2d 806
(Minn. App. 1992).
129 See Schu1tz v. Roman Catholic Archdiocese of Newark, 95 N.J.
530, 472 A.2d 531 (1984) (forcible sexual acts against a member of priest’s
Boy Scout group, resulting in boy’s suicide; held, the Archdiocese is a
charity and thus immune from tort liability for its negligence in failing to
prevent such things).
130 Jacqueline R. v. Household of Faith Family Church, Inc., 97
Cal.App.4th 198, 118 Cal.Rptr.2d 264 (2002) (reasoning also that the
plaintiff’s consent to touching demonstrates that is was not “offensive” to
her, thus negating an element of battery); Schieffer v. Catholic
Archdiocese of Omaha, 244 Neb. 715, 718, 508 N.W.2d 907, 911 (1993).
When the adult is not in counseling with the minister, the “consenting
adults” rule is clearly applicable. See Bladen v. First Presbyterian Church
of Sallisaw, 857 P.2d 789 (Okla. 1993).
131 See 2 Dobbs, Hayden & Bublick, The Law of Torts §330 (2d ed.
2011 & Supp.).
132 See Hertel v. Sullivan, 261 Ill.App.3d 156, 160, 633 N.E.2d 36, 39
(1994).
133 See John Wagner, Jr., Annotation, Cause of Action for Clergy
Malpractice, 75 A.L.R.4th 750 (1990).
134 See Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993) (no
separate tort of clergy malpractice but church might be liable for negligent
hiring, negligent supervision, and breach of fiduciary duty when it neither
sought to prevent nor to ameliorate the effects of priestly sexual behavior
with vulnerable parishioners); Destefano v. Grabrian, 763 P.2d 275 (Colo.
1988) (clergyperson giving marriage counseling to husband and wife and
having sexual intercourse with one of them); F.G. v. MacDonell, 150 N.J.
550, 696 A.2d 697 (1997) (fiduciary duty); contra, e.g., Petrell v. Shaw, 453
Mass. 377, 901 N.E.2d 401 (2009) (church diocese and bishops owe no
fiduciary duty to members of parish to protect them from sexual
exploitation by rectors).
135 See § 8.8.
136 See 2 Dan B. Dobbs, Law of Remedies § 11.2 (2d ed. 1993).
137 See §§ 21.9 & 21.10.
138 E.g., Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978);
Washburn v. Klara, 263 Va. 586, 561 S.E.2d 682 (2002); Saxena v.
Goffney, 159 Cal.App.4th 316, 71 Cal.Rptr.3d 469 (2008).
139 See § 21.9.
140 E.g., Miller v. Rhode Island Hospital, 625 A.2d 778 (R.I. 1993),
relying heavily on Canterbury v. Spence, 464 F.2d 772 (D.C.Cir. 1972);
Restatement Second of Torts §892D (1979).
141 E.g., Pizzalotto v. Wilson, 437 So.2d 859 (La. App. 1983).
142 In re Estate of Allen, 365 Ill. App.3d 378, 848 N.E.2d 202, 302 Ill.
Dec. 202 (2006); Restatement Second of Torts §892D (1979). But see
Harvey v. Strickland, 350 S.C. 303, 566 S.E.2d 529 (2002) (in spite of
patient’s pre-surgery categorical refusal to accept a blood transfusion, a
jury could find that his alleged statement that he would consider a
transfusion could be taken by the surgeon as an implied consent that
permitted his mother to consent to the transfusion while he was
unconscious).
143 E.g., Traxler v. Varady, 12 Cal.App.4th 1321, 16 Cal.Rptr.2d 297
(1993); Leach v. Shapiro, 13 Ohio.App.3d 393, 469 N.E.2d 1047 (1984).
144 Cunningham v. Yankton Clinic, 262 N.W.2d 508 (S.D. 1978); see §
21.9.
145 Shine v. Vega, 429 Mass. 456, 709 N.E.2d 58 (1999).
146 Rodriguez v. Pino, 634 So.2d 681 (Fla. Dist. Ct. App. 1994); Estate
of Leach v. Shapiro, 13 Ohio. App.3d 393, 469 N.E.2d 1047 (1984).
147 Goldnamer v. O’Brien, 33 S.W. 831 (Ky. 1896) (consent to illegal
abortion is a bar to recover for inducing the abortion). The plaintiff is
sometimes barred on the basis of a wider rule that selectively refuses to
permit the plaintiff to recover if she has participated in an illegal act. See
§ 16.8.
148 See Brown v. Patterson, 214 Ala. 351, 108 So. 16 (1926);
Annotation, 47 A.L.R. 1093 (1927).
149 Restatement Second of Torts § 892C (1979).
150 Vernon’s Ann. Mo. Stat., § 566.034.
151 In Castronovo v. Murawsky, 3 Ill.App.2d 168, 120 N.E.2d 871
(1954), the victim consented to an illegal abortion, and died because it was
negligently performed. Nevertheless, the court denied recovery.
185
Part III
NEGLIGENT PHYSICAL HARMS TO

PERSONS OR PROPERTY
187
Subpart A
THE PRIMA FACIE CASE

Chapter 9
THE NEGLIGENCE ACTION: AN

INTRODUCTION
Analysis
A. CHARACTERISTICS
B. DEVELOPMENT
§ 9.3 Negligence: Courts Adopt a General Principle of Liability for
Fault
§ 9.4 Negligence: After Adoption of the Fault Principle
C. FUNDAMENTALS OF NEGLIGENCE LIABILITY
§ 9.5 Elements of the Prima Facie Case for Negligence
__________
A. CHARACTERISTICS
Negligence as one type of fault. A person who negligently causes
personal injury or property damage is subject to liability in tort.
Negligence liability is liability for one particular kind of fault—
typically, failure to use reasonable care under the circumstances. It
is contrasted with liability for intentional torts and with strict
liability.
Varied negligence claims. Negligence claims represent the great
majority of tort claims presented, brought, or tried today. In part,
this reflects the large number of injuries resulting from the use of
automobiles—which are often used negligently. Negligence claims
are not, of course, limited to automobile cases. A wide range of
human misery is produced by negligence. Negligence law, on the
whole, controls suits for injuries suffered by patients at the hands
of doctors,1 tenants by landlords,2 and customers by businesses.3
People are negligently shot, burned, drowned, or poisoned. Less
commonly,
188
people may suffer and die from a negligently transmitted

disease4 or from negligently inflicted genetic harm.5
Specific negligent conduct. Conduct can include large scale
activities like driving automobiles or operating railroads. These
activities certainly impose substantial risks of harm to others.
However, such general activities will almost never be negligent in
themselves because the value of travel by automobile and the
operation of railroads outweighs the risks.6 So negligent conduct is
almost always some specific act such as driving too fast or some
omission such as failing to keep a proper lookout. Specific negligent
conduct may be found in a wide variety of circumstances.
Negligence may consist in failure to apply appropriate tests or to
discover danger to others and to avoid it. Building, installing, or
maintaining a dangerous structure, safety device, or other
condition is often the basis for a negligence action.7 Providing a
dangerous person with instruments of harm, for instance, giving a
drunken person keys to a car to drive, can count as negligence.8 So
can failure to protect the plaintiff against attacks by others.9
Negligent communication. Communication may be negligent,
too. The defendant may give inaccurate information to one who is
imperiled by acting upon it,10 or may give completely accurate
information to a person who is likely to use it dangerously.11 A
special case of communicative negligence occurs when the
defendant creates a misleading appearance of safety.12 The concept
of negligence and the sets of rules that go with that concept
dominate the law of torts.
In terms of broad legal structure, the negligence case can be
characterized by a few points:
1. Open-ended claims. The structure of the negligence case
allows the plaintiff to claim that any given conduct was negligent.
The argument is that the defendant should not have indulged in
that conduct at all or should have carried it out more safely. This
differs from the traditional rules for the intentional trespassory
torts. The trespassory torts described particular conduct that
counted as a tort—a harmful or offensive touching, a confinement,
an entry upon land. Negligence law in contrast is open-ended.
189
The plaintiff can assert that any conduct counts as negligence.13

The plaintiff must, of course, convince the trier of fact of her
assertions, but no pre-existing rules require her to prove a
particular act.
2. Jury roles. There are many important rules governing
negligence cases. Nevertheless, because the negligence claim is
open-ended and requires evaluation case-by-case, rules do not
always have an enormous direct impact on the ultimate result. The
decision maker at trial, on the other hand, has a great impact on
the ultimate result of the case. Judge and jury share the role of
decision maker. Some of the rules in tort cases bear on allocation of
power between the judge, as a trained professional, and the jury,
as a representative of the community. Overall, juries are a highly
significant force in deciding negligence and are subject to fewer
restrictions than in some other kinds of tort cases.
3. Actual harm requirement. A third characteristic of
negligence cases can be seen in the rule that no claim for
negligence will be recognized unless the plaintiff suffers actual
harm.14 There is no such thing as a negligence suit for nominal
damages, much less one for presumed damages.15 Here again, the
trespassory torts were quite different. A trespass to land, for
example, always justified at least the recovery of nominal
damages.16 Similar rules applied to the other trespassory torts.
The negligence claim is different. No matter how offended or
distressed the plaintiff might be when the defendant drives at 100
mph in a school zone, the defendant is not liable for negligence if
he causes no harm. What counts as actual harm may be debated or
uncertain in the case of toxic exposures that affect the body’s
structure but have not yet caused pain or loss of function;17 but the
underlying rule that harm is required has not been doubted.
4. Preoccupation with bodily harm and property damage.
Courts impose especially restrictive rules on claims that negligence
has caused emotional distress alone and deny recovery in many of
these cases.18 Some of the same reluctance to recognize negligence
liability for stand-alone emotional harm carries over to other
intangible injuries. In the area of financial injuries in which no
physical harm is done to the plaintiff, sometimes called “pure
economic loss,” negligence rules usually limit the cases in which
the plaintiff can recover.19 The upshot is that the core of negligence
law is about physical injury to persons and to tangible property.
5. Damages when a negligence claim is established. When the
plaintiff succeeds in establishing a negligence claim against the
defendant, courts award damages for a wide range of injuries,
including damages for emotional harm and financial loss. At first
glance, this statement seems to contradict those in the
immediately preceding paragraph. But there is no contradiction.
The preceding paragraph indicated that there is seldom a tort
claim for stand-alone emotional or financial harm based on simple
negligence. But once a negligence claim is established by showing
that the defendant
190
negligently caused property damage or bodily injury, the victim

can recover all damages that are reasonably foreseeable, including
damages for such intangibles as pain, a sense of lost enjoyment of
life, and emotional distress. Financial loss resulting from injury or
property damage, such as lost wages or the costs of medical
attention, is likewise recoverable, as are all proven future losses.
B. DEVELOPMENT
Strict liability for trespassory torts? In the law of torts, the word
negligence is old but its current content is relatively new. Although
the concept of fault was important in the old action on the case,
negligence did not appear as a somewhat general system for
resolving personal injury and property damage claims until the
19th century, mostly after the American Civil War. The English
common law of tort as it stood in the 14th century was very largely
the law of trespassory torts.20 The traditional view is that strict
liability was imposed when the writ of Trespass could be used.21
That included cases of direct and immediate harm from the
unauthorized use of physical force. Under this view, the defendant
might be liable for an accidental shooting, even if the defendant
was not negligent.22
Action on the case for indirect harms. By the direct harm test in
Trespass cases, an ordinary vehicular collision might result in
strict liability. But if that was the logic of the old Trespass action,
it was never applied to such facts in America. Instead, negligence
law developed from the action on the Case.23 The action on the
Case was proper (a) when the defendant inflicted injury that was
not immediate and direct,24 (b) when injury arose out of consented-
to invasions that were carried out badly, as where a veterinarian
undertakes to cure the plaintiff’s horse and fails as a result of his
negligence or neglect;25 and (c) when the defendant’s fault lay in
his failure to act rather than in some affirmative misconduct.26 In
the action on the Case, the plaintiff was required to prove both the
191
defendant’s fault and actual harm. Those instances all invoke

the negligence action today.
Relationship of parties in actions on the Case. The action on the
Case originally involved parties who had a relationship with each
other by contract or status.27 That setting differed from the
Trespass setting, which often involved strangers whose duties did
not depend upon a relationship between the parties. In Case, for
example, the defendant would be an innkeeper,28 the plaintiff a
guest; or the defendant a surgeon, the plaintiff a patient.29
Significance of parties’ relationship. The contract or relationship
of the parties was doubly important in such cases. First, the
relationship of the parties is important because that relationship
may require the defendant to take affirmative steps to avoid harm
to the plaintiff; hence the word neglect (the root for negligence)
appears in these cases in the sense that the defendant should be
liable for a failure to act.
Second, the standard of care or duty owed by the defendant was
implicitly set by accepted community practices and expectations as
incorporated in the contract or relationship itself; the defendant
who holds himself out as an artificer of any kind implicitly says he
will follow the standards of such artificers. The defendant who
undertakes to move casks of brandy safely will be liable for spilling
the brandy because that is a failure to perform as promised.30
Equally, the parties’ explicit or implicit expectations may relieve
the defendant of liability; the guest may undertake to protect his
own property and thus relieve the innkeeper of liability when it is
stolen.31
Particularization of duties in action on the Case. Given that
duties in Case tended to find their source in community custom
and conduct of the parties, courts naturally did not impose any
universal principles of responsibility. They imposed liabilities they
thought proportioned to the parties’ own contract or expectation.
Doctors were to use the care of doctors, farriers the care of farriers
and so on. Bailees who without charge accepted temporary custody
of another’s property owed a duty to care for that property that was
considerably different from the duty owed by a bailee who was paid
to care for the property.32 In some categories, the duty could be
strict. Common carriers and innkeepers might be charged with loss
of the guest’s property even if the carrier or
192
innkeeper was not at fault.33 So defendants might argue that

they were not in any recognized category such as a common carrier
and hence that they owed no duty of care at all.34
Stranger cases. But things were changing by 1700. Defendants
who are not in a contractual relation with the plaintiff—strangers
they are called—were beginning to cause serious harms. The
stranger who caused a collision on the road was still liable in
trespass in 1700 and for a long time afterwards,35 but plaintiffs
were beginning to bring suit in Case against strangers who caused
indirect or mediate harms.36 Because the parties were strangers,
not in a contractual relationship, the defendant’s negligence was
understood in a general, or at least undefined sense. By the 1800s,
there was nothing unusual about suing a stranger in Case rather
than Trespass and the negligence standard necessarily ceased to
arise from the parties’ relationship. At some point, too, the plaintiff
was given an option: he could sue in Case even if injury was direct,
so long as he could actually prove negligence and actual harm.37
The net result is that by 1800, plaintiffs sued in Case for road
accident injuries. The older connection of Case (and negligence) to
particular occupations and particular duties is no longer required.
So negligence had already become a general idea even though its
standards had not been articulated.
Coming to America. A great deal of the common law of tort
migrated to America with colonization. Even as the American
Revolution was being launched, English judges were still debating
tort cases by debating the direct vs. indirect distinction.38 After
Independence, the Constitution allocated Admiralty jurisdiction,39
with its potential for covering maritime torts, to the federal
government. Otherwise, tort law was the province of the states,
which usually40 made formal provision for reception of the English
common
193
law as the basis of their own legal systems.41 The sparse

American authority on torts in the generation or so after adoption
of the Constitution seems to indicate that courts were routinely
thinking primarily in terms of fault or negligence.42 Nevertheless,
in the early 1800s, negligence seemed not to have become a
widespread or general system of adjudication.
§ 9.3 Negligence: Courts Adopt a General
Principle of Liability for Fault
Growing into modern tort law. The older tort law, based on a
distinction between Trespass with its direct invasion and Case
with its indirect invasion, differed from modern tort law in three
important ways. First, strict liability was or may have been
imposed in the Trespass/direct harm cases. Second, the liabilities
imposed in Case, although based on fault of some kind, were not
originally adjudicated under a general fault standard applicable to
everyone, but rather under standards set by the particular
profession or calling of the defendant. Third, the lineaments of
negligence itself had not been drawn clearly; what would count as
fault in any general system of fault was undetermined. All three of
these things began to be altered significantly in the 19th century,
mostly after 1850.
(1) Eliminating or limiting the role of strict liability. If strict
liability was imposed for direct injuries, such liability was limited
or eliminated in favor of a fault-based system. By around 1800
lawyers began arguing that a distinction existed between
intentional or willful torts on the one hand and merely negligent
torts on the other.43 The distinction was not immediately
developed, but in another generation we find courts beginning to
distinguish negligence from intent44 or at least to show a dislike of
the Trespass rule that imposed liability for non-faulty direct
harm.45
194
In 1850, in Brown v. Kendall,46 the Massachusetts Court

abolished the rule that a direct physical injury entailed strict
liability. The court held that a defendant who attempted to beat a
dog but unintentionally struck the plaintiff instead would not be
liable for battery in spite of the direct force applied. Instead, the
defendant would be liable for battery only if he intended to strike
the plaintiff or if he was at fault in striking him. This would seem
to mean that other direct applications of force, such as would occur
in railroad accidents or industrial injuries, would not automatically
subject the defendant to the threat of liability; instead, the plaintiff
would be required to prove fault.47
(2) Creating a principle of general application. In the 19th
century, it looks as if courts began to develop general or “universal”
principles. They began to feel, in particular, that in cases of
physical harms to persons or property, fault was the general basis
for liability and a limit of liability as well. Instead of judging cases
by imposing particular duties upon particular callings, courts could
simply treat negligence as the basis of liability in all or a large
universe of cases. Many observers thought that is what Brown v.
Kendall did. Intentional invasion, not direct invasion, became the
basis for liability in the trespassory tort. Negligence became the
basis of liability otherwise. Negligence was no longer focused upon
parties who stood in some special or contractual relationship;48
“neglect,” was no longer a matter of a particular duty of a vet to the
farmer or innkeeper to a guest, but a general duty of all to all.49
This generality made it possible for negligence law to cover
virtually any kind of case not exempted by statute or some special
rule.
There were, of course, qualifications, both because some strict
liability was retained or developed and because some faulty
defendants escaped liability. No duty and immunity rules might
protect landowners or governmental entities from liability for
negligence, for example. In any event, negligence thinking, though
far less than universal, became the dominant or default mode of
thinking about tort suits between strangers in the years after the
Civil War.
(3) Developing the negligence concept. Negligence as a general
principle that could apply to suits among non-contracting parties
or strangers—railroad crossing accidents for example—would
require courts to set up some kind of meaningful standard about
what would constitute fault or negligence. Brown v. Kendall50 set
the general standard for negligence law: the defendant should use
ordinary care, or more particularly, the care of a reasonable and
prudent person. The actual conduct that would count as ordinary
care would vary with circumstances, since a reasonable person
would exercise more care when danger is greater.51
195
Adopting negligence analysis as the basis of tort law. With the

decision in Brown v. Kendall, the profession began to perceive torts
as a separate subject of the law52 and came to perceive the
defendant’s fault as its core.53 This meant that liability ordinarily
required either the defendant’s intentional invasion of the
plaintiff’s rights or a negligent invasion. After the Civil War,
jurists began to puzzle out the contours of the negligence action as
railroad trains and other machines churned up injuries on a new
scale.54 The ordinary care formula in Brown v. Kendall and its
minor variations became the basis for an enormous body of modern
negligence law.
§ 9.4 Negligence: After Adoption of the Fault
Principle
Strangers and privies. Brown v. Kendall55 explicitly adopted a
general principle of fault as the basis of tort liability in 1850,56 but
the implications of a general principle of negligence were not
immediately apparent. For a period, courts sometimes continued to
think of particular duties owed by a defendant in a particular
relationship to the plaintiff. The carrier owed one duty; the
gratuitous bailee another, and so on. It remains true today that in
spite of the broad negligence principle, many decisions focus on the
particular duty or standard of care owed by a particular class of
defendant rather than by people generally.57
Fleshing out the negligence concept. Adoption of a fault system
did not complete the work of creating negligence law. The
reasonable and prudent person standard, though beautifully
general in its formulation and probably quite useful to many juries,
is painfully imprecise as a guide for appellate review of particular
cases.58 It provides a common set of ideals or terms to permit
professional discussion, but does not point that discussion in any
particular direction. It remained for succeeding generations to
develop a series of ideas that tended to make the negligence
concept more precise.
Justice Holmes. In his 1881 book, The Common Law, Holmes
emphasized that the negligence standard was objective, based on
abilities of the reasonable person rather than on the actual
abilities of the individual defendant.59 He went on to add
something just as important to the simple reasonable person
standard. He recognized that there would be no liability for
negligence unless the defendant’s conduct presented a “threat” of
harm, what we would today call a risk. Further than that, liability
would not be imposed unless a reasonable person in the
defendant’s position could have recognized
196
the risk that harm might follow from his conduct, often
expressed in abbreviated form by saying harm must be reasonably
foreseeable.60 Reasonable foreseeability of harm became one of the
important ways of evaluating the reasonableness of the defendant’s
conduct.61
Professor Terry. By 1915 lawyers were developing the idea that
negligence was not only “unreasonable” conduct, but conduct that
involves unreasonable risks. Henry Terry proposed to recognize
explicitly that unreasonableness of risk turned on a balance of
several factors. How risky was the conduct? What values were at
risk? What were the hoped-for gains to be derived from the
conduct?62 Terry’s ideas of balancing risks of conduct against its
utility were to become part of the mainstream thought about
negligence law.
The First Restatement. By the 1920s, lawyers and legal scholars
were preparing for the First Restatement of Torts. They worked
out the physical, mental and “moral” characteristics of the
reasonable person whose conduct set the standard of care along
lines that are now generally accepted as background.63 By that
time, too, liability insurance had become readily available in its
modern and useful form. Details remained to be worked out or
altered or given new emphasis—the effect of custom64 and the
effect of statutes65 and the analysis of risks in a negligence case,66
for example. But the main conceptions of contemporary negligence
law were in place.
Boundaries and exceptions. The new general concept of
negligence also required boundaries. Duties of care were limited so
as to exclude liability for many purely emotional harms67 and to
limit the care required by, say, landowners to trespassers.68 Causal
rules were worked up; the defendant would not be liable unless he
in fact caused actual harm to the plaintiff69 and even then would
not be liable unless the harm was significantly related to his
unreasonably risky conduct.70 The plaintiff’s own fault had to be
worked into the case somehow,71 and so did the plaintiff’s consent
to face the risks imposed by the defendant.72 Courts also had to
think out a way to deal with cases in which several different people
were at fault.73 These and other problems were approached mainly
in the 20th or the very late 19th century.
197
Leaving a place for strict liability. Although negligence law

came to dominate tort thinking, courts were unwilling to abolish
all strict liability after Brown v. Kendall. They retained strict
liability or semi-strict liability in a number of cases associated with
certain nuisances,74 certain trespassory acts,75 and certain
especially dangerous or abnormal activities.76 In the 20th century
they added strict liability for defective products to the list.77
Statutes in recent years have gone on to add liabilities for certain
environmental harms.78
Disenchantments and alternatives. Negligence law does not
necessarily work well in all cases. Many plans have been offered or
adopted to make special provisions for particular classes of cases,
or in some cases, to supplement negligence law. For example,
workers’ compensation, which has been adopted everywhere,
imposes strict liability upon employers for on-the-job injuries to
workers, but the compensation is limited. The Keeton-O’Connell
no-fault plan, some form of which has been adopted in many states,
requires auto owners to provide for their own minor injuries
through special insurance, reserving the negligence claim for cases
of more serious injury.79 In spite of these developments, however,
negligence law remains at the center of personal injury and
property damage claims in tort.
C. FUNDAMENTALS OF NEGLIGENCE LIABILITY
§ 9.5 Elements of the Prima Facie Case for
Negligence
Negligence and the Negligence Case
Negligence as risky conduct. In modern law, the term negligence
in its primary meaning merely describes conduct. In that sense it
has come to mean conduct that is unreasonably risky, such as
driving a car at a high rate of speed. A good deal of tort law is
devoted to deciding what counts as an unreasonable risk and to
deciding as well whether the judge or the jury is the decision
maker in particular cases.
Negligence as a type of case. The term negligence is also used in
a different way to refer to the claim or cause of action. That is, the
term negligence may refer to the bundle of rules and procedures
that govern the negligence case or lawsuit rather than to the
defendant’s conduct itself.
Elements of the case. The rules for the negligence case impose
upon the plaintiff the burden of establishing each of the following
elements by proof of facts and persuasion:
1. The defendant owed the plaintiff a duty to exercise
some degree of care for the plaintiff’s safety;
2. The defendant breached that duty by his
unreasonably risky conduct;
3. The defendant’s conduct in fact caused harm to the
plaintiff;
198
4. The defendant’s conduct was not only a cause in fact

of the plaintiff’s harm, but also a “proximate cause,”
meaning that the defendant’s conduct is perceived to have a
significant relationship to the harm suffered by the plaintiff;
in particular, that the harm caused was the general kind of
harm the defendant negligently risked; and
5. The existence and amount of damages, based on
actual harm of a legally recognized kind such as physical
injury to person or property.
The general formula. The prima facie case for negligence is
broad and general. It resolves no cases. Instead, it points to issues
and sets the terms in which lawyers will argue the case. The
plaintiff must establish each of the elements named by proof or
persuasion, but she need not show any others.80 Each of these
elements receives substantial discussion in this book.
Affirmative defenses. The plaintiff who proves her prima facie
case will not necessarily prevail because the defendant may
succeed in presenting affirmative defenses that will wholly or
partly defeat the plaintiff’s claim. Common defenses include (1) the
plaintiff’s fault, which in most states today will reduce the
plaintiff’s damages but not necessarily defeat her claim; (2) the
plaintiff’s assumption of the risk, although this defense is
increasingly being discarded at least with respect to implied
assumption of the risk, and (3) the statute of limitations. In
addition to such defenses, whole areas of liability are excluded on
the ground that the defendant is immune or owes no duty to the
plaintiff.
Duty or Standard of Care
Duty v. standard of care. There are cases in which the
defendant owes the plaintiff no duty to exercise care to prevent the
harm suffered.81 In the ordinary case, however, the defendant does
owe a duty of care.82 The only question about the duty in such
cases is whether the care owed is some especially high kind of care
or whether it is more modest. This phase of the duty issue is
usually discussed in terms of the “standard of care.” The duty or
standard imposed in most cases is the duty of reasonable care
under the circumstances. Equivalent shorthand terms are due care
and ordinary care. Judges, not juries, ordinarily determine
whether a duty exists and the standard it imposes.83
Misusing duty terminology. It is possible to use the term duty in
a radical way by speaking of duties that do not involve standards of
care at all. Instead of saying that the defendant is under a duty of
reasonable care, a judge could say the defendant is under a duty to
keep a lookout or to drive so that he could stop within the range of
his vision. This kind of usage really refers to something else, often
the breach question. In this book, the term duty is used in the first
sense, as stating a legal standard by which the defendant’s conduct
is to be judged.
Breach of Duty: Negligence
Negligence as risk. When the defendant owes a duty of
reasonable care, the defendant breaches that duty by conduct that
falls short of such care, that is, by conduct
199
that is unreasonably risky.84 Juries, not judges, decide whether

the defendant was negligent unless the question is too clear to
permit different evaluations by reasonable people.
Actual Harm
Actual harm requirement. Negligence law grew out of the old
common law action on the Case and carried over its requirement
that the plaintiff cannot recover without showing actual harm
resulting from the defendant’s conduct.85 Sometimes this is
referred to as a requirement that the plaintiff must prove actual
damages and sometimes as a part of a requirement that the
plaintiff must prove causation in fact.86
Factual Cause
Tests of factual cause. The traditional view is that the plaintiff’s
injury is caused by the defendant’s conduct if, but for the
defendant’s conduct, the plaintiff would have escaped the injury.
However, causation turns out to be a complex business, and this
but-for test is not always suitable. Sometimes courts tweak the test
or abandon it in favor of a softer evaluation of causation. Some
jurists believe courts have also abandoned the causation
requirement altogether in one line of cases.87 If that is correct,
then the element that must be proved by the plaintiff here is not
necessarily causation but causation or a legally recognized
substitute for causation. For the great majority of cases, however,
the plaintiff must prove that the defendant’s tortious conduct
caused actual harm, even if courts sometimes use milder tests of
causation.88
Scope of Liability—“Proximate Cause”
The requirement. In addition to proving causation in fact, the
plaintiff must prove that the defendant’s conduct was a “proximate
cause” of the plaintiff’s harm, meaning that the harm that occurred
was the general kind that was unreasonably risked by the
defendant, the kind of harm the defendant should have been more
careful to avoid.89 Making sense of this idea will require a
substantial analysis.90 But it is important to note at least that the
scope of liability analysis excludes liability for fortuitous,
unforeseeable harms.91 Moreover, although some courts speak of
“proximate cause” in reference to both factual causation and to
scope of risk or scope of liability issues, such usage can be
confusing.92 Accordingly, this book avoids the use of “proximate
cause” to include factual causation.
200

Negligence as risk. Negligence is conduct that creates or fails to
avoid unreasonable risks of foreseeable harm to others.93 That is
the specific meaning of the general statement that negligence is a
failure to exercise care that is reasonable under the
circumstances.94
Negligence as conduct, not state of mind. Because the emphasis
in negligence cases is on unreasonably risky conduct, a bad state of
mind is neither necessary nor sufficient to show negligence.95
Conduct is everything. One who drives at a dangerous speed is
negligent even if he is not aware of his speed and is using his best
efforts to drive carefully. Conversely, a person who drives without
the slightest care for the safety of others is not negligent unless he
drives in some way that is unreasonably risky.96 State of mind,
including knowledge and belief, may motivate or shape conduct,
and sometimes may be relevant to the issue of reasonableness, but
it is not in itself an actionable tort. The legal concept of negligence
as unduly risky conduct distinct from state of mind reflects the
law’s strong commitment to an objective standard of behavior.
Intentional conduct that creates risk: the relation of negligence
and intentional torts. A defendant is not guilty of an intentional
tort merely because he knows of a risk from his conduct. Intent to
commit a battery, for example, requires either a purpose or a
substantial certainty that a harmful or offensive contact will be
made. Intentionally taking a risk of contact is not the same as a
purpose or a certainty that such contact will result. So intentional
conduct and even intentional risk-taking is analyzed under
negligence rules unless the defendant has a purpose to invade the
plaintiff’s legally protected interests or a certainty that such an
invasion will occur. Moreover, the defendant who intentionally
takes a risk may or may not be negligent; negligence will depend
upon the seriousness of the risk and the reasons for taking it.
Examples of intentionally risky conduct. To see these points in
an example, suppose the batter in a softball game knows the batted
ball might conceivably break a window outside the park and across
the street, but also knows that it is unlikely. He is intentionally
taking a risk when he attempts to bat; but the risk is small, far
short of a substantial certainty. By definition, the batter, though
intentionally taking a risk, is not intentionally causing the softball
to enter another’s land. Consequently the batter is not liable for an
intentional tort if he hits the ball over the fence. Is the batter then
chargeable with negligence if not intent? That depends upon
whether the risk was an unreasonable one. If the damaged house is
very close even though outside the park,
201
maybe the batter is negligent, but if the risk of a broken window

from a batted ball is a very small risk, batting the ball may not be
negligent either.
________________________________
1 See Chapter 21.
2 See Chapter 20.
3 See Chapters 19 and 20.
4 John B. v. Superior Court, 38 Cal.4th 1177, 137 P.3d 153, 45
Cal.Rptr.3d 316 (2006); S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. 1986)
(negligent transmission of herpes to wife); DiMarco v. Lynch Homes-
Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990) (negligent medical
advice led to plaintiff’s contracting hepatitis).
5 See Castillo v. E.I. Du Pont de Nemours & Co., Inc., 854 So.2d
1264 (Fla. 2003) (product causing genetic harm).
6 Alternatively expressed, courts may not have the institutional
competence to weigh the risks of driving automobiles in general against
the harms careful driving produces. See Restatement Third of Torts
(Liability for Physical and Emotional Harm) § 7 cmt. f (2010).
7 Much of products liability law is in this category, see Chapter 33,
as is premises liability law, see Chapter 20.
8 § 26.10.
Harm) §§ 19, 39 to 44 (2010 and 2012); see generally Chapter 25.
10 For instance, by signaling the driver behind that the way ahead is
clear for passing. See Joseph B. Conder, Annotation, Motorist’s Liability
for Signaling Other Vehicle or Pedestrian to Proceed, or to Pass Signaling
Vehicle, 14 A.L.R.5th 193 (1993); § 26.2.
11 See Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003), on
potential liability for negligently providing an unknown person—who
turned out to be a killer—with the workplace address of his victim.
12 See Killebrew v. Sun Trust Banks, Inc., 221 Ga.App. 679, 472
S.E.2d 504 (1996) (bank stationed employee appearing to be a guard in
parking lot near ATM; the employee was no guard and was only there to
keep customers of nearby business from parking in the bank lot; hence
summary judgment for bank in claim by patron injured by attacker at
ATM was error).
13 This characteristic is limited by no-duty and immunity rules. See
Chapter 12.
14 E.g., Reardon v. Larkin, 3 A.3d 376 (Me. 2010) (parties stipulated
to liability, but no claim was proved where the evidence showed that the
plaintiff was not harmed in any way by the defendant’s conduct; there was
evidence that all of the plaintiff’s injuries either existed before the
accident, or were caused by things other than the accident).
15 Right v. Breen, 277 Conn. 364, 890 A.2d 1287 (2006).
16 E.g., Gross v. Capital Elec. Line Builders, Inc., 253 Kan. 798, 861
P.2d 1326 (1993).
17 See § 14.1.
18 See Chapter 29.
19 See Chapter 41.
20 See S.F.C. Milsom, Historical Foundations of the Common Law
305 (2d ed 1981).
21 Some scholars have challenged this view. See Gary Schwartz, Tort
Law and the Economy in Nineteenth-Century America: A
Reinterpretation, 9 Yale L.J. 1717 (1981); Gary Schwartz, The Character
of Early American Tort Law, 26 U.C.L.A. L. Rev. 641 (1989); Stephen
Young, Reconceptualizing Accountability in the Early Nineteenth Century:
How the Tort of Negligence Appeared, 21 Conn. L. Rev. 197 (1989).
22 Weaver v. Ward, Hob. 134, 80 Eng. Rep. 284 (K.B. 1616).
283 (2d ed 1981).
24 The classic and much quoted example of the distinction between
Trespass and Case: if you throw a log and strike the plaintiff, he has an
action in Trespass, but if you leave a log in the road and the plaintiff falls
over it in the dark, the plaintiff has an action on the Case. Reynolds v.
Clarke, 1 Str. 634, 93 Eng.Rep. 747 (K.B. 1726). The direct-indirect test for
distinguishing Trespass and Case is consistent with earlier decisions, but
the explicit formulation of the test is not found until around 1700. See M.J.
Prichard, Scott v. Shepherd (1773) and the Emergence of the Tort of
Negligence 5, 13 ff. (1976).
25 Waldon v. Marshall, Y.B. Mich., 43 Ed. 3, f. 33, pl. 38 (1370),
printed and translated in C.H.S. Fifoot, History and Sources of the
Common Law: Tort and Contract 81 (1949).
26 C.H.S. Fifoot, History and Sources of the Common Law: Tort and
Contract 66 (1949). See Steinson v. Heath, 3 Lev. 400, 83 Eng. Rep. 750
(K.B. 1694) (“case lies for non-feasance, against my shepherd for negligent
keeping my sheep, against my carter for negligent keeping my horses, and
for not repairing a bridge by which I am to pass, … against a chaplain, for
not reading prayers, against an innkeeper, who refuses to lodge me …”).
One writer went so far as to say that the “primary meaning” of negligence
in the early American cases was “nonfeasance,” that is, neglect of some
positive duty imposed by law. Morton Horwitz, The Transformation of
American Law, 1780–1860 86 (1977). A late example of this association of
Case and nonfeasance or nonaction was Ogle v. Barnes, 101 Eng.Rep. 1338
(K.B. 1799).
393 (2d ed 1981); Percy Winfield, The History of Negligence in the Law of
Torts, 42 L. Q. Rev. 184 (1926).
28 The Innkeeper’s Case, Y.B. Easter, 42 Ed. 3, f. 11, pl. 13 (1369),
printed and translated in C.H.S. Fifoot, History and Sources of the
Common Law: Tort and Contract (1949); Burgess v. Clements, 4 M. & S.
306, 105 Eng.Rep. 848 (K.B. 1815).
29 Dr. Groenvelt’s Case, 1 Ld. Raym. 213, 91 Eng. Rep. 1038 (1697)
(dictum that case would lie against a surgeon for “mala praxis,” “his ill
practice upon the body of J.S.”).
30 Coggs v. Bernard, 2 Ld. Raym. 909, 92 Eng. Rep. 107 (1703) (a
case actually pleaded as an action on the case with the language of
“assumpsit” or undertaking, which was also the language of a contract
claim).
31 In Burgess v. Clements, 4 M. & S. 306, 105 Eng. Rep. 848 (K.B.
1815), the innkeeper set up the guest in a special show room, giving him a
key. The guest left his sample case in the room without locking the door.
Lord Ellenborough wanted to bar the guest in part because the property
was lost through the guest’s own fault. But LeBlanc, J., had a different
reason for barring the plaintiff. He thought the parties prescribed their
own terms by their conduct, and that in accepting the key, the plaintiff
discharged the innkeeper of responsibility.
32 See Thomas M. Cooley, The Law of Torts 628–33 (1879). Cooley
repeated the supposed rule requiring extreme care, ordinary care, or slight
care, depending upon whether the bailment was for the benefit of the
bailee, mutual benefit, or the benefit of the bailor only, but he also
attempts to fit this to the general formula of ordinary care by treating the
benefit issue as part of the circumstances, and he recognizes, too, that the
understanding of the parties is what ultimately governs.
33 See Calye’s Case, 8 Co. Rep. 32a, 77 Eng.Rep. 520 (K.B. 1584) (if
the guest’s goods are stolen, the innkeeper is liable); see Chapter 19.
34 Lovett v. Hobbs, 2 Show. 127, 89 Eng.Rep. 836 (K.B. 1680). The
actual words were “the action lay not,” against a coachman who damaged
or lost goods because the coachman was not a common carrier. The
argument was rejected because the coachman was like a waterman who
carries men and goods as a common carrier.
35 Leame v. Bray, 2 East. 593, 102 Eng.Rep. 724 (K.B. 1803).
36 A master improvidently sends his servant to train ungovernable
horses in a crowded place; they cause injury to the plaintiff, who
successfully brings an action on the Case. (Harm was considered indirect
when the defendant acted through an agent or servant.) Michael v.
Alestree, 2 Lev. 172, 83 Eng.Rep. 504 (1676). Or the defendant leaves a
pile of lime in the street; the wind blows the lime, which startles the horse,
which breaks the chaise in its frightened dash. Lord Mansfield tells the
jury to decide whether the defendant was guilty of “blameable negligence.”
Flower v. Adam, 2 Taunt. 314, 127 Eng.Rep. 1098 (C.P. 1810). See M.J.
Prichard, Scott v. Shepherd (1773) and the Emergence of the Tort of
Negligence 15 ff. (1976) (noting a few “straws in the wind” from earlier
times but identifying the late 17th century as the beginning of “non-
relationship” negligence cases).
37 Williams v. Holland, 10 Bing. 112, 131 Eng. Rep. 848 (C.P. 1833).
This view was also followed in America. Dalton v. Favour, 3 N.H. 465
(1826). See E.F. Roberts, Negligence: Blackstone to Shaw To ?: An
Intellectual Escapade in a Tory Vein, 50 Cornell L. Rev. 191, 201 (1965).
38 Scott v. Shepard, 2 Wm. Bl. 892, 96 Eng.Rep. 525 (1773)
(Blackstone, J. dissenting at the court’s allowance of Trespass against a
defendant who tossed a lighted squib at A, who batted it away towards B,
who batted it towards the plaintiff, who lost sight of an eye as a result). If,
however, the plaintiff showed both fault and actual harm, at least when
harm was not intended, courts sustained the action on the case. Slater v.
Baker, 2 Wils. 359, 95 Eng.Rep. 860 (K.B. 1767) (surgeon’s treatment of
broken leg, plaintiff not required to sue vi et armis).
39 1 Thomas Schoenbaum, Admiralty and Maritime Law §§ 1–6 & 3–
1 (4th ed. 2003 to 2009).
40 Later, Florida, Louisiana, California and some southwestern
states were brought into the union with varying degrees of Spanish, or
Spanish-French civil rather than common law background. See Lawrence
Friedman, A History of American Law 169, 171–76, 364–65 (2d ed. 1985).
41 E.g., Colo. Rev. Stat. Ann. §§ 2–4–211; 5 ILCS 50/1. See Lawrence
Friedman, A History of American Law 107 ff. (2d ed. 1985). Less obviously
but more importantly, what the states really adopted, at least over time,
was the common law process, not merely rules of particular cases. The
common law process contemplates continued development. See, e.g.,
Wright v. Grove Sun Newspaper Co., Inc., 873 P.2d 983 (Okla. 1994).
42 See Gary Schwartz, Tort Law and the Economy in Nineteenth-
Century America: A Reinterpretation, 9 Yale L.J. 1717 (1981). Many of the
early cases seemed to involve indirect injury, so their discussion of
negligence is no surprise. E.g., Colt v. M’Mechen, 6 Johns. 160 (N.Y. Sup.
Ct. 1810) (considering whether common carrier’s loss of goods resulted
from negligence as opposed to Act of God); Foot and Reynolds v. Wiswall,
14 Johns. 304 (N.Y. 1817) (jury charge in terms of negligence with the
burden upon the defendant to exonerate himself by proving freedom from
fault); Vincent v. Stinehour, 7 Vt. 62 (1835) (judgment upheld for the
defendant on the ground that “no one can be made responsible, in an
action of trespass, for consequences, where he could not have prevented
those consequences by prudence and care”). In some other cases the
setting involved indirect injury but the facts might have been thought to
suggest strict liability in a later generation; yet liability was limited by the
fault principle. In Livingston v. Adams, 8 Cow. 175 (N.Y. 1828), an upper
riparian owner’s dam broke, leading to damages of the lower owner’s
property. The court considered the case in terms of negligence, not strict
liability.
43 Ogle v. Barnes, 8 T.R. 188, 101 Eng. Rep. 1338 (K.B. 1799); E.F.
Roberts, Negligence: Blackstone to Shaw to ? An Intellectual Escapade in
a Tory Vein, 50 Cornell L. Q. 191, 199 (1965).
44 E.F. Roberts, Negligence: Blackstone to Shaw to ? An Intellectual
Escapade in a Tory Vein, 50 Cornell L. Rev. 191, 200 (1965).
45 Ever since Weaver v. Ward, Hob. 134, 80 Eng. Rep. 284 (K.B.
1616), which imposed strict liability but left a safety valve, courts had
recognized that the defendant was not liable, even for direct harm
resulting from some kinds of “inevitable accidents” in which the defendant
was “utterly without fault,” provided the defendant shouldered the burden
of proving that defense. “Utterly without fault” in Weaver v. Ward seems
to have meant that the defendant did not act at all or perhaps that the
immediate cause of harm was an intervening act. The idea that liability
was inappropriate if the defendant was “utterly without fault” was
gradually transmuted. By 1835, the Vermont Court was saying that the
defendant would not be liable if the injury was inevitable, which in turn
meant that the defendant was not negligent. Vincent v. Stinehour, 7 Vt. 62
(1835).
46 Brown v. Kendall, 60 Mass. 292 (1850).
47 See § 9.4.
48 Brown v. Kendall was not the first case to impose a negligence
standard among parties who had no contractual relationship. See, e.g.,
Livingston v. Adams, 8 Cow. 175 (N.Y. 1828).
49 See G. Edward White, Tort Law in America 16 (1980); Robert J.
Kaczorowski, The Common-Law Background of Nineteenth-Century Tort
Law, 51 Ohio St. L. J. 1127 (1990).
50 60 Mass. 292 (1850).
51 “[W]hat constitutes ordinary care will vary with the
circumstances…. In general, is means that kind and degree of care, which
prudent and cautious men would use, such as it required by the exigency
of the case….” Brown v. Kendall, 60 Mass. 292 (1850).
52 The first torts book was Francis Hilliard, The Law of Torts (1859).
See G. Edward White, Tort Law in America 16 (1980). Most of Hilliard’s
book was devoted to topics other than negligence—libel, malicious
prosecution, and nuisance, for example.
53 See O.W. Holmes, The Common Law 77 (1881).
54 Lawrence Friedman, A History of American Law 468 (2d ed. 1985)
(in the 19th century, railroad law and tort law “grew up together” and
were much the same).
55 60 Mass. 292 (1850).
56 See generally § Friedman, supra n. 54.
57 See especially Chapters 19 to 24. E.g., Iemma v. Adventure RV
Rentals, Inc., 632 N.E.2d 1178, 1182 (Ind. Ct. App. 1994) (“The bailee
must use slight care when the bailment is for the sole benefit of the bailor,
great care when the bailment is for the sole benefit of the bailee, and
ordinary care when the bailment is for the mutual benefit of the bailor and
bailee”).
58 O.W. Holmes, The Common Law 111 (1881) called the standard a
“featureless generality” and thought that with experience, statutes and
judicial decisions would make it more precise.
59 Id. at 108 (if “a man is born hasty and awkward, is always having
accidents and hurting himself or his neighbors, no doubt his congenital
defects will be allowed for in the courts of Heaven, but his slips are no less
troublesome to his neighbors than if they sprang from guilty neglect. His
neighbors accordingly require him … to come up to their standard and the
courts which they establish decline to take his personal equation into
account”).
60 Id. at 96. Contrast the earlier view stated in Thomas G. Shearman
& Amasa A. Redfield, Law of Negligence § 7 (1869), that “It is not an
essential element of culpable negligence that the defendant should have
anticipated, or have had reason to anticipate, that his carelessness would
injure another person. It is enough that he did not use the care and skill
usual in similar circumstances.”
61 See Patrick J. Kelley, Who Decides? Community Safety
Conventions at the Heart of Tort Liability, 38 Clev. St. L. Rev. 315, 345
(1990). Kelley concludes that before Holmes, “foreseeability” was only
relevant on proximate cause issues or was subordinated to the question
what a reasonable person would do.
62 Henry Terry, Negligence, 29 Harv. L. Rev. 40 (1915). Terry had
his own nomenclature and system of explanation, somewhat more complex
than the summary here.
63 See Warren A. Seavey, Negligence—Subjective or Objective?, 41
Harv. L. Rev. 1 (1927).
64 See §§ 12.6 to 12.9.
65 See§ Chapter 11.
66 See §§ 12.3 to 12.5.
67 See Chapter 29.
68 See Chapter 20.
69 See Chapter 14.
70 See Chapter 15.
71 See Chapter 16.
72 See Chapter 17.
73 See § Chapter 35.
74 See Chapter 30.
75 Intentional entry upon land in the reasonably mistaken belief that
it is one’s own land might be considered semi-strict liability. See § 5.2.
76 See Chapter 32.
77 See Chapter 33.
78 E.g., United States v. Northeastern Pharm. & Chem. Co., 810 F.2d
726 (8th Cir. 1986) (strict liability under CERCLA statutes); United States
v. West of England Shipowner’s Mut. Prot. & Indem. Ass’n, 872 F.2d 1192
(5th Cir. 1989) (strict liability under Federal Water Pollution Control Act).
See Allan J. Topol & Rebecca Snow, Superfund Law and Procedure §§ 1.2,
4.4 (1992).
79 Robert Keeton & Jeffrey O’Connell, Basic Protection for the
Traffic Victim (1965).
Emotional Harm) §§ 3, 6 (2010).
81 See Chapters 22, 25, 26.
82 See § Chapter 10.
83 See § 10.1.
Harm) § 3 (2010). See Chapters 12 to 16.
85 See Copeland v. Compton, 914 S.W.2d 378 (Mo. Ct. App. 1996).
This rule is important not only in excluding claims in which no legally
recognized harm has occurred, but also in determining whether a tort
occurred within the period covered by a liability insurance policy, see
American Guarantee & Liab. Ins. Co. v. 1906 Company, 273 F.3d 605 (5th
Cir. 2001), and in determining when the statute of limitations begins to
run.
86 See, e.g., Reardon v. Larkin, 3 A.3d 376 (Me. 2010) (parties
stipulated to liability, but no claim was proved where the evidence showed
that the plaintiff was not harmed in any way by the defendant’s conduct;
court said the plaintiff had failed to prove “the elements of causation and
damages”).
87 Where the plaintiff is allowed to recover for the loss of a chance of
a better outcome. Lost chance recoveries can be conceptualized in ways
consistent with the factual cause requirement. See §§ 14.11.
88 See Chapter 14.
89 Cf. Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 29 (2010).
90 See Chapter 15.
92 See § 15.3.
93 See Henry Terry, Negligence, 29 Harv. L. Rev. 40 (1915).
94 Reasonable person terminology is used in definitions and in jury
instructions as a simple and general way of conveying the idea, since
reasonable persons will not take unjustified risks. Judicial analysis of
negligence claims, however, usually moves to the more specific question of
unjustified risk. Professor Simons has shown that reasonable person and
unjustified risk are at least theoretically distinct conceptions, see Kenneth
W. Simons, Negligence, 16 Soc. Phil. & Pol’y 2, 52 (1999). However, courts
analyze the justification for risks in appellate decisions and give the
reasonable person instruction at trial with no apparent sense of conflict, so
the reasonable person test seems to be the simple or shorthand way of
talking about unjustified risks.
95 See Beck v. Dobrowski, 559 F.3d 680, 682 (7th Cir. 2009)
(“negligence is not a state of mind; it is a failure … to come up to the
specified standard of care”); Restatement Second of Torts § 282 (1979);
Restatement Third of Torts (Liability for Physical and Emotional Harm) §§
3 (“conduct”) & 12 cmt. B (bad judgment irrelevant) (2010).
96 See City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562
(1995) (defendant, who had been drinking alcohol, ran into and destroyed
a traffic light pole; drinking does not prove he committed an act of
negligence).
203
Chapter 10
DUTY AND THE ORDINARY STANDARD

OF REASONABLE CARE UNDER THE
CIRCUMSTANCES
Analysis
A. THE EXISTENCE OF DUTY
B. THE ORDINARY STANDARD OF REASONABLE CARE
§ 10.6 Circumstances as Part of the Standard: Special Danger
C. PARTICULAR CIRCUMSTANCES RELATED TO THE STANDARD
OF CARE
§ 10.8 Objective and Subjective Features of the Standard
§ 10.11 Bases for and Alternatives to the Mental Capacity Rules
§ 10.12 Knowledge, Perception, Memory, Experience, and Skills
D. THE STANDARD OF CARE FOR CHILDREN
E. STANDARDS OTHER THAN REASONABLE CARE
§ 10.18 Gross Negligence, Recklessness, and Wanton Misconduct
__________
A. THE EXISTENCE OF DUTY

Duty: an introduction. Although it was not required in early
English law, in order to establish a negligence cause of action
today, the plaintiff must show that the defendant owes her a duty
of care.1 “A duty, in negligence cases, may be defined as an
204
obligation, to which the law will give recognition and effect, to

conform to a particular standard of conduct toward another.”2 A
discussion of the subject of duty always begins with Dean Prosser’s
famous observation that duty “is not sacrosanct in itself, but is only
an expression of the sum total of those considerations of policy
which lead the law to say that the plaintiff is entitled to
protection.”3 A duty may arise “based upon the existence of a
contract, a statute, or the common law, or when the relationship of
the parties is such that the law imposes an obligation on the
defendant to act reasonably for the protection of the plaintiff.”4
Under the common law, the Restatement Third creates a general
duty when an actor’s conduct creates a risk of physical harm, and
in certain contexts of affirmative duty.5
Duty and the court. A defendant who is under no duty to use
care is, in effect, exempted from the ordinary rules of negligence
law, and avoids all accountability for harm inflicted.6 Whether the
defendant owes a duty is determined by judges, not juries.7 On the
other hand, juries determine all other elements of the negligence
case unless the answer is so clear that reasonable people cannot
differ.8
Duty as a preliminary question. Because duty is a question for
the judge, a defendant can raise the issue in a motion to dismiss.
The defendant need not wait for trial to argue that he was under
no duty of care. If the defendant’s no-duty argument prevails with
the judge, the defendant will escape liability without need of any
trial.
General rules: duty and risk of physical harm. In general, when
an actor’s conduct, creates, maintains, or continues a risk of
physical harm, he ordinarily has a duty of care. When such a duty
is owed, the standard of care to be applied is ordinarily reasonable
205
care under the circumstances.9 This is the approach of the

cases,10 as well as the understanding of major commentators11 and
the Restatement Third of Torts.12
No duty and affirmative duties. On the other hand, when the
actor does not create or continue a risk of harm, an actor generally
has no duty of care.13 However, quite a number of affirmative
duties stand as exceptions to the general rule.14
The importance of principle and policy. With respect to both
duties and affirmative duties, courts may either deny, limit, create,
or expand the duty based on articulated principle or policy
factors.15
Although these rules are straightforward, judicial application of
the rules and different uses of the duty terminology are less so. The
cases create some confusion and unpredictability.
Varied ways of discussing duty. In spite of the fundamental
importance of duty, lawyers and judges have used the term in a
variety of different ways, not always with the same meaning.16 The
orthodox and most useful way to use the term duty is to refer to a
general standard or obligation. In this sense, a duty is an
obligation created by law, usually the common law, to comply with
a general standard of care. A judge might say, for example, that
the defendant owes a duty to use reasonable care under the
circumstances.
Duty that shades into breach. Sometimes, however, judges use
the term duty as a conclusion about whether the defendant’s
particular act or omission should be actionable in the particular
case, irrespective of any general standard. In that narrow sense, a
judge might say that the defendant had no duty to stop and look
before proceeding into an intersection.17 Such specific duty
determinations in effect put the judge in the jury role,
206
whether the rule is for or against a duty of care.18 In many such

cases the words may be the words of duty, but the process of good
decision-making requires a jury determination about what counts
as ordinary care under the circumstances—the question of breach,
not duty.19
Duty to follow the standard of reasonable care. Similarly, judges
sometimes say that as danger increases, so does the duty.20 But
judges do not mean by this that a duty of reasonable care suddenly
becomes a duty of excessive or heightened care. Instead, they are
using duty in the sense of specific conduct and mean only that the
duty remains the same—reasonable care under the circumstances
—while circumstances of special danger show that reasonable care
may be deemed by the trier of fact to require more precautions.21
Duty as an obligation to act in accordance with a general
standard. The use of the term duty to refer to specific conduct
produces confusion and often interferes with the jury’s role. The
most coherent way of using duty states a rule or standard of law
rather than a conclusion about the defendant’s breach of duty on
the particular facts.22 No-duty rulings are expressions of “global”
positions of policy or justice rather than evaluations of specific
facts of the case.23 Because they are rules of law having the quality
of generality,24 they should not merely mask decisions that the
defendant was not guilty of negligence or breach of duty.
Distinguishing duty and breach. Thus duty is whether the
defendant is under an obligation to use care to avoid injury to
others. Breach, in contrast, is whether the defendant did in fact
use appropriate care. The duty issue is whether there is a standard
the defendant must meet in his conduct; the breach issue is
whether the defendant violated that standard.25 The issue of duty,
then, is not, as the Illinois Supreme Court
207
eloquently wrote, “whether defendants had a duty to install

protective poles, or a duty to prevent a car from entering the
restaurant, or some such other fact-specific formulation. [The
defendants] owed the decedent a duty of reasonable care. The issue
is whether, in light of the particular circumstances of this case,
defendants breached that duty.”26 Similarly, since drivers on the
highway owe a duty of reasonable care, it is error for a lower court
to rule that a driver has no duty to pull over on the shoulder when
confronted with an obstacle to avoid a stop in the lane of traffic; the
duty of care is not suspended and the question is whether a failure
to pull over is a breach of that duty.27
Harms that result when “no-breach” decisions are expressed as
“no-duty” rules. To express “no-breach” decisions as “no-duty” rules
causes two harms. First, it displaces the jury, which is the decision-
maker on issues of breach unless the conclusion is so clear that
reasonable people simply could not differ.28 Second, no-duty rules
should be invoked only when all cases they cover fall substantially
within the reason that frees the defendant of responsibility for his
fault.29 Elevating a decision about particular facts to a no-duty rule
will almost always violate this principle by excluding liability not
only in the particular case but also in others that are quite
different on their facts and may call for a different result.
Example: foliage cases. In a number of cases, landowners fail to
trim foliage at the edge of their land, resulting in a blind
intersection where cross-traffic is hidden by the landowner’s
vegetation. Many cases involving collisions in such circumstances
say that the landowner owes no duty to trim the foliage.30 This
means that regardless of how cheap and easy it is to trim the
foliage or how dangerous the intersection, the owner is free to be
negligent. These cases look like decisions on the breach issue that
have been generalized to decisions against duty, that is, decisions
in which the court is making determinations about costs and
benefits and foreseeability in the particular case, displacing the
jury’s role in the process.
Some courts have rejected the no-duty rule in the foliage cases.
One reason is that rules of law should not ordinarily define specific
acts that are exempted from ordinary care. Instead, judges must
follow the reasonable care standard, leaving it to juries to apply
the reasonable person standard to particular conduct like failure to
trim bushes.31 Facts or data will tell a factfinder how risky the
intersection might be and similarly the costs of clearing it; this is
not a matter to be decided as a rule of law covering all
intersections, at all times, and at all costs.32 Other judges have
made a similar point outside the foliage context.33
208
Duty issues. The main issues about duty go to its existence, and
its measure. Did the defendant owe any duty to the plaintiff? And
if the defendant owed a duty, what was that duty, expressed as a
standard of care?
Determining duty from policy, justice and relationships. How do
courts go about determining whether to impose a duty of care? As
courts have said, the existence of a duty is not a discoverable fact of
nature,34 but then no legal concept is. To say that the defendant is
under a legal duty is merely a conclusion that the defendant should
be subject to potential liability in the type of case in question. One
of Prosser’s most quoted passages had it that “duty is not
sacrosanct in itself, but is only an expression of the sum total of
those considerations of policy which lead the law to say that the
plaintiff is entitled to protection.”35 Or as one court put it, “the
question of whether a duty should be imposed in a particular case
is essentially one of fairness under contemporary standards—
whether reasonable persons would recognize a duty and agree that
it exists.”36 These are assertions that duty should be constructed
by courts from building blocks of policy and justice37 with due
regard for the relationship between the plaintiff and defendant.38
And in terms of the trial process, a decision that the defendant is
exempt from a duty of reasonable care can be appropriate only
where those same issues of policy and justice cannot be considered
by the trier of fact on the breach rather than the duty issue.
Prior formulations of factors to determine duty. By about 1960
courts were beginning to formulate some considerations of policy
relevant to establishing or rejecting a duty of care. The California
Supreme Court said it would consider (1) the extent to which the
transaction was intended to affect the plaintiff, (2) the
foreseeability of harm to him, (3) the degree of certainty that the
plaintiff suffered injury, (4) the closeness of the connection between
the defendant’s conduct and the injury suffered, (5) the moral
blame attached to the defendant’s conduct, (6) the policy of
preventing future harm by deterrence, and (7) administrative
factors, including the feasibility of administering a
209
rule that imposed a duty.39 To this list can be added (8) the
relationship of the parties40 and the customs to which they jointly
subscribe.41 New York has named other factors, including
expectations of the parties—presumably somewhat different from
mere foreseeability.42 Other courts have considered various other
factors.43
Widespread criticism of vague factors in duty determinations. As
these factors imply, the fact that harm is readily foreseeable to
reasonable people is not necessarily sufficient to establish a duty.44
But these factors are so numerous and so broadly stated that they
can lead to almost any conclusion.45 The factors reflect opinion and
value judgments. And since courts do not assign relative weights to
the policies or require any evidence to support the factual claims
that lie behind them,46 the vague general factors can simply cover
the bias or political preferences of the judge who relies on them.
—Denigrating judicial process. The factors may have had
negative effects on the judicial process, because they only furnish
an outline for structuring judicial opinions in
210
the direction judges feel appropriate without actual analysis of

policy or even the legal process implications.47
—Invading jury province. The factors used by the judges are
often the very same factors that determine the negligence question.
Yet when the question is phrased as a question of duty, the judge,
not the jury, may become the decision-maker, evaluating risks
created by the defendant, costs of avoiding them, and other such
quintessential jury issues as foreseeability. Some courts recognize
that they must not invade the jury’s province, yet without
explanation continue to determine the existence or non-existence of
a duty by using factors the jury would consider on the breach
issue.48 Alternatively, the judge may attempt to avoid conflict with
the jury’s role by declaring that when a factor is relevant both to
duty and to negligence or breach, something more is required to
establish the duty. For example, it has been said that the moral
blame factor on the duty issue requires more than negligence.49 If
that were true, there could never be a duty to exercise reasonable
care, because the defendant would always have to be more
blameworthy than that. Concomitantly, if the judge found moral
blame on the duty issue, that finding of “more than negligence”
would leave nothing for the jury to decide on the negligence issue.
This would make a shambles of the whole trial process.
The Restatement Third’s reaction against the multi-factor
approach. The Third Restatement tackles the free-wheeling use of
vague factors by three important provisions. First, the default rule,
to be applied in all but the most exceptional cases of physical harm,
is that everyone owes a duty of care not to create unreasonable
risks to others.50 This sidelines the vague policy factors by
sidelining the duty issue itself in most injury cases. Second,
foreseeability of harm is not a factor to be considered on the duty
issue; it is considered where it has traditionally been considered,
on the breach issue, normally by the jury.51 This minimizes the
risk that the court will simply declare its conclusion that harm was
not foreseeable without appropriate respect for the trial process.
Third, in exceptional cases, courts may consider several specific
policy matters in determining whether to impose a duty of care,
but these factors are quite different from the factors discussed
above.
The Restatement’s policy considerations. The Restatement
recommends that courts take policy into account when deciding
whether to immunize defendants from a duty of reasonable care.
But the Restatement’s policy considerations tend to channel
analysis in specific points capable of articulation.52 The
Restatement rule makes it appropriate to consider exempting the
defendant from the duty of reasonable care in five contexts. These
are: (1) where a duty of care would conflict with social norms, as
many courts seem to think would be the case if liability were
imposed upon social hosts for providing alcohol to drunken guests
who will leave driving vehicles;53 (2) where a duty of care conflicts
211
with another domain of law, as where economic torts should be

dealt with under contract rules, not under negligence rules;54 (3)
where a duty of care would conflict with the relationship between
plaintiff and defendant or perhaps with the defendant’s other
recognized rights;55 (4) where a duty of care would engage the
courts beyond their institutional competence, as where the plaintiff
asserts that it is negligent to make motor vehicles at all;56 and (5)
where a duty of care would fail to defer to another branch of
government.57
Support for the Restatement. Most commentators have
expressed concerns and even distress at courts’ multi-factored
approach. The Restatement, in contrast, has garnered major
support in its default duty approach coupled with its use of very
pointed factors for exceptional cases.58 Even those that take issue
with particular aspects of the Restatement do not propose a return
to the unstructured and vague factors for determining duty, but
instead argue for less attention to the factors,59 or for a principle
that considers only narrower factors such as the autonomy
interests of the parties and those that will be affected by a duty
decision.60
Support for an ordinary duty of reasonable care. A general duty
of reasonable care is by definition not burdensome. Nor does it
leave juries free to bring in irrational verdicts, because the judge
remains free to direct a verdict when, on the facts of a particular
case, reasonable people could not differ. In the great majority of
injury cases, the elaborate efforts to describe particular duties are
both unnecessary and undesirable.
Foreseeability as a jury issue. A defendant whose conduct causes
harm to another is not ordinarily responsible in tort unless a
reasonable person in his position would have recognized the risk of
harm. This means that liability is not imposed unless harm would
have been foreseeable to a reasonable person—and not only
foreseeable but recognizable as unreasonably probable. However,
this foreseeability rule is a rule about what counts as breach, not a
rule about duty to use reasonable care. Accordingly, foreseeability
is addressed by juries on the negligence issue.
The judge’s role. Judges have a supervisory role in this issue as
on others: they determine whether the evidence presented at trial
on the issue of foreseeability is sufficient for reasonable jurors to
make a finding of foreseeability. If the judge concludes that
reasonable people could not find foreseeability of harm, then the
judge directs a verdict or otherwise removes the case from the
jury’s consideration, ultimately
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dismissing the claim because the defendant’s negligence has not

been established. This process does not yield a rule of law about
duty or no duty; it merely determines that the evidence in the
particular case was insufficient on the matter of breach.
Judge and jury. The distinction between adjudication of a case
and announcing a general rule of law is important in marking the
appropriate power of judge and jury. Yet some courts have
imported considerations of foreseeability into the process of
deciding whether a defendant has a duty to exercise care. The
effect is to allow judges, who decide all issues of duty, to decide
foreseeability,61 bypassing the jury and short-circuiting full
analysis of the case. The Restatement explicitly disapproves the
use of foreseeability as a factor in determining the existence of a
duty of care.62 The Restatement’s convincing argument, based on
Professor Cardi’s analysis,63 was supported in some older cases64
and has been quickly gaining acceptance in others in the few years
since the Restatement Third was adopted.65
What are the objections to determining duty by deciding
foreseeability of harm? Among the most important are these:
(1) Meaningful no-duty decisions by a court are always
about broad categories of cases, not about particular facts of
the case before the court. Foreseeability on particular facts is
necessarily fact specific, and hence does not fit with the
broad assessments of policy necessary for category-wide
rulings.
(2) If foreseeability is injected into the duty decision, it
is apt to shift the focus away from policies that arguably
should or should not control the whole category without
reference to individual assessment of negligence.66
(3) Foreseeability will be a critical issue in the case, but
it will be considered under the negligence and “proximate
cause” or scope of risk issues, so at the very best, the
determination of foreseeability on the duty issue is
duplicative.
(4) If the judges decide foreseeability and conclude it
does not exist, they take over the role assigned by our
jurisprudence to the jury.
(5) To dodge these objections, courts might attempt to
claim that the foreseeability decided by judges is somehow
different from the foreseeability
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decided by juries, so that there is foreseeability67 for the

court and foreseeability for the jury.68 This injection of
wholly new conceptions, even if they can be made
meaningful, is likely to carry unnecessary complications and
deep confusions.
(6) Courts’ use of foreseeability to reject a duty of
ordinary care actually undermines the rule of law, because it
is used as a “cover” for discretion or bias; by seating
foreseeability in the breach issue decided by the jury, judges’
decisions will become more transparent.69
All this supports the Restatement view that judges should have
very good reasons to exempt a category of people from the ordinary
duty of reasonable care and should be able to state what those
reasons are without determining matters like foreseeability that
depend on the particular facts of one case.
B. THE ORDINARY STANDARD OF REASONABLE
CARE
Standard of care. In negligence law, when a duty is owed, the
standard of conduct to which the defendant must conform is
typically the standard of a reasonable person under the
circumstances to avoid physical harms to others.70 However, in
some cases the standard of conduct may be different. For example,
traditionally a common carrier was obliged to exercise the highest
degree of care, and a landowner owed a licensee an obligation less
than reasonable care. Judges are the ones who determine both
whether a duty of care is owed and what standard of care should be
applied.71
Generality of the reasonable care standard. In the latter half of
the 19th century, courts began to develop a general standard of
care describing the duty of all persons to exercise ordinary care,
meaning the care of a reasonable person, for the benefit of other
persons, not merely the particular duties of, say, a veterinarian to
a farmer. The standard for determining negligence purports to
apply unvaryingly to almost all negligence cases72 except where
courts consciously limit the duty or standard of care to protect
certain classes of defendants.73 It has been argued that the
reasonable person standard is a product of people’s fair
expectations about how disputes will be resolved in
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tortious situations and that allowing these expectations to

shape tort law tends to maximize social utility.74
More specific standards. It may be more accurate to say that the
general duty or standard of ordinary care is a default rule,75 a
standard applied when there is no other more specific standard
addressed to the particular parties or their particular situation and
when the defendant has not undertaken some different level of
care. The default standard of reasonable care yields to the law’s
lesser standard for children, for instance, and in medical
malpractice cases the standard yields to the standard implicitly
undertaken by the physician and based upon the custom of the
medical community.76 Nevertheless, for a great mass of cases, the
general standard of ordinary or reasonable care is the standard
courts apply.
Stating the general standard of care. The duty owed by all
people generally—the standard of care—is the duty to exercise the
care that would be exercised by a reasonable and prudent person77
under the same or similar circumstances to avoid or minimize risks
of harm to others.78 Because no one tries to avoid risks that cannot
be identified or harms that cannot be foreseen as a possibility, the
reasonable person exercises care only about the kinds of harm that
are foreseeable to reasonable people who have any extra knowledge
the defendant has.79 Even then, he uses care only to avoid
inflicting risks that are sufficiently great to require precaution.80
The reasonable person or due care standard applies also when the
issue is the plaintiff’s contributory negligence.81
A reasonable class member? Sometimes the “prudent person” is
given an identity as a member of a class. For example, courts have
come to say that the defendant must behave as a reasonable
prudent physician, engineer, ship captain, plumber, or dog owner
when he acts in one of those roles.82 Such formulations combine a
statement of the
215
standard with an application of it to the facts. Although the

standard for physicians and some other professionals has widely
been regarded as a standard that differs from the reasonable
person standard,83 it seems fairly certain that not all such
formulations are intended to represent a departure from the
reasonable person standard. To speak of the reasonable dog owner
is to speak of the reasonable person. One of the circumstances is
that the defendant owns a dog with all the risks that dog
ownership entails, so it is convenient to speak of the reasonable
dog owner, and no harm is done by such a locution as long as no
one thinks dog owners are relieved of the reasonable person
standard or that canine ownership is the only circumstance of
significance.
Terminology. The reasonable and prudent person standard of
care is often described as the standard of ordinary care, due care,
or reasonable care and the term unreasonable risk refers to a
breach of that standard.84 It may also be referred to as the
reasonable person or prudent person standard. The terms are
interchangeable, and they all refer to external conduct that would
be dictated by “care” or “prudence,” not to the prudent or careful
state of mind. These terms are largely the terms of jury
instructions and with only slight variations in expression, they are
accepted everywhere.85 The idea is that the jury would be able to
say (for example) that 60 mph was faster than a reasonable
prudent person would drive under the particular circumstances
and therefore that the defendant who drove that speed was
negligent.
Non-technical usages of “proving a standard.” The term
“standard” (or “duty”) sometimes creeps into judicial discussions in
a way that is informal at best and potentially confusing. Judges
sometimes speak of “proving” a standard of care, for example, but
since a standard is by definition set by the judge in the first place,
there is never a question of proving the standard itself. Sometimes
in locutions like this, judges mean that the plaintiff should prove
facts that invoke one standard rather than another as being proper
for the case. Or that the plaintiff must prove facts that show a
breach or violation of the standard. It cannot be too often repeated
that the standard itself is a general duty prescribed by law.86
Relation of reasonable person standard to risk. Courts project
the reasonable person as an ideal to help themselves and juries
estimate whether the defendant’s harm-causing conduct was too
risky. Apart from the risk of harms to others, courts are not
interested in whether the defendant was unreasonable. The
defendant may unreasonably invest in bags of fortune cookies in
the belief that they predict the future, but such unreasonable
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behavior is not negligent because it creates no risks of harm to

other people. So the reasonable person standard is always applied
to judgments about risky behavior.
Making the reasonable care standard more specific. The legal
system has developed a few ways to make the reasonable person
standard a little more specific. First, courts invest the imaginary
reasonable person with certain mental and physical
characteristics. Second, courts may sidestep the effort to apply
general standards by adopting specific rules about specific kinds of
conduct such as speeding, condemning that conduct as at least
prima facie negligence.87 As a factual truth, courts sometimes
make the standard of care more specific by assessing elements of
breach such as weighing costs and benefits. However, factors
related to breach fall within the province of the jury and an
evaluation of those factors by the court in it’s analysis of the
standard of care supplants the jury’s role, unless reasonable people
could not differ.88
§ 10.6 Circumstances as Part of the Standard:
Special Danger
The invariant standard. A defendant is actionably negligent
only if he fails to use the care of a reasonable person under the
circumstances to avoid known or foreseeable harm.89 The standard
does not change even if the situation is fraught with danger. The
circumstances clause allows courts to take into account the fact
that the danger is great or small as well as other factors bearing on
reasonableness of the defendant’s conduct.90 But the standard
itself remains the same—reasonable care commensurate with
known and reasonably foreseeable danger and other
circumstances.91
The firearm illustration. Firearm cases illustrate how the
reasonable person standard calls for the right amount of care in a
dangerous situation. Suppose the defendant is handling a firearm.
Instead of saying that because of its deadly potential, the
defendant must meet some higher standard of care, courts only
demand that the defendant act as a reasonable person under the
circumstances.92 One of those circumstances is the fact that
weapons can kill and cause grave injury. So the conduct of a
reasonable person handling such a firearm will differ from the
conduct he would use if he were handling a fish. The standard of
care is the same in either case, but the amount of attention or
energy called for by that standard will vary with the circumstance
of heightened danger. In short, the reasonable person standard
requires the defendant to
217
use ordinary care commensurate with dangers and harms

known to him or foreseeable to a reasonable person.93
Commensurate care in other cases. These rules of care apply to
all kinds of cases. They most obviously apply in cases of heightened
danger, as where the defendant is handling toxic substances94 or
firearms, or supplying gas or electricity.95 But it is not limited to
especially dangerous substances. The driver who sees children
playing near the road must exercise care commensurate with the
recognized danger that children may dart out into the road,96 and
the driver who knows he cannot detect a train on an obstructed
track must take his own ignorance into account.97 The owner of a
dog must act on the possibility that the dog will escape,98 and the
operator of a swimming pool must use care proportioned to the
risks that arise when non-swimmers are allowed in the pool,99 and
when young children are swimming, the care required of the pool
operator may be greater.100 The risk of a customer’s fall in a retail
store is small, but if an area of the store has a high volume of
customer traffic, the retailer must take that risk into account and
act with commensurate care.101 What counts as care
commensurate with the risks is the essential question of breach,
sometimes called the negligence question. That question is
determined by the facts; even if danger is great, it may be that a
warning to the plaintiff will suffice to show reasonable care.102
Expressions requiring extraordinary care. When the defendant
confronts heightened danger, it may seem easier to say that he
must exercise the highest care than to explain the full meaning of
the reasonable person standard. Perhaps for this reason, courts
have often said they required the utmost care, or extraordinary
care, or the highest care when it comes to handling a firearm, or
supplying gas or electricity.103 Opinions that speak in
218
such language probably mean only what has already been said,
that the defendant must act as a reasonable person under the
circumstances and that a reasonable person will normally conduct
himself in accordance with the dangers reasonably to be
perceived.104 This is borne out by the fact that when courts
actually focus on the issue, they tend to say that the reasonable
care standard sufficiently covers the case105 and that instructions
on a higher standard of care would be error.106
Most instructions and discussions of commensurate care
emphasize the added effort needed when danger is especially
prominent, but the underlying point is much broader. Special
danger is one, but only one circumstance bearing on the
reasonableness of any given risk. The circumstance that safety is
especially costly, or that it runs risks to other persons, is also an
important circumstance. The relationship of the parties might be
another. So the care required is not strictly the care commensurate
with danger alone, but care commensurate with all the
circumstances, including the probabilities that harm will result.
C. PARTICULAR CIRCUMSTANCES RELATED TO
THE STANDARD OF CARE
Emergency as a circumstance to be considered. When an
unforeseeable danger arises and alternative action is possible but
requires quick judgment, courts often refer to the “emergency
doctrine.”107 If an actor is confronted with a sudden and
unforeseeable emergency not of the actor’s own making, the jury is
permitted to consider the emergency as one of the circumstances
relevant in determining whether the actor behaved reasonably.108
Put differently, even reasonable persons may conduct themselves
in response to an emergency in ways that would not be reasonable
if time permitted more thoughtful decision-making.109 Legal issues
arise mainly because defendants frequently ask the trial judge to
give an instruction specifically authorizing the jury to consider the
emergency in determining negligence, or the related instruction
that the defendant is not liable for unavoidable accident.
Rationale. Although it is convenient to refer to this idea as the
emergency doctrine, it is not, properly speaking, a doctrine at all. It
is instead merely an application of the
219
reasonable person under the circumstances standard, with the

emergency as one of the circumstances.110 That necessarily means
that if the facts show grounds on which reasonable jurors could
differ, the existence of an emergency is a jury question.111 It also
means that since emergency is merely a fact bearing on the
reasonable person’s care in the circumstance, the emergency
doctrine is not a defense and the burden of proof does not shift.112
Departing from the rationale. Some courts have complicated the
generally accepted understanding of emergency doctrine by saying
that it is a defense113 or that it lowers the standard of care.114 It
has also been called an “excuse.”115 And the whole idea was once
explained, not on principle at all, but on the ground that it could be
applied on the contributory negligence issue to assist plaintiffs who
might otherwise be barred entirely.116 Sometimes it is difficult to
determine whether courts so expressing themselves are merely
using loose shorthand language or whether they are seriously
postulating a rule inconsistent with the general standard of
reasonable care.
Examples. Although sudden and unforeseen emergencies can
arise in almost any context,117 most of the emergency instruction
cases involve motor vehicle collisions. The defendant driver is
confronted with a sudden threat from another vehicle—it veers
into his lane, or suddenly begins backing toward him, or suddenly
blocks the defendant’s lane of traffic.118 Or the defendant
encounters unforeseeable ice on the road,119 or suffers a stroke.120
There are as many variations as there are unexpected dangers. In
each case, the defendant steers his own vehicle to avoid the danger,
but in doing so he collides with the plaintiff’s car or perhaps
overturns his own vehicle causing injury to a passenger.
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The emergency doctrine contemplates that the actor has only a

limited time for decisions and actions.121
Negligence in causing or failing to prevent emergency. More
broadly, emergency does not explain the defendant’s conduct that
occurred before the emergency. The defendant who negligently
creates an emergency does not escape liability on the ground that,
once the emergency occurred, he behaved reasonably.122 So the
emergency instruction may be inappropriate when the emergency
is created in whole or part by the defendant’s negligence.123
Foreseeable dangers. An emergency is by definition unexpected.
If a danger is foreseeable and can be prepared for, its arrival is no
emergency at all. For example, a driver who encounters ice on the
road has notice of danger and he does not face an emergency when
he encounters more ice a few minutes later.124 Even without
specific notice, a driver can anticipate that cars ahead may stop
suddenly,125 and that, near a playground, children may run into
the street as the car approaches.126 If those things happen, the
driver cannot claim emergency. He is not necessarily negligent in
such a case, but the question of his negligence is to be judged with
the expectation that he would be prepared for such events, not with
the expectation that he would be unable to cope with them. The
same thing is true with a physician or surgeon suddenly confronted
with complications in the course of a medical procedure; if they are
complications that he should reasonably be prepared for, there is
no emergency in the legal sense.127
Contemporary limitation on emergency instructions. Many
courts are now concerned that emergency instructions themselves
are both unnecessary and undesirable.128 A number have
consequently held that trial judges should no longer give
instructions on
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emergency,129 unavoidable accident,130 or mere happening,131

or that if such instructions are given, that they should be used
rarely or with caution.132 Short of this, courts may simply uphold a
trial judge’s refusal to give the instruction on the ground that the
general negligence instruction with its fault standard is sufficient
to permit all the jury arguments that would be made under an
emergency instruction.133
Rationales for rejecting the instructions. The tradition of giving
some or all of the instructions probably reflected the view that
juries should be channeled as narrowly as possible by specific
rules. The reluctance some judges now feel about those instructions
may reflect the opposite view that juries can work fairly with
guiding principles and rules in light of counsels’ argument on both
sides.
Statutes creating defenses or immunities in quasi-emergencies.
Statutes have created rules that go beyond the emergency doctrine
for at least two specific situations involving urgent demands that
would not necessarily qualify for the emergency doctrine. One kind
of statute makes a special provision for emergency vehicles such as
ambulances, fire engines, or police vehicles. Some of these statutes
require reasonable care under the circumstances,134 but others do
not, with the result that the operator of an emergency vehicle is
not only privileged to disobey traffic rules but also to drive
negligently; he is liable only if he goes beyond negligence and acts
recklessly.135 Under these latter decisions, the statutory provisions
in effect provide a lower standard of care. States have also adopted
statutes providing special protections to doctors and sometimes
222
others who provide care in certain emergencies. The statues

usually eliminate liability for negligence altogether, leaving
liability only for reckless or gross derelictions.136
§ 10.8 Objective and Subjective Features of the
Standard
Standard as objective. The reasonable person care standard is
very largely but not entirely objective. The first clause in the
standard demands the safety efforts that a reasonable person
would make. The standard applies to cases generally, and it is
objective because it demands conduct that might be easy enough
for the hypothetical reasonable person but that might be difficult
for the real and particular defendant. The standard holds the
actual defendant mainly to the standards of the ideal reasonable
person rather than to the real-life defendant’s own best judgment
or ability.
Characteristics of reasonable people. When we ask about the
characteristics of the reasonable person against whom the
defendant is judged, we find that the standard is in part objective.
The reasonable person whose standards the defendant must meet
is said to have reasonable prudence as well as these attributes:
(1) normal intelligence;137 and
(2) normal perception, memory, and at least a minimum
of standard knowledge.138
However, the standard is also in part, subjective. The reasonable
person also has these attributes:
(1) all the additional intelligence, skill, or knowledge
actually possessed by the individual actor; and139
(2) the physical attributes of the actor himself.140
Semi-subjective components. The first set of attributes in effect
insists on the objective standard. The defendant whose intelligence
is less than normal, for instance, is still held to the objective
reasonable person standard. He cannot escape liability by doing his
own, personal or subjective best. On the other hand, the second set
of attributes could be seen as subjective standards because they
refer us to the defendant’s own special intelligence or skills and his
own special physical characteristics. Even these latter items,
however, call for a kind of objective judgment. The objective
reasonable person would surely use any special physical or mental
abilities he might have to avoid unreasonable risks to others, and
would take into account any physical limitations or gifts he might
have for the same purposes. So in an important practical sense, all
of these attributes of the reasonable person ask us to judge the
defendant’s conduct by a largely objective standard.
Circumstances alter cases. The other clause in the standard
“reasonable care under the circumstances” emphasizes the
particular facts of the particular case—the circumstances. This is
not necessarily a subjective standard; it does not ask whether the
defendant is to be excused because he was having a bad day or held
to an especially high standard because he had a good night’s sleep.
Instead, it tells us that what counts as
223
reasonable care will vary with the risks presented. The

reasonable person will exercise care commensurate with the
danger.141 Perhaps, for example, a reasonable person would slow
down when driving near a group of playing children, but not when
driving past a pile of cardboard boxes.
Flexibility from consideration of circumstances. The
circumstances clause also has a forgiving aspect. For example, if
the defendant was required to act in an emergency not of his own
creation, he might react differently than would be reasonable if he
had greater time for contemplation. Measuring the defendant’s
conduct against that of the hypothetical reasonable person under
the circumstances, including the circumstance of emergency, we
may think the defendant not negligent, even though such a
reaction time might be counted as negligence if there were no
emergency at all.142 The circumstances clause brings flexibility and
common sense to the standard.
Adding content to the reasonable person. All this is very well,
but exceedingly abstract. For practical judgments about
negligence, judges and jurors need considerably more than to be
told to demand reasonableness. A degree of concrete content can be
added to the reasonable person formula by specifying the kinds of
mental or physical abilities the defendant must use to avoid
creating unreasonable risks to others. This is conventionally done
by saying that the reasonable person has certain attributes of mind
and body and that he uses them in certain ways. The next sections
discuss the attributes of the hypothetical reasonable person.
Physical disabilities. The reasonable person standard becomes
partly subjective when it comes to physical attributes of the
defendant. Except in the case of voluntary intoxication in which
the actor’s limitations are ignored,143 one with physical illness or
other physical disability is held to the standard of a reasonable
person having such a disability, not to a standard of some ideal or
average physical capacity.144 A short or unsighted person is not
expected to see and avoid danger that could only be perceived by a
taller or sighted person. One with a hearing loss is not expected to
hear approaching danger.145 The same idea applies to other
physical disabilities or limitations.146
Protective aspects of the rule for disabled persons. (a) Known
physical traits. Sometimes this rule is discussed as if it were
especially protective of persons with
224
disabilities or physical limitations.147 Sometimes that is true.

The rule says in effect that an unsighted person is not to be
considered negligent merely by going out into the world.148 The
rule forestalls the specious argument that an unsighted person
would be negligent in crossing the street because the standard
reasonable person would not close his eyes while crossing.149
(b) Unknown physical traits, sudden incapacity. The rule also
helps protect the defendant who is reasonably unaware of a
physical limitation or disability until it results in harm. The
defendant who is suddenly and unforeseeably incapacitated while
driving, as the result of a heart attack or seizure may lose
substantial control of his vehicle and inflict great harm, but even if
his movements count as action and not merely as a reflex, he is not
in violation of the reasonable person standard and not liable for the
harm done, so long as the physical seizure was in fact
unforeseeable.150 This has sometimes been referred to as an
affirmative defense,151 but it actually rests on the proposition that
the defendant is judged by his own physical capacity and is simply
not negligent unless he knows or should know that he may become
incapacitated.
The demanding side of the rule for disabled persons. The
physical disability rule is not always protective of disabled persons.
First, a disability does not necessarily prevent a person from acting
to secure reasonable safety and if it does not, it is irrelevant to the
negligence issue.152
More importantly, a person with physical disabilities or
limitations must still act as a reasonable person with those
limitations in mind. To the extent that a reasonable person with
similar limitations would do so, a disabled person must adjust for
limitations by using other senses or by altering conduct to
minimize the risks created by the disability.153 For example, one
who is of small stature and cannot reach the brake pedals, may be
negligent in driving a car not equipped with hand controls; a
reasonable person of such stature would not drive without being
able to stop the car.154 A person with failing vision may be
expected to take special precautions to meet the standard of
reasonable
225
care,155 or even to avoid altogether an activity like driving (at

least until autonomous vehicles are on the road).156
In the same way, one who knows or can reasonably foresee that
he is subject to seizures that prevent safe driving may be negligent
in driving if those seizures cannot be controlled.157 One who has
previously undergone hip surgeries may be negligent for hiking
alone on a difficult trail in inclement weather.158 And one who
recognizes the onset of an insulin reaction, drowsiness, or fatigue
may be unreasonable in continuing to drive or operate
machinery.159
Contributory negligence. The same general standards apply
when the issue is contributory negligence of the plaintiff instead of
negligence of the defendant.160
Physical prowess. It seems probable that the defendant will be
expected to act reasonably in the light of any special physical
abilities he might have. If a strong swimmer attempts to save a
drowning person; he would almost certainly be expected to use
whatever added strength and stamina he has and would not
readily be exonerated for giving up the effort merely because he
had reached the limits of endurance that could be attributed to the
hypothetical reasonable person.
Liability of mentally disabled. In the United States, persons
suffering mental disability are liable both for their intentional161
and negligent torts.162 The Restatement Third took a position,
consistent with the Restatement Second, that “[a]n actor’s mental
or emotional disability is not considered in determining whether
conduct is negligent, unless the actor is a child.”163
Only limited and somewhat peculiar authority qualifies the
general rule of liability. Wisconsin has held that one cannot be
liable for acts committed as a result of a sudden onset of an
unforeseeable insanity.164 New York once seemed to hold that
liability would
226
not be imposed for harm caused by a person who became insane

as a result of extraordinary efforts to protect the plaintiff.165
Otherwise, however, the rule that mentally impaired persons are
liable for their torts seems to be accepted within the United States,
though other countries have rules to the contrary.166 Moreover,
persuasive arguments have been advanced for adjusting the
standard of care for people with mental limitations.167
Standard of care. The standard of care applied to an adult
suffering mental impairment or psychological disturbance remains
the standard of the reasonable prudent person of normal
intelligence, judgment and rationality. Consequently, defendants
who suffer from bad judgment or mental deficiency,168 insanity169
or antisocial penchants for abusing children170 are held to the
objective or “external” standard of the reasonable prudent person.
The same is true with one who is voluntarily intoxicated.171 Put
differently, if the defendant’s conduct, carried out by sane or sober
people, would count as negligence, the defendant cannot escape
liability on the ground that he behaved as a reasonable and
prudent person afflicted with insanity or drunkenness. This
objective standard of care does not necessarily mean that a person
with diminished capacity will be held liable in every case. It is
quite possible that an Alzheimer’s patient could escape liability for
harms he negligently inflicts upon his own caregivers; in such a
setting, the duty of care is a one way street, the caregiver owing a
duty to the patient, not the patient to the caregiver.172
Fault of the plaintiff. Similar rules or standards may apply to
the plaintiff who is charged with contributory negligence or
comparative fault.173 But some courts have resisted this view,
preferring to apply a subjective standard to plaintiffs who suffer
mental limitations.174 Some courts have also distinguished
complete insanity from some lesser mental impairment, holding
that the plaintiff is not to be charged with
227
contributory negligence or comparative fault if she has no

ability for self care,175 or is under the care of others.176
In some cases there are probably better explanations for
allowing a mentally impaired plaintiff to recover in spite of conduct
that objectively appears to count as contributory negligence. In
many instances, the defendant is under a duty to protect the
plaintiff from her own fault, as where the defendant is the
plaintiff’s custodian.177 A similar approach explains the
defendant’s liability in the case of jailers who fail to protect
intoxicated or suicidal prisoners178 and in other cases in which the
defendant is aware of the plaintiff’s disability.179
§ 10.11 Bases for and Alternatives to the Mental
Capacity Rules
Civil law alternatives. In a sense, courts impose a kind of strict
liability when they hold a person responsible for harms he did not
have the mental capacity to avoid. A different approach would be to
regard the mentally incompetent person as a force of nature, like
lightning, and leave it to all other individuals to insure themselves
or provide their own protection.180 Some civil law countries, in fact,
have immunized the insane person from tort liability, at least in
certain circumstances.181
Justifications for the objective standard. A number of
justifications have been advanced in support of the objective
standard.182
(1) Role of objective standards in judicial process. One
justification for objective standards in law generally is that they
are essential if the judicial process is to remain transparent,
accessible and accountable. Lawyers and litigants cannot evaluate
judges or the legal process itself if judges can decide the standard
in each case, without reference to a fixed standard that lawyers
can understand, discuss and argue. If the standard were
subjective, it would be difficult (though not impossible) to adduce
evidence that the
228
defendant did or did not do his best given his impairment, but
even more difficult to know whether the judge or jury made a
justifiable decision.
(2) Difficulty of distinguishing incapacity from poor capacity. It
may be impossible to distinguish insanity that should exonerate an
individual from all the other determinants that shape an actor’s
conduct. No one is responsible for choosing his or her own genetic
makeup, life experience, body chemistry or mental ability. So far as
conduct is determined by those things, it can be said that no one is
responsible. A person who causes harm through impatience,
awkwardness or stupidity in this sense is not morally responsible
for his actions. But neither law nor society could survive a rule that
exonerated every such fault.183 The immunity suggested by such
reasoning could be pared down by drawing a distinction between
stupidity and mental deficiency, but that distinction is difficult to
draw as a practical matter and perhaps morally unjustified as well.
Similarly, the distinction between mental disability and a
propensity for bad behavior may be difficult to maintain. For
example, the difference between someone who sexually abuses
children and someone who suffers a “pedophilic disorder” is in the
mind of the observer.184
(3) Difficulty of making causal judgments and setting an
appropriate subjective standard. Mental impairments do not
necessarily prevent safe behavior; even a person suffering from
schizophrenia may drive well. Any rule exonerating insane persons
would necessarily force courts to not only decide what counts as
insanity but also determine whether the particular insanity on the
particular occasion caused the defendant’s negligent conduct. And,
since some insane persons can do some things safely, courts would
be obliged to impose some kind of standard, so that the defendant
would remain liable for those harms he could reasonably avoid.
This might come uncomfortably close to saying that an insane
person would be held to the standard of a reasonable and prudent
insane person with the defendant’s particular insanity.
(4) Choosing between innocent parties. Tort liability is not a
criminal conviction or a badge of infamy. The insane defendant will
be obliged to pay a tort judgment, but only if he has the money to
do so. The loss must fall somewhere, and as between the injured
victim and an insane defendant with insurance or sufficient funds
to pay, the loss may appropriately fall upon the defendant who
caused the harm. While courts at times adopt this reasoning,
courts often reject this same reasoning in contexts in which
negligence as judged by an objective view is absent.
(5) Incentives. Finally, some authorities have suggested that
tort liability will provide proper incentives to those “in charge” of
the insane person to control his conduct. This point does not seem
quite right. If one in charge is negligent in failing to control the
insane person, he will be liable for his own negligence. If incentive
is obtainable in the law of negligence, liability of the caretaker for
his own negligence should be more effective than liability of the
insane person himself. If the caretaker is not negligent but on the
contrary has exercised optimum care to control the insane person,
there is no reason to give him incentives to do more.
229
§ 10.12 Knowledge, Perception, Memory,

Experience, and Skills
Reasonable person standard as to knowledge and memory.
Ordinary care requires one to act in a way that would be
reasonable given the knowledge or information that would be
possessed by a reasonable person under the circumstances.185
Relatedly, one must also exercise senses reasonably for the
perception of danger,186 and to fix and retain significant
information in memory for a reasonable period of time.187
Forgetfulness is usually forgiven only when there is a specific
reason for it, such as distraction or emergency.188
Knowledge possessed by a reasonable person. The reasonable
person has some general knowledge in common with others in the
community. Knowledge in this sense means systematic information
capable of generalization and use in various situations. If you know
that dropped objects fall, you will probably perceive a risk that
others might be harmed if you were to drop a torts book off a tall
building. Speaking of knowledge in this sense, the Restatement
has it that the knowledge of a reasonable person is the knowledge
that is common in the community generally.189 The rule means
that the defendant is expected to act in a way consistent with
knowledge of commonly understood dangers, for example, that
high electrical voltages can kill, gas can explode when combined
with fire, that children have a propensity for darting into the
street, and that a snarling dog can inflict wounds by biting.190 On
the other hand, the defendant is not expected to have specialized
knowledge, for example, knowledge that gasoline fumes are
heavier than air,191 or, possibly, that small babies are more likely
to die if allowed to sleep on their stomachs.192
Variation in knowledge over time. The knowledge held by
reasonable people changes over time and varies with place. At one
time people knew little or nothing about the dangers of tobacco or
asbestos. An architect who specified asbestos in a building in the
1930s would not be expected to know that it could cause serious
injury, but almost everyone today knows otherwise. Because of this
variation in knowledge from time to time and place to place, the
question of appropriate knowledge is often submitted to the jury,
subsumed in the broader question whether the defendant
conducted himself in an
230
unreasonably risky way. There are, however, some decisions

that require the plaintiff to prove what knowledge a reasonable
person would have had.193
Information vs. knowledge. Information, in the sense of isolated
facts of transient importance, is different from knowledge that can
be generalized. We all know objects fall, but we do not all know the
same particular facts. For instance, you know, but others do not,
that a pot is on the range and the burner is on. Information of this
kind differs from knowledge because this information cannot be
generalized; it is both ephemeral and peculiar to circumstances.
We might expect everyone in the community to have the knowledge
that gunpowder can burn or explode, but we might not expect
everyone who sees “sand” in a jar to have the information that the
sand is actually gunpowder.194 Although we cannot standardize
the particular information that a reasonable person will possess,
we can say that a reasonable person would always use the
information that he has acquired or should have acquired in
particular circumstances. If the defendant knows or should know
that his car’s brakes have ceased to work, he must act on that
information.
Knowledge of one’s own ignorance; failure to acquire
information. In some instances the actor knows or should know
that he is ignorant of facts that might prove important in
estimating a risk. If a reasonable person finds herself in a strange
place confronted with a bottle that says “Drink Me,” she may know
nothing about the bottle’s contents, but she surely knows of her
own ignorance. Reasonable care may require her to find out
something about the bottle’s contents or provenance before she
imbibes. This is not because she is expected to know the bottle’s
contents but because what she does know tells her that more
information should be sought.195
Superior or specialized knowledge or skill. A reasonable person
will act in the light of (a) knowledge shared by the community
generally and also (b) information, knowledge and skill that he
himself has that is not generally known and that reasonable people
would not ordinarily have.196 The Restatement Second put this by
saying that the standard is the standard of the reasonable person
with the superior knowledge, skill, and other qualities of the
defendant.197 The newer Physical Harms Restatement uses a
slightly different formulation—the special skills or knowledge of
the actor are “circumstances to be taken into account in
determining whether the actor has behaved as a reasonably careful
person.”198 The rule applies not only to knowledge in the broad
sense, but to transient, particularized information; one who knows
that the floor is wet and slippery must use care commensurate
with that circumstance.199
Professionals. The superior knowledge rule has obvious
application to professionals like physicians and surgeons, who are
held to possess the skill and knowledge of others
231
in good standing in their profession.200 A physician who knows
more than a layman must use that additional knowledge in the
practice of medicine. But the point reaches even further. A
physician who knows more than other physicians is also expected
to use that special knowledge. Physicians who know more must not
stop short of appropriate treatment on the ground that other
physicians would have done no better.201 The principle applies
equally to any kind of skill or experience. A person with special
knowledge about the operation of earth scrapers is expected to use
that knowledge to avoid injury to others.202 And a person issued a
commercial driver’s license to drive a semi-trailer truck must use
his special knowledge of driving those vehicles.203
Reasonable person standard and superior knowledge. The
superior knowledge rule can be explained by saying that the actor’s
superior knowledge is one of the “circumstances” that a reasonable
person would take into account204 or by saying that a reasonable
person will use all the knowledge he actually has in dealing with a
recognizable risk. Either way, the standard of care, that of the
reasonable person under the same or similar circumstances,
remains the same.205 So it is right to tell a jury that a reasonable
person will use the relevant special knowledge he has,206 but not
right to tell the jury that he is held to a higher standard of care.207
However, courts sometimes find it easier to express the idea as a
standard or duty. For example, the Nebraska Supreme Court has
said that the standard applied to a certified high school sports
coach is that of a reasonable person holding the certificate.208
Sober person standard vs. risk of drinking. A voluntarily
intoxicated person209 is in effect held to the standard of a
reasonably sober person.210 This seems to contradict the rule that
the reasonable person has the physical attributes of the actor. The
seeming contradiction is ameliorated by the fact that the decision
to ingest alcohol or drugs itself creates a risk that the actor’s
physical (as well as mental) capacities will be diminished. One who
drinks knowing he will soon drive a car, for example, may be
negligent or contributorily negligent in choosing to drink under
those circumstances. Liability might
232
then be imposed less because the sober person standard is

applied and more because the defendant took unreasonable risks in
drinking at all.
Overt conduct required to establish negligence. Intoxication
cases raise another problem. Negligence consists of harm-causing
conduct.211 Neither the defendant’s state of mind nor his physical
condition are in themselves negligence. Consequently, the mere
fact that a person’s mental or physical faculties are affected by
alcohol, does not necessarily lead to the conclusion that the person
was negligent if his overt conduct was blameless. On the other
hand, if the person was driving and drove too fast, or failed to keep
a lookout, or drove in the wrong lane of traffic or violated
acceptable blood-alcohol levels in a drunk driving statute, his
conduct shows a departure from the reasonable person standard,
and liability is appropriate, but because his conduct was faulty, not
simply because he was intoxicated.212
Statutes. Statutes make intoxication particularly relevant in
certain kinds of cases. For example, statutes prohibit driving while
intoxicated or under the influence of alcohol. Some courts say that
violation of such statutes is negligence per se, that is, negligence in
itself.213 But since the defendant’s intoxication must lead to
specific negligent conduct, such as an improper lookout or driving
on the wrong side of the road,214 and must be a “proximate cause”
of the plaintiff’s harm,215 some states refuse to characterize
violation of the statute as negligence per se.216
Fault of the plaintiff. What’s sauce for the goose is sauce for the
gander and the intoxicated plaintiff charged with contributory
negligence would normally come under the same rules as the
intoxicated defendant.217 But courts have sometimes excused the
plaintiff on the theory that at some point drinking may become
involuntary or that the plaintiff’s drinking was not a proximate
cause of her injury.218 And in some cases, the defendant may be
under a duty to protect an underage plaintiff from her own
intoxication—if underage drinking is the very risk the defendant is
obliged to guard against.219
233
D. THE STANDARD OF CARE FOR CHILDREN

Liability of children. Very young children—usually those under
about four or five years of age—are generally thought to be
incapable of negligence.220 Under the “rule of sevens,” followed in a
few states, children up to the age of seven are protected from tort
liability, and children from ages seven to fourteen are
presumptively incapable of negligence.221 Otherwise, children are
not immune from tort liability merely by virtue of their status as
children.222 However, the standard of care expected of children is
another matter.
Subjective standard generally. With some exceptions, children
are not subjected to the reasonable person standard but are
instead held to a standard that is largely subjective. A minor, even
an older one, is not required to conduct himself as a reasonable
adult or even as a reasonable child of similar age.223 The minor is
instead required to conduct himself only with the care of a minor of
his own age, intelligence, and experience in similar
circumstances224 and juries are so instructed.225 In line with this,
a minor’s violation of a statute is usually not considered as
negligence per se.226
The child standard for child plaintiffs and defendants. Many of
the cases articulating the subjective child standard are concerned
with the contributory negligence of the child plaintiff. But child
defendants as well as child plaintiffs may escape liability because
they acted reasonably in light of their own limited capacity.227 The
rule is not an immunity, though, and if a child fails to use his own
intelligence and experience reasonably, he may be liable as a
defendant228 or find his action barred229 or damages
234
reduced as a plaintiff, unless the defendant owes him a duty to

protect him against his own negligence.230
Factual settings for the rule. Although children may be held to
the adult standard in the operation of motor vehicles,231 the child
standard is readily invoked to protect children against legal
responsibility for their acts in the course of ordinary childhood
games232 and common childhood activities like bicycle riding233 or
dashing for the ice cream truck.234 But it also protects children
from responsibility for injuries resulting from activities, like
playing with fire, that are in no way innocent.235
Standard: objective in form, subjective in fact. The child
standard of care is cast in an objective form, referring as it does to
a hypothetical child. However, the standard is actually subjective
because it ultimately refers back to the individual child himself. He
is to act as a person with all of his own important qualities, that is,
as a person of his age, his experience, and his intelligence. In other
words, in spite of its form, the standard is quite literally
subjective.236
Children with limitations or special abilities. The child with
mental limitations is not expected to conduct himself with the care
of the ordinary child, but only with the care his mental abilities
and experience permit.237 Conversely, a child whose intelligence
and experience give him the capacities of an adult will be expected
to act with the same care as a reasonable person.238 And, since age
often correlates with capacity, conduct that is negligent in a 17-
year-old may not be negligent in a 14-year-old.239
Holding children responsible. In a sense, the child standard is
almost no standard at all; it holds the child to whatever he can
reasonably do. However, if the child appears to have normal
capacity for his age, the conduct and capacity of real-life children of
the same age may provide evidence as to the child’s probable
capacity.240 Courts have thus held in particular cases that evidence
was sufficient to make a jury issue on the minor’s negligence or
contributory negligence.241
235

Incapacity. Prosser suggested that the child standard is
appropriate because children cannot meet an adult standard.242
This seems to be no rationale at all. The same could be said of
insane persons for whom no similar protection is provided. Prosser
also suggested that children differ from adults with limited
intelligence because the limitations of children are normal to the
whole class.243 The distinction may be sound, but it does not
support the subjective standard for children that courts profess to
follow. It supports instead only an objective standard based upon a
reasonable child of similar age.244 Perhaps that is in fact how
juries interpret the standard.
Protecting children from their contributory negligence. Part of
the motivation for adopting a child standard, as distinct from the
rationales, no doubt turned on a desire to protect the child from the
effects of her own contributory negligence when she was injured by
the defendant. Under the original contributory negligence doctrine,
a plaintiff guilty of failure to exercise care for her own safety was
simply barred, even if the defendant was far more faulty.245 In the
latter half of the 20th century, however, almost all states in the
United States had adopted some form of comparative negligence
rule under which a plaintiff can recover from the negligent
defendant in spite of the plaintiff’s own contributory fault, with an
appropriate reduction in damages awarded.246 Perhaps more
importantly, however, courts now perceive the possibility that
when the plaintiff’s minority is known to the defendant, the
defendant’s duty of reasonable care will require him to protect the
plaintiff from his own immaturity so far as that can be done
reasonably.
Encouraging child development. What has been called the
welfare rationale247 asserts that children must be permitted to
gain experience by acting in the world in order to mature, to learn
by doing, and to become socialized by interacting with others. The
implicit argument of this rationale may be that tort liability would
discourage daily activities of children.
Fairness of protection of child defendants. The welfare rationale
may merge with the “fairness” rationale if it is based upon the idea
that it would be particularly inappropriate to tax a child defendant
with tort liability that might cloud his whole adult life when the
child is in fact incapable of taking greater care.
Doubt about these rationales had led at least one commentator
to suggest a fundamentally different scheme of child liability.248 In
this structure, carefree or childhood activities of children are
distinguished from more dangerous ones. The child standard would
be used only for the former, presumably, for example, the games of
younger children. For activities that are not of the carefree kind
needed for child development, that is to say, dangerous activities,
an adult standard would apply. The
236
Restatement and some courts have already imposed an adult

standard upon older children for a limited number “of adult
activities.”249
Adult standard of care. Most courts that have considered the
question now say that children engaged in certain activities are
held to the adult reasonable person standard of care.250 Most of the
cases have held so when a child was operating a motorized
vehicle,251 boat,252 plane, snowmobile,253 or machine254 and most
have gone no further. Quite possibly, courts would refuse to impose
the adult standard on very young children, even when they operate
motorized vehicles.255
The adult standard has not usually been applied to minors who
handle firearms,256 although their use is dangerous. The adult
standard has likewise been rejected when it comes to children
setting fires.257 The emphasis on the operation of motorized
vehicles leads to some odd results: while a 12-year-old is held to an
adult standard in operating a motor boat,258 a 16-year-old is held
only to the “child” standard while skiing259 or attempting to climb
out the window of a moving truck.260
Generalizations as to activities covered. The Restatement
Second applied the adult standard to those activities as those
normally undertaken by only adults, and for which adult
qualifications are required.261 The Restatement Third says that
the adult standard applies “when the child is engaging in a
dangerous activity that is characteristically undertaken by
adults.”262
237
Insurance. Courts have probably been moved to apply the adult

standard by several different feelings. They are almost certainly
influenced by the fact that liability insurance can and usually does
cover activities in motorized vehicles, so that if a minor is held
liable there is a good chance that he will not find himself saddled
with a heavy debt at the beginning of his adult life.
Reasonable expectations of the other party. Reasonable
expectations of others provides a reason for and a limitation to
extending the adult standard to children. In an early leading case,
the court in Dellwo v. Pearson reasoned that while one observing
children at play may anticipate risky conduct, those at risk from
motor vehicles usually cannot recognize that they are dealing with
minors.263 Other drivers’ expect that all vehicle drivers will
exercise an adult level of safety. That expectation undermines the
other drivers’ ability to forestall danger in the case of a minor with
whom they do not deal face to face. So when the older minor
creates risk to others who cannot identify the actor as a minor or
protect themselves, the adult standard seems the most appropriate
one for protecting the reasonable expectations of the other party
and indeed of the community at large.264 However, the reasonable
expectation rationale implies a limitation as well as an expansion
of the adult standard. When the plaintiff knows she is dealing with
a minor-defendant and has opportunities to protect herself, the
reasonable expectation rationale offers no occasion to apply the
adult standard.
E. OTHER STANDARDS OF CARE
The general standard and alternatives. The general standard of
care, the duty of the reasonable person under the circumstances,
could conceivably be applied in all cases, leaving it to the jury to
determine whether, on the facts, the defendant breached that duty
by his negligence. However, courts and legislatures do, in fact,
impose different standards in particular categories of cases. Such
standards may require the defendant to exercise greater care,
notably where the defendant is a common carrier obliged to
exercise the highest degree of care.265 More often, they create a
lower standard which relieves the defendant of a duty to exercise
ordinary care, as in the case of guest statutes.
Different standards of care. In the past, focusing on the status,
relationship, or undertakings of the parties, courts held that
landowners owed only the duty to not wantonly or intentionally
injure trespassers and licensees;266 that health care providers
owed the duty of care established by their peers, which was
sometimes of the highest
238
quality but sometimes woefully unsafe;267 and that

governmental entities, 268 charities,269 and parents 270 were
immune to suits by citizens, beneficiaries, or children, respectively.
Courts also once held that no one owed a duty of care to a fetus271
or a duty of care to avoid killing a person272 or causing her
emotional harm.273 Nor was a duty of reasonable care owed to take
any affirmative steps to aid a person in danger.274 Courts have
gradually altered the limited duty rules in most of these categories,
which are discussed at greater length in Part IV. In almost no
instance, not even in the case of government immunities, is the
defendant without some residual obligation of care, however
circumscribed it may be.
More and less negligent acts. To say that there are different
potential standards of care is not to say that a different standard of
care is required just because breaches of a single standard of care
are not equivalent. Although negligence is ordinarily determined
by the care of a reasonable person under the circumstances, some
negligent acts deviate enormously from that standard while others
deviate only slightly. If it is unreasonably risky to drive at 70 mph
under given conditions, then it is more risky to drive at 90, and
more risky still to do so when children are playing nearby and
likely to dart into the street. If the probability or magnitude of
harm is higher, we can think of the defendant as “more” negligent.
Similarly, if the utility of the defendant’s conduct diminishes, even
the same risk becomes less justified, which makes his conduct
more aggravated. To recognize this point is not to displace the
reasonable person standard but to uphold it. The reasonable
person recognizes that greater risks call for increased caution, or,
as the courts say, care commensurate with the risks.
An older view: degrees of negligence. This line of thought
suggests that there is one standard of care but many degrees of
negligence in violating that standard. An early 18th century judge,
however, came up with the idea that all negligence could be
classified in three degrees—slight, ordinary, and gross.275 The idea
was that a person might be guilty of slight negligence if he failed to
exercise extraordinary care or guilty of gross negligence if he failed
to exercise even slight care. This tripartite division of care
happened to fit neatly into the judge’s ideas about the kind of care
required in bailment cases. He thought you would be obliged to
exercise only slight care if you held another’s property as a favor,
and hence you’d be liable only for gross negligence. On the other
hand, if you held another’s property for your own benefit, you’d be
obliged to exercise extraordinary care and would be liable for slight
negligence. If the bailment was for mutual benefit, ordinary care
would be required and you would be liable for ordinary negligence.
This little schematic picture has not been needed since 1850 when
courts
239
began to recognize that the single standard of care took all the
circumstances into account, but is still sometimes the basis for
decisions in bailment cases.276
Should have known vs. reason to know. In a few specific
instances, courts say the defendant owes no duty of care to act on
the basis of what the defendant should have known but only on the
basis of what he actually knows or has reason to know.277 Under
the Third Restatement, a duty to warn is said to be so limited.278
The “reason to know” test has also been used in some cases of
employer liability,279 and to buttress the special protections
afforded landowners.280 The distinction between the foreseeability
standard of the “should have known” test and more demanding
requirement of the “had reason to know” test has been recognized
by courts in some other contexts.281 If there is a principle behind
the reason to know rule, it is not necessarily apparent. Nor is it
entirely clear that the distinction between what a person should
have known and what he had reason to know is always a workable
difference. The “reason to know” standard may slightly limit
liability when harm was foreseeable but the actor had no reason to
know of it. But the distinction has not proved significant in the
great mass of cases. The ordinary foreseeability or should have
known rule is usually adequate to assess care without the “reason
to know” complication.282
§ 10.18 Gross Negligence, Recklessness, and
Wanton Misconduct
Gross negligence under statutes. The gross negligence standard
is not often accepted as a common law standard.283 It is more
frequently adopted in statutes to limit defendants’ liability. Such
statutes include the now almost-extinct guest statutes,284 and
those offering special protections to preferred defendants such as
charities285 or
240
governmental officers or agencies,286 as well as specialized

statutory instruments,287 all of which may protect defendants from
liability for ordinary negligence. “Gross negligence” is an important
term in the Oil Pollution Act, and a significant amount of liability
in the Gulf oil spill will turn on interpretation of the term.288
Gross negligence defined. The term gross negligence can be used
to mean what it says—a high, though unspecified degree of
negligence, or as courts sometimes say, the failure to use even
slight care.289 This means conduct that is a more serious departure
from safety norms than ordinary negligence, either because the
risk itself is more substantial or because the risky conduct
produces less compensating benefits. Used in core sense, the term
“gross negligence” would not require any particular state of mind
so long as the conduct itself creates an extremely unjustified
risk.290 Many courts, however, have defined gross negligence in
particular cases as requiring a bad state of mind as well as
extreme fault.291 When they do so, they usually give gross
negligence the same definition as willful and wanton misconduct,
so that in such cases gross negligence has no distinct meaning of
its own.
Reckless, willful or wanton conduct—common law. As a
standard of care, recklessness or wanton misconduct is only
occasionally found in the common law of torts.292 One notable
instance is that under traditional rules, landowners owe only a
limited duty of care to many persons on the land and are
sometimes liable only for reckless or wanton conduct or the like.293
Another is the contemporary rule followed in many courts that
sports participants are not responsible for negligent injuries but
only those recklessly or wantonly caused.294 On the matter of
damages, punitive damages can be awarded when the defendant is
guilty of malice, and some courts also permit recovery of punitive
damages when the defendant is guilty of willful or wanton
misconduct.295
241
Reckless, willful or wanton conduct—use in statutes. The

reckless/wanton standard, like the gross negligence standard, is
largely a statutory limitation on duty governing particular classes
of cases, not a common law rule.296 The Good Samaritan statutes
relieve health care professionals of any responsibility for
negligence in medical emergencies, generally imposing liability
only for reckless or wanton misconduct.297 Statutes also often
provide that operators of emergency vehicles like fire engines are
liable only for reckless or wanton misconduct.298 Similarly,
statutes may limit the liability of public entities to cases of wanton
misconduct.299 Some of the old guest statutes provided that the
driver of an automobile was liable to a nonpaying guest only for
gross negligence, but others limited liability to cases of willful,
wanton, or reckless conduct.300
Elements of reckless, willful or wanton conduct. Two elements
are required to show reckless or willful and wanton misconduct.
a) The risk-utility balance must strongly disfavor the
defendant’s conduct—the risk must have been high, or very serious
harm must have been threatened, or the cost of avoiding the
danger must have been very low.301 Courts sometimes state that
the danger must be great302 or that the harm must be highly
probable,303 but these may be regarded as a short form of the more
accurate statement that the risk must be high considering the ease
of avoiding it or the seriousness of harm threatened—the net
unjustified risk.304
b) Courts have often said that reckless, willful or wanton
misconduct also entails a mental element. The defendant must
know or have reason to know of the risk305 and must proceed
without concern for the safety of others, a rule often expressed as
requiring conscious indifference to the rights of others as a
condition of liability.306
242
Known risk permitting inference of conscious indifference. Some

authority relaxes the conscious indifference element, finding
recklessness under an “objective standard” when the defendant
knows or has reason to know of the risk and a reasonable person
would recognize that it was a very serious risk.307 The
Restatement Third came up with a slightly different approach to
the mental component. It provides that recklessness can be found
when the defendant has reason to know the risk and his failure to
adopt precautions amounts to a “demonstration of [his] indifference
to the risk.”308
Special treatments of willful and wanton. By any definition,
recklessness is not the same as intentional harm, but courts
sometimes treat “willful” and “wanton” misconduct more like an
intentional tort than a negligent one,309 though at other times
these words are treated essentially like recklessness.310
________________________________
1 Prosser & Keeton on Torts § 53, p. 356. Romain v. Frankenmuth
Mut. Ins. Co., 483 Mich. 18, 762 N.W.2d 911 (2009); Lahm v. Farrington,
90 A.3d 620 (N.H. 2014); MacGregor v. Walker, 322 P.3d 706 (Utah 2014).
The same point is commonly established by the numerous cases that list
duty as an element of the negligence claim. E.g., Giggers v. Memphis
Hous. Auth., 277 S.W.3d 359 (Tenn. 2008).
2 Prosser & Keeton § 53, p. 356.
3 Id. § 53, p. 358.
4 Lucero v. Holbrook, 288 P.3d 1228, 1232 (Wyo. 2012).
Harm) §§ 7 and 37 (2010).
6 Gipson v. Kasey, 214 Ariz. 141, 142–43, 150 P.3d 228, 230–31
(2007) (“A conclusion that no duty exists is equivalent to a rule that, for
certain categories of cases, defendants may not be held accountable for
damages they carelessly cause, no matter how unreasonable their
conduct.”).
7 Beacon Residential Cmty. Ass’n v. Skidmore, Owings & Merrill
LLP, 59 Cal.4th 568, 327 P.3d 850, 173 Cal.Rptr.3d 752 (2014); Forsythe v.
Clark USA, Inc., 224 Ill. 2d 274, 864 N.E.2d 227, 309 Ill. Dec. 361 (2007);
Commerce Ins. Co. v. Ultimate Livery Serv., Inc., 452 Mass. 639, 897
N.E.2d 50 (2008).
8 E.g., Kane v. Lamothe,182 Vt. 241, 936 A.2d 1303 (2007); Ranger
Ins. Co. v. Pierce Cty., 164 Wash.2d 545, 192 P.3d 886 (2008); Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 7 cmt. i
(2010).
9 E.g., United States v. Stevens, 994 So.2d 1062 (Fla. 2008); Werne
v. Exec. Women’s Golf Ass’n, 158 N.H. 373, 969 A.2d 346 (2009).
10 See, e.g., Gipson v. Kasey, 214 Ariz. 141, 142–43, 150 P.3d 228,
230–31 (2007); John B. v. Sup. Ct., 38 Cal. 4th 1177, 137 P.3d 153, 45 Cal.
Rptr. 3d 316 (2006); Jupin v. Kask, 447 Mass. 141, 147, 849 N.E.2d 829,
835 (2006) (recognizing “a general principle of tort law, every actor has a
duty to exercise reasonable care to avoid physical harm to others”); A.W. v.
Lancaster Cty. Sch. Dist., 250 Neb. 205, 784 N.W.2d 907 (2010); Iglehart v.
Bd. of Cty. Comm’rs of Rogers County, 60 P.3d 497 (Okla. 2002); Giggers v.
Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2008).
11 See W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. Cal.
L. Rev. 671 (2008); W. Jonathan Cardi, Purging Foreseeability, 58 Vand.
L. Rev. 739 (2005); Aaron Twerski, The Cleaver, the Violin, and the
Scalpel: Duty and the Restatement (Third) of Torts, 60 Hastings L.J. 1
(2008) (expressing general agreement with the Restatement). Two
commentators in particular have opposed the Restatement view in a
number of articles, e.g., John C.P. Goldberg & Benjamin C. Zipursky,
Shielding Duty: How Attending to Assumption of Risk, Attractive
Nuisance, and Other “Quaint” Doctrines Can Improve Decisionmaking in
Negligence Cases, 79 S. Cal. L. Rev. 329 (2006), based on their earlier
theory that tort duty is based on relationships. See John C.P. Goldberg &
Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733
(1998).
Harm) § 7 (2010).
13 Id. § 37.
14 Id. §§ 38–44. See Chapter 21 (health care providers).
15 Id. § 7(b) and § 37 cmt. g.
16 See Marshall v. Burger King Corp., 222 Ill. 2d 422, 856 N.E.2d
1048, 305 Ill. Dec. 897 (2006) (“Much confusion over duty stems from
courts’ tendency to attribute a variety of different meanings to the term.”).
17 Alternatively, especially on the issue of contributory negligence,
judges may say that the defendant had a specific duty, such as the duty to
stop at a railroad track.
18 Dilan A. Esper & Gregory C. Keating, Putting “Duty” in Its Place:
A Reply to Professors Goldberg and Zipursky, 41 Loy. L.A. L. Rev. 1225
(2008) (discussing duty as an articulation of a legal rule, not a “retail”
judgment about particular cases).
19 Courts may translate their own talk of specific “no-duty” rules
back into analysis of breach. For example, in Tagle v. Jakob, 97 N.Y.2d
165, 763 N.E.2d 107, 737 N.Y.S.2d 331 (2001), the court expressed its
conclusion as a rule that “Jakob had no duty to warn the tenant of that
hazard.” But in its analysis the court looked to the facts of the case and
concluded that the danger was obvious to the tenant so that “as a matter
of law, Jakob [the landlord] had no reason to expect that the tenant would
not observe the hazard or any conceivable risk associated with it.” That
seems indistinguishable from a conclusion that, as a matter of law,
reasonable people could not find negligence (breach). Likewise, when
working through an analysis that is ostensibly based on “duty” rather than
breach, the court may more or less explicitly recognize that the issue in the
particular case is essentially the negligence (breach) issue. See Happel v.
Wal-Mart Stores, Inc., 199 Ill. 2d 179, 262 Ill. Dec. 815 (2002) (“Wal-Mart
had a duty to warn and that this duty is encompassed within the
pharmacist’s duty of ordinary care.”).
20 E.g., United States v. Stevens, 994 So.2d 1062 (Fla. 2008).
21 See Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995) (“There is
but one standard of care to be applied to negligence actions involving
dangerous instrumentalities in this Commonwealth. This standard of care
is ‘reasonable care.’ ”).
22 Dilan A. Esper & Gregory C. Keating, Putting “Duty” in Its Place:
A Reply to Professors Goldberg and Zipursky, 41 Loy. L.A. L. Rev. 1225
(2008) (discussing duty as an articulation of a legal rule, not a “retail”
judgment about particular cases); Mark P. Gergen, The Jury’s Role in
Deciding Normative Issues in The American Common Law, 68 Fordham L.
Rev. 407, 431–39 (1999); Restatement Third of Torts (Liability for Physical
and Emotional Harm) § 7 cmt. a (2010).
23 See Stephen D. Sugarman, Assumption of Risk, 31 Val. U. L. Rev.
833, 843 (1997) (a clear and lively explanation of the difference between
no-duty and no-breach analyses).
24 See Dilan A. Esper & Gregory C. Keating, Abusing “Duty,” 79 S.
Cal. L. Rev. 265 (2006).
25 See Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259 (Mo.
Ct. App. 2002) (“If there is a general duty to exercise some type of care to
the plaintiff and the next question one asks is whether the defendant
should or should not have acted in a particular way (or refrained from
acting), the analysis is evaluative based on the facts of the case and this
determination would almost invariably be an issue for the jury.”).
26 Marshall v. Burger King Corp., 222 Ill. 2d 422, 305 Ill. Dec. 897
(2006) (emphasis added).
27 Hesse v. McClintic, 176 P.3d 759 (Colo. 2008).
28 This and other criticisms have also been raised against the use of
many “factors” in determining the existence or non-existence of a duty. See
§ 10.3.
(2006) (specifically accepting this principle); see Gipson v. Kasey, 214 Ariz.
141, 147, 150 P.3d 228, 234 (2007) (Hurwitz, J., concurring).
30 See William J. Appel, Annotation, Liability of Private Landowner
for Vegetation Obscuring View at Highway or Street Intersection, 69
A.L.R.4th 1092 (1990).
31 Coburn v. City of Tucson, 143 Ariz. 50, 691 P.2d 1078 (1984);
Donaca v. Curry Cnty., 303 Or. 30, 734 P.2d 1339 (1987).
32 Donaca v. Curry Cnty., 303 Or. 30, 734 P.2d 1339 (1987).
33 See, e.g., M.A. v. United States, 951 P.2d 851 (Alaska 1998)
(responding to the defendant’s argument that a physician had no duty to
diagnose pregnancy accurately: “The existence of a duty turns not on the
particularized facts of a given case, but rather on the basic nature of the
relationship between the parties …”); Martinez v. Woodmar IV Condo.
Homeowners Ass’n, 189 Ariz. 206, 941 P.2d 218 (1997) (“[W]e disapprove
of attempts to equate the concepts of duty with specific details of
conduct.”); Marshall v. Burger King Corp., 222 Ill. 2d 422, 305 Ill. Dec. 897
(2006) (rejecting defendant’s argument that defendant had no duty to erect
posts protecting diners in its restaurant from intrusion by automobiles;
defendant had a duty of care, whether posts were required to satisfy that
duty is an issue about breach of that duty and for the jury).
34 See Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425, 434,
551 P.2d 334, 342, 131 Cal.Rptr. 14, 22, 83 A.L.R.3d 1166 (1976) (“[L]egal
duties are not discoverable facts of nature, but merely conclusory
expressions that, in cases of a particular type, liability should be imposed
for damage done.”); Marshall v. Burger King Corp., 222 Ill. 2d 422, 305 Ill.
Dec. 897 (2006).
35 Prosser & Keeton on Torts § 54, at 358 (5th ed. 1984).
36 Casebolt v. Cowan, 829 P.2d 352, 356 (Colo. 1992) (quoting).
37 E.g., Remy v. MacDonald, 440 Mass. 675, 677, 801 N.E.2d 260,
262 (2004) (“Whether a duty exists is a question of common law, to be
determined by ‘reference to existing social values and customs and
appropriate social policy.’ ”).
(2006) (recognizing that duty is a policy issue and that policies are
identified through relationship of the parties, foreseeability, and costs of
imposing a duty). See John C.P. Goldberg & Benjamin C. Zipursky, The
Moral of McPherson, 146 U. Pa. L. Rev. 1733 (1998) (emphasizing
relationships of the parties, regarding that as distinct from policy).
39 Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 379 P.2d
513, 29 Cal.Rptr. 33 (1963), overruled in Dillon v. Legg, 68 Cal. 2d 728,
441 P.2d 912, 69 Cal. Rptr. 72 (1968), on its precise holding but not on its
methodology. Dillon itself has been modified on its substantive point,
without affecting the Amaya factors. Most of the Amaya factors were
derived from Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d
1358 (1958), not a personal injury case. Biakanja in turn derived them
from treatises by Prosser and Harper & James. Perhaps because this
history is cluttered, California courts and some writers sometimes simply
attribute the factors to Rowland v. Christian, 69 Cal. 2d 108, 70 Cal. Rptr.
97, 443 P. 2d 561 (1968). See Ma v. City & Cty. of San Francisco, 95 Cal.
App. 4th 488, 115 Cal. Rptr. 2d 544 (2002). A number of other states have
adopted the California list with little or no revision. See, e.g., Rice v.
Collins Commc’n, Inc., 236 P.3d 1009 (Wyo. 2010). Rowland was itself
modified by West’s Ann.Cal.Civ.Code § 847 in the case of certain felon
trespassers.
40 See, e.g., Marshall v. Burger King Corp., 222 Ill. 2d 422, 305 Ill.
Dec. 897 (2006) (relationship of invitor-invitee established duty of
reasonable care, and while other considerations may affect the existence of
a duty, they did not create an exemption from duty once such a
relationship was established); Griesi v. Atlantic Gen. Hosp. Corp., 360 Md.
1, 756 A.2d 548 (2000) (two major assessments in determining existence of
a duty are “the nature of legal relationship between the parties and the
likely harm that results from a party’s failure to exercise reasonable care
within that relationship”); Lough by Lough v. Rolla Women’s Clinic, Inc.,
866 S.W.2d 851 (Mo. 1993); Fu v. State, 263 Neb. 848, 643 N.W.2d 659
(2002) (reciting Nebraska’s list, similar to California’s, but including
relationship of parties as the second factor). The existence of a relationship
between defendant and plaintiff is usually one of the key grounds for
imposing a duty of reasonable care, but the absence of a relationship is
usually not a ground for ruling out a duty of care in ordinary physical
harm cases. For example, one driving a motor vehicle owes a duty of care
to strangers on the road. However, courts occasionally reject a duty of care
even in active negligence cases in part on the ground that there is no
relationship between the parties. See Doe v. Pharmacia & Upjohn Co.,
Inc., 388 Md. 407, 879 A.2d 1088 (2005).
41 See Richard Epstein, The Path to the T.J. Hooper: The Theory and
History of Custom in the Law of Tort, 21 J. Leg. Studies 1 (1992)
(especially helpful on the question of who is to be bound by a custom).
42 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96
N.Y.2d 280, 288, 750 N.E.2d 1097, 1101, 727 N.Y.S.2d 49, 53 (2001) (“the
reasonable expectations of parties and society generally, the proliferation
of claims, the likelihood of unlimited or insurer-like liability,
disproportionate risk and reparation allocation, and public policies
affecting the expansion or limitation of new channels of liability”).
43 See Cleveland v. Rotman, 297 F.3d 569 (7th Cir. 2002)
(“foreseeability, its likelihood, the magnitude of the burden of guarding
against it, and the potential consequences of placing that burden on
[defendant]”); Stephenson v. Universal Metrics, Inc., 251 Wis.2d 171, 641
N.W.2d 158 (2002) (whether “(1) the injury is too remote from the
negligence; (2) the injury is too wholly out of proportion to the tortfeasor’s
culpability; (3) in retrospect it appears too highly extraordinary that the
negligence should have brought about the harm; (4) allowing recovery
would place too unreasonable a burden upon the tortfeasor; (5) allowing
recovery would be too likely to open the way to fraudulent claims; or (6)
allowing recovery would have no sensible or just stopping point”).
44 See, e.g., Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639, 730 N.E.2d
949, 709 N.Y.S.2d 151 (2000).
45 See Stephenson v. Universal Metrics, Inc., 251 Wis.2d 171, 641
N.W.2d 158 (2002) (Abrahamson, C.J., dissenting) (“I apply the same six
public policy considerations to the facts of the present case and conclude
that none of them points to relieving Kreuser of liability in this case.”).
46 See W. Jonathan Cardi, A Pluralistic Analysis of the
Therapist/Physician Duty to Warn Third Parties, 44 Wake Forest L. Rev.
877 (2009) (no hierarchy of value and few cases give empirical data).
47 Id. at 886 (“The typical opinion lists, or at best sketches, the
relevant considerations and then simply announces a conclusion.”).
48 E.g., Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn.
2008). However, the use of factors to establish duty rather than to reject it,
as in Satterfield, does not invade the jury’s province because the result is
to leave the breach issue fully to the jury.
49 Ma v. City & Cty. of San Francisco, 95 Cal. App. 4th 488, 506, 115
Cal. Rptr. 2d 544, 557 (2002).
Harm) § 7(a) (2010).
51 Id. § 7 cmt. j.
52 Id. § 7(b).
53 Id. § 7 cmt. c. It may be that the absence of public agreement on
social norms is really more of an explanation than a conflict. At the time of
the early seat belt cases, the public was quite divided about the seat belt
requirement. The same may be true with social host liability for serving to
drunken guests who will drive. The absence of general social agreement or
at least acceptance suggests that juries would be likely to obtain diverse
results—not depending on factual difference in the cases, but rather upon
the accidental dominance of one norm over the other in particular juries.
54 Id. § 7 cmt. d.
55 Id. § 7 cmt. e.
56 Id. § 7 cmt. f.
57 Id. § 7 cmt. g.
58 See W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. Cal.
L. Rev. 671, 678 (2008); Aaron Twerski, The Cleaver, the Violin, and the
Scalpel: Duty and the Restatement (Third) of Torts, 60 Hastings L.J. 1,
22–23 (2008); see also Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228 (2007).
59 John C.P. Goldberg & Benjamin C. Zipursky, Shielding Duty: How
Attending to Assumption of Risk, Attractive Nuisance, and Other “Quaint”
Doctrines Can Improve Decisionmaking in Negligence Cases, 79 S. Cal. L.
Rev. 329 (2006).
60 Mark A. Geistfeld, Social Value as a Policy Based Limitation of
the Ordinary Duty to Exercise Reasonable Care, 44 Wake Forest L. Rev.
899 (2009).
61 Thus the California Supreme Court flatly announced:
“Foreseeability, when analyzed to determine the existence or scope of a
duty, is a question of law to be decided by the court.” Ann M. v. Pacific
Plaza Shopping Ctr., 6 Cal. 4th 666, 678, 25 Cal. Rptr. 2d 137, 145, 863
P.2d 207, 215 (1993), overruled on other grounds, Reid v. Google, Inc., 50
Cal. 4th 512, 522, 235 P.3d 988, 995 (2010). Some other courts agree. See
Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829 (2006).
Harm) § 7 cmt. j (2010).
63 W. Jonathan Cardi, Purging Foreseeability, 58 Vand. L. Rev. 739
(2005).
64 See Staples v. CBL & Assocs., Inc., 15 S.W.3d 83 (Tenn. 2000)
(Holder, J., concurring).
65 Gipson v. Kasey, 214 Ariz. 141, 144, 150 P.3d 228, 231 (2007)
(“Whether an injury to a particular plaintiff was foreseeable by a
particular defendant necessarily involves an inquiry into the specific facts
of an individual case…. The jury’s fact-finding role could be undermined if
courts assess foreseeability in determining the existence of duty as a
threshold legal issue.”); Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa
2009); A.W. v. Lancaster Cty. Sch. Dist., 250 Neb. 205, 784 N.W.2d 907
(2010); Behrendt v. Gulf Underwriters Ins., 318 Wis.2d 622, 768 N.W.2d
568 (2009).
Emotional Harm) § 7 cmt. j (2010) (policies for exempting actors from the
usual duty of reasonable care should be explained without “obscuring
references to foreseeability”).
67 Some courts have said that foreseeability in the duty context is
distinct from foreseeability in the context of breach or scope of liability, in
that it is a more generalized inquiry on the duty issue. See, e.g., Mirjavadi
v. Vakilzadeh, 310 Conn. 176, 74 A.3d 1278 (2013) (in the duty context,
foreseeability is about whether an ordinary person in defendant’s position
“would anticipate that harm of the general nature of that suffered was
likely to result,” whereas foreseeability in the scope of liability
determination is more specific); Whitt v. Silverman, 788 So.2d 210 (Fla.
2001) (distinguishing duty question based upon “general” foreseeability
from breach and proximate cause questions, which turn on specific facts of
the case); Robinson v. Vivirito, 217 N.J. 199, 86 A.3d 119 (2014)
(“Foreseeability as a determinant of a duty to exercise care to another is
distinguishable … from foreseeability as a determinant of whether a
breach of duty proximately caused an injury.”).
68 See, e.g., Clohesy v. Food Circus Supermarkets, Inc. 149 N.J. 496,
694 A.2d 1017 (1997); Stahlecker v. Ford Motor Co., 266 Neb. 601, 667
N.W.2d 244 (2003).
69 See W. Jonathan Cardi, Purging Foreseeability, 58 Vand. L. Rev.
739, 790–94 (2005).
Harm) § 7 (2010)
71 See § 10.1.
72 E.g., Fox v. City & Cty. of San Francisco, 47 Cal. App. 3d 164, 120
Cal. Rptr. 779 (1975) (“[T]he standard of care is always the same—
ordinary care under the circumstances”); Stewart v. Motts, 539 Pa. 596,
654 A.2d 535 (1995) (“[T]here is but one standard of care to be applied to
negligence actions involving dangerous instrumentalities in this
Commonwealth. This standard of care is ‘reasonable care.’ ”).
73 See §§ 10.7 to 10.16.
74 David G. Owen, Expectations in Tort, 43 Ariz. St. L.J. 1287 (2011).
75 Andersen v. Two Dot Ranch, Inc., 49 P.3d 1011 (Wyo. 2002); see
Restatement Third of Torts (Liability for Physical and Emotional Harm) §
7 (2010).
76 See Chapter 21.
77 Lugtu v. Cal. Highway Patrol, 26 Cal.4th 703, 110 Cal.Rptr.2d
528, 28 P.3d 249 (2001) (“Under general negligence principles, of course, a
person ordinarily is obligated to exercise due care in his or her own actions
so as not to create an unreasonable risk of injury to others.”). Until quite
recently, this standard was expressed as the standard of the reasonable
man. With the effort to use gender-neutral phrases, that statement of the
standard is in the process of being abandoned. In some cases, gender
might matter in assessing foreseeable risks and where it does, it may (or
may not) be considered as part of the circumstances based on policy
considerations.
78 E.g., Mansfield v. Circle K. Corp., 877 P.2d 1130 (Okla. 1994)
(“[T]he standard of conduct is that of a reasonably prudent person under
the same or similar circumstances.”); Gossett v. Jackson, 249 Va. 549, 457
S.E.2d 97 (1995) (negligence is “the failure to exercise ‘that degree of care
which an ordinarily prudent person would exercise under the same or
similar circumstances to avoid injury to another’ ”).
79 Mobile Gas Serv. Corp. v. Robinson, 20 So.3d 770 (Ala. 2009);
Mirjavadi v. Vakilzadeh, 74 A.3d 1278 (Conn. 2013) (foreseeability in the
duty context is about whether an ordinary person in the position of the
defendant would anticipate harm “of a general nature”). See § 12.2.
80 See §§ 12.3 & 12.4.
81 See § 16.2.
82 S.K. Whitty & Co. v. Laurence L. Lambert & Assocs., 576 So. 2d
599 (La. Ct. App. 1991) (engineer); Butcher v. Gay, 29 Cal. App. 4th 388,
34 Cal. Rptr. 2d 771 (1994) (dog owner); Fu v. State, 263 Neb. 848, 643
N.W.2d 659 (2002) (“reasonably prudent graduate student with [plaintiff’s]
level of education and experience”); Greenberg v. Giddings, 127 Vt. 242,
246 A.2d 832 (1968) (plumber); Pryal v. Mardesich, 51 Wash.2d 663, 321
P.2d 269 (1958) (captain); cf. Cerny v. Cedar Bluffs Junior/Senior Pub.
Sch., 262 Neb. 66, 628 N.W.2d 697 (2001) (standard for high school sports
coach holding certificate was that of a reasonable person holding such a
certificate), on appeal after remand, 267 Neb. 958, 679 N.W.2d 198 (2004).
Similarly, the reasonable care standard in employment is usually
expressed by saying that an employer generally owes employees and
contractors a reasonably safe place to work. E.g., Blair v. Campbell, 924
S.W.2d 75 (Tenn. 1996).
83 See Chapter 21.
84 United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992);
Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995); Furman v. Rural Elec.
Co., 869 P.2d 136 (Wyo. 1994); Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 3 cmt. A (2010). “Ordinary” care is not a
reference to the statistical occurrence but to a value judgment. See
Clarence Morris, Custom and Negligence, 42 Colum. L. Rev. 1147, 1157
(1942). That point can be logically verified by noting that custom (the
ordinary practice) is not the standard of care. See §§ 12.6 to 12.9.
85 Some judges have charged juries in some variation on the
language of Baron Alderson in Blyth v. Birmingham Waterworks Co., 11
Ex. 781, 156 Eng.Rep. 1047 (1856): “Negligence is the omission to do
something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.” Frequently
this kind of language will be combined with both the reasonable person
and due care or ordinary care language in a single instruction. E.g., Caliri
v. State Dep’t of Transp., 136 N.H. 606, 620 A.2d 1028 (1993) (quoting
New Hampshire’s standard negligence instruction).
86 Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 262 Neb. 66, 628
N.W.2d 697 (2001), on appeal after remand, 267 Neb. 958, 679 N.W.2d 198
(2004).
87 See Chapter 9.
88 See, e.g., Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788
N.W.2d 386 (Iowa 2010) (because reasonable minds could disagree with
respect to factual questions, issue of whether basketball coach should have
foreseen that basketball player would strike opposing team player should
be left to jury decision); Restatement Third of Torts (Liability for Physical
and Emotional Harm) § 3 (2010).
89 Vazquez-Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43
(1st Cir. 2007); Boyd v. Moore, 184 Ohio App.3d 16, 919 N.E.2d 283 (2009).
90 Danger, magnitude of the potential harm and the probability of
that harm are key factors in determining reasonable care. These are
considered in Chapter 12.
91 Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080
(1984) (“[T]he duty remains constant, while the conduct necessary to fulfill
it varies with the circumstances”); Sansonni v. Jefferson Par. Sch. Bd., 344
So. 2d 42 (La. Ct. App. 1977); Stewart v. Motts, 539 Pa. 596, 654 A.2d 535
(1995); Restatement Second of Torts § 298 cmt. b (1965).
92 Purtle v. Shelton, 251 Ark. 519, 474 S.W.2d 123, 47 A.L.R.3d 609
(1971); Tucker v. Lombardo, 47 Cal. 2d 457, 303 P.2d 1041 (1956); Mikula
v. Duliba, 94 A.D.2d 503, 464 N.Y.S.2d 910 (1983).
93 Doe v. Andujar, 297 Ga.App. 696, 678 S.E.2d 163 (2009) (care
commensurate with the reasonably foreseeable risk of harm); Anderson v.
Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994); Stewart v. Motts, 539
Pa. 596, 654 A.2d 535 (1995).
94 Imperial Distrib. Servs., Inc. v. Forrest, 741 P.2d 1251 (Colo.
1987); United States v. Stevens, 994 So. 2d 1062 (Fla. 2008) (lab handling
anthrax).
95 Schultz v. Consumers Power Co., 443 Mich. 445, 506 N.W.2d 175
(1993).
96 Thomas v. Newman, 262 Ark. 42, 553 S.W.2d 459 (1977); Finch v.
Christensen, 84 S.D. 420, 172 N.W.2d 571 (1969); cf. Aycock v. Wilmington
& W. R. Co., 51 N.C. 231 (1858) (cattle on or near railroad track, engineer
should reduce speed and prepare for an emergency stop).
97 Moore v. Burlington N. R.R., 41 P.3d 1029 (Okla. Civ. App. 2001).
98 DeRobertis ex rel. DeRobertis v. Randazzo, 94 N.J. 144, 462 A.2d
1260 (1983).
99 Johnson ex rel. Johnson v. Young Men’s Christian Ass’n of Great
Falls, 201 Mont. 36, 651 P.2d 1245 (1982).
100 Chavez v. Cedar Fair, LP, 450 S.W.3d 291, 294 (Mo. 2014), as
modified on denial of reh’g (Dec. 23, 2014) (while the facts underlying each
situation “may not alter the legal standard of care required to avoid an
accident,” the underlying facts “often multiply the precautions that must
be observed to comply with the standard”).
101 See Jones v. Brookshire Grocery Co., 847 So.2d 43 (La. Ct. App.
2003) (“[T]he degree of vigilance must be commensurate with the risk
involved, as determined by the overall volume of business, the time of day,
the section of the store and other relevant considerations”).
102 Thus in Hopkins v. Miss. Valley Gas Co., 866 So.2d 514 (Miss. Ct.
App. 2004), a gas company reconnecting the plaintiff’s hot water heater
removed a container of gasoline near the heater and warned the plaintiff
against storing it in the same room. This was sufficient care.
103 E.g., Lee v. Hartwig, 848 S.W.2d 496 (Mo. Ct. App. 1992)
(firearms); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984)
(propane gas); Valiant Ins. v. City of LaFayette, 574 So.2d 505 (La. Ct.
App. 1991) (electricity); Wood v. Groh, 269 Kan. 420, 7 P.3d 1163 (2000)
(firearm; instruction on higher care required); Kimberlin v. PM Transport,
563 S.E.2d 665 (Va. 2002) (regulation required truck drivers to use
“extreme caution” in fog and where traction is diminished, treated as
creating an “expanded duty”); cf. J. D. Cousins & Sons, Inc. v. Hartford
Steam Boiler Inspection & Ins., 341 F.3d 149 (2d Cir. 2003) (saying that
the standard of care increases as the risk increases); United States v.
Stevens, 994 So.2d 1062 (Fla. 2008) (“[T]he greater the risk of harm to
others that is created by a person’s chosen activity, the greater the burden
or duty to avoid injury to others becomes.”).
104 See Tucker v. Lombardo, 47 Cal. 2d 457, 303 P.2d 1041 (1956);
Mikula v. Duliba, 94 A.D.2d 503, 464 N.Y.S.2d 910 (1983).
105 E.g., Adams v. N. Ill. Gas Co., 211 Ill. 2d 32, 809 N.E.2d 1248,
1258, 284 Ill. Dec. 302, 312 (2004); First Assembly of God, Inc. v. Tex.
Utils. Elec. Co., 52 S.W.3d 482 (Tex. App. 2001) (“[A] public utility has a
duty to exercise ordinary and reasonable care, but the degree of care
required must be commensurate with the danger. This ‘commensurate
with the danger’ standard does not impose a higher duty of care; rather, it
more fully defines what is ordinary care under the facts presented.”).
106 Stewart v. Motts, 539 Pa. 596, 605, 654 A.2d 535, 539 (1995).
107 See Henson v. Klein, 319 S.W.3d 413 (Ky. 2010); Scott ex rel. Scott
v. Iverson, 120 Or. App. 538, 853 P.2d 302 (1992).
108 Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Regenstreif v.
Phelps, 142 S.W.3d 1 (Ky. 2004); Kreidt v. Burlington N. R.R., 615 N.W.2d
153 (N.D. 2000) (“The sudden emergency doctrine is not so much a
doctrine as an illustration of how negligence law is applied in a specific
situation.”); Restatement Second of Torts § 296(1) (1965).
Harm) § 9 cmt. b (2010), suggests that emergency be defined functionally
—as an event that prevents reasonable persons from exercising the good
judgment they ordinarily exercise.
110 See, e.g., Hagenow v. Schmidt, 842 N.W.2d 661, 673 (Iowa 2014)
(“Unlike the doctrine of legal excuse—which exonerates a party from
liability for negligence per se—the sudden emergency doctrine is merely
an expression of the reasonably prudent person standard of care.”). See
also Regenstreif v. Phelps, 142 S.W.3d 1 (Ky. 2004); Caristo v. Sanzone, 96
N.Y.2d 172, 750 N.E.2d 36, 726 N.Y.S.2d 334 (2001); Restatement Third of
Torts (Liability for Physical and Emotional Harm) § 9 (2010).
111 Hesse v. McClintic, 176 P.3d 759 (Colo. 2008); White v. Taylor
Distrib. Co., 482 Mich. 136, 753 N.W.2d 591 (2008); Maglioli v. J.P.
Noonan Transp., Inc., 869 A.2d 71 (R.I. 2005).
112 Vahdat v. Holland, 274 Va. 417, 424, 649 S.E.2d 691, 695 (2007).
113 Potochnick v. Perry, 861 A.2d 277 (Pa. Super. Ct. 2004)
(instruction told jury that burden of proof of emergency was on the
defendant, but it does not appear that defendant objected to the
instruction on that ground). In Willis v. Westerfield, 839 N.E.2d 1179 (Ind.
2006), the court emphasized that the sudden emergency doctrine was
merely a recognition that “emergency is … one of the circumstances to be
considered in determining whether the actor’s conduct was reasonable
under all of the circumstances,” and consequently that it was not an
affirmative defense that the defendant was required to plead. At the same
time, however, the court said that a party asserting the sudden emergency
doctrine “bears the burden of proof.”
114 See, e.g., Hargrove v. McGinley, 766 A.2d 587 (Me. 2001)
(unchallenged assertion that one confronted with an emergency “is not to
be held to the same standard of conduct normally applied to one who is in
no such situation”).
115 See Totsky v. Riteway Bus Serv., Inc., 233 Wis.2d 371, 607 N.W.2d
637 (2000).
116 See Moran v. Atha Trucking, 540 S.E.2d 903 (W. Va. 1997).
117 Aviation: Bolick v. Sunbird Airlines, 96 N.C. App. 443, 386 S.E.2d
76 (1989) aff’d per curiam, 327 N.C. 464, 396 S.E.2d 323 (1990); Medical
needs: Doe v. State, 588 N.Y.S.2d 698 (Ct. Cl. 1992).
118 Wilson v. Sibert, 535 P.2d 1034 (Alaska 1975); Thomson v.
Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995).
119 E.g., Regenstreif v. Phelps, 142 S.W.3d 1 (Ky. 2004); Posas v.
Horton, 228 P.3d 457 (Nev. 2010); Sullivan v. Fairmont Homes, Inc., 543
N.E.2d 1130 (Ind. Ct. App. 1989).
120 Hagenow v. Schmidt, 842 N.W.2d 661, 673 (Iowa 2014).
121 See Petefish ex rel. v. Dawe, 137 Ariz. 570, 672 P.2d 914 (1983);
9 (2010).
122 Howell v. Cahoon, 236 Va. 3, 372 S.E.2d 363 (1988); Restatement
Second of Torts § 296(2) (1965).
123 E.g., Posas v. Horton, 228 P.3d 457 (Nev. 2010); Brown v. Spokane
Cty. Fire Prot. Dist. No. 1, 100 Wash.2d 188, 668 P.2d 571 (1983).
9 cmt. d (2010).
124 Caristo v. Sanzone, 96 N.Y.2d 172, 750 N.E.2d 36, 726 N.Y.S.2d
334 (2001); Daly v. McFarland, 812 N.W.2d 113 (Minn. 2012) (snowdrift
was “a normal hazard of snowmobiling,” and therefore could not create an
“emergency situation”); Lifson v. City of Syracuse, 17 N.Y.3d 492, 934
N.Y.S.2d 38, 958 N.E.2d 72 (2011) (sun glare that temporarily blinded
motorist was not a “sudden and unexpected circumstance,” thus the giving
of an emergency instruction was error); Herr v. Wheeler, 634 S.E.2d 317
(Va. 2006) (in rainstorm sheets of water that could lead to hydroplaning
are foreseeable, hence no emergency).
125 E.g., Beyer v. Todd, 601 N.W.2d 35 (Iowa 1999); Posas v. Horton,
228 P.3d 457 (Nev. 2010) (driver who was following too closely rear-ended
the car in front of her when it stopped suddenly to avoid hitting a
jaywalking woman pushing a stroller); Chodorov v. Eley, 239 Va. 528, 391
S.E.2d 68 (1990).
126 Cf. Weiss v. Bal, 501 N.W.2d 478 (Iowa 1993) (to one driving
through school parking lot after basketball game, the appearance of
pedestrians crossing the traveled way to reach their cars was not
uncommon and not an emergency).
127 Mertsaris v. 73rd Corp., 105 A.D.2d 67, 482 N.Y.S.2d 792 (1984);
Olinger v. Univ. Med. Ctr., 269 S.W.3d 560 (Tenn. Ct. App. 2008) (“because
of a physician’s training and background, the sudden emergency doctrine
has a limited application in medical malpractice cases;” but the doctrine
applies when the medical events present a sudden difficulty which the
physician could not have anticipated and for which physicians are not
trained).
128 Bedor v. Johnson, 202 P.3d 924 (Colo. 2013) (reviewing all of the
arguments against emergency instructions, and abolishing their use; “the
instruction’s diminished utility in light of the comparative negligence
statute is greatly outweighed by its potential to mislead the jury”).
129 Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202 (Alaska
1996); Wiles v. Webb, 329 Ark. 108, 946 S.W.2d 685 (1997); Knapp v.
Stanford, 392 So.2d 196 (Miss. 1980); Simonson v. White, 220 Mont. 14,
713 P.2d 983 (1986), Bjorndal v. Weitman, 344 Or. 470, 480–81, 184 P.3d
1115, 1121 (2008) (“at least as used in vehicle accident cases … it should
not be given”). See also Fla. Standard Jury Instructions in Civil Cases 4.8
(Comment); Ill. Pattern Jury Instructions (Civ.3d) 12.02.; Mo. Approved
Instructions (MAI) 1.04 (“No ‘sudden emergency’ instructions may be
given.”).
130 Butigan v. Yellow Cab Co. of Cal., 49 Cal.2d 652, 320 P.2d 500, 65
A.L.R.2d 1 (1958); Tolbert v. Duckworth, 262 Ga. 622, 423 S.E.2d 229, 21
A.L.R.5th 852 (1992); Fry v. Carter, 375 Md. 341, 825 A.2d 1042 (2003);
Hancock-Underwood v. Knight, 277 Va. 127, 670 S.E.2d 720 (2009).
131 Kennelly v. Burgess, 337 Md. 562, 654 A.2d 1335 (1995). In
medical malpractice cases, closely analogous instructions are to the effect
that the doctor is not liable for an honest mistake or that he is not a
guarantor or insurer of good results. Some courts have rejected such
instructions, as in, e.g., Riggins v. Mauriello, D.O., 603 A.2d 827 (Del.
1992); Nestorowich v. Ricotta, 767 N.E.2d 125, 740 N.Y.S.2d 668 (2002);
Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2001); but
others maintain them, e.g., Nowatske v. Osterloh, 198 Wis.2d 419, 543
N.W.2d 265 (1996), modified as to the test of harmless error, Nommensen
v. American Cont’l Ins., 246 Wis.3d 132, 629 N.W.2d 301 (2001).
132 Myhaver v. Knutson, 189 Ariz. 286, 942 P.2d 445 (1997)
(emergency; good review of authorities); Vahdat v. Holland, 274 Va. 417,
649 S.E.2d 691 (2007) (“Whether the circuit court erred by giving any jury
instruction on the sudden emergency doctrine is not before us.
Nonetheless, we reiterate, the grant of a sudden emergency instruction is
rarely appropriate.”).
133 Kreidt v. Burlington N. R.R., 615 N.W.2d 153 (N.D. 2000).
134 Torres v. City of Los Angeles, 58 Cal. 2d 35, 372 P.2d 906, 22
Cal.Rptr. 866 (1962); Frazier v. Commonwealth, 845 A.2d 253, 260 (Pa.
Commw. Ct. 2004) (“[W]hile drivers of emergency vehicles are granted
conditional privileges to operate in a manner inconsistent with the Vehicle
Code, they must still drive with due regard under the circumstances.”); cf.
Eklund v. Trost, 151 P.3d 870 (Mont. 2006) (high-speed police chase; in
requiring due care, the emergency vehicle statute created a special duty to
the narrow class of persons who might be in such chases, so the public
duty doctrine did not eliminate the defendant’s duty of care).
135 Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d
988 (1994); Robbins v. City of Wichita, 285 Kan. 455, 172 P.3d 1187 (2007)
(listing many cases on both sides of the issue and considering other issues
under the statutes as well). Louisiana has held that the plaintiff must
prove reckless disregard when the driver of the emergency vehicle has met
all the conditions of the statute (audible signals, responding to emergency
rather than returning and others); but the reasonable care standard
applies when the driver has not met all the statutory conditions. Lenard v.
Dilley, 805 So.2d 175 (La. 2002).
136 E.g., Cal. Bus. & Prof. Code § 1627.5 (2015) (excuses liability
altogether as long as the doctor was in good faith).
137 See § 10.10.
138 See § 10.12.
139 Id.
140 See § 10.9.
141 E.g., Sheehan v. Roche Bros. Supermarkets, 448 Mass. 780, 863
N.E.2d 1276 (2007) (recognizing rule); Hojnowski v. Vans Skate Park, 187
N.J. 323, 901 A.2d 381 (2006) (“care commensurate with the nature of the
risk, foreseeability of injury, and fairness in the circumstances”); Mobile
Gas Serv. Corp. v. Robinson, 20 So.3d 770 (Ala. 2009) (“[C]are
commensurate with the dangers involved … is the same degree of care and
vigilance which persons of skill and prudence observe under like
circumstances.”); see 1 Dobbs, Hayden & Bublick, The Law of Torts § 141
(2d ed. 2011 & Supp.).
2011 & Supp.).
143 See id. § 133.
144 Muse v. Page, 125 Conn. 219, 4 A.2d 329 (1939); Mem’l Hosp. of S.
Bend, Inc. v. Scott, 261 Ind. 27, 300 N.E.2d 50 (1973); Restatement Third
of Torts (Liability for Physical and Emotional Harm) § 11(a) (2010);
Restatement Second of Torts § 283C (1965).
145 Fink v. City of New York, 206 Misc. 79, 132 N.Y.S.2d 172 (Sup. Ct.
1954) (“deaf mute” could not hear siren of approaching fire truck, but used
his eyes in reliance on a stop light; held, he was not guilty of contributory
negligence).
146 Advanced age is not itself a disability, but courts have sometimes
treated age as correlative with or evidence of some kinds of physical
limitation. See Plunkett v. Brooklyn Heights R.R., 129 App. Div. 572, 114
N.Y.S. 276 (1908), aff’d per curiam, 198 N.Y. 568, 92 N.E.2d 1098 (1910);
cf. Stewart v. Gibson Prods. Co. of Natchitoches Par, 300 So.2d 870 (La.
Ct. App. 1974) (court treated age as correlative with frailty).
147 Prosser saw the rule as reflecting the disabled person’s
entitlement “to live in the world.” Prosser & Keeton § 32, p. 176.
148 See Harris v. Uebelhoer, 75 N.Y. 169 (1878) (we are all blind on a
dark night; we are not required to stay at home but to exercise reasonable
care when we go out); Knoxville Optical Supply, Inc. v. Thomas, 1993 WL
574 (Tenn. Ct. App. 1993).
149 Warren A. Seavey, Negligence—Subjective or Objective?, 41 Harv.
L. Rev. 1, 14, n. 14 (1927), poses this example. The blindfold example is
specious in any event; the suggested comparison is not a parallel case
because the blindfolded actor would not be using all the senses reasonably
available, while the unsighted person would be.
150 E.g., Baker v. Joyal, 4 A.D.3d 596, 771 N.Y.S.2d 269 (2004)
(defendant driver rendered unconscious when he was struck by A);
Hancock-Underwood v. Knight, 670 S.E.2d 720 (Va. 2009); Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 11(b) (2010).
151 Thornton v. Lees, 2008 WL 4544408 (E.D. Ky. 2008); Roman v.
Estate of Gobbo, 99 Ohio St.3d 260, 791 N.E.2d 422 (2003) (regarding the
driver whose vehicle crossed the center line and caused collisions as a
result of an unforeseeable heart attack as violating a traffic statute, but
holding that, as an affirmative defense, his violation was excused).
152 See McCartney v. Pawtucket Mut. Ins., 1994 WL 723056 (Conn.
Super. Ct. 1994) (elderly woman, house-bound and in a wheelchair, could
still have arranged for heating oil to prevent frozen pipes).
153 E.g., Mahan v. State, 172 Md. 373, 191 A. 575 (1937) (driver whose
small stature made vision difficult expected to exercise “greater
watchfulness”); Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499 (1963)
(hearing impaired person should have compensated for the impairment by
wearing her hearing aid or alternatively by keeping better lookout).
154 Cf. Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357, 9 A.L.R.2d
1040 (1949) (one entrusting car to man who might not be able to brake it
was negligent, inferentially the driver himself was as well).
155 Bennett v. State, 503 So.2d 1022 (La. Ct. App. 1987) (driver must
turn his head to compensate for poor peripheral vision); Poyner v. Loftus,
694 A.2d 69 (D.C. 1997) (“[I]n the exercise of common prudence one of
defective eyesight must usually as a matter of general knowledge take
more care and employ keener watchfulness in walking upon the streets
and avoiding obstructions than the same person with good eyesight, in
order to reach the standard established by the law for all persons alike,
whether they be weak or strong, sound or deficient.”).
Harm) § 11 cmt. a (2010).
157 E.g., Goodrich v. Blair, 132 Ariz. 459, 646 P.2d 890 (1982) (driver
subject to heart attacks); Lutzkovitz v. Murray, 339 A.2d 64, 93 A.L.R.3d
321 (Del. 1975) (risk of blackout); Storjohn v. Fay, 246 Neb. 454, 519
N.W.2d 521 (1994).
158 N. H. Fish & Game Dep’t v. Bacon, 116 A.3d 1060, 1065 (N.H.
2015) (defendant who had undergone multiple hip surgeries, and had an
artificial hip that had dislocated five times, was negligent under statute
that provided for repayment for rescue operation).
159 Keller v. DeLong, 108 N.H. 212, 231 A.2d 633 (1967); Howle v.
PYA/Monarch, Inc., 288 S.C. 586, 344 S.E.2d 157 (1986).
160 E.g., Tomey v. Dyson, 76 Cal. App. 2d 212, 172 P.2d 739 (1946);
Moore v. Kitsmiller, 201 S.W.3d 147 (Tex. App. 2006); Allen v. Bos. & M.
R.R., 245 Mass. 139, 139 N.E. 511 (1923); § 16.2.
161 See § 4.3.
Harm) § 11(c) (2010); Restatement Second of Torts § 895J (1979).
163 Id.
164 See Breunig v. American Family Ins., 45 Wis.2d 536, 173 N.W.2d
619, 49 A.L.R.3d 179 (1970) (one who is suddenly overcome by a mental
disability without forewarning is to be treated like a person who suffers a
sudden heart attack or seizure, which is to say that such a person need not
comply with some external standard).
165 Williams v. Hays, 157 N.Y. 541, 52 N.E. 589 (1899) (a case difficult
to interpret, however).
166 See, e.g., German Civil Code § 827 (excluding civil responsibility
for one who is unable to exercise free will).
167 Jacob E. McKnite, When Reasonable Care is Unreasonable:
Rethinking the Negligence Liability of Adults with Mental Retardation, 38
Wm. Mitchell L. Rev. 1375 (2012).
168 Vaughan v. Menlove, 3 Bing. (N.C.) 468, 132 Eng. Rep. 490 (C.P.
1837) (rejecting the defendant’s argument that he should not be liable if he
acted honestly and to the best of his own judgment); see Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 12 cmt. b
(2010).
169 Johnson v. Lambotte, 147 Colo. 203, 363 P.2d 165 (1961); Creasy
v. Rusk, 730 N.E.2d 659 (Ind. 2000); Restatement Second of Torts §§ 283B
& 895J (1965).
170 C.T.W. v. B.C.G. & D.T.G., 809 S.W.2d 788 (Tex. App. 1991) (one
with “pedophilic disorder” must nevertheless meet the standards of the
person of ordinary prudence).
2011 & Supp.).
172 See Gregory v. Cott, 59 Cal. 4th 996, 1000, 331 P.3d 179, 181
(2014) (“Alzheimer’s patients are are not liable for injuries to caregivers in
institutional settings. We conclude that the same rule applies to in-home
caregivers.”); Berberian v. Lynn, 179 N.J. 290, 845 A.2d 122 (2004) (“We
hold that a mentally disabled patient, who does not have the capacity to
control his or her conduct, does not owe his or her caregiver a duty of care”
and “the professional caregiver may not recover for the conduct of a
patient when this conduct is, in part, the reason for the caregiver’s role.”).
173 Galindo v. TMT Transp., Inc., 152 Ariz. 434, 733 P.2d 631 (Ct.
App. 1986); Fox v. City & Cty. of San Francisco, 47 Cal.App.3d 164, 120
Cal.Rptr. 779 (1975); Restatement Third of Torts (Liability for Physical
and Emotional Harm) § 3 cmt. b (2010); Restatement Third of Torts
(Apportionment of Liability) § 3 cmt. a (2000).
174 Mochen v. State, 43 A.D.2d 484, 352 N.Y.S.2d 290 (1974); Stacy v.
Jedco Constr., Inc., 119 N.C. App. 115, 457 S.E.2d 875 (1995); Birkner v.
Salt Lake Cty., 771 P.2d 1053 (Utah 1989).
175 Dodson v. S.D. Dep’t of Human Servs., 703 N.W.2d 353, 359 (S.D.
2005) (“If the patient’s capacity for self-care is so diminished by mental
illness that it is lacking … an allocation of fault is not appropriate. In
making the fault comparison, the factfinder should always take into
account the extent of the patient’s diminished mental capacity to care for
his own safety.”).
176 Hofflander v. St. Catherine’s Hosp., Inc., 262 Wis.2d 539, 566, 664
N.W.2d 545, 558 (2003) (“A person who is mentally disabled is held to the
same standard of care as one who has normal mentality” except in some
situations “when a mentally disabled person is under the protective
custody and control of another.”).
177 Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 393 S.E.2d
914 (1990); cf. Cowan v. Doering, 215 N.J. Super. 484, 522 A.2d 444 (1987),
aff’d, 111 N.J. 451, 545 A.2d 159 (1988).
178 Myers v. Cty. of Lake, 30 F.3d 847, 853 (7th Cir. 1994) (“A duty to
prevent someone from acting in a particular way logically cannot be
defeated by the very action sought to be avoided”); Wilson v. Kotzebue, 627
P.2d 623 (Alaska 1981) (intoxication of prisoner); Sandborg v. Blue Earth
Cty., 615 N.W.2d 61 (Minn. 2000).
179 E.g., Stacy v. Jedco Constr., 119 N.C. App. 115, 457 S.E.2d 875
(1995); Higgins v. E. Valley Sch. Dist., 41 Wash. App. 281, 704 P.2d 630
(1985); see Jankee v. Clark Cty., 235 Wis. 2d 700, 746, 612 N.W.2d 297,
315 (2000) (“The subjective standard is well suited for situations in which
a tortfeasor is aware of the plaintiff’s diminished mental capacity and can
take precautions against the disability.”).
180 See Yancey v. Maestri, 155 So. 509 (La. Ct. App. 1934) (under civil
law view, insane person’s “acts are looked upon as inevitable accidents”).
181 See German Civil Code § 827 (excluding civil responsibility for one
who is unable to exercise free will, except where he brought on temporary
disability by use of alcohol or similar means). Not all civil law countries
today follow this view. In Mexico, the Codigo Civil para el Districto
Federal § 1911 provides that the incompetent person is liable unless some
other person such as a guardian is liable; for others, see Torts—Liability
for One’s Own Act § 215, in XI Int. Encyc. Comp. L. (A. Tunc, ed., 1979).
182 See William J. Curran, Tort Liability of the Mentally Ill and
Mentally Deficient, 21 Ohio St. L.J. 52 (1960); Restatement Second of
Torts § 283B (1965).
183 Cf. David E. Seidelson, Reasonable Expectations and Subjective
Standards in Negligence Law: The Minor, The Mentally Impaired, and the
Mentally Incompetent, 50 Geo. Wash. L. Rev. 17 (1981) (if doing one’s best
were the standard, universal immunity would result).
184 In C.T.W. v. B.C.G., 809 S.W.2d 788 (Tex. App. 1991), the
defendant sexually abused his step grandchildren. He sought to defend
against tort liability on the ground that this sexual abuse was the result of
a “pedophilic disorder.” The court rejected the argument that the
defendant should be held only to the standard of “an ordinary prudent
person with the mental illness of pedophilia.”
Harm) § 12 (2010); Restatement Second of Torts § 290 (1965).
186 Dobson v. La. Power & Light Co., 567 So.2d 569 (La. 1990);
Restatement Second of Torts § 289 cmt. e (1965).
187 See Jackson v. Axelrad, 221 S.W.3d 650, 656 (Tex. 2007).
188 See, e.g., Tomlinson v. Wilson & Toomer Fertilizer Co., 165 So.2d
801 (Fla. Dist. Ct. App. 1964); Conner v. Farmers & Merchs. Bank, 243
S.C. 132, 132 S.E.2d 385 (1963). A number of memory cases are analyzed
in Mark F. Grady, Why Are People Negligent? Technology, Non Durable
Precautions, and the Medical Malpractice Explosion, 82 Nw. U. L. Rev.
293 (1988).
Harm) § 12 (2010) (ignoring a person’s below average knowledge except in
the case of learners or beginners); Restatement Second of Torts § 290
(1965).
190 See Dorit Rubinstein Reiss, Compensating the Victims of Failure
to Vaccinate: What are the Options?, 23 Cornell J.L. & Pub. Pol’y 595
(2014) (discussing potential tort liability of parents who fail to vaccinate
their children when their child is the cause of outbreak to students who
did vaccinate).
191 Blakes v. Blakes, 517 So.2d 444 (La. Ct. App. 1987).
192 LePage v. Horne, 262 Conn. 116, 809 A.2d 505 (2002) (requiring
expert testimony rather than letting jury say what knowledge reasonable
people in the community have).
193 Id. (ordering directed verdict for the defendant daycare center
because plaintiff failed to prove by expert testimony that operator should
have known of risk of death associated with allowing baby to sleep on her
stomach, even though operator admitted she knew of the risks associated
with stomach sleeping).
194 The example is from Warren A. Seavey, Negligence—Subjective or
Objective?, 41 Harv. L. Rev. 1 (1927).
195 See, e.g., Cramer v. Hous. Opportunities Comm’n of Montgomery
Cty., 304 Md. 705, 501 A.2d 35 (1985); Wilson v. City of Eagan, 297
N.W.2d 146, 8 A.L.R.4th 1277 (Minn. 1980).
196 Jackson v. Axelrad, 221 S.W.3d 650 (Tex. 2007).
197 Restatement Second of Torts § 289 (1965) (superior knowledge in
recognizing a risk); id. § 299 cmt. f (superior competence in both
recognizing and dealing with risk); id. § 290 cmt. f (similar).
Harm) § 12 (2010).
199 Krombein v. Gali Serv. Indus., 317 F.Supp.2d 14 (D.D.C. 2004).
200 On medical malpractice and its standard of care generally see §
21.5.
201 Toth v. Comty. Hosp. at Glen Cove, 22 N.Y.2d 255, 239 N.E.2d
368, 292 N.Y.S.2d 440 (1968); Jackson v. Axelrad, 221 S.W.3d 650 (Tex.
2007) (applying the rule to contributory negligence issue where the
plaintiff was a physician).
202 Hill v. Sparks, 546 S.W.2d 473 (Mo. Ct. App. 1976); cf. Dobson v.
La. Power & Light Co., 567 So.2d 569 (La. 1990) (tree trimming); Sandella
v. Dick Corp., 1995 WL 348192 (Conn. Super. Ct. 1995) (actor was
informed of hazard occurring when catatonic polymers and water were
combined and was required to act on that knowledge).
203 Dakter v. Cavallino, 866 N.W.2d 656 (Wisc. 2015).
204 See Sinai v. Polinger Co., 498 A.2d 520 (D.C. 1985).
205 LaVine v. Clear Creek Skiing Corp., 557 F.2d 730 (10th Cir. 1977);
Cervelli v. Graves, 661 P.2d 1032 (Wyo. 1983).
206 Cf. Hill v. Sparks, 546 S.W.2d 473 (Mo. Ct. App. 1976).
207 Fredericks v. Castora, 241 Pa. Super. 211, 360 A.2d 696 (1976);
Cervelli v. Graves, 661 P.2d 1032 (Wyo. 1983); see Sinai v. Polinger Co.,
498 A.2d 520 (D.C. 1985).
N.W.2d 697 (2001), on appeal after remand, 267 Neb. 958, 679 N.W.2d 198
(2004).
209 One who is involuntarily intoxicated, forcibly drugged by another,
for example, is not held to an external standard with respect to physical
conditions or traits. Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979);
12 cmt. c (2010); Restatement Second of Torts § 283C cmt. d (1965).
210 Townsend v. Jones, 183 Kan. 543, 331 P.2d 890 (1958); Remmenga
v. Selk, 150 Neb. 401, 34 N.W.2d 757, 763 (1948).
211 See § 9.1.
212 See Alan H. McCoid, Intoxication and Its Effect upon Civil
Responsibility, 42 Iowa L. Rev. 38 (1956). Thus a decedent who crashed
into the rear of another vehicle and had 0.14 blood alcohol could be found
negligent. See Dagley v. Thompson, 156 S.W.3d 589 (Tex. App. 2003). In
such a case, the act of crashing into another vehicle tends to suggest
negligence, and the intoxication tends to strengthen the inference that the
crash was a result of driving too fast or failing to keep a reasonable
lookout.
213 Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977); Hasson v.
Hale, 555 So.2d 1014 (Miss. 1990); Cook ex rel. Uithoven v. Spinnaker’s of
Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994).
214 See Yost v. Miner, 163 N.W.2d 557 (Iowa 1968).
215 Anderson v. Morgan, 73 Ariz. 344, 241 P.2d 786 (1952); King v.
Allred, 309 N.C. 113, 305 S.E.2d 554 (1983).
216 Yost v. Miner, 163 N.W.2d 557, 561 (Iowa 1968) (“The act of
driving an automobile while intoxicated is a violation of [statute].
However, it is not negligence per se.”); cf. Loevsky v. Carter, 70 Haw. 419,
773 P.2d 1120 (1989) (under Hawaii rule, violation is evidence of
negligence only, not negligence per se).
217 E.g., Stewart v. Manhattan & Bronx Surface Transit Operating
Auth., 875 N.Y.S.2d 26 (App. Div. 2009) (evidence of pedestrian’s
intoxication under the facts warranted jury’s apportion of high percentage
of fault to the pedestrian); cf. Del E. Webb Corp. v. Super. Ct., 151 Ariz.
164, 726 P.2d 580 (1986) (patron’s contributory negligence or assumed risk
available as defense in suit against alcohol provider).
218 See, e.g., Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979);
Ballou v. Sigma Nu Gen. Fraternity, 291 S.C. 140, 352 S.E.2d 488 (1986);
Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934
(Tenn. 1994).
219 See Loeb v. Rasmussen, 822 P.2d 914 (Alaska 1991) (duty to
protect minor from her own drinking); McMahon v. N.Y.C., N.H. & H.R.
Co., 136 Conn. 372, 71 A.2d 557 (1950); cf. Anderson v. American Family
Mut. Ins.., 267 Wis.2d 121, 671 N.W.2d 651 (2003).
220 Mastland, Inc. v. Evans Furniture, Inc., 498 N.W.2d 682 (Iowa
1993); Price v. Kitsap Transit, 125 Wash.2d 456, 886 P.2d 556 (1994). See
Oscar Gray, The Standard of Care for Children Revisited, 45 Mo. L. Rev.
597 (1980); Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 10(b) (2010) (children under five incapable of
negligence). Georgia, by construction of a statute, has immunized all
children under the age of 13 years. Horton v. Hinely, 261 Ga. 863, 413
S.E.2d 199 (1992) (two nine-year-olds poured gasoline on a seven-year-old
and set him afire, no liability).
221 Savage Indus. v. Duke, 598 So.2d 856 (Ala. 1992); Queen Ins. v.
Hammond, 374 Mich. 655, 132 N.W.2d 792 (1965); Steele v. Holiday Inns,
Inc., 626 So.2d 593 (Miss. 1993).
Harm) § 10 (2010); Restatement Second of Torts § 895I (1979).
223 There are occasional lapses in which courts may speak of the
“average” child or the like. See Fire Ins. Exch. v. Diehl, 206 Mich.App. 108,
520 N.W.2d 675 (1994). It is improbable that these casual statements are
intended to alter the usual rule.
224 See, e.g., First Nat’l Bank of Ariz. v. Dupree, 136 Ariz. 296, 665
P.2d 1018 (Ct. App. 1983); Lehmuth v. Long Beach Unified Sch. Dist., 53
Cal.2d 544, 348 P.2d 887, 2 Cal.Rptr. 279 (1960); Restatement Third of
Torts (Liability for Physical and Emotional Harm § 10 (a) (2010);
Restatement Second of Torts § 283A (1965).
225 Frazier ex rel. Frazier v. Norton, 334 N.W.2d 865 (S.D. 1983);
Bauman ex rel. Chapman v. Crawford, 104 Wash.2d 241, 704 P.2d 1181
(1985).
226 Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974).
227 E.g., Lafayette Par. Sch. Bd. v. Cormier ex rel. Cormier, 901 So.2d
1197 (La. Ct. App. 2005) (11-year-old pointing a toy gun); Hudson-Connor
v. Putney, 192 Or. App. 488, 86 P.3d 106 (2004) (child defendant allowing
another child to operate golf cart).
228 See e.g., McGregor v. Marini, 256 So.2d 542 (Fla. Dist. Ct. App.
1972) (third-grade boys playing with matches in empty house caused a
fire, liability potential if capacity is proven); Deliso v. Cangialosi, 117 Misc.
2d 105, 457 N.Y.S.2d 396 (1982) (11-year-old).
229 Choate v. Ind. Harbor Belt R.R., 980 N.E.2d 58, 66 (Ill. 2012) (“a
landowner has no duty to remedy a dangerous condition if it presents
obvious risks that children generally of the plaintiff’s age would be
expected to appreciate and avoid”; 12-year-old should have appreciated
dangers of jumping on a moving train).
230 Boyer v. Johnson, 360 So.2d 1164 (La. 1978).
231 See § 10.16.
232 First Nat’l Bank of Ariz. v. Dupree, 136 Ariz. 296, 665 P.2d 1018
(Ct. App. 1983); Hoyt v. Rosenberg, 80 Cal.App. 2d 500, 182 P.2d 234, 238,
173 A.L.R. 883 (1947).
233 Roberts v. Fisher, 169 Colo. 288, 455 P.2d 871 (1969); King v.
Casad, 122 Ill.App.3d 566, 461 N.E.2d 685 (1984).
234 Neal v. Shiels, Inc., 166 Conn. 3, 347 A.2d 102 (1974) (contributory
negligence issue).
235 Farm Bureau Ins. v. Phillips, 116 Mich.App. 544, 323 N.W.2d 477
(1982).
236 See, e.g., Hudson v. Old Guard Ins., 3 A.3d 246 (Del. 2010) (“[W]e
hold minors to the standard of conduct expected of a reasonable child of
similar age and situation”; “The maturity and capacity of the child, [his]
ability to understand and appreciate the danger, [his] familiarity with the
surroundings, together with the circumstances under which the accident
occurred, must all be taken into consideration”).
237 Lafayette Par. Sch. Bd. v. Cormier ex rel. Cormier, 901 So.2d 1197
(La. Ct. App. 2005) (special education student held only to the standard of
“the reasonably prudent 11-year-old boy who has the same exceptionalities
that Jade possesses”); see Camerlinck v. Thomas, 209 Neb. 843, 312
N.W.2d 260, 27 A.L.R.4th 1 (1981) (stating that mental limitations as well
as special mental powers of a child are taken into account).
238 Dorais v. Paquin, 113 N.H. 187, 304 A.2d 369 (1973).
239 See Dimond v. Kling, 221 N.W.2d 86, 91 (N.D. 1974).
240 Oscar Gray, The Standard of Care for Children Revisited, 45 Mo.
L. Rev. 597, 602 (1980).
241 Dorrin v. Union Elec. Co., 581 S.W.2d 852 (Mo. 1979); Camerlinck
v. Thomas, 209 Neb. 843, 312 N.W.2d 260, 27 A.L.R.4th 1 (1981); Deliso v.
Cangialosi, 117 Misc.2d 105, 457 N.Y.S.2d 396 (1982) (11-year-old playing
Monkey-in-the-Middle and tossing keys, which struck plaintiff’s car,
negligence found).
242 Prosser & Keeton § 32, p. 179.
243 The “normal” statement was made in Charbonneau v. MacRury,
84 N.H. 501, 153 A. 457, 73 A.L.R. 1266 (1931).
244 Prosser & Keeton gave another reason that also suggests an
objective child standard, namely that the community has sufficient
experience to form a judgment about what could be expected of children.
The premise seems correct, but, again, it suggests an objective child
standard.
245 See § 16.1.
246 See § 15.6.
247 Caroline Forell, Reassessing the Negligence Standard of Care for
Minors, 15 N.M. L. Rev. 485, 498 (1985).
248 Id.
Harm) § 10 (2010) (“When children choose to engage in dangerous
activities characteristically engaged in by adults, no account is taken of
their childhood.”).
Harm) § 10 (2010); Mahon v. Heim, 165 Conn. 251, 332 A.2d 69 (1973).
251 Pritchard v. Veterans Cab Co., 63 Cal.2d 727, 408 P.2d 360, 47
Cal.Rptr. 904 (1965); Perricone v. DiBartolo, 14 Ill.App.3d 514, 520, 302
N.E.2d 637 (1973) (gasoline-powered minibike); Ardinger v. Hummell, 982
P.2d 727 (Alaska 1999) (14-year-old allegedly entrusted her mother’s car to
a 15-year-old companion), appeal after new trial, Crosby v. Hummell, 63
P.3d 1022 (Alaska 2003).
252 Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, 97 A.L.R. 2d
866 (1961).
253 Robinson v. Lindsay, 92 Wash.2d 410, 598 P.2d 392 (1979); Ryan
v. Hickson, 55 D.L.R.3d 196 (Ontario H.C. 1974).
254 E.g., Jackson v. McCuiston, 247 Ark. 862, 448 S.W.2d 33 (1969)
(tractor propelled bush hog or stalk cutter); Goodfellow v. Coggburn, 98
Idaho 202, 203–04, 560 P.2d 873 (1977) (tractor).
255 See DePerno v. Hans, 18 Misc.3d 1119(A), 856 N.Y.S.2d 497 (Sup.
Ct. 2007) (noting that court found no case applying the adult standard to
an eight-year-old); Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 10 cmt. g (2010).
256 Purtle v. Shelton, 251 Ark. 519, 474 S.W.2d 123, 47 A.L.R.3d 609
(1971) (deer hunting); Thomas v. Inman, 282 Or. 279, 578 P.2d 399 (1978).
See Caroline Forell, Reassessing the Negligence Standard of Care for
Minors, 15 N.M. L. Rev. 485, 487 (1985). But see Goss v. Allen, 70 N.J.
442, 360 A.2d 388 (1976) (dictum that hunting would normally entail an
adult standard); Huebner ex rel. Lane v. Koelfgren, 519 N.W.2d 488
(Minn. Ct. App. 1994) (14 ½-year-old boy handling a BB gun, adult
standard).
257 Farm Bureau Ins. v. Phillips, 116 Mich.App. 544, 323 N.W.2d 477
(1982); Strehlke v. Camenzind, 111 D.L.R.3d 319 (Q.B.Alberta 1980).
258 Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, 97 A.L.R.2d
866 (1961).
259 Goss v. Allen, 70 N.J. 442, 360 A.2d 388 (1976) (17-year-old
skiing).
260 Strait v. Crary, 173 Wis.2d 377, 496 N.W.2d 634 (Ct. App. 1992)
(16-year-old drinking passenger attempting to climb out the window of a
moving truck fell out and suffered a broken leg; he was entitled to an
instruction on the child standard of care).
Harm) § 10 (c) (2010). See Hudson-Connor v. Putney, 192 Or.App. 488, 86
P.3d 106 (2004) (holding that a minor who allowed another minor to
operate a golf cart would be held only to the child standard of care,
because (1) there was no evidence that adult skills were required and (2)
there was no evidence that golf carts were normally operated only by
adults).
263 ”[O]ne cannot know whether the operator of an approaching
automobile, airplane, or powerboat is a minor or an adult, and usually
cannot protect himself against youthful imprudence even if warned.”
Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, 863, 97 A.L.R. 2d 866
(1961).
264 See David E. Seidelson, Reasonable Expectations and Subjective
Standards in Negligence Law: The Minor, The Mentally Impaired, and the
Mentally Incompetent, 50 Geo. Wash. L. Rev. 17 (1981); Allen Linden,
Canadian Tort Law 132 (5th ed. 1993); Restatement Third of Torts
(Liability for Physical and Emotional Harm) § 10 (c) cmt. f (2010).
265 See § 19.1. There are also a few situations in which strict liability
is imposed, but this is outside the negligence regime. See Chapters 32 &
33.
266 See §§ 20.2 & 20.5.
267 See Chapter 21.
268 See Chapter 22.
269 See § 23.3.
270 See § 23.2.
271 See Chapter 27.
272 See Chapter 28.
273 See Chapter 29.
274 See Chapter 25.
275 Coggs v. Bernard, 2 Ld. Raym. 909, 92 Eng. Rep. 107 (1703)
(addressing the duties of a bailee to care for the bailed goods).
276 E.g., Coachmen Indus. v. Crown Steel Co., 577 N.E.2d 602 (Ind.
Ct. App. 1991) (“Because Coachmen, as bailee, received no benefit from
this arrangement, it was obligated to exercise only slight care in protecting
the material from injury.”).
277 The reason to know concept is described in Restatement Second of
Torts § 12 (1965). The terminology is also used in the Restatement Third
of Agency § 1.04(4) (2006) (“A person has notice of a fact if the person
knows the fact, has reason to know the fact, has received an effective
notification of the fact, or should know the fact to fulfill a duty owed to
another person.”).
Harm) § 18 (2010).
279 E.g., Schovanec v. Archdiocese of Okla. City, 188 P.3d 158 (Okla.
2008). Many cases quote the Restatement Second of Agency § 213 (1957)
on this point.
280 E.g., Laster v. Norfolk S. Ry. Co., 13 So.3d 922 (Ala. 2009) (child
trespasser, landowner must have at least reason to know of child’s likely
trespass and danger); Foss v. Kincade, 766 N.W.2d 317 (Minn. 2009)
(same).
281 John B. v. Super. Ct., 38 Cal.4th 1177, 137 P.3d 153, 45 Cal.Rptr.
3d 316 (2006) (an infected person’s liability for transmitting HIV does not
require that he actually know he has the infection; liability “would extend
at least to those situations where the actor, under the totality of the
circumstances, has reason to know of the infection”); Jones v. Mid-Atlantic
Funding Co., 362 Md. 661, 766 A.2d 617 (2001) (plaintiff-tenant
established that landlord-defendant had reason to know of flaking lead
paint and its danger to children).
282 Thus the Restatement Third drops the “reason to know” test in
favor of the ordinary negligence rule in some instances. See Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 41, Reporters’
Note to Comment c (2010) (“The Second Restatement imposed a duty on
parents and employers to control the conduct of minor children and
employees only if they knew or had reason to know of their ability to
control and knew or had reason to know of the necessity and opportunity
of control. In this [Third] Restatement, those conditions are subsumed
within the analysis of reasonable care; they are not prerequisites for the
existence of a duty.”). See also Elizabeth G. Porter, Tort Liability in the
Age of the Helicopter Parent, 64 Ala. L. Rev. 533 (2013) (advocating, in
general, the Restatement Third reasonable care approach).
283 It is still sometimes used in bailment cases, however. Waterton v.
Linden Motor Inc., 11 Misc.3d 836, 810 N.Y.S.2d 319 (2006) (slight care).
284 Davis v. Landis Outboard Motor Co., 179 Neb. 391, 138 N.W.2d
474 (1965).
285 See Ola v. YMCA of Southhampton Rds., Inc., 270 Va. 550, 621
S.E.2d 70 (2005). This protection for charities is no longer so common. See
§ 23.3.
286 See Costa v. Cmty. Emergency Med. Servs., Inc., 475 Mich. 403,
716 N.W.2d 236 (2006). Although some government agencies and officers
are subject to liability for gross negligence, in many instances such
defendants are entirely immune. See Chapter 22.
287 Cf. Food Pageant, Inc. v. Consol. Edison Co., Inc., 54 N.Y.2d 167,
429 N.E.2d 738, 445 N.Y.S.2d 60 (1981) (public utility rate schedule
limited liability to gross negligence).
288 See Patrick H. Martin, The BP Spill and the Meaning of “Gross
Negligence or Willful Misconduct,” 71 La. L. Rev. 957 (2011).
289 Davis v. Landis Outboard Motor Co., 179 Neb. 391, 138 N.W.2d
474 (1965).
290 Thus, for example, gross negligence, in its core meaning signifying
extreme fault without a bad state of mind, is not a sufficient basis for an
award of punitive damages, which requires a state of mind as well. Paiz v.
State Farm Fire & Cas. Co., 118 N.M. 203, 880 P.2d 300 (1994).
291 E.g., Franklin Corp. v. Tedford, 18 So.3d 215, 240 (Miss. 2009)
(where “gross negligence … evidences a willful, wanton or reckless
disregard for the safety of others,” a statutory formulation); U-Haul Int’l,
Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012) (interpreting a statute: gross
negligence contains both an objective component—an extreme degree of
risk, meaning a likelihood of the plaintiff’s serious injury—and a
subjective component—defendant’s demonstrated indifference to the
consequences of its acts, in the face of actual knowledge of the risk);
Cowan v. Hospice Support Care, Inc., 268 Va. 482, 603 S.E.2d 916 (2004)
(combining “indifference” state of mind with subjective effect on the
observer, which must be shocking to fair-minded persons).
292 Kimble v. Carey, 691 S.E.2d 790 (Iowa 2010) (in a rescuer case the
question was whether the rescuer was “rash and reckless”).
293 See Cavillo-Silva v. Home Grocery, 19 Cal.4th 714, 968 P.2d 65, 80
Cal.Rptr. 2d 506 (1998), overruled on other grounds, Aguilar v. Atl.
Richfield Co., 25 Cal. 4th 826 (2001); Chapter 20 generally.
294 See Feld v. Borkowski, 790 N.W.2d 72 (Iowa 2010) (if first
baseman who was hit by a bat that flew out of batter’s hands could show
recklessness rather than mere negligence, liability might attach); Angland
v. Mountain Creek Resort, Inc., 213 N.J. 573, 66 A.3d 1252 (2013)
(snowboarders; recklessness standard). See also § 17.8 (participants and
spectators).
295 See e.g., Tackett v. State Farm Fire & Cas. Ins., 653 A.2d 254, 265
(Del. 1995) (“Mere inadvertence, mistake or errors of judgment which
constitute mere negligence will not suffice. It is not enough that a decision
be wrong. It must result from a conscious indifference to the decision’s
foreseeable effect.”). On punitive damages, see §§ 34.4 to 34.7.
296 Delfino v. Griffo, 257 P.3d 917 (N.M. 2010) (social host liability
when provision of drinks was reckless).
297 See § 21.13. There are some differences in the statutory terms and
applications.
298 E.g., Saarinen v. Kerr, 84 N.Y.2d 494, 644 N.E.2d 988, 620
N.Y.S.2d 297 (1994); Estate of Graves v. City of Circleville, 922 N.E.2d 201
(Ohio 2010) (wanton or reckless conduct).
299 See Calloway v. Kinkelaar, 168 Ill.2d 312, 659 N.E.2d 1322 (1995);
cf. Grimm v. Ariz. Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227
(1977) (parole board’s release of dangerous prisoner, gross negligence).
300 See, e.g., Scott v. Villegas, 723 So.2d 642 (Ala. 1998) (quoting and
discussing Alabama’s guest statute, which requires wanton misconduct,
defined to require conscious culpability). Most of these statutes have been
repealed or held unconstitutional, as in Brown v. Merlo, 8 Cal.3d 855, 106
Cal.Rptr. 388, 506 P.2d 212 (1973).
Harm) § 2 cmt. d (2010).
302 See Schick v. Ferolito, 167 N.J. 7, 767 A.2d 962 (2001) (relying on
Prosser & Keeton, “Reckless conduct is an extreme departure from
ordinary care, in a situation in which a high degree of danger is
apparent”).
303 Morris v. Leaf, 534 N.W.2d 388 (Iowa 1995) (“in disregard of a risk
known to or so obvious that he must be taken to have been aware of it, and
so great as to make it highly probable that harm would follow”); Campbell
v. City of Elmira, 84 N.Y.2d 505, 644 N.E.2d 993, 620 N.Y.S.2d 302 (1994)
(harm highly probable coupled with conscious indifference to the outcome).
Emotional Harm) § 2 cmt. d (2010).
305 Id. cmt. a.
306 E.g., Estate of Rae v. Murphy, 956 A.2d 1266 (Del. 2008) (“[f]or a
defendant’s conduct to be found willful or wanton, the conduct must reflect
a ‘conscious indifference’ or ‘I don’t care’ attitude”; negligently failing to
notice a red light is insufficient); Doe v. Ortega-Piron, 213 Ill.2d 19, 820
N.E.2d 418, 289 Ill.Dec. 642 (2004). Some courts use a form of
“indifference” to define “gross negligence,” and thus seem to conflate
recklessness and gross negligence, at least for some purposes. See, e.g.,
Howard v. Chimps, Inc., 251 Or.App. 636, 284 P.3d 1181 (2012) (“To
establish gross negligence, plaintiff needed to show that defendant acted
with reckless disregard of safety or indifference to the probable
consequences of its acts.”).
307 Boyd v. Nat’l R.R. Passenger Corp., 446 Mass. 540, 845 N.E.2d 356
(2006); Restatement Second of Torts § 500 cmt. a (1965).
308 Restatement Third or Torts (Liability for Physical and Emotional
Harm) § 2 cmt. a (2010).
309 See Ziarko v. Soo Line R.R., 161 Ill.2d 267, 641 N.E.2d 402 (1994)
(sometimes more like negligence, sometimes more like intent); Lennon v.
Metro. Life Ins., 504 F.3d 617, 621 (6th Cir. 2008); cf. Doe 1 ex rel. Doe 1 v.
Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 38 (Tenn. 2005)
(dealing with the claim of reckless infliction of emotional distress;
“recklessness contains an awareness component similar to intentional
conduct which is not demanded of negligence”).
Emotional Harm) § 2, Reporters’ Note Comment a (2010).
243
Chapter 11
IMPORTING STATUTORY STANDARDS

OF CARE: NEGLIGENCE PER SE
Analysis
§ 11.3 Negligence Per Se vs. Private Right of Action
§ 11.4 Alternatives to Negligence Per Se: Evidence of Negligence
§ 11.7 Class of Persons Protected Under the Statute
__________

The negligence per se rule. The negligence per se rule holds that
a violation of statute is negligence in itself if the statutory violation
causes the type of harm the statute was intended to avoid,1 to a
person within the class of persons the statute was intended to
protect.2 In the absence of a valid excuse,3 violation of the statute
conclusively shows negligence.4 The Restatement Third echoes this
understanding.5 Violation of statute by a plaintiff equally proves
the plaintiff’s contributory negligence or comparative fault in
appropriate cases.6
Examples of negligence per se statutes. The negligence per se
rule has been applied to a wide variety of statutory violations.
Statutes governing traffic safety are perhaps the most common
statutes for application of the negligence per se rule.7 Violation of a
speed limit typically subjects the violator to a criminal
misdemeanor prosecution, but courts adopt the speed limit as a
tort rule. Many other statutes are adopted by the courts as a
standard of care—for example, statutes requiring swimming pool
owners to have
244
lifeguards,8 businesses to observe fire safety regulations,9

landlords to keep premises in safe condition10 or to provide locks to
protect tenants,11 and building codes that impose safety
standards.12 A statute may require lights on a ship, buildings
constructed to specific requirements, safety devices for protection
of construction workers, or smoke detectors for the protection of
tenants. Violation can be negligence per se.13 Statutes regulating
sales or dispensation of dangerous items like guns,14 alcohol15 or
prescription drugs16 may also sometimes furnish grounds for a
negligence claim by persons injured as a result of the sale. Statutes
regulating economic relations of the parties, such as those
requiring disclosure of specific information, have been held to be
the basis of a negligence per se claim.17 Courts might even choose
to adopt duties set in an internationally recognized instrument
such as the Nuremberg Code as appropriate guides to state tort
law.18
Statutes from outside tort law. The rule of negligence per se is
applied when the statute in question does not prescribe a tort law
effect at all. These statutes prescribe nothing about tort law, not
even by implication, though they may impose criminal liability or
administrative penalties. For that reason, we will refer to these as
“nonprescriptive” statutes. Yet courts regularly adopt
nonprescriptive statutory rules for specific conduct as rules
creating a standard for tort law. In most states, but not all,19
245
the per se rule can apply not only to statutes but also to
violation of some ordinances20 and administrative regulations.21
Relation to the ordinary negligence claim. The plaintiff who
claims that the defendant was negligent per se in violating a safety
statute is not claiming a new species of tort but asserting an
ordinary negligence claim. The negligence per se rule simply
recognizes that negligence is proved by showing the violation of
statute aimed at protecting the plaintiff from the kinds of harms
she suffered. Because the negligence per se claim is a claim of
ordinary negligence, the plaintiff must prove the other elements of
negligence: duty, breach, and factual causation of actual harm that
is within the scope of the risk, and she will lose if she fails to do
so.22
Standard of care vs. duty. The statutes applied in negligence
per se characteristically are used to supply standards of care for
tort law purposes. However, they do not necessarily create a duty
of care on the part of the defendant.
Statutes typically create a standard. Courts typically adopt
specific statutory standards only when the common law itself
imposes a duty to exercise care, or, possibly, when the statute
creates a special relationship that becomes the basis for a common
law duty of care.23 The statute’s usual function, then, is to specify
what particular acts are required to fulfill the common law duty of
care. When the statute imposes a new duty unknown to the
common law, courts may or may not use the statute to recognize a
tort claim.
Illustration; statutory violation as relevant to duty but not
dispositive. The Restatement Third makes clear that violation of
statute is “relevant to a duty analysis, even though the violation
does not signify duty per se.”24 The Restatement Third uses the
example of a state court that has ruled that pharmacists have no
common law duty to warn their customers of medication side
effects. If a state agency then imposes a duty to warn, the court can
take this consideration into account when deciding whether to
adopt a tort duty. However, “the regulation does not require that
the courts now recognize a tort duty.”25
246
Explanation. That is because violation of the statutory standard

might prove negligence, but violation does not prove the other
elements of the case.26 In particular, violation of the statute does
not prove duty, factual causation, or “proximate cause.” As Judge
Posner explained:27
[I]f a statute defines what is due care in some activity, the
violation of the statute either conclusively or …
presumptively establishes that the violator failed to exercise
due care. But the statutory definition does not come into
play unless the tort plaintiff establishes that the defendant
owes a duty of care to the person he injured … because tort
liability depends on the violation of a duty of care to the
person injured by the defendant’s wrongful conduct….
[A]lthough the legislature can and sometimes does create a
duty of care to a new class of injured persons, the mere fact
that a statute defines due care does not in and of itself create
a duty enforceable by tort law.
Other thoughtful discussions make the same point in various turns
of phrase.28
A confusion: negligence per se requires duty and breach. It is
sometimes said that negligence per se establishes duty and
breach.29 However, as explained, the defendant must be under a
duty to use reasonable care; if he is not, violation of the statute
cannot not prove breach of duty,30 though statutes themselves may
sometimes create a duty of care.31 Furthermore, although the
statute provides a standard that frames the breach question, if the
statute was not violated at all, there is no breach.32
§ 11.3 Negligence Per Se vs. Private Right of
Action
Statutes used as per se negligence and those that create private
rights of action. It is important to keep in mind that negligence per
se “presupposes a statute that declares conduct unlawful but is
silent as to civil liability” and “cannot be readily interpreted as
247
impliedly creating a private right of action.”33 Thus in

negligence per se cases, courts, under their authority to develop the
common law, import non-tort statutes to determine the tort law
standards. This differs from simply creating a private tort right of
action under a statute.
Negligence per se: statutes creating criminal sanctions but not
tort rules. Statutes used to create common law tort standards are
typically those that do not to address tort law at all but can
nevertheless have tort law effects. These statutes frequently
impose criminal or administrative sanction upon defendants who
fail to follow a specific safety requirement; but, significantly, these
statutes do not attempt to create a tort cause of action or specify
tort rules. Traffic safety statutes such as those prescribing speed
limits or lights at night are examples.34 Statutes like this make
traffic violations a minor crime but ordinarily say nothing, not
even impliedly, about tort rules. Yet courts may adopt the
statutory speed limit as a good guide to what is reasonable care
under the circumstances in the ordinary common law action. In so
doing, they will often say that violation of the criminal statute is
negligence per se, that is, violation is itself proof of negligence in a
tort case.35 Less commonly, they may say that violation of the
statute is evidence of negligence, but is not conclusive on the issue.
Both versions have in common the idea that the court, under no
compulsion to do so, has voluntarily accepted the statutory
standard for common law tort purposes.
Private rights of action: statutes explicitly or impliedly creating
tort rules or actions. Statutes that create private rights of action
expressly or implicitly address tort law. A statute that addresses
tort law is enforced by the courts according to its express or
implied terms, so long as the statute’s provisions are
constitutional.36 The Federal Employers Liability Act (FELA) can
be viewed in this light. FELA creates a federal claim on behalf of
railroad workers injured on the job. The statute abolishes the
defenses of contributory negligence and assumed risk37 and has
sometimes been interpreted to impose a liberal view of fault and
causation that makes recovery relatively easy.38 Were there no
such statutes, the railroad employees would ordinarily be limited
to state tort law claims for workers’ compensation payments for on
the job injury or would be subject to defenses like contributory
negligence and assumed risk. Although FELA cases are still
negligence cases in the sense that negligence is an issue, some of
the rules of conduct and litigation are different. Many other
statutes are like FELA in providing a new set of
248
rules, even though the case may still fit within the general
scheme of negligence law.39 Even the United States Constitution
itself may implicitly create a tort claim.40
Losing the distinction. Courts are not always rigorous in
distinguishing the two kinds of statutes.41 When the statute
prescribes tort rules, the appropriate judicial response is to simply
follow the commands of the statute, whether they are expressed or
implied. Yet courts may speak of “negligence per se” even when
applying statutes that seem intended to prescribe tort rules.42
Some other courts seem to treat the negligence per se doctrine as
identical with the private cause of action.43 A Wisconsin court
seems to have consciously eliminated the traditional negligence per
se liability by refusing to give the statute any effect in tort law
unless the statute at least impliedly recognizes a private right of
action.44
Maintaining the distinction—judicial freedom. The distinction
between these two kinds of statutes is important. On the one hand,
courts are required to recognize a tort action when the statute
creates the action; they are bound to follow a valid statute. On the
other hand, if a statute provides nothing about tort law one way or
the other, courts are free to either reject the statutory standard for
tort law purposes, or to import the statutory standard into the
common law of torts and to hold that violation of the standard is
either negligence per se or evidence of negligence.
Private rights of action and common law actions. Some statutes
create a tort cause of action and limit the duties imposed, damages
recoverable, or procedures available for enforcement.45 That leaves
open the possibility that the judges might both recognize the
private right of action and create a common law action that does
not impose the same limits. If the statute does not explicitly or
implicitly exclude common law development, it is quite possible
that both a statutory right of action and a common law action will
exist side by side but with different duties, defenses, or
procedures.46
249
Statutes disclaiming tort law effects. Legislatures sometimes

provide that statutory rules or standards are not to be given any
tort law effects but are to be enforced solely by criminal law or
administrative sanctions. The federal and state Occupational
Safety and Health Acts (OSHA) and the accompanying regulations
provide detailed rules for safety conditions in many industries.47
But the statute may be read to say that it is to be enforced by
regulatory agencies, not by tort law.48 Since the legislature is
supreme so long as it acts within the scope of its constitutional
powers, courts are obliged to follow the statutory directive. They
are not free to adopt the safety regulations as tort rules or
standards if the legislature has said that the safety regulations are
not to affect tort law.49
§ 11.4 Alternatives to Negligence Per Se: Evidence
of Negligence
Evidence of negligence rule generally. A number of courts reject
the per se rule and treat violation of statute as, at most, merely
some evidence of negligence50 or as “guidelines for civil liability.”51
This rule permits the jury to conclude that a statute violator
behaved in a reasonable way even though he violated the statute
and in so doing caused harm to persons the statute was intended to
protect, of the type the statute was intended to prevent.
Special cases for the evidence of negligence rule. Other courts
may use the evidence of negligence rule when they believe the per
se rule is too inflexible or too demanding52 or when they believe
that the particular statute is better suited to an evidence rule than
a per se rule.53 When the per se rule is rejected because the harm
suffered is not the kind at which the statute was aimed or the
plaintiff is not within the class to be protected, some courts
nevertheless treat violation of the statute as some evidence of
negligence.54 Similarly, a building code requirement passed after
the defendant’s construction was
250
complete has no technical application to the defendant, but may

nevertheless be good evidence of a feasible safety standard.55
Prima facie or presumption rule. Because certain limited
excuses for violation of statute are recognized, some courts describe
their rule as a presumption of negligence rule56 or a prima facie
negligence rule.57 This may be merely a different way of expressing
the negligence per se rule, since both recognize excuses. However,
taken literally, the presumption of negligence rule can be read as a
strong expression of the evidence rule—the plaintiff is guaranteed
access to the jury because proof of statutory violation makes her
prima facie case. And like the evidence rule, it permits the jury to
find that, in spite of the statutory violation, the defendant was not
negligent.58
Rationales for negligence per se. The history of the negligence
per se rule is not familiar,59 but it appears to have grown up
without careful, explicit consideration,60 and commentators have
offered several explanations for this seemingly strange result. One
argument was that the legislature intended to provide for tort
liability but forgot to do so. Another was that reasonable people
always obey statutes.61 The argument that the legislature
invariably forgets what it was aiming to do, while perhaps
tempting to a satirist of the political process, seems to provide no
basis for a responsible development of rules by the judiciary.
Comity. The Restatement suggests that imposition of the
negligence per se rule may be justified because institutional comity
requires courts to defer to the legislative standard.62 However, it
seems doubtful that judicial respect for the legislature requires
courts to create statutory terms the legislature itself chose not to
include. That is an
251
especially cogent consideration because the legislature might

well have been willing to impose criminal liability, especially for a
limited fine typical in many traffic ordinances, but not unlimited
civil liability. And it might have been willing to impose liability
when guilt is established beyond a reasonable doubt as required in
some criminal cases, but not upon merely a preponderance of
evidence, the standard in civil cases.
Consistency. A better argument may be that in recurring
situations, a flat rule of law that covers every single case is more
just than a varied response by different juries.63 But even this
argument has its weakness: it denies the uniqueness of each set of
facts and the essential character of justice that it is focused on the
individual case, not on patterns.
Judicial borrowing. Contemporary thought recognizes that as
courts create common-law tort law rules, they can adopt and
import rules from statutes if they wish to do so. The statutory rule,
as a Wisconsin Court said, is a “judicial transplant.”64 Colorado
has said that statutes, like industry customs, may be “borrowed” to
show appropriate safety standards.65 The Restatement, although
advancing some of the older arguments outlined above, accepts this
adoption theory66 and a number of courts have supported it
explicitly67 or by clear implication.68 Others simply reflect the
theory without mentioning it by applying some statutes in tort
cases and not applying others.
Judicial policy judgments. A court’s acceptance or rejection of a
statutory standard necessarily reflects its attitudes about justice
and policy. Courts refused for a long time to impose liability upon
sellers of alcohol who sold in violation of statutory restrictions.
They simply rejected the statutory standard as inappropriate.69 As
public and judicial attitudes changed, courts began to adopt the
statutory standards for liquor sellers and to impose tort liability for
their violation when, for example, the seller provides alcohol to a
minor or an intoxicated person who then causes harm as a result of
the intoxication.70 There are many examples of statutes that are
rejected as grounds for tort liability on very broad grounds of policy
or attitude, including, for example, statutes that would, if utilized
in tort litigation, impose liability upon governmental agencies or
252
officers. So far, however, courts and commentators have not

advanced any systematic principles for determining when to adopt
and when to reject a nonprescriptive statute.71
Adoption of federal statutes. If state courts are free to make any
given common law rule, then they are equally free to adopt that
same rule from a federal statute’s provisions. Courts could equally
use international statutory instruments as an expression of their
own law.72 The rule so adopted is a common law rule, whatever the
source of the norms it borrows. Courts have sometimes concluded
that a federal statute sets a standard to be incorporated by the
state courts into the state’s common law.73 Even federal Medicaid
regulations of nursing homes have been adopted to define what
counts as abuse or neglect under state law.74
Application of statutes beyond the legislative command. Because
common law courts are free to create judge-made law, in the
negligence per se realm they can adapt, as well as adopt, statutes.
In particular, courts might adopt a statutory rule and give it any
scope appropriate under the common law, even if the legislature
had a much more restricted scope in mind for the statute’s criminal
law applications.75 So even if legislation for factory safety were
directed only at protection of employees, a court might logically
decide that the factory safety standards should apply for the
benefit of all persons who might foreseeably be endangered by the
statute’s violation, including, say, business visitors in the factory.
The Colorado Court adopted exactly such a position in receiving
evidence that the defendant violated a federal workplace safety
statute. The statute itself applied to protect workers, but the court
borrowed its regulations as helpful evidence of negligence in a
common law claim brought by an independent contractor who was
not within the class of persons the statute itself sought to protect.76
Unsuitable statutes. However, there are several groups of
nonprescriptive statutes that are often regarded as unsuitable for
use in tort cases. Courts may reject statutes that do not provide a
meaningful standard to apply—for example, statutes that require
reasonableness or the like but do not specify the particular conduct
required,77 although
253
some fairly abstract statutes are sometimes given the

negligence per se effect.78 Many cases, but not all,79 discard
licensing statutes80 and some analogues81 as well. Particular
statutes might be rejected on the ground that their use in tort
cases would be impractical or difficult—for example, because they
might raise unwieldy questions of causation.82
Statutes imposing duties to the public but not individuals.
Under the public duty doctrine, courts do not adopt the statutory
standard to govern tort cases where they believe the statute
creates only a “public duty” rather than a duty to a particular class
of persons.83 For example, ordinances may require landowners to
remove natural accumulations of snow and ice from abutting public
walks. Courts often hold that such ordinances impose a duty to the
public, but not a duty to individuals injured by reason of the
violation. The result is that the landowner is not liable for injuries
resulting from his violation of the ordinance.84 In many states, the
public duty doctrine is only a rule that, subject to exceptions,
reflects the discretionary immunity of public entities.85
When courts will not apply statutes as per se negligence. There
are a number of standard limits on application of statutory
standards as negligence per se. First, courts usually refuse to adopt
statutory standards that were not aimed at protecting against
harms of the kind suffered by the plaintiff or at protecting groups
that included the plaintiff.86 Second, courts often excuse the
violation of statutes when the violation does not necessarily
bespeak negligence. For example, courts routinely refuse to apply
the
254
statutory standard to children.87 Third, courts sometimes reject

statutes on the ground that the statute was intended to protect the
public without protecting any individual.88
Type of harm and class of persons protected. The first category
of limitations encompasses two separate constraints. First,
violation of statute is not negligence (or contributory negligence)
per se unless the statute is construed to protect against the type of
risk or type of harm89 that actually occurred. Stated in more
general times, violation is not negligence per se unless the statute
was intended to protect against the “type of accident” that
occurred.90 Second, violation is not negligence or contributory
negligence per se unless the statute is construed to protect a class
of people that includes the plaintiff.91
Type of harm. Suppose a statute forbids poisons in restaurant
kitchens. The defendant violates the statute by placing rat poison
near a stove in the restaurant’s kitchen. The poison causes an
explosion in which the plaintiff is injured. One reasonable way to
analyze the case is to say that the kind of harm the statute is
intended to avoid is poisoning, not burns or explosive trauma. Not
surprisingly, the Oklahoma Court held that violation of such a
statute was not negligence per se in an explosion case.92
Room for discretion: level of generality. The rule does not
automatically resolve cases. Types of harm or risk can be
understood in either very specific or very general terms. If the
court generalizes the type of harm, many variants will be covered
by the statutory standards. In an Idaho case,93 regulations
required that access to publicly operated landfills had to be
controlled by fences or otherwise. By simply walking in, children
entered a public landfill on a day when no workers were present.
The wall of the landfill collapsed and crushed them. A court could
read the regulations as intended to prevent dumping of hazardous
wastes, or to prevent injuries to entrants from exposure to
hazardous wastes or moving machinery. That reading would make
the regulations irrelevant to a claim for injuries resulting from the
structural danger of a wall. A divided court, however, generalized
the risks by referring to risks to “human health” and by saying that
the risks of a falling wall were similar to the risks of earth-moving
machinery the statute was intended to prevent.
Type of risk, means, or instrumentality. In some cases the
statute might be construed as intended to prevent the very kind of
harm that occurred, but only when the harm is inflicted by certain
means. In a case from Illinois,94 one “Allen” purchased a small
quantity of gasoline from a service station, placing it in a pint-sized
insecticide
255
can. The service station made the sale in violation of a statute

that required delivery only to containers that were labeled for
gasoline and that met certain other conditions. Allen used the
gasoline to start a fire at an apartment building. Four people died
in the fire. In a tort suit for their death brought against the service
station, the plaintiffs argued that the court should use the statute’s
provision as a basis for liability. The court refused to do so, even
though the statute undoubtedly meant to protect people from fire
dangers.
Risks created by the violation. One way to view the facts is to
say that the statute intended to protect against fire and burning,
but only to the extent that labeling proper containers would tend to
increase fire safety. The labeling rule would seldom if ever reduce
arson risks, so the statute might have been intended to cover the
general type of harm suffered—fire—but not the risk of harm by
means of arson. This kind of analysis suggests that courts need a
rule like the type of risk rule that focuses in part on how the injury
came about, as well as a type of harm rule that focuses on the end
result alone.
Type of risk overlapping type of harm rule and different
interests. The type of risk and type of harm rules can in fact
overlap substantially or totally, depending on how broadly the
court defines risk and harm. In fact, the Restatement Second
subdivided the type of harm/risk rule even further and said that a
court should not adopt a statutory rule where the statute was not
intended to protect the interest that was in fact harmed.95 For
instance, if a statute was intended to protect bodily security it
should not be used as a standard for a case in which economic
interests were harmed. Suppose a case in which the defendant
violates rules about the safety of building structures with the
result that the building collapses. The statute was no doubt
intended to protect workers from physical injury, but not intended
to protect them from purely economic losses resulting from the fact
that they cannot work while the building is being repaired. So the
defendant is not liable to workers who are not injured but who lose
wages because their employer’s place of business is destroyed.
Describing the harm. Inevitably, to describe the harm is to
describe at least a little about how the harm comes about. The
ability to shift from type of harm to type of risk by slight shifts in
linguistic usages and the inability to describe one without
implications about the other suggests that the distinction is not so
much one found in nature as it is in courtrooms and classrooms.
The same may be true of differences in interests. If the distinction
is meaningful in practice, it is not because of its intrinsic merit but
because courts can bring to it a sense of justice and balance.
§ 11.7 Class of Persons Protected Under the
Statute
Class of persons protected. The class of persons rule is very
similar to the type of harm, type of risk, or type of accident rule.
The idea is that even if the plaintiff suffers the type of harm
covered by the statute, she cannot claim negligence per se unless
she is within the class or group of people the statute was intended
to protect.96 However, a description of the risk of harm and type of
accident often implicitly describe the class of persons as well. So, in
many cases, courts could get the same result whether they used
the type of harm/type of risk rule or the class of person rule.
256
Example. In a Mississippi case,97 the defendant pulled her car

over and parked on the left side of the street to chat with a friend.
When the visit was completed, the defendant looked in all
directions, saw no one, and started driving off. She immediately
struck a small child, who had not been visible. The court refused to
hold that the defendant’s violation of the right-side-of-the-street
statute was negligence per se, saying that the class of persons to be
protected by that traffic rule was pedestrians and drivers acting in
reliance upon the orderly flow of traffic.
Foreseeability of increased harm to the class from the rule
violation. The result seems correct. It would be no less correct if the
court had said that the statute was aimed at preventing harms
that would be more likely to occur from being on the wrong side of
the road. If the defendant had gone around the block so as to face
the right direction, the risk to children under a bumper would not
have been lessened. So the case can be analyzed either in terms of
the class of persons or the class of risk involved.
Interpreting scope of risk. Statutes do not always clearly
indicate what class of persons and risks they are intended to
protect against. That is understandable enough, since the
nonprescriptive statutes under discussion make no provision at all
for tort liability or tort standards. How, then, are courts to apply
the type of accident and class of person rules to statutes that
neither call for tort liability nor specify the scope of their
protections?
Foreseeable types of harm and protected persons. Given that
courts adopt the rules of nonprescriptive statutes as they seem
fitted for tort law, one entirely appropriate solution is to treat the
statute as encompassing all persons and harms that would
foreseeably be safer if the statute were obeyed. Conversely, that
solution would treat the statute as encompassing no persons or
harms that would not be foreseeably safer if the statute were
obeyed.98
An example. For example, statutes often regulate driving safety
by requiring brakes, limiting speed, or prohibiting intoxicated
driving or specific kinds of vehicular movements. Such statutes are
obviously for the protection of others using the streets and
highways, but since it is foreseeable that bad brakes, excessive
speed, intoxicated driving, dangerous vehicular movement, or even
overweight vehicles can also cause harms to persons or property off
the highway, courts have every reason to say that the statutory
rule applies for the benefit of persons off the road as well.99
Unforeseeable risks. On the other hand, if you park your car in a
zone designated by ordinance for loading commercial vehicles, you
are in violation of the statute; but your violation creates no more
risk that a child will dart into the street from behind your car than
if you had parked in the some other location. If it is a matter of
legislative intent, courts can suppose that the legislature never
created loading zones as child safety statutes but only as a
convenience for merchants, so that violation of the statute is
irrelevant. If it is a matter of judicial fairness or policy, the same
limitation applies
257
because the harm risked from illegal parking in the loading

zone is not injury to children but delay of persons making a
delivery.
Statutory language. Sometimes, however, courts attempt to give
the statute’s standard a narrow scope because of narrow words
used in the statute itself. A statute that requires covering or
fencing elevator shafts in workplaces might be titled “An Act to
Protect Workers.” This or similar language could lead a court to
say that only workers are within the class protected, so that if a
firefighter or a person making a delivery to the premises falls into
an open shaft, he enjoys none of the statute’s protections. Courts
have actually so held.100
Avoiding unjust distinctions. The rule is not working well in
cases like this. Although the legislature might properly refuse to
impose the costs of fencing a shaft solely for the benefit of odd
visitors, a fence guarding an open shaft costs the same whether it
protects one worker or ten firefighters who are properly in the
building. When the class of persons/risk rules are used in this way,
they can lead to invidious differences in protection. Since courts
are not required to adopt the statutory rule in the first place, they
are not required to adopt its limitation either. So courts are free to
avoid making unjust distinctions like those in the shaft cases.
Using a tort foreseeability principle. The best way to do this is
by adhering to the foreseeability principle that runs through
common law torts: protect all persons who would naturally and
foreseeably be injured by a violation of the statute and protect
them against risks that are foreseeable from its violation. This is a
class of risk and class of person rule, but it judges the scope of the
risk and the size of the class by what is foreseeable, not by the
preoccupation of the legislature with a particular constituency. The
standard is also familiar to judges and lawyers from the analogous
cases of “proximate cause.”
Adoption of statutory standards and relation to excused
violation. In the excuse cases, courts accept the statutory rule as
the usual standard but reject it for certain instances when the rule
appears undesirable or unjust because of the particular facts of the
case. In these cases, courts say they “excuse” violation of the
statute and that an excused violation is not negligence.101 The
jurisprudence of excuses gives courts a degree of guidance in
determining whether to give a statute effect as negligence per se or
evidence of negligence. Yet it should be remembered that where
the statute does not specify the standard for tort law purposes,
courts retain the power to reject the statutory standard for any
reason of justice or policy consonant with the common law
traditions without regard to formal excuses.102
Unexcused violations. The Restatement notes that courts do not
excuse violations of the statute merely because the defendant was
ignorant of the law or misunderstood it, because people
customarily violate the statute, or because the defendant sincerely
258
believes the law to be unwise.103 Nor is mental incapacity of
adult an excuse for statutory violation.104 The rules are slightly
nuanced, however. Ignorance of the law is no excuse, but justifiable
ignorance of facts calling for care is. And if ignorance of the law
arises because a statute is obscure or not well known, a court
might be persuaded to reject the per se rule and treat violation
only as evidence of negligence.105 Similarly, a court might reject a
confusing, ambiguous criminal statute as a tort standard.106 And
though custom to violate the law is no excuse, customs may help
interpret the facts, including the meaning of traffic directions that
are allegedly violated.107 In addition, a known custom of drivers to
violate a statute may be relevant to show that an injured
pedestrian was chargeable with comparative fault for failure to
protect herself against such a known special danger.108
Categories of excuses. Excused violation cases are generally
those in which the defendant does not appear to be negligent even
if he is assumed to have violated the statute. The excuse doctrine
helps courts avoid turning statutory commands into a general
system of strict liability. The generally recognized excuses,109 to
which others may be added, are as follows:
(1) Childhood or physical disability. Either the statute
does not apply to children110 or the child’s violation of
statute is excused.111 For example, a child runs into the
street chasing a ball, violating the statute by failing to look
in both directions.112 In line with this excuse and this
example, courts commonly let the jury consider a minor’s
conduct under the traditional child standard of care or some
variation of it rather than under the strict per se rule.113
Similarly, one whose physical incapacity prevents
compliance with the statute is excused,114 although he may
be liable for antecedent negligence in creating a situation he
could not physically cope with.115
(2) The actor does not know and could not reasonably
discover the occasion for compliance with the statute.116 For
example, the nighttime driver
259
is required by statute to display lights in the rear of his

vehicle, but does not know his rear lights have burned out
and has no means of anticipating or discovering the fact.117
This rule does not excuse ignorance of the law, only a
reasonable ignorance of facts that would invoke the law.118
But ignorance of the facts would not be an excuse if the
statute requires investigation and knowledge.119
(3) Violation of statute is safer for the actor or others
than compliance.120 On occasion, the only safe thing to do is
to violate the literal words of the statue. For example, a
driver deliberately crosses to the wrong side of the highway
to avoid hitting a child.121 The Third Restatement
eliminates the separate excuse for emergency,122 relying on
this safer-than-compliance excuse instead.123 The classic and
more dubious basis for the supposed rule that excuses
violations that are safer arose when the plaintiffs walked on
the right side of the highway instead of the left, claiming it
was safer.124 This excuse requires courts to determine
whether violation was in fact safer than compliance, or at
least whether it would so appear to a reasonable person
under the circumstances. This inquiry, like all of the excuse
jurisprudence, eliminates the certainty that is the claimed
advantage of statutory standards.
(4) The actor exercised reasonable care in attempting to
comply with the statute.125 The excuse that the actor
exercised reasonable care to comply with the statute may be
expressed by saying the actor is excused if “he did what
might reasonably be expected of a person of ordinary
prudence, acting under similar circumstances, who desired
to comply with the law”126 or if he
260
“exercised reasonable care in an effort to comply.”127 For

example, the defendant’s car is struck by another, so that the
steering mechanisms are damaged; the defendant cannot
prevent his car from moving into another lane in front of an
oncoming motorcyclist, the plaintiff.128 This excuse is more
general than the others and can be regarded as the principle
on which most specific excuses are built. By its terms,
however, it is limited to cases in which the actor’s conduct
would be reasonable for one who is attempting to comply
with the statutory standard.
Construing the Statute to Eliminate Violation. Excuse is not the
only formal way in which the defendant can avoid a negligence per
se condemnation. In some cases, the defendant can plausibly argue
that he simply did not violate the statute at all.
One kind of no-violation decision is a purely factual
determination; if the plaintiff claims that the defendant ran a stop
light in violation of a statute, the jury must determine whether the
defendant in fact ran the light.129 The appellate courts will have
little role in such determinations.
The second kind turns on the court’s determination of the
meaning of statutory language. For instance, statutes almost
always require some degree of fault or some intended conduct. If a
driver suffers unconsciousness or death from an unforeseeable
stroke or seizure, his unguided vehicle may cross the center line
and cause a collision, but the driver himself has not acted at all, so
the best solution to the negligence per se puzzle on those facts may
be to conclude that the statute was not violated. To construe the
statute otherwise violates both the tort traditions of liability for
fault and the ordinary understanding of language at the same
time.
Refusing to accept excuses: strict liability under statutes. Courts
are not required to recognize excuses. They can choose instead to
impose strict liability so that even if the defendant has acted with
every possible effort to comply with the statute, he could be held
liable.130 A few states, for example, hold that a driver is not
excused if his vehicle strikes a hidden and unforeseeable patch of
ice, goes into a slide that cannot be controlled, and causes a
collision on the wrong side of the road,131 even though it is clear
that he is not negligent.132 In such a case he is said to have
violated a statute requiring him to stay on the right side of the
road.
Proscribing results rather than conduct. Statutes like the right
side of the road statutes do not prescribe conduct, only an ideal
result to aim for or achieve. If courts create a tort cause of action
based on these statutes, they should recognize that they are
261
imposing strict liability and should spell out justifications for

such selective strict liability or return to the fault principle.
________________________________
1 Cf. Cullip v. Domann, 266 Kan. 550, 972 P.2d 776 (1999) (boy
violated statute by hunting without safety certificate, but was not carrying
the gun that discharged and harmed the plaintiff).
2 §§ 11.6 to 11.7.
3 See § 11.9.
4 Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268
(D.C. 1987); Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821 (Del.
1995); Restatement Third of Torts (Liability for Physical and Emotional
Harm) § 14 (2010). The rules may be codified in some statutes. See West’s
Ann. Cal. Evid. Code § 669.
Harm) § 14 (2010) (“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 the accident victim is within the class of
persons the statute is designed to protect.”).
6 E.g., Donaldson v. Indianapolis Pub. Transp. Corp., 632 N.E.2d
1167 (Ind. Ct. App. 1994); Adams v. Mills, 312 N.C. 181, 322 S.E.2d 164
(1984).
7 E.g., Thomas v. Commerford, 168 Conn. 64, 357 A.2d 476 (1975)
(unsignalled turn); Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920)
(lights).
8 Lucas v. Hesperia Golf & Country Club, 255 Cal.App. 2d 241, 63
Cal.Rptr. 189 (1967) (either lifeguard or warning that one was not present
required, violation was negligence per se).
9 See Camden Oil Co., LLC v. Jackson, 270 Ga.App. 837, 609 S.E.2d
356 (2004); Simpson v. Boyd, 880 So.2d 1047 (Miss. 2004) (statutes
requiring fire exits covered any emergent need to escape).
10 E.g., Robinson v. Bates, 112 Ohio St. 3d 17, 857 N.E.2d 1195
(2006).
11 Brock v. Watts Realty Co., Inc., 582 So.2d 438, 43 A.L.R.5th 839
(Ala. 1991) (common law did not recognize a duty of care to protect tenant
against intruders, but ordinance created a duty with respect to locks);
Grant v. Thornton, 49 So.2d 529 (Fla. Dist. Ct. App. 1999) (landlord’s door
locks required key for exit, tenant who could not reach key in a fire injured
escaping through a window).
12 Pierce v. ALSC Architects, P.S., 270 Mont. 97, 890 P.2d 1254
(1995); Vega v. Eastern Courtyard Assocs., 117 Nev. 436, 24 P.3d 219
(2001) McGuire v. Hodges, 639 S.E.2d 284 (Va. 2007); contra, Mayle v.
Ohio Dep’t of Rehab. & Corr., 2010 WL 2433119 (Ohio Ct. App. 2010)
(building code was administrative rule and thus violation was not to be
given the negligence per se effect, only evidence of negligence).
13 Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2
L.Ed.2d 382 (1958) (ship lights); Haft v. Lone Palm Hotel, 3 Cal.3d 756,
478 P.2d 465, 91 Cal.Rptr. 745 (1970) (lifeguard); Alderman’s Inc. v.
Shanks, 536 N.W.2d 4 (Minn. 1995) (building, fire door); Barnaby v. A. &
C. Properties, 188 A.D.2d 958, 592 N.Y.S.2d 98 (1992) (workers,
scaffolding act); Reed v. Phillips, 192 W.Va. 392, 452 S.E.2d 708 (1994).
14 E.g., Coker v. Wal-Mart Stores, Inc., 642 So.2d 774 (Fla. Dist. Ct.
App. 1994); but cf. Williams ex rel. Raymond v. Wal-Mart Stores East,
L.P., 99 So. 3d 112 (Miss. 2012) (store’s sale of ammunition to a minor, in
violation of a federal statute, was negligent per se, but store was not liable
because the store’s negligence was not a proximate cause of the death of
the victim who was shot by the minor with that ammunition); Rains v.
Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003).
15 E.g., Loeb v. Rasmussen, 822 P.2d 914 (Alaska 1991), superseded
by statute, Sowinski v. Walker, 198 P.3d 1134, 1140 (Alaska 2008).
16 Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228 (2007).
17 Alaface v. Nat’l Investment Co., 181 Ariz. 586, 892 P.2d 1375 (Ct.
App. 1994).
18 See Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 782 A.2d
807 (2001) (court treats the “Nuremberg Code,” standards set by the war
crimes tribunals in trials of Nazi doctors for their human experiments as
important guideline if not a firm standard in human subjects case).
19 E.g., Griglione v. Martin, 525 N.W.2d 810 (Iowa 1994); Elliott v.
City of New York, 95 N.Y.2d 730, 747 N.E.2d 760, 724 N.Y.S.2d 397
(2001); Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 909 N.E.2d 120
(2009) (violation of administrative regulation is evidence of negligence
only).
20 E.g., Parker Bldg. Servs. Co., Inc. v. Lightsey ex rel. Lightsey, 925
So.2d 927, 931 (Ala. 2005); Fresno Traction Co. v. Atchison, T. & S. F. Ry,
175 Cal. 358, 165 P. 1013 (1917); Nettleton v. Thompson, 117 Idaho 308,
787 P.2d 294 (1990); Vega v. Eastern Courtyard Assocs., 117 Nev. 436, 24
P.3d 219 (2001) (building code adopted by county ordinance).
21 Davis v. Marathon Oil Co., 64 Ill. 2d 380, 356 N.E.2d 93, 1 Ill. Dec.
93 (1976); contra, Mayle v. Ohio Dep’t of Rehab. & Corr., 2010 WL
2433119 (Ohio Ct. App. 2010) (“an administrative rule violation” but is
only evidence of negligence).
22 See, e.g., Haft v. Lone Palm Hotel, 3 Cal.3d 756, 478 P.2d 465, 91
Cal.Rptr. 745 (1970); Joseph v. Bozzuto Mgmt. Co., 173 Md. App. 305, 918
A.2d 1230 (2007).
23 Kaho’ohanohano v. Department of Human Servs., State of Haw.
117 Haw. 262, 291, 178 P.3d 538, 567 (2008) (a statute calling for
immediate action by the child protective agency once an abuse report is
received “underscores the recognition of a special relationship between
[the agency] and the alleged endangered child and a duty on the part of
[the agency] and its social workers to protect that child”); Nelson v.
Driscoll, 295 Mont. 363, 371, 983 P.2d 972, 978 (1999) (“A special
relationship can be established … by a statute intended to protect a
specific class of persons of which the plaintiff is a member from a
particular type of harm.”).
Harm) § 14 cmt. i (2010).
25 Id.
26 See Pile v. City of Brandenburg, 215 S.W.3d 36 (Ky. 2006)
(“negligence per se is merely a negligence claim with a statutory standard
of care substituted for the common law standard of care”); McGuire v.
Hodges, 639 S.E.2d 284 (Va. 2007) (party showing violation of statute need
go no further to establish negligence, but still must show proximate cause
and other elements).
27 Cuyler v. U.S., 362 F.3d 949, 952 (7th Cir. 2004).
28 Marquay v. Eno, 139 N.H. 708, 713–14, 662 A.2d 272, 277 (1995)
(The doctrine of negligence per se on the other “provides that where a
cause of action does exist at common law, the standard of conduct to which
a defendant will be held may be defined as that required by statute, rather
than as the usual reasonable person standard. The doctrine of negligence
per se, however, plays no role in the creation of common law causes of
action. Thus, in many cases, the common law may fail to recognize liability
for failure to perform affirmative duties that are imposed by statute.”); see
also Quiroz v. Seventh Ave. Ctr., 140 Cal.App.4th 1256, 1285, 45
Cal.Rptr.3d 222, 244 (2006); Varela ex rel. Nelson v. St. Elizabeth’s Hosp.
of Chicago, Inc., 372 Ill.App. 3d 714, 867 N.E.2d 1, 310 Ill.Dec. 688 (2007).
29 E.g., Olson v. Shumaker Trucking & Excavating Contractors, Inc.,
347 Mont. 1, 18, 196 P.3d 1265, 1277 (2008) (“Establishing the existence of
negligence per se settles only the questions of duty and breach”); Lang v.
Holly Hill Motel, Inc., 122 Ohio St.3d 120, 909 N.E.2d 120 (2009).
However, these cases appear to mean only that the statute prescribes the
specific means of satisfying an existing duty of reasonable care.
30 See, e.g., Estate of Johnson ex rel. Johnson v. Badger Acquisition
of Tampa LLC, 983 So.2d 1175 (Fla. Dist. Ct. App. 2008) (“violation of a
statute may be evidence of negligence, but such evidence only becomes
relevant to a breach of a standard of care after the law has imposed a duty
of care”).
Harm) § 14 cmt. i (2010) (violation of a statute can be relevant to a duty
analysis).
32 See Young v. U-Haul Co. of D.C., 11 A.3d 247 (D.C. 2011)
(ordinance prohibiting owner of motor vehicle from authorizing or
knowingly permitting motor vehicle to be driven by an unauthorized
person could not be used as basis for negligence per se where rental
company did not know at the time of the rental that the renter’s driver’s
license had been suspended); Hopper v. Swinnerton, 317 P.3d 698 (Idaho
2013) (plaintiffs failed to prove that defendants violated the statute).
Harm) § 14 cmt. c (2010).
34 Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920). Cf. Woods v.
Burlington N. & Santa Fe Ry., 324 Mont. 151, 104 P.3d 1037 (2004)
(railroad’s violation of federal regulation was negligence per se in suit
under federal FELA statute).
35 E.g., Getchell v. Lodge, 65 P.3d 50 (Alaska 2003).
36 See, e.g., McCormick v. Carrier, 487 Mich. 180, 795 N.W.2d 517
(2010) (Michigan’s No-Fault Act); Beggs v. State, Dep’t of Soc. & Health
Servs., 171 Wash.2d 69, 247 P.3d 421 (2011) (mandatory child abuse
reporting statute held to imply cause of action against a mandatory
reporter who failed to report suspected abuse).
37 Federal Employers Liability Act (FELA), 45 U.S.C.A § 51.
38 See Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394,
2 L.Ed.2d 382 (1958); CSX Transp., Inc. v. McBride, 131 S.Ct. 2630, 180
L.Ed.2d 637, 32 I.E.R. Cas. (BNA) 609, 2011 A.M.C. 1521 (2011) (in an
FELA case normal rules of proximate causation do not apply; rather, a
plaintiff need only show that the railroad’s negligence played a part, no
matter how small, in bringing about the injury).
39 Some important federal statutes like this include the Jones Act,
46 U.S.C.A. § 688 (some FELA rules applied to injured seafaring
employees); Federal Tort Claims Act, 28 U.S.C.A. §§ 2671 to 2680 (creating
rights against government for certain torts); the Emergency Medical
Treatment Act, 42 U.S.C.A. § 1395dd (rights to emergency screening and
treatment at certain hospitals); various civil rights acts, including 42
U.S.C.A. § 1983 (denial of federal right under of color of law is actionable);
42 U.S.C.A. § 2000e (certain employment discrimination actionable after
procedural prerequisites); Americans with Disability Act, 42 U.S.C.A. §§
12101 et seq.; Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA) (Superfund Act), 42 U.S.C.A. §§ 9607 et seq.
In the states, statutes creating a claim for elder abuse are in this category.
See, e.g., Wash. Rev. Code § 74.34.200.
40 Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (federal officers can be
sued for constitutional violations).
41 See Marquay v. Eno, 662 A.2d 272 (N.H. 1995) (drawing the
distinction to resolve confusion in two seemingly contradictory lines of
cases).
42 See Robinson v. Bates, 112 Ohio St.3d 17, 857 N.E.2d 1195 (2006)
(a statute construed to mean that the open and obvious danger doctrine
was abolished and a tort cause of action was created separate from the
common law action; referred to as “negligence per se”).
43 O’Neill v. Dunham, 203 P.3d 68 (Kan. Ct. App. 2009) (referring to
private cause of action for negligence per se); Doe v. Marion, 373 S.C. 390,
645 S.E.2d 245 (2007) (similar).
44 See Raymaker v. American Family Mut. Ins. Co., 293 Wis.2d 392,
718 N.W.2d 154 (Ct. App. 2006) (asserting that “negligence per se” can be
invoked only when “there is some expression of legislative intent that the
statute become a basis for the imposition of civil liability”).
45 See M.W. v. Dep’t of Soc. & Health Servs., 149 Wash. 2d 589, 70
P.3d 954 (2003).
46 See Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003) (statute
imposing certain limited liabilities on seller of alcohol to intoxicated
person does not foreclose common law action, the statute did not show a
legislative intent to occupy the field). The statute was amended after the
Craig decision, apparently making the statute exclusive. See Conn. Gen.
Stat. Ann § 30–102. See also Hairston v. General Pipeline Constr., Inc.,
226 W.Va. 663, 704 S.E.2d 663 (2010) (state statute prohibited excavation,
removal or destruction of burial grounds or unmarked graves without a
permit, and preempted common law with respect to those specific matters,
but statute did not bar plaintiff’s common law claim for grave desecration).
47 29 U.S.C.A. §§ 651 et seq.
48 The exact provision in the federal statute: “Nothing in this chapter
shall be construed to supersede or in any manner affect any workmen’s
compensation law or to enlarge or diminish or affect in any other manner
the common law or statutory rights, duties, or liabilities of employers and
employees under any law with respect to injuries, diseases, or death of
employees arising out of, or in the course of, employment.” 29 U.S.C.A §
653(b)(4).
49 A number of courts have refused to treat violation of the OSHA
statute as negligence. Ries v. National R.R. Passenger Corp., 960 F.2d
1156 (3d Cir. 1992); Canape v. Petersen, 897 P.2d 762 (Colo. 1995). Others
have used violation of the statute as negligence per se. Pratico v. Portland
Terminal Co., 783 F.2d 255 (1st Cir. 1985). Others have strived for a
middle ground, treating violation of the statute as evidence of negligence,
but not negligence in itself. Scott v. Matlack, Inc., 39 P.3d 1160 (Colo.
2002).
50 Ridley v. Safety Kleen Corp., 693 So.2d 934 (Fla. 1996); Absolon v.
Dollahite, 376 Md. 547, 831 A.2d 6 (2003); Guinan v. Famous Players-
Lasky Corp., 267 Mass. 501, 167 N.E. 235 (1929); Praus v. Mack, 626
N.W.2d 239 (N.D. 2001). Statutes may prescribe the evidence of negligence
rule. Wash. Rev. Code § 5.40.050.
51 Galloway v. State, 654 So.2d 1345 (La. 1995). Wyoming gives the
trial judge discretion whether to instruct the jury under the per se or the
evidence of negligence rule and reviews for abuse of discretion. Frost v.
Allred, 148 P.3d 17 (Wyo. 2006).
52 Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).
53 Sawyer v. Food Lion, Inc., 144 N.C.App. 398, 549 S.E.2d 867
(2001) (OSHA regulation). Legislation sometimes provides that violation of
a particular statutes has no effect or at most is evidence of negligence.
E.g., Cal. Vehicle Code § 27315; N.C. Gen. Stat. § 20–141.
54 Koll v. Manatt’s Transp. Co., 253 N.W.2d 265 (Iowa 1977);
Manchack v. Willamette Indus., Inc., 621 So.2d 649 (La. Ct. App. 1993).
55 Considine v. City of Waterbury, 279 Conn. 830, 905 A.2d 70
(2006).
56 Cal. Evid. Code § 669 specifies that certain statutory violations
create a presumption of negligence, rebuttable by a showing, among other
things, that “The person violating the statute, ordinance, or regulation did
what might reasonably be expected of a person of ordinary prudence,
acting under similar circumstances, who desired to comply with the law.”
57 See, e.g., Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991).
“Presumption” and “prima facie” are equated in the language of some
judges. See Kizer v. Harper, 211 W.Va. 47, 561 S.E.2d 368, 374 (2001).
58 For instance, some courts might mean that the defendant could
rebut the finding of negligence simply by persuading the jury that his
conduct was reasonable in spite of the violation. See Childs v. Purll, 882
A.2d 227 (D.C. 2005) (violation of statute creates a presumption of
negligence, but if defendant offers evidence to show he acted reasonably in
spite of the violation, then violation is merely evidence of negligence);
Kalata v. Anheuser-Busch Cos., Inc., 144 Ill.2d 425, 581 N.E.2d 656, 163
Ill.Dec. 502 (1991); Polakoff v. Turner, 385 Md. 467, 869 A.2d 837 (2005).
The District of Columbia has elsewhere been more direct: “Ordinarily,
while the violation of a statute or a regulation having the force of law may
be evidence of negligence, it does not constitute negligence per se.” Liu v.
Allen, 894 A.2d 453, 459 (D.C. 2006).
59 In a 2009 article attacking the negligence per se rule, however,
Professor Blomquist devoted almost 20 pages to reviewing and quoting
cases from 1841 to Cardozo’s opinion in Martin v. Herzog. Robert F.
Blomquist, The Trouble with Negligence Per Se, 61 S.C. L. Rev. 221
(2009).
60 The problem runs back as far as the 14th century with the
enactment of a statute on repossession of land by forcible entry. 5 Richard
II c. 7. Courts have struggled over the years with the question whether
that statute created a tort claim and if so what it looked like. As late as
1860 the New York Court of Appeals was rejecting the idea that a criminal
statute would have tort law effect. Brown v. Buffalo & State Line R.R., 22
N.Y. 191 (1860). Some 19th century statutes did provide expressly for tort
liability and some courts may have moved unthinkingly from those
statutes to the now-common statutes that provide nothing of the sort.
Another line of 19th century cases involved an element of social reform.
Important statutes reflected legislative efforts to protect people from
railroads, purveyors of dangerously bad food, unlabeled poisons, and
employers of child labor.
61 See Thayer, Public Wrong and Private Action, 27 Harv. L. Rev.
317 (1913); Prosser & Keeton § 36.
Harm) § 14 cmt. c (2010).
63 Id.
64 Olson v. Ratzel, 89 Wis.2d 227, 278 N.W.2d 238 (Ct. App. 1979).
65 Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002).
Harm) § 14 cmt. c (2010).
67 Talley v. Danek Med., Inc., 179 F.3d 154 (4th Cir. 1999); Ferrell v.
Baxter, 484 P.2d 250 (Alaska 1971); Clinkscales v. Carver, 22 Cal.2d 72,
136 P.2d 777 (1943); Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534
A.2d 1268 (D.C. 1987); Mansfield v. Circle K. Corp., 877 P.2d 1130 (Okla.
1994); Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003);
Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959); see Frost v.
Allred, 148 P.3d 17, 22 (Wyo. 2006) (trial judges have “discretion” to adopt
the standard as negligence per se or to limit its use to evidence of
negligence, reviewable for abuse of discretion).
68 See Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995). A
number of courts have implicitly accepted the adoption theory in quoting
with approval from Restatement sections that express the theory. E.g.,
Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d 270 (1976); Barrett v. Lucky
Seven Saloon, Inc., 96 P.3d 386 (Wash. 2004).
69 E.g., Stachniewicz v. Mar-Cam Corp., 259 Or. 583, 488 P.2d 436
(1971), overruled by Davis v. Billy’s Con-Teena, Inc., 284 Or. 351, 587 P.2d
75 (1978); Garcia v. Hargrove, 52 Wis.2d 289, 190 N.W.2d 181 (1971),
superseded by statute as explained in Meier ex rel. Meier v. Champ’s
Sport Bar & Grill, Inc., 241 Wis.2d 605, 623 N.W.2d 94 (2001).
70 Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268
(D.C. 1987); Sorensen v. Jarvis, 199 Wis.2d 627, 350 N.W.2d 108 (1984).
Legislatures sometimes erected an immunity in favor of the alcohol
provider, however, as in Wis. Stat. Ann. § 125.035.
71 See, proposing a systematic analysis for determining when to
adopt a statutory standard, Robert F. Blomquist, The Trouble with
Negligence Per Se, 61 S.C. L. Rev. 221 (2009).
72 See Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 782 A.2d
807 (2001) (Nuremberg Code might create or confirm a duty of human
experimenter to obtain fully informed consent of subject).
73 Americans with Disabilities Act: Smith v. Wal-Mart Stores, Inc.,
167 F.3d 286 (6th Cir. 1999). Federal gun control statutes: Franco v.
Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977) (violation of federal statute
requiring information to be given before selling a gun is evidence of
negligence under Arkansas’ evidence-of-negligence rule); Rubin v.
Johnson, 550 N.E.2d 324 (Ind. 1990) (one who violates state gun control
statute by selling gun to person of unsound mind would be guilty of
negligence per se). Federal safety standard: Grey’s Ex’r v. Mobile Trade
Co., 55 Ala. 387 (1876). Federal regulations: Price v. Blood Bank of Del.,
Inc., 790 A.2d 1203 (Del. 2002) (violation of federal regulation designed to
protect recipients of blood transfusions from disease bearing blood would
be negligence per se); Howard v. Zimmer, Inc., 299 P.3d 463 (Okla. 2013)
(federal regulations under the Medical Device Amendments to the FDCA
may be given per se effect).
74 Conservatorship of Gregory, 80 Cal.App.4th 514, 95 Cal.Rptr. 2d
336 (2000).
75 Cf. Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959) (“As
the power of adopting or rejecting standards rests with the civil courts, we
may accept or reject the criminal statute or use such part thereof as may
be deemed appropriate for our purpose … we still retain the test of
foreseeability of harm before liability is imposed under the doctrine of
negligence per se.”).
76 Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002).
77 E.g., Chadbourne, III v. Kappaz, 779 A.2d 293 (D.C. 2001) (“No
owner of an animal shall allow the animal to go at large”; the term “allow”
invokes ordinary negligence judgments, so no negligence per se instruction
is appropriate against the dog owner); Wallace v. Ohio Dep’t of Commerce,
96 Ohio St. 3d 266, 773 N.E.2d 1018 (2002) (when the statutory duty is
defined “only in abstract or general terms, leaving to the jury the
ascertainment and determination of reasonableness and correctness of
acts and conduct under the proven conditions and circumstances, the
phrase negligence per se has no application”); cf. Restatement Third of
Torts (Liability for Physical and Emotional Harm) § 14 cmt. e (2010)
(statutes that duplicate the common law rule).
78 Kimberlin v. PM Transp., 563 S.E.2d 665 (Va. 2002) (regulation
required truck drivers to use “extreme caution” in fog and where traction
is diminished treated as creating an “expanded duty,” although the effect
was the same as saying that reasonable care required caution in the face
of reduced visibility).
79 Duty v. East Coast Tender Serv., Inc., 660 F.2d 933 (4th Cir. 1981)
(operation of vessel without licensed operator required by Coast Guard
regulation); Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d
587 (1947) (one who knowingly permits another to drive without a license
is guilty of negligence per se); cf. Corgan v. Muehling, 143 Ill.2d 296, 574
N.E.2d 602, 158 Ill.Dec. 489 (1991) (violation of statute requiring
psychologist’s registration creates an implied private right of action in
favor of harmed patient). In Kizer v. Harper, 211 W. Va. 47, 561 S.E.2d
368 (2001), an electrician’s work was held to be prima facie negligent
because the electrician did not have the license required by statute.
80 Brown v. Shyne, 242 N.Y. 176, 151 N.E. 197, 44 A.L.R. 1407
(1926) (one holding himself out to practice medicine but who has no license
and who injures the would-be patient is not guilty of negligence per se
merely because of his breach of the licensing statute); see Keenan v. Hill,
190 Ga. App. 108, 378 S.E.2d 344 (1989) (rule stated, but contrary
instruction was not prejudicial on the facts); Gregory, Breach of Criminal
Licensing Statutes in Civil Litigation, 36 Cornell L. Rev. 622 (1951).
81 See Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835 (N.D.
1995); cf. Lingle v. Dion, 776 So.2d 1073 (Fla. Dist. Ct. App. 2001) (statute
required surgeon doing outpatient surgery to have hospital privileges for
equivalent surgery; held “not a negligence per se statute” so violation is
not negligence).
82 Stanchiewicz v. Mar-Cam Corp., 259 Or. 583, 488 P.2d 436 (1971);
Olson v. Ratzel, 89 Wis.2d 227, 278 N.W.2d 238, 4 A.L.R.4th 313 (Ct. App.
1979).
83 In Pace v. State, 425 Md. 145, 38 A.3d 418, 278 Ed. Law Rep. 444
(2012), the mother of a student who suffered a severe allergic reaction to a
peanut butter sandwich served as part of a school lunch program sued
various state-government defendants, claiming they breached a duty of
care under the National School Lunch Act. The court held that the NSLA
did not impose any duty on the state to protect students with food
allergies, because its language was insufficiently specific to impose a tort
duty and because it was “not designed to protect a particular subset of
students, … but rather, to serve the needs of all eligible school-aged
children.”
84 E.g., Lopatkovich v. City of Tiffin, 28 Ohio St.3d 204, 503 N.E.2d
154 (1986) (duty to municipality only, not to those who might be injured;
“snow and ice are part of wintertime life in Ohio”); Martin v. Altman, 568
A.2d 1031 (R.I. 1990) (public duty only).
85 See Morales v. Town of Johnston, 895 A.2d 721 (R.I. 2006).
Harm) § 14 (the per se rule applies if the statute “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”);
Restatement Second of Torts § 286 (1965); §§ 11.6–11.7.
87 § 11.9.
88 1 Dobbs, Hayden & Bublick, The Law of Torts § 158 (2d ed. 2011
& Supp.).
89 E.g., Lopez v. Baca, 98 Cal.App.4th 1008, 120 Cal.Rptr.2d 281
(2002) (statute prohibiting bars from employing persons to solicit the
purchase of drinks was a morals statute and injuries in altercation
following customer’s refusal to pay inflated price was not type of harm
statutes were intended to prevent); Lewis v. B & R Corp., 56 S.W.3d 432
(Ky. Ct. App. 2001) (federal regulations intended to provide persons under
a disability with safe access to public buildings not intended to prevent
risk that driver would back across parking lot, down an embankment,
across a road and into a river); Busby v. Quail Creek Golf & Country Club,
885 P.2d 1326 (Okla. 1994).
90 “Type of accident” is the language of the Restatement Third.
14 (2010).
91 Ramirez v. Nelson, 44 Cal.4th 908, 188 P.3d 659, 80 Cal.Rptr. 3d
728 (2008); Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975); Long v.
Daly, 156 P.3d 994 (Wyo. 2007).
92 Larrimore v. American Nat’l Ins. Co., 184 Okla. 614, 89 P.2d 340
(1939).
93 O’Guin v. Bingham County, 142 Idaho 49, 122 P.3d 308 (2005).
94 Stafford v. Borden, 252 Ill. App. 3d 254, 625 N.E.2d 12 (1993).
95 Restatement Second of Torts § 286(c) (1965).
96 Universal Coops., Inc. v. AAC Flying Serv., Inc., 710 F.3d 790 (8th
Cir. 2013); Maurer v. Speedway, LLC, 774 F.3d 1132 (7th Cir. 2014).
97 Haver v. Hinson, 385 So.2d 605 (Miss. 1980).
98 Torres v. State, 119 N.M. 609, 894 P.2d 386 (1995).
99 Castro v. Hernandez-Davila, 694 S.W.2d 575 (Tex. App. 1985)
(intoxicated driver who drove into apartment building, causing a wall to
collapse; negligence per se); Sigrist v. Love, 510 P.2d 456 (Colo. Ct. App.
1973) (left turn in violation of statute led to injury off the highway;
negligence per se); but cf. Erickson v. Kongsli, 40 Wash.2d 79, 240 P.2d
1209 (1952) (property owners off the road were not within class protected
by right of way rules for vehicles).
100 Kelly v. Henry Muhs Co., 71 N.J.L. 358, 59 A. 23 (1904)
(firefighter); cf. DiCaprio v. New York Cent. R.R., 231 N.Y. 94, 131 N.E.
746 (1921) (mandate to railroad to fence out cattle did not protect small
child who wandered onto the track).
101 See, e.g., Gore v. People’s Sav. Bank, 235 Conn. 360, 665 A.2d
1341 (1995) (“defendant ordinarily may avoid liability upon proof of a valid
excuse or justification”); Restatement Third of Torts (Liability for Physical
102 1 Dobbs, Hayden & Bublick, The Law of Torts § 150 (2d ed. 2011 &
Supp.).
Harm) § 15 cmt. a (2010).
104 Id.
105 See Frost v. Allred, 148 P.3d 17, 22 (Wyo. 2006) (so stating).
Harm) § 15 cmt. e (2010).
107 See Johnson v. Garnand, 18 Ariz. App. 191, 501 P.2d 32 (1972).
108 See Elliott v. Callan, 255 Or. 256, 466 P.2d 600 (1970) (holding
that a custom of violating a speed statute could not excuse the defendant,
but that a known custom to violate a safety statute might work against a
plaintiff on the issue of contributory negligence if she failed to take the
danger into account and also that a such a custom might show negligence
of a defendant who motioned a plaintiff to cross the street where drivers
customarily violated safety standards).
Harm) § 15 (2010).
110 See Busby v. Quail Creek Golf & Country Club, 885 P.2d 1326,
1331–32 (Okla. 1994); cf. Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d
201 (1959) (common law child standard applies).
111 Bauman v. Crawford, 104 Wash.2d 241, 704 P.2d 1181 (1985).
112 Cf. Ranard v. O’Neil, 166 Mont. 177, 531 P.2d 1000 (1975)
(contributory negligence of 8-year-old dashing into street excused if he
lacked capacity for compliance with statute).
113 E.g., Burgbacher v. Lazar, 97 A.D.2d 496, 468 N.Y.S.2d 14 (1983);
Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974); Rudes v. Gottschalk,
159 Tex. 552, 324 S.W.2d 201 (1959) (child standard of care rather than
child’s ability to understand the statute). A few courts have applied the
negligence per se rules to children. D’Ambrosio v. Philadelphia, 354 Pa.
403, 47 A.2d 256 (1946).
114 Hout v. Johnson, 281 Or. 435, 446 P.2d 99 (1968).
115 E.g., Storjohn v. Fay, 519 N.W.2d 521 (Neb. 1994).
116 See, e.g., Sabolik v. HGG Chestnut Lake Ltd. P’ship, 180 Ohio
App.3d 576, 906 N.E.2d 488 (2009) (landlord excused if he neither knew
nor should have known that tenants could be scalded by bath water);
Heath v. La Mariana Apartments, 143 N.M. 657, 661, 180 P.3d 664, 668
n.2 (2008) (he neither knows nor should know of the occasion for
compliance); Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 15(c) (2010); Restatement Second of Torts § 288A(2)(b)
(1965).
117 Leiken v. Wilson, 445 A.2d 993 (D.C. 1982); Brotherton v. Day &
Night Fuel Co., 192 Wash. 362, 73 P.2d 788 (1937).
118 Hudson v. Old Guard Ins. Co., 3 A.3d 246 (Del. 2010) (statute
required driver to sound horn before collision but driver could not
anticipate collision); Nettleton v. Thompson, 117 Idaho 308, 787 P.2d 294
(Ct. App. 1990) (Burnett, J., concurring) (“exception might exist where a
defendant has no actual or imputed knowledge of the facts invoking
application of a legislative standard”); see Juarez ex rel. Juarez v.
Wavecrest Mgmt. Team, Ltd., 88 N.Y.2d 628, 649 N.Y.S.2d 115, 672
N.E.2d 135 (1996) (statutory duty of landlords to remove lead paint where
child lived in premises did not impose a duty to find out whether a child
was there).
119 Smith v. Owen, 841 S.W.2d 828 (Tenn. Ct. App. 1992) (ordinance
imposed upon landlord a duty to inspect wiring in leased premises, hence
landlord’s lack of knowledge of defect is no defense).
Harm) § 15(c); Restatement Second of Torts § 288A(2)(e) (1965).
121 Cf. See Jones v. Blair, 387 N.W.2d 349 (Iowa 1986) (recognizing
principle); Cowell v. Thompson, 713 S.W.2d 52 (Mo. Ct. App. 1986) (driver
lost control when another driver pulled out in front, crossed into opposing
lane of traffic and collided with car in which plaintiff was a passenger;
violation of the right-side-of the-road statute could be excused).
122 However some courts retain the emergency excuse. See Hagenow
v. Schmidt, 842 N.W.2d 661 (Iowa 2014).
Emotional Harm) § 15 cmt. f (2010).
124 A famous example, based on Tedla v. Ellman, 280 N.Y. 124, 19
N.E.2d 987 (1939).
Harm) § 15(b) (2010). The Second Restatement used unnecessarily strong
language: “he is unable after reasonable diligence or care to comply.”
Restatement Second of Torts § 288A(c) (1965).
126 Alarid v. Vanier, 50 Cal.2d 617, 624, 327 P.2d 897, 900 (1958);
Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991); see Lepucki v.
Lake County Sheriff’s Dep’t, 801 N.E.2d 636 (Ind. Ct. App. 2004)
(presumption of negligence from violation of safety statute “may be
overcome by evidence that [the violator] acted as a reasonable prudent
person would act under the circumstances”).
127 Arms v. Halsey, 43 A.D.3d 1419, 842 N.Y.S.2d 847 (2007).
128 Giancarlo v. Karabanowski, 124 Conn. 223, 198 A. 752 (1938).
129 See e.g., Pond v. Leslein, 72 Ohio St. 3d 50, 647 N.E.2d 477 (1995).
130 O’Donnell v. Elgin, J. & E. Ry., 338 U.S. 384, 70 S.Ct. 200, 94
L.Ed. 187 (1949) (under Federal Safety Appliance Act governing certain
railroad safety equipment for workers, railroad’s reasonable care is
irrelevant to liability); cf. Sanatass v. Consolidated Investing Co., 10
N.Y.3d 333, 887 N.E.2d 1125, 858 N.Y.S.2d 67 (2008) (liability for violation
of state scaffold law referred to as strict liability).
131 E.g., Teply v. Lincoln, 125 Idaho 773, 874 P.2d 584 (Ct. App.
1994).
132 He would not be negligent if the ice could not be anticipated and
he faced a sudden emergency, which is a reason given in some courts for
excusing wrong-side-of-the-road slides on ice. E.g., Young v. Flood, 182
Mich. App. 538, 452 N.W.2d 869 (1990). He would also not be negligent if
he found it impossible to steer once he hit the unforeseeable ice.
263
Chapter 12
BREACH OF DUTY
Analysis
A. NEGLIGENT CONDUCT
B. FORESEEABILITY AND RISK-UTILITY
§ 12.5 Supporting and Criticizing Structured Risk-Utility Assessments
C. CUSTOM
§ 12.7 Limitations on the Use of Custom and Practice
§ 12.8 Private Standards: Defendant’s Own “Customs” or Practices
D. STATUTORY COMPLIANCE
__________
A. NEGLIGENT CONDUCT
Scope. This chapter focuses on the main rules and concepts used
to determine the second element in the negligence case—the
defendant’s breach of duty, which is to say the defendant’s
negligence.1 The general rule is that a person is negligent if he
fails to exercise reasonable care under the circumstances to protect
against risks of harms.2 Accordingly, breach is generally a failure
to exercise reasonable care under the circumstances. Main tests of
whether a party has failed to use reasonable care include an
unstructured weighing of risks and utilities, Judge Learned Hand’s
more structured weighing of risks and utilities,3 evidence of the
custom in the community, and the party’s compliance with statute.
Of course, as discussed in the previous chapter, violation of statute
is also an important consideration. If the standard of care is
supplied by statute, as in negligence per se, failure to comply with
the statute establishes breach. In special types of cases, additional
tests such as notice and opportunity to cure and res ipsa loquitur
(letting the accident itself speak to the issue of breach) may also
apply.
264
The specific conduct requirement. Negligence itself is not a

historical fact. Negligence represents an evaluation of facts. In
general, plaintiff cannot prevail by saying that the defendant drove
his car so negligently that he injured the plaintiff. Instead, the
plaintiff must point to a particular way in which that conduct could
have been made safer. What we need to know is what precise
physical actions the plaintiff claims the defendant should have
done differently to present less risk. In automobile cases, for
example, the plaintiffs commonly attempt to prove that the
defendant failed to keep a proper lookout,4 drove at an excessive
speed,5 followed too closely,6 or otherwise engaged in specific
dangerous acts, not merely that the defendant was negligent in
some unspecified way. The plaintiff must show, directly or by a
reasonable inference, precisely what the defendant did or didn’t
do.7
Purpose of specificity requirement. Why the requirement of such
specificity? One important reason is that only when you know
specific conduct can you estimate the risks and utilities of that
conduct, a process normally implicit in finding negligence. It is
impossible to estimate reasonable care in general or risks and
utilities of the defendant’s conduct in particular unless specific
conduct is identified. If, instead of judging conduct by risks and
utilities, you attempt to judge it by community custom or by
legislative standards, the same problem arises; you must know the
conduct you are judging.
Negligence for engaging in a general activity. It is, of course,
possible for a plaintiff to claim that the defendant is negligent by
engaging at all in some general activity like driving cars or
running hotels. But it would be almost impossible to successfully
contend that reasonable people never drive cars or operate hotels,
because the utility of such activities is very high.8 As a practical
matter, then, the plaintiff must ordinarily attempt to prove some
specific way in which the car was driven or the hotel was
maintained that could reasonably have been made safer.
Other purposes. There are some other reasons why specific
conduct must be identified in order to claim negligence. It would be
impossible to conclude that the defendant’s conduct was a cause of
the plaintiff’s harm or that the harm was within the scope of the
risk unless you know what the risk was; to know that, you must
know the specific conduct claimed to be negligent.
B. FORESEEABILITY AND RISK-UTILITY
Negligence entails an unreasonable risk of foreseeable harm. A
person is not necessarily negligent merely because he can foresee
the possibility of harm resulting
265
from his acts; some risks are acceptable.9 However,

foreseeability of harm, though not sufficient, is necessary to show
negligence. No actor can be counted as negligent unless he either
actually foresaw, or a reasonable person in a similar position would
have foreseen a risk of harm.10 What is foreseeable depends in
large part on what facts the defendant actually knew or those he
should have known, based on his obligation to know and act as a
reasonable person.11 The language of foreseeability arises in
literally thousands of cases where courts attempt to determine
negligence and related issues.12
Refining foreseeability language: risk. When the language of
foreseeability is used instead of the language of risk, it is all too
easy to over- or under-state responsibility in tort. Thus a court may
easily slip into saying that negligence can be established when
harm is foreseeable,13 although it is clear that foreseeability of
harm, though necessary, is not sufficient.14 For this and other
reasons, the foreseeability rules are actually more accurately
captured in the language of risk. Thus an actor is negligent when
he creates or continues unreasonable risks of foreseeable harm, not
merely when harm is foreseeable to him. And he is not
unreasonable and not negligent unless he either knew of the risk of
foreseeable harm or should have known of it.15 Statement of the
rule in terms of risk permits the rule to describe when negligence
can be established as well as when it cannot be.
Refining foreseeability language: foreseeability as unjustified
risk. Courts speaking of foreseeable harms often use the term to
mean not merely that harm is a foreseeable possibility, but that
harm is too likely to occur to justify risking it without added
precautions.16 Even a highly improbable harm may still be too
likely to justify a risk of it, as where the foreseeable harm is very
serious even though the probability of its occurrence is small.17
Lack of forseeability and justified risk. Courts also use
foreseeability as a reference to probability in making the negative
statement that harm was not foreseeable in a
266
particular case. In such cases, they may mean that although

harm was actually foreseeable on the facts of the case, a reasonable
person would not have taken action to prevent it because the risk
of harm was low and harm was so improbable that a reasonable
person would not have taken safety precautions.18
Imprecision from expansive use of the term. Courts that speak of
foreseeability in the sense of probability are often collapsing
several different inquiries into one statement about foreseeability.
The conclusion that harm would have been foreseeable to a
reasonable person is entirely distinct from the conclusion that
probability of harm was great enough to require care; and both
these things are distinct from the conclusion that the actor’s
conduct was unreasonable in light of all the relevant factors.
Clarity requires separation of those issues and the term
foreseeability alone is not up to the job.
Should have known and foreseeability. What the actor should
have foreseen often depends a great deal on the knowledge and
information he has or should have as a reasonable person. The
term should have known, sometimes discussed in terms of
constructive negligence or constructive notice,19 is one way of
saying that the reasonable person standard governs the question of
unreasonable risk and foreseeability, so the actor’s subjective
inability to appreciate a risk is immaterial. Negligence of a
plaintiff is judged in the same way, except that with contributory
negligence the plaintiff often risks harm to herself rather than to
others.
An example: knew or should have known. Suppose you have
stored your goods with me and I know that a flood is likely to
occur. Given that knowledge, a reasonable person should recognize
a risk to your goods and take appropriate action for their safety. If
I do not know that a flood is on its way, but merely that my
warehouse lies in the flood plain, I may still know enough to about
potential harm to require reasonable steps to inform myself by
listening to weather reports, in which case courts can say I should
have known of the flood risk or that it was reasonably foreseeable.
If I know neither of the approaching flood nor the endangered
position of the warehouse but a reasonable person would know
them, I am still required to act on the basis of the risks that would
have been recognized by a reasonable person in my position, and I
am liable for the flood damage if I do not do so. Thus, when we
speak of foreseeability of harm, it is either harm subjectively
foreseeable to the actor or harm foreseeable to a reasonable person
that is determinative.
Intentional torts distinguished. Liability for unreasonably risky
conduct that causes harm differs from liability for intent, partly in
that intentional wrongdoing is based upon conduct that is coupled
with either a purpose that is legally wrong or a certainty that
267
legally cognizable harm will result. Negligence, in contrast, is

based upon a reasonably foreseeable harm, not a certain or
purposeful one. That is to say, negligence entails a recognizable
chance or risk—an unreasonable likelihood—but not a certainty of
harm.
Scope of foreseeable harm: breach. Risks or foreseeable harms
can be described at different levels of abstraction, that is, broadly
or narrowly. If we tried to describe all the particular risks or
foreseeable harms that speeding would create, the list would be
long, and we might still not think of some particular kinds of harm.
But without identifying all the possible versions of speed-related
harm, we can surely foresee broad categories of risks and harms to
persons and property resulting because the driver might lose
control. So if a speeding driver crashes into your living room, the
fact that a reasonable person would not have specifically
recognized a risk of harm to your favorite easy chair will not
operate to avoid the driver’s liability.20 It is one of the cluster of
harms in a generally foreseeable category, and that is enough. In
the breach area, the foreseeability question is phrased broadly—
should the actor have foreseen some harm to someone from the
conduct. In contrast, in the proximate cause inquiry, the
foreseeability issue is phrased more narrowly—should the actor
have foreseen the type of harm that actually occurred to the
plaintiff.21
Foreseeability as a jury question. Foreseeability is seldom if ever
a pure fact. You cannot determine whether a reasonable person
would recognize a risk of harm in the way you can determine
whether a traffic signal is red. Reasonable foreseeability of harm is
instead a judgment call. In some cases it is a call that is easy to
make and is so clear that courts will brook no argument. When the
issue is negligence,22 the question of what is or is not foreseeable to
a reasonable person in the position of the defendant is normally a
jury question, part of its overall evaluation of the defendant’s
conduct unless the answer is so clear that reasonable people cannot
differ.23
Accepting useful risks. Tort law recognizes that maximum
safety is not always desirable. It is not negligent to maintain
bathtubs, although people do fall in them. Risky acts are therefore
not always negligent acts, even when harm is foreseeable.24 An
important line of thought on these points is that conduct is not
negligent when the usefulness of conduct outweighs the risks it
imposes upon others. If the benefit or “utility” of conduct is enough,
some degree of risk or foreseeable harm is acceptable.25
268
This comparison of risks with utilities is justified at least when

utility of the dangerous conduct takes the form of increased human
safety.26 Perhaps, as many thinkers believe, the risk-utility
comparison is even broader, reflecting the possibility of weighing
economic utilities against human safety.27 This section and those
immediately following focus on approaches that, formally or
informally, weigh risks against utilities of the defendant’s conduct.
The main factors. In determining whether a jury can reasonably
find the defendant’s conduct to be negligent, the relationship of the
parties is important, but courts most commonly consider
relationships on the issue of duty.28 When it comes to negligence,
courts routinely engage in an informal assessment of three factors,
although in a particular case they often refer only to the factor that
has been singled out as determinative for that case.29 The factors
informally weighed are: (1) the foreseeable likelihood that the
person’s conduct will result in harm, (2) the foreseeable severity of
any harm that may ensue, and (3) the burden of precautions to
eliminate or reduce the risk of harm.30
Expressed differently but meaning the same thing, courts
consider the likelihood that the defendant’s conduct will cause
harm and the amount of harm it will cause if harm indeed results;
and they will weigh these considerations against the usefulness of
the conduct and the cost of making it safer.31 For example, a
failure to warn is a basic form of negligence32 because it usually
costs little to give a warning so that a warning might be required
even when the risk of harm is small.33 These factors are often
explicit in products liability cases.34
269
General use of risk-utility. Courts depart from this weighing of

risks and utilities in a few cases, where they permit industries to
set their own standards of care, as in the case of physicians.35
Otherwise, however, appellate courts have routinely considered
these factors in assessing evidence of negligence since the early
years of the negligence era.36 In many instances, courts weigh
risks against utilities, costs against benefits, without formally
identifying these factors, but, formally or informally, courts do
compare costs and benefits or risks and utilities of conduct in
evaluating evidence of negligence.37
Example. The most ordinary kinds of negligence cases involve
such an analysis. Driving cars is risky, as the statistics show, but it
is also useful, so you would be negligent for driving a car only if
you add to the normal risks of cars by, say, driving fast.38 But even
fast driving is useful on occasion. If you are driving fast because
you are transporting a dangerously wounded person to the
hospital, there is some extra utility or usefulness in your conduct
that justifies some extra risks. If you continue to drive fast
although a herd of sheep approaches, maybe you are still justified,
since the harm you might do to the herd is still small in
comparison to the life of your wounded passenger. But if instead of
a herd of sheep you encounter a street full of soccer-playing
children, the harm threatened by your speed is now so great that
you’ll probably be negligent if you don’t slow down. Courts
routinely follow this kind of reasoned but unquantified weighing of
risks and utilities or costs and benefits.
Probability and amount of harm. The case of the fast driver
shows that estimating the importance of a risk involves two things.
First, you must estimate probability. How likely is it that harm will
occur?39 Second, and quite differently, how much harm will occur if
the risk does in fact eventuate in harm?40 A person who fires a rifle
in an apparently empty meadow runs only a small risk of hitting
some unseen person, but if that risk eventuates, the harm
potential for serious injury or death is great. On the other
270
hand, a person who fires a gun that shoots ping-pong balls into
a crowded street creates a very high risk of very small harm. These
cases suggest why the trier must consider both the likelihood of
harm and its extent.
Utility of defendant’s conduct to third persons or society. The
risk of harm must be weighed against the usefulness of the
defendant’s conduct.41 The defendant’s conduct might be useful in
several different kinds of ways. In the example of the wounded
passenger, the driver seems selfless—the wounded person, not the
driver, will benefit from the expedited medical attention. Utility is
often like this. The defendant’s conduct is a risk to one person, but
the same conduct has great utility to another or to society at
large.42 In this situation, if the defendant changes his conduct to
make things safer for A, B will pay the cost of that change by
facing a greater risk. The trier must determine whether increasing
the risk to B is reasonable because the same conduct reduces the
risk to A.
Utility of defendant’s conduct to himself. Frequently, the utility
of the defendant’s conduct is a utility mainly or most obviously to
himself and beneficial to society only because society’s well-being is
composed (at least in part) of aggregate individual benefits. I
operate a factory that occasionally permits escape of gases that
cause small damage to your adjacent property. I can avoid
occasional leaks only by expending large sums of money. For me,
there is some utility in continuing to permit occasional leaks; it
saves me the cost of avoiding them. That kind of cost-saving utility
may also be one basis for risk-utility or cost-benefit comparisons.
That is partly because the utility to the defendant is seldom if ever
utility to him alone; costs to the defendant will be passed on to
customers or workers in the form of higher prices or lower wages.
It is also partly because plaintiffs and defendants are treated
equally so that the utilities to each are properly considered
whether they are important to others or not.
Comparing dollar costs. So far, risk-utility balancing has been
presented as an unstructured set of considerations, each of which
is important in some not-very-defined way, or as Harper, James &
Gray express it, the “tone” of the discussion is “more moral than
economic.”43 Indeed, from a moral viewpoint, it may be that risks
and utilities should be weighed and offset only in very narrow
ways. It has been argued that a money cost of safety should not by
itself suffice to justify serious risks of human death, for example.
In this view, freedom to act might be weighed against personal
security from harm, but not against financial costs alone.44
271
Some important thinkers, however, have shaped the risk-utility

analysis into a more structured model for decision and one that can
be based on economic analysis and dollar comparisons between the
costs to the defendant of avoiding harm and the cost to the plaintiff
of suffering that harm. In the escaping gas example, the more
structured approach might hold that I am not negligent if it would
cost me more to avoid the gas leaks than those leaks cost you and
others in property damage. The next section considers this form of
analysis.
A structured approach. Courts routinely apply some form of
risk-utility weighing as a means of determining whether conduct
was negligent. Some courts have gone further by explicitly
approving a form of risk-utility weighing that may be more
rigorous or at least more structured45 than the free-form estimate
of risks and costs sketched in the immediately preceding section.46
Judge Hand’s decision in Carroll Towing. The structured model
is usually traced to an opinion written by an impressive judge,
Judge Learned Hand, and in fact is often referred to as the Hand
formula or as the Carroll Towing doctrine after the case in which
Hand advanced his ideas. United States v. Carroll Towing47 was an
admiralty case. A barge in a busy harbor broke loose and caused
damage. Harm could have been avoided if a caretaker or bargee
had been on board at all times, but he was not. The question was
whether it was negligent not to have a 24-hour bargee on board.
The Hand formula. Judge Hand recognized the traditional idea
that a weighing of risks and utilities was necessary. He said, “[T]he
owner’s duty … to provide against resulting injuries is a function of
three variables: (1) The probability that [the barge] will break
away; (2) the gravity of the resulting injury, if she does; (3) the
burden of adequate precautions.” This language summed up the
experience of many cases, but Hand then went on. He identified
the burden of precaution as B, gravity of the loss as L, and
probability of harm as P, then stated his famous formula:
[L]iability depends upon whether B is less than L
multiplied by P:
i.e., whether B < PL.
Injury or harm that could not have been foreseen or avoided.
Any given act has potential for injury. But the Hand formula only
directs us to consider injury or harm that would have been avoided
by appropriate care and only those harms that are foreseeable and
within the scope of the defendant’s duty of care. A defendant who
fails to lock up his handguns risks theft and misuse, quite possibly
a killing inflicted by the thief. If locking up the guns would not
have prevented a theft, or if death is not a foreseeable consequence
of the gun theft, the risk of death is not considered in applying
272
the Hand formula48 If the court concludes that a gun owner

owes no duty at all to lock up guns, the negligence issue and the
Hand formula is never even reached, for the case will be dismissed
on no-duty grounds.
Injury or harm to the defendant himself. Suppose the defendant
risks harm to others by driving at 60 mph and also risks harm to
himself. Considering risks of harm to others alone, though, 60 mph
might be a reasonable speed under all the circumstances. However,
if we consider risks of harm to others plus risks of harm to the
defendant himself, we might conclude that a speed of 60 mph is
negligent. Should a court or jury consider both the risk of harm to
others and the risks of harm to one’s self in applying the Hand
formula? The traditional formulation and the actual practice in the
courts suggests that only the risks of harm to others have been
considered. Perhaps this is the case less by explicit reasoning and
more by virtue of an assumption that the defendant’s risk to
himself is the defendant’s own business.49 In any event, important
economic thinkers have challenged the practice, arguing that in
weighing the burdens of precaution against risks, the total
foreseeable and avoidable risks, including risks to the defendant
himself, should be weighed.50 Such an approach, they argue, would
encourage defendants to take appropriate precautions by
undertaking the burden of precaution when the total risk of harm
exceeded the cost of that burden. Their approach, if accepted,
would apply to contributory or comparative negligence of plaintiffs
as well as to negligence of defendants.
Precaution as a burden to third persons or society. The burden of
precaution in Judge Hand’s formula includes any cost the
defendant might have to incur to make things safe enough, but it
also includes costs that would be inflicted upon others or upon
society at large. For instance, cars often strike telephone or light
poles. If the pole gives way and falls on impact, the passengers in
the car may be safer than if they had collided with an immovable
object. On the other hand, falling poles may strike pedestrians or
others. To make things safer for pedestrians may be to make them
riskier for car passengers and vice versa. So if the telephone
company installs stronger poles to protect the pedestrian, part of
the cost of doing so will be borne by car passengers who suffer
injury as a result.51 The burden of greater safety for pedestrians
includes a cost in the increased risk to car passengers and, under
Judge’s Hand’s formula, that must be weighed.
Precaution as a burden to defendant. In Carroll Towing itself,
the burden of precaution was simple: the increased or marginal
cost to the defendant of keeping a bargee on board 24 hours a day.
Suppose that cost was, say, $30,000 a year in increased wages, and
that breakaways averaged one a year with an average damage to
other vessels of $20,000. In that scenario, the barge owner would
not be negligent in failing to
273
keep a 24-hour bargee because the cost to prevent a $20,000

loss would be a $30,000 expenditure, a result usually condemned
as economically inefficient.52
Net burden to the defendant? In assessing the burden of
precaution to the defendant do you consider his net burden after
taking into account any advantage he gains from precautionary
expenditures? Suppose the defendant’s added expenditure of
$30,000 to keep a bargee on board at all times would save $20,000
in costs to others and also $20,000 in costs to the barge owner
himself, since his property as well as that of others is at risk. In
that case you could conclude that the net burden of precaution to
the barge owner would be only $10,000, because his expenditure of
$30,000 would save him $20,000 as well as saving similar losses to
others. Although expressed as a net burden, such an approach
works out to be the same as saying that you must consider risks of
harms to the defendant as well as risks to others.53 So far, courts
have not ordinarily taken into account the benefits the defendant
gets from taking precautions.54
The firm analogy. The Hand test treats the two parties as if
they were partners in a firm. It says the firm would be foolish to
spend $30,000 in one department to avoid a $20,000 loss in another
department. A firm that does that regularly will soon be out of
business. Although the plaintiff and defendant are not in fact
members of the same private firm, they are members of the same
society. That society is a very large firm that will be poorer if one of
its citizens must spend $30 to save another $20.
Putting costs and benefits on the same scale. Thinking about the
problem in terms of the Carroll Towing formula, a judge or juror55
can compare benefits with costs because they have now been put on
a common scale. Better safety is achieved at a cost of $30,000, but
the safety benefit is only $20,000. The same point can be made by
saying that the utility or benefit to the defendant in not having a
bargee is $30,000 a year saved, but that the utility or benefit to
injured parties that will result from having a 24-hour bargee is
$20,000. By reducing all the costs and benefits to dollar terms, we
can make such comparisons, and that is a great advantage. The
great disadvantage of reducing the risks, costs, and benefits to
dollar terms is that we might be treating quite incommensurate
risks alike.56
Evidence and arguments suggested by the formula. On the
illustrative facts above, the dollar comparison of utilities favors the
defendant, but the test can just as easily work the other way
around. If the defendant’s cost of preventing the harm is less than
274
the expected value of the harm itself, he is definitely negligent

and liable under the Hand formula, as was the case in Carroll
Towing itself. Indeed, one function of the formula may be to permit
a recovery that would otherwise be barred by a rule of law.57
Another, maybe the most important, is to direct lawyers to helpful
kinds of evidence. Plaintiffs’ lawyers may be thus led by the Hand
formula to claim that the defendant failed to use cheaper means of
achieving safety. For instance, a plaintiff’s lawyer might try to
prove that the defendant could have avoided the breakaway in
Carroll Towing by making a one-time capital investment in better
tie-down technology that would be far less costly than either the
full-time bargee or the potential harm from breakaways.58
Similarly, the formula suggests and supports jury argument. The
plaintiff who can show that by spending $1 the defendant could
have avoided serious injury or injuries to many people has a ready-
made and appealing jury argument. The Hand formula may not
work as well for defendants’ jury arguments; they may not wish to
argue that it would have been costly to a large corporation to avoid
paralyzing the plaintiff. But even defendants may find it possible
to introduce evidence and to make arguments based on the Hand
formula in appellate courts.
Probability and average. To speak of probability is to speak of
foreseeability, but the language of probability is more precise in its
structure. We can think of probability in terms of odds or
percentages—a probability of .9 or a probability of .5 for example—
but it sounds foolish to speak of .9 or 90% foreseeability. In the
examples used above, probability is reflected in the averaging. If
untended barges break away an average of ten times in a ten year
period, doing damage each time, we know something about the
probability of breakaways—one a year. If the untended barges
break way twenty times in a 10-year period, the average is no
longer one a year but two a year, and the probability is
correspondingly twice as high as our first estimate. The same kind
of thinking applies to the amount of harm factor. Some injuries
might be small, while others are large, but it is the average that
best expresses the total amount of harm for the time period
involved.
Discounting to reflect probability. Part of the impact of Judge
Hand’s test comes from the fact that it literally discounts the
plaintiff’s damages as a part of getting the average. Probability can
be expressed as a percentage or chance. If a given harm is certain
to occur, the probability would be 1.00, but if the chance of its
occurrence is only 50–50, the probability would be 0.50. So if the
defendant’s conduct created a risk of $100 damage, but the
probability of harm was 0.50, the Hand formula tells us that we
treat the damage in issue as $50 instead of $100 for purposes of
comparing the defendant’s cost. That is because we discount or
multiply probability times harm to get the average. 0.50 x $100
gives us an average $50 damage.
Amount of plaintiff’s recovery unaffected by discount. Although
probability is used to discount the damage when the point is to
determine the defendant’s negligence, probability is not used to
reduce the plaintiff’s actual recovery. If the defendant is found to
be negligent by application of these rules, he is liable for all of the
plaintiff’s injury,
275
whether it is $50, $100, or many times those amounts. The

discount applies only as a way of determining the total risk
imposed by the defendant’s conduct.
Averaging. Averaging, or the use of the probability discount, is
important if the defendant is to estimate the appropriate overall
amount to invest in safety. Any particular injured individual might
suffer damages much less than the defendant’s cost to avoid the
harm but still recover because the average harm would exceed that
cost. And vice versa: the injured individual might suffer much
greater harm than the defendant’s cost of avoidance and yet be
denied recovery because the cost of avoidance was too high
compared to the average or probable overall harms. Indeed, one of
the criticisms of the Hand formula, at least as it might be
rigorously applied, is that it may do social good without doing
individual justice. The next section summarizes some of the
criticisms.
§ 12.5 Supporting and Criticizing Structured
Risk-Utility Assessments
Exceptions to risk utility and the general rule. In some
negligence claims based on alleged medical malpractice and a few
others, courts may bypass the risk-utility assessment altogether.
In those cases, the custom of the profession may furnish the
standard of care, so that even very risky procedures may not be
counted as negligence if the profession customarily engages in such
procedures. Otherwise, however, courts do routinely attempt to
weigh risks and utilities to determine whether the defendant was
negligent.
Rigor. The Hand formula is often seen to be more rigorous than
a free-form weighing of costs and benefits. Part of the rigor lies in
the fact that the Hand formula places risks and utilities on a
common scale of dollars so that they can be fully compared.
Another part lies in the fact that the formula sets up precise
relationships among probability, gravity of harm, and cost of
safety. These characteristics represent both strengths and
weaknesses of the formula.
Justifications and Limits
Economic justifications. Under an economic interpretation of
the Hand formula, the purpose of weighing of costs and benefits of
the defendant’s conduct is to generate a rule of liability that gives
actors incentives to invest an appropriate amount in safety. Since
virtually all conduct carries some risk, a world of perfect safety
would eliminate or fantastically transform almost all conduct. The
Hand model of risk-utility weighing is often supported as an
economic analysis intended to impose liability for economically
inefficient risk-taking, but to protect conduct that is efficient in the
sense that the risks involved are worth taking. Risks that are
worth taking produce more gains than losses, to the benefit of
society as a whole by maximizing wealth (as a measure of human
preferences). Judge Posner has provided some of the clearest
arguments along these lines.59
Other advantages. Although commentators most often discuss
economic justifications of the Hand formula, other justifications
might be advanced. The Hand approach may be better at
protecting everyone’s rights and freedoms to act in the world than
a more intuitive approach. At the same time, it sets limits on those
rights.
276
Moreover, it provides lawyers with a guide that is helpful in

knowing what kind of evidence to produce. Finally, it constrains
judges to explain their conclusions about negligence, not merely as
an unfathomable exercise of power or discretion, but in terms that
can be judged by professionals in the field.
Criticizing the Hand Formula
Incentives. Some criticisms of the Hand approach do not attack
the underlying ideas of the formula so much as the claim that it
promotes efficiency and appropriate safety incentives. In this
group, some criticisms offer more or less technical variations or
improvements on the formula.60 Others deny that tort law provides
incentives at all and hence suggest that the Hand formula might
be irrelevant unless it serves other purposes.61
Inability to provide quantified data. A different kind of criticism
is based on a misunderstanding of the formula, and it should be
disposed of quickly. That criticism is essentially that the data
required by the formula will not be available or that lawyers
should not have to be mathematicians. But the formula does not
require mathematical proof. For instance, the formula does not
require lawyers to introduce evidence of probability expressed in
mathematical terms or even evidence about dollar costs of safety
precautions.
Use of estimates. It is true, of course, that the plaintiff must
prove her case somehow, and in some instances she may be unable
to make a convincing case without showing some reliable evidence
that the defendant’s conduct created a substantial probability of
harm62 or that the defendant could have taken safety precautions
at a low dollar cost.63 But the Hand formula does not itself require
numerical evidence, although it illuminates the ways in which such
evidence is useful. In the great majority of cases, including Hand’s
own decision in Carroll Towing, the formula is applied to rough
estimates derived from practical everyday evidence.
A guide to evidence. Like many other legal rules, it may
represent less a guide to conduct than a guide for lawyers about
the kind of evidence that will be useful, whether or not that
evidence is quantified. A plaintiff’s lawyer, for example, can
attempt to demonstrate that the defendant could easily have
provided better safety without demonstrating the exact cost of
doing so, or that harm was highly probable because it had often
occurred in similar circumstances, even if the probability cannot be
expressed in a percentage. The formula also provides a meaningful
model for analysis by judges, even if judges must use estimates of
probabilities, costs, and benefits.64
277
Individual justice. One of the most fundamental criticisms

generated by rigorous application of the Carroll Towing test is that
it emphasizes social good too much and individual justice or moral
choice too little.65 It makes the rights of the individual plaintiff
depend in part upon what is good for society as a whole. In one
form or another, this is the most central argument against Hand’s
formula. Although the Hand formula does not call for use of actual
numbers like those used in the illustrations, and a complete set of
such numbers could seldom be produced in court, the formula does
definitely emphasize the importance of estimating social advantage
or wealth maximization in society at large by insisting that no one
should be required to spend more on safety than the sums saved by
those expenditures. Some thinkers may fear that weighing risks
and utilities turns “moral analysis into a bloodless form of
calculation” that simply involves plugging in numbers.66
Incommensurables. Another characteristic of the Hand test has
found disfavor in some quarters. At least as it has been developed
in economic theory, the Hand test asks us to reduce the utilities of
both parties to a common scale of dollars. The common scale is
important, because it permits comparison. However, the result is
that a broken leg is valued like a commodity; its worth is expressed
in dollars in the jury’s assessment of value based on medical costs,
wage loss, and pain. If that total value is only $10,000 but the cost
to the defendant to avoid the injury is $15,000, the defendant is not
negligent. But if the death of a human being is intractably
incommensurate with dollar costs of safer conduct, the common
scale, however elegant, is exactly the wrong scale.67 To some
extent, this criticism is meliorated by the fact that the jury is
allowed to decide the value of intangibles like pain and loss of
enjoyment, even though the jury must necessarily reduce those
values to dollar damages. It might also be meliorated by a “hybrid”
approach, as where qualitative values could be considered to
constrain the use of a pure dollar scale.68
Unworkable in some cases. Still another criticism is that some
kinds of cases seem to lend themselves only poorly to a rigorous
risk-utility analysis. For instance, when the defendant is charged
with a moment’s inattention or negligently forgetting to do
something necessary for safety, it is quite difficult to analyze the
costs to achieve better safety. What are the costs of remembering?
69 One scholar has put the point more strongly
278
by saying that where repeated safety efforts are required—as

where a driver must constantly keep a lookout—even reasonable
people will occasionally lapse, but that in such cases courts
routinely impose liability.70 The implication is that the risk-utility
balance cannot explain this liability and thus that the risk-utility
balance applies only to “durable precautions” such as designs,
plans, or systems for dealing with hazards.
Precautions against unknown risk. A different kind of
unworkability argument is that in some cases the defendant knows
there is some kind of risk but does not know its extent or what will
reduce the risk. In such a case, how much money should he spend
to get more information? Without knowing the magnitude or
severity of the risks, it will be difficult indeed to know how much to
invest in getting more information. This is routinely a problem for
manufacturers of new drugs, which usually carry risks the extent
of which may never be known.71
Perspectives for Evaluating the Hand Formula
(1) Although the Hand formula in Carroll Towing is usually
analyzed in economic terms, part of its operation can be viewed as
a moral proposition that you should treat others as you would treat
yourself.72 If you can save $100 of your own by spending $50, you
should and would do so. If you can save $100 of your own only by
spending $200, you would not make the expenditure. Only if you
should treat others better than you would treat yourself is there
reason to think you are wrong in failing to take the $200
precaution.73 Sometimes defendants are indeed under an
obligation to treat the plaintiff with special care arising from an
undertaking or special relationship. But where the defendant is not
guilty of misleading, has no special relationship with the plaintiff,
and does not owe more care by custom or his own undertaking, the
Hand formula can often be seen in moral rather than economic
terms. Indeed, utility itself, whether cast in economic terms or not,
can be seen to have a moral quality.74
(2) People can reasonably think that both the justifications and
the criticisms of the Hand formula are exaggerated. The formula
assuredly has its uses in the process of determining negligence, but
it may be more useful in some cases than others. Positive statutory
law displaces the formula in many cases. Relationships of the
parties may dictate duties or defenses in others. Custom may be
especially important in still others.
279
The formula can be seen as a default formula, to be used when

it is not trumped by something more important.
(3) Judges do in fact use some kind of risk-utility analysis, not
necessarily under that name and not necessarily with the rigor
that economic analysis would suggest. Most of the objections to the
Hand formula seem aimed at its comparison of dollar costs rather
than at the underlying idea that some kind of weighing of costs and
benefits is necessary.
(4) If all weighing of costs and benefits, risks and utilities,
were discarded, courts might be hard pressed to find any generally
applicable way of analyzing negligence. A judge’s conclusory
statements that the defendant did or did not behave reasonably
would not be satisfactory and would not much resemble anything
we would like to call law. However, it would be possible to weigh
costs and benefits, risks and utilities by appealing to the ideals of a
reasonable person who considers something besides dollar costs.75
Reasonable Expectations About the Care of Others
Jury estimating risks in light of safety efforts of others. Typically
the question of breach is a question for the jury. But sometimes it
is clear that an act is not risky enough to count as negligence
because the defendant could reasonably expect that other people
would minimize the risk, thus bringing it within tolerable
bounds.76 That seems especially obvious when the defendant
attempts to minimize the risk or shift responsibility by hiring or
relying upon a competent person to eliminate it.77 But the idea is
broader. It turns on nothing more than the defendant’s reasonable
expectations that others will make safety contributions. A driver
may not be negligent in driving through an intersection in
accordance with a green light, even if the driver cannot see traffic
approaching on side streets. There is a risk, but it is small in light
of the reasonable expectation that drivers approaching from a blind
side street would themselves exercise due care and follow the
traffic signal.78 A physician who leaves town while a patient still
requires care may be creating no risk at all if he arranges for a
substitute physician.79 A homeowner who knows that a small child
has access to his swimming pool may be reasonable in turning his
back if the child is being cared for by her mother.80 Conversely, if
the landowner knows parents are unaware of a risk to children,
harm to them is more likely and reasonable care may require a
warning.81 In all of these cases consideration
280
of reasonably expected safety efforts of others is appropriate

evidence. However, when reasonable minds could differ, the
question is one for the jury.
Jury estimating risks in light of the plaintiff’s ability to protect
herself. Sometimes the defendant’s conduct is not risky enough to
count as negligence because the defendant can expect the plaintiff
herself to avoid the harm and hence foresees no harm from his
actions. This is most commonly so when the defendant creates an
open and obvious danger that people can be expected to see and
avoid. The risks of a parked car, or a sprinkler head in the lawn, or
other obvious dangers,82 although representing foreseeable harms,
are nevertheless sometimes very small risks because most people
who might be hurt will see and avoid danger for themselves.
Similarly, the owner of a building who hires someone to repair the
roof may create a risk by not furnishing safety nets. Although the
owner could easily foresee harm from the repairer’s fall, the owner
might also expect that the repairer would take steps to provide her
own safety equipment or at least to ask for it if it is needed.83 The
jury can properly consider, then, the possibility that the
defendant’s conduct is not unreasonably risky because others,
including the plaintiff herself, may reduce the risk. Sometimes
courts consider this so clear that they take the issue from the jury
and decide for themselves that the defendant was not negligent
considering the probability that the plaintiff would avoid a known
danger.84
Jury estimating risks in light of risks others will add. It is not
true, of course, that one never need anticipate the negligence of
others. Sometimes that is the very thing the defendant should
foresee and protect against. The defendant who creates an obvious
risk cannot always expect that it will be avoided; a distracted
customer carrying a package might collide with an obstruction that
would ordinarily be obvious and avoidable.85 The defendant who
lends a car to an incompetent driver86 or who gives alcohol to an
intoxicated person or a minor87 creates a risk, perhaps quite
unreasonable, that the driver or the drinker will cause harm to
others. If the probability of injury is unreasonably high in light of
the harm that may result and the relatively low cost of avoiding it,
a jury’s finding of negligence is entirely appropriate.88
Estimation of costs and advantages. Even small risks may be
unreasonable and may count as negligence if they can be avoided
at little cost. Even large risks might be
281
justified if they carry with them even greater advantages. So

the jury must estimate, if it can, something about the costs of
greater safety and the advantages of continuing the defendant’s
conduct as it is. Sometimes evidence can elucidate such issues.
Evidence that the defendant repaired premises or changed his way
of conducting business after the plaintiff’s injury is not usually
admissible to show a standard of care, but if the defendant has
argued that a safer practice is costly, evidence that the defendant
has himself adopted the practice later can fairly be admitted to
show that, after all, the practice was in fact feasible and not too
costly.89
Sometimes it is easy to estimate that costs of greater safety will
be low, as where the defendant can make a product safer by
including a warning on its label or on a decal.90 Sometimes it is
even possible to obtain rather precise estimates of the cost of
greater safety.91 More commonly, risks cannot be precisely weighed
and juries and judges alike are expected to estimate costs in a very
broad manner. There are limits: the court’s own ball park estimate
may convince the court that the case must not be left to the jury at
all,92 or the court may conclude that general experience is not
enough to permit a reasonable cost estimate and therefore that the
plaintiff must introduce evidence on that subject or suffer a
directed verdict.93 In very many cases, however, the matter of cost,
like the matter of risk, is left to the jury’s evaluation without a
specific requirement of testimony.
C. CUSTOM
Custom is significant in the law in a number of ways. This
section primarily addresses the relevance of custom in helping the
jury determine whether, given a duty to use reasonable care,
conduct counts as “negligence.”
Custom as evidence of reasonable care. Evidence of customary
safety practices is admissible as tending to show that conduct in
violation of the customary safety precautions may violate the
reasonable person standard of care.94 Under this rule, custom is
only evidence of negligence; it is not conclusive because the
standard of care remains that of the reasonable person under the
circumstances.95 Custom itself becomes
282
the standard of care only in specialized situations, mainly

involving professional malpractice96 and negligent sports
injuries.97
Direct bearing of custom on the negligence issue. Sometimes,
custom evidence has a direct bearing on the negligence issue. It is
possible to believe that a safety custom reflects the judgment and
experience of many people and thus directly suggests how a
reasonable person might behave under the circumstances.
Customary behavior, the argument goes, is usually not negligent,98
or, more specifically, such behavior tends to suggest the proper
balance of risks and utilities.99
The varied uses and functions of safety custom as evidence in
negligence analysis. Custom—or even practices that do not rise to
the level of custom—might also tend to prove something significant
but less global than the ultimate conclusion of negligence.
First, the fact that an industry often takes a particular
precaution is excellent evidence that the precaution is feasible and
not excessively costly.100 Thus, the custom points to one of the
elements in the risk-utility balance, suggesting that the cost of
safety is not disproportionately high compared to potential for
injury. The logic of this point holds even if the practice does not
count as a custom for some reason and even if the precaution is
adopted without a safety purpose in mind. A custom that develops
after the plaintiff’s injury might also show feasibility.101
Second, if a common practice is followed for safety purposes,
even if irregularly, evidence of that practice shows that harm
would be reasonably foreseeable if the practice were not followed.
Foreseeability alone does not establish negligence, but it is a
necessary step in doing so. Custom can play a significant role in
establishing this step, even if it is only a practice followed by the
defendant itself or some other actors in the same line of activity.
That is true, however, only if the common practice was adopted for
safety reasons; otherwise it might show feasibility of the practice
but not foreseeability of harm. If the custom is offered to show that
a class of people like the plaintiff would foreseeably encounter
danger created by the defendant, however, there is no reason to
require that the custom be related to safety, but every reason to
require evidence that the defendant was aware of the custom.102
283
Custom as a sword. Evidence of a custom may be used either as

a sword by the plaintiff or a shield by the defendant.103 Used as a
sword, the plaintiff can show the defendant’s violation of a safety
custom as some evidence that the defendant failed to act as a
reasonable person under the circumstances.104 For example, if a
landlord uses ordinary glass as a shower enclosure when the
custom of landlords generally is to use tempered glass, the
existence of the custom is admissible in a suit by a tenant injured
by the broken glass and that evidence may help persuade the trier
that the landlord was negligent.105
In some cases, evidence of the custom is presented by an
expert,106 and the custom rule can also apply if the custom is
institutionalized in even advisory standards of the relevant
industrial association.107
Custom as a shield. As a shield, the defendant can show his
compliance with custom as evidence that his conduct was that of a
reasonable person.108 Where the cost of better safety is low
compared to the danger, however, the custom of an industry or line
of business to ignore safety precautions is likely to be
unpersuasive.109 Similarly, the plaintiff who is charged with fault
is permitted to show that what he did was in accordance with
custom and hence arguably, but not conclusively, evidence that he
exercised due care.110
Custom and duty. A safety custom is most commonly important
in assisting the jury’s evaluation of the defendant’s conduct as
negligent or not negligent, and courts have sometimes broadly
generalized this fact to say that custom does not establish a duty
where none exists otherwise.111 However, in some instances
custom can bear directly on the question of the defendant’s duty.
Judges do recognize that customs, expectations of the parties, and
social values can be important in determining whether to recognize
a duty of care or not. For example, the defendant ordinarily owes
no duty to
284
take positive action to assist a plaintiff,112 but if parties enter

into a transaction in light of industry customs, those customs may
impose a duty on one of them that would not exist without the
custom. And a custom usually followed by the defendant itself may
show that the defendant assumed a duty of care and is bound by it.
For example, in the absence of regulation, a natural gas supplier
might conceivably owe no duty to odorize its gas for safety, even
though smell would be an indication of dangerous gas leaks. Yet, if
it has no duty but customarily does odorize the gas, users may
come to rely on the custom, and once it is in place, the company
would be under a duty to continue the practice until adequate
notice of discontinuance is given.113 The defendant’s custom may
also indirectly alter the plaintiff’s status and thus create a duty, as
where the defendant customarily permits persons like the plaintiff
to use his land so that they are no longer classed as trespassers
who have no rights.114 Similarly, courts may consider social
customs, or what they believe to be social customs, in determining
whether there is a duty to protect the plaintiff from third
persons.115
§ 12.7 Limitations on the Use of Custom and
Practice
Customary violation of statute. A custom to provide less care
than required by the statute ordinarily cannot be relied upon by
the defendant to avoid the statutory standard or to excuse
violation.116 In the case of a minor’s violation of statute, however,
the courts themselves often reject the statutory standard in favor
of the common law protective standard for minors. Consequently
courts may permit the minor to rely upon a statute-violating
custom.117 When the custom requires greater care than is required
by statute, custom is presumably admissible on the issue of
negligence because the statutory standard is usually a minimum,
not a maximum.118
Custom to provide less care than that dictated by risk-utility.
When courts say that custom is not conclusive on the negligence
issue, they necessarily mean that custom is trumped by the
ordinary care standard, which in turn is often assessed by
reference to the risk-utility balance. So if a universal custom were
highly risky and likely to cause great harm but could be avoided by
an expenditure of $1, the jury would be permitted to find
negligence in spite of the exculpatory custom.
Custom to provide more care than that dictated by risk-utility.
When a custom clearly calls for more care than would be dictated
by the risk-utility balance, there is
285
some confusion. Although a company’s internal policies—which

represent a species of unilateral custom as discussed in the next
section—may be admissible as evidence of negligence,119 the
highest court of New York has said that such policies cannot be
used as evidence of negligence if they “require a standard that
transcends reasonable care.”120 On this, several points must be
considered. First, since custom is evidence of what reasonable care
requires, it is not easy to say that a custom “requires” more than
reasonable care, unless the point is so clear that reasonable jurors
could not find otherwise. Second, if custom does somehow suggest
that more than reasonable care is “required,” the higher care
suggested by the custom may still govern parties who bargained
with the custom in mind as the governing standard.121
Non-safety customs: scope of risk. A custom in the community,
no matter how well established, is not necessarily related to safety
at all. It may be based upon cultural or other preferences. Many
churches do not burn candles, but their reasons for leaving candles
out of their services are most likely related to religious and stylistic
preferences, not to any fear of burning the church down. Violation
of a custom that does not arise from considerations of safety may
show something important about negligence, notably feasibility of
following the custom. But it does not directly establish negligence
nor does it, by itself, show that the harm incurred by the plaintiff
was foreseeable. Accordingly, the non-safety custom may be held
irrelevant in particular cases.122
Ambiguities: characterizing custom and its scope. A custom may
be certain and, at the same time, its meaning is doubtful. Suppose
that it is customary to include certain safety features in bridges, all
of which were designed for public use. Is the feature a custom
about bridges, or a custom only about bridges designed for public
use? The Iowa Court held that the jury should not be instructed to
consider customs in public bridge design in determining negligence
of a private bridge owner, in the absence of testimony that showed
the public bridge custom had also become a custom in private
bridge cases.123 Perhaps this is not a subject suited to simple rules.
The meaning of some ambiguous conduct, like the meaning of some
ambiguous words, can be sorted out by the jury if reasonable
people could differ. So in appropriate cases, evidence of the bridge
safety custom might be admissible if it were coupled with evidence
that the cost of the safety feature was low, or that it was well-
known, or otherwise adaptable to privately owned bridges.
286
The sometime rule of uniform practice. Some courts have said

that custom evidence is not admissible to prove negligence unless
the custom is uniform, well-known, widely followed, or
notorious.124 More moderately, it has been said that the alleged
custom must be common and not merely a sporadic or occasional
practice.125 These limitations may have had their origin in the
belief, no longer followed, that the legal effect of recognizing
custom was to create a new standard of care and not merely
evidence to be considered. With the adoption of the rule that safety
customs are only some evidence of negligence, the widespread
usage requirement has become less justifiable. However, even
today, the limitation may be appropriate in some cases, as where
widespread recognition of a custom is needed to show the
defendant’s awareness of, or the plaintiff’s reliance on the
custom.126
Uniform practice not always required. The uniform practice rule
is not always followed.127 And, as shown in the next section, the
uniform or widespread practice rule is not followed when courts
allow the jury to consider the defendant’s deviation from its own
past practices. In addition, the uniform practice rule has little
logical application where an industrial safety practice is introduced
in evidence only to show that better safety was feasible. Since
feasibility is a matter of cost, not defendant’s awareness, there is
no reason to require especially widespread custom; adoption of a
safety practice by others similarly situated tends to show it is not
too costly. A custom not universally adopted also tends to show
that the defendant could reasonably have foreseen the danger,
since others did so, even if the defendant has never heard of the
practice.128 Much the same can be said when the evidence is
produced to show that the plaintiff reasonably and foreseeably
relied on the defendant’s own practices so that the defendant may
have been negligent in discontinuing a safety practice without
warning,129 or that the plaintiff reasonably relied upon the safety
practice and hence was not chargeable with assumed risk or
comparative fault.130
287
§ 12.8 Private Standards: Defendant’s Own

“Customs” or Practices
Defendant’s practices as a sword for the plaintiff. While the
defendant’s internal rules, procedures or past practices cannot
generally be used as a shield for the defendant, those internal rules
may be admitted on behalf of the plaintiff to show that the
defendant who was under a duty to exercise reasonable care131
recognized the danger and that customary conduct represented a
means of reducing it.132 The defendant’s internal rules may even
be introduced as evidence of negligence because they bear on care
that a reasonable person would provide.133 Such rules do not
themselves ordinarily count as the standard of care.134 However,
when the defendant’s liability is based upon its contract or
undertaking to use a given standard of care, as in the case of a
hospital treating a patient, the defendant’s own rules may reflect
the standard of care owed.135 And the defendant’s own rules or
practices become a virtual standard when the defendant should
foresee that the plaintiff will rely upon continued adherence to
those rules and that the plaintiff will be endangered when the
rules are ignored.136 The defendant’s past practices may even
create contractual expectations that set standards. If the plaintiff
contracts to lease premises from a landlord that has provided a
security guard in the past, the landlord’s withdrawal of that guard
may be negligence under the standard impliedly set by the parties
themselves.137
Strangers to community custom. If custom should have special
importance when the plaintiff and defendant have consensually
accepted it, it may be unfair to give any weight at all to custom
when one party is a stranger to it.138 A community custom to fire
shotguns in the air at midnight on New Year’s will hardly assist
the defendant whose customary blast brings down a passing
balloonist who is in no way privy to the custom. On the other hand,
if the plaintiff asserts that the defendant violated a safety custom,
288
the violation may be quite relevant, whether or not the plaintiff
was a stranger. Suppose the passing balloonist is injured because
the defendant’s factory explodes when the defendant ignores a
customary safety precaution. The balloonist is definitely a
stranger, in no consensual or special relationship to the factory
owner, but if the balloonist is a person within the risk, the
violation of the safety custom is relevant to the issue of the
defendant’s want of care.
Reliance. In some instances, parties enter transactions, formally
or informally, in the expectation that custom will be followed and
the custom may thus become a part of their deal. The informal
version of this idea has already been mentioned—the plaintiff may
reasonably act in reliance on the defendant’s own safety “custom”
or practice in some cases, which would make the custom critical in
determining negligence.
Bargaining in light of custom. In other cases, too, although not
all, the plaintiff and defendant are members of the same
community of custom and expect the custom to apply to their
conduct. For example, they are both part of the same geographical
or business community in which the custom is followed, or they are
entering into consensual transactions with each other on the basis
of the same industrial custom. In such cases, their reasonable
expectations of each other are largely or perhaps wholly dictated by
the known custom rather than by reasonable care judged in the
abstract; consequently it may be appropriate to give the custom
very great weight, so much so that that custom might even
delineate a duty to take action where none existed otherwise.139 If
we ship our goods by way of a barge to be towed by your tug, we
might be understood to accept the customary care that goes with
towing barges unless we contract for a different standard of care.
At least that is true where we know the customary standard or if
you reasonably believe that we know it. Cases like that are in fact
very similar to cases in which the defendant’s duty of care is
limited because the plaintiff assumes the risk or expanded because
of the plaintiff’s reliance on the defendant’s safety practices.
Bargaining—custom as a sword. Great weight might also be
given to custom used as a sword when the parties are both
members of the same custom community. As Professor Morris
argued, one who contracts for the defendant’s services is entitled to
expect those services to be delivered with the customary safety.140
In the same way, known safety customs in the design or
manufacture of products may bear heavily on the question of
whether those products were defective.141 Professor Epstein has
argued that custom is or ought to be the standard of care and not
merely evidence of negligence when the parties have bargained
against a background of custom.142 That goes further than the rule
usually stated by the courts, but it is surely true that some
consensual
289
relationships may imply an agreed-upon standard that might be

something quite different from the standard of the reasonable
prudent person.
D. STATUTORY COMPLIANCE
General rule: not a defense. The fact that the defendant has
complied with a statute does not ordinarily indicate that the
defendant was not negligent. The trier of fact may find that,
although the defendant complied with the statutory directives, he
should have done even more to attain reasonable levels of
safety.143 The point is easy to see when it comes to speed limits.
Although the speed limit may be 60 m.p.h., under some
circumstances during inclement weather reasonable care requires
a speed of no more than 30.
Admissible as evidence. On the other hand, the defendant’s
compliance with a statute that thoroughly regulates the behavior
in question tends to support the defendant’s argument that he is
not negligent. So the defendant’s compliance may be evidence for
the trier to consider on the negligence issue, even though it is not
conclusive.144
Bases for the rules. These rules are a product of our
understanding about how statutes work and how they are meant to
work. Most statutes and even regulations are relatively permanent
and relatively abstract; they cannot take into account the
particular concerns of individual cases. They aim at minimum
standards but are not meant to establish the outer limits of the
defendant’s safety responsibilities. When it comes to technological
standards, they are quickly outdated with no guarantee that the
legislature or regulators will have time or information necessary to
update them. Beyond that, many statutes are written in response
to lobbying efforts of the industry they purport to regulate, and
they are not likely to represent a balanced attempt by neutral
parties to achieve appropriate safety. For these reasons and many
others, including the practical problems of interpreting and
applying statutes, compliance with a statute cannot ordinarily
count as a defense.145
Exceptional cases. Even so, legislators or regulators can
expressly provide that the compliance with a particular statute is a
complete defense. And what legislators could provide in express
terms, they can also imply. In rare cases, courts may conclude that
in spite of the general rule to the contrary, compliance with
statutory standards is a complete defense, either because the
statute itself so implies or because the court concludes as a matter
of law that on the facts of the case compliance necessarily shows
reasonable care.146
________________________________
1 The elements are summarized in § 9.5. The breach question is
often referred to as “the negligence question.” Thus the term “negligence”
is used to describe both the full cause of action and the single element of
breach.
Harms) § 3 (2010).
3 See § 12.4.
4 E.g., Serio v. Merrell, Inc., 941 So.2d 960 (Ala. 2006) (contributory
negligence of plaintiff for failing to keep proper lookout); Tadros v. City of
Omaha, 269 Neb. 528, 694 N.W.2d 180 (2005).
5 E.g., Mississippi Dep’t of Pub. Safety v. Durn, 918 So.2d 672
(Miss. 2005).
6 E.g., Davidson v. Lindsey, 104 S.W.3d 483 (Tenn. 2003).
7 McQuaig v. Tarrant, 269 Ga.App. 236, 603 S.E.2d 751 (2004) (“the
mere fact that an accident happened and the plaintiff may have sustained
injuries or damages affords no basis for recovery against a particular
defendant unless the plaintiff carries the burden of proof and shows that
such accident and damages were caused by specific acts of negligence on
the part of that defendant”); Santiago v. First Student, Inc., 839 A.2d 550
(R.I. 2004) (passenger in school bus injured when bus collided with car at
an intersection, but no evidence showed any particular actions of the
driver; summary judgment for the defendant affirmed).
Emotional Harm) § 3 cmt. j (2010) (elaborating this point with other
examples and comments).
9 See, e.g., Parsons v. Crown Disposal Co., 15 Cal.4th 456, 936 P.2d
70, 63 Cal.Rptr. 2d 291 (1997) (foreseeability alone is not enough; court
must determine whether conduct at issue is sufficiently likely to result in
the kind of harm inflicted); Lowery v. Echostar Satellite Corp., 160 P.3d
959 (Okla. 2007) (similar).
10 Rallis v. Demoulas Super Mkts., Inc., 159 N.H. 95, 101, 977 A.2d
527, 532 (2009) (plaintiff must “show that the defendant’s conduct created
a foreseeable risk of harm; in other words, it was reasonably foreseeable
that an injury might occur because of the defendant’s actions or
inactions”). See also Restatement Third of Torts (Liability for Physical and
Emotional Harm) §§ 3 & 7 (2010); Restatement Second of Torts § 291
(1965).
11 See § 10.12 (knowledge of a reasonable person).
12 Emanuel v. Great Falls Sch. Dist., 351 Mont. 56, 209 P.3d 244
(2009) (“[i]f a reasonably prudent defendant can foresee neither any
danger of direct injury nor any risk from an intervening cause he is simply
not negligent”); Miller v. David Grace, Inc, 212 P.3d 1223 (Okla. 2009)
(foreseeability an element of negligence); Behrendt v. Gulf Underwriters
Ins. Co., 318 Wis.2d 622, 768 N.W.2d 568 (2009) (“lack of foreseeable risk,”
no negligence).
13 Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009) (“negligence
may be established where it is shown that by exercise of reasonable care,
the defendant might have foreseen that some injury would result from his
act or omission, or that consequences of a generally injurious nature might
have been expected”).
14 See n. 9, supra.
15 Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006).
16 Jutzi-Johnson v. United States, 263 F.3d 753, 756 (7th Cir. 2001)
(“foreseeable, in the sense of probable”); Edwards v. Honeywell, Inc., 50
F.3d 484, 491 (7th Cir. 1995) (“too unusual, too uncertain, too
unreckonable to make it feasible or worthwhile to take precautions
against”); Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W3d 644 (2001);
Healthone v. Rodriguez, 50 P.3d 879 (Colo. 2002) (similar); Doe Parents
No. 1 v. State Dep’t of Educ., 100 Haw. 34, 58 P.3d 545 (2002).
17 Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009) (reasonable
care “often requires the consideration of unlikely but serious
consequences”).
18 In Romine v. Village of Irving, 336 Ill.App.3d 624, 783 N.E.2d
1064, 270 Ill. Dec. 764 (2003), the court said that police officers could not
foresee criminal acts in general and in particular drunken driving by
intoxicated persons they ejected from a fair. Since police are in the
business of dealing with criminal activity, and the court itself noted that
intoxicated driving was all too common, the court was presumably using
the “foreseeability” locution to mean only that probability of harm was
remote or even that policy rather than foreseeability reasons counseled
against liability. In A.H. v. Rockingham Publ’g Co., Inc., 255 Va. 216, 495
S.E.2d 482 (1998), a young teen paper boy was sexually assaulted in early
morning hours while delivering papers. His employer, the newspaper
knew of three other similar sexual assaults on its carriers in a town of
30,000, but the court said that such assaults were nevertheless
unforeseeable. In such uses of the term, it seems impossible to think that
“unforeseeable” is a literal psychological description. It seems instead to
mean that the court believed, rightly or wrongly, that the risk or
probability was small enough to justify the newspaper’s failure to protect
the boy, even by a warning.
19 See Machado v. City of Hartford, 292 Conn. 364, 972 A.2d 724
(2009) (defects of which town “should be aware” equated with town’s
“actual or constructive knowledge” of defect); Rallis v. Demoulas Super
Mkts., Inc., 159 N.H. 95, 977 A.2d 527 (2009) (equating constructive notice
danger and “should have known”).
20 E.g., Castro v. Hernandez-Davila, 694 S.W.2d 575 (Tex. App.
1985) (intoxicated driver who drove into apartment building, causing a
wall to collapse).
21 C.H. v. Los Lunas Schools Bd. Of Educ., 852 F. Supp.2d 1344
(D.N.M. 2012) (foreseeability in the duty/breach context is “a minimal
threshold legal requirement,” while in the proximate cause context is a
“much more specific factual requirement”). See also B.R. & C.R. v. West,
275 P.3d 228 (Utah 2012).
22 For courts that have imported foreseeability questions into the
duty issue, judges may take control of the issue.
23 Ballard v. Uribe, 41 Cal. 3d 564, 715 P.2d 624 (1986); Pulawa v.
GTE Hawaiian Tel., 112 Haw. 3, 143 P.3d 1205 (2006); Brokaw v.
Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386 (Iowa 2010); Fresco
v. 157 E. 72nd St. Condo., 2 A.D.3d 326, 769 N.Y.S.2d 536 (2003).
24 Barnes v. U.S., 485 F.3d 341 (6th Cir. 2007) (TSA not negligent for
not providing a chair for an airline passenger who fell while taking off her
shoes in a security area; court stressed the “apparently small likelihood
and gravity of the potential harm”); Lowery v. Echostar Satellite Corp.,
160 P.3d 959 (Okla. 2007) (even though risk of harm was foreseeable, the
defendant is not liable unless its conduct unreasonably endangered the
plaintiff); see Restatement Third of Torts (Liability for Physical and
25 Many cases exemplify or state the point. In Clark v. St. Dominic-
Jackson Mem’l Hosp., 660 So.2d 970 (Miss. 1995), the court stated
succinctly that although taking unnecessary chances might be negligence,
“[t]aking a 1% chance when necessary might be exemplary….”
26 See Gregory C. Keating, Reasonableness and Rationality in
Negligence Theory, 48 Stan. L. Rev. 311, 383 (1996).
27 Richard A. Posner, A Theory of Negligence, 1 J. Leg. Studies 29,
32 (1972).
28 For instance, courts traditionally said that landowners owed only
limited duties to trespassers, such as the duty not to set a trap or
wantonly injure them. Some courts have now said that landowners owe a
duty of reasonable care to everyone, including trespassers. Under that
rule, it may be that the trespasser-landowner relationship is still
important in determining what safety precautions are reasonably
required. See Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55,
354 N.E.2d 794 (1976).
29 Chambers v. Village of Moreauville, 85 So.3d 593 (La. 2012)
(noting on issue of negligence in failing to repair a sidewalk that “the
utility of the sidewalk is high,” “the risk of harm created by the deviation
is low,” and “it would be fiscally exorbitant to require municipalities to
correct all sidewalk deviations of one-and-one-quarter to one-and-one-half
inches”).
30 See Doe Parents No. 1 v. State Dep’t of Educ., 100 Haw. 34, 58
P.3d 545 (2002) (“Against this probability, and gravity, of the risk, must be
balanced in every case the utility of the type of conduct in question.”);
Dauzat v. Curnest Guillot Logging Inc., 995 So.2d 1184, 1186–87 (La.
2008) (in determining unreasonable risk the courts consider: “(1) the
utility of the complained-of condition; (2) the likelihood and magnitude of
harm, which includes the obviousness and apparentness of the condition;
(3) the cost of preventing the harm; and (4) the nature of the plaintiff’s
activities in terms of its social utility, or whether it is dangerous by
nature”); Gilhooley v. Star Mkt. Co., Inc., 400 Mass. 205, 508 N.E.2d 609
(1987) (“likelihood of injury to others, the seriousness of the injury, and
the burden of avoiding the risk”); Gaudreau v. Clinton Irrigation Dist., 30
P.3d 1070, 1074 (Mont. 2001); see Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 3 (2010); Restatement Second of Torts §
91 (negligence if magnitude of the risk outweighs the utility of the
defendant’s act).
31 Giant Food, Inc. v. Mitchell, 334 Md. 633, 640 A.2d 1134 (1994)
(risk of harm weighed against protection of property). The usefulness or
utility of conduct actually includes the costs saved by not adopting some
other course of conduct, but it is sometimes clearer if utility and cost of
greater safety are stated separately.
Emotional Harm) § 18 cmt. a (2010).
33 See Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 766 N.E.2d
1118, 262 Ill.Dec. 815 (2002) (burden on pharmacist to warn that
prescription is contraindicated is small, duty exists).
34 E.g., Ritchie v. Glidden Co., 242 F.3d 713 (7th Cir. 2001).
35 Cf. Blue v. Environmental Eng’g, Inc., 215 Ill.2d 78, 828 N.E.2d
1128, 293 Ill.Dec. 630 (2005) (design defect case; custom of the industry).
36 Many opinions, including contemporary ones, are focused on
whichever factor was relevant in the particular dispute, so that some
discuss probability, while others discuss the small injury expected or the
burden of avoiding it or the advantages of the risky conduct. E.g., Beatty v.
Central Iowa Ry. Co., 58 Iowa 242, 12 N.W. 332 (1882) (railroad
constructed almost parallel to road created risks that horses would bolt
and injure their riders, but “All persons must accept the advantages of this
mode of intercommunication with the danger and inconveniences which
necessarily attend it”); Chicago, B & Q Ry. Co. v. Krayenbuhl, 65 Neb. 889,
903, 91 N.W. 880, 882 (1902) (weighing danger of machinery against its
benefits).
37 Indiana Consol. Ins. Co. v. Mathew, 402 N.E.2d 1000 (Ind. Ct.
App. 1980) (defendant fled when mower caught fire in the plaintiff’s
garage, instead of pushing it out; the garage burned, but the defendant
was not negligent because the expected harm to the garage was less than
the expected harm to the defendant); Hoffman v. Union Elec. Co., 176
S.W.3d 706 (Mo. 2005) (public utility did not advise potential rescuers that
downed line was de-energized so that rescuers might save person trapped
in a car entangled with the line; but danger of line’s being re-energized
justified utility’s silence; conceiving the issue as one of duty rather than
negligence); Sergent v. City of Charleston, 209 W.Va. 437, 549 S.E.2d 311
(2001) (police chase was not negligent in light of the costs (dangers) of not
apprehending serious felons who had already fired weapons).
Harm) § 3 cmt. j (2010), notes that general activities—driving, building
railroads, selling products are examples—can seldom count as negligence.
The burden of proving that the railroads should not be operated at all
would be extremely difficult and might present administratively imposing
tasks for the courts. Consequently, the focus in most cases is on the
defendant’s ability to reduce risks of the activity without bringing it to a
halt.
39 For example, in Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209
(2001), the court thought that a restaurant would not be negligent for
failing to train its staff in the Heimlich maneuver because of the low
probability that diners would choke on a regular basis. Courts sometimes
address this probability issue by saying that harm was not very
foreseeable. That locution is infelicitous, but its point seems to be that
harm may not be sufficiently probable to warrant safety measures.
40 John B. v. Sup. Ct., 38 Cal.4th 1177, 137 P.3d 153, 45 Cal.Rptr. 3d
316 (2006) (“the gravity of the harm from HIV infection is a justification
for imposing a greater duty of care on those who are infected”).
41 Cf. Parsons v. Crown Disposal Co., 15 Cal.4th 456, 936 P.2d 70, 63
Cal.Rptr.2d 291 (1997) (noise of a garbage truck frightened nearby horse,
which threw its rider; a defendant is not negligent “merely by causing a
machine to produce noises or emissions that are necessary to the regular
operation of the machine there shall be no liability for fright to a horse and
consequent damages … when all that the plaintiff can point to is that a
socially beneficial machine … properly was used in the manner for which
it is designed”).
42 Cf. Gooden v. City of Talladega, 966 So.2d 232 (Ala. 2007) (police
officer not negligent for conducting high-speed chase in which fleeing
motorist was killed, where motorist’s reckless driving presented a
substantial threat to others on the roadway).
43 Harper, James & Gray § 16.9, pp. 477–78.
44 Among the writings discussing this or similar ideas, see Mark A.
Geistfeld, Social Value as a Policy Based Limitation of the Ordinary Duty
to Exercise Reasonable Care, 44 Wake Forest L. Rev. 900 (2009); Gregory
C. Keating, Reasonableness and Rationality in Negligence Theory, 48
Stan. L. Rev. 311, 383 (1996) (offering a detailed theory for measuring
“reasonableness”, based on ideas of reciprocity and cooperation among free
and equal individuals, rather than “rationality”, based on maximizing
aggregate human values as expressed in dollars); Richard Wright, The
Standards of Care in Negligence Law in Philosophical Foundations of Tort
Law 249 (David G. Owen, ed. 1995). Professor Simons describes a number
of ways in which one could weigh risks and utilities, for example, by
saying that risk-taking is justified only if the utility of the risk is very
much greater than the harm, although he disapproves this approach. See
Kenneth W. Simons, Negligence, 16 Soc. Phil. & Pol’y 2, 52, 78–80 (1999).
45 Emphasizing the rigor, structure, or form, see Michael D. Green,
The Schizophrenia of Risk-Benefit Analysis in Design Defect Litigation, 48
Vand. L. Rev. 609 (1995); Barbara Ann White, Risk-utility Analysis and
the Learned Hand Formula: A Hand that Helps or a Hand that Hides?, 32
Ariz. L. Rev. 77 (1990).
46 Among the cases expressly recognizing the structured approach
embodied in the Hand formula discussed below, see, e.g., Levi v.
Southwest La. Elec. Membership Coop., 542 So.2d 1081 (La. 1989);
Chicago Title Ins. Co. v. Allfirst Bank, 394 Md. 270, 291, 905 A.2d 366, 378
(2006) (multiply magnitude of potential harm by probability of harm and
weigh the result against the burden of exercising care). For a survey of
cases and citations to many of them, see Stephen G. Gilles, The Invisible
Hand Formula, 80 Va. L. Rev. 1015, 1016 n. 4 (1994).
47 United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).
48 The scope of risk rules (often called rules of proximate cause or
legal cause or intervening cause) bar claims that are not considered within
the risk created by the defendant’s negligence. The degree of risk or
magnitude of potential harm is irrelevant if the defendant’s act is not
considered to be a proximate cause.
49 See Restatement Second of Torts § 291 (1965) (“risk of harm to
another”).
50 Robert Cooter & Ariel Porat, Does Risk to Oneself Increase the
Care Owed to Others? Law and Economics in Conflict, 29 J. Leg. Stud. 19
(2000). Restatement Third of Torts (Liability for Physical and Emotional
Harm) § 3 cmt. b (2010) supports this view.
51 See Bernier v. Boston Edison Co., 380 Mass. 372, 403 N.E.2d 391
(1980) (concluding that risks to pedestrians might be greater and hence
that the defendant could be found to be negligent in constructing pole that
would fall on slight impact).
52 See Richard Posner, A Theory of Negligence, 1 J. Leg. Stud. 29
(1972). Posner used examples similar to those given here.
53 See Cooter & Porat, supra n. 50 at 28.
54 But see Johnson v. City of Milwaukee, 41 F.Supp. 2d 917 (D. Wis.
1999) (discussed in Cooter & Porat, supra n. 50) (reasonableness of
officer’s decision to draw a gun which later discharged to be judged in part
by increased safety for officer as well as for suspect if gun was not drawn
under the particular circumstances).
55 The formula is mainly used by judges reviewing evidence to
determine a directed verdict or motion for summary judgment, and only
then when one party makes an argument based on the formula or some
part of it. Juries are routinely instructed in the reasonable person
standard without explanation about risk-utility balancing. See Stephen G.
Gilles, The Invisible Hand Formula, 80 Va. L. Rev. 1015 (1994)
(concluding that the Hand formula is “underenforced” because of omissions
to instruct the jury in its terms). Juries are instructed on probability
(under the rubric of foreseeability) and on commensurate care, a notion
that embodies part of the risk-utility weighing. Juries may also hear
lawyers’ arguments about costs and benefits of the defendant’s conduct
and understand the relevance of evidence on those issues, such as evidence
that the defendant could have achieved safety by a small expenditure.
Negligence Theory, 48 Stan. L. Rev. 311, 342 (1996) (people have “diverse
and incommensurable conceptions of the good,” and those at risk generally
do not value the injurer’s aims and benefits as the injurer does, a theme
that appears in several places).
57 In Ritchie v. Glidden Co., 242 F.3d 713 (7th Cir. 2001), the court
refused to apply the sophisticated user rule that would relieve a
manufacturer of providing a warning directly to endangered users of its
products; instead, the court invoked the risk-utility approach and left it to
the jury to consider whether the manufacturer should have provided a
warning in the light of the low cost on the one hand and the danger on the
other.
58 The cost of a capital investment may be hard to figure not only
because it may avoid many injuries during its effective life but also
because the defendant’s expenditure is a cost for which the defendant
receives some compensating gain in the form of increased capital assets.
59 See Richard Posner, A Theory of Negligence, 1 J. Leg. Stud. 29
(1972); Richard Posner, Economic Analysis of Law 163 ff. (4th ed. 1992).
60 See Mark Grady, A New Positive Economic Theory of Negligence,
92 Yale L. J. 799 (1983) (since injurers cannot always know what level of
precaution courts will find acceptable, the formula must be applied in a
different way).
61 E.g., Daniel Shuman, The Psychology of Deterrence in Tort Law,
42 Kan. L. Rev. 115 (1993).
62 E.g., Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349 (6th Cir.
1992) (statistical evidence on probability that Bendectin caused fetal limb-
reduction was inadequate).
63 McCarty v. Phesant Run, Inc., 826 F.2d 1554 (7th Cir. 1987)
(plaintiff claimed hotel should have provided better locks, but put on no
evidence as to costs). In contrast, in Grimshaw v. Ford Motor Co., 119
Cal.App.3d 757, 174 Cal. Rptr. 348 (1981), the plaintiff was able to show
exact dollar costs of improvements that would have prevented the Pinto
car from engulfing its occupants in flames. The evidence was highly
effective and the plaintiffs recovered. In addition to direct cost evidence,
the plaintiff’s lawyer might be able to produce evidence of customary
precautions. Such evidence tends to show both foreseeability of harm and
the relative feasibility of a safety precaution.
64 Levi v. Southwest La. Elec. Membership Coop., 542 So.2d 1081
(La. 1989); see David G. Owen, Defectiveness Restated: Exploding the
“Strict” Products Liability Myth, 1996 U. Ill. L. Rev. 743 (1996) (“This type
of ‘cost-benefit’ or ‘risk-utility’ analysis may be problematic if relied upon
excessively as a mechanical device for producing automatic ‘right’ answers,
but it nicely describes the decisional calculus that lies at the heart of
products liability law in particular and accident law in general.”).
65 See, e.g., Bamford v. Turnley, 3 B.&S. 67, 122 Eng.Rep. 27 (Exch.
Ch. 1862) (Judgment of Bramwell B.) (arguing that defendant must use
the gains from his activities to pay the costs of harms inflicted on others);
Gregory C. Keating, Reasonableness and Rationality in Reasonableness
and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996); George
P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537
(1972).
66 See Kenneth W. Simons, Negligence, 16 Soc. Phil. & Pol’y 2, 52, 80
(1999) (but suggesting that “qualitative” balancing without using dollar
costs would avoid this problem).
67 See Barbara Ann White, Risk-utility Analysis and the Learned
Hand Formula: A Hand that Helps or a Hand That Hides?, 32 Ariz. L. Rev.
77, 111 n. 192 (1990); Michael D. Green, The Schizophrenia of Risk-Benefit
Analysis in Design Defect Litigation, 48 Vand. L. Rev. 609 (1995)
(emphasizing incommensurability and the impracticability of making a
jury argument that human lives are worth less than the cost of a safety
feature on an automobile); Richard Wright, The Standards of Care in
Negligence Law in Philosophical Foundations of Tort Law 249 (David G.
Owen, ed. 1995).
68 Kenneth W. Simons, Negligence, 16 Soc. Phil. & Pol’y 2, 52, 86
(1999) (suggesting that under the Hand test, a value must be placed on
human life when it is at risk, but that if the risk is death by fire, the trier
could also consider whether such a death is particularly dreaded).
69 See Izhak Englard, The System Builders: A Critical Appraisal of
Modern American Tort Theory, 9 J. Leg. Stud. 27 (1980); Mark Grady,
Why Are People Negligent? Technology, Non-Durable Precautions, and the
Medical Malpractice Explosion, 82 Nw. U. L. Rev. 293 (1988). Judge
Posner himself may have implied the jury could figure a forgetful (or
sleepy) person’s cost “of schooling herself to greater vigilance.” Wassell v.
Adams, 865 F.2d 849 (7th Cir. 1989).
70 Grady, Res Ipsa Loquitur and Compliance Error, 142 U. Pa. L.
Rev. 887 (1994). Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 3 cmt. k (2010) addresses the problem arising from the
idea that even reasonable persons are fallible on occasion by saying that
the trier must focus on the occasion in question, not on fallibility over
time.
71 David Barnes & Lynn Stout, The Economic Analysis of Tort Law
38 (1992), suggests something like this, reading the Hand formula to mean
“victims suffer so that actors may prosper,” and suggesting that in non-
reciprocal risk cases like the manufacturer-consumer case, using the Hand
formula might have “distributional” implications.
72 Cf. Kenneth W. Simons, Deontology, Negligence, Tort, and Crime,
76 B.U. L. Rev. 273 (1996).
73 Arguing that because willingness to face risks differs legitimately
in a plural society, you should indeed treat others according to some
standard of reasonableness, not according to your own preferences or
according to an economic valuation, see Gregory C. Keating,
Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev.
311 (1996). Professor Richard Wright thinks that morally speaking, you
need not treat others as yourself and in fact a rule requiring you to do so is
to treat no one as a distinct person with her own life to lead. See Richard
Wright, The Standards of Care in Negligence Law in Philosophical
Foundations of Tort Law 249 (David G. Owen, ed. 1995).
74 See David G. Owen, The Moral Foundations of Products Liability
Law: Toward First Principles, 68 Notre Dame L. Rev. 427 (1993).
75 Gregory C. Keating, Reasonableness and Rationality in
Negligence Theory, 48 Stan. L. Rev. 311, 342 (1996) (people have “diverse
and incommensurable conceptions of the good,” and those at risk generally
do not value the injurer’s aims and benefits as the injurer does, a theme
that appears in several places).
76 See Greycas, Inc. v. Proud, 826 F.2d 1560, 1566 (7th Cir. 1987) (“A
pedestrian is not required to exercise a level of care … that would be
optimal if there were no sanctions against reckless driving…. The law
normally does not require duplicative precautions unless one is likely to
fail or the consequences of failure … would be catastrophic.” (Posner, J.)).
77 E.g., Van Hook v. Anderson, 64 Wash.App. 353, 824 P.2d 509
(1992) (surgeon could rely upon nurses to count sponges and he was not
negligent in leaving a sponge in the patient’s body when he relied on
nurses’ assurance that sponges were accounted for); cf. Holger v. Irish, 316
Or. 402, 851 P.2d 1122 (1993) (surgeon not vicariously liable for nurse’s
negligent sponge count).
78 Many cases state some variation on the rule that a defendant can
normally assume that others will exercise reasonable care and can shape
his own conduct accordingly. E.g., Morgan v. Braasch, 214 Ga.App. 82, 446
S.E.2d 746 (1994) (intersection collision); Sims v. Huntington, 271 Ind.
368, 393 N.E.2d 135 (1979).
79 Manno v. McIntosh, 519 N.W.2d 815 (Iowa Ct. App. 1994)
(discussed in terms of “abandonment” of the patient).
80 Padilla v. Rodas, 160 Cal.App.4th 742, 73 Cal.Rptr.3d 114 (2008)
(expressing the point as a no-duty rather than as a no-negligence ruling);
Herron v. Hollis, 248 Ga.App. 194, 546 S.E.2d 17 (2001).
81 See Perri v. Furama Rest., Inc., 781 N.E.2d 631, 269 Ill. Dec. 834
(App. Ct. 2002) (“If parents or caregivers are unaware of a particular
danger, it is reasonably foreseeable that they will fail to prevent a minor
child from encountering that danger. Thus, while defendant was certainly
entitled to rely on the adults in plaintiffs’ group to protect their children
from dangers of which the adults were or should have been aware,
defendant is not absolved of its duty … simply because Jordan was
accompanied by his parents”). Cf. Foss v. Kincaide, 766 N.W.2d 317 (Minn.
2009) (homeowner owed no duty to protect child in home who was under
mother’s supervision).
82 See Pomer v. Schoolman, 875 F.2d 1262 (7th Cir. 1989);
McFarland v. Kahn, 123 Ariz. 62, 597 P.2d 544 (1979) (sprinkler head);
Morse v. Goduti, 777 A.2d 292 (N.H. 2001) (trier to consider whether
landowner created unreasonable risk by constructing an unfenced, steep-
sided pond or whether risk was reasonable because children could be
expected to appreciate and avoid the risk).
83 Stinnett v. Buchele, 598 S.W.2d 469 (Ky. 1980).
84 See White v. Georgia Power Co., 265 Ga.App. 664, 595 S.E.2d 353
(2004) (defendants failed to warn boys who could not swim of the dangers
of entering a raging river up to their necks; defendants not negligent as a
matter of law).
85 E.g., Ward v. K-Mart Corp., 136 Ill.2d 132, 554 N.E.2d 223 (1990)
(customer carrying mirror that blocked his view ran into a dangerously
placed obstruction); Urban v. Wait’s Supermarket, Inc., 294 N.W.2d 793
(S.D. 1980) (customer distracted by search for cupcake holders fell on
watermelons in aisle).
86 So-called negligent entrustment of a chattel. E.g., Renfro v.
Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).
87 E.g., Brigance v. Velvet Dove Rest., Inc., 725 P.2d 300 (1986).
88 See Ransom v. City of Garden City, 113 Idaho 202, 207, 743 P.2d
70, 75 (1987) (quoting Prosser & Keeton).
89 See Ray v. American Nat’l Red Cross, 696 A.2d 399 (D.C. 1997).
90 E.g., Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827
P.2d 656 (1992).
91 Hunter v. Dep’t of Transp. & Dev., 620 So.2d 1149 (La. 1993)
(costs of widening median increase safety for left-turn drivers).
92 In Ramirez v. Plough, Inc., 6 Cal.4th 539, 863 P.2d 167, 25
Cal.Rptr.2d 97 (1993), the court concluded that product warnings for
aspirin need not be given in Spanish even though the manufacturer
advertised in Spanish to Spanish-speaking consumers. The case turned on
several legal doctrines and policies but partly on the court’s belief,
seemingly not based on actual trial evidence, that costs of adding warnings
could be very high.
93 See McCarty v. Pheasant Run, Inc., 826 F.2d 1554 (7th Cir. 1987).
94 Texas & Pac. Ry. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47
L.Ed.2d 905 (1903); The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932); Mobile
Gas Serv. Corp. v. Robinson, 20 So.3d 770 (Ala. 2009) (gas-industry custom
to disconnect service when it fed known hazardous appliances is not
conclusive but may be considered by jury to determine whether defendant
exercised reasonable care in violating the custom); Scott v. Matlack, Inc.,
39 P.3d 1160, 1166 (Colo. 2002) (“When the defendant and the plaintiff are
part of an industry that conforms to certain well-established safety
customs, the jury may consider the customs as non-conclusive evidence of
reasonable care the defendant should follow in that industry.”);
13 (2010); Restatement Second of Torts § 295A (1965).
95 Elkerson v. North Jersey Blood Ctr., 776 A.2d 244 (N.J. Super. Ct.
App. Div. 2001) (standard of care applicable to blood bank’s allegedly
inadequate testing of donated blood was not industry practice but
reasonable person standard); Doan v. City of Bismarck, 632 N.W.2d 815,
824 (N.D. 2001) (child trampled by heifer at agricultural show; custom as
to training show animals is “evidence of whether conduct meets the
general standard of reasonable care under the circumstances”).
96 See § 21.5.
97 See § 17.8.
98 See Texas & Pac. Ry. v. Behymer, 189 U.S. 468, 23 S.Ct. 622
(1903) (Holmes, J: “What is usually done may be evidence of what out to be
done,” though it is only evidence, not the standard of care); The T.J.
Hooper, 60 F.2d 737 (2d Cir. 1932) (L. Hand, C.J.: “[I]n most cases
reasonable prudence is in fact common prudence”).
99 Richard A. Posner, Economic Analysis of Law § 6.3 (4th ed. 1992).
100 Darling v. Charleston Cmty. Mem. Hosp., 33 Ill.2d 326, 331, 211
N.E.2d 253, 257 (1965) (“Custom is relevant in determining the standard
of care [partly] because it illustrates what is feasible,” citing the classic
article, Clarence Morris, Custom and Negligence, 42 Colum. L. Rev. 1147
(1942)). The point continues to be recognized. See, e.g., Dominick Vetri,
Order Out of Chaos: Products Liability Design-Defect Law, 43 U. Rich. L.
Rev. 1373, 1454 n. 513 (2009) (“custom evidence is very relevant” in
proving existence of feasible, safer design in products cases).
101 Subsequent product improvements are admissible at least to show
feasibility of a safer product. See Cover v. Cohen, 61 N.Y.2d 261, 461
N.E.2d 864, 473 N.Y.S.2d 378 (1984); D.L. v. Huebner, 110 Wis.2d 581,
329 N.W.2d 890 (1983).
102 Otis Elevator Co. v. Melott, 281 P.2d 408 (Okla. 1955), is a case
involving the plaintiff’s customs, knowledge of which would apprise the
defendant of dangers to the plaintiff.
Harm) § 13(a) & (b) (2010) (violation of custom and compliance with
custom are both inconclusive evidence of negligence and no negligence
respectively).
104 McComish v. DeSoi, 42 N.J. 274, 200 A.2d 116 (1964) (testimony
based on safety manuals of industry to show what experienced people do
as evidence of what should be done); Besette v. Enderlin Sch. Dist. No. 22,
310 N.W.2d 759 (N.D. 1981) (school child injured in fall from slide,
evidence that other schools had safer playground surfaces admissible as a
custom); Kaiser v. Cook, 67 Wis.2d 460, 227 N.W.2d 50 (1975) (evidence
that other race tracks prohibited spectators at the dangerous number 3
and 4 turns sufficient to get the plaintiff to the jury). It should go without
saying that the plaintiff must show violation of the custom as well as its
existence. Guldy v. Pyramid Corp., 222 A.D.2d 815, 634 N.Y.S.2d 788
(1995).
105 Trimarco v. Klein, 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52
(1982).
106 E.g., Doe v. Dominion Bank of Washington, 963 F.2d 1552 (D.C.
Cir. 1992) (expert testified as to security customs of commercial landlords;
this was sufficient to sustain plaintiff’s burden in suit against landlord for
rape in the building).
107 E.g., Hansen v. Abrasive Eng’g & Mfg., Inc., 317 Or. 378, 856 P.2d
625 (1993) (ANSI advisory standard admissible but not conclusive).
108 The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932); LaVallee v. Vermont
Motor Inns, Inc., 153 Vt. 80, 569 A.2d 1073 (1989).
109 The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932), is the leading case.
There, failure of a tug’s operator to have a cheap radio on board to receive
weather reports that would have allowed him to put into a safe harbor
with his string of barges when a storm approached was negligence even
though the tugboat industry generally did not carry radios on board.
110 E.g., Wanner v. Getter Trucking, 466 N.W.2d 833 (N.D. 1991).
111 See Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370 (5th Cir.
2000) (dictum); Diaz v. Phoenix Lubrication Serv., Inc., 224 Ariz. 335, 230
P.3d 718 (Ct. App. 2010); L.A. Fitness Int’l., LLC v. Mayer, 980 So.2d 550,
558 (Fla. Dist. Ct. App. 2008) (“Although the custom and practice of an
industry can help define a standard of care a party must exercise after it
has undertaken a duty, industry standards do not give rise to an
independent legal duty.”).
112 See Rhodes v. Illinois Cent. Gulf R.R., 172 Ill.2d 213, 665 N.Ed.2d
1260 (1996) (no duty to aid trespasser who was injured, but not by the
defendant; and internal rules do not create a duty); Buczkowski v. McKay,
441 Mich. 96, 490 N.W.2d 330 (1992) (no duty to protect plaintiff from
another person, defendant’s internal policies create no such duty). On the
general no-duty rule, see Chapters 25 & 26.
113 See Roberts v. Indiana Gas & Water Co., 140 Ind.App. 409, 218
N.E.2d 556 (1966) (where reliance is foreseeable, omission of the
customary precaution may be negligence “in itself”).
114 See Wieghmink v. Harrington, 274 Mich. 409, 413, 264 N.W. 845,
847 (1936) (recognizing that jury could have found defendant’s custom
constituted the plaintiff an implied invitee, but holding that even if the
jury found otherwise, the custom put the defendant on notice that the
plaintiff would be in a position of danger so that he was not barred under
the trespasser-no-duty rule).
115 Husband v. Dubose, 6 Mass.App.Ct. 667, 531 N.E.2d 600 (1988)
(the “obligations [a host] assume[s are] those which, considering customs
and accepted social norms, one would reasonably expect [the host] to
fulfill, no more and no less” (quoting)).
116 Smith v. Aaron, 256 Ark. 414, 508 S.W.2d 320 (1974); Sanchez v.
J. Barron Rice, Inc., 77 N.M. 717, 427 P.2d 240 (1967).
117 Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974).
118 See Duncan v. Corbetta, 178 A.D.2d 459, 577 N.Y.S.2d 129 (1991)
(custom to use pressure-treated wood in stair construction, although
ordinance permitted use of ordinary lumber; trial judge should have
admitted evidence of custom).
119 See Iannacchino v. Ford Motor Co., 451 Mass. 623, 888 N.E.2d 879
(2008) (“It is well established that … evidence of the defendant’s violation
of a statute, regulation, industry standard, or even internal company
standard may be admissible on the question of negligence or defective
design.”); Joyce v. State, Dep’t of Corrections, 155 Wash.2d 306, 119 P.3d
825 (2005).
120 See Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 577, 841 N.E.2d
747, 749, 807 N.Y.S.2d 588, 590 (2005) (“where [a company’s internal
rules] require a standard that transcends reasonable care, breach cannot
be considered evidence of negligence”). There seems to be some tension
between the rule as formulated in Gilson, supra, and AG Capital Funding
Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 842 N.E.2d
471, 808 N.Y.S.2d 573 (2005) (custom can create duty of care between
bargaining parties).
121 Strict liability under the Restatement Second’s § 402A, which
determined defectiveness of products in part by reference to consumer
expectations, was probably an example. Similarly, informed consent cases
are rooted in the patient’s expectations. Even more clearly, then,
expectations of the parties would trump risk-utility balancing when those
expectations are based on custom.
122 See Levine v. Russell Blaine Co., 273 N.Y. 386, 7 N.E.2d 673
(1937).
123 Simon’s Feed Store, Inc. v. Leslein, 478 N.W.2d 598 (Iowa 1991).
Cf. Rhine v. Duluth, M & I R.R., 210 Minn. 281, 297 N.W. 852 (1941),
overruled in part on other grounds, Wessman v. Scandrett, 217 Minn. 312,
14 N.W.2d 445 (1944) (witnesses had observed many instances in which
railroad had set flares at crossing, but the custom might have been to set
flares only when the trains were engaged in switching movements, not
when they were proceeding in a straightaway movement).
124 Rentz v. Brown, 219 Ga.App. 187, 464 S.E.2d 617 (1995) (custom
must be universal); Braden v. Workman, 146 Mich.App. 287, 380 N.W.2d
84 (1985) (“certain, uniform and notorious”); Swindell v. J.A. Tobin Const.
Co., 629 S.W.2d 536 (Mo. Ct. App. 1981).
125 Trimarco v. Klein, 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52
(1982).
126 Thus strangers who have no legal relationship to each other, may
expect that the other will follow rules of the road by driving on the right,
even on private land. See Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 13 cmt. d (2010).
127 See Bowan ex rel. Bowan v. Express Med. Transporters, Inc., 135
S.W.3d 452 (Mo. Ct. App. 2004) (“Even when the evidence will not show a
uniform general custom, however, it may be ‘admissible as a generally
followed practice tending to show the standard of care exercised by
ordinarily prudent persons’ in performing the task at issue.”).
128 See Swindell v. J. A. Tobin Constr. Co., 629 S.W.2d 536, 544 (Mo.
Ct. App. 1981) (custom admissible when it was “a well-known and
widespread trade custom and not confined to the practice of certain
individuals only, and the custom is a definite, uniform, and known practice
under certain definite and uniform circumstances”); Wessman v.
Scandrett, 217 Minn. 312, 14 N.W.2d 445 (1944) (custom must be uniform
and also notorious enough to indicate defendant would know of it). But
where the issue is only foreseeability, it is wrong to suggest that the issue
is whether the custom is well-known enough that the defendant would
know about it. The issue is whether, given that the risk was foreseeable to
some persons, it would also be foreseeable to the standard reasonable
person.
129 Fowler v. Key System Transit Lines, 37 Cal.2d 65, 230 P.2d 339
(1951); Roberts v. Indiana Gas & Water Co., 140 Ind.App. 409, 218 N.E.2d
556 (1966) (where reliance is foreseeable, omission of the customary
precaution may be negligence “in itself”); Florence v. Goldberg, 44 N.Y.2d
189, 404 N.Y.S.2d 583, 375 N.E.2d 763 (1978).
130 Cf. Atlanta Enters. v. James, 68 Ga.App. 773, 24 S.E.2d 130 (1943)
(repairer’s reliance on custom that engineer would relieve gas pressure
from machine before repair began showed he did not assume the risk of
such pressure); McWilliams v. Parham, 269 N.C. 162, 152 S.E.2d 117
(1967) (custom to cry a forewarning before driving golf ball indicated
plaintiff was not guilty of assumed risk in being on the fairway).
131 When the defendant is under no legal duty to act at all, the
defendant’s internal rules requiring action do not create a duty unless the
plaintiff has relied upon those rules or is contractually entitled to benefit
from them. See Rhodes v. Illinois Cent. Gulf R.R., 172 Ill.2d 213, 665
N.Ed.2d 1260 (1996) (no duty to aid trespasser who was injured, but not by
the defendant; and internal rules do not create a duty); Buczkowski v.
McKay, 441 Mich. 96, 490 N.W.2d 330 (1992) (no duty to protect plaintiff
from another person, defendant’s internal policies create no such duty).
132 Thropp v. Bache Halsey Stuart Shields, Inc., 650 F.2d 817 (1981);
Ganz v. United States Cycling Fed’n, 273 Mont. 360, 903 P.2d 212 (1995).
See Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 863 P.2d 795, 25
Cal. Rptr. 2d 550 (1993) (relying in part on violation of internal rules);
Fielder v. Stonack, 141 N.J. 101, 661 A.2d 231 (1995) (relying on internal
rules of defendant to determine willful misconduct).
133 Calloway v. City of New Orleans, 524 So.2d 182, 6 A.L.R.5th 1108
(La. Ct. App. 1988) (sheriff’s policies about when to provide medical
attention to pregnant women); Briggs v. Morgan, 70 N.C.App. 57, 318
S.E.2d 878 (1984) (city policy to have back-up bells on its garbage trucks
admissible in the same way as defendant’s voluntarily adopted safety
handbook); Hurd v. Williamsburg County, 363 S.C. 421, 611 S.E.2d 488
(2005).
134 Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891 (Ind. 2002)
(instruction suggesting that defendant’s rules for cleaning up spills in
public areas was a recognition by defendant of appropriate standard was
error, although defendant’s rules were admissible).
135 See Pedroza v. Bryant, 101 Wash.2d 226, 677 P.2d 166 (1984). The
customary practice of health care providers is often the standard of care,
not merely evidence.
136 E.g., Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375
N.E.2d 763 (1978) (practice of furnishing crossing guard for school
children).
137 See Kline v. 1500 Massachusetts Ave. Apt. Corp., 439 F.2d 477, 43
A.L.R.3d 311 (D.C. Cir. 1970).
138 See Richard A. Epstein, The Path to the T.J. Hooper: The Theory
and History of Custom in the Law of Tort, 21 J. Leg. Studies 1 (1992). Cf.
Morgan v. Scott, 291 S.W.3d 622 (Ky. 2009) (internal standard of
dealership forbidding test drives without a dealership employee in the car;
failure to follow own guideline not dispositive).
139 See AG Capital Funding Partners, L.P. v. State St. Bank & Trust
Co., 5 N.Y.3d 582, 842 N.E.2d 471, 808 N.Y.S.2d 573 (2005) (which party
had duty to distribute all critical documents in complex business
transaction).
140 Clarence Morris, Custom and Negligence, 42 Colum. L. Rev. 1147,
1153 (1942).
141 Consumers are not aware, or expected to be aware, of all safety
and risk customs of a manufacturer, so the use of custom by the defendant
may be circumscribed. On the other hand, consumers may reasonably
assume that the product is made with the customary safety designs or
equipment and when it is not, the product may be defective. Industry
custom might also show that a reasonable alternative design is possible.
142 Richard A. Epstein, The Path to the T.J. Hooper: The Theory and
History of Custom in the Law of Tort, 21 J. Leg. Studies 1 (1992); cf.
Richard A. Posner, Economic Analysis of Law § 6.3 (4th ed. 1992).
(suggesting that as between industry and its customers, level of precaution
taken by industry is “likely to be efficient” and hence that compliance with
that custom should be a defense).
143 Restatement Second of Torts § 288C (1965); Restatement Third of
144 Ake v. General Motors Corp., 942 F.Supp. 869 (W.D.N.Y. 1996);
Miner v. Long Island Lighting Co., 40 N.Y.2d 372, 353 N.E.2d 805, 386
N.Y.S.2d 842 (1976); Zacher v. Budd Co., 396 N.W.2d 122 (S.D. 1986). The
Restatement of Products Liability takes the position in § 4 that compliance
with statute should be similarly treated in a products liability case
alleging defective design. In Malcolm v. Evenflo Co., Inc., 217 P.3d 514
(Mont. 2009), the court expressed its disagreement with the ALI on this
point, and held that in a strict products liability action, evidence of
statutory compliance was both irrelevant and more prejudicial than
probative.
145 See Teresa Moran Schwartz, The Role of Federal Safety
Regulations in Products Liability Actions, 41 Vand. L. Rev. 1121 (1988).
146 Ramirez v. Plough, Inc., 6 Cal.4th 539, 25 Cal.Rptr.2d 97, 863 P.2d
167 (1993) (statute requiring product warnings in English implied that
warnings need not be in Spanish); cf. Poelstra v. Basin Elec. Power Co-op.,
545 N.W.2d 823 (S.D. 1996) (affirming grant of directed verdict for
defendant, largely on the basis that defendant’s conduct complied with a
statute).
291
Chapter 13
PROVING NEGLIGENCE CLAIMS

Analysis
A. JUDGE AND JURY
§ 13.1 Roles of Judge and Jury in Negligence Cases
§ 13.2 Burden of Proof and Types of Evidence: Basic Information
B. SUBSTITUTES FOR FACTUAL EVIDENCE: RES IPSA LOQUITUR
§ 13.4 Inferences Permitted, Required or Unpermitted
__________
A. JUDGE AND JURY

§ 13.1 Roles of the Judge and Jury in Negligence
Cases
The importance of process. Much of the legal argument in
negligence litigation is directed to questions of legal process. The
first question for either the plaintiff’s or defendant’s lawyer is
likely to be, will the case get to the jury? Or will the judge
intervene to take the case from the jury by summary judgment or
directed verdict? Process of course is always important; it is doubly
important when, as in negligence cases, the rules of law do not
closely constrain the outcome.
Juries as fact-deciders. The first major role for juries in
negligence cases is determination of the facts. Where evidence
shows a dispute about historical facts, the jury is almost invariably
the decision-maker.1 Did the engineer blow the whistle at the
crossing? Was the light green? Did the doctor warn the patient of
the dangers of a proposed operation? These are decisions for the
jury, not the judge, so long as the evidence creates dispute.
Juries as conduct evaluators. The second major role for juries in
negligence cases is to evaluate the facts to determine whether the
defendant was negligent, whether his conduct was a legal cause of
the plaintiff’s harm, and the amount of damages.2 The jury must
determine both historical facts and value judgments.3 If the
plaintiff claims injury when, on a dark night, she bumped into a
face-level box attached to a utility pole, the jury must first
determine whether defendant attached such a box to the pole, how
high
292
it was, and whether the plaintiff in fact bumped into it. Those
are questions of historical fact. Once those historical facts are
determined, the jury must go further and decide whether the
defendant’s conduct amounted to the negligent creation of an
unreasonable risk. For this there is no conclusive legal guide
except the standard of the reasonable and prudent person under
the circumstances. It is the jury’s job to make a judgment whether
the defendant’s conduct met that standard.4 Because part of the
jury’s role is to make normative decisions or value judgments,
courts do not ordinarily grant summary judgment on negligence
issues, even if the facts are undisputed. In other words, the jury
must still weigh the risks and utilities associated with the facts
that it has determined exist.5
Judicial roles: legal duties and standards. Common law judges
have several major roles in negligence cases as well. Judges rather
than juries determine whether the defendant was under a duty of
care at all and if so what standard of care applied. If the judge
concludes that the defendant owed no duty at all, the judge will
grant a motion to dismiss, a summary judgment, or a directed
verdict, whichever is procedurally appropriate. If the judge
determines that the defendant owed a duty of care, the judge will
instruct the jury as to the proper standard.
Sufficiency of the evidence. Although judges are not empowered
to decide the factual disputes in the case, they are definitely
empowered to conclude that there is no evidence at all and equally
empowered to conclude that the evidence is so weak that
reasonable people could not accept it as sufficient to prove the
plaintiff’s case. If no reasonable person could find the defendant’s
conduct to be negligent, the judge will direct a verdict for the
defendant.6 On the other hand, if reasonable people, considering
the evidence in the light most favorable to the plaintiff,7 could
differ, the issue will be one for the jury to decide.
New trial powers. When a judge feels that a jury has done an
injustice, the judge can grant a new trial. In some states the judge
is empowered to grant a new trial whenever the judge concludes
that the jury’s verdict was against the weight of the
293
evidence,8 that the damages awarded were seriously inadequate

or excessive9 or that the verdict was manifestly unjust.10 More
cautious jurisdictions may constrain the judge’s new trial power
somewhat more, but they still permit judges to grant a new trial
even where a directed verdict would be improper.11 Under the
more liberal new trial rules, judges are permitted to weigh the
evidence and credibility of witnesses in deciding whether to grant a
new trial.12
Other roles. Judges also play a critical role in many other
decisions. For example, judges, through legal rules, prescribe the
types of harm compensable and the damages available. They also
constrain or shape the jury’s participation by deciding what
evidence to admit or exclude from the jury’s consideration. In the
case of expert testimony, the judge may also exclude the evidence if
the expert is deemed not sufficiently qualified or if the testimony
does not meet up to standards of the expert’s profession.13 In
addition, the judge has the power and duty to instruct the jury on
legal rules applicable to the facts.14
§ 13.2 Burden of Proof and Types of Evidence:
Basic Information
Burden of proving facts showing elements of the claim. The
plaintiff has the burden of proving facts to establish each element
of her case, meaning that if facts supporting elements of the claim
are not adduced at trial, the judge will direct a verdict or enter a
judgment as a matter of law for the defendant. In the negligence
case, it is not enough to show that the plaintiff suffered an injury
in an accident in which the defendant was in some way involved.15
The plaintiff must provide evidence of facts from which the judge
can determine that the defendant was under a duty of care,16 and
facts from which a jury
294
could reasonably find negligence,17 cause in fact,18 and

proximate cause19 by a greater weight of the evidence. The
defendant, on the other hand, has the burden of proving facts to
support affirmative defenses such as contributory negligence or
comparative fault,20 or the statute of limitations.
Burden of persuasion: The plaintiff has the burden of
persuading the trier of fact that the elements of her case have been
proven. To say that the plaintiff has the burden of persuasion is to
say that even if the plaintiff has produced evidence that would
permit a reasonable jury to find the issues in her favor, she must
still persuade the jury to do so, either by offering more evidence or
by making persuasive arguments.
The weight or standard of persuasion. The standard for the
great majority of tort cases is that the plaintiff must prove or
persuade the trier by a preponderance of the evidence.21 The
preponderance requirement means that the plaintiff must
persuade the jury that she has proven facts and conclusions
necessary to her case by a probability exceeding 50 percent. That is
to say, the jury must believe that the plaintiff’s essential assertions
are more probably true than not.22 If the jury thinks the defendant
might be negligent, but that it is equally likely that he is not, it
must find for the defendant, not the plaintiff.23 In a few instances,
courts require a more demanding standard, such as clear and
convincing evidence.24 And sometimes courts, without formally
altering the preponderance standard, note special needs to be
cautious in some cases,25 or conversely, that the facts warrant an
inference that meets the preponderance burden.
Defendant’s burden. The defendant has the burden of proving
any affirmative defense. For example, if he wishes to assert that
his liability should be reduced because of the plaintiff comparative
fault, he must meet the burden of production by offering evidence
that the plaintiff was at fault. On that issue he likewise has the
burden of persuasion, meaning that the jury is instructed not to
find comparative fault in the plaintiff unless the defendant has
convinced the jury of such negligence by a preponderance of the
evidence.
295
Forms of evidence to prove negligence issues. Direct evidence

from percipient witnesses is a common way of proving historical
facts in a negligence case. For example, a witness testifies that he
saw defendant drive through an intersection on a red light. When
such direct evidence is not available or not conclusive, other
possibilities exist. These are subject to many qualifications under
the rules of evidence or otherwise, but they include use of collateral
estoppel,26 in-or out-of-court admissions of the defendant,27 the
defendant’s destruction or refusal to produce relevant evidence,28
expert testimony to reconstruct events,29 police reports,30 a plea of
guilty31 or a criminal conviction of a defendant based on the same
facts that underlie the tort action,32 custom,33 voluntary safety
codes,34 and others. The most common alternative to direct
evidence of facts, however, is circumstantial evidence.
Circumstantial evidence. Ordinary circumstantial evidence is
evidence of one fact that tends to establish some other fact,35 or
when the term is used loosely, to establish a legal conclusion.36
Examples. Evidence that a car driven by the defendant came to
a stop only after skidding 500 feet and knocking down a tree 12
inches in diameter tends to establish that the defendant was
driving very fast, and the trier of fact may so infer.37 Evidence that
a driver struck a large rock in the road tends to establish that the
driver was not keeping a proper lookout or that if he was, he failed
to act on the basis of what he saw.38 And evidence of a driver’s
drunkenness shortly after a bartender served him alcohol may
tend
296
to show that the bartender could have observed his apparent

intoxication shortly before.39 Likewise, when a healthy defendant
driving a mechanically sound car manages to rear-end another car
in good clear weather, on a smooth road, it is fair to conclude that
he was negligent in failing to keep his attention on the road—
especially if he falsely denies that his cell phone was operative.40
Admissibility and weight generally. Subject to the rules of
evidence, circumstantial evidence is admissible at trial and often
plays a major role in tort cases. Such evidence must of course be
weighed case by case, but in general it is entitled to as much
weight as direct evidence.41 In many instances, circumstantial
evidence based on physical facts like skid marks may be more
trustworthy than eyewitness testimony; as a class of evidence, it
has no less weight than direct testimony as a class.42 Judges have
an important role in making evidentiary decisions about
circumstantial evidence, when expert testimony is required to
introduce or explain it, and when the evidence as a whole is
sufficient to permit reasonable jurors to draw the inferences
necessary to establish a claim or defense.43
Expert testimony and the ultimate evaluation of negligence.
When the plaintiff claims professional negligence such as medical
malpractice44 or negligence that requires technical knowledge to
understand, experts may be required as well as permitted to testify
about risks and alternatives.45 They may even be permitted to
testify that the defendant’s conduct violated governing
standards.46 Otherwise, however, experts are generally not
required or even permitted to testify either to matters of common
knowledge or to the ultimate conclusion of negligence. The
conclusion that a person is negligent is quite different from the
conclusion that skid marks on a certain road show the car’s speed
to be no less than 30 mph.47 The opinion about speed is mainly one
about the probable facts, to which the expert may testify if he is
appropriately qualified and if the testimony may assist the jury. In
contrast, the opinion that driving 30 mph constitutes negligence is
an evaluation of the facts.
297
Jury evaluation of negligence. Under the general reasonable

person standard of care, juries are generally expected to evaluate
negligence on the basis of their own experience and perceptions of
the risks involved. Neither expert opinion nor evidence of any
special custom is required to permit this evaluation, so long as the
kinds of risk involved are within the community’s general
understanding.48
B. SUBSTITUTES FOR FACTUAL EVIDENCE: RES
IPSA LOQUITUR
Meaning. Proof that an accident happened or even that the
defendant caused an injury is ordinarily not enough by itself to
show negligence. As courts say, negligence is not presumed.49
Cases that fit the res ipsa loquitur pattern constitute something of
an exception. The Latin phrase means that the thing speaks for
itself, which is to say, the accident itself is evidence of negligence.
The core rule. The core of the res ipsa loquitur doctrine is simple
and straightforward. If the defendant owes the plaintiff a duty of
care,50 the jury is permitted to infer that the defendant was
negligent in some unspecified way when, on the evidence adduced,
there is a rational basis in common experience or expert testimony
for finding (1) that the injury was probably the result of
negligence,51 and (2) that the defendant was at least one of the
persons who was probably negligent.52 Jurists express these two
298
requirements in various ways.53 The first requirement, that

negligence must be the more probable explanation for the injury, is
often expressed by saying that the injury must be of a kind which
ordinarily does not occur in the absence of negligence.54 The
Restatement Third of Torts provides that the trier can infer that
the defendant was negligent “when the accident causing the
plaintiff’s physical 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.”55 The underlying point of
the formulations is much the same—to make a reasonable estimate
of probabilities that the defendant was guilty of some unspecified
and perhaps unknowable negligence.
The limiting rules. At times American cases have imposed
constraining rules, most of which have now either been rejected or
subjected to substantial qualifications discussed in later sections.
These rules said that the res ipsa loquitur doctrine could not apply
unless (a) the defendant was in exclusive control of the harm-
causing instrumentality at some relevant time and (b) the plaintiff
shows that she was not responsible for, or not an active participant
in her own injury. Less importantly, some courts have also said
that (c) once specific acts of negligence are pleaded or proved, res
ipsa loquitur is no longer available; and that (d) res ipsa loquitur is
not available at all unless the defendant has superior access to the
evidence.
The leading res ipsa example. The most important ancestor of
the res ipsa doctrine is also its best illustration. In Byrne v.
Boadle,56 the plaintiff was a pedestrian who was struck by a barrel
of flour as he was walking adjacent to the defendant’s shop.
Although it was a fair inference that the barrel had come from the
defendant’s shop, the plaintiff was unable to show that the
defendant had been negligent in any particular way. Nevertheless,
the court thought the happening spoke for itself and that the jury
would be permitted to find that the defendant was negligent, albeit
in unspecified ways.
Relation to circumstantial evidence and the specific conduct
requirement. Res ipsa loquitur is not a cause of action57 and,
absent unusual rules, need not be pleaded as a theory of the case.58
Rather, as courts and commentators often say, res ipsa loquitur
represents a kind of circumstantial evidence. At the same time, res
ipsa loquitur cases differ from ordinary circumstantial evidence
cases in one major respect. In ordinary cases, the plaintiff’s
evidence, circumstantial or direct, must point to specific conduct of
the defendant, as where long skid marks circumstantially prove
that the defendant was
299
speeding. In contrast, res ipsa loquitur cases permit the jury to

infer negligence without inferring any particular misconduct at all.
Example. For instance, in Byrne, the plaintiff did not prove,
either circumstantially or otherwise, that the barrel had been
stored on its side instead of standing up, or that a rope holding the
barrel had frayed and broken or any other particular acts that
could be counted as negligence. The claim was only that the
circumstances warranted the belief that the defendant was
negligent in a wholly mysterious way.
Invocation of res ipsa loquitur where specific conduct can be
inferred. However, res ipsa loquitur is sometimes invoked
needlessly and inappropriately. If the trier can infer that the
defendant was probably guilty of one of several specific acts of
negligence but cannot be sure which act it was, res ipsa is not
properly involved. Instead, the trier can simply draw the inference
of specific negligence. For example, if a car parked at the curb by
the defendant begins to roll downhill in the absence of interference
by others, a trier might infer that the defendant either failed to set
the brakes or failed to cut the wheels properly against the curb, or
failed to put the car in parking gear, or some combination.
Although the jury might not be sure which of these negligent
omissions occurred, if it can conclude that one or more of them did,
then the case is merely one of ordinary circumstantial evidence.
Similarly, in rear-end collisions: res ipsa is not needed because the
jury can ordinarily infer specific negligence on the part of the rear
driver—he was either not keeping a proper lookout or driving too
fast or both.59 When courts speak of res ipsa loquitur in cases like
this perhaps no harm is done,60 but they risk confusing the process
of estimating the probability of unknown acts of negligence with
the process of inferring specific negligent acts.61
§ 13.4 Inferences Permitted, Required or
Unpermitted
Roles of judge and jury: permissible inferences. When the
plaintiff argues that a res ipsa loquitur inference should be
available to establish her claim of negligence, the judge in the first
instance determines whether, on the evidence adduced, jurors can
reasonably
300
conclude that the defendant was negligent.62 If the judge

concludes that reasonable persons could not draw an inference of
negligence on the facts the jury is entitled to believe, then the jury
will not be permitted to rely upon res ipsa loquitur. If the judge
concludes that reasonable people could differ, the jury is permitted
to draw the res ipsa inference, and may be instructed to that
effect.63 In making the determination whether reasonable people
could conclude that negligence is the probable explanation for the
injury, the judge considers the same common knowledge, expert
testimony, alternative explanations and other matters that the
jury would consider. The judge determines only whether
reasonable people could differ about the probability of negligence
as an explanation. Once the judge determines that reasonable
people can conclude on the governing facts that negligence is
probable, the jury is permitted to infer negligence but it is not
required to do so.64
Shifting the burden of persuasion. A few jurisdictions, including
California, hold that when res ipsa applies, the defendant must
introduce at least some evidence to rebut the inference, and that
the jury must find negligence if the defendant fails to do so.65
However, as the Restatement notes, some decisions are ambiguous
if not downright contradictory,66 perhaps because the presumption
rule is too stringent or counterintuitive.
Exceptionally strong inferences under the permissible inference
rule. Even under the permissible inference rule, rare cases may call
for special treatment. The weight of circumstantial evidence is
sometimes great, sometimes weak. The same is true with the res
ipsa inference. It is possible to imagine that the plaintiff’s evidence
creates an inference so strong that, unless the evidence is simply
not credited, it should carry the case for the plaintiff in the absence
of rebuttal.67
Effect of rebuttal evidence. Some forms of rebuttal evidence, if
taken as true, may convince the judge that reasonable people could
not find negligence. However, the defendant’s rebuttal evidence
might be disbelieved by the trier, so the judge cannot
301
appropriately remove res ipsa loquitur from the case merely

because the defendant has offered alternative explanations or
other rebuttal evidence.68 Rather, the jury’s role is to resolve
conflicts in testimony and to weigh probabilities of negligence,
provided the plaintiff’s evidence in the first place is prima facie
sufficient to permit the inference that negligence is the probable
explanation. Possibly, however, there are exceptionally strong
cases of uncontradicted rebuttal that clearly dispel the inference of
negligence, in which case the jury might even be compelled to find
for the defendant.69
Incomplete rebuttal evidence. In some cases, the jury can believe
all of the defendant’s testimony and still rationally find that the
defendant was negligent. For example, if the plaintiff was injured
by the malfunctioning equipment at the defendant’s factory, the
defendant’s rebuttal evidence might show that the equipment
failed because of manufacturing flaws, but the jury might
nevertheless still be permitted to draw the res ipsa inference of
negligence because the rebuttal does not exclude the possibility
that the defendant should have discovered the flaws.70 Or the
defendant might offer evidence describing all its careful acts, but
failing to explain how, given its due care, the injury could occur. In
such a case, even if the jury believes the rebutting testimony, the
inference of negligence is not necessarily dissipated, and the jury
may again be allowed to draw the inference of negligence.71
Estimating probabilities: common knowledge or experience.
Some judges express caution about submitting res ipsa loquitur
claims to the jury.72 Certainly they will not submit a res ipsa
loquitur claim to the jury unless there is some basis on which the
jurors can rationally estimate that negligence of some kind is
reasonably probable. Such estimates may be based on either of two
grounds: general common knowledge, observation or experience on
the one hand or expert testimony on the other.
Common knowledge as a common sense of probability in general.
The common knowledge requirement envisions general background
knowledge, not knowledge about the particular kind of accident
that befell the plaintiff. It does not require knowledge of
302
statistics or even actual experience indicating probabilities.73

Thus, common knowledge often sounds more like a common or
shared sense of probabilities rather than actual knowledge, and in
fact common sense is a term frequently used in the cases.74 For
instance, jurors have been permitted to conclude that when a
modern airplane crashes without explanation and no other cause
appears likely, that the operator of the plane was negligent, even
though the jurors themselves are not pilots and have no actual
data on the subject of air-crash negligence.75 Similarly, people
outside the health care professions, may know very little about the
technical side medical equipment, but if a patient is burned in an
operating room fire76 or catches fire while immobilized in a
treatment room,77 an inference of negligence is entirely fair under
the res ipsa loquitur rules unless other explanations are in
evidence. On the other hand, courts refuse to submit cases to the
jury on the res ipsa loquitur theory when they conclude that there
simply is not enough common observation or experience to justify
an estimate of probabilities.78
Common knowledge where injury is unusual. The mere fact that
injury is unusual under the circumstances of the case does not by
itself logically prove that negligence is a reasonably probable
cause.79 What is necessary to show that negligence is probable is
that injury is not merely unlikely, but unlikely in the absence of
negligence,80 or put affirmatively, that negligence is a reasonably
likely explanation. For example, the mere
303
fact that a plane passenger suffers ear pain when the plane
lands does not by itself prove negligence; injury may have resulted
from the passenger’s own conditions.81
Evidence of alternative explanations or their absence. If the
judge believes that other explanations for the injury are as likely
as negligence, the case cannot to go to the jury on a res ipsa
loquitur theory.82 For example, if the only evidence is that a tire
blows out on a moving vehicle, negligence of the manufacturer does
not seem to be a probable explanation, since tires are not expected
to last forever and many other causes of blowout are readily
imaginable.83 However, the probability of negligence is increased if
the plaintiff can produce additional evidence that tends to exclude
innocent, non-negligent causes of the injury. For instance, if the
plaintiff shows that wear and tear and external harm to the
defendant’s product are unlikely explanations of the product’s
failure, the inference that the product was negligently made or
defective is considerably strengthened and the jury may be allowed
to draw the inference.84 To generalize the point, when the evidence
permits the trier to find that other causes are unlikely, the
inference of negligence becomes strong.85
Estimating probabilities: expert testimony. When common
knowledge or experience furnishes an inadequate basis for
estimating probabilities of negligence, most courts now allow the
plaintiff to introduce expert opinion testimony to establish the
probability that negligence is the explanation for injury.86 For
example, an expert may be able to estimate the probability that
negligence is the explanation when a surgical operation goes
horribly wrong. The expert’s estimate, however, may be disputed
by other experts and may be rejected by the jury.87
Estimating probabilities: judicial disagreements. In close cases,
judges may be uncertain whether common knowledge suffices to
warrant submission of the res ipsa loquitur claim to the jury and
may even differ among themselves as to the probability of
negligence versus the probability of some innocent explanation. In
a Wisconsin case the court was closely divided where a wildly out-
of-control vehicle crashed into several cars. No one could be sure
whether these events were caused by the driver’s unforeseeable
304
heart attack (which left him dead) or whether the attack came
immediately afterward. It seems difficult to say that anyone could
estimate the probabilities of the negligence explanation versus the
heart attack explanation, but the majority left it to the jury.88
Risk of judicial error. Because in close cases there is no
certainty what the “right” ruling would be, Judge Calabresi has
suggested that judges may properly consider which party should
bear the risk of potential judicial error in ruling on res ipsa
loquitur. Would an erroneous decision to let the jury decide the res
ipsa loquitur inference be more harmful or less harmful than an
erroneous decision to dismiss the res ipsa loquitur claim?89 But
this, too, merely injects another estimate, or perhaps it is, as Judge
Calabresi says, only intuition.
Pleading res ipsa loquitur in the alternative. Courts
traditionally said that if the plaintiff proves, or offers evidence of
the defendant’s specific acts of negligence, the case cannot be
submitted to the jury on a res ipsa loquitur theory.90 However,
“most modern courts find it inappropriate to penalize the plaintiff”
for attempting to prove specific negligence.91 Under this view, the
plaintiff may plead and attempt to prove specific acts of negligence
and also argue that she is entitled to a res ipsa loquitur inference if
the jury does not believe the specific acts were sufficiently
proven.92 The modern rule appears to be the best starting place for
analysis. The plaintiff’s attorney often cannot know whether the
jury will accept proof of specific facts and it is not wrong to attempt
to prove them. However, the res ipsa inference of negligence is
negated once the jury accepts testimony that fully explains the
occurrence,93 whether that testimony comes from the plaintiff’s
effort to prove specific acts of negligence or from the defendant’s
effort to exonerate himself.
Examples: tangible instruments of harm. Most res ipsa loquitur
cases arise when the plaintiff is injured by an identified
instrument of harm. Frequently an object that should be contained
or stationary in fact escapes, moves, or explodes, becoming an
active source of harm. For example, a light fixture falls from the
ceiling without apparent cause.94 There are endless variations—
the plaintiff is struck by a falling object,95 by an
305
unattended car that somehow has broken loose,96 by a wheel

that flies off a moving vehicle;97 the defendant’s grenade explodes
prematurely,98 or its bottle explodes in the plaintiff’s hand;99 or its
chair collapses when the plaintiff sits upon it;100 high voltage lines
fall for no apparent reason,101 gas lines explode or catch fire,102
water bursts from its pipes,103 cattle escape from their pens.104
Sometimes the instrument of harm is something that is properly
moving or active to begin with, but it takes a course that is so
unexpected that negligence remains a strong likelihood, as where a
car driven along a safe and clear highway suddenly leaves the road
and strikes an unsuspecting tree in a field.105 At other times the
instrument of harm is almost definitionally defective, as where
food in a sealed container proves to be poisonous or otherwise
dangerous to health.106 Because it is all a matter of appraising
evidence, res ipsa loquitur may also be rejected in most of these
instances if the facts of a particular case suggest an explanation
not based on negligence, or if the defendant was not the negligent
person.107
Examples: unknown instruments of harm; the caretaker and
custodial cases. No formal rule limits res ipsa loquitur to cases in
which the instrumentality of harm is known. Suppose the plaintiff
suffers an injury while in the defendant’s custody. The plaintiff is
an infant in a day care center, a patient anesthetized upon an
operating table, or a nursing home patient unable to communicate.
If the infant is returned from day care with a concussion and
damage to the optical nerve that requires surgery,108 a broken
arm,109 or injuries from being chewed by some animal,110 it is not
implausible to say that the day care center, with its obligation to
supervise and protect, was likely negligent, even though the
plaintiff cannot prove that the harm was done by a falling barrel or
any
306
other particular tangible item. The same idea applies to others

in the custody of caretakers, such as patients in nursing homes111
infants in hospital care112 and those who are anesthetized,113 but
of course only if the injury occurred while the plaintiff was in the
defendant’s care.114
Nonreciprocal risks. Almost all the illustrations of res ipsa
loquitur given above, whether involving a tangible instrumentality
or not, are cases of nonreciprocal risks. That is, the defendant is in
a position to negligently harm the plaintiff, but the plaintiff is not
in a position to inflict similar harms upon the defendant,
sometimes not even in position to protect herself. It is exemplified
by all those cases in which gravity plays a heavy role. The
pedestrian on the street is endangered by falling barrels but
creates no similar risk to people on the second story, nor is she in
good position to protect herself. Even where the defendant does not
have literal and total control of the risks, the nonreciprocal feature
of res ipsa is often very prominent, as where the plaintiff is injured
by an exploding soda bottle or a collapsing chair. The defendant
may lack literal control in such cases, but the risk remains a one-
way street. The nonreciprocal character of many res ipsa cases is
not the function of a rule, but it is a characteristic that often
appears and may suggest a moral basis for the inference when
otherwise the case might be doubtful.
Negligence must be defendant’s. Res ipsa loquitur cannot be
applied unless the evidence makes it reasonably probable that the
defendant is one of the persons whose negligence caused the
accident or injury. Or as the Restatement Third puts it, the
doctrine does not apply unless the injury-causing accident
ordinarily happens “as a result of the negligence of a class of actors
of which the defendant is the relevant member.”115
Defendant’s control is sufficient. Evidence that the defendant
had exclusive control of the instrumentality of harm at the time of
the accident is usually sufficient to permit
307
an inference that any negligence inferred is probably

attributable to the defendant.116 When a barrel falls on the
plaintiff, the probability is that someone was negligent. When it
falls from the defendant’s warehouse, the probability is that the
defendant is that negligent person.
Is defendant’s control necessary? Courts have often said that the
defendant’s exclusive control, directly or through its agents,117 was
not only sufficient to show the defendant’s probable connection
with the accident, but also a necessary prerequisite for the
application of res ipsa loquitur.118 Although some courts continue
to state and apply the control rule without analysis, courts in many
cases have found it too overstated to accomplish its purpose, for
reasons of overbreadth—evidence may show that the defendant
was probably the negligent author of the plaintiff’s injury even
when the defendant was not in control of a dangerous instrument
at the time injury occurred.119 In light of the overbreadth of the
traditional control rule, some courts have found various ways to
retain the rule but reformulate its meaning.120 Other courts have
reformulated the rule itself.121 The Second Restatement eliminated
the control rule but recognized and enforced its purpose by
providing that the evidence must tend to show that other
responsible causes are unlikely, thus pointing to the defendant as a
negligent party.122 The Restatement Third likewise eliminates the
control rule while at the same time capturing the underlying idea
that evidence must warrant a finding that it was the defendant,
not merely others, who negligently caused harm.123
308
Control in cases of multiple actors. Res ipsa is not available

unless the plaintiff can provide some kind of evidence to show that
the particular defendant was one of the negligent actors. For
example, if the plaintiff is injured in an unexplained collision
between two moving motor vehicles, res ipsa loquitur will not
normally apply.124 The same is true whenever two or more
persons, including the plaintiff herself, participate actively in other
injury-causing events, such as a slip-and-fall125 or a collision
between two skiers.126 When particular facts of the collision are in
evidence, however, the case can be quite different. In collisions
between moving vehicles, if the negligence of one driver can be
excluded, the res ipsa inference may be allowed against the other.
Although res ipsa loquitur does not ordinarily assist the plaintiff
when two or more defendants are in control of the relevant
instrumentality at different times, that is serial or consecutive
control,127 additional evidence may sometimes raise the probability
that it was the defendant and not some other actor who was at
fault.128 In the classic exploding bottle case, the plaintiff showed
that the bottle had not been mishandled or subjected to pressure or
temperature change after it left the hands of the defendant bottler.
That evidence, if accepted, eliminated negligence of the distributor
and retailer, leaving a probability that the defendant and no one
else was at fault.129 In some cases of serial control, the evidence
may even warrant the belief that both actors were negligent, the
first in causing a defect and the second in failing to discover it.130
Due care requiring protection from other actors: public access
cases. Since due care means that instruments made available for
public access should be made and maintained in a condition safe
for use by many people,131 the fact that the public has access to
them does not necessarily mean that the manufacturer, owner, or
servicer is not negligent. A plaintiff who is injured when a chair
provided by a place of business132
309
or a wheelchair provided by a hospital collapses,133 an escalator

or elevator malfunctions,134 an automatic door closes on her,135 or
a public telephone shocks her,136 may often be permitted to claim
res ipsa loquitur negligence, so long as she can exclude herself as
the probable cause of the injury. But again, it is a matter of
assessing the probabilities in each case.
Special liabilities of multiple defendants. Although courts
usually insist that res ipsa loquitur must be grounded in some kind
of evidence rationally pointing to the defendant as the wrongdoer,
there are several kinds of cases in which courts may impose
liability upon defendants who are not likely to have been the
wrongdoers. These include liability of several health care
professionals engaged in surgery upon an anesthetized patient,137
or of caretakers who exercise custody of a person unable to care for
himself. Many theories have been advanced for accepting the
captain of the ship doctrine, which makes the chief surgeon
vicariously liable, in these cases.138
Commenting on caretaker-custodial cases. The just basis for
liability of a hospital or surgeon for injury to a patient that may
have been caused by any one of the health care team is grounded in
the idea that those who accept custody of a person who is unable to
care for himself are implicitly accepting responsibility to guarantee
care, or at least to provide information about the causes of harm
inflicted. In a sense this is a kind of strict liability, but it is rooted
in the implicit terms of the parties’ consensual arrangements.139
The idea might appropriately extend to other custodial cases, such
as those in which an institution cares for the infirm, and those in
which day-care centers accept the care of very young children.
________________________________
1 Darling v. J.B. Expedited Servs., Inc., 2006 WL 2238913 (M.D.
Tenn. 2006); Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 8(a) (2010) (where reasonable minds can differ).
2 Restatement Second of Torts § 328C (1965).
3 See Mark P. Gergen, The Jury’s Role in Deciding Normative
Issues in the American Common Law, 68 Fordham L. Rev. 407 (1999); F.
Patrick Hubbard, The Nature and Impact of the “Tort Reform” Movement,
35 Hofstra L. Rev. 437, 454 n.67 (2006) (“juries provide community input
on norms of behavior by giving contextual specificity to wrongdoing”).
4 Considine v. City of Waterbury, 279 Conn. 830, 905 A.2d 70
(2006); Delmarva Power & Light v. Stout, 380 A.2d 1365 (Del. 1977) (jury
to decide whether the known conduct violated the reasonable person
standard); Deal v. Bowman, 286 Kan. 853, 188 P.3d 941 (2008) (judging
driver’s negligence is task for the jury); Hincks v. Walton Ranch Co., 150
P.3d 669 (Wyo. 2007) (jury must determine how a cow escaped and
whether the defendant rancher took reasonable precautions to keep the
cow from escaping); Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 8(b) (2010) (where reasonable minds can differ); cf.
Kemper v. Builder’s Square, 109 Ohio App. 3d 127, 671 N.E.2d 1104 (1996)
(jury to say whether defendant’s method of displaying and securing was
negligent).
5 E.g., Little v. Liquid Air Corp., 952 F.2d 841 (5th Cir. 1992);
Lugtu v. California Highway Patrol, 26 Cal.4th 703, 110 Cal.Rptr. 2d 528,
28 P.3d 249 (2001) (jury, not court, would decide whether officer was
negligent in pulling speeding car over to the median where it was crashed
by a truck rather than onto right shoulder); Doan v. City of Bismarck, 632
N.W.2d 815 (N.D. 2001).
6 Peterson v. Eichhorn, 344 Mont. 540, 189 P.3d 615 (2008)
(summary judgment for defendant where reasonable minds could not find
he was negligent); Montas v. JJC Constr. Corp., 985 N.E.2d 1225 (N.Y.
2013) (affirming directed verdict for defendant); Fultz v. Delhaize Am.,
Inc., 278 Va. 84, 677 S.E.2d 272 (2009) (issue becomes one for the trial
judge when “reasonable minds could not differ about what conclusion could
be drawn from the evidence”).
7 E.g., Abebe v. Benitez, 667 A.2d 834 (D.C. 1995); Botelho v.
Caster’s, Inc., 970 A.2d 541 (R.I. 2009) (upholding jury verdict where
“reasonable minds could differ as to … negligence”); cf. Banks v. Beckwith,
762 N.W.2d 149, 153 (Iowa 2009) (“if reasonable minds might differ about
whether the injury could result from surgery in the absence of negligence,
the court should instruct on res ipsa”).
8 E.g., Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995) (“when
the verdict is clearly against the preponderance of the evidence”); Carr v.
Strode, 79 Haw. 475, 904 P.2d 489 (1995) (movant need establish only that
“the verdict rendered for its opponent is against the manifest weight of the
evidence”).
9 E.g., Dillon v. Frazer, 678 S.E.2d 251 (S.C. 2009) (holding that
trial judge abused his discretion in failing to grant a new trial when jury
awarded $6,000 for undisputed damages of at least $30,000 and admitted
liability).
10 E.g., Malmberg v. Lopez, 208 Conn. 675, 546 A.2d 264 (1988) (duty
to set aside the verdict when it is manifestly unjust and that includes
inadequate award of damages).
11 See Gaston v. Viclo Realty Co., 626 N.Y.S.2d 131 (App. Div. 1995).
12 Pocatello Auto Color, Inc. v. Akzo Coatings, Inc., 127 Idaho 41, 896
P.2d 949 (1995) (“Because the trial court evaluates the credibility of the
evidence on a motion for a new trial, a trial court may properly grant the
motion in cases where there is substantial evidence to support the jury’s
verdict and a judgment n.o.v. [or directed verdict] would have been
inappropriate.”); Botelho v. Caster’s, Inc., 970 A.2d 541 (R.I. 2009) (trial
judge ruling on motion for new trial makes “an independent appraisal of
the evidence” and “can weigh the evidence and assess the witnesses’
credibility,” and “reject some evidence and draw inferences which are
reasonable in view of the testimony”).
13 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
14 Handler Corp. v. Tlapechco, 901 A.2d 737 (Del. 2006) (“A party
has an ‘unqualified right to have the jury instructed with a correct
statement of the substance of the law.’ ”). Trial judges usually have a good
deal of discretion in the formulation of a legally correct instruction.
Marsingill v. O’Malley, 128 P.3d 151, 161 (Alaska 2006) (“the test for
determining the legitimacy of jury instructions is not whether a ‘clearer
and [a] more accurate statement of the law’ is possible but rather whether
‘the trial judge’s wording wrongly stated the law or was otherwise likely to
have led the jury astray’ ”).
15 E.g., Habershaw v. Michaels Stores, Inc., 42 A.3d 1273 (R.I. 2012)
(plaintiff alleged that she slipped on a shiny floor; “the mere occurrence of
an accident, without more, does not warrant an inference that a defendant
has been negligent”); Brewster v. United States, 542 N.W.2d 524 (Iowa
1996).
16 See, e.g., Vasquez v. Wal-Mart Stores, Inc., 913 P.2d 441 (Wyo.
1996). Judges sometimes speak of “proving” a duty or a standard of care,
duties or standards are by definition set by the judge in the first place,
there is never a question of “proving” the standard itself as distinct from
facts which provide grounds for invoking the duty or facts that show a
breach of the duty or standard.
17 E.g., Anglin v. Kleeman, 140 N.H. 257, 665 A.2d 747 (1995);
Habershaw v. Michaels Stores, Inc., 42 A.3d 1273 (R.I. 2012) (allegation of
a slip and fall on a shiny floor was insufficient to defeat the defendant’s
summary judgment motion; plaintiff must in such a case present enough
evidence of some unsafe condition of which the defendant should have
been aware).
18 E.g., Miller v. Evangeline Parish Police Jury, 663 So.2d 398 (La.
Ct. App. 1995).
19 E.g., Stewart v. Federated Dep’t Stores, Inc., 234 Conn. 597, 662
A.2d 753 (1995) (“the plaintiff must show, by a fair preponderance of the
evidence, that harm intentionally caused by a third person is within the
scope of the risk created by the defendant’s negligent conduct”).
20 Hill v. City of Lincoln, 249 Neb. 88, 541 N.W.2d 655 (1996).
21 E.g., California Jury Instructions (Book of Approved Jury
Instructions) 2.60.
22 Willis v. Manning, 850 So.2d 983 (La. Ct. App. 2003) (“A
preponderance of the evidence exists … the fact sought to be proved is
more probable than not”); Matsuyama v. Birnbaum, 452 Mass. 1, 890
N.E.2d 819 (2008) (preponderance of the evidence equated with “more
likely than not”); Barbie v. Minko Constr., Inc., 766 N.W.2d 458 (N.D.
2009) (equal probability not enough).
23 See Barbie v. Minko Constr., Inc., 766 N.W.2d 458 (N.D. 2009) (if
it is equally probable that the defendant is negligent and that he is not,
“the court must direct the jury that the plaintiff has not established a
case” (quoting Prosser & Keeton on Torts)); Pike v. Eubank, 197 Va. 692,
90 S.E.2d 821 (1956); 1 Ohio Jury Instructions 3.50 (2006).
24 Some cases require clear and convincing evidence to support
claims for punitive damages, libel, or fraud.
25 See Ellis County State Bank v. Keever, 888 S.W.2d 790 (Tex.
1994) (malicious prosecution, standard is preponderance of evidence, but
because resort to courts is important, trier should be cautious).
26 Kimberlin v. DeLong, 637 N.E.2d 121 (Ind. 1994).
27 E.g., Martinez v. New York City Transit Auth., 41 A.D.3d 174, 838
N.Y.S.2d 53 (2007) (plaintiff’s admission to emergency medical worker that
she slipped exiting the bus admissible against her in her claim that the
driver closed the doors on her).
28 §§ 44.4 to 44.7 (intentional or negligent spoliation).
29 E.g., Lincoln v. Clark Freight Lines, Inc, 285 S.W.3d 79 (Tex. App.
2009) (admitting accident reconstruction expert’s conclusion as to which
driver ran a red light based on calculation of coefficient of friction and
other elements).
30 Cf. Scott v. Kass, 48 A.D.3d 785, 851 N.Y.S.2d 649 (2008) (police
report reflecting party’s admission at scene of accident and presenting
diagram of scene made by investigating officer). Police reports may,
however, be inadmissible as hearsay, see, e.g., Carignan v. Wheeler, 153
N.H. 465, 898 A.2d 1011 (2006), or because they contained mere opinion of
an officer who did not qualify as an accident reconstruction expert. See
Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880 (Tex. App. 2004).
31 See Stumpf v. Nye, 950 A.2d 1032 (Pa. Super. Ct. 2008)
(discussing when such a plea is admissible and when not).
32 Some states have admitted such evidence, see Scott v. Robertson,
583 P.2d 188 (Alaska 1978); others not.
33 See §§ 12.6 to 12.8.
34 See Considine v. City of Waterbury, 279 Conn. 830, 905 A.2d 70
(2006) (building code applicable only to future construction was
nevertheless evidence of present standard of care and admissible, noting
that voluntary safety codes are admissible).
35 See, e.g., Rando v. Anco Insulations Inc., 16 So.3d 1065 (La. 2009)
(“Circumstantial evidence … is evidence of one fact, or of a set of facts,
from which the existence of the fact to be determined may reasonably be
inferred”).
36 E.g., Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5
(2010) (the fact that a bicycle is not equipped with lights “does not create
the inference that the bicycle is defective and unreasonably dangerous,”
quoting). Res ipsa loquitur aside, this book does not use the term inference
to describe ultimate evaluations of conduct or products like the conclusion
that an actor is negligent.
37 Johnson v. Yates, 31 N.C. App. 358, 229 S.E.2d 309 (1976)
(excluding a trooper’s opinion testimony about speed because the facts
were quite sufficient to permit a determination).
38 Kimberlin v. PM Transport, 563 S.E.2d 665 (Va. 2002). This
simple inference may be expressed in terms of presumption—the
defendant is presumed to have seen an obvious condition he encounters, or
to have been negligent in failing to see it. Peschke v. Carroll Coll., 280
Mont. 331, 929 P.2d 874 (1996); Branham v. Loews Orpheum Cinemas,
Inc., 31 A.D.3d 319, 819 N.Y.S.2d 250 (2006).
39 Faust v. Albertson, 167 Wash.2d 531, 222 P.3d 1208 (2009).
40 See Foddrill v. Crane, 894 N.E.2d 1070 (Ind. Ct. App. 2008).
41 Prignano v. Prignano, 934 N.E.2d 89, 343 Ill.Dec. 89 (App. Ct.
2010) (“any fact or issue can be proved by circumstantial evidence” as well
as direct evidence and “[c]ircumstantial evidence is entitled to the same
consideration as any other type of evidence”); Fitzpatrick v. Natter, 599
Pa. 465, 486, 961 A.2d 1229, 1242 (2008) (“Circumstantial evidence is
entitled to as much weight as direct evidence, and is admissible to prove
all elements of a negligence claim”).
42 See Fitzpatrick v. Natter, 599 Pa. 465, 486, 961 A.2d 1229, 1242
(2008) (“Circumstantial evidence is entitled to as much weight as direct
evidence, and is admissible to prove all elements of a negligence claim”
and may be “less likely to be falsely prepared and arranged”); Faust v.
Albertson, 167 Wash.2d 531, 222 P.3d 1208 (2009).
43 See, e.g., Blount v. Bordens, Inc., 910 S.W.2d 931 (Tex. 1995). For
a fuller discussion of issues related to circumstantial evidence and
presumptions from proof, see 1 Dobbs, Hayden & Bublick, The Law of
Torts § 166 (2d ed. 2011 & Supp.)
44 E.g., Walski v. Tiesenga, 72 Ill.2d 249, 381 N.E.2d 279 (1978).
45 E.g., Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349 (6th Cir.
1992) (expert testimony, based on studies, was inadequate to show that
drug Bendectin was dangerous).
46 See Hirst v. Inverness Hotel Corp., 544 F.3d 221, 227 n.8 (3d Cir.
2008) (although ultimate opinions may now sometimes be admitted, rules
also exclude “opinions that are not helpful to the trier of fact, a protection
against opinions which would merely tell the jury what result to reach,
somewhat in the manner of the oath-helpers of an earlier day”); Webb v.
Omni Block, Inc., 216 Ariz. 349, 353, 166 P.3d 140, 144 (Ct. App. 2007)
(“opinion testimony on an ultimate issue must still be helpful to the trier
of fact and cannot be couched in legal conclusions that simply opine how
juries should decide cases;” testimony attributing percentages of fault to
various parties should have been excluded under this rule).
47 Brugh v. Peterson, 183 Neb. 190, 159 N.W.2d 321, 29 A.L.R.3d
236 (1968).
48 E.g., Downey v. Bob’s Discount Furniture Holdings, Inc., 633 F.3d
1, 84 Fed.R.Evid.Serv. 640, 78 Fed.R.Serv.3d 621 (1st Cir. 2011) (No
expert testimony was needed at all in a case where plaintiff alleged that
the defendant delivered new furniture infected by bedbugs that caused the
plaintiffs an injury; “This is not a highly technical or scientific field, but,
rather, a mundane occurrence that falls within the realm of common
experience. Consequently, no expert testimony was necessary to establish
the standard of care.”); District of Columbia v. Harris, 770 A.2d 82 (D.C.
2001) (whether police adequately investigated for signs of injury to
children could be decided by jury without expert testimony); Allison v.
Manetta, 284 Conn. 389, 933 A.2d 1197 (2007) (truck parked so as to
partially block road while driver addressed hazardous road condition; no
expert testimony was required as the jury could judge negligence);
Holcombe v. NationsBanc Fin. Servs. Corp., 248 Va. 445, 450 S.E.2d 158
(1994) (expert not required to establish proper angle for storing partitions
that fell on the plaintiff); cf. Snyder v. Injured Patients & Families Comp.
Fund, 768 N.W.2d 271 (Wis. Ct. App. 2009) (noting that matters within
common knowledge of the jury require no expert testimony, holding that
adequacy of psychiatric unit’s search for weapons was not a medical issue
governed by the special medical malpractice statutes).
49 E.g., Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d
Cir. 1996); Habershaw v. Michaels Stores, Inc., 42 A.3d 1273 (R.I. 2012).
50 When the defendant literally owes no duty to the plaintiff, the
defendant is free to be negligent, so the inference of negligence is of no
assistance to the plaintiff in that case. When the defendant owes a reduced
duty, such as a duty only to avoid willful misconduct, the facts might
justify an inference of negligence but not an inference of willful or reckless
behavior. In such cases, res ipsa loquitur does not aid the plaintiff. See
Restatement Second of Torts § 328D cmt. j (1965). Conversely, if the
defendant owes some especially high duty of care, res ipsa loquitur may
apply with special ease. See Irwin v. Pacific Sw. Airlines, 133 Cal.App.3d
709, 184 Cal.Rptr. 228 (1982).
51 E.g., Brewster v. United States, 542 N.W.2d 524 (Iowa 1996)
(evidence should show that on the whole, “it is more likely that the event
was caused by negligence than that it was not”); Banks v. Beckwith, 762
N.W.2d 149 (Iowa 2009) (“Banks was not required to refute any other
possibilities for the breakage. He was only required to provide substantial
evidence that it was more likely than not negligence was the cause of the
event. He met this burden.”).
52 Restatement Second of Torts § 328D(1)(b) (defendant’s
responsibility indicated when evidence sufficiently eliminates other
responsible causes); Dickens v. Sahley Realty Co., Inc., 756 S.E.2d 484
(2014) (res ipsa only when “defendant’s negligence is the only inference
that can reasonably and legitimately be drawn from the circumstances”).
53 That Restatement criticizes some of the other common
formulations including one most like that stated in the text above. See
17 cmt. b (2010).
Harm) § 17 (2010) puts the point affirmatively, that the accident must be
of the type that ordinarily does occur as a result of negligence.
Restatement Second of Torts § 328D (1965) uses the negative formulation.
David Kaye, Probability Theory Meets Res Ipsa Loquitur, 77 Mich L. Rev.
1456, 1476 (1979).
Harm) § 17 (2010).
56 Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863).
57 E.g., Kerns v. Sealy, 496 F.Supp.2d 1306 (S.D. Ala. 2007).
58 See Clinkscales v. Nelson Secs., Inc., 697 N.W.2d 836 (Iowa 2005);
Ianotta v. Tishman Speyer Props., Inc., 46 A.D.3d 297, 852 N.Y.S.2d 27
(2007) (“neither plaintiff’s failure to specifically plead res ipsa loquitur nor
the allegation of specific acts of negligence … constitutes a bar to the
invocation or res ipsa loquitur where the facts warrant its application”); cf.
Pete v. Youngblood, 141 P.3d 629 (Utah Ct. App. 2006) (res ipsa loquitur
must be pleaded only if the plaintiff also relies on specific acts of
negligence in addition to res ipsa loquitur). The plaintiff may be required
to plead facts that would justify invoking res ipsa loquitur, however. See
Heastie v. Roberts, 226 Ill.2d 515, 877 N.E.2d 1064, 315 Ill.Dec. 735
(2007).
59 Many of the rear-end decisions ignore res ipsa loquitur
terminology and concentrate on inferences of specific negligence, such as
the inference that the defendant was following too closely. Garnot v.
Johnson, 239 Va. 81, 387 S.E.2d 473 (1990) (following too closely). Or they
analyze the case as a statutory violation, again for following too closely.
Jones v. Bennett, 306 N.J.Super. 476, 703 A.2d 1008 (1998).
60 See Sullivan v. Snyder, 374 A.2d 866 (D.C. 1977) (discussing res
ipsa loquitur in a rear end collision case where an inference of specific
negligence seems more plausible); Lambrecht v. Estate of Kaczmarczyk,
241 Wis. 2d 804, 623 N.W.2d 751 (2001) (court permitted a res ipsa
loquitur inference of negligence but in one passage seemed to say that
some specific acts of negligence could be inferred and even that failure of
the driver to wear a seat-belt might have been negligence contributing to
loss of control).
61 In Morris v. Wal-Mart Stores, Inc., 330 F.3d 854 (6th Cir. 2003), a
federal diversity case, strong evidence warranted an inference that the
plaintiff slipped on water draining from a freezer the defendant had
installed in its store without a plug. Given that inference, the defendant’s
conduct was known and could be evaluated as negligent or non-negligent
without reference to res ipsa loquitur. However, the plaintiff characterized
her claim as a res ipsa loquitur case, which led the federal judges to a
lengthy dispute over the scope and application of the “control” rule for res
ipsa, none of which seems necessary when the circumstances show that
the defendant probably created the danger by specific, known conduct, the
risks and utilities of which could be evaluated directly. In Quinby v.
Plumsteadville Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), health care
providers left a quadriplegic man on an exam table unattended and
unsecured. He fell to the floor. No one could say with confidence what
triggered the fall, since he could not move himself. However, the conduct of
the health care providers in leaving him unattended was undisputed. The
court said this was a res ipsa loquitur case and also said that the jury
would be compelled on these facts to find negligence. The use of res ipsa
suggests that there was some unknown negligence other than leaving the
helpless patient unattended and insecure, but it seems difficult to say that
some other and unknown negligence was probable. On the other hand, if
res ipsa loquitur terminology is not used at all, the court could still hold,
as it did, that leaving a helpless patient would be negligence as a matter of
law.
Harm) § 17 cmt. j (2010).
63 See K-Mart Corp. v. Gipson, 563 N.E.2d 667 (Ind. Ct. App. 1990).
64 See, e.g., Chapman v. Harner, 339 P.3d 519 (Colo. 2014); Banks v.
Beckwith, 762 N.W.2d 149, 152 (Iowa 2009) (res ipsa loquitur permits but
does not compel the inference of negligence); Romero v. Brenes, 189
Md.App. 284, 984 A.2d 346 (2009); Khan v. Singh, 200 N.J. 82, 91, 975
A.2d 389, 394 (2009) (“permits the jury to infer negligence … effectively
reducing the plaintiff’s burden of persuasion, but not shifting the burden
of proof); Deuel v. Surgical Clinic, PLLC, 2010 WL 3237297 (Tenn. Ct.
App. 2010) (res ipsa loquitur “permits, but does not compel, a jury to infer
negligence from the circumstances of an injury”; it allows an inference of
negligence, but it does not alter burden of proof); Restatement Third of
Torts (Liability for Physical and Emotional Harm) § 17 cmt j (2010).
65 See Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991)
(stating when a res ipsa loquitur case is made out, that creates “prima
facie evidence of negligence and shifts to the defendant the burden of
proving that it was not caused through any lack of care on its part”);
Brown v. Poway Unified Sch. Dist., 4 Cal.4th 820, 826, 843 P.2d 624, 627,
15 Cal.Rptr. 2d 679, 682 (1993) (by statute, res ipsa loquitur is a
presumption affecting the burden of proof and “the burden of producing
evidence ‘require[s] the trier of fact to assume the existence of the
presumed’ fact unless the defendant introduces evidence to the contrary”).
Harm) § 17, Reporters’ Notes to Comment j (2010).
67 De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116
(1st Cir. 1991) (hospital mixed newborn babies of two different mothers
and did not discover the mistake for over a year); Quinby v. Plumsteadville
Family Practice, Inc., 907 A.2d 1061 (Pa. 2006) (holding that the
reasonable people could not do other than to find negligence where health
care providers left helpless patient alone and unsecured on table from
which he fell); Imig v. Beck, 115 Ill.2d 18, 503 N.E.2d 324 (1986)
(recognizing that some inferences may be exceptionally strong and that in
some cases strong enough to warrant a directed verdict for the plaintiff,
but holding that the facts before the court did not warrant application of
such an exceptional rule); Bustillo v. Matturro, 292 A.D.2d 554, 740
N.Y.S.2d 360 (2002) (rear-end collision, summary judgment for the
plaintiff).
68 A strong example is Harder v. F.C. Clinton, Inc., 948 P.2d 298
(Okla. 1997). In Morgan v. Children’s Hosp., 18 Ohio St. 3d 185, 190, 480
N.E.2d 464, 467 (1985), the court said: “It is a well-established principle
that a court may not refuse as a matter of law to instruct on the doctrine of
res ipsa loquitur merely upon the basis that the defendant’s evidence
sufficiently rebuts the making of such an inference…. ‘The trial court, in a
jury trial, in a case which calls for the application of the rule of res ipsa
loquitur, is without authority to declare, as a matter of law, that the
inference of negligence which the jury is permitted to draw, has been
rebutted or destroyed by an explanation of the circumstances offered by
the defendant, and such action on the part of the trial court is an invasion
of the province of the jury.’ ”
69 E.g., Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St. 3d 300,
927 N.E.2d 1112 (2010) (defendant’s rebuttal evidence would eliminate the
likelihood of negligence established by the plaintiff’s evidence); Van Hook
v. Anderson, 64 Wash.App. 353, 824 P.2d 509 (1992) (sponge remained in
patient’s body after operation, doctor showed that nurses had reported to
him an erroneous sponge count).
70 Mobil Chem. Co. v. Bell, 517 S.W.2d 245 (Tex. 1974).
71 E.g., Reynolds Metals Co. v. Yturbide, 258 F.2d 321 (9th Cir.
1958); Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d
436 (1944); Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 678 N.E.2d 456,
655 N.Y.S.2d 844 (1997) (18-inch towel discovered in patient after
hysterectomy, evidence that all the towels were carefully counted does not
necessarily dispel inference of negligence by surgeons or hospital);
Goldstein v. Levy, 74 Misc. 463, 132 N.Y.S. 373 (App. Term. 1911).
72 Hailey v. Otis Elevator Co., 636 A.2d 426 (D.C. 1994) (“Given the
power of res ipsa loquitur … and the consequent caution with which it
should be applied … [it] must be based upon a widespread consensus of a
common understanding”).
73 “Could it have been reasonably found by the jury that the accident
which occurred in this case is of a kind which more probable than not
would not have occurred in the absence of negligence upon the part of
Fisher? That is a question which cannot be answered with any precision
because we do not have statistical data on the relative probability of the
negligence of drivers as a cause of this kind of accident. The determination
of where the probabilities lie must, ordinarily, be made upon the basis of
past experience as it is seen and appraised by the court. ‘These are the
judgments of common sense.’ ” Kaufman v. Fisher, 230 Or. 626, 639, 371
P.2d 948, 954 (1962) (quoting 2 Harper & James, Torts § 15.2, at 879
(1956)).
74 Kubera v. Barnes & Noble Booksellers, Inc., 2009 WL 862168
(Conn. Super. Ct. 2009); McDougald v. Perry, 716 So.2d 783, 786 (Fla.
1998) (“common sense dictates an inference that both a spare tire carried
on a truck and a wheel on a truck’s axle will stay with the truck unless
there is a failure of reasonable care”); Cleary v. Manning, 884 N.E.2d 335,
338 (Ind. Ct. App. 2008); Winters v. Wright, 869 So.2d 357, 362 (Miss.
2003) (medical malpractice res ipsa loquitur “where a layman can observe
and understand the negligence as a matter of common sense and practical
experience”).
75 Permitting res ipsa loquitur in airplane crashes: Dunn v. Grand
Canyon Airlines, Inc., 66 F.3d 334, unpublished opinion available, 1995
WL 547723 (9th Cir. 1995); Widmyer v. Southeast Skyways, Inc., 584 P.2d
1 (Alaska 1978); Newing v. Cheatham, 15 Cal.3d 351, 540 P.2d 33, 124
Cal.Rptr. 193 (1975). Earlier decisions refused to permit res ipsa in
airplane cases, some of which were also private plane cases and are
conceivably distinguishable on that ground.
76 Cleary v. Manning, 884 N.E.2d 335, 338 (Ind. Ct. App. 2008).
77 Heastie v. Roberts, 226 Ill.2d 515, 877 N.E.2d 1064, 315 Ill.Dec.
735 (2007).
78 See Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (physician
injecting nerve block in back punctured lung, not enough information for
res ipsa loquitur); Ruiz v. Walgreen Co., 79 S.W.3d 235, 239 (Tex. App.
2002) (pharmacy misfilled a prescription for Magsal with Nizoral; the
patient became ill and was hospitalized, but res ipsa loquitur could not
apply partly because the plaintiffs did not “explain how laymen would
know that substitution in this case was improper”).
79 See Ward v. Mount Calvary Lutheran Church, 178 Ariz. 350, 355,
873 P.2d 688, 694 (Ct. App. 1994); Andrews v. Burke, 55 Wash. App. 622,
628–29, 779 P.2d 740, 744 (1989); Fehrman v. Smirl, 20 Wis.2d 1, 121
N.W.2d 255 (1963).
80 Siverson v. Weber, 57 Cal.2d 834, 837, 372 P.2d 97, 99 (1962)
(“The fact that a particular injury suffered by a patient as the result of an
operation is something that rarely occurs does not in itself prove that the
injury was probably caused by the negligence of those in charge of the
operation.”); Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or.App.
637, 978 P.2d 429 (1999) (similar).
81 But in Calabretta v. Nat’l Airlines, Inc., 528 F.Supp. 32 (E.D.N.Y.
1981), where the passenger ultimately lost her hearing, the court held that
res ipsa loquitur applied because ear problems do not commonly result
from flights.
82 Kramer v. Petroleum Helicopters, Inc., 999 So. 2d 101 (La. Ct.
App. 2008) (in an action against helicopter manufacturer, “the
circumstances surrounding the crash suggested the possibility of other
causes of the crash. The flight was at night, was conducted at an altitude
that may have been as low as the tree tops, and in an area with rolling
terrain. [S]patial disorientation … can prevent a pilot from recognizing
that the craft is descending rather than ascending;” res ipsa loquitur did
not apply); see Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 17 cmt. b (2010).
83 Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d
1339 (Fla. 1978).
84 Coulter v. Michelin Tire Corp., 622 S.W.2d 421 (Mo. Ct. App.
1981) (jury could infer that tire produced by defendant was defective when
sold where (a) it was new when it exploded and (b) expert evidence
excluded the possibility of external damage); Hofer v. Gap, Inc., 516
F.Supp.2d 161 (D. Mass. 2007) (sandal breaking, causing serious fall on its
first use, jury can infer negligence).
85 E.g., Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P.2d 436
(1944); see Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 17 cmt. d (2010).
86 LePage v. Horne, 262 Conn. 116, 809 A.2d 505 (2002) (putting
baby to sleep on her stomach, SIDS death); Mireles v. Broderick, 117 N.M.
445, 872 P.2d 863 (1994) (listing authorities); Sides v. St. Anthony’s Med.
Ctr., 258 S.W.3d 811 (Mo. 2008); States v. Lourdes Hosp., 100 N.Y.2d 208,
792 N.E.2d 151, 762 N.Y.S.2d 1 (2003); Morgan v. Children’s Hosp., 18
Ohio St. 3d 185, 480 N. E. 2d 464 (1985). Contra Wright v. United States,
280 F.Supp.2d 472 (M.D.N.C. 2003) (North Carolina law); Butler-Tulio v.
Scroggins, 139 Md.App. 122, 774 A.2d 1209 (2001).
87 See, emphasizing this point, States v. Lourdes Hospital, 100
N.Y.2d 208, 792 N.E.2d 151, 762 N.Y.S.2d 1 (2003).
88 Lambrecht v. Estate of Kaczmarczyk, 241 Wis.2d 804, 623 N.W.2d
751 (2001) (with three judges dissenting).
89 Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411, 425 (2d Cir. 2004)
(Calabresi, J., concurring).
90 E.g., Haugen v. BioLife Plasma Servs., 714 N.W.2d 841 (N.D.
2006). Courts sometimes phrase this as a rule that “direct evidence
precludes use of res ipsa loquitur, presumably meaning evidence” of
specific negligent acts that explain the accident. See Yorke v. Novant
Health, Inc., 666 S.E.2d 127 (N.C. Ct. App. 2008).
Harm) § 17 cmt. g (2010).
92 Gubbins v. Hurson, 885 A.2d 269, 283 (D.C. 2005) (“This court
permits the plaintiff in a proper case to rely upon both res ipsa loquitur
and proof of specific acts of negligence.”); Clinkscales v. Nelson Sec., Inc.,
697 N.W.2d 836 (Iowa 2005) (plaintiff can plead and get to the jury on both
res ipsa loquitur and evidence of specific negligence, although jury finding
specific negligence cannot entertain res ipsa loquitur); Abbott v. Page
Airways, Inc., 23 N.Y.2d 502, 512, 245 N.E.2d 388, 393 (1969) (“there can
be no logical or reasonable basis for requiring a plaintiff to choose between
Res ipsa and specific evidence of negligence or for precluding him from
relying on Res ipsa principles once evidence of negligence had been
introduced, unless the two alternate modes of proof are fundamentally or
inherently inconsistent. Quite obviously, there is no such inconsistency”).
93 Conner v. Menard, Inc., 705 N.W.2d 318 (Iowa 2005).
94 E.g., Anderson v. Service Merchandise Co., Inc., 240 Neb. 873, 485
N.W.2d 170 (1992); but see Hagler v. Coastal Farm Holdings, Inc., 309
P.3d 1073 (Or. 2013).
95 E.g., Cardina v. Kash N’ Karry Food Stores, Inc., 663 So.2d 642
(Fla. Dist. Ct. App. 1995) (case of tomatoes falling from stack).
96 Housing Auth. of City of Rolla v. Kimmel, 771 S.W.2d 932 (Mo. Ct.
App. 1989); Hill v. Thompson, 484 P.2d 513 (Okla. 1971).
97 Neace v. Laimans, 951 F.2d 139 (7th Cir. 1991); McDougald v.
Perry, 716 So.2d 783 (1998).
98 McGonigal v. Gearhart Indus., Inc., 851 F.2d 774 (10th Cir. 1988).
99 Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P.2d 436
(1944).
100 E.g., Trujeque v. Service Merchandise Co., 117 N.M. 388, 872 P.2d
361 (1994).
101 Koch v. Norris Pub. Power Dist., 10 Neb. App. 453, 632 N.W.2d
391 (2001).
102 Cosgrove v. Commonwealth Edison Co., 315 Ill.App. 3d 651, 734
N.E.2d 155, 248 Ill.Dec. 447 (2000); Harvey v. Metro. Utils. Dist. of
Omaha, 246 Neb. 780, 523 N.W.2d 372 (1994) (gas leak at meter controlled
by the defendant utility).
103 State Farm Fire & Cas. Co. v. Municipality of Anchorage, 788 P.2d
726 (Alaska 1990) (underground water pipe); cf. Pikersgill v. City of New
York, 642 N.Y.S.2d 469 (Civ. Ct. 1996) (sewer backup).
104 Roberts v. Weber & Sons, Co., 248 Neb. 243, 533 N.W.2d 664
(1995). Some courts categorically refuse to apply res ipsa to cattle-on-the-
highway cases, but at least some of the cases refusing res ipsa are justified
in doing so on their particular facts. See Vanderwater v. Hatch, 835 F.2d
239 (10th Cir. 1987).
105 Aldana v. School City of E. Chicago, 769 N.E.2d 1201 (Ind. Ct.
App. 2002) (bus left clear, dry road, fishtailed back onto highway, throwing
passengers against seats); Eaton v. Eaton, 119 N.J. 628, 575 A.2d 858
(1990); Porterfield v. Brinegar, 719 S.W.2d 558 (Tex. 1986); cf. Lambrecht
v. Estate of Kaczmarczyk, 241 Wis.2d 804, 623 N.W.2d 751 (2001) (driver
rear-ended two cars traveling same direction, crossed intersection and T-
boned plaintiff’s car, res ipsa could be invoked).
106 E.g., Atlanta Coca-Cola Bottling Co. v. Ergle, 128 Ga.App. 381,
196 S.E.2d 670 (1973).
107 See Benham v. King, 700 N.W.2d 314 (Iowa 2005) (dental chair
collapsed with patient when dentist actuated the gear that raised it, no
reason for dentist to inspect chair made for professional use, finding of
negligence impermissible).
108 Fowler v. Seaton, 61 Cal.2d 681, 394 P.2d 697, 39 Cal.Rptr. 881
(1964) (child 3 years and 10 months, unable to talk about injury, suffering
serious head injury and eye damage).
109 Ward v. Forrester Day Care, Inc., 547 So.2d 410 (Ala. 1989) (11-
week-old baby returned from day care with broken arm); cf. Persinger v.
Step by Step Infant Dev. Ctr., 253 Ga.App. 768, 560 S.E.2d 333 (2002)
(infant’s broken leg coupled with medical testimony that break was
inconsistent with the ordinary fall testified to by defendant’s witnesses
created fact-question for jury).
110 Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291 (1949) (5-week-
old baby, apparently chewed by something, possibly rats, while in
defendant’s care).
111 Sides v. St. Anthony’s Med. Ctr., 258 S.W.3d 811 (Mo. 2008)
(unexplained disconnection of immobile quadriplegic patient’s oxygen
supply resulting in his death); DeCarlo v. Eden Park Health Servs., Inc.,
66 A.D.3d 1211, 887 N.Y.S.2d 315 (2009) (non-ambulatory patient had
unexplained broken bones; though her bones were delicate, this was a
condition the nursing home should have taken into account in its
treatment); Harder v. F.C. Clinton, Inc., 948 P.2d 298 (Okla. 1997)
(nursing home resident somehow ingested an overdose of a medicine that
was not prescribed).
112 Tierney v. St. Michael’s Med. Ctr., 214 N.J.Super. 27, 518 A.2d
242 (1986) (17-month-old infant fell from crib in hospital).
113 Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944); but cf. J.
E. v. Beth Israel Hosp., 295 A.D.2d 281, 744 N.Y.S.2d 166 (2002) (woman
underwent operation in defendant’s hospital, and on returning home
discovered pain and tenderness later identified as resulting from sexual
assault; claim dismissed because court states that assault could have
occurred elsewhere). Perhaps the court in J.E. was relying on facts it did
not report; the plaintiff’s verified complaint seems to imply unavoidably
that the injury was not inflicted while she was conscious.
114 In Lamb v. State, 2002 WL 31319755 (Tenn. Ct. App. 2002), the
plaintiff, with severe mental limitations, may have been abused, but
although the possible abuse was discovered after a period of custody by a
caretaker, it could have occurred at other times. Thus the predicate for res
ipsa loquitur was missing.
Harm) § 17 (2010). Cf. Winfrey v. GGP Ala Moana LLC, 308 P.3d 891
(Haw. 2013) (insufficient evidence to create inference that mall owner was
negligent when patron became stuck in rooftop exhaust duct); Dickens v.
Sahley Realty Co., Inc., 756 S.E.2d 484 (W. Va. 2014) (summary judgment
properly granted where plaintiffs did not offer sufficient evidence that
natural erosion, rather than defendant’s negligence, caused a pond to
encroach on their property).
116 E.g., Heastie v. Roberts, 226 Ill.2d 515, 877 N.E.2d 1064, 315
Ill.Dec. 735 (2007) (defendant owned hospital room where patient caught
fire, patient could not have set the fire; this establishes control sufficient
to permit plaintiff to go to jury on res ipsa loquitur).
117 Potthast v. Metro-North R.R., 400 F.3d 143 (2d Cir. 2005).
118 See, e.g., Hansen v. City of Pocatello, 145 Idaho 700, 702,184 P.3d
206, 208 (2008); Banks v. Beckwith, 762 N.W.2d 149, 152 (Iowa 2009);
Contreras v. Vannoy Heating & Air Conditioning, Inc., 270 Mont. 393, 892
P.2d 557 (1995) (defendant did not have exclusive control over exploding
boiler); Ebanks v. New York City Transit Auth., 70 N.Y.2d 621, 512 N.E.2d
297 (1987) (escalator injury).
119 Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436
(1944); Anderson v. Service Merch. Co., Inc., 240 Neb. 873, 485 N.W.2d
170 (1992). See Aldana v. School City of E. Chicago, 769 N.E.2d 1201, 1205
(Ind. Ct. App. 2002) (sufficient control if “any reasonably probable causes
for the injury were under the control of the defendant,” driver need not be
in control of the road condition as well as his vehicle); Mireles v. Broderick,
117 N.M. 445, 872 P.2d 863 (1994) (“the meaning of ‘exclusive control’ in
res ipsa loquitur cases is fact specific within any given case”); Dalley v.
Utah Valley Reg’l Med. Ctr., 791 P.2d 193 (Utah. 1990).
120 See Potthast v. Metro-North R.R., 400 F.3d 143, 149 n.7 (2d Cir.
2005) (Calabresi, J.: “The meaning given to exclusive control in the cases,
however, is anything but consistent with what the requirement, on its
face, would seem to demand”).
121 Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997)
(“Rather than expound further glosses, caveats and corollaries upon our
past formulations of res ipsa loquitur, we determine to make a more
substantial change….”; extended exploration of the problems with the
control rule); cf. Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 678 N.E.2d
456 (1997) (first requiring exclusive control but then restating the rule to
say “It is enough that the evidence supporting the three conditions afford a
rational basis for concluding that “it is more likely than not” that the
injury was caused by defendant’s negligence [A]ll that is required is that
the likelihood of other possible causes of the injury “be so reduced that the
greater probability lies at defendant’s door,” quoting 2 Harper and James,
Torts § 19.7).
122 Restatement Second of Torts § 328D(1)(b) (defendant’s
responsibility indicated when evidence sufficiently eliminates other
responsible causes). See also Giles v. City of New Haven, 228 Conn. 441,
636 A.2d 1335 (1994) (quoting the Restatement Second and several other
authorities); Bonilla v. University of Mont., 328 Mont. 41, 116 P.3d 823
(2005) (using the other responsible causes approach of Restatement
Second but concluding that other causes had not been eliminated); Quinby
v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061 (2006)
(quoting and applying Restatement Second); Cruz v. DaimlerChrysler
Motors Corp., 66 A.3d 446 (R.I. 2013) (expressly adopting Restatement
Second).
Harm) § 17 (2010). For detailed discussion of formulations of the rule, see
id. § 17 cmt. b. Cf. Morris v. Wal-Mart Stores, Inc., 330 F.3d 854 (6th Cir.
2003) (“Exclusive control is merely one fact which establishes the
responsibility of the defendant; and if it can be established otherwise,
exclusive control is not essential to a res ipsa loquitur case,” quoting from
helpful Tennessee cases); Sides v. St. Anthony’s Med. Ctr., 258 S.W.3d
811, 821 (Mo. 2008) (“Exclusive control is merely one fact which
establishes the responsibility of the defendant; and if it can be established
otherwise, exclusive control is not essential to a res ipsa loquitur case.”).
124 See Sheltra v. Rochefort, 667 A.2d 868 (Me. 1995).
125 Brown v. Poway Unified Sch. Dist., 4 Cal.4th 820, 843 P.2d 624, 15
Cal.Rptr.2d 679 (1993) (slip and fall).
126 E.g., Dillworth v. Gambardella, 970 F.2d 1113 (2d Cir. 1992).
127 Novak Heating & Air Conditioning v. Carrier Corp., 622 N.W.2d
495 (Iowa 2001) (plaintiff’s new goods arrived damaged after they had
been in the hands of shipper and then carrier; held, res ipsa loquitur
cannot apply to consecutive control cases).
128 E.g., Schlanger v. Doe, 53 A.D.3d 827, 861 N.Y.S.2d 499 (2008)
(glass shattered on first vehicle, causing following vehicle to take evasive
maneuver which led to collision with another; res ipsa could apply against
first vehicle operator).
129 Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436
(1944). Cf. Anderson v. Service Merchandise Co., Inc., 240 Neb. 873, 485
N.W.2d 170 (1992) (one who worked on lighting fixture earlier excluded
not likely to be the person responsible for its fall much later, leaving
operator of premises in “exclusive control”).
130 Collins v. Superior Air-Ground Ambulance Serv., Inc., 789 N.E.2d
394 (Ill. App. Ct. 2003). Cf. Brown v. Racquet Club of Bricktown, 95 N.J.
280, 471 A.2d 25 (1984).
131 Trujeque v. Service Merchandise Co., 117 N.M. 388, 872 P.2d 361
(1994) (should be safe for any number of customers).
132 Potthast v. Metro-North R.R., 400 F.3d 143, 149 n.7 (2d Cir. 2005)
(chair provided by employer for use of many people collapsed, res ipsa
loquitur can be applied); Brisbon v. Mount Sinai Hosp., 8 Misc.3d 47, 798
N.Y.S.2d 648 (App. Term. 2005) (defendant’s handrail came off in
plaintiff’s hand, causing fall; although organizations outside defendant’s
control used the area, it was not open to the general public, so trier could
still find that defendant was negligent rather than some vandal); contra
Rivera-Emerling v. M. Fortunoff of Westbury Corp., 281 A.D.2d 215, 217,
721 N.Y.S.2d 653, 566 (2001) (chair collapsed with the plaintiff; held, res
ipsa loquitur does not apply because “the chair was on an open sales floor
to which innumerable shoppers had access. Hence, there was no basis for
concluding that defendant had exclusive control of the chair.”).
133 Darrough v. Glendale Heights Cmty. Hosp., 234 Ill.App.3d 1055,
600 N.E.2d 1248, 175 Ill. Dec. 790 (1992). Similarly a chair on business
premises open to the public. Trujeque v. Service Merchandise Co., 117
N.M. 388, 872 P.2d 361 (1994).
134 E.g., Cox v. May Dep’t Store Co., 183 Ariz. 361, 903 P.2d 1119 (Ct.
App. 1995) (plaintiff’s jacket caught in escalator handrail assembly);
Rosenberg v. Otis Elevator Co., 366 N.J.Super. 292, 841 A.2d 99 (2003);
Qualls v. United States Elevator Corp., 863 P.2d 457 (Okla. 1993)
(automatic elevator fell from second floor to basement, res ipsa against
installer-maintainer; control is in the person who “assumes responsibility
for the fitness of an instrumentality”).
135 Brewster v. United States, 542 N.W.2d 524 (Iowa 1996).
136 Seeley v. New York Tel. Co., 281 A.D. 285, 120 N.Y.S.2d 262
(1953).
137 E.g., Dalley v. Utah Valley Reg’l Med. Ctr., 791 P.2d 193 (Utah.
1990). Cf. Collins v. Superior Air-Ground Ambulance Serv., Inc., 338 Ill.
App.3d 812, 789 N.E.2d 394 (2003) (bedridden nursing home resident of
five days, unable to speak, was taken home suffering dehydration and
broken leg; court’s reasoning supported res ipsa loquitur against both
ambulance service who transported resident and the nursing home);
Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944). Judge Calabresi
has given special emphasis to the defendant’s superior knowledge as a
ground or at least a factor in the decision to apply res ipsa loquitur. See
Williams v. KFC Nat’l Mgmt. Co, 391 F.3d 411 (2d Cir. 2004) (Calabresi,
J., concurring).
138 For a fuller discussion of joint actors cases and superior knowledge
as a rationale in res ipsa loquitor see 1 Dobbs, Hayden & Bublick, The
Law of Torts § 174 (2d. ed. 2011 & Supp.).
139 Seavey long ago noted the close analogy to the bailment rule that
when a bailee cannot return the bailed chattel in good condition, the
burden shifts to the bailee to explain the loss or damage. Warren A.
Seavey, Res Ipsa Loquitur: Tabula in Naufragio, 63 Harv. L. Rev. 643, 647
(1950). The idea is now so strongly associated with res ipsa that the
bailment rule itself may be explained as a res ipsa rule. E.g., Kinder v.
Fantasy Coachworks, Ltd., 762 S.W.2d 533 (Mo. Ct. App. 1988).
311
Chapter 14
ACTUAL HARM & FACTUAL CAUSE

Analysis
A. ACTUAL HARM
B. THE FACTUAL CAUSE REQUIREMENT
§ 14.2 Factual Cause and Four Forms of Common Issues
§ 14.3 Terminology and Structure: Factual Cause and Scope of Liability
(Proximate Cause)
C. THE BUT-FOR TEST OF CAUSATION
§ 14.5 But-For Analysis and the Hypothetical Alternative Case
D. PROBLEMS WITH AND ALTERNATIVES TO THE BUT-FOR TEST
§ 14.6 Alternate Tests When But-For Analysis Fails: The Substantial
Factor Test and Tests Aggregating Conduct
E. PROVING CAUSATION
§ 14.8 Evidence and Inferences of But-For Causation
F. PROVING WHICH DEFENDANT’S NEGLIGENCE CAUSED HARM
§ 14.9 Alternative Causes and the Shifted Burden of Proof
§ 14.10 Statistical Substitutes for Causation: Market Share Liability
G. SPECIAL PROBLEMS: WHAT HARM WAS CAUSED?
__________
A. ACTUAL HARM
Damages required. In a negligence action, the plaintiff is
required to prove that the defendant’s conduct caused legally
recognized damages. In part, this statement means that damages
are not presumed as they are in the case of some intentional torts;
the plaintiff who is not harmed by negligence cannot recover even
nominal damages.1 Physical harm satisfies the actual harm
requirement. According to the Restatement Third, physical harm
means “the physical impairment of the human body (‘bodily harm’)
or of real property or tangible personal property (‘property
damage’).”2 In turn, bodily harm is defined to include “physical
injury, illness, disease, impairment of bodily
312
function, and death.”3 Under these definitions, a scratch,

whether to the plaintiff’s arm or the paint on her car, satisfy the
actual harm requirement. The amount of damage does not matter.
Any detrimental change in the physical condition of a person’s body
or property will do.4 However, the plaintiff will not recover for
bodily changes that do not count as harm by way of pain or some
detriment,5 and when bodily changes or damage cannot be shown.6
Non-physical harms. When a plaintiff suffers physical harm to
person or property, negligence recovery is appropriate. A number of
cases question whether negligence that causes solely emotional or
economic harm will support liability. In a number of cases the
question is whether bodily changes, not physically harmful in
themselves, such as plural thickening from exposure to asbestos,
ground a claim for emotional harm.7 Often, as we will see in later
chapters, negligence that causes stand-alone emotional harm or
pure economic loss is governed by special rules.
B. THE FACTUAL CAUSE REQUIREMENT
§ 14.2 Factual Cause and Four Forms of Common
Issues
Defendant’s negligence as the factual cause of plaintiff’s
damages. The statement that defendant’s conduct caused damages
means that the plaintiff must prove not merely that she suffered
harm sometime after the defendant’s negligent act occurred but
also that the harm was caused in fact by the defendant’s conduct,8
and that the harm was caused by that part of the defendant’s
conduct that created unreasonable risks—the defendant’s
negligence.9 As with other factual matters, the plaintiff ordinarily
has the
313
burden of proof and persuasion and hence must prove that the
defendant’s negligence was more probably than not the cause of the
harm suffered.10
Four forms of causation issues. The factual cause requirement is
usually viewed as a straightforward issue: did he or didn’t he cause
harm to the plaintiff? That issue manifests itself for lawyers,
however, in at least four distinct forms.
Type 1 causation problem: scientific connection. One kind of
factual cause problem centers on scientific doubt, or at least on lay
ignorance about the connection between the defendant’s acts and
the plaintiff’s injury. Suppose the plaintiff gets skin cancer after
she is in an auto accident.11 Or that she is born with a birth defect
after her mother ingested the defendant’s drug during her
pregnancy.12 In such cases the plaintiff must present evidence to
prove that auto accidents can cause skin cancer or that the
defendant’s drug can cause birth defects.
Ability to cause harm generally and to plaintiff. The first
question raised in such cases is thus whether the putative source of
harm is in fact capable of causing such harm. If the defendant’s
conduct or product could not cause the harm claimed, perhaps
liability should be excluded. The ground stated could be that the
defendant was not negligent or that the harm was outside the
scope of the risk created by the defendant. However, the usual
approach now treats this problem as one of causation. Courts say
that when the defendant’s conduct is incapable of causing the harm
claimed by the plaintiff, the plaintiff has failed to prove general or
generic causation.13 Although such general causation is necessary
to the plaintiff’s case, it is not sufficient; the plaintiff must then go
further and present evidence that causation is not merely
scientifically possible, but that it existed in her particular case.14
For example, a plaintiff claiming harm from a prescription drug
must show both that the drug was capable of causing the condition
and that the plaintiff suffered from that condition.15 Likewise, if
science can establish causation only when a given fact or condition
is present, the plaintiff must establish the existence of that fact or
condition.16
314
Factual determinations. These causal issues raise questions of

fact in the scientific sense. On causal issues of this type, rules of
law describe the issue or dictate the evidence needed to address the
issues, but the causal issue itself is resolved by determinations of
fact, not rules of law.
Issues within common experience. Evidence needed on the
question of scientific causation varies with the facts. Sometimes
the causal issue is so much within common experience that no
testimony is required at all. For example, experience shows that
impacts can cause bruises, broken bones, painful muscles, and
ruptured organs, so we can readily believe that your fall caused the
bruise on your arm.17 Similarly, a court may not require expert
testimony to prove that blasting nearby could cause the cracks or
damage to your home a short time later.18 In these situations,
common knowledge and experience suffice to permit the trier to
infer a causal relationship between tort and injury.
Scientific evidence. However, when the causation issue is not
within ordinary understanding and experience, the question of
whether the defendant’s conduct could cause the plaintiff’s harm is
resolved by scientific or medical evidence.19 For example, whether
a rise in a patient’s sodium levels over a certain period of time can
cause a serious medical problem is not a matter within usual
experience and thus requires expert testimony.20 In addition, if
symptoms differ materially from the symptoms expected from
impact or they appear long after the impact, expert testimony may
be required.21 When expert testimony is required, often the focus
will be on the admissibility and sufficiency of the evidence.22
315
Type 2 causation problem: who or what is a cause of the harm?

Another kind of factual cause problem occurs when the plaintiff is
definitely injured by someone or something but cannot produce
evidence to indicate which person among many was the injurer. In
an old New York case, the plaintiff contracted typhoid after
exposure to contaminated water for which the defendant was
responsible. There were many other sources of typhoid, including
the common house fly and infected vegetables. So to show
causation, the plaintiff needed evidence to show that the water was
more probably the source of the disease than other things.
Although medical or scientific evidence is important as background
in this kind of case, the critical facts are likely to be more
mundane. The plaintiff’s repeated drinking of the contaminated
water over a period of time no doubt counted heavily in favor of a
finding that the water and not some fresh vegetable caused the
typhoid.23 The same is true in modern toxic tort cases. If the
plaintiff gets cancer after working around asbestos for many years,
the court may have no doubt that asbestos caused the cancer.
However, to hold a particular producer of asbestos liable, the
plaintiff must prove exposure to that company’s asbestos. If she
fails, she has not proved that that company was a factual cause of
her harm,24 though there are sometimes special rules to aid the
plaintiff.
Type 3 causation problem: would safe behavior have avoided
injury? A third kind of factual cause problem is one that generates
much academic writing. It cannot be resolved by medical or
scientific evidence or by proving which of several defendants was
the author of the plaintiff’s harm. Suppose the defendant does not
check his rear view mirror before backing up and in consequence
he backs over a child squatting behind the car. The defendant is
negligent—he should have checked the mirror—but the critical
point for a factual cause argument is that he would not have
avoided the injury by checking the mirror, since that would not
have revealed the squatting child. Courts say in this kind of case
that the defendant’s negligence was not a factual cause of the harm
and that he therefore is not liable.25
As later sections will indicate, this kind of factual cause
question turns heavily upon estimates about what would have
happened if the defendant had behaved more carefully and upon
the legal tests or standards for judging causation. It is this
particular kind of factual cause problem that has led many serious
thinkers to penetrating and puzzling analyses.26
Type 4 causation problem: what harm was caused? A final
factual cause problem is to determine what harm was caused by
the defendant’s negligent conduct. In some instances it is
appropriate to apportion harm to causes, that is, to hold a
defendant liable
316
for a portion of the plaintiff’s harm but not all of it. That is most
obviously the case when one defendant breaks the plaintiff’s arm
and another defendant, acting independently, breaks the plaintiff’s
leg. Apportionment problems turn both on proof of facts—who
caused what?—and also on several kinds of legal policy.27
§ 14.3 Terminology and Structure: Factual Cause
and Scope of Liability (Proximate Cause)
Causation and scope of liability. Long but confusing legal
tradition has assigned the term “causation” to two entirely
different kinds of legal problems. The first issue is about causation
in the sense that term is used in everyday speech: Did the
defendant’s negligent conduct cause the plaintiff’s harm or not?
This is the factual cause inquiry. The second issue is about the
appropriate scope of the defendant’s legal liability for negligent
conduct that has in fact caused harm. This scope of liability issue
often turns on whether the kind of harm the plaintiff suffered was
the same kind the defendant risked by his negligence.
Proximate cause as a reference to both issues. Courts often lump
these two distinct issues together under the rubric of “proximate
cause.”28 However, even courts that call the two issues by the same
name recognize that the issues are quite different from each other
and turn on quite different kinds of analysis. Consequently, courts
that use a single term are quick to say that proximate cause
questions are composed of both factual cause and scope of liability
issues.29
Factual cause and proximate cause terminology. To avoid
confusion, the Third Restatement of Torts deliberately adopts two
distinct terms—“factual cause” and “scope of liability”—to more
accurately describe the separate issues addressed by these terms.30
This chapter also employs the terms factual cause and scope of
liability. However, given prior professional usage of varied terms,
at times quotations or summaries in the chapter refer to the
factual cause issue as an issue of “actual cause” or “cause in fact.”
Similarly, at times the scope of liability issue is referred to in case
quotations or summaries as an issue of “proximate cause” or “legal
cause.”
Factual cause and scope of liability principles. Because factual
cause and scope of liability represent different legal concerns and
are tested by adverting to different legal rules, it is highly
important to illustrate their difference, if only in a preliminary
way.31
An example of factual cause. Suppose the question is: did
Donnie break Margaret’s leg when he negligently ran into her, or
was her leg already broken? That is one form of a question about
the existence of causation; was Donnie’s conduct a factual cause of
the
317
harm? The existence of cause—the factual cause question—is

often tested by asking whether, but for the defendant’s conduct, the
injury would have been avoided.
An example of scope of liability (proximate cause). Now suppose
that the question turns on different facts: Dennis negligently left
tainted meat in his refrigerator. A thief took the meat and sold it to
Penny, who ate it and became ill. Should Dennis be liable for his
negligence? That is not a question about the existence of causation,
for Dennis’ conduct surely is one of the factual causes of Penny’s
harm. We can see that by asking whether Penny would have been
harmed if Dennis had properly disposed of the meat. Penny would
not have been, so Dennis’ conduct is one factual cause. The
question whether Dennis should escape liability, then, is about the
appropriate scope of Dennis’ liability, whether Dennis’ conduct is
important enough to justify imposing liability. Or you could say it
is about the legal significance of causation, rather than the
existence of causation. This kind of question is usually tested by
asking whether the general type of harm, or sometimes the
intervening force that brought it about, was foreseeable.
Factual cause as one element of the prima facie case. The chief
reason to mention the scope of liability or proximate cause issue in
a chapter on factual cause is that in judging factual cause issues, it
is important to understand that a finding of factual causation does
not determine liability. The plaintiff must not only prove
negligence, harm and factual causation but also must persuade the
judge and jury that liability is morally and practically justified
under scope of liability doctrines. Whenever this point is forgotten,
the tendency is to build moral and practical judgments into the
factual cause question. Those judgments are important, but the
law has separate places for them, namely, in the scope of liability
issue. The factual cause question is difficult enough without
importing difficulties from the scope of liability/proximate cause
analysis.
C. THE BUT-FOR TEST OF CAUSATION
The but-for test. In the great mass of cases, courts apply a but-
for test to determine whether the defendant’s conduct was a factual
cause of the plaintiff’s harm,32 although there are some important
exceptions.33 Under the but-for test, the defendant’s conduct is a
factual cause of the plaintiff’s harm if, but-for the defendant’s
conduct, that harm would not have occurred.34 The but-for test also
implies a negative. If the plaintiff would have suffered the same
harm had the defendant not acted negligently, the defendant’s
conduct is not a factual cause of the harm.35 The but-for test
requires the plaintiff to persuade the trier that different, non-
negligent conduct by the defendant would have avoided harm to
the plaintiff. For convenience, all the rule statements and
illustrations in this chapter address only the defendant’s conduct
as a factual cause. However, the causal rules are generally the
same for fault of the plaintiff.
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Meeting the but-for test. In most cases, causation seems obvious

and presents no obstacle to the plaintiff. The defendant negligently
crashes his airplane into the plaintiff’s apartment. The defendant’s
conduct is a but-for cause of the harm done to the apartment; but-
for his negligent piloting, the apartment would have remained
standing. Many cases provide a similarly straightforward
application of the but-for test.36
Failing the but-for test. In a number of cases, however, the but-
for test of factual cause puts the plaintiff out of court, even though
the defendant is clearly negligent. For example, suppose a sailor
fell overboard and sank like a stone. The ship carried a defective
lifeboat and the rescue attempt was futile. But even a good lifeboat
would have been of no assistance because the sailor was lost
immediately.37 The defective lifeboat was not a but-for cause of the
plaintiff’s harm. Although it would be possible for courts to look at
these cases in other ways,38 many such cases are resolved on
factual cause/but-for grounds, which may be the most
straightforward analysis.39
Multiple causes under the but-for rule. It is by no means true
that the but-for test reduces everything to a single cause.40 As
courts make clear, “It is not necessary that the defendants’ act be
the sole cause of the plaintiff’s injury, only that it be a cause.”41 In
fact, there are always many causes that meet the but-for test, some
represented by negligent conduct, some not. A negligently fells a
tree; to get around it, B walks out into the street; C, driving a car,
hits his brake to avoid running into B; D, a passenger, is thrown
into the windshield. As a pure matter of factual cause the conduct
of A, B, and C are all factual causes of D’s harm. Without A’s
conduct, none of this would have occurred and the same can be said
of the conduct of the others. If A or C escape liability, it will not be
on the ground that they are not factual causes.42 The but-for test
shows that they are all factual causes, and if liability is avoided, it
will be on an entirely different ground. However, a special problem
arises with a subset of multiple cause cases discussed later.
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§ 14.5 But-For Analysis and the Hypothetical

Alternative Case
Comparison with a hypothetical alternative. The but-for test of
causation can be applied only by comparing what actually
happened with a hypothetical alternative. What would have
happened if the defendant had not been negligent? Would the
plaintiff have been injured in the same way in that case? If so, then
the defendant’s negligent conduct is not a factual cause of the
harm.
Difficulty with the approach. One difficulty with the but-for test
is that it requires the judge to imagine an alternative set of events
that never occurred.43 Consequently, any comparison of the
hypothetical to the events that actually occurred is only a
construction of the intellect and often a speculative one at that, not
a fact at all. It is nonetheless a construction required by the rule.
The relevant counterfactual. The relevant counterfactual is what
would have happened had the defendant not acted negligently. The
counterfactual is not whether defendant’s conduct could have been
non-negligent under different circumstances. In Cabral v. Ralphs
Grocery Co.,44 the driver of a car died in a rear-end collision with a
parked tractor-trailer driven by Horn, an employee of the
defendant. The decedent’s wife sued for negligence, and a jury
found for the plaintiff, albeit with a reduction for decedant’s
comparative negligence. On appeal, the defendant claimed that
Horn’s negligent act in parking the rig on the side of the road could
not be a factual cause of harm, “because the same collision would
have occurred had Horn stopped for emergency rather than
personal reasons.” The court disagreed with this reasoning: “The
negligent conduct plaintiff claimed caused her husband’s death
was Horn’s stopping his tractor-trailer rig at the site. The
counterfactual question relevant to but-for causation, therefore, is
what would have happened if Horn had not stopped his tractor-
trailer rig there, not what would have happened if Horn had had a
better reason to stop…. [S]topping by the side of a freeway for an
emergency might be just as dangerous to other motorists as
stopping for a snack, but an emergency stop will not create liability
because it is justified. While potential liability differs in the two
situations (emergency and non-emergency), causation does not.”45
Answering the hypothetical question: the Salinetro case. In
Salinetro v. Nystrom,46 the plaintiff, who had been in an
automobile accident, presented herself to the doctor for x-rays of
her lower back and abdomen. According to the plaintiff, the doctor
negligently failed to ask whether she was pregnant. Later, learning
that x-rays might have injured her fetus, she terminated her
pregnancy and brought suit for negligence. The factual cause
problem arose because at the time the x-rays were taken, the
plaintiff did not know she was pregnant. So the court thought it
knew what the hypothetical alternative scenario would have been.
It thought that the doctor would have asked the plaintiff “Are you
pregnant?” and she would have said “No.” That meant the x-rays
would have been taken anyway, with the same result. So in the
court’s view, the doctor’s negligent failure to ask was not a but-for
cause of the harm.
Other possible views of the negligent act. If the court was right
in its vision of the hypothetical alternative, then the Salinetro
decision is right. But its imagined
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alternative is not the only plausible one for two kinds of

reasons. First, the doctor could have avoided negligent conduct in
quite a number of ways. For instance, he might have posted signs
or handed patients an explanatory pamphlet, or insisted on a
pregnancy test, or an accurate record of menstrual periods. Some of
those alternative methods of avoiding negligence would probably
have led the patient to avoid the x-rays and the loss of her child.
Other possible answers to the doctor’s question. Second, even if
the doctor had merely asked “Are you pregnant,” the plaintiff
herself might not have responded as the court imagined she would,
by saying she was not.47 She might have said instead “does it
matter?”—which in turn might have led her to get full information
and to have a pregnancy test before having the x-rays. It is not
hard to imagine a patient who is ignorant of the dangers of x-rays
or too trusting of doctors, but who would be alert to avoid harm to
her fetus if only she is asked the pregnancy question. The truth is
that no one knows what would have happened in the imagined
world without the defendant’s negligence.
Concerns about speculation. The Salinetro case is only one of
many cases in which the factual cause determination must be
made on the basis of speculation about whether the injury really
could have been avoided if the defendant had not been negligent.48
This speculation and other difficulties with the but-for test have
led many writers to struggle for greater clarity,49 to say that the
test only works well when causation is so clear that no test is
needed anyway, to urge abolition of the test altogether,50 or to
work from models or paradigms rather than from rules.51 Still, the
test is widely used in the United States and abroad.52 But while
the test is well accepted by courts, they have often found ways to
alleviate the plaintiff’s difficulty with the but-for rule in special
cases and lawyers have some strategies available to adapt the but-
for rule by changing their view of the negligence or the harm it
caused.
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D. PROBLEMS WITH AND ALTERNATIVES TO

THE BUT-FOR TEST
§ 14.6 Alternate Tests When But-For Analysis
Fails: The Substantial Factor Test and Tests
Aggregating Conduct
The Need for an Alternate Test in Some Cases
The but-for test and its use with multiple tortfeasors. Any given
event, including an injury, is always the result of many causes.53
Most causes can be ignored in tort litigation, but quite frequently,
courts must focus on two or more causes of an injury. This is not
necessarily a problem for the but-for test. The but-for test often
permits a finding that the negligent acts of any number of
tortfeasors, as well as those of the plaintiff, are all factual causes.
When this is the case, ordinary causal rules can be applied and
policy issues concerning the appropriate scope and extent of
liability can be handled under scope of liability doctrines or
through apportionment. This is particularly true in the context of
multiple causes which are each necessary but not sufficient to
produce a given injury.
Where but-for demonstrates multiple actors are factual causes.
Example: A creates risk of harm from B’s negligence. For example,
suppose that an apartment house manager, A, negligently leaves
the plaintiff’s door unlocked after checking the apartment. The
security guard, B, who is required to check all doors, negligently
omits to check this one. The result is that a thief walks in the
unlocked door and steals the plaintiff’s stereo and jewelry. But-for
A’s negligence in leaving the door unlocked, the plaintiff would
have had no loss. But for B’s negligence in failing to check, the
plaintiff would have had no loss. Both A and B are but-for causes of
the loss (as long as the burglar took advantage of the unlocked door
and would not have bashed a locked door in).
Failure of the test: where but-for demonstrates that multiple
actors, who together caused the harm, are not factual causes.
However, there is a subset of multiple cause cases that pose a
problem for the but-for test. When each of two or more causes
would be sufficient, standing alone, to cause the plaintiff’s harm, a
literal and simple version of the but-for test holds that neither of
the defendants’ acts is a cause of the harm. The classic example is
the case of two fires being swept by winds towards the plaintiff’s
property. Either fire is sufficient to burn the property. Before
either fire reaches the property, they combine. The combined fire
burns the plaintiff’s property. If A negligently set one fire and B
negligently set the other, each could claim that he is not a factual
cause of the harm under the but-for rule, since, even if he had set
no fire, the other fire would have burned the property. Since both A
and B could make the same argument, a court that applied the
unvarnished but-for test here would effectively bar the victim from
any recovery from either of the two negligent defendants whose
combined action caused the harm. Another famous case in this
pattern is Landers v. East Texas Salt Water Disposal Company, in
which two defendants negligently caused thousands of barrels of
salt water to pour into plaintiff’s small lake, killing plaintiff’s
fish.54
Modification. The but-for test in such cases leads to a result
that is almost always condemned as violating both an intuitive
sense of causation and good legal policy. For
322
cases like the two fire cases and the Landers case, cases with
two independent causes each sufficient in and of itself to cause the
injury, courts have modified the test.55
The Substantial Factor Test
Substituting the substantial factor test. When each of two or
more causes is sufficient standing alone to cause the plaintiff’s
harm, courts usually drop the but-for test. The Restatement of
Liability for Physical and Emotional Harm merely prescribes the
outcome: when each of two or more causes is sufficient to cause the
plaintiff’s harm—both are factual causes of the plaintiff’s harm.56
However, many courts have used the substantial factor test
endorsed by earlier Restatements.57 That test says that all
defendants who are substantial factors in the harm are factual
causes.58
Substantial factor: applied to duplicative causation59 cases. In
the example of the two fires that combine to burn the plaintiff’s
property, the substantial factor test allows courts to avoid but-for
analysis and to hold that the two tortfeasors who set the two
different fires are both causes of the plaintiff’s harm, provided only
that each fire was sufficient standing alone to cause the same
harm.60 If one fire was set by a tortfeasor and the other by
lightning, the trier of fact can still find that the tortfeasor is a
factual cause and liable for the damage done.61 The substantial
factor approach may also resolve some problems of multiple
polluters.62 When no one polluter independently releases enough
hazardous material into the environment to cause harm, but the
entire group of polluters, each acting independently, collectively
release an amount sufficient to cause harm, courts may treat each
as causal. The substantial factor approach is but one of four
grounds on which to reach such a holding.63
Justified uses of substantial factor. The courts have reached the
right result in cases like the two-fires example, where each cause
would be sufficient by itself to cause the harm. In fact, in one view,
such cases represent the single most justified use for the
323
substantial factor test.64 If either fire alone was sufficient to

burn the plaintiff’s property, and if the defendant (or all
defendants) were negligent, justice and policy both point to the
liability of each tortfeasor. The defendant was negligent; he created
a risk of burning the plaintiff’s property; the property was in fact
burned; and the harm was neither worse than nor different from
the harm that would have been suffered if no other fire had been
set. It would be a windfall to the negligent defendants if they were
to escape liability for the harm merely because another tortfeasor’s
negligence was also sufficient to cause the same harm. It is also
possible to construct a neutral, non-policy definition of causation to
achieve the same result, the bottom line of which is that
duplicative causes are still causes.65
Limits of substantial factor; preemptive causation66 cases. The
substantial factor test does not suggest unlimited liability. If one of
the two fires burns the plaintiff’s property to the ground before the
other spreads to the scene, the second fire is not a factual cause at
all,67 even though it would have burned the plaintiff’s property in
the same way. Your acts today cannot in any practical sense cause
something that happened in 1939, or even something that
happened one second before you acted. Moreover, to say that a
defendant may have liability when determined to be a factual
cause of the harm, is not to determine the extent of the liability.68
Limits of substantial factor; its intuitive nature. The substantial
factor test is not so much a test as an incantation. It points neither
to any reasoning nor to any facts that will assist courts or lawyers
in resolving the question of causation. Put differently, the
substantial factor test requires no particular mental operation.69 It
invites the jury’s intuition.70 In one view, that represents a loss of
precision in analysis with no corresponding gain.71
324
Aggregating the Conduct of Multiple Actors

The Restatement’s approach. The Restatement of Liability for
Physical and Emotional Harm drops the terminology of substantial
factor in its blackletter rule. When each of two or more causes is
sufficient to cause the plaintiff’s harm—the Restatement
prescribes that both are factual causes of the plaintiff’s harm.72 In
cases that fall short of that criteria, when an actor’s tortious
conduct is not sufficient to cause the plaintiff’s harm, but causes
the harm when combined with the tortious conduct from other
persons, the Restatement uses the language of multiple sufficient
causal sets to aggregate the conduct of multiple actors.73 Under the
Restatement, the conduct of all defendants as a group, once
aggregated, is considered as a whole. The but-for test is then
applied to their conduct taken as a unit or set. If the combined
conduct is a but-for cause of the plaintiff’s harm, then cause is
established. The combined fires, for instance, taken as a whole,
undoubtedly burned the plaintiff’s property. The Iowa Court has
expressly adopted this test for judging causality.74
Criteria for choosing units. This approach, which groups
defendants or their conduct together into a set of relevant conduct,
is more satisfying than the amorphous substantial factor test, but
it depends on a decision to group various acts of various defendants
together, and on a decision about what acts should be treated in
this collective manner. At least to some extent, the decision to
aggregate conduct of different defendants, and the decision to
include or exclude specific acts in that aggregate unit, is likely to
be a policy decision, or merely an intuitive selection.
The NESS Test. Professor Wright, working from suggestions of
earlier legal thinkers, has formulated a detailed definition of
causation that also works with the idea that conduct or events can
be grouped together into a set.75 But Wright rejects the aggregate
but-for test. He proposes to say that if the entire set of events is
sufficient to cause the harm and the defendant’s act is a necessary
element of the sufficient set, then causation is established.76 He
attempts to define the appropriate set or cluster without resorting
to policy or intuitive decisions, by limiting the cluster to causally
relevant factors.77
E. PROVING CAUSATION
Changing the negligence in the but-for test. The but-for test
links the defendant’s negligent conduct with the plaintiff’s harm.
Plaintiffs who encounter difficulties in proving causation may find
that problems surmounting the but-for test may be avoided by
asserting that some different conduct of the defendant was
negligent, or that some
325
different harm was caused by the negligent conduct. In

addition, some negligence rules like res ipsa loquitur can make not
just negligence but also causation easier to prove.
Specific negligence as a key part of the test. The specific act of
negligence claimed by the plaintiff largely determines the
hypothetical alternative conduct to be compared. If the plaintiff
alleges that the defendant failed to keep a proper lookout, the
hypothetical alternative case to be considered is one in which the
defendant does keep a proper lookout and the question becomes
whether, had he done so, he would have avoided injuring the
plaintiff. On the other hand, if the plaintiff’s claim is that the
defendant drove too fast, the alternative case to be considered in
testing causation is not one in which the defendant keeps a better
lookout but one in which he drives more slowly. Because the
specific negligence claimed points to the alternative conduct to be
considered in assessing causation, the plaintiff’s case on the
negligence issue directly affects her case on the causal issue. For
this reason the plaintiff’s lawyer may spend a great deal of effort in
structuring the negligence claim in order to get a favorable
outcome on the causal issue.
Switching the specific act claimed to be negligent. Suppose the
plaintiff is injured when a tree on the defendant’s land falls during
a windstorm. The plaintiff can show that the defendant knew the
tree was dangerously likely to fall and that he was negligent in
failing to brace the tree. However, the windstorm was so severe
that it might have blown down the tree even if it had been braced.
On such evidence, the plaintiff’s case is in jeopardy; she may be
unable to show causation under the but-for rule. By relying on a
different claim of negligence, the plaintiff’s lawyer can sometimes
point to an alternative safer scenario that will meet the but-for
rule. Instead of asserting that the defendant should have braced
the tree, the plaintiff’s lawyer can assert that the defendant should
have exercised reasonable care by cutting it down. If the tree had
been cut down, it surely would not have blown over on the plaintiff.
The failure to cut the tree is thus a factual cause of the plaintiff’s
harm.
Lawyering strategy. This example points to an important
connection between the claim of negligence and the causal issue.
Except in res ipsa loquitur cases, the legal system demands proof
of very specific acts of negligence, partly because the hypothetical
alternative demanded by the but-for test can only be applied to
specific acts. The plaintiff’s strategy can take advantage of this
point by asserting negligence that points to favorable hypothetical
alternative scenarios. That is not always easy to do. In the tree
case, the plaintiff is more likely to be successful on the causal issue
if she claims a negligent failure to cut, but she might find it easier
to prevail on the negligence issue by claiming only a failure to
brace. Nevertheless, some causal problems for the plaintiff can be
solved by claiming the right act of negligence.
Changing the harm. Because factual cause connects the
defendant’s negligence with the plaintiff’s harm, another lawyering
strategy to overcome but-for cause problems is to change the
nature of the harm alleged. This strategy is seen most prominently
in lost chance of recovery cases in which the actual harm alleged
becomes not cancer or death, but the lost chance of recovering from
cancer or avoiding death. Res ipsa loquitur may also aid the
plaintiff on some causation issues.78
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§ 14.8 Evidence and Inferences of But-For

Causation
Judgments from experience. Courts have often recognized,
implicitly or explicitly, that the jury must be permitted to make
causal judgments from its ordinary experience without demanding
impossible proof about what would have occurred if the defendant
had behaved more safely.79 Even scientific or medical causation
might be proven by circumstantial evidence leading to an inference
of causation.80
Inferring factual cause. In particular, if the defendant’s conduct
is deemed negligent for the very reason that it creates a core risk of
the kind of harm suffered by the plaintiff, then it is often plausible
to infer factual causation.81 When we say that the pharmacist is
negligent in doubling the dosage of a prescription we are saying
that it is too likely that the patient will suffer serious injuries from
the drug, and if she does suffer the kind of injury the drug is
capable of producing, the trier can infer causation.82 If we say that
the defendant is negligent because his stairs were poorly lighted
we are saying that it is all too likely that someone will fall because
of the poor lighting. When someone does in fact fall on the poorly
lit stairs it is quite reasonable to infer that bad lighting had
something to do with it.83 Where a plaintiff emerges from a sudden
rear-end automobile accident with a hurt neck, it is permissible for
the jury to infer that the injury was caused by defendant’s
negligent driving where there was no evidence of a pre-existing
neck injury.84
Uncertain causation. Courts are avowedly liberal with such
causation issues85 and many cases have permitted an inference of
factual causation along these lines. If the defendant is negligent in
failing to provide a fire escape in an apartment building,86 a
327
lifeguard at a hotel swimming pool,87 or a warning about

dangers of a product,88 the risks are all too great that someone will
die in a fire, drown, or suffer product injury, so juries may be
permitted in such cases to infer that the defendant’s negligent
conduct was a factual cause of the harms suffered in each case,
even though it is perfectly possible that the precautions required
would have availed nothing in the particular case.89
Inconsistencies. Assessment of causal evidence requires an
estimate of probabilities; for that reason, slight differences in the
facts might warrant a finding of causation in some cases and not in
other very similar cases. But it is hard to escape the feeling that
the but-for rule with its hypothetical alternative case can produce
contradictory results90 because it is applied with a light touch in
some cases and quite rigorously in others.91
F. PROVING WHICH DEFENDANT’S
NEGLIGENCE CAUSED HARM
§ 14.9 Alternative Causes and the Shifted Burden
of Proof
Alternative causation rule. In the alternative cause cases, both
tortfeasors are negligent, but only one of them has caused the
plaintiff’s harm. The difficulty is that it is impossible to determine
which one is the cause. The doctrine of alternative causation was
originally rooted in joint and several liability, but has been adopted
even in jurisdictions that have adopted several liability.92 Indeed,
the argument for allowing the alternative causation rule may be
stronger when the effect of the rule is not to assign full liability to
the negligent defendant but instead to allow the negligent
defendant who
328
potentially has a causal role to be counted as one defendant in

the broader apportionment.
Summers v. Tice. The leading case in the United States is
Summers v. Tice,93 where two hunters, acting independently of
each other, negligently fired their guns at the same time. One piece
of shot struck the plaintiff in the eye. Both hunters were negligent
in risking harm to the plaintiff. But only one of them could have
fired the shot that struck the plaintiff’s eye.94 As a matter of
probabilities, it is not more likely that A fired the shot, nor more
likely that B did so, so the plaintiff would be left without recourse
against either negligent hunter. The court concluded that the
burden should shift to each defendant to show he was not the cause
and if he could not make such a showing, then to stand jointly and
severally liable to the plaintiff.
Burden shifting and practical effect. Sometimes the burden
shifting in Summers v. Tice is given prominence in discussions, as
if to suggest that the court was not really imposing liability.
However, when a jurisdiction has a rule of joint and several
liability for indivisible injuries, the practical effect of the rule is to
impose joint and several liability upon each defendant when one
defendant cannot show that the other defendant was the cause.
Consequently, one actor will be held liable although he caused no
harm whatsoever. The common term “alternative liability” is
misleading. It is causation that is in the alternative, because one or
the other, but not both, tortfeasors are causes of the harm.
Rationale. The opinion in Summers did not spell out the reasons
for this extraordinary liability in any precise way, perhaps because
the result, which has sometimes been reached on other grounds,95
seems so clearly right on the facts. Beyond the dubious suggestion
that defendants might know more than plaintiffs,96 the court
seemed to say that each defendant, by his negligent shot, created
the doubt about causation or despoiled the evidence that otherwise
would have been available to the plaintiff, so that as a matter of
policy, the defendants, rather than the innocent plaintiff, should
bear the loss.97 This rationale has been elaborated by the
Canadian Supreme Court.98 Professor Robertson has given a good
account of it in connection with another
329
case.99 Another possibility is that Summers is merely an

instance of the more general proposition when the defendant
creates an unreasonable risk of a specific kind of harm and that
kind of harm in fact occurs, it is often possible to conclude that the
defendant’s negligence is causal.100 The issue has been
thoughtfully addressed from a philosophical perspective.101
Requirement that all defendants be acting wrongfully for
alternative liability. The Restatement accepts Summers. It would
shift the burden to the defendants to exculpate themselves when
the conduct of two or more actors is tortious and harm has been
caused by one of them.102 Under this rule, the actors must all be
wrongdoers before the burden shifts to them to disprove
causation.103 In this respect, the Summers alternative causation
rule differs from the concert of action rule that sometimes applies
to similar facts.104
Courts have accepted the rule,105 but have usually been
reluctant to extend the alternative causation rule any further.106
330
§ 14.10 Statistical Substitutes for Causation:
Market Share Liability
History. Market share liability has a specific beginning. It was
proposed in a law review comment to deal with DES cases.107 DES
was a prescription drug manufactured by hundreds of companies.
Every manufacturer’s version was like every other manufacturer’s
version. Many pregnant women ingested the drug to help prevent
miscarriages. Years later, when their daughters reached
adulthood, they discovered that DES caused cancers in the
daughters’ female reproductive system. Since these cancers did not
appear for many years, almost no one had records that could
establish which of the manufacturers had produced the specific
drug ingested by the individual mothers. Indeed, many of the
manufacturers no longer existed.
The market share idea. The market share idea was that if
manufacturer A sold 40% of all the DES marketed, it was highly
probable that A’s DES caused about the same percentage of overall
injuries. Although A’s version of the drug may have caused no
injury at all to a particular plaintiff—no one could ever know for
sure—if it caused 40% of all injuries, then holding it liable for 40%
of each individual plaintiff’s injury would be no injustice. In fact,
the totals of liability should come out to about the same dollar
amount as if each mother were accurately matched with each dose
of DES.
DES. Several courts have adopted some form or another of the
market share idea in DES cases.108 These courts hold that each
manufacturer of the drug is responsible to each plaintiff, but never
for the plaintiff’s entire damages,109 only for a percentage of the
plaintiff’s damages equal to that manufacturer’s share of the
market in the drug. Quite a few other courts, worried over the idea
of liability based upon statistical rather than literal causation,
have rejected the market share theory, even for the DES cases.110
Continuing development. When it comes to products other than
DES, courts have mixed views.111 Given the split among courts
about the propriety of market share liability, the Restatement of
Products112 and the Restatement of Liability for Physical Injury113
have left the issue of whether such a rule should be adopted and in
what circumstances “to developing law.” In the states that have
affirmatively permitted some
331
form of market share liability, a number of collateral rules

about joinder and definition of the appropriate market have
become important.114
G. SPECIAL PROBLEMS: WHAT HARM WAS
CAUSED?
What is the harm caused? When harm is caused by multiple
negligent actors, or even multiple negligent factors, a common
question is what harm did the actor’s negligence cause? One
approach, when negligence causes distinct or divisible injuries, as
when Defendant A breaks the plaintiff’s arm and Defendant B
breaks the plaintiff’s leg, is to turn to causal apportionment.115
Preexisting harm. Difficult problems of causation and
apportionment arise when the defendant is negligent toward a
plaintiff who is already suffering from a disease or disability or is
immediately threatened with probable harm.116 As in many other
cases that permit or require apportionment, concerns of justice or
policy may shape the apportionment rules.117
The lost chance problem. In some cases the defendant risks
harm to a person suffering from a preexisting danger or disability,
but it is not likely, much less certain, that the defendant actually
caused the harm that resulted. Instead, the harm is more likely to
have resulted from the preexisting condition.
Example: physician’s untimely treatment or diagnosis. One kind
of case that has been much litigated is that of a physician who fails
to provide a timely diagnosis or treatment of disease, thereby
creating a risk that the treatment will come too late. In such cases,
the evidence may show that even if diagnosis and treatment had
been timely, the patient might have had only a 40% chance of
living. On those facts, the plaintiff definitely could not prove by a
preponderance of the evidence that the defendant caused the
patient’s death. Indeed, the heavy preponderance of the evidence is
the other way, for the probability is 60% that the defendant did not
cause the death in spite of his negligence. In these cases, plaintiffs
sometimes seek to redefine the harm caused as, not the death
itself, but plaintiff’s lost chance of recovery.
Denial of all liability. Some courts have insisted that on facts
like the delayed treatment example no one can recover for the
patient’s death, since the plaintiff has failed to establish causation
by a preponderance of the evidence.118 Courts have also
332
raised policy issues, particularly related to the potential

financial burden of expanded liability, as a reason to deny lost-
chance liability.119 Some legislation calls for denial of liability in
lost chance cases at least where the context is medical
malpractice.120
Recognizing lost chance of recovery. Although a significant
number of states have specifically rejected the lost chance
approach, an even larger number has embraced it. A recent article
places the count at 16 states against the doctrine and 22 in
favor.121 Most of the courts that have permitted the specific claim
that loss of a chance is itself an item of damages for which recovery
is appropriate, have permitted recovery in one of two ways.
Liability for all harm or relaxed requirement of causation. When
the plaintiff shows loss of a chance, but a chance of only 50% or
less, one group of courts permits the jury to find causation and
make an award for the whole of the loss, disregarding the fact that
the patient was likely to die even if the physician had not been
negligent.122 Not all the cases that permit a full recovery are
explicit about the reasoning. The clearest of them reason somewhat
along these lines, with which other cases are consistent: (i) The
defendant doctor’s negligence increased the risk of death; (ii) that
increased risk combined with the risk from the existing illness to
cause a single indivisible injury, much as the negligently set fire
combined with the innocent fire in the two-fire cases. (iii)
Consequently, if the doctor’s negligence was a substantial factor in
producing harm, the doctor is liable for the entire harm unless he
can show a basis for apportionment.123
Liability for value of the lost chance. A second method of
permitting recovery recognizes that the defendant may not have
caused death, but did cause the loss of the plaintiff’s chance to live.
The same idea can apply to a living plaintiff who suffers a
reduction in life expectancy124 or the loss of a chance for a better
medical outcome.125 This view was developed by Professor King in
an article that is now usually cited in discussions of the topic.126
The idea is that the plaintiff’s chance of survival itself has value for
which compensation is due.127 Confronted with a risk of death, a
patient would pay for even a small chance to live.128 Indeed, a
patient retains a physician for that very
333
reason, to maximize his chances of health and survival or a

better outcome. In this view, if the plaintiff can sustain the burden
of proving that the defendant negligently deprived her of a
chance129 of a better outcome, the defendant should be liable for
the value of the chance he has negligently destroyed.130 This
approach is backed, in degrees that vary from case to case, by
considerations of fairness, deterrence, and protection of the
plaintiff’s autonomy interests,131 but artificial limits on lost chance
recoveries are possible.132
Amount of recovery. The damages awarded are quite different
from the traditional all-or-nothing recovery.133 Under the value of
the chance rule, the plaintiff recovers, but only an amount
representing the value of the chance destroyed by the defendant’s
negligence. The Massachusetts Supreme Judicial Court recently
detailed the specific computations required of its courts.134 Other
courts have discussed calculations,135 which can be done in
different ways.136 One commentator has specifically addressed
334
computational difficulties.137 A more subjective approach, taken

by one state, might avoid some of these issues, though raise
others.138 Another possibility is suggested by a Michigan case: the
plaintiff might recover for present physical injury and emotional
harms resulting from the diminished chance, but not for loss of the
chance itself.139
Increased risk of future harm. In many of the lost chance of
recovery cases, the defendant negligently risks harm to the patient
and that very harm in fact comes about. Those cases are not
necessarily good precedent for liability when the defendant creates
a risk of future harm that has not yet in fact occurred and that
may never do so.140 Courts have often denied claims for
proportional recovery based on an increased risk of future harm
that is not more probable than not to occur141 and that is entirely
separable from the harm that has already occurred.142 Some courts
have recognized an exception by allowing the plaintiff who is
subjected to a risk of future harm like cancer to recover
immediately for costs of medical monitoring.143 And if the
defendant has inflicted some harm, which in turn may shorten the
plaintiff’s life, some authority permits the plaintiff to recover for
the diminished chance of living out her life expectancy.144 Illinois
has now gone beyond these exceptions, allowing a recovery against
the patient’s physician for negligently increasing the risk that she
will have future harm, with damages proportioned to the
probability that such harm will occur.145
Further issues. When recovery should be allowed in increased
risk and lost chance cases, when full versus partial recoveries
should be awarded, whether the doctrines
335
should apply beyond the doctor-patient context in which they

began, and how to resolve evidentiary disputes are important
issues not fully addressed here.146
________________________________
1 E.g., Right v. Breen, 277 Conn. 364, 890 A.2d 1287 (2006); Ponder
v. Angel Animal Hosp., Inc., 762 S.W.2d 846 (Mo. Ct. App. 1988) (negligent
castration of dog not actionable because castration did not affect dog’s
market value and actual damages are required to sustain negligence
action).
Harm) § 4 (2010).
3 Id.
4 Id. § 4 cmt. b.
5 For bodily changes without pain or other obvious detriment courts
appear to have different approaches. Searfoss v. Johnson & Johnson Co.,
2004 WL 792789 (Pa. Super. Ct. 2004) (denying recovery where the
defendant’s drug caused plaintiffs’ hearts to have a longer QT or “reset
time” for the next heartbeat, but caused neither pain nor symptoms nor
permanent harm). But cf. Dailey v. Methodist Med. Ctr., 790 So.2d 903
(Miss. Ct. App. 2001) (the defendant administered a labor inducing drug to
a male cancer patient, perhaps with resulting change in blood pressure or
heart rate; the court may have rejected the argument that these changes
did not constitute injury).
6 America v. Sunspray Condo. Ass’n, 61 A.3d 1249 (Me. 2013)
(failure to enforce smoking ban; plaintiff failed to allege a legally
cognizable injury); Schuman v. Greenbelt Homes, Inc., 69 A.3d 512 (Md.
Ct. Spec. App. 2013) (plaintiff failed to establish that secondhand smoke
coming from neighbor’s patio caused him any harm).
7 Exposure that causes detrimental bodily changes has been
allowed to serve as the basis for a number of emotional distress claims.
See Plummer v. United States, 580 F.2d 72 (3d Cir. 1978) (prisoner was
infected with tuberculosis but not suffering from it; since tubercle bacilli
were actually in his body the court found sufficient impact to permit an
emotional distress claim based on the fear that it would be activated in the
future); Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir. 1986)
(pleural thickening from asbestos exposure that had caused no damage
plus anxiety over his fear of developing cancer; pleural thickening would
count as an impact that would permit recovery of emotional distress
damages based on fear of cancer); but see, Simmons v. Pacor, Inc., 543 Pa.
664, 674 A.2d 232 (1996) (pleural thickening was not “injury” that
supports an emotional distress claim). See also James A. Henderson &
Aaron D. Twerski, Asbestos Litigation Gone Mad: Exposure-Based
Recovery of Increased Risk, Mental Distress, and Medical Monitoring, 53
S.C. L. Rev. 815 (2002). The claim of physical impact grounding an
emotional distress claim is weaker when the claim is merely one of
exposure to a harmful substance without bodily change. Metro-North
Commuter R.R. Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d
560 (1997) (mere exposure to asbestos was not harm in itself that would
support an emotional distress claim).
Harm) § 26 (2010). For a discussion of the Restatement Reporters’
rationale for the causation requirements, see Michael D. Green, Flying
Trampolines and Falling Bookcases: Understanding the Restatement of
Torts, 37 Wm. Mitchell L. Rev. 1011 (2011).
9 Most discussions appear to test cause in fact by asking whether
the negligent portion of the conduct was a cause of the harm. See
26 cmt. g (2010) (noting that there may be a dispute “about whether the
tortious aspect of the actor’s conduct was a cause of the harm”) (emphasis
supplied).
10 E.g., Ortega v. K-Mart Corp., 26 Cal.4th 1200, 1205, 36 P.3d 11,
15, 114 Cal.Rptr.2d 470, 475 (2001); Lough v. BNSF Ry. Co., 988 N.E.2d
1090 (Ill. App. Ct. 2013) (affirming summary judgment for defendant
where plaintiff failed to produce evidence that an automobile accident
caused or aggravated medical conditions that caused the driver’s death 22
months later). See Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 28 cmt. a (2010) (“preponderance” or greater weight of
evidence).
11 See Kramer Serv., Inc. v. Wilkins, 184 Miss. 483, 186 So. 625
(1939).
12 See, e.g., Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349 (6th
Cir. 1992).
13 In re Hanford Nuclear Reservation Litig., 292 F.3d 1124 (9th Cir.
2002), discusses a number of cases using the term.
14 See Green v. Alpharma, 284 S.W.3d 29 (Ark. 2008) (genuine issue
of material fact whether exposure to arsenic-laced chicken litter from
poultry producer caused child to contract leukemia); Merck & Co., Inc. v.
Garza, 347 S.W.3d 256, Prod. Liab. Rep. (CCH) P 18692 (Tex. 2011) (in
products liability suit alleging harm from prescription drug Vioxx, “when
parties attempt to prove general causation using epidemiological evidence,
a threshold requirement of reliability is that the evidence demonstrate a
statistically significant doubling of the risk”; the plaintiff must also show
that he or she is similar to the subjects in the studies, and that other
plausible causes are excluded with reasonable certainty).
15 Ranes v. Adams Lab., Inc., 778 N.W.2d 677 (Iowa 2010)
(prescription drug consumer failed to establish that the drug
Phenylpropanolamine caused vasculitis, or that plaintiff suffered from
vasculitis).
16 See Perkins v. Entergy Corp., 782 So.2d 606 (La. 2001) (electrical
shutdown for which defendants were responsible could have loosened
particles in oxygen piping system, leading to explosion and injury, but no
evidence showed that particles were in fact loosened by the shutdown). In
some cases, however, it may be possible to infer the existence of the
necessary fact or condition (such as loosened particles in Perkins) by
proving that other potential causes were improbable.
17 See Choi v. Anvil, 32 P.3d 1 (Alaska 2001) (no expert testimony
required where injury is within common experience or knowledge of jurors
—pains following auto collision); Ross v. Housing Auth. of Baltimore City,
63 A.3d 1 (Md. Ct. Spec. App. 2013) (childhood exposure to lead paint);
Berten v. Pierce, 818 S.W.2d 685 (Mo. Ct. App. 1991) (back pain following
auto-pig collision); State Farm Mut. Auto. Ins. Co. v. Lucas, 2001 WL
802195 (Ohio Ct. App. 2001) (neck pain immediately following accident);
Alder v. Bayer Corp., AGFA Div., 61 P.3d 1068 (Utah 2002) (where
exposure to substance risks the injury plaintiff suffered, close temporal
connection between exposure and symptoms can be compelling).
18 Dyer v. Maine Drilling & Blasting, Inc., 984 A.2d 210 (Me. 2009)
(“A fact-finder could infer that these significant changes [to the home’s
condition], observed over a short period of time in a home over seventy-
years-old, were not likely to have been caused by normal settling.”).
19 Cowart v. Widener, 697 S.E.2d 779 (Ga. 2010). Where causation
depends upon medical or technical matters outside the usual knowledge of
the trier, and where it is required but not produced, the court may hold
that causal proof fails as a matter of law. See Randall v. Benton, 802 A.2d
1211 (N.H. 2002) (evidence insufficient to show that, had psychiatrist
complied with standard of care, decedent’s suicide would have been
prevented). The difficulties of producing acceptable evidence in complex,
toxic tort cases, can be substantial. Consequently, it has been suggested
that as a matter of policy some relief from the burden would be
appropriate in special cases. See Margaret A. Berger, Eliminating General
Causation: Notes Towards a New Theory of Justice and Toxic Torts, 97
Colum. L. Rev. 2117 (1997). On the proof required in such cases, see
28 cmt. c (2010).
20 Harrison v. Binnion, 214 P.3d 631 (Idaho 2009).
21 Turner v. Davis, 699 N.E.2d 1217 (Ind. Ct. App. 1998) (after auto
accident, plaintiff would often fall asleep and was fired from her job for
this reason; close temporal connection of impact and symptoms
insufficient); Clarke v. Martucci, 289 A.D.2d 816, 734 N.Y.S.2d 364 (2001)
(symptoms delayed); Darnell v. Eastman, 23 Ohio St.2d 13, 261 N.E.2d
114 (1970) (symptoms delayed).
22 See, e.g., Coombs v. Curnow, 219 P.3d 453 (Idaho 2010) (doctor’s
expert testimony about cause of child’s death from long-term high-dose of
sedation was sufficiently reliable to sustain the jury’s verdict in medical
malpractice action); Ranes v. Adams Lab., Inc., 778 N.W.2d 677 (Iowa
2010) (analyzing expert testimony that prescription drug was responsible
for plaintiff’s stroke or other physical ailments); Goudrealt v. Kleeman,
965 A.2d 1040 (N.H. 2009) (finding sufficient foundation for expert
testimony that surgeon more likely than not caused at least one vascular
injury); Gonzalez v. Poplawsky, 2001 WL 984836 (Tex. App. 2001)
(disregarding a physician’s testimony on causation because it was based
upon experience, not on peer reviewed studies). See Fed. R. Evid. 702.
23 Stubbs v. City of Rochester, 226 N.Y. 516, 124 N.E. 137 (1919).
24 See e.g., Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374
(D.C. 1995); Nolan v. Weil-McLain, 910 N.E.2d 549 (Ill. 2009) (holding that
manufacturer of asbestos-containing boilers should have been permitted to
admit evidence of worker’s exposure to asbestos from other sources); cf.
City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007)
(rejecting liability in lead paint litigation where plaintiff could not identify
particular defendant whose paint caused harm).
25 The illustrative case and many like it could be analyzed as a scope
of risk problem; the risk the defendant negligently created by failure to
check his mirror only included the risk he could have discovered by
looking.
26 E.g., Richard Epstein, A Theory of Strict Liability, 2 J. Leg. Stud.
151 (1973), reprinted in Richard Epstein, A Theory of Strict Liability
(1980); Wex Malone, Ruminations on Cause-in-Fact, 9 Stan. L. Rev. 60
(1956), reprinted in Wex Malone, Essays on Torts 160 (1986); Robert N.
Strassfeld, If …: Counterfactuals in the Law, 60 Geo. Wash. L. Rev. 339
(1992); Richard Wright, Causation in Tort Law, 73 Cal. L. Rev. 1735
(1985); Symposium on Causation in the Law of Torts, 63 Chi.-Kent L. Rev.
397 (1987); Arno Becht & Frank Miller, The Test of Factual Causation
(1961).
27 See Chapter 35.
28 Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir.
1996) (“Courts have often conflated cause in fact and legal causation into
proximate cause, but the two are conceptually distinct.”).
29 See, e.g., Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009)
(noting that “causation has two components: cause in fact and legal
cause”); Hertog v. City of Seattle, 138 Wash.2d 265, 979 P.2d 400 (1999)
(“proximate cause … consists of cause in fact and legal causation”).
Harm) § 26 cmt. a, and ch. 6 Special Note on Proximate Cause (2010).
31 The different nature of the two inquiries is thoughtfully addressed
in Berte v. Bode, 692 N.W.2d 368 (Iowa 2005). For a helpful discussion of
the relationship between scope of liability and factual cause see Hale v.
Ostrow, 166 S.W.3d 713 (Tenn. 2005); Restatement Third of Torts
(Liability for Physical and Emotional Harm) § 29 cmt. f (2010).
32 See, e.g., Garr v. City of Ottumwa, 846 N.W.2d 865 (Iowa 2014)
(city’s negligence not a but-for cause of plaintiff’s harm); Columbia Med.
Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2009) (holding
that patient’s failure to inform physician of his prior heart murmur had
not been proved by sufficient evidence to have been a cause of his delayed
diagnosis and treatment).
33 See §§ 14.6 to 14.11.
34 E.g., Robinson v. Washington Metro. Transit Auth., 774 F.3d 33
(D.C. Cir. 2014); Friedrich v. Fetterman & Assocs., P.A., 137 S.3d 362 (Fla.
2013); Berte v. Bode, 692 N.W.2d 368 (Iowa 2005); Restatement Third of
35 Akin, Gump, Strauss, Hauer & Feld, LLP v. National Dev. &
Research Corp., 299 S.W.3d 106 (Tex. 2010).
36 See, e.g., City of Jackson v. Spann, 4 So.3d 1029 (Miss. 2009)
(substantial evidence supported conclusion that officers’ high speed
pursuit into intersection was but-for cause of accident).
37 Ford v. Trident Fisheries Co., 232 Mass. 400, 122 N.E. 389 (1919).
However, rescue at sea cases now show a different spirit, demanding that
the vessel maximize the sailor’s chances and holding it liable for failure to
do so. See § 14.11. Cf. Jordan v. Jordan, 220 Va. 160, 257 S.E.2d 761
(1979) (plaintiff was squatting behind a car, if the defendant had looked in
the rear-view mirror he would not have seen him; no actual cause).
38 An alternative analysis is to say that the defendant’s conduct
considered overall is a factual cause of the plaintiff’s harm but that the
defendant may escape liability because the harm was outside the scope of
the risk negligently created by the defendant. On details of the debate see
E. Wayne Thode, The Indefensible Use of the Hypothetical Case to
Determine Cause in Fact, 46 Tex. L. Rev. 423 (1968); James Henderson, A
Defense of the Use of the Hypothetical Case to Resolve the Causation
Issue, 47 Tex. L. Rev. 183 (1969); E. Wayne Thode, A Reply to the Defense,
47 Tex. L. Rev. 1344 (1969).
39 See, e.g., Harrison v. Binnion, 214 P.3d 631 (Idaho 2009) (even if
ER doctor had communicated seriousness of patient’s condition, attending
doctor would not have done anything differently or would have slightly
decreased rate of sodium replacement which might not have made any
difference); Kovach v. Caligor Midwest, 913 N.E.2d 193 (Ind. 2009) (even if
medicine cup had been designed for more precise measurement, overdose
of pain medication to child was not caused by imprecise measurement of
medication but by erroneous double dosage).
40 See, e.g., Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757 (Alaska
2008) (holding that two drivers who simultaneously struck moose whose
carcass lay in the road and posed hazard to plaintiff could both have been
actual causes of the plaintiff’s harm and overturning jury instruction that
implied “only one actor could have legally created the hazard”); Spann v.
Shuqualak Lumber Co., Inc., 990 So.2d 186 (Miss. 2008) (holding there
was a genuine issue of material fact as to whether fog from emissions of
lumber drying plant was a cause in fact of a two car collision).
41 Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005) (emphasis in
original).
42 For an incredibly thoughtful discussion of multiple cause cases see
Jane Stapleton, Unnecessary Causes, 129 LQR 39 (2013) (endorsing an
actual cause finding with both but-for cause and when the negligence
made a “positive contribution” to the mechanism by which the harm came
about).
43 See Note, Torts—Medical Malpractice—Rejection of “But for” Test,
45 N.C. L. Rev. 799, 804 (1967) (“We might as well ask what an elephant
would have been if it had not been an elephant”).
44 Cabral v. Ralphs Grocery Co., 51 Cal.4th 764, 122 Cal.Rptr. 3d
313, 248 P.3d 1170 (2011).
45 Id.
46 Salinetro v. Nystrom, 341 So.2d 1059 (Fla. Dist. Ct. App. 1977).
47 The plaintiff made it easy for the court to select its particular
alternative because she herself said she would have told the doctor she
was not. That testimony should not preclude careful lawyers from arguing
that further information was still possible along the lines suggested in the
text.
48 See, e.g., Israel v. Barnwell, 1996 WL 365413 (Conn. Super. Ct.
1996); Sweeney v. Bettendorf, 762 N.W.2d 873 (Iowa 2009) (holding that
evidence was not sufficient to conclude that had city provided appropriate
number of adults to supervise children at baseball game, supervising adult
would have been able to block flying bat that hit child spectator);
Thompson v. Tuggle, 486 So.2d 144 (La. Ct. App. 1986) (no witnesses saw
the chain saw sever decedent’s jugular; did the saw kickback or did
decedent fall on it? Would a different design have avoided the kickback?).
Imprecision may have the same effect. Cf. Harvey v. Washington, 95
S.W.3d 93 (Mo. 2003) (seemingly implying that a negligent failure by Dr. A
to advocate kidney dialysis would not have affected Dr. B’s decision to
delay dialysis because Doctor B knew of the facts and the need for the
treatment, but not actually discussing whether advocacy would have
induced Dr. B to proceed sooner with dialysis, which is the but-for
question).
49 See Arno Becht & Frank Miller, The Test of Factual Causation
(1961).
50 See Leon Green, The Causal Relation Issue in Negligence Law, 60
Mich. L. Rev. 543 (1962) (the cause questions asks for judgment that has
no component parts).
51 See Richard Epstein, A Theory of Strict Liability, 2 J. Leg. Stud.
151 (1973).
52 Edwin Peel & James Goudkamp, Winfield and Jolowicz on Tort 7–
007 (2014) (“most generally mentioned by the courts is the so-called “but-
for” test, or in Latin, causa (or condition) sine qua non”). See also Ken
Oliphant, Uncertain Factual Causation in the Restatement Third: Some
Comparative Notes, 37 Wm. Mitchell L. Rev. 1599 (2011) (comparing the
Restatement Third causation standards with causation standards used in
European countries).
53 See Delgado v. Interinsurance Exch. of Auto. Club of S. Cal., 47
Cal.4th 302, 315, 211 P.3d 1083, 1091 (2009) (so stating).
54 Landers v. East Tex. Salt Water Disposal Co., 248 S.W.2d 731
(Tex. 1952).
55 Thomas v. McKeever’s Enters. Inc., 388 S.W.3d 206 (Mo. Ct. App.
2012).
Harm) § 27 (2010).
57 Restatement First of Torts § 432(2) (1934).
58 E.g., Vincent v. Fairbanks Mem’l Hosp., 862 P.2d 847 (Alaska,
1993); Mitchell v. Gonzales, 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d
872 (1991). See Glover ex rel. Glover v. Jackson State Univ., 968 So.2d
1267, 1277 (Miss. 2007) (recognizing the substantial factor test). Caution:
the but-for test continues to govern except where each of two or more
causes is sufficient by itself to cause the harm complained of, Viner v.
Sweet, 30 Cal.4th 1232, 70 P.3d 1046, 135 Cal.Rptr. 2d 629 (2003).
59 This is the terminology of Professor Richard Wright in Causation
in Tort Law, 73 Cal. L. Rev. 1735 (1985), for cases like the two-fire case.
60 See Joshi v. Providence Health Sys. of Or. Corp., 342 Or. 152, 149
P.3d 1164 (2006) (requiring that defendant’s conduct must be sufficient to
cause harm even under the substantial factor test).
61 Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Ry., 146
Minn. 430, 179 N.W. 45 (1920) (negligently set fire combined with fire of
unknown origin; negligent firesetter is liable for all damage).
62 Cf. Landers v. East Tex. Salt Water Disposal Co., 151 Tex. 251,
248 S.W.2d 731 (1952) (two polluters, either of which would seemingly
have been sufficient to kill fish in the plaintiff’s lake; both are liable).
Velsicol Chem. Corp. v. Rowe, 543 S.W.2d 337 (Tenn. 1976), approves
Landers and adopts the single indivisible injury approach.
63 The four grounds that may be available, depending on the exact
facts include: (a) the substantial factor approach, (b) the single indivisible
injury rule; (c) but-for causation, which will yield a finding of causation if
the entire group of polluters collectively contributes exactly the number of
units of pollution to cause harm, since in that case any one polluter would
have avoided the harm by withholding his pollution; and (d) the argument
that the group of singly insufficient causes is a variation of the duplicative
cause or two fire cases where the total pollution is more than enough to
cause harm, the extra pollution being compared to the “extra” fire. By
statute, a number of persons may be liable for any given “release” of
hazardous materials. See, e.g., the Superfund statute, 42 U.S.C.A. § 9607.
64 David W. Robertson, The Common Sense of Cause in Fact, 75 Tex.
L. Rev. 1765, 1776 (1997).
65 This woefully under-expresses the elaborate analysis of causation
provided by Professor Richard Wright. He argues that cause is established
if an event is a necessary element of a set of events sufficient to produce
the harm. The two fire case represents two sufficient sets under this test.
See Richard W. Wright, Causation, Responsibility, Risk, Probability,
Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the
Concepts, 73 Iowa L. Rev. 1001 (1988).
66 Preemptive cause is Professor Wright’s term, contrasting with
duplicative cause. See note 65, supra.
67 Saden v. Kirby, 660 So.2d 423 (La. 1995) (flooding by one entity
had already peaked before other entity’s acts).
68 The issue of apportionment of liability on causal and fault grounds
is addressed more fully in chapter 35. Gerald W. Boston, Toxic
Apportionment: A Causation and Risk Contribution Model, 25 Envtl. L.
549 (1995), explores the possibility of apportioning liability in accordance
with the comparative risks introduced by the various parties, so long as
those risks were in fact causal.
69 David W. Robertson, Williams Powers, Jr., & David A. Anderson,
Cases and Materials on Torts 158–59 (1989); see Joseph W. Glannon, The
Law of Torts 127 (1995).
70 An Iowa jury instruction quoted in Foggia v. Des Moines Bowl-O-
Mat, Inc., 543 N.W.2d 889 (Iowa 1996), has it that “[t]he conduct of a party
is a proximate cause of damage when it is a substantial factor in producing
damage and when the damage would not have happened except for the
conduct. ‘Substantial’ means the party’s conduct has such an effect in
producing damage as to lead a reasonable person to regard it as a cause.
There can be more than one proximate cause of an injury or damage.” It
may be noticed that this is the equivalent, on the causal issue, of the
reasonable person instruction on the negligence issue. However, courts
and lawyers use detailed analyses to determine whether the evidence
suffices to show unreasonably risky conduct; that is the very thing missing
from the substantial factor approach to causation.
L. Rev. 1765, 1780 (1997). For a critique of the Restatement Second’s
substantial factor test, see also Geoffrey Rapp, Torts 2.0: The Restatement
3rd and the Architecture of Participation in American Tort Law, 32 Wm.
Mitchell L. Rev. 1011 (2011).
Harm) § 27 (2010).
73 Id. § 27 cmt. f. See also Michael D. Green & William C. Powers,
Jr., Conceptual Clarity and Necessary Muddles, 90 Tex. L. Rev. 41 (2011).
74 Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 858
(Iowa 1994) (“when the conduct of two or more persons is so related to an
event that their combined conduct, viewed as a whole, is a but-for cause of
the event, and application of the but-for rule to them individually would
absolve all of them, the conduct of each is a cause in fact of the event”). On
the multiple sufficient causes see Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 27 (2010).
75 Richard W. Wright, Causation in Tort Law, 73 Calif. L. Rev. 1735
(1985).
76 Id.
77 Richard W. Wright, Causation, Responsibility, Risk, Probability,
Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the
Concepts, 73 Iowa L. Rev. 1001 (1988).
& Supp.).
80 E.g., Reynolds Metals Co. v. Yturbide, 258 F.2d 321 (9th Cir. 1958)
(defendant’s plant operations produced fluoride compounds; evidence of
heavy amounts of such compounds in the vegetation nearby, with lesser
amounts farther away, warranted inference of escape; symptoms of nearby
landowners, coupled with lack of other explanations, warranted medical
opinion that illness resulted from escape of fluorides from the plant).
81 See Kenneth S. Abraham, Self-Proving Causation, 99 Va. L. Rev.
1811 (2013) (breach of duty proof that shows negligence can be self-proving
evidence of causation when the breach and associated negligence
significantly raises the risk of harm).
82 Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998). See
Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir. 1999) (“When a defendant’s
negligent act is deemed wrongful precisely because it has a strong
propensity to cause the type of injury that ensued, that very causal
tendency is evidence enough to establish a prima facie case of cause-in-
fact.”).
83 Reynolds v. Texas & Pac. Ry. Co., 37 La. Ann. 694 (1885). See
Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998); Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 28 cmt. b
(2010); cf. Alder v. Bayer Corp., AGFA Div., 61 P.3d 1068 (Utah 2002)
(plaintiffs’ injuries or symptoms were the kinds known to be risked by
chemical exposures for which the defendant was allegedly responsible; this
is a sufficient “ruling in” to permit differential diagnosis testimony ruling
out other diseases or causes).
84 Foddrill v. Crane, 894 N.E.2d 1070 (Ind. Ct. App. 2008) (also
holding that plaintiff needed no expert testimony on causation on such
facts). Cf. Yount v. Deibert, 147 P.3d 1065 (Kan. 2006) (inference that boys
who played with fire caused house fire).
85 See Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 688
P.2d 605 (1984). To be sure, cases in which courts take a quite restricted
view of causation can also be found. See Spencer v. McClure, 217 W.Va.
442, 618 S.E.2d 451 (2005) (holding that passenger in a multiple-vehicle
accident presented insufficient evidence that car that failed to stop before
hitting accident vehicles could have been a cause of her back injury).
86 E.g., Higgins Invs., Inc. v. Sturgill, 509 S.W.2d 266 (Ky. Ct. App.
1974) (although the fire blocked decedent’s exit from his room so that he
could not have reached a fire escape outside it, the only place for a fire
escape would have been in his room, so if one had been provided, he could
have escaped; consequently the failure to provide an escape was a cause of
his death). See Wex Malone, Ruminations on Cause-in-Fact, 9 Stan. L.
Rev. 60 (1956), reprinted in Wex Malone, Essays on Torts 160 (1986).
87 Haft v. Lone Palm Hotel, 3 Cal.3d 756, 478 P.2d 465, 91 Cal.Rptr.
745 (1970) (hotel pool drowning; hotel was required either to provide guard
or post a warning; it did neither, burden of proof shifted to the defendant
to absolve itself if it can); cf. Kopera v. Moschella, 400 F.Supp. 131 (S.D.
Miss. 1975) (no lifeguard at any time, court does not consider whether, had
a lifeguard been employed, he would have been on duty when the
drowning occurred); but cf. Jojo’s Rests., Inc. v. McFadden, 117 S.W.3d 279
(Tex. App. 2003) (if additional security guards were needed there was still
no showing that their presence would have prevented injury to customer).
88 E.g., Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710 (1993).
89 Mitchell v. Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689 (Iowa
2013) (it was up to the jury to decide whether school district’s negligence
increased the risk that student would be raped by another student);
Manley v. Sherer, 992 N.E.2d 670 (Ind. 2013) (genuine issue of material
fact as to causation when doctor failed to warn patient not to drive on
prescribed medication and patient crashed into another driver).
90 Compare Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429
N.Y.S.2d 606, 407 N.E.2d 451 (1980) (presence of lobby attendant would
have deterred shooting), with Saelzler v. Advanced Group 400, 25 Cal.4th
763, 23 P.3d 1143, 107 Cal.Rptr.2d 617 (2001) (better security might not
have deterred unknown attackers), and Shaner v. Tucson Airport Auth.
Inc., 117 Ariz. 444, 573 P.2d 518 (Ct. App. 1978) (lights in parking lot
would not have deterred attack on woman).
91 Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir.
1996) (fall in defendant’s bathtub, which had inadequate non-slip strips;
since plaintiff might have been standing on existing strips when she fell,
she could not show that the addition of other strips would have prevented
the fall); Saelzler v. Advanced Group, 400, 25 Cal.4th 763, 23 P.3d 1143,
107 Cal.Rptr. 2d 617 (2001) (plaintiff’s claim that the defendant was
negligent in failing to provide better security was dismissed because better
security might still have been unsafe for this particular plaintiff). One of
the most interesting cases, but most aggressive use of the actual cause
element by the court is Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P.,
737 F.3d 166 (2d Cir. 2013) (despite extensive reconstruction by fire
science experts, plaintiff insurer had not proved, for purposes of summary
judgment, that alleged negligence in the design and construction of 7
World Trade Center was a factual cause of the building’s collapse from fire
in the 9/11 terrorist attacks).
92 See Salica v. Tucson Heart Hosp.-Carondelet, LLC, 224 Ariz. 414,
231 P.3d 946 (Ct. App. 2010) (citing Summers with approval and holding
that to avoid the “ ‘unfairness of denying the injured person redress simply
because he cannot prove how much damage each [tortfeasor] did, when it
is certain that between them they did all,’ tortfeasors are left to apportion
damages among themselves when causation is potentially
indeterminable”).
93 Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948).
94 The court treats the case as if only one shot struck the plaintiff
and only one tortfeasor could have fired. However, the plaintiff was struck
elsewhere by another shot that caused minor harm. That raises the
possibility that the case could be handled under an indivisible injury
rationale, although Prosser and the Restatement might regard this as a
case of two injuries and therefore not to be blessed with the indivisible
injury treatment. See Restatement Second of Torts § 433A(1)(a) (1965);
Prosser & Keeton on the Law of Torts § 41 (5th ed. 1984).
95 See McMillan v. Mahoney, 99 N.C.App. 448, 393 S.E.2d 298
(1990). In Fairchild v. Glenhaven Funeral Servs., [2002] 3 All. E.R. 305,
2002 WL 820081 (H.L. 2002), Lord Bingham of Cornhill concluded that
most European countries obtained the same result under specific code
provisions or otherwise.
96 It seems inherently improbable that either hunter firing at the
same target would be able to watch the scattered shot fly through the air
to strike the plaintiff. Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541
N.Y.S.2d 941, 539 N.E.2d 1069 (1989), explicitly stated this rationale, but
only for the purpose of finding it inapplicable to a case of many actors.
97 For a similar later case see Hellums v. Raber, 853 N.E.2d 143
(Ind. Ct. App. 2006). This theme appears in a number of cases that do not
necessarily involve the alternative causation but do involve causal doubts.
E.g., Gardner v. National Bulk Carriers, Inc., 310 F.2d 284, 91 A.L.R.2d
1023 (4th Cir. 1962) (the defendant’s failure to search for a man overboard
“obliterated all possibility of evidence to prove whether a search, if
undertaken, would have succeeded or failed”).
98 Cook v. Lewis, [1952] 1 D.L.R. 1 (1951) was a case similar to
Summers v. Tice. In Cook, Rand, J., reasoned that the negligent
defendants had “violated not only the victim’s substantive right to
security, but … also culpably impaired the latter’s remedial right of
establishing liability. By confusing his act with environmental conditions,
he has, in effect, destroyed the victim’s power of proof.” Later, in Dow
Corning Corp. v. Hollis, 129 D.L.R.4th 609 (1995), the majority appeared
to approve of that reasoning.
L. Rev. 1765, 1787 (1997), using this reasoning to explain Saunders Sys.
Birmingham Co. v. Adams, 117 So. 72 (Ala. 1928), where the lessor
provided a car with no brakes and the driver failed to use them.
100 See Zuchowicz v. United States, 140 F.3d 381, 390–91 (3d Cir.
1998). However, if the principle described rests on a causal inference, such
an inference is not logically possible against two actors where it is known
that only one of them could have caused the harm, as in Summers itself.
101 See Judith Jarvis Thomson, Remarks on Causation and Liability,
13 Phil. & Pub. Aff. 101 (1984) (discussing the defendant’s freedom of
action as a constraint on liability when the defendant has not causally
contributed to the plaintiff’s injury).
102 The Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 28 (2010) shifts the burden to the defendant when the
plaintiff sues all the tortfeasors who exposed the plaintiff to a risk and
proves that one or more caused the harm but that he cannot reasonably
prove which of the defendants caused it. Comments (b), (f) and (g) discuss
inference and speculation in proving causation and burden shifting.
103 Cuonzo v. Shore, 958 A.2d 840 (Del. 2008) (“To permit burden
shifting, both drivers must have been negligent”); State v. CTL Distrib.,
Inc., 715 So.2d 262 (Fla. Dist. Ct. App. 1998); Canavan v. Galuski, 2
A.D.3d 1039, 769 N.Y.S.2d 629 (2003); Peck v. Serio, 155 Ohio App. 3d
471, 801 N.E.2d 890 (2003); Pennfield Corp. v. Meadow Valley Elec., Inc.,
413 Pa. Super. 187, 604 A.2d 1082 (1992).
104 At times courts have not distinguished between Summers and
true concert of action cases. See Scott v. Rayhrer, 185 Cal.App.4th 1535,
111 Cal.Rptr.3d 36 (2010) (regarding Summers as a concert of action case).
In McMillan v. Mahoney, 99 N.C. App. 448, 393 S.E.2d 298 (1990), the
complaint alleged that two boys were firing air rifles together, that a pellet
from one struck the plaintiff causing brain damage, and that one of the
boys was negligent. The court appeared to approve the alternative
causation theory, but seemingly decided the case on the ground that the
boys acted in concert, since that theory would justify liability of both if
either one were negligent. See Lewis v. Lead Indus. Ass’n, Inc., 342
Ill.App.3d 95, 793 N.E.2d 869, 276 Ill.Dec. 110 (2003) (lead pigment
manufacturers who failed to warn of lead dangers were conspirators,
plaintiffs exposed to lead and undergoing medical monitoring could recover
from all; each would be liable for the acts of that one co-conspirator).
105 Minnich v. Ashland Oil Co., Inc., 15 Ohio St.3d 396, 473 N.E.2d
1199 (1984); accord, as to two manufacturers of heparin, a drug alleged to
be defective, Wysocki v. Reed, 222 Ill.App.3d 268, 583 N.E.2d 1139 (1991);
Huston v. Konieczny, 52 Ohio St. 3d 214, 556 N.E.2d 505 (1990) (several
possible suppliers of beer to underage drinker); Jane Stapleton, Lords
a’Leaping Evidentiary Gaps, 10 Tort L.J. 276 (2002).
106 Gaulding v. Celotex Corp., 772 S.W.2d 66 (Tex. 1989); cf. Doe v.
Baxter Healthcare Corp., 380 F.3d 399 (8th Cir. 2004) (plaintiff must
prove that non-joined persons did not cause the injury and seemingly must
do so by a standard much higher than the preponderance of the evidence
standard); Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984).
107 Comment, DES and a Proposed Theory of Enterprise Liability, 46
Fordham L. Rev. 963 (1978).
108 Sindell v. Abbott Labs., 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d
924 (1980) (the original case); Conley v. Boyle Drug Co., 570 So.2d 275
(Fla. 1990); Smith v. Cutter Biological, Inc., 72 Haw. 416, 823 P.2d 717
(1991); Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539
N.E.2d 1069 (1989); Martin v. Abbott Labs., 102 Wash.2d 581, 689 P.2d
368 (l984); Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984)
(liability in proportion to risk imposed, with market share relevant in
determining that risk).
109 The California Court, initiating the whole idea in Sindell, may
have been uncertain about joint and several liability, but later cleared that
up. See Brown v. Sup. Ct., 44 Cal.3d 1049, 751 P.2d 470, 245 Cal.Rptr. 412
(1988). One court rejected market share liability in favor of an alternative
causation theory, which of course does use joint and several liability. Abel
v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164 (1984).
110 Smith v. Eli Lilly & Co., 137 Ill.2d 222, 560 N.E.2d 324 (1990);
Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. 1984); Gorman v. Abbott
Labs., 599 A.2d 1364 (R.I. 1991).
111 Compare Thomas v. Mallett, 701 N.W.2d 523 (Wis. 2005) (market
share liability of manufacturers of lead paint), with City of St. Louis v.
Benjamin Moore & Co., 226 S.W.3d 110 (Mo. 2007) (disallowing nuisance
claim against lead paint manufacturers because city could not identify
which lead paint manufacturers’ products were used on which homes that
required abatement of lead paint), and Bly v. Tri-Continental Indus., Inc.,
663 A.2d 1232 (D.C. 1995) (different levels of benzene in petroleum
products one reason to reject market share theory on the facts).
112 Restatement Third of Torts (Products Liability) § 15 cmt. c (1998).
Harm) § 28 cmt. p (2010).
Supp.).
115 Id. § 192.
116 See also CSX Transp., Inc. v. Miller, 46 So.3d 434 (Ala. 2010)
(defendant’s tortious harm combined with preexisting injury to create
indivisible injury; defendant may be liable for full injury); Perius v. Nodak
Mut. Ins. Co., 782 N.W.2d 255 (N.D. 2010) (defendant must compensate
the victim for the aggravation, but not for the preexisting injury itself);
Harris v. ShopKo Stores, Inc., 308 P.3d 449 (Utah 2013).
Supp.).
118 Dumas v. Cooney, 235 Cal.App.3d 1593, 1 Cal.Rptr.2d 584 (1991);
Grant v. American Nat’l Red Cross, 745 A.2d 316 (D.C. 2000); Gooding v.
University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984); Fennell v.
Southern Md. Hosp. Ctr., Inc., 320 Md. 776, 580 A.2d 206 (1990); Joshi v.
Providence Health Sys. of Or. Corp., 342 Or. 152, 149 P.3d 1164 (2006)
(death action for malpractice that deprived decedent of a 30% chance could
not succeed under death statute’s requirement of causation; the but-for
test must be used except in the case of multiple tortfeasors each of which
is sufficient by itself to cause the harm complained of); Jones v. Owings,
456 S.E.2d 371 (S.C. 1995) (lost chance doctrine contrary to the most basic
standards); Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993); Columbia
Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009)
(finding error when jurors were not told that patient must have had a
greater than 50% chance of surviving cancer in order to recover in medical
malpractice case); Smith v. Parrott, 833 A.2d 843 (Vt. 2003) (construing
statute to codify the common law rules of causation).
119 See Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2009).
120 Mich. Comp. Laws Ann. § 609.2912a(2). However, what exactly
the statute requires is a subject of dispute. See Stone v. Williamson, 753
N.W.2d 106 (Mich. 2008) (examining the Michigan statute and the lost
chance claim).
121 Steven R. Koch, Whose Loss Is It Anyway? Effects of the “Lost-
Chance” Doctrine on Civil Litigation and Medical Malpractice Insurance,
88 N.C. L. Rev. 595 (2010) (arguing that adopting lost-chance claims has
no significant impact on state malpractice costs).
122 Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 688 P.2d
605 (1984); Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995).
123 Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). If a court
perceives a basis for apportionment, the same reasoning supports the more
limited value of the chance award. See Scafidi v. Seiler, 119 N.J. 93, 574
A.2d 398 (1990).
124 Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000).
125 Lord v. Lovett, 770 A.2d 1103 (N.H. 2001); Joseph H. King, Jr.,
“Reduction of Likelihood” Reformulation and Other Retrofitting of the
Loss-of-a-Chance Doctrine, 28 U. Mem. L. Rev. 492 (1998).
126 Joseph H. King, Jr., Causation, Valuation and Chance in Personal
Injury Torts, 90 Yale L. J. 1353 (1981).
127 See Mohr v. Grantham, 172 Wash.2d 844, 262 P.3d 490 (2011)
(“the loss of chance is the compensable injury”; “the injury is the lost
chance”).
128 See Murrey v. United States, 73 F.3d 1448 (7th Cir. 1995) (“No
doubt Murrey would have paid a lot (if he had had a lot to pay) for a 5
percent chance of survival if the alternative was a certainty of immediate
death. This shows that he lost something by being deprived of that
chance”); Wollen v. DePaul Health Ctr., 828 S.W.2d 681 (Mo. 1992)
(patient “would pay to have a choice between three unmarked doors—
behind two of which were death, with life the third option”); McMackin v.
Johnson County Healthcare Ctr., 73 P.3d 1094 (Wyo. 2003), sustained on
rehearing, 88 P.3d 491 (2004) (“Much of the American health care dollar is
spent on such treatments, aimed at improving the odds”); Joseph H. King,
Jr., “Reduction of Likelihood” Reformulation and Other Retrofitting of the
Loss-of-a-Chance Doctrine, 28 Mem. St. U. L. Rev. 492, 540 (1998).
129 See Holton v. Memorial Hosp., 176 Ill.2d 95, 118, 679 N.E.2d 1202,
1212, 223 Ill. Dec. 429, 439 (1997) (“To the extent a plaintiff’s chance of
recovery or survival is lessened by the malpractice, he or she should be
able to present evidence to a jury that the defendant’s malpractice, to a
reasonable degree of medical certainty, proximately caused the increased
risk of harm or lost chance of recovery.”).
130 Alexander v. Scheid, 726 N.E.2d 272, 279 (Ind. 2000) (“We think
that loss of chance is better understood as a description of the injury than
as either a term for a separate cause of action or a surrogate for the
causation element of a negligence claim. If a plaintiff seeks recovery
specifically for what the plaintiff alleges the doctor to have caused, i.e., a
decrease in the patient’s probability of recovery, rather than for the
ultimate outcome, causation is no longer debatable. Rather, the problem
becomes one of identification and valuation or quantification of that
injury.”); McMackin v. Johnson County Healthcare Ctr., 73 P.3d 1094
(Wyo. 2003), sustained on rehearing, 88 P.3d 491 (2004).
131 See Dickhoff v. Green, 836 N.W.2d 321 (Minn. 2013); David A.
Fischer, Tort Recovery for Loss of a Chance, 36 Wake Forest L. Rev. 605
(2001).
132 Connecticut has said that the lost chance recovery will not be
permitted unless the plaintiff’s chance was greater than 50% to begin
with. Boone v. William W. Backus Hosp., 272 Conn. 551, 574, 864 A.2d 1,
18 (2005) (“in order to satisfy the elements of a lost chance claim, the
plaintiff must [first] prove that prior to the defendant’s alleged negligence,
the [decedent] had a chance of survival of at least 51 percent,” relying on
lower court decisions from the same state).
133 Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299
(Mo. 2011) (where plaintiffs can establish that decedant died as a result of
the defendants’ negligence, the recovery is based on the wrongful death
statutes and the loss of chance theory has no application).
134 Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008).
135 Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44, 52
(1990) (“37.5 percent times the damages recoverable for wrongful death”)
(now limited by legislation in medical malpractice cases); Scafidi v. Seiler,
119 N.J. 93, 574 A.2d 398 (1990) (jury to determine chance in percentage
terms); Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 805 P.2d 589 (1991);
Alberts v. Schultz, 126 N.M. 807, 815, 975 P.2d 1279, 1287 (1999) (“the
value of a plaintiff’s twenty-percent chance of saving a limb is twenty
percent of the value of the entire limb”); Roberts v. Ohio Permanente Med.
Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480 (1996); McKellips v. Saint
Francis Hosp., Inc., 741 P.2d 467, 476 (Okla. 1987) (“The amount of
damages recoverable is equal to the percent of chance lost multiplied by
the total amount of damages which are ordinarily allowed in a wrongful
death action”).
136 See Sawlani v. Mills, 830 N.E.2d 932 (Ind. Ct. App. 2005). Sawlani
recognizes two formulations used in Indiana cases. In one, damages are
calculated by “subtracting the decedent’s postnegligence chance of survival
from the prenegligence chance of survival,” then using the resulting
percentage figure to multiply “the total amount of damages which are
ordinarily allowed in a wrongful death action.” In the other, “damages …
should be based upon ‘the reduction of the patient’s expectancy from her
pre-negligence expectancy’ and the jury must ‘attach a monetary amount’
to the patient’s loss of life expectancy.” The court regarded these
formulations as calling for different measurements of damages.
137 See Lars Noah, An Inventory of Mathematical Blunders in
Applying the Loss-of-a-Chance Doctrine, 24 Rev. Litig. 369 (2005).
138 Smith v. State, 676 So.2d 543 (La. 1996).
139 Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 61, 631
N.W.2d 686, 691 (2001) (plaintiff whose chance of long term survival was
reduced by 40% (as interpreted by the court), could not recover for lost
chance, but could recover for “(1) the more invasive medical treatments
caused by the one-year delay in her diagnosis, (2) the emotional trauma
attributable to her unnecessarily worsened physical condition, and (3) the
pain and suffering attributable to her unnecessarily worsened physical
condition”).
140 See David A. Fischer, Proportional Liability: Statistical Evidence
and the Probability Paradox, 46 Vand. L. Rev. 1201 (1993) (distinguishing
proportional damage recovery from proportional risk recovery and both
from the creation of a fund proportioned to risks but set aside to be paid
only when the risk eventuates); Joseph H. King, Jr., “Reduction of
Likelihood” Reformulation and Other Retrofitting of the Loss-of-a-Chance
Doctrine, 28 Mem. St. U. L. Rev. 492, 560 (1998).
141 Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir. 1986)
(distinguishing lost chance cases where harm has actually occurred);
Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315 (5th Cir. 1986);
Williams v. Manchester, 888 N.E.2d 1 (Ill. 2008) (driver’s collision with
pregnant mother which required x-rays and increased risk of fetal damage
was not a present injury to the fetus for which recovery would be granted);
Mauro v. Raymark Indus., Inc., 116 N.J. 126, 138, 561 A.2d 257, 264
(1989).
142 See James A. Henderson, Jr. & Aaron D. Twerski, Asbestos
Litigation Gone Mad: Exposure-Based Recovery for Increased Risk,
Mental Distress, and Medical Monitoring, 53 S.C. L. Rev. 815 (2002); cf.
See Joseph H. King, Jr., “Reduction of Likelihood” Reformulation and
Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 Mem. St. U. L.
Rev. 492, 510 (1998) (recovery more likely if future harm is considered
part of present injury).
143 See, e.g., Donovan v. Philip Morris, 914 N.E.2d 891 (Mass. 2009)
(permitting cigarette smokers’ suit for medical monitoring based on
present injury to lung tissue and increased future risk of lung cancer);
Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996).
144 Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000) (cancer
progressed substantially when doctor failed to follow up x-ray showing
lung spot; it was in remission at time of suit; a reduction in life expectancy
is a recoverable item). Contra: Wickens v. Oakwood Healthcare Sys., 465
Mich. 53, 631 N.W.2d 686 (2001) (recovery denied under statute but
recovery for emotional harms inflicted is permitted).
145 Dillon v. Evanston Hosp., 771 N.E.2d 357 (Ill. 2002).
Supp.).
337
Chapter 15
SCOPE OF LIABILITY (PROXIMATE

CAUSE)
Analysis
A. RULES, RATIONALES AND CONTEXT
§ 15.6 Patterns and Formal Tests of Scope of Liability
§ 15.7 The Direct-Cause Pattern and Foreseeable Harms
§ 15.8 The Direct-Cause Pattern and Unforeseeable Harms
§ 15.9 The Intervening Cause Pattern and Superseding Cause Analysis
B. THE GENERAL RULES OF FORESEEABILITY
C. INTERVENING ACTS OR FORCES
D. ALTERNATIVES
§ 15.20 Joint and Several Liability and Comparative Fault
__________
A. RULES, RATIONALES AND CONTEXT
To prevail in a negligence action, the plaintiff must bear the
burden of showing that the harm she suffered is within the
defendant’s scope of liability—in other words, that the harm
resulted from the risks that made the defendant’s conduct tortious
in the first place.1 As the Third Restatement points out, while
scope of liability is an element of the prima facie case, “facts
beyond those established for other elements of the tort are almost
never involved,” because usually the plaintiff’s harm is within the
scope of defendant’s
338
liability “and requires no further attention.”2 This means that

the element operates “more like an affirmative defense, although
formally it is not one.”3
Terminology. This requirement is commonly known as
proximate cause, although that well-worn term has been justly
criticized for years as inaccurate, misleading, and confusing, and
has been rejected by the Third Restatement of Torts, as it was in
the Second.4 This book, following the lead of the Third
Restatement, employs the term scope of liability where it will aid
understanding, but falls back on the still-commonly used term
proximate cause where use of a different term would itself produce
confusion. Factual cause5 is an entirely separate element.6
Function in limiting scope of responsibility. As the newer
terminology indicates, proximate cause rules are among those rules
that seek to determine the appropriate scope of a negligent
defendant’s liability.7 The central goal of this requirement is to
limit the defendant’s liability to the kinds of harms he risked by his
negligent conduct.8 Judicial decisions about proximate cause rules
thus attempt to discern whether, in the particular case before the
court, the harm that resulted from the defendant’s negligence is so
clearly outside the risks he created that it would be unjust or at
least impractical to impose liability.9 The so-called proximate cause
issue is not about causation at all but about the appropriate scope
of legal responsibility.10 The issue does not arise until negligence
and factual cause have been proven.11
Illustrating the issue. Two examples illustrate the idea that a
negligent defendant who is a factual cause of harm should
nevertheless sometimes escape liability. First, suppose that a
surgeon negligently performs a vasectomy. Because the surgery
was negligently performed, the patient fathers a child. The child,
at the age of 13, sets fire to the plaintiff’s barn. Is the surgeon
liable for the loss of the barn? He was negligent in performing the
vasectomy, and his negligence is a factual cause of the loss of the
barn. Almost everyone will agree, however, that while the surgeon
might be liable for
339
something, he is surely not liable for the loss of the plaintiff’s

barn. Courts are likely in such a case to say that the surgeon’s
negligence is not a proximate cause of the harm, by which they
mean that the harm was not within the scope of risks the
defendant created. The risk he created was that the child’s father
would have a child against his wishes, but not that the child would
be more likely than other children to set fire to barns.
Second, suppose that the defendant negligently manufactures a
vacuum cleaner so that it does not have good suction. After several
frustrating days using the cleaner, the purchaser takes it to the
repair shop. On her way to the shop, the purchaser is struck by a
car and suffers injury. The manufacturer was negligent. The
manufacturer’s negligence was one of the many factual causes
leading to the purchaser’s harm—but for the manufacturer’s
negligence, the purchaser would have stayed home safely cleaning
carpets and would not have been struck by a car. Yet here again,
legal professionals are likely to agree that the manufacturer’s
conduct in making the poor vacuum was not a proximate cause of
the plaintiff’s injury, because the defendant’s negligence did not
create or increase the risk of injury in a vehicular collision.
Foreseeability tests. The most general and pervasive approach to
scope of liability or proximate cause holds that a negligent
defendant is liable for all the general kinds of harms he foreseeably
risked by his negligent conduct and to the class of persons he put
at risk by that conduct. Conversely, in the common parlance, he is
not a proximate cause of, and therefore not liable for, injuries that
were unforeseeable. This does not mean that the defendant’s
conduct must be the only proximate cause of the plaintiff’s injury.12
On the contrary, several wrongdoers are frequently proximate
causes of harm.13 Put differently, a single harm may be within the
scope of liability of several different tortfeasors. In that case, are
all liable to the plaintiff, either jointly and severally or on the basis
of their comparative fault shares.
On the other hand, if a second person or a new force
unforeseeably intervenes to substantially alter or enhance the risk
of harm the defendant created, responsibility for the injury may
fall solely upon the second actor.14 The second actor’s
unforeseeable conduct in such a case will often be called a
superseding cause. In these intervening cause cases, courts may
phrase the foreseeability test somewhat narrowly, by asking
whether the intervening cause itself was foreseeable rather than
by asking whether the general type of harm was foreseeable.
Under either version of the foreseeability test, courts appear to be
working toward the same central idea, that the defendant’s
liability is limited to those harms risked by his negligence, so that
he escapes liability altogether for those harms that were not
reasonably foreseeable at the time he acted.15
Practical concerns. Why is a defendant, whose negligent act has
caused harm, allowed to avoid liability under the scope of liability
rules? Courts and writers often
340
suggest that the proximate cause limitation is imposed

primarily for practical reasons.16 Without such a limit, liability,
they say, would go on forever, one harm leading endlessly to
others. The negligently made vacuum requires a trip to the repair
shop, which leads the user to an auto accident, which leads to
medical attention, which leads to another injury, which leads to
loss of a job, and so on, more or less without end. The argument is
that the line against liability must be drawn somewhere and that
the scope of liability or proximate cause rules reflect the effort
courts make to draw that line.
Principled limitations. The reasons for so-called proximate
cause limitations on liability are principled as well as practical.
Judgments about proximate cause are not precise, but, at least
roughly speaking, they reflect the ideas of justice as well as
practicality.17 In particular, the rules of proximate cause or scope
of liability attempt to limit liability to the reasons for imposing
liability in the first place.18 For instance, if the defendant is
considered to be negligent only because it makes a vacuum cleaner
that does not clean well, it should not be held liable when the
purchaser is in an automobile accident while taking the cleaner to
be repaired. The defendant in such a case negligently created a
risk that the cleaner was not worth its price or that carpets would
remain dirty. If the defendant is liable at all, those are the kinds of
harms to which liability extends. But equally, the defendant’s
liability should be limited to such harms, for those are the ones
that led us to say the defendant was negligent.19 Proximate cause
rules, which may dictate these results, can be seen as limiting
liability to its reasons.
As a corollary to negligence rules. Scope of liability or proximate
cause concerns are not limited to negligence cases.20 Where
negligence cases are concerned, however, a rule limiting liability to
the scope of the risk may be viewed as a corollary to or even a part
of the basic rule of negligence.21 Negligence rules say that the
defendant is free to ignore risks (foreseeable harms) that a
reasonable person would ignore. This might be the case because
the risks are small or because the costs of avoiding the risks are too
high. If the
341
scope of liability were not limited to the scope of the risk, the
defendant would not, after all, be free to ignore small risks or risks
that should be taken.
For example, suppose the defendant parks his car on the street,
parallel to the curb, in a no-parking zone. This conduct is negligent
because it runs the risk that traffic will be impeded, but leaving a
car parked in a no-parking zone does not negligently create a risk
of injury to an able-bodied pedestrian. Courts are likely to say that
the driver is not a proximate cause of the pedestrian’s harm from
walking into the car, even though other risks made it negligent to
park the car in such a way.
As this illustration suggests, the risk rule of proximate cause
and the ordinary rule of negligence are perhaps two aspects of the
same underlying idea. With suitable adaptations to the facts of
particular cases, this principle, or something very close to it,
furnishes a guide to “proximate cause” limitations on liability.
The language of foreseeability and risk. Professional usage
almost always reduces proximate cause issues to the question of
foreseeability. The defendant must have been reasonably able to
foresee the kind of harm that was actually suffered by the plaintiff
(or in some cases to foresee that the harm might come about
through intervention of others). For the ordinary case, the
principles behind scope of liability limitations can be implemented
quite well by use of this language. However, the term foreseeability
is itself a kind of shorthand. The defendant is not liable merely
because he could foresee harm; the harm must be the kind that he
should have avoided by acting more carefully. That is what is
meant by saying that the harm suffered by the plaintiff must have
been within the scope of the risk the defendant negligently created.
Risks that the defendant could foresee but that are risks
reasonably taken are no more a basis for finding “proximate cause”
than for finding negligence.
Limited functions and capacities of “proximate cause” rules. The
function of proximate cause rules is to facilitate or express a value
judgment about the appropriate scope of liability of a defendant
who is negligent and whose negligence in fact causes harm.
(Recognition of this point is, of course, behind the drive to change
the basic terminology from “proximate cause” to “scope of
liability.”) The rules and definitions are not primarily aimed at
guiding the defendant’s conduct but at guiding or expressing
judgment about that conduct on the basis of existing social norms.
The scope of liability or proximate cause rules give us the language
of argument and direct the thought that is brought to bear when
the connection between the defendant’s negligence and the
plaintiff’s injury seems tenuous. The rules call for judgments, not
juggernauts of logic. In consequence, no version of the rules can be
expected to assure any given answer in a particular case,22 and
scope of liability or proximate cause issues must always be
determined by the jury on the particular facts of the case23 unless
no reasonable jury could disagree on the issue.24
342

Conflating “proximate cause” and factual cause issues. One
major source of confusion about “proximate cause”—and thus
another aspect of the pesky terminology problem—lies in the fact
that many courts define the term in a way that gives it two distinct
meanings. In one form or another, courts often say that the
plaintiff, to prove proximate cause, must show (a) factual cause25
and (b) that the general type of harm was foreseeable.26 The effect
of this definition is that two distinct legal issues can be called by
the same name. It is quite correct to say that the plaintiff must
normally prove factual cause and that if the plaintiff fails to do so,
she will lose. However, factual cause has little or nothing to do
with the scope of liability function, turning largely on issues of
foreseeability and scope of the risk, to which the so-called
proximate cause rules are otherwise directed.27 When courts
conflate the two issues or group them together under the rubric of
“proximate cause,” lawyers cannot always be sure whether the
judge is talking about factual cause or scope of liability problems.
Indeed, judges sometimes seem to shift the meanings of the term
without realizing it.
Negligence foreseeability vs. “proximate cause” foreseeability.
The issue of scope of liability or proximate cause does not arise at
all unless the defendant is negligent in a way that can be
identified. If the defendant is negligent, that necessarily means he
should have foreseen some harm, of some kind, to some person or
property, and that a reasonable person would have taken
precautions against such harm. The foreseeability question left to
be determined under the proximate cause rules is whether he
should have foreseen the kind of harm or the kind of risk that in
fact resulted and whether the plaintiff was within the class of
persons to whom such harm might foreseeably befall.
Examples: negligence issues only. Although the difference
between foreseeability on the negligence issue and foreseeability on
the scope of liability (proximate cause) issue seems obvious, it is
easy to overlook. When the only negligence alleged is conduct
creating a foreseeable risk of the kind of harm that in fact
occurred, the court’s decision that negligence has been shown rules
out any argument that it was not a proximate cause of the harm.
Keys-in-the-car cases are good examples. If you leave the keys in
the ignition of your parked car, you may be foolish, but not
necessarily negligent. You would be negligent only if a reasonable
person under the circumstances would foresee that some
dangerous use of the car might follow, perhaps because a thief
takes the car and drives it negligently. Suppose the plaintiff is
injured when a thief speeds from the scene.
343
In that case, the trier’s decision that you were negligent is a

decision that also answers any proximate cause issue, because the
finding of negligence means that you should have foreseen the thief
and his reckless driving. On the other hand, if a reasonable person
would not be expected to foresee a thief’s negligent driving, then it
is hard to see how you are negligent at all in leaving the keys in
the car, since the worst that could happen would be your loss, not
injury to another.28 In cases like this, no substantial issue of scope
of liability (proximate cause) arises. The issue is instead about
negligence. The distinction can become important in many factual
settings29 and of course applies when the plaintiff’s conduct rather
than the defendant’s is in issue under comparative negligence
rules.30
Example: when scope of liability or proximate cause issue arises.
None of this is to deny that scope of liability or proximate cause
issues appropriately arise in many cases. If the thief who finds the
owner’s keys in the car drives safely away, sells the car to a dealer,
who sells it to a retired lawyer, most courts will undoubtedly
conclude that the owner’s leaving the key in the ignition did not
proximately cause the plaintiff’s harm. The foreseeability issue in
this example is about scope of liability, not about negligence, and
its answer is that the defendant is not a “proximate cause” of the
harm resulting from the lawyer’s driving.
Using no-duty or limited-duty rules to limit liability. Courts
sometimes limit the liability of a negligent defendant by holding
that the defendant owes no duty to the plaintiff, or that the
defendant owes only a duty not to be grossly or wantonly
negligent.31 Scope of liability or proximate cause rules also protect
negligent defendants, so the limited duty rules and the “proximate
cause” rules have something in common. In fact, some courts will
use the language of proximate cause to resolve some cases that
other courts might resolve in the language of duty. The duty and
scope of liability analyses are not, however, usefully
interchangeable, even though either might get the other’s result.32
First, whether a duty is owed is a question of law, while the scope
of liability issue is for the jury.33 Second, duty rules are classically
categorical and abstract; they cover a class or category of cases,34
where scope of liability or proximate cause decisions are quite fact-
specific rather than categorical.35
344
Duty or scope of liability: type of policy concerns involved.

Finally, while policy concerns about liability can often be expressed
either in the language of “proximate cause” or the language of
duty, scope of liability or proximate cause is most centrally
concerned with one particular policy or justice issue. It is
concerned with limiting liability to risks the defendant negligently
created. Duty issues are much broader. Courts may have many
reasons, good or bad, for limiting liability. While some courts
continue to discuss foreseeability on duty issues,36 some reasons
behind a conclusion that there either is or is not a duty relate not
at all to foreseeability, which is central in “proximate cause” cases.
For instance, courts may hold that social hosts may continue to
serve alcohol to a guest long after his intoxication is apparent and
in spite of the fact that he will foreseeability attempt to drive a car
and thus impose risks of harm to others.37 Because it was
foreseeable that the drinker would drive negligently and cause
injuries, it seems preposterous to say that the alcohol server was
not a proximate cause of the victim’s injury. If he is not liable, the
reason lies elsewhere. Consequently, many decisions once cast in
terms of proximate cause are now discussed in terms of duty,
where policy concerns completely alien to foreseeability can be
analyzed.
Simplification by excluding duty issues. Most issues that can
now be seen as issues about the existence of a defendant’s duty
rather than issues primarily about foreseeability of harm are
excluded from this chapter and left for coverage in the chapters on
duty.38 For example, courts treat stand-alone emotional distress
quite differently from ordinary physical injuries.39 In doing so, they
have sometimes used the language of proximate cause. In spite of
this, their real concerns have not been about foreseeability at all
but about the appropriate scope of duty or responsibility for
emotional conditions. Leaving these and other similar cases to be
resolved under the duty concept permits a coherent view of
proximate cause presented in this chapter.
The duty vs. proximate cause debate. Is it better to limit liability
by saying that the defendant was under no duty, or by saying that
the defendant was not a “proximate cause” of the harm? This is a
long-standing and worthwhile question. When the court wishes to
make a categorical rule and one not dependent on foreseeability,
the issue can usefully be characterized as one of duty rather than
one of scope of liability or proximate cause. Be that as it may,
however, the debate about appropriate terminology is not always
the same as the debate about the appropriate substantive
limitations on liability. The famous Palsgraf case40 complicated the
lives of generations of law students by tying the terminology
question to the substantive question. Judge Cardozo and the
majority insisted that the issue should be cast in the terminology of
duty and that the substantive rule should relieve the defendant of
liability if harm to the plaintiff was unforeseeable. Judge Andrews
and the dissenters thought that the issue should be cast in the
terminology of proximate cause and that as a matter of substantive
law, foreseeability should not be determinative. In contemporary
law, the terminology distinction has become unimportant
whenever the court concludes that the harm inflicted was
unforeseeable as a matter of law. Most courts today agree that,
whether the issue is cast as one of duty or of proximate cause, the
defendant is not liable for unforeseeable kinds
345
of harm.41 The distinction remains important, however, when

courts wish to limit liability for reasons unrelated to foreseeability.
§ 15.6 Patterns and Formal Tests of Scope of
Liability
Courts perceive scope of liability or proximate cause issues in
two distinct patterns. Although they ultimately concern themselves
with foreseeability in both patterns, the formal language of
discussion and the kind of foreseeability involved may depend upon
which pattern is involved.
Direct-harm pattern and example. In the first pattern, the
defendant negligently creates a risk of a harm—call it Harm A—
but an entirely different harm—Harm B—results. For example,
the defendant negligently drops a banana peel on the walk,
creating a foreseeable risk that someone will slip on it. The
plaintiff does not slip on the banana peel but hurts her back when
she bends over to pick it up. In this kind of situation most courts
simply ask whether the harm that occurred was foreseeable, that
is, whether it was one of the general kinds of harm that was
unreasonably risked by the defendant’s negligence.
Intervening cause pattern and example. In the second situation,
the defendant creates a risk of harm but the immediate trigger for
the harm is some other force or person. For example, the defendant
negligently drops the banana peel and the plaintiff slips on it, but
only because a purse snatcher pushes her as he grabs her purse. In
this situation courts are also concerned with foreseeability, but
they typically use more complicated language to formulate their
inquiries, asking whether the purse snatcher may have been a new
cause that superseded the negligence of the banana peel dropper.
Substantial identity of issues. In a strictly literal sense, perhaps
all cases belong in the intervening cause category. The plaintiff
who injured her back in bending over to pick up the banana peel
could herself be viewed as an intervening cause. Almost inevitably,
something, if only the movement of air, must intervene between
the defendant’s act and the plaintiff’s injury. But it is also true that
the intervening cause cases all entail questions about the scope of
the risk, so they can be resolved without a mention of intervening
or superseding causes.42 The distinction between direct and
indirect causes could very well be abolished, leaving courts merely
to ask whether the injury that occurred was within the risk created
by the defendant. Indeed, the cases as a whole may have that
effect. Nevertheless, in some cases, courts selectively ignore
intervening cause analysis while in others they reach out for it. If
the result is the same overall, the language of the opinions is not,
so the distinction cannot be wholly ignored.
Formal tests. The term proximate cause by itself explains
nothing, not even the kind of evidence to be considered. In an effort
to define the term, courts have at various times
346
invoked a litany of equally impenetrable phrases, some of them

simply opaque, others actively misleading.43
With slight variations in the words, courts usually instruct
juries or begin their own appellate discussions with a formal
definition asserting that a proximate cause of an injury is one
which, in a natural and continuous sequence, without any efficient
intervening cause, produces the injury.44 Sometimes courts define
proximate by saying that the defendant is liable only for the
“natural and probable consequences” of his acts,45 a test that
arguably might be read to put slightly less emphasis on the
sequence of events because it is quickly reduced nowadays to a
foreseeability test.46 In either case, if the plaintiff’s injury is
triggered by a new or intervening cause—one arising after the
defendant’s negligent act—courts may conclude that the new cause
is a superseding cause and that the defendant is relieved of
liability.
The emphasis on sequence and intervening causes seems to
depart from a foreseeability rule. But analysis, and most actual
decisions as well, indicate that the test ultimately asks judges or
juries to consider the reasonable foreseeability of the harm caused
or the forces involved in causing it. Judges considering the first or
direct harm pattern of cases usually want to know whether the
general type of harm is foreseeable, while judges considering the
second or intervening cause pattern may want to know whether
the intervening actor or the force he represents is foreseeable.
§ 15.7 The Direct-Cause Pattern and Foreseeable
Harms
The basic issue. In the direct-cause pattern, the defendant
negligently risks one kind of harm but an entirely different kind of
harm befalls the plaintiff. The problem in such cases is not that
some new cause supersedes the defendant’s liability, although
courts often try to impose a superseding cause analysis upon such
cases. The only problem is whether to impose liability for
unforeseeable kinds of harm.
Liability for foreseeable harms. The great majority of cases hold
negligent defendants liable only for harm of the same general kind
that they should have reasonably foreseen and should have acted
to avoid.47 The phrase, “should have acted to avoid” is a necessary
part of the rule; many harms are foreseeable but not risky enough
347
to require greater care.48 Liability attaches when the defendant

not only should have foreseen the type of harm but also should
have done something better to avoid it. Literal foreseeability by
itself is not enough. The same principle holds defendants liable
only to plaintiffs who are in the same general class of people who
were at risk from his negligence.49 These rules make liability
congruent with risk or foreseeability. Affirmatively, the defendant
is liable for the types of harm he unreasonably risked. Negatively,
the defendant is not liable for types of harm that he could not
reasonably foresee or those that were foreseeable but were risked
by non-negligent, reasonably safe conduct.
The foreseeability rule does not allow a negligent defendant to
avoid liability merely because a reasonable person would not have
foreseen specific details about the injury or how it happened. It is
enough for liability that the kinds of risks, harms, or classes of
person were foreseeable in a general way.50 Similarly, the
negligent defendant does not avoid liability merely because the
extent of injury is far greater than he could reasonably have
foreseen.51
The Wagon Mound illustration: type of harm risked. Since the
1960s, an English case has provided a basic model for the
foreseeability or risk rule. A ship known as the Wagon Mound,
which gives its name to the case,52 was anchored in the harbor at
Sydney, Australia. The ship negligently discharged oil into the
water, but, strange to say, the oil created no discernible risk of fire
because its composition required very high heat to ignite it.53
Although the oil created no foreseeable risk of fire, it did create
some other risks, most notably the risk that docks in the area
would be fouled. To everyone’s surprise—a phrase that can almost
always announce a proximate cause issue—an improbable
concatenation of events led to a fire after all. A piece of debris was
floating on the water just under the oil. On the debris a piece of
cotton was supported, all apparently by chance. A welder’s torch
gave off sparks that struck the cotton. The cotton smoldered long
enough to acquire sufficient heat to ignite the oil, and the
plaintiff’s dock was burned.
Under English authority existing up until that time, it would
have been possible to reason that the defendant should be liable for
the fire because there were no new independent causes of it; the
defendant was a direct cause and that would have been enough for
liability.54 But the Privy Council adopted the risk rule instead. It
held that liability for negligence was to be coextensive with the
negligence. If the defendant negligently created a risk of harm A,
but harm B resulted instead, the defendant would not be liable for
harm B. The Privy Council thought that since the only harm
foreseeable from negligent discharge of the oil was harm in the
nature of fouled docks, the defendant should not be liable for the
entirely unforeseeable harm caused by fire. One way to express the
idea is to say that, as to the fire, the defendant created no
unreasonable risk and hence as to the fire, the defendant was not
negligent at all. American cases are
348
overwhelmingly consistent with this rule, although their

manner of expression is often slightly different.
The Wagon Mound case should not be misunderstood. If the risk
of fire had been small but foreseeable and the defendant had had a
good reason to discharge the oil, the balance of risks and utilities
might indicate that the defendant was not negligent at all and
hence not liable. On the other hand, if the defendant had no good
reason for discharging the oil, even a small risk of fire might be
enough to justify a finding that the defendant was negligent. In
that case, the fact that fire was foreseeable would indicate that the
defendant should be liable for fire damage, even though the risk
was small.55
The Palsgraf illustration: class of persons at risk. The most
famous American case on proximate cause (or almost anything) is
grounded in the same basic idea that liability should be limited to
risks created by the defendant’s negligent conduct. In Palsgraf v.
Long Island Railroad Co.,56 railroad employees helping a
passenger onto a moving train may have negligently jostled his
arm, causing him to drop a package. If the employees were
negligent at all, it must have been because they created a risk of
harm to the passenger, to his package, or by a stretch of
imagination to someone very close by. What happened in fact was
that the innocent looking package contained fireworks, which
exploded when the package fell. As a result of the explosion, some
scales at the other end of the platform fell on Mrs. Palsgraf.
Since the unreasonable risk created by the defendant was a risk
to the passenger, or at most to a very small circle of persons who
might have been close enough to be injured if he fell, it created no
recognizable risk at all to Mrs. Palsgraf. As Judge Cardozo said,
“Relatively to her it was not negligence at all,”57 so the defendant
was not liable. Although Cardozo did not express this result as a
rule of proximate cause, the outcome it dictates is the outcome of a
proximate cause rule based on foreseeability of risk. “[T]he orbit of
the danger as disclosed to the eye of reasonable vigilance” marked
the scope of liability.58
Rescuers. Rescuer cases raise issues about the scope of the
Palsgraf class-of-persons rule. In a leading case, Wagner v.
International Railway,59 the defendant caused A to fall from a
train into a gorge. B went in search of the body. Then B himself fell
into the chasm. The trial court held that the defendant’s negligence
toward A would not support a claim for injury to B. This sounds
like the Palsgraf rule, but on appeal, Judge Cardozo held that B
could recover. Unfortunately, Judge Cardozo did not make it clear
whether he regarded liability as an exception to Palsgraf or
whether he believed that, since “[d]anger invites rescue,” the
rescue and hence the rescuer was within the scope of the
foreseeable risk.
349
In any event, courts usually recognize that the defendant who is

negligent to A may be liable to an injured rescuer,60 B, so long as
B’s actions are not wholly abnormal or hopeless.61 The result, as
most courts say, is that the defendant’s negligence is a proximate
cause of the rescuer’s injury and the rescuer’s natural heroism is
not a superseding cause.62 To invoke this rule, the rescue generally
need not be spontaneous or immediate,63 although some courts
have said otherwise.64 It has been held that B may recover for
injury incurred in a reasonable rescue attempt if the defendant
negligently created an appearance that rescue was needed when it
was not.65 Even when the defendant puts only himself in danger,
courts have held him liable for injury to his own rescuer suffered in
the course of a rescue attempt.66 Professional rescuers like
firefighters and police officers, however, may be barred from
recovery under special rules often applied to them.67
Classes of persons and classes of risks. Palsgraf differs from
Wagon Mound in detail but not in fundamental thrust. The
fundamental thrust is that liability for negligence is limited to the
risks negligently created by the defendant. The difference in detail
is that the risk at issue in Wagon Mound could be described as a
risk of a certain type or class of harm, while the risk at issue in
Palsgraf could be described as a risk to a certain class of persons.
Many, many common law cases are consistent with the scope of
risk rules both in the language of foreseeability68 and in their
results.69
Risks to particular interests. It is possible to conceptualize
different categories of legal interests or entitlements, such as one’s
interest in personal security as contrasted with the interest in
security of one’s property. With categories like this in mind, it
would be possible to say that under the foreseeability or risk rules,
a defendant who negligently risks harm to the plaintiff’s property
should not be liable if his negligent acts result in harm to the
person instead. In fact, however, courts have not drawn a
distinction between interests in bodily security and security of
one’s property.70 Physical risks of harm to property are in the same
general category as risks of physical harm to persons.
350
If a man negligently sets fire to your house, he is properly held

liable for harm to its occupants, even if he had every assurance
that the house was empty at the time.71 Put differently, injury to
persons by forces negligently unleashed is not a different kind of
injury from injury to property.
§ 15.8 The Direct-Cause Pattern and
Unforeseeable Harms
Purported liability for unforeseeable harms. Language used by a
few courts suggests they will impose liability upon a negligent
defendant for harms that are different in kind from the harms he
could have reasonably foreseen.72 Those courts sometimes seem to
say that, given duty, negligence, and factual cause, it is enough
that the harm occurred directly, without the intervention of a new
actor. It is very doubtful that liability unlimited by foreseeability
has much contemporary support.
The Polemis Case. Polemis73 was a leading case for the rule that
the defendant would be liable for all harms directly caused,
whether they were foreseeable or not. A stevedore aboard a vessel
placed planks across a hatchway. A sling dislodged one of the
planks; it fell into the ship’s hold. Flames immediately erupted and
consumed the ship. The sling operator could surely foresee that if
the plank were dislodged, someone below might be struck by it, but
no one who has tried making a fire by rubbing pieces of wood
together could expect a flame. It was an entirely unexpected result,
but because it was “direct,” the English Court of Appeal held that
the defendants responsible for the plank’s fall were liable.
Three groups of cases. Polemis itself was effectively overruled by
the Wagon Mound decision.74 Three narrow groups of cases might
be understood to support a kind of Polemis/direct harm liability
unlimited by foreseeability rules. (1) In the rescue cases, the
defendant creates a risk to A; he is held liable not only to A for any
harm done to him but also to rescuers who come to his aid.75 These
cases do not seem necessarily counter to the foreseeability rule.
Injury to a rescuer from the forces set in motion by the defendant’s
negligence seems to fall easily enough within the scope of the risks
created by the defendant. (2) The second group of cases involves a
plaintiff who is unusually susceptible to injury and who, for that
reason, suffers more harm than an ordinary person as a result of
the defendant’s negligence. Consistent with the foreseeability or
scope of risk approach, these cases can be understood to reflect the
general rule that the defendant is liable for the general type of
harm he foreseeably put at risk, even if that harm is greater in
degree than could be expected.76 (3) A third group of cases once
held that if a carrier of goods negligently delayed delivery to the
consignee, it would be liable for any harm that befell the delayed
goods, even if that harm resulted from an unforeseeable force of
nature over which the carrier had no control. As explained
elsewhere, these cases probably have little contemporary effect.77
In addition, both the
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rescue and susceptible plaintiff cases are generally accepted in

jurisdictions that clearly limit liability to foreseeable harms.
Reasons to doubt that liability is imposed beyond the risk.
Several reasons suggest caution in interpreting cases that purport
to impose liability beyond foreseeable harms. Some cases that
verbally reject foreseeability as a test of proximate cause in fact
limit liability to foreseeable harms under a duty or negligence
analysis. In other words, they do not reject the use of foreseeability
to limit liability but merely insist that it is to be considered under
the heading of duty rather than proximate cause.78
Still another reason for uncertainty about cases purporting to
impose liability beyond the risk is that, in some formulations, they
may stand for no more than the accepted rule that the defendant
does not escape liability merely because he could not foresee the
exact manner or extent of harm.79 If they mean no more than this,
they are not minority cases at all, but firmly within the
mainstream of the foreseeability rule.80
Finally, courts that purport to ignore foreseeability on the scope
of liability or proximate cause issue are quite willing, like other
courts, to make foreseeability controlling as soon as an intervening
cause is perceived.81 The upshot is that less than a handful of
courts purport to apply the kind of strict liability entailed in
imposing liability beyond the risk the defendant unreasonably
created, and even those may covertly or sporadically introduce
foreseeability into the liability equation.
It remains to be said that while few cases seem to impose
liability for unforeseeable harms, some cases may move in the
other direction by rejecting liability even for harms that are
entirely foreseeable. This was always the potential under the
Polemis direct harm test and some courts have said, at least in
certain commercial harm cases, that the harm must be both
foreseeable and direct, dismissing the claim for foreseeable harm if
the harm was not also “direct.”82
§ 15.9 The Intervening Cause Pattern and
Superseding Cause Analysis
In the intervening cause cases, the defendant negligently
creates risks of harm, but the immediate trigger of the harm is
another person or a force of nature.83 That by itself presents no
impediment to relief. If the first actor negligently creates a risk of
harm and the second actor negligently triggers the risk, both actors
are tortfeasors, both are causes in fact of the harm, and both are
commonly held liable to the plaintiff under the rules of joint and
several liability or comparative fault shares.84 However, in some
instances, the second actor causes a harm that may be
unforeseeable—outside the scope of the risk originally created by
the first. Courts frequently discuss such cases by asking whether
the second actor is a “superseding cause” so that the negligence of
the first actor is ignored and he escapes all liability. Such cases are
simply subsets or particular examples of the basic scope of the risk
problem and can be resolved under ordinary foreseeability
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rules without any intervening cause or superseding cause

language at all.85 A few courts have in fact abandoned the
superseding cause analysis, partly on the ground that it is
duplicative of the basic scope of risk analysis and confusing to
boot.86 However, the focus on temporal sequences in the
superseding cause analysis tends to detract from the essential
foreseeability analysis it purports to follow.87
Identifying intervening acts and forces. The courts’ verbal
approach in these cases is built on a rickety scaffold of terms and
definitions. First, the issue does not arise at all unless a new force
qualifies as an intervening cause. An intervening cause is a new
cause that comes into play after the defendant’s negligent conduct.
If the intervening force is in operation at the time the defendant
acted, it is not an intervening cause at all.88 For instance, if the
defendant sets a fire when the wind is blowing, he cannot avoid
liability when the wind carries the fire to the plaintiff’s house. The
wind, as a force in operation when the defendant acted, is not an
intervening cause.89 In many routine cases, causes are deemed
legally concurrent rather than intervening. Suppose drivers of two
cars both negligently contribute to a collision or a series of
collisions that harm the plaintiff. Such cases are almost always
treated as cases of concurring negligence, even if the negligence of
one driver occurred later than the negligence of the other.90 The
effect is that both are liable for at least a share of the plaintiff’s
damages and neither can claim the other as a superseding cause.
Superseding causes. If courts perceive an intervening act or
force as triggering injury, the defendant’s original negligence is
still one of the proximate causes of harm if the defendant’s conduct
led to the plaintiff’s injury in a continuous sequence, uninterrupted
by an efficient or independent intervening cause.91 On the other
hand, if the judge or the trier of fact believes that the intervening
cause is the only proximate cause because it is the efficient or
immediate cause, then the intervening cause will be called a
superseding cause and the defendant will not be liable.92
For example, if the defendant left a dangerous open cellar or
excavation and an intervening actor pushed the plaintiff into it,
some courts, at least at one time, concluded that the intervening
actor was an efficient, independent, or superseding cause of the
plaintiff’s harm. The result was that the defendant, who made the
danger available in the first place, was not liable at all.93
Sometimes the idea is expressed by saying, somewhat
argumentatively, that the defendant only passively created a
condition or
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occasion that made harm possible but that he was not a cause.94
All of these statements express conclusions, but none of them offers
either reasons or guidance to lawyers. Such statements add one
more layer of confusion to the analysis.95 In any event, the
propriety of the result in cases like these depends first upon the
facts of each case, second upon judicial ideas about the appropriate
scope of liability (ideas that have arguably changed over the years),
and third upon available alternatives, which now include joint and
several liability and comparative fault shares of liability.96
Foreseeable intervening causes. A ruling that an intervening
actor is a superseding cause embodies the dual conclusion that the
intervening actor should be responsible and that the original actor,
in spite of his causal negligence, should not. The intervening cause
terminology makes the issue look as if it were only concerned about
the sequence of events and unrelated to issues of responsibility,
foreseeability, or scope of risk. But in contemporary law, when
courts then ask what counts as a superseding cause, they return to
some form of the foreseeability inquiry. The rule is that if the
intervening cause itself is part of the risk negligently created by
the defendant,97 or if it is reasonably foreseeable at the time of the
defendant’s negligent conduct,98 then it is not a superseding cause
at all. In that case, the defendant is not relieved of liability merely
because some other person or force triggered the injury. The wordy
labels—superseding, intervening, efficient, independent—although
almost always invoked, turn out to be surplusage. The ultimate
inquiry on scope of the defendant’s liability is merely whether the
intervening cause is foreseeable or whether the injury is within the
scope of the risk negligently created by the defendant.99
Example. In a leading New York case,100 the plaintiff was
working for a company that sealed gas mains with boiling enamel.
The contractor responsible for the project required the plaintiff to
work at one end of a street excavation where he was exposed to
oncoming traffic and protected only by a quite inadequate
barricade. This put the plaintiff at risk that the plaintiff or the
boiling enamel or both might be struck by a negligent driver. A
driver suffered a seizure and ran through the barricade and into
the excavation, causing severe injury to the plaintiff. Because the
driver had failed to take his anti-seizure medication, the contractor
argued that the driver was a superseding cause of the plaintiff’s
injury. The argument failed. One reason was that the main
outlines of the risk to the plaintiff through intervening negligence
were foreseeable, even if the driver’s seizure itself was not.101 Put
more generally, an intervening cause does not
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supersede the defendant’s negligence when it reflects the same

general kind of risk which rendered the defendant negligent.
Unforeseeable intervening causes outside the scope of risk.
Courts usually say that if an intervening act (or force) is not
reasonably foreseeable, then the intervening event is a superseding
cause and the defendant as the original actor is relieved of
liability.102 This statement seems to imply that the intervening
force itself, not merely the general kind of harm, must have been
reasonably foreseeable when the defendant acted. That is not
invariably true, however.
B. THE GENERAL RULES OF FORESEEABILITY
As the preceding sections show, courts usually reduce the tests
of scope of liability or proximate cause, both in direct and in
intervening cause cases, to a question of foreseeability. To some
extent, the language of foreseeability is simply a shorthand
expression intended to say that the scope of the defendant’s
liability is determined by the scope of the risk he negligently
created.103 Foreseeability correlates with this idea in most cases,
but it can be misleading in others. Some harms that are entirely
foreseeable are nevertheless not harms a reasonable and prudent
person would seek to avoid. The point of limiting the defendant’s
liability under so-called proximate cause rules is to make the
defendant’s liability coextensive with his negligence. Consequently,
the defendant is not liable even for foreseeable harms if he was not
negligent in failing to minimize those harms. A more accurate
statement would be that the defendant is not liable for foreseeable
harms unless the risk of such harms was one of the reasons for
judging him to be negligent in the first place.104
Perhaps the easiest illustration is the kind of case in which the
defendant is negligent in driving a vehicle at high speed and
because of the speed arrives at a spot just in time to be struck by a
large tree that falls or an airplane that crashes. An injured
passenger can certainly assert that falling trees or crashing
airplanes are foreseeable. Nevertheless, the defendant’s speed does
nothing to create or increase the risk of such an incident. Falling
trees are foreseeable, but not a greater risk to those who drive fast
than to those who drive slowly. Consequently, the defendant is not
liable for injuries resulting in this manner.105 When courts say
that such a risk is unforeseeable what they mean is that it is not a
risk enhanced or created by the defendant’s conduct.
A carrier’s delay in delivering goods can create exactly the same
kind of problem. The delay may be negligent because it runs the
risk that the shipper or the consignee will suffer economic losses if
the goods are not delivered on time. If, because of the delay, the
goods aboard a carrier are subjected to an unforeseeable flood or
other force of nature,
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loss of or damage to the goods is fortuitous. Although we all
know that floods occur and are in that sense foreseeable,
reasonable persons do not act on the remote possibility of flooding.
For that reason, a carrier does not create an unreasonable risk of
flood damage to goods by its delay unless some immediate danger
would be apparent. The carrier in such a case is negligent, but not
negligent with respect to risks of flooding, so the carrier’s
negligence is not a “proximate cause” of the flood damage—in other
words, the flood damage was not one of the risks the defendant
created by its delay. That is all that courts mean by saying that the
flood was unforeseeable or that it was an intervening act of God.106
General rule. Courts assume a radical distinction between the
nature of a harm and its extent. The foreseeability or risk rule
holds the defendant subject to liability if he could reasonably
foresee the nature of the harm done, even if the total amount of
harm turned out to be quite unforeseeably large.107 For example,
suppose the defendant negligently operates his power boat so that
he could foresee that the plaintiff’s stamp collection is washed
overboard and lost or ruined. If that happens, the defendant is
liable for the loss of the collection, even if the defendant thought it
was worth only $100 when in fact it was worth $1 million. The
defendant was negligent in creating a risk of loss of the collection;
he knew or should have known the nature of the risk, even if he
could not have guessed the value of the collection.
The thin-skull or eggshell-skull rule. The rule that holds the
defendant liable for foreseeable harms even when the amount of
harm is not foreseeable finds a special expression in the thin-skull
or eggshell-skull rule, as it is usually known. The label derives
from an imagined case in which the plaintiff has an unusually thin
skull. The defendant, having no reason to know of the plaintiff’s
peculiar susceptibility, negligently injures the plaintiff’s head. The
blow would be uncomfortable to normal people, but to the plaintiff
it causes a fractured skull and serious injury. It seems to be agreed
that the plaintiff is entitled to recover for all the harm done, even
though a fractured skull was definitely not foreseeable.108 The
defendant, courts say, takes the plaintiff as he finds her.109 A
variant of the rule is that the defendant is liable for aggravation of
preexisting injuries or conditions.110
It is easy to misunderstand the thin-skull rule. First, it does not
make the defendant liable for the plaintiff’s preexisting condition
itself. The defendant’s negligence today is not a cause in fact of a
condition the plaintiff had yesterday. The thin-skull rule merely
holds that the defendant is liable for the unforeseeable aggravation
of that preexisting condition, not the condition itself.111 Second, the
rule applies only to the scope of liability
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issue, not to the negligence issue. It does not require the

defendant to exercise special care for an unforeseeably vulnerable
plaintiff. The defendant only need exercise ordinary care to prevent
foreseeable harms. The thin-skull rule comes into play only when
the defendant’s conduct would put normal people at risk.112 Once
the defendant does that, the rule provides that he is liable for all
the personal injuries actually caused, although they may be
greater than those that would be suffered by a normal person.113
Sometimes, however, courts seem to have taken the rule down
different paths, possibly with the unintended effect of imposing
liability without fault and even without factual cause.114
The fire cases. When the defendant negligently sets a fire that
spreads to the plaintiff’s property, New York courts developed a
unique rule that permitted recovery only by the first person to
whose property the fire spread.115 Other courts have allowed
recovery even though the fire has spread substantial distances, or
jumped creeks and ridges to reach the plaintiff’s property. Perhaps
these cases can be explained on the ground that the spread of fire
is foreseeable and that no one can count on fires to stop at obvious
barriers. However, at least some of the cases seem to illustrate and
support the rule that the defendant does not escape liability merely
because the harm done is more extensive than the defendant could
have foreseen. The defendant who negligently sets a fire might
reasonably believe beforehand that if it spread, it would certainly
go no farther than the nearest road. If it somehow leaps the road,
however, and continues to burn the other side, some cases hold
that the defendant is nevertheless liable.116
Manner of Injury Generally
Precise manner of injury rule. The defendant is liable for harms
he negligently caused so long as a reasonable person in his position
should have recognized or foreseen the general kind of harm the
plaintiff suffered.117 He is not ordinarily relieved of liability merely
because the precise manner of injury was unforeseeable.118 On the
same principle, the defendant is not relieved of liability merely
because he cannot foresee the
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time when injury will occur; if the defendant negligently arms a

bomb, he is liable for injuries it causes whether it explodes the next
day or two years later.119
Examples. If the defendant negligently leaves kerosene where it
might be ignited and burn the plaintiff, the fact that ignition
unforeseeably triggered an explosion rather than a burning is of no
consequence. The general type of accident was foreseeable, and
from a known source of harm; the explosion is a mere “variant of
the foreseeable.”120 Similarly, the defendant who negligently drives
a bus onto a railroad track as the train approaches puts passengers
at risk if for any reason the bus is delayed in clearing the track.
When the train strikes the bus, the bus driver does not escape
liability merely because the delay in getting the bus off the track
arose from an unforeseeable obstruction, because some kind of
delay and the general type of accident were foreseeable even if the
particular obstruction was not. In a South Carolina case,121 the
defendants maintained railroad tracks with insufficient ballast,
risking a derailment. The tracks were struck by a street sweeper
whose driver had fallen asleep. Shortly thereafter a train derailed,
causing injury to the plaintiff. Had the ballast level been proper,
the sweeper would have ridden over the tracks without dislocating
them or leaving them misaligned. Although a sleeping street
sweeper might not have been foreseeable, some kind of dislocation
was and that was enough to permit a finding that the defendants
were one of the proximate causes.
Risks from forces likely to cause unpredictable and diverse
harms. The manner of injury rule is especially applicable when the
defendant negligently creates risks of harm that are quite definite
in their results but tend to come about in unpredictable ways.
When the defendant unleashes large physical forces such as those
associated with automobiles, trains, large ships broken loose from
their moorings, and other powerful instruments, he creates risks
that injury could be caused in diverse ways, too numerous and
particular to foresee in detail. For example, if I drive too fast, I
create the general risk of causing personal injury and property
damage to those on the road and sometimes even to those who are
off the road. I probably cannot foresee all the ways in which that
general risk might actually come about, but I do know that injury
might come about in many particular ways resulting from my
speed, including some so bizarre that I might not ever be able to
imagine them in advance.122 In this kind of case, the risk rule does
not readily relieve me of liability. The case calls for the rule that if
I foresee the risk in general, I need not foresee the details.
Consequently, if my speeding causes me to lose control and drive
my car into someone’s living room, I am liable for the damage done,
even if no one would have ever said in advance that the risk of
living-room damage is a reason not to speed.123
358
Chain-collision cases and many others attest to the
foreseeability of a billiard ball effect when powerful forces
operating at great speed strike objects. It is certainly not
unforeseeable that the first object struck is sometimes propelled
into another. The billiard ball effect is more dramatic or bizarre if a
train strikes a horse which is then propelled through the air until
it strikes a person, but the general kind of harm from the same
kinds of forces is entirely foreseeable even if the details are not. So
here again a rule of law against liability is inappropriate. Equally,
when a large ship is allowed to break loose from its moorings in a
fast-running river, a variety of harms associated with such a large
force can be classed together, so that even if no one would have
considered that a loose ship might cause upstream flooding
because it could crash into a bridge and dam the river, such harm
is nevertheless closely associated with the foreseeable forces—
ships and heavy waters—so that scope of liability is again an
appropriate question for the trier of fact and not to be precluded by
a rule of law.
Where manner of harm is integral part of the risk. In contrast to
the case of many diverse risks that might result from large forces,
defendants sometimes create narrow risks that can foreseeably
occur in a limited number of ways. If liability is to be limited to the
risks the defendant unreasonably created, in such a case the
defendant would not be liable when the injury comes about in an
unforeseeable way. In the Derdiarian case,124 the defendant posted
the plaintiff in a position of danger from oncoming traffic. The
plaintiff was struck by an oncoming car. Such an injury was
foreseeable, even though it was not foreseeable that the driver
would lose control because he had a seizure. The details, the
manner of occurrence, did not matter in that case. But if the
plaintiff had been struck by a falling aircraft, the manner of
occurrence would have been very important indeed. The defendant
created a risk of injury from surface traffic only. Posting the
plaintiff at a different location would not have created any
predictable risk of aircraft injury. Most often courts can rightly
ignore the details about the manner of injury, because the
defendant’s negligence is broad enough to cover a variety of
sequences, motives and events. However, the problem is not
resolvable by a rule of law. If the facts of a particular case show
that the risk of harm was limited to a very specific kind of accident,
the manner in which harm was inflicted will be relevant.
Whether the risk negligently created by the defendant is a
narrow one and focused on a particular manner of occurrence
requires adjudication rather than rules. In one case,125 the plaintiff
and others were working around a vat of molten liquid at 800 &
deg; centigrade. A worker knocked a cover into the vat, risking the
possibility of a splash of molten metal on the plaintiff. That did not
happen, but a few moments later, the vat cover, then immersed in
the liquid, underwent a chemical change as a result of the intense
heat. The chemical change produced a drop of water, which
immediately turned to steam and caused an eruption of the molten
liquid. The molten liquid struck and injured the plaintiff. The
chemical reaction had been completely unknown up until that
time, so the eruption by this means was entirely unforeseeable.
As a matter of argumentation, it always serves the defendant to
describe the risk as precisely as possible and the plaintiff to
describe it as abstractly as possible. The plaintiff can argue that
eruption of the molten metal was foreseeable; it was the risk the
defendant created. Such an abstract description of the risk includes
eruption from chemical reactions as well as from mechanical action
of the lid. If accepted, this
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description of the risk would show proximate cause. The

defendant’s technique is to characterize the risk at a lower level of
abstraction, as a risk of splashing, which implies that the risk was
only a risk of mechanical action of the lid’s striking the metal, not a
risk of chemical reaction at all. If this description of the risk is
accepted, then the injury suffered was outside the risk, and thus
outside the scope of defendant’s liability.
It is not usually possible to say that only one description of the
risk is the right one, so the question calls for judgment. Although
that judgment is ordinarily left to the jury, sometimes judges feel
that the matter is too clear for debate. In the case of the lid falling
into the vat of molten metal, the court thought the risk of eruption
from a totally unforeseeable chemical change was not anything like
the known risk of mechanical action that was risked by knocking
the lid into the vat. So, as a matter of law, the plaintiff could not
prevail. This result seems understandable when the only
foreseeable risk is specifically related to a particular mechanism
and that mechanism is not known to create unpredictable results.
Intervening Act Cases
Conflict between intervening act rules and manner of injury
rules. Although the courts have often shown that liability is not to
be avoided merely because the defendant could not reasonably
have foreseen the manner in which injury comes about, they have
also said that the defendant will escape liability if the injury comes
about through an unforeseeable intervening cause. The two
statements seem to be in conflict. If courts relieve the defendant of
liability for foreseeable types of harm merely because he could not
reasonably have foreseen that the harm would be triggered by an
intervening actor, they are in fact saying that the manner of harm
(by way of an intervening act) must be foreseeable.
Resolving the conflict. Two approaches help harmonize the
manner-of-harm rules with the tendency to focus on intervening
causes. First, courts may hold, with the Second Restatement,126
that intervening causes are not superseding causes if the
defendant should have foreseen and avoided the general type of
harm that resulted, even though the intervening causes were
themselves unforeseeable. Second, courts may declare that an
intervening cause is foreseeable if it represents a general type of
foreseeable intervention, even though it could not have been
specifically anticipated.
Johnson v. Kosmos Portland Cement Co.127 is a striking and
well-known example of the first approach. The defendants
negligently failed to clean the hold of a barge to eliminate the
possibility of gases accumulating there from the residue of
petroleum cargoes. Accumulated gases could explode if an
acetylene torch were used or a match inadvertently lit. Neither of
these events occurred but lightning struck the barge instead. That
caused an explosion of the gases and killed two men. Considering
the lightning strike to be an unforeseeable intervening cause, the
court nevertheless held that the defendant could appropriately be
held responsible because the result or type of harm that occurred—
explosion and death or injury by explosion—was foreseeable and
that foreseeability of the general type of harm or result was
enough.
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The second approach can also be illustrated by the Johnson

facts. Although it might not be foreseeable that lightning would
strike the barge and ignite the gases, it was foreseeable that some
intervening incendiary force could ignite them. Lightning is merely
a particular instance of incendiary forces that could do so. It is
enough that the defendant should recognize danger from a set or
category of forces to which lightning belongs, without identifying
all the possible forces in the set. If the defendant should have
foreseen dangers from one of the forces in the category or from the
same general kinds of forces, the liability is appropriate even if the
particular intervening cause was not foreseeable.128
Courts sometimes use short phrases to express ideas about
“proximate cause.” They may say or imply that a cause of harm is
not “proximate” if it is insignificant, remote, or logically unrelated
to the harm that follows. These phrases point in the right direction,
but they are incomplete. The word proximate means near or next or
most immediate, and taken literally it suggests that only the most
immediate trigger of harm can be the proximate cause. That
simply is not the law. As pointed out above, several tortfeasors may
all be proximate causes of a single harm;129 the first tortfeasor in a
sequence of events as well as the last is often a legally responsible
cause. And the defendant’s misconduct is not too remote for
liability merely because time130 or distance131 separates the
defendant’s act from the plaintiff’s harm. A manufacturer whose
negligent construction leads to the explosion of a space ship is no
doubt a “proximate cause” of the resulting death and destruction
even if the explosion occurs millions of miles away. A doctor who
negligently withdraws a psychotic patient’s medication may be
liable for the patient’s murderous acts months later.132 Nor is the
defendant’s negligent conduct legally insignificant merely because
it is not very bad. In countless cases, defendants are held
responsible for injuries inflicted in a moment’s inattentiveness at
the wheel of a car. The test, once again, turns on some version of
reasonable foreseeability, not on mechanics.
Physical distance or the passage of time between the
defendant’s conduct and the ensuing injury is not, as such,
determinative, but may be relevant in several specific ways. For
example, in emotional harm claims based upon injury to another
person, courts frequently require the plaintiff to be nearby and to
witness the injury before the plaintiff can recover for emotional
distress.133 Also, distance between tortious conduct and injury may
tend to prove that the injury was not foreseeable where the force
negligently launched by the defendant should be foreseen to have
only a limited geographical potential for harm, for example, where
the defendant negligently trips one person whose fall triggers an
unforeseeable series of events that causes injury to another person
far away.134 Distance or the passage of time may be a surrogate or
shorthand
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expression referring to some other rule such as termination of

the risk.135 For example, where the plaintiff trips over a piece of
equipment brought to an accident scene by an investigator hours
after the defendant’s negligence caused the accident, the court may
stress the passage of time as tending to prove that the effects of the
defendant’s negligence had “come to rest.”136
Sometimes judges characterize the foreseeable geographical
zone of risk narrowly, thus excluding liability for distant injuries
even when forces launched by the defendant have a known
capacity for distant harm. Yet even here, the court that mentions
distance may be more influenced by completely different factors.
Cases in which a motorist strikes a utility pole, thereby causing a
power outage at the plaintiff’s home or business with resulting
physical harm, illustrate narrow conceptions of foreseeability in
which distance plays some part, although probably a minor one. In
an Indiana case,137 a motorist negligently collided with utility pole
causing power outage in the plaintiff’s plant two miles away. The
court said that the zone of foreseeable danger in an automobile
accident “encompasses the area immediately surrounding the
accident scene. This includes those areas which are unsafe because
of downed power lines or the property which may have been
directly damaged by an electric utility pole falling upon it,” but not
a power loss miles away. However, the court seemed less
influenced by distance than by the expressed belief that the
plaintiff was in a better position to protect against the risk by
having back-up power supplies for its business.138
C. INTERVENING ACTS OR FORCES
General rule. If an intervening and unforeseeable intentional
harm or criminal act triggers the injury to the plaintiff, the
criminal act is ordinarily called a superseding cause, with the
result that the defendant who negligently creates the opportunity
for such acts escapes liability.139
As in other superseding cause cases,140 the real reason to
relieve the defendant of liability is not merely that a new cause has
intervened but rather that the risk represented by the intentional
or criminal act is not one that the defendant negligently created.
Suppose the lessor of an automobile would be negligent if it failed
to check the driving records of a prospective lessee and that it in
fact leases a car to A without checking his records. A properly loans
the car to B who improperly loans it to C, who has a bad record for
driving while intoxicated and who injures the plaintiff by his
intoxicated driving of the leased car. Courts find it very easy to say
that C’s criminal act is a
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superseding cause and that the lessor is not liable,141 but the
result is more simply understood as a product of the general rule
that the defendant is liable only for injuries that were within the
scope of the risk he negligently created. The lessor’s failure to
inquire of A’s driving record was negligent because that failure ran
the risk that A would prove to be a dangerous driver; it was not
negligent at all about the danger that C, of whom the lessor knew
nothing, would drive badly. If the harm caused by an intervening
actor’s criminal act is within the risk negligently created by the
defendant, foreseeability of the criminal act itself seems
unimportant.142
The backside of the general rule that insulates the defendant
from liability in cases of unforeseeable intervening criminal acts is
that if a criminal or intentional intervening act is foreseeable,143 or
is part of the original risk negligently created by the defendant in
the first place,144 then the harm is not outside the scope of the
defendant’s liability—or as most courts still put it, the criminal or
intentional act is not a superseding cause.145 The rule has been
applied in civil rights claims as well as in common law tort
claims.146
Older authorities: unforeseeability as a matter of law. In an
earlier era, courts tended to hold that intervening criminal acts
were unforeseeable as a matter of law. For example, the defendant
negligently spills a tank car full of gasoline, into which the
intervening actor throws a lighted match, injuring the plaintiff in
the explosion.147 Or the defendant leaves unguarded a dangerous
excavation into which the intervening actor pushes the plaintiff.148
Or the defendant negligently leaves dynamite where boys might
find and steal it. Boys do so; another boy is killed in the explosion
that follows.149
The earlier cases were prone to declare, contrary to human
experience, that criminal acts simply could not be anticipated, or at
least that the defendant was under no obligation to anticipate
them. Some contemporary cases come close to saying the same
thing.150 This attitude explains why courts at one time held that
negligent sellers of alcohol to intoxicated drivers were never
responsible; in spite of the fact that there can be many proximate
causes, they said it was the drinker, not the seller, who was “the”
proximate cause.151 In the same way, no matter what a defendant
did to drive someone to suicide, suicide was the responsibility of
the victim, not the defendant.152 In the most extreme form, the
idea was that the last human wrongdoer or last culpable will
counts as the “sole proximate cause,”153 so that intervening
criminal acts would always relieve the defendant of liability.
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Rejection of the older rule: jury questions. “This archaic doctrine

has been rejected everywhere.”154 Today’s courts usually recognize
that foreseeability, in the nature of things, is fact-specific, so they
now often permit juries to find that a criminal act was foreseeable
and not a superseding cause.155 There are, of course, cases that
declare a particular criminal act in a particular case to have been
unforeseeable as a matter of law.156 Some of these matter-of-law
holdings seem to be out of step and dubious at best,157 but in any
event courts have increasingly recognized that the question is not
to be decided categorically but on the facts of each case.158
In one group of cases, a driver leaves keys in the ignition of the
car. A thief steals the car and causes injury in making his escape.
Courts have had difficulty with this one. A number of older cases
held as a matter of law that the driver’s act of leaving the key
available was not a proximate cause of the harm because theft was
not foreseeable, or that if it was, then negligence of the thief was
not.159 But circumstances vary and times change. Courts have
sometimes had to reject the categorical rule against responsibility
and to say that in particular cases the car theft and the thief’s
negligence were both all too foreseeable in particular cases, or that
a jury could so find.160 In general, the courts have moved away
from rule-of-law decisions about broad categories of cases like these
and have examined the facts of particular cases to determine
whether intervening criminal acts are foreseeable even when the
issue is conceived as one of foreseeability on the duty issue rather
than foreseeability on the scope of liability or proximate cause
issue.161
Unforeseeable intervening act causing a foreseeable result. Even
if the intervening cause is not foreseeable, the intervening actor
may trigger the very kind of harm the defendant’s negligence
risked. In that case, the general rule of foreseeability would seem
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to call for liability.162 In a number of cases the defendant has

negligently created a danger of fire, or a danger that if fire
occurred, victims would not be able to escape promptly. Danger of
fire is what makes the defendant negligent. If fire does occur and
people are injured by it, courts appropriately hold the defendant
liable. His liability in such a case is coextensive with negligence
because foreseeability of fire is an ingredient in his negligence.
Even if arson is not itself foreseeable, injury from fire is, and that
should be enough. Some of the arson cases seem to support this
view,163 and others are at least are consistent with it in subjecting
the defendant to liability.164 However, the principle supporting
liability for foreseeable types of harms resulting from foreseeable
forces seems to have been rejected by the California Supreme
Court, where a defendant who failed to protect small children from
the danger of vehicles running onto its inadequately guarded
playground escaped liability when the vehicle that killed the
children was driven onto the playground intentionally.165
No-duty rules. The problem of intervening criminal acts is
largely a problem of duty, not scope of liability. Courts have said in
many contemporary cases that in the absence of a special
relationship, the defendant simply owes no duty to take affirmative
action to protect the plaintiff from a third person.166 If a driver is
murdered because Firestone negligently made defective tires that
tore up on the road and left the driver alone, stranded, and
susceptible to attack, Firestone might nevertheless escape liability
because its duty to make safe tires was not a duty to do so for
protection against murderers.167 In the older cases, courts enforced
that idea by asserting that, as a matter of law, intervening
criminal conduct was not foreseeable. Because intervening criminal
acts are quite often entirely foreseeable, that assertion seems
strange, but it can now be understood as less about foreseeability
itself than about the courts’ notion about the appropriate scope of
duty, which may turn largely on other matters altogether. Today,
once courts decide that a defendant should use reasonable care to
protect the plaintiff from crimes, foreseeability of crime has become
an issue of fact, not a rule of law. Thus, if a duty of care is owed,
taverns providing the alcohol that fuels criminal automobile
driving, institutions releasing dangerous persons into the
community, landlords leaving locks in disrepair, schools failing to
protect students from attackers, and many others are now
potentially subject to liability for harmful criminal behavior. But
there is no blanket duty any more than there is a blanket
immunity. Consequently, such cases must be considered in
connection with the rules limiting duty.168
Forces of nature play a role in many negligence cases.
Unforeseeable natural forces are still sometimes called acts of
God.169 Courts often speak of natural forces as if special
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rules are needed in those cases, but with the exception of

certain statutory claims and a few common law cases now of little
significance, the decisions comport with the general rules of
negligence and proximate cause. It is thus entirely possible to drop
terms like “act of God” altogether.170 And again with one exception,
natural forces almost never create issues of scope of liability as
distinct from issues of factual cause.171
First, the defendant who acts in the presence of a natural force
such as a high wind cannot plausibly claim that the wind is an
intervening cause at all; it does not intervene if it is already in
operation when the defendant acts. Second, the defendant who can
reasonably be expected to foresee and act upon the danger of a
natural force is negligent if he fails to take that force into
account.172 Third, the defendant who cannot reasonably be
expected to foresee that a dangerous natural force will appear is
usually simply not negligent at all, because no harm of any kind is
a foreseeable result of his acts. If no flood is foreseeable, the
defendant is not negligent in failing to sandbag the river.173 Such a
result has nothing whatever to do with scope of liability or
proximate cause, which is an issue that can only arise when the
defendant is negligent and his negligence can be identified as
creating specified risks.
General Rule
Although older cases sometimes took a narrower view, the
defendant’s responsibility for negligence today is not ordinarily
superseded by an intervening cause if he could foresee such an
intervening cause or a similar one.174 Because precise
foreseeability is not the test, and because negligence of others is
often readily foreseeable, intervening negligent acts can seldom
properly count as superseding causes. That is to say that in many
cases, the scope of the risk created by the defendant encompasses
negligent acts of others that subsequently cause harm, and his
scope of liability thus includes harms so caused.175 The rule is no
different when the intervening actor is guilty of negligence per se
in violating a statute.176 The result is that, for the great majority of
cases, the negligent original defendant and the negligent
intervening actor are both liable for the harm they have together
inflicted, under the rules for joint and several liability or
comparative fault.
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When Intervening Act Is Within the Risk Defendant

Negligently Created
Principle. The most obvious case for rejecting a superseding
cause argument is one in which the trier’s finding of negligence
logically includes a finding that an intervening cause was
foreseeable. Put otherwise, “intervening causes which lie within
the scope of the foreseeable risk … are not superseding causes
which relieve the initial tortfeasor from liability.”177
Applications: injury in minimizing or escaping risk defendant
created. When the defendant creates a risk of harm to the plaintiff
or others, the risk often includes a risk of injury to those
attempting to escape or minimize harm. Consequently, the plaintiff
who escapes injury from the defendant’s negligently driven truck
may recover for injuries incurred in the attempt to escape or to
minimize risks to others. For instance, if her car is forced off the
road by a negligent defendant, she can recover from that defendant
for injury suffered when she is struck by another motorist while
trying to minimize risks by flagging other motorists.178 In such
cases, the analogy to the rescue doctrine is sufficiently clear.179
Thus the defendant who negligently causes a collision may be
liable not only to those immediately injured, but also to a rescuer
who is injured by a second collision in the course of a rescue
attempt.180
Applications: foreseeable intervening natural forces. The
intervention of natural forces is the simplest illustration.
Defendant starts a fire in his field. The wind rises and spreads the
fire to plaintiff’s house. If defendant was negligent at all, it must
have been because he could foresee the spread of the fire. A jury’s
finding that he is negligent must entail a finding that the wind and
the spread of fire was foreseeable. That being so, the intervention
of the wind is of no consequence whatever; defendant is liable for
harm done by the wind-spread fire.181 Similarly, if a physician fails
to warn a patient that his disease is contagious, the doctor can
foresee that the disease may spread to others, and cannot avoid
liability to those others on the ground that the intervening growth
of virus or bacteria is a superseding cause.182
Applications: static conditions and intervening acts. A defendant
who creates or maintains any kind of static condition is simply not
negligent unless he can foresee some intervening act or force that
would tend to cause injury. A slippery floor in an empty world
presents no risks at all; only if the defendant can foresee that
someone may attempt to walk on the floor will he be negligent.
Consequently, if the defendant negligently maintains a slippery
floor, a dangerous step, an unguarded shaft or excavation, or an
obstruction that blocks vision at an intersection, he cannot
reasonably argue that the victim’s own act was an unforeseeable
superseding cause.183 The victim
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might be chargeable with contributory negligence in some cases

and might for that reason find her damages reduced, but the
negligent defendant will not be able to invoke superseding cause
rules to escape liability altogether,184 because the harm is within
the scope of the risk negligently created by the defendant.
It is of course possible that the defendant, foreseeing no harm,
is not negligent at all and will escape liability for that reason. In
addition, a third person may sometimes substantially enhance the
risk of harm from a static condition. If so, and if such enhanced
risk is not foreseeable and not part of the original risk, the
enhanced risk may count as a superseding cause. If enhancement
of the risk by third persons is itself foreseeable or is the very
danger created by the defendant in the first place, the defendant
remains liable.185 For instance, if the defendant negligently leaves
a hole in the roadway and the plaintiff’s car, striking it, is
immobilized, it is foreseeable that the plaintiff may be struck by
another motorist, and the defendant cannot avoid liability on the
ground that the motorist is a superseding cause.186
Applications: intervening active negligence; negligent
entrustment. The very reason for holding a defendant responsible
for entrusting a vehicle to an incompetent driver or a gun to a
mentally disturbed person is that the driver may drive dangerously
or the disturbed person may fire upon others. If the driver causes
an injury without driving dangerously, the entrusting defendant
would not be responsible, since the risk he unreasonably created
was the risk of dangerous driving, not the risk of safe driving.187
On the other hand, if the driver’s dangerous management of the
vehicle causes harm, the defendant who entrusted the vehicle to a
foreseeably dangerous driver cannot escape liability on the ground
that the driver’s negligence intervened to cause the harm, because
the driver’s negligence is the very danger he should have
foreseen.188
The same is true when it comes to entrustment of a dangerous
weapon.189 And negligently permitting an unsafe user to have
access to a dangerous instrumentality is obviously just a variation
on the same point.190 In that case, too, the defendant’s negligence
consists in creating the foreseeable danger that another person will
intervene to misuse the instrumentality in a dangerous way.191
Applications: intervening active negligence; high-speed police
chases. Contemporary cases involving high-speed police chases also
illustrate the principle that when the
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intervening acts are themselves within the risk created by the

defendant, they are not superseding causes. Police in pursuit of a
law violator may enjoy an immunity from liability or they may not
be negligent at all.192 But if they have no immunity and they are in
fact negligent, the risk they create is that some person will be
harmed by the negligent high-speed driving of the police or their
quarry. If the quarry collides with bystanders, the quarry’s
negligence cannot logically count as a superseding cause, since, by
hypothesis, the police, if negligent at all, must have been negligent
because they could foresee that the high-speed chase might injure
someone. The quarry’s negligence was not only foreseeable, but
was the very risk that made the officers negligent. Most courts
therefore hold that when injury occurs before the chase ends, it is
for the jury to determine whether the quarry’s negligence is a
superseding cause.193
Other applications. In many other cases, the finding of
negligence implies that an intervening act is foreseeable and thus
eliminates the superseding cause argument. Suppose the state
builds a road with a sharp and deep drop at the edge. If this is
negligent, it must be because a driver may foreseeably go off the
road and lose control with ensuing harm. To find negligence in
such a case is to find that a negligent driver’s “intervening” act is
foreseeable, so once again, that driver’s negligence is not a
superseding cause.194 Or a defendant leaves a large industrial
cable spool weighing half a ton near a school yard. Children find it,
try to ride it and are crushed when they fall under it. The
children’s play with the spool is not a superseding cause.195 Indeed,
if their play and danger is not foreseeable, it is hard to imagine in
what way the defendant was negligent in leaving the spool
available.
Similarly, when someone is injured by a product whose
manufacturer negligently omitted safety devices, the manufacturer
cannot automatically escape liability on the ground that the
purchaser’s negligence in using the product without the safety
device was a superseding cause.196 If you are negligent in failing to
provide safety devices, you must necessarily foresee that injury
could result; otherwise, no safety device would be needed, and you
would not be negligent at all.
When Intervening Act Is Foreseeable—Aggravated and
Second Injuries
Intervening negligent act foreseeable. In many other cases, the
intervening negligence does not seem to be so much a part of the
original risk but it is deemed foreseeable or at least arguable
enough to permit a jury to so find. Under the approaches already
discussed, the defendant today does not usually escape liability
merely because he could not foresee the specific manner of injury
or the specific kind of intervening act that occurred.197 Juries are
allowed to find that intervening causes are foreseeable and thus to
hold the original actor responsible even when the intervening act
occurs much
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later in time.198 The original actor may be liable, for example,

not only for the harm he directly causes, but also for the additional
harm inflicted by negligent transportation to the hospital for
treatment of the first injury199 or by negligent medical treatment
of that injury.200 Even a later injury, resulting in part because the
plaintiff is still operating under a residual disability from the first
injury, may be within the scope of the original risk.201 In such
cases, the jury may find that the second injury was foreseeable,
and the defendant who caused the original harm may be liable.
Injury Outside the Risk
Intervening negligent act as superseding cause. An intervening
act is regarded as a superseding cause when it is outside the scope
of the risk the defendant negligently created. This idea is usually
expressed in shorthand by saying that if the intervening act is
itself unforeseeable, then it may become a superseding cause.202
The shorthand is misleading when the defendant negligently
creates a broad risk of harm that may come about through a
variety of means. In those cases, foreseeability of the precise
intervening act itself is not important.203 On the other hand, when
the defendant creates a narrow risk likely to come about only
through a particular kind of intervening act or in a particular
sequence, injury that comes about through any other means is not
within the risk. These are the unforeseeable intervening act cases,
and in these cases liability is inappropriate whether or not the
superseding cause language is used. Foreseeability is ordinarily a
jury question where reasonable people could differ.204 Although
that proposition is generally accepted, courts often simply declare
for themselves—“as a matter of law,” as the saying goes—that
some intervening act is unforeseeable, thus terminating the
plaintiff’s claim.205
Examples. An example is Sheehan v. City of New York.206 In
that case, a bus stopped at an intersection to permit passengers to
board or alight, but, in violation of traffic regulations, did not pull
over to the curb. While the bus was stopped, it was struck from
behind by a sanitation truck in which the brakes had failed. A
passenger on the bus was injured. Although the bus driver, by
stopping at the intersection in a lane of traffic and
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not at the curb, created risks of injury to passengers who might

be boarding or alighting, he did not create any special risk to
passengers on board the bus; vehicles must frequently stop in
traffic lanes, and especially at intersections. The general risk rule
would exclude liability. The result can also be expressed by saying
that the operation of the sanitation truck was a superseding cause.
In a South Carolina case,207 a signal at a railroad crossing was
out of order, constantly signaling the imminent arrival of a train
that was not approaching. The defendant, responsible for
maintaining the signal, was negligent in allowing this condition to
persist because it was foreseeable that some individuals would
learn of the malfunction and ignore the signal at a time when a
train really was approaching. That did not happen. Instead, the
plaintiff, a driver who did not know of the malfunction, came to a
stop at the crossing. The driver behind her failed to stop and the
plaintiff was seriously injured. As the court saw it, nothing like
this was within the scope of the risk, which was focused on one
particular kind of event, a driver’s injury from a train resulting
because he discounted the signal. Given that view, the defendant
should not be liable and that was the court’s holding. However, the
outcome was expressed, as it usually is, as a product of the
superseding cause rules: the second driver’s negligence was a
superseding cause.
As these cases show, when the superseding cause determination
is properly used, it is merely a specific instance of, and a way of
talking about, the fundamental rule that liability is limited to the
risks that the defendant has negligently imposed. The language of
superseding cause itself adds nothing but a layer of language likely
to get in the way of clear analysis, and consequently some courts
have dropped the superseding cause language.208
Termination of the Risk
The same fundamental scope-of-risk idea applies when the
defendant creates a risk from particular forces and those forces
have been spent, so that lawyers can conceptualize the case as a
risk that has “terminated.” But this, too, looks like an indirect but
potentially misleading way of assessing the scope of the risk the
defendant created.
For example, suppose that the defendant negligently drives into
the plaintiff’s vehicle, leaving it disabled in the eastbound lane of
traffic. One risk of the defendant’s negligence—impact with the
plaintiff’s car—has actually eventuated. But other risks remain. In
particular, the disabled car might be in danger of being struck from
behind by a car traveling in the same direction. If that happens,
the defendant will not escape liability merely because some of the
injury he risked has already come about.209 But if the plaintiff’s
disabled car is struck by a falling airplane, or a car proceeding in
the opposite direction that crosses the center line to strike the
plaintiff’s car, the injury resulting from that impact is
unforeseeable and not one of the risks the defendant negligently
created. In that case, the plaintiff’s stopped car is no more at risk
from a sudden chance movement of an oncoming car than if the
plaintiff had been driving her car in the same lane, and liability is
inappropriate.210 Similarly, as Judge Magruder
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suggested, once the impact is over and the plaintiff drives on

down the highway, it is possible to think of the risk as being
terminated and the situation stabilized.211
The terminology of risk-termination, like a good deal of
terminology in so-called proximate cause cases, is superfluous. The
underlying idea is that the injury that occurred—a second impact
not made more likely by the first—is outside the risk negligently
created by the defendant. This is not a mechanical rule. In some
cases, the first impact very definitely does create risks of further
injuries, and the tortfeasor is liable for them if they occur. For
example, a tortfeasor may be liable for injuries inflicted by a health
care provider in treating the first injury and also for second
injuries resulting because of weakness caused by the first
injury.212
Courts today agree that scope of liability is to be determined on
a case-by-case basis, that it is a jury question in all but the most
extreme cases, and that it turns on foreseeability in some form. Yet
at times courts have disregarded all three of these rules in several
kinds of cases, excluding liability for certain categories of injuries
as a matter of law. The anomaly is gradually being resolved as
courts come to treat the problems raised in these cases as duty
problems rather than scope of liability or proximate cause
problems.
(1) Alcohol providers. Courts once said that in the absence of a
statute specifically imposing tort liability, a bartender who
continues to serve alcohol to a minor or to an intoxicated drinker is
not liable to the drinker’s victims when he drunkenly runs down
innocent people, not even if the bartender knows the drinker will
drive. The drinker, not the seller of the alcohol, was regarded as
the sole proximate cause of the death or injury to others.213 This
could hardly be an application of the proximate cause rules as
understood in contemporary thought, since if any harm is
foreseeable it is intoxicated driving and its frequent and terrible
results. The rule also departed from the usual practice of
examining facts of each case to determine foreseeability. Instead,
courts made a categorical rule of non-liability for all alcohol
providers. To a substantial extent, these rules have changed as
courts have come to recognize that the issue is not one of scope of
liability or proximate cause at all, but one of duty.214 The
contemporary alcohol cases are considered further in a later
chapter.215
(2) Suicide/failure to protect the plaintiff from herself. Courts
also often hold that a person who committed suicide was the “sole
proximate cause” of his own death, and that a defendant whose
negligence led to the suicide is therefore categorically excused
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from any liability.216 Here again, the rule does not resemble the
usual scope of liability or proximate cause rule, since at least some
suicides would be the foreseeable result of the defendant’s
negligence, as for example, where the defendant provided heavy
doses of depressing drugs.217 Courts do apply an exception: the
negligent defendant would be liable for suicide if the defendant’s
negligence caused insanity in the victim, who then committed
suicide as a result of that insanity.218 Courts now recognize that at
least in some cases a person may have a duty to help prevent
suicide, as in the case of a hospital or jail with a known suicidal
patient or prisoners.219 So the most fundamental issue is one of
duty.220 This means that where a duty of care exists, the old
categorical rule against liability disappears and the courts consider
negligence and scope of liability (proximate cause) in the light of
the facts of the particular case.221 This shift does not mean that
liability is inevitable, even if negligence is proved. In some cases,
suicide is truly unforeseeable or outside the risk created by the
defendant,222 as in the case of a client who commits suicide
because his lawyer negligently lost a case.223 In addition, courts
may impose demanding rules of foreseeability. For example, in one
case, the defendant locksmith picked a trigger lock to make a gun
available for use by a person he knew to be a minor. The minor
used the gun to commit suicide. Instead of asking whether harm
from a gunshot was foreseeable, as it surely was, the court asked
whether suicide was foreseeable and found that it was not,
absolving the locksmith.224
A court may rest its conclusion on facts showing that time and
other actors intervened to break the causal chain between the
defendant’s negligence and the suicide. In another Texas case, the
defendant hospital and physician discharged a 21-year-old patient
from the emergency room after treating him for a failed suicide
attempt but without performing a comprehensive risk assessment
for suicide. The discharged patient committed suicide 33 hours
later. Reversing a jury verdict for the plaintiffs (decedent’s estate
and his parents), the court held that the suicide was “too
attenuated for proximate cause” because the evidence showed that
neither the decedent nor his family wanted him to be hospitalized
further; the evidence failed to show that hospitalization would
have prevented his suicide at a later time; and during the 33 hours
between discharge and his
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suicide he was watched “carefully” by his mother.225 Such

reasoning appears to blur the lines unnecessarily between factual
cause and scope of liability; if the decedent would have committed
suicide even if the defendants had not been negligent, then the
defendants’ negligence is simply not a but-for cause of the harm
and defendants should have prevailed on that ground.
(3) Emotional harm. Courts have long treated stand-alone
emotional harm claims quite differently from physical injury
claims.226 The difference has frequently been explained on the
grounds that emotional harm is not a “proximate” result of the
defendant’s negligence. It may be true that different rules of
liability ought to be employed when the plaintiff claims emotional
harm independent of physical injury, but it is most definitely not
true that there is anything unforeseeable about the emotional
harm of a mother who sees her child seriously and continuously
hurt by the defendant’s negligence. Nor could scope of liability or
proximate cause rules explain a categorical rule circumscribing
emotional harm recoveries. So the older proximate cause
explanations have been gradually giving way to the understanding
that if liability for emotional harm is to be limited, the limits turn
on issues of practicality, policy, and justice and not on bare
foreseeability alone. These rules, too, must be treated outside the
framework of scope of liability.227
(4) Economic harm. Stand-alone economic harm, like stand-
alone emotional harm, has often been subjected to special rules.228
For instance, the defendant might negligently cut off a supply of
electricity to a factory, with the result that workers there lose a
day’s wages while the electricity is restored.229 Courts frequently
conclude that negligence is no basis at all for recovery when the
plaintiff suffers such economic harm and no personal injury or
property damage. Sometimes they have used the language of
proximate cause—the injury is too remote or indirect. That is no
longer the usual explanation, nor should it be.230 Courts today
more commonly recognize that in many situations the defendant
owes no duty to use care to prevent pure economic harm, as
distinct from personal injury or property damage.231 The rule is
not universal, but where it applies it bars recovery for reasons
quite unrelated to foreseeability.
Plaintiff’s fault as superseding cause. When the defendant
negligently injures the plaintiff, the plaintiff’s own fault is
normally relevant only under the rules of contributory negligence
or comparative fault. In many instances, the plaintiff’s fault would
be ground for reducing the recovery of damages, but would not
exclude recovery altogether. On the other hand, some cases hold
that the plaintiff’s fault may sometimes count as a superseding
cause, or, as courts often say, the “sole proximate cause” of the
plaintiff’s own harm.232 If so, the plaintiff does not merely suffer a
reduction in damages
374
but is barred completely. Similarly, under the avoidable

consequences rules for minimizing damages, the plaintiff is
regarded as the “sole proximate cause” of damages suffered
because she failed to mitigate damages once injury occurred.233 As
to those damages, the plaintiff cannot recover at all.
Rejecting superseding cause analysis for plaintiff fault.
Although the abstract scope-of-risk test of superseding cause is the
same for both negligence of the defendant and the comparative
fault of the plaintiff,234 the superseding cause line of reasoning
must be accepted with caution. If it were widely applied, it would
undermine the comparative negligence system of fault allocation.
For this reason, a number of courts have rejected the possibility
that the plaintiff’s fault can ever be a superseding cause.235
Middle ground. If the rhetoric of “sole proximate cause” and
superseding cause is dropped, a middle ground becomes apparent.
In some cases, the defendant’s negligence simply does not create a
risk of the kind of harm that the plaintiff suffered. In such a case,
the important thing is not that the plaintiff is at fault, or that the
plaintiff’s fault was a superseding cause, but rather that the harm
was outside the scope of the defendant’s liability, or, to put it
differently, that the risk created by the defendant had terminated.
In Exxon v. Sofec,236 a tanker ship broke away from the
defendants’ moorings. The defendants may have been responsible.
The ship’s captain managed to get the breakaway tanker past a
number of perils and safely out to sea. Once he reached safety,
however, he neglected to get a fix on his position and he ran
aground. Exxon was denied a recovery against the defendants. The
Court reasoned that the captain’s negligence was a superseding
cause.
The superseding cause language might suggest heavy reliance
on the captain’s fault, and if that were the case, it would be
plausible to argue that the decision undermines the comparative
fault system.237 But as often is the case, the superseding cause
language appears to obscure the more fundamental point that the
harm that befell the tanker was simply not one of the risks of
negligently managed moorings.
The upshot is that if the harm done is outside the risk
negligently created by the defendant, then of course the defendant
is not to be held liable. On the other hand, if the
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court focuses on the plaintiff’s fault rather than the scope of the
risk, the case looks like one for comparative fault rules rather than
the Draconian “proximate cause” rules.238
In addition, there is one small class of cases in which the
defendant’s responsibility is to protect the plaintiff from his own
actions. If police officers, having an intoxicated person in custody,
haul him to the edge of town and deposit him on a dangerous
highway where he is struck by a car, they cannot defend a suit on
the ground that his intoxication was an intervening cause. To
countenance that argument “would be to negate the very duty
imposed on the police officers when they took [the plaintiffs] into
custody. It would be to march up the hill only to march down
again.”239
D. ALTERNATIVES
§ 15.20 Joint and Several Liability and
Comparative Fault
Scope of liability (proximate cause) rules allocate responsibility
among tortfeasors. In intervening cause cases, the all-or-nothing
rule is no longer the only method for allocating responsibility
among the various negligent actors. Another method already
discussed is to limit the duty of care owed by defendants in special
categories of cases.240 Even more flexibly, it is now possible and
even common to impose joint and several liability upon all the
actors in a sequence of wrongdoing that culminates in the
plaintiff’s harm.241 Modern procedures for contribution and
indemnity permit courts to allocate a portion of responsibility to
each of several defendants.242 With the advent of comparative
fault, responsibility can be allocated in different percentages to
each defendant. And, where joint and several liability is deemed
offensive, each defendant can be held liable for his share of the
total fault and no more.243
These modern procedures were not all widely available until the
latter half of the 20th century, some not until its last quarter. Now
that they are in place, they show intervening cause issues in a new
light. Before these procedures were available, a judge might
perceive that relatively little fault was attributable to A, while
much fault was attributable to B. Sometimes the only method for
obtaining some kind of rough justice as between A and B was to
invoke the all-or-nothing proximate cause rule, letting A go
without any liability and imposing all liability upon B. This result
was not necessarily justified, because, while it might achieve a
rough justice between A and B, it did so at the expense of the
innocent plaintiff. Such extremes are no longer necessary. A court
can now say, as courts often do, that both tortfeasor A and
tortfeasor B are proximate causes
376
and impose liability, either jointly and severally or according to

their comparative fault share.244
Something similar is true in those cases in which the defendant
argues that the plaintiff’s fault was a superseding cause, or the
“sole proximate cause,” of her own harm.245 In the days when
states almost always barred the plaintiff for even slight
contributory fault, it made little difference whether courts said the
plaintiff was guilty of contributory negligence or that her
negligence was the sole proximate cause. Either way, the plaintiff
would be barred. Now that comparative fault rules have been
adopted in most states, the plaintiff who is guilty of comparative
fault is not necessarily barred; she may simply find her damages
award against the defendant reduced to reflect her fault. Under
this system, courts will seldom be justified in resorting to all-or-
nothing proximate cause rules that would bar the plaintiff on the
ground that her fault was the sole proximate cause.246
Relying in part on the contemporary ability to allocate liability
among tortfeasors in proportion to their fault,247 several courts
have wholly or partly abolished the separate superseding cause
type of analysis but have retained the scope of liability or
proximate cause limitation based on foreseeability or scope of
risk.248 Short of that, a court may refuse to apply superseding
cause analysis in a particular case, partly because it could
undermine comparative-fault apportionment.249
Several lines of thought lie behind this movement. The
narrowest is that superseding cause analysis was developed to
assist plaintiffs whose fault in the old regime of contributory
negligence would have completely barred recovery, and that with
the coming of comparative fault allocations, this is no longer
necessary. This would lead courts to hold that the plaintiff’s own
fault cannot be a superseding cause.250 However,
377
the courts have not stopped with such a limited holding.

Recognizing that the underlying issue is scope of the risk and that
a separate superseding cause analysis pursues a foreseeability
determination already made in assessing the scope of the risk the
defendant negligently created, courts have concluded that
instructions about superseding cause are both duplicative and
confusing.251 Consequently, the issue in intervening cause cases,
like the issue in others involving the scope of the defendant’s
liability, is whether the general type of harm inflicted was
foreseeable and thus within the scope of risks created by the
defendant’s negligent conduct.
________________________________
2 Id. cmt. a.
3 Id. Courts have recognized that shorthand expressions referring
to the “proximate cause defense” are not to be taken literally. See Korando
v. Uniroyal Goodrich Tire Co., 159 Ill.2d 335, 637 N.E.2d 1020, 202 Ill.Dec.
284 (1994).
4 The Second Restatement substituted the term “legal cause”, but
that usage never met with wide acceptance in courts. See Restatement
Third of Torts (Liability for Physical and Emotional Harm) Chapter 6,
Special Note on Proximate Cause (2010) (describing the history of the
terminology).
5 Chapter 14.
6 A number of courts say that “proximate cause” consists of two
elements, factual cause and foreseeability (or scope of risk, or something
similar). We avoid this usage, while recognizing that others may not. See §
15.3.
7 See, e.g., Pittway Corp. v. Collins, 409 Md. 218, 973 A.2d 771
(2009) (“Legal causation is a policy-oriented doctrine designed to be a
method for limiting liability after cause-in-fact has been established.”).
Other rules, those limiting the duty owed by defendants, also seek to
impose limits on liability for conduct that would otherwise be considered
negligent. Scope of liability or proximate cause rules exclude liability for
damages, either all damages suffered or damages for particular items of
loss. Thus, where the plaintiff need not prove damages, as in the case of
intentional trespassory torts, scope of liability limitations may not apply,
or not apply in the same way. See § 4.18.
8 Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009);
29 (2010).
9 See, e.g., Goldberg v. Florida Power & Light Co., 899 So.2d 1105
(Fla. 2005) (“The law does not impose liability for freak injuries that were
utterly unpredictable in light of human experience.”) (quoting McCain v.
Florida Power Corp., 593 So.2d 500 (Fla. 1992)).
10 See § 15.2.
11 See Berte v. Bode, 692 N.W.2d 368 (Iowa 2005); Puckett v. Mt.
Carmel Regional Medical Center, 290 Kan. 406, 228 P.3d 1048 (2010).
12 Ehrgott v. City of N.Y., 96 N.Y. 264 (1884); Travis v. City of
Mesquite, 830 S.W.2d 94 (Tex. 1992). Although the point is well-settled
and logically inescapable, courts often speak of “the” proximate cause,
presumably without meaning to attack the settled rule. Use of the phrase
“sole proximate cause” perhaps implies that there can be only one
proximate cause of harm; this incorrect implication is one reason the Third
Restatement suggests that “sole proximate cause” is “a term best avoided.”
34, cmt. f (2010).
13 See Pearson v. Tippmann Pneumatics, Inc., 281 Ga. 740, 642
S.E.2d 691 (2007); Holmes v. Levine, 273 Va. 150, 639 S.E.2d 235 (2007).
14 See §§ 15.16 & 15.20.
15 See § 15.21 on some courts’ abolition of the superseding cause
approach.
16 See Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 59
A.L.R. 1253 (1928) (Andrews, J., dissenting) (“What we do mean by the
word proximate is that, because of convenience, of public policy, of a rough
sense of justice, the law arbitrarily declines to trace a series of events
beyond a certain point. This is not logic. It is practical politics.”); see also
Staelens v. Dobert, 318 F.3d 77 (1st Cir. 2003) (without proximate cause
limits, “liability would extend endlessly, one harm leading inevitably to
others.”); Poskus v. Lombardo’s of Randolph, Inc., 670 N.E.2d 383, 423
Mass. 637 (1996) (“There must be limits to the scope or definition of
reasonable foreseeability based on considerations of policy and pragmatic
judgment.”). These cases notwithstanding, policy limitations on liability
that are independent of foreseeability are now usually imposed on the
ground that the defendant’s duty was limited, not on proximate cause
grounds.
17 See Zaza v. Marquess and Nell, Inc., 144 N.J. 34, 675 A.2d 620
(1996) (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 222 A.2d 513 (1966))
(“[Proximate cause doctrine is] an instrument of fairness and policy,
although the conclusion is frequently expressed in the confusing language
of causation, foreseeability and natural and probable consequences The
determination of proximate cause by a court is to be based upon mixed
considerations of logic, common sense, justice, policy and precedent.”).
19 Cf. Lodge v. Arett Sales Corp., 246 Conn. 563, 717 A.2d 215 (1988)
(fire engine on way to deal with what turned out to be a false alarm
crashed when brakes failed; company that negligently sent the alarm is
not liable for the injuries incurred; they were not among the risks
generated by a false alarm).
20 Proximate cause rules or some close analog have been applied, for
example, in some strict liability cases, e.g., Fandrey ex rel. Connell v.
American Family Mut. Ins. Co., 272 Wis.2d 46, 680 N.W.2d 345 (2004),
and in civil rights cases, see Powers v. Hamilton Public Defenders Com’n,
501 F.3d 592 (6th Cir. 2007). Notably, however, scope of risk or proximate
cause rules are generally inapplicable in cases where the defendant acted
intentionally or recklessly. See Restatement Third of Torts (Liability for
21 See Mark F. Grady, Proximate Cause and the Law of Negligence,
69 Iowa L. Rev. 363 (1984).
22 See § 15.5.
23 Rascher v. Friend, 279 Va. 370, 689 S.E.2d 661 (2010) (“[W]hether
an act was a proximate cause of an event is best determined by a jury.
This is so simply because the particular facts of each case are critical to
that determination.”); see also, e.g., Anselmo v. Tuck, 325 Ark. 211, 924
S.W.2d 798 (1996); Cramer v. Slater, 146 Idaho 868, 204 P.3d 508 (2009);
Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367 (Minn. 2008); Foote v.
Simek, 139 P.3d 455 (Wyo. 2006). A few states insist that proximate cause
is a question of law for the court. See, e.g., Kim v. Budget Rent A Car
Systems, Inc., 143 Wash. 2d 190, 15 P.3d 1283 (2001).
24 E.g., Virden v. Betts and Beer Const. Co., 656 N.W.2d 805 (Iowa
2003).
25 E.g., Pittway Corp. v. Collins, 409 Md. 218, 973 A.2d 771 (2009).
This is the meaning of the statement that a cause of harm must lead in
continuous or natural sequence to the harm and in addition must be a
cause without which the injury would not have occurred. See Addy v.
Jenkins, 969 A.2d 935 (Me. 2009); Anderson v. Nebraska Dep’t of Social
Services, 248 Neb. 651, 538 N.W.2d 732 (1995); Delbrel v. Doenges Bros.
Ford, Inc., 913 P.2d 1318 (Okla. 1996).
26 E.g., Cramer v. Slater, 146 Idaho 868, 204 P.3d 508 (2009)
(“Proximate cause consists of actual cause and true proximate cause,
which is also referred to as legal cause.”); City of Chicago v. Berretta
U.S.A. Corp., 213 Ill.3d 351, 290 Ill.Dec. 525, 821 N.E.2d 1099 (2004) (“The
term ‘proximate cause’ encompasses two distinct requirements: cause in
fact and legal cause.”); Sibbing v. Cave, 922 N.E.2d 594 (Ind. 2010);
Puckett v. Mt. Carmel Regional Medical Center, 290 Kan. 406, 228 P.3d
1048 (2010) (“The traditional conception of proximate cause incorporates
concepts that fall into two categories: cause-in-fact and legal causation.”);
Skinner v. Square D Co., 445 Mich. 153, 516 N.W.2d 475 (1994). On the
terminology of proximate cause and factual cause, see § 14.3. The formulas
and their interpretation are considered in § 15.6.
27 See Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976) (“The
determination of proximate cause is subject to considerations of fairness
and social policy as well as mere [factual] causation.”).
28 See Lucero v. Holbrook, 2012 WY 152, 288 P.3d 1228 (Wyo. 2012).
29 For example, in Estate of Heck v. Stoffer, 786 N.E.2d 265 (Ind.
2003), the defendant left his gun, insecure, in his home, though he knew
that a fleeing felon had keys to the house and motive to use the gun. The
felon did so, killing Officer Heck. The court, answering the defendant’s no-
duty argument, concluded that a jury could find the theft and killing
foreseeable. The defendant then argued that the thief’s conduct was a
supervening cause. But once the court had permitted a finding of
foreseeability, there was no viable proximate cause argument left. “[A] gun
owner’s duty to safely store and keep his/her firearm protects against the
very result the trial court ruled was an intervening act—that a third party
would obtain the firearm and use it in the commission of a crime. Denying
recovery because the very act protected against occurred would make the
duty a nullity.”
30 See, e.g., Lamp v. Reynolds, 249 Mich. App. 591, 645 N.W.2d 311
(2002).
31 See Chapter 10.
32 See W. Jonathan Cardi, Purging Foreseeability, 58 Vand. L. Rev.
739 (2005).
33 See Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829 (2006).
34 See § 10.2.
35 See Zwiren v. Thompson, 276 Ga. 498, 578 S.E.2d 862 (2003)
(proximate cause “is always to be determined on the facts of each case
upon mixed considerations of logic, common sense, justice, policy, and
precedent”).
36 See David G. Owen, Figuring Foreseeability, 44 Wake Forest L.
Rev. 1277 (2009) (discussing the continued importance of foreseeability in
duty determinations).
37 See § 26.12.
38 See Chapter 10.
39 See Chapter 29.
40 Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E.2d 99
(1928), discussed in § 15.7.
41 See, e.g., Foss v. Kincade, 766 N.W.2d 317 (Minn. 2009); Lucero v.
Holbrook, 288 P.3d 1228 (Wyo. 2012).
42 E.g., Sharp v. Town of Highland, 665 N.E.2d 610 (Ind. App. 1996).
Two leading cases, Overseas Tankship (U.K.), Limited v. Morts Dock &
Engineering Co., Limited (The Wagon Mound), [1961] A.C. 388 (Privy
Council 1961), and Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162
N.E. 99 (1928), could have been resolved by discussing intervening causes,
but both courts went straight to the foreseeability issue without first
discussing intervening cause. For a discussion of the approach some
modern courts have taken in rejecting intervening cause analysis, see §
15.21.
43 To take one noteworthy example, some authorities said that to be
a proximate cause, the defendant’s conduct must be a substantial factor in
causing the plaintiff’s harm. That term explains nothing about what to
look for and runs the risk of confusing factual cause issues, to which it is
sometimes applied in lieu of the but-for test. See David W. Robertson, The
Common Sense of Cause in Fact, 75 Tex. L. Rev. 1765 (1997).
44 Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256
(1876) (the facts must “constitute a continuous succession of events, so
linked together as to make a natural whole” without a “new and
independent cause intervening between the wrong and the injury”);
Anselmo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996); Hale v. Brown, 287
Kan. 320, 197 P.3d 438 (2008); CSX Transp., Inc. v. Continental Ins. Co.,
343 Md. 216, 680 A.2d 1082 (1996) (“cause which, in a natural and
continuous sequence, unbroken by any efficient intervening cause,
logically and probably produces the injury”); Kellermann v. McDonough,
278 Va. 478, 684 S.E.2d 786 (2009).
45 E.g., Gilmore v. Shell Oil Co., 613 So.2d 1272 (Ala. 1993).
46 See, e.g., Ross v. Nutt, 177 Ohio St. 113, 203 N.E.2d 118 (1964)
(“To find that an injury was the natural and probable consequence of an
act, it must appear that the injury complained of could have been foreseen
or reasonably anticipated from the alleged negligent act.”).
47 E.g., Tetro v. Town of Stratford, 189 Conn. 601, 458 A.2d 5 (1983)
(“The test for finding proximate cause ‘is whether the harm which occurred
was of the same general nature as the foreseeable risk created by the
defendant’s negligence.’ … The foreseeable risk may include the acts of the
plaintiff and of third parties.”); Thompson v. Kaczinski, 774 N.W.2d 829
(Iowa 2009); Leavitt v. Brockton Hospital, Inc., 454 Mass. 37, 907 N.E.2d
213 (2009); J.T. Baggerly v. CSX Transp., Inc., 370 S.C. 362, 635 S.E.2d 97
(2006). The foreseeability rule may be stated as a rule that the defendant
owes no duty or is not negligent except as to foreseeable risks. Di Ponzio v.
Riordan, 89 N.Y.2d 578, 679 N.E.2d 616, 657 N.Y.S.2d 377 (1997).
48 See Lodge v. Arett Sales Corp., 246 Conn. 563, 717 A.2d 215
(1998).
49 E.g., Splendorio v. Bilray Demolition Co., 682 A.2d 461 (R.I. 1996).
Cf. Fisher v. Swift Transp. Co., 342 Mont. 335, 181 P.3d 601 (2008) (duty
owed only to foreseeable plaintiffs).
50 See § 15.12.
51 See § 15.11.
52 Overseas Tankship (U.K.), Ltd. v. Morts Dock & Engineering Co.,
Limited (The Wagon Mound), [1961] A.C. 388 (Privy Council 1961).
53 For purposes of the decision, the House of Lords accepted the
finding that fire was not foreseeable. Later evidence might cast the finding
in doubt, but for purposes of the case, it must be taken as true.
54 See § 15.8.
55 This was essentially the proof in another round of the same case,
Wagon Mound II, Overseas Tankship (U.K.), Ltd. v. Miller Steamship Co.,
[1967] 1 A.C. 617 (Privy Council 1966).
56 Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E.2d 99
(1928).
57 Id. A number of courts see the “foreseeable plaintiff” issue as going
to duty, not to proximate cause. See, e.g., Fisher v. Swift Transp. Co., 342
Mont. 335, 181 P.3d 601 (2008).
58 Cardozo expressed the rule as a rule that the defendant was not
negligent toward Mrs. Palsgraf and also as a rule that it owed her no duty.
The dissent by Judge Andrews insisted that the issue was not about
negligence or scope of duty but about proximate cause. On their different
views and on the “duty” approach to scope of liability issues, see § 15.5. For
present purposes, nomenclature is not the point.
59 Wagner v. International Ry., 232 N.Y. 176, 133 N.E. 437 (1921).
60 E.g., Solomon v. Shuell, 435 Mich. 104, 457 N.W.2d 669 (1990);
Tri-State Wholesale Associated Grocers, Inc. v. Barrera, 917 S.W.2d
391(Tex. App. 1996); Restatement Third of Torts (Liability for Physical
and Emotional Harm) § 32 (2010); Restatement Second of Torts § 445
(1965).
61 In order for the rescue doctrine to apply at all, the rescuer must
have had a reasonable belief that the victim was in peril. See Rasmussen
v. State Farm Mut. Auto. Ins. Co., 278 Neb. 289, 770 N.W.2d 619 (2009).
The rescue doctrine has been applied, however, where the victim was not
in actual danger. See Solomon v. Shuell, 435 Mich. 104, 457 N.W.2d 669
(1990). It has also been applied to rescuers of property, not just rescuers of
other persons. See Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 32 cmt. b (2010). Since rescue is socially useful, some
degree of risk-taking by rescuers is reasonable and not at all negligent.
62 Clinkscales v. Nelson Securities, Inc., 697 N.W.2d 836 (Iowa
2005).
63 See Hollingsworth v. Schminkey, 553 N.W.2d 591, 598 (Iowa
1996).
64 See Star Transport, Inc. v. Byard, 891 N.E.2d 1099 (Ind. App.
2008).
65 See Clinkscales v. Nelson Securities, Inc., 697 N.W.2d 836 (Iowa
2005); Solomon v. Shuell, 435 Mich. 104, 457 N.W.2d 669 (1990).
66 E.g., Sears v. Morrison, 76 Cal.App.4th 577, 90 Cal.Rptr.2d 528
(1999) (thoroughly reviewing the authorities).
67 See Chapter 24.
68 E.g., Hammerstein v. Jean Development West, 111 Nev. 1471, 907
P.2d 975 (1995).
69 E.g., Di Ponzio v. Riordan, 89 N.Y.2d 578, 679 N.E.2d 616, 657
N.Y.S.2d 377 (1997) (gas station negligently allowed motorist to pump gas
with engine running, but was not liable when the car rolled backward and
injured the plaintiff; running the engine created a fire risk, not a risk of
rolling).
70 A prominent example of the fact that courts treat these interests
as identical is found in the products liability rule that applies strict
liability to physical harms of either person or property but does not apply
it to stand-alone economic harm. See § 33.3.
71 Cf. Railway Exp. Agency, Inc. v. Brabham, 62 So.2d 713 (Fla.
1952) (truck running over a box; issue avoided by saying that driver could
have reasonably foreseen that a small boy would be in the box).
72 Busta v. Columbus Hosp. Corp., 276 Mont. 342, 916 P.2d 122
(1996); Rockweit v. Senecal, 197 Wis.2d 409, 541 N.W.2d 742 (1995).
73 In re Arbitration between Polemis and Furness, Withy & Co., Ltd.,
[1921] 3 K.B. 560 (C.A. 1921).
74 See § 15.7.
75 Id.
76 See § 15.11.
77 See § 15.15.
78 E.g., Busta v. Columbus Hosp. Corp., 276 Mont. 342, 916 P.2d 122
(1996) (using a direct-cause test of proximate cause but invoking
foreseeability to limit liability).
79 See §§ 15.11 & 15.12.
80 See Petition of Kinsman Transit Co., 338 F.2d 708 (2d Cir. 1964).
81 E.g., LaFaso v. LaFaso, 126 Vt. 90, 223 A.2d 814 (1966).
82 Owens Corning v. R.J. Reynolds Tobacco Co., 868 So.2d 331 (Miss.
2004).
83 See §§ 15.14 to 15.19.
84 See generally Chapter 35.
85 See People v. Brady, 129 Cal. App.4th 1314, 1333, 29 Cal. Rptr. 3d
286, 302 (2005); Berte v. Bode, 692 N.W.2d 368, 374 (Iowa 2005)
(describing superseding cause issues as subsets of the proximate cause
issue); Restatement Third of Torts (Liability for Physical and Emotional
Harm) § 34 (2010). A few courts place the burden on the defendant to
prove a superseding cause, regarding it as an affirmative defense. E.g.,
Mengwasser v. Anthony Kempker Trucking, Inc., 312 S.W.3d 368 (Mo.
App. 2010).
86 See § 15.21.
Emotional Harm) § 34 cmt. a (2010) (noting that “were it not for the long
history of intervening and superseding causes playing a significant role in
limiting liability, this Section would not be necessary” since it tracks the
basic and more general scope of liability rule).
88 Farr v. NC Machinery Co., 186 F.3d 1165 (9th Cir. 1999) (“A
superseding cause generally has to happen after the negligence of the
defendant.”); Regan v. Stromberg, 285 N.W.2d 97 (Minn. 1979).
89 See Chamberland v. Roswell Osteopathic Clinic, Inc., 130 N.M.
532, 27 P.3d 1019 (Ct. App. 2001).
90 See, e.g., Watts v. Smith, 375 Mich. 120, 134 N.W.2d 194 (1965).
91 See § 15.6 (stating the formal rule).
92 E.g., Malolepszy v. State, 273 Neb. 313, 729 N.W.2d 669 (2007).
93 See, e.g., Loftus v. Dehail, 133 Cal. 214, 65 P. 379 (1901), and
Miller v. Bahmmuller, 124 A.D. 558, 108 N.Y.S. 924 (1908), cases relied
upon by the Restatement Second’s § 442B in support of its illustration 7.
94 E.g., Graham v. Keuchel, 847 P.2d 342 (Okla. 1993).
95 See Marshall v. Nugent, 222 F.2d 604 (1st Cir. 1955); Duncavage
v. Allen, 147 Ill.App.3d 88, 497 N.E.2d 433, 100 Ill.Dec. 455 (1986) (noting
that the cause-condition distinction has been discredited).
96 As to the intervening criminal acts vs. intervening negligent acts,
see § 15.14 & 15.16.
97 See, e.g., Goldberg v. Florida Power & Light Co., 899 So.2d 1105,
1116 (Fla. 2005).
98 Winschel v. Brown, 171 P.3d 142 (Alaska 2007); Latzel v. Bartek,
846 N.W.2d 153 (Neb. 2014); Johnson v. Hillcrest Health Ctr., Inc., 70 P.3d
811 (Okla. 2003).
99 E.g., Bailey v. Lewis Farm, Inc., 343 Or. 276, 171 P.3d 336 (2007).
100 Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 434
N.Y.S.2d 166, 414 N.E.2d 666 (1980).
101 In J.T. Baggerly v. CSX Transp., Inc., 370 S.C. 362, 635 S.E.2d 97
(2006), defendants responsible for the condition of railroad tracks failed to
keep ballast at the proper level, risking misalignment of tracks and
derailment of a train. The tracks so maintained were struck by a street
sweeper manned by a driver who had fallen asleep. The blow evidently
threw the tracks into misalignment, and the next train, running on the
track a few minutes later, derailed, injuring the plaintiff. Proper ballast
would have caused the sweeper to ride up over the tracks and not to cause
their misalignment. Defendants were subjected to a jury decision on
proximate cause; they could foresee misalignment and derailment from
some blow, even if they could not foresee that the driver of a sweeper
would fall asleep.
102 E.g., Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821, 829
(Del. 1995) (“If the intervening negligence of a third party was reasonably
foreseeable, the original tortfeasor is liable for his negligence because the
causal connection between the original tortious act and the resulting
injury remains unbroken. If, however, the intervening negligence was not
reasonably foreseeable, the intervening act supersedes and becomes the
sole proximate cause of the plaintiff’s injuries, thus relieving the original
tortfeasor of liability.”).
103 See People v. Brady, 129 Cal. App. 4th 1314, 1333, 29 Cal. Rptr.
3d 286, 302 (2005).
104 See Mitchell v. Cedar Rapids Community School Dist., 832 N.W.2d
689 (Iowa 2013); Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 29, cmts. d & j (2010). Cf. Leavitt v. Brockton Hosp.,
Inc., 454 Mass. 37, 907 N.E.2d 213 (2009) (“resulting injury [must be]
within the scope of foreseeable risk arising from the negligent conduct”).
105 Berry v. Sugar Notch Borough, 191 Pa. 345, 43 A. 240 (1899).
106 See § 15.15.
108 Chicago City Ry. Co. v. Saxby, 213 Ill. 274, 72 N.E. 755 (1904); Cf.
Hammerstein v. Jean Development West, 111 Nev. 1471, 907 P.2d 975
(1995) (plaintiff suffered diabetes and was thus more susceptible to
gangrene in case of injury to extremity; negligent fire alarm company was
liable for that when the plaintiff turned his ankle attempting to escape a
hotel when the alarm falsely signaled a fire).
109 E.g., Gibson v. County of Washoe, Nevada, 290 F.3d 1175 (9th Cir.
2002); David v. DeLeon, 250 Neb. 109, 547 N.W.2d 726 (1996).
110 These rules are distinguished in Rowe v. Munye, 702 N.W.2d 729
(Minn. 2005).
111 When the defendant is held liable for the preexisting condition
itself and not merely for aggravation of it, it is not because of the thin-
skull rule but the indivisible injury rule. See 1 Dobbs, Hayden & Bublick,
The Law of Torts § 192 (2d ed. 2011 & Supp.).
112 See, e.g., Rowe v. Munye, 702 N.W.2d 729 (Minn. 2005). If the
defendant knows or should know of the plaintiff’s peculiar susceptibility,
he is of course obliged to exercise ordinary care with that susceptibility in
mind and is liable for injuries caused if he does not. But that liability does
not invoke the thin-skull rule.
113 See Vaughn v. Nissan Motor Corporation in U.S.A., Inc., 77 F.3d
736, 738 (4th Cir. 1996); Restatement Third of Torts (Liability for Physical
114 See, e.g., Alder v. Bayer Corp., AGFA Div., 61 P.3d 1068 (Utah
2002).
115 See Homac Corporation v. Sun Oil Co., 258 N.Y. 462, 180 N.E. 172
(1932).
116 Atchison, T. & S. F. R. Co. v. Stanford, 12 Kan. 354 (1874) (three
and one-half to four miles); Silver Falls Timber Co. v. Eastern & Western
Lumber Co., 149 Or. 126, 40 P.2d 703 (1935) (apparently burning for
miles, crossing two creeks and a green ridge of timber).
117 Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003) (harm must
be of the “same general nature as the foreseeable risk created by the
defendant’s negligence”).
118 Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226 (Mo. 2001),
overruled on other grounds, Badahman v. Catering St. Louis, 395 S.W.3d
29 (Mo. 2013); see also, e.g., Stodola v. Grunwald Mechanical Contractors,
Inc., 228 Neb. 301, 305, 422 N.W.2d 341, 344 (1988) (“The law does not
require precision in foreseeing the exact hazard or consequence which
happens. It is sufficient if what occurs is one of the kind of consequences
which might reasonably be foreseen.”); Lee Lewis Const. v. Harrison, 70
S.W.3d 778 (Tex. 2002) (“Foreseeability does not require an actor to
anticipate the precise manner in which the injury will occur; instead, the
injury need only be of a general character that the actor might reasonably
anticipate.”).
119 Cf. Hembree v. State, 2001 WL 575561 (Tenn. Ct. App. 2001)
(negligent release of criminally dangerous mentally ill person, injury two
and a half years later; “Peavyhouse was a time bomb waiting to explode”).
120 Hughes v. Lord Advocate, [1963] A.C. 837 (H.L. 1963) (Lord Reid
emphasizing “known source” among other things; Lord Guest emphasizing
“same type of accident”; and Lord Pearce using the “variant” language).
121 J.T. Baggerly v. CSX Transp., Inc., 370 S.C. 362, 635 S.E.2d 97
(2006).
122 See Washington & G. R. Co. v. Hickey, 166 U.S. 521, 17 S.Ct. 661,
41 L.Ed. 1101 (1897) (a delay was to be foreseen as a danger, and a “delay
might be occasioned … by an almost infinite number of causes. The horses
might stumble. The harness might give way. The car might jump the
track. A hundred different things might happen which would lead to a
delay, and hence to the probability of an accident. It was not necessary
that the driver should foresee the very thing itself which did cause the
delay.”).
123 See Castro v. Hernandez-Davila, 694 S.W.2d 575 (Tex. App. 1985)
(intoxicated driver who drove into apartment building, causing a wall to
collapse).
124 See § 15.9.
125 Doughty v. Turner Manufacturing Co., [1964] 1 Q.B. 518 (C.A.
1963).
126 Restatement Second of Torts § 442B (1965). See also Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 34 cmt. d
(2010) (“When an actor is found negligent precisely because of the failure
to adopt adequate precaution against the risk of harm created by another’s
acts or omissions, or by an extraordinary force of nature, there is no scope-
of liability limitation on the actor’s liability.”).
127 Johnson v. Kosmos Portland Cement Co., 64 F.2d 193 (6th Cir.
1933).
128 See Gibson v. Garcia, 96 Cal.App.2d 681, 216 P.2d 119 (1950)
(precise form of intervening force need not be foreseeable); Restatement
129 See § 15.1.
130 See, e.g., Stephenson v. Air Products & Chemicals, Inc., 114 Ill.
App. 2d 124, 252 N.E.2d 366 (1969) (as a result of injury caused by
defendant, plaintiff suffered a second injury five years later).
131 Delaware, Lackawanna and Western R. Co. v. Salmon, 39 N.J.L.
299 (1877) (proximate cause refers to “closeness of causal connection, and
not nearness in time or distance”).
132 Estates of Morgan v. Fairfield Family Counseling Center, 77 Ohio
St. 3d 284, 673 N.E.2d 1311 (1997).
133 See § 29.10.
134 See Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 59
A.L.R. 1253 (1928).
135 See § 15.17.
136 Staelens v. Dobert, 318 F.3d 77 (1st Cir. 2003).
137 Hammock v. Red Gold, Inc., 784 N.E.2d 495 (Ind. App. 2003).
138 Id.
139 E.g., Alston v. Advanced Brands and Importing Co., 494 F.3d 562
(6th Cir. 2007); Ex parte Wild West Social Club, Inc., 806 So.2d 1235 (Ala.
2001); Williams ex rel. Raymond v. Wal-Mart Stores East, L.P., 99 So.3d
112 (Miss. 2012); Phan Son Van v. Pena, 990 S.W.2d 751 (Tex. 1999). The
federal statute immunizing licensed gun and ammunition manufacturers
and dealers from negligence liability where the plaintiff’s injury was
caused by the criminal act of a third person explicitly embodies the “sole
proximate cause” rule. See Adames v. Sheahan, 233 Ill.3d 276, 909 N.E.2d
742, 330 Ill.Dec. 720 (2009) (applying 15 U.S.C.A. § 7903(5)(A)(v) (2006),
which provides that a criminal offense “shall be considered the sole
proximate cause of any resulting death, personal injuries or property
damage” in a suit against a covered defendant).
140 See § 15.9.
141 See Alamo Rent-A-Car, Inc. v. Hamilton, 216 Ga.App. 659, 455
S.E.2d 366 (1995).
143 Poskus v. Lombardo’s of Randolph, Inc., 423 Mass. 637, 670
N.E.2d 383 (1996).
Harm) § 34 cmt. d (2010).
145 Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003); Tenney v.
Atlantic Associates, 594 N.W.2d 11 (Iowa 1999); Restatement Second of
Torts § 449 (1965).
146 See Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997).
147 Watson v. Kentucky & Indiana Bridge & Railroad Co., 137 Ky.
619, 126 S.W. 146 (1910).
148
See, e.g., Loftus v. Dehail, 133 Cal. 214, 65 P. 379 (1901); Miller v.
Bahmmuller, 124 A.D. 558, 108 N.Y.S. 924 (1908).
149 Perry v. Rochester Lime Co., 219 N.Y. 60, 113 N.E. 529 (1916).
150 See Estate of Strever v. Cline, 278 Mont. 165, 924 P.2d 666 (1996);
Doe v. Linder Const. Co., 845 S.W.2d 173 (Tenn. 1992).
151 See §§ 15.18 & 26.12.
152 See § 15.18.
153 See Patrick J. Kelley, Proximate Cause in Negligence Law:
History, Theory, and the Present Darkness, 69 Wash. U. L. Q. 49, 78–81
(1991).
154 Britton v. Wooten, 817 S.W.2d 443, 449 (Ky. 1991). See also
Petition of Kinsman Transit Co., 338 F.2d 708, 719 (2d Cir. 1964) (“[T]he
discredited notion that only the last wrongful act can be a cause [is] a
notion as faulty in logic as it is wanting in fairness.”).
155 Mitchell v. Cedar Rapids Community School Dist., 832 N.W.2d 689
(Iowa 2013); Glover v. Jackson State University, 968 So.2d 1267 (Miss.
2007); McLean v. Kirby Co., a Div. of Scott Fetzer Co., 490 N.W.2d 229
(N.D. 1992); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992);
Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996).
156 See, e.g., Bower v. Harrah’s Laughlin, Inc., 125 Nev. 37, 215 P.3d
709 (2009) (actions of police department in handcuffing, detaining and
otherwise roughing up the plaintiffs constituted a superseding cause of
plaintiffs’ injuries as a matter of law in suit against casino arising out of a
brawl between biker gangs).
157 E.g., Doe v. Linder Const. Co., 845 S.W.2d 173 (Tenn. 1992)
(finding defendant not liable as a matter of law for leaving plaintiff’s keys
accessible to workmen, one of whom raped her, on the ground that the
rape was a superseding cause).
158 However, although California makes case-by-case determinations
of foreseeability under the rubric of “duty,” at the same time it holds that
greater foreseeability or higher probability of harm is required when the
injury occurs through a criminal act of a third person. See Wiener v.
Southcoast Childcare Centers, Inc., 32 Cal. 4th 1138, 88 P.3d 517, 12 Cal.
Rptr. 3d 615 (2004). On duty to protect against acts of third persons
generally, see Chapter 26.
159 E.g., Ross v. Nutt, 177 Ohio St. 113, 203 N.E.2d 118 (1964). If the
thief’s negligence is not foreseeable, it would seem that the issue is one of
negligence, not proximate cause; no harm to others being foreseeable, the
defendant simply is not negligent at all. See William H. Danne, Jr.,
Annotation, Liability of Motorist Who Left Key in Ignition for Damage or
Injury Caused by Stranger Operating the Vehicle, 45 A.L.R.3d 787 (1972).
160 See Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171, 681
P.2d 893, 203 Cal. Rptr. 626 (1984); Poskus v. Lombardo’s of Randolph,
Inc., 423 Mass. 637, 670 N.E.2d 383 (1996); Kozicki v. Dragon, 255 Neb.
248, 583 N.W.2d 336 (1998); Herrera v. Quality Pontiac, 134 N.M. 43, 73
P.3d 181 (2003); McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991).
161 See In re September 11 Litig., 280 F.Supp.2d 279 (S.D.N.Y. 2003)
(9–11 terrorists getting control of defendant’s plane, defendants were
under a duty of reasonable care, since terrorists and injury to victims on
the ground were foreseeable).
162 See Gallara v. Koskovich, 364 N.J.Super. 418, 836 A.2d 840 (2003)
(plaintiff not required to prove that ultimate harm was foreseeable if the
same type of harm caused by intervening act was foreseeable).
163 Concord Florida, Inc. v. Lewin, 341 So.2d 242, 245 (Fla. Dist. Ct.
App. 1976) (“the risk created here was not that of an arsonist or madman
setting fire to a building, per se, but rather, the risk of fire, itself”).
164 See, e.g., d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886 (9th Cir.
1977); Britton v. Wooten, 817 S.W.2d 443 (Ky. 1991).
165 Wiener v. Southcoast Childcare Centers, Inc., 32 Cal. 4th 1138, 88
P.3d 517, 12 Cal. Rptr. 3d 615 (2004) (duty rather than proximate cause
analysis).
166 See § 26.1.
167 Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244
(2003).
168 See Chapters 25 & 26.
169 Courts sometimes speak of the act of God “defense”, e.g., Eli
Investments, LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151
(Miss. 2013); Tel Oil Co. v. City of Schenectady, 303 A.D.2d 868, 757
N.Y.S.2d 121 (2003); Lang v. Wonnenberg, 455 N.W.2d 832 (N.D. 1990).
Yet the point seems to be only that the defendant was not negligent, which
goes to negate the plaintiff’s prima facie case but that is not a matter on
which the defendant must carry ordinarily the burden of proof. However,
when statutes put the burden on the defendant to justify a loss, act of God
may be a true affirmative defense.
170 See Denis Binder, Act of God? Or Act of Man?: A Reappraisal of
the Act of God Defense in Tort Law, 15 Rev. Litig. 1 (1996).
171 “Act of God” often turns out to be about factual cause rather than
about intervening forces or scope of liability. Thus intervening forces of
nature are said to bar the plaintiff’s claim only when the injury would
have occurred even without the defendant’s activity. See Trotter v.
Callens, 89 N.M. 19, 546 P.2d 867 (Ct. App. 1976). That means the
defendant’s activity was not a factual cause under the but-for rule.
172 E.g., Keystone Elec. Mfg. Co. v. City of Des Moines, 586 N.W.2d
340 (Iowa 1998); see also Bradford v. Universal Const. Co., 644 So.2d 864
(Ala. 1994) (if high winds were foreseeable, defendant might have been
negligent in leaving unweighted plywood sheets where wind might blow
them into the plaintiff); Lanz v. Pearson, 475 N.W.2d 601 (Iowa 1991) (icy
or obscured condition on highway).
173 E.g., Rocky Mountain Thrift Stores, Inc. v. Salt Lake City Corp.,
887 P.2d 848 (Utah 1994) (“no duty” to protect against unforeseeable
flooding, hence no negligence).
174 See Puckett v. Mt. Carmel Regional Medical Center, 290 Kan. 406,
228 P.3d 1048 (2010); Wilke v. Woodhouse Ford, Inc., 278 Neb. 800, 774
N.W.2d 370 (2009).
175 See Goldberg v. Florida Power & Light Co., 899 So.2d 1105, 1116
(Fla. 2005).
176 Austermiller v. Dosick, 146 Ohio App.3d 728, 767 N.E.2d 1248
(2002).
177 Morris v. Farley Enterprises, Inc., 661 P.2d 167, 170 (Alaska
1983); Lugtu v. California Highway Patrol, 26 Cal.4th 703, 110
Cal.Rptr.2d 528, 28 P.3d 249 (2001).
178 Marshall v. Nugent, 222 F.2d 604 (1st Cir. 1955). But cf. Staelens
v. Dobert, 318 F.3d 77 (1st Cir. 2003) (driver of tanker, not injured in
impact with negligent defendant, suffered injury when he fell on
equipment used by state investigators who came to the scene later, held,
summary judgment for defendant affirmed because the fall was
unforeseeable).
179 See § 15.7.
180 See, e.g., Espinoza v. Schulenburg, 212 Ariz. 215, 109 P.3d 937
(2006).
181 New York’s rule is uniquely different. See § 15.11.
182 See DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558,
583 A.2d 422 (1990); Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993).
183 See, e.g., McKenna v. Wolkswagenwerk Aktiengesellschaft, 57
Haw. 460, 558 P.2d 1018 (1977) (car ran off onto negligently maintained
shoulder then went out of control, causing collision; jury could find that
negligence of driver was foreseeable, so that city could not escape liability
on proximate cause argument); Atlantic Mut. Ins. Co. v. Kenney, 323 Md.
116, 591 A.2d 507 (1991) (truck parked so as to obstruct drivers’ view at
intersection).
184 See Ward v. K-Mart Corp., 136 Ill.2d 132, 554 N.E.2d 223 (1990);
Simmers v. Bentley Const. Co., 64 Ohio St.3d 642, 597 N.E.2d 504 (1992).
On the plaintiff’s fault as a proximate cause rather than comparative fault
issue, see § 15.19.
185 See, e.g., Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448
(Tex. 2006).
186 Cruz v. City of New York, 218 A.D.2d 546, 630 N.Y.S. 523 (1995);
cf. Bigbee v. Pac. Tel. & Tel. Co., 34 Cal.3d 49, 665 P.2d 947, 192 Cal.Rptr.
857 (1983) (defective telephone booth at an intersection; plaintiff could not
get out when he saw a car coming at him; a jury question whether the
telephone company can escape liability on superseding cause grounds).
187 See, e.g., Keller v. Kiedinger, 389 So.2d 129 (Ala. 1980).
188 E.g., Jamar v. Patterson, 910 S.W.2d 118 (Tex. App. 1995). On
negligent entrustment generally, see § 26.10.
189 See Ross v. Glaser, 220 Mich. App. 183, 559 N.W.2d 331 (1996)
(discussing foreseeability mostly in terms of duty of the entrustor).
190 Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395, 68 A.L.R.2d 761
(1957); Annotation, Liability of Person Permitting Child to Have Gun, or
Leaving Gun Accessible to Child, for Injury Inflicted by the Latter, 68
A.L.R.2d 782 (1959). See § 26.10.
191 Moore v. Myers, 161 Md. App. 349, 868 A.2d 954 (2005).
192 See § 22.10.
193 E.g., Tetro v. Town of Stratford, 189 Conn. 601, 458 A.2d 5 (1983);
Jones v. Ahlberg, 489 N.W.2d 576 (N.D. 1992); Haynes v. Hamilton
County, 883 S.W.2d 606 (Tenn. 1994).
194 Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992).
195 Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 656 A.2d 307
(1995), overruled in part, Baltimore Gas & Elec. Co. v. Flippo, 348 Md.
680, 705 A.2d 1144 (1998); cf. City of Cedar Falls v. Cedar Falls
Community School Dist., 617 N.W.2d 11 (Iowa 2000) (golf cart left in
presence in many kindergarten children with predictable results, jury
could find their intervention foreseeable).
196 Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 617 N.E.2d
1068 (1993).
197 See § 15.12.
198 E.g., Columbia Rio Grande Healthcare, L.P. v. Hawley, 284
S.W.3d 851 (Tex. 2009) (jury could find that doctor’s alleged malpractice
occurring 11 months after the defendant hospital’s negligent misdiagnosis
was not a superseding cause of plaintiff’s harm).
199 Anaya v. Superior Court, 78 Cal.App.4th 971, 93 Cal.Rptr.2d 228
(2000); Atherton v. Devine, 602 P.2d 634 (Okla. 1979).
200 E.g., Convit v. Wilson, 980 A.2d 1104 (D.C. 2009); Cramer v.
Slater, 146 Idaho 868, 204 P.3d 508 (2009); Sibbing v. Cave, 922 N.E.2d
594 (Ind. 2010); Puckett v. Mt Carmel Regional Medical Center, 290 Kan.
406, 228 P.3d 1048 (2010); see V. Woerner, Annotation, Civil liability of
one causing personal injury for consequences of negligence, mistake, or
lack of skill of physician or surgeon,100 A.L.R.2d 808 (1965); Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 35 (2010).
201 E.g., Miyamoto v. Lum, 104 Hawai’i 1, 84 P.3d 509 (2004); D.
Richard Joslyn, Annotation, Proximate Cause: Liability of Tortfeasor for
Injured Person’s Subsequent Injury or Reinjury, 31 A.L.R.3d 1000 (1970).
202 E.g., Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821 (Del.
1995); Latzel v. Bartek, 846 N.W.2d 153 (Neb. 2014).
203 See § 15.12.
204 See Peters v. Calhoun County Com’n, 669 So.2d 847 (Ala. 1995)
(“While the issue of foreseeability in the context of an intervening cause
may be decided as a matter of law, it is more commonly a question for the
trier of fact.”); Volpe v. Gallagher, 821 A.2d 699 (R.I. 2003) (characterizing
issue as one of duty to exercise care, to be determined by foreseeability,
which in turn is usually a jury question).
205 See § 15.11.
206 Sheehan v. City of New York, 40 N.Y.2d 496, 387 N.Y.S.2d 92, 354
N.E.2d 832 (1976).
207 Newton v. South Carolina Public Railways Com’n, 319 S.C. 430,
462 S.E.2d 266 (1995).
208 See § 15.21.
209 Hairston v. Alexander Tank and Equipment Co., 310 N.C. 227,
311 S.E.2d 559 (1984).
210 Copple v. Warner, 260 N.C. 727, 133 S.E.2d 641 (1963).
211 Marshall v. Nugent, 222 F.2d 604 (1st Cir. 1955). See also Exxon
Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 116 S.Ct. 1813, 135 L.Ed.2d 113
(1996); Staelens v. Dobert, 318 F.3d 77 (1st Cir. 2003) (stressing the
passage of 3 to 5 hours between the defendant’s negligence and the
plaintiff’s injury, caused by his tripping over a piece of equipment brought
to the scene by an accident investigator; original defendant’s act was not a
proximate cause because the risks created by that act “had come to rest”);
Hale v. Brown, 287 Kan. 320, 197 P.3d 438 (2008) (stressing that the
length of time between the first tortfeasor’s negligence and the second
tortfeasor’s negligence was a major factor in the conclusion that the first
tortfeasor’s act was not a proximate cause as a matter of law).
212 See § 15.16.
213 Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530 (1949);
Parsons v. Jow, 480 P.2d 396. (Wyo. 1971).
214 This is not to say that the result always changes. See, e.g.,
Rodriguez v. Primadonna Co., LLC, 216 P.3d 793 (Nev. 2009) (hotel owed
no duty to person injured by underage drinking guest who was evicted by
the hotel for disorderly conduct).
215 See § 26.12.
216 Rollins v. Wackenhut Services, Inc., 703 F.3d 122 (D.C. Cir. 2012)
(applying D.C. law).
217 Cf. Runyon v. Reid, 510 P.2d 943 (Okla. 1973) (providing drugs
without a prescription in violation of statute, suicide an independent
intervening act); Scott v. Greenville Pharmacy, 212 S.C. 485, 48 S.E.2d
324 (1948) (allegations that pharmacy illegally provided drugs without
prescription and that the decedent committed suicide under their
influence; addiction but not suicide was foreseeable).
218 Johnson v. Wal-Mart Stores, Inc., 588 F.3d 439 (7th Cir. 2009)
(applying Illinois law); Prill v. Marrone, 23 So.3d 1 (Ala. 2009);
McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983); Clift v.
Narragansett Television L.P., 688 A.2d 805 (R.I. 1996); Cook v. Shoshone
Nat’l Bank, 126 P.3d 886 (Wyo. 2006). See Gregory G. Sarno, Annotation,
Liability of One Causing Physical Injuries as a Result of which Injured
Party Attempts or Commits Suicide, 77 A.L.R.3d 311 (1977).
219 See Joseph v. State, 26 P.3d 459 (Alaska 2001); Hickey v. Zezulka,
439 Mich. 408, 487 N.W.2d 106 (1992); Cowan v. Doering, 111 N.J. 451,
545 A.2d 159 (1988).
221 E.g., Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d
299 (Mo. 2011) (widow was required to show that her husband’s suicide
was a natural and probable result of the pain caused by surgery
negligently performed by defendant doctor); Cramer v. Slater, 146 Idaho
868, 204 P.3d 508 (2009) (question of fact whether defendant’s negligent
misdiagnosis of HIV status was a proximate cause of patient’s suicide;
suicide would be a superseding cause only if not reasonably foreseeable);
Delaney v. Reynolds, 63 Mass. App.Ct. 239, 825 N.E.2d 554 (2005)
(rejecting the application of any “ironclad rule” of scope of liability in
suicide cases, applying instead a general foreseeability test).
222 See Jutzi-Johnson v. United States, 263 F.3d 753 (7th Cir. 2001);
Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. App. 2003).
223 McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983).
224 Perez v. Lopez, 74 S.W.3d 60 (Tex. App. 2002).
225 Providence Health Center v. Dowell, 262 S.W.3d 324 (Tex. 2008).
226 See Chapter 29.
227 Id.
228 See Chapter 41.
229 See Stevenson v. East Ohio Gas Co., 73 N.E.2d 200 (Ohio
App.1946).
230 See, e.g., Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000)
(discussing many cases, focusing on economic rationales for denying purely
economic losses in negligence cases).
231 See Chapter 41.
232 See, e.g., Exxon Company, U.S.A. v. Sofec, Inc., 517 U.S. 530, 116
S.Ct. 1813, 135 L.Ed.2d 113 (1996); General Motors Corp. v. Wolhar, 686
A.2d 170 (Del. 1996); Standard Havens Products, Inc. v. Benitez, 648 So.2d
1192 (Fla. 1994); Komlodi v. Picciano, 217 N.J. 387, 89 A.3d 1234 (2014);
Boltax v. Joy Day Camp, 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527
(1986); Buckley v. Bell, 703 P. 2d 1089 (Wyo. 1985). In those few
jurisdictions retaining contributory negligence as a complete bar to
recovery, a plaintiff’s contributory negligence must still be found to have
proximately caused her own harm. See Rascher v. Friend, 279 Va. 370, 689
S.E.2d 661 (2010).
233 See §§ 16.10 to 16.11.
234 Cf. Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 166
L.Ed.2d 638 (2007) (so stating, but not clearly distinguishing actual cause
from proximate cause in the sense of scope-of-risk rules).
235 See Von der Heide v. Com., Dep’t of Transp., 553 Pa. 120, 718 A.2d
286 (1998). Some decisions, often quoting the Restatement Second of Torts
§ 440, have defined superseding cause as an act of a third person or
outside force. E.g., Com., Transp. Cabinet, Dep’t of Highways v. Babbitt,
172 S.W.3d 786 (Ky. 2005); Hickey v. Zezulka, 439 Mich. 408, 487 N.W.2d
106 (1992); Vilas v. Steavenson, 242 Neb. 801, 496 N.W.2d 543 (1993). If
that definition is adhered to, the plaintiff’s own conduct would never count
as a superseding cause. If that is the right result, it probably should be
achieved through policy analysis rather than through the accident of a
definition. See Paul T. Hayden, Butterfield Rides Again: Plaintiff’s
Negligence as Superseding or Sole Proximate Cause in Systems of Pure
Comparative Responsibility, 33 Loy. L.A. L. Rev. 887 (2000).
236 Exxon Company, U.S.A. v. Sofec, Inc., 517 U.S. 830, 116 S.Ct.
1813, 135 L.Ed.2d 113 (1996).
237 It may also be that the Court used the superseding cause notion to
avoid holding a slightly-negligent defendant liable for a large damages
award; other courts appear to have done so.
238 See Gunnell v. Arizona Public Service Co., 202 Ariz. 388, 46 P.3d
399 (2002) (noting that where negligence of both parties cause the
plaintiff’s harm, the state’s system for jury determination of comparative
fault should not be evaded by casting the issue as one of sole cause rather
than as one of negligence); Soto v. New York City Transit Authority, 6
N.Y.3d 487, 846 N.E.2d 1211, 813 N.Y.S.2d 701 (2006) (plaintiff was
reckless in running along catwalk beside a subway track, but subway
operator was also negligent and the plaintiff’s fault “was not so egregious
or unforeseeable that it must be deemed a superseding cause of the
accident absolving defendant of liability”).
239 Parvi v. City of Kingston, 41 N.Y.2d 553, 560, 362 N.E.2d 960, 965,
394 N.Y.S.2d 161, 166 (1977). Cf. Bexiga v. Havir Manufacturing Corp., 60
N.J. 402, 290 A.2d 281 (1972) (plaintiff’s negligence not a defense where
defendant owed a duty to protect him from that very negligence).
240 See § 15.18.
241 See § 14.6.
(2d ed. 2011 & Supp.).
243 See §§ 35.3 to 35.5. Thus, even in that system of apportionment,
the all-or-nothing conclusion that the first actor is not a proximate cause is
no longer so common.
244 Some courts have also curbed the superseding cause analysis in
favor of more emphasis on comparative responsibility. See § 15.21.
245 See § 215. The Restatement Third criticizes the term “sole
proximate” cause as particularly confusing and misleading, and counsels
against using it at all. See Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 34, cmt. f (2010).
246 See, e.g., Godesky v. Provo City Corp., 690 P.2d 541 (Utah 1984)
(noting comparative fault options) & § 215. Some courts have found a
plaintiff’s negligence to be a superseding or sole proximate cause of harm
in pure comparative jurisdictions, apparently as a kind of safety valve to
protect a slightly-negligent (comparatively) defendant from a large
damages award. Such a safety valve is not needed in a modified
comparative jurisdiction. See Paul T. Hayden, Butterfield Rides Again:
Plaintiff’s Negligence as Superseding or Sole Proximate cause in Systems
of Pure Comparative Responsibility, 33 Loy. L.A. L. Rev. 887 (2000). The
Restatement Third deals with this problem by suggesting that where an
actor’s negligence is only a “trivial contribution to a causal set that is a
factual cause of harm,” then that harm is not within the scope of the
actor’s liability. Restatement Third of Torts (Liability for Physical and
247 See § 15.20.
248 Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258
(2003); Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 946 A.2d
839 (2008) (holding that “Barry clearly establishes that the doctrine of
superseding cause is limited to situations in which an unforeseeable
intentional tort, force of nature or criminal event supersedes the
defendant’s tortious conduct”); Control Techniques, Inc. v. Johnson, 762
N.E.2d 104 (Ind. 2002); Torres v. El Paso Elec. Co., 127 N.M. 729, 987 P.2d
386 (1999), overruled on other grounds, Herrera v. Quality Pontiac, 134
N.M. 43, 73 P.3d 181 (2003).
249 Gunnell v. Arizona Public Service Co., 202 Ariz. 388, 46 P.3d 399
(2002); Com., Transp. Cabinet, Dep’t of Highways v. Babbitt, 172 S.W.3d
786 (Ky. 2005) (noting that “the rationale for the doctrine of superseding
cause has been substantially diminished by the adoption of comparative
negligence,” citing Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 34 cmt. a (2010)); Soto v. New York City Transit
Authority, 6 N.Y.3d 487, 846 N.E.2d 1211, 813 N.Y.S.2d 701 (2006).
250 See § 15.19.
251 See Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d
258 (2003); Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind.
2002).
379
Subpart B
DEFENSES
Chapter 16
FAULT OF THE PLAINTIFF

Analysis
A. GENERAL RULES
§ 16.2 The Parallel Analysis of Plaintiff and Defendant Fault
B. COMPARATIVE FAULT
§ 16.4 Assigning Shares of Fault or Responsibility to the Plaintiff
§ 16.5 All-or-Nothing Judgments After Comparative Fault
§ 16.6 Allocating Full Responsibility to the Defendant in the Interests
of Policy or Justice: Plaintiff No-Duty Rules
§ 16.7 Traditional Exceptions to the Contributory Negligence Bar and
Their Status Today
C. RELATED DOCTRINES AND SPECIAL CASES
§ 16.10 The Role of Avoidable Consequences in Comparative Fault
Regimes
§ 16.11 Comparative Fault or Avoidable Consequences in Seatbelt and
Other Safety Precaution Cases
__________
A. GENERAL RULES
Traditional and Contemporary Rules
Plaintiff fault as a complete bar. The traditional rule held that
contributory negligence of a plaintiff was generally a complete bar
to the claim.1 Similarly, the contributory negligence of the person
from whom the plaintiff derived her claim was also a complete
bar.2 As contemporary courts have observed in criticizing this older
rule, the
380
plaintiff who was guilty of only slight or trivial negligence was

completely barred from any recovery, even if the defendant was
guilty of quite serious negligence.3 No satisfactory reasoning has
ever explained the rule. It departed seriously from ideals of
accountability and deterrence because it completely relieved the
defendant from liability even if he was by far the most negligent
actor.4
Plaintiff fault allowing recovery with reduced damages. In most
states, plaintiffs who are chargeable with fault are no longer
barred from recovery against defendants who would otherwise be
liable. Instead, damages are reduced in proportion to the plaintiff’s
fault or responsibility. Thus, shares of the harm are borne by both
plaintiffs and defendants.5
The Terminology Problem
The term “contributory negligence.” Many terms are used to
describe the fault of the plaintiff in a proportionate share system.
The term “contributory negligence” can still be used to describe the
conduct of the plaintiff even when the effect of that conduct is no
longer to bar the claim in most states. Indeed, the Restatement
Third of Torts uses the term “contributory negligence” in precisely
this way.6 However, use of the term “contributory negligence”
sometimes falls flat with lawyers and judges because of the term’s
historic association not only with the plaintiff’s misconduct but also
with the older all-or-nothing effect.
Terms used by courts. The term “comparative negligence”
suggests not only fault of the plaintiff, but also the proportionate
effect of the ruling. The term “comparative fault” is similar to the
term “comparative negligence,” but at times can be construed more
broadly to include causes of action in addition to negligence. The
term “comparative responsibility” typically implies a system that
includes more than just negligence. Because causes of action like
strict liability do not have a fault basis to compare, it is sometimes
said that when comparing strict liability and negligence,
“responsibility,” rather than “fault,” is compared.
Terms used in this chapter. This chapter focuses on fault of the
plaintiff in the various apportionment systems. Typically, the
plaintiff’s fault is negligence. Whether plaintiff negligence is an
available defense also may depend on the nature of the claim
against the defendant. Again, the typical comparison is with the
defendant’s negligent conduct. However, plaintiff fault as a defense
to strict liability or reckless or intentional misconduct is addressed
in specific sections too. Although cases and authorities cited in this
chapter use a wide range of terms for the fault of the plaintiff, this
chapter chiefly employs the term “comparative negligence” or
“comparative fault” when discussing the negligence of the plaintiff
in a proportionate share system.
381
§ 16.2 The Parallel Analysis of Plaintiff and

Defendant Fault
Parallels on the negligence issue. There is some debate about
how similar the concepts of plaintiff negligence and defendant
negligence are to each other. Traditionally, contributory negligence
was a term of art. It meant negligence of the plaintiff in failing to
exercise care for herself that was one of the causes of her harm.7
Under that definition, negligence of the plaintiff differs from
negligence of the defendant, which is a failure to exercise
reasonable care for others. However, in many ways analysis of the
plaintiff’s negligence parallels analysis of the defendant’s
negligence.8
Plaintiff’s duty. It may be awkward to say that the plaintiff
owes the defendant a duty to take reasonable care of herself,9 but
the duty terminology is useful and is embraced by the Restatement
Third.10 In addition to duty, evidence of breach by the plaintiff
must also be shown to present the contributory negligence issue to
the jury. If the plaintiff’s conduct is not negligent, there can be no
comparative negligence defense.11 Thus if a reasonable plaintiff
would not have foreseen a risk or taken steps to reduce it, courts
will reject the comparative fault defense.12
In determining negligence of a plaintiff, as in determining
negligence of a defendant, the reasonable person standard of care
generally applies.13 The balance of risks and utilities14 and other
means of assessing fault15 also apply to the plaintiff as well as to
the defendant. A plaintiff may not be guilty of comparative fault
when she subjects herself to risks in the course of rescuing another
person, because the value of saving another
382
makes the risks reasonable.16 Such holdings are referred to as

the second version of the rescue doctrine, but perhaps they don’t
reflect an independent rule, only the ordinary balance of risks and
utilities familiar in negligence cases.17 Other features of the
negligence analysis, such as the emergency doctrine,18 the
negligence per se rules,19 and even no-duty rules20 apply to the
comparative negligence issue.
Parallels in factual cause and scope of liability issues. Parallels
between defendants and plaintiffs can also be seen with respect to
issues of factual cause and scope of liability. In terms of factual
cause, plaintiff’s negligence that is not the but-for cause of harm is
rightly disregarded.21 Moreover, if the harm that occurred as a
result of the plaintiff’s negligence is different from the type of harm
the plaintiff risked, comparative fault will be inappropriate under
scope of liability rules.22 The Restatement Third of Torts
specifically provides that liability is not to be assigned to the
plaintiff if “the risks posed by the plaintiff’s negligence are
different from the type of risk that produced the plaintiff’s harm.”23
Parallels in procedural issues. Comparative negligence of the
plaintiff is also like the defendant’s negligence in terms of a
number of procedural issues. For example, the existence of
comparative negligence is one for the trier of fact to decide unless
the matter is so clear that reasonable persons could not differ.24
The facts, inference, and essential value-judgments about the
reasonableness of plaintiff’s conduct are ordinarily for the trier.25
In particular cases, a court may conclude either that reasonable
persons would
383
necessarily find contributory negligence,26 or that the plaintiff’s

comparative negligence is so great, that as a matter of law a
directed verdict or summary judgment for the defendant is
granted. 27 Courts also sometimes hold that the trier cannot
attribute fault to the plaintiff because the defendant has presented
inadequate evidence to support the assertion of negligence.28
Departing from the parallels: the positional difference between
plaintiffs and defendants. Although the issue of plaintiff negligence
is ordinarily parallel to the issue of defendant negligence, in a few
cases the differences between the two issues may be important.
One who exposes himself to risks does not necessarily stand in the
same moral position as one who exposes others to the same risks.29
For this reason, some commentators have encouraged use of a
semi-subjective standard or other limits on plaintiff negligence
determinations that involve self-risk.30 Even under an objective
reasonable person standard, it is possible that a reasonable person
would expose himself to risks that he could not reasonably inflict
upon others. You might be reasonable, for example, if you dropped
into a vat of poison gas to save your child, in spite of the terrible
risks;31 but you could not reasonably push another person into the
vat for the same purposes. In addition, the plaintiff is not guilty of
either negligence or comparative negligence if responsibility has
been allocated solely to the defendant, which is usually the case
with the driver of a car, whose passenger is not expected to keep a
lookout at all or exercise control over the driving.32
Departing from the parallels: mental disability. Cases involving
negligence or comparative negligence of children also suggest that
there are occasional practical differences between the two concepts.
Many of the cases that give children the benefit of a more forgiving
standard of care are in fact decisions in which the allegedly
negligent child is a plaintiff and the issue is one of comparative
negligence.33 This fact suggests that at least in some cases, the
difference between exercising care for one’s self and exercising care
for others might be important. Some other cases, such as those
involving plaintiffs with mental limitations, particularly when a
defendant knew or should have
384
known of them,34 can be interpreted as similarly imposing a

less demanding standard upon plaintiffs who put themselves, but
not others, at risk.35
B. COMPARATIVE FAULT
Development of Comparative Fault
History of comparative fault. Some kinds of comparative fault
systems, which reduced the plaintiff’s damages but did not bar the
claim altogether, have been around on a limited scale for a long
time. One earlier experiment allowed the negligent plaintiff to
recover if the plaintiff’s negligence was slight and the defendant’s
gross.36 Admiralty law, in ship collision cases, at one time divided
damages fifty-fifty.37
Modern comparative fault. Modern comparative negligence law
works differently, reducing the plaintiff’s recovery in proportion to
the plaintiff’s fault. The idea got its start in 1908 with the Federal
Employers Liability Act (FELA), which governs suits by railroad
employees against their employers.38 A few other federal statutes
made similar provisions for limited groups of plaintiffs.39 In 1910,
Mississippi enacted a general comparative negligence statute,
followed by Wisconsin in 1931 and Arkansas in 1955.40 After this
slow beginning, change came rather quickly in the 1960s and
1970s. Most of the change came through legislation, but after 1973,
a number of states followed Florida’s lead41 by judicially adopting
comparative negligence. By the 1980s, only the District of
Columbia42 and four states—Alabama,43 Maryland,44 North
Carolina,45 and
385
Virginia46—had retained contributory negligence rules,47

although a few other states apply contributory negligence in a
subset of cases.48 Proportionate reduction of damage awards in the
case of plaintiff fault is now the norm in the U.S. and in many
other common law49 and civil law countries.50
Pure vs. Modified Systems of Comparative Fault
The pure or complete system. Two different and mutually
exclusive systems of comparative fault are in use. The first, called
the complete or pure comparative fault system, applies
comparative fault to all plaintiffs in all negligence cases.51 Under
this system, no plaintiff is completely barred from recovery because
of her contributory negligence. Fifteen to twenty states as well as
the major federal statutes adopt this system.52
The modified or incomplete system. The second system of
comparative fault, called the modified or incomplete system,
continues to use the complete bar rule when the plaintiff’s fault
reaches a specified breakpoint. The incomplete system itself has
two slightly variant versions. In one, the “greater-than” version,
the plaintiff is completely barred if her fault exceeds that of the
defendant.53 In the other, the “equal to” version, the plaintiff is
completely barred if her fault, though not exceeding the
defendant’s, is at least equal to it.54
Pure vs. modified comparative fault: an example. In simple two-
party cases, the examples are straightforward. Suppose the jury
finds the plaintiff to be chargeable with 60% of the negligence, the
defendant 40%. The plaintiff’s damages are $10,000. In a pure
comparative fault system, the defendant is liable for only 40% or
$4,000; the plaintiff must bear 60% or $6,000 of her own loss.
Under modified comparative fault, however, the plaintiff would
recover nothing whatsoever; the rules would bar all recovery
because plaintiff’s negligence is not only equal to but also greater
than the defendant’s.55
386
Evaluating systems. The pure or complete system has been

favored by thoughtful commentators including Dean Prosser,56 by
a number of courts,57 and in the federal statutes such as the
FELA.58 Legislators, on the other hand, have tended to favor the
modified system.59 The pure system of comparative fault often
strikes casual observers as unfair because in that system, a
plaintiff guilty of 90% of the negligence could recover damages
from the defendant who is guilty of only 10% of the negligence.60 In
evaluating the complete system of comparative negligence,
however, it is important to remember that each party bears his or
her proportionate share of the damages. The plaintiff guilty of 90%
of the negligence would, after all, bear 90% of her loss. It is also
important to remember that if the defendant is also injured, as
often is the case in automobile collisions, the same plaintiff would
bear 90% of the defendant’s loss.
A cutoff’s dramatic effect. Moreover, under the incomplete
systems, the plaintiff who is charged with 49% of the negligence
would recover 51% of her damages, while the plaintiff charged with
51% would recover nothing at all. Yet it is hard to justify absolving
a defendant of all liability when he was guilty of 49% of the
negligence.61 In addition, questions arise as to whether the jury
should be told of the extreme difference in effect between these two
seemingly similar sets of percentages.62 As the Michigan Court
said, the incomplete systems do not eliminate the traditional bar of
contributory negligence, they only “lower the barrier.”63
§ 16.4 Assigning Shares of Fault or Responsibility
to the Plaintiff
Comparing unjustified risks. Typically, for comparative fault,
juries compare the plaintiff’s causally related negligence alongside
the defendant’s causally related negligence.64 That is, juries can
compare the relevant unjustified risks taken by the plaintiff with
the relevant unjustified risks taken by the deendant.65 Evaluation
of risks
387
taken by the plaintiff and defendant should ordinarily be well

within the traditional capacities of the jury.
Example. Suppose there is a collision between a vehicle
operated by the defendant at 100 mph and a vehicle operated by
the plaintiff at 70 mph. The trier concludes that both drivers were
negligent in that speeding unreasonably increased the risk of
collision and serious damages. Possibly the risk of collision created
by the two drivers would be similar, but the defendant almost
certainly created a greater likelihood of greater harm by driving at
100 mph. If the defendant created unjustified risks of collision that
far exceeded the unjustified risks created by the plaintiff, it
becomes easy to say he was comparatively “more negligent” than
the plaintiff. How much more is an estimate based on degree of
risk. If the trier believes that driving 100 mph created about three
times the risk of driving negligently at 70 mph, the apportionment
could be 75–25%. The 75–25 apportionment is only a rough
estimate of comparative fault, but it has usually seemed better
than no effort to estimate it at all.66
In a few cases, defendants may be subject to a standard of care
(or duty) different from the standard or duty owed by a reasonable
person, as when the defendant owes only a duty to avoid gross
negligence. In such cases the standard of care for the plaintiff and
that for the defendant may differ, a point that would affect
estimates of their respective fault.67
Excluding justified and irrelevant risks. A comparison of
negligence is a comparison of unjustified risks. No comparison is to
be made of risks that are justified, that is, of non-negligent
conduct. Suppose the plaintiff speeds at 75 mph in a 55 mph zone
because she is rushing her injured child to the hospital. She may
not be negligent at all, because the risk may be justified by the
prospect of aiding the child. Suppose, however, the jury believes
that, considering the nature of the child’s injury, 75 mph is much
too fast, and that, given the risk to others and to herself, the
plaintiff should not have driven more than 65 mph. Some of the
risk created by the plaintiff in that case would be justified, that is,
non-negligent. The jury would compare only the risk created by
increasing the speed from 65 to 75. The point is not that the jury
knows how much risk is created by the added speed, but that its
estimate should be about that unjustified risk and not about
another. Similarly, risks of harm to different classes of people and
risks of radically different kinds of harm should be excluded from
the comparison. If the defendant’s speed not only ran the risk of
collision but also the risk that the engine would be damaged by the
speed itself, the engine-damage risk probably should not be piled
on top of the collision risk in estimating the defendant’s fault.68
388
Comparing fault. Although the fault is not relevant if it is not a

cause of the harm, courts in negligence cases ordinarily compare
fault, not causation,69 although causal comparisons do come into
play in apportionments with some other causes of action.70
“Factors” Bearing on Comparison of Fault
Specifying factors bearing on the negligence issue. Some
authorities suggest that relative fault judgments will be improved
if a number of important “factors” guide the assignment of relative
fault. For example, it has been suggested that the jury should be
told to consider the reasonableness of a party’s conduct in
confronting a risk, the existence of a sudden emergency, and
whether the conduct might be justified because it was aimed at
saving a life.71 These particular factors are merely familiar
instances of the fundamental negligence analysis.
Comparing conduct; not state of mind. The orthodox view is that
negligence is conduct, not a state of mind. That view comports with
the equally orthodox holding that conduct is judged by the
standard of the reasonable and prudent person, not by the
subjective capacities of the individual actor. However, the actor’s
state of mind is relevant in judging the unreasonable risks created
by his conduct when his state of mind bears upon the utility of his
conduct. His purpose in speeding to save a child’s life may show
that his speeding has some utility. His purpose to gratify his own
ill-will and spite by frightening others shows just the contrary.72
The Restatement of Apportionment proposes to take into account
“each person’s actual awareness, intent, or indifference with
respect to the risks created by the conduct.”73 These considerations
are difficult to formulate, but presumably they do not justify
liability that turns on evaluations of the actor’s moral worth rather
than upon unreasonable risky conduct. Undue emphasis upon
mental capacity in comparing fault may also undermine
substantive rules. One case74 suggested that personal capacities of
the actor, including age, maturity, and education should be
considered in allocating fault. These are indeed factors that might
traditionally be considered for child actors,75 but not adults. If they
are considered for adults, the result would be that the substantive
rule of tort law holds an adult liable for risky
389
behavior by an objective standard, but that the apportionment

rule could allow a trier of fact to excuse him for substandard
conduct.
Comparative Responsibility
Comparing negligence. The orthodox view in negligence cases is
that comparative negligence is just what it sounds like—a
comparison of the negligence or culpability of each party, an idea
easily understood as a comparison of the unjustified risks taken by
each actor. The only negligence to be compared is negligence that
is, as affirmed by the Restatement Third, conduct that “is relevant
for determining percentage shares of responsibility only when it
caused the harm and when the harm is within the scope of the
person’s liability.”76
Comparing responsibility. An issue discussed at greater length
in the apportionment chapter is the recent suggestion that in
comparative apportionment systems, responsibility rather than
fault should be compared. Some cases77 and authorities78 use
terminology that suggests that the trier of fact, in weighing
comparative fault, could also weigh the causal importance of the
parties’ respective fault.79 Suppose a court says that the jury
coming up with a comparative negligence figure should consider
“the relative closeness of the causal relationship between the
conduct of the defendant and the injury to the plaintiff.”80 That
sounds like an invitation to make some kind of judgment about
comparative proximate cause, perhaps an invitation to conclude
that although both parties negligently contributed to an indivisible
injury, and both were equally at fault, the negligence of one was
more proximate or more important than the other. Or perhaps it is
an invitation to compare factual cause. There is some ambiguity
about the meaning of this criterion. If the language is intended to
add a comparison of causal significance to the ordinary negligence
case, it looks very much as if a whole new conceptual apparatus
will be needed.
§ 16.5 All-or-Nothing Judgments After
Comparative Fault
Distinguishing Cases of No Defendant Negligence
Locating plaintiff fault in the prima facie case and defenses. The
old regime of contributory negligence as a complete bar began with
a looming ambiguity. Was the defendant relieved of liability
because some separate principle barred the plaintiff who was at
fault? Or only because the defendant could reasonably rely upon
the plaintiff to protect herself and was thus simply not negligent?
The ambiguity had little practical significance in the old system,
because, either way, the defendant escaped liability. Comparative
negligence changes that. If the plaintiff’s fault establishes her
negligence, she may still recover with reduced damages. On the
other hand, if the defendant owes
390
no duty of care or if he is not negligent because he could

reasonably expect the plaintiff to protect herself, he is not liable at
all.81
An illustration of the overlap. Negligence on the part of the
plaintiff and lack of negligence on the part of the defendant are
easily confused in these circumstances.82 In a number of contexts it
may be said that conduct on the part of the plaintiff relates to the
negligence of the defendant.83 For example, if the patient, a
medical expert, fails to give the defendant-doctor information
needed to make an accurate diagnosis, the defendant may have
acted reasonably in light of his expectation that the patient would
provide full information. In such a case, the plaintiff’s fault might
allow a reduced recovery, but not if the defendant simply was not
negligent at all.84
Plaintiff Conduct That Is Not a Factual Cause of the Harm
No comparative fault defense when plaintiff is not a factual
cause. In some cases, the plaintiff may retain full recovery despite
the ordinary rule of comparative fault. For example, the plaintiff’s
comparative negligence is a defense only if the plaintiff’s
negligence is one of the but-for causes of the plaintiff’s harm or a
substantial factor in causing that harm, as both case law85 and
authorities note.86
Plaintiff Conduct That Causes Harm Outside the Scope of
Liability
No comparative fault defense when the harm falls outside
plaintiff’s scope of liability. The same rules of scope of liability that
apply on the issue of defendant’s negligence also apply on the issue
of plaintiff’s fault.87 For example, if the plaintiff is thought to be
negligent in mounting a slippery platform because she risks a slip
and a fall, that negligence does not bar recovery when the
defendant negligently causes a brick wall to fall on the plaintiff.88
The risk of slip and fall created by the plaintiff is not the risk that
eventuated, and therefore her fault is not within the scope of
liability and no bar to her recovery. On occasion the reverse
situation has been found: the plaintiff’s negligence is
391
considered a superseding cause so that the defendant is not

liable at all.89 Commentators have taken different views of the
propriety of this sort of ruling in comparative negligence systems.90
Torts Not Subject to Comparative Fault
No comparative fault defense based on the tort cause of action.
Another way in which comparative fault might be avoided between
plaintiff and defendant is that a court may conceptualize the case
as one about some tort such as fraud for which comparative fault
rules may not apply.91 Conceptualizing the case as a non-
negligence case might result in bypassing the comparative
negligence analysis, though some other torts may adopt more
stringent rules against the plaintiff.92
§ 16.6 Allocating Full Responsibility to the
Defendant in the Interests of Policy or Justice:
Plaintiff No-Duty Rules
Risk-taking plaintiff’s recovery not always reduced. Under
today’s comparative fault regimes, the risk-taking plaintiff does not
always suffer a reduction in damages. This is the case if the
plaintiff cannot reasonably foresee harm, or foresees harm but
takes reasonable steps to avoid it, or if the plaintiff is negligent but
her negligence is not a cause in fact of the harm, or the harm is not
within the scope of liability. In such cases, the plaintiff can recover
full damages because she is not negligent or has caused none of her
own harm.
Specific rules barring plaintiff fault defenses. Sometimes, courts
go further and erect rules of law that the plaintiff is not chargeable
with fault in particular situations. For instance, it has been held
that seamen cannot be charged with comparative fault for obeying
a work order or answering a specific call for help aboard ship93 and
that minors cannot be charged with comparative fault for failing to
protect themselves against sexual abuse.94
Restatement “plaintiff no-duty rules.” The Restatement Third of
Torts endorses the idea of policy and principle limits on
comparative fault defenses and leaves the category to common law
development,95 while also outlining some categories of cases in
which limits are particularly appropriate.96 These categories are
addressed in this section, with the exception of plaintiffs injured by
intentional tortfeasors, which is addressed
392
separately because of its long historical roots. Rules that relieve

the plaintiff of an obligation for reasonable self-care can be referred
to as “no-duty rules,” in an analogy to no-duty rules that are well
understood in the context of defendants.97
No-duty rules as the exception. Although principle and policy
reasons to limit comparative fault defenses may arise in a number
of different circumstances, they are still exceptions to the general
rule that the fault of the plaintiff is typically an issue for the jury
to resolve, particularly after the shift from contributory to
comparative.98 Moreover, while no-duty rules always aid a
defendant, plaintiff no-duty rules or other restrictions on the
comparative negligence defense may or may not assist a plaintiff.
That is so because when comparative fault cannot be assigned, the
jury may allow the plaintiff full recovery, or may provide her with
none at all.
Risks Allocated in Whole or in Part to Defendant
Principles and policies that may limit comparative fault
defenses. Although the term “plaintiff no-duty rules” is quite new,
first coming into general use with the Restatement Third of Torts,
judicial recognition of limits on plaintiff fault defenses is not new.
Commentators have noted some consistent and identifiable
principles or policies that have shaped limits to defenses based on
plaintiff fault.99
Plaintiff’s limited capacity. One factor that has sometimes
limited plaintiff fault defenses is the plaintiff’s incapacity for self-
care. For example, it would be unacceptable to say that a 14-
month-old who has not strapped himself into a safety seat100 or a
two-year-old who eats lead paint chips101 is guilty of comparative
fault. Although this conduct departs from an objective standard of
reasonable care, the departures are consistent with the limited
abilities of children.102 For this reason, the Restatement Third of
Torts adopts a rule precluding comparative negligence of a child
under age five and endorses a semi-subjective standard of care for
other children.103 Limits might also be appropriate for plaintiffs
with other demonstrated indicia of lack of capacity to care for
themselves as with the institutionalized elderly.104
Defendant’s superior knowledge or experience. Courts may also
limit comparative fault defenses when the parties are in a special
relationship and there are differentials in experience, knowledge or
control such that the defendant can take better care of the
plaintiff’s interests than can the plaintiff herself. For example, a
parent, if he owes a duty of care at all, should owe a duty to protect
the child against dangers arising from the child’s own foolishness
or mental limitations.105 A common carrier might owe a
393
special duty of care to protect a passenger from the effects of her

own known disabilities.106
Experience differentials: children and adult activities. In terms
of experience differentials, children are not expected to know how
to handle adult sexuality, but adults are. Consequently, a church
that is negligent in retaining a sexually abusive priest cannot
claim the comparative fault of the child who does not end the
abusive relationship.107 Nor can a teacher who has sexual contact
with a minor student plead the comparative negligence of the
minor, and this limit also applies to school officials who fail to use
care in selecting or supervising the teacher.108 Along the same
lines, when a defendant creates a risk that a child will take part in
adult activities that put the child herself at risk, the defendant
owes care to protect her.109
Knowledge differentials: doctors and patients. A special
relationship in which knowledge differentials are a factor in the
defendant’s superior ability to care for the plaintiff’s interests is
well illustrated by the relationship between doctors and patients.
Doctors may owe a duty to provide patients with material
information about the need for and risks of proposed operations.
Given the doctor’s duty and the patient’s corresponding right to
rely upon the doctor’s care, the doctor who advises a mastectomy
can hardly be permitted to defend his actions on the ground that
his patient was unreasonable in relying upon his advice.110
However, while a patient may not be required to evaluate medical
advice, a patient can be held negligent for other sorts of failures,
for example, failing to provide accurate information111 or failing to
take medicine as prescribed.112
Control of safety-related systems. Comparative fault defenses at
times may be limited in special relationship cases when defendants
have a greater ability to control systemic safety-related decisions
such that they are expected to guard against plaintiff lapses. So a
manufacturer of a punch press machine may be negligent in failing
to provide safety devices to prevent workers from carelessly
putting their hands under the press as it descends. Since workers’
predictable negligence in carrying out repetitive tasks is the very
thing the manufacturer should have protected against, to apply the
contributory negligence bar would be to negate the manufacturer’s
duty. Hence, some courts removed the contributory negligence bar
in such cases.113 It remains to be seen whether restrictions on the
plaintiff fault defense will apply when comparative fault
394
diminishes rather than denies the plaintiff’s recovery.114 When

the defendant is negligent because of violation of a statute meant
to protect the plaintiff from her own negligence or incapacity, for
example child labor acts or employee protection statutes, many
courts have not allowed a contributory negligence defense.115
Similarly, plaintiffs may not be charged with comparative fault for
failing to discover a product’s defect.116 And a pharmacist who
negligently dispenses the wrong prescription may not be able to
defend on the ground that plaintiff should have been able to find
the mistake by knowing the name of the prescription117 or the look
of the medication.118 However, some courts now deal with similar
matters, such as a doctor’s wrongful prescription of drugs to an
addicted adult or teen, through comparative negligence.119 And
though it might be said that bans on the sale of alcohol to minors
are for the protection of underage drinkers, some courts now
permit the underage drinker’s use of alcohol to count as
comparative fault.120 This may reflect the shift to comparative
negligence or perhaps the fact that the minor’s misconduct in these
cases is typically more than just negligent.
Custom or understanding. Customary practices, the
relationship of the parties, or their implicit understandings, may
operate to allocate some risks entirely to the defendant. A
pedestrian is not expected to wear a helmet against the possibility
that a driver may run him down. “The law normally does not
require duplicative precautions” in such a case,121 but instead
expects drivers to keep their vehicles off the sidewalk. Likewise, if
an employer owes a duty to provide a safe place to work, the
employee’s conduct should be evaluated in the light of that
expectation.122
Defendant’s duty to protect plaintiff from herself. At times, the
idea is expressed that the defendant’s duty is to protect the
plaintiff from her own negligence. A mental hospital that accepts a
suicidal patient suffering from emotional or mental problems
should exercise care to prevent suicide, and if it does not, may not
be able to defeat a claim for the patient’s death by suicide by
asserting that the patient was at fault,123 at least where the
patient is in the hospital’s physical custody.124 In such a case, the
hospital has
395
assumed the patient’s duty of self-care and, logically, cannot

thrust it back upon the disabled patient. The rule is not based
upon statute, or upon strict liability, but upon the principle that
the defendant has assumed a duty to protect the plaintiff from her
own dangerous propensities. While courts have also found that a
jailer who has custody of prisoners may owe them a duty to protect
against suicide as well as against others’ harms,125 the
comparative fault defense may be allowed more readily in this
setting.126
Defendant’s professional role and antecedent plaintiff fault. At
times the policies that commend the need for defendant care for
negligent plaintiffs stem from social or contractual understandings
about the defendant’s professional role. For example, if the
defendant is obliged to care for an injured plaintiff, the fact that
the plaintiff herself negligently caused her own initial injury or
need for treatment does not reduce the defendant’s liability for his
later negligent treatment and this is as true under comparative
fault as it was under contributory negligence.127 So even if the
plaintiff needed treatment because he caused the accident that
occasioned the need for treatment, the physician cannot reduce his
responsibility for negligent treatment of the patient’s injury on the
ground that the injury he undertook to treat came about in the
first place through the patient’s fault.128 This result can be
explained on the ground that the defendant has undertaken a duty
to use care in spite of the plaintiff’s (earlier) negligence and injury.
The Restatement Third of Torts expressly takes this view.129
396
Plaintiff in the exercise of her rights. In other cases, the plaintiff

is not to be charged with comparative fault. This can be true when
plaintiff is doing what she has a right to do. In the leading case,
the plaintiff was a landowner who stacked goods on his land near a
railroad track. The railroad negligently caused a fire and, when
sued for damage, argued that the plaintiff should be barred
because he could have stacked his goods farther from the track.
This argument was of no avail because the plaintiff’s risky conduct
was conduct he had a right to pursue.130
Autonomy and fundamental rights. Such cases can be viewed as
cases in which the plaintiff’s autonomy or citizenship rights permit
her to ignore reasonable self-care. These cases are limited. As
Professor Epstein points out, loss prevention efforts on both sides
are now commonly required.131 But some cases warrant a
recognition of the plaintiff’s overriding rights. It is surely
unacceptable to say that women are guilty of contributory
negligence if they venture out at night because they might be
raped,132 or that a homeowner is at fault if he lives near a golf
course where a negligent duffer can slice a ball into his eye.133
Similarly, based on recognition of fundamental rights, a court
might not permit a woman to be assigned comparative fault for
refusing to undergo an abortion,134 or for living in a first-floor
apartment as a single female.135
Prudential limits and normative clarity. Some comparative
fault defenses may be curbed because of prudential limits, for
example where litigant welfare might be harmed by blaming a
child victim for his sexual abuse.136 A related concern is that in
certain instances, clear normative statements may be desirable
and yet impaired by a percentage allocation of relative fault. This
is not only true in intentional tort cases, but also in more mundane
cases. For example, a court may be understandably reluctant to
allow a defense that a plaintiff, hit by a defendant who runs a
light, is to any degree negligent for going on green.137 Limits
placed on comparative fault defenses in the
397
conduct of a defendant guilty of an intentional or reckless tort

are separately discussed below as a traditional exception.
§ 16.7 Traditional Exceptions to the Contributory
Negligence Bar and Their Status Today
Exceptions and their current status. The regime of contributory
negligence which barred the negligent plaintiff’s recovery
altogether recognized at least three major exceptions to the rule.
Contributory negligence was not a defense i) when the defendant
had the last clear chance to avoid the injury or had discovered
plaintiff’s peril, ii) when the defendant committed an intentional or
reckless tort, and iii) when the defendant was under a duty to
protect the plaintiff, as discussed in the prior section. The main
question asked in most jurisdictions today is whether and to what
extent these exceptions survive the shift to comparative fault.
Last clear chance. A complicated exception to the contributory
negligence defense was called the last clear chance doctrine. In
these cases, the plaintiff negligently put herself in danger from
which she could not escape. The defendant then negligently caused
harm to the helpless plaintiff. The salient fact was that the
plaintiff could do nothing to save herself once she had put herself
in danger, but that the defendant could have avoided injury by
ordinary care.138 In such cases, the plaintiff’s earlier contributory
negligence would be no bar.139 The original case involved a
plaintiff who had tied his donkey in the road, where it stood eating
grass when the defendant negligently ran into it. The plaintiff was
not on hand to free the animal and it could not escape. The
plaintiff’s negligence was no bar to recovery because the defendant
had the “last clear chance” to prevent the accident.140
Discovered peril. Some jurisdictions modified the last clear
chance exception, applying a version known as the discovered peril
rule. The discovered peril rule held that the exception would not
apply unless the defendant actually discovered the plaintiff’s
helpless condition and was negligent thereafter in failing to avoid
injury.141 The difference between this rule and the last clear
chance version is that under the latter, the exception can be
invoked not only when the defendant actually discovered the
danger but also when he should have done so in the exercise of
reasonable care.
Dropping last clear chance and discovered peril in comparative
fault regimes. Although some recent analysis focuses on care in
sequential decisions to reach optimal levels of precaution,142 the
last clear chance doctrine has been widely regarded as a judicial
effort to ameliorate the harsh bar of contributory negligence. Given
that view, it is no surprise that once comparative negligence
systems were adopted, the last clear chance doctrine was almost
always discarded,143 either legislatively144 or judicially.145
398
The Restatement Third of Torts has also taken the position that
the rule should be abolished in comparative fault systems.146
Contributory negligence not a defense to intentional or reckless
tort. Contributory negligence of a plaintiff was never a defense to
claims for intentionally inflicted harm.147 By extension, courts
came to hold that negligence of the plaintiff was no defense if the
defendant was guilty of willful or wanton or reckless
misconduct.148 However, if the plaintiff, as well as the defendant,
was guilty of reckless or wanton misconduct, the plaintiff’s claim
was barred.149
Reasons for the rule. Many intentional torts involve an intent to
harm, or at least offend. Reckless torts involve “utter indifference
to or conscious disregard for the safety of others.” Reckless torts
border on intentional wrongdoing because they involve a bad state
of mind, as well as risky conduct. Contributory negligence was not
allowed because it would seem to justify in part that wrongdoing.
To say, as one court did, that a gang rape was in part attributable
to the rapists intentional tort and in part attributable to a 13 year
old’s willingness to go with the boys to drink beer is to shift
responsibility for rape from rapist to rape victim.150 The same
would be true with contributory fault in other intentional and
reckless torts.
Reasons for retaining the rule under comparative fault. It is
morally appealing to think that each person should bear some
accountability for his or her own fault, whether that fault is
grounded in intent or in negligence. Yet the measure of liability
should not be divorced from the basis for that liability and the
rules must apply the fault comparison in ways that can be
rationally evaluated by reviewing judges. Although it has been
argued that negligence and other kinds of fault are not truly
different except in degree and that negligence can thus be
compared with other kinds of fault,151 the similarity between
negligence and intentional wrongdoing seems to appear mainly at
high levels of abstraction. In negligence claims, risks and utilities
may be difficult to estimate, but we know what we are estimating.
Intent—its clarity and intensity, its moral quality, and its roots in
personal failure, tragedy, misapprehensions, or cultural ideals—
would be very hard to weigh on a scale comparable to the risk-
utility scale in negligence cases. Such difficulties open the door to
highly subjective and variable judgments. Biased judgments would
be difficult or impossible to detect and review on appeal in the
absence of a firm standard for comparison.
Right to engage in conduct. Moreover, the risk-taking plaintiff
may have some sort of privilege or right. For example, the plaintiff
has a right to walk on the street, even if there is a constant danger
that she will be attacked by an intentional wrongdoer. In such
399
cases, an attacker could scarcely hope to reduce the plaintiff’s

recovery on the ground that she should have remained locked in
her house.152 Courts may find that the plaintiff in particular cases
had no duty to protect herself against an intentional tort.153
Current status of the defense. Most courts dealing with the
question of plaintiff negligence as a defense to intentional torts
have carried the ban on the defense over to the regime of
comparative negligence, holding or assuming that the plaintiff’s
comparative fault cannot be used to reduce the liability of an
intentional tortfeasor.154 Statutes in some states with comparative
apportionment codify the common law rule so that the plaintiff’s
damages are not reduced when the defendant’s liability is based on
either recklessness or an intentional tort.155 Under this view, if the
defendant batters the plaintiff, the plaintiff’s negligence in
taunting the defendant does not reduce the plaintiff’s damages.156
In fact, few cases so far seem to have reduced a personal injury
defendant’s liability for his own intentional wrongdoing merely
because the plaintiff was guilty of contributory negligence.157 The
Restatement Third suggests that in jurisdictions that permit
apportionment of liability, a plaintiff “no-duty rule could be the
basis for eliminating the victim’s carelessness from consideration”
in a suit against the intentional tortfeasor.158 If the defense of
comparative fault were permitted as a defense
400
to an intentional tort, low culpability intentional torts159 or

high-culpability plaintiff fault would seem the most innocuous
areas for comparison.160
Defendant recklessness and plaintiff fault. There is somewhat
more ambiguity concerning plaintiff fault as a defense to
recklessness. The Uniform Comparative Fault Act required
comparison of the plaintiff’s negligence with the defendant’s
reckless or wanton misconduct, so long as that misconduct fell
short of an intentional tort.161 Some cases agree,162 at least where
the facts of the particular case make the reckless conduct more like
negligence than intent.163 But some cases go the other way,
allowing an unreduced recovery by the plaintiff when the
defendant is chargeable with reckless or wanton misconduct.164
Defendant’s duty to protect against plaintiff’s risky conduct. In
some cases, either by statute or common law, the defendant is
under a duty to use reasonable care to protect the plaintiff from
her own weakness, incapacity, or fault. When the plaintiff is
harmed because the defendant breaches that duty of care, the
defendant cannot defend on the ground of contributory negligence,
since that was the very thing he was obliged to prevent. Another
way to state essentially the same idea is to say that what counts as
contributory negligence is determined largely by the scope of the
defendant’s duty.
Statutes. One group of cases derives from a statutory duty to
protect the plaintiff. Contributory negligence is no defense at all if
the defendant violates a statute intended to protect the plaintiff
from his own negligence or incapacity. Courts sometimes say that
such statutes impose strict liability.165 Child labor acts are good
examples. If a minor is injured while employed in violation of such
a statute, his claim is not to be defeated by his contributory
negligence, becausethe purpose of the statute is to protect him
from the risks of his own incapacity and negligence.166
401
Protecting vulnerable classes. The rule depends upon

construction of individual statutes as intended to protect “persons
from their own inexperience, lack of judgment, inability to protect
themselves or to resist pressure, or tendency toward negligence.”
The most likely candidates are perhaps those statutes aimed at
protecting children, and others under a disability,167 and those
aimed at protecting workers from on-the-job risks they cannot
avoid.168 Statutes prohibiting the sale of dangerous articles like
guns,169 alcohol,170 or drugs171 have sometimes been treated in the
same way, so that the buyer may be allowed, in some instances, to
recover from the seller in spite of the buyer’s own contributory
fault. These holdings may172 or may not173 survive the adoption of
comparative fault and several liability.
Common law. In the absence of statute, courts are of course free
to impose duties that require defendants to protect vulnerable,
incapacitated, or minor plaintiffs from their own inability to
protect themselves. One excellent example is the case of a plaintiff
who, because of mental or physical disability is under the
defendant’s care. For example, a suicidal patient suffering from
emotional or mental problems may expect a hospital to use
reasonable care to prevent her suicide, and if it does not, it may not
be able to defeat the patient estate’s claim by asserting that the
patient was negligent.174 In this setting too, the question of
whether the holdings survive comparative fault is unclear.
C. RELATED DOCTRINES AND SPECIAL CASES
Principle of the rule. People should not profit from their own
wrongs. Courts in scores and scores of cases have said that this is a
basic principle of law. Although its roots reach into restitutionary
law, its principle has been invoked in a variety of cases, but
selectively.175 Many cases that invoke the principle would be
decided the same way, even if no such principle existed. The robber
and the burglar cannot complain if they are
402
harmed when the victim reasonably defends himself, but the

victim’s privilege suffices to explain that result without resort to
any special privilege or immunity.176
The doctrine. In some cases, courts have extended the principle
that people should not profit from their wrongs to mean that a
plaintiff who suffers a tortious injury as a result of her own
seriously177 illegal or immoral act cannot recover from the
tortfeasor who owes her a duty of care.178 A similar idea can be
found in a number of cases in which courts conclude that as a
matter of law, the negligence of the plaintiff is greater than that of
the defendant.179
Tension between an all-or-nothing bar and comparative fault.
Before the adoption of comparative negligence systems, it would
not have mattered whether the court invoked the immoral plaintiff
principle or the contributory negligence bar, because both would
have barred the plaintiff’s recovery. After the adoption of
comparative negligence, however, a rule that bars the claim of the
immoral plaintiff is in tension with comparative negligence, which
would only reduce damages.180 The immoral acts rule may be
rejected on this basis.
An example. In Barker v. Kallash,181 the 15-year-old plaintiff
was making a pipe bomb with ingredients furnished by the
defendant. The bomb exploded, causing injury to the plaintiff.
Instead of reducing the plaintiff’s recovery under comparative
negligence rules, the court denied recovery altogether. It concluded
that when “the plaintiff’s injury is a direct result of his knowing
and intentional participation in a criminal act he cannot seek
compensation for the loss, if the criminal act is judged to be so
serious an offense as to warrant denial of recovery…. Thus a
burglar who breaks his leg while descending the cellar stairs, due
to the failure of the owner to replace a missing step cannot recover
compensation from his victims.” Although the comparative
negligence statute on its face seemed to govern and to permit the
plaintiff to proceed subject to a reduction in damages, the court
thought that the immoral plaintiff principle required dismissal of
the claim altogether. Similarly, Michigan has held that one injured
by drugs obtained from a
403
pharmacist without a valid prescription has no claim against

the pharmacist for injuries that follow.182
Reliance on reprehensibility. These cases rest on the idea that
courts can identify some particularly reprehensible conduct that
ought to outlaw the plaintiff who commits it, even if such a ruling
protects a person who has negligently harmed the plaintiff. Some
cases deserve to be dealt with in that way, but perhaps not cases in
which the defendant is as much at fault as the plaintiff.183 A
number of cases limit the immoral plaintiff principle.184
Statutory version. The immoral plaintiff rule may be
approximated by statute.185 In an Arizona case, a statute provided
that the defendant would not be liable for harms he caused by his
negligence or even his gross negligence while the plaintiff was
committing a crime.186 The court concluded that the statute was
equivalent to a provision that the criminal plaintiff was assuming
the risk of negligence as a matter of law and held that it violated
the state’s constitutional provision leaving assumed risk and
contributory negligence to the jury in all cases.187 Thereafter, the
state’s constitutional law was amended by referendum.188
The avoidable consequences/mitigation of damages rule. The
main rule of avoidable consequences denies the plaintiff a recovery
for negligently inflicted damages that she could have avoided or
minimized by reasonable care or expenditure.189 Another
important rule is that the plaintiff can recover the reasonable costs
she incurs in seeking to minimize damages.190 As with other
defenses, the burden is on the defendant to prove that the plaintiff
failed to mitigate damages.191
An example. An example of the avoidable consequences rule is
that the plaintiff who unreasonably delays in obtaining medical
attention for her injury, or who unreasonably refuses to follow
medical advice, cannot recover for exacerbation of the injury
caused by her own delay or refusal.192 The defendant must prove
not only that the plaintiff’s post-injury193 conduct was
unreasonable, but also that such conduct was a cause-in-fact of
404
harm that otherwise would have been avoided,194 and

sometimes proof of actual cause requires expert testimony.195
When unreasonable conduct that caused harm is proved, the
plaintiff’s recovery is reduced by the damages she could reasonably
have avoided, but the plaintiff’s claim itself is not barred.196 For
example, if the plaintiff unreasonably failed to take antibiotics
after the defendant caused her injury, and her failure to do so
necessitated four weeks of hospital care that otherwise would not
have been required, the avoidable consequences rule would relieve
the defendant of all liability for the added hospitalization.197
Application of the two systems. The avoidable consequences
approach to apportionment does not yield the same results as the
comparative negligence apportionment except by happenstance.
Suppose that the plaintiff’s damages were $100,000 and that the
plaintiff’s fault was 5% of the total. Under a comparative fault
approach, the plaintiff’s award would be reduced by 5% so that she
would recover $95,000. Now suppose that the plaintiff’s only fault
was her failure to take antibiotics after the injury was inflicted and
that this failure aggravated her injury and necessitated additional
hospitalization costing $10,000. If we think of the plaintiff’s fault
as comparative negligence amounting to 5%, she will recover
$95,000. But if we think of it as a failure to minimize damages, the
avoidable consequences rule will allow her to recover only $90,000.
§ 16.10 The Role of Avoidable Consequences in
Comparative Fault Regimes
Which rule applies? With the adoption of comparative fault
regimes in most states, the remaining role of the avoidable
consequences or mitigation of damages approach has been called
into question. In many instances, it is not possible to identify
distinct avoidable consequences, so that no causal apportionment is
possible, and comparative fault represents the only possible
method for apportionment. For example, it is seldom possible in
highway accidents to say that the plaintiff’s broken leg is a result
of the defendant’s fault, but that the plaintiff alone is responsible
for her broken arm. Comparative fault apportionment is
particularly well suited when causal apportionment is not possible.
The options. When causal apportionment is possible, as where
the plaintiff’s failure to follow medical advice makes her injuries
worse, adoption of comparative fault rules leaves courts with
several basic options, on which complex variations can be
imagined.
405
(1) Comparative negligence principles absorb the avoidable

consequences rule. If the plaintiff and defendant are both culpable
causes of the plaintiff’s injury,198 apportionment of responsibility is
made entirely under comparative fault rules; mitigation or
avoidable consequences rules are dropped altogether. Some courts
may take this approach.199 Statutes,200 including the Uniform
Apportionment of Tort Responsibility Act,201 may lend support for
this approach by defining fault to include failure to minimize
damages.
The total comparative fault approach has some problems. First,
the percentage of overall fault the jury allocates to the plaintiff
might not correspond with the discrete portion of harm she caused.
Second, when the plaintiff is chargeable with fault in causing an
indivisible harm and also with fault in causing some divisible and
isolated item of harm, the complexities become quite difficult.202 A
third possible problem results from the fact that by combining the
plaintiff’s fault in causing the accident with her fault in failing to
minimize damages, the court may be required to bar the plaintiff’s
claim altogether under the modified systems of comparative fault.
(2) Applying avoidable consequences rule to post-injury
conduct. Some courts hold that the plaintiff’s negligence is counted
as comparative negligence if it contributed to the initial injury. But
these courts go on to hold that the plaintiff’s failure to minimize
damages after the injury has occurred is a matter of the avoidable
consequences rule, to be causally apportioned where possible.203
Under this rule, the plaintiff who fails to use a safety device like a
seatbelt is not chargeable with comparative negligence, because
failure to use the seatbelt did not cause the accident. Equally, she
is not subject to the mitigation rules because the failure to use the
seatbelt occurred before rather than after injury.204
This solution may be criticized on the ground that at least on
some occasions the plaintiff’s pre-injury fault can cause a separate
and identifiable element of harm. Indeed, when continuing conduct
is involved, it may not even be reasonably possible to know what is
“before” and what is “after.”205 The picture is also more
complicated when injury
406
occurs long after the defendant’s negligent conduct, as may be

the case with either medical malpractice or defective products.206
(3) Applying avoidable consequences rule to discrete items of
harm. Some courts reject the first two approaches. They apply
comparative fault apportionment unless the plaintiff’s pre-injury
fault caused some particular item of damage to which causal
apportionment principles could be applied.207 Under the view of
these cases, if the plaintiff suffers added injury in an auto collision
because she failed to wear a seatbelt, these courts invoke the
avoidable consequences or mitigation of damages rule to bar
recovery for the added injuries. They do so even though the
plaintiff’s fault occurred before rather than after the injury. In
such cases, the defendant must prove that the plaintiff was at fault
and that some identifiable items or amounts of harm resulted from
that fault. In addition, it must appear that the separate items of
harm should justly be borne entirely by the plaintiff rather than
apportioned between the parties. If the defendant cannot identify
separate items of harm, then the avoidable consequences rule is
inappropriate.208
(4) Restatement of apportionment. The Restatement of
Apportionment supports a combination rule. First, the defendant is
fully liable without reduction for all injuries that he alone caused.
Second, injury resulting both from the defendant’s negligence and
the plaintiff’s failure to mitigate is seen to be itself an indivisible
injury which must be apportioned on the rules of comparative fault
rather than the rules of avoidable consequences.209 For example,
the defendant negligently breaks the plaintiff’s leg without any
fault of the plaintiff. For that, the defendant is fully responsible. If
the plaintiff then has an additional medical expense because she
failed to take antibiotics prescribed, that additional expense is a
result of the combined fault of the defendant, whose negligence
created the need for antibiotics, and the plaintiff, for failure to take
her medication. As to the additional medical expense, comparative
fault apportionment is used.210 The seatbelt cases discussed in the
next section raise similar possibilities.
§ 16.11 Comparative Fault or Avoidable
Consequences in Seatbelt and Other Safety
Precaution Cases
Seatbelts and contributory or comparative negligence. In the
light of safety factors involved, the plaintiff’s failure to wear an
available seatbelt or safety harness may be quite unreasonable.
Today, with pervasive seatbelt use and statutes requiring it,
failure
407
to wear a seatbelt certainly could count as comparative fault.211

However, this result is barred by many state statutes.212
Historically, courts mostly held that failure to wear a seatbelt did
not count as contributory negligence to bar the entire claim.213 In
part, this holding was based on the fact that failure to use a
seatbelt does not normally cause injuries in the initial impact, only
injury from a “second collision” when the unbelted plaintiff is
thrown out of the car or against an object in the car.
Seatbelts: avoidable consequences and comparative negligence.
When comparative fault is not allowed, other methods for reducing
the plaintiff’s damages have been permitted in seatbelt cases. One
method for reduction is to use the avoidable consequences or
mitigation of damages rule, eliminating altogether the portion of
the plaintiff’s damages that the defendant proves could reasonably
have been avoided by use of a seatbelt, but otherwise allowing the
plaintiff’s claim. A fair number of courts have authorized such
reductions in the plaintiff’s damages214 based upon the avoidable
consequences215 or comparative fault rules.216
Capped reduction. One solution to the comparative negligence
complexities might be an arbitrary statutory reduction at a fixed
percentage. Several states have authorized a comparative
negligence reduction with an arbitrary limit providing that the
reduction may not exceed a specified small percentage figure, such
as 5%.217 Another legislative approach admits seatbelt non-use
evidence to mitigate pain and suffering damages but not others.218
408
Barring all reduction. Judges have held in many states that the
award is not to be reduced either under comparative fault or
avoidable consequences rules219 and legislation now so provides in
most states. Indeed, some of the statutes broadly exclude
admission of evidence about seatbelt non-use for any purpose,220
and some even relieve adults of liability to a child when the adult
negligently fails to utilize child restraint systems.221 However,
courts applying these absolute exclusions do not necessarily view
them as just.222 Difficulties are particularly salient in automobile
design defect cases,223 and some states allow evidence of seatbelt
non-use in products liability actions.224 At times, jurisdictions also
allow evidence regarding non-use of a seatbelt for some types of
purposes other than comparative fault or mitigation of damages.225
Other pre-injury safety precautions. Many non-seatbelt cases fit
the seatbelt pattern and may involve similar issues.226 For
example, the virtually identical problem of the cyclist who fails to
wear a helmet has already arisen and been treated to the same
split of common law authority that governs seatbelts.227 Many
other cases could exhibit the same essential characteristics of a
pre-injury failure of care that causes discrete, divisible harm.228
________________________________
1 Butterfield v. Forrester, 11 East. 59, 103 Eng. Rep. 926 (1809).
See, explaining some interpretations, Dan B. Dobbs, Accountability and
Comparative Fault, 47 La. L. Rev. 939 (1987); Wex S. Malone, Comment
on Maki v. Frelk, 21 Vand. L. Rev. 930 (1968).
2 See Restatement Second of Torts § 494 (1965). The spouse of an
injured person, for example, may have a claim for loss of consortium or
society, but it is commonly regarded as derivative and barred to the extent
the injured person herself would be barred. For a discussion of negligence
imputed to the plaintiff on derivative claims under comparative fault, see
Restatement Third of Torts (Apportionment of Liability) § 6 (2010).
3 E.g., McSwane v. Bloomington Hosp. & Healthcare Sys., 916
N.E.2d 906 (Ind. 2009) (patient who was killed on her way home from
hospital by her ex-husband was guilty of contributory negligence as a
matter of law for leaving the hospital with abusive former husband);
Dunleavy v. Miller, 116 N.M. 353, 862 P.2d 1212 (1993).
4 See Dan B. Dobbs, Accountability and Comparative Fault, 47 La.
L. Rev. 939, 943 (1987).
5 Restatement Third of Torts (Apportionment of Liability) § 17 at
151–59 (2000).
Harm) § 3 (2010).
Emotional Harm) § 3 cmt. b (2010); Restatement Third of Torts
(Apportionment of Liability) § 3 cmt. a (2000).
9 Traditionally, a duty is enforceable by a legal action. The
defendant has no legal action for breach of a plaintiff’s duty to care for
herself. Nevertheless, it may be convenient to use the duty locution. You
can say (a) that in general, the plaintiff owes a duty to use reasonable care
for her own safety, a duty enforceable by a reduction in or a bar to her
damages recovery; and (b) in some cases, parallel to negligence analysis,
the plaintiff owes “no duty” to protect herself. The latter cases can be
addressed by saying that the plaintiff has a right or liberty to rely entirely
upon the defendant for care in some instances. Plaintiff “no duty” can be
seen as a way of talking about the scope of the defendant’s duty to protect
the plaintiff against her own risky conduct or a way of asserting that the
plaintiff has a correspondingly broad right. These cases are discussed in §§
16.6–16.7.
Emotional Harm) § 7 cmt. h (2010) (“[C]ases arise in which courts hold
that a plaintiff’s recovery should not be affected by the plaintiff’s own
negligent conduct. Just as special problems of policy may support a no-
duty determination for a defendant, similar concerns may support a no-
duty determination for plaintiff negligence”); Restatement Third of Torts
(Apportionment of Liability) § 3 cmt. d (2000).
11 See Larchick v. Diocese of Great Falls-Billings, 208 P.3d 836
(Mont. 2009) (no evidence that hit with lacrosse stick was anything other
than incidental conduct during a P.E. activity); Harmon v. Washburn, 751
N.W.2d 297 (S.D. 2008) (as a matter of law plaintiff was not negligent to
pass another car on a bridge in a legal passing zone, so trial court should
not have permitted comparative fault); RGR, LLC v. Settle, 764 S.E.2d 8
(Va. 2014) (plaintiff not contributorily negligent as a matter of law where
alleged alternative conduct would have placed him in even greater peril).
12 Phillips v. United States, 743 F.Supp. 681, 686–87 (E.D. Mo. 1990)
(holding that evidence regarding plaintiff’s attempts to merge into heavy
traffic was insufficient to warrant jury instruction on contributory
negligence); Marple v. Sears, Roebuck & Co., 505 N.W.2d 715, 717–18
(Neb. 1993).
13 See, e.g., Basham v. Hunt, 332 Ill. App. 3d 980, 773 N.E.2d 1213
(2002) (“A plaintiff is contributorily negligent when he acts without that
degree of care which a reasonably prudent person would have used for his
own safety under like circumstances”); Pleiss v. Barnes, 260 Neb. 770, 619
N.W.2d 825 (2000); Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748 (2002).
15 Richard Wright, Negligence in the Courts: Introduction and
Commentary, 77 Chi.-Kent L. Rev. 425 (2002).
16 Brock v. Peabody Coop. Equity Exch., 186 Kan. 657, 352 P.2d 37
(1960); Kimble v. Carey, 279 Va. 652, 691 S.E.2d 790 (2010). Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 32 cmt. d
(2010).
17 Some courts, however, treat the rescue doctrine as a partial
immunity that entirely relieves the plaintiff of responsibility for her own
fault unless the plaintiff’s actions are in bad faith or willful or wanton. See
Ouellette v. Carde, 612 A.2d 687 (R.I. 1990); Kimble v. Carey, 279 Va. 652,
691 S.E.2d 790 (2010).
18 See Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202
(Alaska 1996); Henson v. Klein, 319 S.W.3d 413 (Ky. 2010).
19 E.g., Russell v. Mathis, 686 So. 2d 241 (Ala. 1996) (plaintiff’s
violation of statute contributory negligence per se). Restatement Third of
Torts (Liability for Physical and Emotional Harm) § 14 (2010) (applying
negligence per se rules to “an actor” whether plaintiff or defendant, and
using both parties in comment illustrations).
20 See § 16.6.
21 See Brandon v. County of Richardson, 624 N.W.2d 604, 627 (Neb.
2001); Townsend v. Legere, 688 A.2d 77 (N.H. 1997); Rascher v. Friend,
279 Va. 370, 689 S.E.2d 661 (2010) (issue of whether the plaintiff could
have avoided the accident if he had not looked down at his speedometer
was one for the jury). See also Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 26 cmt. m (2010) (“The same rules for
factual cause that apply to defendants’ tortious conduct also apply to
determine whether a plaintiff’s contributory negligence is a factual cause
of harm suffered by the plaintiff.”).
22 See Skinner v. Ogallala Pub. Sch. Dist., 631 N.W.2d 510, 526
(Neb. 2001) (upholding lower court ruling against comparative fault in a
case in which plaintiff failed to turn on the lights but defendant left open a
trap door in a school classroom); Dan B. Dobbs, Accountability and
Comparative Fault, 47 La. L. Rev. 939, 956 (1987) (positing a similar
scenario); Restatement Third of Torts (Apportionment of Liability) § 4
(2000) (“[T]he defendant also has the burden to prove that the plaintiff’s
negligence, if any, was a legal cause of the plaintiff’s damages.”).
Emotional Harm) § 29 cmt. m (2010) (“The rules contained in this Section
regarding the scope of liability for tortious conduct are the same for
determining when a plaintiff’s contributory negligence will reduce the
recovery based on comparative responsibility.”).
24 Botelho v. Caster’s, Inc., 970 A.2d 541 (R.I. 2009); Johnson v.
Matthew J. Batchelder Co., 779 N.W.2d 690 (S.D. 2010).
25 See Martishius v. Carolco Studios, Inc., 355 N.C. 465, 562 S.E.2d
887 (2002); Estate of Moses ex rel. Moses v. Sw. Va. Transit Mgmt. Co.,
273 Va. 672, 643 S.E.2d 156 (2007); Louk v. Isuzu Motors, Inc., 198 W.Va.
250, 479 S.E.2d 911 (1996).
26 E.g., Phillips v. Fujitec Am., Inc., 3 A.3d 324 (D.C. 2010)
(summary judgment on issue of contributory negligence when plaintiff who
was stuck in an elevator tried to get out between floors although she was
told she should stay put and that help was on the way).
27 Mangold v. Ind. Dep’t of Nat’l Res., 756 N.E.2d 970 (Ind. 2001)
(12-year-old striking shotgun shell after allegedly misleading or
inadequate explanation of shells by defendants); Niskanen v. Giant Eagle,
Inc., 122 Ohio St.3d 486, 912 N.E.2d 595 (2009) (fault of patron who
shoplifted groceries was greater than fault of grocery store that failed to
train employees adequately and killed patron in struggle); Peters v.
Menard, Inc., 589 N.W.2d 395 (Wis 1999).
28 Phillips v. Seward, 51 So.3d 1019 (Ala. 2010); Hayes v. Price, 313
S.W.3d 645 (Mo. 2010) (“[N]o evidence that a reasonable driver could or
should have seen any indication of a danger at a time that would allow
him to have the means and ability to use an evasive action to avoid the
collision” and therefore reversing 20% assignment of fault to plaintiff.);
Klutman v. Sioux Falls Storm, 769 N.W.2d 440 (S.D. 2009).
29 See Gary T. Schwartz, Mixed Theories of Tort Law: Affirming
Both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801, 1828 (1997)
(noting that harms to self do not give rise to the same moral indignation as
harms to others).
30 For the semi-subjective standard, see Richard Wright, The
Standards of Care in Negligence Law in Philosophical Foundations of Tort
Law 249 (David G. Owen ed., 1997). For the idea that risks to self should
be given more latitude, see Ellen M. Bublick, Comparative Fault to the
Limits, 56 Vand. L. Rev. 977, 1029–34 (2003); Gary T. Schwartz,
Contributory and Comparative Negligence: A Reappraisal, 87 Yale L.J.
697 (1978).
31 Cf. Brock v. Peabody Coop. Equity Exch., 186 Kan. 657, 352 P.2d
37 (1960) (mother attempting to enter vat-like warehouse filled with
cyanide to rescue child was not necessarily guilty of contributory fault).
32 E.g., Boomer v. Frank, 993 P.2d 456, 460 (Ariz. Ct. App. 1999);
Brawner v. Richardson, 57 Or. App. 178, 643 P.2d 1365 (1982); Thompson
v. Michael, 433 S.E.2d 853 (S.C. 1993).
33 See § 10.14.
34 See Madison by Bryant v. Babcock Ctr., Inc., 638 S.E.2d 650 (S.C.
2006) (plaintiff with mental capacity of 10-year-old to be judged by
“behavior to be expected of a person of like age, intelligence, and
experience under like circumstances,” apparently on the question of
determining whether the defendant caregiver exercised due care); Dodson
v. S.D. Dep’t of Human Servs., 703 N.W.2d 353 (S.D. 2005) (patient of
defendant mental health care providers committed suicide, reversing
judgment on jury verdict that found defendants negligent in failing to
prevent suicide but barring the plaintiff for contributory negligence).
35 Dan B. Dobbs, Accountability and Comparative Fault, 47 La. L.
Rev. 939 (1987).
36 See Henry Woods & Beth Deere, Comparative Fault § 4.5 (3d ed.
1996). South Dakota still has a statutory variation on this scheme.
37 See Thomas J. Schoenbaum, Admiralty and Maritime Law, § 14–1
(4th ed. 2004). Admiralty now allocates liability in proportion to fault.
United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44
L.Ed.2d 251 (1975).
38 45 U.S.C. § 53 (2012). The plaintiff’s negligence still reduces
rather than bars a worker’s recovery under the FELA. See CSX Transp.,
Inc. v. Begley, 313 S.W.3d 52 (Ky. 2010).
39 E.g., the Jones Act, 46 U.S.C. § 30104 (2012) (adopting rule of
FELA for seamen).
40 Victor E. Schwartz, Comparative Negligence § 1.04(b) (4th ed.
2002).
41 Hoffman v. Jones, 280 So. 2d 431, 78 A.L.R.3d 321 (Fla. 1973).
42 See Jarrett v. Woodward Bros., Inc., 751 A.2d 972 (D.C. 2000)
(recognizing contributory negligence as a complete defense but not in cases
where the defendant violated a statute aimed at protecting the plaintiff
from his own fault).
43 See, e.g., QORE, Inc. v. Bradford Bldg. Co., 25 So.3d 1116, 1126
(Ala. 2009) (“A plaintiff who negligently contributes to his own injury
cannot recover in a negligence action, notwithstanding a showing that the
defendant was also negligent.”).
44 See Coleman v. Soccer Ass’n of Columbia, 69 A.3d 1149 (Md. 2013)
(preserving all-or-nothing contributory negligence rule in light of
legislative failure to pass bills modifying it); Warsham v. James
Muscatello, Inc., 189 Md.App. 620, 985 A.2d 156, 167 (2009)
(“[C]ontributory negligence, if proved, is a complete defense that bars a
plaintiff’s recovery in a negligence action.”).
45 See, e.g., Crawford v. Mintz, 673 S.E.2d 746, 749 (N.C. Ct. App.
2009) (“In North Carolina, a finding of contributory negligence poses a
complete bar to a plaintiff’s negligence claim.”).
46 E.g., O’Neill v. Windshire-Copeland Assocs., L.P., 267 Va. 605, 595
S.E.2d 281 (2004) (contributory negligence a complete defense even though
defendant violated building code).
47 See Victor E. Schwartz, Comparative Negligence § 1.05(e)(3) (4th
ed. 2002).
48 In Indiana, contributory rather than comparative negligence still
applies to recovery against government actors and medical malpractice
cases. See Clay City Consol. Sch. Corp. v. Timberman, 918 N.E.2d 292
(Ind. 2009); Bruce D. Jones, Unfair and Harsh Results of Contributory
Negligence Lives in Indiana: The Indiana Medical Malpractice System and
the Indiana Comparative Fault Act, 6 Ind. Health L. Rev. 107 (2009).
49 Canada: Allen M. Linden & Bruce Feldthusen, Canadian Tort
Law, 493–94 (8th ed. 2006); England: See W.V.H. Rogers, Winfield &
Jolowicz on Tort 363–64 (18th ed. 2010).
50 A.M. Honoré, Causation and Remoteness of Damage, in XI
International Encyclopedia of Comparative Law, Torts, ch. 7, § 146 (1985),
reflects variations. For detailed case studies of contributory negligence in
Europe, see European Centre for Tort and Insurance Law, Research Unit
for Europe, Unification of Tort Law: Contributory Negligence (2004).
51 As to the inclusion of torts other than negligence, see Chapter 35.
52 Restatement Third of Torts (Apportionment of Liability) § 17 at
151 to 159 (2000); Victor E. Schwartz, Comparative Negligence § 2.01(a)
(4th ed. 2002); Henry Woods & Beth Deere, Comparative Fault § 1.11 (3d
ed. 1996).
53 E.g., N.H. Stats. Ann. § 507:7–d (plaintiff can recover if her
negligence is “not greater than the fault of the defendant”).
54 E.g., Ark. Code Ann. § 16–64–122.
55 Lake v. D & L Langley Trucking, Inc., 233 P.3d 589 (Wyo. 2010).
Appellate decisions and practical experience both reveal that jurors do not
shy away from attributing high percentages of negligence to plaintiffs in
many cases in spite of terrible injuries. E.g., Wassell v. Adams, 865 F.2d
849 (7th Cir. 1989) (victim of rape at under-secured motel, jury charged
plaintiff with 97% of the negligence); Hamilton v. Oppen, 653 N.W.2d 678
(N.D. 2002) (plaintiff slipped into auger, which ground his leg to
“hamburger,” jury finding that he was chargeable with 60% of the
negligence barred his claim).
56 William L. Prosser, Comparative Negligence, 41 Cal. L. Rev. 1, 25
(1953).
57 Kaatz v. State, 540 P.2d 1037 (Alaska 1975); Li v. Yellow Cab Co.
of Cal., 13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr. 858 (1975); Hoffman
v. Jones, 280 So. 2d 431 (Fla. 1973); Placek v. City of Sterling Heights, 405
Mich. 638, 275 N.W.2d 511 (1979). See also United States v. Reliable
Transfer Co, Inc., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975)
(admiralty damages to be allocated in proportion to fault).
58 45 U.S.C.A. § 53.
59 Restatement Third of Torts (Apportionment of Liability) § 17
rptr.nt. (2000).
60 Such extreme findings are rare, but in Wassell v. Adams, 865 F.2d
849 (7th Cir. 1989), the jury attributed 97% of the negligence to the
plaintiff. Under the complete comparative negligence system then
controlling in Illinois, the plaintiff recovered $25,500 out of her $850,000
damages. See also Cabral v. Ralphs Grocery Co., 51 Cal. 4th 764, 122 Cal.
Rptr. 3d 313, 248 P.3d 1170 (2011) (affirming jury verdict that fixed 90% of
responsibility on plaintiff and 10% on defendant); Mulhern v. Catholic
Health Initiatives, 799 N.W.2d 104 (Iowa 2011) (affirming a judgment
where jury fixed 90% of the fault on plaintiff and 10% on defendant).
61 See Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981) (advocating
a pure system which was later supplanted by legislation).
62 Compare Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622,
912 N.E.2d 458 (2009) (court has discretion about whether to tell jurors
about consequences of assignment of percentages of comparative
negligence), with Sollin v. Wangler, 627 N.W.2d 159 (N.D. 2001) (jury
should be informed about consequences of its verdict).
63 Placek v. City of Sterling Heights, 405 Mich. 638, 661, 275 N.W.2d
511, 519 (1979). See also Li v. Yellow Cab Co. of Cal., 13 Cal. 3d 804, 827,
532 P.2d 1226, 1242, 119 Cal. Rptr. 858, 875, 78 A.L.R.3d 393 (1975)
(similar).
64 Prosser and Keeton on Torts § 65 at 453–54 (5th ed. 1984).
Arguing contra, Richard A. Epstein, Plaintiff’s Conduct in Products
Liability Actions: Comparative Negligence, Automatic Division and
Multiple Parties, 45 J. Air L. & Com. 87 (1979).
65 See David W. Robertson, Eschewing Ersatz Percentages: A
Simplified Vocabulary of Comparative Fault, 45 St. Louis U. L.J. 831
(2001).
66 See Kaatz v. State, 540 P.2d 1037, 1048 (Alaska 1975) (allocations
under comparative fault more accurate than the traditional all-or-nothing
rule). Maine, however, has adopted a radically different system, which
essentially tells the jury to do justice without regard to relative degree of
fault, so a defendant whose fault was more than 50% might nevertheless
be called on to pay only a small fraction, say 20% of the damages. See
Pelletier v. Fort Kent Golf Club, 662 A.2d 220 (Me. 1995).
67 See Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82
(2004) (recognizing that a difference in standards of care is highly relevant
in the allocation of responsibility to each party).
68 This is not to say that the trier should not consider all risks of the
same general kind, whether to self or others. See Robert Cooter & Ariel
Porat, Does Risk to Oneself Increase the Care Owed to Others? Law and
Economics in Conflict, 29 J. Leg. Stud. 19 (2000); Kenneth W. Simons, The
Puzzling Doctrine of Contributory Negligence, 16 Cardozo L. Rev. 1693,
1725–26 (1995).
69 Professor Robertson, listing five misunderstandings about
damages apportionment under comparative fault, put at the head of his
list the erroneous view that the defendant who is 30% at fault has caused
only 30% of the damages. See David W. Robertson, Eschewing Ersatz
Percentages: A Simplified Vocabulary of Comparative Fault, 45 St. Louis
U. L.J. 831, 838 (2001).
(2000).
71 Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994). The Eaton
Court listed these factors: “(1) the relative closeness of the causal
relationship between the conduct of the defendant and the injury to the
plaintiff; (2) the reasonableness of the party’s conduct in confronting a
risk, such as whether the party knew of the risk, or should have known of
it; (3) the extent to which the defendant failed to reasonably utilize an
existing opportunity to avoid the injury to the plaintiff; (4) the existence of
a sudden emergency requiring a hasty decision; (5) the significance of what
the party was attempting to accomplish by the conduct, such as an
attempt to save another’s life; and (6) the party’s particular capacities,
such as age, maturity, training, education, and so forth.” Cf. Purvis v.
Grant Parish Sch. Bd., 144 So.3d 922 (La. 2014) (setting forth five specific
factors to be considered in allocating fault).
Negligence Theory, 48 Stan. L. Rev. 311, 369 (1996).
73 Restatement Third of Torts (Apportionment of Liability) § 8(b)
(2000).
74 Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).
75 See § 10.14. Some authority favors considering the child’s age,
experience, and intelligence not only on the issue of liability but also on
the issue of apportionment. See Hanson v. Binder, 260 Wis. 464, 50
N.W.2d 676 (1952). Judge Woods concluded that most other decisions
assumed that these subjective factors bore on liability but had no effect
upon apportionment. See Henry Woods & Beth Deere, Comparative Fault
12:3—12:4 (3d ed. 1996).
76 Restatement Third of Torts (Apportionment of Liability) § 8 cmt. b
(2000).
77 See Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994) (“the
relative closeness of the causal relationship between the conduct of the
defendant and the injury to the plaintiff” is one factor in assessing
percentages).
78 According to the Restatement Third of Torts, the factors for
assigning liability are both fault and “the strength of the causal connection
between the person’s risk-creating conduct and the harm.” Restatement
Third of Torts (Apportionment of Liability) § 8 (2000).
79 See the excellent discussion in Victor Schwartz, Comparative
Negligence § 17.01(a) (4th ed. 2002).
80 Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).
81 See Wex S. Malone, Some Ruminations on Contributory
Negligence, 1981 Utah L. Rev. 91, reprinted in Wex S. Malone, Essays on
Torts 197 (1986); Wex S. Malone, Comment on Maki v. Frelk, 21 Vand. L.
Rev. 930 (1968).
82 Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 866 N.E.2d
901 (2007) (utility company owed no duty to position utility pole so that it
would not be struck by a drunk driver who veered off the road); Lowery v.
Echostar Satellite Corp., 160 P.3d 959 (Okla. 2007) (plaintiff attempted to
install satellite dish on roof; defendant owed no duty to protect her from
the obvious danger).
83 Solanki v. Ervin, 21 So.3d 552 (Miss. 2009) (plaintiff stopped her
car after it stalled in the middle of the highway rather than on the median
and defendant ran into it).
84 Juchniewcz v. Bridgeport Hosp., 914 A.2d 511 (Conn. 2007).
85 See Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d
604 (2001) (any negligence of the deceased was not a cause in fact of death,
no damages reduction for supposed comparative fault); Pavlou v. City of
N.Y., 868 N.E.2d 186 (N.Y. 2006) (worker operated crane with an excess
load, but a crack in the crane made it unsafe to operate with any load).
86 Some courts once said that the plaintiff’s contributory negligence
will bar her recovery if it makes the “slightest contribution” to the
resulting harm. E.g., Crane v. Neal, 389 Pa. 329, 132 A.2d 675 (1957). If
that language meant to ignore the usual causal rules, it has now been
rejected. See McCay v. Philadelphia Elec. Co., 447 Pa. 490, 291 A.2d 759
(1972). In general, causal rules on the issue of the plaintiff’s fault are the
same as the rules on the defendant’s negligence. Restatement Third of
Torts: Apportionment of Liability § 4 (2010); Restatement Third of Torts
(Liability for Physical and Emotional Harm) § 26 cmt. m (2010).
87 See Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind.
2002); Estate of Moses ex. rel. Moses v. Southwestern Va. Transit Mgmt.
Co., 643 S.E.2d 156 (Va. 2007); Restatement Second of Torts § 468 (1965).
88 Smithwick v. Hall & Upson Co., 59 Conn. 261, 21 A. 924 (1890);
see Lamp v. Reynolds, 249 Mich. App. 591, 645 N.W.2d 211 (2002)
(plaintiff could not have foreseen that in riding just off the edge of
defendant’s motocross raceway he would strike a hidden stump, so any
negligence in doing so was not a proximate cause of his harm; no reduction
in damages).
89 See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 116 S.Ct. 1813,
135 L.Ed.2d 113 (1996); Wright v. N.Y.C. Transit Auth., 633 N.Y.S.2d 393
(App. Div. 1995). Cf. Ala. Power Co. v. Moore, 899 So.2d 975 (Ala. 2004).
90 Compare Michael D. Green, The Unanticipated Ripples of
Comparative Negligence: Superseding Cause in Products Liability and
Beyond, 53 S.C. L. Rev. 1103 (2002); with Paul T. Hayden, Butterfield
Rides Again: Plaintiff’s Negligence as a Superseding or Sole Proximate
Cause in Systems of Pure Comparative Responsibility, 33 Loyola L.A. L.
Rev. 887 (2000).
91 However, some comparative fault acts are so broad that
comparative fault may be a defense to fraud. See WFND, LLC v. Fargo
Marc, LLC, 730 N.W.2d 841 (N.D. 2007) (statute including all acts or
omissions “that subject a person to liability”).
92 See Doe v. Dilling, 228 Ill.2d 324, 888 N.E.2d 24 (2008).
93 Simeonoff v. Hiner, 249 F.3d 883 (9th Cir. 2001).
94 Christensen v. Royal Sch. Dist. No. 160, 124 P.3d 283 (Wash.
2005).
Emotional Harm) § 7 cmt. h (2010) (“[C]ases arise in which courts hold
that a plaintiff’s recovery should not be affected by the plaintiff’s own
negligent conduct. Just as special problems of policy may support a no-
duty determination for a defendant, similar concerns may support a no-
duty determination for plaintiff negligence.”); Restatement Third of Torts
(Apportionment of Liability) § 3 cmt. d (2000).
Harm) § 7 cmt. h (2010).
97 Id.
98 See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010)
(discussing the importance of leaving comparative negligence issue to the
jury in light of the Restatement Third of Torts).
99 See generally Ellen M. Bublick, Comparative Fault to the Limits,
56 Vand. L. Rev. 977 (2003).
100 Rider v. Speaker, 692 N.Y.S.2d 920 (App. Div. 1999).
101 Lopez v. No Kit. Realty Co., 679 N.Y.S.2d 115 (App. Div. 1998).
102 Chu v. Bowers, 656 N.E.2d 436 (Ill. App. Ct. 1995).
103 Restatement Third of Torts (Apportionment of Liability) § 10 cmt.
e (2000).
104 Fields v. Senior Citizens Ctr., Inc., 528 So. 2d 573, 581 (La. Ct.
App. 1988).
105 Cf. Lynch v. Rosenthal, 396 S.W.2d 272 (Mo. Ct. App. 1965) (adult
plaintiff of very low mental ability injured in farm machinery while living
with farmer; plaintiff not necessarily chargeable with contributory fault).
106 See McMahon v. N.Y., N.H. & H.R. Co., 136 Conn. 372, 71 A.2d
557 (1950) (intoxicated passenger); Vaughn v. Nw. Airlines, Inc., 558
N.W.2d 736 (Minn. 1997) (passenger injured in handling own luggage).
107 Hutchison v. Luddy, 763 A.2d 826, 847 (Pa. Super. Ct. 2001),
vacating disallowance of punitive damages claim at Hutchison ex rel.
Hutchison v. Luddy, 870 A.2d 766 (Pa. 2005).
108 Christensen v. Royal Sch. Dist. No. 160, 124 P.3d 283 (Wash.
2005).
109 See Ellen M. Bublick, Comparative Fault to the Limits, 56 Vand.
L. Rev. 977, 1004–07 (2003).
110 Brown v. Dibbell, 227 Wis.2d 28, 595 N.W.2d 358 (1999) (patient
claimed doctor failed to advise fully on whether mastectomy was needed; if
true, negligence of patient in undergoing operation would be no defense).
Distinguish McCrystal v. Trumbull Mem’l Hosp., 115 Ohio App.3d 73, 684
N.E.2d 721 (1996), where the plaintiff sought and was entitled to a
comparative negligence instruction because evidence might have
suggested to the jury that she was at fault in relying on the defendant’s
medical advice.
111 Brown v. Dibbell, 227 Wis.2d 28, 595 N.W.2d 358 (1999) (patient
provided doctor with false information about her family history of breast
cancer); Son v. Ashland Cmty. Healthcare Servs., 239 Or. App. 495, 244
P.3d 835 (2010) (child’s failure to tell treating doctors of her consumption
of drugs that led to her hospitalization was negligence question for the
jury).
112 Shinholster v. Annapolis Hosp., 685 N.W.2d 275 (Mich. 2004).
113 Tulkku v. Mackworth Rees Div. of Avis Indus., Inc., 281 N.W.2d
291 (Mich. 1979); Bexiga v. Havir Mfg. Corp., 290 A.2d 281 (N.J. 1972).
114 See Hardy v. Monsanto Enviro-Chem Sys. Inc., 323 N.W.2d 270
(Mich. 1982) (holding that the rule in Tulkku, supra n. 113, does not apply
after the shift to comparative negligence).
115 See § 16.7 (protecting vulnerable classes).
116 See 2 Dobbs, Hayden & Bublick, The Law of Torts § 470 (2011 &
Supp.).
117 Walter v. Wal-Mart Stores, Inc., 748 A.2d 961, 969–72 (Me. 2000).
118 Olson v. Walgreen Co., 1992 WL 322054 (Minn. Ct. App. 1992).
119 Weaver v. Lentz, 561 S.E.2d 360 (S.C. Ct. App. 2002) (reducing
recovery by 50% for estate of deceased who overdosed on drugs recklessly
prescribed by defendant in spite of high risk of patient’s abuse) (not citing
Bramlette, supra n. 33, from the same jurisdiction). Contra Argus v.
Scheppegrell, 472 So. 2d 573 (La. 1985) (doctor who was under a duty not
to prescribe drugs for addicted teenager could not rely upon her
contributory negligence to defeat a claim for her death from overdose).
However, the rule in Argus no longer applies after comparative fault. See
Scheidt v. Denney, 644 So. 2d 813 (La. Ct. App. 1994).
120 Baxter v. Noce, 752 P.2d 240 (N.M. 1988). Minnesota holds that an
underage drinker’s purchase of alcohol can be “complicity” which operates
as a complete bar to recovery akin to contributory negligence. Spragg v.
Shuster, 398 N.W.2d 683 (Minn. Ct. App. 1987). This approach would
seem to negate the defendant’s duty to use any protection for the child.
But see Slager v. HWA Corp., 435 N.W.2d 349 (Iowa 1989) (comparative
fault does not apply to dramshop act).
121 Greycas, Inc. v. Proud, 826 F.2d 1560, 1566 (7th Cir. 1987).
122 See Vendetto v. Sonat Offshore Drilling Co., 725 So. 2d 474, 479
(La. 1999).
123 E.g., McNamara v. Honeyman, 406 Mass. 43, 546 N.E.2d 139
(1989); Tomfohr v. Mayo Found., 450 N.W.2d 121(Minn. 1990); Cowan v.
Doering, 111 N.J. 451, 545 A.2d 159 (1988); Bramlette v. Charter-Medical-
Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990) (“[T]he very act which the
defendant has a duty to prevent cannot constitute contributory negligence
or assumption of the risk as a matter of law.”).
124 Where the decedent was an out-patient, some cases have allowed
the jury to compare the patient’s fault in committing suicide with the
defendant’s fault in failing to protect her from her own suicidal tendencies.
See Hobart v. Shin, 185 Ill.2d 283, 705 N.E.2d 907, 235 Ill. Dec. 724
(1998); Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104 (Iowa
2011). Cf. Maunz v. Perales, 276 Kan. 313, 76 P.3d 1027 (2003) (rejecting
the rule for a suicidal outpatient, but at the same time using a subjective
standard for judging the patient’s fault in the light of his mental
limitations).
125 See Hickey v. Zezulka, 439 Mich. 408, 487 N.W.2d 106 (1992)
(superceded by statute); Sandborg v. Blue Earth Cty., 615 N.W.2d 61
(Minn. 2000) (jail suicide; when jailer assumed duty of protecting one in
custody, arrestee’s duty of self-care was shifted to the jailer; arrestee “is
relieved of his duty in these extraordinary circumstances, he can have no
fault to be compared”); Gregoire v. City of Oak Harbor, 244 P.3d 924
(Wash. 2010) (city could not assert contributory negligence or assumption
of risk as affirmative defense in wrongful death action concerning inmate
who committed suicide).
126 See Joseph v. State, 26 P.3d 459 (Alaska 2001) (holding suicide is
not superseding cause where defendant is under a duty of care to prevent
it, but seemingly contemplating that jury could reduce damages by
allocating some fault to the person who committed suicide); Tufo v.
Township of Old Bridge, 147 N.J. 90, 685 A.2d 1267 (1996) (police had
duty of care to arrestee in custody, but arrestee’s pre-arrest negligence in
consuming drugs could count as comparative fault to reduce municipality’s
liability; distinguishing health care cases and asserting a “strong public
policy of this State to make such arrestees legally accountable for violating
the drug laws”).
127 Harvey v. Mid-Coast Hosp., 36 F.Supp.2d 32 (D. Me. 1999)
(attempted suicide merely furnished the occasion for medical treatment
and does not reduce liability for the subsequent causal negligence of the
treating physician); DeMoss v. Hamilton, 644 N.W.2d 302 (Iowa 2002)
(error to give comparative fault instruction based upon plaintiff’s behavior
before consulting physician); Fritts v. McKinne, 934 P.2d 371 (Okla. Civ.
App. 1996); Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539 (1987) (the
plaintiff’s self-caused condition was “merely a factor that the doctor had to
take into consideration” in providing treatment); Rowe v. Sisters of the
Pallottine Missionary Soc’y, 211 W.Va. 16, 560 S.E.2d 491 (2001)
(plaintiffs who negligently injure themselves are entitled to subsequent,
non-negligent medical treatment, so liability of the plaintiff’s doctor for
malpractice is not reduced by plaintiff’s negligence in causing the injury
for which he sought treatment).
128 Cavens v. Zaberdac, 849 N.E.2d 526 (Ind. 2006) (asthmatic used
excessive medication and delayed treatment, but fault which occurred
prior to presentation at emergency room did not amount to contributory
negligence); Son v. Ashland Cmty. Healthcare Servs., 239 Or. App. 495,
244 P.3d 835 (2010) (child’s consumption of drugs that led to her
hospitalization could not be used as an affirmative defense for fault-
allocation purposes in action against treating physicians); Mercer v.
Vanderbilt Univ., Inc., 134 S.W.3d 121 (Tenn. 2004) (a patient’s negligent
conduct that occurs prior to a health care provider’s negligent treatment
and provides only the occasion for the health care provider’s subsequent
negligence may not be compared to the negligence of the health care
provider; citing many cases).
m (2000) (“[I]n a case involving negligent rendition of a service, including
medical services, a factfinder does not consider any plaintiff’s conduct that
created the condition the service was employed to remedy.”).
130 Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 232
U.S. 340, 34 S.Ct. 415, 58 L.Ed. 631 (1914). Perhaps the rule in this case is
affected by the difference between property rights, which are more
absolute, and tort rules, which require reasonableness. See William
Powers, Border Wars, 72 Tex. L. Rev. 1209 (1994).
131 Richard A. Epstein, Torts § 8.2.1 (1999).
132 See Ellen Bublick, Citizen No-Duty Rules: Rape Victims and
Comparative Fault, 99 Colum. L. Rev. 1413 (1999).
133 Hennessey v. Pyne, 694 A.2d 691 (R.I. 1997) (homeowner does not
assume the risk by living near golf course). Distinguish the sometime-
defense based on coming to the nuisance. Lewis v. Puget Sound Power &
Light Co., 29 P.3d 1028 (Mont. 2001), seems to have held that the plaintiff
might herself be negligent in purchasing property that might be damaged
by the defendant in the future. The court may have had coming to the
nuisance in mind, because it seems to suggest that the plaintiff might
have been “paid” for future damage in getting a reduced purchase price.
134 Lovelace Med. Ctr. v. Mendez, 805 P.2d 603, 604 (N.M. 1991).
135 Despite obvious equality concerns with the defense, in Jackson v.
Post Props., Inc., 513 S.E.2d 259, 261–62 (Ga. Ct. App. 1999), a civil
liability action stemming from rape, the issue of a woman’s comparative
negligence for living in a first-floor apartment was permitted to be
submitted to a jury.
136 Landreneau v. Fruge, 676 So.2d 701, 707 (La. Ct. App. 1996);
Christensen v. Royal Sch. Dist. No. 160, 124 P.3d 283 (Wash. 2005); but
see Buel v. ASSE Int’l, Inc., 233 F.3d 441, 450–51 (7th Cir. 2000)
(upholding jury assignment of 41% of responsibility for repeated rape by
father of host family to teenaged foreign exchange student from Germany).
See also Shelley Murphy, Judge Raps US over Bulger Civil Trial: Says
Victims, Families Were Unfairly Blamed, Boston Globe, September 25,
2010 (ordering the U.S. government to pay $5000 each to families of
murder victims who had to respond to the government’s attempt to
unfairly blame the victims for their deaths, a process which embarrassed
the victims’ families).
137 See Hayes v. Price, 313 S.W.3d 645 (Mo. 2010) (“a driver is
entitled to assume a car going in the opposite direction will yield the right
of way to oncoming traffic before turning,” reversing 20% assignment of
fault to plaintiff); Olson v. Parchen, 816 P.2d 423, 426–27 (Mont. 1991);
Springer v. Bohling, 643 N.W.2d 386, 392–94 (Neb. 2002).
138 Dominguez v. Manhattan & Bronx Surface Transit Operating
Auth., 46 N.Y.2d 528, 388 N.E.2d 1221, 415 N.Y.S.2d 634 (1979);
139 E.g., Robinson v. District of Columbia, 580 A.2d 1255 (D.C. 1990).
140 Davies v. Mann, 10 M. & W. 547, 152 Eng. Rep. 588 (Exch. 1842).
141 E.g., Walker v. Spokane, Portland & Seattle Ry., 262 Or. 606, 500
P.2d 1039 (1972).
142 See Giuseppe Dari-Mattiacci & Nuno Garoupa, Least-Cost
Avoidance: The Tragedy of Common Safety, 25 J.L. Econ. & Org. 235
(2009) (finding that the last clear chance rule may prevent accidents but is
not efficient).
143 Henry Woods & Beth Deere, Comparative Fault § 8.3 (3d ed.
1996).
144 E.g., Conn. Gen. Stat. Ann. § 52–572h (l); Minn. Stat. Ann. §
604.01; Ore. Rev. Stat. § 31.620.
145 E.g., Spahn v. Town of Port Royal, 330 S.C. 168, 499 S.E.2d 205
(1998); Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010); cf.
Penn Harris Madison Sch. Corp. v. Howard, 861 N.E.2d 1190 (Ind. 2007)
(noting decline of last clear chance doctrine with the advent of comparative
fault, but holding it still applicable to a case in which contributory
negligence rules applied).
146 Restatement Third of Torts (Apportionment of Liability) § 3 cmt. b
(2000) (No last-clear-chance rule categorically forgives a plaintiff for
conduct that would otherwise constitute negligence”).
147 E.g., Lambrecht v. Schreyer, 129 Minn. 271, 152 N.W. 645 (1915);
Galveston, H. & S.A. Ry. v. Zantzinger, 92 Tex. 365, 48 S.W. 563 (1898).
148 E.g., Sparks v. Ala. Power Co., 679 So. 2d 678 (Ala. 1996); Wolfe v.
Baube, 241 Va. 462, 403 S.E.2d 338 (1991); Murray v. Chi. Youth Ctr., 224
Ill.2d 213, 864 N.E.2d 176 (2007); Zeroulis v. Hamilton Am. Legion
Assocs., 705 N.E.2d 1164, 1166 (Mass. Ct. App. 1999).
149 Harlow v. Connelly, 548 S.W.2d 143 (Ky. Ct. App. 1977); Sorrells
v. M.Y.B. Hospitality Ventures of Asheville, 423 S.E.2d 72 (N.C. 1992).
150 Morris v. Yogi Bear’s Jellystone Park Camp Resort, 539 So.2d 70
(La. Ct. App. 1989).
151 Gail D. Hollister, Using Comparative Fault to Replace the All-or-
Nothing Lottery Imposed in Intentional Torts Suits in Which Both
Plaintiff and Defendant Are at Fault, 46 Vand. L. Rev. 121 (1993).
152 See Restatement Third of Torts (Apportionment of Liability) § 3
rptr. n. d (2000).
153 Restatement Third of Torts (Liability for Physical Harm) § 7 cmt.
h (2010); Ellen Bublick, Citizen No-Duty Rules: Rape Victims and
Comparative Fault, 99 Colum. L. Rev. 1413 (1999).
154 E.g., Gates v. Navy, 274 Ga. App. 180, 617 S.E.2d 163 (2005);
Cartwright v. Equitable Life Assurance Soc’y, 276 Mont. 1, 914 P.2d 976
(1996); Wightman v. Consolidated Rail Corp., 86 Ohio St. 3d 431, 715
N.E.2d 546 (1999) (acts committed with actual malice); Shin v. Sunriver
Prep. Sch., Inc., 199 Or. App. 352, 111 P.3d 762 (2003); Christensen v.
Royal Sch. Dist. No. 160, 124 P.3d 283 (Wash. 2005) (neither teacher who
was guilty of intentional sexual contact with his 13-year-old student, nor
negligent supervisors of the teacher could assert student’s consent as
comparative fault); Ellen M. Bublick, The End Game of Tort Reform:
Comparative Apportionment and Intentional Torts, 78 Notre Dame L. Rev.
355, 367–68 (2003); Henry Woods & Beth Deere, Comparative Fault § 7.1
(3d ed. 1996); Allan L. Schwartz, Annotation, Applicability of Comparative
Negligence Principles to Intentional Torts, 18 A.L.R.5th 525 (1995).
155 See Matthiessen v. Vanech, 266 Conn. 822, 836 A.2d 394 (2003)
(applying Conn. Gen. Stat. § 52–572h (o)); Ezzell v. Miranne, 4 So.3d 641
(La. Ct. App. 2011) (the defendant punched plaintiff in the face after
plaintiff called him an “A-----e,” as the court delicately put it; it was
improper to allow the jury to reduce plaintiff’s damages for plaintiff fault);
La. Civ. Code Ann. art. 2323 (c) (“if a person suffers injury, death, or loss
as a result partly of his own negligence and partly as a result of the fault
of an intentional tortfeasor, his claim for recovery of damages shall not be
reduced”).
156 Whitlock v. Smith, 297 Ark. 399, 762 S.W.2d 782 (1989). See also
Landry v. Bellanger, 851 So.2d 943 (La. 2003) (under statute, plaintiff who
negligently provokes intentional tort attack recovers damages without
reduction, but damages are reduced if plaintiff is herself guilty of an
intentional tort provoking the attack). Louisiana had been the one state to
allow provocation to limit the damages recovery in a battery case.
157 Thus neither the school teacher who intentionally has sexual
contact with his own 13-year-old student, nor the school that may have
been negligent with respect to the child, can claim her “consent” or other
conduct as comparative fault. Christensen v. Royal Sch. Dist. No. 160, 124
P.3d 283 (Wash. 2005). Comeau v. Lucas, 90 A.D.2d 674, 455 N.Y.S.2d 871
(1982), may have been a case permitting an intentional tortfeasor to
reduce liability for the plaintiff’s comparative fault. The court there
approved a comparative negligence instruction, but whether it went only
to the claim of negligent supervision or to the claim against the intentional
tortfeasor is unclear from the report.
158Restatement Third of Torts (Liability for Physical and Emotional
Harm) § 7 cmt. h (2010); see also Restatement Third of Torts
(Apportionment of Liability) § 3, cmt. d (2000).
159 Some intentional torts like trespass are artificially defined to
impose liability even though harm is not intended. Intentional torts
committed by low culpability intentional tortfeasors like children is
another area in which commentators suggest some comparison might be
appropriate. See William J. McNichols, Should Comparative
Responsibility Ever Apply to Intentional Torts?, 37 Okla. L. Rev. 641, 644–
46 (1984) (using illustrations of intentional torts committed by young
children). Shields v. Cape Fox Corp., 42 P.3d 1083, 1088 (Alaska 2002);
Jake Dear & Steven E. Zipperstein, Comparative Fault and Intentional
Torts: Doctrinal Barriers and Policy Considerations, 24 Santa Clara L.
Rev. 1, 32–38 (1984) (suggesting plaintiff fault as a defense to nuisance).
160 Kenneth W. Simons, A Restatement (Third) of Intentional Torts?
48 Ariz. L. Rev. 1061 (2006); Ellen M. Bublick, The End Game of Tort
Reform: Comparative Apportionment and Intentional Torts, 78 Notre
Dame L. Rev. 355, 368–69 (2003). At least part of the reason for applying
comparative fault principles in Bonpua v. Fagan, 253 N.J. Super. 475, 602
A.2d 287 (1992), was that there were intentional physical attacks by both
plaintiff and defendant.
161 Unif. Comparative Responsibility Act § 1 (2002) (“ ‘Fault’ includes
acts or omissions that are in any measure negligent or reckless toward the
person or property of the actor or others.”).
162 E.g., Yerkes v. Asberry, 938 S.W.2d 307 (Mo. Ct. App. 1997);
Cartwright v. Equitable Life Assurance Soc’y, 276 Mont. 1, 914 P.2d 976
(1996); Weaver v. Lentz, 348 S.C. 672, 561 S.E.2d 360 (Ct. App. 2002).
163 Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768
(1995); see Annotation, Application of Comparative Negligence in Action
Based on Gross Negligence, Recklessness, or the Like, 10 A.L.R.4th 946
(1981).
164 E.g., Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979); see also
Zeroulias v. Hamilton Am. Legion Assocs., Inc., 705 N.E.2d 1164 (Mass.
App. Ct. 1999) (“If conduct is negligent it cannot also be intentional [or
willful, wanton, or reckless]. Similarly, a finding of intentional [or willful,
wanton, or reckless] conduct precludes a finding that the same conduct
was negligent.”).
165 E.g., Van Gaasbeck v. Webatuck Cent. Sch. Dist., No. 1, 21 N.Y.2d
239, 287 N.Y.S.2d 77, 234 N.E.2d 243 (1967).
166 E.g., Strain v. Christians, 483 N.W.2d 783 (S.D. 1992); D.L. by
Friederichs v. Huebner, 110 Wis.2d 581, 329 N.W.2d 890 (1983).
167 Del E. Webb Corp. v. Superior Court, 151 Ariz. 164, 726 P.2d 580
(1986); Van Gaasbeck v. Webatuck Cent. Sch. Dist., No. 1, 21 N.Y.2d 239,
287 N.Y.S.2d 77, 234 N.E.2d 243 (1967).
168 CSX Transp., Inc. v. Miller, 46 So.3d 434 (Ala. 2010) (Locomotive
Inspection Act); Wilson v. Vukasin, 277 Mont. 423, 922 P.2d 531 (1996)
(under version of statute in effect at the time of injury); Gordon v. Eastern
Ry. Supply, Inc., 82 N.Y.2d 555, 626 N.E.2d 912, 606 N.Y.S.2d 127 (1993).
169 Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla. 1959).
170 See, refusing to set aside contributory or comparative negligence
rules, Lee v. Kiku Restaurant, 127 N.J. 170, 603 A.2d 503 (1991).
171 Zerby v. Warren, 297 Minn. 134, 210 N.W.2d 58 (1973) (glue sold
to minor who died after sniffing).
172 Magna Trust Co. v. Illinois Cent. R.R., 728 N.E.2d 797 (Ill. App.
Ct. 2000) (barring a comparative fault claim to the Safety Appliances Act).
173 See Sowinski v. Walker, 198 P.3d 1134 (Alaska 2008) (holding that
one of Alaska’s earlier rulings on the issue did not survive the statutory
adoption of pure several liability); Spragg v. Shuster, 398 N.W.2d 683
(Minn. Ct. App. 1987) (suggesting that Zerby v. Warren would not apply
after comparative fault; not leaving fault of the underage drinker plaintiffs
to a comparative fault determination, but finding “complicity” by the
plaintiff that operated as a complete bar akin to contributory negligence).
174 E.g., McNamara v. Honeyman, 406 Mass. 43, 546 N.E.2d 139
(1989); Tomfohr v. Mayo Found., 450 N.W.2d 121 (Minn. 1990); Cowan v.
Doering, 111 N.J. 451, 545 A.2d 159 (1988); Bramlette v. Charter-Medical-
Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990) (“[T]he very act which the
defendant has a duty to prevent cannot constitute contributory negligence
or assumption of the risk as a matter of law.”).
175 See, criticizing the serious misconduct bar on this and other
grounds, Joseph H. King, Jr., Outlaws and Outlier Doctrines: the Serious
Misconduct Bar in Tort Law, 43 Wm. & Mary L. Rev. 1011 (2002).
176 Cf. Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714, 968 P.2d 65,
80 Cal. Rptr. 2d 506 (1998) (statutory immunity from liability to one
injured in the commission of a felony, but immunity for use of deadly force
ultimately turned on common law justification), overruled on other
grounds as stated in Powerhouse Motorsports Grp., Inc. v. Yamaha Motor
Corp., 221 Cal. App. 4th 867, 887, 164 Cal. Rptr. 3d 811, 827 (2013).
Statutes that not only recognize a privilege of defending one’s self or
property but also provide immunity to defendants whose acts are outside
the scope of the privilege, may raise constitutional questions. See Sonoran
Desert Investigations v. Miller, 213 Ariz. 274, 141 P.3d 754 (2006) (statute
unconstitutional under state Constitution).
177 See Winschel v. Brown, 171 P.3d 142 (Alaska 2007) (plaintiff’s
violation of a bike-path regulation was not the kind of “serious criminal
conduct” that bars a negligence claim); Ardinger v. Hummell, 982 P.2d 727
(Alaska 1999) (public policy rationale for barring all recovery in a
comparative fault system is limited to “cases involving serious criminal
conduct that intentionally threatened the safety of others, such as
homicide, rape, and arson”); O’Brien v. Bruscato, 289 Ga. 739, 715 S.E.2d
120 (2011) (reversing summary judgment for psychiatrist in malpractice
case brought by patient who killed his mother after being taken off his
medication by the defendant, on the ground that there was a contested
issue of fact on whether the patient “knowingly” committed the criminal
act, given his mental disability). Some courts have been less cautious,
however. See Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005)
(premarital sexual activity enough to bar the plaintiff).
178 Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981).
179 See Peters v. Menard, 589 N.W.2d 395 (Wis. 1999).
180 Duggar v. Arredondo, 408 S.W.3d 825 (Tex. 2013) (comparative
responsibility statute abrogates “unlawful acts” doctrine).
181 Barker v. Kallash, 63 N.Y.2d 19, 468 N.E.2d 39 (1984). The case
was not a sympathetic one for the plaintiff: the defendant was a nine-year-
old boy who had furnished firecracker powder. The court’s language and
the principle it invokes, however, would seem to apply equally if a terrorist
had paid the plaintiff to make bombs. In that case, the principle would
seem to benefit a party whose acts are probably morally more
reprehensible.
182 Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995).
183 See Paul T. Hayden, Butterfield Rides Again: Plaintiff’s
Negligence as Superseding or Sole Proximate Cause in Systems of Pure
Comparative Responsibility, 33 Loy. L.A. L. Rev. 887 (2000).
184 Alami v. Volkswagen of Am., Inc., 97 N.Y.2d 281, 766 N.E.2d 574
(2002).
185 To similar effect, a New Jersey statute bars an uninsured motorist
from maintaining a personal injury action for damages. The statute was
applied in Aronberg v. Tolbert, 207 N.J. 587, 25 A.3d 1121 (2011), to bar a
mother’s wrongful death action where her son was uninsured. The court
suggested that it disagreed with the legislature’s policy choice, but found
no constitutional infirmity standing in the way of enforcing the statute.
186 The statute provided the same for both felonies and
misdemeanors, but only the misdemeanor provision was under review.
Ariz. Rev. Stat. § 12–717.
187 Sonoran Desert Investigations, Inc. v. Miller, 213 Ariz. 274, 141
P.3d 754 (Ct. App. 2006).
188 Ariz. Const. art. 18, § 6.
189 See, e.g., Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006). The
rule is not limited to tort cases. See 3 Dan B. Dobbs, Law of Remedies §
12.6 (2d ed. 1993).
190 See Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710
N.W.2d 71 (2006). For the other rules of avoidable consequences or
“mitigation,” see 1 Dan B. Dobbs, Law of Remedies § 3.9 (2d ed. 1993).
191 Tibbetts v. Dairyland Ins. 999 A.2d 930 (Me. 2010).
192 Preston v. Keith, 217 Conn. 12, 584 A.2d 439 (1991); Bryant v.
Calantone, 286 N.J. Super. 362, 669 A.2d 286 (1996).
193 Avoidable consequences comes into play after a legal wrong has
occurred but while some damages can still be averted. Trustees of Univ. of
D.C. v. Vossoughi, 963 A.2d 1162 (D.C. 2009) (professor’s pre-injury failure
to protect property was not proper defense to conversion and trespass to
chattels claim against university that cleaned out his research lab without
his knowledge).
194 Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Morgan v.
Scott, 291 S.W.3d 622 (Ky. 2009) (defendant did not present adequate
evidence that plaintiff’s smoking and obesity caused bone fracture healing
difficulties); Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 96,
710 N.W.2d 71, 81 (2006) (the trial judge’s instruction No. 2 appeared to
approve the mitigation defense without proof that efforts to mitigate would
have reduced the plaintiff’s damages; a later and more accurate
instruction probably cured the error).
195 Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006) (“on medical
matters which are within the common experience, observation, or
knowledge of laymen, no expert testimony is required to permit a
conclusion on causation”); Cartier v. Northwestern Elec., Inc., 777 N.W.2d
866 (N.D. 2010) (plaintiff failed to preserve causal issue for appeal).
196 See Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 95,
710 N.W.2d 71, 80 (2006).
197 See Keans v. Bottiarelli, 35 Conn. App. 239, 645 A.2d 1029 (1994).
198 See Baker v. Morrison, 309 Ark. 457, 829 S.W.2d 421 (1992)
(requiring causation to invoke comparative negligence apportionment in
failure to minimize cases); Waterson v. General Motors Corp., 111 N.J.
238, 544 A.2d 357 (1988).
199 E.g., Ridley v. Safety Kleen Corp., 693 So.2d 934 (Fla. 1996);
McKay’s Family Dodge v. Hardrives, 480 N.W.2d 141 (Minn. Ct. App.
1992); Business Men’s Assurance Co. of Am. v. Graham, 891 S.W.2d 438
(Mo. Ct. App. 1994).
200 E.g., Minn. Stat. Ann. § 604.01 (“ ‘Fault’ includes … unreasonable
failure to avoid an injury or to mitigate damages.”).
201 Unif. Apportionment of Tort Responsibility Act § 2 (2002).
202 See Paul A. LeBel, Reducing the Recovery of Avoidable “Seat-belt
Damages”: a Cure for The Defects of Waterson v. General Motors
Corporation, 22 Seton Hall L. Rev. 4 (1991). In Ridley v. Safety Kleen
Corp., 693 So.2d 934 (Fla. 1996), the court attempted to simplify the
computation by requiring the jury to make a single finding of fault that
included both the plaintiff’s negligence that contributed to impact and her
negligence that merely aggravated injury, but it remains to be seen
whether that simplification generates difficulties of its own.
203 Kocher v. Getz, 824 N.E.2d 671 (Ind. 2005); Shuette v. Beazer
Homes Holdings Corp., 124 P.3d 530 (Nev. 2005); Russo Farms, Inc. v.
Vineland Bd. of Educ., 144 N.J. 84, 675 A.2d 1077 (1996); Ostrowski v.
Azzara, 111 N.J. 429, 545 A.2d 148 (1988). This was the view of the
Restatement Second. See Restatement Second of Torts § 918 (1979) (“after
the commission of a tort”).
204 See 1 Dobbs, Hayden & Bublick, The Law of Tort § 231 (2011 &
Supp.).
205 See the court’s struggle in Cipollone v. Liggett Group, Inc., 893
F.2d 541 (3d Cir. 1990), aff’d in part and rev’d in part on other grounds,
505 U.S. 504 (1992). When nonaction is negligent, it may “begin” before
the defendant’s negligence and continue afterwards. See Del Tufo v.
Township of Old Bridge, 147 N.J. 90, 685 A.2d 1267 (1996) (arrestee’s
continuing negligence in failing to inform police that he had taken
overdose of cocaine treated as contributory negligence, not avoidable
consequences).
206 See Lynch v. Scheininger, 162 N.J. 209, 744 A.2d 113 (2000),
discussing both the avoidable consequences rule and superseding cause
where a doctor’s negligence alleged put a mother at risk for bearing a child
suffering severe abnormalities. The mother’s decision to conceive in spite
of the risk might reduce damages under the former or bar recovery under
the latter.
207 Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164 (1974) (failure to
wear seatbelt), codified in N.Y. Veh. & Traf. Code § 1229–c8; Halvorson v.
Voeller, 336 N.W.2d 118 (N.D. 1983) (cyclist’s failure to wear helmet).
208 The defendant generally bears the burden of proving the amount
of harm that would have been avoided. See Caiazzo v. Volkswagenwerk,
647 F.2d 241 (2d Cir. 1981) (defendant had burden of proving the
“consequences of the Caiazzos’ failure to wear seat belts”); Business Men’s
Assurance Co. of Am. v. Graham, 891 S.W.2d 438 (Mo. Ct. App. 1994).
However, in a number of cases courts have assigned percentages of
damages to the plaintiff on the basis that a consequence was avoidable.
See Karczmit v. State, 155 Misc.2d 486, 588 N.Y.S.2d 963 (N.Y. Ct. Cl.
1992) (25%).
209 See Restatement Third of Torts (Apportionment of Liability) § 3
cmt. b (2000) (plaintiff’s “failure to mitigate damages should no longer
constitute a bar to recovering those damages,” but rather is “a factor to
consider when assigning percentages of responsibility”).
210 See id. § 3 cmt. b, illus. 4.
211 Green v. Ford Motor Co., 942 N.E.2d 791, Prod. Liab. Rep. (CCH)
P 18571 (Ind. 2011) (jury could apportion fault to plaintiff motorist for
failure to wear seatbelt if plaintiff’s actions were a proximate cause of his
enhanced injuries); Barnes v. Paulin, 73 A.D.3d 1107, 900 N.Y.S.2d 886
(2010) (damage reduction based on seat belt nonuse); Restatement Third of
Torts (Apportionment of Liability) § 3 cmt. b illus. 3 (2000) (counting
failure to wear a seatbelt as a factor in apportionment of liability absent a
statute to the contrary); Kelly H. Foos, Toward a Rational Seat Belt Policy
in Kansas, 56 U. Kan. L. Rev. 1005 (2008) (citing data that suggest that
seatbelt nonuse is unreasonable and arguing that defense of comparative
negligence should be permitted for failure to wear a seat belt).
212 See Ala. Code § 32–5B–7; 75 Pa. Cons. Stat. Ann. § 4581(e) (“In no
event shall a violation or alleged violation of this subchapter be used as
evidence in a trial of any civil action”).
213 See Leonard Schwartz, The Seat Belt Defense and Mandatory
Seat Belt Usage: Law, Ethics, and Economics, 24 Idaho L. Rev. 275 (1988).
214See Christopher Hall, Annotation, Nonuse of Seatbelt as Reducing
Amount of Damages Recoverable, 62 A.L.R.5th 537 (1998).
215 Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164 (1974) (failure to
wear seat belt), codified in N.Y. Veh. & Traf. Code § 1229–c8; Halvorson v.
Voeller, 336 N.W.2d 118 (N.D. 1983) (cyclist’s failure to wear helmet).
216 Hutchins v. Schwartz, 724 P.2d 1194 (Alaska 1986); Ridley v.
Safety Kleen Corp., 693 So.2d 934 (Fla. 1996); Tetrick v. Frashure, 119
S.W.3d 89 (Ky. Ct. App. 2003) (absent statutory duty, court should define
the duty of care in general terms and leave it to the jury to determine
whether failure to wear a seat belt was a breach of the duty of care);
Waterson v. General Motors Corp., 111 N.J. 238, 544 A.2d 357 (1988).
Wisconsin has adopted different systems for dealing with seatbelt
negligence and helmet negligence, but both systems entail a reduction in
the plaintiff’s recovery. Stehlik v. Rhoads, 253 Wis.2d 477, 645 N.W.2d 889
(2002). Some statutes authorize the reduction. E.g., Cal. Veh. Code §
27315 (i); Ohio Rev. Code Ann. § 4513.263 (F) (“shall be considered by the
trier … as contributory negligence” and may diminish the recovery).
217 E.g., Vredeveld v. Clark, 504 N.W.2d 292 (Neb. 1993) (5% but
some evidence must be presented that injuries would have been less with
seatbelt); Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 672 S.E.2d 345
(W. Va. 2008); Mich. Comp. Laws Ann. § 257.710e; Mo. Ann. Stat. §
307.178 (4) (not to exceed 1%).
218 See Anderson v. Watson, 953 P.2d 1284, 62 A.L.R.5th 877 (Colo.
1998) (applying the Colorado statute to this effect); Pringle v. Valdez, 171
P.3d 624 (Colo. 2007) (holding that the statute does not encompass
physical impairment and disfigurement damages).
219 E.g., Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977); see
Christopher Hall, Annotation, Nonuse of Seatbelt as Reducing Amount of
Damages Recoverable, 62 A.L.R.5th 537 (1998).
220 About 30 statutes in three groups provide that evidence of failure
to wear a seatbelt (1) is not evidence of contributory negligence, or (2)
“shall not be admissible into evidence in a civil action,” with specified
exceptions, or (3) is not admissible and no exceptions are recognized. See
Olson v. Ford Motor Co., 558 N.W.2d 491 (Minn. 1997) (plaintiff could not
prove that defective seatbelt caused his injury); contra:
Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132 (Tex. 1994).
221 E.g., Iowa Code Ann., § 321–446 (operator’s failure to comply with
requirements for use of a child restraint system “does not constitute
negligence”); cf. Gaertner v. Holcka, 219 Wis.2d 436, 580 N.W.2d 271
(1998) (no contribution claim will lie against person who violated statute
requiring children be secured with seatbelts).
222 See Gaudio v. Ford Motor Co., 976 A.2d 524 (Pa. 2009) (excluding
seatbelt evidence in airbag defect case because statutory language
required it, whether or not the result was “unjust”).
223 Estep v. Mike Ferrell Ford Lincoln-Mercury, 672 S.E.2d 345 (W.
Va. 2008) (based on clear language of statute, court cannot permit car
maker to introduce evidence of nonuse of seatbelt in case involving non-
deployment of air bag).
224 Ark. Code Ann. § 27–37–703(a)(1) (“The failure of an occupant to
wear a properly adjusted and fastened seat belt shall not be admissible
into evidence in a civil action,” but allowing the defense in some products
liability cases).
225 See Rougeau v. Hyundai Motor Am., 805 So.2d 147 (La. 2002)
(adopting a version of the Mississippi rule: “Such evidence is only
admissible in a product liability action if: (1) it has probative value for
some purpose other than as evidence of negligence, such as to show that
the overall design, or a particular component of the vehicle, was not
defective; (2) its probative value is not outweighed by its prejudicial effect
or barred by some other rule of evidence; and (3) appropriate limiting
instructions are given to the jury, barring the consideration of seat belt
non-usage as evidence of comparative negligence or to mitigate damages”).
226 See Shantigar Found. v. Bear Mountain Builders, 441 Mass. 131,
804 N.E.2d 324 (2004) (plaintiff’s barn burned down due in part to the
defendant’s negligence; admission of evidence that the plaintiff should
have had sprinkler systems installed held proper; the jury found the
plaintiff chargeable with 60% of the fault); Acculog, Inc. v. Peterson, 692
P.2d 728 (Utah 1984) (failure to have fire extinguisher to protect valuable
equipment could not be considered as contributory fault, withholding a
ruling on avoidable consequences).
227 E.g., Dare v. Sobule, 674 P.2d 960 (Colo. 1984) (evidence of failure
to wear helmet inadmissible to show negligence or reduce damages under
mitigation doctrine); Halvorson v. Voeller, 336 N.W.2d 118 (N.D. 1983)
(failure to wear helmet goes to reduce damages caused by that failure). See
Stehlik v. Rhoads, 253 Wis.2d 477, 645 N.W.2d 889 (2002) (following a rule
similar to but not identical with Wisconsin’s seatbelt rule).
228 1 Dobbs, Hayden & Bublick, The Law of Torts § 231 (2011 &
Supp.) (for a discussion of these cases as well as policy rationales
suggested by courts).
409
Chapter 17
ASSUMPTION OF THE RISK

Analysis
A. EXPRESS ASSUMPTION OF RISK
B. IMPLIED ASSUMPTION OF RISK
§ 17.4 The Traditional Rule: Assumption of Risk as a Complete Bar
§ 17.6 Discarding the Defense of Implied Assumption of Risk
__________
A. EXPRESS ASSUMPTION OF RISK

Exculpatory clauses disfavored. Assumption of the risk, in all of
its forms, is a disfavored doctrine. Nevertheless, in appropriate
situations, the parties to a transaction can agree, by contract, as to
which of them should bear the risk of injury. This agreement may
include the risk of being injured, in person or property, by another
person’s negligence. A person may expressly assume the risk by
accepting a valid disclaimer of responsibility or by giving a valid
release or other exculpatory agreement in advance of injury.1 If the
plaintiff is injured by one of the risks covered by the agreement
and sues the defendant with whom the agreement was made, the
plaintiff’s claim will be entirely barred unless the agreement is
unenforceable for reasons of contract law,2 public policy,3 or other
state law.4
410
Express assumption of risk by contract. The plaintiff can

expressly assume the risk in writing, or orally as permitted by
contract law.5 An express assumption of risk ordinarily will relieve
the defendant of the duty that otherwise existed.6 Alternatively, it
will establish that he has breached no duty.7
Examples of potentially valid exculpatory clauses. For example,
those who contract for the privilege of engaging in dangerous
activities like racing or sky-diving are often required to release the
provider from all liability in advance.8 Likewise, a patient might
oppose blood transfusions and consent to only a surgery without
them.9
What may not be waived: gross negligence and recklessness.
Defendants assert express assumption of risk most commonly in
negligence cases. Indeed, many states disallow releases that
purport to go further and attempt to waive liability for grossly
negligent, reckless, or intentional behavior.10 Other states have
enforced releases to bar claims based on reckless or grossly
negligent behavior, where the release clearly expressed the parties’
intention and was not the product of overreaching or grossly
unequal bargaining power.11
Limitations stemming from contract. Any assumption of risk in
its express form is a contract, and is thus subject to the laws of
contract enforceability and interpretation.12
411
For example, ambiguities are construed against the drafter,

usually the party attempting to assert the express assumption of
risk as a defense in later litigation.13 Beyond this, because of the
nature of express assumption of risk—that it represents the
advance waiver of a legal right to sue for a tortiously caused injury
to person or property—courts have long given them stricter
scrutiny than would be given to more benign contracts.14 For
example, some authority holds that exculpatory provisions must be
expressed in unmistakable language.15 More authority, in line with
the Apportionment Restatement, requires that exculpatory
contracts must meet “higher standards for clarity than other
agreements.”16 Releases that are drafted too broadly, purporting to
waive all of a defendant’s liability, are often held unenforceable.17
Not surprisingly, parties often litigate over how clear the language
of a release really is.18 Many courts also require that any written
waiver be “conspicuous,” alerting the signer to the nature and
significance of what is being signed.19 Moreover, if the waiver
purports to exclude liability for negligence, that fact must be
mentioned explicitly.20
Scope of the release. An express assumption of risk is
enforceable (if at all) only to the extent that reflects the plaintiff’s
voluntary agreement to free the defendant from liability in
advance.21 Thus, even where a release is otherwise properly
enforceable, that is, untainted by any contractual or public policy
problems, a question may still remain whether the scope of the
release covers the claim being asserted by the injured plaintiff.22
Of course, the question of the scope of the release and the question
of whether the release is sufficiently clear are not unrelated. A
court may well determine that a particular
412
release does not cover the plaintiff’s injury because it does not
clearly do so, as required by law.23
Limitations stemming from public policy. State courts
frequently strike down pre-injury releases on a number of different
public policy grounds.24 In many cases, courts decide that a party
cannot waive its duty of reasonable care despite the agreement.25
Courts seeking to identify appropriate public policy limits
frequently begin their analysis with the California Supreme
Court’s influential Tunkl case.26 In Tunkl, the defendant-hospital
would admit patients only if the patients signed a release relieving
the hospital of all liability. The California Supreme Court believed
that such a release was void as against public policy, partly
because the patients did not truly acquiesce voluntarily to relieve
the defendants of liability, and partly because medical services
were themselves so important.27 In its opinion, the court identified
factors for determining whether an exculpatory clause should be
invalidated.
The Tunkl factors. The Tunkl court identified six different
factors relevant for determining whether a release violates public
policy, with the caveat that not all six factors need be present to
invalidate a release:
[1] [The exculpatory contract] concerns a business of a type
generally thought suitable for public regulation. [2] The
party seeking exculpation is engaged in performing a service
of great importance to the public, which is often a matter of
practical necessity for some members of the public. [3] The
party holds himself out as willing to perform this service for
any member of the public who seeks it…. [4] As a result of
the essential nature of the service, in the economic setting of
the transaction, the party invoking exculpation possesses a
decisive advantage of bargaining strength against any
member of the public who seeks his services. [5] In
exercising superior bargaining power, the party confronts
the public with a standardized adhesion contract of
exculpation, and makes no provision whereby a purchaser
may pay additional reasonable fees and obtain protection
against negligence. [6] Finally, as a result of the transaction,
the person or property of the purchaser is placed under the
control of the seller, subject to the risk of carelessness by the
seller or his agents.
413
A large number of states have adopted these factors or have

developed similar variants.28 The Restatement Third draws on
these factors in devising a similar list.29
Examples of exculpatory clauses invalidated based on public
policy. Products manufacturers and distributors cannot use
disclaimers or exculpatory agreements to avoid liability for
personal injury resulting from dangerous products.30 Similarly,
releases in cases of medical research upon human beings—
experimentation as distinct from treatment—may be void.31 Public
agencies like schools may not be allowed to condition a student’s
participation rights on a general release of all liability for
negligence.32 Caregivers, such as child care centers33 and nursing
homes,34 having undertaken care, can hardly be permitted to
undermine their promise by a clause that release them from a duty
of care. Historically, businesses affected with a public interest,
including some professional bailees,35 carriers,36 and public
utilities,37 could not contractually avoid liability for their own
negligence. Although many courts have refused to extend this kind
of thinking to nonessential recreational activity,38 a few have done
so, holding that a release-in-advance will not absolve a recreation-
provider from liability for its own negligence.39 And courts have
declared it against public policy for employers
414
to use the contract of employment to extract a release of

liability for their own negligence.40
Parental waivers. Somewhat differently, but to similar effect,
the vast majority of states that have made a decision on the issue
have held that parents have no authority to release their minor
children’s potential claims in advance of an injury in connection
with a commercial activity, and that accompanying indemnity
agreements that would shift liability to the parents are also void.41
In the community-run and school-sponsored activity setting, some
waivers have been invalidated,42 but others upheld.43 To some
extent, the decisions about whether to uphold the waiver seem to
reflect the extent of unreasonable conduct that led to injury.
Galloway, for example, invalidated the releases for a community
sponsored program in which young children were told to cross a
highway without supervision.44
Waivers of precaution required by statute. Statutory liability
schemes may also influence the enforceability of releases. For
example, a statute might set forth safety standards for a particular
industry. If an exculpatory clause purports to release an industry
member from liability for violating those standards, the clause will
not be enforceable.45 Even a statute that immunizes an industry
from a certain range of claims may lead a court to conclude that a
release cannot go further without violating public policy.46
B. IMPLIED ASSUMPTION OF RISK
§ 17.4 The Traditional Rule: Assumption of Risk
as a Complete Bar
Traditional rule no longer valid. Most agreements in everyday
life are tacit, not expressed. No logical reason prevents parties
from tacitly or impliedly consenting or agreeing to a shift of
responsibility to the plaintiff. The traditional assumption of risk
415
rules found such tacit consent when the plaintiff, knowing of

the risk and appreciating its quality, voluntarily chose to confront
it. If these facts were shown, then the plaintiff’s claim for
negligently caused injury was completely barred. A few states
continue to follow this traditional “complete bar” rule.47 Most
states do not. The Restatement Third has generally done away
with the concept of implied assumption of the risk.48
Consent. The traditional assumption of risk rule was sometimes
expressed in terms of the maxim volenti non fit injuria or under
the name of incurred risk. However formulated, the essential idea
was that the plaintiff assumed the risk whenever she impliedly did
so by words or conduct, just as would be true if she did so
expressly. Children as well as adults could assume the risk and if
they did, their claims would be barred.49 Courts began to think
that conduct implied consent whenever the plaintiff had specific
knowledge of the risk posed by the defendant’s negligence,
appreciated its nature, and proceeded voluntarily to encounter it
nonetheless.50 By focusing on the plaintiff’s knowledge of the risk
as if that were an agreement to relieve the defendant of liability,
courts sometimes allowed the negligent defendant to escape all
responsibility for his misconduct even though the plaintiff acted
quite reasonably and never signaled any intent to relieve the
defendant from responsibility.51 The Second Restatement and more
modern theory added that the risk was assumed only if the
plaintiff’s conduct in encountering the risk manifested the
plaintiff’s willingness to accept responsibility for the risk.52
The connection to contributory negligence. In spite of the
doctrine’s grounding in the plaintiff’s actual or apparent consent to
accept responsibility for a risk, courts often applied the doctrine
without inquiring whether the plaintiff’s conduct could reasonably
be interpreted as any kind of consent at all.53 Instead, they treated
the plaintiff’s voluntary encounter with the risk as sufficient to
raise the bar of assumption of risk, even though in many instances
such conduct would not bespeak consent at all.54
416
Assumption of risk took on a life of its own, reflecting policies or

biases of the time rather than the plaintiff’s actual or apparent
consent.55
The no-duty or no-negligence connection. In another set of cases,
courts used the term assumption of risk to express the view that
the defendant should not be liable, but the reasons for nonliability
did not lie in the plaintiff’s consent or in her culpability. These
were cases in which courts themselves, for reasons not much
connected to the plaintiff’s conduct or consent, narrowed or
eliminated the defendant’s duty, or else concluded that the
defendant simply was not negligent.
No duty of landowners. For instance, courts have often held that
landowners are free to leave dangerous conditions on their land, so
long as those conditions are not hidden. If someone is injured by a
dangerous but obvious condition on the land, the landowner is
frequently not liable.56 Courts often expressed this rule by saying
that the plaintiff assumed the risk of open dangers on the land or
those of which she knew.57 However, the use of assumption of risk
terminology in such cases added greatly to the existing confusion,
because in these cases, assumption of risk did not mean either
consent or contributory negligence. Ultimately, it was not even
based on the plaintiff’s conduct, but upon judicial policy to free the
landowner from a duty of care. The assumption of risk terminology
in cases like these thus serves mainly to distract courts from
considering whether the defendant should owe a duty of care, or
whether no duty was breached as a matter of law.58
“Consent” to employment risks. The early law of implied
assumption of risk which arose in the nineteenth century was
devoted to liabilities of employers for injury to employees.59 Courts
seldom inquired about the employee’s real or even apparent
consent to accept employment risks. Instead, courts conclusively
“presumed” that, by accepting employment, the employee assumed
the ordinary risks of employment and in addition assumed risks of
specific employer negligence when he was made aware of those
risks.60 Since accepting employment could hardly count as
contributory negligence and since it would seldom reflect either
actual or apparent consent to employer negligence, these cases
seem in reality to reflect a judicial policy or bias, not a decision
about the plaintiff’s
417
conduct at all. Holdings like this gave the doctrine of implied
assumption of risk a bad name, and most courts gradually moved
away from them.61
The fellow-servant rule and its abolition. The early employment
cases also developed the fellow-servant rule, which asserted that a
worker always assumed the risk of the negligence of fellow
employees. An employee of a railroad, for example, could not
recover from the railroad when the railroad’s engineer negligently
derailed a train and caused injury to other employees.62 Twentieth
century statutes abolished assumption of risk defenses in the
employment context,63 but not before the doctrine had spread
beyond the employer-employee setting in most states.
Developing limits to the harsh traditional rule. The traditional
rule of implied assumption of risk acted as a complete bar to a
plaintiff’s recovery and thus could work as harshly in application
as the traditional rule of contributory negligence. However, courts
began to develop some constraining rules to soften these harsh all-
or-nothing applications.
Voluntariness; reasonable alternatives. One such constraining
rule was that the plaintiff’s confrontation of the risk had to be
voluntary, which was to say that the plaintiff had to have a
reasonable alternative course of action.64 For example, if
passengers in a car discover that their driver is dangerous and
voluntarily remain in the car, they assume the risk of the dangers
they have discovered. But if they are by then in an unfamiliar area,
on a cold night, without any alternative transport to their homes or
jobs, their continued exposure to the risk “is not in a true sense
voluntary” and their claim for injury at the driver’s hands is not
barred.65
Knowledge of the risk itself. Another rule to avoid the harsh
results of the implied assumption of risk doctrine held that the
plaintiff did not assume the risk unless she knew of the risk itself
as well as the facts that gave rise to it and “really” assumed the
risk.66 The plaintiff’s subjective consent was required.67
418
Problems with implying consent from conduct: Prosser’s

jaywalker. The real problem in these cases is not reached by rules
about voluntariness or subjective consent. The problem lies in the
courts’ tendency to equate confrontation of known risks with a
manifestation of consent. A plaintiff who knows of a risk,
understands it, and decides to take it anyway may be negligent in
some cases, but a defendant could seldom reasonably understand
the plaintiff’s conduct to mean that she agreed to accept all risks of
the defendant’s negligence. As Prosser pointed out, the driver of an
automobile cannot reasonably believe that the jaywalking plaintiff
is consenting to the driver’s negligence.68 The jaywalker assuredly
confronts a known risk and does so voluntarily, but voluntary
confrontation of the risk does not communicate any release of the
driver from the duties of ordinary care. Instead, the jaywalker is
simply negligent. His negligence is to be judged under comparative
fault rules. Moreover, court findings of consent when the plaintiff
confronts a known risk in a reasonable way limits the plaintiff’s
freedom to act reasonably.
§ 17.6 Discarding the Defense of Implied
Assumption of Risk
Abolishing implied assumption of the risk. “[W]hen we are
tempted to say ‘assumption of risk’ we should instead say
something else.”69 As early as the 1950s, some courts began to
recognize that implied assumption of risk rules had no separate
status or function and could be usefully abolished.70 Since
assumption of risk always seemed to be a way of talking about
some other established legal doctrine, a number of courts found
that implied assumption of risk could be better expressed by
discussing the basic concepts of duty, negligence, or contributory
negligence.
Resolving assumption of the risk questions through other
doctrines. The insight that implied assumption of risk is a
superfluous and unnecessarily confusing doctrine has spread
inexorably.71 Reflecting this evolution in judicial thinking,
assumption of risk today is increasingly discarded as a separate
defense, except in its express form. Cases formerly resolved under
assumption of risk rationales can now be resolved by (1) applying
the comparative fault rules, (2) holding that the defendant had no
duty of care, or (3) holding that the defendant did not breach a
duty. Which resolution is appropriate depends upon the facts of the
case.72
Merging assumption of the risk into comparative negligence.
After the advent of comparative negligence, courts found it
logically or morally difficult to maintain a dual system in which the
plaintiff’s fault only reduced damages if it was called contributory
negligence, while it barred the plaintiff entirely if it was called
assumption of risk. Consequently, most comparative negligence
states, by statutory provision73 or judicial
419
decision,74 simply “merge” assumption of risk into comparative

negligence in many routine cases. Regrettably, some courts
receptive to the idea that assumption of risk is merely an
alternative expression for other concepts still use the language of
assumption of risk.75
Assumed risk as plaintiff fault. Many cases are amenable to
resolution under the comparative negligence rules. The hitchhiker
who falls asleep on the highway’s edge is not assuming the risk of
being run over by a negligent driver; he is merely negligent and
accordingly may suffer a defeat or a reduction in damages under
comparative negligence rules.76 The same is true for the customer
who falls in her attempt to enter a business in spite of water on its
floor.
The contemporary view. Contemporary courts usually say that
implied assumption of risk does not survive the adoption of
comparative negligence.77 They sometimes add that express
assumption of the risk survives the adoption of comparative
negligence.78 This view is in line with the Third Restatement.79
Some commentators have counseled that there is a small subset of
cases concerning full preference for risk in which the doctrine of
implied assumption of the risk should be retained—as when a
plaintiff would rather jump out of a plane with a potentially
defective parachute than a sound one.80 But given the history of
overbroad uses of implied assumption of the risk, many courts are
justifiably reluctant to accommodate this narrow category of
preferred risk by restarting the game of determining when the
plaintiff consents to the negligence itself. When this view is
adopted, assumption of the risk is absorbed into three other
elements: defendant duty, defendant negligence, and plaintiff
comparative fault.
Assumption of risk as consent to relieve the defendant of a duty
of care. Where assumption of risk is a matter of the plaintiff’s
apparent consent to accept risks generated by the defendant,
sometimes referred to as “primary” assumption of the risk, the
defendant may have no duty of care.81 For example, the nurse
hired to care for and restrain combative Alzheimer’s patients may
impliedly assume the risk that one of her patients will harm her, or
put otherwise, the patient is not liable for harm to the nurse
420
even though he may be liable if he harms strangers.82 The

outcome today is often expressed either in terms of assumption of
risk or a rule that the defendant owes no duty.
Assumption of risk showing no negligence on defendant’s part.
In other cases, the plaintiff’s consent to accept a risk simply shows
that the defendant was not negligent. For example, suppose a
seriously ill patient, losing confidence in ordinary medical
treatment, asks her doctor for an experimental treatment that is
also dangerous. When the risky experimental treatment causes
harm or fails to cure, the patient cannot recover on the theory that
following her wishes was negligent.83 Some courts might explain
this outcome by saying that the patient’s consent relieved the
doctor of a duty of care, but that seems to be the wrong
explanation. The physician undoubtedly owes his patient a duty of
reasonable care and the real question on these facts is whether he
breached that duty, that is, whether he was negligent. The
patient’s consent determines that issue. Where the physician
administered only the care to which the patient consented, he was
rendering appropriate care and thus fulfilled his duty, making him
not negligent.84 Indeed, the physician would violate the patient’s
rights if he administered a traditional treatment after agreeing not
to.
Assumption of risk as comparative fault. Finally, as with
Prosser’s jaywalker, what was once termed assumption of the risk
actually may now be used to show that the plaintiff is at fault.85 A
person who crosses the street in the middle of the road, although
not consenting to the negligence of a driver, may have liability
apportioned to her under principles of comparative fault.
Types of implied assumption of risk. In a perfect world, we
would speak no more of “implied assumption of risk.” As discussed
above, the existing rules of plaintiff negligence, defendant duty,
and defendant negligence render the separate existence of
assumption of the risk entirely superfluous and potentially
confusing. But in a significant number of states, the terminology
doggedly persists, albeit in a somewhat modified form. In these
states, the term “primary assumption of risk” is used to indicate a
no-duty or no-breach conception; and the term “secondary
assumption of risk” is used to indicate the plaintiff negligence
conception.86 This “primary” and “secondary” terminology
developed in the twentieth century mainly in response to the
adoption of comparative negligence, which made it imperative to
decide whether all forms of implied
421
assumption of risk were properly subsumed within that system,

or whether some forms should completely bar a plaintiff’s
recovery.87
Problems with primary and secondary terminology. As
descriptive terminology, there is nothing at all remarkable here.
Implied assumption of risk does appear, when unpacked to its
essentials, to be divisible into either a no-duty/no-breach
conception or a contributory negligence conception. However,
continued use of the primary/secondary terminology is ill-advised
for a number of reasons. First, the distinction tends to muddle the
issue of who has the burden of proof. If the issue is no duty or no
negligence, placing the burden of proving assumption of risk on the
defendant in essence forces a defendant to prove that an element of
the plaintiff’s prima facie case (duty or breach) has not been
proved.88 Another problem is that the usage sometimes invites
confusion over the proper roles of judge and jury. Many courts hold
that assumption of risk in any form is a jury issue;89 some state
constitutions so require.90 Many other courts say that once the
defense is presented in its “primary” form—in its “no-duty” form—
it is a legal question, for the judge.91 Finally, the “primary” and
“secondary” implied assumption of risk usage is needlessly
redundant in its most common form. If “primary assumption of
risk” is synonymous with “no duty” or “no negligence,” then why
retain an additional term for those well-established concepts?
Abandoning the implied assumption of risk term. Judges have
perceptively noted that the application of the doctrine of implied
assumption of risk “has been somewhat tangled”92 and has
spawned “confusion and complications” in the law.93 Using
“assumption of risk” terminology at all is the real culprit here,
because courts must then recognize that that one term harbors at
least three different meanings. Such a task is not easy for busy
judges to keep straight, especially if confronted by lawyers whose
briefs and arguments are focused mostly on older precedent that
takes no account of contemporary analysis. Courts would do better
to abandon the term entirely and to more transparently address
the issues of duty, negligence and contributory negligence that are
raised by the arcane assertion of the “assumption of risk defense.”
422

The sports cases. While there is no formal category of implied
assumption of the risk that is specific to sports-related injuries,
this setting is a frequent context of assumption of risk questions.
Most of these issues concern primary assumption of the risk—the
defendant no-duty or no-negligence conception.
Spectators: limited duty not to increase inherent risks. Before
the adoption of comparative negligence, courts concluded that
spectators at sporting events such as baseball games assumed the
risk of being struck by wayward balls or the like. A more current
version of the idea might say that the defendant sports arena owed
no duty to them for inherent risks of the sport.94 So a sports
operator may have a duty to provide some reasonably safe
accommodations, for example, to provide screening in the most
dangerous areas sufficient to protect the number of people who can
be expected to wish such protection on ordinary occasions.95
However, if the plaintiff has the option of a safer seat and sits in
an unprotected area, if she is injured by a foul or mis-thrown ball
or an errant hockey puck, she simply has no claim.96 Put more
broadly, the operator of sports enterprises “has no duty to protect
an invitee against the ordinary hazards of the sports activity,”97 or
more accurately, to protect against the inherent risks that remain
after due care is exercised.98
The duty of care. These rules do not mean that the sports
enterprise never owes a duty of care, much less that it never
breaches the duty. For instance, the enterprise might provide a
defective screen behind home plate, or bleachers that collapse. If
so, it is quite likely to be held liable for its negligence.99 In the
collapsing bleachers example, it would be hard to assert that the
sports enterprise owed no duty of care to provide reasonably safe
bleachers.
Defining inherent risks. Which risks are inherent and which
risks should be avoided through reasonable care is a subject of
continued litigation.100 Moreover, the doctrinal
423
development of the baseball spectator cases themselves shows

the extent to which the risks considered inherent in an activity are
a social construct that changes over time. Requirements for
providing screening or alternate seating have increased since the
earlier cases.101
Sports participants: general rule. Participants in organized and
even private sporting activities are governed by rules similar to
those that apply to spectators. In the old language of assumption of
risk, participants impliedly “assume the risk” of all the dangers
inherent in the sport and thus have no claim arising out of such
dangers. In newer terminology, it might be said that the defendant
has breached no duty to sporting participants when it does not
protect them from inherent risks of the game.
Inherent dangers distinguished from negligently created
dangers. In many sporting activities, dangers inherent in the sport
would never include the defendant’s negligence. In the old
language of assumption of the risk, this case of no negligence is
expressed by saying that a skier impliedly assumes only the risks
of dangers inherent in skiing, but does not assume the risk of
dangers hidden below the snow as a result of the slope operator’s
negligence. In such cases, the operator’s negligence is by no means
inherent in the sport.102 Similarly, a horseback rider assumes the
risk of being thrown, but the rider assumes only the inherent risk,
not the added risk incurred by reason of the stables’ negligence.103
Put the other way around, unless policy dictates otherwise, the
defendant does not avoid liability for negligence that adds either
new risks to a dangerous activity or substantially increases the
risks that are inherent in the activity.104 However, courts
sometimes describe seemingly nonessential and avoidable dangers
as “inherent,” and thus protect the defendant.105
Risks of negligence assumed. Participants in active, competitive
sporting contests—football and ice hockey, for example—often
must expect negligently caused physical injury. A number of courts
have accordingly held that in such cases the duty of other
424
participants is only a duty to avoid intentional or reckless

injury.106 Some states have statutes to this effect.107 The rule
apparently does not protect non-participants such as the owner of
premises whose negligence increased the risk to the players.108
Intentional harms as inherent danger. California has gone
further, holding that even an intentional tort may be an inherent
risk of the game, so that a willing participant in the game cannot
recover for such an “inherent” risk.109 California applied that rule
to eliminate a claim by a batter who was injured when the pitcher
intentionally struck him in the head with a pitched ball. In some of
these cases, it looks as if courts are treating foreseeable misconduct
in sports as if such misconduct were inherent in the sport. This
rationale seems unsound—the court opined that intentionally
hitting a batter in the head as a retaliatory measure would be
accepted in the sport without taking any evidence from college
coaches or players from the region—and its theory has not been
adopted by other courts.
Rationale. The limited duty (or standard of care) is derived
directly from the plaintiff’s limited expectations of safety.110 The
limited-duty approach makes it clear that even violation of a rule
of the game does not in itself result in liability; the defendant will
be liable only if he is reckless or intends harm.111
Applications. The limited-duty rule has been applied to
organized sports like pro football112 and college hockey,113 and to
professional horse racing.114 Quite arguably it is best confined to
professional sports.115 But the limited-duty rule has also been
applied to
425
recreational games of football,116 soccer,117 softball,118

paintball,119 and even to games that seem to be little more than
horseplay in which the rules are constructed on the fly120 and to
children’s activities that are not really games at all.121
Consent and parties’ expectations as foundations for the duty of
care. If the underlying point is the one rooted in the consent type of
implied assumption of risk, that is, the reasonable expectations of
the parties involved, a more cautious formulation is required. To
say that professional football players must expect some rather
serious misbehavior is not to say that ping pong players should
expect to be blinded by a thrown paddle.122 If the limited-duty rule
is true to its consensual heritage, the reasonable expectations of
the parties must be taken into account, so that the particular facts
of the cases and the particular kind of sporting activity and
expectations of players involved will be important.123 Hunters, for
example, presumably know that they are at risk from other
hunters, but given the seriousness of potential injury, those who
participate should not be viewed as consenting to being shot by
negligent gunners. Consequently, the cases so far have required
hunters to exercise the care of reasonable and prudent persons.124
And Connecticut has said that the expectations of skiers,
considering the dangers of the sport, is that other skiers will follow
the rules and exercise care, with the result that skiers owe each
other a duty of reasonable care undiminished by any supposed
assumption of risk.125 Expectations of care may govern with
respect to playful activities as well.126
Limiting duty based on policy rather than consent or
expectations. It may be that some courts are in the process of
creating a freestanding limited-duty rule, divorced from
426
its foundation in the parties’ expectations.127 The opinions

suggest that the duty should be limited because of the danger of a
flood of litigation, and because of a supposed policy of encouraging
vigorous physical competition.128 Both these reasons are
potentially at odds with the parties’ expectations. Where the
parties reasonably expect that a game rule will be followed by
other players, it would seem that the parties’ expectations should
control. Ordinary care under the circumstances should be the
standard unless the plaintiff has clear notice that she is entitled to
lesser protection. Moreover, when a court sets rules about parties’
reasonable expectations, it not only reflects those expectations, it
generates future expectations. As such, policies regarding care can
also be important when deciding whether to limit ordinary care
standards.
Rejecting the exculpatory rules. A few courts in recent years
have insisted on the ordinary negligence standard for sports
participants.129 Quite possibly that standard would yield the same
results in most cases, since reasonable care takes circumstances,
including the customs and expectations of the parties, into account.
________________________________
1 See K.A. Drechsler, Annotation, Validity of contractual provision
by one other than carrier or employer for exemption from liability, or
indemnification, for consequences of own negligence, 175 A.L.R. 8 (1948)
(containing an exhaustive collection of cases).
2 Pearce v. Utah Athletic Found., 179 P.3d 760 (Utah 2008) (express
assumption of the risk is a contract subject to ordinary rules of contract
interpretation and will not be upheld if it is unclear or ambiguous).
(2000); Restatement Second of Torts § 496B (1965). Some courts limit the
enforceability of releases to particular types of activity and hold releases in
other contexts void for public policy reasons. See, e.g., Vodopest v.
MacGregor, 128 Wash.2d 840, 913 P.2d 779 (1996) (releases generally
valid only in the context of “adult high-risk sports activities”). Others have
taken the opposite approach and have struck down releases in particular
contexts, leaving them potentially enforceable outside those settings. See,
e.g., Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d
734 (2005) (even well-drafted releases void in the recreational-activity
setting).
4 See Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 111 P.3d 1003
(2005) (recognizing that a release of liability in advance is a form of
assumption of risk; under the state constitution, provision leaving
assumption of risk to the jury in all cases would apply).
5 E.g., Davis v. Sun Valley Ski Educ. Found., Inc., 130 Idaho 400,
941 P.2d 1301 (1997); Siglow v. Smart, 43 Ohio App.3d 55, 539 N.E.2d 636
(1987) (“Express assumption of risk is either oral or written consent to a
dangerous activity or condition.”).
6 E.g., Deuley v. DynCorp Int’l, Inc., 8 A.3d 1156, 31 I.E.R. Cas.
(BNA) 1849 (Del. 2010), cert. denied, 131 S. Ct. 2119, 179 L. Ed. 2d 894, 32
I.E.R. Cas. (BNA) 128 (2011) (liability clause in employment contract
clearly and unambiguously released the employer from any liability for
employees’ deaths or injuries, thus barring a wrongful death claim by
employee’s survivors); Thompson v. Hi Tech Motor Sports, Inc., 183 Vt.
218, 945 A.2d 368 (2008) (but not waiving negligent misrepresentation
claim); Moore v. Waller, 930 A.2d 176 (D.C. 2007); Boyle v. Revici, 961
F.2d 1060 (2d Cir. 1992); Restatement Third of Torts (Apportionment of
Liability) § 2 (2000).
7 Many courts simply say that a valid release bars the plaintiff’s
claims. See, e.g., Howard v. Chimps, Inc., 251 Or. App. 636, 284 P.3d 1181
(2012) (upholding release to bar claims based on negligence and strict
liability against operator of chimpanzee sanctuary).
8 E.g., Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001)
(release signed by all-terrain vehicle rider); Jones v. Dressel, 623 P.2d 370
(Colo. 1981) (sky-diving); Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889
(2001) (release signed by pit crew).
9 Shorter v. Drury, 103 Wash.2d 645, 695 P.2d 116 (1985) (patient
religiously opposed to blood transfusions specifically released surgeon in
advance of operation); cf. Estate of Reinen v. Northern Ariz. Orthopedics,
Ltd., 198 Ariz. 283, 9 P.3d 314 (2000) (treating patient’s religious refusal of
blood transfusions as issue of contributory negligence or assumption of
risk, which, under Arizona’s constitution, was for the jury).
10 E.g., Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012)
(against public policy for a pre-injury release to relieve a party of liability
for reckless conduct); Pearce v. Utah Athletic Found., 179 P.3d 760 (Utah
2008); Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd. P’ship, 115
Haw. 201, 166 P.3d 961 (2007) (declaring unenforceable any releases that
purport to cover “intentional or reckless conduct”); cf. City of Santa
Barbara v. Superior Court, 41 Cal.4th 747, 161 P.3d 1095, 62 Cal.Rptr.3d
527 (2007) (release invalid to the extent it purported to apply to future
gross negligence of operators of city-sponsored recreational program for
developmentally disabled children).
11 See, e.g., Murphy v. North Am. River Runners, Inc., 186
W.Va.310, 412 S.E.2d 504 (1991); see also Restatement Second of Torts §
496B & cmt. b (1965) (allowing express waivers of “negligent or reckless
conduct”). The Restatement Third would go one step further and accept a
release of “intentional or reckless conduct” and even “an intentional tort.”
Restatement Third of Torts (Apportionment of Liability) § 2 cmts. g & f
(2000). It seems unlikely that many, if any courts, will extend acceptance
of exculpatory clauses this far, at least when the intentional tort involves
an intent to harm.
12 Cohen v. Five Brooks Stable, 159 Cal.App.4th 1476, 72
Cal.Rptr.3d 471 (2008) (“Contract principles apply when interpreting a
release, and normally the meaning of contract language, including a
release, is a legal question.”). A number of courts have stressed “freedom of
contract” as fundamental to the general rule enforcing such agreements.
See, e.g., Morrison v. Northwest Nazarene Univ., 152 Idaho 660, 273 P.3d
1253, 278 Ed. Law Rep. 625, 34 I.E.R. Cas. (BNA) 1077 (2012).
13 Zipusch v. LA Workout, Inc., 155 Cal.App.4th 1281, 66
Cal.Rptr.3d 704 (2007) (ambiguities construed against drafter; “voiding
the purported release”).
14 See, e.g., Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885
A.2d 734 (2005) (justifying stricter scrutiny because “exculpatory
provisions undermine the policy considerations governing our tort
system”); Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001) (exculpatory
contracts are “strictly construed against the party relying on them”
because of the “public policy concern encouraging the exercise of care”);
Fujimoto v. Au, 95 Haw. 116, 19 P.3d 699 (2001) (“Exculpatory contracts
are not favored by the law because they tend to allow conduct below the
acceptable standard of care.”).
15 Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306
(1979); Sweeney v. City of Bettendorf, 762 N.W.2d 873 (Iowa 2009); Cohen
v. Five Brooks Stable, 159 Cal.App.4th 1476, 72 Cal.Rptr.3d 471 (2008).
16 Provoncha v. Vermont Motocross Ass’n, 964 A.2d 1261 (Vt. 2009)
(citing Restatement Third of Torts (Apportionment of Liability) § 2 cmts. d
& e (2000)).
17 See, e.g., Richards v. Richards, 181 Wis.2d 1007, 513 N.W.2d 118
(1994) (quoting: “This court will not favor an exculpatory contract that is
broad and general in its terms.”); Jesse v. Lindsley, 149 Idaho 70, 233 P.3d
1 (2008) (release in residential lease voided for overbreadth). But see, e.g.,
Booth v. Santa Barbara Biplanes, LLC, 158 Cal.App.4th 1173, 70
Cal.Rptr.3d 660 (2008), upholding a clearly-drafted but very broad release.
18 See, e.g., Atkins v. Swimwest Family Fitness Ctr., 691 N.W.2d 334
(Wis. 2005).
19 E.g., Littlefield v. Schaefer, 955 S.W.2d 272 (Tex. 1997); Yauger v.
Skiing Enters., Inc., 206 Wis.2d 76, 557 N.W.2d 60 (1996); Vodopest v.
MacGregor, 128 Wash.2d 840, 913 P.2d 779 (1996).
20 Donahue v. Ledgends, Inc., 331 P.2d 342 (Alaska 2014); Layden v.
Plante, 101 A.D.3d 1540, 957 N.Y.S.2d 458 (2012) (“[a]n agreement that
seeks to release a defendant from the consequences of his or her own
negligence must ‘plainly and precisely’ state that it extends this far,” and
holding that because the release at issue in the case “makes no
unequivocal reference to any negligence or fault” of the defendant, it does
not bar the plaintiff’s negligence claim).
21 E.g., McGrath v. SNH Dev., Inc., 158 N.H. 540, 969 A.2d 392
(2009) (negligence claim held to fall within the terms of a liability release).
22 E.g., Cohen v. Five Brooks Stable, 159 Cal.App.4th, 72 Cal.Rptr.3d
471 (2008); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001).
23 E.g., Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005) (holding that a
wrongful death claim was not barred by an exculpatory clause, noting that
the agreement was ambiguous and “could reasonably be construed” to
release defendant only from a limited subset of potential legal claims).
24 Not infrequently, courts incorporate contract-law limitations into
their public policy conceptions, saying that a release void for contract-law
reasons such as bargaining-power disparity or overbreadth is
unenforceable as a matter of public policy. See, e.g., McGrath v. SNH Dev.,
Inc., 158 N.H. 540, 969 A.2d 392 (2009); Yauger v. Skiing Enters., Inc., 206
Wis.2d 76, 557 N.W.2d 60 (1996). Other courts more clearly separate the
contract analysis from the public policy one. See, e.g., Thompson v. Hi
Tech Motor Sports, Inc., 183 Vt. 218, 945 A.2d 368 (2008); Moore v.
Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001).
25 Cf. Langemo v. Montana Rail Link, Inc., 38 P.2d 782 (Mont. 2001)
(indemnity agreement under which plaintiff, injured in collision with a
train at a private crossing on defendant’s railroad, had agreed to
indemnify the railroad would not exempt railroad from liability for its own
proportionate share of the negligence).
26 Tunkl v. Regents of the Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr.
33, 383 P.2d 441, 6 A.L.R.3d 693 (1963).
27 Tunkl, 60 Cal.2d at 98–101.
28 See, e.g., Provoncha v. Vermont Motocross Ass’n, Inc., 974 A.2d
1261 (Vt. 2009); Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885
A.2d 734 (2005) (listing and classifying several jurisdictional variations).
29 Restatement Third of Torts (Apportionment of Liability) § 2 cmt. e
(2000).
30 See § 33.17.
31 Vodopest v. MacGregor, 128 Wash.2d 840, 913 P.2d 779 (1996).
Federal regulations governing research on human subjects require
informed consent without either exculpatory language or a release of the
researcher. 45 C.F.R. § 46.116.
32 Wagenblast v. Odessa Sch. Dist. No. 105–157–166J, 110 Wash.2d
845, 758 P.2d 968 (1988); see also Kyriazis v. Univ. of W. Va., 192 W.Va.
60, 450 S.E.2d 649 (1994) (state university sponsored club rugby a “public
service;” release therefore void as a matter of public policy). But cf. Joseph
H. King, Jr., Exculpatory Agreements for Volunteers in Youth Activities—
The Alternative to “Nerf®” Tiddlywinks, 53 Ohio St. L.J. 683 (1992)
(favoring effective exculpatory agreement for volunteers and sponsoring
entities in youth activities).
33 Gavin W. v. YMCA of Metro. Los Angeles, 106 Cal.App.4th 662,
131 Cal.Rptr.2d 168 (2003) (“To permit a child care provider to contract
away its duty to exercise ordinary care is, in any event, antithetical to the
very nature of child care services”).
34 Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds,
14 So.3d 695 (Miss. 2009).
35 E.g., Berrios v. United Parcel Serv., 265 N.J.Super. 436, 627 A.2d
701 (1992), aff’d per curiam, 265 N.J.Super. 368, 627 A.2d 665 (1993)
(parking lot owners cannot exempt themselves from liability for negligent
care to vehicle owner).
36 Interstate carriers subject to federal control are permitted to limit
liability under specified circumstances. See, e.g., 49 U.S.C.A. § 11706 (c)
(provisions for limits by rail carriers).
37 E.g., Southwestern Pub. Serv. Co. v. Artesia Alfalfa Growers’
Ass’n, 67 N.M. 108, 353 P.2d 62 (1960).
38 Lloyd v. Sugarloaf Mtn. Corp., 833 A.2d 1(Me. 2003) (organizer of
bike race); McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C.
242, 612 S.E.2d 462 (Ct. App. 2005) (paintball game provider); Lewis
Operating Corp. v. Superior Court, 200 Cal.App.4th 940, 132 Cal.Rptr.3d
849 (2011) (apartment complex’s tenant-only exercise facility waiver was
valid but clause related to basic or essential common areas would not be).
39 Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734
(2005) (customer’s advance release of snowtubing facility for its negligence
is against public policy and ineffective); Reardon v. Windswept Farm,
LLC., 280 Conn. 153, 905 A.2d 1156 (2006) (extending Hanks to horseback
riding); Berlangieri v. Running Elk Corp., 134 N.M. 341, 76 P.3d 1098
(2003) (statute expressed policy that equine operators should be held
accountable for their negligence, release to the contrary violated public
policy); Bagley v. Mt. Bachelor, Inc., 340 P.3d 27 (Or. 2014) (safety of
patrons of ski area was a matter of broad social concern; enforcing
exculpatory clause would be unacceptable); Dalury v. S-K-I, Ltd., 164 Vt.
329, 670 A.2d 795 (1995) (ski resort’s general exculpatory agreement
invalid). Factors emphasized in the Connecticut cases as grounds for
disregarding the release in advance, include these: “(1) the societal
expectation that family oriented activities will be reasonably safe; (2) the
illogic of relieving the party with greater expertise and information
concerning the dangers associated with the activity from the burden of
proper maintenance of the snowtubing run; and (3) the fact that the
release at issue was a standardized adhesion contract, lacking equal
bargaining power between the parties, and offered to the plaintiff on a
take it or leave it basis.” See Reardon, 280 Conn. at 161, 905 A.2d at 1161.
40 See Brown v. Soh, 280 Conn. 494, 909 A.2d 43 (2006); Edgin v.
Entergy Operations, Inc., 331 Ark. 162, 961 S.W.2d 724 (1998); Lakube v.
Cohen, 304 Mass. 156, 23 N.E.2d 144 (1939); Pittsburgh, C. C. & St. L. Ry.
v. Kinney, 95 Ohio St. 64, 115 N.E. 505 (1916).
41 Sweeney v. City of Bettendorf, 762 N.W.2d 873 (Iowa 2009);
Kirton v. Fields, 997 So.2d 349 (Fla. 2008); Hojnowski v. Vans Skate Park,
187 N.J. 323, 901 A.2d 381 (2006); Woodman v. Kera, LLC, 280 Mich.App.
125, 760 N.W.2d 641 (2008) (Michigan “strictly adheres to the common-law
preclusion of parental authority in these situations, recognizing only very
limited and specific statutory exceptions”).
42 Galloway v. State, 790 N.W.2d 252, 261 Ed. Law Rep. 819 (Iowa
2010) (14-year-old student on educational field trip organized by
university and state).
43 BJ’s Wholesale Club, Inc. v. Rosen, 80 A.3d 345 (Md. 2013) (child
injured in play area); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d
738 (2002) (voluntary high-school cheerleading program); Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201 (1998); Hohe v. San
Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
(school-sponsored event).
44 Galloway v. State, 790 N.W.2d 252, 261 Ed. Law Rep. 819 (Iowa
2010).
45 See Martin County Coal Corp. v. Universal Underwriters Ins. Co.,
727 F.3d 589 (6th Cir. 2013) (can’t contract away liability where liability
rests on mine-safety statute); Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005)
(“A party cannot contract away liability for damages caused by that party’s
failure to comply with a duty imposed by a safety statute.”); Finch v.
Inspectech, LLC, 229 W.Va. 147, 727 S.E.2d 823 (2012) (home inspection
statute). See also Marcinczyk v. State of N.J. Police Training Comm’n, 203
N.J. 586, 5 A.3d 785, 31 I.E.R. Cas. (BNA) 745 (2010) (training at county
police academy).
46 See, e.g., Rothstein v. Snowbird Corp., 175 P.3d 560 (Utah 2007)
(release purporting to waive all claims against ski resort unenforceable as
contrary to public policy in light of statute that immunizes ski operators
from liability for inherent risks); but see Penunuri v. Sundance Partners,
Ltd., 301 P.3d 984 (Utah 2013).
47 See, e.g., Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 31
A.3d 583 (2011) (continuing to apply the traditional implied assumption of
risk rule; state also continues to follow complete bar version of
contributory negligence, and the two defenses often overlap).
48 Restatement Third of Torts (Apportionment of Liability) § 2 cmt. i
(2000).
49 Tucker v. Lombardo, 47 Cal.2d 457, 303 P.2d 1041 (1956) (12-
year-old working on skeet shooting range); Greaves v. Galchutt, 289 Minn.
335, 184 N.W.2d 26 (1971) (11- and 12-year-old boys playing with gun they
thought unloaded).
50 See H.R.H. Metals, Inc. v. Miller, 833 So.2d 18 (Ala. 2002)
(subjective standard for assumption of risk); Myers v. Boleman, 151
Ga.App. 506, 260 S.E.2d 359 (1979) (assumption of risk “applies only
where the plaintiff, with full appreciation of the danger involved and
without restriction from his freedom of choice … deliberately chooses an
obviously perilous course of conduct”); Duda v. Phatty McGees, 758
N.W.2d 754 (S.D. 2008).
51 Crews v. Hollenbach, 358 Md. 627, 751 A.2d 481 (2000) (plaintiff
who worked for gas company was severely injured in an explosion during a
repair; claim asserting negligence of contractor who was working on an
underground cable and broke a hole in the gas line barred).
52 Restatement Second of Torts § 496C (1965). Even those who wish
to retain the formal language of assumption of risk for a narrow class of
implied assumption of the risk cases agree that knowing confrontation of a
risk is not equivalent to a consent that should bar the plaintiff. See
Kenneth W. Simons, Reflections on Assumption of Risk, 50 U.C.L.A. L.
Rev. 481 (2002).
53 See Crews v. Hollenbach, 358 Md. 627, 751 A.2d 481 (2000).
Another example is Curtis v. Traders Nat’l Bank, 314 Ky. 765, 237 S.W.2d
76 (1951) (customer entering a bank during a rainstorm tried to walk
carefully through water accumulated on the marble floor but slipped; court
held that she assumed the risk).
54 Spahn v. Town of Port Royal, 326 S.C. 632, 486 S.E.2d 507 (Ct.
App. 1997), aff’d on other grounds, 330 S.C. 168, 499 S.E. 205 (1998)
(plaintiff attempted to move a boat that had fallen onto the highway; jury
can evaluate assumption of risk, although plaintiff was not consenting to
driver’s negligence).
55 See Peter H. Schuck, Rethinking Informed Consent, 103 Yale L.J.
899, 912 (1994) (assumption of risk as a “culturally constructed and highly
normative doctrine” rather than a “fact”).
56 The details and qualifications to this traditional idea are covered
in Chapter 20.
57 See DeAmiches v. Popczun, 35 Ohio St.2d 180, 299 N.E.2d 265
(1973) (plaintiff returning to her rented home in icy weather could not see
unrepaired hole under snow; assumption of the risk for fall although it
was not unreasonable to return home). See also Morgan State Univ. v.
Walker, 397 Md. 509, 919 A.2d 21 (2007) (plaintiff was visiting her
daughter at the university in order to bring her money she needed slipped
on the ice and broke her leg; she assumed the risk of injury by walking on
ice).
58 See, e.g., Beninati v. Black Rock City, LLC, 175 Cal.App.4th 650,
96 Cal.Rptr.3d 105 (2009) (holding that a festival promoter owed no duty
to an attendee who walked directly into an area of burning embers, where
the risk was obvious).
59 For a succinct history, see Dilan A. Esper & Gregory C. Keating,
Abusing “Duty,” 79 S. Cal. L. Rev. 265, 291–95 (2006). See also Perez v.
McConkey, 872 S.W.2d 897 (Tenn. 1994) (tracing history of assumption of
risk back to Roman times and recounting nineteenth-century development
in England).
60 See, e.g., Wilson v. Lindamood Farms, Inc., 675 S.W.2d 187 (Tenn.
Ct. App. 1984) (“ordinary risks are assumed by an employee whether he is
actually aware of them or not; for the dangers and risks that are normally
or necessarily incident to his occupation are presumably taken into
account in fixing his rate of wages”); Grant v. Nihill, 64 Mont. 420, 210 P.
914 (1922) (“A servant by the act of entering the service of his master
assumes all the usual and ordinary risks attendant upon his employment,
not including risks arising from the negligence of the master, and he
assumes the latter as well if he knows of the defects from which they arise
and appreciates the dangers which flow from such defects.”); Lamson v.
American Axe & Tool Co., 58 N.E. 585 (Mass. 1900) (barring worker from
suing his employer for on-the-job injury on the ground that he knew of the
particular danger yet “stayed, and took the risk”).
61 See Siragusa v. Swedish Hosp., 60 Wash.2d 310, 373 P.2d 767
(1962).
62 E.g., Murray v. South Carolina R.R., 11 S.C.L. (2 McMul. 166)
(S.C. 1841). The idea originated in Priestly v. Fowler, 3 M. & W. 1 (Exch.
1837), where Lord Abinger argued that the employee was in the best
position to protect himself from co-workers and should bear the risk for
that reason.
63 Assumption of risk as a complete defense was abrogated by the
Federal Employers’ Liability Act (FELA) as to interstate railroad
employees. 45 U.S.C.A. § 53.
64 Courts that continue to use implied assumption of risk to bar a
claim entirely adhere to this rule. See Thomas v. Panco Mgmt. of Md.,
LLC, 423 Md. 387, 31 A.3d 583 (2011) (finding contested issue of fact as to
whether tenant had a reasonably safe alternative path to the one taken,
when she slipped on ice when exiting her apartment).
65 Ridgway v. Yenny, 223 Ind. 16, 57 N.E.2d 581 (1944). Cf. Pettry v.
Rapid City Area Sch. Dist., 630 N.W.2d 705 (S.D. 2001) (“the alternatives
confronting her on the night of her fall were to park in the dark, icy street
and walk a block or more to the gymnasium or to park in the dark, icy
playground and walk only a few steps to the gymnasium”).
66 Some states accomplished this by statute. See, e.g., Patch v.
Hillerich & Bradsby Co., 361 Mont. 241, 257 P.3d 383, Prod. Liab. Rep.
(CCH) P 18669 (2011) (applying Mont. Code Ann. § 27–1–719(5)(a), which
allows a product manufacturer to use assumption of risk as a complete
defense if the “consumer of the product discovered the defect or the defect
was open and obvious,” construing it to apply only when “the victim
actually knew he or she would suffer serious injury or death,” a subjective
standard of knowledge).
67 See Get-N-Go, Inc. v. Markins, 544 N.E.2d 484 (Ind. 1989); see
also Poole v. Coakley & Williams Constr., Inc., 423 Md. 91, 31 A.3d 212
(2011); Duda v. Phatty McGees, Inc., 758 N.W.2d 754 (S.D. 2008); Jay v.
Moog Auto., Inc., 264 Neb. 875, 652 N.W.2d 872 (2002) (defendant
manufacturer produced no evidence of “subjective, conscious choice on
[plaintiff’s] part to voluntarily expose himself to the risk”).
69 Stephen D. Sugarman, Assumption of Risk, 31 Val. U. L. Rev. 833,
835 (1997).
70 See, e.g., Gilson v. Drees Bros., 19 Wis.2d 252, 120 N.W.2d 63
(1963); Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971); Arnold v.
City of Cedar Rapids, Iowa, 443 N.W.2d 332 (Iowa 1989); Perez v.
McConkey, 872 S.W.2d 897 (Tenn. 1994). Meistrich v. Casino Arena
Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208 (1959),
initiated the trend towards this view.
71 The arguments for the abolition of assumption of risk as a
separate defense are thrashed out in a Symposium, 22 La. L. Rev. 1
(1961).
72 John Diamond, Assumption of Risk after Comparative Negligence:
Integrating Contract Theory into Tort Doctrine, 52 Ohio St. L.J. 717
(1991), is very helpful on the translation of old assumption of risk into
contemporary doctrines of limited duty and comparative fault.
73 Ind. Code § 34–6–2–45 (fault defined to include certain types of
assumption of risk); Mass Gen. L. Ann. ch. 231, § 85 (defense abolished).
74 See, e.g., Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho
2013); Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696
(1992); Green v. Mid Dakota Clinic, 673 N.W.2d 257 (N.D. 2004); Hale v.
Beckstead, 116 P.3d 263 (Utah 2005); King v. Kayak Mfg. Corp., 182
W.Va. 276, 387 S.E.2d 511 (1989); Anderson v. Ceccardi, 6 Ohio St.3d 110,
451 N.E.2d 780 (1983).
75 See, e.g., Patterson Enters. Inc. v. Johnson, 272 P.3d 93 (Mont.
2012) (using the old assumption of the risk terminology but awarding
damages in line with comparative fault); Morgan v. State, 90 N.Y.2d 471,
685 N.E.2d 202 (1997) (using both assumption of risk and limited-duty
language).
76 Simmons v. Frazier, 277 Ark. 452, 642 S.W.2d 314 (1982).
77 Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013)
(implied assumption of risk, whether in its “primary” or “secondary” form,
is no longer a valid defense; to allow it is “inconsistent with our
comparative negligence system”); Simmons v. Porter, 312 P.3d 345 (Kan.
2013) (implied assumption of risk no longer viable after comparative
fault).
78 E.g., Shorter v. Drury, 103 Wash.2d 645, 695 P.2d 116 (1985).
(2000).
80 Assumption of Risk and Consent in the Law of Torts: A Theory of
Full Preference, 67 B.U. L. Rev. 213 (1987).
81 See, e.g., Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502
N.E.2d 964 (1986); King v. Kayak Mfg. Corp., 182 W.Va. 276, 387 S.E.2d
511 (1989). In some cases it is possible to think of the plaintiff’s consent or
agreement to the defendant’s conduct as a kind of equitable estoppel that
bars the plaintiff’s claim. See Geddes v. Mill Creek Country Club, Inc., 196
Ill.2d 302, 751 N.E.2d 1150, 256 Ill.Dec. 313 (2001) (plaintiff agreed to
layout of golf course on adjoining land, now suffers thousands of golf balls,
but since defendant built in reliance, the plaintiff is equitably estopped to
complain).
82 See Berberian v. Lynn, 179 N.J. 290, 845 A.2d 122 (2004); Creasy
v. Rusk, 730 N.E.2d 659 (Ind. 2000) (nurse had duty to patient, not the
other way around); Gregory v. Cott, 331 P.3d 179 (Cal. 2014); Anicet v.
Gant, 580 So.2d 273 (Fla. Dist. Ct. App. 1991); Gould v. American Family
Mut. Ins. Co., 543 N.W.2d 282 (Wis. 1996).
83 She might, of course, recover on different grounds where the
physician committed some independent act of negligence, or where the
physician induced her to accept experimental treatments by fraud. See
Heinrich v. Sweet, 308 F.3d 48 (1st Cir. 2002) (plaintiff’s informed consent
to experimental treatment barred medical malpractice claim based on
choice of treatment, although it would not bar a malpractice claim based
upon independent negligence, as where surgeon leaves scalpel in the
plaintiff’s body).
84 E.g., Boyle v. Revici, 961 F.2d 1060 (2d Cir. 1992) (on very similar
facts, jury could find assumption of risk).
86 E.g., Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978);
Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964 (1986); Knight v. Jewett, 3
Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (1992); Leonard v. Behrens,
601 N.W.2d 76 (Iowa 1999); Sullivan-Coughlin v. Palos Country Club, Inc.,
349 Ill.App.3d 553, 812 N.E.2d 496, 285 Ill.Dec.676 (2004); Yoneda v. Tom,
110 Haw. 367, 133 P.3d 796 (2006).
87 See Allen v. Dover Co-Recreational Softball League, 148 N.H. 407,
807 A.2d 1274 (2002) (giving history of assumption of risk, including
primary and secondary forms, citing many cases from various states). See
also Dilan A. Esper & Gregory C. Keating, Abusing “Duty,” 79 S. Cal. L.
Rev. 265, 292 (2006) (analyzing development of “primary” and “secondary”
terminology). Torts scholar Fleming James appears to have invented the
terminology as a matter of bringing some coherence to the law by
distinguishing contributory negligence from the absence of duty, long
before the widespread adoption of comparative fault principles. See
Fleming James, Jr., Contributory Negligence, 62 Yale L.J. 691 (1953).
88 See Spar v. Cha, 907 N.E.2d 974 (Ind. 2009) (holding that primary
assumption of risk “may not require pleading as an affirmative defense”
under local Trial Rule because it “negate[s] an element of the claim”);
Bennett v. Hidden Valley Golf & Ski, Inc., 318 F.3d 868 (8th Cir. 2003)
(Mo. law) (“Because the doctrine of implied assumption of risk focuses on
whether the defendant owed a duty to the plaintiff with respect to the risk
in question, it is not strictly an affirmative defense.”).
89 E.g., Schneider v. Erickson, 654 N.W.2d 144 (Minn. Ct. App. 2002)
(both primary and secondary assumption of risk “usually a question for the
jury, unless the evidence is conclusive”).
90 See, e.g., Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 111 P.3d
1003 (2005). Even in the face of such a provision, a court may find that
primary assumption of risk remains a question of law for the judge
because it goes to duty. See Tucker v. ADG, Inc., 102 P.3d 660 (Okla.
2004).
91 Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172 (Nev.
2008); Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 659
N.E.2d 1232 (1996).
92 Neighbarger v. Irwin Indus., Inc., 8 Cal.4th 532, 882 P.2d 347, 34
Cal.Rptr.2d 630 (1994) (Mosk, J.).
93 Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994). See also Tiller
v. Atlantic Coast Line R.R., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943)
(Frankfurter, J., concurring).
94 Edward C. v. City of Albuquerque, 148 N.M. 646, 241 P.3d 1086
(2010) (reviewing many jurisdictional approaches, concluding that a jury
question is presented on whether the limited duty is breached upon a
showing that the defendant stadium owner or occupant “has done
something to increase the risks beyond those necessary or inherent to the
game, or to impede a fan’s ability to protect himself or herself”), overruled
on other grounds, Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 326
P.3d 465, 468 (N.M. 2014); Creel v. L & L, Inc., 287 P.3d 729 (Wyo. 2012)
(duty of golf tournament official was only to not increase the risks to
spectators, beyond the inherent risk that spectators would be struck by a
golf ball; fact issues on that issue precluded summary judgment);
Sciarrotta v. Global Spectrum, 194 N.J. 345, 944 A.2d 630 (2008); Hurst v.
East Coast Hockey League, Inc., 371 S.C. 33, 637 S.E.2d 560 (2006);
Tucker v. ADG, Inc., 102 P.3d 660 (Okla. 2004); McGarry v. Sax, 158
95 Arnold v. City of Cedar Rapids, Iowa, 443 N.W.2d 332 (Iowa 1989);
Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 424 N.E.2d 531, 441
N.Y.S.2d 644 (1981). See also, criticizing the rule as removing the
incentive for stadium owners to update safety measures as sports and
technology change, David Horton, Comment, Rethinking Assumption of
Risk and Sports Spectators, 51 U.C.L.A. L. Rev. 339 (2003).
96 Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013 (Utah 1995)
(foul ball); Gilchrist v. City of Troy, 67 N.Y.2d 1034, 494 N.E.2d 1382, 503
N.Y.S.2d 717 (1986) (puck). But see South Shore Baseball, LLC v.
DeJesus, 11 N.E.3d 903 (Ind. 2014) (suggesting that no sport, even
baseball, merits its own special rule of liability).
97 King v. Kayak Mfg. Corp., 182 W.Va. 276, 387 S.E.2d 511 (1989).
98 Hurst v. East Coast Hockey League, Inc., 371 S.C. 33, 637 S.E.2d
560 (2006) (quoting; also noting that assumption of risk in this sense is not
an affirmative defense but a conclusion that the defendant owes no duty or
is not negligent with respect to risks that cannot be reduced by further
care).
99 As in, e.g., Boyer v. Iowa High Sch. Athletic Ass’n, 260 Iowa 1061,
152 N.W.2d 293 (1967) (collapsing bleachers, res ipsa loquitur applicable).
100 Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184
(Mo. 2014) (en banc) (risk of injury from being struck by hot dog thrown
into the stands by team mascot was not an inherent risk of watching
baseball); FCH1, LLC v. Rodriguez, 335 P.3d 183 (Nev. 2014) (being
injured when a patron in a sports bar dove for a tossed souvenir was not
an inherent risk of watching a television game in a sports bar).
101 Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546
(1978) (baseball stadium so designed that patron was at risk from batted
balls while she was walking on an interior concourse; this design is not an
inherent, ordinary, or expected risk of baseball, so the no-duty rule did not
apply).
102 See Sunday v. Stratton, 136 Vt. 293, 390 A.2d 398 (1978). The ski
industry has prevailed upon legislatures to enact protective statutes
which, in some states, provide that the skier assumes risks inherent in the
sport. Some other businesses have secured similar legislation intended to
offer protection. See Derricotte v. United Skates of Am., 350 N.J. Super.
227, 794 A.2d 867 (2002) (reflecting a roller skating statute and adoption
of similar statutes in a number of states). The statutes may offer less
protection than intended, since “an inherent risk is one that cannot be
removed through the exercise of due care.” Brett v. Great Am. Recreations,
Inc., 144 N.J. 479, 499, 677 A.2d 705, 715 (1996). But some statutes
appear to force individuals to assume risks of hidden dangers that could
have been corrected by the operators’ reasonable care. See Utah Code Ann.
§ 78–27–51.
103 Halpern v. Wheeldon, 890 P.2d 562 (Wyo. 1995). A number of
states have now passed equine recreation statutes which, like the ski
statutes, are aimed at limiting liability.
104 Cohen v. Five Brooks Stable, 159 Cal.App.4th 1476, 72
Cal.Rptr.3d 471 (2008) (no duty to reduce risks of harm inherent in sport,
but reckless conduct of trail guide is not an inherent risk of horse riding);
Luna v. Vela, 169 Cal.App.4th 102, 86 Cal.Rptr.3d 588 (2008) (host of
volleyball match owed a duty only to not increase the inherent risks of the
sport).
105 See Barrett v. Mt. Brighton, Inc., 474 Mich. 1087, 712 N.W.2d 154
(2006) (describing a snowboarding rail as an inherent risk of skiing, which
was defined broadly in the governing statute, with dissents arguing to the
contrary); Rayeski v. Gunstock Area/Gunstock Area Comm’n, 776 A.2d
1265 (N.H. 2001) (concluding that the dangers of an unpadded light pole to
late-afternoon skiers was inherent in skiing); Avila v. Citrus Cmty. Coll.
Dist., 38 Cal.4th 148, 162, 131 P.3d 383, 392, 41 Cal.Rptr. 3d 299, 309
(2006) (opining that intentionally pitching a ball to hit the batter in the
head in a community college game would be an inherent risk of the sport).
106 Karas v. Strevell, 227 Ill.2d 440, 884 N.E.2d 122, 318 Ill.Dec. 567
(2008); Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696
(1992) (conduct must be so reckless “as to be totally outside the range of
the ordinary activity involved in the sport”); Nabozny v. Barnhill, 31
Ill.App.3d 212, 334 N.E.2d 258, 77 A.L.R.3d 1294 (1975) (soccer; deliberate
prohibited kick could be actionable); Horvath v. Ish, 134 Ohio St. 3d 48,
979 N.E.2d 1246 (2012) (plaintiff skier injured in a collision with a
snowboarder had to prove that the snowboarder acted recklessly or
intentionally).
107 See Noffke v. Bakke, 315 Wis.2d 350, 760 N.W.2d 156 (2009)
(applying Wisc. Stat. Ann. § 895.525(4m)(a), which immunizes
participants in “contact sports” from negligence claims, to bar a negligence
suit by one high-school cheerleader against another).
108 See also Sherry v. East Suburban Football League, 292 Mich.App.
23, 807 N.W.2d 859 (2011) (ordinary care standard applied, rather than
reckless-misconduct “co-participant” standard, in suit by injured
cheerleader against franchise member of football league, league,
cheerleading coach, and cheerleading coordinator; none of the defendants
were co-participants in the recreational activity of cheerleading).
109 Avila v. Citrus Cmty. Coll. Dist., 38 Cal.4th 148, 162, 131 P.3d
383, 392, 41 Cal.Rptr. 3d 299, 309 (2006). Although the negligence claim
was considered in “no duty” terms, the potential battery claim was
defeated on the ground that the batter consented to the pitcher’s
intentional act of hitting him in the head with a “bean ball.” Cf. Distefano
v. Forester, 85 Cal.App.4th 1249, 102 Cal.Rptr.2d 813 (2001) (off-roading,
collision atop a blind hill, defendant’s violation of speed statute is not a
breach of duty owed, since, even if reckless, the defendant did not act
totally outside the range of ordinary activity in the sport).
110 See Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d
964 (1986). Some states have statutes that define the “inherent risks” of
particular sports. See Jackson Hole Mountain Resort Corp. v. Rohrman,
150 P.3d 167 (Wyo. 2006) (looking at other states’ statutes on inherent
risks of skiing and as guide to a common-law determination).
111 Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989); Turcotte v.
Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986).
112 Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.
1979).
113 Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989).
114 Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964
(1986).
115 See Stephen D. Sugarman, Assumption of the Risk, 31 Val. U. L.
Rev. 833 (1997).
116 Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696
(1992).
117 Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997).
118 Crawn v. Campo, 136 N.J. 494, 643 A.2d 600 (1994); Chrismon v.
Brown, 246 S.W.3d 102 (Tex. App. 2007).
119 Leonard v. Behrens, 601 N.W.2d 76 (Iowa 1999); cf. Schneider v.
Erickson, 654 N.W.2d 144 (Minn. Ct. App. 2002) (paintball-game
participant held to have primarily assumed the risk of being shot in the
eye).
120 Pfister v. Shusta, 167 Ill.2d 417, 657 N.E.2d 1013, 212 Ill.Dec. 668
(1995) (kicking a crushed can in dormitory lobby); Marchetti v. Kalish, 53
Ohio St. 3d 95, 559 N.E.2d 699 (1990) (child’s game of kick-the-can); but cf.
Yount v. Johnson, 121 N.M. 585, 915 P.2d 341 (Ct. App. 1996) (limited
duty rule inapplicable to horseplay between teenaged young men).
121 Gentry v. Craycraft, 101 Ohio St. 3d 141, 802 N.E.2d 1116 (2004)
(limited-duty rule applied to bar a child who was participating with other
children in the activity of pounding nails into wood).
122 See Bangert v. Shaffner, 848 S.W.2d 353 (Tex. App. 1993)
(parasail harnessed upside down with disastrous results, ordinary care
standard applied).
123 See, e.g., Feld v. Borkowski, 790 N.W.2d 72 (Iowa 2010) (limited-
duty rule applies only to “contact sports”; in such sports, the participants
know and understand the inherent risks of injury, including injuries that
result from improper execution of an activity contemplated by the sport;
issue of fact in the case whether a softball batter who allowed the bat to fly
out of his hands, striking the plaintiff who was playing first base, was
acting recklessly).
124 See Hendricks v. Broderick, 284 N.W.2d 209 (Iowa 1979) (decided
when Iowa was still using the assumption of risk terminology; no
assumption of the risk of another hunter’s negligence); Knight v. Jewett, 3
Cal.4th 296, 11 Cal.Rptr. 2d 2, 834 P.2d 696 (1992) (cautioning that the
sports rule might not apply to less active sports and pointing out that the
reasonable care standard was routinely applied to hunters).
125 Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849
A.2d 813 (2004).
126 Custodi v. Town of Amherst, 20 N.Y.3d 83, 957 N.Y.S.2d 268, 980
N.E.2d 933 (2012) (refusing to extend the application of primary
assumption of risk to a case in which the plaintiff fell while rollerblading
in her residential neighborhood; to recognize the primary assumption of
risk in this case, the court said, “would create an unwarranted diminution
of the general duty of landowners—both public and private—to maintain
their premises in a reasonably safe condition.”).
127 Pfister v. Shusta, 167 Ill.2d 417, 657 N.E.2d 1013, 212 Ill.Dec. 668
(1995) (applying the limited duty rule and rejecting, semble, inquiry into
scope of plaintiff’s consent in a spontaneous game without rules).
128 Karas v. Strevell, 227 Ill.2d 440, 884 N.E.2d 122, 318 Ill.Dec. 567
(2008); Gentry v. Craycraft, 101 Ohio St. 3d 141, 802 N.E.2d 1116 (2004)
(concern with “open[ing] the floodgates to a myriad of lawsuits involving
the backyard games of children”); Kahn v. East Side Union High Sch.
Dist., 31 Cal.4th 990, 4 Cal.Rptr.3d 103, 75 P.3d 30 (2003); Leonard v.
Behrens, 601 N.W.2d 76 (Iowa 1999); Jaworski v. Kiernan, 241 Conn. 399,
696 A.2d 332 (1997).
129 Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011) (golf, but holding
that any limited duty rules for sports participants would violate the
statutory comparative fault act); American Powerlifting Ass’n v. Cotillo,
401 Md. 658, 934 A.2d 27 (2007) (powerlifting); Allen v. Dover Co-
Recreational Softball League, 148 N.H. 407, 807 A.2d 1274 (2002)
(softball); Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039
(1994) (horse and dog event); Lestina v. West Bend Mut. Ins. Co., 176
Wis.2d 901, 501 N.W.2d 28 (1993) (recreational soccer). But see Stehlik v.
Rhoads, 253 Wis.2d 477, 645 N.W.2d 889 (2002) (landowner had no duty to
insist on helmet for users of his ATV).
427
Chapter 18
STATUTES OF LIMITATION AND

FEDERAL PREEMPTION
Analysis
A. STATUTES OF LIMITATION
§ 18.6 Tolling, Grace Periods, and Postponed Accrual
B. FEDERAL PREEMPTION
__________
A. STATUTES OF LIMITATION
Basic information. Statutes of limitation almost invariably
prescribe the period of time in which the plaintiff must bring a
given kind of claim, and sometimes counterclaim. The structure of
statutes of limitation, and the periods they prescribe, vary from
state to state and vary as well according to the kind of claim
asserted. In negligence cases, statutes often require the plaintiff to
commence her action within two or three years. Commencement of
the action is defined differently in different systems.1
As an affirmative defense. The statute of limitations, in
contrast, attempts to state a bright-line rule barring claims within
the named class after the period specified in the statute. In most
instances, the defendant has the burden of pleading the statute of
limitations as a defense and the burden of proving facts that show
it has run.2 If the defendant does not plead the statute in a timely
way, the defense is waived.3
428
Reasons for adopting a limitation system. Courts and writers

usually give a variety of reasons for the statute of limitations.4
Sometimes courts suggest that the plaintiff might have “waived”
her claim by her delay in bringing suit,5 but more often they
emphasize justice and process concerns, including those that
follow:
(1) Evidence will deteriorate as memories fade or even
become distorted in ways that cannot be convincingly tested,
so “stale claims” should be barred.
(2) Renewal of an ancient grievance in court may initiate
more conflicts than it resolves; and in any event society
should not use its judicial resources to reignite a conflict that
had been quieted by time.
(3) The defendant, who may not in fact have been a
wrongdoer, is entitled at some point in time to peace of mind
that comes from knowing the potential conflict has burned
out.
(4) The defendant’s ability to manage business or
personal affairs is clouded by a potential law suit; for
instance, he may be unable to borrow money or make
business commitments until claims are resolved; if he does
not in fact know of the potential claims, he may make
financial commitments that prove disastrous in the light of a
late-asserted claim.
(5) For similar reasons, insurers find it costly to insure
against a defendant’s liability for an indefinite time into the
future; these costs represent real costs to society (in the form
of increased premiums for insurance or increased costs of
goods); if these costs can reasonably be avoided by requiring
a prompt suit, society in general is better off.
(6) In some cases, stability of transactions or
relationships has other important social values; a consent to
adoption of a child should not be subject to revocation or
attack long after the child has established a relationship
with adoptive parents, for example.6 In greater or lesser
degree, the same stability or security interests affect many
other potential litigations as well.
(7) Over time, society’s expectations and standards
change, sometimes in ways that society itself does not
perceive immediately; without a limitation, judges or juries
might unjustly impose today’s standards on events that took
place twenty, thirty, or fifty years ago.
Inflexibility. Although these reasons are convincing, none of
them points to any particular time limit. It would be possible to
imagine a system in which judges attempt to estimate, in each
case, whether the plaintiff had waited too long to bring suit. Other
alternatives could include financial disincentives for delayed
filings. Part of the value of the statute is that it provides a bright-
line rule.7 Such a rule excludes a suit brought one
429
day late as well as a claim that is twenty years old.8 So, in spite
of its value, the application of the statute can seem arbitrary or
unjust at times.
Flexibility. Although old claims may be unjust claims, the
general policy of courts is to decide cases on their merits; courts,
not time, should generally decide whether the claim is unjust or
not. Courts infuse a degree of flexibility in applying statutes of
limitation, principally but not exclusively by their control over the
starting time for the statutory clock and by their control over time-
outs or tolling. Sometimes courts can also choose which of several
statutes applies to the case. How flexibly a court applies a statute
of limitations often depends on the underlying claim and the
particular statute of limitations involved.9
Starting the clock: accrual of the claim. The prescriptive period
traditionally began—the statutory clock started to run—when the
plaintiff’s claim accrued. In negligence claims, unlike some others,
the claim did not accrue until (a) the defendant had committed a
negligent act and (b) it had caused legally cognizable harm.10
Act vs. harm. Sometimes, contrary to the rule stated above,
courts say that the claim accrues when the defendant commits the
negligent act. Special statutes aimed at protecting particular
groups may so provide.11 Such a provision could bar the claim
before the plaintiff could sue. If the defendant negligently gives the
plaintiff a dangerous medication in January, but it does not cause
harm until three years later, a two-year statute that begins to run
at the time of the defendant’s act rather than at the time of the
plaintiff’s harm would have run long before the plaintiff had a
cause of action. The traditional view avoids that result by holding
that the claim accrues when damage is done and the plaintiff can
sue.
Undiscovered injury. Under the accrual rule, the plaintiff’s
claim was barred unless she commenced suit within the statutory
time period, even if she was not aware of either harm or negligence
during that period.12 The problem of undiscovered harm is
especially acute when the plaintiff is subjected to toxins that cause
harm slowly over long periods
430
of time. Accordingly, many modern statutes13 and case

decisions14 postpone the accrual date until the plaintiff discovers or
should discover some of the relevant facts. A few medical
malpractice statutes limit the discovery rule to cases in which the
defendant surgeon has left a foreign object in the patient’s body.15
Facts that must be discovered to start the clock. The overriding
discovery rule principle is that the statute begins to run when a
person of reasonable diligence discovers or should have discovered
facts that would show she has a reasonable claim, or facts that
would lead a reasonable person to investigate further.16 A number
of decisions, without formulating definitive rules, have specified
particular facts that would put the plaintiff on notice to sue or
investigate. Given some latitude for differences in the exact
wording, the usual idea seems to be that the statute will not begin
to run until:
(a) all the elements of the tort are present; and
(b) the plaintiff discovers, or as a reasonable person should
have discovered,
(i) that she is injured;17 and
(ii) that the defendant, or the defendant’s product or
instrumentality, had a causal role in the injury,18 or
that there was enough chance that defendant was
connected with the injury to require further
investigation that in turn would have revealed the
defendant’s connection;19 and
(iii) according to some authority, that the defendant may
have been negligent or otherwise legally responsible,
or that there was enough chance that defendant was
legally responsible that a reasonably diligent person
would further investigate the facts showing the
defendant’s responsibility.20 Other authority,
however, starts the
431
statute running upon discovery of injury and causation

without discovery of facts suggesting the defendant’s
fault.21
Discovery of facts and consequences. Some cases emphasize that
the discovery rule does not depend upon discovery of legal rights as
distinct from discovery of facts; if the plaintiff discovers the facts,
her ignorance of legal rules that give her a claim has no effect to
postpone running of the statute.22 Perhaps less debatably, courts
have also said that the rule does not depend upon discovery of all
the consequences of the injury or the full extent of damages.23 If
the plaintiff discovers the injury and its connection to the
defendant, the statute begins to run even if some of its injurious
consequences are not discovered until much later.24 However, if the
plaintiff suffered two distinct injuries, discovery of one does not
start the statute running on the other.25
Not discovering defendant’s connection. If the plaintiff
reasonably believes the injury is not caused by the defendant, and
is not chargeable with knowledge of the defendant’s identity, mere
knowledge of the injury alone is not enough to start the clock.26
But case law27 or statutory language may dictate a different
result.28
432
Statutory provisions. The governing statute of limitations may

itself determine what must be discovered.29 For instance, a
Massachusetts environmental statute starts the limitations period
running when the plaintiff discovers or should have discovered
that the defendant “is a person liable”—seemingly a rule that does
not start the clock on discovery of damage alone.30 Mississippi has
a statute of limitations specifically for actions involving “latent
injury or disease” that begins the clock when “the plaintiff has
discovered, or by reasonable diligence, should have discovered, the
injury.”31
Issues of fact. When reasonable people may differ as to whether
or when the plaintiff actually discovered relevant facts or should
have discovered them, the question may be left to the jury to
determine.32 In that kind of case, the statute of limitations defense
is not a threshold defense at all, but instead is tried along with the
merits of the case. There are, however, a number of cases in which
the undisputed facts allow the court to say as a matter of law that
the plaintiff actually discovered the relevant facts or that
reasonable people could only conclude that she should have done
so.33
An objective test. The “should have discovered” portion of the
rule is important. The test seems to be objective, that is, what a
reasonable person in the plaintiff’s position would have
discovered.34 That is, if known facts would lead a reasonable
person to investigate, the statute will begin to run when such an
investigation would have led to discovery of injury and its cause,
unless the plaintiff is for some reason relieved of the duty to
investigate.35
Statutes of ultimate repose. Statutes of ultimate repose provide
a counter-rule to the accrual-discovery rule by adding an
alternative prescriptive period which begins running at the time of
the defendant’s act rather than at the time harm was inflicted or
discovered. For example, the traditional accrual statute might
provide that suits must be brought within three years from the
time harm occurred or should have been discovered. The repose
statute might add that in no event can suits be commenced more
than ten years after the defendant’s negligent act. In the case of
injury by a manufactured product, the repose statute might
provide that suit must be brought no more than ten years after the
product was sold by the defendant.36 In such a case, the
433
plaintiff gets the benefit of the accrual and discovery rules, but
only during the first ten years after the defendant sold the product.
Affected groups. These statutes, usually considered to be a part
of the “tort reform” legislation of the 1970s and 1980s,37 were
constructed for the protection of particular groups that have
lobbied for them,38 notably products manufacturers, architects and
builders, health care professionals, and governmental entities.39
Until the middle of the twentieth century or even later, all these
groups enjoyed the protection of special substantive rules or
practices, such as the privity rule that protected manufacturers
and builders. So to some extent, the statutes of repose substitute
some new special protections that courts had removed.
Trigger dates. In the case of architects, engineers, and builders
on real property, the trigger date for starting the repose period is
usually the date on which the improvements on real property were
“completed.”40 Health care providers’ repose statutes begin to run
with the doctor’s last act or completion of the treatment, even if
harm does not occur or become apparent until later.41 Government
entities often benefit from special notice-of-claim statutes requiring
the plaintiff to assert a claim administratively or give notice of the
claim within a relatively short time of its accrual.42
Construction of statutes. Statutes of repose require judicial
construction of their operative terms, just as any other statutes do.
For example, statutes of repose that trigger accrual in property-
improvement cases at the date of substantial completion of an
improvement have spawned litigation over what counts as
substantial completion and what counts as an improvement.43 The
medical malpractice statutes likewise require construction to
determine whether the claim is a malpractice claim or not. For
instance,
434
some courts confer the protections of the malpractice repose

statutes upon suppliers of allegedly defective blood products,44
while other courts do not.45
Statute of repose effects. When a statute of repose governs the
case, the plaintiff might be barred before she discovers her injury.
Beyond that, the plaintiff might be barred before any harm at all
has occurred.46 For instance, if the statue of repose uses a twelve-
year period of time and the plaintiff suffers injury from a product
that was sold in defective condition thirteen years earlier, the
statute of repose would have barred her claim a year before she
was injured at all. This was never possible under the traditional
statute of limitations.
Extreme cases. A particularly stringent form of “repose” bars a
young minor’s claim before majority and possibly before the claim
accrues.47 Other extraordinary effects are using the repose statute
to bar a medical malpractice claim even if the claim was
fraudulently concealed by the surgeon-defendant.48 And protecting
a defendant products manufacturer whose failure to correct a
defect might seem to be a continuing tort.49
Constitutional challenges. Some decided cases have upheld the
constitutionality of statutes of repose against attacks by adult
plaintiffs based on the claim that the statutes violate due process,
equal protection, or state constitutional guarantees.50 A different
and substantial group of jurists have roundly condemned the
statutes for barring the claim before it accrues.51 A number of
courts have held some version of the statutes to
435
be unconstitutional, frequently under state constitutional

provisions that require open courts or that guarantee a remedy.52
Professor McGovern found no less than 17 different types of state
constitutional provisions involved in the constitutional
arguments.53 Some of the major arguments included these
elements: (1) Victims of the statute’s preferred defendants are
treated differently from victims of other defendants. (2) The repose
statute denies due process of law by a rule that potentially bars a
claim before it arises. (3) The statutes are designed to provide a
benefit to one group at the expense of another. They benefit the
preferred defendants by reducing their exposure to liability and
thus indirectly reducing their insurance costs. Similarly they may
benefit the public by reducing costs of services or goods from the
preferred defendants. Yet these benefits are not paid for by those
who receive them, but by their victims. (4) The statutes deny a
remedy to one who has suffered a wrong or close the doors of courts
in violation of a state constitutional provision.
Minors. When the statutes seek to abrogate the rights of minors
for the benefit of the preferred defendants, courts have frequently
found the statutes to be unconstitutional on the ground that they
denied equal protection or analogous provisions of state
constitutions.54
Defendant’s continuing acts. When the defendant’s act rather
than the plaintiff’s discovery starts the statute running, the
defendant’s continuing intentional harms55 or continuing
negligence presents a difficult problem. His continuing failure to
act can be even more puzzling. For example, suppose that the
defendant, by polluting ground water or air, subjects the plaintiff
to toxic exposures every day over a long period of time. His original
act of dumping toxic materials may have been completed long ago,
but in a sense he continues to be at fault because he could clean up
the pollution at any time, as recently as yesterday.
436
Continuing relationship. A different example involves a

relationship between plaintiff and defendant, with the added
possibility here that the statute should not begin to run before the
relationship is terminated, at least as it relates to the particular
condition or problem at hand.56 The case of the physician who
negligently fails to diagnose or treat the patient is in this category,
as are legal malpractice cases57 and perhaps any others in which
the defendant is a professional in whom the plaintiff has placed her
trust.58 As long as the patient remains in his care, she could
reasonably expect a correction of the diagnosis or treatment, so
again, the defendant in a sense continues to be negligent. In such
cases it is sometimes possible to say that the statute should not
begin to run until the negligent conduct has ceased. Fairness
dictates that the statute should be tolled until the relationship
with respect to the particular ailment or problem is terminated,
but it does not suggest that termination itself should start the
statute running when the plaintiff does not and could not discover
the injury until some time after termination.
Major variables. At least two variables seem important. First,
the continuing negligence might produce either a series of
separately identifiable harms or it might produce only a single
indivisible injury. Second, defendants may owe a duty to take
affirmative steps to minimize harm to the plaintiff or they may not.
When the defendant owes a duty to the plaintiff to act
affirmatively and fails to do so, and when that failure produces a
single harm, or a series of harms that cannot be segregated one
from another, the defendant’s negligence is continuing and the
statute does not begin to run until some definitive event occurs.59
What counts as continuing medical treatment or continuing
medical negligence is a particularly important issue in the medical
liability context.60
§ 18.6 Tolling, Grace Periods, and Postponed
Accrual
Grounds for tolling or time-out. In the case of a true statute of
limitations, the statute is tolled or under certain conditions stated
in the statute itself or judicially imposed by courts. Typically the
statute is tolled because of some impediment to the plaintiff’s
pursuit of her claim—she is a minor;61 she is mentally disabled;62
she is in
437
prison63 or in the armed forces;64 some other suit or claim is
pending on the same subject matter;65 or she was compelled to use
part of the period in an administrative proceeding as a prerequisite
to suit.66
Postponed accrual. Another form of the general idea is that
courts might postpone accrual of the claim or the start of the
prescriptive period. For example, a number of courts say they
postpone accrual of the claim by a client against a lawyer until the
termination of the lawyer’s representation of the client on the
matter at issue.67
Contemporary statutory schemes. Legislatures have now written
complex tolling statutes in line with the statutes of repose. Many
limitations are severe and include one or more of these provisions:
(1) Tolling for some disabilities may be eliminated
altogether. For example, Michigan provides that for medical
malpractice injuries to the reproductive system of a child
under thirteen years of age, suit must be brought before the
child’s fifteenth birthday.68 But in some states, the
traditional tolling for minority is a protected constitutional
right, so that a minor’s claim accrues only when she reaches
majority.69
(2) Instead of truly tolling the statute of limitations,
legislatures may now afford the plaintiff only a short grace
period for suit after her disability has terminated. Instead of
having two or three years in which to bring suit as provided
under a basic limitation period, the minor plaintiff may be
allowed only six months or a year to sue after reaching
majority.70
(3) Legislatures have now sometimes provided that
there is an outerlimit to tolling just as there is an outer limit
to the discovery rule.71 That means that plaintiffs who suffer
injury as very young minors might be barred by the
outerlimit or repose provision long before they reach
maturity.72
438
(4) Legislatures have sometimes set up tolling-repose

rules that vary, depending upon the point in the tolling
period when injury is inflicted or discovered. For instance,
Michigan’s provision for reproductive injury to children by
medical malpractice provides that for younger minors, suit
must be brought no later than before the fifteenth birthday,
while for older minors suffering the same injury, the general
malpractice statute applies.73
Tolling rules have thus become quite complex. Within whatever
constitutional constraints courts are willing to impose, legislatures
are free to limit tolling as they wish, so statutes of individual
states must be consulted.
Judicial or “equitable” tolling. Courts can impose tolling rules of
their own if they are not in conflict with the statutory rules.74
Where the statute itself specifies exclusive grounds for tolling,
however, courts must apply it absent some constitutional
infirmity.75 Due process or equal protection principles may indeed
require the court to impose a tolling rule when the statute fails to
provide one.76 In particular cases, courts may also allow the
plaintiff to pursue an untimely claim based on misrepresentations
by the defendant.77 In such cases courts may say that the
defendant is estopped to plead the statute of limitations defense.
Estoppel applies only if the plaintiff delayed filing suit in reliance
upon the defendant’s acts or representations.78 Even without an
estoppel, however, courts may decide that, as a matter of equity,
the statute should be tolled because of the defendant’s unfair
conduct that prejudiced the plaintiff’s timely suit,79 or for other
equitable reasons.80
Fraudulent concealment. The defendant’s fraudulent
concealment of facts that would reveal plaintiff’s injury or her
rights can provide grounds for equitable tolling of the statute81 or
can be viewed as merely an appealing instance for treating the
claim as accruing upon discovery.82 Either way, if established, the
concealment will extend the plaintiff’s time for bringing suit.83 If
fraudulent concealment is viewed as an independent ground for
tolling the statute, some courts say the plaintiff must ordinarily
prove
439
affirmative acts other than the original negligence itself.84

Many courts appear to require that the act of concealment be
“active,” such as by making an actual misrepresentation of fact as
opposed to simply remaining silent.85 However, if the defendant is
regarded as a fiduciary, as might be the case if the defendant is the
plaintiff’s physician, a knowing nondisclosure might count as
concealment that postpones the statute of limitations.86
Childhood sexual abuse: statutes. A number of claims raise
limitations questions concerning childhood sexual abuse. Suit has
been delayed so long in these cases that the tolling provisions for
minors are often of no aid to the plaintiff. Consequently, nothing
else appearing, such suits are dismissed on orthodox grounds.87
However, when the plaintiff has repressed memories of abuse,
some courts have held that the discovery rule could be applied,88
provided the proven facts warranted it.89 A number of states have
now enacted statutes addressed to delayed claims of childhood
sexual abuse, permitting the victim to sue within a specified time
after “discovery” of the abuse or the injury or emotional condition
resulting from it.90
Present injuries that also threaten future harm. When the
defendant negligently causes small harm to the plaintiff—say
through exposure to a toxin or failure to make a timely diagnosis
that results in immediate harm—the statute of limitations is a
potential problem. The plaintiff must sue within the statutory
period for the small harm done and also (under rules against
splitting a cause of action) for all future harm.91 The trouble is that
the plaintiff may be unable to show a likelihood of future damages.
If she sues at
440
all, res judicata rules traditionally prevented a later suit

brought after injury actually resulted. If she did not sue, the
statute of limitations would eventually run because once she
suffered some degree of harm, her cause of action accrued.
An example. In Hagerty v. L & L Marine Services, Inc.,92 the
plaintiff was thoroughly drenched with a known carcinogen,
dripolene. He knew that the substance was carcinogenic and he
showered off, but he had some immediate symptoms including
cramping, dizziness, and stinging in his extremities. His claim for
tort was complete because he suffered damages. But, although
cancer was a distinct possibility in his future, he did not have
cancer at that time. He could not postpone suit to await events,
since his claim had accrued.
Possible solutions. In situations like this, several possible
options are available, perhaps none very satisfactory. One might be
to permit the plaintiff to sue within the time permitted by the
statute of limitations and to retain jurisdiction over the case for a
long period, with or without medical monitoring damages.93 This
solution runs counter to established habits and might defeat the
purpose of the statute of limitations.
A second option is to allow the plaintiff damages for his fear of
future cancer, but nothing for the cancer itself, should it occur,
because only one claim arises from a single set of facts.94
A third option is to allow the plaintiff to recover for the
increased risk of harm, or put the other way around, for the value
of his lost chance of a healthy life. If he had a 40% chance of
getting cancer, this approach might allow him to recover 40% of the
damages that would be appropriate if he actually suffered cancer.
Although some courts have approved lost chance recoveries in
certain cases,95 in most of the lost chance cases, no future event
can make causation or loss clear.96 A little authority supports
recovery for increased risk of future but improbable harm.97
The solution in Hagerty. To the Hagerty court it seemed wrong
to bar the plaintiff from recovery for a devastating disease caused
by the defendant merely because he has suffered some minor harm
much earlier. It also seemed wrong to allow a recovery for a cancer
he might never have.98 So the court concluded that Hagerty could
recover now for injuries suffered so far and for his emotional harm
based on fear of the cancer but that if cancer occurred later, he
should be permitted to bring a separate suit for that.99
441
Two distinct injuries. In the toxic torts setting, many courts

have endorsed Hagerty with enthusiasm.100 A much-cited Florida
decision took a similar view, saying that if the plaintiff’s exposure
to asbestos had not yet caused cancer, the plaintiff would be
permitted to sue later when and if cancer occurred.101 The idea is
that the plaintiff suffers two distinct injuries from the defendant’s
wrongdoing, not merely one injury with latent or late-developing
harm.102 In such a case, the claim for the second injury will not be
barred either by a judgment in the first suit or by the plaintiff’s
failure to sue on the first injury within the limitation period.103
This follows the approach generally taken in release cases. In those
cases the courts hold that a broadly worded release bars claims for
unknown damages resulting from a known injury but not claims
for an unknown injury that neither the plaintiff nor the defendant
believed was involved.104
B. FEDERAL PREEMPTION
The defense. Federal statutes are sometimes construed to
preempt or displace state law, including state tort law. For
instance, federal statutes can specify the warnings to be placed
upon poisons or dangerous substances like tobacco products. At the
same time, the federal statute may preempt tort law so that if the
defendant who sells poisons prints the warning prescribed by the
federal statute, state courts, even though they believe the warning
is dangerously inadequate, cannot impose tort liability.105 When
preemption
442
occurs, the defendant’s compliance with a preemptive federal

statute leaves the plaintiff nowhere to turn.106 The effect is that
compliance with a federal preemptive statute is a complete
defense.107
Forms of preemption. Federal preemption of state law springs
from the Supremacy Clause of the United States Constitution,
which makes federal law “the supreme law of the land … any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”108 Federal preemption may be either “express”
or “implied.” The express form occurs when Congress explicitly, in
the text of a law, displaces state law (usually in a preemption
clause).109 The implied form turns on a court’s deducing of
Congressional intent from a statute’s broader purpose. In each
case, the ultimate touchstone of a preemption analysis is deducing
Congressional intent.110
Implied preemption. Implied preemption itself takes two forms:
(1) field preemption, in which federal regulation of a particular
field is so “pervasive as to make reasonable the inference that
Congress left no room for the States to supplement it,”111 or where
the “federal interest” in the field is “dominant”;112 and (2) conflict
preemption, where federal and state law either directly or
indirectly conflict.113 No matter which type of preemption is found,
when a federal law is held to preempt state law, the effect is to bar
completely the state-law claim.
Illustrations. As noted above, federal preemption occurs in a
number of tort-law settings. For example, federal regulations
govern the speed of railroad trains under some circumstances.
These regulations have been construed to preempt state law. So
the plaintiff injured by a fast-moving train is defeated when the
railroad can show that the speed of the train complied with the
limits set by the federal government, regardless of whether the
speed was unreasonable in the given locality.114 Similarly, a
plaintiff hit by a train at a railroad crossing who claims that the
railroad was negligent for failing to install adequate warning signs
at a railroad crossing will lose completely on preemption grounds if
the court finds that federal regulations specified the kinds of
warnings that
443
should be installed, at least where federal funds were used as

well, and the defendant did install such warnings.115 Preemption
has been a major issue in the field of products liability, and gets
longer and separate treatment in a later chapter.116
________________________________
1 See N.D. R. Civ. P. 3 (at service of process); Cal. Civ. Proc. Code §
350 (at filing of complaint). The federal approach is under Rules 3 and 4 of
the Federal Rules of Civil Procedure.
2 Overton v. Grillo, 896 N.E.2d 499 (Ind. 2008); Public Serv. Co. of
Okla. v. Allen, 876 P.2d 680 (Okla. 1994). Because the defendant must
plead and prove the defense, it cannot be raised by motion to dismiss
unless the time bar appears on the face of the complaint or prior pleading
by which the plaintiff is bound. Pontier v. Wolfson, 637 So.2d 39 (Fla. Dist.
Ct. App. 1994).
3 E.g., Reddell v. Johnson, 942 P.2d 200 (Okla. 1997); Feldman v.
Gogos, 628 A.2d 103 (D.C. 1993). See also Roe v. Gelineau, 794 A.2d 476
(R.I. 2002) (plaintiff’s failure to argue at trial level that statute of
limitation was tolled during his minority was a waiver of the issue);
Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727 (Tenn.
2013).
4 An excellent statement of the reasons for statutes of limitations is
found in Institute of Law Research and Reform, Limitations (Report
Discussion No. 4, Edmonton, 1986).
5 E.g., Davis v. Provo City Corp., 193 P.3d 86 (Utah 2008), quoting
Lee v. Gaufin, 867 P.2d 572 (Utah 1993).
6 See In re Joseph B., 258 Ill.App.3d 954, 630 N.E.2d 1180 (1994).
7 Laches, the old defense originating in the once-separate equity
courts and still applied mainly in cases where equitable relief is sought,
was not a bright-line approach to the bar. Laches allowed judges to decide
in each case whether the plaintiff had unreasonably delayed in bringing
suit and whether the defendant was prejudiced by the delay. See 1 Dan B.
Dobbs, Law of Remedies § 2.4(4) (2d ed. 1993). The ordinary statute of
limitations approach is not comparable. However, courts occasionally do
suggest that the trial court has a range of discretion in determining when
the claim accrues in doubtful cases. See Lindsay Mfg. Co. v. Universal
Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994).
8 E.g., State v. Johnson, 19 Kan.App.2d 315, 868 P.2d 555 (1994)
(one day late); see also, e.g., Williams v. Medical Coll. of Pa., 381 Pa.Super.
418, 554 A.2d 72 (1989) (claim barred where limitations period ended on a
Friday and suit was not filed until the following Tuesday).
9 John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750, 169
L.Ed.2d 591 (2008).
10 Restatement Second of Torts § 899 cmt. c (1979); Stuard v.
Jorgenson, 150 Idaho 701, 249 P.3d 1156 (2011) (statute of limitations
began to run on the date that the surgeon performed surgery and caused
“some damage” that was objectively ascertainable on that date, even
though patient had no symptoms or knowledge of the doctor’s negligence
until over two years later). See also Crosslin v. Health Care Auth. of City
of Huntsville, 5 So.3d 1193 (Ala. 2008) (under statute that starts the clock
on a statute of repose in medical malpractice cases at the time the act
complained of causes “legal injury,” a failure to diagnose a tumor was not
the legal injury where the tumor later caused him to lose vision in both
eyes).
11 Herron v. Anigbo, 897 N.E.2d 444 (Ind. 2008) (statutory
limitations period for medical malpractice cases, which fixed accrual at the
date of the act of malpractice, is unconstitutional if applied to a plaintiff
who “despite exercise of reasonable diligence does not learn of the injury or
malpractice before the period expires”).
12 E.g., Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957).
13 E.g., 42 U.S.C.A. § 9658 (certain toxic torts cases); Ill. Comp. Stat.
Ann. § 13–212 (a).
14 United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d
259 (1979) (Federal Tort Claims Act); Urie v. Thompson, 337 U.S. 163, 69
S.Ct. 1018, 93 L.Ed. 1282, 11 A.L.R.2d 252 (1949); Genereux v. Am.
Beryllia Corp., 577 F.3d 350 (1st Cir. 2009) (Mass. law); Gerdau
Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503 (Tenn. 2012) (discovery rule
applies to workers’ compensation claim; claim does not accrue “until a
plaintiff discovers or, in the exercise of reasonable diligence, should have
discovered that he has a claim”).
15 A little authority holds this parsimonious use of the discovery rule
to be unconstitutional. See Austin v. Litvak, 682 P.2d 41 (Colo. 1984);
Frohs v. Greene, 253 Or. 1, 452 P.2d 564 (1969). Where the statutes are
constitutional, litigation erupts over what counts as a foreign body. E.g.,
Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001) (breast implant not a
foreign object). See Sara L. Johnson, Annotation, Medical malpractice:
applicability of “foreign object” exception in medical malpractice statutes
of limitations, 50 A.L.R.4th 250 (1987).
16 E.g., Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 27
Cal.Rptr.3d 661, 110 P.3d 914 (2005); Barrett v. Montesano, 269 Conn.
787, 849 A.2d 839 (2004).
17 Barnes v. Koppers, 534 F.3d 357 (5th Cir. 2008); Murtha v.
Cahalan, 745 N.W.2d 711 (Iowa 2008); Aebischer v. Stryker Corp., 535
F.3d 732 (7th Cir. 2008). Some courts have also said that discovery of
temporary injury is not enough to start the statute if in fact the injury is
permanent. Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978).
18 See Rathje v. Mercy Hosp., 745 N.W.2d 443 (Iowa 2008) (citing
cases from many jurisdictions, stressing that knowledge or imputed
knowledge of “both the injury and its cause in fact” are necessary “to put a
reasonably diligent plaintiff on notice to investigate” who actually caused
the harm); Harrinton v. Costello, 7 N.E.3d 449 (Mass. 2014).
19 E.g., T.R. v. Boy Scouts of Am., 344 Or. 282, 181 P.3d 758 (2008);
Rathje v. Mercy Hosp., 745 N.W.2d 443 (Iowa 2008); Colosimo v. Roman
Catholic Bishop of Salt Lake City, 156 P.3d 806 (Utah 2007); Grunwald v.
Bronkesh, 131 N.J. 483, 621 A.2d 459 (1993); Schiele v. Hobart Corp., 284
Or. 483, 587 P.2d 1010 (1978).
20 McRae v. Group Health Plan, Inc., 753 N.W.2d 711 (Minn. 2008).
See also Norgard v. Brushwellman, Inc., 95 Ohio St.3d 165, 766 N.E.2d
977 (2002) (“when the employee discovers, or by the exercise of reasonable
diligence should have discovered, the workplace injury and the wrongful
conduct of the employer”); Anthony v. Abbott Labs., 490 A.2d 43 (R.I. 1985)
(prescription drug products liability action); Caravaggio v. D’Agostini, 166
N.J. 237, 765 A.2d 182 (2001) (medical malpractice claim; plaintiff knew of
her injury and possible fault of medical device manufacturer, but had no
knowledge that her surgeon might have been negligent).
21 See Poole v. Coakley & Williams Constr., Inc., 423 Md. 91, 31 A.3d
212 (2011) (statute of limitations accrued on the date that plaintiff fell on
black ice, which gave him sufficient notice of the “nature and cause of his
injury”; he was thus under a duty “to acquire the identities of all potential
defendants before the running of the limitations period”).
22 See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62
L.Ed.2d 259 (1979); Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 751 P.2d 923,
245 Cal.Rptr. 658 (1988).
23 E.g., Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36 (Fla.
2009).
24 In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 758
F.3d 202 (2d Cir. 2014) (under New York law, only the discovery of
manifestations or symptoms of the latent disease is required for accrual of
a claim based on exposure to toxins); Moll v. Abbott Labs., 444 Mich. 1,
506 N.W.2d 816 (1993); Highland Indus. Park, Inc. v. BEI Defense Sys.
Co., 357 F.3d 794 (8th Cir. 2004) (“[W]e know of no state whatever in
which an injured party must know the full extent of damages that it may
recover before the statute of limitations begins to run on its claim.”).
25 See Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 399
N.W.2d 1 (1987); Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623,
151 P.3d 1151, 54 Cal.Rptr.3d 735 (2007) (cause of action based on
personal injury accrued when plaintiff discovered her tobacco-related
illness, not earlier when she discovered her economic injury).
26 Winbun v. Moore, 143 Wash.2d 206, 18 P.3d 576 (2001); Harris v.
Jones, 209 W.Va. 557, 550 S.E.2d 93 (2001) (quoting earlier authority,
when the plaintiff knows or should know injury, wrongdoer’s identity, and
causal relation).
27 See, e.g., Rathje v. Mercy Hosp., 745 N.W.2d 443 (Iowa 2008)
(medical malpractice statute begins to run when the patient knew or
should have known of the injury, even though the patient did not know
that the physician had negligently caused the injury); Lincoln Elec. Co. v.
McLemore, 54 So. 3d 833 (Miss. 2010) (“a plaintiff’s cause of action accrues
at the point at which he discovered, or by reasonable diligence should have
discovered, the injury” and “knowledge of the cause of an injury is
irrelevant to the analysis,” relying on Angle v. Koppers, Inc., 42 So.3d 1, 70
Env’t. Rep. Cas. (BNA) 1910 (Miss. 2010)).
28 Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 751 P.2d 923, 245
Cal.Rptr. 658 (1988) (general rule is that “ignorance of the identity of the
defendant does not affect the statute of limitations”); Fuller v. Tucker, 84
Cal.App.4th 1163, 101 Cal.Rptr.2d 776 (2000) (noting that the statute of
limitations in such a situation can be effectively met by filing a Doe
complaint and amending to include the named defendant when he is
identified); Rawlinson v. Cheyenne Bd. of Pub. Utils., 17 P.3d 13 (Wyo.
2001); see also Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320,
534 S.E.2d 672 (2000).
29 Libby v. Eighth Judicial Dist. Court, 325 P.3d 1276 (Nev. 2014)
(applying medical malpractice statute).
30 See Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 763
N.E.2d 1053 (2002).
31 Miss. Code Ann. § 15–1–49(2) (Rev. 2003); Phillips 66 Co. v.
Lofton, 94 So. 3d 1051 (Miss. 2012).
32 E.g., Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354 (2009); Herron
v. Anigbo, 897 N.E.2d 444 (Ind. 2008); Huss v. Gayden, 991 So.2d 162
(Miss. 2008); Mohr v. Commonwealth, 421 Mass. 147, 653 N.E.2d 1104
(1995).
33 E.g., Alaface v. National Inv. Co., 181 Ariz. 586, 892 P.2d 1375
(Ct. App. 1994); Ridenour v. Boehringer Ingelheim Pharms., Inc., 679 F.3d
1062, Prod. Liab. Rep. (CCH) P 18854 (8th Cir. 2012) (holding that as a
matter of law plantiff’s cause of action accrued when he saw a television
advertisement that suggested a link between the defendant’s drug and the
symptoms plaintiff was exhibiting).
34 Hanson v. Singsen, 898 A.2d 1244 (R.I. 2006) (medical malpractice
case); see also BASF Corp. v. Symington, 512 N.W.2d 692 (N.D. 1994) (test
is objective even if the plaintiff is mentally disabled).
35 Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 763 N.E.2d
1053 (2002) (environmental damage statute put burden wholly upon
defendant to notify neighbors of contamination, so neighbor, though put on
suspicion, had no duty to investigate possible contamination of its land).
36 E.g., Conn. Gen. Stat. § 52–577a (10 years from date defendant
parted with possession of the product); 735 Ill. Comp. Stat. 5/13–213(b) (12
years from first sale or 10 years from sale to first purchaser, whichever is
shorter, in strict product liability actions), held unconstitutional as not
severable in Best v. Taylor Mach. Works, 179 Ill.2d 367, 689 N.E.2d 1057
(1997).
37 Some rules of ultimate repose antedated the tort reform era. See
Collins v. Scenic Homes, Inc., 38 So.3d 28 (Ala. 2009) (reviewing history of
Alabama common-law rule establishing a 20-year “rule of repose” for all
claims, dating to 1888); Owens-Illinois, Inc. v. Wells, 50 So.3d 413 (Ala.
2010) (holding that a claim does not accrue under the 20-year statute of
repose until the plaintiff suffers some “manifest present injury,” so that
plaintiffs were not barred by the statute when they sued more than 20
years after exposure to asbestos manufactured by defendant).
38 See Irish v. Gimbel, 691 A.2d 664 (Me. 1997) (plaintiff’s counsel
could properly cross-examine defendant’s expert medical witness about his
lobbying efforts for tort reform); In re Dow Corning Corp., 142 F.3d 433
(6th Cir. 1998) (unpublished) (lawyers for plaintiffs pursuing defendant
who was in bankruptcy were not authorized to lobby to counter
defendant’s lobbying efforts).
39 E.g., Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81
(1994) (statute protecting improvers of real property); Whitlow v. Board of
Educ. of Kanawha County, 190 W.Va. 223, 438 S.E.2d 15 (1993) (but
holding the preference for governmental defendants to be unconstitutional
as applied to claims of minors).
40 E.g., Cal. Civ. Proc. Code § 337.15 (10 years after the substantial
completion of the development or improvement); Vernon’s Ann. Mo. Stat. §
516.097 (10 years after improvement is completed); 42 Pa. Cons. Stat.
Ann. § 5536 (12 years after completion of construction or improvement);
Horning v. Penrose Plumbing & Heating Inc., 336 P.3d 151 (Wyo. 2014); cf.
Ala. Code § 6–5–221 (13 years after action accrued or would have accrued).
41 See Fla. Stat. Ann. § 95.11 (4); Mich. Comp. L. Ann. § 600.5838a;
Vernon’s Ann. Mo. Stat. § 516.105.
42 E.g., Rev. Code Wash. § 4.92.110.
43 Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994)
(with chattels added, permanent addition is the test, taking into account
the law of fixtures plus objective intent of parties controls; easily
removable diving blocks were not fixtures, hence not covered by the
statute). See William D. Bremer, Annotation, What Constitutes
“Improvement to Real Property” for Purposes of Statute of Repose or
Statute of Limitations, 122 A.L.R.5th 1 (2004).
44 Smith v. Paslode Corp., 7 F.3d 116 (8th Cir. 1993) (Red Cross was
health care provider for statute of limitations purposes); Bradway v.
American Nat’l Red Cross, 263 Ga. 19, 426 S.E.2d 849 (1993).
45 Silva v. Southwest Fla. Blood Bank, Inc., 601 So.2d 1184 (Fla.
1992) (supplier of blood contaminated with HIV virus was not engaged in
diagnosis, treatment, or care and hence did not get the protection of the
medical statute); Swanigan v. American Nat’l Red Cross, 313 S.C. 416, 438
S.E.2d 251 (1993); Doe v. American Nat’l Red Cross, 176 Wis.2d 610, 500
N.W.2d 264 (1993).
46 See Blazevska v. Raytheon Aircraft Co., 522 F.3d 948 (9th Cir.
2008) (18-year statute of repose of the General Aviation Revitalization Act
of 1994 bars products liability claims by survivors of passengers killed in
airplane crash); Land v. Yamaha Motor Corp., 272 F.3d 514 (7th Cir. 2001)
(boat known to be dangerous by its manufacturer exploded more than ten
years after delivery to consumer, ten year repose statute barred claim; the
claim was not resuscitated by a post-sale failure to warn).
47 E.g., Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691 (2007)
(applying statute to bar child’s claim for negligent misdiagnosis of AIDS).
Some courts have struck down such statutes on state constitutional
grounds. See, e.g., Sands ex rel. Sands v. Green, 156 P.3d 1130 (Alaska
2007) (statute that tolled statute of limitations for personal injury claims
by minors injured before their eighth birthdays only until they reached the
age of eight violated due process rights); Lee v. Gaufin, 867 P.2d 572 (Utah
1993) (statute that treated minor medical malpractice victims differently
violated state constitution).
48 Horn v. Citizens Hosp., 425 So.2d 1065 (Ala. 1982).
49 See Spilker v. City of Lincoln, 238 Neb. 188, 469 N.W.2d 546
(1991) (Westinghouse sold electrical switchgear with an instruction book
that directed workers making a repair to use a specified receptacle, an
action that in fact would subject the victim to high voltage burns and
ultimate death; the product and deadly instruction had been delivered 22
years earlier, so the statute barred the claim). Whether the manufacturer’s
failure to correct a deadly instruction is a continuing tort would depend
upon whether the manufacturer was under a duty to give a post-sale
warning. See Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 861
P.2d 1299 (1993).
50 E.g., Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo. 1982)
(equal protection, due process, and state constitutional attacks); Zapata v.
Burns, 207 Conn. 496, 542 A.2d 700 (1988) (equal protection); Harlfinger
v. Martin, 435 Mass. 38, 754 N.E.2d 63 (2001) (though it cuts off rights of
minors, statute does not violate either due process or equal protection
rights; rational basis test); 1518–1525 Lakeview Blvd. Condo. Ass’n v.
Apartment Sales Corp., 144 Wash.2d 570, 29 P.3d 1249 (2001) (violates
neither equal protection nor state access to courts provisions); Josephine
Herring Hicks, The Constitutionality of Statutes of Repose: Federalism
Reigns, 38 Vand. L. Rev. 627 (1985).
51 “Except in topsy-turvy land you can’t die before you are conceived,
or be divorced before ever you marry, or harvest a crop never planted, or
burn down a house never built, or miss a train running on a non-existent
railroad. For substantially similar reasons, it has always heretofore been
accepted, as a sort of legal ‘axiom,’ that a statute of limitations does not
begin to run against a cause of action before that cause of action exists,
i.e., before a judicial remedy is available to the plaintiff.” Dincher v.
Marlin Firearms Co., 198 F.2d 821, 823 (2d Cir. 1952) (Frank, J.,
dissenting). Another locution of some popularity is that the legislatures
that pass such statutes are attempting “to declare the bread stale before it
is baked.” See Moll v. Abbott Labs., 444 Mich. 1, 506 N.W.2d 816 (1993),
quoting Fleishman v. Eli Lilly & Co., 96 A.D.2d 825, 826, 465 N.Y.S.2d 735
(1983) (Gibbons, J., concurring in part and dissenting in part).
52 E.g., Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 861 P.2d
625 (1993); Perkins v. Northeastern Log Homes, 808 S.W.2d 809 (Ky.
1991); Horton v. Goldminer’s Daughter, 785 P.2d 1087 (Utah 1989); cf.
DeYoung v. Providence Med. Ctr., 136 Wash.2d 136, 960 P.2d 919 (1998)
(statute provided privileges not equally available to all and was not
rationally related to purpose); Turner Constr. Co. v. Scales, 752 P.2d 467
(Alaska 1988) (equal protection). The legislature’s reiteration of a repose
statute already declared unconstitutional was firmly rejected in State ex
rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715
N.E.2d 1062 (1999).
53 See Francis E. McGovern, The Variety, Policy and
Constitutionality of Product Liability Statutes of Repose, 30 Am. U. L.
Rev. 579, 600 ff. (1981).
54 See Green v. Lewis Truck Lines, 433 S.E.2d 844 (S.C. 1993); Lee v.
Gaufin, 867 P.2d 572 (Utah 1993); Whitlow v. Board of Educ. of Kanawha
County, 190 W.Va. 223, 438 S.E.2d 15 (1993); but cf., Kumar v. Hall, 262
Ga. 639, 423 S.E.2d 653 (1992) (comatose, brain damaged person had no
“standing” to assert unconstitutionality of repose statute because he was
in fact represented by a guardian).
55 See Feltmeier v. Feltmeier, 207 Ill.2d 263, 798 N.E.2d 75 (2003)
(former husband’s infliction of emotional distress by a pattern of repeated
abuse over eleven years of marriage constituted one large continuing tort,
so that the statute of limitations did not begin to run until after the last
act of abuse or last injury suffered, which occurred after dissolution of the
marriage); Pugiese v. Superior Court, 146 Cal.App.4th 1444, 53
Cal.Rptr.3d 681 (2007).
56 See Zielinski v. Kotsoris, 279 Conn. 312, 901 A.2d 1207 (2006)
(continuous treatment rule may be invoked where treatment for a
“particular injury or malady” continues); Watkins v. Fromm, 108 A.D.2d
233, 488 N.Y.S.2d 768 (1985) (continuous “treatment doctrine applies only
to treatment for the same or related illnesses or injuries” rather than to
the “mere continuity of a general physician-patient relationship”).
57 Legal malpractice cases usually say that the continuous
representation ends for statute of limitations purposes at the end of the
lawyer’s representation of the client on the particular matter that is the
subject of the malpractice claim. E.g., Shumsky v. Eisenstein, 96 N.Y.2d
164, 726 N.Y.S.2d 365, 750 N.E.2d 67 (2001).
58 See Williamson ex rel. Lipper Convertibles, L.P. v.
PriceWaterhouse Coopers LLP, 9 N.Y.3d 1, 840 N.Y.S. 730 (2007) (noting
that “continuous representation doctrine” applies to all such cases, but
declining to apply it on the facts of the particular accountant-malpractice
case before the court).
59 Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376
(2007) (applying “continuing tort” rule to a claim by an employee against
an employer for failing to provide a safe workplace over a long period of
time); John Doe 1 v. Archdiocese of Milwaukee, 303 Wis.2d 34, 734 N.W.2d
827 (2007) (holding that claims of negligent supervision of an abusive
priest accrued on the date of the last incident in a series of sexual
molestations); Page v. United States, 729 F.2d 818, 822–23 (“To us it
seems unrealistic to regard each prescription of drugs as the cause of a
separate injury, or as a separate tortious act triggering a new limitation
period.”); Meadows v. Union Carbide Corp., 710 F.Supp. 1163 (N.D. Ill.
1989).
& Supp.).
61 E.g., N.Y. C.P.L.R. § 208; Kordus v. Montes, 337 P.3d 1138 (Wyo.
2014) (unconstitutional to apply two-year statute of limitations to case of a
minor patient who lacks capacity to sue).
62 E.g., Va. Code § 8.01–229. Courts emphasize that practical ability
to manage one’s affairs precludes a finding of mental disability or
“unsound mind.” E.g., Sherrill v. Souder, 325 S.W.3d 584 (Tenn. 2010);
Ellis v. Estate of Ellis, 169 P.3d 441 (Utah 2007) (tolling for mental
incompetency is designed to “relieve from the strict time restrictions
people who are unable to protect their legal rights because of an overall
inability to function in society”).
63 Ala. Code § 6–2–8; 12 Vt. Stat. Ann. § 551 (a) (at the time the
cause of action accrues).
64 50 App. U.S.C.A. § 526.
65 Norris v. Bell Helicopter-Textron, Inc., 712 F.2d 171 (5th Cir.
1983); Stevens v. Novartis Pharms. Corp., 358 Mont. 474, 247 P.3d 244,
Prod. Liab. Rep. (CCH) P 18553 (2010), cert. denied, 131 S. Ct. 2938, 180
L. Ed. 2d 226 (2011) (statute of limitations on patient’s failure to warn
case against drug manufacturer was tolled by the filing of a separate class
action suit by others alleging the same defect).
66 New Hampshire Div. of Human Servs. v. Allard, 138 N.H. 604,
644 A.2d 70 (1994).
67 Black v. Power, 955 A.2d 712 (D.C. 2008); Shipman v. Kruck, 593
S.E.2d 319 (Va. 2004); Shumsky v. Eisenstein, 96 N.Y.2d 164, 726
N.Y.S.2d 365, 750 N.E.2d 67 (2001); Murphy v. Smith, 411 Mass. 133, 579
N.E.2d 165 (1991); Bjorgen v. Kinsey, 466 N.W.2d 553 (N.D. 1991); Neilsen
v. Beck, 157 Cal.App.4th 1041, 69 Cal.Rptr.3d 435 (2007).
68 Mich. Comp. L. Ann. § 600.5851(8).
69 Piselli v. 75th St. Med., 371 Md. 188, 808 A.2d 508 (Md. 2002).
70 See Mich. Comp. L. Ann. § 600.5851(1).
71 E.g., S.D.C.L. § 15–2–22 (limiting tolling to a maximum of five
years, or “no longer than one year after the disability ceases”).
72 Oregon’s statute of limitations for medical negligence actions
extends the usual two-year period by five years if the plaintiff is a child,
and provides that the claim accrues on the date of medical treatment.
Thus a child injured as an infant will have to sue before reaching age six,
even where the parents have no reason to suspect negligence. Christiansen
v. Providence Health Sys. of Or. Corp., 344 Or. 445, 184 P.3d 1121 (2008)
(barring a claim on this ground, and upholding the statute against
constitutional attack). In Barrio v. San Manuel Div. Hosp. For Magma
Copper Co., 143 Ariz. 101, 692 P. 2d 280 (l984), a statute barred small
children from suits for medical malpractice by the time they were ten
years old. This was held unconstitutional under a state constitutional
provision.
73 Mich. Comp. L. Ann. § 600.5851(8).
74 But see Casey v. Merck & Co., Inc., 283 Va. 411, 722 S.E.2d 842,
Prod. Liab. Rep. (CCH) P 18788 (2012) (court may not toll a statute of
limitations in the absence of a clear statutory enactment to that effect).
75 Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36 (Fla. 2009).
76 Adamsky v. Buckeye Local Sch. Dist., 73 Ohio St. 3d 360, 653
N.E.2d 212 (1995), held that a two year statute of limitations with no
tolling provision discriminated against minors and in so doing violated the
state’s equal protection provision.
77 E.g., Brown Transp. Corp. v. James, 243 Ga. 701, 257 S.E.2d 242
(1979); Hagen v. Faherty, 133 N.M. 605, 66 P.3d 974 (Ct. App. 2003).
78 E.g., DeLuna v. Burciaga, 223 Ill.2d 49, 306 Ill.Dec. 136, 857
N.E.2d 229 (2006); Stalberg v. Western Title Ins. Co., 27 Cal.App.4th 925,
32 Cal.Rptr.2d 750 (1994); Redwing v. Catholic Bishop for Diocese of
Memphis, 363 S.W.3d 436 (Tenn. 2012).
79 Thus in Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022,
90 L.Ed.2d 462 (1986), a federal limitation period was tolled because the
very policy being attacked by the class-action plaintiffs had been a secret
policy as well as an illegal one.
80 See Stalberg v. Western Title Ins. Co., 27 Cal.App.4th 925, 32
Cal.Rptr.2d 750 (1994).
81 See Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90
L.Ed.2d 462 (1986); Emberton v. GMRI, Inc., 299 S.W.3d 565 (Ky. 2009);
Florida Dep’t of Health & Rehab. Servs. v. S.A.P., 835 So.2d 1091 (Fla.
2002); Doe v. Bishop of Charleston, 754 S.E.2d 494 (S.C. 2014); Detwiler v.
Bristol-Myers Squibb Co., 884 F.Supp. 117 (S.D.N.Y. 1995).
82 Erdelyi v. Lott, 326 P.3d 165 (Wyo. 2014).
83 See Walk v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002); Woods v.
Schmitt, 439 N.W.2d 855 (Iowa 1989).
84 Langner v. Simpson, 533 N.W.2d 511 (Iowa 1995); Redwing v.
Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436 (Tenn. 2012). Cf.
Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001) (“some positive act of
fraud, something so furtively planned and secretly executed as to keep the
plaintiff’s cause of action concealed, or perpetrated in a way that it
conceals itself”).
85 See Emberton v. GMRI, Inc., 299 S.W.3d 565 (Ky. 2009); Ryan v.
Roman Catholic Bishop of Providence, 941 A.2d 174 (R.I. 2008); Florida
Dep’t of Health & Rehab. Servs. v. S.A.P., 835 So.2d 1091 (Fla. 2003).
86 Walk v. Ring, 202 Ariz. 310, 44 P.3d 990 (2002) (“fraudulent
concealment occurs with nondisclosure of the facts pertaining to
negligence”; “if Defendant thought he may have been negligent in his
treatment of Plaintiff, his fiduciary duty to disclose required him to
explain that to her”). See also Redwing v. Catholic Bishop for Diocese of
Memphis, 363 S.W.3d 436 (Tenn. 2012).
87 E.g., Colosimo v. Roman Catholic Bishop of Salt Lake City, 153
P.3d 806 (Utah 2007); Kopalchick v. Catholic Diocese of Richmond, 274 Va.
332, 645 S.E.2d 439 (2007); Doe v. Archdiocese of Cincinnati, 109 Ohio
St.3d 491, 849 N.E.2d 268 (2006); McAfee v. Cole, 637 A.2d 463 (Me. 1994);
Snyder v. Boy Scouts of Am., Inc., 205 Cal.App.3d 1318, 253 Cal.Rptr. 156
(1988) (now covered by statute).
88 Hearndon v. Graham, 767 So.2d 1179 (Fla. 2000); Logerquist v.
Danforth, 188 Ariz. 16, 932 P.2d 281 (1997); McCollum v. D’Arcy, 138 N.H.
285, 638 A.2d 797 (1994); Olsen v. Hooley, 865 P.2d 1345 (Utah 1993);
Johnson v. Johnson, 701 F.Supp. 1363 (N.D. Ill. 1988). But see Doe v.
Archdiocese of Milwaukee, 211 Wis.2d 312, 565 N.W.2d 94 (1997); Travis
v. Ziter, 681 So.2d 1348 (Ala. 1996); Lemmerman v. Fealk, 449 Mich. 56,
534 N.W.2d 695 (1995). Cf. Maness v. Gordon, 325 P.3d 522 (Alaska 2014)
(claim of repressed memory syndrome could not be used absent expert
testimony).
89 Cf. Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295 (Ky. Ct.
App. 1993) (plaintiff knew of abuse, then repressed his knowledge, then
recovered it; discovery rule did not assist him).
90 10 Del. Code § 8145; Alaska Stat. § 09.55.650; Conn. Gen. Stat.
Ann. § 52–577d (17 years from age of majority is maximum time); Iowa
Code Ann. § 614.8A; Kan. Stat. Ann. § 60–523; Mass. Gen. L. Ann. c. 260,
§ 4C; 14 Me. Rev. Stat. Ann. § 752–C; Mont. Code Ann. § 27–2–216; N.J.
Stat. Ann. § 2A:61B–1; N.M. Stat. Ann. § 37–1–30; R.I. Gen. L. Ann. § 9–
1–51; Rev. Code Wash. Ann. § 4.16.340. Distinguish statutes addressed to
sexual abuse by therapists, which may also cover some child abuse cases.
See, e.g., Wis. Stat. Ann. § 893.585.
91 See Medved v. Glenn, 125 P.3d 913 (Utah 2005) (plaintiff who
allegedly was required to undergo mastectomy and suffered other harms
due to the defendant’s negligence is permitted to claim damages for
increased risk of recurrence, emphasizing the rule against splitting a
cause of action and reversing courts below).
92 788 F.2d 315 (5th Cir.), modified on other grounds on denial of
rehearing en banc, 797 F.2d 256 (5th Cir. 1986).
93 On medical monitoring damages and funds, see § 29.13.
94 Fear of future harm is a recoverable element of damages once a
tort is established, see § 29.1.
95 See § 14.11.
96 For instance, if the defendant physician fails to correctly diagnose
cancer in January but does diagnose it in September, the delay is likely to
reduce the patient’s chances of survival, but if the patient dies, no one can
be sure whether the physician’s failure actually made a difference or not.
97 Dillon v. Evanston Hosp., 199 Ill.2d 483, 771 N.E.2d 357, 264
Ill.Dec. 653 (2002); see Joseph H. King, Jr., “Reduction of Likelihood”
Reformulation and Other Retrofitting of the Loss-of-A-Chance Doctrine, 28
U. Mem. L. Rev. 491 (1998).
98 See also Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 525 (Fla.
Dist. Ct. App. 1985).
99 “[T]he disease of cancer should be treated as a separate cause of
action for all purposes…. A prior but distinct disease, though the
tortfeasor may have paid reparations, should not affect the cause of action
and damages for the subsequent disease.” Hagerty v. L & L Marine Servs.,
Inc., 788 F.2d 315, 320 (5th Cir.), modified on other grounds on denial of
rehearing en banc, 797 F.2d 256 (5th Cir. 1986).
100 Ayers v. Jackson Twp., 106 N.J. 557, 525 A.2d 287 (1987). Even
commentators who vehemently oppose other claims based upon exposure
believe that allowing a second action is the enlightened position. See
James A. Henderson, Jr. & Aaron D. Twerski, Asbestos Litigation Gone
Mad: Exposure-Based Recovery for Increased Risk, Mental Distress, and
Medical Monitoring, 53 S.C. L. Rev. 815 (2002) (listing many cases in
support).
101 Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517 (Fla. Dist. Ct. App.
1985). The court noted that the rule against splitting a cause of action was
correlative with the rule that allowed the plaintiff to recover all (future)
damages in one suit. If the plaintiff could not recover the future harm
damages, then the rule against splitting the cause of action had no
application.
102 See, e.g., Pooshs v. Philip Morris USA, Inc., 51 Cal.4th 788, 123
Cal.Rptr.3d 578, 250 P.3d 181, Prod. Liab. Rep. (CCH) P 18626 (2011)
(earlier-discovered disease—COPD—does not trigger the statute of
limitations on a suit based on a later-discovered separate latent disease—
lung cancer-caused by the same tobacco use); Daley v. A.W. Chesterton,
Inc., 37 A.3d 1175, Prod. Liab. Rep. (CCH) P 18792 (Pa. 2012) (“separate
disease” rule allowed cancer patient to bring separate lawsuits for more
than one malignant disease that resulted from the same exposure to
asbestos; the second action—for mesothelioma—was not barred by res
judicata).
103 Carroll v. Owens-Corning Fiberglas Corp., 37 S.W.3d 699 (Ky.
2000) (action for cancer accrues on date of cancer diagnosis, not on date of
earlier diagnosis of asbestosis); Pustejovsky v. Rapid-American Corp., 35
S.W.3d 643 (Tex. 2000); Hamilton v. Asbestos Corp., 22 Cal.4th 1127, 95
Cal.Rptr.2d 701, 998 P.2d 403 (2000); Sopha v. Owens-Corning Fiberglas
Corp., 230 Wis.2d 212, 601 N.W.2d 627 (1999); Miller v. Armstrong World
Indus., Inc., 817 P.2d 111 (Colo. 1991).
105 See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct.
1732, 123 L.Ed.2d 387 (1993); Cipollone v. Liggett Group, Inc., 505 U.S.
504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). There is a continuing,
divisive, and wide-ranging jurisprudence of preemption, which sometimes
leads to the conclusion that tort law has not been displaced and that the
claim can proceed. E.g., Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187
(2009). In a single case, a federal statute may be found to preempt some of
the plaintiff’s state tort claims, but not others. See, e.g., Elam v. Kansas
City S. Ry. Co., 635 F.3d 796 (5th Cir. 2011) (Interstate Commerce
Commission Termination Act preempts plaintiffs’ negligence per se claim
based on a state statute, but not their ordinary negligence claim in which
they alleged that the railroad negligently failed to provide adequate
warning of a train’s presence at a crossing). A statute may also be found to
preempt claims by certain plaintiffs but not others. See, e.g., Vreeland v.
Ferrer, 71 So. 3d 70 (Fla. 2011), cert. denied, 132 S.Ct. 1557 (2012) (federal
aircraft owner/lessor liability statute limits liability to people who are
physically on the ground or in the water when harmed, and therefore does
not preempt a state-law tort claim by passengers or airline crew).
106 Noncompliance with a preemptive federal statute bars the state-
law claim but may leave the defendant subject to federal criminal or
administrative penalties that do not assist the injured plaintiff. In
Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 121 S.Ct. 1012,
148 L.Ed.2d 854 (2001), the plaintiffs injured by the defendant’s medical
product alleged that the defendant had secured permission to market the
product by fraud on the federal regulatory agency, the FDA. The Court
held that the tort claim was preempted because it would conflict with
administration of the law by the federal agency, noting that the FDA itself
could impose civil penalties, pursue criminal sanctions, or seize the
products.
107 For a succinct description and analysis of federal preemption, see
David G. Owen, Products Liability Law § 14.4 (2d ed. 2008).
108 U.S. Const., art. VI, cl. 2.
109 See, e.g., Northwest, Inc. v. Ginsberg, 134 S.Ct. 1422, 188 L.Ed.2d
538 (2014) (airline deregulation act); Roth v. Norfalco LLC, 651 F.3d 367
(3d Cir. 2011) (Hazardous Materials Transportation Act).
110 Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 173 L.Ed.2d 51
(2009).
111 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also
United States v. Locke, 529 U.S. 89, 120 S.Ct. 1135, 146 L.Ed. 69 (2000)
(field preemption occurs when “Congress [] left no room for state
regulation of these matters”).
112 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
113 See English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110
L.Ed.2d 65 (1990) (conflict preemption occurs when it is “impossible for a
private party to comply with both state and federal requirements); Hines
v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed.2d 581 (1941) (conflict
preemption also occurs where state law “stands as an obstacle to the
accomplishment and execution” of Congressional purposes and objectives).
114 See CSX Transp. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123
L.Ed.2d 387 (1993); cf. Norfolk S. Ry. v. Shanklin, 529 U.S. 344, 120 S.Ct.
1467, 146 L.Ed.2d 374 (2000) (crossing warnings, preemption).
115 Missouri Pac. R.R. Co. v. Limmer, 299 S.W.3d 78 (Tex. 2009), cert.
denied, 562 U.S. 829, 131 S.Ct. 75, 178 L.Ed.2d 25 (2010). See also Elam v.
Kansas City S. Ry. Co., 635 F.3d 796 (5th Cir. 2011) (Interstate Commerce
Commission Termination Act completely preempted plaintiffs’ negligence
per se claim based on a Mississippi state statute that purported to manage
a railroad’s switching operations, including its decisions as to train speed,
length and scheduling).
116 See § 33.20.
445
Part IV
EXPANDED OR LIMITED DUTIES OF

CARE IN PHYSICAL HARM CASES
447
Chapter 19
EXPANDED DUTIES OF CARE:

CARRIERS, INNKEEPERS AND
FIDUCIARIES
Analysis
§ 19.1 Duty of Common Carriers in Personal-Injury Cases
§ 19.2 Who Counts as a Common Carrier or Passenger
§ 19.3 Protecting Passengers of Common Carriers from Third Persons
and Other External Risks
§ 19.4 Duty of Innkeepers in Personal-Injury Cases
§ 19.5 Duty of Fiduciaries in Personal-Injury Cases
§ 19.6 Fiduciary Relationship Imposing an Affirmative Duty to Protect
from Others
__________
§ 19.1 Duty of Common Carriers in Personal-

Injury Cases
The general duty of highest care. Some species of strict liability
may be imposed on common carriers for the safekeeping of goods
belonging to the passengers.1 But except under the Warsaw
Convention,2 proof of carrier negligence is required when the same
passengers suffer personal injury or death.3 Under traditional
rules, however, the duty owed is expanded in the sense that it is
measured by a high standard. Passengers necessarily put their
well-being completely in the hands of the carrier, are totally
dependent upon the carrier, and will often lack access to evidence
about the carrier’s behavior.4 Largely for these reasons, most
courts say that common carriers are required to exercise an
elevated level of care, not merely reasonable care, for the safety of
fare-paying passengers.5 Thus courts usually say the common
carrier owes the utmost6 care
448
or the highest care,7 or the highest care consistent with

operation of the business,8 or some variant of these terms.9 The
different verbalizations are probably not intended to state different
standards, although they might differ in their impact on the jury.
Under the heightened duty, the carrier owes not only the highest
care in the transport itself, but also owes passengers a safe means
of boarding and exiting the conveyance.10 And in discharging the
passenger, the carrier is bound to do so at a reasonably safe
place.11 Special care may likewise be required if the carrier knows
or should know that the passenger has a disability.12
Rejecting the expanded duty. Several courts have rejected or
discarded the expanded duty in favor of a reasonable care
standard, on the theory that the duty of reasonable care, which
always considers circumstances in determining reasonableness,
can adequately accommodate all cases.13
Practical differences. It has been suggested that the expanded
duty of common carriers is not really a greater duty at all because
the duty of reasonable care would permit the jury to consider any
special dangers encountered on public conveyances and because
the jury would be unimpressed with the supposed duty of utmost
care.14 However, systematically instructing the jury on the duty to
use the highest care seems on its face likely to sway juries in closer
cases—and swaying even one juror might be enough in many
instances. In fact, judges themselves have constructed grounds for
liability derived from the higher duty of care and have affirmed or
reversed cases accordingly.15 In addition, the higher duty of care
may give rise to subsidiary doctrines favorable to some plaintiffs.16
§ 19.2 Who Counts as a Common Carrier or
Passenger
Common carriers vs. private carriers. The utmost care duty
imposed upon common carriers does not usually apply to non-
carriers such as amusement rides17 or to private
449
carriers,18 who are held only to the standard of reasonable care

unless some special reason induces courts in particular cases to
impose a different standard.19 As a result, courts ordinarily
distinguish common carriers from private or contract carriers.20
Common carriers. A common carrier is one who undertakes to,
or does, transport all persons indiscriminately,21 or at least
contracts to transport all persons within a definite class.22 Some
courts emphasize that an operator counts as a common carrier only
if he is in the business of carrying passengers, the carriage of
passengers is a primary function of that business,23 and that the
carriage is “for hire” and not gratuitous.24
Private carriers. In contrast, a private carrier, sometimes called
a contract carrier, merely transports people under specific
contracts, and reserves the right to reject any given passenger. For
example, the operator of passenger ship is a common carrier,25 but
a fishing boat captain who picks and chooses those to whom he
charters the boat is not;26 a passenger railroad is a common
carrier,27 but a construction company running a train merely to
transport its workers to the job site is not, even if it carries an
occasional
450
passenger;28 the operator of a taxicab is a common carrier,29 but

a car rental agency is not.30
Similarly, courts have said that operators of school buses are
not common carriers,31 although even if such operators are only
private carriers, they may owe special care proportioned to the
children’s “inability to foresee and avoid the perils which they may
encounter.”32 Likewise, ambulance operators have been held to be
private carriers only.33 However, the rationale for the utmost care
duty—that passengers have no ability to protect themselves when
the carrier is in complete control—may cast doubt on the
distinction between private and common carriers in the context of
carriers like school buses and ambulances.34
Modes of conveyance that count as carriers; amusement vs.
carriage. As already indicated, common carriers include those who
undertake transport for the public by bus,35 railroad,36 airplane,37
taxicab,38 passenger ship,39 and ferry40 and other similar public
transport.41 However, some courts have gone beyond these obvious
cases and have treated as common carriers those who operate
elevators,42 escalators43 chair lifts at ski resorts,44 and even
amusement park rides.45 But for other courts, transport in
connection with amusement and recreational activities may be
treated as remote from or incidental to the business of carrying
passengers, with the result that operators of air transport for
451
the purpose of recreational parachuting,46 or thrill rides on a

speed boat,47 are not carriers at all. These courts apply the duty of
ordinary care in such cases. The outcome is in line not only with
the general duty of care but also with amusement-ride cases in
particular.48
Who counts as a passenger. The carrier’s duty of utmost care is
owed only to those who count as passengers, not to strangers such
as pedestrians or drivers of other vehicles. However, a person who
has not yet purchased a ticket may be a passenger entitled to the
utmost care if he intends to take passage within a reasonable time
and is in a place such as a boarding platform that the carrier has
provided for passengers.49 At least this has been the rule with
respect to injury from the carrier’s moving vehicles.50 With respect
to premises defects not involving transport vehicles—for example,
an ordinary slip-and-fall in a waiting room or passage—many
courts treat the plaintiff as a non-passenger or say that he is
entitled only to ordinary care.51 Other courts may obtain the same
result by limiting the utmost care duty to cases in which the
passenger is in the act of boarding, riding, or alighting52 or is
otherwise injured in some way by the carrier’s vehicle or
transport.53 At the other end of the journey, one remains a
passenger until she is discharged in a place of reasonable safety.54
Finally, one using the carrier’s vehicle or machinery for some
purpose other than carriage may not be a passenger to whom the
heightened duty of care is owed.55
§ 19.3 Protecting Passengers of Common Carriers
from Third Persons and Other External Risks
Protecting passengers from third persons. Courts have generally
been reluctant to impose liability upon defendants for failing to
protect the plaintiff from attacks by others. However, a defendant
may owe a duty of care to protect the plaintiff from herself or
others in several circumstances—when the defendant’s actions
enhance the risk of
452
attacks, when the defendant undertakes protection, and when

the defendant is in a special relationship with the plaintiff or the
attacker.56 The relationship of common carrier and passenger is
one of the special relationships that generate a duty to use care in
protecting the plaintiff from herself or others.57 And, in some cases,
at least, the carrier may be required to use the utmost or highest
care in dealing with third person attacks.58 Liability, however, is
only imposed when the duty is breached by negligence of the
carrier.59
Risks after carriage is completed. The carrier is not responsible
for passengers’ injuries after they have left the conveyance60 unless
the carrier has negligently61 discharged the passengers at an
unsafe place.62
§ 19.4 Duty of Innkeepers in Personal-Injury
Cases
General rule. Innkeepers owe a strict liability duty to prevent
loss or damage to goods brought into the hotel by a guest,63 but
most cases say, with only limited qualifications, that innkeepers
owe only a duty of ordinary reasonable care for the guest’s personal
safety and not an expanded duty at all.64 A very small group of
cases hold otherwise, imposing a heightened duty of care upon
innkeepers, analogous to the special duty imposed upon carriers.65
The innkeeper cases arise in several distinct settings, including
injuries arising from conditions of the premises, acts or omissions
of the innkeeper, and from attacks by third parties.
453
Static conditions on the premises. First, with respect to

conditions on the premises, the guest is an invitee66 and is entitled
to the same duty of reasonable care as other invitees,67 including
those who are invited to the premises by the guest himself68 and
those who are there to communicate with the guest.69 And since
the care owed derives from invitee status, the innkeeper may owe
only the duty not to willfully or wantonly injure him if the guest
enters private portions of the hotel where he is not expected to go
and where his status is no longer that of an invitee.70 In
jurisdictions that no longer distinguish invitees from licensees and
trespassers, the innkeeper would owe the duty of reasonable care
to those on the premises regardless of invitee status.71
Applying negligence and cause rules. Given the general duty of
reasonable care, the ordinary rules for establishing breach of the
duty and causation apply. For example, res ipsa loquitur seldom
applies in slip-and-fall cases, but some injury-producing conditions
on the premises will warrant application of res ipsa loquitur to
show a breach of the duty of care.72 And violation of a fire safety
statute by the innkeeper may subject him to liability under the
negligence per se rules.73
Natural accumulations of ice. In a few cases, the innkeeper’s
duty may be less than the duty to use reasonable care. Some
jurisdictions may shield land occupiers, including innkeepers, from
liability for negligent failure to clear natural accumulations of ice
and snow,74 although that rule seems particularly inappropriate
given the relationship of innkeeper and guest.
Innkeeper as carrier. In one situation, the innkeeper’s duty may
be greater than the duty of reasonable care. As shown in discussing
common carriers, some jurisdictions say that one who operates
elevators or escalators is a common carrier owing a heightened
duty of care with respect to that conveyance.75 In those
jurisdictions, the innkeeper, in his capacity as a common carrier
but not otherwise, would presumably be subject to that special
duty or standard of care.76
Active negligence and active forces causing harm. Innkeepers
are also under a duty of reasonable care to avoid creating risks of
harm to guests from active forces. And of
454
course they must make reasonable efforts to prevent harm

when the risk arises. Exemplifying both points is Knott Corp. v.
Furman,77 where the innkeeper was held responsible for
negligence in storing combustibles, which started a fire, then in
leaving doors open so as to permit spread of smoke into guest
rooms, and finally in failing to warn guests and to notify the fire
department in a timely manner.
Protection from third persons. In one narrow respect the duty of
innkeepers is expanded by comparison to the duty people generally
owe to strangers. The usual rule that one owes no duty to take
positive steps to assist another who is in danger even when
assistance would be reasonable and safe.78 When a special
relationship exists between the plaintiff and defendant, however,
the parties are no longer strangers and the defendant owes a duty
of care, which, if breached, can result in liability. The relationship
of innkeeper and guest is such a special relationship, giving rise to
a duty of care and to potential liability on the part of the innkeeper
for attacks on the guest by others.79 In these cases, the general
duty of care is not a duty to use more than reasonable care under
the circumstances, but it is nonetheless a duty greater than the
duty strangers owe.
§ 19.5 Duty of Fiduciaries in Personal-Injury
Cases
Fiduciary duties are most often determinative in economic
harm cases,80 but fiduciary duties also sometimes play a critical
role in analysis of ordinary negligence cases involving physical or
emotional harm. This is so because a fiduciary, including one in a
confidential relationship with the plaintiff, owes a series of special
duties to his beneficiary. A breach of any of those duties is a tort
and is actionable by the beneficiary, provided the harm caused is
within the scope of the fiduciary duty.
Nature of fiduciary’s duty. The fiduciary’s overall duty is one of
loyalty to the beneficiary.81 The duty of loyalty ordinarily requires
the fiduciary to put his beneficiary’s interests ahead of his own.
And notably, the fiduciary may be obliged to act in a positive way
to protect the beneficiary, meaning that the general rule of
nonliability for “doing nothing” offers little protection for the
fiduciary.
Who is a fiduciary? Courts attach fiduciary duties to many
named special relationships, such as the relationship of trustee to
beneficiary, agent to principal, lawyers to clients, doctors to
patients, personal representatives to the estates they represent.82
Some other fiduciary relationships, often called confidential
relationships, are less formalized. These are ad hoc relationships,
built on implicit or explicit undertakings of loyalty of a particular
person and confidence reposed in him by the beneficiary.83
Ordinary contract or business relationships entail no fiduciary
duties; in those cases, the parties are said to deal as adversary
bargainers or “at arms-length.”
455
Breach and type of harm. Breach of fiduciary duty is often

intentional in the sense that the fiduciary often knows his intended
breach of duty is harming the beneficiary, but in other cases, the
breach of fiduciary duty is caused by negligence.84 The types of
harm that result from fiduciary breach may also vary from case to
case. They are often purely economic harms. There are, however, a
few cases that implicate the fiduciary’s duty in physical and
emotional harm cases, including cases that implicate the
fiduciary’s duty to make full disclosure85 and those arising from a
claim of clergy sexual abuse or exploitation.86 The claim is also
sometimes asserted in cases of patient abuse by a psychiatrist,
psychologist, or marriage counselor.87 Sexual abuse or exploitation
of a person who does not appear to consent or to have the capacity
to consent would be a tort regardless of any fiduciary duty. For
that reason, the claim that such abuse violated a fiduciary duty
might seem at first glance to add nothing to the abuser’s duty.
However, a fiduciary duty may expand the ordinary reasonable
care duty in several situations.
§ 19.6 Fiduciary Relationship Imposing an
Affirmative Duty to Protect from Others
A fiduciary relationship is a kind of “special relationship” that
functions to impose a duty to take positive reasonable steps to
protect a beneficiary. Under the nonfeasance rule, strangers who
know of a priest’s sexual abuse of a minor may have no duty at all
to do anything about it,88 but if the diocese knows its priests are
abusing children with whom it has a special relationship, general
rules impose a duty to take reasonable action for their protection.89
That is equally so if the special relationship is a fiduciary one. In
such cases, the fiduciary such as a church organization is called
upon to take positive steps of reasonable care to protect children
from the priests, a duty not required of strangers.90
Finding fiduciary duty: clergy child abusers. Although
parishioners and congregation members might all place their trust
in the church not to act in ways antagonistic to their interests,
courts have been reluctant to find that religious leaders and
organizations are fiduciaries to every person they are supposed to
serve.91 However, when the religious institution engages in a
relationship focused on individuals or particular groups within the
religious body, inviting their trust and confidence, the case for a
fiduciary duty seems especially strong and has been recognized in
the courts.92 In
456
this light, a fiduciary relationship can be found when an altar

boy submits to the priest,93 a minor with a potential church career
is molested by his priest-mentor,94 a church member is
individually pressured by the church to act against her own
interests or those of her family,95 or a couple trusts the priest in
marriage or other counseling.96 Secular therapy or counseling, of
course, also entails a fiduciary relationship.97 In these cases, the
religious organization or other employer of an abuser is itself a
fiduciary, and will be liable for its own fiduciary breach. If it knows
or should know that abuse is a risk, or if it ratifies the abuse or
aids and abets it, or if it is guilty of doing nothing after the priest’s
predatory nature is discovered, liability may follow.98
Whether fiduciary relationship is necessary to the duty. While a
fiduciary relationship is sufficient to invoke a duty of the religious
organization to protect the beneficiary, it is not so clear that
fiduciary relation is necessary to invoke that duty. Any relationship
the court is willing to recognize as a special relationship will suffice
to impose a duty to use reasonable care for the beneficiary’s
protection.99 Negligently hiring, retaining or supervising a known
dangerous priest, or placing him in a position to prey on children,
might also furnish ground for relief.100 And so might the diocese’s
control over the perpetrators.101 In this light, the claim of a
fiduciary relationship appears to add little to the duty, although it
may affect collateral issues.102
First Amendment defenses for clergy and religious
organizations. First Amendment protections for exercise of religion
and prohibitions against establishment of religion raise questions
entirely separate from the question whether a state-law fiduciary
duty exists. The constitutional question is therefore outside the
scope of this chapter on the duty issue.103 However, there is a
perception among some observers that First Amendment religious
freedom defenses are more likely to fail once the court recognizes a
fiduciary duty.104 As shown above, a number of cases have
recognized a fiduciary duty,
457
breach of which would be actionable. But that is not to say that

court barring a negligent supervision claim on First Amendment
grounds would uphold the claim on the same facts once a fiduciary
relationship is found to exist. The cases do not say so.105 Some
cases even expressly hold that the First Amendment bars fiduciary
breach claims for clergy sexual abuse.106 In any event, for practical
reasons, it should be recognized that some courts have avoided the
duty issue by concluding that the First Amendment prohibits
courts from considering clergy abuse and its tacit approval by
religious organizations where the plaintiff claims that the abusive
clergy were negligently hired or retained or that they were
chargeable with negligent counseling.107
________________________________
1 See, e.g., Booth v. Quality Carriers, Inc., 276 Ga.App. 406, 623
S.E.2d 244 (2005); see also 2 Dobbs, Hayden & Bublick, The Law of Torts §
260 (2d ed. 2011 & Supp).
2 The Warsaw Convention (now the Montreal Convention) provides
for strict liability for accidents causing injury aboard an international air
carrier, but only for approximately the first $135,000 in damages. Above
that sum, carriers can avoid liability by proving that they were not
negligent. See Edward C. Bresee, Jr., and Sirce Elliott, Recent
Developments in Aviation Law, 71 J. Air L. & Com. 101, 170 (2006).
3 Robert J. Kaczorowski, The Common-law Background of
Nineteenth-Century Tort Law, 51 Ohio St. L. J. 1127, 1158 (1990),
explains the difference: passengers and guests are not inanimate objects
but can instead help take care of themselves.
4 In Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 150 Cal. Rptr. 3d
551, 290 P.3d 1158 (2012), the court held that the owner of a bumper car
ride at an amusement park was not held to the higher duties of a common
carrier. The court distinguished its earlier decision in Gomez v. Superior
Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41 (2005), which
had held the operator of a roller coaster ride to the higher common carrier
duty, on the ground that in the bumper car ride, “patrons exercise
independent control over the steering and acceleration of the cars,” and “do
not surrender their freedom of movement and actions” to the operator. In
short, said the court, unlike the situation with the roller coaster, riders on
the bumper car ride “are not passively carried or transported from one
place to another.”
5 If the intending passenger rightfully enters the premises or the
conveyance itself, she is entitled to the utmost care, even though the fare
was not actually paid before injury occurred. See Greater Richmond
Transit Co. v. Wilkerson, 242 Va. 65, 406 S.E.2d 28 (1991).
6 Fairchild v. The California Stage Co., 13 Cal. 599 (1859), codified
in Cal.Civ. Code § 2100 (“carrier of persons for reward must use the
utmost care and diligence for their safe carriage”); Markwell v. Whinery’s
Real Estate, Inc., 869 P.2d 840 (Okla. 1994).
7 Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756 (7th Cir. 2003)
(Ill. law); Doser v. Interstate Power Co., 173 N.W.2d 556 (Iowa 1970); Todd
v. Mass Transit Administration, 373 Md. 149, 816 A.2d 930 (Md. 2003).
8 Gomez v. Superior Court, 35 Cal. 4th 1125, 1130, 113 P.3d 41, 44,
29 Cal. Rptr. 3d 352, 356 (2005) (“the degree of care and diligence which
they must exercise is only such as can reasonably be exercised consistent
with the character and mode of conveyance adopted and the practical
operation of the business of the carrier”).
9 Gleeson v. Virginia Midland Ry. Co., 140 U.S. 435, 11 S.Ct. 859,
35 L.Ed. 458 (1891) (utmost care and diligence “as far as human care and
foresight will go”); Burton v. Des Moines Metro. Transit Auth., 530 N.W.2d
696 (Iowa 1995) (“duty to protect passengers as far as human care and
foresight will go”).
10 Washington Metro. Area Transit Auth. v. Reading, 109 Md.App.
89, 674 A.2d 44 (1996).
11 See Burton v. Des Moines Metro. Transit Auth., 530 N.W.2d 696
(Iowa 1995); Hines v. Garrett, 131 Va. 125, 108 S.E. 690 (1921) (“A carrier,
in the discharge of the very high duty which it owes to its passengers, is
bound to know the character of the place at which it wrongfully discharges
them; and if the defendant wrongfully required the plaintiff to get off at a
dangerous place without knowing it, it did so at its peril.”).
12 See, e.g., Montgomery v. Midkiff, 770 S.W.2d 689 (Ky. Ct. App.
1989) (jury question whether failure to provide seat belts in bus for
disabled passengers was negligence).
13 Nunez v. Professional Transit Management of Tucson, Inc., 229
Ariz. 117, 271 P.3d 1104 (2012); Union Traction Co. of Indiana v. Berry,
188 Ind. 514, 121 N.E. 655 (1919); Bethel v. New York City Transit
Authority, 92 N.Y.2d 348, 703 N.E.2d 201, 681 N.Y.S.2d 201 (1998).
14 See 3 Harper, James & Gray, The Law of Torts 509 (2d ed. 1986).
15 See Capital Transit Co. v. Jackson, 149 F.2d 839 (1945); Plumb v.
Richmond Light & R.R., 233 N.Y. 285, 135 N.E. 504 (1922).
2011 & Supp.).
17 E.g., Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148, 150 Cal. Rptr.
3d 551, 290 P.3d 1158 (2012) (bumper car ride); Chavez v. Cedar Fair, LP,
450 S.W.3d 291 (Mo. 2014); but see Gomez v. Superior Court, 35 Cal. 4th
1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41 (2005) (operator of a roller coaster
ride held to the higher common carrier duty). The California court in
Nalwa distinguished Gomez on the ground that in the bumper car ride,
“patrons exercise independent control over the steering and acceleration of
the cars,” and “do not surrender their freedom of movement and actions” to
the operator. In short, said the court, unlike the situation with the roller
coaster in Gomez, riders on the bumper car ride “are not passively carried
or transported from one place to another.”
18 McClure v. Johnson, 50 Ariz. 76, 69 P.2d 573 (1937); Hammerlind
v. Clear Lake Star Factory Skydiver’s Club, 258 N.W.2d 590 (Minn. 1977).
19 Thus school bus operators are not usually common carriers, but
some courts say that such operators owe the highest duty of care
nonetheless.
20 The distinction may also be significant in interpretation of
regulatory or licensing statutes and in determining insurance coverage.
This chapter does not address those concerns.
21 Shoemaker v. Kingsbury, 79 U.S. 369, 20 L.Ed. 432 (1870)
(common carriers “undertake, for hire, to carry all persons indifferently
who apply for passage”); Doe v. Rockdale Sch. Dist. No. 84, 287 Ill. App. 3d
791, 679 N.E.2d 771, 223 Ill. Dec. 320 (1997) (“A common carrier
undertakes for hire to carry all persons indifferently, who may apply for
passage so long as there is room and there is no legal excuse for refusal.”);
Wright v. Midwest Old Settlers and Threshers Assn., 556 N.W.2d 808
(Iowa 1996) (“the distinctive characteristic of a common carrier is that it
holds itself out as ready to engage in the transportation of goods or
persons for hire, as public employment, and not as a casual occupation”).
The undertaking to accept all passengers can be and is conditioned on
availability of space and on the absence of a legal excuse for refusal, such
as the passenger’s drunkenness.
22 See Woolsey v. Nat’l Transp. Safety Bd., 993 F.2d 516 (5th Cir.
1993) (operator can be a common carrier if it “held itself out to the public
or to a definable segment of the public as being willing to transport for
hire, indiscriminately;” operator here “held itself out as being willing to
serve all members of the music industry who were able to pay for its
services”).
23 Jones v. Dressel, 623 P.2d 370 (Colo. 1981) (air service for
parachute drops was not primarily engaged in carriage of passengers and
not a carrier); Wright v. Midwest Old Settlers and Threshers Assn., 556
N.W.2d 808 (Iowa 1996) (casual transport excluded); Mount Pleasant
Independent Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208 (Tex. 1989)
(school district operating school buses was not in the business of carrying
passengers).
24 Thus in railroad free-pass cases, the railroad could exempt itself
from liability to the passenger traveling wholly without payment or other
consideration. See Walther v. Southern Pac. Co., 159 Cal. 769, 116 P. 51
(1911).
25 Hennigan v. Nantasket Boat Line, Inc., 329 Mass. 690, 110 N.E.2d
323 (1953). Even a cruise ship is a common carrier. Nadeau v. Costley, 634
So.2d 649 (Fla. Dist. Ct. App. 1994).
26 Semon v. Royal Indemn. Co., 279 F.2d 737 (5th Cir. 1960).
27 Carter v. Kurn, 127 F.2d 415 (8th Cir. 1942).
28 Shoemaker v. Kingsbury, 79 U.S. 369, 20 L.Ed. 432 (1870).
29 George v. Estate of Baker, 724 N.W.2d 1 (Minn. 2006).
30 Dymond Cab Co. v. Branson, 191 Okla. 604, 131 P.2d 1007 (1942).
Arguably the rental agency is not any kind of carrier when the lessee is in
control of the vehicle.
31 Hancock v. Bryan County Bd. of Educ., 240 Ga. App. 622, 522
S.E.2d 661(Ga. App. 1999) (a school bus is not a common carrier because it
was used “solely in transporting schoolchildren and teachers to and from
public schools”); Mount Pleasant Independent Sch. Dist. v. Estate of
Lindburg, 766 S.W.2d 208 (Tex. 1989) (emphasizing that school district
was not in the business of carrying passengers and did not undertake to
provide transport for the public generally).
32 Grace v. Kumalaa, 47 Haw. 281, 386 P.2d 872 (1963).
33 Hollander v. Smith & Smith, 10 N.J.Super. 82, 76 A.2d 697 (1950)
(ambulance company did not hold itself out as public or common carrier,
hence was a private carrier). Ambulance personnel performing
professional services are governed by the professional standard of care
rather than by the common carrier rule. Bondy v. Allen, 635 N.W.2d 244
(Minn. App. 2001).
34 Bricks v. Metro Ambulance Serv., Inc., 177 Ga.App. 62, 338 S.E.2d
438 (1985) (“No individual is more at the mercy of a carrier than a person
dying, or ill or injured enough to require carriage. In holding that this kind
of ambulance is a common carrier, we decline to discriminate against such
person merely because the ambulance he is forced to ride in was not forced
to take him.”).
35 E.g., O’Dee v. Tri-County Metropolitan Transp. Dist. of Oregon,
212 Or. App. 456, 157 P.3d 1272 (2007).
36 E.g., Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756 (7th Cir.
2003).
37 See D. E. Buckner, Annotation, Air Carrier as Common or Private
Carrier, and Resulting Duties as to Passenger’s Safety, 73 A.L.R.2d 346.
38 Ingham v. Luxor Cab Co., 93 Cal. App. 4th 1045, 113 Cal. Rptr. 2d
587 (2002) (as common carrier, taxi operator has duty to deliver passenger
to her destination and is liable for wrongful ejectment).
39 Hennigan v. Nantasket Boat Line, Inc., 329 Mass. 690, 110 N.E.2d
323 (1953).
40 E.g., Henderson v. Taylor, 315 S.W.2d 777 (Mo. 1958) (but
ferryman was not negligent on the facts).
41 Martin v. Chicago Transit Authority, 128 Ill. App. 3d 837, 471
N.E.2d 544, 84 Ill. Dec. 15 (1984) (elevated train); Reardon v. Boston
Elevated Ry. Co., 311 Mass. 228, 40 N.E.2d 865 (1942) (subway).
42 E.g., Cash v. Otis Elevator Co., 684 P.2d 1041 (Mont. 1984).
43 Vandagriff v. J.C. Penney Co., 228 Cal.App.2d 579, 39 Cal.Rptr.
671 (1964).
44 Platzer v. Mammoth Mountain Ski Area, 104 Cal.App.4th 1253,
128 Cal.Rptr.2d 885 (2002); cf. Bayer v. Crested Butte Mountain Resort,
Inc., 960 P.2d 70 (Colo. 1998) (ski lift operator owes duty of a common
carrier even though he is not characterized as a carrier).
45 See Gomez v. Superior Court, 35 Cal.4th 1125, 113 P.3d 41, 29
Cal.Rptr.3d 352 (2005) (roller coaster).
46 Jones v. Dressel, 623 P.2d 370 (Colo. 1981).
47 Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210 (Tex. 2003).
48 Chavez v. Cedar Fair, LP, 450 S.W.3d 291 (Mo. 2014); Dockery v.
World of Mirth Shows, Inc., 264 N.C. 406, 142 S.E.2d 29 (1965).
Amusement operations of course also owe the duty of ordinary or
reasonable care as to acts and conditions that are distinct from rides.
Dahna v. Clay County Fair Ass’n, 232 Iowa 984, 6 N.W.2d 843 (1942).
49 See Skelton v. Chicago Transit Auth., 214 Ill. App. 3d 554, 573
N.E.2d 1315, 158 Ill. Dec. 130 (1991).
50 Aliotta v. Nat’l R.R. Passenger Corp., 315 F.3d 756 (7th Cir. 2003).
51 Orr v. Pacific Southwest Airlines, 208 Cal. App. 3d 1467, 257 Cal.
Rptr. 18 (1989); Davis v. South Side Elevated R.R., 292 Ill. 378, 127 N.E.
66 (1920). Distinguish falls in boarding or alighting; as to these, the
utmost-care rule applies. E.g., Saltis v. A.B.B. Daimler Benz, 243 Ga. App.
603, 533 S.E.2d 772 (2000) (automated train doors closed on passenger).
52 See Trevino v. Flash Cab Co., 272 Ill. App. 3d 1022, 651 N.E.2d
723, 209 Ill. Dec. 545 (1995).
53 Some cases both extend and limit the utmost-care duty to any
sphere of carrier activity that constitutes “a mobile or animated hazard to
the passenger.” See Orr v. Pacific Southwest Airlines, 208 Cal. App.3d
1467, 257 Cal. Rptr. 18 (1989).
54 See Louisville & J. Ferry Co. v. Nolan, 135 Ind. 60, 34 N.E. 710
(1893) (“It is bound to exercise the strictest of diligence, not only in
carrying them to their destination, but also in setting them down safely, if
human care and foresight can do so.”); Hines v. Garrett, 131 Va. 125, 108
S.E. 690 (1921). Although the carrier cannot properly discharge the
passenger into a position of peril—“for example allowing a drunk to exit
onto a busy highway at night”—unforeseeable harms that otherwise occur
after a passenger is discharged in a safe place are not the carrier’s
responsibility. See Mastriano v. Blyer, 779 A.2d 951 (Me. 2001); Jay M.
Zitter, Annotation, Liability of Motorbus Carrier or Driver for Death Of, or
Injury To, Discharged Passenger Struck by Other Vehicle, 16 A.L.R.5th 1
(1993).
55 Takashi Kataoka v. May Dep’t Stores Co., 60 Cal.App.2d 177, 140
P.2d 467 (1943) (small child, not riding escalator but testing escalator with
his hand, was not a passenger).
57 Kenny v. Southeastern Pennsylvania Transportation Authority,
581 F.2d 351 (3d Cir. 1978); Todd v. Mass Transit Administration, 373 Md.
149, 816 A.2d 930 (2003) (carrier subject to liability for passenger injury
resulting from attack by fellow passengers if “it knew or should have
known of the imminent harm with adequate time and available resources
to have prevented or mitigated it”); La Sota v. Philadelphia Transp. Co.,
421 Pa. 386, 219 A.2d 296 (1966).
58 McPherson v. Tamiami Trail Tours, Inc., 383 F.2d 527 (5th Cir.
1967) (seemingly a racially motivated attack on bus; carrier required to
use “extraordinary care and diligence to protect its passengers in transit
from violence or injury by third persons”); Quigley v. Wilson Line of Mass.,
338 Mass. 125, 154 N.E.2d 77 (1958) (“a common carrier owes to its
passengers the highest degree of care in the anticipation and prevention of
violence from its employees, other passengers, and even strangers, as is
consistent with the nature and operation of its business. The test is
foreseeability of harm”); contra, Rodriguez v. New Orleans Pub. Serv., Inc.,
400 So.2d 884 (La. 1981) (standard of care is not that of a carrier but that
of a business, because attacks on public conveyance are not risks of
transportation).
59 See, e.g., Lopez v. Southern California Rapid Transit Dist., 40
Cal.3d 780, 710 P.2d 907, 221 Cal. Rptr. 840 (1985).
60 E.g., Parlato v. Connecticut Transit, 181 Conn. 66, 434 A.2d 322
(1980) (passenger fell in a hole covered with leaves after alighting, no
negligence); Hurd v. Williamsburg County, 363 S.C. 421, 611 S.E.2d 488
(2005) (for injury after passenger safely alights, ordinary care is the
standard; passenger discharged from bus in the dark, and on the shoulder
of a road known to be dangerous, was injured attempting to cross behind
the bus; jury question whether defendant was negligent).
61 Forminio v. City of New York, 68 A.D.3d 924, 892 N.Y.S.2d 134
(2009).
62 E.g., Locke v. Ford, 54 Ga. App. 322, 187 S.E. 715 (1936) (driver of
taxicab allegedly deposited four-year-old child between crossing streets in
the center of a heavily traveled city street).
63 See, e.g., Paraskevaides v. Four Seasons Washington, 272 F.3d
886 (D.C. Cir. 2002) (theft of guest’s jewelry). State statutes often protect
innkeepers from strict liability. See, e.g., Cal. Civ. Code § 1960.
64 Hassan v. Stafford, 472 F.2d 88 (3d Cir. 1973) (death in a fire;
negligence alleged was failure to take certain fire precautions); John Q.
Hammons, Inc. v. Poletis, 954 P.2d 1353 (Wyo. 1998) (defective bathtub
fixture led to fall).
65 Hollander v. Days Inn Motel, 705 So.2d 1126 (La. App. 1998);
Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428 (2006) (“utmost
care”).
66 Woodty v. West’s Lamplighter Motels, 171 Ariz. 265, 830 P.2d 477
(Ct. App. 1992)
67 Smith v. Otis Elevator Co., 217 F.Supp. 2d 105 (D. Me. 2002)
(guest died after he was trapped between two elevator doors); John Q.
Hammons, Inc. v. Poletis, 954 P.2d 1353 (Wyo. 1998) (towel bar in guest’s
room pulled loose, leading guest to fall in the tub). As to invitees generally,
see § 20.7.
68 Woodty v. West’s Lamplighter Motels, 171 Ariz. 265, 830 P.2d 477
(Ct. App. 1992); Corinaldi v. Columbia Courtyard, Inc., 162 Md. App. 207,
873 A.2d 483 (2005).
69 Steinberg v. Irwin Operating Co., 90 So.2d 460 (Fla. 1956).
70 See Jones v. Bland, 182 N.C. 70, 108 S.E. 344 (1921) (invitee
status is lost when visitor to guest goes to some “remote portion of the
premises … and where there is no reason to expect him to go”). This is an
application of the general rule of premises liability. See Chapter 20.
71 See § 20.9. As reflected there, some jurisdictions have abolished
the distinction between invitees and licensees, but have retained the old
limited duty rules for trespassers. Under any system of analysis, the
innkeeper would continue to owe a guest the duty of reasonable care.
72 Marx v. Huron Little Rock, 88 Ark.App. 284, 198 S.W.3d 127
(2004) (guest thrown to floor when toilet seat slipped off toilet).
73 Herberg v. Swartz, 89 Wash.2d 916, 578 P.2d 17 (1978).
74 Morin v. Traveler’s Restat Motel, Inc., 704 A.2d 1085 (Pa. Super.
1997). Some snow and ice cases turn, not on the limited duty, but on the
absence of negligence, as where the innkeeper does not have time to clear
the snow or ice. E.g. Mangieri v. Prime Hospitality Corp., 251 A.D.2d 632,
676 N.Y.S.2d 207 (1998).
75 See § 19.10 & 19.11.
76 Smith v. Otis Elevator Co., 217 F.Supp.2d 105 (D. Me. 2002)
(innkeeper owed only a duty of reasonable care with respect to elevator
safety).
77 Knott Corp. v. Furman, 163 F.2d 199 (4th Cir. 1947).
80 See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 696 to 699
(2d ed. & Supp.).
81 See Deborah A. DeMott, Breach of Fiduciary Duty: On Justifiable
Expectations of Loyalty and Their Consequences, 48 Ariz. L. Rev. 925
(2006).
82 E.g., Stafford v. Shultz, 42 Cal.2d 767, 777, 270 P.2d, 7 (1954)
(“the existence of the relationship between the parties of physician and
patient, which in contemplation of law is a fiduciary one”).
83 E.g., Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss.
2004) (no fiduciary relationship between Episcopal priest and parishioner
absent a showing that parishioner reposed special trust and confidence in
priest).
84 See § 696. If the fiduciary intends a breach of his duty but harm is
neither substantially certain nor intended, his intentional act is merely
creating a risk. Intentional risk-taking is a negligent tort, not an
“intentional” one. See § 9.7.
2011 & Supp.).
86 See id. § 268. As to clergy malpractice generally, see id. §§ 329 to
332.
87 See id. §§ 268 & 269.
88 See §§ 25.1 & 26.1.
89 See §§ 26.3 & 26.9.
90 The priest himself is presumably a fiduciary, too, but to describe
him by that label may add little in many cases; having taken positive
actions, he could not hide behind the nonfeasance rule in any event.
91 Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss. 2004);
Berry v. Watchtower Bible and Tract Soc’y of New York, 152 N.H. 407, 879
A.2d 1124 (2005).
92 See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196
F.3d 409 (2d Cir. 1999) (emphasizing priest’s relationship with abused boy
in special groups, field trips and the like); Sanders v. Casa View Baptist
Church, 134 F.3d 331 (5th Cir. 1998) (emphasizing jury instruction that
“the primary relationship between a minister and a parishioner is not a
fiduciary one, and that Baucum could not be held liable for breaching his
fiduciary duties unless he ‘acquired and abused’ influence and ‘betrayed’
confidences learned in a ‘relationship of trust’ ”); F.G. v. MacDonell, 150
N.J. 550, 696 A.2d 697 (1997).
93 Fortin v. The Roman Catholic Bishop of Portland, 871 A.2d 1208
(Me. 2005).
94 Doe v. Liberatore, 478 F.Supp.2d 742 (M.D. Pa. 2007).
95 Cf. Berry v. Watchtower Bible and Tract Soc’y of New York, 152
N.H. 407, 879 A.2d 1124 (2005) (church did not report child abuse and
allegedly counseled mother of child to keep the matter within the church;
no fiduciary duty was shown because “the plaintiffs did not allege that the
elders acquired influence over them or that their confidence had been
reposed in the elders”).
96 Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988); Doe v. Evans,
814 So.2d 370 (Fla. 2002) (diocese had fiduciary duty to take reasonable
steps to control sexually predatory priests who counsel vulnerable
individuals); F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697 (1997).
97 See, e.g., Purdy v. Fleming, 655 N.W.2d 424 (S.D. 2002) (secular
counseling).
98 See, rejecting vicarious liability of the priests’ employers but
imposing liability upon them for their own breach of fiduciary duty, Doe v.
Liberatore, 478 F.Supp. 2d 742 (M.D. Pa. 2007); Moses v. Diocese of
Colorado, 863 P.2d 310, 322 (Colo. 1993).
99 See Fortin v. The Roman Catholic Bishop of Portland, 871 A.2d
1208 (Me. 2005) (presenting fiduciary duty as one form of special
relationship that triggers a duty to take positive steps toward reasonable
care); see §§ 26.3 & 26.9.
100 The duty to use reasonable care in hiring, retaining, or placing an
employee who foreseeably may injure others is generally accepted
independent of any fiduciary duty and independent of clergy sexual abuse.
See, e.g., Underberg v. Southern Alarm, Inc., 284 Ga. App. 108, 110, 112,
643 S.E.2d 374, 377, 378 (2007); J. v. Victory Tabernacle Baptist Church,
236 Va. 206, 372 S.E.2d 391 (1988). See § 423 (general principle). As to
clergy liability, see 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 329 to
332 (2d ed. 2011 & Supp.).
101 See Fortin v. The Roman Catholic Bishop of Portland, 871 A.2d
1208 (Me. 2005) (control over priests as one ground for church’s duty).
2011 & Supp.).
103 See id., §§ 329 to 332.
104 Diana L. Grimes, Practice What You Preach: How Restorative
Justice Could Solve the Judicial Problems in Clergy Sexual Abuse Cases,
63 Wash. & Lee L. Rev. 1693, 1721 (2006).
105 However, some authority, having condemned claims for clergy
malpractice, has purported to distinguish fiduciary breach claims, which
are actionable. See Moses v. Diocese of Colorado, 863 P.2d 310, 321 n.13
(Colo. 1993).
106 Dausch v. Rykse, 52 F.3d 1425 (7th Cir. 1994); H.R.B. v. J.L.G.,
913 S.W.2d 92 (Mo. App. 1995) (recognizing such actions would “inevitably
entangle civil courts in religious matters”); Schieffer v. Catholic
Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907 (1993).
107 E.g., Franco v. The Church of Jesus Christ of Latter-Day Saints,
21 P.3d 198 (Utah 2001); §§ 329 & 332 (clergy malpractice); Marjorie A.
Shields, Annotation, Liability of Church or Religious Organization for
Negligent Hiring, Retention, or Supervision of Priest, Minister, or Other
Clergy Based on Sexual Misconduct, 101 A.L.R.5th 1 (2002) (canvassing
cases going both ways).
459
Chapter 20
PREMISES LIABILITY
Analysis
A. DUTIES TO THOSE ON THE PREMISES
§ 20.1 Common-Law Classification of Entrants on Land
§ 20.9 Changing Duties and Categories: Extending the Duty of
Reasonable Care to Entrants Other than Invitees
B. DUTIES TO THOSE OUTSIDE THE PREMISES
§ 20.12 Active Conduct and Artificial Conditions on the Land
C. DUTIES OF VENDORS AND LESSORS
__________
A. DUTIES TO THOSE ON THE PREMISES

§ 20.1 Common-Law Classification of Entrants on
Land
The traditional common law classifies entrants on land as
either trespassers, licensees, or invitees, classifications that
abound with subtleties and sub-classifications.1 Under this
traditional categorization approach, landowners—a term that
includes possessors of land and those who stand in their shoes2—
owe different duties to each class, although the duty to trespassers
and licensees is closely similar. The standard duty of care, that of
the reasonable and prudent person under the same of similar
circumstances, is owed only to invitees; a lesser duty is owed to
those in either of the
460
other categories. Most courts continue to begin the analysis of

landowner duties to entrants by classifying the entrant using the
traditional categories, although a substantial number have now
held that the duty of ordinary care extends to licensees or even
trespassers, as well as to invitees.3
The trespasser category includes anyone4 who enters another’s
land without the owner’s express or implied consent. The category
is thus broader than simply the group of entrants who might be
sued for the tort of trespass. For example, a person who was
carried unconscious onto the land by others might be a trespasser
for the purpose of determining the landowner’s duty of care.5 The
category is fluid; persons who were invitees or licensees in one part
of the premises might become trespassers when they enter areas to
which no permission extends.6
No duty of reasonable care to trespassers. In the traditional
scheme, the landowner does not owe a duty of reasonable care to
trespassers.7 Instead, the duty is merely not to cause intentional
injury, to set a trap, or to cause wanton injury.8 A statute
regulating the landowner’s conduct might9 or might not10 have any
effect on this common-law rule. The rule severely limiting duties of
care to trespassers is slightly less harsh that it might sound,
because in many cases to which it would apply, the landowner
probably was not negligent even under an ordinary care standard.
In addition, modern courts have modified the rule substantially
both by way of definitions and by way of exceptions.
Even a trespasser is not an outlaw.11 In most states, once the
landowner has discovered the trespasser’s presence on the land in
circumstances that suggest he might encounter danger, the
landowner comes under a duty of ordinary care.12 Under the
461
Second Restatement’s view, foreseeability of a trespasser is not

enough; the landowner must know or have reason to know that he
is actually present.13
Some jurists regard the known-trespasser rule as an exception
to the general willful-wanton standard.14 Others think that it is an
application of the general willful and wanton test because failure
to exercise ordinary care after discovery of a human being in
danger is regarded as willful and wanton misconduct for which
landowners are always liable.15 Either way, the possessor is under
a duty of reasonable care once he knows or is on notice of both the
trespasser’s presence and the impending danger.
Breach of duty. With the duty of care so established, the
plaintiff still has the burden of showing that it was violated by
failure to act as a reasonable person under the circumstances. In
many cases a warning from the landowner that the trespasser is
about to walk into danger suffices to fulfill his duty. If the danger
is one that the trespasser could reasonably be expected to see and
avoid, even a warning may not be required.
Affirmative action to save trapped trespasser. If the landowner
has breached no duty to a trespasser, but discovers that the
trespasser is trapped, or is injured and helpless, it would seem that
the landowner must then exercise reasonable care to provide
affirmative assistance, even though the landowner did not cause
harm in the first place.16 This is in line with the rule in other
circumstances that requires reasonable care when the defendant’s
instrumentality innocently causes harm.17
Foreseeability tests. For the Second Restatement, foreseeability
of trespassers was enough to trigger a duty only if the trespassers
were “constantly” trespassing on a limited area.18 Otherwise, the
duty to trespassers would be triggered only if the landowner
actually knew or had reason to know that the trespasser was about
to encounter a danger. “Have reason to know” was a term of art. It
did not mean foreseeability but specific knowledge that leads to the
inference that the trespasser is actually present.19 However, some
courts have departed from the Restatement’s scheme by treating
foreseeable trespassers as if they were “known” trespassers.
The result for these courts is that if a trespasser’s presence and
encounter with danger is reasonably foreseeable, the landowner
does owe a duty of reasonable care. For example, where a
landowner places an unmarked cable in a wooded area where
horseback riders, snowmobilers, motorcyclists and others
foreseeably would be harmed,
462
the landowner cannot escape under the no-duty rule; he owes a

duty of reasonable care.20 Some courts get the same results on the
theory that the landowner, by failing to make the cable reasonably
visible, has acted willfully or wantonly.21 Either way, the total
picture of duties to trespassers is very different from the one
presented by the general no-duty rule.
Licensees are those on the land with the landowner’s express or
implied consent22 but who are there for their own purposes.23 They
do not qualify for invitee status because they are not on land open
to the public generally, and not present for any potential economic
transaction with or benefit to the landowner.24 One who is an
invitee on one portion of the land may be a licensee on another.25
The traditional definition of licensees has the effect of saying
that even social guests are licensees, not invitees, because,
although the owner’s invitation is consent to their presence, they
are not potentially engaged in direct economic transactions with
the owner.26 Quite a few other people fit the definition of a
licensee. For examples, people who are hunting or fishing on the
land with at least the tacit or implied permission of the landowner
are licensees,27 as are those permissibly on the land to look for
their pet,28 take a short cut,29 sell goods or distribute advertising30
or religious literature31 or to solicit contributions.32 So are people
who are on the premises to help friends or relatives
463
with work around the house33 or to help with a Girl Scout

troop34 or to study the Bible with an owner who does not make a
business of such things.35 Likewise, family members at the
defendant’s home for no better reason than that the defendant
enjoys their company are of course only licensees.36
Courts applying the traditional common law classification
system have repeatedly said that the duty owed to licensees is the
same or substantially the same as the duty owed to trespassers.37
In the absence of special circumstances, courts do not regard the
landowner’s permission to enter, or even his invitation to a social
guest, as an assurance that the premises will be made safe.38
Hence, the landowner is under no general duty of reasonable care
with respect to conditions on the land, but owes only the duty not
to intentionally, willfully, or wantonly injure the licensee.39 This
means, subject to the exceptions below, that the landowner need
not inspect the land or correct unsafe conditions for the licensee’s
benefit.40 As with trespassers, a duty of reasonable care is imposed
once the landowner actually knows or has notice of the licensee’s
presence and knows or has notice of the danger the licensee is
about to encounter.41
Conditions on the land. The duty to licensees may go beyond the
duty to trespassers both as to passive conditions on the land and as
to active negligence. As to conditions, the landowner is under a
duty at least to warn when he knows, or has reason to know42 both
(1) the existence of a danger and (2) the plaintiff’s presence in a
place where she might encounter it. This is the same rule used for
trespassers. The question is whether, in the case of licensees, the
duty is imposed more readily.
It would be possible to say that a “should have known” test is
applied to both factors. Alternatively, it would be possible to say
that such a test is applied to one factor, but as to the other the
landowner must have actually known or had reason to know. The
Restatement says the defendant must either know or “have reason
to know” of the first factor, danger.43 This means that the
landowner who should have known of the danger,
464
but did not, would have no duty to a licensee whose presence

was known.44 Sometimes, however, courts say that the landowner
must make the premises “as safe as they appear to be,” a
statement that can be read abstractly to imply that the landowner
is responsible even if he did not actually know of the danger.45
As to the second factor, the licensee’s presence, the Restatement
makes no clear and explicit statement. Perhaps it is enough that
the presence of the licensee could be reasonably foreseen, that is,
that the landowner should have known the licensee was or might
be present. Some cases seem to take this view,46 while others seem
to require actual knowledge of the licensee’s presence.47 For
instance, in an Arkansas case, the owner knew that friends of farm
employees sometimes came to the farm and shared the employees’
work until their work day was done. Knowing that and also
knowing the dangers of specialized machinery, the landowner owed
a duty of reasonable warning to the licensee-visitors.48
Activities on the land. Courts have imposed duties of reasonable
care with respect to activities as distinct from mere conditions on
the land49 when the landowner should foresee the risk of harm.50
So if a landowner is engaged in active operations on the land, for
example by driving vehicles, operating cranes, or constructing
buildings, he must keep a reasonable lookout for licensees who
have permission to be present and must govern his operations by
the standards of reasonable care.51
The remaining negligence issue. The warning required in all
duty cases applies here: to establish a duty of care is not to prove
its breach. The landowner who is required to keep a reasonable
lookout is not necessarily required to keep a constant lookout for a
licensee who is unlikely to appear.52 Equally, if the landowner
reasonably believes that the licensee knows of the danger or would
discover the danger and protect herself, the landowner is not
negligent, although courts may express this notion by saying that
the landowner is under no duty of care with respect to such
dangers.53 This is not a question
465
of the licensee’s contributory negligence in failing to avoid the

danger, which is a matter entirely distinct from the question of the
landowner’s duty and breach. Courts typically speak as if the fact
that the danger is obvious or open is enough in itself to eliminate
any duty by the landowner to warn of the danger.54 However, the
fact that a danger is obvious is good, but not necessarily conclusive,
evidence that the licensee can be expected to avoid the danger
without a warning by the landowner.55
Entrants are in the invitee classification if they are either (a)
“public invitees” who are expressly or impliedly invited to enter the
land as a member of the public, or (b) “business invitees,” who are
invited to enter the land in connection with some business dealing
with the landowner or occupier.56 Landowners ordinarily owe a
duty of reasonable care to their invitees.57
An “invitation” is an essential element under both the public
invitee and business invitee tests, although it is not sufficient to
confer invitee status.58 A person who is on the land under an
official privilege—a firefighter, for example—is not an invitee at
all.59 The word “invitation” is itself a term of art. In few cases does
the invitee have a personal, formal, and express invitation. The
invitation is found in the fact that the premises are held open to
the public as in the case of retail stores, airports, and public parks,
or in the fact that the landowner has arranged for the plaintiff to
be on the land, as in the case of a contractor hired to haul out
garbage. Any conduct that communicates the idea that the
entrant’s presence is desired will do.60 On the other hand, the
landowner who merely permits a hunter to use his land has not
issued any invitation at all, even implicitly.
Perhaps the focus should be less on invitation than on the
underlying principle. The real point is that anyone who receives
implicit or explicit assurance of safety is entitled to the invitee
status and the reasonable care that goes with it.61 The public
invitee and business visitor categories only represent efforts to find
objective correlatives to this underlying principle.
466
Who is included in the invitee category. Customers and

prospective customers on the premises of any business open to sell
goods,62 provide services,63 entertainment64 or recreation65 are
easily invitees by any definition. So are employees,66 independent
contractors,67 and the employees of independent contractors68 who
have been expressly or impliedly invited to the land. So are people
who are invited to private portions of the premises, if they are
invited for potential economic benefit of the landowner.69 When
consistent with the purpose for which the invitation is implicitly or
explicitly issued, those who accompany the invitee are themselves
invitees.70 Visitors to invitees are also invitees in some cases. For
example, visitors to patients in a hospital71 and visitors to inmates
in a correctional institution72 are invitees, as are those who enter a
cemetery to visit a grave.73
When courts thought of invitees solely as “business visitors,” it
was hard to explain many of the actual decisions, which are now
entirely understandable on the ground that invitees include every
person on land open to the public, as long as his presence is
consistent with the public invitation. So you are an invitee in a
store at the airport even if you enter only to kill time between
flights and have no intention of buying anything.74 If you have
children in tow, they, too are invitees.75 If you are at the airport to
see a
467
friend off, you are still an invitee, and so is the photographer

taking pictures of deplaning passengers.76 It is no longer necessary
to justify such holdings with farfetched suggestions that the visitor
who buys nothing today might do so at some indefinite time in the
future. The public invitee category can cover these examples quite
easily, as well as the case in which you enter a public park or
national forest where no economic transaction is even possible.77
The tests also explain why salespersons calling at a residence
can be classified in different ways. A salesperson who comes
uninvited to your home is not an invitee, for she has no invitation
of any kind.78 The salesperson who comes in response to an
implicit or explicit invitation is a business invitee, for that person
has an invitation to be there and is dealing with you in a potential
economic exchange.79 Similarly, a delivery person who comes to
your door with a package, even though you did not order it, may be
a business invitee where the you had accepted such deliveries for
years, on a theory that such deliveries provide you with a material
benefit.80 Finally, the salesperson who enters a place open to the
public should qualify as a public invitee.
Scope of invitation. The scope of the invitation or assurance of
safety may be limited. For this reason, a person may be an invitee
on one portion of the premises but not on another.81 For instance,
the plaintiff at a shopping mall may be an invitee on the parking
lot, but not while taking a shortcut through the flower bed.82 And a
person may be an invitee at one time but not another.83 For
instance, a restaurant customer is an invitee when she parks and
retrieves her car during serving hours,84 but not when she leaves
her car there and returns for it after the restaurant is closed.85 The
nature of the invitation and its purposes, custom, and reasonable
expectations of the invitee are usually a clear guide. The layout of
the premises may also be instructive. A customer in search of a
public restroom on the premises is still an invitee if she reasonably
enters a storeroom by mistake.86 Courts have also held that an
invitation to enter for one purpose
468
may not carry with it an assurance of safety when the entrant

uses the land for an inconsistent purpose.87
General duties of care. The landowner owes to the invitee a non-
delegable88 duty of care to make conditions on the land reasonably
safe89 and to conduct his active operations with reasonable care for
the invitee whose presence is known or reasonably foreseeable.90
In addition, building codes may impose structural requirements,
and, under the usual rules,91 violation of a code’s safety provision
can establish negligence per se92 or at least furnish evidence of
negligence.93 Even apart from statute, reasonable care under the
circumstances sometimes requires an inspection of the premises
and active steps to make the premises safe.94 But sometimes
reasonable care does not suggest that inspection is needed. Where
conditions appear to be safe, the landowner is not negligent in
failing to inspect for dangers.95 In other cases, the landowner may
satisfy his duty of reasonable care by providing an adequate
warning of dangerous conditions.96 Under limited circumstances,
the landowner also owes a duty of care to protect the invitee from
other persons or from animals.97 Given the duty of reasonable care,
the invitee’s suit is an ordinary negligence case and the ordinary
rules of negligence apply, so that the
469
plaintiff must prove actual and proximate cause as well as

negligence by the defendant in creating or maintaining an
unreasonably dangerous condition.98
Slip-and-fall cases. Slip-and-fall cases and their variants99 are
quite common.100 The duty of reasonable care is routinely played
out in three ways:
(a) The defendant negligently creates the dangerous
condition or an unreasonable risk of it. Such a defendant
may be subjected to liability for injuries suffered in the
invitee’s fall. The clear cases are those in which the
defendant’s employees themselves create the condition, as
where a grocery clerk spills a slippery substance on the floor,
or the defendant negligently waxes the floor.101
(b) The landowner’s mode of operation is negligent, as
where he negligently markets goods in such a way that they
are likely to be dislodged by other customers with resulting
injury to the plaintiff.102 Once an inference of negligence
arises in these “mode of operation” cases, most courts shift
the burden of producing evidence of non-negligence to the
defendant.103
(c) Some unknown person creates a condition of danger,
by dropping a substance on the floor for example. The store
defendant is not negligent in creating the danger but may be
negligent in failing to inspect periodically for such
mishaps.104
470
In this last scenario, courts tend to say that if the substance has
been present for a long period of time, the trier can infer that the
store was negligent in failing to inspect or discover.105 California
has said that failure to inspect for a long time warrants an
inference that the substance has been present for a long time.106
Sometimes the reasoning in cases is so stylized that the results
look almost like a kind of strict liability.107 On the other hand,
courts usually refuse to apply res ipsa loquitur to slip and fall
cases,108 and if no evidence supports an inference that the
condition has been present for a substantial period, the jury has no
basis for concluding that the defendant was negligent.109
Traditional rule for obvious dangers. Following the First
Restatement, courts often said, and some still say, that the
landowner owed no duty to his invitees to make the premises safe
or to warn of dangers known or obvious to invitees.110 That was
equivalent to saying that if the danger was open or obvious, then
the defendant was under no duty at all, even if he could expect that
invitees would not learn enough to protect themselves. Some states
have held that where the injury to the invitee arises from a
condition on land, the plaintiff must prove that the landowner had
“superior knowledge” of the danger.111 When the danger is equally
obvious to both the entrant and the landowner, that fact will
obviously be unprovable.
Traditional rule for natural accumulations. Courts have also
sometimes said that the landowner was not liable to invitees for
injuries resulting from natural accumulations of snow or ice. But
some of the cases cited for this proposition seem to involve injuries
on the public sidewalk adjacent to the land rather than on the land
itself; others seem to be applications of the open-and-obvious
danger rule.112 The accumulations rule, as applied on the land
itself, would therefore presumably be modified when the open-and-
obvious danger rule is modified.113
471
The Restatement rule for obvious dangers. The Second

Restatement, in line with general negligence law, adopted a more
cautious view. It provided that when the allegedly dangerous
condition is open and obvious, the landowner is not liable to
invitees for harm from known or obvious dangers except where the
landowner should anticipate harm in spite of the knowledge or
obviousness.114 The Third Restatement is in accord, except it
extends this rule not only to invitees but to all entrants onto land,
except non-flagrant trespassers.115 Putting this rule other way
around, the landowner is subject to liability if he can foresee harm
in spite of the fact that the danger was obvious. In recent years,
this view has commanded substantial acceptance where it has been
expressly considered.116 Whether a defendant should have foreseen
the plaintiff’s encounter with a particular “obvious” hazard will
present a jury issue where reasonable people can differ.117
Basis for the Restatement rule. For the Restatement and its
adherents, the basis of the rule is that the landowner is not
negligent at all if he can foresee no harm, and that is the case if he
can reasonably believe that the invitee will (a) know or see the
danger and (b) avoid it.118 On the other hand, he is indeed
negligent if he can foresee that the plaintiff will encounter the
danger in spite of its obvious character and fails to take reasonable
steps to protect the plaintiff from that danger.119 As the Utah court
said, the old no-duty version of the open and obvious danger rule in
effect excused the defendant’s negligence, while the Restatement’s
rule defines it, yoking it firmly to the ordinary foreseeability
test.120
Where plaintiff’s encounter with obvious danger is foreseeable.
Landowners can foresee that the invitee will encounter an obvious
danger for several reasons. First, in some cases the plaintiff’s only
reasonable choice is to encounter the danger. A tenant in an
apartment building, for example, may be required to cross a floor
maintained by the
472
landlord that has become dangerously slippery from waxing, or

to cross ice on the steps in order to reach her apartment. Even if
she knows the danger, a decision to encounter it is more reasonable
than a decision to never enter her apartment. The plaintiff’s
decision to encounter a known danger will often be reasonable
when the plaintiff is exercising a right like the tenant’s right to
reach her own apartment through a common passageway, or the
right of a member of the public to use public land or to reach a
public utility.121 Similarly, the plaintiff’s decision to encounter a
known risk is sometimes reasonable when the plaintiff must take
the risk to fulfill an obligation or to carry out employment
obligations.122
A second kind of case in which the plaintiff’s encounter with
obvious danger is foreseeable is one in which the plaintiff is
foreseeably distracted,123 or acts under emergency or pressing
need. A grocery store owner who puts watermelons down in a
crowded aisle may be able to foresee that a distracted shopper will
take a step backward and fall.124 The operator of a pharmacy that
remains open in spite of ice covering its parking lot and entrance
must surely hope and foresee that people will attempt to enter, and
must surely foresee that one of them might be injured in a fall.125
In such cases, the result would turn on the plaintiff’s possible
contributory negligence, not on the defendant’s lack of duty.126
A third kind of case is that of the rescuer who attempts to save
people or property endangered by the defendant’s negligence. In
such cases, the rescuer almost always confronts an open and
obvious danger, so that the well-recognized liability to a rescuer127
could not be established if the open-and-obvious danger rule were
applied—as some defendants have argued. But the rule is not
applied in such cases, and the rescuer whose conduct is foreseeable
in facing an obvious danger remains a hero, not an outcast.128
Distinguishing contributory negligence. In spite of the relative
clarity of the Restatement, good analysis of obvious-danger cases is
prey to at least two levels of
473
confusion. One level of potential confusion arises because

evidence that a condition is open or obvious to observers is good
evidence about two distinct things. First it might suggest that the
plaintiff was chargeable with contributory negligence.129 Second, it
might suggest that the defendant was not negligent—he could
perhaps rely on the plaintiff to avoid obvious danger and thus
avoid injury.130 These two points are entirely different. In most
courts, if the jury concluded that the plaintiff was guilty of
contributory negligence in failing to avoid an obvious danger, the
result might be merely to reduce the damages award under the
rules of comparative negligence.131 If the jury found the defendant
not negligent on the ground that, since the plaintiff could be
expected to avoid the danger, harm was not foreseeable, the
plaintiff could not recover at all.
Case analysis vs. rule of law. Another level of potential
confusion in open and obvious danger cases arises because it is all
too easy to confuse a finding for the defendant on the facts of a
particular case with a rule of law for all cases. In some particular
cases, the obviousness of danger is compelling, so that the court
might take the case from the jury by directed verdict or summary
judgment.132 The court might conclude that the defendant was not
negligent at all because he could expect the plaintiff to avoid the
danger and thus avoid injury, and further that reasonable jurors
could not reach a contrary conclusion. Such a conclusion would be
plausible if, for example, the plaintiff injured herself by walking
into the checkout counter at a grocery store. Holding that the
particular defendant was not negligent would not be a rule of law
that an obvious danger always bars recovery, but rather an
analysis of the evidence in the particular case.
Invitees and Licensees
Children as well as adults are subject to the traditional entrant-
classification scheme in those states that still use it,133 and except
as explained below, their rights are determined by the
classification in the same way as adults’ rights.
474
When adults are classed as invitees, the children who

accompany them onto the land are properly categorized in the
same way unless the entrance of children is inconsistent with the
express or implied limits of the invitation.134 Children can of
course also be invitees in their own right, as where they enter a
retail store.135 The duty owed to child invitees is the same as that
owed the adult invitee, namely, the duty of reasonable care.136
However, what counts as reasonable care with a child invitee may
be different, since children may overlook dangers that adults would
avoid.137 This also means that what is open and obvious to an
adult may not be open an obvious to a child.138 Of course, some
dangers are so obvious that even a child can be expected to
recognize and avoid them, such as fire, water, and falling from
heights.139 Nonetheless, where a landowner knows that children
continue to encounter an open danger despite being warned, public
policy may impose a duty to take reasonable actions to prevent
injury.140
Children, like adults, may be licensees, as for example where
they are social guests or with adults who are social guests.141 In
such cases, they are ordinarily owed only the care owed to adult
licensees.142 However, where the defendant owes a duty of care to
child trespassers under the rules stated below, he owes the same
duty to child licensees.143 In addition to the limitation on duty
implied in the licensee category, some authority holds that with
children of tender years who are accompanied by parents,
responsibility for their safety shifts to the parents, at least if the
parents know of the danger.144 On the other hand, if the landowner
(or anyone else) has been entrusted with
475
and accepted responsibility for supervising a child, he owes a

duty of reasonable care to provide supervision regardless of the
child’s status on the land.145
Child Trespassers
The problem. Children may be and often are trespassers to
whom the landowner owes no more duties than he owes to adult
trespassers. But child trespassers are not for that reason alone
evil-doers or even negligent actors and they are almost always
more vulnerable to harm because they fail to understand danger or
its seriousness. Many of these trespassers are small children: a
three-year-old trespasser wanders into a neighbor’s backyard, falls
into the unfenced pool and drowns;146 a seven-year-old deliberately
enters a garbage dump to look for comic books and is horribly
burned when the crust gives way and he sinks into burning
embers.147
Contemporary general rule. If the landowner in such cases could
foresee that children might enter and be harmed because, given
their age and experience, they might fail to appreciate the danger,
and if the landowner could have avoided such serious risks with a
relatively small expense, courts today generally recognize a duty of
care to the child and liability for negligence.148 Where the
landowner owes such a duty to a trespassing child, he owes no less
to the child licensee or invitee.149 The child’s adult rescuer is given
the status of the child and comes under the same protection.150 The
child-trespasser rules are subject to some qualification or at least
explanation, and a few courts reject them altogether, treating the
child trespasser like any other.151
Origin of the special rule. The idea originated around 1875. A
seven-year-old child played on a revolving turntable, a heavy piece
of machinery used to rotate railroad engines. Caught between the
surface and the wall, he lost a leg. The railroad asserted that it
owed no duties to this trespasser. The Minnesota Court, noting
that the turntable appealed to the “natural instincts” of children
and at the same time was highly dangerous to them, argued that
the child was “induced” to use the turntable by its very
attractiveness. The court compared the allure of the turntable to
strong-scented meat
476
used to attract and trap dogs.152 For this reason the trespass
was to be forgiven and the child treated as an invitee.
“Attractive nuisance” vs. foreseeability. The earliest cases were
based on the theory that the child was lured to the land by some
special attraction like the railroad’s turntable. For this reason,
courts often called the special rule for child trespasses the
“attractive nuisance” doctrine. The idea that the child had to be
lured to the land by something attractive to children led Justice
Holmes to hold that the doctrine had no application unless the
child was attracted to the land by the very thing that injured
her.153 Technically, Holmes may not have been overruled,154 but in
any event his view is now usually rejected in mainstream tort
law.155 What is now required instead of allure is that a reasonable
landowner would know, have reason to know, or at least foresee,
that children are likely to trespass and because of their youth will
be at unreasonable risk for serious injury.156 For this reason,
“attractive nuisance” is no longer a good description of the doctrine.
Foreseeability vs. “reason to know.” The Second Restatement
says the landowner must know or have reason to know157 both that
child trespassers are likely, and that a condition on the land may
endanger them. That seems to be an obscure way of saying that the
landowner need not investigate to discover the condition or the
possibility of trespassers.158 If the point were reformulated to say
that the landowner owes a duty of reasonable care to foreseeable
child trespassers, the outcome of cases would ordinarily be the
same, because ordinary care would not require investigation about
the prospect of trespassers unless some fact suggested the need to
inspect or investigate.
Yet a small effort toward investigation or inspection is
warranted in some cases. It would not be fearsomely burdensome
to hold that if a railroad is going to install a turntable it might
inquire whether children play nearby. If the Restatement’s formula
rejects liability on such facts, it is questionable at best. If the
formula accepts liability on such facts, it would be simpler to say
that the landowner owes a duty of reasonable
477
care under the circumstances.159 Some of the decisions approve

the Restatement’s six-paragraph rule in toto without necessarily
focusing on the “reason to know” formula.160 Other courts have
definitely used a should know or foreseeability formulation in place
of the reason to know phrase.161 Sometimes the same court will use
both terms,162 a fact that may suggest a minuscule difference in
practice between the two formulations.
Harmful potential. The attractive nuisance doctrine is largely
an application of ordinary negligence law. This means in part that
the defendant who is under a duty of care is nevertheless not liable
for harms done to anyone on his land, trespasser or not, unless he
fails to act with ordinary care. If, on the facts, a reasonable person
would perceive no unreasonable risk, then the landowner is not
negligent and not liable. The landowner must be on notice of (or be
able, as a reasonable person, to foresee) both the dangerous
condition163 on the land and the likelihood of child trespassers164
who because of their youth and inexperience will not protect
themselves.165
Balance of risks and utilities. Even if harm is foreseeable, the
risk may be small compared with the cost of removing it. The
ordinary negligence rule invites juries to compare the risks of
injury with the utility to the defendant of keeping the risks as they
are. So if the cost or burden of eliminating or reducing the risk is
great, and the foreseeable risk is small, the defendant is not
negligent and not liable at all. The same rule is applied in the
trespassing child case.166 A large rotating auger that could
dismember a human being may have great utility in unloading a
railroad car, but at
478
relatively small cost, it can be covered to protect children, so a

jury could appropriately find negligence if the landowner could
foresee that children may play nearby.167
§ 20.9 Changing Duties and Categories: Extending
the Duty of Reasonable Care to Entrants
Other than Invitees
A number of state courts have now held that a duty of
reasonable care is owed not only to invitees, but also to licensees,
while retaining a lesser duty with respect to trespassers.168
Another group of courts has applied the reasonable care standard
to all entrants, essentially abolishing the categories entirely.169
The Third Restatement, admittedly without stating either a
majority or a plurality rule on the topic, suggests a duty of
reasonable care to all entrants on land with the exception of
“flagrant trespassers.”170 Continued reform at the state level
seems probable, while uniformity seems largely out of reach even
among states that respond favorably to the Third Restatement’s
moderate reform invitation.
Just how earth-shaking is this reform? Perhaps less than
appears at first glance. Reasonable care does not require actions to
protect or warn visitors whose coming is not known or reasonably
foreseeable.171 Since trespassers and licensees are often
unforeseeable visitors, the standard of reasonable care under the
circumstances will not often result in any new liability, even where
a duty of reasonable care is owed to all entrants. Courts sometimes
say explicitly that the status of the visitor remains relevant on the
issue of the foreseeability of the harm or the landowner’s
reasonable expectations.172 That is a shorthand expression; it is
not the status itself that is relevant but some of the facts that
establish status.173
479

Statutory Protections
All or virtually all states have enacted recreational use
statutes.174 The gist of these statutes is to immunize landowners or
occupiers from liability for most non-willful harms to persons who
are permitted to use the land for recreational purposes without a
fee or charge, or who pay relatively small charges for the use of the
land.175 The stated purpose of the statutes is to encourage
landowners to open private lands for recreational use in an
increasingly crowded society with inadequate public recreational
space.176 This purpose is sometimes determinative in construing
the statute. Some states tack on various additional provisions, such
as special protections for farmer-landowners177 or educational
uses.178
The statutes are couched in stringent terms. For instance, they
may say that the permitted but non-paying user has neither
invitee nor licensee status179 or that he is to be treated as a
trespasser.180 The statutes commonly provide that no duty of care
is owed to make the premises safe for non-paying recreational
users. Such provisions have the effect of restoring the common-law
trespasser or licensee categories. They sometimes grant
landowners even broader protections than they would get under
contemporary common law categories. That is certainly the case
with the recreational user who is on land open to the public. The
common law rule would treat such a person as a public invitee, to
whom the landowner owes a duty of reasonable care.181 Under the
recreational use statute, however, the landowner owes only the
duty to avoid willful or malicious injury,182 or sometimes gross
negligence.183 Some statutes provide that the owner owes
480
no duty to warn as to dangerous activities,184 which could

conceivably mean that the owner is not liable for an activity
negligently carried on. Others, however, track the traditional
premises liability rules in protecting against liability for conditions
on the land but not necessarily protecting against liability for
active negligence.185
Known dangers. Some of the statutes affirmatively provide that
liability may be imposed when the landowner actually knows of a
danger.186 However, other statutes make no such provision. Most
do not directly recognize the common law distinctions between
known and unknown dangers, between known and unknown users,
or between natural and artificial conditions. Such statutes raise
the possibility that the landowner would be immune from liability
even when he fails to warn a known user who is about to encounter
a known danger.187 It seems quite possible that such statutes
would actually leave the permissive land user worse off than she
would be under the contemporary liberal rules for liability to
known or foreseeable trespassers.
Attractive nuisance. The statutes may also relieve the
landowner of common law duties recognized under the attractive
nuisance or child-trespasser rules. Although some statutes
specifically recognize the ongoing validity of the attractive
nuisance rules,188 others say nothing at all about the child
trespasser. When the statute says nothing on the subject, some
courts have read in an exception so that the landowner remains
responsible for his negligent harm to foreseeable child trespassers
who could not be expected to discover the dangers on the land for
themselves.189 But some courts have held that the recreational use
statutes, giving landowners special benefits without exception, in
effect supersede the attractive nuisance rules.190 This puts the
child who is subjected to foreseeable dangers in a worse position
than many adult trespassers under the common law rules.191
Statutory Coverage
Owners; recreational use. Much of the litigation under
recreational use statutes deals with their coverage. The statutes do
not apply at all unless the defendant is an owner or occupant as
defined in the statute.192 Nor do they apply when the plaintiff’s use
of the land is not for a recreational purpose as defined in the
statute.193 Some statutes
481
define recreational purpose in general terms,194 but others

present a catalog of recreational activities that might include
skateboarding, spelunking, parachuting, and many other specific
activities.195 Where the statute is not precisely determinative,
courts may characterize the plaintiff’s use broadly in some cases
but quite narrowly in others.196
Open to the public. The statutes’ stated purpose is to encourage
use of private land for recreation.197 However, the landowner need
take no steps to qualify for the special protections of the statute.
The statutes do not require the landowner to dedicate an easement
for public use, to register the land, or even to inform the public by
signs or otherwise that it is available. Even the statutes that
require that the land be open for public recreational use198 do not
require the landowner to mention the fact to anyone.199
Some of the statutes do not even require that the land be open
to the public, only that the landowner permit or invite a person to
use the land.200 Such statutes may protect the landowner even if
he has tried to exclude all users by erecting barriers and posting
No Trespassing signs.201 In consequence, the statutes sometimes
reduce the landowner’s duty to something considerably less than
reasonable care even when the landowner withholds the
recreational benefits the statute purports to seek.202 Some
482
authority goes the other way, withholding the statutory

protections when the landowner in fact excludes users.203 That
result seems compelled where the statute actually requires that
the land be opened to the public.
Suitability for recreation. The statutes do not by their terms
require that the land be suitable for recreation, although some
courts have added that requirement.204 Where courts have not
done so, the landowner gets the protection of the statute even if the
land is not suited for recreation. In a California case, the plaintiff
child was sitting to one side while other children played on stacked
pipes. The pipes dislodged and fell on the child. The court thought
that the child was a recreational user, even if she was not engaged
in playing on the pipes and even if the land was not suited to
recreation.205
Public land, urban land. Given a purpose to encourage owners
to open private lands to the public for recreation, it seems unlikely
that the statute would apply to lands already owned by the public,
to lands such as parks that are already open to the public, or
indeed to urban land generally. Some statutes specifically answer
one or more of these questions, for example, by granting the
statutory immunities to urban206 and public lands207 or sometimes
by limiting the statutory favors to private or rural owners.208
When the statute is not explicit, courts have divided on such
issues. Most courts appear to give public entities209 and urban
landowners210 the benefit of the statutory protections, but some
hold that the statute, intended to encourage opening of private
lands, could hardly have been meant to apply to municipalities or
other governmental
483
entities.211 Likewise, a few apply the statute only to rural or
undeveloped lands.212 Independent of the recreational use statute,
it is of course possible that governmental immunity will immunize
a public entity from all liability.213
B. DUTIES TO THOSE OUTSIDE THE PREMISES
Courts traditionally have drawn a major distinction between
natural and artificial conditions on the land. The usual statement
is that occupiers of land are under no duty to use care to alter the
land’s natural condition, even when those conditions are dangerous
to persons on public ways.214 So for example, if the plaintiff falls
because of natural precipitation on the land, unaffected by
negligent human actions,215 or if naturally occurring surface
waters216 or insects escape217 from the land and cause harm, the
landowner is responsible only if his affirmative acts contributed to
those evils.
Even more clearly, the landowner ordinarily has no obligation
to remove or make safe naturally occurring snow or ice from
sidewalks adjacent to but not a part of his land,218 although he
may be subject to liability for actively making matters worse,219 for
example by artificially and unreasonably draining harmful waters
from his own land. Even beginning to clear snow and ice may not
produce liability where a plaintiff slips on the remaining natural
accumulation.220
484
It follows that the landowner need not alter existing conditions

on roads or lands around his own, even to make entrance to his
own business safer for customers.221 The Third Restatement places
commercial landowners under a duty of reasonable care for all
natural conditions,222 on the rationale that commercial land “is
likely to be in proximity to other property or persons” and thus
“will on the whole pose a greater risk to persons off the land than
will natural conditions on residential or unimproved land.”223
Some courts have used this distinction to impose duties on owners
of commercial property that are not imposed on private residential
landowners.224
Falling trees. A number of cases have arisen in which naturally
growing225 trees on the defendant’s land226 have become rotten
and have fallen upon persons using the adjacent highway or
neighboring land. Many courts apply the urban-rural distinction in
such cases. In this view, the landowner who is not on notice that
the tree is dangerous is under no duty to use care with respect to
natural rural trees but must use care with respect to natural urban
trees.227 This view turns the courts’ attention to the classification
of lands as urban or rural rather than to an adjudication of actual
negligence.228 The debate about falling trees and limbs is mostly
about a duty of inspection. If the landowner actually knows that a
tree has become a danger to those on the highway, he is obliged to
use reasonable care to deal with the risk whether he is urban,
rural, or in-between.229 The debate itself is not always on target,
however, because a duty of reasonable care would not invariably
require inspection in any event.
Vegetation obscuring vision of highway users. In the case of
vegetation on the land that obscures highway dangers and thus
indirectly contributes to a collision and injury, awareness of risk
has not been a serious consideration. A number of courts have
simply said the landowner has no duty to cut vegetation that is
dangerous as an impediment to highway users’ clear vision.230 The
other view is that no reason counsels departure from
485
the duty of ordinary care, so that the question of the

landowner’s negligence will go to the jury if reasonable people can
differ.231
§ 20.12 Active Conduct and Artificial Conditions on
the Land
Nuisance aside,232 the occupier of land must use reasonable
care for the safety of those outside the land to prevent direct harm
resulting from his affirmative activities on the land.233 For
instance, if he negligently allows building materials to fall on
persons outside the land, he is subject to liability.234 The same
applies to those persons such as building contractors who are on
the land in the right of an occupier. Similarly, except under open-
range rules, the owner must use care to prevent horses or cattle
from escaping onto the highway where they might cause
collisions.235 The idea also justifies liability for negligently
allowing workers on the land to carry dangerous substances like
asbestos dust off the land to the injury of others.236 The landowner
who is “present” is under a duty to use reasonable care to control
others on his land to prevent them from causing harm to
outsiders.237
Artificial conditions on the land: general rule. The occupier
must also use care with respect to artificial conditions on the land
that risk injury to those outside it. If structures on his land cause
water to accumulate on the walk, he must use reasonable care to
avoid injury to pedestrians who may slip on the ice it forms.238
Even trees planted in front of the landowner’s property may be
seen as an artificial condition, placing the landowner under a duty
to exercise reasonable care to prevent their branches, roots or
trunks from harming pedestrians on the sidewalk.239 The
landowner who makes some special use of an adjacent public way
may be subject to liability for negligence, certainly in creating
486
the condition240 and perhaps even for failure to maintain the

“special use” area with reasonable safety.241 When legitimate
activity on the land does not itself cause immediate physical harm
but merely distracts motorists on nearby highways with resulting
collisions and injuries, courts may assign the entire responsibility
to the motorists and none to the landowner.242
Reasonable care owed to foreseeable strays from the highway.
The land occupier owes not only a duty of reasonable care to
protect those on the public way from activities and artificial
conditions on his land, but also a duty of care to those who
foreseeably stray from the road onto the land itself and are injured
by a condition such as an excavation that was put there after the
road was built. Many courts say that the motorist’s deviation from
the roadway is foreseeable where it is a normal incident of
travel.243 The duty of care is owed if the landowner should foresee
that a highway user would inadvertently enter the land even if she
is exercising due care.244
“Reasonably careful” travelers and foreseeable deviations. The
rule of foreseeability to straying travelers says is that the risk
must be one to travelers who are reasonably careful.245 It does not
say that the plaintiff must herself be without fault in the
particular instance if the risk would also be one to reasonably
careful people. The fault of the actual plaintiff would thus become
a matter of contributory negligence, not a matter of the defendant’s
duty.246 It is easy to miss the distinction, and some authority holds
that the defendant is under no duty to one who is actually at fault,
even if the land’s condition was a threat to persons who were
faultless as well.247 But no matter what, harm to someone must be
foreseeable and on that point the danger’s distance from the road is
highly relevant. A pile of construction materials at the road’s edge
is a great danger even when it is obvious, while a hidden
excavation 100 yards from the road is not.248
The utility pole cases. A good number of cases involve motorists
straying from the highway and hitting utility poles. Utility poles
near the road are certainly obvious hazards, but it is often
reasonably foreseeable that a motorist might hit one.249 In many
487
cases, the pole has been placed within the highway right of way,
although at some distance from the paved portion of the highway.
Distance from the road is a factor in these cases,250 although many
courts are reluctant to impose liability even where the distance is
very small.251 The pole cases, as distinct from most excavation
cases, may be affected by governmental regulations,252 and by
public policy considerations against imposing liability on utility
companies.253
C. DUTIES OF VENDORS AND LESSORS
Once the landowner sells the land or leases it to a tenant, his
duties to make conditions on the land reasonably safe are limited
or nonexistent.254 The reasons for and effects of the limitation are
not like those in landowner cases already covered. In other
landowner cases, the question was whether anyone owed a duty of
any kind. In cases of vendors and landlords, however, the question
is not so much whether a duty is owed but who owes it. It is not the
existence of responsibility but the allocation of it. Subject to some
qualifications, the traditional common law regarded the transfer of
land title as a shift of responsibility255 for conditions that might
cause physical harm to others on the land.
Once the purchaser of land takes title and possession, he
becomes responsible for dangers to himself or others on the land;
and correspondingly the vendor is freed from responsibility.256 If
the vendor knew of a danger on the land and concealed it, he would
remain responsible for harms resulting after transfer to the
purchaser, but then only until the purchaser discovered the danger
or had reason to know of it, or perhaps until
488
the purchaser has time to make it reasonably safe.257 The

vendor would also escape liability if the purchaser knew of the
danger or had reason to know of it.
When the condition creates a danger which causes harms to
persons outside the land, the vendor remains responsible for his
negligence in creating or maintaining the condition, but again the
responsibility would terminate when the purchaser discovers the
danger and perhaps until he has reasonable opportunity to make it
reasonably safe.258
Relevance of the common law framework. The traditional
common law duties of landlords259 may be modified in some
instances when the landlord is charged with negligence in failing to
protect a tenant from an attacker, or when the landlord is charged
with breaching a “warranty” of habitability. The duty to protect the
plaintiff from others is a large subject not limited to landlords and
it is considered in another chapter.260 The so-called warranty of
habitability is considered in the next section. This modification
may require repairs by a landlord that would not be required by
the common law rules. On the other hand, some common law rules
will require an inspection that would not be required under the
warranty of habitability. Further, the warranty of habitability does
not apply to all cases. Consequently, the common law rules remain
important not only as the starting place for the habitability
warranty but also because in a number of instances they are
controlling.
Responsibility shifted to tenant. Under the common law with
respect to dangerous conditions of leased premises, lessors
ordinarily owe the same duties to the tenant and the tenant’s
guests or others on the premises with the tenant’s consent.261
Under the traditional approach, that is frequently no duty at all.
The traditional common law viewed a lease as a sale of land for a
period of time. Consequently, when the landowner leased land to a
tenant, the tenant was in the role of a land buyer. Like other land
buyers, the tenant became responsible for the harms caused by
negligently created or maintained conditions of the leased
premises; concomitantly, the landlord ceased to be responsible. In
the absence of an exception, the landlord was not legally
responsible for conditions that arose on the land after he leased
it262 or even for those that existed at the time of the lease.263
489
Concealed or undisclosed conditions. Under an exception to the

general common law rule, the landlord remains liable for harms
done by an unreasonably dangerous condition264 of which he knew
or had reason to know and which he concealed or failed to disclose,
provided it is also a condition that the tenant was not likely to
discover and does not in fact discover.265 The proviso is often
expressed by saying that the landlord’s responsibility for conditions
existing at the time of the lease extends only to latent defects, not
patent ones.266 Once the tenant discovers the danger and had
opportunity to remedy it, the landlord’s responsibility for
concealment terminates; perhaps in some cases it terminates as
soon as the tenant should have discovered the danger and taken
precautions.267
Contract to repair. By common law, the landlord is responsible
for unreasonably dangerous conditions if he has contracted to
repair them and negligently fails to do so after he knows or should
know of the danger.268 At one time this was viewed as a purely
contractual matter, so that the landlord would be liable for the cost
of making repairs or some similar measure of damages but would
not be liable for the injury caused by the disrepair.269 Today,
however, the landlord’s contract to repair is treated as creating a
duty of reasonable care as well.270 If he negligently fails to repair
an unreasonably dangerous condition, he becomes liable for
negligence, so that he is liable for the harms caused by disrepair as
well as for the cost of bringing the premises up to the promised
standard.271 Since the landlord is liable only for a negligent failure
to comply with the contractual duty, he is not responsible for
repairs under this exception unless he is put on notice that they
are needed and has a reasonable opportunity to make them.272
490
Repairs negligently made. Even if not contractually obliged to

make repairs, the landlord is under a common law duty to use
reasonable care when he voluntarily makes repairs on the leased
premises after the tenant has taken possession.273 He is thus
subject to liability for actual harm if he negligently repairs a
condition so that it was more dangerous, provided the tenant
neither knows nor should have known of the increased danger.274
The condition might be more dangerous either because alterations
made it more infirm than before275 or because the purported
alterations gave an appearance of safety upon which the tenant
relied.276
Land leased for public admission. The lessor who leases the
premises for admission of the public owes a duty of reasonable care
to discover dangers to the public and to correct them if he has
reason to think that the lessee will admit the public before putting
the premises in reasonably safe condition.277 Even when this rule
applies, it does not impose strict liability; the lessor’s duty is to
exercise reasonable care, no more.278
Portions of premises over which lessor retains control. In many
instances, the lessor retains control over some portion of the
premises that various tenants have a right to use. For instance, the
landlord controls halls, stairways, and sidewalks that are part of
an apartment building or complex of buildings. At the same time,
those portions of the premises are intended for the tenants’ use. As
to such portions, the lessor owes a duty of reasonable care to make
the premises safe for the benefit of the tenants and others lawfully
upon the land.279 Reasonable care will require inspection from time
to time and reasonable effort to make dangerous situations safe.
The landlord must usually have knowledge or constructive
knowledge of the defect,280 but the tenant’s actual knowledge of the
danger does not relieve the lessor of a duty of care. The tenant’s
property rights—to enter her apartment, for example, even if the
only stairs to it are in dangerous condition—are trumps in this
instance.
The rules just discussed are often referred to as the common
passageway rules. However, the point is not that tenants are
entitled to use the premises but that the landlord has retained
control. For that reason, similar rules apply to other parts of the
land that are not intended for the tenants’ use but that must be
safe if the leased
491
premises are to be safe.281 For example, the lessor must not

negligently allow the roof to collapse282 or wiring within the walls
to become a fire hazard.283 So far as a window’s safety depends
upon fittings installed outside the building rather than in the lease
premises themselves, the landlord may be in control and hence owe
a duty of care.284
A reasonable person standard. Some courts have dropped these
special rules limiting landlord liability and have substituted a rule
of ordinary care instead.285 Wisconsin, applying this approach, has
held that once a landlord learns that paint is peeling in premises
constructed before lead paint was banned, he is under a duty to
test for lead paint and take appropriate steps to prevent its harm
to a tenant’s child.286
Most states, by statute or judicial decision, have now recognized
an implied warranty of habitability in residential leases,287 but not
commercial ones.288 Courts say that by leasing the property, the
lessor implicitly guarantees that there are no defects, or at least no
latent defects, and no housing law violations in facilities vital to
the use of the premises, and, in many states, that essential
features will remain in such condition during the lease, and that it
will remain “habitable.”289 A number of courts take the position
that the warranty cannot be “waived” except perhaps in the case of
a single-family dwelling.290
Strict liability rejected. The implied warranty originally served
to give the tenant leverage to insist upon repairs. The tenant
might, for example, withhold rent or make repairs and deduct the
cost from her rental obligations. Yet the language of implied
492
warranty, long associated with strict liability, suggested that

the landlord would be liable without fault for personal injuries
resulting from dangers on the leased premises. As courts began to
consider the implied warranty theory in personal injury claims,
however, it has turned out that the landlord was not strictly liable
at all.291 The “warranty” requires only that the landlord keep the
premises in reasonable repair when the landlord knows or should
know of the defect.292 The warranty is not a warranty that the
lessor has implicitly made, but rather a rule of law imposed by the
court.293
Statutes. Statutes or ordinances often establish a warranty of
habitability or some specific requirement for safety and
habitability of the premises, for example, by prohibiting exposed
lead paint. Courts have held that these statutes do not impose
strict liability, but do impose a duty of reasonable care. Sometimes
courts make this point by saying that the landlord’s obligation
arises only when he has notice of the defect, or when he should
have discovered the defect by reasonable care.294 This means that
although negligence in some form is required in order to establish
liability, actual notice of the defect is not always necessary.
________________________________
1 Some courts subdivide the traditional categories. E.g., Ryals v.
U.S. Steel Corp., 562 So.2d 192 (Ala. 1990) (“mere” trespassers and those
who enter with intent to commit a crime); Baltimore Gas & Elec. Co. v.
Flippo, 348 Md. 680, 705 A.2d 1144 (1998) (noting licensee by invitation
and bare licensee subcategories). The Restatement Third subdivides the
trespasser category into “flagrant” and non-flagrant, with a lesser dutiy of
care owed only to the former. See Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 52(a) & cmt. a (2012).
2 Persons in actual occupancy of land and exercising control over it,
as well as members of the possessor’s household, may take advantage of
these limited-duty rules. See Restatement Second of Torts §§ 328E, 382
(1965).
3 See § 20.9.
4 Under some circumstances, excluding some children. See § 20.8.
5 Copeland v. Baltimore & Ohio R. Co., 416 A.2d 1 (D.C. 1980); cf.
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312,
662 N.E.2d 287 (1996) (man who was invitee on train platform because
either a trespasser or a licensee when he fell or was pushed by criminals
onto the tracks). Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136,
10 A.2d 576 (1940) (man who fell on tracks was treated as if he were a
trespasser).
6 Handy v. Nejam, 111 So.3d 610 (Miss. 2013). An entrant’s status
may pose a difficult issue of fact under these circumstances. E.g., Boyrie v.
E & G Property Services, 58 A.3d 475 (D.C. 2013).
7 This idea is sometimes expressed in the saying that trespassers
take the land at their own risk and as they find it. See Gaboury v. Ireland
Road Grace Brethern, Inc., 446 N.E.2d 1310 (Ind. 1983).
8 E.g., Ryals v. U.S. Steel Corp., 562 So.2d 192 (Ala. 1990);
Alexander v. Medical Assocs. Clinic, 646 N.W.2d 74 (Iowa 2002); Taylor v.
Mississippian Ry., Inc., 826 So.2d 742 (Miss. 2002) (wanton injury, which
requires “conscious disregard of a known and serious danger”).
9 See, e.g., O’Guin v. Bingham County, 142 Idaho 49, 122 P.3d 308
(2005) (statute requiring landfills to bar access by unauthorized persons
construed to impose a duty of reasonable care to trespassers).
10 See § 11.1 & 11.2.
11 See Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1
(1975) (unless he is in fact on the premises for illegal purposes). Some
states provide landowners an immunity from claims by persons injured in
the act of committing a felony. See Cal. Civ. Code § 847.
12 See Aluminum Company of American v. Guthrie, 303 Ark. 177,
793 S.W.2d 785 (1990) (duty “to exercise ordinary care under the
circumstances to avoid injury to him after discovering his peril”); Lee v.
Chicago Transit Authority, 152 Ill.2d 432, 605 N.E.2d 493, 178 Ill.Dec. 699
(1992).
13 Restatement Second of Torts §§ 337 & 338 (1965). The Third
Restatement, in a comment, is largely in accord on this point, requiring
that a landowner be “aware of the existence and plight of a flagrant
trespasser” before a duty of reasonable care arises. Restatement Third of
Torts (Liability for Physical and Emotional Harm) § 52(b), cmt. g (2012).
14 McVicar v. W.R. Arthur & Co., 312 S.W.2d 805 (Mo. 1958).
15 Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136, 10 A.2d
576 (1940) (“[I]t is wanton negligence, within the meaning of the law, to
fail to use ordinary and reasonable care to avoid injury to a trespasser
after his presence has been ascertained.”); see Ryals v. U.S. Steel Corp.,
562 So.2d 192 (Ala. 1990) (“Wantonness may arise after discovery of actual
peril, by conscious failure to use preventive means at hand.”).
16 Pridgen v. Boston Housing Authority, 364 Mass. 696, 308 N.E.2d
467, 70 A.L.R.3d 1106 (1974). Distinguish Rhodes v. Illinois Cent. Gulf
R.R., 172 Ill.2d 213, 665 N.E.2d 1260, 216 Ill.Dec. 703 (1996) (injured
intoxicated person on premises, but injury did not result from landowner’s
premises or acts, no duty). Liability, if any, is of course limited to harms
resulting from the landowner’s negligent failure to provide assistance.
17 See § 25.3.
19 Restatement Second of Torts § 12 (1965) defines “reason to know”
to mean that the actor had information that would lead a reasonable
person to infer the existence of the fact in issue. This is definitely not the
same as recognizing a risk or probability that the fact exists.”
20 E.g., Webster v. Culbertson, 158 Ariz. 159, 761 P.2d 1063 (1988)
(relying in part on Restatement Second of Torts § 337 (1965) as to known
trespassers, but applying it, in line with § 335 to a case of a trespasser who
was merely foreseeable). Accord, Lee v. Chicago Transit Authority, 152 Ill.
2d 432, 605 N.E.2d 493, 178 Ill. Dec. 699 (1992) (man electrocuted on
“third rail”; foreseeability, semble, is equivalent to reason to know; it is not
necessary to show that the defendant foresaw anyone “about” to encounter
danger).
21 Seeholzer v. Kellstone, Inc., 80 Ohio App.3d 726, 610 N.E.2d 594
(1992).
22 Restatement Second of Torts § 330 (1965). Those privileged to be
on the land for reasons other than the occupier’s consent—notably
firefighters and police officers—do not fit this definition. See Chapter 24.
23 Porto v. Carlyle Plaza, Inc., 971 So.2d 940 (Fla. Dist. Ct. App.
2007); Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d
510 (2001); Vogt v. Murraywood Swim and Racquet Club, 357 S.C. 506,
593 S.E.2d 617 (2004).
24 See Johnson v. Investment Co. of the South, LLC, 869 So.2d 1156
(Ala. Civ. App. 2003) (former tenant injured while moving out of her
apartment was a licensee, not an invitee, because her moving out did not
confer any material or commercial benefit on the landowner); Slavin v.
Plumbers & Steamfitters Local 29, 91 Ark. App. 43, 207 S.W.3d 586 (2005)
(union member who was injured doing volunteer maintenance work at
union hall was a licensee; land not open to the public, and plaintiff was
“really there for his own benefit” given the unique nature of unions);
Hudson v. Courtesy Motors, Inc., 794 So.2d 999 (Miss. 2001) (person who
came on defendant’s car lot, not as a potential customer but rather to see
an independent seller, was not an invitee of the defendant).
25 See § 20.6.
26 Chapman v. Chapman, 147 Idaho 756, 215 P.3d 476 (2009); Carter
v. Kinney, 896 S.W.2d 926 (Mo. 1995); Parker v. Rogers, 176 N.J. 491, 825
A.2d 1128 (2003).
27 Douglas v. Bergland, 216 Mich. 380, 185 N.W.2d 819 (1921)
(fisherman); Waller v. Smith, 116 Wash. 645, 200 P. 95 (1921) (hunter),
overruled on other grounds, Laudermilk v. Carpenter, 78 Wash.2d 92, 457
P.2d 1024 (1969).
28 French v. Sunburst Properties, 521 N.E.2d 1355 (Ind. App. 1988).
29 Cochran v. Burger King Corp., 937 S.W.2d 358 (Mo. App. 1996)
(“gratuitous licensee”).
30 E.g., Malatesta v. Lowry, 130 So.2d 785 (1961); Stacy v. Shapiro,
212 A.D. 723, 209 N.Y.S. 305 (1925).
31 Perry v. Williamson, 824 S.W.2d 869 (Ky. 1992); Singleton v.
Jackson, 85 Wash.App. 835, 935 P.2d 644 (1997) (Jehovah’s Witness, on
premises to make “religious solicitation,” was implicitly permitted to make
contact by way of front door, but was not an invitee).
32 See Reilly v. Spiegelhalter, 100 N.J. Super. 276, 241 A.2d 665
(1968) (conceded to be at least a licensee); Singleton v. Jackson, 85
Wash.App. 835, 935 P.2d 644 (1997) (“religious solicitation”).
33 Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); but cf.
Pinnell v. Bates, 838 So.2d 198 (Miss. 2002) (guest helping host unpack
items in new home may have been an invitee; issue of fact for jury).
34 Zuther v. Schild, 224 Kan. 528, 581 P.2d 385 (1978). The
classification in Zuther is now obsolete in Kansas with its adoption of a
general reasonable care standard. Jones v. Hansen, 254 Kan. 499, 867
P.2d 303 (1994). See § 20.9.
35 Carter v. Kinney, 896 S.W.2d 926 (Mo. 1995).
36 See Reicheneker v. Reicheneker, 264 Neb. 682, 651 N.W.2d 224
(2002) (grandmother babysitting three-year-old without pay because she
enjoyed spending time with him, not an invitee).
37 E.g., Waddell v. New River Co., 141 W.Va. 880, 93 S.E.2d 473
(1956).
38 See, e.g., Vogt v. Murraywood Swim and Racquet Club, 357 S.C.
506, 593 S.E.2d 617 (2004) (guest of club member was a licensee).
39 E.g., Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004);
Illinois Central R. v. White, 610 So.2d 308, 316 (Miss. 1992) (“The duty
owed to a licensee and trespasser is the same, i.e., not to willfully or
wantonly injure him.”).
40 E.g., Furstein v. Hill, 218 Conn. 610, 590 A.2d 939 (1991).
41 See Chapman v. Chapman, 147 Idaho 756, 215 P.3d 476 (2009);
Illinois Central R. v. White, 610 So.2d 308 (Miss. 1992). As with
trespassers, courts sometimes say that it is willful or wanton not to use
reasonable care after the licensee’s presence is or should be known. Cooper
v. Corporate Property Investors, 220 Ga.App. 889, 470 S.E.2d 689 (1996).
As applied to leased premises, the landlord and tenant who know of the
dangerous condition both owe a duty to warn the tenant’s social guest.
Rittenour v. Gibson, 656 N.W.2d 691 (N.D. 2003).
42 See § 20.3.
44 See Parks v. Rogers, 176 N.J. 491, 825 A.2d 1128 (2003) (“the
social guest is at least entitled to the same knowledge possessed by the
host”).
45 Holzheimer v. Johannsen, 125 Idaho 397, 871 P.2d 814 (1994) (“A
landowner is only required to share with the licensee knowledge of
dangerous conditions or activities on the land.”); Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky.App. 1996) (“A possessor of land owes a licensee the
duty of reasonable care either to make the land as safe as it appears, or to
disclose the fact that it is as dangerous as he knows it to be.”).
46 Cooper v. Corporate Property Investors, 220 Ga.App. 889, 891, 470
S.E.2d 689, 691 (1996) (“[A]s to a licensee, ordinary care and diligence
must be used to prevent injuring him after his presence is known or
reasonably should be anticipated.”).
47 See Nunez v. Spino, 14 So.3d 82 (Miss. App. 2009).
48 Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992).
49 Morin v. Bell Court Condominium Ass’n, 223 Conn. 323, 612 A.2d
1197 (1992); Lipham v. Federated Dep’t Stores, Inc., 263 Ga. 865, 440
S.E.2d 193 (1994) (host negligently bumped into guest); Hoffman v.
Planters Gin Co., 358 So.2d 1008 (Miss. 1978) (plaintiff’s leg amputated by
operating auger in a cotton gin).
50 E.g., Saucier v. Biloxi Regional Medical Center, 708 So.2d 1351
(Miss. 1998).
51 Jeffries v. Potomac Development Corp., 822 F.2d 87 (D.C. Cir.
1987) (licensee by invitation, duty of reasonable care as to affirmative
acts); Ragnone v. Portland School Dist. No. 1J, 291 Or. 617, 633 P.2d 1287
(1981) (“As to activities on the land, the occupier has a duty to exercise
reasonable care for the protection of a licensee.”).
52 Cf. Lane v. Gilbert Const. Co., 383 S.C. 590, 681 S.E.2d 879 (2009)
(duty owed to licensee includes using reasonable care to discover the
licensee).
53 Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Dorr v. Big
Creek Wood Products, Inc., 84 Wash.App. 420, 927 P.2d 1148 (1996); see
Restatement Second of Torts §§ 341 to 342 (1965). Section 342 puts both
an objective and a subjective test. The landowner is not liable if he
reasonably believes that the licensee will discover the danger and protect
herself. Id. § 342(a). The landowner is also not liable if the licensee does in
fact know or have reason to know of the danger. Id. § 342(c). This second
or subjective test seems to be an inappropriate importation of contributory
negligence rules. So far as duty and negligence are concerned, the test is
logically about what the landowner could reasonably expect of the licensee.
54 See Scott v. Archon Group, L.P., 191 P.3d 1207 (Okla. 2008).
55 See Bagnana v. Wolfinger, 385 N.J.Super. 1, 10, 895 A.2d 1180,
1186 (2006); cf. Tincani v. Inland Empire Zoological Soc’y, 124 Wash.2d
121, 875 P.2d 621 (1994) (defining open and apparent danger as one of
which the licensee knows or has reason to know). The topic is discussed in
more detail in § 20.7.
57 See § 20.7.
58 See Cole v. Fairchild, 198 W.Va. 736, 482 S.E.2d 913 (1996).
59 The upshot is that firefighters and police officers are treated more
or less like licensees in many cases, although the theory has become more
complicated. See Chapter 24.
60 Cole v. Fairchild, 198 W.Va. 736, 482 S.E.2d 913 (1996) (“An
‘invitation’ occurs when a possessor of certain premises exhibits conduct
which makes others believe the possessor wants them to be on the
premises.”).
61 See Blair v. Ohio Dep’t of Rehab. & Corr., 61 Ohio Misc.2d 649,
582 N.E.2d 673 (Ct. Cl. 1989) (“the basis for invitee status is the implied
assurance of safety conveyed to the visitor”). Scores of cases have quoted or
paraphrased the assertion that the invitee enters upon the representation
or assurance that the land has been prepared and made safe for his
reception. See Restatement Second of Torts § 343, cmt. b (1965). That
statement implies something about the nature of the landowner duty, but
also something about who counts as an invitee—one who receives
assurances, often implicit, that the land is reasonably safe for her entry.
62 E.g., Hose v. Winn-Dixie Montgomery, Inc., 658 So.2d 403 (Ala.
1995); Clohesy v. Food Circus Supermarkets, Inc. 149 N.J. 496, 694 A.2d
1017 (1997); Hoover v. Broome, 324 S.C. 531, 479 S.E.2d 62 (Ct. App.
1997); Janis v. Nash Finch Co., 780 N.W.2d 497 (S.D. 2010).
63 See Boren v. Worthen Nat’l Bank of Arkansas, 324 Ark. 416, 921
S.W.2d 934 (1996) (bank customer); Branks v. Kern, 320 N.C. 621, 359
S.E.2d 780, 68 A.L.R.4th 817 (1987) (pet owner in veterinarian’s office),
abrogated on other grounds by Nelson v. Freeland, 349 N.C. 615, 507
S.E.2d 882 (1998) (modifying common-law entrant-classification scheme).
When the service itself rather than a condition of the land is the source of
harm, the service provider may be held to a duty appropriate to the type of
service. A health care provider, for example, would be held to that special
standard in the provision of those services. See Chapter 21.
64 Martin v. City of Washington, Mo., 848 S.W.2d 487 (Mo. 1993)
(high school football game, bleachers gave way with the plaintiff, who was
classified as a public invitee); Mostert v. CBL & Associates, 741 P.2d 1090
(Wyo. 1987) (movie patron invitee and entitled to warning of off-premises
flash flooding due to storms during movie).
65 E.g., Hylazewski v. Wet ‘N Wild, Inc., 432 So.2d 1371 (Fla. App.
1983) (swimming pool, artificial waves); Peterson v. Summit Fitness, Inc.,
920 S.W.2d 928 (Mo. App. 1996) (fitness center, swimming pool).
66 Afoa v. Port of Seattle, 176 Wash.2d 460, 296 P.3d 800 (2013).
67 See Lane v. Groetz, 108 N.H. 173, 230 A.2d 741 (1967); Dawson v.
Bunker Hill Plaza Associates, 289 N.J.Super. 309, 673 A.2d 847 (1996).
This category includes those who by invitation make delivery of goods, e.g.,
Busy Fee Buffet v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957), and those
who haul trash or garbage out. Hull v. Bishop-Stoddard Cafeteria, 238
Iowa 650, 26 N.W.2d 429 (1947).
68 Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103 (Tex. App.
1997).
69 Cf. Landry v. Hilton Head Plantation Property Owners Ass’n, 317
S.C. 200, 452 S.E.2d 619 (1994) (resident of gated community an invitee
while in common areas of the community, since resident’s presence
conferred economic benefit on owners).
70 This is true of children, for example, but not only children. See
Morris v. De La Torre, 36 Cal. 4th 260, 113 P.3d 1182, 30 Cal. Rptr. 3d 173
(2005) (plaintiff was an invitee when he accompanied friends to the
defendant’s restaurant, although he did not intend to eat); but see Vogt v.
Murraywood Swim and Racquet Club, 357 S.C. 506, 593 S.E.2d 617 (2004)
(guest invited onto club premises by member of club was a licensee).
71 Wieseler v. Sisters of Mercy Health Corp., 540 N.W.2d 445 (Iowa
1995); Sutherland v. Saint Francis Hospital, Inc., 595 P.2d 780 (Okla.
1979).
72 Blair v. Ohio Dep’t of Rehab. & Corr., 61 Ohio Misc.2d 649, 582
N.E.2d 673 (Ct. Cl. 1989).
73 Gaita v. Laurel Grove Cemetery Co., 323 N.J. Super. 89, 731 A.2d
1245 (1998); see Thomas J. Goger, Annotation, Liability in Action Based
upon Negligence, for Injury to, or Death of, Person Going upon Cemetery
Premises, 63 A.L.R.3d 1252 (1975) (also reflecting some cases holding
visitors to be licensees).
74 Cf. Hoover v. Broome, 324 S.C. 531, 479 S.E.2d 62 (App. 1997)
(entering service station to ask directions).
75 E.g., Orr v. First Nat’l Stores, Inc., 280 A.2d 785 (Me. 1971).
76 Cf. Mathias v. Denver Union Terminal Ry. Co., 137 Colo. 224, 323
P.2d 624 (1958) (photographer making photographs at train station was
invitee so long as he was in area intended for public use).
77 Smith v. United States, 117 F.Supp. 525 (N.D. Cal. 1953) (public
campground in National Forest owned by United States).
78 Stacy v. Shapiro, 212 A.D. 723, 209 N.Y.S. 305 (1925); Bidiman v.
Gehrts, 133 Or.App. 145, 890 P.2d 436 (1995) (insurance agent had
previously contacted the defendant for policy renewal at defendant’s
business, not at home; no implicit invitation); cf. Edmunds v. Copeland,
197 Ga.App. 292, 398 S.E.2d 280 (1990) (invitation not established,
insurance sales agent was a licensee only); Singleton v. Jackson, 85
Wash.App. 835, 935 P.2d 644 (1997) (entrance to make religious
solicitation was by implicit permission, but not by invitation, hence
solicitor was licensee only).
79 Handleman v. Cox, 39 N.J. 95, 187 A.2d 708 (1963) (salespersons
on portion of premises not open to the public, but prior dealings of the
parties would support a jury finding of invitation to be there).
80 Johnson v. Short, 213 Or. App. 255, 160 P.3d 1004 (2007).
81 E.g., Handy v. Nejam, 111 So.3d 610 (Miss. 2013); Mathias v.
Denver Union Terminal Ry. Co., 137 Colo. 224, 323 P.2d 624 (1958);
Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312,
662 N.E.2d 287 (1996); Egede-Nissen v. Crystal Mountain, Inc., 93
Wash.2d 127, 606 P.2d 1214 (1980).
82 Cf. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982)
(short cut through plantings).
83 Restatement Second of Torts § 332, cmt. l (1965).
84 Morris v. De La Torre, 36 Cal. 4th 260, 113 P.3d 1182, 30 Cal.
Rptr. 3d 173 (2005) (attack on plaintiff in restaurant parking lot, plaintiff
who was an invitee inside the restaurant was still an invitee and owed a
duty of care).
85 Savage v. Flagler Company, 185 Ga.App. 334, 364 S.E.2d 52
(1987), modified on other grounds, Flagler Company v. Savage, 258 Ga.
335, 368 S.E.2d 504 (1988).
86 Miniken v. Carr, 71 Wash.2d 325, 428 P.2d 716 (1967).
87 Markle v. Hacienda Mexican Restaurant, 570 N.E.2d 969 (Ind.
1991) (plaintiff drove into shopping center to eat at a restaurant there,
saw a friend, and was transferring an item from his vehicle to his friend’s
when he fell in a pothole; jury question whether this was within the scope
of the invitation); cf. Chapman v. Willey, 134 P.3d 568 (Colo. App. 2006)
(man with landowner’s permission to visit his wife at motel was a
trespasser when he went there to fight with another man).
88 See Backiel v. Citibank, N.A., 299 A.D.2d 504, 751 N.Y.S.2d 492
(2002) (duty of landowner to keep entryways and common passages safe is
nondelegable); Thomas v. E-Z Mart Stores, Inc., 102 P.3d 133 (Okla. 2004)
(store owed invitee a nondelegable duty to act reasonably to assure that
floor mats supplied by another company at store’s entrance were safe).
89 Mensink v. American Grain, 564 N.W.2d 376 (Iowa 1997); Janis v.
Nash Finch Co., 780 N.W.2d 497 (S.D. 2010); Adkins v. Chevron, USA,
Inc., 199 W.Va. 518, 485 S.E.2d 687 (1997); Restatement Second of Torts §
343 (1965).
90 E.g., New York Cent. R. v. Wyatt, 135 Ind.App. 205, 184 N.E.2d
657 (1962). See Glen Weissenberger & Barbara B. McFarland, The Law of
Premises Liability § 4.10 (4th ed. 2014). When active operations or
negligent delivery of services are involved, courts often proceed directly to
discussion of ordinary negligence without classifying the plaintiff.
91 See Chapter 11.
92 Vega v. Eastern Courtyard Associates, 24 P.3d 219 (Nev. 2001); cf.
Pierce v. ALSC Architects, P.S., 270 Mont. 97, 890 P.2d 1254 (1995)
(architect negligent per se for design in violation of code).
93 Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 697 N.E.2d 198
(1998) (under state’s rule that violation of administrative codes is not
negligence per se); Elliott v. City of New York, 95 N.Y.2d 730, 747 N.E.2d
760, 724 N.Y.S.2d 397 (2001) (under state’s rule that violation of
ordinances is evidence of negligence only).
94 See Mensink v. American Grain, 564 N.W.2d 376 (Iowa 1997).
95 See Benham v. King, 700 N.W.2d 314 (Iowa 2005) (dentist was not
negligent in failing to inspect dental chair where manufacturer had not
suggested any form of maintenance).
96 Providing an inadequate warning will not, of course, satisfy the
duty. See TXI Operations, L.P. v. Perry, 278 S.W.3d 763 (Tex. 2009) (a 15
mile-per-hour speed limit sign was inadequate as a matter of law to warn
of a massive pothole in defendant’s road).
97 Restatement Second of Torts § 344 (1965); see Chapter 26 (on
protecting from third persons). But see Luoni v. Berube, 431 Mass. 729,
729 N.E.2d 1108 (2000) (landowner owed no duty to social guests to
protect them from fireworks brought and used by other guests, since the
risk did not arise from the guests’ use of the defendant’s land or chattels);
Smaxwell v. Bayard, 274 Wis.2d 278, 682 N.W.2d 923 (2004) (landowner
not liable to protect persons lawfully on the land from known dangers of
dogs, where the landowner was not the owner or keeper of the dogs).
98 Harradon v. Schlamadinger, 913 N.E.2d 297 (Ind. App. 2009) (soft
sofa on which a sleeping baby suffocated was not an “unreasonably
dangerous condition” on land).
99 As where merchandise falls on a customer, or a customer carrying
parcels collides with an object in the aisle. See Linda A. Sharp,
Annotation, Liability for Injury to Customer from Object Projecting into
Aisle or Passageway in Store, 40 A.L.R.5th 135 (1996); Michael P.
Sullivan, Annotation, Liability for Injury to Customer or Other Invitee of
Retail Store by Falling of Displayed, Stored, or Piled Objects, 61 A.L.R.4th
27 (1989).
100 Many are reviewed in annotations. See, e.g., Sonja A. Soehnel,
Annotation, Liability of Operator of Grocery Store to Invitee Slipping on
Spilled Liquid or Semiliquid Substance, 24 A.L.R.4th 696 (1981)
101 Morris v. Wal-Mart Stores, Inc., 330 F.3d 854 (6th Cir. 2003) (by
inference, defendant installed a freezer without a plug, permitting it to
drain water into area where shoppers pushing carts could slip); Getchell v.
Rogers Jewelry, 203 Cal. App. 4th 381, 136 Cal. Rptr. 3d 641 (2012)
(cleaning solution on floor; where plaintiff produces evidence from which a
reasonable inference can be drawn that the dangerous condition was
created by the defendant, the defendant is charged with notice of that
condition); Finan v. Atria East Associates, 230 A.D.2d 707, 646 N.Y.S.2d
164 (1996) (claim of negligently waxed floor); Smith v. Wal-Mart Stores,
Inc., 314 S.C. 248, 442 S.E.2d 606 (1994) (same).
102 The mode of operation rule should not apply generally to all
accidents in self-service retail establishments, but only to those accidents
that result from particular hazards that either occur regularly or are
inherently foreseeable due to the particular mode of operation employed on
the premises. Fisher v. Big Y Foods, Inc., 298 Conn. 414, 3 A.3d 919
(2010). See also FGA, Inc. v. Giglio, 278 P.3d 490 (Nev. 2012) (mode of
operation instruction is proper only where there is evidence that the
defendant created an increased risk of a potentially hazardous condition
by having its customers perform tasks traditionally carried out by
employees).
103 E.g., Kelly v. Stop and Shop, Inc., 281 Conn. 768, 918 A.2d 249
(2007); Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256 (Fla.
2002); Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 863
N.E.2d 1276 (2007); Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 818
A.2d 314 (2003); Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004);
Owens v. Redd, 215 Va. 13, 205 S.E.2d 669 (1974); Malaney v. Hannaford
Bros. Co., 177 Vt. 123, 861 A.2d 1069 (2004). See Glen Weissenberger &
Barbara B. McFarland, The Law of Premises Liability § 7.06 (4th ed.
2014).
104 Courts often say in these cases that the defendant must have
actual or constructive knowledge of the danger. See, e.g., American Multi-
Cinema, Inc. v. Brown, 285 Ga. 442, 679 S.E.2d 25 (2009). This expression
is merely another way of saying that the plaintiff must prove that the
defendant either knew or should have known of the danger. See, e.g.,
Thoma v. Cracker Barrel Old Country Store, Inc., 649 So.2d 277 (Fla. App.
1995); Jones v. Imperial Palace of Mississippi, LLC, 147 So.3d 318 (Miss.
2014). Some courts view this not as a requirement but rather as a factor in
the negligence analysis. See, e.g., Edenshaw v. Safeway, Inc., 186 P.3d 568
(Alaska 2008).
105 E.g., J. Weingarten, Inc. v. Thompson, 251 Ark. 914, 475 S.W.2d
697 (1972) (from discoloration of old, black-looking leaf, far from vegetable
display, an inference that it had been present two days in spite of regular
cleanups).
106 Ortega v. K-Mart Corp., 26 Cal.4th 1200, 36 P.3d 11, 114
Cal.Rptr.2d 470 (2001).
107 In Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 587 A.2d
1056 (1991), the plaintiff slipped on a substance on the floor, perhaps a
lotion. Workers were standing nearby for 15 minutes and had not heard a
bottle break. Hence, the court reasoned, the substance might have been on
the floor more than 15 minutes and that was sufficient time for a
reasonable store to discover the condition and make it safe. Similarly, in
Kenney v. Kroger Co., 569 So.2d 357 (Ala. 1990), the fact that a bottle of
liquid was open on the shelf and a large amount of liquid had spilled or
dripped to the floor was said to support an inference that the condition had
been present a long time.
108 See, e.g., Ex parte Harold L. Martin Distributing Co., 769 So.2d
313 (Ala. 2000); contra, Morris v. Wal-Mart Stores, Inc., 330 F.3d 854 (6th
Cir. 2003) (applying Tennessee law).
109 E.g., Gulycz v. Stop and Shop Companies, 29 Conn. App. 519, 615
A.2d 1087 (1992); Hartley v. Waldbaum, Inc., 69 A.D.3d 902, 893 N.Y.S.2d
272 (2010); Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006).
110 E.g., Wood v. RIH Acquisitions MS II, LLC, 556 F.3d 274 (5th Cir.
2009) (applying Mississippi law); Dolgencorp, Inc. v. Taylor, 28 So. 3d 737
(Ala. 2009); Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 788 N.E.2d 1088
(2003); Griebler v. Doughboy Recreational, Inc., 160 Wis.2d 547, 466
N.W.2d 897 (1991).
111 E.g., Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 475 (2014).
112 See Brandert v. Scottsbluff Nat’l Bank & Trust Co., 194 Neb. 777,
235 N.W.2d 864 (1975); Wilden v. Neumann, 344 Mont. 407, 189 P.3d 610
(2008) (landlord owed no duty to keep adjacent city-owned alley free of ice
and snow).
113 See Iwai v. State, 129 Wash.2d 84, 915 P.2d 1089 (1996); see also
Papadopoulos v. Target Corp., 457 Mass. 368, 930 N.E.2d 142 (2010)
(citing the earlier modification to the open-and-obvious rule, holding that
there is no distinction between natural and unnatural accumulations of
snow and ice for purposes of a premises liability claim).
114 Restatement Second of Torts § 343A(1) (1965).
Harm) § 51, cmt. k (2012). See Foster v. Costco Wholesale Corp., 291 P.3d
150 (Nev. 2012) (open and obvious character of hazard does not
automatically relieve the landowner of a duty of due care, but rather bears
on the assessment of whether reasonable care was exercised).
116 See, e.g., DeBusscher v. Sam’s East, Inc., 505 F.3d 475 (6th Cir.
2007) (Michigan law); Shelton v. Kentucky Easter Seals Soc., Inc., 413
S.W.3d 901 (Ky. 2013); O’Sullivan v. Shaw, 431 Mass. 201, 726 N.E.2d 951
(2000); Warner v. Simmons, 288 Neb. 472, 849 N.W.2d 475 (2014); Foster
v. Costco Wholesale Corp., 291 P.3d 150 (Nev. 2012). See also Ernest H.
Schopler, Annotation, Modern Status of the Rule Absolving a Possessor of
Land of Liability to Those Coming Thereon for Harm Caused by
Dangerous Physical Conditions of Which the Injured Party Knew and
Realized the Risk, 35 A.L.R.3d 230 (1971).
117 See, e.g., Lombard v. Colorado Outdoor Educ. Center, Inc., 187
P.3d 565 (Colo. 2008); Shelton v. Kentucky Easter Seals Soc., Inc., 413
S.W.3d 901 (Ky. 2013); Dos Santos v. Coleta, 465 Mass. 148, 987 N.E.2d
1187 (2013); Grolean v. Bjornson Oil Co., 676 N.W.2d 763 (N.D. 2004).
118 See Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 629 N.W.2d 384
(2001); General Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008);
51, cmt. k (2012) (“Known or obvious risks pose a reduced risk compared to
comparable latent dangers because those exposed can take precautions to
protect themselves.”). Whether a dangerous condition is “open and
obvious” at all may present a jury question. See Bruns v. City of Centralia,
21 N.E.3d 684 (Ill. 2014).
119 Even where the defendant owes a duty to protect the plaintiff from
an obvious risk, that duty is not breached where the defendant takes
adequate precautions. See Payne v. United States, 359 F.3d 132 (2d Cir.
2004) (New York law).
120 Hale v. Beckstead, 116 P.3d 263 (Utah 2005) (“Though the
distinction between excusing acknowledged negligence and defining a
narrow duty of care may be subtle, we find it nonetheless important.
Where there is no duty, there is no fault to compare or distribute under
the comparative fault scheme.”).
121 Iwai v. State, 129 Wash.2d 84, 915 P.2d 1089 (1996); Restatement
Second of Torts § 343A(2) (1965).
122 See Osborn v. Mission Ready Mix, 224 Cal.App.3d 104, 273
Cal.Rptr. 457 (1990); Steichen v. Talcott Properties, LLC, 368 Mont. 169,
292 P.3d 458 (2013). Cf. Wood v. Mercedes-Benz of Oklahoma City, 336
P3d 457 (Okla. 2014) (car dealership had duty to protect employee of
catering service from slipping on accumulated ice on premises; court noted
that dealership knew of the ice and that the employee would encounter it
in furtherance of her employment).
123 See, e.g., Duffy v. Togher, 382 Ill.App.3d 1, 887 N.E.2d 535, 320
Ill.Dec. 391 (2008) (issue of fact whether homeowners had reason to
suspect that intoxicated invitee would be distracted and not recognize the
danger of diving into a pool); Gilmore v. Walgreen Co., 759 N.W.2d 433
(Minn. App. 2009) (issue of fact whether employees of drug store could
have anticipated a customer tripping over a pallet); Luther v. City of
Winner, 674 N.W.2d 339 (S.D. 2004) (fact issue whether step in public
sidewalk was unreasonably dangerous where plaintiff testified to being
distracted).
124 Urban v. Wait’s Supermarket, Inc., 294 N.W.2d 793 (S.D. 1980);
see also Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App.
381, 693 A.2d 370 (1997) (“The storekeeper expects and intends that his
customers shall look not at the floor but at the goods which he displays….
He at least ought not to complain, if they look at the goods displayed
instead of at the floor to discover possible pitfalls, obstructions, or other
dangers, or if their purchases so encumber them as to prevent them from
seeing dangers which might otherwise be apparent. Patrons are entitled
therefore to rely to some extent at least upon the presumption that the
proprietor will see that the passage ways provided for their use are
unobstructed and reasonably safe.”).
125 Dawson v. Payless for Drugs, 248 Or. 334, 433 P.2d 1019 (1967).
Emotional Harm) § 51, cmt. k (2012) (“An entrant who encounters an
obviously dangerous condition and who fails to exercise reasonable self-
protective care is contributorily negligent.”).
127 See § 15.7 (rescuer’s acts not a superseding cause) & § 16.2
(rescuer’s confrontation with danger not contributory fault).
128 Clinkscales v. Nelson Securities, Inc., 697 N.W.2d 836 (Iowa
2005).
129 In Steigman v. Outrigger Enterprises, Inc., 126 Haw. 133, 267
P.3d 1238 (2011), the court held that the “known or obvious danger
defense was no longer a complete defense” to a premises liability claim,
and instead any known or obvious characteristics of the danger should be
considered “as factors in the larger comparative negligence analysis,”
finding the all-or-nothing rule inconsistent with the legislative adoption of
comparative negligence.
130 In many states today, assumption of risk need not be a third
complication, because it would be covered either in the contributory
negligence analysis or in the no-negligence analysis. See § 237. Some
states do allow assumption of risk as a complete defense in an entrant’s
suit against a landowner. See Werne v. Exec. Women’s Golf Ass’n, 158
N.H. 373, 969 A.2d 346 (2009) (golfer assumed the risk of being struck by a
golf ball on defendant’s golf course). Where assumption of risk remains as
a theoretically separate concept, the confusion is both formidable and
depressing. See the discussion of the problem in Parker v. Highland Park,
Inc., 565 S.W.2d 512 (Tex. 1978).
131 See, e.g., Fulmer v. Timber Inn Restaurant and Lounge, Inc., 330
Or. 413, 9 P.3d 710 (2000) (defendant serving alcohol at the top of
dangerous, unguarded stairs, predictably risking injury; defendant owed
plaintiff a duty but plaintiff’s recovery might be reduced for comparative
fault).
132 See Bufkin v. Felipe’s Louisiana, LLC, 171 So.3d 851 (La. 2014)
(visual obstruction was “obvious and apparent, and reasonably safe for
persons exercising ordinary care and prudence”; no duty); Tagle v. Jakob,
97 N.Y.2d 165, 763 N.E.2d 107, 737 N.Y.S.2d 331 (2001) (no duty where on
the particular facts, no harm was foreseeable because danger would be
seen and avoided).
133 Where the entrant categories have been abolished and in favor of
the general rule of reasonable care, see § 20.9, the rule applies to protect
children on the land as well as others. Silva v. Union Pacific R.R. Co., 85
Cal.App.4th 1024, 102 Cal.Rptr.2d 668 (2000); Morse v. Goduti, 146 N.H.
697, 777 A.2d 292 (2001).
134 E.g., Wal-Mart Stores, Inc. v. Lerma, 749 S.W.2d 572 (Tex. App.
1988) (child injured in store while swinging on clothing rack as mother
shopped; store liable).
135 Orr v. First National Stores, Inc., 280 A.2d 785, 50 A.L.R.3d 1202
(Me. 1971).
136 E.g., Bae v. Dragoo & Assoc., Inc., 156 Ohio App.3d 103, 804
N.E.2d 1007 (2004) (finding no breach of duty by landowner in
maintaining pool in which child invitee drowned).
137 See Johnson v. Pettigrew, 595 N.E.2d 747 (Ind.App. 1992).
138 E.g., Quereshi v. Ahmed, 394 Ill.App.3d 883, 916 N.E.2d 1153, 334
Ill.Dec. 265 (2009) (child playing on treadmill). Where reasonable people
can differ on the obviousness point, it presents a jury issue. See
Kopczynski v. Barger, 887 N.E.2d 928 (Ind. 2008) (child jumping on
neighbor’s trampoline). Where a landowner knows of a particular child’s
inability to appreciate risk, and knows the child might be present, this
may create a question of fact as to whether the landowner should have
foreseen that a “patent” danger was nonetheless unreasonably risky to
that child. Morse v. Goduti, 146 N.H. 697, 777 A.2d 292 (2001).
139 See, e.g., Ahmed v. Pickwick Place Owners’ Ass’n, 385 Ill.App.3d
874, 896 N.E.2d 854 (2008) (landowners do not owe children a duty to
warn them of the hazards of drowning in water, thus defendants owed no
duty to a 7-year-old resident of its apartment complex to provide a
warning of the dangers presented by a retention pool in which the child
drowned). Cf. Restatement Second of Torts § 339, cmt. j (1965) (discussing
trespassing children).
140 E.g., Grant v. South Roxana Dad’s Club, 381 Ill.App.3d 665, 886
N.E.2d 543, 319 Ill.Dec. 780 (2008) (eight-year-old child injured when
attempting to become airborne on his bicycle, using a four-foot pile of dirt
in playground operated by defendant). Illinois has adopted a rule that
absolves a landowner of a duty to a child who is harmed by an obvious
danger while under parental supervision, or when the parent knew of the
existence of the dangerous condition. See Harlin v. Sears Roebuck & Co.,
369 Ill.App.3d 27, 307 Ill.Dec. 825, 860 N.E.2d 479 (2006) (two-year-old
child hit head on display stand in defendant’s store while mother was
shopping; no liability).
141 E.g., Bradford v. Feeback, 149 Mich.App. 67, 385 N.W.2d 729
(1986).
142 Robles v. Severyn, 19 Ariz.App. 61, 504 P.2d 1284 (1973).
143 Restatement Second of Torts § 343B (1965).
144 Padilla v. Rodas, 160 Cal.App.4th 742, 73 Cal.Rptr.3d 114 (2008)
(homeowner owed no duty to care to two-year-old child while mother was
supervising him, where child drowned in backyard pool); Foss v. Kincade,
746 N.W.2d 912 (Minn. App. 2008) (homeowner owed no duty to protect a
three-year-old visitor who was under the supervision of his mother, where
an empty bookcase fell on the child as he tried to climb it).
145 Johnson v. Pettigrew, 595 N.E.2d 747 (Ind. App. 1992). But the
duty to supervise does not arise unless the defendant has accepted
responsibility by word or deed. Bradley v. Welch, 94 Ark.App. 171, 228
S.W.3d 559 (2006).
146 Giacona v. Tapley, 5 Ariz. App. 494, 428 P.2d 439 (1967) (five-
year-old, liability recognized); Goodwin v. Jackson, 484 So.2d 1041 (Miss.
1986) (three-year-old, liability denied).
147 Rush v. Plains Tp., 371 Pa. 117, 89 A.2d 200 (1952) (no liability);
cf. Dehn v. S. Brand Coal & Oil Co., 241 Minn. 237, 63 N.W.2d 6 (1954)
(similar facts but stronger evidence that landowner knew of fires,
liability).
148 See Glen Weissenberger & Barbara B. McFarland, The Law of
Premises Liability § 2.07 (4th ed. 2014).
149 See S.W. v. Towers Boat Club, Inc., 315 P.3d 1257 (Colo. 2013)
(attractive nuisance doctrine applies to all children, not simply trespassing
children); Mason v. City of Mt. Sterling, 122 S.W.3d 500, 509 (Ky. 2003)
(same); but see Uddin v. Embassy Suites Hotel, 165 Ohio App.3d 699, 848
N.E.2d 519 (2005) (attractive nuisance doctrine inapplicable to child who
is not a trespasser).
150 Bennett v. Stanley, 92 Ohio St.3d 35, 748 N.E.2d 41 (2001); see
Whipple v. American Fork Irrigation Co., 910 P.2d 1218, 1221 (Utah 1996)
(defendant did not challenge the rule giving rescuer the child’s status).
151 E.g., Osterman v. Peters, 260 Md. 313, 272 A.2d 21 (1971);
Anderson v. Claiborne County Recreation Club, Inc., 812 So.2d 965 (Miss.
2002) (only duty owed to a child trespasser is not to willfully or wantonly
harm). The Third Restatement provides that all entrants on land are owed
a duty of reasonable care, except for “flagrant trespassers.” See
52(a) & cmt. b (2012). Child trespassers are subject to no special rules in
the Third Restatement. If they are “flagrant trespassers,” then they are
owed a lesser duty; if they are merely non-flagrant trespassers, as many
children will undoubtedly be, then they are owed a duty of reasonable
care. See Id. § 51, cmt. l.
152 Keffe v. Milwaukee & St. Paul Ry., 21 Minn. 207 (1875). The
Supreme Court had held for the plaintiff in a similar case two years earlier
in Sioux City & Pacific R.R. v. Stout, 84 U.S. 657 (1873).
153 United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 66 L.Ed. 615,
42 S.Ct. 299 (1922).
154 See McGettigan v. National Bank of Washington, 320 F.2d 703,
706 (D.C. Cir. 1963). Holmes’ decision in Britt was rendered in the days
before Erie R.R. v. Tompkins, 304 U.S. 64, 82 L.Ed. 1188, 58 S.Ct. 817
(1938). After the decision in Erie, the federal common law of torts more or
less ceased to exist, so it would now be difficult for the Court directly to
overrule the Britt case.
155 E.g., Henson ex rel. Hunt v. Intern. Paper Co., 374 S.C. 375, 650
S.E.2d 74 (2007) (attractive nuisance doctrine does not require that the
injured child was attracted to the property by the very temptation that
caused the injury); Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843
(1948) (“The element of attraction is important only in so far as it may
mean that the presence of children was to be anticipated.”); Kessler v.
Mortenson, 16 P.3d 1225 (Utah 2000). Contra, Nelson v. City of Rupert,
128 Idaho 199, 911 P.2d 1111 (Idaho 1996) (child trespasser must be
attracted by the injury-causing condition).
156 E.g., Kahn v. James Burton Company, 5 Ill.2d 614, 126 N.E.2d 836
(1955) (“The element of attraction is significant only in so far as it
indicates that the trespass should be anticipated, the true basis of liability
being the foreseeability of harm to the child.”).
157 Restatement Second of Torts § 339 (1965). See, e.g., Croaker v.
Mackenhausen, 592 N.W.2d 857 (Minn. 2009) (applying the “reason to
know” test, finding defendant had no reason to know of child’s trespass).
“Reason to know” is not necessarily actual knowledge of the fact in
question, but it is knowledge of specific facts that would lead to an
inference of such a fact. See Restatement Second of Torts § 12 (1965).
158 See Restatement Second of Torts § 339, cmts. g & h (1965).
159 Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 565 N.E.2d
1180 (1991) (child trespasser rules reflect national trend toward uniform
standard of care); McGettigan v. National Bank of Washington, 320 F.2d
703 (D.C. Cir. 1963) (favoring an ordinary negligence approach).
160 Porter v. Delmarva Power & Light Co., 547 A.2d 124 (Del. 1988);
Hofer v. Meyer, 295 N.W.2d 333 (S.D. 1980); Texas Utilities Elec. Co. v.
Timmons, 947 S.W.2d 191 (Tex. 1997) (quoting the formula, seemingly not
recognizing that it had stated a foreseeability test decades earlier in
Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843 (1948)); Thunder
Hawk ex rel. Jensen v. Union Pacific R. Co., 844 P.2d 1045 (Wyo. 1992).
161 E.g., Gregory v. Johnson, 249 Ga. 151, 289 S.E.2d 232 (1982)
(reasonable foreseeability); Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill.2d 110, 214 Ill. Dec. 156, 660 N.E.2d 863
(1995) (but holding that harm from obvious danger was not foreseeable);
Mason v. City of Mt. Sterling, 122 S.W.3d 500 (Ky. 2003) (landowner may
be liable for any artificial condition “which the possessor realizes, or
should realize, creates an unreasonable risk” to young children); Mathis v.
Massachusetts Electric Co., 409 Mass. 256, 565 N.E.2d 1180 (1991)
(foreseeable child trespassers); Banker v. McLaughlin, 146 Tex. 434, 208
S.W.2d 843, 8 A.L.R.2d 1231 (1948).
162 Anderson v. Cahill, 485 S.W.2d 76 (Mo. 1972); Bateman v. Mello,
617 A.2d 877 (R.I. 1992).
163 Restatement Second of Torts § 339(b) (1965).
164 Id. § 339(a). See, e.g., Laster v. Norfolk Southern Ry. Co., 13 So.3d
922 (Ala. 2009) (landowner must have at least reason to know of child’s
likely trespass and danger); Foss v. Kincade, 766 N.W.2d 317 (Minn. 2009)
(same).
165 See, e.g., Fields v. Henrich, 208 S.W.3d 353 (Mo. App. 2006)
(plaintiff failed to prove that defendant landowners knew or had reason to
know that children too young to appreciate the danger presented by a
sewage pond were likely to trespass on their land); Restatement Second of
Torts § 339 cmt. i (1965). Illinois has come up with a stringent rule that
appears to allow the defendant to invariably shift responsibility for the
trespassing child to the parents who “bear the primary responsibility for
safety of their children” whenever the danger is “obvious.” In effect the
defendant is allowed to assume that if the child is out alone, he has
capacity to appreciate dangers. Mt. Zion State Bank & Trust v.
Consolidated Communications, Inc., 169 Ill.2d 110, 214 Ill. Dec. 156, 660
N.E.2d 863 (1995).
166 Bateman v. Mello, 617 A.2d 877 (R.I. 1992) (liability on the facts
would pose “devastating implications for landowners”); Banker v.
McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231 (1948)
(dangerous pit was easily filled and served no useful purpose);
Restatement Second of Torts § 339(d) (1965) (the special rule for
trespassing children does not apply unless “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”).
167 Spur Feeding Co. v. Fernandez, 106 Ariz. 143, 472 P.2d 12, 49
A.L.R.3d 925 (1970).
168 The tally includes Iowa, Kansas, Maine, Massachusetts,
Minnesota, Nebraska, New Mexico, North Carolina, North Dakota, Rhode
Island, Tennessee, Vermont, West Virginia, Wisconsin, and Wyoming.
Illinois abolished the licensee-invitee distinction by statute. The list may
be expanded to include those states that define invitees to include social
guests but otherwise retain the licensee category. Florida and Indiana are
in this category. The U.S. Supreme Court rejected the common-law
classification approach in Admiralty cases in Kermarec v. Compagnie
Generale Transatlantique, 358 U.S. 625, 3 L.Ed.2d 550, 79 S.Ct. 406
(1959).
169 Alaska, California, Colorado, District of Columbia, Hawaii,
Louisiana, Montana, Nevada, New Hampshire, and New York. Legislation
in Colorado has since intervened to restore much of the common law
approach. Colo. Rev. Stats. § 13–21–115. The trend began in the states
with Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561
(1968). This was once seen by many as an inexorable tide, but as the
Arkansas court put it twenty years after Rowland, the complete-abolition
movement may have “lost its steam.” Baldwin v. Mosley, 295 Ark. 285, 748
S.W.2d 146 (1988).
Harm) §§ 51 & 52 (2012).
171 See Webb v. City and Borough of Sitka, 561 P.2d 731 (Alaska
1977) (“the foreseeability of her presence determines in part (a) the
likelihood of injury to her, and (b) the extent to which the City must take
action or the interest it must sacrifice to avoid the risk of injury”),
superseded by statute as stated in Univ. of Alaska v. Shanti, 835 P.2d 1225
(Alaska 1992); Marioenzi v. DiPonte, Inc., 114 R.I. 294, 333 A.2d 127
(1975), overruled on other grounds, Tantimonico v. Allendale Mutual Ins.
Co., 637 A.2d 1056 (R.I. 1994); Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.
1984) (“foreseeability of the presence of the visitor and the likelihood of
harm to him being one of the principal factors in assessing liability”),
abrogated on other grounds, McIntyre v. Balentine, 853 S.W.2d 52 (Tenn.
1992).
172 See Boycher v. Livingston Parish School Board, 716 So.2d 187 (La.
App. 1998) (“Although the common law classifications of invitee-licensee-
trespasser are not determinative of liability, the plaintiff’s status has a
bearing on the question of liability.”); Peterson v. Balach, 294 Minn. 161,
199 N.W.2d 639 (1972); Scurti v. City of New York, 40 N.Y.2d 433, 387
N.Y.S.2d 55, 354 N.E.2d 794 (1976); Demag v. Better Power Equip., Inc.,
102 A.3d 1101, 2014 VT 78 (2014).
173 See Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97 (D.C. Cir.
1972) (“Foreseeability of the visitor’s presence determines in part the
likelihood of injury to him, and the extent of the interest which must be
sacrificed to avoid the risk of injury.”); Basso v. Miller, 40 N.Y.2d 233, 386
N.Y.S.2d 564, 352 N.E.2d 868 (1976) (adopting a single standard of
reasonable care for all entrants, and quoting Smith); see also O’Leary v.
Coenen, 251 N.W.2d 746 (N.D. 1977) (“We hold only that the status of an
entrant [as] a licensee, or an invitee is no longer solely determinative of
the duty of care…. The circumstances of a visitor’s entry will continue to
have a direct relationship to the question of landowner liability.”); Cf. Foss
v. Kincade, 766 N.W.2d 317 (Minn. 2009) (“in any premises liability
negligence case, … the landowner’s duty of reasonable care is modified
according to the expected use of the land”).
174 See Glen Weissenberger & Barbara B. McFarland, The Law of
Premises Liability §§ 5.07–5.12 (4th ed. 2014); Robin Cheryl Miller,
Annotation, Effect of Statute Limiting Landowner’s Liability For Personal
Injury to Recreational User, 47 A.L.R.4th 262 (1987).
175 None of the statutes protect landowners who accept a fee for the
use of their land. See Coleman v. Oregon Parks and Recreation Dept., 347
Or. 94, 217 P.3d 651 (2009) (even where state did not charge a fee to
campers who entered park, state’s imposition of fees to use particular
facilities within park removed the immunity provided by the recreational
use statute). Merely charging for parking will not usually convert the
entrant into a “paying” guest, however. See, e.g., Stone Mountain Mem’l
Ass’n v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969); Garreans v. City
of Omaha, 216 Neb. 487, 345 N.W.2d 309 (1984), overruled on other
grounds, Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006);
Cole v. South Carolina Elec. and Gas, Inc., 355 S.C. 183, 584 S.E.2d 405
(App. 2003).
176 This purpose is often expressed in the statute itself. E.g., Fla. Stat.
Ann. § 375.251.
177 Mich. Comp. L. Ann. § 324.73301.
178 N.C. Gen. Stats. § 38A–4.
179 E.g., Cal. Civ. Code § 846.
180 N.C. Gen. Stat. § 38A–4; see Howard v. East Texas Baptist Univ.,
122 S.W.3d 407 (Tex. App. 2003) (the recreational use statute would apply
the standard of care owed by a landowner to a trespasser).
181 See § 20.6.
182 Cal. Civ. Code § 846 (“willful or malicious failure to guard or
warn”); N.Y. Gen. Oblig. L. § 9–103. As always, courts must interpret the
operative statutory terms. See, e.g., Roeder v. United States, 432
S.W.3d627 (Ark. 2014) (“malicious” in statute includes “conduct in reckless
disregard of the consequences from which malice may be inferred”)
(answering certified question).
183 Mich. Comp. L. Ann. § 324.73301; S.C. Code § 27–3–60.
184 E.g., Idaho Code § 36–1604.
185 See Klein v. United States, 50 Cal.4th 68, 112 Cal.Rptr.3d 722
(2010) (recreational use statute does not shield landowner from his
negligent driving of a vehicle on the property); Dickinson v. Clark, 767
A.2d 303 (Me. 2001) (negligent supervision of minor-guest’s use of log-
splitter not protected by statute).
186 Ala. Code § 35–15–24 (landowner knows of danger and of user’s
presence); Rev. Code Wash. Ann. § 4.24.210 (“known dangerous artificial
latent condition for which warning signs have not been conspicuously
posted”).
187 For example, where the defendant strings a steel cable across a
trail, knowing that cyclists ride there. See Wirth v. Ehly, 93 Wis.2d 433,
287 N.W.2d 140 (1980) (denying recovery under a predecessor of the
current statute).
188 E.g., Ariz. Rev. Stat. § 33–1551; Rev. Code Wash. Ann. § 4.24.210.
189 Smith v. Crown-Zellerbach, Inc., 638 F.2d 883 (5th Cir. 1981).
190 E.g., Coursey v. Westvaco Corp., 790 S.W.2d 229 (Ky. 1990).
191 See § 20.2.
192 See Stanton v. Lackawanna Energy, Ltd., 584 Pa. 550, 886 A.2d
667 (2005) (easement holder in possession of land was an “owner” entitled
to recreational use immunity); Urban v. Grasser, 243 Wis.2d 673, 627
N.W.2d 511 (2001) (injury while traversing easement over defendant’s
land held by third person, defendant is “owner”).
193 See, e.g., Wilkins v. City of Haverhill, 486 Mass. 86, 8 N.E.3d 753
(2014) (statute applies when member of the public has entered land “for
the purposes for which the owner has permitted general access”). Both
subjective purpose of the plaintiff and the nature of the activity are
sometimes considered in determining whether the statute applies. See
Auman v. School Dist. of Stanley-Boyd, 248 Wis.2d 548, 635 N.W.2d 762
(2001). However, some courts say if the land serves a recreational purpose
it does not matter whether the plaintiff was actually involved in
recreational activity at the time of injury. E.g., Camicia v. Howard S.
Wright Construction Co., 179 Wash.2d 684, 317 P.3d 987 (2014).
194 E.g., N.C. Gen. Stats. § 38A–2. A user’s “subjective intent” may be
irrelevant to some courts construing their statutes broadly to cover
“recreational users.” See Ali v. City of Boston, 441 Mass. 233, 804 N.E.2d
927 (2004) (bicyclist a “recreational user” under the statute even where he
was using the park for a non-recreational purpose at the time of his injury;
riding a bicycle is an objectively recreational activity).
195 E.g., Cal. Civ. Code § 846 (listing 20 activities, some of which
overlap, but not including skateboarding); Rev. Code Wash. Ann. §
4.24.210 (amended to include skateboarding).
196 Compare, e.g., Wilson v. Kansas State University, 273 Kan. 584,
44 P. 3d 454 (2002) (burn from unknown substance on toilet seat in
football stadium restroom; stadium is recreational, toilets an integral part,
statutory immunity applies) and Thompson v. Kyo-Ya Co., Ltd., 112
Hawai’i 472, 146 P.3d 1049 (2006) (permissive use of the defendant’s
property for access to recreational use elsewhere falls within the
protections of the statute), with Liberty v. State Dep’t of Transp., 342 Or.
11, 148 P.3d 909 (2006) (defendant’s property, not itself used for recreation
but only for access to recreation elsewhere, was not covered by the
statute); Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of La Crosse,
244 Wis.2d 290, 627 N.W.2d 527 (2001) (boys playing with matches among
bales of paper stacked by defendant to create tunnels and “forts” were not
engaged in “recreational” activities).
197 In some cases, however, statutes have been broadened and this
feature—central to the originals—has been de-emphasized, leading to
judicial doubts whether there is any coherent principle that permits
construction of the statute. See Auman v. School Dist. of Stanley-Boyd,
248 Wis.2d 548, 635 N.W.2d 762 (2001) (“We continue to be frustrated in
our efforts to state a test that can be applied easily because of the seeming
lack of basic underlying principles in the statute.”).
198 E.g., Fla. Stat. Ann. § 375.251; Rev. Code Wash. Ann. § 4.24.210.
199 See Coursey v. Westvaco Corp., 790 S.W.2d 229 (Ky. 1990) (“a
landowner must show he knew and condoned the public making
recreational use of his property, and by the landowner’s words, actions or
lack of action it must be able to be reasonably inferred the landowner
intended to permit such use”),
200 New York, for example, provides that the owner “owes no duty to
keep the premises safe for entry or use by others for [stated recreational
activities] or to give warning of any hazardous condition or use of or
structure or activity on such premises to persons entering for such
purposes….” N.Y. Gen. Oblig. L. § 9–103.
201 E.g., Larini v. Biomass Industries, Inc., 918 F.2d 1046 (2d Cir.
1990); cf. Verdoljak v. Mosinee Paper Corp., 200 Wis.2d 624, 547 N.W.2d
602 (1996) (gate barred entrance; motorcyclist injured in running into the
gate, a bar suspended from chains; held, the statute “does not purport to
condition that limit to owners who open their land to those who use it for
recreational activities.”).
202 Saari v. Winter Sports, Inc., 314 Mont. 212, 64 P.3d 1038 (2003)
(statute’s purpose “is to encourage landowners to make their property
freely available for public use by granting the landowner relief from
liability to people gratuitously entering the property for recreational
purposes,” but in spite of this purpose, the statute reduces the landowner’s
duty even when premises are not open to the public).
203 See Crawford v. Tilley, 780 P.2d 1248 (Utah 1989).
204 See Bragg v. Genesee County Agr. Soc., 84 N.Y.2d 544, 644 N.E.2d
1013 (1994); cf. Sallee v. Stewart, 827 N.W.2d 128 (Iowa 2013) (list of
activities in recreational use statute must be interpreted to promote
“activities traditionally undertaken outdoors” and “true outdoor activity”).
205 Ornelas v. Randolph, 4 Cal.4th 1095, 847 P.2d 560, 17 Cal.Rptr.
2d 594 (1993).
206 E.g., La. Stat. Ann.—R.S. 9:2795; Rev. Code Wash. Ann. §
4.24.210.
207 Ariz. Rev. Stat. § 33–1551 (a public or private owner); 745 Ill.
Comp. Stat. 10/3–106 (“neither a local public entity nor a public employee
is liable for an injury where the liability is based on the existence of a
condition on any public property intended or permitted to be used for
recreational purposes” unless the public entity or employee acts willfully
or wantonly). In Moore v. Chicago Park Dist., 2012 IL 112788, 365 Ill. Dec.
547, 978 N.E.2d 1050 (Ill. 2012), the court applied this provision to bar a
claim by the estate of a pedestrian who died after falling in the parking lot
of a city park after slipping on snow and ice, holding that accumulated
snow and ice was a “condition.” Kan. Stat. Ann. 75–6104(o) (providing
exception to governmental liability for claims for injuries resulting from
the use of public property “intended or permitted to be used” for
recreational purposes. N.H. Rev. Stat. § 508:14, I (statute applies to any
“owner, occupant, or lessee of land, including the state or any political
subdivision”). The New Hampshire statute was construed broadly in Coan
v. New Hampshire Dep’t of Environmental Services, 161 N.H. 1, 8 A.3d
109 (2010), to cover an injury on water, where the boys who drowned in
the lake “gained access to the water by using land owned by the State”).
See also Lane v. Atchison Heritage Conference Center, Inc., 283 Kan. 439,
153 P.3d 541 (2007) (construing recreational provision broadly).
208 N.C. Gen. Stats. § 38A–2 (defining owner to exclude governmental
entities).
209 E.g., Daniel v. City of Colorado Springs, 327 P.3d 891 (Colo. 2014);
Sega v. State, 60 N.Y.2d 183, 456 N.E.2d 1174, 469 N.Y.S.2d 51 (1983);
Pauley v. Circleville, 137 Ohio St.3d 212. 998 N.E.2d 1083 (2013).
210 E.g., Palmer v. United States, 945 F.2d 1134 (9th Cir. 1991)
(Hawai’i law); Martin v. City of Gadsden, 584 So.2d 796 (Ala. 1991); Neal
v. Wilkes, 470 Mich. 661, 685 N.W.2d 648 (2004); Waggoner v. City of
Woodburn, 196 Or.App. 715, 103 P.3d 648 (2004).
211 E.g., Delta Farms Reclamation Dist. v. Superior Court, 33 Cal.3d
699, 660 P.2d 1168, 190 Cal. Rptr. 494 (1983); Blonski v. Metropolitan
Dist. Com’n, 309 Conn. 282, 71 A.3d 465 (2013); Bronsen v. Dawes County,
272 Neb. 320, 722 N.W.2d 17 (2006) (also assigning other reasons). But see
Auman v. School Dist. of Stanley-Boyd, 248 Wis.2d 548, 635 N.W.2d 762
(2001).
212 See Harrison v. Middlesex Water Co., 80 N.J. 391, 403 A.2d 910
(1979); Stone v. York Haven Power Co., 561 Pa. 189, 749 A.2d 452 (2000)
(the statutory immunity, deemed inapplicable to highly developed
recreational areas, applied to a lake but not to the dam that created it).
213 See Anderson v. City of Springfield, 406 Mass. 632, 549 N.E.2d
1127 (1990); Ballard v. Ypsilanti Tp., 457 Mich. 564, 577 N.W.2d 890
(1998).
214 E.g., Skinner v. South Carolina Dep’t of Transp., 383 S.C. 520, 681
S.E.2d 871 (2009) (landowner owed no duty to motorists with respect to
naturally-occurring ruts on the shoulder of road that caused car accident);
see Restatement Second of Torts § 363 (1965). Cf. Restatement Third of
Torts (Liability for Physical and Emotional Harm) § 54(b) (2012) (for
natural conditions on land that pose a risk of physical harm to those
outside the land, the landowner has a duty of reasonable care if the land is
commercial, but otherwise owes such a duty only if the he knows of the
risk, or if the risk is obvious to him).
215 See Anderson v. Fox Hill Village Homeowners Corp., 424 Mass.
365, 676 N.E.2d 821 (1997) (“As a general rule, there is no duty by a
landowner to remove a natural accumulation of snow and ice.”); Tyrrell v.
Investment Associates, Inc., 16 Ohio App.3d 47, 474 N.E.2d 621 (1984)
(duty to protect business invitee only from non-natural accumulations of
snow and ice).
216 Ken Cowden Chevrolet, Inc. v. Corts, 112 Mich.App. 570, 316
N.W.2d 259 (1982) (land in natural condition blocked view and caused
erosion, no liability for nuisance).
217 Merriam v. McConnell, 31 Ill.App.2d 241, 175 N.E.2d 293, 83
A.L.R.2d 931 (1961) (trees that hosted insects that then migrated to
plaintiff’s land not a nuisance); Denison Parking, Inc. v. Davis, 861 N.E.2d
1276 (Ind. App. 2007).
218 See, e.g., Luchejko v. City of Hoboken, 207 N.J. 191, 23 A.3d 912
(2011). Even when an ordinance compels removal, it is usually interpreted
as imposing a duty to assist the city, not a duty to individuals who may be
injured. E.g., Lopatkovich v. City of Tiffin, 28 Ohio St.3d 204, 503 N.E.2d
154 (1986).
Emotional Harm) § 54 & cmt. c (2012) (a land possessor has no duty with
respect to a risk posed by a condition on an adjacent public walkway, as
long as the possessor did not create the risk, unless the land is
commercial); Wyso v. Full Moon Tide, LLC, 78 A.3d 747 (R.I. 2013).
220 See Cranshaw v. Cumberland Farms, Inc., 613 F.Supp.2d 147 (D.
Mass. 2009) (Massachusetts law).
221 See Davis v. Westwood Group, 420 Mass. 739, 652 N.E.2d 567
(1995) (placement of parking lot for business across a dangerous highway;
not actionable); A landowner may have some special relationship to the
plaintiff, however, that generates some duty of protection outside the land.
See Chapter 26.
Harm) § 54(b) (2012).
223 Id., cmt. c.
224 Compare, e.g., Williams v. Davis, 974 So.2d 1052 (Fla. 2007)
(residential property owner has no duty to cut back foliage on his property
that obscures drivers’ view, unless foliage actually extends into the public
right of way and creates a foreseeable hazard to traffic), with Whitt v.
Silverman, 788 So.2d 210 (Fla. 2001) (pedestrians were struck and killed
when motorist failed to see them because of foliage on defendant’s
commercial service station property; landowners owed duty to pedestrians
to cut foliage on their property to provide a safe egress of vehicles from the
premises).
225 If the trees have been planted, they may come under the rule for
artificial rather than natural conditions. See Carver v. Salt River Valley
Water Users’ Ass’n, 104 Ariz. 513, 456 P.2d 371 (1969); Rosengren v. City
of Seattle, 149 Wash. App. 565, 205 P.3d 909 (2009).
226 On the reverse facts, where the landowner knows that a
dangerous tree on adjacent land may fall on visitors on his own land, New
York has said the landowner owes no duty to warn his visitors who are in
the dangers area. Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 814
N.E.2d 419, 781 N.Y.S.2d 249 (2004).
227 E.g., Vallinet v. Eskew, 574 N.E.2d 283 (Ind. 1991); Staples v.
Duell, 494 S.E.2d 639, 329 S.C. 503 (Ct. App. 1997).
228 Hensley v. Montgomery County, 25 Md.App. 361, 334 A.2d 542, 94
A.L.R.3d 1148 (1975) (concluding that suburban forest land was more like
rural land).
229 See Lemon v. Edwards, 344 S.W.2d 822 (Ky. 1961). Note, however,
that if the landowner is a state or federal government, the defendant may
retain an immunity for failure to inspect and remove dead trees from the
land. E.g., Com., Transp. Cabinet, Dep’t of Highways v. Sexton, 256
S.W.3d 29 (Ky. 2008) (inspection and removal of dead trees a discretionary
act, leaving state immune from suit). See generally Chapter 22.
230 E.g., Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996); see
generally William J. Appel, Annotation, Liability of Private Landowner for
Vegetation Obscuring View at Highway or Street Intersection, 69
A.L.R.4th 1092 (1990). Cf. Hale v. Ostrow, 166 S.W.3d 713 (Tenn. 2005)
(overgrown foliage blocked plaintiff’s way on adjacent walkway); Williams
v. Davis, 974 So.2d 1052 (Fla. 2007) (placing commercial landowners and
residential landowners under different duties to trim foliage).
231 See Coburn v. City of Tucson, 143 Ariz. 50, 691 P.2d 1078 (1984);
Whitt v. Silverman, 788 So.2d 210 (Fla. 2001) (“general” foreseeability of
risk establishes duty; remaining issues of breach and proximate cause are
fact-specific); Inglehart v. Board of County Com’rs of Rogers County, 60
P.3d 497 (Okla. 2002); Donaca v. Curry Cnty., 303 Or. 30, 734 P.2d 1339
(1987).
232 Landowners and possessors owe a duty to neighboring landowners
not to create a nuisance, that is, a serious interference with their use and
enjoyment of land by pollution or the like. On the whole, nuisance law
addresses risks to the use and enjoyment and economic rights rather than
risks of physical harm to individuals. See Chapter 30.
233 Restatement Second of Torts § 371 (1965); Restatement Third of
Torts (Liability for Physical and Emotional Harm) § 54(a) & cmt. b (2012).
234 Cf. Bradford v. Universal Const. Co., 644 So.2d 864 (Ala. 1994)
(plywood sheet blown by heavy wind).
235 Roberts v. Weber & Sons, Co., 248 Neb. 243, 533 N.W.2d 664
(1995) (applying res ipsa loquitur). Even where fencing-in statutes have
been repealed, liability for negligence in allowing livestock to roam the
highways is still possible. Klobnak v. Wildwood Hills, Inc., 688 N.W.2d 799
(Iowa 2004). Further, open-range laws themselves may not protect a
landowner whose cattle stray onto public highways and remain there
because of the landowner’s negligence. Larson-Murphy v. Steiner, 303
Mont. 96, 15 P.3d 1205 (2000).
236 Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006);
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008). Most
states have rejected liability on these facts, however, for a variety of
reasons. See, e.g., Martin v. Cincinnati Gas and Elec. Co., 561 F.3d 439
(6th Cir. 2009); Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689
(Iowa 2009); In re Certified Question from the Fourteenth District Court of
Appeals of Texas, 479 Mich. 498, 740 N.W.2d 206 (2007); In re New York
City Asbestos Litigation, 5 N.Y.3d 486, 840 N.E.2d 115 (2005).
237 Volpe v. Gallagher, 821 A.2d 699 (R.I. 2003) (mother as landowner
permitting dangerous adult son to live with her and (the jury could find) to
store weapons, which he used to shoot a neighbor); Restatement Second of
Torts § 318 (1965). On the duty to control others generally, see Chapter 26.
238 Pritchard v. Mabrey, 358 Mass. 137, 260 N.E.2d 712 (1970).
239 Rosengren v. City of Seattle, 149 Wash.App. 565, 205 P.3d 909
(2009).
240 See Breger v. City of New York, 297 A.D.2d 770, 747 N.Y.S.2d 577
(2002) (creating the danger or causing the defect in the public way through
special use such as use of the public way as a driveway to defendant’s
property).
241 Rose v. Provo City, 67 P.3d 1017 (Utah. Ct. App. 2003) (even
though landowner did not create the danger, use of the dangerous public
property as a driveway to owner’s parking lot justified imposition of duty).
242 See Largosa v. Ford Motor Co., 708 N.E.2d 1219, 237 Ill.Dec. 179
(1999) (landowner-operating of commercial bungee jumping business
adjacent to the highway not responsible for accidents resulting when
motorists gaped at jumpers). Cf. Haymon v. Pettit, 9 N.Y.3d 324, 880
N.E.2d 416, 849 N.Y.S.2d 872 (2007) (baseball park operator owed no duty
to warn or protect a non-patron spectator who was hit by a car while
chasing a foul ball hit out of the stadium on a public street).
243 E.g., Military Highway Water Supply Corp. v. Morin, 156 S.W.3d
569 (Tex. 2005) (no duty owed to motorist who hit a horse on the road,
then traveled 500 feet off the road, where he was injured by an artificial
condition on defendant’s land; motorist must be “traveling with reasonable
care” and “foreseeably deviating from the highway in the ordinary course
of travel” for a duty to arise).
245 See, e.g., Witmat Development Corp. v. Dickison, 907 N.E.2d 170
(Ind. App. 2009).
246 See, e.g., Keller v. City of Spokane, 44 P.3d 845 (Wash. 2002)
(city’s duty to provide reasonably safe intersection was not limited to fault-
free plaintiffs; comparative negligence, not a no-duty rule, would apply to
account for highway user’s negligence).
247 See City of McAllen v. De La Garza, 898 S.W.2d 809 (Tex. 1995).
248 Cf. Restatement Second of Torts § 368, cmt. h (1965).
249 See Memphis Light, Gas and Water Div. v. Goss, 494 S.W.2d 766
(Tenn. 1973) (question of fact whether position of pole, nine inches from
the road, with guy wires less than a foot from the road, was an obstruction
unreasonably dangerous to motorists).
250 See, e.g., Gouge v. Central Illinois Public Service Co.,144 Ill.2d
535, 582 N.E.2d 108 (1991) (not reasonably foreseeable that an automobile
would leave the roadway and strike a pole 15 feet away, causing the pole
to fall away from the road and injure the plaintiff).
251 See, e.g., Coates v. Southern Maryland Co-op., Inc., 354 Md. 499,
731 A.2d 931 (1999) (no liability where utility pole was placed three feet
from the road; distance was only one factor in the foreseeability analysis);
Board of County Com’rs of Cecil County v. Dorman, 187 Md. App. 443, 979
A.2d 167 (2009) (no liability where pole was two and one-half feet off
county road; motorist’s striking of pole was nonetheless not reasonably
foreseeable, based on evidence that no one had struck that pole in 40
years).
252 E.g., Turner v. Ohio Bell Tel. Co., 118 Ohio St.3d 215, 887 N.E.2d
1158 (2008) (no liability for pole placed on highway right-of-way where
public utility had obtained permits to install the pole there, and pole did
not interfere with the usual course of travel). See also Seals v. County of
Morris, 210 N.J. 157, 42 A.3d 157 (2012) (private utility was not immune
from liability for negligence in placing an electric pole, interpreting
governmental immunity statute).
253 See Coates v. Southern Maryland Coop., Inc., 354 Md. 499, 731
A.2d 931 (1999) (“We do not wish, or intend, to establish a law that
provides an absolute immunity for utility companies…. Nor, however, are
we willing to create the prospect of a damage award against a utility every
time someone runs off the road and strikes a pole.”).
254 E.g., Jackson v. Scheible, 902 N.E.2d 807 (Ind. 2009) (vendor owes
no duty to protect from a dangerous condition, because vendor no longer
controls the condition of the property).
255 Shifting responsibility: see § 213. The rules are commonly
explained by the maxim caveat emptor, let the buyer beware, but so far as
liability to third persons is concerned, they seem to represent the
expectations of the parties to the sale or lease.
256 See, e.g., O’Connor v. Altus, 67 N.J. 106, 335 A.2d 545 (1975)
(distinguishing a former owner from a former owner who was also a
builder); Restatement Second of Torts § 352 (1965); Emile F. Short,
Annotation, Liability of Vendor or Grantor of Real Estate for Personal
Injury to Purchaser or Third Person Due to Defective Condition of
Premises, 48 A.L.R.3d 1027 (1973).
258 Id. § 373 (if the vendor creates or conceals the condition, his
responsibility continues until the purchaser both discovers and has
opportunity to make the condition safe; if he merely permits a dangerous
condition to remain, his responsibility terminates when the purchaser has
reasonable opportunity to discover the danger).
259 On the whole topic, see Jean C. Love, Landlord’s Liability for
Defective Premises: Caveat Lessee, Negligence, or Strict Liability?, 1975
Wis. L. Rev. 19.
260 See Chapter 26.
261 Shump v. First Continental-Robinwood Associates, 71 Ohio St.3d
414, 644 N.E.2d 291 (1994) (breach of duty to tenant would be breach to
tenant’s guest); Rittenour v. Gibson, 656 N.W.2d 691 (N.D. 2003) (landlord
who knows of dangerous condition on leased premises owes duty to warn
tenant’s guest, and, if tenant does not know of the danger, tenant herself);
Ortega v. Flaim, 902 P.2d 199 (Wyo. 1995) (no duty to tenant, no duty to
tenant’s guest).
263 Id. § 356. Thus in the absence of an exception, the landlord has no
duty to provide safety features on upper-story windows, even when he
leases to families with small children. See Chiu v. City of Portland, 788
A.2d 183 (Me. 2002) (but finding window was in landlord’s control).
264 In Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 858 N.E.2d 1127,
825 N.Y.S.2d 422 (2006), the court held that a radiator without a cover
was not an unreasonably hazardous condition; thus the landlord had no
duty to “repair” it by providing a cover.
265 Restatement Second of Torts § 358 (1965). See, e.g., Heynen v.
Fairbanks, 293 P.3d 470 (Alaska 2013). Courts often say that the
dangerous condition must have been actually known by the landlord. E.g.,
Oretga v. Flaim, 902 P.2d 199 (Wyo. 1995). If this is to be taken literally,
the landlord’s “reason to know” will not be enough. The Restatement
Third’s position is that a landlord owes a duty to disclose to the lessee any
dangerous condition that poses a risk to entrants, exists when the lessee
takes possession, is latent and unknown to the lessee, and is “known or
should be known” to the landlord. Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 53(c) (2012).
266 See, e.g., Ayala v. B & B Realty Co., 32 Conn. Super. 58, 337 A.2d
330 (1974); Dowler v. Boczkowski, 148 N.J. 512, 691 A.2d 314 (1997);
Munzi v. Kennedy, 538 A.2d 1015 (R.I. 1988).
267 Restatement Second of Torts § 358 (1965) (if the landlord does not
actively conceal the condition, his responsibility terminates when the
tenant has reasonable opportunity to discover the condition).
268 Id. § 357. See Meier v. D’Ambose, 419 N.J. Super. 439, 17 A.3d 271
(App. Div. 2011), certification denied, 208 N.J. 370, 29 A.3d 742 (2011)
(landlord owed duty to tenant to maintain resident’s furnace, and to
inspect it periodically for defects, where lease explicitly required landlord
to keep the furnace clean). Statutes may impose a duty of reasonable care
on the landlord to remedy unsafe conditions upon receipt of notice of such
conditions. In Bishop v. TES Realty Trust, 459 Mass. 9, 942 N.E.2d 173
(2011), the court extended the state statute to commercial landlords as
well as residential ones, in a case in which ceiling plaster fell on a
commercial tenant and injured her.
269 E.g., Leavitt v. Twin County Rental Co., 222 N.C. 81, 21 S.E.2d
890 (1942).
270 E.g., Childress v. Bowser, 546 N.E.2d 1221 (Ind. 1989) (covenant
to repair could be inferred from landlord’s telling tenant not to do anything
to the apartment, and later promising to make repairs).
271 E.g., Markarian v. Simonian, 373 Mass. 669, 369 N.E.2d 718
(1977) (negligent installation of window screens; child fell from window);
272 See McKenzie v. Egge, 207 Md. 1, 113 A.2d 95 (1955); Juarez v.
Wavecrest Management Team Ltd., 88 N.Y.2d 628, 649 N.Y.S.2d 115, 672
N.E.2d 135 (1996) (lead-based paint; stating notice requirement both for
contractual and statutory duty of repair); Charette v. Santspree, 68 A.D.3d
1583, 893 N.Y.S.2d 315 (2009) (landlord lacked actual knowledge that
lead-based paint was chipping or peeling inside tenant’s apartment, but
fact issue whether landlords had either actual or constructive knowledge
that paint was peeling in common areas).
273 Repairs negligently completed before the lease commences will not
bring the landlord under this rule. Casey v. Estes, 657 So.2d 845 (Ala.
1995).
275 E.g., Durkin v. Hansen, 313 S.C. 343, 437 S.E.2d 550 (Ct. App.
1993) (landlord’s carpet cleaning left slippery soap on the kitchen tile floor
with predictable results).
276 In Ginsberg v. Wineman, 314 Mich. 1, 22 N.W.2d 49 (1946), the
landlord’s agent purported to make a stair safe but (as the trier could find)
actually only reinserted nails in holes that were loose, then told the tenant
the stair was repaired. The tenant’s employee, who was badly injured
when the stair gave way, was allowed to recover.
277 Restatement Second of Torts § 359 (1965); see Lopez v. Superior
Court, 45 Cal.App.4th 705, 52 Cal.Rptr.2d 821 (1996). The Third
Restatement places a landlord under a duty of reasonable care for any
dangerous condition on the leased premises at the time the lessee takes
possession, if the lease is for a purpose that includes admitting the public
to the premises and the landlord has reason to believe that the lessee will
admit persons onto the premises without rectifying the dangerous
condition. Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 53(d) (2012).
278 See Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d
284 (Tex. 1996) (lessor of rodeo arena was not negligent in failing to pick
all rocks on its dirt floor).
279 Rodrigue v. Rodrigue, 694 A.2d 924 (Me. 1997); Restatement
Second of Torts § 360 (1965); Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 53(a) (2012).
280 E.g., Charette v. Santspree, 68 A.D.3d 1583, 893 N.Y.S.2d 315
(2009) (fact issue whether landlords had either actual or constructive
knowledge that lead-based paint was peeling in common areas of
apartment).
281 See Restatement Second of Torts § 361 (1965); Restatement
Second of Property § 17.4 (1976).
283 Leavitt v. Glick Realty Corp., 362 Mass. 370, 285 N.E.2d 786
(1972) (subtenant died of smoke inhalation from fire caused by wiring in
the ceiling of the apartment). Cf. Coleman v. Steinberg, 54 N.J. 58, 253
A.2d 167 (1969) (heating system for all tenants caused harm to child in
one apartment).
284 Chiu v. City of Portland, 788 A.2d 183 (Me. 2002) (jury question as
to landlord’s control of acrylic window dangerously fitted so that it would
easily pop out). But the lessor’s “explicit reservation of the authority to
enter the premises and to make repairs is insufficient to constitute
retention of control”; and “the landlord’s making of prior repairs is also
insufficient,” as is “the landlord’s right to approve the air conditioning
contractor.” Settles v. Redstone Development Corp., 797 A.2d 692 (D.C.
2002).
285 Pagelsdorf v. Safeco Ins. Co. of America, 91 Wis.2d 734, 284
N.W.2d 55 (1979); Favreau v. Miller, 156 Vt. 222, 591 A.2d 68 (1991). In
Tagle v. Jakob, 97 N.Y.2d 165, 763 N.E.2d 107, 737 N.Y.S. 2d 331 (2001),
the court approached a claim brought against a landlord by a tenant’s
guest as part of the reasonable care regime it had adopted for landowners.
See § 20.9. The Third Restatement adopts a general duty of reasonable
care for lessors, owed to the lessee and all other entrants on the leased
premises, with narrow exceptions. See Restatement Third of Torts
(Liability for Physical and Emotional Harm) § 53 (2012).
286 Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis.2d 44, 596 N.W.2d
456 (1999).
287 E.g., Pole Realty Co. v. Sorrells, 84 Ill.2d 178, 417 N.E.2d 1297, 49
Ill.Dec. 283 (1981) (warranty applies to single-family dwellings as well as
to multiple-unit dwelling structures); Scott v. Garfield, 454 Mass. 790, 912
N.E.2d 1000 (2009) (allowing visitor to recover damages caused by
landlord’s breach of the implied warranty of habitability); Kline v. Burns,
111 N.H. 87, 276 A.2d 248 (1971) (implied warranty of habitability in an
apartment rental); see Mark S. Dennison, Cause of Action for Breach of
Implied Warranty of Habitability in Residential Lease, 25 Causes of
Action 2d 493 (2004); Jonathan M. Purver, Annotation, Modern Status of
Rules as to Existence of Implied Warranty of Habitability or Fitness for
Use of Leased Premises, 40 A.L.R.3d 646 (1972). Several states have
refused to recognize the warranty. E.g., Murphy v. Hendrix, 500 So.2d 8
(Ala. 1986) (concluding that adoption of such a rule is for the legislature);
Moglia v. McNeil Co., 270 Neb. 241, 700 N.W.2d 608 (2005); Ortega v.
Flaim, 902 P.2d 199 (Wyo. 1995).
288 See Thomas M. Fleming, Annotation, Implied Warranty of Fitness
or Suitability in Commercial Leases—Modern Status, 76 A.L.R.4th 928
(1990).
289 Estate of Vazquez v. Hepner, 564 N.W.2d 426 (Iowa 1997).
290 E.g., Green v. Superior Court, 10 Cal.3d 616, 111 Cal.Rptr. 704,
517 P.2d 1168 (1974).
291 Peterson v. Superior Court, 10 Cal.4th 1185, 899 P.2d 905, 43
Cal.Rptr.2d 836 (1995), overruling Becker v. IRM Corp., 38 Cal.3d 454, 213
Cal.Rptr. 213, 698 P.2d 116 (1985); Martin v. Rankin Circle Apartments,
941 So.2d 854 (Miss. App. 2006) (suit on warranty of habitability is
essentially a negligence action); Antwaun A. v. Heritage Mut. Ins. Co., 228
Wis.2d 44, 596 N.W.2d 456 (1999). However, defects that threaten
personal safety may be actionable, not because injury results but because
the premises were worth less due to the defect. In that case, damages
would be measured by the difference between the value of the premises as
warranted and the value actually received. Williard v. Parsons Hill P’ship,
178 Vt. 300, 313, 882 A.2d 1213, 1222 (2005).
292 Peterson v. Superior Court, 10 Cal.4th 1185, 899 P.2d 905, 43
Cal.Rptr.2d 836 (1995); Estate of Vazquez v. Hepner, 564 N.W.2d 426
(Iowa 1997); Benik v. Hatcher, 358 Md. 507, 750 A.2d 10 (2000).
293 See Scott v. Garfield, 454 Mass. 790, 912 N.E.2d 1000 (2009);
contra, Johnson v. Scandia Associates, Inc., 717 N.E.2d 24 (Ind. 1999)
(implied warranty “is not imposed by law on every residential lease
contract, but may be implied in fact in the agreement between landlord
and tenant”).
294 E.g., Gore v. People’s Sav. Bank, 235 Conn. 360, 665 A. 2d 1341
(1995); Childs v. Purll, 882 A.2d 227 (D.C. 2005) (liability for violation of
the statute if landlord reasonably should have known of the condition);
Charette v. Santspree, 68 A.D.3d 1583, 893 N.Y.S.2d 315 (2009) (landlord
must have either actual or constructive notice that paint was chipping and
peeling in common areas of the building to be liable to tenant’s child
allegedly poisoned by lead paint).
493
Chapter 21
LIABILITY OF HEALTH CARE

PROVIDERS
Analysis
A. MEDICAL MALPRACTICE
3. Standards of Care and Attendant Proof Requirements
4. Informed Consent
§ 21.9 Informed Consent: Underlying Principle and Elements
§ 21.11 Particular Types of Information to Be Disclosed
§ 21.12 The Causation Requirement in Informed Consent Cases
B. HOSPITALS AND MANAGED CARE ORGANIZATIONS
§ 21.17 Mandatory Hospital Screening and Treatment: EMTALA
C. NURSING HOMES AND RESIDENTIAL FACILITIES
§ 21.19 Injuries in Nursing Homes and Other Care Facilities
§ 21.21 Common-Law Claims Against Nursing Homes
__________
494
A. MEDICAL MALPRACTICE
Medical malpractice actions sound in negligence. Thus they are
governed by the general negligence elements and are subject to the
ordinary negligence defenses such as comparative fault and
assumption of risk. Liability of health care providers, however, is
often limited because of special standards and proof requirements.
Duty: standard based on medical customs. A doctor-patient
relationship is necessary to establish a duty to provide active
medical care for the patient, with some exceptions.1 While some
modern courts have departed from it,2 the traditional duty to
patients is not the familiar duty of reasonable care, but rather the
duty to comply with medical customs or medical standards that
supposedly dictate the exact methods by which a medical
procedure is carried out.3 Because of this rule, expert testimony
must be introduced to show the medical standard.
Medical standards of which community? Originally, the
relevant medical community that would set the medical standard
of care by its custom was the local medical community where the
defendant practiced. Most courts now hold that the medical
community that sets the standard is broader, either the same
community of the defendant or a similar one.4 Some courts have
adopted a national medical community standard.5 Some special
rules may govern the liability of doctors who are hospital
residents.6
Different schools of thought and specialists. Even within the
community of medical doctors, there may be two different schools
of thought about how to perform a given procedure. If both views
have substantial acceptance, the physician who follows either one
is deemed not negligent.7 Specialists such as orthopedic surgeons
are governed by the national standards of their specialty.8
Expert testimony requirement. Except where the defendant’s
negligence is obvious even to a layman or the res ipsa loquitur
rules apply,9 the plaintiff is required to produce expert testimony
to prove breach of the standard of care and usually also to prove
factual
495
causation.10 Under the traditional medical standard, the

expert’s testimony must establish the medical custom or medical
standard of care, such as a custom to locate a certain nerve before
cutting nearby11 or the custom to refer to a specialist when the
patient has a given condition.12 If the reasonable care standard
applies instead, the expert might be permitted to testify
differently, perhaps that the risk of the procedure adopted by the
defendant was high and the benefits correspondingly low so as to
warrant an inference of negligence without appeal to medical
custom.
Informed consent. Informed consent claims are somewhat
different. The gist of the informed consent claim is that the
physician failed to provide information to the patient, usually
about the risk of the proposed procedure or about safer
alternatives.13 In these cases, the patient suffers an injury from a
medical procedure, but not because the procedure was negligently
performed. The plaintiff’s claim is that she, or a reasonable person,
would have refused consent to the procedure had she been given
appropriate information.14 Some courts require the physician to
disclose all material information, while others say that what the
physician must disclose is determined by medical custom, not by
what is relevant to the patient’s decision-making.15
Emergencies. Statutes generally provide that physicians and
other health care providers are not liable for negligence when they
act in an emergency.16 Many other statutes, especially those
growing out of perceived medical malpractice crises, offer other
advantages to doctors and others in the health care industry, such
as limits on damages that can prevent seriously injured persons
from obtaining full compensation.17
Tort duties are often affected by a defendant’s professional
status. Under traditional rules, physicians owe a duty of care set
by the custom of their profession rather than a duty of reasonable
care under the circumstances.18 Other medical professionals, such
as
496
nurses,19 physician assistants,20 pharmacists,21 physical

therapists,22 dentists,23 mental health professionals24 and licensed
practitioners like chiropractors and podiatrists25 have been held to
owe a similar professional duty. A number of non-medical
professionals, such as architects,26 engineers,27 lawyers,28 social
workers29 and even sports coaches,30 owe their clients the care
provided or generally accepted as the standard by qualified
practitioners in the same profession. Some courts are now re-
evaluating this “professional duty” rule in favor of a general
standard of the reasonable person under the circumstances,31
which would require physicians to use the knowledge and skill
they actually possess as well as the knowledge and skill they
should possess, whether or not other physicians in the relevant
community of physicians used such skill.
Three important points must be made about the professional
status of a defendant.
First, favoritism is not the legal or moral basis for any special
and favorable rules that are applied to professionals. If there is a
basis for special rules protecting professionals, it lies in the
relationship and expectation of the parties, for which professional
status is a marker, not in the defendant’s elite status in itself.
Second, courts that state limited duties or special standards of
care for professionals may really have in mind only a specific
application of the general rule that everyone, professional or not, is
obliged to use reasonable care under the circumstances. In many
instances, the defendant’s profession is a relevant “circumstance.”
For example, a professional physician who is treating a patient,
would be expected to use all the special expertise he has as a
professional. But the principle is not distinctively applied to
professionals; it applies to non-professionals as well. Given a
recognized risk, all reasonable persons should use the knowledge
and skill at their disposal. In this light, it
497
seems probable that if a court tells us that the dog catcher is

obliged to use the care of dog-catchers, it means only to say that
reasonable care is required, not to say that a community of
negligent dog-catchers can set their own lax standards.
Third, the defendant’s professional or expert status, whether as
a physician or a dog catcher, is a good flag to warn that technical
proof, perhaps by way of qualified experts, may be required to show
negligence. That is not because professionals are entitled to escape
responsibility for negligent and harmful acts, but because in many
instances judges and juries will not know when a professional is
negligent unless they hear expert testimony. Except for the
sometime need for technical evidence, the ordinary duties of
reasonable care could suffice for professionals as well as others. It
is possible that some of the decisions are moving in this direction.32

Courts often say that a medical malpractice action does not lie
unless the parties are in a doctor-patient relationship; if there is no
such relationship, the doctor is under no medical duty to the
putative patient,33 with some qualifications. In the usual case, the
doctor-patient relationship is formed by the doctor’s undertaking34
to act for the benefit of the patient35 or with her express or implied
consent or that of her representative. The duty is of course limited
by the scope of the undertaking.36 The same principle means that
the physician is not subject to malpractice liability for injury
inflicted upon a patient outside the scope of his professional
relationship unless an exception applies.37 In the absence of
statute or exception, the same essential principle applies to
hospitals that have no relationship to the plaintiff.38
Under these rules, when a patient’s physician consults another
doctor but does not employ him, the consulted doctor who does not
see the patient, perform any tests, or
498
otherwise act except to give advice he knows will be followed,

has no doctor-patient relationship with, and no duty to the patient
on whose behalf he was consulted.39
However, contemporary ways of delivering health care compel
some adjustments in our conception of the doctor-patient
relationship. A hospital patient may be treated by whole teams of
health care providers, or may be handed off from one to another,
raising questions about the duties of each.40 Telephone or on-line
consultations may establish a doctor-patient relationship and
hence a duty quite outside the traditional face-to-face encounter.41
The physician’s contract with someone other than the patient, such
as a hospital, may count as an undertaking of a physician-patient
relationship with persons who appropriately present themselves
for hospital care, thus requiring the physician to provide
appropriate supervision for patients he has never seen.42
When a duty exists without a doctor-patient relationship. On its
face, the rule requiring a doctor-patient relationship is merely a
specific application of a very general tort principle. Defendants who
have neither committed affirmative acts nor caused harm are not
compelled to take affirmative steps to protect others unless an
exception applies. One exception is that defendants who have
undertaken to protect the plaintiff are under a duty to use care to
do so in certain circumstances. Another is that defendants who
stand in a special relationship with the plaintiff (or with some
tortfeasor who inflicts harm upon the plaintiff) are again under a
duty to use reasonable care.43 The physician is thus under a duty
of care even to non-patients in three broad categories of cases: (1)
when he engages in non-medical conduct that involves no
professional judgment, in which case ordinary negligence rules
apply;44 (2) when he undertakes by words or conduct to provide
medical advice for or attention to a person not previously his
patient;45 and (3) when he creates an unreasonable risk by positive
acts of negligence.46
499
Medical examinations on behalf of third persons. Doctors are

sometimes retained to examine prospective employees, prospective
insureds, or litigation claimants for the purpose of reporting to
their principals on the examinee’s bodily or mental condition. They
are not in the usual kind of physician-patient relationship, but
they may harm the examined plaintiff (1) by inflicting a dangerous
and negligent examination that directly causes harm, (2) by failing
to diagnose a serious condition, (3) by failing to advise the plaintiff
of a serious condition that was accurately diagnosed, or (4) by
reaching an erroneous conclusion that interferes with the
examinee’s economic prospects in employment, insurance, or
litigation.47
Liability to patient when third party has retained the doctor. In
the first category of cases, courts agree that when harm results
from the examination itself, the doctor or other professional, such
as a physical therapist, owes a duty of care.48 However, when the
examining physician negligently fails to diagnose a serious
condition with resulting harm or death,49 and sometimes even
when he diagnoses the condition but fails to advise the plaintiff,50
a number of courts have said that the physician is not liable
because he is not in a doctor-patient relationship with the plaintiff,
and that his sole duty is to the employer or insurer who retained
him. This seems unnecessarily stringent. The fact that one person
pays the health care provider should not determine whether
another person is the patient. The general rule, in fact, is that an
undertaking to a third person to act for the safety of the plaintiff is
generally sufficient to create a duty to the plaintiff.51 That rule
applies to physicians as well as others.52 Perhaps the core idea is
that the expectations of the plaintiff and undertakings of the
defendant should control. In accord with this view, some authority
has expressly held that a doctor who actually examines53 a patient
or reads his X-rays owes a duty of reasonable care in making a
diagnosis and in notifying the patient of serious medical conditions
within the scope of the examination he has undertaken.54 If the
physician has undertaken to provide care to a person or
500
created a reasonable expectation that he would do so, then

delivery of such care should be the order of the day, whether that
person is characterized as a patient or not.55
Duty to non-patients based on duty to patient. In some
instances, a physician’s patient may pose a threat of physical or
emotional harm to others. Perhaps the strongest case for holding
the physician to a duty of care to a third person is the one in which
the physician creates unreasonable risks to third persons by
negligently risking harm to his own patient.56 For example, the
patient drives a vehicle, but because of the physician prescribed
needless or inappropriate medication, the patient loses
consciousness and drives into the plaintiff. Some courts have
recognized a duty of care to the non-patient in such situations.57
Similarly, the physician may be liable for negligently failing to
diagnose the patient’s epilepsy or failing to warn the epileptic or
medicated patient against driving,58 and also when the physician
prescribes a drug that is counter-indicated because it would
incapacitate the patient-driver.59
Liability to non-patients has also been imposed when the
physician fails to use reasonable care to discover and reveal that
his patient has a contagious disease60 or a genetic condition that
may risk harm to others.61 The patient herself is entitled to have a
proper diagnosis and to know of it so she can minimize risks to
herself and others. Some courts simply reject liability to non-
patients without recognizing that fulfillment of the physician’s
duty to his own patient in these cases imposes no additional
burden.62 Others have said that imposing a duty to non-patients
would present the physician with a conflict between duties to his
patient and duties to non-patients.63 Such arguments are
inapplicable, however, when the physician’s duty of care to his own
patient calls for exactly the same diagnosis or treatment that
would also be safer for members of the
501
public.64 In this situation, there is neither a conflict of loyalties

nor any additional burden upon the physician; he satisfies his duty
to third persons when he satisfies his duty to his patient.
When a direct duty may be owed to non-patients. When a
condition of the physician’s patient puts others at risk, can the
physician be under a duty to use reasonable care for the safety of
those others, even when he has fulfilled his duty to his own
patient? Some cases have said so.65 For example, the physician
may be under a duty to use care to warn the non-patient of the
patient’s disease66 or assaultive purpose67 or even to control the
patient through commitment or otherwise.68 In the latter two
instances, involving physical dangers from a patient’s attack on the
plaintiff, the defendants are usually mental health providers, but
physicians might also owe the same duty.69 Courts have recognized
that imposing a duty might create a confidentiality problem, and
some have circumscribed the duty accordingly.70
The control rule. When judges perceive the physician’s alleged
negligence as a failure to control his patient (rather than, say, a
failure to warn his patient against driving), they may consider and
sometimes invoke the rule that one normally has no duty to control
others for the plaintiff’s benefit.71 This rule does not usually
dissolve the duty of care owed by the physician when he has a
special relationship with either the immediate tortfeasor (such as
the patient) or with the plaintiff herself.72 Thus a therapist who
discovers his patient’s intent to murder a non-patient owes a duty
in many states to warn the non-patient or take some other step for
her protection where the therapeutic standard of care would
dictate such steps.73 A few cases, however, hold to the contrary,
rejecting the duty altogether.74 The control rule is grounded in the
more general principle
502
that, absent an undertaking or special relationship, one is not

liable for mere nonfeasance, that is, for doing nothing to prevent
harm. But in some of the physician cases, courts have, consciously
or not, rejected a duty of reasonable care, even when the
physician’s alleged negligence consists of an active creation of a
risk, not mere nonfeasance.75
Outpatients. While courts have seldom invoked blanket no-duty
rules to defeat liability to nonpatients, they have sometimes found
ways to constrict liability. Some courts have created a special rule
of law declaring that a physician or therapist has no “control” over
outpatients as distinct from institutionalized patients. They go on
to hold that if the physician has no control, he owes no duty to
those the outpatient may harm.76 Control in some of these cases
does not seem to be a question about whether the physician could
in fact control the outcome or reasonably protect the third person.
It rather seems to be a rule of law that forecloses any scrutiny of
the actual facts. Not surprisingly, other authority rejects any rule
of law excluding duties arising from treatment of outpatients.77
Specifically identified plaintiffs. More commonly, cases
involving the patient’s threat to others turn, not on control itself,
but on the rule applied in some courts that a duty to control can be
invoked only by a specifically identified victim. On this basis, a
court might hold that while a physician may owe a duty to “control”
a patient to protect a member of the patient’s family, he does not
owe the duty to the public at large.78 Some cases may have applied
the identified-victim rule even when the physician’s negligence is a
failure to warn or to otherwise properly treat his own patient.79
However, in such cases the issue is not truly about control but
about information or about using ordinary care in medical
treatment. Applying the rule to cases like that seems to ignore the
fundamental point that no added burden is imposed when the
physician is held responsible for his failure to treat his own patient
properly. The rule as applied in such cases also ignores the
plaintiff’s claim that a dangerous driver or a murderous psychiatric
patient who should have been committed or medicated is a loose
cannon who may harm anyone at all, not just family members or
named victims.80 Thus while the identified-victim rule might be
justified if the physician is charged with taking on added
responsibilities beyond those to his own patient—warning others,
for example—it seems at least arguable that it has no sound basis
when the physician is asked only to do what reasonable care for his
patient requires anyway. In line with these comments, some courts
have rejected the identified-victim requirement.81
503
Balancing tests. Finally, some of the decisions rejecting liability

on the particular facts do so after considering several broadly
formulated factors, such as the relationship of the physician to
others involved, foreseeability of harm, and public policy
considerations.82 Where the proposed duty would require the
physician to warn nonpatients or pressure him to make extreme
treatment choices (like confinement of a dangerous patient), public
policy requires a degree of caution lest treatment, assumed to be
useful, would be disrupted. Perhaps the most significant policy is
that the physician should never be under a duty to third persons
that requires him to forego appropriate treatment of his own
patient. Perhaps this policy actually covers all the bases; the entire
problem could be simplified by saying that the physician (a) never
owes care to a third person inconsistent with care owed to his own
patient, and (b) always owes a duty to avoid foreseeable and
unreasonable risks to third persons when that can be fulfilled by
properly treating his own patient and without taking on any
additional obligation.
3. Standards of Care and Attendant Proof

Requirements
The traditional professional-peer standard. Although some
courts have adopted the ordinary reasonable care standard in some
medical malpractice cases,83 the traditional standard for health
care practitioners is different, a “medical” standard of care. That
standard dictates a rule of proof: the plaintiff must ordinarily84
present expert evidence85 detailing the standard. In general, the
“standard” bears no resemblance to the usual standard in non-
medical cases—the standard of reasonable care under the
circumstances. Instead, the “standard” in medical cases is
conceived of as the specific procedure or medical conduct that the
relevant medical community considered to be acceptable at the
time of the alleged negligence86—for instance, the specific way to
make a cut in a surgical procedure,87 or the specific dosage of a
drug or injection,88 or the particular precautions to be taken under
given conditions.89 The medical standard may vary with the
locality as well as with the work the physician holds himself out as
competent to do.90
Medical custom and conclusory opinions as the standard. The
medical standard is often understood to be the medical custom or
practice with respect to the particular act
504
of diagnosis or treatment.91 However, courts do not ordinarily

survey actual behavior or customs of physicians.92 Instead, the
medical standard is often established by conclusory testimony of an
expert that specified conduct simply is “the standard.”93 Practically
speaking, the standard can be the custom or practice of the
relevant medical community, or it can be a qualified expert’s
opinion that does not refer to custom or practice at all and may not
even refer to any source.
Skill and knowledge. The medical standard is sometimes stated
by saying that physicians must exercise at least the skill,
knowledge, and care normally possessed and exercised by other
members of their profession94 in the same school of practice in the
relevant medical community.95 In spite of the “knowledge and skill
phraseology,” in practice, the physician’s actual conduct is what
counts, not his possession of abstract knowledge or skill. Thus his
failure of a board exam is not important if he has not departed
from accepted medical practice in his in diagnosis, technique, or
treatment.96
Referral. Medical doctors are generally under a duty to use
reasonable care to consult with, or to refer a patient to a specialist
when the physician knows or should know treatment or diagnosis
is beyond his competency or that specialist care is needed.97 The
same is true when diagnosis or treatment requires equipment the
first physician does not have available.98 Consequently, a
physician is subject to liability if he should refer the patient to
another health care provider for tests, diagnosis, or treatment but
fails to do so.99 Equally he is subject to liability if he refers the
patient to a physician he should know is inappropriate for the
patient’s care.100 The plaintiff must of course
505
provide evidence that referral would have been reasonably

likely to lead to a better outcome, or at least to improve his
chances.101
Application and scope of professional standard. Medical
standards ordinarily require the physician to exercise professional
care not only in diagnosis and treatment and referrals to a
specialist, but to keep appropriate medical records needed for
patient care,102 and to warn the patient when new developments
affect the patient’s past care.103 The medical standard applies only
to conduct of health-care providers acting within the ambit of their
professional work. The reasonable person standard applies to
ordinary non-medical negligence such as a hospital’s slippery
floors.104
Jury instructions. The usual jury instructions state the medical
standard of care, making due reference to the defendant’s specialty
or school of practice and incorporating the locality rule where that
rule is still followed. The jury is often told that the physician must
“possess and use the care, skill and knowledge ordinarily possessed
and used under like circumstances.”105 Consistent with the
medical custom standard, the jury may also be told that the
physician is negligent only if he failed to follow the medical conduct
of other physicians in similar circumstances.106 Sometimes courts
add that the physician must use ordinary care in applying
professional skills, knowledge and training.107
However, courts very often add a good deal of rhetoric that
repeatedly emphasizes instances of non-liability. For instance, the
trial judge may tell the jury that the plaintiff has the burden of
proving the standard of care and its breach, and then go on to
repeat the same point by saying that the law presumes the
physician exercised proper care.108 Other rhetorical instructions
are commonly given even where the plaintiff has never asserted
the liabilities the instruction negates. For example, trial judges
often say that the doctor-defendant is not required to exercise the
highest care, only the ordinary care of his profession;109 that the
physician is not liable for a bad result or for a mistake where he
acted in good faith; that medicine is an inexact science; or that the
physician is not an insurer of the plaintiff’s health or a guarantor
of her recovery.110 Such instructions
506
overemphasize the defendant’s position, especially when

repeated,111 and are affirmatively misleading. An instruction that
tells the jury that the physician is not liable for honest error or
good faith mistake injects subjective, good faith issues into the
objective negligence test and may lead the jury to think that bad
faith, not a departure from professional standards, is the test of
liability.112 Some courts have begun to reconsider the no-guarantee
instruction as well, holding that it should not be given when the
plaintiff has not actually asserted a guarantee,113 or that its use
should be constrained.114
The medical standard restated. The professional standard of
care is not identical to the reasonable person standard used in
most negligence cases.115 The professional standard asks the trier
only to determine whether the defendant’s specifically identified
conduct conformed to the medical standard or medical custom in
the relevant community with respect to the particular acts alleged
to be negligent.116 As long as a doctor followed the medical
standard or custom, he is not legally negligent under the medical
standard, regardless of how risky the custom might be. Conversely,
if he failed to follow the medical standard of care, he would be
negligent under that standard even in the absence of scientific
studies establishing the need for the precaution customarily
taken.117
Contrasting the reasonable person standard. The reasonable
person standard asks the trier to weigh the reasonableness, that is,
at least in part, to weigh the risks and utilities of the defendant’s
conduct118 as explained by competent expert evidence. It thus
appeals to science or evidence-based medicine as the standard.
Under the reasonable care test—the normal negligence standard—
a physician who ignores an inexpensive and risk-free diagnostic
test that might save a patient’s sight does not necessarily avoid
liability merely because other physicians also ignore the test.119
Under the medical custom test, in contrast, no physician could be
held accountable for ignoring science as long as other physicians
also do so.
Criticisms of traditional standard. The ordinary reasonable care
standard requires physicians, like others, to exercise any superior
knowledge or skill they actually possess,
507
even if ordinary people would not be so knowledgeable or

skillful.120 For this reason, the medical standard is not needed to
require healthcare providers to exercise the skills they hold
themselves out as having. The medical standard thus only changes
the ordinary tort law standard by reducing the duty owed when the
relevant medical custom calls for less care than is appropriate in
light of risks and benefits. Put differently, neither science nor
assessments of risks comes in to the picture when applying the
traditional medical standard. This departure from the standard of
reasonable care normally used in negligence cases has been
criticized as giving too much deference to the medical profession to
set its own standards121 and because there is often no “standard”
practice, or if there is, it is not really known to other physicians
who may testify.122
Rejecting medical custom, adopting reasonable care. A number
of courts have now said or implied that the standard of care for
health care providers is the reasonable care standard applied in
negligence law generally.123 Statutes also sometimes prescribe a
reasonable care standard.124 By definition, adoption of the
reasonable care standard is a rejection of the medical custom
standard. Medical custom, however, remains relevant as evidence
of what might count as reasonable care under the circumstances,
although it is not determinative if other evidence shows a lack of
reasonable care.
Consequences. Adoption of a reasonable care standard in
medical cases logically dictates several distinct and important
consequences: (1) New kinds of evidence would be admissible. The
plaintiff would not be required to adduce expert testimony showing
the medical custom, but instead would be permitted to show by any
competent evidence that the physician’s conduct subjected his
patient to unreasonable risks. Courts might even admit conclusory
testimony by experts that the physician’s treatment of his patient
was inappropriate or unreasonable.125 (2) The sufficiency of the
evidence of physician negligence would be judged by considering all
the competent evidence, not merely by assessing medical custom.
(3) Juries would be instructed to evaluate negligence under the
reasonable care standard, not the medical custom standard. In
each instance, medical custom would presumably represent
important but not conclusive evidence of what a reasonable
physician would do under the circumstances.
508

At one time, courts generally held that the professional
standard of care for medical doctors was the custom or standard
followed or professed by other doctors in the very same locality
where the doctor practiced.126 If a town’s six doctors all ignored
helpful new drugs for treatment of the plaintiff’s condition, none of
them would be guilty of medical malpractice for failing to prescribe
such a drug when it was needed.
One theory sometimes advanced for this result was that small-
town doctors might not have the latest equipment or training and
should not be liable merely for that reason. But the locality
standard did not necessarily apply to other professionals, and in
any event the reason given for it was spurious. Even without a
locality rule, the jury could have considered all the circumstances
bearing on the reasonableness of the physician’s conduct, including
limitations on equipment.127 A physician who lacks equipment or
training to treat a given patient need only refer the patient to a
more appropriate provider.128 Under none of the standards is the
physician or surgeon held to any level of care he has not
undertaken to give. Albert Schweitzer was not committing a tort
when he exercised reasonable care in a primitive clinic in
equatorial Africa. The rural general practitioner confronted with
an emergency requiring the skill of an orthopedic surgeon is not
held to the orthopedist’s standard of care, but that is not because
he practices in a rural rather than an urban community. It is
because, like all others, he is held to the standard he professes, not
some other.
Besides the faulty rationale for the same locality rule, courts
and writers often point out that today’s mainstream medical
doctors are all trained in the same basic way throughout the
country and all have access to continuing education and even to
instant computer guidance.129 Medical and scientific facts are the
same everywhere. These considerations, and perhaps a moral
revulsion at the idea that a small group of bad practitioners can
inflict substandard care on rural communities,130 have led most
states by statute or judicial decision to discard the same locality
test of the standard of care,131 although a few states continue to
use that test in some form.132
509
Except as commanded otherwise by a tort-reform statute, most

courts now look to the medical community in the same-or-similar
localities,133 in the state,134 or in the nation as a whole135 for
appropriate standards. In the last category, some courts do not
mention geography except to say that the locality might be
relevant as a circumstance to be considered in determining
whether the doctor exercised reasonable care.136
The national standard for specialists. Many medical doctors are
specialists who have additional training and experience and who
have been examined by a specialty board. For board-certified
medical specialists, the standard is usually said to be a single
national standard of the specialty involved. Medical training and
examination of board-certified specialists is the same without
regard to locality. Consequently, even a locality rule would refer
ultimately to the national standard when it comes to specialists.
Thus one who holds himself out as a specialist is held to the
standard of care set by the standards for the specialty, which are in
fact uniform and national.137 The recognition of these different
standards has important indirect consequences in determining
whether a physician in one specialty may testify about the
standard of care appropriate for a physician in another
specialty.138
The standard of care. Where the medical standard of care
applies, courts require the plaintiff to establish that standard by
expert testimony,139 unless res ipsa loquitur applies or negligence
is obvious.140 To establish a medical standard, the expert
testimony must ordinarily be specific rather than general.
Testimony does not state that the medical standard is “high care”
or “reasonable care” or “good medical care”; rather, it must state
that the particular diagnosis, treatment, or procedure in question
did or did not meet the “standards” of the medical community.141
For example, an expert might testify that the medical community’s
“standard” called for a diagnostic test that was not administered,
or called for the administration of a smaller dosage of an
anesthetic.
In many cases of scientifically bad medical judgment, it is
difficult to say that there is a customary standard or that anyone
knows what it is. If the plaintiff’s expert witness can testify only
that he was medically trained not to use the procedure used by the
defendant, that in his own judgment the defendant’s treatment
was wrong,142 that he
510
himself would not have used the procedure or would have used
a better one,143 or that all the doctors he knows agree that the
treatment was wrong,144 his testimony has not necessarily
established a standard. In that case, the plaintiff may find her case
dismissed. Even if the physician-witness testifies firmly to a
medical practice he deems to be the standard of care, his testimony
is not necessarily enough. If he adopts a different approach or
practice for himself, evidence of that fact may be admissible at
least on the issue of his credibility145 and perhaps even as bearing
on the standard of care.146
The locality rule and the standard of care. In some cases, the
physician-defendant himself testifies to or admits to the standard
of care claimed by the plaintiff.147 When he does not, the plaintiff’s
lawyer must show that her medical expert is qualified to give an
opinion about the medical standard. Under the same-locality rule,
if the defendant doctor practiced in Nantucket, any qualified
medical expert could testify about medical causation, which is a
scientific fact that does not vary with state boundaries. However,
only an expert who could state the standard or custom in
Nantucket could testify that the defendant’s conduct fell short of
that the Nantucket standard of care for physicians. The effect of
this rule was that the plaintiff suing a Nantucket doctor would
usually be required to find another Nantucket doctor who would
testify, or at least a non-local physician who somehow could show
that he knew the Nantucket standard.148 In many instances, the
plaintiff could obtain quite good evidence, but only from “outsiders”
who were not allowed to testify.149 The effect was that the
plaintiff’s claim was defeated.
Similar localities and national standards of care. When courts
began to hold that the relevant medical community included
similar localities or even the nation as a whole, the most
immediate practical effect was that physicians from other localities
were allowed to testify about the proper standard. However, rules
on expert testimony can undercut the adoption of a national or
other broader standard. In one national standard jurisdiction, an
expert witness testified to a standard, but failed to identify it as a
national standard. The court in effect assumed that the testimony
could have referred to a local rather than a national standard and
that the two were different. So the
511
plaintiff’s case was dismissed.150 And no matter what standard

of care is adopted, tort reform statutes may specifically preclude
testimony by experts outside the region.151
Testimony by a witness belonging to a different specialty or
school of medicine. Can an expert witness testify about the
standard of care appropriate for a defendant who practices a
different specialty, or even an entirely different kind of school of
healing? Courts have not agreed. One view requires the expert
witness not merely to know the standard applicable to the
defendant but to practice in a specialty or kind of practice that uses
substantially the same standard. Taken literally, this view means
that an orthopedic surgeon may not be heard in court on the
subject of podiatric standards, even if he knows the standard of
care for podiatrists.152 This approach, which does not merely
assess the sufficiency of evidence but excludes it altogether, may
become even more rigid under tort reform statutes.153 Other courts
have allowed a doctor to testify as to the standards governing
another school of practice when the standards are the same as to
the particular procedure in issue,154 or, more vaguely, when the
standards turn on matters that each of the two schools “share in
common in terms of education, training and licensure.”155 Still
others have permitted the expert to testify about the standard in a
different specialty or different community once he establishes his
knowledge of that standard.156 This latter, more liberal, view does
not make the differences in specialties irrelevant. It merely refuses
to automatically exclude testimony merely because it comes from a
physician with a different specialty. The trier of fact might still
conclude that the witness was not sufficiently informed to be
reliable and might reject his testimony as unpersuasive.
512
Nurses. Given that nurses are subject to the nursing standard

of care, it is no surprise that nurses have been permitted to testify
as experts on that standard157 and on hospitals standards, at least
so far as those standards are met by nurses.158 Although doctors
have sometimes been allowed to testify to the nursing standard of
care,159 testimony of nurses, no matter how qualified by training
and experience, has been held inadmissible or insufficient to
establish a standard of care for medical doctors.160 Testimony of
nurses on medical causation is also often rejected.161
Experts and factual cause. The plaintiff must always prove that
the medical defendant’s negligence was a factual cause of the
plaintiff’s harm, and doing so often requires expert testimony.162
For example, the trier of fact could not ordinarily find that a
psychiatrist’s negligent mode of treatment caused his patient to
commit suicide, without the aid of expert opinion to that effect.163
Similarly, without expert testimony on causation, the trier could
not find that a physician’s failure to notice an abnormal
electrocardiogram led to the patient’s heart attack.164 In such cases
the absence of expert testimony on causation dooms the plaintiff’s
claims even though the plaintiff has established negligence.165
Even with expert testimony, the plaintiff will also lose if that
testimony is itself is speculative or inadequate to show
causation.166 Where expert testimony as to medical causation is
required, it would seem to be a question of evidence whether any
given witness is qualified to give an opinion, but a number of
courts have made a blanket rule that nurses cannot give causal
testimony in cases against doctors.167
Scientific basis of medical testimony. In recent years, federal
and some state courts have increasingly excluded a great deal of
expert testimony on the ground that it is not
513
reliable, sometimes requiring scientific studies or experiments

before testimony is admitted at all.168 This approach has been
applied in medical malpractice cases as well.169 Some courts,
however, have given weight to the expert’s general experience,
even in the absence of others’ research on the subject.170 In
addition, some courts may admit a medical expert’s testimony
without subjecting it to special reliability rules at all if the expert’s
conclusion is based on application of accepted medical or scientific
principles, even though the conclusion itself has not been verified
by studies in the field.171 “Tort reform” statutes may, however,
exclude experts on the basis of mechanical criteria not necessarily
related to the experts’ reliability.172
4. Informed Consent
§ 21.9 Informed Consent: Underlying Principle
and Elements
Courts have recognized that the patient’s right of self-
determination implies a right to important information about the
nature of the medical procedure proposed. For example, patients or
their representatives173 are entitled to information about the risks
of the procedure, its necessity, and alternative procedures that
might be preferable. This is the general principle of informed
consent, the “bedrock of … respect for the individual’s right.”174
The patient who asserts that she was not given appropriate
medical information, such as information about risks of a medical
procedure, is asserting that, even if the physician was not
negligent in performing the procedure, he is liable for harmful
results because the patient would have refused consent and
avoided the harm had she been appropriately informed.175
Who owes the duty to inform. In consequence of these principles,
a duty to inform patients of certain information is usually placed
on one or more of the treating176 healthcare providers, including
physicians,177 surgeons,178 dentists179 and
514
chiropractors.180 Courts have held, however, that a hospital

that is not itself involved in securing consent has no duty to inform
or to supervise treating physician’s efforts to inform.181 On the
other hand, a hospital may undertake an enforceable duty to
initiate appropriate discussions.182 And federal statutes require
hospitals participating in experimental studies to secure informed
consent.183
Battery vs. negligence approaches. On the basis of the informed
consent principle, some courts hold that a physician who performs
a procedure upon the patient’s body without first providing
adequate information is subject to liability for battery.184 On
principles of autonomy and self-determination, human beings have
the right to determine what can be done to their own bodies.185
Consequently, a patient’s consent to the procedure or medical
treatment actually performed by the defendant operates to bar any
claim for battery,186 but equally patients have a right to refuse a
recommended medical procedure or treatment,187 even if it is
necessary to save the patient’s life.188 Under these rules, a surgeon
who operates without the appearance of consent189 is by definition
prima facie guilty of a battery.190 Consent procured by
misrepresentation of material facts191 or duress192 is also
ineffective and a medical procedure performed on the basis of such
a consent would also be a battery. The same idea applies when the
plaintiff consents only to an operation by Dr. A, but it is performed
in fact by Dr. B.193
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Most courts have now held that the patient whose claim is
grounded in lack of information has a claim for negligence, not for
battery.194 The negligence in the informed consent claim is not
negligence in performing a medical procedure, but rather
negligence in failing to explain its risks, alternatives, and other
related information.195 The battery claim is still viable, but only
when the patient did not consent at all, or when the treatment
administered was different from the one to which the patient
consented.196 Thus under the currently prevailing view, the scope
of the consent is critical in determining whether the claim is for
battery or for negligence. The patient who consents to an operation
on his right toe has a battery action if the surgeon operates on the
left toe instead. But the patient who consents to an operation on
his right toe without being informed that the operation entails a
serious risk that he will lose his leg must make out the informed
consent claim for negligent nondisclosure.
Negligence in performing procedure distinguished. Under
neither view, however, is the plaintiff required to prove negligence
in conducting the operation. If the elements of an informed consent
claim are proved under the applicable theory, the surgeon is liable
for the harm resulting even if he operated with consummate skill.
The wrong done is not a negligent operation but a failure to respect
the patient’s right of choice. The differences between the claim
based upon lack of informed consent and the ordinary medical
malpractice claim are striking, but the plaintiff very often presents
both claims together, often preferring to prevail on the malpractice
claim and using the informed consent claim as a backup. This
practice is useful for plaintiffs, but it does run some risks of
confusion and reversible error in instructions if the two claims are
not clearly separated.197
Elements. For many courts, the shift to a negligence theory
means that the plaintiff must prove five things: (1) nondisclosure of
required information,198 (2) actual damage (such as loss of a leg),
(3) resulting from risks about which the patient was not informed;
(4) factual cause, which is to say that the plaintiff would have
rejected the medical treatment if she had known the risk,199 and
(5) that reasonable persons, if properly informed, would have
rejected the proposed treatment.200
516

As to what must be disclosed to the patient, the courts are
divided into roughly two camps, between a “medical” and a
“materiality” standard of disclosure. Tabulating the position of
different states is inherently imprecise201 and may be even more so
when, as here, legislatures have intervened to enact specific
requirements. For what it is worth, however, a little more than
half the states, many under the command of a statute,202 appear to
adopt the medical standard of disclosure as a general rule rather
than the materiality standard,203 or alternatively specify major
limitations on the claim that are more demanding than the
materiality standard.204
The medical standard of disclosure. The older cases, and many
statutes, require the plaintiff to prove the medical standard of
disclosure. Under that standard, if medical custom205 requires no
disclosure, the doctor, though a fiduciary, owes no duty to divulge
information, no matter how critical it might be to the patient.206 If
the medical standard requires disclosure of one risk but not
another equally great, the rule entitles the plaintiff to half of the
relevant information, not all of it. The medical standard requires
expert testimony to establish the standard of disclosure,207
although possibly testimony by a physician in a related specialty
will be sufficient208 and the defendant may have the burden of
showing what the medical standard is.209 The burden of proof
could be decisive, because there may be no real custom of
disclosure at all.210
The materiality standard of disclosure. Beginning in 1972 when
three leading opinions broke with earlier decisions,211 courts
deciding the issue on first impression and independent of statutory
commands have tended to favor a duty to disclose all material
information, that is, information the physician can reasonably
expect a patient would
517
consider in determining whether to undergo the medical

procedure.212 These courts have insisted that “[r]espect for the
patient’s right of self-determination … demands a standard set by
law for physicians rather than one which physicians may or may
not impose upon themselves.”213 Further, the patient’s right to
weigh her subjective fears against the risks disclosed is a personal,
not a medical question, and it is “reserved to the patient alone.”214
For this reason, the patient is entitled to an explanation of the
different risks associated with the potential medical procedures
even if, on balance, medical judgment would clearly favor one
procedure over the other.215
Expert testimony under the materiality standard. Because a
medical standard is not involved in the materiality test, expert
testimony is not required. Disclosure is to be made when the
information is material to a decision, which is to say that the
physician must disclose information a reasonable patient would
want to be aware of in determining whether to proceed.216
Although experts are not required to prove materiality, an expert
may be required to show both that material, undisclosed
information existed and that the defendant should reasonably have
known about it.217 In other words, the medical standard governs
the questions whether a risk existed and the medical alternatives
and whether the doctor should have known of the undisclosed risk.
On a different plane entirely, expert testimony on the custom of
the medical community may be admitted as supplementary
information, although not to define the physician’s duty.218
The therapeutic exception or privilege. Some courts have
acknowledged a putative privilege to withhold information for
therapeutic reasons. The idea is that in some instances, if a
physician told the patient of the risk, the knowledge itself would
harm the patient. With this in mind, courts have said they would
recognize a therapeutic privilege of nondisclosure if the physician
shows that in the patient’s particular case, disclosure would be so
harmful that it would be against the patient’s best interests.219
Courts have warned themselves to be cautious should such a case
actually appear. They have said that the supposed privilege should
not be recognized merely because a physician fears that disclosure
of risks will lead the patient to make a bad decision. And even if
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disclosure by itself could seem to menace the patient’s health,

the physician may be obliged to make the disclosure to a
relative.220
§ 21.11 Particular Types of Information to Be
Disclosed
What must be disclosed under the medical standard depends on
medical evidence in the case. The materiality standard, in contrast,
depends mainly on the judge and jury’s judgment about what
reasonable people want to know before choosing to accept a medical
procedure. The materiality standard, not being a medical one,
requires no medical testimony to establish. If there is room for
debate about materiality the jury determines whether a reasonable
person would want to know the information that was withheld.221
However, plaintiff’s attorneys have at times introduced medical
opinion on what should be divulged, even in states following the
materiality standard.222 Although medical testimony is not
required to show what reasonable people would want to know, it is
usually required to show the existence or non-existence of risk, the
medical alternatives, and their respective prospects for success.223
Other kinds of evidence on materiality may be important in specific
cases.
Objective and subjective tests of materiality. The patient’s
subjective attitude toward certain risks or advantages may be
determinative on the materiality issue. If the patient attaches
special importance to some particular matter and the doctor knows
or should know it, that matter is material even if most other people
would not be concerned about it.224 For example, relatively few
people object to blood transfusions, but some do, and if the doctor
knows that the patient is one of the few, the matter is clearly
material to that patient. When the doctor could not be reasonably
expected to know of any special concerns the patient might have,
materiality is judged by the objective reasonable person standard.
Material information is that which “a reasonable patient would
consider in deciding whether to undergo the medical procedure,”225
even if such information is not by itself decisive.
Immaterial items. Medical doctors sometimes caricature the
informed consent rules by suggesting that they impose
preposterous obligations, such as an explanation about the size of
thread used in sutures. But the materiality rule does not require
detailed
519
disclosure of methods unless they are unusual or affect the

risks.226 Certainly the physician owes no obligation to provide the
patient a general medical education.227 Nor need he disclose
matters that the patient already knows, or those that the physician
reasonably believes she knows.228
Items generally to be disclosed. It is sometimes said that the
physician should disclose the diagnosis, the general nature of the
contemplated procedure, the material risks involved in the
procedure, the probability of the procedure’s success, the prognosis
if the procedure is not carried out, and the existence and risks of
any available options for medical treatment.229 Beyond this, the
physician may be required to disclose some information even if
there is no immediate medical procedure to be performed,
specifically a diagnosis of or test result showing that the plaintiff
has a disease.230 The list is obviously not exclusive.
Material risk. Whether a risk is objectively material depends
upon its severity and its likelihood of occurrence.231 “A very small
chance of death or serious disablement may well be significant; a
potential disability which dramatically outweighs the potential
benefit of therapy or the detriments of the existing malady” may
require discussion.232 The materiality of a risk is ordinarily for the
jury,233 but in some cases the risk is so remote or negligible that a
directed verdict or summary judgment is appropriate.234
The prognosis or probability of the success of the proposed
treatment is highly material in almost any imaginable case. In
Arato v. Avedon,235 the court recognized that, and left the issue to
the jury under a materiality instruction. However, the court also
held that the materiality standard would not govern the duty to
reveal information that was not about risks of the procedure itself.
For all other information—life expectancy information was in issue
in Arato—the medical standard of disclosure would govern. So
when doctors recommended a painful course of treatment that had
no known chance of significantly prolonging the patient’s life, the
materiality standard did not control at all. Under that view, an
informed consent claim could be pursued only if the medical
standard required doctors to reveal the improbability of success or
the fact that it might
520
extend life only for several months. Since the medical standard
in that case was nondisclosure rather than disclosure, the doctors
were not subject to liability. Even the patient’s answer to the
doctor’s questionnaire that he wished to be told the truth did not
“heighten the duty of disclosure.”236 A less restrictive view of the
physician’s obligation is that he must provide relevant medical
information, but the information, if material, would not be limited
to the precise medical procedure itself.237
Disclosure of other information. The law of informed consent
traces its origin to battery cases, which necessarily involve a bodily
contact. However, with the recognition of the law’s autonomy-
respecting principle, courts may impose liability for failure to
provide certain kinds of information even when no bodily contact
results.238 In particular, physicians may be obliged to properly
explain fetal genetic defects to pregnant patients239 and if a
patient refuses to undergo a diagnostic procedure or operation,
then to explain to the patient the risks of the refusal.240 For the
same reason, the physician who treats a fracture with bed rest
must explain the disadvantage of such treatment, the surgical
alternatives, and their risks and advantages.241 The point in such
cases is that the decision belongs to the patient. The doctor is liable
for harm done in depriving the patient of that decision, even
though no bodily contact has resulted.
Manner of disclosure. Discussions of the disclosure required by
informed consent rules usually seem to assume that the doctor
holds a face-to-face conversation with the patient. No doubt that
has often been true, but there has long been some tendency to
formalize the process. There are now on the books a number of
informed consent statutes that encourage the doctor to list risks in
a written consent form and that provide at least a presumption
that full disclosure has been made once the patient signs the
form.242 As with boilerplate in commercial documents, extensive
explanation may defeat the informative purpose. Besides the
statutes, other forces are at work to mechanize or formalize the
disclosure process. Managed care organizations and even
individual physicians provide patients with booklets or pamphlets,
monthly health magazines, and even night classes in various
aspects of health. The efficiency of such organizations may mean
that a staff member may casually inform the patient of risks and
that the doctor will not. These changes in the practice of medicine
are likely to raise new issues about the effectiveness of mass-
produced and impersonal disclosures.
§ 21.12 The Causation Requirement in Informed
Consent Cases
In most states, informed consent cases require proof of legally
cognizable harm resulting from the nondisclosure.243 The
requirement of damages is also, at least in
521
theory, a requirement of factual causation. Thus a plaintiff may

have to prove with expert testimony that it was more likely than
not that the undisclosed risk actually materialized and was a but-
for cause of her injury.244 Most commonly, the gist of the plaintiff’s
claim is that her consent to a medical procedure was procured by
nondisclosure of risks or other information the defendant was
required to disclose, that the procedure caused harm even if the
procedure was skillfully performed, and that the plaintiff would
not have undergone the procedure and suffered the harm had she
been properly informed. This would establish factual causation—
but for the tortious nondisclosure, the plaintiff would have avoided
the harm she suffered.
The “subjective” rule of causation. Some courts follow this
traditional but-for rule. They hold that evidence that the plaintiff
would have refused the harmful operation is necessary to establish
causation and that failure to provide such evidence means that
causation has not been shown.245 This is sometimes labeled the
subjective rule, but it is in fact the only rule that actually
addresses but-for causation.
The objective rule. Most courts have applied what is often called
an objective test of causation, saying that the plaintiff cannot
prevail unless a reasonable person given the required information
would have refused consent to the operation.246 They reason that
the doctor should be protected because the plaintiff’s testimony
that she would not have consented had she been properly informed
might be false.247 This rule effectively treats the plaintiff’s
testimony on this point as always false, contrary to the normal rule
that credibility is for the jury.248 The rule is at odds with the
inference of causation available when the harm that comes to pass
is the very harm the defendant risked.249 The rule is also at odds
with the rule in products liability cases. In those cases, courts hold
that when a manufacturer fails to give a warning or other
information, they will presume that the victim would have read
and acted upon the information.250
The objective rule as a non-causal rule of restricted duty. The
objective rule, though explained as a rule of causation, is not in fact
about causation at all. Causation cannot be proved by showing
what would have happened with a purely hypothetical plaintiff. If
the full disclosure would have led the plaintiff to refuse the
operation, both the
522
defendant’s breach and its causal role is clearly established.251

The objective rule is really a further restriction of the physician’s
duty. While the materiality test requires the doctor to provide
information that a reasonable person would wish to know in
considering the proposed procedure, the “objective test” further
restricts the physician’s duty so that he need not provide all
relevant information but only information that would actually be
decisive to a reasonable person. The effect is that the “patient’s
right of self-determination is irrevocably lost,”252 unless the
plaintiff’s own risk tolerance happens to jibe with that of
hypothetical reasonable people as the jury imagines them to be.
The dual requirement. Several states have explicitly held that
both subjective and objective tests must be met, so that the
plaintiff will fail if she would have accepted the medical procedure
even when fully informed, and she will also fail if she would have
rejected it but a reasonable person would not have.253 Some of the
cases that may be listed as adopting either the subjective or
objective test fail to state whether the test adopted is necessary
and exclusive or whether it is merely sufficient. For this reason,
some of these cases do not clearly rule out the dual demand upon
the plaintiff.254
In addition, the cases that explain the reasonable person rule as
a necessary method of proving what the individual plaintiff would
likely have done can be interpreted as implicitly adopting a dual
requirement. This can be seen by supposing that a reasonable
person would have refused consent had she been given appropriate
information but that the plaintiff herself would have consented
anyway. If the objective, reasonable person test is the only
requirement to show “causation,” the plaintiff would recover in
those circumstances. Yet it is difficult to believe that such courts,
all of which have recognized the ordinary but-for rule, would allow
the plaintiff to recover.255 For this reason, such courts seem to be
effectively adopting both the subjective and objective requirements,
which is to say that courts adopting the objective test are in reality
limiting the physician’s duty to disclose material information and
also requiring factual causation in the form of the subjective test.
Comparative fault. Although a patient’s comparative fault may
reduce her damages in medical malpractice cases,256 some
authority takes the view that comparative/contributory fault has
no place as a partial or complete defense in informed consent
claims.257 The comparative fault defense is surely inappropriate in
jurisdictions that adopt a battery theory of informed consent and
also refuse to apply comparative
523
fault principles in intentional tort cases.258 It may be difficult to

say that no case whatever can possibly arise in which the patient’s
comparative fault in an informed consent claim should be
considered. However, even if comparative fault can be an
appropriate plea in informed consent cases, the patient should not
be charged with comparative fault merely because he failed to read
the physician’s written consent form or to ask the physician for
more detailed information.259 Certainly the physician’s
responsibility should not be reduced on the ground that the
plaintiff should have ascertained the required medical information
from some other source. On the contrary, the physician’s duty to
disclose, when it exists, demonstrates the plaintiff’s right to rely
upon his disclosure.260

All states, following California’s lead, have adopted Good
Samaritan statutes that reduce the duty of care otherwise owed by
licensed health care providers when they are rendering certain
professional assistance at the scene of an emergency occurring
outside the professional’s regular practice.261 Under none of the
statutes is the provider liable for medical negligence. Although
these statutes are potentially unjust in relieving a negligent
physician of responsibility for his acts, in some cases they may be
invoked only as a convenient if confusing way to protect a doctor
who needed no protection. They may be invoked, that is, to protect
a physician who was not negligent in the first place and who would
not have been held liable under ordinary tort rules.
Some of California’s statutes literally eliminate liability even
for gross or wanton negligence, so long as the practitioner acts in
good faith.262 “[T]he goodness of the Samaritan is a description of
the quality of his or her intention, not the quality of the aid
delivered.”263 Other statutes do not go quite so far; they eliminate
liability for ordinary negligence, but preserve a duty not to act
wantonly or intentionally.264
Some statutes apply only if the defendant renders assistance
without payment or expectation of payment,265 and sometimes only
he does so at the “scene of an emergency” or outside his ordinary
employment or practice.266 However, unusual decisions have
extended statutes to protect surgeons operating in a regular
hospital operating room267
524
and even to operating room cases where no emergency exists

and the surgeon only mistakenly believes that it does.268
Some states go on to provide similar protections to other
specified persons such as ambulance personnel or teachers on
school grounds,269 and even to any person acting in an
emergency.270 Some specifically apply the special protection to
medical professionals who volunteer to provide medical services at
sports events and who are thus prepared for the emergency that
arises but who are not paid for their services.271
The purported basis for these statutes was that they were
needed to encourage physicians to render assistance in roadside
emergencies. The idea was that without the statute’s immunity,
physicians would refuse to provide medical care for fear of legal
liability. In fact, however, suits for negligent medical care rendered
in such emergencies are practically non-existent. When such suits
are brought, the due care standard or the traditional standard for
physicians would afford full protection. Those standards take
account of the fact that one acting in an emergency is not
necessarily at his best and that equipment and professional
assistance may be lacking.272 When the statute’s immunity is
extended to cover doctors working in hospital emergencies, the
rationale changes from fear of liability to a desire to encourage
voluntary medical services in the hospital itself.273
Some other statutes do not invariably eliminate liability for
negligence but instead require the plaintiff to wage an uphill
battle. For instance, a statute may require the plaintiff to prove
negligence by clear and convincing evidence rather than by a
preponderance of the evidence.274
Respected studies have shown that only a small fraction of
people who are negligently injured by health care providers
actually make claims.275 Nevertheless, an apparent increase in
malpractice litigation has been almost the constant story of
medical
525
malpractice since 1840.276 Many observers have thought that

malpractice litigation increased in particular sometime after World
War II. By about 1970 the perception of increased litigation was
raising concerns among health care professionals to new levels.
One undisputed reality was that premiums for medical malpractice
insurance rose, probably in part because the insurers’ investments
of premium income were bringing smaller returns, perhaps in part
because the insurance industry was (and is) largely unregulated.
In some places, malpractice insurance was difficult to procure at
all.
Medical professionals and their representatives called this a
“malpractice crisis.” They generally blamed lawyers rather than
negligent physicians or unregulated insurers, and there are
current efforts to limit the fees of plaintiffs’ lawyers.277 In a few
states, the term crisis might not have been hyperbole; but
considered overall, doctors’ incomes increased more in the critical
period than the cost of insurance, so that they were actually paying
a smaller percentage of their income on premiums.278 If the crisis
was not as clear as it seemed, the effect of litigation in producing it
was just as uncertain.279 Many studies show that there has been
little or no increase in medical malpractice recoveries,280 even
though insurers continue to raise premiums.281
One theme commonly advanced by supporters of the health care
industry is that American juries are biased against doctors and
have more or less gone crazy. This notion has been thoroughly
disproved. In fact, studies indicate that juries more than doctors
tend to forgive medical negligence and find for the defendant
doctor far more often than for the plaintiff.282 Another theme that
has now clearly been advanced by health care providers is that
individual responsibility or “blame” for medical negligence is
unacceptable and that liability should be directed only at
institutions and systems.283 In any event, the health care
profession demanded relief from the threat of responsibility in tort
and many legislatures responded. Besides statutory provisions
intended to guarantee that insurance would be available,
legislation, which differed from state to state, often introduced
substantive, remedial, or procedural changes.
Substantive changes. In varying combinations, substantive
changes at the state level included the following: (1) The standard
of care was narrowed to the defendant’s own local community in
contrast to the increasing common-law acceptance of a similar
526
community or national community standard.284 (2) Informed

consent claims were limited or discouraged, for instance, by
adopting a medical standard of disclosure rather than a materiality
standard.285 Claims for actual battery were sometimes abolished
altogether.286 (3) Res ipsa loquitur was eliminated from medical
negligence claims;287 or was limited to specific lists of cases such as
those in which surgical instruments were left within the patient’s
body.288 (4) The statute of limitations defense was strengthened in
several ways, for example, by restricting the discovery rule289 and
by enacting statutes of repose which could bar some claims before
the patient could discover the harm done.290
Remedial changes. The most striking crisis legislation capped
the damages recoverable in malpractice suits, either by limiting
pain and suffering recovery or by limiting the total that could be
recovered even for actual money costs of a serious injury.291 Other
provisions tinkered with special damages rules like the collateral
source rule, or permitted periodic payment of judgments.292
Procedural changes. Legislatures enacted various procedural
impediments along the road to suit, including requirements that
medical malpractice claims be screened by a panel which may
include health care providers. Panel decisions on the merits may
lead the parties to a settlement, but if not, the panel decision may
be introduced in evidence at trial.293 Other statutes promoted
binding arbitration.294 Plaintiffs were sometimes required to file
special notices before suit could be brought295 and attorneys were
required to personally certify the quality of the claim or to supply
an affidavit of a physician. Some statutes imposed severe
restrictions on expert testimony, excluding testimony of
experienced health care professionals in the community if they had
not
527
engaged in clinical practice of the same or related specialty

within one year, whether or not they had knowledge of the
standards.296
Negligence unrelated to diagnosis, treatment, or care. Because
the malpractice crisis statutes may eliminate a claim altogether
(under a stringent statute of limitations, for example) or prevent
recovery of all the plaintiff’s actual damages (under a cap), it is
often in the plaintiff’s interest to claim that the provider’s tort was
not “malpractice,” but some other kind of negligence.297
Presumably a slip-and-fall on a hospital floor is purely mechanical,
not malpractice at all,298 yet Ohio applied its health care provider
statute to a case in which the plaintiff’s wheelchair collapsed.299 A
battery or other intentional tort may escape the terms of a statute
capping damages in professional “negligence” cases.300 Although a
nursing home may be obliged to provide nursing diagnosis and
evaluation of care by nursing staff, the special demands of the
medical malpractice statutes do not necessarily apply to actions for
breach of statutory duties under elder-care or nursing-home
statutes.301
Because a medical malpractice action is a specific instance of a
negligence claim, the affirmative defenses that apply in ordinary
negligence actions also apply in medical malpractice claims,
although the different context may have some effects.
In malpractice cases, the patient’s negligence bars the claim or
reduces the damages according to the rule applicable generally
under governing law, provided the plaintiff’s fault is a factual and
proximate cause of the harm complained of.302 The patient is
completely barred in jurisdictions that reject comparative fault
rules generally303 or for medical malpractice cases in particular.304
In most states, the patient’s own causal fault only reduces his
damages, unless, in a modified comparative fault jurisdiction, his
fault is equal to or greater than the physician’s.305
528
A patient’s failure to follow instructions,306 to return for further

care,307 and even to accurately report medical history or
symptoms308 have all been counted as plaintiff fault, although a
failure to report symptoms or history accurately might in some
cases simply show that the physician was not negligent at all
because he responded appropriately to the symptoms reported.
In the medical malpractice context, however, the plaintiff is
entitled to rely heavily on the physician; the patient is not required
to self-diagnose or to report symptoms he has no reason to suspect
are relevant,309 much less to seek a second opinion.310 More
broadly, what counts as contributory fault chargeable against the
plaintiff may be limited by the doctor’s duty. The patient’s act of
self-risk may be one the doctor has a duty to prevent. If so, it is
logically improper to assert that act as contributory fault.311
In some states, plaintiff fault that occurs after the physician’s
negligent conduct will be treated under the rules of avoidable
consequences or minimizing damages rather than under the rules
of comparative fault.312 One effect of this is that even if the
plaintiff’s post-injury negligence is greater than the physician’s,
the plaintiff will not be barred completely in a modified
comparative fault jurisdiction. Rather, her damages will be
reduced to the extent that her post-injury fault caused additional
harm. The Restatement view is that comparative fault rules
supersede the old minimizing damages approach.313
Pre-treatment fault of the patient that caused the injury or
condition treated by the physician is logically irrelevant. The
physician undertakes to treat the plaintiff as she is. Consequently,
an injured person, one who smokes, or one who is overweight is
entitled to full care without a reduction because the condition she
brought to the doctor for medical attention was her own fault. The
courts almost completely agree that pre-treatment fault of the
patient does not count as contributory fault, either to bar the
plaintiff or reduce her damages.314
529
B. HOSPITALS AND MANAGED CARE

ORGANIZATIONS
National or reasonable person standard of care. The conflict
between local and national standards of care has never been as
intense in the case of hospitals as it has been with individual
physicians. The consensus seems to be that, except when the
hospital’s liability is vicarious and premised on a doctor’s
negligence,315 the duty of hospitals toward patients is to act with
reasonable care under all the circumstances,316 or in accordance
with the national standard of care for hospitals.317 One basis for
this view is that all hospitals accredited by the Joint Commission
must follow national standards set by that accrediting organization
in order to get and keep that accreditation. The Joint Commission’s
standards,318 the hospital’s own bylaws based on national
standards,319 and any statutory requirements are at least evidence
of a minimal standard of care.
Immunity. Hospital liability, although now accepted, did not
come easily. First, under traditional rules, charitable hospitals,
like other charities,320 were immune to suit for their tortious
activities. Similarly, governmentally operated hospitals once
shared in governmental immunities.321 Both the charitable and
governmental immunity have generally been abolished or modified,
but vestiges remain. In some states, new immunities have been
erected322 or recovery of damages limited,323 often as part of
widespread efforts to reduce legal responsibility for negligence
generally.
Practice of medicine. Second, courts once held that corporations
—hospitals—could not legally practice medicine and therefore
could not control physicians working in the hospital. For that
reason, some of the older cases held that, contrary to the ordinary
rules of agency law, hospitals could not be vicariously liable for the
negligence of physicians, even those actually employed by the
hospital.324 This view has changed radically but not universally.
Hospitals and medical corporations that do not enjoy an immunity
on other grounds are now generally subjected to liability for the
medical negligence of their employees,325 but the view is not
universal.326
530
Vicarious liability. Private physicians who attend their own

patients in a hospital are independent contractors, not employees
of the hospital.327 Consequently, the hospital is not vicariously
responsible for the negligence of such an independent contractor-
physician.328 But the hospital or clinic is now vicariously liable
under agency principles for the negligent acts of its own employees
if those acts are committed within the scope of employment.329 For
instance, patients can pursue claims against hospitals and clinics
for the negligence of its paramedics or emergency medical
technicians,330 physician assistants,331 paid resident physicians,332
and nurses it employs.333
Ostensible agency. By estoppel or ostensible agency, the hospital
may also be liable when it creates or sustains the appearance that
an independent physician or surgeon is its employee.334 So if the
hospital contracts with independent physicians for its emergency
room work,335 or X-ray lab,336 or anesthesia services,337 but
presents those services as part of the routine hospital work, juries
are allowed to find that the independent contractor/physician was
the ostensible agent of the hospital so that the hospital becomes
liable for his negligence. And of course a hospital may actually
employ physicians to carry out medical duties, and if so, it is
subject to vicarious liability for their torts committed within the
scope of their employment.338
“Corporate negligence.” The claim of corporate negligence is not
based upon vicarious liability of the hospital for acts of a physician
or surgeon. The leading case is Darling v. Charleston Community
Memorial Hospital,339 where a doctor’s treatment of a broken leg in
the defendant hospital led to gangrene and amputation of the leg.
The plaintiff claimed that the hospital (1) should have provided
nurses sufficiently trained to recognize the signs of gangrene early
enough to have avoided the need for amputation, and (2) should
have provided some kind of supervision or review of the doctor’s
treatment. The court thought that both claims were tenable and
supported by the evidence. In line with Darling, the cases now
generally recognize that the hospital itself owes the patient a non-
delegable duty of care.340 Hospitals are thus subject to liability if
531
they fail to provide appropriate facilities, equipment, and staff

support,341 fail to maintain the patient’s chart accurately and in a
timely manner,342 and if they negligently select or train
employees343 or negligently review or supervise344 physicians who
are permitted to use the hospital’s resources.
Changes. Although the common-law development of hospital
liability is somewhat uneven, its general direction seems clear.
From the earlier no-liability rules, courts have increasingly
recognized that hospitals may be liable for the negligence of their
own medical employees, for that of independent contractor-
physicians who are identified with the hospital in the public mind,
and even for failure to supervise or exclude physicians whose skill
is not to be trusted.345 The direction suggested by these changes
perhaps forecast others, such as the studied proposal to impose
strict liability346 and the federal statute prohibiting “patient
dumping.”347
§ 21.17 Mandatory Hospital Screening and
Treatment: EMTALA
Common law. The usual common law view is that, subject only
to the most limited kinds of exceptions, no individual or entity is
legally obliged to aid a person who is ill or injured.348 Although
neither hospitals nor doctors could abandon a person who had been
accepted as a patient,349 neither would be required to accept a
patient in the first place. For example, doctors and hospitals could
refuse patients who were unable to pay for its services.350 Some
courts developed a limited exception, requiring a hospital to give at
least some treatment to a patient who presented an unmistakable
medical emergency.351
EMTALA statute generally. Protected by the common law rules,
some hospitals engaged in “patient dumping,” refusing treatment
for the impecunious and uninsured. Congress enacted the
Emergency Medical Treatment and Active Labor Act (EMTALA) in
1986 to alleviate that problem.352 That statute requires hospitals
that have emergency departments and that are part of the
Medicare program to provide medical screening and emergency
treatment under specified conditions, but it is not limited to
Medicare
532
patients or even to uninsured or impecunious patients.353 The

statute specifically provides that a civil action may be brought for
its violation.354 By it terms, the statute’s civil remedies run only
against the covered hospitals, not to physicians.355
Duties to screen and stabilize. If an individual “comes to the
emergency department” with a medical request, the hospital is
potentially subjected to two duties. First, it must provide
“appropriate” medical screening within the limits of the hospital’s
capability.356 Second, if the hospital “determines” that an
individual has an emergency medical condition—which is defined
to include active labor357—the hospital must ordinarily provide
medical attention to stabilize that condition before transferring the
patient.358 In the case of active labor, stabilization means complete
delivery. Otherwise, stabilization requires treatment that
reasonably assures that no deterioration of the condition would
result from transfer to another facility.359 Liability for failure to
stabilize does not require proof that the hospital had a
discriminatory or other bad motive.360
Role of state-law malpractice. EMTALA is not a general
malpractice statute and it does not preempt state tort law claims.
A hospital that abandons an accepted patient might thus be liable
under state law, even if it is not responsible under the federal
statute.361 State law governs damages,362 too, and for this reason
courts have applied state statutory caps to limit damages recovery
under EMTALA if the cap would apply to a state-law claim based
upon the same facts.363
The EMTALA statute does not set up a standard of care or
prohibit negligent medical acts. Instead, it works through specific
commands to provide appropriate medical screening and to provide
medical treatment needed to assure that the condition is stabilized.
Federal courts have striven to constrain the statute so that it does
not become a substitute for state malpractice law. Consequently,
they have held that the statute’s requirement of “appropriate”
screening does not create liability for negligent screening, but only
screening that the hospital would provide to a paying patient, or
patients generally.364 On this basis it has been held that a
hospital’s negligent diagnosis and treatment of a patient is not
itself actionable under EMTALA. Instead, the hospital that
negligently diagnoses or treats an emergency patient is subject to
the statutory liability only if it releases or transfers the patient
with knowledge of the unstabilized emergency medical condition.
As long as the hospital continues to provide screening and
533
treatment to stabilize the patient, it does not violate the

EMTALA duty, even if it is negligent.365 Even so, it would seem
that the requirement of “appropriate” screening appeals to some
kind of normative standard. For this reason, a failure to meet
ordinary hospital standards in screening a patient looks like an
inappropriate screening, even if the hospital treats all its patients
equally badly. In fact, it has been held that if the hospital does not
screen at all or its acts are not calculated to reveal medical
emergencies, liability follows.366
The Managed Care Structure vs. Fee-for-Service
The traditional rules of professional liability originated in a fee-
for-service system. Patients paid health care professionals for a
service. If patients were insured or covered by statutory programs
like Medicare or Medicaid, the insurer or the program paid for the
service agreed upon by doctor and patient. Under this system,
doctors might prefer to recommend more than optimum diagnosis
or treatment, say an X-ray “just to be sure.” If they were covered by
programs or insurance, patients might insist on more. Whether
entirely for these reasons or not, costs soared.
Managed care systems, well on their way to replacing the fee-
for-service approach, attempt to achieve cost-effective medical care.
The idea is to minimize total costs without reducing overall good
medical outcomes. Managed care operates by interposing a third
force between doctor and patient, a kind of economically efficient
medical conscience that says no to some diagnoses or treatments.
The term Managed Care Organization (or “MCO”) refers to any
form of managed care structure. A familiar version is the Health
Maintenance Organization (or “HMO”). Employers might contract
with an HMO to provide comprehensive health care services for all
employees, who might in turn contribute to the costs through
payroll deductions. The HMO in turn either hires physicians or
contracts with organizations of physicians to provide care. The
HMO is not merely an insurer; it is actively engaged in managing
health care costs by limiting the delivery of medical services
unlikely to be helpful.
The amount and perhaps quality of care provided by an HMO is
limited by several factors. (1) The contract itself may exclude
certain care items such as experimental treatments. (2) The
primary physician is usually the first physician to be seen by the
patient; that physician acts as a gatekeeper who may have motives
besides purely medical ones to limit the patient’s access to some
kinds of care by refusing a referral to the expensive specialized
treatment or hospitalization. The non-medical motives arise from
the HMO system for compensating physicians, under which
physicians who refer less may be compensated more. (3) The
physician is usually paid per capita, which is a specified fee for
each patient seen during the coverage period. Repeat visits thus
represent a cost to the physician without any increase in income
from the HMO.
Inside a hospital, managed care may take the form of utilization
review. Utilization review is a system of monitoring hospitalization
time and notifying the hospital that the
534
HMO or insurer will pay only for a specified hospital stay for a
given illness or surgery. In the case of publicly funded hospital
stays, regulations may perform the same function.
Potential Liability of MCOs
Vicarious responsibility—staff model. The HMO is a fiscal and
management organization; it does not itself practice medicine. For
this reason, some statutes provide complete immunity to the HMO
against liability based on negligence of the person rendering
services.367 However, when the HMO is organized on the “staff
model,” it actually employs physicians, so that under ordinary
agency principles, it would be legally responsible for their
negligence within the scope of employment. At one time courts took
the view that corporations could not practice medicine so that even
if a physician were a corporate employee, the corporation could not
exercise significant control and could not be vicariously liable. This
view has been largely repudiated in the case of hospitals,368 and it
seems likely that most courts will also apply ordinary vicarious
liability rules to HMOs.
Independent-provider model. The Independent Provider
Association or IPA model for MCOs is structurally different. Here
the MCO contracts with still another organization to provide
physicians, or in a variation on that, contracts directly with
independent physicians who would traditionally be seen as
independent contractors, not employees of the HMO. Because the
physicians in this situation usually appear to be independent
contractors, the HMO is not vicariously responsible for their acts
unless the plaintiff can show an exception to the rule.369
One set of exceptions holds the employer of independent
contractors vicariously liable on an ostensible agency, apparent
authority, or agency by estoppel theory.370 In the case of hospitals,
for example, the hospital may be liable for independent contractors
who operate the hospital emergency room, since patients
reasonably think that going to the emergency room is “going to the
hospital;” they do not think they are consulting an unnamed
independent contractor.371 Although authority is sparse, some
cases have carried over this idea to impose vicarious liability upon
an IPA type MCO372 or upon a staff type MCO who employs an
independent consultant.373
The second exception is really an assertion that, in spite of
appearance to the contrary, the physician is not an independent
contractor because the MCO exercises pervasive control over his
work and is thus in the role of a “master” who is vicariously liable.
MCOs do in fact exercise a good deal of control—that is how cost
containment works—but it is more likely to relate to the provision
of expensive services rather than, say, a simple bad diagnosis. Not
surprisingly, then, some courts have found the control
535
not to be extensive enough to warrant vicarious liability.374 But

the question turns heavily upon details of evidence as well as
argumentation in particular cases, and some authority has
recognized that vicarious liability may be imposed under this
exception.375
Direct liability—negligent selection or retention of physicians.
Unless federal law preempts them, at least two kinds of claims
might plausibly be asserted against an MCO that are not based on
vicarious liability but on its own primary negligence. First, the
analogy to hospital liability suggests that MCOs might well owe a
duty of care in selecting and monitoring physicians and hospitals.
If so, the MCO would be liable directly for its negligence in
selecting or retaining an unsuitable physician, even when it would
not be vicariously liable and some cases have so held.376
Cost-containment devices creating risks. Second, the cost-
containment methods used by MCOs may undercut appropriate
care in particular instances. If a cost-containment method such as
utilization review effectively denies the patient her rights under
the insurance or MCO plan and also counts as bad medical care,
liability in tort or contract or both seems entirely appropriate.377
The design of contractually valid cost-containment systems itself
may create undue risks. The incentive system created by the
compensation plans often provides the physician with more
compensation if he uses fewer expensive tests and referrals. This
may actually put the physician in a conflict of interest when
medical needs might dictate a referral that would represent a
dollar cost to the physician.378 Other cost-containment features
may involve the MCOs’ dictation of drug and hospital choices that
could conceivably be against the patient’s interests.379
Informed consent or duty to provide information. The role of
MCOs in providing important information to patients is a special
problem. In some respects, the advent of managed care creates new
risks, particularly risks associated with financial incentives and
the absence of coverage for some treatments.380 It is quite possible
that courts will eventually impose a common law duty upon MCOs
to provide certain important information to the subscriber-patient,
perhaps including information about the
536
individual physician’s record of success or failure.381 However,

the Supreme Court has held that the ERISA statute does not
impose a fiduciary duty upon the MCO to reveal financial
incentives adverse to the patient-subscriber.382
ERISA Preemption. The most serious impediment for many
patients injured by managed care organizations is the prospect of
federal preemption, which may leave the plaintiff without
meaningful redress. The problem arises under the Employee
Retirement Income Security Act (ERISA),383 a federal statute
intended to set uniform standards for employee benefit and
retirement plans. The statute covers medical benefits provided
through employment, and hence covers most managed care
systems. By its terms, it “supersedes” state laws and court
decisions that may “relate to any employee benefit plan”
covered.384 Where this provision applies, the covered employee
(meaning a patient in the context of medical benefits) may sue
under the federal statute itself to recover benefits denied.385 But
the patient may not sue for negligence that caused harms to her
body when needed and covered medical care was denied.386
Sometimes preemption is a deadly vacuum, leaving the injured
patient nothing, but the claim is not always “completely
preempted.”387 Using various terminology, courts have sought to
distinguish between an HMO’s coverage or “eligibility” decisions,
which are preempted, and its medical or treatment decisions,
which are not, although the difference if any can be hard to spot.388
If the claim against an HMO is based on the assertion of ordinary
malpractice and vicarious liability, not based upon the denial of
coverage or benefits, it is simply not preempted.389 On the other
hand, if the claim is that the plan wrongly denied benefits such as
hospitalization, then that would be a benefits-denied case and thus
preempted,390 even if the coverage decision was made
negligently.391 Federal regulations attempt to control abusive
denials of coverage, but an HMO’s violation does not create any
tort rights for the victim.392
537
C. NURSING HOMES AND RESIDENTIAL

FACILITIES
§ 21.19 Injuries in Nursing Homes and Other Care
Facilities
The liability of nursing homes for residents’ injuries is a subset
of the larger topic of elder abuse.393 Some other adult care homes
may raise similar legal problems. Injuries to often-helpless nursing
home residents are numerous, serious, painful, and often
horrifying, disgusting and deadly. Gross estimates suggest that as
many as five million seniors are abused each year.394 Most
residents suffer from serious physical and mental limitations that
prevent them from revealing abuse or neglect, even if they are
aware of what causes their pain and misery.
Surveys of nursing homes show that large numbers of them are
deficient in standard care requirements. Not all deficiencies are
serious, but the GAO concluded in 2002 that one-fourth of all
nursing homes have deficiencies—substandard care—“that harmed
residents or placed them at risk of death or serious injury.”395
Given that nursing homes are largely closed societies where
injuries and bad practices may never be discovered, it is a safe bet
that injury rates are much higher than these percentages suggest.
In one sense, most nursing home claims are like other tort
claims—nursing homes may be sued for negligence in the same
way hospitals can, and the plaintiff must show duty, breach,
factual cause, proximate cause, and damages.396 Similarly,
apportionment of responsibility among several tortfeasors follows
the state’s apportionment rules as applied in other actions. Yet
nursing home injury is a complex subject, and tort suits are
difficult to pursue. At the same time, physicians who serve in
nursing homes feel especially vulnerable to suit, although this
feeling is often out of line with reality397 and physicians’ fear of
liability may result in better care of nursing home residents.398
One difficulty is that the topic is relatively new and some
fundamental conceptions are unsettled. Another is that nursing
home conduct causing injuries ranges over a wide spectrum, some
resembling professional malpractice and some resembling ordinary
negligence. More significantly, the topic is conceptually clouded
and imperfectly coherent because the conceptions and terminology
in state and federal statutes and regulations come from a legal
culture of regulation and administration in which protection is
expected to come from state inspections and civil fines, not
primarily from tort suits that enforce individual rights. At the
same time, the regulatory agencies seek to maintain nursing
homes at an operating level and to funnel Medicaid money to them,
so there is
538
little disposition to use regulatory power to force bad violators

to make corrections or leave the business.
The result is that tort suits are a badly needed corrective. Yet
tort suits are difficult to mount. This is true at one level because
the nursing home industry has engaged in several practices to
make suit useless. Some nursing homes restructure their business
so that their property, which produces large income, is owned by a
separate corporation from the one that runs the nursing home with
little cash, in effect creating an immunity for the only substantial
assets the business has. Some go without liability insurance or
only buy inadequate insurance.399 Both moves can mean that
efforts to impose accountability for the nursing home’s wrong is
useless. Compelled arbitration may likewise displace
accountability in tort.400
At another level, tort suits are difficult to pursue because
nursing home residents are often so mentally or physically
incapacitated that they cannot report the harms done to them,
much less arrange for a law suit. If a suit is brought, several
factors can operate to limit damages so severely that most lawyers
simply cannot afford to engage in the complex task of preparing for
suit. For example, an 87-year-old resident may die of abuse or
neglect, but she has lost no income, and no dependents have lost
support. Unless damages for pain and suffering are very high, or
remedies are enhanced by statute,401 or punitive damages are
recoverable,402 the case may promise a recovery too small to fund a
reasonable attorney’s fee under the contingent fee system. Tort
reform legislation can force the same result. According to one view,
this has virtually eliminated nursing home suits (and therefore the
rights of nursing home victims) in some states.403
Nursing homes, having undertaken the care of their residents,
owe them a duty, including a duty to use care to protect them from
their own infirmities404 and from attacks by others.405 However, it
is not always clear at first glance what standard of care is owed, or
even whether health care statutes apply to nursing homes. If
courts think the
539
claim against a nursing home is “medical,” the plaintiff will

ordinarily be required to prove the medical standard of care, or an
analogy to it—the care used by other nursing homes—rather than
the reasonable person standard of ordinary negligence.406 Unless
the nursing home’s negligence is obvious or within the common
knowledge of jurors,407 the plaintiff will need expert witnesses who
can testify to the standard.408 The same is true when the plaintiff
sues a physician whose care of the nursing home resident is alleged
to be negligent.409 Distinctly but relatedly, if the claim is for a
medical error rather than for custodial negligence, it may fall
within the purview of the tort reform statutes that provide special
and significant protections for health care providers such as
physicians. Those protections are effective and eliminate many
claims,410 and under some statutes may limit even non-medical
claims against nursing homes.411
Applying a single approach to all nursing home activities? Some
courts seem to have lumped together all nursing home activities,
treating them all alike and subject to the same standards, and
asserting generally that nursing homes owe residents a duty of
ordinary care, commensurate with the resident’s mental and
physical needs.412 Others have said that nursing homes are subject
to a medical standard or the standard set by other nursing homes
in the same community.413 Such statements assume that the
standard is determined by the nature of the defendant as a nursing
home or healthcare unit regardless of the kind negligence that
inflicted harm. Consequently, they may look for evidence of a
standard of care to govern defendants with the status of nursing
homes rather than the standard to govern the act that caused
harm.414 This status-oriented view of the standard could lead a
court to shield nursing homes under the health care statutes, even
when the nursing home has committed acts that do not seem to be
medical at all, as when it knowingly committed acts of abuse or
violated statutory directives.415
540
Custodial nature of nursing home care and the standard of care.

However, an invariant rule that either applies or rejects the
medical standard overlooks two important facts. First, most
nursing home operations are truly custodial, not medical; they are
not even authorized to deliver medical care and they do not do so.
Second, most of the primary care is in fact given, not by registered
nurses or even LPNs, but by unlicensed nurses’ aides or “certified
nursing assistants.”416 Neither of these groups is qualified to
exercise medical judgment. Consequently, many nursing home
operations—providing food, hydration and hygiene, for example—
are simply not medical at all, so that a medical standard would be
grossly out of line. Something similar can be said about the
protective healthcare statutes; they may classify nursing homes as
healthcare providers, but some of those statutes are intended to
provide protection only for acts “related to medical treatment”417 or
at least for acts requiring some kind of medical judgment. For
example, a surgeon is a healthcare provider, yet it is certain that if
he runs over a child in a crosswalk, the healthcare statute has no
application at all. In the same way, if nursing homes are permitted
to and do make purely medical judgments, the protective statutes
would apply, but there is no occasion to apply their protections to
merely custodial conduct such as providing or failing to provide
food.
Abuse. Abuse of a resident is clearly outside the realm of
medical or health care treatment. No one needs to hear testimony
about a medical-professional standard to know that abuse such as
physical attacks by staff,418 sexual abuse or rape,419 and forced
treatment420 are tortious. If the nursing home fails to protect the
patient from abuse, no medical or professional judgment seems to
be involved, although some states define health care to include
issues of physical safety from attacks by others and thus go on to
apply the statutory limitations on redress for negligence.421
Nursing home residents, however helpless, are free men and
women, not prisoners. By federal law, restraints, chemical or
physical, are forbidden when imposed for the convenience of the
staff.422 Frequently, it would be equally easy to know without
medical testimony that a restraint upon residents is
unnecessary423 and an abuse in violation of this standard.
541
Neglect. Neglect includes negligent mistreatment and also

failure to provide rudimentary care in cleaning patients424 and in
turning them to prevent bedsores that leave the flesh rotting to the
bone in some cases.425 It also includes failure to provide medicines,
food, and water426 and failures to provide trained personnel for
feeding those in danger of choking427 as well as all forms of active
negligence, such as provision of wrong medications428 or
overdoses.429 In cases like these, the standard of care can be
viewed as the ordinary reasonable care standard, easy enough to
apply without expert testimony detailing the practices of other
nursing homes,430 which is only to say that it would be tortious to
refuse food to a helpless resident even if all nursing homes followed
that practice. Another way to make the same point is to recognize
that statutes and regulations set specific standards (for feeding,
nutrition, and bedsores, for example),431 so testimony about
standards should be unnecessary or even impermissible if the
testimony proposes standards that vary from the standard set by
law. Similarly, no medical judgment is involved when a nursing
facility fails to supervise a patient who is known to be dangerous to
herself.432 Equally, active custodial mistreatment—bathing a
helpless resident in scalding water, for example—is hardly a
medical decision and ordinary reasonable care standards can be
applied to such cases.
Premises conditions, institutional management decisions. Some
of the harms to residents arise only remotely from the application
of health care itself, although the risks may be more threatening
because of the residents’ disabilities. A nursing home’s
management decisions—decisions to save money by understaffing,
or by permitting dangerous conditions on the premises—almost by
definition entail business or managerial judgment, not professional
care-giving judgments. Good management, not good medicine,
exterminates fire ants so that they do not attack residents in their
beds.433 Much the same can be said about conditions of the
premises dangerous to residents who suffer from dementia and
tend to wander. If the premises give access to upper-story windows,
a fall is foreseeable,434 and if the premises are sited on an unfenced
542
canal, drowning is the danger to be avoided by supervision or

fencing.435 If the trier of fact can conclude that open upper
windows are dangerous to children,436 it seems equally appropriate
to permit the trier to draw similar conclusions about premises
safety in health care institutions as a matter of ordinary negligence
law without medical overtones. The claim that personal restraints
should have been imposed to protect wandering residents,
however, differs from a claim of danger resulting from premises
designs or defects, from negligent supervision, and from needlessly
risky management decisions. There are serious concerns about
undue personal restraints, so the mere absence of a restraint
without more does not necessarily permit an inference of
negligence.437 However, an alarm that alerts the staff when an
unable resident attempts to get out of bed is an alternative to bed
rails and intrusive restraints.438 Supervision of exits is another
alternative to prevent wandering into danger outside the home.439
§ 21.21 Common-Law Claims Against Nursing
Homes
Apart from statutory actions,440 a number of major claims for
nursing home injury are possible.
Suits against staff members. Suits against staff members who
physically attack or sexually abuse a resident easily fit the
definition of battery,441 and suits against staff members for
restraint of the resident by unnecessary physical or chemical
constraints, may fit either false imprisonment or negligence
theories.442 Conceivably, a staff member who is not himself an
abuser would have a duty to report abuse caused by others, and
would be potentially liable for failing to do so. Suits against such a
staff member, however, are practically unlikely to produce an
enforceable judgment against the individual.
Nursing homes’ vicarious liability for intentional abuse by staff.
The nursing home may itself be liable for abuse by its servants,
purely as a matter of vicarious liability. Some courts take a narrow
view of vicarious liability that might exclude vicarious
543
liability in the case of a staff rape of a resident,443 but it is not

true that rape is necessarily outside the scope of employment.
Where the employment enhances a risk of intentional harms, or
provides the impetus or particular opportunity for such harms, as
where the job gives the rapist a great deal of power over his victim,
vicarious liability, even for so personal a tort as rape has been
imposed.444 The description exactly fits institutional care settings
and a little authority has recognized vicarious liability for sexual
attacks on institutionalized persons.445
Negligent hiring, retention, or supervision of an employee. The
nursing home may be liable for its own negligence in hiring,
retaining, or supervising dangerous or incompetent staff members
that put residents at risk. For example, it is liable for an aid’s
sexual assault if it negligently failed to check the aid’s criminal
background and if a reasonable investigation would have revealed
that he was dangerous or could not be licensed.446 Even if the
nursing home is not negligent in hiring, it may be negligent in
failing to discharge, discipline, or supervise a staff member whose
behavior has given notice that he may be dangerous.447
Negligent protection of residents from employees and others. A
defendant’s duty to protect the plaintiff may arise either because of
his relationship with the dangerous person or because of his
relationship with the plaintiff.448 The nursing home does not
breach its duty of care arising from a relationship with a
dangerous employee unless it knows, or in the exercise of ordinary
care should know of the danger. If the home has investigated the
employee’s background and found no criminal record and his work
has not given reason for concern, the home is not negligent in
hiring or retaining the employee, but may be in breach of its duty
arising from its relationship with the resident.449 In the same way,
if reasonable care requires constant supervision of a helpless
resident, the nursing home may be held liable for an unknown
assailant’s rape of the patient, whether he was an employee or
not.450
Understaffing. One of the most common complaints is that some
nursing homes systematically understaff the institution, a major
cost-saving for nursing home chains.451 Understaffing is indeed the
most obvious explanation for failure to provide adequate food
544
and hydration452 and for advanced bedsores, which almost

never occur unless the staff fails to periodically reposition the
immobilized resident. Some appellate cases have upheld liabilities
imposed in whole or part for injuries or death resulting ultimately
from understaffing.453 Federal statutes mandate some
rudimentary staffing levels—one nurse, for example454—but these
are not proportioned to the number of residents. In some of the
cases, the injuries are so egregious that understaffing seems
almost impossible to deny, and federal officials do attempt to
enforce a degree of accountability through administrative
procedures.455 In closer cases, however, plaintiffs may encounter
difficulties in proving a staffing standard to which the residents
are entitled and also in proving factual causation.
Particular acts of negligence. Understaffing and poor training
are the root causes of many particular acts of negligence. However,
in many suits, the plaintiff may concentrate on the immediate and
specific cause, such as failure to provide prescribed medications,
failure to feed, failure to turn the immobile resident to prevent
ulcerations, many acts and omissions causing falls, and failures in
supervision and security that permit disoriented residents to
wander into the nearest street or canal.456 In addition, nursing
homes are expected to observe the condition of residents and
provide a nursing diagnosis. Failure to notify the resident’s
physician when the resident’s condition changes or calls for
medical attention is another likely source of complaint.457
Statutes and their subsidiary regulations are a major presence
in nursing home operation and litigation. At a minimum, they are
part of the regulatory structure under which government agencies
attempt both to finance nursing care and to bring that care up to
minimal standards. The structure, the concepts, and the language
of the statutes are heavily influenced by the regulatory culture out
of which they grew, sometimes leading to imperfect coherence as
documents of tort law. Statutes may create a private right of
action; may be given negligence per se effect; or may restrict or
revise remedies or impose procedural obstacles.
Federal Nursing Home Statutes
Aims. The dual aim of federal statutes is to finance nursing
home construction and operation by paying directly or indirectly
for Medicare or Medicaid residents and to
545
require a minimum quality of care. The quality is required by

conditioning payment upon meeting statutory standards.
Federal standards and required results. Many of the standards
spelled out in the statutes or their subsidiary regulations could
resolve issues in tort litigation against nursing homes. Unlike
some of the state Resident Rights statutes that do not address
rights to care, the federal statutes provide some minimal rules
against neglect and abuse.458 The general principle is that the
facility “must care for its residents in such a manner and in such
an environment as will promote maintenance or enhancement of
the quality of life of each resident.” Beyond that, however, the
federal statutes include a few specific standards or rules, including,
for example, a requirement that the nursing home make an
assessment of each individual resident and provide a care plan
appropriate to her condition.459 Nutrition and other services must
be provided in accord with the patient’s condition.460 Regulations
are more specific. For example, one regulation flatly provides that
the nursing home must ensure that a resident who enters without
pressure sores does not develop them in the nursing home, barring
some unavoidable reason—seemingly a mandatory result, not a
direction for specific acts of care.461
A private right of action? The federal nursing home statutes do
not expressly create a private right of action, and courts have said
that they create no implied right of action either.462 However, it
has been held that the most notable section of the nursing home
statutes463 does vest specific rights in individual nursing home
residents and does mandate their observance by the nursing
homes, with the result that violation of those rights can be
redressed in a civil rights claim against those acting under color of
state law.464
Use of federal standards in state law. Since there is no federal
system of common law tort responsibility, the absence of a private
right of action under the federal statutes usually dooms federal-law
claims, with the possible exception of civil rights claims. However,
that does not rule out the possibility that state courts will choose to
adopt federal standards as their own, treating violation of the
federal standards as negligence per se or at least as evidence of
negligence. State court adoption of federal standards for tort
litigation is theoretically sound and not uncommon,465 so it is no
surprise that courts have incorporated federal nursing home
standards into state law.466 State statutes themselves may
indicate a desire to comport with federal standards.467 However, in
line
546
with the general rule,468 statutes or regulations cannot be used

to establish negligence per se when they merely state an abstract
general principle or goal without specifying particular conduct
required. A federal statute or regulation that merely requires
appropriate care would surely be in this category.469
State Nursing Home Statutes
Statutes creating standards of care or not. Most states have
enacted statutes affecting nursing homes, either as part of a more
general elder protection law or as a direct regulation of nursing
homes and sometimes other long-term care institutions. Some
statutes are the Residents’ Bill of Rights type. These protect
residents against financial exploitation and create a host of specific
rights related to discrimination, communication, privacy, and
informed consent. This type of statute standing alone may profess
a general condemnation of abuse or neglect, but usually does not
directly specify particular rules or the nursing homes’ standard of
care for the residents’ physical and mental well-being.470 Other
statutes, however, appear to adopt general or specific standards of
care intended to protect residents against both abuse and
neglect.471 A statute may even create a private right of action for
violation of any right of a resident created by any other statutes,
state and federal.472 Even so, the regulatory, non-tort focus of
many statutes is reflected in the fact that some statutes may create
“a private right of action” without including standards of care for
physical well-being that are specific and meaningful enough to
guide the jury or substitute for expert testimony.473
Adding remedies. Statutes that go beyond the Residents’ Bill of
Rights may create a new cause of action for nursing home abuse or
neglect, or at least add new remedies and remove limitations and
impediments to suit. Permitting the prevailing plaintiff’s attorney
to recover a reasonable attorney fee, for example, tends to
encourage representation in notoriously difficult nursing home
claims where the damages may be small and the contingent fee
limited. Some statutes have expressly mandated an award of
attorney’s fees by the prevailing plaintiff,474 but within that group
of statutes one sees some additional restrictions on fee awards.475
Some statutes permit but do not require
547
an award of fees to the prevailing plaintiff, making the

attorney’s prospect for adequate payment chancy.476 Others
expressly exclude recovery of attorney’s fees.477
Removing impediments to suit. A few statutes, especially those
that are regarded as creating a new cause of action, may remove
impediments that otherwise might impair the ability of nursing
home victims to pursue claims. California’s statute is perhaps best
known. It leaves California’s damages caps in place, but allows the
estate of a deceased resident to claim pain and suffering damages
that are otherwise rejected in claims by a decedent’s estate.478
Florida’s statute exempts the nursing home claimant from the
strictures of the statutes that offer special protections for
malpractice defendants,479 and it has been held that contracts with
prospective nursing home residents for limiting damages may be
avoided under the policy established by the state’s protective
statutes.480
Statutory shift of proof burden, statutory res ipsa loquitur or
semi-strict liability. State statutes may expressly shift the burden
of proof or persuasion, so that the nursing home defendant must
show, as an affirmative defense, that it exercised “all care
reasonably necessary” to prevent the resident’s injury or
deprivation.481 Other statutes specify results to be achieved or
injuries to be avoided rather than acts to be carried out. For
instance, a California provision defines neglect of an elder in terms
of negligence law, but adds that failure to prevent malnutrition or
dehydration also count as neglect.482 If this dehydration and other
forbidden conditions are actionable in themselves,483 the plaintiff
would not be required to prove any particular misconduct, only the
injury—malnutrition or dehydration. Liability based on proof of
malnutrition, dehydration, or the like, occurring after the resident
enters the nursing home, would not be radical; the same result
might be justified under the common law rules of res ipsa
loquitur.484
Conflict with protective medical malpractice statutes. Nursing
home statutes aim at better protection for nursing home residents.
They are potentially in conflict with the aims of the protective
medical malpractice statutes already mentioned—those that seek
to minimize exposure of physicians, surgeons, hospitals and other
health care providers.485 Courts have reacted somewhat variously
to this problem. Some courts believe that nursing homes are health
care providers and that the medical malpractice rules and
standards govern in all cases, regardless of the kind of negligence
or injury.486 Other courts have struggled to find ways of defining
what claims against nursing homes fall within the plaintiff-
favorable nursing home statutes and what claims fall within the
548
defendant-favorable protective statutes for medical
malpractice.487 One way to determine whether the protective
statutes apply is to examine the nature of the alleged negligent
acts; if they are “medical” acts or omissions, the protective statutes
apply, otherwise they do not.488
________________________________
1 §§ 21.3 & 21.4.
2 § 21.6 (duty of reasonable care).
3 § 21.5 & 21.6. In some cases, predetermined guidelines set by a
government agency might be adopted as standards. See 2 Dobbs, Hayden
& Bublick, The Law of Torts § 295 (2d ed. 2011 & Supp.).
4 § 21.7. Non-medical practitioners—chiropractors, for example—
are held to similar rules, but their standards are set by the particular kind
of health care they profess. Thus if a chiropractor holds himself out as
such, he will be held to the standard of other chiropractors in the relevant
chiropractic community. See, e.g., Felton v. Lovett, 388 S.W.3d 656 (Tex.
2012). However, if he holds himself out as a podiatrist he is held to the
standard of a podiatrist, see, e.g., Creasey v. Hogan, 292 Or. 154, 637 P.2d
114 (1981), and if he claims to be a physician he will be held to that
standard, see, e. g., Brown v. Shyne, 242 N.Y. 176, 151 N.E. 197 (1926).
5 § 21.7.
2011 & Supp.). Courts have utilized three different broad approaches to
the standard of care for licensed residents. See Joseph H. King, The
Standard of Care for Residents and Other Medical School Graduates in
Training, 55 Am. U. L. Rev. 683 (2006).
2011 & Supp.).
8 § 21.7.
(2d ed. 2011 & Supp.).
10 § 21.8.
11 § 21.5.
12 Id.
13 § 21.9.
14 § 21.12.
15 §§ 21.10 & 21.11.
16 § 21.13.
17 § 21.14.
18 §§ 21.5 & 21.6.
19 See Hill v. Fairfield Nursing & Rehabilitation Center, LLC, 134
So.3d 396 (Ala. 2013); Fein v. Permanente Med. Group, 38 Cal.3d 137, 211
Cal. Rptr. 368, 695 P.2d 665 (1985); Berdyck v. Shinde, 66 Ohio St.3d 573,
613 N.E.2d 1014 (1993).
20 See Cox v. M.A. Primary and Urgent Care Clinic, 313 S.W.3d 240
(Tenn. 2010). State statutes may require that physician assistants be held
to the standard of the supervising physician. See, e.g., Mich. Comp. L.
Ann. § 333.17078(2).
21 See Downing v. Hyland Pharmacy, 194 P.3d 944 (Utah 2008). The
professional duty of pharmacists has been undercut in many states by
rulings as a matter of law that if the pharmacist accurately fills a
physician’s prescription, he has no duty to warn the patient that the
dosage is too high, or that the drug has special dangers. See, e.g.,
Springhill Hospitals, Inc. v. Larrimore, 5 So.3d 513 (Ala. 2008); see also
David J. Marchitelli, Annotation, Liability of Pharmacist Who Accurately
Fills Prescription for Harm Resulting to User, 44 A.L.R.5th 393 (1996).
Other states have recognized a pharmacist’s duty to warn a patient where
the pharmacist actually knows of some problem, such as where the drug
prescribed is contraindicated for the patient’s condition, see, e.g., Happel v.
Wal-Mart Stores, Inc., 199 Ill.2d 179, 766 N.E.2d 1118, 262 Ill.Dec. 815
(2002); Moore v. Memorial Hospital of Gulfport, 825 So.2d 658 (Miss.
2002). Federal and state statutes often place pharmacists under special
duties to counsel patients. See, e.g., 42 U.S.C.A. § 1396r–8(g); Cal. Bus. &
Prof. Code § 4074.
22 See Rehabilitative Care System of America v. Davis, 73 S.W.3d
233 (Tex. 2002).
23 Douglas v. Freeman, 117 Wash.2d 242, 814 P.2d 1160 (1991)
(dental clinic).
24 Stone v. Proctor, 259 N.C. 633, 131 S.E.2d 297 (1963)
(psychiatrist, electroshock treatments); Michael L. Perlin, Law and Mental
Disability § 3.02 (1994); see Vilcinskas v. Johnson, 252 Neb. 292, 562
N.W.2d 57 (1997) (by implication).
25 See § 21.7.
26 E.g., Simon v. Drake Constr. Co., 87 Ohio App.3d 23, 621 N.E.2d
837 (1993).
27 Affiliated FM Ins. Co. v. LTK Consulting Services, Inc., 170 Wash.
2d 442, 243 P.3d 521 (2010).
28 See Chapter 45.
29 District of Columbia v. Hampton, 666 A.2d 30 (D.C. 1995);
Advincula v. United Blood Servs., 176 Ill.2d 1, 678 N.E.2d 1009, 223
Ill.Dec. 1 (1996).
N.W.2d 697 (2001).
31 See § 21.6.
32 E.g., United Blood Servs., Div. of Blood Systems, Inc. v. Quintana,
827 P.2d 509 (Colo. 1992); see § 21.6.
33 See, e.g., Kananen v. Alfred I. DuPont Inst. of Nemours Found.,
796 A.2d 1 (Del. Super.), aff’d, 768 A.2d 470 (Del. 2000); Smith v.
Pavlovich, 394 Ill.App.3d 458, 466, 914 N.E.2d 1258, 1266 (2009).
34 Adams v. Via Christi Reg’l Med. Ctr., 270 Kan. 824, 19 P.3d 132
(Kan. 2001); Kelley v. Middle Tennessee Emergency Physicians, P.C., 133
S.W.3d 587, 593 (Tenn. 2004); Didato v. Strehler, 262 Va. 617, 554 S.E.2d
42 (2001); see James L. Rigelhaupt, Jr., Annotation, What Constitutes
Physician-Patient Relationship for Malpractice Purposes, 17 A.L.R.4th 132
(1982).
35 Walters v. Rinker, 520 N.E.2d 468 (Ind. Ct. App. 1988) (“The
important fact in determining whether the relationship is a consensual
one, however, is not who contracted for the service but whether it was
contracted for with the express or implied consent of the patient or for his
benefit.”) (emphasis added); Kelley v. Middle Tennessee Emergency
Physicians, P.C., 133 S.W.3d 587, 593 (Tenn. 2004). See also Olson v.
Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (2012) (surgeon owed no duty to
kidney donor during allegedly negligent treatment in which the kidney
was damaged).
36 See Garcia v. Lifemark Hospitals of Fla., 754 So.2d 48 (Fla. Dist.
Ct. App. 1999) (emergency room doctor’s duty was to treat the emergency
condition, not to test for psychiatric conditions that might lead to suicide).
37 Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607 (2000)
(consensual sexual relationship with patient not medical malpractice; if it
is not some other tort, no liability).
38 See Kananen v. Alfred I. DuPont Institute of Nemours
Foundation, 796 A.2d 1 (Del. Super. 2000), aff’d, 768 A.2d 470 (Del. 2000)
(hospital owes no duty to bystander-parent who fainted while watching
treatment of her small child). As to the statutory duty of hospitals to
accept emergency patients, see § 21.17.
39 Gilbert v. Miodovnik, 990 A.2d 983 (D.C. 2010) (physician
consulting with nurse-midwives unknown to patient, no doctor patient-
relationship, no duty); Jennings v. Badgett, 230 P.3d 861 (Okla. 2010)
(physician consulting with another physician, no contact with patient, no
duty, although consulting physician knew patient’s physician would rely
on his advice).
40 See, e.g., Nold ex rel. Nold v. Binyon, 272 Kan. 87, 31 P.3d 274
(2001).
41 See, e.g., Adams v. Via Christi Regional Medical Center, 270 Kan.
824, 19 P.3d 132 (2001) (telephone conversation with mother of adult
daughter, with “advice” to take daughter to emergency room if pain
became worse, generated a doctor-patient relationship with the daughter);
Mozingo v. Pitt County. Memorial Hospital, Inc., 331 N.C. 182, 415 S.E.2d
341 (1992) (noting changing practice and increased reliance on teams of
health care providers, some of whom do not see patient); see also Mead v.
Legacy Health System, 352 Or. 267, 283 P.3d 904 (2012) (the standard for
determining whether a doctor who has not personally seen a patient
nonetheless has a doctor-patient relationship with that patient is whether
the doctor either knows or should know that he or she is diagnosing the
patient’s condition or treating the patient; there is no requirement that the
doctor must actually intend to participate in such diagnosis or treatment).
For a discussion of the duties owed by on-call physicians, who often speak
to patients via telephone or email, see 2 Dobbs, Hayden & Bublick, The
Law of Torts § 287 (2d ed. 2011 & Supp.). Mainstream cases recognize a
duty of care owed to patients triggered by the doctor’s acceptance of on-call
status. Id.
42 See Lam v. Global Med. Sys., Inc., 127 Wash. App. 657, 111 P.3d
1258 (2005) (medical consulting service, contracting with ship operators to
provide telephonic medical advice while ship was at sea was under a duty
of care to seaman who took ill); Lownsbury v. VanBuren, 94 Ohio St. 3d
231,762 N.E.2d 354 (2002).
43 § 25.1.
44 See MCG Health, Inc. v. Casey, 269 Ga.App. 125, 603 S.E.2d 438
(2004) (“Administrative, clerical, or routine acts demanding no special
expertise fall in the realm of simple negligence. We have previously held
that a nurse’s failure to activate an alarm, as a doctor ordered, was
ordinary negligence”); Sullo v. Greenberg, 68 A.3d 404 (R.I. 2013) (patient
fell on entrance ramp of doctor’s office; normal landlowner-invitee duty
applied, not any special professional duty).
45 E.g., Nold ex rel. Nold v. Binyon, 272 Kan. 87, 31 P.3d 274 (2001);
Hoover v. Williamson, 236 Md. 250, 203 A.2d 861 (1964); Meinze v.
Holmes, 40 Ohio App.3d 143, 532 N.E.2d 170 (1987).
46 Healthone v. Rodriguez, 50 P.3d 879 (Colo. 2002); Smith v. Welch,
265 Kan. 868, 967 P.2d 727 (1998).
47 Courts have usually rejected a duty of care to the examinee for
such economic harms. See, e.g., Martinez v. Lewis, 969 P.2d 213 (Colo.
1998); Woodruff v. Gitlow, 91 A.3d 805 (R.I. 2014).
48 See, e.g., Greenberg v. Perkins, 845 P.2d 530 (Colo. 1993); Dyer v.
Trachtman, 470 Mich. 45, 679 N.W.2d 311(2004); Harris v. Kreutzer, 271
Va. 188, 624 S.E.2d 24 (2006).
49 Lee v. City of New York, 162 A.D.2d 34, 560 N.Y.S.2d 700 (1990)
(broadly stating that “[t]he physician-patient relationship does not exist if
the physician is retained solely to examine an employee on behalf of an
employer” although in fact the claim was for failing to diagnose, not failing
to disclose a condition the physician actually discovered).
50 See Ervin v. American Guardian Life Assurance Co., 376
Pa.Super. 132, 545 A.2d 354 (1988) (physician retained by insurer;
physician “owed no duty to the plaintiff’s decedent either to discover his
heart problem or, having discovered it, to inform the decedent thereof”).
51 See § 25.7.
52 See Stanley v. McCarver, 208 Ariz. 219, 223, 92 P.3d 849, 853
(2004) (physician contracted with another to interpret plaintiff’s X-rays
and in so doing “he undertook a professional obligation with respect to Ms.
Stanley’s physical well-being”).
53 Some of the no-duty cases are actually cases in which the doctor
was retained only to screen records and did not examine the patient at all.
Judy v. Hanford Envtl. Health Found., 106 Wash.App. 26, 22 P.3d 810
(2001).
54 Green v. Walker, 910 F.2d 291 (5th Cir. 1990) (doctor conducting
exams for employer had “a duty to conduct the requested tests and
diagnose the results thereof, exercising the level of care consistent with
the doctor’s professional training and expertise, and to take reasonable
steps to make information available timely to the examinee of any findings
that pose an imminent danger to the examinee’s … well-being”); Stanley v.
McCarver, 208 Ariz. 219, 92 P.3d 849 (2004); Reed v. Bojarski, 166 N.J. 89,
764 A.2d 433 (2001).
55 Hoover v. Williamson, 236 Md. 250, 203 A.2d 861 (1964)
(allegations that physician examining employee for employer actually
advised employee wrongly was sufficient to show an undertaking).
56 See, e.g., B.R. ex rel. Jeffs v. West, 275 P.3d 228 (Utah 2012)
(providers prescribed medication to patient that allegedly caused the
patient to become violent and shoot and kill his wife).
57 McKenzie v. Hawai’i Permanente Med. Group, Inc., 98 Hawai’i
296, 47 P.3d 1209 (2002) (recognizing duty to warn); Wilschinsky v.
Medina, 108 N.M. 511, 775 P.2d 713 (1989); Kaiser v. Suburban Transp.
Sys., 65 Wash.2d 461, 398 P.2d 14 (1965).
58 Coombes v. Florio, 450 Mass. 182, 877 N.E.2d 567 (2007) (failure
to warn medicated patient); Duvall v. Goldin, 139 Mich. App. 342, 362
N.W.2d 275 (1984) (failure to diagnose and failure to warn of epilepsy).
59 Taylor v. Smith, 892 So.2d 887 (Ala. 2004); Cheeks v. Dorsey, 846
So.2d 1169 (Fla. Dist. Ct. App. 2003) (methadone allegedly given to patient
already on drugs, with resulting incapacity that caused vehicular crash,
killing the plaintiff’s decedent and her daughter).
60 Reisner v. Regents of Univ. of Cal, 31 Cal. App. 4th 1195, 37 Cal.
Rptr. 2d 518 (1995); DiMarco v. Lynch Homes-Chester County, Inc., 525
Pa. 558, 583 A. 2d 422 (1990); Estate of Amos v. Vanderbilt Univ., 62
S.W.3d 133 (Tenn. 2001).
61 Pate v. Threlkel, 661 So.2d 278 (Fla.1995) (physician’s duty to
warn patient of genetic condition that might have been passed on to
daughter); Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 10 Ill. Dec. 484, 367
N.E.2d 1250, 91 A.L.R.3d 291 (1977) (negligent blood transfusion resulted
in harm to child conceived many years later); Molloy v. Meier, 679 N.W.2d
711 (Minn. 2004) (physician treating child had duty to advise child’s
mother or a surrogate that child’s condition was genetically caused so
mother could avoid conceiving another child).
62 Iodice v. United States, 289 F.3d 270 (4th Cir. 2002) (defendants
knew patient was an addict to drugs and alcohol but kept overproviding
drugs instead of insisting on treating addiction, no duty under North
Carolina law).
63 As in Kolbe v. State, 661 N.W.2d 142 (Iowa 2003). See also Jarmie
v. Troncale, 306 Conn. 578, 50 A.3d 802 (2012) (no duty to warn non-
patient, in part because of interference with duties owed to patient, in part
because of legislative scheme of non-liability to non-patients in medical
malpractice cases).
64 Hardee v. Bio-Medical Apps. of S.C., Inc., 370 S.C. 511, 516, 636
S.E.2d 629, 632 (2006) (“Importantly, this duty owed to third parties is
identical to the duty owed to the patient, i.e., a medical provider must
warn a patient of the attendant risks and effects of any treatment. Thus,
our holding does not hamper the doctor-patient relationship.”); see also
Coombes v. Florio, 450 Mass. 182, 877 N.E.2d 567 (2007) (opinion of
Ireland, J.).
65 On the other hand, some have said no such duty should be
imposed. See, e.g., McNulty v. City of New York, 100 N.Y.2d 227, 792
N.E.2d 162, 762 N.Y.S.2d 12 (2003) (seeing “the danger that a recognition
of a duty would render doctors liable to a prohibitive number of possible
plaintiffs,” holding that doctor would owe a duty to a non-patient only if
the danger arose from his actual treatment of the patient, and that mere
failure to warn a person who had no particular relation to the patient
would not be actionable).
66 Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993) (warning to wife
of husband’s Rocky Mountain Spotted Fever and necessity of avoiding
ticks which carry it).
67 This usually arises when the physician or therapist is treating a
patient for a mental disorder or emotional problems. If the patient’s
threats or other behavior indicates that he may attack others, many
states, following the leading case, Tarasoff v. Regents of Univ. of Cal., 17
Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976), impose a duty to warn
those others. See § 26.11.
68 Leonard v. State, 491 N.W.2d 508 (Iowa 1992) (institution holding
dangerous patient had duty to control, but only for benefit of identified
victims).
69 See Restatement Third of Torts: Liability for Physical and
Emotional Harm § 41, cmt. h (2010).
70 See Bellah v. Greenson, 81 Cal.App.3d 614, 146 Cal.Rptr. 535
(1978) (the therapist is under a duty of care to patient to use care to
prevent the patient’s suicide, but that does not include a duty to warn
family members, which would entail breach of confidentiality and might
impair therapy).
71 Calwell v. Hassan, 260 Kan. 769, 925 P.2d 422 (1996) (treating a
failure to warn the patient as a failure to control the patient).
72 See § 26.11.
73 Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr.
14, 551 P.2d 334 (1976); Emerich v. Phila. Ctr. for Human Dev. Inc., 554
Pa. 209, 720 A.2d 1032 (1998). A court recognizing the duty of care for the
benefit of potential victims may also hold that it encompasses a duty to
make a professionally proper diagnosis of the patient and so to recognize
the dangers he poses to others or himself. Schuster v. Altenberg, 144
Wis.2d 223, 424 N.W.2d 159 (1988).
74 Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999); Nasser v. Parker,
249 Va. 172, 455 S.E.2d 502 (1995).
75 Thus, some courts invoke the control rule when the physician has
created a risk by prescribing or injecting medication without appropriate
warnings. See Shortnacy v. N. Atlanta Internal Medicine, P.C., 252 Ga.
App. 321, 556 S.E.2d 209 (2001) (seemingly the case, although the
negligence was not clearly specified).
76 Calwell v. Hassan, 260 Kan. 769, 925 P.2d 422 (1996).
77 Estate of Morgan v. Fairfield Family Counseling Center, 77 Ohio
St.3d 284, 673 N.E. 2d 1311 (1997), abrogated in part by Ohio Rev. Code §
5122.34.
78 Kirk v. Michael Reese Hosp. and Med. Ctr., 117 Ill.2d 507, 513
N.E.2d 387, 111 Ill.Dec. 944 (1987); Leonard v. State, 491 N.W.2d 508
(Iowa 1992).
79 Werner v. Varner, Stafford & Seaman, P.A., 659 So.2d 1308 (Fla.
Dist. Ct. App. 1995) (failure to warn patient of driving danger, duty only to
identified victims; hence no liability for injuries caused in driving); cf.
Britton v. Soltes, 205 Ill. App. 3d 943, 563 N.E.2d 910, 150 Ill. Dec. 783
(1990) (physician failed to diagnose patient’s TB, neighbor was infected as
a result; no relationship that “necessarily” would cause harm); Leonard v.
State, 491 N.W.2d 508 (Iowa 1992) (defendants “had a duty to control [the
patient’s] conduct, or at least not negligently to release him from custody,”
but the duty does not run to the general public).
80 See Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133, 137 (Tenn.
2001).
81 Estate of Morgan v. Fairfield Family Counseling Center, 77 Ohio
St.3d 284, 673 N.E.2d 1311 (1997).
82 Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991) (relationship,
foreseeability, public policy); J.A.H. v. Wadle & Assocs., P.C., 589 N.W.2d
256 (Iowa 1999) (same).
83 See § 21.6.
84 Exceptions include: (1) cases of obvious negligence or res ipsa
loquitur; (2) cases of non-medical negligence; and (3) cases of informed
consent where expert testimony as to standards is not necessarily
required.
85 On the requirement of expert testimony, see § 21.8.
86 A standard—such as the reasonable person standard—has
generality, does not change, and frequently leaves room for judgment calls.
The term “standard” as used in medical claims lacks these characteristics.
Thus “[t]here are virtually thousands of standards of care pertaining to
health-care services in the United States today.” Eleanor D. Kinney, The
Brave New World of Medical Standards of Care, 29 J.L. Med. & Ethics 323
(2001).
87 Walski v. Tiesenga, 72 Ill.2d 249, 21 Ill. Dec. 201, 381 N.E.2d 279
(1978) (requiring expert testimony as to the medically accepted method of
cutting in performing a thyroidectomy).
88 Lake v. McCollum, 295 S.W.3d 529 (Mo. App. 2009) (testimony
that in light of patient’s condition, administration of specified drugs
violated the standard of care).
89 E.g., Mody v. Ctr. for Women’s Health, P.C., 998 A.2d 327 (D.C.
2010).
90 See § 21.7.
91 See Osborn v. Irwin Mem. Blood Bank, 5 Cal. App. 4th 234, 7 Cal.
Rptr. 2d 101 (1992) (“professional prudence is defined by actual or
accepted practice within a profession, rather than theories about what
‘should’ have been done”); Palandjian v. Foster, 446 Mass. 100, 105, 842
N.E.2d 916, 921 (2006) (“because the standard of care is determined by the
care customarily provided by other physicians, it need not be scientifically
tested or proven effective: what the average qualified physician would do
in a particular situation is the standard of care”). See also Philip G. Peters,
Jr., The Role of the Jury in Modern Malpractice Law, 87 Iowa L. Rev. 909
(2002).
92 See William Meadow & Cass R. Sunstein, Statistics, Not Experts,
51 Duke L. J. 629 (2001) (advocating generation and use of statistical data
about actual practices as opposed to opinion evidence about those practices
presented by witnesses); William Meadow, Operationalizing the Standard
of Medical Care: Uses and Limitations of Epidemiology to Guide Expert
Testimony in Medical Negligence Allegations, 37 Wake Forest L. Rev. 675
(2002) (similar).
93 See, e.g., Robinson v. Okla. Nephrology Associates, Inc., 154 P.3d
1250 (2007) (only reported testimony on standard was that defendant
“violated acceptable standards when he did not hospitalize Mrs. Robinson
as soon as he knew of her critically low blood sodium level”); Bitar v.
Rahman, 272 Va. 130, 630 S.E.2d 319 (Va. 2006) (“Dr. Jacobs opined that
Dr. Bitar, in planning and performing the abdominoplasty, breached the
standard of care because Dr. Bitar pre-determined the amount of tissue to
be removed.”).
94 E.g., Keebler v. Winfield Carraway Hosp., 531 So.2d 841 (Ala.
1988) (“such reasonable care, diligence, and skill as reasonably competent
physicians” in the relevant medical community would exercise in the same
or similar circumstances); Purtill v. Hess, 111 Ill.2d 229, 489 N.E.2d 867,
95 Ill.Dec. 305 (1986) (knowledge, skill, and care of a reasonably well-
qualified physician in the relevant medical community).
95 See § 21.7.
96 See Marsingill v. O’Malley, 128 P.3d 151, 161 (Alaska 2002).
97 Weiss v. Rojanasathit, 975 S.W.2d 113 (Mo. 1998) (“where the
doctor knows or should know that a condition exists that requires further
medical attention to prevent injurious consequences, the doctor must
render such attention or must see to it that some other competent person
does so”); King v. Flamm, 442 S.W.2d 679 (Tex. 1969).
98 Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000), abrogated on
other grounds by S.D.C.L. § 20–9–1.1.
99 King v. Flamm, 442 S.W.2d 679 (Tex. 1969); Vito v. North Medical
Family Physicians, P.C., 16 A.D.3d 1039, 791 N.Y.S.2d 797 (2005).
100 Rise v. United States, 630 F.2d 1068 (5th Cir. 1980) (also noting
that the referring physician may, in some circumstances, owe a duty of
care to supervise or review the work of the second physician).
101 Kardos v. Harrison, 980 A.2d 1014 (Del. 2009) (even under
Delaware’s rule that lost chance is sufficient, evidence failed to show loss
of patient’s chance had referral been made); Goldberg v. Horowitz, 73
A.D.2d 691, 901 N.Y.S.2d 95, 98 (2010) (improved chance or better
outcome, evidence sufficient); Bryan v. Sherick, 279 S.W.3d 731 (Tex. App.
2007) (failure to refer not actionable without proof that prompt referral
would have led to less harm).
102 See Harris v. Raymond, 715 N.E.2d 388 (Ind. Ct. App. 1999); cf.
Robinson v. St. John’s Med. Ctr., Joplin, 508 S.W.2d 7 (Mo. 1974) (hospital
nurse recorded sponge count erroneously, resulting in sponge left in the
operating field).
103 Cox v. Paul, 828 N.E.2d 907 (Ind. 2005) (reasonable care duty
owed to warn patient that FDA had now warned of dangers of the
temporomandibular joint replacement the defendant had provided years
earlier).
104 The professional standard is irrelevant to non-professional
activities, for example, to slippery floors in a hospital, see Self v. Exec.
Comm. Ga. Baptist Convention of Ga., Inc., 245 Ga.548, 266 S.E.2d 168
(1980), or a physician’s failure to warn co-workers that a patient is
dangerous, see Powell v. Catholic Medical Ctr., 145 N.H. 7, 749 A.2d 301
(2000). Sometimes it is difficult to differentiate bad housekeeping and bad
medical care, as where rats in a hospital repeatedly bit a comatose patient.
See LeJeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990).
105 Vergara v. Doan, 593 N.E.2d 185 (Ind. 1992); Burns v. Metz, 245
Neb. 428, 513 N.W.2d 505 (1994).
106 McLaughlin v. Sy, 589 A.2d 448 (Me. 1991).
107 See Boyanton v. Reif, 798 P.2d 603 (Okla. 1990).
108 See Beach v. Lipham, 276 Ga. 302, 578 S.E.2d 4092 (2003) (three-
way split, majority holding the presumption instruction not error but
saying it should be revised, other judges arguing that the presumption
instruction should not be mentioned at all).
109 See Tennant v. Marion Health Care Foundation, Inc., 194 W.Va.
97, 459 S.E.2d 374 (1995).
110 See Dotson v. Hammerman, 932 S.W.2d 880 (Mo. App. 1996) (“An
honest error of judgment in making a diagnosis is insufficient to support
liability unless that mistake constitutes negligence”); Donaldson v.
Maffucci, 397 Pa. 548, 156 A.2d 835 (1959); Bryan v. Burt, 486 S.E.2d 536
(Va. 1997) (“A physician is neither an insurer of diagnosis and treatment
nor is the physician held to the highest degree of care known to the
profession. The mere fact that the physician has failed to effect a cure or
that the diagnosis and treatment have been detrimental to the patient’s
health does not raise a presumption of negligence.”).
111 See Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984) (jury
instructed at least three times that doctor was not a guarantor or insurer).
112 See Passarello v. Grumbine, 87 A.3d 285 (Pa. 2014) (disapproving
such instructions on this ground, and surveying a number of other states).
113 Bratton v. Bond, 408 N.W.2d 39 (Iowa 1987) (unless, perhaps,
where the plaintiff asserts a warranty claim); Wall v. Stout, 310 N.C. 184,
197, 311 S.E.2d 571, 579 (1984) (“an instruction to the effect that a
physician is ‘not an insurer of results’ should not be given when no issue
concerning a guarantee has been raised”).
114 Jones v. Porretta, 428 Mich. 132, 405 N.W.2d 863 (1987);
Christensen v. Munsen, 123 Wash.2d 234, 867 P.2d 626, 30 A.L.R.5th 822
(1994).
115 See Harris v. Groth, 99 Wash.2d 438, 663 P.2d 113 (1983).
116 See David v. McLeod Regional Med. Ctr., 367 S.C. 242, 247–248,
626 S.E.2d 1, 4 (2006).
117 See Palandjian v. Foster, 446 Mass. 100, 105, 842 N.E.2d 916, 921
(2006).
118 See §§ 12.3 to 12.5.
119 See Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981, 67 A.L.R.3d
175 (1974).
120 Toth v. Cmty. Hosp. at Glen Cove, 22 N.Y.2d 255, 239 N.E.2d 368,
292 N.Y.S.2d 440 (1968); Jackson v. Axelrad, 221 S.W.3d 650 (Tex. 2007);
12 (2010) (“If an actor has skills or knowledge that exceed those possessed
by most others, these skills or knowledge are circumstances to be taken
into account in determining whether the actor has behaved as a
reasonably careful person.”).
121 See Philip G. Peters, Jr., The Quiet Demise of Deference to
Custom: Malpractice Law at the Millennium, 57 Wash. & Lee L. Rev. 163
(2000) (presenting the traditional standard as a special privilege).
122 Tim Cramm, Arthur J. Hartz, & Michael D. Green, Ascertaining
Customary Care in Malpractice Cases: Asking Those Who Know, 37 Wake
Forest L. Rev. 699 (2002) (also casting doubt on the reliability of some
expert testimony).
123 The leading case is Helling v. Carey, 83 Wash.2d 514, 519 P.2d
981 (1974), reaffirmed in Harris v. Groth, 99 Wash.2d 438, 663 P.2d 113
(1983). See also, e.g., Ray v. American Nat’l Red Cross, 696 A.2d 399 (D.C.
1997); Advincula v. United Blood Services, 176 Ill. 2d 1, 678 N.E.2d 1009,
223 Ill. Dec. 1 (1996).
124 Ga. Code. Ann. § 51–1–27 (requiring “a reasonable degree of care
and skill” and providing for tort liability for “injury resulting from a want
of such care and skill”); La. Rev. Stat. Ann. § 9:2794 (couched as a proof
requirement; the plaintiff must prove a lack of appropriate skill or that the
physician “failed to use reasonable care and diligence, along with his best
judgment in the application of that skill”).
125 See Philip G. Peters, Jr., the Quiet Demise of Deference to
Custom: Malpractice Law at the Millennium, 57 Wash. & Lee L. Rev. 163,
189 (2002).
126 The idea seems to have originated in Small v. Howard, 128 Mass.
131 (1880), but courts might have read too much into that case. The
defendant there was a village doctor and not a surgeon, but was required
to do surgery for the plaintiff. The court emphasized that the village doctor
should not be expected to practice at the level of “eminent surgeons” in
large cities. The point seems to have been as much that the defendant was
not a specialist in surgery as that he was practicing in a village.
127 Courts adopting a similar- or national-community rule often point
out that the local conditions are among the circumstances to be taken into
account. E.g., Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968).
128 Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000) (“Our current
medical malpractice regime expects that any physician, rural or urban,
who is uncertain about his ability to treat a patient’s condition will refer
the patient to another who is more skilled or experienced Whether medical
care is administered in a rural or urban setting, among the latest
technology or with the most primitive of instruments, a patient still has
the right to expect competence in his physician’s care.”), abrogated on
other grounds by S.D.C.L § 20–9–1.1.
129 See 1 Barry R. Furrow, Thomas L. Greaney, Sandra H. Johnson,
Timothy S. Jost & Robert L. Schwartz, Health Law § 6–2 (2d ed. 2000).
130 See Pederson v. Dumouchel, 72 Wash. 2d 73, 431 P.2d 973, 31
A.L.R.3d 1100 (1967) (“Negligence cannot be excused on the ground that
others in the same locality practice the same kind of negligence. No degree
of antiquity can give sanction to usage bad in itself.”).
131 See James O. Pearson, Jr., Annotation, Modern Status of “Locality
Rule” in Malpractice Action Against Physician Who Is Not a Specialist, 99
A.L.R.3d 1133 (1980).
132 See Trindle v. Wheeler, 23 Cal.2d 330, 143 P.2d 932 (1943); Morris
v. Thomson, 937 P.2d 1212 (Idaho 1997) (same-locality standard by statute
except when local standard cannot be ascertained).
133 E.g., Purtill v. Hess, 111 Ill.2d 229, 489 N.E.2d 867, 95 Ill.Dec. 305
(1986); Bahr v. Harper-Grace Hosps., 448 Mich. 135, 528 N.W.2d 170
(1995); Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959); DiFranco
v. Klein, 657 A.2d 145 (R.I. 1995). Statutes so provide in some states.
134 Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887, 892
(1975) (in Connecticut, the “general neighborhood” standard means the
whole state).
135 Keebler v. Winfield Carraway Hosp., 531 So.2d 841 (Ala. 1988);
Sheeley v. Mem. Hosp., 710 A.2d 161 (R.I. 1998); Arbogast v. Mid-Ohio
Valley Med. Corp., 214 W.Va. 356, 589 S.E.2d 498 (2003).
136 Vergara v. Doan, 593 N.E.2d 185 (Ind. 1992); Brune v. Belinkoff,
354 Mass. 102, 235 N.E.2d 793 (1968); Pederson v. Dumouchel, 72
Wash.2d 73, 431 P.2d 973, 31 A.L.R.3d 1100 (1967).
137 See Heinrich v. Sweet, 308 F.3d 48 (1st Cir. 2002); Smethers v.
Campion, 210 Ariz. 167, 171, 108 P.3d 946, 950 (2005); Jordan v. Bogner,
844 P.2d 664 (Colo. 1993); Perin v. Hayne, 210 N.W.2d 609 (Iowa 1973);
Rule v. Cheeseman, 181 Kan. 957, 317 P.2d 472 (1957).
138 See § 21.8.
139 See, e.g., Love v. Walker, 423 S.W.3d 751 (Ky. 2014).
140 See, e.g., McGathey v. Brookwood Health Services, Inc., 2013 WL
3958299 (Ala. 2013) (obvious negligence). On res ipsa loquitur in
malpractice cases, see 2 Dobbs, Hayden & Bublick, The Law of Torts §§
305–306 (2d ed. 2011 & Supp.).
141 See, e.g., Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d
118 (2011).
142 Walski v. Tiesenga, 72 Ill.2d 249, 21 Ill.Dec. 201, 381 N.E.2d 279
(1978). See also Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d
118 (2011) (testimony of the plaintiff’s expert that it was his personal
practice to try to work with a patient “to find another way for the patient
to get [an expensive] drug” was not about the general standard of care;
thus the trial judge was incorrect in granting new trial after a jury verdict
for the defendants).
143 See Clark v. District of Columbia, 708 A.2d 632 (D.C. 1997).
144 Travers v. District of Columbia, 672 A.2d 566, 569 (D.C.App. 1996)
(“It is the consensus of opinion of all the surgeons with which I have
worked with and taught with that we do use aspirin when it reaches about
two times normal,” did not establish standard).
145 See Smethers v. Campion, 210 Ariz. 167, 108 P.3d 946 (2005).
146 Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681
S.E.2d 152 (2009) (“[E]vidence regarding an expert witness’ personal
practices, unless subject to exclusion on other evidentiary grounds, is
admissible both as substantive evidence and to impeach the expert’s
opinion regarding the applicable standard of care.”).
147 E.g., Douglas v. Freeman, 117 Wash. 2d 242, 814 P.2d 1160 (1991).
148 Compare Handa v. Munn, 642 S.E.2d 540 (N.C. App. 2007) (expert
testified he knew the Raleigh standard of care, testimony acceptable) with
Fitts v. Arms, 133 S.W.3d 187 (Tenn.Ct.App. 2003) (“Dr. Megison never
states in his affidavit that he is familiar with the recognized standard of
professional practice applicable … in the locality and at the time in
question. This familiarity must be affirmatively established; we may not
impute such knowledge to the affiant”; testimony unacceptable).
149 See, e.g., Holmes v. Elliott, 443 So.2d 825 (Miss. 1983). Mississippi
has since gone to a national standard.
150 Travers v. District of Columbia, 672 A.2d 566 (D.C. 1996).
151 See Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002) (reflecing
Tennessee’s statute precluding experts not from Tennessee or a contiguous
state and holding that it applied in federal court as a substantive rule
under Erie); Endorf v. Bohlender, 26 Kan. App. 2d 855, 995 P.2d 896
(2000) (percentage of time practicing in state).
152 See Dolan v. Galluzzo, 77 Ill. 2d 279, 396 N.E.2d 13, 32 Ill. Dec.
900 (1979) (stating that to testify about podiatry standards, the witness
would have to be a licensed podiatrist); but see Witherell v. Weimer, 515
N.E.2d 68, 113 Ill. Dec. 259, 118 Ill.2d 321 (Ill. 1987) (rejecting the
requirement of a licensing and giving weight to the witness’s added
training and work experience in pharmacology). Statutes may provide
something similar. See Wexler v. Hecht, 928 A.2d 973 (Pa. 2007)
(podiatrist, not having an unrestricted license to practice medicine, could
not testify against one who does). Note that the statutory unrestricted
license requirement standing alone would not prevent the medical doctor
from testifying against a podiatrist, however.
153 See, e.g., Smith v. Fisher, 143 So.3d 110 (Ala. 2013) (interpreting
statute: where defendant is a board-certified specialist, only another
board-certified specialist in the same field is competent to testify on the
standard of care); Woodard v. Custer, 476 Mich. 545, 719 N.W.2d 842
(2006), (similar); Nicholas v. Mynster, 213 N.J. 463, 64 A.3d 536 (2013)
(statute not satisfied where defendant is board-certified but expert is only
credentialed by hospital).
154 Pollard v. Goldsmith, 117 Ariz. 363, 572 P.2d 1201 (1977);
Marshall v. Yale Podiatry Group, 5 Conn.App. 5, 496 A.2d 529 (1985);
Bennett v. Butlin, 236 Ga. App. 691, 512 S.E.2d 13 (1999) (orthopedist
would be permitted to testify against podiatrist where methods of
treatment are the same as to particular procedure involved).
155 Rosenberg v. Cahill, 99 N.J. 318, 334, 492 A.2d 371, 379 (1985).
156 See Bodiford v. Lubitz, 564 So.2d 1390 (Ala. 1990) (“orthopedic
surgeon who is familiar with the standard of care for podiatrists may be
considered an expert in the area of podiatry”); Melville v. Southward, 791
P.2d 383 (Colo. 1990); Troupe v. McAuley, 955 So.2d 848, 856 (Miss. 2007)
(no “per se rule” requiring witness to be in same specialty as defendant,
but witness must be familiar with the applicable standards); Creasey v.
Hogan, 292 Or. 154, 637 P.2d 114 (1981) (as to different community;
possibly a tighter standard as to different specialty); Miller v. Brass Rail
Tavern, Inc., 541 Pa. 474, 480 (the “test to be applied when qualifying an
expert witness is whether the witness has any reasonable pretension to
specialized knowledge on the subject under investigation. If he does, he
may testify and the weight to be given to such testimony is for the trier of
fact to determine.”).
157 E.g., Salter v. Deaconess Family Medicine Center, 267 A.D.2d 976,
701 N.Y.S.2d 586 (1999); Gaines v. Comanche Cnty. Med. Hosp., 143 P.3d
203 (Okla. 2006) (citing many cases).
158 Mattox v. Life Care Centers of America, Inc., 337 P.3d 627 (Idaho
2014).
159 Tapp v. Owensboro Medical Health System, Inc., 282 S.W.3d 336
(Ky. App. 2009); Nold ex rel. Nold v. Binyon, 272 Kan. 87, 31 P.3d 274
(2001); contra, Smith v. Pavlovich, 394 Ill.App.3d 458, 914 N.E.2d 1258
(2009) (pediatrician could not testify to standard of care for Advanced
Practice Nurse). See also Hankla v. Postell, 293 Ga. 692, 749 S.E.2d 726
(2013) (statute requires that expert and defendant be in the “same
profession,” which requires that the witness have actual knowledge and
experience in the area; physician was not qualified to testify against a
nurse midwife because they were not in the same profession and the
physician had never supervised a nurse midwife).
160 Seisinger v. Siebel, 220 Ariz. 85, 203 P.3d 483 (Ariz. 2009);
Dombrowski v. Moore, 299 A.D.2d 949, 752 N.Y.S.2d 183 (2002); see also
Smith v. Pavlovich, 394 Ill.App.3d 458, 914 N.E.2d 1258 (2009) (nurse
working in pediatrics is not “competent to testify to the standard of care
applicable to a pediatrician”).
161 See, e.g., Vaughn v. Mississippi Baptist Medical Center, 20 So.3d
645 (Miss. 2009) (recognizing a general rule against nurse testimony on
causation). Cf. Williams v. Eight Judicial Dist. Court of State, ex rel.
County of Clark, 262 P.3d 360 (Nev. 2011) (nurse not competent to give
causation testimony in products liability case against drug manufacturer).
162 E.g., Milliun v. New Milfort Hospital, 310 Conn. 711, 80 A.3d 887
(2013); Beckles v. Madden, 160 N.H. 118, 993 A.2d 209, 214 (2010). Expert
testimony is not required where the connection between the defendant’s
negligent conduct and the plaintiff’s injury or death is understandable by
lay persons. Williams v. Lucy Webb Hayes Nat’l Training Sch. for
Deaconesses and Missionaries, 924 A.2d 1000 (D.C. 2007); Williamson v.
Amrani, 283 Kan. 227, 152 P.3d 60 (2007).
163 Randall v. Benton, 147 N.H. 786, 802 A.2d 1211 (2002) (evidence
insufficient to show that, had psychiatrist complied with standard of care,
decedent’s suicide would have been prevented).
164 Rodriguez v. Clark, 400 Md. 39, 926 A.2d 736 (2007).
165 Snelson v. Kamm, 204 Ill.2d 1, 787 N.E.2d 796, 272 Ill. Dec. 610
(2003); Smith v. Knowles, 281 N.W.2d 653 (Minn. 1979).
166 E.g., Chakalis v. Elevator Solutions, Inc., 205 Cal. App. 4th 1557,
141 Cal. Rptr. 3d 362 (2012) (expert testimony failed to address whether
the conduct caused plaintiff’s injuries “within a reasonable medical
probability”); Price v. Divita, 224 S.W.3d 331 (Tex. App. 2006).
167 Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645 (Miss.
2009); Colwell v. Holy Family Hosp., 104 Wash.App. 606, 15 P.3d 210
(2001).
2011 & Supp.) (excluding expert testimony in products liability cases).
169 See, Domingo v. T.K., 289 F.3d 600 (9th Cir. 2002) (excluding
medical testimony on causation, in part because, under the Ninth Circuit’s
stringent test, the expert must have done independent research on the
issue or else base his opinion on objective evidence such as research done
by others).
170 See Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th Cir. 2002)
(emphasizing that revised Rule 702 expressly permits experience as a
foundation for expert opinion and pointing out that the trial judge should
address that experience in determining whether to admit the testimony);
Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525 (Pa. 1995).
171 Hayes v. Decker, 263 Conn. 677, 822 A.2d 228 (2003).
172 See, applying such a statute, Perdieu v. Blackstone Family
Practice Center, Inc., 264 Va. 408, 568 S.E.2d 703 (2002).
173 A mother may consent for a child and if that consent is not
informed, the child will have her own informed consent action. Niemiera v.
Schneider, 114 N.J. 550, 555 A.2d 1112 (1989); Miller ex rel. Miller v.
Dacus, 231 S.W.3d 903 (Tenn. 2007); see § 27.1.
174 Fox v. Smith, 594 So.2d 596, 604 (Miss. 1992).
175 Backlund v. Univ. of Washington, 137 Wash.2d 651, 975 P.2d 950
(1999) (the informed consent claim “allows a patient to recover damages
from a physician even though the medical diagnosis or treatment was not
negligent”). On details of causal rules, see § 21.12.
176 Referring physicians who do not treat or retain control, are
generally not expected to provide the information and secure the consent.
See Koapke v. Kerfendal, 660 N.W.2d 206 (N.D. 2003).
177 Long v. Jaszczak, 688 N.W.2d 173 (N.D. 2004) (physician ordering
medical test).
178 E.g., Quintanilla v. Dunkelman, 133 Cal. App. 4th 95, 34 Cal.
Rptr. 3d 557 (2005).
179 See Degennaro v. Tandon, 89 Conn.App. 183, 873 A.2d 191 (2005);
Koapke v. Kerfendal, 660 N.W.2d 206 (N.D. 2003).
180 Hannemann v. Boyson, 282 Wis.2d 664, 698 N.W.2d 714 (2005);
Felton v. Lovett, 388 S.W.3d 656 (Tex. 2012).
181 See Ackerman v. Lerwick, 676 S.W.2d 318 (Mo. App. 1984);
Montalvo v. Borkovec, 256 Wis.2d 472, 647 N.W.2d 413 (Ct. App. 2002).
182 See Bryant v. HCA Health Servs. of No. Tennessee, Inc., 15
S.W.3d 804 (Tenn. 2000).
183 See Friter v. Iolab Corp., 414 Pa. Super. 622, 607 A.2d 1111
(1992). State statutes may also indirectly impose a duty, at least if the
hospital takes part in the consent process. See Rogers v. T. J. Samson
Community Hosp., 276 F.3d 228 (6th Cir. 2002).
184 Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 798 A.2d 742 (2002) (no
consent and lack of informed consent are both treated as battery claims).
185 Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E.
92 (1914), overruled in part by Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3,
163 N.Y.2d 3 (1957).
186 As in Bowling v. Foster, 254 Ga. App. 374, 562 S.E.2d 776 (Ga.
App. 2002).
187 See Miller v. Rhode Island Hosp., 625 A.2d 778, 784 (R.I. 1993)
(“[C]entral to the doctrine of informed consent is every competent adult’s
right to forgo treatment.”). Thus the patient can refuse treatment by
medication as well as surgery. E.g., Duncan v. Scottsdale Med. Imaging,
Ltd., 205 Ariz. 306, 70 P.3d 435 (2003).
188 See In re A.C., 573 A.2d 1235 (D.C.1990); In re Dubreuil, 629
So.2d 819 (Fla. 1993); Harvey v. Strickland, 350 S.C. 303, 566 S.E.2d 529
(2002).
189 See §§ 8.6 & 8.12 (consent for those lacking capacity and
emergency as a substitute for consent). In Harvey v. Strickland, 350 S.C.
303, 566 S.E.2d 529 (2002) the patient categorically refused a blood
transfusion and the doctor knew he was Jehovah’s Witness, but the
patient allegedly also said he would “consider” a transfusion. While the
patient was unconscious and allegedly in need of a transfusion, the
defendant surgeon obtained “consent” from the patient’s mother. The court
held it was a jury question whether the patient had impliedly consented to
a substituted consent.
190 E.g., Gragg v. Calandra, 297 Ill. App. 3d 639, 696 N.E.2d 1282,
231 Ill. Dec. 711 (1998); see § 33. The battery claim—based on the
evidence that the plaintiff did not consent to the operation at all—does not
require expert testimony to establish the fact of no consent, even though in
many courts expert testimony is required to establish the entirely different
claim that the patient was given inadequate information. Gouveia v.
Phillips, 823 So.2d 215 (Fla. Dist. Ct. App. 2002).
191 See Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 70
P.3d 435 (2003) (plaintiff can either claim misrepresentation as a tort or
proceed on the battery claim, because misrepresentation vitiates consent);
Bloskas v. Murray, 646 P.2d 907, 913 (Colo. 1982).
192 § 8.9.
193 Vitale v. Henchey, 24 S.W.3d 651 (Ky. 2000); Perna v. Pirozzi, 92
N.J. 446, 457 A.2d 431 (1983). Damages in such cases, however, may be
severely limited unless the plaintiff can show “that the results of the
surgery would have been different had it been performed by” the surgeon
to whom consent was given. Meyers v. Epstein, 282 F.Supp. 2d 151 (S.D.
N.Y. 2003).
194 E.g., Cobbs v. Grant, 8 Cal.3d 229, 502 P.2d 1, 104 Cal.Rptr. 505
(1972); Kennis v. Mercy Hosp. Medical Center, 491 N.W.2d 161 (Iowa
1992); Howard v. Univ. of Med. & Dentistry of New Jersey, 172 N.J. 537,
800 A.2d 73 (2002); Jaskoviak v. Gruver, 638 N.W.2d 1 (N.D. 2002);
Blanchard v. Kellum, 975 S.W.2d 522 (Tenn. 1998).
195 Hayes v. Camel, 283 Conn. 475, 927 A.2d 880 (2007) (“a claim for
lack of informed consent focuses not on the level of skill exercised in the
performance of the procedure itself but on the adequacy of the explanation
given by the physician in obtaining the patient’s consent”); see also
Spencer v. Goodill, 17 A.3d 552 (Del. 2011) (construing state statute;
plaintiff must “prove that defendant’s failure to obtain informed consent
was a proximate cause of plaintiff’s injury”).
196 Shuler v. Garrett, 743 F.3d 170 (6th Cir. 2014) (Tenn. Law);
Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 70 P.3d 435
(2003); Washburn v. Klara, 263 Va. 586, 561 S.E.2d 682 (Va. 2002);
Christman v. Davis, 889 A.2d 746 (Vt. 2005); see also O’Brien v. Synnott,
72 A.3d 331 (Vt. 2013) (defendants may be liable for battery where patient
consented to a blood draw without knowing that it was for a non-medical,
law enforcement purpose).
197 See Betterton v. Leichtling, 101 Cal. App. 4th 749, 124 Cal. Rptr.
2d 644 (2002)
198 §§ 21.10 & 21.11.
199 Tashman v. Gibbs, 263 Va. 65, 556 S.E.2d 772 (2002); § 21.12.
200 See Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995)
(but treating third element as a “factor” to consider); Woolley v.
Henderson, 418 A.2d 1123 (Me. 1980); Ashe v. Radiation Oncology Assocs.,
9 S.W.3d 119 (1999); § 21.12.
201 Some state statutes set forth lists of exactly what must be
disclosed in certain situations.
202 E.g., N.Y. CPLR 4401–a & N.Y. Pub. Health L. § 2805–d; N.C.
Gen. Stat. § 90–21.13.
203 E.g., Davis v. Caldwell, 54 N.Y.2d 176, 429 N.E.2d 741, 445
N.Y.S.2d 63 (1981); Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119
(1999). See 1 Barry R. Furrow, Thomas L. Greaney, Sandra H. Johnson,
Timothy Stolzfus Jost & Robert L. Schwartz, Health Law § 6–10 (2d ed.
2000) (listing cases and statutes). As to cases, see Laurent B. Frantz,
Annotation, Modern Status of Views as to General Measure of Physician’s
Duty to Inform Patient of Risks of Proposed Treatment, 88 A.L.R.3d 1008
(1978).
204 See Daniels v. Gamma West Brachytherapy, LLC, 221 P.3d 256
(Utah 2009) (reflecting statutory displacement of common law fiduciary
duty claim requiring disclosure of material information).
205 See § 21.5
206 Woolley v. Henderson, 418 A.2d 1123 (Me. 1980); Hamilton v.
Bares, 267 Neb. 816, 678 N.W.2d 74 (2004) (under statute codifying
medical standard, physician must provide “information which would
ordinarily be provided to the patient under like circumstances by health
care providers” in the relevant community).
207 E.g., Woolley v. Henderson, 418 A.2d 1123 (Me. 1980); Tashman v.
Gibbs, 263 Va. 65, 556 S.E.2d 772 (2002). The testimony may, of course,
come from defense witnesses, as in Davis v. Caldwell, 54 N.Y.2d 176, 429
N.E.2d 741, 445 N.Y.S.2d 63 (1981).
208 In Griffin v. Moseley, 356 Mont. 393, 234 P.3d 869 (2010), the
defendant was a neurosurgeon, the witness a neuro-opthalmologist. The
court thought the witness could not be permitted to testimony on alleged
negligence in the surgery, but could testify as to standards for providing
the patient information about alternatives to surgery.
209 Gorab v. Zook, 943 P.2d 423 (Colo. 1997) (once the plaintiff proves
nondisclosure, “the burden then shifts to the physician to go forward with
expert testimony showing that the nondisclosure conformed” with medical
standards).
210 See Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (doubting
the “reality of any discernible custom” as to communication and
recognizing “danger that what is in fact no custom at all may be taken as
an affirmative custom to maintain silence”); Cobbs v. Grant, 8 Cal.3d 229,
502 P.2d 1, 104 Cal.Rptr. 505 (1972) (standards of disclosure so nebulous
that doctors would be vested with “virtual absolute discretion”).
211 Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Cobbs v.
Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505, (1972); Wilkinson v.
Vesey, 110 R.I. 606, 295 A.2d 676, 69 A.L.R.3d 1202 (1972).
212 See, e.g., Janusauskas v. Fichman, 264 Conn. 796, 826 A.2d 1066
(2003); Carr v. Strode, 79 Hawai’i 475, 904 P.2d 489 (1995); Spar v. Cha,
907 N.E.2d 974, 979 (Ind. 2009); Harnish v. Children’s Hosp. Medical
Center, 387 Mass. 152, 439 N.E.2d 240 (1982); Largey v. Rothman, 110
N.J. 204, 540 A.2d 504 (1988); Moure v. Raeuchle, 529 Pa. 394, 604 A.2d
1003 (1992). Some statutes adopt the materiality standard. As to the
information to be disclosed, see § 21.11.
213 Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).
214 Cobbs v. Grant, 8 Cal.3d 229, 502 P.2d 1, 104 Cal.Rptr. 505 (1972).
215 Harrison v. United States, 284 F.3d 293 (1st Cir. 2002).
216 See Acuna v. Turkish, 192 N.J. 399, 930 A.2d 416 (2007). The
physician is also required to disclose information he should recognize the
particular patient would want to know. See § 21.11.
217 Betterton v. Leichtling, 101 Cal. App. 4th 749, 124 Cal. Rptr. 2d
644 (2002) (“Whether to disclose a significant risk is not a matter reserved
for expert opinion. Whether a particular risk exists, however, may be a
matter beyond the knowledge of lay witnesses, and therefore appropriate
for determination based on the testimony of experts”); Harnish v.
Children’s Hosp. Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982);
Jaskoviak v. Gruver, 638 N.W.2d 1 (N.D. 2002).
218 Flatt v. Kantak, 687 N.W.2d 208 (N.D. 2004).
219 See Barcai v. Betwee, 98 Hawai’i 470, 50 P.3d 946 (2002)
(emphasizing that a general rule of nondisclosure for a category of patients
would not suffice to show the privilege, which must be based on
particularized assessment of the individual patient lest the privilege
swallow the duty to provide information). See also Felton v. Lovett, 388
S.W.3d 656 (Tex. 2012) (“In sum, a reasonable health care provider must
disclose the risks that would influence a reasonable patient in deciding
whether to undergo treatment but not those that would be unduly
disturbing to an unreasonable patient.”).
220 Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).
221 Fitzpatrick v. Natter, 599 Pa. 465, 961 A.2d 1229 (2008)
(“determination of what risks would be material to the patient’s decision is
a jury question; however, in making that determination, the jury must be
supplied with expert information not only as to the potential harm, but the
likelihood of that harm occurring”); Bubb v. Brusky, 321 Wis.2d 1, 768
N.W.2d 903 (2009).
222 See Wyszomierski v. Siracusa, 290 Conn. 225, 963 A.2d 943
(2009).
223 Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977). See also
University of Maryland Medical System Corp. v. Waldt, 411 Md. 207, 983
A.2d 112 (2009) (“Expert testimony is necessary to establish the material
risks and other pertinent information regarding the treatment or
procedure.”); Fitzpatrick v. Natter, 599 Pa. 465, 961 A.2d 1229 (2008). An
expert may also be required to testify that it was more likely than not that
the undisclosed risk actually materialized and was a factual cause of the
injury. White v. Leimbach, 131 Ohio St. 3d 21, 959 N.E.2d 1033 (2011).
224 See Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446, 468 (1982)
(“the disclosure issue is approached from the reasonableness of the
physician’s disclosure or nondisclosure in terms of what the physician
knows or should know to be the patient’s informational needs”);
Restatement Second of Torts § 538(2)(b) (1977) (knows or has reason to
know that the recipient regards the material as important).
225 Moure v. Raeuchle, 529 Pa. 394, 405, 604 A.2d 1003, 1008 (1992).
Variations in wording appear to be aimed at the same idea. See
Hondroulis v. Schuhmacher, 553 So.2d 398 (La. 1988) (material
information would influence the decision); Restatement Second of Torts §
538(2)(a) (1977) (material information would be important in making a
choice).
226 Masquat v. Maguire, 638 P.2d 1105 (Okla. 1981) (different
methods of performing a tubal ligation, no disclosure required).
227 See Cobbs v. Grant, 8 Cal.3d 229, 502 P.2d 1, 104 Cal.Rptr. 505
(1972).
228 See, e.g., Sard v. Hardy, 281 Md. 432, 445, 379 A.2d 1014, 1022
(1977).
229 E.g., Vasa v. Compass Medical, P.C., 456 Mass. 175, 921 N.E.2d
963 (2010) (“Doctors have a duty to inform patients of available options for
medical treatment and the material risks that each option entails);
Matthies v. Mastromonaco, 160 N.J. 26, 733 A.2d 456 (1999); Hopfauf v.
Hieb, 712 N.W.2d 333 (N.D. 2006) (risk and options); Tisdale v. Pruitt, 302
S.C. 238, 394 S.E.2d 857 (1990); Felton v. Lovett, 388 S.W.3d 656 (Tex.
2012) (doctor must disclose the inherent risks of treatment,” meaning
those risks “which are directly related to the treatment and occur without
negligence,” including “side effects and reactions, whether likely or only
possible, that are directly related to the treatment provided”).
230 See Nold ex rel. Nold v. Binyon, 272 Kan. 87, 31 P.3d 274 (2001)
(“Where a communicable disease has been diagnosed in a pregnant woman
who desires to continue her pregnancy to term and deliver a healthy baby,
we agree with the district court that the woman’s physician has an
obligation as a matter of law to inform the woman of the diagnosis.”).
Under the materiality test, a doctor may also owe a duty to inform the
patient of the availability of a test that a reasonable patient would want to
know about. Jandre v. Wisconsin Injured Patients and Families
Compensation Fund, 340 Wis. 2d 31, 813 N.W.2d 627 (2012).
231 Feeley v. Baer, 424 Mass. 875, 876, 679 N.E.2d 180, 181 (1997)
(“materiality of information about a potential injury is a function not only
of the severity of the injury, but also of the likelihood that it will occur”).
232 Wilkinson v. Vesey, 110 R.I. 606, 295A.2d 676, 689, 69 A.L.R.3d
1202 (1972).
233 Moure v. Raeuchle, 529 Pa. 394, 405, 604 A.2d 1003 (1992).
234 Feeley v. Baer, 424 Mass. 875, 679 N.E.2d 180 (1997).
235 Arato v. Avedon, 5 Cal.4th 1172, 23 Cal.Rptr.2d 131, 858 P.2d 598
(1993).
236 Arato, 5 Cal.4th at 1189, 23 Cal.Rptr.2d at 142, 858 P.2d at 609.
237 See Acuna v. Turkish, 192 N.J. 399, 930 A.2d 416 (2007).
238 See McQuitty v. Spangler, 410 Md. 1, 976 A.2d 1020 (Md. 2009)
(“[R]equiring a physical invasion to sustain an informed consent claim
contravenes the very foundation of the informed consent doctrine—to
promote a patient’s choice.”).
239 § 27.4 (interference with mother’s choice to avoid or terminate
pregnancy).
240 Truman v. Thomas, 27 Cal.3d 285, 165 Cal.Rptr. 308, 611 P.2d
902 (1980); cf. Marsingill v. O’Malley, 58 P.3d 495 (Alaska 2002) (upon
hearing patient’s symptoms by telephone, physician merely informed
patient to go to the emergency room without indicating seriousness of
failure to do so; jury should be instructed on the materiality or reasonable
patient standard).
241 Matthies v. Mastromonaco, 160 N.J. 26, 733 A.2d 456 (1999).
242 See Iowa Code Ann. § 147.137; Tex. Civ. Prac. & Rems. Code §§
74.105 to 74.106.
243 See Spencer v. Goodill, 17 A.3d 552 (Del. 2011) (construing state
statute to mean that plaintiff must “prove that defendant’s failure to
obtain informed consent was a proximate cause of plaintiff’s injury”);
Anderson v. Hollingsworth, 136 Idaho 800, 41 P.3d 228 (2001) (“To
establish a claim based on the doctrine of informed consent, a patient must
prove three basic elements: nondisclosure, causation and injury.”); Curran
v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006) (proof required that lack of
informed consent proximately caused injury and damages); Scott v.
Bradford, 606 P.2d 554 (Okla. 1980) (elements of claim include duty, cause
and injury).
244 See White v. Leimbach, 131 Ohio St. 3d 21, 2011-Ohio-6238, 959
N.E.2d 1033 (2011).
245 Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975)
(“Furthermore, no damage can be said to have proximately resulted from a
failure to disclose unless Mrs. Riedisser would not have had the operation
had the disclosures been made.”); Scott v. Bradford, 606 P.2d 554 (Okla.
1980) (“The second element, that of causation, requires that plaintiff
patient would have chosen no treatment or a different course of treatment
had the alternatives and material risks of each been made known to
him.”). A statute may prescribe this rule. See Alaska Stat. § 09.55.556
(patient must prove failure to inform properly and that “but for that
failure the claimant would not have consented to the proposed treatment
or procedure”).
246 Spencer v. Goodill, 17 A.3d 552 (Del. 2011); Sard v. Hardy, 281
Md. 432, 379 A.2d 1014 (1977). However, the “reasonable person” for some
judges may turn out to have some of the plaintiff’s characteristics. If so,
this objective standard becomes at least somewhat subjective. See Bernard
v. Char, 79 Hawai’i 362, 903 P.2d 667 (1995); Ashe v. Radiation Oncology
Assocs., 9 S.W.3d 119 (Tenn. 1999).
247 See Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (the
subjective or but-for rule “places the physician in jeopardy of the patient’s
hindsight and bitterness”).
248 See § 13.1.
249 See Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998); § 191.
250 See § 33.16.
251 Arena v. Gingrich, 305 Or. 1, 748 P.2d 547 (1988).
252 Scott v. Bradford, 606 P.2d 554 (Okla. 1979).
253 Harnish v. Children’s Hosp. Medical Center, 387 Mass. 152, 439
N.E.2d 240 (1982).
254 See Tashman v. Gibbs, 263 Va. 65, 556 S.E.2d 772 (2002) (“Here,
[the plaintiff] did not state that she would have decided against having the
… procedure if Dr. Tashman had informed her of the … alternative,” hence
the plaintiff failed to prove factual cause).
255 A number of courts have appealed to Canterbury v. Spence, 464
F.2d 772 (D.C. Cir. 1972), in support of the rule that the plaintiff will be
barred if a reasonable person would have consented in spite of receiving
full information. But Canterbury, like some other cases, recognized that
the ultimate issue was but-for causation and insisted that “[a] causal
connection exists when, but only when, disclosure of significant risks
incidental to treatment would have resulted in a decision against it.”
256 See § 21.15.
257 Keomaka v. Zakaib, 8 Haw.App. 518, 811 P.2d 478 (1991)
(“contributory negligence ‘has no place in an action for failure to obtain
informed consent;’ ” given the superior knowledge of the doctor “and the
generally limited ability of the patient to ascertain the existence of certain
risks and dangers that inhere in certain medical treatments, it would be
unfair and illogical to impose on the patient the duty of inquiry or other
affirmative duty with respect to informed consent”).
258 Bey v. Sacks, 789 A.2d 232 (Pa. Super. 2001).
259 Keomaka v. Zakaib, 8 Haw.App. 518, 811 P.2d 478 (1991).
260 Brown v. Dibbell, 227 Wis.2d 28, 595 N.W.2d 358 (1999) (but
noting that the patient might be chargeable with fault in failing to
accurately give her medical history).
261 David W. Louisell & Harold Williams, Medical Malpractice § 21–
10 (2d ed. 2000). See Stewart R. Reuter, Physicians as Good Samaritans,
20 J. Legal Med. 157 (1999); Danny R. Veilleux, Annotation, Construction
and Application of “Good Samaritan” Statutes, 68 A.L.R.4th 294 (1989).
262 E.g., Cal. Bus. & Prof. Code § 1627.5 (dentists).
263 Perkins v. Howard, 232 Cal. App.3d 708, 283 Cal. Rptr. 764
(1991).
264 E.g., N.C. Gen. Stat. § 20–166(d).
265 E.g., Home Star Bank and Financial Services v. Emergency Care
and Health Organization, Ltd., 2014 IL 115526, 6 N.E.3d 128, 379 Ill. Dec.
51 (2014) (treatment is not “without fee” for purposes of Good Samaritan
Act where the doctor is compensated for his time working, even where
patient is not charged).
266 E.g., Conn. Gen. Stat. Ann. § 52–557b. See Velazquez v. Jiminez,
172 N.J. 240, 798 A.2d 51 (2002) (categorizing statutes, and concluding
that the statute should be construed to apply only in cases where
equipment, assistance and sanitation were not available, making it
inapplicable to doctors working in hospital emergencies).
267 Perkins v. Howard, 232 Cal. App.3d 708, 283 Cal. Rptr. 764
(1991). Statutes in some states expressly provide an immunity for the
provision of medical care in an emergency room. See Johnson v. Omondi,
294 Ga. 74, 751 S.E.2d 288 (2013) (construing Ga. Code Ann. 51–1–29.5(c),
holding that fact issue remained as to whether the defendant’s actions
constituted “gross negligence” and were therefore outside the statute’s
protection).
268 Pemberton v. Dharmani, 207 Mich. App. 522, 525 N.W.2d 497
(1994).
269 Conn. Gen. Stat. Ann. § 52–557b (teachers not liable for
negligence in administering aid on school grounds); TransCare Maryland,
Inc. v. Murray, 431 Md. 225, 64 A.3d 887 (2013) (statute providing
immunity to certain members of government-operated or volunteer fire
departments, ambulance or rescue squads, or law enforcement agencies,
held not to apply to employees of “commercial ambulance services”).
270 See Swenson v. Waseca Mut. Ins. Co., 653 N.W.2d 794 (Minn. App.
2002) (statute protected a stranger-driver who voluntarily picked up a
snowmobiler with a dislocated knee, then made a U-turn into the path of a
speeding truck as she headed for the hospital, causing the death of the
snowmobiler); Certification of a Question of Law from United States
District Court, 779 N.W.2d 158 (S.D. 2010) (statute protecting a number of
specific persons, including members of any “rescue or emergency squad, or
any citizen acting as such as a volunteer, applied to protect a volunteer”
firefighter from liability).
271 Ariz. Rev. Stat. § 32–1472. In these statutes and some others, the
theme of the now-discredited guest statutes seems prominent, namely that
one who is not paid owes no duty of reasonable care.
272 See § 10.7 (emergency rules).
273 See Hirpa v. IHC Hosps., Inc., 948 P.2d 785 (Utah 1997).
274 Ga. Code Ann. § 51–1–29.5(c) (requiring proof of gross negligence
by clear and convincing evidence); see also Ariz. Rev. Stat. § 32–1473
(when negligence is claimed in connection with emergency labor or
delivery).
275 See Paul C. Weiler, Howard H. Hiatt, Joseph P. Newhouse,
William G. Johnson, Troyen A. Brennan, & Lucian L. Leape, A Measure of
Malpractice (1993) (reflecting, in one study, 27,179 negligent medical
injuries with only 3,682 claims). Persons with the best claims often do not
sue. See Localio, Lawthers, Brennan, Laird, Hebert, Peterson, Newhouse,
Weiler & Hiatt, Relation between Malpractice Claims and Adverse Events
Due to Negligence, 325 N. Eng. J. Med. 245 (July 25, 1991).
276 See Kenneth Allen de Ville, Medical Malpractice in Nineteenth-
Century America: Origins and Legacy 3 (1990).
277 See Casey L. Dwyer, An Empirical Examination of the Equal
Protection Challenge to Contingency Fee Restrictions in Medical
Malpractice Reform Statutes, 56 Duke L. J. 611 (2006).
Timothy S. Jost, & Robert L. Schwartz, Health Law § 6–20 (2d ed. 2000).
279 See Id.
280 See Deborah Jones Merritt & Kathryn Ann Barry, Is the Tort
System in Crisis? New Empirical Evidence, 60 Ohio St. L.J. 315 (1999).
Another study examined over 1400 closed claims, and concluded that
medical errors in fact existed in about 60 of them. Most of the claims not
involving medical error found by the investigators were not paid. David M.
Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Gandhi, Allen
Kachalia, Catherine Yoon, Ann Louise Puopolo & Troyen A. Brennan,
Claims, Errors, and Compensation Payments in Medical Malpractice
Litigation, 354 New Eng. J. Med. 2024 (2006).
281 See Casey L. Dwyer, An Empirical Examination of the Equal
Protection Challenge to Contingency Fee Restrictions in Medical
Malpractice Reform Statutes, 56 Duke L. J. 611 (2006) (tabulating
premium increases and amounts in all states).
282 Philip G. Peters, Jr., Doctors & Juries, 105 Mich. L. Rev. 1453
(2007) (reviewing, re-analyzing, and explaining the studies).
283 See Institute of Medicine, To Err is Human: Building a Safer
Healthy System (2000); American Law Institute, Reporter’s Study of
Enterprise Liability (1991) (proposing to eliminate individual doctors’
liability in favor of hospital liability).
284 Idaho Code § 6–1012.
285 E.g., Ark. Code Ann. § 16–114–206 (physician need only disclose
“type of information … as would customarily have been given to a patient
in the position of the injured person … by other medical care providers
with similar training and experience” at the same time and in the same or
similar locality); N.C. Gen. Stat. § 0–21.13.
286 In Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 70 P.3d
435 (2003), the court held that a statute abolishing battery claims against
health care providers was in violation of the state constitution’s protection
of common law actions.
287 Idaho Code § 6–1012 (in malpractice action, claimant must prove
breach of community standard by direct expert testimony); N.H. Rev. Stat.
Ann. § 507–C:2 (“In any action for medical injury, the doctrine of res ipsa
loquitur shall not apply”) (held unconstitutional in Carson v. Maurer, 120
N.H. 925, 424 A.2d 825 (1980), overruled on other grounds, Community
Resources for Justice, Inc. v. City of Manchester, 154 N.H. 748, 917 A.2d
707 (2007)).
288 Nev. Rev. Stat. § 41A.100 (five exceptions which codify the pattern
of cases, but which leave no room for cases the drafters had not
considered); N.D. Cent. Code § 28–01–46.
289 See, e.g., Schroeder v. Weighall, 179 Wash.2d 566 (2014) (statute
that eliminated tolling for minority in medical malpractice actions struck
down as unconstitutional).
290 See § 18.4.
291 For a thorough discussion of the lack of rationality in using
damages caps to address an “alleged medical malpractice insurance crisis,”
see Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014) (striking
down statutory cap on noneconomic damages as violative of equal
protection under state constitution). For a discussion of damages caps
generally, see § 486.
292 See § 34.3 (collateral source rule and abolition under tort reform
statutes).
293 E.g., Kan. Stat. Ann. § 60–4904.
Timothy S. Jost, & Robert L. Schwartz, Health Law § 6–21 (2d ed. 2000).
295 Hillsborough Cnty. Hosp. Authority v. Coffaro, 829 So.2d 862
(2002), illustrates some of the complex effects on statutes of limitations of
these pre-suit notice statutes.
296 See, e.g., Endorf v. Bohlender, 26 Kan. App. 2d 855, 995 P.2d 896
(2000); Perdieu v. Blackstone Family Practice Center, Inc., 264 Va. 408,
568 S.E.2d 703 (2002).
297 See, e.g., Psychiatric Solutions, Inc. v. Palit, 414 S.W.3d 724 (Tex.
2013); R.K. v. St. Mary’s Medical Center, Inc., 229 W. Va. 712, 735 S.E.2d
715 (2012) (patient’s claim for unauthorized disclosure of confidential
medical information not governed by medical malpractice statute’s
limitations).
298 But see Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658 (Tex.
2010) (patient’s negligence claim based on falling from his bed, alleging
that the hospital was negligent in failing to provide a safe environment
and in assembling or maintaining the bed, was a “health care liability”
claim within the meaning of the Texas Medical Liability statute, and thus
properly dismissed for failing to file expert reports).
299 Rome v. Flower Memorial Hosp., 70 Ohio St.3d14, 635 N.E.2d
1239 (1994) (claim was medical and thus had to be brought within one
year); contra, Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 888 So.2d
782 (La. 2004) (considering whether the defendant’s act involved
assessment of the patient’s condition and other matters).
300 Perry v. Shaw, 88 Cal. App. 4th 658, 106 Cal. Rptr. 2d 70 (2001).
301 Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So. 2d
974 (Fla. 2002).
302 E.g., Viox v. Weinberg, 169 Ohio App.3d 79, 861 N.E.2d 909
(2006); Zak v. Zifferblatt, 292 Wis.2d 502, 715 N.W.2d 739 (Ct. App. 2006)
(patient’s delay in returning for care not shown to have caused any harm).
303 Hall v. Carter, 825 A.2d 954 (D.C. 2003) (patient’s contributory
negligence a complete bar and, on the facts, the last clear chance doctrine
did not apply to save her claim); Dehn v. Edgecombe, 384 Md. 606, 865
A.2d 603 (2005).
304 Cavens v. Zaberdac, 849 N.E.2d 526 (Ind. 2006) (comparative
negligence act did not apply to medical malpractice claims).
305 E.g., Shea v. Esensten, 622 N.W.2d 130 (Minn. App. 2001) (no
error to instruct on comparative fault where patient failed to follow
physician’s advice to quit smoking, failed to take all medication, and failed
to go to the emergency room as instructed).
306 E.g., Harlow v. Chin, 405 Mass. 697, 545 N.E.2d 602 (1989) (if
doctor told patient to return if pain intensified, patient could be charged
with comparative fault in not returning for an extended period).
307 Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005) (vasectomy
patient failed to follow post-op instructions for semen testing, contributory
negligence a bar).
308 Hall v. Carter, 825 A.2d 954 (D.C. 2003) (patient who told surgeon
she smoked half a pack of cigarettes a day, but didn’t mention that she had
smoked two packs a day until recently; this was contributory negligence
that barred her claim for malpractice); Elkins v. Ferencz, 694 N.Y.S.2d 27
(App. Div. 1999) (failure to furnish accurate medical history; also patient’s
use of drugs and delay of treatment).
309 See Jackson v. Axelrad, 221 S.W.3d 650 (Tex. 2007) (“Doctors are
paid for their expertise, so diagnosis will always be primarily their
responsibility. Thus, we agree with the court of appeals that in most cases
an ordinary patient’s failure to report the origin of pain will be no evidence
of negligence.”).
310 Brown v. Dibbell, 227 Wis.2d 28, 595 N.W.2d 358 (Wis. 1999).
311 Argus v. Scheppegrell, 472 So.2d 573 (La. 1985) (doctor could not
defend on the ground that an addicted teenager was at fault in taking
prescribed drugs, since taking drugs was the very act the doctor was under
a duty to prevent by refusing a prescription).
312 E.g., Keans v. Bottiarelli, 35 Conn. App. 239, 645 A.2d 1029
(1994); Hopkins v. Silber, 141 Md. App. 319, 785 A.2d 806 (2001) (patient’s
effort to have sexual intercourse soon after penile implants). On the
minimizing damages or avoidable consequences rules and comparative
fault see §§ 16.10 & 16.11.
313 See § 16.10.
314 Cavens v. Zaberdac, 849 N.E.2d 526 (Ind. 2006) (“It is a staple of
tort law that the tortfeasor takes her victim as she finds him.”); Lambert v.
Shearer, 84 Ohio App.3d 266, 616 N.E.2d 965 (1992) (plaintiff fault does
not count against plaintiff unless it is “contemporaneous” with the
physician’s negligence); Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121
(Tenn. 2004); Eiss v. Lillis, 233 Va. 545, 357 S.E.2d 539 (1987);
Restatement Third of Torts, Apportionment § 7, cmt. m (2000); Ellen M.
Bublick, Comparative Fault to the Limits, 56 Vand. L. Rev. 977, 1017
(2003); contra, Shinholster v. Annapolis Hosp., 471 Mich. 540, 685 N.W.2d
275 (2004).
315 See Advincula v. United Blood Services, 176 Ill.2d 1, 678 N.E.2d
1009, 223 Ill.Dec. 1 (1996).
316 Shilkret v. Annapolis Emergency Hospital Ass’n, 276 Md. 187, 349
A.2d 245 (1975); Johnson v. Hillcrest Health Ctr., Inc., 70 P.3d 811 (Okla.
2003); Duling v. Bluefield Sanitarium, Inc., 149 W.Va. 567, 142 S.E.2d 754
(1965); see also Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973
(1967).
317 Wickliffe v. Sunrise Hospital, Inc., 104 Nev. 777, 766 P.2d 1322
(1988).
318 E.g., Health Trust, Inc. v. Cantrell, 689 So.2d 822 (Ala. 1997).
319 Pedroza v. Bryant, 101 Wash. 2d 226, 677 P.2d 166 (1984).
320 § 23.3.
321 See Chapter 22 (governmental immunities).
322 See St. Luke’s Episcopal Hospital v. Agbor, 952 S.W.2d 503 (Tex.
1997).
323 See § 34.7 (tort reform statutes).
324 Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944) (a view
reestablished by statute); see Hamburger v. Cornell University, 240 N.Y.
328, 148 N.E. 539 (N.Y. 1925) (per Cardozo, J., a slightly different
formulation getting the same result).
325 Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 780 N.E.2d 447
(2002) (professional corporation employing physician would be liable as
employer even if it had no right to control details of his treatment of
patient); Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3
(1957) (overruling cases supporting the earlier view). Statutes sometimes
expressly or impliedly permit corporate practice of medicine through
individuals who are licensed. E.g., Ariz. Rev. Stats. §§ 10–3301.
326 See, e.g., Colo. Rev. Stat. Ann. § 13–64–202 (eliminating hospitals’
vicarious liability for physician negligence). Similar provisions are
sometimes enacted for the benefit of health service plans.
327 See Clark v. St. Dominic-Jackson Memorial Hospital, 660 So.2d
970 (Miss. 1995); Pedroza v. Bryant, 101 Wash. 2d 226, 677 P.2d 166
(1984).
328 Renown Health, Inc. v. Vanderford, 126 Nev. 24, 235 P.3d 614
(2010).
329 Statutes may say this explicitly. See Grove v. PeaceHealth St.
Joseph’s Hospital, 341 P.3d 261 (Wash. 2014) (affirming jury verdict for
patient against hospital; statutory definition of “health care provider”
includes any “entity” employing physicians, physicians’ assistants, or
nurses acting in the scope of employment).
330 Cf. Calloway v. City of New Orleans, 524 So.2d 182 (La. App.
1988) (“corpsman” trained like ambulance attendant).
331 Cox v. M.A. Primary and Urgent Care Clinic, 313 S.W.3d 240
(Tenn. 2010).
332 Register v. Wilmington Medical Center, Inc., 377 A.2d 8. (Del.
1977); Moeller v. Hauser, 237 Minn. 368, 54 N.W.2d 639, 57 A.L.R.2d 364
(1952).
333 See Providence Hospital, Inc. v. Willis, 103 A.3d 533 (D.C. 2014);
McMillan v. Durant, 312 S.C. 200, 439 S.E.2d 829 (1993). As to standard of
care for nurses, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 301
(2d ed. 2011 & Supp.).
334 Wilkins v. Marshalltown Medical and Surgical Center, 758
N.W.2d 232 (Iowa 2008); Renown Health, Inc. v. Vanderford, 235 P.3d 614
(Nev. 2010); Clark v. Southview Hosp. & Family Health Center, 68 Ohio
St.3d 435, 628 N.E.2d 46, 58 A.L.R.5th 929 (1994).
335 E.g., Jackson v. Power, 743 P.2d 1376 (Alaska 1987) (now refined
by Alaska Stats. § 09.65.096); Simmons v. Tuomey Regional Medical
Center, 341 S.C. 32, 533 S.E.2d 312 (2000).
336 Sampson v. Contillo, 55 A.D.3d 588, 865 N.Y.S.2d 634(2008).
337 See Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915 (1955).
338 See Biddle v. Sartori Memorial Hospital, 518 N.W.2d 795 (Iowa
1994).
339 Darling v. Charleston Cmty. Mem. Hosp., 33 Ill.2d 326, 211
N.E.2d 253 (1965).
340 See, e.g., Aidan Ming-Ho Leung v. Verdugo Hills Hosp., 55 Cal.
4th 291, 145 Cal. Rptr. 3d 553, 282 P.3d 1250 (2012).
341 Register v. Wilmington Medical Center, Inc., 377 A.2d 8. (Del.
1977); Douglas v. Freeman, 117 Wash.2d 242, 814 P.2d 1160 (1991). See
Edward L. Raymond, Jr., Annotation, Medical Malpractice: Hospital’s
Liability For Injury Allegedly Caused by Failure to Have Properly
Qualified Staff, 62 A.L.R.4th 692 (1989). Understaffing in hospitals may be
actionable if it causes harm to a patient, as it is in nursing home cases.
See Staley v. Northern Utah Healthcare Corp., 230 P.3d 1007 (Utah 2010).
342 Johnson v. Hillcrest Health Ctr., Inc., 70 P.3d 811 (Okla. 2003).
343 Healthtrust, Inc. v. Cantrell, 689 So.2d 822 (Ala. 1997); Doe v.
Guthrie Clinic, Ltd., 22 N.Y.3d 480, 5 N.E.3d 578 (2014).
344 Oehler v. Humana Inc., 105 Nev. 348, 775 P.2d 1271 (1989);
Pedroza v. Bryant, 101 Wash. 2d 226, 677 P.2d 166 (1984). But see Paulino
v. QHG of Springdale, Inc., 2012 Ark. 55, 386 S.W.3d 462 (2012) (rejecting
a cause of action for negligent credentialing and negligent retention,
finding the creation of such a cause of action would be at odds with
Arkansas statutes concerning the peer review of health service employees).
345 See, emphasizing the general historical movement toward
increased hospital liability, Clark C. Havighurst, Making Health Plans
Accountable for the Quality of Care, 31 Ga. L. Rev. 587 (1997).
346 See 2 American Law Institute, Reporter’s Study of Enterprise
Liability for Personal Injury 515 (1991); Paul Weiler, Medical Malpractice
on Trial 132–158 (1991).
347 § 21.17.
348 § 25.1.
349 See Lyons v. Grether, 218 Va. 630, 239 S.E.2d 103 (1977).
350 See Harper v. Baptist Medical Center-Princeton, 341 So.2d 133
(Ala. 1976).
351 See Walling v. Allstate Ins. Co., 183 Mich. App. 731, 455 N.W.2d
736 (1990).
352 42 U.S.C.A. § 1395dd.
353 Morales v. Sociedad Espanola de Auxilio Mutuo y Beneficencia,
524 F.3d 54 (1st Cir. 2008); Cleland v. Bronson Health Care Group, Inc.,
917 F.2d 266, 269 (6th Cir. 1990).
354 42 U.S.C.A. § 1395dd(c)(2).
355 Moses v. Providence Hosp. and Medical Centers, Inc., 561 F.3d 573
(6th Cir. 2009); Cygan v. Kaleida Health, 51 A.D.3d 1373, 857 N.Y.S.2d
869 (2008). Physicians are, however, subject to civil money penalties for
negligently violating the statute. 42 U.S.C.A. § 1395dd (c)(1)
356 42 U.S.C.A. § 1395dd(a).
357 42 U.S.C.A. § 1395dd(e)(1)(B).
358 42 U.S.C.A. § 1395dd(b).
359 42 U.S.C.A. § 1395dd(e)(3)(A).
360 Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 119 S.Ct. 685
(1999).
361 See Bryan v. Rectors and Visitors of the University of Virginia, 95
F.3d 349 (4th Cir. 1996).
362 42 U.S.C.A. § 1399dd(d)(2)(A).
363 Barris v. County of Los Angeles, 20 Cal. 4th 101, 972 P.2d 966, 83
Cal. Rptr. 2d 145 (1999); Godwin v. Memorial Medical Center, 130 N.M.
434, 25 P.3d 273 (2001) (but holding that pre-suit notice provision of state
law was preempted).
364 See Summers v. Baptist Medical Center Arkadelphia, 91 F.3d
1132 (8th Cir. 1996); Cleland v. Bronson Health Care Group, Inc., 917 F.2d
266 (6th Cir. 1990); Power v. Arlington Hospital Ass’n, 42 F.3d 851 (4th
Cir. 1994).
365 See, e.g., Cruz-Vazquez v. Mennonite General Hospital, Inc., 717
F.3d 63 (1st Cir. 2013) (hospital’s own internal screening procedures set
the parameters for an appropriate screening that will satisfy EMTALA).
366 Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. 1995)
(delay so egregious that it amounted to a denial of screening).
367 215 Ill. Comp. Stats, 165/26; Vernon’s Ann. Mo. Stats. § 354.125. A
statute in this form does not appear to address the question of liability for
cost-savings decisions.
368 § 21.16.
369 Chase v. Independent Practice Ass’n, Inc., 31 Mass.App.Ct. 661,
583 N.E.2d 251 (1991). As to independent contractors and ostensible
agency rules, see Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill.2d
17, 241 Ill.Dec. 627, 719 N.E.2d 756 (1999).
370 On the distinctions, see § 31.7.
371 § 21.16 (ostensible agency in emergency department situations); §
31.7 (apparent authority or ostensible agency generally).
372 Boyd v. Albert Einstein Medical Center, 377 Pa. Super. 609, 547
A.2d 1229 (1988).
373 See Schleier v. Kaiser Found. Health Plan of the Mid-Atlantic
States, Inc., 876 F.2d 174 (D.C.Cir. 1989).
374 E.g., Raglin v. HMO Illinois, Inc., 230 Ill.App.3d 642, 595 N.E.2d
153, 172 Ill.Dec. 90 (1992), overruled as to apparent authority, Petrovich v.
Share Health Plan of Illinois, Inc., 188 Ill.2d 17, 241 Ill.Dec. 627, 719
N.E.2d 756 (1999).
375 Schleier v. Kaiser Foundation Health Plan of the Mid-Atlantic
States, Inc., 876 F.2d 174 (D.C. Cir. 1989) (staff model HMO hiring
independent consultant); Villazon v. Prudential Health Care Plan, Inc.,
843 So.2d 842 (Fla. 2003) (emphasizing right to control the “contractor”
and the totality of circumstances).
376 McClellan v. Health Maintenance Org. of Pa., 413 Pa. Super. 128,
604 A.2d 1053 (1992).
377 See Mintz v. Blue Cross of California, 172 Cal.App.4th 1594, 92
Cal.Rptr.3d 422, 435 (2009) (“administrator of a health care plan owes a
duty to plan members to exercise due care to protect them from physical
injury caused by its negligence in making benefit determinations under
the plan”); McEvoy v. Group Health Cooperative of Eau Claire, 213 Wis.2d
507, 570 N.W.2d 397 (1997) (HMO that refused, for cost-containment
reasons, to approve continued “out of network” treatment needed by a
patient and to which patient was entitled would be liable for bad faith
breach of contract); Kathleen J. McKee, Annotation, Liability of Third-
Party Health-Care Payor for Injury Arising from Failure to Authorize
Required Treatment, 56 A.L.R.5th 737 (1998).
378 See Neade v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496, 250 Ill. Dec.
733 (2000).
296, 47 P.3d 1209 (2002) (rejecting HMO liability on the ground that
health care decisions should be made by “stakeholders” such as physicians
and professionals, not by courts).
380 See Susan M. Wolf, Toward a Systemic Theory of Informed
Consent in Managed Care, 35 Hous. L. Rev. 1631 (1999) (advocating
“systemic analysis” and pointing to the need for information from MCOs
and even employers who provide health plans); Joan H. Krause,
Reconceptualizing Informed Consent in an Era of Health Care Cost
Containment, 85 Iowa L. Rev. 261 (1999) (suggesting statutes and
professional disciplinary approaches on the problem of information about
non-covered treatment).
381 Aaron D. Twerski & Neil B. Cohen, The Second Revolution in
Informed Consent: Comparing Physicians to Each Other, 94 Nw. U. L.
Rev. 1 (1999); Lynn M. LoPucki, Twerski and Cohen’s Second Revolution:
A Systems/Strategic Perspective, 94 Nw. U. L. Rev. 55 (1999) (recognizing
some possible adverse effects of such information but supporting
disclosure nonetheless).
382 Pegram v. Herdrich, 530 U.S. 211, 120 S.Ct. 2143, 147 L.Ed.2d
164 (2000).
383 29 U.S.C.A. §§ 1001 to 1461.
384 29 U.S.C.A. § 1144(a) & (c).
385 “A civil action may be brought (1) by a participant or beneficiary
… to recover benefits due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights to future benefits
under the terms of the plan….” 29 U.S.C.A § 1132 (a).
386 See Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488
(2004).
387 Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995).
388 See Pryzbowski v. U. S. Healthcare, Inc., 245 F.3d 266 (3d Cir.
2001) (HMO’s long delay in approving needed services of a specialist was
“administration of benefits,” not a medical decision, hence the plaintiff was
left “without effective relief”); Jennifer Arlen & W. Bentley MacLeod,
Malpractice Liability for Physicians and Managed Care Organizations, 78
N.Y.U. L. Rev. 1929, 1947 (2003) (“MCO insurers can … deny coverage for
any treatment that they conclude is either not medically necessary or
experimental. This authority over insurance coverage effectively grants
MCOs authority to determine the treatment their patients receive in
certain circumstances.”).
389 Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d 151 (10th Cir.
1995) (also reflecting the split of authority on this point among lower
courts); Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.
2003) (emphasizing right to control the “independent contractor” and the
totality of circumstances).
390 See Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (5th Cir.
1992); Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482 (7th Cir.
1996).
391 See Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488
(2004).
392 See 29 C.F.R. § 2560.503–1(c) & (l) (respectively dealing with
delays in determining rights under the plan and providing that violation
gives the patient a right to sue for benefits under the act (not tort
damages)).
393 Family and community abuse seems to be substantial. See
Sieniarecki v. State, 756 So.2d 68 (Fla. 2000).
394 See John B. Breaux & Orrin G. Hatch, Confronting Elder Abuse,
Neglect, and Exploitation: The Need for Elder Justice Legislation, 11 Elder
L.J. 207 (2003). There are almost no reliable data on the actual numbers.
395 General Accounting Office, Nursing Home: More Can Be Done to
Protect Residents from Abuse 2 (March 2002), available at www.gao.gov
with search for GAO-02-312 (reviewing an earlier study). Deficiencies
listed in official reports may be understated. See General Accounting
Office, Many Shortcomings Exist in Efforts to Protect Nursing Home
Residents from Abuse 9 (March 2002), available at www.gao.gov with
search for GAO 02–448T (recognizing “the difficulty of estimating the
extent of resident abuse using nursing home inspection data”).
396 See, e.g., Rachou v. Cornerstone Village Inc., 819 So.2d 473 (La.
App. 2002); Hendrickson v. Genesis Health Venture, Inc., 151 N.C.App.
139, 565 S.E.2d 254 (2002).
397 See Marshall B. Kapp, The Liability Environment for Physicians
Providing Nursing Home Medical Care: Does It Make a Difference for
Residents?, 16 Elder L. J. 249, 262–263 (2009).
398 Id. at 273–274.
399 See, recounting some of these tactics, Marshall B. Kapp, The
Liability Environment for Physicians Providing Nursing Home Medical
Care: Does It Make a Difference for Residents?, 16 Elder L. J. 249, 261
(2009).
400 A state may not prohibit all pre-dispute agreements to arbitrate
personal injury or wrongful death claims against nursing homes, because
such a prohibition would violate the Federal Arbitration Act. Marmet
Health Care Center, Inc. v. Brown, 132 S. Ct. 1201, 182 L. Ed. 2d 42
(2012). Post-Marmet decisions have upheld arbitration agreements, see,
e.g., Entrekin v. Internal Medicine Associates of Dothan, P.A., 689 F.3d
1248 (11th Cir. 2012), even while recognizing that an arbitration
agreement may be invalidated by a state-law contract defense of general
applicability, such as fraud, duress, or unconscionability, without running
afoul of the FAA. See Carter v. SSC Odin Operating Co., LLC, 2012 IL
113204, 364 Ill. Dec. 66, 976 N.E.2d 344 (2012).
401 See § 21.22 (state nursing home statutes).
402 When the facts can be uncovered, punitive damages are justified
in many cases of nursing home neglect. See, e.g., Montgomery Health Care
Facility, Inc. v. Ballard, 565 So.2d 221 (Ala. 1996) ($2 million); Advocat,
Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003) ($21 million);
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) ($9.5
million).
403 See Michael L. Rustad, Neglecting the Neglected: the Impact of
Noneconomic Damage Caps on Meritorious Nursing Home Lawsuits, 14
Elder L. J. 331, 333, 374–75 (2006).
404 Elder residents are particularly prone to injuries from falling and
entitled to reasonable care to protect them from this infirmity. E.g., Owens
v. DeKalb Med. Ctr., Inc., 253 Ga.App. 19, 557 S.E.2d 404 (2001). Others,
often confused, tend to wander off into danger; they are entitled to care to
prevent such wandering. E.g., Bailey v. Rose Care Ctr. Div. of C.A.R.E.,
Inc., 307 Ark. 14, 817 S.W.2d 412 (1991).
405 See Juhnke v. Evangelical Lutheran Good Samaritan Soc’y, 6 Kan.
App. 2d 744, 634 P.2d 1132 (1981) (attack by fellow patient known by
nursing home to be dangerous); Limbaugh v. Coffee Med. Ctr., 59 S.W.3d
73 (Tenn. 2001) (attack by nursing assistant).
406 E.g., Mattox v. Life Care Centers of America, Inc., 337 P.3d 627
(Idaho 2014) (plaintiff’s expert produced sufficient evidence on the medical
standard of care to defeat summary judgment).
407 In Juhnke v. Evangelical Lutheran Good Samaritan Soc’y, 6 Kan.
App. 2d 744, 634 P.2d 1132 (1981), the court thought no expert testimony
was required to support a finding of negligence where the plaintiff was
attacked by a fellow patient, known by the nursing home to have violent
proclivities.
408 See, e.g., Perdieu v. Blackstone Family Prac. Ctr., Inc., 264 Va.
408, 568 S.E.2d 703 (2002) (claim that the nursing home failed to prevent
patient’s falls required expert testimony, which could not be provided by a
hospital nurse); Ayuluk v. Red Oaks Assisted Living, Inc., 201 P.3d 1183
(Alaska 2009) (R.N. and former nursing home investigator allowed to
testify as experts in sexual abuse claim). Hospital nurses are usually
qualified to give opinions as to the standard of care for hospitals in
preventing bedsores or decubitus ulcers, which are common and
preventable injuries in nursing homes. E.g., Gaines v. Comanche County
Med. Hosp., 143 P.3d 203 (Okla. 2006).
409 Carraway v. Kurtts, 987 So.2d 512 (Ala. 2007).
410 See Michael L. Rustad, Neglecting the Neglected: the Impact of
Noneconomic Damage Caps on Meritorious Nursing Home Lawsuits, 14
Elder L. J. 331, 333, 374–375 (2006) (claims eliminated by caps on non-
economic damages because resulting verdicts for actual economic loss of
elderly are too small to pay attorneys).
411 See Tex. Civ. Prac. & Rems. Code § 74.301(b) & (c) (claims against
nursing homes capped not only when negligence was medical malpractice
but also when it related “healthcare” and “safety”).
412 Regions Bank & Trust v. Stone County Skilled Nursing Facility,
Inc., 345 Ark. 555, 563, 49 S.W.3d 109, 112 (2001); Harder v. F.C. Clinton,
Inc., 948 P.2d 298 (Okla. 1997).
413 E.g., Richards v. Broadview Heights Harborside Healthcare, 150
Ohio App. 3d 537, 782 N.E.2d 609 (2002).
414 See Rosemont v. Marshall, 481 So.2d 1126, 1130 (Ala. 1986) (“the
standard of care applicable to intermediate nursing care facilities such as
Rosemont”).
415 See Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8 (Tex. App. 2002)
(claim that nursing home overdosed resident on medicines and did so for
the illicit purpose of staff convenience was merely a medical malpractice
claim); Alphin v. Huguley Nursing Center, 109 S.W.3d 574 (Tex. App.
2003) (allegations of “civil conspiracy”, and fraud due to a “knowing
violation” of the nursing home statute was a medical malpractice claim).
416 “In nursing homes, the primary caregivers are nurse aides.”
General Accounting Office, Nursing Home: More Can Be Done to Protect
Residents from Abuse 7 (March 2002), available at www.gao.gov with
search for GAO-02-312.
417 Richard v. Louisiana Extended Care Ctrs., Inc., 835 So.2d 460 (La.
2003).
418 As in Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001).
419 Doe v. Westfall Health Care Ctr., Inc., 303 A.D.2d 102, 755
N.Y.S.2d 769 (2002) (staff member raped resident who had been in
vegetative state for years, resident became pregnant and gave birth to a
child); Healthcare Ctrs. of Texas, Inc. v. Rigby, 97 S.W.3d 610 (Tex. 2003)
(rape or attempted rape by resident who was not properly controlled by
staff in spite of many instances that gave warning of his danger to others);
Niece v. Elmview Group Home, 929 P.2d 420 (Wash. 1997) (child in home
for developmentally disabled sexually assaulted by staff member).
420 Roberson v. Provident House, 576 So.2d 992 (La. 1991).
421 Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex.
2005). The statute was amended after the events in Diversicare, which led
a different Texas court to conclude that “safety” claims, as distinct from
treatment and health claims, would be covered by the statute only if they
were “directly related to health care.” Valley Baptist Med. Ctr. v. Stradley,
210 S.W.3d 770 (Tex. App. 2006).
422 42 U.S.C.A. § 1396r(c)(1)(A)(ii) (“right to be free from physical or
mental abuse, corporal punishment, involuntary seclusion, and any
physical or chemical restraints imposed for purposes of discipline or
convenience and not required to treat the resident’s medical symptoms”).
423 See Clites v. State, 322 N.W.2d 917 (Iowa 1982).
424 The complaint is often heard that residents who cannot control
bowel movements are left lying in their own feces. E.g., Advocat, Inc. v.
Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003).
425 E.g., DeLaney v. Baker, 20 Cal.4th 23, 971 P.2d 986, 82
Cal.Rptr.2d 610 (1999); Horizon/CMS Healthcare Corp. v. Auld, 985
S.W.2d 216 (Tex. App. 1999), aff’d, Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887 (Tex. 2000).
426 See Texas Health Enters., Inc. v. Geisler, 9 S.W.3d 163 (Tex. App.
1999) (low levels of medications ingested caused seizures); Julie A. Braun
& Elizabeth A. Capezuti, A Medico-legal Evaluation of Dehydration and
Malnutrition among Nursing Home Residents, 8 Elder L. J. 239, 247
(2000).
427 Crowne Investments, Inc. v. Reid, 740 So.2d 400 (Ala. 1999).
428 See Marshall B. Kapp, Resident Safety and Medical Errors in
Nursing Homes, 24 J. Legal Med. 51, 57 (reporting studies showing a high
incidence of serious, often preventable adverse drug events).
429 As claimed in Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8 (Tex.
App. 2002) (claim dismissed for failing to comply with special
requirements for medical malpractice suits).
430 Bailey v. Rose Care Ctr., Div. of C.A.R.E., Inc., 307 Ark. 14, 817
S.W.2d 412 (1991).
431 Nutrition, hydration, and turning to prevent bedsores are not only
custodial rather than medical, they are specifically required by federal
law. See, respectively, 42 C.F.R. §§ 483.25(i), 483.25(j), 483.25(c). The
presence of lawful standards eliminates any contention that medical
judgment is involved. State regulations may independently specify some
such elementary requirements. E.g., Ariz. Admin. Code R9–10–912
(detailed dietary rules).
432 See Taylor v. Vencor, Inc., 525 S.E.2d 201 (N.C. App. 2000)
(defendant failed to supervise resident properly, with the result that the
resident caused a fire from which she suffered deadly burns, this is
ordinary negligence, not medical malpractice); Virginia S. v. Salt Lake
Care Ctr., 741 P.2d 969 (Utah Ct. App. 1987) (“[C]ases require that
supervision be tailored to the known needs of the patients.”).
433 Rein v. Benchmark Construction Co., 865 So.2d 1134 (Miss. 2004).
434 Richards v. Broadview Heights Harborside Healthcare, 150 Ohio
App.3d 537, 782 N.E.2d 609 (2002).
435 Selvin v. DMC Regency Residence, Ltd., 807 So.2d 676 (Fla. Dist.
Ct. App. 2001).
436 As in Chiu v. City of Portland, 788 A.2d 183 (Me. 2002) (landlord
might be liable for fall of child from upper window if landlord retained
control).
437 See Palmer v. Intermed, Inc., 270 Ark. 538, 606 S.W.2d 87 (1980)
(hip broken, no evidence of where or how, no evidence of defendant’s
control or assumed duty, res ipsa loquitur rejected); Ivy Manor Nursing
Home, Inc. v. Brown, 488 P.2d 246 (Colo. App. 1971) (fall in the bathroom,
nursing home negligence not the more likely explanation); Murphy v.
Allstate Ins. Co., 295 So.2d 29 (La. App. 1974) (dementia resident
wandered off into traffic, res ipsa loquitur not warranted).
438 See Julie A. Braun & Elizabeth A. Capezuti, The Legal and
Medical Aspects of Physical Restraints and Bed Siderails and Their
Relationship to Falls and Fall-Related Injuries in Nursing Homes, 4
DePaul J. Health Care L. 1 (2000).
439 In Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir.
1982), the resident, known to be a persistent wanderer, had to walk past a
nurses station to exit the building; the court thought this permitted an
inference that the home was negligent in supervising the exit, though the
plaintiff lost on other grounds.
440 See § 21.22.
441 See Roberson v. Provident House, 576 So.2d 992 (La. 1991)
(insertion of catheter over objection of quadriplegic resident, nursing home
held liable). Any unprivileged touching that is not consented to, or
apparently consented to, is a battery. See § 4.6.
442 Courts and lawyers have tended to think chemical restraint as
negligence rather than false imprisonment. See Clites v. State, 322
N.W.2d 917 (Iowa 1982) (long-term administration of tranquilizers in
substandard way causing harm to resident of state facility for the
“mentally retarded,” affirming judgment for the plaintiff); Shaw v. BMW
Healthcare, Inc., 100 S.W.3d 8 (Tex. App. 2002) (allegedly, defendant
dosed the resident to prevent wandering for the convenience of nursing
staff, a violation of statute; although plaintiff claimed an unspecified
“intentional tort,” the court regarded the claim as a mere recasting of a
negligence claim).
443 See §§ 31.3 & 31.4. In Doe v. Westfall Health Care Ctr., Inc., 303
A.D.2d 102, 755 N.Y. S.2d 769 (2002), the court suggested that the
plaintiff would have difficulty with the scope of employment issue in a
common law suit against a nursing home for rape by a staff member, but
that the claim would be actionable under a nursing home statute.
444 The vicarious liability rule has been applied in other contexts, as
well. Costos v. Coconut Island Corp., 137 F.3d 46 (1st Cir. 1998) (rape by
manager of inn where the plaintiff was staying); Mary M. v. City of Los
Angeles, 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341 (1991) (employer
of police officer vicariously liable for officer’s rape of a woman he detained;
job gave officer much coercive power over citizen and that is potential for
abuse).
445 Stropes v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547
N.E.2d 244 (Ind. 1989) (vicarious liability for sexual abuse of
institutionalized child with mental ability of a baby); Samuels v. Southern
Baptist Hosp., 594 So.2d 571 (La. App. 1992) (rape of teenager committed
to a psychiatric unit).
446 See Deerings West Nursing Center v. Scott, 787 S.W.2d 494 (Tex.
App. 1990) (negligently hiring unlicensed male nurse who later allegedly
struck 80-year-old visitor; licensing process would have revealed 56
convictions of moral turpitude, affirming judgment for $35,000 actual and
$200,000 punitive damages).
447 See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001).
448 See § 25.4.
449 Regions Bank & Trust v. Stone County Skilled Nursing Facility,
Inc., 345 Ark. 555, 49 S.W.3d 107 (2001).
450 Virginia S. v. Salt Lake Care Ctr., 741 P.2d 969 (Utah Ct. App.
1987).
451 See Victoria Vron, Using Rico to Fight Understaffing in Nursing
Homes: How Federal Prosecution Using RICO Can Reduce Abuse and
Neglect of the Elderly, 71 Geo. Wash. L. Rev. 1025 (2003).
452 See Julie A. Braun & Elizabeth A. Capezuti, A Medico-Legal
Evaluation of Dehydration and Malnutrition among Nursing Home
Residents, 8 Elder L. J. 239, 247 (2000).
453 See Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003)
(consistent understaffing leading to dehydration, malnutrition; an
incontinent patient was left in her feces; punitive award (remitted to $21
Million) justified partly on understaffing evidence); Miller v. Levering
Regional Health Care Center, LLC, 202 S.W.3d 614 (Mo. Ct. App. 2006);
Texas Health Enters., Inc. v. Geisler, 9 S.W.3d 163 (Tex. App. 1999)
(understaffing apparently the basis for finding negligence and awarding
punitive damages); Manor Care, Inc. v. Douglas, 763 S.E.2d 73 (W.Va.
2014) (affirming punitive damages award of $32 million were chronic
understaffing of nursing home resulted in resident’s death from
dehydration).
454 42 U.S.C.A. § 1939i–3(b)(4)(C)(i)
455 See, e.g., Richard P. Kusserow & Thomas E. Herrmann, More
Health Care Executive and Board Accountability on the Way, 12No. 4 J.
Health Care Compliance 41 (July/August 2010) (reporting the Inspector
General’s efforts to deal with particular instances of chronic
understaffing).
456 Where the plaintiff cannot identify specific acts of negligence,
reliance on res ipsa loquitur might be appropriate. See, g., Ward v.
Forrester Day Care, Inc., 547 So.2d 410 (Ala. 1989).
457 Unless grounds for notifying the physician are obvious, the
plaintiff will presumably be required to prove either a statutory obligation
to notify or a standard of care determining that notification is required
under conditions present in the case. See Rosemont v. Marshall, 481 So.2d
1126 (Ala. 1985); Norman v. Life Care Ctrs. of America, Inc., 107 Cal. App.
4th 1233, 132 Cal. Rptr. 2d 765 (2003).
458 See 42 U.S.C.A. § 1395i–3; 42 U.S.C.A. § 1396r; 42 C.F.R. §
483.25(c). The statutes list a number of “resident rights,” but these are
mainly intended to protect against financial exploitation, invasion of
privacy, interference with communication and the like, not rights to care.
Care rights are presented as standards the nursing home must meet.
459 42 U.S.C.A. § 1395i–3(b)(3).
460 42 U.S.C.A. § 1395i–3(b)(4)(A)(iv).
461 See, e.g., 42 C.F.R. § 483.25(c).
462 Stewart v. Bernstein, 769 F.2d 1088 (5th Cir. 1985); Nichols v. St.
Luke Center of Hyde Park, 800 F.Supp. 1564 (S.D. Ohio 1992).
463 42 U.S.C.A. § 1396r.
464 Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 F.3d
520 (3d Cir. 2009).
465 See § 11.1.
466 Conservatorship of Gregory, 80 Cal. App. 4th 514, 95 Cal. Rptr. 2d
336 (2000); McLain v. Mariner Health Care, Inc., 279 Ga.App. 410, 631
S.E.2d 435 (2006).
467 As in Conn. Gen. Stat. Ann. § 19a–550; Ga. Code Ann., § 31–8–
108(a)(2) (requiring compliance with “applicable laws and regulations”);
N.C. Gen. Stats. § 131E–117.
468 See §§ 11.2 & 11.6.
469 Conley v. Life Care Centers of America, Inc., 236 S.W.3d 713, 733
(Tenn. Ct. App. 2007).
470 Conn. Gen. Stat. Ann. § 19a–550; N.C. Gen. Stats. Ann. § 131E–
117.
471 See Brogdon v. National Healthcare Corp., 103 F.Supp.2d 1322
(N.D. Ga. 2000) (Georgia statute “imposes enforceable duties upon
operators of long-term care facilities”).
472 N.Y. Pub. Health L. § 2801–d. By its terms, this statute is
“cumulative,” adding to any other remedy the resident might have. See
Kash v. Jewish Home and Infirmary of Rochester, N.Y., Inc., 873 N.Y.S.2d
819 (App. Div. 2009).
473 Thus the Missouri statute creates a private right of action, see
Bachtel v. Miller County Nursing Home Dist., 110 S.W.3d 799 (Mo. 2003),
but the definition of neglect that might be the basis for the cause of action
for physical harm specifies no acts or omissions that are forbidden, only
the requirement of “services which are reasonable and necessary to
maintain the physical and mental health of the resident, when such
failure presents either an imminent danger to the health, safety or welfare
of the resident or a substantial probability that death or serious physical
harm would result.” Mo. Rev. Stats. § 198.006 (defining neglect); Mo. Rev.
Stats. § 198.088 (listing general rights of residents). This generality would
almost certainly leave the plaintiff with a need to show by proof extrinsic
to the statute what was reasonable and necessary, perhaps exactly the
same proof that would be required without a statute.
474 210 ILCS 45/3–602 (“The licensee shall pay the actual damages
and costs and attorney’s fees to a facility resident whose rights, as
specified in … this Act, are violated”); N.J. Stat. Ann. § 30:13–8 (“Any
plaintiff who prevails in any such action shall be entitled to recover
reasonable attorney’s fees and costs of the action”); Rev. Code Wash. §
74.34.200(3) (a plaintiff who prevails in asserting statutory rights, “shall
be awarded his or her actual damages, together with the costs of the suit,
including a reasonable attorney’s fee”).
475 Cal. Welf. & Inst. Code § 15657 (fee award only if the plaintiff
proves nursing home conduct that is reckless or worse, by clear and
convincing evidence).
476 Ariz. Rev. Stat. § 46–455; Mo. Rev. Stats. § 198.093; N.Y. Pub.
Health L. § 2801–d(6).
477 Ark. Code. Ann. § 20–10–1209(a)(5).
478 Cal. Code Civ. Pro. § 377.34 provides that damages in survival
type actions—suits that the decedent could have pursued had she lived—
do not include recovery for pain and suffering. Cal. Welf. & Inst. Code §
15567(b) provides that these limitations do not apply when the plaintiff
can recover under the elder protection law embodied in that section.
479 Fla. Stat. Ann. § 400.023(1).
480 Alterra Healthcare Corp. v. Bryant, 937 So.2d 263 (Fla. Dist. Ct.
App. 2006).
481 N.Y. Pub. Health L. §§ 2801–d (1) & (2). See, recognizing that
reasonable care is an affirmative defense, Doe v. Westfall Health Care
Ctr., Inc., 303 A.D.2d 102, 755 N.Y.S.2d 769 (2002).
482 Cal. Welf. & Inst. Code § 15610.57(b)(4).
483 The California statute makes neglect actionable and includes
attorney fees where the neglect is reckless or worse. See Cal. Welf. & Inst.
Code § 15657.
484 See §§ 13.3 to 13.7.
485 As to these statutes, see § 21.14.
486 See Makas v. Hillhaven, Inc., 589 F.Supp. 736 (M.D. N.C. 1984).
487 See DeLaney v. Baker, 20 Cal. 4th 23, 971 P.2d 986, 82 Cal. Rptr.
2d 610 (1999); Estate of McGill v. Albrecht, 57 P.3d 384 (Ariz. 2002).
488 Richard v. Louisiana Extended Care Ctrs., Inc., 835 So.2d 460 (La.
2003) (many violations of statute could never be characterized as medical
malpractice). Fla. Stat. Ann. § 400.023(1) (exempting nursing home
plaintiffs from the statutes that give special protections to medical
malpractice defendants).
549
Chapter 22
LIABILITY OF GOVERNMENT ENTITIES,

Analysis
A. GOVERNMENT ENTITIES
2. Federal Government Liability Under the FTCA
§ 22.2 The Plan of Federal Government Tort Liability
§ 22.4 The Feres Rule: Tort Claims by Military Personnel
§ 22.5 Other Statutory Exceptions to FTCA Liability
3. Immunities and Liabilities of State and Local Entities
§ 22.7 Local Public-Entity Immunity and Its Waiver
§ 22.8 Discretionary Immunity of State and Local Entities
§ 22.10 Excluding Liability for Police and Fire Protection
§ 22.11 Excluding Liability for the Release of Dangerous Persons
B. INDIVIDUAL GOVERNMENT AGENTS
C. CIVIL RIGHTS CLAIMS
§ 22.15 Section 1983 Claims Against State and Local Officials
§ 22.16 Section 1983 Claims Against State and Local Entities
__________
A. GOVERNMENT ENTITIES
History of sovereign immunity. As a matter of sheer power, the
medieval kings of England simply did not permit suits against
themselves in their own courts, much less in the courts of feudal
barons. Eventually, this power was cloaked with a theory or ideal:
kings could not be sued because kings were governed by “divine
right” and because “The King can do no wrong.” As the state took
over functions of the monarch, it inherited the monarch’s
immunity.
550
Federal and state government immunity. The thoroughly

undemocratic ideas that underlay the king’s immunity continued
to prosper after the American Revolution,1 so that both federal and
state governments enjoyed a complete immunity from suit except
so far as they consented to suit or waived the immunity. The state
and federal immunity within the United States covered all the
departments and agencies of the respective governments.
Constitutions created one partial exception to the general
immunity by providing that governments could not take private
property for public use without paying just compensation.2
Municipal immunity. Municipalities and local public entities
also enjoyed governmental immunities, but municipalities were not
sovereigns and their immunity historically grew out of an entirely
different idea: that they were not “entities” at all, just collections of
people.3 Municipalities have long since been chartered by the state
and are usually recognized today as corporate entities.
Nevertheless, the immunity remained long after the historical
reason disappeared.
Officers and employees. The immunity of sovereigns and
municipalities did not extend to officers or employees of public
entities. At one time, it was said that public officers were in fact
generally liable for their torts, even if the public entity they served
was immune. Today, however, a web of immunities, some absolute,
some qualified, may protect public officers in many instances.4
Abolishing immunities. Over the years, legislators found
reasons, not for the blanket protection of government wrongdoing,
but for limited immunities. First and most broadly, some kind of
immunity was required to preserve the independence of each
branch of government, so that the judicial branch could not intrude
upon the appropriate functions of the legislative and executive
branches by adjudicating tort suits. Second, some governmental
decisions could not be measured against a standard of care.
Otherwise, it is now usually accepted that government, instituted
to protect and foster the well-being of citizens, should be obliged to
make good on the losses it causes by misconduct.
Although all members of the public suffer a cost in some
theoretical sense when governmental funds are paid to injured
individuals, other members of the public—the injured persons—
will suffer in the same amount if the public takes the benefits of
governmental activity without also paying its costs. Even if
governmental liability does not expose wrongdoing or provide
incentives for better government, at least some liabilities have
come to seem appropriate on these grounds and others like them.
Consequently, the traditional blanket immunities of sovereigns
and municipalities have been abolished or substantially modified
at both the federal and state levels. Nevertheless, some kind of
immunity, or unique constraints on duties of governmental
entities, remains everywhere. In fact, many courts construe the
statutes waiving
551
immunity in favor of immunity rather than in favor of

governmental accountability,5 although some take the opposite
view, favoring adjudication on the merits when the statute does not
clearly grant immunity.6
2. Federal Government Liability Under the
FTCA
§ 22.2 The Plan of Federal Government Tort
Liability
In 1887, Congress authorized courts to entertain contract suits
—but not tort suits—against the United States.7 At various times,
however, Congress consented to tort suits against the government
in particular instances,8 sometimes simply by providing that a
federal agency could sue or be sued.9 In addition, Congress dealt
with many individual cases by private legislation that
appropriated funds directly to the victim.10 Such a procedure
became a burden to Congress. Finally, in 1946, it enacted the
Federal Tort Claims Act (FTCA), which gave a general consent to
suit against the United States in federal courts, subject to a
number of specific limitations.11
Procedural requirements. Procedurally, no suit may be brought
until a claim has first been presented to the appropriate federal
agency.12 The statute itself contains a two-year statute of
limitations.13 After the agency has denied the claim, or has delayed
more than six months in determining the claim, the plaintiff may
sue. Suit must be brought in federal court.14 No jury trial is
permitted in FTCA claims.15 Under the statute as it now stands,
the only proper party is the government, or the agency involved;
governmental employees who commit torts in the scope of their
employment are not liable at all under the FTCA.16
Governing substantive law. Although the claim must be brought
in federal court, state tort law governs the rights and duties of the
parties. The FTCA requires the court
552
to follow the law of the state in which the government’s

negligent act or omission occurred.17 The statute makes it clear
that liability for a negligent act or omission depends upon a
showing that the employee was acting within the scope of his
government employment.18 Federal law governs the question
whether the entity in question is a federal agency, but the law of
the appropriate state determines whether the employee is acting
within the scope of his government employment.19 State law also
governs the ordinary substantive tort law questions—the rules of
causation and comparative fault, for example,20 and all the rules
limiting duties, such as those governing suits against health care
providers or landowners.21 In some instances, state law might
recognize a state-law tort duty arising out of a federal statute and
if so, the government’s violation of such a statute may furnish the
basis for federal governmental liability.22
Governing remedial law. Since state law control the rights and
duties of the parties, it also controls the determination of damages,
which is a practical reflection of the state-law right.23 The FTCA
itself, however, limits that general rule in two respects. First, the
plaintiff in an FTCA case cannot recover punitive damages, and
second, interest on the amounts due does not begin to accrue until
judgment is entered.24
Comparable private-person liability. The main substantive
directive of the statute provides that the government is to be liable
under the appropriate state law when a private person would be
liable under like circumstances.25 The thrust of this provision is
simply to apply the substantive law of the appropriate state
without regard to the government’s historic immunity. It only
requires that general legal principles would dictate liability26 or its
limits27 if a private person were sued for similar acts or omissions.
For example, only the government inspects mines, but private
persons carry on non-governmental
553
safety inspections and can be liable for their negligence in doing

so; consequently, the government can be liable for negligent mine
inspections.28
Limitations. Although the FTCA begins with a general rule that
government is liable for torts in much the same way a private
person would be, the Act then carves out exceptions, withholding
jurisdiction from courts when the government’s alleged tort is the
enforcement of a statute or the exercise of a discretionary
function,29 and also in a number of very particular instances listed
in the statute.30 Beyond this, the Supreme Court itself has
concluded that the government cannot be held strictly liable31 and
that the government cannot be liable for its torts to members of the
armed forces.32
Civil rights claims against the federal government. The FTCA
relies, at least formally, on the relevant state’s law of torts. It does
not authorize a suit against the federal government for violation of
constitutional or other federally guaranteed rights. Constitutional
civil rights claims based upon federal actions must be asserted, if
at all, against the individual officers responsible, not against the
government.33
Protecting Discretion
Enforcement or nonenforcement of statutes. The FTCA retains
sovereign immunity in two major and related instances. The courts
have no jurisdiction to hear claims based simply upon the
government’s enforcement of a statute or regulation, even if the
statute or regulation turns out to be invalid.34 This is a corollary to
the idea that under the separation-of-powers principle, courts
cannot force Congress to pass a statute or to repeal one, because
the power to adopt or reject a statute is legislative in nature, not
judicial.35 The FTCA recognizes that the government may be liable
for negligent acts committed while enforcing a statute—an agent’s
negligent driving while enforcing a statute, for example—but not
for the mere fact of enforcement itself.
Enactment or failure to enact regulation. Even more clearly, the
government cannot be held for failing to enact a statute or a set of
regulations, or for adopting a statute or regulations that cause
harm. The fact that the plaintiff’s injury could have been avoided if
a government agency had adopted a reasonable set of regulations
establishes no claim at all.36 Equally, the government is free to
adopt a public-works project, such as a flood control program that
causes the plaintiff harm, without liability in tort.37
554
Discretionary immunity. The statute likewise retains sovereign

immunity for governmental performance or nonperformance of a
discretionary function.38 For instance, an agency’s decision to
regulate a financial institution,39 to carry out safety inspections,40
to interdict foreign fruit suspected of containing poisons,41 to issue
or deny a grazing permit,42 to fire employees,43 to delegate
hazardous waste disposal to an independent contractor,44 or to
parole a prisoner,45 are all protected activities for which liability
cannot be imposed, so long as the activities are generally or
specifically authorized by statute.46 In such cases, the fact that the
governmental agency has acted negligently or even abused its
discretion is irrelevant, for the government is immune.
Justification. The chief justification for this hiatus in
governmental responsibility lies in the separation-of-powers
concept.47 Other reasons support a degree of protection in
particular cases. Many administrative decisions cannot be
measured against a standard of care. Others may be like judicial
decisions, best left to be redressed by internal review rather than
by liability. The problem in all cases has been to determine what
counts as a discretionary decision that must not be reviewed by
courts and what, on the contrary, counts as simply tortious
conduct.
Operational-planning distinction. In the first generation after
the enactment of the FTCA, the Court worked with a distinction
between planning decisions and operational decisions. The first
case referred to the “level” of the decision,48 but later cases seemed
more concerned with the nature of the decision.49 If it was a
planning decision, involving a broad issue of social or political
policy, it was discretionary. The Coast Guard’s decision to operate
a lighthouse might be a planning decision and protected, but its
failure to maintain the light, with a resulting shipwreck, would be
merely operational negligence for which liability would be
appropriate.50 Later decisions of the Supreme Court, however,
have shifted focus and perhaps have eliminated the planning-
operational terminology.
555
The Berkovitz case: room for choice and a decision grounded in

social or political policy. In the Berkovitz case,51 one of the
plaintiff’s allegations was that a government agency licensed the
manufacture of a polio vaccine. The vaccine caused harm to the
plaintiff. The government agency allegedly issued the license
without receiving data required by regulation to show that the
manufacturer’s product was safe. The agency had no rightful choice
about this matter. It could not rightfully violate the statute or
regulation. For this reason it had no discretion and no
discretionary immunity.
The Court in Berkovitz envisioned a kind of two-part test for the
discretionary immunity. (1) Did the government have room for
choice? (2) If so, did the choice depend upon “decisions grounded in
social, economic, and political policy?” If the answer to either
question is “no,” the discretionary immunity does not protect the
government (although some other rule may do so). The first part of
the test asks whether any discretion at all is involved. If the
government had no choice because constitutional, statutory, or
regulatory rules compelled a given decision, no discretion was
involved at all.52 The second part of the test asks whether the
discretion is the kind that is protected—discretion in decision
making that involves social, economic, or political “policy
judgment.” Although the planning-operational terminology is
subordinated to these tests, governmental acts in implementing
policy, as distinct from forming policy, usually will not involve
policy judgment and thus will usually not be protected.53
United States v. Gaubert: low-level decisions susceptible of policy
analysis. Although the Supreme Court clearly adopted the
principle that a decision on social, economic, or political issues is
required to establish discretionary immunity, the Court in
Gaubert54 also established some rules that tend to undermine that
principle. First, Gaubert held that a discretionary decision can be
made at any level of the government, as long as it was “susceptible
to policy analysis.”55 The Court also held that the immunity for
discretion stands to bar a claim even if the government did not
actually consider any policy issues at all, at least when the
discretion finds its source in “established governmental policy, as
expressed or implied by statute, regulation, or agency
guidelines.”56 Both rules have been criticized as providing
excessive protection for negligent governmental decisions that
cause harm.57
Applications and Examples
Regulatory activity and public-benefit programs. Regulatory
activity (or inactivity) may be the obvious case for protection under
the discretionary immunity. Even if the FAA is required to inspect
airplanes for safety, it may decide on spot-checks rather than
complete strip-down inspections of all planes.58 Regulation of
financial institutions may in the end cost investors millions, but it
is no surprise to find that such regulation, even
556
in its details, is discretionary and protected.59 Governmental

decisions involving distribution of benefits through large public
programs are presumably in the same category. For instance, a
governmental decision to implement or reject flood control
programs may affect lives and property of many persons, but
unless statute or regulation is violated, such decisions are at the
core of discretionary immunity.60 Even without the discretionary
immunity, courts might be forced to reach the same result because
the government would ordinarily have no duty to disburse public
benefits and it is hard to imagine a standard of care that could be
applied to many regulatory decisions apart from statutory
directives themselves.
Nondeliberative decisions. Governmental decisions that are not
in fact based on deliberation or consideration of policy do not sound
like policy decisions. As already indicated, Gaubert held that a
decision might be discretionary and protected even if government
agents made the decision without considering policy, as long as the
decision was “susceptible to policy analysis.” However, even if
Gaubert applies outside the regulatory case, the discretionary
immunity only protects policy decisions “based on the purposes
that the regulatory regime seeks to accomplish.” Driving a motor
vehicle “requires the constant exercise of discretion” but negligent
driving is not protected because the discretion in driving is not
“grounded in regulatory policy.”61
Policy choices made pursuant to standards. Beyond this, a
discretionary decision must be one that is potentially based on
something that could be called policy, and it must be a policy about
social, economic, or political issues. Many choices involving
balancing of costs and benefits might not be policy choices at all
because they are choices made pursuant to safety standards or
goals. So the government has rightly been held subject to liability
for negligent operation of motor vehicles,62 airport control
towers,63 and lighthouses,64 as well as for negligence in treatment
of prisoners65 and in maintenance of government property.66
Indeed, in most of these cases the discretionary immunity is not
even asserted.
Professional, scientific, or technical decisions. Similarly, when
the objective is to follow a scientific, technical, or safety standard,
the government agent may have many choices. The agent may be
required to balance many diverse considerations, but the
557
choices are not often choices of policy.67 Medical decisions by

government doctors are in this category. Even if regulations
provide that the Veterans’ Administration “may” admit or reject a
patient, when the VA refuses admission on the basis of a negligent
medical judgment, the government may be liable for the harm
done.68 An agency’s negligence in releasing a dangerous vaccine is
in the same category if the decision is scientific or technical rather
than governmental.69 Indeed, the presence of a preexisting safety
standard, or any appropriate standard governing the activity,
should tend to displace discretion.70
Expansive reading of the immunity. In spite of the cases just
mentioned, federal courts have tended to read the discretionary
immunity quite broadly.71 Sometimes they treat routine
governmental decisions as decisions of “policy.” Sometimes they
ignore the policy element and treat any choice as sufficient without
considering whether it involves a policy choice on a social or
economic matter.72 Surely no policy judgment is involved when a
government driver operates a vehicle in a way to cause a deadly
accident. Yet, without finding any policy element at all, the Tenth
Circuit invoked the discretionary immunity in such a case.73
Another Tenth Circuit case expressly found that a park ranger’s
actions in unsuccessfully guiding a park visitor around a hostile
moose were matters of government “policy.”74 Building bridges
with defective guardrails seems even less a matter of policy. But
the Fourth Circuit, by no means alone, thinks it is a matter of
policy because it is likely to entail an allocation of resources.75
Such a conception of policy encompasses virtually all human acts
and certainly all safety measures, few of which can be cost-free.76
558
Criticism of broad “policy” formulations. When federal courts
use the discretionary immunity to protect all governmental
decisions involving costs and benefits or allocation of resources,
their logic could foreclose all possibility of governmental liability
for negligence. That is so because negligence invariably entails
some estimate about the reasonableness of the costs and benefits of
the defendant’s conduct. It seems plain, then, that some courts
have too quickly equated cost-benefit decisions with the
discretionary immunity. Excessive reliance on the discretionary
immunity to resolve FTCA cases also tends to displace state tort
law, which, by statute, is controlling on the substantive issues. It is
true that discretion itself is a federal, not a state, issue. But as
courts increasingly rely on federal statutes and regulations
defining employee’s duties, they increasingly displace state tort
law, using their analysis of discretion as a substitute for analysis of
duty or negligence issues. Finally, legal incentives should not be
set perversely to discourage governmental concern with the kind of
safety that other institutions are expected to consider. If Ford
produces a dangerous car that tends to explode upon a rear impact,
consumers will sooner or later get the information and seek
alternatives. In addition, Ford is encouraged to avoid such designs
by tort rules that allow victims to recover. But if the federal
government chooses dangerously bad materials for bridge railings,
highway users will be unlikely to hear of it—and even if they do
they cannot turn to another government for safer highways. A
more circumspect application of the discretionary immunity would
help ensure that the government is held to reasonable safety
standards analogous to those found in the private sector.
§ 22.4 The Feres Rule: Tort Claims by Military
Personnel
Combatant activity, foreign country claims. The FTCA provides
a number of specific exceptions to the waiver of immunity, one of
which retains the immunity for all claims “arising out of the
combatant activities of the military or naval forces, or the Coast
Guard, during time of war.”77 Another exception that can apply
even to protect non-combatant military operations is the immunity
for claims “arising in a foreign country.”78 Other particular
exceptions may also apply if the military action comes within their
terms.
The Feres “incident to service” rule. The largest protection
against liability for torts of a military origin is not to be found in
the statute, however, but was created entirely by the Supreme
Court in Feres v. United States.79 In that case, a soldier on active
duty perished in a barracks fire, allegedly because of the Army’s
negligence. The soldier’s executrix sued. In companion cases,
soldiers sued for Army negligence in performing surgery. The
Court concluded that, although the statute contained no language
protecting the government from such liabilities, the government
should nevertheless be protected against suits “for injuries to
servicemen where the injuries arise out of or are in the course of
activity incident to service.” The Feres rule, initially applied to
suits against the government under the FTCA, has been carried
over to civil rights cases against government agents.80
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Rationales for Feres. By ordinary standards of statutory

construction, the decision has seemed wrong to most observers81
and the Supreme Court’s applications of it have created a “troubled
doctrine,”82 the meaning of which is uncertain decades after its
genesis.83 Most of the original rationales for the Feres rule have
been undermined, altered, or applied erratically in later decisions
of the Supreme Court. The Feres Court’s first rationale, that there
are no comparable private liabilities because private persons do not
have armies and because the Army was not historically liable for
torts, has been quietly shelved.84 The second rationale, that
military service members should not recover in tort because they
are entitled to military benefits for injury or death,85 has been
undermined by decisions that grant recovery to others in the same
position, including discharged veterans,86 and by decisions that
deny recovery even to those who have no such benefits.87 The last
Feres rationale, that service members stand in a distinctive
relationship to the government so that federal law should control,
was at best a strange argument to raise against a statute that
neither exempted military negligence nor provided for the
application of federal law, and has been incrementally altered in a
series of subsequent cases. It now appears as an entirely different
idea: the courts must not adjudicate tort claims because to do so
“might” interfere with military discipline.88 Although the military-
discipline rationale has some affinity with the discretionary
immunity,89 the Feres rule it is intended to support is far, far
broader, because the rule excludes liability for all injuries “incident
to service,” whether command or discretionary decisions are
involved or not.90 Thus for example, an ordinary case of medical
malpractice, such as negligent prenatal care for a soldier, does not
usually invoke the discretionary immunity but does invoke the
Feres immunity.
Including off-duty service members. Although the Feres rule
does not ordinarily bar claims of service members who are injured
while they are on furlough,91 the Supreme Court ruled out a claim
for death of a furloughed solider who was kidnapped and murdered
by another service man, allegedly because the Army failed to
control the killer,
560
whose propensity for violence was known. To permit such a suit,

the Court thought, would implicate military discipline in the sense
that commanding officers would have to defend their decisions to a
civilian court.92 The Feres incident-to-service rule was thus
subordinated to the concern over military discipline,93 which in
turn has become a concern to avoid judicial intrusion on decisions
of the armed services.
Including claims based on civilian negligence. The Court has
gradually expanded its concept of military discipline. In United
States v. Johnson,94 a U.S. Coast Guard pilot died in a crash
allegedly caused by the negligence of a civilian FAA controller.
Although the plaintiff did not charge negligence against any
branch of the armed forces, Justice Powell argued that military
discipline included “duty and loyalty to one’s service and to one’s
country.” He thought that suits by service members against the
government for negligence in any branch “could undermine the
commitment essential to effective service and thus have the
potential to disrupt military discipline in the broadest sense of the
word.” The Court has also held that whether the particular suit
would undermine discipline was irrelevant. If injury was incident
to service, no suit would be permitted.95
Injury after discharge, or during furloughs. The Feres rule bars
claims by members of the armed services, including reservists on
active duty,96 members of the National Guard,97 and ROTC
cadets,98 but only those claims that arise “incident to service.” If
government negligence occurs when the plaintiff has no active
connection with the military, the Feres rule does not protect the
government against liability. A soldier on furlough struck by a jeep
on a civilian highway,99 an Air Force sergeant on a weekend pass
injured when an Air Force plane crashed into his house,100 a
discharged veteran who is given negligent treatment at a VA
hospital101—none has sustained injury “incident to service.”
Accordingly, each may proceed with suit.
In active service but off duty. Courts have usually thought that a
service member injured while on active duty is barred by Feres
even if she is in a sense “off duty” at the moment of injury.102
Nevertheless, courts may be reluctant to extend the Feres rule to
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bar a claim by an off-duty service member who is not involved

in any military errand, and is injured off the base.103
Broad interpretation of incident-to-service test. As the cases
demonstrate, courts have usually interpreted “incident” to service
quite broadly.104 Although peacetime medical treatment does not
seem particularly military, the service member who is injured or
killed by military surgery105 or misdiagnosis106 or negligent
prenatal care107 is barred by Feres. So is one who dies in a
barracks fire although the connection to military discipline is only
that the dead soldier was sleeping in assigned quarters.108 An
enlisted woman who suffers sexual harassment has no claim
because such harassment is incident to service.109 A recruit who
dies because a brutal “trainer” holds his head under water dies
incident to service.110 Enlisted men who are victims of damaging
human experimentation by the armed forces are suffering “incident
to service” and are Feres-barred,111 as are obedient soldiers who
suffer genetic damage because they were deliberately exposed to
dangerous doses of radioactivity.112
Claims by service members’ families. A survivor’s claim for
wrongful death of a service member killed incident to service is
treated as a derivative claim and stands on no better ground than
a direct claim by the service member had she lived; Feres itself was
a wrongful death claim. Similarly, a spouse’s loss of consortium
claim based upon a service member’s injury incident to service is
barred along with the main claim for the injury itself.113 The same
is true if the claim is for emotional injury to the spouse; that, too,
has its genesis in the service-connected injury.114 On the other
hand, family members may conceivably have independent claims of
their own. When dependents of service members are directly
injured, as by negligent medical treatment, Feres does not bar their
claims and is often not even mentioned in the decisions.115
However, a number of cases have held that if the service member
was exposed to some toxin incident to service, the family member
who suffers injury through genetic damage to the parent has no
claim, often on the argument that military discipline would be
disrupted even though the claim does not depend upon injury to
the service member.116
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§ 22.5 Other Statutory Exceptions to FTCA

Liability
Specific conduct excepted. Besides the very broad discretionary
immunity, the statute creates a number of very specific exceptions
to governmental liability. For example, no claim will be recognized
for negligent transmission or loss of mail,117 tax assessments or
collections,118 or claims arising in foreign countries.119 A number of
others are in the statutory list.
Specific torts excepted. One group of exceptions deals with
specific torts. Subject to some qualification, § 2680(h) exempts the
government from liability if the claim “arises out of” (1) assault, (2)
battery, (3) false imprisonment and false arrest, (4) malicious
prosecution, (5) abuse of process, (6) libel and slander, (7)
misrepresentation and deceit,120 and (8) interference with contract
rights.121
Scope of the exceptions. Sometimes writers refer to this
statutory list as creating an intentional tort exception, but that is
inaccurate, for not all intentional torts are named in the list and
some torts named are not necessarily based upon intent. The list
notably omits such traditional intentional torts as trespass to
land122 and conversion of personal property,123 and such newer
torts as intentional infliction of emotional distress124 and privacy
invasion.125 Consequently, the statute does not preclude suit for
those torts unless the conduct relied upon to establish them
amounts to one of the excepted torts or falls within another area of
retained immunity. For example, a plaintiff may recover for
intentional infliction of emotional distress accomplished by way of
sexual harassment if the harassment was carried out without a
bodily touching that would count as a battery. But the battery
exception will bar her claim if it is based on a bodily touching.126 In
the same way, if the facts the plaintiff must rely upon amount to a
false imprisonment, the plaintiff is barred, even though the facts
also show an invasion of privacy or an intentional infliction of
emotional harm.127
Exceptions to the exceptions. The main statutory qualification is
that, after all, the government is liable for assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution where the tort is committed by investigative or law
563
enforcement officers of the United States. So a battery, say,

would be actionable against the government if it were committed
by an officer who is “empowered by law to execute searches, to
seize evidence, or to make arrests for violations of Federal law.”128
Separate statutes have also provided that military and VA medical
batteries—operations without consent—remain actionable.129 A
battery by other federal employees, on the other hand, is not
ordinarily actionable.
Negligently permitting battery by non-employees. In one group of
cases, the plaintiff is injured by a battery that the government
could have prevented by the exercise of reasonable care. For
instance, prison authorities may be negligent in failing to prevent a
group of prisoners from beating another prisoner. The Supreme
Court has recognized liability in such a case.130 Because the
United States would not be liable for batteries of non-employees (or
off-duty employees), the exception applies only to batteries
committed by employees of the government acting within the scope
of employment.131 Batteries by prisoners or off-duty service
members are not within the exception. So if the plaintiff can prove
negligence of the government in permitting or risking a battery by
non-employees or off-duty employees, the battery exception is
irrelevant and the claim may proceed as a simple negligence claim.
Negligently permitting battery by federal employees. That leaves
a major group of cases in which the government negligently
permits a battery by a federal employee.132 For instance, the
government may negligently hire or supervise a dangerous child
molester or a violent worker. If the worker molests children or
attacks citizens with acid, the plaintiff’s claim is based on the
government’s negligence. Nevertheless, the plaintiff must
ultimately prove the battery in order to show damages. For this
reason, some courts have held that the battery exception applies to
bar the plaintiff’s claims.133 However, the Ninth Circuit has held
that the battery immunity does not relieve the government of
liability when its negligent supervision is a proximate cause of a
battery.134 And, more broadly, the immunity will fail if the
government assumed a duty to the plaintiff prior to the battery and
independent of it, while the immunity will remain if the
government’s negligence arises only at the time of and because of
the battery.135
3. Immunities and Liabilities of State and

Local Entities
Traditional immunity. Subject to limits imposed by the federal
constitution, the American states are sovereigns. The states and
their departments and agencies are
564
constitutionally obliged to pay for property taken for public

purposes.136 Otherwise, the state public entities can claim the
traditional sovereign immunity from suit. States also enjoy a kind
of jurisdictional immunity, because under the Eleventh
Amendment to the United States Constitution137 they ordinarily
cannot be sued for damages in federal court.138 The immunity of
the states and their agencies as sovereigns differs from the
immunities enjoyed by state officers and by purely local
governments.
Abolition of blanket immunity. Almost all states have now
enacted tort claims statutes waiving the blanket common law
immunity of the state and its agencies. Other statutes may affect
immunities in particular cases. As a matter of structure, about
thirty states abolish the tort immunity generally, but retain it in
specified circumstances.139 A second group works in reverse,
retaining the immunity generally, but abolishing it for a list of
cases in which liability is permitted.140 In several states, a tort
claim against the state must be presented to an administrative
body instead of to a court.141 Some states set up a separate court of
claims for hearing tort claims against the state.142 A very small
number of states appear to retain a very broad immunity.143
Cases for liability. States in the second group list specific
instances in which liability is permitted.144 They usually include
motor vehicle accidents145 and injuries on negligently maintained
state property, dangerous roads and highways,146 but the list may
include other instances, such as medical malpractice in state
schools or hospitals.147
565
Cases for no liability—exceptions to the waiver of immunity. In

the largest group of states, the state waives immunity generally,
but retains it or otherwise excludes liability in a number of
specified instances. Many of these statutes are similar to the FTCA
in providing for liability like that of a private person in similar
circumstances,148 then carving out an immunity for discretionary
decisions149 together with a number of rather specific exclusions
from liability. Some statutes are phrased to waive immunity only
for cases of personal injury, property damage, or death, thus
impliedly retaining the immunity for economic and dignitary torts
that do not fall in one of these categories.150 Strict liability is
routinely excluded.151
Not infrequently, the pattern of retained immunity or excluded
liability is much like that in the FTCA. For instance, statutes may
exclude liability for intentional torts like assault, battery, and false
imprisonment152 and for claims resulting from tax assessment or
collection.153 No summary can capture all the exceptions, some of
which are quite narrow. Several states, for example, exempt the
state from liability for certain injuries resulting from snow and ice
conditions.154 Some specific immunities may be waived to the
extent that the public entity is covered by liability insurance.155
Substantial areas of immunity remain even under the most
liberal statutes. But even that is not the whole picture. In some
states, the plaintiff whose claim against the state is defeated by
immunity may nevertheless be able to recover against the tortious
officer. The state may then indirectly pay by indemnifying the
officer and providing for the costs of his defense.156
Procedural and remedial limitations. Statutes almost always
impose some special procedural rules for claims against the state,
for example, a requirement of notice before suit. Many states cap
recovery for compensatory damages157 and punitive damages are
denied altogether.158
§ 22.7 Local Public-Entity Immunity and Its
Waiver
Common-law rule. Municipalities are corporations chartered by
the state, not sovereigns. Nevertheless, a peculiar history159 led
courts to recognize a distinct
566
municipal immunity as a matter of common law. While many

states have adopted statutes that modify the common law
approach, a number have retained it. As a matter of general
common law, municipalities are immune from tort liability, except
for (1) torts committed in a proprietary rather than governmental
capacity, and (2) nuisance committed by the municipality. Liability
may also extend to cases of (3) negligently maintained municipal
property160 and (4) negligently maintained roads, streets, and
sewers.161
Governmental vs. proprietary. Courts have conceived of the
municipal government as operating in several different capacities.
If it causes harm while acting in a purely governmental capacity,
say in police activities,162 it enjoys the immunity.163 But many
courts say that the municipality has no immunity for its torts when
it operates in a corporate or proprietary capacity.164 For example, a
municipality will be subject to liability for torts inflicted in the
operation of a municipal electric or water utility.165
Courts do not agree on a test for determining whether an
activity is proprietary. Courts have variously held that an activity
is or tends to be proprietary (1) if it is carried on for profit,166 (2) if
a fee is paid,167 (3) if the activity relates to public service, whether
or not a fee is paid,168 (4) if the city is under no duty to carry it
out,169 or (5) if the activity is historically one carried out by private
enterprise.170
Application of governmental-proprietary test. The governmental-
proprietary distinction can produce some surprising case outcomes.
A city’s operation of an automotive repair garage for its police
vehicles has been considered proprietary, for
567
example.171 On the other hand, some courts treat public parks

or swimming pools as proprietary172 while others do not.173
Statutory structures. Many legislatures have replaced the
blanket immunity with a list of very specific immunities174 or with
a list of instances in which public entities may be subjected to tort
rules. As with sovereign immunity of the state itself, some
legislatures have reversed this approach, asserting that the local
entity is immune except so far as the statute creates a specific
exception.175 Immunity may be waived to the extent that the
public entity is covered by liability insurance.176 Nevertheless,
extensive protection may remain by way of affirmative defenses or
otherwise. As a matter of legislature structure, some states subject
all public entities to more or less the same rules of immunity and
liability, so that one statute applies both to states and other public
entities such as municipal corporations. Other states treat local
public entities under separate statutes.177
Another structural difference in approaches can be seen in the
way public officers and employees are treated. In some instances,
the immunity of the employee and the municipality are
coextensive, so that if the employee is immune, the municipality is
likewise protected.178 In others, the employee may be exposed to
liability when the municipality is not.179 In either case, the
employee who is held liable to the plaintiff may have a right of
indemnity against the municipality.180 The effect of the indemnity
is that whether the municipality is formally immune or not, it
ultimately pays and thus becomes liable through its obligation to
indemnify the individual employee.
Finally, some statutes create an entirely new scheme of liability
and immunity, while others adopt one or more of the common law
rules, such as the rule based upon the governmental-proprietary
distinction, for particular situations.181 The recovery of damages
and prejudgment interest is limited in many states, and punitive
damages barred altogether. Under any of these systems, lawyers
must consult the general statutory provisions for immunity and
liability and frequently must also find narrowly drawn statutes
providing immunities for very particular activities, such as the
system for 911 emergency calls182 or the operation of airports.183
568
§ 22.8 Discretionary Immunity of State and Local

Entities
Policy basis. Perhaps the chief immunity or defense remaining
after statutory restructuring of state- and local-entity liability is
the immunity for decisions of discretion or basic policy.184 Judicial
and legislative decisions are easily included in this category, but so
are some executive-branch decisions and action. As explained in
connection with the FTCA, the idea is that social and economic
policy is to be fixed by legislative and executive branches of the
government, not the judiciary, and that the judicial branch must
not intrude on those basic decisions.185 In some instances, this
same policy is advanced by the separate rule called the public duty
doctrine.186 The policy dictates that public entities must not be
held liable for passing or failing to pass legislation, even if that
legislation is wise and would have avoided injury to the plaintiff.187
Judicial decisions and some executive branch decisions, such as
decisions about the level of security for juvenile detainees,188 are
sufficiently analogous to come within the same immunity. But
courts sometimes go beyond this by characterizing rather minor
and routine decisions of a governmental agency as decisions of
social, economic and political policy, and thus barring trial to
discover whether the agency’s acts were negligent.189
Limits. The policy behind the discretionary immunity is sound,
but it has limits. To hold a public entity liable for a negligent
course of conduct in the administration of programs by the
executive branch is not invariably an inappropriate intrusion.
Liability for negligent operation of a city bus or even of a police
department does not mean that the negligent conduct is forbidden.
Liability only means that if the entity chooses a dangerous course
of conduct, it should pay its way, as private businesses must do.
Besides that, since costs of many governmental decisions and
actions represent a real loss or expense to someone in the polity—
either the individual victim or the public entity—judges must not
defer too readily to misconduct in another branch of government.
Where governmental function is to exercise care. Application of
the discretionary immunity is largely a matter of policy
perceptions. The immunity is defined by the courts’ “pragmatic
assessment” of the need for it.190 Perhaps the immunity is not
needed when the entity undertakes activities that can be judged
under ordinary standards of care. The function of a public entity’s
officer is frequently to use due care. A child-care worker exercises
discretion at almost every moment, but his function is ultimately to
exercise due care for the children; thus judges do not intrude upon
the executive branch if they hold him to the care his function
requires.191 A department of transportation may be in charge of
highway safety and appropriately held liable if it negligently fails
to maintain reasonably safe highway conditions.192 A therapist
assuredly exercises professional
569
judgment and in that sense exercises discretion, but his

function as a doctor provided by a public entity is to professionally
treat patients. If the professional standard of care constrains his
choice of treatment or diagnosis, there is no logical occasion to
immunize his unprofessional decisions.193 Essentially the same
idea is expressed by saying that the discretionary immunity only
applies when a high degree of discretion is required and when it is
applied, not merely to routine matters but to “basic policy
decisions.”194
Conscious-choice rule. Be that as it may, courts’ perceptions of
the need for immunity differ by shades, so the line between
immunity and responsibility is one of the law’s ghostlier
demarcations. Some state cases refuse to grant the immunity
unless the governmental entity made a conscious choice of
conduct,195 For example, under the conscious-choice rule, if the
public entity fails to erect a guardrail on public property where
ordinary care would require one, the entity may be liable to an
injured person under ordinary negligence rules unless it chose to
omit the rail for some reason of policy.196 The alternative would be
to follow the federal approach,197 immunizing the public entity if
there was room for policy choice, even if the entity did not actually
make a choice. Under this approach, the entity will be immune if
the court can imagine policy choices that could have been made,
even if the entity did not act for any of the imagined policy reasons
or make any conscious choice at all.198
Planning vs. operational. Some states also utilize the distinction
between planning and operational decisions, limiting the immunity
to cases of “planning” and excluding it for actual operations or
execution of decisions.199 Similarly, state cases have often drawn a
distinction between discretionary, legislative, or judicial acts on the
one hand, and ministerial acts on the other, with immunity for the
former only.200 These distinctions are phrased as if they were tools
used to discover the answer to immunity questions. In fact,
however, they are usually labels applied after the decision on
immunity is reached, so they have not been immensely helpful.
Even if no immunity protects a public entity, the entity may
escape liability because it owes no duty to the plaintiff. For
example, if a fire safety ordinance requires smoke alarms in all
new housing but does not require the city to inspect for compliance,
570
ordinary tort rules place no responsibility upon the public

entity.201 Most courts go much further by holding that when a
statute imposes upon a public entity a duty to the public at large,
and not a duty to a particular class of individuals, the duty is not
enforceable in tort.202 Under this view, as the saying is, a duty to
all is a duty to none.
Public duty rule and nonfeasance. In the classic case for
invoking the public duty doctrine, the duty is imposed by a
statute203 that requires the defendant to act affirmatively, and the
defendant’s wrongdoing is a failure to take positive action for the
protection of the plaintiff. If the entity undertakes to act or enters
into action for the plaintiff’s protection, liability may be warranted
for breach of common law duties rather than the statute. As so
described, the public duty rule could apply to any defendant whose
only wrong is noncompliance with a statutory directive that
requires positive action. In fact, however, many courts treat the
public duty doctrine as a rule of public-entity immunity and not as
a rule about the existence of a duty.204
Examples. Under the public duty rule a police officer is free to
ignore dangerous and illegal conduct committed in his presence;
victims injured by such conduct have no claim for his
nonfeasance.205 City inspectors can ignore inspection and such
matters as building codes and fire safety standards.206 A county
may be under a statutory duty to maintain a 911 system
adequately, but the duty may be seen as running to the public at
large, not to any individual citizen, thus barring a claim even for
wanton conduct.207 The public duty doctrine may be invoked to bar
relief for police failure to protect citizens even when no statute is
involved and sometimes even when the police seem to have
committed affirmative acts of negligence.208
Scope; special duty created by statute. The public duty doctrine
has no application when the court concludes that a statute or court
order has created a special tort duty or specific obligation to a
particular class of persons rather than to the public at large.209 A
child who is injured as a result of a governmental agency’s failure
to enforce a court’s protective order,210 or its breach of a statutory
duty to investigate child abuse,211 may be
571
permitted to present evidence of negligence and to recover if

negligence and causation is proven, provided the court thinks the
statute sufficiently narrows the duty to a particular class.212 But
whether a statutory duty is public or special is largely in the eye of
the beholder. Some courts permit the agency charged with
protecting children to ignore inspection requirements and leave the
injured child without a claim.213 Most courts have concluded that a
child-abuse reporting statute does not create a private right of
action,214 often on a public duty rationale when the defendant is a
public entity or employee.215 And even if the statute creates a
special duty to a narrow class, no action will lie if the legislative
scheme envisions only administrative or regulatory enforcement
that excludes tort liability.216
Exceptions and qualifications. Some courts have said that the
public duty doctrine will not apply to protect the entity when it is
guilty of egregious misconduct,217 intentional wrongdoing, malice,
or recklessness.218 More significantly, the public duty doctrine
eliminates the tort claim based upon a statutory duty but it does
not necessarily forbid an action based upon common law duties.219
Triggers of duty. Although some states impose special
conditions limiting the public entity’s duty of care,220 apart from
immunities, the public entity ordinarily has a duty to take
reasonable affirmative steps to protect the plaintiff, in any of the
following instances: (1) the public entity undertakes to provide
assistance by promise or conduct which induces the plaintiff to rely
upon action by the public entity;221 (2) the public entity
572
stands in a special relationship either to the plaintiff or to a

person causing harm;222 or (3) the public entity is guilty of
negligent action rather than inaction.223
911 operators. A city whose dispatcher for the 911 emergency
call system may be regarded as acting affirmatively, or as
undertaking a duty not imposed upon it by statute, or as entering
into a special relationship with the victim, and on any of those
grounds may be held responsible for negligence even though no
statute by its terms imposes a special duty to that victim.224
Rejection of the doctrine. A number of contemporary courts have
broadly rejected the public duty doctrine.225 Some have restricted
it to special cases. For example, some states use the public duty
doctrine only to exclude liability for failure of police protection;226
others use the term “public duty” to describe discretionary
immunity.227 Where the common-law public duty doctrine is
rejected or limited by judicial decision, statutes sometimes add
immunities in particular cases to get results like those obtained
under the public duty rule. For instance, the statute may exclude
liability for failure to make an arrest.228 Even without such
statutes, rejection of the doctrine does not automatically result in
liability. The plaintiff must establish a duty under ordinary tort
principles, and then prove all other elements of a negligence claim,
as in any other case.
The logic of the orthodox public duty rule is formally different
from the logic of immunity. It is that the statute creates no duty to
act and hence, regardless of immunity, the public entity cannot be
liable.229 Which statutes create a tort duty and which do not?
Courts talk as if the answer lay in statutory construction. If the
statutory duty is narrowed to protect a particular class of persons,
it may create a tort duty, otherwise
573
not.230 Little statutory construction is possible in most cases

and courts sometimes implicitly admit that it is less a matter of
construction than a matter of judicial policy. They have thus
suggested numerous reasons to exempt public entities from the
obligations apparently imposed by statutes.
One argument is essentially the same one presented for the
discretionary immunity. Expressed in various ways, the core
proposition is that courts should leave allocation of resources to the
legislature or to the executive.231 The argument is persuasive in
some cases, but not all cases involve allocation of substantial
resources. Some involve simply bad mistakes or horrendous
negligence. The officer who simply watches a drunk driver go
through dangerous antics for a substantial period without
attempting to deal with the situation is not allocating resources; he
is behaving very negligently indeed. The resources argument is
puzzling, too, when compared to the same argument on the issue of
discretionary immunity. A statutory directive to act in a particular
way—to investigate reports of child abuse, for example—seems to
remove all discretion. Yet the public duty doctrine is intended to
foster and protect discretion in the very case where statutes seem
to have removed it.
Another argument seems to be predicated upon a deep distrust
of the judicial system itself. This argument implicitly asserts that
courts cannot formulate and administer an appropriate rule about
the scope of liability. An officer should have no duty to arrest a
drunk driver he encounters, one court said, because if he tries “to
avoid liability by removing from the road all persons who pose any
potential hazard, he may find himself liable in many instances for
false arrest.”232 It is hard to believe that courts would administer
the reasonable care rule of negligence law to require the arrest of
every hazardous driver on the road in the first place. If courts did
such an unprecedented thing, they could hardly impose liability for
doing what they required.
Although the arguments do not seem broad enough to support a
public duty rule, they rightly point to particular instances in which
liability is inappropriate. For instance, if an officer must choose
when to arrest a dangerous person, appropriate caution may
counsel delay. If so, he cannot be found negligent. In the same way,
a busy precinct may have no officers to spare for the protection of
every person within its jurisdiction. If not, it cannot be found
negligent. Ordinary negligence rules appropriately exclude liability
in such cases, but they leave open the possibility of liability when
police officers unprofessionally shirk their duty and when
administrative bumbling sends officers to the wrong place. The
public duty doctrine, in contrast, excludes liability in all cases in
which agencies fail to enforce or obey a statutory directive that is
deemed to create a duty to the public at large.
574
§ 22.10 Excluding Liability for Police and Fire

Protection
The usual rule is that public entities are free of all liability for
failure to provide police or fire protection, even if that failure was
negligent. Similarly, statutes and judicial decisions usually exclude
liability for failure to arrest a dangerous person who later harms or
kills others.233 However, unless statutes dictate otherwise, liability
may be imposed for failure to protect a specific person if the police
create a special relationship with that person by undertaking
protection and then carrying it out negligently.
For example, if police attempt to answer a 911 call but
negligently go to the wrong address, liability may be imposed
because the police have themselves allocated resources.234
Similarly, unless a statute specifically provides otherwise, courts
have imposed liability when a fire department negligently uses
dangerous or inadequate methods of fighting a fire.235 But when
the city does nothing to address the particular crime or fire, no
liability is the usual rule. The city is not liable if a police officer
does nothing at all upon learning that a woman has been
kidnapped, even though the officer could have saved her by making
a phone call.236 A city is not liable when its police fail to arrest a
man known to be dangerous, even after a warrant had issued.237
Nor is it liable when it fails to respond to a fire call,238 fails to
enforce fire-safety regulations,239 or fails to provide adequate
water,240 although there are a few decisions to the contrary.241
Even when a special relationship is established by police
investigation and promises of protection, liability is sometimes
rejected.242 Some authority has gone far beyond these immunities
for failure to act by shielding the local public entity even for
affirmative acts of negligence in operating a police department.243
Negligent police chases. One special category of police activity is
the high-speed chase that ends in injury or death, sometimes
because the person pursued runs down a bystander, sometimes
because the police driver does so, and sometimes because the
pursued person is himself killed or injured. These cases are not like
those in which the police simply fail to act at all. Rather, they
involve affirmatively dangerous conduct that creates risks to the
plaintiff. So it is possible to resolve such cases under ordinary
negligence rules, holding the public entity subject to liability when
the dangers of the chase outweigh the advantages of capturing a
suspect, as where as many as twenty police
575
vehicles pursued a traffic violator for 25 miles through densely

populated urban areas, with resulting death to bystanders.244 Such
decisions, like many other negligence cases, call for a balancing of
risks and utilities, so if the pursuer is a dangerous criminal and
the risks to innocent people are low, the chase may not be
negligent at all.245 A variation on this approach might reduce the
standard of care for emergency vehicles246 or might limit the care
owed to the person being pursued while maintaining the
negligence standard for bystanders.247
Some courts, however, tend to think that balancing risks and
utilities requires an immunity rather than a simple negligence
analysis. Thus some courts resolve the high-speed chase cases on
immunity grounds because risks must be weighed.248 The result of
the immunity approach is that it eliminates the capacity to
distinguish good cases for liability from bad ones; all chase claims
are treated substantially the same. So pursuit of a known violent
criminal and pursuit of a traffic violator can equally call for intense
risks to the public. Some states extend this immunity to negligence
use of firearms by police.249
A third approach demands that the public entity itself prescribe
a balancing of risks and utilities in its policies for police officers. If
the entity provides an adequate policy, then it is immune. If not,
liability is imposed for negligence in failing to prescribe the
policy.250
§ 22.11 Excluding Liability for Release of
Dangerous Persons
Courts tend to deny recovery by victims of dangerous prisoners,
mental patients, and others who have been negligently released
from custody251 or who have escaped. Although public entities owe
a duty of reasonable care to those in custody, and also a duty of
reasonable care to control dangerous persons in custody,252 public
entities often avoid responsibility for their negligence in
authorizing parole or permitting escape,253 either because statutes
specifically say so,254 because courts invoke discretionary
576
immunity,255 or because they apply the public duty rule256 or

some other immunity.257 Sometimes courts simply say the state
owed no duty to foster safety for its citizens by warning or by
supervision of a parolee.258 But the tendency is not universal; a few
cases have imposed responsibility upon public entities for
negligently permitting a prisoner’s escape259 or for the release of
dangerous persons.260 Some states impose liability if the public
employee was willful or wanton in permitting escape,261 and a few
statutes contemplate liability for gross negligence in releasing a
dangerous person.262 The decision to release may be distinguished
from negligent supervision by a parole officer,263 and from a failure
to warn persons endangered by the release264 Even when a state-
employed therapist did not have physical custody of a dangerous
person but knew of his threats to a specific individual, the state
could be liable if he unreasonably failed either to seek commitment
or to provide a warning to the potential victim.265 Some courts
impose a duty to warn whenever a reasonable person would
provide a warning.266 Perhaps the question ought to be, not
whether the victim is identifiable, but whether an effective
warning could reasonably have been given to someone who would
have prevented the harm.267
B. INDIVIDUAL GOVERNMENT AGENTS
Employee immunity and indemnity. Employees and officers of
public entities are often immune from liability for harms they
cause in the scope of their public
577
employment.268 Although civil rights cases are discussed in

separate sections,269 they, too, allow for immunities. The
supposition is that immunity is required in at least some cases to
assure that the ardor of public officials for performing their tasks
will not be dampened.270 Courts usually assume that official ardor
is desirable. They also assume it can be dampened unduly. The
first point is a question of values; the second is a question of data.
Neither point is demonstrated in most of the case discussions. The
Supreme Court has also suggested that unfounded lawsuits entail
social costs, including expenses of litigation and diversion of official
energies.271 That argument, however, seems wide of the mark,
since the result of immunity is to avoid the trial that could tell us
whether the suit was unfounded or not. Not surprisingly in this
state of affairs, exact agreement on the application of immunities is
not to be found.
The justifications advanced for employee immunity show that it
is distinct from the immunity of public entities. In fact, some
plaintiffs who would be defeated by the entity’s immunity might
prevail in a suit against an individual officer. In some states,
however, statutes provide that the public entity’s liability depends
upon the liability of the employee whose acts caused harm. In
those states, the plaintiff can recover against both the officer and
the entity or against neither.272 In still others, the officer has a
very broad immunity and the plaintiff’s claim is only a non-jury
claim against the state.273 By statute in some states, the public
entity must or may defend the employee who is sued for acts
committed within the scope of his employment. Likewise, the
public entity may be permitted or required to indemnify the
employee if he is held liable.274 When that procedure is applied, it
effectively circumvents the entity’s immunity and also absolves the
employee of any personal responsibility, much as if the employee
were covered by liability insurance. From the public employee’s
point of view, immunity and a right or likelihood of indemnity are
both protective devices. From the victim’s point of view, any
immunity will operate to bar the claim, while existence of
indemnity for the employee is often desirable as an indirect
contribution to payment of the claim. An approach that achieves
similar results is to grant a very broad immunity to the public
employee and permit the plaintiff to assert against the public
entity whatever claims would otherwise have been available
against the employee.275
Judicial and quasi-judicial functions. Judges and legislators
are usually said to be “absolutely privileged” or absolutely immune
from suit based on acts within the scope of
578
their judicial or legislative duties. The term “absolute” reflects

the rule that immunity will not be lost even if the defendant acted
maliciously, in bad faith, or recklessly.276 A judge acting within his
subject matter jurisdiction, for example, is not liable to a litigant
for a malicious ruling.277 A judge retains absolute immunity from
civil suit even where the conduct is criminal, such as accepting
bribes,278 although the judge may be subject to criminal liability
just as any other citizen would be.279
The immunity embraces all those appropriately engaged in the
task. It is most obviously applied, not to personal injury suits, but
to defamation claims and other dignitary and economic-harm
claims.280 So witnesses and lawyers as well as judges are immune
from suit based on their words in court.281 Prosecutors share the
absolute judicial immunity from suit based on prosecutorial
decisions within the scope of their jurisdiction and traditional
powers,282 and so do experts appointed by the judge to render
quasi-judicial evaluations.283 Non-judicial work of the same
persons, however, is another matter.284 In hiring and discharging
employees, for example, a judge is performing executive rather
than judicial functions and in that case loses the absolute
privilege.285 State social workers making recommendations to the
court furnish another example. These state employee may enjoy
absolute judicial or quasi-judicial immunity in making
recommendations to the court for placement of a child in foster
care, but not in their later management of foster care for the
child.286
Legislative-branch officials. Legislators, too, are immune from
suit based upon their official votes and generally from suits based
upon speech in the legislature and on related matters.287 Some
states extend the absolute immunity to city councils288 and other
similar rulemaking bodies.289
Executive officers and employees. Public employees of the
executive branch—everyone who is not in the legislative or judicial
branches—were originally liable for
579
their torts290 and certainly for those committed in excess of

their authority. In the twentieth century, state courts developed
immunities for officers and employees of public entities. One
solution holds state officers liable only for gross negligence or for
specified misconduct.291 A little authority even provides an
absolute immunity to higher-level state officers, at least as to
defamation292 or as to matters in which it is especially important
for high-level officers to feel unhampered by possible legal
actions.293 One state statutory technique is like that now employed
for suits against federal employees;294 the employee is simply
immune to claims for negligence committed within the scope of his
employment. In such states, the suit must be against the public
entity, to stand or fall as the rules for public entities dictate.295
More generally, officers and employees enjoy qualified
immunity for discretionary acts, but not for ministerial acts.296
Ministerial acts are those acts the officer has no discretion to
avoid.297 Some courts apply the discretionary-ministerial rule in a
roundabout way by classifying public servants as either officers or
employees, and, at least prima facie, attributing discretion to
officers and ministerial duties to employees, with the result that
officers are immune and employees are not.298 As with the
discretionary immunity for state and federal public entities, some
courts may treat almost any choice as “discretionary,” while others
may emphasize that only policy choices are protected.299 The
discretionary immunity is qualified or conditional because it is
usually lost if the officer is guilty of bad faith, malice, corruption,
wanton misconduct or the like.300
Whether an act is treated as ministerial or discretionary
probably depends in part on the how the court feels about the risks
of error in the judicial decision. Since application of immunity
tends to foreclose trial on the merits, it risks excluding some claims
that are meritorious and would be allowed if judges had a fully
developed record of the facts. Judicial preference may be either to
minimize the risk of error that may harm officials or to minimize
the risk of error that may harm citizens. If it is the latter,
580
the immunity will be applied more narrowly and more acts

recognized as ministerial. The Restatement has suggested various
factors that judges are likely to consider in characterizing the
actions of officials as ministerial or discretionary. These include
the nature of the injury claimed, the availability of alternative
remedies, the ability of courts to judge fault without unduly
invading the executive officer’s function, and the importance of
protecting particular kinds of official acts.301 Even if the officer’s
act is ministerial, however, he may be entitled to some specific
statutory immunity.302
Federal officers and employees303 often enjoy substantial
immunity from civil lawsuits. Sometimes this immunity is
provided by statute, and at other times by the Constitution itself.
Employees. The Federal Tort Claims Act did not originally
immunize all federal employees. Congress has now provided that
the claim against the government authorized by the FTCA is the
exclusive remedy for anyone injured by a federal employee.304
Except for constitutional and specific statutory violations by the
employee,305 he is granted complete immunity for torts committed
within the scope of his employment.306 If suit is brought against a
federal employee, the Attorney General may certify that he was
acting within the scope of his employment. Unless the Attorney
General’s certification is overturned, the court must substitute the
government as the sole defendant and dismiss the claim against
the individual government employee.307
Where the action against the federal employee has been filed in
state court, the Attorney General’s certification requires removal to
federal court and the substitution of the United States as the sole
defendant. At that point the federal court has exclusive competence
to adjudicate the case and may not remand the suit to state court
even if the federal court believes the Attorney General’s
certification was unwarranted, absent a specific determination that
the employee in fact engaged in conduct beyond the scope of
581
his employment.308 Under this provision, the plaintiff may have

no remedy even for an admitted wrong.309
Legislative officers and employees. An explicit Constitutional
provision, the Speech and Debate Clause, grants members of
Congress and Senators absolute immunity from civil suits based on
their statements made within either House of Congress.310 The
Court has extended that beyond the literal walls of Congress, but
the privilege is narrowly construed and “does not extend beyond
what is necessary to preserve the integrity of the legislative
process.”311 When it does apply, it protects not only members of
Congress themselves, but also their staff members, consultants
and investigators who have assisted in the legislative process.312
The constitutional immunity does not extend, however, to the
republication of defamatory statements even if they were originally
made within the halls of Congress.313 However, even if the Speech
and Debate Clause does not apply, a member of Congress may be
immune from a suit for defamation on the ground that his
statements were made in the course of his official duties under the
Westfall Act.314
Executive officers. The President of the United States enjoys
absolute immunity from damages liability for his official acts,315
although such immunity does not extend to liability for acts
allegedly done before he took office.316 Other executive-branch
officials may be sued directly under the Constitution in what is
called a Bivens action, but they enjoy a qualified privilege for those
claims.317
Judicial officers and those working within the judicial system.
Federal judges are absolutely immune from civil lawsuits based on
their statements or actions made in connection with their judicial
function.318 Federal prosecutors are also absolutely immune from
suits that are based on words and conduct undertaken within the
scope of their duties as part of the judicial function.319 Federal
public defenders are not absolutely immune from civil suits,
however,320 unlike some of their state counterparts.321
582
C. CIVIL RIGHTS CLAIMS

Context. Civil rights violations are torts.322 They have
generated an important specialty,323 in which the courts often look
to common law tort rules as models.324 Civil rights litigation covers
a broad spectrum. Much of it deals with wrongful acts such as
discrimination that does not directly produce physical harms. For
instance, state officials might remove students from a religious
boarding school, violating the religious-freedom rights of the
students and their parents.325 Or officials might interfere with a
family’s custody of a child without due process.326 A large number
of civil rights cases involve physical harms, producing a substantial
and growing body of case law.
Section 1983. The most prominent single federal civil rights
statute is 42 U.S.C.A. § 1983.327 Section 1983 authorizes tort
claims for deprivation of federal rights under color of state law.328
The defendants are usually state or local officials or local
governments, although the victim may also assert a claim against
a private individual who uses state law to violate federal rights.
(Against federal officials, the victim can claim directly under the
constitution for violation of constitutional rights.)329 The prevailing
party in a § 1983 suit is entitled to recover reasonable attorney’s
fees.330 Suit may be brought in either federal or state court.331
Major constitutional bases for § 1983 claims. Section 1983 “ ‘is
not itself a source of substantive rights,’ but merely provides ‘a
method for vindicating federal rights
583
elsewhere conferred.’ ”332 Claims may arise out of federal rights

created by case law,333 by statute,334 or by any provision of the
Constitution designed to protect the plaintiff against the harm
inflicted. Most § 1983 suits, however, are generated from one of
three constitutional provisions. These are: (1) the Fourteenth
Amendment’s guarantees of substantive and procedural due
process of law and equal protection of the laws;335 (2) the Fourth
Amendment’s provision against unreasonable searches and
seizures,336 and (3) the Eighth Amendment’s provisions against
“cruel and unusual punishments.”337
Common-law tort claims compared to § 1983 claims. Many
constitutional torts redressed under § 1983 would also qualify as a
prima facie common law tort. Trespassory torts such as battery,338
false imprisonment,339 or assault340 are examples. Certainly some
of the misconduct condemned as a civil rights violation is conduct
that would constitute a property tort such as conversion341 or
trespass.342 But no common-law tort analogy is required; in all §
1983 cases, the substantive basis for the claim must be found in
the words and history of the federal law that forms the basis for
the suit. In Fourteenth Amendment substantive due process cases,
the test is whether the defendant’s intentional343 official conduct
shocks the conscience of the court.344 Fourth Amendment
violations are objectively judged by a reasonableness standard;345
neither the officer’s malice nor his good faith is important if his
objective conduct was reasonable, and
584
neither is important if he lacks probable cause for the arrest or

justification for an investigatory stop.346
The operative tests for constitutional violations in Eighth
Amendment cases depend on the plaintiff’s allegations. Examples
of cruel and unusual punishment that count as constitutional torts
include (1) cases of excessive force inflicted upon prisoners by
prison guards, (2) cases of excessively harsh conditions of
confinement, and (3) cases in which necessary medical attention is
denied. In excessive-force or harsh-conditions cases, the
defendant’s conduct must be objectively as well as subjectively
wrong,347 and must violate contemporary standards of decency.348
Further, in both harsh-conditions and medical-deprivation cases,
the official is liable only if he is guilty of “deliberate
indifference”349 to the prisoner’s danger or medical needs. In this
context,350 “deliberate indifference” is an explicitly subjective
standard,351 but an objective component appears in both settings.
In the harsh-conditions cases, the official has not violated the
Eighth Amendment if he provides reasonable protection against
the risk, even if it turns out that the protection provided was
insufficient and the plaintiff was harmed.352 Essentially the same
idea is re-worded for the medical-deprivation cases: the deprivation
must be serious and it must be a denial of “the minimal civilized
measures of life’s necessities.” The Court appears to regard these
formulations as addressing an objectively judged risk.353 If this is
correct, then the plaintiff apparently would be required to show
both an objectively serious risk and a subjective indifference by the
defendants.
The qualified immunity. While state-law immunities will not
protect a defendant in a federal civil rights claim,354 many
individual defendants can assert a qualified federal immunity from
suit in a § 1983 action.355 This is a powerful immunity, and
through its application many individual state and local officials
escape liability.
§ 22.15 Section 1983 Claims Against State and
Local Officials
Potential for liability under § 1983. The plaintiff may sue
officers in their individual or personal capacity356 for actions under
color of state law,357 in which case the officer is potentially
personally liable for his own unconstitutional actions and for his
585
unconstitutional failure to supervise or control subordinates.358

Even a failure to act may violate rights and subject a defendant to
§ 1983 liability.359
Absolute immunity. The common-law absolute immunity for
legislative and judicial acts cases carries over to § 1983 claims as
well.360 The President of the United States is likewise absolutely
immune even to suits for constitutional violations.361
The qualified immunity. Increasingly, the outcome of § 1983
cases against individual state and local officials depends on the
existence of a qualified immunity. The usual analysis of common
law tort claims first considers the prima facie case—whether the
defendant has a duty and whether it was violated—and then
considers affirmative defenses. With civil rights torts, however, the
case may begin with the assertion by the defendant of a qualified
immunity. When a defendant raises this immunity, often at the
pleading stage, the plaintiff bears the heavy burden of proving362
that (1) the defendant violated a federal right, and (2) that the
right was “clearly established” at the time of the defendant’s
conduct.363 These issues may be addressed in any order, but both
must be established for the immunity to be overcome.364 The
qualified immunity has been said to allow “ample room for
mistaken judgments by protecting all but the plainly incompetent
or those who knowingly violate the law.”365
When is a constitutional or other federal right “clearly
established” for qualified immunity purposes? The Supreme Court
has said that even if reasonable officers would know that the
constitutional right is established, the defendant retains the
immunity unless established law makes it apparent that his
particular conduct is unconstitutional.366 For example, a
warrantless search of a home is established as unconstitutional
unless the officer has probable cause and there are exigent
circumstances requiring a search. A reasonable officer should know
the rule about warrantless searches, but a reasonable officer would
not necessarily know whether information he holds counts as
probable cause and whether the circumstances are
586
sufficiently pressing to justify the search. If a reasonable officer

could believe that the search was permissible in spite of the
general rule, the immunity remains.367
§ 22.16 Section 1983 Claims Against State and
Local Entities
States. Section 1983 imposes liability upon “every person” who
violates the plaintiff’s constitutional or other federal rights. As a
matter of historical analysis, the Supreme Court has concluded
that states were not considered “persons” and hence cannot be sued
at all under § 1983,368 although they might fall within the
proscriptions of some other statutes.
Local public entities subject to liability without immunity. Local
public entities are treated as “persons” covered by § 1983, but
subject to some special rules. The local entity cannot claim the
qualified immunity of its officer,369 and has no discretion to violate
the Constitution.370
Requirement of policy, custom, or official decision. Second, local
entities are not liable for every constitutional violation, only those
that result from a policy, custom, or official decision of the
entity.371 The fact that a police officer used excessive force in
making an arrest and thus violated the Fourth Amendment, for
example, is enough to make the officer liable, but not the entity.
On the contrary, the entity will not be responsible unless its policy,
custom, or official decision caused the constitutional violation.372
The Court sometimes expresses this rule by saying that the entity
is not to be held vicariously liable, only liable for its own acts.373
That is a convenient expression but not a literal one; more
accurately, the entity is held vicariously liable for official policy
decisions made by policymaking officials.
Single act or decision at policymaking level. Plaintiffs can
implicate a public entity in constitutional violations in two basic
ways. First, they can prove an ongoing plan, program or practice
that is unconstitutional or fosters unconstitutional action. Second,
they can prove a single “official decision” that is unconstitutional or
fosters unconstitutionality. When the plaintiff claims that a single
decision rather than an ongoing plan, practice, or program has
violated her constitutional rights, she must show
587
that the decision was made by the public entity’s policymaker
for that issue.374 The same rule can apply to any single decision as
long as it is made by the policymaking official for the issue
involved. Thus where a county attorney made decisions that led
officers to break into private premises without a warrant, his
decision was official and the county could be subjected to
liability.375
Ongoing plan, practice or custom. When the plaintiff claims that
an ongoing plan, policy, or custom of the entity is unconstitutional,
the policy might be either formalized and written or simply acted
out in a custom or practice. No formal policy is required; a custom
or practice is sufficient.376 For example, if a city refuses to train its
police officers in the proper use of force, or regularly delays
investigation of complaints about excessive force, the city’s practice
coupled with the city’s notice of the problem may be viewed as a
custom or even a policy, even though poor training or delay is not a
formal or written part of the system.377 But perhaps the terms
policy and custom are inadequate in this setting. Maybe the
important thing is that the custom or practice is carried on over
time so that the entity or its policymaker has a fair chance to
review and decide whether to alter the practice. A custom or
practice that is strong and persistent proves its own acceptance at
the policymaking level.
Policies and decisions that only risk constitutional violations by
others. Most official decisions and policies of a public entity are not
themselves unconstitutional; they merely create a risk of
unconstitutional action by others. For example, a city that
inadequately trains new police officers runs a risk that some
individual officers, lacking training, will act unconstitutionally,
perhaps by using excessive and even deadly force, but it is not a
certainty and probably not the purpose of a custom not to train.
The problem for the plaintiff in such cases may be three-fold. First,
negligence by itself, even official negligence, is ordinarily not
sufficient to show a violation of due process or equal protection
rights when the official rule or policy is not unconstitutional on its
face.378 A policy that risks unconstitutional violations but does not
dictate or approve them is not unconstitutional on its face and
sounds like a policy that is negligent only, so it might be argued
that such a policy does not violate the Constitution at all. Second, a
practice that risks unconstitutional violations by others might not
be considered a custom or policy that violates the Constitution
unless the entity’s acquiescence in that practice shows deliberate
indifference.379 Third, a policy that is not itself unconstitutional
but merely risks constitutional harm by others might be deemed an
insufficient basis for liability, either because it does not reflect
sufficient fault or because it is causally remote.380 With
588
some of these considerations in mind, the Court has said that

the plaintiff in these cases must prove that the entity was guilty of
willful indifference.381
Willful indifference might be found in some cases of ongoing
policies or programs, even in ongoing failures to act, because
sooner or later the entity must become aware of the effects and
because the unconstitutional action is highly likely over time.
Hence, a number of courts have recognized that an entity’s failure
to train police officers might subject the entity to liability for the
untrained officers’ use of excessive force,382 failure to use proper
protocols for handling domestic violence complaints,383 or denial of
medical attention.384 Similarly, a city’s do-nothing attitude can be
construed as tacit approval of rampant sexual harassment and
hence willful indifference.385 In all of these cases, however, the
plaintiff is more likely to lose because deliberate indifference or
other quasi-intentional wrongdoing will be difficult to prove.386
On the other hand, when a single decision is made that does not
set a standard for the future, the policy decision does not reflect
intent to harm. It reflects instead only an unreasonable risk of
harm, which is to say negligence. So the Court has held that a
policymaker’s one-time failure to check the background of an
officer, although a policy decision, was not one that showed
deliberate indifference.387
Constitutional violation. A clear policy of deliberate indifference
is not by itself enough to prove a § 1983 claim. The plaintiff must
also show a violation of a constitutional or other federal right.388 A
city might be deliberately indifferent to the nutritional needs of its
residents, but unless the residents have a right to the city’s
nutritional beneficence, they have no constitutional claim. With
limited exceptions, public entities do not owe affirmative duties of
protection.389 Consequently, a public school is not liable under §
1983 when it is deliberately indifferent to the probability that
589
a student will commit suicide, because the school owes no

constitutional obligation to protect the student.390
________________________________
1 See Osborn v. Bank of United States, 22 U.S. 738, 6 L.Ed. 204
(1824).
2 The Constitution creates one partial exception to the general
immunity by providing that government cannot could not take private
property for public use without paying just compensation. See U.S. Const.
Amend. V (just compensation required) and Amendment XIV § 1 (property
not to be taken without due process). Such takings are redressed, although
not on a tort theory, even when the governmental immunity is otherwise
maintained.
3 Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng.Rep. 359
(1798).
4 See §§ 22.12 & 22.13.
5 Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92
L.Ed.2d 250 (1986) (superseded by statute on other grounds); Trout v.
Sec’y of Navy,317 F.3d 206 (D.C. Cir. 2003).
6 Springer v. City and County of Denver, 13 P.3d 794 (Colo. 2000);
Smith v. Burdette, 211 W.Va. 477, 566 S.E.2d 614 (2002).
7 24 Stat. 505. Jurisdiction for most contract disputes is in the
United States Court of Federal Claims. 28 U.S.C.A. § 1491.
8 Government immunity for maritime torts is waived by the Suits
in Admiralty Act, 46 U.S.C.A. §§ 741 to 752, and the Public Vessels Act,
781 to 790; substantive issues of liability are then determined by federal
maritime law. See generally Thomas J. Schoenbaum, Admiralty and
Maritime Law § 20–1 (4th ed. 2004).
9 E.g., Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 114
S.Ct. 996, 127 L.Ed.2d 308 (1994).
10 See Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed.
1427 (1953) (“the private bill device was notoriously clumsy” so Congress
substituted simple access to federal courts).
11 60 Stat. 843. The provisions are scattered through the United
States Code. Jurisdiction is granted in 28 U.S.C.A. § 1346. The main
substantive provisions are cited in the discussion of particular provisions.
12 28 U.S.C.A. § 2875. This requirement is usually said to be
jurisdictional, that is, failure to comply with the presentment requirement
will result in dismissal for want of subject-matter jurisdiction. See Mader
v. U.S., 654 F.3d 794 (8th Cir. 2011) (discussing the issue at length).
13 28 U.S.C.A. § 2401(b) (tort claim “shall be forever barred unless it
is presented in writing to the appropriate Federal agency within two years
after such claim accrues). Federal law governs when the claim accrues and
whether equitable tolling may apply. See A.Q.C. ex rel. Castillo v. U.S.,
656 F.3d 135 (2d Cir. 2011); Santos v. United States, 559 F.3d 189 (3d Cir.
2009).
14 28 U.S.C.A. § 1346 (b) (exclusive jurisdiction in federal court).
15 28 U.S.C.A. § 2402.
16 See § 22.13. Also, the government itself “may not be held
responsible for negligent acts or omissions committed by employees of
government contractors whose daily operations are not closely supervised
by United States officials—in essence, eliminating vicarious liability as a
theory of recovery against the federal government.” Carroll v. U.S., 661
F.3d 87 (1st Cir. 2011) (citing U. S. v. Orleans, 425 U.S. 807, 96 S. Ct.
1971, 48 L. Ed. 2d 390 (1976)).
17 28 U.S.C.A. § 1346(b)(1). If government negligence occurs in State
A but harm results in State B, State A’s law controls; but that includes
State A’s choice of law rule, which is likely to refer to the law of State B,
where harm occurred. If so, the FTCA claim ultimately looks to State B’s
law. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492
(1962).
18 28 U.S.C.A. § 1346(b).
19 See, e.g., Fowler v. U.S., 647 F.3d 1232 (10th Cir. 2011).
20 E.g., Wojciechowicz v. United States, 582 F.3d 57 (1st Cir. 2009)
(no liability for government where air traffic controller did not breach a
duty and his acts did not cause air crash).
21 See, e.g., Lomando v. U.S., 667 F.3d 363 (3d Cir. 2011) (applying
New Jersey substantive law on medical malpractice and charitable
immunity). The legal effect of state statutes as negligence per se or
evidence of negligence, for example, is determined by state, not federal,
law. E.g., Jackson v. United States, 156 F.3d 230 (1st Cir. 1998).
22 See Lambertson v. United States, 528 F.2d 441, 444 (2d Cir.
1976). However, if federal employees violate a federal law that is not
incorporated into the law of the state, the government is not liable.
Williams v. United States, 242 F.3d 169 (4th Cir. 2001).
23 E.g., Williams v. United States, 435 F.2d 804 (1st Cir. 1970)
(wrongful death damages measures); Trevino v. United States, 804 F.2d
1512 (9th Cir. 1986) (issue of excessiveness).
24 28 U.S.C.A. § 2674.
25 Id.
26 Thus in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct.
122, 100 L.Ed. 48 (1955), the government’s negligent operation of a
lighthouse was actionable although private persons do not operate
lighthouses. Likewise, the government could not claim the immunity of
municipalities operating lighthouses, but was liable as if it were a private
person.
27 This means, for example, that if a private person would be
immune under state law for the same actions, the government will be as
well. See In re FEMA Trailer Formaldehyde Products Liability Litigation
(Mississippi Plaintiffs), 668 F.3d 281 (5th Cir. 2012) (because Mississippi
and Alabama “emergency statutes” immunize private persons who
voluntarily and without compensation allow their property or premises to
be used as shelter in a natural disaster, the federal government’s
voluntary provision of emergency housing units to hurricane victims was
also immunized conduct under the FTCA).
28 United States v. Olson, 546 U.S. 43, 126 S.Ct. 510, 163 L.Ed.2d
306 (2005).
29 See OSI, Inc. v. United States, 285 F.3d 947 (11th Cir. 2002) (once
the government asserts a discretionary immunity, the “burden is on the
plaintiff to prove that jurisdiction exists”).
30 28 U.S.C.A. § 2680.
31 Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972)
(sonic boom).
32 See § 22.4.
33 See § 22.13.
34 “The provisions of this chapter and section 1346(b) of this title
shall not apply to—(a) Any claim based upon an act or omission of an
employee of the Government, exercising due care, in the execution of a
statute or regulation, whether or not such statute or regulation be
valid….” 28 U.S.C.A. § 2680(a).
35 See Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed.
1427 (1953).
36 E.g., Loge v. United States, 662 F.2d 1268 (8th Cir. 1981).
37 Coates v. United States, 181 F.2d 816 (8th Cir. 1950).
38 “The provisions of this chapter and section 1346(b) of this title
shall not apply to—(a) Any claim … based upon the exercise or
performance or the failure to exercise or perform a discretionary function
or duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.” 28 U.S.C.A. § 2680(a).
See generally 2 Lester S. Jayson & Robert C. Longstreth, Handling
Federal Tort Claims, Chapter 12 (2007 & Supp.).
39 United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113
L.Ed.2d 335 (1991).
40 United States v. S.A. Empresa de Viacao Aerea Rio Grandense,
467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).
41 Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279 (3d Cir.
1995).
42 See United States v. Morrell, 331 F.2d 498 (10th Cir. 1964).
43 Sydnes v. United States, 523 F.3d 1179 (10th Cir. 2008).
44 Andrews v. United States, 121 F.3d 1430 (11th Cir. 1997).
45 Payton v. United States, 679 F.2d 475 (5th Cir. 1982).
46 The discretion is lost if a statute mandates a different action. For
instance, issuance of a license or permit may be authorized and thus
discretionary in some cases, but in others regulations may mandate a
refusal of a license until certain conditions are met. In that case, the
regulation removes the discretion. See Berkovitz by Berkovitz v. United
States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).
47 See Harold J. Krent, Preserving Discretion without Sacrificing
Deterrence: Federal Governmental Liability in Tort, 38 U.C.L.A. L. Rev.
871 (1991).
48 Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427
(1953).
49 See S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797,
104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).
50 Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100
L.Ed. 48 (1955).
51 Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct.
1954, 100 L.Ed.2d 531 (1988).
52 Accord, Loge v. United States, 662 F.2d 1268 (8th Cir. 1981);
Myers v. U.S., 652 F.3d 1021 (9th Cir. 2011); Miles v. Naval Aviation
Museum Found., Inc., 289 F.3d 715 (11th Cir. 2002).
53 See Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir.
2005) (“[W]e have generally held that the design of a course of
governmental action is shielded by the discretionary function exception,
whereas the implementation of that course of action is not.”).
L.Ed.2d 335 (1991).
55 Gaubert, 499 U.S. at 325, 111 S.Ct. at 1275.
56 Id.
57 Bruce A. Peterson & Mark E. Van der Weide, Susceptible to
Faulty Analysis: United States v. Gaubert and the Resurrection of Federal
Sovereign Immunity, 72 Notre Dame L. Rev. 447, 486 ff. (1997).
58 United States v. S.A. Empresa de Viacao Aerea Rio Grandense,
467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).
59 United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 1274, 113
L.Ed.2d 335 (1991).
60 See A.O. Smith Corp. v. United States, 774 F.3d 359 (6th Cir.
2014) (claim that Army Corps of Engineers failed to follow flood-control
protocols barred by discretionary immunity); National Union Fire Ins. v.
United States, 115 F.3d 1415 (9th Cir. 1997) (decision to postpone raising
breakwater in a harbor while the corps studied even larger improvements
led to millions in flood damage but was discretionary). There is also a
specific statute. “No liability of any kind shall attach to or rest upon the
United States for any damage from or by floods or flood waters at any
place….” 33 U.S.C.A. § 702c.
L.Ed.2d 335 (1991).
62 E.g., Hetzel v. United States, 343 F.3d 1500 (D.C. Cir. 1995).
63 E.g., Daley v. United States, 792 F.2d 1081 (11th Cir. 1986);
contrast Collins v. United States, 564 F.3d 833 (7th Cir. 2009) (holding
that the government’s decision to allocate its limited funds to provide
different levels of safety systems to different airports was discretionary).
64 Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100
L.Ed. 48 (1955).
65 See United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10
L.Ed.2d 805 (1963).
66 See, e.g., Young v. United States, 769 F.3d 1047 (9th Cir. 2014);
Buscaglia v. United States, 25 F.3d 530 (7th Cir. 1994). However, even
maintenance of property may sometimes “involve considerable discretion
that invokes policy judgment,” Terbush v. United States, 516 F.3d 1125
(9th Cir. 2008), especially where the decision whether and how to
maintain the property is connected to judgments about how to use funds.
See Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995).
67 See Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir.
2005) (“matters of scientific and professional judgment—particularly
judgments concerning safety—are rarely considered to be susceptible to
social, economic, or political policy”).
68 Collazo v. United States, 850 F.2d 1 (1st Cir. 1988).
69 E.g., Deasy v. United States, 99 F.3d 354 (10th Cir. 1996).
70 See, e.g., Navarette v. United States, 500 F.3d 914 (9th Cir. 2007).
71 See, e.g., criticizing the Court’s interpretation of the FTCA as
“producing an immunity essentially identical to that applicable before the
law was passed,” Mark C. Niles, “Nothing But Mischief”: The Federal Tort
Claims Act and the Scope of Discretionary Immunity, 54 Admin. L. Rev.
1275 (2002).
72 See, e.g., C.R.S. v. United States, 11 F.3d 791 (8th Cir. 1993)
(Army’s negligent screening of blood donations entailed a “policy”
judgment so that the government was not responsible for the Army’s
communication of AIDS to soldiers through transfusion of contaminated
blood).
73 Flynn v. United States, 902 F.2d 1524 (10th Cir. 1990).
74 Tippett v. United States, 108 F.3d 1194 (10th Cir. 1997).
75 Baum v. United States, 986 F.2d 716 (4th Cir. 1993) (“The
question of what materials to use in such a project is also fundamentally
described as a question of how to allocate limited resources among
competing needs. Considered in this light, … the Park Service’s decision in
this regard plainly was one bound up in economic and political policy
considerations.”); see also Collins v. United States, 564 F.3d 833 (7th Cir.
2009) (noting in airport-safety case that “The prioritization of demands for
government money is quintessentially a discretionary function.”); Merando
v. United States, 517 F.3d 160 (3d Cir. 2008) (immunizing government
decisions in connection with tree-management plan in National Forest, on
the ground that the decisions involved consideration of how to allocate
limited resources); Hughes v. United States, 110 F.3d 765 (11th Cir. 1997)
(postal service’s decision to provide inadequate lighting of parking lot,
coupled with hedges and other hiding places and a lack of security guards
allegedly made the lot dangerous for those rightfully obtaining mail and
led to attack on the plaintiff, but these were decisions about resources and
thus protected by the discretionary immunity exception); Cope v. Scott, 45
F.3d 445 (D.C. Cir. 1995) (decision whether to repair a road required park
service to “establish priorities for the accomplishment of its policy
objectives against such practical considerations as staffing and funding”).
76 Some authority, however, rejects the view that allocation of
resources is necessarily a policy matter. See, e.g., O’Toole v. United States,
295 F.3d 1029 (9th Cir. 2002) (agency did not allocate funds to
maintenance of irrigation system in its control, with result waters backed
up and damaged the plaintiff’s nearby land; decision to risk harm to others
is not a policy decision).
77 28 U.S.C.A. § 2680(j).
78 28 U.S.C.A. § 2680(k).
79 Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152
(1950).
80 As to suits against individual tortfeasors instead of the
government, see §§ 22.12 & 22.13; on civil rights grounds, §§ 22.14 &
22.15.
81 See, e.g., United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063,
95 L.Ed.2d 648 (1987) (Scalia, J., dissenting); Taber v. Maine, 67 F.3d
1029 (2d Cir. 1995) (Calabresi, J.). See also 2 Dobbs, Hayden & Bublick,
82 Estate of McAllister v. United States, 942 F.2d 1473 (9th Cir.
1991).
83 Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995).
84 See Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122,
100 L.Ed. 48 (1955) (government liability for negligent management of
lighthouse, although a municipality would be immune); United States v.
Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) (government
liability for negligent injury to federal prisoner; Feres is inapplicable
partly because “the Government’s liability is no longer restricted to
circumstances in which government bodies have traditionally been
responsible for misconduct of their employees”); United States v. Olson,
546 U.S. 43, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005).
85 Where a workers’ compensation statute applies, the benefits
provided are ordinarily exclusive, so that the injured worker has no tort
claim. This is the rule for federal as well as for private employees. See 5
U.S.C.A. § 8116.
86 United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139
(1954); United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d
805 (1963).
87 Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 97 S.Ct.
2054, 52 L.Ed.2d 665 (1977).
(1954); United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d
805 (1963) (“Feres seems best explained” by the discipline rationale);
Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct.
2054, 52 L.Ed.2d 665 (1977); United States v. Shearer, 473 U.S. 52, 105
S.Ct. 3039, 87 L.Ed.2d 38 (1985).
89 See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d
586 (1983) (“complex, subtle, and professional decisions … are essentially
professional military judgments”).
90 See United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97
L.Ed.2d 550 (1987).
91 Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200
(1949).
92 United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d
38 (1985).
93 However, the Court later, without explaining Shearer, insisted
that “incident to service” remained the test and that the military status of
the plaintiff, not the tortfeasor, was the critical issue. United States v.
Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987).
94 United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95
L.Ed.2d 648 (1987).
95 See United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97
L.Ed.2d 550 (1987) (civil rights claim subject to Feres rules; held, judicial
inquiry into extent of disruption of discipline would itself be too intrusive,
thus no suit permissible for human experiments on unknowing members
of the service, even if chain of command was not implicated).
96 Jackson v. United States, 110 F.3d 1484 (9th Cir. 1997).
97 Zaputil v. Cowgill, 335 F.3d 885 (9th Cir. 2003).
98 Lovely v. United States, 570 F.3d 778 (6th Cir. 2009).
99 Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200
(1949); cf. Schoenfeld v. Quamme, 492 F.3d 1016 (9th Cir. 2007) (soldier on
liberty heading off-base when injured in car crash on road partially open to
the public).
100 Snyder v. United States, 118 F.Supp. 585 (D. Md. 1953), judgment
reinstated, 350 U.S. 906, 76 S.Ct. 191, 100 L.Ed. 796 (1955); cf. Taber v.
Maine, 67 F.3d 1029 (2d Cir. 1995) (Seabee on weekend liberty).
(1954); Brown v. United States, 451 F.3d 411 (6th Cir. 2006); cf. Bradley v.
United States, 161 F.3d 777 (4th Cir. 1998) (service woman given
disability rating and removed from activity service; claim for negligent
medical treatment causing death not Feres-barred).
102 Skees v. United States, 107 F.3d 421 (6th Cir. 1997) (suicide by
off-duty member of the service, allegedly as a result of medical negligence,
is incident to service); Jones v. United States, 112 F.3d 299 (7th Cir. 1997)
(serviceman trying out for Military Olympics allegedly injured by medical
negligence; injury was incident to service); Costo v. United States, 248
F.3d 863 (9th Cir. 2001) (off duty, participating in military-sponsored
recreational rafting, Feres bars claim). Some courts reach this result by
weighing various factors.
103 See Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995).
104 See Major v. United States, 835 F.2d 641 (6th Cir. 1987) (“[T]he
Court has embarked on a course dedicated to broadening the Feres
doctrine to encompass, at a minimum, all injuries suffered by military
personnel that are even remotely related to the individual’s status as a
member of the military….”).
105 Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152
(1950).
106 Cutshall v. United States, 75 F.3d 426 (8th Cir. 1996).
107 Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987).
108 See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed.
152 (1950) (death in a barracks fire).
109 Stubbs v. United States, 744 F.2d 58 (8th Cir. 1984).
110 Kitowski v. United States, 931 F.2d 1526 (11th Cir. 1991).
111 United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d
550 (1987).
112 See Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983).
113 E.g., Skees v. United States, 107 F.3d 421 (6th Cir. 1997).
114 Lombard v. United States, 690 F.2d 215, 69 A.L.R. Fed. 921 (D.C.
Cir. 1982).
115 E.g., Williams v. United States, 435 F.2d 804 (1st Cir. 1970); see 1
Lester S. Jayson & Robert C. Longstreth, Handling Federal Tort Claims §
5A.09 (2007, with Supp.).
116 Lombard v. United States, 690 F.2d 215, 69 A.L.R.Fed. 921 (D.C.
Cir. 1982); Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983) (exposure to
radioactivity); Mondelli v. United States, 711 F.2d 567 (3d Cir. 1983)
(genetic damage by service member’s exposure to nuclear explosion,
causing cancer to child); Monaco v. United States, 661 F.2d 129 (9th Cir.
1981); Minns v. United States, 155 F.3d 445 (4th Cir. 1998) (gulf war
toxins, family members have no claim).
117 28 U.S.C.A. § 2680(b). In Dolan v. United States Postal Serv., 546
U.S. 481, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006), the plaintiff allegedly
tripped over mail negligently left on her porch. The Court held that the
exception for transmission of mail was not applicable because it was
intended to retain immunity “only for injuries arising, directly or
consequentially, because mail either fails to arrive at all or arrives late, in
damaged condition, or at the wrong address.” By the same token, the mail
exception does not immunize the postal service in auto accident cases. Id.
118 28 U.S.C.A. § 2680(c). Other statutes, however, regulate suits to
recover overpayment of taxes.
119 28 U.S.C.A. § 2680(k). The exception applies even where command
decisions that authorize tortious activities in foreign countries are made in
the United States. Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739,
159 L.Ed.2d 718 (2004).
120 See United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6
L.Ed.2d 614 (1961); Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75
L.Ed.2d 67 (1983).
121 28 U.S.C.A. § 2680(h).
122 See Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100
L.Ed. 1065 (1956); United States v. Gaidys, 194 F.2d 762 (10th Cir. 1952).
123 See CHoPP Computer Corporation, Inc. v. United States, 5 F.3d
1344 (9th Cir. 1993).
124 See Limone v. United States, 579 F.3d 79 (1st Cir. 2009).
125 Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978).
126 Truman v. United States, 26 F.3d 592 (5th Cir. 1994).
127 Metz v. United States, 788 F.2d 1528 (11th Cir. 1986).
128 28 U.S.C.A. § 2680(h). See Nguyen v. United States, 556 F.3d 1244
(11th Cir. 2009).
129 10 U.S.C.A. § 1089(e) (armed forces); 38 U.S.C.A. § 7316 (Veterans’
Administration).
130 United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d
805 (1963).
131 Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101
L.Ed.2d 352 (1988).
132 See Kathleen M. Dorr, Annotation, Construction and application
of Federal Tort Claims Act provision excepting from coverage claims
arising out of assault and battery (28 U.S.C.A. § 2680(h)), 88 A.L.R. Fed. 7
(1988).
133 See Leleux v. United States, 178 F.3d 750 (5th Cir. 1999); (sexual
battery by Navy officer on female recruit); Johnson v. United States, 788
F.2d 845 (2d Cir. 1986) (molestation by letter carrier); Miele v. United
States, 800 F.2d 50 (2d Cir. 1986) (soldier threw acid in child’s face).
134 Brock v. United States, 64 F.3d 1421 (9th Cir. 1995) (rape of
Forest Service employee by supervisor); Bennett v. United States, 803 F.2d
1502 (9th Cir. 1986) (kidnaping and rape of children by person hired by
government to teach them).
135 LM ex rel. KM v. United States, 344 F.3d 695 (7th Cir. 2003)
(child molestation by letter carrier).
136 See Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S.
226, 17 S.Ct. 581, 41 L.Ed.2d 979 (1897).
137 “The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one
of the United States by citizens of another state, or by citizens or subjects
of any foreign state.” U.S. Const. Amend. XI.
138 See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842
(1890). Federal courts may issue injunctions against state officials but may
not use such injunctions to reach the state’s treasury for past obligations.
See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662
(1974). States may also be sued in federal court under the Fourteenth
Amendment where Congress has so provided. See Quern v. Jordan, 440
U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).
139 E.g., Alaska Stats. § 09.50.250; Ga. Code § 50–21–23.
140 E.g., Colo. Rev. Stats. Ann. § 24–10–106; Tex. Civ. Prac. & Rem.
Code § 101.021. This form of immunity waiver probably operates to impose
governmental responsibility in fewer cases. For example, it may
automatically leave all common law immunity-related doctrines, such as
the public duty doctrine, standing as a bar. See Ezell v. Cockrell, 902
S.W.2d 394 (Tenn. 1995).
141 E.g., Ark. Code Ann. § 19–10–204; Conn. Gen. Stat. § 4–160.
142 E.g., 705 ILCS 505/8.
143 See Ala. Const. Art I, § 14 (the state “shall never be made a
defendant in any court of law or equity”); S.D. Cod. L. § 21–32–16 (but
liability insurance coverage waives immunity); Wis. Stat. Ann. § 895.104.
144 California’s statute specifically and broadly provides for public
entity liability for failure to discharge a mandatory duty. See Guzman v.
County of Monterey, 46 Cal.4th 887, 209 P.3d 89, 95 Cal.Rptr.3d 183
(2009) (interpreting Cal. Govt. Code § 815.6).
145 E.g., Ohio Rev. Code § 2744.02 (B)(1). See Doe v. Marlington Local
School Dist. Board of Educ., 122 Ohio St.3d 12, 907 N.E.2d 706 (2009)
(exception did not apply to a school bus driver’s alleged failure to supervise
children on a bus, as opposed to negligence in the actual driving of the
bus).
146 See, e.g., 14 Me. Rev. Stats. Ann. § 8104–A; Mich. Comp. L. Ann. §
691.1407; N.J. Stat. Ann. 59:4–2; Wyo. Stats. § 1–39–104. Neither acts by
third persons on state property, nor activities by the entity itself,
necessarily count as conditions of the property as to which immunity is
waived. See, e.g., Zelig v. County of Los Angeles, 27 Cal.4th 1112, 45 P.3d
1171, 119 Cal.Rptr.2d 709 (2002); Lightfoot v. School Administrative Dist.
No. 35, 816 A.2d 63 (Me. 2003). Insofar as the government’s property is
dangerous because it is negligently and unsafely designed, some courts
might find a discretionary immunity to design badly if the designers
actually considered costs and benefits of the dangerous design, even if they
did so negligently. See Garrison v. Deschutes County, 334 Or. 264, 48 P.3d
807 (2002).
147 See Pa. Consol. Stats. Ann. § 8522; Tenn. Code Ann. § 9–8–307
(perhaps the most detailed list).
148 E.g., Kan. Stat. Ann. § 75–6103; Mass. Gen. L. Ann. ch. 158, § 2.
149 E.g., Iowa Code Ann. § 669.14; Mass. Gen. L. Ann. ch. 258, § 10;
Nev. Rev. Stats. § 41.032. New Jersey is a little more detailed on this. N.J.
Stats. Ann. § 59:2–3. Several states do not rely upon the discretionary
immunity concept, substituting traditional tort rules about duty
limitations instead. See N.M. Stats. Ann. § 41–4–2 B.
150 E.g., Fla. Stat. Ann. § 768.28 (1) (personal injury, property
damage, death); Texas Civ. Prac. & Rem. Code § 101.021(1).
151 E.g., Colo. Rev. Stats. Ann. § 24–10–106.5. That may be the
implication of statutes requiring a negligence or wrongful act, too. E.g.,
Idaho Code § 6–903.
152 E.g., Idaho Code § 6–904; Hawai’i Rev. Code § 662–15.
153 E.g., Minn. Stat. Ann. § 3.736; Or. Rev. Stats. § 30.265.
154 E.g., 51 Okla. Stats. Ann. § 155.
155 See 12 Vt. Stats. Ann. § 5601.
156 See §§ 22.12 & 22.13.
157 Fla. Stat. Ann. § 768.28 (5) ($200,000 per person); Ind. Code 34–
13–3–4 ($700,000); Kan. Stat. Ann. § 75–6105 ($500,000); 14 Me. Rev.
Stats. Ann. § 8105 ($400,000).
158 E.g., Cal. Gov. Code § 818; Fla. Stat. Ann. § 768.28 (5); Hawai’i
Rev. Stats. § 662–2.
159 See Borchard, Government Liability in Tort, 34 Yale L. J. 129,
132–133 (1924). The immunity originated with Russell v. Men of Devon, 2
Term. Rep. 667, 100 Eng.Rep. 359 (1798), where there was no municipal
entity at all and no treasure from which to pay the claim, which, in effect,
was against the population as individuals.
160 E.g., Hensley v. Jackson County, 227 S.W.3d 491 (Mo. 2007) (stop
sign); Pohl v. County of Furnas, 682 F.3d 745 (8th Cir. 2012) (road sign;
Neb. law); Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742
(2012) (trees in city park).
161 Woods v. Town of Marion, 245 Va. 44, 425 S.E.2d 487 (1993)
(waterworks).
162 E.g., Mosby v. Moore, 716 So.2d 551 (Miss. 1998) (city’s
establishment of police force was “governmental function” making city
immune from liability for injuries caused by high-speed chase); see § 22.10.
163 E.g., Caneyville Volunteer Fire Department v. Green’s Motorcycle
Salvage, Inc., 286 S.W.3d 790 (Ky. 2009) (reviewing law of many states,
concluding that in determining immunity Kentucky places “greater weight
on the extent to which the entity engages in an essential government
function,” finding a city volunteer fire department immune).
164 E.g., Wittorf v. City of New York, 23 N.Y.3d 473, 15 N.E.2d 333,
991 N.Y.S.2d 578 (2014) (keeping roads and highways in reasonably safe
condition a proprietary function, no immunity).
165 E.g., Ranells v. City of Cleveland, 41 Ohio St.2d 1, 321 N.E.2d 885
(1975) (water department operation); contra, Fisk v. City of Kirkland, 164
Wash.2d 891, 194 P.3d 984 (2008) (city-run water company owed no
legally-enforceable duty to maintain adequate water pressure in fire
hydrants, where such a failure resulted in fire damage to plaintiff’s RV).
166 See Town of Brunswick v. Hyatt, 91 Md. App. 555, 605 A.2d 620
(1992) (struggling with cases that seemed to say so); cf. Considine v. City
of Waterbury, 279 Conn. 830, 905 A.2d 70 (2006) (revenue in excess of
costs is one factor in immunity analysis, though not controlling).
167 Schulz v. City of Brentwood, 725 S.W.2d 157 (Mo.App. 1987) (city
day-care center and preschool).
168 See City of Atlanta v. Chambers, 205 Ga.App. 834, 424 S.E.2d 19
(1992); Richardson v. City of St. Louis, 293 S.W.3d 133 (Mo. App. 2009).
169 E.g., Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915 (S.D.
1988).
170 Considine v. City of Waterbury, 279 Conn. 830, 905 A.2d 70 (2006)
(similarity to private enterprise activity is one test or factor; leasing city
property to private enterprise was proprietary); Waters v. Biesecker, 60
N.C. App. 253, 298 S.E.2d 746 (1983) (Board’s operation of alcoholic
beverage store).
171 E.g., Thomas v. Hilburn, 654 So.2d 898 (Miss. 1995).
172 Morgan v. City of Ruleville, 627 So.2d 275 (Miss. 1993)
“Proprietary activities are those which, while beneficial to the community
and very important, are not vital to a City’s functioning. (Zoo, football
stadium.)”
173 E.g., Town of Brunswick v. Hyatt, 91 Md.App. 555, 605 A.2d 620
(1992).
174 See § 22.6.
175 As in 42 Pa.C.S. §§ 8541.
176 E.g., N.C. Gen. Stat. § 153A–435.
177 For example, Chapter 745 of the Illinois Statutes contains
separate subdivisions for states, local entities, schools, officers and a
number of other immunities.
178 E.g., 745 ILCS 10/2–109 (“A local public entity is not liable for an
injury resulting from an act or omission of its employee where the
employee is not liable.”); Sletten v. Ramsey County, 675 N.W.2d 291
(Minn. 2004) (applying the rule that the county enjoys “vicarious official
immunity” where the employee is immune by virtue of engaging in a
discretionary function).
179 E.g., Ex parte City of Tuskeegee, 932 So.2d 895 (Ala. 2005) (city
liable where employee acts negligently, but the city is immune and only
the employee is liable where he acts in bad faith or with malice).
180 E.g., Wiehagen v. Borough of North Braddock, 527 Pa. 517, 594
A.2d 303 (1991).
181 Ohio Rev. Code § 2744.02(B)(3).
182 Alaska Stats. § 29.35.133; N.J. Stat. Ann. 52:17C–10(D).
183 Ala. Code § 4–4–4.
184 Often by statute, as in e.g., Kan. Stat. Ann. § 75–6104.
185 See, e.g., Terwilliger v. Hennepin County, 561 N.W.2d 909 (Minn.
1997). The federal cases on the same general rule under the Federal Tort
Claims Act are discussed in § 336.
186 See § 22.9.
187 Cf. Hill v. Alderman of City of Charlotte, 72 N.C. 55 (1875) (injury
when city suspended anti-fireworks ordinance, no liability).
188 Jarboe v. Board of County Comn’rs of Sedgwick County, 262 Kan.
615, 938 P.2d 1293 (1997).
189 See Shelton v. State, 644 N.W.2d 27 (Iowa 2002); Schroeder v. St.
Louis County, 708 N.W.2d 497 (Minn. 2006).
190 Defoor v. Evesque, 694 So.2d 1302 (Ala. 1997).
191 See Bell v. Chisom, 421 So.2d 1239 (Ala. 1982).
192 See Reynolds v. Kansas Dep’t of Trans., 43 P.3d 799 (Kan. 2002);
but see Steward v. State, 322 P.3d 860 (Alaska 2014) (decision not to
reinstall a removed guardrail was discretionary); Truman v. Griese, 762
N.W.2d 75 (S.D. 2009) (state department of transportation’s decision on
the placement of warning signs at an intersection was discretionary).
193 See Terwilliger v. Hennepin County, 561 N.W.2d 909 (Minn.
1997).
194 See, e.g., Graber v. City of Ankeny, 56 N.W.2d 157 (Iowa 2003) (no
immunity for decisions about traffic light timing); Mahan v. New
Hampshire Dep’t of Administrative Services, 141 N.H. 747, 693 A.2d 79
(1997).
195 Johnson v. State, 69 Cal.2d 782, 447 P.2d 352, 73 Cal.Rptr. 240
(1968) (“[T]o be entitled to immunity the state must make a showing that
such a policy decision, consciously balancing risks and advantages, took
place.”); Thompson v. Newark Housing Authority, 108 N.J. 525, 531 A.2d
734 (1987).
196 Creech v. South Carolina Wildlife and Marine Resources Dept.,
491 S.E.2d 571 (S.C. 1997).
197 E.g., Anderson v. State, 692 N.W.2d 360 (Iowa 2005); Martinez v.
Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). See § 22.3.
198See, e.g., Rosebush v. United States, 119 F.3d 438 (6th Cir. 1997);
Bowman v. United States, 820 F.2d 1393 (4th Cir. 1987).
199 E.g., Kohl v. City of Phoenix, 215 Ariz. 291, 160 P.3d 170 (2007);
Wallace v. Dean, 3 So.3d 1035 (Fla. 2009); S.W. v. Spring Lake Park
School Dist. No. 16, 580 N.W.2d 19 (Minn. 1998); Giggers v. Memphis
Hous. Auth., 363 S.W.3d 500 (Tenn. 2012).
200 See Defoor v. Evesque, 694 So.2d 1302 (Ala. 1997);
Commonwealth, Trans. Cabinet, Dep’t of Highways v. Sexton, 256 S.W.3d
29 (Ky. 2008); Umansky v. ABC Ins. Co., 319 Wis.2d 622, 769 N.W.2d 1
(2009).
201 See § 11.1 & 11.2. Courts may invoke the public duty doctrine in
such a situation even though a simple holding that the statute imposed no
duty at all might seem less complicated. E.g., Benson v. Kutsch, 181 W.Va.
1, 7, 380 S.E.2d 36, 42 (1989).
202 See Kolbe v. State, 625 N.W.2d 721 (Iowa 2001); Lauer v. City of
New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 (2000); Morris
v. Anderson County, 564 S.E.2d 649 (S.C. 2002); Osborn v. Mason County,
157 Wash.2d 18, 134 P.3d 197 (2006).
203 See Madison ex rel. Bryant v. Babcock Center, Inc., 371 S.C. 123,
638 S.E.2d 650 (2006) (public duty rule relieves public entity of a duty of
care “only when an action is founded upon a statutory duty”).
204 See Varner v. District of Columbia, 891 A.2d 260 (D.C. 2006);
Kunzie v. City of Olivette, 184 S.W.3d 570 (Mo. 2006); Morales v. Town of
Johnston, 895 A.2d 721 (R.I. 2006).
205 Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376, 41
A.L.R.3d 692 (1969), overruled, along with the public duty doctrine itself,
in Ryan v. State, 134 Ariz. 308, 656 P.2d 597, 38 A.L.R.4th 1188 (1982).
206 E.g., Ware v. City of Chicago, 375 Ill.App.3d 574, 873 N.E.2d 944,
314 Ill.Dec. 14 (2007); Rakowski v. Sarb, 269 Mich.App. 619, 713 N.W.2d
787 (2006); Torres v. Damicis, 853 A.2d 1233 (R.I. 2004).
207 Donovan v. Village of Ohio, 397 Ill.App.3d 844, 921 N.E.2d 1238,
337 Ill.Dec. 100 (2010). However, if the 911 operator expressly makes
promises and assurances that are not fulfilled, liability is possible. See
Munich v. Skagit Emergency Communication Center, 175 Wash. 2d 871,
288 P.3d 328 (2012).
208 See, on both counts, Varner v. District of Columbia, 891 A.2d 260
(D.C. 2006).
209 Eklund v. Trost, 335 Mont. 112, 151 P.3d 870 (2006) (statute
authorizing emergency vehicles to violate traffic laws).
210 Sorichetti v. City of New York, 65 N.Y.2d 461, 492 N.Y.S.2d 591,
482 N.E.2d 70 (1985); Nearing v. Weaver, 295 Or. 702, 670 P.2d 137
(1983).
211 Brodie v. Summit County Children Services Board, 51 Ohio St.3d
112, 554 N.E.2d 1301 (1990); Gagnon v. State, 570 A.2d 656 (R.I. 1990);
Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995).
212 Ducote v. State, Dep’t of Social and Health Services, 167 Wash.2d
697, 222 P.3d 785 (2009)
213 See, e.g., P.W. and R.W. v. Kansas Dep’t of Social and
Rehabilitation Services, 255 Kan. 827, 877 P.2d 430 (1994); see Danny R.
Veilleux, Annotation, Governmental Liability For Negligence in Licensing,
Regulating, or Supervising Private Day-care Home in Which Child Is
Injured, 68 A.L.R.4th 266 (1989).
214 See, e.g., Cuyler v. United States, 362 F.3d 949 (7th Cir. 2004).
215 See, e.g., Doe v. Marion, 373 S.C. 390, 645 S.E.2d 245 (App. 2007)
(citing cases from many jurisdictions); Barbina v. Curry, 650 S.E.2d 140
(W.Va. 2007); Danny R. Veilleux, Annotation, Validity, Construction, and
Application of State Statute Requiring Doctor or Other Person to Report
Child Abuse, 73 A.L.R.4th 782 (1990). A small number of cases go the
other way, see, e.g., Landeros v. Flood, 17 Cal.3d 399, 131 Cal.Rptr. 69,
551 P.2d 389, 97 A.L.R.3d 324 (1976). States may also restrict the scope of
duty created by such statutes. O’Toole v. Denihan, 118 Ohio St.3d 374, 889
N.E.2d 505 (2008) (no duty under child abuse reporting statute to report to
law enforcement).
216 See Pelaez v. Seide, 2 N.Y.3d 186, 810 N.E.2d 393, 778 N.Y.S.2d
111 (2004) (lead paint in rental housing).
217 Tedesco v. Connors, 871 A.2d 920 (R.I. 2005).
218 Estate of Graves, 124 Ohio St. 3d 339, 922 N.E.2d 201 (2010)
(wanton or reckless conduct); Ezell v. Cockrell, 902 S.W.2d 394 (Tenn.
1995).
219 See Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995) (common
law duty based on relationship of parties); Edwards v. Lexington County
Sheriff’s Dept., 386 S.C. 285, 688 S.E.2d 125 (2010) (county and sheriff’s
department owed common law duty of care to plaintiff based on creation of
risk of harm); Benson v. Kutsch, 181 W.Va. 1, 7, 380 S.E.2d 36, 42 (1989)
(local public entity would still be liable for negligent conduct in its
proprietary capacity). Common law duties to take affirmative action are
considered principally in Chapter 25.
220 See Gleason v. Peters, 568 N.W.2d 482 (S.D. 1997) (plaintiff must
show some combination of “(1) actual knowledge of the dangerous
condition; (2) reasonable reliance by persons on official representations
and conduct; (3) an ordinance or statute setting forth mandatory acts
clearly for the protection of a particular class of persons rather than the
general public; and (4) failure to use due care to avoid increasing the risk
of harm”).
221 See, e.g., Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583,
375 N.E.2d 763 (1978) (duty to provide school crossing guards; city’s
conduct induced reliance). If the city has not engaged on reliance-inducing
conduct, the plaintiff must show a promise, see, e.g., McLean v. City of
New York, 12 N.Y.3d 194, 905 N.E.2d 1167, 878 N.Y.S.2d 238 (2009) (city
did not have sufficient contact with mother whose child was harmed in city
day-care center to be deemed to have “promised” anything), on which the
plaintiff could reasonably rely, see Braswell v. Braswell, 330 N.C. 363, 410
S.E.2d 897 (1991) (sheriff’s general assurances of safety not sufficient);
Babcock v. Mason County Fire Dist. No. 6, 144 Wash.2d 774, 30 P.3d 1261
(2001) (homeowners could not justifiably rely on firefighter’s statement
that their property would be protected).
222 Special relationships that generate a duty to take positive acts of
reasonable care include the familiar categorical relationships like
landowner-invitee, see Raas v. State, 729 N.W.2d 444 (Iowa 2007), or
custodianward, see Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d
31 (1997) (handcuffed man). Informal or ad hoc relationships may also
trigger a duty. See, e.g., Schuster v. City of New York, 5 N.Y.2d 75, 154
N.E.2d 534, 180 N.Y.S.2d 265 (1958) (police informant); Edwards v.
Lexington County Sheriff’s Dept., 386 S.C. 285, 688 S.E.2d 125 (2010)
(where police had arranged a hearing for a domestic-violence victim). Prior
contact with a plaintiff might produce a special duty simply on the idea
that such contact makes injury to that particular plaintiff foreseeable. See
St. James Condominium Ass’n v. Lokey, 676 A.2d 1343 (R.I. 2006) (town
inspectors had earlier conducted allegedly negligent inspection of
plaintiff’s condominium).
223 Thus where police have engaged in a high-speed chase resulting in
harm to an innocent person, the public duty doctrine will not usually bar
the claim. See Williams v. Mayor & City Council of Baltimore, 359 Md.
101, 753 A.2d 41 (2000); Seide v. State, 875 A.2d 1259 (R.I. 2005); but see
Southers v. City of Farmington, 263 S.W.3d 603 (Mo. 2008) (using public
duty doctrine to immunize police chief and supervising officer in high-
speed chase case). For more on high-speed chases, see § 22.10.
224 See Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449
(1998); De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457
N.E.2d 717 (1983); Munich v. Skagit Emergency Communication Center,
175 Wash. 2d 871, 288 P.3d 328 (2012).
225 E.g., Commercial Carrier Corp. v. Indian River County, 371 So.2d
1010 (Fla. 1979); Jean W. v. Commonwealth, 414 Mass. 496, 610 N.E.2d
305 (1993); Southers v. City of Farmington, 263 S.W.3d 603 (Mo. 2008);
Ficek v. Morken, 685 N.W.2d 98 (N.D. 2004); Wallace v. Ohio Dep’t of
Commerce, 96 Ohio St. 3d 266, 773 N.E.2d 1018 (2002). In some states,
statutory schemes of immunity have affected these holdings.
226 Gregory v. Clive, 282 Ga. 476, 651 S.E.2d 709 (2007); Beaudrie v.
Henderson, 631 N.W.2d 308 (Mich. 2001); Lovelace v. City of Shelby, 526
S.E.2d 652 (N.C. 2000); E.P. v. Riley, 604 N.W.2d 7 (S.D. 1999). In
contrast, Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d
372 (2002), applies the doctrine to at least some other employees.
227 O’Gara v. Ferrante, 690 A.2d 1354 (R.I. 1997) (doctrine “shields
the state and its political subdivisions from tort liability arising out of
discretionary governmental actions that by their nature are not ordinarily
performed by private persons”).
228 E.g., Ariz. Rev. Stats. § 12–820.02 A 1 (unless grossly negligent);
Mass. Gen. L. Ann. ch. 258 § 10(h).
229 See, e.g., Holsten v. Massey, 200 W.Va. 775, 490 S.E.2d 864 (1997)
(“The public duty doctrine … is not based on immunity from existing
liability. Instead, it is based on the absence of duty in the first instance.”).
230 Distinguish negligence per se, which allows a statute to set the
standard of care if the statute is designed to protect a class of persons the
plaintiff is in against a type of harm that occurred. See Chapter 11.
231 E.g., Tipton v. Town of Tabor, 567 N.W.2d 351 (1997).
232 See Shore v. Town of Stonington, 187 Conn. 147, 156, 444 A.2d
1379, 1383 (1982); see also Remet Corp. v. City of Chicago, 509 F.3d 816
(7th Cir. 2007) (“[I]f a municipality were required to meet every allegation
of negligence, enormous public resources would be diverted from the
provision of governmental services to the defense of litigation and payment
of judgments.”); Prosser v. Kennedy Enterprises, Inc., 342 Mont. 209, 179
P.3d 1178 (2008) (“The public duty doctrine prevents individual members
of the public from using tort liability to constrain unduly a municipality’s
discretion to use its limited resources to promote the general welfare.”).
233 South v. Maryland, 59 U.S. 396, 15 L.Ed. 433 (1855); Ezell v.
Cockrell, 902 S.W.2d 394 (Tenn. 1995).
234 De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457
N.E.2d 717 (1983). In such cases, police may not only have allocated
resources, thereby undertaking a duty of care, but may also have lost any
immunity for discretionary activities, because once a known and present
danger is encountered, reasonable rescue action becomes a ministerial
task. See, expounding this doctrine, but rejecting its application to the
facts, Lodl v. Progressive Northern Ins. Co., 253 Wis.2d 323, 646 N.W.2d
314 (2002).
235 Harry Stoller and Co. v. City of Lowell, 412 Mass. 139, 587 N.E.2d
780 (1992); Invest Cast, Inc. v. City of Blaine, 471 N.W.2d 368 (Minn.
1991). Contra, City of Daytona Beach v. Palmer, 469 So.2d 121 (Fla. 1985)
(decisions on how to fight a fire involve discretionary judgments).
236 See Kircher v. City of Jamestown, 74 N.Y.2d 251, 544 N.Y.S.2d
995, 543 N.E.2d 443 (1989).
237 Dore v. City of Fairbanks, 31 P.3d 788 (Alaska 2001).
238 Frye v. Clark County, 97 Nev. 632, 637 P.2d 1215 (1981).
239 Motyka v. City of Amsterdam, 15 N.Y.2d 134, 204 N.E.2d 635, 256
N.Y.S.2d 595 (1965). See Kan. Stats. Ann. 75–6104(n); Mass. Gen. L. Ann.
ch. 258 § 10(g).
240 E.g., Remet Corp. v. City of Chicago, 509 F.3d 816 (7th Cir. 2007)
(Illinois law); Westbrook v. City of Jackson, 665 So.2d 833 (Miss. 1995);
Fisk v. City of Kirkland, 164 Wash.2d 891, 194 P.3d 984 (2008).
241 Ziegler v. City of Millbrook, 514 So.2d 1275 (1987); Adams v.
State, 555 P.2d 235 (Alaska 1976) (fire hazards actually discovered in
hotel). These cases implicate the public duty doctrine, see § 22.9.
242 Barillari v. City of Milwaukee, 194 Wis.2d 247, 533 N.W.2d 759
(1995).
243 Niese v. City of Alexandria, 264 Va. 230, 564 S.E.2d 127 (2002).
244 See City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481
(2000); City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla. 1992).
245 See Sergent v. City of Charleston, 549 S.E.2d 311 (W. Va. 2001);
cf. Gooden v. City of Talladega, 966 So.2d 232 (Ala. 2007) (police not
negligent for engaging in high-speed chase where the fleeing driver’s
attempts to evade arrest posed an immediate threat to other motorists).
246 It is increasingly common for statutes to be construed to limit the
standard of care for emergency vehicles, so that liability for high-speed
chases is imposed only for reckless or similar exaggerated fault. See, e.g.,
Robbins v. City of Wichita, 285 Kan. 455, 172 P.3d 1187 (2007); Saarinen
v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988 (1994); Seide v.
State, 875 A.2d 1259 (R.I. 2005); City of Amarillo v. Martin, 971 S.W.2d
426 (Tex. 1998); Rochon v. State, 177 Vt. 144, 862 A.2d 801 (2004).
247 See Estate of Day v. Willis, 897 P.2d 78 (Alaska 1995); Robinson v.
City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000); Lindstrom v. City of
Corry, 563 Pa. 579, 763 A.2d 394 (2000).
248 E.g., Pletan v. Gaines, 494 N.W.2d 38 (Minn. 1992); Mosby v.
Moore, 716 So.2d 551 (Miss. 1998); Southers v. City of Farmington, 263
S.W.3d 603 (Mo. 2008); McBride v. Bennett, 764 S.E.2d 44 (Va. 2014).
249 See Alston v. City of Camden, 168 N.J. 170, 773 A.2d 693 (2001)
(under statute).
250 See Alcala v. City of Corcoran, 147 Cal.App.4th 666, 53
Cal.Rptr.3d 908 (2007); Estate of Cavanaugh v. Andrade, 202 Wis.2d 290,
550 N.W.2d 103 (1996).
251 See generally Janet Boeth Jones, Annotation, Governmental Tort
Liability For Injuries Caused by Negligently Released Individual, 6
A.L.R.4th 1155 (1981).
252 See §§ 26.9 & 26.11.
253 See, e.g., S.C. Code § 15–78–60 (21); Don F. Vaccaro, Annotation,
Liability of Public Officer or Body For Harm Done by Prisoner Permitted
to Escape, 44 A.L.R.3d 899 (1973).
254 E.g., N.J. Stats. Ann. § 59:5–2 (parole or escape); 51 Okla. St. Ann.
§ 155; S.C. Code § 15–78–60.
255 E.g., State, Dep’t of Corrections v. Cowles, 151 P.3d 353 (Alaska
2006).
256 E.g., Parkulo v. West Virginia Board of Probation and Parole, 199
W.Va. 161, 483 S.E.2d 507 (1996) (public duty rule and discretionary
immunity); Leonard v. State, 491 N.W.2d 508 (Iowa 1992).
257 Board of Regents of the University System of Georgia v. Riddle,
229 Ga.App. 15, 493 S.E.2d 208 (1997) (statutory assault-and-battery
immunity).
258 Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677 (1998).
259 E.g., Natrona County v. Blake, 81 P.3d 948 (Wyo. 2003) (county
owed duty of care to prevent escape of known dangerous criminal and is
potentially liable for his murder of an unrelated victim in another state).
260 See Grimm v. Arizona Board of Pardons & Paroles, 115 Ariz. 260,
564 P.2d 1227 (1977).
261 See Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d
779 (2998).
262 Mass. Gen. L. Ann. ch. 258 § 10(i) (gross negligence standard); see
Ariz. Rev. Stats. § 12–820.02.
263 Faile v. South Carolina Dep’t of Juvenile Justice, 350 S.C. 315,
566 S.E.2d 536 (2002) (no immunity; gross negligence); Hertog v. City of
Seattle, 138 Wash.2d 265, 979 P.2d 400 (1999) (imposing duty of
reasonable supervision).
264 Johnson v. State, 69 Cal.2d 782, 447 P.2d 352, 73 Cal.Rptr. 240
(1968) (no immunity); accord, Anderson v. Nebraska Dep’t of Social
Services, 248 Neb. 651, 538 N.W.2d 732 (1995).
14, 551 P.2d 334, 83 A.L.R.3d 1166 (1976). See § 26.11. However, the same
court took the view that no warning was required when the authorities
released a young man who threatened to molest and murder an unnamed
child, and then did so, on the ground that the release did not create a
specific threat to a particular child. Thompson v. County of Alameda, 27
Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701 (1980);
accord, Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677 (1998).
266 Hamman v. County of Maricopa, 161 Ariz. 58, 775 P.2d 1122
(1989); Schuster v. Altenberg, 144 Wis.2d 223, 424 N.W.2d 159 (1988).
When the plaintiff claims negligence on some ground other than failure to
warn, the absence of an identifiable victim is not controlling. See Estates
of Morgan v. Fairfield Family Counseling Center, 77 Ohio St. 3d 284, 673
N.E.2d 1311 (1997).
267 See Anderson v. Nebraska Dep’t of Social Services, 248 Neb. 651,
538 N.W.2d 732 (1995).
268 See, e.g., Ohio Rev. Code 2744.03(A)(6)(b); Murray v. Plainfield
Rescue Squad, 210 N.J. 581, 46 A.3d 1262 (2012) (statute grants an
immunity to individual members of city rescue squad, but the immunity
does not extend to the rescue squad as an entity).
269 See §§ 22.14 to 22.16. The protections provided by state statutes
may be overridden by federal civil rights liability. Id.
270 See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982).
271 Id.
272 Cal. Gov’t Code § 815.2 (“Except as otherwise provided by statute,
a public entity is not liable for an injury resulting from an act or omission
of an employee of the public entity where the employee is immune from
liability.”). See Thomas v. City of Richmond, 9 Cal.4th 1154, 892 P.2d
1185, 40 Cal.Rptr.2d 442 (1995) (recognizing limited exceptions).
273 See Martin v. Brady, 261 Conn. 372, 802 A.2d 814 (2002)
(allegedly illegal search and physical attack by officer not shown to be
made with requisite malice, plaintiff left only with a claim to be filed with
claims commissioner).
274 E.g., Me. Rev. Stats. Ann. § 8112 (“A governmental entity, with
the consent of the employee, shall assume the defense of and, in its
discretion, may indemnify any employee against a claim which arises out
of an act or omission occurring within the course and scope of employment
and for which the governmental entity is not liable”); Minn. Stat. Ann. §
3.736, subd. 9.
275 See Martin v. Brady, 261 Conn. 372, 802 A.2d 814 (2002)
(outlining such a procedure).
276 See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288
(1967).
277 See, e.g., K.D. v. Bozarth, 313 N.J.Super. 561, 713 A.2d 546
(1998).
278 E.g., Sherman v. Almeida, 747 A.2d 470 (R.I. 2000).
279 Ex parte Virginia, 100 U.S. (10 Otto) 339, 25 L.Ed. 676 (1880).
280 See § 37.11.
281 See, e.g., Hawkins v. Harris, 141 N.J. 207, 661 A.2d 284 (1995);
Restatement Second of Torts §§ 585 to 589 (1977). The privilege has
reached far beyond official and governmental functions; it may be
extended protect not only witnesses in courts, but individuals involved in
preparing for trial and even those reporting a suspected crime. See §
37.11. See also Rehberg v. Paulk, 132 S. Ct. 1497, 182 L. Ed. 2d 593 (2012)
(in § 1983 actions, grand jury witness is entitled to same absolute
immunity as a trial witness).
282 See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d
128 (1976); Slater v. Clarke, 700 F.3d 1200 (9th Cir. 2012). If the
prosecutor goes beyond the traditional role, he may lose his immunity. See
Doe v. Phillips, 81 F.3d 1204 (2d Cir. 1996) (prosecutor demanded that
criminal defendant swear an oath on the Bible in church as a condition to
dismissal of charge; no immunity). Some states have extended the absolute
immunity to public defenders. See Bradshaw v. Joseph, 164 Vt. 154, 666
A.2d 1175 (1995).
283 See LaLonde v. Eissner, 405 Mass. 207, 539 N.E.2d 538 (1989).
Guardians ad litem, appointed by a court to represent another’s interests
in litigation, are often granted an absolute immunity for acts done within
the scope of their official duties. See § 727.
284 See, e.g., Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d
547 (1991) (state prosecutor absolutely immune from liability for damages
under § 1983 for participating in a probable cause hearing, but not entitled
to absolute immunity for giving legal advice to the police).
285 See Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d
555 (1988).
286 State v. Second Judicial District Court, County of Washoe, 55 P.3d
420 (Nev. 2002).
287 See Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d
79 (1998) (civil rights claim).
288 See Butler v. Town of Argo, 871 So.2d 1 (Ala. 2003); Sanchez v.
Coxon, 175 Ariz. 93, 854 P.2d 126 (1993); Voelbel v. Town of Bridgewater,
144 N.H. 599, 747 A.2d 252 (1999).
289 Noble v. Ternyik, 273 Or. 39, 539 P.2d 658 (1975) (members of
local port commission).
290 See Restatement Second of Torts § 895D, cmt. a (1979).
291 See Maiden v. Rozwood, 461 Mich. 109, 597 N.W.2d 817 (1999)
(applying statute).
292 Bauer v. State, 511 N.W.2d 447 (Minn. 1994); Restatement Second
of Torts § 591(b) (1977).
293 See Thoma v. Hickel, 947 P.2d 816 (Alaska 1997).
294 See § 22.13.
295 S.C. Code § 15–78–70; 12 Vt. Stats. Ann. § 5602.
296 Estate of Logusak v. City of Togiak, 185 P.3d 103 (Alaska 2008);
DiPino v. Davis, 354 Md. 18, 729 A.2d 354 (1999); Southers v. City of
Farmington, 263 S.W.3d 603 (Mo. 2008).
297 Courts state the definition of a ministerial act stringently: “The
duty is ministerial when it is absolute, certain, and imperative, involving
merely execution of a specific duty arising from fixed and designated
facts.” Faile v. South Carolina Dep’t of Juvenile Justice, 350 S.C. 315, 566
S.E.2d 536 (2002). For instance, if a statute requires the officer to perform
a specific task and gives him no option, the duty is ministerial. See Gregor
v. Argenot Great Central Ins. Co., 851 So.2d 959 (La. 2003).
298 E.g., Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880 (1997). On the
face of it, the officer-employee distinction tends to limit the immunity to
persons exercising significant state power. See Muthukumarana v.
Montgomery County, 370 Md. 447, 805 A.2d 372 (2002) (911 operator not
an officer, partly because operator did not exercise “sovereign power of the
state”).
299 Compare Merrow v. Hawkins, 266 Ga. 390, 467 S.E.2d 336 (1996)
(jailer’s decision to give car keys to inmate so he could wash a car led to
theft of the car and damage to others; giving the keys is “discretionary”)
with Morway v. Trombly, 789 A.2d 965 (Vt. 2001) (operating a snow plow
is ministerial)
300 See City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994). As
in federal civil rights cases, “good faith” may turn out to be something of a
reasonableness rule. See, e.g., Telthorster v. Tennell, 92 S.W.3d 457 (Tex.
2002) (“[T]o establish his good faith for official-immunity purposes [the
officer] must show that a reasonably prudent officer, under the same or
similar circumstances, could have believed that his conduct was justified
based on the information he possessed.”).
301 Restatement Second of Torts § 895D, cmt. f (1979).
302 E.g., Brown Eyes v. South Dakota Dep’t of Social Services, 630
N.W.2d 501 (S.D. 2001) (social workers’ placement of child in foster home
was ministerial but social workers were protected by statutory good faith
immunity).
303 Government contractors may enjoy immunity as well. See 2
Dobbs, Hayden & Bublick, The Law of Torts § 352 (2d ed. 2011 & Supp.).
The leading case is Boyle v. United Technologies Corp., 487 U.S. 500, 108
S. Ct. 2510, 101 L. Ed. 2d 442 (1988).
304 28 U.S.C.A. § 2679. The statute which is the basis of this code
section was enacted in response to Westfall v. Erwin, 484 U.S. 292, 108
S.Ct. 580, 98 L.Ed.2d 619 (1988), and is consequently often referred to as
the Westfall Act.
305 The statute leaves a remedy against the employee in claims for
violation of the constitution or a federal statute “under which such action
against an individual is otherwise authorized.” 28 U.S.C.A. § 2679 (b)(2)(A)
& (B). As to civil rights claims against federal officers, see § 22.14; 2
306 E.g., Wuterich v. Murtha, 562 F.3d 375 (D.C. Cir. 2009)
(Congressman not acting outside the scope of employment when he uttered
allegedly defamatory statements about the plaintiff, thus Congressman is
immune from suit). Whether an employee was acting within the scope of
employment is determined by applying the law of the state in which the
accident occurred. Fowler v. U.S., 647 F.3d 1232 (10th Cir. 2011).
307 28 U.S.C.A. § 2679 (d). The statute provides that the attorney
general’s certification is “conclusive,” but the Court has held that it is
judicially reviewable. Gutierrez de Martinez v. Lamagno, 515 U.S. 417,
115 S.Ct. 2227, 132 L.Ed.2d 375 (1995).
308 Osborn v. Haley, 549 U.S. 225, 127 S.Ct. 881, 166 L.Ed.2d 819
(2007).
309 See United States v. Smith, 499 U.S. 160, 111 S.Ct. 1180, 113
L.Ed.2d 134 (1991).
310 U. S. Const. Art. I, § 6 (“… for any Speech or Debate in either
House, they shall not be questioned in any other Place”).
311 United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 35 L.Ed.2d
507 (1972) (criminal prosecution for accepting a bribe is not barred by the
Speech and Debate Clause).
312 Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912
(1973).
313 Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d
411 (1979) (U.S. Senator was subject to suit for defamation based on
newsletters and news releases).
314 See Wuterich v. Murtha, 562 F.3d 375 (D.C. Cir. 2009).
315 See Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d
349 (1982).
316 Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636, 137 L.Ed.2d 945
(1997).
317 Butz v. Economou, 438 U. S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895
(1978) (rejecting argument that officials of the Department of Agriculture
are entitled to absolute immunity).
318 Mullis v. U.S. Bankruptcy Court for Dist. of Nevada, 828 F.2d
1385 (9th Cir. 1987). This immunity extends to administrative law judges
as well. Butz v. Economou, 438 U. S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895
(1978)
319 Yarelli v. Goff, 275 U.S. 503, 48 S.Ct. 255, 72 L.Ed. 395 (1927).
320 Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355
(1979).
321 See § 22.12.
322 Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47
L.Ed.2d 128 (1976).
323 Among the books see Martin A. Schwartz, Section 1983 Litigation:
Claims and Defenses (4th ed. 2003, 4 vols. & Supp.); Rodney A. Smolla,
Federal Civil Rights Acts (3d ed. 1994, 2 vols. & Supp.); Sheldon Nahmod,
Civil Rights and Civil Liberties Litigation: the Law of Section 1983 (4th
Ed. 1997).
324 See Hartman v. Moore, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)
(civil rights torts have their own special elements, but the common law is
“a source of inspired examples”); Heck v. Humphrey, 512 U.S. 477, 114
S.Ct. 2364, 129 L.Ed.2d 383 (1994).
325 Heartland Academy Community Church v. Waddle, 595 F.3d 798
(8th Cir. 2010).
326 Swipies v. Kofka, 419 F.3d 709 (8th Cir. 2005).
327 “Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress….” 42 U.S.C.A. § 1983.
328 A person acts under the color of state law when he exercises power
“possessed by virtue of state law and made possible only because [of] the
authority of state law….” See West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250,
101 L.Ed.2d 40 (1988). Private individuals ordinarily do not act under
color of state law, but may do so at times. See Adickes v. Kress & Co., 398
U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fabrikant v. French, 691
F.3d 193 (2d Cir. 2012). Courts have said that a private person is not a
state actor—not acting under color of law—unless he is performing a
traditional state function or the state is significantly involved in his
activity. See Wilson v. Price, 624 F.3d 389 (7th Cir. 2010).
329 Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Bivens
claim is analogous to the § 1983 claim against state officials, and subject to
the same immunities. See 2 Dobbs, Hayden & Bublick, The Law of Torts §
356 (2d ed. 2011 & Supp.).
330 See 42 U.S.C.A. § 1988. The statute has produced litigation over
who is a “prevailing” party. See, e.g., Lefemine v. Wideman, 133 S.Ct. 9,
184 L.Ed.2d 313 (2012) (plaintiff who secured a permanent injunction but
no monetary damages was a “prevailing party” entitled to fees); Farrar v.
Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992) (plaintiff
“prevails” when “actual relief on the merits of his claim materially alters
the legal relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff”).
331 See Haywood v. Drown, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009);
Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990).
332 Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989) (quoting Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d
433 (1979)).
333 E.g., Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009)
(city may be liable under § 1983 for failing to train its police officers
regarding their obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), to disclose exculpatory evidence to a criminal
defendant); Tennison v. City and County of San Francisco, 570 F.3d 1078
(9th Cir. 2009) (affirming trial court’s ruling that homicide investigators
were not immune from § 1983 liability where they failed to fulfill Brady
obligations to plaintiffs).
334 E.g., Grammer v. John J. Kane Regional Centers-Glen Hazel, 570
F.3d 520 (3d Cir. 2009) (federal nursing home statute).
335 Under the Fourteenth Amendment, states may not deny “equal
protection of the laws” to any person, and must not “deprive any person of
life, liberty, or property, without due process of law.” Similar clauses in the
Fifth Amendment apply to the federal government. For § 1983 cases
arising under the Fourteenth Amendment, see 2 Dobbs, Hayden &
Bublick, The Law of Torts § 76 (2d ed. 2011 & Supp.).
336 The Fourth Amendment, which limits the powers of the states by
way of the Fourteenth Amendment, provides: “The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things
to be seized.” For § 1983 cases arising under the Fourth Amendment, see 2
Dobbs, Hayden & Bublick, The Law of Torts §§ 77 & 78 (2d ed. 2011 &
Supp.).
337 For § 1983 cases arising under the Eighth Amendment, see 2
338 Webster v. City of Houston, 689 F.2d 1220 (5th Cir. 1982), on
rehearing en banc, 739 F.2d 993 (5th Cir. 1984) (police shooting); Cottrell
v. Kaysville City, Utah, 994 F.2d 730 (10th Cir. 1993) (strip search)
339 Harper v. McDonald, 679 F.2d 955 (D.C. Cir. 1982) (detention
without warrant or probable cause).
340 McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992) (pointing gun
at head of 9-year-old-child).
341 Cf. United States v. Eight Thousand Eight Hundred and Fifty
Dollars, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) (customs
officers may seize property without a prior hearing but under some
circumstances must institute forfeiture proceedings thereafter).
342 See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961), overruled on other grounds by Monell v. Dep’t of Social Services of
the City of N.Y., 436 U.S. 658, 98 S.Ct. 2018 (1978).
343 The Supreme Court has said that negligence is not enough. See
Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In
cases of non-action, “willful indifference”—conscious omissions to act—is
enough. See, e.g., Tamas v. Dep’t of Social & Health Services, 630 F.3d 833
(9th Cir. 2010).
344 Collins v. City of Harker Heights, Texas, 503 U.S. 115, 112 S.Ct.
1061, 117 L.Ed.2d 261 (1992).
345 E.g., Phillips v. Community Ins. Corp., 678 F.3d 513 (7th Cir.
2012); McCullough v. Antolini, 559 F.3d 1201 (11th Cir. 2009).
346 Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989); Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009).
347 See Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d
271 (1991).
348 Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156
(1992).
349 Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271
(1991) (prison conditions); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976) (medical attention in prison).
350 Deliberate indifference may be an objective standard in some
situations. See City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989) (municipal liability for failure to train employees).
351 Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994); see also Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d
271 (1991).
352 Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994).
353 See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115
L.Ed.2d 271 (1991); Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970,
1977, 128 L.Ed.2d 811 (1994).
354 If a defendant is sued not only on federal civil rights grounds, but
also on state-law grounds, then state-law immunities can be asserted as to
the latter claims. See, e.g., Hagans v. Franklin County Sheriff’s Office, 695
F.3d 505 (6th Cir. 2012); Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012).
355 See § 22.15.
356 If the officer is sued in his “official capacity”, the suit is treated as
one against the entity. If he is sued in his individual capacity, the suit
aims to recover against the officer personally, albeit for actions that were
in a sense official. The distinction has created pitfalls. See Kentucky v.
Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).
357 See § 22.14 on “color of state law.”
358 See Poolaw v. Mercantel, 565 F.3d 721 (10th Cir. 2009); Velazquez
v. City of Hialeah, 484 F.3d 1340 (11th Cir. 2007) (finding fact issues on
whether police officers failed to intervene to stop others’ use of force);
Skrtich v. Thornton, 280 F.3d 1295 (11th Cir. 2002) (Eighth Amendment,
prison officers who watched an unprivileged beating and subject to
liability).
359 See Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009) (failure to
prevent attack by plaintiff’s cellmate an Eighth Amendment violation).
360 See e.g., Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57
L.Ed.2d 895 (1978) (federal administrative law judge carrying out judicial
function); Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d
79 (1998) (city official); Cousins v. Lockyer, 568 F.3d 1063 (9th Cir. 2009)
(California Attorney General absolutely immune from suit under § 1983
based on prosecutorial function). See § 22.12.
361 Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349
(1982).
362 Kovacic v. Villarreal, 628 F.3d 209 (5th Cir. 2010); Cassady v.
Goering, 567 F.3d 628 (10th Cir. 2009) (calling the two-part burden
“strict”); Gonzalez v. City of Elgin, 578 F.3d 526 (7th Cir. 2009).
363 See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L. Ed.
2d 565 (2009); Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L. Ed. 2d
272 (2001).
364 See Messerschmidt v. Millender, 132 S. Ct. 1235, 182 L. Ed. 2d 47
(2012); Ryburn v. Huff, 132 S. Ct. 987, 181 L. Ed. 2d 966 (2012); Safford
Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 129 S. Ct. 2633, 174 L.
Ed. 2d 354, 245 Ed. Law Rep. 626 (2009).
365 Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d
589 (1991) (quoting Malley v. Briggs, 475 U.S. 335 (1986)).
366 See Ashcroft v. al-Kidd,131 S.Ct. 2074, 2083, 179 L.Ed.2d 28
(2011) (plaintiff need not show a case “directly on point, but existing
precedent must have placed the statutory or constitutional question
beyond debate” in order to prove that the right was “clearly established”);
accord, Stanton v. Sims, 134 S.Ct. 3, 187 L.Ed.2d 341 (2013) (per curiam).
367 Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987). Similarly, the officer’s excessive force, as judged by objective
reasonableness, violates the Fourth Amendment, but though an officer
must know that rule, he may not know whether a push or a shove is
excessive force in particular circumstances. To say that a particular shove
establishes a constitutional violation that will govern future conduct is not
to say that the officer should have known that the particular shove was
unconstitutional at the time. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct.
2151, 150 L.Ed.2d 272 (2001); Youngbey v. March, 676 F.3d 1114 (D.C.
Cir. 2012) (reasonable officer could have believed that conducting a
nighttime search without knocking would not violate the Fourth
Amendment).
368 Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S.Ct. 2304,
105 L.Ed.2d 45 (1989). Similarly, a judgment against an individual officer
of the state cannot serve as a basis for reaching state funds. See Hafer v.
Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).
369 Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).
370 Owen v. City of Independence, Mo., 445 U.S. 622, 100 S.Ct. 1398,
63 L.Ed.2d 673 (1980).
371 Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978).
372 E.g., Board of County Comn’rs of Bryant County v. Brown, 520
U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Kelly v. Borough of
Carlisle, 622 F.3d 248 (3d Cir. 2010).
373 Connick v. Thompson, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011)
(Local governments “are not vicariously liable under § 1983 for their
employees’ actions.”) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,
106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)).
374 Cf. Owen v. City of Independence, Mo., 445 U.S. 622, 100 S.Ct.
1398, 63 L.Ed.2d 673 (1980) (some council members and city manager
published accusations, then discharged police chief without a hearing).
375 Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89
L.Ed.2d 452 (1986).
376 See, e.g., Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978);
Griffin v. City of Opa-Locka, 261 F.3d 1295 (11th Cir. 2001) (city’s
indifference to sexual harassment by its city manager).
377 See, e.g., Moldowan v. City of Warren, 578 F.3d 351 (6th Cir.
2009); Allen v. Muskogee, Oklahoma, 119 F.3d 837 (10th Cir. 1997); see
also Connick v. Thompson, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011).
378 Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662
(1986) (due process); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976) (equal protection).
379 See City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197,
103 L.Ed.2d 412 (1989).
380 See Collins v. City of Harker Heights, Texas, 503 U.S. 115, 112
S.Ct. 1061, 117 L.Ed.2d 261 (1992); Board of County Com’rs of Bryan
County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
381 City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989).
382 E.g., Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008); Flores v.
Cameron County, Tex., 92 F.3d 258 (5th Cir. 1996) (remand to determine
deliberate indifference after verdict for the plaintiff); Atchinson v. District
of Columbia, 73 F.3d 418 (D.C. Cir. 1996) (reversing dismissal of claim). To
show causation, the plaintiff must show that proper training would have
prevented the constitutional injury. See Pineda v. City of Houston, 291
F.3d 325 (5th Cir. 2002).
383 Okin v. Village of Cornwall-on-Hudson Police Dept., 577 F.3d 415
(2d Cir. 2009).
384 City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989).
385 Griffin v. City of Opa-Locka, 261 F.3d 1295 (11th Cir. 2001).
386 E.g., Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997) (although police
officer knew that wife was at risk if he revealed that she had sought police
protection from husband’s abuse, he told husband, who then killed wife’s
children and himself, but neither this nor a climate of police disapproval of
domestic violence rights sufficed to show discriminatory intent necessary
for equal protection claim); Eaglesteon v. Guido, 41 F.3d 865 (2d Cir. 1994)
(no showing that failing to protect woman from abusive husband was in
furtherance of a purpose to discriminate against women); Ricketts v. City
of Columbia, Mo., 36 F.3d 775 (8th Cir. 1994) (failure to arrest abusive
husband; no evidence of intentional discrimination, thus no equal
protection violation);
387 Board of County Com’rs of Bryan County v. Brown, 520 U.S. 397,
117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
388 County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140
L.Ed.2d 1043 (1998) (high speed chase).
389 Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796,
162 L.Ed.2d 658 (2005) (victim has no constitutionally-protected property
interest in police enforcement of a protective order); DeShaney v.
Winnebago County Dep’t of Social Services, 489 U.S. 189, 109 S.Ct. 998,
103 L.Ed.2d 249 (1989); Price-Cornelison v. Brooks, 524 F.3d 1103 (10th
Cir. 2008) (refusal to enforce protective order did not violate right to equal
protection). On the lack of duty to take affirmative action for the
protection of others, see Chapters 35 & 36.
390 Wyke v. Polk County School Board, 129 F.3d 560 (11th Cir. 1997).
591
Chapter 23
FAMILY MEMBERS AND CHARITIES

Analysis
A. FAMILY MEMBERS
B. CHARITIES
__________
A. FAMILY MEMBERS
Wives’ disabilities at earlier common law. At earlier common
law, although a spouse might have claims against an outsider for
interference with marital rights,1 claims by one spouse against the
other were almost nonexistent. The earlier common law subjugated
wives to their husbands by viewing the marital couple as a single
entity. In the legal unity of husband and wife, the husband was in
charge. He was entitled to possess and draw the profits from his
wife’s properties, for example, and even to “discipline” her. In the
formal, hobbled reasoning of some common law periods, the couple
was regarded as one legal entity, with the result that neither
individual could sue the other.2
Married Women’s Property Acts. Common law rules were
improved somewhat in the 19th century by statutes called the
Married Women’s Property Acts. These acts allowed the wife to
maintain a legal action against her husband to vindicate her
property interests. For example, she could sue her husband for
negligent injury to her property or for its conversion. Courts held
that the statutes destroyed the legal identity of the two persons so
that wife and husband could sue each other.
Immunities remaining after the statutes. For a long time,
however, personal torts fell under the old rule, so that neither
spouse could sue the other for negligent or even intentional injury.
Courts argued that even though the Married Women’s Act had
individualized the rights of the two parties to the marriage,
immunity stood intact, mainly on the theory that suits between
husband and wife would be fictitious and fraudulent and that in
any event they would destroy the peace and harmony of the home.3
Translated into today’s language, courts argued that a husband
could not be
592
challenged in court for beating his wife because the marriage

was entitled to “privacy” and freedom from judicial scrutiny.4
Rejecting the fraud and family harmony arguments. Courts
have now widely rejected or discounted the arguments for
immunity. Although some claims between spouses might be
fraudulent, fraud is also a possibility with suits among friends.
Even strangers on a train could cook up a fictitious claim. So courts
gradually recognized that the way to deal with fraudulent spousal
claims may be to expose the fraud rather than to bar good claims
along with bad ones. The family disruption argument has never
seemed very persuasive. In many cases, the peace and harmony of
the home that courts sought to protect seems not to have existed,
or if it did, was destroyed by the tortious behavior for which the
wife sued.
Abolishing the blanket immunity. In the latter half of the 20th
century, most courts removed the blanket immunity for spousal
suits. A large number of these courts simply apply ordinary tort
rules to suits between spouses, at least in personal injury cases
and frequently in all cases.5 The Restatement reflects this
approach in its simple provision that no spousal immunity
remains.6
Some courts have replaced the blanket immunity with a screen
that filters out some but not all claims for spousal torts. For
instance, some courts initially abolished the immunity only for
injuries inflicted by the use of automobiles.7 But it is hard to draw
a rational line at automobile cases, and as the decisions came
down, courts gradually moved to a more general abolition of the
immunity, so that ordinary tort rules increasingly apply.8 Thus
courts have said that one spouse might be subject to liability to the
other for invasion of privacy,9 or for negligently communicating a
sexually transmitted disease,10 or for negligently causing falls,11 as
well as for causing vehicular injuries. When civil unions were
recognized, a “spouse” for purposes of spousal immunity included
partners to a civil union as well as well as marital partners.12
593
Domestic violence torts. Intentional torts of a spouse, often in

the form of domestic violence, easily call for liability.13 The
Seventh Circuit held that an earlier Illinois immunity for
intentional torts was unconstitutional since it could not rationally
serve the purpose of protecting family harmony to immunize these
torts.14 When the issue has been presented in recent years, state
courts have usually abolished the immunity for intentional torts.15
State domestic violence statutes also sometimes support a claim.16
Often, victims of domestic violence have little incentive to sue, even
after divorce or separation, since intentional torts are usually not
covered by an insurance policy and the perpetrator’s assets may be
hard to reach. This arguably leads to woeful under-enforcement of
anything like adequate minimum standards. Dissatisfaction,
especially with the position of women under this regime, has led to
proposals for some kind of mandatory insurance covering these
torts.17
Rise and Decline of the Parental Immunity
History of parental immunity. The early common law that
ascribed a single legal identity to husband and wife had no
application to suits between parents and children. Consequently
writers have supposed that children could sue parents, at least for
torts to property. In 1891, however, Mississippi decided Hewlett v.
George,18 which spawned a general rule in American law that
parents and those in loco parentis19 could not be held liable for
either intentional or negligent torts to their minor, unemancipated
children. The blanket immunity has now been discarded in
Mississippi, the state of its origin, and in most others.
Confusion of immunity and privilege. The blanket immunity
may have gained its standing from the confusion of immunities
with privileges. Immunity depends only upon the status of the
parties; privilege depends upon justifications for the defendant’s
actions. Parents are undoubtedly privileged to discipline their
children, for example, but that is hardly a reason to say that
parents are free to beat or rape their children.20
Exceptions. Over the half century or so after the immunity was
introduced, courts gradually seem to have recognized the
distinction, because they created a number of exceptions to the
immunity. For example, courts allowed a cause of action when the
child
594
was injured in the course of the parent’s business activity21 or

by acts that were tortious to people generally and not merely to the
child.22 Courts also allowed recovery for intentional or willful torts,
and even where the immunity otherwise remains, they still do.23
Partial abrogation of immunity: The Goller formula. In the
second half of the twentieth century, most states removed the
blanket immunity of parents and children.24 Some of them
addressed only or mainly automobile cases,25 but others attempted
a more general and principled approach. The trend was led by
Wisconsin’s 1963 decision in Goller v. White.26 The Wisconsin
court’s abrogation of immunity, however, left immunity standing in
two situations. First, parents would be immune whenever the
alleged negligent act involved an exercise of parental authority
over the child. Second, the immunity would remain where the
alleged negligent act involved an exercise of parental discretion
with respect to the provision of food, clothing, housing and other
care.
A number of other courts adopted the Wisconsin formula
retaining the immunity when issues of parental authority and
discretion were involved27 or, as sometimes said, for acts that are
inherent in the parent-child relationship.28 A variation on that
rule, especially associated with New York cases, retains immunity
for injuries resulting from parental “supervision” or its absence.29
These formulas have immunized parents in some fairly horrible
cases. For example, an Illinois case held that foster parents’
decision to place a three-year-old child in the “upper half of a
divided shelf of a wooden cabinet inside a bedroom closet at [their]
home with the door closed” with inadequate ventilation and heat
fell within the immunity so that there was no liability for the
child’s death.30 Such an interpretation of the Wisconsin-type rules
leave an enormous fortress of immunity in place.
Complete abrogation of immunity. A number of courts have
rejected the reserved immunity and adopted an ordinary
negligence test.31 They take the position that
595
ordinary negligence rules will provide protections for the

parents’ rightful authority and discretion because appropriate
latitude for parental judgment and authority is built into the
reasonable person standard. They say that the supervision
immunity and the Wisconsin exceptions are vague and protect
arbitrary and harmful parental conduct. In contrast, the “standard
of reasonable care under the circumstances is well understood in
tort law.”32 Under the ordinary negligence rule, a parent might be
liable for brain damage to an infant child left alone in a swimming
pool, even though the negligence involved “supervision.”33
However, a number of courts that permit parental liability note
concerns about respecting cultural pluralism.34
Rationales for immunity: traditional rationales. Courts that still
retain a substantial immunity for parents have invoked the
historical rationales of domestic tranquility, family harmony, and
fraud prevention. They have also said that the immunity is needed
to prevent subversion of parental authority or discipline.
Rationales: inheritance and family funds. Courts have also
suggested that without the immunity the negligent parent liable
for the child’s injury might later inherit the child’s recovery and
that parental liability might deplete family funds needed to foster
other interests of the family. Since most suits will be brought when
the parent is insured, the depletion of funds may not be so likely.35
The problem of the possible inheritance by the wrongdoing parent
of the child’s recovery is a significant one, but can be dealt with
directly.36
Rationales: parental freedom. The last37 argument for immunity
—or for some kind of legal buffer—is that courts must protect
parental freedom to rear children in accordance with their own
beliefs and attitudes. This view has led to the partial retention of
immunity under the Wisconsin and New York rules, but in fact all
courts, including those that have flatly abolished the immunity,
agree with the aim.38 The only question is whether categories like
“supervision” or “parental discretion” will help judges focus on
policies supporting parental freedom better than the ordinary
negligence rules. The negligence rules have the advantage of
focusing on the circumstances of the particular case.
Effect of parental liability on the child’s recovery from other
tortfeasors. Although the effect of abrogating parental immunity is
often to permit an injured child to recover against a parent or the
parent’s insurance policy, with the advent of comparative
apportionment, abrogation of parental immunity can also make it
more difficult for a child to recover against other tortfeasors. In
some circumstances, the child is better able
596
to recover from other tortfeasors if parents are immune from

suit.39 The extent of parental immunity and the ability of other
defendants to invoke parental responsibility need not be identical.
In at least one case, a court allowed tortfeasors to assert parental
responsibility to diminish liability even though the parent would
have been immune from the child’s direct suit.40 A court might
more easily embrace the reverse proposition—that parental
liability can be asserted by an injured child but not by other parties
to the suit.
B. CHARITIES
General principle. General principles of tort law hold that each
person is responsible for the harm he negligently causes. He is not
relieved of liability for negligence merely because on other
occasions he has behaved with charity and generosity towards
others. From time to time, however, courts or legislatures appear
to forget these principles and relieve certain defendants of liability
for negligently caused harm on the ground that, although their
conduct was negligent, the injury was inflicted in the course of
kindness or charity. For example, guest statutes once relieved the
negligent automobile driver of all liability to his guest. The guest
was expected to be so grateful for the ride that the little matter of
negligent injury should be forgotten.
Risk-utility balance distinguished. Perhaps the impulse to
relieve the good-hearted defendant results from an inadequate
understanding of the reasonable person standard. That standard
itself gives the defendant full credit for the usefulness of the act
that causes harm. It does so by providing that he is not at fault at
all (and hence is not liable) when his harm-causing act would be
overall more useful than harmful. He should not be deterred
merely because his act entails small and unavoidable risks. But
that is not the same as saying that the defendant should be
relieved of responsibility for reasonably avoidable risks resulting
from unreasonable and harmful acts, or that his merit as a good
citizen should exempt him from the legal rules. In fact, the risk-
utility balance assesses the merits of the case, while the immunity
prevents a consideration of the merits. Nevertheless, the idea of
affording special privileges to benevolent people for unreasonable
behavior becomes law from time to time. The old guest statutes
represent one example. The immunities of charities represent
another.
Charitable immunity: history. The immunity of charitable
organizations was recognized in a 19th century English dictum,41
then discarded by the House of Lords.42 The original case did not
even involve personal injury, only a claim by a beneficiary of the
charity to share in the charity’s program. Its logic had no
application to corporate charities, as distinct from trusts, but
neither its repudiation in England, nor its origin
597
outside the realm of injury law, nor its irrelevance to corporate

charities prevented its adoption in America.43 As a result, a wide
range of charities were allowed to pursue their work without
reasonable care and without responsibility for the harms caused by
their negligence. At various times the immunity has extended to
the Boy Scouts,44 museums of various kinds,45 a Jewish
Community Center,46 a Confederate Memorial Association,47 a
Little League Baseball organization,48 and to churches,49 private
schools,50 and hospitals.51 Which entities qualify as charities for
purposes of charitable immunity is a subject of continued
litigation.52
Rationales. Courts gave different reasons, or combinations of
reasons, for the immunity. They said variously that liability would
divert trust funds for purposes inconsistent with the charity and
its donor’s intent; that ordinary rules of vicarious liability should
not apply to impose liability for the acts of employees; that
beneficiaries of a charity should not recover from it because they
must waive their claims or assume the risk of negligence; and that
donations to charities should not be discouraged by imposing
liability for fault; and that liabilities might terminate a charity’s
good works.53
Rationales attacked. These reasons were individually deficient,
as many judges and other critics have pointed out repeatedly. As to
the trust fund argument, most charities are corporations, not
trusts. More importantly, two people by contract (or donation in
trust) cannot dictate their responsibility for torts to those not a
party to their arrangement. The argument that charities were not
liable under the doctrine of respondeat superior, on the ground
that its employees were working for public good rather than for the
charity, seems spurious on its face and certainly illogical in the
light of the charity’s vicarious liability to strangers.54 The waiver
or assumed risk argument was at best fictional. Worse, it operated
to remove protection for those who most needed reasonable care.
But even then it did not explain all the cases, because beneficiaries
of an individual charity (as opposed to a corporate charity) were
allowed to recover for negligence, although they assumed the risk
as much as beneficiaries of corporations. Further, the immunity
applied even to infants who could not possibly have assumed the
598
risk. The “public policy” argument that charities might go out of

business if held liable was answered by observing that only the
cost of reasonable behavior was entailed. After all, nothing
requires a charitable hospital to inflict burns upon a newborn
infant in her bassinet.55 If reasonable care is too much to ask of
charities, the cost of insurance is not. Perhaps a more important
answer was that if a charity causes so much harm by its negligence
that a requirement of reasonable care would drive it out of
business, then perhaps it should not be in business at all for in that
case it is doing more harm than good.
Doctrine as a subsidy. Beyond the individual defect of each
supposed reason for the immunity, all of the reasons were founded
directly or indirectly on the policy of subsidizing organizations
denominated as charities. Courts accomplished the subsidy by
allowing charities to avoid financial responsibility for unreasonable
and harmful acts. But these subsidies were not paid by the state;
they were paid by the victims whose recovery was denied—through
a “coerced donation” of their right of recovery.56 Not surprisingly,
courts ultimately refuted each of the various rationales for the
immunity.57
Modifications or exceptions to immunity. Courts first developed
a large number of exceptions or modifications that varied from
state to state. Most adopted one or more of the following rules.
They said that charities would be liable (1) to the extent they have
assets that form no part of the charitable trust assets, for example,
to the extent that liability was covered by insurance, or had assets
not part of the charitable funds;58 (2) for their torts to strangers,
that is, to persons who do not receive the benefactions of the
charity;59 (3) for the torts of upper level management, including
negligence in hiring or retaining dangerous employees;60 (4) to
beneficiaries of the charity who actually pay for the services that
cause harm, at least to the extent that a judgment can be enforced
against non-charitable assets,61 and for gross negligence or willful
and wanton negligence.62
Rejecting immunity. Most American courts63 or legislatures64
have now rejected the immunity. The Restatement simply says no
such immunity exists.65 Many of the
599
decisions arose out of suits against charitable hospitals, but the
reasoning was broad enough to eliminate the immunity for other
charitable organizations as well.66 In addition, some of the states
that retain the immunity limit its effect by defining charities with
increasing rigor67 and by removing the immunity to the extent that
insurance protects the charity.68 Because state law regarding
immunity differs so substantially between states, which state’s law
applies can be contested and outcome determinative.69
Immunity remnants. Once the courts abolished or rejected the
immunity, however, legislatures sometimes reinstated the
immunity or some remnant of it for particular cases.70 Legislatures
in a number of states impose a cap on damages recoverable against
charitable organizations.71 In addition, several states retain the
immunity with whatever modifications or exceptions have been
applied in those states.72 The rules are so deeply wrinkled that
classification is unreliable. Massachusetts, for example, permits a
recovery capped at such a low level that for most purposes
Massachusetts could be classified as a state retaining the
immunity.73 On the other hand, Maine purports to retain the
immunity but defines charities narrowly.74 And its charitable
immunity statute was found to be inapplicable to intentional
torts.75
Immunities for classes of people. The traditional charitable
immunity protected trusts and then charitable or nonprofit
corporations. Individuals, however, have never enjoyed general
protection from liability merely because they were engaged in
charitable work when they negligently caused harm.76 However,
legislatures have often been
600
prevailed upon to enact immunities or privileges for particular

classes of persons. One thread that runs through many statutes is
that persons who act in specified charitable ways either deserve
protection against legal responsibility or should be given that
protection to encourage their charity.
Individual charitable acts. These statutes differ from the
traditional common law charitable immunity in several important
ways. First, many of them cover only particular charities or acts of
charity. Second, they often apply to individuals. Third, not all of
the statutes enact a flat immunity; some merely lower the
standard of care owed by a charitable individual or organization.
One prominent group of statutes is medical Good Samaritan
statutes which relieve medical personnel and sometimes others of
any obligation of due care in medical emergencies.77 In addition,
recreational use statutes, limiting a landowner’s standard of care
to those who use the land without charge, have been enacted
almost everywhere.78
Favored groups. More recently, statutes have either enacted
immunities or lowered standards of care for particular groups
favored by the legislature, for example emergency-room doctors.79
Or the statutes protect those who cause harm while acting as a
volunteer for particular charities. Volunteers to libraries,80 athletic
programs81 horseback riding programs82 and bingo games and
raffles83 are examples. Architects and engineers who provide post-
emergency inspections may enjoy special protections.84 Also,
donors of food to non-profit organizations are now receiving
protections from liability,85 and the non-profit organization that
distributes food may be similarly protected.86 Again, the statutes
may lower standards of care without conferring a complete
immunity.
Broad protection for volunteers. One recent type of legislation
protects virtually all volunteers for work in non-profit activities,
and sometimes boards of directors as well.87 Courts may be
recognizing similar immunities for individuals.88 In 1997, Congress
enacted a volunteer protection statute that eliminates most
potential liability of volunteers for “nonprofit” organizations unless
the volunteer is willfully or grossly negligent. The term nonprofit
may include a number of organizations such as the Chamber of
Commerce that would not necessarily have been regarded as
charitable.89
601
As broad as this shield is, however, liability remains for most

ordinary motor vehicle negligence and for willful misconduct or
gross negligence.90 Congress actually enacted an argument for this
statute, asserting that without its protection, volunteers would be
discouraged from providing their services to nonprofit
organizations because of “unwarranted litigation costs” and other
concerns.91 The statute is thus one of a number that come under
the general heading of “tort reform,” aimed at overall reduction in
liabilities. Although the statute preempts state law, states are
permitted to opt out of the statute under certain circumstances.92
________________________________
1 As to claims against third persons for interference with family
relationships, see § 29.11 (loss of consortium) and Chapter 40 (alienation
of affection and the like).
2 There are many good brief summaries of this abysmal history. See
Price v. Price, 732 S.W.2d 316 (Tex. 1987); Restatement Second of Torts §
895F cmts. b and c (1979).
3 See Carl Tobias, Interspousal Tort Immunity in America, 23 Ga.
L. Rev. 359, 441 (1989) (listing judicial concerns over (1) marital harmony,
(2) fraud and collusion, (3) the need to defer to the legislature, (4) excessive
and frivolous claims, and (5) the availability of alternative remedies).
4 See Reva B. Siegel, “The Rule of Love”: Wife Beating as
Prerogative and Privacy, 105 Yale L.J. 2117 (1996).
5 E.g., Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957) (relying
on Married Women’s Property Act); Klein v. Klein, 58 Cal.2d 692, 376 P.2d
70, 26 Cal.Rptr. 102 (1962) (compensation for tort is the fundamental
principle in the absence of compelling policy against it); Waite v. Waite,
618 So.2d 1360 (Fla. 1993); Boone v. Boone, 345 S.C. 8, 546 S.E.2d 191
(2001) (immunity was so repugnant that court would refuse to apply its
normal choice of law rule to injury that occurred in Georgia, but would
apply the South Carolina rule permitting spousal suits instead); Ellis v.
Estate of Ellis, 169 P.3d 441 (Utah 2007) (rejecting immunity rationales,
and holding that interspousal immunity has been abrogated for all tort
claims by Married Women’s Act); Price v. Price, 732 S.W.2d 316 (Tex.
1987). Statutes abolish the immunity in some states. E.g., Haw. Rev. Stat.
§ 572–28; 750 Ill.Comp.Stat. 65/1; N.C. Gen. Stat. § 52–5.
6 Restatement Second of Torts § 895F(1) (1979).
7 E.g., Fernandez v. Romo, 132 Ariz. 447, 646 P.2d 878 (1982).
8 See Brown v. Brown, 381 Mass. 231, 409 N.E.2d 717 (1980);
Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978).
9 Miller v. Brooks, 123 N.C.App. 20, 472 S.E.2d 350 (1996).
10 S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. 1986); cf. John B. v.
Superior Court, 38 Cal.4th 1177, 137 P.3d 153, 45 Cal.Rptr. 3d 316 (2006).
See Kristyn J. Krohse, Note, No Longer Following the Rule of Thumb—
What to Do with Domestic Torts and Divorce Claims, 1997 U. Ill. L. Rev.
923, 929 (1997).
11 Klein v. Klein, 58 Cal.2d 692, 376 P.2d 70, 26 Cal.Rptr. 102
(1962).
12 Conn. Gen. Stat. § 46b–3800 (2005) (“Wherever in the general
statutes the terms ‘spouse’, ‘family’, ‘immediate family’, ‘dependent’, ‘next
of kin’ or any other term that denotes the spousal relationship are used or
defined, a party to a civil union shall be included in such use or
definition”).
13 See generally Douglas D. Scherer, Tort Remedies for Victims of
Domestic Abuse, 43 S.C. L. Rev. 543 (1992).
14 Moran v. Beyer, 734 F.2d 1245 (7th Cir. 1984).
15 E.g., Stevens v. Stevens, 231 Kan. 726, 647 P.2d 1346 (1982);
Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978).
16 See N.J. Stat. Ann. § 2C:25–29(b)(4).
17 Jennifer Wriggins, Domestic Violence Torts, 75 S. Cal. L. Rev. 121
(2001).
18 Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891) (also styled
Hewellette v. George), overruled in Glaskox v. Glaskox, 614 So.2d 906
(Miss. 1992).
19 Typically full-time caretakers who act in the role of parents. See
Queen v. Carey, 210 Ga.App. 41, 435 S.E.2d 264 (1993) (grandparent);
McGee v. McGee, 936 S.W.2d 360 (Tex. App. 1996) (step parent); but cf.
Zellmer v. Zellmer, 164 Wash.2d 147, 188 P.3d 497 (2008) (in loco parentis
status of step parent should not be lightly be inferred; in loco parentis
status was a question of fact); Brabant v. Republic Servs., Inc., 800 N.E.2d
200 (Ind. Ct. App. 2003) (immunity is correlative with responsibility; if
step parent has not adopted child and thus committed to his care, he does
not get the immunity).
20 Roller v. Roller, 37 Wash. 242, 79 P. 788 (1905), overruled in part,
Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149 (1952) (rejecting Roller’s
“absolute” immunity; no immunity as to nonparental transactions).
21 E.g., Dzenutis v. Dzenutis, 200 Conn. 290, 512 A.2d 130 (1986);
Brabant v. Republic Servs., Inc., 800 N.E.2d 200 (Ind. Ct. App. 2003).
22 See Grivas v. Grivas, 113 A.D.2d 264, 496 N.Y.S.2d 757 (1985);
Hoppe IV v. Hoppe III, 281 A.D.2d 595, 724 N.Y.S.2d 65 (2001).
23 Newman v. Cole, 872 So.2d 138 (Ala. 2003); Herzfeld v. Herzfeld,
781 So.2d 1070 (Fla. 2001) (exception for alleged sexual abuse of child);
Fager v. Hundt, 610 N.E.2d 246 (Ind. 1993) (a parent has no immunity for
sexual abuse of his child under the “intentional felonious conduct”
standard); Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983); Connolly v.
Holt, 332 N.C. 90, 418 S.E.2d 511 (1992) (repeated rapes and sexual
molestation); Pavlick v. Pavlick, 491 S.E.2d 602 (Va. 1997).
24 See Lickteig v. Kolar, 782 N.W.2d 810 (Minn. 2010) (discussing
state’s abrogation of intrafamilial immunity and establishing that the
immunity does not apply between siblings).
25 See Smith v. Holmes, 921 So.2d 283 (Miss. 2005); Verdier v.
Verdier, 219 S.W.3d 143, 364 Ark. 287 (2005) (recognizing the state’s
exception to parental immunity for “a direct-action suit against a motor
vehicle liability insurance carrier for uninsured motorist coverage … when
insurance benefits are the damages requested,” but refusing to create an
exception to parental immunity when homeowners insurance is available
to cover the loss).
26 Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963).
27 Sears, Roebuck & Co. v. Huang, 652 A.2d 568 (Del. 1995); Bonin v.
Vannaman, 261 Kan. 199, 929 P.2d 754 (1996); Wagner v. Smith, 340
N.W.2d 255 (Iowa 1983); Broadwell v. Holmes, 871 S.W.2d 471 (Tenn.
1994); Jilani v. Jilani, 767 S.W.2d 671 (Tex. 1988).
28 Cates v. Cates, 156 Ill.2d 76, 619 N.E.2d 715 (1993).
29 See Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324
N.E.2d 338 (1974). Zellmer v. Zellmer, 164 Wash.2d 147, 188 P.3d 497
(2008).
30 Commerce Bank v. Augsburger, 288 Ill.App.3d 510, 680 N.E.2d
822, 223 Ill.Dec. 872 (1997).
31 Broadbent v. Broadbent, 184 Ariz. 74, 907 P.2d 43 (1995); Gibson
v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 293, 479 P.2d 648 (1971);
Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980); Hartman v. Hartman,
821 S.W.2d 852 (Mo. 1991); Kirchner v. Crystal, 15 Ohio St.3d 326, 474
N.E.2d 275 (1984); Winn v. Gilroy, 296 Or. 718, 681 P.2d 776 (1984).
32 E.g., Hartman v. Hartman, supra note 31, 821 S.W.2d at 857.
33 Broadbent v. Broadbent, supra note 31.
34 Id. (Feldman, J., concurring). Cf. Buono v. Scalia, 358 N.J.Super.
210, 817 A.2d 400 (2003), aff’d, 179 N.J. 131, 843 A.2d 1120 (2004) (court
emphasized that in supervision cases the governing policy was “respect for
differences in parenting philosophies and for the degree to which parents
understand the uniqueness of their own children”).
35 A joint tortfeasor might implead an uninsured parent for
contribution and thus indirectly deplete family coffers. See Holodook v.
Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974).
36 Broadbent v. Broadbent, 184 Ariz. 74, 907 P.2d 43 (1995).
37 Courts have generated longer lists, as in Wagner v. A.O. Smith,
340 N.W.2d 255 (Iowa 1983), but they appear merely to offer alternate
labels for essentially similar arguments.
38 Broadbent v. Broadbent, 184 Ariz. 74, 907 P.2d 43 (1995)
(Feldman, J., concurring).
39 Sias ex rel. Mabry v. Wal-Mart Stores, Inc., 137 F.Supp.2d 699,
702 (S.D. W.Va. 2001) (after child was injured on a bike purchased at Wal-
Mart, parental immunity barred counterclaim for negligent supervision;
West Virginia’s parental immunity doctrine barred not only claims by a
child against a parent for negligence, but also “defensive assertions of
contributory negligence against a parent for injuries to a child”).
40 In Doering ex rel. Barret v. Copper Mountain, Inc., 259 F.3d 1202
(10th Cir. 2001), children on a ski slope while under the supervision of
their mother collided with the resort’s grooming equipment and suffered
injury. Although Colorado courts recognize a qualified immunity doctrine
that prevents children from suing parents for simple negligence, this
immunity did not prevent the mother from being considered a non-party
joint tortfeasor whose alleged contributory negligence could be considered
by the jury. See also Landis v. Hearthmark, LLC, 750 S.E.2d 299 (Va.
2014).
41 Feoffees of Heriot’s Hosp. v. Ross, 8 Eng. Rep. 1508 (H.L. 1846),
relying in part on an earlier case.
42 Mersey Docks & Harbour Bd. of Trustees v. Gibbs, 111 Eng. Rep.
1500 (1866).
43 Beginning with McDonald v. Mass. Gen. Hosp., 120 Mass. 432
(1876), overruled in part by Colby v. Carney Hosp., 254 N.E.2d 407 (Mass.
1969).
44 Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 480 N.E.2d 679,
491 N.Y.S.2d 90 (1985) (New Jersey law).
45 Morales v. N.J. Acad. of Aquatic Sciences., 302 N.J.Super. 50, 694
A.2d 600 (1997) (aquarium).
46 Abramson v. Reiss, 334 Md. 193, 638 A.2d 743 (1994).
47 Bodenheimer v. Confederate Mem’l Ass’n, 5 F.Supp. 526 (E.D. Va.
1932).
48 Pomeroy v. Little League Baseball of Collingswood, 142
N.J.Super. 471, 362 A.2d 39 (1976).
49 Rev. Thomas Paprocki, As the Pendulum Swings from Charitable
Immunity to Bankruptcy, Bringing it to Rest with Charitable Viability, 48
J. Cath. Legal Stud. 1 (2009).
50 E.g., Ettlinger v. Trustees of Randolph-Macon Coll., 31 F.2d 869
(4th Cir. 1929).
51 E.g., Howard v. S. Baltimore Gen. Hosp., 191 Md. 617, 62 A.2d
574 (1948).
52 Mayfield-Brown v. Sayegh, 667 S.E.2d 785, 276 Va. 555 (2008)
(university’s medical practice group was not immune from tort liability
under doctrine of charitable immunity); Univ. of Va. Health Servs. Found.
v. Morris, 657 S.E.2d 512, 275 Va. 319 (2008); Tonelli v. Bd. of Educ. of
Twp. of Wycoff, 888 A.2d 433, 185 N.J. 438 (2005) (township school board
was not entitled to charitable immunity under state act); Ola v. YMCA of
S. Hampton Roads, Inc., 270 Va. 550, 621 S.E.2d 70 (2005) (YMCA
recreation center was immune from liability for sexual assault of child in
its program based on charitable immunity doctrine).
53 For a discussion of state policies which favor charitable immunity
and those that oppose it, see P.V. ex. rel. T.V. v. Camp Jaycee, 962 A.2d
453, 197 N.J. 132 (2009). See also Rev. Thomas Paprocki, As the
Pendulum Swings from Charitable Immunity to Bankruptcy, Bringing it
to Rest with Charitable Viability, 48 J. Cath. Legal Stud. 1 (2009)
(outlining the hundreds of millions of dollars paid by the Catholic Church
to settle abuse claims and expressing concern about charitable programs
lost and effect on religious practice).
54 See Miss. Baptist Hosp. v. Holmes, 214 Miss. 906, 933, 55 So.2d
142, 153 (1951).
55 Durney v. St. Francis Hosp., Inc., 46 Del. 350, 83 A.2d 753 (1951).
56 Albritton v. Neighborhood Ctrs. Ass’n for Child Dev., 12 Ohio
St.3d 210, 466 N.E.2d 867, 871 (1984).
57 The classic criticism, which more or less turned immunity
thinking around, is President and Directors of Georgetown College v.
Hughes, 130 F.2d 810 (D.C. Cir. 1942). One of the best summaries of major
arguments against immunity is Note, The Quality of Mercy: ‘Charitable
Torts’ and Their Continuing Immunity, 100 Harv. L. Rev. 1382 (1987).
58 See, e.g., Me.Rev.Stat.Ann. tit. 14, § 158 (insurance coverage is a
waiver of immunity); Picher v. Roman Catholic Bishop of Portland, 974
A.2d 286 (Me. 2009); cf. Md. Ins. Code § 19–103. Self-insurance, or a
reserve for contingencies, may or may not qualify as insurance that waives
immunity. Archer v. Sisters of Mercy Health Sys., St. Louis, Inc., 294
S.W.3d 414, 375 Ark. 523 (2009) (does qualify); Ponder v. Fulton-DeKalb
Hosp. Auth., 256 Ga. 833, 353 S.E.2d 515 (1987) (does not).
59 E.g., Alabama Baptist Hosp. Bd. v. Carter, 226 Ala. 109, 145 So.
443 (1932); Byrd Theatre Found. v. Barnett, 754 S.E.2d 299 (Va. 2014).
60 Harrell v. Louis Smith Mem’l Hosp., 197 Ga.App. 189, 397 S.E.2d
746 (1990); J. J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 372
S.E.2d 391 (1988).
61 Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 353 S.E.2d
515 (1987).
62 Cowan v. Hospice Support Care, Inc., 268 Va. 482, 603 S.E.2d 916
(2004).
63 E.g., President & Dirs. of Georgetown Coll. v. Hughes, 130 F.2d
810 (D.C. Cir. 1942) (the leading case); Albritton v. Neighborhood Ctrs.
Ass’n for Child Dev., 12 Ohio St.3d 210, 466 N.E.2d 867 (1984). Janet
Fairchild, Annotation, Tort Immunity of Nongovernmental Charities—
Modern Status, 25 A.L.R.4th 517 (1981).
64 Conn. Gen. Stat. § 52–557d.
65 Restatement Second of Torts § 895E (1979).
66 See Friend v. Cove Methodist Church, Inc., 65 Wash.2d 174, 396
P.2d 546 (1964); Widell v. Holy Trinity Catholic Church, 19 Wis.2d 648,
121 N.W.2d 249 (1963).
67 The organization may not get the immunity if its articles of
incorporation fail to reflect a charitable purpose, perhaps even an
exclusive one. See Snyder v. Am. Ass’n of Blood Banks, 144 N.J. 269, 676
A.2d 1036 (1996). Likewise, in some states if the charity receives income
from sources other than charitable donations. Ouachita Wilderness Inst.,
Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997) (organization for
rehabilitation of juvenile offenders was not a charitable organization in
part because it received state funds, hence was not a charity dependent
upon donations); Lutheran Hosps. & Homes Soc’y of Am. v. Yepsen, 469
P.2d 409 (Wyo. 1970). Arkansas adopted a flexible definition of charities,
using a number of factors. Masterson v. Stambuck, 321 Ark. 391, 902
S.W.2d 803 (1995).
68 E.g., Me. Rev. Stat. Ann. tit. 14, § 158. Self-insurance may or may
not qualify for this exception. Compare Archer v. Sisters of Mercy Health
Sys., St. Louis, Inc., 375 Ark. 523, 294 S.W.3d 414 (2009), with Coulombe
v. Salvation Army, 790 A.2d 593 (Me. 2002).
69 P.V. ex. rel. T.V. v. Camp Jaycee, 962 A.2d 453, 197 N.J. 132
(2009) (applying choice of law principles in the charitable immunity
context).
70 For instance, Rhode Island rejected the immunity early on, but
the legislature enacted a statutory immunity for charitable hospitals.
Later still, however, the legislature recanted and provided for ordinary
liability. See, reflecting this history, Hodge v. Osteopathic Gen. Hosp. of
R.I., 107 R.I. 135, 265 A.2d 733 (1970); R.I. Gen. Laws § 9–1–26.
71 See Md. Code Ann. Cts. & Jud. Proc. § 5–632 (as to hospitals
carrying insurance of at least $100,000, that sum is the cap on liability);
S.C. Code § 33–56–180 ($250,000); Tex. Civ. Prac. & Rem. Code § 84.006
($500,000/$1,000,000). The caps do not apply in all cases.
72 Hemenway v. Presbyterian Hosp. Ass’n, 161 Colo. 42, 419 P.2d
312 (1966).
73 Mass. Gen. Laws Ann. ch. 231, § 85 (2012) ($20,000 plus costs, but
for medical malpractice actions up to $100,000).
74 Child v. Central Maine Med. Ctr., 575 A.2d 318 (Me. 1990).
75 Picher v. Roman Catholic Bishop of Portland, 974 A.2d 286 (Me.
2009) (allowing fraudulent concealment claim against bishop based on
child sexual abuse by priest); cf. Hardwicke v. Am. Boychoir Sch., 188 N.J.
69, 902 A.2d 900 (2006) (same; New Jersey). See also Matthew Cobb, A
Strange Distinction: Charitable Immunity and Clergy Sexual Abuse in
Picher v. Roman Catholic Bishop of Portland, 62 Me. L. Rev. 703 (2010).
76 See President & Dirs. Of Georgetown Coll. V. Hughes, 130 F.2d
810, 814 (D.C. Cir. 1942).
77 Discussed in § 21.13.
78 See § 20.10.
79 See Fla. Stat. Ann. § 768.13 (reckless disregard standard for
doctors providing emergency services).
80 Vt. Stat. Ann. tit. 12, § 5762.
81 Mass. Gen. Laws ch. 231, § 85V (immunity from negligence
liability for volunteer coaches, umpires, referees and others); Ga. Code
Ann. § 51–1–20.1 (immunity from negligence liability for volunteers to
sports or safety programs of a non-profit unless insurance coverage is
available); 745 Ill. Comp. Stat. § 80/1 (volunteers who coach or umpire in
non-profit sports programs; standard of care lowered so that no liability is
imposed unless conduct falls “substantially below” standard).
82 See Jones v. Westernaires, 876 P.2d 50 (Colo. Ct. App. 1993),
overruled so far as it provided immunity for organizations as well as
individuals, Concerned Parents of Pueblo v. Gilmore, 47 P.3d 311 (Colo.
2002).
83 Colo. Rev. Stat. Ann § 12–9–111.
84 Cal. Bus. & Prof. Code § 5536.27 (architects); Cal. Bus. & Prof.
Code § 6706 (engineers).
85 Cal. Civ. Code § 1714.25 (addressing the standard of care).
86 745 Ill. Comp. Stat. 50/4.
87 Colo. Rev. Stat. § 13–21–116; 76 Okla. Stat. § 31.
88 Moore v. Warren, 250 Va. 421, 463 S.E.2d 459 (1995). The court
refused to extend this immunity to the donor of tea and services for an
immune religious organization on the ground that the individual who
spilled hot tea was not acting for the charity but for the donor. Bhatia v.
Mehak, Inc., 262 Va. 544, 551 S.E.2d 358 (2001).
89 See 26 U.S.C.A. § 501(c).
90 42 U.S.C.A. § 14503.
91 42 U.S.C.A. § 14501(a)(6).
92 42 U.S.C.A. § 14503.
603
Chapter 24
PROFESSIONAL RISK-TAKERS
Analysis
§ 24.1 Shifting Responsibility to Professional Risk-Takers
§ 24.2 Limited Duties to Professional Risk-Takers: The Firefighters’
Rule
__________
§ 24.1 Shifting Responsibility to Professional

Risk-Takers
General Rule
Agreement to repair a danger. An employer ordinarily owes a
duty of reasonable care to provide workers and contractors a
reasonably safe place in which to work.1 The employer must
typically remove, or at least warn of, hidden dangers of which the
employer knew or should have known.2 However, if the employer
retains a contractor to repair a dangerous condition which is
known to both parties, the employer is not liable merely because he
created the danger.3 In that situation, the parties implicitly or
explicitly shift responsibility for repair of the dangerous condition
to the contractor, who generally has no complaint if the danger he
undertook to repair causes him harm.4
Limited duty. This rule of limited duty has been entangled with,
or even expressed as, a rule of assumed risk in the sense of no duty
or consent.5 However, the argument has been made that the all-or-
nothing result of a limited duty or assumed risk rule is
incompatible with more recent trends toward comparative
apportionment.6 That argument is particularly persuasive where
the plaintiff did not willingly consent to accept a specific, known
risk. The limited duty rule does not preclude recovery for injury
604
resulting from hidden dangers of which the contractor does not

know,7 or from dangers that arose after the work was undertaken.8
Knowledge of the risk is the watchword9—both the knowledge of
the employer, and the knowledge of the contractor.10
Illustrations. A Tennessee case illustrates the general principle.
In that case, the defendant property owner had allowed a roof to
become rotten and to leak. The defendant retained a contractor to
remove the rotten roof and install a new one. Although the
contractor did not know the extent of the rot, he knew he was
removing and replacing a roof that was not worth keeping. When
the roof collapsed with him, he had no claim against the owner.11
Conversely, suppose a chemist hires a local moving company to
transport furniture and packages, but does not tell the movers that
the boxes contain chemicals which will be dangerous in the heat. If
the chemicals explode during the move and injure the moving van’s
driver, the chemist is subject to liability for failure to take
precautions or warn of the danger.12
Effect on Third Persons
Shifting responsibility for injuries to third persons. An
arrangement under which the contractor assumes the risks of
dangers inherent in a job might conceivably affect rights of or
against third persons. If the contractor in control of the dangerous
instrument makes repairs negligently, or fails to make them, or
fails to warn those who are in danger, with resulting injury to some
third person, the contractor is subject to liability to the injured
person.13 But in at least some cases, the employer who reasonably
relies upon the contractor for safety can escape liability to the
victim.14 The employer may be viewed as having shifted
responsibility to the contractor unless the rules of non-delegable
duty, contractual or other assumed duty make him liable along
with the contractor.15 The limited liability of the employer is often
at issue when the contractor’s
605
employee or subcontractor is injured.16 If the contractor’s

employee was fully informed of the danger, he is in the same
position as the contractor.17 If the contractor’s employee was not
fully informed, the employer may nevertheless be reasonable in
relying upon the contractor to inform the contractor’s employee.18
In either event, absent a non-delegable duty or other exception, the
injured contractor’s employee has a claim against the contractor,
but not against the employer.19
Retained control. The contours of the exceptions in which
liability of the employer as well as the independent contractor is
recognized vary in different jurisdictions.20 The Restatement Third
hinges direct liability for work entrusted to an independent
contractor on retained control.21 The Restatement also retains
vicarious liability for those who hire independent contractors in
eight situations, which include work involving abnormally
dangerous activities,22 activity posing a peculiar risk,23
precautions required by statute or regulation,24 and several
additional circumstances.25
§ 24.2 Limited Duties to Professional Risk-Takers:
The Firefighters’ Rule
General rule. When firefighters,26 police officers,27 and perhaps
other public safety officers are injured by perils that they have
been employed to confront, many courts hold that they ordinarily
have no claim against the person who created those perils. For
example, if a landowner negligently causes a fire, the firefighter
injured by risks inherent in firefighting has no claim against the
landowner. The same is true if the fire is caused by a strict liability
activity.28 The rule is known both as the professional rescuers
doctrine, and, in spite of its expansion, as the firefighters’ rule.29
This chapter also uses the term public safety officer to include all
those to whom the rule applies. The rule says that one has no duty
to public safety officers to avoid creating a danger that
606
requires their services or to protect them against unknown

associated dangers.30 Qualifications almost always follow such
Draconian rules, and that is certainly the case with the firefighters’
rule.
Landowner cases. The firefighters’ rule was originally a product
of and justified by the premises liability rules.31 Perhaps in some
states the rule would still be confined to suits against the occupant
of the premises.32 In the premises cases, courts usually treated
firefighters as licensees, holding that they took the premises as
they found them, so the landowner would not be liable for
negligently setting the fire that injured the firefighter, or even for
leaving a dangerous condition on the premises.33 Under the
premises liability rules, the injured firefighter could recover in
several specific kinds of cases—when the landowner is guilty of
active negligence, as distinguished from unsafe conditions of the
property itself,34 when the landowner has violated an ordinance or
safety statute aimed at protecting firefighters or officers,35 when
the firefighter’s presence is known and the landowner fails to warn
of known dangers,36 and when injury occurs on premises open to
the public.37 But if the safety officer was in a private residence, or
on business premises at a place not open to the public, the courts
otherwise barred recovery.
Extension beyond landowners. The courts eventually began to
divorce the rule from its connection to landowner cases. They
began to say that public safety officers in the course of their
employment should be denied recovery for injuries inflicted by the
defendant’s negligence even when injury occurred outside the
defendant’s land and even when the defendant was not a
landowner at all.38 For example, in a California case, a police
officer was injured while attempting to stop a highway speeder.
The rule applied to bar the officer’s claim against the speeder. That
could not represent a landowner’s rule.39 At the same time, a fair
number of courts abolished the special landowner rules
607
and applied ordinary negligence rules to persons who were

injured on the land. These changes and other perceptions required
reconsideration of the rationales.40
Rationales. Sometimes it is suggested that if landowners were
liable for negligence in setting fires, they would delay calling for
professional help with potential for the spread of fire to
neighbors.41 Prosser thought this was a preposterous suggestion,
but no behavioral data has been offered either for or against that
view. Such a rationale would limit the rule to a narrow group of
cases.
Foreseeability. Prosser suggested that the “most legitimate”
basis for the firefighters’ rule was that public safety officers were
likely to enter the premises at unforeseeable times and places.42 If
this is the most legitimate rationale for the rule, then the rule has
little support indeed. First, it cannot explain use of the rule outside
the landowner’s cases, as where a police officer is injured in
pursuing a criminal. Second, unforeseeability of the officer’s
presence is a question of fact that differs from case to case; it is not
something you can make a rule about.
Public benefits. Some courts suggested that the safety officer
would collect workers’ compensation or similar benefits from the
public employer and that if the negligent defendant were required
to pay tort damages, the defendant would pay twice, once indirectly
as a taxpayer and again as a tortfeasor.43 One difficulty with this
argument is that it was not applied in other instances of public
employee injury. Even in its own terms, it did not work. The public
employer who paid compensation benefits to the injured firefighter
would in fact recoup some or all of the payments from the tort
recovery against the negligent defendant.
Duty and policy. If firefighters and police officers were to be
denied recovery whether injury occurred on the defendant’s land or
not, the most plausible explanation was grounded, not in the
landowners’ rules, but in a public policy which in turn was based
primarily on arguments from assumed risk in the no-duty sense.44
The argument is that firefighters and police officers are paid to
face risks inherent in their work, including, evidently, the risks of
negligence by third persons. If salaries of these employees do or
should reflect advance payment for taking risks, no other payment
is due when injury occurs.45 So the defendant owes no duty to
protect safety officers from risks they are employed to confront.
Under this rationale, courts currently tend to
608
analyze the cases by considering the risks which were, or were

not, inherent in the professional’s work or risks.46
Rejections and limitations. Besides the limits implicit in the
rule itself, some courts have begun to reject any special rule for
firefighters, officers, and others who must confront danger. Where
assumed risk has been abolished as a separate doctrine, and where
the special landowners’ rules have been abolished as well, the
formal supports for the doctrine are shaky. The Restatement Third
of Torts takes “no position” on the firefighters’ rule or its scope, but
notes that the Restatement’s adoption of a duty of reasonable care
owed to licensees undercuts one traditional justification for the
rule.47 Even where the landowners’ rules are retained, they offer
no support for the firefighters’ rule as applied to injuries outside
the land. For reasons like these, the Supreme Court of Oregon
abolished the rule,48 while others have never accepted it,49 or
counseled a cautious or narrow use of the rule.50 The English
House of Lords noted the American adoption of the rule and
summarily dismissed the whole idea.51 In some states, the rule
does not apply to bar recovery when the defendant violated a fire-
safety statute or ordinance.52 And legislatures have abolished the
rule53 or limited it54 in some states. It should go without saying,
however, that abolishing the special rule of immunity to public
safety officers does not necessarily result in liability, which may be
defeated by any of the ordinary rules of negligence law.55
Risks associated with professional employment. Courts may
express the firefighters’ rule by saying that it prohibits recovery by
a professional risk-taker for injuries from
609
“the negligently created risk that was the very reason for his
presence on the scene.”56 Put negatively, courts sometimes say that
the firefighters’ rule does not bar recovery when the defendant’s
negligence is “independent” of the circumstances that occasioned
the professional’s presence.57
Risks that did not occasion the officer’s presence. To say that the
officer is barred only when injury results from risks that produced
the officer’s presence may be to permit recovery in an assortment of
cases. One case held that a firefighter could not recover for injuries
resulting from a negligently set fire, but could recover for injuries
inflicted by the owner’s attack dogs, since the officer was
responding to the fire but not to attack dogs.58 A number of cases
reflect a similar approach.59 A firefighter might be denied recovery
for burns in an electrical fire for which she was summoned, but she
could recover for injuries from the explosion of a gasoline tank on
the premises60 or for injuries from other dangerous conditions on
the premises.61
Denials for associated risks. However, a number of decisions are
not so favorable to the safety officer. These appear to protect
defendants not only when the officer is injured by the very risk
that necessitated the officer’s presence, but also a range of
associated risks. Such decisions have denied recovery to a
firefighter who falls in an unguarded elevator shaft,62 to a
firefighter injured by an explosion of the defendant’s car that
occurred after the fire was in progress,63 and to a police officer who
slips on oil while investigating premises for a suspected burglary.64
The professional’s presence was not required by the elevator shaft,
the car that exploded, or the slippery oil, but recovery was
nevertheless denied. Although these risks did not occasion the
officer’s presence, they were a part of the bundle of risks associated
with the particular operation and that was enough.
Risks not inherent in the dangerous work or heightened by it.
Another way of looking at the issue is that the professional risk-
taker assumes only those risks that are inherent in the occupation
or in the particular operation65 and perhaps only risks that are
610
unique66 to the occupation or in some significant manner

heightened by it.67 Even then, the worker is not barred unless it is
plausible to think that the public employer has paid the worker to
relieve negligent persons from liability; the garbage worker may
face risks of street injury more than an office worker, but the
garbage worker is not paid to assume the risks of injury on the
street.68 The defendant does not escape when the negligence occurs
after the firefighter’s presence was or should have been
discovered,69 or in any case when he negligently injures the
plaintiff through a risk not inherent in the plaintiff’s professional
work.70 Put another way, when a risk poses a broad threat to any
number of people, “It would be illogical to insulate” the risk creator
from liability “simply because the person injured happened to be a
police officer or firefighter.”71 Thus an independent contractor who
negligently builds a deck stair that collapses as it is climbed, is not
insulated from liability because the stair climber happens to be a
deputy sheriff investigating the sound of a burglar alarm.72
Intentional or reckless torts that occasion the officer’s presence.
The defendant is liable for certain intentional, reckless or willful
torts to the safety officer, but quite possibly not for all. When the
defendant’s reckless misconduct simply causes a fire, for example,
a court may protect the defendant on the ground that the
firefighter assumed the risk of fire whether it was set recklessly or
negligently.73 Other courts have taken the opposite view, holding
that assumed risk is only one element in the public policy behind
the firefighters’ rule and that moral culpability of the defendant
who willfully or recklessly causes a fire weighs so heavily that
recovery should be allowed.74 In a case from New Mexico,
firefighters were allowed to recover against a gas company for
intentional infliction of emotional distress suffered in the course of
fighting a fire caused by a gas explosion when they saw several
victims burned to death.75 The court held that a firefighter could
recover damages if the harm was proximately caused by (1)
intentional
611
conduct, or (2) reckless conduct, “provided that the harm to the

firefighters exceeded the scope of risks inherent in the firefighters’
professional duties.” When the defendant’s willful, wanton, or
reckless conduct occurs after the occasion has arisen for the safety
officer’s presence, the case for recovery is particularly strong.
Generally. As already indicated, courts now extend the
firefighters’ rule to police officers and sometimes to other safety
officers, with the effect that many public safety officers are denied
recovery for injuries that fall within the inherent special risks of
their professions.
Volunteers and off-duty officers. Although the rule by its terms
does not include private persons who engage in various forms of
rescue work, it has sometimes been extended to volunteer
firefighters, who may be barred along with others.76 As to off-duty
public safety officers, it is difficult to see why the firefighters’ rule
should be invoked to protect the negligent defendant, since the off-
duty officer is essentially in the role of a private rescuer, and some
authority so holds, at least in the absence of evidence that the
officer is, by regulation or function, truly on duty.77 But some
cases, involving police officers in particular, have held that the
police officer who is off duty and out of uniform is nevertheless
always on duty in some sense and thus could be barred by the
professional rescuer’s rule when he is injured in the course of a
“rescue” or emergency involving police-type intervention.78
Public building inspectors and others not employed to face risks.
The special rule for public safety officers does not apply to many
other public officers or employees who are injured by a defendant’s
negligence. For example, it does not apply to a public sanitation
worker79 or a publicly employed building inspector or postal
worker80 who is injured by the defendant’s negligence, even
though, like the firefighter and police officer, the inspector will
have compensation from public funds. Rhode Island has said public
safety officers should be treated differently because the firefighters’
rule should be limited to
612
officers dealing with a crisis or emergency.81 Perhaps in line

with the assumed risk/no duty analysis, it could be said that the
other public employees have not been paid to assume any special,
identifiable risks, or at least not the risk that caused injury.82 In
other words, a building inspector at a place open to the public or
where the landowner expects her to be, is assuming no risks of
defective premises.83
Conflicting results. In a limited number of cases involving
paramedics and the like, courts have sometimes applied the
firefighters’ rule and sometimes not.84 Some courts tend to assume
that a categorical rule is required for such cases rather than an
evaluation of the facts bearing on whether the worker was paid to
assume the risk in question. Several have said that EMTs,
paramedics, or ambulance drivers and the like are not included in
the firefighters’ rule,85 or even that the firefighters’ rule is limited
to firefighters and police officers and hence automatically excludes
all others.86 On the other hand, some courts have extended the rule
to bar EMTs87 or lifeguards88 injured in the course of a rescue.
Case-specific evaluation based on inherent risks. Alternatively,
courts can treat the question of the paramedic’s assumption of risk
as a fact question to be decided like other fact questions, case by
case. A court might, for example, conclude that the particular risk
encountered by a rescue worker was not inherent in the work and
hence not a risk the worker assumed, while leaving it open to
conclude that some other risk was one the worker was paid to
encounter. Under such a case-specific approach, a court might
conclude that a paramedic was not employed to confront toxic
fumes generated by the defendant,89 but that an attendant in a
mental health facility for dangerous patients was definitely
employed to assume the risks of violent patients90 or a helicopter
rescue crew was employed to face the risk, among others, that the
helicopter would crash.91
Privately employed safety workers. Police, firefighting, and other
safety efforts can be thought of in terms of the rescue doctrine. The
rescue doctrine has it that a defendant who negligently creates
risks to A may be liable to B who is injured in coming to A’s rescue.
The doctrine applies even if the defendant is the person being
rescued.92 The rescue doctrine most clearly applies to spontaneous
rescuers who have no professional stake or duty in effecting a
rescue. When the rescuer is a publicly paid professional whose
613
duty includes such a rescue, states that apply the firefighters’

rule are in effect saying that the rescue doctrine is inapplicable.93
Privately employed risk takers. The privately employed risk-
taker is neither a spontaneous good citizen nor a public employee,
so the question arises whether to apply the firefighters’ rule or
something closer to the rescue doctrine. The assumed risk/public
policy rationale of the firefighters’ rule is based on the somewhat
plausible view that the public employer is paying wages and
compensation benefits to the firefighter to protect citizens from
firefighter suits because by so doing the public employer
exonerates citizens who are also taxpayers-constituents of that
public entity. But it is not equally persuasive to construct such a
vision of the private employer’s relation to third persons who may
be negligent toward its employees. While a privately employed
safety officer may know of risks to be confronted, it is quite
unlikely that the private employer is paying the officer to forego
claims against others. Consequently, courts have refused to apply
the firefighters’ rule to privately employed professional risk-takers,
with the result that the ordinary claims and defenses will
determine the case.94
Suits against employers. To say that privately employed risk-
takers are not subject to the firefighters’ rule, however, is not to
say that private risk-takers can recover against one who hires
them to face the risk. Nurses hired to deal with a mentally
disabled patient95 or veterinarians and kennel workers hired to
treat or groom a dog,96 like the contractors hired to repair a
dangerous roof,97 may find themselves barred from recovery for
foreseeable job-related hazards by some version of assumed risk or
no-duty reasoning. Similarly, manufacturers of defective or
negligently made or designed products are normally responsible for
the harms inflicted by those products.98 When the product causes a
fire or makes it worse, however, several courts have held that the
firefighters’ rule bars recovery by the injured firefighter.99
________________________________
1 See Hastings v. Mechalske, 336 Md. 663, 650 A.2d 274 (1994).
2 Bennett v. Trevecca Nazarene Univ., 216 S.W.3d 293 (Tenn.
2007). Brewster v. Colgate-Palmolive Co., 279 S.W.3d 142 (Ky. 2009)
(unknown asbestos).
3 See Chance v. Dallas County, Ala., 456 So.2d 295 (Ala. 1984);
Hannon v. Hayes-Bickford Lunch Sys., Inc., 336 Mass. 268, 145 N.E.2d
191 (1957).
4 State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77 (Mo. 2008);
Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006); Kowalsky
v. Conreco Co., Inc., 264 N.Y. 125, 190 N.E. 206 (1934); cf. Dyer v. Superior
Court, 56 Cal.App.4th 61, 65 Cal.Rptr.2d 85 (1997) (tow truck driver
injured on the highway while responding to call assumed the risks of
highway injury and could not recover against driver who failed to
maintain his car and thus necessitated the call for a tow).
5 This was sometimes called “contractual assumed risk.” Courts
once applied the idea to virtually any job risks, including those that could
have been eliminated by reasonable care or providing a reasonably safe
place. E.g., Comer v. Texaco, Inc., 514 F.2d 1243 (5th Cir. 1975) (worker
who needed job assumed risk of attack by working in a high crime area
even if he could not get a job elsewhere; consequently the employer was
not liable); Smith v. Officers & Dirs. of Kart-N-Karry, Inc., 346 So.2d 313
(La. Ct. App. 1977) (similar). This broad approach to assumed risk has
largely passed from the picture.
6 Compare Brewster v. Colgate-Palmolive Co., 279 S.W.3d 142 (Ky.
2009), with Hale v. Beckstead, 116 P.3d 263 (Utah 2005). In a comparative
apportionment system, a jury might be permitted to weigh the
responsibility of multiple parties such as general contractor, a
subcontractor and its employee. See Coho Res., Inc. v. Chapman, 913 So.2d
899 (Miss. 2005).
7 See, e.g., Kinsman v. Unocal Corp., 37 Cal.4th 659, 123 P.3d 931
(2005) (concealed asbestos hazard; a “landowner cannot effectively
delegate to the contractor responsibility for the safety of its employees if it
fails to disclose critical information needed to fulfill that responsibility”);
General Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008) (absence of
handrails was not a concealed defect); Olivo v. Owens-Illinois, Inc., 186
N.J. 394, 895 A.2d 1143 (2006) (issues of fact concerning whether asbestos
exposure was a known risk incidental to the work contractor was hired to
perform); Chance v. Dallas County, Ala., 456 So.2d 295 (Ala. 1984).
8 See, e.g., Bennett v. Trevecca Nazarene Univ., 216 S.W.3d 293
(Tenn. 2007).
9 Benefield v. Pep Boys-Manny, Moe & Jack, Inc., 291 Ga. App. 79,
661 S.E.2d 214 (2008) (reversing grant of summary judgment when
contractor performing work on lighting fixtures had not seen that
protective metal shielding the conveyor had been removed).
10 In Roberts v. NASCO Equip. Co., Inc., 986 So.2d 379 (Ala. 2007),
the Alabama Supreme Court wrote, “A party claiming that a duty to warn
existed must show: (1) that the defect or danger was hidden; (2) that it was
known to the owner; and (3) that it was neither known to the contractor,
nor such as he ought to know.” See also Jones Food Co., Inc. v. Shipman,
981 So.2d 355 (Ala. 2006) (finding that employer did not have superior
knowledge of hazard ladder posed).
11 Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996).
Harm) § 55 illus. 4 (2012).
13 Id. § 55 (actor who hires an independent contractor to perform an
activity that creates a risk of physical harm is potentially subject to
liability).
14 Id. § 56 (no liability factor has not retained control over that part
of the work).
15 Id. § 57 (vicarious liability of an actor who hires an independent
contractor in the case of abnormally dangerous activities, activities posing
a peculiar risk, and six additional circumstances). See also Hull v. Baran
Telecom, Inc., 242 Fed. Appx. 504, 2007 WL 2007571 (10th Cir. 2007);
Farabaugh v. Pennsylvania Turnpike Comm’n, 590 Pa. 46, 911 A.2d 1264
(2006); Handler Corp. v. Tlapechco, 901 A.2d 737 (Del. 2006). Cf. In re
World Trade Ctr. Disaster Site Litig., 456 F.Supp.2d 520 (S.D.N.Y. 2006)
(granting and denying some defendants’ motions to dismiss claims brought
by workers who inhaled toxic fumes during restoration of the World Trade
Center after the September 11, 2001 attacks).
16 E.g., Meadowcraft Indus., Inc., 817 So.2d 702 (Ala. 2001); Whitlow
v. Seaboard Air Line R.R. Co., 222 F.2d 57 (4th Cir. 1955); Kowalsky v.
Conreco Co., Inc., 264 N.Y. 125, 190 N.E. 206 (1934).
17 See Kamla v. Space Needle Corp., 147 Wash.2d 114, 52 P.3d 472
(2002).
18 Brewster v. Colgate-Palmolive Co., 279 S.W.3d 142, 144 n.4 (Ky.
2009).
19 Helms v. Carmel High Sch. Vocational Bldg. Trades Corp., 854
N.E.2d 345 (Ind. 2006); Franks v. Independent Prod. Co., Inc., 96 P.3d 484
(Wyo. 2004); Shell Oil Co. v. Khan, 138 S.W.3d 288 (Tex. 2004).
20 For example, in Delaware, a general contractor has a duty to
protect an independent contractor’s employees when the general
contractor: (1) actively controls the manner and method of performing the
contract work; (2) voluntarily undertakes the responsibility for
implementing safety measures; or (3) retains possessory control over the
work premises during work. Handler Corp. v. Tlapechco, 901 A.2d 737
(Del. 2006).
Harm) § 56 (2012).
22 Id. § 58.
23 Id. § 59.
24 Id. § 63.
25 Id. §§ 57–65.
26 E.g., Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960) (a leading
case on the “firefighters’ rule”), superseded by statute as discussed in
Roma v. U.S., 344 F.3d 352 (3rd Cir. 2003).
27 E.g., Moody v. Delta Western, Inc., 38 P.3d 1139 (Alaska 2002);
White v. State, 419 Md. 265, 19 A.3d 369 (2011); Farmer v. B & G Food
Enters., Inc., 181 So.2d 1154 (Miss. 2002); Wadler v. City of New York, 14
N.Y.3d 192, 899 N.Y.S.2d 73, 925 N.E.2d 875 (2010); Ellinwood v. Cohen,
87 A.3d 1054 (R.I. 2014). Contra, holding the grounds for the firefighters’
rule do not apply to police officers, Cole v. Hubanks, 681 N.W.2d 147 (Wis.
2004).
28 See Lipson v. Superior Court of Orange County (Berger), 31
Cal.3d 362, 644 P.2d 822, 182 Cal.Rptr. 629 (1982).
29 Older cases called it the fireman’s rule and must be searched
under that term. It is also sometimes referred to as the professional
rescuer’s doctrine. See Fordham v. Oldroyd, 171 P.3d 411 (Utah 2007).
30 Carson v. Headrick, 900 S.W.2d 685, 690 (Tenn. 1995) (using a
variant formulation: “a citizen owes no duty of reasonable care to police
officers responding to that citizen’s call for assistance”).
31 For a collection of the landowners’ cases, see Larry D. Scheafer,
Annotation, Liability of Owner or Occupant of Premises to Fireman
Coming Thereon in Discharge of His Duty, 11 A.L.R.4th 597 (1981);
Richard C. Tinney, Annotation, Liability of Owner or Occupant of
Premises to Police Officer Coming Thereon in Discharge of Officer’s Duty,
30 A.L.R.4th 81 (1981).
32 See Court v. Grzelinski, 72 Ill.2d 141, 379 N.E.2d 281, 19 Ill.Dec.
617 (1978); Knight v. Schneider Nat’l Carriers, Inc., 350 F.Supp.2d 775,
782 (N.D. Ill. 2004).
33 E.g., Lee v. Luigi, Inc., 696 A.2d 1371 (D.C. 1997) (police officer
responding to burglar alarm when owner was absent slipped on dangerous
substance).
34 See Buren v. Midwest Indus., Inc., 380 S.W.2d 96 (Ky. 1964).
35 E.g., Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d
1184 (1960).
36 See Wright v. Coleman, 148 Wis.2d 897, 436 N.W.2d 864 (1989).
37 See Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13
A.L.R. 633 (1920); Cameron v. Abatiell, 127 Vt. 111, 241 A.2d 310 (1968),
overruled by duty Demag v. Better Power Equip., Inc., 197 Vt. 176, 102
A.3d 1101, 1105 (2014) (rejecting the status categories).
38 See, e.g., White v. State, 419 Md. 265, 19 A.3d 369 (2011)
(firefighters’ rule barred police officer’s claim against the state for the
negligence of a police dispatcher in reporting a shoplifting incident as an
armed robbery, causing the officer to engage in a high-speed chase during
which he was injured).
39 Hubbard v. Boelt, 28 Cal.3d 480, 620 P.2d 156, 169 Cal.Rptr. 706
(1980), superseded by statute limiting application of the firefighter’s rule
as stated in Gibb v. Stetson, 199 Cal.App.3d 1008, 245 Cal.Rptr. 283
(1988); cf. Moody v. Delta Western, Inc., 38 P.3d 1139 (Alaska 2002) (police
officer injured trying to stop stolen vehicle loaded with flammables;
recovery against owner who negligently permitted theft is barred by
firefighters’ rule).
40 In some cases the shift is explicit, as in Hack v. Gillespie, 74 Ohio
St.3d 362, 658 N.E.2d 1046, 1049 (1996). For a newer take on rationales
that support retaining at least a limited form of the firefighters’ rule, see
Gerritt De Geest, Who Should Be Immune From Tort Liability?, 41 J.
Legal Stud. 291 (2012).
41 See, e.g., Sallee v. GTE South, Inc., 839 S.W.2d 277 (Ky. 1992).
42 Prosser & Keeton on Torts § 61, pp. 431–32.
43 E.g., Farmer v. B & G Food Enters., Inc., 181 So.2d 1154 (Miss.
2002).
44 See, e.g., Hack v. Gillespie, 74 Ohio St.3d 362, 658 N.E.2d 1046
(1996). Some opinions have sought to avoid the assumed risk expression,
but they nevertheless raise the same kind of arguments. See Flowers v.
Rock Creek Terrace Ltd. P’ship, 308 Md. 432, 520 A.2d 361 (1987) (public
policy derived from fact that firefighters are employed for the very purpose
of confronting such risks); Kreski v. Modern Wholesale Elec. Supply Co.,
429 Mich. 347, 415 N.W.2d 178 (1987).
45 See Babes Showclub, Jaba, Inc. v. Lair, 918 N.E.2d 308 (Ind. 2009)
(“Many emergencies are caused by the negligence of some party. The
public employs firefighters, police officers, and others to respond to
emergencies, and these responders knowingly combat the effects of others’
negligence.”); Krauth v. Geller, 31 N.J. 270, 274, 157 A.2d 129, 131 (1960)
(“Hence, for that risk, the fireman should receive appropriate
compensation from the public he serves, both in pay which reflects the
hazard and in workmen’s compensation benefits….”), superseded by
statute as discussed in Roma v. U.S., 344 F.3d 352 (3rd Cir. 2003).
46 Ruffing v. Ada County Paramedics, 145 Idaho 943, 188 P.3d 885
(2008); Beupre v. Pierce County, 161 Wash.2d 568, 166 P.3d 712 (2007).
Hart v. Shastri Narayan Swaroop, Inc., 385 Md. 514, 870 A.2d 157 (2005).
Emotional Harm) § 51 cmt. m (2010).
48 Christensen v. Murphy, 296 Or. 610, 620, 678 P.2d 1210, 1217
(1984).
49 See Mull v. Kerstetter, 373 Pa.Super. 228, 540 A.2d 951 (1988);
Minnich v. Med-Waste, Inc., 349 S.C. 567, 564 S.E.2d 98 (2002) (“The more
sound public policy—and the one we adopt—is to decline to promulgate a
rule singling out police officers and firefighters for discriminatory
treatment.”).
50 See Sallee v. GTE South, Inc., 839 S.W.2d 277, 278 (Ky. 1992)
(“We narrowly circumscribe the application of such exceptions so as to
protect no one from responsibility for the consequences of their wrongdoing
except where protecting the public makes it essential to do so.”); DeLaire
v. Kaskel, 842 A.2d 1052 (R.I. 2004) (refusing to extend rule to animal
control officers); Cole v. Hubanks, 681 N.W.2d 147 (Wis. 2004) (refusing to
apply the rule to police officers).
51 Ogwo v. Taylor, 1 A.C. 431 (1987).
52 See N.Y. Gen. Mun. L. § 205–a.
53 E.g., Fla. Stat. Ann. § 112.182 (as to property owners; firefighters
and police officers classified as invitees when lawfully on the property);
425 Ill. Comp. Stat. 25/9(f) (“The owner or occupier of the premises and his
or her agents owe fire fighters … duty of reasonable care if the fire fighter
is injured due to the lack of maintenance of the premises….”); Minn. Stat.
Ann. § 604.06; N.J. Stat. Ann. § 2A:62A–21; N.Y. Gen. Oblig. L. § 11–106.
See also Ruiz v. Mero, 189 N.J. 525, 917 A.2d 239 (2007) (holding that the
New Jersey statute cited herein did indeed abrogate the firefighters’ rule
completely).
54 Cal.Civ. Code § 1714.9; Nev. Rev. Stat. § 41.139. But cf. Mich.
Comp. L. Ann. §§ 600.2965 to .2967 (detailed codification with some highly
specific rules restricting recovery).
55 E.g., Lazenby v. Mark’s Constr., Inc., 236 Ill.2d 83, 337 Ill.Dec.
884, 923 N.E.2d 735 (2010) (firefighter injured while fighting fire in
residence was properly barred from recovery because sufficient evidence
supported the jury’s finding that the firefighter was more than 50%
negligent, thus barring the claim under the modified form of comparative
negligence); Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 907 N.E.2d 213
(2009) (if rescue doctrine rather than firefighters’ rule applied, plaintiff
police officer still could not recover because his injury was unforeseeable).
56 White v. State, 419 Md. 265, 19 A.3d 369 (2011); Flowers v. Rock
Creek Terrace Ltd. P’ship, 308 Md. 432, 449, 520 A.2d 361, 368 (1987);
Farmer v. B & G Food Enters., Inc., 181 So.2d 1154 (Miss. 2002) (officer is
“barred only when the sole negligent act is the same negligent act that
necessitated rescue”); Boulter v. Eli & Bessie Cohen Found., 97 A.3d 1127
(N.H. 2014); Wiley v. Redd, 110 Nev. 1310, 885 P.2d 592 (1994); Ruffing v.
Ada County Paramedics, 145 Idaho 943, 188 P.3d 885 (2008).
57 Harris-Fields v. Syze, 461 Mich. 188, 600 N.W.2d 611 (1999);
Lipson v. Superior Court of Orange County (Berger), 31 Cal.3d 362, 644
P.2d 822, 182 Cal.Rptr. 629 (1982).
58 Cf. Wiley v. Redd, 110 Nev. 1310, 885 P.2d 592 (1994).
59 See, e.g., Lurgio v. Commonwealth Edison Co., 914 N.E.2d 659,
333 Ill.Dec. 240 (App. Ct. 2009) (firefighters’ rule did not apply to injured
police officer’s claim that electric utility company unreasonably delayed
shutting off power to downed power line after officer had been deployed to
the scene to redirect traffic).
60 See Lipson v. Superior Court of Orange County (Berger), 31
Cal.3d 362, 377, 644 P.2d 822, 832, 182 Cal.Rptr. 629, 639 (1982).
61 Rennenger v. Pacesetter Co., 558 N.W.2d 419 (Iowa 1997); cf. Paul
v. Luigi’s, Inc., 557 N.W.2d 895 (Iowa 1997) (similar, police).
62 Flowers v. Rock Creek Terrace Ltd. P’ship, 308 Md. 432, 520 A.2d
361 (1987).
63 White v. Edmond, 971 F.2d 681 (11th Cir. 1992); cf. Sobanski v.
Donahue, 792 A.2d 57 (R.I. 2002).
64 Lee v. Luigi, Inc., 696 A.2d 1371 (D.C. 1997). However, when the
New Jersey Supreme Court held that the firefighters’ rule barred recovery
by an officer providing emergency medical assistance when the officer
slipped on powdered sugar in the defendant’s kitchen, Rosa v. Dunkin’
Donuts of Passaic, 122 N.J. 66, 583 A.2d 1129 (1991), the legislature
promptly abolished the firefighters’ rule. See Ruiz v. Mero, 917 A.2d 239
(N.J. 2007).
65 See Maltman v. Sauer, 84 Wash.2d 975, 979, 530 P.2d 254, 257
(1975) (was the risk causing injury “inherently within the ambit of those
dangers which are unique to and generally associated with the particular
rescue activity”).
66 See id. (unique). The policy rationale seems to support only risks
that are peculiar to or of a demonstrably greater magnitude in the
plaintiff’s professional work. Cf. Woods v. City of Warren, 439 Mich. 186,
193, 482 N.W.2d 696, 699 (1992).
67 Wadler v. City of New York, 14 N.Y.3d 192, 899 N.Y.S.2d 73, 925
N.E.2d 875 (2010) (firefighters’ rule barred police officer’s negligence suit
against the city for an injury caused by a negligently operated security
gate in the parking lot of police headquarters; the security gate “was
plainly a risk associated with particular dangers inherent in police work.
Ordinary civilians may encounter such devices, but police officers, whose
duties may include working in secure areas that are at risk of a terrorist
attack, are far more likely to do so.”); Ciervo v. City of New York, 240
A.D.2d 693, 659 N.Y.S.2d 320 (1997), aff’d, 93 N.Y.2d 465, 715 N.E.2d 91,
693 N.Y.S.2d 63 (1999) (heightened, not inherent is the test).
68 Ciervo v. City of New York, 93 N.Y.2d 465, 715 N.E.2d 91, 693
N.Y.S.2d 63 (1999).
69 See Lurgio v. Commonwealth Edison Co., 914 N.E.2d 659, 333
Ill.Dec. 240 (App. Ct. 2009); Garcia v. City of South Tucson, 131 Ariz. 315,
640 P.2d 1117 (Ct. App. 1982); Cal. Civ. Code § 1714.9.
70 See Lipson v. Superior Court, supra note 60; Sallee v. GTE South,
Inc., 839 S.W.2d 277 (Ky. 1992) (not barred as to injury resulting from risk
“different in both kind and character”); Flowers v. Rock Creek Terrace Ltd.
P’ship, 308 Md. 432, 520 A.2d 361 (1987) (rule does not apply as to perils
not reasonably foreseeable as part of the occupational risk).
71 Torchik v. Boyce, 121 Ohio St. 3d 440, 905 N.E.2d 179 (2009).
72 Id.; but see Krajewski v. Bourque, 782 A.2d 650 (R.I. 2001)
(firefighters’ rule barred recovery for injuries officer sustained when he
slipped on ice on the landowner’s steep driveway).
73 Cf. Hubbard v. Boelt, 28 Cal.3d 480, 620 P.2d 156, 169 Cal.Rptr.
706 (1980) (driver whose speed prompted an officer to give chase was not
liable for injuries incurred by the officer in the crash that ensued, a result
that may be affected by Cal. Civ. Code § 1714.9); Young v. Sherwin-
Williams Co., 569 A.2d 1173 (D.C. 1990) (driver’s recklessness left him in
great danger, firefighter injured in rescue could not recover since the
doctrine is based on assumed risk, not culpability of the defendant).
74 Mahoney v. Carus Chem. Co., Inc., 102 N.J. 564, 510 A.2d 4, 62
A.L.R.4th 703 (1986). Cf. Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983)
(police officer). Much expanded recovery is now allowed by statute in New
Jersey see Ruiz v. Mero, 917 A.2d 239 (N.J. 2007).
75 Baldonado v. El Paso Natural Gas Co., 143 N.M. 288, 176 P.3d
277 (2008).
76 E.g., Waggoner v. Troutman Oil Co., Inc., 320 Ark. 56, 894 S.W.2d
913 (1995); Baker v. Superior Court (Leach), 129 Cal.App.3d 710, 181
Cal.Rptr. 311 (1982); Carpenter v. O’Day, 562 A.2d 595 (Del. Super.), aff’d
553 A.2d 638 (Del. 1988). Contra: Roberts v. Vaughn, 459 Mich. 282, 587
N.W.2d 249 (1998) (criticizing cases barring the volunteer on the ground
that the cases did not explain why policy reasons applied to paid
firefighter also applied to the unpaid one).
77 Espinoza v. Schulenburg, 212 Ariz. 215, 129 P.3d 937 (2006) (fully
reasoned but succinct opinion); Alessio v. Fire & Ice, Inc., 197 N.J.Super.
22, 484 A.2d 24 (1984) (“the rule depends on a realistic determination of
whether, in the particular circumstances, the off-duty officer was acting as
a police officer or as a volunteer;” discussing the dangers faced by lone
officer out of uniform and recognizing that although such an officer may
assume the risk, he is not barred by the firefighters’ rule if he is facing
greater risks because he lacks backup and is out of uniform); Wadler v.
City of New York, 14 N.Y.3d 192, 899 N.Y.S.2d 73, 925 N.E.2d 875 (2010).
78 Hodges v. Yarian, 53 Cal.App. 4th 973, 62 Cal.Rptr. 2d 130 (1997)
(even though officer was off duty, out of uniform, and injured investigating
a burglary in progress at his own residence, the firefighters’ rule barred a
claim against the landlord for inadequate security because his attempt to
deal with the intruder was “inherently” part of his job); Levine v. Chemical
Bank, 221 A.D.2d 175, 633 N.Y.S.2d 296 (1995); cf. Trammel v. Bradberry,
256 Ga.App. 412, 568 S.E.2d 715 (2002) (“an off-duty officer is always on
duty when a crime is committed in his presence,” seemingly applicable to
the firefighters’ rule as well as to the assumed risk issue the court was
discussing).
79 Ciervo v. City of New York, 93 N.Y.2d 465, 715 N.E.2d 91, 693
N.Y.S.2d 63 (1999).
80 See J.D. Perovich, Annotation, Liability of Owner or Occupant of
Premises to Building or Construction Inspector Coming upon Premises in
Discharge of Duty, 28 A.L.R.3d 891 (1970); cf. J.D. Perovich., Annotation,
Liability of Owner or Operator of Premises for Injury to Meter Reader or
Similar Employee of Public Service Corporation Coming to Premises in
Course of Duties, 28 A.L.R.3d 1344 (1970).
81 Labrie v. Pace Membership Warehouse, Inc., 678 A.2d 867 (R.I.
1996).
82 See Ciervo v. City of New York, 93 N.Y.2d 465, 715 N.E.2d 91, 693
N.Y.S.2d 63 (1999).
83 See Boyer v. Anchor Disposal, 135 N.J. 86, 638 A.2d 135 (1994)
(fire inspector did not assume risk of hidden slippery substance).
84 See Joseph B. Conder, Application of “Firemen’s Rule” to Bar
Recovery by Emergency Medical Personnel Injured in Responding to, or at
Scene of, Emergency, 89 A.L.R.4th 1079 (1992).
85 Kowalski v. Gratopp, 177 Mich.App. 448, 442 N.W.2d 682 (1989)
(paramedic or EMT); Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708 (Mo.
1990) (ambulance driver killed at scene of multi-vehicle collisions on
Interstate 70).
86 Lees v. Lobosco, 265 N.J.Super. 95, 625 A.2d 573 (1993).
87 Maggard v. Conagra Foods, Inc., 168 S.W.3d 425 (Ky. Ct. App.
2005) (but seemingly going off on the conclusion that, as a matter of law,
the defendant simply was not negligent); Pinter v. American Family Mut.
Ins. Co., 236 Wis.2d 137, 613 N.W.2d 110 (2000).
88 City of Oceanside v. Superior Court, 81 Cal.App. 4th 269, 96
Cal.Rptr. 2d 621 (2000).
89 See Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268
(1988).
90 Anicet v. Gant, 580 So.2d 273 (Fla. Dist. Ct. App. 1991).
91 Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254 (1975).
92 § 15.7.
93 Espinoza v. Schulenburg, 129 P.3d 937 (Ariz. 2006).
94 Neighbarger v. Irwin Indus., Inc., 8 Cal.4th 532, 34 Cal.Rptr.2d
630, 882 P.2d 347 (1994); Kowalski v. Gratopp, 177 Mich.App. 448, 442
N.W.2d 682 (1989).
95 See Anicet v. Gant, 580 So.2d 273 (Fla. Dist. Ct. App. 1991);
Creasy v. Rusk, 730 N.E.2d 659 (Ind. 2000).
96 Priebe v. Nelson, 39 Cal.4th 1112, 140 P.3d 848, 47 Cal.Rptr.3d
553 (2006) (holding kennel worker employed by veterinarian was also
subject to this bar, but would not be barred if dog owner knew of
dangerous propensity and did not reveal it).
97 Stinnett v. Buchele, 598 S.W.2d 469 (Ky. Ct. App. 1980).
98 Chapter 33.
99 White v. Edmond, 971 F.2d 681 (11th Cir. 1992) (Volvo allegedly
exploded at scene of fire, causing injuries, manufacturer not liable);
Flowers v. Rock Creek Terrace Ltd. P’ship, 308 Md. 432, 520 A.2d 361
(1987) (manufacturer of elevator not liable when firefighter fell twelve
stories while fighting fire; such an injury is within the range of anticipated
risks); Austin v. City of Buffalo, 179 A.D.2d 1075, 580 N.Y.S.2d 604 (1992);
Mahoney v. Carus Chem. Co., Inc., 102 N.J. 564, 510 A.2d 4, 62 A.L.R.4th
703 (1986); Mignone v. Fieldcrest Mills, 556 A.2d 35 (R.I. 1989).
615
Chapter 25
LIMITING LIABILITY FOR NON-ACTION

Analysis
A. THE GENERAL RULES OF NON-ACTION
§ 25.1 The No-Duty-to-Rescue Rule and Exceptions
B. GENERAL DUTIES TO ACT AFFIRMATIVELY TO RESCUE OR
ASSIST
§ 25.3 Innocently Harming or Creating a Risk of Harm
§ 25.4 Special Relationship Between Plaintiff and Defendant
§ 25.6 Undertaking Creating a Duty to the Plaintiff
§ 25.7 Undertaking Creating a Duty to Third Persons
__________
A. THE GENERAL RULES OF NON-ACTION

§ 25.1 The No-Duty-to-Rescue Rule and
Exceptions
General rule. Absent special relationships or particular
circumstances or actions, a defendant is not liable in tort for a pure
failure to act for the plaintiff’s benefit. The starkest form of this no-
duty-to-act rule arises where the defendant is sued for failing to
rescue or assist the plaintiff, who is in need of such help.1 This
general rule applies even where the defendant foresees harm to a
particular individual from his failure to act, and where he could act
without placing himself in any peril at all.2
To take the Second Restatement’s example, suppose the
defendant sees an unsighted person about to step in front of an
approaching car. The defendant could prevent his injury or death
by a word or touch, without endangering or inconviencing himself,
yet he does nothing to prevent injury. The general rule applies to
relieve the defendant of any liability.3 The cases are seldom so
dramatic, but they accept and apply the rule.4 Scholarly
commentary on the general no-duty-to-rescue rule goes back more
616
than a century.5 Now, as then, scholars have differed on the

merits of the rule, with some arguing in favor of it6 and others
taking an opposing view in varying degrees.7
Exceptions. There are relatively few cases as simple as the
above illustration. In the failure-to-rescue cases, litigation is apt to
turn not on the existence of the rule, but on its scope and
exceptions. In fact, it may be that properly understood exceptions
have the effect of creating a duty to act in most instances where a
reasonable person would feel compelled to act. The exceptional
circumstances in which a defendant may owe a duty of reasonable
assistance to a plaintiff include: (1) the defendant or his
instrumentalities, innocently or not, have created risks or caused
harm to the plaintiff;8 (2) the defendant is in a special relationship
to the plaintiff that is deemed to create a duty of care that
encompasses affirmative action;9 (3) the defendant begins to offer
assistance;10 and (4) the defendant has in some other way assumed
a duty of affirmative care by action or promise that evinces such an
assumption.11
Courts have sometimes gone beyond these categories, or have
expanded them substantially, to find a duty to assist.12 A common
denominator in these cases is that the defendant could have
assisted with little effort and the effect of non-assistance was
deadly; thus the moral blame attached to the defendant’s inaction
was particularly pronounced. In Soldano v. O’Daniels,13 the
plaintiff alleged that a patron of Happy Jack’s Saloon went across
the street to the Circle Inn and asked the bartender there to call
the police or to permit the patron to do so because a man had been
threatened in Happy Jack’s. The bartender refused to call or to
permit the patron to do so. The plaintiff’s father was shot and
killed in Happy Jack’s Saloon, presumably after the patron’s failed
effort to call the police. In the court’s view, Circle Inn “displayed a
disregard for human life that can be characterized as morally
wrong” and the burden of permitting use of the phone in a public
place of business would have been minimal. Under these
circumstances, the defendant owed a duty to permit the use of the
phone, given the close connection between the defendant’s conduct
and the injury.14
617
In a more recent case, Podias v. Mairs,15 the plaintiff’s

decedent, Podias, was injured when his motorcycle was struck at
night by a car driven by an intoxicated teenager, Mairs. Two other
teenagers were passengers in Mairs’ vehicle. The three of them left
Podias helpless in the middle of the road and did nothing to assist
him; they made numerous cell phone calls, but none to summon
help. Shortly thereafter Podias was killed when another car ran
over him. Podias’s widow sued the three teenagers, among others.
Mairs settled prior to trial for over a million dollars,16 but the trial
court granted summary judgment for the two passengers on the
ground that they owed no duty to assist. The appeals court
reversed, resting its decision primarily on the theory that there
was a “concert of action,” in that “the defendants acquiesced in the
conditions that may have helped create [the initial risk] and
subsequently in those conditions that further endangered the
victim’s safety.” The defendants were “far more than innocent
bystanders,” the court said; rather, they “bear some relationship
not only to the primary wrongdoer but to the incident itself.” While
the court expressly disclaimed that it was creating a rule of general
application, it also stressed that “defendants had both the
opportunity and ability to help prevent an obviously foreseeable
risk of severe and potentially fatal consequence,” and that on such
facts “the imposition of a duty … does not offend notions of fairness
and common decency.”17
Both Soldano and Podias reflect deep judicial doubt about the
rectitude of the basic no-duty rule. Indeed, to the extent they
search for an exception to the rule based on ease of assistance and
reasonably foreseeable fatal consequences of non-assistance, they
run up squarely against the Second Restatement’s example, where
the defendant could have prevented foreseeable death or serious
bodily harm with almost no effort and with absolutely no peril.
Perhaps, however, both courts’ opinions can be seen as rejecting
the general no-duty rule only where the defendant is not simply a
“passive bystander,” but rather is someone with much more
involvement in the incident. Perhaps the result in both cases can
be explained in part by the notion that the defendant prevented
others from assisting.18 But just as such failure-to-assist cases are
both rare and exceptional, so are the opportunities for any broad
judicial condemnation of the general rule itself.
“Bad Samaritan” statutes. A handful of states have adopted
statutes that criminalize a failure to rescue or assist, at least under
particular circumstances; an even smaller number of these statutes
provide for potential civil liability.19 The oldest such
618
statute, adopted in Vermont in 1967, requires reasonable

assistance when the defendant knows that another person is
“exposed to grave physical harm” and can assist without danger to
himself.20 Minnesota’s statute is similar, making it a petty
misdemeanor for a person at the scene of an emergency to fail to
provide reasonable assistance, then immunizing a rescuer from
civil liability unless the assistance is provided “in a willful and
wanton or reckless manner.”21 Rhode Island’s criminal statute
requires “any person at the scene of an emergency who knows that
another person is exposed to, or has suffered, grave physical harm”
to give “reasonable assistance” if “he or she can do so without
danger or peril to himself or others.”22 Criminal prosecutions
under these statutes have been rare to nonexistent,23 and very few
torts cases have applied them in situations where a defendant has
allegedly not assisted at all.24 Another small group of states has
narrower “rescue” provisions in their criminal statutes; these
usually apply only to persons present at a crime scene, requiring
them to notify law enforcement or medical personnel if they can do
so without peril to themselves.25
A failure to rescue or assist is classically viewed as an instance
of non-action, or “nonfeasance,” as it is often called. The meaning of
this term may seem self-evident. However, many omissions to act
are not regarded as nonfeasance at all but as only a part of some
larger action. If, driving your car, you fail to apply your brakes
when you approach a person in a crosswalk, you cannot defend his
claim for injury by saying you did nothing. In such a case, you
drove a car and did it very badly and will be chargeable with a
negligent act, not merely with nonfeasance. Similarly, if a
contractor acting under public authority digs a hole in the
highway, then fails to light it at night, courts do not think that
failing to light it is nonfeasance. The failure to light is merely one
part of a course of affirmative conduct—digging improperly
without lighting or guarding the excavation.26 With cases like
these in mind, courts very often instruct the jury that negligence
includes “the omission to do something” a reasonable person would
do as well as the doing of something a prudent person would not
do.27
But no rule has been formulated to prescribe whether courts are
to characterize conduct as affirmative action with an embedded
omission or as simple non-action. In
619
Jackson v. City of Joliet,28 an officer encountered a flaming car

that had gone off the road. He called the fire department and
directed traffic, but did nothing to rescue the occupants of the car
or to call an ambulance. One occupant, an expectant mother, died.
Quite possibly the officer’s actions were reasonable in the light of
the risks to himself. However, the court did not even consider
whether the officer was negligent or not. It concluded that, at least
in a civil rights claim, the officer’s conduct had to be viewed as a
failure to prevent death, not as an affirmative act causing death.
Since there are no settled criteria for distinguishing pure non-
action from conduct that includes a negligent omission, the
Jackson court may have been right. But it would be just as
plausible to say that the officer’s failure would be like the
contractor’s failure to light the excavation, rather than a case of
nonfeasance.29 That view would lead a court to consider whether,
under the circumstances, the officer was negligent or not. In
contrast, if the no-duty rule applies, courts do not determine
whether the defendant’s conduct was unreasonably risky or
whether it was justified.
Perhaps the cases as a whole would justify the unsurprising
and not so helpful conclusion that judges avoid extremes in
characterizing conduct. They do not characterize conduct by
segregating highly specific omissions (like failing to brake a car)
from closely related conduct (like driving). On the other hand, they
do not characterize conduct at its most abstract level, either. A
water company’s failure to provide water to a fire hydrant is not
likely to be viewed as a case of running a water company in a
negligent way, but rather as a case of mere nonfeasance for which
there is no liability in the absence of an exceptional duty.30
B. GENERAL DUTIES TO ACT AFFIRMATIVELY
TO RESCUE OR ASSIST
§ 25.3 Innocently Harming or Creating a Risk of
Harm
Defendant innocently causing harm. The defendant who knows
or should know that he has caused physical harm to the plaintiff,
even if caused without fault, owes a duty of reasonable care to
avoid further harm.31 If reasonable care requires it, he must act
affirmatively to minimize the harm he has innocently caused and
he is subject to liability for any additional harm caused by his
failure to do so. The defendant is subject to liability for the entire
harm done if he was negligent in the first place; but even if he
acted innocently in causing the initial harm, he is subject to
liability for the added harm he could have avoided by taking
reasonable steps.32 For instance, if the defendant’s railroad train
runs over the plaintiff and severs a limb, the defendant may not
refuse to provide
620
assistance even if the railroad was not negligent to begin with

and even if the plaintiff himself was contributorily negligent.33
Most states have adopted criminal “hit and run” statutes that
provide that a vehicle driver who causes an accident, even non-
negligently, cannot flee the scene without rendering reasonable
assistance to anyone who is injured.34
Defendant innocently risking harm. The same principle has
been applied when the defendant knows or should know that he
has innocently created a risk to others and the defendant has an
opportunity to minimize the risk before harm actually
eventuates.35 For instance, if the defendant, without fault, collides
with and kills a horse on the highway, reasonable care may oblige
him to take steps to warn others or have the animal removed. If he
does not do so and a second driver is later injured in striking the
carcass or attempting to avoid it, the defendant is again subject to
liability if he failed to exercise reasonable care.36
Perhaps neither of these exceptions will apply to aid the
plaintiff when the defendant is protected by a no-duty rule based
upon policy not associated with the failure-to-act rules.37 For
instance, Massachusetts limits the liability of social hosts to guests
who are injured when they become intoxicated by drinking the
host’s alcohol. The no-duty rule protecting the social host is not
altered by the innocent-harm and innocent-risk rules.38
§ 25.4 Special Relationship Between Plaintiff and
Defendant
Sometimes the defendant is under a duty to use reasonable care
to rescue (or to protect) the plaintiff because the defendant stands
in a special relationship to the plaintiff or to a person causing
harm to the plaintiff.39 When a legally recognized special
relationship exists, the defendant may be under a duty to use
reasonable care even when he has neither created the initial risk to
the plaintiff nor independently undertaken to rescue or protect the
plaintiff.40
Categorical relationships. The Second Restatement recognized
five kinds of formal relationships that require the defendant to use
reasonable care for the plaintiff’s safety, including reasonable
affirmative efforts to rescue.41 The Third Restatement’s list is
longer. According to the Third Restatement, the first person in all
these relationships owes a duty of reasonable care for the
protection of the second: (1) carrier-passenger;42 (2) innkeeper-
guest;43 (3) invitor-invitee, or possessor of land open to the public-
lawful
621
entrant;44 (4) employer-employee;45 (5) school-student;46 (6)

landlord-tenant;47 and (7) custodian-one in custody.48 The
relationship of a parent to a minor child likewise almost certainly
imposes an affirmative duty upon the parent to use reasonable care
to rescue the child from a known danger.49 Indeed, anyone who
assumes what some courts have called a protective relationship
will owe a duty of care appropriate to that relationship.50
The list is not necessarily closed, and in any event the duty of
reasonable care may be created even in the absence of the
categorical relationship if the defendant creates an unreasonable
risk in the first place, or undertakes a duty of care. For example, if
an employee-seaman goes overboard, the captain is required to
conduct a search even if there is little hope.51 A landowner whose
invitee becomes ill may have a duty to summon care or at least to
provide shelter until the invitee improves.52 Under the rubric of
custodian and ward, if the operator of a day-care center finds that
a child in his care is injured or ill, he is obliged to use reasonable
care to obtain appropriate medical attention.53 Under the same
principle, a jailer must secure medical aid and otherwise protect
those held in custody. If he fails to do so, he is subject to liability as
a matter of common law54 and also in a civil rights action under
the Eighth Amendment.55 In the absence of custody, however,
duties of rescue or protection under civil rights statutes may be
quite limited.56 Another way in which the Restatement list may be
incomplete is that highly transient relationships that cannot be
categorized may be sufficient to impose a duty.57
622

When the defendant acts affirmatively to aid a person who is
helpless, he must of course act with reasonable care,58 unless a
statute says otherwise. It will not do to lift the stranded plaintiff
from an ice gorge in a helicopter and then negligently drop her.
Liability for injuries incurred in the drop would appear to be based
upon negligent action, not upon any exception to the non-action
rule.59
The Third Restatement makes it clear that the rescuer who
“takes charge” must use reasonable care not to discontinue his aid
or protection in a way that leaves the plaintiff in a worse position
than existed before the defendant took charge.60 This duty is
frequently perceived to be different from the duty involved in the
helicopter rescue illustration in the preceding paragraph.
Negligently dropping the person you are rescuing is ordinary
negligence, but the discontinuing aid can be conceived of as doing
nothing. Under that conception, the Restatement provision is
requiring the rescuer to take affirmative acts of care. The rule goes
further: the rescuer must not unreasonably discontinue aid even if
the imperiled plaintiff is not relying on that aid, as might be the
case, for example, if the plaintiff was unconscious at the time.61
The Third Restatement’s blackletter rule permits the rescuer to
discontinue aid if the imperiled plaintiff is left in a no-worse
position than if the defendant had not taken charge or undertaken
care. That might seem to imply that one could begin towing a
drowning swimmer to shore, then give up on the effort when the
swimmer is halfway to shore. However, the Restatement provides
otherwise by further requiring the rescuer to use reasonable care
in terminating rescue efforts if the plaintiff is in imminent peril;62
it nails down this point by adding that once the rescuer brings the
plaintiff to safety, he may not return him to danger, even if the
danger is no greater than the plaintiff would have faced without
rescue.63
To the extent that the rescuer’s liability for discontinuing aid
depends upon making matters worse than they were before a
rescue was begun, it seems fair to say that matters will not be
worse for the helpless victim unless someone relies on the
appearance of safety or rescue, or the rescue attempt prevents
salvation by other means.64 On this, perhaps courts are willing to
accept very sparse evidence of reliance. When a customer became
ill, a department store put her in its infirmary for six hours, but
provided no medical attention. The court assumed that had the
store done nothing, some good-hearted
623
bystander would have provided an ambulance.65 When the

Coast Guard misread its incoming messages and wrongly informed
people that a vessel in distress had arrived safely, its negligence
dissuaded a private person from a search by ship, and the court
was seemingly willing to assume that the search would have been
successful.66
Perhaps these cases are best explained by saying that, when it
comes to the rescue situation, courts apply a kind of lost-chance
reasoning67—that is, that loss of a chance will count as worsening
the victim’s position even if it is less than clear that there was a
decent chance of the victim’s being saved. To say that loss of a
chance of rescue is enough to show worsened position is not, of
course, to say that the court must accept loss-of-the-chance or
increased-risk reasoning generally.68
Good Samaritan statutes. All states have adopted one or more
“good Samaritan” statutes, which typically immunize particular
classes of people against negligence liability for offering assistance
in specified kinds of emergencies; most commonly, these apply to
medical personnel.69 A good number of states, however—over a
dozen—extend this protection to “all persons,” usually protecting
them from negligence liability for providing emergency assistance
at the scene of an accident, as long as they have not received
payment for their assistance.70 The purpose of these statutes is to
encourage people to provide emergency care or services without
fear of negligence liability.71 Liability under these statutes follows
only where the rescuer acts in a grossly negligent way, or as some
statutes have it, willfully or wantonly. These statutes have been
held to immunize lay people who negligently assisted plaintiffs in
need of rescue;72 where the statute is inapplicable, however, the
general rule—that a defendant is liable for negligently assisting—
will apply.73
§ 25.6 Undertaking Creating a Duty to the
Plaintiff
Undertaking or Assuming a Duty
Undertaking as promise or commitment. Special relationships
that impose a duty may arise from status, as in the case of parent
and child, or jailer and prisoner. Special relationships may also
arise from voluntary contracts or undertakings.74 An undertaking
624
in this sense is a kind of explicit or implicit promise, or at least
a commitment,75 conveyed in words or in conduct. The undertaking
may be and usually is entirely gratuitous.76 The general rule that
undertakings can create a duty of care is often expressed by saying
one who voluntarily assumes a duty must then perform that duty
with reasonable care.77 Undertakings expressed verbally and those
expressed by action or implication may be equally enforceable.
Some undertakings may be enforceable as contracts but
undertakings relating to physical safety of person or property
usually suggest that the rules and policies of tort law should
apply.78
Duty created by undertaking. Although a defendant’s actions as
well as words may count as undertakings, some actions by a
defendant are negligent and harmful independent of any supposed
undertaking. If a defendant leads a child across the street into the
path of a vehicle, he has acted negligently and there is no need to
discuss “undertakings,” only the duty of ordinary care and its
breach.79 On the other hand, if the defendant’s words or actions
show an undertaking to escort children across the street but the
defendant never shows up to do the job and children are struck in
crossing alone, courts and writers usually think the defendant has
not “acted” at all, so that a source of affirmative duty must be
found. The defendant’s undertaking is such a source.
A person who undertakes actions that would increase physical
safety80 for the plaintiff is under a duty to use reasonable care to
carry out his undertaking, but only if one of two conditions is met.
The plaintiff must show either (1) that the defendant’s failure to
exercise reasonable care increased the risk of harm so that it was
more than it would have been with no undertaking,81 or (2) that
the plaintiff relied on the
625
undertaking.82 At least this is the rule usually advanced,

although it may be possible that in some cases the defendant will
be held to a duty even if neither condition is met.83
The Increased-Risk Avenue
The double relevance of increased risk. Increased risk in an
undertaking case is important in two ways. First, an undertaking
might actively work to create risks. In that case the undertaking is
itself an affirmative act of negligence and it rightly suffices as a
basis for liability.84 For example, if one of two workers at a day-
care center assures the other worker that he will take a comatose
child to the emergency room, his assurance or undertaking creates
the risk that the other will not take needed action. In such a case
the child at risk does not rely; she is comatose. Nevertheless, the
risk to the child is increased as a result of the undertaking and its
non-performance, and that is enough.85
Second, the increased-risk clause limits liability to harms
resulting from the risk that the undertaking was intended or
reasonably expected to protect against. A New Jersey case86
illustrates the point. The plaintiff’s band contracted to play at the
defendant’s place of business and the defendant contracted to
provide helpers to unload band equipment. The defendant
breached this provision and the plaintiff had to load the equipment
himself. While he was doing so, he slipped and suffered injury. The
defendant’s non-performance of his undertaking to provide helpers
to do the loading was a cause in fact of the harm. But the
undertaking was not about avoiding falls, and liability grounded on
the undertaking was inappropriate.
The Reliance Avenue
Action as undertaking. The Restatement rules also impose a
duty to act affirmatively (and with reasonable care) when the
defendant undertakes action and the plaintiff relies upon the
undertaking.87 An undertaking assuredly includes an express
promise,88 but it also includes actions that express an intention or
commitment to act. If a city always provides crossing guards for
children walking to school, that action is an undertaking to
continue the protection until notice to the contrary. If a public
entity provides 911 emergency service, it is undertaking to exercise
reasonable care in its operation, at least when assurances are
given to a specific victim who is in significant contact with the
system.89
626
Reliance by the plaintiff. Under the reliance alternative, as

distinct from the increased-risk alternative, the plaintiff must
show reliance on the defendant’s undertaking or assumed duty.90
Reliance shows that the defendant’s failure to live up to his
undertaking was a factual cause of the plaintiff’s harm. The
probability that the plaintiff relied is a matter of judging human
behavior, thus well within the competence of the jury in many
cases without the need for expert testimony.91 Perhaps the reliance
must be foreseeable or justified,92 but at least reliance in fact is
required unless perhaps the plaintiff and defendant are in one of
the categorical relationships such as carrier and passenger.93 If a
child is struck in an unguarded crosswalk where guards have
always been provided before, liability for negligently failing to
provide the guard follows if the parents relied on the guard.
Reliance is possible only when the parent has knowledge of the
undertaking and has a choice whether to provide some other
means of protection. Testimony that the parents knew that a guard
was regularly provided and would have taken the child to school
themselves if they had known that guards would be withdrawn
shows reliance and permits recovery.94
In the same circumstances, however, the reliance requirement
can defeat the claim for the child’s injury if the child’s parent did
not know that guards had been provided. The reliance requirement
would also defeat liability if the parent knew of the guards but,
because she was working the early shift, could not have taken the
child to school herself or found other means of protection. In that
case, the parent would have no choice and could hardly be said to
have relied on the guard since she could not have changed her
actions even if she had known that the guards had been
withdrawn. So if two children are struck in the same crosswalk at
the same time because the protection of a crossing guard had been
discontinued, only the one whose parents could have themselves
escorted the child could recover for withdrawal of the guard.95
Some authority seems more lenient in finding reliance.96 There
is even the possibility that a person could rely even though she has
learned that the defendant is not performing the promise at the
time of injury. That might occur, for example, if the plaintiff enters
into a lease only because the landlord promises or represents that
specific safety devices will be installed. Although the tenant may
be aware after she moves in
627
that the safety devices are not installed, it can be said that she
relied on the promise by executing the lease. In this view, the fact
that she remains on the unsafe premises after she learns that they
are unsafe does not negate the reliance demonstrated when she
signed the lease but instead goes to the issue of comparative
fault.97 Finally, the undertaking itself may be so broad that
reliance can easily be found, for example, if the defendant
undertakes to care for a small child while the parents are at
work.98
What duty is undertaken? A number of cases that accept the
principles of duty based on undertakings end up concluding that
the duty undertaken was not one that would have saved the
plaintiff and consequently that the plaintiff cannot recover.99 For
example, in another crossing-guard case, the school provided
guards in the afternoons after school, but that was not construed
as an undertaking to provide guards when the kindergarten
children walked home much earlier, so the school breached no duty
to such a kindergartner who was struck at the dangerous and
unguarded crossing.100 Actions without promises are often
ambiguous ways of showing an undertaking. Courts sometimes
seem to believe that the defendant undertakes only what he
actually does, which would mean that the defendant could never be
liable because he would always have fulfilled his undertaking.101 A
moderate position determines the scope of the defendant’s assumed
duty by considering the plaintiff’s reasonable expectations of care
induced by the defendant’s actions,102 although reliance cannot be
required when the plaintiff is unconscious or helpless.103 Some
authority suggests that whether the defendant’s actions count as
an undertaking depends on an assessment of the defendant’s
purposes; if it is as likely that he acted for his own purposes as it is
that he acted to aid the plaintiff, the plaintiff has not proved that
he undertook a duty to her, at least where the plaintiff has not
reasonably relied upon appearances to the contrary.104 The Third
Restatement rejects this view, providing that although the
defendant must know that his undertaking reduces risk to the
plaintiff, the undertaking may be for his own benefit rather than
the plaintiff’s.105
§ 25.7 Undertaking Creating a Duty to Third
Persons
Active negligence. The defendant is of course under a duty to
exercise reasonable care in his affirmative activities. If his
unreasonably risky affirmative acts cause harm,
628
he is subject to liability for that harm. In that case, whether he

has undertaken or promised something to a third person is entirely
irrelevant; what is relevant is that he did something and did it
negligently.106 The problem addressed in this section is different. It
concerns the defendant who, in his dealings with one person, can
be perceived as having undertaken actions that will provide safety
for a different person, but who has not begun performance of those
actions and thus cannot be said to have been engaged in risk-
creating conduct. The defendant promises to keep A’s brakes in
good condition, but never lifts a finger to do so, with the foreseeable
result that when A’s brakes fail, the others with whom the
defendant has not dealt at all are injured. In this third-party
nonperformance situation, courts once rejected all liability on the
grounds that the plaintiff was not in privity with the defendant107
and that the defendant was chargeable only with nonfeasance, not
affirmative acts of negligence.108 However, modern tort law makes
room for negligence liability under a series of rules.
Contemporary rules. The defendant who makes an undertaking
to A may be under a duty of reasonable care to others to perform
that undertaking if the defendant should know that his failure to
act on his undertaking would increase the risks of physical harm to
others, provided that one of three conditions is met: (1) the
defendant’s breach of the duty undertaken made matters more
dangerous for the plaintiff; or, (2) the plaintiff or another relied
upon the undertaking; or (3) the defendant’s undertaking was to
perform a duty already owed by another person. The duty of care
as so described by the Restatements109 has been widely recognized
in the courts.110 The defendant’s undertaking generates a duty of
reasonable care whether it is an enforceable promise or merely a
gratuitous undertaking.111 The duty does not extend to stand-alone
economic harms, however, but only to those harms that can be
considered to be associated with the plaintiff’s physical well-
being.112
Non-performance increasing risk of physical harm. When the
defendant, dealing with A, undertakes or contracts to carry out
acts that he should know will tend to make B safer from physical
harm, every reason supports a duty of care to B to carry out his
undertaking unless he arranges to safely withdraw from it. Where
the defendant promises a city to repair a malfunctioning traffic
signal, his failure to act on the promise creates a definite risk of
harm to travelers from readily foreseeable intersection collisions.
In such cases courts have imposed a duty to use care to perform the
undertaking and have recognized that liability will be appropriate
if the plaintiff is
629
injured by a breach of that duty.113 The same of course applies

to other similar undertakings, such as the undertaking to repair a
dangerous elevator.114
Some cases, following the Restatement, take the position that
there is no increased risk unless the defendant’s non-performance
made the risk greater than it would have been if the defendant had
undertaken nothing at all.115 Risk to the plaintiff is not compared
with the risk the plaintiff would face if the defendant had safely
performed his undertaking. Instead, it is compared to the risk the
plaintiff would face if the defendant had never made any
undertaking at all. In the traffic-signal cases, the fact that the
defendant promised to repair a malfunctioning traffic signal does
not by itself make the signal more dangerous than it would have
been if the defendant had not undertaken repair. Therefore, under
this view, such defendants would have no duty to the foreseeable
victims unless he was negligent in some affirmative act, or one of
the other alternative conditions for liability is met.
Non-performance of undertaking relied upon by another. If the
plaintiff or some other person relies on the defendant’s
undertaking to provide better safety, then that by itself is
sufficient to trigger a duty of reasonable care to perform his
undertaking or to effect a safe withdrawal from it.116 Although
reliance is enough by itself, reliance will often also show that the
undertaking increased the risk, so under the restrictive view of
increased risk adopted by the Restatement, reliance will often
become the ultimate issue.117 The plaintiff need not personally rely
if someone else does. For example, the Coast Guard’s undertaking
to rescue someone might induce other potential rescuers to rest on
their oars. This is reliance on the Coast Guard’s undertaking and it
is ground for saying that the Coast Guard is subject to liability for
failing to proceed with the rescue it undertook.118
Non-performance when defendant undertakes to perform
another person’s existing duty. When the defendant undertakes
with Person A to perform a duty owed by A to the plaintiff, the
defendant is then duty-bound to exercise reasonable care for the
plaintiff’s physical safety in accord with that duty.119 For example,
an employer owes his employees a duty of reasonable care,
including a duty to provide a reasonably safe place in which to
work. If the employer contracts with the defendant to provide that
workplace safety, then the defendant is contracting to fulfill the
employer’s duty and is obliged to use
630
reasonable care in doing so.120 The principle can apply to any

case in which the defendant accepts responsibility for carrying out
the safety duty of another.121 The defendant who undertakes to
perform another’s duty of care for the plaintiff’s physical safety is
subject to liability for breach of that duty even if his undertaking
did not increase the risk and even if no reliance on the undertaking
is proven.122 This is clearly right. If Person A owes a duty of care to
the plaintiff, A may avoid liability by taking reasonable
precautions to protect the plaintiff, including a precaution in the
form of a contract with another person to provide the protection
needed. So A can normally shift either all or part of the
responsibility and be relieved of liability by contracting with the
defendant to perform A’s duties of care.123 By the same token,
however, the defendant must be held to the duty he has assumed,
for otherwise the plaintiff’s rights would have been determined by
the contract of two other people to which he was not a party.124 In
addition, when the defendant contracts to fulfill A’s duty to the
plaintiff, the plaintiff may look like a creditor beneficiary entitled
to sue for a breach of the contract that leads to her injury.125
Policy against recognizing a duty in particular cases. To
recognize a duty of care based on the defendant’s undertaking is
fully consonant with modern tort thinking, but, as always, the duty
issue ultimately turns on the courts’ sense of policy and justice.
Consequently, even if the defendant has undertaken to act for the
plaintiff’s safety, the court may conclude that a duty of care is
unwarranted on the facts of the particular case.126 In a
Massachusetts case, a tenant promised the landlord that the
tenant would clear snow and ice from the property. The plaintiff
was employed on the property, though not by the tenant. She fell
on a patch of ice. Since the tenant owed no common law duty to
clear the ice, the plaintiff relied upon the tenant’s promise to the
landlord. But the defendant’s promise to the landlord was not
intended for the benefit of third persons and Massachusetts has a
strong policy against imposing snow-clearance duties. So not
surprisingly, the court refused to permit the tenant’s promise to
create a tort duty.127
631
Such a result is entirely consistent with a general acceptance of

the assumed-duty rules recognized by the Restatement in cases
that do not involve the same policies.
Scope of assumed duty or undertaking. The Third Restatement
does not limit liability for third-person undertakings to cases in
which the defendant intended to provide protection for the
plaintiff. If the defendant’s undertaking increases the risk or
induces reliance or assumes the duty already owed by another, it is
enough that the defendant knows or should know that his
undertaking will also reduce the risk of physical harm to others.128
Yet, the scope of the undertaking can matter a great deal if the
limitation of the undertaking makes risk or reliance unforeseeable.
In such a case, and if the defendant’s duty arises solely from his
undertaking, the scope of his undertaking can limit the scope of his
duty.129 The trouble is that, as observed in another connection,130
undertakings in the form of actions rather than words are often
ambiguous. An adjuster’s inspection of a dangerous building to
determine whether damage to the building comes within insurance
coverage is not necessarily an undertaking to warn neighbors of
dangers that the building may collapse on them, or indeed an
undertaking to anyone except the insurer who employed him.131
________________________________
1 The no-duty-to-act rule takes on a somewhat different form in the
insistence that the defendant is under no duty to protect the plaintiff from
harm by a third person. See Chapter 26.
2 See, e.g., Williams v. Southern Calif. Gas Co., 176 Cal.App.4th
591, 98 Cal.Rptr.3d 258 (2009) (rule applies “no matter how great the
danger in which the other is placed, or how easily he or she could be
rescued and even if the actor realizes or should realize that action on his
part is necessary for another’s aid or protection”) (internal citations
omitted).
3 Restatement Second of Torts § 314, Illus. 1 (1965). See also
37 & 38 (2010) (covering the same ground, also making it clear that the
defendant does not escape liability if he has himself created a risk of
physical harm).
4 See Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) (although
defendant had challenged a neighbor to jump into a pit of water on the
defendant’s land, defendant had no duty to save the neighbor when he was
drowning); Long v. Patterson, 198 Miss. 554, 22 So.2d 490 (1945) (no duty
to warn of dangerous approaching traffic); Cilley v. Lane, 985 A.2d 418
(Me. 2009) (no duty owed by homeowner, whose former boyfriend
committed suicide in her house, to render any emergency assistance to
him); Krieg v. Massey, 239 Mont. 469, 781 P.2d 277 (1989) (manager of
apartment house, who had power to take gun from suicidal tenant, had no
duty to do so and is not liable for his death); cf. Rocha v. Faltys, 69 S.W.3d
315 (Tex. App. 2002) (facts very similar to those in Yania, supra, with
same result on slightly different reasoning).
5 See James Barr Ames, Law and Morals, 22 Harv. L. Rev. 97, 111–
13 (1908) (critical of the rule); Francis H. Bohlen, The Moral Duty to Aid
Others as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217 (1908)
(supporting the rule as reflecting a basic distinction between misfeasance
and nonfeasance, which is “founded on that attitude of extreme
individualism so typical of Anglo-Saxon legal thought”).
6 See Richard Epstein, A Theory of Strict Liability, 2 J. Leg. Studies
151, 198 ff. (1973); Philip W. Romohr, A Right/Duty Perspective on the
Legal and Philosophical Foundations of the No-Duty-to-Rescue Rule, 55
Duke L.J. 1025 (2006); James A. Henderson, Jr., Process Constraints in
Tort, 67 Cornell L. Rev. 901 (1982); Saul Levmore, Waiting for Rescue: An
Essay on the Evolution and Incentive Structure of the Law of Affirmative
Obligations, 72 Va.L.Rev. 879, 938 (1986); David A. Hyman, Rescue
Without Law: An Empirical Perspective on the Duty to Rescue, 84 Tex. L.
Rev. 653 (2006); Marin Roger Scordato, Understanding the Absence of a
Duty to Reasonably Rescue in American Tort Law, 82 Tul. L. Rev. 1447
(2008).
7 E.g., Ernest J. Weinrib, The Case for a Duty to Rescue, 90 Yale L.
J. 247 (1980); Steven J. Heyman, Foundations of the Duty to Rescue, 47
Vand. L. Rev. 673 (1994); Richard L. Hasen, The Efficient Duty to Rescue,
15 Int’l Rev. L. & Econ. 141 (1995); Amelia H. Ashton, Rescuing the Hero:
The Ramifications of Expanding the Duty to Rescue on Society and the
Law, 59 Duke L.J. 69 (2009).
8 See § 25.3.
9 See § 25.4.
10 See § 25.5.
11 See §§ 25.6 & 25.7.
12 Duty does not equate to liability, of course; finding a duty is
merely a step that permits evaluation of the negligence and causal issues.
13 Soldano v. O’Daniels, 141 Cal. App. 3d 443, 190 Cal. Rptr. 310, 37
A.L.R. 4th 1183 (1983).
14 Soldano, 141 Cal.App.3d at 451–52.
15 Podias v. Mairs, 394 N.J.Super. 338, 926 A.2d 859 (App. Div.
2007).
16 See Podias v. Mairs, 2008 WL 4763275 (N.J. Super. App. Div.
2008) (unpublished) (after remand).
17 Podias v. Mairs, 394 N.J.Super. 338, 351–52, 926 A.2d 859, 866–
67 (App. Div. 2007).
18 See Soldano v. O’Daniels, 141 Cal. App.3d 443, 452–53, 190
Cal.Rptr. 310 (1983) (stating that the facts “come very nearly” within
Restatement Second’s § 327, which imposes a duty not to prevent another
person from giving aid to another); Podias v. Mairs, 394 N.J.Super. 338,
352, 926 A.2d 859, 867 (App. Div. 2007) (“Even assuming no independent
duty to take affirmative action, at the very least defendants were
obligated, in our view, not to prevent Mairs from exercising his direct duty
of care.”).
19 While some label these “good Samaritan” statutes, they are more
properly called “bad Samaritan” statutes. “Good Samaritan” statutes
immunize from negligence liability those defendants who do assist a
plaintiff in distress; such statutes are most often limited in their scope to
medical personnel and the provision of medical assistance. See § 21.13
(medical personnel) & § 25.5 (non-medical personnel). The statutes
discussed in this section, by contrast, place a defendant under some form
of legal duty to assist and provide for criminal or civil liability for non-
assistance. Perhaps the label-confusion is understandable since many of
the “bad Samaritan” statutes also have a “good Samaritan” provision—
meaning that these statutes both place the defendant under an affirmative
duty to assist, then provide for an immunity where the assistance is
provided negligently. Most civil-law countries have some form of duty-to-
rescue provision, usually in their criminal code. See Damien Schiff,
Samaritans: Good, Bad and Ugly: A Comparative Law Analysis, 11 Roger
Williams U. L. Rev. 77 (2005); see also Julie A. Davies & Paul T. Hayden,
Global Issues in Tort Law 120–29 (2008) (comparing the common law
approach to that of France and Germany).
20 Vt.Stat.Ann. tit. 12, § 519(a). Paragraph (b) of the same statute
provides that a person who provides such “reasonable assistance” is
immune from civil liability “unless his acts constitute gross negligence or
unless he will receive or expects to receive remuneration.” The net effect,
then, is to place a defendant under an affirmative duty to provide
assistance if the circumstances described in the statute present
themselves (the “bad Samaritan” part), but then to immunize a defendant
who begins to assist unless he does so in a “grossly negligent manner” or is
paid for his help (the “good Samaritan” part). “Reasonable assistance”
refers to “the extent of the rescuer’s effort to comply with the statutory
duty to render aid, not to the adequacy of the aid actually rendered.”
Hardingham v. United Counseling Service of Bennington, 164 Vt. 158, 667
A.2d 289 (1995).
21 Minn. Stat. § 604A.01
22 R.I. Gen. Laws § 11–56–1.
23 See David A. Hyman, Rescue without Law: An Empirical
Perspective on the Duty to Rescue, 84 Tex. L. Rev. 653, 657 & n.7 (2006)
(finding no reported prosecutions under the various statutes).
24 See, e.g., Kane v. Lamothe, 182 Vt. 241, 936 A.2d 1303 (2007).
25 See Wis. Stat. Ann. § 940.34; Fla. Stat. § 794.027; Mass Gen. Laws
ch. 268, § 40; Hawai’i Rev. Stat. § 663–1.6; Wash. Rev. Code § 9A.36.160.
26 Newton v. Ellis, 5 El. & Bl. 115, 119 Eng. Rep. 424 (K.B. 1855).
Compare Smit v. Anderson, 72 P.3d 369 (Colo. App. 2002) (characterizing
a contractor’s failure to supervise as misfeasance rather than
nonfeasance), with Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 841
N.E.2d 747, 807 N.Y.S.2d 588 (2005) (treating an allegation of failure to
light a theater as nonfeasance).
27 Many cases have adopted this language from Blyth v.
Birmingham Waterworks Co., 11 Ex. 781, 156 Eng.Rep. 1047 (1856).
28 Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983).
29 See, e.g., Pehle v. Farm Bureau Life Ins. Co., Inc., 397 F.3d 897,
902 (10 Cir. 2005) (defendant’s failure to notify life insurance applicants
that tests indicated HIV-positive status “could be considered a normal part
of testing for HIV” rather than nonfeasance); Lugtu v. California Highway
Patrol, 26 Cal.4th 703, 110 Cal.Rptr.2d 528, 28 P.3d 249 (2001) (highway
patrolman’s failure to protect plaintiffs from injury when he pulled them
over into the median was not nonfeasance; it was “affirmative conduct”
that “created a serious risk of harm”).
30 H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E.
896 (1928). For a discussion of how Moch relates to modern approaches to
undertakings, see 2 Dobbs, Hayden & Bublick, The Law of Torts 412 (2d
ed. 2011 & Supp.).
32 L.S. Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334, 41 N.E.2d
195 (1942) (injury innocently caused by defendant’s instrumentality, or by
master or invitor); South v. National Railroad Passenger Corp., 290
N.W.2d 819 (N.D. 1980) (railroad employees refused to assist victim of
crossing accident, liability).
33 Maldonado v. Southern Pac. Transp. Co., 129 Ariz. 165, 629 P.2d
1001 (Ct. App. 1981).
34 See W.J. Dunn, Annotation, Violation of statute requiring one
involved in an accident to stop and render aid as affecting civil liability, 80
A.L.R.2d 299 (1961).
Harm) § 39 (2010); Restatement Second of Torts § 321(1) (1965).
36 Pacht v. Morris, 107 Ariz. 392, 489 P.2d 29 (1971).
Emotional Harm) § 39, cmt. b (2010).
38 Panagakos v. Walsh, 434 Mass. 353, 749 N.E.2d 670 (2001).
39 E.g., Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 113 P.3d 1159,
30 Cal. Rptr. 3d 145 (2005); see generally Marshall S. Shapo, The Duty to
Act: Tort Law, Power & Public Policy (1977).
40 On whether the special relationship itself is the source of duty, or
whether it is merely the language courts may use when they believe a duty
should be applied, see W. Jonathan Cardi & Michael D. Green, Duty Wars,
81 S. Cal. L. Rev. 671, 677 n.36 (2008).
41 Restatement Second of Torts §§ 314A & 314B (1965).
42 See §§ 19.1 to 19.3 & 26.3.
43 E.g., Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428
(2006); see George L. Blum, Annotation, Liability of Hotel or Motel
Operator for Injury to Guest Resulting from Assault by Third Party, 17
A.L.R.6th 453 (2006); see also §§ 19.4 & 26.3.
44 E.g., Cilley v. Lane, 985 A.2d 481 (Me. 2009) (rejecting a duty to
assist on the part of a homeowner where the entrant was a trespasser); see
also § 26.4.
45 See § 26.8.
46 Doe Parents No. 1 v. State Dep’t of Educ., 100 Hawai’i 34, 58 P.3d
545 (2002); Mirand v. City of New York, 84 N.Y.2d 44, 614 N.Y.S.2d 372,
637 N.E.2d 263 (1994); see § 418.
47 See § 26.5.
48 See, e.g., Bell ex rel. Bell v. Dawson, 82 A.3d 827 (Me. 2013) (but
duty created by custodial relationship terminates with the ending of the
relationship itself); Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 40 (2010); see also § 26.6.
49 When the issue is protection from third persons, courts often
implicitly so recognize. E.g., A.R.H. v. W.H.S., 876 S.W.2d 687 (Mo. App.
1994) (grandmother); Hite v. Brown, 100 Ohio App. 3d 606, 654 N.E.2d
452 (1995) (mother).
50 Caulfield v. Kitsap County, 108 Wash.App. 242, 29 P.3d 738
(2001) (social service department and county that took over its duties to
monitor home care of the vulnerable plaintiff owed the plaintiff a duty).
51 Gardner v. National Bulk Carriers, Inc., 310 F.2d 284, 91 A.L.R.2d
1023 (4th Cir. 1962).
52 See Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173 (3d Cir.
1993).
53 See Applebaum v. Nemon, 678 S.W.2d 533 (Tex. App. 1984);
Restatement Second of Torts § 314A, Illus. 7 (1965).
54 See Brownelli v. McCaughtry, 182 Wis.2d 367, 514 N.W.2d 48
(1994).
55 Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976).
56 See § 26.7.
57 Farwell v. Keaton, 396 Mich. 281, 240 N.W.2d 217 (1976) (plaintiff
and defendant were “companions on a social venture” with an implicit
undertaking to aid one another, sufficient to trigger a duty); Podias v.
Mairs, 394 N.J.Super. 338, 352, 926 A.2d 859, 867 (App. Div. 2007) (duty
to assist, partly on the ground that two passengers in a car driven by their
friend had “some relationship not only to the primary wrongdoer but to the
incident itself,” in which the driver struck a motorcyclist and all three
failed to assist). Restatement Second of Torts § 314A, cmt. b (1965), notes
that the law seems to be “working slowly toward a recognition of the duty
to aid or protect in any relation of dependence or of mutual dependence.”
Many courts have been more cautious in recognizing ad hoc relationships
as triggers of duty. See, e.g., Fiala v. Rains, 519 N.W.2d 386 (Iowa 1994);
Cilley v. Lane, 985 A.2d 481 (Me. 2009); Carter v. Abbyad, 299 S.W.3d 892
(Tex. App. 2009).
58 E.g., Collins v. Thomas, 182 Vt. 250, 938 A.2d 1208 (2007) (driver
of pickup truck did not breach a duty of reasonable care after volunteering
to drive the intoxicated plaintiff, where he had the plaintiff sit in the bed
of the pickup; while he owed a duty of reasonable care, he was entitled to
expect that the plaintiff would exercise reasonable caution for his own
safety in the back of the truck); see § 414.
Emotional Harm) § 44, cmt. h (2010); Restatement Second of Torts §
324(a) (1965).
Harm) § 44(b) (2010).
61 Id. § 44. In this respect, an undertaking to rescue is treated
differently from some other undertakings. See § 25.6.
Harm) § 44(b) (2010).
63 Id. § 44, cmt. h.
64 Indeed, one of the clearest examples of leaving a victim “worse off”
than she would have been had aid never commenced is where others who
would have assisted do not do so, based on the appearance that the rescuer
has taken charge and further assistance is not needed. Restatement
Second of Torts § 314A(4) (1965); see Coville v. Liberty Mut. Ins. Co., 57
Conn.App.275, 748 A.2d 875 (2000). It is an even clearer case where the
would-be rescuer affirmatively interferes with others’ ability to assist. See,
e.g., Podias v. Mairs, 394 N.J. Super. 338, 926 A.2d 859 (App. Div. 2007);
Restatement Second of Torts § 326 (1965) (intentionally interfering with
another person’s assistance is actionable).
65 Zelenko v. Gimbel Bros., 158 Misc. 904, 287 N.Y.S.134 (1935), aff’d
per curiam, 247 A.D. 867, 287 N.Y.S. 136 (1936).
66 United States v. DeVane, 306 F.2d 182 (5th Cir. 1962); see also
Fochtman v. Honolulu Police and Fire Departments, 65 Hawai’i 180, 649
P.2d 1114 (1982) (private person would have investigated frantic flashlight
signal if police had not assured him they would check it out).
67 See § 14.11.
68 In particular, it is not to say that the Restatement Second’s § 323
supports lost chance claims. See Restatement Second of Torts § 319 (1965).
69 See § 21.13; Danny R. Veilleux, Annotation, Construction and
application of “good Samaritan” statutes, 68 A.L.R.4th 294 (1989).
70 See, e.g., Cal. Health & Safety Code § 1799.102; Ga. Code Ann. §
51–1–29; Minn. Stat. Ann. § 604A.01(2); Nev. Stat. § 41.500; N.J. Stat.
Ann. § 2A:62A–1; N.Y. Pub. Health L. § 300–a(1); Tex. Civ. Prac. & Rem.
Code § 74.151; Vt. Stat. Ann. § 519(b); Rev. Code Wash. § 4.24.300; Wis.
Stat. Ann. § 895.48(1).
71 In re Certification of a Question of Law from the United States
District Court, 779 N.W.2d 158 (S.D. 2010).
72 See, e.g., In re Certification of a Question of Law from the United
States District Court, 779 N.W.2d 158 (S.D. 2010); Swenson v. Waseca
Mut. Ins. Co., 653 N.W.2d 794 (Minn. 2002).
73 See, e.g., Mueller v. McMillian Warner Ins. Co., 290 Wis.2d 571,
714 N.W.2d 183 (2006).
74 See Grimes v. Kennedy Krieger Institute, Inc., 366 Md. 29, 782
A.2d 807 (2001) (contract between researcher and his human subject could
create a special relationship and concomitant duty of care apart from the
express terms of the contract). Courts widely recognize that undertakings
amounting to the assumption of a duty of reasonable care can create a
duty where otherwise none existed, see Davis v. Venture One Const., Inc.,
568 F.3d 570 (6th Cir. 2009), even against municipalities which are
frequently protected by no-duty rules. See Wolfe v. City of Wheeling, 182
W. Va. 253, 387 S.E.2d 307 (1989). However, courts occasionally overlook
or ignore the point and insist that an undertaking would be actionable
only “in contract” if it is actionable at all. See Lockhart v. Airco Heating &
Cooling, Inc., 211 W.Va. 609, 567 S.E.2d 619 (2002); Spengler v. ADT
Security Services, Inc., 505 F.3d 456 (6th Cir. 2007) (home alarm
company’s obligation to dispatch emergency services is enforceable only in
a breach of contract action).
75 See E. Allan Farnsworth, Decisions, Decisions: Some Binding,
Some Not, 28 Suffolk U. L. Rev. 17 (1994). On whether a gratuitous
promise, where the defendant does nothing toward performance, can
create a duty, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 411 (2d
ed. 2011 & Supp.); Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 42, cmt. e (2010) (gratuitous promises as well as
gratuitous actions that reduce danger may be the basis for demanding
reasonable care for the plaintiff’s physical safety).
76 The “takes charge” cases, see § 25.5, may be regarded as a species
of commitment expressed in conduct.
77 See, e.g., Lokey v. Breuner, 2010 MT 216, 358 Mont. 8, 243 P.3d
384 (2010) (truck driver who waved at motorist approaching from opposite
direction, signaling that it was safe for him to turn left, assumed a duty of
reasonable care to assure that the parallel lane was clear); Carignan v.
New Hampshire Int’l Speedway, Inc., 151 N.H. 409, 858 A.2d 536 (2004) (if
defendant posted a man to signal traffic from highway to defendant’s
establishment, defendant owed a duty of care to persons on the highway);
Florence v. Goldberg, 44 N.Y.2d 189, 375 N.E.2d 763, 404 N.Y.S.2d 583
(1978).
78 See §§ 25.6 & 25.7.
Harm) § 42, cmt. c & Ill. 2 (2010).
80 See, e.g., Landon v. Kroll Laboratory Specialists, Inc., 91 A.D.3d
79, 934 N.Y.S.2d 183 (2d Dep’t 2011) (state-licensed laboratory that
contracted with county probation department to do drug testing on
plaintiff as a condition of probation owed him a duty of reasonable care in
doing the test, and could be liable to him for its negligence in reporting a
false positive result to county probation officials, despite the lack of any
formal contractual relationship between plaintiff and defendant);
42, cmt. c & Ill. 2 (2010).
81 See Belhumeur v. Zilm, 949 A.2d 162 (N.H. 2008); MacGregor v.
Walker, 322 P.3d 706 (Utah 2014).
Harm) § 42 (2010).
83 The Third Restatement, finding no pattern of cases, takes no
position on this. Restatement Third of Torts (Liability for Physical and
Emotional Harm) § 42, cmt. f (2010).
84 As the court said in Herrington v. Deloris Gaulden, 294 Ga. 285,
751 S.E.2d 813 (2013), liability does not attach when an undertaking
merely fails to decrease the risk of harm.
85 Increased risk will often result from the reliance upon the
undertaking by the plaintiff or someone acting upon her behalf, as where
the city undertook to maintain a fence between a playground and a river
and a mother relied upon the integrity of the fence in allowing her child to
play. Nelson v. Salt Lake City, 919 P.2d 568 (Utah 1996). The separate
provision for increased risk as well as for reliance allows courts to
recognize a duty even if the plaintiff herself or her agent did not rely. The
Third Restatement specifies that reliance by “another” is sufficient.
43(c) (2010).
86 Coyle v. Englander’s, 199 N.J. Super. 212, 488 A.2d 1083 (1985).
Harm) § 42 (2010); Restatement Second of Torts § 323(b) (1965).
88 See Bourgonje v. Machev, 841 N.E.2d 96, 112, 298 Ill. Dec. 953,
969 (2005) (landlord’s promise of safety); Sabia v. State, 164 Vt. 293, 669
A.2d 1187 (1995) (promise and statutory duties); Restatement Third of
Torts (Liability for Physical and Emotional Harm) § 42, cmt. d (2010).
89 Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449 (1998)
(“The City clearly had a duty to act reasonably in handling emergency
calls. By creating a 911 system, it accepted the obligation of attempting to
prevent the very kind of harm that occurred here.”); but see Washington
Cummins v. Lewis County, 156 Wash.2d 844, 133 P.3d 458 (2006)
(requiring both “dialog” and assurances of assistance by the 911 operator,
plus reliance by the caller or victim); Muthukumarana v. Montgomery
County, 370 Md. 447, 805 A.2d 372 (2002) (911 operator had no special
relationship with the victim unless the operator’s response exceeded “the
response generally made to other members of the public”). Some states
override tort liability by expressly providing statutory immunity to 911 or
other emergency services. See Regester v. County of Chester, 568 Pa. 410,
797 A.2d 898 (2002).
90 E.g., Wiseman v. Hallahan, 113 Nev. 1266, 945 P.2d 945 (1997);
(plaintiff who fell on ice on public walk at defendant’s building did not rely
on defendant’s custom of clearing ice and could not recover for the
defendant’s failure to clear ice that day); Zima v. North Colonie Central
School District, 225 A.D.2d 993, 639 N.Y.S.2d 558 (1996) (plaintiff who
saw ice could not have relied on defendant’s clearing or sanding it).
91 Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d
71 (Iowa 2002).
92 Heard v. City of New York, 82 N.Y.2d 66, 623 N.E.2d 541, 603
N.Y.S.2d 414 (1993).
93 Fried v. Archer, 139 Md. App. 229, 775 A.2d 430 (2001), aff’d on
other grounds, Muthukumarana v. Montgomery County, 370 Md. 447, 805
A.2d 372 (2002) (in the absence of a categorical relationship, “It is the
victim’s justifiable reliance on an expectation of assistance that creates the
“special relationship” between the victim and the defendant, and in turn,
justifies the imposition of a special duty to aid, protect, or rescue that
victim.”).
94 Florence v. Goldberg, 44 N.Y.2d 189, 196, 375 N.E.2d 763, 767,
404 N.Y.S.2d 583, 587 (1978).
95 New York has applied the reliance requirement stringently, at
least when when the claim is asserted against a public entity. See Kircher
v. City of Jamestown, 74 N.Y.2d 251, 544 N.Y.S.2d 995, 543 N.E.2d 443
(1989) (also requiring “direct contact” between the plaintiff and the
defendant).
96 See Beal v. City of Seattle, 134 Wash.2d 769, 954 P.2d 237 (1998).
97 Cf. Bourgonje v. Machev, 841 N.E.2d 96, 112, 298 Ill. Dec. 953,
969 (2005), where the court did not use the term comparative fault but
suggested that eventually the plaintiff would be barred.
98 See O.L. v. R.L., 62 S.W.3d 469 (Mo. App. 2001) (recognizing
caretaker’s duty to protect small child, parents’ reliance not discussed).
99 E.g., Bourgonje v. Machev, 841 N.E.2d 96, 112, 298 Ill. Dec. 953,
969 (2005) (landlord’s undertaking to provide buzzers was not an
undertaking to provide them as protection outside the building); Davis v.
Westwood Group, 420 Mass. 739, 652 N.E.2d 567 (1995) (racetrack’s
arrangement for officers to control traffic at the crossing from parking
facility was under an undertaking to provide safe crossing, but only to
perform the “the discrete task” of traffic direction); Trull v. Town of
Conway, 140 N.H. 579, 669 A.2d 807 (1995) (officer’s request that another
warn highway department of dangerous ice condition was not an
undertaking to get the message through).
100 Jefferson County School District R-1 v. Gilbert, 725 P.2d 774
(Colo. 1986).
101 Cf. Paulson v. Andicoechea, 926 P.2d 955 (Wyo. 1996) (the
defendant had customarily cleared snow but had not done so after the last
snowfall; defendant’s prior actions in clearing snow only reflected an
undertaking to clear snow on the days he actually cleared it).
102 See Cottam v. CVS Pharmacy, 436 Mass. 316, 764 N.E.2d 814
(2002) (pharmacist’s incomplete list of warnings about prescription drug;
patient could reasonably understand that the list was complete).
103 See Wakulich v. Mraz, 203 Ill.2d 223, 785 N.E.2d 843, 271 Ill.Dec.
649 (2003) (citing Restatement Second of Torts § 324 (1965)).
104 See LM v. United States, 344 F.3d 695 (7th Cir. 2003).
Harm) § 42 (2010).
106 Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982);
Dowis v. Continental Elevator Co., Inc., 241 Neb. 207, 486 N.W.2d 916
(1992); Landon v. Kroll Laboratory Specialists, Inc., 22 N.Y.3d 1, 977
N.Y.S.2d 676, 999 N.E.2d 1121 (2013).
107 Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (Exch.
Pl. 1842) (defendant’s promise to the owner of a coach to keep it in repair,
no duty to the plaintiff who was injured when the coach collapsed).
108 See H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159
N.E. 896 (1928).
Harm) § 43 (2010); Restatement Second of Torts § 324A (1965).
110 Stanley v. McCarver, 208 Ariz. 219, 92 P.3d 849 (2004) (doctor
contracting with A to examine B owed duty to B if B relied on report); Paz
v. State of California, 22 Cal.4th 550, 994 P.2d 975, 93 Cal. Rptr. 2d 703
(2000) (reviewing the three conditions); Gazo v. City of Stamford, 255
Conn. 245, 765 A.2d 505 (2001) (contractor undertook to clear snow from
sidewalk adjacent to A’s building, liability to B who fell on snow or ice
there); Louisville Gas & Elec. Co. v. Roberson, 212 S.W.3d 107 (Ky. 2006).
Harm) § 43, cmt. a (2010).
112 Id.
113 Rust International Corp. v. Greystone Power Corp., 133 F.3d 1378
(11th Cir. 1998) (Georgia law under Restatement Second § 324A); cf. Clay
Elec. Coop., Inc. v. Johnson, 873 So.2d 1182 (Fla. 2004) (contractual
obligation to maintain street lights, increased risk and negligence could be
found from failure to have regular inspections to discover non-working
lights).
114 Banaghan v. Bay State Elevator Co., 340 Mass. 73, 162 N.E.2d
807 (1959); Dowis v. Continental Elevator Co., Inc., 241 Neb. 207, 486
N.W.2d 916 (1992); Rosenberg v. Otis Elevator Co., 366 N.J.Super. 292,
841 A.2d 99 (2004); Bollin v. Elevator Const. & Repair Co., 361 Pa. 7, 63
A.2d 19, 6 A.L.R.2d 277 (1949).
115 See Belhumeur v. Zilm, 949 A.2d 162 (N.H. 2008); Thames
Shipyard and Repair Co. v. United States, 350 F.3d 247 (1st Cir. 2003);
Canipe v. National Loss Control Serv. Corp., 736 F.2d 1055 (5th Cir. 1984);
43, cmt. d (2010).
116 Stanley v. McCarver, 208 Ariz. 219, 92 P.3d 849 (2004) (plaintiff
should have opportunity to prove reliance upon doctor’s promise to third
person to examine the plaintiff and report).
117 See, e.g., Union Park Mem. Chapel v. Hutt, 670 So.2d 64 (Fla.
1996); see also Lindsey v. E & E Automotive & Tire Service, Inc., 241 P.3d
880 (Alaska 2010).
118 See Thames Shipyard and Repair Co. v. United States, 350 F.3d
247, 261 (1st Cir. 2003). See also Alder v. Bayer Corp., AGFA Div., 61 P.3d
1068 (Utah 2002) (duty created where defendant undertook to vent
dangerous fumes in hospital; hospital relied on that undertaking and
hence did nothing to protect its employees, who were injured).
Harm) § 43(b) (2010); Restatement Second of Torts § 324A(b) (1965).
120 Canipe v. National Loss Control Serv. Corp., 736 F.2d 1055 (5th
Cir. 1984); Palka v. Servicemaster Management Services Corp., 83 N.Y.2d
579, 589, 611 N.Y.S.2d 817, 822, 634 N.E.2d 189, 194 (1994). But see
Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485,
746 N.Y.S.2d 120 (2002) (a comprehensive assumption of another’s duty to
the plaintiff is required; a mere contract to plow snow, though it performed
one duty of the plaintiff’s employer to the plaintiff, was not enough);
Alexander v. Mitchell, 930 A.2d 1016 (Me. 2007) (defendant snow-plow
company owed no tort duty to the public arising from its snow-plowing
contract with the town); Rice v. Collins Commc’n, Inc., 2010 WY 109, 236
P.3d 1009 (Wyo. 2010) (communications companies that supplied
emergency communications system for a county did not owe a private
property owner a duty of care in operating and maintaining the system).
121 See Gazo v. City of Stamford, 255 Conn. 245, 765 A.2d 505 (2001)
(defendant contractually assumed duty of landowner to clear adjacent
sidewalk of ice and snow, tort duty thereby assumed to plaintiff using the
walk); Phinney v. Boston Elevated Ry. Co., 201 Mass. 286, 87 N.E. 490
(1909) (railroad contractually assumed city’s duty of care and was liable
for its failure to act in performance of that duty).
Harm) § 43, cmt. g (2010).
123 On the shifting-responsibility concept, see 1 Dobbs, Hayden &
124 See Palka v. Servicemaster Management Services Corp., 83
N.Y.2d 579, 589, 611 N.Y.S.2d 817, 822, 634 N.E.2d 189, 194 (1994)
(liability justified in part because of the “displacement and substitution of
a particular safety function designed to protect persons like this plaintiff”).
125 L.A.C. v. Ward Parkway Shopping Ctr. Co., 75 S.W.3d 247 (Mo.
2002) (security company contracting to help fulfill mall owner’s duty to
protect its invitees owed a contract duty to invitee who was allegedly
raped).
Harm) § 37, cmt. i (2010) (suggesting that special considerations involved
with public entity defendants might sometimes trump the rules of liability
based on undertakings).
127 Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365,
676 N.E.2d 821 (1997). Distinguish Gazo v. City of Stamford, 255 Conn.
245, 765 A.2d 505 (2000) (defendant contracted to take over all snow
clearing duties of plaintiff’s employer, defendant is subject to liability).
Harm) § 43, cmt. f (2010).
129 Bailey v. Edward Hines Lumber Co., 308 Ill. App. 3d 58, 719
N.E.2d 178, 241 Ill. Dec. 317 (1999) (“the duty of care imposed on a
defendant is limited to the extent of its undertaking”); Rein v. Benchmark
Construction Co., 865 So.2d 1134 (Miss. 2004) (undertaking associated
with a service contract terminated when service contract was terminated);
Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (“duty to exercise
reasonable care in performing a voluntarily assumed undertaking is
limited to that undertaking. When, as here, the facts about the scope of
the assumed duty are in dispute, the jury should be instructed to that
effect.”).
130 See § 25.6.
131 Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 792 P.2d 993, 13
A.L.R.5th 974 (1990).
633
Chapter 26
DUTY TO PROTECT FROM THIRD

Analysis
A. THE NO-DUTY RULE
§ 26.2 Actively Creating Risk of Injury by Third Person
B. DUTY BASED ON DEFENDANT’S RELATIONSHIP TO PLAINTIFF
§ 26.4 Landowner’s Duty to Protect Lawful Entrants
§ 26.5 Landowner’s Duty to Protect Tenants and Their Guests
§ 26.6 Custodian’s and School’s State-Law Duty to Protect Wards or
Students
C. DUTY BASED ON DEFENDANT’S RELATIONSHIP TO A
DANGEROUS PERSON
§ 26.11 Control and Other Means of Protecting from Dangerous Persons
__________
A. THE NO-DUTY RULE

In many cases, the defendant himself does not directly injure
the plaintiff but instead fails to prevent the risk of injury by
another person (or by the plaintiff herself). The immediate
tortfeasor is sometimes merely negligent but often he carries out a
criminal attack on the plaintiff. The question is whether the
defendant, who could have prevented the injury by a warning, or
by exercising the control he had over the attacker or over the
plaintiff herself,1 or otherwise, is under any duty to do so.2
In the usual case, the problem is not rescue of a plaintiff
already in peril; it is rather the use of care to prevent harm in the
first place. For example, when a newly released parolee with a
history of violence toward women does not appear at the halfway
house
634
to which he is required to report, the halfway house can

minimize the risk that the parolee will commit crimes by warning
the prison or the police that he has not appeared as required.
Although a phone call by the halfway house does not seem onerous,
given the halfway house’s effort to direct criminals into a better
path, courts have often conceived of this and a variety of other
situations narrowly as a question of the defendant’s control over
others rather than as a question of the defendant’s ability to protect
the plaintiff from foreseeable harm by actions that are neither
costly nor demanding. They have frequently said that, with certain
exceptions, the defendant owes no duty to control the dangerous
person and have taken that premise as grounds for refusing relief
to the parolee’s victims.3
In some instances, the defendant has done nothing, so the
nonfeasance rule would protect the defendant unless his
relationship establishes an affirmative duty to act.4 However, in
many of the cases, the defendant seems to be acting affirmatively
and in so doing creating a risk of harm to the plaintiff.5 Perhaps
that is true in the halfway house example, because it is possible to
think that the defendant is operating a halfway house and doing a
very bad job of it, not merely failing to use the telephone. Although
the no-duty-to-control rule logically seems to be an application of
the nonfeasance rule,6 some courts seem to apply the no-duty-to-
control rule independently, that is, whether or not the defendant
has affirmatively created a risk by his negligent actions. In those
courts, the rule can sometimes immunize affirmative risky acts.7
In four types of cases, the rule of non-liability for failure to
control third persons does not shield the defendant from liability
for negligence: (1) Where the defendant’s conduct is seen as having
actively created an unreasonable risk of injury from such third
persons.8 (2) Where a statute imposes a duty of care, as with
statutes requiring state agencies to investigate and deal with
reports of suspected child abuse.9 (3) Where defendant is in a
special relationship with the plaintiff that requires the defendant
to use reasonable care for the plaintiff’s safety.10 (4) Where the
defendant is in a special relationship with the dangerous third
person and is in a position to control his tortious behavior, or at
least to minimize risks to the plaintiff by some means.11
§ 26.2 Actively Creating Risk of Injury by Third
Person
The rule that no one owes a duty to control others is a
particular instance of the general rule that nonfeasance is not a
tort unless there is a duty to act.12 Consequently,
635
the no-duty-to-control rule has no logical application when the

defendant is affirmatively negligent in creating a risk of harm to
the plaintiff through the instrumentality of another or otherwise.13
Differing perceptions of active negligence. Sometimes courts, or
lawyers arguing the cases, have missed this point, with the result
that defendants have been relieved of liability even when they
acted affirmatively and negligently to create a risk of harm by
third persons.14 Sometimes, also, courts make broad statements
that, taken literally, would eliminate a duty to use care even in
cases of positive acts such as driving an automobile, or do not
perceive affirmative negligence of the defendant and consequently
treat the case as if the defendant did nothing.15 Although
perceptions may differ, it is possible to say that, in accord with the
logic of the nonfeasance rule, when courts do in fact perceive the
defendant’s conduct as actively creating an unreasonable risk of
injury by third persons, they usually recognize a duty of care and
liability based upon the active exposure to risks. The defendant in
these cases is not being required to control others or even to protect
them from attacks. On the contrary, he is being required only to
take no active steps in creating risks of danger from third persons.
In such cases, the no-duty-to-control rule should not protect the
defendant.16
Creating danger through misleading signals. One way to
actively create risks is to give or withhold information, that is, to
create the appearance of safety without correcting the deceptive
appearance. One simple kind of case of this sort involves the driver
who is in a position to see danger and who, by motions or
otherwise, indicates to the plaintiff that she can safely proceed,
thereby leading her into the path of an oncoming vehicle driven by
a third person.17 In some such cases the plaintiff may be
chargeable with contributory negligence or comparative fault,18
and in others the defendant’s signal may be interpreted to mean
only that the defendant waives his own right of way, not that he
has assessed the safety of the move he invites the plaintiff to
make.19 But even
636
if the defendant escapes liability on such grounds, it is not

because he owes no duty.20 And where the plaintiff can reasonably
rely upon the defendant’s affirmative signal, the defendant is
subject to liability for negligently creating a risk of harm by other
traffic.21 A misleading signal may be less direct or more
ambiguous. When one deer hunter fires in the direction of the
plaintiff, that may signal to his fellow hunters that firing in that
direction is safe. If so, the plaintiff who is shot by the second
hunter may conceivably have an action against the first on the
ground that his firing implied safety and thus triggered the injury-
causing shot.22
Vouching for qualities of third person. The defendant might also
actively create an appearance of safety by explicitly or implicitly
vouching for the qualifications of a dangerous person, thus leading
others to rely on the appearance of safety and to expose the victim
to injury.23 Presenting a person for treatment without warning of
his unusual and extremely violent tendencies looks like an
affirmative act that creates a risk, so that liability for the harm
done by the person under treatment is entirely appropriate.24
Actions facilitating injury by third person. There is no limit on
examples of liability for actively creating a risk of harm by third
persons. A street vendor may entice small children to cross the
street in traffic to obtain his wares, actively subjecting them to the
risk of being struck by negligent drivers. Liability does not depend
on “control” of the driver in such cases but on the active creation of
the risk.25 In civil rights cases, liability for affirmative misconduct
as distinct from nonfeasance is understood as “state-created
danger.”26 Similarly, the older rule that one who provided alcohol
to an intoxicated person who was expected to drive a vehicle had no
duty to third persons who might foreseeably be injured has now
been largely displaced by judicial and legislative action.27
Fatigued-worker cases. A smaller group of cases involve
employees who fall asleep at the wheel on the way home after
excessively long work periods. In some cases, these employees have
worked 30 hours or more without sleep. Predictably, fatigue leads
to a collision that injures or kills others. Some courts have held
that the employer who imposes debilitating workloads, and knows
the employee will drive home in an unfit condition, may have
breached a duty of care to those on the highway who are
foreseeably injured by the employee. Those cases require only
reasonable care; they do not forbid long hours or overtime. Liability
is imposed upon the employer because of the employer’s own
affirmative creation of a risk by overworking or by not offering rest
or alternative
637
transport to the fatigued employee.28 The plaintiff in these

cases is ordinarily not claiming vicarious liability29 or even a duty
to “control” the employee, as some contrary authority has perhaps
implied in rejecting such claims.30 The claim instead is that the
employer affirmatively created the unreasonable risk that came to
pass.
Motivating injury by third person. In another group of cases the
defendant’s act provides the motivation or incentive for a third
person to injure or kill a victim. For example, if a person takes out
a life insurance policy on the life of someone else and later murders
the insured, the insurer may be liable if it issued the policy without
doing a reasonable investigation.31 Because the insurer has
affirmatively created the risk by issuing the policy with inadequate
checks, the no-duty-to-control rule has no application.
B. DUTY BASED ON DEFENDANT’S
RELATIONSHIP TO PLAINTIFF
The defendant’s relationship to the plaintiff has been recognized
as a ground for requiring the defendant to take affirmative acts of
reasonable care in a substantial body of cases. Courts frequently
speak as if duties are generated only within a list of formal
relationships such as carrier-passenger, but as already indicated in
discussing rescue cases,32 the list is not closed.33 In any event,
since duty is a question of justice and policy, some less formal or
describable relationships may work in the same way. On the other
hand, the duty may not be coextensive with all the recognized
formal relationships.
Courts recognize several formal relationships between the
defendant and the plaintiff as grounds for imposing a duty of
reasonable care. Many courts have said that even where there is a
special relationship, the risk of harm must be reasonably
foreseeable in order to trigger a duty.34 Satisfying that duty may
require the defendant to give warnings to the plaintiff, to provide
shelter, to call for help, or to act otherwise as reasonable care may
dictate, to prevent harm by others, although the extent of the duty
owed is sometimes debated. In general, the categories of
relationships include: (1) A
638
landowner, usually a business enterprise open to the public,

and an invitee or other person properly on the premises. This
category includes the specific relationships between carrier and
passenger; innkeeper and guest; and to some extent, landlord and
tenant.35 (2) Custodian and ward, a category that includes jailers
and their prisoners, persons institutionalized with severe mental
or physical disabilities, and an indeterminate number of other
custodial or caretaker relationships.36 (3) Schools and students.37
(4) Spouses, and parents and children.38 (5) Employers and their
employees.39
§ 26.4 Landowner’s Duty to Protect Lawful
Entrants
Recognizing a Duty of Care
Earlier decisions recognized that carriers, innkeepers, theaters,
fairs and places of public entertainment owed affirmative duties of
reasonable care to protect their customers and sometimes to others
rightfully upon their premises. Those duties included the duty to
take reasonable steps to protect against acts of third persons40 and,
if reasonable, to provide aid when a customer or passenger is
attacked by others.41 The rule today is usually generalized to
include all private landowners who open their land to the public for
business42 and even to colleges with respect to their students.43
The rule requires such landowners to use reasonable care to
protect against both foreseeable negligence44 and foreseeable
criminal acts of third persons.45 If landowners create dangerous
conditions attracting crime, even landowners whose premises are
not open to the public may be under a duty of care.46
Earlier cases sometimes focused on specific events taking place
in the defendant’s presence. For example, a tavern that permitted
a man to drink all day long and into the night, causing “trouble”
from time to time, could be found to have been negligent in failing
to deal with the marathon drinker before he finally caused an
injury.47 There are still cases in this pattern.48 For instance, when
one customer hit another in a Taco Bell, then adjourned to the
parking lot for a serious beating, Taco Bell was liable because its
employees unreasonably failed to call for police.49 Some courts
continue to limit liability
639
to such cases of imminent harm, and to those in which the

defendant’s method of doing business attracts crime.50
Other contemporary decisions go a step beyond these cases by
imposing a duty of antecedent care, that is, to use care against
harms that are generally foreseeable even when the wrongdoer’s
presence is not known and the wrongdoer himself not specifically
identifiable. In particular, courts have imposed liability upon
landowners when crime against patrons is foreseeable and when
the landowner could reasonably have prevented shootings,51
robberies,52 beatings,53 rapes,54 or killings,55 in office buildings,
grocery stores, hospitals and other places of business, or in their
parking lots or perimeters.56 Even courts that limit the
landowner’s duties to protection from ongoing or imminent crime
may extend liability to all foreseeable crimes in the case of a
carrier or innkeeper.57
Foreseeability of Crime
Totality of circumstances approach. One major issue that has
drawn the courts’ attention has been whether the defendant’s duty
is triggered only when he knows or should know of similar
incidents of crime on his own property or nearby. On this point the
courts are split. One view is that ordinary negligence rules apply,
meaning that foreseeability is a question of fact and turns on the
evidence, not on a rule requiring specific crimes like the one that
resulted in harm to the plaintiff. Similarly, violent incidents in the
neighborhood might be enough to alert the defendant that crime
could spread to his own property.58 Indeed, a business might
foresee criminal attacks in a dark parking garage even if none had
ever occurred there before,59 and certainly might foresee attacks in
a blind spot in its parking lot adjacent to a place where people
loitered to drink and where 60 incidents of other kinds of crime had
been noted.60 Even a private homeowner needs no prior incidents
to foresee that if she permits a man subject to delusions to live in
her home and store weapons there, disaster is around the corner.61
640
Some courts are now calling this approach the “totality of

circumstances” approach. The label may suggest that it reflects a
special rule, but as the New Jersey Court said, it is only the
ordinary negligence rule, which determines foreseeability by
considering “all the factors a reasonably prudent person would
consider,”62 no more, no less.63
Specific similar incidents and other requirements. A more
conservative view insists that the landowner has no duty of
reasonable care to the customer unless similar incidents had
occurred. But even this similar-incident requirement does not limit
liability to those harms that are identical to those that have
previously been inflicted on the property or in the neighborhood.64
One court, in a case of an alleged rape at a shopping mall, observed
that “[f]oreseeability does not require identical crimes in identical
locations. Violent crimes against women, particularly, serve
sufficient notice to reasonable individuals that other violent
crimes, including sexual assault or rape of women, may occur.”65
Business attracting wrongdoers. Perhaps the most demanding
rule of all holds that the defendant is under no duty of care unless
his business is operated in a way that actually attracts
wrongdoers, or the defendant knows of a presently occurring
assault.66
Specific similar incidents required when risk is low or cost of
safety is high—“the balancing test and beyond.” In 1993, California
said that when the defendant’s supposed negligence lies in the
failure to take costly safety precautions such as posting security
guards, “a high degree of foreseeability is required” and that this
rule would ordinarily require evidence of “prior similar incidents of
violent crime on the landowner’s premises.”67 As noted in an
earlier chapter,68 locutions that refer to degrees of foreseeability
usually mean risk or probability, so the court’s statement appears
to mean that the foreseeable risk or probability of harm must be
high in order to impose a duty that requires an added heavy
expense such as a security guard. This is the balancing of
probability of harm against the burden of taking effective
precautions. And when the attack on the plaintiff is imminent or
actually taking place in the landowner’s presence, the landowner
may owe invitees a duty of reasonable care, because in that case no
deep analysis is required to foresee that injury may result.69 In
addition, the limitations on the special-relationship duty would not
necessarily apply to a duty based on the landowner’s undertaking;
that duty would depend on what the landowner undertook to do
and whether his action induced reliance or increased the risk of
harm.70
Some other courts have adopted a “balancing” approach to the
threshold issue of duty under which a more onerous burden would
be imposed as probability of harm increases, a balance in which
prior similar incidents play an important but not
641
necessarily a determinative part.71 Conversely, this view leaves
room to say that if the plaintiff claims only that low-cost protection
should have been afforded—that a warning should have been given
or that the parking lot should have been better lighted or covered
with a surveillance camera—prior similar incidents may not be
required.72
A requirement of prior similar incidents as a precondition to a
duty is an application of the usual risk-utility balance in the sense
that it weighs costs of safety against the probable harm. It differs
from the usual risk-utility balance in two related and important
ways. As a precondition to a duty, the balance is performed by
judges, not juries, and it is turned into something like a rule of law
for all cases rather than a guide to adjudication of particular cases
that may arise.
Foreseeable Actions Actuated by Unforeseeable Criminal
Intent
In most cases, liability of the landowner has turned on whether
the landowner could reasonably have foreseen criminal conduct of
the type that caused harm to the plaintiff.73 But in Wiener v.
Southcoast Childcare Centers, Inc.,74 the criminal actor triggered
events that were arguably foreseeable, even if the criminality itself
was not. One of the defendants operated a child-daycare center,
while the other was the landlord. The playground was on a busy
intersection virtually at road level and only four feet away from the
street. Its fence was allegedly inadequate to prevent motor vehicles
from crashing into the playground, and a motor vehicle did so,
killing two children.
The vehicle driven into the playground was a Cadillac operated
with murderous intent by a man named Abrams. The parties seem
to have taken it as a given that Abrams’ criminal behavior was so
unlikely that, standing alone, the defendant would not be negligent
in failing to protect against such a risk. But the risk of traffic
incursions by drivers who wish to murder small children arguably
did not stand alone. Instead, it could be viewed as a risk subsumed
in a much larger and more probable set of risks—those risks of
vehicular incursions into the playground resulting from mere
negligence of drivers or even from non-negligent accidents. If
vehicular incursions are foreseeable, the plaintiff argued, it would
not matter that the foreseeable incursion in the particular case was
actuated by criminal intent. The same kind of harm resulted, from
the same kind of forces that were foreseeable, and the precautions
to avoid the harm would be
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exactly those that were required anyway in response to the risk

of non-criminal incursions.
The court held that the daycare center operator and the
landlord were under no duty to the children in their care to protect
them from the criminal driver. First, it held that the probability of
harm must be especially high to warrant liability for criminal acts
and that such probability was not demonstrated on the facts.
Second, it held that even if the daycare center could foresee that
inadequate fencing would permit deadly vehicular incursions, the
defendant would still have no duty to erect a better fence. Instead,
the defendant would escape responsibility unless it could foresee
that the vehicle entering the playground would be driven by a
person with criminal intent.75 Third, the court appeared to say
that in any event even ordinary, non-criminal intrusions were
unforeseeable, so the operator would owe no duty to care to protect
the child even from accidental automobile injuries, much less a
duty to protect them from intentional ones.76
The second holding in Wiener addressed liability for foreseeable
harms resulting from improbable motives. As the court saw it, the
motive or criminal intent itself, not merely the forces launched by
that intent, had to be foreseeable before the defendant would owe a
duty. In so holding, court was in effect rejecting the view that a
duty of care arises when the defendant can foresee the same
general kind of harm that actually occurred and from the same
general kinds of forces that were actually in play.
Limiting Duty or Finding No Negligence
Even when risks are entirely foreseeable, the landowner or
business is not necessarily liable for crimes against invitees or
others, since the duty is only to exercise reasonable care, not to
guarantee safety.77 If the risk of assault upon customers is small
(and not generated by the business itself), good lighting alone may
satisfy the duty of reasonable care. In other cases, a reasonable
business might be expected to give a warning of danger, or to
eliminate hiding places from which an assault might be launched,
or even to provide security guards. But a manager’s informal patrol
of the parking lot every half-hour may readily satisfy the duty of
reasonable care in many situations.78 To a large extent, the issue
of whether the duty of care is breached is for the jury to decide if
reasonable people could differ.79
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Some cases, however, may be carved out for special treatment.

When an armed robber demands funds from a business,
noncompliance may endanger patrons, but even so, the Supreme
Court of California has said that the business has no duty to give
in to the robber’s demands, and if its resistance provokes the
robber to injure the plaintiff standing nearby, the plaintiff has no
complaint.80 Some other authority has taken a similar position on
similar facts.81 Such cases, however, do not reject the landowner’s
duty of care wholesale; they simply carve out exceptions.
§ 26.5 Landlord’s Duty to Protect Tenants and
Their Guests
Affirmatively creating risks. In one class of cases, the duty of
landlords and condominium associations to protect tenants and
their guests82 from thefts or from attacks by humans or animals,
turns on the fact that the landlord actually helped to create a
danger,83 for example, by leasing to dangerous tenants or failing to
restrict their dangerous activities.84 Perhaps the landlord who
stores combustibles in an area where many people are known to
toss cigarettes can likewise be seen as creating or cooperating in
the creation of unreasonable risk of fire that could harm tenants.85
Certainly a landlord who allows a dangerous employee to have
access to the apartment keys of a tenant has created a foreseeable
risk of violent attack on that tenant.86
Failing to maintain reasonably safe premises. In a second group
of cases, the landlord does not necessarily create the immediate
danger but he fails to protect the tenant from an attacker by
employing adequate door locks or otherwise. The traditional
starting point was that the landlord who did not create the danger
owed the tenant no duty to protect the tenant from the criminal
acts of third persons, but many courts have now imposed a duty of
reasonable care to maintain the physical condition of the premises
so as to minimize the risk of criminal attacks.87 While it might be
fair to say that the
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landlord always owes care that is reasonable in the light of all

the circumstances,88 what counts as reasonable care will ordinarily
depend in part upon the landlord’s express or implied
undertakings, his representations, and his powers under the lease
as well as upon foreseeability of harm.
Common areas. When a tenant has been attacked in common
areas of the premises such as entrance halls, the landlord’s control
of the area together with foreseeable harm may suffice to impose a
duty of reasonable care to provide appropriate doors, locks,89 and
lighting.90 When the tenant is attacked in her apartment,
landlords have been held liable for failure to use reasonable care
for the tenant’s safety for failing to repair locks or windows as
required by the lease91 or by statute,92 for misrepresenting safety93
or failing to disclose known dangers,94 for failing to provide
appropriate lighting of dangerous areas,95 or otherwise
maintaining conditions that would attract violent persons,96 and
for mishandling keys to the apartment.97
Landlord’s undertaking as basis for duty. The landlord’s
undertaking, express or implied, as a term of the lease or
otherwise, is often a basis for the duty to protect the tenant. A
leading case98 was a suit brought by a tenant in a large apartment
building after she was attacked by an intruder in the hallway.
When she had leased the apartment, the building had been
protected by a doorman and other devices. At the time of the attack
some years later, the doorman and other protections had been
withdrawn, although assaults, larcenies, and robberies in common
passages were common. The court held that, in light of the
landlord’s control over the common passageway, the special
character of the modern urban multiple-unit lease, and the notice
to the landlord of other attacks, the landlord owed her a duty of
care. The acts required of the landlord to fulfill his duty of care,
however, was dictated largely by contractual expectations—the
landlord was required to provide the degree of protection that he
himself had provided when the plaintiff first became a resident.
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Foreseeability of harm. Apart from the landlord’s voluntary

undertaking or assumption of a duty,99 the usual claim depends in
part on the foreseeability of harm,100 and if harm is not
foreseeable, no precaution is required.101 Evidence of prior
instances of crime in the general neighborhood is usually sufficient
to show that intrusion and assault is foreseeable.102 But even
without incidents of crime, it is reasonable to say that harm is
foreseeable when the condition of the landlord’s premises or the
landlord’s careless key management facilitate entry into the
tenant’s private apartment; thus liability has been imposed in such
cases.103
Commercial properties. The most common case for liability
involves the lease of premises for residential purposes, usually in
multi-unit properties, but liability has also been imposed upon
landlords of commercial premises. The office worker attacked in an
elevator104 or on a vacant floor,105 for example, stands in the shoes
of the commercial tenant and is entitled to an equal measure of
protection.
§ 26.6 Custodian’s and School’s State-Law Duty to
Protect Wards or Students
Anyone who has custody of another owes a duty of reasonable
care to protect that person from foreseeable harm.106 A custodian
may thus be held liable for failure to make reasonable efforts to
protect a ward from a third person’s attack or molestation, and
even to protect the ward from his own self-destructive inclinations.
Jailers and custodians of mentally or physically disabled.
Custodians include those who actually exercise control over their
charges or who have legal authority to control them. One clear
example is the jailer who holds prisoners in custody. By reason of
his custody, the jailer owes the prisoner a duty of reasonable
protection from attack107 and from suicide.108 The same point
applies to an officer who takes a person into custody.109
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What is true of jailers is equally true of those who have custody

of or caregiving responsibility for insane or incompetent persons.110
Hospitals and patients. Similarly, a hospital may be found to
owe a duty of reasonable care to protect a patient from third-party
attack and self-destructive acts. For example, a hospital may owe a
duty to supervise a non-employee social worker who engaged in an
improper sexual relationship with a patient.111 And a hospital may
be placed under a duty to take reasonable measures to protect a
patient who presents observable signs of domestic abuse from
further harm.112
Parents and children. Although the issue has seldom arisen,
where parents cannot claim the traditional parental immunity
they undoubtedly owe a duty of care to their unemancipated minor
children so long as they have custody.113 Other family members
may also take custody of a child and if they do, they assume the
protective obligations of custodians.114 For instance, they may be
obliged to protect a child from sexual abuse by others.115 And a
caretaker who does not have full-time custody but has undertaken
to provide care for a child owes a duty as a result of the voluntary
undertaking.116
Schools. Common lore has it that while children are in the
charge of a school, the school stands in loco parentis, that is, in the
role of parents.117 That would mean that the school, during periods
in which it has charge of students, would owe them the same
duties as their parents, presumably the duty of reasonable care.
Schools may be able to take advantage of parental or statutory
immunities.118 Absent an immunity, a school owes its students a
duty of reasonable supervision119 and other forms of reasonable
protection, sometimes likened to that which parents would
provide.120 For breach of such duties, schools may be held
responsible for a student’s own self-harm or suicide,121 although
many cases have denied such recovery.122 Schools may likewise be
responsible
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for a student’s injury from attack,123 harassment,124 or

molestation by outsiders,125 other students,126 and, in some cases,
by teachers or other school staff.127 Injury generated outside the
school property, outside of curricular or extra-curricular activities,
and from sources unconnected to the school,128 is not likely to be
the school’s responsibility.129
As in most other negligence cases, liability is imposed only if the
defendant’s negligent conduct caused the harm complained of.130
And of course the duty imposed under these rules is only a duty of
reasonable care, so liability does not follow unless the school
breached its duty. If the harm was not reasonably foreseeable, or if
the school took reasonable precautions in the light of foreseeable
harm, it simply is not negligent and liability cannot be imposed.131
But harm from third persons may be foreseeable in some situations
even if it has not occurred before and if so, reasonable protection is
required.132
Sexual harassment or abuse in schools. Sexual harassment in
schools presents complex legal problems which the common law of
tort deals with only in part.133 If a student is sexually molested by
a member of the school staff, she presumably has an ordinary
battery claim against her molester. Because a teacher’s sexual
conduct toward students is often regarded as outside the scope of
his employment,134 liability often must be based upon the school’s
negligence in hiring or retaining a dangerous person135 or in
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failing to report or otherwise deal with cases of known or

suspected abuse of this kind. Given the purpose of the teacher’s
vocation and the school’s relationship to its students, it is
appropriate to impose upon the school a duty of care that includes
protection from sexual exploitation and abuse. Reasonable care
might, for example, include reasonable supervision of students and
teachers; it might also require a report to authorities who can
control the abuser’s conduct or dismiss him.136 The duty is only one
of reasonable care. If the school has no notice that a teacher is a
risk for sexual or other abusive misconduct, the school simply is
not negligent and is not liable.137
Colleges. Colleges may act in a number of different roles. Either
as colleges having a relationship to students, or as landlords of
student housing, they may be under a duty to protect their tenants
from attack by supplying appropriate door locks or otherwise.138 A
student might also be considered as an invitee and entitled to an
invitee’s protections.139 Colleges might, again like others,
undertake duties of care by promises or representations.140
Likewise, a college may be under a duty of care to avoid assigning
students to unreasonably dangerous sites for off-campus
internships or the like.141 In each case, the duty is only one of
reasonable care, and liability will follow only where all elements of
the prima facie case are proved.142
Because college students are regarded as independent adults,
many courts have refused to impose upon colleges any duty to
protect them from the pressures of college life.143 When the college
knows that one of its students poses a serious danger to others,
some authority requires the college to exercise reasonable care to
protect students who may be victimized.144 But some courts have
been unwilling to require colleges to exercise
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reasonable care to protect one college student from another,145

even when the college knows it has admitted a dangerous
student.146
Formal custody has been of controlling importance in the
analysis of federal civil rights duties to protect from third
persons.147 The Supreme Court has recognized that the custodial
relationship imposes affirmative duties upon a custodian, both in
the case of a prisoner148 and an involuntarily committed mental
patient.149 In the DeShaney case,150 the county department of
social services took temporary custody of a small child, Joshua,
because of evidence that he was being abused by his father. The
department returned the child to his father under an agreement
with the father that established the department’s right to monitor
Joshua’s safety. The department in fact regularly sent a
caseworker, but in spite of mounting evidence that he was being
savagely beaten, the caseworker did nothing to regain control.
Joshua’s father’s beatings finally produced profound brain damage
and left Joshua confined for life in an institution for the profoundly
retarded. The Court held, however, that the department did not
have custody of Joshua even though it had the practical power to
obtain custody and had taken a number of inadequate steps to
protect him. For the Court, “custody” meant depriving the plaintiff
of liberty so that he could no longer protect himself or obtain aid
from others. Because Joshua was not in custody in this strict sense,
no civil rights action would lie.151 Although as a matter of ordinary
tort law, defendants are often under a duty of care because they
voluntarily assumed such a duty by acts or promises, DeShaney
might be read to mean that such undertakings have no
constitutional significance unless state action makes the plaintiff
worse off than no state action.152
Children in foster homes. The strict custody requirement of the
DeShaney case does not foreclose a constitutionally based duty of
care when the public entity actually takes guardianship of a child
and then fails to exercise appropriate custodial supervision, with
the result that the child is injured or killed.153 For instance, the
state officers who take charge of a child and then knowingly or
indifferently154 place her in a dangerous foster
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home environment are subject to liability for depriving the child

of due process rights by causing her harm.155 As Judge Posner put
it, “If the fire department rescues you from a fire that would have
killed you, this does not give the department a constitutional
license to kill you, on the ground that you will be no worse off than
if there were no fire department.”156 In addition, the state, having
placed a child in a foster home, may be expected to verify that the
home continues to be safe for children and may even be held to a
standard of professional judgment.157
Compulsory schooling and custody. The general view is that
compulsory school attendance is not custody, and that short of
“custody” the Constitution does not require any school to protect
one student from another,158 from himself,159 or from intruders.160
In fact, unless the school maintains a policy or custom supporting
abusive teachers, or the school is responsible under Title IX, it may
escape responsibility under federal law for its teachers’ sexual
abuse of minor students.161
Employers owe a general duty of reasonable care to their
employees, as well as to independent contractors and their
employees. This principle is usually expressed by saying the
employer owes a duty of reasonable care to furnish a safe place in
which to work.162 More specifically, the employer may be under a
duty to use reasonable care to protect the employee from attacks by
third persons. The duty may arise from the employment
relationship alone or from the employer’s implied undertaking to
provide appropriate protection.163 For instance, the duty of care
may require the employer to provide a reasonably safe workplace
by providing appropriate lighting and windows so that a night
employee in an isolated place can see to protect herself from attack,
and the employer who does not do so may properly be found
negligent.164 In some cases the duty might be satisfied by a
warning that reveals the danger.165 Besides providing reasonable
protection against third persons, employers whose medical
examination of employees
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and prospective employees reveals a serious medical condition

may be under a duty of care to reveal the condition to the employee
or prospective employee.166
C. DUTY BASED ON DEFENDANT’S
RELATIONSHIP TO A DANGEROUS PERSON
General rule. A distinct ground for imposing a duty to protect
from a third person is that the defendant stands in a special
relationship to a dangerous person and is in a position to control
that person or limit his capacity for harm. The usual starting point
is that the defendant is under no duty to take affirmative steps to
control a dangerous person in the absence of an undertaking to do
so, or a special relationship, either with the plaintiff or with the
dangerous person. For instance, a passenger in an automobile,
perceiving that the driver is dangerously intoxicated, owes no duty
to anyone other than himself167 to persuade the driver to stop or
relinquish the driving task to others.168 Frequently, however,
actual custodial control of a dangerous person is not really the
point.169 Rather, the relationship of the defendant to the dangerous
person may be enough to require the defendant to use reasonable
means at his disposal to protect the plaintiff or reduce the risk to
her, even if control is impossible. Thus the usual statement of the
rule in terms of “control” tends to obscure the possibility that a
reasonable defendant might save the plaintiff by the most limited
efforts, such as a warning.
Recognized relationships to dangerous person. However that
may be, several relationships establish a right, authority, and duty
to control dangerous persons, which in turn requires the defendant
to exercise reasonable care. In particular, the Restatement Second
recognizes that the defendant is expected to exercise care to control
(1) his minor children,170 and those in his custody or immediate
control,171 (2) employees
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who are using his premises or chattels,172 (3) dangerous persons

in his custody173 or subject to his authority,174 and (4) those who
are subject to his power because they are licensees on his land or
using his chattels.175 The Third Restatement recognizes similar
categories, and also acknowledges the duty of mental health
professionals to use reasonable care in protecting others from their
dangerous patients.176
Parents: specific dangers. Courts have been reluctant to impose
liability upon parents for the torts of their children, even when
parents know that their child is dangerous and could take steps to
prevent harm.177 In these cases, courts have rejected liability when
the parents could foresee that their child would cause harm, but
could not reasonably foresee the specific harm or the specific
occasion for harm inflicted by the child.178 In some such instances,
the parents may have made reasonable decisions, since teenaged
children need experience with freedom as well as control and since
courts should interfere with child-rearing decisions only in clear
cases. Given parental knowledge of a specific propensity and an
imminent danger or occasion for it, however, the parents are liable
for negligence in failing to control the child or failing to warn
potential victims.179 But again, negligence is required and courts
have recognized that older children, though more dangerous, may
also be more difficult to control, and hence have displayed a strong
disinclination to impose liability in those cases.180 When the
dangerous child is an adult, the parent is not likely to be held
responsible for his foreseeable misconduct absent some unusual
element of control, and financial support of such a child is probably
insufficient to justify liability of the parent.181 A parent who
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negligently leaves firearms available to a child or negligently

entrusts the child with weapons presents a different issue.182
Where defendant’s care owed to one person will protect others. In
one distinct group of cases, the defendant owes a duty of
reasonable care to one person, who becomes dangerous to others
only because the defendant has not fulfilled his duty of care. Put
differently, the defendant’s compliance with his duty of care to A
will also tend to protect B and others at no added cost. For
example, a landowner owes invitees a duty of reasonable care; if he
breaches that duty by exposing them to disease, the breach of duty
to the invitee may cause foreseeable communication of that disease
to others outside the land.183 Similarly, a physician who gives a
patient medication likely to produce dizziness owes the patient a
duty of reasonable care, probably satisfied by a warning not to
drive.184 If he fails to warn, there is a good chance that the patient
himself may be injured in driving and may injure third persons as
well. In these cases, imposing a duty upon the defendant to those
third persons imposes no new burden. If he is held liable it is only
because he breached a duty already owed and because his
reasonable care would have protected others as well. The ground
for liability seem to be near the core of tort law and a number of
courts have recognized that breach of a duty of care that risks
injuries to others is ground for liability.
Control of licensees and negligent entrustment. The defendant’s
ownership or right to control land and chattels imposes upon him a
duty to use reasonable care to control permissive users to prevent
them from negligently or intentionally inflicting harm.185 This
obligation is closely related to the owner’s responsibility for
negligent entrustment of chattels to people who foreseeably might
use the chattel in a way dangerous to themselves186 or others.187
The typical case is negligent entrustment of an automobile188 or a
weapon189 to a person whom the defendant knows or should know
is apt to use it in
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a dangerous way because of his age and inexperience,190

physical or mental limitations,191 his character or habits,192 or his
actual intoxication193 or perhaps his propensity for it.194 Some
courts have found negligent entrustment, not because the
entrustee was dangerous, but because the instrumentality, such as
a paint gun195 or an air rifle,196 was. The duty of care of course
extends to other goods as well, if the defendant should know that
entrustment runs an unreasonable risk of harm.197 One court has
even held that selling or facilitating access to gasoline for use by a
driver known to be intoxicated can count as a negligent
entrustment so that the negligent seller may be held for harms
inflicted by the buyer’s drunken driving,198 although others have
rejected this and similar claims.199
Negligence rules applicable. Once the duty of care is imposed,
the negligent-entrustment case is an ordinary negligence case to
which all the principles of negligence law apply.200 The lender who
is not negligent when he entrusts an automobile may come under a
duty to terminate the entrustment if he later learns that the
borrower is using it dangerously; the defendant may even be
responsible to the borrower herself where he owes her a duty to
protect her from her own incompetence.201 If no harm is reasonably
foreseeable as a result of the entrustment, or if the likelihood of
harm is so small that the entrustment is nevertheless reasonable,
the defendant is not negligent at all.202 Conversely, if harm is
foreseeable, liability is appropriate not only when the defendant
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intentionally “entrusts” the chattel to a dangerous person, but

also when he negligently leaves the chattel at a place where he
should expect that a dangerous person is likely to find and use it. A
well-known kind of case is one in which a person negligently leaves
keys in a vehicle, which is then stolen by a thief who injures the
plaintiff with the vehicle. Courts have imposed liability on such
facts where the vehicle itself is particularly dangerous.203
Similarly, liability may follow if a defendant leaves a gun
unprotected from children or thieves.204
Control of chattel required. The duty of reasonable care is not
imposed on negligent-entrustment grounds unless the defendant
has the right to control the chattel.205 A bailee is not required to
withhold the automobile from its owner206 and a police officer is
not required to arrest the intoxicated owner so he can take control
of the car.207 Although some authority holds that the defendant
must not even sell or donate a car to a known dangerous driver,208
others say that the defendant who knows the purchaser or donee is
dangerous has no responsibility to restrict sales of automobiles.209
Similarly, the seller of a motorcycle may have no liability for
negligent entrustment, even where the buyer was unlicensed,
because the seller gave up “control” upon completion of the sale.210
Firearms. When it comes to firearms, however, sellers may be
required to deliver them only to properly identified buyers who do
not appear to be especially dangerous.211 Because stolen guns are
often used in criminal activities leading to serious harm, it would
seem that a dealer should exercise care to prevent theft of his
handguns, but some courts have disagreed.212 Some courts have
similarly held that a gun owner is under no duty to keep firearms
in reasonably safe places to prevent theft and killings,213 or that
theft and illegal use by the thief are not foreseeable.214 Perhaps
some courts do not view the business of selling guns or storing
them as affirmative conduct, so that failure to take reasonable
steps to guard against theft is assumed to be mere nonfeasance. If
a court perceives active conduct, however, the ordinary duty of
reasonable care would
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apply,215 although liability of gun manufacturers and federally

licensed sellers may be cut off in some cases by a federal statute.216
§ 26.11 Control and Other Means of Protecting
from Dangerous Persons
Control can be sufficient for duty. One in charge of a person who
is or should be recognized as dangerous is under a duty of
reasonable care to control that person so as to prevent harm.217
For example, a prison is under a duty of reasonable care not to
permit its inmates to escape and do harm;218 and, if not
immune,219 custodians who release dangerous persons have
sometimes been held liable for the death or injury they foreseeably
cause.220 Parole officers may have a sufficient relationship if not
“control” over dangerous criminals on parole to require them to
exercise care in supervision.221 Similarly, police may have
sufficient control over a dangerous person because they are under a
duty to enforce an injunction against an abusive husband or father
by arrest if necessary to protect the family.222
Neither control nor custody are necessary for duty. Cases have
not required anything like “custody” of the dangerous person to
trigger the duty of reasonable care to protect the plaintiff.
Consequently, it would be more accurate as well as less
confounding to recognize that “control” is merely one of the ways in
which a defendant might act reasonably to minimize the risk of
harm to others.
Examples. The Pied Piper cases supply one example of a
defendant who owes a duty of care without having “control.” A
mobile street vendor selling ice cream by attracting children into
the street has no control over dangerous traffic, but the vendor
must use reasonable care to protect the small children attracted by
his music and his wares and may be liable if a child is struck by a
car.223 Other examples abound. Airlines may owe a duty to screen
passengers to exclude terrorists for the safety not only of other
passengers but also for the safety of potential victims on the
ground.224 Again without formal custody, or even immediate
control, a landlord with a dangerous tenant225 and a hospital
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with a dangerous surgeon226 may be required to exercise care to

prevent harm to others if for no other reason than because they are
in a position to “terminate the tenancy” or other privileges. Along
the same lines, a wife who knows her husband molests children
certainly does not have her husband in custody and probably does
not control him, but she is under a duty of reasonable care to
neighboring children.227 Such a duty might be satisfied by warning
the neighbors, but much less disruptive solutions may be
reasonably available; for example, she might arrange to be present
when neighbor children visit.228
Negligent hiring, retention or supervision of an employee.
Employers must exercise reasonable care to “control” their
employees,229 which often translates to a duty to use care in
hiring,230 supervising,231 or retaining232 a dangerous person whose
job puts him in a position to harm others,233 even if in harming
others he is not acting within scope of employment.234 Where the
public duty doctrine or other immunities do not protect negligent
public employers, they too are subject to a duty of care in hiring,
supervising
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and retaining.235 A duty to supervise may even extend to one

organization’s relationship to another, as where a national
fraternal organization failed to supervise the activities of a local
chapter and its members, who negligently served alcohol to a
minor, leading to the minor’s death in an automobile accident.236 A
school district may be vicariously liable for a school administrator’s
negligent supervision of a school employee who sexually abused a
high school student.237
Reasonable-care limits. Some but not all cases in which the
defendant is asked to protect the plaintiff from dangerous persons
raise policy conflicts, and sometimes courts simply refuse to impose
a duty.238 A duty of reasonable care by definition cannot be an
undue burden, but it may still be difficult for a hospital to
supervise a physician or a wife to chaperone her husband without
risking damage to the relationship. Given a duty of care in such
cases, liability by no means follows. It might be, for example, that
the duty of reasonable care is readily satisfied by a hospital’s
annual review of a physician’s performance. In the same way, a
high school may have sufficient control over its students to prevent
them from leaving campus during lunch break, but the only duty is
the duty of reasonable care to avoid unreasonable risks, not to
exercise all the control possible. No special facts appearing, the
school creates no unreasonable risks of harm to others in failing to
restrict students to campus, even if some students will drive cars
with their customary flair and disregard for safety.239
The therapist’s dangerous patient. The policy conflict in
imposing a duty was the strongest argument in one of the famous
cases, Tarasoff v. Regents of the University of California.240 In that
case, a psychologist concluded that his patient, Poddar, intended to
kill Tatiana Tarasoff. He was concerned enough to tell the police,
but the police released Poddar after a brief detention. The
psychologist and his superiors did not attempt to commit Poddar or
even to warn the Tarasoff family. Poddar did in fact kill Tatiana
Tarasoff. In a suit against the psychologist for Tatiana’s wrongful
death, the defendants argued that it was against public policy to
impose a duty of care upon therapists because it would force them
to breach their confidence and would undermine the essential trust
between therapist and patient. The court, however, imposed a duty
of reasonable care, at least when a specific, known person was
endangered. The therapist is thus required to act only when his
own professional judgment indicates that others are in danger.241
Many states have adopted the Tarasoff duty of reasonable care.242
The same rule may apply as well to school counselors and others
less well-trained, but in that case, they are expected only to make a
diagnosis that meets their own professional standards.243 Many
courts limit the duty to warn to cases in which specific victims are
659
identified; risks to the general public are not, in their view,

sufficient to trigger a duty.244 Some states have rejected Tarasoff
on the ground that a psychologist owes no duty to a person other
than his patient, absent some particular facts (beyond those
presented in Tarasoff) creating a special relationship between the
doctor and the victim.245
Tarasoff statutes. Many states, including California itself,246
have enacted statutes imposing a Tarasoff duty or something very
similar.247 A number of statutes specify that there is no duty to
warn except where the patient has communicated an actual threat
of physical violence against a reasonably identifiable victim.248
Some statutes have been interpreted to impose substantial
restrictions on recovery, in some cases even eliminating the
therapist’s duty of care under the professional standard and
limiting liability to cases in which the therapist personally believed
a patient’s serious threat of harm,249 or immunizing a care facility
when the threat is acted out rather than verbal.250 Other statutes
have been construed narrowly, to abrogate a common-law duty of
reasonable care only if the precise conditions set forth in the
statute are present in the case.251 Still others, which require
mental health centers to report mental patients’ material
noncompliance with outpatient orders, have been held to create a
duty only to the general public and not to any particular individual
later harmed by the patient.252
Duty to diagnose. In Tarasoff itself, the psychologist made a
correct diagnosis of the patient and knew of the danger. Some
cases impose a duty of care to third persons to make a non-
negligent diagnosis in the first place.253 Other authority takes the
view that the duty to diagnose with reasonable care runs only to
the patient, so that if the physician never recognizes the danger at
all, he is not then responsible for the patient’s violence to others.254
Some states have rejected any duty at all, even a duty to warn of
known danger.255
660
The contagious or incapacitated patient.256 Similarly, to protect

persons who are not patients,257 some courts have imposed a duty
upon medical doctors to warn their own patients,258 and non-
patients as well,259 that the patient’s diseases are contagious or
infectious, or to warn them that prescribed drugs may make
driving unsafe for others on the road.260 So long as the warning is
made directly to the patient herself, and for the patient’s benefit as
well as for the public’s benefit, neither the confidentiality nor the
privacy issue is implicated. Nor is there any possible conflict of
interest on the part of the physician or intrusion in the doctor
patient relationship where the only duty is to warn the patient,
who can then take appropriate steps to protect both himself and
members of the public.261 There is not even any burden or cost to
the physician beyond the burden he undertook to treat the patient
with reasonable care. Yet some courts have refused to recognize a
doctor’s duty to warn the patient herself that she carries an
infectious disease or that she is not a safe driver.262
Warnings to non-patients. When the plaintiff claims that a
warning should have been given to a non-patient, however,
stronger reasons appear for denying the duty. In some cases, it will
be impossible to know who besides the plaintiff should receive a
warning. Even when the doctor could identify the person most at
risk from the patient’s disease, issues of confidentiality and privacy
like those raised in Tarasoff will be important. But Tarasoff’s
answer—requiring a reasonable warning to endangered non-
patients—is not necessarily controlling when the patient himself
has expressed no intent to harm others. A warning to the patient
that she has an infectious disease, or that she cannot safely drive,
would ordinarily reduce the risk to harm to non-patients to
tolerable proportions. So cases that deny the duty to warn non-
patients263—or that deny that the duty was breached—often
represent intelligible policy decisions. On the other hand,
661
courts sometimes seem inclined to eliminate the doctor’s duty of

care even when the policy concerns are not present.264
Traditional common law rule. Alcohol-impaired driving is a
major factor in serious and fatal automobile injuries.265 The
traditional common law rule, however, was that those who
provided alcohol to minors and intoxicated persons had no
responsibility whatever for injuries inflicted by those drinkers, for
example, injuries inflicted by the intoxicated person who drives
negligently after consuming the defendant’s alcohol. The rule was
usually explained on the ground that the consumption of alcohol,
not its provision, was “the” proximate cause of the subsequent
injury and that injury was “too remote.”266 Since the drinker’s
intoxication and subsequent negligent acts would be entirely
foreseeable, and the risk created by the defendant—intoxicated
driving—is exactly the risk that comes about, proximate cause
reasoning seems inappropriate at best. For this reason, and
because courts made a flat rule of law that did not depend upon
circumstances of individual cases, the common-law rule looked like
a no-duty rule rather than a proximate cause rule tailored to
particular facts. A proximate cause rule, might have inquired, for
example, into the foreseeability that the drinker would drive, the
time of day and traffic conditions, the time between drinking and
the injury, and other such factors. But none of this was relevant;
the traditional rule covered all cases in the general model of facts
without regard to circumstances.
Effect of regulatory statutes. Three kinds of statutes potentially
affected liability of the alcohol provider. First, regulatory statutes
usually criminalize the sale of alcohol to intoxicated persons,
minors, or habitual drunkards. Regulatory statutes also put the
provider’s license in jeopardy when he makes such sales. The usual
rule that violation of a statute is negligence per se or prima facie
negligence, however, was not applied to these statutes, so their
violation had no effect at all in the tort suit.267 That left the victim
of an intoxicated driver without rights against the provider who
knowingly supplied alcohol to a minor or intoxicated person.
Dram shop or civil damage acts. The second kind of statute was
known as a Dram Shop or Civil Damage Act. These statutes,
originally enacted in only a small number of states, did not merely
regulate the sale of alcohol. Instead, they provided expressly for
civil liability of alcohol providers. Dram shop statutes sometimes
imposed strict liability upon the provider (and sometimes upon the
lessor of the premises where alcohol was sold as well). On the other
hand, liability in such cases might be limited to a rather small
662
sum.268 Contemporary statutes imposing liability may also

impose specific limits and may provide the exclusive remedy,
barring any common law claim.269
Reversing the common law rule. Dram Shop statutes aside, the
courts began reversing themselves about 1960.270 Legislatures
then sometimes took over the issue with a third type of statute,
recognizing liability for negligence in some cases but not others.271
Most courts not constrained by statute now impose a common law
duty of reasonable care and impose liability when the licensed
seller of alcohol negligently sells to a minor or intoxicated person
who, as a result, causes injury to the plaintiff.272 If the harm is
foreseeable, liability is not to be avoided merely because the
provider furnished alcohol to a minor indirectly, for instance, by
negligently selling to one who is a foreseeable conduit of alcohol to
minors,273 or negligently permitting a theft by minors.274 The
provider’s ultimate share of liability to injured third persons may
be reduced by the drinker’s comparative fault share,275 or, in joint
and several liability jurisdictions, by contribution or indemnity
from the drinker.
Negligence. The regime is not one of strict liability; the plaintiff
must prove negligence. This ordinarily takes the form of evidence
that, in violation of liquor regulations, the defendant negligently
provided alcohol to a person whom the seller should have
recognized as being a minor or intoxicated.276 For example, the
bartender who serves many drinks to a patron and observes his
drunken behavior and incoherent speech has reason to think he is
intoxicated. Subsequent blood-alcohol tests may support an
inference not only that the patron was intoxicated but that the
signs of drunkenness must have been visible to the alcohol
provider.277
Scope of liability or proximate cause. Ordinarily, the plaintiff
must also prove scope of liability (proximate cause) as in other
negligence cases. The negligent provider who supplies alcohol to
teenagers or intoxicated persons enhances the risk that the drinker
663
will drive dangerously,278 that the drinker was therefore injure

himself or others, and even that close relatives will suffer
emotional harm upon seeing injury to the primary victim.279 Since
all these things are foreseeable and within the risk created by the
alcohol provider, scope of liability (proximate cause) is established
in such cases. But the alcohol provider does not necessarily create
a risk that the drinker will set a house afire280 or commit rape and
murder,281 or jump off a bridge into a river in an attempt to avoid a
DWI arrest,282 and if not, the provision of alcohol is not within the
scope of defendant’s liability—in other words, not a proximate
cause of such harms. But the scope of liability issue, as in other
negligence cases, is for the jury where reasonable people could
differ. And Dram Shop statutes may be construed to permit
liability if factual cause and direct injury from intoxication are
proven.283
Duty to, and responsibility of, the intoxicated person. With the
reversal of the traditional rule, new issues have arisen. The
provider’s liability to the intoxicated person does not, of course,
displace the intoxicated person’s own liability to the injured victim.
Even so, some courts have held that the alcohol provider is liable to
the drinker when the drinker injures himself instead of others.284
Other courts have rejected any such liability.285 The same division
of opinion prevails under Dram Shop or Civil Damage Acts, where
some statutes are interpreted to exclude liability to the drinker
himself.286 Some authority has distinguished between adults and
minors, holding that the alcohol provider owes a duty of care to the
minor drinker but not to the intoxicated adult.287
Duty of social hosts. Social hosts, like anyone else, may
undertake a duty of reasonable care to assist or protect guest-
drinkers; and if they do so may be held liable for breach of that
duty.288 Social hosts may likewise be in a special relationship to
guests, a relationship that calls for reasonable care with respect to
dangerous intoxication.289
664
The control that goes with land ownership may also subject the
landowner-social host to potential liability for intoxication injuries
on principles akin to those that support negligent entrustment.290
And beyond these special situations, a few cases impose liability on
a social host or companion who negligently supplies alcohol to an
intoxicated person likely to drive and hence likely to cause injury
to others.291 On the whole, however, courts and legislatures have
been reluctant to impose a duty on social hosts based solely on
their provision of alcohol to guests.292 A wide range of disgusting
behavior may be brought under the protective mantle of this social-
host rule.293
A number of factual configurations are involved in the cases,
some more likely than others to result in a duty of care. First, the
intoxicated person may be either an adult or an underage drinker.
Social hosts or companions are generally under no duty to protect
adult drinkers294 or their victims295 from harms resulting from the
host’s provision of alcohol. But courts and legislatures have
sometimes imposed a duty of care on social hosts or companions to
avoid furnishing alcohol to minors, with the result that such a host
may be held liable for injury due to a minor guest’s intoxication if
the host should have known he was providing alcohol to a minor.296
Some kind of statutory platform is often the point of departure in
this cases of liability to a minor guest-drinker. Statutes
665
may directly (or indirectly) provide for liability of hosts who

furnish alcohol to minors.297 Still, in the absence of a compelling
statutory platform, many courts immunize the host even in the
case of minors or underage drinkers.298
Second, there may be significant differences between cases of
injury to a guest and injury to a third person caused by an
intoxicated guest. For example, an intoxicated guest may
negligently cause a post-party auto accident that kills a stranger.
The latter case opens a potential field of liability not so clearly
associated with the host’s premises, so the same court that rejects
liability to third persons may accept host-liability to the minor
guest himself.299 On the other hand, the injured stranger is not a
participant in the intoxication, only a victim, and for that reason
might seem especially worthy of protection from the host’s
negligence.300
Legislative reaction. In a number of states, legislatures have
amended, modified, or limited the old regulatory statutes.301 The
modified regulatory statutes are now often called Dram Shop
statutes, too. Where a true Dram Shop statute has been enacted,
the statute is sometimes read to exclude the development of
common law liability,302 though a number of courts hold that it is
not the exclusive remedy and hence now also permit an ordinary
common law negligence action.303 Most legislation passed in
response to the decisions is restrictive. In particular, a number of
statutes limit or abolish liability of social hosts,304 or abolish their
liability to the adult drinker himself.305 Some impose evidentiary
restrictions, limiting liability to cases in which the adult drinker
was visibly intoxicated, for example.306 Others go beyond that,
limiting liability to specific situations
666
or to a comparative fault share.307 The California statute

abolishes all liability of alcohol providers except those who furnish
alcohol to an obviously intoxicated minor.308
________________________________
1 See Madison ex rel. Bryant v. Babcock Center, Inc., 371 S.C. 123,
638 S.E.2d 650 (2006) (caregiver owes duty to patient with mental
disability to control her to protect her from harming herself). For cases
involving allegations that a defendant negligently failed to prevent
another person’s suicide, see §§ 15.18 (superseding cause) & 26.6 (duty).
2 Many cases have tried to resolve the matter on scope of liability
(proximate cause) grounds, which is problematic. See 2 Dobbs, Hayden &
3 See Johnson v. State, 553 N.W.2d 40 (Minn. 1996). Several courts,
however, have held that a parole officer, by virtue of his supervisory
relationship with the parolee, is under a duty of reasonable care to victims
in a foreseeable class. State, Dep’t of Corrections v. Cowles, 151 P.3d 353
(Alaska 2006).
4 E.g., England v. Brianas, 166 N.H. 369, 97 A.3d 255 (2014)
(defendant owed no duty to warn boyfriend of stalking by former
boyfriend, who broke into defendant’s home and stabbed plaintiff).
5 See § 26.2. This is clearly the situation in negligent entrustment
cases, see § 26.10.
Emotional Harm) § 19 & cmt. e (2010); § 25.2.
7 See §§ 26.2 (perceptions of active negligence vs. nonfeasance) &
26.12 (alcohol providers).
8 See § 26.2.
9 See District of Columbia v. Harris, 770 A.2d 82 (D.C. 2001); Rees
v. State, Dep’t of Health & Welfare, 143 Idaho 10, 137 P.3d 397 (2006);
Jensen v. Anderson County Dep’t of Social Services, 304 S.C. 195, 403
S.E.2d 615 (1991); Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995). See
also § 26.6.
10 See §§ 26.3 to 26.8.
11 See §§ 26.9 to 26.12. For example, a jailer or other custodian of a
dangerous person owes a duty of reasonable care to prevent that person
from harming others, see § 26.11.
12 See Chapter 25.
13 See, e.g., Domagala v. Rolland, 805 N.W.2d 14 (Minn. 2011);
Madison ex rel. Bryant v. Babcock Center, Inc., 371 S.C. 123, 638 S.E.2d
650 (2006); Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197 (2004).
14 See, e.g., Parish v. Truman, 124 Ariz. 228, 603 P.2d 120 (Ct. App.
1979) (defendant opened door to unknown persons in a dangerous area,
held, no duty because there was no special relationship between defendant
and plaintiff, who was his social guest); Brewster v. Rush-Presbyterian-St.
Luke’s Medical Center, 361 Ill.App.3d 32, 836 N.E.2d 635, 296 Ill. Dec. 884
(2005) (defendant alleged worked employee 32 consecutive hours and
should have known she was unfit to drive; she fell asleep at the wheel on
leaving employment, running into the plaintiff, but employer had no duty
to the plaintiff); Fiala v. Rains, 519 N.W.2d 386 (Iowa 1994) (defendant
met plaintiff in bar and invited him and others to her house, failing to tell
the man that she had another male friend who was extremely jealous;
male friend attacked plaintiff; no liability).
15 See Johnstone v. City of Albuquerque, 140 N.M. 596, 145 P.3d 76
(Ct. App. 2006) (“Conduct that falls below a standard of care does not
alone support liability. To impose a duty, a relationship must exist that
legally obligates Defendant to protect Plaintiff’s interest.”).
16 See, e.g., Anderson v. PPCT Management Systems, Inc., 145 P.3d
503 (Alaska 2006) (negligently training a corrections officer who harmed
plaintiff); Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779
(1998) (transporting dangerous prisoner to clinic; prisoner attacked
plaintiffs); Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006)
(carry-home asbestos); Satterfield v. Breeding Insulation Co., 266 S.W.3d
347 (Tenn. 2008) (same); see also Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 19, cmt. e (2010).
17 See, e.g., Lokey v. Breuner, 358 Mont. 8, 243 P.3d 384 (2010).
18 Hanks v. Melancon, 338 So.2d 1215 (La. App. 1976).
19 The apparent ability of the signaling driver to assess safety more
accurately than the plaintiff is key evidence in determining whether to
interpret the signal as a communication about safety. See Dawson v.
Griffin, 249 Kan. 115, 816 P.2d 374 (1991).
20 Key v. Hamilton, 963 N.E.2d 573 (Ind. Ct. App. 2012) (driver who
signaled motorist through intersection owed duty to injured motorcyclist);
contra, Gilmer v. Ellington, 159 Cal.App.4th 190, 70 Cal.Rptr.3d 893
(2008) (gesturing driver owed no duty to injured motorcyclist).
21 Frey v. Woodard, 748 F.2d 173 (3d Cir. 1984); Phillips v. Capps,
155 Ariz. 597, 748 P.2d 1221 (1988); Key v. Hamilton, 963 N.E.2d 573 (Ind.
Ct. App. 2012). See also Joseph B. Conder, Annotation, Motorist’s Liability
for Signaling Other Vehicle or Pedestrian to Proceed, or to Pass Signaling
Vehicle, 14 A.L.R.5th 193 (1993).
22 Hellums v. Raber, 853 N.E.2d 143 (Ind. App. 2006) (on the theory
that the first hunter was aiding or encouraging the second).
23 E.g., Randi W. v. Muroc Joint Unified Sch. Dist., 14 Cal.4th 1066,
929 P.2d 582, 60 Cal.Rptr.2d 263 (1997) (letter of recommendation created
impression that teacher would be safe around children).
24 See Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003). Cf.
Bryson v. Banner Health System, 89 P.3d 800 (Alaska 2004) (group
treatment center owed duty to plaintiff who was attacked by co-participant
in treatment, where center employees knew of attacker’s history of
violence yet encouraged plaintiff and others to “support” each other
outside the group).
25 See § 26.11.
26 See § 26.7.
27 See § 26.12.
28 Faverty v. McDonald’s Restaurants of Oregon, Inc., 133 Or. App.
514, 892 P.2d 703 (1995); Robertson v. LeMaster, 171 W.Va. 607, 301
S.E.2d 563 (1983).For other cases involving the active creation of a risk of
injury by a third person, see § 26.2.
29 Employees on their way home are seldom within the scope of
employment, see § 428, so vicarious liability is usually out of the question.
See Lev v. Beverly Enterprises—Massachusetts, Inc., 457 Mass. 234, 929
N.E.2d 303 (2010).
30 E.g., Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex.
2009).
31 Liberty Nat’l Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696
(1957); Bajwa v. Metropolitan Life Ins. Co., 208 Ill. 2d 414, 804 N.E.2d
519, 281 Ill.Dec. 554 (2004).
32 See § 25.4.
33 See, e.g., Pipher v. Parsell, 930 A.2d 890 (Del. 2007) (driver of
private automobile owed duty to passenger to guard against another
passenger’s foreseeable interference with safe driving). However, many
courts are quite cautious in recognizing a duty based on a “special
relationship” that does not fit within a recognized category. See, e.g., Hurn
v. Greenway, 293 P.3d 480 (Alaska 2013) (defendant danced provocatively
with a woman, while both the woman and her husband were guests on his
property; no special relationship between defendant and either the victim
or the attacker; attack had nothing to do with land possession and was
also unforeseeable); Ouch v. Khea, 963 A.2d 630 (R.I. 2009) (no duty owed
by driver to passengers who were members of the same “street gang” to
protect them from intentional criminal acts of rival gang members).
34 See, e.g., Commonwealth v. Peterson, 749 S.E.2d 307 (Va. 2013)
(no duty owed by state to warn Virginia Tech students about the
possibility of a shooter on campus, after officials had begun investigating
off-campus shooting and believed that shooter had fled the area and posed
no danger to others); O’Brien v. Synnott, 72 A.3d 331 (Vt. 2013) (hospital
and nurse owed no duty to patient to protect him from alleged attacks by
police officers while he was in the hospital, where such attacks were not
reasonably foreseeable).
35 See § 26.5.
36 See § 26.6. Some courts have recognized that the relationship
between hospital and patient gives rise to a duty of reasonable care to
protect the patient from third-party attack, although the contours of such
a duty are not clear. See McSwane v. Bloomington Hosp. & Healthcare
Sys., 916 N.E.2d 906 (Ind. 2009) (but suggesting no breach of duty, and
holding the duty did not extend to protection from off-premises attack).
37 See § 26.6.
38 Id.
39 See § 26.8.
40 See Smith v. Cumberland County Agricultural Soc’y, 163 N.C.
346, 79 S.E. 632 (1913) (“fairs, shows and theaters”).
41 Todd v. Mass Transit Admin., 373 Md. 149, 816 A.2d 930 (2003).
See § 408.
43 Stanton v. University of Maine System, 773 A.2d 1045 (Me. 2001).
44 Marshall v. Burger King Corp., 222 Ill. 2d 422, 856 N.E.2d 1048,
305 Ill. Dec. 897 (2006).
45 E.g., Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d
606, 407 N.E.2d 451 (1980). See also § 15.14. The victim may still face
difficulty in proving factual cause. See Saelzler v. Advanced Group 400, 25
Cal. 4th 763, 23 P.3d 1143, 107 Cal. Rptr.2d 617 (2001) (better security
would have made premises safer, but not necessarily for the particular
plaintiff, whose attackers might have been able to enter premises and
might have eluded patrols). On this problem, see § 14.8.
46 See Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.
1985) (vacant apartment, no lock).
47 Greco v. Sumner Tavern, Inc., 333 Mass. 144, 128 N.E.2d 788
(1955).
48 E.g., Cullum v. McCool, 432 S.W.3d 829 (Tenn. 2013).
49 Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986).
50 Dudas v. Glenwood Golf Club, Inc., 261 Va. 133, 540 S.E.2d 129
(2001).
51 Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606,
407 N.E.2d 451 (1980).
52 Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982).
53 Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048 (Ind.
2003); Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010)
(purporting to apply a general foreseeability test, but noting that the
defendant actually knew that the harm to the plaintiff was imminent).
54 Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo.
1988); Bray v. St. John Health System, Inc., 187 P.3d 721 (Okla. 2008).
55 Sharpe v. Peter Pan Bus Lines, Inc., 401 Mass. 788, 519 N.E.2d
1341 (1988).
56 The limit of the owner’s property is usually the limit of the
owner’s obligation. See McSwane v. Bloomington Hospital and Health
Care System, 916 N.E.2d 906 (Ind. 2009); Simpson v. Big Bear Stores Co.,
73 Ohio St.3d 130, 652 N.E.2d 702 (1995); Estate of Desir ex rel. Estiverne
v. Vertus, 214 N.J. 303, 69 A.3d 1247 (2013). Some courts decline to draw
the boundary line as brightly. See, e.g., Banks v. Hyatt Corp., 722 F.2d 214
(5th Cir. 1984) (maintenance of security patrols off property could enlarge
duty-area); Novak v. Capital Management & Development Corp., 432 F.3d
902 (D.C. Cir. 2006) (where defendant made “substantial special use” of an
alley, and attack was foreseeable), after remand, Novak v. Capital
Management & Development Corp., 570 F.3d 305 (D.C. Cir. 2009)
(affirming plaintiff’s verdict); Reynolds v. CB Sports Bar, Inc., 623 F.3d
1143 (7th Cir. 2010) (duty to protect bar patron from off-premises attack,
where the bar’s employees knew or should have known that two other
patrons were getting the plaintiff intoxicated in the bar for the purpose of
sexually exploiting her elsewhere).
57 See Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428
(2006).
58 See Isaacs v. Huntington Memorial Hosp., 38 Cal.3d 112, 211
Cal.Rptr. 356, 695 P.2d 653 (1985); Monk v. Temple George Associates,
LLC, 273 Conn. 108, 869 A.2d 179 (2005) (but saying that foreseeability
alone cannot trigger a duty if public policy cuts against it).
59 See Small v. McKennan Hospital, 437 N.W.2d 194 (S.D. 1989).
60 Clohesy v. Food Circus Supermarkets, Inc. 149 N.J. 496, 694 A.2d
1017 (1997).
61 Volpe v. Gallagher, 821 A.2d 699 (R.I. 2003).
62 Clohesy v. Food Circus Supermarkets, Inc. 149 N.J. 496, 507, 694
A.2d 1017, 1023 (1997).
63 See Boren v. Worthen Nat’l Bank of Arkansas, 324 Ark. 416, 921
S.W.2d 934 (1996) (rejecting the “totality of circumstances” approach on
the ground that it “would result in the imposition of a duty to guard
against random criminal acts by third parties” and would penalize
businesses operating in high-crime areas).
64 See Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d
339 (1997) (landlord’s knowledge of several prior burglaries might be
enough to show that rape of a tenant was foreseeable).
65 L.A.C. v. Ward Parkway Shopping Ctr. Co., 75 S.W.3d 247 (Mo.
2002).
66 Burns v. Johnson, 250 Va. 41, 458 S.E.2d 448 (1995).
67 Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 863 P.2d
207, 25 Cal.Rptr.2d 137 (1993).
68 See § 12.2.
69 Morris v. De La Torre, 36 Cal. 4th 260, 113 P.3d 1182, 30 Cal.
Rptr. 3d 173 (2005).
70 Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 249, 113 P.3d 1159,
1175, 30 Cal. Rptr. 3d 145, 164 (2005). On undertakings, see §§ 25.6 &
25.7.
71 Hurn v. Greenway, 293 P.3d 480 (Alaska 2013); Posecai v. Wal-
Mart Stores, Inc., 752 So.2d 762 (La. 1999); Bass v. Gopal, Inc., 395 S.C.
129, 716 S.E.2d 910 (2011); McClung v. Delta Square Ltd. P’ship, 937
S.W.2d 891, 901 (Tenn.1996). Thus if the plaintiff claims that a business
should have maintained expensive security guards, a high probability of
criminal injury or death might be required as a matter of law by casting
the question as one of duty; but if the plaintiff only claims that lighting
should have been better to discourage criminal attacks, the court applying
a balancing test may recognize a duty of reasonable care and leave it to the
trier to determine whether the business was negligent in failing to have
better lighting. See Pinsonneault v. Merchants & Farmers Bank & Trust
Co., 816 So.2d 270 (La. 2002).
72 The California Supreme Court has continued to apply a
requirement of “heightened foreseeability” in the context of third-party
criminal acts, see Wiener v. Southcoast Childcare Centers, Inc., 32 Cal.
4th 1138, 1149–1150, 88 P.3d 517, 524, 12 Cal. Rptr. 3d 615, 623 (2004),
but has indicated that the “heightened foreseeability” required to impose
heavy burdens of precaution is not required to impose a duty of reasonable
care that entails only simple or minimal burdens. Delgado v. Trax Bar &
Grill, 36 Cal. 4th 224, 145, 113 P.3d 1159, 1172, 30 Cal. Rptr. 3d 145, 161
(2005). See also Sigmund v. Starwood Urban Retail VI, LLC, 617 F.3d 512
(D.C. Cir. 2010) (D.C. law requires “precise proof of a heightened showing
of foreseeability” in third-party criminal-attack cases).
73 A court may use proximate cause as the vehicle for a defense
judgment, on a finding that the intervening criminal act was
unforeseeable. See, e.g., Double Quick, Inc. v. Moore, 73 So. 3d 1162 (Miss.
2011).
74 Wiener v. Southcoast Childcare Centers, Inc., 32 Cal.4th 1138, 88
P.3d 517, 12 Cal.Rptr.3d 615 (2004).
75 Wiener, 32 Cal. 4th at 1148–1149, 88 P.3d at 525, 12 Cal. Rptr. 3d
at 622–623 (“[O]ur cases analyze third party criminal acts differently from
ordinary negligence, and require us to apply a heightened sense of
foreseeability before we can hold a defendant liable for the criminal acts of
third parties.”).
76 “[I]n the present action, the one freak accident involving a
runaway mail truck in which no one was injured could have occurred
anywhere, at any time. That fact, together with the evidence indicating
the physical layout of defendants’ fence and the playground had
adequately protected the children against all other intrusions, was simply
inadequate to make any automobile intrusion through the fence
foreseeable.” Wiener, 32 Cal. 4th at 1150, 88 P.3d at 524, 12 Cal. Rptr. 3d
at 624.
77 See Monk v. Temple George Associates, LLC, 273 Conn. 108, 869
A.2d 179 (2005) (finding material issues of fact on whether defendant was
negligent and whether any negligence was a cause of the harm, in a case
involving an attack in defendant’s parking garage); Bass v. Gopal, Inc.,
395 S.C. 129, 716 S.E.2d 910 (2011) (affirming summary judgment for
motel in negligence case brought by guest shot by an assailant on the
property; while a duty was owed, plaintiff failed to adduce any evidence
that respondent’s preventive actions were unreasonable given the degree
of risk). See also Double Quick, Inc. v. Moore, 73 So.3d 1162 (Miss. 2011)
(reversing trial court’s denial of defense motion for summary judgment in
premises liability action against convenience store sued for negligence in
failing to protect victim from fatal shooting; plaintiff failed to produce
evidence that the fatal shooting was reasonably foreseeable, thus case
failed on proximate cause grounds).
78 See Kelly v. Retzer & Retzer, Inc., 417 So.2d 556 (Miss. 1982).
79 See Draper Mortuary v. Superior Court, 135 Cal. App.3d 533, 185
Cal. Rptr. 396 (1982) (sexual assault on body in mortuary, jury question
whether mortuary had exercised reasonable care).
80 Kentucky Fried Chicken of California, Inc. v. Superior Court, 14
Cal.4th 814, 927 P.2d 1260, 59 Cal.Rptr.2d 756 (1997).
81 Boyd v. Racine Currency Exchange, Inc., 56 Ill.2d 95, 306 N.E.2d
39 (1973) (robber who demanded that a teller give him money, else he
would shoot a customer; the teller didn’t and the robber did, killing Boyd;
a duty of care on these facts would only benefit criminals, who would then
be encouraged to take hostages).
82 The duty of landlords and condominiums runs not only to the
tenant but to the tenant’s guests. Martinez v. Woodmar IV Condominiums
Homeowners Ass’n, Inc., 189 Ariz. 206, 941 P.2d 218 (1997); Thomas v.
Columbia Group, LLC, 969 So.2d 849 (Miss. 2007).
83 Where a person actively creates a risk of harm, a no-duty rule has
no logical application. See § 26.2.
84 Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 224
N.W.2d 843 (1975) (commercial lease to innocuously named mental health
clinic whose major clients were convicted criminals on parole; no warning
to other tenants, liability for attack by clinic’s criminal client on employee
of commercial tenant). Liability for leasing to known gang members is
difficult to impose, largely because of anti-discrimination laws that remove
many of the landlord’s options. Casteneda v. Olsher, 41 Cal.4th 1205, 63
Cal. Rptr. 3d 99, 162 P.3d 610 (2007). Many courts have been reluctant to
impose a duty on landlords to control tenants’ pets. See e.g., Smaxwell v.
Bayard, 274 Wis.2d 278, 682 N.W.2d 923 (2004) (as a matter of public
policy, the landlord/landowner who was not an owner or keeper of the pets
would not be liable; there would be no sensible stopping place for liability).
85 Scully v. Fitzgerald, 179 N.J. 114, 843 A.2d 1110 (2004).
86 See Or v. Edwards, 62 Mass. App. Ct. 475, 818 N.E.2d 163 (2004);
see also Rowe v. State Bank of Lombard, 125 Ill.2d 203, 531 N.E.2d 1358,
126 Ill. Dec. 519 (1988) (landlord assumed a duty of care by retaining a
copy of tenant’s key and then allowing it to get into attacker’s hands); but
cf. Doe v. Linder Const. Co., 845 S.W.2d 173 (Tenn. 1992) (no liability on
proximate cause grounds where owner-developer of planned-unit
development failed to secure pass-keys to homes and plaintiff, a resident,
was raped by a painter-paper hanger employed by defendant).
87 See Tracy A. Bateman & Susan Thomas, Annotation, Landlord’s
Liability For Failure to Protect Tenant From Criminal Acts of Third
Person, 43 A.L.R.5th 207 (1996).
88 Sharp v. W.H. Moore, Inc., 118 Idaho 297, 796 P.2d 506 (1990);
Tenney v. Atlantic Associates, 594 N.W.2d 11 (Iowa 1999); Nash v. Port
Authority of New York and New Jersey, 51 A.D.3d 337, 856 N.Y.S.2d 583
(2008) (owner of World Trade Center had duty to take reasonable action to
minimize the risk of harm from 1993 terrorist bombing; landlord’s
overarching duty is to act as a reasonable person in maintaining property
in a reasonable condition in view of all the circumstances); but see
Funchess v. Cecil Newman Corp., 632 N.W.2d 666 (Minn. 2001) (invoking
no-duty rule).
89 Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980).
90 Duncavage v. Allen, 147 Ill.App.3d 88, 497 N.E.2d 433, 100
Ill.Dec. 455 (1986).
91 See Cordes v. Wood, 918 P.2d 76 (Okla. 1996).
92 See Brock v. Watts Realty Co., Inc., 582 So.2d 438 (Ala. 1991)
(housing code violations).
93 See Veazey v. Elmwood Plantation Associates, Ltd., 650 So.2d 712
(La. 1994).
94 See O’Hara v. Western Seven Trees Corp., 75 Cal. App.3d 798, 142
Cal.Rptr. 487 (1977).
95 Poor lighting or other conditions outside the apartment may
increase the tenant’s vulnerability in the apartment. See Hemmings v.
Pelham Wood Ltd. Liability Partnership, 375 Md. 522, 826 A.2d 443
(2003).
96 See Walls v. Oxford Management Co., 137 N.H. 653, 633 A.2d 103
(1993).
97 Rowe v. State Bank of Lombard, 125 Ill.2d 203, 531 N.E.2d 1358,
126 Ill. Dec. 519 (1988) (by retaining a copy of key and then allowing it to
get into attacker’s hands, landlord breached an implicitly assumed duty of
care); Tenney v. Atlantic Associates, 594 N.W.2d 11 (Iowa 1999).
98 Kline v. 1500 Massachusetts Ave. Apt. Corp., 439 F.2d 477 (D.C.
Cir. 1970).
99 When the landlord undertakes a duty of care, his undertaking, not
foreseeability, is the basis for and hence the measure of his responsibility.
Thus where a landlord has undertaken to provide reasonable security
measures such as exterior lighting, he must maintain such lighting in a
reasonable manner. Hemmings v. Pelham Wood Ltd. Liability
Partnership, 375 Md. 522, 826 A.2d 443 (2003).
100 E.g., Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980) (75 or
more incidents of crime against persons in neighborhood and in apartment
house in recent years).
101 See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d
749 (Tex. 1998) (no violent personal crimes in the apartment complex in
the previous ten years; no duty to provide additional security).
102 E.g., Jacqueline S. v. City of New York, 81 N.Y.2d 288, 614 N.E.2d
723, 598 N.Y.S.2d 160 (1993).
103 Brock v. Watts Realty Co., 582 So.2d 438, 43 A.L.R.5th 839 (Ala.
1991) (statutory duty to keep locks in repair, similar incidents not
required); Tenney v. Atlantic Associates, 594 N.W.2d 11 (Iowa 1999) (key
management).
104 Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 224
N.W.2d 843 (1975).
105 See Doe v. Dominion Bank of Washington, N.A., 963 F.2d 1552
(D.C.Cir. 1992) (extending the principle of Kline v. 1500 Massachusetts
Avenue Apartment Corp., 439 F.2d 477, 43 A.L.R.3d 311 (D.C. Cir. 1970),
to commercial leases).
106 See Restatement Second of Torts § 314A(4) (1965).
107 See, e.g., Mattox v. State Dep’t of Corrections, 323 P.3d 23 (Alaska
2014); Giraldo v. California Dep’t of Corrections and Rehabilitation, 168
Cal.App.4th 231, 85 Cal.Rptr.3d 371 (2008) (citing cases from many
jurisdictions).
108 Joseph v. State, 26 P.3d 459 (Alaska 2001); Falkenstein v. City of
Bismarck, 268 N.W.2d 787 (N.D. 1978).
109 Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31 (1997)
(arrestee attacked by his girlfriend while he was handcuffed). Jailers who
fail in their duty might be held liable either under state tort law or under
federal civil rights laws. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976).
110 See Niece v. Elmview Group Home, 131 Wash.2d 39, 929 P.2d 420
(1997) (group home for developmentally disabled); Regions Bank & Trust
v. Stone County Skilled Nursing Facility, Inc., 345 Ark. 555, 49 S.W.3d
107 (2001) (nursing home); see also Youngberg v. Romeo, 457 U.S. 307,
102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (federal due process rights; state
institution for the mentally retarded).
111 Dragomir v. Spring Harbor Hospital, 970 A.2d 310 (Me. 2009).
112 McSwane v. Bloomington Hospital and Healthcare System, 916
N.E.2d 906 (Ind. 2009) (but finding no breach of duty as a matter of law).
113 See Hite v. Brown, 100 Ohio App.3d 606, 654 N.E.2d 452 (1995).
114 A.R.H. v. W.H.S., 876 S.W.2d 687 (Mo. App. 1994) (grandmother);
Kellermann v. McDonough, 278 Va. 478, 684 S.E.2d 786 (2009) (mother of
friend of child who was entrusted by parents with child’s welfare during
visit to friend’s house).
115 Frideres v. Schiltz, 540 N.W.2d 261 (Iowa 1995); Werre v. David,
275 Mont. 376, 913 P.2d 625 (1996).
116 See O.L. v. R. L., 62 S.W.3d 469 (Mo. App. 2001).
117 McLeod v. Grant County School Dist. No. 128, 42 Wash.2d 316,
255 P.2d 360 (1953) (“the protective custody of teachers is mandatorily
substituted for that of the parent”).
118 Stiff v. Eastern Illinois Area of Special Educ., 279 Ill. App. 3d
1076, 666 N.E.2d 343, 216 Ill. Dec. 893 (1996) (parental immunity);
Henrich v. Libertyville High School, 186 Ill. 2d 381, 712 N.E.2d 298 (1998)
(broad statutory immunity); Allan E. Korpela, Annotation, Modern Status
of Doctrine of Sovereign Immunity as Applied to Public Schools and
Institutions of Higher Learning, 33 A.L.R.3d 703 (1971).
119 See, e.g., Eric M. v. Cajon Valley Union School Dist., 174
Cal.App.4th 285, 95 Cal.Rptr.3d 428 (2009); Jerkins v. Anderson, 191 N.J.
285, 922 A.2d 1279 (2007).
120 Lunsford v. Board of Educ. of Prince George’s County, 280 Md.
665, 374 A.2d 1162 (1977).
121 Eisel v. Board of Educ. of Montgomery County, 324 Md. 376, 597
A.2d 447, 17 A.L.R.5th 957 (Ct. App. 1991). Statutes may cover this area.
See Carrier v. Lake Pend Oreille School Dist., 142 Idaho 804, 134 P.3d 655
(2006) (construing Idaho Code § 33–512B, which places a teacher or
district under a duty to warn of a student’s “suicidal tendencies” only when
the teacher has “direct knowledge” such tendencies).
122 See Mikell v. School Admin. Unit No. 33, 158 N.H. 723, 972 A.2d
1050 (2009); see also Rogers v. Christina School Dist., 73 A.3d 1 (Del.
2013) (no liability on general negligence theory, but defendant might be
negligent per se based on violation of state Education Code). As an
alternative to a no-duty ruling, a student’s suicide may be held to be a
superseding intervening cause. See Corales v. Bennett, 567 F.3d 554 (9th
Cir. 2009) (applying California law).
123 See A.W. v. Lancaster County School Dist. 0001, 280 Neb. 205, 784
N.W.2d 907 (2010).
124 See, e.g., Zeno v. Pine Plains Cent. School Dist., 702 F.3d 655 (2d
Cir. 2012) (affirming jury verdict against school district in case brought
under Title VI, where defendant allowed plaintiff’s fellow high school
students to racially harass him for three and a half years).
125 Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326
(1987).
126 Jennifer C. v. Los Angeles Unified School Dist., 168 Cal.App.4th
1320, 86 Cal.Rptr.3d 274 (2008); Mirand v. City of New York, 84 N.Y.2d
44, 614 N.Y.S. 2d 372, 637 N.E.2d 263 (1994); McLeod v. Grant County
School Dist. No. 128, 42 Wash.2d 316, 255 P.2d 360 (1953).
127 C.A. v. William S. Hart Union High School Dist., 53 Cal. 4th 861,
138 Cal. Rptr. 3d 1, 270 P.3d 699 (2012); Doe Parents No. 1 v. State, Dep’t
of Educ., 100 Hawai’i 34, 58 P.3d 545 (2002); Marquay v. Eno, 139 N.H.
708, 662 A.2d 272 (1995). Statutes sometimes grant immunity to teachers
for acts and omissions resulting from the supervision, care or discipline of
students, as long as the teacher acts in good faith and does not engage in
gross negligence or willful misconduct. See, e.g., Va. Code Ann. § 8.01–
220.1:2.
128 Statutes requiring the report of suspected child abuse may require
teachers as well as some others to report incidents of abuse, including
abuse inflicted by third persons entirely outside the school setting, see
Kimberly S.M. v. Bradford Central School, 226 A.D.2d 85, 649 N.Y.S.2d
588 (1996), but many courts have held that violation of these statutes is
not negligence per se. See, e.g., Perry v. S.N., 973 S.W.2d 301 (Tex. 1998).
129 See Stoddart v. Pocatello School Dist. No. L25, 149 Idaho 679, 239
P.3d 784 (2010); Young v. Salt Lake City School Dist., 52 P.3d 1230 (Utah
2002); Edson v. Barre Supervisory Union No. 61, 182 Vt. 157, 933 A.2d 200
(2007); but see Jerkins v. Anderson, 191 N.J. 285, 922 A.2d 1279 (2007)
(school’s duty of reasonable supervision requires school to create
reasonable dismissal policies to protect students as the school day ends).
130 E.g., Skinner v. Vacaville Unified School Dist., 37 Cal.App.4th 31,
43 Cal.Rptr.2d 384 (1995); Doe A. v. Coffee County Board of Educ., 925
S.W.2d 534 (Tenn. App. 1996).
131 See Beshears v. United School District No. 305, 261 Kan. 555, 930
P.2d 1376 (1997) (after-school, off-grounds fight was unforeseeable and
school is not liable for injuries inflicted; expressed as a no-duty rule).
132 E.g., Garcia v. City of New York, 222 A.D.2d 192, 646 N.Y.S.2d
508 (1996) (small child allowed to go to bathroom alone in violation of
school safety rules was sexually assaulted, judgment for plaintiff
affirmed).
133 L.W. ex rel. L.G. v. Toms River Regional Schools Board of Educ.,
189 N.J. 381, 915 A.2d 535 (2007) (applying state Law against
Discrimination statute, which creates a cause of action against a school
district for student-on-student sexual-orientation harassment).
134 John R. v. Oakland Unified School Dist., 48 Cal.3d 438, 256
Cal.Rptr. 766, 769 P.2d 948 (1989); P. L. v. Aubert, 545 N.W.2d 666 (Minn.
1996).
135 See § 26.11; cf. C.A. v. William S. Hart Union High School Dist.,
53 Cal. 4th 861, 138 Cal. Rptr. 3d 1, 270 P.3d 699 (2012) (school district
vicariously liable for the negligence of school administrators in the
supervision of employees who abused student); Randi W. v. Muroc Joint
Unified School District, 14 Cal.4th 1066, 60 Cal. Rptr.2d 263, 929 P. 2d
582 (1997) (allegation that defendant, with knowledge of the problem,
negligently recommended a sexually dangerous person to a school, with
resulting molestation of student at the new school).
136 See Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995)
(distinguishing between school personnel who have relationships to
students and owe a duty for that reason and school personnel who have
responsibility for hiring and firing; the latter may owe duties of care in
selecting teachers and discharging them).
137 E.g., Moore v. Berkeley County School Dist., 326 S.C. 584, 486
S.E.2d 9 (1997) (school knew that teacher ran a lax classroom but had no
notice that she was having sex with students; no liability).
138 Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331
(1983); Miller v. State, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829
(1984).
139 Stanton v. University of Maine System, 773 A.2d 1045 (Me. 2001);
Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993).
140 George v. University of Idaho, 121 Idaho 30, 822 P.2d 549 (Ct.App.
1991) (faculty-student handbook and customs; university’s failure to
prevent repeated sexual harassment by law professor); Delaney v.
University of Houston, 835 S.W.2d 56 (Tex. 1992) (assurance of security,
failure to repair broken lock).
141 Nova Southeastern University, Inc. v. Gross, 758 So.2d 86 (Fla.
2000).
142 See Hall v. Board of Supervisors Southern University, 405 So.2d
1125 (La. App. 1991) (no proof of breach or factual cause); Brown v. North
Carolina Wesleyan College, 65 N.C. App. 579, 309 S.E.2d 701 (1983) (no
breach of duty).
143 See Jain v. State, 617 N.W.2d 293 (Iowa 2000) (no duty to warn
college student’s parents that their son had attempted suicide earlier,
where university did not have “custody” of student and did nothing to
increase the risk of his suicide); Beach v. University of Utah, 726 P.2d 413,
62 A.L.R.4th 67 (Utah 1986).
144 E.g., Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768
(1993) but cf. Commonwealth v. Peterson, 749 S.E.2d 307 (Va. 2013) (no
duty to warn Virginia Tech students about the possibility of a shooter on
campus, after officials had begun investigating off-campus shooting and
believed that shooter had fled the area and posed no danger to others).
145 See Tanja H. v. Regents of Univ. of Cal., 228 Cal.App.3d 434, 278
Cal.Rptr. 918 (1991) (college’s failure to enforce its own drinking rules,
allegedly resulting in a dormitory sexual assault).
146 Varner v. District of Columbia, 891 A.2d 260 (D.C. 2006)
(dismissing a complaint that university negligently dealt with a dangerous
student, who was left free to, and did, murder another student); Eiseman
v. State, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987).
147 Liability does not always turn on custody, however. A public entity
that focuses on the plight of particular children at risk for domestic injury
has undertaken a duty of care and may become liable for negligence in
failing to protect the children. See District of Columbia v. Harris, 770 A.2d
82 (D.C. 2001). Federal constitutional rights may also be violated and a
federal civil rights action may lie when state officers affirmatively increase
the risk of harm to a discrete group of persons. See Joseph M. Pellicciotti,
Annotation on, “State-Created Danger,” or Similar Theory, as Basis for
Civil Rights Action under 42 U.S.C.A. § 1983, 159 A.L.R. Fed. 37 (2000);
Bennett ex rel. Irvine v. City of Philadelphia, 499 F.3d 281 (3d Cir. 2007).
148 Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976) (Eighth Amendment).
149 Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28
(1982) (due process).
150 DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S.
189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).
151 State tort law may defeat claims like the one in DeShaney on the
basis of immunity. See Marshall v. Montgomery County Children Services
Bd., 92 Ohio St. 3d 348, 750 N.E.2d 549 (2001).
152 See Brown v. Commonwealth of Pennsylvania, Dep’t of Health
Emergency Medical Services Training Institute, 318 F.3d 473 (3d Cir.
2003); Wyke v. Polk County School Board, 129 F.3d 560 (11th Cir. 1997).
153 Camp v. Gregory, 67 F.3d 1286 (7th Cir. 1995).
154 The constitutional standard for violation of due process is that the
defendant’s conduct shocks the conscience, often shown by deliberate
indifference. A failure to exercise professional judgment in investigating
foster homes may count as deliberate indifference. See Weatherford ex rel.
Michael L. v. State, 206 Ariz. 529, 81 P.3d 320 (2003).
155 E.g., Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th
Cir. 1990); Burton v. Richmond, 276 F.3d 973 (8th Cir. 2002).
156 K.H. v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990) (Posner, J.).
157 Kara B. v. Dane County, 205 Wis.2d 140, 555 N.W.2d 630 (1996).
158 Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013); Stevens v.
Umsted, 131 F.3d 697 (7th Cir. 1997); Patel v. Kent School Dist., 648 F.3d
965 (9th Cir. 2011).
159 Wyke v. Polk County School Board, 129 F.3d 560 (11th Cir. 1997).
160 See Johnson v. Dallas Independent School Dist., 38 F.3d 198 (5th
Cir. 1994).
161 See Doe v. Claiborne County, Tennessee, 103 F.3d 495 (6th Cir.
1996).
162 See Didier v. Ash Grove Cement Co., 272 Neb. 28, 718 N.W.2d 484
(2006) (duty of owner in possession and control of premises includes a duty
to provide a safe place for work by a contractor’s employee); Olivo v.
Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006) (reasonable care
duty owed to invitees, including independent contractor’s employees,
includes duty to provide a reasonably safe place in which to work).
163 See Linda A. Sharp, Annotation, Employer’s Liability to Employee
or Agent for Injury or Death Resulting from Assault or Criminal Attack by
Third Person, 40 A.L.R.5th 1 (1996).
164 Lillie v. Thompson, 332 U.S. 459, 92 L.Ed. 73, 68 S.Ct. 140 (1947).
165 Pratt v. St. Marie, 45 Or.App. 709, 609 P.2d 411 (1980) (defendant
hired plaintiff to help evict tenant but did not warn the plaintiff that the
tenant might be violent; defendant potentially liable when tenant shot the
plaintiff).
166 See Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229, 69
A.L.R.2d 1206 (6th Cir. 1956) (emphasizing employee’s reliance,
expectation, and the affirmative action of the employer in requiring
physical exams); Coffee v. McDonnell-Douglas Corp., 8 Cal. 3d 551, 503
P.2d 1366, 105 Cal. Rptr. 358 (1972) (pre-employment exam, relationship
of the parties created when defendant undertook the examination);
Dornak v. Lafayette General Hospital, 399 So.2d 168 (La. 1981) (pre-
employment exam). As to the physician’s personal duty to the pre-
employment examinee, see 2 Dobbs, Hayden & Bublick, The Law of Torts
§ 286 (2d ed. 2011 & Supp.).
167 See Bouley v. Guidry, 883 So.2d 1099 (La. App. 2004); Halvorsen
v. Ford Motor Co., 132 A.D.2d 57, 522 N.Y.S.2d 727 (1987); Taylor v.
Coats, 636 S.E.2d 581 (N.C. App. 2006).
168 Martinson v. Cagle, 454 So.2d 1383 (Ala. 1984); Olson v. Ische, 343
N.W.2d 284 (Minn. 1984); Champion ex rel. Ezzo v. Dunfee, 398
N.J.Super. 112, 939 A.2d 825 (App. Div. 2008). Distinguish the case of a
passenger who actively provides alcohol to the driver or encourages him to
engage in dangerous behavior. See, e.g., Shelter Mutual Ins. Co. v. White,
930 S.W.2d 1 (Mo.App. 1996).
169 See Hertog v. City of Seattle, 138 Wash.2d 265, 979 P.2d 400, 408
(1999) (“[C]ustodial control is not required. The relevant inquiry is the
relationship of the officer with the parolee.”); see also State, Dep’t of
Corrections v. Cowles, 151 P.3d 353 (Alaska 2006) (parole officer’s duty to
victims arose from officer’s supervisory relationship to parolee).
171 Duvall v. Lawrence, 86 S.W.3d 74 (Mo. App. 2002); Gritzner v.
Michael R., 235 Wis.2d 781, 611 N.W.2d 906 (2000).
172 Restatement Second of Torts § 317 (1965); Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (employer owed duty to
employees and their family members who came in contact with asbestos on
clothing, picked up at work). Where no risk of harm is foreseeable to the
employer, however, no liability can result. See, e.g., Martin v. Cincinnati
Gas and Elec. Co., 561 F.3d 439 (6th Cir. 2009) (no liability to family
member exposed to asbestos on father’s work clothes where it was not
reasonably foreseeable that the asbestos would pose a risk of harm to the
family member); Simpkins v. CSX Transp., Inc., 2012 IL 110662, 358 Ill.
Dec. 613, 965 N.E.2d 1092 (2012) (complaint was insufficient to establish
that railroad, allegedly negligent for failing to take precautions to protect
wife of employee from take-home asbestos on employee’s clothing,
although remand for leave to amend was warranted); McGuire v. Curry,
766 N.W.2d 501 (S.D. 2009) (no duty to perform background check before
hiring employee where his position did not require frequent contact with
the public). On the duty of employers to protect their own workers from
third-party attack, see § 26.8. On negligent hiring, supervision or retention
of employees who injure others, see § 26.11.
174 See Osborn v. Mason County, 157 Wash.2d 18, 134 P.3d 197
(2006) (public entity owes duty to protect against dangerous persons where
it has “authority to control” them, “to the extent it has authority to control
them”).
Harm) § 41 (2010) (stating that the list is not exclusive).
177 A number of states simply do not recognize a claim for negligent or
even wanton supervision of children. See Beddingfield v. Linam, 127 So.3d
1178 (Ala. 2013) (noting that there are “few reported cases, either in
Alabama or in other states, that have recognized [such] a claim”).
178 E.g., Dinsmore-Poff v. Alvord, 972 P.2d 978 (Alaska 1999) (“A
plaintiff must show that the parent had reason to know with some
specificity of a present opportunity and need to restrain the child to
prevent some imminently foreseeable harm. General knowledge of past
misconduct is, in other words, necessary but not sufficient for liability.”);
Parsons v. Smithey, 109 Ariz. 49, 504 P.2d 1272 (1973); Doe v. Andujar,
297 Ga.App. 696, 678 S.E.2d 163 (2009).
179 Wood v. Groh, 269 Kan. 420, 7 P.3d 1163 (2000); Gritzner v.
Michael R., 235 Wis.2d 781, 611 N.W.2d 906 (2000).
180 See, e.g., Williamson v. Daniels, 748 So.2d 754 (Miss. 1999).
181 Remsburg v. Montgomery, 376 Md. 568, 831 A.2d 18 (2003);
Bridges v. Parrish, 366 N.C. 539, 742 S.E.2d 794 (2013). Distinguish
Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418 (1991) (mother
providing drugs and alcohol to her grown, married son, knowing that these
substances make him violent; she is subject to liability to his abused wife).
182 See § 26.10.
183 Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006)
(exposure to asbestos on land, carried home); Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (same); see § 26.11.
184 Hardee v. Bio-Medical Applications of South Carolina, Inc., 370
S.C. 511, 636 S.E.2d 629 (2006).
185 Restatement Second of Torts § 318 (1965). See e.g., Volpe v.
Gallagher, 821 A.2d 699 (R.I. 2003) (for the benefit of a neighbor,
landowner under a duty of care to control dangerous person living in her
home and storing weapons there). When one in control of a chattel
supplies it to another for use that in some way benefits the supplier,
control and benefit together impose a duty of care to provide a safe chattel.
See Heinz v. Heinz, 653 N.W.2d 334 (Iowa 2002); Restatement Second of
Torts § 390 (1965). As to scope of liability (proximate cause) issues and the
non-liability of the entrustor where the entrustee is not at fault, see §
15.16.
186 Ardinger v. Hummell, 982 P.2d 727 (Alaska 1999). Entrustment to
the plaintiff herself might not be sufficient under Restatement Second §
308, see Stehlik v. Rhoads, 253 Wis.2d 477, 645 N.W.2d 889 (2002).
However, the Restatement Third generalizes the principle broadly, to
cover entrustments to a plaintiff who is dangerous to herself. See
19 (2010).
187 See, using the “injury to others” formula, Lulay v. Parvin, 359
Ill.App.3d 653, 834 N.E.2d 989, 296 Ill.Dec. 184 (2005); Tart v. Martin, 353
N.C. 252, 540 S.E.2d 332 (2000).
188 E.g., LeClaire v. Commercial Siding and Maintenance Co., 308
Ark. 580, 826 S.W.2d 247 (1992) (but atypically involving a sub-
entrustment); DeWester v. Watkins, 275 Neb. 173, 745 N.W.2d 330 (Neb.
2008); Green v. Harris, 70 P.3d 866 (Okla. 2003). Cf. Rippy v. Shepard, 80
So. 3d 305 (Fla. 2012) (applying state’s “dangerous instrumentality
doctrine,” holding that vicarious liability is imposed on the owner of a
motor vehicle, in this case a farm tractor, who entrusts the vehicle to
another person whose negligent operation causes harm to the plaintiff).
189 Morin v. Moore, 309 F.3d 316 (5th Cir. 2002); Kitchen v. K-Mart
Corp., 697 So.2d 1200 (Fla. 1997) (seller of firearm to intoxicated buyer
may be liable to woman he shot with the gun); Bernethy v. Walt Failor’s
Inc., 97 Wash.2d 929, 653 P.2d 280 (1982) (gun dealer allowed intoxicated
man to walk off with rifle); but see Hamilton v. Beretta U.S.A. Corp., 96
N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001) (refusing to apply
negligent entrustment theory to a claim that manufacturers of handguns
negligently marketed their products so as to facilitate illegal use resulting
in injury to the plaintiffs, because the manufacturer did not entrust to
specific individuals known to be dangerous, only to a class of persons who
were perhaps dangerous as a class). The federal statute providing an
immunity to many gun sellers and manufacturers where the plaintiff was
harmed by a criminal’s use of the gun contains an express exception for
negligent entrustment claims. 15 U.S.C.A. § 7903(5)(A)(ii).
190 Ardinger v. Hummell, 982 P.2d 727(Alaska 1999) (entrustment of
car to 15-year-old unlicensed driver); DeWester v. Watkins, 275 Neb. 173,
745 N.W.2d 330 (Neb. 2008) (entrustment of a car to a child); Green v.
Harris, 70 P.3d 866 (Okla. 2003) (same).
191 See Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949)
(lending automobile to man who could not reach brake pedals and had a
bad driving record).
192 Swicegood v. Cooper, 341 N.C. 178, 459 S.E.2d 206 (1995) (bad
driving record known to defendant).
193 E.g., Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992); Hays v. Royer,
384 S.W.3d 330 (Mo. Ct. App. 2012).
194 See Eagle Motor Lines, Inc. v. Mitchell, 223 Miss. 398, 78 So.2d
482 (1955). Departing from ordinary negligence rules, some cases have
required that the defendant have actual knowledge of the entrustree’s
intoxication or other disability at the time of the entrustment. See Frank
J. Wozniak, Annotation, Liability Based on Entrusting Automobile to One
Who is Intoxicated or Known to be Excessive User of Intoxicants, 91
A.L.R.5th 1, at § 4[a] (2001).
195 Danielle A. v. Christopher P., 3 Misc.3d 357, 776 N.Y.S.2d 446
(2004).
196 Phillips v. D’Amico, 21 So.2d 748 (La. App. 1945), overruled on
other grounds, Turner v. Bucher, 308 So.2d 270 (La. 1975).
197 See Moore v. Myers, 161 Md. App. 349, 868 A.2d 954 (2005) (pit
bull entrusted to child); Hickle v. Whitney Farms, Inc., 148 Wash. 2d 911,
64 P.3d 1244 (2003) (entrustment of hazardous substances to hauler).
198 West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545 (Tenn.
2005).
199 Fuller v. Standard Stations, Inc., 250 Cal. App.2d 687, 58 Cal.
Rptr. 792 (1967); Roberts v. Stop & Go, Inc., 502 So.2d 915 (Fla. Dist. Ct.
App. 1986).
200 See, e.g., Olguin v. City of Burley, 119 Idaho 721, 810 P.2d 255
(1991). Thus negligent entrustment may show contributory negligence as
well as negligence itself. Swicegood v. Cooper, 341 N.C. 178, 459 S.E.2d
206 (1995).
201 Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992); Frain v. State Farm
Ins. Co., 421 So.2d 1169 (La. Ct. App. 1982); see Ward Miller, Annotation,
Negligent Entrustment: Bailor’s Liability to Bailee Injured Through His
Own Negligence or Incompetence, 12 A.L.R.4th 1062 (1981).
202 E.g., Young v. U-Haul Co. of D.C., 11 A.3d 247 (D.C. 2011); Taft v.
Jumbo Foods, Inc., 155 Idaho 511, 314 P.3d 193 (2013); Guardianship of
Garvin v. Tupelo Furniture Market, Inc., 127 So.3d 197 (Miss. 2013).
203 See Carrera v. Maurice J. Sopp & Son, 177 Cal.App.4th 366, 99
Cal.Rptr.3d 268 (2009) (tow truck; citing cases involving large trucks and
bulldozers). Courts have been reluctant to impose liability where the
vehicle was an ordinary car or pickup truck. See Richards v. Stanley, 43
Cal.2d 60, 271 P.2d 23 (1954); Lucero v. Holbrook, 288 P.3d 1228 (Wyo.
2012).
204 E.g., Estate of Heck v. Stoffer, 786 N.E.2d 265 (Ind. 2003); Jupin
v. Kask, 447 Mass. 141, 849 N.E.2d 829 (2006); Kuhns v. Brugger, 390 Pa.
331, 135 A.2d 395 (1957). Some courts have rejected liability in such cases,
citing unforeseeability of harm or lack of causation on the particular facts.
205 Ability to control the chattel (rather than mere ownership) is what
most courts require, in line with the Restatement Second of Torts § 308
(1965). See Tissicino v. Peterson, 211 Ariz. 416, 121 P.3d 1285 (Ct. App.
2005) (citing cases from many jurisdictions); DeWester v. Watkins, 275
Neb. 173, 745 N.W.2d 330 (Neb. 2008).
206 E.g., Knighten v. Sam’s Parking Valet, 206 Cal.App.3d 69, 253
Cal.Rptr. 365 (1988); Umble v. Sandy McKie and Sons, Inc., 294 Ill.App.3d
449, 698 N.E.2d 157, 228 Ill.Dec. 848 (1998).
207 Olguin v. City of Burley, 119 Idaho 721, 810 P.2d 255 (1991); but
cf. Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987) (once
officer had arrested owner and taken keys, he was under a duty not to
make keys available to other dangerous drivers).
208 Vince v. Wilson, 151 Vt. 425, 561 A.2d 103 (1989).
209 Horne v. Vic Potamkin Chevrolet, Inc., 533 So.2d 261 (Fla. 1988).
210 Laurel Yamaha, Inc. v. Freeman, 956 So.2d 897 (Miss. 2007).
211 Kitchen v. K-Mart Corporation, 697 So.2d 1200 (Fla. 1997).
212 Valentine v. On Target, Inc., 353 Md. 544, 727 A.2d 947 (1999).
213 McGrane v. Cline, 94 Wash. App. 925, 973 P.2d 1092 (1999).
214 See Estate of Strever v. Cline, 278 Mont. 165, 924 P.2d 666 (1996).
215 Outside the gun context, the principle seems well established. See,
e.g., United States v. Stevens, 994 So.2d 1062 (Fla. 2008) (government
owes duty to prevent theft of anthrax it had developed).
216 15 U.S.C.A. §§ 7901 to 7903 (but containing an exception to
immunity for negligent entrustment).
218 Raas v. State, 729 N.W.2d 444 (Iowa 2007); Marceaux v. Gibbs,
699 So.2d 1065 (La. 1997).
219 Immunity may protect the public entity operating the prison. See
§ 22.11.
220 E.g., DeJesus v. U. S. Dep’t of Veterans Affairs, 384 F.Supp.2d 780
(E.D.Pa. 2005).
221 State, Dep’t of Corrections v. Cowles, 151 P.3d 353 (Alaska 2006);
Hertog v. City of Seattle, 138 Wash.2d 265, 979 P.2d 400 (1999).
222 See Sorichetti v. City of New York, 65 N.Y.2d 461, 492 N.Y.S.2d
591, 482 N.E.2d 70 (1985); Nearing v. Weaver, 295 Or. 702, 670 P.2d 137
(1983). However, absent an injunctive order or the like, courts usually
invoke some version of the public duty doctrine to relieve police from
liability for failure to arrest. See § 345.
223 E.g., Neal v. Shiels, Inc., 166 Conn. 3, 347 A.2d 102 (1974). See
David Rand, Jr., Annotation, Civil Liability of Mobile Vendor for
Attracting into Street Child Injured by Another’s Motor Vehicle, 84
A.L.R.3d 826 (1978).
224 In re September 11 Litigation, 280 F.Supp.2d 279 (S.D.N.Y. 2003).
225 Courts may find indirect control in the landlord’s ability to exclude
dangerous tenants or terminate their tenancy. On this or some similar
basis, the landlord may be held responsible for a tenant’s dangerous use of
firearms, Rosales v. Stewart, 113 Cal. App. 3d 130, 169 Cal. Rptr. 660
(1980), or a tenant’s dangerous pets, Giacalone v. Housing Authority of
Town of Wallingford, 306 Conn. 399, 51 A.3d 352 (2012); Strunk v.
Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13 (1984). When
courts think of control narrowly, however, liability may be denied because
the landlord has no control of the premises in the tenant’s possession, see,
e.g., Stewart v. Aldrich, 788 A.2d 603 (Me. 2002) (landlord’s liability for
attack by tenant’s dog depends upon right of control, which “does not
include the incidental control that comes from being able to threaten
tenants with nonrenewal of a lease or with eviction”); Frobig v. Gordon,
124 Wash. 2d 732, 881 P.2d 226 (1994) (liability flows from “ownership or
direct control”); Englund v. Vital, 2013 S.D. 71, 838 N.W.2d 621 (2013)
(landlord owed no duty to protect plaintiff from rock-throwing child of
tenants where landlord lacked control over tenants’ property). Liability for
leasing to illicit drug traffickers has also been difficult to impose. See
Muniz v. Flohern, Inc., 77 N.Y.2d 869, 568 N.Y.S.2d 725, 570 N.E.2d 1074
(1991) (commercial landlord owed no duty to person shot during a robbery
of the drug-dealing tenant).
226 Darling v. Charleston Community Memorial Hospital, 33 Ill.2d
326, 211 N.E.2d 253 (1965) (leading case); Strubhart v. Perry Memorial
Hospital Trust Authority, 903 P.2d 263 (Okla. 1995).
227 See Pamela L. v. Farmer, 112 Cal.App.3d 206, 169 Cal.Rptr. 282
(1980).
228 J.S. v. R.T.H., 155 N.J. 330, 714 A.2d 924 (1998).
229 Restatement Second of Torts § 317 (1965). This is the case, for
example, in many of the “fatigued employee” cases, where the employee
causes an accident on the way home because he has worked long hours.
E.g., Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012); Nabors Drilling,
U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009). On the other hand,
where the employer has exercised “control” in affirmatively encouraging
the employee to drive home drunk, for example, courts have found
liability. See Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983).
Such cases may be better analyzed as affirmative risk-creation cases,
making the “control” point largely irrelevant. See § 26.2.
230 See Underberg v. Southern Alarm, Inc., 284 Ga. App. 108, 643
S.E.2d 374 (2007); Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 38
A.L.R.4th 225 (Minn. 1983); J. v. Victory Tabernacle Baptist Church, 236
Va. 206, 372 S.E.2d 391 (1988). Negligent hiring of an independent
contractor who causes harm to others may also be actionable, see Schelling
v. Humphrey, 123 Ohio St.3d 387, 916 N.E.2d 1029 (2009) (negligent-
credentialing claim against hospital for negligently granting staff
privileges to a surgeon whose malpractice caused injury to plaintiff), but
the hiring employer is usually not liable to the negligently hired
independent contractor’s employee for on-the-job injury. See Carmago v.
Tjaarda Dairy, 25 Cal.4th 1235, 25 P.3d 1096, 108 Cal.Rptr.2d 617 (2001).
231 Foradori v. Harris, 523 F.3d 477 (5th Cir. 2008); Seguro v.
Cummiskey, 82 Conn. App. 186, 844 A.2d 224 (2004); Trahan-Laroche v.
Lockheed Sanders, Inc., 139 N.H. 483, 657 A.2d 417 (1995).
232 E.g., Welsh Mfg., Div. of Textron, Inc. v. Pinkerton’s, Inc., 474
A.2d 436, 44 A.L.R.4th 603 (R.I. 1984).
233 See, e.g., Doe v. Saint Francis Hosp. & Medical Center, 309 Conn.
146, 72 A.3d 929 (2013). Where the employment itself does not foreseeably
create the risk of harm that came to fruition, the employer may escape
liability for employee-caused injury. E.g., Raleigh v. Performance
Plumbing and Heating, Inc., 130 P.3d 1011 (Colo. 2006) (injury caused by
defendant’s employee as he was driving home from work).
234 Many courts have held that a claim of negligent hiring, training or
supervision may be maintained only where the employee has acted outside
the scope of employment. See Diaz v. Carcamo, 51 Cal.4th 1148, 126
Cal.Rptr.3d 443, 253 P.3d 535 (2011) (employer’s admission of vicarious
liability renders inadmissible any evidence of the employer’s negligence);
McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995); DiCosala v. Kay, 91 N.J.
159, 450 A.2d 508 (1982). Others allow such claims even where respondeat
superior liability has been admitted. See Quinonez v. Andersen, 144 Ariz.
193, 696 P.2 1342 (1984); Marquis v. State Farm Fire & Cas. Co., 265 Kan.
317, 961 P.2d 1213 (1998); James v. Kelly Trucking Co., 377 S.C. 628, 661
S.E.2d 329 (2008). Some allow the claims where the employee has acted
within the scope of employment only if the employer has been grossly
negligent in hiring, training or supervision of the employee. Lockett v. Bi-
State Transit Auth., 94 Ill.2d 66, 67 Ill. Dec. 830, 445 N.E.2d 310 (1983);
see Annotation, 30 A.L.R.4th 838 (1984).
235 E.g., Haddock v. City of New York, 140 A.D.2d 91, 532 N.Y.S.2d
379 (1988).
236 Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d
840 (Ky. 2005).
237 C.A. v. William S. Hart Union High School Dist., 53 Cal.4th 861,
138 Cal.Rptr.3d 1, 270 P.3d 699 (2012).
238 See Hornback v. Archdiocese of Milwaukee, 313 Wis.2d 294, 752
N.W.2d 862 (2008) (recovery against Catholic diocese precluded on policy
grounds).
239 Collette v. Tolleson Unified School Dist. No. 214, 203 Ariz. 359, 54
P.3d 828 (Ct. App. 2002).
14, 551 P.2d 334 (1976).
241 Once there is a legal duty in place for a therapist to reveal a
patient’s threats, the therapist breaches no duty of confidentiality by doing
so. See United States v. Auster, 517 F.3d 312 (5th Cir. 2008).
242 E.g., Hamman v. County of Maricopa, 161 Ariz. 58, 775 P.2d 1122
(1989) (rejecting specific-victim requirement); Schuster v. Altenberg, 144
Wis.2d 223, 424 N.W.2d 159 (1988) (same).
243 See Eisel v. Board of Educ. of Montgomery County, 324 Md. 376,
597 A.2d 447 (1991).
244 See, e.g., DeJesus v. U.S. Dep’t of Veterans Affairs, 479 F.3d 271
(3d Cir. 2007); Thompson v. County of Alameda, 27 Cal.3d 741, 167
Cal.Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701 (1980); Munstermann ex rel.
Rowe v. Alegant Health-Immanuel Medical Center, 271 Neb. 834, 716
N.W.2d 73 (2006); Emerich v. Philadelphia Center for Human
Development, Inc., 554 Pa. 209, 720 A.2d 1032 (1998); Doe v. Marion, 373
S.C. 390, 645 S.E.2d 245 (2007).
245 See Tedrick v. Community Resource Center, Inc., 235 Ill.2d 155,
920 N.E.2d 220, 336 Ill.Dec. 210 (2009).
246 Cal. Civ. Code § 43.92.
247 See Michael L. Perlin, Mental Disability Law: Civil and Criminal
(2d ed. 1998; 5 vols. & supps.) (reviewing many statutes).
248 See, e.g., Utah Code § 78–14a–102a.
249 See Ewing v. Northridge Hospital Medical Center, 120 Cal.
App.4th 1289, 16 Cal. Rptr. 3d 591 (2004); Munstermann v. Alegent
Health-Immanuel Medical Center, 271 Neb. 834, 716 N.W.2d 73 (2006).
250 Campbell v. Ohio State Univ. Medical Center, 108 Ohio St.3d 376,
843 N.E.2d 1194 (2006).
251 See Dawe v. Dr. Reuven Bar-Levav & Associates, P.C., 485 Mich.
20, 780 N.W.2d 272 (2010); Marshall v. Klebanov, 188 N.J. 23, 902 A.2d
873 (2006).
252 Adams v. Board of Sedgwick County Com’rs, 289 Kan. 577, P.3d
1173 (2009).
253 Emerich v. Philadelphia Center for Human Development, Inc., 554
Pa. 209, 720 A.2d 1032 (1998); Schuster v. Altenberg, 144 Wis.2d 223, 424
N.W.2d 159 (1988).
254 Van Horn v. Chambers, 970 S.W.2d 542 (Tex. 1998). Cf. McKenzie
v. Hawai’i Permanente Med. Group, Inc., 98 Hawai’i 296, 47 P.3d 1209
(2002) (prescribing physician under a duty to third persons to warn
patient of medication’s side effects that make driving dangerous, but not
under duty to use care in prescribing safer medication or dosage).
255 Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999); Nasser v. Parker,
249 Va. 172, 455 S.E.2d 502 (1995). However, Texas recognizes a duty of
care to control a patient in custody to prevent foreseeable and reasonably
preventable harms. See Texas Home Management, Inc. v. Peavy, 89
S.W.3d 30 (Tex. 2002).
256 See also § 21.4.
257 See Tracy A. Bateman, Annotation, Liability of Doctor or Other
Health Practitioner to Third Party Contracting Contagious Disease from
Doctor’s Patient, 3 A.L.R.5th 370 (1992).
258 See Reisner v. Regents of Univ. of Cal., 31 Cal.App.4th 1195, 37
Cal. Rptr. 2d 518 (1995); C.W. v. Cooper Health System, 388 N.J.Super.
42, 906 A.2d 440 (2006) (positive HIV test); DiMarco v. Lynch Homes-
Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990); Estate of Amos v.
Vanderbilt Univ., 62 S.W.3d 133 (Tenn. 2001) (possible exposure to HIV
from blood transfusion).
259 See, e.g., Davis v. Rodman, 147 Ark. 385, 227 S.W. 612, 13 A.L.R.
1459 (1921) (but denying liability on causal grounds); Bradshaw v. Daniel,
854 S.W.2d 865 (Tenn. 1993).
296, 47 P.3d 1209 (2002); Coombes v. Florio, 450 Mass. 182, 877 N.E.2d
567 (2007). Courts have rejected claims that a pharmacist owes a duty to
third persons in connection with filling prescriptions. See, e.g., Sanchez v.
Wal-Mart Stores, Inc., 221 P.3d 1276 (Nev. 2009). This is in line with the
rule that the pharmacist typically owes no duty to warn the patient
directly of a drug’s side-effects where the doctor has prescribed it. See §§
328 & 466.
261 Hardee v. Bio-Medical Applications of South Carolina, Inc., 370
S.C. 511, 636 S.E.2d 629 (2006) (“Importantly, this duty owed to third
parties is identical to the duty owed to the patient, i.e., a medical provider
must warn a patient of the attendant risks and effects of any treatment.
Thus, our holding does not hamper the doctor-patient relationship.”).
262 Kirk v. Michael Reese Hosp. and Med. Ctr., 117 Ill.2d 507, 513
N.E.2d 387, 111 Ill.Dec. 944 (1987); Webb v. Jarvis, 575 N.E.2d 992 (Ind.
1991) (based on absence of privity); Kolbe v. State, 661 N.W.2d 142 (Iowa
2003) (suggesting conflict of the physician’s duty to patient and duty to
public); Lester ex rel. Mavrogenis v. Hall, 126 N.M. 404, 970 P.2d 590
(1998) (discussing lack of control, remoteness of injury, “intrusion” upon
the physician’s loyalty to patient, and burden on doctor); Estate of
Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623 (1999) (citing lack of
foreseeability and a fear of absolute liability). The general disposition of
courts to relieve health care practitioners from a duty to third persons in
the absence of special circumstances is consistent with this view. See Dehn
v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005); § 285.
263 Lemon v. Stewart, 111 Md. App. 511, 682 A.2d 1177 (1996)
(AIDS); Seebold v. Prison Health Services, Inc., 57 A.3d 1232 (Pa. 2012)
(doctors had no duty to warn corrections officers that inmates had a
contagious bacterial infection).
264 See, e.g., McNulty v. City of New York, 100 N.Y.2d 227, 792
N.E.2d 162, 762 N.Y.S.2d 12 (2003) (doctor would owe a duty to a non-
patient only if the danger arose from his actual treatment; mere failure to
warn a person who had no particular relation to the patient would not be
actionable).
265 Annual reports from the National Highway Traffic Safety
Administration, available at www.nhtsa. gov, show that about one-third of
all highway traffic deaths are alcohol-related.
266 E.g., Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965),
overruled in Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997);
Wegleitner v. Sattler, 582 N.W.2d 688 (S.D. 1998) (reflecting a legislative
enactment of the traditional view of proximate cause, that drinking, not
serving, is “the” proximate cause); Robinson v. Matt Mary Moran, Inc., 259
Va. 412, 525 S.E.2d 559 (2000). Some courts following the traditional rule
conclude that any decision about liability is best left to the legislature.
Prime v. Beta Gamma Chapter of Pi Kappa Alpha, 47 P.3d 402 (Kan.
2002); Warr v. JMGM Group, LLC, 433 Md. 170, 70 A.3d 347 (2013).
267 See, e.g., Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d
370 (1992) (statute forbidding sale of liquor to incapacitated persons “was
intended to regulate the sale of liquor and was not intended to impose civil
liability”); Robinson v. Matt Mary Moran, Inc., 259 Va. 412, 525 S.E.2d 559
(2000) (violation of regulatory statute not a proximate cause of the harm).
268 Il St Ch 235 § 5/6–21 (liability not limited to serving intoxicated or
minor persons; liability limited to $45,000 for injury, $55,000 for death in
1999, with increases thereafter keyed to consumer price index).
269 See Bauer v. Nesbitt, 198 N.J. 601, 969 A.2d 1122 (2009);
Mazzacano v. Estate of Kinnerman, 197 N.J. 307, 962 A.2d 1103 (2009)
(recognizing that the Dram Shop Act itself creates a negligence claim
against a seller of alcohol); 20801, Inc. v. Parker, 249 S.W.3d 392 (Tex.
2008).
270 See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821
(1959).
271 E.g., Wis. Stat. Ann. § 125.035 (immunizing providers generally
but recognizing liability when the provider knew or should have known he
was providing alcohol to an underage drinker).
272 E.g., Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983);
Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Brigance v. Velvet
Dove Restaurant, Inc., 725 P.2d 300 (Okla. 1986); Sorensen v. Jarvis, 119
Wis.2d 627, 350 N.W.2d 108 (1984). Contra, retaining the traditional
common law rule: Snyder v. Viani, 110 Nev. 1339, 885 P.2d 610 (1994);
Wegleitner v. Sattler, 582 N.W.2d 688 (S.D. 1998). See Joel E. Smith,
Annotation, Common-law Right of Action For Damage Sustained by
Plaintiff in Consequence of Sale or Gift of Intoxicating Liquor or Habit-
forming Drug to Another, 97 A.L.R.3d 528 (1980).
273 Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 661 N.E.2d
627 (1996) (“hand to hand” sale not required, liability for death of non-
purchasing minor); Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666
(Miss. 2001); Schooley v. Pinch’s Deli Market, Inc., 134 Wash.2d 468, 951
P.2d 749 (1998) (similar).
274 Petolicchio v. Santa Cruz County Fair and Rodeo Ass’n, Inc., 177
Ariz. 256, 866 P.2d 1342 (1994) (one minor foreseeably stole from liquor
licensee and foreseeably provided alcohol to driver of car which caused
death of decedent).
275 See Sowinski v. Walker, 198 P.3d 1134 (Alaska 2008); Red Flame,
Inc. v. Martinez, 996 P.2d 540 (Utah 2000).
276 E.g., Flores v. Exprezit! Stores 98-Georgia, LLC, 289 Ga. 466, 713
S.E.2d 368 (2011); Faust v. Alberton, 166 Wash.2d 653, 222 P.3d 1208
(2009). Liability is even easier to find where the alcohol seller actively
increases the risk of drunk driving beyond merely providing the alcohol, as
by encouraging or assisting a drunk patron to drive away. Simmons v.
Homatas, 23 Ill.3d 459, 925 N.E.2d 1089, 338 Ill.Dec. 883 (2010).
277 Cusenbary v. Mortensen, 296 Mont. 25, 987 P.2d 351 (1999).
278 It is enough that the drinker’s behavior, particularly with
automobiles, will be dangerous, even though the specific way in which he
will behave is unpredictable. Cusenbary v. Mortensen, 296 Mont. 25, 987
P.2d 351 (1999) (drinker in wheelchair, upon leaving tavern, drove car
through tavern’s wall).
279 See Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003).
280 Griesenbeck v. Walker, 199 N.J.Super. 132, 488 A.2d 1038 (1985)
(alcohol provider not liable for fire caused by intoxicated smoker).
281 Phan Son Van v. Pena, 990 S.W.2d 751 (Tex. 1999); cf. Kunza v.
Pantze, 531 N.W.2d 839 (Minn. 1995) (intoxicated drinker attacked his
wife, who was injured in trying to escape); Cameron v. Murray, 151
Wash.App. 646, 214 P.3d 150 (2009) (high school student killed by
unidentified, allegedly drunken student at high-school graduation party
for which wholesale beer distributor had provided the alcohol).
282 Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367 (Minn. 2008).
283 Berte v. Bode, 692 N.W.2d 368 (Iowa 2005).
284 See Ellis v. N.G.N. of Tampa, Inc., 586 So.2d 1042 (Fla. 1991);
Nunez v. Carrabba’s Italian Grill, Inc., 448 Mass. 170, 859 N.E.2d 801
(2007); Busby v. Quail Creek Golf & Country Club, 885 P.2d 1326 (Okla.
1994); Fulmer v. Timber Inn Restaurant and Lounge, Inc., 33 Or. 413, 9
P.3d 710 (2000).
285 Panagakos v. Walsh, 434 Mass. 353, 749 N.E.2d 670 (2001) (social
host); Bridges v. Park Place Entertainment, 860 So.2d 811 (Miss. 2003)
(citing many similar cases).
286 Jackson v. PKM Corporation, 430 Mich. 262, 422 N.W.2d 657
(1988); Kirchner v. Shooters on the Water, Inc., 167 Ohio St.3d 708, 856
N.E.2d 1026 (Ct. App. 2006); Tobias v. Sports Club, Inc., 332 S.C. 90, 504
S.E.2d 318 (1998); Langle v. Kurkul, 146 Vt. 513, 5120 A.2d 1301 (1986).
287 See Estate of Kelly v. Falin, 127 Wash.2d 31, 896 P.2d 1245 (1995)
(duty owed to minor drinker, but not to adult drinker). A number of
statutes also draw this distinction. See Doering v. WEA Ins. Group., 193
Wis.2d 118, 532 N.W.2d 432 (1995) (upholding statute’s constitutionality).
288 Estate of Massad ex rel. Wilson v. Granzow, 886 So.2d 1050 (Fla.
Dist. Ct. App. 2004) (no social host liability for furnishing alcohol, but
liability based on the fact that host “took charge” of the guest when he was
helpless); Wakulich v. Mraz, 322 Ill. App. 3d 768, 751 N.E.2d 1, 255 Ill.
Dec. 907 (2000), aff’d, 203 Ill.2d 223, 271 Ill.Dec. 649, 785 N.E.2d 843
(2003) (similar).
289 Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005). However, in the
absence of an undertaking or special relationship, it has been held that
there is no duty to supervise minor guests. Ritchie v. Goodman, 161
S.W.3d 851 (Mo. Ct. App. 2005). Those who provide dangerous drugs may
owe similar duties. Cf. Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228 (2007)
(coworker owed duty of care to decedent not to give her prescription drugs
at an employee party).
290 See Estate of Hernandez v. Arizona Board of Regents, 177 Ariz.
244, 866 P.2d 1330 (1994) (“We perceive little difference in principle
between liability for giving a car to an intoxicated youth and liability for
giving drinks to a youth with a car.”); Huston v. Konieczny, 52 Ohio St. 3d
214, 556 N.E.2d 505 (1990); cf. McGuire v. Curry, 766 N.W.2d 501 (S.D.
2009) (employer/landowner held to owe duty to supervise underage
employee to prevent him from becoming intoxicated at work); contra,
Ritchie v. Goodman, 161 S.W.3d 851(Mo. Ct. App. 2005) (even if
Restatement Second § 318 created a duty in landowner to control guests’
intoxicated driving, precedent defeats the claims of victims on the theory
that the driving-drinker is “the” proximate cause and the host is not). On
negligent entrustment and its variations, see § 26.10.
291 Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984) (adult guest;
superseded in part by statute); Hart v. Ivey, 332 N.C. 299, 420 S.E.2d 174
(1992) (party, minor drinker; ordinarily principles of the negligence case
apply). In some states, a “social host” may be defined as anyone who
provides alcohol gratuitously to another person, even if that consists of
buying drinks for the drinker in commercial establishments. In Delfino v.
Griffo, 150 N.M. 97, 257 P.3d 917 (2011), a state that uses such a
definition, the court held that pharmaceutical representatives who bought
drinks for a person known to be driving could be liable for the death of a
third person killed by the driver, where their provision of drinks to the
driver was reckless.
292 E.g., Burkhart v. Harrod, 110 Wash.2d 381, 755 P.2d 759 (1988) (if
social host liability is to be imposed, it should be done by the legislature).
Where the social host does not actually furnish alcohol, and the guest
brings his own alcohol and consumes it on the premises, the imposition of
a duty seems even less likely. See, e.g., Juliano v. Simpson, 461 Mass. 527,
962 N.E.2d 175 (2012).
293 See, e.g., Wakulich v. Mraz, 322 Ill. App. 3d 768, 751 N.E.2d 1, 255
Ill. Dec. 907 (2000), aff’d, 203 Ill.2d 223, 785 N.E.2d 843, 271 Ill. Dec. 649
(2003) (men who induced a 16-year-old young woman to drink a full quart
of 80-proof alcohol were merely social hosts with no duty to help prevent
her death).
294 Sampson v. MacDougall, 60 Mass. App. Ct. 394, 802 N.E.2d 602
(2004) (recognizing potential liability to third persons but rejecting
liability to adult guest himself, even though guest was underage).
295 D’Amico v. Christie, 71 N.Y.2d 76, 518 N.E.2d 896, 524 N.Y.S.2d 1,
62 A.L.R.4th 1 (1987); Willis v. Omar, 954 A.2d 126 (R.I. 2008); Carson v.
Adgar, 326 S.C. 212, 486 S.E.2d 3(1997) (“a social host incurs no common
law liability to a third party when he serves alcohol to his adult guests”);
Smith v. Merritt, 940 S.W.2d 602 (Tex. 1997) (adult drinker injured third
party, no liability for serving alcohol to adult). See Edward L. Raymond,
Jr., Annotation, Social Host’s Liability For Injuries Incurred by Third
Parties as a Result of Intoxicated Guest’s Negligence, 62 A.L.R.4th 16
(1989).
296 See Marcum v. Bowdens, 372 S.C. 452, 643 S.E.2d 85 (2007) (“An
adult social host who knowingly and intentionally serves, or causes to be
served, an alcoholic beverage to a person he knows or reasonably should
know is between the ages of 18 and 20 is liable to the person served and to
any other person for damages proximately resulting from the host’s service
of alcohol.”); see also, e.g., Ah Mook Sang v. Clark, 130 Hawai’i 282, 308
P.3d 911 (2013); Martin v. Marciano, 871 A.2d 911 (R.I. 2005).
297 See, e.g., Wis. Stat. Ann. § 125.035(2) & (4)(b); see Ennabe v.
Manosa, 58 Cal.4th 697, 168 Cal.Rptr.3d 440, 319 P.3d 201 (2014) (social
host who “sells” alcohol to minor may be liable under statute; charging a
fee for a party may constitute “sale”); Rust v. Reyer, 91 N.Y.2d 355, 693
N.E.2d 1074, 670 N.Y.S. 2d 822 (1998) (facts alleged would support social-
host liability under statute where host gave permission to have “keg party”
at her house, provided storage for the kegs, and negotiated free beer for
herself).
298 E.g., Bankston v. Brennan, 507 So.2d 1385 (Fla. 1987); Bell v.
Hutsell, 2011 IL 110724, 353 Ill. Dec. 288, 955 N.E.2d 1099 (2011); Andres
v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. 1987); Reeder v.
Daniel, 61 S.W.3d 359 (Tex. 2001). See also Diane Schmauder Kane,
Annotation, Social Host’s Liability for Death or Injuries Incurred by
Person to Whom Alcohol Was Served, 54 A.L.R.5th 313. The host may still
be liable for intentional or reckless conduct.
299 Compare Ferreira v. Strack, 652 A.2d 965 (R.I. 1995) (no liability
to third person) with Martin v. Marciano, 871 A.2d 911 (R.I. 2005)
(liability to minor guest injured through another guest’s intoxicated
attack); and Reynolds v. Hicks, 134 Wash.2d 491, 951 P.2d 761(1998) (no
liability to third person) with Hansen v. Friend, 118 Wash.2d 476, 824
P.2d 483 (1992) (liability for wrongful death of minor resulting from
provision of alcohol by social host).
300 See Sampson v. MacDougall, 60 Mass. App. Ct. 394, 802 N.E.2d
602 (2004).
301 E.g., Ariz. Rev. Stat. § 4–311 (recognizing liability of liquor
licensee for dispensing to intoxicated persons and minors).
302 Ballard v. Hazel’s Blue Sky, 653 N.W.2d 609 (Iowa 2002) (holding
that statute preempted a common law claim for loss of consortium by
parents of a deceased teenaged bar patron); D’Amico v. Christie, 71 N.Y.2d
76, 518 N.E.2d 896, 524 N.Y.S.2d 1, 62 A.L.R.4th 1 (1987) (“As an
exception to the common law, the statute must of course be construed
narrowly.”). The statute itself may so provide. See Tex. Alc. Bev. Code
Ann. § 2.03.
303 E.g., Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980) (where
sale is reckless or wanton); Nunez v. Carrabba’s Italian Grill, Inc., 448
Mass. 170, 859 N.E.2d 801 (2007) (dram shop act does not limit liability
where sale is to an underage person). The statute itself may so provide, as
in Minn. Stat. Ann. § 340A.801.
304 Ariz. Rev. Stat. § 4–301; Cal. Civ. Code § 1714.
305 N. J. Stat. Ann. § 2A:15–5.7.
306 Ga. Code Ann. § 51–1–40.
307 N.J. Stat. Ann. § 2A:15–5.8.
308 Cal. Bus. & Prof. Code §§ 25602 & 25602.1. In Ennabe v. Manosa,
58 Cal.4th 697, 168 Cal.Rptr.3d 440, 319 P.3d 201 (2014), the court held
that a social host can be liable under this statutory provision, reasoning
that the word “sold” does not require commercial gain; thus a cover charge
at a party can fit the statutory definition.
667
Part V
SPECIAL TYPES OF HARM

669
Chapter 27
PRENATAL AND BIRTH-RELATED

INJURY
Analysis
A. PRENATAL OR PRECONCEPTION INJURY
B. WRONGFUL BIRTH, CONCEPTION OR LIFE
§ 27.4 Negligent Interference with Mother’s Opportunity to Avoid or
Terminate a Pregnancy
__________
A. PRENATAL OR PRECONCEPTION INJURY

The Traditional Rule and Its Demise
The early no-duty rule. Until about the middle of the 20th
century, in the United States, a tortfeasor whose impact upon a
pregnant woman resulted in harm to the later-born child was
protected against liability. Expressed in terms of duty, the
tortfeasor owed a duty to the mother, but not to the child. One
reason was that the causal connection was difficult to trace. The
other was the purely formal argument that the fetus was not a
person to whom any duty could be owed.1
Rejection of the rule. The causal argument justifies scrutiny of
causal proof, which depends upon facts and evidence; but it does
not justify a flat rule that prohibits the very proof that would
establish causation in particular cases. The formal argument,
bereft of either policy or human concern, was just as inadequate if
not worse. Both arguments were rejected in 1946 in Bonbrest v.
Kotz,2 after which courts reversed course. They now universally
hold that no one is to be denied compensation for injury merely
because the harm was inflicted before that person’s birth.3 So long
as the living plaintiff can prove the elements of a tort claim, the
fact that the harm was initially done to a pre-viable fetus does not
defeat the claim.4
670
Wrongful Death Cases

Death claim issues. Death claims for loss of a fetus or for loss of
a child injured before birth are more complicated, partly because of
the way damages are calculated in death actions, partly because
death statutes require the “death” of a “person,” and partly because
other means may be available to redress the loss to parents. In
determining whether injury to a fetus was followed by “death of a
person”5 as required by statute, courts have considered two
potentially critical questions: (1) Was the fetus viable at the time of
injury or at least sometime before stillbirth? (2) Was the child born
alive, with death occurring at some moment after birth?
Fetus not born alive. Some states reject the action altogether in
the absence of a live birth.6 The effect of this rule is that if the
defendant does enough damage to terminate the life of the fetus
before birth, he simply is not liable in a death action. Another
group of states rejects the wrongful death action in the absence of a
live birth, but permits the mother or parents to recover for mental
anguish or emotional harm.7 Most courts, however, now recognize
that an action lies for wrongful death of a stillborn infant or of a
fetus not born alive, at least where the fetus was viable at the time
or injury8 or became viable before stillbirth.9
Born alive after pre-viable injury. A different pattern occurs if
the fetus is injured before viability, but the child is then born alive.
In that case, the child could maintain a personal injury action if it
lived, so there seems no objection to a wrongful death claim if the
born-alive child dies. A few courts have insisted that viability at
injury is also essential to any action.10 If the reality of a tort-
caused loss is the essential question, then this view may be too
restrictive. Perhaps, as some authority holds, either (a) viability at
time of injury or (b) live birth (with later death) should suffice as a
basis for liability.11 Consistent with this view, some courts have
allowed the claim to proceed if the child is born alive, whether or
not injury occurred before the fetus was viable.12
671
Neither viability at injury nor live birth. The most extreme case
occurs when injury is inflicted before viability and no live birth
occurs. Most courts reject liability in such cases.13 From one
viewpoint, the defendant should not escape liability merely because
his acts occurred early rather than late in fetal development, much
less because the harm was sufficient to terminate life before birth
occurred. With some such view in mind, a few recent decisions
have allowed recovery in this situation.14 This might open the door
to wrongful death claims when the mother was pregnant for only a
week or a day, or possibly even for a claim of death if an egg
fertilized in vitro is destroyed before it is ever implanted in the
mother, although the latter claim has been expressly rejected.15
Tortfeasor’s negligence caused need for therapeutic abortion. A
particularly difficult issue is when the fetus is not born alive
because the mother terminated the pregnancy due to harms caused
by the tortfeasor. In one wrongful death case, Williams v.
Manchester, the defendant driver collided with the mother, who
was severely injured in the accident. Her treatment required x-
rays which would expose the fetus to radiation and risk of harm. In
addition the mother faced increased risks to her own health if she
did not terminate the pregnancy and have immediate pelvic
surgery. When she elected to terminate the pregnancy in light of
the increased risks to the fetus and herself, the court held that the
“voluntary” nature of the termination barred her wrongful death
recovery. However, her emotional distress claim was not barred.16
The result in Williams seems contrary to many comparative fault
and minimizing damages cases which hold that the negligent
defendant cannot defend its negligence by claiming that the
pregnant woman’s post-negligence choice (to carry the pregnancy
to term) was inappropriate.17 Often wrongful death claims in
which the mother elected to terminate the pregnancy are deeply
embroiled with debates over abortion.18
What is and is not important. Courts have sometimes
emphasized viability of the fetus for purely formal or conceptual
reasons that are quite divorced from the purposes of tort law. The
idea is that until the fetus is viable, there is no “person” apart from
the mother. Any harm done is harm to the mother. In personal
injury cases, however, that argument misses the point entirely.
Whatever may have been the case when injury was inflicted, it set
in motion a chain of events that caused injury to a living and
suffering human being. Both compensation and deterrence goals of
tort law counsel a rule allowing the child to recover for the tort in
personal injury cases and one allowing the parents, or at least the
mother, to recover when the fetus does not survive or the child dies
of the
672
injury. The status of the fetus at the time of injury has no

bearing on the status of the plaintiff, who is a living human being,
harmed by the defendant’s torts.
Form of recovery. It is not necessarily so, however, that
wrongful death actions represent the best way to redress the real
loss suffered by the parents. The losses are not much like those at
which the traditional death statute was aimed—the loss of
pecuniary advantage. Instead, the losses are usually emotional and
intangible. An action for emotional harm to parents may be a more
manageable and suitable form of redress and may also provide a
vehicle for deterrence.
Fetal Toxic Harm Cases
Toxic exposures. While traditional fetal injury claims were
usually based on physical impact upon the mother, as in
automobile collision cases and simple falls,19 most fetal harms
today are likely to be the result of licit and illicit drugs,
environmental toxins, workplace exposures, or contaminants in
water or food. Courts are now facing claims of fetal injury from
some such exposures and no doubt more will follow.
Difficult proof of causation. Toxic torts frequently involve low
dosages over time, often with a long latency period before harm
appears. Unlike an automobile accident, a medical mishap, or a
punch in the nose, no one can see the toxic tort happen. A fetus
may be peculiarly susceptible to some toxins which can pass from
the mother directly to the fetus.20 But in the case of fetal injuries,
many toxic injuries can be inflicted that are not dramatic enough
to be identified immediately or with certainty by the use of existing
technology. Studies may show, for example, that carbon monoxide,
a well-known danger, is harmful to the fetus, but they may be
inconclusive about the nature of the harms when exposure is not
great.21 Some effects remain hidden because they operate on the
central nervous system of the fetus and leave behind intelligence
and learning ability deficits rather than distorted appendages or
chemicals in the urine. For instance, even a mother’s moderate
ingestion of alcohol during pregnancy may lead to substantial
deficits in her child’s learning ability,22 but unless the child is a
part of a scientific study, her lifelong learning difficulties may
never be understood, much less attributed to her mother’s
drinking. The same seems to be true if the mother is exposed to
lead.23 For these and associated reasons, lawyers will find it quite
difficult—and very expensive—to
673
prove scientific causation.24 Many authors have proposed rules

to make the road easier for the toxic plaintiff,25 even as others
propose to tighten causal rules to provide more protection for
defendants.26
Workplace Injury to Fetus and the Workers’ Compensation
Limit
Workers’ compensation no bar. When the fetus is exposed to
hazardous materials because of the mother’s or father’s exposure in
the workplace, workers’ compensation laws are potentially
implicated. Those laws generally provide for standardized
compensation to workers injured on the job as the exclusive
remedy; tort claims are forbidden. When a child asserts a claim
that she was injured in utero by her mother’s exposure to
hazardous materials on the mother’s job, the question is whether
the child’s claim in tort should be barred by the workers’
compensation rules. The answer in the handful of cases on point
has uniformly been that the claim is not barred by the workers’
compensation exclusive remedy rules.27
Employer negligence. To eliminate the exclusive remedy rule is
not to impose liability upon employers for fetal injury. The child,
like anyone else claiming tort damages against the employer, will
be required to show negligence or, possibly, abnormally dangerous
activities. The fact that an employer’s business uses dangerous
chemicals does not necessarily mean that the employer is
negligent. Only if dangerous chemicals are unnecessary or if
feasible precautions against injury are ignored, is negligence
established. In addition, federal antidiscrimination law requires
employers to allow women equal access to jobs, including jobs that
may endanger a fetus.28 If the employer’s only supposed negligence
is in permitting a fully informed pregnant woman to work around
dangerous materials, the federal antidiscrimination rule probably
protects the employer against tort liability.29
674
Father’s exposure. Workplace exposure of the father may also

cause fetal harm. Besides the possibility of chromosome damage by
radiation,30 some studies, still at the early stage, indicate that fetal
harm or anomalies are often associated positively with the father’s
occupation.31 The hypothesis is that toxic agents associated with
particular occupations may affect chromosome structure, or that
the father may inadvertently carry home toxins on his body or in
his clothes, exposing the mother during pregnancy. As with so
many potential claims of toxic harm, however, proof of causation
may have to await further study.
Product and Environmental Injuries to Fetus
Exposures. A number of substances in the environment or in
products may cause fetal harm. Lead is famously dangerous to a
developing fetus as well as to children.32 Second-hand smoke is
probably a toxin to the fetus.33 Some prescription drugs can
damage the fetus, and even kill the child.34 In such a case, if
exposure is demonstrated and harm results, liability may be
established.35 As already indicated, however, proof of causation
has failed in many claims for prenatal injury against
pharmaceutical manufacturers, either on the ground that the
evidence of experts was insufficient or on the ground that it was
inadmissible altogether as insufficiently accepted among
scientists.36
Parents’ Duty to Fetus
Parents’ exposures and fetal harm. A father whose genetic
material is injured may pass along serious birth defects from the
moment of conception. A mother may intentionally or
unintentionally ingest alcohol—the “teratogen of choice” one
authority called it37—or harmful agents such as cocaine or lead.
Use of these and other drugs in
675
pregnancy is quite common and cuts across social and racial
lines.38 Some, perhaps all, of those and other ingested substances
may harm the fetus and permanently damage the child. If parents
are not protected by an immunity,39 the question is whether a child
has a good claim against her own mother or father for fetal injuries
of this kind.
A parent’s duty? Few cases deal with the parents’ duty to the
fetus. In non-toxic cases, one claim consistently denied is the claim
for dissatisfied life brought by a child against a parent for causing
his birth as an illegitimate child.40 At least two courts in
automobile accident cases refused to entertain a child’s action
against the mother based upon the mother’s negligent driving
during pregnancy.41 Other courts in automobile cases have held
that the mother owed reasonable care to a child once it was born,
therefore a duty of care should be imposed for the fetus as well.42
The argument against liability seems most significantly addressed
to cases involving the mother’s use of substances that could harm
the fetus. Liability in substance abuse cases, which could include
excessive consumption of coffee or use of tobacco, might conflict
with the mother’s right of autonomy, bodily integrity, and privacy.
Where mother’s ingestion is involved, it is plausible to argue that
the mother’s legal, but dangerous, activities like smoking would
entail too much of an intrusion on autonomy. A Texas court has
rejected any duty by a pregnant woman that would impose liability
for illegal ingestion of cocaine during pregnancy.43 So far one
substance-ingestion case actually recognized a potential liability,
but it did not discuss the central issue of the mother’s own rights,
and its authority is clouded by later decisions.44 Although the
mother-autonomy reasons that animate substance abuse cases do
not obviously apply to auto cases, at least one court thought that
even a rule permitting the liability of a mother to a child born
injured because of the mother’s negligent driving would be a
dangerous precedent.45 The problem of a mother’s potential
responsibility for treatment of her own body, or her fetus mirrors
the problem much-debated in the criminal field.46
Preconception negligence. When the plaintiff is injured by
negligent acts that occur before the plaintiff was conceived, courts
are somewhat divided.47 Such injuries have
676
occurred in several ways. For example, the defendant might

damage genetic material of either parent before the plaintiff was
conceived, with resulting genetic defects in the plaintiff once
conception and birth took place.48 Or the defendant may
negligently harm the mother before conception, resulting in oxygen
deprivation of the fetus much later49 or early termination of
pregnancy and damage to the child.50 Or health care providers,
acting before the plaintiff’s conception, may negligently fail to
prevent development of antibodies in the mother that would
damage the fetus once conception occurs.51
Duty of care. About a dozen cases have passed on the
defendant’s duty when the plaintiff had not been conceived at the
time the defendant acted. Most of them expressly or implicitly
recognize that the ordinary duty of care does not disappear merely
because the child was not conceived at the time of the defendant’s
negligent conduct. In an analogous situation, if the defendant
negligently constructs a balcony so that two years later it falls
upon a one year-old child, no one believes that the child should be
denied recovery on the ground that she was not in existence when
the defendant’s negligent acts took place.52 The defendant will be
held liable for foreseeable harms he causes to the later-conceived
child.53 Some other courts, seemingly receptive to the claim, have
left the matter open.54 Most of these cases that recognize a duty of
care to an unconceived child are in fact suits against health care
professionals who are engaged in treating the mother and who at
least implicitly undertake to provide appropriate care for the child
as well.55
It is possible to imagine that a drug needed by the mother
might be harmful to either a fetus already carried or one that
might be carried in the future, but a conflict like that is not limited
to preconception duties and in any event is usually resolved by
giving the mother full information and allowing her to make the
choice.56
677
While a blanket rule in favor of a duty of care fits well with the
usual tort rules—liability for negligence is the norm—courts can
find plenty of room to shape duties to their sense of policy and
justice without barring all cases.57
B. WRONGFUL BIRTH, CONCEPTION OR LIFE
§ 27.4 Negligent Interference with Mother’s
Opportunity to Avoid or Terminate a
Pregnancy
Causes of action. Claims for interference with a mother’s
opportunity to avoid pregnancy, or to terminate it, have taken
three distinct forms.58 All three forms have in common the
assertion that, but for the defendant’s negligence, the mother could
have avoided giving birth to a child who is either unwanted or who
suffers painful birth defects. The claim is typically brought against
a physician with the allegation that the physician negligently
failed to perform a birth control surgery, or that the physician
negligently failed to inform the mother that she was carrying a
child with genetic defects, and that, but for the physician’s
negligence, the mother would have avoided giving birth to the
child. As in other medical malpractice cases, the plaintiff must
prove that the physician was negligent in violating a medical
standard of care or a governing statute or regulation.59
The three kinds of claims are usually labeled differently,
although some authority discards the labels, emphasizing that the
claim is merely a negligence claim subject to the ordinary
negligence rules.60 The labels are used here for convenience in
identifying the various claims.
Wrongful life. The wrongful life claim is one asserted by a child
suffering birth defects such as a painful and debilitating disease.
The claim is definitely not that the physician caused the disease or
defect. It is rather that the physician negligently allowed the child
to be born at all and that the child has a claim for the suffering he
must undergo as a result. Most courts reject this claim
altogether,61 partly because they are unwilling to say that life itself
is harm, or that compensation can be measured for the harm of
living as compared to never having lived at all.62
Recoveries. A few courts have allowed the child to recover on
wrongful life claims. These have largely limited the child to
recovery for medical expenses.63 The wrongful life
678
claim permits recovery of the extraordinary expenses for the

child’s entire life expectancy.64
Wrongful birth. The wrongful birth claim is asserted by the
parent, not the child. The mother typically claims that, but for the
defendant’s negligence in testing65 or counseling,66 the mother
would have terminated a pregnancy to avoid birth of a child with
serious genetic defects. The claim was initially rejected in 1967,67
but since a mother’s constitutional right to an early-term abortion
was recognized,68 almost all of the courts considering the question
have allowed some kind of recovery in these cases.69 One court has
even held that it would violate its public policy to apply the state
law rules of a state that does not recognize such a claim.70 A
wrongful birth claim is typically asserted by the mother. Whether a
father also has a claim is the subject of differing views.71 In at
least one instance, siblings sought recovery, which was rejected.72
A case closely analogous to wrongful birth cases arises when an
adoption agency negligently or fraudulently places a child with a
genetic illness with adoptive parents, who learn only much later of
the difficulty and the expense. Consistent with the wrongful birth
cases, courts here again allow parental recovery.73
The wrongful birth claim can be viewed as a species of an
informed consent claim, protecting essential values of individual
choice, autonomy, and self-determination. But there is a difference
of sorts. The wrongful birth plaintiff does not recover for the
genetic
679
defect itself but for the loss of the choice to terminate the
pregnancy and the damages that flow from that loss. It has been
held enough, therefore, if the plaintiff proves that given
appropriate testing and information,74 she would have terminated
the pregnancy, even if the genetic harm to the child arose from
risks separate from those of which she should have been warned.75
Rejecting the claim. A small number of courts has denied the
wrongful birth claim on the assertion that existence of human life
cannot be permitted to count as legal damages,76 or on the ground
that parents would be tempted to perjure themselves to establish
their willingness to terminate the pregnancy.77 In addition, some
states have passed statutes as anti-abortion legislation.78 These
statutes, where constitutional,79 curtail or eliminate the wrongful
birth action.80 Some advocates for the disabled also dislike the
wrongful birth action because it perpetuates the “disability
hierarchy” of values in which the disabled are regarded as worth
less.81
Wrongful conception or pregnancy. The claim for wrongful
pregnancy or conception typically asserts that the defendant
physician was negligent in giving genetic advice82
680
or performing a medical procedure or dispensing contraceptives

to prevent conception83 and that as a result the mother bore a
child, with the added expense of child rearing. If the medical
procedure is, like a vasectomy, performed upon the husband rather
than the wife, there is the striking possibility that the wife would
be a non-patient to whom no duty was owed.84
The claim differs from wrongful birth in two important respects.
First, it does not rest on a claim that the mother had a right to
terminate her pregnancy.85 The claim thus escapes the bar of those
statutes that prohibit suits based upon the mother’s loss of
opportunity for an abortion.86 Perhaps partly for this reason, some
of the few courts that reject the wrongful birth action actively
support the wrongful pregnancy claim.87
The wrongful pregnancy claim also differs from the wrongful
birth claim because it does not necessarily involve an unhealthy or
genetically damaged child. Instead, the mother or the parents had
decided against enlarging the family for personal or economic
reasons. One or two states reject the wrongful pregnancy action
altogether.88 The great majority now recognize the claim,89 but
subject it to some unusual limitations on damages recoverable
discussed in the next section.
Damage rules. Although wrongful birth and wrongful pregnancy
claims are accepted in most courts, they are often limited by
unusual damages rules. The normal compensatory damages rules
would award damages for emotional harm and economic costs
inflicted by the tort. In the case of wrongful birth or pregnancy,
that would mean a recovery for emotional harm to the mother, and
perhaps to the father, and also the costs of rearing the child—two
harms that would have been avoided if the physician had not been
negligent. Courts have been struck, however, by the idea that a
child, healthy or not, would give the parents pleasure and that the
parents’ putative pleasure should be
681
taken into account.90 The result has been a series of special
rules that do not comport with ordinary rules of damages.
Damages in Wrongful Birth Claims Generally
Expenses of child rearing. Where the claim for wrongful birth is
recognized, most courts allow recovery of some, but usually not all
the child-rearing expenses that would have been avoided by a
timely termination of the pregnancy.91 The same rule has been
applied to claims based upon an adoption agency’s
misrepresentations of a prospective adoptive child’s health.92 The
cases usually permit recovery of less than all of the costs inflicted
by the tort by limiting the recovery to the “extraordinary”
expenses, those over and above the ordinary expenses of child
rearing.93 A few courts have rejected the extraordinary expenses
limitation.94 A few courts have also limited the recovery to the
costs of rearing the child to the age of majority.95 Another view
permits recovery only for costs of the continuation of the pregnancy
and rejects all costs of treating and rearing the child.96
Emotional harm. Some courts take the rather straightforward
view that harms count as personal injury and allow recovery of
emotional harm for both parents, or at least for the mother.97
Varied cases permit this recovery.98 However, other courts have
been unwilling to permit emotional harm damages at all.99
Damages in Wrongful Pregnancy or Conception Generally
Child rearing expenses. Wrongful pregnancy cases are usually
based upon failed sterilization procedures intended to prevent
conception. Most courts have disallowed recovery for cost of rearing
a healthy child.100 Although the financial and sometimes
682
emotional costs of child rearing can be enormous, some courts

say it is no injury, even though the parents sought to avoid those
costs by employing the defendant.101 The “no injury” assertion is,
in reality a way of asserting a judicially created policy.102
A few courts in important decisions have allowed the jury to
award child-rearing costs, at least where the parents sought to
avoid having children in part for economic reasons.103 However,
even many of these more liberal courts may reduce the award by
imposing offsets.
Emotional and other damages. In the wrongful pregnancy or
conception cases, courts have allowed recovery for the mother’s
pain in delivery of the child and emotional distress at having an
unplanned, unwanted, or unaffordable child,104 the expenses of the
negligently performed pregnancy-avoidance procedure,105 or the
cost of repeating the procedure later,106 pregnancy-related medical
expenses, including wages lost because of pregnancy or delivery,107
and expenses or wages lost in the post-natal period in appropriate
cases.108 The father is entitled to recover for loss of consortium.109
Perhaps most courts allow recovery of emotional distress
damages,110 but predictably enough, some courts have refused to
permit any emotional distress recovery at all,111 or have limited
the recovery of all forms of pain and suffering, including emotional
harm, to the period of time from discovery of pregnancy until
recovery from childbirth.112
Almost all of the limitations on the damages recovery in
wrongful birth and wrongful pregnancy actions113 are derived in
part from the idea that if the parents suffer economic and
emotional harm as a result of having a child, they also gain
offsetting benefits which should somehow be taken into account.
Avoidable Consequences—“Mitigation” of Damages
Abortion not required. The avoidable consequences rule
excludes recovery for any damages that could have been reasonably
avoided by the plaintiff.114 This rule has raised the question
whether a plaintiff suffering from an unwanted pregnancy as the
result of the defendant’s negligence must seek an abortion to
minimize damages. Although courts
683
have sometimes played with the idea as an argument for

severely limiting the claim or denying it altogether, almost no
court seems to have actually applied such an idea.115 As the
Tennessee Court observed, any such requirement might “infringe
upon Constitutional rights to privacy in these matters,” and in
addition would fail the reasonableness test which is built into the
avoidable consequences rule.116
Adoption not required. In wrongful birth cases, the nature of the
case is that there is no opportunity for terminating the pregnancy,
but there remains the possibility, also open in wrongful pregnancy
cases, that damages could be minimized by relinquishing the child
for adoption. Relinquishment might indeed work a sound economic
result, but the tort is not exclusively an economic tort. The
defendant, having deprived the mother of one choice, has no right
to force upon her another choice she does not want to make. With
these ideas in mind, it seems unlikely that courts will require a
mother to give up her legitimate claim or her child, one or the
other.
________________________________
1 Dietrich v. Northhampton, 138 Mass. 14 (1884) (emphasizing lack
of personhood at the time of injury), abrogation recognized by Angelini v.
OMD Corp., 575 N.E.2d 41 (Mass. 1991).
2 Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946). The dissent of
Justice Boggs in Allaire v. St. Luke’s Hosp., 184 Ill. 359, 56 N.E. 638
(1900), presaged this shift, as did the Canadian decision in Montreal
Tramways v. Leveille, [1933] 4 D.L.R. 337 (Sup. Ct. 1933).
3 E.g., Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953); Woods
v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250 (1951); Sinkler
v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960); Restatement Second of Torts §
869(1) (1979). The reversal was complete by about 1972. See Huskey v.
Smith, 289 Ala. 52, 265 So.2d 596 (1972); Roland F. Chase, Annotation,
Liability for Prenatal Injuries, 40 A.L.R.3d 1222 (1972).
4 Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966) (“we are
unable logically to conclude that a claim for an injury inflicted prior to
viability is any less meritorious than one sustained after…. With us the
test will not be viability but causation”). As to harm inflicted before
conception, however, see § 27.3.
5 E.g., Miccolis v. Amica Mut. Ins. Co., 587 A.2d 67 (R.I. 1991).
6 Peters v. Hospital Auth. of Elbert County, 265 Ga. 487, 458 S.E.2d
628 (1995); Shaw v. Jendzejec, 717 A.2d 367 (Me. 1998). Arkansas
originally rejected the claim in Chatelain v. Kelley, 322 Ark. 517, 910
S.W.2d 215 (1995), but in Aka v. Jefferson Hosp. Ass’n, Inc., 344 Ark. 627,
42 S.W.3d 508 (2001), that case was overruled on the ground that an
antiabortion amendment to the state’s constitution expressed a policy of
protecting the life of unborn children to the extent permitted by federal
law.
7 Tanner v. Hartog, 696 So.2d 705 (Fla. 1997); Smith v. Borello, 370
Md. 227, 804 A.2d 1151 (2002); Giardina v. Bennett, 111 N.J. 412, 545
A.2d 139 (1988); Krishnan v. Sepulveda, 916 S.W.2d 478 (Tex. 1995). Cf.
Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002); Jeter v. Mayo Clinic Ariz.,
211 Ariz. 386, 121 P.3d 1256 (2005) (wrongful death claim rejected for
defendant’s loss of pre-implantation, fertilized and cryo-preserved ova, but
recognizing a damages claim based on negligent loss, leaving open the
question whether emotional harm would be a recoverable item of
damages); Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011) (special
bystander rule allowed recovery where mother was neither harmed nor
sufferd a physical impact).
8 Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712
(1985); Shelton v. DeWitte, 271 Kan. 831, 26 P.3d 650 (2001); Moen v.
Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975) (death action); Cavazos v.
Franklin, 73 Wash.App. 116, 867 P.2d 674 (1994) (survival action
permitted). See Sheldon R. Shapiro, Annotation, Right to Maintain Action
or to Recover Damages For Death of Unborn Child, 84 A.L.R.3d 411
(1978). Parvin v. Dean, 7 S.W.2d 264 (Tex. App. 1999), held that it would
be unconstitutional to deny recovery for injury to a viable child who was
stillborn.
9 See Pino v. United States, 183 P.3d 1001 (Okla.2008); Nealis v.
Baird, 996 P.2d 438 (Okla. 1999).
10 Miller v. Kirk, 120 N.M. 654, 905 P.2d 194 (1995).
11 McKinstry v. Valley Obstetrics-Gynecology Clinic, 428 Mich. 167,
405 N.W.2d 88 (1987); Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600 (1993).
12 Kalafut v. Gruver, 239 Va. 278, 389 S.E.2d 681 (1990); Miccolis v.
Amica Mut. Ins. Co., 587 A.2d 67 (R.I. 1991); Gonzales v. Mascarenas, 190
P.3d 826 (Colo. Ct. App. 2008) (when child is born alive, viability does not
matter).
13 See Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993); Crosby
v. Glasscock Trucking Co., Inc., 340 S.C. 626, 532 S.E.2d 856 (2000); Baum
v. Burrington, 119 Wash.App. 36, 79 P.3d 456 (2003).
14 Mack v. Carmack, 79 So. 3d 597 (Ala. 2011) (Wrongful Death Act
permits an action for the death of a previable fetus); Wiersma v. Maple
Leaf Farms, 543 N.W.2d 787 (S.D.1996); Carranza v. U.S., 267 P.3d 912
(Utah 2011) (wrongful death statute, as it existed before recent
amendments, permitted an action for the death of unborn child; reporting
that 36 other states have recognized a cause of action for the wrongful
death of an unborn child, and three others have recognized a cause of
action for the wrongful death of an unborn child, beginning at conception);
Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522 (1995) (emphasizing,
however, that the decision did not necessarily apply to cases of conception
outside the mother’s body). Some of the cases are based upon construction
of the statute.
15 Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 121 P.3d 1256 (2005)
(rejecting the wrongful death claim on viability grounds but also
recognizing a negligence claim for the defendant’s loss of the fertilized
cryo-preserved cells).
16 Williams v. Manchester, 228 Ill.2d 404, 888 N.E.2d 1 (2008).
17 See § 16.6.
18 See Acuna v. Turkish, 192 N.J. 399, 930 A.2d 416 (2007).
19 E.g., Cushing v. Time Saver Stores, Inc., 552 So.2d 730 (La. Ct.
App. 1989) (brain damage to child resulting from fetal impact that caused
abruption of the placenta).
20 A good introduction to the methods by which prenatal toxic harm
can occur is Steven S. Paskal, Liability for Prenatal Harm in the
Workplace: the Need for Reform, 17 U. Puget Sound L. Rev. 283 (1994).
Many potential toxic agents are described in various articles in Gideon
Koren (Ed.), Maternal-Fetal Toxicology: A Clinician’s Guide (2d ed. 1994);
see also Sam Kacew & George H. Lambert, Environmental Toxicology and
Pharmacology of Human Development (1997).
21 The difficulties of producing a conclusive carbon monoxide study
are summarized, along with limited conclusions, in Gideon Koren, Teresa
Sharav & Anne Pastuszak, A Multicenter, Prospective Study of Fetal
Outcome Following Accidental Carbon Monoxide Poisoning in Pregnancy,
in Gideon Koren, supra n. 20, at 253.
22 See Ann Pytkowicz Streissguth, Paul D. Sampson, Helen M. Barr,
Fred L. Bookstein & Heather Carmichael Olson, The Effects of Prenatal
Exposure to Alcohol and Tobacco: Contributions from the Seattle
Longitudinal Prospective Student and Implications for Public Policy, in
Herbert L. Needleman & David Belligener, Prenatal Exposure to
Toxicants—Developmental Consequences 148 (1994). Possibly the father’s
use of alcohol too. See Gladys Friedler, Developmental Toxicology: Male-
mediated Effects, in Maureen Paul, Occupational and Environmental
Reproductive Hazards, a Guide for Clinicians 52 (1993).
23 See David Bellinger & Herbert L. Needleman, The Neurotoxicity
of Prenatal Exposures to Lead: Kinetics, Mechanisms and Expressions, in
Herbert L. Needleman & David Bellinger, Prenatal Exposure to Toxicants
—Developmental Consequences 89 (1994).
24 Mass studies showing an increased risk of harm to fetuses from
particular substances may still fall short. A good illustration is Turpin v.
Merrell Dow Pharms., Inc., 959 F.2d 1349 (6th Cir. 1992). Limitations
imposed upon “scientific” testimony in Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), may add to the
difficulty. See generally Michael Green, Expert Witnesses and Sufficiency
of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange
and Bendectin Litigation, 86 Nw. U. L. Rev. 643 (1992). D.H. Kaye, Is
Proof of Statistical Significance Relevant?, 61 Wash. L. Rev. 1333 (1986);
Neil B. Cohen, Confidence in Probability: Burdens of Persuasion in a
World of Imperfect Knowledge, 60 N.Y.U. L. Rev. 385 (1985).
25 Thus some advocate changes in the requirements of causal
evidence in toxic tort cases, see Margaret A. Berger, Eliminating General
Causation: Notes Towards a New Theory of Justice and Toxic Torts, 97
Colum. L. Rev. 2117 (1997), while others advocate changes in regulation
and compensation systems. See Anita Bernstein, Formed by Thalidomide:
Mass Torts as a False Cure For Toxic Exposure, 97 Colum. L. Rev. 2153
(1997).
26 See James A. Henderson & Theodore Eisenberg, The Quiet
Revolution in Products Liability: An Empirical Study of Legal Change, 37
UCLA L. Rev. 479 (1990). Professor Boston proposed a demanding
standard for mass tort cases, less for individualized injuries. Gerald W.
Boston, A Mass-Exposure Model of Toxic Causation: the Content of
Scientific Proof and the Regulatory Experience, 18 Colum. J. Envtl. L. 181
(1993).
27 Namislo v. Akzo Chems., Inc., 620 So.2d 573 (Ala. 1993); Snyder v.
Michael’s Stores, Inc., 16 Cal.4th 991, 945 P.2d 781, 68 Cal.Rptr.2d 476
(1997); Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97 (Colo. 1995); Hitachi
Chem. Electro-Products, Inc. v. Burley, 219 Ga.App. 675, 466 S.E.2d 867
(1995). See also Meyer v. Burger King Corp., 26 P.3d 925 (Wash. 2001).
28 United Auto. Workers v. Johnson Controls, Inc., 499 U.S. 187, 111
S.Ct. 1196, 113 L.Ed.2d 158 (1991).
29 Id.
30 As claimed in cases like Hinkie v. United States, 715 F.2d 96 (3d
Cir. 1983) (exposure to radioactivity); Mondelli v. United States, 711 F.2d
567 (3d Cir., 1983) (genetic damage by service member’s exposure to
nuclear explosion causing cancer to child); Monaco v. United States, 661
F.2d 129 (9th Cir. 1981).
31 Andrew F. Olshan, Kay Teschke & Patricia A. Baird, Paternal
Occupation and Congenital Anomalies in Offspring, 20 Am. J. of Indus.
Med. 447 (1991).
32 E.g., Kim N. Dietrich, Kathleen M. Kraft, Robert L. Bornschein,
Paul B. Hammond, Omer Berger, Paul A. Succop & Mariana Bier, Low-
Level Lead Exposure Effect on Neurobehavioral Development in Early
Infancy, 80 Pediatrics 721 (1987).
33 See H. Westley Clark & Meryle Weinstein, Chemical Dependency
in Maureen Paul, Occupation and Environmental Reproductive Hazards
344, 347–48 (1993); see also Julie E. Lippert, Comment, Prenatal Injuries
from Passive Tobacco Smoke: Establishing a Cause of Action for
Negligence, 78 Ky. L.J. 865 (1989/90).
34 Mobile OB-GYN, P.C. v. Baggett, 25 So.3d 1129 (Ala. 2009)
(medical malpractice liability for prescribing and failing to advise patient
to discontinue blood pressure drug Benicar during pregnancy and for
failing to appreciate developing signs of fetal damage).
35 Sheppard-Mobley ex rel. Mobley v. King, 4 N.Y.3d 627, 830 N.E.2d
301 (2005) (unsuccessful chemical abortion attempt by physician caused
severe physical injuries in utero to fetus who was later born alive);
Brucker v. Mercola, 227 Ill.2d 502, 886 N.E.2d 306 (2007) (doctor
prescribed L-glutamine but dispensed selenium to pregnant woman whose
fetus was poisoned when the mother ingested it); Hogle v. Hall, 112 Nev.
599, 916 P.2d 814 (1996) (product Accutane, known to be teratogenic if
used during pregnancy, physician liable for prescription). Because the
physician is acting on behalf of both mother and fetus, an infant in utero
was held to have an informed consent claim against the delivering
physician. See Miller ex rel. Miller v. Dacus, 231 S.W.3d 903 (Tenn. 2007).
36 See, e.g., Blackwell v. Wyeth, 408 Md. 575, 971 A.2d 235 (2009)
(rejecting expert testimony trying to link the preservative thimerisol in
vaccines with childhood autism); Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997) (reviewing the sufficiency and admissibility
holdings in the Bendectin cases where plaintiffs asserted that children
suffered limb reduction defects because of fetal exposure through mothers’
ingestion of Bendectin).
37 See Ann Pytkowicz Streissguth, et al., supra n. 22 at 174.
38 See Ira J. Chasnoff, Harvey J. Landress & Mark E. Barrett, The
Prevalence of Illicit Drug or Alcohol Use During Pregnancy, 322 New Eng.
J. Med. 1202 (1990).
39 See § 23.2.
40 E.g., Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974).
41 Stallman v. Youngquist, 125 Ill.2d 267, 531 N.E.2d 355, 126
Ill.Dec. 60, 78 A.L.R.4th 1071 (1988); Remy v. MacDonald, 440 Mass. 675,
801 N.E.2d 260 (2004).
42 Bonte v. Bonte, 136 N.H. 286, 616 A.2d 464 (1992). Accord
National Cas. Co. v. Northern Trust Bank of Fla., 807 So.2d 86 (Fla. Dist.
Ct. App. 2001) (cautiously supporting liability where the mother is
chargeable with negligent driving and recognizing that the answer might
be different if issues of the mother’s personal privacy or health choices
were involved).
43 Chenault v. Huie, 989 S.W.2d 474 (Tex. App. 1999) (doubting
whether a workable standard of care could be developed; “The ‘reasonable
person’ standard … is simply not design to apply to matters involving
intimate, private, and personal decisions”).
44 Grodin v. Grodin, 102 Mich.App. 396, 301 N.W.2d 869 (1980),
disagreement recognized by Mickel v. Wilson, 2010 WL 3418897 (Mich. Ct.
App. 2010).
45 Remy v. MacDonald, 440 Mass. 675, 682, 801 N.E.2d 260, 266
(2004).
46 Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997), authorized
criminal conviction of a mother who used crack cocaine to the injury of the
fetus in the third trimester. In State v. McKnight, 352 S.C. 635, 576
S.E.2d 168 (2003), the court affirmed the homicide conviction of a mother
who used cocaine during pregnancy.
47 See generally Julie A. Greenberg, Reconceptualizing
Preconception Torts, 64 Tenn. L. Rev. 315, 349 ff. (1997); Annotation,
Liability for Child’s Personal Injuries or Death Resulting from Tort
Committed Against Child’s Mother Before Child Was Conceived, 91
A.L.R.3d 316 (1980).
48 Some such claims against the government for harms resulting
from exposure to nuclear radiation have been dismissed under the Feres
rule. See § 22.4.
49 Albala v. City of New York, 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429
N.E.2d 786 (1981).
50 Hegyes v. Unjian Enters., Inc., 234 Cal.App.3d 1103, 286 Cal.Rptr.
85 (1991).
51 E.g., Walker v. Rinck, 604 N.E.2d 591 (Ind. 1992); Lynch v.
Scheininger, 162 N.J. 209, 744 A.2d 113 (2000). Several versions of such
cases arise, but all essentially turn on the fact that health care providers
either trigger antibodies in the mother’s blood by transfusion of
incompatible blood or fail to test the mother’s blood and administer
RhoGAM once the blood has been sensitized. In all these cases, injury to
the fetus can be avoided only by preconception care.
52 See Lough v. Rolla Women’s Clinic, Inc., 866 S.W.2d 851 (Mo.
1993) (giving a version of this hypothetical).
53 Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133 (Tenn. 2001)
(failure to inform mother of risk of HIV from blood transfusion left her
unable to take precautions to guard against transmission to her child);
Bergstreser v. Mitchell, 577 F.2d 22 (8th Cir. 1978); Jorgensen v. Meade
Johnson Lab., Inc., 483 F.2d 237 (10th Cir. 1973); Empire Cas. Co. v. St.
Paul Fire & Marine Ins. Co., 764 P.2d 1191 (Colo. 1988); Renslow v.
Mennonite Hosp., 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250, 91
A.L.R.3d 291 (1977); Walker v. Rinck, 604 N.E.2d 591 (Ind. 1992); Graham
v. Keuchel, 847 P.2d 342 (Okla. 1993); Sweeney v. Preston, 642 So.2d 332
(Miss. 1994) (without separate discussion of the preconception issue).
54 Grover v. Eli Lilly & Co., 63 Ohio St.3d 756, 591 N.E.2d 696 (1992)
(child could not recover for injury ultimately due to his grandmother’s
ingestion of DES 28 years earlier; blanket rule against preconception tort
liability not required).
55 Hegyes v. Unjian Enters., Inc., 234 Cal.App.3d 1103, 286 Cal.Rptr.
85 (1991) (duty might be recognized in professional negligence cases but
not in car accident cases three years before conception); Taylor v. Cutler,
306 N.J.Super. 37, 703 A.2d 294 (1997), aff’d without opinion as to this
point, 157 N.J. 525, 724 A.2d 793 (1999).
56 See Julie A. Greenberg, Reconceptualizing Preconception Torts, 64
Tenn. L. Rev. 315, 347 ff. (1997).
57 See Restatement Third of Torts (Physical and Emotional Harm) §§
3, 7 (establishing a baseline duty of reasonable care and a mechanism for
courts to create exception based on principle or policy).
58 Analogous problems arise when the plaintiff bears a child as a
result of a rape, see Doe v. Westfall Health Care Ctr., Inc., 303 A.D.2d 102,
755 N.Y.S.2d 769 (2002) (grandparents who adopted child could not
recover cost of raising child from caretaker whose staff member raped
vegetative patient).
59 In Galvez v. Frields, 88 Cal.App.4th 1410, 107 Cal.Rptr.2d 50
(2001), the court held it prejudicial error to refuse a negligence per se
instruction when evidence supported the claim that, in failing to order a
screening test, a physician violated a state regulation.
60 Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000).
61 E.g., Willis v. Wu, 362 S.C. 146, 607 S.E.2d 63 (2004) (rejecting
wrongful life claim of eight-year-old born with hydrocephalus); Walker v.
Mart, 164 Ariz. 37, 790 P.2d 735 (1990); Cowe v. Forum Group, Inc., 575
N.E.2d 630 (Ind. 1991); Kassama v. Magat, 368 Md. 113, 792 A.2d 1102
(2002) (“an impaired life is not worse than non-life, and, for that reason,
life is not, and cannot be, an injury”); B.D.H. ex rel. S.K.L. v. Mickelson,
792 N.W.2d 169 (N.D. 2010) (statute precluded “wrongful life” claim).
62 See Clark v. Children’s Mem’l Hosp., 353 Ill.Dec. 254, 955 N.E.2d
1065 (2011) (on public policy grounds, a child born with a genetic or
congenital condition does not have a claim for wrongful life because “his
life, while burdened by his condition, is as a matter of law, always
preferable to nonlife”).
63 Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954
(1982); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483
(1983); Johnson v. Superior Court, 101 Cal.App.4th 869, 124 Cal.Rptr.2d
650 (2002) (defendants allegedly supplied defective sperm for artificial
insemination knowing that the donor’s family had a history of polycystic
kidney disease likely to be inherited; Brittany, the child born of this
arrangement, suffered the disease as a result. In her suit against these
suppliers, the court held that she could not recover for emotional distress
because this was essentially a wrongful life claim).
64 See, e.g., Arche v. United States, 247 Kan. 276, 798 P.2d 477
(1990) (limiting the parents’ recovery of damages to the period of the
child’s minority). Most courts apparently would not impose such a limit.
See Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986).
65 In Galvez v. Frields, 88 Cal.App.4th 1410, 107 Cal.Rptr.2d 50
(2001), the court held that negligent testing could be established under the
negligence per se rule by showing that the defendant failed to order a
screening test required by regulation.
66 E.g., Burns v. Hanson, 249 Conn. 809, 734 A.2d 964 (1999)
(alleged negligence in diagnosis of or advice about pregnancy of severely
disabled mother in time to permit abortion of healthy child); Smith v. Cote,
128 N.H. 231, 513 A.2d 341 (1986).
67 Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 22 A.L.R.3d 1411
(1967), abrogation recognized by Hummel v. Reiss, 608 A.2d 1341 (N.J.
1992).
68 Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
69 E.g., Lininger v. Eisenbaum, 764 P.2d 1202 (Colo. 1988); Hummel
v. Reiss, 608 A.2d 1341 (N.J. 1992); Becker v. Schwartz, 46 N.Y.2d 401,
413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Thibeault v. Larson, 666 A.2d
112 (Me. 1995) (under a statute); cf. Arche v. United States, 247 Kan. 276,
798 P.2d 477 (1990) (claim is cognizable only when the “child has such
gross deformities, not medically correctable, that the child will never be
able to function as a normal human being”).
70 Laboratory Corp. of Am. v. Hood, 395 Md. 608, 911 A.2d 841
(2006) (analyzing public policy exception to choice of law provisions).
71 Compare Fruiterman v. Granata, 276 Va. 629, 668 S.E.2d 127
(2008) (husband of pregnant wife was not a patient to whom doctor owed a
duty for purposes of wrongful birth claim), with Laboratory Corp. of Am. v.
Hood, 395 Md. 608, 911 A.2d 841 (2006) (whether lab that misdiagnosed
cystic fibrosis genetic mutation owed a duty to the father as well as the
mother was fact-dependent inquiry as “in many cases, especially when the
woman is married, that decision [to terminate a pregnancy] is one jointly
arrived at by the woman and her husband”).
72 Moscatello v. University of Med. & Dentistry of N.J., 342
N.J.Super. 351, 776 A.2d 874 (2001) (duty did not extend to others who
had no right of choice).
73 See Halper v. Jewish Family & Children’s Serv. of Greater
Philadelphia, 600 Pa. 145, 963 A.2d 1282 (2009) (accepting the cause of
action but finding that its requirements were not met in the case before it);
Meracle v. Children’s Serv. Soc’y of Wis., 149 Wis. 2d 19, 437 N.W.2d 532
(1989); Burr v. Board of County Comm’rs of Stark County, 23 Ohio St. 3d
69, 491 N.E.2d 1101, 56 A.L.R.4th 357 (1986).
74 What counts as appropriate information has been the subject of
some litigation. See Hall v. Dartmouth Hitchcock Med. Ctr., 153 N.H. 388,
899 A.2d 240 (2006).
75 Pre-conception negligence in genetic counseling suffices if the
parent would have avoided conception or terminated pregnancy upon
being fully advised. See Didato v. Strehler, 554 S.E.2d 42 (Va. 2001);
Canesi v. Wilson, 158 N.J. 490, 730 A.2d 805 (1999).
76 See Grubbs v. Barbourville Family Health Ctr., P.S.C., 120 S.W.3d
682 (Ky. 2003) (involving pregnancies of 22 and 24 weeks at the time
information about fetal condition was acquired; although rejecting the tort
action for lack of injury, the court approved a breach of contract action
against physicians who breach contract obligations to diagnose and report
correctly); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985).
Georgia insists that the claim does not “does not fit within the parameters
of traditional tort law” and that only the legislature can recognize it.
Etkind v. Suarez, 271 Ga. 352, 519 S.E.2d 210 (1999).
77 See Wilson v. Kuenzi, 751 S.W.2d 741 (Mo. 1988).
78 E.g., Idaho Code § 145.424; Minn. Stat. Ann. § 5–334.
79 Wood v. University of Utah Med. Ctr., 67 P.3d 436 (Utah 2002)
(upholding statute); Hickman v. Group Health Plan, Inc., 396 N.W.2d 101
(Minn. 1986) (Minnesota statute did not violate constitutional guarantees);
but see Note, Wrongful Birth Actions: The Case against Legislative
Curtailment, 100 Harv. L. Rev. 2017 (1987); Julie F. Kowitz, Note, Not
Your Garden Variety Tort Reform: Statutes Barring Claims for Wrongful
Life and Wrongful Birth Are Unconstitutional under the Purpose Prong of
Planned Parenthood v. Casey, 61 Brook. L. Rev. 235 (1995) (arguing that
statutes deny the constitutional rights recognized in Roe v. Wade and later
cases); Stephanie S. Gold, An Equality Approach to Wrongful Birth
Statutes, 65 Fordham L. Rev. 1005 (1996) (arguing the statutes engage in
gender discrimination); Julie Gantz, State Statutory Preclusion of
Wrongful Birth Relief: A Troubling Re-Writing of a Woman’s Right to
Choose and the Doctor-Patient Relationship, 4 Va. J. Soc. Pol’y & L. 795
(1997).
80 After the statutes, actions seeking recovery for harms other than
the loss of opportunity to terminate a pregnancy may still be actionable.
For example, failures of preconception genetic counseling may be
actionable. See Molloy v. Meier, 679 N.W.2d 711 (Minn. 2004) (statute did
not preclude malpractice claim in which parents alleged that if their first
child had been accurately diagnosed with genetic disorder, their second
child would not have been aborted, but rather, would not have been
conceived). Similarly, in Vanvooren v. Astin, 141 Idaho 440, 111 P.3d 125
(2005), the court rejected a claim styled as a claim for negligent infliction
of emotional distress which essentially sought recovery for the parents’
distress as the result of their inability to terminate the pregnancy.
However, the court left aside as not properly presented, the plaintiff’s
deposition claim that the physician’s failure to provide accurate
information denied her the opportunity to better prepare for the birth.
81 See Allan H. Macurdy, Disability Ideology and the Law School
Curriculum, 4 B.U. Pub. Int. L.J. 443 (1995). See also Jillian T. Stein,
Backdoor Eugenics: The Troubling Implication of Certain Damages
Awards in Wrongful Birth and Wrongful Life Claims, 40 Seton Hall L.
Rev. 1117 (2010).
82 E.g., Didato v. Strehler, 554 S.E.2d 42 (Va. 2001) (alleged failure
to advise parents after first child that future children would likely suffer
serious genetic harm); McAllister v. Ha, 347 N.C. 638, 496 S.E.2d 577
(1998).
83 E.g., Chaffee v. Seslar, 786 N.E.2d 705 (Ind. 2003) (negligent
salpingectomy); Simmerer v. Dabbas, 890 Ohio.St.3d 586, 233 N.E.2d 1169
(2000) (negligent sterilization of mother); Heather A. Weisser, Abolishing
the Pharmacist’s Veto: An Argument in Support of a Wrongful Conception
Cause of Action Against Pharmacists Who Refuse to Provide Emergency
Contraception, 80 S. Cal. L. Rev. 865 (2007).
84 See Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 879 A.2d
1088 (2005) (seemingly so implying). However, other courts may well take
a broader view of the physician’s duty, see, e.g., Estate of Amos v.
Vanderbilt Univ., 62 S.W.3d 133 (Tenn. 2001).
85 This must be qualified in cases like Burns v. Hanson, 249 Conn.
809, 734 A.2d 964 (1999), where the plaintiff, a severely disabled person
for whom pregnancy was contraindicated, claimed that the doctor failed to
advise her of her pregnancy in time to permit an abortion. In such a case,
the patient must show that she would have undergone an abortion if she
had been given timely information. The trial judge refused to permit the
plaintiff to testify that she would have had an abortion, then told the jury
that she was required to prove that she would have had one. This was
error and judgment for the defendant was reversed on appeal.
86 E.g., Minn. Stat. Ann. § 145.424 (“No person shall maintain a
cause of action or receive an award of damages on the claim that but for
the negligent conduct of another, a child would have been aborted,” also
specifically preserving the wrongful pregnancy claim). See Molloy v. Meier,
679 N.W.2d 711 (Minn. 2004) (statute quoted does not bar claim based on
assertion that mother would not have conceived second child had she been
properly advised that first child’s disability was genetic). A physician’s
negligent failure to diagnose pregnancy in time to permit termination is
closely analogous to the wrongful pregnancy case. See M.A. v. United
States, 951 P.2d 851 (Alaska 1998).
87 Etkind v. Suarez, 271 Ga. 352, 519 S.E.2d 210 (1999); Jackson v.
Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986).
88 See Schork v. Huber, 648 S.W.2d 861 (Ky. 1983) (healthy child is
not an injury); Thibeault v. Larson, 666 A.2d 112 (Me. 1995).
89 E.g., Emerson v. Magendantz, 689 A.2d 409 (R.I. 1997) (reviewing
the cases).
90 See Chapter 34.
91 Phillips v. United States, 575 F. Supp. 1309 (D.S.C. 1983); Smith
v. Cote, 128 N.H. 231, 513 A.2d 341 (1986); Becker v. Schwartz, 46 N.Y.2d
401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Speck v. Finegold, 497 Pa.
77, 439 A.2d 110 (1981); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825
(1982); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483
(1983); James G. v. Caserta, 332 S.E.2d 872 (W.Va. 1985).
92 Meracle v. Children’s Serv. Soc’y of Wis., 149 Wis. 2d 19, 437
N.W.2d 532 (1989).
93 E.g., Keel v. Banach, 624 So.2d 1022 (Ala. 1993); Arche v. United
States, 247 Kan. 276, 798 P.2d 477 (1990). Under the traditional collateral
source rule of damages, the claim may be maintained even when
government programs pay some of the child’s extraordinary expenses.
Foote v. Albany Med. Ctr. Hosp., 892 N.Y.S.2d 203 (App. Div. 2009).
94 Contra: Robak v. United States, 658 F.2d 471 (7th Cir. 1981).
95 Clark v. Children’s Mem’l Hosp., 353 Ill.Dec. 254, 955 N.E.2d 1065
(2011) (parents could not recover damages in wrongful birth suit for costs
of caring for child during his majority, because parents are not legally
obligated to pay an adult child’s expenses); Shull v. Reid, 258 P.3d 521
(Okla. 2011) (recovery of damages allowed in wrongful birth action
alleging medical malpractice is limited to extraordinary expenses for the
period of time of the child’s life expectancy or until the child reaches the
age of majority, whichever is shorter); but see Arche v. United States, 247
Kan. 276, 798 P.2d 477 (1990) (but noting that the state would be
responsible for the disabled child after the child reached adulthood).
96 Schirmer v. Mt. Auburn Obstetrics & Gynecological Assocs., Inc.,
108 Ohio St.3d 494, 844 N.E.2d 1160 (2006).
97 Phillips v. United States, 575 F. Supp. 1309 (D.S.C. 1983); Greco
v. United States, 111 Nev. 405, 893 P.2d 345 (1995). See Annotation,
Recoverability of Compensatory Damages for Mental Anguish or
Emotional Distress for Tortiously Causing Another’s Birth, 74 A.L.R.4th
798 (1989).
98 Hill v. Mills, 26 So.3d 322 (Miss. 2010).
99 Smith v. Cote, 128 N.H. 231, 513 A.2d 341, 348–49 (1986); Becker
v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978);
Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assocs., 108 Ohio St.3d
494, 844 N.E.2d 1160 (2006), rev’g, 155 Ohio App.3d 640, 802 N.E.2d 723
(2003).
100 See Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447
N.E.2d 385 (1983); Chaffee v. Seslar, 786 N.E.2d 705 (Ind. 2003); Schork v.
Huber, 648 S.W.2d 861 (Ky. 1983); O’Toole v. Greenberg, 64 N.Y.2d 427,
477 N.E.2d 445, 488 N.Y.S.2d 143 (1985); Johnson v. University Hosps. of
Cleveland, 44 Ohio St.3d 49, 540 N.E.2d 1370 (1989); Smith v. Gore, 728
S.W.2d 738, 751 (Tenn. 1987); James G. v. Caserta, 332 S.E.2d 872 (W. Va.
1985); Beardsley v. Wierdsma, 650 P.2d 288 (Wyo. 1982).
101 See Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990).
102 See Cf. Michael B. Kelly, The Rightful Position in “Wrongful Life”
Actions, 42 Hastings L. J. 505, 525–35 (1991).
103 University of Ariz. Health Scis. Ctr. v. Superior Court, 136 Ariz.
579, 667 P.2d 1294 (1983); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883
(1982); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Burke v.
Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990); Lovelace Med. Ctr. v. Mendez,
805 P.2d 603 (N.M. 1991); Zehr v. Haugen, 318 Or. 647, 871 P.2d 1006
(1994); Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990).
104 Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151 (La. 1988); Burke v.
Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990).
105 Smith v. Gore, 728 S.W.2d 738, 751 (Tenn. 1987).
106 Lovelace Med. Ctr. v. Mendez, 805 P.2d 603 (N.M. 1991).
107 Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151 (La. 1988)
(expenses of pregnancy and delivery).
109 Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151, 1161–62 (La.
1988); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990); Smith v. Gore,
728 S.W.2d 738, 751 (Tenn. 1987).
110 Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986).
111 Lovelace Med. Ctr. v. Mendez, 805 P.2d 603 (N.M. 1991); Emerson
v. Magendantz, 689 A.2d 409 (R.I. 1997).
113 See § 27.4.
114 See 1 Dan B. Dobbs, Remedies § 3.9 and 2 id. § 8.7.
115 See Lovelace Med. Ctr. v. Mendez, 805 P.2d 603 (N.M. 1991). The
possibility of abortion to minimize damages has been suggested as a
ground for denying recovery of normal child-rearing expenses. See Robak
v. United States, 658 F.2d 471, 479 n. 23 (7th Cir. 1981) (“Because they
freely chose not to have an abortion, they should be responsible for the
costs of a normal child”); Sorkin v. Lee, 78 A.D.2d 180, 434 N.Y.S.2d 300
(1980). These cases appear to adopt a rule of damages that excludes the
normal costs of child-rearing for the very purpose of avoiding the issue of
minimizing damages and some of the decisions have spelled this point out
in detail. See Flowers v. District of Columbia, 478 A.2d 1073 (D.C. 1984).
In Hall v. Dartmouth Hitchcock Medical Center, 153 N.H. 388, 899 A.2d
240 (2006), the court did apparently consider the fact that the wrongful-
birth-claimant mother could have sought an abortion even at the late date
that she was informed of an increased possibility of birth defects.
116 Smith v. Gore, 728 S.W.2d 738, 751–52 (Tenn. 1987). See also
Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883, 885 (1982); Marciniak v.
Lundborg, 153 Wis.2d 59, 450 N.W.2d 243, 247 (1990) (not reasonable
under ordinary rules to require abortion to minimize damages); Ellen M.
Bublick, Comparative Fault to the Limits, 56 Vand. L. Rev. 977, 1023–24
(2003) (outlining courts’ reluctance to allow comparative fault claims based
on the plaintiff’s exercise of fundamental and sometimes constitutionally-
protected rights).
685
Chapter 28
WRONGFUL DEATH AND SURVIVAL

ACTIONS
Analysis
§ 28.3 Wrongful Death Actions: Pecuniary Loss Damages
§ 28.4 Wrongful Death Actions: Non-Pecuniary Damages
§ 28.5 Procedure, Distribution, Defenses and Damages
__________

Common law rules. According to a Latin maxim, personal
actions die with the person. The common law followed that maxim,
holding that the death of either the tortfeasor or the victim
eliminated all tort claims. In particular: (1) If the tort victim died,
his cause of action was at an end; his estate had no cause of
action.1 (2) If the tortfeasor himself died, the victim’s claim died as
well.2 (3) If the victim died, her survivors had no independent
claim of their own against the tortfeasor for their loss of support or
for their grief and sorrow.3 There has never been any good
explanation for all these rules.4 For a brief period, some American
authority reversed the English common law rule,5 but by the
middle of the 19th century, American courts had returned to the
common law fold, leaving death actions to the legislature.6
Adoption of statutes. In the latter half of the 19th century,
following the lead of English legislation often known as Lord
Campbell’s Act,7 the American states addressed the problem by
legislation which remains the source of almost all rights arising
out of a person’s death.8
686
Federal statutes. Tort law is usually state law and that is also
true with wrongful death statutes. However, a number of
important federal statutes have been enacted, among them the
Federal Employers’ Liability Act (FELA)9 and the Jones Act,10
providing rights for railroad workers and seamen respectively. A
complex mixture of statutes and decisional law of Admiralty covers
some maritime cases.11 Treaties and protocols deal with death on
international air flights.12 Almost all state and federal legislation
deals with death claims in two basic ways or in some combination
of those two ways—through survival actions and wrongful death
claims.
Survival statutes. Survival statutes provide for the survival of
whatever tort cause of action the deceased herself would have had
if she had been able to sue at the moment of her death. For
example, if at the time of her death the deceased would have been
entitled to recover from the tortfeasor for her pain and suffering,
loss of wages, and medical expenses between the time of injury and
the time of death, a survival statute would enable the deceased’s
estate to pursue that recovery. The right to sue under the survival
statute is subject to claims of the deceased’s creditors.
Wrongful death statutes. Wrongful death statutes, by contrast,
create a new action in favor of certain beneficiaries who suffer from
another’s death. All states recognize some kind of claim. Indeed,
foreign jurisdictions recognize such claims.13 Because a wrongful
death statute creates a new cause of action and vests that action in
the survivors (or their representative), the wrongful death recovery
does not go to the deceased’s estate and is not subject to claims of
the deceased’s creditors.
Combining the two. In most states both the wrongful death and
the survival claim can be made because they do not duplicate items
of damages. Some states combine the features of both kinds of
actions in a single statute. Such hybrid statutes may produce
different approaches to damages or defenses.
Underlying issues. The underlying substance of the claims in
death cases is much the same as in other tort cases. Familiar
issues of duty, breach, causation, and proximate cause are basic to
all wrongful death and survival actions based on negligence.14
Likewise, the special problems associated with fetal harm,
governmental immunity, federal preemption, medical practice and
many other issues arise in death actions.15
687

Nature and purpose of the survival action. The survival action
reverses the common law rule that a cause of action abates with
the death of either party. In its usual form, the survival action
allows the deceased’s tort cause of action to continue or survive
after his death. For example, if the defendant negligently breaks
the victim’s leg, resulting in wage loss and medical costs, damages
for those items could be recovered by the victim in his lifetime. If
the victim dies six months later from other causes without having
settled or recovered, the survival statutes permit recovery of the
same damages by the victim’s estate.
Damages suffered by the decedant before death. The ordinary
survival statute is intended to recoup the losses suffered by the
decedent up to the time of his death. The usual rule permits the
survival action regardless of the cause of death and regardless of
whether death was instantaneous,16 provided only that permissible
elements of damages can be shown. Another group of statutes
allows the survival action where the injury resulted in death only if
death is not instantaneous.17
Types of damage allowed. Damages in the survival action are
often quite limited. They reflect only the damages the decedent
herself could have claimed at the moment of her death.18 Recovery
in the survival action may include damages for the decedent’s
conscious19 pain and suffering resulting from the injury.20
Conscious pain and suffering may include the suffering arising
from the deceased’s imminent apprehension of death before
physical impact.21 Damages in a survival action may also include
medical expenses resulting from the injury,22 decedent’s lost
enjoyment of life,23 any earnings lost between the time of injury
and the death,24 punitive damages against a living
688
tortfeasor,25 and funeral expenses,26 provided such expenses

have not been allocated to27 or actually recovered in the wrongful
death action.28 Some states allow broader recoveries.29 Particular
statutes, however, may exclude some of the listed items of damage.
For example, some statutes exclude pain and suffering
recoveries,30 recovery for lost enjoyment of life,31 or punitive
damages.32
Actions that survive or do not. Many survival statutes are
somewhat narrow because they expressly exclude a number of
economic and dignitary torts such as libel, slander, malicious
prosecution and the like, leaving those actions to abate upon death
of either party under the common law rule.33 When the scope of the
statute is not clear, courts have sometimes interpreted it
generously in favor of survival.34 A few decisions have held that
the statute’s exclusion of particular causes of action, such as those
for defamation, is unwarranted and unconstitutional, with the
result that in such a state the libel action survives along with
ordinary personal injury claims.35
Surviving the tortfeasor’s death. The usual case for invoking a
survival statute involves the death of the tortfeasor’s victim and
survival of the claim. However, the common law rule also abated
the claim if the tortfeasor himself died before judgment. Most
survival acts now appear to be worded broadly enough to permit a
suit not only when the tort victim has died but also when the
tortfeasor himself has died.36 When the tortfeasor has died, the
survival action is brought against his estate. In that kind of
survival action, punitive damages are often denied,37 though not
always so.38
§ 28.3 Wrongful Death Actions: Pecuniary Loss
Damages
Wrongful death actions. The traditional wrongful death statutes
created a whole new cause of action for the benefit of the decedent’s
survivors. Except in Alabama, which
689
has used a punitive measure of damages,39 recovery was limited

to pecuniary harm of the survivors and thus did not originally
include any recovery for, say, the emotional distress of a bereaved
spouse.40 The pecuniary harm of the survivors in United States
jurisdictions is calculated in a highly individualized manner.41
Other countries,42 as well as quasi-tort compensation systems in
the United States,43 have relied on more generalized computations.
Under the influence of statutory language, courts have estimated
pecuniary harm in two quite different ways: (1) as the loss to
dependents, or (2) as the loss to the estate. Both main approaches
to pecuniary loss may vary by statutory detail.
Loss to Dependents Measure
Loss of support to dependents as a measure of pecuniary loss.
Courts have usually interpreted both state44 and federal45
wrongful death statutes to allow recovery of sums necessary to
replace the direct or indirect financial support lost by the
decedent’s dependents.46 Contributions by the decedent to the
dependents’ support might take the form of cash, but perhaps more
often they take the form of provisions for shelter, food, or services
rendered.47
Forms of evidence. As a matter of proof, dependents might
adduce evidence of the reasonable value of, say, benefits provided
by the decedent, such as furnished living quarters. Or the
dependents might show the decedent’s total income together with
evidence about the amounts the decedent would probably spend for
his own maintenance and other items that would not go toward
support of the plaintiffs. The difference would reflect an estimate of
the pecuniary value of the support provided.48
690
Prospects of continued support and time period. The fact that

support has been provided in the past does not ensure that it will
continue in the future, so courts admit evidence of the decedent’s
affection for the dependents, or the lack of it, as bearing on future
probable contributions.49 The decedent’s prospects of gaining
greater income in the future is also to be considered.50 Finally, the
time period during which support would probably be provided must
be proven.
Decedents not earning or contributing. Measuring loss to
dependents may present serious problems when the decedent is a
child, a homemaker, or a retired person with no dependents,
especially where non-pecuniary damages are not recoverable. In
the case of a child or retired person, the pecuniary loss to
dependents is likely to be zero or very little at most.51 The
traditional measure for a child-death was the value of the child’s
services minus the cost of rearing the child.52 However, some
courts now presume that a pecuniary loss is suffered in the case of
a child’s wrongful death.53 In the case of a homemaker, services in
the home can be valued as a pecuniary contribution,54 but the
sums represented by these services can be relatively small.
Another possibility is to compensate for lost earning capacity.55 In
the case of a retired person, substantial recovery is also confounded
by the limited life expectancy of older persons. These limits on
recovery in the case of people whose lives are valuable but who do
not earn money in the labor market can be avoided by permitting
awards for mental anguish or the like, by recognizing some
measure of welfare loss to the decedent,56 or, in some cases, by
adopting the loss to the estate measure of pecuniary loss.
Loss to the Estate Measure
Loss to the estate as a measure of pecuniary loss. The second
approach to measuring pecuniary loss figures a recovery on the
basis of accumulations or savings cut short by the decedent’s
untimely death. Damages under this approach might be measured
in slightly different ways, but the main idea is to add up what the
decedent would probably have earned57 in a normal lifetime and
award that sum after subtracting something for
691
the costs the decedent would have had to maintain himself.58

This measure is sometimes called the loss to the estate measure. It
ignores loss of support to survivors and concentrates on the
potential property loss someone would have had if the decedent
had lived out a full lifetime. Inevitably, a certain amount of
speculation is permitted in death claims, because the alternative in
most instances would be to deny all compensation.59
Combined Measures
Adding loss of inheritance to the loss to dependents approach.
Some courts have allowed dependents to claim both loss to
dependents and loss of inheritance of heirs or presumptive heirs.
In Martin v. Atlantic Coast Line Railroad,60 the proof at trial
tended to show that at the time of his death, the decedent was
making contributions to his spouse, and that he would have
increased earnings which would probably have been saved. Under
the loss to dependents rule, the spousal contributions would be
recoverable; under the loss to the estate measure, the provable
lifetime savings would be recoverable. The Martin court allowed
recovery of both elements, in effect holding the tortfeasor liable for
all losses caused.
Statutory adoption. The Martin approach, or something similar,
has been adopted by statute61 and by judicial decision62 in a
number of cases, and when not available under the wrongful death
act, is nevertheless sometimes allowed under the survival act.63
Some such approach might be one of the only methods by which
recovery could be allowed to survivors like adult children who
received no current contributions from the deceased.64 Some
authority, however, has expressly rejected the loss of inheritance
claim.65
§ 28.4 Wrongful Death Actions: Non-Pecuniary
Damages
Traditional rule. Traditionally, a death statute protected only
the pecuniary interests of survivors so nothing was recovered for
the survivor’s mental anguish or
692
emotional loss.66 In the most stringent view, nothing could be

recovered for loss of society either, unless that loss of society could
be expressed in monetary terms.67
Problems with a solely pecuniary focus. As noted, a limitation of
damages to pecuniary losses results in virtual denial of recovery
when the decedent is a child, a retired person or any person not in
the labor market.68 Even in a case in which the decedent was an
active wage earner, pecuniary damages fail to capture the full
measure of the loss either to the decedent or to dependents or
others. Some distinguished scholars have forcefully argued that
state wrongful death damages are too low because they do not
adequately take account of the welfare loss of the decedent and
dependents.69
Current rule on nonpecuniary recovery. Today, many
jurisdictions permit nonpecuniary recovery for the survivor’s loss of
companionship, society, advice and guidance,70 sometimes on the
theory that such elements have a pecuniary value.71 Indeed, the
September 11th Victim Compensation Fund, which was modeled
on tort principles, scheduled significant noneconomic benefit
awards into its compensation structure.72 In addition, some states
take account of the lost value of life to the decedent,
693
sometimes termed “hedonic damages,” in wrongful death,73 or

survival actions.74 Additionally, many states permit recovery for
emotional harm or anguish in wrongful death actions. Some of the
statutes now provide for it directly, usually in addition to the
claims for lost companionship, society, guidance and the like.75
Elsewhere, some courts have expanded liability to include mental
anguish recovery through other torts76 or under statutes that do
not specifically authorize it.77
Punitive damages. Alabama has a unique approach to wrongful
death damages, basing recovery on a purely punitive measure.78
But traditional death statutes, by limiting damages to pecuniary
losses, might appear to exclude punitive damages altogether in the
death (but not necessarily the survival) action.79 Punitive damages
could also be excluded on the ground that because the action was
statutory, no award could be made unless explicitly authorized by
the statute.80
Rationale. However, the policies supporting punitive damages
apply as much or more in death actions as any other. For this and
similar reasons, some courts have allowed punitive damages in
spite of the statute’s pecuniary loss requirement.81 In addition,
some statutes can be construed to permit punitive damages
because they authorize damages that are fair and just,82 or
because they allow modification of the basic damages award for
aggravating or mitigating circumstances.83 Other statutes now
explicitly provide for the award of punitive damages.84 Besides the
statutes themselves,
694
a sizeable number of decisions have now allowed a recovery of
punitive damages in death actions or have approved them in
principle.85
§ 28.5 Procedure, Distribution, Defenses and
Damages
Plaintiffs in wrongful death and survival actions. Some statutes
permit direct wrongful death action suits by beneficiaries; others
provide that the wrongful death suit is to be brought by a
representative on the beneficiaries’ behalf. Sometimes the
representative in the wrongful death case is the personal
representative of the estate—the same person who sues under the
survival act.86 However, monies recovered under the survival act
are payable to the estate and generally subject to claims of the
estate’s creditors, while damages recovered for the beneficiaries are
payable to the beneficiaries without going through the estate and
the death action recovery is typically not subject to claims the
creditors might have against the estate itself.87 The distribution of
damages differs from state to state and the governing statutes
must always be consulted for determinative detail.88
Arbitration clauses. When the decedent had signed an
agreement to arbitrate claims, the arbitration clause would seem to
apply to the decedent’s survival claim but not to the wrongful
death action, which belongs to the beneficiaries themselves.89
However, a number of courts have held that the wrongful death
claim itself is subject to arbitration.90 Precisely which parties and
claims are subject to arbitration as a result of the decedent’s pre-
death agreement is a particularly significant issue in light of a
recent narrowing of courts’ ability to review arbitration agreements
for unconscionability.91
Limiting wrongful death recovery to specified family members.
All statutes limit the beneficiaries in some way, usually to specified
family members such as spouses, children, parents, or heirs.92 This
sort of list is underinclusive because many who receive support or
who suffer grief at the deceased’s loss may not count as “heirs” or
children.93 Indeed,
695
at one time illegitimate children were excluded. That is now

unconstitutional.94 But other issues remain.95 Traditionally,
unmarried domestic partners were excluded from claims for
emotional distress resulting from injury or death of the other
partner, from loss of consortium claims, and from wrongful death
claims. Some statutes now permit recovery by a qualified domestic
partner for wrongful death of the other partner.96 Recognition of
same sex marriages should lessen, though not alleviate, the
problem. California allows some different-sex partners to recover
as well.97 European principles permit compensation beyond formal
family members.98
Caps on wrongful death damages. Tort reform legislation in a
number of states has imposed caps on recoveries in death actions
in certain situations. Medical providers are frequent beneficiaries
of these statutes.99 When medical malpractice causes death, some
states cap recovery.100 However, caps are not exclusive to the
malpractice context. Caps on noneconomic losses101 and other
items102 can also limit recoveries in other types of wrongful death
cases. Of course, these limits are imposed by particular legislation
and many states have no such limits on recoveries or have
constitutional or statutory provisions that explicitly disallow
them.103
696
Wrongful death actions as independent or derivative: defenses.

Wrongful death statutes create a new cause of action for the
benefit of survivors; it is not merely a continuance of the deceased’s
own claim. At the same time, many statutes provide that no new
cause of action is created unless the deceased himself would have
been able to sue had he lived.104 The effect of this statutory
provision can be conceived as making the death action derivative of
the decedent’s own claim, not a wholly independent action.
Following this thinking, a defense that would have defeated the
deceased’s claim had he lived may also defeat the wrongful death
suit.105 Of course, not all defenses need be treated in the same
way. In wrongful death suits, a statutory beneficiary whose
negligence contributed to the deceased’s death is usually subject to
the contributory or comparative negligence rules.106
Survival claims as derivative: defenses. Since survival statutes
merely perpetuated the cause of action the decedent himself would
have had, a defense that would bar or reduce damages of the
deceased would have the same effect on the estate’s claim under
the survival act.107 However, a few courts have dealt with the
beneficiary’s negligence in a different manner.108 The survival
action is prosecuted by the deceased’s personal representative and
recoveries are paid to the estate. Consequently, in a formal sense,
the negligence of a person who inherits from the estate might seem
irrelevant, as some courts have held.109
Statutes of limitation in wrongful death actions. One of the
central statutes of limitation questions in wrongful death actions
arises when the tort victim dies long after the injury was inflicted.
If she dies after her personal injury claim is barred, can a wrongful
death action be brought? The argument for allowing the claim is
that the wrongful death action creates a new cause of action in
favor of the survivors, and that the survivors or their
representative could not bring the action until death occurred,110
so that the statute of limitations should begin to run at death, not
sooner. For this
697
reason, or because the death statute specifically provides for

accrual at the time of death, a good many courts who are not
constrained by specific statutory commands have held that the
wrongful death suit may be maintained even after the personal
injury action on which it is based has expired.111 The other major
view is that, although the wrongful death statute creates a new
cause of action for survivors, the claim is to some extent derivative
of the deceased’s own rights. If he would have had no right to sue
had he lived, then the survivors would have no rights.112 In the
same way, if his once-existing right had expired, then the
survivors’ rights have expired, too.113
Prior judgment or release: effect of injured victim’s settlement on
survival and wrongful death claims. When an injured victim
pursues her claim against the tortfeasor to judgment or settles and
releases her claim with him, the victim’s claim is terminated.
Consequently, there is no personal injury claim to survive and no
survival action may be brought.114 The question that has produced
division is whether the wrongful death claim is also terminated by
the victim’s inter vivos settlement or by litigation that goes to
judgment. The answer of most courts—in which some legislatures
have joined115—is that either a settlement by the victim or a
judgment for or against him will preclude the wrongful death
action where death resulted from the original injury and not from
its later aggravation.116
________________________________
1 See Higgins v. Butcher, Yelv. 89, 80 Eng. Rep. 61 (K.B. 1607).
Torts to personal property did survive, however. See Percy H. Winfield,
Death as Affecting Liability in Tort, 29 Colum. L. Rev. 237, 242–43 (1929).
2 See Winfield, supra note 1 at 242; T. A. Smedley, Wrongful Death
—Bases of the Common Law Rules, 13 Vand. L. Rev. 605 (1960).
3 Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (Nisi Prius
1808).
4 However, an historical explanation for some of the rules can be
found in primitive English law. The English idea was that there was no
private tort action for a felony because the tort action merged in the
felony, which was to say that the felon’s property was forfeited to the
Crown, which was unwilling to share any of the assets with the felon’s
victim.
5 See Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev.
1043 (1965).
6 Carey v. Berkshire R.R., 55 Mass. (1 Cush.) 475, 48 Am. Dec. 616
(1848), overruled in part, Gaudette v. Webb, 284 N.E.2d 222 (Mass. 1972).
This decision may have been influenced by the fact that the Massachusetts
legislature had much earlier created certain rights to recover for death on
badly maintained bridges and death caused by boat or railroad. Only
limited damages were allowed railroad passengers under these statutes.
In the face of these statutes, the Massachusetts Court may have been
reluctant to create a general common law right to recover for death
without limitation.
7 9 & 10 Vict. Ch. 93 (1846).
8 A few decisions have said that a common law right of action for
death existed in their jurisdictions and consequently that the present
death statute should be interpreted in light of the common law action or
even as a codification of that cause of action. See LaFage v. Jani, 166 N.J.
412, 766 A.2d 1066 (2001) (flexibility in tolling statute of limitations is
permitted because statute codified common law).
9 45 U.S.C.A. § 51.
10 46 U.S.C.A. § 30104.
11 The Death on the High Seas Act, 46 U.S.C.A. § 30301, covers
death from injury one maritime league from shore, but when seamen or
longshoremen are the victims, the judge-made law of Admiralty or other
statutes may apply. See Miles v. Apex Marine Corp., 498 U.S. 19, 111
S.Ct. 317, 112 L.Ed.2d 275 (1990).
12 See Edward C. Bresee, Jr., & Sirce Elliott, Recent Developments
in Aviation Law, 71 J. Air L. & Com. 101, 170 (2006).
13 See, e.g., Helmut Koziol, Recovery for Economic Loss in the
European Union, 48 Ariz. L. Rev. 871, 882 (2006) (noting that cases of
relational loss are a frequent situation in which European countries assign
liability for economic loss).
14 Henry v. Mutual of Omaha Ins. Co., 503 F.3d 425 (5th Cir. 2007)
(holding that insurance company’s denial of benefits was not “wrongful”
and thus not actionable even assuming that the denial was an actual
cause of the insured’s death); Goldizen v. Grant County Nursing Home,
693 S.E.2d 346 (W. Va. 2010) (holding that cause of death listed on death
certificate created issue of factual cause).
15 See, e.g., Williams v. Manchester, 228 Ill.2d 404, 888 N.E.2d 1,
320 Ill.Dec. 784 (2008) (mother has no wrongful death action against
negligent driver for death of fetus); Mack v. Carmack, 79 So. 3d 597 (Ala.
2011) (Wrongful Death Act permits an action for the death of a pre-viable
fetus, overruling prior precedent to the contrary); Carranza v. U.S., 267
P.3d 912 (Utah 2011) (prior to amendment, wrongful death statute
permitted action for death of unborn child).
16 See Cal. Civ. Proc. Code § 377.20.
17 Starkenburg v. State, 934 P.2d 1018 (Mont. 1997) (on the ground
that there could be no damages for which the decedent could have sued if
she died instantly).
18 See Meadows v. Blake, 36 So.3d 1225 (Miss. 2010) (widower of
decedent, as party to malpractice action and legal representative of
decedent, could appeal final judgment of circuit court that was issued
before decedent’s death).
19 Proof must show that there was in fact pain and suffering which
in turn requires consciousness for at least a short interval. See, e.g., Smith
v. Louisiana Farm Bureau, 35 So. 3d 463 (La. Ct. App. 2010) (other driver
heard gurgling sounds coming from decedent’s body a few minutes after
the accident); Royal Indem. Co. v. Pittsfield Elec. Co., 293 Mass. 4, 199
N.E. 69 (1935).
20 See, e.g., Small v. McKennan Hosp., 437 N.W.2d 194 (S.D. 1989).
21 DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 5 A.3d 45 (2010)
(affirming jury verdict where evidence supported a reasonable inference
that a five-year-old boy who drowned was conscious and suffered while he
was drowning, despite there being no eyewitnesses; two experts testified
that to a reasonable degree of medical certainty, the boy, who did not know
how to swim, experienced pain and suffering as he drowned); Nelson v.
Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989) (decedent’s motorcycle was
locked to the defendant’s car at high speeds for five seconds before the
final impact that caused death; pre-impact fear was a recoverable item);
Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986) (recovery for
pre-impact distress was allowed when decedents’ plane broke up and they
fell 10,000 feet to an immediate death).
22 Warner v. McCaughan, 77 Wash.2d 178, 460 P.2d 272 (1969),
superseded by statute as stated in Tait v. Wahl, 987 P.2d 127 (Wash. Ct.
App. 1999).
23 See Carona de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1
(2009).
24 Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112
L.Ed.2d 275 (1990) (under Admiralty powers, Court would limit recovery
to losses incurred during the decedent’s lifetime); Prunty v. Schwantes, 40
Wis. 2d 418, 162 N.W.2d 34 (1968).
25 E.g., Quintero v. Rodgers, 221 Ariz. 536, 212 P.3d 874 (Ct. App.
2009); Berenger v. Frink, 314 N.W.2d 388 (Iowa 1982).
26 E.g., Estate of Kronemeyer v. Meinig, 948 P.2d 119 (Colo. Ct. App.
1997).
27 Mo. Ann. Stat. § 537.090 specifically lists funeral expenses as
recoverable in the death action.
28 In some instances such expenses are allowed on an either/or basis,
with recovery permitted in either the survival or the death action but not
in both. E.g., S.C. Code § 15–5–100.
29 One Nat’l Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008)
(allowing recovery in survival action for “decedent’s loss of life,” measured
by “the value that the decedent would have placed on his or her life”).
30 E.g., Ariz. Rev. Stat. § 14–3110; Wash. Rev. Stat. § 4.20.046.
31 See Quintero v. Rodgers, 221 Ariz. 536, 212 P.3d 874 (Ct. App.
2009); Otani v. Broudy, 151 Wash.2d 750, 92 P.3d 192 (2004).
32 E.g., N.Y. Est. Powers & Trusts Law § 11–3.2 (b).
33 E.g., N.M. Stat. Ann. § 37–2–4; Ohio Rev. Code Ann. § 2311.21;
see also William H. Binder, Publicity Rights and Defamation of the
Deceased: Resurrection or R.I.P.?, 12 DePaul-LCA J. Art. & Ent. L. 297
(2002) (arguing that publicity actions should be treated in the same way as
defamation actions and should not survive the decedent’s death).
34 E.g., Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212, 396
N.E.2d 987 (1979) (infliction of mental distress is harm to person which
survives).
35 Thompson v. Estate of Petroff, 319 N.W.2d 400 (Minn. 1982)
(intentional tort); Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441, 77
A.L.R.3d 1339 (1975) (libel).
36 E.g., Blakeley v. Shortal’s Estate, 236 Iowa 787, 20 N.W.2d 28
(1945) (deceased’s tort was that he committed suicide by slitting his throat
in the plaintiff’s home, causing her emotional distress; the claim survived
the deceased’s death even though harm was not done until after death).
37 E.g., Doe v. Colligan, 753 P.2d 144 (Alaska 1988). Statutes may so
provide. See Cal. Civ. Proc. Code § 377.42.
38 Some courts allow punitive damages against the estate. See
Haralson v. Fisher Surveying, Inc., 31 P.3d 114 (Ariz. 2001); Bennett v.
Gordon, 770 A.2d 517 (Del. Super. Ct. 2001).
39 See Tatum v. Schering Corp., 523 So.2d 1042 (Ala. 1988).
However, Alabama says that its wrongful death damages are punitive in
nature but “nonpenal in effect” because the purpose is to preserve life. See
Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.
1989). Massachusetts formerly applied a punitive measure in death
actions.
40 For more detail and additional citations on several points, see 2
Dan B. Dobbs, Law of Remedies § 8.2(4) (2d ed. 1993).
41 For a discussion of the way in which an individualized approach
historically resulted in racial inequalities in some wrongful death cases,
see Martha Chamallas and Jennifer B. Wriggins, The Measure of Injury
58–62 (2010).
42 For example, in the People’s Republic of China wrongful death
damages are generally awarded at twenty times the previous year’s
average net income in the area in which the court is located or the party is
domiciled, whichever is higher. George W. Conk, A New Tort Code
Emerges in China: An Introduction to the Discussion with a Translation of
Chapter 8—Tort Liability, of the Official Discussion Draft of the Proposed
Revised Civil Code of the People’s Republic of China, 30 Fordham Int’l L.J.
935 (2007).
43 The September 11th Victims Compensation fund relied on
compensation tables to determine awards. See Brian Walker, Lessons that
Wrongful Death Tort Law Can Learn from the September 11th Victim
Compensation Fund, 28 Rev. Litig. 595 (2009) (commending the fund’s
method of relying on more generalized data for both economic and
noneconomic damages).
44 E.g., Freeman v. Davidson, 768 P.2d 885 (Nev. 1989); see
Comment, 44 N.C. L. Rev. 402 (1966).
45 E.g., Death on High Seas Act: Moore-McCormack Lines, Inc. v.
Richardson, 295 F.2d 583, 96 A.L.R.2d 1085 (2d Cir. 1961); Jones Act: Van
Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685
(1937).
46 E.g., Thomas v. Uzoka, 290 S.W.3d 437, 454 (Tex. App. 2009)
(“present value of the benefits, including money and other benefits that
could be valued in terms of money, that the beneficiary could reasonably
expect to have received from the deceased had he survived”).
47 See Armantrout v. Carlson, 166 Wash.2d 931, 214 P.3d 914 (2009)
(permitting recovery for loss of services provided by deceased adult
daughter to mother who was blind and had diabetes).
48 See Lorenz v. Air Illinois, Inc., 168 Ill.App.3d 1060, 119 Ill.Dec.
493, 522 N.E.2d 1352 (1988) (considering a standard instruction allowing
the jury to consider the amount of “money, goods and services the decedent
customarily contributed in the past” and “was likely to have contributed in
the future,” as well as what he “spent for customary personal expenses”);
Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939 (Ind. 2001)
(emphasizing the propriety of evidence showing decedent’s income minus
amount for his own support); Johnson v. Manhattan & Bronx Surface
Transit Operating Auth., 71 N.Y.2d 198, 524 N.Y.S.2d 415, 519 N.E.2d 326
(1988) (gross income is an admissible beginning even though decedent
would have paid taxes).
49 McDonald v. Price, 80 Cal.App.2d 150, 181 P.2d 115 (1947);
McCormick v. Kopmann, 23 Ill.App.2d 189, 161 N.E.2d 720 (1959) (“habits
of industry and sobriety”). Similarly, the decedent’s character or conduct
may suggest that support would not continue. See Dollarhide v.
Gunstream, 55 N.M. 353, 233 P.2d 1042 (1951) (husband drank, attacked
wife). Or that the decedent was of no value to the dependent. See
Quinonez v. Andersen, 144 Ariz. 193, 696 P.2d 1342 (Ct. App. 1984) (death
of wife and evidence that surviving husband beat her admitted, “… all that
Mr. Quinonez lost was a punching bag and a just and fair award for this
loss was zero”).
50 E.g., United States v. Furumizo, 381 F.2d 965 (9th Cir. 1967).
51 See Sanchez v. Schindler, 651 S.W.2d 249, 251 (Tex. 1983) (“If the
rule were literally followed, the average child would have a negative
worth”).
52 E.g., Missouri Pac. R.R. v. Maxwell, 194 Ark. 938, 109 S.W.2d
1254 (1937).
53 E.g., Bullard v. Barnes, 102 Ill.2d 505, 82 Ill.Dec. 448, 468 N.E.2d
1228 (1984).
54 Thorn v. Mercy Mem’l Hosp. Corp., 761 N.W.2d 414 (Mich. Ct.
App. 2008) (holding that economic value of household services that
decedent would have provided to her children were recoverable economic
damages permitted under wrongful death statute).
55 European Group on Tort Law, Principles of European Tort Law
Art. 10:202 cmt. 4 (2005).
56 See One Nat’l Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008);
Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. Chi. L. Rev.
537 (2005).
57 The decedent’s savings from non-earned income such as
inheritance or investments are disregarded in most formulas. E.g., State v.
Mayberry, 415 N.W.2d 644 (Iowa 1987) (“present worth or value of the
estate which the decedent would reasonably be expected to have saved and
accumulated as the result of her efforts between the time of her death and
the end of her natural life had she lived”).
58 E.g., Carrano v. Yale-New Haven Hosp., 279 Conn. 622, 904 A.2d
149 (2006) (“Net earnings are calculated by deducting the decedent’s
income taxes and personal living expenses from his gross earnings”;
plaintiff who presented evidence of gross loss of income but not net could
not recover economic damages); State v. Mayberry, 415 N.W.2d 644, 645
(Iowa 1987) (“That measure is the present worth or value of the estate
which the decedent would reasonably be expected to have saved and
accumulated as the result of her efforts between the time of her death and
the end of her natural life had she lived. Relevant factors in this
determination are the ‘decedent’s age and life expectancy, characteristics
and habits, health, education or opportunity for education, general ability,
other occupational qualifications, industriousness, intelligence, manner of
living, sobriety or intemperance, frugality or lavishness, and other
personal characteristics that are of assistance in securing business or
earning money.’ ”).
59 See State v. Mayberry, 415 N.W.2d 644 (Iowa 1987).
60 Martin v. Atlantic Coast Line R.R. Co., 268 F.2d 397, 91 A.L.R.2d
472 (5th Cir. 1959).
61 Fla. Stat. Ann. § 768.21 provides for a loss to survivors recovery
and in addition for the “Loss of the prospective net accumulations of an
estate” if there is a surviving spouse or lineal descendant, and also in some
cases where there is no recovery for loss to survivors. See also Ohio Rev.
Code Ann. § 2125.02(B) (loss of support, plus loss of prospective
inheritance to heirs at law).
62 E.g., Martin v. Atlantic Coast Line R.R., 268 F.2d 397, 91 A.L.R.2d
472 (5th Cir. 1959) (Federal Employers Liability Act); National Airlines,
Inc. v. Stiles, 268 F.2d 400 (5th Cir.), cert. denied, 361 U.S. 926, 80 S.Ct.
157, 4 L.Ed.2d 121 (1959) (Death on High Seas Act); Yowell v. Piper
Aircraft Corp., 703 S.W.2d 630 (Tex. 1986); James T. Tucker, Annotation,
Wrongful Death Damages For Loss of Expectancy of Inheritance From
Decedent, 42 A.L.R.5th 465 (1996).
63 See Weil v. Seltzer, 873 F.2d 1453 (D.C. Cir. 1989); McClinton v.
White, 497 Pa. 610, 444 A.2d 85 (1982); Criscuola v. Andrews, 82 Wash. 2d
68, 507 P.2d 149 (1973); James O. Pearson, Jr., Annotation, Recovery, in
action for benefit of decedent’s estate in jurisdiction which has both
wrongful death and survival statutes, of value of earnings decedent would
have made after death, 76 A.L.R.3d 125 (1977).
64 See Schaefer v. American Family Mut. Ins. Co., 192 Wis.2d 768,
531 N.W.2d 585 (1995).
65 Pfau v. Comair Holdings, Inc., 15 P.3d 1160 (Idaho 2000).
66 E.g., Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989).
67 Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112
L.Ed.2d 275 (1990) (statutory beneficiaries in FELA, Jones Act, and
general maritime claims can recover pecuniary harms only); In re Air
Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 450 F.Supp. 2d 432
(S.D.N.Y. 2006) (“New York law permits recovery in wrongful death cases
for fair and just compensation for the pecuniary injuries resulting from the
decedent’s death to the persons for whose benefit the action is brought….
New York law does not permit recovery of loss of consortium, mental
anguish, or grief damages.”).
68 In each case, but especially in the case of a homemaker, the value
of the service rendered would have pecuniary value and would be
recoverable. E.g., Missouri Pac. R.R. Co. v. Maxwell, 194 Ark. 938, 109
S.W.2d 1254 (1937); Siebeking v. Ford, 128 Ind.App. 475, 148 N.E.2d 194
(1958); Oliver v. Morgan, 73 S.W.2d 993 (Mo. 1934). But the sums
recovered are not likely to reflect real values or the value of human life.
McGowan v. Estate of Wright, 524 So.2d 308 (Miss. 1988) (upholding a
jury verdict that awarded only funeral expenses for a man who was killed
instantly in a car accident).
69 Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. Chi.
L. Rev. 537 (2005) (arguing that regulatory policy places a much higher
value on life than do wrongful death cases and that to account for
decedents’ welfare losses courts should allow testimony in wrongful death
cases about the victim’s willingness to pay to avoid the risk in question).
See also Gregory C. Keating, Irreparable Injury and Extraordinary
Precaution: The Safety and Feasibility Norms in American Accident Law,
4 Theoretical Inquiries L. 1, 4 (2003) (“Because tort accident law stops
short of imposing on tortfeasors the full cost of the harms they have
inflicted, it falls short in its effort to discourage the accidental infliction of
irreparable physical injury.”).
70 Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604
(2001) (for wrongful death of child, parent can recover for loss of the child’s
society, comfort, and companionship, which have intrinsic value, and
damages are not necessarily dependent on the personal qualities of the
child). Lacking a statutory provision on consortium, Montana permits the
claim for death of an adult child only if the parent-child relationship had
been especially close. Adams v. U.S., 669 F.Supp.2d 1203 (D. Mont. 2009);
Hern v. Safeco Ins. Co. of Ill., 125 P.3d 597 (Mont. 2005). Statutes now
often provide for loss of society recovery. E.g., Alaska Stat. § 09.55.580(c)
(“loss of consortium” and also “loss of assistance or services”); Mass. Gen.
Laws Ann. ch. 229, § 2 (“services, protection, care, assistance, society,
companionship, comfort, guidance, counsel and advice”). In other cases,
courts may regard loss of consortium as being distinct from anguish or
grief and may attribute pecuniary value to it. E.g., Krouse v. Graham, 19
Cal.3d 59, 68, 137 Cal.Rptr. 863, 867, 562 P.2d 1022, 1026 (1977); Green v.
Bittner, 85 N.J. 1, 424 A.2d 210 (1980).
71 See Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989); Wilcox
v. Vermeulen, 781 N.W.2d 464 (S.D. 2010).
72 See Robert L. Rabin, The September 11th Victim Compensation
Fund: A Circumscribed Response or an Auspicious Model?, 53 DePaul L.
Rev. 457 (2003) (noting that noneconomic compensation under the plan
was set at $250,000 per victim with an increased benefit of $100,000 per
partner or child, so that noneconomic benefits to the spouse of a decedent
with two children would have been $550,000).
73 See, e.g., Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1244 (10th
Cir. 2000) (applying New Mexico law); Montalvo v. Lapez, 884 P.2d 345,
364 (Haw. 1999); Kennedy v. Ill. Cent. R.R. Co., 30 So.3d 333 (Miss 2010);
Marcotte v. Timberlane/Hampstead Sch. Dist., 733 A.2d 394, 405 (N.H.
1999). See also Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183
(9th Cir. 2005). But see Frontier Ins. Co. v. Blaty, 454 F.3d 590 (6th Cir.
2006) (affirming lower court’s rejection of hedonic damages).
74 One Nat’l Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008);
McGee v. A C & S, Inc., 933 So.2d 770 (La. 2006).
75 E.g., Ark. Code Ann. § 16–62–102; Del. Code Ann. tit. 10, § 3724;
N.D. Cent. Code § 32–03.2–04; Ohio Rev. Code Ann. § 2125.02(b). See also
Weigel v. Lee, 752 N.W.2d 618 (N.D. 2008). In Shepard v. Capitol Foundry
of Virginia, Inc., 262 Va. 715, 554 S.E.2d 72 (2001), the court upheld a jury
verdict for $1.7 million for the death of a 67-year-old woman, allocating
$1.l million to the surviving husband and $100,000 for each of six children.
The award was evidently based almost entirely on mental anguish and
loss of society, companionship, comfort, and guidance.
76 See Pierce v. Physicians Ins. Co. of Wis., Inc., 692 N.W.2d 558
(Wis. 2005) (holding that after settlement of wrongful death action over
stillbirth of infant, mother could pursue separate claim of negligent
infliction of emotional distress).
77 E.g., City of Tucson v. Wondergem, 105 Ariz. 429, 466 P.2d 383
(1970); Hern v. Safeco Ins. Co. of Ill., 125 P.3d 597 (Mont. 2005); Sanchez
v. Schindler, 651 S.W.2d 249, 251 (Tex. 1983). See Annotation, Recovery of
Damages for Grief or Mental Anguish Resulting from Death of a Child—
Modern Cases, 45 A.L.R.4th 234 (1986).
78 See, e.g., Wood v. Wayman, 47 So.3d 1212 (Ala. 2010) (citing
Alabama case law holding that in the “context of a wrongful-death action,
a ‘personal representative’ acts ‘as agent by legislative appointment for the
effectuation of a legislative policy of the prevention of homicides through
the deterrent value of the infliction of punitive damages’ ”); Killough v.
Jahandarfard, 578 So.2d 1041 (Ala. 1991).
79 See Rubeck v. Huffman, 54 Ohio St.2d 20, 374 N.E.2d 411 (1978).
80 See Alsenz v. Clark County Sch. Dist., 109 Nev. 1062, 864 P.2d
285 (1993).
81 Portwood v. Copper Valley Elec. Ass’n, Inc., 785 P.2d 541 (Alaska
1990) (pecuniary injury requirement applies only to compensatory
damages).
82 See Boies v. Cole, 99 Ariz. 198, 407 P.2d 917 (1965); Vickery v.
Ballentine, 293 Ark. 54, 732 S.W.2d 160 (1987).
83 E.g., Mo. Stat. Ann. § 537.090.
84 N.Y. Est. Powers & Trusts Law § 5–4.3(b); N.C. Gen. Stat. § 28A–
18–2(b).
85 Portwood v. Copper Valley Elec. Ass’n, Inc., 785 P.2d 541 (Alaska
1990); Lewis v. Hiatt, 683 So.2d 937 (Miss. 1996); Roach v. Jimmy D.
Enters., Ltd., 912 P.2d 852 (Okla. 1996); McCourt v. Abernathy, 318 S.C.
301, 457 S.E.2d 603 (1995); Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d
1179 (Utah 1983) (suggesting that allowance represents a trend); Clymer
v. Webster, 156 Vt. 614, 596 A.2d 905 (1991).
86 However, in other states the representative is not required to be
the estate’s administrator or executor. See, e.g., In re Estate of Johnson,
231 P.3d 873 (Wyo. 2010).
87 See In re Estate of Maldanado, 117 P.3d 720 (Alaska 2005)
(“Survivorship damages may be sought by the personal representative for
the benefit of the estate, not for the benefit of any particular survivor”);
Antisdel v. Ashby, 688 S.E.2d 163, 167 (Va. 2010).
88 Ariz. Rev. Stat. § 12–612 C (distribution “in proportion to their
damages”); Kan. Stat. Ann. § 60–1905; see Chang v. State Farm Mut.
Auto. Ins. Co., 182 Wis. 2d 549, 514 N.W.2d 399 (1993). See also Arnold v.
Turek, 185 W.Va. 400, 407 S.E.2d 706 (1991) (under then existing statute,
damages were to include sums for loss of support of various persons but
were to be distributed according to the laws of descent and distribution);
In re Estate of Bennett, 308 P.3d 63 (Mont. 2013).
89 See Lawrence v. Beverly Manor, 273 S.W.3d 525 (Mo. 2009); Ruiz
v. Podolsky, 50 Cal.4th 838, 237 P.3d 584 (2010); Woodall v. Avalon Care
Center-Federal Way, LLC, 231 P.3d 1252 (Wash. Ct. App. 2010) (holding
that wrongful death claims are not bound by arbitration agreements but
that survival claims are).
90 Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661 (Ala.
2004); Cleveland v. Mann, 942 So.2d 108 (Miss. 2006); In re Golden
Peanut Co., LLC, 298 S.W.3d 629 (Tex. 2009). But see Covenant Health &
Rehab. of Picayune, LP v. Estate of Moulds, 14 So.3d 695 (Miss. 2009)
(rejecting arbitration clause in nursing home wrongful death case based on
unconscionability).
91 See Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S.Ct.
2772 (2010).
92 E.g., Kan. Stat. Ann. § 60–1902 (heirs).
93 See, e.g., Ablin v. Richard O’Brien Plastering Co., 885 P.2d 289
(Colo. Ct. App. 1994) (only surviving relatives were siblings, but siblings
were not “heirs” as Colorado understands that term).
94 As a matter of equal protection, states can no longer refuse a
child’s recovery merely because the child is illegitimate. Levy v. Louisiana,
391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). Equally, a parent of an
illegitimate child can recover for the child’s death. Glona v. American
Guarantee & Liab. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441
(1968).
95 To avoid a problem of excluding a stepchild, the court in Lawson v.
Atwood, 42 Ohio St.3d 69, 536 N.E.2d 1167 (1989), came up with the
conclusion that the deceased had become the child’s parent, even though
he had not adopted the child.
96 See Cal. Civ. Pro. Code § 377.60 (domestic partner has standing to
bring wrongful death action), addressed in Armijo v. Miles, 26 Cal.Rptr.3d
623, 127 Cal.App.4th 1405 (2005) (permitting wrongful death recovery by
same-sex partner). See also 15 Vt. Stat. Ann. §§ 1204(a) & 1204(e)(2) (civil
union permitted between persons of same sex, generally granting rights of
married persons and specifically including right to sue for wrongful death).
Cf. Ceja v. Rudolph & Sletten, Inc., 302 P.3d 211 (Cal. 2013) (subjective
good faith belief that marriage was valid).
97 See Cal. Fam. Code § 297 (defining domestic partners).
98 Persons in a similar position to a family member who “had been in
fact or would be maintained by the deceased” may also recover for the
decedent’s wrongful death. European Group on Tort Law, Principles of
European Tort Law Art. 10:202 cmt. 2 (2005).
99 Hughes v. PeaceHealth, 344 Or. 142, 178 P.3d 225 (2008)
(upholding and applying such a cap in the context of a medical provider).
100 See Tex. Civ. Prac. & Rem. Code § 74.303 (capping health care
liability claims for wrongful death or survival actions at $500,000 per
claimant for all damages), applied in In re Columbia Med. Ctr. of Las
Colinas, 306 S.W.3d 246 (Tex. 2010); W. Va. Code § 55–7B–8 (capping
compensatory damages against health care providers at $500,000 per
occurrence for death and certain serious injury claims).
101 Alaska Stat. § 09.17.010 (noneconomic damages for wrongful
death or personal injury may not exceed $400,000 or $8,000 per year of
remaining life expectancy, whichever is higher); Alaska Stat. § 09.55.580
(where decedent has no spouse, children, or dependents, damages are
limited to pecuniary losses); Colo. Rev. Stat. § 13–21–203 (capping
recovery for noneconomic losses at $250,000 where the decedent does not
have certain dependents unless there was a felonious killing); Kan. Stat.
Ann. § 60–1903(a) (noneconomic damages capped at $250,000); Wis. Stat.
Ann. § 895.04(4) (nonpecuniary damages for wrongful death limited to
$500,000 for minors and $350,000 for adults).
102 For statutes reducing recovery based on some collateral source
payments, see: Colo. Rev. Stat. § 13–21–111.6; Conn. Gen. Stat. § 52–225a;
Or. Rev. Stat. § 31.580.
103 For examples of constitutional provisions, see Ariz. Const. art. II, §
31 (“No law shall be enacted in this state limiting the amount of damages
to be recovered for causing the death or injury of any person”); Ark. Const.
art. 5, § 32 (providing for workers compensation laws and providing that
“otherwise no law shall be enacted limiting the amount to be recovered for
injuries resulting in death or for injuries to persons or property; and in
case of death from such injuries the right of action shall survive, and the
General Assembly shall prescribe for whose benefit such action shall be
prosecuted”); Thompson v. KFB Ins. Co., 850 P.2d 773 (Kan. 1993). For
statutes that disclaim limits, see Haw. Rev. Stat. § 431:10C–306 (allowing
liability for death actions from motor vehicle accidents as an exception to
no fault insurance as the exclusive remedy in other circumstances).
104 E.g., Fla. Stat. Ann. § 768.19 (“When the death of a person is
caused by the wrongful act, negligence, default, or breach of contract or
warranty of any person … and the event would have entitled the person
injured to maintain an action and recover damages if death had not
ensued….”); Mo. Ann. Stat. § 537.080 (when “the death of a person results
from any act, … which, if death had not ensued, would have entitled
[decedent] to recover damages in respect thereof …”); Wy. Stat. 1977 § 1–
38–101.
105 See Griffis v. Wheeler, 18 So.3d 2 (Fla. Dist. Ct. App. 2009)
(statutory rule that certain intoxicated persons could not recover for
personal injury barred wrongful death suit as well); Cramer v. Slater, 146
Idaho 868, 204 P.3d 508 (2009) (holding that when professionals fail to
assess and prevent suicide and patient commits suicide, matter is one of
comparative fault and jury is charged with assigning liability).
106 Winding River Vill. Condo. Ass’n, Inc. v. Barnett, 218 Ga.App. 35,
459 S.E.2d 569 (1995) (beneficiary’s contributory negligence would reduce
her share of award).
107 E.g., Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861
(1967) (barring both wrongful death and survival claims).
108 In re Estate of Infant Fontaine, 128 N.H. 695, 519 A.2d 227 (1986);
Teeter v. Missouri Highway & Transp. Comm’n, 891 S.W.2d 817 (Mo.
1995) (defendant could claim contribution for the negligence of one of two
beneficiaries).
109 See Byrne v. Schneider’s Iron & Metal, Inc., 190 Mich.App. 176,
475 N.W.2d 854 (1991); cf. In re Estate of Infant Fontaine, 128 N.H. 695,
519 A.2d 227 (1986) (death action with survival attributes). It is usually
said that this is the majority rule. See Henry Woods & Beth Deere,
Comparative Fault 9:4 (3d ed. 1996); 2 Stuart M. Speiser, Charles F.
Krause & Juanita M. Madole, Recovery for Wrongful Death and Injury
5:10 (3d ed. Looseleaf).
110 Martin v. Naik, 300 P.3d 625 (Kan. 2013) (negligent treatment
resulting in coma and later death; survival statute did not run for patient
because he could not reasonably ascertain that he had a cause of action,
and wrongful death statute did not run for survivors because they did not
have a cause of action until the patient died).
111 Chapman v. Cardiac Pacemakers, Inc., 105 Idaho 785, 673 P.2d
385 (1983); Mummert v. Alizadeh, 77 A.3d 1049 (Md. 2013) (statute of
limitations on decedant’s claim no bar); Carroll v. W.R. Grace & Co., 252
Mont. 485, 830 P.2d 1253 (1992); Fernandez v. Kozar, 107 Nev. 446, 814
P.2d 68 (1991). Accord Restatement Second of Torts § 899 cmt. c (1979).
Tolling may also apply in the case of wrongful concealment. Alldedge v.
Good Samaritan Home, Inc., 9 N.E.3d 1257 (Ind. 2014). A variant of this
problem is whether a survivor can amend a complaint brought by the
plaintiff during his lifetime, against the defendant and in a timely
manner, to include a wrongful death claim after the plaintiff’s death,
where the statute of limitations or a statute of repose has expired by that
time. See Sisson v. Lhowe, 460 Mass. 705, 954 N.E.2d 1115 (2011)
(allowing the substitution of a wrongful death claim).
112 Estate of Genrich v. OHIC Ins. Co., 318 Wis.2d 553, 769 N.W.2d
481 (2009).
113 Henderson v. MeadWestvaco Corp., 23 So.3d 625 (Ala. 2009)
(based on statutory language). Russell v. Ingersoll-Rand Co., 841 S.W.2d
343 (Tex. 1992) (asserting that this is the more authoritative position).
Accord Nelson v. American Red Cross, 26 F.3d 193 (D.C. Cir. 1994); Brown
v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004) (original
claim for negligence dismissed as untimely; subsequent wrongful death
claim, being “derivative,” must also be dismissed); Jenkins v. Pensacola
Health Trust, Inc., 933 So. 2d 923 (Miss. 2006); Edwards v. Fogarty, 962
P.2d 879 (Wyo. 1998).
114 Cf. Kronemeyer v. Meinig, 948 P.2d 119 (Colo. Ct. App. 1997)
(earlier wrongful death suit and settlement did not bar survival claim).
115 740 Ill. Comp. Stat. Ann. § 180/1 (foreclosing death claim if
judgment rendered or settlement made in decedent’s lifetime); cf. D.C.
Code Ann. § 16–2701 (barring suit if victim “recovered damages” in her
lifetime).
116 Hutton v. Davis, 26 Ariz.App. 215, 547 P.2d 486 (1976); Union
Bank of Cal., N.A. v. Copeland Lumber Yards, Inc., 213 Or.App. 308, 160
P.3d 1032 (2007); see Vitauts M. Gulbis, Annotation, Judgment in Favor
Of, or Adverse To, Person Injured as Barring Action For His Death, 26
A.L.R.4th 1264 (1981).
699
Chapter 29
EMOTIONAL HARM
Analysis
A. INTRODUCTION TO EMOTIONAL HARM
§ 29.1 Introduction to Emotional Distress and Harm in Tort Law
§ 29.2 Stand-Alone Emotional Distress as a Tort in Itself: Policy
Concerns
§ 29.3 Stand-Alone Emotional Distress as a Tort in Itself: Historical
Development
B. INTENTIONAL OR RECKLESS INFLICTION OF EMOTIONAL
DISTRESS
§ 29.4 Overlapping or Duplicating Claims for Emotional Distress
§ 29.5 Intentional Infliction of Emotional Distress: Rules of Liability
§ 29.6 Common Characteristics of Extreme and Outrageous Conduct
§ 29.8 Intentional Infliction and Emotional Distress of Third Persons
C. NEGLIGENT INFLICTION OF EMOTIONAL HARM
§ 29.9 Negligent Infliction of Emotional Harm: General Rules of
Liability
§ 29.10 Emotional Harm Arising from Risks or Harms to Others
§ 29.12 Emotional Distress Arising from Direct Risks of Physical Harm
§ 29.14 Emotional Distress from False or Erroneous Information
§ 29.15 Duties of Care to Protect Emotional Well-Being Independent of
Physical Risks
__________
A. INTRODUCTION TO EMOTIONAL HARM

§ 29.1 Introduction to Emotional Distress and
Harm in Tort Law
General recognition of emotional distress. Courts have long
recognized that tortfeasors should be responsible for causing
distress, emotional harm, anxiety, diminished enjoyment, pain,
loss of autonomy, and similar intangible harms. The exact form of
the intangible harm seldom matters. These harms can be referred
to as distress or as emotional harm.
Two radically different approaches to emotional harm. Courts
approach emotional distress damages in two radically different
ways, depending on whether the emotional harm is considered
“parasitic” to another tort or a “stand-alone” emotional harm claim.
Emotional distress as an item of damages in some other tort
cause of action. In the first type of claim, emotional distress
damages are merely items of damage in the recovery for some
other tort. A plaintiff who establishes a right to recover for
emotional distress under a tort cause of action such as assault,
battery, false imprisonment, libel, malicious prosecution, invasion
of privacy, nuisance, or ordinary negligence, can recover
700
full damages for emotional distress without any special limiting

rules such as those requiring physical manifestations of emotional
distress or serious or severe distress.1 In cases in which the
defendant’s tortious conduct has produced some other tort of which
distress is a part, the scope of recoverable distress damages can be
quite broad.2
Parasitic damages for emotional harm are usually rejected in
breach of contract claims, at least where the claim is essentially
economic in nature,3 not aimed at protection of emotional well-
being.4 In the same way, recovery of emotional distress damages as
an item of damages for infliction of a purely financial tort, where
there is no physical harm risked or caused, may be inappropriate.5
Stand-alone emotional distress as a tort in itself. In the second
type of emotional harm claim, there is no other tort and the
plaintiff must claim that infliction of emotional distress is itself a
tort. The second kind of claim is usually subject to substantial
limitations. Even so, in the second kind of claim the plaintiff may
establish a separate tort either for intentional infliction of
emotional distress (IIED) or negligent infliction of emotional
distress (NIED).6 At times, the two approaches overlap, or
sometimes collide, when a plaintiff claims both that emotional
distress is an element of damage, and brings a separate cause of
action for intentional or negligent infliction of emotional distress.
§ 29.2 Stand-Alone Emotional Distress as a Tort in
Itself: Policy Concerns
Differing views on the stand-alone claim. The problem of stand-
alone emotional distress has fascinated many lawyers and judges,
who have written about it at length.7 Legal professionals differ
considerably in their attitude toward recovery for emotional
701
distress. Some see the claim as trivial, as a disruption of the

judicial process, or even as presenting risks of outright fakery.8
Others, on the contrary, contend that courts, perhaps reflecting
society at large, have not only perpetuated an outmoded dualism
but have devalued the importance of emotional life by their caution
in granting recovery.9
Doubts that emotional distress is genuine. It is certainly true
that on the whole, courts have been extremely cautious in allowing
claims for stand-alone emotional harm.10 In the past, courts often
expressed concerns about the reality of emotional distress, but in
most cases the reality or existence of the distress is not in doubt. If
you are seriously threatened with future harm by a hostile group of
masked men who gather around you in a circle, the rest of us
should not doubt that you suffered fear. If your child is crushed by
a car, we can believe you suffered anguish. Although stand-alone
emotional harm is a real and an important concern, emotional
harm does have some special characteristics that call for a degree
of caution.
The exhaustion of funds argument. One broadly expressed
concern is that defendants who must pay emotional harm damages
to the first plaintiff may have no funds left for payment of more
serious claims for pain or actual financial costs suffered by later
plaintiffs.11 This problem, however, is not really about emotional
harm claims but about equitable distribution to multiple victims
when the wrongdoer’s funds are inadequate to cover the harms he
has inflicted. The problem occurs not only with emotional harm
claims but also with punitive damages awarded to an early
claimant and even with ordinary economic loss claims paid to the
first plaintiff and leaving nothing for claims of the second. It may
be that the legal solution should aim at the whole problem and not
merely at the isolated instance of it when emotional harm is
claimed.12 More particular concerns are narrower.
Inability to estimate damages. First, emotional harm, as distinct
from the financial costs of treatment, cannot ordinarily be
represented in dollar awards. We may be confident that the
plaintiff suffers distress or some other form of diminished
enjoyment in life, but seldom can we give reasons why the distress
is worth $100,000 rather than one-tenth as much or ten times as
much. That makes us uncertain about the justice and even-
handedness of awards. Judicial review is correspondingly difficult.
The same difficulty increases risks that the trier will be more
influenced by personal feelings or biases for or against the
defendant or the plaintiff than by any good estimate of the harm.
Problems of this ilk create problems in justice and also in trial
strategy and settlement. A defendant who estimates the chance of
losing at 50% may offer to settle for something like 50% of the
plaintiff’s damages. If damage awards for emotional harm are
erratic
702
because they have no objective measurement, settlement will be
erratic, too, or will depend on extraneous factors. The same point,
however, applies to awards for physical pain and suffering, so
perhaps it should have little weight as long as courts are willing to
award damages for physical pain. Another possibility is to create
some presumptive measures of emotional harm compensation.13
What should be expected of the plaintiff in mitigation? Second,
we may be confident that distress is real but quite uncertain how
deep-seated it is and what to expect of the plaintiff herself by way
of mitigation. The law is usually compelled to attribute a degree of
free will to competent actors. An injured person cannot heal a
broken leg by acquiring a better attitude about it. But some
persons cope with distress better than others; everyone suffers
distress in some measure and most people learn to get over or at
least to minimize distress over a period of time. Others nurse their
distress and build it up. Even under a thin skull rule, the
defendant probably should not be liable for the plaintiff’s
maladaptive attitudes about distress.14
Do awards for distress achieve compensation? Third, we cannot
at this juncture be confident about whether awards for distress
accomplish compensation. Awards are not likely to approximate
what the plaintiff would have paid to avoid the injury or would
have accepted to suffer the injury. No matter what the award for
emotional distress, the plaintiff may remain distressed. Indeed, it
is possible that awarding a person substantial sums for distress
will confirm and reinforce the distress and so perpetuate it.15
Whether this is true or not, it is easy to see that if you recover
damages for lost wages, they replace your wage loss, while if you
recover damages for pure emotional harm they don’t replace your
peace of mind.
Overexaction. A more subtle variation on this problem is that if
a recovery of damages does in fact provide some solace to the
victim, the solace may be small compared to the harm done the
defendant. It is true that the defendant was by hypothesis the
guilty party and that an award can at least demonstrate society’s
support for the victim; but an ounce of solace to the plaintiff that
costs a pound of pain to the defendant reduces the total happiness
in an unhappy world. Perhaps punitive damages would work better
than awards for distress if the defendant is truly deserving of
punishment, for punitive damages would focus on the defendant’s
misconduct and guide damages proportionately.
Flood of litigation. Finally, in some situations (but not all)
courts do not see any reasonable limit on the number of emotional
harm claims that can be brought as the result of a single tort. Not
only may some plaintiffs pursue trivial affronts, but a large
number of people might suffer some degree of distress as a result of
a single tort. A negligent or intentional killing might shock
millions who watch it on television or read about it, all of whom
might sue. This argument is grounded in deep pessimism about the
judiciary’s ability to fulfill its function in determining disputes. As
Dean Prosser wrote of the flood of litigation concern, “It is the
business of the law to remedy wrongs that deserve it, even at the
expense of a ‘flood of litigation,’ and it is a pitiful concession of
703
incompetence on the part of any court of justice to deny relief on

such grounds.”16 The argument about large numbers of trivial
claims also probably miscalculates plaintiff incentives. Although
lawyers may misjudge the merits of their clients’ cases, they have
little incentive to sue on claims that will not pay off, since their fee
will only be generated by a recovery.
What caution suggests. The reasons for caution about emotional
distress claims are not reasons to ignore or reject all such claims.
Indeed, they provide some guidance for allowing some claims.
When common experience tells us that the injury is real and
tortiously produced, the reasons for caution suggest that judges
can focus on careful assessment of damages rather than on blanket
exclusions of stand-alone emotional harm. More radically, it may
be suggested that the focus on sudden, shocking events and the
dramatic emotional injury that results has distracted attention
from chronic emotional harm that may be more devastating—the
grief and absence from loss of a loved one rather than the shock at
seeing his death.
§ 29.3 Stand-Alone Emotional Distress as a Tort in
Itself: Historical Development
Historical development of liability for stand-alone emotional
distress claims. Although stand-alone claims for infliction of
distress have expanded significantly over the last fifty years, those
claims are not without significant historical precedent. Indeed,
even one hundred years ago courts permitted claims for some kinds
of purely emotional harm.
Carriers and innkeepers. In the earlier law, while damages
generally could not be recovered for stand-alone emotional harm,
courts recognized an exception by imposing a special duty upon
common carriers17 and innkeepers18 to exercise civility toward
passengers. This traditional exception involved a contractual
relationship between the plaintiff and the defendant. Early cases
purported to find an implied contract of courteous treatment.19
Some courts applied the same rule to telegraph companies, who
might, for instance, be held liable for emotional distress caused by
failing to deliver a death notice or the like.20 This rule went far
beyond a duty to avoid severe emotional harm; it imposed liability
for such minor misconduct as insulting or profane language. The
special liability was somewhat peculiar and courts today might
well conclude that liability for a carrier’s insult alone is no longer
justified because more finely tuned rules now apply to all
defendants.21 However, the liability of carriers and innkeepers
probably played a role in developing a degree of responsibility for
emotional harm.
Interference with dead bodies. Courts also allowed recovery of
emotional distress in another class of cases—those involving some
kind of mishandling of dead bodies.22 Indeed, the common law
action for “tortious interference with a dead body” still survives
704
in some jurisdictions.23 In earlier cases, courts purported to find

a property or quasi-property interest in the body. Some courts still
use quasi-property reasoning.24 However, the property theory has
been generally dismissed as a fiction and displaced in favor of
analyzing the claim in terms of emotional distress.25
Generalizing liability. Over time, still other cases seemed to
demand relief. Courts would sometimes find a battery or other tort
so that emotional harm damages could be recovered, if need be by
stretching rules to find a physical touching or at least physical
harm. In a well-known English case, the defendant deliberately
told the plaintiff that her husband had been “smashed up” in an
accident and that she must go to him immediately. The victim of
this atrocious behavior was seriously distressed and suffered some
physical consequences of that distress. The court appeared to think
that the physical harm as well as the emotional distress must have
been intended and partly on that ground recognized liability.26
The First Restatement of Torts. As the exceptions to the rule
against liability accumulated, courts and lawyers gradually began
to realize that the traditional rule against liability for emotional
harm alone no longer accurately stated what courts were doing in
fact. In a 1948 Supplement to the First Restatement of Torts, the
American Law Institute for the first time recognized a separate
tort for intentional infliction of emotional distress. The special
rules and exceptional cases are now largely subsumed in this
newly recognized tort.
The Second and Third Restatements of Torts. As revised in the
Restatement Second, the American Law Institute recognized a
cause of action for intentional infliction of emotional distress only
when (1) the defendant causes severe emotional distress, (2)
intentionally or recklessly, and (3) by extreme and outrageous
conduct.27 Provisions were also enacted for intended emotional
harm related to risk of bodily harm and unintended emotional
distress that results in bodily harm.28 The Second Restatement
also provided for liability for negligent infliction of emotional
disturbance but only to the extent that physical harm resulted.29
The current scope of stand-alone emotional distress claims under
the Restatement Third of Torts and contemporary case law is
discussed below.30 When stand-alone emotional distress as a
separate tort, the Restatement Third recognizes two versions of the
claim, one for intentional infliction of emotional distress (IIED),
the other for negligent infliction (NIED).
705
B. INTENTIONAL OR RECKLESS INFLICTION OF

EMOTIONAL DISTRESS
§ 29.4 Overlapping or Duplicating Claims for
Emotional Distress
Overlapping causes of action. Given various ways in which tort
causes of action can redress emotional distress, a question of both
practical and theoretical importance arises—can the plaintiff
recover both for stand-alone emotional distress and for other torts
that permit a recovery for emotional distress? The question is not
whether the plaintiff who is battered or defamed can recover for
emotional distress. The question is whether a separate cause of
action can be stated for emotional distress on facts that are
addressed by the law of some more specific tort like battery or
defamation. The answer matters in at least two distinct kinds of
cases. In the first, the plaintiff has a viable claim for, say, battery
and wishes to claim emotional distress arising in whole or part
from that same battery. A second pattern involves an emotional
harm claim that may seem to be asserted to avoid some limitation
imposed by the rules of the more specific tort.
Reasons to permit dual claims. In the first case, one reason to
permit the two claims is that they address somewhat different
actionable conduct. The battery claim is limited to the unwanted
touching and its effect, while part of the emotional distress may
have resulted from a whole sequence of events preceding the
battery as well as from the battery itself. To reject the emotional
distress claim in those circumstances would be to impose artificial
limitations on the plaintiff’s recovery. Another reason to permit the
claim is to allow for alternate pleading. The plaintiff’s lawyer
cannot be sure in advance whether the jury would render a
favorable verdict on the battery claim and ought not be forced to
choose between two claims when the facts are sufficient for both.
For these reasons, courts that allow both the battery and the
emotional distress claim in these circumstances seem well
justified.31
Duplicative damage awards. The only obvious reason to forbid
the plaintiff from suing on both a battery and an intentional
infliction of emotional distress theory is that even well-instructed
jurors may tend to feel that two claims means two sets of emotional
distress damages. The jury may award emotional distress as an
item of damages in the battery claim and again separately in the
separate emotional harm claim. Some overlap cases raise puzzling
damage problems that are not so readily resolved.32
Artful pleading. A second pattern of overlapping claims involves
an emotional harm claim that may seem to be asserted to avoid
some limitation imposed by the rules of the more specific tort. For
instance, the battery statute of limitations may foreclose the
battery claim. If a stand-alone claim for emotional distress can be
asserted in such a case, it looks very much as if the court is
permitting the plaintiff to circumvent the statute. More stringent
policy concerns might arise in defamation and false light privacy
cases, where constitutional free-speech rules might preclude the
defamation and privacy claim altogether. If the plaintiff can simply
substitute an emotional distress claim based on the same facts and
recover the same damages that would be recoverable for emotional
706
distress in a defamation or privacy claim, then the plaintiff
penetrated the constitution’s shield for free speech.33
End run versus different underlying policies. It seems axiomatic
that rules designed to preclude a claim should not be subverted by
renaming it and claiming the same damages on the same facts. Yet
it may be difficult to determine when this policy should apply. The
rules of assault permit recovery for harm that is essentially a form
of emotional distress when the defendant intentionally puts the
plaintiff in apprehension of an imminent unwanted touching, but
preclude recovery for threats of a touching that lies in the future. A
defendant who threatens to castrate the plaintiff at some indefinite
time in the future is not committing an assault, and the plaintiff
could not recover on an assault theory. The plaintiff, however,
should be and has been permitted to claim an intentional infliction
of emotional distress on similar facts.34 That seems right. The
emotional distress claim was recognized in part because the
limitations of the assault claim were too narrow. There is thus no
overarching policy of the law to prevent recovery on these facts.
Similarly, a plaintiff who loses a claim for negligent or intentional
infliction of emotional distress because her distress is not regarded
as sufficiently severe might nevertheless succeed on a privacy
claim based on intrusion.35 Because privacy law protects against
intrusions into private matters whether or not they cause severe
harm, the difference in outcome seems justified.
Case by case adjudication. In contrast, if the plaintiff could not
prevail in the privacy case because the defendant’s conduct was a
protected report by a news organization, the tort of IIED should
also be rejected.36 This analysis suggests that when facts and
damages overlap, case by case assessment is required to determine
when the policy of precluding one claim operates to preclude the
other as well. Some courts have specifically said that the
intentional infliction claim cannot be used to make an end run
around the limitations imposed by other torts,37 or that the
intentional infliction claim is a gap filler, to be used only when
some other tort like battery or false imprisonment is not
established on the facts.38
§ 29.5 Intentional Infliction of Emotional Distress:
Rules of Liability
Elements under the Restatement Third of Torts. The basic
contemporary claim for intentional (or reckless) infliction of
emotional disturbance is well stated by the Restatement Third of
Torts. That authority provides: “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
707
harm, also for the bodily harm.”39 Under this formulation it is

said that the intentional infliction of emotional harm tort, also
called the tort of “outrage,” has three elements (1) extreme and
outrageous conduct by the defendant, (2) intent to cause severe
distress, or at least recklessness in risking it, and (3) severe
distress caused by the conduct.
Intent requirement. As elsewhere in the law of torts, intent can
be shown either by evidence that the defendant acted with a
purpose or desire to accomplish the harm, or by evidence that such
harm was substantially certain to occur.40 In the Restatement, as
in most states, reckless or willful attitude will also suffice to meet
the requirement.41
Additional elements. Neither intent nor recklessness alone
suffice to make out the case; the conduct itself must be both
extreme and outrageous. The requirement of extreme and
outrageous conduct not only serves to limit the tort, but also to
provide strong evidence of intent and evidence that severe harm in
fact resulted.42 Given evidence of severe distress, the plaintiff is
not required to show that she suffers physical symptoms or
harm.43 Almost all courts recognize the tort and apply these basic
rules.44
§ 29.6 Common Characteristics of Extreme and
Outrageous Conduct
Distinguishing extreme and outrageous conduct. In the famous
parlance of the Restatement Second, conduct was extreme or
outrageous if “the case is one in which the recitation of the facts to
an average member of the community would arouse his resentment
against the actor, and lead him to exclaim, ‘Outrageous!’ ”45 Such a
colorful description of anticipated audience response gives a sense
of the moral approbation that underlies the tort and the extent to
which the tort is meant to capture “a very small slice of human
behavior.”46 Courts often join the Restatement in saying that
misconduct causing emotional harm alone is actionable only when
it is utterly intolerable and goes beyond all bounds of civilized
society.47 By articulating conduct that is beyond the bounds of
human decency, the tort plays an important but difficult role in
articulating social norms.48
708
Function of terms “extreme” and “outrageous.” But to say that

recovery is reserved for truly outrageous conduct is not to provide
anything like a predictable standard. The Restatement Third
treats the terms extreme and outrageous as each serving an
important definitional role—the “extreme” requirement filtering
out poor conduct that is common such as marital infidelity. And the
outrageous requirement filtering out atypical conduct that
nevertheless lacks sufficient wrongful character to be actionable.49
Much of the case law that addresses the extreme and outrageous
requirements focuses on sifting out ordinary affronts from
actionable misconduct. Insult, affront, indignity, trivial annoyance,
or the like, are all excluded from the outrage category (although
perhaps still sufficient in some common carrier cases).50 Similarly,
defendants are given latitude in pursuing their own legitimate
interests, even if they exceed the bounds of good taste, decency,
and fairness. This latitude for legitimate self-interest is not a
matter of privilege; it rather tends to show that the conduct is not
outrageous.51 Thus employers are not outrageous in evaluating an
employee’s work, even if the evaluation is unfair and subjects the
employee to humiliation.52 Creditors can bill the plaintiff for debts
claimed, even if the timing of the bill is crude or insulting. For
example, if a lawyer terminates a sexual or romantic relationship
with a former client and then sends her a bill for legal services
previously rendered, he adds insult to injury, but his conduct is not
actionable; it is only an inappropriate way of pursuing his own
interests.53
Four markers of outrage. In drawing the line between extreme
and outrageous conduct and other conduct, four important markers
lend support to a finding of outrage: the defendant (1) abuses
power or position, that is, by using a position of dominance;54 (2)
takes advantage of or emotionally harms a plaintiff known by the
defendant to be especially vulnerable;55 (3) repeats or continues
undesirable acts,56 particularly when
709
the plaintiff cannot avoid them;57 or (4) commits acts of physical

violence,58 or threats of violence to plaintiff,59 a person,60 or
occasionally property,61 in which the plaintiff is known to have a
special interest. In each of these instances the defendant uses the
parties’ inequality to inflict emotional harm without regard for the
plaintiff’s interests.62 Small children might recover for outrage if
they witness the defendant beating their mother, even if the
beating occurs only once and no act at all is directed at the
children.63 When the markers are absent or reversed, for example,
when the plaintiff is an employee in no position of authority or
power over the defendant, it will be difficult indeed to find that the
employee’s acts were outrageous.64 However, these markers are
not required elements of proof. Moreover, other factors can come
into play. For example, the defendant’s treatment of the plaintiff in
violation of some identifiable public policy may in itself tend to
prove outrage.65 Misuse of positions of trust may also create
actionable outrage.66 Additional examples of conduct judged to be
extreme and outrageous, or not, can be instructive.67 When
reasonable people can differ, whether conduct is extreme and
outrageous is a jury question.68
710
Discrimination and words causing emotional harm. In earlier

days of the outrage tort, the defendant’s conduct was sometimes an
act of violence that shocked or frightened a witness, or was an
exceedingly cruel prank aimed at a single vulnerable individual
such as a delusional older person.69 Contemporary cases
sometimes deal with distress resulting from discrimination, which
may take many forms, including the use of words. Quite a few state
and federal statutes that bar discrimination on the basis of race,
gender, or disability, and permit recovery of emotional distress
damages, sometimes as the only substantial ingredient in the
claim.70 Discrimination and harassment of the type prohibited in
these statutes can also found a claim of intentional infliction of
emotional distress.71 However, some First Amendment free speech
and freedom of religion limits may apply.72
Severe harm required. The tort for intentional infliction of
emotional distress requires not only that the defendant intend
severe distress, but also that such distress in fact results from the
defendant’s outrageous conduct. The point is often put
emphatically by saying that the distress must be so severe that no
reasonable person should be expected to endure it,73 but sometimes
courts have used a subjective test, saying the plaintiff need prove
only that she herself experienced severe distress.74
Severity judged by outrageousness of the conduct. All courts
require some kind of evidence of severe distress. Consequently,
when the defendant’s conduct is extreme enough that fact tends to
prove severe distress,75 the question of causation and severity of
the distress is for the jury.76 It is, of course, for the court to
determine whether the evidence would warrant reasonable people
in finding severe distress.77 When the defendant’s conduct is not so
extreme, the plaintiff may need proportionately stronger
711
evidence that her distress is severe.78 Medical testimony is not

ordinarily required to demonstrate either the severity of the
distress or its cause.79
Severity; physical impact, harm, symptoms. Neither the
Restatement80 nor most cases require proof of physical symptoms,
much less proof of physical harm or impact.81 Some courts,
however, have carried over the requirement of physical
manifestation or symptoms from the law of negligent infliction of
distress.82 Some decisions seem to be exceptionally demanding on
the severity issue, with the result that a very serious wrongdoer is
shielded from responsibility, although he no doubt intended to
cause distress and caused it in fact.83
§ 29.8 Intentional Infliction and Emotional
Distress of Third Persons
Third person injury pattern. A familiar pattern in the law of
torts arises when a defendant acts tortiously toward A but in fact
harms B. The pattern appears in the intentional infliction of
distress cases as well as elsewhere. Suppose that the defendant
threatens to kill person A, and makes the threat credible by
drawing a pistol. The threatened person may have an action in
such a case, possibly one for assault, possibly one for intentional
infliction of distress. Now suppose that B is watching the pending
murder with increasing fear and apprehension. The question is
whether B has an action against the defendant for intentional
infliction of emotional distress.
The Restatements’ limitations. Under certain circumstances, the
Restatement Third permits B, a third person, to recover for severe
distress B suffers as a result of the defendant’s conduct directed at
A. When the defendant has a purpose to cause emotional harm to A
by falsely reporting the horrible death of a family member, he does
not avoid liability because he mistakenly made the false report to
A’s brother B instead.84 The Third Restatement imposes
limitations, though, in the different case that occurs when the
defendant causes emotional distress to A as he intended, and to B.
First, the Restatement suggests that B can recover in such a case
only if the defendant acts with a purpose or substantial certainty of
harming B himself, or is reckless in that regard. Second, recovery
is limited to close family members who contemporaneously
perceive the defendant’s harmful conduct.85 Consequently, the
defendant who inflicts harm upon a
712
mother knowing that her child is present has every reason to

know that both will suffer emotional harm.86
Widespread harm. Transferred intent would not apply under
the Restatement Third to permit recovery where the actor’s
conduct is “substantially certain to cause emotional disturbance to
a large group of individuals.”87 Consequently, even if millions of
people might conceivably suffer emotional harm if they watch the
torture or murder of a countryman or elected official on television,
recovery would not be allowed. The Restatement’s line against
recovery in this area is grounded in the fear of virtually unlimited
liability.
Conduct reckless toward or intended to harm those not present.
However, if the defendant’s conduct is sufficiently outrageous and
intended to inflict severe emotional harm upon a person who is not
present, no rule, nor any essential reason of logic or policy prevents
liability.88 The same is true with outrageous conduct that is
reckless. Thus courts have recognized a right to recover in a
number of cases in which the defendant’s conduct seems not to be
directed specifically at the absent plaintiff. For instance, family
members not present might be allowed to recover against those
who financed the 9–11 terrorist attacks,89 or the Beirut bombing of
American servicemen90 although the attacks were directed at the
families only in a very broad sense. Other cases have supported
recovery when the defendant tells the plaintiff he will kill her
husband and then does so out of her presence,91 or when the
defendant kills himself by slitting his own throat in the plaintiff’s
kitchen but out of her presence.92 Likewise, families of those
tortured at length outside the United States have been allowed to
proceed although they were not present.93 In Doe 1 v. Roman
Catholic Diocese of Nashville,94 a priest of the defendant Diocese
sexually abused numerous boys he encountered in his duties and
did so for many years. The plaintiff-victims sued the Diocese for
reckless infliction of emotional distress, claiming it knew of the
priest’s behavior but in various ways recklessly failed to prevent
further sexual abuse, by warning or otherwise. The Diocese argued
that it could not be held responsible because its alleged
recklessness was not “directed at” any specific boy. The court
rejected that argument. It also rejected the Restatement’s special
conditions for bystander claims.
Relationship of defendant to plaintiff. When the defendant is in
a special relationship with the plaintiff, the relationship rather
than the plaintiff’s presence may
713
best prescribe the limits of liability.95 Most states have

abolished the alienation of affections or criminal conversation
actions, and consequently a therapist who seduces his patient has
no obligation to the patient’s spouse and is not liable for the
spouse’s emotional injury when the seduction is discovered.96 But
when both spouses are patients of the therapist, the therapist’s
seduction of one may be an intentional or reckless infliction of
distress upon the other in the light of the therapist’s undertaking
to care for both.97
C. NEGLIGENT INFLICTION OF EMOTIONAL
HARM
§ 29.9 Negligent Infliction of Emotional Harm:
General Rules of Liability
Emotional versus physical harms. It has been said that “An
actor ordinarily has a duty to exercise reasonable care when the
actor’s conduct creates a risk of physical harm.”98 But no
equivalent proposition ever has been adopted with respect to
emotional harm. Nor, given the ubiquity of emotional harms, is it
likely to be.99 Instead, the story of liability for negligently inflicted
emotional harms is one of ever changing pragmatic liabilities and
limitations which continues to elicit new suggestions for analysis
and disposition.100
Contemporary claims for negligent infliction of distress. When
the defendant is negligent and emotional harm is foreseeable and
caused in fact by his negligence, most courts today allow recovery
for some stand-alone emotional harms.101 These cases are often
grouped into two main categories of tortious conduct—negligent
conduct that directly inflicts emotional disturbance on the plaintiff,
and negligent infliction of emotional disturbance resulting from
bodily harm to a third person.102
Limitations. Courts acknowledge liability in these two areas,
but they remain deeply concerned to impose limitations. In the
direct victim context, courts may restrict recovery to cases in which
the plaintiff has been placed in immediate danger of bodily
harm,103 or distress occurs within the confines of particular
undertakings or special
714
relationships.104 In the bystander cases where harm is inflicted

on a third person, courts may only permit claims of those who are
close family members of the direct victim and who also
contemporaneously perceived the harm-causing event.105 Outside
these categories, courts may entirely preclude distress claims. For
example, courts tend to reject distress recoveries based upon
negligent harm or threat106 to real107 or personal property,
including companion animals such as dogs.108 It is perhaps an
open question whether courts will permit recovery for emotional
harm resulting from the negligent loss of human ova that have
been fertilized in vitro but not yet implanted.109
Limitations: severe distress. With limited exceptions,110 most
courts hold that the plaintiff can recover only if a normally
constituted person would suffer,111 and the plaintiff in fact suffered
severe distress.112 In some instances, courts may require not only
severe distress but medical evidence of it113 or physical
manifestation of it.114 Moreover, courts sometimes demand, not
merely that a reasonable person would foresee the general type of
harm, but also serious emotional harm in particular.115 It is fair to
say that these rules are not in fact about foreseeability but about
pragmatic limits on liability, which are endemic to this area.
§ 29.10 Emotional Harm Arising from Risks or
Harms to Others
Bystander cases. Sometimes the plaintiff who suffers emotional
distress is a bystander to the physical harm. In bystander cases,
the plaintiff’s emotional harm results from her awareness that
another person is in danger or is actually harmed. A mother might
fear for her daughter’s life if she sees a speeding car bearing down
on the daughter; she might suffer shock if she sees the car strike
her daughter or discovers her child’s body afterwards.116
715
Zone of danger and fear for one’s self. The mother herself could
also be physically endangered. If mother and child are both in a
crosswalk in the speeder’s path, the mother might fear for her own
bodily safety as well for that of her child. With the abolition of the
old rule requiring an impact,117 the mother could recover for the
fear for her own safety. Given that her cause of action was thus
established, she could recover all her damages resulting from the
tortious conduct, including damages resulting because she feared
for her child. This zone of danger rule found support in the Second
Restatement.118 A number of court decisions support liability
under this test as well.119 For example, the Ninth Circuit allowed
the operator of a small fishing vessel threatened by a large
freighter to recover negligent infliction based on the fact that he
himself was in the zone of danger even though he did not witness
the death of the nearby fishing vessel captain who was killed.120
Under the zone of danger rule courts generally deny recovery to a
person who was not in the zone or did not fear for his own
safety.121 The Supreme Court of the United States has adopted the
zone of danger rule for claims under the Federal Employers’
Liability Act.122
Rejecting or supplementing the zone of danger limitation. The
zone of danger fear-for-oneself rule was an improvement on the
older rule that excluded recovery for emotional distress. But zone
of danger rule still excludes recovery for a mother who watches
from safety as the tortfeasor runs down and kills her child, or
against a hospital responsible for the abduction of the plaintiff’s
newborn child.123 In 1968, the California Supreme Court held in
Dillon v. Legg124 that, in bystander cases, foreseeability of
emotional harm should be the general test of liability. Most states
now appear to have joined Dillon in adoption of some alternate
approach,125 or permit recovery for bystanders under either the
zone of danger or the bystander test,126 which is also the position
of the Restatement Third.127
716
Foreseeability under Dillon v. Legg. Under Dillon, the

foreseeability test was to be focused by three guidelines.
Foreseeable emotional harm would be more likely if (1) the plaintiff
was near the scene at which another was injured or threatened, (2)
actually knew of the injury or threat to the other, and (3) was
closely related. Under that test, a family member might recover for
emotional harm even if she herself was never endangered and even
if she did not learn of the injury until after it occurred. For
instance, in a New Jersey case, a small boy was trapped between
an elevator door and the wall of the shaft.128 The elevator moved
and dragged him. His mother watched rescue efforts for over four
hours while he was dying of massive internal hemorrhaging and
suffering great pain. Although the zone of danger rule would have
barred the mother’s claim since she was not in physical danger,
under the Dillon rule the court allowed recovery.
Contemporaneous and sensory awareness of injury. A guidelines
approach to foreseeable emotional distress does not necessarily
require the plaintiff to witness the initial injury, but it is not
enough that she simply hear about it later. Courts usually agree
that the plaintiff must see the injured person before the victim’s
condition has substantially changed,129 although they express this
essential idea in slightly different ways.130 Some authority is a
little more liberal; Alaska upheld the right of a mother to recover
when she rushed to the scene of the accident but saw her injured
daughter only later at the hospital.131 Some cases have insisted
that the plaintiff must not only see the victim’s suffering or death,
but that the event they witness is sudden and traumatic. So
families who watch a child’s prolonged suffering and death because
of a druggist’s mis-filled prescription132 or a doctor’s misdiagnosis
simply have no claim for bystander emotional distress.133 On
occasion, courts have permitted recovery for a person who did not
contemporaneously perceive the event. For example, Hawaii held
that a school negligently permitting a teacher to molest grade-
school girls is liable to parents for their emotional harm as well as
to children.134
Restrictive approach to close relationship. Although many
relationships may be close, courts have tended to restrict the “close
relationship” category.135 Many cases have denied recovery to
strangers who engage in heroic and distressing rescue attempts.136
717
Similarly, non-family participants who, because of the

defendant’s negligence, innocently trigger horrifying harms to the
victim have also been denied recovery,137 although English courts
may grant recovery on such claims.138 Even a fiancé who witnessed
the death of the man she was engaged to marry was denied
recovery.139 And family members whose relationships were
considered not close enough—a son in law,140 a noncustodial
parent,141 an aunt who raised the child142—have seen recovery
denied. The rule may exclude recovery for distress resulting from
witnessing harm to a companion animal, who necessarily lacks a
blood or marital relationship to the plaintiff.143
Flexible approach to close relationships. Not all courts are so
restrictive, however. Some fiancés144 and unmarried cohabitants
living together as domestic partners145 may qualify as close family.
And more distant family members sometimes may be allowed to
recover if relationship with the primary victim was otherwise
especially close,146 particularly in the case of intentional infliction
claims.147 Some courts take a flexible approach in determining
which relationships are sufficiently close. New Hampshire
considers factors like duration of the relationship, the extent and
quality of shared experience and others.148 Tennessee has said that
a number of intimate relationships may suffice.149
718
Close relationship when bystander is in the zone of danger. The

close relationship issue is most pointed when the bystander-
plaintiff is NOT within the zone of danger, because recovery there
is perceived as risking many suits, while the zone of danger rule
automatically precludes most possible plaintiffs. However, in some
instances a state has invoked a relationship rule even though the
plaintiff was in the zone of danger.150 Since both the zone of danger
rule and the relationship rule are invoked to limit the number of
possible plaintiffs, and since the zone of danger rule excludes most
of the universe, we might question whether the relationship rule
ought to apply at all to a plaintiff who is in the zone of danger.
From guidelines to rules. The California court that had created
the Dillon rule later substantially modified it. Under the new
version, the “guidelines” in Dillon became precise rules. Regardless
of foreseeable and actual emotional harm to the plaintiff, plaintiff
would be denied recovery under the new rule unless she was
actually present and witnessed the injury or threat to a close
relation.151 Some courts have accepted this modification of Dillon
or approximated it with modifications of their own.152 The states
that have special bystander rules do not all treat claimants in the
same way.153 Needless to say, this a rapidly-changing and
tumultuous area of law where generalizations are difficult.
Loss of consortium and emotional harm. Loss of consortium is a
species of emotional harm. When one member of a family is injured
or killed, others in the family suffer a loss, particularly with
respect to injured person’s companionship and society. The loss is
obviously different from the shock or fright at witnessing injury of
a family member, but it is also obviously similar in that both
claims address injuries to emotional well-being from harm to
another.
Derivation. As a matter of historical derivation, however, loss of
consortium seems little related to the claim for emotional distress.
The claim originally asserted that the master was entitled to
recover because his servant or apprentice had been enticed away or
injured by the defendant, resulting in the master’s loss of services.
By crude analogy, the husband was then allowed to recover when
the defendant caused him to lose the services of his wife or child.
Thus when a wife or child was injured by the defendant’s
negligence, the husband as well as the primary victim would have
a recovery for his own losses. Traditionally, no other relationships
generated a loss of consortium claim.
719
Contemporary consortium claims. Contemporary loss of

consortium claims differ in several important respects.
(1) The emphasis has shifted from pure loss of service
claims to losses of various intangibles, usually described as
services, society, and sexual intercourse. It includes “the
mutual right of the husband and wife to that affection,
solace, comfort, companionship, society, assistance, and
sexual relations necessary to a successful marriage.”154
(2) The claim is no longer the husband’s claim alone; the
wife may also sue for loss of her husband’s services, society,
and sexual attention.155
(3) Although the loss of consortium claim traditionally
enforced “marital rights” only of spouses,156 a similar claim
for loss of a parent’s society, guidance, and the like is now
actionable by children in a substantial number of the
states,157 though not all.158 At times the right has been
extended even to adult children.159 Occasionally a
complementary claim is actionable by parents, usually where
the child is severely injured,160 but many cases disclaim
such recoveries.161 Most courts also continue to reject the
loss of consortium claims of siblings,162 although death
statutes frequently permit recovery of these claims.163 New
Mexico has even permitted a grandparent to recover for loss
of consortium resulting from injury and death to a
grandchild.164
(4) As indicated more fully below, some courts have now
made it possible for an unmarried person to claim loss of
consortium when her domestic partner is injured.
Limitations. Loss of consortium recovery permits plaintiff to
recover not only for loss of companionship and affection through
the time of the trial but also for prospective
720
damages resulting from the premature death.165 The life

expectancy of the plaintiff and the injured party, whichever is
shorter, places an outer limit on the loss of consortium recovery.166
A spouse cannot claim for loss of consortium based upon injury
inflicted upon the other spouse before marriage167 or after it is
dissolved.168 Although this rule is contested.169 In addition to these
limits, courts usually say that the consortium claim is derivative,
that is, that it will fail if the primary victim’s claim would fail,170
and that damages will be reduced under comparative fault rules if
the primary victim’s damages would be reduced.171 The claim may
also be subject to special statutory restrictions,172 or defenses
personal to the plaintiff.173 To avoid problems of duplication of
damages, courts may require that the consortium claim be joined
with the injury claim brought by the primary victim, where joinder
is feasible and just.174
The unmarried cohabitant. Some of the other limitations on
consortium recoveries may be dissolving. Some statutes175 and
cases176 have now authorized claims for
721
emotional distress or wrongful death by unmarried domestic

partners. New Mexico has specifically recognized a loss of
consortium claim in favor of an unmarried cohabitant where there
is a committed relationship.177 Idaho has not.178
Absence of special limiting rules. When loss of consortium can
be asserted, courts do not concern themselves with zone of danger
rules or demands for physical injury or manifestations of emotional
harm. They seem willing to assume the reality of injury, at least
when the plaintiff testifies to it. Perhaps the disparity between the
treatment of consortium and other forms of emotional distress
results in part from the severity of injury in many of these cases or
the fact that the consortium claim cannot be brought except by a
spouse or close family member. Perhaps the difference is that loss
of consortium had and still has a modest economic component.179
Or maybe courts are simply more comfortable with the evidence
that supports the consortium claim. Instead of evidence of a
plaintiff who is dysfunctional, near an emotional breakdown, or
filled with anxiety, they hear evidence of a comfortable homey
relationship that has lost its content: one spouse can no longer go
dancing,180 or the injured spouse can no longer recognize the
other.181 The special rules limiting emotional distress recovery do
not apply to the consortium claim.182 Damages awards, however,
are difficult to assess183 and some courts may impose special
limitations on the award.184
§ 29.12 Emotional Distress Arising from Direct
Risks of Physical Harm
The fright or shock pattern. In a famous case from the late
1800s, Mitchell v. Rochester Railway Co., the plaintiff was about to
board a railway car when the defendant drove a team of horses at
her. By the time the horses were stopped, plaintiff found herself
standing between the horses, although they had not touched her.
She later suffered a miscarriage as a result. The New York Court
of Appeals denied recovery for fright alone in the absence of
physical injury.185 The facts in this case are part of what is
sometimes referred to as the “fright or shock” pattern. In this set of
cases, the defendant’s negligent
722
acts put the plaintiff at immediate risk of physical injury and

the plaintiff’s reaction to that risk is fright or shock.
Physical impact or injury followed by distress. After Mitchell,
many courts adopted the “impact” rule, in which a negligently
inflicted physical impact to the plaintiff would ordinarily result in
enough physical harm to count as a tort in itself, so that emotional
harm would be recoverable as parasitic damage. Courts then held
that if any impact occurred, emotional distress damages could be
recovered.186 The impact rule would still preclude recovery where
runaway horses almost ran down the plaintiff, but stopped inches
away, even if the plaintiff suffered subsequent physical harm such
as a miscarriage resulting from the emotional distress.187 The rule
did not draw the line against liability at a satisfactory place, and it
has now been abolished in most states in favor of quite different
limitations,188 but a few courts retain the impact rule189 with
particular exceptions.190
Physical manifestation or symptom of distress. Some
jurisdictions adopted a different condition: The plaintiff can only
recover if she produces evidence of some bodily harm or physical
manifestation of the shock or fright.191 So if horses had run at the
plaintiff and without touching her caused a miscarriage or heart
attack, recovery would be permitted. The physical manifestation or
symptom of distress need not be so severe. Sometimes, courts that
require physical symptoms are ready to find such symptoms in
fairly transient physical phenomena, as where one plaintiff,
confronted with a shock, lost control of bladder and bowel.192
Likewise, some courts may recognize a medically diagnosable
condition even without objective symptoms.193 However, not all
courts apply such a broad standard. For instance, when a man
fired a shotgun in a nightclub, killing and injuring people, the
plaintiff attempted to deal with the man and narrowly escaped
harm himself. The plaintiff had nightmares, frequent headaches,
dizziness, depression, nervousness, weight loss, and poor appetite
and was medically diagnosed as suffering
723
from a recognized post-traumatic stress disorder. Nevertheless,
his emotional harm claim was rejected because he demonstrated no
objectively verifiable physical symptoms.194 At times the limitation
has been applied in ways that appear ridiculous.195
An alternative limitation: recovery for cases of severe distress. In
other jurisdictions, plaintiff can recover for negligently inflicted
emotional harm when the plaintiff’s evidence shows by a
preponderance of the evidence that she in fact suffered serious or
severe emotional harm, even if the plaintiff suffered no physical
impact and has no physical manifestations or symptoms of the
harm. Courts taking this position argue that the requirement of
physical symptoms is overinclusive because it allows trivial and
transient symptoms to support the emotional harm claim, and
underinclusive because it “mechanically denies” convincing claims
for emotional distress. They also point out that the nature of the
defendant’s conduct is often a better guarantee of genuine
emotional harm than are mechanical symptoms.
Dropping the physical manifestation requirement. A large
number of cases have either dropped the requirement of physical
symptoms or manifestations or have held that the requirement
does not apply when the facts of the case tend to show the reality of
the plaintiff’s emotional harm.196 At times the physical
manifestations requirement has been dropped for particular
categories of cases, such as bystander cases197 or direct harm
cases.198 And of course the requirement typically does not apply to
parasitic claims of distress.199 The Restatement Third of Torts
directly disavows a requirement of physical manifestations of
distress. Instead, the Restatement limits claims to “serious
emotional disturbance,” whether accompanied by physical
manifestations or not.200
Abolishing restrictive rules: severe distress that is reasonably
foreseeable. A few courts have expressed a desire to eliminate all
the restrictive rules in emotional distress cases. In the first, the
Montana Supreme Court seemed to hold that the plaintiff could
recover for emotional distress incurred when the defendants told
authorities that she had stolen goods. The court phrased its new
rule broadly: “An independent cause of action for the tort of
infliction of emotional distress will arise under circumstances
where serious or severe emotional distress to the plaintiff was the
reasonably foreseeable
724
consequence of the defendant’s negligent or intentional act or

omission….”201 Because the claim was based in part on a report to
authorities that attributed a crime to the plaintiff, the claim would
ordinarily be handled under a malicious prosecution theory, with
all the special rules that entails. If the negligent infliction claim
displaces malicious prosecution (and perhaps other torts), the rules
designed to encourage reports to authorities will be substantially
undermined (uness imported into the new claim). If general
foreseeability becomes sufficient to make an emotional distress
claim, it may become important to carve out cases that are subject
to special rules that apply in cases for malicious prosecution,
defamation, privacy invasion, and the like.
Foreseeability of distress as the test. In 1996 a Tennessee case
also abolished special rules for emotional distress. It substituted a
general test of foreseeability instead.202 But that court expressly
recognized that the foreseeability test might end up in much the
same way as under the restrictive rules. For instance, a plaintiff
who was in the zone of danger might be a readily foreseeable
victim of emotional distress, while a bystander outside the zone
might be required to show some other evidence, such as a close
relationship with the injured person that brought her within the
range of foreseeability.203 The court has now added a requirement
that the plaintiff support such claims with expert medical or
scientific proof.204 It thus remains to be seen whether adoption of
the general foreseeability approach, which treats emotional harm
like any other injury, will expand liability or whether it will
instead be applied to obtain results similar to those the courts now
reach under the various restrictions canvassed above.205 It also
remains to be seen how many jurisdictions will follow suit and use
foreseeability and severity of harm as the main guideposts for
NIED claims.206
Direct emotional harms without sudden injury. As the
requirements of reasonably foreseeable severe distress suggest, the
scope of liability for emotional distress could be quite a bit larger
than that originally stemming from the fright or shock pattern.
Emotional harm resulting from direct risk or injury—the fright
and shock pattern—is but one pattern of recovery in which the
plaintiff is the direct victim of emotional harm. Some courts have
begun to recognize recovery for emotional harms that do not result
from a sudden event or threat of an impact, for example in the case
of toxic exposures, erroneous information, or defendants under a
duty to care for the plaintiff’s well-being.
725

Specific incident causing fear of future harm. When the plaintiff
is subjected to a specific intangible trauma like excessive x-rays,
she may be able to prove by a preponderance of the evidence that
some specific harm will eventuate in the future.207 But even if the
plaintiff cannot prove that a disease will result in the future,
courts have permitted recovery for reasonable fears that the
impact will inflict some future disease. She might fear cancer in
the case of excessive x-ray doses208 or exposure to asbestos that
has already actually resulted in some physical harm;209 she might
fear brain damage or paralysis in the case of a head injury that
caused loss of cerebral fluid.210 Even if such harms are not
necessarily more probable than not, they are worrisome, and courts
have allowed recovery readily enough.211 Such cases often fit the
pattern of parasitic damages—emotional harm results from an
initial injury and is recovered as one element of damages for that
injury.
Claims for fear of future harm without specific impact. Courts
have also allowed some claims of fear about future harm even
when no impact has occurred at all and the rule for parasitic
damages could not be invoked. For example, as a result of a
negligent reading of a pap smear test, it appeared that the plaintiff
needed no treatment. The error was discovered much later and the
needed treatment was given, but the delay made future cancer
more likely. The court upheld the claim for emotional distress.212
Two factors especially call for relief in such a case. First, as
suggested in the next section, the parties are not strangers; on the
contrary, the defendant has undertaken to care for the plaintiff
professionally and failed to do so. Second, the fear arises from a
specific incident rather than, say, gradual environmental exposure.
Reasonable fear of future harm. When the defendant has
negligently exposed the plaintiff to a toxic substance like the AIDS
virus, plaintiff may fear future harm. Over a period of time, this
fear may subside if tests repeatedly prove negative,213 but at least
during the “window of anxiety,” until tests can establish the
plaintiff’s health, the fear seems to be reasonable in the sense that
many if not most people in our culture would suffer a similar fear.
Courts have often insisted, however, that the plaintiff must prove
that her fear was reasonable by showing that (1) the virus was
present and (2) there was
726
a scientifically accepted channel for transmission of the

disease.214 For instance, if the plaintiff drinks from a soft drink
bottle, then discovers what appears to be a used condom in it, her
fear claim cannot succeed unless she shows that there was a virus
present and that it could be communicated by drinking
contaminated Coca-Cola.215
Actual exposure versus reasonable fear of exposure. If the
plaintiff is negligently stuck with a used hospital needle which
cannot be identified and tested, she might reasonably fear
contamination and the possibility of AIDS, but if she cannot show
that the needle was in fact contaminated, or that she suffers some
immediate physical injury, a number of courts hold that she has no
claim for emotional distress even though she sustained a physical
impact.216 Or the plaintiff in an emergency room is seated in a pool
of unidentified blood. He cannot recover for his fear of AIDS unless
he can show that the blood actually entered his body.217 Some
courts have made this requirement of “actual exposure” quite
stringent.218 Several major decisions have now taken a different
view, saying that if the defendant negligently subjected the
plaintiff to a reasonable fear of exposure to AIDS, for example, if
she is stuck by a needle that cannot be tested, that will be enough
to warrant a recovery for the period until testing can reasonably
assuage that fear.219 Some kinds of environmental contamination
expose many people to risks of future physical harm. These cases
pose special problems.220
§ 29.14 Emotional Distress from False or Erroneous
Information
Erroneous or inadequate information supplied to the plaintiff.
At times the plaintiff has been permitted to recover for distress
arising from the defendant’s negligent transmission or failure to
transmit important information. The classic case was for a
telegraphic message wrongly announcing a death.221 Recovery was
permitted even though there was no physical risk or harm to the
plaintiff or anyone else. Courts that follow the zone of danger rule
sometimes apply it to exclude recovery for emotional harms not
based on a physical danger, as where a nursing home provides
false information
727
about the health of the plaintiff’s mother222 or a physician fails

to provide appropriate information about the genetic defects of a
fetus.223
Distressing misdiagnosis—split authority. Suppose the
defendants tested the plaintiff for AIDS but negligently and
erroneously reported to her that she was infected with the disease
when she was not. Since AIDS is presently incurable, the diagnosis
is bound to be severely distressing, but the diagnosis itself does not
place anyone in danger. Some decisions deny any recovery to the
victim of this negligent misdiagnosis because the diagnosis does
not endanger the victim in a physical way,224 although others
recognize that emotional harm from this kind of misinformation is
foreseeable and worthy of redress.225
Three characterizations of the claim. The claim for negligent
infliction of emotional distress based on information supplied to the
plaintiff can take on different legal colors depending how the claim
is theorized. Three possibilities of conceptualizing such a claim are
illustrated in Friedman v. Merck & Co.226 The plaintiff there was
an ethical vegan, a person who refuses to ingest animal products as
a matter of personal ethics. He was offered a job contingent on
undergoing a TB test. Since the test would put substances in his
body, he asked the manufacturer for assurance that it contained no
such animal products and was told that it was “vegan friendly.” He
accepted the test, then discovered that the manufacturer’s
assurance was false. He claimed emotional harm and physical
harms resulting from that emotional harm.
Products warnings. The first possibility, apart from a
straightforward claim for negligent infliction of emotional distress,
is that the manufacturer should have warned potential users, but
the Friedman court rejected that claim, coupled with reliance on
the requirement that emotional harm must be serious. Since no
substantial number of people would both seek to avoid all animal
products and suffer serious emotional harm from unintended
ingestion of them, the manufacturer owed no duty to warn with
respect to emotional harm. This ruling turns not merely on
foreseeability but foreseeability of substantial numbers of victims,
so the outcome might conceivably be different if a manufacturer
made assurances to larger or better-defined groups—to Orthodox
Jews that the seller’s food was kosher or to Jehovah’s Witnesses
that its medical treatment contained no blood products. Yet if a
Jehovah’s Witness could recover in such a case, the effect is to
protect some more widely held beliefs but not beliefs of small
minorities, a position that may sit quite uncomfortably with
traditional individualistic values.
Duty undertaken or assumed. The second possibility was that
the defendant had undertaken or assumed a duty to the plaintiff,
given that it knew plaintiff’s beliefs and undertook to state the
relevant facts.227 But the court thought the defendant had not
728
assumed a duty with respect to emotional harm; the defendants

“did not voluntarily undertake any duty that encompassed
plaintiff’s emotional tranquility.” This point, too, was intertwined
with the idea that serious emotional harm was not foreseeable.
Negligent misrepresentation on matters of emotional
significance. The third possibility may have broader relevance. The
plaintiff in Friedman asserted that the defendant was chargeable
with negligent misrepresentation, a liberalized claim growing out
of the old tort of intentional deceit.228 Fraud and deceit, and their
cousin, negligent misrepresentation, are normally seen as economic
torts, with no recovery for emotional harm.229 Yet there are cases
in which the representation is mainly about a matter of emotional
significance, just as there are contract cases in which the promise
is not so much economic in nature as emotional. It should go
without saying that such claims are successful where the facts
meet all the requirements of a claim for negligent or intentional
infliction of emotional distress, and equally that they are often
denied when the facts do not show a ground for relief under the
emotional harm rules.230 Such claims are at bottom emotional
distress claims with a misrepresentation label. For example, in the
“wrongful adoption” cases, parents adopt a child based on an
adoption agency’s knowing or negligent false representation that
the child is mentally and physically healthy, when in fact it turns
out after adoption has taken place that the child has the most
serious kinds of physical or mental health problems. Some
authority directly supports the parents’ recovery for emotional
distress as well as economic harm in such cases,231 though some
does not.232
The Friedman court, however, thought that the gist of the
vegan plaintiff’s claim concerning the TB test was essentially one
for emotional harm, and that no pertinent authority supported
liability for stand-alone emotional harm based on such
misrepresentation, conceived of as a tort separate from negligence.
§ 29.15 Duties of Care to Protect Emotional Well-
Being Independent of Physical Risks
Defendant duty to protect plaintiff’s emotional well-being.
Another situation in which a plaintiff may recover for stand-alone
emotional distress is the context in which the defendant has a
special relationship to the plaintiff and the defendant has
undertaken a duty of care that implicates the plaintiff’s emotional
well-being.233 For
729
example, in some cases of mishandling of dead bodies courts

permit negligent infliction of distress claims,234 although the
majority rule probably confines liability to intentional
mishandling.235 In both kinds of mishandling cases, the
contractual relationship between the parties and its implicit
undertakings undoubtedly play a large part in liability. The duty
assumed by a mortuary or other party in custody of the body
expressly or impliedly is a duty to take care for the feelings of the
survivors. Mishandling a dead body foreseeably affects the welfare
of survivors, and warrants a claim for emotional distress.236 For
instance, when a hospital performed a dissection upon a mother’s
stillborn fetus over her objection but not in her presence, the
mother and not the deceased child was the “primary victim.”237
But again, some cases have rejected liability on zone of danger
grounds, perhaps because the assumed or independent duty
argument was not presented.238
Obstetrician’s assumed duty of care for mother and child.
Another example of a case in which a special relationship or
undertaking arises such that recovery is not dependent on special
bystander rules is California’s decision in Burgess v. Superior
Court.239 Burgess obtained prenatal care from Dr. Gupta and
others. After Burgess entered labor, Gupta diagnosed a prolapsed
cord, meaning the child would not receive sufficient oxygen. For
reasons not explained in the opinion, 44 minutes elapsed before the
child was taken by Cesarean Section. By that time, the child had
suffered severe brain damage from oxygen deprivation. A suit was
brought for the child and Burgess brought her own suit for
emotional harm. California had repudiated the zone of danger rule,
but would still exclude the plaintiff’s emotional harm claim unless
the plaintiff was contemporaneously aware of the child’s injury.
Burgess may not have been aware of her child’s injury until much
later. Nevertheless, the California court thought that the plaintiff
could recover. The key point was that the plaintiff and defendant
were already in a physician-patient relationship. The physician’s
duty to the mother was not derivative of some duty to the
730
child; he owed her a direct duty of care based on the duty he

assumed by entering the physician-patient relationship.
Support for the assumed duty to mother and child. The Burgess
idea is relatively new and seems not to have been argued in a
number of cases. Some cases quite similar to Burgess on their facts
have rejected the mother’s claim without mentioning the idea that
the physician-patient relationship created a duty of care to her that
would not otherwise exist.240 Where the point has been considered,
however, courts have been receptive to the rule or some form of
it.241 Somewhat similarly, decisions in New York242 and
Wisconsin243 have permitted the mother to recover for her own
emotional distress when her physician’s negligence resulted in loss
of her fetus. Pennsylvania even more recently held on similar facts
that where the plaintiff and defendant are in a preexisting special
relationship “involving duties that obviously and objectively hold
the potential of deep emotional harm in the event of breach,” no
special rules constrain the claim for negligent infliction of
emotional distress.244
Support for an assumed or independent duty for plaintiff’s
emotional well-being in other contexts. Although the childbirth
setting is perhaps the most prominent example of the independent
duty, the same reasoning can be applied whenever the defendant
assumes a duty by contract or otherwise and when that duty
encompasses the plaintiff’s emotional well-being. A therapist who
agrees to treat the plaintiff is assuming a duty to exercise care for
the plaintiff’s emotional condition; if he instead negligently inflicts
emotional harm, he is responsible.245 Or suppose a hospital
negligently switches babies, so that two recent mothers each take
home the other’s child and upon discovery years later suffer
emotional distress. The hospital’s negligence ordinarily poses no
special physical danger to the parents or children. In light of the
obligations the hospital had to the families, however, it is no
surprise to find that baby-switching hospitals may be held
responsible.246 The court wrote, “Where a contractual relationship
exists for services that carry with them deeply emotional responses
in the event of breach, there arises a duty to exercise ordinary care
to avoid causing emotional harm.”247 A number of other courts
obtain results entirely consistent with the independent duty
analysis when they permit recovery for emotional distress from an
embryo allegedly implanted in the wrong
731
woman,248 a medical test that caused emotional harm without
risking physical injury,249 a blood transfusion given over plaintiff’s
objection,250 and a wedding cancellation of which the engaged
couple was given no notice.251
Rationale for recognizing liability in assumed and independent
duty cases. When the defendant owes an independent duty of care
to the plaintiff, there is no risk of unlimited liability to an
unlimited number of people. Liability turns solely on relationships
accepted by the defendant, usually under a contractual
arrangement. Consequently, the duty extends only to those for
whom the contract was made.252 The idea that a contractual or
similar relationship can bespeak a duty assumed by the defendant
or one imposed by law is itself of respectable lineage. The early
allowance of emotional distress damage in suits against carriers,
innkeeper, and telegraph companies was based precisely on the
consensual relationship between the plaintiff and the defendant.253
The scope of the independent duty owed by the defendant “directly”
to the plaintiff dictates the limits of liability.
Severe distress to a reasonable person and plaintiff’s special
vulnerabilities. Courts sometimes note that the defendant’s
conduct must have been such that it would have severely
distressed a reasonable person who is normally constituted.254 This
requirement that the plaintiff be normally constituted or
“reasonable,” does not mean that the plaintiff’s special
vulnerabilities are ignored. If the defendant knows or should know
that he deals with an especially sensitive plaintiff that is all the
more reason for care. Thus a therapist treating an emotionally
distressed patient would know of her special vulnerability and be
expected to act with reasonable care for that condition. If he does
not, liability for her emotional distress is entirely proper.255
Damage of distress that is greater than anticipated. Neither
does the reasonable person rule mean that the plaintiff is limited
to an amount of damages that would be incurred by a normal
person. If the defendant’s conduct would subject him to liability for
severe distress to a reasonable person, he is also liable for damages
to an especially sensitive person, even if those damages are much
greater because of the special
732
sensitivity.256 This rule is merely the familiar thin skull or

eggshell skull rule as applied to emotional harm. On the other
hand, the reasonable person rule excludes compensation for
emotional harm when a reasonable person would suffer no serious
emotional harm at all.257 Such a result seems logical. If only
transient distress is foreseeable to a normal person and the
defendant neither knows nor should know of the plaintiff’s special
sensitivity, serious distress is by definition not foreseeable.258 In
some cases, it may be difficult for a particularly sensitive plaintiff
to show that the defendant’s conduct was the factual cause259 or
proximate cause260 of the distress.
________________________________
1 Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627,
925 N.E.2d 513 (2010); Ammondson v. Northwestern Corp., 220 P.3d 1
(Mont. 2009); but see Betsinger v. D.R. Horton, Inc., 232 P.3d 433 (Nev.
2010).
2 Norfolk & W. Ry. v. Ayers, 538 U.S. 135, 153–54, 123 S.Ct. 1210,
1221–22, 155 L.Ed.2d 261 (2003) (“Once found liable for ‘any bodily harm,’
a negligent actor is answerable in damages for emotional disturbance
‘resulting from the bodily harm or from the conduct which causes it,’ ”
citing Restatement Second of Torts § 456(a) (1965)); Thornton v. Garcini,
928 N.E.2d 804 (Ill. 2010).
3 See John Hancock Mut. Life Ins. Co. v. Banerji, 447 Mass. 875,
858 N.E.2d 277 (2006); 3 Dan B. Dobbs, The Law of Remedies § 12.5(1) (2d
ed. 1993).
4 In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 4
A.3d 492 (Me. 2010) (electronic payment data); Murphy v. Implicito, 392
N.J. Super. 245, 266, 920 A.2d 678, 690 (2007) (surgeon allegedly breached
contract by using cadaver parts in operation); Larsen v. Banner Health
Sys., 81 P.3d 196 (Wyo. 2003) (health care provider switched babies of two
mothers at birth). Breach of contracts made to secure physical safety
(including warranties) may produce liability for personal injury and pain
and emotional suffering damages.
5 See J. Smith Lanier & Co. v. Se. Forge, Inc., 280 Ga. 508, 630
S.E.2d 404 (2006). See similarly Molina v. Merritt & Furman Ins. Agency,
Inc., 207 F.3d 1351 (11th Cir. 2000); Sawyer v. Bank of Am., 83 Cal.App.3d
135, 145 Cal.Rptr. 623 (1978); Stein, Hinkle, Dawe & Assocs., Inc. v.
Continental Cas. Co., 313 N.W.2d 299 (Mich. Ct. App. 1981).
6 McKay v. Wilderness Dev’t, LLC, 221 P.3d 1184 (Mont. 2009)
(breach of restrictive covenant, independent tort of IIED also could be
asserted).
7 E.g., Francis H. Bohlen, Right to Recover for Injury Resulting
from Negligence Without Impact, 50 Am. L.Regs. 141 (1902); Martha
Chamallas, Unpacking Emotional Distress: Sexual Exploitation,
Reproductive Harm, and Fundamental Rights, 44 Wake Forest L. Rev.
1109 (2009); Fowler V. Harper & Mary Coate McNeely, A Re-Examination
of the Basis for Liability for Emotional Ditress, 1938 Wis. L. Rev. 426;
Stanley Ingber, Rethinking Intangible Injuries: A Focus on Remedy, 73
Cal. L. Rev. 772 (1985); Gregory C. Keating, Is Negligent Infliction of
Emotional Distress a Freestanding Tort?, 44 Wake Forest L. Rev. 1131
(2009); Nancy Levit, Ethereal Torts, 61 Geo. Wash. L. Rev. 136 (1992);
Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts,
49 Harv. L. Rev. 1033 (1936); Robert L. Rabin, Emotional Distress in Tort
Law: Themes of Constraint, 44 Wake Forest. L. Rev. 1197 (2009).
8 Richard N. Pearson, Liability to Bystanders for Negligently
Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules,
34 U. Fla. L. Rev. 477 (1982).
9 E.g., Leslie Bender, Feminist (Re)torts: Thoughts on the Liability
Crisis, Mass Torts, Power, and Responsibilities, 1990 Duke L.J. 848
(1990); Nancy Levit, Ethereal Torts, 61 Geo. Wash. L. Rev. 136 (1992).
10 Robert L. Rabin, Emotional Distress in Tort Law: Themes of
Constraint, 44 Wake Forest. L. Rev. 1197 (2009). See also Turley v. ISG
Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014) (“highly disfavored”); Milk
v. Federal Home Loan Mortg. Corp., 743 F.3d 149 (6th Cir. 2014)
(“standards for this tort are strict”); Hayward v. Cleveland Clinic Found.,
759 F.3d 601 (6th Cir. 2014) (“to say that Ohio courts narrowly define
‘extreme and outrageous conduct’ would be something of an
understatement”).
11 See Norfolk & W. Ry. v. Ayers, 538 U.S. 135, 123 S.Ct. 1210, 155
L.Ed.2d 261 (2003) (Kennedy, J., dissenting).
12 Short of bankruptcy, the legal system has provided only crude
solutions or none at all, but it would be possible to expand interpleader or
otherwise provide for common distribution system when claims exceed
assets. See 1 Dan B. Dobbs, The Law of Remedies § 2.9(4), at 238 (2d ed.
1993).
13 This was the approach taken by the 9/11 Victim’s Compensation
Fund. Kenneth R. Feinberg, et al., Final Report of the Special Master for
the September 11th Victim Compensation Fund of 2001, at 9 (2004),
available at http://www.justice.gov/final_report.pdf,“each claim received a
uniform non-economic award of $250,000 for the death of the victim and
an additional non-economic award of $100,000 for the spouse and each
dependent of the victim”).
14 Guido Calabresi, Toward a Unified Theory of Torts, 1 J. Tort L. 1
(Oct. 2007).
15 Id.
16 W. Page Keeton et.al, Prosser and Keeton on Torts § 12, at 56 (5th
ed. 1984).
17 See Cole v. Atlanta & W.P.R. Co., 102 Ga. 474, 31 S.E. 107 (1897);
Lipman v. Atlantic Coast Line R.R., 108 S.C. 151, 93 S.E. 714 (1917).
18 See DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527 (1908).
19 E.g., Chamberlain v. Chandler, 3 Mason. 242, Fed. Cas. No. 2,575
(Cir. Ct. D. Mass. 1823).
20 Stuart v. W. Union Tel. Co., 66 Tex. 580, 18 S.W. 351 (1885).
21 Cf. Adams v. N.Y.C. Transit Auth., 88 N.Y.2d 116, 666 N.E.2d
216, 643 N.Y.S.2d 511 (1996).
22 E.g., Rollins v. Phillips, 554 So.2d 1006 (Ala. 1989) (unauthorized
autopsy); see also Restatement Second of Torts § 868 (1979).
23 See Adams v. King Cnty., 164 Wash.2d 640, 192 P.3d 891 (2008)
(defendants permitted to remove some brain tissue for experimental
purposes, obtained the entire brain and other body samples from the dead
body of the plaintiff’s son). Cf. Boorman v. Nev. Mem’l Cremation Soc’y,
236 P.3d 4 (Nev. 2010).
24 E.g., Smialek v. Begay, 104 N.M. 375, 721 P.2d 1306 (1986). Some
courts may continue to mention property rights in the body even while
grounding liability in the tort of “outrage.” See Travelers Ins. Co. v. Smith,
338 Ark. 81, 991 S.W.2d 591 (1999).
25 See Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877 (Colo. 1994);
Guth v. Freeland, 96 Haw. 147, 28 P.3d 982 (2001). See also Crocker v.
Pleasant, 778 So. 2d 978 (Fla. 2001); Lascurain v. City of Newark, 349 N.J.
Super. 251, 793 A.2d 731 (2002).
26 Wilkinson v. Downton, [1897] 2 Q.B. 57.
28 Id. §§ 312, 313.
29 Id. §§ 436, 436A.
30 See §§ 29.4–29.16.
31 K.M. v. Ala. Dep’t of Youth Servs., 360 F.Supp.2d 1253 (M.D. Ala.
2005) (serious sexual battery, but both battery and emotional distress
claims allowed); Durban v. Guajardo, 79 S.W.3d 198 (Tex. App. 2002)
(extended conflict between two people including some batteries).
32 Alderson v. Bonner, 142 Idaho 733, 132 P.3d 1261 (Ct. App. 2006).
33 The Supreme Court may have permitted something like this in
Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976).
34 See State Rubbish Collectors Ass’n v. Siliznoff, 38 Cal.2d 330, 240
P.2d 282 (1952); Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).
See also, e.g., Smith v. Welch, 265 Kan. 868, 967 P.2d 727 (1998) (IIED
claim permitted although battery claim was time barred).
36 Valadez v. Emmis Commc’ns, 229 P.3d 389 (Kan. 2010).
37 See Uranga v. Federated Pubs. Inc., 138 Idaho 550, 67 P.3d 29
(2003); K.G. v. R.T.R., 918 S.W.2d 795 (Mo. 1996); see also Veilleux v.
National Broad. Co., 206 F.3d 92 (1st Cir. 2000).
38 Banks v. Fritsch, 39 S.W.3d 474 (Ky. Ct. App. 2001); Baliva v.
State Farm Mut. Auto. Ins. Co., 286 A.D.2d 953, 730 N.Y.S.2d 655 (2001);
GTE Sw., Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999).
39 Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 46 (2012).
40 E.g., Alexander v. Bozeman Motors, Inc., 234 P.3d 880 (Mont.
2010); Flizack v. Good News Home for Women, Inc., 346 N.J. Super. 150,
787 A.2d 228 (2001); Jackson v. Sun Oil Co. of Pa., 361 Pa. Super. 54, 521
A.2d 469 (1987); Kjerstad v. Ravellette Pubs., Inc., 517 N.W.2d 419 (S.D.
1994); Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 46 cmt. h (2012). But see Rabideau v. City of Racine, 243 Wis. 2d
486, 627 N.W.2d 795 (2001).
41 Pollard v. E.I. DuPont De Nemours, Inc., 412 F.3d 657 (6th Cir.
2005); O’Phelan v. Loy, 2010 WL 3779209 (D. Haw. 2010); Walker v. City
of Huntsville, 62 So.3d 474 (Ala. 2010); Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 46 cmt. h (2012).
42 See Traynor, J., in State Rubbish Collectors Ass’n v. Siliznoff, 38
Cal. 2d 330, 240 P.2d 282 (1952). Dickens v. Puryear, 302 N.C. 437, 276
S.E.2d 325 (1981).
2011 & Supp.).
44 E.g., Hac v. University of Haw., 102 Haw. 92, 73 P.3d 46 (2003).
But see Goodrich v. Long Island R.R. Co., 654 F.3d 190, 32 I.E.R. Cas.
(BNA) 1662 (2d Cir. 2011) (applying “zone of danger” requirement in
intentional infliction of emotional distress case brought under the Federal
Employers’ Liability Act (FELA)).
45 Restatement Second of Torts § 46 cmt. d (1965).
Harm § 46 cmt. a (2012).
47 E.g., White v. Brommer, 747 F.Supp.2d 447 (E.D. Pa. 2010); Hunt
ex rel. DeSombre v. State, Dep’t of Safety & Homeland Sec., Div. of Del.
State Police, 69 A.3d 360 (Del. 2013); Valadez v. Emmis Commc’ns, 229
P.3d 389 (Kan. 2010); Almy v. Grisham, 273 Va. 68, 639 S.E.2d 182 (2007).
48 See Robert L. Rabin, Emotional Distress in Tort Law: Themes of
Constraint, 44 Wake Forest. L. Rev. 1197 (2009).
49 Wood v. Neuman, 979 A.2d 64 (D.C. 2009).
50 See Ennett v. Cumberland Cnty. Bd. of Educ., 698 F.Supp.2d 557
(E.D. N.C. 2010); Lybrand v. Trask, 31 P.3d 801 (Alaska 2001) (sign
painted on the defendant’s roof offering several Biblical quotations such as
“love thy neighbor” was visible by and addressed to the uphill plaintiffs);
Hughes v. Pair, 209 P.3d 963 (Cal. 2009) (sexual advances by a trustee of
deceased husband’s estate); Hernandez v. Hillsides, Inc., 211 P.3d 1063
(Cal. 2009) (workplace video camera set to go on after plaintiff employees
left for the day); Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456,
681 N.E.2d 1189 (1997); Mikell v. School Admin. Unit No. 33, 972 A.2d
1050 (N.H. 2009) (teacher’s allegedly false report of student misconduct).
51 Ortberg v. Goldman Sachs Group, 64 A.3d 158 (D.C. 2013); Wood
v. Neuman, 979 A.2d 64 (D.C. 2009).
52 Crowley v. N. Am. Telecomms. Ass’n, 691 A.2d 1169 (D.C. 1997);
Taggart v. Drake Univ., 549 N.W.2d 796 (Iowa 1996) (conduct of a dean
who loses his temper and refers to the plaintiff faculty member in a “sexist
and condescending manner” as a “young woman,” is not actionable, even
considering the disparity between the parties).
53 Gaspard v. Beadle, 36 S.W.3d 229 (Tex. App. 2001).
54 Wilkinson v. United States, 564 F.3d 927 (8th Cir. 2009) (Bureau
of Indian Affairs’ position of power over landowners); Davis v. Pickell,
F.Supp.2d 771 (E.D.Mich. 2013) (severe beating by sherriff’s deputies);
District of Columbia v. Tulin, 994 A.2d 788 (D.C. 2010) (police officer who
caused accident and then caused motorist to be falsely arrested for
reckless driving); Brandon v. Cnty. of Richardson, 261 Neb. 636, 624
N.W.2d 604 (2001) (sheriff cruely grilling transsexual victim soon after
rape); Grager v. Schudar, 770 N.W.2d 692 (N.D. 2009) (jailer who had sex
with inmate); Travis v. Alcon Labs., Inc., 504 S.E.2d 419 (W. Va. 1998)
(supervisor at work over extended period).
55 Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592 (Fla. Dist. Ct.
App. 2007) (insurer delayed payment for a lung transplant knowing that
claimant had limited life expectancy); Doe v. Corporation of President of
Church of Jesus Christ of Latter-Day Saints, 141 Wash.App. 407, 167 P.3d
1193 (2007) (bishop of church told teenaged sexual abuse victim that if she
reported the abuse she would be responsible for the breakup of her family).
56 Hughes v. Pair, 209 P.3d 963 (Cal. 2009) (substantial or enduring
quality of acts); Gleason v. Smolinski, 88 A.3d 589 (Conn. 2014)
(relentlessly hanging posters near plaintiff’s home for the sole purpose of
intimidation); Cabaness v. Thomas, 232 P.3d 486 (Utah 2010) (pattern of
continuing and ongoing tortious conduct); Travis v. Alcon Labs., Inc., 504
S.E.2d 419 (W. Va. 1998) (duration as well as intensity); Kanzler v.
Renner, 937 P.2d 1337 (Wyo. 1997). Federal and state anti-discrimination
law recognizes a similar point; a work environment may be hostile and
discriminatory if the harassing conduct is “pervasive” as well as when it is
“severe.” See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct.
2399, 2405, 91 L.Ed.2d 49 (1986).
57 E.g., Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565
P.2d 1173 (1977) (workplace harassment).
58 E.g., Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51
(D.D.C. 2010) (acts of terrorism).
59 Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of
Life Activists, 290 F.3d 1058 (9th Cir. 2002), on second appeal, 422 F.3d
949 (9th Cir. 2005) (credible threats to murder abortion providers); Delfino
v. Agilent Techs., Inc., 145 Cal.App. 4th 790, 52 Cal.Rptr. 3d 376 (2006)
(repeated threats of physical harm in graphic terms).
60 Plotnik v. Meihaus, 208 Cal.App. 4th 1590, 146 Cal.Rptr. 3d 585
(2012) (threat against homeowner’s wife and dog); Nims v. Harrison, 768
So.2d 1198 (Fla. Dist. Ct. App. 2000) (threat to harm children).
61 See Gordon v. Bank of N.Y. Mellon Corp., 964 F.Supp.2d 937 (N.D.
Ind. 2013) (breaking into plaintiff’s home); State Rubbish Collectors Ass’n
v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282 (1952) (coercive methods to get
plaintiff to agree to give up accounts). Threats to companion animals can
produce actionable distress. LaPorte v. Associated Indeps., Inc., 163 So.2d
267, 1 A.L.R.3d 992 (Fla. 1964) (malicious destruction of plaintiff’s dog in
her presence by throwing a garbage can at the animal). But see Scheele v.
Dustin, 998 A.2d 697 (Vt. 2010) (denying noneconomic damages in case in
which property owner intentionally shot unleashed nonaggressive dog that
wandered onto his property; court reasoning focused on negligent rather
than intentional infliction cases, however, court also held open the
possibility of punitive damages).
62 See Daniel Givelber, The Right to Minimum Social Decency and
the Limits of Evenhandedness: Intentional Infliction of Emotional Distress
by Outrageous Conduct, 82 Colum. L. Rev. 42, 43 (1982) (a kind of private
due process in dealings among unequals).
63 See Bevan v. Fix, 42 P.3d 1013 (Wyo. 2002).
64 Langeslag v. KYMN, Inc., 664 N.W.2d 860 (Minn. 2003)
(employee’s false reports to police that employer had committed crimes).
65 Lees v. Sea Breeze Health Care Ctr., Inc., 391 F.Supp.2d 1103
(S.D. Ala. 2005) (employer’s alleged retaliation against employee who
joined Air Force Reserve, policy set by federal statute); Cabaness v.
Thomas, 232 P.3d 486 (Utah 2010) (supervisor committed serious safety
violation by ordering crew member to use jackhammer near live electrical
wires); but see Lybrand v. Trask, 31 P.3d 801 (Alaska 2001) (a sign
painted on the defendant’s roof which violated ordinance was nevertheless
not outrageous).
66 See McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998)
(physician fondles patient); Drejza v. Vaccaro, 650 A.2d 1308 (D.C. 1994)
(police officer belittled rape victim); Schmidt v. Mt. Angel Abbey, 223 P.3d
399 (Or. 2009) (priest engaged minor seminary student in sexual acts);
Doe v. Corporation of President of Church of Jesus Christ of Latter-Day
Saints, 141 Wash.App. 407, 167 P.3d 1193 (2007) (church official allegedly
counseled teenaged church member not to report sexual abuse by
stepfather, telling her that she would be the subject of church gossip, and
responsible for her family breaking up, if she did so).
67 See 2 Dobbs, Hayden & Bublick, The Law of Torts §§ 386–87 (2d
ed. 2011 & Supp.).
68 Bratton v. McDonough, 91 A.3d 1050 (Me. 2014).
69 See Restatement Second of Torts § 46 illus. 9 (1965).
70 A refusal to rent to African Americans or to tenants with children,
for example, may require an emotional distress award, although no
physical harm is inflicted. Johnson v. Hale, 940 F.2d 1192 (9th Cir. 1991)
(under federal statute); Human Rights Comm’n v. LaBrie, Inc., 164 Vt.
237, 668 A.2d 659 (1995) (under state statute).
71 Ford v. Revlon, Inc., 153 Ariz. 38, 734 P.2d 580 (1987); McQuay v.
Guntharp, 336 Ark. 534, 986 S.W.2d 850 (1999) (doctor allegedly fondling
patients during physical examination); Hughes v. Pair, 209 P.3d 963 (Cal.
2009); Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 262
Cal.Rptr. 842 (1989); Kerans v. Porter Paint Co., 61 Ohio St.3d 486, 575
N.E.2d 428 (1991) (store manager’s touchings, self-exposure and sexual
requests); Kanzler v. Renner, 937 P.2d 1337 (Wyo. 1997).
72 See, e.g., Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 179
L.Ed.2d 172, 39 Media L. Rep. (BNA) 1353 (2011); Citizen Publ’g Co. v.
Miller, 210 Ariz. 513, 115 P.3d 107 (2005) (letter to the editor saying that
whenever another atrocity is inflicted upon Americans in Iraq, “we” should
“proceed to the closest mosque and execute five of the first Muslims we
encounter” rejected as IIED on First Amendment grounds); Hustler
Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). See
generally Paul T. Hayden, Religiously Motivated “Outrageous” Conduct:
Intentional Infliction of Emotional Distress as a Weapon against “Other
People’s Faiths,” 34 Wm. & Mary L. Rev. 579 (1993).
73 E.g., Hayward v. Cleveland Clinic Found., 759 F.3d 601 (6th Cir.
2014); McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998).
74 Campbell v. State Farm Mut. Auto. Ins. Co., 65 P.3d 1134 (Utah
2001), rev’d on other grounds, State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).
75 Brandon v. Cnty. of Richardson, 261 Neb. 636, 624 N.W.2d 604
(2001).
76 See, e.g., Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954).
77 Hatch v. State Farm Fire & Cas. Co., 930 P.2d 382 (Wyo. 1997).
78 See Kennedy v. Town of Billerica, 617 F.3d 520 (1st Cir. 2010);
Stump v. Ashland, Inc., 201 W.Va. 541, 499 S.E.2d 41 (1997); cf.
Millington v. Kuba, 532 N.W.2d 787 (Iowa 1995).
79 See Thornton v. Garcini, 928 N.E.2d 804 (Ill. 2010); Gamble v.
Dollar Gen. Corp., 852 So. 2d 5 (Miss. 2003); Miller v. Willbanks, 8 S.W.3d
607 (Tenn. 1999); Stump v. Ashland, Inc., 201 W.Va. 541, 499 S.E.2d 41
(1997).
80 Restatement Second of Torts § 46 (1965); Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 46 cmt. l (2012).
81 See Curtis v. Firth, 123 Idaho 598, 601, 850 P.2d 749, 752 (1993);
Knierim v. Izzo, 22 Ill.2d 73, 85, 174 N.E.2d 157, 164 (1961); Blakeley v.
Shortal’s Estate, 236 Iowa 787, 20 N.W.2d 28 (1945); Vicnire v. Ford Motor
Credit Co., 401 A.2d 148 (Me. 1979).
82 Reedy v. Evanson, 615 F.3d 197 (3rd Cir. 2010); Vallinoto v.
DiSandro, 688 A.2d 830 (R.I. 1997).
83 Lascurain v. City of Newark, 349 N.J.Super. 251, 793 A.2d 731
(2002); Russo v. White, 241 Va. 23, 400 S.E.2d 160 (1991) (340 hang up
calls from a man a woman dated once); Harris v. Jones, 281 Md. 560, 380
A.2d 611, 86 A.L.R.3d 441 (1977) (on-the-job mimicking of a speech
impediment); Grantham v. Vanderzyl, 802 So. 2d 1077 (Ala. 2001)
(defendant intentionally splashes the plaintiff’s face with blood).
Harm § 46 cmt. m (2012).
85 Id.
86 Bevan v. Fix, 42 P.3d 1013 (Wyo. 2002) (child who watched
battery of mother); cf. Kunsler ex rel. Kunsler v. Int’l House of Pancakes,
Inc., 799 N.Y.S.2d 863 (N.Y. City Civ. Ct. 2005) (analyzing child emotional
distress from allegations of theft against mother in terms of transferred
intent).
Harm § 46 cmt. i (2012).
88 See Hatch v. Davis, 147 P.3d 383 (Utah 2006).
89 Burnett v. Al Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86 (D.D.C.
2003). See also Shemenski v. Chapiesky, 2003 WL 21799941 (N.D. Ill.
2003) (false arrest of husband, wife not present could recover).
90 Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51 (D.D.C.
2010).
91 Knierim v. Izzo, 22 Ill. 2d 73, 174 N.E.2d 157 (1961).
92 Blakeley v. Shortal’s Estate, 236 Iowa 787, 20 N.W.2d 28 (1945).
93 Burnett v. Al Baraka Inv. & Dev. Corp., 274 F.Supp.2d 86 (D.D.C.
2003); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C. 2001),
aff’d, Bettis v. Islamic Republic of Iran, 315 F.3d 325 (D.C. Cir. 2003)
(siblings of victim tortured in Iran could recover for intentional infliction of
emotional distress but not nieces and nephews, drawing the line as “family
members” rather than at “presence”).
94 Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22
(Tenn. 2005).
95 Cf. Hatch v. Davis, 147 P.3d 383 (Utah 2006) (relationship of
target to the plaintiff is one factor to be considered in permitting recovery
by an absent plaintiff).
96 Homer v. Long, 90 Md.App. 1, 599 A.2d 1193 (1992); cf. Argoe v.
Three Rivers Behavioral Ctr. & Psychiatric Solutions, 388 S.C. 394, 697
S.E.2d 551 (2010); Moseng v. Frey, 822 N.W.2d 464, 34 I.E.R. Cas. (BNA)
927 (N.D. 2012).
97 See Horak v. Biris, 130 Ill.App. 3d 140, 474 N.E.2d 13, 85 Ill.Dec.
599 (1985); Rowe v. Bennett, 514 A.2d 802 (Me. 1986). Cf. Destefano v.
Grabrian, 763 P.2d 275 (Colo. 1988) (clergy person providing marriage
counseling to both spouses); Marlene F. v. Affiliated Psychiatric Med.
Clinic, Inc., 48 Cal. 3d 583, 770 P.2d 278, 257 Cal. Rptr. 98 (1989)
(negligence case, therapist treating both mother and son who molested
son).
98 E.g., A.W. v. Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d 907
(Neb. 2010); Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7 (2010).
99 It has been argued, however, that the distinction between physical
and emotional is not helpful given the physical basis for emotional
phenomena. See Oscar Gray, Commentary, 44 Wake Forest L. Rev. 1193
(2009).
100 E.g., Gregory C. Keating, Is Negligent Infliction of Emotional
Distress a Freestanding Tort?, 44 Wake Forest L. Rev. 1131 (2009)
(arguing that the rules for negligent infliction of emotional distress are
best seen as rules of proximate cause rather than rules of duty).
Harm §§ 47–48 (2012). A very small number of states continue to resist
this trend and reject the stand-alone mental distress claim. See Dowty v.
Riggs, 385 S.W.3d 117 (Ark. 2010).
Harm §§ 47–48 (2012).
103 Id. § 47 cmt. a (2012).
104 Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C. 2011);
see Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 47 (2012); Dan B. Dobbs, Undertakings and Special Relationships
in Claims for Negligent Infliction of Emotional Distress, 50 Ariz. L. Rev.
49 (2008); §§ 29.14–29.15.
Harm § 48 (2012); § 29.10.
106 Cf. Paul v. Providence Health System-Oregon, 351 Or. 587, 273
P.3d 106 (2012) (no recovery based on a future risk of identity theft risked
by the theft of digital records).
107 See Hawkins v. Scituate Oil Co., Inc., 723 A.2d 771 (R.I. 1999)
(defendant poured oil down wrong pipe, flooding basement and
dispossessing owners; recovery for inconvenience, discomfort, and
annoyance). But see In re Air Crash at Belle Harbor, N.Y. on Nov. 12,
2001, 450 F.Supp.2d 432 (S.D.N.Y. 2006).
108 Nichols v. Sukaro Kennels, 555 N.W.2d 689, 61 A.L.R.5th 883
(Iowa 1996); McDougall v. Lamm, 211 N.J. 203, 48 A.3d 312 (2012)
(reviewing many authorities); Petco Animal Supplies v. Schuster, 144
S.W.3d 554 (Tex. App. 2004); Rabideau v. City of Racine, 243 Wis.2d 486,
627 N.W.2d 795 (2001); Scheele v. Dustin, 998 A.2d 697 (Vt. 2010)
(although court may accept alternate means of valuing worth of a pet,
noneconomic damages are not available).
109 See Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 121 P.3d 1256 (2005).
110 Statutory actions that permit recovery for emotional distress may
not require severe distress. See Vortex Fishing Sys., Inc. v. Foss, 38 P.3d
836 (Mont. 2001). It is also possible that severe distress is not required
when the distress is evidenced by physical symptoms. Henricksen v. State,
84 P.3d 38 (Mont. 2004).
111 See, e.g., Spangler v. Bechtel, 931 N.E.2d 387, 393 (Ind. Ct. App.
2010) (damages related to stillbirth of child), rev’d on other grounds, 958
N.E.2d 458 (Ind. 2011).
112 Feller v. First Interstate Bancsystem, Inc., 299 P.3d 338 (Mont.
2013); Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843, 473 N.Y.S.2d
357 (1984); Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327
N.C. 283, 304, 395 S.E.2d 85, 97 (1990); Larsen v. Banner Health Sys., 81
P.3d 196 (Wyo. 2003).
113 See Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996).
114 See § 29.12.
115 See Perodeau v. City of Hartford, 259 Conn. 729, 754, 792 A.2d
752, 767 (2002).
116 Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 379 P.2d
513, 29 Cal.Rptr. 33 (1963), overruled in Dillon v. Legg, 68 Cal.2d 728, 69
Cal.Rptr. 72 441 P.2d 912 (1968).
117 See § 29.12.
119 Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979); Bovsun v.
Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984); cf.
Rickey v. Chicago Transit Auth., 98 Ill.2d 546, 457 N.E.2d 1, 75 Ill.Dec.
211 (1983).
120 Stacy v. Rederiet Otto Danielsen, A.S., 609 F.3d 1033 (9th Cir.
2010).
121 E.g., Siegel v. Ridgewells, Inc., 511 F.Supp.2d 188 (D.D.C. 2007);
Grube v. Union Pac. R.R., 256 Kan. 519, 886 P.2d 845 (1994) (under
FELA); Coleson v. City of New York, 24 N.E.3d 1074 (N.Y. 2014); Leo v.
Hillman, 164 Vt. 94, 665 A.2d 572 (1995).
122 Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396,
129 L.Ed.2d 427 (1994); cf. Goodrich v. Long Island R.R. Co., 654 F.3d 190,
32 I.E.R. Cas. (BNA) 1662 (2d Cir. 2011) (applying “zone of danger”
requirement in intentional infliction of emotional distress case brought
under FELA). The zone of danger test has also been applied in cases
brought under federal admiralty law. See Chaparro v. Carnival Corp., 693
F.3d 1333 (11th Cir. 2012).
123 Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 467 N.E.2d 502, 478
N.Y.S.2d 838 (1984); but cf. Perry-Rogers v. Obasaju, 282 A.D.2d 231, 723
N.Y.S.2d 28 (2001) (embryo containing plaintiffs’ genetic material
mistakenly implanted in another woman, claim stated).
124 Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968).
125 E.g., Zell v. Meek, 665 So.2d 1048 (Fla. 1995); Smith v. Toney, 862
N.E.2d 656 (Ind. 2007); Mississippi State Fed’n of Colored Women’s Club
Housing for Elderly in Clinton, Inc. v. L.R., 62 So.3d 351 (Miss. 2010); St.
Onge v. MacDonald, 154 N.H. 768, 917 A.2d 233 (2007). See Dale Joseph
Gilsinger, Annotation, Recovery under State Law for Negligent Infliction
of Emotional Distress under Rule of Dillon v. Legg, 68 Cal.2d 728, 69
Cal.Rptr. 72, 441 P.2d 912 (1968), or Refinements Thereof, 96 A.L.R.5th
107 (2002).
126 Catron v. Lewis, 271 Neb. 416, 712 N.W.2d 245 (2006).
Harm §§ 47–48 (2012).
128 Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980).
129 In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 450
F.Supp. 2d 432 (S.D.N.Y. 2006); Hegel v. McMahon, 136 Wash.2d 122, 960
P.2d 424 (1998); Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627,
517 N.W.2d 432 (1994).
130 Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000) (“came on the scene
soon after the death or severe injury”); Gabaldon v. Jay-Bi Property
Mgmt., Inc., 925 P.2d 510 (N.M. 1996) (plaintiff must be a witness “either
when the injury occurs or soon after, but before the arrival of emergency
medical professionals at the scene”); Eskin v. Bartee, 262 S.W.3d 727
(Tenn. 2008) (observation at the scene of the accident before the scene has
been “materially altered”); Colbert v. Mooba Sports, Inc., 163 Wash.2d 43,
176 P.3d 497 (2008) (plaintiff must arrive at scene shortly after the
accident happened).
131 Beck v. State, 837 P.2d 105 (Alaska 1992).
132 Fernandez v. Walgreen Hastings Co., 968 P.2d 774 (N.M. 1998).
133 Finnegan ex rel. Skoglind v. Wis. Patients Comp. Fund, 263
Wis.2d 574, 666 N.W.2d 797 (2003).
134 Doe Parents No. 1 v. State Dep’t of Educ., 100 Haw. 34, 58 P.3d
545 (2002).
135 Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000) (relationship must be
“analogous to” that of spouse, parent, child, grandparent, grandchild). See
also Dale Joseph Gilsinger, Annotation, Relationship Between Victim and
Plaintiff-Witness as Affecting Right to Recover under State Law for
Negligent Infliction of Emotional Distress Due to Witnessing Injury to
Another Where Bystander Plaintiff Is Not Member of Victim’s Immediate
Family, 98 A.L.R.5th 609 (2002).
136 Hislop v. Salt River Project Agric. Improvement & Power Dist., 5
P.3d 267 (Ariz. Ct. App. 2000) (coworker put out flames when coworker
was engulfed in fire and got him to the hospital); Michaud v. Great N.
Nekoosa Corp., 715 A.2d 955 (Me. 1998) (diver attempting underwater
rescue of trapped coworker saw the worker pulled apart when surface
workers attempted to pull him out of trap by a chain); Migliori v. Airborne
Freight Corp., 426 Mass. 629, 690 N.E.2d 413 (1998) (bystander gave auto-
victim CPR, but saw her bleeding from eyes, nose and elsewhere). The
majority in a House of Lords decision likewise refused to treat rescuers
differently from other bystanders and accordingly disallowed recovery in
White v. Chief Constable of South Yorkshire, [1999] 2 A.C. 455, [1999] 1
All E.R. 1.
137 See Kallstrom v. United States, 43 P.3d 162 (Alaska 2002); Catron
v. Lewis, 271 Neb. 416, 712 N.W.2d 245 (2006); Slaton v. Vansickle, 872
P.2d 929 (Okla. 1994).
138 M.H. Matthews, Negligent Infliction of Emotional Distress: A
View of the Proposed Restatement (Third) Provisions from England, 44
Wake Forest L. Rev. 1177 (2009).
139 Smith v. Toney, 862 N.E.2d 656 (Ind. 2007); Grotts v. Zahner, 115
Nev. 339, 989 P.2d 415 (1999); Zimmerman v. Dane Cnty., 329 Wis.2d 270,
789 N.W.2d 754 (Ct. App. 2010).
140 Moon v. Guardian Postacute Servs., Inc., 95 Cal.App. 4th 1005,
116 Cal.Rptr. 2d 218, 98 A.L.R.5th 767 (2002).
141 Eskin v. Bartee, 262 S.W.3d 727, 740 n.31 (Tenn. 2008).
142 Trombetta v. Conkling, 82 N.Y.2d 549, 626 N.E.2d 653, 605
N.Y.S.2d 678 (1993).
143 Thompson v. Lied Animal Shelter, 2009 WL 3303733 (D. Nev.
2009); Rabideau v. City of Racine, 243 Wis.2d 486, 627 N.W.2d 795 (2001);
Scheele v. Dustin, 998 A.2d 697 (Vt. 2010) (denying claim for loss of
companionship).
144 Graves v. Estabrook, 818 A.2d 1255 (N.H. 2003); Yovino v. Big
Bubba’s BBQ, LLC, 896 A.2d 161 (Conn. Super. Ct. 2006).
145 So provided in Cal. Civ. Code § 1714.01.
146 See, e.g., Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000); Eskin v.
Bartee, 262 S.W.3d 727 (Tenn. 2008).
147 See Estate of Heiser v. Islamic Republic of Iran, 659 F.Supp.2d 20
(D.D.C. 2009) (non-adoptive stepfathers were “functional equivalent” of
fathers and count as closely related family).
148 The factors are: (1) the duration of the relationship; (2) the degree
of mutual dependence; (3) the extent of common contributions to a life
together; (4) the extent and quality of shared experience; (5) whether the
plaintiff and the victim were members of the same household; (6) their
emotional reliance upon each other; (7) the particulars of their day-to-day
relationship; and (8) the manner in which they related to each other in
attending to life’s mundane requirements. See St. Onge v. MacDonald, 154
N.H. 768, 917 A.2d 233 (2007) (applying factors to deny recovery to a
woman who was a passenger on a motorcycle driven by her boyfriend of six
months, who was killed).
149 See also Eskin v. Bartee, 262 S.W.3d 727 (Tenn. 2008) (placing the
burden on the plaintiff to “prove the existence of the close and intimate
personal relationship” and allowing defendant to contest it).
150 Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979); Hislop v. Salt
River Project Agric. Improvement & Power Dist., 5 P.3d 267 (Ariz. Ct. App.
2000).
151 Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814
(1989). See also Bird v. Saenz, 28 Cal.4th 910, 123 Cal.Rptr. 2d 465, 51
P.3d 324 (2002). Cf. Ess v. Eskaton Props., Inc., 97 Cal.App.4th 120, 118
Cal.Rptr.2d 240 (2002) (plaintiff not present when sister was sexually
attacked by intruder in defendant’s nursing home, no recovery for
distress).
152 Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996); Bowen v.
Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 517 N.W.2d 432 (1994)
(injury to primary victim must be serious or fatal; the plaintiff must
witness some extraordinary event, but that might include arriving at the
scene of an accident after it had occurred, and the plaintiff must be spouse,
parent, child, grandparent or sibling of injured person); Heldreth v. Marrs,
188 W.Va. 481, 425 S.E.2d 157 (1992) (injury to primary victim must be
serious or fatal).
153 New Jersey, for example, follows a Thing-like rule for bystanders,
but allows a non-bystander to sue only if she “suffers substantial bodily
injury or sickness arising from the plaintiff’s location within the zone of
risk created by the defendant’s negligent conduct.” Jablonowska v. Suther,
195 N.J. 91, 948 A.2d 610 (2008).
154 Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky. 2009);
Erickson v. U-Haul Int’l, 767 N.W.2d 765 (Neb. 2009); Wal-Mart Stores,
Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993).
155 Millington v. Se. Elevator Co., Inc., 22 N.Y.2d 498, 239 N.E.2d
897, 293 N.Y.S.2d 305 (1968); Blunt v. Medtronic, Inc., 760 N.W.2d 396
(Wis. 2009). However, some courts still do not permit loss of consortium
claims brought by husband or wife. See Cardenas v. Muangman, 998 A.2d
303 (D.C. 2010) (Virginia law does not, although D.C. law does).
156 Laws v. Griep, 332 N.W.2d 339 (Iowa 1983); Nicholson v. Hugh
Chatham Mem. Hosp., Inc., 300 N.C. 295, 266 S.E.2d 818 (1980).
157 Children’s claims for loss of parental consortium began to be
recognized in 1980 with the decision in Ferriter v. Daniel O’Connell’s Sons,
Inc., 381 Mass. 507, 413 N.E.2d 690, 11 A.L.R.4th 518 (1980), superceded
by statute, Sheehan v. Weaver, 7 N.E.3d 459 (Mass. 2014). Other courts
gradually accepted the claim throughout the 1980s and 1990s. By 1997,
about 16 courts had done so. See Giuliani v. Guiler, 951 S.W.2d 318 (Ky.
1997) (where mother died and a separate wrongful death suit was
pending). Wrongful death statutes now frequently permit recoveries for
lost consortium. Jean C. Love, Tortious Interference with the Parent-Child
Relationship: Loss of an Injured Person’s Society and Companionship, 51
Ind. L.J. 591 (1976).
158 Mendillo v. Bd. of Educ. of E. Haddam, 246 Conn. 456, 717 A.2d
1177 (1998); Harrington v. Brooks Drugs, Inc., 148 N.H. 101, 808 A.2d 532
(2002); Taylor v. Beard, 104 S.W.3d 507 (Tenn. 2003).
159 North Pacific Ins. Co. v. Stucky, 338 P.3d 56 (Mont. 2014); Rolf v.
Tri State Motor Transit Co., 91 Ohio St.3d 380, 745 N.E.2d 424 (2001).
160 Howard Frank, M.D., P.C. v. Superior Court, 150 Ariz. 228, 722
P.2d 955 (1986) (adult child, severe brain damage); Masaki v. General
Motors Corp., 71 Haw. 1, 780 P.2d 566 (1989).
161 See Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003).
162 E.g., Elgin v. Bartlett, 994 P.2d 411 (Colo. 1999) (citing cases).
163 See Rothstein v. Orange Grove Ctr., Inc., 60 S.W.3d 807 (Tenn.
2001) (filial consortium recoverable under death statute).
164 Fernandez v. Walgreen Hastings Co., 126 N.M. 263, 968 P.2d 774
(1998).
165 Boeken v. Philip Morris USA, Inc., 230 P.3d 342 (Cal. 2010).
166 Id.; Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky. 2009)
(loss of consortium damages do not cease at the death of the injured party).
167 Sawyer v. Bailey, 413 A.2d 165 (Me. 1980); Hite v. Brown, 100
Ohio App.3d 606, 654 N.E.2d 452 (1995).
168 Doerner v. Swisher Int’l, Inc., 272 F.3d 928 (7th Cir. 2001).
169 Leonard v. John Crane, Inc., 206 Cal.App.4th 1274, 142
Cal.Rptr.3d 700 (2012) (allowing loss-of-consortium claim by wife of man
whose exposure to asbestos predated their marriage, recognizing a split in
authority among other states on the issue).
170 Lyons v. Vaughan Reg’l Med. Ctr., LLC, 23 So.3d 23 (Ala. 2009);
Voris v. Molinaro, 302 Conn. 791, 31 A.3d 363 (2011) (settlement of the
predicate personal injury claim extinguishes the derivative claim for loss
of consortium); Murray v. Motorola, Inc., 982 A.2d 764 (D.C. 2009);
Erickson v. U-Haul Int’l, 767 N.W.2d 765 (Neb. 2009); Fiorenzano v. Lima,
982 A.2d 585 (R.I. 2009); Blunt v. Medtronic, Inc., 760 N.W.2d 396 (Wis.
2009); contra Beaver v. Grand Prix Karting Ass’n, Inc., 246 F.3d 905 (7th
Cir. 2001) (pre-injury release by injured spouse does not bar consortium
claim of other spouse; Indiana law).
171 Possibly the claim is “derivative” in the sense that it will be
affected by the primary victim’s contributory negligence or comparative
fault but “independent” in the sense that it cannot be released by the
primary victim. Compare Kibble v. Weeks Dredging & Constr. Co., 161
N.J. 178, 735 A.2d 1142 (1999), with Tichenor v. Santillo, 218 N.J. Super.
165, 527 A.2d 78 (1987). But see Massengale v. Pitts, 737 A.2d 1029 (D.C.
1999) (defendant must be negligent but spouse’s contributory negligence
does not bar consortium claim); Feltch v. Gen. Rental Co., 383 Mass. 603,
421 N.E.2d 67 (1981) (refusing to reduce a wife’s consortium recovery
because of the husband’s contributory fault).
172 Ruiz v, Podolsky, 50 Cal.4th 838, 237 P.3d 584 (2010) (Medical
Injury Compensation Reform Act bound patient’s adult children to
arbitrate loss of consortium claims); Proctor v. Washington Metro. Area
Transit Auth., 990 A.2d 1048 (Md. 2010) (statutory cap on noneconomic
damages claim applied to loss of consortium action); Smith v. HCA Health
Servs. of N.H., 977 A.2d 534 (N.H. 2009) (expert testimony was required
for loss of consortium claim related to hospital’s refusal to release patient).
173 See Wesche v. Mecosta Cnty. Rd. Comm’n, 267 Mich.App. 274, 705
N.W.2d 136 (2005), overruled so far as it interposed a governmental
immunity to bar the consortium claim, Kik v. Sbraccia, 272 Mich.App. 388,
726 N.W.2d 450 (2006).
174 Kelley v. Centennial Contractors Enters., 236 P.3d 197 (Wash.
2010) (genuine issue of material fact as to whether joinder of children’s
loss of consortium claim was feasible); 2 Dan B. Dobbs, The Law of
Remedies § 8.1 (5) (1993). Some courts regard joinder as the preferred
solution, but do not necessarily require it. See Evans v. Dayton Hudson,
234 Cal.App. 3d 49, 285 Cal.Rptr. 550 (1991).
175 Cal. Civ. Code § 1714.01 (negligent infliction of emotional distress
may be brought by domestic partner); Cal. Civ. Pro. Code § 377.60
(domestic partner has standing to bring wrongful death action); Vt. Stat.
Ann. tit. 15 §§ 1204(a) & 1204(e)(2) (civil union permitted between persons
of same sex, generally granting rights of married persons and specifically
including right to sue for wrongful death). The California statutes displace
Elden v. Sheldon, 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582 (1988),
which dismissed an action brought by an unmarried cohabitant.
176 Surette v. Islamic Republic of Iran, 231 F.Supp.2d 260 (D.D.C.
2002) (“This result is justified by the nature and closeness of the
relationship between Beverly Surette and William Buckley for over twenty
years, a bond that was the functional equivalent of a legal marriage. The
strength of their ‘close emotional relationship,’ was recognized by
Buckley’s family, his colleagues and his employer, and it merits
recognition by this Court”); Mueller v. Tepler, 95 A.3d 1011 (Conn. 2014);
Graves v. Estabrook, 149 N.H. 202, 818 A.2d 1255 (2003); Dunphy v.
Gregor, 136 N.J. 99, 642 A.2d 372 (1994).
177 Lozoya v. Sanchez, 66 P.3d 948 (N.M. 2003), overruled on other
gorunds, Heath v. La Mariana Apartments, 180 P.3d 664 (N.M. 2008).
178 But see Connor v. Hodges, 333 P.3d 130 (Idaho 2014) (loss of
consortium claim “is predicated on the existence of marriage”).
179 Richardson v. Children’s Hosp., 797 N.W.2d 235 (Neb. 2010)
(attorney suggested jury consider the $35 per day they were compensated
for jury service when determining award for mother of deceased child).
180 Rutherford v. State, 605 P.2d 16 (Alaska 1979).
181 Board of Comm’rs v. Nevitt, 448 N.E.2d 333, 344 (Ind. Ct. App.
1983).
182 E.g., Mealy v. B-Mobile, Inc., 195 Cal.App.4th 1218, 124
Cal.Rptr.3d 804 (2011) (applying bystander rule to plaintiffs’ negligent
infliction of emotional distress claim, but not to separate loss of consortium
claim).
183 Morgan v. Scott, 291 S.W.3d 622 (Ky. 2009) (upholding $4 million
verdict for personal injury and loss of consortium arising out of car
accident).
184 In Arpin v. U.S., 521 F.3d 769 (7th Cir. 2008), Judge Posner
imported some of the factors used to limit punitive damages under the
Supreme Court’s constitutional rulings, including a ratio between
compensatory (economic) damages and the consortium award. However, in
wrongful death cases such as Arpin itself, such a limitation seems
particularly inappropriate because wrongful pecuniary damages in such
actions depend mainly upon prospective earnings of the deceased, which
bear no standard relationship at all to the loss of the deceased
companionship and consortium.
185 Mitchell v. Rochester Ry. Co., 45 N.E. 354 (N.Y. 1896), overruled
by Battalla v. State, 176 N.E.2d 729 (N.Y. 1961).
186 See Rickey v. Chicago Transit Auth., 98 Ill.2d 546, 457 N.E.2d 1,
75 Ill.Dec. 211 (1983) (reviewing some of the cases and concluding that in
the light of the mechanical or formal application of the rule, impact should
not be required).
187 Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1896).
188 E.g., Battalla v. State, 10 N.Y.2d 237, 176 N.E.2d 729, 219
N.Y.S.2d 34 (1961); Rickey v. Chicago Transit Auth., 98 Ill.2d 546, 457
N.E.2d 1, 75 Ill.Dec. 211 (1983); Osborne v. Keeney, 399 S.W.3d 1 (Ky.
2012).
189 Chouinard v. Health Ventures, 179 Or.App. 507, 39 P.3d 951
(2002); Patterson v. Ind. Newspapers, Inc., 589 F.3d 357 (7th Cir. 2009);
Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011); Atlantic Coast Airlines v.
Cook, 857 N.E.2d 989 (Ind. 2006) (emotional distress resulting from an
out-of-control passenger on a commercial flight not long after 9/11 and
even closer in time to the foiled shoe-bomber would not be recoverable;
there was no impact from the passenger’s thuds in the cabin or his illicit
smoking and emotional distress was transient).
190 E.g., Fla. Dep’t of Corr. v. Abril, 969 So.2d 201 (Fla. 2007) (impact
generally required, but not when the emotional distress was caused by a
clinical laboratory’s breach of a statutory duty of confidentiality); Hagan v.
Coca-Cola Bottling Co., 804 So.2d 1234 (Fla. 2001) (ingestion of
contaminated food or drink; ingestion is impact or alternatively, this is an
exception to impact requirement); Tanner v. Hartog, 696 So. 2d 705 (Fla.
1997); Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82 (Ga. 2000).
191 Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 117
S.Ct. 2113, 138 L.Ed.2d 560 (1997) (at least in toxic exposure cases
symptoms are required to sustain the action); Keck v. Jackson, 122 Ariz.
114, 593 P.2d 668 (1979); Willis v. Gami Golden Glades, LLC, 967 So.2d
846 (Fla. 2007); Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1
(Miss. 2007) (to recover for negligently-caused emotional distress, plaintiff
must prove “a resulting physical illness or assault upon the mind,
personality or nervous system of the plaintiff which is medically
cognizable and which requires or necessitates treatment by the medical
profession”).
192 Armstrong v. Paoli Mem’l Hosp., 430 Pa.Super. 36, 633 A.2d 605
(1993).
193 Johnson v. Ruark Obstetrics & Gynecology Assocs., 327 N.C. 283,
395 S.E.2d 85 (1990); See Hegel v. McMahon, 136 Wash.2d 122, 134, 960
P.2d 424, 431 (1998).
194 Wilson v. Sears, Roebuck & Co., 757 F.2d 948 (8th Cir. 1985).
195 In a Rhode Island case, the defendant negligently delivered the
plaintiff’s child, causing the child overwhelming brain damage. Although
the mother would live with the burden of caring for a child nearly totally
devastated in mind and body, the court insisted that if the mother had no
physical symptoms of emotional harm she could not recover because
emotional harm is too easy to feign. Reilly v. United States, 547 A.2d 894
(R.I. 1988).
196 See Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433 (Me.
1982); Sacco v. High Country Indep. Press, Inc., 271 Mont. 209, 896 P.2d
411 (1995); Folz v. State, 110 N.M. 457, 797 P.2d 246 (1990); Johnson v.
State, 37 N.Y.2d 378, 334 N.E.2d 590, 372 N.Y.S.2d 638 (1975); Camper v.
Minor, 915 S.W.2d 437 (Tenn. 1996); Hegel v. McMahon, 136 Wash.2d 122,
134, 960 P.2d 424, 431 (1998); Bowen v. Lumbermens Mut. Cas. Co., 183
Wis.2d 627, 517 N.W.2d 432 (1994) (in bystander cases); Gates v.
Richardson, 719 P.2d 193 (Wyo. 1986).
197 Pennsylvania abolished the physical manifestations requirement
in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), but that turned out to
be the rule only for bystander cases. See Simmons v. Pacor, Inc., 543 Pa.
664, 674 A.2d 232 (1995).
198 Alaska and Illinois eliminated the physical manifestation
requirement in direct victim cases only. Chizmar v. Mackie, 896 P.2d 196
(Alaska 1995); Corgan v. Muehling, 143 Ill.2d 296, 574 N.E.2d 602, 158
Ill.Dec. 489 (1991).
199 When an independent cause of action is shown—invasion of
privacy, for example—the requirement of bodily harm is dropped. See, e.g.,
Fairfax Hosp. v. Curtis, 254 Va. 437, 492 S.E.2d 642 (1997) (medical
providers release of plaintiff’s confidential records was actionable for
emotional harm without physical harm).
Harm § 47 cmt. j and § 48 cmt. i (2012).
201 Sacco v. High Country Indep. Press, Inc., 271 Mont. 209, 220 896
P.2d 411, 418 (1995).
202 Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996).
203 See Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996).
204 See Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008).
205 See Ennett v. Cumberland Cnty. Bd. of Educ., 698 F.Supp.2d 557
(E.D.N.C. 2010) (applying foreseeability and severity test for NIED to bar
claim on the ground that superintendent’s conduct, which was intentional,
was not extreme and outrageous). For a discussion of Tennessee claims
after the shift in standard see Daniel E. Wanat, Infliction of Emotional
Injury: The General Negligence Claim within Serious or Severe Injury
Limits as Proven by Medical or Scientific Evidence—The Tennessee
Common Law Approach, 36 U. Mem. L. Rev. 233 (2006) (citing
requirement of proof through medical experts as the problem with
Tennessee’s approach).
206 See Hall v. Bergman, 994 A.2d 666 (Conn. 2010) (listing
forseeability, severity, causation and negligent risk of emotional distress
as the main factors in an NIED claim). See also Osborne v. Keeney, 399
S.W.3d 1 (Ky. 2012) (reversing longstanding precedent: physical impact is
not required to recover for claims involving emotional distress; plaintiff
must show elements of negligence plus, by presenting expert testimony, a
severe or serious emotional injury).
207 See § 14.11 on loss of a chance.
208 Ferrara v. Galluchio, 5 N.Y.2d 16, 152 N.E.2d 249, 176 N.Y.S.2d
996 (1958).
209 CSX Transp., Inc. v. Hensley, 556 U.S. 838, 129 S.Ct. 2139, 173
L.Ed.2d 1184 (2009); Norfolk & W. Ry. v. Ayers, 538 U.S. 135, 123 S.Ct.
1210, 155 L.Ed.2d 261 (2003) (plaintiff suffering from asbestosis as a
result of exposure for which defendant was responsible could recover for
fear of future cancer, even if such cancer would not result from the
asbestosis injury but from the exposure; the cancer “need not be more
likely than not to materialize”); Eagle-Picher Indus., Inc. v. Cox, 481 So. 2d
517 (Fla. Dist. Ct. App. 1985).
210 Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984).
211 See David Carl Minneman, Annotation, Future Disease or
Condition, or Anxiety Relating Thereto, as Element of Recovery, 50
A.L.R.4th 13 (1987).
212 Gilliam v. Roche Biomedical Labs., Inc., 989 F.2d 278 (8th Cir.
1993).
213 In one type of case the plaintiff’s distress during the “window of
anxiety” period is severe enough to cause permanent or lasting harm that
may go on for years. See Chizmar v. Mackie, 896 P.2d 196, 206 (Alaska
1995) (misdiagnosis of AIDS; “we do not foreclose the possibility that a
plaintiff may be able to establish, through appropriate expert testimony,
long-term emotional trauma proximately related to the defendant’s
negligent conduct”); cf. Doe v. Arts, 360 N.J. Super. 492, 823 A.2d 855
(2003) (misdiagnosis of AIDS; seemingly approving recovery for long-term
harm outside the window of anxiety period where the harm was inflicting
during that period); Ornstein v. N.Y.C. Health & Hosp. Corp., 881 N.E.2d
1187 (N.Y. 2008) (permitting nurse to seek damages beyond six months
after exposure despite her negative HIV tests).
214 Exxon Mobil Corp. v. Albright, 71 A.3d 30 (Md.), on
reconsideration in part, 71 A.3d 50 (Md.), and cert. denied, 134 S.Ct. 648
(2013) (state standard for emotional distress damages for fear of
contracting a latent disease because of toxic exposure).
215 Coca-Cola Bottling Co. v. Hagan, 813 So.2d 167 (Fla. Dist. Ct.
App. 2002). See also Laurel v. Prince, 154 So.3d 95 (Ala. 2014).
216 Majca v. Beekil, 183 Ill.2d 407, 701 N.E.2d 1084, 233 Ill.Dec. 810
(1998); Carroll v. Sisters of Saint Francis Health Servs., Inc., 868 S.W.2d
585 (Tenn. 1993).
217 Barrett v. Danbury Hosp., 232 Conn. 242, 654 A.2d 748 (1995)
(rejecting the actual exposure test but concluding as a matter of law that
the plaintiff’s fear was not reasonable).
218 In K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995), the plaintiff’s
physician had lesions on his hands and forearms. He performed
gynecological examinations upon the plaintiff and others. He tested
positive for HIV (the AIDS virus), so there was a risk to his patients in
spite of the fact that he used gloves in performing the examinations. The
court imported the zone of danger rule from the fear-for-another setting
and held that the plaintiff could not recover for emotional distress at her
fear that she might suffer AIDS. She had not demonstrated “actual
exposure.”
219 Faya v. Almaraz, 329 Md. 435, 620 A.2d 327 (1993) (doctor’s
invasive operations on women without informing patient that he was an
HIV carrier; recovery for the window of anxiety period); S. Cent. Reg’l
Med. Ctr. v. Pickering, 749 So. 2d 95 (Miss. 1999) (unsafe disposal of
instruments, rebuttable presumption in favor of the plaintiff); Madrid v.
Lincoln Cnty. Med. Ctr., 923 P.2d 1134 (N.M. 1996) (blood containers
leaked onto plaintiff’s hand; plaintiff had papercuts, but did not know
whether blood was infected); Hartwig v. Oregon Trail Eye Clinic, 254 Neb.
777, 580 N.W.2d 86 (1998); Williamson v. Waldman, 150 N.J. 232, 696
A.2d 14 (1997); Fitzgerald v. Tin, 2003 WL 4901 (B.C. S.C. 2003).
220 E.g., Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25
Cal.Rptr. 2d 550, 863 P.2d 795 (1993); see 2 Dobbs, Hayden & Bublick,
221 E.g., Russ v. W. Union Tel. Co., 222 N.C. 504, 23 S.E.2d 681
(1943).
222 Hart v. Child’s Nursing Home Co., Inc., 298 A.D.2d 721, 749
N.Y.S.2d 297 (2002) (alleged misinformation about health of mother
confined in the defendant’s nursing home did not endanger the plaintiff or
fall within any exceptions to requirement that the plaintiff be
endangered).
223 Cauman v. George Washington Univ., 630 A.2d 1104 (D.C. 1993).
224 R.J. v. Humana of Fla., Inc., 652 So. 2d 360 (Fla. 1995); Heiner v.
Moretuzzo, 73 Ohio St. 3d 80, 652 N.E.2d 664 (1995).
225 Chizmar v. Mackie, 896 P.2d 196 (Alaska 1995) (AIDS
misdiagnosis); Doe v. Arts, 360 N.J. Super. 492, 823 A.2d 855 (2003);
Brammer v. Dotson, 190 W.Va. 200, 437 S.E.2d 773 (1993).
226 Friedman v. Merck & Co., 107 Cal.App. 4th 454, 131 Cal.Rptr.2d
885 (2003).
227 Thompson v. Lied Animal Shelter, 2009 WL 3303733 (D. Nev.
2009) (animal shelter represented to the out-of-town plaintiff that his dog
would be kept safe for 13 days, but instead the dog was euthanized
without notice before the plaintiff reached the shelter).
228 See § 43.5.
229 §§ 43.2–43.5. Examples include Cornell v. Wunschel, 408 N.W.2d
369 (Iowa 1997); Fetick v. Am. Cyanamid Co., 38 S.W.3d 415 (Mo. 2001).
230 See McConkey v. Aon Corp., 354 N.J. Super. 25, 804 A.2d 572
(2002) (suggesting that the severe emotional harm requirement would be
applied if argued by attorneys); Bailey v. Searles-Bailey, 746 N.E.2d 1159
(Ohio Ct. App. 2001) (wife’s paramour not outrageous in nondisclosure
that he was father of husband’s putative children).
231 Dahlin v. Evangelical Child & Family Agency, 2002 WL 31557625
(N.D. Ill. 2002) (suit based on fraud, “negligence,” consisting of
misrepresentation and concealment, and breach of fiduciary duty; direct
duty to parents, hence emotional distress damages recoverable); Burr v.
Bd. of Cnty. Comm’rs of Stark Cnty., 23 Ohio St.3d 69, 491 N.E.2d 1101
(1986) (claim of fraud); Price v. State, 114 Wash.App. 65, 57 P.3d 639
(2002) (suit by adoptive parents and adoptive sibling for “negligent failure
to disclose information pertinent to an adoption decision” permits parents
to recover for emotional distress, although sibling cannot recover at all).
232 See M.H. v. Caritas Family Servs., 488 N.W.2d 282 (Minn. 1992);
Juman v. Louise Wise Servs., 254 A.D.2d 72, 678 N.Y.S.2d 611 (1998).
233 For a careful examination of this category see Dan B. Dobbs,
Undertakings and Special Relationships in Claims for Negligent Infliction
of Emotional Distress, 50 Ariz. L. Rev. 49 (2008). See also Restatement
(Third) of Torts: Liability for Physical and Emotional Harm § 47(b) (2012)
(liability for negligent conduct that causes serious emotional disturbance
when the conduct “occurs in the course of specified categories of activities,
undertakings, or relationships in which negligent conduct is especially
likely to cause serious emotional harm”). This category has been viewed as
a particularly important avenue for future development of the tort. See
Martha Chamallas, Unpacking Emotional Distress: Sexual Exploitation,
Reproductive Harm, and Fundamental Rights, 44 Wake Forest L. Rev.
1109 (2009).
234 Chesher v. Neyer, 392 F.Supp.2d 939 (S.D. Ohio 2005) (“vile”
photographs of dead bodies in county morgue, complete with props,
negligent infliction of distress actionable by relatives without proof of
physical peril to the plaintiffs); Christensen v. Superior Court (Pasadena
Crematorium of Altadena), 54 Cal.3d 868, 820 P.2d 181, 2 Cal.Rptr.2d 79
(1991); Guth v. Freeland, 96 Haw. 147, 28 P.3d 982 (2001) (duty of
reasonable care in preparing a body for final disposition; statute forbidding
recovery of emotional distress for negligent property damage does not
apply to a body); Adams v. King Cnty., 164 Wash.2d 640, 192 P.3d 891
(2008) (reaffirming a separate common law action for “tortious
interference with a dead body,” which requires willful conduct and “allows
recovery for mental suffering derived from willful misuse of a dead body”).
235 See Washington v. John T. Rhines Co., 646 A.2d 345 (D.C. 1994);
Lions Eye Bank of Tex. v. Perry, 56 S.W.3d 872 (Tex. App. 2001)
(defendant negligently but not intentionally harvested eyes of deceased
without permission, but family had no negligence claim in the absence of
contract or special relationship; the family did not qualify for recovery
under the bystander rules).
236 Christensen v. Superior Court, 54 Cal.3d 868, 2 Cal.Rptr. 2d 79,
820 P.2d 181 (1991); Boorman v. Nev. Mem’l Cremation Soc’y, 236 P.3d 4
(Nev. 2010). See also Guth v. Freeland, 96 Haw. 147, 28 P.3d 982 (2001).
237 Janicki v. Hospital of St. Raphael, 744 A.2d 963 (Conn. Super. Ct.
1999); accord, as to autopsy, Kelly v. Brigham & Women’s Hosp., 745
N.E.2d 969 (Mass. App. Ct. 2001).
238 See Washington v. John T. Rhines Co., 646 A.2d 345 (D.C. 1994)
(survivors were not in zone of danger from negligent embalming (nobody
was), hence could not recover, relying in part on zone of danger cases in
which the defendant was a stranger).
239 Burgess v. Superior Court (Gupta), 2 Cal.4th 1064, 831 P.2d 1197,
9 Cal.Rptr.2d 615 (1992).
240 Cauman v. George Washington Univ., 630 A.2d 1104 (D.C. 1993).
241 Carey v. Lovett, 132 N.J. 44, 622 A.2d 1279 (1993); Smith v.
Borello, 370 Md. 227, 804 A.2d 1151 (2002) (permitting expectant mother
to recover for emotional distress resulting from negligently inflicted loss of
nonviable fetus).
242 Broadnax v. Gonzalez, 2 N.Y.3d 148, 809 N.E.2d 645, 777 N.Y.S.2d
416 (2004). The New York Court was unwilling to recognize the same right
in the mother when the fetus was injured and born alive. However, the
court held that if the mother could prove direct injury to herself, possibly
in the form of negligent medical advice to have an abortion, then she could
recover for her emotional distress. Sheppard-Mobley v. King, 4 N.Y.3d 627,
830 N.E.2d 301, 797 N.Y.S.2d 403 (2005).
243 Pierce v. Physicians Ins. Co. of Wis., Inc., 278 Wis.2d 82, 692
N.W.2d 558 (2005) (noting that the mother was a “participant,” not merely
a bystander).
244 Toney v. Chester Cnty. Hosp., 36 A.3d 83 (Pa. 2011) (applying the
new rule to a claim by a patient against her obstetrician for the emotional
distress of seeing her child born with serious birth defects) (citing the
Treatise).
245 Corgan v. Muehling, 143 Ill.2d 296, 574 N.E.2d 602, 158 Ill.Dec.
489 (1991).
246 Larsen v. Banner Health Sys., 81 P.3d 196 (Wyo. 2003).
247 Id.
248 See Perry-Rogers v. Obasaju, 282 A.D.2d 231, 723 N.Y.S.2d 28
(2001) (plaintiff was entitled to claim damages for emotional harm caused
by losing “the opportunity of experiencing pregnancy, prenatal bonding
and the birth” of the child).
249 Curtis v. MRI Imaging Servs., II, 327 Or. 9, 956 P.2d 960 (1998).
250 Campbell v. Delbridge, 670 N.W.2d 108 (Iowa 2003) (healthcare
providers negligently failed to check chart, which would have revealed
patient’s objection to receiving blood; provider gave him blood after an
operation; the providers owed duty of care to patient not to negligently
inflict emotional harm regardless of physical injury).
251 Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 938
A.2d 1269 (2008).
252 For a deeper exploration of this theory, its limitations and possible
extensions, see Dan B. Dobbs, Undertakings and Special Relationships in
Claims for Negligent Infliction of Emotional Distress, 50 Ariz. L. Rev. 49
(2008).
253 See §§ 19.1–19.3.
254 E.g., Bailey v. Bayer Cropscience, 563 F.3d 302 (8th Cir. 2009)
(employee falsely accused of a homosexual advance reacted with panic
attacks and PTSD, a reaction that was not consistent with the reasonable
person); Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433 (Me.
1982); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Restatement
(Third) of Torts: Liability for Physical and Emotional Harm § 47 cmt. l
(2012) (the stimulus must “cause a reasonable person to suffer serious
emotional harm”).
255 As in Corgan v. Muehling, 143 Ill.2d 296, 574 N.E.2d 602, 158
Ill.Dec. 489 (1991).
256 Miley v. Landry, 582 So.2d 833 (La. 1991); Poole v. Copland, Inc.,
348 N.C. 260, 498 S.E.2d 602 (1998); see Brackett v. Peters, 11 F.3d 78
(7th Cir. 1993) (envisioning small physical harm triggering serious mental
disease); Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970); cf.
Curtis v. MRI Imaging Servs. II, 327 Or. 9, 956 P.2d 960 (1998) (panic
attacks, perhaps due to preexisting conditions, allegedly resulting from
negligently administered MRI).
257 Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48 (1960)
(defendant negligently struck the plaintiff’s car; plaintiff went into a
terrible emotional state, imagining that she had somehow struck a child
on a bicycle; recovery denied); see also McMahon v. Bergeson, 9 Wis.2d
256, 101 N.W.2d 63 (1960).
258 See Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327
N.C. 283, 395 S.E.2d 85 (1990).
259 Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148 (Alaska
2009) (patient’s husband could not maintain an action against hospital on
the basis that releasing wife with Alzheimers to daughter rather than
husband led to couple’s divorce).
260 Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009) (middle school
student’s suicide after vice principal’s stern lecture not to leave campus
without authorization was unforseen); Cramer v. Slater, 204 P.3d 508
(Idaho 2009) (medical center’s negligence in handling positive HIV test led
to patient suicide; genuine issue of material fact as to whether husband’s
conduct was superseding cause).
733
Chapter 30
NUISANCE
Analysis
§ 30.7 Remedies
__________

Private nuisance law deals primarily with the plaintiff’s right to
use and enjoy her land free from invasions, which are often
intangible and can be loosely called pollution. Private nuisance
almost always involves incompatible uses of two parcels of land.
The use-and-enjoyment side of nuisance law is now supplemented
heavily by zoning and land-use statutes and ordinances, backed by
specialized legal literature,1 which may take lawyers into the law
of unconstitutional takings of property by regulation.2 Sometimes
nuisance law and regulation work together, each supplementing
the other;3 at other times regulation displaces nuisance law.4
Dean William Prosser once described the law of nuisance as an
“impenitrable jungle.”5 This was in part because of the peculiar
history of nuisance, but more often for other reasons. Older
decisions employed broad, almost meaningless definitions6 and
bewildering terminology that can now be largely discarded.7 The
term nuisance itself, which in a lay sense means only annoyance,
was applied to a wide assortment of
734
seemingly unrelated cases.8 Judges and commentators

approached nuisance with different philosophical orientations.
Public and private nuisance were not carefully distinguished;
neither was the remedial distinction between damages and
abatement.9
Formal distinctions of an earlier era also make nuisance
confusing to contemporary observers. For instance, what might
seem like an ordinary trespass by backed up waters or sewage
might be called a nuisance in many cases,10 either because the
formalistic thinking of an earlier era would not qualify the
unintended entry as a trespass or because description of the act as
a nuisance allowed the plaintiff to penetrate the defendant’s
governmental immunity. To classify a problem as nuisance rather
than trespass is to invoke a regime of reasonable accommodation
between conflicting uses and to reject absolute rights associated
with trespass. So airplane overflights, a trespass under older
views, may be analyzed under the nuisance rules under which the
landowner’s right to enjoy her property is weighed against the
defendant’s rights.11
Quite different kinds of nuisances arise because legislatures
that wish to terminate a given land use often declare first that the
use is a nuisance. For example, statutes may declare that use of
land for prostitution is a nuisance.12 Still other cases involve
interferences with the common right and are said to be “public
nuisances,” as where a public stream is polluted, a condition that
may lead to a private right of action in certain instances.13 These
examples suggest that nuisance could not be clearly defined.
Two increasingly clear perceptions facilitate a reasonably
coherent understanding of nuisance law. First, if public and
statutory nuisance cases are set aside for separate analysis, some
paths can be marked in the remaining private nuisance tort.
Second, private nuisance does not describe any particular conduct
of the defendant, but rather a type of harm suffered by the plaintiff
—impaired enjoyment of rights in land.14
Definitions of private nuisance. A private nuisance today is a
condition15 or activity16 that interferes with the possessor’s17 use
and enjoyment of her land, typically by non-trespassory invasions18
that she cannot reasonably be expected to bear without
735
compensation.19 What the plaintiff can reasonably be expected

to bear is often determined by the character of the neighborhood,
but the utility of the defendant’s activity is also relevant.20 The
interference may cause tangible harm to the land, diminution in its
market value, or personal discomfort to its occupants. The
interference must be one that would interfere with the normal use
and enjoyment of a normal person; the interference is not a
nuisance if it interferes only with especially sensitive persons or
uses.21 Proof that the nuisance has resulted in a diminution of the
land’s market value shows or tends to show that the harm is not
merely the result of the plaintiff’s sensitivity, since loss of market
value necessarily means that potential buyers would also be
affected by the nuisance. If a nuisance exists, the defendant is
subject to liability only if he intentionally interfered with the
plaintiff’s use and enjoyment interests, or did so by engaging in
strict liability activities, or by conduct that was negligent.
Examples. The issue of nuisance often arises because the
defendant’s activity causes pollution of air, water, or land by dust
or smoke,22 odors,23 chemicals,24 or noise.25 Heavy traffic in a
neighborhood26 or an intense light shone directly into the plaintiff’s
bedroom might constitute a nuisance.27 If the defendant’s
electromagnetic radiation28 or stray voltage29 invades the land, it
is a nuisance if it is a tort at all.30
Distinguishing trespass: possession vs. enjoyment. A person who
enters another’s land may be a trespasser, and liable for
interference with the landowner’s right to possession, even if the
land is not harmed.31 But if the invasion is accomplished with
noxious odors or electromagnetic radiation, there is no trespass
claim under traditional law, because there is no interference with
possession. Instead, liability in such cases is for nuisance, which
protects the landowner’s interest in the use and enjoyment of the
736
property.32 Some contemporary cases have been impatient with

these distinctions between visible and invisible interferences, and
have treated some invasions by polluting particles as micro-
trespasses that invade possessory rights.33 At the same time, they
have sometimes used the word trespass to describe the tort but
have then proceeded to apply at least some of the rules of
nuisance.34
The significant point, however, is that the terms trespass and
nuisance stand for two different approaches to handling
interference with rights in land. To say the case is for trespass is to
declare that the rights of the plaintiff landowner brook no
interference, not even a little, not even if it is reasonable, not even
if it does no physical harm. To say that the case is for nuisance is to
insist that with some kinds of interference, liability must be
limited not only to cases of actual harm but also to cases in which
the harm is unreasonable. The question of where to draw the line
between these two regimes is perhaps less important than the
realization that courts can consciously adopt one set of rules or the
other as the facts demand. The two torts may overlap on some
facts.35
Contemporary cases say a nuisance is actionable only if the
defendant creates the nuisance either by strict liability activity, by
negligence, or by intentional interference with the plaintiff’s
enjoyment interests.36 That being so, the law of private nuisance
could be radically restated as liability for substantial and
unreasonable interference with the plaintiff’s use and enjoyment of
her land by negligent or intentional interference, or, more rarely,
by strict liability activities.
Negligence. Insofar as a supposed nuisance rests upon proof of
the defendant’s negligence, the case proceeds largely as would any
other negligence case, and the nuisance label adds little or nothing
to the analysis.37 For example, courts have said repeatedly that
when the defendant’s negligent conduct is the basis for liability in
nuisance, the plaintiff’s contributory or comparative fault is a
defense as in other
737
negligence cases.38 Similarly, compliance with regulations and

standards, though not a defense in itself, may be some evidence
that the defendant’s conduct would not be a nuisance.39 To put it
bluntly, a nuisance claim based on negligence is merely a
negligence claim with harm to interests in use and enjoyment.
When a public entity creates a nuisance, some courts will reject
common law immunities and subject the entity to liability.40
However, because a nuisance claim based on negligent acts is
merely a claim of negligence that causes loss of use and enjoyment
of land, the logical result is that immunity depends on whether the
defendant’s negligent acts called for immunity, not on the nuisance
label itself. Thus if a city negligently creates a nuisance but its
negligent acts are discretionary, it would enjoy the discretionary
immunity.41 Of course, to the extent that the conduct exceeds the
city’s immunity, suit will be permitted.42 Finally, to find a nuisance
is to say that the plaintiff can recover for loss of enjoyment, a kind
of chronic emotional harm that might be viewed more cautiously if
no nuisance is established.43
Strict liability. One unusual form of strict liability appears
when the landowner is held responsible for abating a nuisance on
his land that was created by someone else.44 In some such cases,
the landowner may be at fault, but his fault is not necessarily a
requirement, provided abatement is actually feasible. Except for
this kind of vicarious responsibility, the Restatement rule imposes
strict liability only if the plaintiff can show that the defendant
maintained or pursued an abnormally dangerous condition or
activity.45 This view finds support in the cases that deny liability
when the defendant unintentionally discharges fumes or the like
on a single occasion without knowing of the harm until after it has
occurred. If the fumes are not regarded as abnormally dangerous,
many such cases require the plaintiff to prove negligence.46 Some
thinkers believe that some strict liability should be imposed more
broadly, even when the defendant’s activity is not abnormally
dangerous,47 and some cases have stated the same view.48
Although it does not impose strict liability for a single, unintended
escape of substances that are not abnormally dangerous, the
Restatement does impose liability upon reasonable and careful
defendants who repeatedly or continuously discharge substances
that deprive the plaintiff of her rights of use and enjoyment, on a
theory of intentional invasion.
738
Intent and strict-liability effects. The defendant intends the

invasion not only when he has a purpose to invade the plaintiff’s
land, but also when he is substantially certain that his activities
will cause such an invasion.49 The defendant who attracts
indigents to a neighborhood and knows that they continuously
invade the neighbors’ rights is responsible for the nuisance he has
fostered, though his own acts and motives are entirely
praiseworthy.50 An industrial nuisance might begin innocently, but
once the defendant is apprised of its effect upon the plaintiff’s use
and enjoyment, it is intentional if the defendant continues the
harmful condition. In such cases, the fact that the defendant
exercises care or uses the best technology available does not relieve
him of responsibility for activity that unreasonably invades the
plaintiff’s rights to use and enjoy her land.51 Although the
industrial nuisance can be regarded as an intentional invasion, it
works as a soft version of strict liability because even
extraordinary care by the defendant does not defeat the claim. It
may be, however, that social utility of the defendant’s activity and
its economic value to the community will protect the defendant
from a damages award52 or an injunction.53
The invasion that affects the plaintiff’s use and enjoyment must
be unreasonable as well as substantial. “Unreasonable” in nuisance
law is not like “unreasonable” in the law of negligence, for it does
not refer to risk-creating conduct of the defendant but to the
reasonable expectations of a normal person occupying the
plaintiff’s land. Reasonable expectations must take into account
the fact that others, too, have the right to use their land. For this
reason, even an intentional invasion is not necessarily a nuisance.
The defendant may know that the noise of his church bells or the
smells of his baking bread invade the plaintiff’s land and are
offensive to the plaintiff, but the invasion would seldom be
unreasonable.54 Similarly, the fact that the defendant’s activity
diminishes the value of the plaintiff’s land does not necessarily
show that the defendant’s activity is a nuisance. In a neighborhood
of mansions, a small home may diminish the value of the large
homes nearby, but a small home is not in itself a nuisance. What is
unreasonable depends upon a number of considerations discussed
below.
Character of the neighborhood or social expectations. In the
absence of physical harm to the plaintiff’s land or person or
prohibited activity such as toxic dumping, courts almost always
consider, directly or indirectly, the character, custom, and culture
of the neighborhood or community in determining whether the
defendant’s legal activities cause unreasonable and substantial
harm and thus count as a nuisance.55 The obligatory
739
observation is that a nuisance may be the right thing in the

wrong place, like a pig in the parlor instead of the barnyard.56
Noise, odors, or sights that are consistent in nature and extent
with the neighborhood’s legitimate use patterns are seldom if ever
a nuisance, but the same invasions are likely to be nuisances if
they are out of character with the neighborhood.57 A factory in a
residential district may well be a nuisance, but a factory in the
factory district operating like others usually is not. In line with
this, the fact that the defendant is in compliance with a zoning
ordinance, although not ordinarily conclusive, is at least a relevant
factor in determining a nuisance.58 Environmental justice
advocates might argue that the emphasis on the neighborhood’s
character tends to distribute environmental burdens unfairly to
neighborhoods that are already carrying more than their fair share
of pollution.59 This may suggest that courts will need to work out
responsibility for cumulative pollution, but it is also true that a
defendant could be held liable under present rules if he causes
more harm than is reasonably expected in the neighborhood.
Magnitude, frequency, or duration exceeding neighborhood
norms. The defendant’s use of his land may be broadly consistent
with the uses to which the neighborhood is dedicated, yet because
of its magnitude, frequency, or duration, the use may be a
nuisance.60 For example, pigs are part of rural life, but an
excessive concentration of them in a small area with inadequate
drainage and ventilation may produce a stench that is unbearable
and unreasonable even in a farming community.61 The same is
true with the frequency of invasions; an occasional invasion may be
tolerated as reasonable and within neighborhood norms but
continuous, repeated, or frequent invasions may not be.62 An
understanding of the neighborhood character, customs, and values
suffices to determine whether the odor is a nuisance. Even if the
defendant’s activity has high social
740
utility and is well-intended, there are some invasions the

landowner should not be required to bear.63
Priority in time. Courts resolving nuisance disputes consider
priority in time as an important factor. The defendant who moves
hog production to an established residential neighborhood will
need mighty justifications to escape liability. In the reverse
situation, when a plaintiff moves her residence to a neighborhood
of nonresidential uses such as small factories, the nonresidential
uses are not often a nuisance.64 Prior use in that case has stamped
the neighborhood with its character, so that the residents must
reasonably expect the kind of factory operations that were present
when the residents chose to move in. A second reason for denying
relief to one who “came to the nuisance” is that the price the
plaintiff paid for the land reflects factory-neighborhood prices, not
upscale suburban prices. She has, in a sense, already been paid for
the inconvenience she may suffer because that inconvenience is
reflected in the reduced purchase price.
Limits on coming to the nuisance rules. Such conclusions are not
inevitable, however.65 First, the factory may substantially change
its operation to make it more detrimental, as where a factory
begins operating at night after the plaintiff moves to the
neighborhood. Second, the factory may accidentally discharge toxic
materials that cause personal injury distinct from any nuisance.
Liability in that case will turn on ordinary rules of negligence or
strict liability. Third, the first landowner to arrive upon the scene
should not be permitted to rule out all other uses, in effect
unilaterally zoning his neighbor’s land for the uses he has adopted
on his own. In a dynamic country, a certain amount of change must
be expected in many communities and neighborhoods. In one
famous case,66 suburban developments expanded outward until
they came close to a cattle feed lot that produced large amounts of
manure and attracted flies to the neighborhood. Although the feed
lot was there first, the growth of cities must be expected and
permitted, so the feed lot was a nuisance in spite of its priority.
Gravity of harm. Character of the neighborhood does not always
cast direct light upon the nuisance issue. When the nuisance is
invasive and seriously affects the land’s physical integrity, as
where toxic chemicals contaminate the groundwater, it may be a
nuisance as a matter of law, without regard to the neighborhood’s
character.67 In many instances, the gravity has been weighed by
legislators and administrators under federal or state
environmental laws. Statutes or regulations may thus establish
that the defendant’s chemical pollution is a nuisance or may create
a claim independent of common law nuisance. Courts may also
consider gravity of harm in determining whether the harms caused
by the defendant’s activity go beyond those sanctioned by
741
neighborhood usage, as in the case of excessive odors from a hog

farm in a rural area.68 Courts may well hinge a finding of nuisance
on the fact that the defendant’s activity creates a physical threat to
people on adjoining properties.69
Lack of utility of defendant’s activity. If the defendant’s activity
is conducted at an inappropriate location70 or causes harm that is
reasonably avoidable,71 it can count as a nuisance regardless of its
social utility. Even when the defendant’s land use is properly
conducted and at a proper location, however, the fact that it has
little or no social utility compared to the harm it causes classes the
activity as a nuisance.72 That is the case of malicious nuisances
such as “spite fences” erected solely to obstruct the plaintiff’s
view.73
Discounting the utility of defendant’s activity. The more-debated
question deals with the converse situation, when the defendant’s
socially useful activity causes harm that cannot be eliminated by
reasonable care. Should the utility or social value of the activity
relieve the defendant of liability? When the harm is severe, the
Restatement says not.74 An important body of opinion supports
that view.75 To find a nuisance even when the social utility of the
activity outweighs the harm, courts must first find that the activity
would count as a nuisance if its utility is disregarded.76 The
Restatement and some cases imply that the defendant must be
able to capture enough of the activity’s utility (in profits) to pay
damages without going out of business,77 but even if the
defendant’s activity is a charity or conducted in the public interest
and not for profit, its social utility will not necessarily be enough to
justify the harm it causes.78 The remedy of injunction is a different
matter, however; while the useful nuisance may subject the
defendant to damages, courts may require payment of damages
and allow it to continue.79
Counting social utility. In spite of what has just been said, the
social utility of the defendant’s activity is important at least in the
sense that if the activity is useful to the community or to society,
the plaintiff might reasonably expect to put up with more
annoyance.80 Consequently, courts as well as the Restatement do
attempt to consider the
742
usefulness of the defendant’s activity.81 But the weighing of

social utilities does not mean that a plaintiff with a low-value
residence will always lose her claim against a defendant whose
factory has great economic importance. On the contrary, the high
value of the defendant’s operation may suggest that the factory
should pay damages or buy the plaintiff’s property. Beyond this, it
is now apparent that the cost of cleaning up toxic wastes produced
by some industries is astronomical; so high, in fact, that courts
may well be uncertain that a given industry’s social value exceeds
the harm it causes.
The Restatement speaks of private nuisances as “invasions.”82
Courts often speak of nuisances as “interferences.”83 Most private
nuisances in fact involve invasion of the plaintiff’s land by matter,
sound, or light. For example, a light shone upon the plaintiff’s
property is an invasion that may count as a nuisance.84 A plume of
contamination deep under the plaintiff’s land is an invasion, and if
permanent and serious enough, can count as a nuisance, even
though the landowner cannot directly perceive it and is harmed
only because the value of her land is reduced by its presence.85 In
some cases, however, the plaintiff’s discomfort arises because light
or air is blocked by the defendant’s structures, or because the
defendant’s activities are aesthetically repugnant, or because they
generate fear of future harm without any invasion at all. Plaintiffs
have fared less well in such cases unless the defendant acts with
“malice.”
Blocking light, air, view, or other amenities. When the
defendant erects a useful structure on his own land, the plaintiff
will seldom be able to show a nuisance merely because her view or
air is blocked.86 However, when the defendant’s structure
interferes with the plaintiff’s view, light, or air for no purpose
useful either to others or to the defendant himself, many courts
have been willing to find a nuisance.87 Similarly, the defendant
who intentionally scares game or uses his own land to fence game
off the plaintiff’s hunting lands may be subjected to liability.88
Aesthetic nuisances. The unsightliness of the defendant’s
property may be considered in balancing the rights of the parties.89
But because tastes differ and criteria for aesthetic judgment are
deemed unreliable, courts have been reluctant to say that an
inappropriate and ugly sight can be a nuisance.90 So when the one
neighbor mounted a
743
toilet “seat and its lid on a piece of plywood placed atop a post
overlooking his neighbors’ land” with a brown spot alleged by the
plaintiff to represent human excrement, the victim of this
continuing visual assault had no right to abate the nuisance.91
Vagaries of taste do indeed make it difficult to pass judgment upon
outdoor sculptures and architectural disasters, but neighborhood
character may permit a court to say with confidence that a front
yard full of junked autos92 or a mortuary93 can constitute a
nuisance where it is wholly inconsistent with the neighborhood’s
character, even though its impact derives solely from visual
perception and distaste.
Recovery for nuisances creating anticipated harm without
invasion. Many activities outside the land that threaten future
harm are non-invasive.94 Some cases have been willing to impose
liability, as when the defendant’s building threatens to harm the
plaintiff’s nearby building through increased snow-load,95 when
the defendant’s stored explosives create a reasonable fear and
depreciate the value of the plaintiff’s property,96 when toxic
materials contaminate a general area or nearby land,97 and when a
halfway house in a residential neighborhood presents a serious
danger that convicted felons on early release will cause harm.98
When a degree of invasion can be found, the plaintiff may be able
to recover parasitically for the accompanying fear, as where the
noise of automatic weapon fire next door is itself invasive and also
creates anticipation of harm.99 In addition, contamination of the
defendant’s land may count as a public nuisance that can be abated
by public action even though none of the hazardous materials have
escaped.100
Denying recovery for anticipated harm without invasion. But
many recent cases have denied recovery for conditions that
diminish the plaintiff’s property value but do not physically invade
or physically harm the property. It should go without saying that if
the defendant’s waste is not the cause of the contamination
complained of, the plaintiff’s loss in property value is not the
defendant’s responsibility,101 but a number of decisions have gone
far beyond this by refusing to treat fear-creating activities as a
nuisance in the absence of an actual invasion upon the land or
physical harm to it. Some have done so even when the activity
actually causes depreciation in the plaintiff’s land value, so-called
stigma damages.102 Some other opinions, mostly in toxic pollution
cases, have asserted broadly that a nuisance exists only when
there is an invasion that is
744
harmful to the land or its occupants, or at least is perceptible to

one on the land.103 Variations on the theme assert that fear of
future harm cannot count as a nuisance104 and that no nuisance
can exist when the land is wholly unmarketable because of
adjacent deadly contamination, so long as the plaintiff can actually
use the land.105 Ironically, courts may impose upon the victimized
homeowner a duty to reveal the pollution or danger when she
attempts to sell to another,106 thus guaranteeing that the
homeowner will realize the loss in market value.
Definitions. A public nuisance, as distinct from a private
nuisance, is a substantial and unreasonable interference with a
right held in common by the general public, in use of public
facilities, in health, safety, and convenience.107 A wide range of
specific activities has been declared to be a public nuisance by
criminal statutes. However, in certain cases it may be a matter of
statutory interpretation whether the legislature meant not only to
prohibit a particular activity but also to provide for a public
nuisance action against it.108 To count as a public nuisance, the
condition for which the defendant is responsible109 must in some
way invade a public right. If citizens have a right to store firearms
in their homes, for example, then such storage does not invade a
public right.110
Public-entity suits. A public nuisance may be abated or enjoined
by public authorities, even if it is not specifically declared to be a
nuisance or a crime by statute.111 Public as well as private
nuisance theories may supplement environmental statutes as a
tool for dealing with hazardous wastes and other environmental
contaminations.112 Much of public nuisance law arises in the
context of public litigation or in suits about public regulatory
activity and its limits.113 Conditions created by a tortfeasor may
require public entities to expend monies for added police, fire,
health, or other public services. Although a public entity may be
entitled to abate a nuisance and to recover the
745
cost of abatement as damages, some courts have not allowed

recovery of increased costs of typical public services resulting from
the nuisance.114 Some public nuisance litigation raises issues of
manufacturers’ liability for the societal costs of their products. For
instance, in one case a number of counties sued manufacturers of
over-the-counter cold medications containing pseudophedrine for
the counties’ costs in dealing with the effects of the
methamphetamine epidemic; the court denied the public nuisance
claim in light of proximate cause considerations.115
Private suits; public nuisance causing special harm or private
nuisance. In the absence of a statute allowing citizens to enforce
the public’s rights, those rights are normally enforced only by
public authorities. The “private attorney general,” welcomed in
consumer fraud claims or civil rights litigation, is given little place
in protecting public environmental rights. However, a private tort
action is available to redress private harm resulting from a public
nuisance if (1) the public nuisance is also a private nuisance to the
plaintiff because it substantially and unreasonably diminishes her
use and enjoyment of her land,116 or (2) the nuisance is a public
nuisance that causes special harm to the plaintiff in the exercise of
the public right, and that harm differs in kind from the harm
caused to other members of the public generally.117
Street obstructions. Traditional examples of a public nuisance
involve obstruction of public streets or ways. While the mere
presence of an obstruction might be a public nuisance, the fact that
the inconvenienced plaintiff used the street more than other people
would not give her standing to sue. Her inconvenience might be
greater than that suffered by people generally, but it would be of
the same general kind. The abortion protester who is dampened by
a sprinkler that sprays partly on the public sidewalk thus has no
claim based upon public nuisance.118 Even the retail business
owner may be denied relief when the collapse of a building blocks
the access of customers in a wide area, since many members of the
community will suffer losses similar in kind.119
Travelers and abutting owners. In fact, the street-obstruction
cases are ordinarily maintained only by abutting owners whose
property is denied access to or from the public way.120 Although
courts have sometimes talked of public nuisance in these cases, the
relevant right seems to be the plaintiff’s own right of access as a
property owner, not the public right.121 If access is made
substantially more burdensome, the blockage need not
746
occur at the property line.122 However, when a remote street is

blocked so that the property owner’s access is merely
inconvenienced, her claim cannot rest upon her property right but
must instead be founded on a public nuisance. Yet as a public
nuisance claim it must fail if she suffers mere inconvenience in
travel, since that is a harm shared by other members of the public
when a street is blocked. Remote obstructions are therefore not
likely to be actionable.123
Public waters. The same rules apply to public waters. An
interference with public waters, if substantial enough, will count as
a public nuisance. For example, if the defendant contaminates
public waters by chemical spills or the continuous discharge of
noxious effluent, he may have created a public nuisance (and may
have violated environmental statutes as well). Those who suffer
“special harm” different in kind from that suffered by the public
generally can recover for the harms suffered in their exercise of the
public right. This includes direct users such as those engaged in
commercial fishing,124 but does not include pleasure-users who
suffer harm in common with the public generally or even owners of
nearby businesses who suffer economic loss when pollution of the
waters reduces tourism.125
Personal injury. When a land occupant or her family suffers
personal injury such as illness from a private nuisance, recoverable
damages may include an award for that personal injury. Public
nuisances causing personal injury are different. First, legislatures
can declare almost any low-grade crime to be a nuisance, and the
court holding that violation of such a statute is actionable may
adopt the statutory term and declare that the defendant is liable
for a nuisance.126 Second, a public nuisance is actionable under the
common law only if the plaintiff’s enjoyment of a public right is
diminished and her injury differs in kind from injury to the general
public.127 Thus, the defendant who substantially pollutes the air or
public waters commits a public nuisance, and is liable if a few
people suffer personal injury as a result,128 but if the defendant’s
pollution causes respiratory problems for everyone in town, the
plaintiff’s respiratory harm does not differ in kind from that
suffered by others and she cannot recover on a public nuisance
theory.129 Third, talk of public nuisance in personal injury cases
can be confusing when the plaintiff claims damages rather than
abatement. If the defendant should be liable for the injury, it is
because he has intentionally caused personal injury,
747
carried on an abnormally dangerous activity, violated a statute

aimed at protecting the plaintiff, or was negligent. To label the
case as one of nuisance adds nothing to the clarity of decision-
making or policy. Plaintiffs usually assert a public nuisance
causing personal injury for strategic reasons, for example, to avoid
the effect of their own contributory fault. But as Cardozo said in
the leading case, “whenever a nuisance has its origin in negligence,
one may not avert the consequence of his own contributory fault by
affixing … the label of a nuisance.”130 In personal injury cases, the
law would be clarified by dropping the public nuisance label and by
directly considering the rules and policies of negligence and strict
liability.131
§ 30.7 Remedies
The remedies potentially available for a private nuisance (or a
public nuisance with special harm to the private plaintiff) are (1)
compensatory damages, (2) punitive damages in egregious cases,
and (3) injunctions abating or modifying the nuisance and (rarely)
(4) a “compensated injunction” that abates the nuisance but
requires the plaintiff to pay the costs of that abatement. Some of
the confusion about nuisance arises when the liability question (is
there a nuisance?) is confused with the remedy question (what
remedy should be permitted?). The choice among remedies has a
good deal of impact, however, and has generated a good deal of
analysis.
Injunctive relief: abatement and modification. On the ground
that the damages remedy is inadequate to protect property rights,
courts often issue injunctions compelling the defendant to abate
private or public nuisances.132 Injunctions may be tailored
narrowly to fit the nuisance. If a factory operation is a nuisance
because of noise, it may be that an injunction closing the factory is
unnecessary and that the nuisance can be remedied by an
injunction that bars or limits the noise. Such an approach would
properly match the remedy to the wrong.
Denying injunctions. Courts may also limit or even refuse
injunctions in private nuisance cases, for a number of reasons. The
main one is that if the defendant is carrying on an activity that is
socially useful or economically important, then the injunction
closing the defendant’s operation may do more harm than good.
Unavoidable industrial nuisances, for example, may have great
value to the public because of the products that result or the jobs
they foster. Courts may weigh the good against the harm and
conclude that the injunction should be refused but that the
defendant must nevertheless pay the plaintiff’s damages. In a
leading modern case, Boomer v. Atlantic Cement Co.,133 the
defendant was a cement plant that constantly produced high levels
of cement dust that clogged the homes of neighboring residents.
The operation was a nuisance as the courts found, but the
defendant employed 300 persons and had invested $45 million in
the plant. The total damage to the neighbors was $185,000. The
court concluded that the injunction should be denied if the
defendant paid the damages, bringing New York law
748
into line with the practice in a number of other states.134 A

court may also be reluctant to enjoin an anticipated nuisance if
there is evidence that if care is used, the defendant’s conduct or
facility might not constitute a nuisance.135 Nor will an injunction
issue if the nuisance has abated at the time of trial.136
Limiting the injunction to avoid closing a useful business. To
deny the injunction is to permit the defendant to take rights in the
plaintiff’s property at a valuation determined by judges or juries.
Even if their valuation is an accurate estimate of the market, it
may not represent the price at which the plaintiff would
voluntarily sell the property right. The effect is to give the
defendant a power much like the power of eminent domain. So
denial of injunction is a serious matter. For this reason, the
injunction is definitely granted when the defendant harms the
plaintiff willfully or when he could reasonably avoid doing so.137
Courts may find a middle ground by ordering the defendant to
minimize or eliminate the nuisance without closing down
operations,138 for example, by reducing the amount of dynamite in
any one quarry explosion,139 or reducing nighttime activities.140
Courts can also order the defendant to experiment with alternative
processes or procedures as potential means of minimizing the
harm.141
The compensated injunction. One other way of avoiding an
injunction that closes the defendant’s business but still manages
some relief for the plaintiff is most unusual. The compensated
injunction is illustrated in a famous Arizona case where suburban
development gradually pushed so close to a massive feed lot that
life quickly became intolerable to the residents. The developer was
granted an injunction forcing the feed lot to move further away
from inhabited areas, but only on condition that the costs of the
move were borne by the developer.142
Damages: permanent nuisance and diminished market value.
Because damages are intended to compensate the plaintiff for
actual harm done, the award may be measured in different ways
according to the evidence.143 If the harm done by the nuisance will
not terminate or be abated, then the nuisance is said to be
permanent. In that case, one traditional measure of damages
awards the plaintiff the diminished market value of her
749
land.144 That might be the case if the land is irremediably

contaminated for an indefinite time, for example.145
Temporary nuisance and loss of rental value or cost of restoring
land. On the other hand, if the harm is temporary, the parallel
measure of damages would be an award for loss of use, usually
based upon the reduction of rental value of the land while the
nuisance lasts.146 With some nuisances, the harm is abated when
the defendant’s activity is abated. That is true, for example, if the
nuisance is noise inflicted upon the plaintiff. When the noise stops,
the plaintiff has nothing to repair. But if the nuisance is a toxic
contamination of groundwater or land, the harm does not
terminate when the defendant stops dumping toxins. In cases like
that, the plaintiff is entitled to have her land restored if that is
feasible, and if the defendant does not restore it, the plaintiff is
entitled to the cost of doing so in addition to her recovery for
diminished rental value for the period until the cleanup is
completed.147
Personal illness or annoyance. Courts have allowed land
occupants in nuisance cases to recover damages for loss of quality
of life, including physical illness, discomfort, and annoyance.148
But care should be exercised not to overlap awards if the plaintiff
claims diminished value based on conditions that cause discomfort,
along with discomfort as a separate item of damages.149
To enjoin or not to enjoin: efficiency and externalizing. A great
deal of analysis, far more than can be summarized here, has gone
into the question of whether courts should always, never, or
sometimes enjoin socially useful nuisances.150 One reason not to
weigh social utilities is that accurate weighing may be unlikely or
at least expensive. The interest in efficiency may suggest to some
that if more value can be generated by keeping the nuisance and
paying the damages, the injunction should be denied, but it may be
that this should be accomplished by routinely denying the
injunction rather than by weighing utilities. On the other hand, if
we are sure that the cost of, say, running a rocket laboratory is the
disposal of toxic wastes it generates, the rocket facility should not
be able to dump the fuel where it will cause harm to others; in
doing so, it would be externalizing its costs, forcing others to bear
costs of its business.151
750
Strategic behavior. One approach might be to leave the whole

matter to party bargaining. If nuisances are not enjoined, the
defendant is permitted to buy rights to interfere with the plaintiff’s
land at a price fixed by courts but not one agreed to by the plaintiff.
People who do not commit nuisances are not permitted to take
rights in the plaintiff’s land except by paying a price the plaintiff
will accept, so it is somewhat anomalous that the defendant who
commits a nuisance can in effect compel a sale. Yet if nuisances are
enjoined, the community may lose enormously, or alternatively the
plaintiff may be able to sell the injunction back to the defendant
(by agreeing not to enforce it) at an extortionate price that is far in
excess of the plaintiff’s loss and the plaintiff’s own subjective
valuation. Extortionate behavior is possible on either side.
Damages measured to provide appropriate incentives. If an
injunction is denied and damages are awarded for diminished
value of the plaintiff’s property, then the defendant will, in effect,
have purchased an easement to commit the nuisance forever. In a
world of changing technology, some of which might in the future
allow the defendant to operate without causing harm to others, it
may be unwise to remove the incentive to invest in technology. A
better measure of damages in some cases would be the temporary
measure (lost rental value), which would allow the plaintiff to sue
periodically as long as the nuisance continues. Given accurate
damages measures, however, a refusal to enjoin a nuisance like the
cement dust may often turn out well even under the permanent or
diminished market value measure. If the defendant pays the true
loss in value of the plaintiffs’ homes, the plaintiffs will be able to
sell them to purchasers who, because of the cheaper price, are
willing to put up with the nuisance. Alternatively, if the plaintiffs
prefer to remain neighbors of the cement plant, they are evidently
satisfied with less comfort and more cash. This optimistic view,
however, will work only if the court can be confident that its
estimate of damages is accurate.
________________________________
1 E.g., Arden H. Rathkopf, Daren Rathkopf & Edward H. Ziegler,
Jr., Rathkopf’s Law of Zoning and Planning (5 vol. 1995 & Supps.)
(available on Westlaw).
2 See Tarbell Administrator, Inc. v. City of Concord, 157 N.H. 679,
956 A.2d 322 (2008).
3 E.g., State of New York v. Shore Realty Corp., 759 F.2d 1032 (2d
Cir. 1985) (CERCLA and nuisance); Freeman v. Grain Processing Corp.,
848 N.W.2d 58 (Iowa 2014) (Clean Air Act and nuisance).
P.2d 669, 55 Cal.Rptr.2d 724 (1996).
6 See § 30.2.
7 Absolute nuisance means any interference for which courts would
impose liability without regard either to the defendant’s fault or to the
gravity and unreasonableness of the harm done. Under contemporary
rules recognizing negligent, intentional, and strict liability nuisances, the
term can be dropped. A nuisance per se is an activity or condition that is a
nuisance in itself and not permissible under any circumstances. This
category mainly, or perhaps, solely consists of uses prohibited by statute or
regulation, e.g., Tiegs v. Watts, 135 Wash.2d 1, 954 P.2d 877 (1998), but
some courts use the term much more broadly. A lawful business, by
definition, is not a nuisance per se. A nuisance in fact or per accidens is the
ordinary private nuisance, an activity or condition that is out of place or is
a nuisance because of the particular way it is carried on. Sowers v. Forest
Hills Subdivision, 294 P.3d 427 (Nev. 2013) (defining the terminology and
holding that a wind turbine in a residential area is a nuisance in fact); see
§ 30.4.
8 See Copart Indus., Inc. v. Consolidated Edison Co. of New York,
Inc., 41 N.Y.2d 564, 362 N.E.2d 968, 394 N.Y.S.2d 169 (1977) (discussing
the phenomenon).
9 See Louise A. Halper, Untangling The Nuisance Knot, 26 B.C.
Envtl. Aff. L. Rev. 89 (1998).
10 E.g., Fletcher v. City of Independence, 708 S.W.2d 158 (Mo. App.
1986) (sewer backup); Bible Baptist Church v. City of Cleburne, 848
S.W.2d 826 (Tex. App. 1993) (same).
11 See Aviation Cadet Museum v. Hammer, 373 Ark. 202, 283
S.W.3d 198 (2008) (overflights held to be a nuisance when the flights were
at such a low altitude that they posed a physical threat to people on the
neighbor’s property); Atkinson v. Bernard, Inc., 223 Or. 624, 355 P.2d 229
(1960).
12 E.g., Cal. Penal Code § 11225.
13 See § 30.6.
14 See Graber v. City of Peoria, 156 Ariz. 553, 753 P.2d 1209 (Ct.
App. 1988).
15 E.g., Rodrigue v. Copeland, 475 So.2d 1071 (La. 1985) (Christmas
display drawing heavy traffic). A condition of purely natural origin cannot
be a nuisance, under the traditional common-law rule. Belhumeur v. Zilm,
157 N.H. 233, 949 A.2d 162 (2008) (wild bees in tree; citing numerous
cases from other states).
16 E.g., Bowers v. Westvaco Corp., 244 Va. 139, 419 S.E.2d 661
(1992) (continual loading and moving of trucks a few feet from the
plaintiff’s house).
17 E.g., a lessee, Nichols v. Mid-Continent Pipe Line Co., 933 P.2d
272 (Okla. 1996); but not a mortgagee, Stevensen v. Goodson, 924 P.2d 339
(Utah 1996).
18 Restatement Second of Torts § 821D (1979).
19 Usually put in short form: the interference must be substantial
and unreasonable. E.g., San Diego Gas & Elec. Co. v. Superior Court, 13
Cal.4th 893, 920 P.2d 669, 55 Cal.Rptr.2d 724 (1996); Sowers v. Forest
Hills Subdivision, 294 P.3d 427 (Nev. 2013). Nuisance does not, however,
require unreasonable actions by the defendant, only that the plaintiff
cannot reasonably be expected to bear the harm.
20 See § 30.4.
21 Simpson v. Kollasch, 749 N.W.2d 671 (Iowa 2008) (employing a
“normal person” standard for whether a nuisance involving personal
discomfort or annoyance is significant enough to constitute nuisance);
Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5
A.L.R.2d 690 (1948) (lights from race track interfered with drive-in movie
by casting glow on the screen, but outdoor movie represented an
abnormally sensitive use, thus no recovery).
22 Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312,
257 N.E.2d 870, 40 A.L.R.3d 590 (1970) (cement dust, remedy limited to
damages, however); Smith v. Wallowa County, 145 Or.App. 341, 929 P.2d
1100 (1996) (smoke, dust, odors).
23 Penland v. Redwood Sanitary Sewer Serv. Dist., 156 Or.App. 311,
965 P.2d 433 (1998).
24 Scribner v. Summers, 84 F.3d 554 (2d Cir. 1996) (barium); Mel
Foster Co. Properties, Inc. v. American Oil Co., 427 N.W.2d 171 (Iowa
1988) (gasoline); Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 763
N.E.2d 1053 (2002) (untreated chemical waste).
25 E.g., Rose v. Chaikin, 187 N.J.Super. 210, 453 A.2d 1378, 36
A.L.R.4th 1148 (1982); Mandel v. Geloso, 206 A.D.2d 699, 614 N.Y.S.2d
645 (1994).
26 Rodrigue v. Copeland, 475 So.2d 1071 (La. 1985).
27 Green v. Spinning, 48 S.W.2d 51 (Mo. App. 1932).
P.2d 669, 55 Cal.Rptr.2d 724 (1996) (common law claim could not be
pursued because of regulation of administrative agency).
29 Vogel v. Grant-Lafayette Elec. Co-op., 201 Wis.2d 416, 548 N.W.2d
829 (1996).
30 See Kuper v. Lincoln-Union Elec. Co., 557 N.W.2d 748 (S.D. 1996)
(stray voltage of a public utility is not a nuisance in the absence of
negligence).
31 See §§ 5.1 & 5.8.
32 Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377 (Colo. 2001);
Adams v. Cleveland-Cliffs Iron Co., 237 Mich. App. 51, 602 N.W.2d 215
(1999).
33 Bradley v. American Smelting & Refining Co., 104 Wash.2d 677,
709 P.2d 782 (1985). Other courts have refused to find a trespass “[w]hen
particles enter the ambient environment without any demonstrated
impact on the land.” Larkin v. Marceau, 184 Vt. 207, 959 A.2d 551 (2008)
(pesticides sprayed in orchard).
34 See Borland v. Sanders Lead Co., Inc., 369 So.2d 523, 2 A.L.R.4th
1042 (Ala. 1979) (invasion of possessory interest is not determined by size
of particles, but actual damages must be proven if the trespass is with
microscopic particles); Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d
790 (1959) (treating microscopic particles as trespass but excluding
liability when the harm is de minimis); Bradley v. American Smelting &
Refining Co., 104 Wash.2d 677, 709 P.2d 782 (1985) (requiring “actual and
substantial” damages); but see Stevenson v. E.I. DuPont de Nemours &
Co., 327 F.3d 400 (5th Cir. 2003) (under Texas law, the deposit of airborne
particulates from the defendant’s plant would constitute a trespass to land
and the plaintiff would not be required to prove substantial damages).
35 See Restatement Second of Torts § 821D, cmt. e (1979). But that
only means that in some cases courts will allow the plaintiff to have the
advantage of the more favorable rules, usually the rules of the trespass
regime. The problem of tree branches overhanging the plaintiff’s land is a
good example. If treated as a trespass, the plaintiff could sue for trivial
and even desirable intrusions of foliage or roots. If treated as a problem in
nuisance law, the plaintiff would be limited to self-help remedies unless
the incursions substantially reduced reasonable use and enjoyment of the
plaintiff’s land. See §§ 5.6 & 5.7; Fancher v. Fagella, 274 Va. 549, 650
S.E.2d 519 (2007).
37 See Hocking v. City of Dodgeville, 768 N.W.2d 552 (Wisc. 2009)
(analyzing nuisance suit under state’s ordinary negligence factors);
Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 277 Wis.2d 635,
648, 691 N.W.2d 658, 665 (2005) (“when a nuisance is predicated on
negligence, all the usual rules and defenses applicable to negligence claims
apply”).
38 See Copart Indus., Inc. v. Consolidated Edison Co. of New York,
Inc., 41 N.Y.2d 564, 362 N.E.2d 968, 394 N.Y.S.2d 169 (1977); Vogel v.
Grant-Lafayette Elec. Coop., 201 Wis.2d 416, 548 N.W.2d 829 (1996);
Restatement Second of Torts § 840B(1) (1979). Coming to the nuisance,
though not usually a matter of contributory fault, may defeat the plaintiff
for other reasons. See § 30.4.
39 Simpson v. Kollasch, 749 N.W.2d 671 (Iowa 2008).
40 See § 22.7.
41 City of Atlanta v. Kleber, 285 Ga. 413, 677 S.E.2d 134 (2009);
Tucci v. District of Columbia, 956 A.2d 684 (D.C. 2008); Milwaukee Metro.
Sewerage Dist. v. City of Milwaukee, 277 Wis.2d 635, 691 N.W.2d 658
(2005).
42 Tarbell Administrator, Inc. v. City of Concord, 157 N.H. 679, 956
A.2d 322 (2008).
43 See § 29.9 (reflecting limitations on emotional harm recoveries).
44 New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985);
Nassr v. Commonwealth, 394 Mass. 767, 477 N.E.2d 987 (1985);
45 Restatement Second of Torts § 822 (1979). As to strict liability for
abnormal danger, see § 32.6.
46 E.g., Wright v. Masonite Corp., 368 F.2d 661 (4th Cir. 1966);
Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954); see William K.
Jones, Strict Liability for Hazardous Enterprise, 92 Colum. L. Rev. 1705,
1737 (1992).
47 See Robert E. Keeton, Restating Strict Liability and Nuisance, 48
Vand. L. Rev. 595 (1995).
48 Washington Suburban Sanitary Comm’n v. CAE-Link Corp., 330
Md. 115, 622 A.2d 745 (1993).
49 Copart Indus., Inc. v. Consolidated Edison Co. of New York, Inc.,
41 N.Y.2d 564, 362 N.E.2d 968, 394 N.Y.S.2d 169 (1977); Jost v. Dairyland
Power Coop., 45 Wis.2d 164, 172 N.W.2d 647 (1970); Restatement Second
of Torts § 825 (1979).
50 Armory Park Neighborhood Ass’n v. Episcopal Community
Services in Arizona, 148 Ariz. 1, 712 P.2d 914 (1985).
51 Parker v. Barefoot, 519 S.E.2d 315 (N.C. 1999).
52 See § 30.4.
53 See § 30.7.
54 See Langan v. Bellinger, 203 A.D.2d 857, 611 N.Y.S.2d 59 (1994)
(church bells liked by some neighbors were not a nuisance).
55 See, e.g., Weinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996) (location
a major factor); Clinic & Hospital v. McConnell, 241 Mo.App. 223, 236
S.W.2d 384 (1951) (noise exceeding level of neighborhood); Robie v. Lillis,
112 N.H. 492, 299 A.2d 155 (1972) (incompatible with the surrounding
neighborhood). In many instances, the character of the neighborhood or
locality is a way of summarizing the kinds of reciprocal harms that are
acceptable; so long as neighbors impose similar harms upon each other,
there is no nuisance. See Bamford v. Turnely, 3 B & S 66, 122 Eng.Rep. 25
(Exch. Ch. 1862) (Judgment of Bramwell, B.).
56 Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47
S.Ct. 114, 118, 71 L.Ed. 303, 54 A.L.R. 1016 (1926).
57 E.g., Sowers v. Forest Hills Subdivision, 294 P.3d 427 (Nev. 2013)
(proposed wind turbine in a residential area would be a nuisance in fact
because of noise, shadow flicker and aesthetic impact; these problems far
outweigh any potential utility of the turbine); Burch v. Nedpower Mount
Storm, LLC, 220 W.Va. 443, 647 S.E.2d 879 (2007) (wind-power electric
generating facility a nuisance because of proximity to residential district,
given its “unusual and recurring noise”).
58 E.g., Prah v. Maretti, 108 Wis.2d 223, 321 N.W.2d 182 (1982);
Trickett v. Ochs, 176 Vt. 89, 838 A.2d 66 (2003). A California statute
requires a finding of unreasonable operation before an industry can be
found a nuisance while operating in an expressly permitted zone. Cal.
Code Civ. Proc. § 731a. Federal preemption may in effect immunize
activities that are in compliance with federal law. See Rushing v. Kansas
City Southern Ry. Co., 185 F.3d 496 (5th Cir. 1999) (no nuisance liability
for railroad noise levels that do not violate federal standards), superseded
by statute on other grounds, Mathis v. Exxon Corp., 302 F.3d 448 (5th Cir.
2002).
59 See Kathy Seward Northern, Battery and Beyond: A Tort Law
Response to Environmental Racism, 21 Wm. & Mary Envtl. L. & Pol’y Rev.
485 (1997).
60 Clinic & Hospital v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384
(1951) (“alleged music” on loudspeaker in business district); Trickett v.
Ochs, 176 Vt. 89, 838 A.2d 66 (2003).
61 Weinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996). Right to farm
laws may jeopardize this example as well as the environment generally.
See Neil D. Hamilton, Right-to-Farm Laws Reconsidered: Ten Reasons
Why Legislative Efforts to Resolve Agricultural Nuisances May Be
Ineffective, 3 Drake J. Agric. L. 103 (1998).
62 See, e.g., Rose v. Chaikin, 187 N.J.Super. 210, 453 A.2d 1378, 36
A.L.R.4th 1148 (1982) (constant noise of windmill in quiet residential
neighborhood); Penland v. Redwood Sanitary Sewer Serv. Dist., 156
Or.App. 311, 965 P.2d 433 (1998).
63 Jost v. Dairyland Power Cooperative, 45 Wis.2d 164, 172 N.W.2d
647 (1970); see Robert E. Keeton, Restating Strict Liability and Nuisance,
48 Vand. L. Rev. 595 (1995); Restatement Second of Torts § 826(b) (1979)
(if the harm is serious and compensation is feasible).
64 See Erbrich Products Co., Inc. v. Wills, 509 N.E.2d 850 (Ind. App.
1987) (statutory version of coming-to-nuisance rule).
65 Mark v. State ex rel. Dep’t of Fish and Wildlife, 191 Or. App. 563,
84 P.3d 155 (2004) (coming to the nuisance did not apply to purchasers of
property adjacent to nude beach where they lacked constructive knowledge
of land use).
66 Spur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz.
178, 494 P.2d 700, 53 A.L.R.3d 861 (1972). Cf. LeRoy Fibre Co. v. Chicago,
Milwaukee & St. Paul Ry. Co., 232 U.S. 340, 34 S.Ct. 415, 58 L.Ed. 631
(1914) (railroad was present first, but that did not immunize it from
liability to adjacent landowner who stored inflammable flax on his own
property near the track).
67 E.g., New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir.
1985).
68 Weinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996).
69 See, e.g., Aviation Cadet Museum v. Hammer, 373 Ark. 202, 283
S.W.3d 198 (2008) (private airport operated so that low-flying planes posed
a risk of serious accidents to people on neighboring properties).
71 Highview North Apartments v. County of Ramsey, 323 N.W.2d 65
(Minn. 1982) (socially useful sewer system could have been placed to avoid
sewage backup harming the plaintiff); Restatement Second of Torts §§ 828
& 830 (1979).
72 See Restatement Second of Torts § 829A (1979).
73 See Tarlton v. Kaufman, 348 Mont. 178, 199 P.3d 263 (2008);
Welsh v. Todd, 260 N.C. 527, 133 S.E.2d 171 (1963). In some states, spite
fences are proscribed by statute. Alberino v. Balch, 969 A.2d 61 (Vt. 2008).
74 Restatement Second of Torts § 829A (as read with § 826).
75 See Jost v. Dairyland Power Cooperative, 45 Wis.2d 164, 172
N.W.2d 647 (1970); Bamford v. Turnley, 3 B & S 66, 122 Eng.Rep. 25
(Exch. Ch. 1862) (Judgment of Bramwell, B.); Restatement Second of Torts
§§ 826 (b) & 829 (1979).
76 Thus, courts have found no nuisance at all when an industry
without negligence accidentally emits a noxious gas on a single occasion
and the gas is not abnormally dangerous. See § 30.3.
77 Restatement Second of Torts § 826(b) (1979).
78 See Armory Park Neighborhood Ass’n v. Episcopal Community
Services in Arizona, 148 Ariz. 1, 712 P.2d 914 (1985) (church organization
provided free meals to indigents, whose misbehavior became a nuisance to
residents); Rose v. Chaikin, 187 N.J.Super. 210, 453 A.2d 1378, 36
A.L.R.4th 1148 (1982) (windmill).
79 See § 30.7.
80 See Fleming James, Jr., Memorandum: The Element of Fault in
Private Nuisance, Appendix, Restatement Second of Torts Tentative Draft
No. 16 at 132, 140–141 (1970).
81 See Monks v. City of Rancho Palos Verdes, 167 Cal.App.4th 263,
84 Cal.Rptr.3d 75 (2008) (“The primary test for determining whether the
invasion is unreasonable is whether the gravity of harm outweighs the
social utility of the defendant’s conduct.”); Carpenter v. Doubler Cattle Co.,
Inc., 108 Idaho 602, 701 P.2d 222 (1985); Lakey v. Puget Sound Energy,
Inc., 176 Wash.2d 909, 296 P.3d 860 (2013).
83 E.g., Robie v. Lillis, 112 N.H. 492, 299 A.2d 155 (1972).
84 Green v. Spinning, 48 S.W.2d 51(Mo. App. 1932); Firth v.
Scherzberg, 366 Pa. 443, 77 A.2d 443 (1951) (noise and lights at night); cf.
Golen v. Union Corp., U.C.O.-M.B.A., Inc., 718 A.2d 298 (Pa. Super. 1998)
(light not invasive but could be a nuisance because it could be seen by a
person on the land).
85 Bradley v. Armstrong Rubber Co., 130 F.3d 168 (5th Cir. 1997).
86 Tarlton v. Kaufman, 348 Mont. 178, 199 P.3d 263 (2008) (fence);
see also Thomas R. Trenkner, Annotation, Zoning Regulations Prohibiting
or Limiting Fences, Hedges, or Walls, 1 A.L.R.4th 373 (1981).
87 Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785 (1973)
(listing many authorities); Welsh v. Todd, 260 N.C. 527, 133 S.E.2d 171
(1963).
88 See Suprise v. Dekock, 84 S.W.3d 378 (Tex. App. 2002).
89 Robie v. Lillis, 112 N.H. 492, 299 A.2d 155 (1972).
90 Tarlton v. Kaufman, 348 Mont. 178, 199 P.3d 263 (2008) (allegedly
unsightly fence); see Raymond Robert Coletta, The Case for Aesthetic
Nuisance: Rethinking Traditional Judicial Attitudes, 48 Ohio St. L.J. 141
(1987).
91 Wernke v. Halas, 600 N.E.2d 117 (Ind. App. 1992).
92 Foley v. Harris, 223 Va. 20, 286 S.E.2d 186 (1982).
93 Mitchell v. Bearden, 255 Ark. 888, 503 S.W.2d 904 (1974).
94 See, e.g., Simpson v. Kollasch, 749 N.W.2d 671 (Iowa 2008).
95 Omega Chemical Co., Inc. v. United Seeds, Inc., 252 Neb. 137, 560
N.W.2d 820 (1997).
96 Cumberland Torpedo Co. v. Gaines, 201 Ky. 88, 255 S.W. 1046
(1923) (depreciation of value due to fear, not fear itself, is the basis);
Comminge v. Stevenson, 76 Tex. 642, 13 S.W. 556 (1890). Most of the
explosives storage cases, however, involve an actual explosion.
97 Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49 (Ind. App. 1993)
(PCBs in adjacent landfill); Allen v. Uni-First Corp., 151 Vt. 229, 558 A.2d
961 (1988).
98 Arkansas Release Guidance Foundation v. Needler, 252 Ark. 194,
477 S.W.2d 821 (1972).
99 Cf. Kolstad v. Rankin, 179 Ill.App.3d 1022, 534 N.E.2d 1373, 128
Ill.Dec. 768 (1989) (preliminary injunction issued, to be modified as to
scope).
100 See New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985);
on public nuisances, § 30.6.
101 Anglado v. Leaf River Forest Products, Inc., 716 So.2d 543 (Miss.
1998) (rejecting stigma damages where defendant did not produce the
contaminating dioxin).
102 Adkins v. Thomas Solvent Co., 440 Mich. 293, 487 N.W.2d 715
(1992). Perhaps similar thinking has prompted some other decisions that
have refused claims of “stigma” damages without clearly stating reasons.
See, e.g., Chance v. BP Chemicals, 77 Ohio St.3d 17, 670 N.E.2d 985
(1996).
103 See Adams v. Star Enterprise, 51 F.3d 417 (4th Cir. 1995); Wilson
v. Amoco Corp., 33 F.Supp.2d 981 (D. Wyo. 1998); In re Chicago Flood
Litigation, 176 Ill.2d 179, 205, 680 N.E.2d 265, 278, 223 Ill.Dec. 532, 545
(1997).
104 Koll-Irvine Center Property Owners Ass’n v. County of Orange, 24
105 Golen v. Union Corp., U.C.O.-M.B.A., Inc., 718 A.2d 298 (Pa.
Super. 1998).
106 Reed v. King, 145 Cal.App.3d 261, 193 Cal.Rptr. 130 (1983) (home
seller required to disclose fact that multiple murders were committed in
the house); Strawn v. Canuso, 140 N.J. 43, 657 A.2d 420, 41 A.L.R.5th 859
(1995) (seller must disclose existence of nearby landfill that may affect
land’s market value).
107 Restatement Second of Torts § 821B (1979). Sometimes courts
emphasize that a public nuisance interferes with the rights of a sizeable
number of persons, a formula that may lose the idea of a public right.
108 See City of New York v. Smokes-Spirits.com, 12 N.Y.3d 616, 911
N.E.2d 834, 883 N.Y.S.2d 772 (2009) (statute barring direct shipment of
cigarettes to consumers did not authorize the city to bring a public
nuisance claim, at least where the nuisance claim alleged tax evasion
rather than harm to public health).
109 See Sholberg v. Truman, 496 Mich. 1, 852 N.W.2d 89 (2014)
(nonpossessory title owners not liable for public nuisance, where they were
not in control of the property and did not create the alleged nuisance).
110 See Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829 (2006)
(rejecting nuisance and strict liability claims against homeowner who
permitted storage of firearms, one of which was foreseeably stolen and
used to shoot a police officer).
111 Armory Park Neighborhood Ass’n v. Episcopal Community
Services in Arizona, 148 Ariz. 1, 712 P.2d 914 (1985); People v. Gallo, 14
Cal.4th 1090, 929 P.2d 596, 60 Cal.Rptr.2d 277 (1997) (enjoining certain
activities of street gangs).
112 See North Carolina v. Tennessee Valley Authority, 515 F.3d 344
(4th Cir. 2008).
113 Whether public regulation constitutes a taking of property for
which compensation must be made may depend in part upon whether the
property could have been regulated as a nuisance. See Louise A. Halper,
Untangling The Nuisance Knot, 26 B.C. Envtl. Aff. L. Rev. 89 (1998).
114 City of Flagstaff v. Atchison, Topeka & Santa Fe Ry., 719 F.2d 322
(9th Cir. 1983). Statutes may also require or permit liability. See Kodiak
Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).
115 Ashley County, Arkansas v. Pfizer, Inc., 552 F.3d 659 (9th Cir.
2009).
116 See Armory Park Neighborhood Ass’n v. Episcopal Community
Services in Arizona, 148 Ariz. 1, 712 P.2d 914 (1985); Restatement Second
of Torts § 821B cmt. h & § 832C cmt. e. (1979) (bawdy house next door to a
private residence). When the public nuisance actually substantially
interferes with the integrity of the land itself or causes personal injury to
its occupants, it would almost always qualify as a private nuisance and
also demonstrate special harm different in kind from that suffered by the
public generally.
117 Lower Commerce Ins. Inc. v. Halliday, 636 So.2d 430 (Ala. 1994);
Newhall Land & Farming Co. v. Superior Court (Mobil Oil Corporation),
19 Cal.App.4th 334, 23 Cal.Rptr.2d 377 (1993); Hale v. Ward County, 848
N.W.2d 245 (N.D. 2014); Restatement Second of Torts § 821C(1) (1979).
118 Hartford v. Womens Services, 239 Neb. 540, 477 N.W.2d 161
(1991).
119 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center,
Inc., 96 N.Y.2d 280, 750 N.E.2d 1097, 727 N.Y.S.2d 49 (2001).
120 E.g., Hall v. Polk, 363 So.2d 300 (Ala. 1978); Brown v. Florida
Chautauqua Ass’n, 59 Fla. 447, 52 So. 802 (1910); Shamhart v. Morrison
Cafeteria Co., 159 Fla. 629, 32 So.2d 727, 2 A.L.R.2d 429 (1947).
121 See Powell v. Houston & T.C. R.R., 104 Tex. 219, 135 S.W. 1153
(1911) (“It does not affect [plaintiff’s] right to recovery that the owners of
property fronting on the same street have been injured in the same
manner.”).
122 See Restatement Second of Torts § 821C cmt. f (1979).
123 See Taylor v. Barnes, 303 Ky. 562, 198 S.W.2d 297 (1946)
(distinguishing abutting owner from others); Burrell v. Kirkland, 242 S.C.
201, 130 S.E.2d 470 (1963); see also Hall v. Polk, 363 So.2d 300 (Ala. 1978)
(obstruction of the road did not deny plaintiff access from property to
public street, but it did obstruct the only convenient access to a nearby
river that the plaintiff was entitled to access).
124 Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir. 1974); Hampton v.
North Carolina Pulp Co., 223 N.C. 535, 27 S.E.2d 538 (1943).
125 See Louisiana ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 88
A.L.R.Fed. 239 (5th Cir. 1985).
126 Corgan v. Muehling, 143 Ill.2d 296, 574 N.E.2d 602, 158 Ill.Dec.
489 (1991) (psychologist would be liable if he engaged in sexual activities
with patient without holding a current registration as required by
“nuisance” statute).
127 E.g., In re Lead Paint Litigation, 191 N.J. 405, 924 A.2d 484
(2007); State v. Lead Industries Ass’n, Inc., 951 A.2d 428 (R.I. 2008).
128 Anderson v. W.R. Grace & Co., 628 F.Supp. 1219 (D. Mass. 1986)
(leukemia victims of groundwater contamination).
129 Venuto v. Owens-Corning Fiberglas Corp., 22 Cal.App.3d 116, 99
Cal.Rptr. 350 (1971); cf. In re The Exxon Valdez, 104 F.3d 1196 (9th Cir.
1997) (massive oil spill; “ ‘the right to obtain and share wild food, enjoy
uncontaminated nature, and cultivate traditional, cultural, spiritual, and
psychological benefits in pristine natural surroundings’ is shared by all
Alaskans” and hence Native Americans suffered no “special harm”).
130 McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391
(1928).
131 The use of the nuisance label to evade public entity immunities is
more complicated because the immunities are so often overstated in the
first place. Ideally, in such cases the nuisance label would be dropped
when the plaintiff asserts personal injury, and the immunity reformulated
more narrowly.
132 E.g., Aviation Cadet Museum v. Hammer, 373 Ark. 202, 283
S.W.3d 198 (2008) (upholding lower court decision that operation of airport
was a nuisance and could be enjoined); Bishop Processing Co. v. Davis, 213
Md. 465, 132 A.2d 445 (1957) (injunction to avoid escape of noxious gases
that interfere with plaintiff’s use and enjoyment of property); see 1 Dan B.
133 Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870,
309 N.Y.S.2d 312 (1970).
134 E.g., Northern Indiana Pub. Serv. Co. v. Vesey, 210 Ind. 338, 200
N.E. 620 (1936); Riter v. Keokuk Electro-Metals Co., 248 Iowa 710, 82
N.W.2d 151 (1957) (factory furnishing work in the community); Madison v.
Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904)
(jobs in community plus enormous increase in tax assessments in county
due to defendants’ smelters); see Jonathan M. Purver, Annotation, Modern
Status of Rules as to Balance of Convenience or Social Utility as Affecting
Relief From Nuisance, 40 A.L.R.3d 601 (1971).
135 See Simpson v. Kollasch, 749 N.W.2d 671 (Iowa 2008) (refusing to
prospectively enjoin construction of a proposed hog-processing facility); but
see Sowers v. Forest Hills Subdivision, 294 P.3d 427 (Nev. 2013)
(permanent injunction upheld against proposed wind turbine in a
residential area, where noise, shadow flicker and aesthetic impact far
outweigh the turbine’s potential utility).
136 E.g., Spirit Ridge Mineral Springs, LLC v. Franklin County, 337
P.3d 583 (Idaho 2014) (private nuisance action seeking to enjoin a gun
range; any nuisance created by the range had abated in 2008).
137 See Mobile & O.R. R. v. Zimmern, 206 Ala. 37, 89 So. 475 (1921).
139 Beecher v. Dull, 294 Pa. 17, 143 A. 498 (1928).
140 Smith v. Stasco Milling Co., 18 F.2d 736 (2d Cir. 1927).
141 Restatement Second of Torts § 941 cmt. e (1979).
142 Spur Industries, Inc. v. Del E. Webb Development Co., 108 Ariz.
178, 494 P.2d 700, 53 A.L.R.3d 861 (1972). See Guido Calabresi & A.
Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One
View of the Cathedral, 85 Harv.L.Rev. 1089 (1972).
143 On the damages rules for nuisance, see 1 Dan B. Dobbs, Law of
Remedies § 5.6(2) (2d ed. 1993).
144 See, e.g., Tri-County Investment Group, Ltd. v. Southern States,
Inc., 231 Ga.App. 632, 500 S.E.2d 22 (1998); Smith v. Carbide & Chemicals
Corp., 507 F.3d 372 (6th Cir. 2007).
145 Weinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996); see also Hager v.
City of Devils Lake, 773 N.W.2d 420 (N.D. 2009); Schneider Nat’l Carriers,
Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004).
146 E.g., Superior Const. Co. v. Elmo, 204 Md. 1, 102 A.2d 739, 48
A.L.R.2d 932 (1954).
147 Reeser v. Weaver Bros., Inc., 78 Ohio App.3d 681, 605 N.E.2d 1271
(1992). In the case of a private nuisance without threat of public harm,
such as waters backed up onto the plaintiff’s land without toxic deposits,
recovery of repair or cleanup costs may be limited so that they do not
exceed the diminution in value that would occur if the nuisance were
allowed to recur. See Stratford Theater, Inc. v. Town of Stratford, 140
Conn. 422, 101 A.2d 279, 41 A.L.R.2d 1060 (1953).
148 E.g., Woodmen of the World, United Number 3 v. Jordan, 231
Ga.App. 517, 499 S.E.2d 900 (1998); Gorman v. Sabo, 210 Md. 155, 122
A.2d 475 (1956).
150 See, e.g., Robert C. Ellickson, Alternatives to Zoning: Covenants,
Nuisance Rules, and Fines as Land Use Controls, 40 U.Chi.L.Rev. 681
(1973); W. Page Keeton & Clarence Morris, Notes on “Balancing the
Equities,” 18 Tex. L. Rev. 412 (1940); Jeff L. Lewin, Compensated
Injunctions and the Evolution of Nuisance Law, 71 Iowa L.Rev. 775 (1986);
A. Mitchell Polinsky, Resolving Nuisance Disputes: The Simple Economics
of Injunctive and Damages Remedies, 32 Stan.L.Rev. 1075 (1980); Edward
Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63
Va.L.Rev. 1299 (1977). Some of the writings on this subject are discussed
in 1 Dan B. Dobbs, Law of Remedies § 5.7(4) (2d ed. 1993).
151 See Marshall S. Shapo, Principles of Tort Law ¶ 36.04, at 195
(2003).
751
Part VI
VICARIOUS LIABILITY, STRICT

LIABILITY, AND PRODUCTS LIABILITY
753
Chapter 31
VICARIOUS LIABILITY FOR PHYSICAL

HARMS
Analysis
§ 31.2 Rationales for Respondeat Superior Liability
§ 31.6 Independent Contractors Performing Nondelegable Duties
__________

Vicarious liability is liability for the tort of another person.
Such liability is an important exception to the usual rule that each
person is accountable for his own legal fault, but in the absence of
such fault is not responsible for the actions of others. The most
common kind of vicarious liability is based upon the principle of
respondeat superior.1 Under that principle, private employers2 are
generally jointly and severally liable along with the tortfeasor
employee for the torts of employees committed within the scope of
employment.3 The principle does not apply among employees
themselves—employees are not liable for the torts of the employer
or other employees.4
The terminology of respondeat superior, somewhat strange in
today’s world, sets up some fundamental distinctions. Broadly
speaking, employers are principals and employees are agents.5
Some employees are only agents in the sense that they can make
contracts or sell goods for the employer. As to these agents, the
employer may be liable on the contract signed by the agent but not
for the agent’s torts. Other employees, those who are expected to
carry out physical tasks, are called servants. The employer of these
754
servants is called a master.6 The terms distinguish not only

between servants and other agents, but also between servants and
independent contractors. The master is vicariously liable in tort for
the torts of servants committed within the scope of their
employment, but the employer is not ordinarily vicariously liable
for the torts of independent contractors.7
Respondeat superior liability has ancient roots in Roman law
and may have been in continuous use in some form more or less
since the Norman Conquest of England.8 The ordinary instances of
it today are non-controversial. The bus company’s driver
negligently drives the company’s bus into the plaintiff’s car. The
negligent driver is of course liable;9 under the principle of
respondeat superior, the bus company itself is treated as a
tortfeasor as well. As a practical matter, that means that the
plaintiff will be able to collect her judgment against the bus
company and will not be left without a remedy merely because the
driver himself could not pay.10
Distinguishing vicarious liability from primary liability. An
employer may be liable to an injured plaintiff because of the
employer’s own fault. For example, the employer might have
negligently provided a vehicle for use by an employee known to be
a dangerous driver,11 or might have negligently hired, trained, or
supervised a dangerous employee.12 In such cases the employer
might be liable for his own negligent entrustment or for his
negligence in hiring or supervising. Such primary liability—
liability for the employer’s own fault—is not vicarious liability.13
Role of fault in vicarious liability. From the employer-
defendant’s point of view, vicarious liability is strict liability, since
he is liable without personal fault. That is not quite the case from
the plaintiff’s point of view. The plaintiff must prove that the
employee committed a tort14 and was acting within the scope of
employment when he did so. In the great majority of cases, then,
the plaintiff must thus prove fault, although not necessarily the
personal fault of the employer.
755
§ 31.2 Rationales for Respondeat Superior

Liability
It would not be difficult to justify respondeat superior liability if
it only meant that the master was liable for torts committed at his
specific direction, as where the master tells the servant to drive
faster than the speed limit permits. But respondeat superior
liability is much broader. The master is liable for the servant’s
negligent acts even though master did not command those acts and
could not foresee them in any specific way. Sometimes, masters are
liable even for torts committed by servants in violation of specific
directions or rules.15
Tort law is assuredly imperfect, but it usually attempts to hold
individuals accountable for their wrongs and only for their wrongs.
Although pockets of strict liability exist, such liability is relatively
rare. Consequently, vicarious liability under the doctrine of
respondeat superior, which is strict in the sense that it holds an
employer liable without the employer’s personal fault, seems to
require some explanation.
Courts have usually defended strict liability by emphasizing
either (1) that an innocent person, either the plaintiff or the
employer,16 must bear the loss, (2) that the employer had formal
right of control over the employee’s work,17 or (3) that the employer
benefits from the employee’s work.18 The first argument is suspect
because it is applied selectively, not as a general principle of tort
law. To apply it generally would be to adopt a general regime of
strict liability. The other two arguments offer attractive
implications that responsibility follows control and that one who
intentionally reaps the benefits of an activity must bear the
burdens as well. But control is doubtful in many cases and the
connection between the employee’s tort and the employer’s benefit
is often tenuous.
Commentators have developed some other explanations. One is
that deterrence is best achieved by imposing liability on the
employer, who will then seek to avoid his own liability by
exercising his considerable control over employees to discourage
their torts.19 Economic thinkers have argued that enterprise
liability—that is, the strict liability of business enterprises for
harms perceived to be recurrently associated with their operation
—is justified as economically efficient. By this they mean that such
liability will tend to provide optimal deterrence of activities that
are harmful.20 Others, argue that enterprise liability provides
appropriate “insurance” against harms that are not worth
preventing. The enterprise can raise prices or lower dividends and
thus distribute
756
or spread the losses resulting from injury to all those who

benefit from its activities.21 In this way, the injured individual
does not bear the whole weight of the loss herself. Since no one
person bears the whole loss, the loss is not so disruptive. Perhaps
more importantly, those subjected to risks of the enterprise are
also those who share in the burdens and benefits of its liability.
The consumer pays a small sum more for the products of the
enterprise, but in return obtains a degree of protection in the form
of liability if she is injured.22
Still another justification for respondeat superior liability is
that it is fair or just. When risks are created randomly by
occasional, infrequent acts of individuals, liability is imposed only
if the act causing harm is negligent. When an enterprise,
individual or corporation, engages in systematic or repeated
activity, however, some risks are more or less typical or
characteristic of the activity even when no negligence can be
shown. The bus company must expect that sooner or later its buses
will cause harm, even if drivers are invariably careful. In this
sense, bus companies impose risks that are materially greater than
or different from the risks that we all impose upon one another by
occasional use of motor vehicles. Although the substantial-
certainty definition of intent has not been carried so far, it is
nevertheless reasonable to say that the bus company can be
statistically certain that bus injuries will be negligently inflicted
and in that sense intends them. Although this is not moral fault,
the bus company employer should accept the burdens that go with
the benefits of its operation and hence should be responsible for the
bus driver’s negligence as a matter of justice or fairness.23
Many decisions either verbalize similar reasoning or obtain
results consistent with it.24 This rationale is also consistent with
the rule that the employer remains liable for harms caused by
risks of the enterprise even if the employee has a purely personal
defense, as where the statute of limitations has run on the
plaintiff’s suit against the employee but not on the suit against the
employer25 or where the employee enjoys a purely personal
immunity but the employer does not.26 Some authority, however,
has refused to consider the “enterprise liability” rationale for
respondeat superior liability, but may nonetheless obtain results
consistent with that rationale.27
757

Vicarious liability under the respondeat superior doctrine
ordinarily requires an employment relationship or another
consensual arrangement under which one person agrees to act
under another’s control.28 Thus, apart from statute, parents are
not vicariously liable for their children’s torts, although they may
be responsible for their own negligence in failing to control
children.29 Similarly, someone who merely assists the defendant
without submitting to the defendant’s right of control is not
ordinarily an agent or servant.30 Employment itself is not enough
for vicarious liability, however. With certain exceptions, vicarious
liability attaches for physical harms resulting from conduct of an
employee only when the employee acts as a “servant” rather than
as an independent contractor.31 Finally, respondeat superior
liability is imposed only for acts of the servant committed within
the scope of his employment.32
General requirements. Under the traditional rules, a servant’s
conduct is not within the scope of his employment unless it is of the
same general kind as authorized or expected, or incidental to such
conduct, and the servant was acting within the authorized time
and space limits. The Restatement Second of Agency added that
the servant’s conduct must have been “actuated, at least in part, by
a purpose to serve the master,”33 a requirement echoed in the
Restatement Third as well.34 Some authority accepts this rule
more or less literally,35 but a number of modern courts have
rejected it.36 Even where the Restatement “purpose” limitation has
been recognized, it is usually understood as a broad aim rather
than as a technical demand.37 It is also substantially qualified by
the
758
rule that the employer is vicariously liable for the employee’s

acts outside the scope of employment if his employment aided him
in accomplishing the tort.38
Determining scope of employment. Courts have provided many
examples of the broad approach to scope-of-employment issues. For
instance, a cook in a restaurant who is not actually cooking but
who is instead talking with a customer and flipping a knife that
has nothing to do with his job is within the scope of his
employment when the knife accidently strikes the customer.39
Similarly, an employee-driver does not leave the scope of his
employment merely because he acts negligently in violation of his
employer’s instruction to act with care, or even when he violates
his employer’s instructions not to take a passenger.40 Scope of
employment questions are usually resolved only by evaluation of
many factual details on a case-by-case basis.41 Not surprisingly,
then, the question whether an employee’s act is within the scope of
employment is for the jury unless the matter is so clear that
reasonable people could not differ.42
The Going and Coming Rule
General rule. The master is not vicariously responsible for the
acts of a servant before work begins or after it ends. In particular,
the going and coming rule holds that in jobs with a situs such as an
office or factory, an employee coming to work or going home from it
is not in employment.43 Consequently, the employer is not liable
for, say, automobile accidents of employees on their way to work or
after they have left work.44
Exceptions. The employer may be held vicariously liable if the
job is broader and requires travel outside the area or the employee
is paid for travel time.45 The same may be true where an employee
who works out of town is paid portal-to-portal or is on call or on
duty at all times. In such cases the employee may remain in the
course of employment even during travel, although vicarious
liability will follow only where his act is found to be within the
scope of employment.46 Similarly, employees like police officers
who are always subject to job demands may be acting within the
scope of employment even when
759
off duty47 so long as they are not engaged in purely personal

activities.48 Problems arise with off-duty police officers employed
part-time by private businesses. A number of cases conclude that
an off-duty officer is still obliged to enforce at least some laws when
he is off duty and in such a case he cannot be acting within the
scope of his employment for a private employer.49 Some other
courts have rejected this line of reasoning, holding that, following
usual agency principles, the officer could be within the scope of his
private employment even when enforcing the law or apprehending
criminals.50
Exceptions to the going and coming rule have also been found
when the employee is on a special errand for the employer while on
his way to or from work or after regular work hours51 or otherwise
is serving the employer’s interests as well as his own (the so-called
dual-purpose exception).52 This may be the case where the
employer, by general policy or specific command, directed the
employee to carry out some job-related errand during time that
would otherwise be off the job.53 It may also be the case where the
employer directed the employee to attend a business conference out
of town.54 An exception to the general going and coming rule may
also be found when the employer requires the employee to use the
employer’s vehicle for commuting, but not necessarily when the
employer merely permits use of the employer’s vehicle for this
purpose.55
Frolic and Detour
Detours. Employees who have arrived at work and begun their
jobs can nevertheless physically remove themselves from the job.
Not uncommonly, employees indulge in “detours” for their personal
amusement. The office messenger, delivering a message from the
tenth floor to the fifth, might stop off to confirm a date with a
friend on the ninth floor, for example. If he takes the stairs rather
than the elevator because the ninth floor is only one flight away
but negligently knocks the plaintiff down before he reaches the
landing, he has physically “deviated” from employment only in
taking the stairs rather than the elevator; in terms of his intent, he
has a dual motive, part of which is to serve the employer, since he
is still on his way.56 As long as the detour is a slight deviation or is
usual, expected, or tolerated in the particular employment, the
servant is still acting within the general scope of employment and
the employer will be vicariously liable for torts committed along
the way.57
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Frolics and reentry. On the other hand, if the messenger decides

the day is too nice to miss a baseball game and negligently crashes
his car into the plaintiff on his way to the ball park, he is almost
certainly “on a frolic of his own” and not at all within the scope of
employment.58 When the frolicking employee starts back to work
after the game is over, the problem is to determine when he has
reentered employment. Reentry into employment occurs only when
the employee reaches a point reasonably near the authorized time
and space limits of the job and the employee has formed an intent
to serve the employer’s business.59 Such cases leave much room for
different evaluations by the jury about the extent and expectation
of deviation from or return to employment.60
Non-work-related tasks. Although frolic-and-detour terminology
is often associated with an employee’s geographical or temporal
deviation from employment, employees may depart from
employment without leaving the situs of their work. They may do
so by undertaking tasks alien to the work they were employed to
do. For example, an employee hired to cut down an elm tree on the
employer’s property undertakes to cut down an oak on the
neighbor’s land. That may enhance the employer’s view and hence
benefit the employer in some sense, but it is outside the scope of
employment and the employer will not be vicariously liable for the
employee’s tort.61
An employee’s personal acts. Employees may also depart from
employment by engaging in purely personal acts during working
hours.62 Employee participation in recreational activities
sponsored or permitted by the employer may remain personal and
outside the scope of employment, in spite of the fact that the
recreation is offered as compensation or for morale, if the
recreation serves no specific business purpose and recreation is not
a characteristic of the business.63 On the other hand, activities on
the job that serve both personal and business purposes do not
necessarily count as a departure from employment.64 Most acts for
personal comfort, such as using the toilet,65 taking a coffee break,66
and even smoking67 or drinking alcohol68 are now recognized as
acts incident to employment, so that the employer is liable when
the employee negligently injures another while so engaged.
761
An Employee’s Intentional Torts

In many cases, perhaps most, an employee’s intentional torts
are purely personal acts and thus not within the scope of
employment. An employee strikes a customer because of his
personal grudge. Nothing more appearing, the tort is the
employee’s tort and the employer is not liable. In recent years the
reported cases have often involved sexual assaults or other sexual
behavior of an employee. Intentional sexual torts, like other violent
conduct, is often personal to the employee, so that the employer is
usually not found liable.69
As noted above,70 both the Second and Third Restatements of
Agency provide that the tortfeasor’s act must be motivated, at least
in part, to serve the employer.71 Such an approach leaves little
room for vicarious liability of an employer whose worker has
committed an intentional tort,72 although such a result is possible,
as where a car dealership’s employee fired a pistol at the tires of a
vehicle in an attempt to repossess it while a customer was driving
it.73
However, at least since the middle of the last century, a number
of courts have rejected the Restatement formulation by recognizing
that intentional torts committed by an employee are within the
scope of employment when employment furnishes the specific
impetus for or increases a general risk of employee misbehavior.74
Although the precise tortious act itself is not something the
servant was employed to do, it is enough for some courts if the
general job activity that gave rise to the tortious act was within the
scope of employment.75 The bar bouncer hired to eject unruly
patrons may use excessive force and thus become the author of a
battery. Even if that occurs because the bouncer loses his temper
or is unnecessarily rough because of an argument with the patron,
it is nevertheless the very kind of risk that goes with the work, and
the bar owner is vicariously liable.76 The employee who commits
assault and battery on a competitor’s worker to try to prevent theft
of his employer’s stored supplies will be found to be acting
762
within the scope of employment if his “use of force was

foreseeable given his employment and the duties he undertook.”77
The hospital day-care worker who strikes an infant’s head on the
corner of a shelf to stop the child from crying may leave the
hospital vicariously liable unless the worker’s action was “so far
removed from any work-related endeavor” that it could be seen as
“a personal course of conduct unrelated to her work.”78 The
bartender who puts a toothpick in a patron’s bottle of beer will
leave the employer vicariously liable for the patron’s injuries, as
long as that act was “fairly and naturally incidental to the
employer’s business, although mistakenly or ill-advisedly done.”79
Still, there are limits even to this broader approach (or set of
approaches), and vicarious liability will not be imposed where the
employee’s acts are fairly seen as “completely personal” or “highly
unusual.”80
Employees in positions of trust and confidence. Counselors,
therapists, clergy, youth leaders, and others in a position of trust
and confidence often seem to take advantage of innocent or
vulnerable patients or parishioners to engage in sexual activity
with them, usually to their detriment. Although sexual activity is
quintessentially personal, such activity is one of the risks of
relationships that generate confidence. Consequently, employers of
therapists and clergy have been held subject to vicarious liability
in many such cases.81 The case of outright rape by an employee
who is otherwise carrying out employment duties is more difficult,
but sometimes even here the employment creates the risk or
impetus of the attack, just as it can create the risk of other
physical batteries. A police officer’s job, for instance, gives him a
great deal of coercive power over citizens who might be subject to
arrest and inherent in that power is the potential for abuse.
Accordingly, the courts have held that the employer was
vicariously responsible for a police officer’s on-duty rape of a
woman he had detained82 or even a sexual assault on a citizen who
is not detained.83 Even if rape is not an inherent risk of the type of
work, vicarious liability is appropriate when, in the particular case,
it arises immediately out
763
of a conflict generated by the employment84 and even when it is

made peculiarly possible by the employment.85
Schools and churches. Some courts take a much narrower view
of vicarious liability, at least in cases where the liability of schools
and churches is in issue. In a Maryland case, a public school
teacher used a ruler to beat a 9-year-old student with Down
syndrome who had urinated in his pants, but the court believed
that this action was outside the scope of employment because
corporal punishment had been forbidden.86 In a Minnesota case,
the court thought a school teacher’s sexual activity with a teenaged
student represented a risk that was unforeseeable to the school-
employer and hence outside the scope of employment, although it
occurred in classrooms and at school-related functions.87 A number
of courts have also displayed a determination to relieve churches of
liability, often asserting that the First Amendment makes it
necessary to do so.88 It is not clear whether these cases reflect
narrow notions of vicarious liability, a preference for the public and
religious employers, or merely a lack of information about the
kinds of risks associated with the activities involved.
Caretakers. Courts have sporadically recognized that those who
undertake the care of people who are helpless to care for
themselves may fall under special duties. A day-care center that
cares for infants and toddlers would be expected to respond in
damages for harms done to such a small child even if the child
cannot prove how the harm came about.89 The special duty of
caretakers may be expressed in special rules of respondeat superior
as well. In fact, common carriers were once treated as caretakers,
because during carriage, their passengers were removed from
normal sources of support and relatively helpless.90 Under this
approach, carriers were held responsible for injuries inflicted on
passengers by servants who were not in the scope of employment,
often on the rationale that an implied contract between carrier and
passenger to deliver the passenger safely to her destination creates
a nondelegable and strict duty.91 In an Indiana case,92 the
defendant Children’s Center cared for a severely retarded and
disabled child of 14, who had the mental capacity of a five-month-
old infant. One of its attendants sexually abused the child. In a
suit against the Children’s Center, the court held that the jury
could find these acts sufficiently related to employment to warrant
vicarious liability. The court went on to hold, by analogy to the
common carrier rule, that the Center’s duty to the helpless could
not be satisfied by delegating the duty to others.93
764

Employers are not vicariously liable for the torts of carefully
selected independent contractors,94 subject to a number of
exceptions.95 Independent contractors are contrasted with the kind
of employee traditionally called servants. An independent
contractor—say the person hired to paint your car—might be
within the scope of employment when he negligently injures
someone, but, unless an exception applies, you are not liable for his
tort. As the courts see it, it is the contractor’s business, the
contractor’s tort, and the contractor’s liability. The employer may
be liable in such cases for his own personal negligence if he hires a
dangerous contractor or otherwise personally risks harm to the
plaintiff, but he is not vicariously liable.96
Jurists have found it difficult to formulate a crisp and workable
definition of independent contractors, but the concept is easy to
understand and in many cases easy to apply as well. Independent
contractors are usually persons who are perceived to be operating
their own business and hence not subject to the employer’s right of
control over the manner, means, and details of the work.97 Instead,
the independent contractor’s employer has a say-so only about
whether the end product is acceptable, not about the exact manner
or means used to achieve it.98 On the other hand, if the employer
has a right to control the manner, means, and details of the work,
the employee is almost always a servant. Even if the employer does
not exercise control over the manner of work but merely has the
right to control, the employee is still a servant.99
Several kinds of evidence bear on the employer’s power to
control. The employer’s right to discharge the employee; payment
of regular wages, taxes, workers’ compensation insurance and the
like; long-term or permanent employment; and detailed
supervision of the work tend to indicate a master-servant
relationship. The employee’s special skills; the fact that he works
for others or is perceived to be in a business of his own; supplies his
own tools or instrumentalities; and hires and fires his own
employees tend to show that the employee is an independent
contractor. Many pieces of subsidiary evidence may be relevant.
For instance, the fact that the employer is not in business would
tend to show that the employee is an independent contractor
operating his own business. All these “factors” in one form or
another have been considered in the cases100 and approved
765
by both the Second and Third Restatements of Agency.101 No

one factor or piece of evidence is controlling. The employee’s special
skill tends to indicate that he is an independent contractor, but
nowadays even skilled professionals such as doctors may be
“servants” of a hospital for vicarious liability purposes if they are
subject to the employer’s control.102
The fact that someone works only for a single employer tends to
show that he is a servant of that employer, and not an independent
contractor. Thus a full-time house cleaner or janitor is a servant,
while one who provides cleaning services to all comers may be
viewed as operating his own business as an independent
contractor.103 A weighmaster who works exclusively for one
chicken processor may be an employee even though he provides his
own trucks and hires his own chicken-catching crews.104
The own-business and control rules are hard to apply in close
cases. Working relationships are varied and the circumstances
emit mixed signals. In addition, courts may differ in their sense of
appropriate policy. Patients might be surprised to find that their
hospital has hired an independent contractor to operate its
emergency room.105 A foster parent who is paid by the state to care
for one or more children usually only works for one person—the
state. The foster parent is subject to state inspections and some
degree of state control. Yet the control may not extend to small
daily tasks, so the foster parent may be considered an independent
contractor.106 The newspaper carrier who delivers papers to your
porch may be rousted out of bed by the employer if he is late, but
sometimes courts have treated him as an independent contractor
even though he is permitted to work only for the newspaper.107
When the evidence points in both directions, litigation is likely
to be required. That litigation is resolved less by rules than by
analysis of the evidence pointing to control, with analogies to
factually similar cases. When the evidence is substantially mixed,
the question is usually one for the jury. But if the undisputed
evidence shows that the employer has little control over the means
and manner of work, the court may conclude as a matter of law
that the worker is an independent contractor.108
Franchisees and licensees. Service stations, motels, fast-food
outlets and many other businesses may appear to consumers109 to
be manifestations of a national company with a well-known name.
Yet the local operator may be an independent contractor who is a
licensee of the franchisor’s trademark. At the same time, the
licensee or franchisee is usually subject to somewhat intense
control by the franchisor. For this reason, it is
766
sometimes argued that the local enterprise’s appearance as an

independent contractor is illusory. Although the parties’ intent is a
factor in determining their status, the fact that they themselves
label the agent as an independent contractor is not
determinative.110 Instead, courts will consider many factual details
tending to prove or disprove the employer’s right to control, or
practical exercise of control, over details of the work. Given the
employer’s interest in protecting its trademark by setting
operating standards, courts may tolerate a degree of control over
details and still characterize the local operation as an independent
contractor.111
The local owner or lessee of the gasoline service station, for
example, might be subject to many of the national franchisor’s
company rules, but if he is free to set prices and hours of operation,
and free to choose employees, and free to cancel the arrangement,
courts are likely to treat him as an independent contractor unless
other evidence shows that the franchisor has the right to control
details of operation.112 Similar holdings can be found for fast-food
restaurants113 and other franchisees.114 Sometimes, even taxi
drivers who “lease” a cab from the franchisor are regarded as
independent contractors.115 Everything turns on the facts,
however; if the franchisor exercises sufficiently detailed control,
the court will permit the jury to find that the franchisee is a
servant, not an independent contractor.116
§ 31.6 Independent Contractors Performing
Nondelegable Duties
In spite of the general rule to the contrary, courts have
recognized that a business enterprise should not always escape
responsibility by doing its work through independent contractors.
When courts conclude that as a matter of policy the enterprise
should be responsible for the torts of independent contractors who
are carrying out the work of the enterprise, they say that the
enterprise had a “nondelegable duty.” What they mean by this is
that the enterprise cannot discharge its obligation of reasonable
care by hiring independent contractors to fulfill it;117 they do not
mean to say that the independent contractor himself escapes
liability.118 Courts conclude that some duties cannot be transferred
or shifted to contractors because the enterprise that employs the
767
independent contractor reaps the benefit of his work,119 and can

select competent and financially sound contractors who could bear
the costs of their own torts.120
Inherent danger. Courts say that the duty of care is
nondelegable when the employer engages in activities he knows or
has reason to know are inherently or intrinsically dangerous.121
Such activities are dangerous by nature and not merely because
they are carried out in a risky manner.122 If the enterprise hires an
independent contractor to dust crops with poison, it is liable for his
negligence in doing so, in spite of the fact that he is undoubtedly a
contractor and not a servant.123 The activity need not be
abnormally dangerous or ultrahazardous, which would provide an
independent ground of employer strict liability.124 Any things that
are destructive by nature fall under the rule for inherently
dangerous activities, for example, poisons, explosives or
fireworks,125 strong acids,126 or high voltage lines in an area of
public accommodation.127 Even an independent contractor’s
provision of armed guards as part of a security service may be
inherently dangerous, making the employer liable for the guards’
negligence in using their weapons.128 And Florida has held that
transport of an 82-ton turbine by road is inherently dangerous,
with the result that the person who arranged the transport by an
independent contractor is vicariously liable.129
Peculiar risk. The idea has been extended to cover not merely
inherently risky work but also work that creates a “peculiar” or
special risk of substantial harm in the absence of special
precautions.130 To be peculiar, the risk must be somehow
“different”131 but the peculiarity of the risk may lie in the eye of
the beholder. Courts have included or allowed juries to include the
risk that use of a brush-hog will throw out debris that injures
768
bystanders,132 that sprayed paint will spatter a neighbor’s

property,133 that cranes used in construction will drop girders
weighing many tons,134 that demolition of buildings in a crowded
city will cause them to fall into adjacent buildings,135 and that
door-to-door salesmen, once in a prospect’s home to sell vacuum
cleaners, will sexually assault the customer.136 In the usual
peculiar risk case, the employer is vicariously liable for the
contractor’s negligence, but quite distinctly, the employer may be
liable for its own negligence in failing to provide in the contract for
special precautions or to supervise the contractor’s work in cases of
special danger.137
Beyond this, one who employs a contractor to do work that is
likely to involve trespass or creation of a nuisance is liable for the
harm resulting from such a trespass or nuisance.138 Underground
coal mining necessarily involves risks that removal of coal will
cause the surface to subside to the damage of its owners, so it is
appropriate to hold the owner of the mine liable for such harm
even if a lessee carried out actual removal of the coal.139 The same
idea has been applied when the work to be done runs substantial
risks of harm through breach of the peace or otherwise.140
Public danger. Special danger in the work itself is not the only
basis for finding a nondelegable duty. Such duties are imposed as
well when the enterprise acts through contractors to carry on
construction or the like in public places, for example in excavating
or maintaining a public highway.141
Landowner-employers. Many of those who hire independent
contractors are landowners contracting for repair or improvements.
The duty of a lessor to maintain leased premises in reasonable
safety is said to be nondelegable,142 as it is the possessor’s duty to
maintain premises in reasonably safe condition, at least for those
rightfully upon the land.143 That duty includes the duty of care
imposed when land is held open to the public.144 In each of these
cases, the landowner-employer is subject to liability for the
contractor’s negligence. For instance, the hotel owner whose
independent plumber misconnects the cold water faucet so that a
guest is burned in the shower is responsible as if he had done the
work himself.145
Statutes. Statutes are sometimes construed to provide
nondelegable duties.146 For example, scaffolding acts or the like
provide that certain safety standards must be met
769
in structural work and that the landowner who employs a

contractor as well as the contractor himself is responsible.147 But
courts have gone further by treating statutory commands as
creating nondelegable duties even when the statute itself is not
construed to require such a rule.148 For instance, a creditor who
hires a contractor to repossess a delinquent debtor’s car is liable if
the contractor violates a statute by breaching the peace in making
the repossession.149 A contract between employer and contractor
might have the same effect, so that the contractor cannot escape
liability to the employer when his subcontractors cause harm.150
Although the rule that statutes create a nondelegable duty is
sometimes stated broadly,151 as if to say that the employer is liable
for harm resulting from any statutory violation by the contractor,
that is not so; there are certainly cases that refuse to make a duty
nondelegable merely because it is one imposed by statute.152
Courts seem to use statutes as a basis for creating a nondelegable
duty when the statute coincides with judicial notions of fairness or
policy. Banks that hire contractors to repossess cars are very
definitely pursuing their enterprise as lenders and should be liable
for the predictable breaches of the peace that accompany this
method of enforcing a security interest. A statute against breach of
the peace adds little or nothing to such a perception. In other
statutory-violation cases there is no reason to impose liability upon
the contractor’s employer. If you take a cab to the airport, you have
certainly hired an independent contractor, not a servant; but it is
highly improbable that you would be liable to an injured person if
the driver causes harm by violating a traffic ordinance.
Collateral negligence. Even when the duty is nondelegable, the
employer is not responsible for “collateral negligence” of the
independent contractor.153 Collateral negligence creates a risk that
is not a usual or inherent part of the work154 or is outside the scope
of the employer’s enterprise.155 For instance, if the contractor’s
activity is inherently dangerous because it involves explosives, an
injury from explosives is definitely an injury inherent in the risk
and the employer of the contractor remains subject to liability.156
On the other hand, if the injury occurs only because a defective
ladder is used in connection with the same work, such an injury is
collateral because it is not a result of the inherent danger.157
Similarly, when the nondelegability rule is based
770
upon the landowner’s duty to provide reasonably safe conditions
rather than upon inherent danger, the landowner-employer of a
contractor will not be responsible for the contractor’s negligence in
driving negligently to get supplies, but will be liable for harm
caused by defective conditions created by the contractor on the
land.158 The affinity of this line of thought with the scope-of-risk
rules of proximate cause seems plain enough.
Retained control: primary and vicarious liability. The
independent contractor rule does not relieve employers of liability
for their own negligence. For example, employers may be negligent
in choosing an incompetent and dangerous contractor, or in failing
to exercise appropriate supervision and control.159 The employer is
frequently a landowner upon whose land the contractor is working.
If the employer retains possession of the land or otherwise retains
a degree of control for other reasons, he must exercise that control
with reasonable care for the safety of others.160 The owner who
actively directs a contractor’s dangerous construction work on his
land may thus be held liable for his own negligence, quite apart
from any vicarious liability or nondelegable duty. It is also possible
to think of retained control as bearing on the owner’s purely
vicarious liability, because to the extent control is retained, the
putative independent contractor may look more like a servant.161
Apparent agency issues arise in the tort-law context when an
employer retains an independent contractor but creates the
appearance that the contractor is acting as his servant. If the
plaintiff deals with the independent contractor in the reasonable
belief, induced by the employer’s conduct, that she is dealing with
the employer himself or his servants, she is entitled to hold the
employer vicariously liable when she suffers physical harm at the
hands of the contractor.162 In effect, the plaintiff can hold the
employer to the appearances he has created. Similarly, if the
employer creates the appearance that an employee is acting within
the scope of his employment or authority when he is not, the
plaintiff who reasonably relies upon the appearance can rightly
subject the employer to vicarious responsibility.163 The employer’s
conduct creating apparent agency may include non-action, as
where the employer with opportunity to do so fails to clarify
appearances that an agent is acting within the scope of
employment.164
771
For example, suppose the plaintiff wishes to hire a moving or

storage company and finds the name “Bekins” in the Yellow Pages.
She recognizes the name and calls the listed number. The phone
call is answered “Bekins” and when she retains the company, its
employees wear uniforms saying “Bekins.” One of the employees
negligently sets fire to her house, but upon investigation it appears
that the company she hired was merely an independent company
permitted to use the Bekins name. In such a case, Bekins is subject
to liability, for it has created the appearance that the local
company was its agent or servant and not merely a licensee of its
trade name.165
An issue that has both bedeviled and divided courts in this area
is whether a plaintiff must prove reliance on the appearance of
agency the defendant has created, and if so, what exactly that
means.166 According to some courts, the Restatement Second of
Agency rule for physical harm cases,167 often called agency by
estoppel, requires reliance by the plaintiff. But, the same jurists
say, the Restatement Second of Torts rule,168 often called apparent
or ostensible agency, allows recovery without reliance,169
specifically only a “reasonable belief” that the services are being
rendered by the employer.170
The two Restatements reflect an even greater difference on
another issue. The Restatement Second of Agency—the “estoppel”
approach as the courts have labeled it—requires that the employer
manifest or create the appearance that the employee is a servant.
The Restatement Second of Torts imposes no such requirement. It
requires only that the services be accepted in the reasonable belief
that they are delivered by the defendant rather than an
independent contractor. The plaintiff’s reasonable belief will most
often arise because of the defendant’s acts in creating the
appearance of agency. Under the estoppel approach, even the
plaintiff who reasonably believes that the independent contractor
is the defendant’s servant cannot recover without showing that the
defendant himself created that belief.171
Moving toward resolution. The Restatement Third of Agency,
unlike the Second, divides “apparent authority”172 and “estoppel to
deny existence of an agency relationship”173 into two sections and
sets up different rules for each. Apparent authority requires no
reliance at all, only that a third party (such as a plaintiff)
“reasonably believes the actor has authority to act on behalf of the
principal and that belief is traceable to the principal’s
manifestations.”174 Agency by estoppel, on the other hand, applies
when a person “has not made a manifestation” that an actor is an
agent; such a person may nonetheless be liable to anyone “who
justifiably is induced to make a detrimental change in position”
because of a belief in the agency relation, if the defendant has
either “intentionally or carelessly caused such belief,” or having
notice of
772
it has failed to correct the misapprehension.175 All of the

examples and illustrations in the latter section deal with
transactions, not torts, meaning that the Restatement Third of
Agency has now staked out the position that reliance is not
required in the usual tort case, bringing it in line with the
Restatement Second of Torts.176
Whatever their differences on the reliance requirement, most
courts have invoked apparent or ostensible agency when hospitals
farm out some of their routine or “integral”177 functions to
independent physicians.178 Patients who seek medical assistance
in a hospital’s regular, full-time emergency room no doubt believe
they are getting care provided by the hospital. The hospital,
however, may have arranged for physicians’ groups to provide
emergency-room services as independent contractors. In such cases
courts have said that the hospital has created the appearance that
the emergency room is part of the hospital itself and hence that it
is subject to liability for emergency-room malpractice under an
ostensible or apparent agency theory, or at least that the jury could
so find from the evidence.179 The same may be said for other
hospital units, so long as the hospital’s self-presentation leads the
patient reasonably to believe that she is being treated by the
hospital and its own physicians.180 There seems to be no reason to
limit the principle to institutions. For this reason, a physician who
performs medical procedures in his office but uses the services of a
nurse anesthetist who is an independent contractor may be liable
for the nurse’s negligence under the ostensible-agency rule.181
The plaintiff seeking hospital emergency care relies in a loose or
attenuated sense on the hospital’s care, but almost certainly does
not rely in the sense that the patient would have refused care had
she known that the physician providing it was an independent
contractor.182 Nevertheless, this reliance—expectation might be a
more accurate word—has been sufficient in emergency-room cases,
if indeed reliance is required at all in the physical harm cases.
Courts may not apply this looser concept of reliance so readily
in all cases. Suppose the plaintiff slips and falls in a local
McDonald’s restaurant. The local restaurant may be owned by an
independent contractor, who pays for the privilege of using the
McDonald’s name and is obliged to follow the franchisor’s rules but
who is not the servant of the franchisor. Nevertheless, the almost
uniform appearance of such restaurants, the use of trademarks
and the trade name, the standardized food items and promotions
773
might all give customers the impression that a single entity

operates all local restaurants and that the entity is McDonald’s,
the franchisor. To this kind of claim some courts have answered
that the plaintiff did not rely on the franchisor’s care, at least with
respect to the injuries suffered in the particular case,183 although
others have denied the apparent-agency claim on the ground that a
franchisor does not hold out the franchisee as an agent merely by
licensing the trademark to him.184
Everything depends upon an assessment of the facts, so in some
franchise cases the franchisor is liable because he has created the
appearance that the local unit is part of the larger operation.185 If
injury allegedly results from food in a McDonald’s restaurant, for
example, the fact that the plaintiff patronized a local McDonald’s
outlet because she had confidence in McDonald’s food would suffice
to show reliance.186 Perhaps the hospital cases are stronger cases
for vicarious liability, not so much because the holding-out and
reliance are different, but because of public policy concerns with
health care.187
The problem of the borrowed (or loaned) servant arises when
one person directs his servant, as a part of the job, to do work for
another. For example, Company M may rent heavy equipment to
Company B and furnish the servant as operator. If the servant
negligently causes injury to others, the question is whether
vicarious liability should be visited upon M as the general
employer, or upon B as the special employer, or upon both.
Control test. The answer is such cases usually turns on the
familiar control test,188 perhaps coupled with a sense that “short
term cooperation” is not the same thing as a loaned employee.189 If
the general employer retains control, then courts usually say that
he and only he is vicariously liable for the loaned servant’s tort. On
the other hand, if the special employer has the right to direct
details of the borrowed servant’s conduct, then the special
employer is the temporary master and he becomes vicariously
liable. In that case, the general employer is not liable under
respondeat superior rules.
It is quite possible that the general employer will retain control
over some activities of the servant, while the special employer will
have control over others, with liability for an act following control,
wherever it lies.190 Although courts say that what counts is control
over details, the manner, means, and day-to-day work, control is
not a precise concept. In fact, courts may require on-the-spot
control over details in one breath, while in the next permitting an
“inference” of control based on who pays or furnishes equipment of
the employee.191 In addition, there are usually important ways in
which
774
the general employer retains control at the same time that the
special employer has control over some particular acts.192 Control
is thus indeterminate in many cases, so that cases reciting control
elements are necessarily decided on the basis of judicial beliefs
about appropriate outcomes that are not directly related to
control.193 Because facts bearing on control frequently lead to
conflicting conclusions, sometimes courts merely leave the “whose
servant” issue to the jury.194
Treating both lender and borrower as employers. Given
uncertain or conflicting conclusions based upon control, some
courts have simply said that both the general and special
employers should be treated as masters of the worker, or at least
that they could be so treated in particular cases.195 On the surface,
treating both employers as masters offers a common-sense solution
to the problem in one setting. Suppose that Simon is the regular
employee of Company M, but is loaned to Company B to dig a
trench with a backhoe. At B’s direction, Simon digs the trench to a
dangerous depth. The trench later caves in and injures the
plaintiff, who was employed by B to lay pipe in the trench. From
the plaintiff’s point of view the maximum benefits can be obtained
if (a) he can claim workers’ compensation from B, his employer and
(b) sue M in tort for damages. If both M and B are deemed masters
of the loaned servant who dug the ditch, the plaintiff will be able to
assert both claims.196 Those who like this solution may find it less
attractive, however, if M’s servant Simon is injured while digging
the trench for B. If both B and M are masters, each will owe
workers’ compensation benefits, but neither will be liable in tort
under the rule that workers’ compensation is the exclusive remedy
for a covered employee.197 If B negligently caused the injury, the
effect of treating both employers as masters in this setting is that
B acquires an immunity in tort.
Captain-of-the-ship doctrine. One variation on the borrowed-
servant theme occurs in a medical malpractice setting when a
nurse or resident employed by a hospital is directed to assist an
independent surgeon in an operation, and negligently harms the
patient. Some courts have said on such facts that the surgeon was
“captain of the ship” and temporarily had the right to control the
nurse’s work, so should be liable for the negligence of hospital
employees who assisted him,198 or that the hospital would not be
liable at all because its employee had become the surgeon’s
servant.
If this doctrine imputes control to the surgeon as a matter of
law and without regard to the facts, it is more stringent than the
borrowed-servant doctrine because the borrowed-servant doctrine
would treat the surgeon’s control as a question of fact to be
determined case by case. Some courts have rejected the doctrine so
far as it automatically holds the surgeon liable, but have left room
for ordinary applications of the borrowed-servant rule, so that if
the surgeon in fact has control of hospital employees in the
775
operating room, he is vicariously liable, otherwise not.199 When

courts automatically impose liability upon the surgeon for acts of
hospital personnel, the case appears to be one of a nondelegable
duty,200 perhaps grounded upon the special duties undertaken by
those who care for helpless persons201 rather than upon control.
When a court imposes a nondelegable duty as a matter of policy,
the law will be clarified by dropping the “captain” terminology.
Such a nondelegable duty may be less compelling than it was
when hospitals had the protection of blanket charitable immunities
so that they could not be sued for their employees’ negligence. But
immunities have made a strong if incomplete comeback in the form
of damage caps if nothing else.202 In addition, doctors and hospitals
are in a position to contract for indemnity of the surgeon in such
cases, so a nondelegable duty, recognized as such or imposed under
the captain-of-the-ship doctrine, is not without some purpose to the
plaintiff.
________________________________
1 Respondeat superior is not the only kind of vicarious liability.
Conspirators, those who act in concert, partners, and joint enterprisers are
all vicariously liable for the acts of each other committed as part of their
agreed-upon activity. See 2 Dobbs, Hayden & Bublick, The Law of Torts §
435 (2d ed. 2011 & Supp.).
2 Some public employers are also subject to vicarious liability for
employee torts. See, e.g., Mary M. v. City of Los Angeles, 54 Cal.3d 202,
814 P.2d 1341, 285 Cal.Rptr. 99 (1991); Melin-Schilling v. Imm, 149
Wash.App. 588, 205 P.3d 905 (2009). In actions brought under the Federal
Tort Claims Act, however, only the government employer is liable for the
torts committed by the employee within the scope of employment. See §§
335 & 351. The same is true under many state tort claims acts. See, e.g.,
Vaughn v. First Transit, Inc., 346 Or. 128, 206 P.3d 181 (2009). Further,
respondeat superior liability of the employer is unavailable when a
plaintiff seeks damages from a municipality under federal civil rights
laws. Monell v. City of New York, 436 U.S. 658 (1978); see § 22.16.
3 Restatement Third of Agency §§ 2.04 & 7.07(1) (2006). See §§ 31.3
& 31.4.
4 See Ware v. Timmons, 954 So.2d 545 (Ala. 2006). An employee
may be liable for acts of co-employees when they act in concert or in a
conspiracy. See Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988).
5 See Restatement Third of Agency § 1.01 (2006).
6 The Restatement Third of Agency abandons this terminology,
which was used in the Restatement Second of Agency and persists in many
judicial decisions. See Id., § 2.04.
7 See § 31.5.
8 See Oliver Wendell Holmes, Jr., Agency, 4 Harv. L. Rev. 345
(1891). Respondeat superior was probably not a widespread or generalized
rule until the 18th century, however.
9 Restatement Third of Agency § 7.01 (2006) (unless an applicable
statute provides otherwise); Restatement Second of Agency § 343 (1959)
(except where agent is exercising a privilege of the principal and in similar
cases).
10 The employer is given a right of indemnity against the employee,
but the right is seldom exercised. See 2 Dobbs, Hayden & Bublick § 425
(2d ed. 2011 & Supp.).
11 See Ali v. Fisher, 145 S.W.3d 557 (Tenn. 2004).
12 See § 26.11; Restatement Third of Agency § 7.05(1) (2006). Failure
to discipline or terminate an employee who has committed a serious wrong
can be seen as “ratifying” the tort, leading to liability that is said to be “an
alternative theory to respondeat superior.” C.R. v. Tenet Healthcare Corp.,
169 Cal.App.4th 1094, 87 Cal.Rptr.3d 424 (2009) (sexual harassment
case); see also Restatement Third of Agency §§ 4.01, 4.03, 4.06 (2006)
(ratification as a trigger of liability).
13 A plaintiff can pursue both theories, although double recovery is
not permitted. See, e.g., MV Transportation v. Allgeier, 433 S.W.3d 324
(Ky. 2014). Some states hold that a plaintiff cannot pursue a primary-
liability claim against the employer where it has admitted vicarious
liability. See Diaz v. Carcamo, 51 Cal. 4th 1148, 126 Cal. Rptr. 3d 443, 253
P.3d 535 (2011).
14 See, e.g., National Union Fire Ins. Co. of Pittsburgh, Pa. v.
Wuerth, 122 Ohio St.3d 594, 913 N.E.2d 939 (2009) (“[A] principal is
vicariously liable only when an agent could be held directly liable….”).
Relatedly, a settlement with the agent is usually held to extinguish the
principal’s liability as well. See Doe v. City of Chicago, 360 F.3d 667 (7th
Cir. 2004) (Ill. law).
15 Restatement Third of Agency § 7.07, cmt. c (2006) (“[C]onduct is
not outside the scope of employment merely because an employee
disregards the employer’s instructions.”).
16 See South Carolina Ins. Co. v. James C. Greene and Co., 290 S.C.
171, 348 S.E.2d 617 (Ct. App. 1986) (recounting historical development).
17 National Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 658,
584 P.2d 689, 691 (1978) (“Nevada’s policy rationale for the doctrine of
respondeat superior is grounded on the theory of control rather than on
the entrepreneur theory.”). See also Restatement Third of Agency § 1.01
(2006) (defining agency as a relationship in which a person is “subject to
the principal’s control”) & § 7.07(2) (defining “scope of employment” as
turning in part on “the employer’s control”).
18 Mary M. v. City of Los Angeles, 54 Cal.3d 202, 814 P.2d 1341, 285
Cal.Rptr. 99 (1991).
19 Clarence Morris, The Torts of an Independent Contractor, 29 Ill.
L. Rev. 339 (1935). See also Restatement Third of Agency § 2.04, cmt. b
(2006) (“Respondeat superior creates an incentive for principals to choose
employees and structure work within the organization so as to reduce the
incidence of tortious conduct.”).
20 See Alan Q. Sykes, The Economics of Vicarious Liability, 93 Yale
L.J. 1231 (1984); see also Alan Q. Sykes, The Boundaries of Vicarious
Liability: an Economic Analysis of the Scope of Employment Rule and
Related Legal Doctrines, 101 Harv. L. Rev. 563 (1988) (emphasizing
inefficiencies arising out of the agent’s insolvency and those arising from
the cost of contracting between principal and agent).
21 Young B. Smith, Frolic and Detour, 23 Colum. L. Rev. 444, 456
(1923); see also George L. Priest, The Invention of Enterprise Liability: A
Critical History of the Intellectual Foundations of Modern Tort Law, 14 J.
Leg. Stud. 461, 47–83 (1985).
22 See Fruit v. Schreiner, 502 P.2d 133 (Alaska 1972); Warren A.
Seavey, Speculations as to “Respondeat Superior,” Harvard Legal Essays
in Honor of Joseph Henry Beale and Samuel Williston 433, 450–451
(1934).
23 See Gregory C. Keating, The Idea of Fairness in the Law of
Enterprise Liability, 95 Mich. L. Rev. 1266 (1997); see also Ira S. Bushey
& Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968) (Friendly, J.)
(“[A] business enterprise cannot justly disclaim responsibility for accidents
which may fairly be said to be characteristic of its activities.”).
24 E.g., Fahrendorff v. North Homes, Inc., 597 N.W.2d 905 (Minn.
1999) (counselor’s sexual contact with group home resident; expert’s view
that “inappropriate sexual contact or abuse of power in these situations,
although infrequent, is a well-known hazard in this field” showed that
such abuse was foreseeable risk of the business, which is sufficient for
vicarious liability).
25 Hughes v. Doe, 273 Va. 45, 639 S.E.2d 302 (2007); Cohen v.
Alliant Enterprises, Inc., 60 S.W.3d 536 (Ky. 2001); see also Restatement
Second of Agency § 180 (1959). The rule is otherwise when the employee’s
defenses goes to the merits and justifies his actions, as in the case of self-
defense.
26 See Johnson v. LeBonheur Children’s Medical Ctr., 74 S.W.3d 338
(Tenn. 2002) (narrowly distinguishing cases that might be understood as
contrary to the principle); Restatement Second of Agency § 217 (1959)
(noting some contrary authority, but describing the rule stated as a trend).
27 E.g., Carter v. Reynolds, 175 N.J. 402, 815 A.2d 460 (2003);
O’Toole v. Carr, 175 N.J. 421, 815 A.2d 471 (2003).
28 See Restatement Third of Agency §§ 1.01 & 7.07(3)(a) (2006);
Restatement Second of Agency §§ 1 & 2 (1959); Kavanagh v. Trustees of
Boston Univ., 440 Mass. 195, 795 N.E.2d 1170 (2003) (student at
university is neither a “servant” nor an employee of the university, no
vicarious liability); Glover v. Boy Scouts of America, 923 P.2d 1383 (Utah
1996) (scoutmaster was not an employee of the Scout organization, no
vicarious liability).
29 See § 26.9.
30 E.g., Austin v. Kaness, 950 P.2d 561 (Wyo. 1997) (adult son
feeding cats while parents were away was not agent or servant of parents).
31 See § 31.5.
32 Restatement Third of Agency §§ 2.04 & 7.07 (2006).
33 Restatement Second of Agency § 228(1)(c) (1959).
34 Restatement Third of Agency § 7.07(2) (2006) (“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.”).
35 See Engler v. Gulf Interstate Engineering, Inc., 230 Ariz. 55, 280
P.3d 599 (2012) (expressly adopting the Restatement Third; driver was not
advancing the employer’s business purpose at the time he caused a traffic
accident); Adames v. Sheahan, 233 Ill.2d 276, 909 N.E.2d 742, 330 Ill.Dec.
720 (2009) (requiring that an employee’s act “was motivated, at least in
part, by a desire to serve his master,” applying the Restatement Second);
Mid-States Plastics, Inc. v. Estate of Bryant, 245 S.W.3d 728 (Ky. 2008)
(for employer to be held vicariously liable for employee’s tort committed
against guest who had been invited on business trip by employee, guest’s
presence had to be for the purpose of furthering the employer’s work);
Auer v. Paliath, 140 Ohio St.3d 276, 17 N.E.3d 561 (2014) (key question is
whether employee “acted or believed himself to have acted, at least in part,
in his employer’s interest”).
36 See, e.g., Frieler v. Carlson Marketing Group, Inc., 751 N.W.2d
558 (Minn. 2008) (employee’s act must be foreseeable, related to, and
connected with acts otherwise within the scope of employment); Barnett v.
Clark, 889 N.E.2d 281 (Ind. 2008) (employee’s act must either be
“incidental to the conduct authorized,” or it must to an appreciable extent,
further the employer’s business); Gina Chin & Assoc. v. First Union Bank,
260 Va. 533, 537 S.E.2d 573 (2000) (“[T]he motive of the employee in
committing the act complained of is not determinative…. Rather, the issue
is whether the service itself, in which the tortious act was done, was
within the ordinary course of such business.”); Doe v. Samaritan
Counseling Center, 791 P.2d 344 (Alaska 1990); Marston v. Minneapolis
Clinic of Psychiatry and Neurology, 329 N.W.2d 306 (Minn. 1982).
37 See, e.g., Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237 S.W.3d
87 (2006) (employee must be “carrying out the object and purpose of the
enterprise”); Baker v. Saint Francis Hosp., 126 P.3d 602 (Okla. 2005)
(employee’s act must be incidental to and done in furtherance of the
business of the employer).
38 Costos v. Coconut Island Corp., 137 F.3d 46 (1st Cir. 1998)
(employer vicariously liable where manager was aided in accomplishing
rape on plaintiff by the agency relationship); Doe v. Forrest, 853 A.2d 48
(Vt. 2004) (employer could be vicariously liable if the plaintiff can show
that the employee was aided in accomplishing his intentional sexual
assault on her by the existence of the employment relationship);
Restatement Second of Agency § 219(2)(d) (1959). The Restatement Third
of Agency rejects the Second’s § 219(2)(d), as have some courts. See Zsigo
v. Hurley Medical Ctr., 475 Mich. 215, 716 N.W.2d 220 (2006).
39 Riviello v. Waldron, 47 N.Y.2d 297, 391 N.E.2d 1278,418 N.Y.S.2d
300 (1979).
40 Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 719 P.2d 676,
227 Cal.Rptr. 106 (1986).
41 Because factual details count, and because the facts require
reasonableness evaluations, summary judgment is often inappropriate on
the scope of employment issue. See Pyne v. Witmer, 129 Ill.2d 351, 543
N.E.2d 1304, 135 Ill.Dec. 557 (1989).
42 See, e.g., Bagent v. Blessing Care Corp., 224 Ill.2d 154, 308
Ill.Dec. 782 (2007); Baker v. Saint Francis Hosp., 126 P.3d 602 (Okla.
2005); Plummer v. Center Psychiatrists, Ltd., 252 Va. 233, 476 S.E.2d 172
(1996).
43 Restatement Third of Agency § 707, cmt. e (2006).
44 E.g., Hamm v. United States, 483 F.3d 135 (2d Cir. 2007) (FTCA
case); Faul v. Jelco, Inc., 122 Ariz. 490, 595 P.2d 1035 (Ct. App. 1979);
Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012).
45 Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956, 88 Cal.Rptr. 188,
471 P.2d 988 (1970). See also Bowyer v. Loftus, 346 Mont. 182, 194 P.3d 92
(2008) (no vicarious liability where employee was not being compensated
for his mileage during trip).
46 See Carroll Air Sys., Inc. v. Greenbaum, 629 So.2d 914 (Fla. Dist.
Ct. App. 1993); Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11 (Minn.
1979).
47 E.g., Osborne v. Lyles, 63 Ohio St.3d 326, 587 N.E.2d 825 (1992);
see Alexander C. Black, Annotation, Liability of Municipal Corporation or
Other Governmental Entity For Injury or Death Caused by Action or
Inaction of Off-Duty Police Officer, 36 A.L.R.5th 1 (1996).
48 See Russell v. Noullet, 721 So.2d 868 (La. 1998) (attack by off-duty
officer).
49 See Brown v. Dillard’s, Inc., 289 S.W.3d 340 (Tex. App. 2009);
Bauldock v. Davco Food, Inc., 622 A.2d 28 (D.C. 1993).
50 Ambling Management Co. v. Miller, 295 Ga. 758, 764 S.E.2d 127
(2014); Lovelace v. Anderson, 785 A.2d 726 (Md. 2001); White v. Revco
Discount Drug Centers, Inc., 33 S.W.3d 713 (Tenn. 2001).
51 See Restatement Third of Agency § 7.07, cmt. e & Illus. 12 to 14
(2006).
52 See Fackrell v. Marshall, 490 F.3d 997 (8th Cir. 2007) (Mo. law);
Carter v. Reynolds, 175 N.J. 402, 815 A.2d 460 (2003).
53 See Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d
1148 (4th Cir. 1997).
54 See Jeewarat v. Warner Bros. Entertainment, Inc., 177
Cal.App.4th 427, 98 Cal.Rptr.3d 837 (2009) (fact question as to whether
employee was still in the scope of employment when he caused a traffic
accident while returning home from an out-of-town business trip).
55 See Ahlstrom v. Salt Lake City Corp., 73 P.3d 315 (Utah 2003).
56 See Young B. Smith, Frolic & Detour, 23 Colum. L. Rev. 444, 716,
722 ff. (1923).
57 Pyne v. Witmer, 129 Ill.2d 351, 543 N.E.2d 1304, 135 Ill.Dec. 557
(1989).
58 The terminology of “frolic and detour” comes from Joel v.
Morrison, 172 Eng. Rep. 1338 (1834), in which the court said that where
“servants, being on their master’s business, took a detour to call upon a
friend, the master will be responsible … but if he was going on a frolic of
his own, without being at all on his master’s business, the master will not
be liable.”
59 Prince v. Atchison, Topeka & Santa Fe Ry. Co., 76 Ill.App.3d 898,
32 Ill.Dec. 362, 395 N.E.2d 592 (1979); Fiocco v. Carver, 137 N.E. 309
(N.Y. 1922); Restatement Third of Agency § 7.07, cmt. e (2006);
Restatement Second of Agency § 237 (1959).
60 E.g., Pyne v. Witmer, 129 Ill.2d 351, 543 N.E.2d 1304, 135 Ill.Dec.
557 (1989); Sheffer v. Carolina Forge Co., 306 P.3d 544 (Okla. 2013).
61 See Restatement Second of Agency § 229, Ill. 1 (1959).
62 Restatement Third of Agency § 7.07, cmt. d (2006).
63 See Richard v. Hall, 874 So.2d 131 (La. 2004) (hunting
opportunities made available by employer, but not involved in soliciting
business or the like; employer not liable for accidental death caused by
employee’s discharge of gun); Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio
St. 513, 92 N.E.2d 677 (1950) (even though employer paid green fees and
provided a shirt for employees’ participation in a golf league organized by
YMCA, golfer was not within scope of employment when he hooked a ball
into the plaintiff).
64 Hudson v. Muller, 653 So.2d 942 (Ala. 1995).
65 Levine v. Peoples Broadcasting Corp., 149 W.Va. 256, 140 S.E.2d
438 (1965).
66 Melin-Schilling v. Imm, 149 Wash.App. 588, 205 P.3d 905 (2009)
(driving back from coffee break).
67 Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11 (Minn. 1979).
68 Gutierrez de Gutierrez de Martinez v. Drug Enforcement Admin.,
111 F.3d 1148 (4th Cir. 1997).
69 E.g., Hansen v. Board of Trustees of Hamilton Southeastern
School Corp., 551 F.3d 599 (7th Cir. 2008) (teacher’s sexual misconduct
with student); Frieler v. Carlson Marketing Group, 751 N.W.2d 588 (Minn.
2008) (supervisor’s sexual harassment, accompanied by assault and
battery, of fellow employee); Barnett v. Clark, 889 N.E.2d 281 (Ind. 2008)
(deputy trustee’s rape and false imprisonment of applicant for public
assistance); Doe v. Newbury Bible Church, 182 Vt. 174, 933 A.2d 196
(2007) (pastor’s sexual misconduct); Zsigo v. Hurley Medical Ctr., 475
Mich. 215, 716 N.W.2d 200 (2006) (employee’s sexual assault on patient);
Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997) (ultrasound
technician sexually assaulted a patient while performing a gallbladder
examination); Baumeister v. Plunkett, 673 So.2d 994 (La. 1996) (hospital
supervisor sexually assaulted clinical technician in nurse’s lounge of
hospital during business hours); Lisa M. v. Henry Mayo Newhall Mem.
Hosp., 12 Cal.4th 291, 48 Cal.Rptr. 510, 907 P.2d 358 (1995) (ultrasound
technician employed by hospital extended the examination in a sexual
way).
70 See § 31.3.
71 Restatement Third of Agency § 7.07 (2006); Restatement Second of
Agency § 228(1)(c) (1959).
72 See, e.g., Nichols v. Land Transport Corp., 223 F.3d 21 (1st Cir.
2000) (truck driver stabbed motorist in “road rage” incident; no vicarious
liability because the act was not motivated by a purpose to serve the
master); Davis v. Devereux Foundation, 209 N.J. 269, 37 A.3d 469 (2012)
(employee of home for developmentally disabled poured hot water over
resident; conduct was “clearly outside the scope of her employment”
because “it was not by any measure ‘actuated’ by a purpose to serve” the
employer).
73 Patterson v. Blair, 172 S.W.3d 361 (Ky. 2005).
74 See Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d
Cir. 1968); see also Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5
(1946); Baumeister v. Plunkett, 673 So.2d 994, 996 (La. 1996).
75 Plummer v. Center Psychiatrists, Ltd. 252 Va. 233, 476 S.E.2d 172
(1996) (clinical psychologist employed by defendant had sex with patient;
court rejected any test based on “motive of the employee”); see also Phillips
v. Restaurant Mgmt. of Carolina, L.P., 146 N.C.App. 203, 552 S.E.2d 686
(2001) (restaurant was subject to vicarious liability for customer’s distress
when the customer discovered that a restaurant employee had spat in his
food).
76 Mason v. Sportsman’s Pub, 305 N.J.Super. 482, 702 A.2d 1301
(1997).
77 Kirlin v. Halverson, 758 N.W.2d 436 (S.D. 2008).
78 Baker v. Saint Francis Hosp., 126 P.3d 602 (Okla. 2005).
79 Daugherty v. Allee’s Sports Bar & Grill, 260 S.W.3d 869 (Mo.App.
2008).
80 Brown v. Mayor, 167 Md.App. 306, 892 A.2d 1173 (2006)
(uniformed police officer not acting within the scope of employment when
he murdered a man he suspected of having an affair with his wife). See
also Barnett v. Clark, 889 N.E.2d 281 (Ind. 2008) (employee’s rape and
false imprisonment against client of employer “were not an extension of
authorized physical contact” and “not incidental to nor sufficiently
associated with [his] authorized duties”); Frieler v. Carlson Marketing
Group, 751 N.W.2d 588 (Minn. 2008) (even under a general “foreseeability”
test, employer not vicariously liable for supervisor’s assault, battery and
sexual harassment of another employee, because such acts were entirely
personal).
81 Doe v. Samaritan Counseling Ctr., 791 P.2d 344 (Alaska 1990)
(therapist-minister); Marston v. Minneapolis Clinic of Psychiatry and
Neurology, Ltd., 329 N.W.2d 306 (Minn. 1982) (psychologist); Fearing v.
Bucher, 328 Or. 367, 977 P.2d 1163 (1999) (priest acting as youth pastor,
friend and confessor to minor plaintiff and his family; motive to serve
employer in actual act of sexual assault not required if priest’s general
motives included, initially, a desire to serve the Archdiocese); Lourim v.
Swensen, 328 Or. 380, 977 P.2d 1157 (1999) (Boy Scout leader); Plummer
v. Center Psychiatrists, Ltd. 252 Va. 233, 476 S.E.2d 172 (1996)
(psychiatrist; scope of employment a jury question). Contra, Birkner v.
Salt Lake County, 771 P.2d 1053 (Utah 1989) (therapist’s sexual
misconduct with patient in mental health facility not within scope of
employment).
82 Mary M. v. City of Los Angeles, 54 Cal.3d 202, 285 Cal.Rptr. 99,
814 P.2d 1341 (1991); but cf. Lisa M. v. Henry Mayo Newhall Mem. Hosp.,
12 Cal. 4th 291, 48 Cal. Rptr. 510, 907 P.2d 358 (1995) (the employment
must generate not only the risk of sexual misbehavior but its “motivating
emotions” as well).
83 Doe v. Forrest, 176 Vt. 476, 853 A.2d 48 (2004); but cf. Cockrell v.
Pearl River Valley Water Supply Dist., 865 So.2d 357 (Miss. 2004) (patrol
officer’s attempt to kiss motorist was outside the scope of employment
because it was not in furtherance of the employer’s business; no discussion
of risks associated with the job).
84 See Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976) (truck driver
delivering a mattress got into dispute with customer about whether he
was to carry it into the apartment, escalating into a rape of the customer).
85 Costos v. Coconut Island Corp., 137 F.3d 46 (1st Cir. 1998) (rape of
guest by manager of inn).
86 Tall v. Board of School Comn’rs of Baltimore City, 120 Md. App.
236, 706 A.2d 659 (1998).
87 P.L. v. Aubert, 545 N.W.2d 666 (Minn. 1996).
88 Doe v. Newbury Bible Church, 182 Vt. 174, 933 A.2d 196 (2007)
(stressing that “holding a small church and school vicariously liable” for a
pastor’s sexual misconduct would not further the policies behind vicarious
liability); Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988) (priest,
encouraged by church to engage in marriage counseling, also engaged in
sexual activity with one of the marital partners he was counseling); Byrd
v. Faber, 57 Ohio St. 3d 56, 565 N.E.2d 584, 5 A.L.R.5th 1115 (1991)
(similar, rejecting vicarious liability unless the church had hired Faber to
rape, seduce or otherwise physically assault congregants).
89 See § 13.5.
90 See § 19.1.
91 See Connell v. Call-A-Cab, Inc., 937 So.2d 71 (Ala. 2006); St.
Michelle v. Catania, 252 Md. 647, 250 A.2d 874 (1969); Gilmore v. Acme
Taxi Co., 349 Mass. 651, 212 N.E. 235 (1965); Maryland Cas. Co. v. Baker,
304 Ky. 296, 200 S.W.2d 757 (1946); Restatement Third of Agency § 7.06
(2006) (nondelegable duty).
92 Stropes v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547
N.E.2d 244 (Ind. 1989).
93 Id.
94 See, e.g., Patterson v. T.L. Wallace Construction, Inc., 133 So.3d
325 (Miss. 2013); Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006);
Sanchez v. Medicorp Health Sys., 270 Va. 299, 618 S.E.2d 331 (2005);
Fisher v. Townsends, Inc., 695 A.2d 53 (Del. 1997).
95 The two major exceptions: when the employer owes a
nondelegable duty of care, see § 31.6, and when the employer creates the
appearance that the independent contractor is acting as his servant, see §
31.7.
96 The employer may be liable for his own negligence that causes
harm to the independent contractor. See, e.g., McKown v. Wal-Mart
Stores, Inc., 27 Cal.4th 219, 115 Cal.Rptr.2d 868, 38 P.3d 1094 (2002);
Tafoya v. Rael, 145 N.M. 4, 193 P.3d 551 (2008).
97 E.g., Mavrikidis v. Petullo, 153 N.J. 117, 707 A.2d 977 (1998);
Crocker v. Morales-Santana, 854 N.W.2d 663 (S.D. 2014). Yet some
employees who are free to act independently of the employer’s control over
details of their work nevertheless remain in the category of servant rather
than independent contractor. See Dias v. Brigham Med. Assocs., Inc., 438
Mass. 317,780 N.E.2d 447 (2002) (employer of physician may be
vicariously liable for torts committed by physician in the scope of his
employment).
98 See Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).
99 See, e.g., Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill. App. 3d
1051, 349 Ill. Dec. 269, 946 N.E.2d 463 (2011); McDonald v. Hampton
Training School for Nurses, 254 Va. 79, 486 S.E.2d 299 (Va. 1997). If the
employer actually exercises control, that fact may be good evidence that he
has a right or power to do so.
100 E.g., Mavrikidis v. Petullo, 153 N.J. 117, 707 A.2d 977 (1998);
Walderbach v. Archdiocese of Dubuque, Inc., 730 N.W.2d 198 (Iowa 2007);
Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997).
101 Restatement Second of Agency § 220 (1959); Restatement Third of
Agency § 7.07, cmt. f (2006).
102 See, e.g., McDonald v. Hampton Training School for Nurses, 254
Va. 79, 486 S.E.2d 299 (Va. 1997).
103 See, e.g., Shaw v. C.B. & E., Inc., 630 So.2d 401 (Ala. 1993).
104 Fisher v. Townsends, Inc., 695 A.2d 53 (Del. 1997).
105 And hospitals have been surprised to find that they are
nevertheless liable under doctrines of apparent agency or the like. See §
31.7.
106 District of Columbia v. Hampton, 666 A.2d 30 (D.C. 1995).
107 Miami Herald Publishing Co. v. Kendall, 88 So.2d 276 (Fla. 1956);
contra, Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 794 P.2d 138
(1990) (analyzing factors in detail); Zirkle v. Winkler, 214 W.Va. 19, 585
S.E.2d 19 (2003) (concluding that the weight of authority in newspaper
delivery cases treats the status of the employee as a jury issue); see Mary
J. Cavins, Annotation, Newspaper Boy or Other News Carrier as
Independent Contractor or Employee for Purposes of Respondeat Superior,
55 A.L.R.3d 1216 (1974).
108 E.g., Leaf River Forest Products, Inc. v. Harrison, 392 So.2d 1138
(Miss. 1981) (that a logger financed his own operation, used his own
equipment, hired and fired his own workers, and was paid by volume
produced, not by the hour, meant that there was no rational basis for
finding a master-servant relationship).
109 On apparent agency or agency by estoppel, see § 31.7.
110 Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 794 P.2d 138
(1990); Fisher v. Townsends, Inc., 695 A.2d 53 (Del. 1997).
111 See Ciup v. Chevron U.S.A., Inc., 122 N.M. 537, 928 P.2d 263
(1996) (service station); Cislaw v. Southland Corp., 4 Cal.App.4th 1284, 6
Cal.Rptr.2d 386 (1992) (convenience store).
112 E.g., Jamison v. Morris, 385 S.C. 215, 684 S.E.2d 168 (2009);
Miller v. Sinclair Ref. Co., 268 F.2d 114 (5th Cir. 1959).
113 Vandemark v. McDonald’s Corp., 153 N.H. 753, 904 A.2d 627
(2006); Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala. 2003);
O’Banner v. McDonald’s Corp., 173 Ill.2d 208, 218 Ill.Dec. 910, 670 N.E.2d
632 (1996); Hoffnagle v. McDonald’s Corp., 522 N.W.2d 808 (Iowa 1994).
114 E.g., Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315,
634 A.2d 622 (1993) (hotel). Cf. Smith v. Delta Tau Delta, Inc., 9 N.E.3d
154 (Ind. 2014) (national fraternity not vicariously liable for torts of local
fraternity).
115 See Hosein v. Checker Taxi Co., Inc., 95 Ill. App. 3d 150, 50
Ill.Dec. 460, 419 N.E.2d 568 (1981); Thomas v. Checker Cab Co., 66
Mich.App. 152, 238 N.W.2d 558 (1975); R. L. Martyn, Annotation, Owning,
Leasing, or Otherwise Engaging in Business of Furnishing Services for
Taxicabs as Basis of Tort Liability for Acts of Taxi Driver under
Respondeat Superior Doctrine, 8 A.L.R.3d 818 (1967).
116 J.M. v. Shell Oil Co., 922 S.W.2d 759, 764 (Mo. 1996).
117 See Restatement Third of Agency § 7.06 (2006) (“A principal
required by contract or otherwise by law to protect another cannot avoid
liability by delegating performance of the duty….”).
118 Gazo v. City of Stamford, 255 Conn. 245, 765 A.2d 505 (2001).
119 Haseman v. Orman, 680 N.E.2d 531, 535 (Ind. 1997).
120 Miller v. Westcor Ltd. P’ship, 171 Ariz. 387, 831 P.2d 386 (Ct. App.
1992).
121 Restatement Second of Torts § 427 (1965); see Francis M.
Dougherty, Annotation, Liability of Employer With Regard to Inherently
Dangerous Work For Injuries to Employees of Independent Contractor, 34
A.L.R.4th 914 (1981). Nuisance is a related idea. See Mavrikidis v. Petullo,
153 N.J. 117, 707 A.2d 977 (1998).
122 Fike v. Peace, 964 So.2d 651 (Ala. 2007); King v. Lens Creek Ltd.
Partnership, 199 W.Va. 136, 483 S.E.2d 265 (1996).
123 Boroughs v. Joiner, 337 So.2d 340 (Ala. 1976); see also
Brandenburg v. Briarwood Forestry Services, 354 Wis.2d 413, 847 N.W.2d
395 (2014) (spraying herbicide on trees).
124 Restatement Second of Torts § 427, cmt. c (1965). If the contractor
is carrying out an abnormally dangerous activity for which he would be
strictly liable, see § 32.6, the enterprise, too, may be strictly liable for
harms resulting from the abnormally dangerous character of the
operation. Bahrle v. Exxon Corp., 145 N.J. 144, 156, 678 A.2d 225, 231
(1996); Saiz v. Belen Sch. Dist., 113 N.M. 387, 827 P.2d 102 (1992);
Restatement Second of Torts § 427A (1965).
125 Miller v. Westcor Ltd. Partnership, 171 Ariz. 387, 831 P.2d 386
(1991); cf. District of Columbia v. Howell, 607 A.2d 501 (D.C. 1992) (school
chemistry experiment that went horribly wrong).
126 Beck v. Woodward Affiliates, 226 A.D.2d 328, 640 N.Y.S.2d 205
(1996).
127 Saiz v. Belen School Dist., 113 N.M. 387, 827 P.2d 102 (1992).
128 Pusey v. Bator, 94 Ohio St. 3d 275, 762 N.E.2d 968 (2002)
(merging inherent danger and peculiar risk conceptions: “Work is
inherently dangerous when it creates a peculiar risk of harm to others
unless special precautions are taken.”).
129 American Home Assurance Co. v. National R.R. Passenger Corp.,
908 So.2d 459 (Fla. 2005).
130 E.g., Cunnington v. Gaub, 335 Mont. 296, 153 P.3d 1 (2007). See
Restatement Second of Torts §§ 413 & 416 (1965). Inherent danger and
peculiar risk represent the same fundamental idea and courts often treat
them interchangeably.
131 See Huddleston v. Union Rural Elec. Ass’n, 841 P.2d 282, 290
(Colo. 1992) (danger risked by the activity must be “different in kind from
the ordinary risks that commonly confront persons in the community”);
Saiz v. Belen School Dist., 113 N.M. 387, 396, 827 P.2d 102, 111 (1992)
(risk must be normal to the work done but “different from one to which
persons commonly are subjected by ordinary forms of negligence”).
132 Falls v. Scott, 249 Kan. 54, 815 P.2d 1104 (1991).
133 Benesh v. New Era, Inc., 207 Ill. App. 3d 1049, 566 N.E.2d 779,
152 Ill.Dec. 902 (1991).
134 LaCount v. Hensel Phelps Const. Co., 79 Cal.App.3d 754, 145
Cal.Rptr. 244 (1978).
135 Majestic Realty Associates, Inc. v. Toti Contracting Co., 30 N.J.
425, 153 A.2d 321 (1959).
136 McLean v. Kirby Co., a Div. of Scott Fetzer Co., 490 N.W.2d 229
(N.D. 1992); Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998).
137 Traudt v. Potomac Elec. Power Co., 692 A.2d 1326 (D.C. 1997);
Gordon v. Sanders, 692 So.2d 939 (Fla. Dist. Ct. App. 1997); Restatement
138 Restatement Second of Torts § 427B (1965).
139 Haseman v. Orman, 680 N.E.2d 531 (Ind. 1997).
140 Hester v. Bandy, 627 So.2d 833, 843 (Miss. 1993) (repossession
from a debtor).
141 Restatement Second of Torts §§ 417 cmt. a & 418 (1965).
142 Id. §§ 419 to 421.
143 Otero v. Jordon Restaurant Enters., 119 N.M. 721, 895 P.2d 243
(Ct. App. 1995); Restatement Second of Torts § 422 (1965).
144 Restatement Second of Torts § 425 (1965). Similarly, one who uses
a contractor to maintain safety of a chattel supplied to others in the course
of business has a nondelegable duty. Id.
145 Id. Ill. 2.
147 See, e.g., Sanatass v. Consolidated Investing Co., 10 N.Y.3d 333,
887 N.E.2d 1125, 858 N.Y.S.2d 67 (2008); Kennerly v. Shell Oil Co., 13
Ill.2d 431, 150 N.E.2d 134 (1958); Evard v. Southern California Edison,
153 Cal.App.4th 137, 62 Cal.Rptr.3d 479 (2007).
148 E.g., Miller v. Lambert, 196 W.Va. 24, 467 S.E.2d 165 (1995).
149 MBank El Paso v. Sanchez, 836 S.W.2d 151 (Tex. 1992); accord,
Hester v. Bandy, 627 So.2d 833 (Miss. 1993).
150 Gordon v. Sanders, 692 So.2d 939 (Fla. Dist. Ct. App. 1997).
151 See Restatement Second of Torts § 424 (1965) (requiring only that
the statute impose “specified safeguards or precautions for the safety of
others”).
152 E.g., Pelletier v. Sordona/Skanska Const. Co., 286 Conn. 563, 945
A.2d 388 (2008) (no nondelegable duty under state Building Code to
inspect steel welds); Midland Oil Co. v. Thigpen, 4 F.2d 85, 53 A.L.R. 311
(8th Cir. 1925) (no nondelegable duty created by state and federal clean-
water regulations).
153 Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003 (1944) (as a
joke, independent contractor’s employee attached dynamite cap to car
engine expecting it to explode when the car was started; it didn’t, but it
exploded when an auto mechanic opened the hood; because the injury was
collateral to the contract, the prime contractor was not liable for these acts
of the independent contractor’s employees).
155 See Clarence Morris, The Torts of an Independent Contractor, 29
Ill. L. Rev. 339, 352 (1935).
156 Miller v. Westcor Ltd. Partnership, 171 Ariz. 387, 831 P.2d 386
(Ct. App. 1992).
157 Cf. Barbera v. Brod-Dugan Co., 770 S.W.2d 318 (Mo. Ct. App.
1989) (great heights made work dangerous, but fall was due to defective
equipment, not to special danger of heights).
158 See Otero v. Jordon Restaurant Enterprises, 119 N.M. 721, 895
P.2d 243 (Ct. App. 1995). Collateral negligence is also described as casual
negligence or negligence in operational detail rather than in plan or
general method of work. The fundamental idea, however, is that the
landowner’s responsibility extends only to features that are characteristic
of the work for which he retained the contractor. See Restatement Second
of Torts § 426, cmt. a (1965).
159 See e.g., Puckrein v. ATI Transport, Inc., 186 N.J. 563, 879 A.2d
1034 (2006) (retaining an independent contractor who lacked the proper
permits to perform the job legally); Madison by Bryant v. Babcock Ctr.,
Inc., 371 S.C. 123, 628 S.E.2d 650 (2006) (liability for negligence in
choosing contractor or in failing to deal with contractor once the danger it
created was discovered); see Restatement Third of Torts (Liability for
160 See Hammond v. Bechtel Inc., 606 P.2d 1269 (Alaska 1980); see
also Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001).
161 Hooker v. Dep’t of Transportation, 27 Cal. 4th 198, 38 P.3d 1081,
115 Cal. Rptr. 2d 853 (2002).
162 See, e.g., Restatement Second of Torts § 429 (1965); Restatement
Second of Agency § 267 (1959); Restatement Third of Agency § 2.03 (2006).
The rule is well-established but some courts have rejected it. See, e.g.,
Sanchez v. Medicorp Health Sys., 270 Va. 299, 618 S.E.2d 331 (2005).
163 See Restatement Third of Agency § 2.05 (2006).
164 Boren v. Weeks, 251 S.W.3d 426 (Tenn. 2008); Wilkins v.
Marshalltown Medical and Surgical Center, 758 N.W.2d 232 (Iowa 2008);
Burless v. West Virginia University Hospitals, Inc., 215 W.Va. 765, 601
S.E.2d 85 (2004).
165 Independent Fire Ins. Co. v. Able Moving and Storage Co., 650
So.2d 750 (La. 1995).
2011 & Supp.).
167 Restatement Second of Agency § 267 (1959).
169 Jackson v. Power, 743 P.2d 1376 (Alaska 1987). See also Fletcher
v. South Peninsula Hosp., 71 P.3d 833 (Alaska 2003) (applying Jackson);
Osborne v. Adams, 346 S.C. 4, 550 S.E.2d 319 (2001).
170 The Restatement Second of Agency actually requires only an
attenuated kind of reliance, as opposed to the kind of but-for reliance the
term itself would imply (i.e., that the plaintiff would not have used the
services but for the fact that it was the defendant’s service). Both
Restatement Seconds, then, which have been widely cited for years on
these points, are likely to call for the same result in many tort cases.
171 Baptist Memorial Hosp. System v. Sampson, 969 S.W.2d 945 (Tex.
1998).
172 Restatement Third of Agency § 2.03 (2006).
173 Id. § 2.05.
174 Id. § 2.03.
175 Id. § 2.05.
176 See, applying the rule, Jones v. HealthSouth Treasure Valley
Hosp., 147 Idaho 109, 206 P.3d 473 (2009) (hospital could be vicariously
liable for the torts of an independent contractor based on apparent
authority without any showing of reliance).
177 Integral services of the hospital may include radiology and
pathology as well as emergency department services. See Jennison v.
Providence St. Vincent Medical Ctr., 174 Or. App. 219, 25 P.3d 358 (2001).
178 Distinguish “staff physicians” who merely have permission to use
hospital facilities but who are retained in the first instance by the patient.
179 Jackson v. Power, 743 P.2d 1376 (Alaska 1987) (refined and
codified by Alaska Stats. § 09.65.096); Clark v. Southview Hosp. & Family
Health Ctr., 68 Ohio St. 3d 435, 628 N.E.2d 46, 58 A.L.R. 5th 929 (1994);
Jennison v. Providence St. Vincent Medical Ctr., 174 Or. App. 219, 25 P.3d
358 (2001).
180 See Osborne v. Adams, 346 S.C. 4, 550 S.E.2d 319 (2001) (NICU or
neonatal intensive care unit presented as part of hospital’s excellent
facilities).
181 Parker v. Freilich, 803 A.2d 738 (Pa. Super. 2002).
182 This is essentially the analysis of the issue in York v. Rush-
Presbyterian-St. Luke’s Medical Ctr., 222 Ill.2d 147, 854 N.E.2d 635, 305
Ill.Dec. 43 (2006). The court, looking at earlier Illinois precedent,
concluded that the “reliance” element of apparent authority could be
satisfied by a showing that “the plaintiff relies upon the hospital to provide
medical care, rather than upon a specific physician.” (Emphasis in
original.)
183 O’Banner v. McDonald’s Corporation, 173 Ill.2d 208, 218 Ill.Dec.
910, 670 N.E.2d 632 (1996).
184 Mobil Oil Corp. v. Bransford, 648 So.2d 119 (Fla. 1995) (service
station); Smith v. Foodmaker, Inc., 928 S.W.2d 683 (Tex. App. 1996) (fast-
food restaurant).
185 Crinkley v. Holiday Inns, Inc., 844 F.2d 156 (4th Cir. 1988) (motel
bandits at a Holiday Inn franchise, reliance found in part because guest
had specifically sought out Holiday Inn).
186 Miller v. McDonald’s Corp., 150 Or.App. 274, 945 P.2d 1107
(1997).
187 See York v. Rush-Presbyterian-St. Luke’s Medical Ctr., 222 Ill.2d
147, 854 N.E.2d 635, 305 Ill.Dec. 43 (2006); Clark v. Southview Hosp. and
Family Health Ctr., 68 Ohio St. 3d 435, 628 N.E.2d 46 (1994).
188 The evidence to show control or its lack is similar to that used to
establish the employee’s status as a servant in other cases. See § 31.5.
189 See Frank L. Maraist & Thomas C. Galligan, Jr., The Employer’s
Tort Immunity: A Case Study in Post-Modern Immunity, 57 La. L. Rev.
467, 487 (1997) (discussing workers’ compensation effects of borrowing).
190 New York Cent. R. Co. v. Northern Indiana Public Service Co., 140
Ind. App. 79, 221 N.E.2d 442 (1966); Restatement Second of Agency § 227,
cmt. a (1959).
191 Galvao v. G.R. Robert Const. Co., 179 N.J. 462, 846 A.2d 1215
(2004).
192 See Armoneit v. Elliott Crane Service, Inc., 65 S.W.3d 623 (Tenn.
App. 2001) (discussing many cases).
193 Some courts have attempted to resolve borrowed servant issues by
asking which of the two employers benefits, or whose business is furthered
by the servant’s activity. See, e.g., Franks v. Independent Prod. Co., 96
P.3d 484 (Wyo. 2004) (using a dual “benefit” and “control” test).
194 E.g., Eastman v. R. Warehousing & Port Services, Inc., 141 So.3d
77 (Ala. 2013); Estate of Himsel v. State, 36 P.3d 35 (Alaska 2001); Weaver
v. Brush, 166 Vt. 98, 689 A.2d 439 (1996).
195 Bright v. Cargill, Inc., 251 Kan. 387, 837 P.2d 348 (1992); Kastner
v. Toombs, 611 P.2d 62 (Alaska 1980); Marsh v. Tilley Steel Co., 26 Cal.3d
486, 606 P.2d 366 (1980).
196 See Kastner v. Toombs, 611 P.2d 62 (Alaska 1980).
197 See § 36.5.
198 See McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949)
(originating the metaphor); Rudeck v. Wright, 218 Mont. 41, 709 P.2d 621
(Mont. 1985); Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009).
199 E.g., Nazar v. Branham, 291 S.W.3d 599 (Ky. 2009); Starcher v.
Byrne, 687 So.2d 737 (Miss. 1997); Harris v. Miller, 335 N.C. 379, 438
S.E.2d 731 (1994).
200 See Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994)
(surgeon’s liability for radiologist’s X-ray interpretation).
201 See McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949) (after
analogizing the surgeon’s control to that of the captain, emphasizing that
the unconscious patient was entitled to special protection “by reason of her
trust and confidence in, and necessary reliance upon, the surgeon she
employed to take care of her and her child when born”).
202 See § 23.3. In Lewis v. Physicians Ins. Co. of Wisconsin, 627
N.W.2d 484 (Wis. 2001), the court said that the captain of the ship
doctrine was developed only because hospitals had charitable immunity, so
courts helped the plaintiff by allowing her to recover against the surgeon,
but that such judicial assistance was no longer needed after the abolition
of charitable immunity. However, in that very case, the hospital was
immunized for all liability in excess of $50,000.
777
Chapter 32
STRICT LIABILITY FOR ANIMALS AND

Analysis
A. INTRODUCTION
§ 32.1 Pockets of Strict Liability in a Fault-Based System
B. STRICT LIABILITY FOR ANIMALS
C. STRICT LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES
§ 32.5 Historical Context: From Rylands to the Restatement
§ 32.7 Rationales for Abnormal-Danger Strict Liability
D. LIMITATIONS AND DEFENSES
__________
A. INTRODUCTION
§ 32.1 Pockets of Strict Liability in a Fault-Based
System
Strict liability is imposed upon a defendant without proof that
he was at fault. In other words, when liability is strict, neither
negligence nor intent must be shown. Strict liability is routinely
imposed for breach of contract, but is not so common in tort law.
The liability of a master for torts of a servant, seen in the last
chapter and justified either on grounds of fairness or economic
analysis, is a species of strict liability so far as the fault-free
master is concerned. An even older form was found in early tort
law, which, according to traditional views, imposed strict liability
for all direct and forcible harms to person or property1 and perhaps
for the spread of fire as well. In the mid-19th century, fault became
the normal basis for tort liability,2 but pockets of strict liability
remained.
The cases of strict liability discussed in this chapter have in
common the fact that the defendant created or introduced a
dangerous condition not commonly accepted or reciprocated in the
social unit.3 The risk introduced is not necessarily a very large one,
778
but it is always generated by an activity not commonly pursued

in the relevant community or neighborhood. The cases fall roughly
into two factual settings. In one, the defendant introduces wild or
abnormally dangerous domestic animals into a community. In the
other, the defendant uses explosives or other forces that are not
common in the community, subjecting others to risks that are quite
different from the risks the community imposes upon the
defendant.
B. STRICT LIABILITY FOR ANIMALS
In early England, if a cattle owner drove his cattle onto your
land so that your crops were trampled, he would easily be liable
under the writ of Trespass, since he directly caused an entry onto
your land.4 However, if the cattle merely escaped and wandered
onto your land, the entry looks indirect and thus does not sound
like an appropriate use of the Trespass writ. When these claims
first arose, however, courts had to use the Trespass writ or
nothing, because Case, with its idea of negligence, had not yet been
invented. The writ of Trespass carried strict liability with it, so
that, with some exceptions,5 the owner of wandering cattle was
strictly liable, just as he was strictly liable in other cases where the
writ of Trespass was used.6 The rule stuck even after the writ of
Case became available. The rule of strict liability applied to
barnyard animals generally.7 It did not apply to pets like dogs and
cats,8 although the keeper of such animals might be liable for
negligently or intentionally causing them to enter the land.9
Modern applications. Imposing this form of strict liability put
the economic burden upon cattle owners to protect crop-growers,
perhaps by building fences to keep cattle in. The Restatement
Second imposed strict liability for the trespass, but not for personal
injuries caused by the trespassing animals.10 The Restatement
Third expands strict liability for trespassing animals (other than
cats and dogs) to any physical injury resulting from animal
intrusion that is a characteristic of such intrusion.11 Many states,
especially in the west, substantially reversed the common law
strict liability rule by adopting statutes allowing landowners to
recover for harm done by trespassing cattle only if the landowner
had first erected a fence that met statutory standards—a “fencing
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out” rule.12 That left the rancher liable for intentionally driving
his cattle upon the land of others, but not strictly liable and not
liable for ordinary negligence.13
As some areas became more settled and fencing more practical,
however, legislatures partly returned to the common law rule by
imposing liability upon ranchers for livestock trespasses unless the
rancher could show he had built an adequate fence to contain
them.14 Frequently enough, current statutes provide for open
range and free grazing without liability for areas where cattle
ranching is dominant, but adopt a different rule for other localities
or permit a kind of local option.15 Local control over the issue is
also furthered by contracts or easements assigning grazing rights,
and—informally—by local customs.16 However, a great deal of
public land owned and managed by the federal government is
leased or allotted for grazing. Rights of the government against
trespassing graziers are not dependent upon the state rules.17
Highway cases. Under any of the rules, injuries inflicted by
livestock loose on a public highway represent a different problem.
If a motorist is injured in colliding with a cow, there is no trespass
to land and hence no strict liability claim. In most instances, the
defendant responsible for an animal who strays onto the highway
is liable for negligence and only for negligence.18 Such liability is
imposed by some courts even when the defendant is entitled to
graze animals on open range.19 Others have held that open-range
rules, perhaps in combination with a scheme of statutory
regulation, relieve the owner of any duty of reasonable care to keep
livestock off the roads.20 Some courts have taken the position that
the animal owner owes no duty at all to those on the highway and
hence is not liable to them in any case, even for negligence.21
Owners and keepers of domestic animals such as dogs and cats
are not strictly liable for the animals’ trespasses at all, but under
limited conditions can be strictly liable for
780
personal injuries inflicted by such animals.22 Such liability is

imposed only when the owner or keeper knows or has reason to
know that his animal is abnormally dangerous in some way and
injury results from that danger.23 For example, if a dog owner
knows or at least has notice24 that his dog has an abnormal or
vicious propensity to attack and bite, or his horse to kick, he is
strictly liable for the dog’s biting and the horse’s kicking. Of course,
some dog bites and horse kicks are entirely normal to the species;
strict liability is imposed, if at all, when an animal has an
abnormal propensity to bite, kick or otherwise cause harm. For
example, there is nothing abnormal about an aggressive bull or a
frisky horse, and thus the keeper of such animals is not strictly
liable for injuries inflicted as a result of those characteristics
unless some added and abnormal quality is shown.25 The rule does
not entitle every animal to “one bite”; the owner or keeper may be
aware of an animal’s abnormally dangerous traits long before it
harms anyone.26
Strict liability is not absolute liability; the plaintiff must prove
that the animal’s dangerous propensity is a cause of the plaintiff’s
harm. The fact that the plaintiff is injured by an abnormally
dangerous animal is not relevant if the injury results from some
normal trait or from a danger of which the keeper had neither
knowledge nor notice.27 For example, if a dog’s keeper knows of its
vicious tendency to bite, but not of its tendency to chase bicycles,
the keeper is not strictly liable for injuries caused by the dog’s
chasing a bicycle.28 However, if the tendency to bite includes the
likelihood that the dog will chase its targeted victim in order to bite
him, the chase victim’s injury from a fall may well be within the
risks imposed by the abnormally dangerous animal. Likewise,
knowledge of some traits is capable of generalization—a nervous,
agitated horse who is known to bite may be equally likely to kick,
in which case strict liability is again appropriate.29
Negligence claims. Although in some states courts have
approached domestic-animal cases using a negligence analysis,30
the plaintiff is usually permitted to assert
781
her claim under either a theory of strict liability or a theory of

negligence or both.31 The plaintiff may of course establish
negligence by showing that the keeper of an animal knew of its
abnormally dangerous propensities,32 but negligence might be
shown in other ways as well. For example, if a horse’s owner
encourages small children to play alone with the horse, he may be
negligent even though the horse is not abnormally dangerous,
because his conduct put the children at risk even from normal
behavior of a horse.33 Or if a shelter designs and operates a “cat
lounge” so as to cause an otherwise calm and docile cat to become
agitated and attack a child, negligence liability may be imposed.34
Dog-bite statutes. Statutes and ordinances often impose broader
liability on dog owners and keepers.35 Some statutes, for example,
provide that an owner is liable for a bite if the plaintiff was bitten
in a public place, regardless of whether the dog was vicious or
known to be vicious.36 Such statutes have been applied to cities
where the city owned the dog that bit the plaintiff.37 Ordinances
and leash laws potentially imposing liability are also common.38
The dog-bite statutes usually leave room for defenses based upon
provocation or trespass by the plaintiff,39 or sometimes more
generally for a plaintiff’s contributory negligence.40 Further, some
courts may give the defendant some wiggle-room where imposing
strict liability would work a grave injustice.41 Nonetheless, it is fair
to say that unconditional strict liability is often imposed by statute
for dog bites.42
782

General rule. Animals wild by nature and by the customary
understanding of the community are treated differently from
domestic animals.43 The English rule held that keepers of wild
animals were strictly liable for harm caused by such animals.44
That is, liability is imposed even if the keeper exercised the utmost
care to keep the animal confined and safe.45 The rule has long been
recognized by most American decisions46 and is accepted by the
Restatement,47 although strict liability for animals is sometimes
rejected when it comes to public-entity defendants such as public
zoos.48 The strict liability rule applies even if the animal is not
known to have vicious or abnormal propensities to cause harm.49
Strict liability is, however, limited to harm that results from the
wild or dangerous character of the animal or from dangerous traits
of which the keeper knows or should know.50
Keepers and harborers. The Second Restatement extends strict
liability to those who harbor as well as those who own, possess, or
keep the animal.51 For instance, a parent who permits a child to
keep a lion on the parent’s premises may not possess the lion but
harbors it nonetheless and is responsible accordingly.52 The
emphasis shifts from possession and control of the animal to
possession and control of the premises. But of course this does not
mean that a landowner is strictly liable for injuries inflicted by a
wild animal that intrudes upon his property. In that case, liability
will be imposed only if the landowner was negligent, for example
by negligently failing to repel the animal or to protect guests.53 The
Third Restatement drops the “harboring” terminology and imposes
strict liability upon owners or possessors of wild animals (or both
where the owner has permitted the possession of another). This
does not seem to change the basic coverage of the rule, except that
landowning itself is of no significance if the defendant owns or
possesses the wild animal.54 Equally, landowning is of no
significance if the animal is not owned but merely a wild animal on
the land.55
783
Defining “wild.” The list of animals considered by the courts56

to be wild runs from Ape57 to Zebra.58 It obviously includes such
animals as lions and tigers and bears,59 but courts have classified
many others animals, such as elephants, snakes and wolves, as
wild,60 although it is possible that some of these might become
domesticated.61
The term “wild animals” might imply that only violent, highly
dangerous animals are included in the category. It might also be
thought that strict liability is imposed for such animals only
because of their extraordinary danger and to provide the owner an
incentive to remove the tiger from his backyard.62 But great
danger does not in fact seem to be a necessary element in this form
of strict liability. Probably no one living in Springfield,
Massachusetts, would rate zebra danger as one of the major risks
of living in that city, but zebras count as wild animals in
Massachusetts, and their owners are strictly liable for harms
done.63 Perhaps, however, the wild animal must be dangerous
enough that liability would be imposed if the owner intentionally
allowed it to roam. The Third Restatement imposes a double
requirement by defining wild animals as those not generally
domesticated and which are likely to cause personal injury if not
restrained.64 Whether the Massachusetts Zebra would satisfy this
definition is not clear.65
The theme that runs through the cases and that explains the
rule is that these animals and the risks they bring with them are
uncommon or abnormal in the community and therefore not
mutual or reciprocal. Whether the abnormal quality of risks
associated with wild animals is such that strict liability is justified,
the theme of abnormality can be seen in the way the wildness of
wild animals is determined. An animal is not regarded as wild
merely because it is excessively dangerous nor as domesticated
because it is generally safe. An animal is instead wild or
domesticated according to whether, by local custom, it is devoted to
the service of mankind66 or commonly treated by the community as
a tame or domestic animal. An illustration frequently mentioned is
the elephant, which may be regarded as a domestic animal in parts
of the former British Empire67 but not in England itself.68 Bees are
wild in the sense that they have not been trained and also in the
sense that they can sometimes be
784
quite dangerous, but beekeeping is commonly practiced almost

everywhere and strict liability is not imposed for bee stings.69
C. STRICT LIABILITY FOR ABNORMALLY
DANGEROUS ACTIVITIES
§ 32.5 Historical Context: From Rylands to the
Restatement
Strict liability is imposed for activities that are both highly
dangerous and not commonly pursued in the community.70 Courts
impose liability without fault, for example, when carefully handled
explosives cause harm. The focus is on whether the plaintiff’s
injuries are caused by abnormally dangerous activities of the
defendant, not whether they are caused by dangerous materials.71
The idea is not necessarily to deter such activities altogether but to
make them “pay their way” by charging them with liability for
harms that are more or less inevitably associated with the
activity.72
The Nuisance Connection: Rylands v. Fletcher
The law of strict liability for abnormally dangerous activities
seems to have originated in problems between neighbors arising
from their incompatible uses of their lands, a central concern of
nuisance law.73 A theme in many nuisance cases is that the
defendant has imposed a nonreciprocal or non-mutual harm upon
the plaintiff and one that is out of line with the character and
customs of the neighborhood. A noisy factory in a residential
neighborhood, for example, substantially impedes the residential
neighbors in the enjoyment of their property (and their sleep), but
the residential neighbors impose no similar limitation upon the
factory owner’s enjoyment of his factory.
Several years after Baron Bramwell relied on non-reciprocity as
a ground for liability in nuisance in the 1863 case of Bamford v.
Turnley,74 the House of Lords decided the famous Rylands v.
Fletcher case.75 In Rylands, the defendant retained an independent
contractor to construct a pond in Lancaster, England. Beneath the
land were old mine shafts that had long since been filled or
covered. Neither the contractor nor the landowner discovered any
reason for concern. The ponded water eventually broke through the
debris in the shafts and flowed into them, then through horizontal
shafts to flood the plaintiff’s mine. The House of Lords held that
the landowner who was not negligent at all would be strictly liable.
On its face, Rylands dealt with a nuisance or something very much
like it and in any event it adjudicated rights arising from
incompatible land uses.
785
The Lords in Rylands may have advanced two strands of

thought. One was that a person who introduces something to the
land that is not naturally there and likely to do mischief if it
escapes must be held strictly liable for foreseeable harms resulting
if it does in fact escape.76 The focus here seemed to be on the
natural state of the land itself and its alteration by humans. The
second strand of thought could be understood quite differently to
focus on non-natural use of the land, that is, a use of the land that
was not natural or normal in the community, or an activity that
was incompatible with surrounding land use. The focus of this line
may have been on the community’s usage and custom, not on the
natural condition of the land itself. English courts came to accept
some such view. Thus strict liability would be imposed only in the
case of “some special use bringing with it increased danger”;
landowners would be not be liable for “ordinary” uses of the land.
Waters and their storage tanks are not on the land in a state of
nature, but they are natural in the sense that they reflect ordinary
use, so escape of household water of this kind is not a non-natural
use.77
Although some nineteenth century American courts accepted
Rylands,78 others rejected it because they interpreted it to impose
liability without fault even when the land use was perfectly
normal.79 However, courts did impose liability for nuisance-type
invasions80 and, on the theory of trespass, for harm done by use of
explosives.81
The Restatement formulations
First Restatement. The First Restatement of Torts attempted to
reconcile the different strands of reasoning in Rylands by providing
that strict liability would be imposed for harms resulting from
“ultrahazardous” activities, that is, activities that were especially
dangerous and could not be made safe even by the exercise of the
utmost care. Strict liability would be imposed, however, only if the
activity in question was not a matter of common usage.82
Second Restatement’s factors. The Second Restatement
characterized the problem as one involving “abnormally dangerous
activities” rather than “ultrahazardous activities,” and eliminated
the elements of strict liability imposed in the First Restatement in
favor of factors to be considered.83 Under this factors approach,
strict liability is more likely to be imposed if the defendant’s
activity (a) creates a high risk, (b)
786
with a likelihood of great harm, (c) that cannot be avoided by

reasonable care, and if (d) the activity is uncommon and (e)
inappropriate at the particular site. Strict liability is less likely to
be imposed if (f) the activity has value to the community which
outweighs its dangerous attributes.84
The high risk of an activity as well as its abnormality in the
community are important, but strict liability can be imposed under
the Second Restatement’s approach even if the activity was not
especially risky or uncommon. In addition, these factors look like a
poorly disguised negligence regime, balancing such things as the
value of the defendant’s activity to the community. If strict liability
is determined by the same factors that determine negligence cases,
this form of strict liability is needless at best and probably should
be subjected to Occam’s razor. Put the other way around, if strict
liability is to be retained, the factors represent a poor way to
delineate its contours. It has been said also that the factors cannot
be appropriately applied because the Restatement has furnished no
intelligible rationale for this form of strict liability85 and that
strict-liability decisions should directly consider the goals of strict
liability.86
Third Restatement. The Third Restatement comes closer to the
first. It provides for strict liability for harms caused by abnormally
dangerous activities if (1) the defendant’s activity creates a
reasonably foreseeable risk of physical harm; (2) the risk is “highly
significant”; (3) the risk remains even when reasonable care is
exercised; and (4) the activity is not a matter of common usage.87 If
reasonable care by everyone involved (including potential victims)
can reduce the risk of the activity to a less-than-significant level,
strict liability is rejected.88 The strongest case for strict liability is
one in which the defendant actually knows of the high risk and
makes a deliberate choice to carry on the activity in spite of the
risk89 and in which the defendant’s activity causes harm without
“meaningful contribution” of other actors, as in blasting cases.90
Once again, however, it must be a case in which negligence liability
would be denied, for if care can avoid the risk, the rules of
negligence, not strict liability, would apply. The Third Restatement
suggests that strict liability is morally or “ethically” right when the
defendant knows of the special risks and chooses, for his own
purposes, to pursue his activity anyway,91 and that it may also be
right because in certain kinds of cases negligence will escape
appropriate detection.92
Courts now have generally accepted the principle that for some
activities involving special dangers, especially those not commonly
pursued, liability can be imposed without fault. However, aside
from a few clear cases, the decisions—especially those based on the
Second Restatement’s multi-factor approach—do not harmonize
pleasantly. Frequently enough, courts reject strict liability in
particular cases because the evidence
787
does not demonstrate that the activity in issue is highly

dangerous or that it cannot be made safe by the exercise of care.93
Courts also reject strict liability in particular cases on the ground
that the activity is one commonly pursued in the community.94
Strict liability for explosives and high-energy activities. Strict
liability seems most readily imposed when physical harm results
from the defendant’s use95 or storage96 of dynamite or other
materials97 intended to cause explosions. The idea has been
extended to the case of an oil well that blew out and showered the
plaintiff’s home with debris for 24 hours98 and to explosions of
large quantities of gasoline or propane carried as cargo on the
highways,99 on private property,100 or railroads.101 One court has
even imposed strict liability for fireworks injuries.102 As courts
dropped the older trespass theories of liability for explosions, they
recognized that strict liability could be imposed for vibration
damage generated by explosives, even when the explosion did not
throw objects upon the land or into persons.103 From here, some
courts have gone on to hold that strict liability applies to other
large forces causing vibration damage to property, in particular to
vibrations caused by testing a large rocket104 and those caused by
pile driving.105
788
It is difficult to reconcile all of the decisions, however. Materials

such as gasoline, propane, and natural gas have explosive and
flammable potential. In line with what has already been said, some
authority supports strict liability when such items are stored or
accumulated in unusual volume.106 Many decisions, however, have
rejected such liability or applied a negligence standard in the case
of explosions resulting from the storage of such materials.107
Apparently all of them have rejected it for explosions of natural gas
in connection with its transmission in mains or pipes.108 Likewise,
strict liability has been rejected when such substances as propane
or gas are used as fuel for vehicles, factories, or homes.109
Transmission of electricity in uninsulated power lines is not
regarded as an abnormally dangerous activity.110 And while the
law of products liability may impose strict liability upon
manufacturers of dangerous defective products, courts have almost
always said that neither manufacturers of handguns nor
manufacturers of especially destructive ammunition are strictly
liable on an abnormal-danger theory.111
Poisons and toxic materials. Strict liability for abnormally
dangerous activities has been imposed when the defendant has
used toxic materials commercially to kill pests112 or protect
crops.113 Hazardous materials (often wastes or byproducts of
industrial processes) may contaminate lands, water, and air, and
may cause death or serious bodily harm, making strict liability for
accumulation, escape, percolation, or disposal of such wastes
especially appropriate. Some cases do in fact support such liability
even when toxic materials cause contamination of land rather than
bodily harm.114 This approach is in line with the strict liability
imposed under some state and federal environmental statutes,
although the statutes usually deal with contamination and cleanup
costs rather than with personal injury or property damage.115
On the other hand, when the release of dangerous materials
was unintentional, courts have sometimes emphasized that the
activity, not merely the substance, must be abnormally
dangerous.116 The idea is that although the substance may be
dangerous—asbestos and chlorine gas are examples—some
activities dealing with the substance can be carried out with
reasonable safety, thereby precluding strict liability.117 For
example,
789
Rhode Island refused to apply strict liability rules to inspections

of asbestos, although some other asbestos-related activities might
well warrant strict liability.118 Alabama has similarly said that
disposal of masses of batteries for recycling, although it raises risks
of lead contamination, is not dangerous enough to be an
abnormally dangerous activity.119 Courts may also find it easy to
characterize the activity as common and thus to support a
conclusion that liability must be based upon fault.120
Release or escape of impoundments. Rylands v. Fletcher121 itself
involved escape of water from a mill pond and consequent harm to
a neighbor. Building a mill pond hardly sounds like an activity of
special hazard like explosives; and whatever may have been true in
the mining neighborhood where it was built, it was hardly an
uncommon activity in the country as a whole. Not surprisingly,
American courts have generally rejected Rylands as a basis for
liability for the sudden escape of impounded water.122 But, on one
theory or another, strict liability has sometimes been imposed for
escape of toxic substances,123 for overflow of a natural waterway
due to the defendant’s obstruction,124 for percolation of harmful
substances125 and for intentional release of wastes.126
§ 32.7 Rationales for Abnormal-Danger Strict
Liability
The variety of settings in which strict liability may be imposed
for abnormally dangerous activities is matched by the divergence
in the holdings. It is somewhat dismaying to read that
impoundment of water leads to strict liability in England but not
America, and that storage of dynamite may lead to strict liability
but that storage of natural gas may not. The variety of factors
introduced by the Second Restatement contributed to the
differences in decisions and to uncertainty about what strict
liability for abnormal dangers is all about. Theorists might explain
such differences, but as it turns out theorists and commentators
have quite divergent views of their own.
Deterrence. One view is that strict liability can reduce risks of
harm and encourage actors engaged in abnormally dangerous
activities to find safer methods or at least a safer place for
dangerous activities.127 The suggestion is that there is more room
to reduce risk with high-risk activities than with others. But it is
not so clear that strict
790
liability reduces risk,128 or that it is more important to reduce
the small danger of useful high-risk activities like blasting than to
reduce the more pervasive risk of activities like automobile driving
to which no strict liability attaches. And it may be difficult to know
whether risk-reduction by strict liability comes at too high a price,
by over-deterring, for example. Furthermore, some risks simply
cannot be reduced. Even the repeated suggestion that the
defendant might move the activity to a safer location, if that is
somehow different from a question of negligence, will not always
work. One might give up recreational blasting lest he be held
strictly liable, but contractors cannot very well give up blasting for
subways, tunnels, and highways, nor can they consider moving the
site for those activities. The requirement that the activity be an
uncommon or “non-natural” one would be puzzling, too, if
deterrence or risk-reduction were the goal.
Risk distribution. The enterprise-liability approach takes a
different tack. It is rooted in the belief that even when an
enterprise is not at fault, it should “pay its way.” This view is often
associated with the idea that a business enterprise is a good risk-
distributor, meaning that the enterprise can pay for the harms
with less dislocation than individuals. It might, for example, pass
on the costs to its customers in the form of higher prices, or might
absorb some or all of the costs itself as part of the expense of doing
business. The idea of the good risk-distributor was very popular at
one time and still has ardent supporters.129 However, it has been
argued that life today is not much like life in the Great Depression
of the 1930s. Individuals today are often very good risk-distributors
because they (or their employers) can purchase their own
insurance against some risks more efficiently than enterprises can
purchase liability insurance and defend lawsuits.130 For the many
individuals who cannot protect themselves from harms that occur
without negligence—including some well above the poverty line—
an inadequate but enormous range of social support now exists
through both private and public programs.131 In this setting, use of
the judicial system to secure support for victims of non-negligent
harms may be less attractive than it once was.
Fairness or justice. Enterprise liability can be justified,
however, on different and broader grounds not limited to profit-
making business or ability to absorb loss suffered by others. It can
be argued that as a matter of fairness or justice an actor ought to
pay for the costs that are uniquely or recurrently a result of his
acts so long as the community as a whole does not create or
tolerate similar risks and the plaintiff himself contributes nothing
to it. Activities that are common or “natural” in the community
come under the rule of live and let live, so that liability is imposed
in those cases only if the activity is carried out negligently.132
Although such activities may cause harms, they do not represent
costs that can be especially identified with the defendant’s
operations, only with those of the community at large. In contrast,
when the defendant carries out some activity that carries with it
unique, typical, or recurrent risks, different from those imposed by
activities shared by others in the community, strict liability may be
fair and
791
just. In that case the defendant takes the benefit of his activity
and must similarly pay the tolls that are regularly associated with
that activity.
Fairness rationales, like others, are incomplete or suffer from
weak spots. Quite arguably, new technology with its new risks
should not automatically produce strict liability and it is
noteworthy that when railroads were built, posing new risks unlike
any others, the courts created the law of negligence, not the law of
strict liability.
Common usage. Whatever its weaknesses and strengths,
fairness reasoning shows why common usage is as important as
high risk. The risk in Rylands v. Fletcher that impounded water
will by its weight make the ground below it give way leading to a
flood of an unknown mine is surely a very low-order risk. The risk
that carefully conducted mining will cause the surface of the land
to subside is likewise a small risk. Even storage of dynamite
presents a relatively small risk if it is placed in a remote area of
Alaska. All these and other cases of not-very-risky activities have
invoked strict liability, however. The explosives cases, where
liability was originally imposed on entirely different reasoning,133
led those who tried to synthesize the law to the wrong emphasis. A
special hazard requires a greater quantum of care—you handle
explosives quite differently from the way you handle flour—but not
strict liability. Strict liability is triggered when the risks of the
defendant’s activity are special to that activity and not common to
similar activities carried on generally in the community. A broader
formulation would be that risks unilaterally imposed by the
defendant entail strict liability, while risks generated by
interaction of the plaintiff and defendant on an equal footing do
not.134
Characterization. All the rationales require more explication
than can be given here and all have their own strengths and
weaknesses. One problem common to any approach is that courts
have no principled method for characterizing the activity in
question. Yet their characterization of the activity foreordains the
outcome because, depending on how you describe the activity, it
may or may not seem to be abnormally dangerous or uncommon. In
one claim, the plaintiff asserted that she was exposed to paints
containing dangerous heavy metals and other compounds and
suffered some injuries as a result. The paints were used by the
defendant in his occupation as an artist in his own home. The court
characterized the activity as “painting in one’s house,” which made
it a certainty that the activity was a common usage.135 If the court
had characterized the activity as “exposing others to dangerous
fumes” the activity might have seemed both hazardous and
uncommon.
To some extent these problems in characterization can be
minimized if courts shift the inquiry slightly to ask whether the
risk was peculiarly identified with the defendant’s activity, or was
rather the product of an interaction with a plaintiff who had some
control over the risks.136 A one-way risk, imposed by a defendant
upon whom similar risks are not imposed by others, would be a
good candidate for strict liability.
792
D. LIMITATIONS AND DEFENSES

Strict liability is not unlimited liability. The defendant’s strict-
liability activities must be both a factual and “proximate” cause of
the plaintiff’s harm. In the case of animals known to have
mischievous propensities, the latter requirement means that the
harm must have resulted from that propensity and not from some
other characteristic of the animal. For example, if the defendant’s
dog has a known propensity to bite house guests, the defendant
will be strictly liable for the dog’s bites, but not strictly liable when
the dog merely gets in the plaintiff’s way and causes a fall.137
Similarly, in the case of abnormally dangerous activities, the harm
must result from the characteristic that prompted strict liability in
the first place. For example, the defendant will be strictly liable for
impacts caused by use of explosives and also for vibration damage,
but not for the loss of mink pelts resulting because the noise of
explosion drives mother minks to eat their young.138
The Second Restatement provides one specific rule as an
instance of this principle: the defendant is not strictly liable for
harms resulting from abnormally dangerous activities if those
harms would not have resulted but for the abnormal sensitivities of
the plaintiff’s own activities.139 The case of the mother minks
illustrates that particular rule as well as the more general
principle.140
Intervening acts. What if the defendant is engaging in
abnormally dangerous activities, but an act of a third person
intervenes to cause the plaintiff’s harm? The Third Restatement
applies the ordinary scope-of-risk rule to such cases,141 reflecting
the idea that strict liability is appropriate in that context only
when the risks that led courts to impose strict liability included
risks that third persons would participate in or trigger the harm.
Thus if storage of dynamite runs no special risks that others will
set it off, the defendant should escape strict liability when a
striking worker fires a rifle at the defendant’s stored dynamite,
causing an explosion that injures the plaintiff.142 The Second
Restatement in effect took the view that intervention of others is
always part of the risk of abnormally dangerous activity, at least
when the intervening actor is not guilty of intentional harm.143
Ultimately, it seems that case by case analysis is required
793
to determine whether the harm is any less characteristic of the

activity merely because a third person intervenes.144
Assumption of risk and plaintiff fault. Under the Second
Restatement’s view, the defendant who was subject to strict
liability either because he possessed an animal that caused
harm145 or because he carried on abnormally dangerous
activities146 could not assert ordinary contributory negligence as a
defense. For instance, if the plaintiff negligently failed to discover
the danger, he was not barred by his fault.147 However, except
where statutes provide otherwise,148 the defendant could defend on
the ground that the plaintiff assumed the risk149 or was guilty of
contributory negligence by knowingly and unreasonably subjecting
himself to the risk of harm from the strict liability activity.150
The Third Restatement. The Third Restatement now recognizes
a plaintiff’s contributory fault as grounds for reducing the
plaintiff’s recovery under comparative responsibility principles.151
Assumption of risk has no status separate from contributory fault
and is subject to the same reduction-of-damages rule.152 However,
strict liability is rejected altogether if the plaintiff seeks contact
with the strict-liability risk to secure a benefit of his own,153 and,
indeed, according to some authority, also if the plaintiff
participates in the strict-liability activity.154 Beyond this, when the
risk of the activity can be reduced to a modest level by reasonable
care of the plaintiff (or anyone), strict liability would not be
acceptable under the Third Restatement.155
Merits of the rules. The Second Restatement justified recovery
by a plaintiff whose own fault contributed to her injury for a purely
formal reason. It said that since the strict liability action is not
founded on the defendant’s fault in the first place, the plaintiff’s
fault should furnish no defense.156 The conclusion that
contributory negligence is no defense is explained by rephrasing
the conclusion as “the policy of the law,” but without asserting any
reason for the supposed policy. The result is that the person who is
at fault in causing the harm recovers from the person who is not at
fault in causing it.
The rule seems wrong. If the plaintiff negligently contributes to
her own injury, that means she necessarily has some control over
the risks. In that case, the risks cannot be
794
said to be entirely those fostered by the defendant’s activities.

Even one who speaks for expanded strict liability might support
the use of the contributory negligence defense, at least in the
present world of comparative fault,157 and in the case of strict
products liability, many courts have rejected the rule protecting
plaintiffs from their own fault.158
Although it seems wrong to impose a rule of law that exculpates
negligent plaintiffs in all cases, it must be remembered that the
plaintiff is not necessarily negligent in relying upon the safety of
the defendant’s activity. For example, it is not negligent to visit a
zoo any more than it is negligent for the defendant to operate one;
the risk of escaping animals is simply not an unreasonable one if
the zoo is well-maintained. Even the plaintiff who knows of the
danger is not necessarily at fault in refusing to move her home or
business to avoid it. If she is entitled to be where she is, she is not
at fault in being there.159 Finally, in some rare cases, the
defendant may owe a duty to protect the plaintiff from her own
fault, in which case the plaintiff’s fault is no defense.160
An entirely different question arises when the facts show that
the plaintiff knowingly and unreasonably encountered the danger.
The Second Restatement recognized this as a complete defense.161
The problem with that analysis, as recognized by the Third
Restatement,162 is that with the general adoption of comparative
fault rules in the United States, assumption of risk in negligence
cases is now usually treated like contributory negligence, so that it
no longer invariably bars recovery but usually only reduces
damages. At the same time, however, some cases that were once
decided for the defendant on an assumption of risk analysis may
now be decided for the defendant on the ground that the defendant
owed no duty to the plaintiff or did not breach the duty he owed.
The result is that some former assumption of risk cases are now
matters of comparative fault with a reduction in recovery, while
others are now matters of no duty with a complete denial of all
recovery.163
The difference in the treatment of the plaintiff who confronts
known danger lies largely in the question of contract, consent, or
apparent consent. In the context of strict liability, the person who
foolishly tries to pet the defendant’s tiger is assuredly foolish and
her recovery should probably be reduced, but she has almost
certainly not consented to accept the risk and to relieve the
defendant of all responsibility.164 In contrast, the plaintiff who
accepts employment as trainer of the defendant’s wild animals
apparently consents to the abnormal risks that entails and hence
should not recover on a strict
795
liability basis;165 certainly this is true if she expressly contracts
to assume the risk.166 This kind of case is captured by the Third
Restatement in its rejection of strict liability when harm is
occasioned by a plaintiff who encounters the activity to secure a
benefit for herself.167
________________________________
1 See §§ 9.2 & 9.3.
2 See Brown v. Kendall, 60 Mass. 292, 6 Cush. 292 (1850) (rejecting
strict liability for direct and forcible harms).
3 Many states have even today retained isolated pockets of strict
liability that have nothing to do with abnormal dangers, but do involve the
imposition of non-reciprocal risks. See, e.g., Prete v. Cray, 49 R.I. 209, 141
A. 609 (1928) (landowner removing soil from his own land, causing
adjacent lands to subside of their own weight); Haseman v. Orman, 680
N.E.2d 531 (Ind. 1997) (owner of mineral rights removing support for the
surface of plaintiff’s land).
4 For the rules of the writ of Trespass and the distinction between
Trespass and Case see §§ 2.8 & 9.2.
5 There were exceptions for cattle being driven along a public way;
in that case, liability was imposed only for negligence. See Restatement
6 This account is based upon L. Glanville Williams, Liability for
Animals (1939).
7 E.g., Gresham v. Taylor, 51 Ala. 505 (1874) (hogs); Adams Bros. v.
Clark, 189 Ky. 279, 224 S.W. 1046, 14 A.L.R. 738 (1920) (chickens); Nixon
v. Harris, 15 Ohio St.2d 105, 238 N.Ed.2d 785 (1968) (cow); Morgan v.
Hudnell, 52 Ohio.St. 552, 40 N.E.716 (1895) (horse).
8 Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994)
(tomcat running at large, and “spraying” the plaintiff’s property, no
liability for its bite resulting in multiple surgeries).
9 See Pegg v. Gray, 240 N.C. 548, 551, 82 S.E.2d 757, 759 (1954)
(“in deference to this natural instinct of dogs … [the law allows] a
reputable dog a modicum of liberty to follow his roaming instincts without
imposing liability on its master,” but owner of pack of foxhounds who
engaged in a chase adjoining the plaintiff’s farm would be liable for the
damage they caused if he sent them out knowing they would enter the
land); Baker v. Howard County Hunt, 171 Md. 159, 188 A. 223 (1936)
(similar).
10 See Williams v. Goodwin, 41 Cal.App.3d 496, 116 Cal.Rptr. 200
(1974) (liability for unprovoked attack by bull trespassing in plaintiff’s
garden; reviewing cases considering whether injuries were a direct result
of the trespass); Restatement Second of Torts § 504(2) (1977); James L.
Rigelhaupt, Jr., Annotation, Liability for Personal Injury or Death Caused
by Trespassing or Intruding Livestock, 49 A.L.R.4th 710 (1987).
Harm) § 21, cmt. g (2010).
12 E.g., Colo. Rev. Stat. § 35–46–102. Ellickson concluded that the
fencing out rule became the dominant rule in the 19th century and was
not limited to western states. Robert C. Ellickson, Of Coase and Cattle:
Dispute Resolution among Neighbors in Shasta County, 38 Stan. L. Rev.
623, 660, n. 94 (1986).
13 Garcia v. Sumrall, 58 Ariz. 526, 121 P.2d 640 (1942) (noting a
division of opinion as to what constitutes willful trespass, holding that
mere foreseeability is not enough).
14 See, e.g., Williams v. Goodwin, 41 Cal.App.3d 496, 116 Cal.Rptr.
200 (1974) (recounting history); Cal. Food & Agric. Code § 17122 (limiting
victim’s rights unless he had a “good and substantial” fence).
15 E.g., Ariz. Rev. Stats. § 3–1421 (taxpayers may petition to
establish a district to reverse the fence-out rule).
16 See Robert C. Ellickson, Of Coase and Cattle: Dispute Resolution
among Neighbors in Shasta County, 38 Stan. L. Rev. 623 (1986).
17 See John S. Harbison, Hohfeld and Herefords: the Concept of
Property and the Law of the Range, 22 N.M. L. Rev. 459, 484 ff. (1992).
18 E.g., Hastings v. Sauve, 21 N.Y.3d 122, 967 N.Y.S.2d 658, 989
N.E.2d 940 (2013).
19 Owners and keepers (and others) may be liable for negligently
failing to prevent harms inflicted by animals. See, e.g., Klobnak v.
Wildwood Hills, Inc., 688 N.W.2d 799 (Iowa 2004); Carrow Co. v. Lusby,
167 Ariz. 18, 804 P.2d 747 (1990).
20 Andersen v. Two Dot Ranch, Inc., 49 P.3d 1011 (Wyo. 2002).
21 Douglass v. Dolan, 286 Ill. App. 3d 181, 675 N.E.2d 1012, 221
Ill.Dec. 588 (1997) (no common law duty, but recovery if the plaintiff can
bring herself within a statute imposing liability upon those in charge of
animal); James L. Rigelhaupt, Jr., Annotation, Liability of Owner of
Animal for Damage to Motor Vehicle or Injury to Person Riding Therein
Resulting from Collision with Domestic Animal at Large in Street or
Highway, 29 A.L.R.4th 431 (1981).
22 E.g., Allen v. Cox, 285 Conn. 603, 942 A.2d 296 (2008); Holcomb v.
Colonial Assocs., LLC, 358 N.C. 501, 597 S.E.2d 710 (2004); Strunk v.
Zoltanski, 62 N.Y.2d 572, 468 N.E.2d 13, 479 N.Y.S.2d 175 (1984); Trager
v. Thor, 445 Mich. 95, 516 N.W.2d 69 (1994).
23 Morgan v. Marquis, 50 A.3d 1 (Me. 2012); Carreiro v. Tobin, 66
A.3d 829 (R.I. 2013); Restatement Second of Torts § 509 (1977);
23 (2010).
24 Although this knowledge or scienter requirement necessarily
means that harm is foreseeable in light of the animal’s known propensity,
this liability differs from ordinary negligence because liability is imposed
even if the defendant exercised reasonable care to prevent the harm. See
Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994).
25 Duren v. Kunkel, 814 S.W.2d 935 (Mo. 1991) (bull); Jividen v.
Law, 194 W.Va. 705, 461 S.E.2d 451 (1995) (horse).
26 See Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994)
(rejecting a one-bite rule).
27 Restatement Second of Torts § 509 cmt. i (1977); Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 23, cmt. g
(2010).
28 McNair v. Jones, 137 Ga.App. 13, 14, 223 S.E.2d 27, 28 (1975)
(“[I]t is necessary that he have reason to know of its propensity to do harm
of the type which it inflicts.”).
29 Restatement Second of Torts § 509 cmt. i (1977); see Restatement
(2010).
30 See Martin v. Christman, 99 A.3d 1008 (Vt. 2014) (no strict
liability for dog bites; stating that “eighteen or so states” have adopted
strict liability for dog bites, most by statute); see also Vendrella v. Astriab
Family Limited Partnership, 311 Conn. 301, 87 A.3d 546 (2014) (strict
liability for dog bites by statute, but under common law owners of other
domestic animals are liable only for negligence).
31 Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995); Trager v.
Thor, 445 Mich. 95, 516 N.W.2d 69 (1994); Arnold v. Laird, 94 Wash.2d
867, 621 P.2d 138 (1980); contra, Petrove v. Fernandez, 12 N.Y.3d 546, 910
N.E.2d 993 (2009) (liability for the owners of domestic animals is strict or
not at all).
32 Cf. Jackson v. Mateus, 70 P.3d 78 (Utah 2003) (no negligence
liability where cat attack was not reasonably foreseeable to owners).
33 Williams v. Tysinger, 328 N.C. 55, 399 S.E.2d 108 (1991).
34 Lieberman v. Powers, 70 Mass.App.Ct. 238, 873 N.E.2d 803
(2007).
35 E.g., Pawlowski v. American Family Mutual Ins. Co., 777 N.W.2d
67 (Wis. 2009) (applying Wisconsin’s strict liability dog-bite statute to hold
a non-owner strictly liable to a person bitten by a dog the defendant was
watching in her home, even where the owner himself was present at the
time).
36 See Borns ex rel. Gannon v. Voss, 70 P.3d 262 (Wyo. 2003)
(counting 20 states with such a statute); Cal. Civ. Code § 3342; 510 ILCS
5/16; N.J. Stat. Ann. 4:19–16; S.C. Code § 47–3–110.
37 Wilson v. City of Decatur, 389 Ill.App.3d 555, 329 Ill. Dec. 597
(2009) (holding that the city can be strictly liable pursuant to the dog-bite
statute’s clear language, even where the city was immune from negligence
liability). But see Tate v. City of Grand Rapids, 671 N.W.2d 84 (Mich. App.
2003) (rejecting plaintiff’s argument that a statute retaining governmental
immunity from “tort liability” did not apply to dog bite statute because
statute was “strict liability”).
38 See, e.g., Poznanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003); Clo
v. McDermott, 239 A.D.2d 4, 668 N.Y.S.2d 743 (1998) (violation of
ordinance requiring dogs to be under control in public places would be
evidence of negligence when dog ran in front of bicycling plaintiff, causing
a fall).
39 See Stroop v. Day, 271 Mont. 314, 896 P.2d 439 (1995) (plaintiff’s
act of chasing dog four weeks earlier was not provocation, nor was
plaintiff’s act of leaning on fence where dog was penned).
40 See Dougan v. Nunes, 645 F.Supp.2d 319 (D.N.J. 2009) (noting
that New Jersey law allows a defense of contributory negligence in strict
liability dog-bite cases, but finding the defense not established where the
plaintiff neither knew of the animal’s viciousness nor provoked it).
41 Wisconsin courts, for example, have sometimes utilized “judicial
public policy factors” to avoid imposing statutory strict liability on owners
and keepers of dogs. See Pawlowski v. American Family Mutual Ins. Co.,
777 N.W.2d 67 (2009); see also Augsburger v. Homestead Mut. Ins. Co.,
856 N.W.2d 874 (Wis. 2014) (statutory strict liability of dog owners is in
derogation of the common law, so should be interpreted narrowly).
42 See Ward Miller, Annotation, Modern Status of Rule of Absolute
or Strict Liability for Dogbite, 51 A.L.R.4th 446 (1987); Russell G.
Donaldson, Validity and Construction of Statutes, Ordinance, or
Regulation Applying to Specific Dog Breeds, such as “Pit Bulls” or “Bull
Terriers,” 80 A.L.R.4th 70 (1990).
43 See Harper v. Robinson, 263 Ga. App. 727, 589 S.E.2d 295 (2003).
44 See W.V.H. Rogers, Winfield & Jolowicz on Tort 799 (18th ed.
2010); cf. May v. Burdett, 9 Q.B. 101 (1846) (liability for monkey known to
be of mischievous nature even if defendant exercised due care).
45 City of Dallas v. Heard, 252 S.W.3d 98 (Tex. App. 2008); Smith v.
Jalbert, 351 Mass. 432, 221 N.E.2d 744 (1966).
46 See, e.g., Irvine v. Rare Feline Breeding Ctr., Inc., 685 N.E.2d 120
(Ind. App. 1997); American States Ins. Co. v. Guillermin, 108 Ohio App.3d
547, 671 N.E.2d 317 (1996) (lion); contra, Vaughan v. Miller Bros. “101”
Ranch Wild West Show, 109 W.Va. 170, 153 S.E. 289, 69 A.L.R. 497
(1930).
47 Restatement Second of Torts § 507(1) (1977); Restatement Third
of Torts (Liability for Physical and Emotional Harm) § 22 (2010).
48 See William E. Shipley & Sonja A. Soehnel, Annotation,
Governmental Liability from Operation of Zoo, 92 A.L.R.3d 832 (1980)
(reflecting decisions both ways). The general rule applied in other cases is
that public entities are not strictly liable.
49 E.g., Smith v. Jalbert, 351 Mass. 432, 221 N.E.2d 744 (1966)
(zebra).
50 Restatement Second of Torts § 507(2) (1977); Restatement Third
of Torts (Liability for Physical and Emotional Harm) § 22, cmt. f (2010).
52 See American States Ins. Co. v. Guillermin, 108 Ohio App.3d 547,
671 N.E.2d 317 (1996).
53 See Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124 F.3d 47
(1st Cir. 1997) (rejecting statutory strict liability where hotel was invaded
by a rabid mongoose which bit a sunbathing guest; there was no evidence
of negligence); Overstreet v. Gibson Product Co. of Del Rio, 558 S.W.2d 58
(Tex. Civ. App. 1977) (no strict liability where rattlesnake is on premises
but not harbored by defendant).
Harm) § 22, cmt. e (2010).
55 Id., implying that the landowner is under no obligation to get rid
of wild animals on his land merely because he knows they are there, giving
rattlesnakes as an instance.
56 The classification of an animal as wild is an issue of law for the
court. Restatement Third of Torts (Liability for Physical and Emotional
Harm) § 22, cmt. b (2010).
57 Normand v. City of New Orleans, 363 So.2d 1220 (La. Ct. App.
1978).
58 Smith v. Jalbert, 351 Mass. 432, 221 N.E.2d 744 (1966).
59 Lion: American States Ins. Co. v. Guillermin, 108 Ohio App.3d
547, 671 N.E.2d 317 (1996); tiger: Irvine v. Rare Feline Breeding Ctr., Inc.,
685 N.E.2d 120 (Ind. Ct. App. 1997); bear: City of Mangum v. Brownlee,
181 Okla. 515, 75 P.2d 174 (1938).
60 Coyotes: Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1962); deer
(bucks): Hudson v. Janesville Conservation Club, 168 Wis.2d 436, 484
N.W.2d 132 (1992); elephants: Filburn v. People’s Palace & Aquarium Co.,
Ltd., 25 Q.B.D. 258 (1890); monkeys: Whitefield v. Stewart, 577 P.2d 1295
(Okla. 1978) (pet wooly monkey was a “tamed wild animal” and by analogy
to dog statute, owner would be strictly liable if it bit without provocation);
rattlesnakes: Keyser v. Phillips Petroleum Co., 287 So.2d 364 (Fla. Dist.
Ct. App. 1973); wolves: Hays v. Miller, 150 Ala. 621, 43 So. 818 (1907).
61 Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297 (1967).
62 G.J. Leasing Co., Inc. v. Union Elec. Co., 54 F.3d 379, 386 (7th Cir.
1995) (Posner, J.) (using tiger in the backyard as analogy in asbestos-
release case).
63 Smith v. Jalbert, 351 Mass. 432, 221 N.E.2d 744 (1966).
Harm) § 22(b) (2010).
65 See id. cmt. b (iguanas, pigeons, and manatees are not dangerous
and hence not covered).
67 Maung Kyaw Dun v. Ma Kyin, 2 Upper Burma Rul. 570 (1897).
68 Filburn v. People’s Palace & Aquarium Co., Ltd., 25 Q.B.D. 258
(1890).
69 See, e.g., Ferreira v. D’Asaro, 152 So.2d 736, 737 (Fla. App. 1963);
David B. Harrison, Annotation, Liability For Injury or Damage Caused by
Bees, 86 A.L.R.3d 829 (1978).
70 Restatement Second of Torts §§ 519 to 520 (1977); Restatement
Third of Torts (Liability for Physical and Emotional Harm) § 20 (2010)
(formulating the rules differently but with much the same thrust).
71 Selwyn v. Ward, 879 A.2d 882 (R.I. 2005) (rejecting strict liability
for a liquor store’s sale of grain alcohol to a minor, where another minor
ignited it; even if grain alcohol is a dangerous material, selling it is not a
dangerous activity).
72 See Spano v. Perini Corp., 25 N.Y.2d 11, 17, 302 N.Y.S.2d 527,
531, 250 N.E.2d 31, 34 (1969) (liability does not “exclude the defendant
from blasting and thus prevent desirable improvements,” nor does it mean
that blasting is unlawful; it merely determines who should bear the cost of
harms it causes). See also Mark Geistfeld, Should Enterprise Liability
Rules Replace the Rule of Strict Liability for Abnormally Dangerous
Activities?, 45 U.C.L.A. L. Rev. 611 (1998).
73 See Chapter 30.
74 Bamford v. Turnley, 3 B & S 66, 122 Eng.Rep. 25 (Exech. Ch.
1862) (Judgment of Bramwell, B.).
75 Rylands v. Fletcher, L.R. 3 H.L. 330 (1868).
76 This version (more fully stated) is seen as the rule in Rylands in
W.V.H. Rogers, Winfield & Jolowicz on Tort 763–765 (18th ed. 2010).
77 Rickards v. Lothian, [1913] A.C. 263, 280 (Privy Council).
78 E.g., Ball v. Nye, 99 Mass. 582 (1868) (percolating filth, seemingly
applying substantial-certainty intent).
79 Brown v. Collins, 53 N.H. 442 (1873) (defendant’s horse frightened
by a train, knocked down the plaintiff’s lamppost); Marshall v. Welwood,
38 N.J. Law 339 (1876) (boiler explosion damaged neighboring property);
Losee v. Buchanan, 51 N.Y. 476 (1873) (same); Turner v. Big Lake Oil Co.,
128 Tex. 155, 96 S.W.2d 221 (1936) (pond of salt water used in oil well
work collapsed and caused damage to neighboring lands). Rylands would
probably have supported a judgment for the defendant in all these cases.
80 Ball v. Nye, 99 Mass. 582 (1868).
81 See Sullivan v. Dunham, 161 N.Y. 290, 55 N.E.923 (1900)
(blasting of stumps, one flew through the air and struck and killed
decedent, a trespass to the person). As these cases did not involve any
intent to enter the land or to harm the person of another, the trespass
explanation was either a fiction or a leftover from the days before Brown v.
Kendall adopted fault as the usual basis of liability.
82 Restatement First of Torts § 520 (1938). The common usage
requirement was criticized as a “subtle tactic” to stifle development of
strict liability as a means of loss spreading in Virginia E. Nolan &
Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability,
65 N.C. L. Rev. 257, 259, 265 ff. (1987).
83 The judge, not the jury, weighs these factors to determine whether
strict liability applies. Restatement Second of Torts § 520 cmt. l (1977);
see, e.g., Selwyn v. Ward, 879 A.2d 882 (R.I. 2005); Bella v. Aurora Air,
Inc., 279 Or. 13, 566 P.2d 489 (1977).
85 See Mark Geistfeld, Should Enterprise Liability Replace the Rule
of Strict Liability for Abnormally Dangerous Activities?, 45 U.C.L.A. L.
Rev. 611 (1998).
86 Joseph H. King, Jr., A Goals-Oriented Approach to Strict Tort
Liability for Abnormally Dangerous Activities, 48 Baylor L. Rev. 341
(1996). As to goals or rationales, see § 32.7.
Harm) § 20 (2010).
88 Id. cmt. h.
89 Id. cmts. f & i.
90 Id. cmt. e.
91 Id. cmt. f.
92 Id. cmt. b.
93 E.g., In re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004)
(removal of natural resources from land that allegedly caused flooding);
Valentine v. Pioneer Chlor Alkali Co., Inc., 109 Nev. 1107, 864 P.2d 295
(1993) (chlorine gas); Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440,
368 N.E.2d 24, 398 N.Y.S.2d 401 (1977) (hydraulic dredging and filling
with water impounded near the plaintiffs’ homes, leading to subsidence).
94 E.g., DeNardo v. Corneloup, 163 P.3d 956 (Alaska 2007) (rejecting
strict liability for cigarette smoking where secondhand smoke caused
harm; “Smoking is a matter of common usage.”); Grube v. Daun, 213
Wis.2d 533, 570 N.W.2d 851 (1997) (underground storage tanks for
gasoline on farms were common, no strict liability for contaminating leak);
Mahowald v. Minnesota Gas Co., 344 N.W.2d 856 (Minn. 1984) (natural
gas is common and is valuable to community, no strict liability).
95 Dyer v. Maine Drilling & Blasting, Inc., 984 A.2d 219 (Me. 2009)
(noting that at least 41 states have adopted strict liability for blasting).
96 Yukon Equip. v. Fireman’s Fund Ins. Co., 585 P.2d 1206 (Alaska
1978).
97 By a federal statute and international law, even goods not
intended to cause explosion or fire might come under strict liability rules:
the shipper of dangerous goods not so identified to the carrier is strictly
liable to the carrier for harm done by those goods during carriage at sea,
where both parties were ignorant of the especially dangerous
characteristic. Senator Linie Gmbh & Co. Kg v. Sunway Line, Inc., 291
F.3d 145 (2d Cir. 2002) (construing Carriage of Goods by Sea Act § 4(6), 46
U.S.C.A. § 30701 note). If either party knows that the cargo might be
hazardous, however, liability must be based on negligence and is not strict.
In re M/V DG Harmony, 533 F.3d 83 (2d Cir. 2008).
98 Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952, 60
A.L.R. 475 (1928) (advancing a trespass theory).
99 Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972).
100 Zero Wholesale Gas Co., Inc. v. Stroud, 264 Ark. 27, 571 S.W.2d 74
(1978) (propane delivery truck at propane depot).
101 National Steel Service Ctr. Inc. v. Gibbons, 319 N.W.2d 269, 31
A.L.R.4th 650 (Iowa 1982).
102 Klein v. Pyrodyne Corp., 117 Wash.2d 1, 810 P.2d 917 (1991);
contra, Cadena v. Chicago Fireworks Mfg. Co., 297 Ill.App.3d 945, 697
N.E.2d 802, 232 Ill.Dec. 60 (1998) (fireworks display not “ultrahazardous”
since risk can be controlled and they are in common use). In Beddingfield
v. Linam, 127 So.3d 1178 (Ala. 2013), the court distinguished Klein, which
involved a large public fireworks display being conducted before a large
crowd, rejecting strict liability in a case in which three boys were shooting
bottle rockets on private property near a lake, which is “not the type of
activity that the strict-liability rule was designed to cover”; the fireworks
in the case “are commonly used,” the court said, and “much of the risk
involved with ordinary consumer fireworks can be eliminated by the use of
reasonable care.”
103 Exner v. Sherman Power Constr. Co., 54 F.2d 510, 80 A.L.R. 686
(2d Cir. 1931); Birmingham Coal & Coke Co. v. Johnson, 10 So.2d 993
(Ala. 2008).
104 Smith v. Lockheed Propulsion Co., 247 Cal.App.2d 774, 56
Cal.Rptr. 128, 29 A.L.R.3d 538 (1967); Berg v. Reaction Motors Division,
37 N.J. 396, 181 A.2d 487 (1962) (testing of rocket engine).
105 Caporale v. C.W. Blakeslee and Sons, Inc., 149 Conn. 79, 175 A.2d
561 (1961); Sachs v. Chiat, 281 Minn. 540, 162 N.W.2d 243 (1968); Vern J.
Oja Assocs. v. Washington Park Towers, Inc., 89 Wash.2d 72, 569 P.2d
1141 (1977); contra, Gallagher v. H.V. Pierhomes, LLC, 182 Md.App. 94,
957 A.2d 628 (2008); In re Chicago Flood Litigation, 176 Ill.2d 179, 680
N.E.2d 265, 223 Ill.Dec. 532 (1997); Ted’s Master Service, Inc. v. Farina
Brothers Co., 343 Mass. 307, 178 N.E.2d 268 (1961).
106 McLane v. Northwest Natural Gas. Co., 255 Or. 324, 467 P.2d 635
(1970); Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972)
(gasoline being hauled in tank truck).
107 See Barron C. Ricketts, Annotation, Liability in Connection with
Fire or Explosion Incident to Bulk Storage, Transportation, Delivery,
Loading, or Unloading of Petroleum Products, 32 A.L.R.3d 1169 (1971).
108 See, e.g., Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165
(1997).
109 E.g., Allison v. Ideal Laundry & Cleaners, 215 S.C. 344, 55 S.E.2d
281 (1949); Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972).
110 Kent v. Gulf States Utils. Co., 418 So.2d 493 (La. 1982).
111 E.g., Copier v. Smith & Wesson Corp., 138 F.3d 833 (10th Cir.
1998).
112 Luthringer v. Moore, 31 Cal.2d 489, 190 P.2d 1 (1948); Old Island
Fumigation, Inc. v. Barbee, 604 So.2d 1246 (Fla. Dist. Ct. App. 1992).
113 Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312 (1961); Langan v.
Valicopters, Inc., 88 Wash.2d 855, 567 P.2d 218 (1977); see Jonathan M.
Purver, Annotation, Liability For Injury Caused by Spraying or Dusting of
Crops, 37 A.L.R.3d 833 (1972).
114 See Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969)
(gasoline percolated through the ground and contaminated the plaintiff’s
water); T. & E. Indus. Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d
1249 (1991) (radium accumulated on the defendant’s land); State, Dep’t of
Environmental Protection v. Ventron, 94 N.J. 473, 468 A.2d 150 (1983)
(283 tons of mercury escaped from defendant’s property).
115 See William K. Jones, Strict Liability for Hazardous Enterprise,
92 Colum. L. Rev. 1705, 1742 (1992).
116 E.g., Valentine v. Pioneer Chlor Alkali Co., Inc., 109 Nev. 1107,
864 P.2d 295 (1993).
117 G.J. Leasing Co., Inc. v. Union Elec. Co., 54 F.3d 379 (7th Cir.
1995) (sale of building containing asbestos, no strict liability, partly
because danger could be “adequately contained by taking care”); Grube v.
Daun, 213 Wis.2d 533, 570 N.W.2d 851 (1997) (underground gasoline
storage tank was common and could be made safe by reasonable care).
118 Splendorio v. Bilray Demolition Co., 682 A.2d 461 (R.I. 1996).
119 Thompson v. Mindis Metals, Inc., 692 So.2d 805 (Ala. 1997).
120 See, e.g., Mahowald v. Minnesota Gas Co., 344 N.W.2d 856 (Minn.
1984); Grube v. Daun, 213 Wis.2d 533, 570 N.W.2d 851 (1997).
121 Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), discussed in § 32.5.
122 See Chicago & N.W. Ry. v. Tyler, 482 F.2d 1007 (8th Cir. 1973);
Bowling v. City of Oxford, 267 N.C. 552, 148 S.E.2d 624 (1966) (stream
dammed, negligence required); cf. Turner v. Big Lake Oil Co., 128 Tex.
155, 96 S.W.2d 221 (1936) (escape of ponded salt water).
123 See Cities Service Co. v. State, 312 So.2d 799 (Fla. Dist. Ct. App.
1975) (escape of billions of gallons of slime).
124 See Amish v. Walnut Creek Development, Inc., 631 S.W.2d 866
(Mo. App. 1982); Gossner v. Utah Power & Light, 612 P.2d 337 (Utah
1980).
125 Branch v. Western Petroleum, Inc., 657 P.2d 267 (Utah 1982)
(citing cases).
126 Atlas Chemical Industries, Inc. v. Anderson, 514 S.W.2d 309 (Tex.
Ct. App. 1974), aff’d, 524 S.W.2d 681 (Tex. 1975).
127 See Mark Geistfeld, Should Enterprise Liability Replace the Rule
of Strict Liability for Abnormally Dangerous Activities?, 45 U.C.L.A. L.
Rev. 611 (1998); cf. G.J. Leasing Co., Inc. v. Union Elec. Co., 54 F.3d 379,
386 (7th Cir. 1995) (Posner, J.: we want the person who keeps a tiger in
his backyard to “consider seriously the possibility of getting rid of the tiger
altogether”).
128 See Joseph H. King, Jr., A Goals-Oriented Approach to Strict Tort
Liability for Abnormally Dangerous Activities, 48 Baylor L. Rev. 341, 353–
354 (1996).
129 Virginia E. Nolan & Edmund Ursin, The Revitalization of
Hazardous Activity Strict Liability, 65 N.C. L. Rev. 257 (1987).
130 See King, supra n. 128, at 351 (less than half of premium dollars
for liability insurance reach victims); Geistfeld, supra n. 127; David G.
Owen, the Moral Foundations of Products Liability Law: Toward First
Principles, 68 Notre Dame L. Rev. 427, 504 (1993).
131 See Geistfeld, supra n. 127, at 626–627.
132 See Bamford v. Turnley, 3 B & S 67, 122 Eng.Rep. 27 (Exch. Ch.
1862); Richard A. Epstein, A Theory of Strict Liability, 2 J. Leg. Stud. 151
(1973); Richard A. Epstein, Nuisance Law: Corrective Justice and Its
Utilitarian Constraints, 8 J. Leg. Stud. 49 (1979); George P. Fletcher, Tort
Theory, 85 Harv. L. Rev. 537 (1972).
133 Sullivan v. Dunham, 161 N.Y. 290, 55 N.E.923 (1900); cf. Colton v.
Onderdonk, 69 Cal. 155, 10 P. 395 (1886) (trespass theory with talk of
intrinsic danger).
134 William K. Jones, Strict Liability for Hazardous Enterprise, 92
Colum. L. Rev. 1705 (1992).
135 Humphreys v. Humphreys, 949 F.Supp. 1014 (E.D. N.Y. 1997).
92 Colum. L. Rev. 1705 (1992).
137 See Restatement Second of Torts § 509(2) (1977); Restatement
(2010) (strict liability limited to risks that are characteristic of the risks
posed by abnormally dangerous activities or by animals).
138 See Foster v. Preston Mill Co., 44 Wash.2d 440, 268 P.2d 645
(1954); Restatement Third of Torts (Liability for Physical and Emotional
Harm) § 29, cmt. l (2010).
140 The Third Restatement omits the special provision, recognizing
that the point is covered by the general scope of risk principle. However,
the special sensitivity of the plaintiff suggests that the plaintiff is as much
a part of the riskiness as the defendant, a ground for denying strict
liability in the first place. See Restatement Third of Torts (Liability for
Physical and Emotional Harm) § 29, cmt. l (2010).
Harm) § 34, Reporter’s Note (2010).
142 Pecan Shoppe of Springfield, Missouri, Inc. v. Tri-State Motor
Transit Co., 573 S.W.2d 431 (Mo. App. 1978).
143 Restatement Second of Torts § 522 (1977); cf. Yukon Equip. v.
Fireman’s Fund Ins. Co., 585 P.2d 1206 (Alaska 1978) (because one reason
that storage of large amounts of dynamite is abnormally dangerous is that
third persons may set it off, defendant was strictly liable for an explosion
deliberately set by a third person).
144 See Klein v. Pyrodyne Corp., 117 Wash.2d 1, 17, 810 P.2d 917, 925
(1991), amended, 817 P.2d 1359 (1991) (defendant relieved of liability
“only if those acts were unforeseeable in relation to the extraordinary risk
created by the activity”).
146 Id. § 524.
147 Matkovic v. Shell Oil Co., 218 Mont. 156, 707 P.2d 2 (1985).
148 Statutes and ordinances often control liability for injuries by dogs
and may equally prescribe and limit the defenses available. See Donner v.
Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So.2d 21 (Fla. 1978) (error to
instruct on assumed risk in dog bite case; only the statutory provocation
defense is available).
149Restatement Second of Torts § 523 (1977) (assumption of risk as to
abnormally dangerous activities).
150 Id. § 524 (knowing exposure to risk of abnormally dangerous
activities) & § 515 (knowing exposure or assumed risk as to animals); cf.
Rickrode v. Wistinghausen, 128 Mich. App. 240, 340 N.W.2d 83 (1983)
(willful provocation of an animal is a defense).
Harm) § 25 (2010).
152 Id., cmt. e.
153 Id. § 24(a).
154 Pullen v. West, 92 P.3d 584 (Kan. 2004).
Harm) § 20, cmt. h (2010).
156 Restatement Second of Torts § 515, cmt. b & § 524, cmt. a (1977).
92 Colum. L. Rev. 1705, 1756–1757 (1992).
158 See § 33.17.
159 See Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. Co, 232
U.S. 340, 34 S.Ct. 415, 58 L.Ed. 631 (1914); William K. Jones, Strict
Liability for Hazardous Enterprise, 92 Colum. L. Rev. 1705, 1756–1757
(1992); cf. Gary T. Schwartz, Rylands v. Fletcher, Negligence, and Strict
Liability in Peter Cane & Jane Stapleton, Essays in Celebration of John
Fleming 209, 224 (1998).
160 See §§ 16.2 & 16.6.
161 Restatement Second of Torts §§ 515(2) & 524(2) (1977).
Harm) § 25, cmt. e.
163 See §§ 17.6, 17.7 & 33.17.
164 Cf. Leiner v. First Wythe Ave. Serv. Station, Inc., 121 Misc.2d 559,
468 N.Y.S.2d 302 (1983), aff’d, 127 Misc.2d 794, 492 N.Y.S.2d 708 (N.Y.
Sup. App. 1985) (plaintiff’s conduct toward vicious dog treated as
comparative fault).
165 Cf. Peneschi v. National Steel Corp., 170 W.Va. 511, 295 S.E.2d 1
(1982) (acceptance of job dealing with abnormally dangerous activities is
assumption of risk barring a strict liability recovery).
166 See Integrated Waste Services, Inc. v. Akzo Nobel Salt, Inc., 113
F.3d 296 (2d Cir. 1997) (conclusion that defendant owed no duty because
contractual allocations of rights between the parties bars strict liability
and negligence claims).
Harm) § 24(a) (2010).
797
Chapter 33
PRODUCTS LIABILITY
Analysis
A. DELINEATING THE FIELD
§ 33.2 History, Rationales, and Decline of Strict Liability
§ 33.3 The Economic Loss Rule: Stand-Alone Economic Harm
B. TORT LIABILITY FOR DEFECTIVE PRODUCTS
§ 33.8 Problems with the Consumer Expectations Test: Open and
Obvious Dangers and Other Difficulties
§ 33.12 Shifting the Burden of Proof in Design Defect Cases
§ 33.15 Learned Intermediaries and Sophisticated Users
C. DEFENSES
§ 33.17 Contributory Negligence and Assumption of Risk
§ 33.18 Unforeseeable Misuse, Alteration and Modification
__________
A. DELINEATING THE FIELD

The law of products liability concerns the bases for, defenses to,
and scope of liability of those who are in the business of
manufacturing, selling or supplying goods for harms caused by
defective tangible products.1 The field has enjoyed an enormous
vogue in legal
798
circles since about 1963, partly because jurists were challenged

by the new idea of strict liability that began to be developed about
that time.2 Scores of books,3 many of them multi-volume treatises,4
as well as hundreds of law review articles, have argued the theory
and the rules.
The focus on defect. The Restatement of Products Liability5
provides a convenient language for discussion of all products
liability claims. No manufacturer or distributor is liable for harm
caused by a product unless the product is defective. The language of
defectiveness encompasses negligence, warranty, and strict tort
liability. The Restatement’s “defect” analysis makes it possible to
discuss the rules of liability without necessarily identifying the
negligence or warranty basis for them,6 although the various
liability theories retain their currency for many purposes today.
The main theories. (1) Negligence. As a practical matter the
plaintiff has often found it useful to assert negligence in the
manufacture or sale of a product.7 Although the Restatement
Second collects more than a dozen rules directed at the liability of
chattel suppliers for negligence,8 the rules reflect general
negligence principles and require little separate discussion here.
To a very large extent, the negligence claim applies the general
rules of negligence in a products setting. Consequently, questions
of industry custom9 and product risks10 discussed below in
connection with product defects are central to the negligence
theory as well as to others.
(2) Breach of warranty. So far as the plaintiff claims a breach
of express or implied warranty, that claim is often associated with
contract liability. Liability for breach of warranty is ordinarily
strict liability: liability results from breach even if the defendant
used reasonable efforts to perform. To a large extent, the law of
implied warranty has gradually merged with strict tort liability.
For the purpose of drafting a complaint and presenting alternative
theories to the court, warranty theories must be separated from
799
others.11 For the purpose of outlining contemporary products

liability law, the standards for determining merchantability under
warranty law and the standard for determining whether a product
is defective under tort law are largely interchangeable.12
(3) Misrepresentation. The misrepresentation claim is little
different. The idea is that the plaintiff relies upon a representation,
perhaps on a label. For example, the plaintiff might use a ladder,
relying on the label that says it can hold 500 pounds. If the ladder
collapses with a load of 200 pounds, the plaintiff has a
misrepresentation claim and perhaps a warranty claim.13 Neither
claim requires proof that the defendant was at fault in making or
designing the ladder. Even misrepresentations contained in
advertisements or press releases, coupled with a course of conduct
designed to mislead the public, might suffice.14 When it comes to
nondisclosure of important information, the law of
misrepresentation sometimes but not always imposes a duty to
speak and liability for nondisclosure.15 But perhaps there is no
need to resort to the fraud cases for precedent; the law of products
liability, with its rules requiring warnings of danger, probably has
adequate precedent to deal with this problem.16
(4) Strict liability in tort. Since the early 1960’s, plaintiffs have
frequently asserted that the manufacturer or distributor is strictly
liable, not as matter of warranty or misrepresentation, but as a
matter of tort law. The claim has been that it is enough for liability
that the ladder is defective and its defective condition causes harm.
It is the strict-liability theory that captured most of the thinking
and generated most of the developing jurisprudence after about
1963. One of the issues today is whether, or to what extent, strict
liability is actually imposed.
§ 33.2 History, Rationales, and Decline of Strict
Liability
Early Development and the Privity Rule
The privity requirement. The steps that brought about a
measure of strict liability for defective products have been traced
well and often.17 In brief, they begin with Winterbottom v.
Wright,18 a decision of an English court in 1842 holding that a
negligent manufacturer was definitely not subject to liability for a
defective product when the injured victim was not the person who
had purchased the product. If the plaintiff was not in contractual
privity with the defendant, he had no claim. The privity
requirement continued to protect negligent manufacturers until
well into the 20th century,19 with
800
exceptions allowing recovery when the manufacturer was guilty

of fraud or misrepresentation or dangerous mislabeling and also
when the product itself was inherently or intrinsically dangerous.20
Judge Cardozo substantially abolished the privity rule for
negligence cases in the famous case of MacPherson v. Buick Motor
Co.,21 decided in 1916. In that case a wheel on the plaintiff’s new
car collapsed and the plaintiff was injured. The plaintiff was not in
privity with the manufacturer—he had purchased the car from a
retailer, not from the manufacturer—but Judge Cardozo permitted
his claim against the manufacturer to proceed. Imminent,
inherent, or intrinsic danger was no longer required to avoid the
privity limitation. “If [the manufacturer] is negligent where danger
is to be foreseen, a liability will follow.”22 Over the years, other
courts came to accept MacPherson.
Development of implied warranties. After MacPherson, injured
plaintiffs could recover against manufacturers for negligence, but
negligence of a manufacturer or even a retailer remained difficult
to prove. To avoid this difficulty, plaintiffs sometimes sued for
breach of express warranty. If breach were established, the
defendant would have been liable in contract without proof of fault.
Few manufacturers expressly guarantee that the product will
produce no injury, so plaintiffs began to urge that the sale of goods
implied a warranty. As ultimately codified, a sale of goods
impliedly carried a warranty that the goods were merchantable,
that is, that they were what they seemed to be and fit for the
ordinary purposes for which such goods were sold. Likewise, if the
seller knew of particular purposes of the buyer, the seller impliedly
warranted them to be fit for those purposes as well. Implied
warranties were codified as rules of law in the Uniform Sales Act
and later in the Uniform Commercial Code. Since an implied
warranty claim suggested that the manufacturer had implicitly
contracted to provide a reasonably safe product, the plaintiff was
not required to prove fault. On the other hand, the privity rule,
which had been abolished by MacPherson for negligence cases, still
applied to bar the express and implied warranty claims except
when the plaintiff sued his immediate seller.
The best of both worlds: avoiding the privity rule. For a period,
courts developed special exceptions to the privity rule, allowing the
plaintiff who was not in privity to recover on an implied-warranty
claim against a manufacturer of deleterious food23 and sometimes
of other products intended for intimate bodily use or considered to
be especially dangerous. The Uniform Commercial Code went a
little further, eliminating the privity requirement for members of
the product purchaser’s household, so a daughter could recover on
warranty if her mother had purchased the product from the
defendant. It also provided more liberal options for expanding
warranty liability.24 Then in 1960, the New Jersey Supreme Court
rendered a famous decision in Henningsen v. Bloomfield Motors.25
In that case the plaintiff was injured when the steering failed in a
new car. The court held that the implied warranty extended not
only to items like food, but to any
801
item. Neither the absence of privity nor the presence of

contractual limitations on the manufacturer’s responsibility would
bar the claim. A new era seemed to be dawning.
Development of Strict Liability in Tort
Strict liability in tort. The chief problems with strict liability
under an implied-warranty theory is that the term itself implies a
contractual liability with privity limitations. In 1963, this objection
was eliminated by the new leading case, Greenman v. Yuba Power
Products.26 In Greenman, Justice Traynor held that strict liability
would be imposed upon manufacturers of defective products. It was
to be imposed by courts as a matter of tort law, not by implied
warranty as a matter of contract law. Since the claim was now to
be perceived as one brought in tort, privity was not required.
Furthermore, as it turned out, strict liability in tort also meant
that the plaintiff’s claim would not be barred by the defendant’s
contractual disclaimers or limits on liability. Dean Prosser,
drafting the Restatement Second of Torts, picked up Greenman’s
idea and incorporated it in a new section, § 402A; that section
provided that if a product was defective and the defect caused
harm, liability would be imposed upon the product’s manufacturer
and distributors, regardless of their fault or the existence of
privity. Courts widely adopted § 402A and regarded it as their
guide, philosopher, and friend.27
Rationales for Strict Products Liability
Current thinkers tend to emphasize one of two or three
rationales for holding a manufacturer or distributor strictly liable
for defective products. The main ones are: (1) enterprise liability,
(2) deterrence or economic efficiency, and (3) justified consumer
expectations. All have their supporters, and courts have stated
these rationales occasionally, along with some doubtful
variations.28
Compensation, loss spreading, or enterprise liability. This line of
reasoning holds that manufacturer liability is socially desirable as
a means of spreading losses that would be a hardship upon
individuals but that can be passed on by enterprises through
insurance and increased prices.29 A different version emphasizes
that strict liability is just in imposing liability for harms that are
statistically associated with the enterprise. This view is that the
enterprise should “pay its own way.” This view is easiest to sustain
when safety does not require care by the product user.
Deterrence, greater safety. This view holds that manufacturers
will tend to make products safer if strict liability is imposed. This
rationale is usually grounded in economic analysis. It is sometimes
associated with the idea that liability will require manufacturers of
products either to make them safer or to raise prices, and that
either
802
action would promote safety. Higher prices would promote

safety because the higher prices would reflect true costs (including
losses resulting from injuries) and buyers, to save money, would
often seek cheaper substitutes, which would tend to be safer.30 A
related proposition is that the manufacturer is, or sometimes is, in
the best position to weigh risks and utilities and is therefore the
“cheapest cost avoider.”31 It has also been suggested that the cost
of contracting for appropriate safety and the cost of regulation may
be so high that it may be efficient to decide after injury whether
the defendant should be liable,32 which of course is the common
law method.
Consumer reliance on representations. The rationale here is that
manufacturers at least implicitly represent their products as
healthy and safe, and consumers are entitled to rely upon that
appearance.33
Decline of Strict Liability Theory
As the cases worked out the details of strict liability, many
observers began to think that strict liability for design defects, as
distinct from occasional product flaws, was wrong in principle.
Indeed, many came to believe that the courts were often using the
language of strict liability but effectively determining liability on
negligence standards. Opponents of strict-liability language and
strict-liability results, along with perennial defendants, gradually
developed a critical mass. In 1973, James A. Henderson, Jr.,
published a strong attack on any kind of judicially imposed liability
for design defects.34 Others, reinforced by Henderson’s stream of
articles on products liability, added their criticisms.35 By 1979 the
Commerce Department published a “Model Uniform Product
Liability Act” as a potential guide to the states and aimed mainly
at clarifying and limiting liability.36 Principally in the 1980’s,
many states passed products liability statutes limiting liability in
one regard or another.
In 1998, the American Law Institute published the Restatement
Third, Torts: Products Liability. The Products Restatement drops
all references to strict products liability. Its view is that courts
have mostly come to apply negligence standards in determining
design and warning defects, even when they maintained the
language of strict liability. The effect, although not the language, of
the Products Restatement is that strict liability is retained when it
comes to manufacturing defects, but negligence or something very
much like it is the test of liability for design and warning defects.37
803
The history is certainly not yet complete. Courts that have
developed products liability jurisprudence grounded in strict
liability language or theory may continue to use the language and
concepts of strict liability, even if they obtain results that are
consistent with the Products Restatement’s fault-oriented
approach.38 Some courts continue to base their analysis on the
Restatement Second of Torts § 402A on which strict liability was
erected, sometimes without even citing the newer Restatement.39
Similarly, a court may follow particular comments of the older
Restatement, in spite of a different approach in the newer one.40
Or again, courts may retain a consumer expectations analysis
although it is generally discarded in the Products Restatement.41
And in some cases, courts that retain strict liability theory may
obtain results quite inconsistent with negligence theory, as with
statute of limitations or comparative fault issues. Doctrinal
complexity of this sort is perhaps unsurprising in an area of such
great economic and moral importance.
§ 33.3 The Economic Loss Rule: Stand-Alone
Economic Harm
In all but a few states,42 when a product’s defect causes
commercial or economic harm without causing physical harms to
persons or to property that is not part of the product itself, courts
generally exclude tort claims for strict liability and negligence,43
and perhaps even for fraud.44 For example, if the product ceases to
be usable for its intended purposes45 or if it sets itself afire,46 the
plaintiff has economic loss, but no physical harm has been done to
persons or to other property that is distinct from the product itself.
That leaves the plaintiff only with whatever claims she can
establish
804
under the contract or warranty. If the contract excludes or

limits liability,47 or if the statute of limitations has run on the
contract claims,48 the plaintiff has no viable claim at all.
The economic loss rule does not bar tort recovery for economic
losses resulting from harms to persons. For instance, a defective
product may cause a consumer’s death, leaving her dependents to
sue for their loss of support. That is an economic loss, but it is
treated under the ordinary personal-injury rules and not excluded
by the economic loss rule. The same is true with harm a defective
product causes to “other property.”49 If a defective automobile
blows itself up, the economic loss rule governs the claim, leaving
the owner to sue on warranty or not at all. But if the defective
automobile also blows up an adjacent home, the homeowner can
claim in tort for the damage to the home, since the home is “other
property” and not the product itself.50
B. TORT LIABILITY FOR DEFECTIVE PRODUCTS
Whether a product is in some way defective remains the most
central issue in products liability litigation. Section 402A of the
Restatement Second imposes strict liability only for harm caused
by products that were defective and unreasonably dangerous.51
The Restatement of Products Liability agrees that liability,
whether or not it is strict, requires a defect in the product.52
Under § 402A, the burden is upon the plaintiff to prove that (a)
the defendant was in the business of selling products, (b) he sold or
otherwise supplied the product in question, (c) the product was
expected to and did reach the consumer without substantial
change, (d) the product was defective when it left the defendant’s
hands, and (e) the
805
product’s defect was a factual cause53 of physical harm54 to the

plaintiff55 and (f) a proximate cause as well.56 The more recent
Restatement of Products Liability does not use the terminology of
either strict liability or negligence, but in effect it requires the
same essential elements and adds that in the case of claimed
design and warning defects, the risks of harm must be
foreseeable.57
Danger and negligence. Under § 402A, the plaintiff can show a
defect in a product without showing negligence of its
manufacturer.58 The focus, as courts have said many times over, is
upon the condition of the product, not the conduct of the
defendant.59 Thus the defendant is liable for a defective product
even though he is entirely without fault.60 At the same time, the
mere fact that a product is dangerous does not render it defective.
Knives are not defective merely because they are sharp, nor guns
because they propel projectiles.61 The Second Restatement tried to
capture this idea by saying that the product must be both
unreasonably dangerous and defective.62 The point of requiring
unreasonable danger was not to import negligence thinking; it was
rather to insist that risky products are not necessarily defective
and that a defect is indeed required.
After the promulgation of the Second Restatement’s § 402A,
courts and writers began to think that three types of product defect
should be distinguished from one another. These were (1)
manufacturing defects or production flaws,63 (2) design defects,
and (3) information or warning defects, also called “marketing”
defects. These categories are now generally recognized and applied
in most courts.64 Courts initially attempted to retain the language
of strict liability for all these claims, but they increasingly used
806
negligence principles and approaches to decide design and

warning defects claims, leaving strict liability to cases involving
manufacturing defects.
Manufacturing defects. A product has a manufacturing defect
when it disappoints consumer expectations by departing from its
intended design.65 A manufacturing defect is usually a random
failing or imperfection,66 because the defect lies in the production
or distribution of the particular item, not in the design of the entire
product line. Examples of manufacturing defects include the soft-
drink bottle that explodes because of a microscopic crack in that
particular bottle,67 a blade of an electric saw that shatters because
the metals in the blade are not fully bonded together,68 and food or
drink that is contaminated with foreign or dangerous matter.69
The manufacturer or other distributor may be held strictly liable in
such cases for harm caused by the manufacturing defect. For such
claims, the product is tested against the consumer’s reasonable
safety expectations. For example, consumers reasonably expect
that food will not be contaminated, so strict liability is imposed
when it is.70 The manufacturing defect cases justify strict liability
most readily because the flawed product violates the intention of
both the manufacturer and the consumer to sell and buy a
standardized product with standard value, utility, and safety
features.71
Design defects. In contrast to the manufacturing defect that
unintentionally appears in isolated or occasional product items, a
design defect occurs when the intended design of the product line
itself is inadequate and needlessly dangerous.72 If an automobile is
designed in an unsafe and defective way, the entire product line is
defective, so the potential for liability in design defect cases can be
very great indeed.73 “Design” includes chemical formulations and
natural, inherent characteristics of a product such as asbestos.74
Prescription drugs that risk cancer when others drugs could
provide the same benefit with less risk are defectively designed.75
Badly conceived products that carry needless danger are designed
defectively. For example, a powered machine furnished
807
without a readily available safety device,76 an off-road vehicle

with a roll-bar that doesn’t protect against end-over-end rolls,77
and an electric pot that cooks liquid hot enough to destroy a child’s
skin for a lifetime but isn’t equipped with a lockable lid78 are all
defectively designed products.
The design defect, like the manufacturing flaw, may result from
negligence, but under the rule of Restatement § 402A and many
cases that followed it, the liability was said to be strict. The
plaintiff was thus not required to prove negligence. As will appear,
however, courts have now generally adopted a risk-utility test to
determine whether a harmful design is also a defective design.79
When a risk-utility test is applied, the courts seem to be requiring
negligence or at least some similar species of fault. The point is
controversial, but the Products Restatement adopts the risk-utility
test of defectiveness and discards the strict-liability way of looking
at design defects.80
Marketing defects—warning and information defects. Some
products are reasonably safe and not defective if they are
accompanied by a warning of their dangers or by information
needed to use them safely. Those same products may become
unreasonably dangerous and defective if no information explains
their use or warns of their dangers. Such products suffer from
information or warning defects. For example, it is perfectly
reasonable to market full-strength glucose, but since it is
dangerous to babies unless diluted, the manufacturer should not
market it in a baby bottle with a nipple, or if it does, must give
parents a warning to dilute it.81
—express warranty breach. Express warranties and
representations of fact set their own standards. If either the
warranty or misrepresentation creates a reasonable expectation
about the nature or performance of the product and plaintiff is
injured because the product does not meet that expectation, the
warrantor is subject to liability, either because the product is
defective as judged by the seller’s own warranty or because no
separate defect is required.82 The plaintiff must rely on the
warranty, but not necessarily by purchasing the item; it is enough
if he uses the product in reliance on the warranty.83 A warranty
may occur in any kind of communication to the buyer, including
those in advertisements,84 in owners’ manuals,85 in the
manufacturer’s ratings for strength or use86 and others.87 The
primary questions in express warranty claims are whether the
communication is a warranty, whether its scope covered the
characteristic that caused injury, whether it was breached,
whether the plaintiff relied, and what harm
808
resulted because the warranty was breached. The fact that the
product is not defectively designed or manufactured is irrelevant;
the “defect” at issue is its failure to meet the standards expressed
in the warranty or representation itself.

Consumer expectations test under § 402A. The test of
defectiveness under § 402A is the consumer expectations test.
Under that approach, the product is defective if, considering its
reasonably foreseeable use, it left the seller’s hands in an
unreasonably dangerous condition “not contemplated by the
ultimate consumer.”88 For example, consumers rightfully expect
that food will not be contaminated with foreign matter89 or even
with some inappropriate and dangerous part of the food item such
as a shell in pecan candy90 or a bone in a “boneless” meat dish.91
Application. The consumer expectations test reflects the
contract side of strict liability, derived from its warranty history.92
It may also reflect the fact that manufacturers make a good many
representations about their products, sometimes directly, and
sometimes by the product’s appearance or by soothing words
designed to inspire confidence.93 The test has worked especially
well in the case of non-obvious product flaws, as distinct from
design defects. If the grocer displays cartons of milk, the buyer has
every reason to think she is buying milk and not milk with human
toes in it. The seller in turn knows the buyer’s expectations. Both
parties understand that the seller is to provide pure milk, not that
he will merely exercise care. Even if the producer could not
discover the impurity, liability is appropriate.94
Products Restatement’s general rejection of the test. The
Products Restatement rejects any general use of the consumer
expectations test, reserving it only for food95 and to a limited
extent used products;96 in all other cases, the consumer’s
expectation is merely one factor to consider in determining
whether a product is defective.97 Some
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commentators have disfavored the Products Restatement on

this (and related) points, partly because the consumer expectations
test is sometimes regarded as a consumer-favorable test, while its
chief rival, the risk-utility test, is regarded as industry-favorable.98
But as will be seen, either of these tests can assist the plaintiff in
some cases and defeat the plaintiff in others.
Many courts have adopted and applied the consumer
expectations test in products cases, brought both on breach of
warranty99 and on strict tort liability theories.100 Despite its
shortcomings,101 a few states retain the consumer expectations test
as the exclusive test even in design defect cases,102 and many
others allow its use in conjunction with risk-utility balancing.103
Some states give the plaintiff the option to use risk-utility
balancing if the test aids in determining consumer expectations, or
if the consumer expectations test alone does not prove defect.104
Some allow the plaintiff to use the consumer expectations test
where the defect is relatively simple, but force the use of a risk-
utility test otherwise.105 Others use the consumer’s expectations,
not as a test, but as only one factor among several used to
determine a product’s defectiveness.106 Some allow the parties to
offer evidence that would support its side of the case on either
theory, and hold that the trial judge should instruct the jury on
either consumer expectations, or risk-utility balancing, or both, as
the parties wish, as long as the evidence supports the test.107 In
short, the consumer expectations test remains widely used, despite
its virtual deletion from the Products Restatement.
810

The plaintiff who asserts a manufacturing defect need not prove
that the manufacturer or distributor was negligent. However, the
plaintiff must prove by a preponderance of the evidence that (a) the
product was defective (b) at the time it left the defendant’s hands,
(c) that it was expected to and did reach the consumer without
change, and (d) the product caused harm.
The plaintiff may show a defect by direct evidence that points to
the defect and identifies it as a departure from the defendant’s
intended design.108 For example, evidence that parts in a tool had
measurements outside the tolerance prescribed by the defendant’s
own specifications shows a manufacturing defect.109 Similarly, the
plaintiff might show that a hand tool or a scaffolding plank had
unintended cracks likely to cause it to break, or that food contained
dangerous foreign matter. Such evidence of specific, identified
defects might be made by direct observation or through expert
testimony.
In many cases, however, the plaintiff seeks to prove a defect
circumstantially by evidence that the product malfunctioned or
miscarried in a way unlikely to occur if the product had been
properly made. Sometimes courts say that a mere malfunction does
not itself prove a defect.110 Dozens of other opinions have said that
the plaintiff need not prove a specific or identifiable defect but may
rely upon circumstantial evidence somewhat analogous to the
evidence presented in a good res ipsa loquitur case.111
Neither statement is to be taken as a rule of law for all
manufacturing defect cases. The effect of a product’s malfunction is
case-specific, because malfunction sometimes tends to show a
defect and sometimes not.112 Evidence that a product malfunctions
is sufficient to show a manufacturing defect when either expert
testimony or common experience tells us that, under the
circumstances, the malfunction is probably inconsistent with a
properly made product.113 For instance, if a new tire blows out and
causes injury when inflated to normal pressure for the first time,
the trier can conclude that a defect was the likely explanation.114
On the other hand, if the product has been subjected to a number
of forces that would cause a well-made product to malfunction, the
inference of a product defect may disappear altogether.115
Consequently, the plaintiff
811
must ordinarily show not only a malfunction, but must also

negate the probability that other forces caused it.116 The judicial
problem is to assess evidence in each case, and close cases can
produce results in either direction.117
Defect when product left defendant’s hands. The plaintiff may
need to negate outside forces affecting the product for another
reason: to prove that the defect existed at the time the product left
the defendant’s hands.118 For example, evidence showing that the
plaintiff handled a glass jar of peanuts carefully at all times and
that it was stored in a safe place in her home tends to show that
when the jar shattered in ordinary use its defect must have been
present when the defendant made the jar, and was not introduced
later.119 Evidence that a coffee maker that allegedly caused a fire
was packed in a box with styrofoam when it was purchased, and
remained in its box until the night before the fire, and appeared to
be in good condition when the plaintiff took it out of the box, would
lead a reasonable jury to conclude that the product defect that
caused the fire already existed when the coffee maker left the
manufacturer’s hands.120 Expert evidence may also point to the
manufacturing process as the source of the defect.121
Causation of harm. The existence of a defect when the product
left the hands of the defendant often carries with it the reasonable
conviction that the defect also caused the harm of which the
plaintiff complains, but causation is analytically a separate item
and one not to be overlooked. For example, when an automobile
bursts into flames in the plaintiff’s garage, the circumstances make
it plausible to believe the car was defective. But if the owner claims
lung damage from the smoke, the mere fact of the malfunction does
not prove that damage, much less the amount.122 Once again,
expert testimony may be helpful in resolving this issue.123
812
§ 33.8 Problems with the Consumer Expectations

Test: Open and Obvious Dangers and Other
Difficulties
The consumer expectations test may work best in cases
involving manufacturing flaws rather than design defects.
Although many courts have approved and continue to use the
consumer expectations test even in design defect cases,124 the test
poses special kinds difficulties in those cases.
(1) Vagueness and ambiguity. First, the detailed structure of
the consumer expectations test has not been worked out in the
cases and to a large extent it is vague or ambiguous where it is
most needed.125 Although the consumer expectations test seems to
appeal to a reasonable consumer who might be thought to resemble
the objective reasonable person in negligence law, sometimes
writers seem to assume that the knowledge of the particular
injured person, rather than an objective consumer, is the test.
Another uncertainly lies in the level of abstraction by which
expectation is judged. Must consumers expect particular safety
devices, or, at the other extreme, only expect that the product will
be generally safe?
California has held that a general expectation that the product
will be reasonably safe is not good enough; some expectation more
specific than that may be required.126 And the consumer
expectations test may not work so well when safety depends upon
complex, scientific, or technical information.127 On the other hand,
it may work well when widely-shared, well-defined “everyday
experience” leads to somewhat specific safety expectations128 that
can be judged by the jury without expert testimony about what
consumers might expect.129 A new bridge should not fall when the
first car crosses it, although we need no test at all to tell us that.
(2) Overbreadth. A second problem with the consumer
expectations test is that it may be overbroad.130 If the test means
that any injury consumers would not expect—say an unpredictable
reaction to a new drug—demonstrates a product defect, liability
would
813
follow from almost all product injuries. Although some

advocates prefer this kind of total liability, tort law has never gone
that far.
(3) Consumer’s knowledge of dangers precluding liability. A
third problem is perhaps the most severe: the consumer
expectations test can foreclose liability for unnecessarily dangerous
products if consumers know of the product’s dangerous quality. For
example, a cigarette lighter can be made child-resistant, but if
consumers do not know that, they at least understand that
children might use the lighter and cause fires and burns. The
consumer’s ignorance of safer designs hardly seems like a good
reason to deny liability if a safer design is in fact cheap and useful,
but the consumer expectations test has been used in just that
way.131 In the case of tobacco, it is argued that consumers already
know that cigarettes are unhealthy, perhaps deadly. Consumers
thus do not expect safety, so ordinary cigarettes are not defective
under the consumer expectations test.132 On the same rationale, a
cigarette is not defective under the consumer expectations test
because it starts a fire when left burning in a chair.133 Even when
the product is not generally known to be dangerous, the product’s
dangers may be apparent to the consumer when the product is
purchased or used. This is most likely the case when the product is
badly or dangerously designed, as where it obviously lacks safety
devices. In such cases, courts once thought that the product was
not defective under the consumer expectations test and some still
do.134
The open and obvious nature of the danger is no doubt a factor
in determining design defect, but not necessarily a conclusive
one.135 It is best applied when the plaintiff can see the nature or
structure of the product and that structure is directly related by
everyday experience to the danger in question, and the plaintiff
has full choice whether to confront it. For example, it might make
sense to say that the dangers of a convertible automobile are
obvious, at least once the consumer envisions an overturned car,136
and equally to say that an officer who wears a bullet-resistant vest
must recognize the obvious fact that she remains exposed to
projectiles in areas not covered by the vest.137 These are cases in
which the consumer need not synthesize information or make a
series of deductions in order to perceive the existence and extent of
danger, and in which the consumer knows both the nature and
extent of the risk.
814
But some courts have thought that the consumer expectations

test goes much further. They believe that the test would bar the
plaintiff whose work required her to use a machine that lacked a
safety device, because it would be “obvious” that the safety device
was not present. For instance, some courts have said that the
operator of a bulldozer not equipped with a canopy or cage would
understand the danger that bulldozed trees might fall upon the
operator.138 Courts have also held that workers who did not
purchase the dangerous machine and who had little choice but to
face its dangers would have no claim if its dangers were open and
obvious to the employer or other purchaser.139 Similarly, children
have been denied recovery if the danger was obvious to their
parents or the product was safe for the intended adult use.140
When coupled with the open-and-obvious-danger rule, the
consumer expectations test can defeat otherwise sound claims for
strict liability.141 In particular, some products are needlessly
dangerous and could be made safe quite cheaply. Workers,
children, and bystanders who are injured by products may lack any
real choice in facing their dangers. Even if all product-injured
people had full information, free choice, and the market power to
reject dangerous products, the open-and-obvious-danger rule does
nothing to encourage the manufacturer to provide safer products,
as many courts have observed.142 For this and similar reasons,
most courts have wisely rejected any automatic application of the
open-and-obvious-danger rule.143 Instead, the obviousness of the
danger in a design defect claim is merely one factor in determining
whether a defect exists. Such a view suggests, however, that
consumer expectations are always only part of the test of liability.
Courts and many commentators have recognized for some time
that the consumer expectations test covers both too much and too
little, potentially imposing liability for sound products and
excluding liability for needlessly dangerous products.144 Largely as
a result of the work of Page Keeton145 and John Wade,146 many
courts came to believe that an additional test of strict liability was
required. A number of courts have adopted a risk-utility test of
defectiveness, especially where the plaintiff alleged a design defect
815
rather than a manufacturing flaw.147 Statutes also sometimes
prescribe a risk-utility test.148 The Products Restatement likewise
adopts a similar system.149 Some courts adopt the risk-utility test
as one part of a two-part test which allows the plaintiff to show a
defect in the product’s design if the product fails either the risk-
utility test or the consumer expectations test150 or as one of a
series of factors to be considered in determining whether a product
is defective.151
Under the risk-utility test, the risks of the product as designed
are balanced against the costs of making the product safer; costs of
making the product safer include any loss of product utility. Risks
of the product include not only the likelihood of harm but also its
magnitude. Dean Wade once listed seven factors and courts have
often referred to them for guidance: (1) the usefulness and
desirability of the product; (2) the probability and magnitude of
potential injury; (3) the availability of substitutes; (4) the
manufacturer’s ability to eliminate the unsafe character; (5) the
user’s ability to avoid danger; (6) the user’s probable awareness of
the danger; and (7) the manufacturer’s ability to spread the loss.152
Except for the seventh,153 these factors are essentially those
routinely considered in determining negligence.154 Given the use of
a risk-utility test, nominal strict liability now appears to most
observers to be ordinary negligence liability traveling under the
name of strict liability.155
Risk-utility assessments are often straightforward and simple,
and where reasonable people could differ on the evidence, the jury
determines the risk-utility balance, just as it does in negligence
cases.156 Suppose a manufacturer produces an industrial press
that delivers 60 tons of force. Such a press creates a risk that the
operator’s hand may be crushed if the press is accidentally
activated when the operator is handling material in the press bed.
The manufacturer can cheaply eliminate the risk by designing the
press so that it can be activated only when the operator presses
two separate buttons away from the press area. A jury could easily
find that the press is defective under the risk-utility balancing test
because a large reduction in risk can be
816
achieved at a relatively small cost.157 Conversely, if the risk

were low and the cost of avoiding it high, the product would not be
defective, and the defendant would not be liable either on a
negligence or a “strict liability” theory.158
The Products Restatement and the reasonable alternative design
requirement. As noted above,159 many courts adopting the risk-
utility test also retain the consumer expectations test, allowing the
plaintiff to recover if a product defect can be shown under either
test. The Products Restatement, however, endorses the consumer
expectations test only with respect to food160 and in a limited way
with used products.161 For other cases, the consumer expectations
test is merely one factor to consider. In design and warning defect
claims, the Products Restatement indirectly requires a kind of risk-
utility balancing. With limited exceptions, it also requires the
plaintiff to show that the manufacturer could have avoided or
reduced the danger of the product by adopting a reasonable
alternative design.162
Similarity to or identity with negligence. After the adoption of
the risk-utility test for design defect cases, liability remains strict
for product flaws or manufacturing defects, but looks like ordinary
negligence liability in the case of design defects. However,
depending upon the precise rules adopted, some differences
between products liability and negligence liability might remain.
For example, in products cases the burden of proof might be shifted
to the defendant,163 rules of evidence might be different,164 and
defenses that apply to negligence claims might be rejected.165
Products cases could also differ from ordinary negligence cases if
the manufacturer could be held liable for unknowable risks in a
design.166 A few states have adopted one or more of these
distinguishing rules,167 but in the main the courts appear to use
the risk-utility balance as they do in ordinary negligence cases.
In a design defect case brought on a risk-utility theory, the
plaintiff in most states has the burden of proving that the design
was defective and that its defective character was both a factual
and proximate cause of the plaintiff’s injury. The plaintiff’s burden
on the defect element may be met easily if the product’s design is
manifestly too risky in the light of its low utility.168 The plaintiff
may also show a defect in the product by
817
showing that its design violated a safety statute as to risks the

statute aimed to prevent.169 Sometimes it is said that a product’s
dangerous malfunction may itself suffice to show a defect, as where
the brakes fail on a new car,170 but more likely such proof will
show a defect in manufacture, not in design.171
Estimates of risks and utilities. In the great majority of cases,
the plaintiff must provide evidence from which the trier can
reasonably estimate risks of the product’s design and the utilities
or advantages that would be lost if it were made safer.172 That
burden does not necessarily mean that the plaintiff must adduce
either quantified or expert evidence.173 Juries will frequently be
able to estimate dangers and benefits of a product design based on
descriptions of familiar products or familiar kinds of risks. For
example, the jury could easily conclude that sharp, protruding,
propeller-like blades on a hubcap would be unreasonably
dangerous to anyone who might accidentally come into contact
with the spinning blades in a vehicular accident or otherwise.
Jurors could also conclude that the utility of such blades is
virtually zero, at best serving only someone’s peculiar aesthetic
sense by creating serious risks of harm to others.174 In such cases,
the plaintiff’s burden is satisfied without any special testimony
about the degree of risk or the lack of utility.
Expert testimony. An expert’s quantified or unquantified
estimates of the risk, the feasibility of an alternative and safer
design,175 testimony about the benefits of the product, and
testimony about costs of obtaining greater safety would all be
relevant.176 An expert’s testimony that the defendant’s product is
unsafe for specific reasons and that safer products are actually
available should ordinarily suffice to show a defect.177 To the
extent that the plaintiff must show a feasible alternative design or
that the defendant’s design was a cause in fact of the plaintiff’s
harm, expert testimony may be required as a practical matter. In
that case, rules that permit judges to exclude expert testimony
they consider unreliable may defeat the plaintiff’s claim.178
Cash costs. Sometimes the cost of greater safety can be spelled
out in testimony as cash costs. Evidence showing exceedingly small
costs to avoid an occasional horrifying
818
injury may suffice to get the plaintiff past a summary judgment

or directed verdict. In the Ford Pinto case,179 the plaintiff was able
to show a number of items that could have helped prevent the
Pinto’s eruption into flames upon a mild impact. Some of the safety
improvements would have cost as little as $1.80 per car, and
although a number of improvements might have been required to
insure safety, the totals seem small in comparison to the terrible
death and suffering that Ford risked. In some cases even general
testimony that costs of a safety device would have been small has
been sufficient.180 The fact that costs of better safety are small
does not establish that the product is defective, because the risk of
the product may be even smaller than the costs or the utility of the
product may be very great.181 Testimony about the cost of safety is
not the same as testimony about the profits of the manufacturer,
which would not normally be admissible except on the issue of
punitive damages.182
Inferring reasonable costs. Evidence that other products have
safer designs should usually suffice to show that a safer design is
feasible, at least in the absence of specialized purposes for the
defendant’s design.183 In this respect, the use of safer designs by
other manufacturers or by the defendant on other models
resembles evidence of custom in an ordinary negligence suit. At the
very least, a widespread practice tends to show that the customary
practice is feasible, even though the custom does not set the
standard of care.184
Costs in loss of productive utility. Cash costs are not the only
costs associated with getting a safer product. If adding a safety
feature to a product reduces the product’s capacity to function, that
also is a cost.185 A bullet-proof vest for police officers would protect
more of the body if it were a full-length coat, but only at a
considerable loss of utility because such a design would restrict
movement at the very time agility might be most needed.186 If
industrial machinery can be made safer only by slowing it to half
speed, the costs in reduced production may be quite high.
Similarly, a safety improvement in some products used in the
workplace may impose costs for re-training and supervision.187
Costs in increased risks to others. Still another kind of cost that
might attend a product’s improvement is the cost of new risks the
improvement would introduce.188
819
Suppose the defendant manufactures a drug that saves victims

of a certain kind of cancer but risks blindness to one in a million
people. The drug could be reformulated to eliminate the risk of
blindness, but the reformulation would introduce an even greater
risk of total paralysis. In that case, the new drug would be safer
with respect to blindness, but at the cost of risking even more
injuries to others. Thus present drug, with its small risk of causing
blindness, probably has greater utility than the alternative, with
its high risk of causing total paralysis. A simpler example, taken
from a Texas case, is where defendant manufactured a ladder for
use with a trailer, which was also manufactured by defendant.
Plaintiff fell from the ladder’s top rung and claimed that it should
have had the two top rungs removed. But removing those two
rungs, while it would have prevented plaintiff’s injury, “might also
increase the risk of injury to others who might need those rungs as
a failsafe handhold” and “could cause the ladder to bend or become
unstable under pressure.”189 Given a low risk of injury on the
ladder, its design has more utility than the proposed alternative,
which adds additional risks.
Proving presence or absence of risks. As in ordinary negligence
cases, issues about risk fall into two large categories. The first is
associated with probability and foreseeability: how likely is it that
the product will cause harm? The second is associated with the
magnitude of the harm likely to befall a victim if harm in fact
results. A risk that has a low probability of occurrence might
nevertheless represent a defect in the product if the harm
threatened is devastating bodily injury or death.
Foreseeability of harm and defectiveness. Courts and juries have
routinely made judgments about foreseeability of harm in deciding
negligence issues, frequently on the basis of ordinary experience in
life and without any special evidence. If the product’s design does
not create any foreseeable risk of harm, or the plaintiff has failed
to persuade judges that harm was foreseeable, the product is not
defective under the risk-utility test, even if greater safety was in
fact possible.190 Some decisions have clearly demanded evidence
about the magnitude of the risk and the utility of proposed
alternatives, although quite possibly those decisions are meant to
be nothing more than assessment of the evidence in particular
cases.191 But in some cases the risk is demonstrable; anyone can
foresee that harm can result when workers must place their hands
in or near moving presses that are not equipped with safety
devices.
Prior similar injuries. In other cases the plaintiff may
sometimes be able to show both the risk and its foreseeability by
proving that similar injuries had occurred before and that the
manufacturer knew it.192 Evidence that in one year small objects
or toys caused eleven choking deaths in small children does not by
itself show high probability that such harm will occur, but it is
enough to show that brightly colored blocks less than an inch wide
are dangerously defective for small children when slightly larger
blocks can easily avoid the risk.193 In some cases the parties can go
further and provide actual
820
estimates of probability. The risk of a needle-stick injury with a

medical catheter may be demonstrably small, the risk of an AIDS
infection from a needle stick even smaller.194 Sometimes, estimates
are not quantified in any formal way and courts can only identify
factors that tend to reduce or increase risk. For example, the
presence of an effective warning may reduce the risk that would
otherwise be imposed by a product, but an ineffective one may
not.195 Likewise, danger may be so obvious that users will be likely
to protect themselves, leaving only a small net risk.
Obviousness bearing on product’s risks. The plaintiff is no
longer automatically barred in all cases merely because the
product’s danger is open and obvious.196 But obviousness of danger
bears on the product’s risks because a product that is excessively
dangerous when its dangers are hidden may be much less
dangerous when its dangers are known.197 Harm is less likely to
eventuate if the user is aware of danger and can protect herself.198
And equally, if the plaintiff will foreseeably encounter the risk in
spite of its obvious character, liability may still be appropriate.199
The manufacturer’s warnings are likewise relevant as bearing on
the user’s awareness and ability to avoid danger200 and thus on the
likelihood of harm. So if the manufacturer can expect that people
will generally recognize the risk and either avoid it or take feasible
safety precautions, the risk may be so low that the product is not
defective at all. With common everyday objects whose dangers are
not only obvious but well known, courts may even conclude as a
matter of policy that liability should be rejected.201
In many and perhaps most design defect cases, the plaintiff will
have to prove that a safer, reasonable alternative design was
available to the defendant, and that the failure to adopt that
design would have prevented the plaintiff’s harm from
occurring.202 This reasonable alternative design concept, adopted
as a rule in the Products Restatement,203 is perhaps the central
core of the risk-utility balancing test as applied
821
to design defects.204 Under the risk-utility test, a product is not

defective in design unless its design makes harm reasonably
foreseeable.205 Foreseeability of harm, though necessary, is not
sufficient; as the Products Restatement puts it, a product is
defective in design when the product’s “foreseeable risks of harm
could have been reduced or avoided by the adoption of a reasonable
alternative design” and the failure to adopt the alternative leaves
the product “not reasonably safe.”206 While proof of a reasonable
alternative design does not necessarily prove that the product is
defective,207 a plaintiff’s claim may founder for lack of such
proof.208
Much controversy surrounded the Product Restatement’s
adoption of the reasonable alternative design requirement, but
many states now require a plaintiff to prove reasonable alternative
design, either by statute209 or by case law.210 Many other states do
not require such proof, but see the existence of a reasonable
alternative design as relevant, perhaps highly relevant, to the
design-defect inquiry.211 By treating reasonable alternative design
as a factor only and not as determinative in itself, these decisions
may imply that such evidence is not required; sometimes courts
have expressly said that it is not.212 Some courts have been more
broadly critical.213 And two small groups of courts necessarily
reject any flat requirement that the plaintiff prove a reasonable
alternative design: (1) those that apply the consumer expectations
test alone in design defect cases,214 and (2) those that shift the
burden of proof to the defendant to justify that the design’s utilities
outweigh its risks.215 In any event, evidence of a reasonable
alternative
822
design remains extraordinarily important in practice to

persuade the trier of fact that a product is defective.216
Proof. The Products Restatement says that “the plaintiff is not
required to establish with particularity the costs and benefits
associated with adoption of the suggested alternative design.”217 In
line with this, a number of cases have held the plaintiff’s evidence
adequate when experts testified, apparently in general terms, that
a specific improvement would be safer and could be used without
impairing the usefulness of the product or imposing undue costs.218
Many courts are more demanding, however.219 The most stringent
version of the reasonable alternative design requirement requires
the plaintiff to prove, in addition to causation, that the proposed
safer design was, at the time the product was sold, (a)
technologically feasible, (b) economically feasible,220 and (c) safer,
or at least as safe overall, not merely safer in the particular
circumstances causing the plaintiff’s injury.221
Other product designs as evidence of feasible alternatives.
Perhaps the clearest evidence of a reasonable alternative design is
evidence that other products already have safer designs. If a car
roof is weakly supported and deforms downward into the passenger
compartment when a side impact occurs, testimony that other
mass-marketed vehicles have stronger roof-supports that would
have avoided the injury seems to establish prima facie a reasonable
alternative design.222 The defendant’s own use of a safer design for
products it distributes in other countries seems equally to show
that such a design is cost-feasible.223
Expert testimony. The Products Restatement specifically
recognizes that a reasonable alternative design can be established
without adducing expert testimony and that the plaintiff need not
necessarily build a prototype of the proposed alternative. At the
same time, however, it suggests that experts will often be required
to establish the nature and feasibility of an alternative design.224
Indeed, some courts have required that the expert must have
actually built or tested the alternatively-designed product, a
requirement that goes beyond the Product Restatement’s more
lenient formulation.225
823
From the plaintiff’s point of view, the practical requirement of

expert testimony on reasonable alternative design is a serious
impediment to recovery. One reason for this is that the cost of
expert preparation is likely to drive out smaller claims where the
potential recovery is not predictably sufficient to pay the costs of
experts. Another is that, in some courts, expert testimony must
often be buttressed by scientific study that is not likely to be
available when the issue is one of ordinary engineering
principles.226 Finally, the best experts in this area may be already
employed by private industry and more likely to be called for the
defense, whereas plaintiffs may be forced to go to universities or to
private consulting firms where “professional experts” work.227
Subsequent design changes or repairs. The defendant’s own
subsequent design changes might be used to prove that other
designs are feasible. Evidence of a defendant’s subsequent repairs
of a dangerous condition is usually excluded in negligence cases,
but some decisions have admitted it in strict liability claims.228 If a
plaintiff must prove a reasonable alternative design, the
defendant’s own subsequent design change would be highly
relevant to show that a design change was feasible.229
What counts as an alternative design. One of the objections to
the requirement of reasonable alternative design evidence can be
meliorated if it we understand “design” broadly to include constant
features of the product (and its proffered alternative). The
objections can also be meliorated if the court can consider as
alternatives not only a modified product but also a substitute
product.230 If a reasonable alternative design means that the
product must remain the same except for minor tinkering, there
will be few reasonable alternatives, since any substantial
modification will result in a new and different, not merely altered,
product. On the other hand, if a broad conception of the product is
permissible, a wide range of safer functional alternatives or
substitutes might be safer than the defendant’s product.
For example, in the narrow view, asbestos is asbestos; you can’t
change its design and hence there is no reasonable alternative. But
you don’t have to characterize a product by its specific name or its
chemical compound.231 The important design characteristic of
asbestos is that it furnishes very good insulation. If you
characterize asbestos as insulating material, you can find very
good substitutes that can easily count as reasonable alternative
designs. The Products Restatement recognizes this point. However,
adjudication of this point will present some difficulties. If three-
wheeled all-terrain vehicles are unsafe, probably the plaintiff
should be permitted to prove that four-wheeled
824
vehicles could provide a reasonable substitute and would be

safer.232 Courts should be permitted to characterize the product
broadly or, much the same thing, to consider substitute products
that have similar functions233 or those that would be accepted by
consumers as substitutes.234
An alternative: specific-defect proof. Perhaps the plaintiff should
be allowed to show a specific defect rather than a reasonable
alternative design. Design defect claims are certainly more
plausible when the plaintiff can identify the particular defect and
less plausible when the plaintiff can only say that the product
should somehow have been designed not to cause injury. When the
plaintiff can point to specific defects, she can almost always
suggest an alternative design. If the claimed defect is that a
machine’s blades or pulleys keep turning dangerously for minutes
after the machine is shut off, the jury does not need evidence to
conclude that there is some reasonable way to brake the machine
automatically when it is switched off; most people have seen
instant braking on kitchen appliances.235 If an automobile
suddenly accelerates at full throttle and cannot be stopped, it is
probably fair to infer that there is a defect, since other automobiles
do not generally behave in this manner, and fair, for the same
reason, to infer that something reasonable can be done to prevent
such a defect.236 Unless the defendant comes forward with
convincing evidence that costs or other disutilities are significant,
it is reasonable enough to conclude that the brakeless machine is
defective. It is not necessary to require the plaintiff to invent a new
design for the defendant’s business.237
§ 33.12 Shifting the Burden of Proof in Design
Defect Cases
A small handful of states have shifted the burden to the
defendant to justify the design of a product once the plaintiff shows
that a design feature caused injury.238 The leading case is Barker
v. Lull Engineering Co.239 The plaintiff there was operating a high-
lift industrial loader. The load was high; the loader began to
vibrate as if it were about to tip over. The plaintiff scrambled out
and was injured by lumber falling from the load. The loader had
two design characteristics that made it arguably defective. First, it
had no outriggers to steady it; second, it had no protective canopy
to shield the operator from objects falling from the load. The court
held that the plaintiff could recover if the product was defective
under either the consumer expectations or the risk-utility test.
Under the risk-utility test the plaintiff gained an added benefit:
once the plaintiff proved that “the
825
product’s design proximately caused his injury” the defendant

had to prove that the design was justified under a risk-utility
approach.240
The effect of the Barker holding is that the plaintiff does not
need to prove that the design could have been made safer at a
reasonable cost; instead the defendant must establish that it could
not. For example, a plaintiff who fell from her seat to the floor of a
public bus made a prima facie case against the bus manufacturer
by showing that no hand-hold was within reach of her seat.241
Where the burden-shifting rule is adopted, strict liability under the
risk-utility test does indeed differ from negligence under the same
test,242 because the burden of proof is different. Most courts to
consider it have rejected this approach, however,243 as has the
Products Restatement.244
A product is defective not only when it suffers from a
manufacturing flaw or design defect, but also when its
manufacturer or distributor fails to provide a reasonable warning
about reasonably foreseeable risks of harm.245
Strict Liability vs. Negligence
The jurisprudence of strict liability that developed under the
Restatement Second’s § 402A conceived of warning failures not
merely as negligence but as grounds for strict liability. The theory
was that the product itself was not reasonably safe if it could be
made safer by the reasonable addition of warnings or instructions.
Since only reasonable warnings were required, however, a failure-
to-warn-or-instruct claim always had a strong affinity with an
ordinary negligence claim. The two theories, strict liability and
negligence, would be distinguishable if the manufacturer were
required to give warnings about scientifically unknowable dangers,
but the cases held overwhelmingly to the contrary.246 The result is
that warning claims gravitated toward a negligence approach even
while courts were using the language of strict liability.
826
Under the Products Restatement, the manufacturer’s duty is

only to provide reasonable warnings against foreseeable risks of
harm. Liability is imposed only if the danger could have been
reduced or avoided by the omitted information and if the product
without warnings was not reasonably safe.247 In effect, warning
claims are negligence claims,248 as a number of courts recognize.249
Some courts continue to apply the terminology of strict liability in
warning cases,250 but even so, the actual evidence and analysis
usually invokes negligence principles of reasonableness.251
The Role of and Necessity for Warning
The role of warnings and design safety. When a product is
unavoidably dangerous, a warning permits the consumer to make
informed choices whether to accept the product. When the danger
is avoidable, a warning may reduce the risk or magnitude of harm
by permitting the consumer to use the product with greater
safety.252
Some warnings will predictably fail to induce better safety. A
warning to a worker not to place hands in the operating area of a
machine will predictably fail to protect all workers all of the time
because fatigue, repetitious work, and other elements make it
almost certain that some workers will be harmed. If a reasonably
priced safety device could have been built into the product, the
product is defective in design. In such cases, even the very best
warning does not remedy the design defect.253 If no safety device is
practicable, on the other hand, a good warning must do the whole
job of achieving safety. For example, if an industrial cleaner can be
made safer only by substantially reducing its effective cleaning
power but users can easily protect themselves by using rubber
gloves, an adequate warning may mean that the product is not
defective, although a warning would not suffice if the product’s
danger could be eliminated without cost or loss of utility.
Risk-utility analysis. The Products Restatement subjects
warning defect claims to a risk-utility analysis.254 Under that test,
now commonly used in ordinary negligence and in design defect
cases, it might seem that warnings would almost always be
required, since manufacturers can usually provide them quite
cheaply; even a remote risk deserves
827
a line of print on the product label.255 But it has been argued

that there are costs in providing detail in warnings because detail
takes time for consumers to read,256 and because when confronted
with too much detail, consumers may ignore all the warnings.257 If
true, that is definitely a cost to be considered, but the information-
overload claim does not apply to all warning cases, since added
detail is not always necessary to improve a warning or to change
its misleading characteristics. Where information-overload is
established, however, it raises a genuine risk-utility issue that is
quintessentially one that must be determined on the particular
facts of individual cases. In most instances a case-by-case decision
is required to determine the reasonableness of a warning. Unless
the matter is so clear that reasonable people cannot differ, that
assessment is for the jury.258
Known or obvious risks. One reason a warning may not be
required is that the risks involved are either generally known or
are obvious to a purchaser or user. One function of a warning is to
alert the product user to risks. A warning may not be needed if
people already know of the risks,259 or know of the warning itself,
if given by another up the chain of distribution.260 In this respect,
the warning problem differs greatly from the design problem. If a
manufacturer can make a press that is safe just as cheaply as it
can make one that is dangerous, its choice to manufacture the
dangerous version is unjustified and the machine is defective, even
if its danger is open and obvious.261 But if the machine as designed
is reasonably safe and its unavoidable dangers are known or
obvious, the consumer is already warned by her knowledge so that
reasonable care does not ordinarily require the manufacturer to
provide a separate warning.262 In the case of simple products,
courts sometimes say that there is no duty to warn of obvious
danger.263 The question of obviousness is for the jury if reasonable
people can differ.264 Nevertheless, courts have sometimes
concluded that risks are obvious as a matter of law
828
because rational thinkers would be able to figure them out.265

Such an approach may too readily relieve manufacturers of
warning obligations. Beyond this, warnings may have another
function. They may alert the user to safer alternatives that are far
from obvious. “Do not use meat grinder without its safety
attachment” not only warns of the obvious danger but informs the
user that a safety device is available. In such cases, the fact that
danger is obvious does not negate the need for a warning.266
Whether warnings are defective because they are inadequate is
a question for the jury if evidence would permit reasonable people
to differ,267 but judges often conclude as a matter of law that
warnings in a particular case are adequate.268 Warnings can be
defective in several distinct ways—in factual content; in lack of
clarity of expression or communication; and in the mode of
communication, such as words versus pictures.269
Adequacy of content and expression. Warnings must contain
facts necessary to permit reasonable persons to understand the
danger270 and in some cases how to avoid it.271 Warnings and
instructions for use are not reasonable unless they are of sufficient
clarity and also sufficient force and intensity to convey the nature
and extent of the risks to a reasonable person.272 A manufacturer’s
techniques in promoting the product,273 inconsistencies or undue
qualifications in stating the warning or directions,274 and
depictions of uses that run counter to warnings275 may each nullify
or dilute the warnings provided in printed literature. Unless the
warning taken as a whole is so clear and forceful that it overrides
the dilutions and inconsistencies, the diluted warning may be quite
inadequate.276 Neither the warning itself nor the marketing style
should imply
829
a safety that does not exist.277 The defect in many warnings is

that they are not warnings at all, merely directions. A decal on a
child’s motor bike that says “no passengers” gives no warning that
passengers would be burned.278 Instructions on a high chair to
“secure baby with safety straps” does not warn the user of the risk
that the baby will be strangled if not properly secured.279 Unless
the warning specifies the risk, it may be wholly ineffective, but this
point has been overlooked in some cases.280 When possible harm is
severe, quite specific information may be required.281 A drug
warning about possible blood clotting may disguise rather than
reveal the possibility of a stroke.282
Adequacy of form, location or display. When the warning is
addressed to the user, is should be sufficiently conspicuous and so
located as to attract the user’s attention.283 Fine print won’t do.
Neither will a warning in the wrong place.284 On the other hand,
the mere fact that the warning could be brighter or bigger does not
in itself show that it is inadequate.285
English-only warnings. Children, illiterate adults, and adults
who do not read English cannot be warned by an English-only
label. In a California case, an aspirin manufacturer targeted
Spanish-speaking groups with its Spanish advertising, but its
aspirin contained no Spanish warnings that aspirin could cause
small children severe neurological damage, blindness, spastic
quadriplegia and mental retardation. The court thought that the
legislature, by affirmatively requiring warnings in English,
negatively implied that no others could be required.286 A few other
cases have gone the other way, considering that when illiterate
users are foreseeable, symbols or pictographs may be necessary in
the warning.287 Others see this as simply requiring a case-by-case
inquiry about the reasonableness of the warning, holding that
Spanish-language warnings are
830
not required unless, for example, the manufacturer specifically

markets the product to Spanish speakers.288
Statutes. Increasingly, statutes have required warnings and
have prescribed either content or expression. Sometimes the
statutory requirement is taken to mean that no additional
information can be required by reasonable-care rules. When the
statute is a valid federal statute, it may impose the same result
because it preempts state law altogether and makes federal law
the only law on point. The federal statute requiring warnings on
cigarette packages is like this. It preempts state tort law that
would require a more adequate warning.289 In broader perspective,
the question is whether tort obligations should be decided
exclusively by administrative regulations or statutes where they
exist.290
§ 33.15 Learned Intermediaries and Sophisticated
Users
The learned-intermediary doctrine. A manufacturer of
prescription drugs or medical devices has an affirmative duty to
warn healthcare professionals of the products’ dangers, and equally
has a strong defense if it has fulfilled that duty. The manufacturer
must warn appropriate healthcare professionals such as
prescribing physicians or hospital personnel who use its medical
devices of substantial dangers in the product.291 Where the
plaintiff proves that the manufacturer’s failure to provide an
adequate warning to the intermediary caused her harm, the
manufacturer may be held liable.292 On the defensive side, courts
almost always hold that a prescription drug manufacturer’s
warning to the doctor who prescribes a drug is sufficient to warn
the doctor’s patient as well. If the doctor fails to inform the patient
of the risks, the patient has a claim against the doctor, but not
against the manufacturer of the drug.293 This is usually referred to
as the learned-intermediary doctrine, and it is usually conceived of
as a rule of law rather than a matter of balancing risks and
utilities in each case.294 The rule applies not only to drugs but also
to medical devices and bodily implants that are usually
accompanied
831
by medical advice and supervision.295 Courts have said that the

rule in some way requires them to immunize pharmacies for
failure to warn customers of prescription drug dangers,296 but it
has also been held that the pharmacy does not enjoy that
immunity when liability is asserted on its own express
warranty.297
Exceptions. Three main exceptions to the learned-intermediary
rule appear in the cases. First, a direct warning to the patient, if
feasible, is required in the case of mass inoculations and other
instances of unsupervised dispensation of prescription drugs. This
idea is pretty well accepted.298 Second, when prescription drugs
are advertised directly to the consumer, some courts have said that
the rule should not protect the manufacturer from liability for
failure to warn the consumer directly.299 New Jersey has so held,
with the proviso that if the warning complies with FDA standards
it is presumptively adequate.300 West Virginia, finding that
increasingly common direct-to-consumer advertising “obviates each
of the premises upon which the doctrine rests,” has expressly
declined to adopt the learned-intermediary rule at all.301 Third, a
number of cases have concluded that the rule applies only to
warnings about the general side effects of drugs, not to particular
problems known to the pharmacist, which might include particular
dangers of the prescription being filled (such as an excessive
quantity), or particularized contraindications,302 or the fact that
the FDA has withdrawn the drug from the market.303 This line of
cases essentially recognizes that the learned-intermediary rule
does not and should not shield pharmacists from a basic duty of
reasonable care in a number of situations.
Warning through sophisticated users. In many cases, the
manufacturer or distributor sells goods to people in the trade who
work with such goods regularly or who for other reasons can be
expected to know their dangers. Because the danger is already
known, a warning for the buyer’s protection may not be required at
all.304 In many cases, however, the goods, although sold to buyers
in the trade, will foreseeably be used by or affect others who may
not be knowledgeable. When it is foreseeable that other, less
832
sophisticated users may be endangered, the questions are

whether the manufacturer can omit warnings altogether because of
the immediate buyer’s sophistication, and whether, if a warning is
required, it must be made directly to those who will be
endangered.305 The problem is similar to that presented in the
learned-intermediary cases, but the analysis may be different in
some cases.306
Products sold to employers for use by employees or contractors.
Frequently, the troubling problem of intermediary warning arises
in cases of sales of dangerous goods to employers or to contractors
whose work exposes others to risks from the manufacturer’s
product.307 Many employers are woefully careless about their
employees’ safety. Many remove safety devices to enhance
production; others actively encourage unsafe practices that violate
safety instructions. The prospect that a manufacturer’s warnings
to the employer will be passed on to employees obviously varies
from employer to employer. When neither the employees nor the
employer can be expected to know the risks, however, the
manufacturer must warn someone and the question is whether a
warning to the employer alone will suffice.
At least in theory, the plaintiff has the burden of proving that
the product defect was a factual and proximate cause of the harm
claimed. In warning cases, the plaintiff must show that, had a
proper warning been given, the injury would have been avoided.308
Presumably the plaintiff must also show that the reason a better
warning was needed was to guard against the forces and types of
harm that the plaintiff in fact suffered, and that no superseding
cause insulates the defendant from liability.309
The Heeding Presumption
No warnings. The most common factual cause problem arises
with the question of whether the plaintiff would have both read
and heeded the warning had it been given, or given adequately.
When no warning at all is given, a few courts have said that the
plaintiff must prove that she would have read and heeded a
warning had it been given.310 Many more have been willing to
presume or infer that the plaintiff would have heeded a
warning.311 Similarly where the defendant fails to warn an
intermediary, the
833
presumption is that a properly warned intermediary would

have passed on a warning to the plaintiff.312 Either the
presumption or the inference would normally get the plaintiff to
the jury on the factual cause issue313 unless other evidence makes
it clear that the plaintiff would not in fact have read and heeded an
appropriate warning.314 Perhaps the best ground for invoking the
presumption is that the plaintiff could seldom prove convincingly
that he would have read a warning, so that the manufacturer’s
duty to warn would be effectively avoided in almost all cases. In
this view, the presumption represents a policy decision to enforce
the duty to warn.315
Inadequate warnings, read and unread. When a warning is in
fact given, but is inadequate in its expression or content, the
plaintiff who actually read the warning but did not understand it
can plausibly claim that an adequate warning would have
protected her. However, if the plaintiff failed to read the content-
inadequate warning, it is frequently difficult to see how a more
adequate warning would have made any difference in the outcome.
In such a case the presumption that the plaintiff would have read
and heeded an adequate warning may not arise, or if it arises it
may be rebutted by a finding that the plaintiff did not read the
warning that was given.316 Nevertheless, the evidence may
warrant the belief that even though the plaintiff did not personally
read the label, her employer or co-workers did so, and would have
advised the plaintiff of the dangers if those dangers had been
adequately set forth.317
If the warning’s inadequacy lies in its display rather than its
content, the story is different. In that case, the plaintiff’s whole
point is that an adequately displayed warning would have caught
her eye and she would have avoided the danger. If such evidence is
accepted, courts can apply the presumption in the same way they
apply it where no warning at all was given.318
Rebutting the presumption. In addition to introducing evidence
that the plaintiff did not read the warning that was given,
defendants can attempt to show that the plaintiff would not have
heeded the warning if it had been read. Evidence that the plaintiff
disregarded warnings that he did receive may tend to show that
the plaintiff would likewise have disregarded the “missing”
warning.319 Although the fact that the plaintiff already knew of the
danger does not necessarily show that a warning would not have
834
reminded her, it is at least cogent evidence on the causal

issue.320 When the plaintiff acts out of momentary inadvertence
rather than out of ignorance, the court may conclude that a
warning would have made no difference at all.321 Likewise, if a
proper warning would have been ineffective because the plaintiff
was not aware of conditions that would have made the warning
applicable, a failure to warn would not be a factual cause of the
harm, and the plaintiff could not recover.322
Scope of Risk (Proximate Cause)
Superseding causes323 can sometimes insulate the defendant
from liability for failing to warn.324 More centrally, the injury
suffered must be within the class of injury that the warning
requirement was meant to avoid. For example, the plaintiff, if
properly warned that asbestos might cause cancer, might have
stopped working around asbestos. A failure to give such a warning
could result in liability if the plaintiff did develop cancer as a result
of asbestos exposure. But the failure to provide such a warning
would not result in liability if the plaintiff, not being warned, kept
her job and lost a hand in a job-related machine accident. In that
example, failure to warn would be a factual cause—the plaintiff
would have been elsewhere, not working at the machine, if a
proper warning had been given—but it is not a proximate cause. In
other words, the plaintiff’s harm is not within the risk that a
warning was designed to avoid.
C. DEFENSES
§ 33.17 Contributory Negligence and Assumption of
Risk
Emerging orthodoxy. Differences among the courts make a
statement of the rules of comparative fault and assumption of risk
unreasonably complicated. But mainstream thought now seems to
be more straightforward. That thought in products liability actions
presently holds that (1) conduct amounting to contributory fault
reduces the plaintiff’s damages under the comparative fault rules,
and (2) assumption of risk is now ordinarily regarded as a species
of fault also treated under the comparative fault rules, except that
(3) some “assumption of risk” may turn out upon analysis to be an
obscure way of saying that the product was not defective or that a
superseding cause insulates the manufacturer from liability. The
history, variations, and debates about these rules and their
alternatives provide a more detailed picture.
Comparative fault rules generally applied. The Restatement
Second of Torts provides that contributory negligence, in the sense
of failure to discover a product’s defect, does not bar recovery in a
strict liability case, but that “assumption of risk,” in the sense of a
voluntary and unreasonable exposure to a known danger, does.325
Some courts, under statutory directives or otherwise, continue to
hold that the plaintiff’s fault does not bar or reduce damages.326
With the advent of comparative fault systems in all but a few
states, however, courts and legislatures now usually say that the
plaintiff’s
835
comparative negligence can be raised as an affirmative defense

and applied to reduce damages, both when the plaintiff asserts
negligence and when she asserts strict liability.327 The Products
Restatement adopts this position.328 Not every foible counts as
plaintiff fault, however. For instance, workers who have little
choice but to work with dangerous machinery on the job are not
necessarily guilty of either comparative fault329 or assumption of
risk330 when they do so.
Assumption of risk. What used to be treated as a separate
defense of assumption of risk is now largely subsumed in
comparative fault.331 In products cases, assumption of risk is often
defined as a voluntary and unreasonable encounter with a known
danger. There is no real reason to distinguish this form of plaintiff-
fault from, say, negligently using a product like an automobile.
Thus, the driver who negligently crashes his car and is thrown
from it may be able to show that the car had a defective door latch,
but his damages will be reduced for his fault whether that fault is
denominated contributory negligence or assumed risk.332
However, some courts still treat assumption of risk as a
separate and complete defense, barring the risk-assuming plaintiff
entirely.333 In addition, if the product’s danger is objectively
obvious, the risk it presents may be a reasonable one because users
could reasonably be expected to protect themselves. In that case,
the product may not be defective at all and the plaintiff will be
denied recovery for that reason.334 On the other hand, when the
manufacturer should reasonably foresee that the user will have
little choice but to deal with the risky product, as is usually the
case with machinery used in employment, even an obviously
dangerous product may be unreasonably dangerous and therefore
defective.335 In that case, no good grounds appear for a complete
bar as distinct from a comparative fault reduction in damages.
The known-risk rule. Before the system of comparative fault
was generally adopted, most courts refused to recognize the
defense of contributory negligence in strict liability actions.336
Even after the advent of comparative fault, some courts apply a
similar rule, so that a voluntary and unreasonable exposure to a
known risk can count against the
836
plaintiff as a bar or in reduction of damages but other forms of

plaintiff-fault count for nothing.337 For brevity, this rule can be
called the known-risk rule. The point here is not what does affect
the plaintiff’s claim but what does not.
An example of the known-risk rule is Bowling v. Heil Co.338 The
bed of a dump truck did not return to the down position after the
load had been deposited. A worker put his head under the raised
truck bed and manipulated a lever, whereupon the truck bed fell,
instantly causing his death. Since the jury found that the decedent
was chargeable with contributory fault but had not assumed the
risk, the court refused to reduce recovery for the defect in the hoist
mechanism. On the other hand, if the jury had characterized the
decedent’s conduct as an assumption of the risk, the claim would
have been completely barred.339 And if the court had characterized
the decedent’s conduct as a superseding cause, rather than as
comparative fault, the claim would have been barred as well.340
The failure-to-discover rule. Many courts say that no
comparative fault reductions should be made when the plaintiff’s
only fault is the failure to discover the product’s defect.341 This rule
can be called the failure-to-discover rule. This rule may come down
to saying that the plaintiff is not at fault in trusting the
defendant’s product until the plaintiff has notice that requires
investigation of it. That is ordinarily correct. The plaintiff who
bites into a Mr. Goodbar candy has no reason to inspect its insides
for worms and eggs.342 Consumer expectations, whether a test of
product defectiveness or not, are at least relevant to show that the
consumer behaved reasonably in accepting the product at face
value. Beyond this, it should be said that many less-than-optimal
acts by product users do not appear to constitute plaintiff
negligence. In one case,343 a power saw suddenly started up. The
startled plaintiff moved his hand in response to this unsuspected
event, and in so doing lost his fingers. His movement was not the
best response, but in the sudden danger created by the defect, as in
an emergency, it would be hard to say that he was negligent.
If all plaintiff fault consists of either failure to discover or
voluntary exposure to a known risk, the failure-to-discover rule is
merely a negative statement of the known-risk rule. But it is fair to
say that between the two categories lies a very large group of cases
that do not fit well in either. The plaintiff’s fault in failing to wear
a safety harness while working on high-rise steel girders does not
depend upon either failure to discover a girder defect or upon
exposing oneself to it. In such a case, the plaintiff presumably has
not in fact discovered the girder’s defect that will cause a fall, but
his fault does not consist in
837
failure to discover it; it consists in failure to use a safety

harness that would protect against a fall, whatever its cause.344
Similarly, the essence of the plaintiff’s fault in driving an
automobile while intoxicated does not turn either upon discovery of
a defect in the door latch or exposure to known danger. Likewise,
the plaintiff who discovers no defect at all may be at fault in failing
to follow safety instructions that accompany the product even if the
jurisdiction rejects a defense based on contributory fault.345 In
such in-between cases, the plaintiff’s fault appropriately reduces
recovery.346
Rejecting reductions in defective safety device cases. Some courts
refuse to reduce the plaintiff’s recovery when the product was
defective for the very reason that it failed to guard the plaintiff
against her own momentary lapse, inattentiveness, or other fault.
Many machines expose users to moving parts that can crush a
hand, amputate an arm or leg, or even kill. In each case, the user
can avoid such terrible injuries by staying away from moving parts.
Yet it is entirely foreseeable that eventually almost all users will
be too close to the moving machinery; some will do so because of
inadvertence, some because of confidence born of past good
experience with machinery, some because of job pressures to
produce. Given this foreseeable harm, the machine is easily
counted as defective if it omits a feasible safety device that would
avoid such injuries. These cases illustrate the rule, recognized by
some courts, that when the product should have been designed to
prevent the act or omission that triggers harm, that act should not
count as contributory fault.347 It is a contradiction to say that the
defendant has a duty to provide the safety device but then to say
that in all cases where it is needed, the plaintiff is guilty of
contributory fault.
Deterrence argument for ignoring plaintiff-fault. Among the
arguments for ignoring the plaintiff’s comparative fault in strict
liability cases, the most common is based on the need to deter the
production of defective products. If manufacturers systematically
get a reduction in damages because many plaintiffs will be guilty of
some degree of fault, manufacturers will lack appropriate
incentives to invest in safety.348 This argument asserts that
deterrence operates differentially: when the plaintiff’s damages are
reduced, defendants will be less careful, but plaintiffs will not be
more careful.349 The net result, in this view, would be an increase
in injuries. However, if comparative-fault reductions represent the
right way to account for the plaintiff’s fault in, say, a case brought
for negligent repairs to a building or negligent medical practice, it
is not clear why the
838
plaintiff’s fault should be disregarded in product cases merely

because the defendant’s liability is strict or nominally strict.
Apples and oranges. On a rather different plane, it has been
argued that courts cannot compare apples and oranges—the fault
of the plaintiff and the non-faulty defect of the defendant’s product.
The answer has been to treat the objection as a purely practical
one and to recognize that juries can come up with some kind of
“equitable” (or perhaps intuitive) apportionment of
responsibility. 350 An intuitive approach of this kind will make
meaningful appellate review quite difficult, but as the Texas Court
later said, juries could compare causation rather than fault so that
in strict liability cases the rule is comparative causation rather
than comparative fault.351 The idea seems to be that the causal
role of the defendant’s product can be compared on the same scale
as the causal role of the plaintiff in causing harm.352 The
Restatement of Apportionment prefers the vague term
“comparative responsibility”353 and a system that invites the trier
of fact to consider virtually anything, including mental states, in
assigning responsibility. Under this approach, definitions of
negligence built over generations seem to be of little use.
§ 33.18 Unforeseeable Misuse, Alteration and
Modification
Sometimes courts speak of “misuse” or the “misuse defense” as
though the term refers to a doctrine or rule distinct from the more
familiar concepts of tort law. In truth, the term refers to a pattern
of facts, not a rule of law. Depending on the facts, evidence of the
plaintiff’s unforeseeable misuse may tend to show that (a) the
product is not defective at all; or (b) the defective product was not a
proximate cause of harm; or (c) where the product is defective, that
the plaintiff was negligent.354 Evidence of misuse is not exclusively
relevant to any one of these issues alone. Its probative value on
any of them depends on the facts. Alterations of a product by the
plaintiff can have the effect of misuse. Much the same thing can be
said about risk-enhancing alterations of a product by third
persons.355 In the end, analysis would be clearer if the term
“misuse” were dropped and courts approached the issues of
defectiveness, comparative fault, and proximate cause directly.
839
Misuse Bearing on Product Defect

Unforeseeable misuse. A product is defective in design or
warning only if harm is reasonably foreseeable. Hence the product
is not defective at all if the plaintiff’s unforeseeable misuse is the
sole cause of the harm.356 For instance, if the evidence is that the
plaintiff was injured because the tread separated on a tire
manufactured by the defendant, a tire defect might be the probable
explanation. However, if the defendant can show that the tire was
eight years old and had suffered numerous punctures and major
patches, the inference that the tire was defective at the time it left
the defendant’s hands is considerably lessened, perhaps
destroyed.357 The point of misuse in this kind of case is not that the
plaintiff or a third person was at fault, but that no defect has been
shown. A tire that blows out after its useful life is over simply does
not seem to be defective.358 Whether the evidence is convincing on
the issue of defectiveness of course turns on the facts of the
particular case. For example, misuse that does not cause or
enhance the injury does not ordinarily affect the inference of
defect.359 Since the plaintiff has the burden of proving a defect in
the first instance, misuse in this kind of case, including alteration,
is not properly speaking a defense at all; it is instead evidence that
bears on, and tends to negate, an element of the plaintiff’s prima
facie case.360 Consequently, the burden may remain on the plaintiff
to show the product was not altered or otherwise misused in order
to show that it was defective.361
Foreseeable misuse. Some cases say that foreseeable misuse is
not “misuse” at all. Whether or not that is a helpful locution, the
cases have generally acknowledged that foreseeable misuse does
not negate the defectiveness of the product.362 That is the rule
because manufacturers are obliged to design products and give
warnings with the realities of use in mind. Put otherwise, the
product must be reasonably safe for foreseeable misuses;363 the
plaintiff proves defectiveness by proving that the product was not
reasonably safe for normal use, including foreseeable misuse.364
Children, for example, may be expected to use some products in
dangerous ways, and while manufacturers can sometimes rely
upon parents to protect children, experience teaches
840
that parents cannot supervise children at all times, so that if a

safer design is feasible, the manufacturer should utilize it to
protect against a child’s foreseeable misuse.365
Enhanced injury or crashworthiness cases. An important
example of the rule that designs should take reasonable account of
foreseeable misuse is the case of the overturned or crashed
automobile. Manufacturers do not intend their automobiles to be
crashed, but they do foresee that vehicles will be subjected to
crashes and rollovers resulting from misuse and otherwise.
Consequently the vehicle’s design must take such eventualities
into account. The vehicle need not be crash-proof but it must use
reasonable safety features. If, upon slight impact, a roof collapses,
a gas tank spews burning gasoline on the passengers, or a restraint
system permits occupants to be thrown from the vehicle, the
automobile is not designed reasonably, and it is defective.366 This
rule necessarily means that the manufacturer remains liable for a
proven defect even if other causes contribute to or concur in
causing the injury.367 In particular, the fact that the crash was a
result of the injured plaintiff’s negligence or even his intoxication
goes to issues of comparative fault and proximate cause, but does
not by itself relieve the defendant of its duty to provide a
reasonably safe vehicle.368
Burden of proof in enhanced-injury cases. When the defect does
not cause the impact itself but only adds to the injury, the
manufacturer is subject to liability only for the portion of the injury
that would have been avoided by a non-defective product, if that
portion can be established by evidence.369 Who has the burden of
proving how much the injury was enhanced by the defect? One
group of courts hold that the plaintiff must prove both that the
defect caused the enhanced injury and also the amount of that
injury.370 Some others hold that the plaintiff must first prove that
the product defect caused enhancement of the injury, but then the
defendant has the burden of proving how much of that injury
would have occurred even with a non-defective product.371 The
Products Restatement provides that if evidence shows that
additional harm did in fact occur, but does not permit the trier to
distinguish between increased harm caused by the product and the
harm that would have occurred anyway, the defendant is liable for
the whole
841
amount.372 An alternative to all these solutions is to apportion
liability by fault rather than by causation, that is, to estimate the
fault of each party rather than to estimate the amount of increased
harm caused by the manufacturer’s bad design.373
Foreseeability does not invariably prove defect. The rule that
designs must take foreseeable use into account does not relieve the
plaintiff of proving a defect in the product. The defendant must
design reasonably with the product’s use in mind, but the
manufacturer cannot avoid all foreseeable abuses. It is certainly
foreseeable that some drinkers will misuse alcohol, but
uncontaminated alcoholic beverages have not been regarded as
defective.374 The plaintiff’s misuse of alcohol may be foreseeable,
but that will not assist the plaintiff unless she can demonstrate
that alcohol is defective.
Misuse, Alteration, or Other Conduct as Superseding Cause
The plaintiff’s own unforeseeable negligence, misuse, or
alteration of the product, if it is one of the causes of her injury, may
be a superseding cause that relieves the manufacturer of liability
for the defective product, even in states that refuse to reduce
recovery for the plaintiff’s comparative fault.375 The same is true
with the unforeseeable negligence, misuse, or alteration by
others.376 A common case is an employer’s removal of safety
devices from machinery used by workers. If the alteration is
unforeseeable, the manufacturer is not liable to the injured
worker.377 But if the alteration or misuse is itself foreseeable as a
potential increase in the risk of harm, it is not a superseding cause
and is not a ground for avoiding liability if the product is
defective.378 As usual, where reasonable people could differ,
foreseeability is a jury question.379 Likewise if the alteration or
misuse did not in fact cause the harm, it is of no consequence.380
842
Misuse as Comparative Fault

In some cases a product is defective and its defect is a
concurring cause, along with the plaintiff’s misuse, of the plaintiff’s
harm. In these cases, evidence of the plaintiff’s misuse may be
relevant on the issue of comparative fault, even though it does not
negate a defect or causation.381
For example, if the product is an automobile, it might be
considered a kind of misuse to drive it drunkenly at high speeds,
but since such uses are foreseeable, manufacturers must
nevertheless include seatbelts and other reasonable crash-
protection designs. If they do not do so, the product is defective. If
the driver is killed because no protection was available when she
crashed the car, the defect was one of the causes of harm. But the
driver’s fault is also one of the causes of harm, and where
comparative fault systems are used in products cases, the
plaintiff’s conduct warrants a reduction of damages whether the
driver’s speed is considered to be misuse or some other brand of
fault.382 Treating misuse as comparative fault makes total sense
when the misuse is foreseeable. If the misuse is not foreseeable,
the product would seem to be objectively safe, and thus not
defective at all.
Most states have enacted statutory limitations on liability for
product defects. To a large extent, these statutes provide rules
substantially in accord with the rules developed by judicial decision
in most states. Such statutes may, for example, provide that
damages are to be reduced for plaintiff fault and that
unforeseeable alteration which is the proximate cause of the harm
relieves the defendant of liability, as do some kinds of product
misuse. Special protective statutes of limitation are included as
well,383 and damages caps may be imposed either specially in
products actions or as part of broad limitations on recoveries.384
One of the important substantive effects of the statutes is to
adopt a negligence standard, at least in effect, holding the
manufacturer responsible for a design defect if it should reasonably
have known of an avoidable risk, but not otherwise. The statutes
achieve this result by a variety of provisions ranging from a direct
statement that liability is limited to negligence to a provision
exculpating the manufacturer if the product met the “state of the
art.”385
Scientific knowability or industry standards? Do the state-of-
the-art statutes make industry custom the standard of care,
contrary to the general tort rule on the effect of custom?386 Or do
they only mean to foreclose liability for scientifically unknowable
risks? Most of the statutes rather clearly foreclose liability for
scientifically unknowable risks
843
but definitely do not adopt the industry’s own standards as the

governing test.387 Other statutes may allow the industry to set its
own standards for its products. One statute presumes the product
nondefective if it conformed either to “generally recognized and
prevailing standards” or to the state of the art, a disjunction that
distinguishes prevailing standards from state of the art and
exculpates the product if either is established.388 Others provide
that the defendant is not liable if the product design and its
method of manufacture, testing and labeling conformed to “the
state of the art” at the time.389 In the absence of a definition or
implications to the contrary, such a statute conceivably could mean
that the industry’s own practices set the limits of the industry’s
liability. But some such statutes have been construed to establish
feasibility rather than the industry’s own custom as the standard,
even though evidence of industry custom is admissible as tending
to show what may be feasible.390
Burden of proof. State-of-the-art statutes, including those that
do not actually use that term, also raise questions about the
burden of proof. Some of them, referring to a “defense,” impliedly
or perhaps explicitly put the burden on the defendant to show that
the product met the state of the art.391 Others leave the question in
doubt.392 Insofar as the statute merely provides for admissibility of
state-of-the-art evidence without prescribing a substantive rule,
the statute does not indicate anything about the burden of proof.
Manufacturing defects. The case of manufacturing defects, as
distinguished from design and warning defects, is now the core
case for strict liability, because if a product’s risk is unknowable,
the design and warning claims now generally fail. But knowability
of risks is logically no part of the manufacturing defect case;
product flaws are happenstantial, so the fact that the flaw was not
known or reasonably knowable seems to be irrelevant as a
common-law matter. But some state-of-the-art statutes can be read
to bar strict liability claims for all types of product defect.393 Other
statutes limit the state-of-the-art defense in some way and appear
to permit strict liability in manufacturing defect claims.394
Certainly the fact that a product’s design is state of the
844
art, meaning it could not feasibly be made safer, does not mean
its workmanship is also state of the art.395
Under the common law, the defendant’s compliance with a
statute is not in itself a defense to a negligence action.396 If the
defendant is driving only 50 miles per hour in a 55 zone, he may
still be negligent in driving too fast for the circumstances. The
common-law rule in products cases is the same—evidence of
compliance with statute or regulation is relevant to judgments
about the product’s alleged design or warning defects and hence
admissible,397 but not by any means conclusive.398
Some states have enacted statutes attempting to provide some
kind of protection for manufacturers whose products could be found
defective even when they have complied with federal statutes. A
few of these merely provide that evidence of compliance is
admissible as tending to show that the product is not defective or
negligently made.399 A few others provide that when compliance is
proven, the product is rebuttably “presumed” non-defective.400
Neither group appears to change much. The plaintiff already has
the burden of proving that the product is defective, which is to say
that the product is “presumed” non-defective until the plaintiff
sustains that burden. Statutes could, however, meaningfully
provide that the presumption resulting from compliance is
rebutted only by some especially demanding level of proof, such as
clear and convincing evidence.401 A few statutes eliminate punitive
damages when compliance with statute or regulation is
demonstrated.402
Although the state compliance statutes do not appear to have
much effect, federal statutes or regulations403 sometimes preempt
or entirely displace state law, including tort law.404 The effect is
that when a manufacturer complies with a federal statute, no tort
claim can be pursued, so in that case compliance is a complete
defense. As already
845
discussed, manufacturers who produce major products to

government specifications are often accorded the same
protection.405
Federal statutes may preempt state law, either expressly or
impliedly. Even where Congress has not included an express
preemption clause, implied preemption may occur if a federal
statute or set of valid regulations either (1) occupies the regulated
field (“field preemption”) or (2) conflicts with state law (“conflict
preemption”). Where preemption is found, the federal law entirely
displaces state law. Federal lawmaking culture is oriented to
regulation, not to private tort rights, and only a few federal
statutes create private tort claims for personal injury.406 In many
instances when state tort rights are displaced, no new comparable
federal tort right is substituted. Instead, the manufacturer is
subjected to regulation without being subjected to liability.
Consequently, a defendant who violates the preemptive federal
statute, as well as the defendant who complies with it, may be
immunized from all tort liability.407
Because preemption requires courts to interpret federal
regulatory statutes that are themselves far from clear, preemption
issues have bred a good deal of litigation. A given statute may
preempt some tort claims but not others. A good example arises
under the tobacco labeling act. Congress requires cigarette
packages to bear a health-warning label. The statute forbids
additional advertising requirements but says nothing about
common law tort claims. However, the Supreme Court held that a
common law tort claim based on failure to warn would be an
additional advertising requirement. Hence no tort claim could be
pursued based solely upon the manufacturer’s failure to give a
better warning than required by Congress. On the other hand, a
claim based upon negligent research or upon express warranty
would not be preempted.408 In a later case construing the same
tobacco labeling act, the Court held that a plaintiff’s state law
deceptive-advertising claims against manufacturers of “light”
cigarettes were not preempted.409
A number of federal statutes set products standards or regulate
products, and may include provisions that arguably expressly or
impliedly preempt state tort claims. These include, besides the
tobacco labeling act, statutes on flammable fabrics,410 on
insecticides and other poisons,411 on railroad equipment,412 on
hazardous substances, and on motor vehicle safety standards.413
Food and drugs are regulated heavily, but with no obvious
preemptive intent.414 However, medical devices such as
pacemakers and penile implants
846
are regulated under the same general scheme, and as to these

devices the statute contains preemptive language.415 The
Consumer Products Safety Commission Act416 and the
Occupational Safety and Health Act are less likely to generate
substantial preemption defenses.417 Whether a given claim is
preempted depends upon statutory language, which itself may
emanate contradictory signals.418
The result is that a case-by-case analysis is required to
determine whether a claim is preempted, not only because statutes
themselves may differ from each other, but because some claims
under a given statute may be preempted while others are not.419
And courts disagree among themselves on a number of claims.
The Supreme Court has held that the absence of a regulation on
anti-lock brakes is not itself a declaration that manufacturers are
free to omit anti-lock brakes. Thus the federal motor vehicle
regulations do not preempt a tort claim based on the absence of
anti-lock brakes.420 But the exact words and policy of the statute or
regulation matter, and the Supreme Court has also held that a
federal regulation requiring airbags on some vehicles but not
others left manufacturers of others free to omit that protection, and
preempted any state law requirement to the contrary.421 On the
other hand, the Court has held that where a statute expressly
preempts local “law or regulation” relating to boat safety, the
preemption only applies to positive enactments such as regulations
or statutes and does not prevent states from recognizing common
law tort liability for unreasonably unsafe boat motors.422
847
A similar story, with varying degrees of preemption, can be told

of other statutes. In the medical device area, the Supreme Court
has held that the Food and Drug Administration’s pre-market
approval process establishes federal standards for medical devices,
and that a patient’s state-law claims of negligence, strict products
liability and breach of warranty against the manufacturer of a
balloon catheter were thus preempted.423 Earlier the Court had
held that a plaintiff’s design and warning defect claims in
connection with a heart pacemaker were not preempted, where the
pacemaker had been approved under a grandfather clause and not
actually covered by specific federal regulations.424 Preemption in
the device cases applies only when state law conflicts with the
specific federal regulation because compliance with both state and
federal rules is impossible, or because compliance with the state
law would impede enforcement of the federal.425 For that reason,
preemption is most likely when federal regulation is extensive or
specific and when the state law “requirement” is also specific in its
conflict.426
To a large extent, what has already been said about the statute
of limitations in negligence cases applies in products liability cases
as well.427 The traditional rule starts the statute of limitations
running at the time of injury; the discovery rule starts the statute
running only when the plaintiff discovered or should have
discovered injury and causation; the new statutes of repose put an
outer limit on the discovery rule by providing that after a stated
period, the statute bars the claim even if the injury has not yet
occurred and even if it could not have been discovered. Products
cases, however, tend to highlight several specific considerations.
Time of accrual. The cause of action for strict tort liability is
usually treated under the rules applicable to negligence,428 so
accrual begins when injury occurs,429 subject to the discovery
rule430 and statutes of repose where applicable. The claim for
breach of
848
warranty, however, can arguably accrue at the time the product

was sold on the ground that warranty claims are based on contract,
which is breached at the time of sale if the product is defective.
That rule is especially adapted to commercial or economic loss
cases and is accepted by the Uniform Commercial Code.431 A
number of courts have gone further by applying a time-of-sale rule
to personal injury cases brought on a warranty theory.432 Such an
approach can bar the claim before injury occurs.433 Not
surprisingly, other courts have rejected this time-of-sale rule. They
say that even if the claim for personal injury is constructed on a
warranty theory, the claim is essentially one in tort and governed
by the tort statute of limitations.434 Neither the contract nor the
tort approach consistently favors one party or the other. The
plaintiff who buys a product that immediately causes a known
injury will benefit from the longer warranty statute of limitations,
although it begins to run immediately.435 When the state has
enacted a specific products liability statute, it may control
regardless of the legal theory.436
Statutes of repose. Statutes of repose are especially popular in
products and related cases. A plaintiff may be injured today by a
product manufactured in 1930. Likewise, the plaintiff may be
injured today by a product manufactured only last year, but the
injury may not become apparent for ten or twenty years, especially
with toxic injuries. These possibilities have led to widespread use
of statutes of repose in products cases, typically cutting off all
liability after an easily ascertainable time, such as six, eight, or ten
years after the product was first sold for consumption.437 The most
extreme result would foreclose the plaintiff’s claim before she was
even injured. A few courts have held that statutes of repose violate
their respective state constitutions,438 but mostly these statutes
have been upheld against constitutional attack.439 The repose rule
may be meliorated in narrow circumstances by allowing additional
time to sue, as long as the injury itself occurred within the repose
period,440 or by declaring the rule unconstitutional only insofar as
it bars the claim before it arises.441
________________________________
1 With few exceptions, any special products liability rules apply
only to manufacturers and those who are in the business of either selling
or distributing tangible products. See 2 Dobbs, Hayden & Bublick, The
Law of Torts §§ 477 & 478 (2d ed. 2011 & Supp.). Sellers of raw materials
and component parts used to manufacture goods are subject to the
products liability rules; “casual sellers,” those not in the business of selling
the goods at issue, are not. Id. § 478.
2 See § 33.2.
3 See, e.g., David G. Owen, Products Liability Law (2d Ed. 2008).
4 See Louis R. Frumer & Melvin I. Friedman, Products Liability
(Cary Stewart Sklaven ed. 2008) (11 vols.); David G. Owen & Mary J.
Davis, Owen & Davis on Products Liability (4th ed. 2014, updated on
Westlaw) (3 vols.); Marshall S. Shapo, The Law of Products Liability (4th
ed. 2002, updated on Westlaw) (2 vols.); American Law of Products
Liability (Timothy E. Travers ed., 3d ed., updated on Westlaw) (23 vols.).
5 Restatement Third of Torts (Products Liability) (1998).
6 See §§ 33.4 & 33.5.
7 See David G. Owen, Products Liability Law § 2.1, at 60–61 (2d ed.
2008) (“Negligence is the classic products liability claim … [and] remains a
vital theory of recovery in products liability litigation.”); Reis v. Volvo Cars
of North America, 24 N.Y.3d 35, 18 N.E.3d 383, 993 N.Y.S.2d 672 (2014)
(negligent design defect); Lance v. Wyeth, 85 A.3d 434 (Pa. 2014) (same); 5
Star, Inc. v. Ford Motor Co., 408 S.C. 362, 759 S.E.2d 139 (2014) (same).
8 Restatement Second of Torts §§ 388 to 402 (1965). A chattel
supplier is often not a manufacturer, but an employer or landowner who
supplies chattels for some self-benefit, say in employment or in land
improvements, or some analogous role. See Heinz v. Heinz, 653 N.W.2d
334 (Iowa 2002) (discussing Restatement Second of Torts § 392 (1965) and
requiring a supplier to make reasonable inspections and to warn users of
the chattel for the supplier’s benefit or to make it safe for them). Another
non-manufacturing chattel supplier is the lender.
9 Industry custom—what is actually done in the industry on safety
matters—is at least relevant in establishing negligence. See Morden v.
Continental AG, 235 Wis.2d 325, 611 N.W.2d 659 (2000). See generally
David G. Owen, Products Liability Law § 2.3 (2d ed. 2008).
10 See §§ 33.9.
11 A product manufacturer or distributor can limit implied
warranties of merchantability, subject to the Uniform Commercial Code
and other statutes. However, a manufacturer cannot disclaim liability for
personal injuries, as opposed to commercial loss. See UCC § 2–719(3);
Restatement Second of Torts § 402A, cmt. m (1965); Restatement Third of
Torts (Products Liability) § 18 (1998); 2 Dobbs, Hayden & Bublick, The
Law of Torts § 472 (2d ed. 2011 & Supp.).
12 Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002)
(quoting White & Summers, Uniform Commercial Code § 9.8 (4th ed.
1995)).
13 See Restatement Second of Torts § 402B (1965).
14 See Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002).
15 See § 43.8.
16 See Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002).
17 David Owen, Products Liability Law Restated, 49 S.C.L. Rev. 273
(1998); William L. Prosser, The Assault upon the Citadel (Strict Liability
to the Consumer), 69 Yale L. J. 1099 (1960); William L. Prosser, The Fall
of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791
(1966); 1 David G. Owen & Mary J. Davis, Owen & Davis on Products
Liability § 5.2 (4th ed. 2014, updated on Westlaw).
18 Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. 402
(Exch. Pl. 1842).
19 See, e.g., Losee v. Clute, 51 N.Y. 494 (1873) (defendant negligently
made a boiler and sold it to the plaintiff’s neighbor; the plaintiff was
injured when it exploded, but the plaintiff had no contractual relationship
with the manufacturer-defendant so the privity rule barred recovery);
Field v. Empire Case Goods Co., 179 A.D. 253, 166 N.Y.S. 509 (1917)
(purchase from a retailer, no privity with manufacturer).
20 Thomas v. Winchester, 6 N.Y. 397 (1852) (deadly poison
mislabeled creating “imminent danger”).
21 MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050
(1916).
22 Id.
23 Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N.W. 382
(1920); Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d
828 (1942).
24 UCC § 2–318.
25 Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69
(1960).
26 Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 27 Cal.Rptr.
697, 377 P.2d 897 (1963).
27 A few retained a kind of implied warranty theory that was
regarded as largely coincident and congruent with liability under § 402A.
See Ex parte Chevron Chemical Co., 720 So.2d 922 (Ala. 1998); Com. v.
Johnson Insulation, 425 Mass. 650, 682 N.E.2d 1323 (1997).
28 E.g., Doe v. Miles Laboratories, Inc., Cutter Laboratories Div., 927
F.2d 187, 191 (4th Cir. 1991) (“[T]he fundamental purpose underlying the
theory of strict tort liability is to force hazardous products from the
market.”); Boles v. Sun Ergoline, Inc., 223 P.3d 724 (Colo. 2010) (stressing
enterprise liability rationale); Sylvan R. Shemitz Designs, Inc. v. Newark
Corp., 291 Conn. 224, 967 A.2d 1188 (2009) (stressing consumer
expectations rationale); Sternhagen v. Dow Co., 282 Mont. 168, 935 P.2d
1139 (1997) (adopting both enterprise liability and deterrence rationales,
along with some minor ideas); Brooks v. Beech Aircraft Corp., 120 N.M.
372, 902 P.2d 54 (1995) (discussing several rationales); Horst v. Deere &
Co., 319 Wis.2d 147, 769 N.W.2d 536 (2009) (same).
29 See, e.g., Virgina E. Nolan & Edmund Ursin, Enterprise Liability
and the Economic Analysis of Tort Law, 57 Ohio St. L. J. 835 (1996) (one of
numerous publications by the authors).
30 See Guido Calabresi, The Costs of Accidents (1970).
31 Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict
Liability in Torts, 81 Yale L. J. 1055 (1972).
32 See William M. Landes & Richard A. Posner, A Positive Economic
Analysis of Products Liability, 14 J. Leg. Studies 535 (1985).
33 Marshal S. Shapo, The Law of Products Liability (4th ed. 2002,
updated on Westlaw); William L. Prosser, The Assault upon the Citadel
(Strict Liability to the Consumer), 69 Yale L. J. 1099, 1123 (1960).
34 James A. Henderson, Jr., Judicial Review of Manufacturers’
Conscious Design Choices: The Limits of Adjudication, 73 Colum. L. Rev.
1531 (1973).
35 E.g., James A. Henderson & Aaron D. Twerski, Doctrinal Collapse
in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U. L.
Rev. 265 (1990); Sheila L. Birnbaum, Unmasking the Test for Design
Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33
Vand. L. Rev. 593 (1980); David A. Fischer, Products Liability—
Functionally Imposed Strict Liability, 32 Okl. L. Rev. 93 (1979); Aaron D.
Twerski, Seizing the Middle Ground Between Rules and Standards in
Design Defect Litigation: Advancing Directed Verdict Practice in Law of
Torts, 57 N.Y.U. L. Rev. 521 (1982).
36 See 44 Fed. Reg. 62714 (1979).
37 See Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002)
(expressly adopting Restatement Third approach).
38 See generally 1 David G. Owen & Mary J. Davis, Owen & Davis
on Products Liability § 5.7 (4th ed. 2014, updated on Westlaw) (discussing
current variations on the Restatement Second’s § 402A rules).
39 E.g., Fuchsgruber v. Custom Accessories, Inc., 244 Wis.2d 758,
628 N.W.2d 833 (2001). A few states retain statutes that embody the
language of § 402A, giving courts little or no leeway to make a change
themselves. See David G. Owen, Products Liability Law § 8.3, at 504 (2d
ed. 2008).
40 Vitanza v. Upjohn Co., 257 Conn. 365, 778 A.2d 829 (2001)
(invoking Restatement Second Comment k to protect against strict
liability for unknowable danger).
41 E.g., Karlsson v. Ford Motor Co., 140 Cal.App.4th 1202, 45
Cal.Rptr.3d 265 (2006); Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 901
N.E.2d 329, 327 Ill.Dec. 1 (2008); Jackson v. General Motors Corp., 60
S.W.3d 800 (Tenn. 2001); Green v. Smith & Nephew AHP, Inc., 245 Wis.2d
772, 629 N.W.2d 727 (2001). Statutes in some states compel this approach.
42 See, rejecting the economic loss rule entirely, La. Rev. Stat. Ann. §
9:2800.53(5) (2009); Farm Bureau Ins. Co. v. Case Corp., 317 Ark. 467, 878
S.W.2d 741 (1994); Thompson v. Nebraska Mobile Homes Corp., 198 Mont.
461, 647 P.2d 334 (1982). Some courts have recognized limited exceptions;
the principle one is for asbestos products. See Shooshanian v. Wagner, 672
P.2d 455 (Alaska 1983). Some have withdrawn the protection of the
economic loss rule where the defendant was grossly negligent, see Sommer
v. Federal Signal Corp., 79 N.Y.2d 540, 593 N.E.2d 1365, 583 N.Y.S.2d 957
(1992), or where the defendant’s conduct has risked very serious personal
injury, see Lloyd v. General Motors Corp., 397 Md. 108, 916 A.2d 257
(2007).
43 East River Steamship Corp. v. Transamerica Delaval, Inc. 476
U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986); Seely v. White Motor Co.,
63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P.2d 145 (Cal.1965); Giddings & Lewis,
Inc. v. Industrial Risk Insurers, 348 S.W.3d 729 (Ky. 2011); Dobrovolny v.
Ford Motor Co., 281 Neb. 86, 793 N.W.2d 445 (2011). See generally Jay M.
Zitter, Annotation, Strict Products Liability: Recovery for Damage to
Product Alone, 72 A.L.R.4th 12 (1989).
44 See Digicorp, Inc. v. Ameritech Corp., 262 Wis.2d 32, 662 N.W.2d
652 (2003) (discussing jurisdictional variations on the “fraud exception” to
the economic loss rule).
45 Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69, 61 Ill. Dec.
746, 435 N.E.2d 443 (1982) (grain storage tank developed crack); Alejandre
v. Bull, 159 Wash.2d 674, 153 P.3d 864 (2007) (recognizing the fraud
exception but finding that plaintiffs failed to prove fraud; claim thus
barred by economic loss rule).
46 See Fleetwood Enterprises, Inc. v. Progressive Northern Ins. Co.,
749 N.E.2d 492 (Ind. 2001) (mobile home engulfed itself in flames).
47 See Seely v. White Motor Co., 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403
P.2d 145 (Cal.1965) (recognizing that disclaimer of warranty as to
economic loss is permitted); Van Lare v. Vogt, Inc., 274 Wis.2d 631, 683
N.W.2d 46 (2004) (economic loss rule particularly appropriate where the
parties’ contract excludes liability for economic harm). One of the reasons
frequently given for the economic loss rule is that it preserves the
contract’s limitations on liability and other allocations of losses. See, e.g.,
LAN/STV v. Martin K. Eby Constr. Co., 435 S.W.3d 234 (Tex. 2014).
48 E.g., Neibarger v. Universal Cooperatives, Inc., 439 Mich. 512, 486
N.W.2d 612 (1992).
49 What counts as “other property” is sometimes a difficult question.
The Products Restatement asks whether the product is an integrated
whole. Restatement Third of Torts (Products Liability) § 21, cmt. e (1998).
If so, damage to the whole product by a component part is not damage to
“other property;” instead, the product is deemed to have damaged itself,
leaving the plaintiff to whatever contract rights he had and excluding the
tort claims. See Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238 (3d
Cir. 2010) (N.J. law); Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind.
2005).
50 E.g., A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245,
634 A.2d 1330 (1994) (backup power system manufactured by defendant
allegedly did not work, resulting in loss of 140,000 chickens in a power
failure; upon proof, the plaintiff can recover its losses).
52 Restatement Third of Torts (Products Liability) § 1 (1998).
53 See, e.g., Doomes v. Best Transit Corp., 17 N.Y.3d 594, 935
N.Y.S.2d 268, 958 N.E.2d 1183 (2011); BIC Pen Corp. v. Carter, 346
S.W.3d 533 (Tex. 2011).
54 See, e.g., Sinclair v. Merck & Co., 195 N.J. 51, 948 A.2d 587 (2008)
(claims of increased risks of health problems do not satisfy the definition of
“harm” so as to allow a claim). See also Bylsma v. Burger King Corp., 176
Wash.2d 555, 293 P.3d 1168 (2013) (damages for emotional distress,
absent physical injury, are recoverable in products liability action only
where distress was “reasonable” and manifested by objective
symptomatology).
55 The defendant may be subject to liability for harms to users of the
product as well as bystanders injured by the product. See 2 Dobbs, Hayden
56 See, e.g., Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d
244 (2003) (defective tire causing motorist to be stranded alone and
exposing her to murderous attack). To everyone’s confusion, proximate
cause issues have at times been treated as defenses. See § 33.18.
57 Section 1 of the Products Restatement provides for liability of one
engaged in the business of selling or distributing products where there has
been a sale or distribution. The same section requires a defect. Sections 2
(b) & (c) require foreseeable risks of harm when the claim is for design or
warning defects. In a design defect case, § 2 (b) also requires proof of a
reasonable alternative design. See § 33.11.
58 The Products Restatement also requires a defect, but imposes
strict liability in only some of the cases. See § 33.5.
59 E.g., Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334,
528 A.2d 590 (1987); Malcolm v. Evenflo Co, 352 Mont. 325, 217 P.3d 514
(2009).
60 Restatement Second of Torts § 402A(2) (1965).
61 E.g., Moss v. Crosman Corp., 136 F.3d 1169 (7th Cir. 1998); cf.
McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir. 1997) (Black Talon bullets
designed to bend upon impact in order to inflict maximum harm to organs
of a person were intended to be dangerous but were not defective).
62 Restatement Second of Torts § 402A, cmt. i (1965). See John W.
Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L. J.
825 (1973). The Products Restatement uses the term “not reasonably safe”
instead of “unreasonably dangerous.” See Restatement Third of Torts
(Products Liability) § 2(c) & (d) (1998).
63 The terms are synonymous.
64 See David G. Owen, Products Liability Law § 6.2 (2d ed. 2008).
65 See Restatement Third of Torts (Products Liability) § 2(a) (1998).
66 Flaws may occur systematically rather than randomly if the
production facility is badly maintained, as where a manufacturing plant is
contaminated and permits products to be contaminated. See Torrington
Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000).
67 See Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994)
(permitting inference of some such defect when glass jar of peanuts
shattered); Lee v. Crookston Coca-Cola Bottling Co., 290 Minn. 321, 188
N.W.2d 426 (1971) (inferring some such defect).
68 Van Deusen v. Norton Co., 204 A.D.2d 867, 612 N.Y.S.2d 464
(1994).
69 Schafer v. JLC Food Systems, Inc., 695 N.W.2d 570 (Minn. 2005);
Restatement Third of Torts (Products Liability) § 7 (1998).
70 E.g., Jackson v. Nestle-Beich, Inc., 147 Ill.2d 408, 168 Ill.Dec. 147,
589 N.E.2d 547 (1992). See § 33.6 (consumer expectations test). Strict
liability for defects in food is often imposed on a warranty theory rather
than on a tort theory. See Jane Massey Draper, Annotation, Liability for
injury or death caused by food product containing object related to, but not
intended to be present in, product, 2 A.L.R.5th 189 (1992).
71 David G. Owen, The Moral Foundations of Products Liability Law:
Toward First Principles, 68 Notre Dame L. Rev. 427, 467 (1993).
72 See § 33.9.
73 See David G. Owen, Design Defects, 73 Mo. L. Rev. 291 (2008)
(“[U]nlike a manufacturing defect claim, which implicates merely a single
product unit, a design defect claim challenges the integrity of the entire
product line and so pierces to the very core of the manufacturer’s
enterprise. For this reason, design defect claims are of greatest concern to
manufacturers[.]”).
74 E.g., Adkins v. GAF Corp., 923 F.2d 1225 (6th Cir. 1991);
Hammond v. North American Asbestos Corp., 97 Ill.2d 195, 454 N.E.2d
210, 73 Ill.Dec. 350, 39 A.L.R.4th 385 (1983).
75 E.g., Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir.
1981).
76 E.g., Knitz v. Minster Mach. Co., 69 Ohio St. 2d 460, 432 N.E.2d
814 (1982).
77 Leichtamer v. American Motors Corp., 67 Ohio St.2d 456, 424
N.E.2d 568 (1981). See also § 33.18.
78 Moulton v. Rival Co., 116 F.3d 22 (1st Cir. 1997).
79 See § 33.9 (adoption of risk-utility test).
80 Restatement Third of Torts (Products Liability) § 2(b) (1998).
81 Ross Laboratories, Div. of Abbott Laboratories v. Thies, 725 P.2d
1076 (Alaska 1986).
82 The Products Restatement implies that express warranty claims
are not based upon a finding of defect. See Restatement Third of Torts
(Products Liability) § 2 cmt. n (1998).
83 See Caboni v. General Motors Corp., 278 F.3d 448 (5th Cir. 2002)
(under Louisiana statute).
84 Triple E, Inc. v. Hendrix and Dail, Inc., 344 S.C. 186, 543 S.E.2d
245 (2001); see Tracy Bateman Farrell, Annotation, Products Liability:
Statements in Advertisements as Affecting Liability of Manufacturers or
Sellers for Injury Caused by Product Other than Tobacco, 93 A.L.R.5th 103
(2001).
85 See Caboni v. General Motors Corp., 278 F.3d 448 (5th Cir. 2002)
(under Louisiana statute).
86 See Sundberg v. Keller Ladder, 189 F.Supp.2d 671 (D. Mich. 2002)
(ladder rated for 200 pounds allegedly collapsed with 150-pound plaintiff).
87 For other examples see 1 David G. Owen & Mary J. Davis, Owen
& Davis on Products Liability § 4:8 (4th ed. 2014, updated on Westlaw).
88 Restatement Second of Torts § 402A, cmt. g (1965).
89 E.g., Schafer v. JLC Food Systems, Inc., 695 N.W.2d 570 (Minn.
2005) (unidentified foreign object in pumpkin muffin); Massey v. ConAgra
Foods, Inc., 156 Idaho 476, 328 P.3d 456 (2014) (pot pies contaminated
with salmonella); see also Restatement Third of Torts (Products Liability)
§ 7 (1998). Most courts use the consumer expectations test, or some
version of it, in the food-defect cases, although a small number use a
“foreign-natural” distinction, in which the plaintiff can prevail on a strict
liability theory only where some harmful feature is “foreign” to the
particular food product. See Mexicali Rose v. Superior Court, 1 Cal. 4th
617, 4 Cal. Rptr. 2d 145, 822 P.2d 1292 (1992) (one-inch chicken bone in
chicken enchilada was “natural” to the product, thus no strict liability).
90 Jackson v. Nestle-Beich, Inc., 147 Ill. 2d 408, 168 Ill. Dec. 147, 589
N.E.2d 547 (1992); Restatement Third of Torts (Products Liability) § 7,
cmt. b (1998).
91 E.g., Estate of Pinkham v. Cargill, Inc., 55 A.3d 1 (Me. 2012) (bone
fragment in boneless turkey product); but see Vitello v. Captain Bills
Restaurant, 191 A.D.2d 429, 594 N.Y.S.2d 295 (1993) (consumers must
reasonably expect fish bones in a fish fillet).
92 Under the UCC, the test is comparable. Goods breach the
warranty of merchantability unless they are fit for the ordinary purposes
for which the goods are used. See UCC § 2–314.
93 On the representational background of products liability, see
Marshall S. Shapo, The Law of Products Liability § 1.02 and passim (4d
ed. 2002, updated on Westlaw).
94 Cf. 2 Dobbs, Hayden & Bublick, The Law of Torts § 462 (2d ed.
2011 & Supp.) (unknowable dangers and design defects).
96 Id. § 8.
97 Id. § 2, cmts. g & h.
98 Marshall S. Shapo, In Search of the Law of Products Liability: The
ALI Restatement Project, 48 Vand. L. Rev. 631 (1995); Rebecca Korzec,
Dashing Consumer Hopes: Strict Products Liability and the Demise of the
Consumer Expectations Test, 20 B.C. Int’l & Comp. L. Rev. 227 (1997).
99 Phillips v. Town of West Springfield, 405 Mass. 411, 540 N.E.2d
1331 (1989) (food case); Denny v. Ford Motor Co., 87 N.Y.2d 248, 662
N.E.2d 730, 639 N.Y.S.2d 250 (1995) (sport-utility vehicle rollover case).
100 E.g., Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 694
A.2d 1319 (1997) (alleged defect in pneumatic hand tools, approving the
use of supplemental risk-utility test in some cases).
101 See § 33.8.
102 See Godoy ex rel. Grambling v. E.I. DuPont de Nemours and Co.,
319 Wis.2d 91, 768 N.W.2d 674 (2009) (Prosser, J., concurring) (listing
states).
103 E.g., Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014);
Jackson v. General Motors Corp., 60 S.W.3d 800 (Tenn. 2001).
104 See DeLaney v. Deere and Co., 268 Kan. 769, 999 P.2d 930 (2000)
(while consumer expectations remains the controlling test, the risks and
utilities of a product may be used as “a guide”); McCathern v. Toyota
Motor Corp., 332 Or. 59, 23 P.3d 320 (2001) (consumer expectations is the
controlling test; jurors will know those expectations in some cases from
common experience; when that is not the case, the plaintiff can offer risk-
utility evidence to show reasonable expectations).
105 E.g., Tran v. Toyota Motor Corp., 420 F.3d 1310 (11th Cir. 2005)
(consumer expectations instruction is a basis of liability independent of the
risk-utility test “when the product in question is one about which an
ordinary consumer could form expectations”; seatbelts are such a product);
Soule v. General Motors Corp., 8 Cal. 4th 548, 34 Cal. Rptr.2d 607, 882
P.2d 298 (1994); D’Ascanio v. Toyota Industries Corp., 309 Conn. 663, 72
A.3d 1019 (2013).
106 Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002); Evans
v. Lorillard Tobacco Co., 465 Mass. 411, 990 N.E.2d 997 (2013); American
Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420 (Tex. 1997).
107 Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 327 Ill. Dec. 1, 901
N.E.2d 329 (2008) (characterizing the consumer expectations test and the
risk-utility balancing test as “methods of proof” rather than “theories”).
Compare Show v. Ford Motor Co., 659 F.3d 584 (7th Cir. 2011) (requiring
expert testimony in Ford Explorer rollover case “when aspects of a
product’s design or operation are outside the scope of lay knowledge”), with
Mansur v. Ford Motor Co., 197 Cal. App. 4th 1365, 129 Cal. Rptr. 3d 200
(2011) (on similar facts, consumer expectations test “is reserved for cases
in which the everyday experience of the products’ users permits a
conclusion that the product’s design violated minimum safety
assumptions, and ‘is defective regardless of expert opinion about the
merits of design’ ” and thus “expert witnesses may not be used to
demonstrate what an ordinary consumer should expect”).
108 Restatement Third of Torts (Products Liability) § 2(a) (1998);
Casey v. Toyota Motor Engineering & Mfg. North America, Inc., 770 F.3d
322 (5th Cir. 2014) (Texas has expressly adopted the Restatement Third
approach to manufacturing defects; plaintiff’s failure to show that “the
airbag in this case differs from the airbags that Toyota produced in the
same period and installed in other Highlander vehicles” is fatal to the
claim).
109 McKenzie v. S K Hand Tool Corp., 272 Ill.App.3d 1, 650 N.E.2d
612, 208 Ill.Dec. 918 (1995).
110 E.g., Walker v. General Elec. Co., 968 F.2d 116 (1st Cir. 1992);
Burley v. Kytec Innovative Sports Equipment, Inc., 737 N.W.2d 397 (S.D.
2007); Rohde v. Smiths Medical, 165 P.3d 433 (Wyo. 2007).
111 E.g., Metropolitan Property and Cas. Ins. Co. v. Deere and Co.,
302 Conn. 123, 25 A.3d 571 (2011); Lawson v. Mitsubishi Motor Sales of
America, Inc., 938 So.2d 35 (La. 2006); Schafer v. JLC Food Systems, Inc.,
695 N.W.2d 570 (Minn. 2005); Barnish v. KWI Building Co., 602 Pa. 402,
980 A.2d 535 (2009). See also Restatement Third of Torts (Products
Liability) § 3 (1998).
112 See Christopher H. Hall, Annotation, Strict Products Liability:
Product Malfunction or Occurrence of Accident as Evidence of Defect, 65
A.L.R.4th 346 (1989).
113 See, e.g., Murray v. Farmers Ins. Co., 118 Idaho 224, 796 P.2d 101
(1990); Anderson v. Chrysler Corp., 184 W.Va. 641, 403 S.E.2d 189 (1991).
114 Colboch v. Uniroyal Tire Co., 108 Ohio App.3d 448, 670 N.E.2d
1366 (1996). Age of the product alone is not conclusive; it is a matter of
assessing the likelihood that a defect, not other forces, caused the harm.
See Myrlak v. Port Authority of New York and New Jersey, 157 N.J. 84,
723 A.2d 45 (1999).
115 E.g., Winter v. Brenner Tank, Inc., 926 F.2d 468 (5th Cir. 1991)
(ladder welded to truck broke, but it could have been weakened over time
by impacts; jury verdict for defendant affirmed).
116 See Crawford v. Sears Roebuck & Co., 295 F.3d 884 (8th Cir. 2002)
(20-year-old ladder buckled, throwing plaintiff to the ground; since
plaintiff offered no evidence to exclude other forces that might have
affected ladder, there could be no inference of defect at the time ladder left
the seller’s hands); Parsons v. Ford Motor Co., 85 S.W.3d 323 (Tex. App.
2002) (parked car burst into flames, justifying inference of negligence or
defect, but since the probable source of flames was ignition that had been
worked on by a dealer, defect could not be attributed to manufacturer).
117 Compare Kerr v. Corning Glass Works, 284 Minn. 115, 169
N.W.2d 587 (1969) (exploding Pyrex plate; problem could have resulted
from use) with Lee v. Crookston Coca-Cola Bottling Co., 290 Minn. 321,
188 N.W.2d 426 (1971) (exploding soft-drink bottle, inference of defect
permissible).
118 See, e.g., Liberty Northwest Ins. Co. v. Spudnik Equipment Co.,
155 Idaho 730, 316 P.3d 646 (2013) (plaintiff must identify which
particular conveyor of the many on the job site caused his injury); Barnish
v. KWI Building Co., 602 Pa. 402, 980 A.2d 535 (2009) (plaintiff failed to
show why sensors suddenly failed after 10 years of proper functioning).
119 Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994)
(“Chicago is not Los Angeles; there were no earthquakes…. Elves may
have played ninepins with the jar of peanuts while Welge and Godfrey
were sleeping…. The plaintiff in a products liability suit is not required to
exclude every possibility, however fantastic or remote, that the defect …
was caused by someone other than one of the defendants.”).
120 Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d
450 (2d Cir. 2007) (Vermont law).
121 Van Deusen v. Norton Co., 204 A.D.2d 867, 612 N.Y.S.2d 464
(1994) (parts of power saw improperly bonded).
122 Ford Motor Co. v. Reed, 689 N.E.2d 751 (Ind. App. 1997) (but
inferring causation largely on the basis of sequence and timing). See also
Estate of Pinkham v. Cargill, Inc., 55 A.3d 1 (Me. 2012) (fact issue on
whether consumer’s perforated esophagus was caused by bone fragment in
defendant’s boneless turkey product precluded summary judgment for
defendant).
123 Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d
450 (2d Cir. 2007) (expert testimony provided sufficient evidence that
defect in coffee maker probably caused house fire).
124 See § 33.6.
125 The consumer expectations test has been criticized as “amorphous
or unprincipled,” and as a test that provides only “meager and insufficient
guidance.” See Douglas A. Kysar, The Expectations of Consumers, 103
Colum. L. Rev. 1700, 1705 (2003).
126 Soule v. General Motors Corp., 8 Cal. 4th 548, 34 Cal. Rptr.2d 607,
882 P.2d 298 (1994); see also McCabe v. American Honda Motor Co., 100
Cal.App.4th 1111, 123 Cal.Rptr.2d 303 (2002) (“If the facts permit an
inference that the product at issue is one about which consumers may
form minimum safety assumptions in the context of a particular accident,
the consumer expectations test may be used.”); Mansur v. Ford Motor Co.,
197 Cal. App. 4th 1365, 129 Cal. Rptr. 3d 200 (2011) (consumer
expectations test “is reserved for cases in which the everyday experience of
the products’ users permits a conclusion that the product’s design violated
minimum safety assumptions, and ‘is defective regardless of expert
opinion about the merits of design’ ”); D’Ascanio v. Toyota Industries
Corp., 309 Conn. 663, 72 A.3d 1019 (2013) (when case involves “complex
product design,” trier of fact must view consumer expectations in light of
various factors that balance utility of design with its risks).
127 See, e.g., Morson v. Superior Court, 90 Cal. App.4th 775, 109 Cal.
Rptr.2d 343 (2001); Biosera, Inc. v. Forma Scientific, Inc., 941 P.2d 284
(Colo. Ct.App. 1996), aff’d on other grounds, Forma Scientific, Inc. v.
Biosera, 960 P.2d 108 (Colo. 1998); Jackson v. General Motors Corp., 60
S.W.3d 800 (Tenn. 2001).
128 See Soule v. General Motors Corp., 8 Cal.4th 548, 34 Cal.Rptr.2d
607, 882 P.2d 298 (1994); Ray v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996).
129 If the consumer expectations must be based on widely shared
general knowledge about those expectations, expert testimony to establish
those expectations is likely to be excluded, as in Soule v. General Motors
Corp., 8 Cal.4th 548, 34 Cal. Rptr. 2d 607, 882 P.2d 298 (1994).
130 See Prosser & Keeton on Torts § 99, at 698 (5th ed. 1984).
131 Todd v. Societe Bic, 21 F.3d 1402 (7th Cir. 1994); Calles v. Scripto-
Tokai Corp., 224 Ill.2d 247, 864 N.E.2d 249, 309 Ill.Dec. 383 (2007);
Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999). In the same cases,
the risk-utility test would support liability for harms done to children by
lighters that feasibly could be child resistant. Perkins v. Wilkinson Sword,
Inc., 83 Ohio St.3d 507, 700 N.E.2d 1247 (1998). Similarly, an ordinary
negligence claim may be successfully asserted. See Talkington v. Atria
Reclamelucifers Fabrieken BV, 152 F.3d 254 (4th Cir. 1998).
132 American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997)
(ruling as to marketing or warning defects only; but the addictive qualities
of tobacco were not necessarily known and the product may be defective
for that reason). A Texas statute applicable to later cases appears to
eliminate all liability for tobacco products except that based upon
manufacturing defects and breach of express warranty. See Tex. Civ. Prac.
& Rem. Code § 82.004.
133 Mercer Mut. Ins. Co. v. Proudman, 396 N.J.Super. 309, 933 A.2d
967 (App. Div. 2007).
134 Haddix v. Playtex Family Products Corp., 138 F.3d 681(7th Cir.
1998); Lamke v. Futorian Corp., 709 P.2d 684 (Okla. 1985).
135 See Perkins v. Wilkinson Sword, Inc., 83 Ohio St.3d 507, 700
N.E.2d 1247 (1998).
136 Delvaux v. Ford Motor Co., 764 F.2d 469 (7th Cir. 1985) (danger of
a convertible—as a roofless car—is open and obvious, thus as a matter of
law not defective under consumer expectations test).
137 See Linegar v. Armour of America, Inc., 909 F.2d 1150 (8th Cir.
1990); House v. Armour of America, Inc., 929 P.2d 340, 345 (Utah 1996).
138 Orfield v. International Harvester Co., 535 F.2d 959 (6th Cir.
1976).
139 Gray v. Manitowoc Co., Inc., 771 F.2d 866 (5th Cir. 1985);
Spangler v. Kranco, Inc., 481 F.2d 373 (4th Cir. 1973); cf. Sauder Custom
Fabrication, Inc. v. Boyd, 967 S.W.2d 349 (Tex. 1998) (where “average user
of product” that injured employee would recognize the obviousness of the
product’s risks, employee’s recovery barred even where he had no
subjective knowledge of those risks).
140 Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 864 N.E.2d 249, 309
Ill.Dec. 383 (2007); cf. Moss v. Crosman Corp., 136 F.3d 1169 (7th Cir.
1998) (judging obvious danger of air gun by appearances to parent)
141 See David G. Owen, Products Liability Law § 5.6, at 306 (2d ed.
2008) (“[T]he consumer expectations test undesirably bars consumers in
virtually every case in which a danger was obvious, even if the
manufacturer could easily and cheaply removed a serious danger.”).
142 E.g., Byrns v. Riddell, Inc., 113 Ariz. 264, 550 P.2d 1065 (1976);
Camacho v. Honda Motor Co., 741 P.2d 1240 (Colo. 1987) (citing many
cases).
143 Pike v. Frank G. Hough Co., 2 Cal.3d 465, 467 P.2d 229, 85
Cal.Rptr. 629 (1970) (negligent design claim); Camacho v. Honda Motor
Co., Ltd., 741 P.2d 1240 (Colo. 1987) (strict liability design defect);
Ogletree v. Navistar Intern. Transp. Corp., 269 Ga. 443, 500 S.E.2d 570
(1998) (under risk-utility balancing test).
144 See §§ 33.6 & 33.8.
145 Page Keeton, Product Liability and the Meaning of Defect, 5 St.
Mary’s L. J. 31 (1973); Page Keeton, Manufacturer’s Liability: The
Meaning of “Defect” in the Manufacture and Design of Products, 20
Syracuse L. Rev. 559 (1969).
146 John W. Wade, On the Nature of Strict Tort Liability for Products,
44 Miss. L. Rev. 825 (1973).
147 E.g., Barton v. Adams Rental, Inc., 938 P.2d 532 (Colo. 1997);
Warner Fruehauf Trailer Co. v. Boston, 654 A.2d 1272 (D.C. 1995);
Ogletree v. Navistar Intern. Transp. Corp., 269 Ga. 443, 500 S.E.2d 570
(1998); St. Germain v. Husqvarna Corp., 544 A.2d 1283 (Me. 1988); Voss v.
Black & Decker Mfg. Co., 59 N.Y.2d 102, 450 N.E.2d 204, 463 N.Y.S.2d
398 (1983); Knitz v. Minster Mach. Co., 69 Ohio St.2d 460, 432 N.E.2d 814
(1982); Ray v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996). “Danger-utility”
and “cost-benefit” are among the terms referring to risk-utility analysis.
148 N. C. Gen. Stat. § 99B–6 (b) (as with many formulations, listing a
number of factors all of which could be subsumed under risk or utility);
Ohio Rev. Code Ann. § 2307.7.
149 See Restatement Third of Torts (Products Liability) § 2, cmt. a & f
(1998); David Owen, Products Liability Law Restated, 49 S. C. L. Rev. 273
(1998).
150 See Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr.
225, 573 P.2d 443 (1978); Ontai v. Straub Clinic and Hosp., Inc., 66 Haw.
237, 659 P.2d 734 (1983); Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 864
N.E.2d 249, 309 Ill.Dec. 383 (2007); Soproni v. Polygon Apartment
Partners, 137 Wash.2d 319, 971 P.2d 500 (1999).
151 Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999).
152 John W. Wade, On the Nature of Strict Tort Liability for Products,
44 Miss. L. Rev. 825, 837 (1973). See Restatement Third of Torts (Products
Liability) § 2, cmt. f (1998).
153 The Products Restatement’s discussion of factors, § 2, cmt. f, does
not mention the seventh factor.
154 This is so because they are particular pieces of the risk-utility
balance used in negligence cases generally. See §§ 12.2 to 12.5.
155 Defenses in negligence and strict liability cases may be different,
however, and in a few states, the burdens of proof. See § 33.12.
156 E.g., Bryant v. Hoffmann-La Roche, Inc., 262 Ga.App. 401, 585
S.E.2d 723 (2003); Giunta v. Delta Intern. Machinery, 300 A.D.2d 350, 751
N.Y.S.2d 512 (2002).
157 E.g., Knitz v. Minster Mach. Co., 69 Ohio St.2d 460, 432 N.E.2d
814 (1982). As this example suggests, the product may be defective under
the risk-utility analysis even if the product does not malfunction. Perkins
v. Wilkinson Sword, Inc., 83 Ohio St.3d 507, 700 N.E.2d 1247 (1998)
(disposable cigarette lighter could have been made child-resistant).
158 See § 33.10.
159 See § 33.6.
160 Restatement Third of Torts (Products Liability) § 7, cmt. b (1998).
161 Id. § 8.
162 Id. § 2(b). See § 33.11.
163 See § 33.12.
164 The defendant’s post-injury remedial measures are admitted in
some strict liability cases but not in negligence cases. See, e.g., Caprara v.
Chrysler Corp., 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981).
165 See § 33.17.
2011 & Supp.).
167 See §§ 33.12.
168 Restatement Third of Torts (Products Liability) § 2, cmt. e (1998).
The defendant may win just as easily if the design’s utilities obviously
outweigh its risks. E.g., Bravman v. Baxter Healthcare Corp., 984 F.2d 71
(2d Cir. 1993) (heart valve allegedly too noisy).
169 See, e.g., Orthopedic Equip. Co. v. Eutsler, 276 F.2d 455, 79
A.L.R.2d 390 (4th Cir. 1960); Restatement Third of Torts (Products
Liability) § 4 (1998). Industry standards and non-binding governmental
standards, though not controlling, may be admissible as evidence bearing
on defectiveness, see Hansen v. Abrasive Engineering and Mfg., Inc., 317
Or. 378, 856 P.2d 625 (1993), although not all courts allow such evidence.
170 E.g., Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 357 N.E.2d
449, 2 Ill.Dec. 282 (1976).
171 See Burley v. Kytec Innovative Sports Equipment, Inc., 737
N.W.2d 397 (S.D. 2007) (“It is not within the common experience of a jury
to decide merely from an accident and injury that a product was
defectively designed.”).
172 Multi-function products may create some challenges in evaluation.
In Beard v. Johnson and Johnson, Inc., 41 A.3d 823 (Pa. 2012), the
plaintiff sued the manufacturer of a medical instrument that had many
functions. The defendant argued that the risk-utility balance must only
take account of the particular function or feature actually being used at
the time of the injury. The court rejected this argument, holding that the
assessment of the risks and utilities of the design of a multi-function
product should not be limited to considering only a single use of that
product.
173 Restatement Third of Torts (Products Liability) § 2, cmt. f (1998),
recognizes that an expert is not required “in every case,” but asserts that
an expert will be required in “many” cases.
174 See Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir.
1972).
175 Garnsey v. Morbark Indus., Inc., 971 F.Supp. 668 (N.D.N.Y. 1997).
176 See, e.g., Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034 (5th
Cir. 2011) (reviewing five factors that a jury should weigh “holistically” in
determining defect, under Texas law).
177 Violette v. Smith and Nephew Dyonics, Inc., 62 F.3d 8 (1st Cir.
1995).
2011 & Supp.).
179 Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 174 Cal.Rptr.
348 (1981).
180 Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137, 484 A.2d
1225 (1984).
181 Riley v. Becton Dickinson Vascular Access, Inc., 913 F.Supp. 879,
889 (E.D. Pa. 1995) (harmful product costs $0.78 per unit, arguably safer
product costs $1.40); Beaver v. Howard Miller Clock Co., 852 F.Supp. 631
(W.D. Mich. 1994) (safety strap to stabilize grandfather clock would have
cost $1.75 per clock).
182 See Ake v. General Motors Corp., 942 F.Supp. 869 (W.D. N.Y.
1996).
183 See, e.g., Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034 (5th
Cir. 2011) (economic feasibility of an alternative design for the front seats
of a car was proved by evidence that the manufacturer used an alternative
design for the rear seats of the same car); see also Restatement Third of
Torts (Products Liability) § 2, cmt. f (1998) (acknowledging relevance of
evidence that an alternative design is already on the market).
184 See Clarence Morris, Custom and Negligence, 42 Colum. L. Rev.
1147 (1942); §§ 12.6 to 12.9.
185 E.g., Timpte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009)
(trailer was not defective in design, because changing the design “would
have increased the cost and weight of the trailer while decreasing its
utility”).
186 See Linegar v. Armour of America, Inc., 909 F.2d 1150 (8th Cir.
1990).
187 See Riley v. Becton Dickinson Vascular Access, Inc., 913 F.Supp.
879 (E. D. Pa. 1995).
188 See Self v. General Motors Corp., 42 Cal.App.3d 1, 8, 116 Cal.Rptr.
575, 579 (1974) (“Protection gained against a head-on collision may be at
the expense of protection against one that is broadside, for like an army in
battle the vehicle can’t be uniformly strong at all points and under all
conditions.”), overruled on other grounds, Soule v. General Motors Corp., 8
Cal.4th 548, 34 Cal.Rptr.2d 607, 882 P.2d 298 (1994).
189 Timte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009).
190 Grzanka v. Pfeifer, 301 N.J. Super. 563, 694 A.2d 295 (1997)
(traffic signal’s control box was vandalized, disabling signal and resulting
in collision; vandalism not shown to be foreseeable, even though a better-
protected control box was feasible).
191 Owens v. Allis-Chalmers Corp., 414 Mich. 413, 326 N.W.2d 372
(1982) (forklift without seatbelts turned over and crushed operator;
evidence did not reveal magnitude of the risks, judgment for defendant
affirmed).
192 Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 579 A.2d 1241
(1990); Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807
(2006).
193 Metzgar v. Playskool, Inc., 30 F.3d 459 (3d Cir. 1994).
194 Riley v. Becton Dickinson Vascular Access, Inc., 913 F.Supp. 879,
885 (E. D. Pa. 1995).
195 See Braswell v. Cincinnati Inc., 731 F.3d 1081 (10th Cir. 2013)
(press brake machine that injured plaintiff was not defective, in part
because warnings on machine covered all salient risks). Presence of
adequate warnings may not provide a complete defense to a design defect
claim, however. See, e.g., Weigel v. SPX Corp., 729 F.3d 724 (7th Cir.
2013).
196 See Bourne v. Mary Gilman, Inc., 452 F.3d 632, 636 (7th Cir.
2006) (“[T]he accident magnet is just as obvious to the designer as the
user, and the rule should not work just one way.”).
197 See, e.g., Timpte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex.
2009).
198 Bourne v. Marty Gilman, Inc., 452 F.3d 632, 637 (7th Cir. 2006)
(goal posts that would snap and fall when pulled down by fans after a
football game were not unreasonably dangerous because they presented
obvious danger; “In some cases, the obviousness of the risk will obviate the
need for any further protective measures….”); Braswell v. Cincinnati, Inc.,
731 F.3d 1081 (10th Cir. 2013).
199 See Mesman v. Crane Pro Services, Div. of Konecranes, Inc., 409
F.3d 846 (7th Cir. 2005); Blue v. Environmental Engineering, Inc., 280 Ill.
Dec. 957, 803 N.E.2d 187 (App. 2003), aff’d on other grounds, 215 Ill. 2d
78, 828 N.E.2d 1128, 293 Ill. Dec. 630 (2005).
200 See Warner Fruehauf Trailer Co. v. Boston, 654 A.2d 1272 (D.C.
1995).
201 Kearney v. Philip Morris, Inc., 916 F.Supp. 61 (D. Mass. 1996) (no
liability for manufacturer of cigarette that caused fire on plaintiff’s
upholstered furniture).
2008) (“Without affirmative proof of a feasible design alternative, a
plaintiff usually cannot establish that product’s design is defective.”).
204 See Jones v. NordicTrack, Inc., 274 Ga. 115, 550 S.E.2d 101 (2001)
(“The ‘heart’ of a design defect case is the reasonableness of selecting from
among alternative product designs and adopting the safest feasible one.”).
205 See §§ 33.9 & 33.10.
207 E.g., Slisze v. Stanley-Bostich, 979 P.2d 317 (Utah 1999) (that the
same company produced a safer nailer was not sufficient to show that
another one was defective); Brown v. Crown Equipment Corp., 181 S.W.3d
268 (Tenn. 2005).
208 The Products Restatement acknowledges that a reasonable
alternative design need not be shown when a defect is shown by
circumstantial evidence, or where the design violates a safety statute or is
manifestly unreasonable. See Restatement Third of Torts (Products
Liability) § 2, cmts. b & e (1998).
209 See, e.g., N.J. Stat. Ann. § 2A:58C–3a(1); N.C. Gen. Stat. Ann. §
99B–6(1); Ohio Rev. Code § 2307.75(F); Tex. Civ. Prac. & Rem. Code §
82.005; Wash. Rev. Code § 7.72.030(1)(a), (3).
210 E.g., Wankier v. Crown Equip. Corp., 353 F.3d 862 (10th Cir.
2003) (Utah law); Guarascio v. Drake Associates Inc., 582 F.Supp.2d 459
(S.D.N.Y. 2008) (New York law); Bagley v. Mazda Motor Corp., 864 So.2d
301 (Ala. 2003); Artis v. Corona Corp. of Japan, 703 A.2d 1214 (D.C. 1997);
Parish v. Jumpking, Inc., 719 N.W.2d 540 (Iowa 2006); Toyota Motor Corp.
v. Gregory, 126 S.W.3d 35 (Ky. 2004).
211 E.g., Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837
(8th Cir. 2001) (Ark. law); Dart v. Wiebe Mfg., Inc., 147 Ariz. 242, 709 P.2d
876 (1985); Banks v. ICI Americas, Inc., 264 Ga. 732, 736, 450 S.E.2d 671,
674 (1994) (jury “may consider” safer designs); Mikolajczyk v. Ford Motor
Co., 231 Ill.2d 516, 901 N.E.2d 329 (2008).
212 E.g., Osorio v. One World Technologies Inc., 659 F.3d 81 (1st Cir.
2011) (Mass. law); Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199,
694 A.2d 1319 (1997); Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 901
N.E.2d 329 (2008); Kallio v. Ford Motor Co., 407 N.W.2d 92 (Minn. 1987);
Vautour v. Body Masters Sports Industries, Inc., 147 N.H. 150, 784 A.2d
1178 (2001).
213 See, e.g., Vautour v. Body Masters Sports Industries, Inc., 147
N.H. 150, 784 A.2d 1178 (2001) (requiring reasonable alternative design
tends to limits the inferences that can be drawn from the evidence before
the evidence is even presented, and may eliminate just claims); Godoy ex
rel. Grambling v. E.I. DuPont de Nemours and Co., 319 Wis.2d 91, 768
N.W.2d 674 (2009) (to adopt such a requirement would “impose an
expensive burden and require a battle of experts over competing product
designs”).
214 E.g., Delaney v. Deere and Co., 268 Kan. 769, 999 P.2d 930 (2000);
Godoy ex rel. Grambling v. E.I. DuPont de Nemours and Co., 319 Wis.2d
91, 768 N.W.2d 674 (2009). See § 33.6.
215 Those courts place the burden of proving the absence of a
reasonable alternative design on the defendant, although they may not
make it an essential element of defendant’s proof. See, e.g., Caterpillar
Tractor Co. v. Beck, 593 P.3d 871 (Alaska 1979); Barker v. Lull
Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, 96
A.L.R.3d 1 (1978). See § 33.12.
2008) (“[T]here typically is nothing wrong with a product that simply
possesses inherent dangers that cannot feasibly be designed away.”).
217 Restatement Third of Torts (Products Liability) § 2, cmt. f (1998).
This substantive rule may be defeated by evidentiary requirements
imposed in federal courts, and in many state courts. See 2 Dobbs, Hayden
218 E.g., Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137, 484
A.2d 1225 (1984).
219 See Bagley v. Mazda Motor Corp., 864 So.2d 301 (Ala. 2003);
Smith v. Keller Ladder Co., 275 N.J. Super. 280, 645 A.2d 1269 (1994).
220 Artis v. Corona Corp. of Japan, 703 A.2d 1214 (D.C. 1997).
221 See Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62 (1st Cir.
2002); Honda of America Mfg., Inc. v. Norman, 104 S.W.3d 600 (Tex. App.
2003).
222 Restatement Third of Torts (Products Liability) § 2, cmt. f (1998)
(other products already on the market may serve as reasonable
alternatives).
223 Stallings v. Black and Decker (U.S.), Inc., 342 Ill. App.3d 676, 277
Ill.Dec. 428, 796 N.E.2d 143 (2003); see also Goodner v. Hyundai Motor
Co., Ltd., 650 F.3d 1034 (5th Cir. 2011) (economic feasibility of an
alternative design was established by evidence that the manufacturer
itself used a different design in some of its own vehicles).
224 Restatement Third of Torts (Products Liability) § 2, cmt. f (1998).
225 See, e.g., Casey v. Toyota Motor Engineering & Mfg. North
America, Inc., 770 F.3d 322 (5th Cir. 2014) (Texas law); Colon ex rel.
Molina v. BIC USA, Inc., 199 F.Supp. 2d 53 (S.D.N.Y. 2001); Volpe v. IKO
Industries, Ltd., 327 Ill.App.3d 567, 763 N.E.2d 870, 261 Ill.Dec. 621
(2002).
2011 & Supp.).
227 See David G. Owen, Products Liability Law § 6.3, at 368–71 (2d
ed. 2008).
228 Ault v. International Harvester Co., 13 Cal.3d 113, 528 P.2d 1148,
117 Cal.Rptr. 812, 74 A.L.R.3d 986 (1974); Forma Scientific, Inc. v.
Biosera, Inc., 960 P.2d 108 (Colo. 1998); McFarland v. Bruno Mach. Corp.,
68 Ohio St.3d 305, 626 N.E.2d 659 (1994); Caprara v. Chrysler Corp., 52
N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981) (rejecting blanket
exclusion). Federal Rule of Evidence 703 provides that subsequent
remedial measures are not admissible to prove “negligence, culpable
conduct, a defect in the product’s design, or a need for warning or
instruction,” but contains an exception where the evidence is offered for
“another purpose,” such as the “feasibility of precautionary measures, if
controverted.” Many states have similar evidence rules.
229 See Duchess v. Langston Corp., 564 Pa. 529, 769 A.2d 1131 (2001)
(where defendant put feasibility in issue, trial judge may admit evidence of
subsequent remedial changes).
230 Cf. Brown v. Superior Court, 44 Cal.3d 1049, 245 Cal.Rptr. 412,
751 P.2d 470 (1988); Restatement Third of Torts (Products Liability) § 2,
cmt. e (1998).
231 Brown v. Superior Court, 44 Cal.3d 1049, 751 P.2d 470, 245
Cal.Rptr. 412 (1988) (“[D]efendants’ attempt to confine the issue to
whether there is an ‘alternative design’ for DES poses the problem in an
‘unreasonably narrow’ fashion.”).
232 See Richard L. Cupp, Jr., Defining the Boundaries of “Alternative
Design” Under the Restatement (Third) of Torts: the Nature and Role of
Substitute Products in Design Defect Analysis, 63 Tenn. L. Rev. 329, 348
(1996).
233 When a product is purchased chiefly for its aesthetic appeal, that
appeal could be considered to be its “function.” Toys and games, appealing
to senses that are not easily described in terms of function or aesthetics,
present special challenges, especially where a degree of danger is part of
the attraction for users.
234 See Richard L. Cupp, Jr., Defining the Boundaries of “Alternative
Design” Under the Restatement (Third) of Torts: the Nature and Role of
Substitute Products in Design Defect Analysis, 63 Tenn. L. Rev. 329, 365
(1996) (“cross-elasticity of demand”).
235 Garnsey v. Morbark Indus., Inc., 971 F.Supp. 668 (N.D. N.Y.
1997).
236 Cf. Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir. 2002) (evidence
sufficed to show negligence in design based largely on the fact of
acceleration).
237 See Frank J. Vandall, The Restatement (Third) of Torts: Products
Liability Section 2(b): The Reasonable Alternative Design Requirement, 61
Tenn. L. Rev. 1407, 1423 (1994).
238 Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979);
Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d
443 (1978); Ontai v. Straub Clinic and Hosp., Inc., 66 Haw. 237, 659 P.2d
734 (1983). Also Puerto Rico, Quintana-Ruiz v. Hyundai Motor Corp., 303
F.3d 62 (1st Cir. 2002).
239 Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225,
573 P.2d 443 (1978).
240 See Pannu v. Land Rover North America, Inc., 191 Cal. App. 4th
1298, 120 Cal. Rptr. 3d 605 (2011) (affirming plaintiff’s verdict, where
defendant failed to prove that SUV was not defective in design with
respect to its tendency to roll over; evidence showed that the benefits of
the design did not outweigh the inherent risks, and that inexpensive
modifications could have greatly improved rollover resistance).
241 Campbell v. General Motors Corp., 32 Cal.3d 112, 184 Cal.Rptr.
891, 649 P.2d 224 (1982).
242 The plaintiff is of course free to assert negligence with its
emphasis on unreasonable risks whether Barker v. Lull is adopted or not,
see Green v. Smith & Nephew AHP, Inc., 245 Wis.2d 772, 629 N.W.2d 727
(2001), but that would not entail a shift of the burden of proof.
243 E.g., Ray v. Bic Corp., 925 S.W.2d 527 (Tenn. 1996) (describing the
burden shift as an aberration).
244 See Restatement Third of Torts (Products Liability) § 2(b) & cmts.
c, d & f (1998).
245 Restatement Third of Torts (Products Liability) § 2(c) (1998). A
reasonable warning might require a warning about use with other
products. For example, a propane supplier might be obliged to warn
against storage in old or corroded tanks, even though the supplier does not
provide the tanks. See Robles v. Shoreside Petroleum, Inc., 29 P.3d 838
(Alaska 2001). Or a respirator manufacturer could owe a duty to warn of
the dangers of asbestos, where the respirators created the danger of
exposure to asbestos when they were cleaned and then reused, which was
an intended use. See Macias v. Saberhagen Holdings, Inc., 175 Wash. 2d
402, 282 P.3d 1069 (2012).
246 E.g., Rosa v. Taser Intern., Inc., 684 F.3d 941 (9th Cir. 2012)
(manufacturer of taser had no duty to warn of the risk that the application
of the taser to a human could cause fatal levels of metabolic acidosis,
where that risk was not known or knowable prior to the taser’s
distribution); Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d 987,
810 P.2d 549, 281 Cal.Rptr. 528 (1991); Vassallo v. Baxter Healthcare
Corp., 428 Mass. 1, 696 N.E.2d 909 (1998).
247 Restatement Third of Torts (Products Liability) § 2(c) (1998). For
two reasons, this formulation of the rule is arguably too narrow. First,
even a reasonably safe product might be even safer with a reasonable
warning. Second, the warning sometimes provides information analogous
to that required of a physician in informed-consent cases, namely, of
information that would be material. See § 21.11 (informed consent).
248 See David G. Owen, Defectiveness Restated: Exploding the “Strict”
Products Liability Myth, 1996 U. Ill. L. Rev. 743 (1996).
249 E.g., Olson v. Prosoco, Inc., 522 N.W.2d 284 (Iowa 1994); Georgia
Pacific, LLC v. Farrar, 432 Md. 523, 69 A.3d 1028 (2013).
250 E.g., Carlin v. Superior Court, 13 Cal.4th 1104, 920 P.2d 1347, 56
Cal.Rptr.2d 162 (1996).
251 See Rohde v. Smiths Medical, 165 P.3d 433 (Wyo. 2007) (“Unlike
traditional strict liability claims, a claim for failure to provide adequate
warnings incorporates some negligence components in determining
whether a warning is necessary and/or whether the warnings provided
were adequate.”).
252 A person injured by a product may be found to be a “user” even
where he never purchased the product at all; a duty to warn such a person
thus may be owed. See Patch v. Hillerich & Bradsby Co., 361 Mont. 241,
257 P.3d 383 (2011) (child was struck by batted ball that came off a bat
manufactured by defendant; child was a “user” of the product; jury verdict
for plaintiff on failure-to-warn theory affirmed).
253 E.g., Lewis v. American Cyanamid Co., 155 N.J. 544, 715 A.2d 967
(1998); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex.
1998). Since obvious danger furnishes a kind of warning, this rule is
exactly parallel to the rule that a product may be defective even if its
danger is obvious, as to which see Ogletree v. Navistar Intern. Transp.
Corp., 269 Ga. 443, 500 S.E.2d 570 (1998).
254 See Restatement Third of Torts (Products Liability) § 2, cmt. i
(1998) (Subsection (c) on warnings adopts a reasonableness test that
parallels Subsection (b), on design defects) and cmt. k (risk-utility balance
in allergy cases reflects risk-utility balance used in warnings cases
generally).
255 See Ross Laboratories Div. of Abbott Laboratories v. Thies, 725
P.2d 1076 (Alaska 1986).
256 See Cotton v. Buckeye Gas Products Co., 840 F.2d 935, 938 (D.C.
Cir. 1988).
257 James A. Henderson, Jr. & Aaron D. Twerski, Doctrinal Collapse
in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U. L.
Rev. 265, 296 (1990); see also Mark Geistfeld, Inadequate Product
Warnings and Causation, 30 U. Mich. J.L. Ref. 309 (1997) (supporting
risk-utility analysis in warnings cases, with detailed workout on costs and
proposed interrogatories to the jury). The information-overload argument
has been applied in determining what disclosures are required in
securities cases. See TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449,
96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976).
258 See Restatement Third of Torts (Products Liability) § 2, Illus. 11
(1998). Where the manufacturer has provided no warning at all, whether
that failure to warn rendered the product unreasonably dangerous is also
for the jury. See, e.g., Moore v. Ford Motor Co., 332 S.W.3d 749 (Mo. 2011).
259 See, e.g., In re Prempro Products Liab. Litigation, 514 F.3d 825
(8th Cir. 2008); cf. Carrier v. City of Amite, 50 So. 3d 1247 (La. 2010)
(retailer of bicycle helmets can safely assume that a customer will ask for
particular instructions about fitting if he wants them; there is no duty to
volunteer those instructions).
260 Ford Motor Co. v. Rushford, 868 N.E.2d 806 (Ind. 2007) (“[A]bsent
special circumstances, if the manufacturer provides adequate warnings of
the danger of its product and the seller passes this warning along to the
buyer or consumer, then the seller has no obligation to provide additional
warnings.”).
261 See § 33.8.
262 E.g., Ex parte Chevron Chemical Co., 720 So.2d 922 (Ala. 1998);
Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995); Restatement Third
of Torts (Products Liability) § 2, cmt. j (1998).
263 Mills v. Giant of Maryland, LLC, 508 F.3d 11 (D.C. Cir. 2007) (no
duty to warn of dangers of milk to the lactose-intolerant); Glittenberg v.
Doughboy Recreational Industries, 441 Mich. 379, 491 N.W.2d 208 (1992)
(no duty to warn of dangers of diving headfirst into an above-ground
swimming pool).
264 E.g., Keogh v. W.R. Grasle, Inc., 816 P.2d 1343 (Alaska 1991) (jury
found ordinary user would recognize danger of high voltage system,
judgment for defendant affirmed); Smith v. Minster Mach. Co., 233 A.D.2d
892, 649 N.Y.S.2d 257 (1996) (obviousness a jury question; summary
judgment denied); see also Maneely v. General Motors Corp., 108 F.3d
1176 (9th Cir. 1997) (stating rule; risk of riding in pickup truck bed was
obvious as a matter of law).
265 See Maneely v. General Motors Corp., 108 F.3d 1176, 1180 (9th
Cir. 1997) (riding in the cargo bed of a pickup); Sollami v. Eaton, 201 Ill.2d
1, 772 N.E.2d 215, 265 Ill.Dec. 177 (2002) (“rocket jumping” on a
trampoline; falling from heights is an obvious danger, eliminating any
need for warnings).
266 See Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir. 1999)
(Calabresi, J., explaining the two warning functions and why obvious
danger does not eliminate the need for the informative warning in certain
cases).
267 E.g., Ford Motor Co. v. Rushford, 868 N.E.2d 806 (Ind. 2007);
Bond v. Lincoln Elec. Co., 179 Ohio App.3d 559, 902 N.E.2d 1023 (2008).
268 E.g., Koruba v. American Honda Motor Co., 396 N.J. Super. 517,
935 A.2d 787 (App. Div. 2007); Town of Bridport v. Sterling Clark Lurton
Corp., 166 Vt. 304, 693 A.2d 701 (1997).
269 Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 657 (1st Cir.
1981); see David G. Owen, Products Liability Law § 9.3, at 597–602 (2d ed.
2008).
270 See, e.g., Gray v. Badger Mining Corp., 676 N.W.2d 268 (Minn.
2004) (warning must attract the user’s attention, explain the “mechanism
and mode of injury” and provide instructions for safe use).
271 See Wood v. Old Trapper Taxi, 286 Mont. 18, 952 P.2d 1375 (1997)
(manufacturer of radio tower failed to warn against erecting tower without
guy wires).
272 Martin v. Hacker, 83 N.Y.2d 1, 11, 628 N.E.2d 1308, 1313, 607
N.Y.S.2d 598, 603 (1993) (language of warning must be “direct,
unequivocal and sufficiently forceful to convey the risk”).
273 Brown v. Glaxo, Inc., 790 So.2d 35 (La. App. 2000) (evidence that
oral warnings were inconsistent with written warnings was sufficient to
support a jury finding for plaintiff); Levey v. Yamaha Motor Corp., 361
N.J. Super. 312, 825 A.2d 554 (App. Div. 2003) (“seller vitiated the
effectiveness” of written warnings and instructions by demonstrating the
product to potential customers in a manner that violated those very
instructions).
274 McFadden v. Haritatos, 86 A.D.2d 761, 448 N.Y.S.2d 79 (1982)
(prescription drug; warning was diluted by statement that adverse
reactions disappear when drug is discontinued).
275 Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 955 P.2d 661
(1998) (manufacturer of ATV warned against “jumping” with vehicles but
depicted its use in rough desert terrain).
276 See Martin v. Hacker, 83 N.Y.2d 1, 628 N.E.2d 1308, 607 N.Y.S.2d
598 (1993) (inconsistencies may dilute warning, but whether it is adequate
depends upon overall clarity; the force of the warning may be strong
enough to outweigh inconsistencies).
277 See Ross Laboratories, a Division of Abbott Laboratories v. Thies,
725 P.2d 1076 (Alaska 1986) (undiluted glucose marketed in baby bottle
with nipple). Thus lawn darts that can readily pierce a child’s skull and
enter the brain should not be marketed as toys. See First National Bank of
Dwight v. Regent Sports Corp., 803 F.2d 1431 (7th Cir. 1986). They are
now banned altogether. See 16 C.F.R. § 1306.4 and 16 C.F.R. § 1500.18.
278 Evridge v. American Honda Motor Co., 685 S.W.2d 632 (Tenn.
1985); cf. Benjamin v. Wal-Mart Stores, Inc., 185 Or.App. 444, 61 P.3d 257
(2002) (direction not to use warmer in tent failed to warn that such use
could be fatal).
279 McConnell v. Cosco, 238 F.Supp.2d 970 (S.D. Ohio 2003).
280 See Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997) (a
meat grinder-mixer directed users to keep fingers out of specified areas,
but did not warn that the blades continued to revolve for a substantial
time after the machine was turned off; the direction to keep fingers out
was treated as a full warning, although the plaintiff lost her fingers in
attempting to clean the machine after it was off).
281 See Fyssakis v. Knight Equipment Corp., 108 Nev. 212, 826 P.2d
570 (1992) (corrosive cleaner should warn that blindness can result).
282 MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475
N.E.2d 65 (1985).
283 Gray v. Badger Mining Corp., 676 N.W.2d 268 (Minn. 2004); Town
of Bridport v. Sterling Clark Lurton Corp., 166 Vt. 304, 693 A.2d 701
(1997).
284 Bloxom v. Bloxom, 512 So.2d 839 (La. 1987) (Pontiac Firebird
must be parked on pavement because its exhaust system will ignite leaves
or grass, but the only warning was buried in the 100-page owner’s
manual), superseded by statute on other grounds, La. Rev. Stat. § 9:2800.54
(a).
285 See General Motors Corp. v. Saenz, 873 S.W.2d 353 (Tex. 1993).
286 Ramirez v. Plough, Inc., 6 Cal.4th 539, 25 Cal.Rptr.2d 97, 863 P.2d
167 (1993).
287 Hubbard-Hall Chemical Co. v. Silverman, 340 F.2d 402 (1st Cir.
1965) (suggesting skull and crossbones on deadly poison used by
agricultural workers); Campos v. Firestone Tire & Rubber Co., 98 N.J.
198, 485 A.2d 305 (1984) (“In view of the unskilled or semi-skilled nature
of the work and the existence of many in the work force who do not read
English, warnings in the form of symbols might have been appropriate”).
See Marjorie A. Caner, Annotation, Products Liability: Failure to Provide
Product Warning or Instruction in Foreign Language or to Use Universally
Accepted Pictographs or Symbols, 27 A.L.R.5th 697 (1995); David G.
Owen, Products Liability Law § 9.3, at 604–09 (2d ed. 2008) (providing
pictorial examples of several graphic warnings).
288 See Farias v. Mr. Heater, Inc., 684 F.3d 1231 (11th Cir. 2012)
(applying Florida law; English language and pictorial warnings on box
that held propane gas heater accurately and warned even a Spanish-
speaking consumer such as the plaintiff of the dangers of using the
product inside a home).
289 Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120
L.Ed.2d 407 (1992).
290 See § 33.20.
291 Section 6 of the Products Restatement limits this duty stringently
to cases in which the properly informed healthcare professional would not
prescribe the product for “any class” of patients. Hansen v. Baxter
Healthcare Corp., 198 Ill.2d 420, 764 N.E.2d 35, 261 Ill.Dec. 744 (2002),
imposed a duty to warn without passing on the “any class of patients”
limitation.
292 E.g., Simon v. Wyeth Pharmaceuticals, Inc., 989 A.2d 356 (Pa.
Super. 2009) (patient satisfied causation requirement by testifying that
she would not have taken hormone-replacement drug had doctor informed
her of risks that it would cause cancer); see also Hoffman-LaRoche Inc. v.
Mason, 27 So.3d 75 (Fla. Dist. Ct. App. 2009) (plaintiff failed to prove
causation where doctor testified that even if he had been adequately
warned, he would have prescribed the drug anyway).
293 E.g., Stone v. Smith, Kline & French Laboratories, 447 So. 2d 1301
(Ala. 1984); Humes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990)
Restatement Third of Torts (Products Liability) § 6(d) (1998). Although the
doctor is not chronologically an intermediary between pharmacist and
patient, the doctor is the final and only decision-maker about the choice of
drug. Hence the pharmacist is traditionally not liable for failure to warn
about a drug’s inherent dangers. See Kowalski v. Rose Drugs of
Dardanelle, Inc., 2011 Ark. 44, 378 S.W.3d 109 (2011); Klasch v. Walgreen
Co., 264 P.3d 1155 (Nev. 2011); Coyle v. Richardson-Merrell, Inc., 526 Pa.
208, 584 A.2d 1383 (1991).
294 E.g., Centocor, Inc. v. Hamilton, 372 S.W.3d 140 (Tex. 2012)
(adopting the rule, exhaustively reviewing the cases from other
jurisdictions). See Richard C. Ausness, Learned Intermediaries and
Sophisticated Users: Encouraging the Use of Intermediaries to Transmit
Product Safety Information, 46 Syracuse L. Rev. 1185 (1996).
295 E.g., Morguson v. 3M Co., 857 So.2d 796 (Ala. 2003) (vent tubing
used in bypass surgery); Hurley v. Heart Physicians, P.C., 278 Conn. 305,
898 A.2d 777 (2006) (pacemaker); Craft v. Peebles, 78 Haw. 287, 893 P.2d
138 (1995) (breast implant); Rohde v. Smiths Medical, 165 P.3d 433 (Wyo.
2007) (venous access device).
296 Coyle v. Richardson-Merrell, Inc., 526 Pa. 208, 584 A.2d 1383
(1991); Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 79 P.3d 922 (Utah
2003). Schaerrer’s scope was limited in Downing v. Hyland Pharmacy, 194
P.3d 944 (Utah 2008), which held that the learned intermediary doctrine
could not protect a pharmacist from negligence liability for continuing to
fill prescriptions for a drug that had been withdrawn from the market by
the FDA, without informing patients of that fact. See also Klasch v.
Walgreen Co., 264 P.3d 1155 (Nev. 2011) (citing a number of cases).
297 Rite Aid Corp. v. Levy-Gray, 391 Md. 608, 894 A.2d 563 (2006) (a
warranty found on the basis of the pharmacy-generated advice and
directions accompanying the prescription drug).
298 Restatement Third of Torts (Products Liability), § 6, cmt. e (1998).
But cf. Macias v. State of California, 10 Cal.4th 844, 42 Cal.Rptr.2d 592,
897 P.2d 530 (1995) (manufacturers of poison sold to state for widespread
spraying by helicopter had no duty to correct state’s widely publicized
misinformation about dangers).
299 See Centocor, Inc. v. Hamilton, 310 S.W.3d 476 (Tex. App. 2010)
(seeing the need for an exception to the rule in such cases because “the
premises underlying the doctrine are unpersuasive when considered in
light of direct marketing to patients”).
300 Perez v. Wyeth Laboratories Inc., 161 N.J. 1, 734 A.2d 1245 (1999)
(Norplant, a contraceptive drug-implant, advertised directly to potential
users).
301 State ex rel. Johnson & Johnson Corp. v. Karl, 220 W.Va. 463, 647
S.E.2d 899 (2007).
302 See Klasch v. Walgreen Co., 264 P.3d 1155 (Nev. 2011).
303 See Downing v. Hyland Pharmacy, 194 P.3d 944 (Utah 2008).
304 See Johnson v. American Standard, Inc., 43 Cal.4th 56, 179 P.3d
905, 74 Cal.Rptr.3d 108 (2008).
305 See, e.g., First Nat’l Bank and Trust Corp. v. American Eurocopter
Corp., 378 F.3d 682 (7th Cir. 2004) (manufacturer owed duty to warn its
sophisticated customer of hidden dangers of helicopter rotor blades, but
under Indiana law owed no duty to provide a warning directly to the
ultimate user of the helicopter, who was killed by the blades).
306 See Vitanza v. Upjohn Co., 257 Conn. 365, 778 A.2d 829 (2001)
(distinguishing between learned intermediaries and sophisticated users).
307 See Swan v. I.P., Inc., 613 So.2d 846 (Miss. 1993) (manufacturer
supplied chemical to contractor; contractor working on a school, seriously
injured teacher by exposing her to the product); Randy R. Koenders,
Products Liability: Liability of Manufacturer or Seller as Affected by
Failure of Subsequent Party in Distribution Chain to Remedy or Warn
against Defect of Which He Knew, 45 A.L.R.4th 777 (1987).
308 E.g., Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346
(2008); Ford Motor Co. v. Boomer, 285 Va. 141, 736 S.E.2d 724 (2013).
Proof of factual causation in an inadequate-warning case may require
expert testimony. See, e.g., Nationwide Mut. Ins. Co. v. Barton Solvents
Inc., 855 N.W.2d 145 (S.D. 2014).
309 Superseding cause arguments are often dealt with under the
rubric of misuse and modification. As to these, see § 33.18.
310 E.g., Riley v. American Honda Motor Co., 259 Mont. 128, 856 P.2d
196 (1993).
311 E.g., In re Prempro Products Liab. Litigation, 586 F.3d 547 (8th
Cir. 2009) (applying Arkansas law, noting that the vast majority of states
apply this presumption); Thom v. Bristol-Myers Squibb Co., 353 F.3d 848
(10th Cir. 2003) (Wyoming law). See generally Benjamin J. Jones,
Annotation, Presumption or Inference, in Products Liability Action Based
on Failure to Warn, That User of Product Would Have Heeded an
Adequate Warning Had One Been Given, 38 A.L.R.5th 683 (1996).
312 See Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 604 A.2d 445
(1992) (inference); Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710
(1993) (presumption that warnings to employer will be heeded, although
defendant may show that the employer would not have passed on the
warning). The plaintiff may adduce direct testimony on this issue, as in In
re Levaquin Products Liability Litigation, 700 F.3d 1161 (8th Cir. 2012)
(doctor testified that he would not have prescribed the drug had he been
given the warning).
313 See, e.g., Schilf v. Eli Lilly & Co., 687 F.3d 947 (8th Cir. 2012) (fact
issue on whether an adequate warning would have changed doctor’s
decision to give medication to patient precluded summary judgment).
314 See, e.g., Evans v. Lorillard, 465 Mass 411, 990 N.E.2d 997 (2013)
(defendant failed to rebut presumption).
315 Coffman v. Keene Corp., 133 N.J. 581, 599, 628 A.2d 710, 718
(1993) (“The heeding presumption thus serves to reinforce the basic duty
to warn.”).
316 Daniel v. Ben E. Keith Co., 97 F.3d 1329 (10th Cir. 1996); Bushong
v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992) (apparently treating
warning as content-inadequate).
317 Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir. 1984).
318 See East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1124 (D.C.
1990); Town of Bridport v. Sterling Clark Lurton Corp., 166 Vt. 304, 693
A.2d 701 (1997).
319 Gosewisch v. American Honda Motor Co., 153 Ariz. 400, 737 P.2d
376 (1987), overruled on other grounds, Jimenez v. Sears, Roebuck and
Co., 183 Ariz. 399, 904 P.2d 861 (1995).
320 In re Prempro Products Liab. Litigation, 514 F.3d 825 (8th Cir.
2008).
321 Conti v. Ford Motor Co., 743 F.2d 195 (3d Cir. 1984) (driver
inadvertently started standard-transmission car in reverse gear while wife
was getting in; warning would not have avoided wife’s injury).
322 See Shelcusky v. Garjulio, 172 N.J. 185, 797 A.2d 138 (2002).
323 See generally §§ 15.14 to 15.19.
324 See § 33.18.
325 Restatement Second of Torts § 402A cmt. n (1965).
326 Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807
(2006).
327 E.g., Smith v. Ingersoll-Rand Co., 14 P.3d 990 (Alaska 2000); Daly
v. General Motors Corp., 20 Cal.3d 725, 575 P.2d 1162, 144 Cal.Rptr. 380
(1978); Fuchsgruber v. Custom Accessories, Inc., 244 Wis. 2d 758, 628
N.W.2d 833 (2001). Some statutes specifically prescribe comparative fault
reductions in products cases. E.g., Colo. Rev. Stats. § 13–21–406. Where a
comparative fault statute by its terms addresses “negligence” cases only,
courts must determine whether to judicially supplement the statute at all,
and if so whether to do so in “strict liability” cases.
329 See Jurado v. Western Gear Works, 131 N.J. 375, 387, 619 A.2d
1312, 1318 (1993); Theer v. Philip Carey Co., 133 N.J. 610, 622, 628 A.2d
724, 730 (1993).
330 Carrel v. Allied Prods. Corp., 78 Ohio St.3d 284, 677 N.E.2d 795
(1997); cf. Green v. Edmands Co., 639 F.2d 286 (5th Cir. 1981) (no
alternative way to accomplish job task, no assumed risk).
331 See generally § 17.6.
332 Cf. Daly v. General Motors Corp., 20 Cal.3d 725, 575 P.2d 1162,
144 Cal.Rptr. 380 (1978) (driver killed, comparative fault rule adopted).
333 E.g., Wangsness v. Builders Cashway, Inc., 779 N.W.2d 136 (S.D.
2010).
334 Cases finding no defect because danger was generally known are
like this. E.g., Farnham v. Bombardier, Inc., 161 Vt. 619, 640 A.2d 47
(1994) (snowmobile dangers); Elliott v. Brunswick Corp., 903 F.2d 1505
(11th Cir. 1990) (motorboat propeller not defective because dangers were
inherent and known).
335 See Ogletree v. Navistar Intern. Transp. Corp., 269 Ga. 443, 500
S.E.2d 570 (1998); Carrel v. Allied Products Corp., 78 Ohio St.3d 284, 677
N.E.2d 795 (1997).
336 See Gary D. Spivey, Annotation, Products Liability: Contributory
Negligence or Assumption of Risk as Defense Under Doctrine of Strict
Liability in Tort, 46 A.L.R.3d 240 (1973).
337 Bowling v. Heil Co., 31 Ohio St. 3d 277, 511 N.E.2d 373 (1987);
Jay v. Moog Automotive, Inc., 264 Neb. 875, 652 N.W.2d 872 (2002); Kimco
Development Corp. v. Michael D’s Carpet Outlets, 536 Pa. 1, 637 A.2d 603
(1993); Smith v. Smith, 278 N.W.2d 155 (S.D. 1979). In some states,
statutes have displaced judicial decisions that once so held.
338 Bowling v. Heil Co., 31 Ohio St. 3d 277, 511 N.E.2d 373 (1987).
339 E.g., Krajewski v. Enderes Tool Co., 469 F.3d 705 (8th Cir. 2006)
(plaintiff’s use of pry bar without wearing goggles constituted an
assumption of risk of eye injury, under Nebraska law); Onderko v.
Richmond Mfg. Co., 31 Ohio St. 3d 296, 511 N.E.2d 388 (1987)
(assumption of risk is a complete bar to strict liability claim but is treated
as comparative negligence if the plaintiff sues for negligence). Accord, that
assumption of risk is a complete bar, Jimenez v. Sears, Roebuck & Co., 183
Ariz. 399, 904 P.2d 861 (1995).
340 See Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997).
341 E.g., Jimenez v. Sears, Roebuck and Co., 183 Ariz. 399, 904 P.2d
861 (1995); Coney v. J.L.G. Indus., Inc., 97 Ill.2d 104, 454 N.E.2d 197, 73
Ill.Dec. 337 (1983); Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 607 A.2d
637 (1992); General Motors Corp. v. Sanchez, 997 S.W.2d 584 (Tex. 1999).
Some statutes so provide. E.g., Idaho Code § 6–1305.
342 Kassouf v. Lee Bros., Inc., 209 Cal.App.2d 568, 26 Cal.Rptr. 276
(1962).
343 Smith v. Smith, 278 N.W.2d 155 (S.D. 1979).
344 Cf. Smith v. Ingersoll-Rand Co., 14 P.3d 990 (Alaska 2000) (failure
to wear a hard hat, any form of plaintiff fault can be considered under
comparative fault statute).
345 See Jay v. Moog Automotive, Inc., 264 Neb. 875, 652 N.W.2d 872
(2002) (“Failure to follow plain and unambiguous instructions is a misuse
of the product,” and misuse is a defense).
346 The Texas Court made this point when a defective parking-gear
design permitted a truck to pop out of gear and roll, crushing the owner.
While the court held that mere failure to discover a product defect is not
contributory fault that will bar or reduce recovery, it also held that the
user might be chargeable with fault in parking unsafely, quite
independent of the defect; if so, his damages would be reduced accordingly.
General Motors v. Sanchez, 997 S.W.2d 584 (Tex. 1999).
347 Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 412, 290 A.2d 281, 286
(N.J.1972).
348 Webb v. Navistar Intern. Transp. Corp., 166 Vt. 119, 692 A.2d 343,
356 (1996) (Johnson, J., dissenting); cf. Daly v. General Motors Corp., 20
Cal.3d 725, 760, 575 P.2d 1162, 1183, 144 Cal.Rptr. 380, 401 (1978) (Mosk,
J., dissenting) (“The defective product is comparable to a time bomb ready
to explode; it maims its victims indiscriminately, the righteous and the
evil, the careful and the careless.”).
349 See Howard A. Latin, Problem-Solving Behavior and Theories of
Tort Liability, 73 Calif. L. Rev. 677, 732 (1985) (emphasizing that most
accidents are due to momentary lapses); Howard Latin, “Good” Warnings,
Bad Products, and Cognitive Limitations, 41 U.C.L.A. L. Rev. 1193, 1254
(1994) (people can learn about risks but product engineers can learn
better).
350 Daly v. General Motors Corp., 20 Cal.3d 725, 734, 144 Cal.Rptr.
380, 385, 575 P.2d 1162, 1167 (1978); Coney v. J.L.G. Indus., Inc., 97 Ill.2d
104, 454 N.E.2d 197, 73 Ill.Dec. 337 (1983).
351 Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984).
352 The language is relatively new to the law, and perhaps confusing.
It does not refer to factual cause. Perhaps comparative causation is best
understood as an effort to rate causal significance. Instead of concluding
that one actor’s contributions have no causal significance at all, as juries
might do in finding “no proximate cause,” juries can estimate the
importance of each cause—the plaintiff’s conduct and the defendant’s
defective product.
353 Restatement Third of Torts (Apportionment) § 8, cmt. a (2000).
354 See Chapman v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002);
Jurado v. Western Gear Works, 131 N.J. 375, 619 A.2d 1312 (1993);
Restatement Third of Torts (Products Liability) § 2, cmt. p (1998).
355 See Jurado v. Western Gear Works, 131 N.J. 375, 619 A.2d 1312
(1993); Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 571 N.E.2d 645, 569
N.Y.S.2d 337 (1991) (above-ground pool installed in-ground and provided
with a deck, giving the appearance of a deeper pool; alteration precluded
manufacturer liability); Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C.
468, 723 S.E.2d 753, Prod. Liab. Rep. (CCH) P 18830 (2012) (modification
of seat belt by plaintiff’s father, by simply placing the shoulder belt behind
the child passenger’s chest, provided a defense in a design defect case;
interpreting statutory language, the affirmative defense of alternation or
modification of the product by a “party” other than the manufacturer
applies not only to a party to the action, but to anyone other than the
manufacturer or seller).
356 See Matthews v. Remington Arms Co., Inc., 641 F.3d 635 (5th Cir.
2011) (applying Louisiana statute that makes a manufacturer liable only
when plaintiff’s harm arose from “a reasonably anticipated use of the
product by the claimant or another person or entity”; use of a rifle without
the bolt-assembly pin was not such a use, affirming verdict for defendant);
Payne v. Gardner, 56 So. 3d 229 (La. 2011) (same statute; riding on the
moving pendulum of an oil well pump was not a reasonably anticipated
use, and thus the plaintiff’s claim should have been dismissed with
prejudice).
357 Korando v. Uniroyal Goodrich Tire Co., 159 Ill.2d 335, 637 N.E.2d
1020, 202 Ill.Dec. 284 (1994).
358 See Jurado v. Western Gear Works, 131 N.J. 375, 388, 619 A.2d
1312, 1318 (1993).
359 Sears, Roebuck and Co. v. Harris, 630 So.2d 1018, 1027 (Ala. 1993)
(“A manufacturer or seller remains liable if the alteration or modification
did not in fact cause the injury.”).
360 See Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d 348,
52 A.L.R.4th 247 (1985).
361 See Tober v. Graco Children’s Products, Inc., 431 F.3d 572 (7th
Cir. 2005) (plaintiff had burden of proving, as one element of the claim,
that the product was expected to and did reach the consumer without
substantial alteration; statute describing alteration as defense available to
defendant did not mean to shift burden to the defendant, but only to
permit defendant to controvert the plaintiff’s prima facie case).
362 E.g., Sears, Roebuck and Co. v. Harris, 630 So.2d 1018 (Ala. 1993);
Hart-Albin Co. v. McLees Inc., 264 Mont. 1, 870 P.2d 51 (1994); Brown v.
U.S. Stove Co., 98 N.J. 155, 484 A.2d 1234 (1984).
363 E.g., Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d
348, 52 A.L.R.4th 247 (1985); Reid v. Spadone Mach. Co., 119 N.H. 457,
404 A.2d 1094 (1979), overruled on other grounds, Daigle v. City of
Portsmouth, 129 N.H. 561, 534 A.2d 689 (1987).
364 Reilly v. Dynamic Exploration, Inc., 571 So.2d 140 (La. 1990).
365 See Jerry J. Phillips, Products Liability for Personal Injury to
Minors, 56 Va. L. Rev. 1223 (1970). But cf. Halliday v. Sturm, Ruger &
Co., Inc., 368 Md. 186, 792 A.2d 1145 (2002) (death of small child who
found his father’s hidden gun which had been sold without safety lock, no
liability under consumer expectations test).
366 See Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979);
Slone v. General Motors Corp., 249 Va. 520, 457 S.E.2d 51 (1995).
367 Malen v. MTD Products, Inc., 628 F.3d 296 (7th Cir. 2010) (Ill.
law; the premise of the crashworthiness doctrine “is that some products,
although not made for certain purposes—such as accidents—should
nevertheless be reasonably designed to minimize the injury-producing
effect of an accident”); Collins v. Navistar, Inc., 214 Cal.App.4th 1486, 155
Cal.Rptr.3d 137 (2013) (truck manufacturer could be liable for defective
windshield that broke when struck by a chunk of concrete thrown from a
freeway overpass; issue for jury was whether a chunk of concrete was a
reasonably foreseeable road hazard); Jurado v. Western Gear Works, 131
N.J. 375, 619 A.2d 1312 (1993).
368 Green v. Ford Motor Co., 942 N.E.2d 791 (Ind. 2011) (jury could
apportion fault to motorist who sued manufacturer for enhanced injuries
allegedly caused by defective restraint system in vehicle); Alami v.
Volkswagen of America, Inc., 97 N.Y.2d 281, 766 N.E.2d 574, 739 N.Y.S.2d
867 (2002) (deceased’s intoxication caused crash, but manufacturer’s
unsafe design allegedly caused deadly injuries; rule that a serious
wrongdoing can recover nothing at all has no application to relieve
manufacturer of its duty).
369 Mazda Motor Corp. v. Lindahl, 706 A.2d 526 (Del. 1998); Jensen v.
American Suzuki Motor Corp., 136 Idaho 460, 35 P.3d 776 (2001).
370 See, e.g., Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241 (2d Cir.
1981); Jahn v. Hyundai Motor Co., 773 N.W.2d 550 (Iowa 2009); Egbert v.
Nissan Motor Co., 228 P.3d 737 (Utah 2010).
371 Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir. 1978); Mitchell v.
Volkswagenwerk AG, 669 F.2d 1199 (8th Cir. 1982); Polston v.
Boomershine Pontiac-GMC Truck, Inc., 262 Ga. 616, 423 S.E.2d 659
(1992).
Accord, Trull v. Volkswagen of America, Inc., 145 N.H. 259, 761 A.2d 477
(2000) (where injuries are indivisible, defendant has burden of showing
which injuries were caused by initial collision and which by the defect);
Johnson v. Ford Motor Co., 45 P.3d 86 (Okla. 2002) (defective seatbelt;
jury could find brain injury was single and indivisible; award of $5 million
affirmed).
373 See Hillrichs v. Avco Corp., 514 N.W.2d 94 (Iowa 1994).
374 See Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385
(Tex. 1991). Because the risks of alcohol are so well known, courts have
also routinely rejected claims that advertisements are misleading in
suggesting that alcohol may be safely consumed. See Gawloski v. Miller
Brewing Co., 96 Ohio App.3d 160, 644 N.E.2d 731 (1994) (citing cases).
375 General Motors Corp. v. Wolhar, 686 A.2d 170 (Del. 1996)
(seatbelt non-use admissible to show non-use as supervening cause of
injury); Monsanto Co. v. Reed, 950 S.W.2d 811 (Ky. 1997). Some statutes,
at least in form, prohibit all recovery when the product has been altered
even in a foreseeable way. See Ky. Rev. Stats. § 411.320 (1).
376 E.g., Landis v. Hearthmark, LLC, 232 W.Va. 64, 750 S.E.2d 280
(2013) (defendant could assert as a defense that parents’ conduct in
leaving a bottle of fire starter near a fireplace and within reach of their
child was an intervening cause of child’s injuries); Moyer v. United
Dominion Industries, Inc., 473 F.3d 532 (3d Cir. 2007) (evidence of long-
term misuse and improper maintenance of machine that injured plaintiff
was admissible on issue of causation).
377 E.g., Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046 (Ala.
2007); Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997).
378 E.g., Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d 439 (N.D.
1991).
379 E.g., Horn v. Fadal Machinery Centers, LLC, 972 So.2d 63 (Ala.
2007) (foreseeability of plaintiff’s misuse); Chairez v. James Hamiliton
Const. Co., 146 N.M. 794, 215 P.3d 732 (Ct. App. 2009) (foreseeability of
modification of defendant’s rock crusher); see also Collins v. Navistar, Inc.,
214 Cal.App.4th 1486, 155 Cal.Rptr.3d 137 (2013) (truck manufacturer
could be liable for defective windshield that broke when struck by a chunk
of concrete thrown from a freeway overpass; issue for jury was whether a
chunk of concrete was a reasonably foreseeable road hazard).
380 See Johnson v. Niagara Mach. & Tool Works, 555 So.2d 88 (Ala.
1989).
381 Chapman v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002) (failure to
heed warnings); Jimenez v. Sears, Roebuck and Co., 183 Ariz. 399, 904
P.2d 861 (1995); Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 454 N.E.2d
197, 73 Ill.Dec. 337 (1983).
382 See Daly v. General Motors Corp., 20 Cal.3d 725, 575 P.2d 1162,
144 Cal.Rptr. 380 (1978).
383 See § 33.21.
384 E.g., Mich. Comp. Laws Ann. § 600.2946a.
385 Ariz. Rev. Stat. § 12–683 (state of art); N.C. Gen. Stat. § 99B–1.1,
99B–4 & 99B–6 (no strict liability; state of the art defense for prescription
drugs; requirement of feasible alternative design); N.J. Stat. Ann. §
2A:58C–3 (manufacturer not liable if there was no feasible alternative
design); Ohio Rev. Code Ann. § 2307.75(A) (invoking risk-benefit test for
design defect cases).
386 See § 12.6.
387 See, e.g., Ark. Code Ann. § 16–116–104 (“consideration” may be
given to industry practice); Colo. Rev. Stat. § 13–21–403(1)(a) (rebuttably
presumed that product is nondefective if product conformed to the state of
the art “as distinguished from industry standards”); Kan. Stat. Ann. § 60–
3307(a) (evidence of industry’s improvements inadmissible); N.H. Stat.
Ann. § 507:8–g (an affirmative defense if risks were not discoverable using
“prevailing research and scientific techniques”).
388 Ky. Rev. Stat. § 411.310(2).
389 Ariz. Rev. Stat. § 12–683(1); Ind. Code § 34–20–5–1 (rebuttable
presumption when product conforms to “generally recognized state of the
art”).
390 Hughes v. Massey-Ferguson, Inc., 522 N.W.2d 294 (Iowa 1994).
391 Ariz. Rev. Stat. § 12–683 (“if the defendant proves”); Mo. Stat. §
537.764(2) (“defense” in warning claims); Iowa Code § 668.12 (no fault
assigned to one who pleads and proves state of the art); La. Rev. Stat. §
9:2800.59 (“if the manufacturer proves”); Neb. Rev. Stat. § 25–21,182
(“defense”).
392 Colo. Rev. Stat. Ann. § 13–21–403 (product rebuttably presumed
non-defective if it conformed to state of the art). This provision is difficult
to interpret, since the product is already “presumed” to be non-defective in
the sense that the plaintiff has the burden of production and persuasion.
393 Iowa Code § 668.12 (design, manufacturing and warning claims all
included); Ky. Rev. Stat. § 411.310 (if design, methods of manufacture and
testing conformed to prevailing standards, product “presumed”
nondefective).
394 Miss. Code Ann. § 11–1–63 (requiring that the manufacturer
should have known danger in warning and design defect case but making
no such requirement in manufacturing defect cases); Mo. Stat. § 537.764(2)
(state of the art is a complete defense and relevant evidence in strict
liability failure to warn claims); Neb. Rev. Stat. § 25–21,182 (state of art is
a defense in action for negligence, defective design, testing or labeling, no
mention of manufacturing defect).
395 Falada v. Trinity Industries, Inc., 642 N.W.2d 247 (Iowa 2002).
2011 & Supp.). The rule is the same with respect to a defendant’s
compliance with industry customs or standards. See Jablonski v. Ford
Motor Co., 2011 IL 110096, 353 Ill. Dec. 327, 955 N.E.2d 1138 (2011).
397 E.g., Dillon v. Nissan Motor Co., 986 F.2d 263 (8th Cir. 1993);
Wagner v. Clark Equipment Co., 243 Conn. 168, 700 A.2d 38 (1997).
Contra, Malcolm v. Evenflo Co., 352 Mont. 325, 217 P.3d 514 (2009)
(evidence that the defendant’s child safety seat complied with federal
motor vehicle safety standards was inadmissible in a design defect case,
expressly rejecting the Products Restatement).
398 Bammerlin v. Navistar Intern. Transp. Corp., 30 F.3d 898 (7th
Cir. 1994); Doyle v. Volkswagenwerk A.G., 267 Ga. 574, 481 S.E,.2d 518
(1997); Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W.Va. 209,
672 S.E.2d 345 (2008); Restatement Third of Torts (Products Liability) § 4
(1998).
399 Ark. Code Ann. § 16–116–105; Rev. Code Wash. § 7.72.050 (1) (but
providing a complete defense where the defendant was in compliance with
“a specific mandatory government contract specification”).
400 Colo. Rev. Stat. Ann. § 13–21–403(1)(b); Kan. Stat. Ann. 60–3304;
Tenn. Code Ann. § 29–28–104; see also Wright v. Ford Motor Co., 508 F.3d
263 (5th Cir. 2007) (applying Tex. Civ. Prac. & Rem. Code § 82.008).
401 See James A. Henderson, Jr., Manufacturers’ Liability for
Defective Product Design: A Proposed Statutory Reform, 56 N.C. L. Rev.
625, 632 (1978) (proposing to bar the plaintiff if the product complied with
a mandatory standard or regulation unless the plaintiff proved “by clear
and convincing evidence” and by “other facts” than already required to
prove her case, that the standards were inadequate).
402 Or. Rev. Stats. § 30.927 (as to regulated prescription drugs).
403 Federal agency regulations, as well as statutes, can establish
federal law having preemptive force. See Fellner v. Tri-Union Seafoods,
LLC, 539 F.3d 237 (3d Cir. 2008).
404 The preemption effect is not limited to products cases. It may
include such diverse matters of the safe (or unsafe) operation of railroads
and the denial of medical benefits due under employment medical plans.
For some examples, see §§ 18.8 & 21.22.
2011 & Supp.).
406 The Federal Employers Liability Act and its maritime companion
are two of the few that eliminate state-law rights and at the same time
furnish a federal substitute remedy. See 45 U.S.C.A. § 51; 46 U.S.C.A. §
688.
407 See Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 121
S.Ct. 1012, 148 L.Ed.2d 854 (2001).
408 Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120
L.Ed.2d 407 (1992).
409 Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 172 L.Ed.2d
398 (2008).
410 15 U.S.C.A. § 1203.
411 7 U.S.C.A. § 136v.
412 49 U.S.C.A. §§ 20701 et seq. (Locomotive Inspection Act). The Act
was held to preempt all state-law duties and standards of care directed to
the subject of locomotive equipment in Kurns v. Railroad Friction Products
Corp., 132 S. Ct. 1261 (2012), a products liability case brought by a former
railroad employee and his wife against the manufacturers of asbestos
brake pads and engine valves containing asbestos.
413 49 U.S.C.A. § 30103(b) & (e).
414 See Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 173 L.Ed.2d 51
(2009) (state-law failure to warn claims against a drug manufacturer not
preempted). Preemption has been found in this area frequently, however.
See Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 179 L. Ed. 2d 1 (2011)
(National Childhood Vaccine Injury Act preempts all design-defect claims
against vaccine manufacturers brought by plaintiffs who claimed injury
from the side-effects of vaccines); PLIVA, Inc. v. Mensing, 131 S.Ct. 2567,
180 L.Ed.2d 580 (2011) (federal law preempts state laws imposing a duty
on generic drug manufacturers to change a drug’s label); Mutual
Pharmaceutical Co. v. Bartlett, 133 S.Ct. 2466, 186 L.Ed.2d 607 (2013)
(federal law that expressly prohibits manufacturers of generic drugs from
making any unilateral changes to a drug’s label preempts design defect
claim under New Hampshire law in which plaintiff argued that generic
drug manufacturer failed to warn of the risks of certain diseases).
415 21 U.S.C.A. § 360k. Thus many claims of this type are expressly
preempted, see, e.g., Wolicki-Gables v. Arrow Intern., Inc., 634 F.3d 1296
(11th Cir. 2011); In re Medtronic, Inc., Sprint Fidelis Leads Products
Liability Litigation, 623 F.3d 1200 (8th Cir. 2010). In addition, suppliers of
biomedical materials are largely immunized unless they manufacture the
implant. See 21 U.S.C.A. § 1604.
416 15 U.S.C.A. § 2075(b) by its terms permits more demanding
regulation. In BIC Pen Corp. v. Carter, 251 S.W.3d 500 (Tex. 2008), the
court held that a design defect claim against a disposable lighter
manufacturer was impliedly preempted by Consumer Product Safety
Commission regulations, although a manufacturing defect claim was not.
417 See § 11.3.
418 See, e.g., Wood v. General Motors Corp., 865 F.2d 395 (1st Cir.
1988); Hernandez-Gomez v. Leonardo (Volkswagen of America, Inc.), 185
Ariz. 509, 917 P.2d 238 (1996).
419 See, e.g., Hughes v. Boston Scientific Corp., 631 F.3d 762 (5th Cir.
2011) (Medical Device Amendments to the FDC Act expressly preempt
state law claims purporting to impose liability despite manufacturer’s
compliance with FDA specifications for medical devices, but failure to
warn claims were neither expressly nor impliedly preempted).
420 Freightliner Corp. v. Myrick, 514 U.S. 280, 115 S.Ct. 1483, 131
L.Ed.2d 385 (1995). See also MCI Sales and Service, Inc. v. Hinton, 329
S.W.3d 475 (Tex. 2010) (relying on Freightliner, holding that claims that a
motorbus importer, assembler and seller should have installed seatbelts
and laminated glass windows were not preempted: “an agency’s mere
decision to leave an area unregulated is not enough to preempt state law”).
421 Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913,
146 L.Ed.2d 914 (2000). See also Williamson v. Mazda Motor of America,
Inc., 131 S. Ct. 1131, 179 L. Ed. 2d 75 (2011) (same statute as in Geier,
which gives manufacturers the choice of installing either simple lap belts
or lap-and-shoulder belts, does not preempt state tort suits claiming that
manufacturers should have installed lap-and-shoulder belts on rear inner
seats; state tort action does not conflict with the federal regulation because
the choice given to manufacturers does not further a significant regulatory
objective).
422 Sprietsma v. Mercury Marine, a Div. of Brunswick Corp., 537 U.S.
51, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002).
423 Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S.Ct. 999, 169 L.Ed.2d
892 (2008). See also Bass v. Stryker Corp., 669 F.3d 501 (5th Cir. 2012)
(applying Riegel, holding that plaintiff’s negligent-manufacturing claim
and strict liability claim of manufacturing defect, premised on
manufacturer’s alleged violations of FDA regulations, were not preempted;
other claims of failure to warn and breach of warranty were preempted);
Walker v. Medtronic, Inc., 670 F.3d 569 (4th Cir. 2012) (applying Riegel,
FDA regulations preempted negligence, strict liability and warranty
claims based on drug-infusion pump manufacturer’s alleged failure to
adhere to specifications); Cornett v. Johnson & Johnson, 211 N.J. 362, 48
A.3d 1041 (2012) (applying Riegel, failure to warn and breach of express
warranty claims against manufacturer of arterial stint that had been
approved by the FDA as a medical device were partially preempted).
424 Medtronic, Inv. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d
700 (1997).
425 See Worthy v. Collagen Corp., 967 S.W.2d 360 (Tex. 1998).
426 See, e.g., Weston v. Kim’s Dollar Store, 399 S.C. 303, 731 S.E.2d
864 (2012) (device-specific FDA requirements preempted plaintiff’s claims
that would impose common-law requirements “different from, or in
addition to” those requirements, but not claims that merely “parallel” the
federal requirements).
427 See §§ 18.1 to 18.7.
428 See Sheldon R. Shapiro, Annotation, Products Liability: What
Statute of Limitations Governs Actions Based on Strict Liability in Tort,
91 A.L.R.3d 455 (1980); E.E. Woods, Annotation, Statute of Limitations:
When Cause of Action Arises on Action against Manufacturer or Seller of
Products Causing Injury or Death, 4 A.L.R.3d 831 (1966).
429 See Gladhart v. Oregon Vineyard Supply Co., 332 Or. 226, 26 P.3d
817 (2001); Ogle v. Caterpillar Tractor Co., 716 P.2d 334 (Wyo. 1986); see
also Golla v. General Motors Corp., 167 Ill.2d 353, 657 N.E.2d 894, 212
Ill.Dec. 549 (1995) (claim accrued at time of sudden traumatic injury; no
need to apply discovery rule).
430 E.g., Bendix Corp. v. Stagg, 486 A.2d 1150 (Del. 1984) (asbestosis,
a disease of long latency; statute begins to run when disease manifested
itself and became physically ascertainable); Cornett v. Johnson & Johnson,
211 N.J. 362, 48 A.3d 1041 (2012) (latent injury at site of stent
implantation; discovery rule applied under either New Jersey or Kentucky
law). Some courts have rejected the discovery rule in products actions. See
Jane Massey Draper, Annotation, Statute of Limitations: Running of
Statute of Limitations on Products Liability Claim Against Manufacturer
as Affected by Plaintiff’s Lack of Knowledge of Defect Allegedly Causing
Personal Injury or Disease, 91 A.L.R.3d 991 (1980).
431 UCC § 2–725 (2).
432 Ogle v. Caterpillar Tractor Co., 716 P.2d 334 (Wyo. 1986).
433 E.g., Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823
(1965).
434 Rubino v. Utah Canning Co., 123 Cal.App.2d 18, 266 P.2d 163
(1954).
435 As in Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska
1971).
436 See Oats v. Nissan Motor Corp., 126 Idaho 162, 879 P.2d 1095
(1994) (statute of repose applied to warranty claim, which was regarded as
essentially a strict tort liability claim); Kambury v. DaimlerChrysler
Corp., 334 Or. 367, 50 P.3d 1163 (2002) (specific products liability statute
of limitations governs over more general wrongful death statute of
limitations).
437 Neb. Rev. Stat. § 25–224 (ten years from first sale or lease for
consumption); Tenn. Code Ann. § 29–28–103 (six years from injury, ten
years from purchase for consumption, one year after anticipated life of
product, whichever is shortest). Statutes may also protect those
contributing to improvements on real property. N.C. Gen. Stat. § 1–50 (six
years for improvement to real property).
438 E.g., Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 861 P.2d
625 (1993); Groch v. General Motors Corp., 117 Ohio St.3d 192, 883 N.E.2d
377 (2008) (as retroactively applied to certain plaintiffs); see also § 18.4.
439 E.g., Daily v. New Britain Mach. Co., 200 Conn. 562, 512 A.2d 893
(1986); see Jay M. Zitter, Annotation, Validity and Construction of Statute
Terminating Right of Action for Product Caused Injury at Fixed Period
after Manufacture, Sales, or Delivery of Product, 30 A.L.R.5th 1 (1995).
440 See Davis v. Toshiba Machine Co., America, 186 Ill.2d 181, 237 Ill.
Dec. 769, 710 N.Ed.2d 399 (1999).
441 Diamond v. E.R. Squibb and Sons, Inc., 397 So.2d 671 (Fla. 1981).
849
Part VII
DAMAGES, APPORTIONMENT, AND

ALTERNATIVE SYSTEMS
851
Chapter 34
DAMAGES
Analysis
A. COMPENSATORY DAMAGES
§ 34.1 Basic Compensatory Damages for Personal Injury
§ 34.3 Adjustments in Basic Compensatory Damages
B. PUNITIVE DAMAGES
§ 34.5 Common Law Factors in Determining the Amount of Punitive
Damages
§ 34.6 Constitutional Requirements Governing the Award of Punitive
Damages
§ 34.7 “Tort Reform” Statutes Affecting Compensatory and Punitive
Damages
__________
A. COMPENSATORY DAMAGES
§ 34.1 Basic Compensatory Damages for Personal
Injury1
Terms and Elements of Damages
Damages as an element of a claim in negligence but not
intentional torts. In cases of intentional torts to the person and
property—assault, battery, false imprisonment, for example—the
tort itself is regarded as harmful and the plaintiff is always
entitled to recover at least nominal damages. In intentional tort
cases, plaintiff is often entitled to recover a substantial sum
without proof of any specific loss other than the tort itself.2 In
negligence cases, however, damages are an essential element of the
plaintiff’s claim.3 Unless she has suffered legally recognized harm,
she has no claim at all.4
Damages, restitution, and injunction. The term damages refers
to the monetary award for legally recognized harm. The damages
remedy is distinct from restitution and injunction, both of which
are also occasionally available in tort cases. Restitution, when
available, requires the defendant to restore any gains he made in a
transaction;5 injunction, when available, forbids threatened actions
or requires the defendant to alter harmful conduct or repair its
consequences.6
852
Compensatory damages. In personal injury cases the normal

remedy is compensatory damages, awarded in a lump-sum, for all
losses that have proximately resulted from the tort and all losses
that will so result in the future. The plaintiff has the burden of
proving both past and future damages by a preponderance of the
evidence. Punitive damages may be added in limited cases.7
Elements of damages recoverable. Properly proven, the plaintiff
is entitled to recover damages under three basic categories. (1)
Time losses. The plaintiff can recover loss of wages or the value of
any lost time or earning capacity where injuries prevent work. (2)
Expenses incurred by reason of the injury.8 Under one of the
avoidable consequences rules, expenses reasonably incurred to
minimize damages are recoverable.9 Expenses recovered in
personal injury cases are usually medical expenses and kindred
items. (3) Pain and suffering in its various forms, including
emotional distress and consciousness of loss of life’s pleasures.10
The basic damages recovery, comprising all these elements of past
and future damages, is subject to various adjustments11 and
sometimes to limits on the total award.12 In the absence of statute,
the prevailing plaintiff does not recover for her attorney’s fees.
Lost Earnings and Earning Capacity
Lost earnings. If the plaintiff is wholly or partly unable to carry
out gainful activity as a result of tortiously inflicted injury, she is
entitled to recover for actual wages13 and fringe benefits14 that
have been lost or that will be lost in the future. Evidence of
earnings before and after the injury are relevant, though it is also
important to establish that the reduction is a proximate result of
the injury.15 Pre-injury earnings may understate the actual loss. If
future wage increases are to be expected, either because of a
general increase in industrial productivity or because of the
plaintiff’s reasonably expected advancement, those increases have
also been lost and are thus recoverable as damages.16
Lost earning capacity. At least under some circumstances, the
plaintiff is entitled to claim lost earning capacity instead of actual
or prospective lost earnings. Lost earning capacity reflects the
value of work the plaintiff could have done but for the injury. If the
plaintiff was not working when injured and had no plans to do so,
she has no immediate
853
lost income, but her injury nevertheless reduces her earning

capacity. The most sympathetic case for such a claim is the
domestic partner or family member who does not work in the labor
market but works without pay in the family business or in the
household. Such persons are allowed to recover for their lost
capacity to work although they have lost no income and cannot
project any future income losses.17 The same rule applies to
religious persons who have taken a vow of poverty18 and to
children and unemployed persons.19 Lost earning capacity claims
are entirely just in many cases; recovery reflects opportunity cost20
or provides excellent evidence of the value of non-income work. In
extreme cases, as where the plaintiff took early retirement the day
before injury, courts view lost earning capacity claims with healthy
skepticism.21
Calculating lost earnings. In calculating lost earnings, the
parties generally present projections taking into account factors
such as the injured party’s age, education, and job status.
Calculations traditionally take into account life expectancy and
expected earnings. Mortality tables are often admitted for this
purpose.22 However, whether to permit tables that factor in race
and gender presents a difficult policy issue. On the one hand, the
compensatory purpose of the damages award suggests that liability
should be restricted to actual loss and the tables reflect measured
differences. However, because the data aggregate differences based
on membership in protected groups, use of the categories has been
questioned and in some cases rejected.23
Medical and Other Expenses
Medical and non-medical expenses. The injured plaintiff is
entitled to recover reasonable medical and other expenses
proximately resulting from tortious injury and expenses that will
probably result in the future.24 The reasonable charges of health
care professionals for relief of pain or for treatment are
recoverable, including reasonable charges for diagnostic tests,
drugs, medical devices and artificial limbs used.25 Non-medical
expenses are also recoverable if they proximately result from the
injury.26 The traditional measure of recovery is not the cost of
services or appliances needed but their
854
reasonable value,27 and then only if the services are reasonably

required as a result of the injury.28
Medical surveillance or monitoring. When the plaintiff has been
tortiously exposed to a toxic substance that may result in disease
after a long latency period, the best way to minimize the harm is to
maintain regular periodic medical checkups. Recovery of
reasonable monitoring expenses, once a tort has been established,
appears to be in accord with the usual rules of personal injury
damages for diagnostic expenses and also with the rule that
permits recovery of expenses incurred to minimize damages. Some
courts have not only allowed for such periodic future monitoring
expenses,29 but, in line with commentators,30 have sometimes
suggested that the defendant might be required to set up a special
fund to finance such medical checkups as they arise.31 Courts have
shown caution, however, sometimes establishing a number of
conditions to be met before damages can be recovered for
monitoring. One sensible condition is that the plaintiff must be at
significant risk; other conditions may require proof that monitoring
is likely to help discover disease and that early discovery is likely
to help.32 But if the plaintiff has incurred no detectible harm, there
is contrary authority denying the recovery of medical monitoring
expenses altogether.33
Mental and Physical Pain and Suffering
Entitlement to recovery. The plaintiff is entitled to recover for all
forms of suffering proximately caused by tortious injury, including
future suffering. The pain for which recovery is allowed includes
virtually any form of conscious suffering, both emotional34 and
physical.35 Pain from medical treatments that are themselves
required by the injury
855
is also recoverable, so long as it can be deemed a proximate

result of the tort.36 Expert testimony can address pain, but
frequently the physical injury itself and the kind of medical
attention needed either permit or require an inference that the
plaintiff suffered physically or emotionally.37 Awards for pain are
not easy to evaluate because there is no objective criterion for
judgment.
Comparable awards. A number of courts consider awards in
comparable cases to be instructive,38 whereas other courts have
prohibited such comparison.39 If a court approves an award in
because prior decisions have approved similar awards on similar
facts, perhaps this is only a little more than application of
precedent.40 Judge Posner has insisted that federal trial judges
must consider comparable awards, and, seemingly, that federal
juries must be apprised of such awards as well.41 However, an
Indiana court took the opposite view, holding that consideration of
comparable awards would not ordinarily be permissible, reasoning
in part that each plaintiff is entitled to have an individual award
by the jury, not an award set by some other trier for some other
individual.42 Courts that do consider comparable cases seemingly
only look to awards that were both made by the jury and upheld
against challenge43—normally awards that have been reported and
passed on in appellate cases.
Forms of suffering included. Courts have said that the award of
pain and suffering includes the sensation of physical pain itself44
and the inconvenience, pain, and sense of loss that may be built on
physical injury. Loss of a bodily member45 and loss of bodily
functions,46 for example, are likely to entail considerable further
pain and inconvenience, all of which is well within the broad
definition of pain and suffering. Compensable
856
suffering also includes emotional anguish or distress resulting

from injury.47 Any form of unpleasant emotional reactions to the
injury or its consequences, so long as it is proximately related to
the tort, can be a basis for the pain and suffering recovery.
Disfigurement, for example, may cause mental pain or
embarrassment. Other unpleasant emotional states are covered by
the rule. Terror at an approaching injury,48 worry about whether a
dog bite will lead to rabies, or a burn, to cancer49 are examples of
suffering over the future course of an injury already inflicted.
Depression, anxiety, and hysterical or conversion reactions are all
covered so long as they proximately result from the tortious
injury.50
Loss of enjoyment of life. The rules permitting recovery for
suffering are easily broad enough to permit recovery for the
plaintiff’s mental reactions to pain and to her sense of loss. If the
plaintiff’s injury makes it impossible for her to see a sunset, or
hear music, engage in sexual activity, or pursue a chosen vocation,
she may have no physical sensation of pain but she may be aware
of loss and suffer from it. The same can be true with any loss of
function. Almost without exception, loss of enjoyment of life in this
sense is as compensable as any other negative emotional state
resulting from tortious injury.51 Older cases that denied the
recovery altogether seem to be largely obsolete today.
In current cases, loss of enjoyment damages are often
characterized as “hedonic” damages, a term from the Greek
referring to pleasure. Three main issues are being litigated. (1) Are
damages for loss of enjoyment merely one form of pain and
suffering damages? (2) Can loss of enjoyment damages be awarded
when the victim is not and cannot be aware of the loss, as where
the victim is deceased or in a permanent coma? (3) Is expert value-
of-life testimony admissible to show the value of lost enjoyment?52
Two basic rules. Harms to property are complex, partly because,
besides physical injury to property itself, its owner may suffer loss
of use because he is dispossessed, or
857
loss of enjoyment because of the defendant’s activities outside

the property.53 When the defendant’s tort has physically damaged
real or personal property without severing and taking any part of
it,54 courts usually measure damages by one of two rules. (1) The
first rule is the diminished value rule. It gives the plaintiff the
difference between the value of the property immediately before
harm was done and the value immediately afterwards.55 This
measures the loss in capital value of the land or chattel. (2) The
second rule is the cost rule. It gives the plaintiff the cost of repair
or replacement (subject to appropriate adjustments for salvage).56
This measures the potential cash impact upon the plaintiff. When
the property is either converted or totally destroyed by negligence,
a special version of the diminished value rule applies; the plaintiff
recovers the value of the property at the time it was destroyed or
converted,57 or, in the case of conversion, at a reasonable time
thereafter.58
Choosing the right rule for the case. Neither the diminished
value rule nor the cost rule works well in all cases. If the cost of
repair is much higher than the diminished value, sometimes the
diminished value should impose a ceiling on recovery because
repairs would be economically foolish. For example, if I own a car
worth $500 it would be foolish to spend $1,000 on repairs. It would
be far better to salvage the car and buy another for something in
the neighborhood of $500. However, sometimes the damaged
property has such important personal significance or social value
that I might be justified in spending more in repair than the
property is worth on the market. Where the damaged property is a
companion animal, some courts have allowed recovery of the cost of
medical treatment that exceeds the fair market value of the
animal, typically on the ground that the market value of the pet
was quite low, if measurable at all.59 Costly repair might also be
warranted where the defendant has negligently bulldozed shade
trees or a vegetable garden,60 or damaged a church building used
for low-income housing.61 Similarly, if the defendant is
contaminating the plaintiff’s real property,
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damages based on costs of cleanup might be preferable even if

they exceed diminished land value, partly because of deterrent
effects and partly because of public interests.62
Consequential damages. A tort to property may not only harm
the property itself but may cause consequential losses if the
property cannot be used during repair or replacement period.
Consequential damages such as lost profits or other forms of lost
use are recoverable in appropriate cases,63 but the existence and
amount must be proven with reasonable certainty and must also be
a proximate result of the tort.64 Courts have generally denied
emotional harm resulting from damage or destruction of chattels,
even such personal chattels as pets,65 but intentional harm to a pet
might qualify as an intentional infliction of emotional distress, for
which emotional harm damages could be recovered.66 One
consequential item is generally recoverable: the reasonable
expenditures made to minimize damages.67
§ 34.3 Adjustments in Basic Compensatory
Damages
Downward adjustments. The basic estimate of compensatory
damages is subject to a number of downward adjustments.
Comparative negligence rules—including the avoidable
consequences rules for minimizing damages—can substantially
reduce the recovery.68 Absolute caps on the recovery or some
elements of it simply refuse to permit recovery of actual damages
after those damages reach a stated level.69 The remaining issues
about adjusting damages awards are narrower.
Adjustments in Awards for Future Losses
Fixing a loss period. When the plaintiff claims that she will
suffer future losses, she must prove by a preponderance of the
evidence that those losses will in fact be incurred in the future. She
must also prove the duration of those losses. If she will endure pain
for the rest of her life, the trier must have some basis for
estimating her life expectancy. If her injury is permanent and will
never allow her to work, the trier must have some basis for
estimating how long the plaintiff would have worked if she had not
been injured. Such periods may be very long, easily thirty or forty
years in some cases. Mortality and “work-life” tables are often
admitted as a baseline for making this determination, and the
estimates are adjusted based on individual traits of the injured
party. Such tables may cause controversy because of different
statistical expectancies by race and gender, yet their general use
may be consistent with the concept that the defendant should be
obligated to compensate only for the actual loss caused.70
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Reduction to present value. Courts have said that damages

awarded for losses that will occur in the future should be reduced
to present value, so as not to overcompensate.71 No reduction is
required for pain and suffering damages.72 Once the appropriate
interest rate and the time of the future losses are determined, the
reduction is simply mathematical and made using tables, a
formula, or a software program. The most critical element in the
reduction is the appropriate discount or interest rate. The “legal
rate” of interest is not a good guide here. Courts have said the rate
should be what an unsophisticated investor can safely earn in such
investments as a savings account or something equally safe.73
Many issues are also raised concerning prejudgment interest.74
Adjusting for inflation. The long period of future losses also
implicates the problem of inflation. Courts once refused to make
any adjustment for inflation.75 To avoid under compensation, in
the last generation, courts have increasingly been willing to take
inflation into account. Courts either: (1) make a straightforward
estimate of probable future inflation;76 (2) use a very low interest
rate in computing the reduction to present value but make no
separate adjustment for inflation, on the theory that this reflects
the “real” rate of interest;77 or (3) let the present value and
inflation adjustment wash each other out. In the last scenario, the
judge would make no reduction to present value and no addition
for inflation.78
Gains or Savings Resulting from Injury
The collateral source rule. In many cases, the injured plaintiff
receives some compensation for injuries from sources that have
nothing to do with the defendant. The plaintiff’s own insurance, job
benefits, or donations by friends may all operate to reduce the
plaintiff’s loss. The traditional rule is that compensation from
“collateral sources” is none of the defendant’s business and does
not reduce the defendant’s obligation to pay damages, either in
negligence79 or in strict liability cases.80 Thus if the plaintiff has
an injury causing loss of $100,000 and $50,000 of that injury is
covered by the plaintiff’s own insurance, the defendant must still
pay the full $100,000.
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Rationales. Perceived overcompensation is often more

theoretical than real. In many instances, the collateral source rule
only operates to preserve the subrogation rights of an insurer. To
the extent an insurer pays the plaintiff under an insurance policy,
the insurer acquires the plaintiff’s rights to sue. If the collateral
source rule were reversed so that payment of the plaintiff’s loss by
his own insurer eliminated the plaintiff’s right to recover damages
for such items, the insurer, who stands in the plaintiff’s shoes,
would lose the right to recover. It is argued without the collateral
source rule to protect the insurer’s subrogation right, insurance
premiums would rise.81 It is also argued that the plaintiff has,
after all, paid for her insurance coverage. When compensation is in
the form of donations rather than insurance, it is said that donors
do not intend to donate to the defendant but to the plaintiff.
Supporters of the rule have also argued that the defendant should
not get a windfall.
Concerns. Because first party insurance (the plaintiff’s) is
usually cheaper than liability insurance (the defendant’s), the
effect of the collateral source rule is to draw on the most expensive
kind of insurance and to add the costs of subrogation suits in the
bargain. Considering the matter prospectively rather than after
the fact, it may well be that compensation could be more cheaply
secured without the collateral source rule.82
Abolishing the collateral source rule. As part of a tort reform
program, around half of the states have abolished or limited the
collateral source rule for specified claims, frequently medical
malpractice claims and those against public entities. Some statutes
cover all tort actions or even all actions for damages.83 Others
cover claims against favored defendants, such as health care
providers or public entities.84 One approach simply authorizes
admission of evidence of collateral benefits;85 another specifically
requires the trier or the judge to deduct collateral benefits from the
award.86 Ideally, the deduction would be allowed only for collateral
benefits that matched the items of damages the plaintiff recovered,
and it has been so held.87 When the award is reduced because the
plaintiff has received payments from her own insurance company,
the plaintiff may be allowed to add back into the award some of the
sums she expended in premiums for that insurance.88 Some states
abolishing the collateral source rule reduce the plaintiff’s award
only if no insurance company is subrogated to the plaintiff’s rights.
Those states protect the subrogation rights of the plaintiff’s insurer
by retaining the
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collateral source rule as to the insurer.89 A few courts have held

these statutes unconstitutional under provisions of state
constitutions.90 Other courts have upheld the statutes.91
Tax savings.92 Under the United States Revenue Code, the
personal injury plaintiff pays no taxes on compensatory damages
for physical injury.93 When the injured plaintiff is entitled to
recover for loss of wages or earning capacity, the tax gift to the
plaintiff raises two questions. First, should the defendant’s liability
be reduced to reflect the tax savings so that the plaintiff is not
overcompensated? Second, if the answer is no and the defendant is
liable for full wage loss even though some of that loss is recovered
through the tax gift, should the jury be warned not to add anything
for taxes? The traditional answer to both questions highly favored
the plaintiff. Courts permitted the plaintiff to recover the full wage
loss, which replaced taxable wages with untaxable substitute
funds.94 Courts also usually refused to instruct the jury on this
topic,95 which in the view of some courts left a substantial
probability that many juries would “add something” because of
supposed taxation.96 In 1980, the Supreme Court rejected the
traditional rule, holding that in suits under the Federal Employers
Liability Act the basic computation should be reduced to account
for the plaintiff’s tax savings so that the plaintiff would recover full
compensation.97 So far, however, this holding has not influenced
states to change their rules.98
B. PUNITIVE DAMAGES
Availability. No cause of action exists for punitive damages as
such. In the great majority of states,99 punitive (or “exemplary”)
damages may be awarded when the plaintiff has suffered legally
recognized harm and the tortfeasor has committed quite serious
misconduct with a bad intent or bad state of mind such as malice.
Punitive damages represent a monetary award apart from
compensatory damages.
862
Defendant’s conduct and state of mind. Courts have

traditionally agreed that punitive damages can be awarded only
when the tortfeasor causes harm by conduct that is “outrageous”100
or “that constitutes an extreme departure from lawful conduct”101
and that is motivated by or evinces an antisocial mental state as
well.102 The exact mode of expressing this requirement has varied
somewhat. Some courts insist upon malice, ill-will, intent to injure,
evil motive or the like,103 while others have found it sufficient that
the defendant engages in wanton misconduct with a conscious
indifference to risk.104 A great many other terms without much
legal or descriptive content have been used to characterize the
conduct permitting a punitive award. For instance it has been said
that the defendant may be held liable for punitive damages if he is
oppressive, evil, wicked, guilty of wanton or morally culpable
conduct, or shows flagrant indifference to the safety or rights of
others.105 Perhaps the defendant’s abuse of power or of a special
relationship is another marker for punitive awards.106 Some courts
have been willing to award punitive damages when the defendant
intentionally indulges in serious risk-taking, without requiring an
actual intent to inflict harm.107 The plaintiff has the burden of
proving the factual basis for punitive damages by a preponderance
of the evidence. Some courts and legislatures have now altered this
to require clear and convincing evidence108 or even proof beyond a
reasonable doubt.109
Examples. Punitive damages have been approved at least in
principle in a wide variety of cases, both against defendants
engaged in economic activity (manufacturing
863
products that cause harm, for example)110 and against

individual defendants who act in anti-social ways for personal
gratification. Courts have approved punitive damages in principle
in a variety of cases, including those in which the defendant is
guilty of battery,111 failure to care for vulnerable nursing home
patients,112 child molestation,113 environmental harm,114 breach of
fiduciary duty,115 fraud,116 repeated misconduct,117 or driving a
vehicle in an extremely dangerous manner.118 A deliberate policy
of corporate misconduct119 may suffice. The A.H. Robins Company
marketed its Dalkon Shield IUD knowing it was dangerous to
women and presumably hoping that profits would exceed liability.
Punitive damages were of course appropriate.120 A number of
scandalous cases have turned on corporate concealment of serious
danger and efforts to cover-up misconduct.121
Purpose. Courts usually emphasize that punitive damages are
awarded to punish or deter.122 The idea of punishment or
retribution is that it is just for the defendant to suffer for his
misconduct.123 The idea of deterrence is quite different. It is that a
sufficient
864
sum should be exacted from the defendant to discourage the

misconduct or make its repetition unlikely. In some major punitive
damages cases, deterrence is necessary because the defendant’s
activity is profitable or the defendant retains gains even after
compensatory damages are paid.124 Because punishment alone
does not adequately describe the bases for such damages, they are
sometimes called extracompensatory damages.
Issues. Punitive damages raise unique problems. Sometimes
they resemble criminal fines, sometimes civil damages. For
instance, vicarious liability of an employer for punitive damages
may be allowed, but only in the case of management complicity in
or ratification of the actor’s misconduct,125 although a few courts
apply ordinary vicarious liability rules to hold the employer
punitively liable.126 Likewise, some authorities hold that liability
insurers may cover punitive damages127 while others hold they
may not.128 Many articles129 and books130 have addressed punitive
damages. Punitive damages are currently controversial because of
claims that they are unpredictable or excessive.131 Yet empirically,
judges and juries award punitive damages in relatively few
cases,132 although still more frequently and in higher amounts in
the United States than anywhere else in the world.133 Moreover,
the punitive damages limits embraced by the
865
court are largely controversial to the extent that they may

thwart the deterrent function of the tort law,134 and create a
variety of other problems.135
Handling wealth evidence. The traditional assumption was that
although evidence of the defendant’s financial condition was
admissible, nothing compelled the plaintiff to produce such
evidence. California and Wyoming have held that the plaintiff
must produce evidence of the defendant’s wealth if she is to recover
any punitive award.136 However, this view has been surgically
dissected and discarded by Judge Posner.137 If evidence of the
defendant’s wealth is admitted, it might induce some jurors to find
against the defendant on the more basic issue of liability for
compensatory damages. In some states, through judicial decision or
statute, the trial of the basic liability issues is held before any
evidence of the defendant’s wealth is admitted. Only if the
defendant is found to have committed a tort is the jury to consider
punitive damages, sometimes only after compensatory damages
have been determined as well.138 The procedure that requires two
trial segments is called bifurcation.139
§ 34.5 Common Law Factors in Determining the
Amount of Punitive Damages
Traditional factors—common law. The traditional common law
punitive damage awards are open ended, without any particular
limit in amount. No objective measure for such damages exists.140
Courts have tried to provide a framework for assessing punitive
damages by considering several factors. In the absence of
legislation restricting punitive damages, the main factors in
setting the amount of an award of punitive damages have included:
(1) the reprehensibility of the defendant’s misconduct; (2) the
defendant’s wealth; (3) the profitability of the misconduct; (4)
litigation costs; (5) the aggregate of all civil and criminal sanctions
against the defendant; and (6) the ratio between the harm caused,
or potentially caused, by the defendant’s misconduct and the losses
suffered by the plaintiff.141 The suggestion has been made that, in
addition, courts fixing the punitive award could consider the
amount of uncompensated loss inflicted by the defendant, at least
in some cases.142
866
Economic vs. personal gratification activity. One large class of
potential punitive damage cases involves defendants engaged in
economic activity that causes harm. Firms that cause pollution or
produce products that cause harm are examples. A second class
involves defendants, usually individuals rather than corporations,
who obtain personal gratification from tortious anti-social
behavior. Individuals who beat or rape others or who drive while
intoxicated are examples.
Ratio rules. As traditionally applied, the ratio factor holds that
the punitive award should bear some reasonable (but unspecified)
relationship to either: (a) the potential for harm created by the
defendant’s conduct; or (b) the actual damages suffered by the
plaintiff.143 If the rule addresses the actual harm, as it does in
some statements of the rule, it does not seem especially relevant at
all. The defendant who fires a bullet at the plaintiff’s head but only
breaks a cheap pair of glasses has caused little apparent harm, but
it makes no sense at all to suggest that the $50 pair of glasses is
somehow mathematically related to any purpose of punitive
awards, since it does not measure either just punishment or
needed deterrence.144 In those circumstances, the relevant ratio is
the relationship between the amount of potential harm from the
defendant’s conduct and the punitive award.145
Defendant’s financial status. The defendant’s financial status is
a traditional factor in determining the right amount of punitive
damages.146 The theory is that the trier must know something
about the defendant’s financial condition in order to inflict a
liability that will have an appropriate sting.147 Proof may show
either a wealthy defendant or a poor one.148 In the case of personal
ill-will or evil disposition as where the defendant beats or rapes
another person, the defendant’s financial condition is obviously of
some relevance, since a small punitive award against a very
wealthy person may have little effect while a large award against a
person with little wealth might fail to deter if all the defendant’s
assets are exhausted so that he has nothing left to lose. On the
other hand, when a tort is committed by income-producing activity
—by deliberately selling dangerous products, for example—
profitability of the tortious activity is probably more significant for
deterrence than wealth.149
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Aggregate punishment. In some cases punitive damages awards

run the risk that the defendant will be punished several times
over, perhaps because he is criminally liable and perhaps because
he has been or will be subjected to other punitive damages
judgments. Punitive damages awards are not subject to the
prohibition against double jeopardy,150 but the aggregate of
punishments is a clear and even a constitutional concern in
determining the justification for and amount of punitive awards.151
Balancing these concerns against the relevance of the defendant’s
repeated similar misconduct is difficult.152 At trial, a corporate
defendant who may be held punitively liable in the future probably
does not wish to argue to the jury that others will also punish him.
The other extreme would permit only a single punitive award, even
though the defendant’s reckless or malicious behavior has injured
many people.153 Perhaps the best that can be done is to permit the
judges in reviewing a jury verdict of punitive damages to consider
past and potential punitive awards, although as to future awards,
this is necessarily speculative.
§ 34.6 Constitutional Requirements Governing the
Award of Punitive Damages
Constitutional restrictions. The traditional punitive damages
regime was perceived as overly subjective and unpredictable.154
Consequently, the United States Supreme Court has closely
examined and largely circumscribed the award of punitive
damages, relying primarily on the Due Process Clause.155 Though
binding, the Supreme Court approach itself has been subject to
criticism.156
Procedural requirements. The Supreme Court has held that
awards of punitive damages do not in themselves violate the
Eighth Amendment157 or Due Process requirements.158 But due
process exacts substantial requirements. First, some kind of
guidance must be given to the jury about the purpose of punitive
damages as retribution or deterrence, perhaps along with an
instruction that an award is not required.159 Second, courts must
provide post-trial review of punitive awards.160 Guidance and
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review on the basis of factors already mentioned—

reprehensibility of the defendant’s conduct being the chief—was
initially held to be sufficient.161
Prohibition of Excessive Awards
BMW of North America v. Gore.162 Beginning in 1996, the
Supreme Court has taken several steps beyond the question of
judicial process. In BMW, without placing caps on the punitive
award, the Court held that the amount of a punitive award could
be so grossly excessive that it would in itself violate due process. In
so holding, the Court examined some factors that are not in the
traditional list. The facts may have shaped a good deal of the
opinion. Gore had purchased from BMW a “new” car, which as it
turned out had been damaged while still in BMW’s possession,
probably from acid rain. BMW repainted the car and sold it as a
new car without disclosing the repair. The fact that it had been
repainted before being delivered to a customer might have reduced
its resale value by $4,000. The jury awarded $4 million in punitive
damages. The Alabama Court reduced that to $2 million. The
United States Supreme Court struck the award on the ground that
it was grossly excessive and a violation of due process.
Extraterritoriality and limits on state sovereignty. The Supreme
Court first considered the scope of the state’s interests in imposing
punitive damages. The state has no interest in imposing sanctions
for conduct outside the state or changing the defendant’s behavior
in other states. Its interest was in its own citizens and its
justification for a punitive award was circumscribed accordingly. In
other words, a large punitive award could not be justified on the
ground that such a large award was necessary to change the
defendant’s conduct elsewhere. A punitive award that was based in
part on extra-state conduct might therefore be constitutionally
excessive.
Three “guideposts.” The BMW Court also insisted that an award
of punitive damages could not satisfy the notion of fair notice
inherent to due process unless the defendant was on notice of the
conduct that was subject to sanction and of the potential severity of
the penalty. Consequently, each award must satisfy three
“guideposts” against which the defendant, and the trier of fact,
may evaluate the defendant’s conduct. In the specific case of BMW,
those guideposts were: (a) the degree of reprehensibility of the
nondisclosure; (b) the disparity between the harm or potential
harm suffered by Gore and his punitive damages award;163 and (c)
the difference between this remedy and the civil penalties
authorized or imposed in comparable cases. This third guidepost is
one that may raise substantial impediments to deterrence-
measured punitive awards. In BMW, the Court compared the
punitive award with statutory fines for similar conduct, with the
inevitable result that the punitive award was considered grossly
excessive.
De novo review. In 2001, the Court added another layer of
control by holding that the amount of punitive awards should be
reviewed, not merely for clear error or abuse of discretion, but de
novo, that is, without deference to the trial court’s decision.164 The
869
requirement of de novo review also seems to apply to state

courts when examining the federal constitutionality of punitive
damages awards.165
State Farm Mutual Automobile Insurance Company v.
Campbell.166 In 2003, the United States Supreme Court again set
aside a punitive award as constitutionally excessive. The defendant
insurer had failed to settle within policy limits and used a number
of reprehensible tactics in exposing its insured to an excess-of-
policy judgment. The plaintiff was able to show that the insurer’s
practice was part of a larger nefarious scheme carried out in other
states as well. Some of the insurer’s tactics involved direct
mishandling of their own insureds’ claims and others concerned
indirect harm to their insureds through failing to settle within
policy limits. The trial court, reducing a jury’s verdict, entered
judgment for $1 million compensatory damages and $25 million
punitive damages. The Utah Supreme Court reinstated the jury’s
original punitive verdict of $145 million. The United States
Supreme Court held that $145 million was constitutionally
excessive.
Ratios. One heavily emphasized concern in Campbell was the
ratio between harm or potential harm and the punitive damages.
However, the Court did not attempt to estimate risks created by
the defendant’s conduct, that is, potential harmful effects. Much
less did it attempt to estimate the effects on other State Farm
insureds and injured persons. Instead, the Court shifted focus to
emphasize the ratio between the punitive award and the actual
award of compensatory damages to the particular plaintiff. While
the Court said there were no automatic benchmark ratios, it
strongly suggested that 4-to-1 would often be the constitutional
limit and that in practice, few awards exceeding a single-digit ratio
would satisfy due process.167
Court reaction. Courts have interpreted the Campbell
guidelines as sufficiently flexible to permit punitive damages that
exceed the Supreme Court’s strongly suggested limit.168 The
California Supreme Court has interpreted Campbell as
establishing a presumption that must be met “absent special
justification” such as extreme reprehensibility or unusually small,
hard-to-detect or hard-to-measure compensatory damages.169 The
California Court later found a 1-to-1 ratio to be the constitutional
maximum in cases with relatively low reprehensibility and a
substantial award of noneconomic damages.170
870
Concern with focus on actual compensatory award. Although

now seemingly entrenched,171 the emphasis on the actual
compensatory award seems hard to square with the
reprehensibility guidepost and hard to square as well with the
deterrence function. The risk of harm—meaning both the
likelihood of harm and its potential magnitude—bears strongly on
the reprehensibility issue, but the actual award to a particular
plaintiff does not. Additionally, the emphasis on the compensatory
damages award has led some courts to rule that an award of
compensatory damages is a necessary prerequisite to an award of
punitive damages; otherwise an evaluation of the proportionality of
the award would not be possible.172
Importance of reprehensibility. Courts applying the Supreme
Court’s guideposts have focused considerable attention on
reprehensibility, at times calling it the most important indicium of
the reasonableness of a punitive damages award.173 Courts have
also specified some factors in the evaluation of reprehensibility, for
example, whether the harm caused (or threatened) is physical or
economic, whether the tortious conduct evinces indifference to or
reckless disregard for health and safety, whether the target of the
conduct is vulnerable, whether the defendant’s conduct involved
repeated actions, and whether the harm was the result of malice,
trickery or deceit.174 Courts have also focused on deliberate
concealment of wrongdoing and failure to take responsibility for
the conduct.175 The focus on deterring repeated wrongful actions
has been interpreted to permit argument that a case is important
to wider industry practices beyond the case itself.176 At the same
time, compliance with standards may be evidence tending to show
that the conduct was not reprehensible.177
Extraterritoriality. The Campbell Court also emphasized the
plaintiff’s use of evidence about State Farm’s egregious misconduct
in other states. The evidence was offered, not to measure punitive
damages but for other purposes, such as to rebut State Farm’s
claim of inadvertence. The Court recognized that even though the
state could not punish lawful out-of-state conduct, a court could
admit evidence of such conduct when “it demonstrates the
deliberateness and culpability of the defendant’s action in the State
where it is tortious.” Where the out-of-state conduct causes harm to
the plaintiffs at their home in the forum state, however, and the
conduct is wrongful in both states, there seems to be no reason to
exclude punitive damages or impose any special limit on them.178
871
Comparable civil and criminal penalties. The Campbell Court

also reiterated the idea that criminal and civil penalties for
comparable acts serve to indicate how serious the state regards the
defendant’s wrong, with the idea that the punitive awards should
bear some kind of unspecified relationship to those penalties. The
Court compared the $145 million punitive damage award to Utah’s
$10,000 fine for an act of fraud. Because of the immense disparity,
the Court failed to specify exactly how to assess the relationship of
the punitive damage award to the civil penalty. Courts applying
this guidepost discuss it as they must, but some have expressed
frustration with the lack of guidance on how to apply it, and
ultimately appear to ignore it, particularly when it grossly conflicts
with the result suggested by the other two guideposts.179
Defendant’s wrongs that do not cause the plaintiff’s injury. The
Campbell Court also emphasized that the defendant’s wrongdoing
unrelated to the plaintiff’s claim could not legitimately form the
basis for punitive damages. Instead, the plaintiff would be required
to show conduct with “a nexus to the specific harm suffered by the
plaintiff.” In fact, the Court stated what might be an even more
demanding standard: “A defendant’s dissimilar acts, independent
from the acts upon which liability was premised, may not serve as
the basis for punitive damages.” The Court characterized Campbell
as a third-party suit, arising because of a claim by the injured
person who was not a State Farm insured. Therefore, the Court
considered evidence of misconduct in non-third party cases to be
dissimilar.180
Applying Campbell. Campbell’s holding must not be read too
broadly. Punitive damages may not be based on dissimilar acts
that are independent of the acts upon which liability is based,181
but punitive damages can still be based on post-tort misconduct,
such as a manufacturer’s cover-up of the facts, even though the
cover-up itself did not cause the plaintiff’s injury.182 Some “nexus”
is required between the injury or injury-causing conduct and the
defendant’s other wrongful conduct, but a general requirement of a
“nexus” seems to leave a degree of flexibility in striving for fair
deterrence-measured punitive awards.183 One solution is to hold
that (a) conduct not causing compensatory damages to the plaintiff
may not be used as a basis for awarding punitive damages, but (b)
such conduct may bear on reprehensibility and hence on the
amount of punitive damages when punitive damages are otherwise
authorized.184
872
Philip Morris USA v. Williams.185 Something similar to this

last-stated view appears to have been accepted by the Supreme
Court in 2007. The defendant was found liable for its sale of
cancer-causing cigarettes which were represented as safe. Many
people had undoubtedly been harmed and killed over the years the
defendant maintained this conduct. The plaintiffs apparently
suggested to the jury that jurors could “punish” the defendant for
harms inflicted on victims who were not parties. The defendant
sought an instruction that would allow the jury to consider harms
to non-parties in determining the ratio of punitive to compensatory
damages, but that would tell the jury it could not punish Philip
Morris for harms done to others. The Court held that the
Constitution does not permit direct punishment of a defendant for
harms it has inflicted on nonparties. One reason was that the
defendant could not defend itself appropriately. Another was that
the court regarded such an approach as being without standards
because the trial court is not likely to know how many such victims
there are or the circumstances of their injuries. However, the Court
went on to say that the plaintiff may offer evidence of harm to
others on the issue of reprehensibility of the defendant’s conduct,
which in turn indirectly bears on the amount of the punitive
award. The difference between the constitutionally forbidden direct
punishment for nonparty injury and the permitted consideration of
those same nonparty injuries in determining the amount of
punitive liability may be hard to discern in trials where a lawyer’s
incorrect phrasing in the heat of argument may lead to
constitutional objections.
Lessons from Exxon Shipping Company v. Baker.186 In 2008,
although deciding the limits of federal common law, not
constitutional limits, on punitive damages awards, the Supreme
Court provided insight into the constitutional requirements
through Justice Souter’s lengthy discussion of the history and
perceived problems remaining with punitive damages
jurisprudence. The Court held that the “fair upper limit” ratio of
punitive damages to compensatory damages in admiralty cases is
1-to-1, and on that basis reduced the award of punitive damages in
one of the Exxon Valdez cases to just over $500 million. The
Court’s holding reinforced concepts from its previous constitutional
decisions when it ruled that the 1-to-1 ratio was justified because
the compensatory damages in the case were “substantial,”187 also
supporting the argument that courts may more freely exceed lower
ratios when the compensatory damages themselves are low.
Deterrence and profitability of wrongdoing. Emphasis on ratios,
comparable penalties, and perhaps other guideposts tends to
ignore factors that must be considered to provide adequate
deterrence, especially against repeat economic offenders. These
factors include, notably, profitability of the wrongdoing188 and the
likelihood that the defendant will often escape liability altogether
because victims do not identify the defendant as the cause of their
injuries or the cost of litigation.189 Courts have said, however, that
while deterrence objectives may be compromised in some cases by
the Supreme Court’s decisions, the goal of deterring wrongful
conduct is still a legitimate one. Thus although the Supreme Court
did not list the defendant’s wealth as one of the
873
guideposts, in appropriate cases profitability and wealth, along

with the cost and difficulty of enforcement, can still be factors in
measuring the punitive award.190
§ 34.7 “Tort Reform” Statutes Affecting
Compensatory and Punitive Damages
Tort reform. The drive to restrict tort liability has generally
been referred to as “tort reform.” Whether reform is needed or
desirable is hotly debated.191 However, tort reform has succeeded
in many states by imposing preconditions to suit, shortening
statutes of limitations, modifying the collateral source rule,
abolishing joint and several liability, raising the plaintiff’s burden
of proof, and, most directly, limiting compensatory and punitive
damages. The last is the topic of this section.
Capping statutes—cases covered. The most severe tort reform
statutes put a limit or cap on recovery of compensatory damages.
Well over half of the states have enacted some kind of cap on
damages recoverable. In some instances the cap applies only to
particular kinds of tort claims, such as claims for professional
malpractice,192 suits against public entities,193 or suits against
alcohol providers.194 A California statute eliminates pain damages
suffered by uninsured motorists.195 For claims arising out of the
terrorist attack of September 11, 2001, the federal September 11th
Victims’ Compensation statute eliminates some suits and caps
damages in others.196 Other statutes cap all tort claims.197
What damages are capped; varied amounts. The statutes are
diverse in other ways, too, sometimes capping damages but
providing the plaintiff with substitute claims against a fund to care
for extreme cases.198 Statutes may impose an absolute cap on all
damages199 or may impose a cap only on “noneconomic” damages
like those awarded for pain and suffering.200 The statutory cap on
recovery varies from state to state. Utah says
874
alcohol providers cannot be liable for more than $500,000.201

California’s cap for pain and suffering is $250,000.202 Kansas
permits only $250,000 in recovery for noneconomic harms in death
actions, an extreme limit but one that is mitigated in some cases
because sums received in settlement do not count against the cap.
This means that a plaintiff who settles with one tortfeasor for
$100,000 could still recover $100,000 from another tortfeasor.203
Ohio’s statute, revised after being declared unconstitutional, limits
noneconomic damages in most tort cases to the greater of (1)
$250,000 or (2) three times the economic damages up to a
maximum of $350,000, or $500,000 per single occurrence, with a
further caveat: these limits do not apply if the plaintiff suffered
“permanent and substantial physical deformity, loss of use of a
limb, or loss of a bodily organ system,” or “permanent physical
functional injury that permanently prevents the injured person
from being able to independently care for self and perform life-
sustaining activities.”204 When multiple tortfeasors and claims are
involved, applying the caps raises difficult logistical issues.205
Objections to caps. So far as a cap is effective, the punitive
award will be calibrated to neither the defendant’s aggravated
misconduct nor the need for deterrence. And caps do not
necessarily accomplish much.206 They can prevent excessive
punitive awards that are also higher than the cap, but they do not
address the problem of excess awards at lower levels.207 In close
cases, judges and juries may actually tend to balloon the award to
the cap level.208 Finally, caps on punitive damages, like an outright
prohibition of punitive damages, can protect against excessive
awards, but the cap necessarily protects those tortfeasors who are
perceived by the trier to be guilty of the most aggravated
misconduct. In practice, the most central probably is that reduction
of damages actually suffered eliminates appropriate compensation
and reduces appropriate levels of deterrence. Defendants have
supported caps on the theory that by reducing liabilities they can
reduce insurance premiums. But if damages were correctly figured
before caps were introduced, that argument translates to an
argument that seriously injured individuals must suffer without
compensation for the benefit of others.209 It makes A pay so B can
save money.
Constitutionality. Plaintiffs have presented several arguments
that damages caps are unconstitutional. They have asserted the
right to a jury trial, equal protection, due
875
process, and separation of powers under state constitutional

provisions and others. A number of courts have found particular
statutes unconstitutional on one ground or another.210 Other
courts have upheld caps. Some of these broadly reject arguments
based on due process, equal protection, the right to a jury trial or
taking of property,211 but others have upheld the caps only because
the legislature provided the victim with some substitute remedy
such as a claim against a Patient Compensation Fund when
damages were higher than the cap.212 In one Oregon case, the
court upheld damages caps against constitutional attack in a
wrongful death case on the ground that the “remedy” guarantee of
the state Constitution applied by its terms to protect remedies in
causes of action that were recognized at the time of the drafting of
the Constitution in 1857, and that wrongful death claims did not
exist at all at common law and were only later authorized by
statute.213
Limiting pain and suffering damages without caps. The tort
reform statutes have so far attempted to limit compensatory
damages only through raw caps, but students of the problem have
been developing others kinds of limits for pain and suffering
damages, not to create a windfall for tortfeasors, but because such
damages are inherently difficult to estimate. One kind of limitation
would reverse the cap effect and exclude small rather than large
claims by imposing a minimum threshold. Much as a collision
insurance policy might not cover the first $100 dollars of the loss,
this kind of rule would disallow pain and suffering damages that
were not significant in amount.214 The second kind of limitation
would ask jurors to compare the case they heard with a set of ten
or so other
876
standardized scenarios ranging from very little injury and pain

to the most serious.215 The law could fix damages for each scenario
and the jury’s decision that their case was worse than scenario 5
and not as bad as scenario 6 would narrow the available pain and
suffering damages. A more complicated version would not assign
pre-set values to the scenarios, but rather advise the jury of the
national or state average awards for cases similar to each scenario.
Several other variations on this approach can be imagined.216 A
narrower and more flexible version of standardized damages for
pain has appeared in some of the suits by former hostages or their
estates against countries that sponsored abduction and torture. As
one court said: “Subject to adjustment for cases deviating from the
more common experience of victims, this Court typically has
awarded former hostages or their estates roughly $10,000 for each
day of captivity.” The same court added $1 million “for the portion
of that time that [the hostage] faced certain death alone.”217
Comparative scales. One study came up with a surprising
finding.218 In many mock trials, jurors of diverse wealth,
education, gender and ethnicity came to almost complete
agreement about punitive damages issues when they were allowed
to rate the conduct on a given scale, say one to six. Their
agreement disappeared when they tried to convert to dollars. The
indication is that a set of scenarios or even a scale of one to ten
would increase predictability of awards for both punitive and pain
and suffering damages. These studies offer considerable
opportunity for eliminating the occasional run-away verdict
without imposing caps that make the most injured absorb the
costs.
Reallocation of punitive damages. Several states provide for
allocation of a portion of the punitive award to a state agency.219
From the point of view of the plaintiff, this reallocation operates
like a cap. From the defendant’s point of view, this reallocation
does nothing to minimize punitive damages awarded. The
defendant’s protection from statutes like this comes much earlier.
The limitation on punitive damages may cut the funds from which
attorneys’ fees and litigation costs can be paid, with the result that
some suits will not be pursued at all. When suits are not pursued
because it is financially infeasible under these statutes, the
defendants who most deserve punishment or deterrence may be
the ones who escape liability altogether. The most recent cases
have upheld the redirection or “forfeiture” of a portion of the
punitive award against state constitutional challenges based on
guaranteed remedies, substantive due process, jury trial rights,
and taking of property without just compensation.220
________________________________
1 Damages in wrongful death and survival actions are considered in
Chapter 28. Damages for wrongful pregnancy and wrongful birth are
considered in Chapter 27.
2 See § 4.20.
3 See § 9.5.
4 Right v. Breen, 277 Conn. 364, 890 A.2d 1287 (2006); Donovan v.
Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009).
5 See generally 1 Dan B. Dobbs, Law of Remedies §§ 4.1–4.9 (2d ed.
1993). A prominent example is recovery “in assumpsit” for conversion. See
id. § 5.18.
6 See, e.g., id. §§ 5.7 (relief from nuisances) & 5.10 (injunction to
remove encroaching structures); 2 Dobbs §§ 6.4(5) (injunctions against
trademark infringement), 7.3(5) (dignitary rights generally), & 7.4(4)
(constitutional rights).
7 See § 34.4.
8 Millennium Equity Holdings, LLC v. Mahlowitz, 925 N.E.2d 513
(Mass 2010) (costs incurred in successfully defending abusive lawsuit
recoverable as an item of damages in subsequent abuse of process suit).
10 Some courts define pain and suffering more narrowly to exclude
mental anguish and loss of enjoyment of life, but then add the excluded
categories back as items of damages separate from pain and suffering. See,
e.g., Fantozzi v. Sandusky Cement Prods. Corp., 64 Ohio St.3d 601, 597
N.E.2d 474 (1992). Either way, the full range of losses is usually allowable.
Similarly, some courts have treated disfigurement and physical
impairment as separate items of damages rather than as evidence of other
elements.
11 See § 34.5–34.7.
12 See 1 Dan B. Dobbs, Law of Remedies § 3.10 (2d ed. 1993). Civil
rights statutes do often provide for attorneys’ fees. See e.g., 42 U.S.C.A. §
1988 (general federal civil rights fee statute).
13 E.g., Fuqua v. Aetna Cas. & Sur. Co., 542 So. 2d 1129 (La. Ct.
App. 1989).
14 E.g., Rivera v. Philadelphia Theological Seminary of St. Charles
Borromeo, Inc., 510 Pa. 1, 507 A.2d 1 (1986).
15 See Robinson v. Greeley & Hansen, 114 Ill.App.3d 720, 725, 70
Ill.Dec. 376, 380, 449 N.E.2d 250, 254 (1983).
16 See Felder v. Physiotherapy Assocs., 215 Ariz. 154, 158 P.3d 877
(Ct. App. 2007); Henry v. National Union Fire Ins. Co., 542 So.2d 102, 107
(La. Ct. App. 1989).
17 E.g., American Nat’l Watermattress Corp. v. Manville, 642 P.2d
1330 (Alaska 1982) (76-year-old woman pinned under waterbed that rolled
off its pedestal, lost 48 hours a week working in family business for which
she was paid only nominal salary; plaintiff was entitled to recover full lost
earning capacity).
18 McLaughlin v. Chicago, M., St. P. & P. Ry. Co., 31 Wis.2d 378, 143
N.W.2d 32 (1966).
19 Bishop v. Poore, 475 So.2d 486 (Ala. 1985); cf. Rubio v. Davis, 231
Ga.App. 425, 500 S.E.2d 367 (1998) (three-year-old child’s arm amputated,
evidence of earning capacity before and after injury not required; damages
are in the jury’s sound discretion).
21 Cf. Saul Levmore, Self-Assessed Valuation Systems for Tort and
Other Law, 68 Va. L. Rev. 771, 803–05 (1982) (expressing doubts about
earning capacity recovery).
23 See McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y. 2008)
(holding race-based statistics inadmissible in estimating life expectancy
for purposes of calculating damages, because of unreliability, due process,
and equal protection); Martha Chamallas, Civil Rights in Ordinary Tort
Cases: Race, Gender, and the Calculation of Economic Loss, 38 Loy. L.A. L.
Rev. 1435 (2005); Michael I. Meyerson & William Meyerson, Significant
Statistics: The Unwitting Policy Making of Mathematically Ignorant
Judges, 37 Pepp. L. Rev. 771 (2010); Jennifer Wriggins, Damages in Tort
Litigation: Thoughts on Race and Remedies, 1865–2007, 27 Rev. Litig. 37,
53–57 (2007).
24 Donovan v. Philip Morris USA, 455 Mass. 215, 914 N.E.2d 891
(2009) (jury may award future damages that are “reasonably probable” to
occur, as opposed to those that may only “possibly” occur).
25 E.g., Atlanta Transit Sys., Inc. v. Nowell, 138 Ga.App. 443, 226
S.E.2d 286 (1976) (diagnosis); Haudrich v. Howmedica, Inc., 169 Ill.2d 525,
662 N.E.2d 1248, 215 Ill.Dec. 108 (1996) (knee replacement); see 2 Dan B.
26 Thierrien v. Target Corp., 617 F.3d 1242 (10th Cir. 2010).
27 See, e.g., Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150 (Iowa
2004); Steinauer v. Sarpy County, 217 Neb. 830, 843, 353 N.W.2d 715, 724
(1984).
28 Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150 (Iowa 2004); see
also Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994).
29 Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315 (5th Cir. 1986);
Donovan v. Philip Morris USA, 455 Mass. 215, 914 N.E.2d 891 (2009);
Meyer v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007); Ayers v. Jackson Twp.,
106 N.J. 557, 525 A.2d 287 (1987); Bower v. Westinghouse Elec. Corp., 206
W.Va. 133, 522 S.E.2d 424 (1999).
30 Note, Increased Risk of Disease from Hazardous Waste: A
Proposal for Judicial Relief, 60 Wash. L. Rev. 635, 647–52 (1985)
(suggesting that the court should use its equitable powers to require the
defendant to provide an insurance policy covering the group at risk).
31 Friends For All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d
816, 46 A.L.R.4th 1113 (D.C. Cir. 1984) (preliminary injunction ordered
the defendant to fund medical monitoring program); see Ayers v. Jackson
Twp., 106 N.J. 557, 525 A.2d 287 (1987) (medical surveillance costs for
those exposed to toxic chemicals; courts should encourage use of court-
ordered medical surveillance funds, but lump-sum award here because
case was tried that way).
32 E.g., Perrine v. E.I. du Pont de Nemours & Co., 694 S.E.2d 815,
873 (W.Va. 2010).
33 Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 117
S.Ct. 2113, 138 L.Ed.2d 560 (1997); Wood v. Wyeth-Ayerst Labs., 82
S.W.3d 849 (Ky. 2002); Henry v. Dow Chem. Co., 473 Mich. 63, 701
N.W.2d 684 (2005) (in the absence of present physical injury, negligence
rules forbid a tort claim and courts should leave issue to the legislature,
especially since impact of the defendant’s liability on the business climate
of the state is uncertain); Paz v. Brush Engineered Materials, Inc., 949
So.2d 1 (Miss. 2007); Sinclair v. Merck & Co., 195 N.J. 51, 948 A.2d 587
(2008); La. Civ. Code Ann. art. 2315(B).
34 E.g., Wood v. Mobil Chem. Co., 50 Ill.App.3d 465, 8 Ill.Dec. 701,
365 N.E.2d 1087 (1977) (anxiety and depression following brain injury);
Alphonso v. Charity Hosp. of La. at New Orleans, 413 So.2d 982 (La. Ct.
App. 1982) (post-traumatic stress disorder following rape, along with other
serious problems).
35 E.g. Sears, Roebuck & Co. v. Hartley, 160 F.2d 1019 (9th Cir.
1947) (past pain plus pain of recalling it); Black v. Comer, 38 So.3d 16
(Ala. 2009) (pain from removal of tissue mass in abdomen that turned out
to be plaintiff’s kidney as well as internal bleeding). See Marcus L. Plant,
Damages for Pain and Suffering, 19 Ohio St. L.J. 200 (1958) (discussing
purely subjective pain).
36 See Abrams v. City of Mattoon, 148 Ill.App.3d 657, 101 Ill.Dec.
780, 499 N.E.2d 147 (1986) (side effects of drugs prescribed as result of
injury). Self-inflicted pain may also qualify. Alphonso v. Charity Hosp. of
La. at New Orleans, 413 So.2d 982 (La. Ct. App. 1982) (mental
patient/rape victim mutilated herself to prevent further attacks).
37 Choi v. Anvil, 32 P.3d 1 (Alaska 2001) (so long as jurors’ common
knowledge or experience would permit an inference that the impact to the
plaintiff caused pain, no expert testimony is required, rejecting Nebraska’s
rule of law that requires expert testimony for purely subjective injury).
38 E.g., Meyers v. Wal-Mart Stores, East, Inc., 257 F.3d 625 (6th Cir.
2001) (trial judge properly relied upon comparable case to reduce pain
award only slightly); R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331 (Fla.
Dist. Ct. App.), review denied, 107 So.3d 406 (Fla. 2012) (vacating
damages award after reviewing comparable awards for non-economic
damages); Bissell v. Town of Amherst, 56 A.D.3d 1144, 867 N.Y.S.2d 582
(2008) (examining prior cases to determine reasonable compensation).
39 Velarde v. Illinois Cent. R.R. Co., 354 Ill.App.3d 523, 820 N.E.2d
37, 289 Ill.Dec. 529 (2004); Moteberg v. Johnson, 297 Minn. 28, 210
N.W.2d 27 (1973) (“In considering whether a verdict is excessive, a
comparison with previous verdicts is not justified because of the variations
in facts and changes in the economy.”).
40 Prior awards might be used in several distinct ways on the prior
court decision as precedent; on prior awards from earlier appellate
decisions as data, such non-precedential awards might be accepted as
indicating an average range of “good” awards; and at the triers’ awards
themselves as guidelines, emphasizing averages or ranges.
41 Arpin v. United States, 521 F.3d 769 (7th Cir. 2008) (trial judge
must consider comparable awards in order to adequately explain his
decision). For application of this approach, see Maldonado v. Sinai Med.
Group, Inc., 706 F.Supp.2d 882 (N.D. Ill. 2010).
42 Ritter v. Stanton, 745 N.E.2d 828 (Ind. Ct. App. 2001).
43 Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008) (FTCA
case); Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291 (Mo. Ct.
App. 1978) (“a comparison of the compensation awarded and permitted in
cases of comparable injuries” (italics added)).
44 Wald v. Grainger, 64 So.3d 1201 (Fla. 2011) (sensitivity and
discomfort).
45 Mileski v. Long Island R.R., 499 F.2d 1169 (2d Cir. 1974) (eye).
46 See, e.g., Foradori v. Harris, 523 F.3d 477 (5th Cir. 2008)
(upholding jury award of $10 million for pain and suffering in spinal-cord
injury case); Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83 (Mo. 1985)
(plaintiff’s loss of excretory and sexual functions).
47 E.g., Boryla v. Pash, 960 P.2d 123 (Colo. 1998).
48 E.g., Blum v. Airport Terminal Servs., Inc., 762 S.W.2d 67 (Mo. Ct.
App. 1988) (decedent had been aware that plane would crash); Yowell v.
Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986) (preimpact distress
damages allowed when decedents’ plane broke up and they fell 10,000 feet
to an immediate death).
49 E.g., Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152
N.E.2d 249, 71 A.L.R.2d 331 (1958) (worry about cancer).
50 See Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456 (Colo. 2011)
(award of $5.5 million in non-economic damages affirmed where evidence
showed that physical injuries to the plaintiff caused “chronic pain and that
such pain induces personality changes such as depression, difficulty
sleeping, and difficulty concentrating,” all of which greatly affected
plaintiff’s enjoyment of life); see also 2 Dan B. Dobbs, Law of Remedies §
8.1(4) (2d ed. 1993).
51 E.g., Thompson v. National R.R. Passenger Corp., 621 F.2d 814
(6th Cir. 1980); Averyt v. Wal-Mart Stores, Inc., 265 P.3d 456 (Colo. 2011)
(chronic pain and depression caused loss of enjoyment of life; testimony
specifically addressed plaintiff’s sadness “that she could no longer drive
her truck, which she enjoyed doing,” and that she could no longer “do the
job that she loved and was good at,” all resulting in a loss of independence
she had in her job as a truck driver); MacDougald v. Garber, 73 N.Y.2d
246, 257, 538 N.Y.S.2d 937, 536 N.E.2d 372, 376 (1989) (as a form of
conscious pain and suffering). Some cases emphasize specific lost abilities.
See McAlister v. Carl, 233 Md. 446, 197 A.2d 140, 15 A.L.R.3d 496 (1964)
(vocation); Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83 (Mo. 1985)
(emphasizing plaintiff’s loss of ability to play tennis, ski, jog, and carry on
other athletic activities). Many others treat loss of functioning in gross as
a loss of ability to enjoy life without requiring or emphasizing proof of
specific loss, such as a lost ability to play tennis. E.g., Gregory v. Carey,
246 Kan. 504, 791 P.2d 1329 (1990); Banks v. Sunrise Hosp., 102 P.3d 52
(Nev. 2004).
52 These issues are all discussed at greater length in 3 Dobbs,
Hayden & Bublick, The Law of Torts § 479 (2d ed. 2011 & Supp.).
53 See 1 Dan B. Dobbs, Law of Remedies §§ 5.6, 5.8, 5.9 (damages
and restitution for loss of exclusive possession of real property) (2d ed.
1993).
54 As to severance of minerals, timber or the like, see id. § 5.3.
55 E.g., Ross v. A Betterway Rent-A-Car, Inc., 213 Ga.App. 288, 444
S.E.2d 604 (1994); Ken Hood Constr. Co. v. Pacific Coast Constr., Inc., 201
Or.App. 568, 120 P.3d 6 (2005), modified on other points, 203 Or.App. 768,
126 P.3d 1254 (2006).
56 E.g., Halpin v. Schultz, 917 N.E.2d 436 (Ill. 2009); Falcone v.
Perry, 68 Wash.2d 909, 416 P.2d 690 (1966).
57 Travis Lumber Co. v. Deichman, 319 S.W.3d 239 (Ark. 2009);
Chlopek v. Schmall, 224 Neb. 78, 396 N.W.2d 103 (1986); Daughten v. Fox,
372 Pa.Super. 405, 539 A.2d 858 (1988).
59 See Martinez v. Robledo, 210 Cal.App.4th 384, 147 Cal.Rptr.3d
921 (2012), review denied (Jan. 23, 2013) (reversing in two consolidated
cases; “a pet owner is not limited to the market value of the pet and may
recover the reasonable and necessary costs incurred for the treatment and
care of the pet attributable to the injury”); Kimes v. Grosser, 195
Cal.App.4th 1556, 126 Cal.Rptr.3d 581 (2011) (allowing recovery of costs of
medical treatment of pet cat shot by defendant, even where those costs
exceeded the negligible market value of the cat); Burgess v. Shampooch
Pet Indus., Inc., 35 Kan.App.2d 458, 131 P.3d 1248 (2006) (affirming
damage award of $1,308.89, representing the cost of the dog’s successful
hip surgery, on the ground that such a measure of damages was “practical”
and accorded with “common sense” where the pet—a 13-year-old terrier—
had “no discernable market value”); Zager v. Dimilia, 138 Misc.2d 448, 524
N.Y.S.2d 968 (J. Ct. 1988) (citing cases, holding that “reasonable and
necessary costs of reasonable veterinary treatment” was the “proper
measure of damages” in a pet-injury case).
60 See, e.g., Andersen v. Edwards, 625 P.2d 282, 288 (Alaska 1981);
Weitz v. Green, 230 P.3d 743 (Idaho 2010); Restatement Second of Torts §
929 cmt.b (1979); 1 Dan B. Dobbs, Law of Remedies § 5.2(2) (2d ed. 1993).
61 Roman Catholic Church of the Archdiocese of New Orleans v.
Louisiana Gas Serv. Co., 618 So.2d 874 (La. 1993) (costly repair costs for
church-managed property used for low-income housing represented
appropriate measure of damages).
63 E.g., Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill.2d 218,
856 N.E.2d 389, 305 Ill.Dec. 584 (2006) (lawyer malpractice caused client
to lose claim for lost profits against a bank); Walker v. Brown, 501 So.2d
358 (Miss. 1987); Gateway Foam Insulators, Inc. v. Jokerst Paving &
Contracting, Inc., 279 S.W.3d 179 (Mo. 2009); Chemical Express Carriers,
Inc. v. French, 759 S.W.2d 683 (Tex. App. 1988) (insurance agent’s income
dropped when he could not use airplane to transport clients).
65 E.g., Nichols v. Sukaro Kennels, 555 N.W.2d 689, 61 A.L.R.5th
883 (Iowa 1996); Scheele v. Dustin, 998 A.2d 697 (Vt. 2010).
66 Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456
(Alaska 1985).
68 See Chapter 16.
69 § 34.7.
70 See generally 2 Dan B. Dobbs, Law of Remedies § 8.5(2) (2d ed.
1993).
71 E.g., Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 108 S.Ct.
1837, 100 L.Ed.2d 349 (1988); Green v. General Motors Corp., 310 N.J.
Super. 507, 709 A.2d 205 (1998).
72 E.g., Cox v. Crown Coco, Inc., 544 N.W.2d 490 (Minn. Ct. App.
1996); Friedman v. C & S Car Servs., 108 N.J. 72, 527 A.2d 871 (1987).
73 See Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 490, 36 S.Ct.
630, 632, 60 L.Ed.2d 1117, 1122 (1916).
2011 & Supp.).
75 Zaninovich v. American Airlines, Inc., 26 A.D.2d 155, 271
N.Y.S.2d 866 (1966).
76 See Schleier v. Kaiser Found. Health Plan, 876 F.2d 174 (D.C. Cir.
1989).
77 See Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 37
(2d Cir. 1980); Feldman v. Allegheny Airlines, Inc., 524 F.2d 384 (2d Cir.
1975). The Supreme Court thought that some such approach would be
permissible. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103
S.Ct. 2541, 76 L.Ed.2d 768 (1983).
78 See Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967).
79 Helfend v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 1, 84
Cal.Rptr. 173, 465 P.2d 61, 77 A.L.R.3d 398 (1970); Willis v. Foster, 229
Ill.2d 393, 323 Ill.Dec. 26, 892 N.E.2d 1018 (2008); Scott v. Garfield, 454
Mass. 790, 912 N.E.2d 1000 (2009); Mahoney v. Nebraska Methodist
Hosp., 251 Neb. 841, 560 N.W.2d 451 (1997) (pension); Kenney v. Liston,
760 S.E.2d 434 (W. Va. 2014); Leitinger v. DBart, Inc., 302 Wis.2d 110,
736 N.W.2d 1 (2007); Restatement Second of Torts §§ 920A & 920 (1979); 2
Dan B. Dobbs, Law of Remedies § 8.6(3) (2d ed. 1993).
80 Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 4 A.L.R.3d
517 (9th Cir. 1962); Tebo v. Havlik, 418 Mich. 350, 343 N.W.2d 181 (1984).
81 Cates v. Wilson, 321 N.C. 1, 361 S.E.2d 734 (1987).
82 See Alfred E. Conard, The Economic Treatment of Automobile
Injuries, 63 Mich. L. Rev. 279, 311 (1964); 2 Dan B. Dobbs, Law of
Remedies § 8.6(3) (2d ed. 1993).
83 E.g., Mont. Code Ann. § 27–1–308 (actions for injury or death
where total award exceeds $50,000); N.Y. C.P.L.R. § 4545 (“In any action
brought to recover damages for personal injury, injury to property or
wrongful death”).
84 E.g., 231 Mass. Gen. Laws Ann. § 60G. Iowa’s statute covers only
payments received for medical care, so that the plaintiff’s disability
payments do not reduce recovery. Collins v. King, 545 N.W.2d 310 (Iowa
1996).
85 E.g., Ala. Code § 12–21–45.
86 E.g., N.Y. C.P.L.R. § 4545; Colo. Rev. Stat. § 13–21–116.6. See also
Smith v. Jeppsen, 277 P.3d 224 (Colo. 2012); Wal-Mart Stores, Inc. v.
Crossgrove, 276 P.3d 562 (Colo. 2012); Idaho Code Ann. § 6–1606; Carrillo
v. Boise Tire Co., Inc., 152 Idaho 741, 274 P.3d 1256 (2012).
87Pikulski v. Waterbury Hosp. Health Ctr., 269 Conn. 1, 848 A.2d
373, 376 (2004) (“only payments specifically corresponding with items of
damages included in the jury’s verdict [are] to be deducted as collateral
sources from the economic damages award”); McMullen v. Ohio State
Univ. Hosp., 88 Ohio St.3d 332, 725 N.E.2d 1117 (2000).
88Mont. Code Ann. § 27–1–308 (premiums paid for five years before
injury, those paid from injury to judgment, and the value of those to be
paid in the next three years).
89 Ala. Code § 12–21–45; Mich. Comp. Laws Ann. § 600.6303 (2) &
(4).
90Thompson v. KFB Ins. Co., 252 Kan. 1010, 850 P.2d 773 (1993)
(discrimination against victims with greater harm); Farley v. Engelken,
241 Kan. 663, 740 P.2d 1058, 74 A.L.R.4th 1 (1987) (discrimination
against medical malpractice victims); O’Bryan v. Hedgespeth, 892 S.W.2d
571 (Ky. 1995) (admission of evidence is judicial function, statute violated
separation of powers).
91 Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); see
James J. Watson, Annotation, Validity and Construction of State Statute
Abrogating Collateral Source Rule as to Medical Malpractice Actions, 74
A.L.R.4th 32 (1990).
1993).
9326 U.S.C.A. § 104 (a). The Code by its terms does not relieve the
taxpayer of taxes for non-physical injuries like emotional distress or
defamation. See Murphy v. Internal Revenue Serv., 493 F.3d 170 (D.C.
Cir. 2007).
94
E.g., Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994); Johnson
v. Manhattan & Bronx Surface Transit Operating Auth., 71 N.Y.2d 198,
524 N.Y.S.2d 415, 519 N.E.2d 326 (1988).
95 E.g., Hall v. Chicago & Nw. Ry. Co., 5 Ill.2d 135, 125 N.E.2d 77
(1955).
96
See, e.g., Norfolk & W. Ry. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755,
62 L.Ed.2d 689 (1980).
97 Norfolk & W. Ry. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62
L.Ed.2d 689 (1980).
98 See, e.g., Klawonn v. Mitchell, 105 Ill.2d 450, 86 Ill.Dec. 478, 475
N.E.2d 857 (1985) (there is no evidence that jury would add to the award
on the erroneous assumption that it would be heavily taxed); Spencer v. A-
1 Crane Serv., Inc., 880 S.W.2d 938 (Tenn. 1994).
99 Several states reject or purport to reject punitive damages
altogether. E.g., Killebrew v. Abbott Labs., 359 So.2d 1275 (La. 1978);
Distinctive Printing & Packaging Co. v. Cox, 443 N.W.2d 566 (Neb. 1989).
But some of these smuggle in awards under statutes in particular cases.
See 1 Dan B. Dobbs, Law of Remedies § 3.11(1).
100 Exxon Shipping Co. v. Baker, 554 U.S. 471, 493, 128 S.Ct. 2605,
2621, 171 L.Ed.2d 570 (2008) (quoting Restatement Second of Torts §
908(2)).
101 David Owen’s phrase, see David G. Owen, The Moral Foundations
of Punitive Damages, 40 Ala. L. Rev. 705, 730 (1989). The conduct itself, as
distinct from the state of mind, is in fact almost always serious. But to
some extent, the conduct may seem egregiously bad because of the
defendant’s bad purpose or bad state of mind. Kolstad v. American Dental
Ass’n, 527 U.S. 526, 119 S.Ct. 2118 (1999).
102 See Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632
(1983).
103 Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992);
Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 836 N.Y.S.2d 509, 868
N.E.2d 189 (2007).
104 E.g., Pouzanova v. Morton, 327 P.3d 865 (Alaska 2014) (“reckless
disregard of safety of another”); Galaxy Cable, Inc. v. Davis, 58 So.3d 93
(Ala. 2010); Qwest Servs. Corp. v. Blood, 252 P.3d 1071 (Colo. 2011), cert.
dismissed, 132 S.Ct. 1087, 181 L.Ed.2d 805 (2012); Hutchison v. Luddy,
896 A.2d 1260 (Pa. Super. Ct. 2006); Johnson v. Rogers, 763 P.2d 771
(Utah 1988); Philip Morris, Inc. v. Emerson, 235 Va. 380, 407, 368 S.E.2d
268, 283 (1988).
105 E.g., First Nat’l Bank of Pulaski, Tenn. v. Thomas, 453 So. 2d
1313, 1320 (Ala. 1984) (“rudeness, wantonness, recklessness, or an
insulting manner, or accompanied by circumstances of fraud and malice,
oppression, aggravation, or gross negligence”); Johnson & Johnson v.
Superior Court, 192 Cal. App. 4th 757, 121 Cal. Rptr. 3d 640 (2d Dist.
2011) (quoting Cal. Civ. Code 3294 (c)(1), punitive damages may be
awarded only upon proof of “despicable conduct … carried on by the
defendant with a willful and conscious disregard of the rights of safety of
others”; also saying that summary judgment was proper “only when no
reasonable jury could find the plaintiff’s evidence to be clear and
convincing proof of malice, fraud or oppression”); Selle v. Tozser, 786
N.W.2d 748 (S.D. 2010) (“presumed malice” for purpose of punitive
damages can be shown by a disregard for the rights of others).
106 See David Owen, Civil Punishment and the Public Good, 56 S. Cal.
L. Rev. 103, 104 (1982). Although courts may verbalize the test of punitive
liability as involving at least a deliberate indifference, the facts may show
abuse of power or special relationship, and may be a good predictor of the
court’s conclusion. Hutchison v. Luddy, 896 A.2d 1260 (Pa. Super. Ct.
2006).
107 See Smith v. Wade, 461 U.S. 30, 47–48, 103 S.Ct. 1625, 1636, 75
L.Ed.2d 632, 646 (1983); Countrywide Home Loans, Inc. v. Thitchener, 192
P.3d 243, 252 (Nev. 2008).
108 E.g., Pouzanova v. Morton, 327 P.3d 865 (Alaska 2014); Linthicum
v. Nationwide Life Ins. Co., 150 Ariz. 326, 723 P.2d 675 (1986); Brokaw v.
Winfield-Mt. Union Cmty. Sch., 788 N.W.2d 386 (Iowa 2010); Flax v.
DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008); see also Lee R. Russ,
Annotation, Standard of Proof as to Conduct Underlying Punitive Damage
Awards—Modern Status, 58 A.L.R.4th 878 (1987).
109 Colo. Rev. Stat. § 13–25–127.
110 E.g., White v. Ford Motor Co., 500 F.3d 963 (9th Cir. 2007).
111 E.g., Hough v. Mooningham, 139 Ill.App.3d 1018, 487 N.E.2d
1281, 94 Ill.Dec. 404 (1986) (defendant struck plaintiff with shovel).
112 See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex.
2000).
113 See Hutchison v. Luddy, 896 A.2d 1260 (Pa. Super. Ct. 2006)
(clergy).
114 See Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 863 P.2d
795, 25 Cal.Rptr.2d 550 (1993). By statute punitive damages can be
recovered by the United States in certain cases. 42 U.S.C.A. § 9607(c)(3).
115 E.g., Coster v. Crookham, 468 N.W.2d 802 (Iowa 1991). If a
restitutionary remedy is granted for breach of fiduciary duty or fraud,
however, some courts may still refuse punitive damages.
116 E.g., Talent Tree Personnel Servs. v. Fleenor, 703 So.2d 917 (Ala.
1997) (either intentional misrepresentation or concealment of facts
defendant was obliged to disclose, if oppressive or malicious).
117 West v. Western Cas. & Sur. Co., 846 F.2d 387 (7th Cir. 1988);
Hutchison v. Luddy, 896 A.2d 1260 (Pa. Super. Ct. 2006) (diocese’s pattern
and practices in addressing neither the problem of its child-molester
priests nor the consequences they caused to parishioners).
118 E.g., Campbell v. Van Roekel, 347 N.W.2d 406 (Iowa 1984) (single
vehicle accident); Cabe v. Lunich, 70 Ohio St.3d 598, 640 N.E.2d 159
(1994) (evidence that driver had consumed alcohol prior to accident is
relevant and bears on malice).
119 E.g., Torres v. North Am. Van Lines, Inc., 135 Ariz. 35, 658 P.2d
835 (Ct. App. 1982) (company’s failure to monitor driving-time logs of
drivers); Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 378, 494 N.E.2d
70, 74–75, 502 N.Y.S.2d 965, 970 (1986) (employer liable for punitive
damages if “the wrong was in pursuance of a recognized business system”
of the employer). Cf. Qwest Servs. Corp. v. Blood, 252 P.3d 1071 (Colo.
2011), cert. dismissed, 132 S. Ct. 1087, 181 L. Ed. 2d 805 (2012) ($18
million punitive damages award was justified where the evidence showed
beyond a reasonable doubt that the telephone utility consciously chose to
forgo a periodic wooden-pole inspection program and knew or should have
known that the conduct would probably result in injuries, and refused to
institute such an inspection program even after a lineman was injured
when a pole collapsed).
120 Tetuan v. A.H. Robins Co., 241 Kan. 441, 738 P.2d 1210 (1987).
121 See, e.g., id. (concealment, cover-up by attempted burning of
corporate records); Cynthia R. Mabry, Warning! The Manufacturer of this
Product May Have Engaged in Cover-Ups, Lies, and Concealment: Making
the Case for Limitless Punitive Awards in Product Liability Lawsuits, 73
Ind. L.J. 187, 216–34 (1997) (detailing Dalkon Shield, asbestos, tobacco
and other cases).
122 See, e.g., Exxon Shipping Co. v. Baker, 554 U.S. 471, 492, 128 S.Ct
2605, 2621, 171 L.Ed.2d 570 (2008) (“the consensus today is that punitives
are aimed not at compensation but principally at retribution and deterring
harmful conduct”). Courts have also sometimes considered punitive
damages as a source of funds to aid in financing costly litigation, see 1 Dan
B. Dobbs, Law of Remedies § 3.11(3) (2d ed. 1993), as an emphatic
expression of community values, and as a sum added when it is difficult to
be sure that the compensatory award was sufficient and the defendant’s
conduct has no redeeming value. See Kemezy v. Peters, 79 F.3d 33 (7th
Cir. 1996); Haralson v. Fisher Surveying, Inc., 201 Ariz. 1, 31 P.3d 114
(2001).
123 This interest is arguably absent when the defendant dies, as some
courts have recognized in barring the recovery of punitive damages for
personal injuries after the death of the defendant. See Vincent v. Alden-
Park Strathmoor, Inc., 241 Ill.2d 495, 350 Ill.Dec. 330, 948 N.E.2d 610
(2011). Wrongful death statutes sometimes alter this result, either
explicitly or as interpreted by courts. See 2 Dobbs, Hayden & Bublick, The
124 See, elaborating this idea and constructing a theory for punitive
awards and their measure, A. Mitchell Polinsky & Steven Shavell,
Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869 (1998).
125 Nev. Rev. Stat. Ann. § 42.007; Restatement Second of Torts § 909
(1979); see also Model Punitive Damages Act § 6; 1 Dan B. Dobbs, Law of
Remedies § 3.11(6) (2d ed. 1993).
126 Haralson v. Fisher Surveying, Inc., 201 Ariz. 1, 31 P.3d 114 (2001);
Stroud v. Denny’s Rest., Inc., 271 Or. 430, 532 P.2d 790 (1975).
127 Whalen v. On-Deck, Inc., 514 A.2d 1072, 1074 (Del. 1986);
Lunceford v. Peachtree Cas. Ins. Co., 230 Ga.App. 4, 495 S.E.2d 88 (1997);
Va. Code Ann. § 38.2–227. See also Ross Neely Sys., Inc. v. Occidental Fire
& Cas. Co. of N.C., 196 F.3d 1347 (11th Cir. 1999) (Alabama insurers may
include or exclude coverage for punitive damages generally, but must
cover punitive damages for wrongful death).
128 See Flint Hills Rural Elec. Coop. Ass’n v. Federated Rural Elec.
Ins. Corp., 262 Kan. 512, 941 P.2d 374 (1997) (not permissible to insure
against punitive liability for one’s own act, but permissible to insure
against vicarious punitive liability).
129 Among a great many, see Dan B. Dobbs, Ending Punishment in
“Punitive” Damages: Deterrence-measured Remedies, 40 Ala. L. Rev. 831,
871–88 (1989); Dorsey D. Ellis, Jr., Fairness and Efficiency in the Law of
Punitive Damages, 56 S. Cal. L. Rev. 1 (1982); Thomas C. Galligan, Jr.,
Foreward: Punitive Damages Today and Tomorrow, 70 La. L. Rev. 421
(2010) (introducing symposium on punitive damages); Dan Markel, How
Should Punitive Damages Work?, 157 U. Pa. L. Rev. 1383 (2009); David G.
Owen, The Moral Foundations of Punitive Damages, 40 Ala. L. Rev. 705
(1989); A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An
Economic Analysis, 111 Harv. L. Rev. 869 (1998); Cass R. Sunstein, et al.,
Assessing Punitive Damages (With Notes on Cognition and Valuation in
Law), 107 Yale L.J. 2071 (1998); Symposium, The Future of Punitive
Damages, 1998 Wis. L. Rev. 1 (eleven articles).
130 John J. Kircher & Christine M. Wiseman, Punitive Damages Law
and Practice (2 vols. 2d ed. 2000); Linda L. Schlueter & Kenneth R.
Redden, Punitive Damages (2 vols. 4th ed. 2000); see 1 Dan B. Dobbs, Law
of Remedies § 3.11 (2d ed. 1993).
131 Exxon Shipping Co. v. Baker, 554 U.S. 471, 496, 128 S.Ct 2605,
2625, 171 L.Ed.2d 570 (2008).
132 One large empirical study found that among the cases sampled,
punitive damages were awarded in only about 4% of cases won by
plaintiffs. Of these, a large proportion consisted of intentional tort and
fraud cases. See Theodore Eisenberg, et al., Juries, Judges, and Punitive
Damages: An Empirical Study, 87 Cornell L. Rev. 743 (2002). The same
study concluded that judges award punitive damages about as often as
juries and in about the same ratio to compensatory awards as juries. Id. at
746.
133 See Exxon Shipping Co. v. Baker, 554 U.S. 471, 496, 128 S.Ct
2605, 2623, 171 L.Ed.2d 570 (2008).
134 E.g., Jeff Kerr, Exxon Shipping Co. v. Baker: The Perils of Judicial
Punitive Damages Reform, 59 Emory L.J. 727 (2010); Leo M. Romero,
Punishment for Ecological Disasters: Punitive Damages and/or Criminal
Sanctions, 7 U. St. Thomas. L.J. 154 (2009); W. Kip Viscusi, Saving Lives
Through Punitive Damages, 83 S. Cal. L. Rev. 229 (2009).
135 E.g., Doug Redleman, Common Law Punitive Damages:
Something for Everyone, 7 U. St. Thomas. L.J. 1 (2009); Catherine M.
Sharkey, The Exxon Valdex Litigation Marathon: A Window on Punitive
Damages, 7 U. St. Thomas. L.J. 25 (2009).
136 Adams v. Murakami, 54 Cal. 3d 105, 284 Cal. Rptr. 318, 813 P.2d
1348 (1991); Adel v. Parkhurst, 681 P.2d 886 (Wyo. 1984).
137 Kemezy v. Peters, 79 F.3d 33 (7th Cir. 1996).
138 E.g., Campen v. Stone, 635 P.2d 1121, 32 A.L.R.4th 410 (Wyo.
1981); Cal. Civ. Code § 3295 (d); N.C. Gen. Stat. § 1D–30 (jury first
determines liability and compensation, then punitive damages); Tex. Civ.
Prac. & Rem. Code Ann. § 41.009.
139 Trifurcation with separate segments for liability, compensation,
and punitive awards is also a possibility.
140 Multiple damages statutes, authorizing, say, treble damages, may
have punitive effects but only fortuitously will a fixed multiple reflect
either appropriate deterrence levels or appropriate retribution.
141 Labonte v. Hutchins & Wheeler, 424 Mass. 813, 678 N.E.2d 853
(1997); Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897
(1991); see also Model Punitive Damages Act § 7 (listing similar factors
and others, including “any adverse effect of the award on innocent
persons”).
142 See Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672 (7th Cir.
2003).
143 E.g., Palmer v. Ted Stevens Honda, Inc., 193 Cal.App.3d 530, 238
Cal.Rptr. 363 (1987); see generally 1 Dan B. Dobbs, Law of Remedies §
3.11(11) (2d ed. 1993).
144 Distinguish the use of compensatory damage multiples under the
Polinsky-Shavell theory. See n. 124, supra.
145 TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 459, 113
S.Ct. 2711, 125 L.Ed.2d 366 (1993). See also Bowden v. Caldor, 350 Md. 4,
40, 710 A.2d 267, 285 (1998).
146 See 1 Dan B. Dobbs, Law of Remedies, § 3.11(5) (2d ed. 1993).
147 See, e.g., Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978) (“A
$60,000 award may bankrupt one person and be a minor annoyance to
another”); Thiry v. Armstrong World Indus., 661 P.2d 515 (Okla. 1983). In
Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672 (7th Cir. 2003), Judge
Posner commented that the defendant’s wealth might permit it to
aggressively defend in order to make litigation too costly for the plaintiff to
afford.
148 See Michael v. Cole, 122 Ariz. 450, 595 P.2d 995 (1979); Hardin v.
Caldwell, 695 S.W.2d 189 (Tenn. Ct. App. 1985); Bankhead v.
ArvinMeritor, Inc., 205 Cal.App. 4th 68, 139 Cal.Rptr.3d 849 (2012), as
modified, (Apr. 25, 2012), and review denied (July 11, 2012). See also
Sulton v. HealthSouth Corp., 400 S.C. 412, 734 S.E.2d 641 (2012)
(hospital’s net operating revenue of $2 billion should not have gone to the
jury in damages phase; net revenue has no necessary relation to net
worth).
149 See Dan B. Dobbs, Ending Punishment in “Punitive” Damages:
Deterrence-measured Remedies, 40 Ala. L. Rev. 831, 871–88 (1989)
(proposing punitive damages to equal the amount needed to deter, either
the wrongdoer’s profits from the tortious activity or where that measure is
not feasible, a reasonable attorney’s fee for the plaintiff, not limited to a
percentage of recovery). See also Johnson v. Ford Motor Co., 35 Cal.4th
1191, 1207–08, 113 P.3d 82, 29 Cal.Rptr.3d 401 (2005).
150 John J. Kircher & Christine M. Wiseman, 1 Punitive Damages
Law and Practice § 3:2 (2d ed. 2000 & Supps.).
151 See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 20, 111 S.Ct.
1032, 1045, 113 L.Ed.2d 1, 21 (1991).
152 See discussion in Johnson v. Ford Motor Co., 35 Cal.4th 1191,
1208–12, 113 P.3d 82, 29 Cal.Rptr.3d 401 (2005).
153 This was dictated in Ga. Code § 51–12–5.1, held unconstitutional
as discriminatory in McBride v. General Motors Corp., 737 F.Supp. 1563
(M.D. Ga. 1990).
2605, 2625, 171 L.Ed.2d 570 (2008).
155 Commentators have argued that the response to unpredictability
logically should be legislatively enacted guidelines similar to criminal
sentencing guidelines, rather than judicially-adopted guidelines to limit
awards. See, e.g., id. at 504–05, 128 S.Ct. at 2628–29 (but rejecting notion
that federal criminal sentencing guidelines have provided predictability);
Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 678 (7th Cir. 2003);
Jeffrey L. Fisher, The Exxon Valdez Case and Regularizing Punishment,
26 Alaska L. Rev. 1, 46 (2009).
156 E.g., W. Kip Viscusi, Saving Lives Through Punitive Damages, 83
S. Cal. L. Rev. 229 (2010) (arguing that Supreme Court’s focus on punitive
damages ratios rather than total damages needed for deterrence is
mistaken).
157 Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S.
257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989).
158 Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032,
1043, 113 L.Ed.2d 1 (1991).
159 Id.
160 See Honda Motor Co. Ltd. v. Oberg, 512 U.S. 415, 114 S.Ct. 2331,
129 L.Ed2d 336 (1994).
161 Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 20, 111 S.Ct. 1032,
1045, 113 L.Ed.2d 1, 21 (1991). See also TXO Prod. Corp. v. Alliance Res.
Corp., 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993).
162 BMW of N. Am. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d
809 (1996).
163 In BMW, the Court’s language first speaks of the ratio of punitive
damages to potential harm, id. at 575, 116 S.Ct. at 1598, but later of the
ratio of punitive damages to actual damages, id. at 580, 116 S.Ct. at 1601.
When the Court finally explicates the principle, it returns to the concept of
potential harm. Id. at 581, 116 S.Ct. at 1602.
164 Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424,
149 L.Ed. 2d 674, 121 S.Ct. 1678 (2001).
165 See Simon v. San Paolo U.S. Holding Co., Inc., 35 Cal.4th 1159,
1172 & n.2, 113 P.3d 63, 29 Cal.Rptr.3d 379 (2005); Groshek v. Trewin,
784 N.W.2d 163 (Wis. 2010). However, a New Mexico court has held that
Cooper Industries’ de novo review rule is not a constitutional requirement
but only a federal procedural standard. Seitzinger v. Trans-Lux Corp., 40
P.3d 1012, 1023 (N.M. Ct. App. 2001).
166 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123
S.Ct. 1513, 155 L.Ed.2d 585 (2003).
167 Id. at 424–25; 123 S.Ct. at 1524. See Goddard v. Farmers Ins. Co.
of Or., 344 Or. 232, 179 P.3d 645 (2008) (rejecting jury’s 16-to-1 award in
favor of 4-to-1 award based on “general rule” for economic injuries).
168 Mitchell, Jr. v. Fortis Ins. Co., 686 S.E.2d 176 (S.C. 2009) (9.2-to-1
ratio in case in which insurer spent no more than 3 minutes on decision for
rescission of policy to HIV infected policyholder); Flax v. DaimlerChrysler
Corp., 272 S.W.3d 521 (Tenn. 2008) (upholding a 5.35-to-1 ratio award,
emphasizing reprehensibility in a wrongful death action). Kemp v.
American Tel. & Tel. Co., 393 F.3d 1354 (11th Cir. 2004).
169 Simon v. San Paolo U.S. Holding Co., Inc., 35 Cal. 4th 1159, 1182,
113 P.3d 63, 77, 29 Cal. Rptr. 3d 379, 395 (2005).
170 Roby v. McKesson Corp., 47 Cal.4th 686, 718, 219 P.3d 749, 769
(2009) (wrongful discharge and harassment claim). This 1-to-1 ratio has
not been seen as an absolute limit where the defendant’s conduct was
found to be “highly reprehensible,” as in Bankhead v. ArvinMeritor, Inc.,
205 Cal.App.4th 68, 139 Cal.Rptr.3d 849 (2012), as modified (Apr. 25,
2012), and review denied (July 11, 2012) (affirming a punitive damages
award of about 2.4 times the compensatory damages).
2605, 2629, 171 L.Ed.2d 570 (2008) (“the ratio between compensatory and
punitive damages is … a central feature in our due process analysis”);
Kimble v. Land Concepts, Inc., 845 N.W.2d 395 (Wis.), cert. denied, 135
S.Ct. 359 (2014).
172 See Perrine v. E.I. du Pont de Nemours & Co., 694 S.E.2d 815, 879
(W.Va. 2010) (rejecting availability of punitive damages in medical
monitoring claim); Groshek v. Trewin, 784 N.W.2d 163, 171 (Wis. 2010)
(rejecting availability of punitive damages in rescission claim; Chief
Justice Abrahamson filied a lengthy dissent).
173 Mitchell, Jr. v. Fortis Ins. Co, 686 S.E.2d 176 (S.C. 2009).
174 Id.
175 Goff v. Elmo Greer & Sons Constr. Co., Inc., 297 S.W.3d 175
(Tenn. 2009) (burying waste tires on property, under 8–9 feet of rock, in
violation of agreement with landowners despite repeated reassurances to
the contrary).
176 Weinstein v. Prudential Prop. & Cas. Ins. Co., 233 P.3d 1221
(Idaho 2010).
177 Malcolm v. Evenflo Co., Inc., 217 P.3d 514 (Mont. 2009).
178 See Boyd v. Goffoli, 216 W.Va. 552, 608 S.E.2d 169 (2004)
(plaintiffs, West Virginia workers, were fraudulently induced to leave jobs
in West Virginia and apply for Pennsylvania commercial truck drivers’
licenses in a scheme that violated Pennsylvania law and resulted in harm
to the plaintiffs at their homes in West Virginia; held, Campbell did not
foreclose basing punitive damages in part on the Pennsylvania conduct).
179 Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 539–40 (Tenn.
2008); see also Willow Inn, Inc. v. Public Serv. Mut. Ins. Co., 399 F.3d 224,
237–38 (3d Cir. 2005).
180 The Court thus appears to apply a very narrow concept of
similarity. Although third-party claims are different from first-party
claims, the Utah courts believed that the evidence in Campbell showed a
larger scheme to systematically cheat its own insureds, regardless of the
nature of the claim, and to cover up the evidence. Thus, a common purpose
or similar modes of committing two different acts is seemingly not enough
to establish similarity when it comes to applying constitutional limits to
punitive damages.
181 The later decision in Philip Morris USA v. Williams, 549 U.S. 346,
127 S.Ct. 1057 (2006), discussed below, appears to support this view.
182 As to punitive liability for post-injury conduct, see 2 Dobbs,
183 See In re Tobacco Litig., 218 W.Va. 301, 624 S.E.2d 738 (2005) (in
consolidated cases, allowing a determination of the punitive damages
multiplier before assessing individual compensatory damages in a second
stage of trial, using a “reasonably related” standard rather than a
standard requiring punitive damages must be based on “acts upon which
liability was premised”).
184 See BMW of N. Am., Inc. v. Gore, 517 U.S. at 574 n.21, 116 S.Ct.
at 1598 n. 21; Johnson v. Ford Motor Co., 35 Cal.4th 1191, 113 P.3d 82, 29
Cal.Rptr.3d 401 (2005); Schwarz v. Philip Morris Inc., 235 P.3d 668 (Or.
2010).
185 Philip Morris USA v. Williams, 549 U.S. 346, 127 S.Ct. 1057, 166
L.Ed.2d 940 (2007).
186 Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605, 171
L.Ed.2d 570 (2008).
187 See also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,
425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).
188 Dan B. Dobbs, Ending Punishment in “Punitive” Damages:
Deterrence-Measured Remedies, 40 Ala. L. Rev. 831, 871–88 (1989).
189 See § 34.5.
190 White v. Ford Motor Co., 500 F.3d 963 (9th Cir. 2007); Mathias v.
Accor Econ. Lodging, Inc., 347 F.3d 672 (7th Cir. 2003); Simon v. San
Paolo U.S. Holding Co., Inc., 35 Cal. 4th 1159, 113 P.3d 63, 29 Cal. Rptr.
3d 379 (2005); International Union of Operating Eng’rs, Local 150 v. Lowe
Excavating Co., 225 Ill.2d 456, 870 N.E.2d 303, 312 Ill. Dec. 238 (2006);
Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc., 194 N.J. 212, 943 A.2d 866
(2008); Williams v. Philip Morris Inc., 344 Or. 45, 176 P.3d 1255 (2008).
191 The arguments on both sides are considered in 3 Dobbs, Hayden &
192 E.g., Cal. Civ. Code § 3333.2 (professional negligence).
193 E.g., Boiter v. South Carolina Dep’t of Transp., 393 S.C. 123, 712
S.E.2d 401 (2011); Oliver v. Cleveland Indians Baseball Co. Ltd. P’ship,
915 N.E.2d 1205 (Ohio 2009); Me. Rev. Stat. Ann. tit. 14 § 8105. Or. Rev.
Stat. Ann. § 30.270(1), which limited compensatory damages against
public bodies, was declared unconstitutional for violating the state
constitution’s remedy clause in Clarke v. Oregon Health Sciences Univ.,
343 Or. 581, 175 P.3d 418 (2007).
194 E.g., Utah Code Ann. § 32A–14–101(5) ($500,000 cap).
195 Cal. Civ. Code § 3333.4. See Allen v. Sully-Miller Contracting Co.,
28 Cal.4th 222, 47 P.3d 639, 120 Cal.Rptr.2d 795 (2002) (applying the
statute to bar a recovery for pain in a suit for a property defect that caused
the plaintiff’s motorcycle to overturn).
196 September 11th Victim Compensation Fund of 2001, Pub.L. 107–
42 tit. IV, 115 Stat. 230 (2001) (uncodified sections reprinted in the United
States Code Annotated notes following 49 U.S.C.A. § 40401).
197 Md. Code Ann., Cts. & Jud. Proc. § 11–108.
198 La. Rev. Stat. Ann. § 40:1299.42; see Butler v. Flint Goodrich
Hosp., 607 So. 2d 517 (La. 1992).
199 Colo. Rev. Stat. § 13–64–302; Va. Code § 8.01–581.15 ($1 million
cap on total damages against health care provider).
200 Cal. Civ. Code § 3333.2; Md. Code Ann., Cts. & Jud. Proc. § 11–
108; Ohio Rev. Code Ann. § 2315.18 (as amended 2005); Green v. N.B.S,
976 A.2d 279 (Md. 2009) (applying Maryland’s statutory cap on
noneconomic damages in personal injury actions).
201 Utah Code Ann. § 32A–14–101(5).
202 Cal. Civ. Code § 3333.2.
203 Kan. Stat. Ann. § 60–1903; see Adams v. Via Christi Reg’l Med.
Ctr., 19 P.3d 132 (Kan. 2001).
204 Ohio Rev. Code Ann. § 2315.18(B) (as amended 2005). This portion
was upheld against constitutional attack in Arbino v. Johnson & Johnson,
116 Ohio St.3d 468, 880 N.E.2d 420 (2007).
2011 & Supp.).
206 See, e.g., Thomas A. Eaton, et al., The Effects of Seeking Punitive
Damages on the Processing of Tort Claims, 34 J. Legal Stud. 343 (2005)
(study finding “no statistically significant impact on most phases of the
litigation process,” except that suits with uncapped punitive damages
claims were less likely to settle and more likely to go to trial than suits
with capped punitive damages claims).
207 A cap of, say, $250,000 on punitive damages does not at all touch
the median punitive award in many counties. An American Bar
Foundation study found that the median punitive award was as low as
$10,000 in some counties with a top of $204,000 in San Diego. See Michael
L. Rustad, Unraveling Punitive Damages: Current Data and Further
Inquiry, 1998 Wis. L. Rev. 15, 20–30.
208 Cf. Luciano v. Olsten Corp., 110 F.3d 210 (2d Cir. 1996) (the
maximum is not the ceiling on a scale, so trier can fix the award at the
maximum even if the misconduct is not the worst imaginable).
209 See Morris v. Savoy, 61 Ohio St.3d 684, 691, 576 N.E.2d 765, 771
(1991) (cap imposes “the cost of the intended benefit to the general public
solely upon a class consisting of those most severely injured by medical
malpractice”).
210 Moore v. Mobile Infirmary Ass’n, 592 So.2d 156 (Ala. 1991)
(malpractice noneconomic damage cap denied right to jury trial and equal
protection; statute created favored class of defendants); Bayer CropScience
LP v. Schafer, 385 S.W.3d 822 (Ark. 2011) (statutory cap on punitive
damages unconstitutional under section of Arkansas Constitution
prohibiting the legislature from limiting the amount to be recovered for
injuries resulting in death or for injuries to persons or property); Smith v.
Department of Ins., 507 So.2d 1080 (Fla. 1987); Best v. Taylor Mach.
Works, 179 Ill.2d 367, 413, 689 N.E.2d 1057, 1080, 228 Ill.Dec. 636, 659
(1997) (noneconomic damages generally capped at $500,000; the statute
“undercuts the power, and obligation, of the judiciary to reduce excessive
verdicts” and violates separation of powers provisions); Lewellen v.
Franklin, 441 S.W.3d 136 (Mo. 2014) (cap on punitive damages violates
state constitutional right to trial by jury); State v. Sheward, 86 Ohio St.3d
451, 715 N.E.2d 1062 (1999) (first-taker rule for punitive damages
unconstitutionally deprived plaintiff of jury trial); Morris v. Savoy, 61 Ohio
St.3d 684, 576 N.E.2d 765 (1991) (medical malpractice cap was irrational
and arbitrary and violates due process); Klutschkowski v. PeaceHealth,
311 P.3d 461 (Or. 2013) (cap on economic damages unconstitutional under
jury trial provision of Oregon constitution); Ferdon v. Wisconsin Patients
Comp. Fund, 284 Wis. 2d 573, 701 N.W.2d 440 (2005) (noneconomic
damage cap of $350,000 in medical malpractice claims violated state
constitution’s equal protection provision; there was no rational basis for
caps that made the worst-injured malpractice victims contribute part of
their damages to medical insurers and data showed no basis for thinking
that caps would reduce insurance costs).
211 Patton v. TIC United Corp., 77 F.3d 1235 (10th Cir. 1996); Fein v.
Permanente Med. Group, 38 Cal.3d 137, 695 P.2d 665, 211 Cal.Rptr. 368
(1985); Garhart v. Columbia/Healthone, LLC, 95 P.3d 571 (Colo. 2004);
Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115 (Idaho 2000); Murphy v.
Edmonds, 325 Md. 342, 601 A.2d 102 (1992); Sanders v. Ahmed, 364
S.W.3d 195 (Mo. 2012); Gourley v. Nebraska Methodist Health Sys., Inc.,
265 Neb. 918, 663 N.W.2d 43 (2003); Robinson v. Charleston Area Med.
Ctr., Inc., 186 W.Va. 720, 414 S.E.2d 877 (1991). Cf. Estate of McCall ex
rel. McCall v. U.S., 642 F.3d 944 (11th Cir. 2011).
212 Univ. of Miami v. Echarte, 618 So.2d 189 (Fla. 1993) (caps apply
only when defendant accepts arbitration, regarded as an offsetting
benefit); Butler v. Flint Goodrich Hosp., 607 So.2d 517 (La. 1992) (patient
compensation fund). See also Miller v. Johnson, 295 Kan. 636, 289 P.3d
1098 (2012) (upholding constitutionality of cap on non-economic damages
in medical malpractice cases in part because legislature provided a
substitute remedy in the form of a patient compensation fund). Cf.
Samples v. Florida Birth-Related Neurological Injury Comp. Ass’n, 114
So.3d 912 (Fla. 2013) (upholding constitutionality of damage caps in case
of birth-related neurological injury where statute provides for no-fault
insurance via an alternative plan).
213 Hughes v. PeaceHealth, 344 Or. 142, 178 P.3d 225 (2008).
214 See II American Law Institute, Reporter’s Study, Enterprise
Responsibility for Personal Injury 230 (1991).
215 Randal R. Bovbjerg, Frank A. Sloan & James F. Blumstein,
Valuing Life and Limb in Tort: Scheduling “Pain and Suffering”, 83 Nw. U.
L. Rev. 908 (1989) (considers variations and details).
216 See § 36.6 (the grids used in social security claims).
217 Surette v. Islamic Republic of Iran, 231 F.Supp. 2d 60 (D.D.C.
2002).
218 Cass R. Sunstein, et al., Assessing Punitive Damages (With Notes
on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998).
219 Iowa Code Ann. § 668A.1 (75% or more to a state agency except
when tort is “directed at” the plaintiff).
220 See Evans v. State, 56 P.3d 1046 (Alaska 2002) (affirming 2–2 a
judgment upholding constitutionality); Cheatham v. Pohle, 789 N.E.2d 467
(Ind. 2002); DeMendoza v. Huffman, 334 Or. 425, 51 P.3d 1232 (2002).
877
Chapter 35
APPORTIONMENT OF LIABILITY
AMONG PARTIES
Analysis
A. INTRODUCTION: JOINT AND SEVERAL LIABILITY AND
SEVERAL LIABILITY
§ 35.2 Traditional Rules and Joint and Several Liability
§ 35.3 Joint and Several Liability vs. Several Liability Systems
§ 35.5 General Effects of Adopting Several Liability Systems
B. PERSONS AND CONDUCT SUBJECT TO APPORTIONMENT
§ 35.7 Types of Actionable Conduct Subject to Apportionment
C. STANDARDS
D. SPECIAL CASES FOR APPORTIONMENT
§ 35.9 Defendants Who Negligently Risk Another Tortfeasor’s
Intentional Harm
§ 35.10 Defendants Who Are Under a Duty to Protect Plaintiff from
Another’s Negligence
E. OTHER APPORTIONMENT SYSTEMS
§ 35.11 Joint and Several Liability with Reallocation
§ 35.12 Hybrid Systems: Joint and Several Liability Based on Threshold
Percentages or Type of Damages
__________
A. INTRODUCTION: JOINT AND SEVERAL

LIABILITY AND SEVERAL LIABILITY
Apportionment basics. When the tortious conduct of multiple
parties causes a harm, questions arise about how to divide
responsibility for damages among the various actors. This issue of
damages division is addressed by the rules of apportionment of
liability. There are two basic forms of liability apportionment:
causal apportionment and fault or responsibility based
apportionment.1
878
Causal apportionment. When two or more tortfeasors cause

divisible harms to the plaintiff, most authorities agree that causal
apportionment should be employed.2 For example, if tortfeasor A
negligently causes the plaintiff to suffer a broken leg and tortfeasor
B negligently causes the plaintiff to suffer a broken arm, each
tortfeasor is normally liable for 100% of the damages that the
tortfeasor separately caused.3 Causal apportionment,4 may also be
required when the plaintiff suffers a single injury rather than
distinct harms but the single injury is capable of being apportioned
in some rational way.5 The principle of causal apportionment can
apply between a plaintiff and a defendant as well as between
defendants, as where the defendant’s asbestos causes lung damage
and the plaintiff’s smoking causes a different lung damage, with
both contributing to a shortness of breath. If evidence shows a
basis for saying that the asbestos caused 90% of the disability, the
defendant will be liable only for that portion of the harm. If no
evidence shows a basis for causal apportionment, the court may
allocate liability in proportion to fault or responsibility instead,6
unless special considerations of public policy bar fault
apportionment.7
Fault apportionment. Fault apportionment takes place when a
plaintiff has suffered a single indivisible injury at the hands of two
or more tortfeasors and the loss cannot be reasonably allocated by
causal measures between the two. Instead, the loss is allocated
based on percentages of fault. For example, suppose tortfeasor A,
who is speeding, crashes into plaintiff’s car. Tortfeasor B, who is
sending a text message while driving, fails to keep a lookout and
hits the plaintiff’s car as well. The plaintiff emerges from the near-
simultaneous accidents with a serious back injury. Experts
attribute the injury to the combined impact of the crashes but
cannot segregate the amount of harm caused by each. Because both
defendants are factual causes of the plaintiff’s single injury and no
causal apportionment of the injury is possible, a jury would be
asked to apportion liability by assigning a percentage of fault or
responsibility to each defendant.
Joint and several liability. Suppose the jury finds that
defendant A is chargeable with 60% of the fault and defendant B
with 40% of the fault. The jury also finds that the plaintiff has
suffered $100,000 in damages: $50,000 in past and future medical
expenses and $50,000 in pain and suffering. If joint and several
liability applies, each defendant will be liable to the plaintiff for
the full $100,000 in damages, subject to the caveat that the
plaintiff can only receive one satisfaction of the judgment.
Consequently, if the plaintiff recovers the full $100,000 from
defendant A, she can recover nothing at all against defendant B.
However, defendant A can call upon defendant B for contribution
for the $40,000 owed by B.
879
Several liability. If on the other hand, several liability applies,

the plaintiff only can call on defendant A for payment of $60,000
and defendant B for payment of $40,000. If either of the two
negligent defendants cannot pay, it is the plaintiff who will bear
the uncompensated loss.
Other ways to apportion liability; joint and several liability for
economic damages. Although joint and several liability and several
liability are two prominent options for sharing the loss, they are
far from the only options. Some jurisdictions retain joint and
several liability, but only for certain elements of the damages such
as those based on the economic harm done to the plaintiff. In a
jurisdiction like this, not only would defendant A pay the $60,000
liability assigned to A, but also defendant A would be jointly and
severally liable for the $20,000 of defendant B’s liability to plaintiff
for economic losses (40% of the plaintiff’s $50,000 economic loss
damages). Defendant A would not be jointly and severally liable for
the $20,000 of defendant B’s share of the judgment that was due to
pain and suffering. Similarly, some jurisdictions retain joint and
several liability only if the defendant’s percentage of responsibility
exceeds a certain threshold percentage such as 50%. In a
jurisdiction with this rule, defendant A, assigned 60% of the
liability, would be jointly and severally liable for defendant B’s
uncollectible share. However, defendant B, assigned 40% of the
total liability, would not be jointly and severally liable if defendant
A’s share were uncollectible. Other possibilities exist.
Joint and several liability with reallocation. Some jurisdictions
have joint and several liability with reallocation. This means that
if the plaintiff cannot collect a judgment from one of the parties,
that portion of the judgment will be reallocated among the
remaining parties on the basis of the remaining parties’ fault. In
the example with defendant A and B, because the plaintiff was
assigned no fault, defendant A would bear the full cost of
defendant B’s insolvency. However, if instead the plaintiff had
been assigned 30% of the fault and defendant A 30% of the fault,
defendant B’s uncollectible 40% share would be split by defendant
A and the plaintiff 1:1—each would bear their assigned shares of
the loss plus one-half of B’s share.
Varied rules. As the variations in these illustrations suggest,
apportionment of liability among multiple actors, once a fairly
straightforward topic, has now become increasingly fragmented
and complex. In fact, so divided is state law that when the
Restatement Third of Torts was published at the start of the
millennium, its provisions recognized five alternative “tracks” of
liability apportionment that states might employ to address the
situation of multiple tortfeasors who create indivisible harms—one
for joint and several liability, another for several liability, one for
joint and several liability with reallocation, another for hybrid
liability based on a threshold percentage of comparative
responsibility, and a final chapter on hybrid liability based on the
type of damages.8 And the categories are not mutually exclusive.9
Indeed, given the varied apportionment-related statutes and case
law in existence at the time the Restatement was enacted,10 no
single approach to the issue could have been followed in all
880
jurisdictions. As is the case whenever statutes pervade and

state case law varies, reference to the legislation and precedent of
particular jurisdictions is essential. Despite jurisdictional
differences, the issue of indivisible injury remains significant
across the board. In joint and several liability the defendant is
liable for that indivisible injury. In other types of apportionment of
liability arrangements, the fact that the plaintiff suffered an
indivisible injury remains significant because the defendant’s
percentage of liability is measured as a portion of the total of
plaintiff’s indivisible injury damages.11
Issues within apportionment systems. Jurisdictional difference
concerning joint and several liability and several liability frames
the organization of the Restatement and informs the structure of
this chapter. However, many additional issues divide and pervade
the apportionment landscape. In joint and several liability
systems, one of the most important questions is how joint liabilities
are divided between multiple tortfeasors through contribution and
indemnity. In several liability systems, contribution issues arise
much less frequently, but courts have many other issues to resolve.
Because several liability systems typically apportion liability into
mutually exclusive portions, the key questions in these systems
center on (1) which types of conduct and which types of actors can
be a part of the apportionment percentages, (2) on what basis
percentage apportionments are made, and (3) in what
circumstances exceptions to the several liability rule are called for.
Apportionment and policy choices. Courts frequently address
apportionment of liability as though the apportionment itself is a
neutral issue—the defendant should be accountable for its fair
share of responsibility and no more. However, the variation in
state answers to the question of what constitutes a fair share of
damages for which to hold a defendant to account, highlights just
how important a policy question apportionment of liability has
become.
Terminology. Unfortunately, there is no uniform nomenclature
that marks which types of actionable conduct are included in a
jurisdiction’s apportionment of liability system. Because strict
liability and negligence are types of conduct compared in some
jurisdictions, the term comparative “negligence” or even
comparative “fault” becomes problematic. When jurisdictions use
the term comparative “responsibility,” it is typically employed
because the comparisons include at least one form of actionable
conduct in addition to negligence, such as strict liability. A
“comparative fault” system might include comparisons across types
of actionable misconduct,12 or it might not.13 Comparative
“negligence” systems are more likely to focus on negligent acts
alone. The term “apportionment of liability” in this chapter is used
as an umbrella term to encompass all forms of apportionment.
881
§ 35.2 Traditional Rules and Joint and Several

Liability
The meaning of joint and several liability. Joint and several
liability has been recognized since the 1700s,14 and has been
supported by influential torts commentators for some time.15 When
two or more tortfeasors are jointly and severally liable, each
defendant is subject to liability for all of the plaintiff’s damages.16
The effect is to provide the plaintiff with more than one source of
funds but not more than one complete satisfaction.17 If tortfeasor A
has few assets and is underinsured, or A enjoys an immunity or
partial immunity, the plaintiff may be able to enforce the judgment
against tortfeasor B.
Three traditional rules. Apart from the rule requiring causal
apportionment where possible, three other fundamental rules
traditionally governed the apportionment of responsibility among
multiple tortfeasors and the plaintiffs.
(1) Indivisible injury. If the injury was indivisible in
nature (a death or a single broken arm for example), then
each tortfeasor who contributed proximately to that injury
was liable for the entire judgment, although the plaintiff
could not collect more than one full recovery.18 This is often
referred to as a rule for concurrent torts, but concurrence in
time is not required. The essence of the rule is that each
tortfeasor is liable in full for an indivisible injury.19 At one
time this rule was cluttered with procedural problems in
joinder, but all parties can now usually be joined.
(2) Actions in concert, vicarious liability. Whether or not
the injury was indivisible, if the defendants acted in concert,
or one defendant acted tortiously and the other was
vicariously liable, each defendant was liable for the entire
injury.20
(3) Contribution. Apportionment is completed under the
rule that when one tortfeasor paid more than his appropriate
share of liability, he could ordinarily obtain contribution
from the other tortfeasors, a rule generally followed in the
latter part of the 20th century.
Current joint and several liability rules. In 2000, about 14 states
retained substantial joint and several liability rules, and 4 more
retained joint and several liability when the plaintiff is not legally
responsible for any part of her own injury.21 The Supreme Court
has also retained joint and several liability in Federal Employers
882
Liability Act (FELA) cases.22 Even when jurisdictions apply

several liability as the normal rule, joint and several liability
sometimes applies.23
Contribution and indemnity. Because multiple defendants can
be fully liable to the plaintiff under joint and several liability, the
division of damages liability between the defendants through
contribution or indemnity is an important part of fairly
distributing the ultimate liability. The history of contribution and
indemnity, the requirements for making such claims, the way in
which contribution is measured, and the credits issued are
complicated issues only touched on here.24
Contribution. Either by statute or judicial decision, a right of
contribution is now a generally accepted part of the joint and
several liability system25 except that contribution may still be
denied to intentional tortfeasors.26 Early statutes authorized
contribution only when one tortfeasor satisfied a judgment for the
plaintiff; the same tortfeasor’s settlement with the plaintiff would
not support a contribution claim against the other tortfeasors.
These statutes have in effect been broadened by judicial decisions
creating a contribution right even in cases of settlement, somewhat
misleadingly called “equitable indemnity.”27 Other statutes
specifically authorize contribution in favor of a tortfeasor who
satisfies the plaintiff’s claim, whether by paying a judgment or
effecting a settlement that releases the other tortfeasors.28
Traditional indemnity. Indemnity differs from contribution.
While contribution contemplates that two defendants who are
liable to the plaintiff in tort will share in the ultimate liability,
indemnity contemplates that one of those two will fully repay the
other. Suppose A and B are both liable to an injured person and
that A pays that person’s claim, thus extinguishing B’s liability to
the victim. A does not ordinarily have a claim for indemnity
against B. Rather, indemnity is permitted in only a few situations,
where courts have recognized some special duty of B to indemnify
A.29 The special duty to indemnify arises primarily when statutes
so provide30 and in three cases spelled out in the Restatement of
Apportionment—essentially when the indemnitee is liable because
883
of vicarious liability, is an innocent supplier of a product that

caused harm to another, or is under a contractual duty to
indemnify.31
§ 35.3 Joint and Several Liability vs. Several
Liability Systems
Criticism of joint and several liability. Until the tort reform
movement appeared, joint and several liability was not
controversial. Principally in the 1980s, joint and several liability
was attacked on the ground that it was inconsistent with the
adoption of comparative fault and that it forced one tortfeasor to
pay without regard to the degree of his culpability. A third attack
suggested that much of the problem lay with immunities enjoyed
by many tortfeasors.32 If the law decided that some tortfeasors
should be immune, it would be unfair to saddle solvent tortfeasors
with the burden of conduct that the law has in a sense approved.
Responses to the criticism. Perhaps all these points are easily
overrated. At best, they apply to some categories of joint and
several liability but not others. When the plaintiff is not chargeable
with any fault, the adoption of comparative negligence suggests no
reason to dispense with the rule of joint and several liability,33
although it does suggest how contribution among tortfeasors
should be measured. If the problem is that immunities of some
tortfeasors throw the burden disproportionately upon non-immune
defendants under a joint and several liability system, the adoption
of several liability merely shifts the burden to the injured plaintiff;
and if the problem lies with immunities and other departures from
a fault-based liability, the right response is to return to liability
based upon fault.
Liability and defendant’s fault for damage caused. As to the
liability disproportionate to culpability, liability has always
attached for actual damages, no matter how high they might be,
even when the defendant’s fault was quite limited, perhaps a
second’s distraction. In other words, damages have never been
proportioned to fault and to suggest that they must be is to confuse
tort liability with the criminal law of proportionate penalties. The
criticism of joint and several liability also mistakenly identified
comparative fault with degree of fault. The defendant’s fault may
be small by comparison to other tortfeasors, especially if the
defendant can identify a large number of wrongdoers, but his fault
may be extensive nonetheless. In no case is the defendant liable for
damages unless (a) his conduct was negligent or otherwise
actionable, (b) he was a cause in fact of those damages and (c) he
was a proximate or legal cause as well.34
Defendant as one cause of full damages. Finally, critics often
failed to recognize different categories of joint and several liability.
In some types of joint and several liability, the defendant’s
negligent conduct was sufficient by itself to cause the plaintiff’s
harm and would have caused it in the same degree even if no other
tortfeasor had appeared on the horizon. In cases like this, neither
the defendant’s fault nor his causal impact is less in any degree
merely because other tortfeasors also participated. For example, A
and B separately set fire to the plaintiff’s house with a blowtorch
and a gallon
884
of gasoline. Either fire would have burned the house down.35

Similarly, “if two people kill a third, it is not the case that each has
half-killed him.”36 In such cases, no logic suggests why the
appearance of a second tortfeasor should provide the defendant a
windfall; he is no less at fault and he has caused no less harm. In
some other cases, something better might be said for abolishing
joint and several liability,37 but the critics have generally lumped
all joint and several liability cases together.
The trend towards several liability. Most states have now
altered or abolished joint and several liability rules for certain
classes of cases or for certain kinds of damages. They replace it
with several liability of each individual actor based on the
defendant’s apportioned share of the total liability.38
Issues in several liability jurisdictions. In several liability
systems, issues related to contribution as a result of settlement
and satisfaction may still arise,39 but because shares of liability are
typically separate for each defendant, these issues are a rare
possibility. However, there are no shortage of new issues that arise
in jurisdictions with several liability systems.
Counting fault of many persons. When states have abolished or
partially abolished joint and several liability, each tortfeasor is
liable for his comparative fault share of an indivisible injury.
Where that is the case, the plaintiff’s recovery is directly affected
by the number of actors whose fault can be counted. One hundred
percent is the maximum fault available to share among all the
negligent actors, whether there are two or twenty. When only two
actors are negligent, the average fault of each tortfeasor is 50%;
when twenty actors are negligent, the average fault is 5%. In the
absence of joint and several liability, defendants will do better if
they can find additional negligent actors to share in the blame. If
defendant A can get the court to count the fault of defendants B
and C, A’s own percentage of fault and therefore percentage of
liability is likely to be less. That is true, as the Arkansas court long
ago pointed out,40 even though defendant A’s own fault remains
exactly what it was before other tortfeasors were discovered.41
Included tortious conduct and included parties. Because each
party’s apportioned share of liability is diminished by the share
assigned to other parties, defendants, and sometimes plaintiffs,
have a strong incentive to bring in as many other potential
defendants as possible. In the process of splitting liability among
multiple parties, two key issues about the parties in the
apportionment arise. First, for which types of tortious conduct can
liability be apportioned—negligent conduct, strict liability,
intentional torts?42 Second, to which types of actors—employers,
other immune parties,
885
nonparties—can apportionment percentages be assigned?43

When the parties to be included in the process have been
determined, another issue is the standard that the jury should use
for apportioning damages, and the standard of review that
appellate courts should apply. Finally, several liability
jurisdictions are called on to decide in what circumstances
exceptions to the general rule of several liability rule are called for,
either by statute or by common law.
Joint and several liability in several liability systems—statutes.
Many exceptions to several liability may be expressly created by
state statute. Although some states abolished joint and several
liability without any explicit exception or qualification,44 other
statutes provide specific exceptions45 and may retain joint and
several liability for tortfeasors whose liability is vicarious and
those who act in concert.46 Some statutes retain joint and several
liability in certain types of cases when the plaintiff herself is not at
fault.47 In addition, the abolition statute may implicitly retain joint
and several liability for some torts besides personal injury by
defining its scope to include only injury, property damage, and
death actions, thus leaving the joint and several liability rules
intact for economic torts.48 Moreover, the state statutes do not
touch federal contribution rights such as those under
environmental statutes.49
Joint and several liability in several liability systems—common
law. Common law exceptions also may be called for in certain
circumstances as well. For example, the Restatement recommends
that courts retain joint and several liability when the defendant is
an intentional tortfeasor or acting in concert.50 In addition, the
Restatement recommends that joint and several liability be
retained when the secondary issue of apportioning liability
between defendants may negate the tortfeasor’s primary liability.
For example, if a jury were permitted to assign vicarious liability
to an employer for negligent acts of an employee, but then
apportion liability between those two defendants
886
so that the negligent employee bore most of the liability, the

policy of vicarious liability would be defeated. The same concern
applies in the case of a tortfeasor liable for failure to protect the
plaintiff from the specific risk of an intentional tort.51 If, for
example, the jury finds a landowner negligent because the
landowner’s failure to repair a doorlock left the plaintiff vulnerable
to physical attack in the lobby, it would negate the landowner’s
liability to allow a jury to apportion liability between the
landowner and the assailant. A similar argument can be made
when the defendant is under a duty to protect the plaintiff from
another’s negligence.52
§ 35.5 General Effects of Adopting Several
Liability Systems
Comparative fault and several liability. Sometimes discussions
of several liability are cast as discussion about proportional
responsibility or apportionment. However, not all apportionments
have the same effects. Comparative fault systems call for
apportionment, but they do not necessarily abolish joint and
several liability. It is several liability—the abolition of joint and
several liability—that creates a radical change in the responsibility
of tortfeasors for their actions. Three distinct effects of
apportionment are shown in the illustrationsbelow.
Illustrations.
1) Apportionment between plaintiff and tortfeasor A. Plaintiff,
chargeable with 10% of the fault for her own damages, recovers
from defendant A, who is chargeable with 90% of the fault for
plaintiff’s damages. This form of apportionment holds plaintiff and
defendant accountable for their assigned fault shares.
2) Apportionment between defendant A and defendant B for
contribution only. Defendant A is chargeable with 60% of the fault
and defendant B with 40%. Under rules of joint and several
liability or vicarious liability, plaintiff can enforce her judgment for
all of her damages against either defendant A or B. The tortfeasor
who pays will be entitled to contribution (or, in special
circumstances, indemnity) against the other tortfeasor. This is an
apportionment, but it does not reduce the plaintiff’s recovery
except for plaintiff’s own fault, if any.
3) Apportionment between defendants A and B to reduce
plaintiff’s recovery. Defendant A is chargeable with 60% of the
fault, B with 40%. With no joint and several liability, plaintiff can
recover 60% of her damages from defendant A, 40% from defendant
B. This apportionment can deprive the plaintiff of compensation.
For example, if defendant A is insolvent and uninsured, plaintiff
will recover only 40% of her damages (from B). This is true even if
defendant B’s conduct, standing alone, would have caused all of
plaintiff’s damages.
Effects of apportionment. Statutes abolishing joint and several
liability have no effect on the apportionment in illustration (1), but
they abolish the kind of apportionment seen in illustration (2)—
apportionment that merely measures contribution rights. In
substituting several liability for the traditional joint and several
liability, these statutes create a situation in which a defendant’s
liability is reduced because others were also at fault in producing
injury.
887
Effect of several liability with two defendants. A routine effect of

adopting a several liability system can be illustrated by a case of
concurrent tortfeasors whose negligent acts cause a single injury,
as in the case of two automobile drivers who cause a collision that
injures the plaintiff. If one driver’s fault is rated at 10% and the
other’s at 90%, the plaintiff recovers 10% of her damages from the
one and 90% from the other.53 The same approach may apply to
manufacturers whose defective products, in conjunction with
another defendant’s negligence, cause some or all of the plaintiff’s
injury,54 and can be applied to some successive torts, as well. For
example, under the traditional rule, a tortfeasor who causes injury
is jointly and severally liable for any aggravation caused by a
negligent health care provider, but under the several liability
regime, the initial tortfeasor is liable only for his comparative fault
share.55 In all such cases, as indicated in the table, if one tortfeasor
is immune or uninsured and insolvent, the plaintiff will not be
fully compensated. The uninsured tortfeasor will not be
appropriately deterred, of course—such tortfeasors seldom are. The
tortfeasor who pays only his “proportionate share,” say 10% in the
first example above, however, may be under-deterred in spite of the
language of proportionality.56 That is so because his liability is
reduced based not on his own conduct or the harm that he caused,
but because another person (uninsured) was also negligent.
Effects with multiple defendants. A more dramatic effect of
several liability and comparative apportionment rules is that if
more people were at fault, it is likely that the defendant’s
comparative share will be less. That is of no great consequence if
the plaintiff can identify, sue, and collect from each of the many
tortfeasors. However, if the fault of, say, an immune tortfeasor is to
be weighed in determining the remaining defendant’s comparative
share, the plaintiff will collect less from the defendant and nothing
at all from the immune tortfeasor. This is sometimes referred to as
the “tortfest” critique of several liability.57 These effects may be
magnified by some statutes that cap damages.58 So defendants
have an interest in asserting that all fault must be considered,
including the fault of nonparties, the fault of insolvent and
immune tortfeasors, and the fault of intentional tortfeasors.
Plaintiffs wish to argue that in weighing the comparative
significance of the defendant’s fault, the court should consider only
the fault of parties and persons against whom suit is possible.
888
B. PERSONS AND CONDUCT SUBJECT TO

APPORTIONMENT
Issue and strategy. In the apportionment process, courts must
decide whether juries should apportion fault to persons who are
not joined as parties, perhaps because they cannot be found or
because they are insolvent. Courts must also determine whether
fault should be apportioned to persons who are in some sense at
fault but who are not liable because of a formally recognized
immunity or otherwise.59 Strategically, the defendant’s interest in
a several liability system is to assert the negligence of many other
persons regardless of immunity. That is because all liabilities are
comparative, not absolute. When fault is attributed to other
tortfeasors, that attribution reduces the fault that can be
attributed to the defendant. The plaintiff’s interest, in contrast, is
to assert that nonparties and persons who are immune are not in
fact at fault.60
Only parties’ fault compared. Statutes may answer at least
some of these questions by limiting the comparison of the
negligence to “parties” or “defendants.”61 Sometimes statutes
expressly state that the negligence of non-parties is definitely not
to be compared.62 This approach has been supported on the ground
that, where joint and several liability is abolished, comparing the
fault of non-parties forces the plaintiff to join large numbers of
defendants whose liability is doubtful, lest the trier conclude that
not all of the negligence is attributable to joined parties.63 Another
variation is a statute construed to compare negligence only of the
parties and immune persons.64 Similarly, the negligence of a
settling party may be excluded in some jurisdictions.65 The 2002
Uniform Act disregards the fault of all nonparties except released
persons.66 When nonparty fault cannot be compared, it may still be
possible for the defendant to assert that some divisible portion of
the plaintiff’s injury was caused by a third party and not
889
by the defendant, thus reducing the defendant’s liability by

causal rather than by a fault apportionment.67
Non-parties’ fault compared. A different rule, by express
statutory requirement,68 or by judicial construction,69 is that the
trier is to compare all of the fault that is a proximate cause of the
harm, whether it is the fault of parties or not. Statutes may also
provide specially for considering and comparing the fault of
settling tortfeasors.70 With the exception of an immune tortfeasor,
most courts in several liability systems appear to consider the fault
of any tortfeasor, whether or not joined as a party.71
Relevant non-parties. However, even in jurisdictions that allow
the trier to compare the negligence of nonparties, included are only
those nonparties the plaintiff has a legal right to sue.72
Presumably the nonparty must indeed be, prima facie, a tortfeasor
who owes a duty to the plaintiff and breached it with proximately
resulting harm, and several cases have expressly so held.73
Similarly, where there is insufficient evidence to put the issue of
the negligence of an immune party to the jury, the party may not
be included in the apportionment.74 Other requirements, such as
timely notice of the named nonparty at fault may also be
required.75 At least one court has held a legislature’s nonparty-
fault provision unconstitutional.76
Third persons who are legally or practically immune. In many
situations, a person who might be considered “at fault” in causing
harm is formally or practically immune
890
from tort liability. From the plaintiff’s point of view, that is of

no concern in a joint and several liability system if other
tortfeasors are solvent. However, where the rule of joint and
several liability has been abolished and each defendant is liable
only for his comparative fault share, plaintiffs stand to lose
significantly if an immune actor’s fault is considered, for it will
reduce the amount of fault that can be assigned to the defendant
and hence will usually reduce the defendant’s liability.
Employers. The issue most often arises in the case law in terms
of employers. Employers who provide workers’ compensation
benefits to employees are generally immune to tort liability, so
they are not liable in tort even if they negligently injure an
employee. The injured employee is still free to sue others, such as
product manufacturers who contribute to her harm. The question
is whether the fault of such a defendant should be judged in
comparison to the fault of the immune employer or whether the
fault of the employer should be ignored. The fault of the product
manufacturer or other defendant may be relatively small in
comparison to that of the employer, but relatively large (or total) if
the employer’s negligence cannot be considered. Where liability is
several only, this issue can be critical. The Uniform Act treats the
employer who pays workers’ compensation and who is immune
under workers’ compensation laws as a released person, counting
the employer’s responsibility in the total and thus reducing the
share apportioned to others.77 Some states have taken this
position, holding that the fault of an employer who is immune from
liability under workers’ compensation laws, must be considered in
assessing the fault of the defendant,78 with the expected result
that defendant’s percentage share of fault will be less than it would
be if only the defendant’s fault were considered. However, other
jurisdictions oppose apportionment of liability to the immune
employer.79
Other immune parties. In other instances, courts may reach the
same result with when a defendant is immune for other reasons.80
A few courts, most notably the Supreme Court of Iowa, have held
that the immune defendant’s fault is to be ignored not only in the
case of an employer immune under workers’ compensation
statutes81 but also in the case of other immunities as well.82 The
Iowa court said that, to prevent “fault siphoning”,
891
the negligence of a nonparty is not to be considered if the

plaintiff “has no possibility of obtaining an enforceable judgment”
against him.83
§ 35.7 Types of Actionable Conduct Subject to
Apportionment
Comparative responsibility in negligence cases. A significant
issue in comparative responsibility for the last few decades has
been the type of actionable conduct that can be compared in
apportionment of liability systems. The negligent conduct of
multiple actors—whether defendants or plaintiffs—is widely
accepted by jurisdictions as appropriate action for comparison.
More controversies arise about causes of action other than
negligence.
Comparative responsibility in strict liability cases. When one or
more of the tortfeasors is strictly liable, it is literally not possible to
compare fault.84 Moreover, concerns have been raised that strict
liability—negligence comparisons undermine the policy reasons for
imposing strict liability.85 Yet many states have included strict
liability claims in apportionment systems.86 In these states,
responsibility is allocated between strictly liable and negligent
defendants in much the same way that states allocate
responsibility between negligent defendants so that, for example,
one defendant might be chargeable with 80% of the responsibility
while the other is chargeable with only 20%.87 Sometimes it is said
that this approach must be comparative causation. The
Restatement of Apportionment prefers the term “comparative
responsibility.”88 Use of the term “comparative responsibility”
typically suggests that a jurisdiction’s comparisons include at least
one form of actionable conduct in addition to negligence, such as
strict liability.
Comparative responsibility in cases of reckless or intentional
torts. The most controversial question concerning the types of
tortious conduct to be considered in apportionment systems is
whether one defendant’s intentional tortious activity can and
should be compared with another defendant’s negligence.89 Most
jurisdictions do not
892
make such comparisons.90 However, the number of states that

apportion responsibility between intentional and negligent
tortfeasor defendants has grown significantly.91 Similar issues
arise with respect to reckless92 conduct.
Which causes of action to include as a policy decision.
Interpretation of state statutes plays an important role in these
divisions as some statutes specifically include or exclude
intentional torts from comparative apportionment systems.
However, when the issue is a question of common law analysis,
courts are quick to rely on causation or coherence arguments, but
these arguments are a red herring. To be in the apportionment at
all, a defendant’s actionable conduct must have been a cause of the
plaintiff’s full harm.93 Moreover, excluding intentional torts in
apportionment creates one kind of incoherence—between
defendants who have a negligent tortfeasor codefendant and those
who have an intentional tortfeasor codefendant—while including
them creates another—between plaintiffs exposed to risks of a
negligent and an intentional tortfeasor as opposed to two forms of
negligent harms or a negligent and a nonnegligent harm.94
Instead, policy issues concerning the effects of apportionment are
critical in this context. Thus, while the Restatement of
Apportionment adopted apportionment for all bases of liability
including intentional torts, it did so only after acknowledging that
“intentional torts present special problems of apportionment,” and
fashioning special rules to address the inclusion of intentional
torts.95 Unfortunately courts that include intentional torts in
apportionment of liability systems have not always recognized
these special issues or rules.
Contexts in which intentional-negligent comparisons arise.
Neither are courts, advocates and commentators always careful to
differentiate the context in which the intentional-negligent fault
comparison question arises. Intentional-negligent fault
comparisons can be applied in at least three quite different
apportionment contexts with potentially quite different impacts:
(1) The plaintiff is an intentional tortfeasor injured by the
negligent defendant.96 (2) The defendant is an intentional
tortfeasor and the plaintiff is merely negligent to himself or others.
(3) One of two defendants is negligent, the other is intentional.
Subcategories of this last category might include (a) defendants
acting independently but causing a single indivisible injury and (b)
a negligent defendant who creates a risk of an intentional tort by
another.
Negligent defendant and intentional tortfeasor defendant
comparison as the paradigm context. The difference in the various
contexts counsels for caution in making a category-wide rule that
always or never applies to intentional-negligent fault comparisons.
When courts say they compare negligent and intentional torts they
are typically talking about comparing the negligent and intentional
conduct of two
893
defendants. Indeed, most of the cases that permit comparisons
involve a comparison of one defendant’s negligence with another
defendant’s intentional wrongdoing.97 Courts frequently do not
allow comparisons of intentional and negligent conduct when an
intentional tortfeasor is acting as the plaintiff and suing a
negligent defendant.98 Similarly, courts have taken a much
narrower view of the comparisons when an intentional tortfeasor
defendant asserts the comparative negligence of a plaintiff.99 Of
course, most jurisdictions do not compare even the negligent and
intentional torts of defendants. And when courts do, it may turn
out that intentional torts should be weighed on the comparative
responsibility scale only in some case patterns but not others.100
C. STANDARDS
Standards for assigning responsibility. Once courts have
determined which parties and which causes of action should be
included in apportionment percentages, they must also determine
by what metrics percentage comparisons are assigned and
reviewed. In traditional comparative fault systems, the degree of
fault attributable to the various parties is the item to be compared.
However, there is no accepted metric for comparing intentional
torts, recklessness and negligent torts.101 The American Law
Institute has called the endeavor “impossible in theory.”102 And
yet, the Restatement and many jurisdictions now call on juries to
make these comparisons.
Restatement factors. The factors listed by the Restatement as
relevant to assigning shares of responsibility are: “the nature of the
person’s risk-creating conduct, including any awareness or
indifference with respect to the risks created by the conduct and
any intent with respect to the harm created by the conduct,” and
“the strength of the causal connection between the person’s risk-
creating conduct and the harm.”103 These factors provide little
guidance about how to compare and apportion. But the difficulty of
defining the standard is perhaps eased by the treatment of the
jury’s apportionment as a question
894
of fact.104 Under that formulation, a jury’s apportionment is

entitled to deference unless it is clearly erroneous105—a very
lenient standard.106
Apportioning more responsibility to a negligent tortfeasor than
to an intentional tortfeasor. Still, there are decisions that pose a
challenge even to that standard. Perhaps the most difficult
apportionment cases are those that allocate a greater share of
responsibility to a negligent tortfeasor than to a reckless or
intentional tortfeasor.107 One particularly interesting case that fits
this pattern is the 1993 World Trade Center Bombing Litigation.
In that case, the jury apportioned 32% of the total responsibility in
the case to the terrorists who deliberately planted a bomb in the
building’s garage, and 68% to the Port Authority of New York and
New Jersey which negligently failed to take recommended security
precautions to thwart a potential car bomb.108 Although the
allocation seems surprising, the apportionment was upheld on
appeal on the basis that the bombing “had actually been foreseen,”
that the risks were “dire,” the cost of precaution “inconsequential,”
and the decisions not to minimize the risks were “deliberate” ones
made by “top management.”109 Moreover, the court found that the
intentional wrongdoing “was not simply concurrent with the
negligence, but to an unseemly degree flowed from the negligence
and was determined by it”—an analysis akin to a determination
that the negligent tortfeasor risked the intentional harm.110
However, the New York Supreme Court ultimatel ruled that the
Port Authority had no duty, such that the apportionment question
was moot.111
Comparative responsibility versus comparative fault. Many
other courts have also upheld apportionments that assign a greater
responsibility share to the negligent defendant. Courts that take
this view often remark that comparative responsibility does not
simply compare wrongfulness or reprehensibility.112 Along with
that view, courts can also think of the apportionment of civil
responsibility as only one part of the system of legal responsibility,
which includes criminal liability as well. Given these attitudes,
courts may conclude that the traditional norms of accountability
permit apportionment of a greater share of the civil responsibility
to negligent tortfeasors than to intentional tortfeasors.113
Effect of culpability-based apportionments if intentional
tortfeasors are included. Some courts have overturned
apportionments that assign greater responsibility to negligent than
intentional tortfeasors when the process was viewed as one that
primarily
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compares the parties’ relative culpability.114 Because many

intentional tortfeasors are judgment proof, if an intentional
tortfeasor must be assigned more than 50% of the total
responsibility, a plaintiff will rarely be able to recover more than
50% of her damages in a case involving a negligent and an
intentional tortfeasor. Consequently, in jurisdictions that have
several liability systems and compare intentional and negligent
fault, courts must consider an exception for negligent defendants
who negligently risk another tortfeasor’s intentional harm if they
do not want to erase liability in this area.115
Adjustments on appeal. When an appellate court finds that
some portion of an apportionment must be overturned on appeal,
difficult issues arise with respect to the need for a new trial. At
least one court has dealt with this situation by ruling that “after an
appellate court finds a ‘clearly wrong’ apportionment of fault, it
should adjust the award, but only to the extent of lowering or
raising it to the highest or lowest point respectively which is
reasonably within the trier of fact’s discretion.”116
D. SPECIAL CASES FOR APPORTIONMENT
§ 35.9 Defendants Who Negligently Risk Another
Tortfeasor’s Intentional Harm
Negligently creating a risk of an intentional tort. Should the
fault of negligent tortfeasors be compared with the fault of
intentional tortfeasors? That issue has already been addressed.117
What remains is a subset of that problem that occurs when a
negligent defendant creates a risk that a second defendant will
commit an intentional tort. For example, if A leaves dynamite
where children can steal it, the risk is that they will do so and
cause injury to others. Older decisions might have disposed of such
a case by concluding that A was not liable because the children’s
act constituted a superseding cause.118 Contemporary cases tend to
say that defendants cannot escape liability for foreseeable risks.
Consequently, in a joint and several liability regime today, both A
and the children would be liable in many such cases. Perhaps the
most notable version of the problem occurs when a landlord or a
business fails to use reasonable care to prevent a robbery or a rape
of a customer or tenant or when a police officer, owing a citizen a
duty of care, fails to protect her from attack.
The concern about comparisons. In the joint and several liability
system, the careless handler of dynamite, the business, the
landlord, or the police officer would be liable for the plaintiff’s
damages resulting from the explosion, the robbery or the rape.
When joint and several liability has been abolished, the question is
whether negligent actors like the landlord who refuses to repair a
broken lock can escape full liability when a rapist takes advantage
of the disrepair to rape the plaintiff in her unprotected apartment.
The issue is critical because the negligence of the landlord, no
matter how great, will often be perceived as tiny in comparison to
the fault of the rapist, so if a rule of several liability operates, the
landlord may be liable for, say, 1% of the damages, the rest being
the responsibility of the insolvent rapist. The result is that the
plaintiff will
896
recover virtually nothing. Given the poor prospects of

substantial recovery, lawyers for the plaintiff may conclude that it
is not economically worth it to sue. The result in that case is both
under-deterrence and under-compensation. There are variations on
this model set of facts that raise the same essential issue whenever
a criminal is one of the tortfeasors.119 The apportionment question
between defendants is quite distinct from the question whether the
plaintiff’s own comparative negligence should reduce her recovery
against an intentional wrongdoer like the rapist.120 Even so, if
joint and several liability is abolished, apportionment between
defendants will routinely mean a severe reduction in the plaintiff’s
recovery.
Divided authority. Some cases hold or imply that the negligent
actor’s fault is compared with that of the intentional actor. Given
that joint and several liability has been abolished, the negligent
actor is thus only severally liable for his apportioned share.121
Other authority refuses to permit the negligent tortfeasor to reduce
his liability by comparing the fault of the intentional tortfeasor
whose acts he risked.122 In this view, the negligent tortfeasor is
entirely liable to the plaintiff123 though he might conceivably
obtain contribution or indemnity against the intentional tortfeasor.
Washington appears to have come up with a unique rule that
requires causal apportionment rather than fault apportionment
between intentional and negligent tortfeasors, although it is not
clear at this juncture how such a rule can work where indivisible
harm results.124
Modes of full liability in several liability systems. Good policy
arguments favor full joint and several liability in cases of those
who negligently facilitate torts of others. The landlord who
negligently facilitates access of rapists to his tenants’ apartments
should have an indemnity action against the rapist, but the risk of
the rapist’s insolvency should fall upon the negligent landlord, not
upon the innocent plaintiff. Can such policy be effectuated in states
that abolish joint and several liability? At least four lines of
authority and legal thought may be invoked to hold the landlord
and other facilitators liable for all or a substantial part of the
plaintiff’s damages (subject always to his right of contribution
against the criminal actor).
897
Specific exceptions. The Restatement creates a specific exception

for this circumstance. If the defendant owes a specific duty to
protect the plaintiff from an intentional tortfeasor, the defendant
remains jointly and severally liable.125 The Uniform Act similarly
retains joint and several liability for one who fails to protect
another from causing intentional harm.126
Not comparing intentional and negligent conduct when the
negligent defendant risked the intentional tort. Second, where the
statute does not compel a different answer, courts could refuse to
compare intentional harm with negligence.127 That was the
traditional practice on the distinct issue of contributory negligence;
the plaintiff was not barred by her contributory fault when she
sued an intentional tortfeasor. As already indicated, however, a
number of courts now hold that, at least in some situations, the
fault of a negligent tortfeasor can be compared to that of an
intentional tortfeasor.128 In the absence of an exception, juries
would compare the negligence of the landlord with the intentional
crime of rape and on this comparison might find the landlord to be
comparatively innocent, so that the landlord’s liability would be
minuscule and the plaintiff, unlikely to find, identify, and recover
from the rapist, would be severely under-compensated.
Assigning responsibility not culpability. Third, it can be argued
that some statutes and the Restatement of Apportionment envision
an assignment of responsibility rather than a comparison of fault.
In that system of thought, even if negligence counts as less fault
than an intentional tort, a jury can assign greater civil
responsibility to the negligent tortfeasor than to the intentional
one.129 One rational reason for such a view is that when the
negligent actor creates a risk of an intentional tort, especially
when the foreseeable tortfeasor is likely to escape or to have no
assets, his negligence encompasses that tort. Arguably, then, one
who facilitates an intentional tort of another should be treated like
an employer of an independent contractor who is under a
nondelegable duty,130 and held jointly and severally liable under
the usual rule that persons who are vicariously liable remain
jointly and severally liable even under the statutes that otherwise
abolish joint and several liability.131 It is too soon to know how
courts and juries will handle this argument, but several courts
have already recognized that a
898
negligent tortfeasor who risks an intentional tort by another

may be assigned more significant responsibility than an
intentional tortfeasor.132
A broad view of action in concert. Fourth, tortfeasors who create
a risk of intentional harm to the plaintiff might be counted as
tortfeasors acting in concert or aiding and abetting the intentional
tortfeasor. Liability of one who acts in concert is at least partly
vicarious. In concerted action cases, joint liability presumably
remains even after several liability statutes.133 If so, the landlord
acting in concert with the rapists would be liable for the entire
damages. Whether the landlord’s negligence can count as concerted
action, however, has yet to be adjudicated.
Dealing with the problem by jury instructions. In addition to
these four potential rules of law, it is possible to deal with the
problem in some degree by instructing the jury to determine
apportionment by considering the importance of the facilitator’s
duty.134
§ 35.10 Defendants Who Are Under a Duty to
Protect Plaintiff from Another’s Negligence
When the defendant’s negligence risks the negligence of another.
The most dramatic concern where joint and several liability has
been abolished is the case in which the defendant creates a risk of
intentional harm by another, particularly if degrees of
wrongfulness are a part of the responsibility apportionment. But
the case in which the defendant creates a risk of negligent harm by
another is actually much the same, provided the defendant is
under a duty to protect against such harm. For example, if the law
assigns an alcohol provider the duty to withhold alcohol from an
obviously drunken customer, the major point is to protect citizens
who may be injured as a result of the drinker’s drunken driving.
On much the same rationale that applies in a case in which the
landlord would be liable for negligent security that permits a rape,
it can be said that the alcohol provider should also be liable for
negligent provision of alcohol to a driver whose driving devastates
a family.
Differing views. In the case of a negligent alcohol provider,
courts are divided about the issue of several liability
apportionment between defendants that reduces the plaintiff’s
recovery. Some opinions have approved several liability
apportionment,135 sometimes even when the opinion recognizes
that apportionment dilutes the duty and
899
incentive of the facilitator.136 Although the statutory system of

several or proportionate liability was held to apply in apportioning
ultimate responsibility between the provider and the intoxicated
patron, the provider’s liability to the victims was different. The
court thought that liability was partly based on imputed negligence
and thus analogous to vicarious liability, as to which the several
liability system changed nothing. Consequently, the victim could
recover all damages from the provider, who in turn was left to
recover, if he could, from the drinker himself.137 Where the statute
imposes liability upon the alcohol provider without requiring fault
or causation on his part, the claim that liability is vicarious and
hence that liability is joint and several is particularly strong.138
Examples of negligence that facilitates other torts. Those who
negligently provide alcohol to intoxicated or minor drinkers are
among the tortfeasors who facilitate the torts of others.139 In this
same category are employers who negligently hire, train, or retain
dangerous employees,140 and individuals who negligently entrust
instrumentalities to persons likely to use them in a harmful
way.141 Comparison of fault and apportionment of responsibility in
such cases is not easy to rationalize, since the fault of the direct
actor is encompassed in the fault of the facilitator.142
Facilitator fault or vicarious liability? Where joint and several
liability has been abolished, courts struggling with this problem
have sometimes sought to resolve it by determining whether the
facilitator’s liability is purely based on his own fault or, on the
contrary, it is based on a kind of vicarious liability, with the
negligence of the actor directly causing harm imputed to the
facilitator. When courts conclude that the facilitator’s liability is
rooted in his personal fault, they require apportionment, meaning
that the facilitator is liable only for his comparative share.143
Apportionment may also be required without reference to the
distinction between personal fault and vicarious liability.144 But
other courts have rejected apportionment in this setting, retaining
the
900
traditional joint and several liability,145 sometimes finding that

the facilitator’s liability is rooted, at least by analogy, in vicarious
liability rather than personal fault and at least implicitly deciding
that apportionment between a tortfeasor and one vicariously liable
is inappropriate.146
A policy perspective. The vicarious liability/personal fault
distinction may not help to resolve the issue, partly because the
policy and statutory issues are not necessarily reached through
that distinction and partly because the liability of the facilitating
tortfeasor may be viewed as partaking of both personal fault and
imputed negligence.147 The facilitator, such as a negligent
entrustor, is not liable unless he himself is negligent; in this way,
his liability seems grounded in personal fault, not imputed
negligence. On the other hand, the facilitator is not liable even if
he is at fault unless the entrustee is negligent; in this way, his
liability may bear some comparison to imputed negligence. If the
statute leaves the court free on this issue, full liability of
facilitating tortfeasors, coupled with a right of contribution or
indemnity, seems preferable in part because of the lack of logical or
just basis for comparing the encompassing fault of the facilitator
with the fault the person whose negligence is the more immediate
cause.
Guideline instructions. Where courts feel required by statute to
limit each defendant’s responsibility to his proportionate share of
fault, a pragmatic compromise may still be available in the form of
guidelines to the jury that require it to consider broad policy issues
favoring heavy responsibility on the part of the facilitator. This
approach was taken in a New Jersey case, Frugis v. Bracigliano.148
In that case, an elementary school principal sexually abused
students. A victim sued the school board as well as the principal,
claiming that the school board negligently hired or retained the
principal. The proof was powerful that the school board was
negligent. However, the court construed the governing statute to
require apportionment of fault between the board and the
principal. At the same time, the court was concerned that
apportionment might leave the board with such a small share of
responsibility that its duty would be diluted and it would not be
appropriately encouraged to behave with care for the students. To
deal with that, the court specifically required instructions that told
the jury to apportion responsibility in light of the board-employer’s
heightened duty and other similar considerations.149 Although
Frugis involved a negligent employer who facilitated an intentional
tort, the principle behind guiding instructions seems applicable to
cases involving defendants who facilitate negligent torts as well,
albeit with adjustment in the instruction to recognize that not
every facilitator has the heavy responsibility imposed on school
boards. The guideline instruction route has some appeal, but it
could take some
901
plaintiffs into dangerous territory if the actor directly causing

harm is fully solvent but the facilitator is not.
E. OTHER APPORTIONMENT SYSTEMS
§ 35.11 Joint and Several Liability with
Reallocation
Reapportionment of uncollectible shares. Some jurisdictions find
joint and several liability unsatisfying because the system imposes
on one defendant the complete burden of the insolvency of another.
But the several liability system is no more satisfying because it
imposes that burden of insolvency entirely on a plaintiff, who may
be completely without fault in occasioning the harm. A compromise
provision, and one adopted in the Uniform Apportionment of Tort
Responsibility Act passed by the National Commissioners on
Uniform State Laws, is a system of liability that permits liability
for uncollectible shares to be reapportioned among the plaintiff and
any other defendants on the basis of the parties’ relative
responsibility.
An example. Consider this scenario. Suppose the trier finds that
the plaintiff suffered $100,000 in damages and was chargeable
with 10% of all the negligence, thus reducing her judgment to
$90,000 under comparative negligence rules. The jury also finds
that A was chargeable with 60% of the fault and B with 30%.
Under a joint and several liability system, if the plaintiff enforced
her judgment entirely against A, A would pay $90,000 but would
be entitled to $30,000 in contribution from B. As always with the
traditional joint and several liability system, A may get a judgment
for contribution from B but may not be able to collect it. If the
plaintiff was wholly without legal fault, this result would be sound,
for it would require the negligent tortfeasor rather than the
innocent plaintiff to bear the risks of another tortfeasor’s
insolvency. However, when the plaintiff herself is also at fault, it
seems more logical to require that the plaintiff and tortfeasor A
share the risk of B’s insolvency in proportion to their respective
fault shares.150 In a jurisdiction with reapportionment for an
uncollectible share, since A’s negligence was 60% of the total and
the plaintiff’s 10%, they would presumably absorb B’s share of
liability between them in the same proportion, six to one. The same
figure results if you use that ratio for the $100,000 damages figure,
ignoring B altogether. A’s liability would then by 6/7 of the
$100,000 and the plaintiff would absorb 1/7 of that sum.
The argument in favor of reallocation. This outcome is
attractive because neither the plaintiff nor defendant A will bear
the entire insolvency, nor will the plaintiff’s recovery be in
proportion to one defendant’s responsibility relative to another’s.
Instead the plaintiff’s recovery for the uncollectible share is in
proportion to the defendant’s responsibility relative to the
plaintiff’s. With its greater claim of fairness to both plaintiffs and
defendants, scholars from other countries have found the doctrine
appealing.151 The approach is quite new and is typically adopted
by statute.152 It may become increasingly popular given the
theoretical appeal of the framework and the
902
influence of significant groups who support it including the

National Commissioners on Uniform State Laws.
§ 35.12 Hybrid Systems: Joint and Several Liability
Based on Threshold Percentages or Type of
Damages
Types of hybrid systems. In truth, most jurisdictions’ systems
could be defined as hybrid systems—state statutes and common
law typically provide for some blend of several and joint and
several liability rules.153 However, the Restatement of
Apportionment highlights two particular forms of hybrid systems.
In one, joint and several liability is retained for tortfeasors whose
comparative responsibility share is above a set percentage, but
denied if the tortfeasor’s comparative responsibility share is below
that percentage.154 In the other, the availability of joint and
several liability hinges on the type of damages sought. Typically,
joint and several liability applies to plaintiff’s economic damages,
but several liability applies to the defendant’s share of
noneconomic damages.155
Threshold percentages. In jurisdictions that adopt a threshold
percentage for joint and several liability, the purpose is generally
to retain the joint and several liability of more significant actors,
but deny it in the case of minimally responsible defendants. To be
sure, there are problems with this approach and to some extent the
actual legal threshold selected is arbitrary.156 But a number of
jurisdictions have embraced this sort of compromise, adopting
threshold percentages ranging from 10% to 60%, with 50% as a
typical threshold.157 In some states the threshold is whether the
defendant’s share of the responsibility is greater than the
plaintiff’s.158
Types of damage. In jurisdictions that determine joint and
several liability based on the type of damages for which liability is
sought, an underlying idea is that replacement for economic
damages is more important than replacement for intangible losses
such as pain and suffering, emotional distress, disfigurement, loss
of consortium and the like.159 The split may also reflect a sense
that noneconomic losses are more difficult to value and thus more
likely to represent a windfall to the plaintiff rather than an
appropriate level of compensation.160 Criticism has centered on the
way in which these systems 1) devalue losses that are substantial
yet noneconomic, such as with the loss of a plaintiff’s reproductive
capacity or the loss of plaintiff’s child,161 2) impact women162 and
903
3) undermine deterrence.163 One such law has been held

unconstitutional.164 Nevertheless, a number of other jurisdictions
apply this approach by statute.165 A variation applies joint and
several liability only to a specified percentage of the damages
award instead of to economic damages.166
Type of damage and type of tort. New York’s statute abolishes
joint and several liability for noneconomic damages as to relatively
low-fault defendants. This has been held to permit a 50–50
apportionment between a negligent landlord and the tenant’s
attacker.167 However, the statute goes on to provide, in effect, that
the negligent tortfeasor loses this protection when he is liable for
any tort requiring proof of intent or for recklessness.168 This is a
recognition that some negligent torts are quite seriously wrongful
even if, on a comparative basis, only a small percentage of fault can
be attributed to those negligent wrongdoers. In Lubecki v. City of
New York,169 a bank robber took innocent bystander hostage. He
was quickly surrounded by as many as thirty police officers. He
held the hostage in front of him. Allegedly in violation of rules, one
officer fired, then others followed suit. The hostage was killed. The
court held that the plaintiff could amend the pleadings to assert
the recklessness exception to the several liability statute.
________________________________
1 When the negligence of various parties was being compared, this
was often referred to as comparative “fault.” However, now that some
jurisdictions compare conduct such as strict liability as well, the term
comparative “responsibility” is often used. The term “fault or responsibility
based apportionment” is used to denote apportionment that includes the
fault or legal responsibility of the party as at least one factor in the
apportionment. Restatement (Third) of Torts: Apportionment of Liability §
1 (2000).
2 Id. § 26; Restatement (Third) of Torts: Products Liability § 16
(1998).
3 Restatement (Third) of Torts: Apportionment of Liability § 26
(2000).
4 For a discussion of several forms of causal apportionment, see
Chapter 14. For a discussion of causal apportionment in products liability,
see Dobbs, Hayden & Bublick, The Law of Torts § 471 (2d ed. 2011 &
Supp.).
cmts. f, h, k (2000).
6 On similar facts, but when no evidence permitted causal
apportionment, the court upheld a jury award that apportioned 50% of the
fault to the defendant as supplier of the asbestos. Owens Corning
Fiberglass Corp. v. Parrish, 58 S.W.3d 467 (Ky. 2001).
7 For example, because CERCLA maintains joint and several
liability, only causal apportionment is appropriate to that context. See
Burlington N. & Santa Fe Ry. Co. v. U.S., 556 U.S. 599, 129 S.Ct. 1870
(2009) (“Equitable considerations play no role in the apportionment
analysis; rather, apportionment is proper only when the evidence supports
the divisibility of the damages jointly caused by the [potentially
responsible parties]”).
8 Restatement (Third) of Torts: Apportionment of Liability §§ 17,
A18-E21 (2000); Edward J. Kionka, Recent Developments in the Law of
Joint and Several Liability and the Impact of Plaintiff’s Employer’s Fault,
54 La. L. Rev. 1619 (1994). One English commentator has called the
tracked sections of the Restatement of Apportionment “a trackless morass,
Dismal Swamp, and Desolation of Smaug.” Tony Weir, All-or-nothing?, 78
Tul. L. Rev. 511, 534 n.63 (2004).
rptr. note (2000) (noting states that employ multiple systems).
tables at 151 to 159 (2000).
11 Piner v. Superior Court, 192 Ariz. 182, 962 P.2d 909 (1998); Gross
v. Lyons, 763 So. 2d 276 (Fla. 2000). Shifting the burden to the defendants
to show apportionment in indivisible injury cases, as in Yount v. Deibert,
147 P.3d 1065 (Kan. 2006), might lead to a similar analysis. This may lead
to quite complex calculations if there are multiple parties in two or more
separate injuries that lead to an indivisible result.
12 See, e.g., Hutcherson v. City of Phoenix, 961 P.2d 449 (Ariz. 1998)
(holding that plain meaning of the statutory term “fault” included
intentional torts); Couch v. Red Roof Inns, Inc., 291 Ga. 359, 729 S.E.2d
378 (2012) (statute calls for the allocation of damages among those at
“fault”; intentional assailant was partially at fault for purpose of
apportioning damages in premises liability case involving an attack on a
guest while staying at hotel).
13 See, e.g., Welch v. Southland Corp., 952 P.2d 162 (Wash. 1998)
(holding that unambiguous definition of “fault” does not include
intentional torts).
14 See Merryweather v. Nixan, 101 Eng. Rep. 1337 (1799) (reflecting
one tortfeasor’s payment of the entire liability).
15 See, e.g., William Prosser, Joint Torts and Several Liability, 25
Cal. L. Rev. 413 (1937); John Henry Wigmore, Joint-Tortfeasors and
Severance of Damages: Making the Innocent Party Suffer Without
Redress, 17 Ill. L. Rev. 458 (1923).
16 Restatement (Third) of Torts: Apportionment of Liability § 27A
(2000); John W. Wade, Should Joint and Several Liability of Multiple
Tortfeasors Be Abolished?, 10 Am. J. Trial Advoc. 193 (1986).
17 Complete satisfaction of the claim by one tortfeasor thus bars the
plaintiff’s claim against another tortfeasor. Underwood-Gary v. Mathews,
366 Md. 660, 785 A.2d 708 (2001).
18 See also Bridgestone/Firestone North America Tire, LLC v.
Naranjo, 206 Ariz. 447, 79 P.3d 1206 (Ct. App. 2003).
19 See Watts v. Smith, 375 Mich. 120, 134 N.W.2d 194 (1965).
20 E.g., Biercyznski v. Rogers, 239 A.2d 218 (Del. 1968). This
remains the rule today in a number of states. Smith v. Town of Greenwich,
899 A.2d 563 (Conn. App. Ct. 2006); Richards v. Badger Mut. Ins. Co., 309
Wis.2d 541, 749 N.W.2d 581 (2008); Restatement (Third) of Torts:
Apportionment of Liability § 24 (2000).
21 Restatement (Third) of Torts: Apportionment of Liability § 17 at
151–53 (2000).
22 Norfolk & W. Ry. v. Ayers, 538 U.S. 135, 123 S.Ct. 1210, 155
L.Ed.2d 261 (2003).
23 See § 35.4.
24 For a fuller explanation see Dobbs, Hayden & Bublick, The Law of
Torts §§ 489–91 (2d ed. 2011 & Supp.).
25 E.g., Cal. Civ. Proc. Code § 875; 740 Ill. Comp. Stat. § 100/3; Iowa
Code Ann. § 668.5; Mich. Stat. Ann. § 600.2925a; Unif. Apportionment of
Tort Responsibility Act § 7 (2002).
26 Hansen v. Anderson, Wilmarth & Van Der Maaten, 630 N.W.2d
818 (Iowa 2001); but see Restatement (Third) of Torts: Apportionment of
Liability § 23 cmt. 1 (2000).
27 See, e.g., American Motorcycle Ass’n v. Superior Court, 20 Cal.3d
578, 146 Cal. Rptr. 182, 578 P.2d 899 (1978); Rancho Niguel Ass’n v.
Ahmanson Devs., Inc., 86 Cal.App.4th 1135, 103 Cal.Rptr.2d 895 (2001).
California retains joint and several liability as well as contribution for
economic damages, see Cal. Civ. Code § 1431.2. However, liability for
noneconomic damages is now several only. Cal. Civ. Code § 1432. See also
Greyhound Lines, Inc. v. Cobb County, Ga., 681 F.2d 1327 (11th Cir. 1982)
(allowing contribution but rejecting the “indemnity” label). Traditional
indemnity, in contrast, is not a system for dividing responsibility but for
shifting it entirely to one of the tortfeasors.
28 E.g., Mass. Gen. L. Ann. ch. 231B § 1(a).
29 See Habco v. L & B Oilfield Serv., Inc., 138 P.3d 1162 (Wyo. 2006).
30 E.g., Tucson Elec. Power Co. v. Dooley-Jones & Assocs., Inc., 746
P.2d 510 (Ariz. Ct. App. 1987) (statute provided that persons performing
certain work in specified proximity to high voltage electrical lines were
required to notify power company and to indemnify power company if it is
held liable to others for injury; statutory terms, not common law, controls).
(2000).
32 See Aaron D. Twerski, The Joint Tortfeasor Legislative Revolt: A
Rational Response to the Critics, 22 U.C. Davis. L. Rev. 1125 (1989); but
see Richard Wright, Throwing Out the Baby with the Bathwater: A Reply
to Professor Twerski, 22 U.C. Davis L. Rev. 1147 (1989).
33 See, e.g., Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 289
S.E.2d 679 (1982).
34 See John W. Wade, Should Joint and Several Liability of Multiple
Tortfeasors Be Abolished?, 10 Am. J. Trial Advoc. 193 (1986); Richard W.
Wright, The Logic and Fairness of Joint and Several Liability, 23 Mem. St.
U. L. Rev. 45 (1992).
35 Id. at 59.
36 Tony Weir, All-or-Nothing?,78 Tul. L. Rev. 511 (2004).
37 Supporters of joint and several liability do not necessarily think
so. See Richard Wright, supra n.34 at 56–57.
38 See, e.g., Ariz. Rev. Stat. § 12–2506, upheld against constitutional
attack in State Farm Ins. Cos. v. Premier Manufactured Sys., Inc., 217
Ariz. 222, 172 P.3d 410 (2007); Kan. Stat. Ann., § 60–258a.
39 See § Dobbs, Hayden & Bublick, The Law of Torts § 489 (2d ed.
2011 & Supp.).
40 Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20, 8 A.L.R.3d 708
(1962).
41 But cf. Lyon v. Ranger III, 858 F.2d 22, 25 (1st Cir. 1988) (“We are
aware of no legal principle that requires a district court to reduce, perhaps
to inconsequential levels, such serious fault, simply because two (or three,
or thirty) colleagues also failed to take proper care.”).
42 See § 35.7.
43 See § 35.6.
44 Ky. Rev. Stat. § 411.182; 12 Vt. Stat. Ann. § 1036.
45 E.g., Fla. Stat. Ann. § 768.81 (pollution cases); Or. Rev. Stat. §
31.610 (environmental harm cases of various kinds).
46 Ariz. Rev. Stat. § 12–2506; N.Y. C.P.L.R. § 1602; Smith v. Town of
Greenwich, 899 A.2d 563 (Conn. App. 2006); Woods v. Cole, 181 Ill. 2d 512,
693 N.E.2d 333, 230 Ill. Dec. 204 (1998); Reilly v. Anderson, 727 N.W.2d
102 (Iowa 2006); Yount v. Deibert, 147 P.3d 1065 (Kan. 2006); Richards v.
Badger Mut. Ins. Co., 749 N.W.2d 581 (Wis. 2008); Unif. Apportionment of
Tort Responsibility Act § 6 (2002).
47 For example, unless the plaintiff is chargeable with at least equal
fault, Wisconsin retains joint and several liability in claims of strict
product liability. See Fuchsgruber v. Custom Accessories, Inc., 244 Wis. 2d
758, 628 N.W.2d 833 (2001).
48 E.g., Mich. Comp. L. Ann. § 600.6304. The Uniform Act, in
determining comparative fault of the plaintiff, applies in actions “seeking
damages for personal injury or harm to property based on negligence or
strict liability” and also to cases in which “the claimant may be subject to a
defense in whole or part based on contributory fault.” Unif. Apportionment
of Tort Responsibility Act § 3 (2002). In providing for the allocation of
responsibility to multiple tortfeasors, the Act applies in actions “to recover
damages for personal injury or harm to property involving the
responsibility of more than one party or a released person.” Id. § 4.
49 42 U.S.C.A. § 9607 creates liability of various parties for release of
hazardous substances, while 42 U.S.C.A. § 9613 authorizes contribution.
This is a system of joint and several liability. Niagara Mohawk Power
Corp. v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010); Cox v. City of
Dallas, 256 F.3d 281 (2001); North Am. Galvanizing & Coatings, Inc. v.
Lake River Corp., Inc., 2010 WL 2350588, at *4 (N.D. Ill., Jun 09, 2010)
(differentiating CERCLA contribution claims from state-law contribution
for state tort environmental damage claims). When evidence supports the
divisibility of damages, causal apportionment may be appropriate.
Burlington N. & Santa Fe Ry. Co. v. U.S., 556 U.S. 599, 129 S.Ct. 1870
(2009).
50 Reilly v. Anderson, 727 N.W.2d 102 (Iowa 2006) (joint and several
liability for concerted action applied even after adoption of state
comparative fault act); Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d
197 (2004) (joint and several liability of landowner for actions of assailant);
Restatement (Third) of Torts: Apportionment of Liability §§ 12, 15 (2000).
51 Smith v. Town of Greenwich, 899 A.2d 563 (Conn. App. Ct. 2006)
(joint and several liability of property owner for claim against snow
removal contractor assigned a nondelegable duty); Restatement (Third) of
Torts: Apportionment of Liability §§ 13, 14 (2000).
52 See § 35.10.
53 Lackman v. Rousselle, 257 Neb. 87, 596 N.W.2d 15 (1999); Staab
v. Diocese of St. Cloud, 853 N.W.2d 713 (Minn. 2014).
54 E.g., Restatement (Third) of Torts: Apportionment of Liability § 14
(2000); Restatement (Third) of Torts: Products Liability § 16(b) (1998).
55 See Henry v. Superior Court, 160 Cal.App.4th 440, 72 Cal.Rptr.3d
808 (2008) (several liability for noneconomic damages pursuant to statute);
Dumas v. State, 828 So.2d 530 (La. 2002); Haff v. Hettich, 593 N.W.2d 383
(N.D. 1999).
56 Mark M. Hager, What’s (Not!) In a Restatement? ALI Issue-
Dodging on Liability Apportionment, 33 Conn. L. Rev. 77 (2000) (arguing
that several liability will provide suboptimal deterrence); Lewis A.
Kornhauser & Richard L. Revesz, Sharing Damages Among Multiple
Tortfeasors, 98 Yale L.J. 831 (1989) (demonstrating that joint and several
liability rules are more likely to produce efficient results); William Landes
& Richard Posner, Joint and Multiple Tortfeasors: An Economic Analysis,
9 J. Leg. Stud. 517 (1980).
57 Richard W. Wright, The Logic and Fairness of Joint and Several
Liability, 23 Mem. St. U. L. Rev. 45, 74 (1992).
58 Especially where the cap is the total limit of recovery against the
whole group of defendants. See § 34.7.
59 Relatedly, crediting the nonsettling tortfeasor in the light of the
settling tortfeasor’s payment is considered with other apportionment
materials in Dobbs, Hayden & Bublick, The Law of Torts § 491 (2d ed.
2011 & Supp.).
60 Cf. Restatement (Third) of Torts: Apportionment of Liability § 19B
cmt. e (2000) (noting that sometimes “immunity” appears in reality to be a
case of no-negligence or no duty, in which case the joined defendant cannot
attribute part of the negligence to the “immune” person).
61 See Shantigar Found. v. Bear Mountain Builders, 441 Mass. 131,
804 N.E.2d 324 (2004) (construing statute to compare fault only of the
plaintiff and defendants, excluding the fault of a settling non-party
tortfeasor); Unif. Apportionment of Tort Responsibility Act (2002).
62 E.g., Conn. Gen. Stat. § 52–572h (negligence compared is that of
“parties” and “released persons,” but defendant may implead others not
originally joined); cf. Jefferson County Commonwealth Attorney’s Office v.
Kaplan, 65 S.W.3d 916 (Ky. 2001) (statute required apportionment only
among parties and settling tortfeasors).
63 See Donner v. Kearse, 234 Conn. 660, 662 A.2d 1269 (1995)
(“fostering marginal and costly litigation in our courts”).
64 Field v. Boyer Co., 952 P.2d 1078 (Utah. 1998).
65 See Ready v. United/Goedecke Servs., Inc., 232 Ill.2d 369, 328
Ill.Dec 836 (2008) (excluding settling tortfeasors from apportionment
percentages).
66 See Unif. Apportionment of Tort Responsibility Act, Preface,
Apportioning Tort Responsibility in This Act (2002); cf. Fuchsgruber v.
Custom Accessories, Inc., 244 Wis.2d 758, 628 N.W.2d 833 (2001).
67 Truman v. Montana Eleventh Judicial Dist. Ct., 315 Mont. 165, 68
P.3d 654 (2003) (under Montana law, a negligent defendant cannot reduce
his liability by fault of nonparties, but he can introduce evidence that a
divisible portion of the plaintiff’s injuries were caused by a nonparty).
68 Colo. Rev. Stat. Ann. § 13–21–111.5 (3)(b) permits the defendant
to give formal notice claiming that a nonparty is negligent within 90 days
of the suit’s commencement, presumably to permit the plaintiff to join that
person; Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905 (Ind.
2001) (by statute, defendant can assert fault of nonparty but has the
burden of proof).
69 See Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d
249 (Fla. 1995); Couch v. Red Roof Inns, Inc., 291 Ga. 359, 729 S.E.2d 378
(2012) (nonparty assailant had to be given a portion of the responsibility
where statute referred apportioning damages according to “fault” of
“tortfeasors”); Bode v. Clark Equipment Co., 719 P.2d 824 (Okla. 1986) (in
aggregating negligence of tortfeasors to compare with the plaintiff’s
negligence, trier must consider negligence of immune nonparty tortfeasors
as well as negligence of defendant); accord as to identified persons where
several liability prevails, Restatement (Third) of Torts: Apportionment of
Liability § 29B cmts. d & e (2000). Tennessee compares the negligence of
nonparties whom the plaintiff has the right to sue and join. Ridings v.
Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996).
70 Colo. Rev. Stat. Ann. § 13–21–111.5 (3)(b); Conn. Gen. Stat. § 52–
572h.
71 Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 32, 31 P.3d 806 (Ct.
App. 2001); Wells v. Tallahassee Mem’L Reg’l Med. Ctr. Inc., 659 So.2d
249 (Fla. 1995) (negligence of nonparty considered); Chianese v. Meier, 98
N.Y.2d 270, 746 N.Y.S.2d 657, 774 N.E.2d 722 (2002) (negligence of
nonparty intentional attacker considered). Details may vary. West
Virginia has held that the negligence of nonparties is to be compared when
the plaintiff is guilty of comparative fault, but that the rule of several
liability does not apply to permit apportionment between party and
nonparty tortfeasors when the plaintiff is innocent of negligence. Rowe v.
Sisters of the Pallottine Missionary Soc’y, 211 W.Va. 16, 560 S.E.2d 491
(2001) (explicating earlier authority).
72 Van Brunt v. Stoddard, 39 P.3d 621 (Idaho 2001) (court found that
passenger in defendant’s vehicle, who told defendant to turn, triggering a
turn into the plaintiff, breached no duty and was not a cause, hence his
“fault” need not be counted in comparing fault of plaintiff and defendant);
Pepper v. Star Equip., Ltd., 484 N.W.2d 156 (Iowa 1992); Ridings v. Ralph
M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996).
73 See Jones v. Crawforth, 205 P.3d 660 (Idaho 2009); Morgan v.
Scott, 291 S.W.3d 622 (Ky. 2009) (“[F]ault may not be properly allocated to
a party, a dismissed party or settling nonparty unless the court or the jury
first find that the party was at fault; otherwise, the party has no fault to
allocate”); Romain v. Frankenmuth Mut. Ins. Co., 762 N.W.2d 911 (Mich.
2009).
74 See Morgan v. Scott, 291 S.W.3d 622 (Ky. 2009).
75 Scottsdale Ins. Co. v. Cendejas, 205 P.3d 1128 (Ariz. Ct. App.
2009).
76 Johnson v. Rockwell Automation, Inc., 308 S.W.3d 135 (Ark.
2009).
77 Unif. Apportionment of Tort Responsibility Act § 9 (2002).
78 DaFonte v. Up-Right, Inc., 2 Cal.4th 593, 828 P.2d 140, 7
Cal.Rptr.2d 238 (1992); Dietz v. General Elec. Co., 169 Ariz. 505, 821 P.2d
166 (1991); cf. Bode v. Clark Equip. Co., 719 P.2d 824 (Okla. 1986) (fault of
immune employer considered to determine whether the fault of all persons
exceeded the plaintiff’s fault). Unzicker v. Kraft Food Ingredients Corp.,
783 N.E.2d 1024 (Ill. 2002), held in accord with the text, but subsequent
legislation seems to ignore the employer’s negligence, at least for some
purposes. See Skaggs v. Senior Servs. of Cent. Ill., Inc., 355 Ill. App. 3d
1120, 823 N.E.2d 1021, 291 Ill. Dec. 435 (2005). See also Andrew R. Klein,
Apportionment of Liability in Workplace Injury Cases, 26 Berkeley J.
Emp. & Lab. L. 65 (2005).
79 See CSX Transp., Inc. v. Miller, 46 So.3d 434 (Ala. 2010) (FELA);
Burnett v. Columbus McKinnon Corp., 69 A.D.3d 58, 887 N.Y.S.2d 405
(2009); Troup v. Fischer Steel Corp., 236 S.W.3d 143 (Tenn. 2007); Dresser
Indus. v. Lee, 880 S.W.2d 750 (Tex. 1993) (not permitting evidence of
employer negligence for percentage apportionment but allowing it for
other purposes); Jonathan Cardi, Apportioning Responsibility To Immune
Nonparties: An Argument Based on Comparative Responsibility and the
Proposed Restatement (Third) of Torts, 82 Iowa L. Rev. 1293, 1314 (1997).
80 Y.H. Invs., Inc. v. Godales, 690 So.2d 1273 (Fla. 1997) (on the
facts, parent was immune to a claim by her child, but her fault is
considered in assessing the defendant’s fault and defendant is liable only
for his share). But see Mack Trucks, Inc. v. Tackett, 841 So.2d 1107 (Miss.
2003) (distinguishing employers from other immune parties).
81 Peterson v. Pittman, 391 N.W.2d 235 (Iowa 1986); Ridings v.
Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996) (“fault may be
attributed only to those persons against whom the plaintiff has a cause of
action in tort”).
82 Pepper v. Star Equip., Ltd., 484 N.W.2d 156 (Iowa 1992)
(bankrupt’s immunity); Schwennen v. Abell, 430 N.W.2d 98 (Iowa 1988)
(wife could not recover against husband for husband’s negligence in
causing injury to himself; in wife’s suit against third person for loss of
consortium, husband’s negligence is not to be considered).
83 Pepper v. Star Equip., Ltd., 484 N.W.2d 156, 158 (Iowa 1992).
84 See § 33.17 (discussing the argument that comparing strict
liability with fault is like comparing apples and oranges).
85 See, e.g., Mark E. Rozkowski & Robert A. Prentice, Reconciling
Comparative Negligence and Strict Liability: A Public Policy Analysis, 33
St. Louis U. L.J. 19 (1988).
86 See State Farm Ins. Cos. v. Premier Manufactured Sys., Inc., 172
P.3d 410, 418 (Ariz. 2007); William J. McNichols, The Relevance of the
Plaintiff’s Misconduct in Strict Products Liability, the Advent of
Comparative Responsibility, and the Proposed Restatement (Third) of
Torts, 47 Okla. L. Rev. 201 (1994).
87 Safeway Stores, Inc. v. Nest-Kart, 21 Cal.3d 322, 146 Cal.Rptr.
550, 579 P.2d 441 (1978) (Safeway, negligent, was chargeable with 80%,
the manufacturer of a product causing injury, strictly liable, chargeable
with 20%).
88 Restatement (Third) of Torts: Apportionment of Liability § 8 cmt.
a (2000). This Restatement invites an unweighted consideration of broadly
stated factors, including states of mind. It may invite jurors to decide more
of their preferences for the parties than their judgment of conduct.
89 See Ellen M. Bublick, The End Game of Tort Reform: Comparative
Apportionment and Intentional Torts, 78 Notre Dame L. Rev. 355 (2003)
(finding that in 2003 the majority of states did not compare the
responsibility of intentional and negligent tortfeasor defendants but that
of the 22 states that had recently considered the issue, 14 were in favor
and 8 opposed); Christopher M. Brown & Kirk A. Morgan, Consideration of
Intentional Torts in Fault Allocation: Disarming the Duty to Protect
Against Intentional Conduct, 2 Wyo. L. Rev. 483 (2002); William J.
McNichols, Should Comparative Responsibility Ever Apply to Intentional
Torts, 37 Okla. L. Rev. 641 (1984).
90 See, e.g., Brandon v. County of Richardson, 261 Neb. 636 (2001)
(rejecting comparisons in light of common law considerations).
91 See, e.g., Slack v. Farmers Ins. Exch., 5 P.3d 280 (Colo. 2000);
Board of County Comm’rs of Teton County ex rel. Teton County Sheriff’s
Dep’t v. Bassett, 8 P.3d 1079 (Wyo. 2000).
92 Jim Hasenfus, The Role of Recklessness in American Systems of
Comparative Fault, 43 Ohio St. L.J. 399 (1982).
93 David W. Robertson, Eschewing Ersatz Percentages: A Simplified
Vocabulary of Comparative Fault, 45 St. Louis U. L.J. 831 (2001). See also
§ 35.4.
94 Ellen M. Bublick, Apportionment and Intentional Torts, 78 Notre
Dame L. Rev. 355, 398–402, 408 (2003) (explaining that liability is not
assigned based on the defendant’s own fault or causation per se).
(2000).
96 In some cases in this pattern, the intentionally wrongdoing
plaintiff is barred completely, in others allowed a full recovery, depending,
evidently, upon the strength of the policies involved. See § 16.8.
97 E.g., Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449
(1998); Reichert v. Atler, 117 N.M. 623, 875 P.2d 379 (1994); Rodenburg v.
Fargo-Moorhead Young Men’s Christian Ass’n, 632 N.W.2d 407 (N.D.
2001) (“A negligent tortfeasor’s conduct is compared with an intentional
tortfeasor’s conduct”).
98 Compare Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d
449 (1998) (allowing comparison of one defendant’s intentional tort with
another defendant’s negligence), with Williams v. Thude, 934 P.2d 1349
(Ariz. 1997) (disallowing suit by willful and wanton plaintiff against
negligent defendant).
99 Compare Martin v. United States, 984 F.2d 1033, 1039–40 (9th
Cir. 1993) (holding that under California’s comparative fault act,
intentional and negligent torts of defendants should be compared), with
Heiner v. K-Mart Corp., 100 Cal.Rptr.2d 854, 864 (Ct. App. 2000) (refusing
to allow batterer to assert plaintiff negligence).
100 See Dobbs, Hayden & Bublick, The Law of Torts §§ 222 & 494 (2d
ed. 2011 & Supp.) on apportionment problems in multiple tortfeasor cases
and in particular § 498 in the kind of case in which A negligently risks B’s
intentional wrongdoing.
101 Kenneth W. Simons, Dimensions of Negligence in Criminal and
Tort Law, 3 Theoretical Inquiries L. 283, 329 (2002) (calling the apples to
oranges comparisons “treacherous”).
102 Geoffrey C. Hazard, Jr., Foreword, Restatement Third of Torts
(Apportionment of Liability) xii–xiii (Proposed Final Draft (Revised) 1999).
103 Restatement (Third) of Torts: Apportionment of Liability § 8 cmt.
a (2000).
104 Morden v. Continental AG, 235 Wis.2d 325, 611 N.W.2d 659
(2000).
105 State, Dep’t of Health & Soc. Servs. v. Mullins, 328 P.3d 1038
(Alaska 2014) (“plainly unreasonable” finding would be overturned).
106 See, e.g., Southern Alaska Carpenters Health & Sec. Trust Fund
v. Jones, 177 P.3d 844 (Alaska 2008); Fontenot v. Patterson Ins., 23 So.3d
259 (La. 2009) (“the allocation of fault is not an exact science, or the search
for one precise ratio, but rather an acceptable range … any allocation by
the factfinder within that range cannot be clearly wrong”).
107 See, e.g., Paragon Family Restaurant v. Bartolini, 799 N.E.2d
1048 (Ind. 2003); Roman Catholic Diocese of Covington v. Secter, 966
S.W.2d 286 (Ky. 1998).
108 In re World Trade Ctr. Bombing Litig., 776 N.Y.S.2d 713 (Sup. Ct.
2004).
109 Nash v. Port Auth. of N.Y. & N.J., 856 N.Y.S.2d 583 (App. Div.
2008).
110 See § 35.9.
111 In re World Trade Ctr. Bombing Litigation, 957 N.E.2d 733 (N.Y.
2011).
112 Hutcherson v. City of Phoenix, 961 P.2d 449 (Ariz. 1998); Weiss v.
Hodge, 567 N.W.2d 468 (Mich. 1997).
113 See Ellen M. Bublick, Upside Down? Terrorists, Proprietors, and
Civil Responsibility for Crime Prevention in the Post-9/11 Tort-Reform
World, 41 Loy. L.A. L. Rev. 1483 (2008).
114 See Stevens v. New York City Transit Auth., 797 N.Y.S.2d 542
(App. Div. 2005).
115 See § 35.9; Restatement (Third) of Torts: Apportionment of
Liability § 14 (2000) (adopting an ameliorative rule for all tracks of
liability because the secondary issue of apportionment would otherwise
endanger the primary issue of imposition of liability in the first place).
116 Brewer v. J.B. Hunt Transp. Inc., 35 So.3d 230 (La. 2010).
117 See Dobbs, Hayden & Bublick, The Law of Torts § 227, 498 (2d ed.
2011 & Supp.).
118 Id. at § 209.
119 See Lubecki v. City of New York, 304 A.D.2d 224, 758 N.Y.S.2d
610 (2003) (robber took a hostage as a shield, police officers fired, allegedly
in contravention of police standards, killing the hostage; police entities
may be held jointly and severally if officers acted recklessly). See also
Tegman v. Accident & Med. Investigations, Inc., 150 Wash.2d 102, 75 P.3d
497 (2003) (where the negligent tortfeasor was second in point of time and
the intentional tortfeasor first; the court applied a unique rule requiring
causal apportionment rather than apportionment based on fault).
120 See Dobbs, Hayden & Bublick, The Law of Torts § 227 (2d ed. 2011
& Supp.)..
121 Weidenfeller v. Star & Garter, 1 Cal.App.4th 1, 2 Cal.Rptr.2d 14
(1991); Ozaki v. Association of Apartment Owners of Discovery Bay, 87
Haw. 265, 954 P.2d 644 (1998); Steele v. Kerrigan, 148 N.J. 1, 689 A.2d
685 (1997); Barth v. Coleman, 118 N.M. 1, 878 P.2d 319 (1994); Rodenburg
v. Fargo-Moorhead Young Men’s Christian Ass’n, 632 N.W.2d 407 (N.D.
2001); Board of County Comm’rs of Teton County v. Basset, 8 P.3d 1079
(Wyo. 2000).
122 See, e.g., Ali v. Fisher, 145 S.W.3d 557 (Tenn. 2004).
123 Bhinder v. Sun Co., 263 Conn. 358, 819 A.2d 822 (2003)
(recognizing a statutory change effecting this result); Kansas State Bank
& Trust Co. v. Specialized Transp. Servs., Inc., 249 Kan. 348, 819 P.2d 587
(1991); Brandon v. County of Richardson, 624 N.W.2d 604 (Neb. 2001);
Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997). The court in Brandon
construed its statutes to exclude comparison between negligence and
intent, but also observed that “it would be irrational to allow a party who
negligently fails to discharge a duty to protect to reduce its liability
because there is an intervening intentional tort when the intervening
intentional tort is exactly what the negligent party had a duty to protect
against.” Brandon, supra, 624 N.W.2d at 620.
124 Tegman v. Accident & Med. Investigations, Inc., 150 Wash.2d 102,
75 P.3d 497 (2003).
(2000).
126 Unif. Apportionment of Tort Responsibility Act § 6(1) (2002).
Statutes may obliquely address the problem. See N.Y. C.P.L.R. § 1602,
leaving joint and several liability standing in actions that require proof of
intent and also those in which the target defendant acted recklessly.
127 See Ellen M. Bublick, The End Game of Tort Reform: Comparative
Apportionment and Intentional Torts, 78 Notre Dame L. Rev. 355 (2003).
128 Id. The Restatement supports the general view that the fault
involved in intentional torts is to be compared with the fault in negligent
torts, see Restatement (Third) of Torts: Apportionment of Liability § 1
(2000), even though it rejects the rule of several liability where the
negligent actor creates a specific risk of intentional harm.
129 Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449, 452
(1998); Ellen Bublick, Upside Down? Terrorists, Proprietors, and Civil
Responsibility for Crime Prevention in the Post-9/11 Tort-Reform World,
41 Loy. L.A. L. Rev. 1483 (2008).
& Supp.).
131 Statues may so provide, e.g., Mich. Comp. L. Ann. § 600.2956. See
generally Restatement (Third) of Torts: Apportionment of Liability § 13
(2000). This is especially so in the case of an employer who negligently
hires or negligently retains a dangerous employee, even if the dangerous
employee is acting outside the scope of his employment.
132 Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449, 452
(1998) (“jury may apportion fault among defendants and nonparties,
without distinguishing between intentional and negligent conduct or
requiring that a minimum percentage of responsibility be assigned to the
former”); Nash v. Port Auth. of N.Y. & N.J., 856 N.Y.S.2d 583 (App. Div.
2008). Some courts have found allocation of more fault to the negligent
facilitator to be unsupported by evidence. E.g., Scott v. County of Los
Angeles, 27 Cal.App.4th 125, 32 Cal.Rptr.2d 643 (1994); but cf. Frugis v.
Bracigliano, 177 N.J. 250, 827 A.2d 1040 (2003) (listing factors and policies
that might justify greater liability on the part of the facilitator).
133 Woods v. Cole, 181 Ill.2d 512, 693 N.E.2d 333, 230 Ill.Dec. 204
(1998); Reilly v. Anderson, 727 N.W.2d 102 (Iowa 2006); Yount v. Deibert,
147 P.3d 1065 (Kan. 2006) (recognizing that joint and several liability
remains for intentional and concerted action, but only when the claim is
brought by a third person who was not acting in concert); Jedrziewski v.
Smith, 128 P.3d 1146 (Utah 2005); Strahin v. Cleavenger, 216 W.Va. 175,
603 S.E.2d 197 (2004) (taking a broad view of joint tortfeasors in this
context); Restatement (Third) of Torts: Apportionment of Liability § 24
(2000). Some of the joint and several liability statutes say so, some do not.
134 See Frugis v. Bracigliano, 177 N.J. 250, 827 A.2d 1040 (2003),
discussed below.
135 In some instances, statutes specifically abolish joint and several
liability in alcohol provider cases. See Peters v. Saft, 597 A.2d 50 (Me.
1991) (liquor liability law made provider severally liable only, held,
constitutional); Kavadas v. Lorenzen, 448 N.W.2d 219 (N.D. 1989)
(provision of alcohol to one who later injured officer in resisting arrest;
statute limiting provider’s liability to proportionate responsibility was
constitutional under rational basis test as against equal protection
challenge).
136 See Steele v. Kerrigan, 148 N.J. 1, 14, 689 A.2d 685, 691 (1997).
137 See the very thoughtful dissenting opinion of Chief Justice
Jefferson in F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680
(Tex. 2007).
138 William D. Underwood & Michael D. Morrison, Apportioning
Responsibility in Cases Involving Claims of Vicarious, Derivative, or
Statutory Liability for Harm Directly Caused by the Conduct of Another,
55 Baylor L. Rev. 617, 621 (2003).
139 Writers have used various terms for this special kind of case,
sometimes referring to the facilitator of torts caused by others as enablers,
sometimes as sentinels. See William K. Jones, Tort Triad: Slumbering
Sentinels, Vicious Assailants, and Victims Variously Vigilant, 30 Hofstra
L. Rev. 253 (2001) (“sentinel”); Robert L. Rabin, Enabling Torts, 49 DePaul
L. Rev. 435 (1999).
140 See § 26.2, and specific instances, such as a hospital’s liability for
admission of incompetent physicians or failure to supervise them, §§ 21.16
& 26.6.
141 See § 26.10.
142 See Steele v. Kerrigan, 148 N.J. 1, 14, 689 A.2d 685, 691 (1997)
(recognizing but not applying the view that apportionment between
tortfeasors is precluded when the duty of one “encompassed the obligation
to prevent the specific misconduct of the other”). Other New Jersey cases
have also recognized that apportionment in several liability systems
dilutes the duty of the facilitator-defendant. See Frugis v. Bracigliano, 177
N.J. 250, 827 A.2d 1040 (2003).
143 Rausch v. Pocatello Lumber Co., Inc., 135 Idaho 80, 14 P.3d 1074
(2000) (negligent supervision by employer); McCart v. Muir, 230 Kan. 618,
641 P.2d 384 (1982) (negligent entrustment); Ali v. Fisher, 145 S.W.3d 557
(Tenn. 2004) (negligent entrustment).
144 See Bohrer v. DeHart, 961 P. 2d 472 (Colo. 1998) (negligent hiring
and supervision, apportionment of responsibility between employer and
employee); cf. Frugis v. Bracigliano, 177 N.J. 250, 827 A.2d 1040 (2003)
(apportionment and hence limited liability of school board-employer for
employee’s sexual misbehavior with students, emphasizing statutory
construction).
145 Mitchell v. Hastings & Koch Enters., Inc., 647 N.E.2d 78 (Mass.
App. Ct. 1995); Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643
(Tex. Ct. App. 2002) (drawing analogy to vicarious liability (which would
impose joint and several liability) because the entrustor, no matter how
negligent, is not liable unless the entrustee commits a tort). The same
outcome may result as a side effect of a common rule that if employment
relation and vicarious liability are admitted, the plaintiff cannot also rely
on a negligent entrustment or negligent hiring theory. See McHaffie v.
Bunch, 891 S.W.2d 822 (Mo. 1995).
146 Rosell v. Central W. Motor. Stages, Inc., supra n. 145 (drawing
analogy to vicarious liability (which would impose joint and several
liability) because the entrustor, no matter how negligent, is not liable
unless the entrustee commits a tort).
147 In F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680
(Tex. 2007), the court rejected the argument that an alcohol provider was
vicariously liable and also rejected the analogy to negligent entrustment.
148 Frugis v. Bracigliano, 177 N.J. 250, 827 A.2d 1040 (2003).
149 Spelling out guidelines governing the jury’s apportionment. See id.
at 282–83, 827 A.2d at 1059.
150 See Martignetti v. Haigh-Farr Inc., 425 Mass. 294, 680 N.E.2d
1131 (1997) (where plaintiff and defendants are all responsible for release
of hazardous materials, plaintiff who bore the cost of cleanup can get
contribution from others, but orphan shares of responsibility due to
insolvency of any defendant must be borne equitably among all parties).
151 Zhu Wang, Research on Apportionment of Tort Liability—A
General Theory of Apportionment of Tort Liability Among Multiple Parties
(2010) (discussing the idea as a model for Chinese tort law).
152 Conn. Gen. Stat. Ann. § 52–572h(g) & (h); Mich. Comp. L. Ann. §
600.6304(6)(b). Distinguish reallocation statutes that merely provide for
reallocation among defendants in contribution actions. See Rodgers v.
Colby’s Ol’ Place, Inc., 802 A.2d 1159 (N.H. 2002).
153 Restatement (Third) of Torts: Apportionment of Liability § D18
cmt. b (2000).
154 Id. §§ D18–19.
155 Id. §§ E18–21.
156 Id. § D18 cmt. c and g.
157 Id. § D18 rptrs. notes cmt. g. E.g., N.Y. C.P.L.R. § 1601 (50%).
About 10 states use a threshold at some level, sometimes in combination
with a distinction between economic loss and noneconomic loss. Ohio’s law
abolishing joint and several liability for tortfeasors chargeable with less
than 50% of the overall responsibility was held unconstitutional in Ohio
Acad. of Trial Lawyers v. Steward, 715 N.E.2d 1062 (Ohio 1999).
158 See Fla. Stat. Ann. § 768.81; Haw. Rev. Stat. § 663–31.
159 Restatement (Third) of Torts: Apportionment of Liability § E18
cmt. c and d (2000).
160 See David Baldus, John C. McQueen, & George Woodworth,
Improving Judicial Oversight of Jury Damages Assessments: A Proposal
for the Comparative Additur/Remittitur Review of Awards for
Nonpecuniary Harms and Punitive Damages, 80 Iowa L. Rev. 1109 (1995).
161 Lucinda Finley, The Hidden Victims of Tort Reform: Women,
Children and the Elderly, 53 Emory L.J. 1263 (2004).
162 Id.
163 Kwansy v. United States, 823 F.2d 194 (7th Cir. 1987).
164 Ohio’s law abolishing joint and several liability for tortfeasors
chargeable with less than 50% of the overall responsibility was held
unconstitutional in Ohio Academy of Trial Lawyers v. Steward, 715 N.E.2d
1062 (Ohio 1999).
165 See, e.g., Cal. Civ. Code § 143; Neb. Rev. Stat. § 25–21,185. Cal.
Civ. Code § 1431.2; Neb. Rev. Stat. § 25–21,185.10. California’s provision
was held inapplicable to strict products liability actions in Bostick v. Flex
Equip. Co., 147 Cal. App. 4th 80, 54 Cal. Rptr. 3d 28 (2007). See also
Restatement (Third) of Torts: Apportionment of Liability § E18 rptrs note
cmt. b (2000).
166 See Narkeeta Timber Co., Inc. v. Jenkins, 777 So. 2d 39 (Miss.
2001) (construing the Mississippi statute).
167 Chianese v. Meier, 98 N.Y.2d 270, 746 N.Y.S.2d 657, 774 N.E.2d
722 (2002).
168 N.Y. C.P.L.R. § 1602.
169 Lubecki v. City of New York, 304 A.D.2d 224, 758 N.Y.S.2d 610
(2003).
905
Chapter 36
ALTERNATIVE SYSTEMS FOR

COMPENSATING INJURY
Analysis
A. CRITICISM OF TORT
B. WORKERS’ COMPENSATION
§ 36.3 Workers’ Compensation: Injury Arising Out of and In the Course
of Employment
§ 36.4 Workers’ Compensation: Accident vs. Disease
§ 36.5 Workers’ Compensation: Exclusive Remedy and Third Parties
C. OTHER INJURY SYSTEMS
§ 36.9 Taxing Industry to Create Compensation Funds
__________
A. CRITICISM OF TORT
The traditional view. Critics of the tort system have appeared
on all sides. The traditional view is that tort law should both
compensate victims of wrongful behavior and deter that behavior.
Ideally, defendants required to make full compensation would
make their behavior safer. In the case of intentional or malicious
torts, punitive damages might be invoked to do the job.
Main criticisms. One wave of criticism variously asserted that
the tort system (1) does not adequately compensate because many
injuries are uncompensated or under compensated, (2) does not
deter or does not deter adequately, either because deterrence
simply is not accomplished by legal rules and liabilities or because
actual liability systematically tends to be less than theoretically
required, and (3) is inefficient in its use of resources and in its use
of costly liability insurance. Related criticisms pointed to delays
that prevented recovery when it was needed and to the limited
resources provided by the pool of liability insurance that was
sometimes exhausted by recoveries for pain, leaving nothing for
what was regarded as more essential—basic economic harms such
as wage loss.
Studies on under- and overcompensation. Quite a few studies
amply support most of the criticisms about undercompensation,
administrative cost and delay except that
906
the deterrence effects remain controversial.1 One of the earliest

empirical studies showed that of 86,000 persons who suffered
economic loss, some 20,000 received no compensation, and most of
those who were compensated did not draw their compensation from
the tort system.2 There is some argument that undercompensation
may be one of tort law’s most significant problems.3 While
undercompensation has been common for many serious harms,
overcompensation may occur for small losses. This
overcompensation is dreadfully costly because so many small losses
occur.
Inefficiency. On top of this, liability insurance, which fuels most
of the tort system, is said to be relatively inefficient because
expenses attributable to litigation consume a significant share of
premium dollars4 (though the significance of these amounts may be
fueled by some insurance company practices).5
The tort lottery and proposed changes. The uncertainties of tort
litigation contribute to the feeling that it is largely a lottery rather
than a system for redressing wrongs or assuring compensation.6
These and many related concerns have led some observers to
suggest that many tort problems should be allocated to some other
kind of system to be resolved by regulation, by social welfare
programs or social insurance, or administrative agencies,7
although those proposed solutions are not without critics either.8
Excessive liability criticisms. A second wave of criticism,
associated with “tort reform” mainly of the 1980s, has asserted
that the tort system is out of control and that Americans have
become lawsuit prone and greedy, suing over every little injury,
and driving up the cost of doing business. Critics in this wave
argue that insurance has
907
become too costly as a result of overcompensating the injured,

and that in some cases insurance has become unavailable. They
also say that some valuable products like prescription drugs and
vaccines may be driven from the market because of the tort
liabilities they produce. These criticisms have already affected tort
law in most jurisdictions. Many states have imposed caps on
compensatory and punitive damages, reintroduced, expanded or
created new immunities, barred some claims before they have
accrued, or abolished joint and several liability.9 Overall, the
reforms make the individual and the individual case less important
by making the facts about liability and damages less significant
and categorical rules more significant.10
Data on excessive liability criticism. Much of the support for the
tort reform criticisms is anecdotal and impressionistic.11 There is
not much good evidence that litigation has increased overall when
population increases are taken into account,12 even in states said
to be experiencing a litigation crisis.13 In fact, the percentage of
tort cases today may actually be smaller than it was in earlier
years.14 Similarly, there is not much reason to think that juries are
“running amok.”15 According to a Bureau of Justice Statistics
sample, juries found for plaintiffs in 52% of the cases and judges
found for the plaintiff a little more often.16 Moreover, data
indicates that when judges act as triers of fact they make similar
awards to those made by juries, even with respect to punitive
damages.17 Neither is there reason to believe that damages awards
have generally increased. An intensive, 12-year study in a major
metropolitan area concluded that before tort reform, neither the
number of products and medical claims nor the amounts awarded
had increased. Similarly, win rates for plaintiffs in those cases are
especially low.18 Recent data puts the median total award in a
sample of tort cases at $24,000.19 This figure is less than the
average economic cost of injury in at least some types of cases.20 In
2006, the prestigious New England Journal of Medicine published
a study of over 1,400 medical malpractice claims. The study,
carried out by medical doctors, lawyers, nurses, and public health
experts, found that about 60% of the claims did in
908
fact involve medical errors, and in addition that where no

medical error was demonstrated, the claims were mostly denied
compensation.21 Reviewing a large number of studies in the
medical field, one set of commentators evaluated the data this way:
“Plaintiffs who received substandard care generally obtained
compensation; plaintiffs who received proper care generally did
not; and plaintiffs whose care quality was uncertain wound up in
between.”22
Increase in litigation: economic tort claims. Economic tort
litigation appears to have grown, but that is largely litigation by
business enterprises among themselves, not personal injury claims
by individuals.23
Insurance costs. As to insurance costs, it is assuredly true that
in some periods premiums have risen, and this was especially
painful to health care providers. However, increased premium
costs is a complex matter. Premiums are raised at least in part
when insurance investment income is reduced in a slow economy,
not necessarily because of tort claims. The data available are
always limited and can never be fully current, but overall they
suggest that in fact, many people with very good claims do not sue
or even assert a claim,24 and that restricting tort law does not solve
all health care worries.25
Interest groups affecting perceptions. The question whether the
tort system has serious problems and how to resolve them has been
highly politicized by interest groups.26 Neutral and objective
reporting of the facts and assessment of the arguments is very
difficult to obtain.27 However, serious study has been
undertaken.28
909
Mass torts and class actions advantages. The development of

mass tort litigation in the 1980s—hundreds of thousands of
asbestos claims, for example29—has generated a third set of critic-
observers and a large body of literature.30 Mass torts claims have
clogged courts. Critics say the system has been inefficient,
expensive, and unfair.31 Tort law grew out of judicial efforts to
resolve cases one by one. That setting enhanced the courts’
commitment to the rights of both parties based on the unique facts
of each claim and defense. With the development of mass tort
litigation, lawyers may carry large “inventories” of claims against a
product manufacturer or others—perhaps as many as 10,000
claims aggregated and settled in a batch. Some of the dangers,
including collusive settlements that benefit primarily lawyers and
defendants but not plaintiffs,32 may be obvious, but even in the
absence of venal behavior, individuals are likely to be submerged
in the mass claim. There are some protections for class members.33
Moreover, class actions present certain advantages. Some
individuals’ only hope of success may be through the enhanced
investment and services they obtain as part of the lawyer’s
inventory of cases. Moreover, some claims are so small that one-by-
one litigation would essentially give the plaintiff the only option of
no vindication of rights.34 Some critics have suggested that injured
individuals should be permitted to sell their claims to brokers who
would amass claims in a group for more efficient handling.35
Others suggests that mass torts be removed from the tort system
for some kind of alternative resolution, either one more
individually oriented36 or one less so.37 A variation is to preserve
the tort system until the mass claim is mature, then invoke some
kind of administrative or “claims center” approach for remaining
issues.38 One possibility is to combine bellwether trials with non-
class but aggregate settlements facilitated through multidistrict
litigation.39 However these systems pose a number of ethical risks.
For
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example, plaintiffs’ lawyers may be at risk for losing their

attorney fees unless they pressure clients to sign-off on
settlements.40 Another possibility, although it seems adapted to a
narrow range of cases, is to create a state or federal compensation
fund that operates independently of tort law, as Congress did in
the case of victims of the September 11 terrorist attack on the
Pentagon and World Trade Center.41 A company or industry paid
fund is another approach.42
Alternatives
Different systems. Deep-seated criticisms assert that the tort
way of resolving disputes, providing compensation, and seeking
deterrence is so inadequate that alternative systems should be
sought out. A number of different systems are actually now in
place. They do not displace the tort system over a wide spectrum.
Instead, they supplement it in providing some degree of relief for
injury when tort law provides none or an inadequate amount, or
providing a more efficient (and less individualized) system for
administering compensation. In fact, these compensation systems
are so vast that tort law might be seen as a supplement to some of
them.43 The alternatives in place generally provide caps or limits
on compensation. Some alternatives are limited welfare systems,
providing for emergency medical care44 or funds for
rehabilitation.45 In mass tort cases, the bankruptcy court has also
become a kind of alternative for administering relief.46 Alternative
dispute resolution (ADR), emphasizing party control of the dispute,
mediation, and negotiation, and, quite distinctly, arbitration,47 also
represent possible approaches to claims now allocated to the tort
system.
Five important alternatives. Five alternative systems are
especially important because they represent some of the divergent
approaches that may suggest the pitfalls and advantages of
different alternative systems. At the same time, these five systems
are not only in place but are sometimes critical in determining tort
rights and liabilities and consequently deserve notice of tort
lawyers. These five systems are (1) workers’ compensation, (2)
social security disability or welfare rights, (3) private insurance
such
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as that found in no-fault plans, (4) government compensation

funds and (5) a system for taxing dangerous activities and using
the funds created by the tax to pay for harms. Each of these
alternatives could be adopted as a way of dealing with some
personal injuries. In fact, four of the five have actually been
substituted for the tort system somewhere. Each has advantages
and disadvantages in the kind of deterrence that might be
generated, the extent and appropriateness of compensation, and
the kind of process used. Whether they are deemed better than the
tort system or worse, they all throw a strong sidelight on it.
B. WORKERS’ COMPENSATION
Common Law and the Adoption of Workers’ Compensation
Common law liabilities of employers. Nineteenth century
employers owed a duty of care to employees, usually described in
specific terms as a duty to provide employees with a reasonably
safe place in which to work, reasonably safe tools and appliances,
warnings of dangers likely to be unknown to employees, a
sufficient number of suitable fellow servants, and rules that would
make work safe.48 However, the ordinary rules of vicarious liability
did not apply; under the fellow servant rule, the employer was not
liable for injuries to an employee caused by the negligence of
another employee.49 In addition, injured employees were barred
from recovery by contributory negligence and a broad application of
assumed risk. Beyond this, much of the work around machinery
was unavoidably dangerous, so that injuries occurred often enough
even without provable fault. All these things plus the delay and
uncertainty of compensation made life for the injured worker
almost intolerably difficult, especially in a day when no welfare
backup of any kind was available.
Early compensation systems. There were niches of liability.
Admiralty law recognized a kind of judge-made no-fault
compensation system for seamen, who would be entitled to
maintenance and care during a recuperative period, that is, basic
support and medical attention.50 In addition, a few statutes were
passed to require safer working places, but these were construed
narrowly to avoid liability in many instances.51 Congress provided
for automatic couplings and other safety devices on railroad
trains.52 The Federal Employers’ Liability Act established a rule of
comparative negligence and eliminated the bar of contributory
fault and assumed risk for employees of interstate railroads,53 but
at best these statutes applied only to railroad workers.
Development of workers’ compensation. Given the limited hopes
a worker might have under the common law rules, workers’
compensation statutes represented
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progressive reform.54 However, it originated in Germany, as
Bismarck’s defense against Marxism55 and workers’ compensation
ever since has shown a side favorable to workers and another side
quite favorable to employers. In 1910 New York became the first
state to enact a workers’ compensation statute. This was held
unconstitutional as a taking of property without due process
because it imposed liability without fault,56 but with an
amendment of its constitution New York got a statute that held up.
Other states followed, most of them quickly. All states now have
workers’ compensation statutes. A federal compensation plan
provides for federal workers57 and another for longshoremen.58
Workers’ compensation plans reflect the clearest expression of the
enterprise liability ideas—that enterprise should bear the costs it
systematically produces, including the costs of injury. But they also
show a strong intent to limit significantly the employers’ liabilities.
The Architecture of Workers’ Compensation
Basic information. Workers’ compensation requires employers
to pay benefits for disability caused by accidental injuries arising
out of and in the course of employment and for injuries resulting
from an occupational disease incurred in employment, subject to
some careful exclusions. Some employments and some types of
employees are excluded59 or included60 by statute and some
statutes still permit workers or employers to opt out of a workers’
compensation system. The incentives favor staying within the
system and few elect to return to the common law system.
Otherwise, workers’ compensation is generally mandatory. It may
even impose responsibility upon “statutory employers” whose
“employees” are actually independent contractors.61 The structure
of workers’ compensation statutes in most states is described
below.
Compensation rules. The employer (1) is strictly liable for injury
incurred in the course and scope of employment and (2) is required
to purchase private insurance or participate in a state-managed
insurance fund to guarantee payments of benefits as required by
the statute; (3) cannot limit liability by reason of the workers’
contributory negligence or assumed risk, or under the fellow
servant rule, although he is not liable for an employee’s self-
inflicted intentional injury; (4) benefits from limited liability (for
example, in the case of an employee’s total disablement, the
employee’s recovery may be two-thirds of her average wage for a
limited period of years plus medical expenses, but
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notably not for pain and suffering); (5) pays benefits (through
the insurer or state fund) periodically and immediately, with
payment processed automatically.
Administrative enforcement. Enforcement is ordinarily in the
hands of an administrative agency, so there is no jury trial in most
states. The role of courts in reviewing the administrative decision
is to determine issues of law and the sufficiency of evidence to meet
the legal requirements.62 The workers’ compensation remedy is
exclusive; the worker cannot recover from the employer in tort,
even if the employer is negligent. Moreover, the employee cannot
recover unless she suffers medically treatable harm or a disability.
Some states do permit a tort recovery against the employer for his
intentional torts, however. Occupational disease and disability
without external injury may be treated much more cautiously.
Workers’ Compensation as a Model for Changing Tort Law?
Standardization. In comparison to the individualized approach
of the tort system, workers’ compensation is highly standardized.
In workers’ compensation, the fact of injury is a matter to be
determined individually, case by case, but the amount of
compensation and its cap is standardized. The issue of negligence
simply does not arise. Standardization and severely limited
benefits yield efficiency in the sense that a relatively high
percentage of dollars invested in insurance are returned as
benefits. Yet the original hope that lawyers would be unnecessary
has proved to be too optimistic. A high percentage of claims are
disposed of without serious dispute or administrative resolution,
but in disputed claims, lawyers are quite often needed. The
original hope that payments would be prompt has sometimes been
disappointed, too, although the system performs far better in that
regard than the tort system.
Concerns. Some critics object that benefits are too low and too
limited; others object that the system, efficient as it is, costs too
much. Recent statutes in some states reflect some doubts; they
have made it permissible for the first time for unions and
employers to provide themselves with an alternative dispute
resolution (ADR) system in certain employments.63
Exclusive remedy. The workers’ compensation system also poses
problems in the way that it relates to the tort system. The
exclusive remedy provision bars claims even against the
egregiously negligent employer and it also protects the employer
against liability for contribution when third persons are held
liable.64 Employer-oriented criticisms, however, suggest that the
exclusive remedy is not exclusive enough because employees can
“circumvent” workers’ compensation and sue in tort when the
employer is guilty of an intentional tort, when other statutes
provide a remedy, and several other instances.65 Yet when workers
are guilty of intentional66 or reckless misconduct, employers may
well want out of the workers compensation system themselves.67
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§ 36.3 Workers’ Compensation: Injury Arising Out

of and In the Course of Employment
Course of employment. The statutes provide for benefits only for
accidental injury occurring in the course of and arising out of
employment. Course of employment refers mainly to time and
place; injuries that occur going from or coming to work are not
covered68 unless the employee is on a special errand or holds a
traveling job for the employer, in which case injury during the
travel falls within the course of employment.69 There are many
borderline cases requiring adjudication, as where the employee is
injured in the company parking lot on the way to work,70 injured
during a break71 or company event,72 or telecommuting from
home.73
Arising out of employment. An injury is not necessarily
compensable because it occurs in the course of employment; it must
also arise out of employment. That is, the injury must be
associated with risks of employment. Broadly speaking, the issue is
like the scope-of-risk issue in proximate or legal cause cases, except
that, because liability for workers’ compensation is strict, the risk
need not be negligently created or even foreseeable.74 It is enough
if it is a risk associated with employment, even if the risk itself is
small or unexpected. In the main, the arising out of employment
rule excludes personal risks. If an employee acting in the course of
employment is attacked by a stranger, or by a fellow employee in a
job-related dispute, the injury arises out of employment.75 But if
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the employee is attacked in an injury that arises from the

employee’s personal life, there is no recovery.76
Neutral risk cases. When the risk that eventuates in injury is
“neutral,” neither especially personal nor especially job-related,
courts sometimes have difficulty in determining whether the injury
arose out of employment. If the employment increased the risk,77
or in some states, if the employment was merely a but-for cause of
the harm, the employer will owe compensation in neutral risk
cases, as where the employee merely slips and falls.78 Many
variations on the theme arise, almost always turning on factual
details that help associate or disassociate the injury from
employment risks.79
§ 36.4 Workers’ Compensation: Accident vs.
Disease
Accidental Injury
Intent. Occupational disease aside, compensation statutes also
require “accidental injury,” or as sometimes phrased, “injury by
accident.”80 The requirement of an accident certainly implies that
an injury intentionally self-inflicted would not qualify for
compensation. However, when a third person attacks the employee
on the job, the injury remains an accident from the point of view of
both the employee and the employer, so compensation is awarded
in such cases if the attack arose out of employment,81 and the same
kind of reasoning has led courts to treat co-employee attacks as
compensable accidental injuries so far as the employer is
concerned.82
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Definite occasion. The requirement of accidental injury or injury

by accident may imply not only an unintended injury but (1) a
definite occasion or time when injury occurred and (2) an external
event. Injuries that occur through repetitive stress over a long
period do not fit the definite occasion rule, and some courts have
excluded compensation for such injuries.83 However, in many cases
courts ignore or depart from the definite occasion rule and permit
compensation for repetitive stress injuries or allergies that develop
from exposure over time.84 Others may address such problems
under the rubric of occupational disease.
External event. The employer takes the employee with all her
preexisting conditions. A compensable injury may therefore result
if an accident aggravates or triggers a preexisting condition.85 On
the other hand, courts may narrow the road to compensation for
heart attacks, hernias, or strokes on the job by saying that an
internal bodily breakdown is not an external event and thus not an
accident unless the heart attack or the like is triggered by some
unusual activity such as heavy lifting.86 A more liberal view
permits compensation if the job exertion contributes in part to the
attack or stroke, whether or not the exertion is unusual.87
Emotional or “mental” injury. The strongest case for emotional
distress compensation arises when the employee is physically
injured on the job and suffers disabling emotional distress as a
result of that injury. In that case, compensation is appropriately
granted.88 The obverse, the case of mental stimulus producing
physical injury, also seems to touch the core purpose of workers’
compensation.89 When mental or emotional injury arises from a
purely mental stimulus—the so-called mental/mental case—courts
usually become more cautious. Some courts have rejected the
mental/mental claim altogether, limiting recovery for mental or
emotional injury to cases
917
of physical trauma.90 More commonly, however, courts

entertain the claim but impose special proof requirements, for
example, holding that the initial stimulus must have been
abnormal or unusual and not an ordinary part of the job,91 or that
the mental stimulus must have been sudden and unexpected, a
rule that resembles the definite occasion requirement.92 However,
if the stress is greater than usual or normal, then compensation
may be due even though the stress did not arise from a single,
sudden, and definite occasion.93 Compensation will be denied if the
emotional harm is not disabling and requires no medical attention,
since no award is made for pain or suffering.94 Compensation will
also be denied if the mental distress is not reasonable.95
Occupational Disease
Diseases. Although a work-related disease can sometimes count
as an injury by accident,96 the definite occasion and external event
rules often exclude compensation for diseases. Earlier workers’
compensation statutes had no provisions for occupational disease,
as distinct from injury, or at best recognized only a limited number
of diseases. Modern statutes allow compensation for disability
resulting from occupational diseases, but compensation is usually
permitted only if the disease is distinctively related to the
employee’s occupation or the employee was subjected to some
unusual exposure.97 For example, in a New York case, the court
refused to entertain a social worker’s claim of occupational disease
for an eye disorder brought about by exposure to cigarette smoke in
a poorly ventilated room on the ground that the disease must
derive “from the very nature of the employment, not a specific
condition peculiar to the employee’s place of work.”98 However, a
police officer who saw his partner bleed to death was allowed to
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pursue a claim for workers compensation benefits on the theory

that PTSD is a natural hazard of police work.99 At times, state
statutes create a presumption that a particular disease is related
to employment.100 Where a disease has been caused in part by an
employee’s personal habits and in part by employment-related
factors, most states allow recovery of workers’ compensation
benefits upon a showing that the work-related exposures or
conditions were a substantial contributing factor to the employee’s
disability.101 Where a disease is caused in part by work-related
exposure and in part by a concurrently-developing non-
occupational disease (such as cigarette smoking-related
emphysema), some courts allow the employer to apportion partial
workers’ compensation disability benefits.102
Multiple Employers and the Alternative to Joint Liability
Allocating liability. When injury or disability results from a
compensable disease to which the employee was exposed in two or
more employments, the compensation statutes use a remarkable
rule for allocating liability among the employers that is quite
different from any of the common law apportionment rules. They
simply allocate all liability to the last employment in which the
employee suffered injurious exposure.103 In line with other
features of workers’ compensation that standardize benefits and
liabilities, this one economizes by eliminating the need for
individualized and complex factual evidence. In the long run, the
rule may work out to approximately the right set of ultimate costs
for the employer because so long as the employment
characteristically exposes workers to a disease, as asbestos-related
employments did, an employer liable in one case for all
compensation will escape liability entirely in another case.
§ 36.5 Workers’ Compensation: Exclusive Remedy
and Third Parties
Barring the tort claim. One of the most difficult problems in
meshing workers’ compensation with tort law arises from the
common provisions that the employee’s compensation remedy is
her exclusive remedy against the employer. The effect is that one
who employs the worker at the time of injury104 is immune from
liability for its negligence.105 The immunity not only bars tort
actions by injured employees but also
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derivative claims for loss of consortium106 and wrongful

death.107 The rule does not, however, bar independent claims such
as those of a fetus injured by the employee-mother’s exposure to
toxic substances on the job.108 The employer’s immunity is usually
shared by co-employees who negligently cause on-the-job injury109
so long as the co-employee has not departed from the scope of his
employment by committing an intentional tort unrelated to his
employment.110 Although the immunity does not logically extend
to a parent corporation of the employer,111 or indeed to any
shareholder,112 it may extend to the parent or any other
corporation which is in fact an alter ego of the employer, as where,
through common ownership or management, two companies
operate as a single employer.113 The immunity usually extends as
well to limited partners of the employer,114 to insurers,115 and
executives116 of the employer.
Tortfeasor’s contribution claim against employer. The exclusive
remedy provision does not bar the injured employee’s tort claim
against third parties like manufacturers of defective products that
contributed to the workplace harm. However, when a suit can be
maintained against a third party, issues arise about the fair
allocation of responsibility among third parties and the employer.
In one situation, the tortfeasor, liable to the employee for an injury
also covered by workers’ compensation, seeks contribution from the
employer. A few courts require the employer to make contribution
to the tortfeasor but never in excess of the employer’s workers’
compensation liability.117 This preserves the employer’s tort
immunity. Most courts, however, reject contribution
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claims against the immune employer altogether.118 The result

is that the negligent employer pays the limited amount required as
workers’ compensation while the third party in a joint and several
liability system pays full tort liability. Where joint and several
liability has been completely abolished, the tortfeasor will pay only
his own comparative fault share.119 But that means that the
employee must bear the loss to the extent that it is caused by the
employer’s fault and is not fully compensated by workers’
compensation. Thus if an employer and tortfeasor are each
chargeable with 50% of the fault and the damages are $100,000,
the workers’ compensation payments might be, say, $10,000 only.
That leaves the employee recovering $50,000 from the tortfeasor
and $10,000 in compensation payments; she must bear the
remaining $40,000 loss herself unless the court reinstates joint and
several liability for this situation.120
Employer’s claim against tortfeasor for reimbursement. Workers’
compensation statutes provide that the employer or its insurance
carrier will be reimbursed from the recovery available from the
tortfeasor to the extent it has or will pay compensation. They
create a lien against the tort recovery to protect this right of
reimbursement. Some cases have allowed reimbursement from the
tort recovery even when the damages recovered are only for pain
and suffering for which no compensation at all was paid.121 Where
joint and several liability has been abolished, this system, too,
raises problems because the employee would recover from the
tortfeasor only a percentage of her damages reflecting the
tortfeasor’s proportionate share. Her recovery, then, is reduced by
the employer’s negligence. If she must then fully reimburse the
negligent employer for compensation paid, the employer bears no
share at all of the injury, and the employee bears the burden of
paying for the employer’s share. Some courts feel that the problem
must be resolved by statutes, but others have concluded that the
employer’s reimbursement right should be limited to exclude its
proportionate share of fault.122 If the jury may have deducted the
workers’ compensation payments from the judgment against the
third party, the employer cannot take reimbursement from that
award.123
Permitting tort suit against employer. When no third party
tortfeasor is in the picture, workers’ compensation systems provide
a great deal of assurance that injured employees will receive
financial assistance in the event of physical injury causing work
loss or medical expenses. On the other hand, the employee has no
tort claim even if the employer was negligent and if the injury is
serious. Consequently, employees have sought exceptions to the
exclusive remedy rule. They have found several, though they are
not adopted everywhere. At least some states have recognized an
employee’s right to sue the employer in tort, even though injury
was inflicted arising out of employment, in these cases:
(1) Fraudulent concealment, bad faith. When the
employee’s on-the-job injury is aggravated because the
employer fraudulently conceals it and thus
921
delays treatment.124 Similarly, the employer’s bad faith

in delaying benefits due is actionable in some states.125
(2) Dual capacity. When the employer causes harm
while acting in some capacity other than an employer. For
example, if the employer is a manufacturer and the
employee is injured by the employer’s defective product,
courts can think of the employer as having two roles or
capacities, one as manufacturer of a product and one as
employer. In this view, the employee can sue the employer in
tort in its capacity as a product manufacturer.126 Similarly,
if the employer is a health care provider and negligently
causes injury while it is acting in that capacity, a common
law suit may be permitted.127 But since an employer’s
negligent treatment of an on-the-job injury is itself covered
by workers’ compensation, tort liability in such cases is
generally rejected.128 Some courts say they reject the dual
capacity doctrine altogether.129 But even these courts may
nevertheless permit liability in “dual transaction” cases
where the employer’s tort is in no way related to
employment injury, as where the employer leases an
apartment to an employee, who is injured when the
apartment ceiling collapses.130
(3) Intentional physical harms. A number of statutes
provide, that the exclusive remedy provision does not bar a
tort claim against an employer guilty of an intentional
tort.131 Some of the decisions recognize the traditional
alternative definitions of intent,132 so that the employer will
be liable in tort if he has either purpose to harm or a
substantial certainty that harm will follow.133 Mere risk,
however great, is not enough to show intent under the
traditional concept of substantial certainty.134 Some
jurisdictions, perhaps
922
reacting to the danger that high risk could easily be

treated like substantial certainty, have rejected the
substantial certainty rule altogether and have held the
employer liable in tort only when he had a purpose to
harm.135 Other jurisdictions have defined terms like
“deliberate harm” in a way that seems to encompass more
than ordinary intentional tort terminology might.136
Non-injury torts. Many torts can involve an element of intent
without producing a disabling injury. For instance, an employer
might falsely imprison an employee. If the employee is not disabled
and has no medical expense, there would normally be no workers’
compensation benefits payable. In these circumstances, the
California court has held that the exclusive remedy clause did not
bar a tort recovery because such cases were outside the workers’
compensation “bargain” or basic plan.137 The same kind of
argument can be applied to permit a tort suit for fraud by the
employer that imposes economic costs but not physical injury,138 or
a libel that harms reputation without causing disablement.139
Some sexual harassment or assault may present a special case of
this kind of tort.
C. OTHER INJURY SYSTEMS
Background. The Social Security program signed into law in
1935 under President Franklin D. Roosevelt was designed to pay
benefits to workers over 65 years old. Amendments signed under
President Eisenhower in 1956 and additional amendments enacted
over the next decade extended the program to cover disabled
workers, disabled children and some family members of those
individuals.140 In December 2009, the
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program provided disability benefits to approximately 8.9

million people, 7.8 million of whom were disabled workers.141
Average monthly benefits received by disabled workers under the
system are about $1,000 per month.142 In December 2009,
payments to disabled workers by the government totaled $8.2
billion per month.143
The Social Security disability system. Social Security disability
benefits resemble workers’ compensation in several respects. Like
workers’ compensation, it is a no-fault system and it is enforced
ultimately in administrative hearings (before federal
administrative law judges by a limited review of their decisions, in
the case of social security).144 As in workers’ compensation
systems, the fact of disability that prevents work is the critical fact
to be determined in Social Security claims.
A universal tax-funded program. Likewise, Social Security
determinations are highly standardized, leaving no room to
individuate benefits and little room to individuate findings of
disability. In contrast to workers’ compensation systems, Social
Security is universal; it is not limited to injury cases at all, much
less to on-the-job injuries. One of the most notable differences is
that although workers’ compensation is a no-fault system, the
enterprise that causes the workers’ harm is also the one that pays
the costs. With social security disability benefits, payments, like
Social Security retirement payments, are ultimately derived from
tax funds.145 (Individual contributions to the system, in the form of
Social Security taxes, are insufficient to pay the retirement or
disability benefits.)
Disability and impairment. Social Security disability payments
are viewed as early retirement payments. Disability is not partial
or momentary; only persons whose impairment prevents “any
substantial gainful activity” are entitled to benefits, and then only
if the disability has lasted or will last at least a year or can be
expected to result in death.146 Medical impairment is only half of
the story. An impairment that might not prevent a trained lawyer
from practicing might completely eliminate an uneducated worker
from the job market. The statute specifically recognizes that
disability is determined partly by medical impairment and partly
by education, training and the like. However, the statute also
provides that if the claimant can perform any type of work that
exists in the national economy, she is not disabled, even if that
work is not available locally and even if no actual job vacancy
exists.147 By definition, disability need not result from injury.
Frequently the impairment that leads to disability is disease like
multiple
924
sclerosis, mental limits or breakdown.148 Pain resulting from a

medically determinable condition may lead to a disability.149
Standardizing: listings. Because disability requires both an
impairment and an inability to work, hearings on disputed claims
at one time routinely involved a good deal of vocational testimony
as to jobs available and how they matched the claimant’s physical
or mental abilities. Much of this was repetitious and wasteful and
the governing administrative regulations now contain “listings” of
impairments that automatically qualify as a disability.150 The
listings work in favor of the claimant but cannot be used to
automatically exclude a disability finding.151
Standardizing: the grids. A quite different form of
standardizing utilizes the medical-vocational guidelines or “the
grids.” When the listings do not show an automatic disability
finding, the grids are invoked in cases involving exertional
limits152 to provide a disability profile of the claimant by applying
a table of several factors. The administrative law judge (ALJ) is
required to make a rough finding about the degree of “residual
functional capacity” considering impairment. For example, the
claimant might be limited to light work or medium work. The ALJ
also makes findings about other categories in the table—age,
previous work experience, and education. When those findings are
plugged in, the table provides the ultimate conclusion—disability
or not. The table or grid provides an automatic finding of disability
in some cases, as where the claimant is approaching advanced age,
has no skilled work experience. But the grids may also
automatically determine that the claimant is not disabled, as
where a 45-year-old has the same impairment and education.153
The Supreme Court has upheld the grids, noting that the claimant
still gets individualized adjudication on the specific components
such as impairment, age, and education.154 Indeed, individual
determinations of disability consume most of the resources of the
social security administration.155
Social Security as a model for tort law change? Some torts
scholars doubt the capacity of tort law either to deter wrongdoing
or to provide appropriate compensation
925
to victims. Consequently, they argue for an out and out welfare

program for injured or disabled persons.156 Those who hope or
believe that tort law is part of the culture that helps deter
wrongdoing, indirectly if not directly, on the other hand, would
prefer that benefits be provided by someone in a position to reduce
injury. In that respect, Social Security seems to offer limited
lessons for improving tort law. Its use of standardizing techniques
and their acceptance in the courts point to ways in which
efficiencies may be gained for some aspects of tort law, or
alternatively, may provide cautionary examples against too much
streamlining.157
Liability insurance. So far as personal injury results from
automobile accidents—and a very large amount does—the tort
system is largely fueled by liability insurance.158 If the defendant
has liability insurance, it will pay his legal liability for harm he
causes (and will also investigate and defend the suit against him).
Liability insurance is costly, not only in relation to the earnings of
many people, but also in the sense that most of the premium dollar
is used up in cost of administration, investigation, and trial.159
Liability insurance as the financial backbone of tort law has some
other limitations. No matter how much liability insurance you buy,
it will not help you when you yourself are injured. And you have no
control over whether the person who injures you has purchased
any insurance at all or what amount. A number of states now make
liability insurance compulsory, but enforcement is difficult and the
limits of the insurance purchased severely limit the damages
recoverable. Persons who want protection from others’ negligence
are forced to purchase uninsured motorist insurance, or accident
insurance in addition to their own liability insurance.160
The Keeton-O’Connell Plan. These problems, coupled with the
problems of delay and uncertainty and injustice in tort litigation,
led then Professor (later Judge) Robert Keeton and Professor
Jeffrey O’Connell to work up a detailed plan that would guarantee
everyone injured from use of an automobile some minimal
protection against wage loss and medical expense.161
No-fault insurance. The Keeton-O’Connell Plan, also called no-
fault auto insurance, set up a system under which no one had to
rely exclusively upon others to purchase insurance. Instead, each
auto owner would be required to purchase insurance that would
provide two tiers of benefits. In the first tier, the insurance would
pay the owner, his passengers, and pedestrians injured by his
automobile, for wage loss and medical expenses, but not pain and
suffering. The amounts to be paid were limited. As long as the limit
was not exhausted, no tort suit was permitted.
Operation of no-fault. If damages were greater than the
coverage, the injured person could go to the tort tier. There he
would recover for damage greater than those paid for
926
by his insurance in the first tier. In a two-car collision, if each

driver were injured, each would recover the benefits he had paid
for from his own insurer. If one or both drivers were negligent, and
their damages high enough, they might also litigate tort claims
against each other for the excess.
Since the great bulk of claims are small claims that could fall
exclusively within the first tier, litigation might be reduced if the
first tier was big enough. Basic losses would be paid in all cases,
but pain and suffering would be paid only if basic losses were high
and tort rules would permit recovery.
Adoption. The Keeton-O’Connell plan provided a detailed model
and a number of states adopted some form of it.162 To make the
plan work well, however, it is necessary to exclude tort claims in
the first tier and to make the first tier large enough to cover a very
large number of cases. That is, the threshold for entrance to the
second or torts tier must be high enough to make sure that most
relatively small injuries would be resolved in the no-fault tier. If
legislation established a $1,000 top damage in the first tier, the
plan would fail to insure against substantial losses in the first tier
and would fail to reduce tort litigation by any significant amount.
If legislation merely permitted you to buy accident insurance
without eliminating the tort suit in the first tier, it would have no
beneficial effects at all, since you could already buy accident
insurance. A number of states that adopted no-fault plans either
used an inadequate first tier or merely provided for add-on
insurance, with the result in either case that the plan failed to
work. A very few states adopted no-fault plans with substantial
first-tiers. For instance, New York uses $50,000 as the cap on
economic damages recoverable in the first or no-fault tier. If
economic damages exceed that sum or injury is otherwise “serious”
as defined in the statute, the injured person can then sue in tort.163
A two-tier system. The Keeton-O’Connell no-fault plan differed
more from the workers’ compensation and Social Security systems
than it did from the tort system. In one respect it was like neither.
It envisioned that most claims in the no-fault tier would not
require litigation. The claimant would be claiming against his own
insurer, just as she would with a fire insurance or collision policy.
The terms of the plan left little to dispute and provided a penalty if
the insurer did not properly pay claims. So the bureaucratic or
administrative hearings contemplated by workers’ compensation
and Social Security had no place in the no-fault plan. The plan was
perhaps best adapted to the automobile injury problem.164 But the
two-tier structure of the no-fault plan might prove to be quite
useful in managing tort claims. For instance, the strategy of
standardizing of damages and disability seen in workers’
compensation and Social Security systems may be more acceptable
for tort cases if it were limited to the lower tier of claims.
Compared to caps that harm the most seriously injured, a two-tier
system of torts that standardized and limited damages in the first
tier might prove much more desirable.
927
Criticisms. However, ample criticisms have been raised about

no-fault plans too. The most frequent and notable of these
criticisms concerns the loss of deterrence in no-fault systems,165
though insurance features like experience rating may improve
deterrence.166 In addition, significant concerns have been voiced
about fraud in no-fault systems.167
Compensation funds. Congress has sometimes provided cash
benefits directly or indirectly from public money for specific groups
of victims, either to provide compensation to victims or to limit the
tort liability of potential defendants. The scope and methods in
doing so can be quite different.
The 9/11 fund. The terrorist attacks of September 11, 2001,
prompted a federal statute168 intended primarily to protect airlines
from potential economic losses, providing billions to make up for
losses they suffered when planes were grounded and otherwise.
The statute then added a compensation program for the thousands
injured and killed, partly to provide benefits and partly to make
suits against airlines less likely. The statute left victims with tort
options against the airlines and others, but capped airline liability
at the limit of their insurance and required victims to sue in a
federal court in New York.169
Operation of the fund. The compensation option, pursued by
claims presented to a Special Master, allowed substantial
compensation for economic loss, but less than traditional tort law
would allow in at least five respects. (1) The victim’s personal
needs and her other financial resources are to be considered in
determining the award.170 (2) The regulations promulgated by the
Special Master use a series of presumed damages awards for
various circumstances, reducing the likelihood of individualized
measurement of damages and flattening out the top awards.171 (3)
Future losses, such as those likely to arise from exposure to toxic
materials during rescue operations, are
928
excluded.172 (4) The victims’ award is reduced by collateral

sources;173 (5) pain and suffering damages are effectively capped at
$250,000 for most victims.174
Participation and awards. Ninety-seven percent of the families
of victims who died on September 11th elected to receive
compensation through the compensation fund rather than pursue a
lawsuit.175 For claims based on the death of a victim, awards
ranged from $250,000 to $7.1 million. The average award was
$2.08 million and the median award was $1.68 million.176 In total,
the Fund distributed more than $7 billion to the families of 2,880
people killed in the September 11th attacks and the 2,680 people
who were injured in the attacks or later rescue efforts.177 The
average award for injury victims was nearly $400,000.
Only 96 families chose to file lawsuits. The trial judge issued a
number of rulings that would have allowed the suits to go to
trial.178 Nearly all of the lawsuits settled in light of these favorable
rulings.
Criticisms. When the government is not legally responsible for
the victims’ injuries—probably the case here, given the
discretionary immunity and arguably the absence of negligence—
substantial and direct cash benefits for highly selective groups
seem to be unique. Critics have argued that such substantial
benefits, not precisely capped on the model of workers’
compensation, are difficult to justify for a particular set of
victims179 and are inappropriate where the government is not a
tortfeasor and where others similarly situated—victims of the
Oklahoma City bombing, for example—are not given similar
benefits.180 Other critics have suggested constitutional concerns
and undue federal intervention into state tort law.181 It is quite
possible, however, that the victim’s compensation fund can and will
serve as a model in other situations and to tort law as a whole.182
929
Private settlement “funds.” Private companies that cause

widespread damage may find it in their interests to create a fund
option.183 In the setting in which the company administers the
process and distributions, however, a fund is really just a means of
providing structured and consistent settlement offers.
§ 36.9 Taxing Industry to Create Compensation
Funds
Funds from taxes on industry. In contrast to the direct award of
public money to victims, some other programs have taxed
industries that cause specified harms, then use the fund so created
to pay benefits. Congress did this with one of the stages provided
for in the Black Lung Act.184
National Childhood Vaccine Injury Act. The substance tax is
also the approach taken more recently in the National Childhood
Vaccine Injury Act.185 That statute confronts the fact that vaccines
mandated by statute and by public health policy do regularly cause
devastating injury to vaccinated children and adults. The injury
occurs, not because the vaccines are defective, but because some
adverse reactions are unavoidable.186 Taxing vaccines is likely to
raise their costs to public health agencies that provide them and to
private users. This increased cost can be limited if the benefits
provided are limited and the liabilities standardized. The vaccine
act does both of those things. The compensation for pain is limited
to $250,000 and the compensation for death the same. Other types
of compensation include medical expense and loss of earnings.187
The claim must be pursued in the Vaccine Court before a tort suit
is possible. If the award under the statute is unacceptable to the
claimant, she can seek a tort recovery, but cannot recover for
unavoidable side effects.188
Operation of the vaccine-injury program. The act’s
standardizing techniques as well as its financing are especially
interesting. The plaintiff is permitted to establish that the vaccine
actually caused her injury by the usual method of medical evidence
if she can, which may be a difficult task.189 However, as with the
listings in Social Security disability claims, the plaintiff can rely
instead upon a table with a predetermined list of injuries or
symptoms correlated with each type of vaccine. For example, if the
vaccine is the basic DPT vaccine and anaphylaxis or anaphylactic
shock occurs within 24 hours, the table establishes that the vaccine
is a cause. For the same vaccine, however, if the
930
harm is encephalopathy or encephalitis, causation is

established if the problem is first manifest anytime up to three
days after vaccination.190 The table does not resolve all
problems191 and assuredly leaves it open to the plaintiff to prove
causation, the only issue, in other ways. Whether vaccines cause
certain types of injury has been hugely controversial.192
Criticisms and suggestions. Tax-created injury funds may not be
suitable for the great mass of tort cases. The vaccine plan has been
criticized as slow,193 limiting,194 and inconsistent.195 Its best use
may be for those cases in which liability is doubtful or would likely
be financially destructive. The idea has been raised, however, as a
possible solution for alcohol related injuries.196 The injured victims
of a drunk driver can seldom enforce a substantial judgment
against the drinker and often cannot do so against the alcohol
provider. In those circumstances, an injury fund created by taxes
on the substance may prove a useful solution, especially if, as in
the Vaccine Injury Act, the victim still has an option to seeking
redress in the tort system.
________________________________
1 Compare A. Mitchell Polinsky & Steven Shavell, The Uneasy
Market for Products Liability, 123 Harv. L. Rev. 1437 (2000) (suggesting
that market forces and regulation can reduce the need for product liability
law to encourage safety), and Stephen D. Sugarman, Doing Away with
Tort Law, 73 Cal. L. Rev. 556 (1985), with William M. Landes & Richard
A. Posner, The Economic Structure of Tort Law (1987), Guido Calabresi,
The Cost of Accidents: A Legal and Economic Analysis (1970), and Gary T.
Schwartz, Reality in the Economic Analysis of Tort Law: Does the Tort
Law Really Deter?, 42 UCLA L. Rev. 377 (1994).
2 Alfred F. Conard et al., Automobile Accidents Costs and Payments
(1964). However more recent data reflecting widespread automobile
insurance coverage show that in the case of automobile accidents, two-
thirds of those injured receive at least some compensation. Gary T.
Schwartz, Auto No-Fault and First-Party Insurance: Advantages and
Problems, 73 S. Cal. L. Rev. 611, 624 (2000).
3 See Deborah L. Rhode, Frivolous Litigation and Civil Justice
Reform: Miscasting the Problem, Recasting the Solution, 54 Duke L.J. 447,
460 (2004) (contending that “although excessive litigation is the pathology
dominating public discussion and policy agendas, systemic research
reveals that more serious problems are undercompensation of victims”).
See also Joni Hersch & W. Kip Viscusi, Saving Lives Through Punitive
Damages, 83 S. Cal. L. Rev. 229 (2010) (proposing increase in wrongful
death damages through punitive rather than hedonic damages); Eric A.
Posner & Cass R. Sunstein, Dollars and Death, 72 U. Chi. L. Rev. 537
(2005) (supporting higher damage awards in wrongful death claims to
promote optimal deterrence).
4 See A. Mitchell Polinsky & Steven Shavell, The Uneasy Market
for Products Liability, 123 Harv. L. Rev. 1437, 1469–70 (2010) (citing data
suggesting injury victims receive 40 to 60 cents of every dollar paid for
liability insurance); Joni Hersch & W. Kip Viscusi, Tort Liability
Litigation Costs for Commercial Claims, 9 Am. L. & Econ. Rev. 330 (2007)
(costs of defending claims were 18% of insurers’ total expenditures);
Jeffery O’Connell, Why Economists and Philosophers Flunk Torts: With a
Guide to Getting a Good Grade, 53 Emory L.J. 1349 (2004); Deborah H.
Hensler et al., “Trends in Tort Litigation: The Story Behind the Statistics”
in RAND Institute for Civil Justice, R-3583-ICJ (1987).
5 Jay M. Feinman, Delay, Deny, Defend (2010).
6 See Marc A. Franklin, Replacing the Negligence Lottery:
Compensation and Selective Reimbursement, 53 Va. L. Rev. 774 (1967).
7 E.g., Stephen Sugarman, Doing Away with Personal Injury Law
(1989); W. Kip Viscusi, Toward a Diminished Role for Tort Liability: Social
Insurance, Government Regulation, and Contemporary Risks to Health
and Safety, 6 Yale J. Reg. 65 (1989); Richard B. Stewart, Crisis in Tort
Law? The Institutional Perspective, 54 U. Chi. L. Rev. 184 (1987).
8 See Jerry Mashaw & David Harfst, The Struggle for Auto Safety
(1990); Michael J. Trebilcock, Requiem for Regulators: The Passing of a
Counter-Culture, 8 Yale J. Reg. 497 (1991).
9 See Michael L. Rustad & Thomas H. Koening, Taming the Tort
Monster: The American Civil Justice System as a Battleground of Social
Theory, 68 Brook. L. Rev. 1, 66–72 (2002); Joseph Sanders & Craig Joyce,
“Off to the Races”: The 1980s Tort Crisis and the Law Reform Process, 27
Hous. L. Rev. 207 (1990).
10 See Kenneth S. Abraham, What Is a Tort Claim? An
Interpretation of Contemporary Tort Reform, 51 Md. L. Rev. 172 (1992)
(noting also that some changes favorable to plaintiffs do the same).
11 See Marc Galanter, Real World Torts: An Antidote to Anecdote, 55
Md. L. Rev. 1093 (1996). Some of the anecdotes reporting absurd awards
were not true. See Joseph A. Page, Deforming Tort Reform, 78 Geo. L.J.
649 (1990) (book review of Peter W. Huber, Liability: The Legal Revolution
and Its Consequences (1988)).
12 Brian Ostrom et al., Examining the Work of State Courts 2002, at
24 (National Center for State Courts, 2003); David J. Nye & Donald G.
Gifford, The Myth of Liability Insurance Claims Explosion: An Empirical
Rebuttal, 41 Vand. L. Rev. 909 (1988).
13 See Bernard Black et al., Stability, Not Crisis: Medical
Malpractice Claims Outcomes in Texas, 1998–2002, 2 J. Empirical Legal
Stud. 207, 210 (2005).
14 See Michael J. Saks, Do We Really Know Anything About the
Behavior of the Tort Litigation System—And Why Not?, 140 U. Pa. L. Rev.
1147 (1992).
15 Much tort reform criticism is based upon a distrust of juries, who
are collectively perceived as “running amok.” E.g., 135 Cong. Rec. S5989–
02 (June 1, 1989).
16 Bureau of Justice Statistics, Civil Bench and Jury Trials in State
Courts, 2005 (2008).
17 See Theodore Eisenberg et al., Juries, Judges, and Punitive
Damages: an Empirical Study, 87 Cornell L. Rev. 743 (2002).
18 Deborah Jones Merritt & Kathryn Ann Barry, Is the Tort System
in Crisis? New Empirical Evidence, 60 Ohio St. L.J. 315, 334, 350, 352
(1999).
19 Bureau of Justice Statistics, Civil Bench and Jury Trials in State
Courts, 2005 (2008).
20 National Safety Council, Injury Facts 91 (2003) (putting the
average economic cost of injury in automobile cases at $52,000 without
factoring in human costs).
21 David M. Studdert et al., Claims, Errors, and Compensation
Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024
(2006).
22 David A. Hyman & Charles Silver, Medical Malpractice Litigation
and Tort Reform: It’s the Incentive Stupid, 59 Vand. L. Rev. 1085, 1097
(2006).
23 See John T. Nockleby & Shannon Curreri, 100 Years of Conflict:
The Past and Future of Tort Retrenchment, 38 Loy. L.A. L. Rev. 1021,
1080–85 (2005) (discussing dramatic increases in business litigation
despite overall decreases in tort filings).
24 See A. Russell Localio et al., Relation Between Malpractice Claims
and Adverse Events Due to Negligence, 325 New Eng. J. Med. 245 (July
25, 1991) (study by health care providers of negligence in health care).
25 See Charles R. Ellington et. al., State Tort Reforms and Hospital
Malpractice Costs, 38 J. of L. Med. & Ethics 127 (2010) (finding that some
caps on noneconomic damages reduced malpractice costs and some did not,
but that no tort reform measures were associated with improved financial
solvency of hospitals).
26 See Elizabeth G. Thornburg, Judicial Hellholes, Lawsuit Climates
and Bad Social Science: Lessons from West Virginia, 100 W.Va. L. Rev.
1097 (2008) (discussing campaigns to shape public opinion in a misleading
way); Stephen Daniels & Joanne Martin, The Strange Success of Tort
Reform, 53 Emory L.J. 1225 (2004) (discussing the impact of public tort
reform campaigns on public suspicion of the tort law); Joseph Sanders &
Craig Joyce, “Off to the Races”: The 1980s Tort Crisis and the Law Reform
Process, 27 Hous. L. Rev. 207 (1990) (describing one legislative process).
27 With respect to those difficulties, see Marc Galanter, Shadow
Play: The Fabled Menace of Punitive Damages, 1998 Wis. L. Rev. 1, 13–14
(reporting that one group tried to get the American Bar Association to
repudiate a conference discussing pros and cons of tort reform and then
boycotted it); Jerome B. Meites et al., Justice James D. Heiple:
Impeachment and the Assault on Judicial Independence, 29 Loy. U. Chi.
L.J. 741 (1998) (reporting impeachment investigation after the Supreme
Court of Illinois held a tort reform statute unconstitutional and an attack
on the court by the Illinois Manufacturers’ Association).
28 See John T. Nockleby, How to Manufacture a Crisis: Empirical
Claims Behind “Tort Reform,” 86 Or. L. Rev. 533 (2007) (reviewing
empirical studies on the tort reform issue); Bernard Black et al., Stability,
Not Crisis: Medical Malpractice Claims Outcomes in Texas, 1998–2002, 2
J. Empirical Legal Stud. 207, 210 (2005) (studying closed medical
malpractice claims in Texas); Gary R. Smith, The Future of Tort Reform:
Reframing the Remedy, Re-balancing the Scales, 53 Emory L.J. 1219
(2004) (introducing a thoughtful academic symposium on tort reform
efforts).
29 See Stephen J. Carroll et al., Asbestos Litigation 104 (2005);
Deborah R. Hensler & Mark A. Peterson, Understanding Mass Personal
Injury Litigation: A Socio-legal Analysis, 59 Brook. L. Rev. 961 (1993)
(defining mass torts partly with reference to commonality of issues and
interdependence that distinguishes the half million automobile accident
cases disposed of each year).
30 Richard A. Nagareda, Mass Torts in a World of Settlement (2007);
John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class
Action, 95 Colum. L. Rev. 1343 (1995) (an excellent summary of facts,
issues, and viewpoints).
31 For factual histories of a number of mass tort litigations, see
Deborah R. Hensler & Mark A. Peterson, Understanding Mass Personal
Injury Litigation: A Socio-legal Analysis, 59 Brook. L. Rev. 961 (1993);
Francis E. McGovern, Resolving Mature Mass Tort Litigation, 69 B.U. L.
Rev. 659 (1989).
32 See John C. Coffee, Jr., Class Wars: The Dilemma of The Mass
Tort Class Action, 95 Colum. L. Rev. 1343, 1367–84 (1995) (summarizing
various forms of “collusion” between plaintiffs’ lawyers and defendants in
mass tort settlements).
33 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
34 Carnegie v. Household Int’l, Inc., 376 F.3d 656 (7th Cir. 2004).
35 The original idea, see Robert Cooter & Stephen D. Sugarman, A
Regulated Market in Unmatured Tort Claims: Tort Reform by Contract, in
New Directions in Liability Law 174 (Walter Olson ed.1988), was not
about mass torts, but can be adapted to deal with the mass tort problem.
See Peter H. Schuck, Mass Torts: an Institutional Evolutionist
Perspective, 80 Cornell L. Rev. 941 (1995).
36 Richard A. Nagareda, Mass Torts in a World of Settlement (2007).
Cf. Carrie Menkel-Meadow, Taking the Mass Out of Mass Torts:
Reflections of a Dalkon Shield Arbitrator on Alternative Dispute
Resolution, Judging, Neutrality, Gender, and Process, 31 Loy. L.A. L. Rev.
513 (1998) (discussing ADR with mediation and story-telling as part of a
mass tort resolution).
37 Cf. Robert L. Rabin, Some Thoughts on the Efficacy of a Mass
Toxics Administrative Compensation Scheme, 52 Md. L. Rev. 951, 981
(1993) (expressing cautious attitude about substituting administrative
compensation systems for mass tort litigation, but also suggesting that if
another major wave of mass tort litigation is to be foreseen, the case for a
no-fault administrative compensation system would be very strong).
38 Francis E. McGovern, Resolving Mature Mass Tort Litigation, 69
B.U. L. Rev. 659 (1989).
39 Thomas E. Willging & Emery G. Lee III, From Class Actions to
Multidistrict Consolidations: Aggregating Mass-Tort Litigation After
Ortiz, 58 U. Kan. L. Rev. 775 (2010).
40 See L. Elizabeth Chamblee, Unsettling Efficiency: When Non-
Class Aggregation of Mass Torts Creates Second-Class Settlements, 65 La.
L. Rev. 157 (2004) (discussing ethical issues in settlements of aggregated
but uncertified claims); Heather Won Tesoriero & Nathan Koppel, Vioxx
Settlement Plan Heads For Key Deadlines, Wall St. J., Jan. 10, 2008, at
B1 (outlining agreement requiring participating lawyers to recommend
settlement to all of their clients and withdraw from cases in which clients
did not accept settlement).
41 Air Transportation Safety and System Stabilization Act of 2001,
Pub.L. No. 107–42, 115 Stat 230. The Victims’ Compensation portion is
Title IV. The statute excludes tort claims for those who assert a claim to
the fund and caps tort claims for those who do not. See 3 Dobbs, Hayden &
42 The BP Oil Spill Victim Compensation Fund is one example. See
Jackie Calmes & Helene Cooper, BP Chief to Express Contrition in
Remarks to Panel, N.Y. Times at A1, June 16, 2010.
43 See Kenneth S. Abraham, The Liability Century 2–3 (2008)
(estimating that tort law accounts for approximately $200 billion dollars of
$1.5 trillion in total compensation for injury, illness and death in this
country). See alsoJulie Davies, Reforming the Tort Reform Agenda, 25
Wash. U. J.L. & Pol’y 11 (2007) (discussing the way in which tort law and
health care are connected and the way in which “uninsured Americans are
forced by need to seek de facto health coverage through the tort system
when they are injured”).
2011 & Supp.).
45 See 29 U.S.C.A. §§ 701 et seq. (structuring a vocational
rehabilitation program).
46 John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort
Class Action, 95 Colum. L. Rev. 1343, 1387 (1995).
47 See Harold Brown, Alternative Dispute Resolution, 30 Suffolk U.
L. Rev. 743 (1997) (expressing concerns in the area of commercial ADR);
William P. Zdancewicz, Alternative Dispute Resolution in the Personal
Injury Forum, 26 U. Mem. L. Rev. 1169 (1996) (supporting mediation or
arbitration in personal injury context).
48 See Glass v. Hazen Confectionery Co., 211 Mass. 99, 97 N.E. 627
(1912) (instructions, suitable appliances); Carriere v. Merrick Lumber Co.,
203 Mass. 322, 89 N.E. 544 (1909) (safe place); Thomas M. Cooley, Law of
Torts 647–62 (2d ed. 1888).
49 Farwell v. Boston & Worcester R.R., 45 Mass. 49 (1842); Priestly
v. Fowler, 3 M. & W. 1, 150 Eng. Rep. 1030 (Exch. 1837).
50 Thomas Schoenbaum, Admiralty and Maritime Law §§ 5–1
through 5–23 (2004).
51 E.g., Jaeger v. Evangelical Lutheran Holy Ghost Congregation,
219 Wis. 209, 262 N.W. 585, 101 A.L.R. 405 (1935) (safe place requirement
did not apply to transient conditions like a dangerous stack of chairs that
might fall upon the plaintiff).
52 27 Stat. 531 (1893); the coupling requirement now appears as 49
U.S.C.A. § 20302.
53 45 U.S.C.A. § 53. The Jones Act did the same for seamen. 46
U.S.C.A. § 688.
54 United States v. City of New York, 359 F.3d 83 (2d Cir. 2004)
(classifying eligibility for workers’ compensation as a benefit of city
program); Darryll M. Halcomb Lewis, An Analysis of Brown v. National
Football League, 9 Vill. Sports & Ent. L.J. 263 (2002) (arguing that
workers compensation may provide remedies superior to tort law for some
injured football players).
55 See Arthur Larson & Lex K. Larson, Workers’ Compensation §
5.10.
56 Ives v. South Buffalo Ry. Co., 201 N.Y. 271, 94 N.E. 431 (1911).
57 5 U.S.C.A. §§ 8101 et seq.
58 33 U.S.C.A. §§ 901 et seq.
59 Employers of agricultural workers, casual and domestic workers,
and a few employees may be exempted from workers’ compensation
coverage. Many statutes cover undocumented workers. See, e.g., Moyera v.
Quality Pork Int’l, 825 N.W.2d 409 (Neb. 2013).
60 Md. Code Ann. Lab. & Empl. § 9–231.1 (2008) (volunteers for state
government are covered for medical benefits under workers’
compensation); Va. Code Ann. § 65.2–102(B) (2008) (off-duty police who
undertake law enforcement or rescue activities are entitled to workers
compensation). Statutes may also specify who must pay workers’
compensation benefits where an employee has been loaned by one
employer to another. See, e.g., Cattlemen’s Steakhouse, Inc. v.
Waldenville, 318 P.3d 1105 (Okla. 2013).
61 E.g., Pinter Constr. Co. v. Frisby, 678 P.2d 305 (Utah 1984).
62 Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886 (2010).
63 See Ellyn Moscowitz & Victor J. Van Bourg, Carve-outs and the
Privatization of Workers’ Compensation in Collective Bargaining
Agreements, 46 Syracuse L. Rev. 1 (1995).
2011 & Supp.).
65 Joan T.A. Gabel et al., The New Relationship Between Injured
Worker and Employer: An Opportunity for Restructuring the System, 35
Am. Bus. L.J. 403 (1998).
66 See Brackett v. Focus Hope, Inc., 753 N.W.2d 201 (Mich. 2008)
(state statute bars compensation where employee has engaged in
“intentional and willful misconduct”).
67 See Arreola v. Administrative Concepts, 17 So.3d 792, 794 (Fla.
Dist. Ct. App. 2009) (illegal status of employee was not a bar to receiving
workers compensation benefits but providing a false social security
number with the purpose of obtaining those benefits was fraud which was
a bar); Travis M. Wheeler, Grammatico v. Industrial Commission:
Invalidating Statutes Making Alcohol or Drug Use a Bar to Workers’
Compensation Claims in Arizona, 48 Ariz. L. Rev. 211 (2006).
68 E.g., Haslam’s Case, 451 Mass. 101, 883 N.E.2d 949 (2008); Harris
v. Westin Mgmt. Co. East, 230 S.W.3d 1 (Mo. 2007); Heath v. Montana
Mun. Ins. Auth., 959 P.2d 480 (Mont. 1998).
69 E.g., Khan v. Parsons Global Servs., Ltd., 428 F.3d 1079 (D.C. Cir.
2005) (kidnapped employee was “traveling employee”); Mulready v.
University Research Corp., 360 Md. 51, 756 A.2d 575 (2000) (fall in
bathtub while preparing to give presentation away from home
compensable); Bob Allyn Masonry v. Murphy, 183 P.3d 126 (Nev. 2008)
(special errand); Leordeanu v. American Protection Ins. Co., 330 S.W.3d
239 (Tex. 2010) (claimant was on her way home from an employer-
sponsored dinner and had the intention to stop first an employer-provided
storage facility to empty her company car of business supplies); Ball-
Foster Glass Container Co. v. Giovanelli, 163 Wash.2d 133, 177 P.3d 692
(2008) (traveling employee injured while walking to a park; injury
compensable).
70 E.g., Hersh v. County of Morris, 86 A.3d 140 (N.J. 2014) (injuries
from parking garage not owned by employer to place of employment); Cf.
Jaeger Baking Co. v. Kretschmann, 96 Wis.2d 590, 292 N.W.2d 622 (1980)
(statute making travel between parking lot and work site compensable did
not apply to worker who arrived by bus and was on the parking lot-to-work
route but never in the parking lot).
71 Ray Bell Constr. Co. v. King, 281 Ga. 853, 642 S.E.2d 841 (2007);
K-Mart Corp. v. Herring, 188 P.3d 140 (Okla. 2008) (night watchman who
was shot during a trip to a fast-food restaurant during a 7-hour shift with
no scheduled breaks was still acting in the course of employment); City of
Eugene v. McDermed, 250 Or. App. 572, 282 P.3d 947 (2012) (police officer
hit by a car while crossing the street on a break to get a cup of coffee);
Gooden v. Coors Technical Ceramic Co., 236 S.W.3d 151 (Tenn. 2007)
(employee’s heart attack while playing basketball on company premises
during work break was in the course of employment).
72 Frost v. Salter Path Fire & Rescue, 639 S.E.2d 429 (N.C. 2007).
73 Wait v. Travelers Indem. Co., 240 S.W.3d 220 (Tenn. 2007) (injury
that occurred at plaintiff’s home during her lunch hour took place “in the
course of employment”).
74 Courts may conflate “proximate cause” with “arising out of
employment,” however, when denying compensation. See, e.g., Sapko v.
State, 305 Conn. 360, 44 A.3d 827 (2012) (employee’s ingestion of excess
quantity of prescribed medications, for reasons that had no relation to his
employment, “constituted an intervening event that broke the chain of
causation”).
75 Hartford Accident & Indem. Co. v. Cardillo, 112 F.2d 11 (D.C.
1940); but see Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001)
(discussing standards for and limits of the rules).
76 Guillory v. Interstate Gas Station, 653 So.2d 1152 (La. 1995);
Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So. 2d 294 (1952)
(lover’s spouse shot employee). Factual details are determinative and there
are many factual variations. See, e.g., Lane v. Industrial Comm’n of Ariz.,
218 Ariz. 44, 178 P.3d 516 (Ct. App. 2008) (off-duty police officer’s shooting
did not have the necessary quantum of connection to the employment to be
compensable).
77 E.g., Jivan v. Economy Inn & Suites, 370 Ark. 414, 260 S.W.3d
281 (2007) (claimant’s duties as assistant hotel manager required her to
reside at the hotel, which put her at more risk than someone who did not
live on premises); Brady v. Louis Ruffolo & Sons Constr. Co., 143 Ill.2d
542, 578 N.E.2d 921, 161 Ill.Dec. 275 (1991) (if risk is not related to
employment it must be peculiar or increased by employment); Mitchell v.
Clark County Sch. Dist., 111 P.3d 1104 (Nev. 2005) (liability rejected for
fall for no identified reason; rejecting positional risk test that but-for cause
is sufficient when risk is neutral).
78 Circle K Store No. 1131 v. Industrial Comm’n of Ariz., 165 Ariz.
91, 796 P.2d 893 (1990); Logsdon v. Isco Co., 260 Neb. 624, 618 N.W.2d
667 (2000) (unexplained fall in the course of employment is compensable
as a neutral risk to which the positional risk test applies); cf. Wilson v.
State Farm Ins., 326 Or. 413, 952 P.2d 528 (1998) (tendon injured when
employee carrying out normal tasks “skip stepped”). But see Johme v. St.
John’s Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012) (claimant who
twisted her ankle and fell after making coffee at work; because this was a
risk to which the claimant would have been exposed in her non-
employment life, injury not compensable); Dykhoff v. Xcel Energy, 840
N.W.2d 821 (Minn. 2013) (slip and fall where floor was not hazardous and
employment did not create special hazard).
79 E.g., Wait v. Travelers Indem. Co., 240 S.W.3d 220 (Tenn. 2007)
(criminal attack on telecommuter was in the course of employment, but
did not arise out of employment since “there is nothing to indicate that she
was targeted because of her association with her employer or that she was
charged with safeguarding her employer’s property”); see also Feiereisen v.
Newpage Corp., 5 A.3d 669 (Me. 2010) (injury did not arise out of and in
the course of claimant’s employment where he was injured while traveling
to a workers’ compensation mediation for a previous injury).
80 Workers’ compensation statutes themselves may define particular
types of compensable injuries. Where that is the case, a claimant who fails
to prove that he has an “injury” under the statute will be entitled to no
compensation. See, e.g., State ex rel. Baker v. Coast to Coast Manpower,
LLC, 129 Ohio St.3d 138, 950 N.E.2d 924 (2011).
81 E.g., Mullins v. Tanksleary, 376 P.2d 590 (Okla. 1962); Barkley v.
Corrections Div., 111 Or.App. 48, 825 P.2d 291 (1992).
82 PF Chang’s v. Industrial Comm’n of Ariz., 166 P.3d 135 (Ariz. Ct.
App. 2007); Wal-Mart Stores, Inc. v. Reinholtz, 955 P.2d 223 (Okla. 1998)
(supervisor raped plaintiff, employer responsible to make compensation for
resulting psychological harm).
83 Nelson v. Ponsness-Warren Idgas Enters., 126 Idaho 129, 879
P.2d 592 (1994) (carpal tunnel syndrome not “accident,” not compensable);
Young v. Melrose Granite Co., 152 Minn. 512, 189 N.W. 426 (1922)
(atrophy of muscles through years of vibration working at a machine not
compensable).
84 Schlup v. Auburn Needleworks, Inc., 239 Neb. 854, 479 N.W.2d
440, 14 A.L.R.5th 963 (1992) (carpel tunnel syndrome compensable when
it developed over a few months); Johannesen v. New York City Dep’t of
Hous. Pres. & Dev., 84 N.Y.2d 129, 638 N.E.2d 981, 615 N.Y.S.2d 336
(1994) (asthma from office smoke could be an accident); cf. Noble v.
Lamoni Prods., 512 N.W.2d 290 (Iowa 1994) (carpel tunnel syndrome
compensable where “accident” was not a statutory requirement).
85 See Martinez v. Indus. Comm’n of Ariz., 192 Ariz. 176, 962 P.2d
903 (1998); Gartrell v. Department of Corr., 259 Conn. 29, 787 A.2d 541
(2002); McCamey v. District of Columbia Dep’t of Employment Servs., 947
A.3d 1191 (D.C. 2008); Rakestraw v. General Dynamics Land Sys., Inc.,
666 N.W.2d 199 (Mich. 2003).
86 Virginia Elec. & Power Co. v. Cogbill, 223 Va. 354, 288 S.E.2d 485
(1982) (sitting in a bent position all day too similar to employee’s ordinary
work, not compensable); Wyoming Workers’ Comp. Div. v. Harris, 931 P.2d
255 (Wyo. 1997) (changing tire on a large trailer sufficient).
87 Bush v. Industrial Comm’n, 136 Ariz. 522, 667 P.2d 222 (1983);
Baggett v. Industrial Comm’n, 201 Ill.2d 187, 775 N.E.2d 908, 266 Ill.Dec.
836 (2002) (heart attack supposedly resulting from job stress; the stress
must be more than public generally subjected to, but need not be unusual
in the job or more than other employees subjected to; special susceptibility
of employee no defense).
88 T.W.M. Custom Framing v. Industrial Comm’n, 198 Ariz. 41, 6
P.3d 745 (Ct. App. 2000) (injury caused depression which caused suicide,
compensable); McCamey v. District of Columbia Dep’t of Employment
Servs., 947 A.3d 1191 (D.C. 2008); Simmons v. Comfort Suites Hotel, 968
A.2d 1123 (Md. Ct. Spec. App. 2009) (home security system compensable
for employee who had been attacked with a bat during a robbery and left
for dead); Vredenburg v. Sedgwick CMS, 188 P.3d 1084 (Nev. 2008);
Anderson v. Baptist Med. Ctr., 343 S.C. 487, 541 S.E.2d 526 (2001)
(physical injury aggravating preexisting depression, aggravation
compensable).
89 In Baggett v. Industrial Comm’n, 201 Ill.2d 187, 775 N.E.2d 908,
266 Ill.Dec. 836 (2002), the court refused to import special proof
requirements frequently applied in the mental/mental cases. Some other
authority, however, requires a sudden event or unusual or abnormal stress
in the case of stress induced heart attacks. See Anderson v. Baptist Med.
Ctr., 343 S.C. 487, 541 S.E.2d 526 (2001).
90 See Boutwell v. Domino’s Pizza, 25 Kan.App. 2d 110, 959 P.2d 469
(1998); Kerans v. Porter Paint Co., 61 Ohio St.3d 486, 575 N.E.2d 428
(1991) (mental injury from non-physical sexual harassment not
compensable and outside the compensation system, hence employee has
potential tort claim against employer); Emmanuel S. Tipon, Annotation,
Right to Workers’ Compensation for Emotional Distress or Like Injury
Suffered by Claimant as Result of Sudden Stimuli Involving Nonpersonnel
Action—Compensability under Particular Circumstances, 84 A.L.R.5th
249 (2000).
91 Spencer v. Time Warner Cable, 717 N.Y.S.2d 711 (App. Div. 2000)
(office worker taking large number of customer calls, compensation
denied); Anderson v. Baptist Med. Ctr., 343 S.C. 487, 541 S.E.2d 526
(2001). Statutes may impose the requirement of unusual stress. See
Williams v. State Dep’t of Revenue, 938 P.2d 1065 (Alaska 1997) (applying
such a statute).
92 Brown v. Quik Trip Corp., 641 N.W.2d 725 (Iowa 2002) (two
frightening robberies; employee’s stress need not be greater than other
similarly situated where emotional harm resulted from sudden traumatic
event); Partin v. Merchants & Farmers Bank, 810 So.2d 1118 (La. 2002)
(statute so providing); McGrath v. State Dep’t of Pub. Safety, 159 P.3d 239
(Nev. 2007) (status as a patrol woman not enough by itself).
93 See City of Fort Smith v. Brooks, 40 Ark.App. 120, 842 S.W.2d 463
(1992) (police officer forced to kill a man in the line of duty suffered
disability when later abnormal job stresses added to the strain).
94 Scheduled injuries, under which a fixed sum is paid for, say, loss
of a thumb, may be regarded as a partial exception. Some statutes also
allow a relatively small payment for bodily disfigurement to take care of
cases in which, for example, a worker is castrated but is not disabled from
working. For a discussion of bodily disfigurement, see Rison v. Air Filter
Sys., Inc., 707 A.2d 675 (R.I. 1998).
95 Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480 (Tenn. 2003)
(denying recovery for employee’s fear of AIDS from tactile contact with
fellow worker’s blood when there was no proof that blood was HIV
positive).
96 Johannesen v. New York City Dep’t of Hous. Pres. & Dev., 84
N.Y.2d 129, 638 N.E.2d 981, 615 N.Y.S.2d 336 (1994) (exposure to
secondhand tobacco smoke aggravating previous condition compensable as
accident under rule that gradual development over a reasonably definite
time period is sufficient).
97 See, e.g., Potter v. Department of Labor & Indus., 289 P.3d 727
(Wash. Ct. App. 2012) (denying compensation for an alleged occupational
disease, multiple chemical sensitivity disorder, in claim brought by lawyer
claiming her disorder arose from her employment in her former law firm;
claimant failed to show that her disease arose from conditions of her
particular occupation, as opposed to condition coincidentally occurring in
her workplace).
98 Mack v. County of Rockland, 71 N.Y.2d 1008, 1009, 525 N.E.2d
744, 530 N.Y.S.2d 98, 99 (1988).
99 Brunell v. Wildwood Crest Police Dep’t, 822 A.2d 576 (N.J. 2003).
100 Alaska Stat. § 23.30.121 (2008) (presumption of coverage for
firefighters with disability claims related to certain illnesses such as
respiratory diseases, certain cancers, and cardiovascular problems that
occur within 72 hours after exposure to a fire).
101 Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 814 A.2d
1069 (2003); Manske v. Workforce Safety & Ins., 748 N.W.2d 394 (N.D.
2008) (citing cases and statutes from other jurisdictions).
102 Deschenes v. Transco, Inc., 288 Conn. 303, 953 A.2d 13 (2008)
(placing burden on employer to prove that the disability resulted in part
from non-occupationally-related disease, and that the claimant’s
occupation had no influence on the development of the non-occupational
disease).
103 Union Carbide Corp. v. Industrial Comm’n, 196 Colo. 56, 581 P.2d
734 (1978); cf. Bouse v. Fireman’s Fund Ins. Co., 932 P.2d 222 (Alaska
1997) (last employer responsible if second injury was a substantial factor
in causing disability).
104 Ex Parte Weaver, 871 So. 2d 820 (Ala. 2003) (former employer,
whose negligence during employment resulted in injury after employment
was terminated was not immune, discussing cases, including one to the
contrary).
105 This immunity may also extend to protect employers against tort
suits by employees of independent contractors. Tatera v. FMC Corp., 328
Wis. 2d 320, 786 N.W.2d 810 (2010).
106 See, e.g., LeFiell Mfg. Co. v. Superior Court, 55 Cal.4th 275, 145
Cal.Rptr.3d 543, 282 P.3d 1242 (2012); see also Pittman v. Western Eng’g
Co., Inc., 283 Neb. 913, 813 N.W.2d 487 (2012) (spouse of employee killed
on the job was barred by exclusivity provision from suing employer for
negligent infliction of emotional distress).
107 Estate of Moulton v. Puopolo, 5 N.E.3d 908 (Mass. 2014); Saab v.
Massachusetts CVS Pharmacy, LLC, 452 Mass. 564, 896 N.E.2d 615
(2008). But see Lewis v. Gilmore, 366 S.W.3d 522 (Mo. 2012).
108 Snyder v. Michael’s Stores, Inc., 16 Cal.4th 991, 945 P.2d 781, 68
Cal.Rptr.2d 476 (1997); Meyer v. Burger King Corp., 26 P.3d 925 (Wash.
2001).
109 Mitchell v. Sanborn, 536 N.W.2d 678 (N.D. 1995); Progressive
Halcyon Ins. Co. v. Philippi, 754 N.W.2d 646 (S.D. 2008).
110 O’Connell v. Chasdi, 400 Mass. 686, 511 N.E.2d 349 (1987) (co-
employee liable for assault, battery, intentional infliction of emotional
distress); Stringer v. Minnesota Vikings Football Club, LLC, 705 N.W.2d
746 (Minn. 2005) (holding that team medical services coordinator was not
guilty of an intentional tort). State statutes may contain specific provisions
on this topic. See, e.g., Burns v. Smith, 214 S.W.3d 335 (Mo. 2007).
111 E.g., McQuade v. Draw Tite, Inc., 659 N.E.2d 1016 (Ind. 1995); see
Annotation, Workers’ Compensation Immunity as Extending to One
Owning Controlling Interest in Employer Corporation, 30 A.L.R.4th 948
(1984).
112 Lyon v. Barrett, 89 N.J. 294, 445 A.2d 1153 (1982) (plaintiff
employed by professional law corporation wholly owned by individual
attorney could recover compensation from corporation and sue the
individual attorney for negligence as landlord).
113 See Ioerger v. Halverson Constr. Co., 232 Ill.2d 196, 327 Ill.Dec.
524, 902 N.E.2d 645 (2008) (joint venturers); Thompson v. Bernard G.
Janowitz Constr. Corp., 301 A.D.2d 588 754 N.Y.S.2d 50 (2003).
114 Currier v. Amerigas Propane, L.P., 144 N.H. 122, 737 A.2d 1118
(1999).
115 See, reflecting the usual immunity of insurers and some cases to
the contrary, Frank J. Wozniak, Annotation, Breach of Assumed Duty to
Inspect Property as Ground for Liability to Third Party, 13 A.L.R.5th 289
(1993). The immunity does not apply to the intentional misconduct of the
insurer. Aquilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005).
116 Gunderson v. Harrington, 632 N.W.2d 695 (Minn. 2001) (sole
shareholder-manager of corporate employer); Ingalls v. Standard Gypsum,
LLC, 70 S.W.3d 252 (Tex. App. 2001).
117 Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 166 Ill.Dec. 1,
585 N.E.2d 1023 (1991); Lambertson v. Cincinnati Corp., 312 Minn. 114,
257 N.W.2d 679, 100 A.L.R. 3d 335 (1977).
118 Joel E. Smith, Annotation, Modern Status of Effect of State
Workmen’s Compensation Act on Right of Third-Person Tortfeasor to
Contribution or Indemnity from Employer of Injured or Killed Workman,
100 A.L.R.3d 350 (1980).
119 Allied-Signal, Inc. v. Fox, 623 So.2d 1180 (Fla. 1993); DaFonte v.
Up-Right, Inc., 2 Cal.4th 593, 7 Cal.Rptr.2d 238, 828 P.2d 140 (1992).
120 See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996)
(holding third-person tortfeasor fully liable).
121 United States v. Lorenzetti, 467 U.S. 167 (1984).
122 Aitken v. Industrial Comm’n, 183 Ariz. 387, 904 P.2d 456 (1995).
123 Travelers Indem. Co. of Am. v. Jarrells, 927 N.E.2d 374 (Ind.
2010).
124 Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 606 A.2d 444
(1992).
125 Falline v. GNLV Corp., 107 Nev. 1004, 823 P.2d 888 (1991) (action
for negligent or fraudulent delay in payment permitted).
126 Bell v. Industrial Vangas, Inc., 30 Cal.3d 268, 637 P.2d 266, 179
Cal.Rptr. 30 (1981). Cal. Lab. Code § 3602(b)(3) now limits this to cases in
which the product was sold by the employer-manufacturer to third
persons. See also Price v. Howard, 236 P.3d 82 (Okla. 2010).
127 Duprey v. Shane, 39 Cal. 2d 781, 249 P.2d 8 (1952). Where the
employer is a health care provider that furnishes medical care causing
injury, see Hollingshed v. Levine, 307 A.D.2d 850, 763 N.Y.S.2d 595 (2003)
(patient went to hospital emergency room not as employee but as private
patient). A California statute has trimmed the use of the dual capacity
doctrine in that state. See Cal. Lab. Code § 3602.
128 See Suburban Hosp., Inc. v. Kirson, 362 Md. 140, 763 A.2d 185
(2000); Payne v. Galen Hosp. Corp., 28 S.W.3d 15 (Tex. 2000).
129 E.g., Johnson v. Rental Unif. Serv. of Greenville, S.C., Inc., 316
S.C. 70, 447 S.E.2d 184 (1994).
130 See Suburban Hosp., Inc. v. Kirson, 362 Md. 140, 763 A.2d 185
(2000) (rejecting dual capacity, so hospital that negligently treated injured
employee was liable for compensation, not for tort damages; but perhaps
recognizing potential for “dual transaction” liability of employer leasing
negligently maintained apartment).
131 E.g., N.J. Stat. Ann. § 34:15–8.
2011 & Supp.).
133 See Bakerman v. The Bombay Co., 961 So.2d 259 (Fla. 2007)
(liability found where employer engaged in conduct that was substantially
certain to result in injury to the employee); Alexander v. Bozeman Motors,
Inc., 356 Mont. 439, 234 P.3d 880 (2010) (fact question regarding
certainty); Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 927
N.E.2d 1066 (2010); Jordan v. Western Farmers Elec. Co-op., 290 P.3d 9,
34 I.E.R. Cas. (BNA) 1128 (Okla. 2012) (pleading sufficiently alleged that
employer acted with knowledge that the employee’s injury was
substantially certain to result from the employer’s conduct; thus action
was not barred by exclusivity provision). Mere risk, however great, is not
enough to show intent under the traditional concept of substantial
certainty.
134 See Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985);
Danos v. Boh Bros. Constr. Co., LLC, 132 So.3d 958 (La. 2014); Tomeo v.
Thomas Whitesell Constr. Co., 176 N.J. 366, 823 A.2d 769 (2003)
(deliberate risk falls short of intent to harm with substantial certainty).
Nor is certainty in the statistical sense that the defendant’s activity is
“certain” to cause harm sooner or later if it is carried on for a longer period
of time. See Restatement (Third) of Torts: Liability for Physical Harm § 1
cmt. e (2010).
135 Rudisill v. Ford Motor Co., 709 F.3d 595 (6th Cir. 2013) (Ohio law;
deliberate intent to cause injury); Harris v. State, Dep’t of Corr., 294 P.3d
382 (Mont. 2013) (employer specifically intended to cause injury); Bowden
v. Young, 120 So.3d 971 (Miss. 2013). The court in Blankenship v.
Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572
(1982), thought that substantial certainty intent could be shown if the
employer knew certain diseases were being contracted in plant with
noxious fumes. The Ohio legislature apparently took a different view in
enacting Ohio Rev. Code Ann. § 2745.01, but that statute was then held
unconstitutional in Johnson v. BP Chems., Inc., 85 Ohio St.3d 298, 707
N.E.2d 1107 (1999). A subsequent statute which limited suits against
employers to cases in which there was an intent to injure or belief that
injury was substantially certain was upheld. See Kaminski v. Metal &
Wire Prods. Co., 927 N.E.2d 1066 (Ohio 2010).
136 Pixley v. Pro-Pak Indus., Inc., 28 N.E.3d 1249 (Ohio 2014)
(“deliberate intent to cause injury to an employee”); Walston v. Boeing Co.,
334 P.3d 519 (Wash. 2014) (“actual knowledge of certain injury”); Coleman
Estate ex rel. Coleman v. R.M. Logging, Inc., 696 S.E.2d 28 (W.Va. 2010)
(test is whether employer actually possessed knowledge of specific unsafe
working condition and of the strong probability of serious injury or death
presented by that condition). These decisions might be viewed as efforts to
preserve tort liability, not for intentional torts as such, but for atrocious
misconduct by the employer.
137 Fermino v. Fedco, 7 Cal.4th 701, 30 Cal.Rptr.2d 18, 872 P.2d 559
(1994). If the false imprisonment or other intentional tort actually causes
physical harm to the worker, his claim is logically limited to the workers’
compensation award. Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385
(Iowa 2000).
138 See Nassa v. Hook-SupeRx, Inc., 790 A.2d 368 (R.I. 2002);
Aslakson v. Gallagher Bassett Servs., Inc., 300 Wis.2d 92, 729 N.W.2d 712
(2007).
139 Howland v. Balma, 143 Cal.App.3d 899, 192 Cal.Rptr. 286 (1983);
Foley v. Polaroid Corp., 381 Mass. 545, 413 N.E.2d 711 (1980); Nassa v.
Hook-SupeRx, Inc., 790 A.2d 368 (R.I. 2002). When an emotional injury is
compensable under the workers’ compensation act, claims for it are barred
by the exclusivity provisions. See Tennaro v. Ryder Sys., Inc., 832 F.Supp.
494 (D. Mass. 1993).
140 Social Security Administration, Annual Statistical Report of the
Social Security Disability Insurance Program 2009, at 2 (2010).
141 Id. at 11.
142 Id. at 18.
143 Id. at 21.
144 See Harvey McCormick, Social Security Claims and Procedures
(6th ed. 2009).
145 Under the portion called OASI, individuals have paid Social
Security taxes, but these taxes are not sufficient to pay the retirement or
disability benefits. Under the portion called SSI, the system is a form of
welfare for persons of inadequate means.
146 42 U.S.C.A. § 423(d). Blind persons over 55 years of age are
defined as disabled if blindness prevents substantial gainful employment
using the skills they previously used. See also Castile v. Astrue, 617 F.3d
923 (7th Cir. 2010) (claimant could perform sedentary work and therefore
did not meet the definition of disability in the statute).
147 42 U.S.C.A. § 423(d)(2)(A). The type of work for which the
claimant is qualified must, however, exist either in the “region” where she
lives or in several regions of the country.
148 E.g., Hardt v. Reliance Standard Life Ins. Co., 560 U.S 242, 130
S.Ct. 2149 (2010) (neuropathy); McLain v. Schweiker, 715 F.2d 866 (4th
Cir. 1983) (nervous disorders, inadequate personality); Foreman v.
Callahan, 122 F.3d 24 (8th Cir. 1997) (limited intellectual ability). See also
Social Security Administration, Annual Statistical Report of the Social
Security Disability Insurance Program 2009, at 16 (2010) (listing
musculoskeletal and mental issues as the cause of over 50% of all worker
disability claims).
149 See 42 U.S.C.A. § 423(d)(5)(A); Lingenfelter v. Astrue, 504 F.3d
1028 (8th Cir. 2007); Kelley v. Callahan, 133 F.3d 583 (8th Cir. 1998).
Professor Pryor believes that too little scope is given for findings of
disability based upon pain. She argues that pain professionals can detect
malingering and that no special rules are needed to fence-out that
possibility. See Ellen Smith Pryor, Compensation and the Ineradicable
Problems of Pain, 59 Geo. Wash. L. Rev. 239 (1991).
150 20 C.F.R. part 404, Subpart P, Appendix I.
151 See Sullivan v. Zebley, 493 U.S. 521 (1990); Vossen v. Astrue, 612
F.3d 1011 (8th Cir. 2010) (claimant did not prove listed impairment,
consequently administrative law judge had to consider issues related to
claimant’s residual functional capacity); Colon v. Apfel, 133 F.Supp.2d 330
(S.D.N.Y. 2001) (discussing qualification standards for children).
152 Jordan v. Commissioner of Soc. Sec., 548 F.3d 417(6th Cir. 2008).
153 Lockwood v. Commissioner Soc. Sec. Admin., 616 F.3d 1068 (9th
Cir. 2010) (ALJ could consider a person one month away from her 55th
birthday as a person “approaching advanced age” rather than a person of
“advanced age”).
154 Heckler v. Campbell, 461 U.S. 458 (1983).
155 See Frank S. Boch, Medical Proof, Social Policy, and Social
Security’s Medically Centered Definition of Disability, 92 Cornell L. Rev.
189 (2007) (although disability benefits claimants are less than 20% of the
total number of Social Security claims, “determining whether disability
benefit claimants are disabled consumes the bulk of the administrative
resources of the Social Security Administration” as 4.5 million new
disability claims were filed in 2004 alone).
156 Stephen D. Sugarman, Doing Away with Personal Injury Law
(1989).
157 Frank S. Bloch, et al., Developing Full and Fair Evidentiary
Record in a Nonadversary Setting: Two Proposals for Improving Social
Security Disability Adjudications, 25 Cardozo L. Rev. 1 (2003).
158 See Kenneth S. Abraham, The Liability Century 69 (2008)
(putting the amount of insurance against liability for auto accidents in the
United States at 110 billion dollars per year).
159 See Polinsky & Shavell, supra n.4.
160 Kenneth S. Abraham, The Liability Century 69 (2008) (noting that
in addition to the 110 billion dollars a year of liability insurance, people in
the U.S. spend an additional 70 billion dollars on first-party insurance
against damage caused by collision or other vehicle-related property
damage).
161 Robert E. Keeton & Jeffrey O’Connell, Basic Protection for the
Traffic Victim (1965).
162 See Gary T. Schwartz, Auto No-Fault and First-Party Insurance:
Advantages and Problems, 73 S. Cal. L. Rev. 611 (2000); Roger C.
Henderson, No-Fault Insurance for Automobile Accidents: Status and
Effect in the United States, 56 Or. L. Rev. 287 (1977).
163 See N.Y. Ins. Law §§ 5104, 5102(d) (defining serious injury); Toure
v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 774 N.E.2d 1197 (2002)
(holding that there must be “objective proof” by an expert—usually a
medical expert—to prove serious injury).
164 Gary T. Schwartz, Auto No-Fault and First-Party Insurance:
Advantages and Problems, 73 S. Cal. L. Rev. 611 (2000).
165 J. David Cummins, et al., The Incentive Effects of No-Fault
Automobile Insurance, 44 J.L. & Econ. 427 (2001) (studying empirically
no-fault and tort compensation systems and finding support for the
hypothesis that no-fault is significantly associated with higher fatal
accident rates than tort law).
166 Gary Schwartz, Auto No-Fault and First-Party Insurance:
Advantages and Problems, 73 S. Cal. L. Rev. 611 (2000) (arguing that the
no-fault plan should have about the same deterrent effect as tort law if
premiums are experience rated).
167 Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d
556, 567, 890 N.E.2d 233, 860 N.Y.S.2d 471 (2008) (Smith, J., dissenting)
(“The impact of fraud on this State’s no-fault system is notorious.”).
168 Air Transportation Safety and System Stabilization Act
(ATSSSA), Pub.L. No. 107–42, 115 Stat. 230 (2001). Uncodified sections
are available in the United States Code Annotated notes following 49
U.S.C.A. § 40401. They are cited here by the section numbers appearing in
the original enactment, e.g., ATSSSA § 405.
169 ATSSSA, supra note 168, § 408 (b). A comprehensive report
detailing the fund’s structure, process and payouts is Kenneth R.
Feinberg, et al., Final Report of the Special Master for the September 11th
Victim Compensation Fund of 2001 (2004) (available at
http://www.justice.gov/final_report.pdf).
170 See 28 C.F.R. § 104.41 (“the Special Master shall take into
consideration the harm to the claimant, the facts of the claim, and the
individual circumstances of the claimant. The individual circumstances of
the claimant may include the financial needs or financial resources of the
claimant or the victim’s dependents and beneficiaries”).
171 The United States Department of Justice published tables on the
internet. Users could identify the wage loss and age of the deceased victim,
then read out the presumed damages. Formal regulations on presumed
losses are contained in 28 C.F.R. §§ 104.41 to 104.45.
172 ATSSSA, supra note 168, § 405(a)(3). The exclusion results
because all claims must be filed within two years from the time
regulations were promulgated. Latent injuries to rescue workers and
pregnant women exposed to the “toxic brew” of chemicals released from
the ruins of the WTC were thus excluded. Robert L. Rabin, Indeterminate
Future Harm in the Context of September 11, 81 Va. L. Rev. 1831 (2002).
173 ATSSSA, supra note 168, § 405(b)(6). Collateral sources are
defined to include life insurance benefits. ATSSSA § 402 (6).
174 28 C.F.R. § 104.44 (“The presumed non-economic losses for
decedents shall be $250,000 plus an additional $100,000 for the spouse
and each dependent of the deceased victim. Such presumed losses include
a noneconomic component of replacement services loss”).
175 See Final Report of the Special Master, supra note 169.
176 Id. at 110.
177 Id. at 1.
178 See, e.g., In re September 11 Litig., 280 F.Supp.2d 279 (S.D.N.Y.
2003) (holding that the airlines owed a duty of reasonable care to those on
the ground but not deciding breach and causation issues).
179 See Robert L. Rabin, The Renaissance of Accident Law Plans
Revisited, 64 Md. L. Rev. 699 (2005).
180 John G. Cullhane, Tort, Compensation, and Two Kinds of Justice,
55 Rutgers L. Rev. 1027 (2003) (arguing that the benefits are tort-like but
not justified by considerations of corrective justice, since the government is
not the wrongdoer, and that the distributive justice aspects of the benefits
are unjustified because similar benefits are not provided to other victims
of terrorism or disaster).
181 See Erin G. Holt, The September 11 Victim Compensation Fund:
Legislative Justice Sui Generis, 59 N.Y.U. Ann. Surv. Am. L. 513 (2004).
182 See Linda S. Mullinex, The Future of Tort Reform: Possible
Lessons From the World Trade Center Victim Compensation Fund, 53
Emory L.J. 1315 (2004).
183 See Ian Urbina, BP Settlements Likely to Shield Top Defendants,
N.Y. Times, August 20, 2010, at A1.
18430 U.S.C.A. §§ 901 et seq., later repealed as noted in West Virginia
CWP Fund v. Stacy, 671 F.3d 378 (4th Cir. 2011).
185 42 U.S.C.A. §§ 300aa–1 et seq.
186 See Joanna B. Apolinsky & Jeffrey A. Van Detta, Rethinking
Liability for Vaccine Injury, 19 Cornell J.L. & Pub. Pol’y 537 (2010)
(identifying six different classes of risk).
187 See Zatuchni v. Secretary of Health & Human Servs., 516 F.3d
1312 (Fed. Cir. 2008) (allowing recovery for both death benefit and for
lifetime economic losses).
188 Judge (now Justice) Breyer summarized the act succinctly in
Schafer v. American Cyanamid Co., 20 F.3d 1 (1st Cir. 1994). The Court
held that the NCVIA preempts all design defect claims against vaccine
manufacturers by plaintiffs who seek compensation for injuries caused by
the side-effects of vaccines, in Bruesewitz v. Wyeth LLC, 562 U.S. 223, 131
S.Ct. 1068, 179 L.Ed.2d 1, Prod. Liab. Rep. (CCH) P 18580 (2011).
189 See Katherine E. Strong, Note, Proving Causation Under the
Vaccine Injury Act: A New Approach for a New Day, 75 Geo. Wash. L. Rev.
426 (2007). Before establishing causation, the claimant must prove that
she actually has the condition she alleges. See, e.g., Hibbard v. Secretary
of Health & Human Servs., 698 F.3d 1355 (Fed. Cir. 2012) (Special Master
did not err in focusing on that question, and did not act arbitrarily in
finding that the claimant did not prove by a preponderance of the evidence
that she actually had autonomic neuropathy).
190 The table is enacted and codified at 42 U.S.C.A. § 300aa–14.
191 See Shalala v. Whitecotton, 514 U.S. 268 (1995) (holding against
the claimant where evidence indicated that the condition in question
existed before the vaccination). See also Russell G. Donaldson, Annotation,
Construction and Application of National Childhood Vaccine Injury Act (42
U.S.C.A. §§ 300aa et seq.), 129 A.L.R. Fed. 1 (1996).
192 See Michael J. Donovan, The Impact of “Hurricane” Hannah: The
Government’s Decision to Compensate One Girl’s Vaccine Injury Case
Could Drastically Alter the Face of Public Health, 50 Jurimetrics J. 229
(2010).
193 Data from the Department of Health and Human Services show
that between 1988 and 2010 over 13000 claims had been filed, but only
7000 adjudicated. The average time to adjudication was 2–3 years. Of the
adjudicated claims approximately 2500 were granted and 4500 denied.
The vast majority of unadjudicated claims were autism claims. See U.S.
Department of Health and Human Services, National Vaccine Injury
Compensation Program, Statistics Report, July 14 2010 (available at
http://www.hrsa.gov/vaccine compensation/statistics_report.htm).
194 Elizabeth A. Breen, A One Shot Deal: The National Childhood
Vaccine Injury Act, 41 Wm. & Mary L. Rev. 309 (1999).
195 Claimants have a markedly better chance with some special
masters than with others. See Derry Ridgway, No-Fault Vaccine
Insurance: Lessons from the National Vaccine Injury Compensation
Program, 24 J. Health Pol’y & L. 59 (1999).
196 Paul LeBel, John Barleycorn Must Pay: Compensating the Victims
of Drinking Drivers 135–48 (1992).
931
Part VIII
DIGNITARY AND ECONOMIC TORTS
Distinguishing physical harm torts. Beginning with this

chapter, the subject-matter focus turns to stand-alone dignitary
and economic harms. Stand-alone or “pure” dignitary or economic
harms occur without the direct invasion of the plaintiff’s legal
interest in physical security of her person or property. In contrast,
the preceding chapters were devoted to cases in which the core
harm was to the plaintiff’s interest in physical security of persons
or things. The stand-alone dignitary or economic harm discussed in
the chapters that follow are often communicative torts—they result
from the defendant’s use of words or other means of
communication. To defame, to persuade someone to cease doing
business with the plaintiff, to give the plaintiff misinformation in a
business deal are examples of words that may be actionable
without causing physical harm. Many dignitary and economic torts
are also relational torts; they damage the plaintiff’s relationship,
personal or economic, with other persons, but again they cause no
direct physical harm.
Different rules and approaches. The distinction between stand-
alone dignitary or economic harm and physical harm to persons
and property is not merely an idle classification. Both the explicit
rules and the guiding policies of dignitary and economic torts
usually differ radically from the rules of negligence and the rules of
trespassory torts like battery. The mode of legal analysis also
differs in most cases. For example, negligence is seldom the basis
for liability in dignitary and economic torts.1 In terms of guiding
policy, free speech considerations, which are not an issue in
ordinary physical harm torts, will often be significant or even
determinative in the case of dignitary torts based on non-
commercial communications by the defendant.2 And in economic
tort claims, courts are increasingly concerned to preserve a large,
sometimes a very large role for contracts, to the exclusion of tort
claims.3 Similar issues have not traditionally been significant in
physical harm cases.
Characteristic overlap in dignitary and economic tort claims.
The dignitary and economic torts are often conceived so loosely
that they overlap with one another, even though different rules
apply to each tort. For example, a defendant’s published statement
might be either defamation, or invasion of privacy, or interference
with contract, or even intentional infliction of emotional distress—
or all of the above. Possibly it could also be an injurious falsehood
such as commercial disparagement, an invasion of the “right of
publicity,” or even a trademark infringement. Another example is
the case of identity theft, which might support invasion of privacy
claims, conversion of
932
intangibles, or interference with contract, among others.4 The

conceptual imprecision that makes these overlapping theories
possible creates several problems.
Practical problems. The plaintiff’s lawyer may be required to
make numerous separate claims to avoid the risk of a malpractice
claim if the case is lost. This will add work for the plaintiff’s lawyer
and additional work for the defense firm. Defendants, typically
earning hourly fees, are likely to respond aggressively on each
separate overlapping claim, generating not only work for
themselves but also additional work for the plaintiff’s lawyer and
the courts. Among other problems created by overlapping dignitary
and economic claims is the problem of avoiding duplicative
damages.5 Another is to determine whether the policy reasons that
bar a cause of action for one of the overlapping torts should defeat
an action under other theories of recovery upon the same essential
facts. For instance, if the tort consists of a communication but is
defeated by defamation rules, can the plaintiff sidestep the rules of
defamation by recasting the tort as one for emotional distress,
privacy invasion, or interference with contract? The problem
represented by this question arises partly because courts and
lawyers have not always recognized that conflicting tort rules
require attention.
Dignitary torts. Dignitary torts involve legally cognizable
invasions of rights that stand independent of both physical and
economic harms, that is, invasions of human dignity in the sense of
human worth. Battery may entail physical harm, but in some cases
the harm from a battery is interference with the plaintiff’s
autonomy, her right to prevent unconsented-to touchings. The
dignitary torts in the chapters that follow, however, involve no
physical invasion and no direct threat of it. The best examples of
stand-alone dignitary torts are defamation6 and invasion of
privacy,7 although various misuses of the judicial process can be
classified in the same way.8 Intentional interference with
important family relationships is a further example of a dignitary
tort.9 Discrimination, where it is a tort, statutory or otherwise, can
also be a dignitary tort, although coverage of that topic has been
left largely to more specialized materials.
Emotional harm claims. Claims for stand-alone emotional harm
also fit the idea of dignitary harm, and it is true that special rules,
not ordinary negligence or intentional tort rules apply in most
cases. Nevertheless, this book groups emotional harm claims with
physical torts because, for the most part, emotional harm claims
are contextually rooted in physical harm or threats of it even when
the particular plaintiff suffers no physical harm.10
Nuisance. The tort of nuisance, where the plaintiff loses
“enjoyment” of land but does not necessarily suffer physical harm
to it, is also hard to classify, but it can certainly be said that it is a
tort with rules of its own and that simple negligence analysis alone
will not suffice.11
933
The meaning of pure economic torts. With pure or “stand alone”
economic torts, economic harm is the gist of the action. More than
that, however, the economic harm stands alone in that does not
result from some other actionable tort. For instance, in a pure
economic tort, the plaintiff’s economic harm does not result from
actionable personal injury, property damage or emotional harm. If
economic harm is a consequence of some actionable tort, it is
merely an item of recoverable damages in a suit for that tort, and
no special tort rules are invoked.
Examples of pure economic torts. The law is host to many pure
economic torts. A huge category is interference with contract and
the related tort of interference with economic opportunity. Where
such interference is accomplished by tortious means, say by
physically beating the plaintiff, the plaintiff can recover proven
economic losses as consequential damages resulting from the
tortious battery. In contrast, the pure economic tort of interference
with contract arises only if the plaintiff suffers such interference in
the absence of any physical tort. For example, the defendant may
interfere with the plaintiff’s contract by offering a better deal to the
plaintiff’s promisor or by using its economic power to make the
plaintiff’s deal costly.12 In some jurisdictions these interference
torts are so broadly conceived that they cover much the same
ground as many other torts with more specific rules. Examples of
other economic torts include cases of pure economic harm caused
by breach of fiduciary duty,13 by fraud or misrepresentation,14
conversion of intangibles, injurious falsehoods that do not affect
personal reputation but that cause financial harm,15 and
malpractice of lawyers,16 auditors, and architects whose fault
causes no physical harm but does result in economic loss to those
who rely.
Negligence in economic torts. Negligence is often an insufficient
basis for liability when it comes to pure economic torts. Negligent
interference with contract, for example, is not ordinarily
actionable. However, in some cases the defendant owes the
plaintiff a duty of care because of his undertaking or special
relationship with the plaintiff, in which case, a negligence action is
permitted for pure economic harm. Legal malpractice claims are
examples.
The special role of contract—an “economic loss rule.” The
potential role of contract in economic harm claims is a major
concern. Where the plaintiff and defendant have contracted with
respect to a given matter, many courts have insisted that the
plaintiff’s claim with respect to that must be in contract. If the
contract between the parties gives the plaintiff ground for relief,
she may pursue the contract claim but not a tort claim. If the
contract does not afford the plaintiff relief, then it is frequently
held that she cannot have relief under tort law either. The rule
that often limits the plaintiff to her contract claim (if she has one
at all) is one of the several rules often referred to as the economic
loss rule or doctrine.17 Some courts have gone much, much further,
refusing to entertain tort claims when the plaintiff could have but
did not actually contract about a matter. The exact scope and
application of the economic loss rule has probably not been fully
delineated, although it figures in a multitude of cases.
934
Scope of Coverage. Several kinds of economic interference have

been excluded from coverage in this treatise, partly because they
are now well-developed specialties. Antitrust law is thus omitted.
Although intellectual property and unfair competition torts are
summarized in this book,18 specialized works deal with those
subjects in more detail.
________________________________
1 An important but partial exception is that, although defamation
was traditionally a kind of strict liability tort, free speech considerations
have led courts to require intentional or negligent falsehood in many
cases. See § 519.
2 See § 554 (constitutional limitations on defamation claims).
Commercial speech is sometimes given substantial constitutional
protection, see e.g., § 632 (persuasion to breach a contract), but not always,
see § 579 (use of plaintiff’s “personality” characteristics for commercial
purposes).
3 See §§ 515 & 686 and Chapter 41 generally.
4 See §§ 580 (privacy invasion generally); 710 (conversion of
intangibles); 650 (identity theft and reputational loss) & 659 (injurious
falsehood).
5 See § 617.
6 Chapter 37.
7 Chapter 38.
8 Chapter 39.
9 Chapter 40.
10 See Chapter 29.
11 Chapter 30.
13 Chapter 43.
14 Chapter 43.
15 Chapter 43.
16 Chapter 45.
17 Chapter 41.
18 Chapter 46.
935
Subpart A
DIGNITARY TORTS
Chapter 37
DEFAMATION
Analysis
A. INTRODUCING DEFAMATION
B. COMMON LAW REQUIREMENTS
§ 37.3 Elements of Defamation—Common Law and Constitution
§ 37.5 The Requirement of Defamatory Content and Its Test
§ 37.8 The Requirement of Falsity vs. “The Truth Defense”
C. DEFENSES
§ 37.11 Absolute Privileges & Common Law Qualified Privileges
§ 37.13 Revising Privileges After the Constitutional Cases
D. CONSTITUTIONAL LIMITATIONS ON RECOVERY
§ 37.19 Opinion Statements—Constitutional Protections
E. REMEDIES
§ 37.21 Non-Damages Remedies Including Money Disgorgement
__________
936
A. INTRODUCING DEFAMATION
Reputation and free speech interests. Defamation law, executed
through the rules of libel and slander, aims at protecting
reputation and good name against false and derogatory
communications.1 Reputation is much prized in the law.2 So is free
speech. These two interests are often in conflict. Accordingly much
contemporary defamation law is engaged in seeking an appropriate
range of protection for the plaintiff’s reputation without sacrificing
the defendant’s speech rights.
Exclusive means of protecting reputation interests. Reputational
harm is protected almost exclusively by the rules of defamation,
malicious prosecution type torts,3 privacy,4 and injurious
falsehood.5 Although occasionally a plaintiff will claim emotional
distress or some other tort based on defamation-type facts, the
defamation rules will ordinarily control.6 Under traditional rules,
then, the plaintiff cannot ordinarily avoid the defamation rules by
pleading simple negligence. Instead, she must prove the elements
of defamation, and she is subject to its limits.7 Only a few cases
have allowed the plaintiff to proceed on a negligence claim, and
those have involved unusual and indirect conduct.8
Protection of reputation only. Because defamation law aims to
redress harms to reputation, it is not used to recover for other
types of harm that do not result from reputational harm. For
instance, the plaintiff can recover for emotional harm resulting
from harm to her reputation, but if the defendant’s publication did
not harm her reputation, a defamation claim will not lie for
emotional harm resulting from the publication.9
History. Reputational harm may not always have been the focus
of defamation law. Primitive law may have been concerned more
with insult or dishonor that could lead to blood feud.10 Legal
redress for harsh words or name-calling formalized the victim’s
vengeance and made the violence of revenge unnecessary. In the
medieval English law, oral statements demeaning to others were
punished as sin in the Church courts, which
937
is to say that the priest demanded a penance. Eventually,

however, common law torts in the 1500s took over these slander
actions and converted them into actions for damages.11
The history of libel based on printed or tangible
communications, such as those found in pamphlets is quite
different. By 1600 or before, the printed word was considered a
threat to political stability. Printers in England had to be licensed
and to give a bond. At that time a libel included any criticism of the
English government or even of “great men.”12 Truth was no
defense;13 even to laugh at a libel was a crime.14 This ruthless
program of suppression was carried out by the Court of the Star
Chamber, called by Andrew Hamilton “the most dangerous Court
to the Liberties of the People of England, that ever was known in
that Kingdom….”15
Libel was historically used to silence political opposition in
England and the United States. New York’s British-appointed
Governor Cosby used libel law to prosecute John Peter Zenger, the
editor of a politically independent paper, The New York Weekly
Journal, for reporting the Governor’s misdemeanors. Zenger was
forced to spend nine months in prison awaiting trial because his
bail was set so high. (Anna Catherine Zenger published the paper
while her husband was incarcerated.) Ultimately, Andrew
Hamilton came to Zenger’s defense, securing a jury acquittal in
1735.
Zenger’s acquittal did not establish a free press in the Colonies,
but it has ever since been a rallying point against the scheme of
criminal punishment for truthful words. Since the 19th and 20th
centuries, defamation law has been largely private and civil. The
states received a good deal of English law on the subject of
defamation. In particular, the American courts thought from the
beginning that written defamation is to be treated differently from
oral defamation; the categories that limit liability for slander do
not apply when the defamation is in writing.16 American courts
also adopted some obscure and even bizarre doctrines best left for
later discussion.17 Although the private or tort law of defamation
aims to protect reputation and good name, some of its particular
rules seem derived from the roots of defamation in sin, sedition,
dishonor, and punishment.
The history of libel and slander forecasts the concern of
contemporary law to balance reputational interests against the
interest of the individual defendant and of society at large in free
speech. Since 1964, the Supreme Court of the United States has
attempted to affect an appropriate balance of those interests under
the First Amendment’s free speech guarantee,18 which has
required changes in some of the common law rules for many cases.
The history of libel and slander also makes a narrower point.
Defamation law long antedated the development of general
negligence law. Liability for defamation under the
938
common law rules thus did not depend upon proof of negligence.
Equally, an ordinary negligence action ordinarily cannot be
maintained for loss of reputation.19 Defamation law is also wholly
unrelated to those intentional torts like battery and assault that
are derived from the writ of trespass and that entail direct
application of force. The law of defamation, true to its unhappy
history, developed its own complex rules unrelated to the law of
negligence and intent.
B. COMMON LAW REQUIREMENTS
§ 37.3 Elements of Defamation—Common Law and
Constitution
Traditional common law elements—libel. Defamation by writing
and by contemporary means analogous to writing is libel.
Defamation communicated orally is slander. Communication in
any form can be defamatory, but defamation is most commonly
communicated in words, pictorial elements, acts or some
combination of these methods. This chapter often uses the term
defamation to include any form of communication. In claims for
libel, once the plaintiff showed a publication of defamatory
material about the plaintiff, the traditional rule permitted courts
to presume that the publication was made with malice,20 that the
words were false,21 and that the plaintiff suffered damages.22 The
upshot was that the plaintiff could recover substantial damages for
libel upon proof of three elements: (1) defendant’s publication of
defamatory material (2) of and concerning the plaintiff (3) to a
third person. These rules created a regime of prima facie strict
liability, because no proof of the defendant’s fault was required. As
usual with such extremes, courts then created a limited number of
affirmative defenses with the burden on the defendant.23
Additional elements required in contemporary law. Many
contemporary cases have announced that three non-traditional
requirements are now necessary to sustain a libel claim. These
cases tend to say the plaintiff must prove, besides the elements
listed above, that (4) the defendant was guilty of fault equivalent to
negligence or something greater in all cases,24 (5) the publication
was false,25 and (6) the plaintiff suffered actual
939
damages.26 Others list only some of these added elements.27

These added elements came about as courts attempted to integrate
federal constitutional rules of free-speech into the common law of
libel. When the Restatement Second introduced these additional
requirements in 1977,28 they appeared to reflect the constitutional
requirements. A later Supreme Court decision, however, suggests
that the Constitution does not require these added elements where
the defendant defames a purely private person on an issue that is
not of public concern.29 Nevertheless, states apparently continue to
state these added elements of proof for all cases, not merely those
involving public figures or issues of public concern.30
Slander, special requirements. In the case of slander, the
plaintiff must also prove either (a) special (pecuniary) harm or (b) a
publication asserting that the plaintiff has committed a serious
crime, or that the plaintiff has a character trait or a practice
incompatible with her trade, business, or profession, or that the
plaintiff suffers an incurable and communicable disease.31 The
requirement of pecuniary harm is significantly more demanding
than the requirement of actual harm or damages.32
Constitutional Limitations. Since 1964, the structure of the
common law defamation case has been radically altered by
constitutional rulings based upon defendants’ rights to free speech.
All three of the common law presumptions—fault, falsity, and
damages—have been reversed by constitutional decisions
governing a substantial number of cases.33
Although some issues remain undecided, the constitutional
rules probably cover the following territory. 34 (1) If the plaintiff is
a public official or a public figure, she must now prove that the
defendant published a knowing or reckless falsehood, but states
are free to permit recovery of presumed damages if they choose to
do so. (2) If the plaintiff is a private person but the issue involved
in the publication is one of public concern, the plaintiff is required
to prove falsity of the publication, some fault on the part of the
defendant (usually negligence), plus actual injury or damages.
Upon such proof, she cannot recover punitive damages, and
without such proof she cannot recover anything. (3) If the plaintiff
is a private person and the alleged defamation is of no public
concern,
940
the states are free to permit recovery of presumed damages;
probably the states are free to invoke common law strict liability
rules as well.
Where falsity is required, the effect is to protect opinion
statements that cannot be said to be either true or false.35 Even
where the constitutional limitations may not apply, some states
have now adopted some of these constitutional limitations as a part
of their common law.36
The meaning of publication. The concept of publication is used
in defamation law not only in stating the elements of a claim but
also in determining what law applies, whether the statute of
limitations has run, and other procedural matters.37 Publication is
a word of art. It includes any communication, by any method,38 to
one or more persons who can understand the meaning.39 The
threat or danger of a future communication is not a publication in
any sense.40 By inference or by direct evidence,41 the plaintiff
claiming libel or slander must prove that the defendant published
defamatory material about the plaintiff to a third person;
publication only to the plaintiff herself is insufficient to establish
defamation, though it may amount to some other tort.42 No rule
requires a mass audience, but if the publication reaches only a few
persons, damages may be limited. Anyone who participates in
publication can be a publisher subject to liability for defamation.43
Courts sometimes treat issues of privilege to publish as issues
about publication itself.44 It has been held that publication to an
agent of the plaintiff who is acting for her in matters touched by
the defamation may be considered to be no more than publication
to the plaintiff herself,45 but this seems doubtful, since the plaintiff
is entitled to her reputation with her agents as well as with others.
Forms of publication. Books and newspapers are publications if
distributed to at least one person besides the plaintiff, as many
cases imposing liability show. At the other
941
end of the spectrum, oral personal remarks made to a neighbor

over the back fence equally count as publication.46 Suggestive
questions as well as declaratory statements can communicate
defamatory meaning.47 Photos,48 motion pictures,49 and computer
communications50 can all count as publications. Even some signs
or writing on the restroom wall51 or conduct without words can
communicate a defamatory falsehood. The defendant’s conduct may
be innocent in itself but may become defamatory when combined
with his words and with his implied adoption of another’s words.52
A publisher who gives a false and defamatory impression by
truthfully reporting some facts but omitting exculpatory facts or
facts that put the matter in an innocent light is subject to liability
because the gist of the publication as a whole in that case is false
and defamatory.53 But bare silence, not coupled with revelation of
other material, may not easily fit into the concept of publication,
even when silence implies something derogatory.54
Intent and negligence. To be responsible for defamatory
material, the defendant need not be the author, but he must be a
publisher of it. That means that he is not liable unless he
communicates the material intentionally or negligently.55 If he is
under a duty to remove or prevent a publication, a negligent or
intentional failure to do so counts as a publication.56 Negligent
publication is relatively rare, but possible. If I write in my diary
that you robbed the bank there is no publication at all, but if I
leave the diary open on the coffee table where guests might read it,
I am a negligent publisher if one of them does so.57
942
Intent to publish versus intent to defame. The traditional

requirement of intent or negligence has sometimes been
misunderstood as a requirement of fault. The only intent required
is an intent to publish (that is, to communicate), not an intent to
harm or even an intent to relay a falsehood. Although fault in some
more substantive sense is required in some cases under the
Constitution, the role of fault in determining whether the
defendant published material does not touch issues of truth,
justification, or reasonableness of the publication. The issue of
publication is about communication.
Original publisher as publisher of repeater’s republication. A
publisher is responsible for reputational harms proximately caused
by publication of defamatory material, including harms resulting
from a repeater’s foreseeable publication58 to at least one person
other than the plaintiff herself.59 The publisher is liable only if the
repeater is in fact repeating the substance of the original
publication and not the same defamation derived from some other
source,60 and if all the other requirements of a defamation action
are met.61
Transmitters, distributors, or disseminators of information.
Some primary publishers like newspapers are responsible as
publishers even for materials prepared by others, as in the case of
advertisements.62 On the other hand, many other publishers such
as telephone companies, libraries, news vendors, radio stations,
and internet services are called transmitters, distributors, or
secondary publishers rather than primary publishers. The
disseminator is essentially a conduit, not an originator or promoter
of content.
Protections for secondary publishers. Protection for distributors
or secondary publishers who merely carry the publications of
others, or furnish a forum in which others may be heard, seems
increasingly accepted in the United States.63 In the case of radio
and similar broadcasts, statutes today frequently immunize the
broadcaster who merely provides a forum for the speech of others
by leasing air time.64 A federal statute, the Communications
Decency Act (CDA), immunizes internet service providers and
users so that they are not to be treated as “publishers” and are not
legally responsible
943
for defamatory material created by others.65 The immunity does

not extend to website operators who are in part responsible for the
creation or development of content.66
Traditional self-publication. One peculiar kind of case is
strangely labeled as self-publication. In this kind of case, the
defendant directly communicates defamatory material about the
plaintiff only to the plaintiff herself. That is ordinarily not
publication in the law of defamation. However, in some cases, the
defendant can foresee that the plaintiff will feel compelled to
communicate the defamatory materials to others, and the
defendant thus is himself a publisher. For instance, if the
defendant hands a written defamation to an unsighted person, the
defendant can expect that the recipient will have others read it.67
The Restatement Second adds that the defendant is only a
publisher in these cases because the plaintiff was unaware of the
defamatory character of the communication she transmitted to
third persons.68 However, in some cases the self-publication
doctrine has been expanded. A few cases have held that when the
defendant can foresee publication by the plaintiff under compelling
circumstances, as with a discharged employee seeking employment
elsewhere, the defendant is subject to liability for defamation.69
Other cases, said to be the large majority, however, have expressly
rejected the whole idea, at least as applied in employment cases
and where the plaintiff is aware of the defamatory content. These
decisions theorize that the defaming employer is simply not a
publisher at all.70 The policy bases for excluding liability is that
open and honest communication is important in the conduct of
business, that a culture of silence in the workplace would be
harmful to both employer and employee, and that liability would
undermine the plaintiff’s duty to mitigate damages.71 These
policies do not support the no-publication conclusion, but rather
support a privilege.72
§ 37.5 The Requirement of Defamatory Content
and Its Test
Defamatory content required. No action for libel or slander is
stated unless the plaintiff can prove that the defendant has
published something of a defamatory nature about her.
Publications that are expected to harm and do in fact harm the
plaintiff may count as some other tort but they cannot count as
libel or slander unless they have defamatory quality.73
944
Definitions of “defamatory.” Under the classic English

definition, words had a defamatory quality if they exposed the
plaintiff to hatred, ridicule, or contempt.74 American decisions
added that defamation included anything that subjected the
plaintiff to obloquy, odium, shame, disgrace, or other forms of
discredit or harm to reputation.75 They also recognized that a
publication would be defamatory if it caused the plaintiff to be
shunned or avoided by others, even if she were not discredited or
subjected to disgrace.76 Courts have generally come to adopt the
Restatement’s more accurate statement77 that a communication is
defamatory if it tends to harm the plaintiff’s reputation, lowering
her in the esteem of a substantial and respectable minority in the
community or deterring people from associating or dealing with
her.78 Tendency to harm, however, is an estimate of the judges and
jurors from their experience in life; it is almost never a matter of
evidence or poll-taking.79 When reasonable people could differ as to
whether a communication is defamatory, the question is left to the
jury.80 A statement raising suspicion that the plaintiff had
poisoned people with anthrax might fit these broad definitions
even if the statement could not be construed to mean that the
plaintiff was in fact guilty of the poisoning.81
Right-thinking people test. Even the Restatement’s definition
does not adequately explain why recovery is excluded in some
cases. In a diverse society, almost any statement about the plaintiff
would tend to lower the plaintiff in the esteem of someone.
Statements that the plaintiff cooperated with police or voted for
one party or another in an election are not accepted as
defamatory,82 but some people will feel that such conduct is
disgraceful and contemptible. Courts, especially in New York, once
attempted to deal with this problem by saying that to be
defamatory the statement must lower the plaintiff in the esteem of
“right-thinking people,”83 but as there is no standard for
determining what right-thinking people would think, and since a
democratic and individualistic society recognizes all people’s right
to hold their own opinions, the right-thinking test is
945
unhelpful, if not downright sinister. The test has sometimes

been expressly rejected84 and in the last generation, hardly been
mentioned except in the application of New York and Kentucky
law.
Substantial number test. The best courts have been able to do
with the problem is to say that the publication is not defamatory
unless it would cause a substantial number in the community to
reduce dealings with the plaintiff or to hold her in lower esteem.85
This does not mean, however, that the plaintiff must show that
anyone actually believed the defamatory statement.86 Under the
presumed damages rule, it is enough that the publication is of a
defamatory nature, even if no actual harm is demonstrable. The
inquiry, in other words, is about the defamatory nature of the
statement, not about the extent of harm it wreaked.
Common categories of defamation. The tests of defamation
permit courts to judge each case on its facts without limiting
recovery to any artificial categories. However, as a matter of
description, most defamation cases involve publications that
expressly or impliedly impute to the plaintiff (1) a serious crime
involving moral turpitude or a felony; (2) a character trait that
makes her unfit for, or conduct incompatible with, her business,
trade, or profession; (3) acts or views opposing some deeply held
moral standard of the community, even when no crime has been
asserted; or (4) physical or other traits that show no violation at all
of community standards but would nevertheless induce others to
shun the plaintiff or avoid dealing with her. The first two
categories are used in the law of slander for somewhat different
purposes, but they also describe the patterns in a great many libel
actions.87
Crime. Examples of the first two categories are easy to imagine.
Publications asserting that the plaintiff committed murder or any
other serious crime are certainly defamatory, whether the claim is
for libel or slander. And the accusation may lie in the recitation of
evidence against the plaintiff as well as in direct or conclusory
accusations.88
Incompetence, bad credit. Publications asserting or implying
that a physician is not trained in his work, is incompetent to do
it,89 or that he does medically unnecessary surgeries90 are
examples of the second category. Even a garbled letter, sent out
over the plaintiff’s name to prospective employers looking for
editorial employees, could imply
946
that the plaintiff is a sloppy writer or fails to proof her letters

and is incompetent for an editorial position.91 Courts have also
extended this category to include assertions that may damage the
plaintiff’s credit because they bear upon the plaintiff’s ability or
willingness to pay her debts.92
Views or acts offending prevailing cultural or moral views.
Examples of the third group include a few cases finding defamatory
quality in assertions that the plaintiff is a liar,93 or that the
plaintiff engages in or supports sexual activity that members of the
community regard as fundamentally wrong, even when that
activity is not a crime at all.94 Similarly, the implication that an
African-American politician makes deals that reduce the power of
blacks in the community has been considered defamatory.95 Even
statements that make the plaintiff seem “insincere, excessively
litigious, avaricious, and perhaps unstable” have been held to
count as defamatory.96 False attribution of offensive views to the
plaintiff may be actionable,97 as where the defendant misquoted
the plaintiff in a way that made the plaintiff seem particularly
insensitive to rape victims.98 At least in one era, imputations of
communist sympathy, though again not illegal, were held to be
defamatory.99 Sometimes publications asserting that the plaintiff
is a racist, homophobic or otherwise hostile to particular groups are
dismissed because they are, on the facts, mere name-calling or
opinion,100 or because some other element of the
947
defamation claim has not been proved.101 However, false factual

assertions that impute racism to the plaintiff are defamatory,102
although what counts as defamatory in this context will vary with
the exact words, the time and place and the experience and
sensibilities of judges.103 This third group can also sometimes be
subsumed within the second, since any character trait that deeply
offends the prevailing views may also be regarded as affecting the
plaintiff’s fitness for her calling.
Conditions causing people to shun the plaintiff. In the fourth
group are cases in which the plaintiff is not said to have done or
even thought anything discreditable by anyone’s standards, but is
held to be defamed nonetheless. For example, it may be defamatory
to assert that the plaintiff is insane104 or mentally impaired,105
that she has a contagious disease through no fault of her own,106
that she is an African American,107 or even that she has been a
victim of rape.108 Such decisions can be troubling because they may
seem to institutionalize various forms of bigotry and ignorance. On
the other hand, the plaintiff’s harm in a world where ignorance and
bigotry exist can be very real. The defendant whose negligent or
intentional falsehood causes such harm is not necessarily entitled
to benefit from a judicial condemnation of the prejudice that he
himself has invoked. Perhaps the plaintiff is entitled to maintain
her reputation and good relationship even with people who hold
wrong-thinking opinions on particular subjects.
Examples of nondefamatory content. On the other hand, a good
many publications may cause actual harm without being
defamatory, especially if they do not assert a moral flaw. Ridicule
was once considered to carry a defamatory quality, although it
might be privileged on occasions. Constitutional decisions,
however, have protected ridicule and other communications that do
not falsely assert facts.109 The common law also rejected suits
based upon name-calling,110 although it must be apparent that in
many groups
948
name-calling can be quite destructive of the plaintiff’s

reputation.111 Beyond ridicule and name-calling, many assertions
can cause harm to the plaintiff’s reputation but are not
defamatory. It is not actionable to assert that the plaintiff is a
Republican or supports Senator Hatch when she does not,112 that a
Democratic candidate is not really a Democrat,113 or that another
candidate voted to raise taxes.114 New York seems to have held
that it is not defamatory to imply that a competing retailer of
Korean origin does not speak English.115 In some cases, the
plaintiff is falsely accused of doing something socially useful but
inimical to the interests of the plaintiff’s own group. In a well-
known case,116 a truck-stop owner was accused of reporting
truckers’ violations to the Interstate Commerce Commission, and
naturally enough lost the truckers’ business as a result. Since
supporting the interests of the larger community was not
reprehensible, the court found the communication not defamatory.
This result seems to contradict the premise suggested for the third
group, that the plaintiff is entitled to good relationships even with
people whose own attitudes are antisocial.
The meaning of words. Logically speaking, courts can determine
the defamatory content117 of a publication only after they have
first determined its meaning. The meaning of words, pictures, or
other communicative elements is critical not only on the issue of
defamatory quality but also on the issue of truth or falsity, even
though those issues are distinct from one another.
Judge and jury. The first question is whether the words used
are capable of bearing a defamatory meaning. This question is for
the judge to decide.118 If the answer is no, judgment must go for
the defendant. If the answer is that reasonable people could find a
defamatory meaning, the jury must decide what meaning the
words conveyed and whether that meaning was defamatory.119
Those questions are ordinarily decided on the basis of the jurors’
own experience and understanding rather than on the basis of
expert testimony.120 No rule requires that all people would
understand the words in a
949
defamatory sense. The logic is that if only some people would

understand the words in a defamatory sense, the damages award
should be smaller than otherwise.
Meaning vs. defamatory quality. The meaning of words raises a
question distinct from their defamatory quality. A statement that a
police officer tested positively for drugs but that his friends in the
department falsified the test to show a negative would clearly be a
statement having the quality of defamation. But a statement that
the police department did not follow required procedures in testing
the same police officer may not mean the same thing at all because
the department’s failure to follow procedures may or may not imply
falsification. The second statement raises a problem about the
meaning of the words used; once that is resolved, the question
whether the words were defamatory may become quite simple.
The meaning of meaning. Under the Restatement, the meaning
(as distinct from the defamatory quality) of a publication is either
(1) that which the publisher intended or (2) that which the
recipient of the publication reasonably understood to have been
intended.121 Under the first part of this definition, the meaning is
that intended by the defendant even if that meaning differs from
that conveyed by the words themselves.122 Under the second part
of the definition, the recipients’ own reasonable understanding of
the words controls. Courts consider not only the meaning
recipients would attach to individual words,123 but the recipients’
“habits of deduction,”124 subject, however, to judicial limits on
irrational interpretations.
Factors in assessing meaning. Courts tend to consider questions
of meaning by taking into account (1) the words themselves,
especially where the meaning is precise and standardized, together
with reasonable implications; (2) the literary context, that is, the
entire message; (3) the social context, that is, events, disputes,
purposes of the communication and other factors outside the
publication itself; and (4) the group feelings or culture of the
recipients.
Literal words and implications. Sometimes words mean what
they say, no more, no less, but ambiguities and shifts in word
usage over time125 complicate interpretations. When words are
ambiguous, with one possible meaning defamatory and one not,
most courts permit the jury to resolve the issue.126 Both judges and
juries are to go by the plain and natural meaning as persons of
ordinary intelligence would understand it.127 Much of the difficulty
comes when the defamation, if there is any, arises from an implied
meaning carried by the literal words. A literal statement that is
false but not literally
950
defamatory128 may imply a further false statement that is

entirely defamatory.129 Some implications are analytically
inescapable. If the plaintiff says he saw the defendant strike a
woman and that he could not be mistaken, the defendant’s denial
is equivalent to saying that the plaintiff was lying. If a company
has a rule against extending credit, then to say that the plaintiff-
employee extended the company’s credit to a customer inescapably
says that the plaintiff violated company rules.130
Implication from words or context. Many other implications
cannot be derived analytically from the published language. The
defendant’s statement that a former employee is no longer
available to serve clients might be understood by someone to mean
that the employee was discharged for wrongdoing, but the
statement neither says nor, standing alone, does it imply anything
of the kind.131 When the plaintiff cannot show defamatory
implication from the words themselves, however, she may be able
to do so by pointing to materials outside the words, that is, to
literary or social context, which are in part, the same materials
considered in determining whether a statement is one of fact or one
of opinion.
Literary or internal context. Courts frequently recognize the
importance of literary context in determining whether a
publication is defamatory. For example, a single word or phrase in
a news story might seem defamatory if read alone, but not if read
with the entire story.132 Equally, individual items in a news report
may be nondefamatory when taken alone, but the report as a whole
may be defamatory because of its omissions or its juxtaposition of
facts or otherwise.133 Thus literary context (as distinct from social
context) is often critical in interpreting both defamatory and
nondefamatory publications. Trying to focus on the defamatory
words alone would be like trying to appreciate a pointillist painting
by Seurat with a magnifying glass—the telling pattern would be
lost in a maze of dots.134 Beyond that, courts have recognized that
context (including tone and type of publication) may show that
language is asserting no defamatory fact because context can show
that the words should not be understood as literal statements but
as whimsy, irony, hyperbole, or meaningless invective.135 One
context issue arises with headlines which, read alone, look
defamatory. Courts have usually said that the headline must be
interpreted by reading it with the accompanying story, which may
negate its defamatory meaning.136 The point of examining context,
however, is to assist in determining meaning, not to make a rule.
In some cases a sensational headline (or television teaser) will
overwhelm the more detailed text, while
951
in others, the nature of the headline and story are such that
many readers will not read or absorb the supposedly redemptive
text. Similarly, if a photograph of the plaintiff is erroneously
identified as the perpetrator of a crime, the visual impact may
overwhelm the more accurate identification contained in the
accompanying news story. Not surprisingly, then, in some cases
defamatory headlines and photographs have been sufficient for
liability in spite of qualifications that might be found in
accompanying text.137
Social or external context. Social context of a publication
includes a wide variety of facts extrinsic to the publication itself. A
statement that a butcher shop sells bacon or that a woman is
engaged to marry Mr. Arbuckle carries no defamatory implications
on its face. But when facts extrinsic to the publication are added,
serious implications may arise. If the butcher is an Orthodox Jew
or the woman is already married, the first publication implies a
violation of religious tenets or practices,138 and the second implies
a violation of sexual standards strongly held in many
communities.139 A number of publications that do not obviously
mean anything defamatory may be understood to convey additional
and defamatory meanings when the full dispute and background
issues that led to publication are shown.140 Some courts require
proof of special damages when extrinsic facts are necessary to show
the defamatory quality of the communication,141 but whether that
added requirement is imposed or not, the prior issue of meaning
itself must often be gleaned from the social context of the
publication.
Recipient’s culture or outlook. The recipient’s culture, outlook,
and knowledge clearly shape his reaction to the published message,
but they may also shape his interpretation of the words used. This
is most obviously true with the recipients’ knowledge, which may
vary from time to time and place to place. To say that the plaintiff
is the David Duke of Chester County harbors no meaning except to
those who know or think they know something about David
Duke.142 Different cultures may also attribute different meanings
to words or styles of communication. Interpretation of publications
in light of the understandings and assumptions of the culture to
which they were addressed is therefore appropriate.
Publication must refer to plaintiff. A defamatory publication is
actionable only if it is “of and concerning” the plaintiff. In the
language of the Restatement,143 quoted or paraphrased by a
number of courts,144 the trier must find that recipients of the
952
publication would reasonably or correctly believe that it was

intended to refer to the plaintiff. Although courts often state the
rule in abbreviated form,145 the rule actually requires several
things. The court must first determine that reasonable people
could believe that the published statement referred to the
plaintiff.146 If evidence is sufficient to make a question for the
trier, the trier must then find that at least one person actually did
believe the statement referred to the plaintiff.147 And finally,
under the Restatement’s test, the hypothetical reasonable person
and the actual recipient must rationally believe that the defendant
intended a reference to the plaintiff. Issues concerning the
defendant’s state of mind, as well as evidence and inference to
identify the plaintiff is developed at greater length elsewhere.148
Works of fiction thought to be understood as referring to a living
plaintiff, present special issues as well.149
Defaming plaintiff by defaming others. In general, plaintiff has
no defamation claim resulting solely from defamation of
another.150 For example, the commissioner of police is not defamed
by defamatory criticisms of police under the commissioner’s
command,151 nor is one police officer necessarily defamed when
another one is.152 There are of course cases in which defamation of
one person defames another as well, but only if a reasonable
recipient of the publication can and does interpret the defamation
“as being, in substance, actually about him or her.”153 For example,
defamation of a corporation is not routinely defamation of
shareholders or officers,154 but conceivably defamatory statements
that the corporation engaged in certain illegal financial activities
defames the CEO if the CEO makes all the financial decisions.155
Defaming plaintiff by defaming a group. Recent years have seen
repeated efforts to condemn group defamation, but so far without
an impact on domestic tort law.156 An
953
Illinois criminal statute against group defamation was once

upheld,157 and “veggie libel laws” create claims for all producers of
a general food that is falsely said to be unsafe.158 Otherwise,
however, defamation of large groups, for example by claims that
lawyers are shysters,159 is almost never actionable by the group
itself.160 Rationales and permutations can be complex.161
Corporations; injurious falsehood or disparagement.
Corporations and other businesses can and do recover for libel or
slander when they have been defamed by charges that import
wrongdoing such as charges of crime, fraud, or incompetence in
business operations.162 But when the publication asserts that the
corporate product is defective, inadequate, or harmful without
asserting “personal” defamation, the traditional view regards the
claim as essentially different from the claim for defamation.163
Such claims, along with other false and harmful statements
affecting business are called injurious falsehood, commercial
disparagement, or slander of title claims. Statutes may also create
causes of action for some injurious falsehoods. Such claims, which
do not follow the early common law rules of libel, really involve
economic, not personal torts, and are accordingly considered
elsewhere.164 However, many claims by corporations or other
businesses are asserted and analyzed in the terminology of libel or
defamation, even though the rules of injurious falsehood,
disparagement or slander of title would be more appropriate.165
Government entities as plaintiffs. Few cases have been brought
by government entities against private individuals. The Supreme
Court affirmed that the Sedition Act was unconstitutional in
prohibiting criticism of government, and said that a civil libel claim
was equally prohibited.166 It may be arguable that a false
publication of fact harmful financially to a governmental entity
should be actionable, if not as defamation then as injurious
falsehood. However, the Illinois Supreme Court rejected such a
claim, saying that the action “is out of tune with the American
spirit, and has no place in
954
American jurisprudence.”167 Somewhat analogously a

California court held that a city could not sue for malicious
prosecution.168
Defamation of the dead. No civil action lies for defamation of the
dead.169 This means that neither the estate of the deceased person
nor her relatives can recover for statements made after her
death.170
Survival of defamation actions. As to defamation published
before death, whether suit is permitted depends upon the state’s
survival statute.171 The common law rule terminated tort actions
at the death of either party. Survival statutes changed that rule
with respect to claims arising from personal injury and some have
done so with respect to defamation claims as well, thus permitting
the estate to sue for a defamatory publication made during the
deceased’s lifetime.172 Other survival statutes, however, have
continued the common law rule with respect to claims for libel and
slander. Where that is the case, the claim of a person defamed
during her lifetime is terminated at her death,173 unless, as a little
authority has said, the survival statute is unconstitutional insofar
as it prescribes a special rule for defamation.174
§ 37.8 The Requirement of Falsity vs. “The Truth
Defense”
Traditional burden of proof. Under the traditional common law
view of defamation, a publication was presumed false once it was
shown to be defamatory.175 Under the original English practice of
using criminal libel suits to punish political dissent, it was said
that the greater the truth, the greater the libel, and even in some
American states it was said that truth was no defense if libel was
published maliciously. These approaches suggested another rule—
that even the assertion of truth as a defense in court might be
reviewed as a repetition of the libel that justifies inflicting punitive
damages on the defendant.176 Such rules are obviously at odds
with the American notion
955
of free speech, the value of truth, and access to courts. They

may now be unconstitutional,177 although their ragged threads can
occasionally be found.178
Constitutional reallocation of burden to plaintiff to prove falsity.
Constitutional decisions have now allocated the burden of proof to
the plaintiff on the issue of truth or falsity in cases where the
plaintiff is a public official or public figure and also where the
defamation touches an issue of public concern. The Supreme Court
has not excluded the possibility that the burden will fall upon the
plaintiff in all cases.179 Some states have also independently said
that falsity of the publication is an element of defamation and
hence to be proved by the plaintiff.180 Casual statements
sometimes ventured by courts to the effect that truth is a “defense”
in defamation cases generally181 are not to be taken literally.
Burden of proof aside, underlying issues about truth remain.
Substantial truth. The publication need not be literally true to
receive protection. It is enough if the publication is substantially
true. That means the gist or sting of the defamation must be true
even if details are not.182 Read literally, some judicial statements
seem to say that a publication is true if it generates no more
opprobrium or distaste in the readers’ minds than the truth.183
That may make good sense only when the published statement and
the truth are factually similar. Benedict Arnold’s treason was more
shameful than shoplifting, but it is not true that he was a
shoplifter merely because he was guilty of more serious
misbehavior.184 Arnold’s treason is too factually different from
shoplifting to show the truth of the shoplifting charge. But there is
another possibility. If the publication consists of more than one
defamatory item, the substantial truth of each item is judged
separately, although each item is to be understood in the
956
context of the whole article.185 Even if the defendant

intentionally misquotes the plaintiff, that does not necessarily
show a deviation from substantial truth.186
Examples of substantial truth. To say that the plaintiff evicted a
wounded Marine is substantially true if the plaintiff actually
evicted the Marine’s family with whom the Marine resided.187
Statements about crimes are often technically incorrect but
substantially true. To laypersons, “theft” may mean any wrongful
taking, including such distinct crimes as embezzlement, and might
even include a simple conversion of property.188 A statement that
the plaintiff has been disbarred is substantially true even if a
motion for rehearing is pending and the judgment is not final.189 A
statement that the plaintiff, booked for a crime, had been identified
by his own children is substantially true if he was identified by his
former wife’s children.190
Evidence of truth. Some defamation charges the plaintiff with
specific conduct like perjury in a trial (or with having a specific
condition such as a disease). Other defamation attributes to the
plaintiff a general character trait, as where the plaintiff is said to
be a liar or incompetent at her profession. If the defamation
charges specific conduct, the only admissible evidence of truth is
specific evidence of that conduct or conduct substantially similar
and carrying the equivalent sting. Evidence of general bad
reputation does not tend to prove specific charges. The plaintiff
may have a bad reputation as an alcoholic but that does not prove
she passed out in an alcoholic stupor last Saturday at the
tavern.191 When the defamation attributes an ongoing course of
behavior to the plaintiff, however, evidence of such behavior on
particular occasions will tend to show truth and is admissible.192
Likewise, if the defamation attributes a character trait to the
plaintiff, evidence of either specific misconduct that manifests the
trait charged or opinion or reputation evidence concerning the trait
in question will be admissible.193
Truth vs. limited damages. Even when the defendant cannot
show the truth of the charge, he may be able to show that actual
harm to reputation was small because the plaintiff’s reputation in
the community was already bad. This argument does not bar the
claim; it only permits the trier to consider evidence on the damages
issue.194 For this
957
purpose, courts might reject evidence of the plaintiff’s conduct

on specific occasions,195 but such evidence has sometimes been
admitted,196 and evidence of the plaintiff’s general reputation
would be admissible,197 at least aspects of her reputation affected
by the defamation.198 Indeed, under the libel-proof plaintiff
doctrine, it is sometimes argued that the reputation of some
plaintiffs is so bad that no award at all could be justified, even
when the publication is defamatory and untrue.199
False and defamatory implications embedded in a literally true
statement. Several kinds of statements may be literally or formally
true, yet contain an explicitly false and defamatory statement.
Examples of embedded defamation are: (1) “John told me that Pat
robbed the bank on Friday,” where it is true that John made the
statement but false that Pat robbed the bank; (2) “In my opinion,
Linda is an embezzler,” where it is true that the speaker holds the
opinion but false that Linda is an embezzler; and (3) “Either I
added incorrectly or the cashier stole $10,” where it is true that one
of the two conditions must exist but false that the cashier stole the
money. In such cases, the defamatory statement may do its dirty
work even though the non-defamatory portion of the statement is
true. In the first example, if truth were a defense, it would negate
the rule of repeaters’ liability. If truth is to be a defense in such
cases, it must be truth as to the defamatory sting. So if Pat did not
rob the bank and Linda is not an embezzler, the defendant cannot
avoid liability under the truth defense merely because he
accurately quoted someone’s accusation.200 The same idea applies
to other cases of embedded defamation. If the defendant asks the
question “Did Phil attempt to bribe the juror?” he conveys the
thought that he believes Phil may have attempted bribery. To
assert truth, the defendant would be required to show that Phil did
indeed attempt bribery.201 The truth issue is sometimes confused
with the issue of privilege. The fact that the publisher truthfully
attributes defamatory statements to others does not raise the truth
defense, but in some circumstances he may be privileged to convey
information gleaned from others.202
958
Similarly, the publisher may characterize facts that are literally
true in a way that makes the publication as a whole defamatory.
Truth might be a justification if the defendant correctly asserts
that the plaintiff used county building materials in constructing
the plaintiff’s own driveway, even if in fact the plaintiff was
properly authorized to do so. But if the defendant goes further and
characterizes the plaintiff as the perpetrator of a crime, the only
truth that will aid the defendant is truth of the assertion that the
plaintiff committed a crime.203 The problem of implied defamation
is discussed elsewhere.204
The damages difference. The traditional common law made
much of the distinction between libel and slander. All libel was
originally actionable without proof of special damages.205 Put
differently, damages were presumed in the case of libel. General
slander, sometimes called slander per quod, however, was not
actionable at all unless it caused the plaintiff pecuniary loss, often
called special harm or special damages.206 The effect of the rule
was that harm to reputation that did not show itself in pecuniary
loss was insufficient to permit recovery in the case of slander per
quod. At the same time, several categories of slander were treated
like libel so that damages were in effect presumed. This kind of
categorical slander is called slander per se, a term that means the
plaintiff need not prove pecuniary loss and that contrasts it with
slander per quod.
Distinguishing slander from libel. The traditional distinction
between slander and libel had it that slander was oral, libel was
written. That difference is not wholly adequate to distinguish the
two forms of defamation today. Courts now may consider several
factors: whether the publication is in tangible form, whether it has
the potential harmful qualities characteristic of written words,
whether it is widely disseminated, and whether it was
premeditated.207 A “yes” answer in each case tends to indicate that
the publication is libel rather than slander. Perhaps the ultimate
question on which these factors bear is whether the publication
and the harm expected from it is merely transitory and thus to be
classified as slander.208
Examples of publications that count as libel. Today, libel
includes not only writing but all forms of communication embodied
in some physical form such as movie film or video tapes, and mass
communications through radio broadcasts even if they are not
produced from a written script.209 Most communications by
computer are no doubt in the
959
category of libel.210 Reading aloud from written text may

constitute libel.211 An oral defamatory statement may also result
in a libel if the speaker knows, intends, or foresees that it will be
reduced to writing or other permanent form, and it is in fact
published in such a form. For example, a speaker at a meeting who
knows his words are being transcribed and will be printed in the
newspaper may be subjected to a libel suit rather than one for
slander only.212 Slander, in contrast, includes ordinary,
unamplified oral communications and transitory defamatory
gestures.213 The slander-libel distinction prompts endless analysis
of close cases such as the loudspeaker in the stadium filled with
50,000 people, but the whole classification process is usually
unsatisfactory because, traditionally at least, it leads to extreme
damages rules no matter what classification is adopted.
Slander per se. If the publication is classified as slander rather
than libel, a subsidiary classification is required. If the slander is
the kind called “per se,” then after all it is treated more like libel—
in particular, the plaintiff will not be required to prove pecuniary
damages and can recover for harm to reputation214 and emotional
harm215 even when the plaintiff suffers no monetary harm. In fact,
as in traditional libel cases, the plaintiff will be permitted to
recover damages without proof of any harm to reputation at all216
except when constitutional rules dictate otherwise.217 Slander per
se is that which charges a (1) serious criminal offense or one of
moral turpitude,218 (2) a “loathsome” and communicable disease,219
(3) any matter incompatible with business, trade, profession, or
office,220 and, sometimes, (4) serious sexual misconduct.221
Serious crime. Each of these per se categories can prompt its
own litigation without getting any closer to the real merits of the
claim or defense. Lawyers may find themselves
960
debating whether an accusation that the plaintiff is an

adulterer charges a “serious crime,”222 whether a charge that the
plaintiff is a voyeur charges a crime of moral turpitude223 and
whether an accusation that the plaintiff is a “thief and a liar”
charges a serious crime when the only “theft” referred to was a few
pieces of paper.224 Sometimes the result of working in these
categories is surprising. For example, it has been held that to state
that the plaintiff has mob connections and might order a hit upon
an adversary does not count as an accusation of crime because it
does not assert that a crime has in fact been committed.225
Business, trade or profession. The third category deals with
matters incompatible with the plaintiff’s trade, business, or
profession. The category is especially indeterminate and must be
defined largely as cases arise. It is probably fair to say that it
includes any charges of seriously unprofessional conduct or serious
departure from professional ethics.226 Even a statement that the
plaintiff, a physician, is terminally ill has been held sufficient;227
although such a statement implies no personal fault, it does imply
an inability to carry out a long-term physician-patient relationship.
On the other hand, a mere conclusion or opinion that the plaintiff
is incompetent in her job, without any express or implied assertion
of facts, will probably not be accepted as a sufficient basis for a
defamation claim.228
Reflection on plaintiff’s business. It has been suggested that
either the words or the circumstances must connect the defamatory
assertion with the plaintiff’s vocation,229 but if that is too strong, it
is at least true that the statements must reflect upon the proper
conduct of, or reputation in230 the plaintiff’s business, trade, or
profession and not merely upon the plaintiff’s general
characteristics.231 For example, the accusation that the
961
plaintiff, a landlord, had threatened the defendant’s life and

tried to bribe a police officer does not reflect upon the plaintiff’s
status as a landlord and hence is not actionable without proof of
pecuniary damages.232
Slander per quod and the requirement for special damages or
pecuniary harm. Unless the slander falls in one of the four
categories, the slander is called per quod and the plaintiff must
plead and prove “special harm.” Special harm in this instance
means specifically identified pecuniary harm resulting from the
slander.233 Special harm in this sense is not the same as actual
harm, which includes any actual loss to reputation, whether
pecuniary harm results or not.234 As a result of the special or
pecuniary harm rule for slander per quod, the plaintiff who suffers
no loss of anything of pecuniary value but suffers a proven loss of
reputation and resulting emotional harm has no slander claim at
all.235 The rule equally implies, however, that if the plaintiff can
prove some slight pecuniary loss, she recovers all her damages,
including loss of reputation and emotional harm.236 Pecuniary loss
is easy to find in the loss of a job237 and in the loss of customers or
business income238 but it can take the form of “any material loss
capable of being measured in money,” such as the loss of a free
cruise.239 It has been said that anticipated loss that has not
actually occurred at the time of trial, however, is insufficient to
permit the slander per quod action.240 However, if such loss is
proven with the degree of certainty required to establish other
future damages, it is not easy to see why that item of damage
should be ruled out here.
Reform. Both the damages rules for libel and those for slander
are extreme in different ways. The libel rules might be reformed by
eliminating the presumption of harm and requiring some evidence
that actual harm occurred.241 The slander rules might be reformed
in the other direction, by permitting the plaintiff to prove a real
loss of reputation even if it did not result in pecuniary harm, at
least where the plaintiff must also prove that the defendant was
guilty of publishing a knowing, reckless, or negligent
962
falsehood. Major commentators have suggested one or more of

these reforms242 and several courts have said that proof of actual
damages is now required in all defamation cases.243
Rule that all libel is libel per se. The common law rule was that
all libel was actionable without proof of harm; harm to reputation
was conclusively presumed once defamatory content was
published. In addition, the plaintiff could of course recover for any
actual damages proved, including actual loss of reputation and
distress, whether or not the plaintiff suffered pecuniary loss. The
rule can be expressed by saying that all libel is libel per se (or
“actionable per se”).244 That remains the rule followed in many
courts245 and by the Restatement246 where the constitutional
decisions do not compel a different result.247 The rule authorizes
the jury to award substantial damages even if no loss of reputation
has been proved,248 although the defendant may present evidence
tending to show that damages were limited.249
The contrary rule of libel per quod. However, in the 19th
century, a number of courts began to say that some libel was “per
quod,” meaning that after all the plaintiff would be required in
libel as well as in slander cases to prove pecuniary loss in order to
recover. But these courts did not provide a parallel set of rules for
libel and slander. Slander per quod was any slander not falling into
one of the special categories, while libel per quod was any libel that
was not defamatory “on its face.”250 Perhaps most courts adopt
some form of the libel per quod rule requiring proof of pecuniary
(not merely actual) damages, but it has been argued that many of
the earlier cases identified with the per quod rule were actually
cases of injurious falsehood where pecuniary harm is regularly
required in any event.251 Whether few or many, the cases have
managed to add technicalities and complications to a body of law
already known as a lawyer’s labyrinth.
963
Example of statement not defamatory on its face. If the

defendant published a statement that the plaintiff was the only
person present at T’s home during the entire day yesterday, the
statement on its face seems innocuous. However, if the recipient of
the statement knows that T was murdered at his home during the
day yesterday, the statement can be understood to accuse the
plaintiff of murder. Unless some qualification applies,252 the
traditional libel per quod rule would require the plaintiff to prove
pecuniary harm even though the plaintiff could prove by extrinsic
evidence that the statement was reasonably understood to accuse
the plaintiff of a felony.253
Relevance of slander categories in libel per se/per quod cases.
Confusion is the norm for defamation cases. Although “not
defamatory on its face” is the test of libel per quod, some courts
define libel per se in terms of the slander per se categories even
when they also define libel per se as defamation that does not
require extrinsic evidence.254 A court may state both the extrinsic
evidence test and the test based on slander per se categories
without explaining how they can both be tests of libel per se.255 Or
a court may insist that libel is per quod unless the plaintiff meets
both tests, in which case, the plaintiff must prove pecuniary harm
unless the defamatory quality of the publication is apparent on its
face without resort to extrinsic facts and the publication accuses
the plaintiff of conduct that falls within one of the slander per se
categories.256 Sometimes other consequences of the per se/per quod
classification have been attached, too, so that if the libel is not per
se, the plaintiff may be required to prove falsity and fault not
required in the traditional common law libel cases.257
Rationales for per quod rule. Rationales for a per quod rule are
also poorly developed. One possibility, suggested above, is that in
one type of libel per quod—when extrinsic facts are required to
show any defamatory meaning at all—the publisher is not likely to
be at fault and perhaps should not be held strictly liable unless the
plaintiff suffers some special damages. Another is that when libel
is not apparent on the face of the publication, the plaintiff is likely
to suffer little harm; in that case, so the reasoning might go, it is
reasonable to require proof of special damages.
964
Inadequacy of rationales. Both rationales are now deficient.

First, the requirement of pecuniary loss rather than actual harm to
reputation is as artificial here as it is with slander. Second, fault is
now often required by constitutional and even common law
decisions; when it is required, the artificial technicalities of libel
per quod cannot be justified as an indirect and complicated way of
preventing strict liability. If fault is the hidden issue in libel per
quod cases, the court can simply require proof of fault in all cases
or at least when extrinsic facts are required to show defamatory
meaning.258 Third, the extrinsic facts that show defamatory
quality may be well known to both the publisher and the readers.
The “common-sense idea [is] that a fact not expressed in the
newspaper but presumably known to its readers is part of the
libel”259 so in all such cases the requirement of special damages in
the sense of pecuniary loss rather than actual harm is out of place.
The complex case of “defamatory” credit reports. Identity theft
and similar cases aside,260 aspersions on the plaintiff’s
creditworthiness have been treated as defamation.261 Courts
recognizing the claim for aspersions on creditworthiness have
sometimes invoked two rules that bring the claim close to the
injurious falsehood rules. First, in some jurisdictions, courts may
invoke the per quod rule, saying that the plaintiff would be
required to show pecuniary loss.262 Second, courts traditionally
interposed a privilege in favor of the defendant who provided credit
information to actual or potential creditors or other persons with a
legitimate interest.263 The privilege in most courts was lost only if
the credit reporter acted in bad faith or with malice, or engaged in
excessive publication.264 The end result of those rules turned the
claim, nominally one for defamation, into something close to the
more restricted injurious falsehood claim.265 However, Congress
passed the Fair Credit Reporting Act266 in 1970 and has since
amended it. That statute may provide a better set of rules than the
common law libel claims.267
965
C. DEFENSES
§ 37.11 Absolute Privileges and Common Law
Qualified Privileges
Absolute Privileges or Immunities
Absolute privileges. Although the common law defamation
plaintiff could make out a case without proof of fault, the defendant
might defeat the claim by presenting the affirmative defense of
privilege. Privileges are either absolute or qualified. A privilege is
described as “absolute” when it prevails despite the defendant’s
malice, which, under common law notions, involved ill will, spite,
improper purpose, or the like. The privilege is in effect a complete
immunity.268 Although it protected malicious statements as well as
others, it must be remembered that even the defendant who spoke
with ill will might nevertheless have reasonably believed in the
truth of what he said.
Recognized categories of absolute privilege. Subject to certain
limitations, the absolute privilege applies principally to the
following categories, discussed further below: (1) judicial
proceedings and certain preparations therefore; (2) legislative
proceedings; (3) to a limited number of executive publications; (4)
publications consented to, (5) publications between spouses;269 (6)
publications required by law,270 and (7) any absolute privilege
accorded by statute, including the immunity of internet service
providers for defamatory material posted by others.271
Speech protections. In addition, some states, proceeding from
the constitutional right to petition government under the so-called
anti-SLAPP statutes, give special protections to communications
made in the course of participation in public affairs.272 Although
legal professionals sometimes use the term “constitutional
privilege” to describe one or more of the constitutional speech
protections, those rules are not technical privileges. They do not
shield defendants by offering them affirmative defenses but rather
require the plaintiff to establish certain facts or characteristics in
the first place.
Judicial and Quasi-Judicial Proceedings and Complaints to
Police
Judicial and quasi-judicial proceedings. The absolute privilege
in judicial and quasi-judicial proceedings protects judges and other
judicial officers with respect to statements made in the
performance of judicial functions and having some relationship to
those functions.273 The privilege also protects defamatory matter
in pleadings,274 and statements made by attorneys, parties,
witnesses, and jurors so far as they are involved
966
in and related to judicial proceedings.275 As this privilege

perhaps implies, there is no separate tort of perjury.276 Attorneys,
parties, and their representatives, as well as witnesses, may also
be absolutely protected from liability for communications made in
preparation for trial277 or in connection with post-trial
determinations.278 Even statements made in soliciting a purely
potential client for a merely possible lawsuit have been granted
absolute protection.279 So have letters written as provided by a
settlement agreement, even when those letters are not part of
public records.280 The privilege has been extended to
administrative proceedings that are adversary and quasi-judicial,
that is, when they apply law to facts and are subject to judicial
review.281 Several courts have held that even an individual’s out-
of-court charge or a report to police is absolutely privileged and
that the privilege will defeat all claims except a valid claim for
malicious prosecution and perhaps a civil rights claim.282
Occasion and content must be privileged. The publication is not
protected by the absolute privilege unless both the occasion for
publication and the content of the publication have some relation
or “pertinence” to the proceeding. An attorney who makes
defamatory remarks at a press conference or other media
presentation would not ordinarily enjoy the absolute privilege.283
Outside repetition or republication of defamatory statements made
in judicial proceedings may be sometimes denied automatic or
absolute protection,284 and even that providing a copy of a filed
complaint to the media forfeits the privilege, although the
complaint is a public record and available to the press in any
event.285 In such cases, however, the qualified privilege to make a
fair
967
report of public proceedings may protect the defendant, though

the judicial privilege does not.286 The judge who makes a
defamatory remark at lunch or in the course of hiring or firing an
employee is not absolutely privileged.287 Nor is any participant in a
contract suit who simply takes the occasion to let the world know
what he thinks of a business rival who is in no way involved.288
However, statements that have some bearing on the matter at
issue and are made in connection with the proceeding are
protected, even if they would not be admissible in evidence or
would be counted as improper argument.289
Purpose and scope of judicial proceedings privilege. The purpose
of absolute privilege in this context is to immunize participants in
the judicial process so as to assure all concerned that they can
speak truly (or in their client’s interest in the case of a lawyer)
without fear of personal liability or an expensive lawsuit.290 The
immunity may sometimes protect scoundrels and liars, but it has
always been thought necessary, because if each case is judged on
its own merits, honest witnesses and other participants in the trial
cannot be assured of protection from suit. The privilege does not
reflect a rule peculiar to defamation claims but a rule protecting
litigation itself. Consequently, the privilege protects the
communications in litigation whether the plaintiff labels her claim
as one for defamation, or false light, or interference with business
prospects.291 The privilege has even been applied to protect a party
to litigation who induces a settlement
968
by fraud in the litigation.292 At least one scholar has argued

that the privilege does not in fact work to support justice and that
a qualified privilege would suffice.293
Legislative Business
Legislators and aides. Similar policies apply to legislative
proceedings. The United States Constitution provides that “for any
Speech or Debate in either House,” members of Congress “shall not
be questioned in any other Place.”294 State constitutional
provisions, statutes, or common law provides essentially the same
immunity for state legislators295 and sometimes to local council
members.296 The legislative privilege extends to aides engaged in
assisting legislators.297 Legislative functions covered by the
privilege include not only speeches on the floor but committee and
other work related to the business of the legislature.298 They do
not, however, include electioneering or the communication of
defamatory material to constituents outside the business of the
legislature.299
Witnesses and citizen participants. In the view of the
Restatement and a number of courts, the privilege also covers
witnesses or citizen participants at legislative hearings,300 in order
to secure citizen participation in the political process that will more
fully inform legislators.301 This view is most easily supported when
the proceeding has a formal character and procedural safeguards
and when the witness is subpoenaed or gives testimony under
oath.302 When the proceeding merely asks members of the public to
offer their opinions, some courts have rejected the absolute
privilege for witnesses, limiting their protection to the qualified
privilege,303 but others afford the citizen-witness absolute
protection even when he volunteers testimony and even when it is
not given under oath.304
Executive Branch Business
Generally not privileged. The executive branch, including police,
administrators at all levels, and most other governmental
employees,305 is quite different from the judicial
969
and legislative branch. Except in quasi-judicial proceedings

where the absolute judicial privilege would apply, employees in the
executive branch do not regularly operate in structured forums like
the Congress or the judiciary; they are not often subject to
institutional, professional, or even regular political constraints;
they seldom if ever have need of privileges not enjoyed by the
citizens they are obliged to serve. To the extent that they defame
other officials, they are protected by the rules developed under the
First Amendment. To the extent that they defame non-
governmental citizens, immunity is questionable at best. Apart
from statute, executive branch employees were not traditionally
afforded the same broad and absolute immunity granted to
employees in the judicial and legislative branches.
Federal executive branch immunities. At the federal level,
however, Congress has immunized all federal employees for all
torts within the scope of their employment.306 In doing so, it
substituted the government itself as a potential defendant, but
only under the terms of the Federal Tort Claims Act, which leaves
the government itself immune in many instances and specifically
immune in suits for libel or slander.307 Congress did not abrogate
the constitutional constraints upon federal officials,308 so the
defamed plaintiff may have a direct constitutional claim against
the official.309 However, the Supreme Court has held that
defamation alone does not violate any constitutional right.310 The
effect is that the federal official is absolutely free to defame citizens
and that neither he nor the government is liable in a common law
or constitutional action for defamation alone.311
State executive branch immunities. The states have come up
with at least four views on immunity for their executive branch
employees. (1) Officers or employees have an absolute immunity for
acts, including defamation, that fall within the scope of their
employment and are considered discretionary, though not for acts
that are considered to be merely non-discretionary or
ministerial.312 (2) High-level officers in the state government are
entitled to the absolute privilege; lower-level officers are not.313 (3)
A substantial number of state executive branch employees are
protected, including those below cabinet rank.314 (4) No state
officers have an absolute common law privilege to defame; their
privilege is qualified and destroyed by malice or knowing
falsehood.315
970
States may316 or may not317 immunize governmental entities

themselves from responsibility for libeling citizens, usually
depending on construction of the state’s statutes on sovereign
immunity.
Consent
Consent as bar. The plaintiff’s consent or apparent consent to
publication of defamatory materials is a complete bar to the
plaintiff’s recovery for defamation.318 The reasons for this rule are
in no way related to the reasons given for the immunities of those
engaged in legislative and judicial functions. Consent is a bar, not
only for reasons of policy, but also for reasons of justice. The
ordinary rules for consent and apparent consent apply,319 so that,
for example, if consent is obtained by fraud, that “consent” is no
bar to the defamation claim.
Applications. One application of the consent rule occurs when
the plaintiff authorizes evaluations of her past work to be
communicated to a prospective employer.320 There are elements of
economic compulsion in some such cases, so it may be that consent
to publish should not be interpreted to permit publication of a
knowing or reckless falsehood. In addition, a rule of fair play that
warns the plaintiff about the nature of the evaluation before
consent is given might also represent good policy.321 Consent is
implied when the plaintiff accepts or applies for membership in an
organization contemplating an investigation of the plaintiff and
report to membership or governing boards322 or other publications
about the plaintiff.323 For example, a priest accedes to the canons
and by implication to communication of complaints by parishioners
to his superiors.324
Internet Communications
General statutory rule. Under the federal Communications
Decency Act (CDA),325 internet service providers who facilitate the
communication of internet messages by others are immune from
liability for the content of those messages. Those who actually
create defamatory content, however, are theoretically subject to
liability for the defamation.
971
Scope. The CDA expresses the immunity of internet service

providers by stating that internet service providers and users are
not to be treated as “publishers.” The immunity protects the
service provider, even though the provider permits posting on the
provider’s web site or its servers carry defamatory email.326 In
addition, the provider has no duty to remove such postings or
emails even when notified of their defamatory content. This result
follows from the courts’ interpretation of immunity for “publishers”
to include immunity for distributors, who constitute a subset of
publishers. Thus the immunity protects the provider whether he is
considered a “publisher” or “distributor.”327 Although the
motivation behind the statute was to promote “decency” on the
internet, the statutory immunity also promotes free speech, since if
a provider were under a duty to remove offensive speech, it would
tend to remove nondefamatory as well as defamatory speech.328
Content providers and users under CDA. The statute does not
protect those who originate and secure publication of defamatory
content. So, in theory, one who posts a defamatory message on an
internet site or sends a defamatory email is not immunized.329
However, such originators may enjoy the near-immunities created
by anti-SLAPP statutes,330 and as a practical matter, anonymous
internet posters can most often stand completely protected by the
shield of anonymity unless courts force providers to reveal their
identity.
Judicial protection of anonymity. Free speech protections
include some degree of protection for anonymity,331 and courts
have rightly exercised caution in forcing internet providers or other
third persons to reveal the identity of those who anonymously post
internet messages, whether the underlying claim is one for
defamation or for something else.332 Although courts have not
agreed on every detail, the more recent decisions have coalesced
around broadly similar rules for the protection of internet
anonymity.333
Indirect content providers-repeaters. More significantly,
perhaps, some courts have created rules that will immunize
providers and users from all responsibility even though
972
the provider or user selected and posted allegedly defamatory

material written by another,334 or even paid a writer to provide it.
The theory is that even though the defendant was instrumental in
creating the libel, it was nevertheless defamation “provided by
another content provider.”335 Complete protection for those who
provide fora and serve as a conduit for information and ideas
seems entirely justified, but a rule that protects users or providers
who set out to defame by quoting the words of others “has
disturbing implications.”336
Common Law Qualified Privileges
Qualified privilege as affirmative defense. Except for the
immunities of internet providers, the absolute privileges discussed
above are relatively circumscribed. The qualified or conditional
privileges, however, cover much ground. The common law imposed
something like a prima facie strict liability in libel cases. If the
plaintiff established that the defendant published defamatory
material about the plaintiff, liability would follow without proof of
any fault. That liability could be avoided only if the defendant was
able to meet the burden of establishing an affirmative defense—
truth or one of the privileges.337 If a qualified privilege was
established, the plaintiff might still prevail by proving that the
defendant had abused the privilege.338
Where plaintiff must prove fault in the first instance. Today, the
plaintiff is often required to prove in the first instance elements
such as reckless falsehood that formerly were relevant on the
affirmative defense of privilege.339 Where such fault has become
part of the plaintiff’s prima facie case, the privilege analysis might
therefore be regarded as superfluous. At the very least, the role of
privilege could be reduced without substantially changing the
defendant’s ultimate liability.
Main qualified privileges. Courts have recognized four basic
qualified privileges: (1) the public interest privilege, to publish
materials to public officials on matters within their public
responsibility; (2) the privilege to publish to someone who shares a
common interest, or, relatedly, to publish in defense of oneself or in
the interest of others; (3) the
973
fair comment privilege; and (4) the privilege to make a fair and
accurate report of public proceedings. Some courts apply a
qualified rather than the absolute privilege when it comes to
publications by certain local officers.340
Interest Privileges
“Legal, moral, or social duty.” The qualified privilege to publish
to protect one’s own interest, the interest of a recipient or the
public, or in a common interest is often introduced in the cases
with antique language: “A communication, made in good faith, on a
subject matter in which the person communicating has an interest,
or owes a duty, legal, moral, or social, is qualifiedly privileged if
made to a person having a corresponding interest or duty.”341 The
language of moral or social duty is little more than a chant; it
seems almost impervious to analysis and at best begs the question
what moral and social duties one might have.342 It seems
particularly strange to say that one might have a “a legal or moral
duty … to protect his own interests” by speaking out.343 A better
approach is to identify particular interests to be served by a
publication that turns out to be defamatory and to weigh those
interests against the risk of reputational loss.
Public Interest Privilege
Charges made to public officials. Citizen complaints about the
supposed crimes of an identifiable person are necessarily
defamatory, but so long as the complaint is made to appropriate
officials who have authority to deal with the case, the publication is
at least qualifiedly privileged.344 A number of the qualified
privilege cases of this sort involve simple reports to the police.345
However, it has been argued that the privilege goes further in two
ways. The first way would afford the privilege to the defendant
who makes defamatory reports to a private person who in turn
would be authorized or privileged to deal with the matter if the
defamatory report were true.346 The second way would afford the
privilege to a defendant who cooperates with a police investigation
by making defamatory statements to third persons when
authorized by police in the course of an investigation.347 While the
first extension of the privilege is logical, the second runs a risk
because it may in effect give police or other officials the privilege of
fostering defamation through the cooperation of a citizen, and may
delegate to the police the power
974
to determine occasions for privilege and to furnish a privilege to

a citizen who is all too willing to take the occasion to defame
another.
Absolute privilege and analogy to judicial proceedings. A few
courts have said the privilege to report a supposed crime to the
police is not merely qualified but is absolute,348 a view that treats
a complaint to the police like statements made in, or in preparation
for judicial proceedings.349 Certainly it is true that when the same
defamatory statement is made as part of a judicial process, the
absolute judicial privilege applies instead.350 Some cases of reports
of authorities do not plainly resemble judicial proceedings. Courts
can regard a communication to a prosecuting attorney in an
ongoing investigation, for example, as similar to statements before
a grand jury and thus in the nature of a judicial proceeding to
which absolute privilege should attach. Or, especially when no
subpoena has been issued and no oath administered, they can
regard communications to the prosecutor as reports to a law
enforcement officer. Accordingly they may provide an absolute
privilege351 or only a qualified one.352 In a Maryland case, public
school students who complained to authorities about their teacher
got an absolute immunity because the teacher was entitled to a
number of procedural safeguards and right to appeal any decision
the authorities made.353
Malicious prosecution claims not barred. The qualified or
absolute privilege to report crime may cut off liability for
defamation but it may leave the victim of a false accusation the
possibility of a malicious prosecution suit if the defamatory charge
actually results in a prosecution without probable cause and other
elements of that tort are shown.354
Publication in Self-Interest, Interest of Others, and
Common Interest
Self-interest. Anyone who has or reasonably believes he has an
important interest at stake is conditionally privileged to protect
that interest by relevant communications to appropriate
recipients.355 For example, one who is defamed by another may
respond to the defamation in any way that appears reasonable so
long as the privilege is not
975
abused.356 What is reasonable depends in part on the

importance of the interest at stake, in part on the need for
publication.357 Possibly some courts would limit the privilege to
cases in which the defendant publishes to a well-defined group of
people.358 The privilege to make a response of this kind is a species
of the self-defense privilege, and like its physical counterpart, it
authorizes the defendant to meet the attack, not to launch a new
one of his own on the same or a different subject.359
Interest of recipient or third person. The same kind of principle
applies to publications made to protect the interest of the
recipient.360 The recipient’s interest, however, must be important
enough to justify the defamatory communication and sometimes
that turns on the relationship between the defendant and the
recipient.361 A stranger might enjoy a privilege to warn the
recipient that the plaintiff was planning to kill him,362 but might
not enjoy a privilege to tell him that his wife was flirting with men
at the tavern.363 The interest of a prospective employer of the
plaintiff is sufficient to justify a former employer in providing
negative evaluations.364
Common interest. Many publications are privileged because
they are made in the common interest of the publisher and
recipient. Common interests are usually found among members of
identifiable groups in which members share similar goals or values
or cooperate in a single endeavor. The idea is to promote free
exchange of relevant information among those engaged in a
common enterprise or activity and to permit them to make
appropriate internal communications and share consultations
without fear of suit.
Examples of common interest privilege. Employers and
employees share many interests in the employment, so an
employee may be privileged to communicate information about
third persons involved with the business365 and certainly to
976
communicate information about fellow employees.366 Equally,

the shared interest warrants the employer’s privilege to explain to
its employees why some of them were discharged.367 The common
interest privilege has protected a franchisee’s discussions with his
franchisor about prospective competitors,368 an insured’s
communications to his insurer about a person alleged to have
caused a loss,369 church members’ communications to each other
about the supposed proclivities of their ministers,370 a speaker’s
professional address to a conference on the subject matter of the
conference,371 and even neighbors’ discussions with each other
about neighborhood concerns.372 Credit reporting agencies and
others similarly situated likewise have been traditionally
privileged to furnish actual and potential creditors with reports on
the plaintiff’s finances.373 The common interest privilege may
protect a lawyer’s communications with his clients, where the
lawyer has an ethical duty to say some unpleasant things in the
fulfillment of such a duty.374
Limiting common interest privilege. Possibly the privilege
permits publication to a limited segment of the public where the
common interest is a strong one,375 but it has not been broad
enough to justify a defamatory report to the general public merely
because material is newsworthy.376 Some cases have characterized
common interest quite narrowly. One decision insisted that
although both the publisher and recipient had an interest in the
matters communicated, the privilege would not apply unless their
interests were based on precisely the same concerns or the same
reasons.377
Dueling privileges—employment discrimination. Employees are
of course privileged to communicate to their employer as well as to
officials that they have been sexually harassed or otherwise
unlawfully discriminated against in violation of statute. Under the
ordinary self-interest privileges, the employer or supervisor would
be qualifiedly privileged to answer the charges in self-defense and
that might include an attack on the truthfulness and motives of
the employee who made the charge. Since a charge of
discrimination is a serious one in most employment environments,
the supervisor or
977
employer who is so charged might also bring a defamation suit

against the employee. The policy problem is that if the employee
who makes a charge of discrimination will be subject to either a
defamation suit or a privileged attack on her motives, employees
may be forced to forgo their rights against discrimination lest they
lose all in defending a lawsuit.
Fair Report Privilege: Reports of Public Documents and
Proceedings
Privilege, scope, and loss. The common law did not traditionally
recognize a privilege to report newsworthy events. The common
law does, however, recognize a qualified privilege to provide a fair
and accurate report of public proceedings and documents and even
to report meetings open to the public and dealing with matters of
public concern.378 The privilege is lost if the report is inaccurate or
unfair, although even in that case constitutional rules may protect
the defendant.379 “Accuracy means ‘substantially correct,’ while
fair means balanced.”380 Fairness requires that the report must
substantially represent the matter contained in the public records
or proceedings381 and provide appropriate context for statements
reported so that the inevitable summary and omissions do not
distort the overall picture.382 Some authority adds that the
privilege does not arise unless the public proceeding or document is
referred to in the report and the reporter actually knows about and
relies upon the document or proceeding.383 Even if the reporter
knows the underlying facts are false, as where he reports a false
statement in a legislative document, he does not lose the privilege,
since he is a conduit for information that citizens have a right to
see for themselves.384
Application. The privilege to report public proceedings protects
fair and accurate reports of judicial,385 legislative,386 and official
executive proceedings or reports387 arrests,388 official hearings or
meetings of public bodies,389 and in a few instances private
978
meetings open to the public where issues of public concern are

discussed.390 The privilege also applies to reports of documents
open to public inspection, including recall petitions,391 police
reports,392 pleadings,393 and others.394 Some cases have extended
the privilege or something analogous to it to protect reports of oral
statements to the press made by police officers and others similarly
placed,395 but this extension may be limited to remarks of police
officers that are part of their official duties, as distinct from police
remarks about the facts of an investigation or the facts of the police
case against the plaintiff.396 The privilege has even been applied to
protect “self-reports”—publication by a witness or pleader of his
own testimony or pleadings—so long as they are not corruptly
designed to foster defamation and protect the defamer.397 The
Restatement Second took the opposite view, providing that one
quoting his own pleading, for example, does not enjoy the
privilege.398 The Restatement now has some support.399 The
privilege is not limited to media publications but protects even a
letter by a private citizen as long as it fairly and accurately reports
a public proceeding.400
Rationales. The privilege is based in part on the principle that
government activities must always be conducted in the daylight of
public scrutiny and in part on the right of members of the public to
read public materials for themselves—the reporter being a kind of
agent for the readers who as a practical matter cannot always
exercise their rights to be present or to read public documents on
file.401
Judicial action rule for pleadings. The Restatement and a
number of courts implicitly reject the second ground by insisting
that pleadings cannot be reported, even accurately and fairly, until
they have been subjected to some kind of judicial action.402 The
fear behind the Restatement’s version is that intentional defamers
will file defamatory pleadings protected by the absolute judicial
immunity, and then spread the defamation by reporting those
pleadings under the protection of the qualified privilege
979
to report public documents. There is case support for the
Restatement’s narrow view of the privilege,403 but a number of
more recent decisions hold that the privilege applies as soon as the
action is commenced.404
Reports of News—Neutral Reportage
History. Traditionally, the common law recognized no privilege
to report defamatory matter simply because it was newsworthy.
The absence of a privilege, combined with the rule that repeaters
are liable for defamation, meant that a newspaper could be held
liable for reporting a newsworthy event or accusation if it was also
defamatory. The fact that events or accusations took place in public
would not itself provide a privilege.
Development of rule. However, in Edwards v. National Audubon
Society,405 the court held that at least under some circumstances,
the press would be privileged to report serious and defamatory
charges made against a public figure by responsible organizations
as part of a controversial public issue. The court appeared to have
in mind an analogy to the fair reporting privilege for public
proceedings and documents; the reporter’s doubts about the truth
of the statements would be irrelevant. “What is newsworthy about
such accusations is that they were made. We do not believe that
the press may be required under the First Amendment to suppress
newsworthy statements merely because it has serious doubts
regarding their truth.”406 The Edwards court called its rule a
privilege of “neutral reportage” based upon the First Amendment.
A number of courts have rejected the neutral reportage
privilege.407 And of course courts may accept the principle but hold
that it is inapplicable on the facts, as where the reporter’s stance is
not neutral at all but actually seconds the defamation.408 The
Supreme Court has not passed on it. A few courts have adopted the
privilege in some form;409 some have avoided passing on it.410
State development. Courts would be free to accept the privilege
as a matter of state law even if the Constitution does not dictate
such a privilege. Many cases, however, have used both ordinary
and arcane doctrine to relieve defendants of liability. Some
decisions more directly seek protection by expanding the fair report
privilege to include reports of things like a witness’ repetition for
television cameras of testimony he gave in court,411 a governor’s
press conference,412 a private meeting,413 and even unofficial
remarks of a
980
member of Congress.414 Other lines of decision have reached

results similar to those under the neutral reportage rule, not by
creating a privilege, but by administering rules of truth or fault to
protect news reports. Some of these simply change the ordinary
truth rules415 when a defendant reports newsworthy but false
accusations, so that defendant is regarded as publishing the truth
if he accurately reports the false accusation itself, even though its
sting is false.416 Another line of decisions holds that the defendant
who publishes defamatory material is not at fault and not liable if
he relied on previous publications of the same defamation by
others.417 Taken as a whole, the decisions come increasingly close
to a newsworthiness privilege, so frank adoption of the privilege
seems quite possible. If the neutral reportage privilege is to be
adopted, its contours almost certainly require further thought.418
Exceeding scope of privilege. In some instances the claimed
privilege never arises because defendant’s publication went beyond
the scope of the privilege.419 For instance, an insurer canceling a
policy may be privileged to state concerns about the insured, but
not irrelevant concerns about her husband.420
Fault. If the defendant shows that the publication was
privileged, however, he is not subject to liability unless the plaintiff
then sustains the burden of proving that the defendant abused the
privilege.421 Abuse is usually shown by proving some species of
fault; in most instances proof that the defendant was negligent did
not traditionally suffice to show abuse of the privilege.422
Depending upon the privilege asserted, abuse can take several
forms.
Excessive publication. When the facts or the nature of the
privilege calls for publication only to a limited group, the privilege
is lost by excessive publication.423 For
981
example, if the defendant has a common interest privilege to

discuss church affairs with fellow church members, the privilege
would be lost if he published defamatory material about church
affairs on a radio talk show.424 What is excessive is determined in
part by the nature of the privilege, in part by practicality. A
defendant is entitled to use a method of publication that involves
an incidental communication to persons not within the scope of the
privilege. If an employer is privileged to communicate materials to
its employees in a company newsletter, the fact that the employees
will sometimes circulate the letter in the community at large does
not necessarily reflect excessive publication.425 In contrast, a
doctor, writing letters to individual patients to explain the
departure of another doctor from the clinic, may be publishing
excessively if he sends copies of the letter to physicians in other
states.426
Inaccuracy in reporting public documents and proceedings. The
privilege to make a fair report of public documents and proceedings
is lost by substantial inaccuracy or unfair or slanted reporting,
regardless of the publisher’s intent. “If the gist or sting of the
defamation in the official report is the same as the gist or sting in
the news account, then the news item is a fair abridgement of the
proceedings. The accuracy of the summary, not the truth or falsity
of the information being summarized, is the ‘benchmark of the
privilege.’ ”427 Neither the publisher’s knowing falsehood nor his ill
will is logically irrelevant, since publication of public documents
and official proceedings is in the public interest. Either the
publisher is the “agent” of the public which is entitled to read the
original document, or the publisher is serving the public good by
providing the basis for public monitoring of government.
Consequently, the privilege is not lost when the publisher harbors
“malice or knows that the public document contains defamatory
falsehood.”428 Some authority, however, states that the privilege is
lost if the public information is published with common law
malice.429
Common law malice. The common law traditionally held that a
privilege is abused or lost if the plaintiff showed that the defendant
acted out of common law malice, meaning spite, ill will, or any
purpose other than the one for which the privilege was intended to
serve.430 Some courts continue to repeat the old rule that the
defendant’s
982
spite or ill will suffices to destroy the privilege,431 but the

emphasis appears to be shifting to require proof, not merely that
the defendant had unpleasant subjective motives, but rather that
he was objectively at fault because he knowingly published a
falsehood, or else was reckless, or at least negligent, with respect to
the truth.432 Malice in this sense could be shown by evidence that
the defendant’s chief motivation in publishing the defamation was
based upon “ill will, hostility, threats, rivalry,”433 a direct intent to
injure, or a reckless disregard of the reputational consequences.434
Occasionally courts say they permit an inference of common law
malice from the intemperate or abusive language of the publication
itself.435 When a privilege exists, the common law presumption of
malice from the mere publication of defamation disappears.
Malice that does not motivate publication. However, evidence of
ill will is not by itself enough; the trier must have a basis for
believing that the ill will motivated the publication. “If the
defendant’s statements were made to further the interest protected
by the privilege, it matters not that defendant also despised
plaintiff.”436 Even if one of the motives for publication was
improper, the privilege is not lost unless the improper motive is the
predominant one.437
§ 37.13 Revising Privileges After the Constitutional
Cases
Two differences in constitutional fault. In a series of decisions
beginning in 1964, the Supreme Court held that the First
Amendment’s free speech guarantee requires the libel suit plaintiff
to prove fault in a wide band of cases described in later sections.
For constitutional purposes, the treatment of fault differs in two
distinct ways. First, the common law privileges introduced fault
defensively, but under the constitutional decisions governing
certain claims, the plaintiff must prove the defendant’s fault as
part of the plaintiff’s prima facie case. If the plaintiff’s proof of
fault in her prima facie case would also suffice to defeat any
privilege, the privilege issue becomes superfluous. Second, the
fault sufficient to defeat the common law privilege was often a
matter of motive or a bad state of mind, not desire to utter a
falsehood; but under the constitutional decisions, the fault to be
proven is the defendant’s fault with respect to accuracy, such
983
as intent to publish a falsehood. In particular, the plaintiff must

prove either knowing or reckless falsehood or something like
negligence with respect to the truth, but in neither case is the fault
determined by motive. This difference is important because under
the constitutional decisions a defendant’s subjective motives are of
no interest as long as he believed (or sometimes reasonably
believed) he was publishing the truth.
Potential common law responses. To avoid needless complexity,
the common law could respond to these constitutional changes by
(1) putting the burden upon the plaintiff to prove some kind of
fault in the first instance and dropping the whole privilege-defense
approach applied in the “interest” privileges; and (2) using the
fault concepts and terminology applied in the constitutional cases
and dropping the malice and motive approaches to fault on the
ground that one set of fault principles is quite sufficient and that
using two confuses and complicates needlessly. Specifically, the
plaintiff would be required to prove knowing, reckless, or at least
negligent falsehood in all cases. The degree of fault required could
vary according circumstances, just as it does in the constitutional
cases. Such a common law response would help simplify and
modernize libel law. Under this approach, if the plaintiff proves the
requisite fault as part of her case, there is no need to reconsider
fault again in a defense. If she does not prove fault, her prima facie
case fails, and the issue of privilege is again unnecessary.
Restatement. The Second Restatement takes a view something
like this in providing that where common law malice formerly
destroyed a privilege, the privilege would now be destroyed only by
proof that the defendant knowingly or recklessly published a
falsehood.438 Thus proof of knowing or reckless falsehood as part of
the plaintiff’s prima facie case would destroy any of the interest
privileges.439 None of this applies, however, to the privilege of fair
reporting of public materials, which turns on accuracy and
fairness.
Authorities. The implications of the constitutional changes have
not been universally recognized and the jurisprudence of privilege
has not fully developed these ideas. Some courts have not altered
their approach to the common law privilege in light of the
constitutional decisions. Among those courts that have modified
their abuse of privileges rules, some, with the Restatement, drop
common law malice out of the picture and hold that the interest
privileges are destroyed only by knowing or reckless falsehood.440
Alternatively, courts may require the plaintiff to prove knowing or
reckless falsehood as part of her prima facie case, so that the issue
of privilege is implicitly decided before it is reached even when
constitutional rules do not require such a
984
result.441 A third reaction to the constitutional decisions treats

either knowing or reckless falsehood or common law malice as
sufficient to destroy the privilege.442
Petition and association. The First Amendment guarantees the
right to petition government. Petitioning activity is understood in a
broad sense to include all kinds of public participation in issues
facing governmental bodies and even issues that may face them in
the future. Such petitioning activity is not protected by absolute
immunity,443 but is constitutionally protected in the same way as
other forms of speech and protected by antitrust law.444
Statutory protections. Following a series of articles and speeches
claiming that individuals who speak out on public issues are
subject to retaliatory lawsuits on a vast scale,445 a number of
states enacted statutes providing special absolute immunities446 or
qualified immunities447 to citizens who exercise their right to
petition by speaking on
985
public issues448 or by addressing public officers or agencies,

including courts,449 to express their claims or grievances.450 The
statutes provide protection by authorizing a special motion to
strike or dismiss when it appears that the suit against the
defendant, whether for defamation or otherwise,451 complains of
the defendant’s petitioning activity on a matter of public
interest.452 The motion must be granted unless the plaintiff can
convince the court that she will probably prevail on the merits.453
If speech counts as petitioning activity, the motive for the speech
would seem to be irrelevant to the statutory immunity.454
Similarly, statutes apply to protect the defendant’s petitioning
activity even if the plaintiff has no intent to chill the defendant’s
exercise of this constitutional right and even if the plaintiff’s suit
has no actual chilling effect.455
Varied standards. Case results are somewhat dependent upon
statutory terms. Some authority protects even those defendants
who indulge in knowing or reckless falsehood,456 but other
authority holds that the plaintiff may prevail by proving that the
defendant’s petitioning activity or speech is without factual or legal
basis,457 a test that sounds similar to the knowing or reckless
falsehood test used in First Amendment libel cases.458 Similarly, it
has been held that the defendant cannot successfully invoke the
986
anti-SLAPP statutes to protect speech or petitioning activity

that was illegal as a matter of law.459
Attorney fees, discovery and unequal protections? The statutes
also provide for attorney fee awards to the defendant who prevails
on the special motion to dismiss460 as well as a halt to discovery.461
These statutory provisions raise the question whether the statutes
adequately protect the plaintiff’s own right to petition for redress of
grievances by way of a lawsuit.462 As the Massachusetts court said,
“By protecting one party’s exercise of its right of petition, unless it
can be shown to be sham petitioning, the statute impinges on the
adverse party’s exercise of its right to petition, even when it is not
engaged in sham petitioning.”463 New Hampshire has held that
such a statute would be unconstitutional as a deprivation of jury
trial rights.464
D. CONSTITUTIONAL LIMITATIONS ON
RECOVERY
First Amendment. The First Amendment to the United States
Constitution applies through the Fourteenth Amendment465 to
restrict some liabilities for defamation. The Constitution may
similarly restrict other torts growing out of communication or
otherwise,466 but this chapter concerns only the impact on
defamation claims. In some cases, the First Amendment completely
immunizes publishers of allegedly defamatory material; in others,
it adds new elements to be proved by the plaintiff and a
qualitatively heavier burden of proving them by convincing
evidence.
Constitutionally overriding common law rules. Beginning in
1964, the Supreme Court recognized that the First Amendment’s
free speech provisions imposed limits on common law strict
liability for defamation. The common law rules did not require a
defamation plaintiff to prove fault, falsity, or actual damages. Each
of these elements, sometimes all of them, is now constitutionally
required in some cases. These elements are only minimum
constitutional protections for speech; the states are free to restrict
tort liability further. The exact constitutional requirements vary,
however, depending largely upon the status of the plaintiff, so the
rules for public officials and public figures are different from those
applied to private persons.
987
Some basic constitutional modifications. Much contemporary

litigation in defamation actions is concerned with the First
Amendment’s guarantee of free speech and press. Whether
freedom of speech and freedom of the press are merely two
instances of the same underlying freedom or not, together or
separately they have come to modify common law rules of
defamation liability:
(1) Issues of public concern and public official or figure.
If the plaintiff is a public official or public figure, she is
required to prove (a) falsity of the defendant’s publication,
and (b) that the defendant knowingly or recklessly published
the falsehood.
(2) Issues of public concern, private plaintiff. If the
plaintiff is not a public official or public figure but the issue
is one of public concern, the plaintiff is required to prove (a)
falsity, (b) “some fault” and (c) actual damages.
(3) Opinion. In addition, statements that do not assert
matters that are provably false—often called opinion
statements—are protected, at least where issues of public
concern are involved.467
(4) Private issues, private plaintiffs. Purely private
persons are not necessarily governed by these rules where
the defamation involves no issue of public concern.
Rationales for protecting criticism of public officials. The
constitutional basis for rules requiring fault and falsity lies in the
First Amendment to the United States Constitution, which broadly
protects free speech against legal constraints. Because libel
judgments, or even the possibility of a libel suit, can promote self-
censorship that chills criticism of government and other public
discussion, defamation actions potentially infringe rights of speech,
rights of association and rights to petition government. This is
most especially true when the plaintiff is a public official suing for
a publication that may throw light on governmental operations.
Criticism of government is at the very heart of the free speech
right and such criticism is focused most often and most effectively
on a particular official. For these reasons, and because some
factual error is inevitable in robust debate, the strict liability
imposed at common law is problematic in a democratic society.468
In a sense, it is the public, not the courts, that must always judge
public officials. Ideas like these were developed at length in the
landmark 1964 decision, New York Times Co. v. Sullivan.469
988
Rationales for the Modifications

Rationales for protecting criticism of public figures. Three years
after the Times-Sullivan decision, the Supreme Court extended its
knowing or reckless falsehood rules to cover publications about
public figures who were not public officials.470 The reason given in
Chief Justice Warren’s opinion was that public figures can exercise
informal power and influence over government and social decisions
that may be as important as the power exercised by officials.
However, the Court also seemed to say that public figures had
ready access to media so that they could counter criticism, and
later the Court seemed to put a great deal of emphasis on the fact
that public figures are ordinarily in the public eye because they
choose to be.471
Rationales for protections for private persons, issues of public
concern. Observers think that public officials and public figures in
the constitutional rules were really stand-ins for efforts to foster
freedom of speech about public issues. In fact, in 1971, the
governing plurality in Rosenbloom v. Metromedia472 adopted the
view that publications about matters of public concern fell under
the Times-Sullivan protections. However, three years later, in
Gertz,473 a divided Court rejected the Rosenbloom decision. The
Gertz argument for the proposition that “some” fault was enough
in private plaintiff cases turned on its view that First Amendment
values had to be accommodated to the states’ interests in
redressing defamation. The Gertz Court thought the state’s
interest in redressing defamation of private persons was much
stronger than its interest in redressing defamation of public
figures, who, after all, would ordinarily have often chosen the
limelight and its risks of defamation. Given the Court’s balancing
of the states’ general interest and the First Amendment concerns,
the Court hit on the requirement of “some fault” plus actual
damages as the appropriate compromise or “accommodation” of
those interests.474
Rationales for no constitutional protections: private persons,
issues not of public concern. In the case of private plaintiffs suing
for defamation that does not involve issues of public concern, the
same balancing of state interests against the First Amendment led
the Court to hold in Dun & Bradstreet that the states were free to
revert to the common law of presumed damages. 475
An extra layer of constitutional analysis. The constitutional
rules requiring fault, falsity, and damages hold a potential for
rationalizing and simplifying the law of defamation. In fact,
however, because the rules vary in each category, much of the
dispute in libel cases now turns on how to categorize the plaintiff
and the alleged defamation. The result is that new layers have
been added to the law of defamation and that it has become more,
not less, complex.
Special Rules for Public Issues and Public Official or Figure
Plaintiffs
Fault required in suits by public official and public figures.
Under the rule developed in and after New York Times Co. v.
Sullivan, when the plaintiff is a public
989
official, a candidate for public office, or a public figure suing for

defamation, the plaintiff’s claim must be established by proving
whatever is required under state tort law and, as a constitutional
requirement, that the defendant published (a) a falsehood, (b)
knowing it to be false or acting in reckless disregard whether it
was true or false. 476 If the defendant originally published knowing
of the falsehood or acting recklessly because he entertained serious
doubts about the truth of his publication,477 he would be liable for
repetition by others under the common law rule, even if the
repeaters themselves did not publish knowingly or recklessly.478
“Actual malice” vs. knowing or reckless falsehood. The Supreme
Court characterized its requirement of a knowing or reckless
falsehood as “actual malice.” The term has caused confusion,
because constitutional “actual malice” does not mean common law
malice in the sense of spite or ill will. Instead the actual malice
terminology in the constitutional decisions is only a label applied to
the requirement of knowing or reckless falsehood. Thus, while the
defendant’s knowing falsehood about the plaintiff might be
evidence of ill will or spite, spite without a knowing or reckless
falsehood will not be sufficient where public officials or public
figures are plaintiffs in the defamation action.479 As courts have
said, the constitutional focus on is the defendant’s attitude toward
the truth, not his attitude toward the plaintiff.480 Consequently, it
may facilitate analysis to avoid the actual malice terminology and
specify knowing or reckless falsehood instead.
Quantum of proof and damages. The constitutionally required
elements must be proved with “convincing clarity.”481 This rule for
public official and public figure plaintiffs does not require proof of
actual harm to reputation.482 Thus if the plaintiff makes the
required showing of knowing or reckless falsehood, she will be
constitutionally permitted to recover presumed damages and
punitive damages where state law itself permits such recoveries.483
Fair comment distinguished. The constitutional public
official/public figure rule is not a constitutional version of the fair
comment privilege. The fair comment privilege protects only
“comment” and not errors of facts. In addition, it leaves the burden
upon the defendant to justify the publication. Because the burden
under the Times-Sullivan rule is upon the plaintiff, it is not even
helpful to think of the constitutional rule as a
990
“privilege.” A privilege is sustained only if the defendant carries

the burden of proof and persuasion.
Special Rules for Public Issues and Private Plaintiffs
On issues of public concern—constitutional rules. Constitutional
rules applied to private persons suing for defamation differ
considerably from those applied to public official/public figure
plaintiffs. A private person plaintiff who sues for defamation
arising from publication of matters of public concern must prove
whatever is required under state tort law and that the defendant
(a) published a falsehood; (b) that he was negligent or otherwise at
fault in failing to ascertain or state the truth; and (c) that the
plaintiff suffered actual harm to reputation as a result.
Not only must the plaintiff prove actual harm, but she is limited
to a recovery of “actual damages.” This rule operates to exclude
recoveries of the old common law presumed damages and likewise
to exclude punitive damages unless the plaintiff proves a knowing
or reckless falsehood.484 However, the requirement of actual injury
or actual harm is not a requirement of pecuniary loss; genuine loss
of reputation or emotional harm will qualify as actual injury.485 A
few doubts remain about the exact scope of the rules, for example,
whether they apply only to media publications.486
Added state requirements. States are free to impose more
demanding requirements than those imposed by the Constitution.
Many states impose a negligence standard for private person
plaintiffs where the issue involves public concern, but some require
such plaintiffs to make proof under the more demanding knowing
or reckless falsehood standard.487 The anti-SLAPP statutes may
also, in effect, impose special burdens on private plaintiffs.488
No Special Protections for Private Issues and Private
Plaintiffs
On issues of no public concern. The United States Supreme
Court, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,489
held that when a private person who is neither a public official nor
a public figure sues for defamation arising from publication of
matters that are not of public concern, she need not prove actual
damages as required in the private person, public concern cases.
Thus the common law rule of presumed damages can be applied by
the states to cases in this category if the states are so minded.490
Several decisions have said or assumed that the Dun &
Bradstreet case means that all of the common law rules remain
intact, not merely the damages rule.491 That would
991
mean that in the private person case where the issue is not of
public concern, the states would also be free to presume falsehood
as well as damages, and possibly even to presume that the
defendant was at fault; courts could go back to the old common law
of prima facie strict liability in this class of cases. If the rules
develop along these lines, courts in private person cases will be
required to determine what counts as an issue of public concern.492
Status a question of law. Public officials and public figures come
under the same substantive rule: both must prove knowing or
reckless falsehood. The determination of public official493 and
public figure494 status on any given set of facts is for the judge, not
the jury.
Definitions and limitations. States sometimes have their own
definitions of “official” for various purposes, but those definitions
do not control the constitutional rule. Under the Supreme Court’s
decision in Rosenblatt v. Baer, public officials include, “at the very
least,” all government employees who have substantial
responsibility in government affairs.495
Other factors and limitations. Some courts have added other
significant factors. For example, a public employee whose work
could have an impact on everyday life of citizens or could wreak
social harm might well be considered to be a public official for
purposes of the Times-Sullivan rule.496 These definitions do not
limit the public official category to government employees who
issue orders or those who are at upper levels of the political
hierarchy. There is, however, a limit. The plaintiff is not a public
official under the Times-Sullivan rule unless she holds a position
that “would invite public scrutiny and discussion of the person
holding it, entirely apart from the scrutiny and discussion
occasioned by the particular charges in controversy.”497 In what
seems to be a departure from the text of the Rosenblatt test, some
courts seem to be conflating the public official test with the public
figure test.498
Former public officials and candidates for public position.
Departure or retirement from public office does not make the
activities of public officials of any less public
992
concern. Consequently, discussion of former public officials, at

least in connection with their activities while holding public office,
are protected under the rule for public officials.499 The same
applies to candidates for governmental positions.500
Examples of public officials. A number of persons in
governmental positions easily qualify as public officials because of
their substantial responsibility in the conduct of government
affairs. Federal, state, and local elected officials would almost
always count as public officials.501 So would a good many others
who act in positions of authority, management, or independence in
their sphere of operation.502 Police officers, with their potential for
substantial effects on lives of citizens, are usually held to be public
officials.503 But the same reasoning is not always applied; a few
cases have held that public school teachers and even school
principals, whose effect on the lives of citizens for good or bad is
profound, are not public officials.504 Other courts insist that as
public education is a vital matter to society, public school
principals and teachers are public officials whose capacities can be
discussed under the Times-Sullivan rule.505 Numerous other
government employees have litigated these issues with similar
differences in results.506
Public figures. Because public figures as well as public officials
come under the Times-Sullivan rules requiring the plaintiff to
prove knowing or reckless falsehood by clear and convincing
evidence,507 courts are called upon to determine which plaintiffs
are public figures. The Supreme Court has recognized two
categories of public figure, with
993
different rules governing their status—1) all purpose public

figures and 2) limited purpose public figures.508 These two
categories and the rules that go with each have dominated most of
the judicial effort to determine who counts as a public figure.
All purpose public figures. To prove that the plaintiff is this
kind of public figure, the defendant would rely upon proof that the
plaintiff enjoyed “pervasive power and influence” or “pervasive
fame and notoriety” in public affairs.509 Famous sports figures may
be classed as public figures.510 The decisions as a whole do not
present a uniform picture. Thus while the football player may be a
public figure because of fame, a famous medical doctor511 or a
television reporter who appears daily512 may be placed outside that
category on the ground that they lack pervasive power and
influence in society. Perhaps the slipperiness of the all-purpose
concept is due to the fact that its principle and purpose is not clear
or because rules for all-purpose public figures are less commonly
used than those for limited purpose figures.513
Entities. A public figure is often an individual, but various
organizations including businesses,514 public interest groups,515
charities,516 and religious organizations517 may also count as
public figures who are required to prove knowing or reckless
falsehood in defamation suits.
Limited purpose public figures. To prove the plaintiff is a
limited purpose public figure, the defendant must ordinarily show
not only a controversy, but that the plaintiff voluntarily thrust
herself into the controversy,518 or at least is drawn into it519 and
attempted to influence its outcome. The Supreme Court in Gertz
thought the plaintiff would be a public figure in these cases
because (a) she assumed the risk of public scrutiny by her
voluntary involvement in an issue or controversy, and (b) she
would have access to media and hence to self-defense against
defamatory publications. In such a case, public figure status is
limited to that controversy.520 Some courts have elaborated the two
Gertz points into a series of three to five “factors” to be considered
in determining limited-purpose public-figure status.521 In some
opinions, the “factors” become hard and
994
fast elements that the defendant must prove to show that the
plaintiff is a public figure.522
Relevance of defamatory statements to the plaintiff’s status.
Statements about limited purpose public figures must be germane
to their public figure status,523 but when it comes to public
officials, almost anything is relevant to the public official’s
qualifications, including misbehavior that is remote in time or
considered to be minor or purely personal by many people.524
Clear and convincing evidence. Under New York Times Co. v.
Sullivan, public officials and public figures suing for defamation
are required to prove with convincing clarity525 that the defendant
was guilty of publishing a knowing or reckless falsehood. It has
been said that the convincing clarity or “clear and convincing
evidence” standard requires evidence that must support a firm
conviction that the fact asserted is true.526 The Supreme Court has
said that it will independently review issues of constitutional fact,
which has been interpreted to mean that the appellate judges must
themselves believe the defendant was guilty of a knowing or
reckless falsehood.527
Scope and exceptions. Most courts say the convincing-clarity
standard of proof applies to the issue of falsity as well as to the
question of knowledge of falsity or recklessness,528 but some have
embraced a preponderance of the evidence standard for the issue of
falsity.529 And some courts believe the convincing-clarity standard
is limited
995
to suits against media defendants,530 while others reject any

such special disability for individual speakers.531 The Supreme
Court has never resolved that issue.
Types of evidence. What constitutes adequate evidence is a
crucial issue only touched on here.532 Since the Times-Sullivan
rule clearly requires that the plaintiff must prove more than
common law malice, she must prove fault with respect to the
substantial truth of the defamatory statement, that is, knowing or
reckless falsehood.533 For example, the publisher’s motive to
increase its profits is not evidence of a knowing or reckless
falsehood.534 Nor does the publisher’s ill will or spite prove
knowing or reckless falsehood.535 Similarly, the defendant who is
merely negligent in failing to investigate or otherwise ascertain the
truth of a defamatory statement is not liable to a public official or
public figure plaintiff; by itself, failure to investigate is not
reckless.536
State law under the “some fault” rule. Under the Gertz rule,
even a private person suing for defamation—or perhaps media
defamation—is constitutionally required to prove “some fault”
when the defamation touches an issue that is not of purely private
concern.537 Gertz leaves the states free to set the level of fault
required, but presumably it must be fault in publishing a
falsehood, not “fault” in the sense of common law malice such as
hatred or ill will.538 The states have overwhelmingly adopted
negligence as the standard of fault to be required when a private
person sues.539 Several states have adopted the stronger standard
based upon knowing or reckless falsehood when speech touches
public concerns, even if the plaintiff is a private person and not a
public figure
996
or official.540 A media publisher’s negligence is perhaps most

easily imaginable when the publisher fails to investigate facts and
when such a failure can be evaluated under the professional
standards of journalists.541
§ 37.19 Opinion Statements—Constitutional
Protections
Earlier common law offered no general doctrine protecting non-
factual statements such as statements of opinion542 or statements
ridiculing the plaintiff without the use of any false factual
statement.543
Constitutional requirement; the publication must be provably
false. Beginning in 1964, constitutional rules required the public
official or public figure plaintiff to prove a knowing or at least
reckless falsehood.544 This seems to imply that the plaintiff must
prove falsity of the publication. In Philadelphia Newspapers, Inc. v.
Hepps,545 the Court went further, holding that, at least in some
situations, the plaintiff has the burden of proving falsity of the
putative defamation even when the plaintiff was a purely private
person.
Scope of Hepps. Some uncertainties remain about the scope of
Hepps. In most cases, the plaintiff must bear the burden of proving
falsity of the defamatory sting, but the Hepps Court did not decide
whether the same rule applies (1) when the issue involved in the
defamation is of no public concern; or (2) when the defendant is a
non-media defendant.
Media and non-media defendants. On the latter point, Judge
Sack’s authoritative treatise concludes that lower courts routinely
apply the Hepps rule to non-media defendants and indeed suggests
that in the age of the internet it is hard to tell the difference
between media and non-media.546 In the words of one court, “a
distinction drawn according to whether the defendant is a member
of the media or not is untenable.”547
997
Constitutional “opinion” principle. The constitutional protection

for truthful speech has led to a constitutional principle, expressed
by the Supreme Court in the Milkovich case, that liability may be
imposed for speech on matters of public concern only if the
defendant’s publication contains statements that are “provably
false.”548 Presumably statements would be factual in nature and
therefore provably false if they could be verified or falsified by use
of the senses (had witnesses been present), even if reasonable
inferences were also needed. The same could be said if the
defendant’s statements could be verified or falsified by the
application of accepted scientific or mathematical methods. If not
capable of that kind of verification, the statements would be
protected and could form no basis for liability in a defamation
claim.
The opinion word. Although the Supreme Court rejected any
separate protection for “opinion,” a statement of opinion that
implied no facts at all would not be provably false and hence would
be constitutionally protected. Perhaps for this reason, courts often
continue use the term “opinion” to cover statements that are not
provably false.549 The constitutional rule is thus largely congruent
with the Restatement’s rule protecting opinion statements550 even
though the constitutional rule is expressed differently. The
provably false/opinion rule also correlates to a large extent with
the independent rule that courts will not adjudicate religious
matters.551
The unknown scope of protection for opinion statements. Judge
Sack has suggested that since Milkovich grounded constitutional
protection of opinion-type statements in the provably false rule of
Hepps,552 the scope of Hepps might determine the scope of opinion
protection. In particular, unless Hepps is extended to require
provable falsity of statements involving no public issue, then
opinion statements not involving public issues (or mere invective or
hyperbole) might be left without constitutional protection,553
though common law protection might remain. Evaluative opinions
that imply facts may also enjoy lesser protections.554 Of course,
this makes the means of distinguishing opinion from fact an
important question.555 And state courts are free to adopt more
protective rules for “opinion” statements.556 Name-calling,
rhetorical hyperbole, satire
998
and the like may carry meanings that are not literal. When
their non-literal meaning is perceived, it is often easy to see that
theses communications have no factual content and are therefore
not actionable.557
E. REMEDIES
Defamation cases involve a number of special procedural
rules.558 Once those procedures are satisfied, and a jury finds for
the plaintiff, the usual remedy is money damages.
Defamation law purports to redress claims for harm to
reputation. The specific harms resulting from reputational injury
may vary considerably, and might include presumed damages,
actual but unquantifiable harm to reputation, pecuniary loss, and
emotional distress as well as other consequential damages.
Presumed damages under common law. The common law rule,
which can still govern some cases, allows juries to presume that a
defamatory publication has caused harm to reputation and then to
award substantial sums of money even in the absence of evidence
as to any particular amount of damages.559 However, an award of
presumed damages may be deemed excessive if the defamation is
not serious or widespread, and if it appears to cause neither
serious reputational nor emotional harm.560 The presumed
damages rule may be headed for extinction.561 Commentators have
attacked it, and some states have abandoned it even when the
Constitution does not require them to do so.562
Constitutional limits on presumed and punitive damages. Under
Gertz v. Robert Welch, Inc.,563 the First Amendment is held to bar
recovery of presumed damages when the plaintiff is a private
person defamed on a topic of public concern and evidence of fault
falls short of showing knowing or reckless falsehood.564 In such a
case, the plaintiff can
999
recover only her “actual” damages. The rule excludes both the
common law presumed damages and punitive damages. On the
other hand, “actual” damages permitted in such cases are not
limited to special or pecuniary damages required by the common
law rules in slander cases. For example, actual damages may
include any proven harm to reputation and also emotional harm
without proof of pecuniary loss.565 In addition, if the plaintiff can
go beyond the minimal showing required in Gertz and prove that
the defendant was guilty of a knowing or reckless falsehood,
damages can be constitutionally presumed if state law continues to
permit presumed damages.566
Elements of damages. In addition to damages for estimated loss
of reputation, the award may include damages for pecuniary losses,
so long as they are proximately caused by the defamatory
publication.567 For example, the plaintiff may recover for loss of
employment or harm to her career resulting from the
defamation.568 The plaintiff may also recover for emotional
distress569 and resulting bodily harm,570 and for costs of corrective
advertising by the plaintiff571 and other expenses incurred in
defending her reputation.572 Courts have even allowed loss of
consortium recovery by the spouse of a defamed person.573 So far
as the plaintiff claims actual damages, she must of course prove
them. If the publication has caused loss of business, she may be
required to show how much of the business loss was due to true
portions of the defamation and how much due to the untrue and
defamatory portion.574 And on the ground that excessive damages
may chill free speech, expressing disapproval of the defendant
rather than real
1000
compensation for the plaintiff, a court may scrutinize damages

awards for libel with special care.575
Harm to reputation. Harm to reputation itself, though often not
quantifiable, is the chief item for which recovery is permitted. The
traditional common law rule did not require the plaintiff to prove
that any person believed the defamatory publication,576 but
evidence that people did in fact believe the defamation and that
they held the plaintiff in lower esteem as a result is relevant to
show harm to reputation.577 Equally, evidence that no one believed
it tends to show that little harm was inflicted.578 Other factors
bear on the assessment of reputational loss: Was the accusation
specific or vague, did it touch highly emotional issues or charge
serious departures from well-established and important
community standards, would it tend to be permanent and have
repeated effects, did it reach a large audience or one especially
relevant to the reputational issue? Perhaps the source of the
defamation itself is an important factor. Defamation contained in a
magazine with a poor reputation will perhaps have less effect than
defamation contained in a respected news magazine.579 The
plaintiff’s own existing reputation is of course central to the
estimate of damages. That point requires further attention.
Emotional harm damages without reputational loss. The
plaintiff’s claim for emotional harm is usually that she suffered
anxiety, depression, or other emotional harm because her
reputation was damaged. The question is whether the plaintiff can
sever her claim for emotional distress and avoid constitutional
requirements and defenses. The Supreme Court has held that an
emotional harm claim cannot be asserted for brutal satire that
does not include false statements of fact.580
However, in the Firestone case, the Court permitted the
plaintiff to drop the defamation claim and proceed on an emotional
distress claim standing alone.581 In that case, Time Magazine said
the plaintiff’s husband had divorced her for adultery. This was not
true, although the trial judge had mentioned evidence of
extramarital escapades. In a defamation case, a private person like
the plaintiff cannot recover presumed damages
1001
without proof of knowing or reckless falsehood. One risk of the

stand-alone emotional harm claim based upon publication is that
presumed damages may be allowed under the name of emotional
harm.582 Another possibility is that if a plaintiff is permitted to
drop the defamation claim but recover for stand-alone emotional
harm, evidence of the plaintiff’s reputation would be excluded on
the ground that it would be highly relevant to the defamation
claim but quite irrelevant to emotional harm.583 The result would
be that some plaintiffs might recover damages based upon a loss of
reputation they did not enjoy in the first place. A number of state
courts have avoided these results.584
Punitive damages. When the plaintiff proves a knowing or
reckless falsehood, punitive damages are constitutionally
permissible. This is the level of fault required under the Times-
Sullivan rule for public officials and public figures to recover even
compensatory damages,585 so, as far as the First Amendment is
concerned, no additional fault is required when such plaintiffs
claim punitive damages.
Proof required. When the plaintiff is a private person defamed
in connection with a matter of public concern, she may recover
proven compensatory damages under Gertz upon proof of some
fault such as negligence. But she cannot recover punitive damages
on such proof.586 Only if she goes further and proves knowing or
reckless falsehood can she recover punitive damages.587
Common law damages. When the plaintiff is a private person
defamed on a matter that is of no public concern, Dun & Bradstreet
permits the plaintiff to recover both common law presumed
damages and punitive damages without restrictions imposed by
the First Amendment.588
Damages within limits. So long as constitutional limits are
observed, state rules of punitive damages may determine the grant
or denial of relief. Thus courts often hold that no punitive award
may be made unless compensatory damages are also awarded or at
least proved.589 And in defamation cases specifically, New York
has held that something more than knowing or reckless falsehood
is required to establish a claim for punitive damages; a malicious
motive for publishing the falsehood is also required.590 In
1002
addition, the Supreme Court has held that due process requires
judicial scrutiny of all punitive awards, and that some punitive
awards may be stricken as constitutionally excessive.591
Libel-proof plaintiffs. If the defamation plaintiff already has a
bad reputation on the topic involved in the defamation, her
damages are at least arguably less than if she enjoyed a good
reputation or no reputation at all. Consequently, evidence of the
plaintiff’s reputation prior to publication of defamatory material is
highly relevant in most cases to show that damages should be
limited.592 However, the libel-proof plaintiff doctrines, where
applied, go further by permitting summary judgment for the
defendant on the ground that the plaintiff’s reputation could not be
further harmed by the defendant’s publication.593
§ 37.21 Non-Damages Remedies Including Money
Disgorgement
Restitution
Many people have been confused by the word restitution and
some of them appear to believe that the measure of restitution is
the same as the measure of damages. This may be true in the
criminal cases where the offender can be required to “make
restitution” to his victim. More generally, however, restitution
refers to the defendant’s liability to disgorge gains he has made
from wrongdoing. In that case, his liability is measured by his gain,
not, as with damages, by the plaintiff’s loss. That makes restitution
an attractive measure of liability when the defendant’s tort
provides him extraordinary gain in excess of the plaintiff’s loss.
The publisher of a book, for example, might make great profits
from it, and if the book’s premise and theme defames the plaintiff,
the plaintiff might conceivably prefer to recover the book’s profits
rather than ordinary damages. The limited authority on such
publisher’s liability, however, excludes restitutionary recovery594
and that is indeed in accord with free speech concerns, at least in
the absence of knowing or reckless falsehood.
Injunctions
Quite apart from constitutional constraints, a long tradition has
it that equity will not enjoin defamation.595 To a large extent the
precedents against injunctions are the
1003
products of state law based upon judicial reluctance to censor

speech and sometimes upon state constitutions.596
However, courts have sometimes in effect engaged in
censorship, in effect issuing injunctions against publishing public
records by ordering them to be sealed or even expunged.597 In
addition, although “prior restraint” on speech is a violation of the
United States Constitution,598 cases have held that the
Constitution does not forbid an injunction against repetition of
defamatory statements that have been made in the past and have
been adjudicated to be defamation.599 The question remains
whether even such a constitutionally permissible injunction is
appropriate under state law, especially where damages may be an
adequate remedy or where discretion counsels caution. The scope
and detail of injunctions against speech is of special concern, and
even where an injunction against libel is constitutionally
permissible, it must be tailored narrowly. For example, an
injunction that forbids all repetition of speech adjudicated to be
defamatory would be too broad, because such an injunction must
not exclude the right of the defendant to repeat her claims to public
officials in seeking redress of grievances.600
Retraction and Reply
The damages action for defamation is expensive to defendants,
risks a chill on free speech, and is so clogged with distinctions and
decision points it cannot be counted upon to clear the plaintiff’s
name, to provide measured redress of her rights, or fully protect
the rights of speakers and society. Critics have often proposed
reforms, but most of these proposals have their deficits, too.
Retraction. The common law recognized that the defendant’s
full and fair retraction of the defamatory statement would be
admissible in evidence as tending to show that harm to reputation
may have been minimized601 and as tending to negate grounds for
punitive damages.602 Most states have enacted statutes governing
retraction by media publishers.603 If no statutory demand is made
for retraction or if a statutory retraction is published, then
damages may be limited, for example, by eliminating presumed
damages. The statutes do not require retraction and almost
certainly could not
1004
constitutionally do so, partly for reasons that appear in the next

paragraph and because an official, governmentally prescribed
“truth” would raise even more fundamental questions. The
retraction-statute cases litigate various collateral issues such as
the sufficiency of the demand for retraction, or the retraction itself,
its timing, and other statutory terms.604
Right of reply. Conceivably a statute might structure some kind
of intelligible right of reply to media defamation in lieu of a
damages recovery. Florida once had a rather inadequate version of
such a statute, triggering a right of reply whenever the plaintiff
was “assailed” in a newspaper, which was then required to devote
equal space to the plaintiff’s reply. The Supreme Court held this to
be an unconstitutional intrusion upon the editorial decisions of the
press, a kind of compelled speech.605
________________________________
1 E.g., Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660
S.W.2d 933 (1983). For various kinds of reputation and injury to it, see
David A. Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary
L. Rev. 747 (1984).
2 Reputation is not, however, protected under the United States
Constitution. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405
(1976) (no action may be brought under § 1983 for defamation carried out
under color of state law).
3 Chapter 39.
4 Chapter 38.
5 Chapter 43.
6 See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876,
99 L.Ed.2d 41 (1988); Hatfill v. New York Times Co., 532 F.3d 312 (4th
Cir. 2008).
7 See Texas Beef Group v. Winfrey, 11 F.Supp.2d 858, 864 (N.D.
Tex. 1998); Hall v. United Parcel Serv. of Am., Inc., 76 N.Y.2d 27, 555
N.E.2d 273 (1990).
8 See 3 Dobbs, Hayden & Bublick, The Law of Torts § 649 (2d. ed.
2011 & Supp.).
9 See Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809 (Mo. 2003).
10 The capacity of libel to incite a breach of the peace was given as
one reason for imposing criminal liability in Coke’s De Libelis Famosis, 50
Co.Rep. 125a, 77 Eng. Rep. 250 (Star Chamber 1605).
11 On all this early development, see R.H. Helmholz, Introduction,
Select Cases on Defamation to 1600 xiv–xv (Selden Society 1985).
12 Punishment for defamation of important persons goes back to a
statute of 1275. Unimportant persons were not so protected for centuries.
13 De Libelis Famosis, 50 Co.Rep. 125a, 77 Eng. Rep. 250 (Star
Chamber 1605).
14 S.F.C. Milsom, Historical Foundations of the Common Law 389
(2d ed.1981).
15 See Vincent Buranelli, The Trial of Peter Zenger 103 (1957);
Leonard Levy, Freedom of the Press from Zenger to Jefferson 45 (1966).
16 Clark v. Binney, 19 Mass. 113 (1824).
17 Notably the doctrines of libel per quod and innocent construction.
See § 37.10.
18 New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686, 95 A.L.R.2d 1412 (1964). See § 37.15.
19 Lawrence v. Grinde, 534 N.W.2d 414 (Iowa 1995).
20 See, e.g., Senna v. Florimont, 196 N.J. 469, 958 A.2d 427 (2008)
(but holding that fault is now required when the publication touches on an
issue of public concern); Doss v. Jones, 5 Howard 158 (Miss. 1840) (“the
law imputes malice or an evil intention in all cases, when words actionable
in themselves are spoken”).
21 See Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485
A.2d 374, 379 (1984) (“falsity of the defamatory words is presumed,” truth
is an affirmative defense), rev’d, Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (constitutional rules
require the plaintiff to prove falsity, at least in certain cases).
22 See Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 143 Vt.
66, 76, 461 A.2d 414, 419 (1983), aff’d, Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593
(1985); In re Storms v. Action Wis., Inc., 309 Wis.2d 704, 748, 750 N.W.2d
739, 761 (2008) (“Damages are presumed from proof of the defamation by
libel”; but holding that constitutional fault levels were required when a
public figure sues).
24 See Seaton v. TripAdvisor, LLC, 728 F.3d 592 (6th Cir, 2013)
(applying Tennesssee law); Blodgett v. University Club, 930 A.2d 210 (D.C.
2007); Morgan v. Kooistra, 941 A.2d 447 (Me. 2008); Higginbotham v.
Public Serv. Comm’n of Md., 412 Md. 112, 985 A.2d 1183 (2009); Smith v.
Anonymous Joint Enter., 487 Mich. 102, 793 N.W.2d 533 (2010); Sullivan
v. Baptist Mem’l Hosp., 995 S.W.2d 569 (Tenn. 1999); Belcher v. Wal-Mart
Stores, Inc., 211 W.Va. 712, 568 S.E.2d 19 (2002).
25 Eckman v. Cooper Tire & Rubber Co., 893 So.2d 1049 (Miss.
2005); Mark v. Seattle Times, 96 Wash.2d 473, 635 P.2d 1081 (1981).
26 Nazeri v. Missouri Valley Coll., 860 S.W.2d 303 (Mo. 1993).
Traditionally, slander claims required proof of pecuniary damages while
libel cases presumed damages. Under a rule developed in some 19th
century American cases, pecuniary damages must be proved in certain
libel cases, but not all. See § 535.
27 E.g., Hopkins v. O’Connor, 282 Conn. 821, 925 A.2d 1030 (2007)
(adding to the traditional common law elements only that the plaintiff
must show reputational injury resulting from the defendant’s publication).
28 Restatement (Second) of Torts § 558 (1977); see § 37.15.
29 Id.
30 In some instances it is difficult to be sure of the weight to be given
to the state-court cases requiring proof of additional elements. Compare
Mathis v. Cannon, 276 Ga. 16, 573 S.E.2d 376 (2002) (stating that fault
amounting at least to negligence would be required to impose liability for
publications on matters of public concern), with Smith v. Stewart, 291 Ga.
App. 86, 660 S.E.2d 822 (2008) (stating without limitation that fault
amount at least to negligence must be shown in all cases, but citing
Mathis as authority). Some of the statements turn out to be inherently
ambiguous, as where a court says damages are required but later in the
opinion that damages may be presumed in certain cases. See, e.g., Dugan
v. Mittal Steel USA Inc., 929 N.E.2d 184 (Ind. 2010).
31 Unchastity is a fourth category once recognized, but perhaps no
longer. See § 37.9.
32 See id. (pecuniary harm required in certain slander cases).
33 § 37.15.
34 Id.
35 § 37.19.
36 See, e.g., United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961
S.W.2d 752 (1998) (prospectively abolishing presumed damages); Thomas
v. Jacksonville Television, Inc., 699 So.2d 800 (Fla. Dist. Ct. App. 1997)
(fault is element of defamation); Simpson v. Mars Inc., 929 P.2d 966 (Nev.
1997) (same); Hupp v. Sasser, 200 W.Va. 791, 490 S.E.2d 880 (1997)
(listing falsity as element).
37 See § 573.
38 See Restatement (Second) of Torts § 577 cmt. a (1977).
39 Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232
S.W.3d 18 (Tenn. 2007). Words spoken in a foreign language to a person
who does not understand that language is not a publication. See
Economopoulos v. A.G. Pollard Co., 218 Mass. 294, 105 N.E. 896 (1914).
Distinguish understanding of the words’ meaning from belief in the truth
of the words. The fact that the only recipient of the words does not believe
them goes only to the issue of damages and does not show non-publication.
Marble v. Chapin, 132 Mass. 225 (Mass. 1882). But cf. Silverman v.
Progressive Broad., Inc., 964 P.2d 61 (N.M. 1998) (there is no publication if
the recipient knows the statement is false, perhaps treating recipient’s
lack of belief in the statement in the same way).
40 Dible v. Haight Ashbury Free Clinics, 170 Cal.App.4th 843, 88
Cal.Rptr.3d 464, 471 (2009).
41 With mass media publications publication is easily inferred, but it
might be rebuttably inferred from circumstantial evidence in other cases
as well, as where an institution exhibits defamatory matter in a public
display. LaMon v. City of Westport, 44 Wash.App. 664, 723 P.2d 470
(1986).
42 See Kamelgard v. Macura, 585 F.3d 334, 342 (7th Cir. 2009);
Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736 (1966);
Restatement (Second) of Torts § 577 cmt. b (1977); but see the paragraph,
“Traditional Self-Publication,” below.
43 Missner v. Clifford, 393 Ill.App.3d 751, 914 N.E.2d 540 (2009).
2011 & Supp.).
45 Delval v. PPG Indus., Inc., 590 N.E.2d 1078, 1081 (Ind. Ct. App.
1992).
46 See McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990)
(affirming a judgment for the plaintiff, victim of neighbor talk that he had
AIDS).
47 E.g., Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994) (was he paid
off in cash or cocaine?); Lara v. Thomas, 512 N.W.2d 777 (Iowa 1994) (does
she have a drug problem?).
48 Kiesau v. Bantz, 686 N.W.2d 164 (Iowa 2004) (photo of plaintiff, a
sheriff’s officer, altered to make it appear that she was exposing her
breasts, was actionable).
49 E.g., Muzikowski v. Paramount Pictures Corp., 322 F.3d 918 (7th
Cir. 2003) (error to dismiss claim).
50 Lott v. Levitt, 469 F.Supp. 2d 575 (N.D. Ill. 2007) (email to third
person actionable).
51 Hellar v. Bianco, 111 Cal.App.2d 424, 244 P.2d 757, 28 A.L.R.2d
1451 (1952) (actionable if owner maintained the writing, though he did not
originate it).
52 Clampitt v. American Univ., 957 A.2d 23, 39 (D.C. 2008).
53 Karage v. First Advantage Corp., 2010 WL 1062601 (N.D.Tex.
2010) (unreported) (“A publication as a whole may be defamatory if it
creates a false impression by omitting material facts”); Mohr v. Grant, 153
Wash.2d 812, 108 P.3d 768, 776 (2005) (“In a defamation by omission case,
the plaintiff must show with respect to the element of falsity that the
communication left a false impression that would be contradicted by the
inclusion of omitted facts”).
54 See Mbarika v. Board of Supervisors of La. State Univ., 992 So.2d
551, 563 (La. Ct. App. 2008) (“allegations that Dr. Schneider defamed Dr.
Mbarika by failing to make a statement about some of his
accomplishments cannot support a claim of defamation”). Cf. Trail v. Boys
& Girls Clubs of Nw. Ind., 845 N.E.2d 130 (Ind. 2006).
55 Haley v. Casa Del Rey Homeowners Ass’n, 153 Cal. App. 4th 863,
63 Cal. Rptr. 3d 514 (2007) (defendant made defamatory accusations at
the plaintiff’s front door, but did not know or have reason to believe that
anyone else was in the house who could hear them; this was neither
intentional nor negligent publication); Restatement (Second) of Torts §
577(1) (1977).
56 Hellar v. Bianco, 111 Cal.App.2d 424, 244 P.2d 757, 28 A.L.R.2d
1451 (1952) (remarks about the plaintiff’s sexual activity, along with her
home phone number, written on the restroom wall of a bar; liability for
failure to remove promptly after learning the content); Restatement
(Second) of Torts § 577(2) (1979); cf. Tacket v. General Motors Corp., 836
F.2d 1042 (7th Cir. 1987) (liability based on theory that defendant
implicitly adopted the defamatory statement; adoption could not be found
without a significant time in which to remove the defamatory material).
57 See Restatement (Second) of Torts § 577 cmt. k and Illus. 4 to 6
(1977); see also id. cmt. l (mistaken identity of recipient).
58 Barnette v. Wilson, 706 So.2d 1164 (Ala. 1997); Wright v.
Bachmurski, 29 Kan. App. 2d 595, 29 P.3d 979 (2001); Trentecosta v. Beck,
703 So.2d 552 (La. 1997); Murphy v. Boston Herald, Inc., 449 Mass. 42,
865 N.E.2d 746 (2007); Restatement (Second) of Torts § 576 (1977) (also
recognizing liability where repeater was privileged to repeat).
59 If the repeater’s communication of the defamatory material is
made only to the plaintiff herself, that is not a publication and does not
start the statute of limitations running anew. Oparaugo v. Watts, 884 A.2d
63 (D.C. 2005).
60 Longbehn v. Schoenrock, 727 N.W.2d 153 (Minn. Ct. App. 2007).
61 The topic is developed at greater length in 3 Dobbs, Hayden &
Bublick, The Law of Torts § 521 (2d. ed. 2011 & Supp.).
62 Triangle Publ’ns, Inc. v. Chumley, 253 Ga. 179, 317 S.E.2d 534
(1984); Pettengill v. Booth Newspapers, Inc., 88 Mich. App. 587, 278
N.W.2d 682 (1979).
63 The question remains whether the neutral distributor such as a
library is liable if the distributor knows of the defamation. An English case
decided in 1900 held that such liability was appropriate. Vizetelly v.
Mudie’s Select Library, Ltd., [1900] 2 Q.B. 170, 69 L.J.Q.B. 645 (C.A.).
Contemporary American ideas about liability for speech seem to be quite
different. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 522 (2d. ed.
2011 & Supp.).
64 E.g., Cal. Civ. Code § 48.5; N.Y. Civ. Rights Law § 75. Before the
statutes, common law decisions were divided on the point.
65 See § 37.11. “No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information
provided by another information content provider.” 47 U.S.C.A. § 230(c)(1).
66 See Jones v. Dirty World Entm’t Recordings, LLC, 755 F.3d 398
(6th Cir. 2014); Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir.), cert.
denied, 135 S.Ct. 680, 190 L.Ed.2d 391 (2014).
67 Lane v. Schilling, 130 Or. 119, 279 P. 267 (1929).
68 Restatement (Second) of Torts § 577 cmt. m (1977). Accord: Austin
v. Inet Techs., Inc., 118 S.W.3d 491 (Tex. App. 2003).
69 Lewis v. Equitable Life Assurance Soc’y of the U.S., 389 N.W.2d
876, 62 A.L.R.4th 581 (Minn. 1986) (a leading case); David P. Chapus,
Annotation, Publication of Allegedly Defamatory Matter by Plaintiff (“Self-
publication”) as Sufficient to Support Defamation Action, 62 A.L.R.4th 616
(1989). The Lewis case, mentioned in this note, has been largely
superseded by Minn. Stat. Ann. § 181.933.
70 Gonsalves v. Nissan Motor Corp. in Haw., Ltd., 100 Haw. 149, 58
P.3d 1196 (2002); White v. Blue Cross & Blue Shield of Mass., Inc., 442
Mass. 64, 809 N.E.2d 1034 (2004); Sullivan v. Baptist Mem’l Hosp., 995
S.W.2d 569 (Tenn. 1999); Bettinger v. Field Container Co., 221 Wis.2d 221,
584 N.W.2d 233 (Ct. App. 1998).
71 All these grounds are reviewed and accepted in Cweklinsky v.
Mobile Chemical Co., 267 Conn. 2109, 837 A.2d 759 (2004).
72 For greater detail, see 3 Dobbs, Hayden & Bublick, The Law of
Torts § 523 (2d. ed. 2011 & Supp.).
73 Frinzi v. Hanson, 30 Wis.2d 271, 140 N.W.2d 259 (1966); see Kirch
v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) (noting that
injury without defamation of the plaintiff would not be actionable as
defamation).
74 Parmiter v. Coupland, 151 Eng. Rep. 340 (Exch. Pleas 1840).
75 E.g., Thomas v. Jacksonville Television, Inc., 699 So.2d 800 (Fla.
Dist. Ct. App. 1997) (distrust); Brock v. Thompson, 948 P.2d 279 (Okla.
1997) (obloquy). All the terms refer to the same general idea. The plaintiff
must prove actual injury to reputation before being awarded damages.
Smith v. Durden, 276 P.3d 943 (N.M. 2012).
76 Katapodis v. Brooklyn Spectator, 287 N.Y. 17, 38 N.E.2d 112
(1941).
77 Restatement (Second) of Torts § 559 & cmt. e (1977), based on
Peck v. Tribune Co., 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960 (1909).
78 See, e.g., Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008);
Tuite v. Corbitt, 224 Ill. 2d 490, 866 N.E.2d 114, 310 Ill. Dec. 303 (2006);
Brown v. Gatti, 341 Or. 452, 145 P.3d 130 (2006). Courts may use the
Restatement’s test alone or use it as the primary definition followed by
references to the older language. E.g., Hupp v. Sasser, 200 W.Va. 791, 490
S.E.2d 880 (1997).
79 See Lyrissa Barnett Lidsky, Defamation, Reputation, and the
Myth of Community, 71 Wash. L. Rev. 1, 18 (1996); 3 Dobbs, Hayden &
Bublick, The Law of Torts § 574 (2d. ed. 2011 & Supp.)(admissibility of
evidence that people believed or reacted negatively establishes harm).
80 E.g., Frinzi v. Hanson, 30 Wis.2d 271, 140 N.W.2d 259 (1966).
81 In Hatfill v. New York Times Co., 416 F.3d 320 (4th Cir. 2005), the
defendant published statements suggesting that the FBI should
investigate Hatfill more vigorously in connection with anthrax mailed to
various people. In a lengthy analysis, the court concluded that reasonable
people could conclude from alleged misstatements of fact that Hatfill “was
responsible for the anthrax mailings in 2001.” The plaintiff in Hatfill,
however, ultimately lost on a different ground, for failure to prove knowing
or reckless falsehood. Hatfill v. New York Times Co., 532 F.3d 312 (4th
Cir. 2008).
82 See Saunders v. Bd. of Dirs., WHYY-TV, 382 A.2d 257 (Del. Super.
1978) (to identify plaintiff as an FBI informer is not defamatory even
though the plaintiff was a prison inmate at the time).
83 See Foster v. Churchill, 87 N.Y.2d 744, 665 N.E.2d 153, 642
N.Y.S.2d 583 (1996).
84 Herrmann v. Newark Morning Ledger Co., 49 N.J.Super. 551, 140
A.2d 529 (1958).
85 Burns v. McGraw Hill Broad. Co., Inc., 659 P.2d 1351 (Colo. 1983);
Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736 (1966).
Shay v. Walters, 702 F.3d 76 (1st Cir. 2012), affirmed dismissal of
plaintiff’s complaint based on the conclusion that only a “tiny group of
people might recognize the plaintiff” as the person referenced in the book
under a different name. The plaintiff argued that a “more expansive
segment of the population” know her identity following the filing of her
lawsuit, but the court noted, “there is a rub: the filing of the suit was the
plaintiff’s doing, and, in all events, the republished statements were not
made by the defendant.”
86 See Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th Cir.
1997); In re Peck, 295 B.R. 353 (B.A.P. 9th Cir. 2003); Marble v. Chapin,
132 Mass. 225 (1882); cf. Bell v. National Republican Cong. Comm., 187
F.Supp.2d 605 (S.D. W. Va. 2002) (presuming harm even if no recipient
shares plaintiff’s interpretation of defendant’s statement); but cf.
Silverman v. Progressive Broad., Inc., 964 P.2d 61 (N.M. 1998)
(publication to one who knows statement is untrue is no publication at all,
perhaps treating recipient’s belief in truth as the same thing).
87 On the slander categories, see § 37.9.
88 E.g., Hatfill v. New York Times Co., 416 F.3d 320 (4th Cir. 2005)
(newspaper column allegedly erroneously reciting evidence pointing to
plaintiff as a primary suspect in sending deadly anthrax by mail).
89 Saunders v. VanPelt, 497 A.2d 1121 (Me. 1985) (that psychologist
not competent to work with children is defamatory).
90 Slaughter v. Friedman, 32 Cal.3d 149, 649 P.2d 886, 185 Cal.Rptr.
244 (1982).
91 Uebelacker v. Paula Allen Holdings, Inc., 464 F.Supp. 2d 791
(W.D. Wis. 2006).
92 E.g., Alaska State Bank v. Fairco., 674 P.2d 288 (Alaska 1983);
Student Loan Fund of Idaho, Inc. v. Duerner, 951 P.2d 1272 (Idaho 1998).
The Fair Credit Reporting Act imposes some special duties on credit
reporting agencies and also preempts some defamation claims. See 15
U.S.C.A. §§ 1681h & 1681t. Cushman v. Trans Union Corp., 920 F.Supp.
80 (E.D. Pa. 1996); 3 Dobbs, Hayden & Bublick, The Law of Torts § 536
(2d. ed. 2011 & Supp.).
93 E.g., Paxton v. Woodward, 31 Mont. 195, 78 P. 215 (1904). Most
“liar” accusations may imply crime or unfitness for a vocation and hence
may be actionable on one of those grounds, depending on the facts. See
Cook v. Winfrey, 141 F.3d 322 (7th Cir. 1998); Edwards v. National
Audubon Soc’y, Inc., 556 F.2d 113 (2d Cir. 1977).
94 See Ogle v. Hocker, 279 Fed. Appx. 391(6th Cir. 2008)
(homosexual desires attributed to a minister of the Church of God); Nazeri
v. Missouri Valley Coll., 860 S.W.2d 303, 312 (Mo. 1993) (“[H]omosexuality
is still viewed with disfavor, if not outright contempt, by a sizeable
proportion of our population…. [A] false allegation of homosexuality is
defamatory in Missouri”); Rejent v. Liberation Publ’ns, Inc., 197 A.D.2d
240, 611 N.Y.S.2d 866 (1994). Contra, as to imputations of homosexuality,
Albright v. Morton, 321 F.Supp.2d 130 (D. Mass. 2004); Hayes v. Smith,
832 P.2d 1022, 1025 (Colo. Ct. App. 1992) (“A court should not classify
homosexuals with those miscreants who have engaged in actions that
deserve the reprobation and scorn”); Yonaty v. Mincolla, 97 A.D.3d 141,
945 N.Y.S.2d 774, 40 Media L. Rep. (BNA) 2014 (2012), leave to appeal
denied, 20 N.Y.3d 855, 959 N.Y.S.2d 126, 982 N.E.2d 1260 (2013)
(statements that plaintiff was gay or bisexual were not slanderous per se,
“in light of the tremendous evolution in social attitudes regarding
homosexuality”).
95 Wilder v. Johnson Publ’g Co., Inc., 551 F.Supp. 622 (E.D. Va.
1982); cf. State Press Co. v. Willett, 219 Ark. 850, 245 S.W.2d 403 (1952)
(implication that African American minister vilified African Americans to
please whites); but cf. Moore v. P.W. Publ’g Co., 3 Ohio St.2d 183, 209
N.E.2d 412 (1965) (statement that plaintiff, a an African American, was an
“Uncle Tom” was not defamatory per se).
96 Tucker v. Fischbein, 237 F.3d 275 (3d Cir. 2001); Tucker v.
Philadelphia Daily News, 577 Pa. 598, 848 A.2d 113 (2004).
97 See MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 674
A.2d 1050 (1996) (“the David Duke of Chester County”); Gregory G. Sarno,
Imputation of Allegedly Objectionable Political or Social Beliefs or
Principles as Defamation, 62 A.L.R.4th 314 (1989).
98 Murphy v. Boston Herald, Inc., 449 Mass. 42, 865 N.E.2d 746
(2007) (judge reported to have said of rape victim words to the effect that
she was 14, she got raped, tell her to get over it; report was defamatory).
99 Grant v. Reader’s Digest Ass’n, Inc., 151 F.2d 733 (2d Cir. 1945)
(asserting that plaintiff was a lobbyist for the communist party); see
Gregory G. Sarno, Imputation of Allegedly Objectionable Political or Social
Beliefs or Principles as Defamation, 62 A.L.R.4th 314 (1989).
100 E.g., Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (“In
daily life ‘racist’; is hurled about so indiscriminately that it is no more
than a verbal slap in the face…. It is not actionable unless it implies the
existence of undisclosed, defamatory facts….”).
101 E.g., Smith v. Huntsville Times Co., Inc., 888 So.2d 492 (Ala.
2004) (knowing or reckless falsehood required, not shown).
102 Puchalski v. Sch. Dist. Of Springfield, 161 F.Supp.2d 395, 408
(E.D. Pa. 2001) (“Mr. McGovern may have articulated the specific offensive
statement attributed to Mr. Puchalski, taking it beyond the realm of mere
opinion or general characterization”); Tech Plus, Inc. v. Ansel, 59 Mass.
App. Ct. 12, 793 N.E.2d 1256 (2003) (defendant allegedly told third
persons that plaintiff persecuted him because of his Jewish heritage,
alleges defamatory publication); Schermerhorn v. Rosenberg, 73 A.D.2d
276, 426 N.Y.S.2d 274 (1980) (newspaper headline that plaintiff said
public board could do without blacks as directors was defamatory).
103 See Schermerhorn v. Rosenberg, 73 A.D.2d 276, 284, 426 N.Y.S.2d
274, 282 (1980).
104 E.g., Powers v. Gastineau, 568 N.E.2d 1020 (Ind. Ct. App. 1991);
Annotation, Libel and Slander: Actionability of Imputing to Private Person
Mental Disorder or Incapacity, or Impairment of Mental Faculties, 23
A.L.R.3d 652 (1969).
105 Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736
(1966) (defendant’s concession).
106 See McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990)
(assertion that plaintiff had AIDS).
107 Bowen v. Independent Publ’g Co., 230 S.C. 509, 96 S.E.2d 564
(1957). But see Lyrissa Barnett Lidsky, Defamation, Reputation, and the
Myth of Community, 71 Wash. L. Rev. 1, 30–31 (1996) (asserting that after
1950 such claims began to disappear but also that modern cases tend to
assume that the allegation is not defamatory; apparently finding no actual
decisions to that effect).
108 Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 T.L.R.
581, 99 A.L.R. 864 (C.A. 1934).
109 See Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99
L.Ed.2d 41 (1988); but cf. Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo.
2003) (fictional comic book character deliberately given plaintiff-celebrity’s
name; this was a ploy to sell comic books and violated the celebrity’s right
of publicity).
110 Finck v. City of Tea, 443 N.W.2d 632 (S.D. 1989) (statement that
police chief was a dumb son of a bitch not actionable); see 3 Dobbs, Hayden
& Bublick, The Law of Torts § 572 (2d. ed. 2011 & Supp.).
111 “Racist” of a white professor, “sexist” of an employer, “Uncle Tom”
of an African American are among the possibilities for serious harm, but
unless the accusation is made specific, it is likely to be dismissed as name-
calling. See Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988).
112 Cox v. Hatch, 761 P.2d 556 (Utah 1988).
113 See Frinzi v. Hanson, 30 Wis.2d 271, 140 N.W.2d 259 (1966).
114 Tatur v. Solsrud, 167 Wis.2d 266, 481 N.W.2d 657 (1992). But cf.
Wilder v. Johnson Publ’g Co., Inc., 551 F.Supp. 622 (E.D. Va. 1982)
(defamatory to assert that African-American had swung vote against black
leader).
115 Lenz Hardware, Inc. v. Wilson, 94 N.Y.2d 913, 729 N.E.2d 338,
707 N.Y.S.2d 619 (2000) (the defendant’s advertisement directly compared
defendant’s prices with plaintiff’s, and ended with the statement that “We
Speak English, Plumbing, Farming and Dabble in Pig Latin”; the court
concluded that the phrase is not reasonably susceptible of a defamatory
connotation).
116 Connelly v. McKay, 176 Misc. 685, 28 N.Y.S.2d 327 (1941).
117 Discussed in § 37.5.
118 E.g., Clampitt v. American Univ., 957 A.2d 23, 39 (D.C. 2008);
McKee v. Laurion, 825 N.W.2d 725 (Minn. 2013); Restatement (Second) of
Torts § 614 (1965).
119 Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823 (Iowa 2007).
120 See Seropian v. Forman, 652 So.2d 490, 498 (Fla. Dist. Ct. App.
1995) (“If influence peddling conveyed the obloquy that plaintiff suggests,
that fact should be readily understood by the ordinary jury without a
political scientist swearing that it does”); contra, Weller v. American
Broad. Cos., Inc., 232 Cal. App. 3d 991, 283 Cal.Rptr. 644 (1991)
(permitting expert testimony).
121 Restatement (Second) of Torts § 563 (1977).
122 See White v. Fraternal Order of Police, 909 F.2d 512, 521 (D.C.
Cir. 1990) (one of the publications “provided a clear signal from which a
reader could conclude, rightly or wrongly, that the defamatory inference
was intended or endorsed”).
123 See Wildstein v. New York Post Corp., 40 Misc.2d 586, 243
N.Y.S.2d 386 (1963) (to say the police questioned plaintiff as one of the
women “associated” with a murdered man may imply meretricious
relationship because the word associated was placed in quotation marks).
124 Herrmann v. Newark Morning Ledger Co., 48 N.J.Super. 420, 440,
138 A.2d 61, 72 (1958).
125 See Bryson v. News Am. Publ’ns, Inc., 174 Ill.2d 77, 96, 672
N.E.2d 1207, 1218, 220 Ill.Dec. 195, 206 (1996) (discussing shifted
meanings of slut and fag).
126 See, e.g., New Times, Inc. v. Isaacks, 146 S.W.3d 144, 155 (Tex.
2004).
127 Ramunno v. Cawley, 705 A.2d 1029 (Del. 1998); Cox Enters., Inc.
v. Nix, 274 Ga. 801, 560 S.E.2d 650 (2002). Illinois law is a partial
exception, requiring courts to place an innocent construction of the
publication if possible, unless the plaintiff proves pecuniary loss. See
Bryson v. News Am. Publ’ns, Inc., 174 Ill.2d 77, 672 N.E.2d 1207, 220
Ill.Dec. 195 (1996).
128 As to true statements carrying defamatory implications, see § 37.8.
129 See, e.g., Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008).
130 Quartana v. Utterback, 789 F.2d 1297 (8th Cir. 1986).
131 McCullough v. Visiting Nurse Serv. of S. Me., Inc., 691 A.2d 1201
(Me. 1997).
132 Karage v. First Advantage Corp., 2010 WL 1062601 (N.D.Tex.
2010) (unreported) (“A publication as a whole may be defamatory if it
creates a false impression by omitting material facts”); Clawson v. St.
Louis Post-Dispatch, LLC, 906 A.2d 308 (D.C. 2006) (“informer” and “FBI
informer” not defamatory read in light of entire story).
133 Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (2000) (“a
publication can convey a false and defamatory meaning by omitting or
juxtaposing facts, even though all the story’s individual statements
considered in isolation were literally true or non-defamatory”).
134 Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993).
135 E.g., Morse v. Ripken, 707 So.2d 921(Fla. App. 1998); see § 572.
136 E.g., Blomberg v. Cox Enters., Inc., 228 Ga.App. 178, 491 S.E.2d
430 (1997); but cf. Burgess v. Reformer Publ’g Corp., 146 Vt. 612, 618, 508
A.2d 1359, 1362 (1986) (“If the headline is a fair index of an accurate
article, it is not actionable. If it is not a fair index then the headline must
be examined independently to determine whether it is actionable under
general principles of libel.”).
137 Kaelin v. Globe Commc’ns Corp., 162 F.3d 1036 (9th Cir. 1998)
(jury could find that headline, 17 pages removed from text of the story and
implying plaintiff was suspected of murdering Nicole Brown Simpson, was
libelous because text so far removed would not clean up the headline);
Little Rock Newspapers, Inc. v. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914
(1997) (wrong photo); Schermerhorn v. Rosenberg, 73 A.D.2d 276, 426
N.Y.S.2d 274 (1980) (headline); Sprouse v. Clay Commc’ns, Inc., 211
S.E.2d 674 (W.Va. 1975) (where the publisher systematically, repeatedly,
and intentionally printed misleading political headlines).
138 See Braun v. Armour & Co., 254 N.Y. 514, 173 N.E. 845 (1930)
(cause of action stated).
139 Sydney v. MacFadden Newspaper Publ’g Corp., 242 N.Y. 208, 151
N.E. 209 (1926).
140E.g., Ramunno v. Cawley, 705 A.2d 1029 (Del. 1998) (long-lasting
community dispute).
141 See § 37.10.
142 See MacElree v. Philadelphia Newspapers, Inc. 544 Pa. 117, 126,
674 A.2d 1050, 1055 (1996) (“the statement could be construed to mean
that appellant was acting in a racist manner”).
144 MacDonald v. Riggs, 166 P.3d 12, 15 (Alaska 2007) (“the recipient
of the defamatory communication [must] understand it as intended to
refer to the plaintiff”); Keohane v. Stewart, 882 P.2d 1293, 1300 (Colo.
1994); Gonzalez v. Sessom, 137 P.3d 1245, 1248 (Okla. Civ. App. 2006);
Gazette, Inc. v. Harris, 229 Va. 1, 37, 325 S.E.2d 713, 738 (1985).
145 Thus a court may simply say that the test is whether a character
in fiction “could reasonably understood as a portrayal of plaintiff.”
Middlebrooks v. Curtis Publ’g Co., 413 F.2d 141, 142 (4th Cir. 1969). This
brief statement does not address the need to find additionally that a
recipient would correctly or reasonably believe that the author intended
such an understanding, but does not rule out such a requirement.
146 See, e.g., Houseman v. Publicaciones Paso del Norte, S.A. DE C.V.,
242 S.W.3d 518 (Tex. App. 2007).
147 SDV/ACCI, Inc. v. AT & T Corp., 522 F.3d 955, 960 (9th Cir. 2008).
148 3 Dobbs, Hayden & Bublick, The Law of Torts § 527 (2d. ed. 2011
& Supp.).
149 Id. § 529.
150 See Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006)
(“A false disparaging statement about IBM, for example, would not, we
think, ordinarily be a defamatory statement ‘of and concerning’ all of
IBM’s suppliers, employees and dealers, however much they may be
injured as a result”); Johnson v. Southwestern Newspapers Corp., 855
S.W.2d 182 (Tex. App. 1993). The rule that defamation of the dead does
not ordinarily defame the living, 3 Dobbs, Hayden & Bublick, The Law of
Torts § 532 (2d. ed. 2011 & Supp.), is a specific instance of the same
principle.
151 New York Times v. Sullivan, 376 U. S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964).
152 Arcand v. Evening Call Publ’g Co., 567 F.2d 1163 (1st Cir. 1977).
153 Kirch v. Liberty Media Corp., 449 F.3d 388, 399 (2d Cir. 2006). A
few cases may have skirted this rule. In Williams v. Gannett Satellite
Information Network, Inc., 162 Ohio App. 3d 596, 834 N.E.2d 397 (2005),
media published a story that X was arrested for a crime, had been
previously convicted of selling drugs, and was the son of the plaintiff, a
police officer. This was held sufficient to show defamation of the officer
plaintiff because it would tend to injured him in his occupation, but
perhaps the “of and concerning” issue was not clearly presented.
154 SDV/ACCI, Inc. v. AT & T Corp., 522 F.3d 955, 960 (9th Cir. 2008)
(reviewing cases).
155 See Caudle v. Thomason, 942 F.Supp. 635, 638 (D.D.C. 1996).
Judge Sack reviewed a number of cases in Kirch v. Liberty Media Corp.,
449 F.3d 388 (2d Cir. 2006).
156 See Lorenz Langer, The Rise (And Fall?) of Defamation of
Religions, 35 Yale J. Int’l L. 257 (2010).
157 Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919
(1952). The case was decided at a time when it was thought that
defamation was not entitled to First Amendment protection, so the case
may be outdated.
158 E.g., N.D. Cent. Code § 32–44–03. These statutes may be
vulnerable to constitutional attack.
159 Cf. Brock v. Thompson, 948 P.2d 279 (Okla. 1997) (reflecting on
trial lawyers).
160 See AIDA v. Time Warner Entm’t Co., L.P., 332 Ill. App. 3d 154,
772 N.E.2d 953 (2002) (non-profit organization interested in fair
presentation of Italian-Americans had no standing to sue and no cause of
action against those responsible for a TV series depicting Italian-
Americans negatively); Lega Siciliana Social Club, Inc. v. St. Germaine, 77
Conn. App. 846, 825 A.2d 827 (2003).
& Supp.).
162 Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 27 Cal. Rptr. 3d
863 (2005) (internet postings claiming specific examples of business
incompetence); Joseph v. Scranton Times L.P., 959 A.2d 322 (Pa. Super.
2008) (charges associating corporation with money laundering, drugs and
prostitution); Harwood Pharmacal Co. v. National Broad. Co., 9 N.Y.2d
460, 174 N.E.2d 602, 214 N.Y.S.2d 725 (1961); Waste Mgmt. of Tex., Inc. v.
Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014).
163 See National Ref. Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763
(8th Cir. 1927).
164 Chapter 43.
& Supp.).
166 New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964); accord: Nampa Charter Sch., Inc. v. DeLaPaz, 140
Idaho 23, 89 P.3d 863 (2004) (charter school was public entity and as such
“cannot maintain an action for libel and slander against an individual
when that individual is speaking out on an issue of public concern”).
167 Chicago v. Tribune Co., 307 Ill. 595, 610, 139 N.E. 86, 91, 28
A.L.R. 1368 (1923); see J. A. Bryant, Jr., Right of Governmental Entity to
Maintain Action for Defamation, 45 A.L.R.3d 1315 (1972) (reflecting
general accord that no such action will be entertained).
168 City of Long Beach v. Bozek, 31 Cal.3d 527, 645 P.2d 137, 183
Cal.Rptr. 86 (1982), reiterated after vacation, 33 Cal.3d 727, 661 P.2d
1072, 190 Cal.Rptr. 918 (1983).
169 Gillikin v. Bell, 254 N.C. 244, 118 S.E.2d 609 (1961).
170 Johnson v. KTBS, Inc., 889 So.2d 329 (La. Ct. App. 2004) (no
action for defaming the dead, and children of deceased have no action for
defamation of their parents); Drake v. Park Newspapers of Ne. Okla., Inc.,
683 P.2d 1347 (Okla. 1984); Restatement (Second) of Torts § 560 (1977).
171 See generally 2 Dobbs, Hayden & Bublick, The Law of Torts § 373
(2d. ed. 2011 & Supp.).
172 See, e.g., Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th
Cir. 1997). The results are mixed when the statute does not specify
defamation actions either way. See Francis M. Dougherty, Annotation,
Defamation Action as Surviving Plaintiff’s Death, Under Statute Not
Specifically Covering Action, 42 A.L.R.4th 272 (1986).
173 Innes v. Howell Corp., 76 F.3d 702 (6th Cir. 1995) (upholding
constitutionality of Kentucky statute); Drake v. Park Newspapers of Ne.
Okla., Inc., 683 P.2d 1347 (Okla. 1984).
174 Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975); cf. Thompson
v. Estate of Petroff, 319 N.W.2d 400 (Minn. 1982) (survival statute was
irrational in not permitting survival for intentional torts).
175 E.g., Post Publ’g Co. v. Moloney, 50 Ohio St. 71, 33 N.E. 921
(1893); Bird v. Hudson, 113 N.C. 203, 18 S.E. 209 (1893).
176 Marley v. Providence Journal Co., 86 R.I. 229, 134 A.2d 180 (1957)
(“in an action of libel or slander the plea of ‘truth’ of itself constitutes a
reaffirmation of the libel or slander which, when not substantiated to the
satisfaction of the jury, may be regarded by them as an aggravation of the
wrong showing actual malice and warranting an award of punitive
damages”); Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (“Bunton’s
consistent position at trial that his accusations of corruption were true is a
compelling indication that he himself regarded his statements as factual
and not mere opinion, right up until the jury returned its verdict”); cf.
Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001)
(withdrawn counterclaim that had reasserted the allegedly defamatory
statements could be admitted to “impeach” defendant’s trial court position
that it had never made such statements).
177 Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 691
N.E.2d 925 (1998) (statute allowing truth defense only for nonmalicious
statements unconstitutional where issue in defamation was a matter of
public interest).
178 See Noonan v. Staples, Inc., 556 F.3d 20 (1st Cir. 2009) (where
constitutional issue was not timely raised, federal court applied
Massachusetts statutes that deprived the publisher of the “truth defense”
where the publisher acted with malice in the sense of ill will), discussed in
Recent Case, Noonan v. Staples, Inc., 123 Harv. L. Rev. 784 (2010); Young
v. First United Bank of Bellevue, 246 Neb. 43, 516 N.W.2d 256 (1994).
179 See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106
S.Ct. 1558, 89 L.Ed.2d 783 (1986); § 568.
180 E.g., Cox Enters., Inc. v. Nix, 274 Ga. 801, 560 S.E.2d 650 (2002);
Voyles v. Sandia Mortgage Corp., 196 Ill.2d 288, 751 N.E.2d 1126, 256 Ill.
Dec. 289 (2001); Armistead v. Minor, 815 So.2d 1189 (Miss. 2002);
Simpson v. Mars Inc., 929 P.2d 966 (Nev. 1997) (listing falsity as an
element of the claim); Belcher v. Wal-Mart Stores, Inc., 211 W.Va. 712, 568
S.E.2d 19 (2002) (same). A persistent tendency to speak of the “truth
defense,” as if the burden of proving truth fell upon the defendant, e.g.,
Choksi v. Shah, 8 So.3d 288 (Ala. 2008), probably does not reflect a
rejection of constitutional mandates but only the use of language in its
accustomed form.
181 E.g., G.D. v. Kenny, 205 N.J. 275, 15 A.3d 300, 39 Media L. Rep.
(BNA) 1699 (2011) (saying several times that “truth is a defense,” yet
recognizing that speech involving matters of public interest and concern,
such as the speech involved in the case, requires that the plaintiff prove
that the defamatory statement was published “with knowledge that it was
false or with reckless disregard of its truth or falsity”). Courts sometimes
cite the Restatement for the proposition that truth is a defense, but that is
not what the Restatement says. See Restatement (Second) of Torts § 581A
& cmt. b (1977).
182 Hogan v. Winder, 762 F.3d 1096 (10th Cir. 2014); Armstrong v.
Thompson, 80 A.3d 177 (D.C. 2013); Thomas v. Telegraph Publ’g Co., 155
N.H. 314, 929 A.2d 993 (2007); Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013).
183 See, e.g., Air Wisconsin Airlines Corp. v. Hoeper, 134 S.Ct. 852,
861, 187 L.Ed.2d 744 (2014).
184 See Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 (D.C.
Cir. 1984), vacated, as to applicable standard on summary judgment, 477
U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (Scalia, J.).
185 Thomas v. Telegraph Publ’g Co., 155 N.H. 314, 929 A.2d 993
(2007).
186 See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct.
2419, 115 L.Ed.2d 447 (1991).
187 Harnish v. Herald-Mail Co., 264 Md. 326, 286 A.2d 146, 49
A.L.R.3d 1056 (1972).
188 Russin v. Wesson, 183 Vt. 301, 949 A.2d 1019 (2008).
189 Hamilton v. Lake Charles Am. Press, Inc., 372 So. 2d 239 (La. Ct.
App. 1979).
190 Rouch v. Enquirer & News of Battle Creek, Mich., 440 Mich. 238,
487 N.W.2d 205 (1992).
191 See Fed. R. Evid. 405(a) (subject to exceptions, “Evidence of a
person’s character or a trait of character is not admissible for the purpose
of proving action in conformity therewith on a particular occasion”).
192 Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 300 (2d Cir.
1986) (if the statement published could be read as asserting adultery in
1983, proof of adultery at some other time would not show truth, but
statement here was more general, asserting ongoing marriage and ongoing
adultery, so proof of adultery at one time was sufficient to show the truth).
193 See Fed. R. Evid. 405(a) & (b) (“proof may be made by testimony
as to reputation or by testimony in the form of an opinion…. In cases in
which character or a trait of character of a person is an essential element
of a charge, claim, or defense, proof may also be made of specific instances
of that person’s conduct”).
194 See Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072,
1079 (3d Cir. 1985) (widespread negative publicity before defamation was
published); McBride v. New Braunfels Herald-Zeitung, 894 S.W.2d 6 (Tex.
App. 1994) (if plaintiff’s earlier convictions of theft and burglary were well
known, that would affect damages but would not justify a summary
judgment for the defendant).
195 See Fraser v. Park Newspapers of St. Lawrence Inc., 257 A.D.2d
961, 684 N.Y.S.2d 332 (1999); Shirley v. Freunscht, 303 Or. 234, 735 P.2d
600 (1987); Towle v. St. Albans Publ’g Co., Inc., 122 Vt. 134, 165 A.2d 363
(1960).
196 Schafer v. Time, Inc., 142 F.3d 1361(11th Cir. 1998) (alleged libel
that the plaintiff was a traitor and helped those who caused the bombing
of Pan Am Flight 103; defendant could question plaintiff about “a felony
conviction, a possible violation of his subsequent parole, convictions for
driving under the influence, an arrest for writing a bad check, failure to
file tax returns, failure to pay alimony and child support, and evidence
concerning Schafer’s efforts to change his name and social security
number”).
197 E.g., Dunagan v. Upham, 214 Ark. 66, 214 S.W.2d 786 (1948);
Martin v. Roy, 54 Mass. App. 642, 767 N.E.2d 603 (2002) (evidence of
plaintiff’s alleged anti-Semitism admissible).
198 Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481 (1996).
2011 & Supp.).
200 See e.g., Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 459,
n. 2, 629 S.E.2d 653, 661, n. 2 (2006) (‘A defendant or publisher asserting
truth as a defense must prove that the statement or purported fact is true,
not that the person quoted actually made the statement”); Restatement
(Second) of Torts § 581A cmt. e (1977). Put the other way around, the
repeater is liable for the defamatory statement and does not escape this
liability merely because he has repeated the statement with precision.
E.g., Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186 (3d Cir.
1998).
201 See Lutz v. Watson, 136 A.D.2d 888, 525 N.Y.S.2d 80 (1988);
Meaney v. Loew’s Hotels, Inc., 29 A.D.2d 850, 288 N.Y.S.2d 217 (1968).
Not all questions, even about wrongdoing, carry defamatory implications.
See Schupmann v. Empire Fire & Marine Ins. Co., 689 S.W.2d 101, 53
A.L.R.4th 445 (Mo. Ct. App. 1985) (question whether plaintiff was
pregnant was not implication of unchastity).
202 See, e.g., Magnusson v. New York Times Co., 98 P.3d 1070
(Okla.2004) (in determining fair comment privilege, court noted that the
defendant truthfully reported what witnesses had said); 3 Dobbs, Hayden
& Bublick, The Law of Torts § 549 (2d. ed. 2011 & Supp.).
203 Ratcliff v. Barnes, 750 N.E.2d 433 (Ind. Ct. App. 2001).
& Supp.).
206 See, e.g., Marcil v. Kells, 936 A.2d 208, 212 (R.I. 2007).
207 Too Much Media, LLC v. Hale, 413 N.J.Super. 135, 993 A.2d 845,
865 (App. Div. 2010) (“Defendant’s [internet] postings are written words
published through a ‘mechanical device’ (the computer) akin to the
typewriter. As a general proposition, it may take more aforethought to
type an internet posting than it does to blurt out spoken words. Also,
unlike spoken words that evaporate, Internet postings have permanence,
as the posts can remain on that particular site for an indefinite period and
can easily be copied and forwarded. The name ‘the world wide web’ is an
indication that unlike spoken words, Internet postings have the widest
distribution possible-globally”); Restatement (Second) of Torts § 568
(1977).
208 See Weitz v. Green, 148 Idaho 851, 230 P.3d 743, 754 (2010)
(“Slander is ‘[a] defamatory assertion expressed in a transitory form’ ”);
Spence v. Funk, 396 A.2d 967 (Del. 1978) (“the written word leaves a more
permanent blot on one’s reputation,” also noting capacity of writings for
widespread circulation).
209 Restatement (Second) of Torts § 568A (1977). Statutes, however,
may limit the liability of broadcasters to special or actual damages. E.g.,
N.Y. Civ. Rights Law § 75.
210 See Too Much Media, LLC v. Hale, 413 N.J.Super. 135, 993 A.2d
845 (App. Div. 2010); David J. Loundy, E-law 4: Computer Information
Systems Law and System Operator Liability, 21 Seattle U. L. Rev. 1075
(1998). Operators of interactive systems are protected against liability for
defamation posted by others. 47 U.S.C.A. § 230(c)(1); § 37.11.
211 See Christy v. Stauffer Publ’ns, Inc., 437 S.W.2d 814 (Tex. 1969).
212 See Cohen v. Bowdoin, 288 A.2d 106 (Me. 1972) (oral statements
reduced to minutes of meeting then passed to newspaper); Bell v.
Simmons, 247 N.C. 488, 101 S.E.2d 383 (1958), citing Restatement of
Torts § 577 cmt. f.
213 Restatement (Second) of Torts § 568(2) (1977).
214 MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007); Riddle v.
Golden Isles Broad., LLC, 292 Ga.App. 888, 891, 666 S.E.2d 75, 78 (2008)
(when the words uttered are slander per se, “the law infers an injury to the
reputation without proof of special damages. Such an injury falls within
the category of general damages, ‘those which the law presumes to flow
from any tortious act; they may be recovered without proof of any
amount’ ”).
215 Tranum v. Broadway, 283 S.W.3d 403, 422 (Tex. App. 2008)
(“Because Tranum’s statements were slanderous per se, Broadway was not
required to present independent proof of mental anguish, as the slander
itself gives rise to a presumption of these damages”).
216 See Biondi v. Nassimos, 300 N.J.Super. 148, 153, 692 A.2d 103,
106 (1997).
217 In some settings, constitutional decisions require the plaintiff to
show “actual” (not necessarily pecuniary) harm. See § 3 Dobbs, Hayden &
218 E.g., Pensacola Motor Sales, Inc. v. Daphne Auto., LLC, 155 So.3d
930 (Ala. 2013); Donovan v. Fiumara, 114 N.C.App. 524, 442 S.E.2d 572
(1994); Restatement (Second) of Torts § 571 (1977). States embrace
slightly different verbal formulas. See Cottrell v. National Collegiate
Athletic Ass’n, 975 So.2d 306, 345 (Ala. 2007) (“indictable offense involving
infamy or moral turpitude”); MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska
2007) (“serious crime”).
219 McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990) (AIDS);
Restatement (Second) of Torts § 572 (1977).
220 E.g., Restatement (Second) of Torts § 573 (1977).
221 See, e.g., French v. Jadon, Inc., 911 P.2d 20 (Alaska 1996); City of
Fairbanks v. Rice, 20 P.3d 1097 (Alaska 2000) (allegations of marital
infidelity).
222 Gallo v. Alitalia-Linee Aeree Italiane-Societa per Azioni, 585
F.Supp.2d 520 (S.D.N.Y. 2008) (“Adultery is not a serious crime, and
therefore is not included in that slander per se category. Adultery is a
class B misdemeanor”).
223 See Gosden v. Louis, 116 Ohio App. 3d 195, 687 N.E.2d 481 (1996)
(voyeurism might not be crime of moral turpitude but if in writing the
charge of any crime would be libel and actionable).
224 Speed v. Scott, 787 So.2d 626 (Miss. 2001) (“thief and liar” not
slander per se under the circumstances; dissenters argued that listeners
might not know the reference was so limited).
225 Biondi v. Nassimos, 300 N.J.Super. 148, 692 A.2d 103 (1997); cf.
Restatement (Second) of Torts § 571 cmt. c (1977).
226 See Greene v. Tinker, 332 P.3d 21 (Alaska 2014) (breach of
medical confidentiality); White v. Wilkerson, 328 S.C. 179, 493 S.E.2d 345
(1997) (attorney said to have taken over 90% of a settlement). Statements
suggesting that the plaintiff was disloyal to his employer by taking
kickbacks from those dealing with the employer are easily slander per se.
See Nassa v. Hook-SupeRx, Inc., 790 A.2d 368 (R.I. 2002).
227 Ravnikar v. Bogojavlensky, 438 Mass. 627, 782 N.E.2d 508 (2003).
228 Finck v. City of Tea, 443 N.W.2d 632 (S.D. 1989) (statement that
police chief was a dumb son of a bitch and incompetent was opinion only
and not actionable). An opinion offered by an expert or one who seems to
have special knowledge of the facts, however, may imply unstated facts
and may be accepted as slander per se. See Lawnwood Med. Ctr., Inc. v.
Sadow, 43 So.3d 710 (Fla. Dist. Ct. App. 2010) (hospital senior executive
told new doctor that the plaintiff doctor was not competent to operate on a
dog).
229 Gunsberg v. Roseland Corp., 34 Misc.2d 220, 225 N.Y.S.2d 1020
(Sup. Ct. 1962).
230 Smith v. IMG Worldwide, Inc., 437 F.Supp.2d 297 (E.D. Pa. 2006)
(alleged statements to potential recruit by sports agent that the plaintiff, a
competing sports agent, “played the race card” in negotiating with the
NFL on behalf of players are slander per se because they “are peculiarly
harmful to plaintiff because his ability to represent professional football
players is directly tied to his relationships with the general managers of
NFL clubs”).
231 See Pippen v. NBCUniversal Media, LLC, 734 F.3d 610 (7th Cir.
2013) (assertion of personal bankruptcy did not imply former basketball
star’s lack of competence or integrity to serve as goodwill ambassador for
professional team, basketball analyst, or celebrity product endorser);
Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013) (assertion that physician
was “lacking veracity” did not affect fitness for proper conduct as
physician).
232 Liberman v. Gelstein, 80 N.Y.2d 429, 605 N.E.2d 344, 590
N.Y.S.2d 857 (1992).
233 A general allegation of economic loss is usually insufficient. See
Becker v. Zellner, 292 Ill.App.3d 116, 684 N.E.2d 1378, 226 Ill.Dec. 175
(1997); contra, Johnson v. Bollinger, 86 N.C.App. 1, 356 S.E.2d 378 (1987).
Authorities on special harm in analogous libel per quod and injurious
falsehood cases have sometimes insisted that the plaintiff must prove such
items as the loss of named customers.
234 Actual harm is required by the constitutional decisions to
establish certain defamation claims. See § 37.15.
235 Terwilliger v. Wands, 17 N.Y. 54 (1858); Scott v. Harrison, 215
N.C. 427, 2 S.E.2d 1 (1939); Restatement (Second) of Torts § 575 cmt. b
(1977).
237 Leonardo v. Sley Sys. Garages, Inc., 166 Pa.Super. 633, 74 A.2d
712 (1950).
238 Claims for lost profits and the like arise equally in slander per se,
libel and injurious falsehood cases, which provide many of the authorities
on evidence required. See, e.g., Erick Bowman Remedy Co. v. Jensen
Salsbery Labs., Inc., 17 F.2d 255 (8th Cir. 1926) (injurious falsehood, with
emphasis on the need to show loss of specific customers in some cases);
Schoen v. Washington Post, 246 F.2d 670 (D.C. Cir. 1957) (libel with
claims of lost customers; plaintiff would be required to segregate losses
due to true portion of the publication); Van Gundy v. Wilson, 84 Ga.App.
429, 66 S.E.2d 93 (1951) (slander per se as to eating establishment but not
as to other businesses operated in the same place).
239 Restatement (Second) of Torts § 575 & ill. 4 (1977).
240 Scott v. Harrison, 215 N.C. 427, 2 S.E.2d 1 (1939).
241 See Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149,
755 A.2d 583 (2000) (requiring either proof of actual harm or “actual
malice” when speech is of public concern, even if the plaintiff is not a
public figure; also leaving open the issue of whether the presumption of
damages should be abolished).
242 David A. Anderson, Reputation, Compensation, and Proof, 25 Wm.
& Mary L. Rev. 747 (1984) (requiring actual harm which could sometimes
be inferred from other facts); See also Rodney A. Smolla, Law of
Defamation § 7.33 (updated, available on Westlaw).
243 Arthaud v. Mutual of Omaha Ins. Co., 170 F.3d 860 (8th Cir.
1999); Synygy, Inc. v. Scott-Levin, Inc., 51 F.Supp.2d 570 (E.D.Pa. 1999);
United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998);
Schlegel v. Ottumwa Courier, 585 N.W.2d 217 (Iowa 1998); Zoeller v.
American Fam. Mut. Ins. Co., 17 Kan. App.2d 223, 834 P.2d 391 (1992);
Nazeri v. Missouri Valley Coll., 860 S.W.2d 303 (Mo. 1993); Walker v.
Grand Cent. Sanitation, Inc., 430 Pa. Super. 236, 634 A.2d 237 (1993).
244 Holtzscheiter v. Tomson Newspapers, Inc., 332 S.C. 502, 506
S.E.2d 497 (1998), concluded that all libel is actionable per se, that is
without proof of special damages. It reserved the term libel per quod,
usually contrasted with libel per se, to mean only that extrinsic
circumstances could be introduced to show defamatory meaning.
245 Vanover v. Kansas City Life Ins. Co., 553 N.W.2d 192 (N.D. 1996)
(repudiating earlier authority supporting the per quod rule); Maison de
France v. Mais Oui!, Inc., 126 Wash. App. 34, 108 P.3d 787 (2005); In re
Storms v. Action Wis. Inc., 309 Wis.2d 704, 748, 750 N.W.2d 739, 761
(2008) (“We adhere to and adopt the common-law rule of libel … that all
libels are actionable without alleging or proving special damages”).
247 See § 37.15 (where a private person sues and the issue involved in
the alleged defamation is one of public concern, the plaintiff must prove
some actual harm or else knowing or reckless falsehood).
248 See Wilhoit v. WCSC, Inc., 293 S.C. 34, 358 S.E.2d 397 (1987);
Poulston v. Rock, 251 Va. 254, 467 S.E.2d 479 (1996) (trial judge erred in
reducing award merely because no harm had been shown).
249 Williams v. District Court, 866 P.2d 908 (Colo. 1993)
250 See Baker v. Tremco Inc., 890 N.E.2d 73 (Ind. Ct. App. 2008),
vacated by Baker v. Tremco Inc., 917 N.E.2d 650 (Ind. 2009).
251 See Laurence H. Eldredge, The Law of Defamation § 24 (1978).
Prosser and Eldredge heavily debated the question of “how many”
authorities support the rule. See William L. Prosser, Libel Per Quod, 46
Va. L. Rev. 839 (1960); Laurence H. Eldredge, The Spruious Rule of Libel
Per Quod, 79 Harv. L. Rev. 733 (1966); William L. Prosser, More Libel Per
Quod, 79 Harv. L. Rev. 1629 (1966).
252 See the paragraph, Relevance of the slander categories in libel per
se/per quod cases, below.
253 See Ilitzky v. Goodman, 57 Ariz. 216, 112 P.2d 860 (1941); Bryson
v. News Am. Publ’ns, Inc., 174 Ill.2d 77, 103, 672 N.E.2d 1207, 1121, 220
Ill.Dec. 195, 209 (1996) (“a per quod claim is appropriate where the
defamatory character of the statement is not apparent on its face, and
resort to extrinsic circumstances is necessary to demonstrate its injurious
meaning”).
254 E.g., Bryson v. News Am. Publ’ns, Inc., 174 Ill. 2d 77, 672 N.E.2d
1207, 220 Ill. Dec. 195 (1996); DaimlerChrysler Corp. v. Kirkhart, 148
N.C.App. 572, 561 S.E.2d 276 (2002); Robert D. Sack, Sack on Defamation:
Libel, Slander and Related Problems § 2.8 (2008) (available on Westlaw).
255 See Smith v. Stewart, 291 Ga.App. 86, 96, 660 S.E.2d 822, 831
(2008) (“Libel per se consists of a charge that one is guilty of a crime,
dishonesty[,] or immorality…. Defamatory words which are actionable per
se are those which are recognized as injurious on their face-without the aid
of extrinsic proof…. [I]f the defamatory character of the words does not
appear on their face but only become defamatory by the aid of extrinsic
facts, they are not defamatory per se….” (quoting)). On the surface, the
two tests are antithetical, but a court could require that the plaintiff meet
both tests in order to show libel per se, or it could hold that meeting either
would suffice.
256 See Mercer v. Cosley, 110 Conn.App. 283, 294, 955 A.2d 550, 559
(2008) (“To recover on a claim that the libel was actionable per se, a
plaintiff must show that the libel, on its face, either charged some
impropriety in the plaintiff’s business or profession or that it charged a
crime of moral turpitude”); Kennedy v. Sheriff of E. Baton Rouge, 920
So.2d 217 (La. 2006). See also Holleman v. Aiken, 668 S.E.2d 579 (N.C. Ct.
App. 2008).
257 See Kennedy v. Sheriff of E. Baton Rouge, 920 So.2d 217 (La.
2006).
258 As in Reed v. Melnick, 81 N.M. 608, 471 P.2d 178, 49 A.L.R.3d 156
(1970), overruled on other grounds, Marchiondo v. Brown, 98 N.M. 394,
649 P.2d 462 (1982). A fault requirement may be the point in cases like
DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 561 S.E.2d 276
(2002) (requiring publisher in a per quod case to intend “to defame” or
recipient understand the communication “to be defamatory”).
259 Hinsdale v. Orange County Publ’ns, Inc., 17 N.Y.2d 284, 290, 217
N.E.2d 650, 653, 270 N.Y.S.2d 592 (1966).
2011 & Supp.).
261 E.g., Beuster v. Equifax Info. Servs., 435 F.Supp. 2d 471 (D. Md.
2006) (holding libel action not preempted by federal Fair Credit Reporting
Act); Student Loan Fund of Idaho, Inc. v. Duerner, 951 P.2d 1272 (Idaho
1998); Ruder & Finn, Inc. v. Seaboard Surety Co., 52 N.Y.2d 663, 422
N.E.2d 518 (1981) (“Where a statement impugns the basic integrity or
creditworthiness of a business, an action for defamation lies and injury is
conclusively presumed”).
262 See § 37.10.
263 Fischer v. Unipac Serv. Corp., 519 N.W.2d 793 (Iowa 1994).
264 Sunderlin v. Bradstreet, 1 Sickels 188, 46 N.Y. 188 (1871); Weir v.
Citicorp Nat’l Servs., Inc., 312 S.C. 511, 435 S.E.2d 864 (1993); Calhoun v.
Chase Manhattan Bank, 911 S.W.2d 403 (Tex. App. 1995).
265 The main difference was that the defendant would have the
burden of showing a privileged occasion, but that would ordinarily be easy
enough, and once the privilege was invoked, the burden of showing malice
would fall upon the plaintiff, just as it does in injurious falsehood claims.
266 Currently codified as 15 U.S.C.A. §§ 1681 et seq.
267 The topic of defamatory credit reports is developed more fully in
268 See Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232
S.W.3d 18, 22 (Tenn. 2007).
270 Stecks v. Young, 38 Cal. App. 4th 365, 45 Cal. Rptr. 2d 475 (1995)
(mandatory child abuse reports); Anderson v. Beach, 897 N.E.2d 361, 325
Ill. Dec. 113 (Ct. App. 2008) (duty to report police officers’ rule infractions
to superior officer absolutely privileged); Restatement (Second) of Torts §
592A (1977); see Farmers Educ. & Coop. Union of Am. v. WDAY, Inc., 360
U.S. 525, 79 S.Ct. 1302, 3 L.Ed.2d 1407 (1959).
271 See Cucinotta v. Deloitte & Touche, LLP, 302 P.3d 1099 (Nev.
2013) (absolute privilege for accounting firm’s communications with
corporations audit committee, pursuant to SEC Act); § 37.11 (internet
providers).
272 “SLAPP” stands for “strategic lawsuit against public
participation.” See § 37.14.
274 Prokop v. Cannon, 7 Neb. App. 334, 583 N.W.2d 51 (1998); Titan
Am., LLC v. Riverton Inv. Corp., 264 Va. 292, 569 S.E.2d 57 (2002)
(absolute privilege though case had been settled and some of the
allegations had not been “tested” by judicial action).
275 The absolute privilege does not bar an action for malicious
prosecution. See, e.g., McKinney v. Okoye, 282 Neb. 880, 806 N.W.2d 571
(2011); see Chapter 39.
276 Witzke v. City of Bismarck, 718 N.W.2d 586 (N.D. 2006); see
Cooper v. Parker-Hughey, 894 P.2d 1096 (Okla. 1995) (citing cases from
many states).
277 Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693, 708 (1992); Helena
Chem. Co. v. Uribe, 281 P.3d 237 (N.M. 2012); Francis v. Gallo, 59 A.3d 69
(R.I. 2013).
278 Van Eaton v. Fink, 697 N.E.2d 490 (Ind. Ct. App. 1998). Prokop v.
Cannon, 7 Neb. App. 334, 583 N.W.2d 51 (1998), goes much further in
protecting a comment made by an attorney after the cases had been
dropped.
279 Rubin v. Green, 4 Cal.4th 1187, 847 P.2d 1044, 17 Cal. Rptr. 2d
828 (1993) (interference with contract claim based upon statements to
potential clients); Simpson Strong-Tie Co., Inc. v. Stewart, Estes &
Donnell, 232 S.W.3d 18, 22 (Tenn. 2007) (requiring that the statements be
relevant to a potential lawsuit seriously contemplated in good faith; the
privilege extends to publically published solicitation where more closely
targeted communication is not feasible).
280 Sodergren v. Johns Hopkins Univ. Applied Physics Lab., 138
Md.App. 686, 773 A.2d 592 (2001).
281 E.g., Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d
599 (Ky. 2011) (attorney disciplinary proceeding); Reichardt v. Flynn, 374
Md. 361, 823 A.2d 566 (2003) (teacher disciplinary action); Cottrell v.
Zagami, LLC, 94 A.3d 878 (N.J. 2014) (municipal liquor license hearing).
For greater discussion of the issue see Dobbs, Hayden & Bublick, The Law
of Torts § 539 (2d ed. 2011 & Supp.).
282 Ledvina v. Cerasani, 146 P.3d 70 (Ariz. Ct. App. 2006); Hagberg v.
California Fed. Bank FSB, 32 Cal. 4th 350, 81 P.3d 244, 7 Cal. Rptr. 3d
803 (2004).
283 Medical Informatics Eng’g, Inc. v. Orthopaedics Ne., P.C., 458
F.Supp. 2d 716 (N.D. Ind. 2006) (citing many cases); Green Acres Trust v.
London, 141 Ariz. 609, 688 P.2d 617 (1984). But see Norman v. Borison,
418 Md. 630, 17 A.3d 697, 39 Media L. Rep. (BNA) 1673 (2011) (extending
absolute privilege to statements made by lawyers to newspaper reporter
after the filing of a complaint, holding that the allegedly defamatory
statements made to the newspaper were relevant to the judicial
proceedings).
284 Wagner v. Miskin, 660 N.W.2d 593 (N.D. 2003) (“A privileged
statement, such as one made in a judicial proceeding, is not privileged for
all subsequent publications by virtue of initially being spoken in a
privileged proceeding”).
285 Williams v. Kenney, 379 N.J.Super. 118, 877 A.2d 277, 287 (2005)
(transcript of telephone conversation attached to complaint sent to
newspaper; “extra-judicial distribution of papers filed in court” is not
ordinarily deemed privileged because “[s]uch publications are made
beyond the controls and inhibitions inherent in the judicial process”);
Bochetto v. Gibson, 580 Pa. 245, 860 A.2d 67 (2004); Pratt v. Nelson, 164
P.3d 366, 377 (Utah 2007) (“the Nelsons’ statements made during the
press conference, including the Kingston Complaint, the Prepared
Statement, and other oral statements, lost through excessive publication
any privileged status they may have otherwise enjoyed”). But see Norman
v. Borison, 418 Md. 630, 17 A.3d 697, 39 Media L. Rep. (BNA) 1673 (2011)
(extending absolute privilege to protect lawyers who spoke to newspaper
reporter and gave reporter a copy of a complaint filed in a case, holding
that the allegedly defamatory statements made to the newspaper were
relevant to the judicial proceedings).
286 See Rosenberg v. Helinski, 328 Md. 664, 616 A.2d 866 (1992).
287 Cf. Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555
(1988) (distinguish judicial from administrative capacity of judge; judge
who violates constitutional rights in the course of discharging an employee
does not enjoy absolute, only qualified, protection).
288 Cf. Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986) (lawyer’s
letter attacking opposing counsel; copy to the judge, written and received
during trial was not absolutely privileged as part of the proceeding).
289 See Kocontes v. McQuaid, 279 Neb. 335, 340, 778 N.W.2d 410, 416
(2010) (required relevancy “of the defamatory matter is not a technical
legal relevancy but instead a general frame of reference and relationship
to the subject matter of the action”); Irwin v. Ashurst, 158 Or. 61, 74 P.2d
1127 (1938) (attorney’s closing argument to the jury: plaintiff was not
truthful and “was lower than a rattlesnake because a rattlesnake gives
warning before it strikes”; absolutely privileged if pertinent and jury found
it was).
290 See Rosenberg v. Helinski, 328 Md. 664, 616 A.2d 866 (1992); Paul
T. Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54
Ohio St. L.J. 985 (1993) (detailed examination of rationales). The
rationales behind and purposes of the privilege do not support its
application to a legal malpractice suit by the client against the lawyer
based on statements the lawyer made in connection with a judicial
proceeding. See Buchanan v. Leonard, 428 N.J. Super. 277, 52 A.3d 1064
(App. Div. 2012).
291 The principle seems actually broader: restrictions on liability
imposed in defamation cases, whether through privileges or free speech
rules, are not to be subverted by allowing a recovery for derogatory words
on the theory that some other tort has been committed. See Sullivan v.
Conway, 157 F.3d 1092 (7th Cir. 1998) (“the same privileges are applicable
to the false-light tort as to the defamation tort. Otherwise privilege could
be defeated by relabeling;” not addressing litigation privilege, however);
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P. A. v. United
States Fire Ins. Co., 639 So.2d 606 (Fla. 1994) (absolute privilege for
communications in litigation applied to interference claim); Crain v. The
Unauthorized Practice of Law Comm. of the Supreme Court of Tex., 11
S.W.3d 328 (Tex. App. 1999) (“the judicial privilege is not limited to claims
of libel or slander, and it should be applied to claims arising out of
communications made in the course of judicial proceedings, regardless of
the label placed on the claim,” mentioning tortious interference claims
specifically); Moss v. Parr Waddoups Brown Gee & Loveless, 285 P.3d
1157 (Utah 2012) (litigation privilege protected lawyers from claims of
breach of settlement agreement, abuse of process and invasion of privacy,
where alleged wrong was in drafting and serving civil discovery orders
authorizing entry into the plaintiffs’ homes); contra, Trau-Med of Am., Inc.
v. Allstate Ins. Co., 71 S.W.3d 691(Tenn. 2002).
292 Florida Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470
F.3d 1036 (11th Cir. 2006); Simms v. Seaman, 308 Conn. 523, 69 A.3d 880
(2013).
293 Paul T. Hayden, Reconsidering the Litigator’s Absolute Privilege
to Defame, 54 Ohio St. L.J. 985 (1993) (arguing that the privilege as
applied to lawyers gets in the way of justice and casts doubt on the
integrity of the legal profession, and that a qualified privilege would
suffice).
294 U.S. Const. art I, § 6, cl. 1.
295 E.g., Colo. Rev. Stat. Ann. § 2–2–304; Conn. Const. art. 3, § 15;
Ind. Const. art. 4, § 8; Restatement (Second) of Torts § 590 (1977).
296 Sanchez v. Coxon, 854 P.2d 126 (Ariz. 1993). Iowa applies only a
qualified, rather than absolute, privilege to local council members. On the
other hand, it has been held that the privilege is not destroyed by bad
motive, only by knowing or reckless falsehood. Barreca v. Nickolas, 683
N.W.2d 111 (Iowa 2004).
297 Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d
583 (1972).
298 Id.
299 Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d
411 (1979).
300 DeSantis v. Employees Passaic County Welfare Ass’n, 237
N.J.Super. 550, 568 A.2d 565 (1990) (allegedly defaming public official);
Restatement (Second) of Torts § 590A (1977).
301 See Krueger v. Lewis, 359 Ill. App. 3d 515, 522, 834 N.E.2d 457,
464, 295 Ill. Dec. 876, 883 (2005).
302 As in Kelly v. Daro, 47 Cal.App.2d 418, 118 P.2d 37 (1941).
303 Vultaggio v. Yasko, 215 Wis.2d 326, 572 N.W.2d 450 (1998).
304 Krueger v. Lewis, 359 Ill. App. 3d 515, 834 N.E.2d 457, 295 Ill.
Dec. 876 (2005); Riddle v. Perry, 40 P.3d 1128 (Utah 2002).
305 “Employee” is used inclusively here to mean any person employee
by the public entity in question, including those who may be classed as
“officers,” and those who are elected.
306 28 U.S.C.A. § 2679. See § 351.
307 28 U.S.C.A. § 2680(h).
308 See 28 U.S.C.A. § 2679(b)(2) (the statutory immunity “does not
extend or apply to a civil action against an employee of the Government—
(A) which is brought for a violation of the Constitution of the United
States, or (B) which is brought for a violation of a statute of the United
States under which such action against an individual is otherwise
authorized”).
309 Under the rule in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619
(1971).
310 Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).
311 Aversa v. United States, 99 F.3d 1200 (1st Cir. 1996).
312 District of Columbia v. Jones, 919 A.2d 604 (D.C. 2007).
313 Bauer v. State, 511 N.W.2d 447 (Minn. 1994); Stukuls v. State, 42
N.Y.2d 272, 397 N.Y.S.2d 740, 366 N.E.2d 829 (1977); Jones v. State, 426
S.W.3d 50 (Tenn. 2013).
314 Cf. Liberty Bank of Seattle, Inc. v. Henderson, 75 Wash. App. 546,
878 P.2d 1259 (1994) (refusing to state a rule, but indicating that officers
below the “cabinet rank” are protected).
315 Gibson v. Abbott, 529 So.2d 939 (Ala. 1988); Chamberlain v.
Mathis, 729 P.2d 905 (Ariz. 1986); cf. Aspen Exploration Corp. v. Sheffield,
739 P.2d 150 (Alaska 1987) (governor had only qualified privilege as to
defamation; choice between absolute and qualified privilege depends upon
the facts).
316 See Brown v. Blaine, 833 A.2d 1166 (Pa. Commw. Ct. 2003) (state
and its agencies are immune except as legislature has specifically waived
immunity; it has not waived immunity for libel); Texas Dep’t of Health v.
Rocha, 102 S.W.3d 348 (Tex. App. 2003) (similar).
317 Rudloe v. Karl, 899 So.2d 1161 (Fla. Dist. Ct. App. 2005) (state
university was not immune from liability for negligently publishing
defamatory material; there was no governmental policy-making).
318 Restatement (Second) of Torts § 583 & cmt. c (1977).
319 Chapter 8.
320 Smith v. Holley, 827 S.W.2d 433 (Tex. App. 1992); Woodfield v.
Providence Hosp., 779 A.2d 933 (D.C. 2001) (assuming arguendo that
consent would only be a qualified privilege; but consent protected former
employer even if it gave out information it was contractually obliged to
keep confidential); but cf. McQuirk v. Donnelley, 189 F.3d 793 (9th Cir.
1999) (California statute invalidating releases in advance for intentional
torts held to include defamation, no discussion whether any wrongful
intent was involved). When the plaintiff has not consented to a reference,
former employers are often protected by a conditional or qualified
privilege, destructible if abused by malice or the like. Statutes sometimes
offer specific protection. E.g., Ga. Code § 34–1–4.
321See Horkan, Note, Contracting around the Law of Defamation and
Employment References, 79 Va. L. Rev. 517 (1993).
322 Rosenberg v. American Bowling Cong., 589 F.Supp. 547 (M.D. Fla.
1984).
323 O’Connor v. Diocese of Honolulu, 77 Haw. 383, 885 P.2d 361
(1994).
324 Hiles v. Episcopal Diocese of Mass., 437 Mass. 505, 773 N.E.2d
929 (2002).
325 47 U.S.C.A. § 230(c)(1).
326 “No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another
information content provider.” 47 U.S.C.A. § 230(c)(1). Before the statute,
Cubby, Inc. v. Compuserve, Inc., 776 F.Supp. 135 (S.D. N.Y. 1991) got the
same result. On email, see Lunney v. Prodigy Servs. Co., 701 N.Y.S.2d
684, 723 N.E.2d 539 (1999).
327 Zeran v. America Online, Inc., 129 F.3d 327, 333 (4th Cir. 1997);
Barrett v. Rosenthal, 40 Cal. 4th 33, 146 P.3d 510, 51 Cal. Rptr. 3d 55
(2006).
328 See Zeran v. America Online, Inc., 129 F.3d 327, 333 (4th Cir.
1997).
329 Cf. Too Much Media, LLC v. Hale, 206 N.J. 209, 20 A.3d 364, 30
Media L. Rep. (BNA) 1849 (2011) (without citing the CDA, holding that
the state Shield Law which creates a newsperson’s privilege does not
protect people who post defamatory comments on Internet message
boards).
330 See Barrett v. Rosenthal, 40 Cal. 4th 33, 146 P.3d 510, 51 Cal.
Rptr. 3d 55 (2006) (internet web site available to public is a public forum
protected under anti-SLAPP statute). As to those statutes, see § 553.
331 It has been argued that freedom to defame behind a cloak of
anonymity has great social value because it encourages good as well as
libelous speech. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation
& Discourse in Cyberspace, 49 Duke L.J. 855 (2000).
332 Similar issues can occur in invasion of privacy claims, anonymous
emailers, see Mobilisa, Inc. v. Doe, 217 Ariz. 103, 170 P.3d 712 (2007), and
even in trademark claims, see Salehoo Group, Ltd. v. ABC Co., 722
F.Supp.2d 1210 (W.D. Wash. 2010).
333 See Mobilisa, Inc. v. Doe, 217 Ariz. 103, 170 P.3d 712 (2007);
Krinsky v. Doe 6, 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231, 245–246
(2008); Doe v. Cahill, 884 A.2d 451(Del. 2005); Solers, Inc. v. Doe, 977 A.2d
941 (D.C. 2009); Independent Newspapers, Inc. v. Brodie, 407 Md. 415,
966 A. 2d 432 (2009); Mortgage Specialists, Inc. v. Implode-Explode Heavy
Indus., Inc., 160 N.H. 227, 999 A.2d 184 (2010); Dendrite Int’l, Inc. v. Doe,
342 N.J. Super. 134, 775 A.2d 756 (2001). For greater explication of the
rules, see 3 Dobbs, Hayden & Bublick, The Law of Torts § 543 (2d. ed.
2011 & Supp.).
334 See Barrett v. Rosenthal, 40 Cal. 4th 33, 146 P.3d 510, 51 Cal.
Rptr. 3d 55 (2006) (apparently conceiving its rule protecting “users” to
include users who actively select defamatory material for internet
posting).
335 In Blumenthal v. Drudge, 992 F.Supp. 44 (D. D.C. 1998), AOL
hired Drudge to write gossip and made it available through its online
service. AOL was held immune from liability for its defamatory content
because AOL had not developed the material “itself.” When the service
provider has some input into content based on the computer user’s
interactive input, it may still be protected. See Carafano v.
Metrosplash.com., Inc., 339 F.3d 1119, 1124 (9th Cir. 2003). In Donato v.
Moldow, 374 N.J.Super. 475, 865 A.2d 711 (2005), the interactive
computer service selectively deleted messages and thus affected the
overall content, but again the immunity remained. HY Cite Corp. v.
Badbusinessbureau.Com, LLC, 418 F.Supp. 2d 1142 (D. Ariz. 2005),
rejected a motion to dismiss a claim against a website operator, seemingly
in part because the plaintiff alleged that the operator solicited negative
reports about the plaintiff’s products and business and might thus be
shown to be responsible for the development of the defamatory
information. And in Murphy v. Boston Herald, Inc., 449 Mass. 42, 865
N.E.2d 746 (2007), the defendant newspaper ran a blog or chat room and
was held liable for libel in comments posted by readers there on the
ground that the defendant had published the original libel in print and
would be responsible for repetition of others under the common law
repeaters’ rule.
336 Barrett v. Rosenthal, 40 Cal. 4th 33, 63,146 P.3d 510, 528, 51 Cal.
Rptr. 3d 55, 77 (2006).
337 Smith v. Des Moines Pub. Sch., 259 F.3d 942 (8th Cir. 2001);
Cortez v. Jo-Ann Stores, Inc., 827 N.E.2d 1223 (Ind. Ct. App. 2005); Boone
v. Sunbelt Newspapers, Inc., 347 S.C. 571, 556 S.E.2d 732 (2001). West
Virginia says that one element of the plaintiff’s case is to prove the
absence of a privilege. Belcher v. Wal-Mart Stores, Inc., 211 W.Va. 712,
568 S.E.2d 19 (2002). The logic of that proposition is to put the burden on
the plaintiff to negate the privilege rather than upon the defendant to
establish it.
338 § 37.12.
339 See § 37.15 (constitutional limitations on certain libel actions).
340 Barreca v. Nickolas, 683 N.W.2d 111(Iowa 2004).
341 E.g., Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 153,
334 S.E.2d 846, 853 (1985), overruled by Cashion v. Smith, 749 S.E.2d 526
(Va. 2013). This form of expression originated in Toogood v. Spyring, 1
C.M. & R. 181 (1834). See Patrick Milmo & W.V.H. Rogers, Gatley in Libel
and Slander § 14.5 (9th ed. 1998).
342 A legal duty to publish, of course provides a privilege and in fact
an absolute one. See Restatement (Second) of Torts § 592A (1977).
343 Powers v. Carvalho., 117 R.I. 519, 531, 368 A.2d 1242, 1249
(1977).
344 Skaskiw v. Vermont Agency of Agric., 112 A.3d 1277 (Vt. 2014);
Restatement (Second) of Torts § 598 (1977). The privilege may be codified
in some cases, as with child abuse reports. See F.A. v. W.J. F., 280
N.J.Super. 570, 656 A.2d 43 (1995).
345 E.g., Tidwell v. Winn-Dixie, Inc., 502 So.2d 747 (Ala. 1987) (report
to police); Flanagan v. McLane, 87 Conn. 220, 87 A. 727 (1913); Kennedy v.
Sheriff of East Baton Rouge, 920 So.2d 217 (La. 2006) (report to police that
plaintiff tried to pass a counterfeit bill, which later proved to be genuine);
Pope v. Motel 6, 114 P.3d 277 (Nev. 2005); Levy v. Gandone, 14 A.D.3d
660, 789 N.Y.S.2d 291 (2005); Shillington v. K-Mart Corp., 102 N.C. App.
187, 402 S.E.2d 155 (1991) (accusation communicated to fellow security
guard and to police officer); DeLong v. Yu Enters., Inc., 334 Or. 166, 47
P.3d 8 (2002); see Matter of Disciplinary Action Against Mertz, 712
N.W.2d 849 (N.D. 2006) (dictum, privilege is only a qualified, not absolute
one).
346 Restatement (Second) of Torts § 598 cmt. f (1977).
347 Kelley v. Tanoos, 865 N.E.2d 593 (2007).
348 Ledvina v. Cerasani, 146 P.3d 70 (Ariz. Ct. App. 2006); Hagberg v.
California Fed. Bank FSB, 32 Cal. 4th 350, 81 P.3d 244, 7 Cal. Rptr. 3d
803 (2004).
349 See Ledvina v. Cerasani, 146 P.3d 70 (Ariz. Ct. App. 2006) (relying
in part on Victims’ Bill of Rights and in part on cases of reports to
prosecutors or grand juries, rather than to police, or else on cases
involving the privilege involved in preparing for civil litigation); Rodney A.
Smolla, Law of Defamation § 8:58 (available on Westlaw).
350 See § 37.11 (absolute privilege in judicial process). Thus Cutts v.
American United Life Ins. Co., 505 So.2d 1211 (Ala. 1987), applied an
absolute privilege for a defamatory answer to a prosecuting attorney’s
investigative question, but in the same year the same court in Tidwell v.
Winn-Dixie, Inc., 502 So.2d 747 (Ala. 1987), applied a qualified privilege
for a report to the police. Statements made in preparing for litigation are
also distinguishable from mere reports to public officials, and these too
may generate an absolute privilege, as in General Elec. Co. v. Sargent &
Lundy, 916 F.2d 1119 (6th Cir. 1990), which has sometimes been cited as
if it were a report to police.
351 Bergman v. Hupy, 64 Wis.2d 747, 221 N.W.2d 898 (1974).
352 Toker v. Pollak, 44 N.Y.2d 211, 376 N.E.2d 163, 405 N.Y.S.2d 1
(1978).
353 Reichardt v. Flynn, 374 Md. 361, 23 A.2d 566 (2003).
354 See Chapter 39.
355 Washburn v. Lavoie, 437 F.3d 84 (D.C. Cir. 2006) (student
neighbors of the plaintiff could respond to plaintiff’s report to university
and landlord of excessive noise by responding to the same recipients that
plaintiff’s tape recording of the alleged noise was illegal); Restatement
(Second) of Torts § 594 (1977); cf. Gregory’s Inc. v. Haan, 545 N.W.2d 488
(S.D. 1996) (conditional privilege to file lien of record, although this is not
considered a judicial proceeding).
356 E.g., Dickins v. Int’l Bhd. of Teamsters., 171 F.2d 21 (D.C. Cir.
1948); State v. Eighth Judicial Dist. Court ex rel. County of Clark, 42 P.3d
233 (Nev. 2002) (state official’s letter to newspaper responding to charges
allegedly made by the plaintiff); Gattis v. Kilgo, 128 N.C. 402, 38 S.E. 931
(1901); see J. A. Bryant, Annotation, Libel and Slander: Qualified Privilege
of Reply to Defamatory Publication, 41 A.L.R.3d 1083 (1972).
357 Cf. Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541 (4th Cir.
1994) (plaintiffs, previously accused of child abuse in highly publicized
case, had privilege to respond with attacks on accuser and did not become
public figures under constitutional rules by so responding).
358 See Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92 (2d Cir.
2000) (noting that New York law had so far not accorded the privilege to
publications made in the public media). But where public charges are
made, public self-defense seems appropriate if it does not otherwise exceed
the privilege. See State v. Eighth Judicial Dist. Court ex rel. County of
Clark, 42 P.3d 233 (Nev. 2002).
359 See Reynolds v. Pegler, 223 F.2d 429 (2d Cir. 1955) (choice
example of Pegler’s wide-ranging attack); State v. Eighth Judicial Dist.
Court ex rel. County of Clark, 42 P.3d 233 (Nev. 2002) (“The privilege may
be lost, however, if the reply: (1) includes substantial defamatory matter
that is irrelevant or non-responsive to the initial statement; (2) includes
substantial defamatory material that is disproportionate to the initial
statement; (3) is excessively publicized; or (4) is made with malice in the
sense of actual spite or ill will”).
361 Id. §§ 595 & 597.
362 See id. § 595 cmt. g.
363 Cf. Watt v. Longsdon, [1930] 1 K.B. 130 (1929) (no privilege to
communicate all the gossip one hears at “men’s clubs or women’s bridge
parties” to the spouses affected).
364 See Sigal Constr. Corp. v. Stanbury, 586 A.2d 1204 (D.C. 1991); cf.
Hassan v. Mercy Am. River Hosp., 31 Cal. 4th 709, 74 P.3d 726, 3 Cal.
Rptr. 3d 623 (2003) (hospital where plaintiff had worked giving material to
another hospital where plaintiff had applied for staff privileges; statute
provided qualified privilege); Gohari v. Darvish, 363 Md. 42, 767 A.2d 321
(2001) (interest of others’ privilege protected franchisee’s statements to
franchisor about a former employee who was now a prospective
competitor). This is sometimes treated as a common interest privilege, but
the main interest seems to be that of the recipient.
365 Van Eaton v. Fink, 697 N.E.2d 490 (Ind. Ct. App. 1998)
(paralegal).
366 Ikani v. Bennett, 284 Ark. 409, 682 S.W.2d 747 (1985); Toler v.
Sud-Chemie, Inc., 458 S.W.3d 276 (Ky. 2015); Gautschi v. Maisel, 565 A.2d
1009 (Me. 1989).
367Schrader v. Eli Lilly & Co., 639 N.E.2d 258 (Ind. 1994); Olson v.
3M Company, 523 N.W.2d 578 (Wis.App. 1994).
368 Gohari v. Darvish, 363 Md. 42, 767 A.2d 321 (2001).
369 Delta Health Group, Inc. v. Stafford, 887 So.2d 887 (Ala. 2004);
Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987).
370 Rasmussen v. Bennett, 741 P.2d 755 (Mont. 1987); Berger v.
Temple Beth-El of Great Neck, 41 A.D.3d 626, 839 N.Y.S.2d 504 (2007).
371 Taus v. Loftus, 40 Cal. 4th 683, 721, 151 P.3d 1185, 1210,54 Cal.
Rptr. 3d 775 (2007).
372 Christenson v. Gutman, 671 N.Y.S.2d 835 (App. Div. 1998).
373 See See 3 Dobbs, Hayden & Bublick, The Law of Torts § 536 (2d.
ed. 2011 & Supp.).
374 Gagan v. Yast, 966 N.E.2d 177 (Ind. Ct. App. 2012).
375 Cf. Richmond v. Southwire Co., 980 F.2d 518 (8th Cir. 1992);
Olson v. 3M Company, 523 N.W.2d 578 (Wis. Ct. App. 1994).
376 Draghetti v. Chmielwski, 416 Mass. 808, 626 N.E.2d 862 (1994).
In Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92 (2d Cir. 2000),
the court refused to determine whether the interest privileges could be
applied to a publication made to the general public in the media, saying
that under governing New York law, the privilege had so far been confined
to publications made to limited, clearly defined groups with a definite
relationship to the publisher.
377 Kelley v. Tanoos, 865 N.E.2d 593 (2007) (defendant discussed with
plaintiff’s employer, a school, the idea that the plaintiff might be guilty of
firing a weapon at the defendant, but defendant’s interest in establishing
guilt was not same as the school’s interest in repairing strained relations
that arose out of the shooting, hence no common interest privilege
applied).
378 Restatement (Second) of Torts § 611 (1977). Even statements of
public officials might qualify, see Maples Lanes, Inc. v. New Media Corp.,
322 Ill. App. 3d 842, 256 Ill. Dec. 124, 751 N.E.2d 177 (2001); but cf.
Greenbelt Coop. Publ’g Ass’n v. Bresler, 253 Md. 324, 252 A.2d 755 (1969),
rev’d on other grounds, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970)
(suggesting the privilege might not apply to report of an open city council
meeting as contrasted an official report by the same council).
379 If the plaintiff is a public figure, she will be required to show
knowing or reckless falsehood. If she is a private person and the issue is
one of public concern, she will be required to show at least negligence. See
§ 556.
380 Green Acres Trust v. London, 141 Ariz. 609, 618, 688 P.2d 617,
626 (1984).
381 Northland Wheels Roller Skating Center, Inc. v. Detroit Free
Press, Inc., 213 Mich.App. 317, 539 N.W.2d 774 (1995). But a report of a
witness’ testimony need not include a comprehensive report of the entire
trial. Rosenberg v. Helinski, 328 Md. 664, 616 A.2d 866 (1992).
382 See Costello v. Ocean County Observer, 136 N.J. 594, 643 A.2d
1012 (1994).
383 See Dameron v. Washington Magazine, 779 F.2d 736 (D.C. Cir.
1985); Bufalino v. Associated Press, 692 F.2d 266 (2d Cir. 1982).
384 See § 37.12 (abuse of privilege).
385 E.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th
Cir. 1988); Piscatelli v. Van Smith, 424 Md. 294, 35 A.3d 1140, 40 Media L.
Rep. (BNA) 1262 (2012) (fair reporting privilege protected newspaper and
reporter from defamation claims when challenged statements about
plaintiff were taken from plaintiff’s own testimony during criminal trial
and documents admitted at that trial).
386 E.g., Cresson v. Louisville Courier-Journal, 299 F. 487 (6th Cir.
1924).
387 E.g., Brandon v. Gazette Publ’g Co., 234 Ark. 332, 352 S.W.2d 92
(1961).
388 Trentecosta v. Beck, 703 So.2d 552 (La. 1997) (the fact of the
arrest and investigation but not evidence that is no part of a public
record).
389 Bray v. Providence Journal Co., 101 R.I. 111, 220 A.2d 531 (1966)
(school committee meeting).
390 Phoenix Newspapers, Inc. v. Choisser, 82 Ariz. 271, 312 P.2d 150
(1957) (Junior Chamber of Commerce open forum for candidates);
Restatement (Second) of Torts § 611 cmt. i (1977).
391 Herron v. Tribune Publ’g Co., Inc., 108 Wash.2d 162, 736 P.2d 249
(1987).
392 Dinkel v. Lincoln Publ’g (Ohio), Inc., 93 Ohio App.3d 344, 638
N.E.2d 611 (1994) (under statutory version of the privilege); cf. Gist v.
Macon County Sheriff’s Dept., 284 Ill.App.3d 367, 671 N.E.2d 1154, 219
Ill.Dec. 701 (1996) (newspaper published sheriff’s “most wanted” flyer
accurately stating warrant existed for plaintiff); Wright v. Grove Sun
Newspaper Co., Inc., 873 P.2d 983 (Okla. 1994) (district attorney’s press
conference about drug investigation by his office).
393 E.g., Newell v. Field Enters., Inc., 91 Ill.App.3d 735, 415 N.E.2d
434, 47 Ill.Dec. 429, 20 A.L.R.4th 551 (1980).
394 E.g., the contents of search warrants. Pearce v. Courier-Journal,
683 S.W.2d 633 (Ky. 1985).
395 Yohe v. Nugent, 321 F.3d 35 (1st Cir. 2003) (police chief’s
statement which itself was a summary of an oral report made to the police
department); Molnar v. Star-Ledger, 193 N.J. Super. 12, 471 A.2d 1209
(1984) (asserting a common interest type privilege and also report of
official conduct as analogy to fair report privilege).
(2007); cf. Phillips v. Evening Star Newspapers Co., 424 A.2d 78 (D.C.
1980) (oral statement of official (recorded on a hot line for newspapers) not
weighty enough to be entitled to the privilege).
397 Rosenberg v. Helinski, 328 Md. 664, 616 A.2d 866 (1992) (relying
in part on Harper, James & Gray).
398 Restatement (Second) of Torts § 611 cmt. c (1977) (“A person
cannot confer this privilege upon himself”).
399 Republic Tobacco Co. v. North Atl. Trading Co., Inc., 381 F.3d 717
(7th Cir. 2004).
400 Sahara Gaming Corp. v. Culinary Workers Union Local 226, 115
Nev. 212, 984 P.2d 164 (1999).
401 See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491–92, 95 S.Ct.
1029, 1044–45, 43 L.Ed.2d 328 (1975).
402 Restatement (Second) of Torts § 611 cmt. e (1977). For an
evaluation of the Restatement position, see 3 Dobbs, Hayden & Bublick,
The Law of Torts § 548 (2d. ed. 2011 & Supp.).
403 See John E. Theuman, Annotation, Libel and Slander: Reports of
Pleadings as Within Privilege for Reports of Judicial Proceedings, 20
A.L.R.4th 576 (1981).
404 See Solaia Tech., LLC. v. Specialty Publ’g Co., 221 Ill. 2d 558, 852
N.E.2d 825, 304 Ill. Dec. 369 (2006); Mark v. King Broad. Co., 27 Wash.
App. 344, 618 P.2d 512 (1980); Rodney A. Smolla, Law of Defamation 8.70
(updated, available on Westlaw).
405 556 F.2d 113 (2d Cir. 1977).
406 Id. at 120.
407 E.g., Dickey v. CBS, Inc., 583 F.2d 1221 (3d Cir. 1978); Young v.
The Morning Journal, 76 Ohio St.3d 627, 669 N.E.2d 1136 (1996); Norton
v. Glenn, 860 A.2d 48 (Pa. 2004).
408 See Condit v. Dunne, 317 F.Supp.2d 344 (S.D. N.Y. 2004)
(“Defendant’s comments in each medium were not neutral. Defendant
concurred in the allegations he reported, making clear in each publication
that he believed that plaintiff was criminally involved in Ms. Levy’s
disappearance”).
409 Krauss v. Champaign News Gazette, Inc., 59 Ill. App. 3d 745, 375
N.E.2d 1362, 17 Ill. Dec. 78 (1978).
410 Khawar v. Globe Int’l, Inc., 19 Cal. 4th 254, 19 Cal. 4th 1073A, 965
P.2d 696, 79 Cal. Rptr. 2d 178 (1998) (rejecting the privilege when purely
private persons are defamed, not passing on the privilege as to public
figures).
411 Rosenberg v. Helinski, 328 Md. 664, 616 A.2d 866 (1992).
412 Brandon v. Gazette Pub. Co., 234 Ark. 332, 352 S.W.2d 92 (1961).
413 Phoenix Newspapers, Inc. v. Choisser, 82 Ariz. 271, 312 P.2d 150
(1957).
414 Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1992);
Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193 (1959)
(report of a press conferences held by Senator Joseph McCarthy about a
secret congressional committee meeting).
415 The normal truth rules hold that the defendant cannot rely on the
fact that he accurately reported defamatory statements of others; he must
instead prove the truth of the underlying assertions, not merely the truth
of the fact that the accusation was made. See § 533.
416 See Shepard v. Schurz Commc’ns, Inc., 847 N.E.2d 219 (Ind. 2006)
(defendant “accurately reported a quotation upon a matter of public
concern…. Litz’s statements were quoted, but not adopted or endorsed by
the Times”; summary judgment for publisher affirmed). See also Green v.
CBS Inc., 286 F.3d 281 (5th Cir. 2002); Howard v. Antilla, 294 F.3d 244
(1st Cir. 2002); KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex. Ct.
App. 1997).
417 Cole v. Star Tribune, 581 N.W.2d 364 (Minn. App. Ct. 1998)
(publisher’s reliance on wire services report); Karaduman v. Newsday,
Inc., 51 N.Y.2d 531, 549, 416 N.E.2d 557, 566, 435 N.Y.S.2d 556, 566
(1980) (“a company or concern which simply republishes a work is entitled
to place its reliance upon the research of the original publisher, absent a
showing that the republisher had, or should have had, substantial reasons
to question the accuracy”).
418 For further assessment, see 3 Dobbs, Hayden & Bublick, The Law
of Torts § 549 (2d. ed. 2011 & Supp.)
419 See SDV/ACCI, Inc. v. AT & T Corp., 522 F.3d 955 (9th Cir. 2008).
420 Emo v. Milbank Mut. Ins. Co., 183 N.W.2d 508 (N.D. 1971).
421 E.g., Ikani v. Bennett, 284 Ark. 409, 682 S.W.2d 747 (1985); Gattis
v. Kilgo, 128 N.C. 402, 38 S.E. 931 (1901).
422 Williams v. Tharp, 889 N.E.2d 870, 877 (Ind. Ct. App. 2008);
Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. 429, 439, 833
N.E.2d 679, 688 (2005) (“Simple negligence, want of sound judgment, or
hasty action will not cause loss of the privilege” (quoting)).
423 Elliott v. Roach, 409 N.E.2d 661 (Ind. Ct. App. 1980); Pratt v.
Nelson, 164 P.3d 366, 377 (Utah 2007); Restatement (Second) of Torts §
604 (1977). Sometimes courts view excessive publication as merely one
way of showing common law malice or ill will. See Wayment v. Clear
Channel Broad., Inc., 116 P.3d 271, 288 (Utah 2005) (“Evidence of malice
in this context may include indications that the [statements] were
excessively published”).
424 Cf. Kliebenstein v. Iowa Conference of the United Methodist
Church, 663 N.W.2d 404 (Iowa 2003) (letter about member of congregation
sent both to congregation and to others in the larger community would not
be protected).
425 Zinda v. Louisiana Pac. Corp., 149 Wis.2d 913, 440 N.W.2d 548
(1988).
426 See Setliff v. Akins, 616 N.W.2d 878 (S.D. 2000).
427 Maple Lanes, Inc. v. New Media Corp., 256 Ill. Dec. 124, 126, 751
N.E.2d 177, 179 (2001); see also Weber v. Lancaster Newspapers, Inc., 878
A.2d 63 (Pa. Super. 2005).
428 Green Acres Trust v. London, 141 Ariz. 609, 618, 688 P.2d 617,
626 (1984); Wilson v. Meyer, 126 P.3d 276 (Colo. Ct. App. 2005); Solaia
Tech., LLC. v. Specialty Publ’g Co., 221 Ill.2d 558, 304 Ill. Dec. 369, 852
N.E.2d 825 (2006); Wright v. Grove Sun Newspaper Co., 873 P.2d 983
(Okla. 1994); Restatement (Second) of Torts § 611 cmt. a (1977).
(2007).
430 E.g., Smith v. Des Moines Pub. Sch., 259 F.3d 942 (8th Cir. 2001)
(Iowa law); Delta Health Group, Inc. v. Stafford, 887 So.2d 887, 897 (Ala.
2004); Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 375, 149 A.2d
193, 202 (1959) (“the privilege is lost if the publication is not made
primarily for the purpose of furthering the interest which is entitled to
protection” (quoting Prosser)); Brehany v. Nordstrom, Inc., 812 P.2d 49
(Utah 1991). Sometimes it is said that it is not malice itself that destroys
the privilege but the fact that the defendant has gone beyond the purpose
for which the privilege exists. Kelley v. Tanoos, 865 N.E.2d 593 (Ind.
2007). A purpose to undermine or prevent potential criticism of job
performance might suffice. See Albert v. Loksen, 239 F.3d 256 (2d Cir.
2001). It may be that either common law malice in the sense of ill will or
constitutional malice in the sense of reckless disregard of the truth will
suffice to destroy the privilege. See Hailstone v. Martinez, 169 Cal. App.
4th 728, 87 Cal. Rptr. 3d 347 (2008). One group of cases applies the same
rule even to the public interest privilege, with the result that it will be
dangerous for a citizen to report evidence to the police if the citizen also
dislikes the supposed criminal. See Otten v. Schutt, 15 Wis. 2d 497, 113
N.W.2d 152 (1962); Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760
(2002) (report to child protection agency that husband had abused
defendant’s children was unfounded and malicious, no privilege). Liability
for honest report of evidence to officials merely because the reporter
doubts the evidence was criticized in Dan B. Dobbs, Belief and Doubt in
Malicious Prosecution and Libel, 21 Ariz. L. Rev. 607 (1979), arguing that
the citizen-accuser should be free to rely upon officers to make the
appropriate decision.
431 Taus v. Loftus, 40 Cal. 4th 683, 721, 151 P.3d 1185, 1210,54 Cal.
Rptr. 3d 775, 805 (2007); Dragonas v. School Comm. of Melrose, 64 Mass.
App. Ct. 429, 833 N.E.2d 679 (2005); Richmond v. Nodland, 552 N.W.2d
586 (N.D. 1996).
432 See Barreca v. Nickolas, 683 N.W.2d 111(Iowa 2004); Costello v.
Hardy, 864 So.2d 129, 148 n.18 (La. 2004); Jackson v. Columbus, 117 Ohio
St.3d 328, 331, 883 N.E.2d 1060, 1064 (2008).
433 Clark v. America’s First Credit Union, 585 So.2d 1367, 1371 (Ala.
1991).
434 Kuwik v. Starmark Star Mktg. & Admin., Inc., 156 Ill.2d 16, 30,
619 N.E.2d 129, 135, 188 Ill.Dec. 765, 771 (1993).
435 E.g., Blodgett v. University Club, 930 A.2d 210 (D.C. 2007)
(language “so excessive, intemperate, unreasonable, and abusive as to
forbid any other reasonable conclusion than that the defendant[s] [were]
actuated by express malice”); Bauer v. State, 511 N.W.2d 447 (Minn.
1994).
436 Liberman v. Gelstein, 80 N.Y.2d 429, 439, 605 N.E.2d 344, 350,
590 N.Y.S.2d 857, 863 (1992).
437 Caudle v. Thomason, 992 F.Supp. 1 (D.D.C. 1997); DeNardo v.
Bax, 147 P.3d 672 (Alaska 2006).
439 See Haworth v. Feigon, 623 A.2d 150 (Me. 1993) (trial judge
charged jury that the plaintiff had to prove knowing or reckless falsehood,
consequently it was not reversible error that trial judge failed to charge on
privilege).
440 De Leon v. Saint Joseph Hosp., Inc., 871 F.2d 1229 (4th Cir. 1989);
Barreca v. Nickolas, 683 N.W.2d 111 (Iowa 2004) (dropping motive or
malice test in favor of a knowing or reckless falsehood test when local
councilman invokes a qualified privilege); Kennedy v. Sheriff of E. Baton
Rouge, 920 So.2d 217 (La. 2006) (knowing or reckless falsehood required to
show abuse of the public interest privilege to report suspected crime to
police); Eckman v. Cooper Tire & Rubber Co., 893 So.2d 1049, 1053 (Miss.
2005); Pope v. Motel 6, 114 P.3d 277 (Nev. 2005) (report to police given a
qualified privilege; “the plaintiff must prove by a preponderance of the
evidence that the defendant abused the privilege by publishing the
defamatory communication … demonstrating that a statement is
published with knowledge that it was false or with reckless disregard for
its veracity”); Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771 (Tex.
1994).
441 Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J.
392, 655 A.2d 417 (1994) (recognizing knowing or reckless falsehood
standard for some cases, negligence for others). In Kennedy v. Sheriff of
East Baton Rouge, 920 So.2d 217 (La. 2006), the court required proof of
negligence or greater fault on the plaintiff’s prima facie case, but held that
once the defendant established grounds for a privileged report to the
police, the plaintiff would have the burden of showing the defendant was
guilty of even greater fault, knowing or reckless falsehood in making the
report. Since a report to the police would always establish the privilege,
with only the abuse issue remaining, this seems to work out to be
substantively the same as saying that the plaintiff must prove knowing or
reckless falsehood in this category of cases.
442 Schrader v. Eli Lilly & Co., 639 N.E.2d 258 (Ind. 1994); Haworth
v. Feigon, 623 A.2d 150 (Me. 1993); Liberman v. Gelstein, 80 N.Y.2d 429,
605 N.E.2d 344, 590 N.Y.S.2d 857 (1992).
443 McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384
(1985).
444 A line of Supreme Court decisions established that federal
antitrust laws did not apply to petitioning activity unless the petitioning
was a sham to carry forward anti-competitive conduct. To show sham
litigation and thus to circumvent the right to petition defense, the plaintiff
had to show that the litigation was objectively baseless and also,
subjectively, brought for some improper purpose, to gain collateral
advantage, not to win. See Professional Real Estate Investors, Inc. v.
Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d
611 (1993). The Court perhaps implied that the First Amendment right of
petition would dictate such a rule aside from statutory construction, and
some other courts have explicitly so held. See Titan Am., LLC v. Riverton
Inv. Corp., 264 Va. 292, 569 S.E.2d 57 (2002).
445 See George W. Pring & Penelope Canan, SLAPPs: Getting Sued
for Speaking Out (1996); Penelope Canan & George W. Pring, Studying
Strategic Lawsuits Against Public Participating: Mixing Quantitative and
Qualitative Approaches, 22 L. & Soc’y Rev. 385 (1988); George W. Pring,
SLAPPS: Strategic Lawsuits Against Public Participation, 7 Pace Envt’l L.
Rev. 3 (1989); George W. Pring & Penelope Canan, “Strategic Lawsuits
Against Public Participation” (“Slapps”): An Introduction for Bench, Bar
and Bystanders, 12 Bridgeport L. Rev. 937 (1992).
446 Some statutes appear to afford an absolute immunity by
protecting all petitioning activity unless it is a sham in the sense that it is
not really aimed at procuring favorable government action. R.I. Gen. L. §
9–33–2 (labeling the immunity conditional, however). The Massachusetts
practice is structured. The defendant raising the anti-SLAPP statute must
first make a threshold showing that the suit against him was based on
petitioning activities and only on such activities. Once that is shown, the
plaintiff must suffer dismissal unless she can show that “the defendants’
[petitioning] activities were devoid of any reasonable factual support or
any arguable basis in law.” The defendant must make this showing by a
preponderance of the evidence. Baker v. Parsons, 434 Mass. 543, 750
N.E.2d 953 (2001). California’s statute halts discovery, Cal. Code Civ.
Proc. § 425.16 (g), and grants a motion to strike the claim unless the
plaintiff can show she will probably prevail. Id. § 425.16 (b). This has
worked out to be an absolute immunity or something close to it in some
instances. See Dixon v. Superior Court Scientific Res. Surveys, Inc., 30
Cal. App. 4th 733, 36 Cal. Rptr. 2d 687 (1994).
447 Some statutes offer a qualified immunity only, defeasible if the
defendant publishes in bad faith. Nev. Rev. Stat. § 41.650; Rev. Code.
Wash. Ann. § 4.24.510. The Delaware and New York statutes do not grant
an absolute immunity but merely invoke, on behalf of public participants,
the constitutional rules requiring proof of knowing or reckless falsehood.
10 Del. Code Ann. § 8136; N.Y. Civ. Rts. L. § 76–a. Georgia merely
requires the plaintiff to verify the complaint if it is directed at speech or
petitioning activity. See Denton v. Browns Mill Dev. Co., Inc., 275 Ga. 2,
561 S.E.2d 431 (2002).
448 In Massachusetts, the statute applies even when the defendant is
addressing a private interest. See Duracraft Corp. v. Holmes Prods. Corp.,
427 Mass. 156, 691 N.E.2d 935 (1998). But other statutes may apply more
restrictively, sometimes only when the plaintiff has applied for a public
permit or licenses or the like, e.g., N.Y. Civ. Rts. L. § 76–a, or where the
defendant speaks in a public forum or on a public issue, leaving issues
about what counts as public forum for petitioning activity and what counts
as a public issue. A single statute may be interpreted quite narrowly or
quite broadly in determining public interest and public fora. Compare
Condit v. Nat’l Enquirer, Inc., 248 F.Supp. 2d 945 (E.D. Cal. 2002)
(seemingly, a tabloid publication which published a statement that the
plaintiff “verbally attacked” Chandra Levy just days before Levy’s
disappearance was not addressing an issue of public interest; the case was
“not the type of meritless case brought to obtain a financial or political
advantage over or to silence opposition from a defendant, which
California’s anti-SLAPP statute is designed to discourage”), with Nygard,
Inc. v. Uusi-Keerttula, 159 Cal. App. 4th 1027, 72 Cal. Rptr. 3d 210 (2008)
(defendant’s interview in a magazine discussing work conditions when he
was employed by plaintiff was an issue of public significance because
public was interested and publication in a magazine is publication in a
public forum).
449 Navellier v. Sletten, 29 Cal. 4th 82, 52 P.3d 703, 124 Cal. Rptr. 2d
530 (2002) (by statutory definition).
450 In Kobrin v. Gastfriend, 443 Mass. 327, 821 N.E.2d 60 (2005), the
court concluded that a paid witness was not entitled to the protection of
the anti-SLAPP statute because he was not seeking redress or petitioning
on his own behalf.
451 E.g., Kibler v. Northern Inyo County Local Hosp. Dist., 39 Cal.4th
192, 138 P.3d 193 (2006) (defamation, abuse of process, and interference
with plaintiff’s practice of medicine); Huntingdon Life Scis., Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228, 29 Cal.
Rptr. 3d 521 (2005) (suit for harassment and emotional distress by
protestors at the plaintiff’s home; statute applied but the plaintiff met her
burden of showing probability of success); Adams v. Whitman, 62 Mass.
App. Ct. 850, 822 N.E.2d 727 (2005) (abuse of process claim dismissed
under the anti-SLAPP statute; it was devoid of legal and factual support
because essential allegations were both unverified and conclusory).
452 Some statutes are tailored much more narrowly, to protect only
petitioning activity addressed to government or quasi-governmental
bodies.
453 See Cal. Civ. Proc. Code § 425.16(b)(1). Thus the statute “subjects
to potential dismissal only those actions in which the plaintiff cannot state
and substantiate a legally sufficient claim.” Navellier v. Sletten, 29 Cal.
4th 82, 52 P.3d 703 (2002).
454 See Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal.4th 53,
52 P.3d 685, 124 Cal.Rptr.2d 507 (2002); Office One, Inc. v. Lopez, 437
Mass. 113, 769 N.E.2d 749 (2002).
455 City of Cotati v. Cashman, 29 Cal.4th 69, 52 P.3d 695, 124
Cal.Rptr.2d 519 (2002).
456 See Dixon v. Superior Court Scientific Res. Surveys, Inc., 30 Cal.
App. 4th 733, 36 Cal. Rptr. 2d 687 (1994).
457 Office One, Inc. v. Lopez, 437 Mass. 113, 769 N.E.2d 749 (2002).
458 See § 37.15.
459 Flatley v. Mauro, 39 Cal. 4th 299, 139 P.3d 2, 46 Cal. Rptr. 3d 606
(2006) (plaintiff asserted several claims, including “extortion” and
defamation based on defendant’s threats to expose the plaintiff’s alleged
misdeeds; defendant’s threats as a matter of law were extortionate under a
criminal statute and that prevented his reliance upon the anti-SLAPP
statute).
460 See Equilon Enters., LLC, 29 Cal.4th 53, 52 P.3d 685, 124
Cal.Rptr.2d 507 (2002).
461 E.g., Cal. Civ. Proc. Code § 425.16 (g).
462 See Joseph W. Beatty, The Legal Literature on SLAPPs: A Look
Behind the Smoke Nine Years after Professor Pring and Canan First
Yelled “Fire!”, 9 U. Fla. J.L. & Pub. Pol’y 85 (1997).
463 Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 691
N.E.2d 935 (1998).
464 Opinion of the Justices (SLAPP Suit Procedure), 138 N.H. 445,
641 A.2d 1012 (1994).
465 Many cases have so held, including the best-known libel case, New
York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964).
466 E.g., Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007) (plaintiff’s
clergyman was also her professional counselor, but he revealed
confidential communications to the church, condemning the plaintiff; the
defamation claim dismissed below and the remaining professional
negligence claim was dismissed on Constitutional grounds by the Texas
Supreme Court). The case is criticized in Recent Cases, 121 Harv. L. Rev.
676 (2007).
467 § 37.19.
468 A circumscribed form of strict liability, analogous to the strict
liability of product manufacturers, might have been more justified as
applied to defendants whose product is culture- and value-shaping
communication, especially in light of the enormous power mass publishers
wield. That was not the common law system, however, and the argument
for such a system now is undercut to some degree by the capacity of
individuals to reach wide audiences on the internet.
469 New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,
11L.Ed.2d 686 (1964), arose out of the controversies and feelings of the
civil rights struggle in the 1960s. A group of responsible persons published
an advertisement in the New York Times soliciting donations, in part to
defend Dr. Martin Luther King, who stood charged with perjury in
Alabama. The advertisement asserted that those upholding civil rights
were being subjected to a “wave of terror,” and that “Southern violators”
had bombed King’s home and that “They have arrested him seven
times….” The police commissioner of Montgomery, Sullivan, sued the New
York Times claiming defamation. He argued that the advertisement
implicitly identified those who arrested King as Southern violators who
also bombed his home. Since the police commissioner was supervisor of the
police, he claimed the advertisement libeled him even though he was not
named. The Alabama Supreme Court affirmed a judgment against the
New York Times for $500,000. It was this judgment that was reversed by
the Supreme Court’s requirement of a knowing or reckless falsehood.
470 Curtis Publ’g Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d
1094 (1967).
L.Ed.2d 789 (1974).
472 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).
L.Ed.2d 789 (1974).
474 States may thus adopt a negligence standard or any more
demanding standard of fault. See § 565.
475 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).
476 New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964) (public officials); Curtis Publ’g Co. v. Butts, 388 U.S.
130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (public figures).
477 On the recklessness standard, see See 3 Dobbs, Hayden & Bublick,
The Law of Torts § 564 (2d. ed. 2011 & Supp.).
478 Murphy v. Boston Herald, Inc., 449 Mass. 42, 865 N.E.2d 746
(2007).
479 See, e.g., Greenbelt Coop. Publ’g Ass’n v. Bresler, 253 Md. 324, 252
A.2d 755 (1969) (reversed partly because trial judge instructed on ill will
or spite as malice).
480 Thomas v. Telegraph Publ’g Co., 155 N.H. 314, 328, 929 A.2d 993,
1007 (2007); Jackson v. Columbus, 117 Ohio St.3d 328, 334, 883 N.E.2d
1060, 1067 (2008).
481 Some courts do not apply that standard to the issue of falsity as
distinct from issues of fault. See § 37.18.
482 New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964). See Walker v. Kiousis, 93 Cal. App. 4th 1432, 114 Cal.
Rptr. 2d 69 (2001).
483 E.g., Lyons v. Nichols, 63 Conn. App. 761, 778 A.2d 246 (2001)
(presumed damages permitted to a public figure upon showing of knowing
or reckless falsehood, and where no harm was proven, the court would be
free to award “nominal” damages of $100 plus punitive damages); Hanlon
v. Davis, 76 Md. App. 339, 545 A.2d 72 (1988) (even private person could
recover presumed damages if he proves knowing or reckless falsehood);
Mitchell v. Griffin Television, LLC, 60 P.3d 1058 (Okla. Civ. App. 2002)
(similar); Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).
484 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997 (1974).
485 Id. at 350 n.1, 94 S.Ct. at 3012 n.1 (“actual injury is not limited to
out-of-pocket loss” but includes “impairment of reputation and standing in
the community, personal humiliation, and mental anguish and suffering”
and “there need be no evidence which assigns an actual dollar value to the
injury”).
486 Francis M. Dougherty, Annotation, Defamation: Application of
New York Times And Related Standards to Nonmedia Defendants, 38
A.L.R.4th 1114 (1981).
2011 & Supp.).
488 See § 37.14.
489 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).
490 See, e.g., W.J.A. v. D.A., 210 N.J. 229, 43 A.3d 1148, 40 Media L.
Rep. (BNA) 1830 (2012) (false accusations of child molestation; where
statements involved only matters of private concern and the plaintiff is a
private person, doctrine of presumed damages would be retained).
491 See Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d
562 (1986); Cox v. Hatch, 761 P.2d 556 (Utah 1988).
492 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related
Problems § 6.6 (available, updated, on Westlaw).
493 See Dixon v. International Bhd. of Police Officers, 504 F.3d 73, 87
(1st Cir. 2007).
494 Costello v. Ocean County Observer, 136 N.J. 594, 643 A.2d 1012,
44 A.L.R.5th 799 (1994); Krueger v. Austad, 545 N.W.2d 205 (S.D. 1996).
495 Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S. Ct. 669, 676 (1966). But
in Mandel v. The Boston Phoenix, Inc., 322 F.Supp.2d 39, 42 (D. Mass.
2004), vacated on other grounds, 456 F.3d 198 (1st Cir. 2006), “at the very
least” became “only”—“only those employees with ‘substantial
responsibility for or control over the conduct of government affairs’ are
deemed public officials.” Mandel did not invent this twist, but got it from
Kassel v. Gannett Co., Inc., 875 F.2d 935 (1st Cir. 1989), where the court
also imported tests of “public figure” to determine “public official” status.
496 Lane v. MPG Newspapers, 438 Mass. 476, 781 N.E.2d 800 (2003).
497 Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S. Ct. 669, 676 n.13 (1966).
498 In Mandel v. Boston Phoenix, Inc., 456 F.3d 198 (1st Cir. 2006),
the court seemed to say that public official status is determined by “taking
into account: (i) the extent to which the inherent attributes of a position
define it as one of influence over issues of public importance; (ii) the
position’s special access to the media as a means of self-help; and (iii) the
risk of diminished privacy assumed upon taking the position.” The latter
two points seem to be taken directly from the public figure test. In fact, the
First Circuit, in its earlier decision in Kassel v. Gannet Co., Inc., 875 F.2d
935 (1st Cir. 1989), expressly took them from Gertz’ definition of public
figures. As to public figure tests, see § 560.
499 Rosenblatt v. Baer, 383 U.S. 75, 87, 86 S.Ct. 669, 676, 15 L.Ed.2d
597 (1966); Revell v. Hoffman, 309 F.3d 1228 (10th Cir. 2002).
500 Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d
35 (1971) (candidates could be considered either public officials or public
figures).
501 See Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628,
28 L.Ed.2d 57 (1971) (mayor); Lane v. MPG Newspapers, 438 Mass. 476,
781 N.E.2d 800 (2003); Krueger v. Austad, 545 N.W.2d 205 (S.D. 1996)
(state senator).
502 Barnett v. Mobile County Personnel Bd., 536 So.2d 46 (Ala. 1988)
(town clerk in charge of payroll); Demby v. English, 667 So.2d 350 (Fla.
Dist. Ct. App. 1995) (director of animal control).
503 Moriarty v. Lippe, 162 Conn. 371, 378, 294 A.2d 326, 330–331
(1972) (although low-ranking, “a patrolman’s office, if abused, has great
potential for social harm and thus invites independent interest in the
qualifications and performance of the person who holds the position”);
Rotkiewicz v. Sadowsky, 431 Mass. 748, 730 N.E.2d 282 (2000); Costello v.
Ocean County Observer, 136 N.J. 594, 643 A.2d 1012, 44 A.L.R.5th 799
(1994); Hall v. Rogers, 490 A.2d 502 (R.I. 1985) (police officers are public
officials, semble, as a matter of law). But cf. Nash v. Keene Publ’g Corp.,
498 A.2d 348 (N. H. 1985) (jury question whether officer was public
official).
504 McCurcheon v. Moran, 99 Ill. App.3d 421, 424, 425 N.E.2d 1130,
1133, 54 Ill. Dec. 913, 916 (1981).
505 Johnson v. Robbinsdale Indep. Sch. Dist. No. 281, 827 F.Supp.
1439, 1443 (D. Minn. 1993) (“Education of children is of vital importance to
our society…. A contrary holding would stifle public debate about
important local issues”); Sewell v. Brookbank, 119 Ariz. 422, 581 P.2d 267
(Ct. App. 1978); Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693, 709
(1992).
506 E.g., Fiacco v. Sigma Alpha Epsilon Fraternity, 528 F.3d 94 (1st
Cir. 2008) (a university administrator a public official, but conflating the
public official test with public figure tests); Ortego v. Hickerson, 989 So.2d
777 (La. Ct. App. 2008) (executive director of housing authority a public
official); Porcari v. Gannett Satellite Info. Network, Inc., 50 A.D.3d 993,
856 N.Y.S.2d 217 (2008) (lawyer employed in city attorney’s office was not
a public official); Scaccia v. Dayton Newspapers, Inc., 170 Ohio App.3d
471, 867 N.E.2d 874 (2007); (“chief of the criminal section of the City of
Dayton Law Department meets the public official test”); Cloud v.
McKinney, 228 S.W.3d 326 (Tex. App. 2007) (executive director of lottery
commission a public figure); O’Connor v. Burningham, 165 P.3d 1214
(Utah 2007) (high school basketball coach not a public official); see Danny
R. Veilleux, Annotation, Who Is “Public Official” For Purposes of
Defamation Action, 44 A.L.R.5th 193 (1996).
507 Curtis Publ’g Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d
1094 (1967).
L.Ed.2d 789 (1974).
509 Gertz, 418 U. S. at 345, 351, 94 S. Ct. at 3009, 3013.
510 See Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975,
1991, 18 L.Ed.2d 1094 (1967) (Harlan, J.); Chuy v. Philadelphia Eagles
Football Club, 595 F.2d 1265, 1280 (3d Cir. 1977).
511 Bongiovi v. Sullivan, 138 P.3d 433 (Nev. 2006).
512 Wayment v. Clear Channel Broad., Inc., 116 P.3d 271 (Utah 2005).
513 National Found. for Cancer Research, Inc. v. Council of Better
Bus. Bureaus, Inc., 705 F.2d 98 (4th Cir. 1983).
514 E.g., Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir.
1980).
515 E.g., Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46
N.Y.2d 1065, 390 N.E.2d 298, 416 N.Y.S.2d 790 (1979).
516 National Found. for Cancer Research, Inc. v. Council of Better
Bus. Bureraus, Inc., 705 F.2d 98 (4th Cir. 1983).
517 E.g., Reader’s Digest Ass’n v. Superior Court, 37 Cal.3d 244, 690
P.2d 610, 208 Cal.Rptr. 137 (1984) (church).
518 Id. at 345, 94 S.Ct. at 3009.
519 Id. at 351, 94 S.Ct. at 3013 (“an individual voluntarily injects
himself or is drawn into a particular public controversy and thereby
becomes a public figure for a limited range of issues”).
2011 & Supp.).
521 Hatfill v. New York Times Co., 532 F.3d 312, 319 (4th Cir. 2008)
(five factors, asking “whether (1) the plaintiff has access to channels of
effective communication, (2) the plaintiff voluntarily assumed a role of
special prominence in the controversy, (3) the plaintiff sought to influence
the resolution of the controversy, (4) the controversy existed prior to the
publication of the defamatory statements, and (5) the plaintiff retained
public figure status at the time of the alleged defamation”).
522 Contemporary Mission, Inc. v. New York Times Co., 842 F.2d 612,
6127 (2d Cir. 1988) (four elements of proof required: “A defendant must
show the plaintiff has: (1) successfully invited public attention to his views
in an effort to influence others prior to the incident that is the subject of
litigation; (2) voluntarily injected himself into a public controversy related
to the subject of the litigation; (3) assumed a position of prominence in the
public controversy; and (4) maintained regular and continuing access to
the media”) (emphasis added); see also Neely v. Wilson, 418 S.W.3d 52
(Tex. 2013) (three elements).
523 E.g., Mathis v. Daly, 695 S.E.2d 807 (N.C. Ct. App. 2010);
Klentzman v. Brady, 312 S.W.3d 886, 905 (Tex. App. 2009).
524 Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d
35 (1971) (charge that plaintiff candidate was former small-time
bootlegger; charge of criminal conduct, no matter how remote, is protected
by the rule); Dixon v. International Bhd. of Police Officers, 504 F.3d 73, 87
(1st Cir. 2007) (noting that almost any statement regarding a public
official will be relevant and holding that defamation relating to the
plaintiff’s alleged sexual conduct was mixed with other defamation clearly
germane to her fitness for office).
525 New York Times Co. v. Sullivan, 376 U.S. 254, 286, 84 S.Ct. 710,
729, 11 L.Ed.2d 686 (1964). Presumably convincing clarity can be equated
with the familiar clear and convincing evidence standard.
526 See Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).
527 See Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1252 (9th
Cir. 1997) (recognizing the more or less impossible task of de novo review
while giving deference to jury decisions on credibility).
528 Dibella v. Hopkins, 403 F.3d 102 (2d Cir. 2005); Deutcsh v.
Birmingham Post Co., 603 So.2d 910 (Ala. 1992). Dibella listed and
discussed a number of cases, concluding that most courts to consider the
issue have held that this standard applies to the issue of falsity as well as
to the issue of fault or “actual malice.” The court went on to predict that
New York would follow this standard even if it is not a constitutional
requirement.
529 Some judges have suggested that the convincing-clarity
requirement applied only to the knowing or reckless elements and that
falsity could be proved by a preponderance of the evidence. See Ayala v.
Washington, 679 A.2d 1057 (D.C. 1996); Yeakey v. Hearst Commc’ns, Inc.,
234 P.3d 332 (Wash. Ct. App. 2010).
530 Denny v. Mertz, 106 Wis.2d 636, 318 N.W.2d 141 (1982) (holding,
over a dissent by Justice Abrahamson, that a magazine publishing a
quotation from an individual was protected by the Gertz rule but that the
individual who supplied the quotation was not).
531 Kennedy v. Sheriff of E. Baton Rouge, 920 So.2d 217 (La. 2006);
Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, 592, 350 A.2d 688, 695
(1976) (as a matter of tort law, it would be bizarre to impose strict liability
upon individuals while relieving an enterprise); Wampler v. Higgins, 93
Ohio St.3d 111, 752 N.E.2d 962 (2001) (state constitution’s protection for
opinion statements extends to non-media defendants, criticizing cases
limiting speech protection to media defendants).
532 For a fuller discussion see 3 Dobbs, Hayden & Bublick, The Law of
Torts §§ 564–565 (2d ed. 2011 & Supp.).
533 Literal falsity is not enough to meet the constitutional demand. If
the publisher knows the statement he is publishing is literally false, as in
the case of a known misquotation, the defendant is still not liable if the
statement is substantially true in the sense that it caused no more injury
to the plaintiff’s reputation than a similar and true statement. See Masson
v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d
447 (1991).
534 Cobb v. Time, Inc., 278 F.3d 629 (6th Cir. 2002) (also holding that
the fact that a witness is paid for his sensational story is not enough to
show knowing or reckless falsehood).
535 DeAngelis v. Hill, 180 N.J. 1, 847 A.2d 1261 (2004); New Times,
Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004) (actual malice concerns
the defendant’s attitude toward the truth, not toward the plaintiff).
536 Cobb v. Time, Inc., 278 F.3d 629 (6th Cir. 2002) (failure to
interview all witnesses); New York Times Co. v. Connor, 365 F.2d 567 (5th
Cir. 1966); Bertrand v. Mullin, 846 N.W.2d 884 (Iowa), cert. denied, 135
S.Ct. 373 (2014); Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005) (critic
suggesting criminal justice system in county was tainted and based on
“win at all costs” approach only studied ten cases out of thousands; this is
no evidence of known falsehood); but cf. Curtis Publ’g Co. v. Butts, 388
U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (some Justices found
reckless disregard of the truth largely because of slipshod investigation of
serious allegation and a source regarded as untrustworthy).
537 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,472 U.S. 749,
105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).
538 See Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99
L.Ed.2d 41 (1988) (expressing the view that fault must relate to falsehood
in a privacy claim); Kennedy v. Sheriff of E. Baton Rouge, 920 So.2d 217
(La. 2006).
539 E.g., Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 560 P.2d
1216 (1977); Kennedy v. Sheriff of E. Baton Rouge, 920 So.2d 217 (La.
2006); Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412 (Tenn. 1978);
Restatement (Second) of Torts § 580B (1977).
540 Mount Juneau Enters., Inc. v. Juneau Empire, 891 P.2d 829
(Alaska 1995); Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103,
33 A.L.R.4th 193 (Colo. 1982) (but rejecting the subjective test of reckless
disregard); Shepard v. Schurz Commc’ns, Inc., 847 N.E.2d 219 (Ind. 2006).
541 Gobin v. Globe Pub. Co., 216 Kan. 223, 531 P.2d 76, 84 (1975);
Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981).
542 Restatement (First) of Torts § 566 (1938); see George C. Christie,
Defamatory Opinions and the Restatement (Second) of Torts, 75 Mich. L.
Rev. 1621 (1977). The First Restatement’s illustration has it that one
making a political speech and truthfully describing the plaintiff’s actions
with particularity is guilty of defamation if he characterizes the plaintiff’s
acts as like those of a murderer. It leaves open the possibility of a
privilege. The Second Restatement, however, restated the rule of § 566 to
say that an opinion statement would be actionable only if it implied the
allegation of undisclosed defamatory facts.
543 Burton v. Crowell Publ’g Co., 82 F.2d 154 (2d Cir. 1936) (by
accident of lighting and composition photo made it appear that a piece of
the plaintiff’s saddle was a part of the plaintiff’s person and that he was
exposing himself; although any viewer would recognize that this was not
in fact the case, viewer might still laugh and the plaintiff would suffer
from the ridiculous association); see also Spence v. Flynt, 816 P.2d 771
(Wyo. 1991) (labeling plaintiff as “asshole of the month” and offering other
epithets was actionable). Courts also held that a privilege to publish would
be destroyed if the defendant’s purpose was to ridicule the plaintiff. Hogan
v. New York Times Co., 313 F.2d 354 (2d Cir. 1963) (misstatements of fact;
reference to police as “Keystone Cops” showed abuse of privilege because of
intent to ridicule and thus abuse of privilege).
544 § 37.15.
545 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). Hepps, like
most other important decisions, involved a media publication.
546 Robert D. Sack on Defamation: Libel, Slander & Related
Problems. § 3:3.2 (updated on Westlaw).
547 Flamm v. American Ass’n of Univ. Women, 201 F.3d 144, 149 (2d
Cir. 2000).
548 Milkovich v. Lorain Journal, 497 U.S. 1, 110 S.Ct. 2695, 111
L.Ed.2d 1 (1990). The provably false standard does not ask whether there
is sufficient evidence in the particular case to prove the statement false,
but whether the nature of the statement is such that one could falsify or
verify it by examining facts.
549 E.g., Madison v. Frazier, 539 F.3d 646, 653 (7th Cir. 2008); McKee
v. Laurion, 825 N.W.2d 725 (Minn. 2013).
550 Restatement (Second) of Torts § 566 (1977) (providing that opinion
statements are not actionable unless they imply defamatory factual
statements).
551 For example, in Harvest House Publishers v. Local Church, 190
S.W.3d 204 (Tex. App. 2006), the publication may have indirectly asserted
that the plaintiff church held doctrines incompatible with Christianity.
The court rejected liability. “The issue of whether a group’s doctrines are
compatible with Christianity depends upon the religious convictions of the
speaker.” On a related claim, the court observed: “Because the statement
concerns the speaker’s religious beliefs, which cannot be proved true or
false, an allegation that one is an idolator and accepts occult powers is not
actionable.”
552 Robert D. Sack on Defamation: Libel, Slander & Related
Problems. § 3:3.2 (updated on Westlaw).
553 Robert D. Sack, Protection of Opinion under the First
Amendment: Reflections on Alfred Hill, “Defamation and Privacy under
the First Amendment,” 100 Colum. L. Rev. 294, 326–27 (2000).
2011 & Supp.).
555 Id. § 570.
556 Id. § 571. In Shepard v. Schurz Communications, Inc., 847 N.E.2d
219 (Ind. 2006), the publication was: “Cliff Shepard is a liar. His statement
is false.” Although “liar” was the very charge the Milkovich Court held to
be provably false, the Shepard court exculpated the publisher in this
language: “The Times made a prima facie showing that it acted without
malice and merely reported statements that were essentially rhetorical
hyperbole by an opposing attorney, statements incapable of being proved
true or false by the Times.” Although the Shepard court described the
“liar” language as rhetorical hyperbole—a species of non-factual statement
—its central concern may have rested elsewhere, with the idea that a
newspaper should be permitted to quote newsworthy statements. On this,
see § 37.11.
2011 & Supp.).
558 See id. § 573.
559 See Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind.
2010) (damages presumed in cases of defamation per se); Kiesau v. Bantz,
686 N.W.2d 164 (Iowa 2004).
560 In Republic Tobacco Co. v. North Atlantic Trading Co., Inc., 381
F.3d 717 (7th Cir. 2004), the jury awarded $8.4 million in presumed
damages based on a competitor’s defamatory letters to dealers. On appeal,
this was reduced to $1 million (along with punitive damages) on the
ground that no more could be fairly “presumed” in the absence of general
publication or evidence of some economic loss. In Bongiovi v. Sullivan, 138
P.3d 433 (Nev. 2006), one plastic surgeon sued another for slander per se
for falsely stating that the plaintiff had negligently caused the death of a
patient. The jury’s award of $250,000 compensatory damages was affirmed
as a reasonable range for presumed damages given the emotional harm to
the plaintiff and perhaps because of the seriousness of the defamation.
561 It is not dead yet, however. See W.J.A. v. D.A., 210 N.J. 229, 43
A.3d 1148, 40 Media L. Rep. (BNA) 1830 (2012) (false accusations of child
molestation; where statements involve only matters of private concern and
the plaintiff is a private person, doctrine of presumed damages is retained,
allowing recovery of nominal damages “thus vindicating his good name”).
562 Arthaud v. Mutual of Omaha Ins. Co., 170 F.3d 860 (8th Cir.
1999); Synygy, Inc. v. Scott-Levin, Inc., 51 F.Supp.2d 570 (E.D.Pa. 1999),
aff’d, 229 F.3d 1139 (3d Cir. 2000) (table); United Ins. Co. of Am. v.
Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998); Walker v. Grand Cent.
Sanitation, Inc., 430 Pa. Super. 236, 634 A.2d 237 (1993); see David
Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary L. Rev.
747, 758 (1984).
563 418 U.S. 323, 339, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974).
564 Independent of these rules, the Constitution bars the claim
altogether if it is brought by a public official or public figure without proof
of knowing or reckless falsehood. This rule does not depend upon damages
proof. See § 37.15.
565 Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012
41 L.Ed.2d 789 (1974).
566 Gertz, id., implied so in saying “we hold that the States may not
permit recovery of presumed or punitive damages, at least when liability is
not based on a showing of knowledge of falsity or reckless disregard for the
truth.” It is generally assumed that recovery of presumed damages, which
would be permitted to a public figure upon proof of knowing or reckless
falsehood, would a fortiori be permitted to a private person in the Gertz
category. Some cases have expressly said so. Mitchell v. Griffin Television,
L.L. C., 60 P.3d 1058 (Okla. Civ. App. 2002) (“Upon a showing of actual
malice, the plaintiff may recover punitive damages, and, where otherwise
allowed, presumed damages”). The rule that punitive damages, forbidden
by Gertz when only negligence is proved by a private person, is exactly
analogous, and in that case, proof of knowing or reckless falsehood is
constitutionally sufficient to permit punitive damages if state law would
also permit such damages. E.g., Cochran v. Piedmont Publ’g Co. Inc., 62
N.C. App. 548, 302 S.E.2d 903 (1983).
567 Lara v. Thomas, 512 N.W.2d 777 (Iowa 1994) (“natural and
probable consequences”). In Longbehn v. Schoenrock, 727 N.W.2d 153
(Minn. Ct. App. 2007), the court recognized the general rule permitting
proximately caused pecuniary damages, but held that the plaintiff’s
pecuniary damages were not caused by the defendant’s publication; many
people in the community communicated the defamation and they did not
derive it from the defendant. In addition, the defamation was not a
substantial factor in causing the plaintiff’s pecuniary harm from loss of
employment.
568 E.g., Sigal Const. Corp. v. Stanbury, 586 A.2d 1204 (D.C. 1991);
Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d 667 (Mass. 2005)
(successful research physician with a “bright future” was forced to accept
purely clinical employment in another state after the libel).
569 Prozeralik v. Capital Cities Commc’ns, 188 A.D.2d 178, 593
N.Y.S.2d 662 (1992), rev’d on other grounds, 82 N.Y.2d 466, 626 N.E.2d 34,
605 N.Y.S.2d 218 (1993); Southern Baptist Hosp. of Fla., Inc. v. Welker,
908 So. 2d 317 (Fla. 2005) (holding that rules limiting right to recovery for
stand-alone emotional distress had no application to limit distress
damages resulting from an established tort such as libel).
570 Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108 (Iowa 1984).
571 Den Norske Ameriekalinje Actiesselskabet v. Sun Printing &
Publ’g Ass’n, 226 N.Y. 1, 122 N.E. 463 (1919).
572 Bolduc v. Bailey, 586 F.Supp. 896 (D. Colo. 1984).
573 Hudnall v. Selner, 800 F.2d 377 (4th Cir. 1988); Garrison v. Sun
Printing & Publ’g Ass’n, 207 N.Y. 1, 100 N.E. 430 (1912).
574 See Schoen v. Washington Post, 246 F.2d 670 (D.C. Cir. 1957).
575 Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (“the First
Amendment requires appellate review of amounts awarded for non-
economic damages in defamation cases to ensure that any recovery only
compensates the plaintiff for actual injuries and is not a disguised
disapproval of the defendant”). See also, rejecting multi-million dollar
damage verdicts, Burbage v. Burbage, 47 S.W.3d 249 (Tex. 2014); Waste
Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142
(Tex. 2014).
576 E.g., See Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th
Cir. 1997); In re Peck, 295 B.R. 353 (B.A.P. 9th Cir. 2003).
577 Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999) (in state
requiring actual damages, testimony that after wife had been defamed,
husband was angry with her, slept in a different room, and would not
touch wife sufficed to show reputational loss); Murphy v. Boston Herald,
Inc., 449 Mass. 42, 865 N.E.2d 746 (2007) (no error to admit evidence of
hate mail received by plaintiff and reactions to the plaintiff posted in an
internet chat room after defamation was published); Poleski v. Polish Am.
Publ’g Co., 254 Mich. 15, 235 N.W. 841 (1931) (testimony showing how the
plaintiff’s Polish-ancestry constituency reacted to defamation associating
plaintiff with the Klan). However, in Macy v. New York World-Telegram
Corp., 2 N.Y.2d 416, 141 N.E.2d 566, 161 N.Y.S.2d 55 (1957), the court
disapproved of some testimony about reactions of third persons to the
defendant following publication of the defamation, saying that the “better
practice would be to call as witnesses for plaintiff subject to cross-
examination, the persons who were supposed to have spoken or acted
adversely to plaintiff and to demonstrate, if such demonstration be
possible, a connection to the libel,” and in a holding uncertain scope said
that some of the testimony in the case was inadmissible.
578 E.g., Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 745, 54
A.L.R. 4th 685 (1985). Some courts have refused to admit such evidence.
E.g., Clay v. Lagiss, 143 Cal. App. 2d 441, 448, 299 P.2d 1025, 1030 (1956).
579 See 2 Dan Dobbs, Law of Remedies § 7.2(7) (2d ed. 1993).
580 Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99
L.Ed.2d 41 (1988).
581 Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154
(1976).
582 David Anderson, Reputation, Compensation, and Proof, 25 Wm. &
Mary L. Rev. 747, 758 (1984); see also 2 Dan Dobbs, Law of Remedies §
7.2(6) (2d ed. 1993).
583 See 2 Dan Dobbs, Law of Remedies § 7.2(6) (2d ed. 1993).
584 See Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660
S.W.2d 933 (1983); Schlegel v. Ottumwa Courier, 585 N.W.2d 217 (Iowa
1998); Gobin v. Globe Publ’g Co., 232 Kan. 1, 649 P.2d 1239 (1982);
Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809 (Mo. 2003) (error to
permit jury to award damages in libel cases on proof of emotional harm
without proof of reputational harm). However, claims of emotional harm
arising from publication but not from reputational harm have been
permitted. See State v. Carpenter, 171 P.3d 41 (Alaska 2007).
585 See § 37.15.
L.Ed.2d 789 (1974).
587 See Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 110 S.Ct.
2695, 2704 (1990) (states cannot “permit recovery of presumed or punitive
damages on less than a showing of New York Times malice”); Cochran v.
Piedmont Publ’g Co. Inc., 62 N.C. App. 548, 302 S.E.2d 903 (1983);
Mitchell v. Griffin Television, L.L. C., 60 P.3d 1058, 1061 (Okla. Civ. App.
2002) (“Upon a showing of actual malice, the plaintiff may recover punitive
damages, and, where otherwise allowed, presumed damages”).
588 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).
2011 & Supp.). Lawnwood Med. Ctr., Inc. v. Sadow, 43 So.3d 710 (Fla.
Dist. Ct. App. 2010), holds that in defamation cases where compensatory
damages can be presumed, that is enough basis for punitive damages.
590 Prozeralik v. Capital Cities Commc’ns, Inc., 82 N.Y.2d 466, 626
N.E.2d 34, 605 N.Y.S.2d 218 (1993).
591 § 485.
592 Longbehn v. Schoenrock, 2010 WL 3000283 (Minn. Ct. App. 2010)
(unreported) (aptly adducing authority that makes the same point by
saying that the plaintiff’s “bad character” “may be shown in mitigation of
damages by presenting evidence of the plaintiff’s general reputation in
that respect”).
593 Forms and use of the libel-proof doctrine are developed in 3 Dobbs,
Bublick & Hayden, The Law of Torts § 575 (2d. ed. 2011 & Supp.).
594 Hart v. E.P. Dutton & Co., 197 Misc. 274, 93 N.Y.S.2d 871 (1949),
aff’d, 277 A.D. 935, 98 N.Y.S.2d 773 (1949); cf. Simon & Schuster, Inc. v.
Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 112 S.Ct. 501,
116 L.Ed.2d 476 (1991) (statutes allocating profits criminal makes from
writing about his crime toward payment of victims unconstitutional). In
Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763 (1980), however, a
former CIA agent, Snepp, wrote a book about his experiences and it was
published without prior permission by the CIA. Although it revealed no
classified information, the government was allowed to take all of the
royalties earned—restitution for fiduciary breach.
595 E.g., Kramer v. Thompson, 947 F.2d 666 (3d Cir. 1991) (even
though jury has first found statements libelous and awarded damages, no
injunction and no compulsory retraction); High Country Fashions, Inc. v.
Marlenna Fashions, Inc., 257 Ga. 267, 357 S.E.2d 576, 577 (1987). See
generally 2 Dan B. Dobbs, Law of Remedies § 7.2(14) (2d ed. 1993).
596 See Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978);
Robert A. Leflar, Legal Remedies for Defamation, 6 Ark. L. Rev. 423
(1952).
597 See In re Smith, 63 Misc. 2d 198, 310 N.Y.S.2d 617 (1970)
(physical obliteration of the names from all records to prevent employer’s
knowledge that juveniles had been arrested); See 3 Dobbs, Hayden &
598 See Near v. State of Minn., 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed.
1357 (1931). The exact scope of the rule against prior restraints is debated.
599 Balboa Island Vill. Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 156 P.3d
339, 57 Cal. Rptr. 3d 320 (2007) (noting that if the enjoined statements
became justified later on, the plaintiff could seek modification of the
injunction).
600 Id.; see also Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014), cert.
denied, 135 S.Ct. 1164 (2015).
601 Webb v. Call Publ’g Co., 173 Wis. 45, 180 N.W. 263 (1920). In
Whitcomb v. Hearst Corp., 329 Mass. 193, 107 N.E.2d 295 (1952), the
court approved an instruction that told the jury it could find the retraction
reduced damages to a nominal level, did not reduce them at all, or reduced
them to some extent in between.
602 Kehoe v. New York Tribune, 229 A.D. 220, 241 N.Y.S. 676 (1930)
(admissible to reduce punitive but not compensatory damages). The
defendant’s refusal to retract after being fully informed of the facts is
evidence of common law malice, e.g., Myers v. Pickering Firm, Inc., 959
S.W.2d 152 (Tenn. Ct. App. 1997), but not necessarily evidence of knowing
or reckless falsehood. New York Times Co. v. Sullivan, 376 U.S. 254, 84
S.Ct. 710, 11 L.Ed.2d 686 (1964). A statute that merely required a request
for retraction before punitive damages could be claimed was held to apply
to internet publications in Mathis v. Cannon, 573 S.E.2d 376 (Ga. 2002).
603 See Robert D. Sack & Sandra S. Baron, Libel, Slander and Related
Problems, Appendix 2 (2d ed. 1994) (setting out all of the retraction
statutes).
604 See id. § 9.2. Arizona held its statute unconstitutional in Boswell
v. Phoenix Newspapers, Inc., 152 Ariz. 9, 730 P.2d 186 (1986).
605 Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41
L.Ed.2d 730 (1974). But cf. Pruneyard Shopping Ctr. v. Robins, 447 U.S.
74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (state could compel privately
owned shopping center to permit people to distribute leaflets on its
property).
1005
Chapter 38
PRIVACY
Analysis
§ 38.5 False Light
__________

Categories of privacy claims. Sometimes it is said that the right
of privacy is the right to be let alone, but the phrase does not
reflect the varieties of privacy invasion.1 Scholars eventually
posited four forms of privacy invasion (or four different torts). Dean
Prosser and the Restatement posited that privacy is invaded by (a)
an unreasonable intrusion upon the plaintiff’s seclusion, (b) the
appropriation of the plaintiff’s name or likeness, (c) unreasonably
giving publicity to the plaintiff’s private life, and (d) publicizing the
plaintiff in a false light.2 This set of four categories, with its
frequent overlaps,3 is the one that prevails in the common law
today, for better or for worse.4
Concerns. Within the current common law framework, the right
of privacy leaves a good many problems in its wake. So far as
privacy is said to be violated by publication or communication, the
free speech considerations that limit liability for defamation may
have similar application when the plaintiff switches to the privacy
theory.5 In addition, the anti-SLAPP statutes, ostensibly protecting
the right to petition government, may be invoked in privacy
claims.6
Gist of the tort. The early cases establishing privacy as a
separate tort were based upon the defendant’s use of the plaintiff’s
name or likeness in commercial advertising.7 It later became
apparent that appropriation of the plaintiff’s identity for other
purposes
1006
could be actionable,8 subject to free speech constraints. Since

the gist of the tort is the unconsented to9 appropriation of the
plaintiff’s identity or reputation, or some substantial aspect of it,10
for the defendant’s own use or benefit, no element of falsity is
required.
Dignitary tort vs. property right. The earliest plaintiffs were
mostly private individuals, not public figures. The emphasis was
personal and dignitary. The individual had liberty interests at
stake; she could associate with others or not according to her
personality and preferences; she might be humiliated if people
thought she sold her picture for advertising. Later cases adapted
this form of privacy invasion to the case of public figures who do
not seek privacy but on the contrary seek out opportunities for
public exposure and who wish to use their name, likeness, voice or
other aspects of “identity” as a property to be sold.11 In this form,
the claim is sometimes strangely called a right of publicity.12 The
recent appropriation cases of note have been of this kind and are
closer to the fields of intellectual property, unfair competition, and
trademarks than to the purely dignitary torts.13 The
characterization of the tort interest as intellectual property may
avoid limitations on recovery imposed on some of the other privacy
torts.14
Plaintiffs with and without commercially valuable identities.
Consistent with the property characterization, some courts have
apparently rejected the earlier emphasis upon the plaintiff’s
personal rights and liberties that gave rise to this cause of action.
These courts refuse to allow recovery for appropriation of the
plaintiff’s name or likeness unless the plaintiff was a famous
person who could sell her identity for endorsements or the like.15
However, other courts have taken care to recognize that while
some cases of appropriation might involve rights of public figures,
others would be harmful even to
1007
utterly private persons. The latter, the court said, could have a
damages claim for distress even if their name or identity had no
commercial value.16
Intent and appropriation. The Restatement Second is not
specific about the intent required to support the appropriation tort.
It requires “appropriation,” which perhaps implies that intent to
utilize the plaintiff’s identity is required.17 But the Restatement
also characterizes the plaintiff’s right as one of property, perhaps
as if to say that even an innocent taking of that property right in
identity is actionable. Some authority might be read to support
liability even if the defendant does not intend to appropriate the
plaintiff’s identity or reap the benefits of her fame.18 However, the
defendant does not appropriate the plaintiff’s identity by incidental
mention.19 A public figure may be mentioned in a work of fiction if
her identity is not used to tout a product or imply her sponsorship
and if the work is clearly not a factual report about the public
figure. So fictional work involving Notre Dame and its mention of
its president does not offend the rights of either the school or the
individual, and even more clearly so if the work is one of criticism
or satire.20
Newsworthiness. In any event, reporting of matters that are
newsworthy or of public concern is not an appropriation for which
liability is imposed, even though the reported matter increases
circulation or profits of the publisher.21 In privacy law,
newsworthiness is a broad concept that includes much more than
hot news,22 so a magazine article discussing a public figure or a
newsworthy or educational topic is free to use names and
photographs as much as a newspaper.23 In the same way, nothing
limits the right to publish a biography of a public figure so long as
it is not false.24 However, not every matter that might interest
readers qualifies as a newsworthy item subject to protection from
suit.25
1008
First Amendment. Although the First Amendment’s protection

of free speech requires proof of falsity as a prerequisite to recovery
in defamation cases and in some other kinds of privacy cases,26 no
such requirement has been imposed in the commercial
appropriation cases. Perhaps that is partly because commercial
speech is sometimes given less First Amendment protection and
partly because the plaintiff’s right in her own identity is treated as
a species of property.27 It is especially easy to think of the
plaintiff’s right as one analogous to intellectual property when the
plaintiff has created a public personality, style, or characteristic
performance. In that kind of case, at least, the Supreme Court has
held that states may impose liability when the defendant
appropriates the plaintiff’s entire public performance.28 Although
falsity is probably never required to establish a claim, it appears
unlikely that an accurate report on a newsworthy matter or one of
public concern could be actionable without a very substantial
appropriation indeed. Presumably, noncommercial speech would
receive full protection from privacy law and the Constitution, so
that, for example, truthful publications of public concern could not
by themselves count as an invasion of privacy.29 Whether speech is
primarily commercial can be a difficult line to draw.30
The outlines of the tort. Intrusive invasion of privacy is a rule
desert; such rules as there are turn out to be shimmering mirages.
The Restatement’s rule is that an intentional intrusion upon the
solitude or seclusion of another or upon her private affairs is
subject to liability if the intrusion would be highly offensive to a
reasonable person.31 However, the Restatement provides little
guidance as to what counts as protected seclusion or private affairs
or what conduct that is not already some other tort would offend a
reasonable person. Many times the emphasis in the intrusion tort
is on an intrusive act. The cases clearly allow recovery where the
defendant commits a virtual trespass, entering the plaintiff’s
possession or domain by electronic means such as tapping
telephones or using other listening devices,32 or by hacking into the
plaintiff’s email account,33 or by secretly videotaping a person
changing clothes in a dressing room,34 or even by peeping into the
plaintiff’s home through cracks in the blinds.35 At
1009
other times, the emphasis is on the plaintiff’s interest in

controlling information about herself, whether the defendant’s act
in obtaining or perpetuating data about the plaintiff is intrusive by
itself or not. For instance, controlling use of credit card or social
security numbers would fall into this category.36
Reasonable expectation of privacy. It is clear that no action for
intrusive invasion of privacy will lie unless the plaintiff has a
reasonable37 and actual38 expectation of privacy in the place, the
materials involved, or the subject matter. Except as her conduct or
consent might show otherwise, the plaintiff has expectations of
privacy in her home39 and even in public places that provide
privacy protection like dressing rooms or restroom stalls.40 An
employee might even have some limited expectation of privacy in
the workplace,41 but here perhaps only with respect to personal as
opposed to business information.42 On the public street, the
plaintiff might have an expectation of privacy as to a whispered
conversation with a companion, but has no reasonable expectation
of privacy as to her presence.43
Data privacy. Privacy expectations may also arise with respect
to certain data, such as the plaintiff’s social security number,44
although an investigation of public records or information already
known to individuals and not held in confidence may not in itself
be an intrusive invasion.45 Nor is it an invasion of privacy to read
the plaintiff’s private computer files if the plaintiff has no
expectation of privacy in those files, as might be the case if, by
custom in the business or by his own consent, he expects the
employer defendant to monitor his computer.46 However, even if
individual records in a data base or file system are separately
available on a one-at-a-time basis, privacy rights in aggregated
data about the plaintiff might be legally protected.47 Statutes
provide an
1010
independent ground for relief for interception of electronic

submissions and disclosure of personal information in several
instances.48
Limited expectations of privacy. Plaintiff’s reasonable
expectation need not be an expectation of complete privacy.
Something less may be sufficient for the tort, so long as the limited
privacy expected excludes the kind of intrusion launched by the
defendant. Surreptitious videotaping at work49 or home50 is a
prime example. Consequently, even if the plaintiff shares a marital
bedroom with a spouse so that complete privacy is not expected,
when the plaintiff is alone in the bedroom there is still a
reasonable expectation that activities in the room will not be
recorded by a hidden camera.51 Similarly, the California Supreme
Court has held that if A covertly records his own conversation with
B that is also heard by others, the recording itself can violate B’s
limited expectation of privacy and may be actionable. The theory is
that although B can have no expectation of confidentiality, she has
an expectation that it will not be recorded.52 However, courts have
reached different conclusions.53
Intentional and highly offensive intrusion. Given a reasonable
expectation of privacy, the intentional and highly offensive
intrusion that defeats the expectation is itself tortious. If that
intrusion is carried out under color of law, it may violate the
standards of the Fourth Amendment or Due Process clause and be
actionable as a civil rights tort under § 1983.54 Intrusions that
would not be highly offensive to a reasonable person are not
actionable under the tort.55 One factor that may be relevant to
evaluating offensiveness to a reasonable person is the value of the
social interest in disclosure that rivals the privacy interest.56 In
addition to a highly offensive intrusion, the Restatement’s version
of this tort requires intent, presumably intent to commit the act
1011
that the court considers an intrusion. A knowing and reckless

falsehood known to lead to the intrusion may be adequate.57 Some
courts, however, may treat negligent intrusion as actionable.58
Overlap with other torts: trespass and battery. Courts say that
intrusive invasion of privacy is independent of any other tort such
as trespass, but in fact a number of privacy cases could be resolved
under better-defined rules of trespass, battery, Fourth Amendment
violation, or the like. No doubt a defendant who enters the
plaintiff’s home on the basis of a “consent” procured by deceit
should be liable on a close analogy to trespass.59 In 1881, the
Michigan court held that a doctor was liable for bringing an
untrained man into the room where the plaintiff was delivering a
child.60 The plaintiff’s “consent” was not valid because she had
been under the mistaken belief that the man was a doctor or
medical student, so recovery could have been justified on a trespass
theory as well as any other. A well-known Missouri case is only a
little different because the plaintiff was in a hospital room rather
than her home; journalists invaded the room over her express
objection, photographed her in bed against her will, and published
the photograph with a story about her disease. This was said to be
an invasion of privacy, but its substantial core is only a technical
variation on trespass in which the plaintiff lacked a present
possessory interest in the hospital room.61 Courts have also said
that the right to reject medical treatment or the like is grounded in
a privacy right when they could as well have said that forced
medical treatment is a battery.62
Overlap with intentional infliction of emotional distress. Some
forms of the intrusive privacy action appear to be especially like
the claim for intentional infliction of emotional distress. In a
Washington case,63 individual county employees retained for their
personal use autopsy photos of deceased persons. Relatives of the
deceased were allowed to pursue an invasion of privacy claim
although their claim for intentional infliction of emotional distress
failed because they were not present when the defendants took or
used the photos.64 Likewise, harassment—repeated and unwanted
attentions—may be characterized as an intrusive invasion of
privacy rather than as an intentional infliction of emotional
distress. A bill collector hounds a debtor,65 an employer repeatedly
broaches
1012
sexual questions to an employee,66 a stalker repeatedly follows

or threatens the object of his obsession,67 or telemarketers
repeatedly call the homes of victims68 or send unwanted faxes;69
all are subject to liability for invasion of privacy.
Employee privacy rights. Employee rights of privacy vis-a-vis
employers has developed into something of a specialty itself.70 A
federal statute now prohibits employers from administering,
demanding, or even suggesting a polygraph test to employees, and
creates a federal cause of action against employers who violate the
statute.71 Drug testing by employers as a condition of employment
or by schools and private associations as a condition to
participation in sports or other activities,72 is a different matter. So
far as the employer is a governmental entity, the Fourth
Amendment forbids unreasonable searches (including drug
testing). A search is reasonable when there is reasonable ground
for suspicion of wrongdoing and when compelling governmental
interests and special needs outweigh privacy concerns. Compelling
interests and special needs have been found in a number of cases,73
but not all.74 Private employers are generally constitutionally free
to enforce rules requiring employee searches and to discharge
employees who do not comply. Even so, states are free to hold that
privacy rights trump the employer’s right to discharge an
employee. Some states have thus held that private employers may
not discharge an employee for refusing to accept a suspicionless
drug test unless safety issues made such testing reasonable.75
Other courts and statutes, however, have left little or no room for
claims based upon private employer drug testing.76
Intrusion and speech. Because the basic nature of the tort is
intrusion, liability does not turn upon publication of any kind.77
For that reason, liability for intrusion alone would not ordinarily
raise free speech considerations that may concern other forms of
privacy invasion. In particular, an intrusion upon privacy is not
justified by newsworthiness of material that may be gained.78
1013

Actions based on truthful speech. Although truth was a complete
defense in latter-day libel actions and under the constitutional
decisions the plaintiff is often required to prove falsehood of
defamatory statements, these restrictions may be ignored under
the Restatement’s private facts privacy claim. In part, this is due
to the fact that the Restatement confines liability to private
matters that are not the subject of legitimate public concern.79
Elements. As the Restatement states the rule, the “private
facts” category of privacy invasion occurs when the defendant gives
publicity to a private fact about the plaintiff when disclosure would
be highly offensive to a reasonable person and is not of legitimate
public concern.80 The tort “is illustrated by the unauthorized
publicizing of a person’s medical condition, personal finances, or
sexual proclivities or activities.”81 Which disclosures would be
highly offensive to a reasonable person is a matter at times left to a
jury82 and at times resolved as a matter of law.83
Publicity to private matters. The facts published about the
plaintiff must be “private,” which means that they must not be a
matter of public record84 or generally known.85 When proper or
privileged disclosure about A entails publication of private facts
about B, courts are reluctant to entertain the claims.86 At times,
however, family members have protected privacy interests.87 The
defendant must give “publicity” to the private facts, which means
that publication must be to the public at large or to a
1014
substantial group of people,88 though occasionally courts use a

different standard for web pages89 and could do so for other
disclosures.90 The publicity rule requires some qualification. First,
a defendant who owes a duty of confidentiality is liable for breach
of that duty by publishing to a small group or even to one person,
as in the case of a physician who reveals his patient’s medical
history.91 However, the defendant must intend to reveal that
information,92 and the defendant may be privileged to reveal
confidential information to a person who has an interest of his own
to protect.93 Second, some authority allows recovery for
communication to a small group, “if those people have a special
relationship with the plaintiff that makes the disclosure as
devastating as disclosure to the public at large.”94
Free speech and legitimate public concern. Because this cause of
action always entails communication to others, it runs squarely
into the issue of free speech and the First Amendment. The
Restatement’s version of the rule attempts to stay within the limits
of the First Amendment by restricting liability to publications that
are not newsworthy or of legitimate public concern, since truthful
communications on matters of public concern, and matters
involving public figures appear to be constitutionally protected.95
One thinker has gone so far as to say that the “shocking character
of the disclosure” is a sufficiently good basis for liability, even in
the light of First Amendment
1015
considerations.96 Disclosure of private names and addresses in

a way that constitutes a threat to life, as with abortion providers,
may pass constitutional muster on the ground that threats are not
protected speech.97
Wrongfully obtained information. Some cases that may be
thought to support the Restatement’s broad liability are actually
much narrower. Those cases impose liability for revelation of
private facts when the defendant obtained the private information
by wrongful means such as trespass, deceit, betrayal, or breach of
confidence.98 Such cases do not seem to raise First Amendment or
common law free speech issues because the information itself is
obtained by wrongdoing.99 A number of cases imposing liability can
be justified on the ground that the published information was
wrongfully obtained. In Dietemann v. Time, Inc.,100 journalists got
into the plaintiff’s den by deceit and secretly photographed and
recorded events, then published. The tort was the deceitful
intrusion, but the proximate damages included harm resulting
from publication. In Barber v. Time, Inc.,101 journalists forced their
way into the plaintiff’s hospital room over her protests and then by
trickery photographed her and published the photograph. In the
famous Sidis case,102 a former child prodigy turned into an
obsessive recluse who valued privacy above all was the subject of a
New Yorker profile that subjected him to merciless treatment. The
court went off on a newsworthiness issue, but if the interviewer
had gained entry into Sidis’ room and mind by deceit and breach of
confidence, liability of the interviewer would have been entirely
appropriate. Such cases need not turn on such subjective criteria as
the shocking nature of the disclosure or the private quality of the
facts. Liability would be appropriate because the information was
gained by a wrong to the plaintiff. However, when the information
is obtained illegally by a third person, then published by the
defendant who knows of the illegal act but who is in no way
responsible for it, the defendant is constitutionally protected from
liability, provided the information is of public concern.103
Newsworthiness: reporting on issues of public concern. Courts
recognize that newsworthy events are matters of public concern
and that the defendant may publicize those events even when they
relate to private persons who are involuntarily involved in them.104
For example, a television broadcaster may provide a videotaped
report of an
1016
auto accident showing the victims105 or even a frantic woman

covered only with a dishtowel escaping from her husband’s
attack.106 The freedom to report truthfully on newsworthy events
or matters of public concern does not depend upon the plaintiff’s
preexisting public figure status, and in that respect it differs from
the false defamatory report. Newsworthiness, moreover, is a
shorthand expression rather than a precise description; the term is
defined broadly to include many matters of public interest that are
by no means news, including educational and entertaining
materials, and the quotidian details of life involving births, deaths,
personal heroism and tragedy.107
An example. The newsworthiness protection does not
necessarily provide clear rights for speakers and publishers or
clear protections for privacy. Perhaps it is not even capable of
definition.108 For example, Oliver Sipple, otherwise a private
citizen, obstructed an effort to shoot former President Gerald Ford
and became famous for it. Two days later, a columnist publicly
revealed that Sipple was homosexual. Sipple suffered various
humiliations, some at the hands of his own family, but his privacy
claim was rejected, in part because his sexual preference was
regarded as newsworthy. “Newsworthy” turned out to be a matter
of the publisher’s subjective motive. The court thought that the
publisher’s purpose to dispel false ideas about gays by using
Sipple’s life as an example showed that the publisher had no
motive based upon sensational prying, and that, for the court,
seemed to make the story newsworthy as a matter of law.109
What is newsworthy. However, newsworthiness has not been
read to be all-encompassing. When information is not of public
concern, the fact that it was lawfully obtained does not necessarily
shield the defendant from liability. A publication that associates
photographs of unnamed little league members with victims of a
coach’s molestation, may be actionable under California law as a
wrongful revelation of a private fact.110 Revelation that a student
body president involved in a dispute with a college was transsexual
was thought not to be newsworthy as a matter of law,111 and some
argue that private sexual matters are seldom or never
newsworthy.112 A California court also held that dissemination of
photos showing a decapitated 18-year-old was not a matter of
1017
public interest where “a reasonable member of the public, with

decent standards, would say that he has no concern” beyond a
morbid or sensational interest.113
Balancing privacy and speech. Both speech and privacy
represent fundamental values sometimes given constitutional
protection. Whether newsworthiness or public concern is a concept
capable of sufficient development to balance the two remains to be
seen.
Public information. Other cases, no longer valid, went far, far
beyond liability for publishing wrongfully obtained information or
information not of legitimate public interest. The most notable and
extreme cases once held the defendant liable for publishing
truthful information gleaned from records open to the public. In
Melvin v. Reid,114 the defendants made a movie in which true
incidents of the plaintiff’s life and her involvement in a murder
trial were shown and her real name was used so that she could be
identified. Although the court conceded that the defendants could
use the incidents from the public record, it thought it was
“unnecessary” and uncharitable to give the plaintiff’s name. On
this ground it held that the plaintiff stated a cause of action. Cases
like this raise serious constitutional questions first because they
decide what the public has a right to know—in this particular case,
about crimes and criminals—and second because they penalize
publication of the truth. California has now held that at least when
the published information is rightfully obtained from public
records, federal constitutional rules prohibit recovery.115
Constitutional rules about reports on public information. The
Supreme Court of the United States has considered the First
Amendment’s impact in a series of cases in which the media
lawfully obtained information about the plaintiff from public
records and then publicized it. In each of the cases so far, the
media’s right to publish the information was upheld. Some of the
claims for the plaintiff are especially sympathetic. In two, the
plaintiffs were rape victims. Revealing names of rape victims will
often compound the grievous injury; and it may at times also
endanger the victims further. In the first case, Cox Broadcasting
Corp. v. Cohn,116 the Court held that the state could not prohibit
publication of a rape victim’s name when the name was obtained
by the media from an indictment available for inspection. Part of
the reason was that the press served as a kind of agent for
individual members of the public who would have a right to inspect
public records for themselves. Public scrutiny was particularly
important as a means of helping to guarantee fair trials.
The Court later went beyond trial records. It has said that
media may publish the names of juveniles charged with a crime
when the names are obtained by listening to police band radio and
may publish rape victims’ names obtained from police reports (as
distinguished from trial records). When “a newspaper lawfully
obtains truthful information about a matter of public significance
then state officials may not
1018
constitutionally punish publication of the information, absent a

need to further a state interest of the highest order.”117
Restricting access to public information. These Supreme Court
decisions recognize two potential conditions in which a truthful
report of public records might be actionable. First, if there is a
state need of the highest order, the state might forbid publication
of records that are otherwise open to public access. Second, the
state might restrict public access to records.118 The first instance is
hard to imagine in the light of the second,119 and the second raises
a new realm of concern. If government can be carried out secretly
by invoking privacy rights of individuals, government will not be
open or democratic. Public records are addressed to a greater
extent in § 428A.
Scope of the tort. All in all, the privacy invasion tort most closely
related to the Brandeis and Warren proposal has presented serious
problems. Neither adjudications nor statutory solutions have
proved entirely satisfactory. Not surprisingly, commentators have
argued against this form of the privacy right.120 New York, with a
statutory right of privacy limited to appropriation cases, rejects the
private facts version of privacy invasion.121 Oregon has held that
publication about the plaintiff is not actionable “unless the manner
or purpose of defendant’s conduct is wrongful in some respect apart
from causing the plaintiff’s hurt feelings.”122 A plurality decision in
Indiana agreed, noting that emotional injuries from disclosure
were not worse than other emotional injuries, so that the plaintiff
should recover, if at all, for intentional infliction of emotional
distress,123 although later Indiana cases suggest that the state
may yet recognize the tort.124 North Carolina flatly rejected the
private facts tort with the observation that at best it was
constitutionally suspect.125 Such decisions leave potential for
liability when the defendant is a wrongdoer in some respect other
than in publishing the truth, as where he breaches confidence or
obtains information wrongfully, and where he intentionally inflicts
severe emotional distress. Otherwise, the intrusion tort rather
than the publicity tort may come closer to the core privacy value.
1019
§ 38.5 False Light

Elements. The fourth privacy tort recognized by the
Restatement and conventional wisdom is the false light tort. The
tort is established only if the plaintiff proves that (a) the defendant
publicized a matter about the plaintiff to a substantial group of
persons or to the public; (b) the matter put the plaintiff in a false
light; (c) the false light would be highly offensive to a reasonable
person; and (d) the defendant knew of the falsity or acted in
reckless disregard of whether the matter was false or not.126 The
Restatement contemplates “publicity,” rather than publication of a
lesser scope, such as communication to a few people.127 The cases
mostly agree.128 The false light claim, like the claim for
defamation, commonly does not survive the death of the victim.129
False light and defamation. The tort theoretically goes beyond
defamation because the objectionable false light is not necessarily a
defamatory one, only false and offensive. For example, a false light
claim was established when a newspaper feature article made false
statements about the plaintiff’s poverty and her stoic attitude
following the death of her husband in a disaster.130 Likewise, a
false light claim was made out when a television program, by
splicing shots, falsely depicted the plaintiff as a hunter who shot
wild geese on the ground rather than in flight.131 A claim was also
stated when a magazine cover falsely implied that the plaintiff had
posed nude for the magazine.132 Publication of a photo of a little
league baseball team, whose coach had molested some members of
the team, was enough to count as false light in a suit by the players
and coaches depicted.133 Possibly, but not certainly, these are cases
in which defamation could not be established.134
Overlap with other torts. On the other hand, many of the false
light cases appear to be cases of defamation or infliction of
emotional distress under another name. Where the
1020
defamation claim requires derogatory content that would lower

the plaintiff in the esteem of others, the false light privacy claim
requires that the content would be highly offensive to a reasonable
person. If a reasonable person would find the publication highly
offensive, it is quite likely that the content is also defamatory
under contemporary definitions.135 Not surprisingly then, the
Supreme Court, after holding that defamation under color of state
law violated no constitutional rights, held that false light publicity
violated none either.136
False light as element of damage resulting from other torts.
Sometimes conduct that in fact puts the plaintiff in a false light is
actionable for entirely different reasons, so that the false light is
merely one element of damages resulting from some other tort. In a
Minnesota case,137 the plaintiff alleged that a photo developer
retained a copy of a photo showing the plaintiff and another person
in a shower together, then circulated the photo to others. The
plaintiff alleged that as a result, some people questioned her sexual
orientation. The court concluded that no false light claim would be
permitted but remanded for trial to determine the plaintiff’s
intrusion and appropriation claims. In an Oregon case, the
defendant signed the plaintiff’s name to a petition sent to the
governor. The court held the claim actionable, but as fraud and an
appropriation of the plaintiff’s name, not as a false light tort.138
Perhaps most of the cases of false light are cases of defamatory
communications, appropriation of name or likeness, intrusive
invasion of privacy followed by publication of matters wrongfully
gained in the intrusion, or some other tortious activity. In all of
these cases the plaintiff would be entitled to recover for the harms
done by placing her in a false light, even if there were no separate
false light tort. Consequently, a serious question is raised whether
the false light tort is a helpful addition to the armory or merely
another piece of baggage that gets in the way.139 In addition, the
false light claim always involves publication or publicity and hence
is either entitled to some kind of constitutional and common law
free speech protection140 or else is merely an evasion of those
constitutional protections.
Rejecting the false light tort. With these considerations in mind,
the highest courts of some states have flatly rejected any false light
tort.141 Others doubted that the tort
1021
should be recognized and so far have refused to do so142 or

suggested special impediments to it.143 In addition, legislation in
some states codifying a limited right of privacy has been deemed to
exclude all forms of privacy actions not established by statute,
including false light claims.144 The Supreme Court of Arizona, on
the other hand, has insisted that even when the plaintiffs allege
that the publication accused them of incompetence in office, illegal
activities, misuse of public funds, and police brutality, all clearly
defamatory, the plaintiff could assert the false light tort and would
not be limited to a defamation action.145 One potential advantage
in retaining the false light claim is that it can be and has been
used to avoid some of the more arcane and complex rules of
defamation.146 However, that hardly seems to be a justification for
the false light claim. It would be more clear, and more just, to
simply abolish undesirable defamation rules. If, instead, the rules
in defamation cases are sound, the false light claim may be an
undesirable evasion of the rules, unless courts go on to apply those
rules to the false light claim as well.147
Constitutional constraints. In any event, where the false light
tort is recognized, the Constitution imposes limits in the interest of
free speech, just as it does in libel cases. Under the rule for
defamation cases, the plaintiff who is a public official or public
figure must prove knowing or reckless falsehood148 and do so by
clear and convincing evidence.149 A more lenient rule applies to
libel cases brought by private figures; in that case, the plaintiff is
required to show “some fault” such as negligence and can recover
only actual damages.150 The Supreme Court handed down its
initial false light privacy decision before the more lenient rule for
private plaintiffs had been announced and consequently required a
knowing or reckless falsehood without regard to the plaintiff’s
status as a private figure.151 Because of the parallel to libel cases,
it may well be that a
1022
negligent falsehood would suffice in a false light claim by a

private person,152 provided that such a plaintiff could only recover
actual damages.153 The Supreme Court has implied that the
question is open for consideration.154 However, states may require
the plaintiff to prove not merely negligence, but a knowing or
reckless falsehood even when a private person sues, and some, in
line with the Restatement’s rule, have done so.155
________________________________
1 See Daniel Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477
(2006) (grouping the potentially harmful activities to privacy into four
categories: information collection, information processing, information
dissemination, and invasion into private spaces and decisions).
2 Restatement (Second) of Torts §§ 652A–652E (1976).
3 Id. § 652A cmt. d.
4 See Lior Jacob Strahilevitz, Reunifying Privacy Law, 98 Cal. L.
Rev. 2007 (2010) (arguing that courts should renounce the divisions
Prosser introduced into common law cases dealing with informational
privacy and instead combine the torts of intrusion on seclusion and public
disclosure of social facts by asking if the defendant intruded on private
information in a way that was highly offensive to a reasonable person).
2011 & Supp.).
6 Gates v. Discovery Commc’ns, Inc., 34 Cal.4th 679, 101 P.3d 552
(2004); Stern v. Doe, 806 So.2d 98 (La. Ct. App. 2001).
7 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68
(1905); Kunz v. Allen, 102 Kan. 883, 172 P. 532 (1918); Flake v.
Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938).
8 AFL Philadelphia LLC v. Krause, 639 F.Supp.2d 512 (E.D. Pa.
2009) (signing plaintiff’s name to a widely distributed letter); Faegre &
Benson LLP v. Purdy, 367 F.Supp.2d 1238, 1247–48 (D. Minn. 2005)
(posting statements falsely attributed to attorney); Bosley v.
Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004) (economic gain
other than advertising); Hinish v. Meier & Frank Co., Inc., 166 Or. 482,
113 P.2d 438 (1941) (signing plaintiff’s name to a communication to the
governor).
9 Gignilliat v. Gignilliat, Savitz & Bettis, LLP, 385 S.C. 452, 684
S.E.2d 756 (2009) (law partner consented to law firm’s continued use of his
name).
10 Trevino v. MacSports, Inc., 2010 WL 890992 (E.D. La. 2010) (use
of artist’s signature).
11 Lemon v. Harlem Globetrotters Int’l, Inc., 437 F.Supp.2d 1089,
1100 (D. Ariz. 2006). The Restatement treats all appropriation cases as
“property” cases, although it recognizes that personal feelings and
emotional distress of the plaintiff were part of the reason for recognizing
the right in the first place. See Restatement (Second) of Torts § 652C cmt.
a (1976).
12 See J. Thomas McCarthy, The Rights of Publicity and Privacy
(1998) (expansive definitions of right of publicity).
13 E.g., ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 930 (6th Cir.
2003); Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) (voice
imitation); Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831
(6th Cir. 1983) (phrase used to introduce famous television person);
Armstrong v. Eagle Rock Entm’t, Inc., 655 F.Supp.2d 779 (E.D. Mich.
2009). See Chapter 46.
14 Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288, 303
(D.N.H. 2008) (claim against web operators related to false personal
advertisements about the plaintiff was not barred by Communications
Decency Act because right of publicity sounded in intellectual property
law).
15 Cox v. Hatch, 761 P.2d 556 (Utah 1988) (Senator Hatch posed for
photos with federal postal workers, then used pictures in his political
campaign; workers had no claim as their likeness had no intrinsic value).
See also Barnhart v. Paisano Publ’ns, LLC, 457 F.Supp.2d 590, 595–96 (D.
Md. 2006). At times the fact that the plaintiff had a high profile status is
enough to warrant the claim. See Tripp v. United States, 257 F.Supp.2d
37, 40–42 (D.D.C. 2003).
16 Joe Dickerson & Assocs., LLC v. Dittmar, 34 P.3d 995 (Colo. 2001)
(plaintiff identified by name and picture in a newsletter).
17 Restatement (Second) of Torts § 652C (1976). See Yeager v.
Cingular Wireless LLC, 673 F.Supp.2d 1089 (E.D. Cal. 2009) (examining
whether plaintiff’s likeness is used to take advantage of his reputation or
prestige); Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d
847 (1980) (contrasting incidental use, which is not actionable, with an
effort “deliberately to exploit” the plaintiff’s likeness for advertising).
18 See Kerby v. Hal Roach Studios, Inc., 53 Cal.App.2d 207, 127 P.2d
577 (1942) (plaintiff’s name was same as fictional movie character; the
name was “signed” to printed and suggestive letters advertising the movie;
no intent was required, but the case might be a false light case if that
matters).
19 Comins v. Discovery Commc’ns, Inc., 200 F.Supp.2d 512, 523 (D.
Md. 2002); Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d
847 (1980) (photo of several unidentified people to illustrate “sociological
commentary” on the sexual revolution was not effort to sell goods but only
an incidental use of the plaintiff’s likeness).
20 University of Notre Dame Du Lac v. Twentieth Century-Fox Film
Corp., 22 A.D.2d 452, 256 N.Y.S.2d 301, aff’d, 15 N.Y.2d 940, 207 N.E.2d
508, 259 N.Y.S.2d 832 (1965).
21 Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D.
Tex. 2009); Chapman v. Journal Concepts, Inc., 528 F.Supp. 2d 1081 (D.
Haw. 2007); Battaglieri v. Mackinac Ctr. for Pub. Policy, 680 N.W.2d 915
(Mich. Ct. App. 2004); Freihofer v. Hearst Corp., 65 N.Y.2d 135, 480
N.E.2d 349, 490 N.Y.S.2d 735 (1985).
22 See Shulman v. Group W Prods., Inc., 18 Cal.4th 200, 955 P.2d
469, 74 Cal.Rptr.2d 843 (1998).
23 E.g., Rozhon v. Triangle Publ’ns., 230 F.2d 359 (7th Cir. 1956);
Raymen v. United Senior Ass’n, Inc., 409 F.Supp.2d 15 (D.D.C. 2006).
24 See Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 221 N.E.2d 543,
274 N.Y.S.2d 877 (1966), on reargument after review in the Supreme
Court, 21 N.Y.2d 124, 233 N.E.2d 840, 286 N.Y.S.2d 832, 30A.L.R.3d 196
(1967) (biography protected but fictionalized biography of famous baseball
pitcher actionable as use of personality for trade or business).
25 Toffoloni v. LFP Publ’g Group, LLC, 572 F.3d 1201 (11th Cir.
2009) (nude photos of murdered female wrestler that were taken 20 years
earlier did not satisfy newsworthiness standard).
26 See § 37.15.
27 Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003).
28 See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 97 S.Ct.
2849, 53 L.Ed.2d 965 (1977) (defendant broadcast video of the plaintiff’s
entire act as a human cannonball, state may impose liability).
29 See Raymen v. United Senior Ass’n, Inc., 409 F.Supp.2d 15
(D.D.C. 2006) (photograph of two men, about to be married under Oregon’s
same sex marriage law, kissing; defendant used the photograph in ad
attacking AARP, claiming AARP supported such marriages; individuals
depicted had no privacy rights because issue was of public concern); Joe
Dickerson & Assocs., LLC v. Dittmar, 34 P.3d 995 (Colo. 2001).
30 For example, in Hart v. Electronic Arts, Inc., 740 F.Supp.2d 658
(D.N.J. 2010), the defendant’s football video games may have used the
plaintiff’s likeness, replicating actual games in which he played. The court
thought such a use would not be commercial unless the likeness was used
to increase sales of the games and also that a celebrity’s identity might
serve dual purposes as newsworthy speech and also as speech designed to
sell products, substantially complicating the newsworthy-commercial
distinction.
31 Restatement (Second) of Torts § 652B (1976).
32 E.g., Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964);
Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958). Statutes provide
an independent ground for relief in the case of wiretapping. See 3 Dobbs,
33 Garback v. Lossing, 2010 WL 3733971 (E.D. Mich. 2010) (need to
show that private information from e-mail was obtained in an
objectionable manner).
34 See American Guarantee & Liab. Ins. Co. v. 1906 Co., 273 F.3d
605 (5th Cir. 2001).
36 Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003).
37 E.g., Cheatham v. Paisano Publ’ns., Inc., 891 F.Supp. 381 (W.D.
Ky. 1995) (at a large public bikers’ event, plaintiff wore clothing that
partly revealed her “bottom”; a photograph made at the event was not an
intrusive invasion of privacy).
38 It is said that the plaintiff must have an actual, subjective
expectation of privacy as well, but this is shown by objective facts. See
Medical Lab. Mgmt. Consultants v. American Broad. Cos., Inc., 306 F.3d
806 (9th Cir. 2002).
39 Clearly homes are private places as far as outsiders go. As
between husband and wife or domestic partners living in the home,
expectations of privacy may be altered by the marital relationship.
“Privilege” may be an alternate way of expressing the same essential idea.
See Hennig v. Alltel Commc’ns, Inc., 903 So. 2d 1137 (La. Ct. App. 2005).
40 Thus when surveillance of a public restroom stall is planned or
intentional, liability is appropriate. See Houghum v. Valley Mem’l Homes,
574 N.W.2d 812 (N.D. 1998). Georgia agrees, but says that if a public
restroom is used for sexual activity, the user has no expectation of privacy.
Johnson v. Allen, 272 Ga.App. 861, 613 S.E.2d 657 (2005).
41 Hernandez v. Hillsides, Inc., 47 Cal.4th 272, 211 P.3d 1063 (2009)
(undisclosed video surveillance).
42 See Medical Lab. Mgmt. Consultants v. American Broad. Cos.,
Inc., 306 F.3d 806 (9th Cir. 2002).
43 E.g., Johnson v. Stewart, 854 So.2d 544 (Ala. 2002) (surveillance
of plaintiff in public places not actionable); Stern v. Doe, 806 So.2d 98 (La.
Ct. App. 2001) (young man arrested for truancy, pockets emptied while
television camera rolled, no expectation of privacy).
44 See Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003)
(firm doing computer information searches found social security number
for person as requested by client, there is expectation of privacy in light of
legal and contractual constraints on releasing the SSN even if that data is
often illicitly obtained).
45 Myrick v. Barron, 820 So. 2d 81 (Ala. 2001).
46 TBG Ins. Servs. Corp. v. Superior Court, 96 Cal.App.4th 443, 117
Cal.Rptr.2d 155 (2002).
47 United States Dep’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (under
Freedom of Information Act, disclosure of FBI rap sheet that could contain
information about many individual state investigations or records could
compromise privacy interests); Best v. Malec, 2010 WL 3721475 (N.D. Ill.
2010) (broadcasting a police computer screen of data about plaintiff).
Distinguish aggregated data that contains no personally identifiable
information.
2011 & Supp.).
49 Sanders v. American Broad. Cos., Inc., 20 Cal.4th 907, 85
Cal.Rptr.2d 909, 978 P.2d 67 (1999).
50 In Miller v. Brooks, 123 N.C. App. 20, 472 S.E.2d 350 (1996), the
husband and wife were separated and the wife’s use of surveillance
cameras in the husband’s home was considered intrusive.
51 In re Marriage of Tigges, 758 N.W.2d 824 (Iowa 2008) (husband
had no right to videotaped wife in the bedroom without her knowledge and
consent); Clayton v. Richards, 47 S.W.3d 149 (Tex. App. 2001) (privacy
cause of action when wife installed video camera to tape husband in the
bedroom while she was out of town).
52 Flanagan v. Flanagan, 27 Cal.4th 766, 41 P.3d 575, 117
Cal.Rptr.2d 574 (2002) (expectation of privacy or confidentiality arises
without proof that victim also reasonably expected that contents of call
would not be later divulged); Sanders v. American Broad. Cos., Inc., 20
Cal.4th 907, 85 Cal.Rptr.2d 909, 978 P.2d 67 (1999).
53 Compare Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010) (setting
up iPhone and hitting record in conversation to which defendant was a
party could be intrusion tort), with Bradley v. Atlantic City Bd. of Educ.,
736 F.Supp.2d 891 (D.N.J. 2010) (secretly recording telephone call
concerning harassment did not warrant intrusion claim). Individual state
laws about the legality of such recordings may affect the conclusion.
54 Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692 (1999) (establishing
the principle that officers violate the Fourth Amendment by inviting
media representatives to enter the plaintiff’s home while officers executed
a warrant); see also Hill v. McKinley, 311 F.3d 899 (8th Cir. 2002)
(prisoner strapped down to a restraining board naked for three hours);
James v. City of Douglas, Ga., 941 F.2d 1539 (11th Cir. 1991) (video tape
of sexual conduct of the plaintiff seized by police from another person was
not logged in as evidence but kept in a drawer and viewed by various
persons); York v. Story, 324 F.2d 450 (9th Cir. 1963) (police required nude
photos of assault victim).
55 Hernandez v. Hillsides, Inc., 47 Cal.4th 272, 211 P.3d 1063 (Cal.
2009) (covert videotaping of the plaintiff’s office after her shift ended to see
who was using her computer to display pornography in a residential
facility for abused and neglected children was not highly offensive).
56 See Wolfe v. Schaefer, 619 F.3d 782 (7th Cir. 2010) (“If Congress
required airline passengers to fly nude in order to reduce the risk of a
terrorist incident, one imagines that the law might well be held to infringe
a constitutional right to privacy even though there is a substantial social
interest in airline safety”); Muick v. Glenayre Elecs., 280 F.3d 741 (7th
Cir. 2002) (employer’s valid interest in investigation relevant to intrusion
claim).
57 Leang v. Jersey City Bd. of Educ., 969 A.2d 1097 (N.J. 2009).
58 Prince v. St. Francis-St. George Hosp., Inc., 20 Ohio App.3d 4, 484
N.E.2d 265 (1985) (bill with medical diagnosis of alcoholism sent to
patient’s employer, a privacy claim would be actionable regardless
whether the defendant acted intentionally or negligently).
59 E.g., Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971); but cf.
Desnick v. American Broad. Cos., Inc., 44 F.3d 1345 (7th Cir. 1994)
(journalists fraudulently presenting themselves as patients in order to
obtain incriminating evidence about an eye clinic were not liable as
trespassers or for invasion of privacy).
60 Dalley v. Dykema Gossett, P.LLC, 788 N.W.2d 679, 287 Mich.App.
296 (2010) (defendants “gained admission to plaintiff’s premises by
deceit”); De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881).
61 Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942); cf.
Sanchez-Scott v. Alza Pharm., 86 Cal.App.4th 365, 103 Cal.Rptr.2d 410
(2001) (drug salesman with physician during plaintiff’s breast examination
without revealing his identity as a salesman, trial court erred in
dismissing complaint); Froelich v. Adair, 213 Kan. 357, 516 P.2d 993
(1973) (defendant paid hospital orderly to obtain plaintiff’s body tissue
from a discarded bandage).
62 In re Schuoler, 106 Wash.2d 500, 723 P.2d 1103 (1986).
63 Reid v. Pierce County, 136 Wash.2d 195, 961 P.2d 333 (1998).
64 Id. The claim was not based on survival of the deceased persons’
causes of action but on the relatives’ claims analogous to claims for
intentional interference with a dead body. See also Catsouras v. Dep’t of
Cal. Highway Patrol, 181 Cal.App.4th 856 (2010).
65 A federal statute now heavily regulates debt collection. 15
U.S.C.A. § 1692.
66 Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705 (Ala. 1983);
cf. McSurely v. McClellan, 753 F.2d 88 (D.C. Cir. 1985) (wife’s pre-
marriage relations with others revealed to husband).
67 Rumbauskas v. Cantor, 138 N.J. 173, 649 A.2d 853 (1994).
68 Irvine v. Akron Beacon Journal, 147 Ohio App.3d 428, 770 N.E.2d
1105 (2002); Charvat v. Dispatch Consumer Servs., Inc., 95 Ohio St.3d
505, 769 N.E.2d 829 (2002) (under federal statute, consumer placing name
on do-not-call list terminates caller’s former privilege derived from
established business relationship).
69 Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d
631 (4th Cir. 2005).
70 See Matthew W. Finkin, Privacy in Employment Law (1995 &
1997 Supp.); Pauline T. Kim, Privacy Rights, Public Policy, and the
Employment Relationship, 57 Ohio St. L.J. 671 (1996).
71 The Employee Polygraph Protection Act of 1988, 29 U.S.C.A. §§
2001–09 (1994).
72 As to testing as a condition of sports, see Hill v. National
Collegiate Athletic Ass’n, 7 Cal.4th 1, 865 P.2d 633, 26 Cal.Rptr.2d 834
(1994) (testing college athletes permissible).
73 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109
S.Ct. 1402, 103 L.Ed.2d 639 (1989).
74 Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513
(1997).
75 Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990); see
Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 609 A.2d 11 (1992);
Edward L. Raymond, Jr., Annotation, Liability for Discharge of At-will
Employee for Refusal to Submit to Drug Testing, 79 A.L.R.4th 105 (1991).
76 See Ariz. Rev. Stat. § 23–493.04; Roe v. Quality Transp. Servs., 67
Wash.App. 604, 838 P.2d 128 (1992).
77 Alexander v. Federal Bureau of Investigation, 971 F.Supp. 603
(D.D.C. 1997); Dalley v. Dykema Gossett, P.LLC, 287 Mich.App. 296, 788
N.W.2d 679 (2010); Clayton v. Richards, 47 S.W.3d 149 (Tex. App. 2001)
(estranged wife hired private investigator to install and monitor hidden
video camera in couple’s bedroom).
78 See Shulman v. Group W Prods., Inc., 18 Cal.4th 200, 955 P.2d
469, 74 Cal.Rptr.2d 843 (1998).
79 Restatement (Second) of Torts § 652D (1976). In some cases, the
truth of the disclosure will establish a legitimate public concern. For
example, if the plaintiff has tested positive for drug use, it is not a privacy
tort for the employer to receive the results and pursue disciplinary action.
Garofolo v. Fairview Park, 2009 WL 4694877 (Ohio Ct. App. 2009).
80 Restatement (Second) of Torts § 652D (1976).
81 Wolfe v. Schaefer, 619 F.3d 782 (7th Cir. 2010) (citing cases).
82 Catsouras v. Department of Cal. Highway Patrol, 181 Cal.App.4th
856, 104 Cal.Rptr.3d 352 (2010) (highway patrol officers’ e-mail of
gruesome photos of 18-year-old’s decapitated corpse to friends and family
members for Halloween could support privacy claim); Johnson v. K-Mart
Corp., 311 Ill.App.3d 573, 723 N.E.2d 1192, 243 Ill.Dec. 591 (2000)
(employer placed private detectives in work force to pose as plaintiffs’ co-
workers and to obtain private information about workers’ sex lives and
other matters; such information was then published to employer; facts
made a jury question whether the material was highly offensive to a
reasonable person). Perhaps “deeply shocking” rather than “highly
offensive” would better express the requirement. See Haynes v. Alfred A.
Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993).
83 Scroggins v. Bill Furst Florist & Greenhouse, Inc., 2004 WL 41716
(Ohio Ct. App. 2004) (photo of female plaintiff in “teddy,” in no way vulgar
or revealing, as a matter of law was not highly offensive).
84 Hatch v. Town of Middletown, 311 F.3d 83, 91 (1st Cir. 2002);
Green v. CBS Inc., 286 F.3d 281 (5th Cir. 2002) (“once information is part
of a public record, there can be no liability for publicizing it”); Washington
v. City of Georgetown, 2009 WL 530782 (E.D. Ky. 2009).
85 Moreno v. Hanford Sentinel, Inc., 172 Cal.App.4th 1125, 91
Cal.Rptr.3d 858 (2009) (essay posted on Myspace for less than a week was
“open to the public at large” so information was already public). See
Rodney A. Smolla, Law of Defamation § 10.04.
86 See Bonome v. Kaysen, 2004 WL 1194731 (Mass. Super. Ct. 2004)
(author of Girl, Interrupted is protected in discussing her sexual
relationship which tells her own personal story which inextricably involves
her boyfriend). See also Olson v. Red Cedar Clinic, 681 N.W.2d 306 (Wis.
Ct. App. 2004); Livsey v. Salt Lake County, 275 F.3d 952 (10th Cir. 2001).
87 National Archives & Records Admin. v. Favish, 541 U.S. 157, 124
S.Ct. 1570, 158 L.Ed.2d 319 (2003) (recognizing relatives’ privacy interest
in photos of deceased who died of gunshot wounds); Catsouras v.
Department of Cal. Highway Patrol, 181 Cal.App.4th 856, 104 Cal.Rptr.3d
352 (2010) (family members have a common law right of privacy in the
images of their deceased daughter); Reid v. Pierce County, 136 Wash.2d
195, 961 P.2d 333 (1998) (family have a privacy interest in autopsy
photos).
88 Willan v. Columbia County, 280 F.3d 1160 (1st Cir. 2002); Quinn
v. Thomas, 2010 WL 3021795 (D. Nev. 2010); Randolph v. ING Life Ins. &
Ann. Co., 973 A.2d 702 (D.C. 2009) (data concerning employee participants
in a deferred compensation plan was stolen from the laptop computer of
the plan administrator but never used or distributed after the theft;
publicity rule had not been met); Restatement (Second) of Torts § 652D
cmt. a (1976); David A. Elder, Privacy Torts § 3:3 (2002) (criticizing cases
following this rule in “knee-jerk” fashion).
89 Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App.
2009) (“a publicly accessible webpage can present the story of someone’s
private life … to more than one billion Internet surfers worldwide. This
extraordinary advancement in communication argues for, not against, a
holding that the Myspace posting constitutes publicity” even though few
people had accessed it). See also Steinbuch v. Cutler, 463 F.Supp.2d 1
(D.D.C. 2006) (claim of invasion of privacy on A’s website, a claim against
B whose own website allegedly carried a link to A’s, was allowed to
proceed, but seemingly not because the link itself was sufficient but only
because the plaintiff alleged the two “worked together” to give publicity to
the material).
90 In some cases a court could drop the requirement of publicity and
substitute a privilege or reasonableness analysis instead. For instance, in
Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003), the
employee-plaintiffs’ social security numbers were distributed to over two
hundred people in the business. The court concluded that was not enough
“publicity.” Under a privilege analysis, the court would ask instead
whether the distribution was unreasonable or unprivileged. Distribution to
managers in the business might be reasonable and even expected, but if
not, the seriousness of identity theft would suggest that the distribution
should be actionable.
91 Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1974) (doctor gave
information on patient to patient’s employer; tort of privacy invasion);
Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009) (clinic
employee disclosed acquaintance’s medical file concerning sexually
transmitted disease and sexual partners to another employee, who
disclosed it to others who posted it on a Myspace account viewed by a
small number of people—valid privacy claim and claim under state
statute). See Andrew J. McClurg, Kiss and Tell: Protecting Intimate
Relationship Privacy Through Implied Contracts of Confidentiality, 74 U.
Cin. L. Rev. 887 (2006).
92 Randolph v. ING Life Ins. & Ann. Co., 973 A.2d 702 (D.C. 2009).
93 See Hennig v. Alltel Commc’ns, Inc., 903 So.2d 1137 (La. Ct. App.
2005) (cell phone company revealed wife’s phone records to husband, not
actionable because husband had a legal right to inspect records concerning
debt of the marital community).
94 See Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005);
Olson v. Red Cedar Clinic, 681 N.W.2d 306 (Wis. Ct. App. 2004); contra
Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003)
(rejecting the special relationship or “particular public” approach).
95 Wilson v. Freitas, 121 Haw. 120, 214 P.3d 1110 (Ct. App. 2009)
(identifying suspect in serial murder investigation was legitimate public
concern).
96 Alfred Hill, Defamation and Privacy Under the First Amendment,
76 Colum. L. Rev. 1205, 1258 (1976).
97 Planned Parenthood of the Columbia/Willamette, Inc. v. American
Coal. of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (statutory action).
98 Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1973) (medical
information in breach of confidence); MacDonald v. Clinger, 84 A.D.2d 482,
446 N.Y.S.2d 801 (1982) (similar); Doe v. Roe, 400 N.Y.S.2d 668 (Sup. Ct.
1977) (therapist’s book made her patient recognizable); Humphers v. First
Interstate Bank of Or., 298 Or. 706, 696 P.2d 527 (1985) (doctor’s breach of
confidence in disclosing child’s identity was actionable as breach of
confidence, not as privacy invasion).
99 However, the fact that information was wrongfully obtained does
not automatically lead to liability where the defendant’s wrongdoing is
deemed collateral. Desnick v. American Broad. Cos., Inc., 44 F.3d 1345
(7th Cir. 1994). As to liability for publishing information wrongfully
obtained by another where the information is of public concern, see
Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001).
100 Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).
101 Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942).
102 Sidis v. F-R Publ’g Corp., 113 F.2d 806 (2d Cir. 1940).
103 Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787
(2001). See Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969) (publishers,
who did not obtain information by trespass or betrayal and did not
authorize such conduct, nevertheless published the information;
publishers not liable).
104 California courts have held that lack of newsworthiness is an
element of the prima facie case, making newsworthiness a “complete bar”
to liability for public disclosure of private facts. See Taus v. Loftus, 40
Cal.4th 683, 54 Cal.Rptr.3d 775, 151 P.3d 1185 (2007) (prominent
psychology professor and author who disclosed various aspects of plaintiff’s
family background and personal life in connection with her scholarly
studies of repressed memory in childhood sexual abuse cases).
105 Shulman v. Group W Prods., Inc., 18 Cal.4th 200, 955 P.2d 469, 74
Cal.Rptr.2d 843 (1998).
106 Cape Publ’ns, Inc. v. Bridges, 423 So.2d 426 (Fla. Dist. Ct. App.
1982). See also Anderson v. Suiters, 499 F.3d 1228, 1235–37 (10th Cir.
2007) (videotape of assault of rape victim).
107 See Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1218–20 (10th Cir.
2007) (allegations of misconduct by undercover police officers); Rodney A.
Smolla, Law of Defamation § 10.04[2][b]; cf. Riley v. Harr, 292 F.3d 282
(1st Cir. 2002) (private fact that was seemingly not in itself newsworthy
was nonetheless protected because it was substantially relevant to the
matters of public concern reported).
108 The term itself is not treated as a mere description of what the
public wants to know, but a normative term standing for the court’s
willingness to protect the publication. See Shulman v. Group W Prods.,
Inc., 18 Cal.4th 200, 955 P.2d 469, 74 Cal.Rptr.2d 843 (1998).
109 Sipple v. Chronicle Publ’g Co., 154 Cal.App.3d 1040, 1049, 201
Cal.Rptr. 665, 670 (1984).
110 M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 107 Cal.Rptr.2d
504 (2001).
111 Diaz v. Oakland Tribune, Inc., 139 Cal.App.3d 118, 188 Cal.Rptr.
762 (1983).
112 See John P. Elwood, Note, Outing, Privacy, and the First
Amendment, 102 Yale L.J. 747 (1992).
113 Catsouras v. Department of Cal. Highway Patrol, 181 Cal.App.4th
856, 874, 104 Cal.Rptr.3d 352, 366 (2010). Other language, however,
suggested that the defendant’s morbid or sensational motive would be
enough to rule out public interest in the published content.
114 Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931).
115 Gates v. Discovery Commc’ns, Inc., 34 Cal.4th 679, 101 P.3d 552,
21 Cal.Rptr.3d 663 (2004).
116 Cox Broad. Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d
328 (1975). Cox was applied in Uranga v. Federated Publ’ns. Inc., 138
Idaho 550, 67 P.3d 29 (2003), to protect publication of a statement that
had been inserted in a court file by an unknown person forty years earlier.
117 Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d
443 (1989) (police report) (quoting Smith v. Daily Mail Publ’g Co., 443 U.S.
97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) (police radio)). See also Uranga v.
Federated Publ’ns. Inc., 138 Idaho 550, 67 P.3d 29 (2003) (40-year-old
unsworn statement inserted in court file by unknown person and not part
of any pleading was protected).
118 See National Archives & Records Admin. v. Favish, 541 U.S. 157,
124 S.Ct. 1570, 158 L.Ed.2d 319 (2003); Los Angeles Police Dep’t v. United
Reporting Publ’g Co., 528 U.S. 32, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999);
Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443
(1989).
119 Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010) (state could
not prevent private party from posting social security numbers from land
records when it had not yet redacted social security numbers from records
it put online).
120 Diane L. Zimmerman, Requiem for a Heavyweight: a Farewell to
Warren and Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291 (1983).
121 Freihofer v. Hearst Corp., 65 N.Y.2d 135, 480 N.E.2d 349, 490
N.Y.S.2d 735 (1985). But the state consumer protection statute may
prevent certain disclosures of private information. See Meyerson v. Prime
Realty Svcs., LLC, 796 N.Y.S.2d 848, 853 (N.Y. Sup. Ct. 2005).
122 Anderson v. Fisher Broad. Cos., Inc. 300 Or. 452, 469, 712 P.2d
803, 814 (1986).
123 Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997).
124 Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958 (Ind. Ct. App.
2001).
125 Hall v. Post, 323 N.C. 259, 372 S.E.2d 711 (1988). However, the
court allowed an intentional infliction of emotional distress claim in a
related setting. See Burgess v. Busby, 142 N.C.App. 393, 544 S.E.2d 4
(2001) (doctor sent letter to other doctors in the county naming jurors as
people who found a doctor guilty of malpractice).
126 Restatement (Second) of Torts § 652E (1976).
127 Bean v. Gutierrez, 980 A.2d 1090 (D.C. 2009) (communication
from one individual to another without knowledge or intent that the
second person would publish it in a newsletter is not sufficient to satisfy
the “publicity” requirement); Restatement (Second) of Torts § 652E cmt. a
(1976) (incorporating the publicity requirement of § 652D cmt. a).
128 Steinbuch v. Cutler, 463 F.Supp.2d 1 (D.D.C. 2006) (claim of
invasion of privacy on A’s website; an additional claim against B, whose
own website allegedly carried a link to A’s, was allowed to proceed,
seemingly not because the link itself was sufficient but only because the
plaintiff alleged the two “worked together” to give publicity to the
material); Cole v. Chandler, 752 A.2d 1189 (Me. 2000) (communicating to
public at large or to so many that eventual public knowledge is
substantially certain). But see Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707,
74 S.W.3d 634 (2002) (requiring publicity but publication “to police, Wal-
Mart supervisory personnel, and the prosecuting attorney” was treated as
sufficient publicity). Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002),
said the requirement was disclosure “to one or more persons,” but that
seems to be a mistake about California law, which appeared to govern. See
generally David A. Elder, Privacy Torts § 4:3 (2002); Russell G. Donaldson,
Annotation, False Light Invasion of Privacy—Cognizability and Elements,
57 A.L.R.4th 22 (1987).
129 West v. Media Gen. Convergence, Inc., 53 S.W.3d 640 (Tenn.
2001).
130 See Cantrell v. Forest City Pub. Co., 419 U.S. 245, 95 S.Ct. 465, 42
L.Ed.2d 419 (1974) (in effect reinstating a jury verdict).
131 Uhl v. Columbia Broad. Sys., Inc., 476 F.Supp. 1134 (W.D. Pa.
1979).
132 Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002) (given
nature of magazine, it was a jury question whether photo and text on cover
implied falsely that plaintiff had posed nude for magazine, which plaintiff
claimed in turn implied that “he was willing to degrade himself and
endorse such a magazine”).
133 M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 107 Cal.Rptr.2d
504 (2001).
134 See also Flowers v. Carville, 310 F.3d 1118, 1132 (9th Cir. 2002)
(false light claim by plaintiff who allegedly had affair with former
President of the United States could go forward; in false light, unlike
defamation, plaintiff did not need to allege injury to her reputation).
135 Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008) (“conduct
that defames will often be highly offensive to a reasonable person, just as
conduct that is highly offensive will often result in injury to one’s
reputation”); compare Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir.
2002) (false light claim based on magazine’s implication that plaintiff
would “endorse” the magazine by posing for it), with Eastwood v. National
Enquirer, Inc., 123 F.3d 1249 (9th Cir. 1997) (defamation claim based on
publication’s implication that plaintiff gave it an interview, perhaps
implying that actor was washed up, else he would not interview with such
a publication).
136 Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).
137 Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998).
138 Hinish v. Meier & Frank Co., Inc., 166 Or. 482, 113 P.2d 438
(1941).
139 Wilson v. Freitas, 121 Haw. 120, 214 P.3d 1110 (Ct. App. 2009)
(false light claim is derivative of defamation claim: if latter is dismissed,
former will be as well).
140 Roux v. Pflueger, 16 So. 3d 590 (La. Ct. App. 2009) (speech on an
issue of public concern—vicar giving away valuable church property—as a
matter of law was not false light tort).
141 Denver Publ’g Co. v. Bueno, 54 P.3d 893 (Colo. 2002) (emphasizing
overlap with libel, availability of other privacy and emotional distress
claims, and constitutional free speech concerns, three judges dissenting);
Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008); Cain v. Hearst
Corp., 878 S.W.2d 577, 579 (Tex. 1994).
142 Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998); cf.
Sullivan v. Pulitzer Broad. Co., 709 S.W.2d 475 (Mo. 1986) (plaintiff could
not evade defamation statute of limitation by casting claim as one for false
light privacy). See Russell G. Donaldson, Annotation, False Light Invasion
of Privacy—Cognizability and Elements, 57 A.L.R.4th 22 (1988).
143 See Colbert v. World Publ’g Co., 747 P.2d 286, 292 (Okla. 1987)
(linking the tort to intentional infliction of emotional distress and
requiring a knowing or reckless falsehood).
144 Costanza v. Seinfeld, 279 A.D.2d 255, 719 N.Y.S.2d 29 (2001);
WJLA-TV v. Levin, 264 Va. 140, 564 S.E.2d 383 (2002).
145 Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d
781 (1989); cf. West v. Media Gen. Convergence, Inc., 53 S.W.3d 640
(Tenn. 2001) (upholding the false light tort in a case where plaintiffs
alleged a publication implying a sexual or “cozy” relationship with a judge
who referred business to the plaintiff).
146 See, e.g., Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
742 F.Supp. 1359, 1373 (N.D. Ill. 1990) (Illinois’ innocent construction rule
and distinction between per se and per quod defamation avoided by false
light privacy claim). But other courts have carried over the per quod rules
of defamation to privacy claims as well. Fellows v. National Enquirer, Inc.,
42 Cal.3d 234, 721 P.2d 97, 228 Cal.Rptr. 215, 57 A.L.R.4th 223 (1986).
147 Yeung v. Maric, 224 Ariz. 499, 232 P.3d 1281 (Ct. App. 2010)
(absolute judicial proceedings privilege applies to false light as it would to
defamation claims); Swan v. Boardwalk Regency Corp., 969 A.2d 1145
(N.J. 2009) (to avoid end run around defamation requirements, one year
statute of limitations for defamation actions applies to false light privacy
claims).
148 Falsity itself is a hurdle in a number of cases. See S.B. v. Saint
James Sch., 959 So. 2d 72 (Ala. 2006) (schoolgirls who took nude pictures
of themselves that were circulated among classmates could not show that
expulsion put them in false light); Mann v. Cincinnati Enquirer, 2010 WL
3328631 (Ohio Ct. App. 2010) (“privacy is not invaded when unimportant
false statements are made”).
149 § 37.18.
150 Id.
151 Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456
(1967).
152 Such a rule has been applied or stated. See Wood v. Hustler
Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984) (Texas law before Texas
rejected false light claims altogether); West v. Media Gen. Convergence,
Inc., 53 S.W.3d 640 (Tenn. 2001). To complete the parallel, the plaintiff
would be limited to a recovery of actual damages in such a case.
153 Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993); West
v. Media Gen. Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001).
154 Cantrell v. Forest City Publ’g Co., 419 U.S. 245, 95 S.Ct. 465, 42
L.Ed.2d 419 (1974).
155 See Pfannenstiel v. Osborne Publ’g Co., 939 F.Supp. 1497 (D. Kan.
1996) (predicting Kansas law to this effect and citing a number of cases);
Colbert v. World Publ’g. Co., 747 P.2d 286 (Okla. 1987); Robert D. Sack &
Sandra S. Baron, Libel, Slander and Related Problems § 10.3.6.2 (3d ed.
2008) (reviewing cases on all positions). Cf. Corey v. Pierce County, 154
Wash. App. 752, 225 P.3d 367 (2010) (knowing or reckless falsehood
required with defamation and false light in case involving prosecutor).
1023
Chapter 39
MISUSING JUDICIAL PROCESS

Analysis
A. INTRODUCTION: TORTIOUS USE OF THE LEGAL PROCESS
B. MALICIOUS PROSECUTION
§ 39.2 Elements
§ 39.3 Instigating or Continuing the Criminal Proceeding
C. WRONGFUL CIVIL LITIGATION
§ 39.8 Elements
§ 39.12 Special-Injury or Special-Grievance Requirement
D. ABUSE OF PROCESS
§ 39.13 Elements
§ 39.14 The Meaning of “Process” and Examples of Abuse
§ 39.15 Collateral Advantage and the “Act After” Requirement
E. REFORMS AND NEW DIRECTIONS
__________
A. INTRODUCTION: TORTIOUS USE OF THE

LEGAL PROCESS
The integrity of the legal system can be undermined by the
innocent, negligent, or intentional conduct of many people,
including lawyers, litigants, witnesses, judges, and juries. A judge
who makes a palpably erroneous ruling, a witness who commits
perjury, and a litigant who brings wholly unjustified suits all inflict
harm on the legal system and the public interest. They may also
inflict private harm upon others in the process. This chapter
addresses the torts of malicious prosecution, wrongful civil
litigation, and abuse of process that may allow recovery when such
private harm occurs.1
1024
In the most common kind of case, the plaintiff is complaining

because the defendant unjustifiedly instigated an earlier suit or
criminal prosecution against the plaintiff, causing the plaintiff
expense and perhaps loss of reputation. The injustice felt by one
who has been wrongly prosecuted is clear enough. The chief policy
against redress for such a victim is that prosecutions of the
arguably guilty should not be discouraged by the threat that the
complaining witness will be held liable in damages. Moreover, if a
second court could impose liability for what was done in the first,
then a third court could question the second, and a fourth could
question the third. Much more substantially, litigation in the first
court’s resolution of the issues represents the appropriate solution
to the dispute. These policies translate into great caution about
imposing liability upon those who instigate criminal or civil
litigation or utilize the process of the courts.2
The policy of limiting liability of those involved in legal
processes is expressed in two major ways. First, courts protect
many actors in the legal process by recognizing privileges or
immunities. Second, courts require the plaintiff who asserts harm
resulting from litigation to prove a series of difficult elements to
make out a prima facie case.
Litigation privilege or immunity. Almost everyone directly
involved in litigation enjoys an absolute immunity from liability for
communications made in the litigation or even in preparation for
it3 lest the voices of the honest be stilled by fear of liability.4
Beyond that, judges are immune from suit based upon their rulings
in a case over which they have jurisdiction, even if the ruling is
erroneous or malicious.5 Although in some states a witness
retained as an expert is subject to liability for expert malpractice,6
this liability runs only to the party who retained him. Otherwise,
witnesses are immune; even those who testify to a knowing
falsehood avoid liability to those harmed by his testimony, either
on the ground that perjury is not a tort or that the witness is
absolutely immune.7 And no civil rights action lies even though the
lying witness is a government
1025
official.8 Official prosecutors,9 grand juries,10 and those in

similar roles11 are absolutely immune for their decision to
prosecute as well as for their in-trial conduct.
Litigation privilege or immunity inapplicable to wrongfully
brought actions. Private persons and police officers who wrongfully
institute legal actions are not protected by the litigation privilege
against a malicious prosecution claim.12 This result reflects the
tendency of many courts to limit liability for conduct occurring
after suit is brought13 but to permit liability for wrongfully
bringing suit in the first place. For instance, although perjury is
not ordinarily actionable, pre-litigation spoliation of evidence
sometimes is.14 More central in this chapter, citizens and officers
who procure the institution of a prosecution, civil suit, or even
misuse a process within the suit may be held liable if they have
done so wrongfully.15 Attorneys fall under the same rule. They are
not liable vicariously for the acts of their clients, but for their own
decisions to sue when the known facts show that there is no
probable cause to do so, and for their own abuse of process, they
enjoy no more immunity than others16 and are subject to
liability.17
Damages. Damages awardable for malicious prosecution,
wrongful civil litigation and abuse of process are dependent upon
the facts and upon proof of losses, but when evidence shows the
harm claimed, the principles of damages are essentially the same
with all three torts. As with all torts, recovery is limited to those
harms fairly attributable to the defendant’s wrongful acts.
Compensatory damages for tangible losses or harm normally
include reasonable attorney’s fees and other expenses incurred in
defending the wrongful criminal or civil litigation18 or avoiding or
quashing abusive process,19 other consequent losses such as lost
earnings,20 damages for dispossession of
1026
or cloud on the title of property21 and for physical illness or pain

resulting from the tort,22 subject to the usual limitations that they
must result proximately from the wrong and that damages will not
be awarded for speculative or conjectural items of loss.23 Intangible
damages recoverable include damages for harm to reputation24 and
damages for emotional harm.25 Punitive damages can be awarded
against the tortfeasor,26 subject to all the rules governing such
awards in the particular jurisdiction.27
B. MALICIOUS PROSECUTION
§ 39.2 Elements
A malicious prosecution suit asserts that the plaintiff was
formerly prosecuted and that the prosecution was wrongfully
instigated by the now defendant. It differs from false arrest in that
the prosecution does not necessarily involve any detention of the
plaintiff at all and in that any detention that does occur is the
result of legal process that would defeat a false imprisonment
claim. Malicious prosecution focuses upon the elements necessary
to show that the process is wrongful; detention or confinement is
not part of the issue, although the plaintiff who has a malicious
prosecution suit may also have a false arrest action. Malicious
prosecution always involves defamation, since it entails charging
the now-plaintiff with a crime, but a defamation action as such
would be defeated by the privilege to report suspected crimes to
appropriate authorities. In the usual view, malicious prosecution
also differs from abuse of process, which requires misuse of legal
process after it has been rightly issued.
One common illustration of the malicious prosecution case is
this: a store manager believes the plaintiff has secreted
merchandise on her person and has left the premises without
paying. The manager swears out a warrant charging the plaintiff
with shoplifting or some similar crime. The jury returns a not
guilty judgment. The plaintiff then sues the store for malicious
prosecution. Indeed, any charge of crime can produce a tort claim
that the accused was maliciously prosecuted—a retailer’s bad-
check charge, a lender’s charge of criminal fraud, or an employer’s
charge of embezzlement, for example.
The plaintiff who is unjustifiably prosecuted suffers a number of
harms that are worthy of redress, but redress does not come easily.
The malicious prosecution claim must assert that the plaintiff’s
wrongful prosecution was (1) directly or indirectly instigated or
continued by the defendant,28 (2) without probable cause, (3) with
improper
1027
purpose (“malice”), and (4) terminated favorably to the

plaintiff.29 The plaintiff is also required to prove damages, but that
is seldom a problem. Since all of these elements are required to
establish the claim, there is no such thing as a valid claim for
negligent prosecution.30 It is difficult to prove all four of the
required elements and it is meant to be, since those who report a
perception of crime should not be led by fear of liability to withhold
information from police and prosecutors.
§ 39.3 Instigating or Continuing the Criminal
Proceeding
Criminal proceeding required. Malicious prosecution can be
established only if the defendant has instigated or continued to
pursue a criminal proceeding.31 The Restatement Second of Torts
rightly points out that a criminal proceeding must be formally
begun by issuance of criminal process, by an indictment, or at least
by an official arrest on a criminal charge.32 Almost any kind of
criminal proceeding will qualify, and most courts say that a
proceeding has been instituted even if the court lacks
jurisdiction.33 On the other hand a mere complaint to authorities
that never results in arrest, indictment or information does not
initiate a criminal proceeding.34
Reporting facts to prosecutor or officer. To be an instigator, the
defendant must necessarily make a complaint, induce another to
do so,35 or otherwise communicate directly or indirectly with the
prosecutor; and prosecution must in fact follow. But while that is
necessary, it is not sufficient. If the officer or prosecutor makes his
own decision to prosecute, it is he, not the complaining witness,
who is regarded as instituting the action.36 The defendant is free to
report the facts to the prosecutor. The defendant’s provision of
facts leaves the decision to the prosecutor, and the defendant is not
responsible for his decisions to prosecute.37
Falsity, inaccuracy, or undue influence required. As these
limitations imply, the defendant can be regarded as an instigator
of the proceeding only if (a) he communicates material information
falsely or inaccurately and the prosecutor relies upon his
statement,38 or (b) the defendant uses his power or position to
influence the prosecutor
1028
in favor of prosecution.39 An inaccurate statement of facts can

be found when the defendant omits material information such as
exculpatory evidence that might induce a prosecutor not to
proceed.40
An important question arises when the defendant believes that
he has reported the information accurately to the prosecutor but it
is in fact false, so that by honest error the prosecutor is misled. The
Restatement Second of Torts and most cases protect the defendant
who honestly believes the information he has furnished the
prosecutor, even if it turns out to be false.41 For example, if the
defendant honestly identifies the plaintiff as the person who
committed a crime, the plaintiff is not an instigator of the
prosecution and not liable even though the identification is in fact
false.42 In effect, this requires a knowing or reckless falsehood. The
danger of penalizing one who cooperates with law enforcement is
so great that it is appropriate to require more than negligence.
The plaintiff must prove that the defendant instigated criminal
proceedings without probable cause.43 Probable cause turns on the
reasonableness of the accusation made against the plaintiff,44
rather than on the accuser’s improper purpose or malice. If the
defendant had probable cause to procure the prosecution, the fact
that he harbored malice or improper purpose will not help the
plaintiff. The accuser’s malice, as the saying goes, does not permit
an inference that probable cause was lacking.45
Definitions. Many courts have defined probable cause in similar
language. One version of the definition says that probable cause is
a state of facts known to the accuser that would permit a person of
ordinary prudence to believe that the accused committed the
offense charged,46 although the facts need not show guilt beyond a
reasonable doubt.47 A second version, perhaps more accurately,
says that the facts must permit a reasonable person to believe that
the accused committed the act of which the accuser complains.48
The first version suggests that a citizen-accuser is responsible for
failing to
1029
name the crime correctly,49 except that in very unusual cases he
can avoid liability because of an honest mistake of law.50 The
second suggests that he need only state the facts accurately.
Which definition? The first version may be more appropriate
when the accuser is an officer who should know or find out the
appropriate charge. The second version is more appropriate when
the accuser is a private person whose responsibility should be
limited to accurate reporting of the facts. Sometimes, however, the
accusation of a crime implies the assertion of some specific facts. If
a reasonable person would not believe the implied assertions of
fact, then probable cause is lacking even under the second version.
For instance, a storekeeper might accuse someone of larceny when
the crime actually shown by the facts is only a crime called
shoplifting. The second version of the probable cause definition
does not require the storekeeper to take the risk that his legal
language is inappropriate but it does require reasonable grounds
for believing facts. But the charge of larceny, like the more
accurate charge of shoplifting, implies grounds for believing that
the accused took something. If the facts do not warrant such a
belief by a reasonable person, probable cause is lacking under
either version of the definition.
Factual analysis. Under any definition, the determination of
probable cause or its absence usually requires detailed factual
analysis. A shopper’s concealment of merchandise coupled with
prompt departure may warrant an inference of theft, but a
customer’s departure with openly carried merchandise may not.51
There are, of course, easy cases in which courts can simply say that
the defendant was irrational in drawing an inference of guilt. The
officer who overhears Person A say he smoked marijuana in Person
B’s presence can hardly rationally conclude that Person B
possessed marijuana.52 The officer who relies on a child’s
contradictory statements, when that child has been beaten so badly
he cannot coherently identify the plaintiff as a criminal when all
other evidence exculpates him, obviously has no probable cause for
accusing the plaintiff.53
Reasonable appearance of facts at the time. Probable cause—the
reasonableness of inferences of guilt—is to be judged by facts as
they appeared at the time, not by later-discovered facts.54 When
liability is based upon continuance rather than initiation of the
prosecution, probable cause must be judged on appearances at the
time the accuser acts to continue the prosecution, as where he
refuses to withdraw his complaint even after he has learned of the
accused’s innocence.55 Non-lawyers may judge appearances by
relying in good faith upon advice of fully informed counsel who is
admitted to the bar in the state or otherwise appears to be
reasonably competent.56
1030
Further investigation required. When appearances leave heavy

doubts, or create serious ambiguities, and when they indicate that
other information is available that will confirm or dispel
suspicions, an accusation made without further investigation may
be premature and lacking in probable cause. For example, when a
store customer walks out with an unpaid-for item of merchandise,
courts often say that the inference of theft is reasonable, so the
store manager has probable cause to prosecute,57 but when the
evidence is ambiguous or doubtful, the accuser’s failure to
investigate, or at least to utilize all the evidence at hand, may be
enough to indicate a want of probable cause. An officer who has
only an unsupported accusation of the plaintiff from a felon with a
motive for revenge should not lodge a serious charge of armed
robbery when further leads remain to be investigated.58 On the
other hand, where a reasonable person would not investigate the
facts further before instituting criminal proceedings, the lack of
such an investigation will not show lack of probable cause.59
Similarly, the mere fact that some evidence can be found that
tends to exculpate the accused does not eliminate probable cause to
believe in guilt.60
Objective vs. subjective judgments of reasonableness. The
reasonableness standard of probable cause is an objective
standard.61 If the citizen-accuser only states facts to an officer or
prosecutor, and he honestly believes those facts, the whole matter
is left to the prosecutor, and the accuser is not an instigator of the
prosecution at all.62 However, when it comes to the issue of
probable cause, the accuser’s own honest belief in guilt is not
sufficient; the facts must warrant a reasonable person’s belief in
guilt.63 However, a formula recited by a number of courts implies
or states that while the accuser’s subjective belief in guilt is not
enough to show probable cause, his subjective belief in the
accused’s innocence is enough to show the lack of it.64 If the facts
warrant prosecution, however, the citizen’s belief in innocence
seems irrelevant. A completely objective test would be more
appropriate,65 and some recent decisions have explicitly rejected
subjective elements.66 Perhaps in most cases the citizen-accuser
would be protected because he is not an instigator at all.
Presuming want of probable cause from judicial actions. Since
the criminal trial itself does not deal with the issue of probable
cause but with the issue of ultimate guilt
1031
beyond a reasonable doubt, an acquittal of the accused at trial

does not tend to prove that the accuser lacked probable cause.67
Some courts, however, have said that when the examining
magistrate finds no probable cause, or the grand jury rejects an
indictment, a rebuttable presumption or an inference arises that
the accuser lacked probable cause.68 Some have even said so when
the public prosecutor enters a nolle prosqui or abandons the
prosecution.69 Other courts have rejected such presumptions.70
The presumption or inference is usually a diversion. At best, it
puts the burden upon the defendant to show he had probable cause
and hence places upon him the risk of uncertainty. It may promote
a substantial diversion from the merits because the presumption
may be attacked on the ground that the magistrate’s discharge was
not upon the merits, or was a mistaken adjudication of the
ultimate guilt rather than probable cause, or was based upon
misconduct.71 If the evidence bearing upon probable cause is before
the court, the presumption satisfies no need, especially under the
usual rule that the probable cause issue is for the judge, not the
jury.72 In addition, if the court indulges a presumption that the
defendant lacked probable cause because a magistrate so
determined at a preliminary criminal hearing, the court is binding
the present defendant by the results of a proceeding in which the
defendant was not a party. If that is not actually unconstitutional,
it is at least unfair,73 and since it is also unneeded, such
presumptions could be dropped without loss.
Presuming probable cause. The converse case is one in which
the accused is bound over by the magistrate, or indicted by the
grand jury. Courts in these cases have held that such
determinations make a prima facie showing that the accuser had
probable cause,74 rebuttable by proof that the magistrate in fact
made the determination on some other ground.75 The requirement
of favorable termination of the criminal proceeding bars the
accused who is found guilty at trial and does not succeed in
reversing the conviction; but even if the conviction is reversed on
appeal, the now-reversed guilty finding has been treated as
establishing prima facie evidence of probable cause.76
1032
Judge and jury. Under the traditional view, the jury determines
any disputed facts bearing on probable cause, but the question
whether the facts so determined count as probable cause is a
question of law for the judge.77 Some courts reject this view and
leave both the facts and the ultimate issue of probable cause to the
jury;78 others sometimes use an ambiguous formulation that leaves
the roles of judge and jury in doubt.79
The malicious prosecution plaintiff must prove, in addition to
the other elements, that the now-defendant instigated the earlier
prosecution for an improper purpose—for a purpose other than to
bring the accused to justice.80 This is the element traditionally
referred to as “malice,” and is for the jury to decide.81
Mixed motives. All tests that turn on the defendant’s supposed
motive or purpose raise difficult problems, first because motives
can only be guessed at from actions, and second because motives
are usually quite mixed. The Restatement Second of Torts resolves
the mixed-motive problem by providing that the accuser must act
“primarily” for a purpose other than to bring the supposed offender
to justice.82 For example, there is a good deal of abuse of the
criminal process by merchants who use it as a means of collecting
bad checks, but the fact that a merchant prosecutes those who
bounce checks partly because the merchant hopes to collect the
check is not enough to show malice.83 The primary-purpose test
may be less suited than a but-for test used in some other
circumstances. Under a but-for test, the prosecutor’s supposed
improper purpose would not count against him if he would have
instituted the prosecution even without the improper purpose.84
Improper purposes. The mixed-motive problem aside, the
Restatement Second of Torts takes the view that any purpose other
than to bring the offender to justice is improper and establishes the
“malice” element of malicious prosecution. Use of the criminal
process solely to enforce a supposed debt or to extort money from
the accused shows improper purpose,85 and so does personal
hostility or ill-will,86 or impersonal
1033
hostility based upon race or other group characteristics.87 In

some of the cases malice seems more like oppressive behavior or
abuse of power or authority than anything else.88 Courts can easily
infer malice if the accuser knowingly asserts falsehoods. On the
other hand, it is difficult to see how he can be malicious if he
honestly reports facts pointing toward guilt, even if he does not
believe the inference of guilt. The Restatement flatly states,
however, that the accuser who does not believe in guilt is
necessarily malicious.89 This seems wrong because an honest
citizen can believe it is his duty to report facts even if he does not
believe their negative implications.90
Relation to probable cause. Courts sometimes appear to confuse
or conflate probable-cause and malice issues. The most serious
problem arises in applying the old saw that while malice is not
evidence of a lack of probable cause, a lack of probable cause is
evidence of malice.91 The inference of malice from a want of
probable cause has been permitted even when the want of probable
cause itself is merely “presumed” from a grand jury’s refusal to
indict.92 But if malice or improper purpose can be inferred any
time probable cause is lacking, then malice does not look like an
independent element of the plaintiff’s case at all. The Restatement
has accordingly attempted to limit the inference to cases in which
the lack of probable cause shows the accuser did not believe the
charges he brought.93 Perhaps, as Judge Linde argued, it would be
more accurate to say that the same evidence that shows a want of
probable cause might sometimes show malice as well.94 For
example, when an accuser reports incriminating evidence he knows
to be false, the facts might permit a reasonable inference of
instigation, malice, and a want of probable cause. But not
necessarily. If probable cause has been shown to exist by other
evidence, the accuser’s knowing falsehoods may permit an
inference of his malice, but they prove nothing about probable
cause.95
The malicious-prosecution plaintiff must show not only that the
criminal prosecution of which he complains has been terminated,
but also that it has been terminated in his favor.96 The
requirement of termination serves to minimize a threat of civil
liability that might chill testimony in the criminal action and to
avoid litigation that may become needless if a conviction is
obtained and upheld. The additional requirement that termination
must be in the accused’s favor of the accused serves a different
purpose. If the accused was convicted, a malicious prosecution
action should be impermissible because courts should not be
permitted to collaterally attack the conviction.97
1034
An acquittal of the accused after a trial or on a dispositive

motion is of course a termination favorable to the accused.98 Short
of that, courts have looked for dispositions that tend to show the
accused’s innocence or at least a determination that a criminal case
could not be proved,99 saying that a mere procedural victory would
not suffice.100 Maybe it would be more accurate to say that a
disposition of the criminal proceedings that probably entailed some
judgment about the merits will count as a favorable termination, or
at least that the dismissal of the criminal prosecution was not
inconsistent with innocence.101 Under such a rule, a favorable
termination may sometimes occur even though the termination is
not “final” because the prosecution can be revived or reinstituted.
For example, if a magistrate determines that no probable cause
has been shown and discharges the accused, jeopardy has not
attached and the same charge may be laid again.102 Nevertheless,
a magistrate’s discharge and a grand jury’s refusal to indict can
count as sufficient terminations.103
When the criminal prosecution is terminated because of a mere
lapse of time or because the accused has left the jurisdiction,104
because of a compromise settlement,105 or for other reasons that do
not bear even remotely upon the merits,106 courts have held that
the termination is not favorable to the accused, with the result that
he cannot bring a malicious prosecution action based upon the
criminal proceeding. Sometimes a nol pros reflects a compromise or
mercy or some other reason for abandoning the prosecution that
does not touch the merits and hence leaves the accused without a
favorable termination.107 Some courts have assumed that the
unexplained nol pros is a compromise;108 others have permitted or
required evidence to show the reasons for the nol pros.109 Still
others have tacitly or expressly treated a nol pros as a termination.
1035

Aside from immunities110 and ordinary defenses such as the
statute of limitations,111 three special defenses may be raised: guilt
in fact, release, and advice of counsel.
Guilt in fact. If the defendant instigated a prosecution of the
plaintiff without probable cause but with malice, and the plaintiff
was fully vindicated by a favorable termination, it is still possible
that the plaintiff was in fact guilty of the crime for which she was
prosecuted or one quite similar. Authorities agree that in such a
case, the plaintiff cannot recover for malicious prosecution.112 The
rule is essentially similar to the rules applied in defamation and
false arrest cases, relieving the defendant of all liability when the
defamation turns out to be true113 or the arrest justified because
the arrested person is guilty in fact.114 A different rule applies to
the case of a discriminatory discharge from employment, which is
not justified by the later discovery of non-discriminatory grounds
for discharge; but even here, the employer-accuser is liable only for
a limited remedy.115 The guilt-in-fact rule does not exactly permit
a collateral attack, since the earlier criminal action only
determines that guilt has not been proven beyond a reasonable
doubt, while the later malicious prosecution suit determines that
guilt is established by a preponderance of the evidence.
Release. Public prosecutors not uncommonly agree to drop
criminal charges in exchange for the accused’s release of all claims
against the prosecutor and others who have participated in the
prosecution. If the release is valid, it forecloses legitimate
complaints as well as frivolous complaints of malicious prosecution
or analogous civil rights violations. States have split as to whether
such releases are invalid per se.116 The Supreme Court of the
United States, in a decision governing federal civil rights claims for
malicious prosecution, took the position that such releases were
not necessarily invalid, but might be held so in particular cases, as
where there is prosecutorial misconduct.117 Following that lead,
federal courts have developed a small jurisprudence of release
law.118 They have held that the prosecutor would be required to
show a public interest favoring the release in the particular case so
that a blanket policy of obtaining releases in all cases of abandoned
prosecution would not be valid.119 They have also
1036
considered whether particular releases were given voluntarily,

taking into account a variety of factors. The release is less likely to
be voluntary if the accused signs it while in custody, is not
represented by counsel, is unsophisticated or is not fully informed
about its effects.120 Several courts have said that the burden of
proof to show the validity of the release is upon the prosecutor.121
Where police misconduct is part of the underlying civil rights
claim, the release may deserve special scrutiny, since police might
file charges as bargaining chips when their own misconduct is
called into question.122
Advice of counsel. The defendant in a malicious prosecution
action can also escape all liability by pleading and proving as an
affirmative defense that the action was commenced or continued on
the advice of counsel.123 In order for the defense to be established,
however, the defendant must show that he gave counsel all of the
relevant information with respect to the claim.124 The dominant
rationale is that acting in good faith on the advice of counsel after
giving the lawyer such information establishes that the defendant
acted with probable cause.125 Acting on the advice of counsel is a
complete defense even where counsel’s advice turned out to be
entirely wrong.126
C. WRONGFUL CIVIL LITIGATION
§ 39.8 Elements
Wrongful institution of a civil action is actionable under rules
similar to those for malicious prosecution of a criminal proceeding.
The policy of protecting the right to resort to court, analogous to, if
not grounded in, the First Amendment’s right to petition
government, applies to protect a certain amount of wrongful civil
litigation, a point recognized under federal law as well as under
the common law.127 On the other hand, wrongful civil suits can
destroy a livelihood, devastate a business, or chill debate on public
issues.128 Balance between these competing and core concerns is
critical, and the rules aim with varying success at striking that
balance.
The analogy to malicious prosecution led lawyers and courts to
focus on wrongful initiation or continuation of civil proceedings or
wrongful assertion of a counterclaim,129 rather than wrongful or
unjustified defensive tactics.130 Under the traditional view, then,
1037
the elements of the plaintiff’s claim for wrongful civil

proceedings were variations on those in malicious prosecution.131
The plaintiff can recover if the defendant had participated in
instigating or continuing132 a civil proceeding, including a
declaratory judgment action133 or even a quasi-judicial
administrative proceeding,134 without probable cause and for an
improper purpose, provided that the proceeding had been
terminated favorably to the now-plaintiff. As a matter of pleading,
conclusory allegations may be insufficient so that the plaintiff may
be required to state facts from which a want of probable cause and
malice could be inferred.135 A substantial number of states add a
requirement not found in malicious criminal prosecution cases: the
plaintiff cannot recover unless she suffers special injury, usually
meaning that her person or property was seized in the former
action.136
Circumventing rules by pleading other torts. As with the
malicious prosecution of a criminal charge,137 the plaintiff cannot
avoid the burden of proving these elements by claiming on a theory
of negligence.138 The protections for court access erected by the
rules for wrongful litigation claims presumably cannot be avoided
by framing the claim on a theory of defamation, privacy invasion,
outrage, interference with contract, or professional negligence of
lawyers, either. In fact, courts have rejected such claims under the
rules for those particular torts.139 But some courts have allowed
plaintiffs to circumvent the rules protecting access to courts. If the
plaintiff alleges that a lawsuit caused emotional harm140 or
interference with prospective economic relations,141 a few cases
have allowed the claim to proceed without evidence that the
lawsuit was brought without probable cause. For this reason, it is
important to recognize straightforwardly that no alternative theory
can be permitted to subvert the rules by permitting liability for
maintaining a suit when the conduct involved would not show
wrongful civil litigation.142 The original suitor’s lawyer owes a duty
of care only to his client, so although he may be liable for malicious
prosecution or abuse of process, he is not liable to his client’s
adversary for negligence.143 Taken together, these rules are a
formidable barrier to recovery in many cases. For example, almost
all of the physicians’ countersuits
1038
against lawyers and former patients for bringing unjustified

medical malpractice actions have been defeated by at least one of
these rules.144
The special-injury rule aside, one of the chief differences
between the claim for malicious prosecution and the claim for
wrongful civil litigation is that “probable cause” in the civil context
means only that the original suitor must believe in the facts he
asserts and that a civil claim is plausible, or he has a good chance
at establishing the case to the satisfaction of judge and jury,145 or
that he “may” have a claim.146 In this respect, he may rely upon
advice of apparently competent and unbiased counsel after full
disclosure of all relevant facts.147 When the lawyer himself is sued
for his part in instigating the former civil action, the lawyer is held
to a kind of objective professional standard148 and is liable only if
the claim he fosters is not legally tenable.149 This lenient approach
to probable cause reflects the fact that in American litigation
courts are constantly drawing distinctions, modifying formulations
of rules, and recognizing new claims and defenses, so that even
arguments that have been previously rejected are not necessarily
untenable, and the further fact that much of the evidence in
complex cases must be developed by discovery rather than before
suit is commenced.
Effect of rulings in the underlying suit. As in criminal cases,150
rulings in the underlying first suit may tend to establish or
disestablish the existence of probable cause to bring that suit, and
thus directly affect the malicious prosecution claim. Subject to
limited exceptions,151 courts say that when the first-suit plaintiff
won on the merits of that suit, his win conclusively establishes that
he had probable cause to pursue that suit, even if the plaintiff’s
judgment is later reversed on appeal.152 When the first-suit
plaintiff survives a motion for summary judgment but ultimately
loses the case, authorities differ a little. A California case has said
that survival of a defendant’s summary judgment
1039
motion in the first case is “persuasive evidence” that the

plaintiff had probable cause;153 an Arizona case held that the first-
suit plaintiff’s survival of a summary judgment motion is evidence,
but not conclusive evidence, bearing on probable cause.154
The first-suit plaintiff’s loss on the merits does not show a want
of probable cause to bring the suit.155 Similarly, when the first-suit
plaintiff loses on summary judgment rather than on a jury verdict,
his loss does not ordinarily establish as a matter of law that he
lacked probable cause to sue.156 This is obviously correct where the
summary judgment was granted on procedural grounds, such as
the statute of limitations or lack of standing, since that is not a
“favorable termination on the merits” at all.157 Sometimes,
however, the trial court’s ruling on a dispositive motion may
furnish some degree of evidence on the issue,158 and some other
kinds of determinations made by judge or jury in the first suit may
imply that the first-suit plaintiff lacked probable cause.159
The requirement of improper purpose (or “malice”) in wrongful
civil litigation actions is again similar to its analog in malicious
prosecution cases. The suitor is not liable for his failed suit unless
he brought it for an improper purpose—that is, “primarily” for any
purpose other than securing proper adjudication of the claim.160
Spite itself is not enough; few tort suits are brought without a
degree of rancor.161 A motive that includes a spiteful desire to
harass or a calculated desire to extort a settlement by a suitor who
knows that the facts do not support his claim will suffice,
however.162 A complaint based upon knowing or reckless
falsehoods shows improper purpose, but mere negligence of a
lawyer in failing to discover that he has no case does not.163 At the
same time, purposeful avoidance of the evidence might show a
knowing or reckless falsehood in libel cases;164 a lawyer’s complete
lack of evidence in support of a claim might be understood to show
that his motive for suit was primarily extortionate, not colorably
legitimate. It should go without saying that a lawyer’s contingent
fee arrangement assuredly does not show malice in bringing the
suit.165 As in the malicious prosecution
1040
cases, courts say that malice may be inferred from a want of

probable cause.166 The same objections can be raised as in
malicious prosecution cases.
Termination of the former civil suit is important in two ways.
First, the wrongful litigation claim accrues at termination of the
former suit, so that the statute of limitations begins running at
that time.167 Second, favorable termination of the former suit is a
substantive element of the plaintiff’s claim for wrongful
litigation.168 The termination requirement leads courts to say that
wrongful civil litigation cannot be challenged by a counterclaim in
the same action, since that litigation could not have terminated
when the counterclaim is filed.169
Favorable termination is not necessarily a termination on the
merits, but it is usually a termination that tends to reflect on the
probable merits. A disposition of the former suit that is on appeal
is not regarded as a sufficient termination until the appeal is
decided.170 Otherwise, however, a determination on the merits that
the defendant in the prior suit is not liable will be sufficient to
show favorable termination, whether the termination is based
upon trial or upon summary judgment or other motion.171 But
courts have said that a dismissal of the prior suit because the
statute of limitations has run does not reflect the innocence of the
defendant in the former suit and hence does not show favorable
termination.172 The Restatement view is that a dismissal for
failure to prosecute the former suit is a sufficiently favorable
termination, and that a withdrawal or voluntary dismissal by the
plaintiff in that suit is likewise.173 Some courts have taken a
contrary view on the latter issue, holding that a voluntarily
dismissal without prejudice is not a favorable termination, because
it is “not an adjudication on the merits of the case but is merely a
procedural option available to plaintiffs as a matter of right.”174
1041
§ 39.12 Special-Injury or Special-Grievance
Requirement
While most courts do not require the plaintiff in a wrongful civil
litigation claim to show any “special injury” caused by the
litigation to recover,175 a substantial number have imposed such a
requirement.176 And many cases that purport to ignore special-
injury requirements are actually decided on facts consistent with
such requirements.177 Special injury must be something more than
the expense, distress, and reputational loss that is ordinarily
suffered as a result of wrongful litigation.178 Rather, the
interference must result directly from the suit itself or the court’s
pre-judgment orders.179 The wrongful litigation claim is allowed
when the defendant has repeatedly brought unjustified suits.180
It is also allowed when a single suit directly results in pre-
judgment impairment or suspension of the plaintiff’s rights in
property, income, or credit, or detention of the plaintiff’s person.181
Unjustified insanity proceedings are actionable, at least when they
constrain the plaintiff’s person for examination or otherwise,182
while unjustified bankruptcy proceedings are actionable because
they put the plaintiff’s property under the control of the
bankruptcy court.183 Maliciously obtained provisional remedies
such as injunctions, replevin, garnishment, attachment and
receivership may give rise to liability.184 Similar considerations
might control when the original suitor files an
1042
unjustified lis pendens,185 which clouds or encumbers the

plaintiff’s title to property and impairs its marketability.
Consequently, some courts have permitted the victim to recover186
on a wrongful litigation or some other theory187 when a lis pendens
is filed improperly or without probable cause. In the case of lis
pendens, however, some other courts have rejected the action on
the ground that the special-injury rule requires physical seizure188
or on the ground that the filing of a lis pendens is absolutely
privileged as a judicial act, at least where it is based upon
underlying litigation that claims title to the disputed land.189
D. ABUSE OF PROCESS
§ 39.13 Elements
The gist of the abuse of process tort is the misuse of legal
process primarily to accomplish a purpose for which it was not
designed,190 usually to compel the victim to yield on some matter
not involved in the suit, or to harass litigation opponents by clearly
wrongful conduct.191 The victim might even be a person who is not
sued at all but who is directly affected by the process, as where an
injunction forbids the conduct of nonparties192 or a lis pendens ties
up the property of a person against whom no suit has been filed.193
The abuse of process tort could readily be integrated with the
malicious prosecution and wrongful litigation torts,194 but the
traditional view treats them as separate torts with distinct
elements. If the plaintiff can show instigation of a suit for an
improper purpose without probable cause and with a termination
favorable to the now-plaintiff, she has a malicious prosecution or a
wrongful litigation claim, not a claim for abuse of process.
Conversely, if the plaintiff cannot show those elements, she may
still have a good abuse of process claim.195 Specifically, the abuse
of process claim permits the plaintiff to recover without showing
the traditional absence of probable cause for the original suit and
without showing favorable termination of that suit. The abuse of
1043
process claim may also permit the plaintiff to avoid the special-
injury requirement applied in some wrongful litigation cases.
The elements of the abuse of process claim can be stated in
slightly different ways, but, however stated, they are both vague
and simple: first, the original suitor must have a primary purpose
to use the criminal or civil process for an end for which it was not
designed; and second, he must use that process in a way not proper
in the regular course of the proceeding,196 or in other words, bad
motive plus some use of the court’s process. More simply, “a court
should ask whether there has been a ‘perversion’ of the process, or,
whether a legal process has been used ‘as a tactical weapon to
coerce a desired result that is not the legitimate object of the
process.’ ”197 The First Restatement limited the tort to cases of
pecuniary harm,198 but that requirement was dropped in the
Second Restatement.199 Some courts add that actual seizure of
person or property is also required,200 but in most cases motive or
purpose is the centerpiece of the tort.201 In one of its common
versions, the suitor attempts to use the suit itself or some process
issued after suit has commenced as a form of extortion.202 For
example, a suitor may attach all the plaintiff’s property so that the
plaintiff cannot operate her business; the suitor then explicitly or
implicitly offers to drop the attachment if the plaintiff will pay the
suitor money she does not owe.203
§ 39.14 The Meaning of “Process” and Examples of
Abuse
In its narrowest sense, “process” refers to enforceable court
orders, although many of these are in fact issued routinely by the
clerk of court. These include the summons, subpoenas,
attachments, garnishments, replevin or claim and delivery writs,
arrest under a warrant, injunctive orders, and other orders directly
affecting obligations of persons or rights in property. Abuse of any
of these processes is actionable upon appropriate proof.204 But in
this context, “process” can refer to judicial procedures of
1044
various kinds that do not actually entail a court order or a

writ.205 Some courts have in mind the narrowest conception of
process and hold that filing a wrongful lis pendens is not a tort
because lis pendens is not a process.206 Other courts, taking
process more broadly to include all the procedures in the litigation
process, include lis pendens as process, so that abuse is
actionable.207 Such a view holds that repeated filings in the wrong
venue,208 and even abusive discovery techniques or oppressive
litigation tactics, can be an abuse of process.209
Abuse by coercive process plus offer to abandon it for illegitimate
objective. Abuse appears in several forms. In the most commonly
mentioned case, the original suitor offers to release or withdraw a
justly procured process such as attachment or arrest in exchange
for some collateral advantage unrelated to the lawsuit or which the
court itself would be powerless to order.210 For example, the
original suitor may procure an arrest of the plaintiff pursuant to a
warrant and then offer to have the prosecution dismissed if the
plaintiff will work in the suitor’s fertilizer factory. Since the only
purpose of a criminal prosecution is punishment of crime, the use
of the prosecution as a means of extorting payment of a debt is an
abuse for which the action lies, even if the prosecution itself was
proper.211 Even if the offer for an illicit exchange is not explicit, the
improper purpose to release the process in exchange for improper
benefit may be inferred from what is said or done.212 The gist of
this form of abuse of process is that the original suitor attempts to
use the court’s process to gain an advantage to which he is not
entitled. If he uses the court’s process to obtain the very thing to
which he is entitled, his motive for doing so and his plans for using
his lawful entitlement are irrelevant.213
Other forms of abuse of process. In a number of cases, abuse of
process can be found even though the original suitor makes no
express extortionate demand at all. At least three patterns or
explanations can be found for these cases. (1) Excessive
attachments214 and wrongful lis pendens215 often amount to an
abuse of process regardless of any
1045
extortionate demand.216 Many or all of these can be explained
on the ground that the suitor’s act is, in the circumstances, an
implicit proposal to abandon the process in exchange for an obvious
quid pro quo. (2) In other cases, the process itself seems to be
inherently or definitionally wrongful and that seems to be
sufficient, even if the suitor commits no further act. Wrongful lis
pendens and excessive-attachment cases may fall in this category
as well as in the category of implicit threats. The abuse in such
cases lies in the “illegitimate use of the attachment process to tie
up more property than is reasonably necessary to secure the
attaching creditor’s claim,” and no improper threat or bargaining is
required.217 Even a process server’s falsification of an affidavit of
service without more has been held to be an abuse of process.218 (3)
In some cases intended detriment to the adversary without any
necessary benefit to the suitor may suffice,219 as where the suitor
repeatedly garnishes the plaintiff’s wages solely to induce the
harassed employer to fire the plaintiff,220 or the suitor subpoenas
all the teachers in a school system to impose financial hardship on
the school,221 sues debtors in the wrong venue in hopes of
obtaining more default judgments,222 or, in the case of a defendant
in the original suit, repeatedly and illegitimately delays for unfair
advantage.223 In the category of illegitimate and harassing
litigation tactics, even the opposing attorney may be liable to the
plaintiff for the abuse of process.224
§ 39.15 Collateral Advantage and the “Act After”
Requirement
Collateral advantage. When the claim for abuse of process rests
upon the suitor’s attempt to use the court’s process to extort some
special advantage, courts usually say that the advantage sought
must be collateral, meaning that it is not a benefit to the suitor
that the process was designed to secure. However, emphasis on the
collateral character of the advantage sought can be misleading.
First, the advantage need not always be collateral in the sense that
it would be outside the court’s power to grant. An attempt to gain a
nuisance-value settlement for a bad medical malpractice suit was
regarded as sufficient in one case,225 although a money judgment
for the same small amount would easily be within the court’s
jurisdiction. And there is nothing collateral about harassing the
adversary in litigation, but serious misbehavior in doing so may
nonetheless count as an abuse of process.226 On the other side of
the coin, even when the
1046
demand is for collateral advantage, it is not necessarily a

wrong. A collateral demand may reflect nothing more than an
insistence upon a comprehensive settlement of all disputes among
the parties. In a California case,227 a husband had the wife’s
property seized under claim-and-delivery or replevin proceedings.
He then offered to drop the proceedings if the wife would drop her
suit to establish the validity of their marriage. That was held an
abuse of process. The husband’s offer clearly sought an advantage
that was collateral to his claim-and-delivery suit, and perhaps the
detailed facts warranted liability. But the case can hardly reflect a
rule of law that makes it tortious to work out a comprehensive
settlement of all disputes between the parties.228
Act after process has issued. A number of courts have said that
abuse of process is shown by showing the original suitor’s ulterior
purpose and his willful use of the process in a way not proper in
the regular conduct of the proceeding or words to that effect.229 As
such formulations imply, the very issuance of the process may be
abusive in some cases without additional acts.230 But courts have
repeatedly quoted or paraphrased231 Prosser’s comment232 that the
defendant is not liable if he has done nothing more than to carry a
process to its authorized conclusion, even if he acted with bad
intentions. Or similarly courts have said that abuse after issuance,
not merely issuance itself, is required to establish the claim.233
That observation is similar to the added requirement adopted in
some courts that the suitor must commit some further act after the
process has issued.234 As shown by those cases allowing a recovery
for excessive attachment or wrongful lis pendens, however, the
requirement of a post-process act has no place when the process is
itself wrongful.
E. REFORMS AND NEW DIRECTIONS
Many abuse of process cases reflect the fact that in our legal
system, individuals not only have the power to invoke legal
processes but to do so without supervision by responsible judges or
notice to the opposing party. In 1991, the Supreme Court held that
a statute permitting ex parte attachment before judgment was
unconstitutional for want
1047
of notice to and opportunity to be heard by the owner.235 Notice

to the owner is the first step in early termination of an abusive
suit. A much more aggressive solution calls for early dismissal in
certain cases and some states have so provided in the case of the
so-called SLAPP236 suits. These are suits brought against
individuals whose exercise of speech or petitioning rights237
allegedly causes tortious harm to the plaintiff.238 Some states put
these suits on a fast track, terminating discovery early and making
dismissal especially easy.239 California has said that there is no
exemption for malicious prosecution suits under its anti-SLAPP
statute, so the malicious-prosecution plaintiff must show a
probability of winning, else suffer dismissal.240 Some of the
statutes are themselves subject to abuse, but, right or wrong, they
point to the possibility that abusive litigation can be dealt with at
the point of abuse, not later in a tort suit.
Sanctions during trial. A closely related means of dealing with
abusive litigation tactics is to permit sanctions for abuse during
the trial itself. Sanctions can include awarding attorney’s fees to
the victim for the costs of dealing with abusive process such as
excessive attachment or even harassing delay, for example.241 To
the extent that sanctions are imposed, separate suits for abusive
litigation may be unnecessary and courts might even bar such suits
where sanctions have proved adequate.242
Counterclaims. If dealing with abuse when it occurs rather than
later is a good idea when it comes to sanctions or dismissal, it is
also a good idea to permit counterclaims in civil cases for wrongful
litigation.243 Under the present rule, a counterclaim can be
asserted for abuse of process but not for wrongful litigation. That
prohibition in turn results from the requirement that the
unjustified original action must have terminated favorably to the
now-plaintiff. The favorable termination rule makes good sense
when the plaintiff complains of an unjustified criminal prosecution,
but it serves no useful purpose when the plaintiff complains of a
former civil suit. On the contrary, the original suit is by far the
best place to resolve the issues, although bifurcation of trial might
be required when a particular counterclaim raises serious dangers
of prejudice.
1048
Alternatives to the counterclaim are possible. For instance,

courts could award attorney’s fees for wrongful litigation on
motion, as part of an award of costs or otherwise, and could provide
that if such fees are claimed and awarded, no separate tort action
could be brought for the wrongful litigation or abuse of process.
________________________________
1 An aggrieved plaintiff may be able to bring a federal
constitutional or civil rights claim under narrow circumstances. See 3
Dobbs, Hayden & Bublick, The Law of Torts § 597 to 600 (2d ed. 2011 &
Supp.).
2 See Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 872, 765
P.2d 498, 501, 254 Cal.Rptr. 336, 340 (1989) (claim is “disfavored” because
of its chilling effect); Richey v. Brookshire Grocery Co., 952 S.W.2d 515,
517 (Tex. 1997) (“Malicious prosecution actions involve a delicate balance
between society’s interest in the efficient enforcement of the criminal law
and the individual’s interest in freedom from unjustifiable and oppressive
criminal prosecution.”).
3 See § 37.11.
4 See Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 1114, 75
L.Ed.2d 96 (1983) (“A witness’s apprehension of subsequent damages
liability might induce two forms of self-censorship. First, witnesses might
be reluctant to come forward to testify. And once a witness is on the stand,
his testimony might be distorted by the fear of subsequent liability.”).
5 See, e.g., K.D. v. Bozarth, 313 N.J.Super. 561, 713 A.2d 546 (App.
Div. 1998).
6 Marrogi v. Howard, 805 So.2d 1118 (La. 2002) (math errors, no
immunity); LLMD of Mich., Inc. v. Jackson-Cross Co., 559 Pa. 297, 740
A.2d 186 (1999) (same); contra, Bruce v. Byrne-Stevens & Associates
Engineers, Inc. 113 Wash.2d 123, 776 P.2d 666 (1989) (engineer retained
to show cost of repairs grossly understated costs, resulting in inadequate
jury verdict, retained witness is immune like others).
7 E.g., Witzke v. City of Bismarck, 718 N.W.2d 586 (N.D. 2006);
Cooper v. Parker-Hughey, 894 P.2d 1096 (Okla. 1995); Wilson v. Bernet,
218 W.Va. 628, 625 S.E.2d 706 (2005) (adverse witness in child-custody
proceeding immune).
8 Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96
(1983).
9 Van de Kamp v. Goldstein, 555 U.S. 335, 129 S.Ct. 855, 172
L.Ed.2d 706 (2009); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976) (immunity of prosecutor extends to § 1983 actions).
10 Crawford v. Busbee, 164 Ga.App. 559, 298 S.E.2d 278 (1982).
11 The immunity follows the prosecutor’s function rather than his
status. Van de Kamp v. Goldstein, 555 U.S. 335, 129 S.Ct. 855, 172
L.Ed.2d 706 (2009). When the prosecutor becomes a complaining witness,
the immunity becomes qualified. Kalina v. Fletcher, 522 U.S. 118, 118
S.Ct. 502, 139 L.Ed.2d 471 (1997).
12 Silberg v. Anderson, 50 Cal.3d 205, 786 P.2d 365, 266 Cal.Rptr.
638 (1990); McKinney v. Okoye, 282 Neb. 880, 806 N.W.2d 571 (2011);
Rainier’s Dairies v. Raritan Valley Farms, 19 N.J. 552, 117 A.2d 889
(1955).
13 Thus some courts invoke the litigation privilege in abuse of
process claims, at least in the form that depends upon conduct occurring
after suit is commenced. See § 37.11. Where a lawyer is sued for abuse of
process, and the pleadings allege no act independent of the legal process
itself and no act “beyond the scope of her representation of the client or in
her own interests,” the judicial privilege may protect the lawyer from
liability even where the conduct occurred before a judicial proceeding has
commenced. See Moss v. Parr Waddoups Brown Gee & Loveless, 285 P.3d
1157 (Utah 2012) (lawyers obtained civil discovery orders authorizing
search).
14 E.g., Henry v. Deen, 310 N.C. 75, 310 S.E.2d 326 (1984); see §§
44.4 to 44.7.
15 However, some states may provide a non-traditional immunity for
officers guilty of malicious prosecution. See Cal. Gov. Code § 821.6.
16 Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987); Baglini v.
Lauletta, 315 N.J.Super. 225, 717 A.2d 449 (1998).
17 See Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 765 P.2d
498, 254 Cal.Rptr. 336 (1989) (recognizing potential liability); Manuel v.
Wilka, 610 N.W.2d 458 (S.D. 2000) (summary judgment for attorney held
improper); Vazquez v. Reeves, 138 Or.App. 153, 907 P.2d 254 (1995).
18 Tri-State Hospital Supply Corp. v. United States, 341 F.3d 571
(D.C. Cir. 2003); Ziobron v. Crawford, 667 N.E.2d 202 (Ind. Ct. App. 1996).
19 Hewes v. Wolfe, 74 N.C.App. 610, 330 S.E.2d 16 (1985).
20 Thrift v. Hubbard, 974 S.W.2d 70 (Tex.Ct.App. 1998) (almost
$10,000 in lost earnings during court appearances).
21 Kleinschmidt v. Morrow, 642 A.2d 161 (Me. 1994) (lost rental
value resulting because of excessive lien claim); Ruiz v. Varan, 110 N.M.
478, 797 P.2d 267 (1990) (“nominal” damages of $5,000 when wrongful lis
pendens clouded title but did not result in any loss of use).
22 Avildsen v. Prystay, 204 A.D.2d 154, 611 N.Y.S.2d 188 (1994).
23 E.g., MTW Inv. Co. v. Alcovy Properties, Inc., 228 Ga.App. 206,
491 S.E.2d 460 (1997) (land tied up by lis pendens, but owner’s claims that
he would have subdivided land and made profit was too speculative).
24 Papa v. City of New York, 194 A.D.2d 527, 598 N.Y.S.2d 558
(1993); Junior Food Stores, Inc. v. Rice, 671 So.2d 67 (Miss. 1996).
25 E.g., Martinez v. The Port Authority of New York and New Jersey,
445 F.3d 158 (2d Cir. 2002); K-Mart Corp. v. Kyles, 723 So.2d 572 (Ala.
1998); Ford Motor Credit Co. v. Hickey Ford Sales, Inc., 62 N.Y.2d 291,
465 N.E.2d 330, 476 N.Y.S.2d 791 (1984).
26 E.g., Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324
Ark. 361, 922 S.W.2d 327 (1996); Alamo Rent-A-Car, Inc. v. Mancusi, 632
So.2d 1352 (Fla. 1994).
27 See §§ 34.4 to 34.6.
28 This can be broken into two elements: (a) a prosecution must be
commenced, for example, a mere charge to authorities is not a
commencement; and (b) the accuser must be legally responsible for it. See,
e.g., McKinney v. Okoye, 287 Neb. 261, 842 N.W.2d 581 (2014). The latter
element reflects a requirement of both factual and proximate causation.
30 See Lawson v. Kroger Co., 997 F.2d 214 (6th Cir. 1993).
31 See LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).
33 See, e.g., Calhoun v. Bell, 136 La. 149, 66 So. 761 (1914).
35 Id. § 653, cmt. d (1977).
36 See State Farm Bureau v. Cully’s Motorcross Park, 366 N.C. 505,
742 S.E.2d 781 (2013) (police officer independently exercised his discretion
to prosecute an insured with information provided by insurer; insurer did
not instigate); see also Limone v. United States, 579 F.3d 79 (1st Cir.
2009) (merely providing false information to law enforcement in response
to official queries during an investigation is insufficient to constitute
instigating criminal proceedings).
37 Bankston v. Pass Road Tire Ctr., Inc., 611 So.2d 998 (Miss. 1992);
Lester v. Buchanen, 112 Nev. 1426, 929 P.2d 910 (1996); Restatement
Second of Torts § 653, cmt. g; see Dan B. Dobbs, Belief and Doubt in
Malicious Prosecution and Libel, 21 Ariz. L. Rev. 607 (1979) (arguing that
the citizen-accuser should be free to rely on officers to make the
appropriate decision).
38 Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672
(2003); Matthews v. Blue Cross and Blue Shield of Michigan, 456 Mich.
365, 572 N.W.2d 603 (1998).
39 Police officers, like others, are subject to liability for malicious
prosecution, unless they are performing purely prosecutorial duties. If
they initiate a criminal proceeding by presentation of false statements, or
by withholding exculpatory information from the prosecutor, for example,
they are clearly instigators. E.g., Martin v. City of Albany, 42 N.Y.2d 13,
364 N.E.2d 1304, 369 N.Y.S.2d 612 (1977).
40 E.g., Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988).
41 Papa John’s Intern., Inc. v. McCoy, 244 S.W.3d 44 (Ky. 2006)
(false statement must be made intentionally or there is no tort of malicious
prosecution); Lester v. Buchanen, 112 Nev. 1426, 1429, 929 P.2d 910, 913
(1996) (defendant “cannot be held liable for commencing the criminal
action because they merely reported information they believed to be true”);
Restatement Second of Torts § 653, cmt. g (1977) (information must be
“known to be false”).
42 E.g., Cedars-Sinai Med. Ctr. v. Superior Court, 206 Cal.App.3d
414, 253 Cal.Rptr. 561 (1988).
43 See Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 972
A.2d 1112 (2009) (lack of probable cause is the “essence” of the malicious
prosecution claim, and plaintiff must establish it).
44 The issue is whether the probable cause existed for the prior
proceeding as a whole, as opposed to each specific claim in that proceeding.
See, e.g., Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 972 A.2d
1112 (2009); Fleetwood Retail Corp. of New Mexico v. LeDoux, 142 N.M.
150, 164 P.3d 31 (2007).
45 E.g., Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d
31 (1989); Restatement Second of Torts § 669A (1977). Similarly, evidence
that the accuser misstated or withheld facts in making a report to the
police may establish malice, but it does not establish a want of probable
cause. First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466 (Tex.
2004).
46 E.g., Adams v. Sussman & Hertzberg, Ltd., 292 Ill.App.3d 30, 684
N.E.2d 935, 225 Ill.Dec. 944 (1997); Bacon v. Towne, 4 Cush. (58 Mass.)
217 (1849).
47 E.g., Strickland v. University of Scranton, 700 A.2d 979 (Pa.Super.
1997).
48 See Lawson v. Kroger Co., 997 F.2d 214 (6th Cir. 1993) (“without
probable cause to believe the facts upon which the claim was based”)
(Tennessee law); Pallares v. Seinar, 407 S.C. 359, 756 S.E.2d 128 (2014)
(“[P]robable cause exists if the facts and circumstances would lead a
person of ordinary intelligence to believe that the plaintiff committed one
or more of the acts alleged in the opponent’s complaint.”).
49 See Restatement Second of Torts § 662, Ill. 1 (1977) (based on
Parli v. Reed, 30 Kan. 534, 2 P. 635 (1883)).
50 See id. § 662, cmt. i (limiting the mistake of law defense to such
cases as those in which a statute that is facially valid is later held
unconstitutional).
51 Gustafson v. Payless Drug Stores Northwest, Inc., 269 Or. 354,
525 P.2d 118 (1974).
52 Cf. Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271
(1986) (on similar facts).
53 Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988).
54 Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 972 A.2d
1112 (2009).
55 Branson v. Donaldson, 206 Ga.App. 723, 426 S.E.2d 218 (1992).
56 Strickland v. University of Scranton, 700 A.2d 979 (Pa.Super.
1997); Restatement Second of Torts § 666 (1977). Most courts regard this
as a defense, on which the defendant bears the burden of proof. See § 39.8.
57 E.g., Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex.
1997).
58 Miller v. East Baton Rouge Parish Sheriff’s Dept., 511 So.2d 446
(La. 1987). On the other hand, if an officer learns about a crime from a co-
perpetrator in connection with that person’s confession, courts may view
this information as “highly credible” and “more reliable” than other types
of statements, because it is a statement against penal interest. See Gibson
v. State, 758 So.2d 782 (La. 2000).
59 Van v. Grand Casinos of Mississippi, Inc., 767 So.2d 1014 (Miss.
2000).
60 E.g., Gray v. State, 624 A.2d 479 (Me. 1993) (evidence of mother’s
child abuse justified reasonable belief in her guilt, although some
therapists could pose alternative explanations for the evidence).
61 Matthews v. Blue Cross and Blue Shield of Michigan, 456 Mich.
365, 572 N.W.2d 603 (1998); Jordan v. Bailey, 113 Nev. 1038, 944 P.2d 828
(1997).
62 See § 39.3.
63 Bacon v. Towne, 4 Cush. (58 Mass.) 217, 238 (1849) (“Probable
cause is such a state of facts in the mind of the prosecutor as would lead a
man of ordinary caution and prudence to believe, or entertain an honest
and strong suspicion, that the person arrested is guilty.”).
64 Torian v. Ashford, 216 Ala. 85, 112 So. 418 (1927); see Hitson v.
Simms, 69 Ark. 439, 64 S.W. 219 (1901).
65 See Dan B. Dobbs, Belief and Doubt in Malicious Prosecution and
Libel, 21 Ariz. L. Rev. 607 (1980).
66 Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 765 P.2d 498,
254 Cal.Rptr. 336 (1989); Matthews v. Blue Cross and Blue Shield of
Michigan, 456 Mich. 365, 572 N.W.2d 603 (1998); Roberts v. Federal
Express Corp., 842 S.W.2d 246 (Tenn. 1992).
67 E.g., Banks v. Montogomery Ward & Co., Inc., 212 Md. 31, 128
A.2d 600 (1957); Shoemaker v. Selnes, 220 Or. 573, 349 P.2d 473 (1960).
See also H.D. Warren, Annotation, Acquittal, discharge, or discontinuance
of criminal charge as evidence of want of probable cause in malicious
prosecution action, 59 A.L.R.2d 1413 (1958).
68 Schnathorst v. Williams, 240 Iowa 561, 36 N.W.2d 739 (1949);
Tritchler v. West Virginia Newspaper Pub. Co., 156 W.Va. 335, 193 S.E.2d
146 (1972).
69 Thompson v. Harris, 603 So.2d 1086 (Ala. Civ. App. 1992).
70 Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003) (entry of
nolle prosqui, standing alone, is not evidence that probable cause was
lacking); Miessner v. All Dakota Ins. Assocs., Inc., 515 N.W.2d 198 (S.D.
1993) (nolle prosqui or abandonment creates no presumption); Roberts v.
Federal Express Corp., 842 S.W.2d 246 (Tenn. 1992) (grand’s jury’s refusal
to indict creates no presumption).
72 See Palmer Ford, Inc. v. Wood, 298 Md. 484, 471 A.2d 297 (1984).
73 See Davis v. McMillan, 142 Mich. 391, 105 N.W. 862 (1905)
(rejecting the presumption on the ground that an act that is not the
defendant’s cannot bind him).
74 E.g., Rothstein v. Carriere, 373 F.3d 275 (2d Cir. 2004); Miessner
v. All Dakota Ins. Assocs., Inc., 515 N.W.2d 198 (S.D. 1994).
75 E.g., Rodgers v. W.T. Grant Co., 341 So.2d 511 (Fla. 1976)
(magistrate bound the accused over because she would not release her
potential civil action; this was not a determination of probable cause).
76 E.g., Ex parte City of Gadsden, 718 So.2d 716 (Ala. 1998). Some
courts give it even greater weight. See Sundeen v. Kroger, 355 Ark. 138,
133 S.W.3d 393 (2003) (conviction is “conclusive evidence of probable
cause, even where the judgment is later reversed”).
77 Palmer Ford, Inc. v. Wood, 298 Md. 484, 471 A.2d 297 (1984);
Matthews v. Blue Cross and Blue Shield of Michigan, 456 Mich. 365, 381,
572 N.W.2d 603, 611 (1998); Van v. Grand Casinos of Mississippi, Inc., 767
So.2d 1014 (Miss. 2000); Restatement Second of Torts § 673(1) (1977).
78 Schnathorst v. Williams, 240 Iowa 561, 36 N.W.2d 739 (1949).
79 Courts often state that probable cause is for the judge unless facts
are not in dispute, but that if facts are disputed, the issue becomes one of
mixed law and fact, to be resolved by the jury. Thrifty Rent-A-Car v.
Jeffrey, 257 Ark. 904, 520 S.W.2d 304 (1975); Richey v. Brookshire Grocery
Co., 952 S.W.2d 515 (Tex. 1997). Conceivably such a statement means only
that the hard facts are to be resolved by the jury, after which the judge
decides probable cause on the basis of the jury’s factual determination.
81 E.g., Mitchell v. Folmar & Assoc., LLP, 854 So.2d 1115 (Ala.
2003); Nassar v. Concordia Rod and Gun Club, Inc., 682 So.2d 1035 (Miss.
1996); Lambert v. Sears, Roebuck & Co., 280 Or. 123, 570 P.2d 357 (1977).
82 See Restatement Second of Torts § 668, cmt. c (1977).
83 Lawson v. Kroger Co., 997 F.2d 214 (6th Cir. 1993).
84 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97
S.Ct. 568, 50 L.Ed.2d 471 (1977) (discharge for both unconstitutional and
constitutional reasons); Greenwich Citizens Comm., Inc. v. Counties of
Warren and Washington Indus. Dev. Agency, 77 F.3d 26 (2d Cir. 1996).
85 Hodges v. Gibson Prods. Co., 811 P.2d 151 (Utah 1991);
Restatement Second of Torts § 668, cmt. g (1977).
86 Restatement Second of Torts § 668, cmt. f (1977); Kingstown
Mobile Home Park v. Strashnick, 774 A.2d 847 (R.I. 2001). Cf. McClinton
v. Delta Pride Catfish, Inc., 792 So.2d 968 (Miss. 2001) (malice means
improper objective, not improper attitude).
87 Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993).
88 See Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993); Martin v.
City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612, 364 N.E.2d 1304 (1977)
(civil rights claim adopting state law; oppressive behavior may warrant
finding of malice); Lambert v. Sears, Robebuck & Co., 280 Or. 123, 570
P.2d 357 (1977).
89 Restatement Second of Torts § 668, cmt. e (1977).
90 Dan B. Dobbs, Belief and Doubt in Malicious Prosecution and
Libel, 21 Ariz. L. Rev. 607 (1979).
91 See, e.g., Montgomery Ward v. Wilson, 339 Md. 701, 664 A.2d 916
(1995); Moore v. Evans, 124 N.C.App. 35, 476 S.E.2d 415 (1996); Pallares
v. Seinar, 407 S.C. 359, 756 S.E.2d 128 (2014).
92 Schnathorst v. Williams, 240 Iowa 561, 36 N.W.2d 739 (1949).
94 Lambert v. Sears, Roebuck & Co., 280 Or. 123, 570 P.2d 357
(1977) (Linde, J., concurring).
95 First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466 (Tex.
2004).
96 Restatement Second of Torts § 658 (1977); see Yacubian v. United
States, 750 F.3d 100 (1st Cir. 2014); Kossler v. Crisanti, 564 F.3d 181 (3d
Cir. 2009) (en banc).
97 See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d
383 (1994).
99 Jaffee v. Stone, 18 Cal.2d 146, 114 P.2d 335 (1941); MacFawn v.
Kresler, 88 N.Y.2d 859, 666 N.E.2d 1359, 644 N.Y.S.2d 486 (1996); Ash v.
Ash, 72 Ohio St.3d 520, 651 N.E.2d 945 (1995).
100 E.g., Foshee v. Southern Finance & Thrift Corp., 967 S.W.2d 817
(Tenn.Ct. App. 1997) (dismissal of the first action on double jeopardy
grounds was not a favorable termination).
101 Cantalino v. Danner, 96 N.Y.2d 391, 754 N.E.2d 164, 729 N.Y.S.2d
405 (2001) (dismissal in the interests of justice was favorable termination
on the facts of the particular case but would not be favorable termination
if dismissal was a matter of mercy); Smith-Hunter v. Harvey, 95 N.Y.2d
191, 734 N.E.2d 750, 712 N.Y.S.2d 438 (2000) (dismissal on speedy trial
grounds—failure to prosecute—was a favorable termination and “not
inconsistent with plaintiff’s innocence”).
102 U.S. ex rel. Rutz v. Levy, 268 U.S. 390, 45 S.Ct. 516, 69 L.Ed. 1010
(1925); Richmond v. State, 554 P.2d 1217 (Wyo. 1976).
103 Jaffee v. Stone, 18 Cal.2d 146, 114 P.2d 335 (1941); but cf.
MacFawn v. Kresler, 88 N.Y.2d 859, 666 N.E.2d 1359, 644 N.Y.S.2d 486
(1996) (dismissal of criminal charge on the ground that facts as stated
were not sufficient to show a crime was not a sufficient termination).
104 Halberstadt v. New York Life Ins. Co., 194 N.Y. 1, 86 N.E. 801
(1909).
105 Martinez v. City of Schenectady, 97 N.Y.2d 78, 735 N.Y.S.2d 868,
761 N.E.2d 560 (2001); Cimino v. Rosen, 193 Neb. 162, 225 N.W.2d 567
(1975).
106 Restatement Second of Torts § 660 (1977) (listing compromise;
accused’s misconduct that prevents a proper trial; mercy; and institution
of a new proceeding for the same offense).
107 See id. §§ 660 & 661; cf. O’Brien v. Alexander, 101 F.3d 1479 (2d
Cir. 1996) (voluntary dismissal).
108 Tucker v. Duncan, 499 F.2d 963 (4th Cir. 1974).
109 Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1356 (Fla.
1994).
110 E.g., McEachern v. Black, 329 S.C. 642, 496 S.E.2d 659 (1998)
(judge); Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780 (2003) (county
attorney).
111 The malicious prosecution action normally accrues upon
termination of the criminal prosecution and the statute begins to run at
that point. Lopes v. Farmer, 286 Conn. 384, 944 A.2d 921 (2008); Ferguson
v. City of Chicago, 213 Ill.2d 94, 289 Ill.Dec. 679, 820 N.E.2d 455 (2004).
112 Wal-Mart Stores, Inc. v. Blackford, 264 Ga. 612, 449 S.E.2d 293
(1994) (theorizing that guilt in fact eliminates damages and describing it
as a “defense”); Rogers v. Hill, 281 Or. 491, 576 P.2d 328 (1978).
113 See § 37.8. For further comparison of defamation and malicious
prosecution, see § 39.2.
114 Restatement Second of Torts § 119(a) (1965). Similarly, if a client
is convicted because of a lawyer’s malpractice but the client is in fact
guilty of the crime, the lawyer will usually escape liability. See § 45.13.
115 McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct.
879, 130 L.Ed.2d 852 (1995).
116 Compare Cowles v. Brownell, 73 N.Y.2d 382, 538 N.E.2d 325, 540
N.Y.S.2d 973 (1989) (per se invalid), with Hoines v. Barney’s Club, Inc., 28
Cal.3d 603, 620 P.2d 628, 170 Cal.Rptr. 42 (1980) (not per se invalid).
117 Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94
L.Ed.2d 405 (1987); see, applying the Rumery factors to uphold a release,
MacBoyle v. City of Parma, 383 F.3d 456 (6th Cir. 2004).
118 See David B. Sweet, Annotation, Validity, as Against Claim under
42 U.S.C.A. § 1983, of Accused’s Release Etc., 139 A.L.R. Fed. 1 (1997).
119 Cain v. Darby Borough, 7 F.3d 377, 139 A.L.R. Fed. 677 (3d Cir.
1993).
120 Livingstone v. North Belle Vernon Borough, 12 F.3d 1205 (3d Cir.
1993).
121 E.g., Lynch v. City of Alhambra, 880 F.2d 1122 (9th Cir. 1989).
122 Coughlen v. Coots, 5 F.3d 970 (6th Cir. 1993).
123 This defense applies in cases of both criminal malicious
prosecution and wrongful civil litigation.
124 South Arkansas Petroleum Co. v. Schiesser, 343 Ark. 492, 36
S.W.3d 317 (2001); Verspyck v. Franco, 274 Conn. 105, 874 A.2d 249
(2005); Schnathorst v. Williams, 240 Iowa 561, 36 N.W.2d 739 (1949);
Garcia v. Whitaker, 400 S.W.3d 270 (Ky. 2013).
125 See, e.g., Pannell v. Reynolds, 655 So.2d 935 (Ala. 1994).
126 See Vandersluis v. Weil, 176 Conn. 353, 407 A.2d 982 (1978);
Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780 (2003) (citing Noell v. Angle,
217 Va. 656, 231 S.E.2d 330 (1977)).
127 Professional Real Estate Investors, Inc. v. Columbia Pictures
Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (all but
“sham” litigation [essentially that brought without probable cause and
with malice] is protected from claims that litigation is used to violate
antitrust laws); Titan Am., LLC v. Riverton Investment Corp., 264 Va.
292, 569 S.E.2d 57 (2002) (applying the protection to state tort suits).
128 On special anti-SLAPP statutes, see § 39.16.
129 E.g., Harrison v. Springdale Water & Sewer Com’n, 780 F.2d 1422
(8th Cir. 1986) (public entity’s counterclaim, § 1983 civil rights action was
viable); Bertero v. National General Corp., 13 Cal.3d 43, 118 Cal.Rptr.
184, 529 P.2d 608 (1974) (cross-complaint seeking affirmative relief may
be subject to a malicious prosecution claim).
130 For changes in this view, see § 39.16.
131 Courts sometimes also invoke “presumptions” based on judicial
determinations in the prior litigation. See Hornstein v. Wolf, 67 N.Y.2d
721, 490 N.E.2d 857, 499 N.Y.S.2d 938 (1986).
132 E.g., Zamos v. Stroud, 32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d
802 (2004).
133 George F. Hillenbrand, Inc. v. Ins. Co. of North America, 104
134 Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494, 66 A.L.R.2d 739
(1957); Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 852 A.2d
703 (2004); Restatement Second of Torts § 680 (1977).
135 Prokop v. Hoch, 258 Neb. 1009, 607 N.W.2d 535 (2000).
136 See § 39.12.
137 See Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 972 A.2d
1112 (2009) (rejecting a claim of negligent investigation of purported fraud
as a “surrogate” for a malicious prosecution claim).
138 O’Toole v. Franklin, 279 Or. 513, 569 P.2d 561 (1977).
139 See, e.g., Tappen v. Ager, 599 F.2d 376 (10th Cir. 1979) (physician
who won malpractice action had no claim based upon libel, privacy
invasion, and intentional infliction of emotional distress); Bidna v. Rosen,
19 Cal.App.4th 27, 23 Cal.Rptr.2d 251 (1993) (intentional infliction of
emotional distress claim would require acts other than those supporting
malicious prosecution).
140 Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 932 P.2d
1091 (Okla. 1996).
141 See Nesler v. Fisher & Co., 452 N.W.2d 191 (Iowa 1990).
142 See Palazzo v. Alves, 944 A.2d 144 (R.I. 2008) (failure of malicious
prosecution claim necessarily means that separate claim under anti-
SLAPP statute must also fail).
143 Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585 (1981); see also
Buscher v. Boning, 114 Hawai’i 202, 159 P.3d 814 (2007); Clark v.
Druckman, 218 W.Va. 427, 624 S.E.2d 864 (2005).
144 See Linda A. Sharp, Annotation, Medical Malpractice
Countersuits, 61 A.L.R.5th 307 (1998).
145 Bradshaw v. State Farm Mut. Auto. Ins., 157 Ariz. 411, 758 P.2d
1313 (1988).
147 E.g., Bisno v. Douglas Emmett Realty Fund 1988, 174 Cal.App.4th
1534, 95 Cal.Rptr.3d 492 (2009); Neumann v. Indus. Sound Eng’g, Inc., 31
Wis.2d 471, 143 N.W.2d 543 (1966); see § 39.8.
148 Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 765 P.2d 498,
254 Cal.Rptr. 336 (1989); Paulus v. Bob Lynch Ford, Inc., 139 Cal.App.4th
659, 43 Cal.Rptr.3d 148 (2006) (resolution of probable cause issue in suit
against attorney “calls for the application of an objective standard”).
149 See Shannahan v. Gigray, 131 Idaho 664, 962 P.2d 1048 (1998) (in
civil case, probable cause exists “if the attorney has a reasonable and
honest belief that the client has a tenable claim”); Nagy v. McBurney, 120
R.I. 925, 392 A.2d 365 (1978) (lawyer who brings civil action has probable
cause to do so “if he reasonably believes he has a good chance of
establishing it to the satisfaction of the court or the jury”).
150 See § 39.5.
151 (1) Probable cause is not conclusively shown if the first-suit
plaintiff procured a favorable result by fraud or similar misconduct, or if
the first court lacked jurisdiction. E.g., Cowles v. Carter, 115 Cal. App.3d
350, 357, 171 Cal. Rptr. 269, 272 (1981); Nagy v. McBurney, 120 R.I. 925,
392 A.2d 365 (1978). (2) Probable cause is not conclusively shown where
the first-suit plaintiff wins only an ex parte injunctive order, but even that
is said to be prima facie evidence that he had probable cause. Bokum v.
Elkins, 67 N.M. 324, 331, 355 P.2d 137, 141 (1960); see also Paul v.
Sherburne, 53 N.H. 747, 903 A.2d 1011 (2006) (applying same rule to ex
parte protective order).
152 Dacey v. New York County Lawyers’ Ass’n, 423 F.2d 188 (2d Cir.
1969) (order granting injunction shows probable cause even where it is
later reversed); Goldstein v. Sabella, 88 So.2d 910 (Fla. 1956); Condon v.
Vickery, 270 Ga. App. 322, 606 S.E.2d 336 (2004); see L.C. Warden,
Annotation, Judgment in Prior Civil Proceedings Adverse to Instant
Plaintiff in Malicious Prosecution as Evidence of Probable Cause, 58
A.L.R.2d 1422 (1958).
153 Roberts v. Sentry Life Ins., 76 Cal. App.4th 375, 90 Cal. Rptr.2d
408 (1999).
154 Wolfinger v. Cheche, 206 Ariz. 504, 80 P.3d 783 (Ct. App. 2003).
155 Royce v. Hoening, 423 N.W.2d 198 (Iowa 1988) (counterclaim
dismissed after trial; no inference that counterclaimant lacked probable
cause to pursue the counterclaim); Hill v. Carlstrom, 216 Or. 300, 338 P.2d
645 (1959).
156 Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 74 P.3d 737,
3 Cal. Rptr.3d 636 (2003).
157 Parrish v. Marquis, 172 S.W.3d 526 (Tenn. 2005).
158 See Neumann v. Industrial Sound Eng’g, Inc., 31 Wis.2d 471, 143
N.W.2d 543 (1966) (trial judge’s dismissal of involuntary bankruptcy
petition in the first suit is prima facie evidence of lack of probable cause,
drawing analogy to criminal cases).
159 See Slaney v. Ranger Ins. Co., 115 Cal. App.4th 306, 8 Cal.
Rptr.3d 915 (2004).
161 See DeVaney v. Thriftway Mktg. Corp., 124 N.M. 512, 953 P.2d
277 (1997), overruled on other grounds, Durham v. Guest, 145 N.M. 694,
204 P.3d 19 (2009).
162 E.g., Bradshaw v. State Farm Mut. Auto. Ins., 157 Ariz. 411, 758
P.2d 1313 (1988) (insurer induced insured to file a suit as part of strategy
to defend against a valid claim; this shows “malice”).
163 Spencer v. Burglass, 337 So.2d 596 (La.Ct.App. 1976).
164 See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S.
657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); § 37.18.
165 Miskew v. Hess, 21 Kan.App.2d 927, 910 P.2d 223 (1996).
166 One Thousand Fleet Ltd. Partnership v. Guerriero, 346 Md. 29,
694 A.2d 952 (1997).
167 Christian v. Lapidus, 833 S.W.2d 71 (Tenn. 1992) (abandonment of
claim by filing a complaint not naming the present plaintiffs terminated
the action and started the statute of limitations running).
168 New Mexico, which first consolidated the wrongful litigation and
abuse of process torts into a single tort called “malicious abuse of process”
in DeVaney v. Thriftway Mktg. Corp., 124 N.M. 512, 521, 953 P.2d 277,
286 (1997), abrogated on other grounds, Fleetwood Retail Corp. of New
Mexico v. LeDoux, 142 N.M. 150, 164 P.3d 31 (2007), treats favorable
termination as evidence bearing on probable cause but not as a separate
element. See Durham v. Guest, 145 N.M. 694, 204 P.3d 19 (2009) (one way
of proving “an improper use of process,” an element of the new tort, is to
show that the defendant filed a complaint without probable cause).
169 E.g., Bismarck Hotel Co. v. Sutherland, 175 Ill. App.3d 739, 529
N.E.2d 1091, 125 Ill.Dec. 15 (1988); Flugge v. Flugge, 681 N.W.2d 837
(S.D. 2004); Anello v. Vinci, 142 Vt. 583, 458 A.2d 1117 (1983); see Vitauts
M. Gulbis, Annotation, Nature of termination of civil action required to
satisfy element of favorable termination to support action for malicious
prosecution, 30 A.L.R.4th 572, § 4[a] (1984).
170 One Thousand Fleet Ltd. Partnership v. Guerriero, 346 Md. 29,
694 A.2d 952 (1997).
171 Restatement Second of Torts § 674, cmt. j (1977).
172 Lackner v. LaCroix, 25 Cal.3d 747, 602 P.2d 393, 159 Cal.Rptr.
693 (1979); Miskew v. Hess, 21 Kan.App.2d 927, 910 P.2d 223 (1996);
Palmer Dev. Corp. v. Gordon, 723 A.2d 881 (Me. 1999).
173 Restatement Second of Torts § 674, cmt. j (1977); accord, Siebel v.
Mittlesteadt, 41 Cal.4th 735, 62 Cal.Rptr.3d 155, 161 P.3d 527 (2007); Cult
Awareness Network v. Church of Scientology Intern., 177 Ill.2d 267, 685
N.E.2d 1347, 226 Ill.Dec. 604 (1997).
174 Himmelfarb v. Allain, 380 S.W.3d 35 (Tenn. 2012).
175 Greenberg v. Wolfberg, 890 P.2d 895 (Okla. 1994). Statutes may so
provide. See Or. Rev. Stats. § 31.230.
176 Foley v. Argosy Gaming Co., 688 N.W.2d 244 (Iowa 2004); Robb v.
Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 662 N.E.2d 9 (1996)
(prejudgment seizure of property required); Friedman v. Dozorc, 412 Mich.
1, 312 N.W.2d 585 (1981); Engel v. CBS, Inc., 93 N.Y.2d 195, 689 N.Y.S.2d
411, 711 N.E.2d 626 (1999); Kingstown Mobile Home Park v. Strashnick,
774 A.2d 847 (R.I. 2001); Texas Beef Cattle Co. v. Green, 921 S.W.2d 203
(Tex. 1996).
177 E.g., Ackerman v. Kaufman, 41 Ariz. 110, 15 P.2d 966 (1932)
(rejecting the special injury requirement where facts actually showed
many harassing prior suits that would count as special injury); Greenberg
v. Wolfberg, 890 P.2d 895 (Okla. 1995) (similar).
178 E.g., Whalen v. Connelly, 621 N.W.2d 681 (Iowa 2000) (expense of
litigation—allegedly $1 million—is not special injury).
179 Thus the fact that the victim of wrongful litigation takes voluntary
bankruptcy does not show special grievance, since it results only indirectly
from the wrongful litigation. Venuto v. Carella, Byrne, Bain, Gilfillan,
Cecchi & Stewart, P.C., 11 F.3d 385 (3d Cir. 1993).
180 Cult Awareness Network v. Church of Scientology Int’l, 177 Ill.2d
267, 685 N.E.2d 1347, 226 Ill.Dec. 604 (1997) (21 allegedly meritless suits
in 17 months in various jurisdictions sufficient showing of special injury);
181 Royce v. Hoenig, 423 N.W.2d 198 (Iowa 1988) (requiring “proof of
arrest, seizure of property, or other ‘special injury’ … which would not
necessarily result in all suits prosecuted to recover for like causes of
action”); Palazzo v. Alves, 944 A.2d 144 (R.I. 2008) (requiring “in the
absence of a person’s arrest or seizure of his or her property, a showing of
‘special injury’ beyond the trouble, cost, and other consequences normally
associated with defending oneself against an unfounded legal charge”); but
see Foley v. Argosy Gaming Co., 688 N.W.2d 244 (Iowa 2004)
(consequential impairment of credit and loss of insurance coverage
resulting indirectly from the prior suit is not a special injury).
182 Pellegrini v. Winter, 476 So.2d 1363 (Fla.Dist.Ct.App. 1985);
Fowle v. Fowle, 263 N.C. 724, 140 S.E.2d 398 (1965).
183 Norin v. Sheldt Mfg. Co., 297 Ill. 521, 130 N.E. 791 (1921);
Hubbard v. Beatty & Hyde, Inc., 343 Mass. 258, 178 N.E.2d 485 (1961);
Specialty Mills, Inc. v. Citizens State Bank, 558 N.W.2d 617 (S.D. 1997).
Some courts, however, require an actual seizure of the property. See Peter
G. Guthrie, Annotation, Action For Malicious Prosecution Based on
Institution of Involuntary Bankruptcy, Insolvency, or Receivership
Proceedings, 40 A.L.R.3d 296 (1971).
184 See O’Brien v. Alexander, 101 F.3d 1479 (2d Cir. 1996) (listing
remedies and many cases); Blankenship v. Staton, 348 S.W.2d 925 (Ky.
1961) (attachment); Mayflower Indus. v. Thor Corp., 15 N.J.Super. 139, 83
A.2d 246 (1951) (injunction); Shute v. Shute, 180 N.C. 386, 104 S.E. 764
(1920) (injunction; bond is not exclusive remedy); Novick v. Becker, 4
Wis.2d 432, 90 N.W.2d 620 (1958) (garnishment).
185 Lis pendens is an official record notifying prospective purchasers
of real property that a suit is pending asserting a legal interest in the
property. It is not authorized merely because the suitor has a claim for
money damages that might ultimately be enforced against the property.
See National City Bank, Indiana v. Shortridge, 689 N.E.2d 1248 (Ind.
1997).
186 Wyatt v. Wehmueller, 163 Ariz. 12, 785 P.2d 581 (Ct. App. 1989)
(filing lis pendens when statutory criteria were clearly not met, statutory
penalty), rev’d on other grounds, 167 Ariz. 281, 806 P.2d 870 (1991); Cok v.
Cok, 558 A.2d 205 (R.I. 1989) (both wrongful litigation and abuse of
process theories); Kensington Dev. Corp. v. Israel, 142 Wis.2d 894, 419
N.W.2d 241 (1988).
187 See Hewitt v. Rice, 154 P.3d 408 (Colo. 2007) (wrongful lis pendens
filing may be remedied by an action for malicious prosecution, abuse of
process, slander of title, and intentional interference with contractual
relationship). Other courts have analyzed unjustified filing of lis pendens
under theories of interference with contract, see National City Bank,
Indiana v. Shortridge, 689 N.E.2d 1248 (Ind. 1997), slander of title, see
Montecalvo v. Mandarelli, 682 A.2d 918 (R.I. 1996), abuse of process, and
wrongful civil litigation, see Cok v. Cok, 558 A.2d 205 (R.I. 1989) (both
abuse of process and malicious use of process).
188 Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427 (Tex.
Ct. App. 1990).
189 Ringier America, Inc. v. Enviro-Technics, Ltd., 284 Ill. App. 3d
1102, 673 N.E.2d 444, 220 Ill. Dec. 532 (1996).
191 See General Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d
297 (3d Cir. 2003).
192 See Sands v. Living Word Fellowship, 34 P.3d 955 (Alaska 2001).
193 See § 39.12.
194 See Durham v. Guest, 145 N.M. 694, 204 P.3d 19 (2009) (stating
revised elements for the new tort of “malicious abuse of process”),
discussed in § 39.16.
195 See Hewitt v. Rice, 154 P.3d 408 (Colo. 2007).
196 E.g., Simpson v. Laytart, 962 S.W.2d 392 (Ky. 1998); Yaklevich v.
Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115
(1994).
197 General Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297
(3d Cir. 2003).
198 Restatement of Torts § 682 (1938).
200 See Parks v. Neuf, 218 Ill.App.3d 427, 578 N.E.2d 282, 161 Ill.Dec.
155 (1991); Lee v. Mitchell, 152 Or.App. 159, 953 P.2d 414 (1998).
201 See Hatch v. Davis, 147 P.3d 383 (Utah 2006) (saying “the
‘essence’ of the tort of abuse of process [is] ‘a perversion of the process to
accomplish some improper purpose,’ ” finding that the defendant was
engaged in “a campaign of hate and terror” and an “ill-intentioned crusade
to intimidate” the plaintiff and others).
202 See, e.g., Fuller v. Local Union No. 106, United Brotherhood of
Carpenters and Joiners of America, 567 N.W.2d 419, 421 (Iowa 1997).
203 Cf. Grainger v. Hill, 4 Bing. N.C. 212, 132 Eng.Rep. 769 (1838)
(the classic case; the original suitor had the plaintiff arrested under civil
process available at that time in order to induce the plaintiff to yield
control of the vessel by which the plaintiff earned his livelihood); South
Arkansas Petroleum Co. v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001)
(“the test of abuse of process is whether a judicial process is used to extort
or coerce”; demand for money not owed followed by instigation of
prosecution, followed by testimony that did not reveal facts exculpating
the plaintiff).
204 E.g., Sands v. Living Word Fellowship, 34 P.3d 955 (Alaska 2001)
(person not sued but who was enjoined as a result of the suit had standing
to sue); White Lighting Co. v. Wolfson, 68 Cal.2d 336, 66 Cal.Rptr. 697,
438 P.2d 345 (1968) (attachment); Czap v. Credit Bureau of Santa Clara
Valley, 7 Cal.App.3d 1, 86 Cal.Rptr. 417 (1970) (garnishment); Board of
Educ. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom
Teachers Ass’n, Inc., Local 1899, 38 N.Y.2d 397, 403, 343 N.E.2d 278, 283,
380 N.Y.S.2d 635, 642 (1975) (subpoena).
205 Nienstedt v. Wetzel, 133 Ariz. 348, 352, 651 P.2d 876, 880, 33
A.L.R.4th 635 (Ct. App. 1982) (process “encompasses the entire range of
procedures incident to the litigation process”).
206 Podolsky v. Alma Energy Corp., 143 F.3d 364 (7th Cir. 1998);
Stahl v. St. Elizabeth Med. Ctr., 948 S.W.2d 419 (Ky.Ct.App. 1997).
207 National City Bank, Indiana v. Shortridge, 689 N.E.2d 1248 (Ind.
1997); Cok v. Cok, 558 A.2d 205 (R.I. 1989); Broadmoor Apartments of
Charleston v. Horwitz, 306 S.C. 482, 413 S.E.2d 9 (1991).
208 Barquis v. Merchants Collection Ass’n of Oakland, 7 Cal.3d 94,
496 P.2d 817, 101 Cal.Rptr. 745 (1972).
209 See, e.g., Simon v. Navon, 71 F.3d 9 (1st Cir. 1995); General
Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297 (3d Cir. 2003).
210 See Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264,
271, 662 N.E.2d 9, 14 (1996).
211 Palmer Ford, Inc. v. Wood, 298 Md. 484, 471 A.2d 297 (1984); Ellis
v. Wellons, 224 N.C. 269, 29 S.E.2d 884 (1944).
212 See, e.g., Tranchina v. Arcinas, 78 Cal.App.2d 522, 178 P.2d 65
(1947); Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 662
N.E.2d 9 (1996).
213 See Palazzo v. Alves, 944 A.2d 144 (R.I. 2008) (state senator sued
public meeting participants for defamation; affirming trial court’s
dismissal of the abuse of process claim by the participants, noting “even a
pure spite motive is not sufficient where process is used only to accomplish
the result for which it was created”); Schmit v. Klumpyan, 663 N.W.2d 331
(Wis. App. 2003) (A and B were co-owners of a parcel of land; A wished to
sell but B did not; A brought a partition action to force a sale; as this was
the very purpose of a partition action, the fact that A’s motive was to
coerce B was essentially irrelevant).
214 White Lighting Co. v. Wolfson, 68 Cal.2d 336, 66 Cal.Rptr. 697,
438 P.2d 345 (1968); see also Thomas J. Goger, Annotation, Liability of
Creditor for Excessive Attachment or Garnishment, 56 A.L.R.3d 493
(1974).
215 E.g., Cok v. Cok, 558 A.2d 205 (R.I. 1989); see also § 39.12.
216 E.g., Broadmoor Apartments of Charleston v. Horwitz, 306 S.C.
482, 413 S.E.2d 9 (1991).
217 White Lighting Co. v. Wolfson, 68 Cal.2d 336, 66 Cal.Rptr. 697,
438 P.2d 345 (1968).
218 Parks v. Neuf, 218 Ill.App.3d 427, 578 N.E.2d 282, 161 Ill.Dec. 155
(1991).
219 Bd. of Educ. of Farmingdale Union Free Sch. Dist. v. Farmingdale
Classroom Teachers Ass’n, Inc., Local 1899, 38 N.Y.2d 397, 403, 343
N.E.2d 278, 283, 380 N.Y.S.2d 635, 642 (1975) (defendant must seek
collateral advantage or a “corresponding detriment to the plaintiff which is
outside the legitimate ends of the process”).
220 Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d
278 (1988) (repeated wage garnishments pursued to induce employer to
fire the employee).
221 Cf. Bd. of Educ. of Farmingdale Union Free Sch. Dist. v.
Farmingdale Classroom Teachers Ass’n, Inc., Local 1899, 38 N.Y.2d 397,
343 N.E.2d 278, 380 N.Y.S.2d 635 (1975) (subpoena of 87 teachers to
appear at the same time, forcing school to hire substitutes, although not
all could appear on any one day).
222 Barquis v. Merchants Collection Ass’n of Oakland, Inc., 7 Cal.3d
94, 496 P.2d 817, 101 Cal.Rptr. 745 (1972) (debt collection agency’s pattern
of filing claims in wrong venue to impose hardship and make default
judgment more likely).
(3d Cir. 2003).
224 Giles v. Hill Lewis Marce, 195 Ariz. 358, 988 P.2d 143 (Ct. App.
1999).
225 Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957 (1980), overruled on
other grounds, Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987).
(3d Cir. 2003).
227 Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613 (1957).
228 See Baglini v. Lauletta, 338 N.J. Super. 282, 768 A.2d 825 (2001)
(defendant’s offer to drop suit against plaintiff if plaintiffs would drop
their suit against defendant was not an abuse of process).
229 E.g., Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68
OhioSt.3d 294, 626 N.E.2d 115 (1994) (a legal proceeding has been set in
motion with probable cause but the proceeding has been perverted to
accomplish an ulterior purpose); Hatch v. Davis, 147 P.3d 383 (Utah 2006)
(“To satisfy the ‘willful act’ requirement, a party must point to conduct
independent of the legal process itself that corroborates the alleged
improper purpose…. [A] corroborating act of a nature other than legal
process is also necessary.”).
230 Mills County State Bank v. Roure, 291 N.W.2d 1, 5 (Iowa 1980)
(refusing to protect the tortfeasor “where the issuance of the process alone
is sufficient to accomplish the collateral purpose”); see also Givens v.
Mullikin, 75 S.W.3d 383 (Tenn. 2002) (the “process” referred to in the “act
after” rule is the original process, such as complaint, summons, and
responsive pleading, so that any abusive and improper act thereafter may
suffice to meet the act after rule).
231 E.g., Cabletron Sys., Inc. v. Miller, 140 N.H. 55, 662 A.2d 304
(1995).
233 Willis v. Parker, 814 So.2d 857 (Ala. 2001); Snyder v. Icard,
Merrill, Cullis, Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550 (Tenn.
1999).
234 See Gibson v. Regions Financial Corp., 557 F.3d 842 (8th Cir.
2009) (Arkansas law) (quoting: “The key to an abuse of process claim is
improper use of process after issuance, even when issuance has been
properly obtained.”) (emphasis in original); Sands v. Living Word
Fellowship, 34 P.3d 955 (Alaska 2001).
235 Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1
(1991).
236 The acronym stands for “strategic lawsuit against public
participation.” See, e.g., Palazzo v. Alves, 944 A.2d 144 (R.I. 2008)
(explaining the purposes of Rhode Island’s anti-SLAPP statute).
237 See Leiendecker v. Asian Women United of Minnesota, 848
N.W.2d 224 (Minn. 2014) (“Typically, anti-SLAPP statutes protect the
exercise of two types of public-participation rights: the right to free speech
and the right to petition the government.”). The Noerr-Pennington doctrine
provides for an immunity from statutory liability for those who petition
government for redress and are sued for that conduct. See BE&K Const.
Co. v. NLRB, 536 U.S. 516, 122 S.Ct. 2390, 153 L.Ed.2d 449 (2001).
238 See, e.g., Morse Bros., Inc. v. Webster, 772 A.2d 842 (Me. 2001).
239 See Leiendecker v. Asian Women United of Minnesota, 848
N.W.2d 224 (Minn. 2014) (applying state statute that requires the trial
court “to suspend discovery once an anti-SLAPP motion is filed unless the
responding party can show ‘good cause’ for ‘specified and limited
discovery’ ”; the responding party must then produce “clear and convincing
evidence that the moving party is not entitled to immunity”).
240 Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 74 P.3d 737,
3 Cal. Rptr.3d 636 (2003).
241 Linscott v. Foy, 716 A.2d 1017 (Me. 1998).
242 Bidna v. Rosen, 19 Cal.App.4th 27, 23 Cal.Rptr.2d 251 (1993),
barred wrongful litigation suits in family court matters in favor of a
complete sanctions approach.
243 See DeVaney v. Thriftway Mktg. Corp., 124 N.M. 512, 953 P.2d
277 (1997) (eliminating the termination requirement and permitting
counterclaims for wrongful civil litigation, as well as restructuring the
wrongful litigation and abuse of process torts as a single tort called
“malicious abuse of process”); see also Fleetwood Retail Corp. of New
Mexico v. LeDoux, 142 N.M. 150, 164 P.3d 31 (2007) (modifying one aspect
of DeVaney, but retaining its essential reforms); Durham v. Guest, 145
N.M. 694, 204 P.3d 19 (2009) (tort does not require the plaintiff to prove
that the defendant initiated judicial proceedings against the plaintiff,
overruling DeVaney on that point; plaintiff need only show some improper
use of process in a proceeding).
1049
Chapter 40
INTERFERENCE WITH FAMILY

RELATIONSHIPS
Analysis
§ 40.1 Alienation of Affections and Criminal Conversation
§ 40.2 Interference with Parental Custody and Other Rights in
Children
§ 40.3 Alienation of a Parent’s or Child’s Affections
__________
§ 40.1 Alienation of Affections and Criminal

Conversation
Tort law and the family: background. Families and family
relationships have been important in tort law in a number of ways.
The present chapter focuses only upon the potential liability of
those who interfere with family relationships where physical harm
to the claimant is no part of the claim. “Relational injury” or injury
to the family relationship itself with the concomitant emotional
harm and loss of well-being is the essential concern here. The most
notable historical example is the claim by a spouse that the
defendant has alienated the affections of the other spouse, but
contemporary custody battles and the seduction of children by
religious groups has raised issues about “interference” and
alienation in new contexts.
Common law view of relationships. At one time the common law
treated a husband and father as the master of his wife and
children. If the defendant injured a servant or enticed him away
from service, the master would have a cause of action for the loss.1
Similar rules applied if the master’s wife was injured or enticed
away.2 By the latter part of the 19th century courts developed two
or three semi-distinct torts from this beginning. Together they
protected the husband’s interest in his wife’s services, society,
affection, and honor against interference by others. Later, courts
became more even-handed and provided wives with the same
rights. These interference torts are now abolished in most states,3
but lawyers sometimes attempt to resurrect them under another
label.
Criminal conversation. Criminal conversation merely meant
adultery or sexual relations. The defendant who engaged in
adultery with the plaintiff’s spouse would be liable to the plaintiff.
The authorities state the elements of the tort with almost alarming
simplicity: the tort consists of having sexual relations with one
spouse.4 “The fact that the wife consented, that she was the
aggressor, that she represented herself as single, that she was
mistreated or neglected by her husband, that she and her husband
were separated through no fault of her own, or that her husband
was impotent, were not valid
1050
defenses.”5 The only defense was the nonparticipating spouse’s

own consent.6 In other words, the defendant was liable to the
husband although he had committed no tort to the wife and was
guilty of no fraud, force, or deception.
Alienation of affections. If the defendant deprived one spouse of
the other’s affections but did not engage in sexual relations, that
too became a tort by the latter half of the 19th century.7 The
defendant here must ordinarily have known of the marital
relationship and acted for the purpose of affecting it adversely,8
but neither sexual nor romantic involvement was required. Indeed,
the defendant could be held liable though he was only a minister or
a family member who, without a privilege,9 urged one spouse to
leave the other.10 The defendant was not subject to liability unless
his conduct was a substantial factor, along with other causes, for
the alienation,11 and of course there was no alienation if no
affection remained in the marriage at the time of the defendant’s
conduct.12 However, causation and wrongful intent were both
elements that might be proved by circumstances.13 As with
criminal conversation, the defendant would be liable without a tort
to the person whose affections were alienated and without any
kind of falsehood.
Enticement. A defendant who abducted the plaintiff’s spouse
might be liable to the abducted spouse for false imprisonment, and
the other spouse might plausibly claim loss of consortium as in the
case of other physical harms. Historically, courts took a shortcut
across such reasoning by holding simply that one who abducted a
spouse would be liable to the other spouse, and by extension of this,
that one who enticed one spouse to separate from the other would
also be liable. In line with this history the Restatement recognized
enticement as a separate tort.14 It is apparent, however, that
enticement is merely one form of, or at most an extension of,
alienation of affections and like alienation, turns on an intent to
disrupt the marriage.15
Abolishing the torts. Criminal conversation16 and alienation of
affections17 have now been abolished in the great majority of
states, either by explicit legislation or by judicial
1051
decision. Indeed, an attorney who files a complaint for this

defunct cause of action may be subject to sanctions.18 Only a
handful of states have continued the alienation of affections action
and some of those have abolished the criminal conversation
claim.19 A few other states seem not to have passed on the issue.20
The reasons to abolish the torts are numerous and they run deep.21
Rationales. Courts and legislatures have been moved in part by
the conclusion that these torts lent themselves to blackmail and to
vindictiveness pursued by a spouse whose marriage is over and
who seeks merely to inflict harm. With the advent of no fault
divorce everywhere and the decriminalization of adultery in many
states, these torts also came to seem illogical and inimical to the
reforms enacted in divorce and criminal laws.22 Beyond this, the
torts have become offensive because they have, sometimes quite
explicitly, treated a spouse as the property of the other spouse and
because they are thoroughly inimical to the freedom of all human
beings to choose their associations and to choose to depart
dangerous, stultifying, or deeply unhappy homes. These torts could
also operate unjustly by punishing the defendant for conduct to
which both participants consent. Finally, some of the cases turned
on nothing more than words that were by no means false and thus
punished speech. The grounds for abolishing the torts are thus
ample, although one commentator has argued to the contrary and
thinks more limited versions of the torts would save families and
prevent adultery.23 Where the torts are abolished, the question
now arises whether their abolition also prevents recovery on other
theories.
Alternative theories after abolition. After the abolition of the
interference torts, lawyers began to assert claims on the same facts
but under other theories. For instance, a spouse might assert that
the defendant’s adultery with the other spouse was an intentional
or negligent infliction of distress or an interference with contract.
Alert to such “artful pleading,” courts have rejected the emotional
harm,24 interference with
1052
contract,25 and other claims26 as mere disguises for the

alienation and criminal conversation claims. Negligent interference
was never enough to show alienation of affections and is of course
not enough once the tort has been abolished.27 Moreover, the claim
cannot be pursued by chidren of the marriage.28 Even if the claim
adds aggravating facts not necessary to the alienation or criminal
conversation theory, it may still be denied when the underlying
facts are in the patterns of those torts.29
Duty to one or both spouses. In the counseling setting, when a
therapist or counselor has sexual relations with the spouse who is
his patient, the patient herself may well have a claim for
malpractice.30 But the spouse who is not a patient has no
malpractice claim of his own for the very reason that professional
duties are ordinarily owed only to patients or clients.31 With the
claim for criminal conversation abolished, that leaves the non-
patient spouse with no claim at all. The same analysis is made
when a clergyman has an affair with a parishioner to the dismay of
the parishioner’s spouse.32 However, the story may be different if
the therapist owes an independent duty to both spouses or to the
complaining spouse.33 For instance, when a counselor undertakes
to professionally treat the marital problems of both spouses, he
may be liable for professional negligence if sexual relations or
romantic affairs with one of them violates the duty owed to both.34
Independent torts. Similarly, an independent tort like libel or
slander is presumably actionable, even though its effect is to
reduce spousal affection.35 Moreover, a tort action for sexual
assault brought by both husband and wife for an assault against
one of the two is not barred by the abolition of the alienation of
affections tort. The non-consensual contact distinguishes the case
from the abolished torts.36
1053
§ 40.2 Interference with Parental Custody and

Other Rights in Children
From common law to today. Early common law recognized a
right in the father of a child to have the child’s services and hence
a right to recover for loss of those services when the defendant
abducted or injured the child. This approach is largely obsolete,
first because rights in the parent-child relationship are no longer
those of the father alone but belong to the mother or other
custodian as well, and second because loss of services is no longer
the essence of the loss.37 In most cases a full range of damages for
the loss of society and affection and other values in the relationship
is now permitted. So far as the parent-child relationship is
damaged by negligent physical injury to the child, only a few courts
have accepted the parent’s claim for loss of the child’s society and
affection.38 This section addresses the remaining issues—
interference with relationships in the family by abduction,
alienation of affections of a child or parent and the like.
Interference with custody rights: enticing, abducting or
harboring. When the minor child is enticed, or abducted, or
“harbored,” the custodians of the child are entitled by common law
or statute to recover.39 The claim is not for alienation of affections,
but for deprivation of physical custody.40 On the other hand,
damages are no longer limited to an award for loss of the child’s
services, but may include awards for the parents’ distress, their
loss of the child’s society, and the expenses incurred in recovering
custody as well as punitive damages in an appropriate case.41 The
action can be characterized as an intentional and unjustified
interference with the parental right of custody of a minor.42 As this
implies, the defendant must have notice of the plaintiff’s custodial
rights. The consent of the child is no defense to the custodians’
action.43
Abduction versus privileged shelter. The claim by its terms
covers out-and-out abduction with criminal intent to harm or
ransom, as well as cases of sexual enticement,44 but most of the
contemporary cases are more complex. When an outsider provides
a haven for the child in the reasonable suspicion that the child is
abused at home,45 or merely exercises his freedom of religion when
speaking to the minor,46 he may
1054
be guilty of no wrongdoing at all or may be protected by a

privilege or a constitutional right.
Suits between parents and kidnappers and abetters. One
important group of cases arises when a parent or other family
member kidnaps a child following a divorce and a lost custody
battle. Most courts dealing with the issue have recognized the
action brought by the custodial parent against the non-custodial
parent or family members who aid and abet the kidnaping.47 It has
been said that tort claims better serve “both to prevent child-
snatching and to pick up the pieces if it does occur” than any of the
alternative sanctions such as those provided by the Uniform Child
Custody Jurisdiction Act, or by kidnaping or contempt
prosecutions.48 The view, however is not unanimous. A Minnesota
case is the principal authority rejecting the action against a
parental kidnaper.49 The Minnesota court did so on the theory that
it would not be best for the child to undergo such litigation.
Supporters of this view have suggested that statutes enhancing
power over the kidnaper who flees the jurisdiction,50 coupled with
other litigation against the kidnaper, may ameliorate the problem.
But these other types of litigation—criminal felony prosecutions,
contempt of court, and tort claims for infliction of emotional
distress51—seem no less harmful to the child than the interference
with custody claim. To some extent the conflict about whether to
recognize a tort cause of action for interference with custody by a
parental kidnapper may represent a conflict of two legal cultures,
one associated with tort practice and emphasizing rights and
responsibilities, the other associated with family law practice and
emphasizing a kind of social work role for judges and court staff.
Custody required; joint custody. The right protected in
interference with custody cases is the right to custody of the child.
If the plaintiff does not have custody rights, she has no claim.52
The Restatement (Second) of Torts, in a passage accepted by a
number of courts, takes the position that when parents have joint
custody of a child, neither may recover from the other for denying
access to the child.53 The rule makes sense if it only means that
joint custody does not give either parent an absolute right to sole
custody of the child for a percentage of the time. A third person
who assists the joint-custody father in permanently hiding the
children from the mother cannot logically be aiding and
1055
abetting a tort if it would be no tort for the father to do the

same things by himself. While some authority supported this
analysis,54 in more recent cases, courts generally have supported
claims against those who aid a joint-custody parent in abducting
the child.55 If joint custody means anything, it must mean that one
parent cannot be the sole custodian. When a father carries children
abroad and hides them, it seems absurd to say that he is respecting
the mother’s right of joint custody. Indeed, recent cases hold that a
claim of interference with custody can be brought against a parent
who has shared custody.56
Cases against third parties. On occasion, courts permit recovery
for custodial interference by parties other than the absconding
parent and conspiratorial relatives. For example, a $27 million jury
award was upheld against an air charter operator who negligently
facilitated a father’s abduction of his children by plane to Egypt.57
In another negligence case, a malpractice claim for damages from
loss of custody could be maintained when an attorney’s faulty legal
advice caused the biological parents to lose partial custody of their
child.58 Where independent duties to the parents or children do not
exist, the plaintiff must prove intentional interference.59 Moreover,
immunities protect persons who intentionally attempt to influence
child custody in legal proceedings. In accord with testimonial
immunities generally, a cause of action is not available simply
because a party testified in a way that caused a court to grant
custody in favor of one spouse rather than another. Courts are
justifiably wary of such suits because of the chilling effect on the
truth seeking process in child custody cases.60 In addition to
common law protections, state statutes may afford a privilege to
report concerns about child welfare even when those reports will
logically lead to custody deprivation or modification.61
Visitation rights. Where one parent interferes with the other’s
rights of visitation rather than rights of custody, some courts have
refused to permit a tort recovery,62 at least for what they
considered to be minor infringements of visitation rights
remediable
1056
by injunction or contempt proceedings.63 When the custodial

parent totally removes the child from the jurisdiction and hides
him, the other parent’s right of visitation is completely destroyed
for which an action has been approved in some cases,64 but not in
others.65 The difficulty of justly monitoring the seething relations
between former spouses and their various allies may warrant a
refusal to entertain actions for the kind of minor guerrilla warfare
that regularly occurs, but when the defendant’s action is a
substantial and long-term interference, courts should not lightly
put aside their own fundamental purposes to do justice nor too
readily assume that a tort action will be against the child’s long-
term best interest.
Seduction of a minor child. When a minor female child was
seduced, old common law recognized a claim by the father both for
medical expenses and for loss of his daughter’s services resulting
from the seduction.66 The seduction claim belonged to the father,
not the child.67 The loss of services here became the fictional basis
of the action which in reality was a reflection of judicial outrage
coupled with the belief that the father had legal rights in his
female children. Social change brought more independence to
women and procedural reforms required suit to be brought by the
real party in interest.68 After these changes and sometimes as a
result of explicit statutes, courts began to permit the seduced
woman to bring her own suit.69 The effect was to convert the
relational injury claim into a kind of battery claim, or perhaps one
for fraud,70 but either way to be pursued by the immediate victim.
But in any event, the parental claim for anything more than
obligatory medical expenses may be abolished along with the
alienation and criminal conversation claims.71
§ 40.3 Alienation of a Parent’s or Child’s
Affections
Basic rules. The usual rule is that there is no independent
action for the defendant’s acts alienating the affections of either a
parent72 or a child.73 The child’s claim, asserted
1057
against a parent’s new spouse or lover, seems inconsistent with

the general abolition of alienation claims and also with the right of
the parent to obtain a divorce. If the rule against a recovery for
alienation of a parent’s affections is to be effective, courts must also
deny the claim when it is asserted on the same essential facts
under the theory of privacy invasion, or interference with contract,
or intentional infliction of emotional distress.74
Alienation of a child’s affections: difficulties of claims between
parents. The parents’ claim for alienation of a child’s affection
might stand on substantially higher ground and at least one
notable case supports it.75 So far as the claim is asserted against
the child’s other parent or against the child’s custodian, however,
the problem of monitoring the persistent destructive behavior of
divorced parents may make it difficult to be confident that
adjudications would produce just results with appropriate
consistency. On the other hand, when the issue is not tort recovery
but custody of the child, courts have been perfectly willing to
consider whether one parent has been guilty of alienating the
child’s affections for the other.76
Liability of therapists for alienating a child’s affections. When
therapists induce an adult to believe falsely that a parent sexually
abused her as a child, standard doctrine holds that the therapist is
not liable to the parent for mere negligence in diagnosis because a
professional’s duty of care ordinarily runs to the patient or client,
not to others, and because so far as the therapist reports suspected
child abuse, he may be privileged as well.77 Expressed in policy
terms, a professional’s duty of care should not run to his client’s or
patient’s adversary lest his professional conduct be shaped by fear
of liability rather than by duty to his patient or client.78
________________________________
1 See §§ 36.2 to 36.5.
2 See William Blackstone, 3 Commentaries *139.
3 See Abolishing the Torts below.
4 See Brown v. Hurley, 124 N.C.App. 377, 477 S.E.2d 234 (1996)
(actual existing marriage plus sexual intercourse); Russo v. Sutton, 310
S.C. 200, 422 S.E.2d 750 (1992) (same); Restatement (Second) of Torts §
685 (1977).
5 Kline v. Ansell, 287 Md. 585, 587, 414 A.2d 929, 930 (1980).
7 See, e.g., Foot v. Card, 58 Conn. 1, 18 A. 1027 (1889) (also
recognizing that the right to sue for alienation extended to the wife).
9 Under Restatement (Second) of Torts § 686 (1977), a parent or
near relative had a privilege to give advice in good faith and reasonably to
advance the interest of the alienated spouse, but not for the purpose of
“appropriating the affections” of that spouse. But cf. Poulos v. Poulos, 351
Mass. 603, 222 N.E.2d 887 (1967). (mother who aggressively tries to
persuade her son to leave his wife and tells him nine times that the
marriage is a disgrace may be liable for abusing her privilege by going
further than is “reasonable”).
10 Boland v. Stanley, 88 Ark. 562, 115 S.W. 163 (1909) (parents of
alienated spouse); Carrieri v. Bush, 69 Wash.2d 536, 419 P.2d 132 (1966)
(minister who taught that God had come to separate husband from wife).
11 Norton v. MacFarlane, 818 P.2d 8 (Utah 1991) (controlling or
primary cause as opposed to incidental cause).
12 See McCutchen v. McCutchen, 624 S.E.2d 620 (N.C. 2006);
Pickering v. Pickering, 434 N.W.2d 758, 763 (S.D. 1989).
13 See Kirk v. Koch, 607 So.2d 1220 (Miss. 1992).
15 Id. § 684(2) & cmt. f (1977).
16 By statute in most states, e.g., Or. Rev. Stat. § 30.850; Va. Code §
8.01–220. Among decisions abolishing criminal conversation, see
Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978); Thomas v. Siddiqui, 869
S.W.2d 740 (Mo. 1994); Feldman v. Feldman, 125 N.H. 102, 480 A.2d 34
(1984).
17 Statutes abolishing the tort have been enacted in most states.
E.g., N.Y. Civ. Rights Law § 80–a; Tex. Fam. Code § 1.107. Among judicial
decisions abolishing the tort, see O’Neil v. Schuckardt, 112 Idaho 472, 733
P.2d 693 (1986); Hoye v. Hoye, 824 S.W.2d 422 (Ky. 1992); Russo v.
Sutton, 310 S.C. 200, 422 S.E.2d 750 (1992). A recent decision abolishing
the tort is Helsel v. Noellesch, 107 S.W.3d 231 (Mo. 2003). For an
intriguing post mortem on the tort, see Kyle Graham, Why Torts Die, 35
Fla. St. U. L. Rev. 359 (2008).
18 Attorney Grievance Comm’n of Md. v. James, 870 A.2d 229 (Md.
2005).
19 Brown v. Ellis, 678 S.E.2d 222 (N.C. 2009); Fitch v. Valentine, 959
So.2d 1012 (Miss. 2007); Dowling v. Bullen, 94 P.3d 915 (Utah 2004);
Veeder v. Kennedy, 589 N.W.2d 610 (S.D. 1999). A limited recovery is
possible in Illinois, but suits are discouraged as a practical matter by
statutes limiting recovery to “actual damages,” 740 Ill. Comp. Stat. § 5/2,
and forbidding recovery of the normal damage elements such as injury to
the plaintiff’s feelings, shame, or the like. 740 Ill. Comp. Stat. § 5/4. North
Carolina has the largest number and widest breadth of recent actions. See
Misenheimer v. Burris, 637 S.E.2d 173 (N.C. 2006) (tolling criminal
conversation action under the discovery rule); Oddo v. Presser, 592 S.E.2d
195 (N.C. 2004) (affirming large compensatory and punitive damages
verdict).
20 Even when an action may be possible in theory, the absence of
decisions in the area for decades suggests the decline of the tort if not its
demise. See Hunt v. Chang, 594 P.2d 118 (Haw. 1979).
21 See Kay Kavanagh, Note, Alienation of Affections and Criminal
Conversation: Unholy Marriage in Need of Annulment, 23 Ariz. L. Rev.
323 (1981); Jamie Heard, Comment, The National Trend of Abolishing
Actions for the Alienation of a Spouse’s Affection and Mississippi’s Refusal
to Follow Suit, 28 Miss. L. Rev. 313 (2009). See also, Helsel v. Noellsch,
107 S.W.3d 231 (Mo. 2003).
22 On the relation of these and other tort claims to divorce, see Ira
Mark Ellman & Stephen D. Sugarman, Spousal Emotional Abuse as a
Tort?, 55 Md. L. Rev. 1268 (1996).
23 William R. Corbett, A Somewhat Modest Proposal to Prevent
Adultery and Save Families: Two Old Torts Looking for a New Career, 33
Ariz. St. L.J. 985 (2001). See also Jill Jones, Comment, Fanning an Old
Flame: Alienation of Affections and Criminal Conversation Revisited, 26
Pepp. L. Rev. 61 (1999).
24 McDermott v. Reynolds, 530 S.E.2d 902 (Va. 2000); Padwa v.
Hadley, 981 P.2d 1234 (N.M. Ct. App. 1999); R.E.R. v. J.G., 552 N.W.2d 27
(Minn. Ct. App. 1996); Lotring v. Philbrook, 701 A.2d 1034 (R.I. 1997).
25 E.g., Speer v. Dealy, 242 Neb. 542, 495 N.W.2d 911 (1993).
26 State ex rel. Golden v. Kaufman, 760 S.E.2d 883 (W. Va. 2014)
(breach of fiduciary duty rejected).
27 Helena Labs. Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994).
28 Brent v. Mathias, 154 So.2d 842 (Miss. 201).
29 Doe v. Doe, 747 A.2d 617 (Md. 2000) (wife’s misrepresentation of
the paternity of the children born during the marriage; barred); Koestler v.
Pollard, 162 Wis.2d 797, 471 N.W.2d 7 (1991) (defendant’s sexual
intercourse with the plaintiff’s wife resulted in conception and birth of a
child, which plaintiff discovered after a period of the defendant’s
concealment; added facts not sufficient for a claim); contra, Bailey v.
Searles-Bailey, 140 Ohio App.3d 174, 746 N.E.2d 1159 (2001) (claim
against paramour who failed to reveal that he had fathered the child
husband believed was his own; not barred but not sufficiently outrageous
for liability on intentional infliction of emotional distress theory). For an
argument that courts should allow a tort cause of action between spouses
in light of intentional lies that interfere with the establishment and
continuation of parent-child relationships, see Linda Berger, Lies Between
Mommy and Daddy: The Case for Recognizing Spousal Emotional Distress
Claims Base on Domestic Deceipt that Interferes with Parent-Child
Relationships, 33 Loy. L.A. L. Rev. 449 (2000).
(2d ed. 2011 & Supp.).
31 Smith v. Pust, 19 Cal.App.4th 263, 23 Cal.Rptr.2d 364 (1993).
32 Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996). See 2
Dobbs, Hayden & Bublick, The Law of Torts §§ 329 to 332 (2d ed. 2011 &
Supp.), on clergy malpractice, including claims based on sexual relations
in therapy.
33 Doe v. Zwelling, 620 S.E.2d 750 (Va. 2005).
34 Odenthal v. Minn. Conference of Seventh Day Adventists, 649
N.W.2d 426 (Minn. 2002); Figueiredo-Torres v. Nickel, 321 Md. 642, 584
A.2d 69 (1991); Rowe v. Bennett, 514 A.2d 802 (Me. 1986). Courts are not
of a single mind on this proposition however. See Bailey v. Faulkner, 940
So.2d 247 (Ala. 2006).
35 See Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999) (wife’s
recovery for defamation that reduced husband’s trust and good feelings for
her).
36 See Choski v. Shah, 8 So.3d 288 (Ala. 2008).
37 Khalifa v. Shannon, 945 A.2d 1244 (Md. 2008); Pickle v. Page, 252
N.Y. 474, 169 N.E. 650 (1930).
38 See § 29.11.
39 Magnuson v. O’Dea, 75 Wash. 574, 135 P. 640 (1913); Restatement
(Second) of Torts § 700 (1977).
40 See Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842,
860, 571 N.E.2d 340, 351 (1991); Khalifa v. Shannon, 404 Md. 107, 945
A.2d 1244 (2008) (mother and maternal grandmother fled to Egypt with
plaintiff’s two children).
41 Khalifa v. Shannon, 404 Md. 107, 945 A.2d 1244 (2008) (upholding
punitive damages award of $2 million in case where mother and
grandmother fled to Egypt with plaintiff’s children); Murphy v. I.S.K.Con.
of New England, Inc., 409 Mass. 842, 571 N.E.2d 340 (1991); Howell v.
Howell, 162 N.C. 283, 78 S.E. 222 (1913); Kessel v. Leavitt, 511 S.E.2d 720
(W.Va. 1998).
42 See Anonymous v. Anonymous, 672 So.2d 787 (Ala. 1995). The
Iowa Supreme Court recently outlined elements of the tort which include
the parent’s right to a custodial relationship, the defendant’s knowledge of
that right and the defendant’s willful effort to abduct, compel or induce the
child to leave in spite of that knowledge. Wolf v. Wolf, 690 N.W.2d 887
(Iowa 2005).
43 Surina v. Lucey, 168 Cal.App.3d 539, 214 Cal.Rptr. 509 (1985).
44 Id. (allegations that uncle took minor child and engaged in sexual
relations with her).
45 Robbins v. Hamburger Home for Girls, 32 Cal.App.4th 671, 38
Cal.Rptr.2d 534 (1995); Restatement (Second) of Torts § 700 cmt. e (1977).
46 Cf. Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 571
N.E.2d 340 (1991) (emotionally disturbing religious arguments not
actionable as intentional infliction of distress).
47 Matsumoto v. Matsumoto, 792 A.2d 1222 (N.J. 2002); Lozano v.
Lozano, 52 S.W.3d 141 (Tex. 2001); Stone v. Wall, 734 So.2d 1038 (Fla.
1999); Wood v. Wood, 338 N.W.2d 123 (Iowa 1983); Weirich v. Weirich, 833
S.W.2d 942 (Tex. 1992); William B. Johnson, Annotation, Liability of Legal
or Natural Parent, or One Who Aids and Abets, for Damages Resulting
from Abduction of Own Child, 49 A.L.R.4th 7 (1987); see Kessel v. Leavitt,
511 S.E.2d 720 (W.Va. 1998) (recognizing claim where plaintiff has sole
custody right and applying it to mother’s adoption placement of child out
of the country).
48 Wolf v. Wolf, 690 N.W.2d 887 (Iowa 2005).
49 Larson v. Dunn, 460 N.W.2d 39 (Minn. 1990); Mantooth v.
Richards, 557 So.2d 646 (Fla. Dist. Ct. App. 1990); Friedman v. Friedman,
79 Misc.2d 646, 361 N.Y.S.2d 108 (Sup. Ct. 1974). Politte v. Politte, 727
S.W.2d 198 (Mo. Ct. App. 1987), expressed doubts about the action but
apparently went off on the fact that the plaintiff had no custodial rights.
Mantooth, supra, was effectively set aside by the decision in Stone v. Wall,
734 So.2d 1038 (Fla. 1999), which allowed a common law action.
50 Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §
1738A; Unif. Child Custody Jurisdiction & Enforcement Act. Support of an
international convention is reflected in 42 U.S.C.A. § 11601. Expenses and
attorney fees can be recovered under § 312 of the Uniform Act where that
act applies.
51 See Larson v. Dunn, 460 N.W.2d 39, 46, 47 (Minn. 1990)
(emotional distress claim might be entertained); Joseph R. Hillebrand,
Parental Kidnapping and the Tort of Custodial Interference: Not in a
Child’s Best Interests, 25 Ind. L. Rev. 893, 915 (1991) (proposing tougher
enforcement of criminal laws against kidnaping).
52 Stevens v. Redwing, 146 F.3d 538 (8th Cir. 1998).
53 Restatement (Second) of Torts § 700 cmt. c (1977).
54 Marshak v. Marshak, 226 Conn. 652, 628 A.2d 964 (1993),
overruled by State v. Vakilzaden, 628 A.2d 964 (Conn. 1993) (holding that
a joint custodian may be subject to criminal interference statutes).
55 Rosefield v. Rosefield, 221 Cal.App.2d 431, 34 Cal.Rptr. 479
(1963); cf. Kessel v. Leavitt, 511 S.E.2d 720 (W.Va. 1998) (unwed father
has no custody rights but prevailed against child’s grandparents who
helped place the child for adoption outside the country as soon as he was
born).
56 See Wolf v. Wolf, 690 N.W.2d 887 (Iowa 2005). The Connecticut
Supreme Court has now held, in a criminal prosecution, that “a joint
custodian is not inherently immune … based solely on his or her status as
joint custodian” where all the elements of custodial interference are
proved, including both knowledge and intent. State v. Valkilzaden, 251
Conn. 656, 742 A.2d 767 (1999).
57 Streeter v. Executive Jet Mgmt., Inc., 2005 WL 4357633 (Conn.
Super. Ct. 2005) (unpublished opinion).
58 Collins v. Mo. Bar Plan, 157 S.W.3d 726 (Mo. Ct. App. 2005).
59 In Wyatt v. McDermott, 283 Va. 685, 725 S.E.2d 555 (2012), the
court, answering a certified question, held that Virginia recognizes a
common law action for tortious interference with parental rights. The
elements of the cause of action are: (1) the complaining parent has a right
to custody; (2) a party outside the relationship between the complaining
parent and the child intentionally interfered with that relationship; (3)
and caused harm to the custodial or parental relationship; (4) causing
damages. The court traced the cause of action back to at least 1607.
60 Wilson v. Bernet, 218 W.Va. 628, 625 S.E.2d 706 (2005) (expert
witness in a child custody hearing, testified in support of the wife’s
custody; wife prevailed; complete immunity of adverse witnesses;
testimony was not like removing the child or detaining him and not the
kind of conduct that would be actionable).
61 Myers v. Lashley, 44 P.3d 553 (Okla. 2002).
62 Politte v. Politte, 727 S.W.2d 198 (Mo. Ct. App. 1987).
63 Hixon v. Buchberger, 306 Md. 72, 507 A.2d 607 (1986).
64 Khalifa v. Shannon, 945 A.2d 1244 (Md. 2008); Brown v. Denny,
72 Ohio App.3d 417, 594 N.E.2d 1008 (1991) (under statute); Hershey v.
Hershey, 467 N.W.2d 484 (S.D. 1991). Even if a court does not allow an
interference with custody claim when one parent removes the child so that
visitation rights are thwarted, it may allow a similar claim under another
name. See Stewart v. Walker, 5 So.3d 746 (Fl. Ct. App. 2009) (father did
not have standing to claim tortious interference in parent-child
relationship, but did have standing to claim intentional infliction of
emotional distress when mother took the child out of state without father’s
consent).
65 Cosner v. Ridinger, 882 P.2d 1243 (Wyo. 1994).
67 On the wrongs of this system, see Lea Vandervelde, The Legal
Ways of Seduction, 48 Stan. L. Rev. 817 (1996).
68 See Franklin v. Hill, 264 Ga. 302, 444 S.E.2d 778 (1994) (statute
applying only to men unconstitutional).
69 See Piggott v. Miller, 557 S.W.2d 692 (Mo. Ct. App. 1977); Lea
Vandervelde, The Legal Ways of Seduction, 48 Stan. L. Rev. 817 (1996).
70 Many discussions treat the claim as one of “fraud,” focusing on the
misrepresentation required to invalidate the plaintiff’s consent. See Jane
E. Larson, “Women Understand So Little, They Call My Good Nature
‘Deceit’ ”: A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374
(1993) (proposing a tort of sexual fraud). With consent invalidated,
however, the sexual touching perfectly fits the definition of battery as well.
71 N.Y. Civ. Rights Law § 80–a; Okla. Stat. tit. 76, § 8.1 (as to
persons of legal age and sound mind).
72 Taylor v. Keefe, 134 Conn. 156, 56 A.2d 768 (1947); Whitcomb v.
Huffington, 180 Kan. 340, 304 P.2d 465 (1956). See Jeffery F. Ghent,
Annotation, Right of Child or Parent to Recover for Alienation of Other’s
Affections, 60 A.L.R.3d 931 (1975). Contra Johnson v. Luhman, 330
Ill.App. 598, 71 N.E.2d 810 (1947); Miller v. Monsen, 228 Minn. 400, 37
N.W.2d 543 (1949).
73 Stevens v. Redwing, 146 F.3d 538 (8th Cir. 1998) (holding also
that this rule is not to be circumvented by allowing an emotional distress
claim); Restatement Second of Torts § 699 (1977). Cf. Mackintosh v.
Carter, 451 N.W.2d 285 (S.D. 1990) (defendants providing shelter to child
when they reasonably thought she was in danger).
74 See Kane v. Quigley, 1 Ohio St.2d 1, 203 N.E.2d 338 (1964).
Defamation of a family member, however, is distinguishable because,
unlike the claim for interference and emotional harm, it now requires at
least a publication of a falsehood. See Tuman v. Genesis Assocs., 894
F.Supp. 183 (E.D. Pa. 1995).
75 Strode v. Gleason, 9 Wash.App. 13, 510 P.2d 250 (1973). Hershey
v. Hershey, 467 N.W.2d 484 (S.D. 1991), allowed recovery where the child
was taken from the jurisdiction and hidden until he reached adulthood,
calling the claim one for alienation of affections.
76 E.g., Stevens v. Stevens, 977 S.W.2d 305 (Mo. Ct. App. 1998).
77 J.A.H. v. Wadle & Assocs., 589 N.W.2d 256 (Iowa 1999) (public
policy: confidentiality and divided loyalties of therapist would ensue if
liability is imposed; in any event, no negligent treatment was proven);
Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994). Contra Montoya v. Bebensee,
761 P.2d 285 (Colo. Ct. App. 1988).
78 See Zamstein v. Marvasti, 240 Conn. 549, 561, 692 A.2d 781, 787
(1997); Doe v. McKay, 183 Ill.2d 272, 700 N.E.2d 1018, 233 Ill.Dec. 310
(1998); cf. Ryder v. Mitchell, 54 P.3d 885 (Colo. 2002) (mother’s suit
against her children’s therapist for communicating to their father a
diagnosis unfavorable to mother was not actionable; the therapist had
duty only to her patients, since a threat of liability could present a barrier
to appropriate treatment of the patient). Similarly, so far as the claim is
based on reporting suspected child abuse, statutory privileges will usually
protect the therapist. See Myers v. Lashley, 44 P.3d 553 (Okla. 2002).
1059
Subpart B
ECONOMIC TORTS
Chapter 41
ECONOMIC TORTS AND ECONOMIC

LOSS RULES
Analysis
A. ECONOMIC LOSS: AN INTRODUCTION
§ 41.2 Specific Economic Torts vs. General Negligence Claims for
Economic Loss
§ 41.3 The Core Economic Loss Rules: Contracting Parties and
Strangers
B. NEGLIGENT ECONOMIC LOSS IN THE STRANGER CONTEXT
§ 41.5 Strangers: Negligence Toward a Third Person Causing Economic
Loss to the Plaintiff
§ 41.6 Strangers: General Nonliability for Negligently Caused Stand-
Alone Economic Harm
§ 41.7 Strangers: Policies or Rationales for Limiting Liability
C. NEGLIGENT ECONOMIC LOSS AND CONTRACTING PARTIES
§ 41.9 Contracting Parties: The Economic Loss Rule Generally
§ 41.10 Contracting Parties: Rationales and Policies for the Economic
Loss Rule
D. SCOPE AND EXCEPTIONS
§ 41.11 Scope of and Exceptions to the No-Duty Economic Loss Rule
__________
A. ECONOMIC LOSS: AN INTRODUCTION

Scope of the chapter. This chapter summarizes the general
economic loss rules in ordinary negligence cases and their two
basic forms, along with general exceptions and rationales. Many
particular economic torts are discussed in the following chapters.
The economic torts now constitute a major portion of tort law, and
have increasingly drawn the attention of commentators in this
country.1 However, at present, the most detailed
1060
studies in this area have come from Australian, Canadian,

European and English scholars and lawyers.2
Pure economic loss. Economic harms or losses are financial costs
to the plaintiff that do not arise from personal injury to the
plaintiff or damage to tangible property in which the plaintiff has a
legally recognized possessory or ownership interest.3 To take a
single example of such pure economic loss, the defendant might
negligently block access to the plaintiff’s retail store, without
trespassing or harming the property itself. In such a case, the
plaintiff’s only claim is for pure economic loss that results because
customers could not reach the store. Such a claim for pure
economic loss will often be rejected under one of the economic loss
rules.4
Economic loss as an item of damages versus economic torts. Any
kind of tort can cause financial harm. A personal injury tort may
result in medical bills and wage loss. Physical harm to property
can reduce the value of the property or result in repair costs. Even
emotional harms without physical injury may result in medical
costs and lost wages. In all such cases, however, the economic loss
is not itself the tort; it is only an item of damages resulting from a
personal or a property tort. In contrast, economic torts inflict
pecuniary or financial costs upon the plaintiff that do not result
from injury to person or property or even from stand-alone
emotional distress.5 The first category—torts to person and
tangible property accompanied by economic loss—are not economic
torts and come under none of the strictures applied to economic
tort claims. Special rules are for pure economic loss claims.
§ 41.2 Specific Economic Torts vs. General
Negligence Claims for Economic Loss
Overview. With parties who have no contract-like relationship,
pure economic loss is addressed in tort law in two different ways
that are treated completely differently. The first is through
recognized tort causes of action. The second is through ordinary
negligence claims seeking recovery for pure economic loss.
Addressing economic harm in specific or named economic torts.
In the first approach, tortious acts causing pure economic harm are
traditionally dealt with under the rules of specific or named
economic torts developed to address particular kinds of economic
harm cases. For example, the action of “deceit” provides redress for
economic harm caused by fraud that induced the plaintiff to enter
a contract; the action of injurious falsehood or commercial
disparagement provides redress for economic harm caused by false
statements about the plaintiff’s products. These and other torts
aimed at specific kinds
1061
of acts are supplemented by a catch-all pair of torts—

interference with contract and interference with economic
opportunity. Although all of these torts have their own rules and
are considered in the chapters that follow, the significant thing
about them in the present chapter is that with the most limited
exceptions,6 they reject liability based upon negligence, requiring
instead intent or “malice” unless the parties are in a special
relationship, such as, for example, the special relationship of
lawyer and client.
Addressing economic harm in ordinary negligence claims. A
radically different way of addressing claims for pure economic
harm is to assert a claim for ordinary negligence, or possibly strict
liability.7 But if courts were to permit recovery for general
negligence in a case addressed by one of the named economic torts,
they would be negating the rules against negligence liability that
are established in the named torts. Logically, then, if a named or
more specific economic tort addresses the kind of facts the plaintiff
presents, the plaintiff’s claim should stand or fall under the rules
for that tort, not under a general negligence theory, much less
under a theory of strict liability.8
Effects of economic loss rules on the ordinary negligence claims.
Economic loss rules are applied in claims asserting ordinary
negligence for economic harm. Economic loss rules tend to exclude
liability for mere negligence, although there are exceptions. For
example, the Restatment Third of Torts, in its very first rule,
establishes that “An actor has no general duty to avoid the
unintentional infliction of economic loss on another,” and then
recognizes exceptions for some forms of professional negligence,
negligent misrepresentation and negligent performance of
services.9 That brings the specific-tort approach and the negligence
approach into a degree of harmony where the facts in issue are
addressed by some specific tort. At the very least, coherence and
consistency demand that in considering the negligence claims for
pure economic loss, the named economic torts must be considered
wherever they address the issues before the court. However, the
economic loss rules in negligence cases may go further; economic
loss rules might deny economic harm claims that are not addressed
at all by the specific economic torts.
§ 41.3 The Core Economic Loss Rules: Contracting
Parties and Strangers
Economic loss rules in context. In reality, courts very often
reject liability for pure economic loss caused by negligence. In
doing so, they often refer to “the” economic loss rule, mainly
meaning that defendants are not liable for mere negligence that
causes pure economic harm, much less are they strictly liable.10
But because negligent infliction of stand-alone economic harm
sometimes suffices for liability and sometimes not, commentators
have doubted whether any single normative principle lies behind
the
1062
economic loss rule’s rejection of many potential claims. They

have correspondingly suggested that details and factual contexts
are likely to be more compelling than a sweeping rule.11 It is also
possible that in some instances liability for pure economic harm is
rejected under the tort no-duty rules of particular torts rather than
because of the economic loss rule.12 Economic losses arise in
several distinctive situations, supported by different rationales and
requiring different analyses.13 Any reference to “the” economic loss
rule in this treatise is therefore a reference to the particular
economic loss rule relevant in the specific discussion and is not
intended to suggest that there is a single over-arching rule.
Contracting parties. When the plaintiff and defendant have a
contract that can be treated as allocating the relevant economic
risks, tort liability for those risks would undermine the parties’
contractual ordering of responsibilities. Accordingly, as to pure
economic harm, such contracts usually replace the tort duty of
reasonable care and sometimes other tort duties as well, leaving
the plaintiff to any contract action she might have.14 The contract
action may also be barred, for example by disclaimers, statutes of
limitation or damages limitations. In that case, the plaintiff will
have neither a contract nor a tort action against a negligent
defendant. The Restatement Third15 and some courts16 have
adopted the term “economic loss rule” to apply only in the context
of contracting parties.
Non-contracting strangers. The plaintiff’s economic harm claim
may also be barred when the parties are strangers, which is to say
when they are not in a contractual relationship. Some courts have
considered this too as one of the economic loss rules.17 However,
other courts reject liability for negligence causing pure economic
harm on a different ground—the relevant tort does not recognize
negligence as a basis for a tort action, as in the case of interference
with contract or business opportunity.18 In an ordinary negligence
action, the plaintiff also may be denied all recovery for pure
1063
economic loss on the ground that there is generally no liability

for negligently inflicted economic harm, as where the defendant
negligently injures the plaintiff’s key employee, with resulting
business losses to the plaintiff.19 The general approach of denying
liability for negligently inflicted economic harm is the approach
taken by the Restatement Third of Torts.20 However, it must
always be borne in mind that there are exceptions to this economic
loss rule.21
Contracting parties and strangers: a continuum of relationships.
The reasons for denying tort liability in the two kinds of cases are
different. The case of non-contracting parties may involve concerns
about unpredictable and limitless liabilities, but the case of
contracting parties involves the policy of honoring the contract. For
this reason—because the scope of the rules is different—it is
important to distinguish the two patterns. At the same time it may
be important to recognize that relationships of the parties may be
neither clear-cut, direct-contract relationships nor total stranger
relationships. Many two-party contracts may also be part of a
single project involving other parties. For example, architects or
engineers may contract only with a landowner, but they know that
building contractors and subcontractors will rely on their plans in
bidding. Banks and financial institutions involved in the huge,
many-layered credit card industry may construct multiple bilateral
contracts, creating a web of relationships which affect, say, victims
of identity theft who may have no contract at all. In such cases, it
may be worthwhile to recognize a continuum of relationships, some
of which might create tort duties.
Factual categories of economic torts. Economic torts can be
categorized in many different ways. The following five categories
suggest the general factual settings for economic torts. They cover
most of the common economic tort cases:
(1) The defendant’s improper communications to third
persons cause the plaintiff financial harm.
(2) The defendant’s false statements to the plaintiff
herself induce the plaintiff to enter into an economically
damaging transaction.
(3) The defendant appropriates some intangible value
belonging to the plaintiff, a trade secret, for example.
(4) The defendant provides a defective tangible product
or services, causing pure economic harm such as losses in
production or added costs without physical harm to other
property.
(5) The defendant causes physical harm to person or
property of another person which in turn causes pure
economic harm to the plaintiff.
It must be remembered that in all these categories, the putative
tort is an economic tort and invokes the economic tort rules only if
the plaintiff’s economic harm does not result
1064
from physical harm to the plaintiff’s person or property22 or from a

personal tort such as defamation.
Communications to others causing stand-alone economic harm.
One type of economic harm occurs when the defendant
communicates, not to the plaintiff, but to third persons. For
example, the defendant tells the plaintiff’s customers that the
plaintiff is selling goods with hidden defects. If some customers
cease buying from the plaintiff as a result, the plaintiff has a
potential claim for intentional interference with business relations
or contract23 and perhaps also a claim for product
disparagement.24 But negligence alone seldom suffices in this
category. Courts have even held that banks are free to act
negligently in providing credit cards in the plaintiff’s name to
imposters whose identity theft then results in financial harm to the
plaintiff.25
Communications to the plaintiff causing stand-alone economic
harm. The category of economic torts based on communications to
the plaintiff consists almost entirely of claims for fraud, deceit, or
misrepresentation. These claims arise mainly in bargaining
transactions between the plaintiff and defendant. For example, the
defendant falsely represents that an oil painting is a Titian when
in fact it is a modern copy and worth little. The plaintiff who buys
in reliance may have an economic tort claim to recover for his loss
or perhaps for the loss of his expected gain in the transaction. In
the category of economic harm resulting from communications to
the plaintiff, litigation may raise a number of issues—whether the
plaintiff relied on the statement, whether the plaintiff was justified
in relying, whether the statement was merely a promise about the
future that can be redressed only through a contract claim,
whether the statement was an intentional falsehood and if not
whether negligence or strict liability could be a sufficient ground
for relief.26 A number of courts have now applied the economic loss
rule not only to bar negligence claims but also to bar claims for
intentional fraud where that fraud is related to the subject matter
of the contract.27
Misappropriation of intangible values. Much of the economic
value in the world today lies outside the realm of tangible property.
Stocks and bonds, promissory notes, trade secrets, performance
rights, trademarks, copyright, and patents are examples. In
contrast to the single set of rules involved in misrepresentations to
the plaintiff, the rules in misappropriation cases vary with the
particular kind of tort claimed or interest asserted. For example,
the rules of copyright (based on statute)28 are not like the rules of
patent or trademark.29 Trade secrets could be protected by an
expansive notion of the
1065
ancient tort of conversion,30 but trade secret law may represent

the exclusive approach in that particular instance, leaving claims
for conversion of intangibles for other interests.31 Here again there
are possible overlaps and preemption issues. The right of publicity
—rights in certain commercially valuable personae32—may overlap
and tread upon the rules of copyright, for example.
Supplying defective chattels, services, or real property. Defective
products may cause economic loss if they do not work well; but so
long as they do not cause physical harm to person or property other
than the product itself,33 most courts invoke the economic loss rule
to reject tort liability. In products cases, for example, courts limit
the manufacturer’s liability to contract or warranty claims34 unless
the defendant commits a tort that is somehow “independent” of the
contract and unrelated to the protection the contract afforded.35
The same rule has been applied to cases of defective real property36
and, somewhat unevenly, to services.37 The Restatement Third of
Torts recognizes liability in this situation in limited situations.38
Harm to another’s interest with indirect economic harm to the
plaintiff. Almost everyone is dependent to some degree upon other
people. For example, a product manufacturer is dependent upon
power supplies from the electric company, but does not own the
electrical equipment that generates electricity. A defendant who
negligently destroys the generating plant may cause the
manufacturer to lose production and thus to lose sales. In such a
case, however, the manufacturing company that suffers no physical
harm to its own property is likely to find that the economic loss
rule bars any claim for lost production and lost profits.39
B. NEGLIGENT ECONOMIC LOSS IN THE
STRANGER CONTEXT
§ 41.5 Strangers: Negligence Toward a Third
Person Causing Economic Loss to the Plaintiff
Physical harm to A’s property resulting in stand-alone economic
harm to B. A stranger who negligently, but not intentionally,
causes physical harm to one person or his property, with resulting
economic harm to another person, is not liable for that
1066
economic harm. The leading case, Robins Dry Dock & Repair
Co. v. Flint,40 long ago established that a defendant owed no duty
of care to protect the plaintiff from pure economic loss merely
because it harmed property of a third person in which the plaintiff
had no possessory or ownership interests. This was the rule, even
though the defendant’s negligence caused physical damage to the
third person or his property and that damage resulted in economic
loss to the plaintiff. The Third Restatement is in accord with the
traditional rule.41 Of course, wrongful death statutes provide an
exception to the general rule.
The Robins case. The defendant in Robins, carrying out a
contract with A to do maintenance work on A’s sea-going vessel,
actually caused damage to the vessel. That damage required
further repairs. During the added repair period, the plaintiff was
unable to exercise his right to transport goods on the ship and
suffered economic loss as a result. But the plaintiff had no
possessory or property interest in the ship itself, and the Supreme
Court, in an opinion by Justice Holmes, held that the plaintiff had
no cause of action based on the defendant’s negligent physical
harm to the vessel owned by another. Two easily acceptable
corollaries apply the same rule to deny liability to the plaintiff
when the defendant negligently causes either physical42 or pure
economic harm to A with resulting economic loss to the plaintiff.43
A number of illustrative cases are given in the discussion of
negligent interference with contract or economic opportunity.44
Foreseeability. Under the Robins rule, liability for the plaintiff’s
pure economic loss is rejected even if the defendant could foresee
economic harm to the plaintiff, which is to
1067
say the rule is a bright-line, no-duty rule.45 The rule is thus not
merely an application of the Palsgraf foreseeability rule.46
Interruptions of power or supplies. Another version of the basic
idea in Robins occurs when the defendant causes harm to the
property of a supplier who provides the plaintiff with goods or
power necessary to operate the plaintiff’s business, with the result
that the business is interrupted without physical harm to any
property of the plaintiff. In such cases, courts have applied the rule
to exclude the liability of the negligent defendant.47
Negligently blocking walks or highways, reducing traffic to the
plaintiff’s business. Similarly, a business may lose customers
because traffic is reduced after the defendant’s negligence requires
closure of a bridge, but no claim for economic loss lies against the
negligent defendant48 unless the business owner’s property right is
invaded by denial of access to her land.49
An illustration. The principle was dramatically illustrated when
two buildings collapsed in Manhattan in 1997 and 1998. Streets
were closed and businesses served by those streets suffered
economic losses without physical harms. The New York Court of
Appeals rejected recovery, holding that although a building owner
owes duties to those with whom it has a special relationship, the
vast number of claims that could arise in an urban disaster
required the court to hold that stand-alone economic loss was
beyond the scope of the defendant’s duty.50 Under the same
general principle, a contractor whose work is delayed because of
pollution is denied recovery for his purely economic loss.51
Limitations: independent duty to the plaintiff. The economic loss
rules mean that a duty owed by the defendant to a third person
does not, by itself, show that the defendant owed a duty to protect
the plaintiff against economic harm. Although the plaintiff can
1068
get no advantage from a breach of defendant’s duty to a third

person, the defendant might owe a second, independent duty to the
plaintiff’s economic interests, as through a special relationship
with the plaintiff.52 Statutes can also create a duty to protect the
plaintiff’s economic interests; wrongful death statutes allow certain
family members to recover for economic losses that arise from
negligent physical harm to others.
Limitations: Third party beneficiary under contract law. The
Robins rule bars the tort claim for negligence but does not bar a
contract claim. If the Robins plaintiff had been a third party
beneficiary of the contract and the defendant’s acts constituted a
breach, the plaintiff could have been permitted to recover under
the contract, though not in tort.
Limitations: economic loss accompanying physical injury to
person or property. Unless barred by some other rules, a plaintiff
whose own person or property is injured can recover in tort for
accompanying economic harm.53 In Robins, the plaintiff’s problem
as the Court saw it was that he did not have a property interest in
the vessel; he had only a contract right under which A would carry
the goods, not a leasehold interest or “demise.” If the third party
had a property interest in the vessel, the case might well have
come out differently. In a number of cases the defendant
negligently pollutes waters and commercial fishers have been
allowed recovery for their purely economic losses.54 Such cases are
sometimes viewed as public nuisance cases with special private
harm,55 or as a limited property interest in the waters, not
extended to others.56
§ 41.6 Strangers: General Nonliability for
Negligently Caused Stand-Alone Economic
Harm
Negligence generally an insufficient basis for liability. In the
absence of an exception or a particular tort duty, liability is
generally not imposed upon strangers—those not in privity or
near-privity—for negligent infliction of pure economic harm.57 Put
differently, when strangers negligently cause economic harm to the
plaintiff without causing physical harm to the person or property of
others, the general rule typically bars the
1069
claim for negligence.58 In some jurisdictions, this is considered

one form of the economic loss rule.59 In others, the economic loss
rule only involves claims by a plaintiff who has a contractual, or at
least near-privity relationship with the defendant.60 The
Restatement Third has sided with this latter group and used the
term “economic loss rule” solely in conjunction with contracting
parties,61 although the Restatement also would generally deny
liability in the stranger context, just under the general rule that
“An actor has no general duty to avoid the unintentional infliction
of economic loss on another.”62 Whatever the terminology, the rule
in effect says there is no general tort duty to use reasonable care to
protect strangers from pure economic harm and it has been held to
bar consumers as well as sophisticated or entrepreneurial
plaintiffs.
Overstatements of the stranger rule. Courts have at times stated
the stranger rule too broadly, for example, by stating it as a flat
rule rather than as a rule to be applied generally, but subject to
exceptions.63 Courts have also sometimes said that the rule bars
tort actions instead of negligence and strict liability actions,
implying, perhaps unintentionally, that the rule also bars actions
for intentional torts.64 It is true that where the parties, plaintiff,
and defendant are in contractual relationship, even claims for
intentional torts may be barred under some circumstances,65 but
that is not the case with the rule applied in stranger cases. For
instance, the tort of intentional interference with contract is well
established.
Economic loss rule: basis in rules of specific or named economic
torts. The economic loss rule in stranger cases is less a matter of
capturing the verbal expressions of courts than a matter of
capturing their usual actions. As already stated, the economic loss
rule in stranger cases reflects the common rules of specific
economic torts, which, with the limited exception of negligent
misrepresentation,66 generally require more than negligence to
support liability.67 Thus many cases of economic loss fit within the
concept of interference with contract or interference with economic
relations, and the firm rule for those interference cases is that no
action will lie for mere negligence.68 This rule against negligence
liability can be seen as a specific instance of the more broadly
stated
1070
economic loss rule as applied among strangers.69 In other

words, the stranger economic loss rule is a generalization of the
near-uniform rules of specific economic torts. In cases of this kind,
the economic loss rule for strangers is merely a recognition that the
rule of torts designed to deal with the specific situation should not
be subverted simply by calling the claim one for negligence rather
than, say, interference with contract or some other specific
economic tort.70 For these reasons, even if an economic loss rule is
not invoked by name, negligent infliction of stand-alone economic
harm is still not ordinarily sufficient for liability.71 A number of
examples are discussed elsewhere.72
Clarifying the role of the economic loss rule in stranger cases.
From what has just been said, it seems apparent that the economic
loss, no-duty rule in stranger cases is partly a way of saying that
the rules of specific economic torts with usual rejection of the
negligence basis of liability are not to be subverted simply by
treating the claim as a negligence action instead of one for
intentional interference with contract.73
Privity. Courts long ago eliminated the need to show privity in
most tort cases,74 retaining the requirement for only contract
claims. Privity can be relevant in economic loss claims, however,
because the reasons for barring such claims and hence the scope of
the rules differ according to whether the parties are in a
contractual or semi-contractual relationship or whether they are
strangers.75 Defendants who have tried to make economic loss
arguments in terms of privity rather in terms of the principles may
have confused the issue and perhaps have made it easy for courts
to reject their arguments.76
1071
As courts have sometimes said, in many of the stranger or non-

privity cases, the concern is not privity as such but the risk of
indeterminate liability.77
§ 41.7 Strangers: Policies or Rationales for
Limiting Liability
General policies for excluding liability based on negligence
alone: economic freedom. Several reasons support the rule
requiring intent—or sometimes “malice”—for most economic torts,
although those reasons may vary with the factual context.78 In
general, freedom to act in the economic sphere for self-interest and
competition is a generally accepted policy. Liability for mere
negligence could undermine competition and economic freedom, at
least in many circumstances, especially where the parties have
adverse economic interests.
Suggesting limits to economic freedom rationale. Limits to this
rationale have not been much explored in the cases and probably
should be. The economic freedom rationale seems inapplicable, for
instance, where both the plaintiff and the defendant have
unconditional economic interests that would be served by the
defendant’s reasonable care. Suppose a gas company negligently
marks the location of its underground gas lines for an excavator,
thus leading the excavator to operate in the wrong area, with
damage to the pipes. Necessary repair of the pipes delays the
excavator’s work, to the excavator’s resulting economic loss. In
such a case, the economic loss rule seems to serves none of the
defendant’s interests in economic freedom to negligently mark the
pipes’ location. On the contrary, the defendant’s interest is to use
reasonable care, since damaged or exploding gas lines can cause it
significant damage. Nor would the defendant’s cost of making
reasonably accurate markings be a factor in favor of eliminating
the duty of care, since, again, reasonably careful marking is to the
company’s own interest.79 When the parties’ interests are not
adversarial on the issue involved, or not entrepreneurial, it may be
that courts should weigh the value of no-duty rule solely in light of
the other rationales.
Indeterminate liability and the domino effect. An unmitigated
statement of the no-duty or economic loss rule in stranger cases is
a very broad and general response to a narrow and particular
problem. In some cases, A’s economic loss is likely to cause a new
economic loss to B, and B’s loss likely to cause one to C, with no
predictable end in sight. This domino effect is one that cannot be
calculated by the defendant and probably not efficiently insured
for.80 Something similar can be said when the defendant’s
negligence toward A could result in unlimited liabilities to parties
whose number and economic losses cannot be guessed in advance,
as where the defendant accountant erroneously certifies that A has
a large net worth, with the result that many lenders separately
lose money investing in A’s failing enterprise.81 Liability “in an
indeterminate amount for an
1072
indeterminate time to an indeterminate class”82 is likely to

impact both fairness and the policy of free economic activities.
Examples. The domino effect is a real risk when a third party’s
goods or property used in commerce are damaged or access to them
is delayed. If the defendant negligently damages A’s ship, shippers
who would have used the vessel for shipping food to foreign buyers
will lose profits. The foreign buyers will then have economic losses
because they will not have the goods for resale to foreign
manufactures of food products. Similarly, closure of a river due to
the defendant’s oil spill or toxic contamination may bring river
transport to a halt with the same domino effect and collateral
economic effects as well.
Drawing boundaries on the negligence tort. Somewhat
differently, it may be difficult in many cases to draw appropriate
boundaries on liability for negligence. An employee who sleeps late
one Monday morning might reduce his employer’s production,
which in turn may have further effects on others in the economic
world. But negligent sleeping sounds like a tort no one would want
to recognize as a ground for recovery of economic loss.
The traffic cop function—economic loss rule directs the claim to
the most appropriate rules. A rule imposing liability for negligence
alone in all economic harm cases would sabotage the rules crafted
for many particular torts. Economic harm from commercial
disparagement or conversion of intangibles or interference with
contract would become actionable upon proof of negligence alone,
contrary to many of the rules applied in those and other particular
torts. Consequently, it has been argued that the general rule
against negligence liability for economic harms is a kind of
intellectual traffic cop, channeling claims to the tort rules that
most specifically apply.83 The rule functions in part to preserve the
integrity of other tort rules. An illustration of the argument is in
cases of harm to reputation causing economic loss. Often, though
not always, negligence cases asserting these harms are displaced
by the laws of specific torts.84
The rule or practice is usually normatively right. In the absence
of more specific rules addressed to particular conduct, it may be
argued that strangers should not usually be required to exercise
reasonable care for the protection of others’ economic well-being.
Perhaps a worker can foresee that if he negligently delays repairs
on my truck, others who count on me to haul their goods will lose
their profits. But maybe the worker should not be required to
consider the potential loss to non-owners unless they are third
party beneficiaries.
Economic losses are not social losses. Some economic thinkers,
like Judge Posner, hold that economic losses are not social losses
and that only social losses should be compensated.85 Judge Posner
has pointed out that economic harm to one person often means
economic gain to another. He suggested that “since the tortfeasor is
not entitled to sue for the benefits, neither should he have to pay
for the losses.”86 Perhaps, however,
1073
many would argue that a particular individual’s right to

economic security should not turn on whether there is a net social
loss but instead on considerations of fairness and justice, at least in
part.
Policies opposed to economic loss limitations. Although some of
the reasons just discussed do indeed support a limited application
of the stranger economic loss rules, there are also reasons to
impose measured liability for some economic harms caused by
negligence, certainly reasons not to overstate the rules against
liability, and these reasons come from the heart of tort law. Prima
facie, essential fairness requires that when one person’s fault
causes harm to another, the person at fault should recompense the
victim for the harms done to the victim. That is a settled policy—or
sense of justice—in tort law, although pragmatic concerns, such as
the concern about indeterminate liability, may override that policy
in some instances. A distinct reason is deterrence; if negligent
activity carries risks to others but the tortfeasor is not held
accountable for the harm done, he will have little or no motive to
take appropriate precautions. Here again, pragmatic concerns may
call for a different answer in particular cases, but a general
absolution that forgives all economic torts in advance is
unwarranted. For these reasons, a measured and careful
delineation of the stranger rules and careful attention to the
exceptions and other limitations is especially desirable.
Exceptions—when negligence is a sufficient basis for liability.
The general rule in stranger cases does not bar negligence claims
against a defendant who is under a specific duty to use reasonable
care for plaintiff’s economic interests, or when special reasons of
principle and policy warrant a different rule.
Special Relationship
Special relationship rule. The economic loss rule does not bar
claims against defendants who have undertaken tort duties to
protect economic interests87 or against those who are in a special
relationship which creates such a duty88 independent of the
contract duty. Special relationship is a capacious and open-ended
term, and it is meant to be. It includes any relationship of the
parties that courts believe calls for a duty of reasonable care with
respect to pure economic loss, all things considered.89
Examples of special relationship. Among those who are subject
to liability for negligent infliction of economic harm because of
undertakings or special relationships
1074
are engineers,90 fiduciaries,91 attorneys,92 accountants,93 expert

witnesses retained to testify in litigation or provide support
services in litigation,94 insurance brokers,95 notaries,96 and
sometimes even title insurers who perform a negligent title
search.97
Transferred Loss
The indeterminate liability problem and transferred or single
loss. Another case in which courts may decide to recognize a duty is
when principle or policy warrants an exception. One of the
foundation policies for the economic loss rule in litigation between
persons who are not in contractual privity with one another is to
avoid the risk of indeterminate liability for an indeterminate time
and to an indeterminate class—that is, to avoid the domino effect
that occurs when each economic loss begets another.98 That policy
has no application, however, when the defendant’s negligence
causes a harm that falls upon a single person without the risk of
creating new economic losses for others.
Transferred loss terminology. The term “transferred loss” refers
to a particular type of case in which the defendant’s negligence
causes economic harm to A, but in which the loss is transferred, by
contract or otherwise, to another person, and in which liability is
determinate, without the risk of harms and liabilities to others
downstream. The term
1075
“single loss” includes the case of transferred loss and also the
case where only one loss can be suffered, regardless of transfer.99
Where the plaintiff establishes a transferred or single loss, the
claim cannot logically be rejected on grounds associated with the
problem of indeterminate liability.
State of conceptual development. The concept is widely
recognized in discussions of Canadian and European law100 under
the name of transferred loss. American courts have not yet
developed a jurisprudence on this topic by name. However, the
pattern of the cases mentioned below, and sometimes explicit
recognition of the policy,101 show that the single loss concept has
power.
The surveyor example of transferred loss. In a number of cases, a
surveyor negligently surveys land on behalf of A, erroneously
marking the boundaries. As a result, A buys the land at a price
that proves excessive for the actual size of the parcel, or A builds
structures that are not entirely on the land. Before the error is
discovered, A sells the property to B, who ultimately suffers
economic loss when he must move or destroy the structures or
when the parcel proves to be smaller than shown on the survey.
Significant characteristics of the transferred loss case. The
special characteristic of cases of this type is that no matter how
many times the property is sold to a new owner, only one of the
sales will ultimately produce an economic loss. If A discovered the
error and sued, the surveyor would have been liable to him. If
ownership is transferred to B and B is the one who discovers the
error, then the surveyor will be liable to him, but not to A.102 The
loss for which the surveyor is liable is not increased because it is B
who sues; it is the same loss for which the surveyor would be liable
had it been discovered by A at the same time. It is therefore no
surprise that courts find some ground on which impose liability in
surveyor cases like this.103 The same is true with notaries who
negligently misidentify a party to a deed or other document,
leaving someone to bear the loss of ownership, although it cannot
be known in advance which party that will be.104 In many of these
cases, the analogy is to subrogation or assignment of A’s claim.
Since the defendant breached a duty to A, he is not prejudiced by
the law’s recognition that B was
1076
the party who suffered the loss any more than he would be
prejudiced by A’s assignment of the claim to B.
Another example. Termite inspectors, whose negligent reports
permit sellers to obtain full price for a building that is in fact
riddled with termites, have likewise been held liable to the
subsequent buyers who suffer the loss.105 Once again, it must be
said that many of these cases rely on the ideas and precedents
associated with negligent misrepresentation.106
Statutes
Statutes. If courts do not create common law liability for
negligently caused economic harms, legislatures are, of course, free
to create statutory causes of action. State consumer fraud acts
often permit such recoveries. Similarly, one federal statute imposes
liability for economic harm in the case of oil spills in navigable
waters.107 Another, the Medical Care Recovery Act, allows the
federal government to recover its economic costs in treating a
member of the armed forces who is injured by a tortfeasor.108 This
is not necessarily a rejection of the common law rule but a
compliment to it. Legislatures can supplement and define
recoveries for negligently caused economic loss.
Cases Rejecting the General Rule
Cases that seemed to reject the usual rule. Some common law
cases may once have seemed to discard the stranger economic loss
rule more generally. One leading case in this regard was People
Express Airlines, Inc. v. Consolidated Rail Corp.,109 where the
defendant allegedly handled dangerous chemicals negligently with
the result that the plaintiff’s airline office had to be evacuated. No
physical harm was done, but the plaintiff lost profits when
business operations were shut down. Possibly the plaintiff could
have claimed a right to recover on the authority of public
nuisance/private harm cases, because the defendant in effect
blocked access to the plaintiff’s business, but that argument was
not directly in issue.110 Instead, the court concluded that the
general rule against liability was wrong. It held that the defendant
would owe a duty of reasonable care to protect against economic
harm when “particular plaintiffs or plaintiffs comprising an
identifiable class” suffered stand-alone economic harm, provided
the defendant knew or had reason to know that such harm was
likely. Other cases that tend to support a broad recovery for
negligent interference with economc interests are Mattingly v.
Sheldon Jackson College,111 and J’Aire Corp v. Gregory.112 More
than 30 or
1077
40 years old at this writing, those cases have sometime
generated anomalies113 but have garnered almost no lasting
support outside their home states.
C. NEGLIGENT ECONOMIC LOSS AND
CONTRACTING PARTIES
§ 41.9 Contracting Parties: The Economic Loss
Rule Generally
Contract between the parties explicitly or implicitly excluding
tort liability. The core principle behind the economic loss rule
excludes tort liability for negligence and perhaps some other
torts114 when a contract between the parties expressly or impliedly
covers all their responsibilities attendant to performance of the
contract.115 In essence, application of the principle honors the
parties’ own allocations of risks and responsibilities by limiting the
plaintiff to whatever recovery may be permitted under the
contract, which may be no remedy at all where the contract
disclaims liability.116 There may be exceptions even to this core
version of the rule, as where an at-will employee is permitted to
sue in tort for wrongful discharge carried out in violation of public
policy.117
Where contract does not exclude tort liability. Conversely, under
this core view, when the contract does not address the conduct or
the risk that forms the tort claim and does not reflect an intent to
make the contractual remedy exclusive, the logic of the rule
permits the tort claim to proceed if it is otherwise viable.118 This
conception of the relevant economic loss rule also leaves room for
tort liability when the defendant is under a duty in tort wholly
independent of the contract and the contract has not released the
defendant from that duty.119
Expanded versions of the contractual economic loss rule. The
principle that respects the parties’ private ordering is to some
extent undermined when courts assume, without
1078
analyzing the contract, that the contract has allocated risks on

the matter in dispute.120 In addition, some courts have applied the
contract version of the economic loss rules much more broadly than
the core idea suggests. For example, courts may exclude the tort
claim because the contract imposes a duty that is the same as or
similar to the duty imposed by an independent tort rule.121 Courts
may also exclude the tort claim that arises from an independent
tort duty if the tort claim deals with the same “subject matter”
covered by the contract, or is “interwoven” with the contract,122 or
even when the tort claim merely arises from the same set of facts
as the contract claim.123 Professor Johnson has carefully criticized
these broad approximations.124 It is possible that fine-tuning
overbroad statements will come as case law develops with more
attention to effectuating the parties’ intent in contracting.125 In the
most extreme cases, though, courts have expressly departed from
any effort to honor the contract the parties made, holding that if
they could have bargained about a foreseeable issue but did not do
so, they may not pursue traditional tort claims.126
Applying the rules without the economic loss label. Like its
cousin, the stranger rule, the contracts version of the economic loss
rule is a no-duty rule, eliminating the tort duty to use care but
leaving the defendant subject to liability in contract if actionable
breach can be shown. Where it applies without expansion,127 the
rule gives primacy to the
1079
contract. The term “economic loss rule” or “economic loss

doctrine” came into use only after the decision in Seely v. White
Motor Co.128 in 1965, but courts used other language to obtain
similar results much earlier,129 seemingly with the same goals in
mind. Even today the rule or its principles may be applied without
referring to the economic loss rules by name,130 or even by
identifying some versions by other names entirely131 or by deciding
that the “gist” of the action is contract, not tort.132 And, as already
noted, the rules of particular economic torts are in accord in
requiring something more than negligence to establish the tort.133
The bases for believing that the contracting economic loss rules
have widespread application is thus found in many cases that do
not use the terminology. On the other hand, it must be noted that
when the arguments for this principle are not addressed, the
principle may be ignored and the tort action permitted.134
Examples of the contracting no-duty rule. For example, a
defendant who has contracted to provide the plaintiff with wheat
on October 1 may negligently fail to acquire the wheat, with the
result that he cannot supply it to the plaintiff as promised. The
plaintiff in such a case has a breach of contract claim, but not a
negligence claim.135 Negligent breach of contract is still breach of
contract and the contract controls. Another prominent application
of the rule occurs in defective product cases, where the defendant’s
product is reduced in economic value or causes economic harm
because of its defect, but where no physical harm is done to person
or to property other than the product. In such cases, the economic
loss rule bars tort claims against the manufacturer.136
1080
Multiple effects of the rule. In the contract setting, one effect of

the economic loss no-duty rule is that the plaintiff cannot recover
tort damages but is limited to damages available in contract
actions. That normally excludes punitive damages.137 And since
the only claim is on the contract, any valid limitations on liability
contained in the contract apply, as where a sales contract
effectively disclaims any warranty.138 The contract statute of
limitations may apply to bar the contract action.139 With tort
action barred by the economic loss no-duty rule and the contract
action barred by contract rules, the plaintiff in such cases is
without a common law remedy.
A separate rule: contract duties are enforced only in contract
claims. A rule related to the economic loss rules, but distinct from
them, is that if the defendant’s duty arises solely from a contract,
then by definition he has no duty in tort; his claim, if he has one,
must be brought as a contract claim with all the limitations that
implies.140 This rule is potentially broader than the economic loss
rules because it is not limited to pure economic loss; it might bar
tort claims for damage to tangible property where the only duty is
the contract duty. The rule is also narrower than the economic loss
rules, however, because in many cases tort duties can coexist with
contract duties. In fact, some tort duties arise out the contract
itself. For example, a client who has a contract with her attorney
for a representation nevertheless has a tort action against the
attorney for negligence or breach of fiduciary duty.141 The bailor of
tangible goods, though in a contractual relationship with the
bailee, traditionally has a choice of suing either in contract or tort
when the bailee negligently damages the goods.142 The separate
rule must be formulated accordingly, to recognize that the
existence of a contract duty does not preclude construction of a tort
duty where considerations of justice and policy warrant liability.
That is true even in pure economic loss cases, as the attorney
example shows.
§ 41.10 Contracting Parties: Rationales and
Policies for the Economic Loss Rule
Honoring the contract. Courts have stated several purported
rationales for the economic loss rule as illustrated above, although
commentators have sometimes criticized some or all of them.143
Perhaps the strongest is to honor the contract by enforcing its
express or implied allocations of responsibility. As courts have said,
the
1081
economic loss doctrine “protects the parties’ freedom to allocate

economic risk by contract,”144 a freedom that would be lost if tort
law were allowed to envelop the responsibilities allocated by
contract.145 Put more strongly, if the contract limits liability, the
rule eliminating tort claims prevents the plaintiff from
circumventing the contract’s allocation of loss.146
The distinction rationale. Courts have phrased this essential
point as a separate rationale by saying that the purpose of the
contractual economic loss rule is to preserve the distinction
between torts and contracts.147 That change in expression,
however, seems only to be a truncated statement of the perception
that, where the contract deals with the subject matter, its
allocations of risks and responsibilities should not be undermined
by a tort claim that ignores the contract limitations. That
observation in turn makes the “distinction” rationale largely the
equivalent to the rationale that seeks to honor the parties’
reasonable expectations under the contract.
Encouraging contract or insurance. Another rationale, the
encouragement rationale, is almost the opposite of the practice of
honoring the parties’ contract and some courts may reject it.148 The
encouragement rationale supports the economic loss rule as a rule
of imposed by law, not by the contract. It theorizes that courts
should impose this rule to force future plaintiffs either to provide
contractually for all contingencies or to buy insurance, or else
suffer the economic loss that results from the defendant’s
negligence.149 This theory has sometimes led courts to bar recovery
even when the plaintiff was in no contractual relationship with the
defendant at all—on the ground that the plaintiff could have tried
to contract with the defendant, and also where the plaintiff did in
fact bargain with some other person for a degree of protection.150
1082
The plaintiff is “best suited” to allocate risks. Where the contract

does not even impliedly allocate the risk of the defendant’s
negligence, some courts have said that the plaintiff ought still be
denied a claim for negligence on the ground that the plaintiff
knows better than the defendant what losses he might suffer and
consequently should either purchase insurance or contract with the
potential tortfeasor for protection. If the plaintiff does not
affirmatively protect himself by premium payments for insurance
or contractual arrangement with the defendant, this theory holds
that he must suffer the loss resulting from the defendant’s
negligence, or, sometimes, even from the defendant’s intentional
fraud.151
Is the plaintiff best suited to allocate risks? The assertion that
the purchaser or plaintiff is the party “best suited” to protect
himself seems to be an article of faith rather than a matter on
which evidence is required. While it may be more or less evidently
true in some cases,152 it is surely not so in all cases.153 The
architect or engineer who negligently tells the building contractor
to dig a tunnel 100 yards south of the correct location is very likely
to know far better than the contractor what risks he creates if his
instructions are negligent. He is also likely to be the only one in
position to avoid the waste that will be incurred if the contractor,
following plans, tunnels into a lake instead of the appropriate land.
At least some sellers of goods and services, perhaps all of them, can
also avoid injury at a cost less than the cost of harms inflicted.154 A
position more moderate than the encouragement rationale and the
claim that the plaintiff is best suited to protect himself has been
worked out by theorists and some Commonwealth
1083
courts. This position is similar in excluding recovery when the

plaintiff could have protected herself, but different in adding that
self-protection must be realistically possible, not merely a
theoretical ability to contract.155 Some American authority appears
to be in line with this notion as well.156
Rule of law, not analysis of parties’ contractual expectations.
The encouragement rationale, at least as baldly stated in the cases,
appears to be inconsistent with the rationale emphasizing freedom
of contract and the importance of honoring the contract; it does not
seek to enforce the expectations of the parties but instead penalizes
the plaintiff for failure to contractually allocate losses. Another
indicator that the parties’ expectations and the freedom of contract
premise are not fully followed lies in the way this form of an
economic loss rule is applied. For example, when the manufacturer
issues a limited warranty to the buyer, the existence of a warranty
may not necessarily mean that the parties meant to absolve the
manufacturer of all liability for negligence. Nevertheless, the rule
treats the existence of the contract as foreclosing tort liability,
without inquiry into the parties’ objectively expressed intent or
reasonable expectations.157
D. SCOPE AND EXCEPTIONS
§ 41.11 Scope of and Exceptions to the No-Duty
Economic Loss Rule
Scope: consumers, unsophisticated parties. A little authority has
flatly held that the contractual version of the economic loss rule
bars the tort claim for pure economic loss when the aggrieved
plaintiff is a business entity engaged in a “commercial” deal, but
not when the plaintiff is a “consumer.”158 Consumer protection
statutes may likewise provide relief for “consumers” that would be
barred under the no-duty economic loss rule for contracting
parties.159 Some courts, seemingly with a similar view, have
defined the economic loss rule as a bar to the tort action when “the
parties to a transaction are sophisticated business entities,”160
although such statements do not specifically address the position of
consumers. Some have similarly indicated that the plaintiff with
relative lack of bargaining power might not be limited to the
contract claim, if any, but could proceed on a negligence claim.161
Finally, a court may buttress its decision to bar the tort claim by
pointing out that the plaintiff in the case before the court was a
sophisticated
1084
party162 or suggest that the rule applies more broadly or with
exceptional rigor if the plaintiff is a sophisticated entrepreneur.163
Commercial versus consumer contracts. However, most courts
that have addressed or made assumptions about the issue appear
to apply the contracting parties’ economic loss rule across the
board, with no distinction between “commercial” and “consumer”
contracts or between sophisticated and unsophisticated buyers.164
The leading decisions adopting the contractual version of the
economic loss rule in the case of defective products that cause no
physical harm to persons or other property drew no distinction
between “commercial” and “consumer” contracts or between
sophisticated and unsophisticated buyers.165 Other courts have
specifically rejected the distinction, applying the rule to bar a tort
claim in both cases.166 Even so, some particular consumers may be
permitted to sue in tort on the basis of some other exception to the
economic loss rule.167
Independent duty in tort. The economic loss rule does not apply
to bar the tort claim for economic harms if the defendant breached
a duty of care that was independent of the contract.168 This may
occur because the duty did not arise out of the contract and is not
intertwined with the contract duty of performance.169 Phrased
differently, the tort duty, to be actionable, must not be
“interwoven” with the contract.170 Where a contract creates
1085
a special relationship between the parties, such as a status like

lawyer and client, the duties arising from the relationship may
often be enforced in tort, not merely in contract.171 However,
according to some authority, if the contract sets a duty relevant to
the claim, the contract will control even if there would also be a
tort duty independent of the claim.172
Tangible, “other property.” If the defendant manufactures a
product that is flawed and worthless but causes no physical harm
to persons or to other property, the purchaser suffers only pure
economic harm in the form of deficient economic value of the
product. Under the economic loss rule, the purchaser therefore has
no tort claim.173 Courts usually hold the same if the product flaw
results in physical harm only to the product itself.174 If the
defendant’s product causes physical harm to “other property,” not
associated with the contract, however, he is subject to liability as
with any other property damage. For example, if, because of a
manufacturing flaw, the product explodes and damages the
purchaser’s nearby home, the plaintiff has an ordinary property
damage claim for the physical harm to the home.175 Such a case is
not one of pure economic harm; instead, it is a case of economic
harm arising from physical harm to property. Some courts have
expanded the rule against liability for pure economic losses to
exclude liability in tort for physical destruction of entirely different
goods where the product was expected to interact with such goods,
with the result that the plaintiff’s tort claim is barred altogether
even though it is not one for pure economic harm but for property
damage.176
Sudden calamitous event or risks thereof and the other property
rule. Some older cases accepted the rule that physical harm to a
product from its own defect is still an economic loss governed by
contract, but if the self-damage occurred in a sudden and
dangerous event, the plaintiff could sue in tort.177 Later, however,
the Supreme Court of the United States, in an admiralty products
liability case, rejected the relevance of sudden and dangerous
events, holding that the product’s damage to itself was simply
economic loss—no different from the product’s failure to
function.178 Consequently, some
1086
courts that once permitted tort suits for calamitous self-

damaging product defects have receded from that position.179 The
Restatement of Products Liability ignores the sudden and
dangerous test entirely in its statement of the blackletter rule.180
In some states, however, the older rule that allows a tort action
when a product’s defect results in a sudden self-damaging event
such as an explosion that damages the product, but nothing else, is
still on the books.181 In some courts that recognize an exception for
sudden dangerous events, that exception may have been unmoored
from the “other property” issue, becoming a general “factor” courts
can use to discard the economic loss rule.182 In the most extreme
version, the court may treat a product’s mere risk of sudden
accidental physical harm as grounds for discarding the economic
loss rule, even though no physical harm has in fact occurred.183 At
the other end of the spectrum, loose statements may create doubts
about the role of sudden danger. Some judicial statements about
the effect of sudden and dangerous harm might be read too broadly
to imply that even if a defective product caused physical injury to a
person, the economic loss rule would bar the claim unless the
injury results from a sudden, dangerous event.184 If such a rule
were intended, it would clearly depart from the economic loss rule
and the policies behind it, and it seems unlikely that such a
statement would be applied literally.
Goods vs. services. Early and prominent cases stated the
economic loss rule in the context of products liability, holding that
a purchaser of a defective product that caused no physical harms
could not sue in tort but was forced to rely on the warranty or other
1087
contractual terms. Some authority has limited the economic loss

rule to such products cases, or has at least exempted services from
its reach.185 Since it would be as important to honor the provisions
of a service contract as well as a property contract,186 other courts
have applied the economic loss rule to bar claims against a
defendant who contracted to provide services187 or other value,188
as well as against product sellers.
Actions for certain negligent services permitted; attorneys and
“professionals.” Application of the economic loss rule to services
seems consistent with the policy behind the rule, but it opens up a
new problem. Courts continue to permit negligence actions by
clients against such service providers as attorneys, accountants,
insurance brokers, notaries and sometimes even title insurers who
perform a negligent title search.189 On the other hand, the
economic loss rule often protects other providers of services, such
as building contractors, against liability for their negligence.190
Some courts have sought to explain the uneven treatment of
service providers by saying that the economic loss rules does not
apply to bar negligence actions against defendants who are
professionals,191 or defendants who are in a special relationship
with the plaintiff,192 or those whose contract obligation does not
include production or delivery of a tangible object.193 It may be
that all of these efforts to describe the exception are heuristics—
pragmatic short-cuts that might usually but not always coincide
with a principled exception. Perhaps the overriding principle is
that defendants who, like attorneys, are in a special relationship
with the plaintiff, or who contract to foster the plaintiff’s interests
and who are not
1088
contracting as adversarial bargainers or competitors, should be

subject to the duties of care imposed by negligence law. That would
explain the cases and offer a realistic basis for judicial decision-
making.
Intentional torts. Both the stranger rule and the contract rule
originally only operated to forbid negligence and strict liability
actions for pure economic loss. The rule was soon adapted by some
courts to bar claims for certain intentional torts, particularly fraud
and deceit, between parties in a contractual or semi-contractual
relationship. Other courts, however, have followed the historical
rule that fraud inducing the plaintiff to enter into a contract is a
basis for the plaintiff’s action to rescind or to recover damages or
the defendant’s unjust enrichment. Courts that apply the economic
loss rule bar the claim for intentional fraud unless the fraud is
independent of or unrelated to the contract obligations.194 Such a
rule, applied literally, would obliterate most claims for intentional
deceit. However, this expansion of the economic loss rule is largely
congruent with the view taken by some courts that the deceitful
defendant may effectively disclaim liability for intentional fraud in
the contract itself.195
Other expansions. Although the economic loss rules by
definition cover only stand-alone economic loss, not property
damage, some courts have insisted that even when the defendant
damages the plaintiff’s tangible property, the plaintiff who has
some kind of contractual relationship with the defendant has no
negligence claim. This expansion has occurred when the defendant
has damaged or refused to return the plaintiff’s bailed property.196
In addition, one broad pronouncement states that the relevant
concern is not the type of harm—pure economic loss—but the
source of the duty in contract.197 It is certainly true that if the only
duty is one created by contract, the plaintiff has only a contract
action. However, the bare existence of a contract has not
traditionally negated all tort duties with respect to tangible
property.198 Indeed, it does not do so with respect to all economic
harm, as the case of attorney liability shows.199
________________________________
1 See Ellen M. Bublick, Economic Torts: Gain in Understanding
Losses, 48 Ariz. L. Rev. 693 (2006) (introducing and highlighting many
articles in Symposium, Economic Tort Law, 48 Ariz. L. Rev. 693–1127
(2006)); Vincent Johnson, The Boundary-Line Function of the Economic
Loss Rule, 66 Wash. & Lee L. Rev. 533 (2009).
2 Bruce Feldthusen, Economic Negligence—The Recovery of Pure
Economic Loss (5th ed. 2008) (discussing a wide variety of cases from
Canada, the United States, England and Australia); Helmut Koziol,
Recovery for Economic Loss in the European Union, 48 Ariz. L. Rev. 871
(2006) (working through important factors in liability); Jane Stapleton,
Comparative Economic Loss: Lessons from Case-Law-Focused “Middle
Theory,” 50 UCLA L. Rev. 531 (2002); Willem H. van Boom, Pure
Economic Loss—A Comparative Perspective, in Pure Economic Loss 1, 2
(Willem H. van Boom, Helmut Koziol & Christian A. Witting eds., 2004).
3 Restatement (Third) of Torts: Liability for Economic Harms § 2
(2012) (“For purposes of this Restatement., “economic loss” is pecuniary
damage not arising from injury to the plaintiff’s person or from physical
harm to the plaintiff’s property.”); Davencourt at Pilgrims Landing
Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 221 P.3d 234
(Utah 2009).
4 See Restatement (Third) of Torts: Liability for Economic Harms §
1 (2012).
5 See, e.g., Bayer CropScience LP v. Schafer, 385 S.W.3d 822 (Ark.
2011) (economic loss rule had no application where plaintiff rice farmers
showed that defendant caused physical harm to their lands, crops and
equipment).
6 Wrongful death actions, see Chapter 28, fit the formal paradigm
of economic torts because the surviving plaintiffs were not themselves
injured and they are seeking compensation for harm to another. Viewed in
that way, wrongful death actions are statutory exceptions to economic loss
rules that might otherwise exclude liability based on negligence or strict
liability.
7 Economic loss rules barring negligence claims would almost
always bar strict liability claims as well. These usually occur in product-
defect cases. In a few instances, intentional tort claims for pure economic
loss have been barred by the rules. See 3 Dobbs, Hayden & Bublick, The
8 See id. § 617 (discussing the overlap problem and giving other
examples).
9 Restatement (Third) of Torts: Liability for Economic Harms §§ 1,
4–6 (2012).
10 E.g., Aguilar v. RP MRP Washington Harbour, LLC, 98 A. 3d 979
(D.C. 2014) (negligence action seeking to recover lost wages caused by
flooding; claim barred by economic loss rule); LAN/STV v. Martin K. Eby
Constr. Co., 435 S.W.3d 234 (Tex. 2014) (economic loss rule precluded
general contractor from recovering damages in tort action from project
architect for delay in project).
11 See Vincent Johnson, The Boundary-Line Function of the
Economic Loss Rule, 66 Wash. & Lee L. Rev. 533 (2009); Robert L. Rabin,
Boundaries and the Economic Loss Rule in Tort, Respecting Boundaries
and the Economic Loss Rule in, 48 Ariz. L. Rev. 857 (2006) (distinguishing
cases of disappointed contractual expectation, economic harm to the
plaintiff resulting from physical harms to others, and negligent
performance of obligations to one person resulting in stand-alone economic
loss to the plaintiff); Jay M. Feinman, The Economic Loss Rule and
Private Ordering, 48 Ariz. L. Rev. 813 (2006) (noting the diversity of
economic loss cases and discussing the importance of context-sensitive
adjudication as distinct from abstract or formal rules); Helmut Koziol,
Recovery for Economic Loss in the European Union, 48 Ariz. L. Rev. 871
(2006) (balancing various factors to determine liability for economic loss in
particular cases, including indeterminate liabilities, and the nature and
value of the interests at stake); cf. Anita Bernstein, Keep It Simple: An
Explanation of the Rule of No Recovery for Pure Economic Loss, 48 Ariz.
L. Rev. 773 (2006) (proposing an overall rule for economic loss but
distinguishing many disparate situations such as product cases,
transferred loss cases, flawed services and other).
12 See Flagstaff Affordable Housing Ltd. P’ship v. Design Alliance,
Inc., 223 Ariz. 320, 223 P.3d 664 (2010).
13 E.g., Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Cos., Inc.,
110 So.3d 399 (Fla. 2013) (economic loss rule applies only in product
liability context in Florida).
(2012).
16 Sullivan v. Pulte Home Corp., 306 P.3d 1 (Ariz. 2013).
17 Thus Excavation Technologies, Inc. v. Columbia Gas Co. of Pa.,
985 A.2d 840 (Pa. 2009), defined economic loss rule to include non-
contracting parties by saying “no cause of action exists for negligence that
results solely in economic damages unaccompanied by physical injury or
property damage.” It also treated the leading non-contracting case, Robins
Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290
(1927), as representing the economic loss rule.
18 See Chapters 41–42.
19 E.g., Local Joint Exec. Bd. of Las Vegas, Culinary Workers Union,
Local No. 226 v. Stern, 98 Nev. 409, 651 P.2d 637 (1982).
(2012).
21 § 41.11.
22 See, e.g., Bayer CropScience LP v. Schafer, 385 S.W.3d 822 (Ark.
2011) (economic loss rule had no application where plaintiff rice farmers
showed that defendant caused physical harm to their lands, crops and
equipment; “the rule does not apply if the plaintiff’s economic harm results
from physical harm to the plaintiff’s person or other property”) (citing
Dobbs, Hayden & Bublick, The Law of Torts (2d ed. 2011).
23 Chapter 43.
24 See § 43.1. A defamation claim may be possible, but defamation is
a personal, not a purely economic tort.
25 See 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 650 (banks’
liability or not) & 712 (same in context of computer hacking) (2d ed. 2011
& Supp.). Both the card issuer and the identity thief, of course, are,
directly or indirectly, making representations to third persons about the
identity of the thief and about the plaintiff’s credit.
26 See Chapter 43.
2011 & Supp.).
28 Id. § 741.
29 Id. §§ 735–38.
30 §§ 44.1–44.3.
31 § 46.5.
32 § 46.6.
33 As to what counts as “other property,” see 2 Dobbs, Hayden &
34 E.g., East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S.
858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986); Moorman Mfg. Co. v. National
Tank Co., 91 Ill. 2d 69, 61 Ill. Dec. 746, 435 N.E.2d 443 (1982). Some
authority goes further, imposing only contract liability even when a
defective product causes harm to other property in some instances.
Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492 (Ind.
2001) (harm to product itself treated as stand-alone economic harm for
which recovery is denied, even if the plaintiff also suffers damages to
person or other property); Neibarger v. Universal Coops., Inc., 439 Mich.
512, 486 N.W.2d 612 (1992).
2011 & Supp.).
36 Blahd v. Richard B. Smith, Inc., 141 Idaho 296, 108 P.3d 996
(2005).
37 See Insurance Co. of N. Am. v. Cease Elec. Inc., 276 Wis.2d 361,
688 N.W.2d 462 (2004) (refused to apply the economic loss rule to
services).
(2012).
2011 & Supp.) (viewing such cases as claims for negligent interference
with contract).
40 Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134,
72 L.Ed. 290 (1927).
(2014) (unless recognized in a specific tort, there is no liability for
economic loss caused by unintentional injury to another person or property
in which the claimant has no proprietary interest).
42 See Fifield Manor v. Finston, 54 Cal.2d 632, 7 Cal.Rptr. 377, 354
P.2d 1073 (1960). The same result may be obtained, at least in some
claims, by saying that the plaintiff suffered only indirect harm and has no
standing to sue. See Ganim v. Smith & Wesson Corp., 258 Conn. 313, 780
A.2d 98 (2001) (city had no standing to sue for losses incurred, inter alia,
in public health and police costs caused by sale of certain handguns).
Likewise, statutes may impose duties to provide care for the plaintiff’s
personal well-being, but not for the plaintiff’s economic interests. See
Sabeta v. Baptist Hosp. of Miami, Inc., 410 F.Supp. 2d 1224 (S.D. Fla.
2005) (emergency medical care required by federal statute did not protect
against economic loss). On economic loss claims based on nuisance,
including gun-marketing cases, and the 2005 statute affecting the gun
cases, see 2 Dobbs, Hayden & Bublick, The Law of Torts § 403 (2d ed. 2011
& Supp.). See also id. § 452 (products liability analysis in the gun
marketing cases).
43 In Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 442 F.Supp.2d
206 (M.D. Pa. 2006), a merchant failed to properly secure customers’ credit
card data. Hackers used data to run up charges on credit cards. The
plaintiff, a bank that guaranteed customers against liability for fraudulent
use of their cards, had no negligence claim against merchant. Instead of
conceptualizing the case in terms of the stranger rule, the court crammed
it into the contract category, saying that although there was no contract
between the parties, the bank “could have” bargained with Visa for
protection and failed to do so.
44 § 42.11.
45 See Consolidated Aluminum Corp. v. C.F. Bean Corp., 772 F.2d
1217, 1222 (5th Cir. 1985) (the determinative issue is not “whether a
plaintiff’s harm is ‘foreseeable’ or ‘remote’ in a factual sense but instead on
‘the character of the interest harmed’ for which a plaintiff seeks relief”);
State of La. ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1023 (5th Cir.
1985) (rejecting foreseeability and remoteness tests in favor of a bright-
line no-duty rule). Sometimes, however, similar results in similar economic
harm cases are explained on the ground that the link between the
defendant’s fault and the economic damage suffered is too tenuous or
remote—the language of “legal” or proximate cause that antedated scope-
of-risk analysis. See Petitions of Kinsman Transit Co., 388 F.2d 821 (2d
Cir. 1968) (defendant’s damage to a draw-bridge temporarily prevented
shipping from proceeding to deliver goods up river, to the economic loss of
owners of undamaged goods down river that could not be delivered).
46 Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928)
(limiting liability to persons within the scope of foreseeable harm),
discussed in § 15.7. Dissenters from the Robins rule have suggested that
some kind of foreseeability or “proximate cause” rule could be used to
permit recover for some but not all economic loss. See Petitions of
Kinsman Transit Co., 388 F.2d 821 (2d Cir. 1968). This position has not
received general approbation.
47 Kaiser Aluminum & Chem. Corp. v. Marshland Dredging Co., 455
F.2d 957 (5th Cir. 1972); Byrd v. English, 117 Ga. 191, 43 S.E. 419 (1903).
Consolidated Aluminum Corp. v. C.F. Bean Corp., 772 F.2d 1217 (5th Cir.
1985); Newlin v. New England Tel. & Tel. Co., 316 Mass. 234, 54 N.E.2d
929 (1944). Distinguish interruptions caused by the supplier himself, who
is in privity with the plaintiff. See § 41.9. In that case the result may be
the same, but the rationales, scope and exceptions may differ. E.g.,
Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d
933 (Ind. Ct. App. 1996).
48 Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345
N.W.2d 124 (Iowa 1984).
49 Denial of access to property invades a property right, see
Restatement (Second) of Torts § 821C cmt. f (1979). Consequently liability
for denial of access to an abutting owner is appropriate. Stop & Shop Cos.,
Inc. v. Fisher, 387 Mass. 889, 444 N.E.2d 368 (1983).
50 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96
N.Y.2d 280, 750 N.E.2d 1097, 727 N.Y.S.2d 49 (2001). The court also
rejected the plaintiffs’ claim for public nuisance with private harm.
51 Garweth Corp. v. Boston Edison Co., 415 Mass. 303, 613 N.E.2d
92 (1993).
52 For example, an auditor’s breach of duty to use care in the audit of
a business may sometimes also be a breach of duty to lenders who rely on
the audit, provided the auditor has certain relationships with the lenders.
See 3 Dobbs, Hayden & Bublick, The Law of Torts § 681 (2d ed. 2011 &
Supp.).
53 E.g., Souci v. William C. Smith & Co., 763 A.2d 96 (D.C. 2000)
(tenant can recover against third person for negligent repairs contracted
for by landlord); McClosky v. Martin, 56 So.2d 916 (Fla. 1951) (tenant
could recover against “adjoining landowner” for nuisance that caused only
economic harm in reduced restaurant business); Nichols v. Mid-Continent
Pipe Line Co., 933 P.2d 272 (Okla. 1996) (tenant in possession could
recover against third person for physical harms resulting from nuisance,
even if lessor could have repudiated the tenancy).
54 Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir. 1974); Carson v.
Hercules Powder Co., 240 Ark. 887, 402 S.W.2d 640 (1966) (“public
nuisance” on a non-navigable stream or bayou, plaintiff had permission of
riparian owners to fish there and earned his living doing so; polluter was
subject to liability); Hampton v. North Carolina Pulp Co., 223 N.C. 535, 27
S.E.2d 538 (1943).
(2014).
56 Louisiana ex rel. v. Guste v. M/V Testbank, 752 F.2d 1019, 88
A.L.R.Fed. 239 (5th Cir. 1985).
57 Plourde Sand & Gravel v. JGI E., Inc., 154 N.H. 791, 917 A.2d
1250, 1254 (2007); Loosli v. City of Salem, 345 Or. 303, 194 P.3d 623
(2008) (city had no duty to use care in certifying that citizen’s proposed
business location was permissible under zoning law and was not liable for
cost of a move it later required); Excavation Techs., Inc. v. Columbia Gas
Co. of Pa., 985 A.2d 840 (Pa. 2009) (defendant was not liable for
negligently marking underground gas lines, resulting in economic loss to
the plaintiff excavator who struck the lines as a result of the markings);
Hamill v. Pawtucket Mut. Ins. Co., 179 Vt. 250, 892 A.2d 226 (2005). The
rule is broad enough to cover cases of contracting parties as well as
strangers and has been asserted in such contracting cases. E.g., Nelson v.
Anderson Lumber Co., 140 Idaho 702, 99 P.3d 1092 (Ct. App. 2004). The
Robins case, discussed in the preceding section, may be viewed as
supporting this general rule.
58 E.g., Western Mass. Blasting Corp. v. Metropolitan & Cas. Ins.
Co., 783 A.2d 398 (R.I. 2001) (plaintiff claimed that defendant’s negligent
investigation of damage to property of defendant’s insured led defendant
to assert a claim for damages, which, if paid, would damage the plaintiff’s
business reputation; held, negligence is insufficient basis for liability).
59 See Excavation Techs., Inc. v. Columbia Gas Co. of Pa., 985 A.2d
840 (Pa. 2009).
60 E.g., Flagstaff Affordable Housing Ltd. P’ship v. Design Alliance,
Inc., 223 Ariz. 320, 223 P.3d 664 (2010); Sullivan v. Pulte Home Corp., 306
P.3d 1 (Ariz. 2013); Sunridge Dev. Corp. v. RB&G Eng’g, Inc., 230 P.3d
1000 (Utah 2010); § 41.9 (the contracting version of the economic loss
rules).
(2012).
62 Id. § 1.
63 E.g., Franklin Grove Corp. v. Drexel, 936 A.2d 1272, 1275 (R.I.
2007) (a plaintiff is precluded from recovering purely economic losses in a
negligence cause of action, but later noting an exception for consumer-
plaintiffs).
64 E.g., In re Ill. Bell Switching Station Litig., 161 Ill.2d 233, 641
N.E.2d 440, 204 Ill.Dec. 216 (1994).
65 § 41.11.
66 § 43.5. Even liability for negligent misrepresentation can be seen
as less a special exception than a product of the rule that special
relationships create a duty of care, even in economic tort cases.
67 See, e.g., Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d
157, 168, 583 P.2d 721, 728, 148 Cal.Rptr. 867, 874 (1978); Alvord & Swift
v. Stewart M. Muller Constr. Co., Inc. 46 N.Y.2d 276, 281, 385 N.E.2d
1238, 1241–42, 413 N.Y.S.2d 309, 312 (1978). Examples include: (1)
interference with contract, (2) interference with economic expectancies, (3)
disparagement and injurious falsehood, (4) malicious prosecution, and,
usually, (5) conversion of intangibles and trade secret appropriation, and
(6) infringement of the right of publicity.
68 § 42.11.
69 See Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 229 P.3d
1008 (2010) (stating that courts generally recognize no duty to exercise
reasonable care for purely economic well-being and giving the rule against
negligence-based liability for interference with contract as one example).
70 Thus, the Arizona Court initially avoided deciding a claim on the
basis of the economic tort rule and instead favored focusing on the rules of
the particular tort applicable to the facts. Flagstaff Affordable Housing
Ltd. P’ship v. Design Alliance, Inc., 223 Ariz. 320, 223 P.3d 664 (2010). The
same court later acknowledged that “[c]ourts have not recognized a
general duty to exercise reasonable care for the purely economic well-being
of others,” and gave the rule against negligence-based liability for
interference with contract or prospects as an example. Lips v. Scottsdale
Healthcare Corp., 224 Ariz. 266, 229 P.3d 1008 (2010).
71 E.g., Reserve Mooring, Inc. v. American Commercial Barge Line,
LLC, 251 F.3d 1069 (5th Cir. 2001) (vessel sunk near the claimant’s
commercial mooring site, blocking customers; no liability for economic
harm without damage to the plaintiff’s property); Nelson v. Anderson
Lumber Co., 99 P.3d 1092 (Idaho Ct. App. 2004) (absent special
relationship, no tort duty to prevent economic losses to another); 532
Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280,
750 N.E.2d 1097, 727 N.Y.S.2d 49 (2001); Adams v. Copper Beach
Townhome Communities, L.P., 816 A.2d 301 (Pa. Super. Ct. 2003)
(employees thrown out of work by defendants’ negligent damage to factory
where they worked had no cause of action); Aikens v. Debow, 541 S.E.2d
576 (W.Va. 2000) (motel lost business when defendant negligently
damaged an access bridge; no duty absent contract or special relationship).
ed. 2011 & Supp.).
73 See § 41.2.
74 See Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 27 Cal.
Rptr. 697, 377 P.2d 897 (1963) (strict liability in products cases); Peters v.
Forster, 804 N.E.2d 736, 742 (Ind. 2004) (privity not required between
building contractor and one injured by his negligent work); MacPherson v.
Buick Motor Co., 217 N.Y. 382, 390, 111 N.E. 1050 (1916) (negligence in
products cases, foreseeability, not privity is the test).
75 See §§ 41.7 (rationales for the stranger rule) & 41.10 (rationales
for the contracting-party rules).
76 See Jim’s Excavating Serv., Inc. v. HKM Assocs., 265 Mont. 494,
502, 878 P.2d 248, 253 (1994); cf. Aikens v. DeBow, 208 W.Va. 486, 541
S.E.2d 576 (2000) (a special relationship is required to establish duty to
protect against stand-alone economic loss; privity or close relationship
might be one way of showing special relation).
77 See Rozny v. Marnul, 43 Ill.2d 54, 65, 250 N.E.2d 656, 662 (1969);
Klecan v. Countrywide Home Loans, Inc., 351 Ill. Dec. 548, 951 N.E.2d
1212 (App. Ct. 2011); Plourde Sand & Gravel v. JGI E., Inc., 154 N.H. 791,
917 A.2d 1250, 1254 (2007) (citing 4 Harper, James & Gray, The Law of
Torts § 25.18A (2d ed.1986)).
78 See Robert L. Rabin, Respecting Boundaries and the Economic
Loss Rule in Tort, 48 Ariz. L. Rev. 857 (2006).
79 The example is based on the facts in Excavation Technologies, Inc.
v. Columbia Gas Co. of Pennsylvania, 985 A.2d 840 (Pa. 2009), where the
court invoked the economic loss rule to protect the gas company from
liability. Neither of the points mentioned in the text was raised.
80 See Louisiana ex rel. Guste V. M/v Testbank, 752 F.2d 1019 (5th
Cir. 1985).
2011 & Supp.).
82 Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931)
(Cardozo, J., on negligent misrepresentation claims against an auditor).
83 Dan B. Dobbs, An Introduction to Non-Statutory Economic Loss
Claims, 48 Ariz. L. Rev. 713, 715 (2006).
2011 & Supp.).
85 Richard A. Posner, Common-Law Economic Torts: An Economic
and Legal Analysis, 48 Ariz. L. Rev. 735, 736–37 (2006).
86 See All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 865 (7th
Cir. 1999). It is possible to argue that there is no need to limit
compensation to cases where social loss has been inflicted and that in any
event at least some of the economic-loss cases entail social loss. See Anita
Bernstein, Keep It Simple: An Explanation of the Rule of No Recovery for
Pure Economic Loss, 48 Ariz. L. Rev. 773, 775, 781, 799–802 (2006).
87 For example, a defendant who undertakes to protect tangible
evidence needed by the plaintiff to pursue or defend a lawsuit may be
under a duty to exercise the care he undertook. The issue of spoliation of
evidence is complex, however. See §§ 44.4–44.7.
88 See 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc.,
96 N.Y.2d 280, 289, 750 N.E.2d 1097, 1101, 727 N.Y.S.2d 49, 51 (2001)
(recognizing that a duty may arise from a special relationship); Tommy L.
Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc., 320
S.C. 49, 463 S.E.2d 85 (1995); EBWS, LLC v. Britly Corp., 181 Vt. 513, 928
A.2d 497 (2007) (suggesting that recovery against professionals for
economic loss is an example of a special relationship duty); Eastern Steel
Constructors, Inc. v. City of Salem, 209 W.Va. 392, 549 S.E. 2d 266 (2001).
89 See Blahd v. Richard B. Smith, Inc., 141 Idaho 296, 301, 108 P.3d
996, 1001 (2005) (special relationship exists “where the relationship
between the parties is such that it would be equitable to impose such a
duty”); Bell v. Michigan Council 25 of Am. Fed’n of State, County, & Mun.
Employees, AFL-CIO, Local 1023, 2005 WL 356306 (Mich. Ct. App. 2005)
(considering numerous factors, including plaintiff’s entrustment of his
interests to the control by the defendant; “The scope and extent of the duty
to protect against third parties is essentially a question of public policy”).
90 Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8 (2d Cir.
2000); contra BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004).
91 § 43.10.
92 E.g., Collins v. Reynard, 154 Ill.2d 48, 607 N.E.2d 1185 (1992);
Clark v. Rowe, 428 Mass. 339, 701 N.E.2d 624 (1998); contra BRW, Inc. v.
Dufficy & Sons, Inc., 99 P.3d 66, 74 (Colo. 2004).
93 Congregation of the Passion, Holy Cross Province v. Touche Ross
& Co., 159 Ill.2d 137, 161, 636 N.E.2d 503, 514, 201 Ill.Dec. 71, 82 (1994).
94 Several cases have held that the absolute privilege of witnesses
does not protect the expert witness from suit by his client based on breach
of the standard of care. See Mattco Forge, Inc. v. Arthur Young & Co., 5
Cal.App.4th 392, 6 Cal. Rptr. 2d 781 (1992); Marrogi v. Howard, 805 So.2d
1118 (La. 2002); LLMD of Mich., Inc. v. Jackson-Cross Co., 559 Pa. 297,
740 A.2d 186 (1999).
95 See Filip v. Block, 879 N.E.2d 1076 (Ind. 2008) (recognizing a
general duty of care owed by agent to procure the insurance but not a duty
to advise of further insurance available); Graff v. Robert M. Swendra
Agency, Inc., 800 N.W.2d 112 (Minn. 2011) (affirming jury verdict for
insured against insurance agent who negligently failed to procure
additional underinsured motorist coverage in an umbrella policy); Broad
ex rel. Estate of Schekall v. Randy Bauer Ins. Agency, Inc., 275 Neb. 788,
749 N.W.2d 478 (2008) (distinguishing between agent of a disclosed
principal (the insurer) and broker who acts for the buyer as to the agent’s
individual liability in contract); American Bldg. Supply Corp. v. Petrocelli
Group, Inc., 19 N.Y.3d 730, 955 N.Y.S.2d 854, 979 N.E.2d 1181 (2012)
(reversing summary judgment for insurance broker on negligence and
breach of contract claims brought by insured; broker could have negligence
liability for failing to procure adequate general liability coverage after
insured had requested it, and insured’s failure to read the policy was not
an absolute bar to recovery on such facts); Eric Mills Holmes, Holmes’
Appleman on Insurance § 83.4 (2d. ed. & Supp.).
96 City Consumer Servs., Inc. v. Metcalf, 161 Ariz. 1, 775 P.2d 1065
(1989); Guaranty Residential Lending, Inc. v. International Mortgage Ctr.,
Inc., 305 F.Supp.2d 846 (N.D. Ill. 2004).
97 See Cottonwood Enters. v. McAlpin, 111 N.M. 793, 810 P.2d 812
(1991) (relying on statutory duty of insurer to search title). Other courts
hold that the title insurer only agrees to insure, not to search, and thus is
not liable in tort for a negligent search. First Midwest Bank v. Stewart
Title Guaranty Co., 218 Ill. 2d 326, 300 Ill. Dec. 69 (2006) (invoking the
economic loss rule and holding that the plaintiff could not proceed on a
theory of negligent misrepresentation because title insurers are not in the
business of supplying information); Walker Rogge, Inc. v. Chelsea Title &
Guaranty Co., 116 N.J. 517, 562 A.2d 208 (1989) (excellent summary of
case law); Hulse v. First Am. Title Co. of Crook County, 33 P.3d 122 (Wyo.
2001). Some cases imposing liability involve, not a negligent title search,
but an affirmative misrepresentation about some other matter, as in Bank
of Cal., N.A. v. First Am. Title Ins. Co., 826 P.2d 1126 (Alaska 1992), or
alternatively, an undertaking to do a title search and a negligent report,
Heyd v. Chicago Title Ins. Co., 218 Neb. 296, 354 N.W.2d 154 (1984). Such
cases of course do not speak against the rule of non-liability where the
insurer does not undertake to make a search and where he misrepresents
nothing. On the whole topic, see Jay M. Zitter, Annotation, Title Insurer’s
Negligent Failure to Discover and Disclose Defect as Basis for Liability in
Tort, 19 A.L.R.5th 786 (1993).
98 See § 41.7.
99 The term transferred loss is a term also used in tax law. The term
“single loss” may be more useful as covering both transferred loss and
other determinate liability cases and as avoiding use of a technical tax
term.
100 Bruce Feldthusen, Economic Negligence—The Recovery of Pure
Economic Loss 257–64 (5th ed. 2008); Willem H. van Boom, Pure Economic
Loss—A Comparative Perspective, in Pure Economic Loss 1, 38–40
(Willem H. van Boom, Helmut Koziol & Christian A. Witting eds., 2004).
101 Harris v. Suniga, 344 Or. 301, 180 P.3d 12 (2008) (builder who
sold defective structure to A, who sold it to the plaintiff, is subject to
liability for negligent construction which led to leaks in the building; there
is no risk of indeterminate liability because “[o]nce a party has paid
damages related to the physical injury to property caused by its
negligence, its liability is at an end”).
102 If A discovers the loss before selling, reveals it to B and in
consequence must concede a reduction in purchase price, A can use the
documents of sale to protect his right to sue the negligent surveyor.
103 Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969) (using a
negligent misrepresentation theory); Hanneman v. Downer, 110 Nev. 167,
871 P.2d 279 (1994) (using an ordinary negligence theory).
104 Guaranty Residential Lending, Inc. v. International Mortgage
Ctr., Inc., 305 F.Supp.2d 846 (N.D. Ill. 2004); see Restatement (Second) of
Torts § 552 illus. 16 (1977). Distinguish the claim against a notary who
fails to verify the identity of the person subscribing to a deed. If the
signature was not genuine, any claim the person whose signature was
forged has against the notary cannot be for misrepresentation, since a non-
party could not have relied. See City Consumer Servs., Inc. v. Metcalf, 161
Ariz. 1, 775 P.2d 1065 (1989) (permitting recovery for “negligence” without
reference to misrepresentation rules or to the possibility of recovery on an
injurious falsehood theory).
105 Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La. 1993) (long
opinion struggling with negligent misrepresentation theory, consistent
with the single liability point but not discussing it).
106 See § 43.8.
107 33 U.S.C.A. § 2702(b)(2)(E). See South Port Marine, LLC v. Gulf
Oil Ltd. P’ship, 234 F.3d 58 (1st Cir. 2000) (approving a recovery of a
marina’s lost future profits where a gasoline spill not only damaged the
marina’s property but also required the marina to reallocate capital and
staff work, resulting in delay of planned expansion; also approving jury
trial). The statute also imposes liability limitations. State statutes may
impose similar liabilities for stand-alone economic harm. See Ballard
Shipping Co. v. Beach Shellfish, 32 F.2d 623 (1st Cir. 1994); Kodiak Island
Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).
108 42 U.S.C.A. § 2651.
109 People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J.
246, 495 A.2d 107 (1985).
110 The court only referred to the nuisance cases to advance its idea
that some kind of foreseeability would be sufficient basis for liability.
111 743 P.2d 356 (Alaska 1987) (confusingly holding that the plaintiff
employer cannot recover for negligent injury to the employee that causes
loss of services or loss of profits but that he can recover for negligently
caused economic loss, which is evidenced by the same injury to the same
employee).
112 J’Aire Corp v. Gregory, 24 Cal.3d 799, 598 P.2d 60, 157 Cal.Rptr.
407 (1979).
113 In California, the odd opinion in J’Aire, id., may have resulted in a
rule that permits negligence-based recovery for interference with non-
contractual economic prospects but that insists that intent is required
before liability can be imposed for interference with an actual contract. See
Davis v. Nadrich, 174 Cal.App.4th 1, 94 Cal.Rptr.3d 414 (2009). This
result is out of line with the settled principle that greater protection, not
lesser, is to be afforded to contracts than to uncontracted-for opportunities.
114 Even some intentional torts may be protected by the economic loss
rule in some instances. See 3 Dobbs, Hayden & Bublick, The Law of Torts
§ 615 (the paragraph Intentional torts) (2d ed. 2011 & Supp.).
115 See, e.g., Sunridge Dev. Corp. v. RB&G Eng’g, Inc., 230 P.3d 1000
(Utah. 2010) (“the economic loss rule prevents parties who have contracted
with each other from recovering beyond the bargained-for risks”). But
some courts treat the mere existence of a contract as sufficient to exclude
tort liability, regardless whether the contract itself implied such a
purpose. See the paragraph, Expanded versions of the contractual
economic loss rule, below.
116 See Seely v. White Motor Co., 63 Cal.2d 9, 403 P.2d 145, 45
Cal.Rptr. 17 (1965).
117 § 43.10. On the other hand, when no public policy supports the at-
will employee, the rule rejects a tort action and to that extent can be
viewed as a collateral support for the contractual economic loss rule.
118 In re Gosnell Dev. Corp. of Ariz., 331 Fed.Appx. 440 (9th Cir.
2009) (reversing district court’s elimination of fiduciary duty where
contract duties arose from same facts; the economic loss rule applies only
where “an underlying contract shows the parties already bargained for
and allocated their risk of loss”). But some established views of contract
interpretation may treat the contract’s silence on a topic as negating any
rights on that subject. Thus contracts for employment are presumptively
at-will unless the contract states or implies otherwise. § 43.10.
119 See Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.4th 979,
102 P.3d 268, 22 Cal.Rptr. 3d 352 (2004); Indemnity Ins. Co. of N. Am. v.
American Aviation, Inc., 891 So.2d 532 (Fla. 2004). Phrased differently,
the tort duty, to be actionable, must not be interwoven with the contract.
Huron Tool & Eng’g Co. v. Precision Consulting Servs., Inc., 209 Mich.
App. 365, 532 N.W.2d 541 (1995).
120 This assumption is played out in many cases where the terms of
the contract are not considered and in cases that make existence of the
contract, not its content, the determinative condition. E.g., Jorgensen v.
Colorado Rural Props., LLC, 226 P.3d 1255 (Colo. Ct. App. 2010) (“a party
suffering only economic loss from the breach of an express or implied
contractual duty may not assert a tort claim for such breach absent an
independent duty of care”). See Jay M. Feinman, The Economic Loss Rule
and Private Ordering, 48 Ariz. L. Rev. 814 (2006) (noting that courts have
become more formal and less attentive to context, and that they have
applied the economic loss rule to bar tort claims even when the contract
has not in fact allocated the risks bearing on the negligence claim). In
addition, some courts may simply believe that the actual contract terms
are irrelevant because they believe it is enough that the parties could have
contracted to deal with the tort issue, even if they did not in fact attempt
to exclude tort liability. See § 41.10.
121 Dubinsky v. Meermart, 595 F.3d 812 (8th Cir. 2010) (“The
economic loss doctrine bars ‘recovery of purely pecuniary losses in tort
where the injury results from a breach of a contractual duty’ ”);
Gulfstream Aerospace Servs. Corp. v. United States Aviation
Underwriters, Inc., 280 Ga.App. 747, 635 S.E.2d 38 (2006) (if the contract
sets a duty relevant to the claim, the contract will control even if there
would also be a tort duty independent of the claim; reviewing Utah and
Colorado cases); Plourde Sand & Gravel v. JGI E., Inc., 154 N.H. 791, 917
A.2d 1250 (2007) (quoting a broad statement that the economic loss rule
precludes “contracting parties from pursuing tort recovery for purely
economic or commercial losses associated with the contract relationship”
(emphasis added)); cf. Grynberg v. Questar Pipeline Co., 70 P.3d 1, 43
(Utah 2003) (if duty arises from contract, not tort action, even for physical
harm). The unavoidable implications of these statements in excluding
liability for established tort duties may be broader than the courts had in
mind.
122 E.g., Rubesa v. Bull Run Jumpers, LLC, 2010 WL 376320 (S.D.
Fla. 2010); Huron Tool & Eng’g Co. v. Precision Consulting Servs., Inc.,
209 Mich.App. 365, 532 N.W.2d 541 (1995).
123 See General Motors Corp. v. Alumi-Bunk, Inc., 482 Mich. 1080,
757 N.W.2d 859 (2008) (a single “promise” made in negotiations was the
sole basis for breach of contract and tort claim, therefore tort claim was
properly dismissed to prevent contract from drowning in a sea of tort)
(Young, J., concurring); cf. Grynberg v. Questar Pipeline Co., 70 P.3d 1, 14
(Utah 2003) (interpreting Wyoming law, once the contract prescribes
duties identical to tort duties, the tort duty is wiped out, at least where
same conduct is described in both tort and contract claims).
124 Vincent Johnson, The Boundary-Line Function of the Economic
Loss Rule, 66 Wash. & Lee L. Rev. 533, 575–81 (2009).
125 The point is to honor the contract, or as Professor Johnson says, to
“ensure that the adjudication of tort remedies defers to private ordering.”
Id. at 580.
126 See § 41.10.
127 On exceptions, see § 41.11. See also Jane Stapleton, Comparative
Economic Loss: Lessons from Case-Law-Focused “Middle Theory,” 50
UCLA L. Rev. 531, 551–54, 561–63 (2002) (arguing for limitations on the
rule, especially that it should not apply unless the plaintiff has realistic
opportunities to bargain for protection from the defendant’s conduct).
128 63 Cal.2d 9, 403 P.2d 145, 45 Cal. Rptr. 17 (1965) (stating one
phase of the doctrine). The full terms, “economic loss rule” or “economic
loss doctrine” to refer to the underlying ideas, came into common use in
the courts only in the late 1980s, after which time the rule was more
frequently presented to courts in arguments and became better
understood. As a result, earlier cases may not control contemporary
decisions. See Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1,
124 Wash.2d 816, 824, 881 P.2d 986, 991 (1994).
129 E.g., Russell v. Western Union Tel. Co., 19 N.W. 408 (Dakota Terr.
1884) (gist of action for defendant’s negligent failure to transmit telegram
was contract, not tort).
130 E.g., Robin Bay Assocs., LLC v. Merrill Lynch & Co., 2008 WL
2275902 (S.D.N.Y. 2008) (under New York law, a claim for breach of
fiduciary duty that duplicates a breach of contract claim cannot stand);
Carvel Corp. v. Noonan, 3 N.Y.3d 182, 818 N.E.2d 1100, 785 N.Y.S.2d 359
(2004) (rejecting claim that defendant franchisor had interfered with
plaintiff-franchisee’s business relations with its customers on the ground
that the franchise contract governed, not tort); Gus’ Catering, Inc. v.
Menusoft Sys., 171 Vt. 556, 762 A.2d 804 (2000). The rule that a
contracting party cannot be liable for tortiously interfering with his own
contract, is still another reflection of the economic loss rule or the principle
behind it. See 3 Dobbs, Hayden & Bublick, The Law of Torts § 635 (2d ed.
2011 & Supp.).
131 See Russo v. NCS Pearson, Inc., 462 F.Supp.2d 981 (D. Minn.
2006) (identifying one version of the rule as “the independent duty rule”).
132 As applied in economic loss cases, the court’s declaration that the
“gist” of the action is contract operates like the no-duty or economic loss
rule, excluding the tort claim and sometimes for the same basic reasons.
See eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10 (Pa. Super. Ct.
2002). Similarly, the same policies are reached in some cases that simply
say the action “sounds in” contract. See Heath v. Palmer, 181 Vt. 545, 915
A.2d 1290 (2006).
133 §§ 41.2 & 41.7 (pointing out respectively that the rules of specific
economic torts requiring intent, not merely negligence, would be subverted
if the plaintiff could ignore the tort designed to deal with the particular
facts and simply claim “negligence” and that the economic loss rule serves
as a traffic cop function, directing analysis to the appropriate specific
torts).
134 E.g., Hawaii Med. Ass’n v. Hawaii Med. Serv. Ass’n, Inc., 113
Haw. 77, 116, 148 P.3d 1179, 1218 (2006) (health insurer, a contracting
party, by non-payment or slow payment to physicians, allegedly tortiously
interfered with plaintiffs’ prospective economic relations with patients; the
claim survived a motion to dismiss).
135 See Springfield Hydroelectric Co. v. Copp, 779 A.2d 67 (Vt. 2001);
Cf. Smith Mar., Inc. v. L/B Kaitlyn Eymard, 710 F.3d 560 (5th Cir. 2013)
(plaintiff ship buyer culd not sue in tort; limited to contract remedies).
136 § 33.3.
137 See Richard Swaebe, Inc. v. Sears World Trade, Inc., 639 So. 2d
1120 (Fla. Dist. Ct. App. 1994) (barring punitive damages under the
economic loss rule); Tietsworth v. Harley-Davidson, Inc., 677 N.W.2d 233
(Wis. 2004) (recognizing that punitive damages unrecoverable where
economic loss rule eliminated the tort claim).
138 E.g., N.Y. State Elec. & Gas Corp. v. Westinghouse Elec. Corp.,
564 A.2d 919 (Pa. Super. 1989); see the leading early discussion in Seely v.
White Motor Co., 63 Cal. 2d 9, 403 P.2d 145, 45 Cal. Rptr. 17 (1965) (“Had
defendant not warranted the truck, but sold it ‘as is,’ it should not be liable
for the failure of the truck to serve plaintiff’s business needs”).
139 See Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 223 F.3d 873
(8th Cir. 2000); Grynberg v. Questar Pipeline Co., 70 P.3d 1 (Utah 2003).
140 See, e.g., Southwestern Bell Tel. Co. v. Delanney, 809 S.W.2d 493
(Tex. 1991).
141 Chapter 45.
142 § 6.11.
143 See Jay M. Feinman, The Economic Loss Rule and Private
Ordering, 48 Ariz. L. Rev. 814 (2006) (arguing that the rationales giving
primacy to contractual or private ordering solutions are inadequate
because parties do not in fact specify performance terms and allocate risks
during the contracting process and noting that contract rules and
interpretation have become more abstract and formal and less context
oriented); Anita Bernstein, Keep It Simple: An Explanation of the Rule of
No Recovery for Pure Economic Loss, 48 Ariz. L. Rev. 773 (2006)
(criticizing all rationales, suggesting they are fatuous).
144 Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 593
N.W.2d 445 (1999).
145 Fireman’s Fund Ins. Co. v. SEC Donohue, Inc., 176 Ill.2d 160, 164,
679 N.E.2d 1197, 1199, 223 Ill.Dec. 424, 426 (1997) (quoting, “tort law
would, if allowed to develop unchecked, eventually envelop contract law”).
146 Indemnity Ins. Co. of N. Am. v. American Aviation, Inc., 891 So.2d
532 (Fla. 2004) (“The prohibition against tort actions to recover solely
economic damages for those in contractual privity is designed to prevent
parties to a contract from circumventing the allocation of losses set forth
in the contract by bringing an action for economic loss in tort”); Carvel
Corp. v. Noonan, 3 N.Y.3d 182, 818 N.E.2d 1100, 785 N.Y.S.2d 359 (2004)
(emphasizing that contractual allocation of losses between the parties
should control).
147 E.g., Wausau Tile, Inc. v. County Concrete Corp., 226 Wis.2d 235,
593 N.W.2d 445 (1999).
148 Presumably courts would not accept an encouragement rationale if
they require a contract or privity between the parties as a condition of
imposing the “contract” type of economic loss rule. So requiring, see,
Indemnity Ins. Co. of N. Am. v. American Aviation, Inc., 891 So.2d 532,
534, 542 (Fla. 2004) (“We conclude that the ‘economic loss doctrine’ or
‘economic loss rule’ bars a negligence action to recover solely economic
damages only in circumstances where the parties are either in contractual
privity or the defendant is a manufacturer or distributor of a product, and
no established exception to the application of the rule applies;” and the
rule applies only “when the parties have negotiated remedies for
nonperformance pursuant to a contract,” in which case, “one party may not
seek to obtain a better bargain than it made by turning a breach of
contract into a tort for economic loss”); Camp St. Mary’s Ass’n of the W.
Ohio Conference of United Methodist Church, Inc. v. Otterbein Homes,
176 Ohio App.3d 54, 889 N.E.2d 1066 (2008).
149 Palmetto Linen Serv., Inc. v. U.N.X., Inc., 205 F.3d 126 (4th Cir.
2000); BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004) (by
forbidding tort damages, the rule encourages the plaintiff “to build the cost
considerations into the contract because they will not be able to recover
economic damages in tort”).
150 E.g., Rissler & McMurry Co. v. Sheridan Area Water Supply Joint
Powers Bd., 929 P.2d 1228 (Wyo. 1996) (construction contractor had
contract only with the public entity initiating construction, but this
contract barred his recovery against negligent architect, even though he
could not recover under the contract with the public entity). Similarly,
when the parties are in a contractual relationship but the defendant
negligently harms property that was not part of the transaction, it has
been held that the economic loss rule barred recovery for negligence on the
ground that harm to other property could have been provided for in the
contract. Palmetto Linen Serv., Inc. v. U.N.X., Inc., 205 F.3d 126 (4th Cir.
2000). In Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 442 F.Supp.2d 206
(M.D. Pa. 2006), the court held that a bank that had guaranteed its
customers would not be held liable for fraudulent charges on VISA credit
cards it issued could not recover from a merchant for losses it sustained
when the merchant failed to properly guard customer’s credit card
information and hackers fraudulently ran up charges against the cards,
ultimately paid by the bank. The court reasoned that the bank should not
recover for the merchant’s negligence because, although the bank had no
contractual relationship with the merchant, it “could have” bargained with
VISA for protection. This reasoning is criticized in Vincent Johnson, The
Boundary-Line Function of the Economic Loss Rule, 66 Wash. & Lee L.
Rev. 533, 562–64 (2009). The encouragement rationale may at times be
superfluous, under the oft-applied rule for strangers that negligence is
insufficient in any event. However, in the architect-engineer-landowner-
contractor setting, the relationships of the parties may be a “special
relationship” that would displace the stranger rule and permit recovery.
See, permitting the tort recovery, Eastern Steel Constructors, Inc. v. City
of Salem, 209 W.Va. 392, 549 S.E.2d 266 (2001).
151 Below v. Norton, 751 N.W.2d 351 (Wis. 2008) (the economic loss
doctrine is “meant to encourage the purchaser, who is the party best
situated to assess the risk of his or her economic loss, to assume, allocate,
or insure against that risk”). A Wisconsin statute subsequently allowed
some but not all purchasers of real estate to recover in for intentional
fraud by the seller. Wis. Stat. Ann. § 895.10.
152 Cf. State of La. ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1029
(5th Cir. 1985) (businesses suffered losses when defendant negligently
spilled chemicals, causing the river to be closed for cleanup; “[F]irst party
insurance is feasible for many of the economic losses claimed here. Each
businessman who might be affected by a disruption of river traffic or by a
halt in fishing activities can protect against that eventuality at a relatively
low cost since his own potential losses are finite and readily discernible.”).
153 A number of decisions have now supported use of a no-duty
economic loss rule to protect a fraudulent defendant who induces a
contract by intentional misrepresentation, see Below v. Norton, 751
N.W.2d 351 (Wis. 2008). However, these do not seem supportable on the
ground that the deceived buyer is in better position to protect himself than
is the lying seller. “When a seller is lying about the subject matter of the
contract, the party best situated to assess and allocate the risk of economic
loss is the seller, not the buyer … a party to a contract cannot rationally
calculate the possibility that the other party will deliberately lie…. When
a seller is lying about the subject matter of a contract, the party best
suited to assess the risk of economic loss switches from being the
purchaser, who cannot possibly know which of several statements may be
a lie, to the seller, who clearly knows.” Budgetel Inns, Inc. v. Micros Sys.,
Inc., 34 F.Supp. 2d 720, 723, 725 (E.D. Wis. 1999). Some cases have
expressly rejected the relevance of realistic ability to bargain for self-
protection. See Foremost Farms USA Co-op. v. Performance Process, Inc.,
297 Wis.2d 724, 742, 726 N.W.2d 289, 297 (Ct. App. 2006).
154 This is so because the defendant is not negligent and not liable at
all unless the cost of avoiding harm is less than the cost of injury with
probability factored in. See §§ 12.3–12.4.
155 See Jane Stapleton, Comparative Economic Loss: Lessons from
Case-Law-Focused “Middle Theory,” 50 UCLA L. Rev. 531, 551–54, 561–63
(2002).
156 See Apollo Group, Inc. v. Avnet, Inc., 58 F.3d 477 (9th Cir. 1995)
(explaining that recovery was properly allowed in certain cases where the
parties were not in privity, which “limited the contractual remedies
available to plaintiffs, rendering commercial law an inadequate framework
in which to resolve plaintiffs’ claims” in those cases); Sports Imaging of
Ariz., LLC v. 1993 CKC Trust, 2008 WL 4448063 (Ariz. Ct. App. 2008)
(unreported, available on Westlaw) (defendant’s contract with the plaintiff
“was limited to that of a passive member-investor” so that the parties
“were never in a position to negotiate the economic risks themselves;”
economic loss rule was no bar).
157 Seely v. White Motor Co., 63 Cal.2d 9, 403 P.2d 145, 45 Cal.Rptr.
17 (1965), is the leading case.
158 Franklin Grove Corp. v. Drexel, 936 A.2d 1272 (R.I. 2007);
Rousseau v. K.N. Constr., Inc., 727 A.2d 190, 193 (R.I. 1999).
159 E.g., Washington State Physicians Ins. Exch. & Ass’n v. Fisons
Corp., 122 Wash.2d 299, 858 P.2d 1054 (1993).
160 PTI Assocs., LLC v. Carolina Int’l Sales Co., Inc., 2010 WL 363330
(D. Conn. 2010); 425 Beecher, LLC v. Unizan Bank, Nat’l Ass’n, 186 Ohio
App.3d 214, 927 N.E.2d 46 (2010).
161 Alloway v. General Marine Indus., L.P., 149 N.J. 620, 628, 695
A.2d 264, 268 (1997).
162 Desert Healthcare Dist. v. PacifiCare FHP, Inc., 94 Cal.App. 4th
781, 793, 114 Cal.Rptr. 2d 623, 632 (2001) (noting that plaintiff “is a large
corporate entity well versed in the intricacies of the health care financing
system,” and “more than capable of protecting itself through diligence and
prudence, and by exercising its own considerable contracting power,” but
possibly limiting the rule to such cases); Rissler & McMurry Co. v.
Sheridan Area Water Supply Joint Powers Bd., 929 P.2d 1228, 1235 (Wyo.
1996) (agreeing with other authority that, given “the abilities of
sophisticated businessmen to provide contractual remedies in their
business dealings … the contractor’s claims against the architect must fail
under the economic loss doctrine”).
163 Palmetto Linen Servs., Inc. v. U.N.X., Inc., 205 F.3d 126, 129–30
(4th Cir. 2000); Grynberg v. Questar Pipeline Co., 70 P.3d 1 (Utah 2003).
164 E.g., Alejandre v. Bull, 159 Wash.2d 674, 684–85, 153 P.3d 864,
869 (2007) (“the economic loss rule applies to tort claims brought by home
buyers”).
165 East River S.S. Corp. v. Transamerica Delaval, Inc. 476 U.S. 858,
106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (ship’s engines); Seely v. White
Motor Co., 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P.2d 145 (1965). Commercial
and consumer are unfortunately ambiguous terms. All sales transactions
are in a sense commercial and all buyers who use the product instead of
reselling are in a sense consumers.
166 E.g., Federal Ins. Co. v. Lazzara Yachts of N. Am., Inc., 2010 WL
1223126 (M.D. Fla. 2010) (weight of authority holds the economic loss rule
as applied in defective product cases “applies in the consumer context”);
Ace Am. Ins. Co. v. Grand Banks Yachts, Ltd., 587 F.Supp.2d 697 (D. Md.
2008).
167 See Sapp v. Ford Motor Co., 386 S.C. 143, 687 S.E.2d 47 (2009)
(recognizing a special exception that would permit home buyers to sue for
negligence, but refusing to extend that exception to the plaintiffs who
seemed to be ordinary consumers who had purchased defective
automobiles causing only pure economic loss).
168 This “independent duty rule” appears to be gaining some
momentum. See, e.g., David v. Hett, 293 Kan. 679, 270 P.3d 1102 (2011)
(remanding for a determination of whether the plaintiffs could assert an
independent tort duty, but holding that the economic loss doctrine does not
bar claims by homeowners seeking to recover economic damages resulting
from negligently performed residential construction services, reviewing
the history of and policies behind the economic loss rules); see also Town of
Alma v. Azco Constr., Inc., 10 P.3d 1256 (Colo. 2000) (saying that a “more
accurate designation of what is commonly termed ‘the economic loss rule’
would be an ‘independent duty rule,’ ” holding that “a party suffering only
economic loss from the breach of an express or implied contractual duty
may not assert a tort claim for such breach absent an independent duty of
care under tort law”); Eastwood v. Horse Harbor Found., Inc., 170 Wash.
2d 380, 241 P.3d 1256 (2010) (a plaintiff’s injury is remediable in tort
where the injury can be traced back to a tort duty arising independently
from the contract); Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc.,
170 Wash.2d 442, 243 P.3d 521 (2010) (same).
169 See Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.4th 979,
102 P.3d 268, 22 Cal.Rptr. 3d 352 (2004); Indemnity Ins. Co. of N. Am. v.
American Aviation, Inc., 891 So.2d 532 (Fla. 2004).
170 Huron Tool & Eng’g Co. v. Precision Consulting Servs., Inc., 209
Mich.App. 365, 532 N.W.2d 541 (1995).
171 See the paragraph Actions for certain negligent services permitted;
attorneys and others, below, this section. For analysis of the duties owed by
lawyer to clients, see Chapter 45.
172 See Gulfstream Aerospace Servs. Corp. v. United States Aviation
Underwriters, Inc., 280 Ga. App. 747, 635 S.E.2d 38 (2006) (reviewing
Utah and Colorado cases); Robin Bay Assocs., LLC v. Merrill Lynch & Co.,
2008 WL 2275902 (S.D.N.Y. 2008) (under New York law, a claim for
breach of fiduciary duty that duplicates a breach of contract claim cannot
stand).
173 See § 33.3.
174 East River S.S. Corp. v. Transamerica Delaval, Inc. 476 U.S. 858,
106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (ship’s engines); Seely v. White
Motor Co., 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P.2d 145 (1965); contra, as to
real property, Harris v. Suniga, 344 Or. 301, 180 P.3d 12 (2008).
175 E.g., Sarasota Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875,
117 S.Ct. 1783, 138 L.Ed.2d 76 (1997) (equipment added to vessel after
manufacturer sold it is other property); A.J. Decoster Co. v. Westinghouse
Elec. Corp., 333 Md. 245, 634 A.2d 1330 (1994) (backup power system
manufactured by defendant allegedly did not work, resulting in loss of
140,000 chickens in a power failure; upon proof, the plaintiff can recover
its losses). What counts as other property and what does not may be
surprising.
176 See Palmetto Linen Serv., Inc. v. U.N.X., Inc., 205 F.3d 126 (4th
Cir. 2000).
177 Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652
F.2d 1165, 1174–75 (3d Cir. 1981) (“Here, the damage to the front-end
loader was the result of a fire a sudden and highly dangerous
occurrence…. Thus, the complaint brought by PGS appears to fall within
the policy of tort law that the manufacturer should bear the risk of
hazardous products.”), receded from by Aloe Coal Co. v. Clark Equip. Co.,
816 F.2d 110 (3d Cir. 1987).
178 East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,
106 S.Ct. 2295, 90 L.Ed.2d 865 (1986).
179 Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110 (3d Cir. 1987).
180 Restatement (Third) of Torts: Products Liability § 21 (1998)
(“harm to persons or property includes economic loss if caused by harm to:
(a) the plaintiff’s person; or (b) the person of another when harm to the
other interferes with an interest of the plaintiff protected by tort law; or (c)
the plaintiff’s property other than the defective product itself”).
181 Salt River Project Agric. Improvement & Power Dist. v.
Westinghouse Elec. Corp., 143 Ariz. 368, 379, 694 P.2d 198, 209 (1984),
overruled as to construction contracts, Flagstaff Affordable Housing Ltd.
P’ship v. Design Alliance, Inc., 223 Ariz. 320, 223 P.3d 664 (2010) (under a
test that weighs several factors, “It is in the realm of this direct property
damage that we believe the unreasonably dangerous nature of the product
defect and the occurrence of the loss in a sudden, accidental manner would
tip the balance in favor of strict tort liability even though the damage
fortuitously was confined to the product itself.”).
182 Thus a court may simply declare generally that the plaintiff can
recover in tort if a sudden and dangerous event causes damage, without
connecting this rule to the problem of suing for damage to the product
itself. See Nobl Park, LLC of Vancouver v. Shell Oil Co., 122 Wash.App.
838, 848, 95 P.3d 1265, 1721 (2004). Although mainly emphasizing sudden
events as significant in cases where a product damages itself, not other
property, the court in Salt River Project Agric. Improvement & Power Dist.
v. Westinghouse Elec. Corp., 143 Ariz. 368, 379, 380, 694 P.2d 198, 209,
210 (1984), a products liability case, also appeared to say that harm by
way of a sudden event was a factor that could be considered in any kind of
case: “Each case must be examined to determine whether the facts
preponderate in favor of the application of tort law or commercial law
exclusively or a combination of the two. In weighing the evidence to make
this determination, the trial court should examine the three factors—1)
the nature of the product defect, 2) the manner in which the loss occurred,
and 3) the type(s) of loss or damage that resulted.” Without overruling Salt
River in the products liability context, the Arizona Supreme Court has
now held that the economic loss rule applies to bar tort claims in the
context of construction contracts. Flagstaff Affordable Housing Ltd. P’ship
v. Design Alliance, Inc., 223 Ariz. 320, 223 P.3d 664 (2010).
183 E.g., Lloyd v. General Motors Corp., 397 Md. 108, 916 A.2d 257
(2007).
184 See First Midwest Bank, N.A. v. Stewart Title Guar. Co., 218
Ill.2d 326, 843 N.E.2d 327, 300 Ill.Dec. 69 (2006) (“We recognized three
exceptions to [the economic loss rule]: (1) where the plaintiff sustained
damage, i.e., personal injury or property damage, resulting from a sudden
or dangerous occurrence”). The quoted language suggests that a
manufacturer of a product that is defective because it emits unsafe levels
of radiation causing cancer over a period of time would be immune from
liability because there was no sudden and dangerous event. That would
not only be out of line with products liability law generally but would be
out of line with any conceivable policy behind the economic loss rule.
Presumably the quoted language should be regarded as an incomplete
statement that states a sufficient but not necessary basis for physical
harm recovery based on negligence or strict liability. On the rule in
products cases generally, see § 33.3.
185 Cargill, Inc. v. Boag Cold Storage Warehouse, Inc., 71 F.3d 545
(6th Cir. 1995); Insurance Co. of N. Am. v. Cease Elec. Inc., 276 Wis.2d
361, 688 N.W.2d 462 (2004).
186 See Congregation of the Passion, Holy Cross Province v. Touche
Ross & Co., 159 Ill.2d 137, 161, 636 N.E.2d 503, 514, 201 Ill.Dec. 71, 82
(1994) (“A provider of services and his client have an important interest in
being able to establish the terms of their relationship prior to entering into
a final agreement. The policy interest … parallels the policy interest [in
the case of] the sale of goods.”).
187 BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004); Blahd v.
Richard B. Smith, Inc., 141 Idaho 296, 108 P.3d 996 (2005); Corporex Dev.
& Constr. Mgmt., Inc. v. Shook, Inc., 106 Ohio St.3d 412, 835 N.E.2d 701
(2005) (under the economic loss rule, landowner could not recover against
subcontractor for defective performance); Trans-Gulf Corp. v. Performance
Aircraft Servs, Inc., 82 S.W.3d 691 (Tex. App. 2002). Some cases so stating,
however, may be applying the stranger rather than the contractual version
of the rule. Heath v. Palmer, 181 Vt. 545, 915 A.2d 1290 (2006)
(contractor’s negligence resulted in home of inadequate value, contract
claim only).
188 Hamill v. Pawtucket Mut. Ins. Co., 179 Vt. 250, 892 A.2d 226
(2005) (insurance; negligent investigation by adjuster caused economic loss
related to the plaintiff expectations of insurance coverage, contract action
only).
189 For all these, see 3 Dobbs, Hayden & Bublick, The Law of Torts §
653 (2d ed. 2011 & Supp.).
190 See id.
(2012) (“professionals” are subject to liability for economic loss caused by
negligent performance of an undertaking to serve a client). SMI Owen
Steel Co., Inc. v. Marsh USA, Inc., 520 F.3d 432 (5th Cir. 2008) (negligence
action would lie against insurance broker for negligent failure to procure
insurance as contracted; duties of professionals are prescribed by law and
hence are independent of the contract; predicting Nevada law); Plourde
Sand & Gravel v. JGI E., Inc., 154 N.H. 791, 917 A.2d 1250 (2007)
(economic loss rule does not bar claim against design professional, but
ordinary construction contractors and others rendering service in that
connection are barred by the rule); see Blahd v. Richard B. Smith, Inc.,
141 Idaho 296, 301,108 P.3d 996, 1001 (2005).
192 Duffin v. Idaho Crop Improvement Ass’n, 126 Idaho 1002, 895
P.2d 1195 (1995) (noting that this formulation is not equivalent to an
exception based on professional status); EBWS, LLC v. Britly Corp., 181
Vt. 513, 928 A.2d 497, 507–08 (2007) (“Purely economic losses may be
recoverable in professional services cases because the parties have a
special relationship, which creates a duty of care independent of contract
obligations…. [T]the determining factor is the type of relationship created
between the parties…. Although a license may be indicative of this
relationship, it is not determinative;” but holding that a contractor was not
a professional).
193 Congregation of the Passion, Holy Cross Province v. Touche Ross
& Co., 159 Ill.2d 137, 161, 636 N.E.2d 503, 514, 201 Ill.Dec. 71, 82 (1994).
2011 & Supp.).
195 Id. § 684.
196 See § 6.11.
197 See Grynberg v. Questar Pipeline Co., 70 P.3d 1, 43 (Utah 2003)
(“the modern focus is not on the harm that occurs but instead is on the
source of the duty that was breached…. All contract duties, and all
breaches of those duties—no matter how intentional—must be enforced
pursuant to contract law”).
198 See, e.g., Abraham v. T. Henry Constr., Inc., 350 Or. 29, 249 P.3d
534 (2011) (homeowners allowed to sue contractor in tort despite the
existence of contract between them where contract did not create or define
any duty that the contractors did not already have; the negligence claim
that the plaintiff would have in the absence of a contract was not limited
or defined in any way in the contract).
199 See the paragraph, Actions for certain negligent services permitted;
attorneys and others, supra, this section. For analysis of attorneys’ liability
to clients generally, see Chapter 45.
1089
Chapter 42
INTERFERENCE WITH CONTRACT AND

ECONOMIC INTERESTS
Analysis
A. THE CORE RULES OF INTENTIONAL INTERFERENCE WITH
CONTRACT
§ 42.2 Interference with Economic Relations by Committing Other
Torts
§ 42.3 General Rules of Intentional Interference Claims
B. IMPROPER INTERFERENCE
§ 42.6 Improper Motive or Purpose as a Basis for Liability
§ 42.7 Improper Means or Effects—Independently Tortious Acts,
Crimes or Violation of Statutes
§ 42.8 Specific Rules or Principles Protecting Interference, Including
Right of Competition, Advice, and Truth
C. INTENTIONAL INTERFERENCE WITH ECONOMIC
OPPORTUNITY
§ 42.9 Intentional Interference with Economic Opportunity: General
Rules
D. THE PRIMA FACIE TORT
E. NEGLIGENT INTERFERENCE WITH CONTRACT AND
OPPORTUNITY
§ 42.11 General Rule Inhibition Against Recovery for Negligently Caused
Economic Harm
__________
A. THE CORE RULES OF INTENTIONAL
INTERFERENCE WITH CONTRACT
Harms covered. This section considers torts that redress stand-
alone economic harm1 resulting from the defendant’s intentional
disruption of the plaintiff’s contracts with other persons or
disruption of the plaintiff’s economic opportunities that are not
represented by actual contracts. In interference with contract
cases, the defendant’s interference commonly causes a third person
to breach his contract with the plaintiff, but breach is not
necessarily required to establish harm from the interference. In the
case of intentional interference with economic opportunities that
are not represented by
1090
contract, the harm is the plaintiff’s lost prospect of a reasonably

likely profit or benefit, usually from an established and gainful
business relationship.
Means of interference. The disruption of the plaintiff’s contracts
with others or of the plaintiff’s economic opportunities elsewhere
does not result from physical harms to the plaintiff, so torts like
trespass or battery are not available to the plaintiff to redress the
claimed grievance. When the defendant interferes with an actual
contract between the plaintiff and a third person, he often does so
by simple persuasion—offering more money for the performance
that is due to the plaintiff under the contract. The defendant can
interfere in many ways, but most interference falls into one of four
categories: (1) persuasion (in the case of interference with existing
contracts), (2) economic or other coercion of pressure, (3)
misappropriation of commercial values, or (4) falsehoods.
The torts. The main torts invoked to deal with these situations,
sometimes traveling under slightly different names, are:
(1) Interference with contract;
(2) Interference with economic opportunities, business
relationships, prospects, prospective advantage, or
prospective contractual relations, none of which are
represented by an enforceable contract; all these names refer
to essentially the same tort;2 and
(3) The “prima facie tort.”3
These three torts are similar in that they all involve interference
with economic expectancies, and some courts use a single general
rule to cover both the interference with contract and the
interference with economic prospects claim,4 although in practice
courts recognize critical differences between the two torts.5 Courts
give the broadest protection to the plaintiff’s interest in an existing
contract, providing much less protection to mere business
relationships or prospects. Accordingly, the rules for interference
with opportunities of this kind are usually more stringent.6 The
prima facie tort is frankly reserved for cases that are perceived as
falling outside the purview of any other tort and yet deserving
redress.
Peculiarities of the torts. The three torts are peculiar to the
point of being unique. They have developed without elements that
describe the wrongful conduct required to impose liability.7
Instead, the names of the interference torts describe the type of
harm inflicted—interference with contract or other economic
opportunity. Intended interference with contracts or business
relations describes a wide range of conduct that is entirely
legitimate, for example, competition for business or opposition to
discrimination. By omitting to prescribe elements of the
interference claims, the original rules turned perfectly legitimate
and even desirable conduct into a tort. In the more
1091
contemporary versions of the torts, some impropriety is

required, but the rules still do not define the specific elements
required.
§ 42.2 Interference with Economic Relations by
Committing Other Torts
Overlapping or duplicative torts. Sometimes the claimed
interference with contract is really nothing more than a breach of
contract claim.8 Beyond that, claims for interference overlap
considerably with many named or nominate torts which are
defined by their specific elements. For example, the defendant
might interfere with the plaintiff’s contracts with others by
defaming the plaintiff or by publishing injurious falsehoods about
the plaintiff’s product. In a large percentage of cases, plaintiffs
plead specific torts in addition to their claims for interference with
contract or prospects. These specific torts may be based on the
same core facts involved in the interference claim. A representative
but not an exhaustive list includes abuse of process,9 antitrust
violations and common law restraint of trade,10 bribery,11
conversion,12 copyright infringement,13 defamation,14
disparagement or slander of title,15 breach of fiduciary duty,16
injurious falsehood, intentional infliction of emotional distress,17
malicious prosecution,18 misrepresentation,19 prima facie tort,20
and trade secret misappropriation and unfair competition.21 Just
as a plaintiff might claim interference to avoid limitations imposed
by the most appropriate specific tort, the plaintiff may claim
interference to avoid pursuing a will contest in a probate court.22
In some instances, the specific torts sued upon do not fully overlap
because they are based on conduct and harms somewhat distinct
from the interference. When the overlap exists, several questions
arise.
Claims normally governed by a more specific tort. Perhaps the
most significant practical issue arises when the claim is one
normally governed by rules of a specific tort. For example, if the
defendant communicates negative information about the plaintiff
to the plaintiff’s promisor, the promisor may breach his contract
with the plaintiff. Such a case looks like one for defamation or
disparagement because it is based on an arguably
1092
defamatory communication; but it also looks like an

interference with contract case because interference is the harm
that resulted.
Specific tort foreclosing recovery. Suppose that defamation law
requires evidence that the plaintiff is unable to produce, say,
evidence of knowing or reckless falsehood.23 Should the plaintiff be
permitted to claim interference with contract where such a claim
would subvert the defamation rules that are intended to protect
the defendant’s speech? The principle seems to be that if the
defendant’s conduct is within the general realm governed by a
specific tort, the plaintiff cannot subvert the rules of that realm by
claiming interference with contract or prospects. Put differently,
the fact of interference with contract is best understood as
representing an element of damages for the specific or named tort,
not as a separate cause of action for interference.24 In the example
given, the rules that foreclosed the defamation claim would also
foreclose the interference claim.25 Similarly, if the interference
occurs because the defendant filed a lawsuit against the plaintiff,
the restrictive rules of malicious prosecution should control.26
Possibly constitutional rights to petition government would also
preclude liability for interference.27
Duplication of damages. In the reverse situation, the plaintiff is
not barred by rules of a specific tort, but instead can prove her case
under the substantive rules of some specific tort and also under the
rules for interference with contract or prospects. There is no
prohibition against suing on both theories or indeed on recovering
on both theories. However, doing so adds work for all the lawyers
involved and for the courts. The implication is not that lawyers
should drop potentially valid claims, but that it would be desirable
to streamline the economic torts to avoid overlaps. Multiple claims
raise a second point. The compensation principle of damages law
forbids duplicated recoveries.28 If the harm claimed results from
interference with contract, the plaintiff should not
1093
recover for that once under the defamation count and then
again under the interference with contract count.29 The point
seems obvious, but it is sometimes overlooked.
Suing for interference only. When the plaintiff has a potentially
good claim for a specific tort but asserts only the claim for
interference with contract, the case can become more complex than
need be. That is because, with limited exceptions,30 specific torts
can provide specific rules and guidance for analysis that is largely
missing in the interference torts. If the plaintiff loses contract
benefits because the defendant battered her, the court can simply
apply the battery rules and permit or deny recovery as they
dictate. Foreseeable damages from the battery, including those
resulting from an intended interference, would easily be
recoverable. If the defendant interferes with a contract by bringing
a lawsuit, the rules of wrongful litigation offer the historical
guidance needed to preserve access to courts. Even if the plaintiff
has not sued on the specific tort, courts can consider the rules of
the specific tort in determining whether the interference is
improper, or indeed, whether the rules of the specific tort trump
the interference claim.
Implications? Critics have suggested that at least in large part
the interference torts should be abolished in favor of torts like
fraud, defamation, or restraint of trade that focus on identifiable
wrongful acts,31 or that the torts should at least be limited so as
not to interfere with appropriate competition.32 Others critics,
however, have offered a degree of support for the interference
torts.33
§ 42.3 General Rules of Intentional Interference
Claims
Historical prima facie liability. Courts originally treated a
defendant’s intended interference with contract as prima facie
tortious if it induced breach and caused harm to the plaintiff as a
contracting party, his assignee, or to third party beneficiaries.34
This
1094
meant that the mere fact of intended interference was enough

to make out a prima facie case for the plaintiff.35 Motives were
deemed to be malicious if the interference was intended; that was
enough, prima facie, for liability.36 In effect, the contract between
A and B was treated as a property right good against interference
by third persons. The same idea was carried over and applied to
the case of intentional interference with non-contractual
opportunities.37
Privilege or justification. Under this early regime, the defendant
might be able to avoid liability, but only if he shouldered the
burden of proof by affirmatively establishing a justification or a
privilege. However, no rule defined the privileges available; judges
would decide that by applying “good sense.”38 If good sense did not
tell the judges that the defendant was privileged, the defendant
would automatically be liable. In general, however, the judges’
“good sense” permitted a wider range of interference with mere
business opportunities than with actual contracts.39
Requiring improper means or motive. Some contemporary courts
have said, in line with the older rule describe above, that
intentional interference with contract is by itself a wrong,40 but
most courts today require more—something wrongful beyond the
act of interference itself.41 They hold that the defendant who acts
with an acceptable motive and by proper means is not liable for
interference with contract and even more clearly not liable for
interference with non-contractual economic relations.42 In some
instances, courts have gone on to hold that malice or improper
motive is not enough because improper means must be proved.43
Because of these and other shifts in the rules and
1095
attitudes, more recent decisions that involve no independent
basis for tort liability, such as defamation, have often tended to
conclude that the facts did not support the interference claim.44 In
courts that accept conclusory allegations of improper interference,
though, the plaintiff may get past motions to dismiss or for
summary judgment.45 Likewise, courts that do not require that the
interference be wrongful may readily find for the plaintiff.46
Privilege and burden of proof. The burden of proof, under the
older rule, clearly fell upon the defendant to justify an interference.
Most courts now appear to put the burden on the plaintiff to show
improper purpose or improper means of interference in order to
establish a prima facie case. Some, however, may adhere to the
older prima facie rule that required the defendant to prove his
innocence before any bad purpose or means was ever
demonstrated.47 Some courts appear to put the burden on the
plaintiff when the claim is only for interference with economic
relations, but on the defendant when the claim is for interference
with an actual existing contract.48
Defining improper means or purpose. Most courts still decide
what is an improper means or improper purpose in the way
English courts did in the 19th century—by simply applying what
the judge thinks is “good sense.”49 Courts usually apply this “good
sense” rule by adverting to a number of abstract “factors.”50 The
absence of any firm concept of the tortious misconduct required
continues to plague these decisions. Courts take similar
approaches in cases of interference with business relations, but
liability is more restricted in such cases, and they must be
discussed separately on this point.51
Elements of the interference claims generally. As already pointed
out, the traditional view held that intentional interference with an
existing and enforceable contract was itself a wrong if damages
flowed from that interference. The plaintiff was not required
1096
to prove improper means or even improper purpose or ill-will.52

Today, courts more commonly require the plaintiff to prove
something showing the interference with contract or economic
opportunity was carried out by improper means or with improper
motive or both.53 Perhaps because of this shift, courts now often
list elements of the interference with contract claim. In various
expressions most courts say in essence that the plaintiff must
prove:
(1) the existence of an enforceable contract between the
plaintiff and another,
(2) the defendant’s knowledge of the contract’s
existence,54
(3) the defendant’s intentional interference with the

contract of specific persons56
55
(4) with improper motive or by improper means,57

(5) which causes breach of the contract58 and
(6) resulting damage to the plaintiff,59 unjust
enrichment to the defendant,60 the prospect of injury that
warrants an injunction against interference, or, possibly, the
threat of public harm because the interference is anti-
competitive or in restraint of trade.
Some courts, seemingly following the older practice, omit the
fourth element, thus ostensibly permitting recovery without
requiring evidence that the interference was
1097
improper.61 However, omission of the “improper” requirement

sometimes appears to result from oversight or error,62 so it is
sometimes difficult to pinpoint a state’s interference rules without
comprehensive review of its cases.
Elements—unitary or separate formula for prospects claims.
Some courts write a separate set of elements of the interference
with economic prospects claim,63 while others attempt to write a
unitary formula covering both claims.64 In either case, the
interference with business opportunity case today generally
requires the elements listed above, verbally adapted to reflect the
business opportunity in issue.
Elements without identified misconduct conduct. However
stated, the elements listed fail to describe specific wrongful conduct
that makes interference “improper”; they may function as general
guidelines for analysis, but not as actual rules of conduct or
decision.
Traditional burden of proof. Courts traditionally held that proof
of intentional interference was by itself prima facie proof of the
tort. In effect, they presumed that the defendant had acted with
wrongful motive or improper purpose when he intentionally
interfered with the plaintiff’s contract or economic opportunity.
Under that rule, the defendant could escape liability only by
showing a privilege and shouldering the burden of justifying the
interference.65 Even if the defendant showed a privilege, the
privilege could be defeated if the plaintiff proved that the
defendant’s conduct was unjustified.66
Placing the burden on the plaintiff to prove wrongfulness. Most
contemporary cases put the burden of proof where it normally is—
on the plaintiff. This burden of proving some species of fault has
been adopted both in cases of interference with an existing
contract67 and in cases of interference with economic opportunities
or business
1098
relationships.68 The effect is that issues previously tried as

questions of justification or privilege will now ordinarily go to the
question of improper interference with the burden on the plaintiff.
Thus, the affirmative defense of privilege or justification becomes
relevant, if ever, only after the plaintiff first proves wrongful
interference.69
B. IMPROPER INTERFERENCE
Improper motive or means approached through the
Restatement’s factors. Interference that is improper and therefore
potentially actionable falls into two broad categories. First, the
defendant may interfere with a bad purpose or motive or with ill
will toward the plaintiff. Second, the defendant may interfere by
improper means. To determine what is improper motive or means,
the Restatement Second’s main approach is to keep analysis as
vague as possible by stating abstract factors, ostensibly to guide
analysis.
The Restatement factors and others. According to the
Restatement Second,70 judges are to consider no less than seven
non-exclusive factors in determining the whether the defendant’s
conduct was improper or wrongful:
1099
(1) “the nature of the defendant’s conduct;”

(2) his motive;
(3) the plaintiff’s interests;
(4) the interests the defendant seeks to protect;
(5) a weighing of the defendant’s freedom of action
compared to the plaintiff’s interests in his contracts with
others;
(6) the “proximity or remoteness” of the defendant’s
conduct; and
(7) the relationship between the plaintiff and defendant.
Other considerations may include relevant business ethics and
customs, or rules of a business or trade association that are
binding on the parties.71
Courts’ acceptance of the factors and criticism. Courts
undoubtedly find the Restatement factors useful in structuring
discussion, and many of them have used the factors to determine
whether the defendant’s interference was sufficiently culpable to
warrant liability.72 However, different judges can emphasize
different factors or weigh them differently. They can also
characterize the facts to fit the factors or fall outside them. The
factors are almost always capable of leading courts where their
predisposition takes them. The problem with such factors is not
merely that they fail to guide those engaged in economic activity.
The problem is that a process of decision-making that cannot
describe the wrongful acts it condemns runs the risk of being
neither judicial nor fair.73
§ 42.6 Improper Motive or Purpose as a Basis for
Liability
If the defendant uses no improper means, is his “malice” or
improper motive by itself a sufficient basis for liability for
interference with contract or economic opportunities?
The first stage. Decisions have gone through several more or
less distinct stages. Earlier cases treated the defendant’s bare
intent to interfere with the plaintiff’s contracts as “malicious” in
itself.74 Under this older approach, the defendant was, prima facie,
liable even though he had no improper purpose and had used no
improper means. In some interference with contract cases, some
authority still appears to follow this older approach.75
1100
The second stage. As the law developed, however, courts

realized that not all intended interference was culpable; some was
entirely justified. The Restatement and most courts came to
require some kind of improper interference—improper either
because the defendant had an improper purpose or motive for
interfering, or because he used tortious or improper means to
interfere.76 The defendant’s supposed motive or purpose can thus
become central to the interference claim.
Forming a third stage. A third stage may be forming. Courts
and critics have increasingly thought that liability for interference
should not be based upon the defendant’s supposed bad motive or
purpose but only upon his use of tortious or otherwise improper
means of interference, especially where the defendant has
legitimate interests of his own to protect77 and where the
defendant interferes only with economic prospects, not with valid
existing contracts.78 Some authority goes further, requiring
improper means not only to establish interference with economic
prospects but also to establish an interference with contract
claim.79
Malice or the like sufficient to show improper motive. Where
improper purpose remains a ground for liability, the defendant’s
spite, a desire to do harm for harm’s sake, or malice can be
sufficient to show such a purpose, even when no improper means
are used.80 However, proof of such malice is not necessary to a
finding of improper motive.81
Bases for judging improper motive. Courts have been cautious
or even obscure about what would count as an improper motive
other than personal ill-will or the like. They may insist that motive
be judged case-by-case by the judge’s “good sense” rather than by
1101
any rules than can be identified,82 and may invoke the

Restatement’s numerous abstract factors83 to judge motive,
although motive itself is one of those factors.84 Some cases do not
make it clear what conduct or purpose was improper or why.
Sole and mixed motives. When courts focus on improper motive
in claims for interference with economic prospects, they sometimes
insist that the improper motive must be the sole motive.85 The sole
motive rule may also be invoked when the court finds other special
reason to protect the defendant.86 Pragmatically, the rule serves to
filter out many undesirable claims. For this reason, it may be a
step toward eventually discarding motive as a basis for liability in
these cases. In many cases it is difficult to fairly assign motives at
all and even more difficult to determine whether a motive is the
sole one, if indeed it is even possible to have a single motive.87 In
mixed motive cases, to count against the defendant in the
interference claim, some say the improper motive must be the
predominant or primary one.88
Alternative approaches. Given the difficulty of knowing motives
and the much greater difficulty of weighing motives against each
other, the kind of approach taken by the Supreme Court with
analogous motive issues seems better.89 This approach would ask
whether the interference would have taken place even without the
bad motive; that is, whether the acceptable motive would have
produced the same interference. If so, the bad motives are to be
ignored because they were not but-for causes of the interference.
Criticism of motive-based liability. In the interference, motive is
irrelevant to the policy objectives—the desirability of the
defendant’s interference seldom correlates with the defendant’s
motives. Instead, the social concern is with his conduct and its
effects.90 And since motive is seldom an observable fact but must
be inferred, to make motive a key issue is to invite decision-makers
to exercise their biases, conscious or unconscious.91 When courts
decide not only the existence of motive but also its weight and
quality, as
1102
where liability turns on the defendant’s predominant motive,

we invest both judicial and private resources in litigating an issue
that seldom matters and cannot be accurately determined in any
event. If these criticisms are accurate, if the defendant interferes
by competition, competition should not be stifled because the
defendant has bad thoughts. Instead, courts could concentrate on
whether the defendant’s acts were in fact anticompetitive or
otherwise wrongful by some independent standard.
§ 42.7 Improper Means or Effects—Independently
Tortious Acts, Crimes or Violation of Statutes
Improper means in the scheme of liability. Even where it is
possible to recover for intentional interference with contract on the
basis of improper motive, proof of improper means presents a
stronger case.92 Plaintiffs often assert that the defendant
interfered with a contract or business relationship by committing
some specific tort.93 Interference by committing a crime is also
easily improper and facially actionable as an interference with
contract or prospects, as are some violations of statute or
regulation, although not every violation of statute conclusively
shows improper means.94 Some authority holds that violation of
established standards or ethical rules of a trade or profession can
count as improper so as to permit the interference action,95 at least
if the violation subjects the defendant to liability or some kind of
sanction.96 However, this idea has been criticized.97
Scope and examples. Examples of specific torts that can
improperly interfere with a contract or business relationship
include the case of defamation that induces the promisor to breach
his contract with the plaintiff98 and a physical tort such battery,
trespass or nuisance that blocks performance of a contract.99 In
more general terms, it
1103
has been said that “violence, threats or intimidation, bribery,

unfounded litigation, fraud, misrepresentation or deceit,
defamation, duress, undue influence, misuse of insider or
confidential information, or breach of a fiduciary relationship”
count as improper acts causing interference.100 Restraint of trade
is in the same category,101 as are other torts such as injurious
falsehood.
Tortious conduct that is not actionable under the rules of a
specific tort. Some courts have held that the tortious conduct
counts as interference with contract by improper means, even if
that conduct is not actionable by the plaintiff on the particular
facts. For example, if the statute of limitations has run on the
specific tort but not on the interference claim, improper means can
be shown by showing the specific tort.102
Non-tortious conduct not subject to legal sanction. Conceivably,
even conduct that is not subject to legal sanction may count as
improper in the context of interference with contract or prospects
claims. Intentionally false statements of fact might be considered
improper even if those statements do not amount to a tort.103
Interference with prospects resulting from a public official’s
discriminatory administration of the law might well be deemed to
show wrongful conduct as well as wrongful motive.104 Such
examples suggest that near-torts might qualify.
§ 42.8 Specific Rules or Principles Protecting
Interference, Including Right of Competition,
Advice, and Truth
The Restatement, with a basis in the cases, offers several
specific rules and principles that protect the defendant from
liability for interference.
Marriage contracts. Most clearly and most narrowly, in the
absence of a specific tort, it is not wrongful to induce another to
breach a marriage contract (or to interfere with prospects of
marriage).105 And of course it is not actionable to interfere with a
putative contract that is illegal.106
Competition. Economic competition does not justify improper
interference with a valid existing contract.107 At the same time, it
is privileged, or not improper, to compete
1104
by lawful means for economic prospects not represented by such

a contract, for example, to compete for customers who are not
bound to the plaintiff by contract.108 The defendant can properly
induce the plaintiff’s non-contracting customers to buy from the
defendant instead, but can also interfere in other ways as well,109
say, by bringing or threatening a bona fide suit to protect his own
interests,110 at least in the absence of other factors that warrant
liability.111 A more or less separate rule is that advertising is not
improper interference, even if it is intended to and does interfere,
not only with the plaintiff’s business prospects but also with the
plaintiff’s actual existing contracts.112
Defendant protecting his own interests. The defendant is also
free to protect his own preexisting financial interests by interfering
with the plaintiff’s contracts with others, so long as the
interference is carried out by lawful means such as persuasion.113
The principle is broader than a right to compete for economic
prospects. The Restatement and the cases recognize that the
defendant who has a legitimate interest of his own is free to protect
his interests even by interfering with an existing contract114 and
even if the plaintiff and defendant are not competitors.115 If the
defendant’s subjective purpose
1105
is to further his own legitimate ends, some courts express the

idea that his interference is justified by saying that interference is
only “incidental” and is protected for that reason116 or even by
saying that the defendant did not “intend” to interfere.117 The
defendant’s general right to protect his own interests by
interfering, however, has not traditionally provided him with
protection when he interferes without a preexisting contract or
property right of his own.118
Where the defendant does not obtain the very performance due
the plaintiff. In the core case of liability for interference with
contract, the defendant’s interference allows him to obtain the very
goods or services promised to the plaintiff. When the interfering
defendant acts in his own interests and does not in fact gain the
performance due the plaintiff under the contract, courts have
tended to reject liability, sometimes on the ground that the
defendant’s self-protective or self-aggrandizing motives are not
wrongful. For example, if a racing association excludes jockeys for
alleged misconduct, it interferes with the contracts between the
jockeys and horse owners. But the racing association’s interference
does not give the association the jockeys’ contract rights to ride the
horses. Consequently, its motive to protect its own interests does
not count as an improper purpose.119
Advice in another’s interests; truth; free speech. The defendant is
also free to advise breach when the defendant has taken
responsibility for the third person’s welfare,120 as where the
defendant advises a friend to breach a contract that is dangerous to
his health,121 a director of a corporation advises other directors to
terminate the plaintiff’s employment by the corporation,122 or an
agent or attorney acting within the scope of his employment
advises his principal123 or client124 to breach. Somewhat strangely
in the light of liability for honest persuasion to breach, the
Restatement also recognizes that the defendant is free to provide
truthful information and honest advice within the scope of a
request.125 Under the free speech rules, the defendant can also
take a position on social and political issues, even though the
position will induce others to cease all dealings with the plaintiff
and even if that is the purpose of his advocacy.126
1106
Consent. In the absence of public policy reasons to the contrary,

consent to the defendant’s conduct usually negates the tortious
elements or provides a “defense.” Some authority has held in
essence that the plaintiff’s consent to acts that interfere with
contract is a bar to the interference claim as well.127
Types of interference: situational analysis. There are many
specific types of interference cases. These include intentional
interference with the performance of the plaintiff’s promisor,
interference by persuasion of offers to the plaintiff’s promisor,
interference by coercive conduct or threats, and intentional
interference with the plaintiff’s contractual performance.
Moreover, interference can be effected by a contracting party or a
person identified with a contracting party such as an agent, and
may be achieved by the contracting party’s independent tort.
Although not developed here, each of these categories merits
special discussion.128
C. INTENTIONAL INTERFERENCE WITH
ECONOMIC OPPORTUNITY
§ 42.9 Intentional Interference with Economic
Opportunity: General Rules
Characteristics and elements. The tort variously called
interference with business relations, interference with economic
opportunities, interference with prospective advantage or the like
is an economic tort accomplished without physical harm to person
or property.129 The tort is generally recognized in American
courts.130 The basic elements of the tort are not identical to those
for the tort of interference with contract, but they are similar—the
plaintiff must show (1) that the defendant knew of and intended to
interfere with the plaintiff’s economic opportunity, (2) that the
opportunity was reasonably likely of fruition, (3) that the
defendant did in fact interfere by improper means, or in some
cases, by improper motive, and (4) that the interference caused
reasonably provable harms.131 On analogy to interference with
contract, courts may also require the plaintiff to prove that the
interfering defendant was a stranger to the economic opportunity
involved.132
1107
Differences between the two interference torts. The interference

with economic opportunity tort differs from interference with
contract in two broad respects. First, it redresses interferences
with mere economic opportunities that are not represented by
existing, enforceable contracts. Second, the economic opportunities
tort may require significantly more proof of wrongdoing than is
required in the most traditional interference with contract
claim.133 Phrased in the older language of privilege, the same point
can be made by saying that the defendant is privileged to interfere
with certain opportunities even though he would not be privileged
to interfere in the case of an existing and enforceable contract.
Burden of proof. Traditional thought held that the defendant
had the burden of justifying interference. This has substantially
changed in most states,134 but most emphatically in interference
with opportunity cases.135 Even in those states that still put the
burden on the defendant to justify an interference with an existing
contract, the burden may be placed upon the plaintiff to show
affirmative wrongdoing when the interference is merely with an
economic opportunity.136
Examples of interference with opportunity tort. A variety of
economic relationships not sealed by contract may be protected.
The opportunity to buy or sell goods or land, to employ others, or to
be employed at will are examples,137 but protection is not limited
to merchants or employment. Suppose the defendant persuades a
hospital to reverse its long-standing policy of renewing a
physician’s staff privileges. Staff privilege is essential to the
physician’s business, but her contract with the hospital does not
guarantee a renewal of her privilege to work in the hospital. If the
facts warrant a finding that the defendant acted improperly and
that the existing relationship between physician and hospital was
significant enough to deserve protection, the defendant may be
subject to liability in tort for interfering with a prospective
business relationship.138
Reasonable probability of reaping the economic benefit. The
plaintiff’s prospect or economic opportunity must be one that the
plaintiff would likely have captured but for the defendant’s
interference.139 Although some courts have defined the necessary
1108
economic opportunity or relationship to require a specific,

identifiable opportunity140 the plaintiff need not have a prospect of
obtaining a contract as such. It is enough if she has a probable
prospect of economic gain and provable losses resulting from the
interference,141 provided the economic opportunity is sufficiently
definite to warrant protection.
Historical liability for improper motive or purpose. At one time
judges stood ready to impose tort liability for ordinary business
decisions—seeking tenants for a mall,142 choosing a means of
company transport,143 discharging managerial employees believed
to be working against the company’s interests144—if a bad motive
was perceived. And judges were sometimes equally ready to
perceive a bad motive.145 Occasionally, liability for loss of economic
opportunity has been imposed without any objective indication of
wrongdoing at all.146
Contemporary rejection or limitation of motive-based liability. In
interference with prospects case, contemporary courts have
increasingly expressed skepticism about liability based upon
motive or purpose, as distinct from wrongful means. Some have
said that motive ordinarily is not sufficient.147 Others have gone
further and rejected motive-based liability altogether. Such courts
require improper means of interference, or even proof of specific,
named torts,148 violation of statute, constitution, regulation or
1109
independent common law rule.149 Short of formally eliminating

considerations of motive in determining liability, some courts have
imposed a strong practical constraint on motive-based liability by
insisting that when the defendant’s bad motive is a basis for
liability, the bad motive must be the defendant’s sole motive.150
This rule is hard to meet and restricts liability far more than the
traditional rule, which held the defendant could be liable if any or
a predominant part of his motive was improper. Altogether, the
cases seem to be part of a definite movement toward limiting or
even eliminating motive-based liability for interference with
prospects. This is to the good. In addition to risks of liability,
litigation costs in defending claims that often appear to be
unjustified can be substantial for the judicial system as well as the
defendant.
Rules protecting interference. As with interference with contract,
in an interests case, the defendant is also privileged to compete, to
act in self-interest, and to exercise other privileges. Competition is
merely a particular example of the principle that the defendant is
free to pursue his self-interest as long as the means are not
wrongful. Thus the defendant may be free to interfere with the
plaintiff’s prospects even if the two are not competitors.
Interference is not wrongful, then, when it is carried out by proper
means and the motive is to protect the defendant’s interests.
What counts as a protected economic opportunity; specific
business relationships. The Restatement,151 with explicit
agreement of some courts,152 protects any kind of reasonable
economic expectancy against intentional and improper
interference, so long as the plaintiff can prove a reasonable
probability that the opportunity would have been
1110
realized but for the defendant’s intentional interference and

that there is a reasonable basis for estimating damages.
Intentional interference with noncommercial opportunities.
Courts have extended liability for interference with economic
opportunity to some but not all noncommercial opportunities.
Liability is sometimes imposed for interference with a reasonably
expected gift or inheritance and for interference with a good
opportunity to recover in a lawsuit. Even so, in the few decisions on
point, courts have been loath to permit recovery for interference
with elections and sporting events that do not involve some specific
tort. They have also tended to reject liability for spoliation of
evidence which affects the plaintiff’s opportunity to prevail in a
lawsuit against someone else.153
D. THE PRIMA FACIE TORT
Nature of the prima facie tort. Several states have recognized
some version of an economic tort separate from all others, calling it
the prima facie tort.154 The tort stems from Justice Holmes’
argument that intended infliction of harm is prima facie tortious,
even if the defendant’s conduct did not amount to a specific or
named tort.155 Given intentional infliction of economic loss, then,
the defendant would be liable unless he proved affirmatively some
justification.
Relation to interference with contract or economic opportunity.
The prima facie tort idea, which makes everything tortious prima
facie and puts the burden on the defendant to justify his actions,
actually describes the older rule for interference with contract156—
that is, given intended interference, the defendant was liable
unless he convinced judge and jury that he was somehow justified
in doing so.157 Many intended harms are entirely rightful, as in the
case of a business that successfully competes for customers, thus
harming its rivals, or the lawyer who successfully wins a case, thus
harming opposing parties and perhaps their lawyers as well. For
this reason, the prima facie tort rule, as it worked out in
interference with contract cases, proved to be more like a bludgeon
than a scalpel. Consequently, the prima facie tort approach in
interference cases has largely given way to a rule requiring the
plaintiff at least to prove some improper means or motive, not
merely an intent to harm.158
Limited adoption in the courts. Incongruously, while many
courts have moved away from the prima facie tort idea in
interference cases, both by putting the burden of proof on the
plaintiff and by requiring some kind of wrongful conduct as a
condition of liability, several courts have adopted the “prima facie
tort” as a separate tort. The only significant
1111
jurisprudence on the prima facie tort is found in the courts of

Missouri,159 New Mexico160 and New York161 and in the
Restatement Second of Torts.162 Even among these jurisdictions,
however, the court may require the plaintiff to prove a lack of
justification in the first place, which takes the case out of the
prima facie tort category altogether by putting a burden on the
plaintiff to prove improper acts.163 Consequently, the doctrine is
more important in theory than it is in practice.
Limitations on the tort—relation to named torts. The prima facie
tort could engulf all intentional torts. For instance, if the prima
facie tort theory is adopted without restriction, a plaintiff could
recover for emotional distress or defamation even though the
plaintiff could not prove the elements required to establish those
torts. This kind of subversion of the tort rules has been rejected in
the cases, which insist that “prima facie tort may not be used to
evade the essential elements of traditional tort.”164 Yet the
plaintiff is also barred if the defendant’s act is unlawful;165 and, at
least under New York’s rule, if the plaintiff can state a claim under
a specific named tort, the prima facie theory must be discarded.166
At least some aspects of the economic loss rules may also bar the
prima facie tort claims.167
Other limitations. Courts have also required the plaintiff to
show special damages in order to recover under the prima facie tort
theory. Although the term special damages is not always clearly
defined,168 the term often means pecuniary loss, as opposed to
intangible harms169 or unrealized or bookkeeping losses.170 That
seems to be what the New York Court of Appeals had in mind in
requiring evidence that plaintiff “suffered specific and measurable
loss.”171 New York cases often say as well that damages must be
pleaded with specificity, and the complaint is dismissed when the
plaintiff does not
1112
do so.172 Courts have also circumscribed the prima facie tort by

demanding especially clear evidence of a specific intent to harm the
plaintiff.173
E. NEGLIGENT INTERFERENCE WITH
CONTRACT AND OPPORTUNITY
§ 42.11 General Rule Inhibition Against Recovery
for Negligently Caused Economic Harm
General rule that negligent interference with contract or
prospects is an insufficient basis for liability. Intentional
interference is required to establish a claim for interference with
contract or for interference with economic prospects.174
Correspondingly, negligent interference is no ground for recovery,
either in the case of interference with actual contracts or in the
case of interference with economic opportunities.175 Less than a
handful of courts hold otherwise.176
Interference claims and the economic loss rules. Although
economic loss rules have been discussed in an earlier chapter,177 it
is important here to recognize that so far as the economic loss rule
forbids recovery for negligently caused pure economic loss it is
substantially identical to the rules for interference with contract or
economic opportunities. Indeed, the economic loss rules in cases
among strangers—those who are not in a contract-like relationship
—are largely built on the interference rules; the great mass of
economic torts among strangers could easily be conceived as claims
for interference with contract or interference with economic
opportunity. Likewise, the interference torts in turn can be viewed
as specific instances of the more general economic loss rule that
defendants owe no duty to use care to protect strangers against
stand-alone economic harm.178
________________________________
1 Economic harm that results from physical or dignitary harm is
distinguished from economic harm that stands alone, not the result of
tortious physical or dignitary injury. See 3 Dobbs, Hayden & Bublick, The
2 § 42.9.
3 See § 42.10.
4 E.g., Pacific Nw. Shooting Park Ass’n v. City of Sequim, 158
Wash.2d 342, 144 P.3d 276 (2006).
5 For example, a competitor may ordinarily interfere with a
business relationship but not with a contract. See § 42.8. Occasionally
courts create confusion by treating a claim for interference with
prospective contracts differently from interference with economic
opportunities. See, expressing perplexity at this, Bodell Constr. Co. v. Ohio
Pac. Tech, Inc., 458 F.Supp.2d 1153, 1163 n.17 (D. Haw. 2006).
6 § 42.9.
7 Courts often list the elements of the torts, but those elements do
not escribe the forbidden acts other than the intended interference itself.
See §§ 42.3–42.4.
8 See § 46.2.
9 E.g., Pinewood Homes, Inc. v. Harris, 646 S.E.2d 826 (N.C. Ct.
App. 2007).
10 E.g., Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157 (9th Cir.
1997).
11 Ballard Group, Inc. v. BP Lubricants USA, Inc., 436 S.W.3d 445
(Ark. 2014); Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134,
63 P.3d 937, 131 Cal.Rptr. 2d 29 (2003) (where bribery violates a statute).
Bribery may also be the means of committing a tort. See § 43.10.
12 E.g., Van Sickle v. Hallmark & Assocs., Inc., 744 N.W.2d 532
(N.D. 2008).
13 E.g., Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir.
2005) (holding that copyright law did not preempt interference with
contract claims because, although the core facts were the same, the
interference claim turned on an extra element, the violation of contract
rights).
14 E.g., Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008).
15 E.g., Dominant Semiconductors SDN. BHD. v. Osram GMBH, 524
F.3d 1254 (Fed. Cir. 2008).
16 E.g., McConnell v. Hunt Sports Enters., 132 Ohio App.3d 657, 725
N.E.2d 1193 (1999).
17 E.g., Gilbert v. Sykes, 147 Cal.App.4th 13, 53 Cal.Rptr. 3d 752
(2007).
18 E.g., Nocula v. UGS Corp., 520 F.3d 719 (7th Cir. 2008).
19 E.g., BMK Corp. v. Clayton Corp., 226 S.W.3d 179 (Mo. Ct. App.
2007).
20 E.g., Deflon v. Sawyers, 139 N.M. 637, 137 P.3d 577 (2006).
21 Central Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC, 422
S.W.3d 312 (Mo. 2014) (en banc) (misappropriation of trade secrets); Alpha
Funding Group v. Continental Funding, LLC, 17 Misc.3d 959, 848
N.Y.S.2d 825 (Sup. Ct. 2007).
22 Storm v. Storm, 328 F.3d 941, 945 (7th Cir. 2003) (finding the
claim was a will contest in disguise and accordingly belonged in a state
court).
23 Knowing or reckless falsehood is constitutionally required in
certain cases when public officials or public figures sue for defamation. See
§§ 37.15–37.16. Perhaps the same or a similar requirement is imposed by
common law rules when the communication is an injurious falsehood such
as commercial disparagement. See Chapter 43.
24 See § 42.10. Green Bay Packaging, Inc. v. Preferred Packaging,
Inc., 932 P.2d 1091 (Okla. 1996), did it the other way around, upholding a
jury award in the interference with contract claim, but holding that
damages could not be awarded on the defamation claim arising from
identical facts and harms.
25 Medical Lab. Mgmt. Consultants v. American Broad. Cos., Inc.,
306 F.3d 806 (9th Cir. 2002) (where interference accomplished through
publication on a matter of public concern, plaintiff must prove both fault
and falsity); Serio-US Indus., Inc. v. Plastic Recovery Techs. Corp., 459
F.3d 1311 (Fed. Cir. 2006) (interference by asserting that claimant
infringed patent preempted or subject to patent law rule that such a claim
could be actionable only if asserted in bad faith); Aequitron Med., Inc. v.
CBS, Inc., 964 F.Supp. 704 (S.D.N.Y. 1997) (good discussion, citing cases);
Blatty v. New York Times Co., 42 Cal.3d 1033, 728 P.2d 1177, 232
Cal.Rptr. 542 (1987).
26 Kollar v. Martin, 167 Vt. 592, 706 A.2d 945 (1997) (also extending
the rule to insulate threats of suit from liability under the interference
with contract rules); but cf. Voorhees v. Guyan Mach. Co., 191 W.Va. 450,
446 S.E.2d 672 (1994) (defendant’s threat to enforce a non-competition
covenant led defendant’s competitor to discharge the plaintiff).
27 Structure Bldg. Corp. v. Abella, 377 N.J. Super. 467, 873 A.2d 601
(2005) (applying the federal antitrust law rule as a matter of state common
law); Titan Am., LLC v. Riverton Inv. Corp., 569 S.E.2d 57 (Va. 2002)
(interference with prospects claim based on a series of civil litigations was
subject to First Amendment rules on right to petition government under
Noerr-Pennington doctrine). The rule limiting liability for bringing civil
actions has been developed by the Supreme Court in antitrust cases, but it
appears to have a constitutional basis. See Professional Real Estate
Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct.
1920, 123 L.Ed.2d 611 (1993) (under Noerr-Pennington lines of antitrust
cases, the institution of a lawsuit can furnish a basis for liability only if it
is brought without objective basis and with subjective bad faith).
1993).
29 Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 932 P.2d
1091 (Okla. 1996) (striking the damages award based on a defamation
theory, leaving standing the award based on interference with contract).
The fact that the elements of the defamation claim and the interference
claim are different does not affect this point. If the plaintiff suffers only
one harm, her recovery must not be doubled merely because she advances
two theories. See Graff v. Motta, 695 A.2d 486 (R.I. 1997) (harm suffered
was a total of $1,000; jury awards of $1,000 on each of separate counts for
false imprisonment, malicious prosecution and abuse of process reversed;
the plaintiff cannot recover three times for the same loss). If the harm
from defamation includes harms not awarded in the claim for interference
with contract, damages for those distinct harms would be recoverable.
30 Two specific torts, however, bear a little resemblance to
interference with contract/prospects torts in offering only highly abstract
elements. Abuse of process turns on “improper purpose,” much like the
interference torts. Intentional infliction of emotional distress turns on
extreme and outrageous conduct inflicting distress.
31 Dan B. Dobbs, Tortious Interference with Contractual
Relationships, 34 Ark. L. Rev. 335 (1980); Harvey S. Perlman, Interference
with Contract and Other Economic Expectancies: A Clash of Tort and
Contract Doctrine, 49 U. Chi. L. Rev. 61 (1982). Mark P. Gergen, Tortious
Interference: How It Is Engulfing Commercial Law, Why This Is Not
Entirely Bad, and a Prudential Response, 38 Ariz. L. Rev. 1175 (1996),
argues that the present interference claims should be limited to
misappropriation of the plaintiff’s contract relations rather than mere
interference with them.
32 Gary Myers, The Differing Treatment of Efficiency and
Competition in Antitrust and Tortious Interference Law, 77 Minn. L. Rev.
1097 (1993).
33 Marina Lao, Tortious Interference and the Federal Antitrust Law
of Vertical Restraints, 83 Iowa L. Rev. 35 (1997) (arguing against certain
limits in federal antitrust law and suggesting that the common law
interference torts can to some extent supply the claimed deficiency in
antitrust law). Lillian R. BeVier, Reconsidering Inducement, 76 Va. L.
Rev. 877 (1990), supports the liability for one range of cases, but thinks it
is not justified for another.
34 See CSY Liquidating Corp. v. Harris Trust & Sav. Bank, 162 F.3d
929 (7th Cir. 1998); Debary v. Harrah’s Operating Co., Inc., 465 F.Supp.2d
250 (S.D.N.Y. 2006); Tamposi Assocs., Inc. v. Star Mkt. Co., Inc., 119 N.H.
630, 406 A.2d 132 (1979). As to the liability of a third party beneficiary for
interfering, see 3 Dobbs, Hayden & Bublick, The Law of Torts § 636 (2d ed.
2011 & Supp.).
35 Lumley v. Gye, 2 El. & Bl. 216, 118 Eng. Rep. 749 (Q.B. 1853),
discussed in 3 Dobbs, Hayden & Bublick, The Law of Torts § 632 (2d ed.
2011 & Supp.).
36 Restatement (First) of Torts § 766 (1939) (requiring neither
improper motive nor improper means; upon proof of intentional
interference, the plaintiff made a prima facie case).
37 Thus inducing an at-will employee to strike for better pay or
working conditions was tortious because it interfered with the employer’s
prospects of manufacturing or selling goods. See O’Brien v. People ex rel.
Kellogg Switchboard & Supply Co., 216 Ill. 354, 75 N.E. 108 (1905);
Walker v. Cronin, 107 Mass. 555 (1871). African-Americans were likewise
tortfeasors who could be enjoined when they peaceably picketed a Harlem
shoe store that refused to hire African-American employees. A.S. Beck
Shoe Corp. v. Johnson, 153 Misc. 363, 274 N.Y.S. 946 (1934). Federal
statutes on labor relations have made the first holdings obsolete and
contemporary rules concerning freedom of speech and association uphold
the right to speak on social and political issues.
38 Brimelow v. Casson, [1924] 1 Ch. 302 (good sense showed that a
labor association was justified in inducing theater owners to breach
contracts with a touring group known as the King Wu Tut Tut Revue
because the manager paid such small wages to women that they were
induced to enter prostitution; interference with contract was the only
means available to induce the manager to pay sufficient wages).
39 See § 42.8.
40 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134,
1158, 63 P.3d 937, 953, 131 Cal.Rptr.2d 29, 49 (2003) (“Intentionally
inducing or causing a breach of an existing contract is … a wrong in and of
itself”).
41 Della Penna v. Toyota Motor Sales, U.S.A., Inc.11 Cal.4th 376, 45
Cal.Rptr.2d 436, 902 P.2d 740 (1995) (interference with prospective
business relations; defendant’s conduct must be wrongful “by some
measure beyond the fact of the interference itself”); Larsen Chelsey Realty
Co. v. Larsen, 232 Conn. 480, 503, 656 A.2d 1009, 1022 n.24 (1995)
(interference with contract claim; defendant’s conduct must be “wrongful
by some measure beyond the fact of the interference itself”); KACT, Inc. v.
Rubin, 62 Mass.App.Ct. 689, 819 N.E.2d 610 (2004) (same).
42 § 42.4. The Restatement summarizes the rule by saying one is
subject to liability if he “intentionally and improperly interferes.” See
Restatement (Second) of Torts §§ 766, 766A, 766B (1979). What is
improper is determined by considering means or method of interference
and purpose, motive or ill will. E.g., id. § 766 cmts. c & r.
43 Kirkland v. Tamplin, 285 Ga.App. 241, 645 S.E.2d 653 (2007)
(improper means such as fraud or defamation are required to support an
action for interference with contract; merely persuading one to breach is
not enough). On this requirement in interference with prospects cases, see
§ 42.7. On the requirement in prospective advantage cases, see 3 Dobbs,
44 E.g., Marin Tug & Barge, Inc. v. Westport Petroleum, Inc., 271
F.3d 825 (9th Cir. 2001) (interference with economic prospects); Green v.
Racing Ass’n of Cent. Iowa, 713 N.W.2d 234 (Iowa 2006) (interference with
contract); Blackstone v. Cashman, 448 Mass. 255, 860 N.E.2d 7 (2007)
(interference with prospects); Avilla v. Newport Grand Jai Alai LLC, 935
A.2d 91 (R.I. 2007) (interference with prospects); Eldeco, Inc. v. Charleston
Cnty. Sch. Dist., 372 S.C. 470, 642 S.E.2d 726 (2007) (interference with
prospects); Briesemeister v. Lehner, 295 Wis.2d 429, 720 N.W.2d 531 (Ct.
App. 2006) (interference with contract).
45 As in, apparently, Landskroner v. Landskroner, 154 Ohio App.3d
471, 797 N.E.2d 1002 (2003).
46 See Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008) (improper
interference not listed in elements). The Harris opinion relied on a list of
elements that may have been obsolete after the decision in Fred Siegel Co.,
L.P.A. v. Arter & Hadden, 85 Ohio St. 3d 171, 707 N.E.2d 853 (1999),
which specifically required improper interference.
47 § 42.4.
48 As in Commercial Ventures, Inc. v. Rex M. & Lynn Lea Family
Trust, 145 Idaho 208, 177 P.3d 955 (2008) (elements of interference with
business relationships require showing improper interference, but
elements of interference with contract do not).
49 The Mogul S.S. Co., Ltd. v. McGregor, Gow, & Co., (1889) L.R. 23
Q.B.D. 598, 618–619, aff’d, [1892] A.C. 25, [1891–94] All E.R. Rep. 263
(H.L.) (Bowen, L.J.: the defendant’s purpose would be judged by “[t]he
good sense of the tribunal”); Brimelow v. Casson, [1924] 1 Ch. 302.
50 The idea of listing a series of abstract considerations appeared in
Glamorgan Coal Company, Limited, and Others v. South Wales Miners’
Federation and Others, [1903] 2 K.B. 545, 574, where the judge thought
that “regard might be had to the nature of the contract broken; the
position of the parties to the contract; the grounds for the breach; the
means employed to procure the breach; the relation of the person
procuring the breach to the person who breaks the contract; and I think
also to the object of the person in procuring the breach.” The
Restatement’s somewhat similar factors are discussed in § 42.5.
51 § 42.9.
52 § 42.3.
53 See, e.g., Harrison v. NetCentric Corp., 433 Mass. 465, 744 N.E.2d
622 (2001); Fikes v. Furst, 134 N.M. 602, 609, 81 P.3d 545, 552 (2003);
Greensleeves, Inc. v. Smiley, 68 A.3d 425 (R.I. 2013); Anderson Dev. Co.,
L.C. v. Tobias, 116 P.3d 323 (Utah 2005); see Restatement (Second) of
Torts §§ 766 to 766B (1979). Even if the ultimate burden of proof is cast
upon the defendant to justify his interference, improper interference is
still the ultimate issue. See, e.g., Kollar v. Martin, 167 Vt. 592, 706 A.2d
945 (1997) (not deciding burden of proof issue but requiring improper
interference). Some cases that appear to require both improper means and
improper motive may in fact blend the two so that proof of one tends to be
regarded as proving the other. Australian Gold, Inc. v. Hatfield, 436 F.3d
1228 (10th Cir. 2006), may be an example.
54 See § 42.4.
55 Id.
56 Restatement (Second) of Torts § 766 cmt. p (1979). The
Restatement instances the case of a speaker who extols economic
opportunities in the west, knowing that he will thereby induce many
people to breach contracts in the east to seek better opportunities
elsewhere. He is not liable for interference because he lacks the intent to
interfere with a specific person’s contract.
57 E.g., Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171,
707 N.E.2d 853 (1999); Selle v. Tozser, 786 N.W.2d 748 (S.D. 2010) (also
holding that defendant’s consultation with counsel did not preclude a
finding of improper motive); Nostrame v. Santiago, 61 A.3d 893 (N.J.
2013).
58 The Restatement supports liability for tortious interference with
contract if the defendant causes a person “not to perform” the contract
with the plaintiff. Restatement (Second) of Torts § 766 (1979). In some
cases, liability is imposed for interference with contract only if the
defendant causes an actual breach. Kirch v. Liberty Media Corp., 449 F.3d
388 (2d Cir. 2005); Health Call of Detroit v. Atrium Home & Health Care
Servs., Inc., 268 Mich.App. 83, 706 N.W.2d 843 (2005) (but permitting the
claim for interference with economic prospects, where no breach is
required). Actual breach of the contract with the plaintiff is not required
where the court recognizes a claim for (a) interference that makes the
plaintiff’s own performance more costly, see 3 Dobbs, Hayden & Bublick,
The Law of Torts § 634 (2d ed. 2011 & Supp.), or (b) interference with
business relations, see id. § 638.
59 Quelimane Co., Inc. v. Stewart Title Guar. Co., 19 Cal. 4th 26, 960
P.2d 513, 77 Cal. Rptr. 2d 709 (1998); Foster v. Churchill, 87 N.Y.2d 744,
665 N.E.2d 153, 642 N.Y.S.2d 583 (1996); Mills v. C.H.I.L.D., Inc., 837
A.2d 714 (R.I. 2003); see 3 Dobbs, Hayden & Bublick, The Law of Torts §
644 (2d ed. 2011 & Supp.).
60 APG, Inc. v. MCI Telecomms. Corp., 436 F.3d 294 (1st Cir. 2006)
(although the plaintiff could not prove it would have realized the business
opportunity had there been no interference, it might still recover by
showing that the defendant was unjustly enriched as a result of the
interference).
61 E.g., Parker v. Learn Skills Corp., 530 F.Supp. 2d 661 (D. Del.
2008); Bowl-Mor Co., Inc. v. Brunswick Corp., 297 A.2d 61 (Del. Ch. 1972)
(relying on the First Restatement of Torts, which used the older approach);
Serra Chevrolet, Inc. v. Edwards Chevrolet, Inc., 850 So.2d 259 (Ala.
2002).
62 Thus Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008), did not
include improper means or motive in its list of elements required by Ohio
law, apparently overlooking Fred Siegel Co., L.P.A. v. Arter & Hadden, 85
Ohio St.3d 171, 707 N.E.2d 853 (1999), which specifically required
improper interference in interference with contract cases and which
adopted the Restatement’s rule requiring the same kind of wrongfulness
for interference with economic opportunities. In Windsong Enterprises,
Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006), the court similarly
listed the elements of the tort without requiring improper means or
motive, although the same court had previously explained several times
that the interference must be improper. See Baptist Health v. Murphy,
365 Ark. 115, 226 S.W.3d 800 (2006); Stewart Title Guar. Co. v. American
Abstract & Title Co., 363 Ark. 530, 540, 215 S.W.3d 596, 601 (2005).
63 Commercial Ventures, Inc. v. Rex M. & Lynn Lea Family Trust,
145 Idaho 208, 177 P.3d 955 (2008).
64 Pacific Nw. Shooting Park Ass’n v. City of Sequim, 158 Wash.2d
342, 144 P.3d 276 (2006).
65 The older English cases spoke of justification, which is an
affirmative defense with the burden upon the defendant to raise the issue
and to persuade judge or jury. See, e.g., Ross v. Wright, 286 Mass. 269,
271, 190 N.E. 514, 515 (1934). In some cases, placing the burden upon the
defendant has dramatic effect. Alyeska Pipeline Serv. Co. v. Aurora Air
Serv., Inc., 604 P.2d 1090 (Alaska 1979).
66 See HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 131
Ill.2d 145, 545 N.E.2d 672, 137 Ill.Dec. 19 (1989).
67 See Palmer v. Arkansas Council on Econ. Educ., RPL, 344 Ark.
461, 40 S.W.3d 784 (2001) (“plaintiff must establish … intentional and
improper interference …”); Robert S. Weiss & Assocs., Inc. v. Wiederlight,
208 Conn. 525, 535–36, 546 A.2d 216 222–23 (1988) (“not every act that
disturbs a contract or business expectancy is actionable. [F]or a plaintiff
successfully to prosecute such an action it must prove that the defendant’s
conduct was in fact tortious. This element may be satisfied by proof that
the defendant was guilty of fraud, misrepresentation, intimidation or
molestation … or that the defendant acted maliciously.”); Morsani v. Major
League Baseball, 663 So.2d 653, 656 (Fla. Dist. Ct. App. 1995) (“plaintiff
must allege and prove … an intentional and unjustified interference with
that relationship by the defendant,” noting that the requirement was the
same for interference with contract and interference business
relationships); Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234 (Iowa
2006); Buster v. George W. Moore, Inc., 438 Mass. 635, 783 N.E.2d 399
(2003) (claims for interference with contract requires a showing that
defendant interfered “for an improper purpose or by improper means”);
Stokes v. State ex rel. Mont. Dep’t of Transp., 338 Mont. 165, 162 P.3d 865
(2007) (treating easement right as a “contract,” but finding that plaintiff
had not shown interference to be improper); Scruggs, Millette, Bozeman &
Dent, P.A. v. Merkel & Cocke, P.A., 910 So.2d 1093, 1099 (Miss. 2005)
(“plaintiff must show that the defendant knew of the existence of a
contract and did a wrongful act without legal or social justification”);
National Emp’t Serv. Corp. v. Olsten Staffing Serv., Inc., 145 N.H. 158,
761 A.2d 401 (2000) (“to prove tortious interference with contractual
relations, the plaintiff must prove … that the defendant wrongfully
induced the employees to breach that contract. ‘Only improper interference
is deemed tortious in New Hampshire’ ”); Fikes v. Furst, 134 N.M. 602, 81
P.3d 545 (2003) (repeatedly asserting that plaintiff must prove improper
motive or means, although some language presents issues in terms of
privilege); White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d
422, 426, 867 N.E.2d 381, 383, 835 N.Y.S.2d 530, 532 (2007) (plaintiff
“must show” improper procurement of breach); Van Sickle v. Hallmark &
Assocs., Inc., 744 N.W.2d 532, 540 (N.D. 2008) (to establish a prima facie
case, plaintiff must prove, among other things, that “defendant instigated
the breach without justification;” interference must be “wrongful”);
Greensleeves, Inc. v. Smiley, 942 A.2d 284 (R.I. 2007) (plaintiff “must also
show that the alleged wrongdoer … intended to do harm to the contractual
relationship without any legally recognized privilege or justification”);
Anderson Dev. Co. v. Tobias, 116 P.3d 323 (Utah 2005) (plaintiff must
prove improper purpose or improper means whether the claim is for
interference with existing contract or with business relationships); First
Wyo. Bank, Casper v. Mudge, 748 P.2d 713 (Wyo. 1988) (approving
instruction placing the burden on plaintiff to prove improper interference).
Courts making forceful statements requiring the plaintiff to prove
wrongful or improper conduct sometimes lapse into casual references to
privilege.
68 See Advance Sign Group, LLC v. Optec Displays, Inc., 722 F.3d
778 (6th Cir. 2013); Bodell Constr. Co. v. Ohio Pac. Tech, Inc., 458 F.Supp.
2d 1153 (D. Haw. 2006); Sisters of Providence in Wash. v. A.A. Pain Clinic,
Inc., 81 P.3d 989 (Alaska 2003); Della Penna v. Toyota Motor Sales,
U.S.A., Inc., 11 Cal.4th 376, 902 P.2d 740, 45 Cal.Rptr.2d 436 (1995);
(2004); Straube v. Larson, 287 Or. 357, 600 P.2d 371 (1979); Wal-Mart
Stores, Inc. v. Sturges, III, 52 S.W.3d 711 (Tex. 2001); see Restatement
(Third) of Unfair Competition § 1 cmt. a (1995). Alaska now appears to put
the burden on the plaintiff to show unjustified interference, see Sisters of
Providence in Wash., supra, but does not seem to have formally overruled
Alyeska Pipeline Serv. Co. v. Aurora Air Serv., Inc., 604 P.2d 1090 (Alaska
1979), involving an at-will contract analytically equivalent to an
interference with prospects claim.
69 See, e.g., Pleas v. City of Seattle, 112 Wash.2d 794, 804, 774 P.2d
1158, 1163 (1989). A few issues that are truly affirmative defenses with
the burden on the defendant may remain, but not those going to the
question of the defendant’s culpability. For example, the absolute judicial
privilege may be an affirmative defense available even when the plaintiff
has proved wrongdoing, say by a witness’ false testimony that leads others
to breach contracts with the plaintiff.
71 See § 42.7.
72 E.g., Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement
Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 38 P.3d 12
(2002); Seminole Tribe of Fla. v. Times Publ’g Co., Inc., 780 So.2d 310 (Fla.
Dist. Ct. App. 2001); Bridge v. Park Nat’l Bank, 179 Ohio App.3d 761, 903
N.E.2d 702 (2008).
73 See Dan B. Dobbs, Tortious Interference with Contractual
Relationships, 34 Ark. L. Rev. 335, 346 (1980).
74 See e.g., Carroll Anesthesia Assocs., P.C. v. Anesthecare, Inc., 234
Ga.App. 646, 507 S.E.2d 829 (1998); Nesler v. Fisher & Co., Inc., 452
N.W.2d 191 (Iowa 1990). Thus the First Restatement required neither
malice, ill will, nor any other improper motive or purpose. Restatement
(First) of Torts § 766 (1939). The judges in Lumley v. Gye, 2 El. & Bl. 216,
118 Eng. Rep. 749 (Q.B. 1853), used the “malice” and derivative terms
dozens of times. There are peculiar formulations consistent with this, for
example, a formulation that says the interference is in itself wrongful and
that its wrongfulness supports the inference of malicious motive, as if the
motive, not the wrongfulness of interference were the critical point. See
Allison v. Union Hosp., Inc., 883 N.E.2d 113 (Ind. Ct. App. 2008) (quoting).
75 Reeves v. Hanlon, 33 Cal.4th 1140, 95 P.3d 513, 17 Cal.Rptr.3d
289 (2004).
76 Fikes v. Furst, 134 N.M. 602, 609, 81 P.3d 545, 552 (2003); Eldeco,
Inc. v. Charleston Cnty. Sch. Dist., 372 S.C. 470, 642 S.E.2d 726 (2007)
(improper purpose, not necessarily “malice”); Anderson Dev. Co., L.C. v.
Tobias, 116 P.3d 323 (Utah 2005).
77 See, e.g., Marin Tug & Barge, Inc. v. Westport Petroleum, Inc.,
271 F.3d 825 (9th Cir. 2001) (interpreting California law to hold either
that in interference with prospects claims motive alone will normally be
insufficient basis for liability, or else that the motive must be
independently wrongful, as where discrimination is forbidden by statute);
Wal-Mart Stores, Inc. v. Sturges, III, 52 S.W.3d 711 (Tex. 2001); see 3
78 See § 42.9.
79 Kirkland v. Tamplin, 285 Ga.App. 241, 645 S.E.2d 653 (2007)
(persuading one to breach a contract with the plaintiff is insufficient basis
for liability because “the plaintiff must adduce evidence of improper action
or wrongful conduct,” generally meaning “predatory tactics such as
physical violence, fraud or misrepresentation, defamation, use of
confidential information, abusive civil suits, and unwarranted criminal
prosecutions”). See Pratt v. Prodata, Inc., 885 P.2d 786, 789 (Utah 1994)
(“The author of this opinion has grave doubts about the future vitality of
[the] improper-purpose prong, especially in the context of commercial
dealings. [Precedent] provides no standards by which a court or jury can
determine when to apply the improper-purpose test to commercial conduct.
Absent such standards, [the] improper-purpose test creates a trap for the
wary and unwary alike: business practices that are found to be ‘proper
means’ by a finder of fact and may otherwise be regarded as wholly
legitimate under our capitalistic economic system may be recast through a
jury’s unguided exercise of its moral judgment into examples of spite or
malice. For example, the enforcement of a binding, valid contractual
noncompete provision can result in liability under [precedent] merely upon
a jury finding of some ill-defined ‘improper purpose’ ”), overruled by
Eldridge v. Johndrow, 345 P.3d 553 (Utah 2015).
80 See Hawaii Med. Ass’n v. Hawaii Med. Serv. Ass’n, Inc., 113 Haw.
77, 116, 148 P.3d 1179, 1218 (2006) (in interference with economic
opportunity case, “[t]he plaintiff must prove that the defendant either
pursued an improper objective of harming the plaintiff or used wrongful
means that caused injury in fact.”); Kern v. Palmer Coll. of Chiropractic,
757 N.W.2d 651 (Iowa 2008) (spite or ill will).
81 See Eldeco, Inc. v. Charleston Cnty. Sch. Dist., 372 S.C. 470, 642
S.E.2d 726 (2007). Some cases still speak as if malice or ill will were
actually required, not merely sufficient. E.g., Akins v. ICI Americas Inc.,
1993 WL 832408 (M.D. Tenn. 1993), aff’d, 62 F.3d 1417 (6th Cir. 1995)
(unpublished). “Actual malice” is sometimes required in suits against a
supervisor for interfering with the plaintiff-employee’s employment
contract. See Sklar v. Beth Israel Deaconess Med. Ctr., 797 N.E.2d 381
(Mass. App. Ct. 2003).
82 The Mogul S.S. Co., Ltd. v. McGregor, Gow, & Co., (1889) L.R. 23
Q.B.D. 598, 618–619, aff’d, [1892] A.C. 25, [1891–94] All E.R. Rep. 263
(H.L.) (“[t]he good sense of the tribunal”).
83 § 42.6.
84 Presumably a relevant factor in motive would be “the interests the
defendant seeks to protect.”
85 Carvel Corp. v. Noonan, 3 N.Y.3d 182, 818 N.E.2d 1100, 785
N.Y.S.2d 359 (2004) (interference with economic opportunity rather than
contract case, if motive is basis for liability, motive to inflict harm must be
sole motive).
86 See Los Angeles Airways, Inc. v. Davis, 687 F. 2d 32l (9th Cir.
1982) (agent advising principal to breach contract not liable in part if
motive was to serve principal).
87 Even a defendant motivated by malice toward the plaintiff is
likely to be motivated as well by a desire to gain advantage. See Havana
Cent. NY2 LLC v. Lunney’s Pub, Inc., 49 A.D.3d 70, 852 N.Y.S.2d 32
(2007) (defendant did not have the required sole motive to harm the
plaintiff because defendant was motivated to gain profits).
88 Alyeska Pipeline Serv. Co. v. Aurora Air Serv., Inc., 604 P.2d 1090
(Alaska 1979) (“predominant” motive); Fikes v. Furst, 134 N.M. 602, 81
P.3d 545 (2003) (if motive was “primarily improper” the defendant is not
justified).
89 See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (discharge of public employee
partly for the illegitimate reason that he exercised First Amendment
rights and partly for legitimate reasons, no civil rights action by employee
if the legitimate reasons were sufficient to cause the discharge); cf.
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 115 S.Ct. 879, 130
L.Ed.2d 852 (1995) (wrongful motive, but after-acquired evidence would
have provided acceptable motive, remedy limited). In the case of
employment sex discrimination, however, 42 U.S.C.A. § 2000e–2(m) now
provides that if discriminatory motives are established for any
employment practice, that practice is unlawful even if other factors also
motivated it.
90 See Restatement (Third) of Unfair Competition § 1 cmt. c (1995).
91 See Pratt v. Prodata, Inc., 885 P.2d 786, 789 (Utah 1994),
overruled by Eldridge v. Johndrow, 345 P.3d 553 (Utah 2015).
92 Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 252 (Mo. 2006)
(“Even if there is an economic justification for interfering with a business
expectancy, the interfering party must not employ improper means”).
93 § 42.2.
94 KACT, Inc. v. Rubin, 819 N.E.2d 610 (Mass. App. Ct. 2004) (where
statute is intended to protect only rights of individual, not the public, the
individual can waive the statutory protection).
95 Saglioccolo v. Eagle Ins. Co., 112 F.3d 226 (6th Cir. 1997); Duggin
v. Adams, 234 Va. 221, 228, 360 S.E.2d 832, 837 (1987) (“Methods also
may be improper because they violate an established standard of a trade
or profession or involve unethical conduct. Sharp dealing, overreaching, or
unfair competition may also constitute improper methods”).
96 See Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real
Estate Servs., Inc., 138 Cal.App.4th 1215, 42 Cal.Rptr.3d 235 (2006) (but
holding that the association’s own internal remedies, such as arbitration,
would suffice under this rule).
97 Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862, 867 (7th Cir.
1999); cf. Wal-Mart Stores, Inc. v. Sturges, III, 52 S.W.3d 711 (Tex. 2001)
(“Conduct that is merely ‘sharp’ or unfair is not actionable and cannot be
the basis for an action for tortious interference with prospective
relations”).
98 E.g., Fabricor, Inc. v. E.I. DuPont de Nemours & Co., 24 S.W.3d 82
(Mo. Ct. App. 2000) (false statements about plaintiff’s ability to carry out a
contract counted as improper interference); Kraemer v. Harding, 159
Or.App. 90, 976 P.2d 1160 (1999) (defamatory statement counted as
improper means of interfering with the plaintiff’s employment as a school
bus driver); cf. Vito v. Inman, 286 Ga.App. 646, 649 S.E.2d 753 (2007)
(claim that defendant left messages for podiatrist’s patient causing patient
to sever relationship with podiatrist, but since the messages were not
actionable as defamation they were not improper for purposes of
interference claim either).
99 See Sunshine Custom Paints & Body, Inc. v. South Douglas
Highway Water & Sewer Dist., 173 P.3d 398 (Wyo. 2007) (defendant
physically blocked plaintiff’s road, thus interfering with contracts or
prospects, held actionable on the ground that the blockage was vigilante
activity). In general, if the defendant physically blocks use of the plaintiff’s
property, delaying completion of a contract, a trespass or nuisance action
would ordinarily be available and damages could easily include all
proximate harms, including the costs resulting from interference with a
known contract or economic opportunity. See Little v. Chesser, 256
Ga.App. 228, 568 S.E.2d 54 (2002) (damages for interference with road
easement could include plaintiff’s cost in paying workers whose work was
disrupted); Berliner v. Clukay, 150 N.H. 80, 834 A.2d 297 (2003) (one with
right to use public road properly recovered damages against trespasser
who damaged it, including the cost of repairing the road).
100 Commerce Funding Corp. v. Worldwide Sec. Servs. Corp., 249 F.3d
204 (4th Cir. 2001), relying on Duggin v. Adams, 234 Va. 221, 360 S.E.2d
832 (1987).
101 See Jackson v. Stanfield, 137 Ind. 592, 36 N.E. 345 (1894).
102 Kraemer v. Harding, 159 Or.App. 90, 976 P.2d 1160 (1999).
103 See Manufacturing Research Corp. v. Greenlee Tool Co., 693 F.2d
1037 (11th Cir. 1982) (identifying false statements “calculated to diminish
the market” for the plaintiff’s product as improper means without
asserting that the false statements qualified as disparagement/injurious
falsehood, defamation or misrepresentation). Caveat: If the false statement
is protected by a rule of the specific tort, many cases have held that the
statement cannot form a basis for liability under an interference with
contract or prospects theory. See § 42.2.
104 Pleas v. City of Seattle, 112 Wash.2d 794, 805, 774 P.2d 1158,
1163 (1989) (regarding something similar as involving both improper
motive and improper means).
105 Restatement (Second) of Torts §§ 766, 766A & 766B (1979).
106 Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694 (5th
Cir. 1999); Jackson v. Bi-Lo Stores, Inc., 313 S.C. 272, 277–78, 437 S.E.2d
168, 171 (1993) (“A contract which contravenes public policy is void, and
an action cannot be maintained for either its breach or for inducing its
breach”).
107 White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422,
867 N.E.2d 381, 835 N.Y.S.2d 530 (2007); Wal-Mart Stores, Inc. v. Sturges,
52 S.W.3d 711, 716–17 (Tex. 2001) (competition is limited “by promises
already made,” but absent such promises, competitors are free to use
lawful means to obtain advantage).
108 E.g., International Sales & Serv., Inc. v. Austral Insulated Prods.,
Inc., 262 F.3d 1152 (11th Cir. 2001); Networkip, LLC v. Spread Enters.,
Inc., 922 So.2d 355 (Fla. Dist. Ct. App., 2006); Miller v. Lockport Realty
Group, Inc., 377 Ill.App.3d 369, 878 N.E. 2d 171, 315 Ill.Dec. 945 (2007);
Restatement (Second) of Torts § 768 (1979). In courts that continue to put
the initial burden of proof upon the defendant to justify interference, see §
42.4, the opinions may say the defendant is privileged to compete rather
than saying that competition is not wrongful in the first place. Some
courts that have placed the burden of proof on the plaintiff may continue
to use the older terminology by speaking of the “privilege” of competition.
See Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707
N.E.2d 853 (1999). Either way, however, competition is protected.
109 Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234 (Iowa 2006)
(racing association did not act improperly in barring plaintiff-jockeys from
access to track while allegations of racial harassment against jockeys were
investigated).
110 Westfield Dev. Co. v. Rifle Inv. Assocs., 786 P.2d 1112 (Colo. 1990)
(asserting claim by filing lis pendens); Wilkin Elevator v. Bennett State
Bank, 522 N.W.2d 57 (Iowa 1994) (bank took ownership of security for
loan, this was legitimate self-interest and reflected a legal right); contra
Voorhees v. Guyan Mach. Co., 191 W.Va. 450, 446 S.E.2d 672 (1994) (not
citing the Restatement); Restatement (Second) of Torts § 773 (1979).
111 Some courts may hold that a bad motive overrides the financial
interest protection. See Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 444
(Alaska 2004).
112 White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422,
427, 867 N.E.2d 381, 384, 835 N.Y.S.2d 530, 533 (2007) (“Sending regular
advertising and soliciting business in the normal course does not
constitute inducement of breach of contract”); Restatement (Second) of
Torts § 766 cmts. m & p (1979).
113 Hassan v. Deutsche Bank A.G., 515 F.Supp.2d 426 (2007); Green
v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234 (Iowa 2006) (one “does not
improperly interfere with another’s contract by exercising its own legal
rights in protection of its own financial interests”); Fikes v. Furst, 134
N.M. 602, 81 P.3d 545 (2003) (interfering to protect reputational interest);
Eldeco, Inc. v. Charleston Cnty. Sch. Dist., 372 S.C. 470, 642 S.E.2d 726
(2007) (not improper to interfere to protect own contractual rights).
114 Bendix Corp. v. Adams, 610 P.2d 24 (Alaska 1980); Felsen v. Sol
Cafe Mfg. Corp., 24 N.Y.2d 682, 249 N.E.2d 459 (1969). See APG, Inc. v.
MCI Telecomms. Corp., 436 F.3d 294, 304 n.12 (1st Cir. 2006) (“[c]onduct
in furtherance of business competition is generally held to justify
interference with others’ contracts, so long as the conduct involves neither
‘wrongful means’ nor ‘unlawful restraint of trade,’ ” citing authority that
applied only to interference with prospects); Australian Gold, Inc. v.
Hatfield, 436 F.3d 1228, 1236 (10th Cir. 2006) (seemingly suggesting that
the rule of no liability where means and motive are proper is a special
dispensation for bettering “one’s own business”). Where the court limits
liability to cases of improper means, a motive to compete by lawful
competition is necessarily inadequate. See, e.g., Kirkland v. Tamplin, 285
Ga.App. 241, 645 S.E.2d 653 (2007).
115 Langer v. Becker, 176 Ill.App.3d 745, 531 N.E.2d 830, 126 Ill.Dec.
203 (1988) (defendant can interfere to protect his own equal or greater
economic interest); St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d
194 (Utah 1991) (but indicating that liability might be imposed if desire to
harm was predominant purpose); Carvel Corp. v. Noonan, 3 N.Y.3d 182,
191, 818 N.E.2d 1100, 1104, 785 N.Y.S.2d 359, 363 (2004) (the issue “does
not … depend on the parties’ status as competitors…. [A]s long as the
defendant is motivated by legitimate economic self-interest, it should not
matter if the parties are or are not competitors in the same marketplace”).
116 See K & K Mgmt., Inc. v. Lee, 316 Md. 137, 557 A.2d 965 (1989)
(reviewing cases).
117 Kreuzer v. George Washington Univ., 896 A.2d 238 (D.C. 2006). In
Kreuzer, the defendant knew its activity interfered with the plaintiff’s
economic prospects, but the court held that it did not intend to interfere,
seemingly meaning either that its purpose was not interference or that its
purpose was justified. On the meaning of intent, see § 42.4.
118 See BMK Corp. v. Clayton Corp., 226 S.W.3d 179 (Mo. Ct. App.
2007) (ownership interest or prior contract interest); White Plains Coat &
Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422, 867 N.E.2d 381, 835
N.Y.S.2d 530 (2007) (giving examples, including interest of stockholders in
the breaching party’s business, parent and subsidiary corporations, and
creditor of breaching party); Restatement (Second) of Torts § 769 cmt. c
(1979) (dealing only with interference with prospects).
119 Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234 (Iowa 2006).
120 Langer v. Becker, 176 Ill.App.3d 745, 531 N.E.2d 830, 126 Ill.Dec.
203 (1988); Restatement (Second) of Torts § 769 (1979).
121 Restatement (Second) of Contracts § 770 & illus. 4 (1979).
122 Foster v. Churchill, 87 N.Y.2d 744, 665 N.E.2d 153, 642 N.Y.S.2d
583 (1996).
123 E.g., Lachenmaier v. First Bank Sys., Inc., 246 Mont. 26, 803 P.2d
614 (1990). When the agent acts exclusively in his own interests and
outside the scope of his employment, however, this justification does not
apply. E.g., Ives v. Guilford Mills, Inc., 3 F.Supp.2d 191 (N.D.N.Y. 1998).
124 Los Angeles Airways, Inc. v. Davis, 687 F. 2d 321 (9th Cir. 1982).
125 Restatement (Second) of Torts § 772 (1979). See Allen v. Safeway
Stores, Inc., 699 P.2d 277 (Wyo. 1985) (truthful information given by
customer or business contact about treatment by business employee is
fully protected whether requested or not).
126 NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409,
73 L.Ed.2d 1215 (1982).
127 See Harrison v. Netcentric Corp., 433 Mass. 465, 744 N.E.2d 622
(2001) (“By signing this agreement, the plaintiff accepted that NetCentric
had an interest in his unvested shares and that the vesting of those shares
was connected to his continued employment relationship with NetCentric.
Thus, the plaintiff implicitly agreed that his at-will contract could be
interfered with in this manner: he was subject to discharge without cause,
and NetCentric could exercise its right to repurchase the plaintiff’s
unvested shares”).
128 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 631–37 (2d ed.
2011 & Supp.).
129 On economic torts generally, see Chapter 41.
130 See, e.g., Hawaii Med. Ass’n v. Hawaii Med. Servs. Ass’n, Inc., 113
Haw. 77, 148 P.3d 1179 (2006); Mortgage Specialists, Inc. v. Davey, 904
A.2d 652 (N.H. 2006); Caprer v. Nussbaum, 36 A.D.3d 176, 825 N.Y.S.2d
55 (2006); Burbank Grease Servs., LLC v. Sokolowski, 717 N.W.2d 781
(Wis. 2006); James O. Pearson, Liability For Interference With At Will
Business Relationship, 5 A.L.R.4th 9 (1981).
131 See, e.g., listing elements in slightly varied formulations, Korea
Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 63 P.3d 937 (2003);
McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841 (1995).
132 ASC Constr. Equip. USA, Inc. v. City Commercial Real Estate,
Inc., 303 Ga.App. 309, 693 S.E.2d 559 (2010) (relating third party rule to
rule that defendant could be protected by privilege to interfere); cf.
McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841 (1995) (applying third
party rule to interference with economic relations but perhaps meaning
interference with contract). In case of interference with actual contracts,
the third party rule is merely an indirect way of stating an economic loss
rule, saying that, between parties and privies, the contract itself ordinarily
controls, not tort law. See Chapter 41. In the case of interference with
economic opportunity, however, a “third party” requirement seems at least
in part to indirectly address a slightly different question—whether the
defendant was a wrongdoer (or privileged), or whether the defendant
merely withdrew from an economic relationship he was not obliged to
accept in the first place.
133 See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134,
63 P.3d 937 (2003) (“while intentionally interfering with an existing
contract is “a wrong in and of itself,” intentionally interfering with a
plaintiff’s prospective economic advantage is not. To establish a claim for
interference with prospective economic advantage … a plaintiff must plead
that the defendant engaged in an independently wrongful act. An act is
not independently wrongful merely because defendant acted with an
improper motive.”).
134 § 42.4.
135 See Clinch v. Heartland Health, 187 S.W.3d 10 (Mo. Ct. App.
2006).
136 Compare Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th
376, 902 P.2d 740, 45 Cal.Rptr.2d 436 (1995), with Quelimane Co., Inc. v.
Stewart Title Guar. Co., 19 Cal.4th 26, 960 P.2d 513, 77 Cal.Rptr.2d 709
(1998).
137 Restatement (Second) of Torts § 766B cmt. c (1979).
138 E.g., Straube v. Larson, 287 Or. 357, 600 P.2d 371 (1979). As
pointed out at length elsewhere, there are often other possible claims,
based on specific torts. Depending on the facts, these may include
defamation and violation of antitrust statutes. See § 42.2.
139 Santana Prods. Inc. v. Bobrick Washroom Equip. Inc., 401 F.3d
123 (3d Cir. 2005) (plaintiff was excluded from making a bid, but there
were several other bidders and no showing that the plaintiff was likely to
have won the contract); Stehno v. Spring Spectrum, 186 S.W.3d 247, 250
(Mo. 2006) (“The valid business expectancy requirement involves more
than a mere subjective expectancy—it must be a reasonable expectancy of
continued employment. The plaintiff must have more than a ‘mere hope’ of
continued employment.”).
140 See Table Steaks v. First Premier Banks, 650 N.W.2d 829 (S.D.
2002) (relationship with identifiable third person required);
DaimlerChrysler Corp. v. Kirkhart, 148 N.C.App. 572, 561 S.E.2d 276
(2002) (communications to large number of people suggesting they had
potential lawsuits against vehicle manufacturer was not an interference
with prospects of a contract and not actionable).
141 Hannex Corp. v. GMI, Inc., 140 F.3d 194 (2d Cir. 1998);
Restatement (Second) of Torts § 766B cmt. c (1979).
142 In Deauville Corp. v. Federated Dep’t Stores, Inc., 756 F.2d 1183
(5th Cir. 1985), Federated was developing a large shopping mall and had
some anchor tenants. It induced Ward, a retailer, to sign on as a tenant,
knowing that Ward had earlier signed on with the plaintiff’s competing
mall. However, Federated also knew also that Ward had the right to
withdraw from its contract with the plaintiff. Ward did withdraw and the
plaintiff sued Federated for interfering with its contract with Ward. The
court concluded that Federated and Deauville were competitors for Ward’s
tenancy and that Ward was not contractually committed to remain with
Deauville. Nevertheless, the court held that a jury could find that
Federated’s motive was “only to harm Deauville” and that if the jury so
found, Federated would be liable.
143 Alyeska Pipeline Serv. Co. v. Aurora Air Serv., Inc., 604 P.2d 1090
(Alaska 1979), summarized in part in § 42.6.
144 In Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282, 79
A.L.R.3d 651 (1976), plaintiff was a manager for a Ford dealership, which
had the contractual right to terminate the plaintiff’s employment. Ford
Motor Company, believing that the plaintiff’s membership in a dealer
alliance was inimical for Ford’s interest, induced the dealership to exercise
its rights by terminating the plaintiff’s employment. Ford’s motive was to
protect its own interests as it saw them, but the court made its own
determination that Ford’s action did not in fact protect its business
interests and that its motive was therefore improper. On this basis, Ford
would be liable for interference with the plaintiff’s contract, even though
the dealer acted within its rights in terminating.
145 See, on inferring bad motives, § 42.6.
146 Fossett v. Davis, 531 So.2d 849 (Ala. 1988) (defendant who merely
explained to a landlord that she had a right to evict a tenant and procured
a lawyer to initiate an eviction was held liable, although he apparently
only assisted the landlord in exercising her rights and the tenant lost
nothing she had a right to keep; the tenant moved out upon second
eviction notice, no indication that landlord lacked right to evict).
147 Tom’s Foods, Inc. v. Carn, 896 So.2d 443, 458 (Ala. 2004); Avilla v.
Newport Grand Jai Alai LLC, 935 A.2d 91 (R.I. 2007); see also Saab Auto.
AB v. General Motors Co., 770 F.3d 436 (6th Cir. 2014).
148 Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862 (7th Cir.
1999) (Illinois law; “We agree with Professor Perlman that the tort of
interference with business relationships should be confined to cases in
which the defendant employed unlawful means to stiff a competitor,
Harvey S. Perlman, “Interference With Contract and Other Economic
Expectancies: A Clash of Tort and Contract Doctrine,” 49 U. Chi. L.Rev. 61
(1982), and we are reassured by the conclusion of his careful analysis that
the case law is generally consistent with this position as a matter of
outcomes as distinct from articulation.”); Great Escape, Inc. v. Union City
Body Co., Inc., 791 F.2d 532 (7th Cir. 1986) (Indiana law; motive alone is
insufficient; there must be something “illegal”); Reeves v. Hanlon, 33 Cal.
4th 1140, 95 P.3d 513, 17 Cal. Rptr.3d 289 (2004); Rutland v. Mullen, 798
A.2d 1104 (Me. 2002) (fraud or unlawful coercion); Nazeri v. Missouri
Valley Coll., 860 S.W.2d 303 (Mo. 1993) (“If the defendant has a legitimate
interest, economic or otherwise, in the contract or expectancy sought to be
protected, then the plaintiff must show that the defendant employed
improper means in seeking to further only his own interests…. [I]mproper
means are those that are independently wrongful, such as threats,
violence, trespass, defamation, misrepresentation of fact, restraint of
trade, or any other wrongful act recognized by statute or the common
law”); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001); Peace
v. Conway, 246 Va. 278, 435 S.E.2d 133 (1993). A little authority has
applied this restriction even in interference with contract cases. Kirkland
v. Tamplin, 285 Ga.App. 241, 645 S.E.2d 653 (2007) (improper means such
as fraud or defamation are required to support an action for interference
with contract; merely persuading one to breach is not enough for liability).
Presumably the same authority would adopt the rule for interference with
prospects claims where liability is generally more limited.
149 Reeves v. Hanlon, 33 Cal.4th 1140, 95 P.3d 513, 17 Cal.Rptr.3d
289 (2004).
150 Scutti Enters., LLC. v. Park Place Entm’t Corp., 322 F.3d 211, 215
(2d Cir. 2003); Fikes v. Furst, 134 N.M. 602, 609, 81 P.3d 545, 552 (2003);
(2004); cf. Lake Panorama Servicing Corp. v. Central Iowa Energy Coop.,
636 N.W.2d 747 (Iowa 2001) (“A defendant’s conduct is improper only if it
is undertaken with ‘the sole or predominant purpose to injure or financially
destroy’ another. If the interference is a necessary consequence of actions
taken for a different purpose, the acts may be deemed intentional, but are
not improper.”). Another view rejects liability if the justifiable motive
would have produced the same conduct by the defendant. See Mt. Healthy
City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d
471 (1977); § 42.6.
151 The Restatement (Second) of Torts § 766B (1979) was given a
misleading title which speaks of interference with prospective contractual
relations, but in comments it is clear that it equally protects ordinary
sales, for example, in a retail business, where no contracts at all are
involved. See id. cmt. c.
152 See Abbott Labs. v. TEVA Pharms. USA, Inc., 432 F.Supp.2d 408
(D. Del. 2006) (claimed interference with prospective sales of
pharmaceuticals, no need to “identify specific relationships that have been
disrupted”); Hawaii Med. Ass’n v. Hawaii Med. Servs. Ass’n, Inc., 148 P.3d
1179, 1220 (Haw. 2006) (emphasizing that plaintiffs “are not required to
allege the existence of a potential or actual contract, nor are they required
to specifically name the third party with whom they have a business
expectancy, provided that they have alleged a relationship or potential
relationship that ‘would have inured to [their] economic benefit’ ”). For a
fuller discussion, see 3 Dobbs, Hayden & Bublick, The Law of Torts § 642
(2d ed. 2011 & Supp.).
153 Spoliation is discussed separately from other interferences. §§
44.4–44.7.
154 Distinguish the prima facie tort from the principle that intended
physical harm is prima facie actionable. See Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 5 (2010). Prima facie
actionability of intended physical harm summarizes one effect of the
specific rules of battery, assault, false imprisonment, and trespass.
155 Aikens v. Wisconsin, 195 U.S. 194, 204, 25 S.Ct. 3, 5, 49 L.Ed. 154,
158 (1904).
156 See Mark P. Gergen, Tortious Interference: How It Is Engulfing
Commercial Law, Why This Is Not Entirely Bad, and a Prudential
Response, 38 Ariz. L. Rev. 1175 (1996) (prima facie tort was really the
source of intentional interference law).
157 § 42.3.
158 § 42.4 (improper purpose or motive & burden of proof).
159 Porter v. Crawford & Co., 611 S.W.2d 265 (Mo. Ct. App. 1980).
160 Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (1990).
161 Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70
N.E.2d 401 (1946).
162 Restatement (Second) of Torts § 870 (1979) (providing no
illustrations of the prima facie tort in the context of economic harms).
163 LPP Mortg., Ltd. v. Marcin, Inc., 224 S.W.3d 50, 55 (Mo. Ct. App.
2007) (“In order to make a submissible claim, claimants in prima facie tort
must ‘demonstrate that they have substantial evidence on each of the four
elements,’ ” the fourth of which is the defendant’s lack of justification).
164 Fromson v. State, 176 Vt. 395, 848 A.2d 344 (2004); see also Engel
v. CBS, Inc., 93 N.Y.2d 195, 689 N.Y.S.2d 411, 711 N.E.2d 626 (1999) (if
the jurisdiction follows the special grievance rule of malicious
prosecution/wrongful civil litigation, that rule cannot be avoided by
claiming prima facie tort instead).
165 Kelly v. Golden, 352 F.3d 344 (8th Cir. 2003) (Missouri law,
lawfulness of the defendant’s act is an element of the claim for prima facie
tort); Druyan v. Jagger, 508 F.Supp. 2d 228 (S.D.N.Y. 2007) (same);
Portales Nat’l Bank v. Ribble, 134 N.M. 238, 75 P.3d 838 (Ct. App. 2003)
(same).
166 Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 480 N.E.2d 349,
355, 490 N.Y.S.2d 735, 741 (1985) (“Where relief may be afforded under
traditional tort concepts, prima facie tort may not be invoked as a basis to
sustain a pleading which otherwise fails to state a cause of action in
conventional tort.”); Curiano v. Suozzi, 63 N.Y.2d 113, 117, 469 N.E.2d
1324, 1327, 480 N.Y.S.2d 466, 469 (1984) (“once a traditional tort is
established the cause of action for prima facie tort disappears”).
167 See Druyan v. Jagger, 508 F.Supp. 2d 228 (S.D.N.Y. 2007) (a
concert ticket was a contract which limited the plaintiff’s recovery in case
the performance was not given; this prevented the plaintiff’s recovery for
fraud and, given that limitation, the prima facie tort claim was also
barred).
168 See D’Angelo-Fenton v. Town of Carmel, 470 F.Supp. 2d 387 (S.D.
N.Y. 2007).
169 As in claims for slander. See § 534. The term is widely used to
contrast intangible or nonpecuniary harms. See Washington Metro. Area
Transit Auth. v. Jeanty, 718 A.2d 172 (D.C. 1998); Strahin v. Cleavenger,
216 W.Va. 175, 603 S.E.2d 197 (2004); Dan B. Dobbs, Law of Remedies §
12.2(3) (2d ed. 1993).
170 See Dan B. Dobbs, Law of Remedies § 3.4 (2d ed. 1993).
171 Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 480 N.E.2d 349, 355
(1985).
172 Lynch v. McQueen, 309 A.D.2d 790, 765 N.Y.S.2d 645 (2003).
173 See Tamko Roofing Prods., Inc. v. Smith Eng’g Co., 450 F.3d 822
(8th Cir. 2006).
174 § 42.4.
175 Misany v. United States, 873 F.2d 160 (7th Cir. 1989) (Wisconsin
law, intent required for interference with contract or prospects); Williams
v. University Med. Ctr. of S. Nev., 688 F.Supp.2d 1134 (D. Nev. 2010)
(Nevada does not recognize claim for negligence interference with
economic expectancies); Great Sw. Fire Ins. Co. v. CNA Ins. Cos., 557
So.2d 966 (La. 1990); King’s Daughters & Sons Circle No. Two of
Greenville v. Delta Reg’l Med. Ctr., 856 So.2d 600, 606 (Miss. Ct. App.
2003) (“mere negligent interference is no cause of action at all”); Hatfield
v. Health Mgmt. Assocs. of W. Va., 223 W.Va. 259, 672 S.E.2d 395 (2008)
(negligence insufficient basis for liability either for interference with
contract or with economic expectancy).
176 §§ 42.11, 41.11.
177 Chapter 41.
178 See 2 Harper, James & Gray, The Law of Torts § 6.10 (3d ed. 2006
(with Supps.)); but cf. Flagstaff Affordable Housing Ltd. P’ship v. Design
Alliance, Inc., 223 P.3d 664 (Ariz. 2010) (seemingly doubting the generality
of the stranger version of the economic loss rule and suggesting that the
cases against liability are best explained as products of rules internal to
particular torts).
1113
Chapter 43
MISREPRESENTATION AND
FALSEHOODS
Analysis
A. INJURIOUS FALSEHOOD
§ 43.1 Falsehoods Published to Others Causing Plaintiff’s Economic
Harm
B. FRAUDULENT MISREPRESENTATIONS
C. NEGLIGENT MISREPRESENTATION
D. INNOCENT MISREPRESENTATION
E. MAJOR ISSUES
§ 43.7 Reliance
§ 43.8 Factual Representations: Opinion, Law and Prediction
F. ECONOMIC HARMS IN SPECIAL RELATIONSHIPS
§ 43.10 Breach of Fiduciary Duty, Bad Faith, Wrongful Discharge and
Economic Duress
__________
A. INJURIOUS FALSEHOOD
§ 43.1 Falsehoods Published to Others Causing
Plaintiff’s Economic Harm
Interests protected in injurious falsehood. The law of injurious
falsehood applies to derogatory publications about the plaintiff’s
economic or commercial interests that diminish those interests or
their value. For example, a false statement communicated to
others asserting that the plaintiff’s product is inferior may cause
loss of sales.1 Injurious falsehood law does not redress dignitary
harms.2 Courts and lawyers often call injurious falsehood by more
specific names like commercial disparagement or trade libel when
the defendant disparages a product,3 or slander of title when the
defendant casts doubt on the plaintiff’s interest in property.4 The
principle behind the injurious falsehood tort is not limited to those
particular forms of the tort. False statements about the plaintiff’s
1114
pecuniary interests may qualify even if they are not about the
property, product or services offered by the plaintiff.5
Examples of injurious falsehood. In the slander of title form of
injurious falsehood, the defendant casts doubt on the plaintiff’s
title to a legally recognized interest. It is enough that the
defendant claims the plaintiff’s title is subject to an encumbrance
that would affect marketability or value. This is often done by
filing or recording an unjustified lien, lis pendens, or option
contract.6 Intangible as well as tangible property is protected
against attacks on the plaintiff’s title. For instance, intellectual
property rights may be subject to a slander of title claim when
federal law does not preempt the claim under patent or other
federal laws.7
A false statement that the ratings of the plaintiff’s radio show
are too low to justify continuing the show can be an actionable
disparagement.8 Even a publication falsely stating the price the
plaintiff charges for his goods has been held actionable.9 Likewise
actionable are statements that the plaintiff has insufficient funds
to continue in business.10
Carrying over defamation rules and concepts. Many legal
conceptions important in defamation cases carry over and apply in
injurious falsehood cases as well.11 Similarly, constitutional
protections for the defendant that apply when the facts are
adjudicated as a claim for defamation may equally apply when the
same facts are adjudicated as a claim for injurious falsehood12
unless the court excludes constitutional protection because the
falsehood is unprotected commercial speech.13 However, the
common law injurious
1115
falsehood rules will frequently require the same proof as

required by the Constitution, so constitutional questions may be
superfluous.
Rejecting defamation rules. Injurious falsehood claims are also
different from defamation claims in a number of ways. Damages
are of course different because the nature of the harm, which is
purely pecuniary, differs from the reputational harm in defamation
cases. More importantly, the plaintiff in injurious falsehood must
prove three major elements that a plaintiff suing for libel was not
required to prove in traditional common law defamation suits—
falsity of the statement, fault on the part of the defendant, and
pecuniary harm.14
Elements of injurious falsehood claims. To sustain a claim for
injurious falsehood (in any of its forms), the plaintiff must prove
that the defendant
(1) published a provably false communication;15
(2) of and concerning the plaintiff or the plaintiff’s
pecuniary interests;16
(3) with knowledge of the statement’s falsity or with
recklessness as to its falsity, or, in some states, with malice
in the sense of ill will;
(4) when pecuniary harm to the defendant was either
intended or foreseeable;17 and
(5) resulting pecuniary harm to the plaintiff.
Some courts agree in essence with these requirements but continue
the older habit of invoking them in determining the defendant’s
privilege rather than as elements of the plaintiff’s case.18 In
addition, some courts invoke the knowing or reckless falsehood rule
as a matter of constitutional law applicable to cases in which the
plaintiff is a public figure,19 rather than as a matter of state law
applicable to all cases.
The fault required by the tort, its relationship to truth or
falsity, the pecuniary harm requirement, and the tort’s
interrelationship with other torts are all important issues
developed more fully in other publications.20
B. FRAUDULENT MISREPRESENTATIONS
Misrepresentation inducing an economic transaction. Both the
torts of intentional misrepresentation and negligent
misrepresentation are derived from the old tort of Deceit, which
covered pure economic harm caused by misrepresentations of fact
made directly or indirectly to, and justifiably relied upon by the
plaintiff. The
1116
misrepresentation normally must induce the plaintiff to enter

into a transaction, or sometimes to avoid a transaction, as where it
induces the plaintiff to retain shares of stock rather than sell them.
The traditional tort of deceit required an intentional
misrepresentation as well as certain other elements. False
communications, including misleading nondisclosures, are often
referred to as fraud or deceit when the falsity is intentional.
Statutes. Statutes are often important in contemporary
misrepresentation cases and often must be consulted. Statutes
covering particular situations like the civil RICO statute,21
securities statutes,22 and consumer protection statutes,23 have
helped create specialized and sometimes intricate fields that may
or may not offer more protection against fraud than the common
law. The federal Qui Tam statute permits private persons to sue
contractors who make false claims against the government, in
effect permitting the private plaintiff to share part of the
recovery.24
Examples. Examples of tortious misrepresentation include the
homeowner who induces a sale by falsely representing that the
basement does not flood;25 the employer who recruits desirable
employees by falsely representing that it had no plans to move or
close26 or who induces older employees to quit by falsely
representing retirement options;27 the adjuster who falsely says
that a release to be signed by an injured person is merely a
receipt;28 and even the HMO that induces members to join by
falsely representing that it will expeditiously arbitrate disputes
when in fact it stonewalls even the dying patient.29 If such
representations are culpably false, the plaintiff who justifiably
relies upon them may have a claim for damages30 or, in some
cases, for equitable relief such as rescission of the transaction.
1117
Damages vs. rescission and other equitable remedies;

constructive fraud. The plaintiff who suffers financial harm from
reliance upon a misrepresentation can frequently seek rescission of
any agreement that resulted from that reliance or can raise the
misrepresentation as a defense when she is sued for breach of the
agreement. Sometimes she can capture whatever gains the
defendant made from his fraud. The old equity courts applied the
term constructive fraud to any conduct that would warrant
equitable relief such as rescission or reformation31 and to any
ground for equitable relief against fiduciaries.32 Constructive fraud
in this sense is not actual fraud at all; it includes even innocent
misrepresentations that will warrant rescission or reformation.33
Thus rescission or avoidance of the transaction is permitted for
innocent material misrepresentations, subject to timeliness rules
and other equities. The term constructive fraud is perhaps best
avoided because it invites lawyers to confuse the rules for equitable
relief and fiducial obligation with the rules for damages that
traditionally require a knowing falsehood.34 The rules stated in
this chapter are those governing the tort claim for damages except
when specifically noted otherwise.
“Misrepresentation” as description of a fact in claims for
physical or emotional harm or as a tort. The terms fraud, deceit,
and misrepresentation are used as the name of the economic tort.
However, these terms can also be used, not as a name for a cause of
action but as a description of facts such as an actual event or the
communication unrelated to economic transactions.
Misrepresentation as a way of establishing negligent physical
harm. In that descriptive sense, many misrepresentations are
important in establishing legal liability for some tort other than
misrepresentation or fraud. For example, a former employer might
subject others to danger by recommending a sexual predator for a
job with children.35 A physician might cause emotional distress by
representing to a patient that she has a disease when she does
not.36 A potential sexual partner might obtain consent to sexual
relations by representing that he is not infected with disease or
that he cannot
1118
have children.37 A driver might cause a collision by giving

signals representing that it is safe to pass when it is not.38 In these
examples, the misrepresentation is merely a way in which personal
injury or direct emotional harm is inflicted and need not be viewed
as a distinct tort called misrepresentation or fraud. Although some
courts do treat the plaintiff’s claims in such cases as involving the
tort of misrepresentation,39 liability for personal injury, property
damage or emotional harm in such those cases is actually
supported by the rules of negligence or those of intentional torts
such as battery.40 Thus for coherence and convenience, it may be
best to recognize that personal injury actions based on risks
created by misrepresentation are negligence actions or possibly in
rare cases they are battery actions.41
False statements to the plaintiff. The false statements or
misrepresentations at the core of this chapter differ fundamentally
from those involved in defamation42 or injurious falsehood,43 where
the defendant makes a false statement to third persons that
damages the personal reputation of the plaintiff or the reputation
of the plaintiff’s property or product. The misrepresentations in
this chapter, in contrast, are made to the plaintiff in connection
with explicit or implicit effort to induce the plaintiff’s reliance.
Overview
Intentional misrepresentation: fraud. Intentional
misrepresentation is often called fraud or fraudulent
misrepresentation. Scienter or knowing fraud means the same. The
Restatement Third of Torts new blackletter rule for fraud provides
that “One who fraudulently makes a material misrepresentation of
fact, opinion, intention, or law, for the purpose of inducing another
to act or refrain from acting, is subject to liability for economic loss
caused by the other’s justifiable reliance on the
misrepresentation.”44
Elements: Courts list anywhere from four to nine elements of
the common law claim for such misrepresentations.45 However the
elements are formulated, courts agree in substance that the
plaintiff must prove the following elements:
1119
(1) an intentional misrepresentation
(2) of fact (or something similar to fact)
(3) that proximately causes pecuniary harm46 and
(4) is material,
(5) intended to induce reliance and
(6) does induce reliance by the plaintiff,
(7) which is reasonable or “justifiable.”
Procedural requirements. Procedurally, the plaintiff is usually
required to plead fraud with particularity.47 Many courts add that
fraud must be proved by clear and convincing evidence,48 although
a number say a preponderance of the evidence is sufficient, at least
under some conditions49 and in negligent misrepresentation
claims.50
1120
Intent Required
Traditional rule—scienter—a false representation made
knowingly. In the leading 19th century case, Derry v. Peek,51 Lord
Herschell laid down a rule that has been widely accepted in
American decisions.52 Lord Herschell said:
Fraud is proved when it is shown that a false representation
has been made (1) knowingly [scienter], or (2) without belief
in its truth, or (3) recklessly, careless whether it be true or
false.
The second category really includes both the first and the third. If
the defendant represents a fact knowing it to be false he is making
a representation without belief in the truth of his statement.
Likewise, if he falsely asserts a fact without caring whether it is
true or not he probably, if not certainly, lacks a belief in its truth
and it is entirely fair to treat the case as an intentional fraud.
Knowing falsehood. The common case falls in the first category
—a knowing falsehood. The seller who assures the buyer that the
basement has never been flooded when she knows that it has is
guilty of a knowing falsehood.53 But the key principle is expressed
in the second category—a statement made without belief in its
truth. The language of recklessness in the third category may be
misleading to contemporary Americans who might be led to think
of highly irresponsible driving. The context makes it clear,
however, that the test was not about some extreme form of
negligence, but about a lack of belief in the truth of the
representation.54
Types of intentional misstatements. Under the rules in Derry v.
Peek, the defendant may be liable not only for unadorned lies but
also for half-truths uttered scienter,55 for intentionally misleading
ambiguities,56 and even for misrepresentations of his own present
intention to provide benefits in the future. The defendant may also
fall under a duty to correct a representation that was true when
made but has since become untrue.57 The defendant’s argument
that he misrepresented a fact only because the truth would have
been misleading and that his ultimate aim was to communicate the
real truth by lying about details has deservedly been rejected.58
Scienter in the Restatement Third of Torts: The Restatment
Third of Torts says that a misrepresentation is fraudulent in three
circumstances: if the maker of the misrepresentation “(a) knows or
believes that the matter is not as he represents it to be, (b) knows
that he does not have the confidence in the accuracy of his
representation that
1121
he states or implies, or (c) knows that he does not have the basis
for the representation that he states or implies.”59
Circumstantial evidence and the relevance of negligence. Under
the scienter test, ordinary negligence, such as the defendant’s
failure to ascertain facts with reasonable care or his failure to
formulate misrepresentations more accurately, is not enough for
liability in a claim for intentional misrepresentation.60 On the
other hand, short of the defendant’s own admission, the plaintiff
can often prove knowing falsehood only by circumstantial evidence.
Such evidence must not be merely speculative,61 but if it is strong
enough, it is not only admissible62 but may meet the clear and
convincing standard.63 If the defendant makes a representation
that, given his other knowledge, a reasonable person should know
to be false, the trier of fact may at times be permitted to infer that
he did know it to be false and hence that he had made a knowingly
false statement.64
Conscious ignorance. In line with the rules in Derry v. Peek, the
defendant who is consciously aware that he does not know the
truth of his representation is held responsible for the falsehood.65
A similar idea is that the defendant is subject to liability if he
asserts something of his own knowledge when he does not know
the truth or falsity of the proposition,66 knows he lacks information
necessary to support such a statement,67 or should expect that he
will be understood as implicitly asserting knowledge he does not
have.68 If a fact is the kind that the defendant would be expected to
know, his unqualified assertion of the fact implies that he does
know it, so if the defendant does not have knowledge of the
asserted fact, he can be found to have fraudulent intent. For
example, a seller who assures the buyer that the slip covers are
washable may imply that he has at least some basis for knowing
that their colors will not run and may be liable when they do.69
1122
Defendant knows he does not know. Even if a defendant believes

what he has asserted, he knows he lacks knowledge about the facts
represented. Such a defendant has dishonestly represented at least
one thing, namely the extent of his knowledge. He can readily
avoid liability if he avoids making a statement as one of known
fact, for example, by stating his belief or by indicating the limits of
his knowledge. Liability in such cases is not only recognized, it is
appropriate.
Slipping into negligence or strict liability. The term knowledge
is highly uncertain. Suppose the defendant is in possession of a
surveyor’s map of his property showing ownership of 180 acres and
relies upon it in representing to a potential buyer that the tract
contains such acreage. He has not personally surveyed the area.
Does he “know” the acreage? Or suppose he once knew a fact that
put the acreage in doubt, such as the surveyor’s assumption that a
certain marker was the southwest corner, but that he forgot the
assumption and relied quite honestly upon the map. A well-known
older case imposed liability on similar facts,70 although it would be
hard to say that anything more than negligence was involved.
Intent to deceive. A number of opinions have said that the
defendant must have an intent to deceive. Some statements of the
rule appear to use the term interchangeably with or as a substitute
for the scienter requirement.71 Following this view, the Nebraska
Court concluded that a separate instruction on intent to deceive
was undesirable where an instruction on scienter falsehood was
also given.72 Others appear to state intent to deceive as a separate
element of the claim, to be proved in addition to the elements listed
in Derry v. Peek.73 If intent to deceive is a separate element of the
claim, then it may be difficult or impossible to impose liability
merely on the ground that the defendant knows he does not know
the truth, because a person who knows he does not know may
nevertheless hold a strong belief in his statement and may wholly
lack any intent to deceive. A court that wishes to enforce the
liabilities envisioned in Derry v. Peek could avoid language on
intent to deceive and say instead that the defendant must state a
fact lacking belief in its truth and have an intent to induce reliance
on that statement. Intent to induce reliance is in fact the language
of the Restatement74 and of some opinions.75
1123
C. NEGLIGENT MISREPRESENTATION
Overview
Liability for negligent misrepresentation. Courts fully accept
liability for personal injury or property damage resulting from
negligent misrepresentations. However, negligence is frequently
held to be an insufficient basis for liability in the case of pure or
stand-alone economic harm.76 Most courts hold only when
defendants are under a duty, typically based on a special
relationship or affirmative undertaking, can they be liable for
negligent misrepresentation.77 Where the negligent
misrepresentation action is entertained because a duty of
reasonable care is recognized, that duty supports a less favorable
damages award.78
Key questions. Negligent misrepresentation claims raise two
special problems. First, under what conditions is a duty of care
owed to make one’s representations accurate?79 Second, given that
a duty of care is owed to someone, does that duty run in favor of
some third person who relies on the representation?80
Duty of Care
No duty. No precise formula for determining the existence of a
duty of care has yet been authoritatively stated. Aside from
fiduciaries and those in special relations of confidence, persons who
are neither in the business of supplying information nor have a
pecuniary interest in dealing with the plaintiff ordinarily have no
duty of care and are thus liable only for knowingly false
misrepresentations.81 More broadly, the ordinary commercial
adversary bargainer ordinarily has no duty to use care in
supplying information to those with whom he bargains.82 Likewise,
one giving an ordinary business reference may be under no duty of
care to verify the good qualities he to attributes a job seeker.83
Where the plaintiff and defendant are in a contractual
relationship, the
1124
economic loss rule will force the same result in some cases,
leaving the plaintiff to rely on her contract rights, if any.84
Special duties. A duty of care not to be negligent in supplying
information is the exception, not the rule. The duty of care arises
only when the defendant undertakes such a duty, 85 or when, based
on a special relationship, the plaintiff is led reasonably to expect
reasonable care for her interests.
Defendants retained to exercise reasonable care in providing
information. The clear cases for a duty of care and concomitant
liability for negligent misrepresentations are those in which the
defendant has expressly or implicitly undertaken to exercise care
for the benefit of the plaintiff. That is ordinarily the case when the
defendant is retained for the very purpose of providing accurate
information. In such a case, the relationship of the parties suggests
that the defendant has implicitly undertaken to use reasonable or
professional care. Consequently, their clients can recover for
economic damages inflicted by the negligent misstatements of
lawyers,86 accountants,87 abstractors,88 notaries,89 and others
retained or consulted to determine or certify a given state of facts90
or who assume such duties.91
Statutes. Sometimes statutes prescribe particular duties and
the liability that follows from breach.92 Where a professional is
under a duty of reasonable investigation, his negligence in failing
to discover facts the client is entitled to know is actionable on
1125
the same basis.93 By statute, a real estate agent for the seller
may owe a duty to the buyer to independently substantiate the
information in the listing.94
Fiduciaries.Courts have recognized that a fiduciary,
confidential, or other special relationship between the parties
implies such an undertaking or expectation that the defendant
would exercise reasonable care. Fiduciaries and those in similar
confidential relationships are accordingly liable for negligent
misrepresentation.95 When the facts are peculiarly within the
knowledge of the defendant and inaccessible to the plaintiff,
commercial dealings between the parties must come to a halt
unless the plaintiff can put confidence in reasonable accuracy of
the defendant’s statements. So courts sometimes impose a duty of
care when the defendant had peculiar knowledge or expertise.96
Perhaps in some of these cases, the plaintiff has reposed confidence
in the defendant’s special knowledge and the defendant has
accepted that confidence as a basis for their dealings.97 Similarly,
the particular facts or the words or deeds of the defendant may
warrant the belief that he has undertaken to exercise care in the
plaintiff’s behalf.98 That may be the case even though on some
issues in the transaction the plaintiff and the defendant are
bargaining adversely to each other.99
Duty of care under the Restatement. The Restatement provides
that anyone who has a pecuniary interest in a transaction is
subject to liability for negligently supplying information intended
for the guidance of others.100 As phrased, the Restatement does not
require the defendant to be in the business of supplying
information, only that he supply it either (a) in the course of his
business (whatever that business may be) or (b) in connection with
a transaction in which he is financially interested. The formulation
is
1126
thus more favorable to plaintiffs than the narrowest rules

stated in some cases.101 Unfortunately, the formulation could also
be read to include adversary bargainers who do not undertake to
exercise reasonable care for the other’s informational interests.
The Restatement Third follows the Restatement Second “with
small changes” requiring invited reliance.102
Negligent misrepresentation to a contracting party and the
economic loss rule. Although most courts appear to recognize
negligent misrepresentation as an exception to the economic loss
rule, thus permitting a claim for pure economic loss based on
negligent representations that induce a contract,103 some courts
have said that the economic loss rules bar the plaintiff, or at least a
sophisticated plaintiff’s negligent misrepresentation claim for
commercial harm against a defendant with whom he has a
contractual relationship.104 In that view, if the claim cannot be
asserted on grounds of intentional misrepresentation, it must be
asserted as a contract claim or not at all. The idea is that, between
contracting parties, the contract’s provisions should control. There
is also the idea that if a point covered by a misrepresentation was
important to the plaintiff, that point would have been expressed in
the contract, and if it was not, then the plaintiff should suffer the
risk that the trier of fact will believe the point was not so
important as the plaintiff now claims.105 However, not all
agreements between sophisticated bargainers call for the same
result. A lawyer’s contract with his client, for example, should not
preclude recovery by the client for a negligent misrepresentation
upon which the client relied to her detriment.106 Statutes may
impose duties of care upon adversary bargainers, thus permitting a
tort claim,107 and the defendant’s undertakings
1127
or special relationships with the plaintiff may counsel liability

for negligent misrepresentations.108
D. INNOCENT MISREPRESENTATION
General rule. Most cases impose strict liability for
misrepresentations only in one of two special and limited cases—
when the representation is construed to be a warranty, and when
the plaintiff’s suit is for rescission or rescission-equivalent
damages. These forms of strict liability would ordinarily apply only
to the contracting parties.109 Innocent misrepresentation may also
operate to toll the statute of limitations110 or furnish a defense to a
breach of contract against one who relied on the representation.111
Liability for innocent misrepresentations under warranty theory.
The defendant may be subjected to liability for innocent
misrepresentation causing stand-alone economic harm when the
defendant undertakes to guarantee the truth of the matter
represented; that is, when his representation is a warranty. Where
a warranty is breached, the plaintiff may recover the contract or
loss of bargain measure of damages.112 The most familiar
warranties are the UCC warranties by sellers of goods. The UCC
treats any affirmation of fact relating to the goods sold as a
warranty. Samples, models, and descriptions may have the same
effect.113 In addition, the UCC imposes an implied warranty of
merchantability which requires that the goods must be at least
able to pass without objection in the trade and that they are fit for
the ordinary purposes for which such goods are used.114 If the
seller breaches these warranties, he is liable for the economic harm
suffered as a result, without proof of fraud or even negligence.
Express warranties. The implied warranty described by the
UCC is ordinarily limited to sales of tangible chattels. But an
express warranty is still possible in any kind of transaction. For
instance, the seller of a business may warrant in writing that the
financial records attached to the closing documents are accurate
and may be liable without fault of any kind for breach of such a
warranty.115 And some representations, especially by sellers, may
be construed as warranties under the particular circumstances of
the case.116
1128
Limits on warranty; oral representation. Apart from the implied

warranties in chattel sales, an oral representation is not ordinarily
construed to be a warranty unless the contract specifies it as such.
Even if an oral representation is construed as a contractual
warranty or promise, the parol evidence rule117 and any valid
disclaimer clause118 will likely bar the warranty claim if the
transaction is later reduced to a complete writing. If the oral
representation is conceived as a warranty that amounts to a tort
rather than a contract obligation, the economic loss rule, which
requires courts to focus upon the contractual rights, will probably
bar the claim.119
Liability for innocent misrepresentation in rescission or for
rescission-equivalent damages. Rescission is distinct from the tort
action for damages. Rescission voids the transaction and requires
each party to restore what he received in it. Since the defendant’s
misrepresentation is innocent, neither intentional nor negligent, it
is essentially like a mistake. Given that the defendant and the
plaintiff share that mistake, rescission on the same basis as
mutual mistake is appropriate even though the defendant is not at
fault. Courts traditionally avoid or rescind transactions for
innocent misrepresentations, even though the same court would
reject a tort damages claim for such a misrepresentation. That is to
say, scienter is not required to permit rescission.120 Rescission may
thus be the more advantageous claim for the plaintiff whose
evidence of intent or negligence is weak. In addition, courts may
use the preponderance of evidence standard of proof rather than
the clear and convincing standard.121 For rescission, however, the
plaintiff must act promptly,122 perhaps long before the statute of
limitations has run on the damages claim.
Fact represented must be basic or material. Rescission for
mutual mistake was traditionally limited to mistakes that went to
the very basis of the transaction; a mistake about a material
matter that was not basic or of the essence was insufficient.123 To
the extent that innocent misrepresentation is a special case of
mutual mistake, the same requirement should apply. However,
courts and authorities insist that in spite of the defendant’s
innocence, a misrepresentation that is merely material and not
basic at all will suffice to permit rescission.124 This rule would, at
least in theory, permit the plaintiff
1129
to overthrow a whole deal by rescission merely because of an

erroneous statement about price or costs that could be remedied
fully by a small damages award.125
Contract limitations on liability for innocent representation;
disclaimers. If, by disclaimers or otherwise, the contract indicates
that the defendant will not be liable for mistakes, and the
defendant delivers the performance promised by the contract,
rescission must be denied if the contract is to be honored.126 At
least in the case of formal non-consumer contracts, it would seem
that the plaintiff cannot justifiably rely upon representations
plainly inconsistent with the contract’s own provisions or
disclaimers,127 a result also obtained by excluding evidence of prior
misrepresentations under the parol evidence rule.128 As in the case
of a claimed warranty, a written and fully integrated contract will
determine the rights of the parties.
Limited damages in innocent misrepresentation cases. The
plaintiff deceived by an innocent misrepresentation is one of two
innocent and mistaken parties and at most should recover out of
pocket damages. Such a measure would ordinarily be the financial
equivalent of rescission.129 And since the plaintiff could not rescind
against a third person who is not a party to the contract, she
should not recover damages for innocent misrepresentation against
a third person, either.130 Besides these limitations, some forms of
rescission or rescission-equivalent damages recoveries can have
unjust and undesirable effects that are discussed below in
connection with the topic of remedies.
E. MAJOR ISSUES
§ 43.7 Reliance
Reliance in Fact
Requirement of reliance. A representation is not actionable
unless the plaintiff in fact relies upon it.131 To rely, the plaintiff
must enter a transaction in whole or part because of the
representation.132 For example, the plaintiff who enters into a
transaction
1130
with the defendant does not rely upon the defendant’s

misrepresentation if she enters into the transaction without a
belief in its truth, or doesn’t learn of the misrepresentation until
after the transaction has closed,133 or would have entered the
transaction whether or not the misrepresentation had been
made.134 The plaintiff may rely on several things, but the
defendant’s representation must be one of them.135
Reliance and causation. The requirement of reliance is one of
the requirements of causation in misrepresentation cases—if the
plaintiff has not relied, the misrepresentation has caused no harm.
The requirement of pecuniary harm is the other causal
requirement—if there is no pecuniary harm, the defendant’s
misrepresentation has not caused cognizable damages. Reliance is
thus necessary to show causation, but not sufficient to do so. It
may be that reliance serves other principles of fraud law, too,136
but liability will be imposed only if the defendant’s
misrepresentation causes cognizable harm, tested in part by the
reliance requirement.
Justified Reliance and Comparative Fault
Requirement of justified reliance. According to most courts, bare
reliance is not enough.137 The plaintiff must go on to show that she
justifiably relied.138 This is also the position of the Restatement
Third of Torts.139 Reliance upon the defendant’s material
representations is ordinarily justified unless the plaintiff is on
notice that the statement
1131
is not to be trusted or knows the statement to be false. Reliance

is ordinarily not justifiable if the misrepresentation (a) is not
material; (b) is mere puffing, or states an opinion or judgment of
one without specialized knowledge and that does not imply
assertions of fact; (c) predicts some future course of events over
which the defendant has little or no control; (d) states a legal
conclusion by one without specialized knowledge and who does not
imply assertions of fact. The rule is not a causal rule; reliance of
any kind, justifiable or not, establishes bare causation. Instead, the
justifiable reliance requirement is a limitation on the defendant’s
duty.
Distinguishing justifiable reliance from comparative fault. Some
courts still use the term “reasonable reliance” rather than
“justifiable reliance,” and tend to equate it with contributory
negligence of the plaintiff.140 Although some opinions use the
language loosely, most courts use the term justifiable reliance and
treat that term as something quite different from contributory
negligence or comparative fault.141
Comparative fault as a separate and additional issue in
misrepresentation cases. Courts have applied comparative fault
rules under the objective reasonable person standard to bar or
reduce damages when the defendant’s misrepresentation is merely
negligent.142 Comparative fault rules have generally not been
applied in cases of intentional, fraudulent misrepresentations143 or
to cases of breach of fiduciary duty.144 However, a little authority
suggests that comparative fault of the plaintiff could reduce
damages or even in extreme cases bar recovery against a
fraudulent tortfeasor,145 and a little goes to the other end of the
spectrum by rejecting comparative fault apportionment even in
negligent misrepresentation cases.146 Courts have also limited the
use of the comparative fault defense by professionals like
accountants or auditors to cases in which
1132
the fault of the plaintiff-client contributes to the accountants’

failure to perform their work.147 Professor Klein has argued in
favor of applying comparative fault rules in intentional fraud
cases, not in addition to the justifiable reliance rules, but instead of
them.148
Plaintiff’s failure to investigate—general rule. When the
defendant is guilty of actual scienter fraud and not merely
negligent misrepresentation, the plaintiff is ordinarily justified in
relying upon the defendant’s material representations without any
investigation at all,149 even though those representations come
from an adverse bargainer150 and could be checked by examining
courthouse records.151 Commerce thrives when parties can
conclude transactions without extensive investigation of
representations, which can add significant transaction costs as well
as delay. As Judge Easterbrook said, “Telling the truth is cheap,
while nosing out deceit is expensive. Requiring all lenders,
investors, and so on to investigate every representation made to
them would be extravagantly wasteful….”152 The rule permitting
reliance unless the plaintiff is on notice that would excite
suspicions in a reasonable person thus serves good commercial
policy as well as ordinary considerations of fairness.
§ 43.8 Factual Representations: Opinion, Law and
Prediction
General rules. Courts have said repeatedly that a claim for
misrepresentation lies only for misrepresentation of a fact, or as
they say for emphasis, a past or existing fact.153 Statements that
are merely opinion and statements that are merely promises or
predictions of the future,154 do not qualify as representations of
fact. Puffery, exaggerated and vague statements such as those
praising a product as “first class” or
1133
asserting that a given product will last a lifetime, is one
particular form of the opinion or prediction statement. The rules
against recovery for opinion, puffery, or predictions turn on the
courts’ characterization of the representation and may apply
whether or not the defendant himself purports to be offering
opinion.155
Exceptions. The rule that requires factual representation and
denies liability for opinions and predictions is often broadly stated,
but in fact courts recognize a number of undermining exceptions.
Courts have expressly said that liability may be imposed for false
and material misrepresentations of opinion when the defendant is
a fiduciary,156 when he is a disinterested person or an expert upon
whom the plaintiff can justifiably rely or when he has special
knowledge,157 and when the opinion implies material facts.158 This
is the position of the Restatement Third of Torts.159
Examples. For example, the dealer who says that his goods are
“first class” is puffing his wares but asserting no fact at all.160 The
securities dealer who tells a client that a stock is bound to rise in
the next year is not asserting a fact but predicting the future.161
The auction house that says a painting is beautiful is merely
expressing an opinion. Since none of these assertions explicitly
states a fact and none seem to imply any particular fact, none is
actionable.
Reasons for the rule. The reason most prominently addressed is
that the plaintiff does not rely upon such statements, or if she
relies, she is not justified in doing so. As already suggested,
justified-reliance analysis may be merely one way of considering
whether the defendant is culpable.162 But if it is a separate ground,
the justifications for reliance vary from case to case and do not
support an invariant rule against recovery. For instance, the
relationship of the parties and their relative knowledge may
indicate that reliance is justified. If a court concludes that the
plaintiff’s reliance is justified, it may declare that the defendant’s
statement is one of fact, not opinion.163
The second reason supporting the opinion rule is what courts
sometimes have in mind when they classify a statement as one of
opinion is that the defendant has not exceeded the rules of the
particular kind of bargaining game and hence is not culpable at all.
The buyer’s assertion that $250 is his top-dollar price is to be
understood as a step in the process to getting to $300 or some other
figure, not as a literal factual statement.
1134
The third reason is that many opinion or puffing statements are

not provably false, or rather that they are provably false only in
extreme cases. Here again, the defendant may not be culpable
because he has attempted to persuade but not to deceive about
facts. This, too, varies with the evidence, for as shown below, some
statements are false even when they are taken as approximations.
As these observations suggest, the putative rules about
statements of opinion, prediction and law are really guidelines for
analysis of larger questions—whether the plaintiff could have
justifiably relied, whether the defendant was culpable, and
whether the defendant’s statements could be false in any
meaningful sense. The guidelines are important, but in light of the
“exceptions,” it is probably best not to treat them as bright-line
rules except in extreme cases.
Special types of representation. Special rules have grown up
around a number of types of representations, particularly
statements of value, predictions about the future,
misrepresentation about the defendant’s present intent to perform
(promissory fraud), and implied representations of exisiting fact.
All of these subjects are discussed at greater length elsewhere.164
Scope of third persons entitled to rely on representations: fraud.
In addition, the scope of the defendant’s duty for representations
that influence persons the defendant did not intend to influence is
another significant question. For example, suppose the defendant
misrepresents the condition of his house to A, who passes the
information on to B, who buys the defendant’s house in reliance.
Under the Restatement Second, the maker of a fraudulent
representation was liable not only to those persons he directly
addressed or intended to influence, but also to the entire class of
persons he intends or has reason to expect will rely upon the
representations.165 The Restatement Third, in a slight variation,
says an actor is subject to liability for harm “only if the risk of the
harm was foreseeably increased by the fraud.”166 The Restatement
Third notes that defendant’s liability extend to damages suffered
by “those whose reliance defendant intended to induce” as well as
those “who the defendant had reason to expect” would “receive the
statement and rely on it.”167
Scope of third persons entitled to rely: negligent
misrepresentation. In negligent misrepresentation, the Second
Restatement provided that the defendant is subject to liability if he
intends to supply the information to a small group of which the
plaintiff is a member. He is also liable if he knows the recipient of
the information he provides will pass it on to others in the limited
group of people he expects would be influenced.168 A similar rule is
echoed in the Restatement Third.169 Most courts adopt the
Restatement’s
1135
position or something close to it.170 However, many methods of

resolving the issue are possible and discussed elsewhere in greater
depth.171
Nondisclosure. When nondisclosure without active concealment
is actionable is also a highly contested issue. Traditionally,
affirmative duties of disclosure are imposed only when (1) statutes
so provide; (2) the defendant is in a confidential relationship or
under a fiduciary duty to the plaintiff;172 (3) the defendant has
made a representation that is true at the time it was made but that
becomes untrue or misleading before the bargain is
consummated;173 (4) the statement was untrue at the time it was
made and the defendant later realizes that it has become material
or that the plaintiff is relying upon it;174 or (5) the defendant has
communicated a half-truth, that is, a partial or ambiguous
statement that is misleading unless additional facts are
disclosed,175 as where the seller of a lot discloses that the city has
the right to widen a street bounding the lot but saying nothing
about the fact that the city also has the right to open a street that
will divide the lot in half.176 Some contemporary cases add an
obligation (6) to disclose a material fact when the defendant knows
that the plaintiff is acting under a mistake that is not merely
material to the transaction but “basic” to it and disclosure would
reasonably be expected.177 The Restatement Third suggests a duty
to disclose might arise in any of these situations.178 The critical
questions in nondisclosure cases are whether there is a
1136
duty to disclose and whether the defendant’s silence in the

particular context implied a representation.179
Contract Defenses
Negligent misrepresentation cases. Defendants charged with
misrepresentation often assert that the claim is barred, either by
legal rules such as the parol evidence rule, or by contract
provisions. When the misrepresentation is merely negligent,
contract clauses that exculpate the defendant are usually enforced
and the plaintiff’s misrepresentation claim rejected.180
Scienter fraud. When the plaintiff’s claim is one of scienter
fraud, the traditional approach more or less flatly rejects
exculpatory mechanisms, often in very broad and absolute terms,
frequently saying that fraud vitiates everything it touches,181 or
that enforcing contract clauses that would protect fraud is against
public policy.182 Under these broad traditional principles, the parol
evidence rule cannot be invoked to bar a claim of scienter fraud.183
The result is that the plaintiff can introduce evidence of the
defendant’s alleged representations that are contradicted by the
contract provisions. Likewise, a court may reject a statute of frauds
defense when the defendant is charged with intentional
misrepresentation.184 A merger or integration clause in the
contract merely stipulates that the conditions for invoking the
parol evidence rule are met, that is, that the contract is the
complete agreement of the parties. Since the parol evidence rule
itself does not apply to bar the fraud claim under the traditional
view, the merger clause adds nothing to prevent the fraud claim
from proceeding.185 Consequently, the plaintiff is permitted to
proceed with a scienter fraud claim in spite of a contract clause
that purports to exculpate the defendant.186
1137
Rejecting traditional view. Some courts have created a rule

couched in terms just as absolute as the traditional rule, but
providing for the opposite result. Subject perhaps to a limited
exception,187 this rule appears to say flatly that the defendant can
invoke both the parol evidence rule188 and contract clauses like
those in which the plaintiff acknowledges she had not relied on
certain representations189 to defeat the plaintiff’s claim of fraud in
the inducement. Similarly, the plaintiff might be deemed to waive
the fraud claim by executing a new contract on the same subject
matter after learning of the alleged misrepresentation.190
Remedies
The main remedies. To some extent the remedies available for
misrepresentation depend upon the facts. In general, the remedies
are:
(1) Reformation. When the written document does not
correctly express the parties’ actual agreement because of
fraud or mistake, the plaintiff is entitled to reformation of
the document to make it reflect the real agreement.191
1138
(2) Rescission. When the transaction was induced by

fraud or even by innocent misrepresentation of a basic fact,
the plaintiff may be entitled to rescission, provided
circumstances have not so changed as to make rescission
inequitable.192
(3) Damages. In all cases in which the misrepresentation
is actionable in tort, the plaintiff is entitled to recover
damages instead of rescission, but the measure of damages
may be less favorable to the plaintiff if the basis for liability
is an innocent or negligent representation.193 Apart from
interest, costs, attorney fees, set-offs and other adjustments,
damages may be calculated by looking to the market value of
what the plaintiff received and was promised,194 or by
assessing consequential damages.195
(4) Disgorgement of defendant’s gains—restitution. When
the defendant has gained from a transaction induced by
scienter fraud or breach of fiduciary relationship, the
plaintiff may be entitled to recover, on a theory of
constructive trust or otherwise, the defendant’s gains from
the transaction, even if those gains exceed the plaintiff’s
losses.196
Market-based damages measures. Courts have recognized three
potential measures of damages calculated on the basis of market or
capital values (as distinct from consequential damages).
(1) Benefit of bargain measure. The loss of bargain measure
gives the plaintiff the difference between what she received in
value and the value she would have received had matters been as
represented. If the misrepresentation induces the plaintiff to pay
$5,000 for a car that is worth $5,000 but would have been worth
$10,000 had it been as represented, the plaintiff recovers $5,000
under the loss of bargain rule, giving her a total value of $10,000
(the car plus the damages)—the benefit of the bargain.197
(2) Out of pocket measure. The out of pocket measure allows
the plaintiff to recover the loss she sustained in the transaction but
not her expected gain. Consequential damages aside, that loss is
the difference between what the plaintiff paid in the transaction
and what she received at the time the transaction was completed.
If the misrepresentation induces the plaintiff to pay $5,000 for a
chattel worth only $4,000, the plaintiff recovers $1,000. In effect,
the exchange is equalized.198
(3) “Rescissory damages.” The third potential measure has
been used almost not at all. It calculates the out of pocket measure
at a later date, giving the plaintiff a recovery that resembles the
financial effect of a rescission. It is sometimes called rescissory
damages. If the plaintiff is induced to buy shares of stock for
$100,000 at a
1139
time when their market value is $80,000 and does not get a
judgment until a year later when the market has dropped and the
shares are worth only $50,000, rescissory damages would permit
the plaintiff to recover $50,000, not merely the $20,000 authorized
by the traditional out of pocket measure. That is, the damage
award would put the plaintiff in the same financial position as
rescission on the date of the court’s decree. Rescission itself would
give the plaintiff back the $100,000 purchase price and she would
return stock now worth only $50,000. The damage award would
give the plaintiff $50,000 and let her keep the $50,000 worth of
stock.
Consequential damages. When misrepresentation is actionable
in tort, the plaintiff may recover consequential damages instead of
or, in proper cases,199 in addition to damages based on market
value like the benefit of the bargain measure. Consequential
damages are measured, not by the value of the items promised and
received, but by losses incurred in consequence of the fact that the
plaintiff did not receive what was represented. In a jurisdiction
that permits loss of bargain damages, consequential damages can
include compensation for reliance expenses, even if the transaction
is not completed.200 Thus consequential damages include expenses
incurred or profits lost as a proximate result of the
misrepresentation,201 provided such damages are proved with
reasonable certainty and do not duplicate an out of pocket or loss of
bargain award.202 While market losses may be paper losses that
are never actually realized, consequential damages must either be
realized or more likely than not to be realized in the future.203
Emotional harm damages. Emotional harm damages are not
ordinarily recoverable in a misrepresentation action based on
commercial dealings such as ordinary purchases of property,204
although they might be recovered when misrepresentation is an
operative fact in some other cause of action205 and in cases where
the fraud invades personal rights such as those recognized in
insurance bad faith claims.206 Emotional harm damages might also
be recoverable if the defendant’s misrepresentation also amounted
to the independent tort of intentional infliction of emotional
distress. And where punitive
1140
damages awards are made, they may represent in part

unacknowledged damages for emotional distress.
Punitive damages. Punitive damages are recoverable if the
defendant’s intentional fraud qualifies as sufficiently malicious or
oppressive.207 Statutes, such as consumer protection statutes may
also authorize punitive damages, double or treble damages and
other enhancements of the traditional damage award.208
Damages for intentional misrepresentation. When the
defendant’s fraud is intentional, most courts, including some that
formerly supported the out of pocket measure, now permit the
plaintiff to recover the loss of bargain,209 or say with the
Restatement that the plaintiff can recover under either loss of
bargain or out of pocket, at her option.210 Sometimes courts choose
the measure they deem best to fit the facts.211
Damages for negligent misrepresentation. When the defendant’s
misrepresentation is merely negligent, the Restatement provides
that liability is limited to the out of pocket measure and/or
consequential damages that are not the equivalent of benefit of the
bargain damages.212 Earlier cases of negligence did not discuss the
damages issue or failed to realize that negligence might call for a
milder measure. More recent cases alluding to the issue have
followed or acknowledged the Restatement limitations on
damages.213
Damages for innocent misrepresentations—Rescission-
equivalent damages. The Restatement also provides that the out of
pocket measure is to be applied in the case of innocent
misrepresentations.214 There are, however, two logically distinct
grounds for
1141
imposing liability in innocent misrepresentation cases, and they

do not necessarily suggest the same damages measure. The first is
that the innocent misrepresentation is a true contractual
warranty, that is, an implicit or explicit contractual guarantee.
Some warranties are redressed by a benefit of the bargain measure
of damages, as provided in the UCC.215 Other warranties are not
likely to imply a benefit of the bargain measure of damages, but
where they do, they should be honored as part of the parties’
agreement. Where liability for innocent misrepresentation is
essentially based on breach of a warranty, then, damages may
properly be based on benefit of the bargain in some cases and not
in others.
Innocent misrepresentation as mistake justifying rescission-
equivalent damages. The other ground for recognizing innocent
misrepresentations as actionable is rooted in equitable notions and
in the remedy of rescission. Rescission was granted for honest
mutual mistakes about truly basic—not merely material—
incidents of an agreement. It seemed, therefore, that rescission
should equally be granted when the defendant honestly but
mistakenly asserted a fact and the plaintiff honestly and
mistakenly relied upon it.
Once a court goes that far, it is easy to say that if rescission can
be granted for an honest misrepresentation of basic fact, then the
court could also grant damages that have a substantially similar
impact. Out of pocket damages do have an impact similar to
rescission in many cases. You give me $100 for a dog that I
honestly and reasonably represent to be pedigreed, but it turns out
that I am wrong and the dog is worth only $50. You can rescind the
dog deal and get your $100 back. If you recover out of pocket
damages, you keep the $50 dog and get damages of $50, ending up
with $100 in assets.
Economic entitlement or market-measured damages. Damages
rules in misrepresentation cases can be called economic
entitlement rules. Loss of bargain rules aim to award the plaintiff
damages in a sum that will give her the value she was entitled to
have under the representation or warranty. Specifically, they
attempt to place the plaintiff in the economic position she would
have enjoyed if the representation had been correct. Under the
narrower out of pocket rule, the rules attempt to place the plaintiff
in the position she would have enjoyed if the items she received
had been worth what she paid.216
These rules require the plaintiff to prove a loss, but they do not
require the plaintiff to realize a loss. That is, they do not require
the plaintiff to re-sell the purchased goods at a loss, to pay for
repair or upgrading of the goods, or to suffer any kind of physical
injury as a result of the item’s poor qualities. There is nothing
unusual in the law of damages about using this kind of entitlement
or bookkeeping measure of damages.217 In
1142
fact, the damages measure is like the buyer’s measure of
damages for breach of warranty which is codified in the UCC.218
Example. For example, suppose the seller fraudulently
represents that a house has a new roof in excellent condition when
in fact the roof is rotting and ready to leak at the first rain. With a
roof like that represented, the house would be worth $300,000, but
with the bad roof it is worth only $290,000. The misrepresentation
puts the plaintiff purchaser at risk for rain damage in the future,
but that future risk also creates a present loss in value.219 The
plaintiff’s claim in such a case is a market-based loss for her
economic entitlement. Under the loss of bargain measure of
damages, the plaintiff is entitled to recover $10,000, even though
she has not actually sold at a loss, incurred expenses of repair, or
suffered damage from leaks.220
Consequential damages—when harm must be realized or likely
to be realized. The rule is different when the plaintiff seeks to
recover consequential damages. Consequential damages are not
based on the market value of the very thing to which the plaintiff
is entitled but upon collateral costs incurred or lost profits suffered.
For example, the defendant who misrepresents the condition of the
roof to the home buyer is liable to make the plaintiff’s economic
entitlement good by paying damages based on the difference
between the value of the house with the roof as represented and
the value the plaintiff received. In contrast, though, if the plaintiff
claims that the rains came and the roof leaked, causing rain
damage to the plaintiff’s antique furniture, the claim is for
consequential damages and the plaintiff will be required to prove
that the damages were in fact realized or will more likely than not
be realized in the future.221 Consequential damages claims are also
limited by a series of other rules, requiring rather clear proof as to
causation and damage222 and also requiring the plaintiff to
minimize damages.223
The upshot is that in the ordinary misrepresentation claim (and
in the claim of economic damages for breach of warranty as well),
the buyer-plaintiff can claim economic damages if the property is
worth less than the value she was entitled to; but if she claims
consequential damages, she must prove that the loss has been
realized or will probably be realized in the future by way of
physical harm, repair costs, or sale at a loss.
1143
F. ECONOMIC HARMS IN SPECIAL

RELATIONSHIPS
§ 43.10 Breach of Fiduciary Duty, Bad Faith,
Wrongful Discharge and Economic Duress
Special relationship and fiduciary duties. While some tort
duties are imposed independent of the parties’ relationship, others
are imposed because of the parties’ relationship. For example, a
defendant may owe a special tort duty to a plaintiff because the
defendant is perceived by the courts to be a fiduciary. All the torts
covered in this part of the chapter—bad faith, economic duress,
and wrongful discharge—can involve fragments of the fiduciary
duty. This chapter outlines the gist of the torts, leaving more
exhaustive coverage to other works.224
Who is a fiduciary? Fiduciary issues arise in a wide variety of
factual settings, leading courts to advance inconsistent definitions
of fiduciaries. Broadly speaking, however, fiduciaries are
individuals or corporations who appear to accept, expressly or
impliedly, an obligation to act in a position of trust or confidence
for the benefit of another or who have accepted a status or
relationship understood to entail such an obligation, generating
the beneficiary’s justifiable expectations of loyalty.225 Examples of
fiduciary relationships include formal trustee-beneficiary
relationships, agent-principal relationships, partnerships, and
lawyer-client relationships.
Informal confidential relationships. Fiduciary duties may also
arise in less formal settings when a defendant stands in a
relationship of special trust or confidence to a beneficiary.226 In
determining whether a fiduciary relation exists, courts will
consider evidence bearing on the plaintiff’s reasonable expectations
based on the defendant’s apparent acceptance of the plaintiff’s
confidence and his own fiduciary responsibility.227 Broadly stated,
factors a court would consider include the course of the parties’
prior
1144
relationship over time, the defendant’s evident allegiances, the

inability of the putative beneficiary to protect herself and analogies
to the recognized categories of fiduciaries.228
Arm’s length transactions. Ordinary commercial transactions
are conducted at arm’s length between parties, each of whom
expects the other to serve his own interests. Consequently,
commercial transactions usually involve no formal fiduciary
relationship unless the defendant has special powers of control
over the plaintiff’s rights or if the plaintiff reposes special
confidence in the defendant.229
Limitations on fiduciary duties: contracts and statutes. Some
fiduciary duties can be limited by contract and some cannot. This
accords with the rules for ordinary contracts—some provisions are
unconscionable or against public policy and won’t be enforced. It
also accords with the rules for exculpatory provisions purporting to
limit liability for tort—sometimes they work and sometimes they
do not. In addition, statutes may eliminate some fiduciary duties or
immunize some fiduciaries.230
Fiduciaries: duties owed. Fiduciaries owe to their beneficiaries a
duty of the “utmost” good faith and loyalty.231 Given the duty of
good faith and loyalty, fiduciaries must, with reasonable care,
subordinate their own interests to those of their beneficiaries, keep
their beneficiaries’ information confidential, and disclose all
relevant information they acquire to their beneficiaries.232
Fiduciaries must also avoid conflicts of interest, or at least obtain
the beneficiaries’ knowing consent to the conflict.233
Fiduciaries: breach of duty. The fault required to show breach of
a fiduciary duty depends on the specific duty in issue. Sometimes
the fiduciary duty in issue is essentially a duty of reasonable care,
in which case the fiduciary is liable for inadvertence or
1145
negligence.234 Other cases may call for evidence of bad acts235

or conversely, for strict liability.236
Fiduciary breach as a tort with remedies. A breach of fiduciary
duty, including the kind of fiduciary duty called a confidential
relationship, is a tort.237 In some cases, the facts may also support
a breach of contract theory,238 while in others the claim is viewed
as one in tort only.239 As with other torts, those who aid and abet
violation of fiduciary duties are generally subject to liability for the
breach.240 Thus one who bribes the fiduciary is liable along with
the fiduciary himself.241
Variable remedies. Remedies available for fiduciary breach vary
with the facts.242 Remedies may include relief at law in the form of
compensatory243 and punitive damages244 in appropriate cases.245
Depending on the facts and the claims asserted, available remedies
may also include equitable relief such as injunctions and similar
orders,246 rescission, restitution of payments made to the fiduciary
or disgorgement of
1146
his profits and gains in the breaching transaction247 and any

other equitable remedy the court deems appropriate.248
Disgorgement, meaning recovery of the breachor’s profits or other
gains, may be especially significant when the plaintiff has little or
no loss but the fiduciary has reaped a gain through fiduciary
breach.
Bad faith breach of contract. For a brief period, several cases
supported tort liability for bad faith breach of ordinary commercial
contracts,249 but the tort approach to bad faith breach in those
contracts has now been forsaken in the states that adopted it.250
The general rule today is that the defendant who is guilty of a bad
faith breach of contract—that is, guilty of breaching the implied
covenant of good faith and fair dealing—is generally liable only in
contract, not in tort,251 unless the breach creates some
unreasonable risk of physical harm.252 Tort liability for bad faith
breach is still possible, however, in certain insurance bad faith
cases discussed below.
Third-party insurance cases. Third-party insurance cases are
best illustrated by the ordinary liability insurance claim. The
insurer insures the insured against liability to others, who are
third parties. The insurer then owes the insured a duty to defend if
the insured is sued by someone claiming a tort covered by the
policy. It also owes the insured the duty to pay any legal liability
up to the policy limits. The third-party insurance cases recognize
that an insurer’s breach of contract obligation to its insured will be
a tort under certain circumstances. The tort is usually
characterized as a “bad faith” breach of the insurer’s duty to fairly
secure the benefits of the policy to its insured. The liability insurer
1147
should accept a reasonable opportunity to settle within its

policy limits, or at least act in good faith in deciding whether to
settle.253
First-party insurance cases. First-party insurance cases are
illustrated by fire insurance. The insured pays the insurer
premiums to assure payment in case of fire damage to the
insured’s property. When one or more of the insured persons makes
a claim against the insurer for payment, the case is a first-party
insurance case. The leading case, Gruenberg v. Aetna Insurance
Co., for example, held that a fire insurer who unreasonably and in
bad faith withheld payment of a claim covered by its policy would
be liable, not merely on contractual provisions of the policy, but in
both contract and tort.254
Elements of the first-party bad faith claim. A little authority
requires only proof of negligence as ground for the insurer’s tort
liability.255 But the mainstream core test for judging tortious bad
faith requires the plaintiff to prove that (1) the insurer lacked a
reasonable basis for denying policy benefits to the insured and (2)
that the insurer acted with knowing or reckless disregard of the
inadequate ground for denying the benefits.256
Conduct indirectly affecting payment. Liability in first-party
insurance cases has also been extended to cover conduct that may
indirectly affect nonpayment or delay. For example, the insurer’s
failure to properly and promptly investigate may count as bad faith
or at least evidence of it.257 Other collateral conduct, perhaps some
that does not affect payment, may also reflect bad faith.258
Wrongful discharge: breach of contract. In the absence of
statute, the traditional view holds that employees are employed at
will unless their contract specifies otherwise.259 Thus employers
are free to discharge employees for any reason or no reason. The
discharged employee has a breach of contract action if employment
was for a particular duration or if the contract of employment
permitted discharge only for just cause. At one time it appeared
that courts would treat discharge of an at-will employee as a tort
based on the employer’s breach of an implied covenant of good faith
and fair dealing.260 This is no longer part of the picture. Instead
the claim of tortious wrongful discharge is now commonly
predicated upon a specific and identifiable public policy that
1148
would be undermined if the employer were free to take adverse

action against the employee who acts in accord with that policy.261
Elements of the wrongful discharge claim. The elements of the
public policy claim are essentially adaptations of the elements in
tort claims generally, requiring both causation of harm and fault
on the part of the employer that would tend to undermine public
policy. The precise expressions of these elements have varied. One
type of formula requires the plaintiff to prove that: (1) a clear and
perhaps substantial public policy existed; (2) the policy would be
jeopardized if employees could be freely punished by the employer
for the employee’s actions in accord with that policy; (3) the
employee’s conduct in accord with the public policy caused the
employer to discharge the employee or to take other adverse
employment action, and (4) no overriding justification for the
employer’s action existed.262
What counts as public policy in wrongful discharge claims.
Generally, the public policy must be a “clear mandate” and a
specific one. It must be well-defined and substantial, and it must
be widely perceived so that both employees and employers will
recognize it. Most courts also insist that any public policy must
derive from constitutions or statutes or from administrative
regulations, or sometimes from applicable rules of professional
ethics. The defendant’s liability does not depend upon proof that he
violated the statute. It depends rather upon proof that his actions
in discharging the plaintiff undermined the policy reflected in the
statute.263
Examples. Examples of public policy claims include cases in
which the employer fires the at-will employee for refusing to
engage in illegal conduct, for performing a public duty, for blowing
the whistle on the employer’s illegal conduct, or for asserting her
rights, as where she claims workers’ compensation benefits for an
employment injury or for merely exercising her free speech
rights.264
Economic duress. Threats of physical harm that are made to
extract a contract, gift, conveyance or other disposition of property
rights are usually tortious if the plaintiff, having no reasonable
alternative, accedes to the threats. In such cases, the plaintiff is, at
a minimum, entitled to avoid the transaction and to recover either
what she has transferred under threat or appropriate
compensatory damages.265
Elements of a claim. Courts state the elements of economic
duress in various ways.266 In substance they require that (1) the
victim entered into a transaction that was disproportionate or
unfair (2) as a result of a threat that the courts consider to be
legally
1149
unacceptable on the facts of the particular case and (3) the

victim had no reasonable alternative but to yield to the threat, or,
commonly, that the victim’s free will to choose was overborne by
the threat.267 Some courts have added an ambiguous requirement
that (4) the circumstances eliminating the victim’s reasonable
choices were created by the defendant.268
Remedies. A restitutionary recovery may be available as a claim
independent of tort or as one kind of remedy given in tort cases
where appropriate. Other tort remedies are seldom recoverable for
economic duress. However, a few economic threats may warrant
the full range of tort relief, including any damages that exceed the
defendant’s wrongful gains and that thus exceed restitution. While
only restitutionary remedies would be awarded in most cases,
characterizing economic duress as a tort thus leaves the courts free
to award compensatory consequential damages or even punitive
damages in a proper case.269
________________________________
1 Martin v. Reynolds Metals Co., 224 F.Supp. 978 (D. Or. 1963)
(enjoining such a “libel” on business interests). See also Black & Yates v.
Mahogany Ass’n, 129 F.2d 227 (3d Cir. 1941).
2 The distinction has been long recognized even though it is
imperfectly expressed. See Black & Yates v. Mahogany Ass’n, 129 F.2d 227
(3d Cir. 1941) (a leading case; defamation “is concerned with interests of
personality” while injurious falsehood is concerned “with interests in
property”).
3 E.g., Auvil v. CBS 60 Minutes, 67 F.3d 816 (9th Cir. 1995).
4 E.g., Rorvig v. Douglas, 123 Wash.2d 854, 873 P.2d 492 (1994).
5 Restatement (Second) of Torts § 623A & cmt. a (1977) (false
statements are actionable if they are harmful to the pecuniary interests of
another and the other elements of the tort are proved; for example,
imputations of bad credit that do not also imply a want of integrity).
6 E.g., Peckham v. Hirshfeld, 570 A.2d 663 (R.I. 1990) (option to
purchase recorded); Gregory’s, Inc. v. Haan, 545 N.W.2d 488 (S.D. 1996)
(materialman’s lien filed, jury question on whether requisite fault was
established). Recording a lien or lis pendens is privileged in some states.
See 3 Dobbs, Hayden & Bublick, The Law of Torts § 661 (2d ed. 2011 &
Supp.).
7 See Chamilia, LLC v. Pandora Jewelry, LLC, 2007 WL 2781246
(S.D.N.Y. 2007) (recognizing that a slander of title to patent would be
actionable); Macia v. Microsoft Corp., 152 F.Supp.2d 535 (D. Vt. 2001)
(slander of title to trademark adequately pleaded and not preempted).
8 Menefee v. Columbia Broad. Sys., Inc., 458 Pa. 46, 329 A.2d 216
(1974); see also Neurotron Inc. v. Medical Serv. Ass’n of Pa., Inc., 254 F.3d
444 (3d Cir. 2001) (opining that on the Menefee facts today, the
Pennsylvania Court would require knowing or reckless falsehood). In
Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 70 N.E.2d 401
(1946), the defendant purported to list the top selling songs, but omitted
plaintiff’s songs from list, thereby implying that the plaintiff’s songs did
not sell that well. This disparagement was held actionable but the theory
advanced for liability was not disparagement but prima facie tort.
9 Kings Creations Ltd. v. Conde Nast Publ’ns Inc., 34 A.D.2d 935,
311 N.Y.S.2d 757 (1970).
10 Primiani v. Federal Ins. Co., 203 Fed.Appx. 902 (9th Cir. 2006).
11 E.g., Western Techs., Inc. v. Sverdrup & Parcel, Inc., 739 P.2d
1318 (Ariz. Ct. App. 1986) (judicial proceedings privilege).
12 TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175 (10th Cir. 2007)
(“opinion” statements protected both in defamation and injurious
falsehood); Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d
1110 (9th Cir. 2003) (public figure plaintiff suing for disparagement must
constitutionally prove that defendant’s statement was a knowing or
reckless falsehood); Reliance Ins. Co. v. Shenandoah S., Inc., 81 F.3d 789
(8th Cir. 1996) (“Under Missouri law, defamation or disparagement
actions brought by public figures require a showing of the following
elements: … that the defendant published the statement either with
knowledge of its falsity or with reckless disregard for whether it was true
or false….”); Abernathy & Closther v. Buffalo Broad. Co., Inc., 176 A.D.2d
300, 574 N.Y.S.2d 568 (1991) (constitutional “clear and convincing
evidence” standard applies to public figure’s product disparagement
claim).
13 U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898
F.2d 914 (3d Cir. 1990).
14 In libel cases, earlier common law and to some extent
contemporary law as well, held that, with limited exceptions, “falsity,
malice, and injury are presumed and proof of these elements is not
necessary.” Kiesau v. Bantz, 686 N.W.2d 164 (Iowa 2004).
15 See Auvil v. CBS 60 Minutes, 67 F.3d 816 (9th Cir. 1995).
16 Blatty v. New York Times Co., 42 Cal.3d 1033, 728 P.2d 1177, 232
Cal.Rptr. 542 (1987); Sanderson v. Indiana Soft Water Servs., Inc., 2004
WL 1784755 (S.D. Ind. 2004) (“But as under the law of defamation, a
statement is not actionable unless it is clear from its content and context
that it refers specifically to the plaintiff’s products.”).
17 Restatement (Second) of Torts § 623A(a) (1977).
18 E.g., Gregory’s, Inc. v. Haan, 545 N.W.2d 488 (S.D. 1996).
19 E.g., Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330
F.3d 1110 (9th Cir. 2003).
20 See 3 Dobbs, Hayden & Bublick, The Law of Torts ch. 43 (2d ed.
2011 & Supp.).
21 See 18 U.S.C.A. §§ 1961–64. Although the statute requires proof
that the defendant engaged in a pattern of racketeering activity, that term
is defined broadly. A number of common if shady and dishonest business
dealings may be included if a “pattern” of illegal activity can be found. See,
e.g., Corley v. Rosewood Care Ctr., Inc. of Peoria, 142 F.3d 1041 (7th Cir.
1998) (use of mails in furtherance of scheme to defraud in a kind of bait
and switch operation).
22 Of many statutes, 15 U.S.C.A. § 78j is perhaps the most used and
best known. See generally 7 & 8 Louis Loss & Joel Seligman, Securities
Regulation, Chs. 9 & 10 (fraud and manipulation) (3d ed. 1991 & Supps.).
One federal statute, the Securities Litigation Uniform Standards Act of
1998 (SLUSA), 15 U.S.C.A. § 78bb (f), preempted many class actions
brought as state-law securities fraud claims, forcing them into federal
court and then requiring their dismissal. See 1 Thomas Lee Hazen,
Treatise on The Law of Securities Regulation § 7.17 (4th ed. 2002).
23 Some consumer protection law is public law, but most state
statutes recognize a private right of action for misleading or deceptive
practices. See Restatement of Unfair Competition § 1, Reporter’s Note
(listing all state statutes).
24 Anyone who knowingly presents a false claim against the United
States is criminally liable and also liable for a civil fine and treble
damages. 18 U.S.C.A. § 287 & 31 U.S.C.A. § 729.
25 Cf. Wasson v. Schubert, 964 S.W.2d 520 (Mo. Ct. App. 1998)
(similar).
26 Cf. Meade v. Cedarapids, Inc., 164 F.3d 1218 (9th Cir. 1999)
(similar); see Richard P. Perna, Deceitful Employers: Intentional
Misrepresentation in Hiring and the Employment-at-Will Doctrine, 54 U.
Kan. L. Rev. 587 (2006) (discussing both employer and employee fraud).
27 Cf. Voilas v. General Motors Corp., 170 F.3d 367 (3d Cir. 1999)
(similar claim not preempted by labor laws).
28 Cf. Lubin v. Johnson, 169 Ariz. 464, 820 P.2d 328 (1991) (similar).
29 Cf. Engalla v. Permanente Med. Group, Inc., 15 Cal.4th 951, 938
P.2d 903, 64 Cal.Rptr.2d 843 (1997) (similar).
30 Dier v. Peters, 815 N.W.2d 1 (Iowa 2012) (mother of a child
intentionally misrepresented that the plaintiff was the child’s father,
inducing him to pay money to them in reliance on her misrepresentations;
court found that the public policy of “providing a remedy for fraud”
outweighed any policy concerns to the contrary); Hodge v. Craig, 382
S.W.3d 325 (Tenn. 2012) (allowing ex-husband to recover damages in the
form of child support, medical expenses, and insurance payments he had
made after his ex-wife’s intentional misrepresentations that he was the
child’s biological father).
31 E.g., Wells v. Schuster-Hax Nat’l Bank, 23 Colo. 534, 48 P. 809
(1897) (conveyance without consideration that could defeat creditors’
rights would be fraud in law though there was no specific
misrepresentation or even intent); Gibson v. Gibson, 102 Wis. 501, 78
N.W. 917 (1899) (equitable suit to alter record title).
32 See Barger v. McCoy Hillard & Parks, 346 N.C. 650, 488 S.E.2d
215 (1997) (defining constructive fraud); Stanley v. Luse, 36 Or. 25, 58 P.
75 (1899) (self-dealing by fiduciary as constructive fraud).
33 In the lore of constructive fraud in some jurisdictions, the term
may even be applied to cases of actual fraud, as where the defendant
misleads by active concealment of material facts or by stating misleading
half-truths. See Specialty Beverages, LLC v. Pabst Brewing Co., 537 F.3d
1165 (10th Cir. 2008) (Oklahoma law).
34 See, e.g., Pugh’s IGA, Inc. v. Super Food Servs., Inc., 531 N.E.2d
1194 (Ind. Ct. App. 1988) (discussing but not applying constructive fraud
rules in an ordinary damages claim).
35 Cf. Randi W. v. Muroc Joint Unified Sch. Dist., 14 Cal.4th 1066,
929 P.2d 582, 60 Cal.Rptr.2d 263 (1997) (claim that school failed to qualify
its positive recommendation for teacher who allegedly had been subject of
previous complaints of sexual impropriety with students; in his new job,
teacher allegedly molested a middle school student); cf. Estate of Shinaul
v. State Dep’t of Soc. & Health Servs., 980 P.2d 800 (Wash. Ct. App. 1999)
(social worker allegedly gave misleading information leading guardians to
place child in allegedly unsafe institution where he met his death).
36 See Molien v. Kaiser Found. Hosps., 27 Cal.3d 916, 167 Cal.Rptr.
831, 616 P.2d 813, 16 A.L.R. 4th 518 (1980), modified, Burgess v. Superior
Court, 2 Cal.4th 1064, 831 P.2d 1197, 9 Cal.Rptr.2d 615 (1992).
37 See Stephen K. v. Roni L., 105 Cal.App. 3d 640, 164 Cal.Rptr. 618
(1980) (liability denied); Pamela P. v. Frank S., 110 Misc.2d 978, 443
N.Y.S.2d 343 (1981) (indirectly recognized); Conley v. Romeri, 60 Mass.
App. Ct. 799, 806 N.E.2d 933 (2004) (claim denied).
38 See Restatement (Second) of Torts § 311 (1965).
39 E.g., Behr v. Richmond, 193 Cal.App.4th 517, 123 Cal.Rptr.3d 97
(4th Dist. 2011) (infected boyfriend who negligently and fraudulently
concealed from plaintiff-girlfriend the risk of her contracting herpes; court
found evidence sufficient to support finding that plaintiff’s reliance on his
representations was reasonable).
40 Courts may use the term misrepresentation in describing liability
for personal injury but at the same time use the language of ordinary
negligence law in describing the basis for liability. See Roe v. Catholic
Charities of the Diocese of Springfield, 225 Ill.App.3d 519, 588 N.E.2d 354,
167 Ill.Dec. 713 (1992) (recognizing negligence action against adoption
agency that did not disclose child’s health problems); R.A.P. v. B.J.P., 428
N.W.2d 103, 109 (Minn. Ct. App.1988) (“people who know that they have
genital herpes have a legal duty to take reasonable care to prevent the
disease from spreading”).
41 See Doe v. Dilling, 228 Ill.2d 324, 888 N.E.2d 24, 320 Ill.Dec. 807
(2008) (defendants, parents of the plaintiff’s lover, knew but failed to
disclose that her lover had HIV and then AIDS; the court did not reject
claims based on negligence or battery).
42 See Chapter 37.
43 See Chapter 43.
44 Restatement (Third) of Torts: Liability for Economic Harm § 9
(2014).
45 Restatement (Second) of Torts § 525 (1977) requires a (1)
fraudulent misrepresentation (2) of fact, opinion, intention, or law, (3) for
the purpose of inducing reliance, and (4) justifiable reliance. Similar
formulations are found in some cases. E.g., Walker v. Percy, 142 N.H. 345,
702 A.2d 313 (1997). Courts often add that the misrepresentation must be
material, e.g., D’Ambrosio v. Colonnade Council of Unit Owners, 717 A.2d
356 (1998), but justifiable reliance may be regarded as encompassing
materiality. The legal requirements imposed by this list of elements are
not changed if the elements are broken down into more detailed parts. For
example, the single element of fraudulent representation can be expressed
as three elements—(i) a representation, (ii) which is false in fact, and (iii)
known to be false. By a process like this, Arizona comes up with nine
elements, see e.g., Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514
(1966), but they appear to demand essentially the same proof as required
by the Restatement’s more economical four elements.
46 The harm typically must be pecuniary in nature. E.g., Ironworkers
Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, R.I.C.O. Bus.
Disp. Guide (CCH) P 12026 (11th Cir. 2011) (under applicable laws of the
three states involved, “without allegations of injury, a claim is not
remediable when based either on common law fraud, or negligent
misrepresentation”; here, the plaintiffs failed to allege any economic injury
arising from pharmaceutical manufacturer’s alleged misrepresentations
about the safety and effectiveness of their drugs); Bicknese v. Sutula, 260
Wis. 2d 713, 660 N.W.2d 289 (2004). Illinois courts have limited the tort of
fraudulent misrepresentation to commercial or business settings. See
Bonhomme v. St. James, 361 Ill.Dec. 1, 970 N.E.2d 1 (2012) (plaintiff’s
purely personal relationships “is simply not something the state regulates
or in which the state possesses any kind of valid public policy interest”).
47 Fed. R. Civ. Proc. 9(b); Ashworth v. Albers Med., Inc., 410
F.Supp.2d 471 (S.D. W.Va. 2005) (plaintiff must plead time, place, and
contents of the false representation, the identity of the person making the
misrepresentation, and what defendant obtained by the fraud); Hobson v.
American Cast Iron Pipe Co., 690 So.2d 341 (Ala. 1997); Hames v.
Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998).
48 In re Marriage of Cutler, 588 N.W.2d 425 (Iowa 1999); Richmond
Metro. Auth. v. McDevitt Street Bovis, Inc., 256 Va. 553, 507 S.E.2d 344
(1998). Where heightened standard is imposed, courts usually say the
standard applies to all elements of the fraud claim, but some courts have
reasonably said that it does not apply to proof of damages. See Kilduff v.
Adams, Inc., 219 Conn. 314, 593 A.2d 478 (1991). In class actions for
securities laws violations, federal law now displaces state law in some
instances, forcing it into federal court, where it may be dismissed or face
stern proof demands requiring the plaintiffs to plead facts that warrant a
“strong” inference of scienter fault. 15 U.S.C.A. § 78u–4 (b)(2). Some
authority treats this requirement as more demanding than the clear and
convincing evidence standard and as displacing the jury’s role in deciding
inferences as well. See Gompper v. Visz, Inc., 298 F.3d 893 (9th Cir. 2002).
But see Pirraglia v. Novell, Inc., 339 F.3d 1182 (10th Cir. 2003).
49 See Huffman v. Poore, 6 Neb.App. 43, 569 N.W.2d 549 (1997)
(preponderance sufficient in actions at law for damages, though not for
suits in equity); Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963)
(preponderance sufficient unless the misrepresentation claimed would
contradict a solemn writing); In re Estate of Kindsfather, 326 Mont. 192,
108 P.3d 487 (2005).
50 McLaughlin v. Williams, 379 S.C. 451, 665 S.E.2d 667 (Ct. App.
2008); Dewey v. Wentland, 38 P.3d 402 (Wyo. 2002).
51 Derry v. Peek, 14 App.Cas. 337 (H.L. 1889) (judgment of Lord
Herschell).
52 E.g., Kimber v. Young, 137 F. 744 (8th Cir. 1905). Many opinions
reflect Derry v. Peek in stating the elements of fraud even when the case is
not cited.
53 Nielsen v. Adams, 223 Neb. 262, 388 N.W.2d 840 (1986).
54 Modern courts recognize this point. See, e.g., Davis v. McGuigan,
325 S.W.3d 149 (Tenn. 2010) (equating “recklessness” with knowledge that
a representation was false or without a belief that the representation was
true, finding genuine issue of material fact on the issue).
55 E.g., Junius Constr. Co. v. Cohen, 257 N.Y. 393, 178 N.E. 672
(1931).
57 See id. § 535.
58 Bangert Bros. Constr. Co. v. Kiewit W. Co., 310 F.3d 1278 (10th
Cir. 2002) (rejecting the truth-through-lies argument on the ground that
the fact misrepresented, not the ultimate conclusion to which it led, was
the material fact); Nielsen v. Adams, 223 Neb. 262, 388 N.W.2d 840 (1986)
(rejecting the argument on the ground that knowing falsehood and intent
to induce reliance are required, but not intent to deceive).
(2014).
60 Johnson v. Wysocki, 990 N.E.2d 456 (Ind. 2013) (“should have
known” standard is insufficient for fraud); VF Corp. v. Wrexham Aviation
Corp.,350 Md. 693, 704, 715 A.2d 188, 193 (1998) (“Negligence or
misjudgment, however gross, does not satisfy the knowledge element”).
61 Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813
(1997).
62 See Edwards v. Travelers Ins. of Hartford, Conn., 563 F.2d 105
(6th Cir. 1977).
63 Clark v. Iowa Dep’t of Revenue & Fin., 644 N.W.2d 310 (Iowa
2002); Kuo Feng Corp. v. Ma, 248 A.D.2d 168, 669 N.Y.S.2d 575 (1998).
64 See Stromberger v. 3M Co., 990 F.2d 974, 978 (7th Cir. 1993) (“No
doubt some statements are so outlandish that no one in his right mind
could think them true when he said them, and then intent to defraud could
be inferred from the statement itself”); Ultramares Corp. v. Touche, 255
N.Y. 170, 191, 174 N.E. 441, 449 (1931) (“negligence or blindness, even
when not equivalent to fraud, is nonetheless evidence to sustain an
inference of fraud”); Restatement (Second) of Torts § 526 cmt. d (1977).
65 Receivables Purchasing Co., Inc. v. Engineering & Prof’l Servs.,
Inc., 510 F.3d 840, 843 (8th Cir. 2008) (“knowingly ignorant
misrepresentations”); Borcherding v. Anderson Remodeling Co., Inc., 253
Ill. App. 3d 655, 660, 705, 624 N.E.2d 887, 893 (1993) (statement made “in
culpable ignorance of its truth or falsity”); Gross v. Sussex Inc., 332 Md.
247, 630 A.2d 1156 (1993) (knowingly or in conscious disregard of its
truth).
66 Florenzano v. Olson, 387 N.W.2d 168 (Minn. 1986).
67 Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Corp., 129 P.3d
905, 914 n.21 (Alaska 2006) (scienter requirement is met when the
defendant “knows that he does not have the basis for his representation
that he states or implies”); see Page Keeton, Fraud: The Necessity for an
Intent to Deceive, 5 UCLA L. Rev. 583, 592 (1958) (defendant who makes
an unqualified representation of fact realizing information was inadequate
to justify a feeling of certainty about it).
68 See Schlossman’s, Inc. v. Niewinski, 12 N.J. Super. 500, 507–08,
79 A.2d 870, 874 (1951).
69 Id. (rescission of the contract).
70 Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N.E. 168
(1888).
71 Johnson v. University Health Servs., Inc., 161 F.3d 1334 (11th
Cir. 1998); Kimber v. Young, 137 F. 744 (8th Cir. 1905); Marten’s
Chevrolet, Inc. v. Seney, 292 Md. 328, 439 A.2d 534 (1982). The structure
of the rule as envisioned in Prosser and Keeton § 107 is that the rule
requires intent to deceive, which is then proved by proving a knowing
falsehood, or a lack of belief in the statement, or a statement made in
conscious ignorance.
72 Nielsen v. Adams, 223 Neb. 262, 388 N.W.2d 840 (1986).
73 Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559,
374 S.E.2d 385 (1988). A single jurisdiction may sometimes state that,
besides scienter, intent to deceive is required, while at other times may
state that intent to induce reliance is the test. Compare In re Estate of
McKenney, 953 A.2d 336 (D.C. 2008) (intent to deceive), with Media Gen.,
Inc. v. Tomlin, 532 F.3d 854 (D.C. Cir. 2008) (District of Columbia law,
intent to induce reliance).
74 Restatement (Second) of Torts § 525 (1977) (requiring a “purpose”
of inducing reliance); cf. id. § 531 (“reason to expect” reliance).
75 Seybert v. Cominco Alaska Exploration, 182 P.3d 1079, 1094
(Alaska 2008) (elements include scienter and intent to induce reliance);
Foreman v. AS Mid-America, Inc., 255 Neb. 323, 586 N.W.2d 290 (1998);
Marchant v. Cook, 967 P.2d 551 (Wyo. 1998).
77 See e.g., St. Joseph’s Hosp. & Med. Ctr. v. Reserve Life Ins. Co.,
154 Ariz. 307, 742 P.2d 808 (1987); Small v. Fritz Cos., Inc., 30 Cal.4th
167, 65 P.3d 1255 (2003); Barton v. City of Bristol, 291 Conn. 84, 967 A.2d
482 (2009); Holmes v. Grubman, 286 Ga. 636, 691 S.E.2d 196; Rinehart v.
Morton Bldgs., Inc., 305 P.3d 622 (2013); D.R. Strong Consulting Eng’rs,
Inc., 312 P.3d 620 (2013); Sturm v. Peoples Trust & Sav. Bank, 713
N.W.2d 1 (Iowa 2006) (limited to representations inducing dealings with
third parties); Gossels v. Fleet Nat’l Bank, 453 Mass. 366, 902 N.E.2d 370
(2009); Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359 (Minn.
2009); Avanta Fed. Credit Union v. Shupak, 354 Mont. 372, 223 P.3d 863
(2009); Heard v. City of New York, 82 N.Y.2d 66, 623 N.E.2d 541 (1993);
78 Restatement (Second) of Torts § 552B (1977) (excluding benefit of
the bargain damages). It is also possible that the plaintiff’s comparative
fault will reduce the award in negligent misrepresentation cases when it
would not do so in intentional fraud cases. See 3 Dobbs, Hayden &
2011 & Supp.).
80 Id. § 681.
81 Restatement (Second) of Torts § 552(1) (1979) (providing for a
duty of care if defendant has pecuniary interest in transaction, not
requiring defendant be in the business of supplying the information).
82 Badger Pharmacal, Inc. v. Colgate-Palmolive Co., 1 F.3d 621 (7th
Cir. 1993) (the plaintiff has “not persuaded us that, in the context of
business dealings between sophisticated parties, Wisconsin law would
impose a duty on each not to utter words negligently”); Sain v. Cedar
Rapids Cmty. Sch. Dist., 626 N.W.2d 115 (Iowa 2001) (duty arises only
when defendant is in the business of supplying information); Onita Pac.
Corp. v. Trustees of Bronson, 315 Or. 149, 843 P.2d 890 (1992); see Alfred
Hill, Damages for Innocent Misrepresentation, 73 Colum. L. Rev. 679,
685–88 (1973).
83 Hale v. George A. Hormel & Co., 48 Cal.App.3d 73, 121 Cal.Rptr.
144 (1975) (recommending a seller of goods); Richland Sch. Dist. v. Mabton
Sch. Dist., 111 Wash. App. 377, 45 P.3d 580 (2002) (school district gave
laudatory recommendations for an employee, omitting to mention that he
had been charged with child molesting).
84 See Alejandre v. Bull, 159 Wash.2d 674, 153 P.3d 864 (2007).
85 See Krahmer v. Christie’s Inc., 903 A.2d 773 (Del. Ch. 2006) (“A
plaintiff may only recover for negligent misrepresentation where there is a
fiduciary or special relationship between the parties”; there was no special
relation between buyer of painting and auction house); Cooper v.
Berkshire Life Ins. Co., 148 Md.App. 41, 810 A.2d 1045 (2002) (“the duty
to furnish the correct information arises when the relationship is of the
nature that one party has the right to rely upon the other for information.
The precise degree of the relationship that must exist before recovery will
be allowed is a question that defies generalization”); Loosli v. City of
Salem, 345 Or. 303, 194 P.3d 623 (2008) (statute imposed duty on city only
for benefit of public, not for guidance of citizen who suffered economic loss
when the city negligently approved business location forbidden by city’s
zoning rules, forcing the citizen to move afterward); Stillwater Condo.
Ass’n v. Town of Salem, 140 N.H. 505, 668 A.2d 38 (1995) (no special
relationship existed and defendant did not undertake a duty).
86 When the claim is asserted by the client, it may be conceptualized
as one for “malpractice” rather than “misrepresentation,” even though
based upon a misstatement of fact. Mecca v. Shang, 685 N.Y.S.2d 458
(App. Div. 1999) (negligent misrepresentation claim should have been
dismissed as it was but one form of the lawyer malpractice claim and
duplicative); Safeway Managing Gen. Agency, Inc. v. Clark & Gamble, 985
S.W.2d 166 (Tex. App. 1998) (since insurer who retained attorneys to
defend insured was not “client,” the claim was not one for malpractice but
for negligent misrepresentation). Lawyers may be liable to non-clients for
negligent “misrepresentation.”
87 E.g., Cordial v. Ernst & Young, 199 W.Va. 119, 483 S.E.2d 248
(1996).
88 Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974).
89 Keck v. Keck, 54 OhioApp.2d 128, 375 N.E.2d 1256 (1977).
90 Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La. 1993)
(termite inspector’s certificate); Glanzer v. Shepard, 233 N.Y. 236, 135
N.E. 275 (1922) (public weighmaster certificate of weight in commercial
transaction); Aesoph v. Kusser, 498 N.W.2d 654 (S.D. 1993) (insurance
agent representing that coverage was not available).
91 Culp Constr. Co. v. Buildmart Mall, 795 P.2d 650 (Utah 1990)
(title company may have assumed duty of abstractor).
92 E.g., Cal. Gov’t. Code § 8214 (liability of notary).
93 Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922); see
Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259 (Mo. Ct. App.
2002) (auditor’s failure to discover lack of appropriate internal controls
that would have prevented embezzlement losses).
94 See Fisher v. Kahler, 641 N.W.2d 122 (S.D. 2002).
95 See McAuley v. Int’l Bus. Mach. Corp., 165 F.3d 1038 (6th Cir.
1999) (ERISA fiduciary’s duties); Kimmell v. Schaefer, 89 N.Y.2d 257, 675
N.E.2d 450, 652 N.Y.S.2d 715 (1996) (even though defendant was to gain a
commission if the plaintiff invested in project, defendant’s expertise and
special relation sufficed to require reasonable care).
96 See, e.g., Fine Host Corp. Sec. Litig., 25 F.Supp.2d 61 (D. Conn.
1998) (emphasizing unique knowledge or specialized expertise); Colonial
Imports, Inc. v. Carlton Nw., Inc., 121 Wash.2d 726, 853 P.2d 913 (1993);
cf. Westby v. Gorsuch, 112 Wash.App. 558, 50 P.3d 284 (2002) (trial court
not in error in submitting negligent misrepresentation claim as well as
fraud claim against knowledgeable buyer-dealer who told seller the item in
question wasn’t worth even $500 when in fact it later sold for over
$100,000; no actual discussion of duty).
97 Confidence reposed and accepted establishes a confidential
relationship and a duty of care. See City of Atascadero v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 68 Cal.App.4th 445, 80 Cal.Rptr.2d 329
(1999).
98 Cf. Lacher v. Superior Court, 230 Cal.App.3d 1038, 281 Cal.Rptr.
640 (1991) (developer, to obtain neighbor’s support for development,
assured neighbors that buildings would be one story and not block views,
public policy imposed duty of care in making representations).
99 See Jackson v. State, 287 Mont. 473, 956 P.2d 35 (1998) (state
revealing some information about prospective adoptee in state’s custody
was undertaking duty to prospective adopting family to exercise care in its
representations). Along these lines, cases have held or assumed that a
prospective employer, inducing a recruit to accept a job, is under a duty of
care and hence liable for negligent misrepresentations. E.g., Van Buren v.
Pima Cmty. Coll. Dist., 113 Ariz. 85, 546 P.2d 821 (1976); Pollmann v.
Belle Plaine Livestock Auction, Inc., 567 N.W.2d 405 (Iowa 1997); Griesi v.
Atlantic Gen. Hosp. Corp., 360 Md. 1, 756 A.2d 548 (2000); cf. Craine v.
Trinity Coll., 259 Conn. 625, 791 A.2d 518 (2002) (college advising tenure-
track professor to continue along lines she was following could be found to
be a negligent representation that if she did so, tenure would follow); but
cf. Conway v. Pacific Univ., 324 Or. 231, 924 P.2d 818 (1996) (university
owed no duty of care in its representations about tenure in the absence of
some relationship beyond employment).
101 Excavation Technologies, Inc. v. Columbia Gas Co. of Pa., 985 A.2d
840 (Pa. 2009) (gas company was under a statutory duty to mark location
of its underground lines and mis-marked some; when contractor struck
lines, causing him expensive delay, court held gas company was not in the
business of providing information and denied liability, also saying that the
economic loss rule applied to bar the claim in such a case).
(2012).
103 See, e.g., Level 3 Commc’ns, LLC v. Liebert Corp., 535 F.3d 1146
(10th Cir 2008) (distinguishing BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d
66 (Colo.2004), where the contract created the specific duty to
communicate certain information so that it was appropriate to limit the
plaintiff to its contract remedy); In re TJX Cos. Retail Sec. Breach Litig.,
564 F.3d 489 (1st Cir. 2009) (upholding negligent misrepresentation claim
against a motion to dismiss, while dismissing plain negligence claim on
the same facts under the economic loss rule); Van Sickle Constr. Co. v.
Wachovia Commercial Mortg., Inc., 783 N.W.2d 684 (Iowa 2010)
(“Application of the economic loss doctrine in negligent misrepresentation
cases would essentially eliminate the tort.”); Terracon Consultants W., Inc.
v. Mandalay Resort Group, 206 P.3d 81, 88 (Nev. 2009) (“negligent
misrepresentation is a special financial harm claim for which tort recovery
is permitted because without such liability the law would not exert
significant financial pressures to avoid such negligence”); Plourde Sand &
Gravel v. JGI E., Inc., 154 N.H. 791, 917 A.2d 1250, 1254 (2007) (“we
recognize that a cause of action in tort for economic damages may be
maintained under the ‘special relationship’ or negligent misrepresentation
exceptions”). On the economic loss rules, see Chapters 41 & 42 and 3
104 E.g., Apollo Group, Inc. v. Avnet, Inc., 58 F.3d 477 (9th Cir. 1995)
(forecasting Arizona law); Borish v. Russell, 230 P.3d 646 (Wash. Ct. App.
2010) (negligent misrepresentation claim against contracting party barred
by economic loss rule); Excel Constr., Inc. v. HKM Eng’g, Inc., 228 P.3d 40
(Wyo. 2010) (“While a party may be entitled to maintain a claim for
intentional misrepresentation or fraud … notwithstanding the economic
loss rule … Excel did not present such a claim … and Excel’s claim for
negligent misrepresentation is barred.”).
105 Cf. All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862 (7th Cir.
1999) (discussing the concerns).
106 Collins v. Reynard, 154 Ill.2d 48, 607 N.E.2d 1185 (1992).
107 See Beaux v. Jacob, 30 P.3d 90 (Alaska 2001) (liability for
negligent failure to communicate in responding to required real estate
transfer disclosure form).
109 See Restatement (Second) of Torts § 552C (1977).
110 See University of Pittsburgh v. Townsend, 542 F.3d 513 (6th Cir.
2008) (Pennsylvania law, calling it “fraud and concealment,” but
nevertheless recognizing that unintended “concealment” can stop the
defendant from pleading the statute of limitations).
111 E.g., Jocelyn Canyon, Inc. v. Lentjes, 292 Ga. App. 608, 664 S.E.2d
908 (2008).
112 Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978); as to damages
measures, see 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 687–92 (2d
ed. 2011 & Supp.).
113 UCC § 2–313. An affirmation that is mere puffery, however, is not
a warranty, though some “opinion” type statements may fall into the
warranty rather than the puffery category. See David A. Hoffman, The
Best Puffery Article Ever, 91 Iowa L. Rev. 1395, 1411–15 (2006).
114 UCC § 2–314.
115 VF Corp. v. Wrexham Aviation Corp., 350 Md. 693, 715 A.2d 188
(1998).
116 Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978) (homebuilder
assertions); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 232 A.2d
307 (1967) (real estate developer sold a house and lot with a plot plan
showing a 20-foot side yard that complied with zoning regulations; the
parties later discovered that the house was so close to the next lot that to
enter the house required a trespass; the representation was construed as a
warranty). At one time, Alaska imposed strict liability for innocent
misrepresentations by real estate sellers, but that has been changed by
statute. See Amyot v. Luchini, 932 P.2d 244 (Alaska 1997).
117 Betaco, Inc. v. Cessna Aircraft Co., 103 F.3d 1281 (7th Cir. 1996)
(if writing fully integrates agreement, parol evidence of other terms is not
admissible; disclaimer of warranty and merger clause are among factors
indicating integration); Martin & Martin, Inc. v. Bradley Enters., Inc., 256
Va. 288, 504 S.E.2d 849 (1998) (enforcing merger clause).
118 Gibson v. Capano, 241 Conn. 725, 699 A.2d 68 (1997).
119 Apollo Group, Inc. v. Avnet, Inc., 58 F.3d 477 (9th Cir. 1995).
120 E.g., In re Estate of McKenney, 953 A.2d 336, 342 (D.C. 2008) (a
“party to a contract can seek rescission relying on a material
misrepresentation without establishing fraud…. Fraud need not be proven
to rescind a contract; instead, a party must only show that the
misrepresentation ‘would have been likely to have induced a reasonable
recipient to make the contract.’ ”); Bortz v. Noon, 729 A.2d 555 (Pa. 1999)
(recognizing rescission for innocent misrepresentations but rejecting
liability in damages).
121 See Estate of McKenney, 953 A.2d 336, 342 (D.C. 2008).
122 Knudsen v. Jensen, 521 N.W.2d 415 (S.D. 1994).
123 See 2 Dan B. Dobbs, Law of Remedies § 11.3 (2d ed. 1993);
Restatement (Second) of Contracts § 152 (1981).
124 Hyler v. Garner, 548 N.W.2d 864 (Iowa 1996); French Energy, Inc.
v. Alexander, 818 P.2d 1234, 1238 (Okla. 1991) (“Where innocent
misrepresentation or non-disclosure is the sole ground for restitution,
restitution is granted only if the misrepresentation or non-disclosure was
material. Where mutual mistake is the sole ground for restitution,
restitution is granted only if the mistake was basic”); Halpert v. Rosenthal,
107 R.I. 406, 267 A.2d 730 (1970); Restatement (Second) of Contracts §
164(a) (1981) (permitting the plaintiff to avoid a contract if it was induced
either by a fraudulent or a material, non-fraudulent misrepresentation);
id. § 476 (same rule as to acts in performance induced by innocent
misrepresentations). Statutes may eliminate this liability. See Amyot v.
Luchini, 932 P.2d 244 (Alaska 1997).
125 “Sometimes avoidance of a contract or rescission is a benign and
moderate remedy as compared to damages. At other times rescission is a
disruptive remedy.” 2 Dan B. Dobbs, The Law of Remedies § 11.3 (2d ed.
1993).
126 As in, e.g., Knieper v. United States, 38 Fed.Cl. 128 (1997).
127 See Morris v. United States, 33 Fed.Cl. 733, 746 (1995); but cf.
Halpert v. Rosenthal, 107 R.I. 406, 267 A.2d 730 (1970) (general merger
clause did not prevent rescission for innocent misrepresentation).
128 See Calomiris v. Woods, 353 Md. 425, 727 A.2d 358 (1999) (parol
evidence rule bars admission of evidence of prior representations when the
plaintiff claims only innocent misrepresentations).
129 Restatement (Second) of Torts § 552C (1977) (limited to sale,
rental, or exchanges but purporting to permit out of pocket damages in all
such cases of innocent misrepresentation); Anzalone v. Strand, 14 Mass.
App. Ct. 45, 436 N.E.2d 960 (1982) (innocent misrepresentation). Some
opinions seem to have been unaware of the distinction, but possibly
because the liability was imposed on the ground of contractually implicit
warranty rather than on the basis of the mistake-rescission analysis. See
Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 232 A.2d 307 (1967).
130 Norman v. Brown, Todd & Heyburn, 693 F.Supp. 1259 (D. Mass.
1988); see M & D, Inc. v. McConkey,231 Mich.App. 22, 585 N.W.2d 33
(1998) (privity required).
(2014) (fraud). Restatement (Second) of Torts §§ 537(a) (fraudulent
representations), 552(1) (negligent representations), 552C (innocent
representation) (1977).
132 Small v. Fritz Cos., Inc., 30 Cal.4th 167, 132 Cal.Rptr.2d 490, 65
P.3d 1255 (2003) (owner who refrains from selling his securities because of
a misrepresentation has relied); St. Paul Fire & Marine Ins. Co. v. Russo
Bros., Inc., 641 A.2d 1297 (R.I. 1994); Restatement (Second) of Torts §
537(a) (1977). Thus the bare claim that the defendant is guilty of “fraud”
for intentionally overcharging or underpaying the plaintiff sums due will
fail because the plaintiff has relied upon nothing. Such a claim looks like a
plain contract claim. See Pioneer Res. Corp. v. Nami Res. Co., LLC, 2006
WL 1778318 (E.D. Ky. 2006) (unreported).
133 Lovejoy v. AT&T Corp., 92 Cal.App.4th 85, 111 Cal.Rptr.2d 711
(2001) (allegation of AT&T’s slamming, falsely representing to plaintiff’s
carrier for an 800 number that plaintiff wished to switch to AT&T;
plaintiff knew nothing of the switch until AT&T then cut off his 800
service; no reliance on the alleged misrepresentation; however, plaintiff
had a good claim for fraudulent concealment).
134 Schaaf v. Highfield, 127 Wash.2d 17, 896 P.2d 665 (1995)
(plaintiff-buyer did not rely upon negligent representation about roof
because he intended to construct a new roof anyway, and further because
he received the representation after purchase, not before).
135 Engalla v. Permanente Med. Group, Inc., 15 Cal.4th 951, 976–77,
938 P.2d 903, 64 Cal.Rptr.2d 843 (1997) (“It is not … necessary that [a
plaintiff’s] reliance upon the truth of the fraudulent misrepresentation be
the sole or even the predominant or decisive factor in influencing his
conduct…. It is enough that the representation has played a substantial
part, and so has been a substantial factor, in influencing his decision.”)
(quoting Restatement (Second) of Torts § 546 cmt. b); Horton v. Tyree, 104
W.Va. 238, 139 S.E. 737 (1927).
136 John C.P. Goldberg, Anthony J. Sebok, & Benjamin C. Zipursky,
The Place of Reliance in Fraud, 48 Ariz. L. Rev. 1001 (2006). The authors
argue that the tort of fraud protects the plaintiff’s interest in freedom to
make economic decisions undistorted by misinformation generated by
others, and this interest is not invaded unless the plaintiff relies in fact on
that misinformation. In that view, the plaintiff’s interest in avoiding harm
from fraud is not so much the point as protecting the plaintiff’s freedom to
make decisions undistorted by false information.
137 Some consumer fraud statutes eliminate the justified reliance
requirement in cases brought under those statutes. See, e.g., Gennari v.
Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350 (1997); see also White v.
Wyeth, 227 W.Va. 131, 705 S.E.2d 828 (2010) (surveying virtually all
states’ unfair competition statutes on whether they require reliance of any
kind, holding that such West Virginia’s Consumer Credit and Protection
Act does require reliance in a private consumer fraud action).
138 E.g., Stewart Title Guar. Co. v. Dude, 708 F.3d 1191 (10th Cir.
2013); Hyler v. Garner, 548 N.W.2d 864 (Iowa 1996). Justified reliance is a
jury issue if reasonable people can differ. See Jeffrey v. Methodist Hosps.,
956 N.E.2d 151 (Ind. Ct. App. 2011); Marcus Bros. Textiles, Inc. v. Price
Waterhouse, LLP, 350 N.C. 214, 513 S.E.2d 320 (1999); Doyle v. Fairfield
Mach. Co., Inc., 120 Ohio App.3d 192, 697 N.E.2d 667 (1997). Where
representations are immaterial, or may count as opinion, statements of
law, future predictions, or puffing, however, the plaintiff’s reliance may be
found to be unjustified as a matter of law. See 3 Dobbs, Hayden & Bublick,
The Law of Torts §§ 675–78 (2d ed. 2011 & Supp.). Reliance on ambiguous
remarks may also be found to be unreasonable as a matter of law. See
Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 934
N.Y.S.2d 43, 958 N.E.2d 77, 75 U.C.C. Rep. Serv. 2d 775 (2011) (alleged
oral statement by bank representative that check had “cleared”).
(2014).
140 See Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala. 1997)
(returning to “reasonable reliance” standard when plaintiff fails to read a
document she signed).
141 See Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351
(1995) (discussing and reviewing many authorities); Cocchiara v. Lithia
Motors, Inc., 297 P.3d 1277 (Or. 2013).
142 E.g., Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559,
657 A.2d 212 (1995) (although comparative fault statute covered only
personal injury and property damages, court would use comparative fault
approach to the plaintiff’s contributory fault in negligent
misrepresentation case); ESCA Corp. v. KPMG Peat Marwick, 135
Wash.2d 820, 959 P.2d 651 (1998) (similar). Sonja Larsen, Annotation,
Applicability of Comparative Negligence Doctrine to Actions Based on
Negligent Misrepresentation, 22 A.L.R.5th 464 (1995). Traditionally,
contributory negligence had no role in strict liability claims, but that has
changed in products liability suits for injury and property damage. See 2
Unless the rule of strict liability for misrepresentations is intended to
protect the negligent plaintiff from her own fault, comparative negligence
seems as appropriate in innocent as in negligent misrepresentation cases.
Comparative fault principles were invoked in Gennari v. Weichert Co.
Realtors, 148 N.J. 582, 691 A.2d 350 (1997), as between defendants.
Contra, for reasons that may be hard to generalize, Reda v. Sincaban, 145
Wis.2d 266, 426 N.W.2d 100 (Ct. App. 1988).
143 See Edwards v. Travelers Ins. of Hartford, Conn., 563 F.2d 105
(6th Cir. 1977); Greycas, Inc. v. Proud, 826 F.2d 1560, 23 Fed. R. Evid.
Serv. 888 (7th Cir. 1987).
144 Neff v. Bud Lewis, Co., 89 N.M. 145, 548 P.2d 107 (1976).
145 Bangert Bros. Constr. Co. v. Kiewit W. Co., 310 F.3d 1278 (10th
Cir. 2002); see Andrew R. Klein, Comparative Fault and Fraud, 48 Ariz. L.
Rev. 983, 992–93 (2006). In Bangert, supra, the Tenth Circuit relied on a
decision of the Colorado Supreme Court holding that comparative fault
apportionment was required in a personal injury case when one actor was
guilty of intentional wrong and another chargeable only with negligence.
However, the Colorado statute requiring comparative fault apportionment
by its own terms applied only in suits brought for “death or an injury to
person or property.” Colo. Rev. Stat. Ann. § 13–21–111.5. The claim in
Bangert Bros. was for stand-alone economic harm, that is, money losses
without damage to the claimant’s property or person, so the statute seems
facially inapt. The Bangert Bros. approach could be upheld by saying that
“property” in the statute includes stand-alone economic loss but until such
an unusual and expansive interpretation is advanced by the Colorado
Court, Bangert Bros. might be regarded as fragile authority for
apportionment that favors an intentionally fraudulent actor.
146 Estate of Braswell v. People’s Credit Union, 602 A.2d 510 (R.I.
1992).
147 Steiner Corp. v. Johnson & Higgins of Cal., 135 F.3d 684, 688
(10th Cir. 1998); (“a professional holding himself out to serve clients or
patients is liable for his negligent performance of duties undertaken and
may not be relieved of such liability by his clients’ or patients’ actions in
causing or getting involved in the very conditions which the professional
was employed and undertook to treat or remedy”); Board of Trs. of Cmty.
Coll. Dist. No. 508, County of Cook v. Coopers & Lybrand, 208 Ill.2d 259,
281 Ill.Dec. 56 (2003); Stroud v. Arthur Andersen & Co., 37 P.3d 783
(Okla. 2001).
148 Andrew R. Klein, Comparative Fault and Fraud, 48 Ariz. L. Rev.
983 (2006).
149 Gross v. Sussex, Inc., 332 Md. 247, 630 A.2d 1156 (1993) (excellent
discussion of various statements of the rule); Townsend v. Felthousen, 156
N.Y. 618, 51 N.E. 279 (1898); Horton v. Tyree, 104 W.Va. 238, 139 S.E. 737
(1927); Halpert v. Rosenthal, 107 R.I. 406, 267 A.2d 730 (1970) (nothing
absurd in statement that house had no termites that would put buyer on
notice to investigate). Some early cases took the view that bargainers
should distrust and hence investigate everything said. The change in this
attitude has been attributed to changed standards of business ethics. See 2
Harper, James & Gray, The Law of Torts § 7.12 (3d ed. 2006); Prosser &
Keeton § 108, at 751. The change may also be due to better perception
that, subject to the economic loss rule and any effective exculpatory
clauses, commercial transactions would be unduly costly and even at times
impossible if the plaintiff were required to investigate every fact asserted
by the defendant.
150 Hoyt Props., Inc. v. Productions Res. Group, LLC, 716 N.W.2d 366
(Minn. Ct. App. 2006) (“A party’s reliance is reasonable unless the party is
on notice that the representation is not to be trusted or knows or has
reason to know that the representation is false” even if representation is
made by adverse bargainer).
151 Cf. Field v. Mans, 516 U.S. 59, 116 S.Ct. 437 (1995) (creditor who
justifiably relied upon debtor’s representations is not barred by debtor’s
bankruptcy, even if he could readily have learned the truth by checking
deed records); see Restatement (Second) of Torts § 545A cmt. b (1977).
152 U.S. v. Rosby, 454 F.3d 670, 677 (7th Cir. 2006). Judge
Easterbrook continued: “Thus investors’ gullibility and carelessness do not
excuse willfully false statements or reduce the damages available to the
victims.”
153 E.g., Ruff v. Charter Behavior Health Sys. of Nw. Ind., Inc., 699
N.E. 2d 1171 (Ind. Ct. App. 1998); Sales v. Kecoughtan Housing Co., Ltd.,
279 Va. 475, 690 S.E.2d 91 (2010); Adams v. King Cnty., 164 Wash.2d 640,
192 P.3d 891 (2008).
154 Radioshack Corp. v. ComSmart, Inc., 222 S.W.3d 256 (Ky. Ct. App.
2007); Adams v. King County, 164 Wash.2d 640, 192 P.3d 891 (2008) (a
“false” promise does not constitute an existing fact).
155 The meaning, not the form of the statement, determines whether
it will be counted as non-actionable opinion. See Restatement (Second) of
Torts § 538A cmt. d (1977). When reasonable minds can differ about
whether a statement of is opinion or fact, it is a jury question.
Restatement (Third) of Torts: Liability for Economic Harms § 14 cmt.a
(2012). See the detailed analysis in W. Page Keeton, Fraud:
Misrepresentations of Opinion, 21 Minn. L. Rev. 643 (1937). See also
United Concrete & Constr., Inc. v. Red-D-Mix Concrete, Inc., 836 N.W.2d
807 (Wis. 2013).
156 Papatheofanis v. Allen, 242 P.3d 358 (N.M. Ct. App. 2010) (if
statement was opinion, defendant as fiduciary was nevertheless subject to
liability if other elements of the tort were shown).
157 625 3rd St. Assocs., L.P. v. Alliant Credit Union, 633 F.Supp.2d
1040, 1052 (N.D. Cal. 2009) (“opinions expressed by persons deemed to
have superior knowledge over or special information regarding
transactions can form the basis of a misrepresentation claim”).
158 See Cummings v. HPG Int’l, Inc., 244 F.3d 16 (1st Cir. 2001)
(statement indicated that defendant knew facts to justify its “opinion”);
(2014).
160 Ed Miller & Sons, Inc. v. Earl, 243 Neb. 708, 502 N.W.2d 444
(1993).
161 Kennedy v. Flo-Tronics, Inc., 274 Minn. 327, 143 N.W.2d 827
(1966).
Supp.).
163 See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269 (Tex. 1995).
ed. 2011 & Supp.).
165 See, supporting liability for fraudulent representations to those
whose reliance is reasonably foreseeable or expected, Bily v. Arthur Young
& Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992) (accountant
performing audit); Geernaert v. Mitchell, 31 Cal.App.4th 601, 37
Cal.Rptr.2d 483 (1995) (homeowner-seller expecting repetition of falsehood
in subsequent sales); Clark v. McDaniel, 546 N.W.2d 590 (Iowa 1996);
Rhee v. Highland Dev. Corp., 182 Md.App. 516, 958 A.2d 385 (2008); cf.
Ernst & Young, LLP v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573 (Tex.
2001) (approving the Restatement’s “reason to expect” language but
insisting that this requires more than mere foreseeability).
(2014).
167 Id. § 12 cmt. b (2014).
168 Restatement (Second) of Torts § 552(2) (1977).
(2014).
170 See Bily v. Arthur Young & Co., 3 Cal.4th 370, 11 Cal.Rptr. 51,
834 P.2d 745 (1992); First Fla. Bank, N.A. v. Max Mitchell & Co., 558
So.2d 9 (Fla. 1990); Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969);
Van Sickle Constr. Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d
684 (Iowa 2010) (approving Restatement formulation generally); NYCAL
Corp. v. KPMG Peat Marwick LLP., 426 Mass. 491, 688 N.E.2d 1368
(1998); Lucky 7, LLC v. THT Realty, LLC, 278 Neb. 997, 775 N.W.2d 671
(2009) (reiterating court’s adoption of Restatement rules); Raritan River
Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 367 S.E.2d 609
(1988); Bethlehem Steel Corp. v. Ernst & Whinney, 822 S.W.2d 592 (Tenn.
1991).
ed. 2011 & Supp.).
172 See Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d
101 (Alaska 2001) (fiduciary duty of joint venturer to disclose continues
after notice of withdrawal from venture until complete winding up of the
venture’s affairs); Burkons v. Ticor Title Ins. Co. of Cal., 168 Ariz. 345, 813
P.2d 710 (1991) (escrow agent’s duty to reveal evidence of fraud by one of
the parties upon the other); Pacelli Bros. Transp., Inc. v. Pacelli, 189 Conn.
401, 456 A.2d 325 (1983) (obligation may continue after relationship
terminated); Martin v. Heinold Commodities, Inc., 163 Ill.2d 33, 643
N.E.2d 734 (1994) (precontract negotiations to create fiducial relationship
required disclosure of special commissions). With appropriate
adjustments, a fiduciary’s concealment or nondisclosure of information
needed for the physical safety of a beneficiary can also be actionable. See
Doe 67C v. Archdiocese of Milwaukee, 700 N.W.2d 180 (Wis. 2005)
(recognizing principle).
173 Refrigeration Indus., Inc. v. Nemmers, 880 S.W.2d 912 (Mo. Ct.
App. 1994); Shafmaster v. Shafmaster, 138 N.H. 460, 642 A.2d 1361
(1994); Restatement (Second) of Torts § 551(2)(c) (1977).
174 Restatement (Second) of Torts § 551(d) (1977).
175 Meade v. Cedarapids, Inc., 164 F.3d 1218 (9th Cir. 1999); OCM
Principal Opportunities Fund v. CIBC World Mkts. Corp., 157 Cal.App.4th
835, 68 Cal.Rptr.3d 828 (2007); St. Joseph Hosp. v. Corbetta Constr. Co.,
Inc., 21 Ill.App.3d 925, 316 N.E.2d 51 (1974); Restatement (Second) of
Torts § 551(2)(b) (1977). In Sarvis v. Vermont State Colleges, 772 A.2d 494
(Vt. 2001), a man convicted of bank fraud was imprisoned for several years
and legally obliged to repay $12 million. Quickly out of prison, he applied
for a teaching job, presenting a resume that did not reveal that he had
been in prison. When discovered and discharged, he sued the college. The
college relied on his fraud as justification for termination. He argued that
he had no duty to reveal his conviction or imprisonment, but the court
answered that under the half-truth rule and also because of affirmative
misrepresentations, he was chargeable with fraud and his termination was
just.
176 Junius Constr. Co. v. Cohen, 257 N.Y. 393, 178 N.E. 672 (1931)
(the ennumeration of “a risk like in kind but vastly greater in degree”
tacitly implied there were no others).
177 Restatement (Second) of Torts § 551(e) (1977); cf. Alejandre v.
Bull, 159 Wash.2d 674, 689 153 P.3d 864, 872 (2007) (duty to disclose
defects in property that present a danger to property itself, health, or life
of the purchaser). Maybee v. Jacobs Motor Co., Inc., 519 N.W.2d 341 (S.D.
1994).
(2014).
179 MacDonald v. Thomas M. Cooley Law Sch., 724 F.3d 654 (6th Cir.
2013); Littau v. Midwest Commodities, Inc., 316 N.W.2d 639 (S.D. 1982).
180 See RepublicBank Dallas, N.A. v. First Wis. Nat’l Bank of
Milwaukee, 636 F.Supp. 1470 (E.D. Wis. 1986) (clauses would be effective
to bar claims for misrepresentation grounded in negligence or strict
liability); Van Der Stok v. Van Voorhees, 151 N.H. 679, 866 A.2d 972
(2005) (by implication, exculpatory clauses would bar negligent
misrepresentation claims); Snyder v. Lovercheck, 992 P.2d 1079, 1086
(Wyo. 1999). Contra: Formento v. Encanto Bus. Park, 154 Ariz. 495, 744
P.2d 22 (Ct. App. 1987).
181 Stegman v. Professional & Bus. Men’s Life Ins. Co., 173 Kan. 744,
750, 252 P.2d 1074, 1080 (1953) (“An invariable qualification of the rule
which makes parol evidence inadmissible to vary the terms of a written
instrument is the one which permits such testimony where a contract is
induced or procured by fraud…. Fraud vitiates whatever it touches
including final judgments and final orders as well as contracts.”).
182 Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551 (1941)
(“contracts or clauses attempting to protect a party against the
consequences of his own fraud are against public policy and void where
fraud inducing the contract is shown”).
183 McClain v. Octagon Plaza, LLC, 159 Cal.App.4th 784, 71
Cal.Rptr.3d 885 (2008); Aspiazu v. Mortimer, 139 Idaho 548, 82 P.3d 830
(2003); Meland v. Youngberg, 124 Minn. 446, 145 N.W. 167 (1914); Slack v.
James, 364 S.C. 609, 614 S.E.2d 636 (2005) (parol evidence rule does not
bar proof of either scienter fraud or negligent misrepresentation); see Still
v. Cunningham, 94 P.3d 1104 (Alaska 2004).
184 Tenzer v. Superscope, Inc., 39 Cal.3d 18, 702 P.2d 212, 216
Cal.Rptr. 130 (1985); Burgdorfer v. Thielemann, 153 Or. 354, 55 P.2d 1122
(1936); Restatement (Second) of Torts § 530 cmt. c (1977).
185 See, permitting the fraud claim in spite of a merger clause,
Blanchard v. Blanchard, 108 Nev. 908, 919, 839 P.2d 1320, 1322–23 (1992)
(clause providing that one party did not rely on values in financial
statement did not bar fraud claim; “integration clauses do not bar claims
for misrepresentation” and neither do waiver clauses); Travers v. Spidell,
682 A.2d 471 (R.I. 1996).
186 Pearson & Son, Ltd. v. Lord Mayor of Dublin, [1907] A.C. 351,
353–354 (H.L. 1907) (“no one can escape liability for his own fraudulent
statements by inserting in a contract a clause that the other party shall
not rely upon them;” per Lord Loreburn, L.C.); Cummings v. HPG Int’l,
Inc., 244 F.3d 16 (1st Cir. 2001) (Massachusetts law, contract cannot
protect defendant against his own fraud, but in some cases may bar
negligent misrepresentation action); Bates v. Southgate, 308 Mass. 170, 31
N.E.2d 551 (1941); Hess v. Chase Manhattan Bank, USA, N.A., 220
S.W.3d 758 (Mo. 2007) (“a party may not, by disclaimer or otherwise,
contractually exclude liability for fraud in inducing that contract”);
Bowman v. Presley, 212 P.3d 1210, 1220 (Okla. 2009) (terms of contract
did not prevent buyers’ claim of fraud; “A whisper of fraud can topple the
pillars of even the most impregnable contract, for to base a contract upon
fraud is to build it upon sand…. Fraud vitiates everything it touches, and
a contract obtained thereby is voidable”). In most of these cases and a
number of others that allow the fraud claim to proceed, the person
claiming fraud is a consumer or small investor while the fraud is alleged
against a relatively sophisticated repeat player who is engaged in a
business operation. However, in ABRY Partners V, L.P. v. F & W
Acquisition LLC, 891 A.2d 1032 (Del. Ch. 2006), the court allowed a
scienter fraud claim by a sophisticated buyer to proceed in spite of non-
reliance clauses, where the seller’s misrepresentation was contained in the
written contract documents themselves.
187 The defendant’s fraud in procuring the exculpatory clause itself
will not bar the plaintiff’s fraud claim, though fraud in inducing the
contract as a whole will. See UAW-GM Human Res. Ctr. v. KSL
Recreation Corp., 228 Mich.App. 486, 503, 579 N.W.2d 411, 419 (1998). A
similar rule is applied when the contract contains an arbitration clause.
One claiming the contract was procured by fraud does not avoid the clause
that submits disputes to arbitration unless she can also show that the
clause itself was induced by fraud, Prima Paint v. Flood & Conklin, 388
U.S. 395, 87 S.Ct. 1801 (1967); Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 126 S.Ct. 1204 (2006); Ericksen, Arbuthnot, McCarthy,
Kearney & Walsh, Inc. v. 100 Oak St., 35 Cal.3d 312, 197 Cal.Rptr. 581,
673 P.2d 251 (1983), or that the entire contract was procured by fraud in
the execution, see Rosenthal v. Great Western Fin. Sec. Corp., 14 Cal.4th
394, 926 P.2d 1061, 58 Cal.Rptr.2d 875 (1996).
188 See Northrop v. Piper, 199 Minn. 244, 271 N.W. 487 (1937)
(contract provision contradicted alleged prior representation; “That ends
the case…. [T]he inescapable answer is that, whatever negotiations, or
even contracts, had preceded in respect to his actual or hoped for status in
the new business, he agreed contractually that from August 27, 1928, on
he was to be a salesman only,” notwithstanding the plaintiff’s claim of
fraud); Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d
425, 437 n.26 (2004) (“parol evidence may not be admitted based on a
claim that there was fraud in the inducement of the contract, i.e., that an
opposing party made false representations that induced the complaining
party to agree to the contract”).
189 See U.S. v. Rosby, 454 F.3d 670 (7th Cir. 2006) (“an investor’s
disclaimer of reliance on certain representations, as part of a declaration
that the investor has done and is relying on his own investigation, defeats
a private damages action for securities fraud”); Head v. Head, 59 Md.App.
570, 477 A.2d 282 (1984) (ordinary integration clause would not bar fraud
claim, but provision that plaintiff who accepted $1.5 million knew she did
not know defendant’s total assets and realized they might be
disproportionately greater would be a bar).
190 Oakland Raders v. Oakland-Alameda County Colisuem, Inc., 144
Cal.App.4th 1175, 51 Cal.Rptr.3d 144 (2006) (a negligent
misrepresentation claim; “if, after discovery of the alleged fraud, he enters
into a new contract with the defendant regarding the same subject matter
that supersedes the former agreement and confers upon him significant
benefits the plaintiff has waived the misrepresentation;” also suggesting
that estoppel underlies the rule).
192 Id. §§ 9.3(1) & 9.6.
2011 & Supp.).
194 Id. § 688.
195 Id. § 689.
196 2 Dan B., Dobbs, Law of Remedies § 9.3(4) (2d ed. 1993).
197 See, e.g., Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J.Super. 546,
955 A.2d 940 (2008) (but holding that tax benefits represented were not
established with sufficient certainty); Schnellmann v. Roettger, 373 S.C.
379, 645 S.E.2d 239 (2007) (but finding reliance unjustified).
198 When the misrepresentation induces the plaintiff either to forgo or
enter into a transaction with some person other than the defendant, none
of these market value rules seem to portray the problem. See Trytko v.
Hubbell, Inc., 28 F.3d 715 (7th Cir. 1994), discussing some such cases. In
those instances, the claim can appropriately be viewed as a consequential
damages claim involving none of the market measures.
199 When the market-based damage measure duplicates the
consequential damages, both should not be awarded. Damages under the
two measures may be duplicative even if they do not produce the same
final figure. Duplication arises from the fact that market value may be
based on prospects of producing profits, so lost profits and inadequate
market value may be only two ways of estimating the same single loss.
See, with an example, 2 Dan B. Dobbs, Law of Remedies § 9.2(3) (2d ed.
1991).
200 Zanakis-Pico v. Cutter Dodge, Inc., 98 Haw. 309, 47 P.3d 1222
(Haw. 2002).
201 E.g., Lazar v. Superior Court, 12 Cal.4th 631, 909 P.2d 981, 49
Cal.Rptr.2d 377 (1996) (items like moving expenses in addition to loss of
bargain damages for employee fraudulently induced to move to new job).
See generally 2 Dan B. Dobbs, Law of Remedies § 9.2(3) (2d ed. 1993). New
York, with a strong policy of limiting damages to out of pocket losses, has
rejected some consequential damages on the ground that allowance will
tend to match a loss of bargain rule. See Alpert v. Shea Gould Climenko &
Casey, 160 A.D.2d 67, 559 N.Y.S.2d 312 (1990).
202 Loss of expected profits and loss of bargain may turn out on some
facts to be two ways of measuring the same thing. See 2 Dan B. Dobbs,
Law of Remedies § 9.2(4), p. 558 (2d ed. 1993).
203 See id. §§ 3.3 (3) & 3.4 (2d ed. 1991); for more detail, see 3 Dobbs,
204 E.g., Brogan v. Mitchell Int’l, Inc., 181 Ill.2d 178, 692 N.E.2d 276,
229 Ill.Dec. 503 (1998); Cornell v. Wunschel, 408 N.W.2d 369 (Iowa 1987)
(denying mental distress damages in the tort of deceit; “deceit is an
economic, not a dignitary tort”); Jourdain v. Dineen, 527 A.2d 1304 (Me.
1987); 2 Dan B. Dobbs, Law of Remedies § 9.2(4) (2d ed. 1993); cf.
McConkey v. Aon Corp., 354 N.J. Super. 25, 804 A.2d 572 (2002) (fraud
inducing an employment contract, emotional damages not recoverable).
Supp.).
206 Cf. Campbell v. State Farm Mut. Auto. Ins. Co., 98 P.3d 409 (Utah
2004) (fraud claim embedded in bad faith claim against insurer; on
remand from the Supreme Court on issue of punitive damages, original
award of $145 million reduced to less than $10 million).
207 E.g., Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059 (Alaska 2005)
($30,000 actual damages, $300,000 punitive damages upheld for
reprehensible fraud); Medasys Acquisition Corp. v. SDMS, P.C., 203 Ariz.
420, 55 P.3d 763 (2002) (punitive damages recoverable even where the
plaintiff seeks and obtains rescission for fraud; the requirement of actual
damages to support punitive awards is met here); Midwest Home
Distributor, Inc. v. Domco Indus. Ltd., 585 N.W.2d 735 (Iowa 1998);
McConkey v. Aon Corp., 354 N.J.Super. 25, 804 A.2d 572 (2002); Campbell
v. State Farm Mut. Auto. Ins. Co., 98 P.3d 409 (Utah 2004).
208 E.g., Ga. Code Ann., § 31–38–10 (punitive damages authorized for
intentional violations of statute); N. M. Stat. § 57–27–5 (treble damages or
$300, whichever is greater). These statutes may provide for recovery of
some minimum sum, such as $1,000, even if actual damages are less. E.g.,
Idaho Code § 48–608(1).
209 E.g., American Family Serv. Corp. v. Michelfelder, 968 F.2d 667
(8th Cir. 1992); Bechtel v. Liberty Nat’l Bank, 534 F.2d 1335 (9th Cir.
1976); Turnbull v. LaRose, 702 P.2d 1331 (Alaska 1985). A number of
cases have stated the formula as “the difference between the value of the
goods received and the value of the goods as represented.” E.g., Lancaster
v. Schilling Motors, Inc., 299 Ark. 365, 369, 772 S.W.2d 349, 351 (1989);
Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill.2d 179, 131 Ill.Dec.
155, 538 N.E.2d 530 (1989); LeFlore v. Reflections of Tulsa, Inc., 708 P.2d
1068 (Okla. 1985); Danca v. Taunton Sav. Bank, 385 Mass. 1, 429 N.E.2d
1129 (1982); Terry v. Panek, 631 P.2d 896 (Utah 1981); Kramer v. Chabot,
564 A.2d 292 (Vt. 1989).
210 Hall v. Lovell Regency Homes Ltd. P’ship, 121 Md.App. 1, 708
A.2d 344 (1998); Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d
768, 776 (Tex. 2009); see Restatement (Second) of Torts § 549 (1977); cf.
O’Neal Ford, Inc. v. Davie, 299 Ark. 45, 770 S.W.2d 656 (1989) (a
preference for loss of bargain but approving a recovery based upon out of
pocket).
211 Walston v. Monumental Life Ins. Co., 129 Idaho 211, 923 P.2d 456
(1996).
212 Restatement (Second) of Torts § 552B (1977). In any event,
recovery of money damages on a negligent misrepresentation claim
requires proof of injury. See, e.g., Ironworkers Local Union 68 v.
AstraZeneca Pharm., LP, 634 F.3d 1352, R.I.C.O. Bus. Disp. Guide (CCH)
P 12026 (11th Cir. 2011) (under applicable laws of the three states
involved, “without allegations of injury, a claim is not remediable when
based either on common law fraud, or negligent misrepresentation”; here,
the plaintiffs failed to allege any economic injury arising from
pharmaceutical manufacturer’s alleged misrepresentations about the
safety and effectiveness of their drugs and were therefore not entitled to
any recovery).
213 E.g., Trytko v. Hubbell, Inc., 28 F.3d 715 (7th Cir. 1994); BDO
Seidman, LLP v. Mindis Acquisition Corp., 276 Ga. 311, 578 S.E.2d 400
(2003); First Interstate Bank of Gallup v. Foutz, 107 N.M. 749, 764 P.2d
1307 (1988); Washington Mut. Bank v. Houston Windcrest West Rd. I,
L.P., 262 S.W.3d 856 (Tex. App. 2008).
214 Restatement (Second) of Torts § 552C (1977).
215 UCC § 2–714 (2) (“The measure of damages for breach of warranty
is the difference at the time and place of acceptance between the value of
the goods accepted and the value they would have had if they had been as
warranted, unless special circumstances show proximate damages of a
different amount”).
ed. 2011 & Supp.) (reflecting these alternative aims in the benefit of
bargain and out of pocket measures of damages). Misrepresentation may
also be a relevant fact in other torts, in which case physical harm and
other damages may be appropriate. Id. § 663.
217 Variations on the entitlement rules can be found in ordinary
trespass cases, conversion cases, contract cases, nuisance cases, and in
breach of warranty cases, including breach of the warranty of habitability
in a lease. See Williard v. Parsons Hill P’ship, 178 Vt. 300, 882 A.2d 1213
(2005). Except to provide some special rules to deal with market
fluctuation, in none of these cases do courts ordinarily inquire whether the
present economic loss might be nullified by subsequent events that would
nullify the plaintiff’s apparent loss. Risks that an apparent loss is only a
“blip” on the screen, to be erased when the market rises a few days later,
may be addressed by treating a three-month market average as the
appropriate market value, see 15 U.S.C.A. § 78u–4(e), or by some similar
adjustment, see 15 U.S.C.A. § 73 (similar adjustments to deal with
fluctuating markets in converted goods).
218 UCC § 2–714 (2) (“The measure of damages for breach of warranty
is the difference at the time and place of acceptance between the value of
the goods accepted and the value they would have had if they had been as
warranted, unless special circumstances show proximate damages of a
different amount”).
219 That is only to recognize that value of property reflects what
buyers would pay and that buyers would take into account risks of future
harm as well as opportunities for future gain. See Almota Farmers
Elevator & Warehouse Co. v. United States, 409 U.S. 470, 93 S.Ct. 791, 35
L.Ed.2d 1 (1973); City of Harlingen v. Estate of Sharboneau, 48 S.W.3d
177 (Tex. 2001).
220 For example, in Artilla Cove Resort, Inc. v. Hartley, 72 S.W.3d 291
(Mo. Ct. App. 2002), the building sold to the plaintiffs did not have the
structural strength represented (by concealment or nondisclosure);
extensive repairs would be needed, but the plaintiffs had neither taken a
loss through selling the building at a lower price or by paying for the
repairs. They were entitled to recover the difference between a building as
represented and the unsound building they received. Although not
involving fraud, the damages principle in Williard v. Parsons Hill
Partnership, 178 Vt. 300, 313, 882 A.2d 1213, 1222 (2005), was the same.
The court there held that landlords who provided a toxin-contaminated
water supply were subject to liability under a warranty of habitability for
the difference between the value of the lease with and without drinkable
water, regardless whether personal injuries had been proven. On
unrealized losses generally see 1 Dan B. Dobbs, Law of Remedies §§ 3.2 &
3.3(3) (2d ed. 1993).
221 See 1 Dan B. Dobbs, Law of Remedies §§ 3.3(4) & 3.4 (2d ed. 1993).
222 See id.
223 Id. §§ 3.4 & 3.9.
224 3 Dobbs, Hayden & Bublick, The Law of Torts §§ 695–707 (2d ed.
2011 & Supp.).
225 “A fiduciary relation exists between two persons when one of them
is under a duty to act for or to give advice for the benefit of another upon
matters within the scope of the relation.” Restatement (Second) of Torts §
874 cmt. a (1977); accord, Hoopes v. Hammargren, 102 Nev. 425, 431, 725
P.2d 238, 242 (1986) (“A fiduciary relationship is deemed to exist when one
party is bound to act for the benefit of the other party.”). This test defines
the existence of a fiduciary duty by referring to its legal effect, not by
reference to a state of facts. Consequently, if you want to know whether a
fiduciary relation exists, you in effect ask whether there is a fiduciary
duty. To find out, you would ask whether there was a fiduciary relation,
leaving an endless circle. A different criticism of this definition is given in
Deborah A. DeMott, Breach of Fiduciary Duty: On Justifiable Expectations
of Loyalty and Their Consequences, 48 Ariz. L. Rev. 925, 933–34 (2006).
226 Ware v. Ware, 161 P.3d 1188 (Alaska 2007) (“when one imposes a
special confidence in another, so that the latter, in equity and good
conscience, is bound to act in good faith and with due regard to the
interests of the one imposing the confidence”); Scheffler v. Adams & Reese,
LLP, 950 So.2d 641, 647 (La. 2007) (“when confidence is reposed on one
side and there is resulting superiority and influence on the other”).
Restatement (Third) of Trusts § 2 cmt. b (2003), prefers to say that
confidential relationships are not fiduciary relationships, and, to
distinguish the formal or categorical fiduciary cases, courts sometimes
refer to these cases as confidential relationship cases. However, the
terminology does not eliminate the fiduciary type duty.
227 Kent v. United of Omaha Life Ins. Co., 484 F.3d 988 (8th Cir.
2007) (“when one party places ‘peculiar confidence’ and trust in another
and the trusted party ‘undertakes to act primarily for another’s benefit’);
Gracey v. Eaker, 837 So.2d 348 (Fla. 2002) (“where confidence is reposed
by one party and a trust accepted by the other, or where confidence has
been acquired and abused”); Mabus v. St. James Episcopal Church, 884
So.2d 747 (Miss. 2004) (“must be evidence that both parties understood
that a special trust and confidence was being reposed”); Groob v. KeyBank,
108 Ohio St.3d 348, 351, 843 N.E.2d 1170, 1173 (2006) (a fiduciary’s duty
is “created by his undertaking, to act primarily for the benefit of another
in matters connected with his undertaking”); Johnson v. Reiger, 93 P.3d
992 (Wyo. 2004) (fiduciary relations “not created by the unilateral decision
to repose trust and reliance, but derive from the conduct or undertaking of
the purported beneficiary”).
228 Deborah A. DeMott, Breach of Fiduciary Duty: On Justifiable
Expectations of Loyalty and Their Consequences, 48 Ariz. L. Rev. 925,
941–49 (2006).
229 In re Express Scripts, Inc., PBM Litig., 522 F.Supp.2d 1132 (E.D.
Mo. 2007) (business contracts “do not generally give rise to a fiduciary
relationship, absent extraordinary circumstances”; the “parties deal with
each other at arm’s length”).
Supp.).
231 “Not honesty alone, but the punctilio of an honor the most
sensitive, is then the standard of behavior.” Meinhard v. Salmon, 249 N.Y.
458, 464, 164 N.E. 545, 546 (1928) (Cardozo, C.J.). Cardozo’s language has
been quoted or paraphrased in hundreds of cases. See also Blair v.
McDonagh, 177 Ohio App.3d 262, 894 N.E.2d 377 (2008) (the fiduciary
“relationship imposes on the members a duty to exercise the utmost good
faith and honesty in all dealings and transactions”); Today Homes, Inc. v.
Williams, 272 Va. 462, 634 S.E.2d 737 (2006); see generally Deborah A.
DeMott, Breach of Fiduciary Duty: On Justifiable Expectations of Loyalty
and Their Consequences, 48 Ariz. L. Rev. 925 (2006).
232 See Doe v. Liberatore, 478 F.Supp. 2d 742, 766 (M.D. Pa. 2007)
(“One in a fiduciary relationship with another is under a duty to act solely
in the interest of that person”); In re Estate of Green, 912 A.2d 1198 (D.C.
2006) (“An important aspect of a personal representative’s fiduciary duty
is that he must place the best interests of the heirs ahead of his own
interests”); Zastrow v. Journal Commc’ns, Inc., 291 Wis.2d 426, 718
N.W.2d 51 (2006) (similar).
233 See EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 832 N.E.2d
26 (2005) (underwriter had fiduciary obligation to disclose alleged secret
deals that would give it incentive to underprice initial public offering price
of plaintiff’s stock).
234 Deborah A. DeMott, Breach of Fiduciary Duty: On Justifiable
Expectations of Loyalty and Their Consequences, 48 Ariz. L. Rev. 925, 931
(2006).
235 See Brehm v. Eisner, 746 A.2d 244, 264 n.66 (Del. 2000)
(“directors’ decisions will be respected by courts unless the directors are
interested or lack independence relative to the decision, do not act in good
faith, act in a manner that cannot be attributed to a rational business
purpose or reach their decision by a grossly negligent process that includes
the failure to consider all material facts reasonably available”).
236 Meinhard v. Salmon, 249 N.Y. 458, 467–68, 164 N.E. 545, 548
(1928). Judge Cardozo for the majority said: “We have no thought to hold
that Salmon was guilty of a conscious purpose to defraud. Very likely he
assumed in all good faith that with the approaching end of the venture he
might ignore his coadventurer and take the extension for himself.” Even
so, the majority held him responsible. Judge Andrews, dissenting, thought
liability should be judged by assessing fairness, not merely by the fact that
the innocent co-adventurer took an opportunity he thought was his to
take.
237 E.g., Diamond v. Pappathanasi, 78 Mass.App.Ct. 77, 935 N.E.2d
340 (2010); IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d
132, 907 N.E.2d 268 (2009); Restatement (Second) of Torts § 874 (1979);
Deborah A. DeMott, Breach of Fiduciary Duty: On Justifiable Expectations
of Loyalty and Their Consequences, 48 Ariz. L. Rev. 925, 927–34 (2006).
238 Collins v. Reynard, 154 Ill.2d 48, 607 N.E.2d 1185 (1992) (client
can proceed against his attorney either in tort or contract); Burbank
Grease Servs., LLC v. Sokolowski, 717 N.W.2d 781 (Wis. 2006) (agent’s
duty of loyalty redressable either in tort or contract).
239 Ash v. Continental Ins. Co., 932 A.2d 877 (Pa. 2007).
240 See In re Adelphia Commc’ns Corp., 365 B.R. 24 (S.D.N.Y. 2007)
(also recognizing some contrary authority and special circumstances
warranting an exception); Arcidi v. Nat’l Ass’n of Gov’t Employees, Inc.,
447 Mass. 616, 856 N.E.2d 167 (2006) (dictum; the aider is not liable
unless he actively participates or substantially assists in or encourages the
breach “to the degree that he or she could not reasonably be held to have
acted in good faith”); Burbank Grease Servs., LLC v. Sokolowski, 717
N.W.2d 781 (Wis. 2006); Restatement of Restitution § 138 (1937).
241 Williams Elec. Games, Inc. v. Garrity, 366 F.3d 569 (7th Cir.
2004).
242 “[I]dentifying a breach of fiduciary duty [is] the beginning of the
analysis, and not its conclusion. Counsel are required to identify the
particular fiduciary relationship involved, identify how it was breached,
consider the remedies available, and select those remedies appropriate to
the client’s problem. Whether the cause or causes of action selected carry
the right to a jury trial will have to be determined by an historical
analysis.” Kann v. Kann, 344 Md. 689, 713, 690 A.2d 509, 521 (1997).
243 Rhue v. Dawson, 173 Ariz. 220, 841 P.2d 215 (Ct. App. 1992).; In
re Guardianship of Dorson, 156 N.H. 382, 934 A.2d 545 (2007) (fiduciary
took non-cash assets, which had appreciated in value at the time of trial;
held, the fiduciary and its surety would be liable for the appreciated
value).
244 E.g., Bardis v. Oates, 119 Cal.App.4th 1, 14 Cal.Rptr.3d 89 (2004);
Jordan v. Holt, 362 S.C. 201, 608 S.E.2d 129 (2005); Cooper v. Cooper, 173
Vt. 1, 783 A.2d 430 (2001).
245 Statutes like ERISA, prescribing only equitable enforcement, may
prohibit the award of damages against the statutory fiduciary. See Callery
v. U.S. Life Ins. Co. in the City of New York, 392 F.3d 401 (10th Cir. 2004).
246 Biosynexus, Inc. v. Glaxo Group Ltd., 40 A.D.3d 384, 836 N.Y.S.2d
126 (2007) (preliminary injunction in connection with defendant’s
assignment of rights, allegedly in violation of fiduciary duty); Sharma v.
Vinmar Int’l, Ltd., 231 S.W.3d 405, 429 (Tex. App. 2007) (“injunctive relief
must, of necessity, be full and complete so that those who have acted
wrongfully and have breached their fiduciary relationship, as well as those
who willfully and knowingly have aided them in doing so, will be
effectively denied the benefits and profits flowing from the wrongdoing;”
approving injunction against use of trade secrets by former employees).
247 E.g., Williams Elec. Games, Inc. v. Garrity, 366 F.3d 569 (7th Cir.
2004); United States v. Kearns, 595 F.2d 729 (D.C. Cir. 1978); Lingo v.
Lingo, 3 A.3d 241 (Del. 2010); In re Paxson Trust I, 893 A.2d 99 (Pa.
Super. 2006) (trustee who used trust property as collateral for a personal
loan is subject to liability for the “profit” thus obtained); ERI Consulting
Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867 (Tex. 2010); 1 Dan B. Dobbs, Law
of Remedies §§ 4.3(5), 4.5(3), 10.6 (2d ed. 1993) (among many discussions
on recovery of the breacher’s profits, both against fiduciaries and others).
248 See In re Guardianship of Dorson, 156 N.H. 382, 934 A.2d 545
(2007) (“when crafting a remedy for a trustee’s breach of trust and breach
of loyalty, ‘[t]he court is not confined to a limited list of remedies but
rather will mold the relief to protect the rights of the beneficiary according
to the situation involved,’ ” quoting G.G. Bogert & G.T. Bogert, The Law of
Trusts and Trustees § 861, at 4 (2d ed. rev.1995)).
249 Seaman’s Direct Buying Serv. Inc. v. Standard Oil Co. of Cal., 36
Cal.3d 752, 206 Cal.Rptr. 354, 686 P.2d 1158 (1984) (creating a tort based
upon the defendant’s bad faith denial that it had a valid contract to supply
oil to the plaintiff); Nicholson v. United Pac. Ins. Co., 219 Mont. 32, 710
P.2d 1342 (1985).
250 See Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 900
P.2d 669, 44 Cal.Rptr.2d 420 (1995) (limiting the bad faith claim in tort to
insurance cases and those where an independent tort is committed);
Stephen S. Ashley, Bad Faith Actions: Liability and Damages § 11.01 (2d
ed., current on Westlaw).
251 E.g., JP Morgan Trust Co. Nat’l Ass’n v. Mid-America Pipeline Co.,
413 F.Supp.2d 1244 (D. Kan. 2006); LaSalle Nat’l Leasing Corp. v.
Lyndecon, LLC, 409 F.Supp.2d 843 (E.D. Mich. 2005) (Michigan law);
Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd. P’ship, 115 Haw. 201,
229, 166 P.3d 961, 989 (2007) (“there is no tort of bad faith outside the
context of insurance claims”); Gorski v. Smith, 812 A.2d 683, 710 (Pa.
Super. 2002) (“Where a duty of good faith arises, it arises under the law of
contracts, not under the law of torts”); see Stephen S. Ashley, Bad Faith
Actions Liability & Damages § 11.2 (available on Westlaw with updates)
(“the courts have … uniformly declined to extend the cause of action for
bad faith beyond the insurance context”).
252 E.g., Mobil Oil Corp. v. Thorn, 401 Mich. 36, 258 N.W.2d 30 (1977)
(landlord’s contract to repair premises); cf. DCR Inc. v. Peak Alarm Co.,
663 P.2d 433, 37 A.L.R.4th 35 (Utah 1983) (negligent performance of
burglar alarm contract permitted burglary). The point is often raised in
nonfeasance cases, where the rule creates a tort duty if the defendant
undertakes to act for the plaintiff’s safety and certain other conditions are
met.
2011 & Supp.).
254 Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 510 P.2d 1032, 108
Cal.Rptr. 480 (1973).
255 Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397
(1994).
256 See Dale v. Guaranty Nat’l Ins. Co., 948 P.2d 545, 551 (Colo. 1997)
(the plaintiff must prove that “the insurer acted: (1) unreasonably and (2)
with knowledge of or reckless disregard of its unreasonableness”); Bellville
v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468 (Iowa 2005); Hein v.
Acuity, 731 N.W.2d 231 (S.D. 2007); Anderson v. Continental Ins. Co., 85
Wis.2d 675, 691, 271 N.W.2d 368, 376 (1978). Douglas G. Houser, Ronald
J. Clark & Linda M. Bolduan, Good Faith as a Matter of Law-an Update
on the Insurance Company’s “Right to Be Wrong,” 39 Tort Trial & Ins.
Prac. L.J. 1045 (2004).
257 E.g., Brown v. Patel, 157 P.3d 117, 122 (Okla. 2007) (“a duty to
timely and properly investigate an insurance claim is intrinsic to an
insurer’s contractual duty to timely pay a valid claim”).
258 See Roger C. Henderson, The Tort of Bad Faith in First-Party
Insurance Transactions after Two Decades, 37 Ariz. L. Rev. 1153 (1995)
(noting among other examples, potential liability for falsely accusing the
insured of wrongdoing). In Hollock v. Erie Ins. Exchange, 842 A.2d 409
(Pa. Super. 2004), an uninsured motorist claim, which bears more
resemblance to first-party claims than not, the court emphasized collateral
conduct of the insurer in misleading the plaintiff’s counsel about amounts
of coverage and in putting the insured-claimant under surveillance.
259 For a summary of some of the arguments over at-will employment
and support for contract-based good faith obligations, see Stewart J.
Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment
at Will, 92 Mich. L. Rev. 8 (1993).
260 Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549, 62
A.L.R.3d 264 (1974).
261 Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273 (1980)
(limiting the bad faith approach of Monge v. Beebe Rubber Co., to
discharge in violation of public policy). See Mont. Code Ann. § 39–2–904.
Courts sometimes say that the claim lies for breach of “implied covenants
of good faith and fair dealing” but then add that the discharge must violate
an important public policy. See Lewis v. Cowen, 165 F.3d 154 (2d Cir.
1999).
262 Jaynes v. Centura Health Corp., 148 P.3d 241 (Colo. Ct. App.
2006); Ballalatak v. All Iowa Agric. Ass’n, 781 N.W.2d 272, 275 (Iowa
2010) (“the employee must show: (1) existence of a clearly defined public
policy that protects employee activity; (2) the public policy would be
jeopardized by the discharge from employment; (3) the employee engaged
in the protected activity, and this conduct was the reason for the
employee’s discharge; and (4) there was no overriding business
justification for the termination”).
2011 & Supp.) for citations and a fuller discussion.
264 Id. §§ 704–706.
265 Restatement (Second) of Torts § 871 cmt. f (1979) (proposing
general liability for threats of unlawful conduct that result in interference
with a legally protected property interest).
266 E.g., International Paper Co. v. Whilden, 469 So.2d 560 (Ala.
1985); Kelso v. McGowan, 604 So.2d 726, 732 (Miss. 1992); Troutman v.
Facetglas, Inc., 281 S.C. 598, 316 S.E.2d 424 (Ct. App. 1984).
267 Superior bargaining power on one side and relative weakness on
the other is often mentioned. E.g., U.S. v. Bethlehem Steel Corp., 315 U.S.
289, 300, 62 S.Ct. 581, 587 (1942). For types of threats that are actionable,
see 3 Dobbs, Hayden & Bublick, The Law of Torts § 708 (2d ed. 2011 &
Supp.).
268 W. R. Grimshaw Co. v. Nevil C. Withrow Co., 248 F.2d 896, 904
(8th Cir. 1957).
2011 & Supp.).
1151
Chapter 44
ECONOMIC HARM TO INTANGIBLE

INTERESTS BY CONVERSION OR
SPOLIATION
Analysis
A. CONVERSION OF INTANGIBLE ECONOMIC INTERESTS
§ 44.1 Expanding the Traditional Conversion Action
B. SPOLIATION OF EVIDENCE
§ 44.4 Intentional Spoliation by a Party to Litigation
__________
A. CONVERSION OF INTANGIBLE ECONOMIC

INTERESTS
§ 44.1 Expanding the Traditional Conversion
Action
Traditional rules. Under the traditional common law rules, the
action for conversion would lie only for interference with rights in
tangible personal property.1 Thus traditionally no conversion
action lies for interference with intangible rights, such as choses in
action,2 or for the use of the plaintiff’s ideas.3 In the same way,
infringement of a copyright or trademark, interference with
business opportunities,4 the “taking” of one’s personality or
performance for commercial purposes,5 the misappropriation of
trade secrets, and the misappropriation of ideas6 may all be torts,
but under the traditional rule such actions could not constitute
conversion. The rule limiting the conversion action is thus not
necessarily a claim-destroying rule. Instead it is often merely a
channeling rule, guiding claims for stand-alone economic harm to
the most appropriate tort analysis.7
1152
Expansion of conversion: overview. Courts have expanded the

conversion action to permit recovery for economic torts in certain
cases. Some of the cases that have done so have merely made
awards equivalent to restitution of the defendant’s gains rather
than awards of consequential or punitive damages.8 Most of the
other expansive cases protect the plaintiff’s economic interest by a
conversion action when that interest can be conceived of as one
that is functionally equivalent to an interest in tangible property.
A tangible property interest in this sense includes an equitable
interest in tangible property offering protection by specific
performance or constructive trust; legal rights fully controlled by a
tangible document (like a bearer bond); interests that are
themselves bought, sold or otherwise exchanged in a market; and
information such as computer data and programs that function in
the business world like a tangible document. Otherwise, the claim
that a pure economic interest has been converted is likely to be
rejected, either because the tort is limited to redress only property-
like interests, or because some version of the economic loss rule
prevents recovery. Thus spoliation of evidence, even when it is a
tort, is not conceived as conversion.9
Documents embodying rights; negotiable instruments. One of the
more clearly justified departures from the traditional rules comes
when the defendant takes or wrongly retains a negotiable
instrument that is not merely evidence of a right but that can itself
be bought and sold as an embodiment of the right to collect. A
promissory note payable to the plaintiff, for example, represents
the plaintiff’s rights to recover money from the maker of the note
and courts have generally recognized that conversion of such a note
is conversion of the right it embodies, that is, conversion of the
value of the note, not merely the value of the paper it is written
on.10 A deed to land, once recorded, has a similar quality and its
recording may count as a conversion.11 Checks, bonds, stock
certificates and other similar instruments have been treated the
same way,12 and the plaintiff can recover for their conversion,
provided she was entitled to possession of the instrument.13 The
measurement of damages in such cases, however, frequently
presents a problem; a promissory note for $100 is not necessarily
worth that sum, and certainly is not if the maker is insolvent or
has a good defense.14 In some instances, too, the plaintiff’s claim
will be for negligence rather than conversion, as where the plaintiff
suffers a loss when the defendant bank allows deposit of a check to
the account of a person other than the payee.15
1153

Money. Specific coins or bills are subject to conversion if they
are identifiable as the particular coins or bills taken from the
plaintiff.16 The old idea that money could be converted only if it
was in a “bag”17 now seems obsolete. Today, it might be plausible
to say that when the defendant commits an affirmative act and
physically takes control of particular paper monies he is guilty of
conversion, even if the particular bills or coins cannot be
identified,18 although perhaps not to gain priority over other
creditors with respect to the unidentified monies. Certainly the
plaintiff is entitled to recover on restitutionary grounds to prevent
the defendant’s unjust enrichment, even if not on the basis of
conversion.19
Accounts or funds. Interference with accounts or “funds” can be
conceptualized in various ways. Where the defendant wrongfully
attached a bank account, the Colorado court treated the claim as
one for “wrongful attachment,” which it considered to be a specific
kind of interference with contract, not conversion.20 But it is also
plausible to treat some accounts or “funds” as subject to conversion
even where the defendant does not physically withhold a
negotiable instrument from its owner. If the defendant, without
authority, transfers funds from the plaintiff’s account to his own or
another account, he is a converter21 even though the transfer is
purely a bookkeeping entry, not a physical movement of cash.22
Some courts have said that a fund or account may be subject to
conversion if the defendant is under an obligation to treat specific
funds in a particular manner,23 although stated this broadly the
proposition may conflict with the usual rule that breach of a
contract or non-payment of a debt does not qualify.24
1154
Mispayment of a negotiable instrument like a check by paying

the wrong person on a forged indorsement or by other
mispayments is an example.25 Likewise, if an identified fund of
money represented by a check belongs to the plaintiff, deposit of
the check to the defendant’s account,26 or the defendant’s refusal
release money represented by account,27 is a conversion.
Relationships of the parties sometimes matters. One who
deposits funds in a bank is a creditor, not a bailor of the funds,28
and is thus likely to be limited to a recovery in contract or under
restitutionary principles.29 Liability based on transfer of a fund by
bookkeeping (or computer) entry is consonant with commercial
practice that treats such entries as an effective transfer, and
consonant as well with the protection given to account transfers
and the like under constructive trust and other equitable rules.30
The plaintiff has no claim for conversion merely because the
defendant has a bank account and owes the plaintiff money. To
support a conversion action, the plaintiff must show that the
defendant in some way transferred the plaintiff’s funds to the
defendant’s accounts,31 or that the defendant retained in his
account funds specifically belonging to the plaintiff.32
Negotiable instruments. So far as the putative conversion of an
account is accomplished through negotiation, endorsement,
transfer or payment of a negotiable instrument, the intricacies of
banking practice complicate the picture both on the question of
liability and on its basis. UCC provisions are likely to determine
which parties are entitled to recover and whether and on what
conditions recovery is to be
1155
permitted at all.33 And, once again, restitution may prove to be

a quite satisfactory alternative.34
Contracts between the parties potentially affect liability for
conversion of economic interests in two major ways, one of which
favors defendants and one of which favors plaintiffs.
Defendant-favorable provisions. First, the defendant does not
convert either a tangible or intangible interest of the plaintiff’s if
the defendant is acting rightfully. A contract provision favorable to
the defendant may show that the defendant’s action with respect to
the plaintiff’s economic interest is rightful, not wrongful. A pledge
of a tangible chattel as security for a debt is an easy example. The
defendant is not acting wrongfully in retaining the pledged goods
until the debt is paid; that is the very thing the pledge contract
contemplates.35 The same is true with economic rights. If the
defendant retains a down payment when the plaintiff breaches a
contract to purchase, that is no conversion if the contract lawfully
permits the retention.36
The defendant-favorable contract effect is circumscribed by the
statutory or common law public policy against the use of force to
recover property, so the defendant who might retain the down
payment of the contract breacher would have no privilege to take
an equivalent sum by hacking into the breacher’s bank account.37
It may be circumscribed as well by the sometime rule for bailments
that a bailee cannot avoid liability for conversion or damage to
bailed property by writing an exculpatory clause into the bailment
contract.38
Plaintiff-favorable provisions. Second, a plaintiff-favorable
contract provision may obligate the defendant to provide the
plaintiff with some kind of economic advantage. If the contract
requires the defendant to return tangible property, title to which is
in the plaintiff, the plaintiff may have an option to sue in tort for
conversion or on the contract.39 However, if the contract requires
the defendant to provide some purely economic benefit, as distinct
from a return of the plaintiff’s property, the conversion action may
not be an option. For one thing, the contract right may not count as
a “property” interest, which is required for conversion.40 For
another, a recovery in conversion may fail to honor the contract
provisions between the parties.
1156
Courts commonly say that the defendant who fails to pay a debt
is not a converter of the money withheld; he is simply liable or not
according to the contract’s terms,41 unless he commits some
independently tortious act. Thus a buyer of natural gas who
underpays the seller because the buyer wrongly attributes poor
quality to the gas may be in breach of contract but cannot be held
for conversion of the sums due to the seller.42 This rule can be
viewed as an insistence that conversion rules, if applied to pure
economic interests at all, should be limited to interests that bear
more similarity to property interests than to contract rights.
Economic loss rule. The rule can also be viewed belonging to the
cluster of economic loss rules, which generally reject tort liability
for non-physical economic harms on issues within the scope of a
contract between the parties.43 A few decisions reject the economic
loss rule in cases of intentional torts such as conversion.44 Others
have effectuated the economic loss rule by limiting the plaintiff to a
contract rather than a conversion claim,45 allowing the conversion
action only if the defendant has breached a duty that is
independent of or extraneous to the contract.46 The same policy
also makes an appearance in restitution doctrine.47 However, it is
important to observe that at least some contract provisions can be
given due respect even if the action is one in conversion, because
even in a conversion action, the defendant who acts in accord with
the contract is not a converter.
Practical effect of the limit to contract. The practical effect of
limiting the plaintiff to a contract claim may include the following:
(1) the statute of limitations has run on contract claims, though not
on tort claims;48 (2) contract damages are more limited, notably in
their basic measure, in their disallowance of punitive and
emotional distress damages, and in their substitution of liquidated
damages for actual damages;49 (3) other contract provisions may
eliminate the possibility of practical recovery under the
1157
contract, as where a contract provision would require the

plaintiff to indemnify the defendant for any losses the defendant
incurs in contract liability.50
B. SPOLIATION OF EVIDENCE
§ 44.4 Intentional Spoliation by a Party to
Litigation
Rejecting the tort claim. When a party to pending or probable
litigation intentionally destroys or otherwise spoliates evidence
that substantially impairs the opposing party’s ability to prove her
claim, the victim of intentional spoliation sometimes asserts a tort
claim against the spoliator. This claim seems not to have been
thought of as a claim for conversion of intangible rights or as an
interference with the judicial process. It is sometimes thought of as
a new tort and a cause of action for spoliation, although all such
claims appear to be particular instances of an older tort—
intentional interference with economic prospects. A number of
courts reject this independent tort claim for spoliation of evidence
by a party or prospective party to litigation.51
Reasons for rejecting the tort; alternative remedies. Several
reasons are given for this outcome.52 One major argument against
tort liability for spoliation is that other sanctions and remedies are
available against parties who destroy evidence. In particular, the
trial judge in the underlying litigation in which the lost evidence is
relevant may provide a remedy. The judge may allow the victim to
introduce evidence that the defendant destroyed or otherwise
spoliated evidence, then give a jury instruction that, if intentional
spoliation is established, the jury may presume or infer that the
spoliated evidence was favorable to the victim and unfavorable to
the spoliator.53
Cases may apply this approach not only cases of destroyed or
secreted physical evidence but also to “missing witness” cases in
which one party fails to produce a witness who apparently knows
all the relevant facts. In fact, concerns about spoliation lie behind
several kinds of res ipsa loquitur cases.54 In a case of plaintiff-
spoliation,55 the plaintiff’s investigators, examining a vehicle
before the manufacturer defendant was notified of its involvement
in the plaintiff’s injury, removed a part for scrutiny, making it
impossible to determine whether it had been misaligned. When
misalignment later became a critical issue, the court held that the
plaintiff could not use res ipsa loquitur, partly because of
1158
her investigator’s interference with the evidence, a result that

may or may not be comparable to the spoliation inference against a
defendant spoliator.
Other in-trial sanctions without a separate tort suit are
possible, too. In Massachusetts, a trial judge remedied the
spoliation by imposing a sanction that prevented the spoliator from
offering his own evidence and argument on certain related issues,
then permitting the adverse inference as well.56 If the plaintiff
destroys evidence, such as a product manufactured by the
defendant and claimed to be defective, the court might conceivably
even dismiss the plaintiff’s claim altogether.57 For the courts
rejecting the tort claim for spoliation, such potential sanctions and
remedies are sufficient.
Recognizing the tort claim. Some courts, however, have held
that where vital or critical evidence is impaired, concealed, or
destroyed, such intentional spoliation by a party or prospective
party to probable litigation is actionable under existing tort
principles58 or as a separate tort for spoliation.59 One argument for
this position is that intentional spoliation of vital evidence “is
misconduct of such a serious nature, the existing remedies are not
a sufficient response,” so that an independent tort action, with its
potential for punitive damages, is permissible or even desirable in
the interests of justice.60 And spoliation can “destroy fairness and
justice” and increase the costs of litigation as parties attempt to
reconstruct evidence.61
The duty not to spoliate evidence, however, is discharged if the
alleged spoliator has given the other party a full and fair
opportunity to examine the evidence.62 (The same result could be
reached in jurisdictions that predicate the spoliation action on an
intent to defeat the opposing party’s action, since destruction of
evidence after the opposing party has a full and fair chance to
inspect the evidence would not normally evince such intent.) On a
more controversial note, some authority has played with the idea
that the spoliation claim must be dismissed unless the plaintiff has
actually pursued the underlying claim and lost for lack of the
evidence destroyed by the defendant.63 Other
1159
authority has declined “to require a spoliation plaintiff to

pursue a futile lawsuit” as a prerequisite to the spoliation claim.64
Inadequacy of alternative sanctions against a party. When it
comes to destruction by non-parties, the problem is surprisingly
complex. An unrelated third person’s destruction of evidence
clearly does not warrant a presumption against the defendant in
the initial action who had nothing to do with the destruction.65 In
that case, a tort action against the spoliator may be the plaintiff’s
only hope of compensation.
Ownership of destroyed evidence. One factor that may be
important is ownership of the destroyed evidence. If the physical
evidence is property rightfully owned or possessed by the plaintiff,
T’s intentional destruction will ordinarily be actionable as a
conversion or trespass, but proximate cause and reasonable
certainty rules of damages may tend to limit liability to the value
of the property as a tangible good unless T knew of its importance
in existing or probable litigation and a separate spoliation action is
permitted.
Split in authority. Some authority has permitted an action for
intentional spoliation against a third person who has actual
knowledge that the destroyed evidence is important in the
plaintiff’s litigation.66 But other courts have rejected the
intentional spoliation action against a non-party.67 Even where the
claim of spoliation is recognized against a non-party, the claim may
fail in particular cases because the defendant was, in effect,
privileged to dispose of the evidence on the facts of the case,
because the plaintiff herself failed to take reasonable steps to
preserve or inspect the evidence,68 because a party who could be
sanctioned was partly responsible for the destruction along with
the non-party,69 or because of other particular circumstances.70
1160

Liability for negligent interference with the plaintiff’s lawsuit
prospects is perhaps even more problematical than liability for
intentional interference. As with intentional interference, courts
are likely to label damages speculative because of uncertainty
whether the lost evidence would in fact have produced a winning
case for the plaintiff or even whether it would have helped the
plaintiff at all.71
In addition, in the absence of a special exception, tort law
seldom imposes a duty of care to protect strangers from stand-
alone economic harm.72 Likewise under the nonfeasance rules,
people in general have no duty to act positively to aid others.73 If
the spoliator is a party or prospective party to the initial suit, a
duty to use reasonable care might conceivably be based on his
special control of evidence in a suit to which he is a party, or on the
fact that destruction of evidence not only harms the other party but
affirmatively aids the spoliator. But the argument that trial
sanctions against a party to the suit will be sufficient protection for
the plaintiff may bar the claim for negligence spoliation as well as
for the intentional variety.
If the negligent spoliator is neither a party nor aligned in
interest with a party, he can argue the nonfeasance and economic
loss rules against any duty to use care to protect a stranger, even if
he is under a duty not to intentionally destroy evidence. Courts
would ordinarily impose a duty of care only if the non-party
defendant undertook to preserve the evidence,74 if he stood in a
fiduciary75 or other special relationship to the plaintiff,76 if he had
a statutory duty to preserve it77 or if he had been subjected to a
court order
1161
requiring him to do so.78 Consequently, liability of a third

person for negligent interference with evidence is frequently
rejected.79
Causation and damages raise difficult issues in all spoliation
cases. The plaintiff must contend that the spoliator has destroyed
evidence that would have allowed the plaintiff to recover in the
underlying suit and that she cannot recover because the evidence
is missing. But if the plaintiff cannot prove what the evidence
would show, she cannot possibly prove that it would have saved
her suit or defense. If she can prove indirectly what the evidence
would have shown, she could presumably have proved the same
thing in the underlying suit. Courts that reject the spoliation claim
completely usually point to this problem of proving factual
causation.80
Relaxing the but-for causation rule—value-of-the-chance
recovery. Perhaps some of the courts that recognize the tort claim
assume that the normal burden of proof is to be relaxed. The
District of Columbia Court has specifically said that the plaintiff
need only prove “that the underlying lawsuit was significantly
impaired, that the spoliated evidence was material to that
impairment, and that the plaintiff enjoyed a significant possibility
of success in the underlying claim.”81 Recovery under the District of
Columbia rule would then be limited to the value of the chance of
recovery.82
Relaxing the but-for causation rule—presumption of causation.
Other courts have allowed the plaintiff to recover all her damages.
West Virginia has held that the spoliated evidence must be found
to have been “vital to a party’s ability to prevail in a pending or
potential civil action,” but that once this and other elements of the
claim have been proved, “there arises a rebuttable presumption
that but for the fact of the spoliation of evidence, the party injured
by the spoliation would have prevailed in the pending or potential
litigation.”83 The Connecticut Court thought that while the
plaintiff may get a windfall by prevailing in the spoliation claim
when—possibly—she could not have prevailed in the underlying
claim, requiring the plaintiff to prove intentional and bad faith
destruction of the evidence minimized that danger. Even if some
risk of windfall remained, the court said, “the defendant should
bear this risk in light of its egregious litigation misconduct.”84 It
may be added that when the defendant creates a definite risk of
loss by misconduct that also renders proof of causation difficult,
tort cases in other areas have also been willing to permit findings
of causation if the evidence is otherwise satisfactory.
________________________________
1 § 6.5.
2 Shebester v. Triple Crown Insurers, 826 P.2d 603 (Okla. 1992).
3 Matzan v. Eastman Kodak Co., 134 A.D.2d 863, 521 N.Y.S.2d 917
(1987).
4 H.J., Inc. v. International Telephone & Telegraph Corp., 867 F.2d
1531 (8th Cir. 1989) (manufacturer who terminated distributor and sold
directly to dealers was not liable for “conversion” of the dealer network).
5 Ippolito v. Lennon, 150 A.D.2d 300, 542 N.Y.S.2d 3 (1989) (rights
in a performance, no conversion action unless right is merged in and
identified with a document).
6 Bloom v. Hennepin County, 783 F. Supp. 418, 440 (D.Minn. 1992)
(medical procedure or “protocol” allegedly misappropriated by defendants,
intellectual property law, not conversion law, should govern).
7 See Dan B. Dobbs, An Introduction to Non-Statutory Economic
Loss Claims, 48 Ariz. L. Rev. 713, 722 (2006).
2011 & Supp.).
9 See §§ 44.4 to 44.7.
10 Teper v. Weiss, 115 Ga. App. 621, 155 S.E.2d 730 (1967); Lappe
and Associates, Inc. v. Palmen, 811 S.W.2d 468 (Mo. App. 1991); Save
Charleston Foundation v. Murray, 286 S.C. 170, 333 S.E.2d 60 (Ct. App.
1985); United Leasing Corp. v. Thrift Ins. Corp., 247 Va. 299, 440 S.E.2d
902 (1994).
11 Montano v. Land Title Guarantee Co., 778 P.2d 328 (Colo. App.
1989) (deed from A to C held by bailee in three-party transaction; bailee
recorded it without authority, whereupon C borrowed money on it; B, who
was to pay A left for parts unknown; held, the bailee is a converter).
12 Carmichael v. Halstead Nursing Center, Ltd., 237 Kan. 495, 701
P.2d 934 (1985) (corporate defendant, with name similar to payee’s,
deposited check in its own bank account; this was a conversion); Dayton
Construction, Inc. v. Meinhardt, 882 S.W.2d 206 (Mo. App. 1994) (specific
checks); see UCC § 3–420 (with certain exceptions, “[t]he law applicable to
conversion of personal property applies to instruments”).
13 Great Lakes Higher Education Corp. v. Austin Bank of Chicago,
837 F.Supp. 892 (N.D.Ill. 1993).
14 See Annotation, Measure of damages for conversion or loss of
commercial paper, 85 A.L.R.2d 1349 (1962).
15 Chicago Title Ins. Co. v. Allfirst Bank, 394 Md. 270, 905 A.2d 366
(2006).
16 In Moody v. Smith, 899 F.2d 383 (5th Cir. 1990), the defendant
was held to have converted a pedigreed 1879 gold four-dollar coin worth
between $75,000 and $88,000. In Little v. Gibbs, 4 N.J.L. 211 (1818), the
court thought identification by numbers on bills would suffice: “If money or
cash be lost or stolen the loser cannot maintain trover to recover it,
because it cannot be distinguished. But notes and bank bills may be
recovered in such an action, because the interest of the owner in them is
sufficient, and they may be distinguished by names, marks and numbers
on them.”
17 See Kinaston v. Moor, Cro. Car. 89, 79 Eng.Rep. 678 (1627)
(perhaps suggesting that the bag was only important as one piece of
evidence showing that it was the plaintiff’s money held by the defendant,
but an unnecessary piece of evidence if the evidence showed that the
defendant took the money directly from the plaintiff); Campbell v.
Naman’s Catering, Inc., 842 So.2d 654 (Ala. 2002) (“earmarked money or
specific money capable of identification, e.g., money in a bag or coins or
notes which have been entrusted to defendants’ care,” but recognizing that
monies in a special account could be subject to conversion).
18 Cf. Lappe and Associates, Inc. v. Palmen, 811 S.W.2d 468
(Mo.App. 1991) (check payable to defendant for one purpose, fund diverted
to another purpose, held, conversion).
19 Assumpsit, to use the name of an old form of action, would lie for
money received by the defendant that belongs to the plaintiff. See 1 Dan B.
20 Vanderbeek v. Vernon Corp., 50 P.3d 866 (Colo. 2002).
21 Kenet v. Bailey, 679 So.2d 348 (Fla. Dist. Ct. App. 1996) (attorney
transferred client’s funds from trust-escrow account to himself, he is a
converter and punitive damages may be recoverable); Evans v. Dean
Witter Reynolds, Inc., 116 Nev. 598, 5 P.3d 1043 (2000) (approving multi-
million punitive damages award and holding that brokerage firm guilty of
aiding and abetting or “conspiring” to convert assets was liable without
offsets for amounts repaid to owners of assets by other tortfeasors);
Methodist Manor of Waukesha, Inc. v. Martin, 255 Wis. 2d 707, 647
N.W.2d 409 (Ct. App. 2002) (allegation that defendant diverted monies
from his mother’s bank account, which monies were required by law to be
paid to nursing home supporting mother, is an allegation of conversion).
22 Brown v. Oklahoma State Bank & Trust Co. of Vinita, 860 P.2d
230 (1993); see also UCC § 3–420 (with certain exceptions, “[t]he law
applicable to conversion of personal property applies to instruments”
covered by the UCC).
23 Hoffman v. Unterberg, 9 A.D.3d 386, 780 N.Y.S.2d 617 (2004),
abrogated on other grounds, Tzolis v. Wolff, 10 N.Y.3d 100, 855 N.Y.S.2d 6
(2008).
24 § 44.3.
25 UCC § 3–420; Stromberg v. Moore, 170 S.W.3d 26 (Mo. App. 2005);
Restatement Second of Torts § 241A (1965); cf. Decatur Auto Ctr. v.
Wachovia Bank, 276 Ga. 817, 583 S.E.2d 6 (2003) (customer paid bank to
stop payment on customer’s check, but bank knowingly paid the check
anyway, conversion); Stebbins v. North Adams Trust Co., 243 Mass. 69,
136 N.E. 880 (1922) (under a system in which the passbook was required
to make a withdrawal and in which its assignment operated to assign the
account and not merely the book itself, defendant was liable for the
amount in the account).
26 Commonwealth v. Caparella, 70 Mass. App. Ct. 506, 874 N.E.2d
682 (2007) (defendant deposited checks payable to employer in a secret
account defendant created in employer’s name with defendant in control of
the account; this was criminal embezzlement which is conversion by one in
a position of trust); In re Baez, 42 A.D.3d 157, 836 N.Y.S.2d 591 (2007)
(attorney deposited escrow check into his personal account; he was a
converter and suspended from practice).
27 Giles v. General Motors Acceptance Corp., 494 F.3d 865 (9th Cir.
2007) (defendant held money due to the plaintiff in a separate account,
then withheld the money, held, a conversion).
28 See Leather Manufacturers’ Nat’l Bank v. Merchants’ Nat’l Bank,
128 U.S. 26, 34, 9 S.Ct. 3, 4, 32 L.Ed. 342 (1888) (because bank does not
owe depositor a refund of specific funds, only a money equivalent).
29 See Gossels v. Fleet Nat’l Bank, 453 Mass. 366, 372, 902 N.E.2d
370, 378 (2009) (emphasizing that bank is a debtor to its depositor, not a
bailee, and that the customer has no right to specific funds transferred by
the bank; hence the bank transferring funds is not a converter).
30 For example, a constructive trust may be imposed on a bank
account, although the account is not a separate accumulation of money but
only a bookkeeping credit to the owner. See Dan B. Dobbs, Law of
Remedies § 6.1(4) (2d ed. 1993).
31 See Citadel Management, Inc. v. Telesis Trust, Inc., 123
F.Supp.2d 133 (S.D.N.Y. 2000).
32 See Giles v. General Motors Acceptance Corp., 494 F.3d 865 (9th
Cir. 2007).
33 E.g., UCC § 3–420 (setting forth who may sue for conversion of an
instrument); setting § 4–401 & 4–402 (wrongful dishonor of a check;
limitations on damages). Uniform statutes have addressed negotiable
instrument rules for well over a century in versions that have been revised
at various times. Lawyers may need to construe case law in light of the
version in force when cases were decided. See Philip E. Cleary, Statutory
Overkill: Why Section 3–420(a) of the Uniform Commercial Code May Not
Really Mean What It Says About the Issuer’s Cause of Action for
Conversion of a Negotiable Instrument, 39 UCC L.J. 399 (2007).
34 See, e.g., B.D.G.S., Inc. v. Balio, 8 N.Y.3d 106, 861 N.E.2d 813,
829 N.Y.S.2d 449 (2006).
35 See §§ 6.9 & 6.11.
36 E.g., Bradley v. Sanchez, 943 So.2d 218 (Fla. Dist. Ct. App. 2006).
37 See § 7.14 (forceful repossession of chattels).
38 § 6.10.
39 See § 44.1. The plaintiff in a tangible chattel case may have the
option to sue for negligence. § 6.11.
40 See § 6.5.
41 In re McDaniel, 368 B.R. 515 (M.D. La. 2007); Morris v. National
Western Life Ins. Co., 208 Ga. App. 443, 430 S.E.2d 813, 815 (1993); cf.
Shebester v. Triple Crown Insurers, 826 P.2d 603 (Okla. 1992) (insurer
allegedly paid wrong person, held not a conversion).
42 Grynberg v. Questar Pipeline Co., 70 P.3d 1 (Utah 2003).
43 See Ch. 41.
44 Indemnity Ins. Co. of N. Am. v. American Aviation, Inc., 891 So.2d
532 (Fla. 2004) (“Intentional tort claims such as fraud, conversion,
intentional interference, civil theft, abuse of process, and other torts
requiring proof of intent generally remain viable either in the products
liability context or if the parties are in privity of contract.”), receded from
on other grounds, Tiara Condominium Ass’n v. Marsh & McLennan
Companies, Inc., 110 So.3d 399 (Fla. 2013) (economic loss rule applies only
in products context).
45 See Pittsburgh Construction Co. v. Griffith, 834 A.2d 572 (Pa.
Super. 2003) (homeowner withheld escrowed funds due builder under
contract, but builder’s claim was only for breach of contract, not
conversion); see also Pioneer Commercial Funding Corp. v. American
Financial Mortgage Corp., 855 A.2d 818, 827 (Pa. 2004) (although the
plaintiff’s claim was styled as one of conversion, commercial law rules
trumped conversion rules by providing a justification for the defendant’s
dominion of the disputed property).
46 See, e.g., Giles v. General Motors Acceptance Corp., 494 F.3d 865
(9th Cir. 2007) (at least where a duty is imposed by law independent of the
contract duty, an economic loss claim can proceed in tort, permitting a
claim for conversion of funds).
47 Independently of tort rules, restitution doctrine refuses to permit
restitution for breach of contract where the defendant’s only remaining
obligation is to pay the plaintiff money. See, e.g., 3 Dan B. Dobbs, Law of
Remedies § 12.7(5) (2d ed. 1993). The effect of this rule is to limit the
plaintiff to the contract price and to prevent recovery of whatever gains
the defendant made by reason of his breach.
48 E.g., Grynberg v. Questar Pipeline Co., 70 P.3d 1 (Utah 2003).
49 Cf. Bradley v. Sanchez, 943 So.2d 218 (Fla. Dist. Ct. App. 2006)
(forfeiture of down payment under contract provision permitted, hence no
conversion for seller to keep the down payment).
50 See Giles v. General Motors Acceptance Corp., 494 F.3d 865 (9th
Cir. 2007).
51 Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349 (Ind. 2005);
Fletcher v. Dorchester Mutual Ins. Co., 437 Mass. 544, 773 N.E.2d 420
(2002); Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124 (Miss. 2002);
Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998). See generally Thomas G.
Fischer, Intentional Spoliation of Evidence, Interfering With Prospective
Civil Action as Actionable, 70 A.L.R.4th 984 (1990).
52 Among them: (1) It would be difficult to be certain that, even
armed with the lost evidence, the victim would have prevailed in the
initial dispute. See § 44.7. (2) It has also been argued that, in some cases,
the spoliator is merely disposing of his own property and should have a
right to do that. But the spoliator’s property interest—when he has one—
does not prevent sanctions and inferences adverse to the spoliator, e.g.,
Gath v. M/A-Com, Inc., 440 Mass. 482, 802 N.E.2d 521 (2003), so it seems
unclear why it should bar a separate tort claim. (3) Not every piece of
evidence is important enough to warrant a tort suit over its destruction,
but it will be hard to know whether evidence that has been destroyed is
important or not and hard to draw the line between important and
unimportant in any event.
53 E.g., Banks v. Sunrise Hosp., 102 P.3d 52 (Nev. 2004); Murray v.
Developmental Servs. of Sullivan County, Inc., 149 N.H. 264, 818 A.2d 302
(2003); Jerista v. Murray, 185 N.J. 175, 883 A.2d 350 (2005). The
foundation for the adverse inference is that the spoliator knew or should
have known that the evidence was important in actual or potential
litigation and then intentionally destroyed it. See Wal-Mart Stores, Inc. v.
Johnson, 106 S.W.3d 718 (Tex. 2003).
54 See generally §§ 13.3 to 13.6.
55 Lawson v. Mitsubishi Motor Sales of America, Inc., 938 So.2d 35
(La. 2006).
56 Gath v. M/A-Com, Inc., 440 Mass. 482, 802 N.E.2d 521 (2003)
(affirming the trial judge’s decision, nothing that the adverse inference
piled on the prohibition of evidence could be justified because the
defendant may have evaded the prohibition).
57 Verchot v. General Motors Corp., 812 So.2d 296 (Ala. 2001) (after
brakes failed, plaintiff’s insurer disposed of the car manufactured by
defendant; court appears to treat this as if the plaintiff herself had
disposed of the car; dismissal upheld).
58 E.g., Allstate Ins. Co. v. Dooley, 243 P.3d 197 (Alaska 2010)
(where evidence is intentionally concealed until after the entry of
judgment and the expiration of the time to seek relief from that judgment,
the proper cause of action is fraudulent concealment of evidence, not
spoliation; if evidence is completely destroyed, then an action for spoliation
might lie); Rosenblit v. Zimmerman, 166 N.J. 391, 766 A.2d 749 (2001)
(“fraudulent concealment”).
59 E.g., Williams v. BASF Catalysts LLC, 765 F.3d 306 (3d Cir. 2014)
(N.J. law); Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d
1165 (2006); Davis v. Wal-Mart Stores, Inc., 93 Ohio St. 3d 488, 756
N.E.2d 657 (2001). Some courts say the plaintiff must prove the
“underlying claim was significantly impaired due to the spoliation of
evidence,” Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998), the
same essential idea as the requirement in other formulations that the
spoliated evidence must be “vital” in establishing the underlying claim.
60 State v. Carpenter, 171 P.3d 41 (Alaska 2007); Hannah v. Heeter,
213 W.Va. 704, 584 S.E.2d 560 (2003).
61 Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165
(2006).
62 American Family Mut. Ins. Co. v. Golke, 319 Wis.2d 397, 768
N.W.2d 729 (2009).
63 Mayfield v. Acme Barrel Co., 258 Ill. App.3d 32, 629 N.E.2d 690
(1994) (reflecting Illinois decisions that a spoliation claim is premature
until the plaintiff has tried and lost the underlying tort claim).
64 Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 233, 905 A.2d
1165, 1172 (2006); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C.
1998).
65 Cf. Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 652 N.E.2d 267, 209
Ill.Dec. 727 (1995) (refusing also to apply a presumption against the third
person that the loss of evidence caused loss of the suit).
66 Hannah v. Heeter, 213 W.Va. 704, 584 S.E.2d 560 (2003)
(negligent spoliation is a stand-alone tort if third person had a duty to use
care to preserve evidence, as where the duty is assumed by undertaking;
intentional spoliation by a third person is also actionable); cf. Lips v.
Scottsdale Healthcare Corp., 224 Ariz. 266, 229 P.3d 1008 (2010) (holding
that no “specific intent … to disrupt or injure the plaintiff’s lawsuit” had
been shown, and stating that such an intent would be required if the tort
were to be recognized).
67 Temple Community Hospital v. Superior Court, 20 Cal.4th 464, 84
Cal.Rptr.2d 852, 976 P.2d 223 (1999); Fletcher v. Dorchester Mutual
Insurance Company, 437 Mass. 544, 773 N.E.2d 420 (2002); Dowdle
Butane Gas Co., Inc. v. Moore, 831 So.2d 1124 (Miss. 2002); Thomas G.
Fischer, Intentional Spoliation of Evidence, Interfering with Prospective
Civil Action, as Actionable, 70 A.L.R.4th 984 (1990).
68 Dardeen v. Kuehling, 213 Ill.2d 329, 821 N.E.2d 227, 290 Ill.Dec.
176 (2004); Hennessey v. Restaurant Assocs., Inc., 25 A.D.3d 340, 807
N.Y.S.2d 349 (2006).
69 Cf. Ortega v. City of New York, 9 N.Y.3d 69, 876 N.E.2d 1189, 845
N.Y.S.2d 773 (suggesting this possibility).
70 In Glotzbach v. Froman, 854 N.E.2d 337 (Ind. 2006), the spoliator
was the employer of the deceased whose death arose out of employment
and was subject to workers’ compensation. By destroying the evidence, the
employer eliminated any hope of a claim by the estate against the
manufacturer of equipment that may have caused the employee’s death.
The court found workers’ compensation doubly important. First, it would
be in the employer’s interest to preserve the evidence against a
manufacturer whose liability might reduce the employer’s ultimate
workers’ compensation payout. Second, the workers’ compensation act was
intended to eliminate “satellite litigation against the employer,” and to
allow the spoliation claim would tend to undermine that purpose.
71 E.g., Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773
(2007); see § 44.7.
72 See Chapter 41.
73 See §§ 25.1 to 25.7.
74 Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998); Boyd v.
Travelers Ins. Co., 166 Ill.2d 188, 652 N.E.2d 267, 209 Ill.Dec. 727 (1995)
(saying that this is not a separate tort, but ordinary negligence, based on
an assumed duty of care); Callahan v. Stanley Works, 306 N.J.Super. 488,
703 A.2d 1014 (1997) (voluntary assumption of a duty to preserve would be
a jury question where defendant placed evidence tag on harmful
instrumentality then lost it); cf. Dardeen v. Kuehling, 213 Ill. 2d 329, 821
N.E.2d 227, 290 Ill. Dec. 176 (2004) (in a negligent spoliation claim, the
plaintiff must show a duty to preserve evidence arising by contract,
agreement, assumption of duty by voluntary undertaking or otherwise;
homeowner’s liability insurer had no duty to instruct homeowner to
preserve evidence of condition that caused harm to plaintiff). In New York,
even an oral undertaking by itself is not sufficient to create a duty. See
Metlife Auto & Home v. Joe Basic Chevrolet, Inc., 1 N.Y.3d 478, 807
N.E.2d 865, 775 N.Y.S.2d 754 (2004).
75 Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App.
3d 605, 624, 863 N.E.2d 743, 761, 309 Ill. Dec. 111, 129 (2007) (trustee lost
written guarantee of an obligation to the beneficiaries; trustee had “a duty
to preserve the guarantee based on the fiduciary relationship between the
trustee and the trust beneficiaries and upon the trustee’s obligation to
maintain all records that relate to the assets and interests of the trust”).
76 Hannah v. Heeter, 213 W.Va. 704, 584 S.E.2d 560 (2003) (no
general duty to preserve evidence; defendant will be liable only if he is
under a special duty by virtue of a contract, assumed duty, or special
relationship or otherwise).
77 As in Bondu v. Gurvich, 473 So.2d 1307 (Fla. Dist. Ct. App. 1984)
(allowing independent spoliation claim where hospital, which was a
defendant in the underlying negligence action, had a duty to preserve
medical records). The Florida Supreme Court later disapproved of first-
party spoliation claims, holding that adverse inferences or presumptions
against the spoliator could be used instead. Martino v. Wal-Mart Stores,
Inc., 908 So.2d 342 (Fla. 2005).
78 Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773 (2007)
(recognizing a duty of care, but holding nevertheless that no cause of
action exists against non-party for negligent spoliation).
79 Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 229 P.3d 1008
(2010); Martin v. Keeley & Sons, Inc., 2012 IL 113270, 365 Ill. Dec. 656,
979 N.E.2d 22 (2012); Richardson v. Sara Lee Corp., 847 So.2d 821 (Miss.
2003).
80 Temple Community Hospital v. Superior Court, 20 Cal.4th 464, 84
Cal.Rptr.2d 852, 976 P.2d 223, 229 (1999); Ortega v. City of New York, 9
N.Y.3d 69, 845 N.Y.S.2d 773 (2007).
81 Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998)
(emphasis added).
82 Id. (if plaintiff would have had 60% chance of recovering $100,000
given the missing evidence, plaintiff’s recovery for its destruction would be
$60,000).
83 Hannah v. Heeter, 213 W.Va. 704, 584 S.E.2d 560 (2003).
Although the presumption seems to establish that a loss occurred, it
appears that the plaintiff would still be required to prove the damages
that would have been recovered or recoverable. In that respect, the
spoliation claim would resemble the case-within-the-case proof in legal
malpractice cases. See §§ 45.6 & 45.12.
84 Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165
(2006).
1163
Chapter 45
LEGAL MALPRACTICE
Analysis
A. MALPRACTICE IN CIVIL MATTERS: PRIMA FACIE CASE
§ 45.2 Duty: Establishing a Client-Lawyer Relationship
§ 45.7 Liability to Non-clients
B. MALPRACTICE IN CIVIL MATTERS: DEFENSES
§ 45.8 Contributory Negligence/Comparative Fault
C. MALPRACTICE IN CIVIL MATTERS: DAMAGES
§ 45.12 Compensatory Damages in the Case-Within-a-Case Suit
D. MALPRACTICE IN CRIMINAL CASES
§ 45.14 Criminal Malpractice: Defenses and Immunities
__________
A. MALPRACTICE IN CIVIL MATTERS: PRIMA

FACIE CASE
Scope of malpractice. Legal malpractice is ordinarily an
economic tort, causing financial harm without personal injury or
property damage.1 The topic deals only with violation of a lawyer’s
duty arising out of the lawyer’s representation of a client.2 Legal
malpractice, in other words, entails breach of a duty created by the
contract3 or by the
1164
relationship with the client. Indeed, in some cases the claim

may be brought as a contract claim as well as a negligence claim,4
although where the breach of contract claim is based on the same
facts as a tort claim for legal malpractice, the former may be
stricken as redundant.5 In any event, the contract between client
and lawyer itself may not only create professional duties but limit
them.6 Because a lawyer is in a fiduciary relationship with a client,
the client may also be able to bring a separate claim for breach of
fiduciary duty against a lawyer, especially where the lawyer has
violated duties of loyalty or confidentiality; otherwise a separate
claim for breach of fiduciary duty may also be considered
redundant.7
Core duties. A lawyer’s core duties, often implicated in legal
malpractice cases, include the duties of professional care and
competence, but also includes the special duties of fiduciaries8 and
the duty to provide certain information to the client, somewhat
analogous to the obligation of medical practitioners to provide
patients with information as part of getting their “informed
consent” to treatment.9
Agency law and the malpractice claim. The legal malpractice
claim is often the only avenue of compensatory financial relief10 for
an aggrieved client, because of the rule that the client (as
principal) is bound by the negligent acts of her lawyer (as agent).11
That is, “a client is ordinarily chargeable with his counsel’s
negligent acts,”12 and “the sins of the
1165
lawyer as agent are visited upon the client as principal.”13 With

narrow exceptions,14 whatever error the lawyer’s malpractice
caused in the underlying case or transaction cannot usually be
undone in that underlying matter; the harm is done, and the client
is left with a decidedly second-best remedy—a civil suit for
damages against the lawyer.
Elements. To prove a legal malpractice claim, the plaintiff must
first prove the existence of a client-lawyer relationship that
establishes a duty on the lawyer’s part.15 The contract or
relationship between lawyer and client establishes the general
duty to provide professional care.16 Given the relationship, the
economic loss rule17 does not apply to eliminate liability for
negligence.18 A lawyer may also owe non-clients a duty of
professional care under narrow circumstances.19 The remaining
elements of the legal malpractice claim are those of other
negligence cases: The plaintiff must prove a breach of the duty,
factual and proximate cause,20 and damages.21 Additional
elements may be required in the case of criminal-case
malpractice.22 Expert testimony is usually required to determine
both the standard of care23 and its breach,24 and may be required
to establish that the breach caused the plaintiff’s harm.25
§ 45.2 Duty: Establishing a Client-Lawyer
Relationship
Where the plaintiff has signed a retainer agreement with the
lawyer, the lawyer clearly owes the client a duty of care with
respect to legal work done pursuant to that agreement. While most
client-lawyer relationships are formed by express agreement,26
such a relationship may also arise by implication. In those
situations and some others,
1166
the existence of a duty is indeed a live issue:27 without a client-

lawyer relationship, there is rarely a duty, and without a duty,
there can be no malpractice liability.28
Proving a relationship by implication. A client-lawyer
relationship may be implied by circumstances when a person
manifests to the lawyer his authorization for the lawyer to act on
his behalf, and the lawyer manifests his acceptance of that
authorization.29 The lawyer may manifest this acceptance
explicitly, or simply by failing to manifest such consent where she
knows or reasonably should know that the would-be client is
relying reasonably on the lawyer to provide legal services.30 In
essence, then, courts are looking for an implied contract between
client and lawyer for the lawyer to perform legal work.31 Many
courts have said that neither a unilateral nor an unreasonable
belief on the putative client’s part that the lawyer is representing
her will suffice to create a relationship.32 Indeed, many require
that there is first some “concrete communication by the plaintiff
requesting that the attorney represent him.”33 Courts agree also
that neither the payment of fees nor the signing of a retainer
agreement is necessary,34 although such facts are not irrelevant to
the inquiry as to whether a client-lawyer relationship has been
formed.35 While the existence of a duty is a question of law for the
court, a number of courts leave it to the jury to resolve any
contested issues of fact on this issue.36 Thus, in many of the cases
in which the existence of an implied client-lawyer relationship is in
question, the lawyer will be unable to escape on summary
judgment.37
1167
Representing entities. Issues of client identity sometimes arise

when a lawyer has been retained to represent a legal entity, such
as a corporation. Although the lawyer in such a situation is giving
legal advice to the entity through the entity’s constituents who are
acting within that capacity, the lawyer’s client is the entity itself,
not those individuals.38 Thus a lawyer representing an entity could
be sued for legal malpractice by the entity itself, but not by its CEO
or its General Counsel, let alone a lower-level employee or
shareholders.39 A lawyer may also represent constituents within
the organization, however, either by express agreement or by
implication.40 In that case both the entity and those constituents
would be owed a duty enforceable in a malpractice case.
Third-party fee payors. The rule that the payment of a lawyer’s
fee is not necessary to create a client-lawyer relationship has a flip
side, also: The mere payment of a fee does not create such a
relationship. Thus where a lawyer is retained to represent a
person, but another person or entity is paying the fee, the fee payor
is not a client based on that payment alone,41 and thus would not
be owed a duty enforceable in a legal malpractice action absent an
express agreement to the contrary, or other facts that would create
an implied relationship.42
Representing insured persons. Traditionally, a lawyer retained
and paid by an insurance company to provide representation to an
insured person was thereby thrust into a “tripartite relationship”
in which both the insurer and the insured were dual clients.43 But
beginning with a 1991 Michigan decision,44 a growing number of
jurisdictions have held that the insured is the only client.45 Under
either approach, the insured person would have standing to sue the
lawyer for malpractice, even where the insurer was paying the
bills. Under the dual-client approach the insurer would be
similarly situated. Even under the insured-as-sole-client view,
however, the insurer may be able to sue the lawyer for legal
malpractice if the retainer agreement makes the
1168
insurer a client, or if a relationship arises by implication, as

where the lawyer has given legal advice directly to the insurer.46
Subject to slight variations in expression, attorneys owe clients
the skill, care, knowledge, and diligence exercised by reasonable
and prudent lawyers in similar circumstances.47 The general
standard of care is an issue of law, but is usually intertwined with
the fact issue of “what an attorney’s specific conduct should be in a
particular case.”48
Geographical limits and specialists. The usual geographic scope
of a lawyer’s standard of care is the state in which the lawyer
practices.49 This makes perfect sense, because each state regulates
the practice of law within its own borders in terms of bar
admissions requirements and lawyer discipline. The locality rule
seems never to have had the major place in legal malpractice cases
that it once had in the medical cases. This is not to say that local
practices are irrelevant in a legal malpractice action; however,
local practices are most properly seen as determining the propriety
of the lawyer’s conduct rather than changing the standard of
care.50 In many specialized areas of practice, a national standard
seems entirely appropriate.51
Role of ethics rules. Lawyer codes of conduct or ethics, adopted
by the states for disciplinary purposes,52 may be relevant to a court
determining the civil obligations of lawyers,53 but they do not
normally set the standard of care54 or create a cause of action
against lawyers.55 While experts may usually offer testimony about
ethics rules, they
1169
must do so with reference to the rules’ relationship to the

common law standard of care.56 In any event, the rules of conduct
for lawyers are perhaps less relevant to ordinary negligence actions
than to breaches of fiduciary and other special duties.57
Expert testimony required. At one time, courts weren’t so sure
they would even admit expert testimony to establish the standard
of care or its breach.58 That has all passed, and courts now not only
admit but generally require expert testimony to establish the
standard of care59 unless it is a matter of common knowledge.60
Expert testimony as to specialists. If the defendant lawyer is a
specialist, a witness who knows the specialist’s standards is
required, or at least appropriate.61 A dictum in a California case
has it that only a specialist can provide evidence of the standard of
care for specialists.62 That is probably right for many cases; a
personal injury lawyer could hardly help the trier understand
whether a tax lawyer’s estate plan met standards or not. However,
the usual view is that the standard for specialists is more exacting
than the standard for non-specialists, so in some cases, proof that
the specialist breached the less exacting standard for non-
specialists would also show that he breached the more exacting
standard for specialists.
The second element of the legal malpractice claim is breach of
duty. The plaintiff must prove that the lawyer’s conduct fell below
the professional standard of care—that is, that the lawyer failed to
use such skill, prudence and diligence as lawyers of ordinary skill
and capacity usually possess and exercise in the performance of the
kinds of tasks the lawyer undertook. This is a “foresight” test; the
focus is on what a reasonable lawyer “would have done at the time,
excluding the benefit of hindsight.”63 Good faith is no defense if the
lawyer violates the standard.64 However, the lawyer need not be
perfect to
1170
satisfy the duty of care, and “a failure to be brilliant” is

certainly not legal malpractice.65 Breach of duty is an issue of fact
for the jury, as in any other negligence case.66
Types of negligent conduct. A lawyer may breach the
professional duty of care in any number of ways. For example,
fiduciary breach aside, lawyers may fail to recognize a cause of
action or may fail to file a claim or defense within required time
limits,67 may inadequately prepare for trial,68 or use substandard
strategies or techniques in trial itself.69 Lawyers must keep clients
informed about developments relating to the representation,70 and
may be negligent in negotiating a settlement71 or advising its
acceptance.72 Of course, malpractice claims are not confined to
litigation malpractice; they can arise in any kind of representation.
Lawyers may be negligent in drafting73 or recording74 documents,
in searching records,75 in giving advice,76 and possibly even in
accepting a case beyond their experience and competence.77 Each
area of practice tends to have its own unique problems. Joint
representation of clients—both spouses in preparing wills, for
example—may run risks that the lawyer will have conflicts of
interest or will face confidentiality issues unlike those routinely
faced by, say, a personal-injury lawyer.78
The “error of judgment” rule. Not every professional mistake is
negligence.79 In fact, courts often say that lawyers are not liable for
good faith errors in judgment,80 but taken
1171
literally this would virtually eliminate all lawyer liability. The

error-of-judgment rule is therefore confined by most courts to
situations where reasonable professional judgments could differ, in
which case the lawyer simply has not violated the professional
standard.81 More specifically, many cases limit their use of the
error-of-judgment rule to cases in which the lawyer has been faced
with an “unsettled” area of law.82 Even where an area of law is
unsettled, however, a lawyer may fall below the standard of care,83
as by conducting inadequate research,84 especially where research
would reveal alternative courses of conduct that would avoid
placing the client in a “murky” area of law rife with
uncertainties.85 At bottom, neither “good faith” nor the uncertainty
of the legal terrain should protect the lawyer who acts
unreasonably when compared to prudent lawyers faced with a
similar situation.86
Expert testimony. Expert testimony is almost always required to
prove that the lawyer’s conduct constituted a breach of the duty of
care.87 As with medical expert testimony, it is not enough for the
legal expert to testify that he would have acted differently than the
defendant did; instead the expert must testify that the lawyer’s
conduct fell below the professional standard of care of lawyers
under similar circumstances.88 Courts recognize a “common
knowledge” exception to the expert testimony requirement where
the ordinary layperson can assess the professional’s breach without
any expert assistance.89 A typical example of such an exceptional
situation is where an attorney takes no action at all to protect a
client’s interests,90 or fails to file what would have been a
meritorious lawsuit within the statute of
1172
limitations.91 Even there, however, if the statute of limitations

is missed because of a legal judgment by the lawyer, expert
testimony is required to show that the judgment fell below
professional standards.92
Proximate cause: scope of risk. Whether the harm was within
the scope of risks created by the lawyer’s malpractice is not often
raised in the cases, simply because where the plaintiff was a client
and the harm caused is economic, the usual foreseeability tests93
are clearly met. For example, if the lawyer does not file a lien that
could have secured the plaintiff’s right to payment from a debtor,
and that debtor then sells the property and absconds, the lawyer’s
malpractice clearly created the very risk that came to fruition.94
Where scope of risk is a live issue, it is usually due to the type of
harm being unusual or unforeseeable.95
Factual cause. As in other negligence cases, the malpractice
plaintiff must show that her harm was factually caused by the
defendant’s negligence. Under the but-for test of factual cause,96
liability is rejected when the plaintiff’s loss would have occurred
even had the lawyer not committed malpractice,97 or when the
breach of duty did not cause any harm at all.98 If the lawyer fails to
file a viable claim, but the claim can still be pursued without
prejudice, the lawyer’s negligence caused no harm and he is not
liable for his failure.99 If the claim was not viable because the
statute of limitations had already expired, the lawyer failure to file
it is not a factual cause of any harm.100 If a lawyer fails to file an
answer to a complaint, but the client had no defense to the claims,
that failure has not caused harm and is not actionable.101 A lawyer
who negligently fails to search for attachable assets of a judgment
debtor is not liable for malpractice where the
1173
judgment debtor had no assets of value anyway.102 Even a

failure to inform a client of a settlement offer—a clear breach of
duty—is not actionable as malpractice without proof that such
failure cost the client some money.103
The same point applies to bad legal advice and to transactional
malpractice.104 In many cases courts say that the plaintiff must
prove that had the lawyer acted properly, the plaintiff would have
obtained a more favorable result in the underlying transaction.105
Thus a lawyer who fails to reasonably describe the risks involved
in a development scheme is not liable to clients who would have
gone ahead with the scheme even if they had been aware of the
risks.106 A lawyer who drafts faulty contracts likewise escapes
liability unless the plaintiff can prove the faulty documents were a
but-for cause of some financial harm to her.107 Incomplete tax
advice is not actionable where the plaintiff alleges it caused a loss
of business opportunities, but fails to produce evidence that those
opportunities would not have been lost in any event.108 If a lawyer
fails to file timely patent applications on a client’s inventions, but
the plaintiff cannot prove that the inventions were patentable, the
malpractice case dies for want of factual cause.109
In litigation malpractice, the plaintiff must frequently prove
causation of loss by specifically proving that, had the lawyer
properly fulfilled his duties, the client would have achieved a
better result in that underlying case.110 To do that, the client-
plaintiff must often prove her original claim or defense and the
amount of damages she would have recovered or avoided.111 This is
known as the “case within a case” or “trial within a trial”
requirement. The plaintiff must “prove two claims: first, the one
that was lost, and second, the claim that his attorney’s negligence
caused that loss.”112 For example, if the lawyer negligently lost a
procedural entitlement such as jury trial, leaving his client to a
bench trial that was conducted without error, the fact that the
client loses the case does not by itself show damages, for the client
might have lost the case even if it had been tried to a jury.113 A
lawyer who negligently lost a military client’s medical malpractice
case against a government doctor will prevail in the subsequent
legal malpractice case where the evidence shows that the claim
was barred by the Feres doctrine114 and thus would have been lost
even by a non-negligent lawyer.115 On the
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other hand, where the plaintiff shows that the negligence of

trial counsel in failing to argue a key issue to court resulted in a
lower verdict than would have been obtained had the issue been
argued competently, the plaintiff will recover the difference
between what should have been obtained absent the negligence
and the amount of the actual (tainted) verdict.116
In many instances, the malpractice plaintiff will be compelled to
actually stage the original trial by putting on testimony that
should have been put on but for the lawyer’s alleged
malpractice.117 As one court has described it, “the litigants
reconstruct the underlying action, absent the supposed breach of
duty. The tribunal must not only determine how the parties would
have proceeded had there been no breach, but must also assume
the role of the earlier adjudicator in order to ascertain the probable
outcome of the case.”118 If the plaintiff’s original suit was a
malpractice suit against a surgeon, for example, she would put on
evidence of the surgery, the injury following, the doctor’s
negligence, and medical causation.119 For this purpose she will
ordinarily require one or more medical experts.120 And to show
that her former lawyer was negligent, she will also need a legal
expert unless the lawyer’s negligence is obvious.121
Settlements. In most states a malpractice suit may be
maintained even after the client has either accepted or paid a
settlement.122 The plaintiff may claim that the settlement paid out
is too high, or more commonly that the settlement accepted was too
low, due to her lawyer’s negligence.123 Or the client might claim
that the lawyer failed to recommend a settlement, or failed to
memorialize or execute a settlement, that resulted in a
continuation of proceedings that caused greater damages to the
client.124 The protection of the “error of judgment” rule,125
however, is particularly strong in this context, protecting lawyers
from liability where they have recommended or recommended
against a settlement based on the exercise of reasonable
professional judgment.126 Further, a plaintiff’s argument that a
non-negligent lawyer would have obtained a greater settlement, or
would have taken the claim to trial and obtained a
1175
larger amount, may be seen as too speculative to allow any

recovery.127 In any event, the case-within-a-case approach applies
to this setting, and a plaintiff can prevail only by showing that a
more favorable outcome would have likely been obtained128—“the
same burden the plaintiff would have had to satisfy if the
underlying case had gone to trial.”129
§ 45.7 Liability to Non-Clients
At one time courts said that lawyers owed no duty to non-
clients. They often invoked a privity requirement to bar a non-
client’s claim to reap the benefits of the lawyer-client contract. The
convenient model for discussion is the case of the lawyer who
negligently drafts his client’s will so that it is invalid or fails to
pass the client’s estate in accord with the client’s wishes. The
intended beneficiary in such a case is the non-client plaintiff suing
the lawyer-draftsman. While a number of courts still retain the
privity rule or some slightly liberalized version of it,130 most now
reject it.131
Limiting the class of non-clients who can sue for malpractice.
Even with the blanket rule abolished, however, the lawyer’s
professional duty does not extend to all non-clients; but it extends
to those the lawyer was retained to benefit, such as the beneficiary
of the will, and also to those who are involved in a transaction with
the client and who rely upon the lawyer’s work after the lawyer
has invited them to do so.132 This certainly excludes most non-
clients. For example, lawyers do not owe a duty of care to co-
counsel to protect co-counsel’s prospective fee recovery, because
imposing such a duty would create impermissible conflicts of
interest.133
Intended beneficiaries. When a lawyer knows that his client
intends a third person to be a primary beneficiary of the lawyer’s
work, and imposing such a duty would not interfere with the duty
the lawyer owes the client, then that third person is owed a duty of
care and may sue for breach if harm results.134 It is not enough,
however, for a plaintiff
1176
to prove that she would get some incidental benefit from the
lawyer’s work for his client, even where the lawyer knows that
fact.135 Rather, the non-client must be a “direct and intended
beneficiary” for a duty to arise.136 As noted above, the classic
example is an intended beneficiary of a client’s will; most courts
have now recognized that such persons are owed a duty of
professional care and can sue the lawyer directly for malpractice if
his breach causes them harm.137 Some states, however, have
drawn the line at named beneficiaries, holding that no duty is
owed to intended but unnamed beneficiaries.138
Those invited to rely. If a lawyer, or the client with the lawyer’s
consent, invites a third party to rely on the lawyer’s work, and the
third party reasonably relies on that work, then that third party is
also owed a duty of care enforceable in a malpractice action.139 The
lawyer must either know or should know that the non-client is
relying on his services, and the imposition of a duty must not
conflict with the duty owed to the client.140 Perhaps the most
common example of this situation is where the client retains the
lawyer to draft an opinion letter to send to a bank so that the client
can get a loan.141
Duty to adversaries and those with conflicting interests. The
privity rule might have been an overstatement of an enduring
policy. The lawyer owes no duty of professional care to his client’s
adversary.142 That much is essential to the adversary system and
required to prevent conflicts of interest.143 Likewise, the lawyer
must owe no duty of care even to friendly third persons where
efforts to comply with such a duty would impair the lawyer’s
obligation to his client.144 A lawyer is not immune from liability for
malicious prosecution or abuse of process, however.145 And a non-
client may sue a lawyer for negligent misrepresentation if the
elements of that tort are proved.146 Finally a lawyer may owe
fiduciary duties to non-clients, with resulting liability for
breach.147
1177
B. MALPRACTICE IN CIVIL MATTERS:

DEFENSES
§ 45.8 Contributory Negligence/Comparative
Fault
Comparative fault as a valid defense. When the malpractice
claim is based upon negligence, courts have been quite ready to
adopt the defense or partial defense of contributory negligence or
comparative fault,148 although some comparative fault statutes are
addressed only to personal injury cases and the like.149 Relatedly
but quite distinctly, courts may sometimes conclude that the
plaintiff’s conduct is the sole proximate cause of her own harm, in
which case recovery is altogether barred.150 Perhaps the best
candidates for a comparative negligence reduction are the clients
who fail to provide requested information or to follow the lawyer’s
instructions or advice.151 In many of these cases, the plaintiff’s
contributory negligence may be an awkward way of recognizing
that the lawyer was not negligent in the first place.152 If the client
fails to follow the lawyer’s good instructions, the lawyer seems not
to be at fault;153 if the lawyer’s instructions were bad, the client is
not likely to be at fault for failure to follow them.154 Ultimately,
however, whether a client’s fault should be given legal effect must
be appraised in light of a lawyer’s duties to the client, which vary
from case to case.155
Failure to read or understand legal documents before signing.
These general principles have been applied numerous times to a
common situation, in which a client signs a legal document
prepared by the lawyer, without reading it or understanding it,
then sues the lawyer for malpractice in connection with the
document. Whether the lawyer is negligent on these facts, and if
so, whether the client is contributorily negligent, will often produce
a jury question.156 Courts recognize that in some of these cases the
client is at fault (and perhaps the lawyer is not at all), whereas in
others the client is entitled to rely on the lawyer’s skill and advice
in drafting the document. The client’s sophistication (or more
properly her degree of knowledge about the matter covered by the
document) may be a factor in the analysis. A knowledgeable and
sophisticated client
1178
may be contributorily negligent for signing a legal document
without reading and understanding it,157 but an unsophisticated
client may not be negligent for assuming that the lawyer has
fulfilled his duty to draft a proper document and explain its effects
before the client signs.158 The nature of the document is also a
factor; where it is not ambiguous or “laced with legal jargon,” then
the client owes a duty to herself to read it before signing.159 New
York courts have developed a rule that a party who signs a
document is conclusively bound by its terms, absent a valid excuse
for having failed to read it, and found such an excuse where the
lawyers made affirmative representations to their clients about the
contents of the document, in essence telling them that they did not
need to read it.160
Two other defenses will provide a complete bar to a plaintiff’s
malpractice recovery if established. The first, in pari delicto,
relates to the contributory negligence defense in that it involves
proof of the client’s wrongdoing. The second defense arises when
the attorney being sued was appointed by the court to represent
the interests of a minor, often in a custody or dissolution
proceeding; in many states the lawyer (usually denominated a
guardian ad litem) is granted either a qualified or absolute
immunity from civil liability for actions taken within the scope of
the lawyer’s duties.
In pari delicto. The in pari delicto161 (sometimes called unclean
hands) defense applies when the client is guilty of highly culpable
and illegal conduct and his claim or injury arises in part from that
conduct as well as from the lawyer’s fault.162 A lawyer who advises
his client to perjure herself is guilty of malpractice; but a client to
follows the advice is barred by the in pari delicto defense.163 The
client’s conduct in these cases is usually intentional, not merely
negligent.164 In some jurisdictions, the culpability of the client
must either exceed or equal that of the lawyer.165 Courts often cite
the policy of not allowing a client to benefit from her own
intentional wrongdoing and to seek what amounts to an indemnity
from her lawyer to escape full responsibility.166 The defense is
1179
based on the impropriety of the client’s act, not the lawyer’s lack
of fault or blame.167 It has been used numerous times in connection
with bankruptcy proceedings, but its contours remain uncertain.168
Courts have allowed the defense even where the lawyer did not
participate in the client’s misconduct at all.169
Quasi-judicial immunity. Lawyers appointed by the court as a
guardian ad litem to represent a person’s interests in litigation are
granted an immunity from suits, including malpractice suits, in a
number of states.170 Some grant an immunity by statute to court-
appointed guardians at litem,171 while a few others have adopted
an immunity as a matter of common law.172 Often the immunity is
absolute173 and sometimes it is qualified. When the immunity is
qualified, it is lost if the lawyer acts with malice, wantonness or an
intent to injure.174 In all states that allow an immunity, the lawyer
must be acting within the scope of his duties or the privilege is
lost.175
Courts that have applied the immunity have stressed the policy
rationale that lawyers in this role must be allowed to take
positions in the ward’s best interests, even where those positions
are at odds with the wishes of the ward herself, or in the case of a
minor ward, adverse to the interests of the child’s parents.176
Another factor of key importance to many courts is that the
lawyer’s role in such cases is a hybrid of advocate and guardian,
with duties to the court as well as to the client.177 In some of those
states, the existence of the immunity turns on whether the lawyer
is acting principally as an advocate rather than as an arm of the
court; if the former, then there is no immunity at all against a
malpractice action.178
Contract and tort: occurrence rule. Decisions on the statute of
limitations in lawyer malpractice claims are quite diverse if not
actually chaotic.179 Since malpractice arises out of a consensual
relationship, the claim has some connection to contract and that
connection may affect the statute of limitations defense in two
ways. First, if the plaintiff
1180
is permitted to sue on a contract rather than negligence theory,

the contract statute of limitations may apply as it does in other
contract cases.180 Even when the claim is asserted in tort for
negligence, the old connection with contract nevertheless led courts
to say that the plaintiff could recover nominal damages when the
contract was breached by the lawyer’s negligent act. That in turn
meant that the cause of action would accrue upon breach, not later
when damages were inflicted.181 The occurrence rule can foreclose
the plaintiff’s claim before harm is done or discovered. In spite of
its problems, a very small number of state statutes continue to
provide that the limitation period begins on the date that the
malpractice occurs.182 Some other state statutes reference an
occurrence rule but expressly provide for tolling of the limitations
period if the malpractice is not and could not reasonably have been
discovered.183 Accrual at the time of breach does not invariably
cause difficulties for the plaintiff, of course. Depending on the
defendant’s duty, breach may not occur until quite late in a series
of transactions.184 The unadorned occurrence rule, however, has
largely been abandoned in legal malpractice actions.
Time-of-harm rule. The conventional negligence case would
start the statute at the moment when the defendant’s negligence
has actually caused damages, whether or not the plaintiff was
aware of the harm at the time. Some courts apply this rule in legal
malpractice cases—essentially rejecting the discovery rule185—
especially but not only in cases of drafting errors in the
preparation of a will that can cause injury only after the putative
testator dies.186 “Harm” may be a flexible term in some cases. A
lawyer’s error in failing to secure a judgment for definite benefits
that would be payable in the future may be deemed to create actual
harm on the date of the judgment if future loss could be calculated
at that time.187 Even when the time of harm is not itself the
ultimate governing rule, the time of harm may be a significant
component in some other rule.
Discovery rule. Most states have now adopted some form of the
discovery rule for legal malpractice cases; many have done so by
statute.188 The rule usually postpones accrual of a claim until the
plaintiff-client discovered or could reasonably have
1181
discovered both the lawyer’s negligent conduct and the

plaintiff’s injury.189 One reason for the rule lies in the lawyer’s
fiduciary obligation to disclose his own malpractice.190 A client
need not know the full extent of the injuries caused by the lawyer’s
negligence in order for the discovery rule to trigger accrual of the
claim.191 The focus is on the plaintiff’s knowledge of facts, not law;
the key is whether the plaintiff knew or should have known facts
that would give rise to a legal claim.192
Continuous-representation rule. An increasing number of
decisions recognize termination of the relationship or
representation as an appropriate time for starting the statute.193
The representation qualifies as continuing only if it concerns the
same or a related subject matter.194 Thus where a lawyer commits
malpractice in one matter, but continues to represent the client in
one or more unrelated matters, the continuous-representation rule
does not assist the plaintiff.195 Nor does the continuous-
representation rule apply to interrupted or sporadic
representations; as the name indicates, the representation must in
fact be “continuous,” as opposed to “sporadic.”196
Supporting rationales for the continuous-representation
doctrine. Termination of the relationship on the particular legal
matter may represent an important starting time for the statute of
limitations in litigation-malpractice cases for several different
reasons, not at all alike. One reason is that the termination may be
a good index to the client’s discovery or probable discovery of the
elements of a claim against her lawyer. Another is that the
lawyer’s negligence may be remediable or at least that the
damages he inflicts can be minimized if he takes steps to reduce
the harm after his initial act of negligence.197 A third reason
recognizes that the client cannot very well be expected to sue her
attorney while representation continues;198 in that sense the rule
also prevents the disruption of the client-lawyer relationship.199
Even the attorney who does nothing to carry out his representation
may be continuously representing the client if the client reasonably
1182
expects or understands that representation is continuing.200

Some authority regards the continuous-representation doctrine as
an equitable one and determines on a case-by-case basis whether to
apply it.201 A few modern courts have rejected the continuous-
representation doctrine,202 sometimes on the ground that only the
legislature can adopt the rule,203 but it has become quite well-
established.
C. MALPRACTICE IN CIVIL MATTERS: DAMAGES
Punitive damages aside,204 the general principle of damages
measurement is to provide compensation; thus the client-plaintiff
is entitled to recover a sum that will put her in the financial
position she would have been in but for the malpractice. The
plaintiff can potentially claim three layers of damages: (1) The loss
incurred (or gain prevented) as a result of the defendant’s
malpractice; (2) consequential damages, meaning collateral losses
that would not have been recovered in any underlying litigation,
potentially including items such as loss of credit; and (3) damages
based on costs in the malpractice suit itself, such as the fees
incurred in pursuing the malpractice claim.
First-layer damages. In the first category, many examples are
straightforward in principle even if proof is sometimes difficult.
The attorney negligently causes the client to lose his property; the
client is entitled to recover the value of the property lost.205 The
attorney negligently causes a trust in favor of the beneficiary to
fail; the beneficiary recovers what she would have taken if the
trust had been properly handled.206 The attorney negligently
recommends that the client accept an inadequate settlement on
dissolution of her marriage; he is liable to the client for the
settlement or recovery that she could have recovered had the
advice been appropriate.207 Courts have disagreed over whether
any such recovery should be reduced by the amount of fees that the
client would have paid for competent lawyering; most hold that
there should be no such reduction.208
Second-layer or consequential damages. One example of
recoverable consequential damages occurs when the malpractice
requires the plaintiff to carry on litigation with others. If the
attorney’s bad advice or negligent drafting results in a criminal
prosecution
1183
or civil suit against his client, the client’s costs of that collateral
litigation are recoverable items of consequential damage.209 All the
reasonable costs of such litigation, including attorneys fees
incurred there, are recoverable against the malpracticing
defendant.210
Emotional harm. A few courts have stated without qualification
that emotional distress recovery is allowed in legal malpractice
cases, at least where the distress is severe.211 But in keeping with
the general attitude toward economic torts, most courts have
subjected emotional harm damages to special limitations or have
rejected them outright,212 except under the case-within-a-case
rules.213 For instance, Minnesota has said that emotional harm
damages could be recovered in a legal malpractice case only if the
lawyer directly caused the harm by willful, wanton, or malicious
conduct214 and a number of other courts have placed similar
restrictions on the recovery.215 A number of courts have concluded
that emotional distress damages may not be recovered where the
emotional distress results from other damages caused by the
lawyer’s negligence, because of a lack of general foreseeability.216 If
lawyers are not liable for negligently causing their clients
emotional distress, they are presumably not liable for the suicide
that results from such distress.217 This result is perhaps more
understandable when the malpractice implicates no dignitary
interests of the client.218 But emotional harm damages seem
appropriate without any proof of physical harm if the defendant’s
malpractice is the kind that runs the risk of substantial emotional
distress, and courts have allowed emotional harm damages in some
such cases.219 The lawyer who negligently allows an entirely sane
client to be dispatched to a mental hospital would be an obvious
example.220 If malpractice runs the risk of stigmatizing the client
or destroying her reputation, emotional distress damages seem
entirely appropriate.221 An
1184
attorney may also be liable for intentional infliction of

emotional distress where the elements of that tort are met.222
Third-layer damages: costs of malpractice litigation. Under the
basic American rule, neither party to a litigation is liable to the
other for attorney’s fees incurred in that litigation,223 although as
noted above, costs of collateral litigation is another matter. This
rule governs malpractice litigation, except for the potential
peculiarity resulting from case-within-the-case proof.
§ 45.12 Compensatory Damages in the Case-Within-
a-Case Suit
Elements recoverable. When the lawyer’s malpractice allegedly
deprived the plaintiff of an appropriate litigation outcome, as
where the lawyer fails to file a claim within the statute of
limitations period, or negotiates or counsels an inadequate
settlement, the malpractice plaintiff must normally prove what she
would have recovered had the case been tried and tried properly, or
if she was a defendant in the underlying case, what losses she
would have avoided by proper representation.224 This rule impacts
damages. For example, if the client would have recovered a fund of
money or a share in property, he is entitled to recover its value
against the attorney.225 If the plaintiff would have recovered lost
wages226 and medical expenses,227 pain and suffering, or emotional
distress228 or lost consortium229 damages, those items of damage
are recoverable against the malpracticing lawyer. If prejudgment
interest or attorney fees would have been available in the first suit,
those items are also recoverable against the lawyer whose fault
caused the loss of the original recovery.230
Punitive damages as compensatory damages in case-within-a-
case suit. Perhaps the same principle recited above applies to
punitive damages,231 so that if such items were recoverable in the
first action they would also be recoverable against the attorney,
though the attorney did not engage in the kind of malicious
behavior that would
1185
otherwise warrant a punitive award against him.232 However,

many courts do not allow recovery of punitive awards that would
have been recovered in the underlying action.233
Collectibility. The plaintiff should recover in compensatory
damages what she lost, but no more. This general principle has led
most courts to conclude that the plaintiff who claims she would
have recovered a judgment (or a higher judgment) must ordinarily
also establish that it would have been collectible against the
adversary in the underlying case.234 If she cannot establish that,
she cannot establish that she has a loss. A number of other courts,
however, have taken the view that the defendant lawyer must
shoulder the burden of proving that a judgment in the underlying
case would not have been collectible, typically on the rationale that
the lawyer’s malpractice created the problem of uncollectibility in
the first place.235
Settlement. In the world of what might have happened if the
lawyer had not been negligent, there is one more important
variation: the plaintiff might have settled the case (since the vast
majority of cases settle) or she might have gone to trial. Settlement
values vary over the course of a long preparation and negotiation
period and verdicts are hard to predict, but if the plaintiff can
mount sufficient evidence to provide a basis for estimation, the
question is whether the jury should be estimating settlement value
or the probable verdict. If the plaintiff can prove that she would
have gone to trial and received a verdict, then that is the basis for
calculating her damages. If, on the other hand, she can show that a
settlement was likely in a given amount (or in a given range), then
that would be the basis for determining damages.236
Attorney’s fees. If, but for the defendant’s malpractice, the
plaintiff would have won a collectible verdict and judgment, she
would normally have been required to pay her lawyer a fee. If she
recovers from the lawyer the amount she would have recovered had
the lawyer properly tried the case, she will be more than
compensated unless a fee for the lawyer is deducted. For this
reason, some courts have deducted a reasonable fee from the
malpractice judgment.237 On the other hand, the lawyer did not
earn any fee;238 far from it, he was guilty of malpractice. In
addition, the plaintiff may have incurred fees to pursue the
malpractice claim, so that deduction of the negligent lawyer’s fee
would in
1186
effect require the plaintiff to pay fees twice.239 With such
arguments in mind, a number of cases have rejected any
reduction.240
D. MALPRACTICE IN CRIMINAL CASES
Where a lawyer is sued for legal malpractice by a client he has
previously represented in a criminal case—commonly called
“criminal malpractice”241—most of the general principles of legal
malpractice continue to apply. These general rules will often
resolve the case without any resort to special rules. Some
significant differences exist between suits for malpractice in a civil
matter and those arising from lawyer negligence in a criminal case,
however, meaning that the usual civil-setting rules do not always
resolve the case. Most fundamentally, the interest harmed by a
criminal defense lawyer’s malpractice is not purely economic;
rather, it is a liberty interest.242 That key distinction may mean,
for example, that some of the limitations on remedies that are
entirely appropriate for an economic tort should not stand in the
criminal-malpractice context. Second, the criminal defendant who
claims to have been convicted because of the lawyer’s negligent
representation has other avenues of relief that actually protect the
liberty interest more directly, most notably a claim of ineffective
assistance of counsel.243 Third, the plaintiffs in criminal
malpractice actions were convicted of or pleaded guilty to criminal
offenses in the underlying criminal case in which the malpractice
allegedly occurred, leaving many courts reluctant or unwilling to
allow recovery as a policy matter.244 Finally, many plaintiffs in
criminal malpractice cases were represented in their underlying
criminal case by public defenders; this leads some courts to
conclude that special protections are needed for the lawyers who
take on these difficult cases,245
1187
and also makes applicable some governmental-liability
requirements246 and possible immunities.247
Special rules. These and perhaps other distinctions between
civil and criminal malpractice have led a growing number of courts
to add additional elements to the plaintiff’s prima facie case, or to
modify the civil-malpractice elements. Pennsylvania, for example,
requires the plaintiff to make a heightened showing of lawyer
fault.248 The most common additions, however, have made the
plaintiff’s burden in this setting even more difficult: proof that the
former criminal defendant has obtained post-conviction relief, or
that the client was actually innocent of the criminal charges, or
both. Some courts see this simply as a logical causation
requirement in this setting, reasoning that a plaintiff who cannot
prove that he would not have been convicted but for the lawyer’s
negligence cannot prevail under ordinary factual causation
rules.249 Others characterize one or both of these requirements as
“proximate cause” limitations, often stressing public policy grounds
for limiting defense-lawyer liability.250 These special requirements
have been criticized as making a criminal malpractice plaintiff’s
burden virtually impossible to meet, and the reported cases would
seem to indicate that plaintiffs rarely succeed where they are
imposed.251 The plaintiffs’ success rate is not improved by the fact
that a very high percentage of criminal malpractice cases are
pursued by the plaintiffs acting pro se.252
Exoneration or post-conviction relief requirement. A number of
courts have added the requirement that in order to succeed in a
case claiming malpractice by a criminal defense lawyer, the
convicted client must show that he has been exonerated in a post-
conviction proceeding.253 Post-conviction relief typically takes the
form of a direct appeal, a collateral attack on the conviction, or a
habeas claim alleging ineffective assistance of counsel. Not
surprisingly, it has been held that when the client gets a second
trial and pleads nolo contendere, the client’s plea bars his
malpractice claim.254
1188
Actual innocence requirement. A growing number of courts have

held that when a convicted client sues for malpractice, he must
prove by a preponderance of the evidence that he was actually
innocent of the crime.255 This is a more difficult burden than
proving exoneration, since most forms of post-conviction relief do
not require proof of actual innocence, and exoneration may be
obtained on grounds other than actual innocence.256 Courts
adopting the actual innocence requirement often contemplate that
the client’s innocence will be proved in a post-conviction
proceeding, making the actual innocence requirement sometimes
an addition, rather than an alternative, to the exoneration
requirement.257 The actual innocence requirement means quite
simply that any client who is actually guilty cannot sue his former
defense lawyer for malpractice at all.258 Nor can an actually
innocent client sue, if he cannot affirmatively prove his innocence
by a preponderance of the evidence. Some judges have been
sharply critical of the actual innocence rule,259 but it has obvious
momentum.
Exceptions to and rejections of special rules. A minority of states
that have considered the issue have rejected both of the special
rules described above.260 Additionally, even in those states that
have adopted one or both, some exceptions have emerged. For
example, some states have recognized that the actual innocence
requirement does not apply where the client’s malpractice claims
are unrelated to underlying guilt or innocence, such as when the
client who pleaded guilty complains that the lawyer’s negligence
caused him to be given an unlawful sentence.261 Washington has
crafted a “very limited exception” to its innocence rule on similar
facts, where the lawyer’s negligence caused the criminal defendant
to be sentenced to a term longer than the maximum allowed by
statute, and the criminal defendant actually served prison time
1189
in excess of the legal maximum before filing suit.262 Others
have found lack of proof of actual innocence irrelevant where the
plaintiff’s suit sought a refund of fees, and was not attacking the
actual conviction at all.263 One court has held that the actual
innocence rule is inapplicable to a claim against a criminal defense
lawyer for breach of fiduciary duty;264 another has recognized an
exception where the client alleged that he was actually innocent
because the crime for which he was convicted did not constitute a
crime at the time he was charged, and that he could not establish
his actual innocence in a post-conviction proceeding because of his
lawyer’s negligence.265
Emotional distress recovery. In civil malpractice, recovery of
emotional distress damages is both difficult and rare.266 In the
criminal-malpractice setting, however, if the plaintiff succeeds on
the malpractice claim it may be even easier to recover damages for
emotional harm.267 Certainly emotional distress is a foreseeable
consequence of an unjustified loss of liberty caused by a defense
lawyer’s negligence.268 As a California court put it, “the recovery of
damages for emotional distress in a legal malpractice case—if it is
to be limited at all—should turn on the nature of plaintiff’s interest
which is harmed and not merely on the reprehensibility of the
defendant’s conduct.”269 Where a liberty interest rather than an
economic one has been invaded, substantial emotional distress
damages may be awarded upon proper proof.270 In a case from the
First Circuit, the court affirmed an award of $50,000 for emotional
distress when a lawyer’s negligence resulted in his client’s
wrongful incarceration in a state mental hospital for a single night,
where the plaintiff proved lasting emotional effects from the
event.271 Of course, at a minimum, a plaintiff must prove that the
emotional distress was caused by the defense lawyer’s negligence
and not simply from the usual stresses of an encounter with the
criminal justice system.272
1190
§ 45.14 Criminal Malpractice: Defenses and
Immunities
Statute of limitations. States do not have special statutes of
limitation for criminal malpractice, so the general rules applicable
to civil malpractice suits still obtain.273 Criminal malpractice cases
present some unique situations, however, making some additional
rules relevant. For example, the statute of limitations may be
tolled in some states during the malpractice plaintiff’s
incarceration; this may be by statute or by equitable tolling
principles.274 Other states reject tolling for incarceration.275
Further, the availability of post-conviction relief raises an accrual
issue that courts must resolve in many criminal-malpractice cases.
In a state that requires exoneration, the question is whether the
claim for malpractice accrues at the time post-conviction relief is
granted, or at some earlier time. Some courts have held that the
statute of limitations begins to run only after post-conviction relief
has been obtained.276 Others have rejected that date and hold that
the claim accrues before then.277 Many of those latter courts—
those that start the clock before termination of post-conviction
proceedings—have adopted a “two-track” approach in which the
criminal-malpractice plaintiff must file his claim within the usual
statutory period, but can obtain a stay of the malpractice case until
those post-conviction proceedings have terminated.278
Collateral estoppel. Collateral estoppel, or issue preclusion, is a
defense in legal claims generally, prohibiting a party from
relitigating an issue that was actually and necessarily litigated
and determined in a prior action.279 In the context of criminal
malpractice, this defense has special force, one that connects to the
element of causation and to the oft-imposed special requirements of
post-conviction relief and proof of actual innocence. The lawyer’s
use of defensive collateral estoppel is particularly common, and
often successful, when the client has previously pleaded guilty.
There, the doctrine may bar the client from arguing that he was
actually innocent, or that the lawyer’s negligence
1191
caused his incarceration.280 Lawyers have also been successful

in arguing that the plaintiff-client is collaterally estopped from
relitigating issues that were decided against the plaintiff in post-
conviction proceedings.281
Immunity of public defenders and court-appointed attorneys.
Criminal defendants are often represented by public defenders,
who are employed by the government, or court-appointed lawyers,
who are paid by the government. Although these lawyers may be
paid by a public entity, their client is the individual accused.
Indeed, the lawyer owes undivided loyalty to the accused and must
act independently of the government. On reasoning of this sort, the
Supreme Court held that as a matter of federal law, no absolute
immunity attaches to lawyers appointed by federal courts to defend
those accused of crime.282 The Court has also held that a court-
appointed lawyer lacks immunity when sued for civil rights
violations under § 1983.283
When the issue is one of state law, however, some authority
supports an immunity on the ground that public defenders or
appointed counsel284 are not so much like private practitioners
because they cannot reject clients and because, at least with
respect to public defenders, they are typically overworked and
undersupported.285 Other state courts have lined up against an
absolute immunity.286 However, in some states the public defender
may be regarded as a state employee, and may benefit from
whatever immunity or procedural advantage is accorded to state
employees by local law.287
________________________________
1 See Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly,
P.C., 311 Conn. 282, 87 A.3d 534 (2014); Tri-G, Inc. v. Burke, Bosselman &
Weaver, 222 Ill.2d 218, 226, 856 N.E.2d 389, 394–95, 305 Ill.Dec. 584,
589–90 (2006). Malpractice in a criminal representation is a different
matter; the harm alleged in that case is usually to a liberty interest, not to
a purely economic one. See §§ 45.13 to 45.14.
2 Representation of the client may, however, create duties to non-
clients. See § 45.7.
3 See Credit Union Central Falls v. Groff, 966 A.2d 1262, 1271 (R.I.
2009) (“The attorney-client relationship is contractual in nature and the
gravamen of an action for attorney malpractice is the negligent breach of a
contractual duty.”); see also Horn v. Wooster, 165 P.3d 69 (Wyo. 2007)
(“Although the standard of care element reflects the law of torts, we have
consistently held the legal relationship between an attorney and his client
is contractual in nature.”).
4 See e.g., Collins v. Reynard, 154 Ill.2d 48, 607 N.E.2d 1185 (1992)
(allowing pleading in the alternative); Pancake House, Inc. v. Redmond,
239 Kan. 83, 716 P.2d 575 (1986) (“Where the essential claim of the action
is a breach of a duty imposed by law upon the relationship of
attorney/client and not of the contract itself, the action is in tort”);
Christensen & Jensen, P.C. v. Barrett & Daines, 194 P.3d 931 (Utah 2008)
(clients wronged by their lawyers may sue based on negligence, breach of
contract, or breach of fiduciary duty); see also Ray Ryden Anderson &
Walter W. Steele, Jr., Fiduciary Duty, Tort and Contract: A Primer on the
Legal Malpractice Puzzle, 47 SMU L. Rev. 235 (1994).
5 See, e.g., Nettleton v. Stogsdill, 387 Ill.App.3d 743, 899 N.E.2d
1252, 326 Ill.Dec. 601 (2008); Beck v. Law Offices of Edwin J. (Ted) Terry,
Jr., P.C., 284 S.W.3d 416 (Tex. App. 2009) (discussing Texas rule against
“fracturing” professional negligence claims against lawyers).
6 See, e.g, AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428,
866 N.E.2d 1033 (2007) (limiting duty); see also ABA Model Rules of
Professional Conduct 1.2(e) (allowing lawyer to limit scope of
representation to particular stages of a case or to certain aspects of a legal
problem, as long as the limitation is reasonable and the client gives
informed consent). While the scope of a lawyer’s duty may be limited by
agreement, ethics rules prohibit a lawyer from making an agreement
prospectively limiting malpractice liability to a client. See ABA Model
Rules of Professional Conduct 1.8(h) (prohibited unless the client is
independently represented in making such an agreement); see also
Restatement Third of the Law Governing Lawyers § 54(1) (2000) (such
agreements are unenforceable).
2011 & Supp.) (breach of fiduciary duty by lawyers); 2 Ronald E. Mallen &
Jeffrey M. Smith, Legal Malpractice § 15:2 (2009 ed.) (hereinafter Mallen
& Smith, Legal Malpractice).
2011 & Supp.).
9 See §§ 21.9 to 21.12.
10 Lawyers are subject to disciplinary actions by state authorities,
but clients are generally not entitled to obtain any compensatory damages
in connection with such proceedings. See ABA Standards for Imposing
Lawyer Sanctions (1986) (followed substantially by most states). Further,
mere lawyer negligence seldom gives rise to discipline. See, e.g., In re
Disciplinary Action Against McKechnie, 656 N.W.2d 661 (N.D. 2003). All
states now have client protection or client security funds that may provide
some financial reimbursement to clients who are aggrieved by their
lawyer’s misdeeds. However, such funds are typically limited in scope and
do not serve as a substitute for the legal malpractice case where the
plaintiff seeks compensatory damages for a lawyer’s negligence. See 1
Mallen & Smith, Legal Malpractice § 2:51 (2009 ed).
11 See Link v. Wabash Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d
734 (1962); Panzino v. City of Phoenix, 196 Ariz. 442, 999 P.2d 198 (2000)
(“Under general rules of agency, which apply to the attorney-client
relationship, the neglect of the attorney is equivalent to the neglect of the
client himself when the attorney is acting within the scope of his
authority.”).
12 Community Dental Services v. Tani, 282 F.3d 1164 (9th Cir.
2002).
13 Bailey v. Algonquin Gas Transmission Co., 788 A.2d 478 (R.I.
2002).
14 State and federal procedural rules provide for relief from a final
judgment on a showing of “excusable neglect.” FRCP 60(b). But almost all
jurisdictions have held that there must be some significant extenuating
circumstances to excuse a lawyer’s neglect. See Pioneer Investment
Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113
S.Ct. 1489, 123 L.Ed.2d 74 (1993) (holding that “inadvertence, ignorance of
the rules, or mistakes construing the rules do not usually constitute
‘excusable’ neglect” under the federal rule); Bailey v. Algonquin Gas
Transmission Co., 788 A.2d 478 (R.I. 2002) (adopting a similarly strict
reading of Rhode Island’s rule). Some states do not bind a client to a
lawyer’s errors where the lawyer has completely abandoned the client. See
Amco Builders & Developers, Inc. v. Team Act Joint Venture, 469 Mich.
90, 666 N.W.2d 623 (2003); Cal. Code Civ. Proc. § 473.1. An even smaller
number of courts do not bind the client where the lawyer was guilty of
“gross negligence.” See, e.g., Resolution Trust Corp. v. Ferri, 120 N.M. 320,
901 P.2d 738 (1995).
15 See § 45.2. Prospective clients—those who have discussed with a
lawyer the possibility of forming a relationship—are owed a duty of
reasonable care to the extent the lawyer provides legal services during the
preliminary discussion. Restatement of the Law Governing Lawyers §
15(1) (2000).
16 McColm-Traska v. Baker, 139 Idaho 948, 88 P.3d 767 (2004).
17 See Chapter 41.
18 Collins v. Reynard, 154 Ill.2d 48, 607 N.E.2d 1185 (1992); Clark v.
Rowe, 428 Mass. 339, 701 N.E.2d 624 (1998).
19 See § 45.7.
20 See §§ 45.5 to 45.6.
21 See §§ 45.11 to 45.12.
22 See §§ 45.13 to 45.14.
23 See § 45.3.
24 See § 45.4.
25 See § 45.5.
26 Where this is the case, the agreement itself usually specifies the
basic duties owed by the lawyer, and the scope of the lawyer’s
undertaking. 1 Mallen & Smith, Legal Malpractice § 8:2 (2009 ed.).
27 See Restatement of the Law Governing Lawyers § 14,
Introductory Note (2000) (“A fundamental distinction is involved between
clients, to whom lawyers owe many duties, and nonclients, to whom
lawyers owe few duties.”).
28 See, e.g., Great American E & S Ins. Co. v. Quintairos, Prieto,
Wood & Boyer, P.A., 100 So.3d 420 (Miss. 2012) (excess insurer could not
maintain a direct claim of legal malpractice against the lawyers that
represented the insured).
29 See Kehoe v. Saltarelli, 337 Ill.App.3d 669, 786 N.E.2d 605, 272
Ill.Dec. 66 (2003); Miller v. Mooney, 431 Mass. 57, 725 N.E.2d 545 (2000);
Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So.3d
474 (Miss. 2010); Restatement of the Law Governing Lawyers § 14(1)
(2000).
30 See Miller v. Mooney, 431 Mass. 57, 725 N.E.2d 545 (2000)
(plaintiff may establish lawyer’s implied consent to form the relationship
“by proof of detrimental reliance, when the person seeking legal services
reasonably relies on the attorney to provide them and the attorney, aware
of such reliance, does nothing to negate it”); In re Disciplinary Action
Against McKechnie, 656 N.W.2d 661 (N.D. 2003); Restatement of the Law
Governing Lawyers § 14(1)(b) (2000).
31 See Zenith Ins. Co. v. Cozen O’Connor, 148 Cal.App.4th 998, 55
Cal.Rptr.3d 911 (2007); Edmonds v. Williamson, 13 So.3d 1283 (Miss.
2009).
32 See, e.g., Mansur v. Podhurst Orseck, P.A., 994 So.2d 435 (Fla.
Dist. Ct. App. 2008); Cleveland Campers, Inc. v. McCormack, 280 Ga.App.
900, 635 S.E.2d 274 (2006); Bloom v. Hensel, 59 A.D.3d 1026, 872 N.Y.S.2d
776 (2009); Meyer v. Mulligan, 889 P.2d 509 (Wyo. 1995).
33 International Strategies Group, Ltd. v. Greenberg Traurig, LLP,
482 F.3d 1 (1st Cir. 2007).
34 See Warren v. Williams, 313 Ill.App.3d 450, 730 N.E.2d 512, 246
Ill.Dec. 487 (2000) (city attorney who entered an appearance for a police
officer who knew nothing of the suit created an attorney-client
relationship with the officer); Togstad v. Vesely, Otto, Miller & Keefe, 291
N.W.2d 686 (Minn. 1980) (consultation about a potential medical
malpractice claim; seeking and receiving advice when reasonable person
would rely upon it is enough); Edmonds v. Williamson, 13 So.3d 1283
(Miss. 2009) (husband of injured party in products liability case neither
signed a retainer nor paid a fee, but accepted lawyer’s services, forming
client-lawyer relationship).
35 See Cleveland Campers, Inc. v. McCormack, 280 Ga.App. 900, 635
S.E.2d 174 (2006).
36 E.g., Credit Union Central Falls v. Groff, 966 A.2d 1262 (R.I.
2009); Bangs v. Schroth, 201 P.3d 442 (Wyo. 2009). See also 4 Mallen &
Smith, Legal Malpractice § 35:21 (2009 ed.) (“There is diversity whether
the existence of the relationship is an issue of fact or law.”).
37 See, e.g., Dixon Ticonderoga Co. v. Estate of O’Connor, 248 F.3d
151 (3d Cir. 2001) (on the evidence before the court, it was a question of
fact whether lawyer agreed to pursue claim against another lawyer or
knew or should have known that client thought he was agreeing); Mansur
v. Podhurst Orseck, P.A., 994 So.2d 435 (Fla. Dist. Ct. App. 2008)
(reversing summary judgment for lawyers, finding triable issue of fact on
whether plaintiffs were clients of the defendant lawyers); Bloom v. Hensel,
59 A.D.3d 1026, 872 N.Y.S.2d 776 (2009) (same).
38 ABA Model Rule of Professional Conduct 1.13(a) (“A lawyer
employed or retained by an organization represents the organization
acting through its duly authorized constituents.”).
39 E.g., In re Banks, 283 Or. 459, 583 P.2d 284 (1978); Bovee v.
Gravel, 174 Vt. 486, 811 A.2d 137 (2002).
40 ABA Model Rule of Professional Conduct 1.13(g) (but cautioning
lawyers that such dual representation requires compliance with rules on
conflicts of interest). A lawyer who represents a constituent of an
organization does not, by virtue of that relationship alone, also represent
the organization itself. See New Destiny Treatment Ctr., Inc. v. Wheeler,
129 Ohio St.3d 39, 950 N.E.2d 157 (2011).
41 See, e.g., Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994)
(payor of wife’s fees in divorce action); Fox v. White, 215 S.W.3d 257
(Mo.App. 2007) (stepfather who paid legal fees on behalf of stepson); Krug
v. Krug, 179 A.D.2d 1041, 580 N.Y.S.2d 599 (1992) (man who paid fees for
the representation of the woman he later married, in her divorce
proceeding); Restatement of the Law Governing Lawyers § 134 (2000).
42 See Fox v. White, 215 S.W.3d 257 (Mo. App. 2007) (affirming
dismissal of malpractice suit by third-party fee payor).
43 See Charles Silver & Kent Syverud, The Professional
Responsibilities of Insurance Defense Lawyers, 45 Duke L.J. 255, 273–75
(1995); 4 Mallen & Smith, Legal Malpractice § 30:6 (2009 ed.) (strongly
endorsing this as the best view). Many courts adhere to this position. See,
e.g., Nevada Yellow Cab Corp. v. Eighth Judicial Dist. Court ex rel.
County of Clark, 123 Nev. 44, 152 P.3d 737 (2007); Spratley v. State Farm
Mut. Auto. Ins. Co., 78 P.3d 603 (Utah 2003).
44 Atlanta Int’l Ins. Co. v. Bell, 438 Mich. 512, 475 N.W.2d 294
(1991).
45 See, e.g., Paradigm Ins. Co. v. Langerman Law Offices, P.A., 200
Ariz. 146, 24 P.3d 593 (2001); Higgins v. Karp, 239 Conn. 802, 687 A.2d
539 (1997); Pine Island Farmers Coop v. Erstad & Reimer, P.A., 649
N.W.2d 444 (Minn. 2002); Lieberman v. Employers Ins. of Wausau, 84 N.J.
325, 419 A.2d 417 (1980); State Farm Mutual Auto Ins. Co. v. Traver, 980
S.W.2d 625 (Tex. 1998); see also Restatement of the Law Governing
Lawyers § 134, cmt. f (2000) (insured person is a client; insurer is not a
client “simply by the fact that it designates the lawyer”).
46 See, e.g., Paradigm Ins. Co. v. Langerman, 200 Ariz. 146, 24 P.3d
593 (2001); Pine Island Farmers Coop v. Erstad & Reimer, P.A., 649
N.W.2d 444 (Minn. 2002) (also holding that a lawyer owes a duty to the
insurer, even if the insurer is nonclient, because the lawyer’s services are
ordinarily intended to benefit both the insured and the insurer). On suits
against lawyers by non-clients, see § 45.7.
47 See Radiology Services, P.C. v. Hall, 279 Neb. 553, 780 N.W.2d 17
(2010); Leder v. Spiegel, 9 N.Y.3d 836, 872 N.E.2d 1194, 840 N.Y.S.2d 888
(2007); Olson v. Fraase, 421 N.W.2d 820 (N.D. 1988); Restatement of the
Law Governing Lawyers § 52(1) (2000).
48 Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008).
49 E.g., Kellos v. Sawilowsky, 325 S.E.2d 757 (Ga. 1985); Smith v.
Haynesworth, Marioin, McKay & Geurard, 472 S.E.2d 612 (S.C. 1996);
Chapman v. Bearfield, 207 S.W.3d 736 (Tenn. 2006); Russo v. Griffin, 147
Vt. 20, 510 A.2d 436 (1986).
50 See 2 Mallen & Smith, Legal Malpractice § 20:5 (2009 ed.). This
would impact on the admissibility of expert testimony; where the court
rejects a local standard of care, it would be improper for the trial judge to
discount non-local expert testimony on the standard of care. See Russo v.
Griffin, 147 Vt. 20, 510 A.2d 436 (1986).
51 See Restatement of the Law Governing Lawyers § 52, cmt. b
(2000) (referencing various types of federal-law oriented practice).
52 Virtually all have patterned their rules on models drafted by the
American Bar Association, the current version of which is found in the
ABA Model Rules of Professional Conduct.
53 Restatement of the Law Governing Lawyers § 52(2)(c) (2000).
54 E.g., Byers v. Cummings, 320 Mont. 339, 87 P.3d 465 (2004)
(“Rules of Professional Conduct do not establish substantive legal duties.”);
Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400 (Tenn.
1991) (Code of Professional Responsibility does not set the standard of
care, so a law professor’s proffered testimony based solely on the Code was
inadequate to establish the standard); see ABA Model Rules of
Professional Conduct, Preamble (“nothing in the Rules should be deemed
to augment any substantive legal duty of lawyers or the extra-disciplinary
consequences of violating such a duty”).
55 E.g., Allen v. Allison, 356 Ark. 403, 155 S.W.3d 682 (2004)
(rejecting plaintiff’s attempt to use the ethics rules to establish an element
of a civil conspiracy claim); Liggett v. Young, 877 N.E.2d 178 (Ind. 2007)
(Professional Conduct Rule on business transactions with client did not
create a cause of action); Shamberg, Johnson & Bergman, Chtd. v. Oliver,
289 Kan. 891, 220 P.3d 333 (2009) (lawyer’s violation of ethical rule
neither creates a cause of action nor necessarily warrants any other non-
disciplinary remedy); Olson v. Fraase, 421 N.W.2d 820 (N.D. 1988)
(violation of ethics code provision is not a tort).
56 See Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377 (1986)
(allowing testimony about ethics rules on the ground that violation of rules
could be “some evidence” of negligence); see also Hizey v. Carpenter, 119
Wash.2d 251, 830 P.2d 646 (1992) (approving expert testimony on the
content of ethics rules, but only if the expert did not actually refer to the
rules as such).
57 Griva v. Davison, 637 A.2d 830 (D.C. 1994) (violation of ethic rule
can constitute a breach of fiduciary duty to the client); see also Ronald D.
Rotunda & John S. Dzienkowski, Legal Ethics—The Lawyer’s Deskbook
on Professional Responsibility § 1–9(c)(3) (2010–11 ed.) (discussing many
complexities about the uses of ethics rules in civil cases); 4 Dobbs, Hayden
58 Developments in the Law—Lawyers’ Responsibilities and
Lawyers’ Responses, II. Lawyers’ Responsibilities to the Client: Legal
Malpractice and Tort Reform, 107 Harv. L. Rev. 1557 (1994).
59 E.g., Crookham v. Riley, 584 N.W.2d 258 (Iowa 1998); Bergstrom
v. Noah, 266 Kan. 847, 974 P.2d 531 (1999); Boyle v. Welsh, 256 Neb. 118,
589 N.W.2d 118 (1999); Roberts v. Chimileski, 175 Vt. 480, 820 A.2d 995
(2003); Rino v. Mead, 55 P.3d 13 (Wyo. 2002). See also Michael A.
DiSabatino, Annotation, Admissibility and necessity of expert evidence as
to standards of practice and negligence in malpractice action against
attorney, 14 A.L.R.4th 170 (1982).
60 See, e.g., Pierce v. Cook, 992 So.2d 612 (Miss. 2008) (lawyer had
adulterous affair with client’s wife, no expert required); Vandermay v.
Clayton, 328 Or. 646, 984 P.2d 272 (1999) (error in drafting agreement
pursuant to explicit instructions by client).
61 Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474 (3d Cir. 1979);
Conley v. Lieber, 97 Cal.App.3d 646, 158 Cal.Rptr. 770 (1979).
62 Wright v. Williams, 47 Cal.App.3d 802, 121 Cal.Rptr. 194 (1975).
63 Hopp & Flesch, LLC v. Backstreet, 123 P.3d 1176 (Colo. 2005);
Accord, e.g., Darby & Darby, P.C. v. VSI Intern., Inc., 95 N.Y.2d 308, 739
N.E.2d 744, 716 N.Y.S.2d 378 (2000).
64 See Meyer v. Wagner, 429 Mass. 410, 709 N.E.2d 784 (1999);
Nesvig v. Nesvig, 676 N.W.2d 73 (Nev. 2004).
65 McKnight v. Dean, 270 F.3d 513 (7th Cir. 2001) (Posner, J.).
66 See, e.g., Blanks v. Seyfarth Shaw, 171 Cal.App.4th 336, 89
Cal.Rptr.3d 710 (2009) (reversing trial judge’s ruling that law firm
breached its duty to client as a matter of law); Jerry’s Enterprises, Inc. v.
Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811 (Minn. 2006);
McIntire v. Lee, 149 N.H. 160, 816 A.2d 993 (2003).
67 E.g., Phillips v. Clancy, 152 Ariz. 415, 733 P.2d 300 (Ct. App.
1986); Bebo Const. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78 (Colo. 1999).
68 Waldman v. Levine, 544 A.2d 683, 78 A.L.R.4th 703 (D.C. 1988);
McIntire v. Lee, 149 N.H. 160, 816 A.2d 993 (2003) (failure to conduct
adequate discovery or prepare the plaintiff for trial).
69 Wartnick v. Moss & Barnett, 490 N.W.2d 108 (Minn. 1992)
(lawyer’s admission in opening statement); McIntire v. Lee, 149 N.H. 160,
816 A.2d 993 (2003) (failure to present relevant evidence).
70 The duty to provide information to the client clearly extends to
relating settlement offers and giving the client enough facts to assess
them. See Moores v. Greenberg, 834 F.2d 1105 (1st Cir. 1987); Wood v.
McGrath, North, Ullin & Kratz, P.C., 256 Neb. 109, 589 N.W.2d 103
(1999).
71 E.g., Meyer v. Wagner, 429 Mass. 410, 709 N.E.2d 784 (1999)
(following the usual rule that judicial approval of a settlement does not
foreclose the malpractice action based upon the attorney’s negligence).
72 Thomas v. Bethea, 351 Md. 513, 718 A.2d 1187 (1998) (analyzing a
number of settlement cases).
73 E.g., Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685, 15 Cal.Rptr.
821 (1961).
74 See Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, 10 A.L.R. 5th
1098 (1990).
75 Cf. Greycas, Inc. v. Proud, 826 F.2d 1560 (7th Cir. 1987) (failure to
search for UCC filings followed by a misrepresentation that no liens
existed).
76 Conklin v. Hannoch Weisman, 145 N.J. 395, 678 A.2d 1060 (1996)
(plaintiff claimed lawyer gave inadequate explanation of subordination
agreement).
77 See Battle v. Thornton, 646 A.2d 315 (D.C. 1994). However, mere
acceptance of a case would not necessarily cause harm unless the attorney
fell below the standard of care in some particular act. The Model Rules
provide that a lawyer who takes on a case in an unfamiliar or “wholly
novel” field is not acting incompetently if the lawyer engages in “necessary
study,” “reasonable preparation,” or associates with a lawyer who has
“established competence in the field in question.” ABA Model Rules of
Professional Conduct 1.1, Comment ¶¶ 2 & 4.
78 See A. v. B., 158 N.J. 51, 726 A.2d 924 (1999); Spencer v. Barber,
299 P.3d 388 (N.M. 2013).
79 Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685, 15 Cal.Rptr. 821
(1961) (not negligent to misapply the rule against perpetuities).
80 E.g., Woodruff v. Tomlin, 616 F.2d 924 (6th Cir. 1980); Nash v.
Hendricks, 369 Ark. 60, 250 S.W.3d 541 (2007); Biomet v. Finnegan
Henderson LLP, 967 A.2d 662 (D.C. 2009); Sun Valley v. Rosholt,
Robertson & Tucker, 133 Idaho 1, 981 P.2d 236 (1999). Pattern jury
instructions often contain similar statements. See, e.g., Cal. Jury Instr.—
Civ. 6–37–2; Ind. Pattern Jury Instr.—Civ. No. 23.35. The rule originates
in an eighteenth century malpractice case announced by Lord Mansfield in
the House of Lords, Pitt v. Yalden, 98 Eng. Rep. 74 (K.B. 1767), discussed
in 2 Mallen & Smith, Legal Malpractice § 19:2 (2009 ed.).
81 See Bergstrom v. Noah, 266 Kan. 847, 974 P.2d 531 (1999).
82 E.g., Jerry’s Enterprises, Inc. v. Larkin, Hoffman, Daly &
Lindgren, Ltd., 711 N.W.2d 811 (Minn. 2006); Baker v. Fabian, Thielen &
Thielen, 254 Neb. 697, 578 N.W.2d 446 (1998); Roberts v. Chimileski, 175
Vt. 480, 820 A.2d 995 (2003).
83 See L.D.G., Inc. v. Robinson, 290 P.3d 215 (Alaska 2012) (in dram
shop action, failing to join an intoxicated consumer as an additional
defendant could breach duty of care despite unsettled nature of the law on
who could be liable in such a case); Collins v. Miller & Miller, Ltd., 189
Ariz. 387, 943 P.2d 747 (Ct. App. 1996) (fact issue whether lawyer
breached duty of care despite unsettled statute of limitations issue, where
lawyer could have filed claim in a timely manner nonetheless).
84 Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662 (D.C.
2009); Jerry’s Enterprises, Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd.,
711 N.W.2d 811 (Minn. 2006); Kempf v. Magida, 37 A.D.3d 763, 832
N.Y.S.2d 47 (2007).
85 Blanks v. Seyfarth Shaw, 171 Cal.App.4th 336, 89 Cal.Rptr.3d 710
(2009).
86 See, e.g., Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662
(D.C. 2009); Equitania Ins. Co. v. Slone & Garrett, P.S.C., 191 S.W.3d 552
(Ky. 2006).
87 E.g., Ball v. Birch, Horton, Bittner and Cherot, 58 P.3d 481
(Alaska 2002); Jerry’s Enterprises, Inc. v. Larkin, Hoffman, Daly &
Lindgren, Ltd., 711 N.W.2d 811 (Minn. 2006); Davis v. Enget, 779 N.W.2d
126 (N.D. 2010); but see Dubreil v. Witt, 271 Conn. 782, 860 A.2d 698
(2004) (trial judge properly excluded expert testimony on standard of care
and breach in bench trial, where judge himself was fully aware of both the
standard and the kind of conduct that would breach it).
88 See Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008)
(difference of opinion between lawyers does not prove that one of them was
negligent).
89 E.g., In re R & R Associates of Hampton, 402 F.3d 257 (1st Cir.
2005) (N.H. law); Flax v. Schertler, 935 A.2d 1091 (D.C. 2007); Samuel v.
Hepworth, Nungester & Lezamiz, Inc., 134 Idaho 85, 996 P.2d 303 (2000);
Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008); Davis v. Enget,
779 N.W.2d 126 (N.D. 2010).
90 See, e.g., Zok v. Collins, 18 P.3d 39 (Alaska 2001) (lawyer failed to
file papers or oppose motions); Paul v. Gordon, 58 Conn.App. 724, 754 A.2d
851 (2000) (lawyer had done “absolutely nothing” in response to a
complaint filed against his client, resulting in a default judgment).
91 E.g., Giron v. Koktavy, 124 P.3d 821 (Colo.App. 2005) (collecting
cases); Byrd v. Bowie, 933 So.2d 899 (Miss. 2006); Allyn v. McDonald, 112
Nev. 68, 910 P.2d 263 (1996).
92 See Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).
93 See §§ 15.1 & 15.10.
94 Cf. Rhine v. Haley, 238 Ark. 72, 378 S.W.2d 655 (1964) (divorce
settlement, attorney failed to require a lien on property of husband, who
saw his opportunity and “absconded to Louisiana with his new wife”).
95 E.g., TIG Ins. Co. v. Giffin Winning Cohen & Bodewes, P.C., 444
F.3d 587 (7th Cir. 2006) (law firm’s negligence in producing documents
pursuant to a discovery request did not, as a matter of law, proximately
cause a tangled legal battle that ultimately cost the client over a million
dollars in attorney’s fees; such an injury “was not reasonably foreseeable”);
Hansen v. Anderson, Wilmarth & Van Der Maaten, 657 N.W.2d 711 (Iowa
2003) (the hazard posed by law firm’s negligence “was not the hazard that
produced the judgment against [the plaintiffs]” in the underlying action);
Worsham v. Nix, 83 P.3d 879 (Okla. App. 2003) (legal malpractice did not
proximately cause client’s suicide); Roberts v. Healy, 991 S.W.2d 873 (Tex.
App. 1999) (lawyer’s failure to secure a protective order against client’s
estranged husband not a proximate cause of the husband’s murdering the
children).
96 See §§ 14.4 & 14.5.
97 McColm-Traska v. Baker, 139 Idaho 948, 88 P.3d 767 (2004);
Gregory v. Hawkins, 251 Va. 471, 468 S.E.2d 891 (1996).
98 See, e.g., Vallinoto v. DiSandro, 688 A.2d 830 (R.I. 1997) (client’s
divorce lawyer engaged in numerous sex acts with her, but malpractice
claim failed because she failed to prove that her legal position was
damaged by the relationship); see also Hand v. Howell, Sarto & Howell,
131 So.3d 599 (Ala. 2013) (failure to name particular defendant would not
have made any difference); Pietrangelo v. Wilmer Cutler Pickering Hale &
Dorr, LLP, 68 A.3d 697 (D.C. 2013) (failure to file writ of certiorari; “pure
speculation” that writ would have made any difference to client).
99 Moscatello v. Univ. of Medicine and Dentistry of New Jersey, 342
N.J.Super. 351, 776 A.2d 874 (2001).
100 Minn-Kota Ag Products, Inc. v. Carlson, 684 N.W.2d 60 (N.D.
2004).
101 Brodeur v. Hayes, 18 A.D.3d 754, 760 N.Y.S.2d 761 (2005).
102 Brown v. Kelly, 140 Vt. 336, 437 A.2d 1103 (1981).
103 Coastal Orthopaedic Institute, P.C. v. Bongiorno, 61 Mass.App.Ct.
55, 807 N.E.2d 187 (2004).
104 See, e.g., Radiology Services, P.C. v. Hall, 279 Neb. 553, 780
N.W.2d 17 (2010) (lawyer’s alleged negligence in sending letters to client’s
customers did not cause customers to stop doing business with client).
105 See, e.g., Jerry’s Enterprises, Inc. v. Larkin, Hoffman, Daly &
Lindgren, Ltd., 711 N.W.2d 811 (Minn. 2006).
106 Roberts v. Chimileski, 175 Vt. 480, 820 A.2d 995 (2003).
107 Viner v. Sweet, 30 Cal. 4th 1232, 70 P.3d 1046, 135 Cal. Rptr. 2d
629 (2003).
108 AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 866
N.E.2d 1033, 834 N.Y.S.2d 705 (2007).
109 Davis v. Brouse McDowell, L.P.A., 586 F.3d 1355 (Fed. Cir. 2010).
110 See Osborne v. Keeney, 339 S.W.3d 1 (Ky. 2012).
111 E.g., Thomas v. Bethea, 351 Md. 513, 718 A.2d 1187 (1998);
Restatement of the Law Governing Lawyers § 53, cmt. b (2000).
112 Dan Nelson Const., Inc. v. Nodland & Dickson, 608 N.W.2d 267
(N.D. 2000); Encinias v. Whitener Law Firm, P.A., 310 P.3d 611 (N.M.
2013); Schmidt v. Coogan, 162 Wash.2d 488, 173 P.3d 273 (2007).
113 Cf. Jones Motor Co., Inc. v. Holtkamp, Liese, Beckemeier &
Childress, P.C., 197 F.3d 1190 (7th Cir. 1999) (suggesting that proof of
damages in such a case would be difficult if not impossible).
114 See § 22.4.
115 Nash v. Hendricks, 369 Ark. 60, 250 S.W.3d 541 (2007).
116 Clary v. Lite Machines Corp., 850 N.E.2d 423 (Ind. App. 2006)
(malpractice plaintiff won jury award of $3.6 million, where trial judge had
awarded plaintiff $260,000 in underlying action).
117 See, e.g., Deramus v. Donovan, Leisure, Newton & Irvine, 905
A.2d 164 (D.C. 2006); Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill.2d
218, 856 N.E.2d 389, 305 Ill.Dec. 584 (2006); Osborne v. Keeney, 339
S.W.3d 1 (Ky. 2012).
118 Suder v. Whiteford, Taylor & Preston, LLP, 413 Md. 230, 922 A.2d
413 (2010).
119 See, e.g., Stanski v. Ezersky, 228 A.D.2d 311, 644 N.Y.S.2d 220
(1996).
120 See § 21.8.
121 Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113 (Tex. 2004);
see §§ 45.3 & 45.4.
122 See 4 Mallen & Smith, Legal Malpractice § 31.43 (2009 ed.). The
decision to accept or reject a settlement is the client’s alone. See ABA
Model Rules of Professional Conduct 1.2(a). As recognized in McWhirt v.
Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996), however, “litigants rely
heavily on the professional advice of counsel when they decide whether to
accept or reject offers of settlement.”
123 E.g., McKnight v. Dean, 270 F.3d 513 (7th Cir. 2001); Garcia v.
Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 845 A.2d 602
(2004); Environmental Network Corp. v. Goodman Weiss Miller, LLP, 119
Ohio St.3d 209, 893 N.E.2d 173 (2008).
124 E.g., McColm-Traska v. Baker, 139 Idaho 948, 88 P.3d 767 (2004)
(but finding that client was not damaged by the lawyer’s failure to
memorialize an oral settlement agreement); Bellino v. McGrath North
Mullin & Kratz, PC LLO, 274 Neb. 130, 738 N.W.2d 434 (2007) (adversary
offered to settle for $1.5 million, but lawyers advised plaintiff he could “do
much better,” resulting in ultimate losses to plaintiff of $3.1 million; jury
verdict for plaintiff reinstated).
125 See § 45.4.
126 See, e.g., Schweizer v. Mulvehill, 93 F.Supp.2d 376 (S.D.N.Y.
2000); Cook v. Connolly, 366 N.W.2d 287 (Minn. 1985); Wolski v. Wandel,
275 Neb. 266, 746 N.W.2d 143 (2008).
127 E.g., McKnight v. Dean, 270 F.3d 513 (7th Cir. 2001) (noting that
lawyer did the client “a favor in ‘coercing’ a $765,000 settlement, if that is
what really happened”); Slovensky v. Friedman, 142 Cal.App.4th 1518, 49
Cal.Rptr.3d 60 (2006).
128 See Moores v. Greenberg, 834 F.2d 1105 (1st Cir. 1987) (affirming
jury verdict for client in malpractice case, measuring damages by the
amount of a settlement offer that lawyer did not relay to client, less the
monies the client received subsequently from a workers’ compensation
carrier, plus attorney’s fees).
129 Environmental Network Corp. v. Goodman Weiss Miller, LLP, 119
Ohio St.3d 209, 893 N.E.2d 173 (2008) (citing many other cases and
Restatement of the Law Governing Lawyers § 53, cmt. b (2000)).
130 See, e.g., Robinson v. Benton, 842 So.2d 631 (Ala. 2002); First
Arkansas Bank & Trust, Trustee v. Gill Elrod Ragon Owen & Sherman,
P.A., 2013 Ark. 159, 427 S.W.3d 47 (2013); LeRoy v. Allen, Yurasek &
Merklin, 114 Ohio St. 3d 323, 872 N.E.2d 254 (2007); Belt v. Oppenheimer,
Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006).
131 E.g., Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685, 15 Cal.Rptr.
821 (1961) (but finding no negligence on the facts); Stowe v. Smith, 184
Conn. 194, 441 A.2d 81 (1981); Harrigfeld v. Hancock, 140 Idaho 134, 90
P.3d 884 (2004); Hale v. Groce, 304 Or. 281, 744 P.2d 1289 (1987); Friske
v. Hogan, 698 N.W.2d 526 (S.D. 2005). See Joan Teshima, Annotation,
Attorney’s liability, to one other than the immediate client, for negligence
in connection with legal duties, 61 A.L.R.4th 615 (1988).
132 See Restatement of the Law Governing Lawyers § 51 (2000). See
also, applying the general rule that in the absence of such facts no duty is
owed to a non-client because it would create conflicts of interest with the
duties owed to the client, Leonard v. Dorsey & Whitney, LLP, 553 F.3d 609
(8th Cir. 2009).
133 See Beck v. Wecht, 28 Cal. 4th 289, 48 P.3d 417, 121 Cal. Rptr.2d
384 (2002); Scheffler v. Adams & Reese, LLP, 950 So. 2d 641 (La. 2007);
Mazon v. Krafchick, 158 Wash.2d 440, 144 P.3d 1168 (2006); Horn v.
Wooster, 165 P.3d 69 (Wyo. 2007).
134 E.g., Paradigm Ins. Co. v. Langerman Law Offices, P.A., 200 Ariz.
146, 24 P.3d 593 (2001) (lawyer can owe a duty of care to an insurer, even
where insurer is not a client, where lawyer knows that client intends as
one of the primary objectives of the representation that the lawyer’s
services benefit the insurer); see Restatement of the Law Governing
Lawyers § 51(3) (2000).
135 Zenith Ins. Co. v. Cozen O’Connor, 148 Cal.App.4th 998, 55
Cal.Rptr.3d 911 (2007).
136 Leonard v. Dorsey & Whitney LLP, 553 F.3d 609 (8th Cir. 2009).
137 See Joan Teshima, Annotation, Attorney’s liability, to one other
than the immediate client, for negligence in connection with legal duties,
61 A.L.R.4th 615 (1988).
138 See, e.g., St. Malachy Roman Catholic Congretation of Geneseo v.
Ingram, 841 N.W.2d 338 (Iowa 2013); Miller v. Mooney, 431 Mass. 57, 725
N.E.2d 545 (2000); Rydde v. Morris, 381 S.C. 643, 675 S.E.2d 431 (2009).
139 See Taylor v. Riley, 157 Idaho 323, 336 P.3d 256 (2014) (corporate
counsel owed duty to non-client shareholder where counsel drafted opinion
letter addressed to shareholder stating that the shareholder could rely on
the opinions given in the letter); Restatement of the Law Governing
Lawyers § 51(2) (2000).
140 See International Strategies Group, Ltd. v. Greenberg Traurig,
LLP, 482 F.3d 1 (1st Cir. 2007).
141 E.g., Greycas, Inc. v. Proud, 826 F.2d 1560 (7th Cir. 1987) (lawyer
told lender that collateral for a loan to client was not subject to other liens,
but did not check records that would have shown otherwise); see also
Petrillo v. Bachenberg, 139 N.J. 472, 655 A.2d 1354 (1995) (lawyer for real
estate seller assumed a duty to the purchaser by submitting an incomplete
percolation-test report, knowing purchaser was relying on its accuracy).
142 E.g., Lamare v. Basbanes, 636 N.E.2d 218 (Mass. 1994); Friedman
v. Dozorc, 312 N.W.2d 585 (Mich. 1981); Brooks v. Zebre, 792 P.2d 196
(Wyo. 1990); see also Restatement of the Law Governing Lawyers § 51,
cmt. c (2000).
143 See Chu v. Hong, 249 S.W.3d 441 (Tex. 2008).
144 See Restatement of the Law Governing Lawyers § 51 (2000).
145 E.g., Zamos v. Stroud, 87 P.3d 802 (Cal. 2004); see Debra E. Was,
Annotation, Liability of Attorney, Acting for Client, for Malicious
Prosecution, 46 A.L.R.4th 249 (1987). In malicious prosecution claims, the
action must first terminate favorably to the original defendant who is now
suing. See § 39.6.
146 E.g., Allen v. Steele, 252 P.3d 476 (Colo. 2011).
147 E.g., Graubard Mollen Dannett & Horowitz v. Moskovitz, 86
N.Y.2d 112, 653 N.E.2d 1179, 629 N.Y.S.2d 1009 (1995) (departing partner
in law firm breached fiduciary duty owed to firm); see §§ 696 & 697.
148 E.g., Kirsch v. Duryea, 21 Cal.3d 303, 146 Cal.Rptr. 218, 578 P.2d
935, 6 A.L.R.4th 334 (1978); Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, 10
A.L.R.5th 1098 (1990); Wheeler v. White, 714 A.2d 125 (Me. 1998); Clark
v. Rowe, 428 Mass. 339, 701 N.E.2d 624 (1998); see 3 Mallen & Smith,
Legal Malpractice § 22:2 (2009 ed.) (citing cases from virtually every
jurisdiction).
149 E.g., Ind. Code § 34–6–2–45; see Clark v. Rowe, 428 Mass. 339,
701 N.E.2d 624 (1998) (comparative negligence statute does not apply to
economic harms caused by legal malpractice, but modified comparative
fault defense adopted as a common law rule based on the “public policy
considerations underlying” the statute).
150 These are cases, then, not of a contributory negligence defense at
all, but rather a failure of an element of the plaintiff’s prima facie case.
E.g., Hansen v. Anderson, Wilmarth & Van Der Maaten, 657 N.W.2d 711
(Iowa 2003); Blackstock v. Kohn, 994 S.W.2d 947 (Mo. 1999).
151 E.g., Ott v. Smith, 413 So.2d 1129 (Ala. 1982); Western Fiberglass,
Inc. v. Kirton, McConkie and Bushnell, 789 P.2d 34 (Utah Ct App. 1990)
(client 50% at fault for failing to keep lawyers informed, and failing to
follow lawyers’ instructions).
152 E.g., Conklin v. Hannoch Weisman, 145 N.J. 395, 678 A.2d 1060
(1996) (recognizing that where a client violates the professional’s
instructions or advice, “the analysis is that of causation, not contributory
negligence”). The phenomenon is not limited to malpractice cases. See §
16.5.
153 E.g., Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175 (1st
Cir. 1997) (Mass. law) (lawyer did not breach duty to client where client
did not heed lawyer’s warnings).
154 E.g., Michael E. Greene, P.A. v. Leasing Associates, Inc., 935 So.2d
21 (Fla. Dist. Ct. App. 2006) (client cannot be found comparatively
negligent for relying on a lawyer’s erroneous advice or for failing to correct
a lawyer’s errors).
155 See Restatement of the Law Governing Lawyers § 54, cmt. d
(2000).
156 See, e.g., Paul v. Smith, Gambrell & Russell, 283 Ga.App. 584, 642
S.E.2d 217 (2007); Mandel, Resnik & Kaiser, P.C. v. E.I. Electronics, Inc.,
41 A.D.3d 386, 839 N.Y.S.2d 68 (2007).
157 E.g., Pontiac School Dist. v. Miller, Canfield, Paddock & Stone,
221 Mich. App. 602, 563 N.W.2d 693 (1997); Cicorelli v. Capobianco, 89
A.D.2d 842, 453 N.Y.S.2d 21 (1982).
158 E.g., TCW/Camil Holding LLC v. Fox Horan & Camerini, LLP, 330
B.R. 117 (D. Del. 2005) (client was not contributorily negligent for signing
documents where law firm failed to advise him of their legal effect);
Tarleton v. Arnstein & Lehr, 719 So.2d 325 (Fla. Dist. Ct. App. 1998);
Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002).
159 Berman v. Rubin, 138 Ga.App. 849, 227 S.E.2d 802 (1976) (lawyer
not liable for malpractice where the document was signed on every page by
the client, who was well-educated).
160 Arnav Industries, Inc. Retirement Trust v. Brown, Raysman,
Millstein, Felder & Steiner, LLP, 96 N.Y.2d 300, 727 N.Y.S.2d 688, 751
N.E.2d 936 (2001), overruled on other grounds, Oakes v. Patel, 20 N.Y.3d
633, 988 N.E.2d 488, 965 N.Y.S.2d 752 (2013).
161 In pari delicto literally means “in equal fault.”
162 See, e.g., Whiteheart v. Waller, 681 S.E.2d 419 (N.C.App. 2009)
(client “continued to assert his non-existent interests” in court papers,
giving rise to a claim against him and his lawyers for malicious
prosecution, among other things; he was thus barred from suing his own
lawyers for malpractice in connection with the cases, despite his lawyers’
many violations of ethics rules).
163 E.g., Blain v. Doctor’s Company, 222 Cal.App.3d 1048, 272
Cal.Rptr. 250 (1990); Turner v. Anderson, 704 So.2d 748 (Fla. Dist. Ct.
App. 1998); Quick v. Samp, 697 N.W.2d 741 (S.D. 2005).
164 See 3 Mallen & Smith, Legal Malpractice § 22:4 (2009 ed.).
165 See State v. Therrien, 175 Vt. 342, 830 A.2d 28 (2003) (client
barred where she and her late husband committed fraud; lawyers were
sued for negligently allowing them to execute deeds and complete land
transfers that constituted the fraud).
166 Heyman v. Gable, Gotwals, Mock, Schwabe, Kihle, Gabarino, 994
P.2d 902 (Okla. Civ. App. 1999).
167 See Mettes v. Quinn, 89 Ill.App.3d 77, 411 N.E.2d 549, 44 Ill.Dec.
427 (1980).
168 E.g., Choquette v. Isacoff, 65 Mass.App.Ct. 1, 836 N.E.2d 329
(2005) (client knew his bankruptcy petition contained false statements
about his income and assets).
169 Goldstein v. Lustig, 154 Ill.App.3d 595, 507 N.E.2d 164, 107
Ill.Dec. 500 (1987).
170 Perhaps the most common example is the lawyer appointed to
represent the interests of a child in a divorce case between the child’s
parents, see, e.g., Sarkissian v. Benjamin, 62 Mass.App.Ct. 741, 820
N.E.2d 263 (2005). Lawyers have also been appointed as guardians ad
litem to represent the interests of adults in conservatorship proceedings,
see, e.g., Estate of Leonard v. Swift, 656 N.W.2d 132 (Iowa 2003).
171 See, e.g., Ariz. Rev. Stat. § 8–522 (H).
172 E.g., Paige K.B. v. Molepske, 219 Wis.2d 418, 580 N.W.2d 289
(1998).
173 E.g., Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997).
174 Carrubba v. Moskowitz, 81 Conn.App. 382, 840 A.2d 557 (2004).
175 See Sarkisian v. Benjamin, 62 Mass.App.Ct. 741, 820 N.E.2d 263
(2005); Kimbrell v. Kimbrell, 331 P.3d 915 (N.M. 2014); Falk v. Sadler, 341
S.C. 281, 533 S.E.2d 350 (Ct. App. 2000).
176 See Short by Oosterhous v. Short, 730 F.Supp. 1037 (D. Colo.
1990); Carrubba v. Moskowitz, 81 Conn.App. 382, 840 A.2d 557 (2004).
177 See, e.g., Bradt v. White, 190 Misc.2d 526, 740 N.Y.S.2d 777
(2002).
178 See Fox v. Wills, 390 Md. 620, 890 A.2d 726 (2006); Hunnicutt v.
Sewell, 147 N.M. 272, 219 P.3d 529 (Ct. App. 2009); see also 3 Mallen &
Smith, Legal Malpractice § 22:7 (2009 ed).
179 See Francis M. Dougherty, Annotation, When Statute of
Limitations Begins to Run upon Action Against Attorney for Malpractice,
32 A.L.R.4th 260 (1981); George L. Blum, Annotation, When Statute of
Limitations Begins to Run upon Action Against Attorney for Legal
Malpractice—Deliberate Wrongful Acts or Omissions, 67 A.L.R.5th 587
(1999); George L. Blum, Annotation, Attorney Malpractice—Tolling or
Other Exceptions to Running of Statute of Limitations, 87 A.L.R.5th 473
(2001).
180 Van Dam v. Gay, 280 Va. 457, 699 S.E.2d 480 (2010).
181 See 3 Mallen & Smith, Legal Malpractice § 23:10 (2009 ed.)
(tracing the genesis of the rule’s application in legal malpractice cases to
Wilcox v. Plummer’s Executors, 29 U.S. 172, 7 L.Ed. 821 (1830)).
182 See 14 Me. Rev. Stat. Ann. § 753A (six-year statute of limitations
begins to run “from the date of the act or omission giving rise to the injury”
with a few narrow exceptions); S.D. Codified Laws § 15–2–14.2 (with a few
exceptions, action must be brought “within three years after the alleged
malpractice, error, mistake or omission shall have occurred”).
183 E.g., 735 Ill. Comp. Stat. 5/13–214.3(c); Neb. Rev. Stat. § 25–222.
184 See, e.g., Barnes v. Turner, 278 Ga. 788, 606 S.E.2d 849 (2004)
(failure to file UCC financing statement).
185 Tingley v. Harrison, 125 Idaho 86, 867 P.2d 960 (1994); Michels v.
Sklavos, 869 S.W.2d 728 (Ky. 1994) (in the litigation malpractice, case-
within-a-case setting, the plaintiff-client’s claim accrues when the first
case is terminated, not when the lawyer commits the earlier act of
negligence); Uhler v. Doak, 268 Mont. 191, 885 P.2d 1297 (1994); McCoy v.
Feinman, 99 N.Y.2d 295, 755 N.Y.S.2d 693, 785 N.E.2d 714 (2002).
186 Cf. Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, 10 A.L.R.5th 1098
(1990) (trust instrument).
187 See McCoy v. Feinman, 99 N.Y.2d 295, 755 N.Y.S.2d 693, 785
N.E.2d 714 (2002).
188 See 3 Mallen & Smith, Legal Malpractice §§ 23:15 & 23:16 (2009
ed.). Only a few states have rejected the rule; many of those have said that
only the legislature can adopt a discovery rule. E.g., Moix-McNutt v.
Brown, 348 Ark. 518, 74 S.W.3d 612, 11 A.L.R.6th 795 (2002); Martin v.
Clements, 98 Idaho 906, 575 P.2d 885 (1978); Madlem v. Arko, 592 N.E.2d
686 (Ind. 1992); McCoy v. Feinman, 99 N.Y.2d 295, 785 N.E.2d 714, 755
N.Y.S.2d 693 (2002).
189 See, e.g., Bleck v. Power, 955 A.2d 712 (D.C. 2008); Bank of New
York v. Sheff, 382 Md. 235, 854 A.2d 1269 (2004); Channel v. Loyacono,
954 So.2d 415 (Miss. 2007); Guest v. McLaverty, 332 Mont. 421, 138 P.3d
812 (2006); Vastano v. Algeier, 178 N.J. 230, 837 A.2d 1081 (2003).
190 Where the lawyer has actually concealed his malpractice, the rule
in virtually all jurisdictions is that the statute of limitations is tolled until
the client discovers or should reasonably have discovered the facts. See 3
Mallen & Smith, Legal Malpractice § 23:14 (2009 ed.); e.g., Bennett v. Hill-
Boren, P.C., 52 So. 3d 364 (Miss. 2011).
191 E.g., Larson & Larson, P.A. v. TSE Indus., Inc., 22 So.3d 36 (Fla.
2009); Channel v. Loyacono, 954 So.2d 415 (Miss. 2007).
192 See, e.g., Jeanes v. Bank of America, N.A., 296 Kan. 870, 295 P.3d
1045 (2013); Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013);
Vastano v. Algeier, 178 N.J. 230, 837 A.2d 1081 (2003); Sharkey v.
Prescott, 19 A.3d 62 (R.I. 2011).
193 O’Neill v. Tichy, 19 Cal.App.4th 114, 25 Cal.Rptr.2d 162 (1994);
Murphy v. Smith, 411 Mass. 133, 579 N.E.2d 165 (1991); Bjorgen v.
Kinsey, 466 N.W.2d 553 (N.D. 1991).
194 See Lockton v. O’Rourke, 184 Cal.App.4th 1051 (2010); Bleck v.
Power, 955 A.2d 712 (D.C. 2008); Shumsky v. Eisenstein, 96 N.Y.2d 164,
750 N.E.2d 67, 726 N.Y.S.2d 365 (2001).
195 See, e.g., Duane Morris LLP v. Astor Holdings Inc., 61 A.D.3d 418,
877 N.Y.S.2d 250 (2009) (lawyers’ alleged malpractice was in a litigation
that ended in 2002; claim accrued at that point, and was not tolled until
2004 although the lawyers represented the plaintiffs in another litigation
until then).
196 See, e.g., Byron Chemical Co. v. Groman, 61 A.D.3d 909, 877
N.Y.S.2d 457 (2009); Williams v. Maulis, 672 N.W.2d 702 (S.D. 2003).
197 Beal Bank, SSB v. Arter & Haddon, LLP, 42 Cal.4th 503, 167 P.3d
666, 66 Cal.Rptr.3d 52 (2007).
198 Shumsky v. Eisenstein, 96 N.Y.2d 164, 750 N.E.2d 67, 726
N.Y.S.2d 365 (2001).
199 See 3 Mallen & Smith, Legal Malpractice § 23:13 (2009 ed.).
200 McCoy v. Feinman, 99 N.Y.2d 295, 785 N.E.2d 714, 755 N.Y.S.2d
693 (2002) (“The continuous representation doctrine tolls the statute of
limitations only where there is a mutual understanding of the need for
further representation on the specific subject matter underlying the
malpractice claim.”).
201 Hendrick v. ABC Ins. Co., 787 So.2d 283 (La. 2001).
202 See, e.g., Channel v. Loyacono, 954 So.2d 415 (Miss. 2007)
(implying that the rule was not needed where the discovery rule applied).
203 See, e.g., Larson & Larson, P.A. v. TSE Industries, Inc., 22 So.3d
36 (Fla. 2009) (finding that the doctrine is a species of tolling and that the
tolling statute does not mention lawyers or legal malpractice cases).
204 Most states allow recovery of punitive damages against lawyers in
legal malpractice cases, but only where the lawyer engages in particularly
egregious misconduct. See 4 Dobbs, Hayden & Bublick, The Law of Torts §
731 (2d ed. 2011 & Supp.). For a discussion of punitive damages generally,
see id. § 483. Liability for punitive damages that were lost because of the
lawyer’s negligence in the underlying case is discussed in § 45.12.
205 Rafferty v. Scurry, 117 Ohio App.3d 240, 690 N.E.2d 104 (1997).
206 As in Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, 10 A.L.R.5th
1098 (1990) (subject to comparative fault reduction).
207 E.g., Grayson v. Wofsey, Rosen, Kweskin and Kuriansky, 231
Conn. 168, 646 A.2d 195 (1994) ($1,500,000 recovery).
208 See, e.g., Hook v. Trevino, 839 N.W.2d 434 (Iowa 2013); Shoemake
v. Ferrer, 143 Wash.App. 819, 182 P.3d 992 (2008); see Restatement of the
Law Governing Lawyers § 53, cmt. c (2000).
209 Dessel v. Donohue, 431 N.W.2d 359 (Iowa 1988); Rudolph v.
Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 867 N.E.2d 385,
835 N.Y.S.2d 534 (2007).
210 See Restatement Second of Torts § 914(2) (1979).
211 See Sherwin-Williams Co. v. First Louisiana Const., Inc., 915
So.2d 841 (La. App. 2005) (negligently-handled real estate transaction);
Gore v. Rains & Block, 189 Mich.App. 729, 473 N.W.2d 813 (1991) (failure
to file a timely medical malpractice claim).
212 For example, some states disallow emotional distress damages
cases absent physical injury, and carry that restriction over to legal
malpractice cases. See, e.g., Leonard v. Walthall, 143 F.3d 466 (8th Cir.
1998) (Arkansas law). Other courts apply the basic rule that emotional
distress damages are unavailable in economic-loss cases. See, e.g., Douglas
v. Delp, 987 S.W.2d 879 (Tex. 1999).
213 See § 45.12.
214 Lickteig v. Alderson, Ondov, Leonard & Sween, 556 N.W.2d 557
(Minn. 1996).
215 See, e.g., Boros v. Baxley, 621 So.2d 240 (Ala. 1993); Garland v.
Roy, 976 A.2d 940 (Me. 2009) (only where the distress is severe and the
lawyer’s actions were “egregious”); Akutagawa v. Laflin, Pick & Heer, P.A.,
138 N.M. 774, 126 P.3d 1138 (2005) (only where lawyer acted
intentionally, or in breach of contract cases where protecting client from
emotional harm was contemplated).
216 E.g., Reed v. Mitchell & Timbanard, P.C., 183 Ariz. 313, 903 P.2d
621 (Ct. App. 1995); Kahn v. Morse & Mobray, 121 Nev. 464, 117 P.3d 227
(2005) (asserting that several other jurisdictions follow the rule).
217 See Cleveland v. Rotman, 297 F.3d 569 (7th Cir. 2002).
218 E.g., Cornell v. Wunschel, 408 N.W.2d 369 (Iowa 1987).
219 E.g., Miranda v. Said, 836 N.W.2d 8 (Iowa 2013) (immigration
case); Kohn v. Schiappa, 281 N.J. Super. 235, 656 A.2d 1322 (1995)
(lawyer retained to help adopt a child).
220 Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987) (a long but
fascinating tale of human error, panic, grief, and pain). Recovery of
emotional distress damages against a criminal defense lawyer whose
negligence resulted in the client’s incarceration would often appear
justified, because the harm caused in such a case is not purely economic
and is also a reasonably foreseeable result of the negligence. See § 45.13.
221 See Salley v. Childs, 541 A.2d 1297 (Me. 1988) (lawyer failed to
discover evidence that would exculpate horse trainer whose license was
revoked because a horse was drugged).
222 See Pierce v. Cook, 992 So.2d 612 (Miss. 2008) (affirming jury
verdict of $1 million for intentional infliction of emotional distress against
lawyer who had an affair with his client’s wife); Vallinoto v. DiSandro, 688
A.2d 830 (R.I. 1997) (but determining that plaintiff failed to prove that
severe emotional distress was caused by her lawyer’s sexual abuse during
his representation of her in her divorce).
223 See 1 Dan B. Dobbs, Law of Remedies § 3.10(1) (2d ed. 1993); 3
Mallen & Smith, Legal Malpractice § 21:14 (2009 ed.).
224 See §§ 45.5 & 45.6.
225 Martin v. Northwest Washington Legal Services, 43 Wash. App.
405, 717 P.2d 779 (1986) (divorce, value of husband’s pension rights which
lawyer failed to claim).
226 E.g., Williams v. Bashman, 457 F. Supp. 322 (E.D. Pa. 1978) (loss
of wages would have been recovered, but only for part-time work in light of
plaintiff’s physical ailments).
227 Harris v. Kissling, 80 Or. App. 5, 721 P.2d 838 (1986) (future
medical expenses included).
228 Harris v. Kissling, 80 Or. App. 5, 721 P.2d 838 (1986) (lawyer
failed to file suit against hospital which had failed to make routine blood
tests for Rh factors, resulting in serious complications for the plaintiff’s
subsequent pregnancies, emotional distress damages could have been
recovered against hospital, therefore recoverable against lawyer).
229 Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn.
1980).
230 See Glamann v. St. Paul Fire & Marine Ins. Co., 144 Wis.2d 865,
424 N.W.2d 924 (1988).
231 See Marjorie A. Shields, Allowance of Punitive Damages in Action
Against Attorney for Malpractice, 9 A.L.R.6th 285 (2005) (§§ 15 & 16,
collecting cases going both ways).
232 Elliott v. Videan, 164 Ariz. 113, 791 P.2d 639 (1989); Haberer v.
Rice, 511 N.W.2d 279 (S.D. 1994).
233 See Ferguson v. Lieff, Cabraser, Heimann & Bernstein, LLP, 30
Cal.4th 1037, 69 P.3d 965, 135 Cal.Rptr.2d 46 (2003); Tri-G, Inc. v. Burke,
Bosselman & Weaver, 222 Ill.2d 218, 856 N.E.2d 389, 305 Ill.Dec. 584
(2006); Osborne v. Keeney, 339 S.W.3d 1 (Ky. 2012); see also Restatement
of the Law Governing Lawyers § 53, cmt. h (2000) (“Collecting punitive
damages from the lawyer will neither punish nor deter the original
tortfeasor and calls for a speculative reconstruction of a hypothetical jury’s
reaction.”).
234 See, e.g., Klump v. Duffus, 71 F.3d 1368 (7th Cir. 1995); Paterek v.
Petersen & Ibold, 118 Ohio St.3d 503, 890 N.E.2d 316 (2008); Thomas v.
Bethea, 351 Md. 513, 718 A.2d 1187 (1998); Akin, Gump, Strauss, Hauer
& Feld, LLP v. National Development and Research Corp., 299 S.W.3d 106
(Tex. 2009).
235 E.g., Carbone v. Tierney, 151 N.H. 521, 864 A.2d 308 (2004);
Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998); Schmidt v. Coogan, 335
P.3d 424 (Wash. 2014).
236 See, e.g., Blanks v. Seyfarth Shaw, 171 Cal.App.4th 336, 89
Cal.Rptr.3d 710 (2009); Pike v. Mullikin, 158 N.H. 267, 965 A.2d 987
(2009); Thomas v. Bethea, 351 Md. 513, 718 A.2d 1187 (1998).
237 Moores v. Greenberg, 834 F.2d 1105 (1st Cir. 1987).
238 Kane, Kane & Kritzer, Inc. v. Altagen, 107 Cal.App. 3d 36, 165
Cal.Rptr. 534, 538 (1980) (lawyer “failed to earn” fee and crediting him
“rewards his wrongdoing”); Campagnola v. Mulholland, Minion & Roe, 76
N.Y.2d 38, 556 N.Y.S.2d 239, 555 N.E.2d 611 (1990) (“defendant attorneys
performed absolutely no services in connection with the disputed claim,
and thus, even if discharged by plaintiff without cause, would not have
been entitled to any quantum merit compensation”).
239 See Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686
(Minn. 1980) (“a reduction for attorney fees is unwarranted because of the
expense incurred by the plaintiff in bringing an action against the
attorney”).
240 See, e.g., Hook v. Trevino, 839 N.W.2d 434 (Iowa 2013).
241 The term was apparently coined in Otto M. Kaus & Ronald E.
Mallen, The Misguiding Hand of Counsel—Reflections on “Criminal
Malpractice,” 21 U.C.L.A. L. Rev. 1191 (1974).
242 See Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987); Ovando
v. County of Los Angeles, 159 Cal.App.4th 42, 71 Cal.Rptr.3d 415 (2008);
see also 3 Mallen & Smith, Legal Malpractice § 27:1 (2009 ed.).
243 See, e.g., Stevens v. Bispham, 316 Or. 221, 851 P.2d 556 (1993). A
claim of ineffective assistance of counsel is a type of post-conviction relief
based on the Sixth Amendment’s right to counsel in criminal cases. To
succeed on the claim, the petitioner must prove both deficient attorney
performance and resulting prejudice. See Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The lawyer’s deficient
performance may involve some affirmative act, or an omission such as the
failure to advise a client about the risk of deportation created by a guilty
plea to a criminal offense. Padilla v. Kentucky, 130 S.Ct. 1473, 176
L.Ed.2d 284 (2010). The remedy is either a reversal of the conviction or,
less commonly, a reduction in sentence. It is not a tort claim; no damages
of any kind are awarded. Thus the successful ineffective assistance claim
prevents a further deprivation of liberty but does not at all address the
damages caused by that deprivation.
244 See, e.g., Wiley v. County of San Diego, 19 Cal.4th 532, 79
Cal.Rptr.2d 672, 966 P.2d 983 (1998); Canaan v. Bartee, 276 Kan. 116, 72
P.3d 911 (2003); Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995).
This rationale is criticized as resting on “specious” grounds, in Joseph H.
King, Jr., Outlaws and Outlier Doctrines: The Serious Misconduct Bar in
Tort Law, 43 Wm. & Mary L. Rev. 1011 (2002).
245 E.g., Glenn v. Aiken, 409 Mass 699, 569 N.E.2d 783 (1991); Belk v.
Cheshire, 159 N.C.App. 325, 583 S.E.2d 700 (2003).
246 A defense lawyer acting as an advocate is not a “state actor” and
thus does not act under color of law within the meaning of 42 U.S.C. §
1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509
(1981). This is true even where the lawyer has been appointed by a state
court to represent the accused. See, e.g., Laurence v. Sollitto, 788 A.2d 455
(R.I. 2002). However, a government-employed lawyer may be liable on
other grounds.
247 See § 22.12.
248 See Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993) (reckless or
wanton conduct).
249 See, e.g., Brewer v. Hagemann, 771 A.2d 1030 (Me. 2001).
250 See, e.g., Canaan v. Bartee, 276 Kan. 116, 72 P.3d 911 (2003);
Butler v. Mooers, 771 A.2d 1034 (Me. 2001); Peeler v. Hughes & Luce, 909
S.W.2d 494 (Tex. 1995).
251 See Meredith J. Duncan, Criminal Malpractice: A Lawyer’s
Holiday, 37 Ga. L. Rev. 1251 (2003); Meredith J. Duncan, The (So-Called)
Liability of Criminal Defense Attorneys: A System in Need of Reform,
2002 B.Y.U. L. Rev. 1 (2002); 3 Mallen & Smith, Legal Malpractice § 27:1
(2009 ed.) (“Civil legal malpractice suits brought against criminal
attorneys have increased, but rarely has an appellate court affirmed a
judgment against an attorney.”).
252 This phenomenon is observable in the reported cases simply by
looking at the listing of counsel. It may be explainable by the fact that
criminal malpractice cases are extraordinarily difficult to win and may
result in “little or no damages,” leading private counsel to decline such
cases. Jenny Roberts, Ignorance Is Effectively Bliss: Collateral
Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95
Iowa L. Rev. 119, 166 n.193 (2009).
253 See, e.g., Glaze v. Larsen, 207 Ariz. 26, 83 P.3d 26 (2004); Coscia v.
McKenna & Cuneo, 25 Cal.4th 1194, 108 Cal.Rptr.2d 471, 25 P.3d 670
(2001); Trobaugh v. Sondag, 668 N.W.2d 577 (Iowa 2003); McKnight v.
Office of Public Defender, 197 N.J. 180, 962 A.2d 482 (2008). See also Heck
v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)
(requiring post-conviction relief as a predicate to a § 1983 action).
254 Brown v. Theos, 345 S.C. 626, 550 S.E.2d 304 (2001).
255 See, e.g., Winniczek v. Nagelberg, 394 F.3d 505 (7th Cir. 2005)
(Illinois law); Wiley v. County of San Diego, 19 Cal.4th 532,79 Cal. Rptr.2d
672, 966 P.2d 983 (1998); Schreiber v. Rowe, 814 So.2d 396 (Fla. 2002);
Gaylor v. Jeffco, 999 A.2d 290 (N.H. 2010); Carmel v. Lundy, 70 N.Y.2d
169, 518 N.Y.S.2d 605, 511 N.E.2d 1126 (1987); Humphries v. Detch, 227
W. Va. 627, 712 S.E.2d 795 (2011).
256 In this context, courts distinguish between “actual innocence” and
“legal innocence.” Post-conviction relief may establish the latter, but not
the former. See, e.g., Correia v. Fagan, 452 Mass. 120, 891 N.E.2d 227
(2008); Ang v. Martin, 154 Wash.2d 477, 114 P.3d 637 (2005).
257 See Kevin Bennardo, Note, A Defense Bar: The “Proof of
Innocence” Requirement in Criminal Malpractice Claims, 5 Ohio St. J.
Crim. L. 341, 344 (2007).
258 See, e.g., Lamb v. Manweiler, 129 Idaho 269, 923 P.2d 976 (1996);
Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993); Brown v. Theos, 345
S.C. 626, 550 S.E.2d 304 (2001) It is perhaps accurate to conclude that the
requirement “creates an almost impossible burden and provides almost
absolute immunity to criminal defense lawyers.” Ang v. Martin, 154
Wash.2d 477, 114 P.3d 637 (2005) (Chambers, J., dissenting). More
benignly, however, the rule has close affinity with the rule in malicious
prosecution that the prosecuted plaintiff who is guilty in fact cannot
recover even if prosecuted without probable cause. See § 591.
259 See, e.g., Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995)
(Phillips, C.J., dissenting) (adoption of the actual innocence rule on the
ground that criminals should not profit from their crimes means “[t]he
public morality is thus protected at the expense of shielding all criminal
defense attorney malpractice, no matter how egregious, from any redress
in the civil justice system”); Ang v. Martin, 154 Wash.2d 477, 114 P.3d 637
(2005) (Sanders, J., dissenting) (“Forcing criminal defendants to prove
actual innocence does not serve any purpose except to frustrate the client’s
right to competent representation…. The majority’s rule simply invites
malpractice since the defense attorney knows he is held to a lower
standard. Proving innocence is impossible since a negative cannot be
proved.”).
260 See, e.g., Mylar v. Wilkinson, 435 So.2d 1237 (Ala. 1983); Rantz v.
Kaufman, 109 P.3d 132 (Colo. 2005); Gebhardt v. O’Rourke, 444 Mich. 535,
510 N.W.2d 900 (1994); Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164
(1997) see also Restatement of the Law Governing Lawyers § 53, cmt. d
(2000) (expressly disapproving the actual innocence requirement).
261 Hilario v. Reardon, 158 N.H. 56, 960 A.2d 337 (2008); Johnson v.
Babcock, 206 Or.App. 217, 136 P.3d 77 (2006).
262 Powell v. Associated Counsel for the Accused, 125 Wash. App. 773,
106 P.3d 271 (2005) (finding on those facts that the case “is more akin to
that of an innocent person wrongfully convicted than of a guilty person
attempting to take advantage of his own wrongdoing,” despite the fact that
the criminal defendant had pleaded guilty).
263 E.g., Bird, Marella, Boxer & Wolpert v. Superior Court, 106
Cal.App.4th 419, 130 Cal.Rptr.2d 782 (2003); Labovitz v. Feinberg, 47
Mass. App. Ct. 306, 713 N.E.2d 379 (1999); Van Polen v. Wisch, 23 S.W.3d
510 (Tex. App. 2000).
264 Morris v. Margulis, 307 Ill.App.3d 1024, 718 N.E.2d 709, 241
Ill.Dec. 138 (1999), rev’d on other grounds, 197 Ill.2d 28, 754 N.E.2d 314,
257 Ill.Dec. 656 (2001).
265 Taylor v. Davis, 265 Va. 187, 576 S.E.2d 445 (2003).
266 See § 45.11.
267 See Rowell v. Holt, 850 So.2d 474 (Fla. 2003) (lawyer had
document that would have procured client’s immediate release from pre-
trial detention but failed to produce it).
268 See Ovando v. County of Los Angeles, 159 Cal.App.4th 42, 71
Cal.Rptr.3d 415 (2008) (“An emotional injury resulting from the
incarceration of an innocent defendant is plainly foreseeable.”); see also
Snyder v. Baumecker, 708 F.Supp. 1451 (D. N.J. 1989) (incarcerated client
became depressed and committed suicide; no liability for the suicide, but
liability for emotional distress); Restatement of the Law Governing
Lawyers § 53, cmt. g, Reporter’s Note (2000) (citing cases allowing
emotional-distress damages in criminal malpractice cases, opining that the
likely explanation is that when malpractice results in imprisonment,
“distress is likely and financial damages difficult to prove”).
269 Holliday v. Jones, 215 Cal.App.3d 102, 264 Cal.Rptr. 448 (1989).
270 Id. (affirming jury award of $400,000 to former client for emotional
distress, where lawyer’s negligence resulted in the plaintiff’s wrongful
conviction and imprisonment under horrible conditions); see also Bowman
v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984) (“One being negligently
deprived of his freedom suffers an injury which could cause mental
distress.”).
271 Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987).
272 See Lancaster v. Stevens, 961 So.2d 768 (Miss. 2007).
273 See § 45.10.
274 E.g., Swan v. Matthews, 555 F.Supp. 495 (D. Mont. 1982)
(maximum of five years tolling for imprisonment under Montana law);
Shaw v. State, Dep’t of Admin., 816 P.2d 1358 (Alaska 1991); Herzog v.
Yuill, 399 N.W.2d 287 (N.D. 1987) (statute tolled for one year after
termination of imprisonment); Cal. Code Civ. Proc. § 352.1 (tolling for
imprisonment not to exceed two years); S.C. Code § 15–3–40 (tolling for
imprisonment, except for life sentence).
275 E.g., Tenamee v. Schmukler, 438 F.Supp.2d 438 (S.D.N.Y. 2006)
(incarceration not a “rare and exceptional circumstance” so as suspend the
statute of limitations under equitable tolling principles); Johnson v.
Marks, 224 Mich.App. 356, 568 N.W.2d 689 (1997) (legislature removed
incarceration as a basis for tolling); Seevers v. Potter, 537 N.W.2d 505
(Neb. 1995) (statute provides that claim accrues upon occurrence of the
negligent act; no tolling for incarceration); Ballinger v. Thompson, 118
P.3d 429 (Wyo. 2005) (civil malpractice case; statute interpreted not to
authorize tolling for incarceration).
276 E.g., Glaze v. Larsen, 207 Ariz. 26, 83 P.3d 26 (2004); Trobaugh v.
Sondag, 668 N.W.2d 577 (Iowa 2003); Canaan v. Bartee, 276 Kan. 116, 72
P.3d 911 (2003); Therrien v. Sullivan, 153 N.H. 211, 891 A.2d 560 (2006);
McKnight v. Office of Public Defender, 197 N.J. 180, 962 A.2d 482 (2008).
277 E.g., Morrison v. Goff, 91 P.3d 1050 (Colo. 2004) (applying
discovery rule; underlying appeal or motion for post-conviction relief does
not affect accrual of the claim); Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108
(1993) (statute begins to run no later than date plaintiff files petition for
post-conviction relief, with new counsel).
278 E.g., McCord v. Bailey, 636 F.2d 606 (D.C. Cir. 1980); Gebhardt v.
O’Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994); Ereth v. Cascade
County, 318 Mont. 355, 81 P.3d 463 (2003); Seevers v. Potter, 248 Neb.
621, 537 N.W.2d 505 (1995).
279 Rantz v. Kaufman, 109 P.3d 132 (Colo. 2005); Krahn v. Kinney, 43
Ohio St.3d 103, 538 N.E.2d 1058 (1989); see also Meredith J. Duncan, The
(So-Called) Liability of Criminal Defense Attorneys: A System In Need of
Reform, 2002 B.Y.U. L.Rev. 1, 32–37 (2002) (describing requirements of
collateral estoppel and analyzing how the defense has been applied in
criminal malpractice cases).
280 See, e.g., Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108
Cal.Rptr.2d 471, 25 P.3d 670 (2001); Allen v. Martin, 203 P.3d 546 (Colo.
App. 2008); Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989);
contra, Mrozek v. Intra Financial Corp., 281 Wis.2d 448, 699 N.W.2d 54
(2005).
281 E.g., Brewer v. Hagemann, 771 A.2d 1030 (Me. 2001); Gibson v.
Trant, 58 S.W.3d 103 (Tenn. 2001). For collateral estoppel to apply, the
issue in the malpractice case must have been actually decided in the
former proceeding. See Stanton v. Schultz, 222 P.3d 303 (Colo. 2010).
282 Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355
(1979).
283 Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758
(1984).
284 E.g., Morgano v. Smith, 110 Nev. 1025, 879 P.2d 735 (1994)
(extending statutory immunity to court-appointed counsel); Mooney v.
Frazier, 225 W.Va. 358, 693 S.E.2d 333 (2010) (same).
285 Dziubak v. Mott, 503 N.W.2d 771 (Minn. 1993). Some public
defender or indigent defense statutes support this view. E.g., Tenn. Code
Ann. § 8–14–209. See Coyazo v. State, 120 N.M. 47, 897 P.2d 234 (Ct. App.
1995).
286 E.g., Johnson v. Halloran, 194 Ill.2d 493, 742 N.E.2d 741, 252
Ill.Dec. 203 (2000); Donigan v. Finn, 95 Mich.App. 28, 290 N.W.2d 80
(1980); Reese v. Danforth, 486 Pa. 479, 406 A.2d 735, 6 A.L.R.4th 758
(1979); Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797 (1997).
287 E.g., Bradshaw v. Joseph, 666 A.2d 1175 (Vt. 1995) (complete
immunity); Conn. Gen. Stat. § 4–165 (qualified immunity for state officers,
listing public defenders as “officers”).
1193
Chapter 46
UNFAIR COMPETITION: TRADEMARKS,

TRADE SECRETS AND PUBLICITY
RIGHTS
Analysis
§ 46.1 Unfair Competition and Trademark Infringement
§ 46.2 Sponsorship Confusion and Dilution in Trademark Law
§ 46.3 False Advertising and § 43(a) of the Lanham Act
§ 46.4 Product Design, Trade Dress, and Functional Features
__________
§ 46.1 Unfair Competition and Trademark

Infringement
Terms and scope. Unfair competition is a general term that
includes deceptive trade practices, acts such as trademark
infringement, and appropriation of trade values or rights in
publicity.1 All of these are torts under common law rules. Some are
enhanced or limited by statutory provisions. Both state and federal
law recognize claims against defendants for (1) using marks or
identifiers for goods or services that are confusingly similar to
identifiers the plaintiff has the right to use;2 (2) dilution of the
plaintiff’s trademark, for example, by associating it with something
undesirable;3 and (3) the publication of false advertising4 (and
sometimes false statements outside of advertising). Three other
kinds of claims are quite distinct. These are intellectual property
claims that emphasize content of the plaintiff’s rights in
confidential information, inventions, and works of authorship,
protected respectively by the states’ laws of trade secrets,5 by
federal patent law,6 and by federal copyright law.7
Passing off. The core unfair competition case and the core
trademark infringement case are similar, and both have roots in
the passing-off cases. In these, the defendant is likely to mislead
purchasers by misrepresenting that his goods are produced or
sponsored by the plaintiff, or by representing himself as an agent
or affiliate of the plaintiff.8 For example, if a customer orders
“Coca-Cola” but the restaurant provides
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Pepsi-Cola without warning of the substitution, the restaurant

is passing off Pepsi for Coca-Cola.9 Reverse passing off is similar—
the vendor sells a herbal supplement as one composed of his own
secret formula when in fact the product is one made by the
plaintiff.10 In effect, the defendant is making a misrepresentation
about both his product and his competitor’s. The customer who is
misled might have an action for deceit, but it is the competitor who
can recover for unfair competition accomplished by passing off or
reverse passing off. It is but a short step from these cases to
provide that cans of one soft drink must not be labeled so they are
likely to be taken for cans of another. That is a central notion of
both common law unfair competition rules and federal statutory
trademark rules under the Lanham Act.11
Trademark. Any words, symbols, or designs can qualify as a
protected trademark if they sufficiently distinguish one person’s
goods or services from another’s.12 Labels, packaging, even the
design or color13 of the product itself, can count as trademarks if
they are distinctive and non-functional.14 Trade names—the name
by which an enterprise is known—receive similar protection.15
Some trademarks may be protected more broadly than others.
Marks fall on a spectrum between generic, descriptive, and
suggestive, to arbitrary and fanciful; the strength of the mark, and
of its protection, increases as you move towards the “fanciful” end
of that spectrum.16
For brevity, the term trademark will be used here to stand for
all identifiers of goods, including trade names. In the original
passing-off or unfair-competition cases, courts tended to make
liability turn on the defendant’s wrongful conduct such as
intentional deceit.17 In contrast, contemporary law holds that any
valid mark is infringed by similar marks if they in fact are likely to
cause customer confusion about the source of the marked goods.18
Non-trademark uses, as where the plaintiff’s product is named by
reference to its trademark in comparative advertising or otherwise,
is not ordinarily an infringement.19
Acquisition of rights. Rights in trademarks are usually acquired
only by using the mark to identify goods with the plaintiff as their
source.20 Once used, the mark may be
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registered under federal and state statutes. Registration gives

the mark’s owner some evidentiary and procedural advantages in
litigation and may help forestall imitation by others. Once the
mark is established, it may be sold or licensed with the product.
Arbitrary, fanciful, or inherently distinctive marks. A mark is
valid and protectable only if it is distinctive, that is, capable of
unambiguously identifying goods as those of the mark’s owner in
the minds of a large number of consumers. The mark is distinctive
either because it is fanciful or arbitrary or because from public
usage it has come to identify the owner’s goods in the public
mind.21 For example, Kodak is a fanciful word coined as a
trademark; when coined, it had no meaning except as a trademark.
By itself, it describes nothing about the product. It is thus
inherently distinctive as an identifier and protectable without
proof that the public associates it with a particular producer of
goods.22 Marks that are not arbitrary or fanciful but are suggestive
without being descriptive may also be distinctive and protected.23
Descriptive marks, secondary meaning. Other words or symbols
are not naturally distinctive because they have existing meaning
that tends to describe characteristics of other things as well as
characteristics of the plaintiff’s product. The Restatement
illustration is helpful: TRAQ as a trademark for steel girders is
fanciful or arbitrary and distinctive without further proof. On the
other hand RIGID may be taken to describe some characteristic of
the girders and is not by itself distinctive.24 Similarly, the personal
name of the producer and geographical terms describing origin are
usually descriptive and have no arbitrary meaning that makes
them distinctive.25 Such descriptive marks, however, can become
distinctive if consumers come to identify the mark with the owner’s
products. In such a case, the mark is said to acquire distinctiveness
through secondary meaning. Once it is found to be distinctive, it
can be protected against infringement.26
Generic terms and loss of distinctiveness. There is a limit to
acquired distinctiveness: no one can acquire rights in words
understood to be generic descriptions of a category of goods rather
than merely descriptive.27 “Bank” and “camera” are examples.28
More than this, a once-distinctive mark may cease to be distinctive
if the public comes to use the trademark as a description. “Aspirin”
is a traditional example. Once a fanciful term, it is now used as a
descriptive name for a type of pain reliever, regardless of the
manufacturer. The term is no longer distinctive of a particular
manufacturer and is thus no longer a trademark.
Infringement: likelihood of confusion. A defendant infringes a
mark by using the same mark or one that is sufficiently similar to
make it likely that consumers will be
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confused about the source or sponsorship of the marked goods.29

The party claiming infringement bears the burden of proving a
likelihood of confusion.30 Judgments about the likelihood of
confusion draw upon sophisticated analysis.31 Similarity itself may
take several forms; even if a spelling is different, the phonetic
similarity may indicate a danger of confusion. The nature of the
market for the goods matters, too; if two disparate groups of
consumers purchase the plaintiff’s and defendant’s goods
respectively, confusion may not be likely in spite of similarities in
two marks.32 Conversely, where the defendant markets a similarly
named product that is sold within the plaintiff’s “natural zone of
expansion,” a likelihood of confusion might be found.33 Free speech
rights are intimately related to the likelihood-of-confusion rule.34
Use of a trademark in a satire of the product, or even merely as a
means of referring to a set of values, ideas, or cultural exemplars,
is not likely to confuse the plaintiff’s goods with the defendant’s.
The defendant is thus free to produce songs about the plastic world
of Barbie and Ken, even though Barbie and Ken are trademarks as
well as the names of dolls.35 A defendant may even be free to
market a non-competing product that parodies the plaintiff’s trade
name, such as “Tommy Holedigger” dog perfume36 or “Chewy
Vuiton” pet chew-toys.37
§ 46.2 Sponsorship Confusion and Dilution in
Trademark Law
Sponsorship confusion. Trademark protection originally aimed
to redress or prevent a diversion of trade that would occur if
customers intended to purchase the plaintiff’s product but
mistakenly chose the defendant’s product with a confusingly
similar mark. This was called source confusion because the
purchaser might believe that the plaintiff was the source of the
defendant’s product. That would mean that if A sold a magazine
called Seventeen and B sold girdles called Seventeen, the
likelihood of confusion was
1197
practically nil, since hardly anyone would think a magazine was

a girdle or vice versa. Nevertheless, courts came to say that
confusion about sponsorship of a product would suffice to show
infringement. So if a prospective girdle purchaser might think that
Seventeen Girdles were somehow sponsored or approved by
Seventeen Magazine, the girdle manufacturer’s use of the term
Seventeen would infringe the magazine’s trademark.38 Sometimes
this idea is taken to the edge or perhaps invoked as a conscious
fiction for something else. In one case,39 a pornographic movie
depicted young women who wished to become “Texas Cowgirl”
cheerleaders and who wore a uniform similar to that worn by
cheerleaders for the Dallas Cowboys football team. The court
granted a preliminary injunction against showing the movie on the
likelihood that the uniform was a trademark and that the movie
infringed it because the viewers of pornographic movies might
believe that the Dallas Cowboys Cheerleaders, Inc., had authorized
use of the similar uniforms.
Dilution. As the sponsorship-confusion cases show, trademark
protection underwent a mutation. What began as a protection
against customer confusion and diversion of trade became an effort
to enhance or maintain the selling power of trade symbols. Since
around 1950, state40 and federal41 anti-dilution statutes have
explicitly embraced this selling-power ideal42 by protecting
trademarks against “dilution” of a mark even when no confusion of
any kind is to be found.43 For instance, “the proliferation of various
noncompetitive businesses utilizing the name Tiffany’s” dilute “the
public’s association of the name Tiffany’s solely with fine
jewelry.”44 This type of dilution is known as the “blurring” or
“whittling down” kind. The claim for dilution is appropriate,
however, only when the plaintiff’s mark is highly distinctive45 or,
in the terms of the federal statute, “famous.”46 A mark containing
the phrase “Blue Ribbon” or “Allied” is not distinctive and cannot
be diluted.47
Tarnishment. Another form of dilution is tarnishment, which
occurs when the plaintiff’s trademark or a similar mark is used for
products that are inconsistent with the image the plaintiff’s goods
or their mark seeks to project. If the use of a bank’s
1198
trademark for a place of adult entertainment48 or a beer’s
trademark for an insecticide49 tarnishes the original trademark,
such use is enjoinable.50 However, where the defendant’s use of the
plaintiff’s trademark does not replace positive associations with
negative ones, the mark has not been tarnished at all.51 Nor is it
actionable tarnishment for the defendant to use the plaintiff’s
trademark to correctly identify the second-hand trademarked
goods sold by the defendant, as in “used Beanie Babies sold
here.”52 Where the plaintiff’s trademark is used not to identify
goods or services but as commentary, satire, or parody, protection
is inappropriate. Similarly, discussion or comparative advertising
that uses an unaltered mark must be permitted.53 Consequently,
the Restatement of Unfair Competition provides that if the
defendant uses the mark to disparage it without using it to identify
goods, liability may be appropriate only under the rules of
defamation or injurious falsehood, not under trademark law.54 And
since the rules for defamation, injurious falsehood, and privacy
invasion take account of free speech interests, satiric or parodic use
of the plaintiff’s mark may not be actionable.55 Speech rights may
be undermined in tarnishment cases, however, if the court declares
that confusion is likely and brings the case within the framework
of traditional trademark infringement.56 The internet has brought
dilution problems as well as many others.57
§ 46.3 False Advertising and § 43(a) of the Lanham
Act
Lanham Act § 43(a): Protection for unregistered marks under
trademark rules. The federal Lanham Trademark Act, as expanded
by amendments, has an enormous impact, creating a federal law of
unfair competition independent of any protection for registered
trademarks.58 First, under the A-clause, one who is damaged when
a defendant makes
1199
confusion likely as to the origin or sponsorship of his goods has
a cause of action under § 43(a).59 That section covers not only the
case in which the defendant passes off his goods as those of the
plaintiff, but also reverse passing off, in which the defendant
passes off the plaintiff’s goods as the defendant’s own.60 In fact, §
43(a) gives unregistered marks substantially the same protection
accorded to registered trademarks and on the same conditions.61
Protection can extend to trade-dress62—containers of goods or the
like—where the container or other appearance elements
distinguish the plaintiff’s goods. A likelihood of confusion exits for
purposes of trade dress infringement “when consumers viewing the
defendant’s trade dress probably would assume that the product it
represents is associated with the source of a different product
identified by the plaintiff’s similar trade dress.”63 The protection
may also extend to product designs as such if the plaintiff proves64
that those designs are non-functional and that they distinguish the
plaintiff’s goods in the eyes of consumers.65
False advertising: common law. The defendant who falsely
disparages the products of a competitor may be liable for injurious
falsehood under state common law rules.66 If, instead of
disparaging his competitor’s products, he advertises or otherwise
misrepresents material qualities of his own goods, he might also be
liable to the purchaser who is deceived. But in that case, earlier
common law tended to deny competitors any recovery on the
ground that they could not show any direct losses.67
Lanham Act § 43(a): protection against false advertising and
disparagement. The B-clause of § 43(a),68 however, creates a cause
of action against defendants who are responsible for false
advertising that “misrepresents the nature, characteristics,
qualities, or geographic origin of his or her or another person’s
goods, services or commercial activities.”69 State statutes may now
do the same.70 The B-clause creates a
1200
cause of action for two different kinds of false statements in
promotions of goods and services—first, the defendant’s false (and
favorable) statements about his own goods; and second, the
defendant’s false (and unfavorable) statements about the plaintiff’s
goods. The second kind of representation is redressed as a federal
disparagement or injurious falsehood claim,71 subject to certain
limitations. However, the statute does not expressly require
intentional falsehood as a basis for liability. Unless such a
requirement can be derived from construction,72 the § 43(a) false
advertising and disparagement claims differ considerably from the
common law disparagement or injurious falsehood claims, at least
at they are described in the Restatement, which imposes liability
only if the defendant intends a falsehood or is at least reckless with
respect to falsity.73
Limitations on the false advertising claim under § 43(a).
Although liability under the B-clause may not require intentional
falsehood, there are statutory limitations on the claim. The falsity
or misrepresentation must be in advertising or promotion,
presumably excluding liability for political or social observations.
The commercial requirement also excludes liability for, say,
disparagement in conversation or in magazine articles.74 A
plaintiff suing for false advertising under the Lanham Act
ordinarily must show economic or reputational injury flowing
directly from the deception wrought by the defendant’s false
advertising; a plaintiff’s complaint must sufficiently allege harm
proximately caused by the defendant’s actions, or it will be subject
to dismissal.75 The statement must also be “false” or misleading,76
a requirement that leaves the advertiser free to engage in puffing
and opinion statements that imply no false statement of fact.77
Although the statute does not use the term, courts have also said
that the representation used in promotion or advertising will not
be actionable unless it is “material.”78 These last two requirements
are in line with similar rules in common law fraud cases.79
Remedies. For a private party such as a competitor to prevail on
a false advertising claim under § 43(a), it must show injury, either
in the form of past financial loss, or
1201
likelihood of future business losses.80 A recovery of damages,81

or an accounting for profits,82 or both, is appropriate if the
plaintiff’s loss or the defendant’s gain from the false advertising is
proved with sufficient certainty.83 Further, section 43(a) permits
trebling of the recovery “as compensation.”84 If monetary damages
cannot be proved, the aggrieved competitor can at least enjoin the
false representations.85
§ 46.4 Product Design, Trade Dress, and
Functional Features
Trade dress. In contemporary law, a distinctive overall
appearance of a container, label, or means of packaging a product
can be protected as a mark under § 43(a) independent of any
specific trademark accompanying such packaging.86 This kind of
overall appearance is often called trade dress. The fundamental
rules of trademark apply. Trade dress is protected as a trademark
only when it is inherently distinctive or acquires distinctiveness
through secondary meaning and identifies the product’s source or
sponsorship.87 A wide range of attributes, including restaurant
decor,88 the special color of pads for dry cleaners,89 the shape and
texture of a bottle in which a product is marketed,90 and many
others can count as protectable trade dress, as long as the total
look distinguishes the plaintiff’s goods or services from others.91
Product design. A product’s design itself can also function as a
distinctive mark and is also sometimes called trade dress. Special
limits apply when trade dress, and especially product design, is
claimed as a trademark, first because functional features cannot be
protected (except under patent law), and second because designs
cannot be inherently distinctive but must instead have acquired
“secondary meaning.”
Functional features. Functional features cannot be protected as
trademarks.92 This means that competitors can copy any feature of
a product’s design that is functional and not protected by patent.93
Although functionality can be defined in varied formulas,94 the
1202
general idea is that a feature is functional if it makes the

product more workable, useful, or efficient than reasonable
alternatives, or if it affects the quality or cost of the product. For
example, the first automobile might have had a distinctive
appearance, “but if its distinctiveness was due to the fact that it
had an engine in front instead of horses, and a crank, radiator grill,
and steering wheel, the producer would not be able to claim that
this combination of functional features constituted trade dress; for
that would give him a monopoly of the production of automobiles,
and trademark law is not intended to confer product monopolies.”95
The fact that the product’s feature was once patented is strong
evidence that, although the patent has expired, the feature
remains functional.96 A product might even have aesthetically
functional features, features that command a premium in the
market because they appeal to tastes so strongly that they are
essential characteristics for marketing the particular product.97
Policy and effect of the functionality rule. The functionality rule
is a part of the balance between free competition and protection of
identifying marks. Copying of useful ideas and designs not
protected by patent laws is entirely desirable and permissible. It is
in fact a part of the balance dictated by the patent laws. Under the
Constitution, federal patent laws are the exclusive source for rights
in inventions.98 They grant inventors of useful items a monopoly or
patent for a period of years, after which anyone may copy the
invention and go into competition with the inventor. The laws
restrict patents to specific devices; general ideas are not
patentable.99 In addition, the device must be inventive and novel
and not merely an extension of earlier ideas.100 Trademark
protection for functional features of a product that is not protected
by a patent would subvert the balance of competition and property
rights struck by the patent laws. That is because trademark of
functional items would provide protection for devices that patent
laws might refuse to protect altogether, and would provide
protection in perpetuity where patent laws would at most protect
for 20 years.101
Preemption of state patent-like laws. With these ideas in mind,
the Supreme Court has held that federal patent laws preempt state
laws that attempt to create patent-like rules to forbid copying of
products that are not protected by federal patent law. In one of the
leading cases, the defendant made a mold of the plaintiff’s boat
design, then cast copies and competed with the plaintiff. Since the
boat design was not patented, copying was not only permitted but,
under the patent scheme, desirable as a means of promoting
1203
competition. A state statute that attempted to prohibit such

copying was thus invalid.102 Earlier cases had taken a similar view
about copying of lamp designs.103
Federal claims and functionality. The preemption analysis does
not apply to claims for trademark infringement under the federal
trademark laws, which permit a claim for infringement of
trademarks in trade dress and product design.104 But the policy
behind the patent preemption decisions applies to federal claims by
way of the functionality rules: a functional feature cannot count as
a trademark, even if it also identifies the plaintiff as producer of
the goods.105 The plaintiff must protect functional features under
the law of trade secrets or patents or not at all.
Designs without distinctiveness. Product designs—as opposed to
trade dress like a container for the goods—are not so likely to be
capable of exclusively identifying the plaintiff’s goods. In fact, the
Supreme Court has held that product designs cannot be inherently
distinctive. At the same time, however, product designs can be
distinctive if, but only if, they have acquired a secondary
meaning.106
General ideas not protected. Ideas as such are not protected,
either by statutes or by the common law. Newton did not own
gravity. If the idea is sufficiently inventive and novel and also
reduced to a specific useful design, it may be patented for a limited
period of years, otherwise not.107 A person with an idea may
exploit it by going into business using the idea, but she cannot
prevent others from using it as well once she reveals it. In such a
case, her rewards for developing a good idea must come from the
fact that she is the first to exploit it and from her efficient use of it,
not from static ownership.
Protection from breach of confidence or contract. However, ideas
and information can be protected to some extent by divulging them
only to fiduciaries, or in confidence, or pursuant to a contract. A
stranger or an employee may suggest improvements to a business,
which may be liable if it contracts to pay for ideas and perhaps on
an implied contract if it uses the idea,108 but otherwise liability
must be founded upon the trade-secret rules109 or not at all.110
1204
Protected information. A trade secret111 is any kind of secret

information used in an enterprise for actual or potential economic
advantage,112 at least if it has independent value because it is
secret.113 It must not be readily ascertainable114 or widely
known.115 Many courts insist that for information to be deemed a
trade secret, the plaintiff must have taken reasonable measures to
maintain its secrecy.116 A trade secret is often a formula or a
compilation of information used in business. Sometimes it is a
process or a combination of elements, each of which is publicly
known, although the combination is not.117 The trade secret is
protected even though it is not novel enough to justify a patent,118
and though it is not actually used by the plaintiff.119 One great
advantage for the owner of a trade secret is that, unlike a patent, it
does not expire at the end of a fixed term. A company that
developed a formula or process in 1900 and never divulged it may
still be exploiting that process to its competitive advantage today.
Grounds for liability. Liability turns on a finding that the
defendant misappropriated the information by tortious or improper
means such as fraud, theft, or the like,120 or the finding that he
was guilty of, or took advantage of, a breach of confidence.121 For
example, if the owner of a trade secret discloses it in confidence to
the defendant as a prospective buyer of the business, the
defendant’s use of the trade secret without making the purchase is
a breach of confidence and a wrongful use of the trade secret.122
The same is true when the plaintiff discloses the trade secret to
employees who must use it in their work. Because the focus is on
wrongdoing and breach of confidence,
1205
a person who acquires the trade secret from a wrongdoer

without reason to know of the wrong is not subject to liability.123
Remedies. If a trade secret is misappropriated or revealed in
breach of confidence, the owner may have relief measured by her
own damages or by the defendant’s unjust enrichment; where
future revelation is threatened, the owner may frequently obtain
an injunction.124 Damages may include lost profits resulting
because use of the trade secret permitted the defendant to sell
goods in competition with the plaintiff125 and also erosion of prices
made necessary by the competition founded on misappropriation of
the trade secret.126 Punitive damages may be available where the
misappropriation was willful and malicious.127 The Uniform Trade
Secrets Act embodies the common law rules protecting trade
secrets and a federal statute makes misappropriation of trade
secrets a crime.128
Preemption or displacement of other claims. The Uniform Trade
Secrets Act preempts or displaces all other claims for
misappropriation of trade secrets, such as claims for “conversion”
of secrets or interference with contract by use of trade secrets.129
Some courts hold that all other claims are displaced even if the
information taken does not count as a trade secret at all.130 Others
take the view that the displacement clause applies only if the
information misappropriated counts as a trade secret.131 Even the
broader view of displacement allows claims that are distinct from
the misappropriation of information.132
Losing rights in trade secrets. Trade secret protection is lost
when the secret becomes publicly or widely known, either because
of the plaintiff’s divulgence133 or in spite of the plaintiff’s best
efforts to keep it secret.134 Furthermore, the defendant is free to
develop the same information covered by a trade secret, so long as
he does not take
1206
advantage of a breach of confidence or commit an independent

tort to do so. In particular, he is free to analyze or reverse-engineer
the plaintiff’s products and to acquire the secret in that manner if
he can.135 These rules reflect disadvantages of trade secret
ownership compared to patents. They also reflect the fact that
trade secrets are property protected by tort law mainly in the
limited sense that tort law will impose liability for breach of
confidence or some independent tort.136
Employees joining a competitor. The breach of confidence issue
often arises when employees who are knowledgeable about the
employer’s trade secrets set up a competing business or go to work
for an existing competitor. The employee owes a fiduciary duty to
his employer,137 so it is clear that he cannot take the employer’s
secret information or use it for his own unauthorized purposes.138
On the other hand, in the absence of a valid agreement to the
contrary, the employee is entitled to take her own skills and
general knowledge with her to another employment. If a customer
list is a trade secret—sometimes they are, sometimes not139—the
employee may still be entitled to use his memory of faces and
names in his new job.140 The conflict between the employee’s right
to work with her own skills and the employer’s right to protect
trade secrets leads to difficult decisions. In extreme cases, the
developing inevitable-disclosure doctrine permits the court to
enjoin the former employee from working for a competitor for a
period of time on the theory that he would inevitably reveal trade
secrets.141
The earliest right of privacy claims sought relief because the
defendant, without permission, had used the plaintiff’s name or
picture in commercial advertising.142 Privacy invasion claims with
their dignitary emphasis remain valid to redress dignitary harms
such as personal distress. When the claim is that the defendant
has appropriated
1207
the plaintiff’s “identity” for trade or commercial purposes,143 the

harm is different; it is economic harm to the plaintiff (or unjust
economic gain to the defendant). In that case, the tort can be
viewed as an invasion of privacy in which damages happen to be
economic, or as a separate tort for the commercial appropriation of
identity or personality or as a vindication of the “right of
publicity.”144 A fair number of states so provide by statute, the
terms of which are sometimes exclusive.145
If the defendant’s use of the plaintiff’s identity is not for trade
or commerce, the right of publicity is not infringed,146 or if it is, the
plaintiff’s claim is subject to First Amendment free speech
defenses.147 Thus a biography, fictionalized or not, does not violate
the right of publicity, and the plaintiff loses unless she can prove
some other tort such as defamation.148 In addition, First
Amendment free speech rights may protect a defendant who
appropriates the plaintiff’s identity as part of his own creative,
transformative work such as a song,149 a portrait that is creative
rather than a literal depiction,150 fantasy-baseball games,151 or
bizarre comic-book fiction utilizing the plaintiffs’ well-known
names for a character that is half-worm.152 This First Amendment
protection does not require literary or creative quality, but perhaps
the new, creative,
1208
and transformative elements must be substantial, and perhaps

must predominate in the work.153
The broad term “identity” here means the plaintiff’s name,
likeness, or other singular or notable characteristics associated
peculiarly with the plaintiff. The forbidden commercial use
includes use of the plaintiff’s identity in an advertisement, as
where the plaintiff’s name,154 voice155 or likeness156 is used or
imitated in an advertisement and where the plaintiff’s identity is
used as part of the defendant’s trademark,157 or sold directly as a
poster, tee-shirt, statuette or the like.158 The emphasis is on the
fact that the plaintiff’s identity has commercial value, so plaintiffs
in such cases are usually celebrities. But even a little-known
recluse may have a reasonable claim if her identity has commercial
value,159 and in any event such a person may have a claim for
emotional or other dignitary harm on right of privacy grounds.160
Extending identity or style. One kind of problem case involves
the plaintiff’s claim to protection for her public style or distinctive
performing persona rather than her name or likeness–that is,
protection for a combination of demeanor, dress, and intangible
aspects of personality.161 Courts have held that an Elvis Presley
imitation infringed rights of publicity,162 and that a TV news
publication depiction of the late Zacchini’s entire cannon-ball act
would be an infringement, even though the tape was legitimately
made.163 The Ninth Circuit held that a parodic ad showing a robot,
dressed in clothes and jewelry similar to those worn by television
personality Vanna White, and sporting her hair style, was an
infringement of her right of publicity.164 The reference to Vanna
White was unmistakable to those who watch TV game shows.
Although White did not own the exclusive right to dress and
bejewel herself in that particular way, the court
1209
thought the advertiser could be liable for using her “identity”

for commercial purposes.165 Proof that defendant published a TV
commercial in which a bandleader is shown playing Auld Lang
Syne on New Year’s Eve with the tempo and gestures of Guy
Lombardo, was sufficient to create a factual question whether the
defendant was guilty of a commercial appropriation of Lombardo’s
identity.166 Other cases have given actors rights in their portrayal
of fictional characters, even though the actors do not own the
copyright on the script and did not create the set in which they
acted.167 Such cases raise questions whether the defendant has
appropriated something of the plaintiff’s personality or has merely
appropriated the role he was playing, which, in the medieval
metaphysics of intellectual property, is owned by someone else
altogether.
Descendability. Some courts and legislatures have expanded168
the right of publicity in another direction by holding that the right
of publicity survives the death of the person whose identity is used,
permitting the estate of performers like Elvis Presley or their
licensees to control the uses of the image and even the general
style of the performer long after the performer’s death.169 Some
other states, by statute or otherwise, have limited the right of
publicity to the protection of living persons,170 and England does
not recognize the claim at all with the result that, where English
law governs, American entrepreneurs can sell dolls and plates
commemorating Princess Diana without approval from her
estate.171 But about half of the states, by statute or court decision,
have permitted descent of the right to heirs or devisees.172
Criticisms and alternatives. The leading treatise author on the
subject strongly favors the right of publicity,173 but some thinkers
have suggested that protection ought to extend mainly to the use of
name or likeness. One potential limitation upon the more
expansive forms of the publicity right is that the federal copyright
statute could be interpreted to preempt some publicity rights, as
the Seventh Circuit actually held.174 More recently, it has become
possible to see that protection of intangible rights in a performer’s
persona apart from name and likeness is really not protection of
identity but protection for creative efforts. Protection for creative
efforts, it can be argued, should be
1210
left to copyright laws when the creation is fixed in a tangible

medium, and otherwise left to confidentiality agreements or to the
public domain.175 Behind the desire to restrict liability for less-
tangible aspects of persona are concerns for free speech and free
competition. In addition, as has been noted in connection with
copyright issues, art historically builds on art, even if it uses ideas
or forms peculiarly associated with others artists. Too much
restriction on the ability of one artist such as an Elvis
impersonator may not only reward fame; it may defeat creativity
as well.
________________________________
1 Restatement of Unfair Competition § 1 (1995). Among the multi-
volume treatises discussing this topic are J. Thomas McCarthy,
Trademarks and Unfair Competition (4th ed., updated on Westlaw in
MCCARTHY database) (hereinafter McCarthy on Trademarks); and Louis
Altman & Malla Pollack, Callman on Unfair Competition, Trademarks &
Monopolies (4th ed., updated on Westlaw in CALLMAN database)
(hereinafter Callman on Unfair Competition).
2 See § 46.4.
3 See § 46.2.
4 See § 46.3.
5 See § 46.5.
6 See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141,
109 S.Ct. 971, 103 L.Ed.2d 118 (1989).
2011 & Supp.).
8 Restatement of Unfair Competition § 4 (1995).
9 E.g., Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250 (9th Cir.
1982).
10 See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S.
23, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003).
11 See 15 U.S.C.A. § 1114 (1) (any person who uses in commerce a
reproduction, counterfeit, copy or imitation of a registered mark in
connection with a sale or advertising of any goods or services is liable in a
civil action brought by the registrant).
12 See Board of Supervisors for Louisiana State University
Agricultural and Mechanical College v. Smack Apparel Co., 550 F.3d 465
(5th Cir. 2008) (clothing manufacturer who used universities’ color
schemes and other indentifying indicia, which created a likelihood of
confusion); Restatement of Unfair Competition § 9 (1995).
13 See Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 115 S.Ct.
1300, 131 L.Ed.2d 248 (1995).
14 Restatement of Unfair Competition § 16 (1995); see § 46.4.
16 See American Rice, Inc. v. Producers Rice Mill, Inc., 518 F.2d 321
(5th Cir. 2008).
17 See McCarthy on Trademarks § 5:2.
18 Evidence of the defendant’s intent to confuse is relevant, but not
determinative of the issue of likelihood of confusion. American Rice, Inc. v.
Producers Rice Mill, Inc., 518 F.2d 321 (5th Cir. 2008). With trade names,
collective and certifying marks, the relevant confusion is about the
business, collective, or certifying organization. See Restatement of Unfair
Competition § 20 (1995).
19 Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93 (2d Cir. 2010); August
Storck K.G. v. Nabisco, Inc., 59 F.3d 616 (7th Cir. 1995); Playboy
Enterprises, Inc. v. Welles, 279 F.3d 796 (9th Cir. 2002).
20 McCarthy on Trademarks §§ 16:1 & 16:4.
21 See, e.g., American Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d
321 (5th Cir. 2008) (girl design used on rice bags).
22 Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 120 S.Ct.
1339, 146 L.Ed.2d 182 (2000).
23 See Douglas Labs. Corp. v. Copper Tan, 210 F.2d 453 (2d Cir.
1952) (“Coppertone” designation for sun tan lotion is fanciful, not
descriptive).
24 Restatement of Unfair Competition § 13, Ills. 1 & 4 (1995).
25 Id. § 14.
26 Even a famous person’s name may be protectable on this ground.
See Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003) (civil rights icon
Rosa Parks stated a Lanham Act claim against defendants who used her
name as a song title without her permission).
27 See, e.g., Ward One Democrats, Inc. v. Woodland, 898 A.2d 356
(D.C. 2006) (political organization’s name, “Ward One Democrats,” was
generic and thus not entitled to trademark protection).
28 Restatement of Unfair Competition § 15 & cmt. a (1995).
29 See, e.g., One Industries, LLC v. Jim O’Neal Distributing, Inc.,
578 F.3d 1154 (9th Cir. 2009) (no likelihood of confusion between marks
used by two competitors for motocross clothing); Water Pik, Inc. v. Med-
Systems, Inc., 725 F.3d 1136 (10th Cir. 2013) (isolated instances of actual
confusion between SinuSense mark and SinuCleanse mark of competitor
were insufficient to prove a likelihood of confusion; “Sinu” is essentially
generic, making the SinuCleanse mark “conceptually weak”); North Am.
Medical Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211 (11th Cir. 2008)
(defendant’s use on its website of “metatags” of plaintiff’s trademarks
resulted in a likelihood of confusion).
30 KP Permanent Make-Up, Inc. v. Lasting Impressions I, Inc., 543
U.S. 111, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004) (availability of a “fair use”
defense does not alter the burden of proof on the likelihood of confusion
issue); Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638
F.3d 1137 (9th Cir. 2011) (plaintiff’s showing of likelihood of consumer
confusion insufficient to support injunctive relief; in internet context,
emerging technologies require a “flexible approach” to the issue).
31 See, e.g., Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188
(5th Cir. 1998) (discussing complex factors that trial court should have
weighed to determine likelihood of confusion); see also, e.g., Hormel Foods
Corp. v. Jim Henson Productions, 73 F.3d 497 (2d Cir. 1996); Fortress
Grand Corp. v. Warner Bros. Entertainment Inc., 763 F.3d 696 (7th Cir.
2014).
32 See Restatement of Unfair Competition § 21 (1995) (listing
evidentiary considerations).
33 Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658 (5th
Cir. 2000) (magazine publisher using the name “Polo” infringed the
trademark of the designer Ralph Lauren, where the public could think the
designer would publish a magazine with that name even though he did
not).
34 See, e.g., E.S.S. Entertainment 2000, Inc. v. Rock Star Videos,
Inc., 547 F.3d 1095 (9th Cir. 2008) (video-game creator’s depiction of a club
called “Pig Pen” was protected by First Amendment in infringement suit
brought by owner of a strip club called “Play Pen Gentlemen’s Club”; no
likelihood of confusion).
35 See Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir.
2002); but see Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003).
36 Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221
F.Supp.2d 410 (S.D.N.Y. 2002) (granting summary judgment for
defendant).
37 Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 464
F.Supp.2d 495 (E.D. Va. 2006) (granting summary judgment for
defendant, who used the name for its low-priced pet chew-toys, in suit by
“Louis Vuitton” trademark holder, a manufacturer of high-end consumer
products).
38 Triangle Publ’ns, Inc. v. Rohrlich, l67 F. 2d 969 (2d Cir. l948),
overruled on other grounds, Monsanto Chem. Co. v. Perfect Fit Products
Mfg. Co., 349 F.2d 389 (2d Cir. 1965).
39 Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604
F. 2d 200 (2d Cir. l979).
40 E.g., Mass. Gen. L. Ann. 110B § 12; Tex. Stat. & Code Ann. §
16.29.
41 15 U.S.C.A. § 1125 (c).
42 See Allied Maintenance Corp. v. Allied Mechanical Trades, Inc.,
42 N.Y.2d 538, 369 N.E.2d 1162, 399 N.Y.S.2d 628 (1977) (reflecting
legislative purpose to stop “the whittling away of an established
trademark’s selling power and value through its unauthorized use by
others upon dissimilar products”).
43 See Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct.
1115, 155 L.Ed.2d 1 (2003) (no likelihood of confusion needed, but proof of
actual dilution required to prove a federal dilution claim); Restatement of
Unfair Competition § 25(1) (1995).
44 Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42
N.Y.2d 538, 545, 369 N.E.2d 1162, 1166, 399 N.Y.S.2d 628 (1977).
45 Restatement of Unfair Competition § 25 (1995); see New York
Stock Exchange, Inc. v. New York, New York Hotel, LLC, 293 F.3d 550 (2d
Cir. 2002) (under federal anti-dilution law, the mark must be inherently
distinctive; acquired distinctiveness is not enough).
46 A mark may be “famous” in a niche market and still be entitled to
protection, where the parties are both operating in that niche market. See
Times Mirror Magazines v. Las Vegas Sports News, 212 F.3d 157 (3d Cir.
2000) (affirming injunction against publisher of the “Las Vegas Sporting
News” by the publisher of “The Sporting News,” a national publication);
Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633 (7th Cir.
1999) (“famous” trade dress in niche floral market).
47 Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42
N.Y.2d 538, 369 N.E.2d 1162, 399 N.Y.S.2d 628 (1977).
48 E.g., Community Fed. Sav. & Loan Ass’n v. Orondorff, 678 F.2d
1034 (11th Cir. 1982) (bank’s “cookie jar” mark for ATM diluted by use of
“Cookie Jar” for place of adult entertainment); cf. Dallas Cowboys
Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F. 2d 200 (2d Cir. l979).
49 Chemical Corp. of America v. Anheauser-Busch, Inc., 306 F.2d
433, 2 A.L.R.3d 739 (1962).
50 See Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct.
1115, 155 L.Ed.2d 1 (2003) (while many state statutes require only a
likelihood of dilution, the federal statute requires proof of actual dilution).
51 See Id. (no tarnishment where there was no evidence that anyone
“formed a different impression” of Victoria’s Secret as a result of
defendant’s use of the name “Victor’s Little Secret” for its store).
52 Ty Inc. v. Perryman, 306 F.3d 509 (7th Cir. 2002).
53 See Deere & Co. v. MTD Products, Inc., 41 F.3d 39 (2d Cir. 1994).
54 Restatement of Unfair Competition § 25(2) (1995).
55 L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.
1987); Charles Atlas, Ltd. v. DC Comics, Inc., 112 F.Supp.2d 330 (S.D.N.Y.
2000) (use of plaintiff’s character in a comic-book story that parodied him);
see also Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002)
(song lampooning Barbie doll and values attributed to the doll was not
purely commercial and was thus exempted from the interdictions of the
federal antidilution statute). The U.S. Olympic Committee enjoys special
statutory protection so that its trademark will not be diluted or tarnished.
See San Francisco Arts & Athletics, Inc. v. United States Olympic
Committee, 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987)
(prohibiting the use of the word “Olympic” for “Gay Olympic Games”).
56 See Mutual of Omaha Ins. Co. v. Novak, 775 F.2d 247 (8th Cir.
1985) (affirming injunction; “Mutant of Omaha” name used on clothing by
opponent of nuclear war would confuse purchasers).
57 See Dan L. Burk, Cybermarks, 94 Minn. L. Rev. 1375 (2010).
Federal statutes increasingly address some of these issues. The
Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C.A. § 1125
(d), (section 43(d) of the Lanham Act), provides a remedy to trademark
holders against those who register distinctive marks as Internet domain
names with the intent to profit from their goodwill. See Coca-Cola Co. v.
Purdy, 382 F.3d 774 (8th Cir. 2004) (upholding injunction against
defendant who registered such domain names as “drinkcoke.org,”
“mycocacola.com,” and “mypepsi.org,” and linked those names to the
website “abortionismurder.com,” which contained anti-abortion messages
and graphic photos of aborted fetuses).
59 “(1) Any person who, on or in connection with any goods or
services, or any container for goods, uses in commerce any word, term,
name, symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or false or
misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to
the affiliation, connection, or association of such person with another
person, or as to the origin, sponsorship, or approval of his or her goods,
services, or commercial activities by another person….”
§ 43(a)(1)(A), 15 U.S.C. § 1125(a)(1)(A).
60 “Section 43(a) of the Lanham Act prohibits actions like trademark
infringement that deceive consumers and impair a producer’s goodwill. It
forbids, for example, the Coca-Cola Company’s passing off its product as
Pepsi-Cola or reverse passing off Pepsi-Cola as its product.” Dastar Corp.
v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S.Ct. 2041, 156
L.Ed.2d 18 (2003).
61 Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753,
120 L.Ed.2d 615 (1992); Courtenay Communications Corp. v. Hall, 334
F.3d 210 (2d Cir. 2003).
62 See § 46.4.
63 McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511
F.3d 350 (3d Cir. 2007).
64 § 43(a)(3), 15 U.S.C.A. § 1125(a)(3).
1339, 146 L.Ed.2d 182 (2000).
66 E.g., Vascular Solutions, Inc. v. Marine Polymer Technologies,
Inc., 590 F.3d 56 (1st Cir. 2009); see § 43.1.
67 E.g. American Washboard Co. v. Saginaw Mfg. Co., 103 F. 281
(6th Cir. 1900). For history and exceptions, see Restatement of Unfair
Competition § 2, cmt. b (1995).
68 § 43(a)(1)(B), 15 U.S.C.A. § 1125(a)(1)(B).
69 15 U.S.C.A. § 1125(a)(2). The Supreme Court has held that one
competitor may sue another for false advertising under the Lanham Act
over FDCA-compliant food labels. POM Wonderful LLC v. Coca-Cola Co.,
134 S.Ct. 2228 (2014) (claim that Minute Maid’s “Pomegranate Blueberry”
juice label misled consumers into believing it was primarily made up of
those two juices, when it is less than one percent of either, resulting in a
loss of sales for POM’s Pomegranite Blueberry juice, which is 100 percent
those two juices).
70 See Uniform Deceptive Trade Practices Act § 2.
71 For the common law claims of disparagement or injurious
falsehood, see § 43.1.
72 McCarthy favors importing the common law rules into the
statutory action. See McCarthy on Trademarks § 27:91.
73 See § 43.1.
74 Gmurzynska v. Hutton, 355 F.3d 206 (2d Cir. 2004); cf. NXIVM
Corp. v. Ross Institute, 364 F.3d 471 (2d Cir. 2004) (cult de-programmer’s
critique of executive success seminar was not “commercial advertising or
promotion” under § 43(a) because the contested representations were not
“part of an organized campaign to penetrate the relevant market”).
75 See Lexmark Intern., Inc. v. Static Control Components, Inc., 134
S.Ct. 1377, 188 L.Ed.2d 392 (2014). State consumer protection statutes
may allow a broader class of plaintiffs to sue for false advertising and
other deceptive trade practices. See, e.g., N.Y. Gen Bus. Law § 349 (h); Pa.
Stat. § 201–9.2.
76 “Under section 43(a), two categories of actionable statements
exist: (1) literally false factual commercial claims; and (2) literally true or
ambiguous factual claims which implicitly convey a false impression, are
misleading in context, or [are] likely to deceive consumers.” American
Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (8th Cir. 2004)
(quoting). If a statement in an ad is literally false, it may be actionable
without any reference to the ad’s impact on the buying public; where it is
not literally false, the evidentiary burden is higher. See Hall v. Bed Bath
& Beyond, Inc., 705 F.3d 1357 (Fed. Cir. 2013).
77 American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387
(8th Cir. 2004) (“Puffery exists in two general forms: (1) exaggerated
statements of bluster or boast upon which no reasonable consumer would
rely; and (2) vague or highly subjective claims of product superiority,
including bald assertions of superiority.”); Pizza Hut, Inc. v. Papa John’s
Intern., Inc., 227 F.3d 489 (5th Cir. 2000) (“Bald assertions of superiority
or general statements of opinion cannot form the basis of Lanham Act
liability.”).
78 Pizza Hut, Inc. v. Papa John’s Intern., Inc., 227 F.3d 489 (5th Cir.
2000); McCarthy on Trademarks § 27:35.
79 See §§ 43.4 & 43.8.
80 See B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 258 F.3d 578
(7th Cir. 2001) (citing cases from many jurisdictions).
81 See Restatement of Unfair Competition § 36 & cmt. a (1995) (“The
general rules relating to recovery of compensatory damages in tort actions
apply in actions for unfair competition.”).
82 See Id. § 37. Accounting for profits permits a recovery of the gains
obtained by the defendant as a result of the tort and presents special
problems of measurement. See 2 Dan B. Dobbs, Law of Remedies § 6.4(4)
(2d ed. 1993).
83 Tim Torres Enterprises, Inc. v. Linscott, 142 Wis.2d 56, 416
N.W.2d 670 (1987).
85 See Id., § 6.4(5); North American Medical Corp. v. Axiom
Worldwide, Inc., 522 F.3d 1211 (11th Cir. 2008) (discussing requirements
for an injunction in a Lanham Act case).
120 L.Ed.2d 615 (1992); see also Restatement of Unfair Competition § 16
(1995).
87 Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 120
S.Ct. 1339 (2000); See McCarthy on Trademarks § 8:1.
88 See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct.
2753, 120 L.Ed.2d 615 (1992).
89 Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159, 115
S.Ct. 1300 (1995).
90 E.g., Nora Beverages, Inc. v. Perrier Group of America, Inc., 164
F.3d 736 (2d Cir. 1998).
91 Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225 (5th
Cir. 2010).
92 E.g., American Greetings Corporation v. Dan-Dee Imports, Inc.,
807 F.2d 1136 (3d Cir. 1986); Groenevelt Transport Efficiency, Inc. v.
Lubecore Intern., Inc., 730 F.3d 494 (6th Cir. 2013); Restatement of Unfair
Competition § 16 (1995).
93 Eppendorf-Netheler-Hinz GMBH v. Ritter GMBH, 289 F.3d 351
(5th Cir. 2002).
94 Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159, 165, 115
S.Ct. 1300, 1304, 131 L.Ed.2d 248 (1995) (“if it is essential to the use or
purpose of the article or if it affects the cost or quality of the article”);
Restatement of Unfair Competition § 17 (1995) (a feature is functional if it
affords benefits in marketing independent of the feature’s value as
indicating the source of the goods and if those benefits are important in
effective competition and if they cannot be captured in other ways);
McCarthy on Trademarks, supra n.2, at § 7:69.
95 Publications Intern., Ltd. v. Landoll, Inc., 164 F.3d 337, 340 (7th
Cir. 1998).
96 Traffix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 149
L.Ed.2d 164, 121 S.Ct. 1255 (2001).
97 Restatement of Unfair Competition § 17 (1995). See Dippin’ Dots,
Inc. v. Frosty Bites Distribution, LLC, 369 F.3d 1197, 1203 (11th Cir.
2004) (size, shape, and color of small spheres of flash frozen ice cream were
aesthetically functional under “the competitive necessity test … generally
applied in cases of aesthetic functionality,” namely, that a product’s
feature is functional if its exclusive use by one competitor would put other
competitors at “a significant non-reputation-related disadvantage”). Judge
Posner gave this example of aesthetic functionality: “Mink coats are
normally sold dyed. The dye does not make the coat any warmer, but it
makes it more beautiful, and, once again, it could not be claimed as trade
dress by the first furrier to have hit on the idea.” Publications Intern., Ltd.
v. Landoll, Inc., 164 F.3d 337 (7th Cir. 1998).
98 U.S. Const., Art. I, § Cl. 8; Bonito Boats, Inc. v. Thunder Craft
Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989)
(preemption of patent-like laws).
99 Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273
(1972).
100 See 35 U.S.C.A. §§ 102 & 103.
101 35 U.S.C.A. § 154 (with some variation in the term depending
upon circumstances and patent type).
102 Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109
S.Ct. 971, 103 L.Ed.2d 118 (1989). As to boat hulls specifically, Congress
itself has now provided protection against copying in 1998. 17 U.S.C.A. §
1301.
103 Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11
L.Ed.2d 661 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S.
234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964).
120 L.Ed.2d 615 (1992); Publications Intern., Ltd. v. Landoll, Inc., 164
F.3d 337 (7th Cir. 1998).
1339, 146 L.Ed.2d 182 (2000). This decision will require courts to draw a
distinction between trade dress, which may be inherently distinctive, and
product design, which the Court holds cannot be.
107 Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273
(1972).
108 See Phillips v. Frey, 20 F.3d 623 (5th Cir. 1994) (prospective seller
enthusiastically revealed too much; buyers implicitly accepted the
information in confidence).
109 See Restatement of Unfair Competition § 39, cmt. h (1995).
110 Joyce v. General Motors Corp., 49 Ohio St.3d 93, 551 N.E.2d 172
(1990) (employee not entitled to compensation under the terms of
employee suggestion program); Martin v. Little, Brown and Co., 304 Pa.
Super. 424, 450 A.2d 984 (1981) (stranger not entitled to compensation for
notifying publisher that its copyright had been infringed by others).
111 See Roger M. Milgrim, Trade Secrets (4 vols. with supps. 2010).
113 E.g., Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110
(2d Cir. 2009); In re Bass, 113 S.W.3d 735 (Tex. 2003). Information is not
“secret” if it has been actually disclosed earlier to a person with no duty to
keep it confidential. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986,
104 S.Ct. 2862, 81 L.Ed.2d 815 (1984); BondPro Corp. v. Siemens Power
Generation, Inc., 463 F.3d 702 (7th Cir. 2006).
114 See Western Forms, Inc., 308 F.3d 930 (8th Cir. 2002) (customer
lists, pricing information and “bidding structure” not protectable trade
secrets because they were readily ascertainable); Buffets, Inc. v. Klinke, 73
F.3d 965 (9th Cir. 1996) (recipes and employee manuals could easily be
discovered by others; plaintiff failed to make reasonable efforts to
maintain their secrecy); Aetna Building Maintenance Co., Inc. v. West, 39
Cal.2d 198, 246 P.2d 11 (1952) (prospective customers readily
discoverable); Cemen Tech, Inc. v. Three D Industries, LLC, 753 N.W.2d 1
(Iowa 2008) (issue of fact whether information used by plaintiff’s former
employee to develop a competing cement mixer was “readily
ascertainable”); Uniform Trade Secrets Act § 1(4).
115 E.g., MP TotalCare Services, Inc. v. Mattimoe, 648 F.Supp.2d 956
(N.D. Ohio 2009).
116 See, e.g., Hertz v. Luzenac Group, 576 F.3d 1003 (10th Cir. 2009);
Incase Inc. v. Timex Corp., 488 F.3d 46 (1st Cir. 2007); Air Turbo Systems
AG v. Turbousa, Inc., 774 F.3d 979 (Fed. Cir. 2014); Tyson Foods v. Con
Agra, Inc., 349 Ark. 469, 79 S.W.3d 326 (2002); Callman on Unfair
Competition § 14:26.
117 Integrated Cash Management Services, Inc. v. Digital
Transactions, Inc., 920 F.2d 171 (2d Cir. 1990); Pinchera v. Allstate Ins.
Co., 144 N.M. 601, 190 P.3d 322 (2008).
118 Learning Curve Toys, Inc. v. Playwood Toys, Inc., 342 F.3d 714
(7th Cir. 2003); Softel, Inc. v. Dragon Medical and Scientific
Communications, Inc., 118 F.3d 955 (2d Cir. 1997); Dionne v. Southeast
Foam Converting & Packaging, Inc., 240 Va. 297, 397 S.E.2d 110 (1990).
119 Restatement of Unfair Competition § 39, cmt. e (1995).
120 E.I. du Pont de Nemours & Co. v. Christopher, 431 F.2d 1012 (5th
Cir. 1970) (overflights with photography to reveal plant structure which in
turn would reveal nature of secret process). The set of special trade secret
rules displaces an ordinary conversion analysis. See 4 Dobbs, Hayden &
121 See generally Restatement of Unfair Competition § 40 (1995).
122 E.g., Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112 (Fed. Cir.
1996).
123 See Forest Laboratories, Inc. v. Pillsbury Co., 452 F.2d 621 (7th
Cir. 1971); Restatement of Unfair Competition § 40(b) & cmt. d (1995).
124 E.g., Henry Hope X-Ray Products, Inc. v. Marron Carrel, Inc., 674
F.2d 1336 (9th Cir. 1982). For all these remedies, see 2 Dan B. Dobbs, Law
of Remedies § 10.5(3) (2d ed. 1993).
125 See, e.g., Pioneer Hi-Bred Intern. v. Holden Foundation Seeds,
Inc., 35 F.3d 1226 (8th Cir. 1994).
126 Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112 (Fed. Cir.
1996); see also World Wide Prosthetic Supply, Inc. v. Mikulsky, 251 Wis.2d
45, 640 N.W.2d 764 (2002) (approving broader damages, including the
plaintiff’s loss of profits resulting because the defendant used the trade
secret in its production of defective products for which the plaintiff might
be blamed by customers).
127 Learning Curve Toys, Inc. v. Playwood Toys, Inc., 342 F.3d 714
(7th Cir. 2003) (applying Illinois law). The Uniform Trade Secrets Act §
3(b) limits punitive damages to double the compensatory damages.
128 18 U.S.C.A. §§ 1831 to 1839.
2011 & Supp.).
130 Mortgage Specialists, Inc. v. Davey, 153 N.H. 764, 904 A.2d 652
(2006).
131 See Orca Communications Unlimited, LLC v. Noder, 337 P.3d 545
(Ariz. 2014) (state Trade Secrets Act does not displace common law claims
based on alleged misappropriation of confidential information that does
not constitute trade secrets); Burbank Grease Services, LLC v. Sokolowski,
294 Wis.2d 274, 717 N.W.2d 781 (2006) (interference with contract or
prospects claim for taking employer’s information not preempted or
displaced by trade secret statute).
132 Mortgage Specialists, Inc. v. Davey, 153 N.H. 764, 904 A.2d 652
(2006) (“a claim is not preempted where the elements of the claim require
some allegation or factual showing in addition to that which forms the
basis for a claim of misappropriation of a trade secret;” statements made
by defendant to plaintiff’s customers were not part of the misappropriation
and permitted a claim for interference with economic opportunity).
133 E.g., BondPro Corp. v. Siemens Power Generation, Inc., 463 F.3d
702 (7th Cir. 2006).
134 Religious Technology Center v. F.A.C.T.NET, Inc., 901 F.Supp.
1519 (D. Colo. 1995) (secret works of Scientology’s founder had escaped
into the public domain, although the Church had worked hard to keep the
works secret).
135 Roboserve, Ltd. v. Tom’s Foods, Inc., 940 F.2d 1441 (11th Cir.
1991); see Restatement of Unfair Competition § 43 (1995).
136 As Holmes put it, “The word ‘property’ as applied to trademarks
and trade secrets is an unanalyzed expression of certain secondary
consequences of the primary fact that the law makes some rudimentary
requirements of good faith. Whether the plaintiffs have any valuable
secret or not the defendant knows the facts, whatever they are, through a
special confidence that he accepted. The property may be denied, but the
confidence cannot be. Therefore the starting point for the present matter is
not property or due process of law, but that the defendant stood in
confidential relations with the plaintiffs….” E.I. du Pont de Nemours
Powder Co. v. Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L.Ed. 1016 (1917).
There are indisputably some property aspects; for example, trade secrets
may also be “taken” by the government, and if so, due process requires
compensation. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct.
2862, 81 L.Ed.2d 815 (1984).
137 Restatement Third of Agency § 8.01, cmt. c (2006); Restatement
Second of Agency §§ 395 & 396 (1959).
138 Restatement Third of Agency § 8.05(2) (2006).
139 E.g., Leo Publications, Inc. v. Reid, 265 Ga. 561, 458 S.E.2d 651
(1995) (list of employer’s customers not a trade secret, but employee must
return the original list, made in the course of employment, to the employer
after the employee has left the company); Home Pride Foods, Inc. v.
Johnson, 262 Neb. 701, 634 N.W.2d 774 (2001) (customer list a trade
secret where list had independent economic value, was kept secret, and
competitor paid $800 for a stolen copy); see K. H. Larsen, Annotation,
Former Employee’s Duty, in Absence of Express Contract, Not to Solicit
Former Employer’s Customers or Otherwise Use His Knowledge of
Customer Lists Acquired in Earlier Employment, 28 A.L.R.3d 7 (1970).
140 Carl A. Colteryahn Dairy, Inc. v. Schneider Dairy, 415 Pa. 276,
203 A.2d 469 (1964).
141 PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995) (marketing
strategies, six month injunction against work for direct competitor).
142 See § 38.2.
143 The leading treatise on this topic is J. Thomas McCarthy,
Publicity and Privacy (2d ed., updated on Westlaw in RTPUBPRIV
database) (hereinafter McCarthy on Publicity and Privacy).
144 See Restatement of Unfair Competition §§ 46 to 49 (1995); 1
McCarthy on Publicity and Privacy § 5:63. If the plaintiff’s identity has
become associated with goods or services he produces, he may have a
trademark interest in it as well.
145 See Stephano v. News Group Publications, Inc., 64 N.Y.2d 174,
474 N.E.2d 580, 485 N.Y.S.2d 220 (1984).
146 See Restatement of Unfair Competition § 47 (1995) (defining “for
purposes of trade”). In Tyne v. Time Warner Entertainment Co., L.P., 901
So.2d 802 (Fla. 2005), a movie, The Perfect Storm, was a fictionalized
version of a real event in which several men died. Their survivors sued,
complaining of the fictional depiction of the men and of themselves. The
court held that a movie that does not promote the sale of a product is not a
commercial or advertising purpose and hence not actionable under the
state’s commercial appropriation statute.
147 Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001)
(use of an image of Dustin Hoffman’s face with a digitally grafted body in a
feature story was not commercial and would not be actionable absent
knowing or reckless falsehood required for protection of noncommercial
speech); Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001) (music
video). See also Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir.
2014) (advertisement for defendant’s store that used Michael Jordan’s
name and a photo of his basketball shoes, and purported to congratulate
him on his induction into the NBA Hall of Fame, was commercial speech
for First Amendment purposes).
148 Ruffin-Steinback v. dePasse, 267 F.3d 457 (6th Cir. 2001)
(fictionalized biographical treatment of musical group The Temptations in
a television miniseries not actionable as invasion of right of publicity);
Seale v. Gramercy Pictures, 949 F.Supp. 331 (E.D. Pa. 1996) (former Black
Panther and civil rights activist Bobby Seale did not state a claim for
violation of the right of publicity where defendant used his name and
likeness in film, book, and home video, but fact questions remained on
whether film portrayed him in a false light).
149 See Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003) (civil
rights pioneer Rosa Parks established a state-law right of publicity claim
against defendant who used her name as the title of a song, but fact issues
remained on whether defendants were protected by the First Amendment).
150 Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d
959 (10th Cir. 1996); see also Comedy III Productions, Inc. v. Gary
Saderup, Inc., 25 Cal.4th 387, 21 P.3d 797, 106 Cal.Rptr.2d 126 (2001)
(strong statements recognizing protection for transformative uses). In both
these cases, the alleged appropriation was embodied in a product—parodic
baseball cards and tee-shirts respectively—so the defendants’ purposes
were for trade even though there was no advertisement.
151 C.B.C. Distribution and Marketing, Inc. v. Major League Baseball
Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007).
152 Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) (manner
in which former college football player’s identity was incorporated into
football-related video games did not satisfy transformative use test);
Winter v. DC Comics, 30 Cal.4th 881, 69 P.3d 473, 134 Cal.Rptr.2d 634
(2003) (defendants’ fictional work that used “Autumn Brothers” to refer to
plaintiffs, rock and blues musicians and siblings Edgar and Johnny
Winter, and gave the fictional Autumns displeasing characteristics, was
transformative and thus protected).
153 Winter v. DC Comics, 30 Cal.4th 881, 889, 69 P.3d 473, 478, 134
Cal.Rptr.2d 634, 640 (2003); Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo.
2003) (“[T]he metaphorical reference to Twist, though a literary device,
has very little literary value compared to its commercial value. On the
record here, the use and identity of Twist’s name has become
predominantly a ploy to sell comic books and related products rather than
an artistic or literary expression, and under these circumstances, free
speech must give way to the right of publicity.”).
154 See Henley v. Dillard Department Stores, 46 F.Supp.2d 587 (N.D.
Tex. 1999) (department store advertisement for shirt, labeling it “Don’s
henley,” wrongfully appropriated famous rock musician’s name for the
value associated with it); Hirsch v. S.C. Johnson & Son, Inc., 90 Wis.2d
379, 280 N.W.2d 129 (1979) (use of famous athlete plaintiff’s nickname
“Crazylegs”).
155 Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) (wrongful
use of Tom Waits “sound-alike” in radio commercial), abrogated on other
grounds, Lexmark Intern., Inc. v. Static Control Components, Inc., 134
S.Ct. 1377, 188 L.Ed.2d 392 (2014); Midler v. Ford Motor Co., 849 F.2d 460
(9th Cir. 1988) (wrongful use of Bette Midler “sound-alike” in television
commercial).
156 Ali v. Playgirl, Inc., 447 F.Supp. 723 (S.D.N.Y. 1978) (seemingly
realistic drawing or cartoon depicting Muhammad Ali nude). So far as an
advertisement implies the plaintiff’s endorsement by using a look-alike
actor, the advertiser may also be guilty of false advertising or passing off.
Allen v. National Video, Inc., 610 F.Supp. 612 (S.D.N.Y. 1985) (Woody
Allen look-alike in ad).
157 Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th
Cir. 1983).
158 E.g., Comedy III Productions, Inc. v. Gary Saderup, Inc., 25
Cal.4th 387, 21 P.3d 797, 106 Cal.Rptr.2d 126 (2001); Martin Luther King,
Jr., Center for Social Change, Inc. v. American Heritage Products, Inc.,
250 Ga. 135, 296 S.E.2d 697 (1982) (bust of Dr. Martin Luther King
infringed right of publicity). Once the plaintiff has licensed the use of her
identity on items like tee-shirts, the purchaser of the tee-shirt is entitled
to use it and even to resell it. See Allison v. Vintage Sports Plaques, 136
F.3d 1443 (11th Cir. 1998).
159 See Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (6th Cir.
2000); Hauf v. Life Extension Foundation, 547 F.Supp.2d 771 (W.D. Mich.
2008).
160 See Restatement of Unfair Competition § 49, cmt. b (1995).
161 See Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (6th Cir.
2000) (discussing several cases).
162 Presley’s Estate v. Russen, 513 F.Supp. 1339 (D.N.J. 1981).
163 Zacchini v. Scripps Howard Broadcasting Co., 433 U. S. 562, 97
S.Ct. 2849 53 L.Ed.2d 965 (1977).
164 White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th
Cir. 1992).
165 Some courts have rejected the notion that a “character” created by
a person is the same as that person’s “identity.” See Donchez v. Coors
Brewing Co., 392 F.3d 1211 (10th Cir. 2004) (brewery’s use of term
“beerman” in advertising did not violate the right of publicity of plaintiff
beer vendor who had developed the character “Bob the Beerman” at
athletic events; while the “character might have been a celebrity, the
vendor was not,” and the brewery did not use the vendor’s actual likeness
in its ads).
166 Lombardo v. Doyle, Dane & Bernbach, Inc., 58 A.D.2d 620, 396
N.Y.S.2d 661 (1977).
167 Wendt v. Host Intern., Inc., 125 F.3d 806 (9th Cir. 1997) (“Norm”
and “Cliff” of the television program Cheers).
168 Rights of privacy and reputation traditionally die with the person,
so that, for example, there is no liability for “defaming” the dead.
169 Cal. Civ. Code § 990 (only specifying name, voice, signature,
photograph or likeness); Presley’s Estate v. Russen, 513 F.Supp. 1339
(D.N.J. 1981) (performance style and pose); Martin Luther King, Jr.,
Center for Social Change, Inc. v. American Heritage Products, Inc., 250
Ga. 135, 296 S.E.2d 697 (1982).
170 New York’s statute refers specifically to living persons, and has
been held to be the exclusive source of rights in New York. Stephano v.
News Group Publications, Inc., 64 N.Y.2d 174, 474 N.E.2d 580, 485
N.Y.S.2d 220 (1984).
171 Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002)
(holding that California statutory rights did not govern and that the estate
its assignees had no right under English law).
172 See 2 McCarthy on Publicity and Privacy § 9.18 (listing states).
E.g., Toffoloni v. LFP Publ’g Group, LLC, 572 F.3d 1201 (11th Cir. 2009)
(estate of professional female wrestler stated claim for violation of right of
publicity against publisher of nude photographs taken 20 years prior to
her death).
173 See 1 McCarthy on Publicity and Privacy § 5:67.
174 Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n,
805 F.2d 663 (7th Cir. 1986).
175 See David W. Melville & Harvey S. Perlman, Protection for Works
of Authorship Through the Law of Unfair Competition: Right of Publicity
and Common Law Copyright Reconsidered, 42 St. Louis U. L.J. 363 (1998).
1211
Table of Cases
__________
509 Sixth Avenue Corp. v. New York City Transit

Authority................................... 95
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center,
Inc.......................... 745
625 3rd St. Assocs., L.P. v. Alliant Credit
Union.................................................. 1133
A. v. B..................................................... 1170
A.B., Matter of......................................... 173
A.C., In re................................................. 514
A.H. v. Rockingham Publ’g Co., Inc........ 266
A.J. Decoster Co. v. Westinghouse Elec. Corp............................................
804, 1085
A.O. Smith Corp. v. United States......... 556
A.R.B. v. Elkin........................................... 83
A.R.H. v. W.H.S....................................... 621
A.S. Beck Shoe Corp. v. Johnson.......... 1094
A.W. v. Lancaster Cnty. Sch. Dist. 0001............................... 205, 212, 647,
713
Abbott Labs. v. TEVA Pharms. USA, Inc.......................................................
1109
Abebe v. Benitez...................................... 292
Abernathy & Closther v. Buffalo Broad. Co.,
Inc....................................................... 1114
Ablin v. Richard O’Brien Plastering Co..........................................................
694
ABN AMRO Verzekeringen BV v. Geologistics Americas, Inc...................
120
Abraham v. T. Henry Constr., Inc........ 1088
Abrams v. City of Mattoon...................... 855
Abramson v. Reiss................................... 597
ABRY Partners V, L.P. v. F & W Acquisition LLC................................. 1137
Absolon v. Dollahite................................ 249
Access Telecom, Inc. v. MCI Telecomms.
Corp.................................................... 1103
Acculog, Inc. v. Peterson......................... 408
Ace Am. Ins. Co. v. Grand Banks Yachts,
Ltd...................................................... 1084
Ackerman v. Kaufman.......................... 1041
Ackerman v. Lerwick.............................. 514
Acuna v. Turkish..................... 517, 520, 671
Adames v. Sheahan......................... 361, 757
Adams Bros. v. Clark.............................. 778
Adams v. Cleveland-Cliffs Iron Co......... 736
Adams v. Copper Beach Townhome Communities, L.P..............................
1070
Adams v. Department of Motor Vehicles................................................ 150
Adams v. King Cnty.............. 704, 729, 1132
Adams v. Mills......................................... 243
Adams v. Murakami................................ 865
Adams v. N. Ill. Gas Co........................... 218
Adams v. N.Y.C. Transit Auth................ 703
Adams v. National Bank of Detroit.......... 42
Adams v. Star Enterprise....................... 744
Adams v. State......................................... 574
Adams v. Sussman & Hertzberg, Ltd.......................................................
1028
Adams v. United States........................... 692
Adams v. Via Christi Reg’l Med. Ctr...... 497, 498, 874
Adams v. Wal-Mart Stores, Inc................. 73
Adams v. Whitman.................................. 985
Adamsky v. Buckeye Local Sch. Dist...... 438
Addy v. Jenkins........................................ 342
Adel v. Parkhurst..................................... 865
Adelphia Commc’ns Corp., In re............ 1145
Adickes v. Kress & Co.............................. 582
Adkins v. Chevron, USA, Inc................... 468
Adkins v. GAF Corp................................. 806
Adkins v. Thomas Solvent Co.................. 743
Admiral Ins. Co. v. Price-Williams............ 48
Advance Music Corp. v. American Tobacco Co..............................................
1111, 1114
Advance Sign Group, LLC v. Optec Displays, Inc.......................................
1098
Advincula v. United Blood Servs............ 496, 507, 529
Advocat, Inc. v. Sauer.............. 538, 541, 544
Aebischer v. Stryker Corp....................... 430
Aegis Ins. Servs., Inc. v. 7 World Trade Co.,
L.P......................................................... 327
Aequitron Med., Inc. v. CBS, Inc........... 1092
Aesoph v. Kusser.................................... 1124
Aetna Building Maintenance Co., Inc. v.
West.................................................... 1204
Aetna Health Inc. v. Davila..................... 536
Afarian v. Massachusetts Elec. Co.......... 390
Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc...................................
496, 1084
AFL Philadelphia LLC v. Krause.......... 1006
Afoa v. Port of Seattle.............................. 466
AG Capital Funding Partners, L.P. v. State St. Bank & Trust
Co..................... 285, 288
Agar v. Orda............................................. 111
Agricultural Ins. v. Constantine............. 120
Aguallo v. City of Scottsbluff................... 387
Aguilar v. Atl. Richfield Co...................... 240
Aguilar v. RP MRP Washington Harbour,
LLC..................................................... 1061
Ahles v. Aztec Enterprises, Inc............... 126
Ahlstrom v. Salt Lake City Corp............. 759
Ahmed v. Pickwick Place Owners’ Ass’n......................................................
474
AIDA v. Time Warner Entm’t Co., L.P.........................................................
953
Aikens v. Debow............................. 373, 1070
Aikens v. Wisconsin............................... 1110
Air Crash at Belle Harbor, N.Y. on Nov. 12, In
re.............................................. 692, 714
Air Wisconsin Airlines Corp. v. Hoeper................................................... 955
1212
Aitken v. Industrial Comm’n.................. 920

Aka v. Jefferson Hosp. Ass’n, Inc............ 670
Ake v. General Motors Corp............ 289, 818
Akin, Gump, Strauss, Hauer & Feld, LLP v. National Dev. & Research
Corp......... 317, 1185
Akins v. Glens Falls City Sch. Dist........ 422
Akins v. ICI Americas Inc..................... 1100
Akutagawa v. Laflin, Pick & Heer, P.A......................................................
1183
Alabama Baptist Hosp. Bd. v. Carter..... 598
Alabama Power Co. v. Moore.................. 391
Alaface v. Nat’l Investment Co....... 244, 432
Alami v. Volkswagen of America, Inc..... 840
Alamo Rent-A-Car, Inc. v. Hamilton...... 362
Alamo Rent-A-Car, Inc. v. Mancusi..... 1026, 1034
Alarid v. Vanier....................................... 259
Alaska State Bank v. Fairco................... 946
Albala v. City of New York...................... 676
Alberino v. Balch..................................... 741
Albert v. Loksen...................................... 981
Alberts v. Schultz.................................... 333
Albrecht v. Zwaanshoek Holding en Financiering, B.V.................................
117
Albright v. Morton................................... 946
Albritton v. Neighborhood Ctrs. Ass’n for Child
Dev............................................. 598
Alcala v. City of Corcoran....................... 575
Alcorn v. Union Pacific R.R. Co.............. 356
Aldana v. School City of E. Chicago...... 305, 307
Alder v. Bayer Corp., AGFA Div.... 314, 326, 356, 629
Alderman’s Inc. v. Shanks...................... 244
Alderson v. Bonner.......................... 705, 706
Alejandre v. Bull................... 803, 1084, 1124
Alessio v. Fire & Ice, Inc......................... 611
Alexander v. Bozeman Motors, Inc........ 707, 921
Alexander v. DeAngelo............................ 175
Alexander v. Federal Bureau of Investigation...................................... 1012
Alexander v. Medical Assocs. Clinic....... 460
Alexander v. Scheid................. 332, 333, 334
Alexander v. Turtur & Assocs., Inc...... 1174
Ali v. City of Boston................................. 481
Ali v. Fisher..................................... 754, 896
Ali v. Playgirl, Inc.................................. 1208
Aliotta v. Nat’l R.R. Passenger Corp..... 448, 450, 451
Allaire v. St. Luke’s Hosp........................ 669
Alldedge v. Good Samaritan Home, Inc.........................................................
697
Allen, In re Estate of.............................. 182
Allen v. Allison...................................... 1168
Allen v. Bos. & M. R.R............................. 225
Allen v. Cox.............................................. 780
Allen v. Dover Co-Recreational Softball League..........................................
421, 426
Allen v. Martin...................................... 1191
Allen v. Muskogee, Oklahoma................ 587
Allen v. National Video, Inc................... 1208
Allen v. Safeway Stores, Inc.................. 1105
Allen v. Steele........................................ 1176
Allen v. Sully-Miller Contracting Co....... 873
Allen v. Uni-First Corp............................ 743
Allen v. Walker.......................................... 71
Alley v. Siepman...................... 233, 258, 284
Allied Maintenance Corp. v. Allied Mechanical Trades, Inc......................
1197
Allied-Signal, Inc. v. Fox......................... 920
Allison v. Cnty. of Ventura...................... 156
Allison v. Fiscus....................... 142, 143, 145
Allison v. Ideal Laundry & Cleaners....... 788
Allison v. Manetta.................................... 297
Allison v. Snelling & Snelling, Inc.......... 696
Allison v. Union Hosp., Inc.................... 1099
Allison v. Vintage Sports Plaques......... 1208
Alloway v. General Marine Indus., L.P.......................................................
1083
Allred v. Harris.......................................... 90
Allright Phoenix Parking, Inc. v. Shabala................................................. 120
Allstate Ins. Co. v. Dooley...................... 1158
Allstate Ins. Co. v. Hamilton Beach/Proctor Silex,
Inc............................................... 811
Allstate Ins. v. Campbell........................... 57
All-Tech Telecom, Inc. v. Amway Corp........................................... 1072,
1126
Allyn v. McDonald.................................. 1172
Alma, Town of v. Azco Constr., Inc....... 1084
Almota Farmers Elevator & Warehouse Co. v. United
States.................................. 1142
Almy v. Grisham...................................... 707
Aloe Coal Co. v. Clark Equip. Co.......... 1085, 1086
Alpert v. Shea Gould Climenko & Casey...................................................
1139
Alpha Funding Group v. Continental Funding, LLC.....................................
1091
Alphin v. Huguley Nursing Center......... 539
Alphonso v. Charity Hosp. of La. at New
Orleans................................................. 854
Alsenz v. Clark County Sch. Dist............ 693
Alston v. Advanced Brands and Importing
Co.......................................................... 361
Alston v. City of Camden......................... 575
Alston v. Hormel Foods Corp................... 436
Alteiri v. Colasso........................................ 80
Altera Corp. v. Clear Logic, Inc............. 1091
Alterra Healthcare Corp. v. Bryant........ 547
Altria Group, Inc. v. Good........................ 845
Aluminum Company of American v. Guthrie.................................................
460
Alvarado v. KOB-TV, LLC..................... 1016
Alyeska Pipeline Serv. Co. v. Aurora Air Serv., Inc............... 1097, 1098,
1101, 1108
Amann v. Faidy........................................ 669
Amarillo, City of v. Martin...................... 575
Amatulli v. Delhi Const. Corp................. 838
Amaya v. Home Ice, Fuel & Supply Co.................................................. 209,
714
1213
Amazing Spaces, Inc. v. Metro Mini Storage...............................................

1201
AmBase Corp. v. Davis Polk & Wardwell.................................. 1164, 1173
Ambling Management Co. v. Miller....... 759
Amchem Prods., Inc. v. Windsor............. 909
Amco Builders & Developers, Inc. v. Team Act Joint
Venture.............................. 1165
Amend v. Bell.......................................... 408
America v. Sunspray Condo. Ass’n......... 312
American Bldg. Supply Corp. v. Petrocelli Group,
Inc.......................................... 1074
American Family Mut. Ins. Co. v. Golke..................................................
1158
American Family Serv. Corp. v. Michelfelder....................................... 1140
American Greetings Corporation v. Dan-Dee Imports,
Inc................................ 1201
American Guarantee & Liab. Ins. Co. v. 1906 Co.......................................
199, 1008
American Home Assurance Co. v. National R.R. Passenger
Corp............................ 767
American Italian Pasta Co. v. New World Pasta
Co............................................. 1200
American Motorcycle Ass’n v. Superior
Court.................................................... 882
American Multi-Cinema, Inc. v. Brown................................................... 469
American Nat’l Fire Ins. Co. v. Schuss..... 58
American Nat’l Watermattress Corp. v.
Manville............................................... 853
American Powerlifting Ass’n v. Cotillo... 426
American Print Works v. Lawrence....... 159
American Rice, Inc. v. Producers Rice Mill, Inc.............................................
1194, 1195
American States Ins. Co. v. Guillermin.................................... 782, 783
American Tobacco Co., Inc. v. Grinnell........................................ 809, 813
American Transmission, Inc. v. Channel 7 of Detroit,
Inc....................................... 177
American Washboard Co. v. Saginaw Mfg.
Co........................................................ 1199
Amish v. Walnut Creek Development,
Inc......................................................... 789
Ammondson v. Northwestern Corp........ 700
Amos, Estate of v. Vanderbilt Univ....... 500, 502, 660, 676
Ampex Corp. v. Cargle............................ 953
Amphitheaters, Inc. v. Portland Meadows............................................... 735
AmSouth Bank, N.A. v. City of Mobile..... 91
Amyot v. Luchini......................... 1127, 1129
Ananda Church of Self Realization v. Massachusetts Bay Ins. Co.................
111
Anaya v. Superior Court......................... 369
Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Corp....................... 1121
Andersen v. Edwards.............................. 857
Andersen v. Two Dot Ranch, Inc.... 214, 779
Andersen v. Whitley............................ 61, 62
Anderson Dev. Co., L.C. v. Tobias........ 1096, 1098, 1100
Anderson v. Am. Family Mut. Ins........... 232
Anderson v. Baptist Med. Ctr.......... 916, 917
Anderson v. Beach................................... 965
Anderson v. Cahill................................... 477
Anderson v. Ceccardi............................... 419
Anderson v. Chrysler Corp...................... 810
Anderson v. City of Springfield............... 483
Anderson v. Claiborne County Recreation Club,
Inc............................................... 475
Anderson v. Continental Ins. Co........... 1147
Anderson v. Creighton............................. 586
Anderson v. Fisher Broad. Cos., Inc...... 1018
Anderson v. Fox Hill Village Homeowners
Corp............................................... 483, 630
Anderson v. Hollingsworth...................... 520
Anderson v. Low Rent Housing Com’n of
Muscatine............................................. 163
Anderson v. Massillon.......................... 59, 60
Anderson v. Minneapolis, St. Paul & Sault Ste. Marie
Ry........................................ 322
Anderson v. Morgan................................. 232
Anderson v. Nashua Corp........................ 217
Anderson v. Nebraska Dep’t of Social Services.........................................
342, 576
Anderson v. Owens-Corning Fiberglas
Corp....................................................... 825
Anderson v. PPCT Management Systems,
Inc......................................................... 635
Anderson v. Serv. Merchandise Co., Inc......................................... 304, 307,
308
Anderson v. St. Francis-St. George Hosp........................................................
62
Anderson v. State..................................... 569
Anderson v. Stream................................. 594
Anderson v. Suiters................................ 1016
Anderson v. W.R. Grace & Co.................. 746
Anderson v. Watson................................. 407
Andres v. Alpha Kappa Lambda Fraternity............................................. 665
Andrews v. Burke.................................... 302
Andrews v. Piedmont Airlines................... 78
Andrews v. Ring........................... 1035, 1036
Andrews v. United States........................ 554
Anello v. Vinci........................................ 1040
Angelini v. OMD Corp............................. 669
Anglado v. Leaf River Forest Products,
Inc......................................................... 743
Angland v. Mountain Creek Resort, Inc......... 240
Angle v. Koppers, Inc............................... 431
Anglin v. Kleeman................................... 294
Anicet v. Gant.................................. 420, 612
Ann M. v. Pacific Plaza Shopping Ctr................................................. 212,
640
Anonymous v. Anonymous.................... 1053
Anselmo v. Tuck............................... 341, 346
Anthony v. Abbott Labs........................... 431
Antisdel v. Ashby..................................... 694
Antoniewicz v. Reszcynski....................... 460
Antwaun A. v. Heritage Mut. Ins. Co.... 491, 492
1214
Anzalone v. Strand................................ 1129

APG, Inc. v. MCI Telecomms. Corp..... 1096, 1104
Apollo Group, Inc. v. Avnet, Inc........... 1083, 1126
Appelgren v. Walsh................................. 140
Applebaum v. Nemon.............................. 621
Aquilera v. Inservices, Inc...................... 919
Arato v. Avedon............................... 519, 520
Arbino v. Johnson & Johnson................. 874
Arbogast v. Mid-Ohio Valley Med. Corp......................................................
509
Arcand v. Evening Call Publ’g Co........... 952
Archambault v. Soneco/Northeastern,
Inc......................................................... 376
Arche v. United States.................... 678, 681
Archer v. Sisters of Mercy Health Sys., St. Louis,
Inc...................................... 598, 599
Arcidi v. Nat’l Ass’n of Gov’t Employees,
Inc....................................................... 1145
Ardinger v. Hummell...................... 236, 402
Arena v. Gingrich.................................... 522
Argoe v. Three Rivers Behavioral Ctr. & Psychiatric
Solutions........................... 713
Argus v. Scheppegrell...................... 394, 528
Arkansas Release Guidance Foundation v.
Needler................................................. 743
Arlowski v. Foglio.................................... 152
Armantrout v. Carlson............................ 689
Armijo v. Miles........................................ 695
Armistead v. Minor................................. 955
Armitage v. Decker.............................. 86, 97
Armoneit v. Elliott Crane Service, Inc.........................................................
774
Armory Park Neighborhood Ass’n v. Episcopal Community Services in
Arizona.......................... 738, 741, 744, 745
Arms v. Halsey........................................ 260
Armstrong v. Best Buy Co...................... 470
Armstrong v. Eagle Rock Entm’t, Inc.......................................................
1006
Armstrong v. Paoli Mem’l Hosp.............. 722
Armstrong v. United States.................... 160
Arnold v. City of Cedar Rapids, Iowa.... 418, 422
Arnold v. Laird........................................ 781
Arnold v. Turek....................................... 694
Aronberg v. Tolbert................................. 403
Aronson v. Harriman.............................. 515
Arpin v. United States.................... 721, 855
Arreola v. Administrative Concepts....... 913
Arthaud v. Mutual of Omaha Ins. Co.... 962, 998
Artilla Cove Resort, Inc. v. Hartley...... 1142
Artis v. Corona Corp. of Japan....... 821, 822
ASC Constr. Equip. USA, Inc. v. City Commercial Real Estate, Inc.............
1106
Asgari v. City of Los Angeles.............. 73, 78
Ash v. Ash.............................................. 1034
Ash v. Continental Ins. Co.................... 1145
Ashcraft v. King....................................... 170
Ashcroft v. al-Kidd................................... 585
Ashe v. Radiation Oncology Assocs........ 515, 516, 521
Ashland Dry Goods Co. v. Wages.............. 75
Ashley County, Arkansas v. Pfizer, Inc.........................................................
745
Ashworth v. Albers Med., Inc................ 1119
Aslakson v. Gallagher Bassett Servs.,
Inc......................................................... 922
Aspen Exploration Corp. v. Sheffield...... 969
Aspiazu v. Mortimer.............................. 1136
Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., City
of......................... 1125
Atchinson v. District of Columbia........... 588
Atchison, T. & S. F. R. Co. v. Stanford.... 356
Atherton v. Devine................................... 369
Atienza v. Taub........................................ 180
Atkins v. Swimwest Family Fitness Ctr.........................................................
411
Atkinson v. Bernard, Inc................... 94, 734
Atlanta Coca-Cola Bottling Co. v. Ergle......................................................
305
Atlanta Enters. v. James......................... 286
Atlanta Int’l Ins. Co. v. Bell................... 1167
Atlanta Transit Sys., Inc. v. Nowell........ 853
Atlanta, City of v. Chambers................... 566
Atlanta, City of v. Kleber......................... 737
Atlantic Coast Airlines v. Cook............... 722
Atlantic Mut. Ins. Co. v. Kenney............. 367
Atlas Chemical Industries, Inc. v. Anderson...............................................
789
Attorney Grievance Comm’n of Md. v. James..................................................
1051
Auckenthaler v. Grundmeyer.................. 426
Auer v. Paliath......................................... 757
Augsburger v. Homestead Mut. Ins. Co..........................................................
781
August Storck K.G. v. Nabisco, Inc....... 1194
Ault v. International Harvester Co......... 823
Auman v. School Dist. of Stanley-Boyd................................ 481, 483
Austermiller v. Dosick............................. 365
Austin v. City of Buffalo.......................... 613
Austin v. Inet Techs., Inc......................... 943
Austin v. Kaness...................................... 757
Austin v. Litvak....................................... 430
Australian Gold, Inc. v. Hatfield.......... 1096, 1104
Auvil v. CBS 60 Minutes............. 1113, 1115
Avanta Fed. Credit Union v. Shupak.... 1123
Aversa v. United States........................... 969
Averyt v. Wal-Mart Stores, Inc......... 36, 856
Aviation Cadet Museum v. Hammer..... 734, 741, 747
Avila v. Citrus Cmty. Coll. Dist...... 166, 423, 424
Avildsen v. Prystay................................ 1026
Avilla v. Newport Grand Jai Alai LLC........................................... 1095,
1108
Ayala v. B & B Realty Co......................... 489
Ayala v. Washington................................ 994
Ayash v. Dana-Farber Cancer Inst......... 999
Aycock v. Wilmington & W. R. Co........... 217
1215
Ayers v. Jackson Twp...................... 441, 854

Ayres v. French........................................ 111
Ayuluk v. Red Oaks Assisted Living, Inc................................................. 172,
539
Azzolino v. Dingfelder............................. 679
B. Sanfield, Inc. v. Finlay Fine Jewelry
Corp.................................................... 1201
B.D.G.S., Inc. v. Balio............................ 1155
B.D.H. ex rel. S.K.L. v. Mickelson.......... 677
Babb v. Lee Cnty. Landfill SC, LLC... 89, 92
Babcock v. Mason County Fire Dist. No. 6.....................................................
571
Babes Showclub, Jaba, Inc. v. Lair......... 607
Baby Boy Doe, Interest of v. Doe.............. 62
Bachtel v. Miller County Nursing Home
Dist....................................................... 546
Backiel v. Citibank, N.A.......................... 468
Backlund v. Univ. of Washington........... 513
Badahman v. Catering St. Louis............ 356
Bader v. Johnson..................................... 677
Badger Pharmacal, Inc. v. Colgate-Palmolive Co......................................
1123
Bae v. Dragoo & Assoc., Inc.................... 474
Baer v. Slater........................................... 117
Baez, In re.............................................. 1154
Bagent v. Blessing Care Corp................. 758
Baggett v. Industrial Comm’n................ 916
Bagley v. Mazda Motor Corp.......... 821, 822
Bagley v. Mt. Bachelor, Inc..................... 413
Baglini v. Lauletta....................... 1025, 1046
Bagnana v. Wolfinger.............................. 465
Bahr v. Harper-Grace Hosps.................. 509
Bahrle v. Exxon Corp.............................. 767
Bailey v. Algonquin Gas Transmission
Co........................................................ 1165
Bailey v. Bayer Cropscience.................... 731
Bailey v. C.S.............................................. 58
Bailey v. Edward Hines Lumber Co....... 631
Bailey v. Faulkner................................. 1052
Bailey v. Lewis Farm, Inc....................... 353
Bailey v. Rose Care Ctr. Div. of C.A.R.E., Inc.................................................
538, 541
Bailey v. Searles-Bailey................ 728, 1052
Bajwa v. Metropolitan Life Ins. Co......... 637
Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay.....................
1166
Baker v. Burbank-Glendale-Pasadena Airport
Authority................................... 99
Baker v. Fabian, Thielen & Thielen..... 1171
Baker v. Howard County Hunt............... 778
Baker v. Joyal.......................................... 224
Baker v. McCollan........................... 156, 583
Baker v. Morrison.................................... 405
Baker v. Parsons..................................... 984
Baker v. Saint Francis Hosp.................. 757, 758, 762
Baker v. Superior Court (Leach)............. 611
Baker v. Tremco Inc................................ 962
Baker, State ex rel. v. Coast to Coast Manpower, LLC...................................
915
Bakerman v. The Bombay Co................. 921
Balas v. Huntington Ingalls Industries, Inc.....................................................
63, 67
Balboa Island Vill. Inn, Inc. v. Lemen................................................. 1003
Baldonado v. El Paso Natural Gas Co.... 610
Baldwin v. Mosley.................................... 478
Baliva v. State Farm Mut. Auto. Ins. Co..........................................................
706
Ball v. Birch, Horton, Bittner and Cherot.................................................
1171
Ball v. Nye................................................ 785
Ballalatak v. All Iowa Agric. Ass’n........ 1148
Ballard Group, Inc. v. BP Lubricants USA,
Inc....................................................... 1091
Ballard Shipping Co. v. Beach Shellfish.............................................. 1076
Ballard v. Uribe........................................ 267
Ballard v. Ypsilanti Tp............................ 483
Ball-Foster Glass Container Co. v. Giovanelli..............................................
914
Ballinger v. Thompson........................... 1190
Ballou v. Sigma Nu Gen. Fraternity....... 232
Baltimore & O.R. Co. v. Goodman............ 10
Baltimore Gas & Elec. Co. v. Flippo........ 459
Baltimore Gas & Elec. Co. v. Lane.......... 368
Baltimore Orioles, Inc. v. Major League Baseball Players
Ass’n....................... 1209
Bamberger & Feibleman v. Indianapolis Power & Light
Co............................... 1067
Bamford v. Turnley.................................. 277
Bammerlin v. Navistar Intern. Transp.
Corp....................................................... 844
Banaghan v. Bay State Elevator Co........ 629
Bangert Bros. Constr. Co. v. Kiewit W. Co..............................................
1120, 1131
Bangert v. Shaffner.................................. 425
Bangs v. Schroth.................................... 1166
Bank of California, N.A. v. First American Title Ins.
Co........................................ 1074
Bank of Eureka Springs v. Evans......... 1027
Bank of New York v. Sheff.................... 1181
Banker v. McLaughlin..................... 476, 477
Bankhead v. ArvinMeritor, Inc....... 866, 869
Banknorth, N.A. v. BJ’s Wholesale Club, Inc.............................................
1066, 1081
Banks v. Beckwith........... 292, 297, 300, 307
Banks v. Fritsch....................................... 706
Banks v. ICI Americas, Inc...................... 821
Banks v. Montogomery Ward & Co., Inc.......................................................
1031
Banks v. Sunrise Hosp................... 856, 1157
Banks, In re............................................ 1167
Bankston v. Pass Road Tire Ctr., Inc.......................................................
1027
Baptist Health v. Murphy..................... 1097
Baptist Memorial Hosp. System v. Sampson...............................................
771
Barber v. LaFromboise.............................. 40
Barber v. Time, Inc...................... 1011, 1015
Barbera v. Brod-Dugan Co...................... 769
Barbie v. Minko Constr., Inc................... 294
Barbina v. Curry...................................... 571
1216
Barcai v. Betwee...................................... 517

Barclay v. Briscoe.................................... 758
Bardis v. Oates...................................... 1145
Barger v. McCoy Hillard & Parks......... 1117
Barillari v. City of Milwaukee................ 574
Barker v. Kallash.................................... 402
Barker v. Lull Engineering Co............... 815, 822, 824
Barkley v. Corrections Div...................... 915
Barnaby v. A. & C. Properties................ 244
Barnes v. Koppers................................... 430
Barnes v. Martin............................. 150, 151
Barnes v. Paulin...................................... 407
Barnes v. Turner................................... 1180
Barnes v. United States.......................... 267
Barnett v. Clark...................... 757, 761, 762
Barnett v. Mobile County Personnel Bd.........................................................
992
Barnette v. Wilson................................... 942
Barnhart v. Paisano Publ’ns, LLC........ 1006
Barnish v. KWI Building Co........... 810, 811
Barquis v. Merchants Collection Ass’n of Oakland....................................
1044, 1045
Barreca v. Nickolas.......... 968, 973, 982, 983
Barret, Doering ex rel. v. Copper Mountain,
Inc......................................................... 596
Barrett v. Danbury Hosp........................ 726
Barrett v. Lucky Seven Saloon, Inc........ 251
Barrett v. Montesano.............................. 430
Barrett v. Mt. Brighton, Inc.................... 423
Barrett v. Rosenthal........................ 971, 972
Barrie v. V.P. Exterminators, Inc........ 1076, 1124
Barrio v. San Manuel Div. Hosp. For Magma Copper Co...............................
437
Barris v. County of Los Angeles............. 532
Barry v. Quality Steel Products, Inc..... 376, 377
Bartell v. State........................................ 176
Barth v. Coleman.................................... 896
Bartnicki v. Vopper............................... 1015
Barton v. Adams Rental, Inc................... 815
Barton v. City of Bristol........................ 1123
BASF Corp. v. Symington....................... 432
Basham v. Hunt...................................... 381
Baska v. Scherzer.................... 59, 65, 79, 81
Bass v. Stryker Corp............................... 847
Bass, In re.............................................. 1204
Basso v. Miller......................................... 478
Bateman v. Mello.................................... 477
Bates v. Southgate....................... 1136, 1137
Battaglieri v. Mackinac Ctr. for Pub. Policy..................................................
1007
Battalla v. State.............................. 721, 722
Battle v. Thornton................................. 1170
Baudanza v. Comcast of Mass. I, Inc...... 386
Bauer v. State.................................. 579, 969
Baugh v. CBS, Inc..................................... 87
Bauldock v. Davco Food, Inc................... 759
Baum v. Burrington................................ 671
Baum v. United States............................ 557
Bauman ex rel. Chapman v. Crawford....................................... 233, 258
Baumeister v. Plunkett............................ 761
Baxter v. Noce.......................................... 394
Bayer CropScience LP v. Schafer........... 875, 1060
Bayer v. Crested Butte Mountain Resort,
Inc......................................................... 450
BDO Seidman, LLP v. Mindis Acquisition
Corp..................................................... 1140
BE&K Const. Co. v. NLRB.................... 1047
Beach v. Lipham...................................... 505
Beach v. University of Utah.................... 648
Beacon Residential Cmty. Ass’n v. Skidmore, Owings & Merrill LLP.......
204
Beal Bank, SSB v. Arter & Haddon, LLP.....................................................
1181
Beal v. City of Seattle.............................. 626
Bean v. Gutierrez................................... 1019
Bearbower v. Merry............................... 1050
Beard v. Flying J, Inc................................. 83
Beard v. Johnson and Johnson, Inc........ 817
Beardsley v. Wierdsma............................ 682
Beatty v. Central Iowa Ry. Co................. 269
Beaudrie v. Henderson............................ 572
Beauharnais v. Illinois............................. 953
Beaulieu v. Elliott.................................... 859
Beaux v. Jacob........................................ 1126
Beaver v. Grand Prix Karting Ass’n, Inc.........................................................
720
Beaver v. Howard Miller Clock Co.......... 818
Beavers v. West Penn Power Co.............. 101
Bebo Const. Co. v. Mattox & O’Brien, P.C.......................................................
1170
Bechtel v. Liberty Nat’l Bank................ 1140
Beck v. Dobrowski.................................... 200
Beck v. Law Offices of Edwin J. (Ted) Terry, Jr.,
P.C................................................ 1164
Beck v. State............................................ 716
Beck v. Wecht......................................... 1175
Beck v. Woodward Affiliates.................... 767
Beckles v. Madden................................... 512
Beddingfield v. Linam.............................. 787
Bedor v. Johnson...................................... 220
Beecher v. Dull......................................... 748
Beecher, LLC v. Unizan Bank, Nat’l Ass’n....................................................
1083
Beggs v. State, Dep’t of Soc. & Health
Servs..................................................... 247
Behr v. Richmond................................... 1118
Behrendt v. Gulf Underwriters Ins........ 212, 265
Behrens v. Raleigh Hills Hosp., Inc........ 694
Belcher v. Wal-Mart Stores, Inc..... 938, 955, 972
Belhumeur v. Zilm................... 624, 629, 734
Belk v. Cheshire..................................... 1186
Bell v. Chisom.......................................... 568
Bell v. Hutsell.......................................... 665
Bell v. Industrial Vangas, Inc.................. 921
1217
Bell v. Michigan Council 25 of Am. Fed’n of State, County & Mun.
Employees, AFL-CIO, Local 1023................................. 1073
Bell v. National Republican Cong. Comm...................................................
945
Bell v. Simmons....................................... 959
Bell, Bell ex rel. v. Dawson..................... 621
Bella v. Aurora Air, Inc........................... 785
Bellah v. Greenson.................................. 501
Bellino v. McGrath North Mullin & Kratz, PC
LLO.............................................. 1174
Bellville v. Farm Bureau Mut. Ins. Co........................................................
1147
Below v. Norton..................................... 1082
Bemis v. Estate of Bemis........................ 128
Bendix Corp. v. Adams.......................... 1104
Bendix Corp. v. Stagg.............................. 847
Benefield v. Pep Boys-Manny, Moe & Jack,
Inc......................................................... 604
Benesh v. New Era, Inc........................... 768
Benham v. King............................... 305, 468
Benik v. Hatcher..................................... 492
Beninati v. Black Rock City, LLC........... 416
Benjamin v. Wal-Mart Stores, Inc.......... 829
Bennett v. Butlin..................................... 511
Bennett v. Dunn...................................... 136
Bennett v. Gordon................................... 688
Bennett v. Hill-Boren, P.C.................... 1181
Bennett v. Ohio Dep’t of Rehab. & Correction....................................... 77,
163
Bennett v. Stanley................................... 475
Bennett v. State....................................... 225
Bennett v. Trevecca Nazarene Univ...... 603, 604
Bennett v. United States......................... 563
Bennett, In re Estate of........................... 694
Benson v. Kutsch............................. 570, 571
Bentley v. Bunton.................................... 954
Berberian v. Lynn............................ 226, 420
Berdyck v. Shinde.................................... 496
Berenger v. Frink.................................... 688
Berg v. Reaction Motors Division........... 787
Berg v. Wiley................................... 148, 152
Berger v. Temple Beth-El of Great Neck......................................................
976
Bergman v. Hupy.................................... 974
Bergstreser v. Mitchell............................ 676
Bergstrom v. Noah...................... 1169, 1171
Berkovitz by Berkovitz v. United States........................................... 554, 555
Berlangieri v. Running Elk Corp............ 413
Berliner v. Clukay................................. 1103
Berman v. Rubin................................... 1178
Bernard v. Char....................................... 521
Bernethy v. Walt Failor’s Inc.................. 653
Bernier v. Boston Edison Co................... 272
Berrios v. United Parcel Serv................. 413
Berry v. Sugar Notch Borough................ 354
Berry v. Watchtower Bible and Tract Soc’y of New
York.................................. 455, 456
Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No.
1.................................. 1079
Berte v. Bode............................ 316, 317, 338
Bertelmann v. Taas Associates............... 663
Berten v. Pierce........................................ 314
Bertero v. National General Corp......... 1036
Bertrand v. Mullin................................... 995
Besette v. Enderlin Sch. Dist. No. 22...... 283
Beshears v. United Sch. Dist. No. 305.... 647
Best v. Malec.......................................... 1009
Best v. Taylor Mach. Works............ 433, 875
Betaco, Inc. v. Cessna Aircraft Co......... 1128
Bethlehem Steel Corp. v. Ernst & Whinney..............................................
1135
Bethlehem Steel Corp., United States v............................................... 1149
Betsinger v. D.R. Horton, Inc.................. 700
Bettel v. Yim.............................................. 79
Betterton v. Leichtling..................... 515, 517
Bettinger v. Field Container Co.............. 943
Beupre v. Pierce County.......................... 608
Beuster v. Equifax Info. Servs................. 964
Bevan v. Fix..................................... 709, 712
Bexiga v. Havir Mfg. Corp....... 375, 393, 837
Bey v. Sacks............................................. 523
Beyer v. Todd........................................... 220
Bhatia v. Mehak, Inc............................... 600
Bhinder v. Sun Co.................................... 896
Biakanja v. Irving.................................... 209
Bible Baptist Church v. City of Cleburne............................................... 734
BIC Pen Corp. v. Carter.................. 805, 846
Bicknese v. Sutula................................. 1119
Biddle v. Sartori Memorial Hospital....... 530
Bidiman v. Gehrts.................................... 467
Bidna v. Rosen............................. 1037, 1047
Biercyznski v. Rogers............................... 881
Bigbee v. Pac. Tel. & Tel. Co........... 265, 367
Billups v. Scott....................................... 1179
Bily v. Arthur Young & Co.......... 1134, 1135
Binder v. General Motors Acceptance
Corp....................................................... 151
Bing v. Thunig.......................................... 529
Biomet v. Finnegan Henderson LLP.... 1170, 1171
Biondi v. Nassimos........................... 959, 960
Biosera, Inc. v. Forma Scientific, Inc...... 812
Biosynexus, Inc. v. Glaxo Group Ltd..... 1145
Bird v. Holbrook....................................... 144
Bird v. Hudson......................................... 954
Bird v. Saenz............................................ 718
Bird v. W.C.W........................................ 1057
Bird, Marella, Boxer & Wolpert v. Superior
Court................................................... 1189
Birkner v. Salt Lake Cty......................... 226
Birmingham Coal & Coke Co. v. Johnson................................................. 787
Birnbaum v. United States...................... 562
Bishop Processing Co. v. Davis................ 747
Bishop v. Poore......................................... 853
Bishop v. TES Realty Trust..................... 489
Bismarck Hotel Co. v. Sutherland........ 1040
Bisno v. Douglas Emmett Realty Fund 1988...........................................
1038
1218
Bissell v. Town of Amherst..................... 855

Bisso v. Inland Waterways Corp............ 120
Bitar v. Rahman...................................... 504
Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics.......... 248,
582, 969
BJ’s Wholesale Club, Inc. v. Rosen......... 414
Bjerke v. Johnson.................................... 172
Bjorgen v. Kinsey.......................... 437, 1181
Bjorndal v. Weitman............................... 221
Black & Yates v. Mahogany Ass’n........ 1113
Black v. Comer........................................ 854
Black v. Kroger Co..................................... 76
Black v. Power......................................... 437
Blackford v. Prairie Meadows Racetrack and Casino,
Inc.................................... 111
Blackstock v. Kohn................................ 1177
Blackstone v. Cashman......................... 1095
Blackwell v. Wyeth.................................. 674
Bladen v. First Presbyterian Church of
Sallisaw................................................ 180
Blahd v. Richard B. Smith, Inc............ 1065, 1087
Blain v. Doctor’s Company.................... 1178
Blair v. Campbell............................. 214, 604
Blair v. McDonagh................................. 1144
Blair v. Ohio Dep’t of Rehab. & Corr..... 465, 466
Blair v. West Town Mall......................... 469
Blakeley v. Shortal’s Estate............ 688, 711
Blakely v. Austin-Weston Ctr. for Cosmetic Surgery
LLC.......................................... 59
Blakes v. Blakes...................................... 229
Blanchard v. Kellum............................... 515
Blankenship v. Cincinnati Milacron Chems., Inc..........................................
922
Blankenship v. Staton........................... 1041
Blanks v. Seyfarth Shaw.... 1170, 1171, 1185
Blatty v. New York Times Co..... 1092, 1115
Blazevska v. Raytheon Aircraft Co......... 434
Bleck v. Power....................................... 1181
Block v. Neal............................................ 562
Blodgett v. University Club............ 938, 982
Blomberg v. Cox Enters., Inc.................. 950
Blonski v. Metropolitan Dist. Com’n...... 483
Bloom v. Hennepin County................... 1151
Bloom v. Hensel........................... 1166, 1167
Bloskas v. Murray................................... 514
Blount v. Bordens, Inc............................. 296
Bloxom v. Bloxom.................................... 829
Blue Fox Bar, Inc. v. City of Yankton..... 566
Blue v. Environmental Engineering, Inc.........................................................
820
Blueflame Gas, Inc. v. Van Hoose........... 217
Blum v. Airport Terminal Servs., Inc..... 856
Blumenthal v. Drudge............................. 972
Blunt v. Medtronic, Inc................... 719, 720
Bly v. Tri-Continental Indus., Inc.......... 330
BMK Corp. v. Clayton Corp........ 1091, 1105
BMW of N. Am. v. Gore................... 868, 871
Board of Comm’rs v. Nevitt..................... 721
Board of County Com’rs of Cecil County v.
Dorman................................................ 487
Board of Educ. of Farmingdale Union Free Sch. Dist. v. Farmingdale
Classroom Teachers Ass’n, Inc., Local 1899....... 1043, 1045
Board of Regents of the University System of Georgia v.
Riddle.............................. 576
Board of Supervisors for Louisiana State University Agricultural and
Mechanical College v. Smack Apparel Co............. 1194
Board of Trs. of Cmty. Coll. Dist. No. 508, County of Cook v. Coopers &
Lybrand.............................................. 1132
Bob Allyn Masonry v. Murphy................ 914
Bobb v. Bosworth..................................... 150
Bochetto v. Gibson................................... 966
Bodah v. Lakeville Motor Express, Inc.......................................................
1014
Bode v. Clark Equipment Co........... 889, 890
Bodell Constr. Co. v. Ohio Pac. Tech, Inc............................................ 1090,
1098
Bodenheimer v. Confederate Mem’l Ass’n......................................................
597
Bodiford v. Lubitz.................................... 511
Boeken v. Philip Morris USA, Inc........... 720
Boerner v. Brown & Williamson Tobacco
Corp....................................................... 821
Bogan v. Scott-Harris...................... 578, 585
Bohrer v. DeHart..................................... 899
Boies v. Cole............................................. 693
Boisdore v. International City Bank & Trust
Co................................................ 116
Boiter v. South Carolina Dep’t of Transp...................................................
873
Bokum v. Elkins..................................... 1038
Boland v. Stanley................................... 1050
Bolduc v. Bailey........................................ 999
Boles v. Sun Ergoline, Inc........................ 801
Bolick v. Sunbird Airlines........................ 219
Bolin v. Wingert....................................... 670
Bollin v. Elevator Const. & Repair Co.... 629
Boltax v. Joy Day Camp.......................... 373
Bonbrest v. Kotz....................................... 669
Bond v. Lincoln Elec. Co.......................... 828
BondPro Corp. v. Siemens Power Generation, Inc......................... 1204,
1205
Bondu v. Gurvich................................... 1160
Bondy v. Allen.......................................... 450
Bonhomme v. St. James........................ 1119
Bonilla v. University of Mont.................. 307
Bonin v. Vannaman................................. 594
Bonito Boats, Inc. v. Thunder Craft Boats, Inc................................... 1193,
1202, 1203
Bonome v. Kaysen.................................. 1013
Bonpua v. Fagan...................................... 400
Bonte v. Bonte.......................................... 675
Booker, Inc. v. Morrill................................ 59
Boomer v. Atlantic Cement Co........ 735, 747
Boomer v. Frank...................................... 383
Boone v. Boone......................................... 592
Boone v. William W. Backus Hosp.......... 333
Boorman v. Nev. Mem’l Cremation Soc’y...................................... 112, 704,
729
1219
Booth v. Quality Carriers, Inc................ 447

Booth v. Santa Barbara Biplanes, LLC.......................................................
411
Borcherding v. Anderson Remodeling Co.,
Inc....................................................... 1121
Boren v. Weeks........................................ 770
Boren v. Worthen Nat’l Bank of Arkansas...................................... 466, 640
Borish v. Russell.................................... 1126
Borland v. Sanders Lead Co............. 92, 736
Borley Storage & Transfer Co. v. Whitted......................................... 403,
404
Boros v. Baxley...................................... 1183
Boroughs v. Joiner................................... 767
Borrelli, People v....................................... 73
Bortz v. Noon......................................... 1128
Boryla v. Pash.......................................... 856
Bosley v. Wildwett.com......................... 1006
Bostick v. Flex Equip. Co........................ 903
Boswell v. Phoenix Newspapers, Inc.... 1004
Botelho v. Caster’s, Inc............ 292, 293, 382
Boulter v. Eli & Bessie Cohen Found..... 609
Bourgonje v. Machev....................... 625, 627
Bourne v. Mary Gilman, Inc................... 820
Bouse v. Fireman’s Fund Ins. Co............ 918
Boutwell v. Domino’s Pizza..................... 917
Bovee v. Gravel...................................... 1167
Bovsun v. Sanperi............................ 714, 715
Bowan, Bowan ex rel. v. Express Med. Transporters,
Inc................................. 286
Bowden v. Caldor.................................... 866
Bowden v. Young..................................... 922
Bowen v. City of New York..................... 438
Bowen v. Independent Publ’g Co............ 947
Bowen v. Lumbermens Mut. Cas. Co.... 716, 718, 723
Bower v. Harrah’s Laughlin, Inc............ 363
Bower v. Westinghouse Elec. Corp......... 854
Bowers v. Westvaco Corp........................ 734
Bowie v. Murphy....................................... 70
Bowler v. Joyner...................................... 114
Bowling v. City of Oxford........................ 789
Bowling v. Foster..................................... 514
Bowling v. Heil Co................................... 836
Bowl-Mor Co., Inc. v. Brunswick Corp.................................................... 1097
Bowman v. Doherty............................... 1189
Bowman v. Presley................................ 1137
Bowman v. United States....................... 569
Bowyer v. Loftus...................................... 758
Boyanton v. Reif...................................... 505
Boycher v. Livingston Parish School Board....................................................
478
Boyd v. Albert Einstein Medical Center................................................... 534
Boyd v. Goffoli......................................... 870
Boyd v. Moore.......................................... 216
Boyd v. Nat’l R.R. Passenger Corp......... 242
Boyd v. Racine Currency Exchange, Inc.........................................................
643
Boyd v. Travelers Ins. Co............ 1159, 1160
Boyer v. Anchor Disposal........................ 612
Boyer v. Iowa High Sch. Athletic Ass’n......................................................
422
Boyer v. Johnson...................................... 234
Boyer v. Waples................................ 132, 135
Boyle v. Revici.................................. 410, 420
Boyle v. United Technologies Corp......... 580
Boyle v. Welsh.............................. 1169, 1172
Boyrie v. E & G Property Services.......... 460
Brabant v. Republic Servs., Inc....... 593, 594
Brabazon v. Joannes Bros....................... 101
Brackett v. Focus Hope, Inc..................... 913
Brackett v. Peters.................................... 732
Braden v. Workman................................. 286
Bradford v. Feeback................................. 474
Bradford v. Universal Const. Co..... 365, 485
Bradley v. American Smelting & Refining
Co.................................................... 56, 736
Bradley v. Armstrong Rubber Co............ 742
Bradley v. Atlantic City Bd. of Educ..... 1010
Bradley v. Hunter.................................... 135
Bradley v. Sanchez....................... 1155, 1156
Bradley v. United States......................... 560
Bradley v. Welch...................................... 475
Bradshaw v. Daniel.......................... 366, 501
Bradshaw v. Joseph....................... 578, 1191
Bradshaw v. State Farm Mut. Auto. Ins............................................. 1038,
1039
Bradt v. White........................................ 1179
Bradway v. American Nat’l Red Cross.... 434
Brady v. Louis Ruffolo & Sons Constr.
Co.......................................................... 915
Brady v. Maryland................................... 583
Brady, People v................................ 352, 354
Bragg v. Genesee County Agr. Soc.......... 482
Bramble v. Thompson.............................. 147
Bramlette v. Charter-Medical-Columbia....................................... 227, 394
Brammer v. Dotson.................................. 727
Branch v. Western Petroleum, Inc.......... 789
Brandenburg v. Briarwood Forestry Services.................................................
767
Brandert v. Scottsbluff Nat’l Bank & Trust
Co.......................................................... 470
Brandon v. Cnty. of Richardson..... 382, 390, 692, 708, 892
Brandon v. Gazette Pub. Co............ 977, 979
Brandt v. Cnty. of Pennington.................. 98
Branham v. Ford Motor Co...................... 295
Branham v. Loews Orpheum Cinemas,
Inc......................................................... 295
Branks v. Kern......................................... 466
Branson v. Donaldson............................ 1029
Braswell v. Braswell................................ 571
Braswell v. Cincinnati Inc....................... 820
Braswell, Estate of v. People’s Credit Union..................................................
1131
Bratton v. Bond........................................ 506
Bratton v. McDonough............................. 709
Brauer v. Globe Newspaper Co...... 940, 945, 947
Braun v. Armour & Co............................. 951
Bravman v. Baxter Healthcare Corp...... 816
1220
Bravo v. United States............................ 855

Brawner v. Richardson............................ 383
Bray v. Providence Journal Co............... 977
Bray v. St. John Health System, Inc...... 639
Breger v. City of New York..................... 486
Brehany v. Nordstrom, Inc..................... 981
Brehm v. Eisner..................................... 1145
Breiggar Properties, L.C. v. H.E. Davis & Sons,
Inc................................................. 98
Brent v. Mathias.................................... 1052
Brett v. Great Am. Recreations, Inc....... 423
Breunig v. American Family Ins............ 225
Brewer v. Furtwangler............................ 147
Brewer v. Hagemann.................. 1187, 1191
Brewer v. J.B. Hunt Transp. Inc............ 895
Brewer v. State................................ 158, 160
Brewster v. Colgate-Palmolive Co......... 603, 605
Brewster v. Rush-Presbyterian-St. Luke’s Medical
Center..................................... 635
Brewster v. United States....... 293, 297, 309
Brewster, United States v....................... 581
Briarcliff Nursing Home, Inc. v. Turcotte................................................ 694
Bridge v. Park Nat’l Bank..................... 1099
Bridges v. Park Place Entertainment.... 663
Bridgestone/Firestone North America Tire, LLC v.
Naranjo.................................... 881
Bridgestone/Firestone, Inc. v. Glyn-Jones........................................... 408
Bridport, Town of v. Sterling Clark Lurton Corp......................................
828, 829, 833
Briesemeister v. Lehner........................ 1095
Brigance v. Velvet Dove Rest., Inc......... 280, 662
Briggs v. Morgan..................................... 287
Bright v. Cargill, Inc............................... 774
Brimelow v. Casson..................... 1094, 1095
Brisbon v. Mount Sinai Hosp.................. 308
Briscoe v. LaHue......................... 1024, 1025
Bristol, City of v. Tilcon Minerals, Inc.... 88, 91, 99
Bristow v. Flurry..................................... 293
Britt Builders, Inc. v. Brister.................... 97
Britton v. Soltes....................................... 502
Britton v. Wooten............................ 363, 364
Broadbent v. Broadbent.................. 594, 595
Broadley v. State....................................... 70
Broadmoor Apartments of Charleston v. Horwitz.....................................
1044, 1045
Broadnax v. Gonzalez.............................. 730
Broadwell v. Holmes............................... 594
Brochu v. Ortho Pharmaceutical Corp.............................................. 806, 828
Brock v. Peabody Coop. Equity Exch..... 382, 383
Brock v. Thompson.......................... 944, 953
Brock v. United States............................ 563
Brock v. Watts Realty Co., Inc........ 244, 644
Brodeur v. Hayes................................... 1172
Brodie v. Summit County Children Services
Board.................................................... 570
Brogan v. Mitchell Int’l, Inc................... 1139
Brogdon v. National Healthcare Corp..... 546
Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist........................................
216, 267, 862
Bronsen v. Dawes County................ 479, 483
Brookhaven Steam Laundry v. Watts..... 915
Brooks v. Beech Aircraft Corp................. 801
Brooks v. Lewin Realty III, Inc................. 36
Brooks v. United States................... 559, 560
Brooks v. Zebre....................................... 1176
Brotherton v. Day & Night Fuel Co........ 259
Brown Eyes v. South Dakota Dep’t of Social
Services................................................. 580
Brown Transport Corp. v. James............ 438
Brown v. Blaine........................................ 970
Brown v. Brown........................................ 592
Brown v. Buffalo & State Line R.R......... 250
Brown v. Campbell................................... 125
Brown v. Collins....................................... 785
Brown v. Commonwealth of Pennsylvania, Dep’t of Health Emergency
Medical Services Training Institute.................. 649
Brown v. Crown Equipment Corp........... 821
Brown v. Dellinger....................... 85, 87, 101
Brown v. Denny...................................... 1056
Brown v. Dibbell............................... 393, 523
Brown v. Dillard’s, Inc............................. 759
Brown v. Diversified Hospitality Group,
Inc........................................................... 56
Brown v. Ellis......................................... 1051
Brown v. Florida Chautauqua Ass’n....... 745
Brown v. Gatti.......................................... 944
Brown v. Glaxo, Inc.................................. 828
Brown v. Hurley..................................... 1049
Brown v. Kelly........................................ 1173
Brown v. Kendall....................... 29, 194, 777
Brown v. Martinez..................................... 80
Brown v. Mayor........................................ 762
Brown v. Merlo................................... 47, 241
Brown v. North Carolina Wesleyan College..................................................
648
Brown v. Oklahoma State Bank & Trust Co. of
Vinita.............................................. 1153
Brown v. Patel........................................ 1147
Brown v. Patterson.................................. 183
Brown v. Pine Bluff Nursing Home........ 697
Brown v. Poway Unified Sch. Dist......... 300, 308
Brown v. Quik Trip Corp......................... 917
Brown v. Racquet Club of Bricktown...... 308
Brown v. Robishaw.................................... 59
Brown v. Shyne................................ 253, 494
Brown v. Soh............................................ 414
Brown v. Spokane Cty. Fire Prot. Dist. No.
1...................................................... 220
Brown v. Superior Court.................. 330, 823
Brown v. Theos............................. 1187, 1188
Brown v. United States............................ 560
Brown v. United States Stove Co............ 839
Brown, United States v.................... 559, 560
Brownelli v. McCaughtry......................... 621
1221
Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal,

Inc......................................... 867
Bruce v. Byrne-Stevens & Associates Engineers, Inc. 113 Wash. 2d 123......
1024
Brucker v. Mercola.................................. 674
Bruesewitz v. Wyeth LLC............... 845, 929
Brugh v. Peterson.................................... 296
Brune v. Belinkoff........................... 508, 509
Brunell v. Wildwood Crest Police Dep’t..................................................... 918
Bruns v. City of Centralia....................... 471
Brunson v. Affinity Federal Credit Union............................... 1028, 1029,
1037
Brunswick, Town of v. Hyatt.......... 566, 567
BRW, Inc. v. Dufficy & Sons, Inc......... 1074, 1081, 1126
Bryan v. Burt........................................... 506
Bryan v. Sherick...................................... 505
Bryant County, Board of County Comn’rs of v. Brown...............................
586, 587, 588
Bryant v. Calantone................................ 403
Bryant v. HCA Health Servs. of No. Tennessee, Inc......................................
514
Bryant v. Hoffmann-La Roche, Inc......... 815
Bryant, Madison ex rel. v. Babcock Center, Inc.................................. 384,
570, 633, 770
Bryson v. News Am. Publ’ns, Inc.... 949, 963
Bubb v. Brusky........................................ 518
Buchanan v. Doe.......................................... 3
Buchanan v. Leonard.............................. 967
Buckeye Check Cashing, Inc. v. Cardegna............................................ 1137
Buckley v. Bell......................................... 374
Buckman Co. v. Plaintiffs’ Legal Committee.................................... 442, 845
Buczkowski v. McKay..................... 284, 287
Budgetel Inns, Inc. v. Micros Sys., Inc.......................................................
1082
Buel v. ASSE Int’l, Inc............................ 396
Bufalino v. Associated Press................... 977
Buffets, Inc. v. Klinke........................... 1204
Bufkin v. Felipe’s Louisiana, LLC.......... 473
Bullard v. Barnes.................................... 690
Buono v. Scalia........................................ 595
Burbage v. Burbage............................... 1000
Burbank Grease Servs., LLC v. Sokolowski...................... 1106, 1145, 1205
Burch v. Nedpower Mount Storm, LLC.......................................................
739
Buren v. Midwest Indus., Inc.................. 606
Burgbacher v. Lazar................................ 258
Burgdorfer v. Thielemann..................... 1136
Burgess v. Busby................................... 1018
Burgess v. Clements................................ 191
Burgess v. Reformer Publ’g Corp............ 950
Burgess v. Shampooch Pet Indus., Inc.........................................................
857
Burke v. Rivo........................................... 682
Burkons v. Ticor Title Ins. Co. of Cal...................................................... 1135
Burless v. West Virginia University Hospitals, Inc.......................................
770
Burley v. Kytec Innovative Sports Equipment, Inc............................. 810,
817
Burlington N. & Santa Fe Ry. Co. v. United
States............................................ 878, 885
Burnett v. Al Baraka Inv. & Dev. Corp.......................................................
712
Burnett v. Columbus McKinnon Corp.... 890
Burns v. Hanson.............................. 678, 680
Burns v. McGraw Hill Broad. Co., Inc.... 945
Burns v. Metz........................................... 505
Burns v. Reed........................................... 578
Burns v. Smith......................................... 919
Burr v. Board of Cnty. Comm’rs of Stark Cnty..............................................
678, 728
Burrow v. K-Mart Corp.............................. 75
Burton v. Crowell Publ’g Co.................... 996
Burton v. Des Moines Metro. Transit Auth......................................................
448
Burton v. R.J. Reynolds Tobacco Co.......... 40
Busby v. Quail Creek Golf & Country Club....................................... 254,
258, 663
Buscaglia v. United States...................... 556
Buscher v. Boning.................................. 1037
Bush v. Industrial Comm’n..................... 916
Bushong v. Garman Co............................ 833
Business Men’s Assurance Co. of Am. v. Graham.........................................
405, 406
Busta v. Columbus Hosp. Corp....... 350, 351
Buster v. George W. Moore, Inc............. 1097
Busy Fee Buffet v. Ferrell....................... 466
Butcher v. Gay......................................... 214
Butigan v. Yellow Cab Co. of Cal............ 221
Butler v. Acme Markets, Inc................... 639
Butler v. Flint Goodrich Hosp......... 873, 875
Butler v. Mooers..................................... 1187
Butler v. Town of Argo............................. 578
Butler-Tulio v. Scroggins......................... 303
Butz v. Economou............................ 581, 585
Byers v. Cummings................................ 1168
Bylsma v. Burger King Corp................... 805
Byrd Theatre Found. v. Barnett.............. 598
Byrd v. Bowie......................................... 1172
Byrd v. English...................................... 1067
Byrd v. Faber........................................... 763
Byrne v. Schneider’s Iron & Metal, Inc.........................................................
696
Byrns v. Riddell, Inc................................ 814
Byron Chemical Co. v. Groman............. 1181
C.A. v. William S. Hart Union High School
Dist................................................ 647, 658
C.A.R. Transp. Brokerage Co., Inc. v.
Seay....................................................... 125
C.B.C. Distribution and Marketing, Inc. v. Major League Baseball
Advanced Media, L.P....................................................... 1207
C.H. v. Los Lunas Schools Bd. of Educ...................................................... 267
C.R. v. Tenet Healthcare Corp................ 754
C.R.S. v. United States............................ 557
C.T.W. v. B.C.G. & D.T.G................ 226, 228
C.W. v. Cooper Health System................ 660
Cabaness v. Thomas........................ 708, 709
1222
Cabe v. Lunich......................................... 863

Cabletron Sys., Inc. v. Miller................ 1046
Caboni v. General Motors Corp.............. 807
Cabral v. Ralphs Grocery Co........... 319, 386
Caddo Valley, City of v. George.............. 575
Cadena v. Chicago Fireworks Mfg. Co..........................................................
787
Caiazzo v. Volkswagenwerk.................... 406
Cain v. Darby Borough.......................... 1035
Cain v. Hearst Corp............................... 1020
Cain v. McKinnon...................................... 61
Cairl v. City of St. Paul........................... 161
Cairns v. Franklin Mint Co................... 1209
Calabretta v. Nat’l Airlines, Inc............. 303
Caldwell v. CVS Corp................................ 66
Calhoun v. Bell...................................... 1027
Calhoun v. Chase Manhattan Bank....... 964
Caliri v. State Dep’t of Transp................ 215
Callahan v. Stanley Works................... 1160
Callery v. U.S. Life Ins. Co. in the City of New
York........................................... 1145
Calles v. Scripto-Tokai Corp.......... 813, 814, 815
Calloway v. City of New Orleans.... 287, 530
Calloway v. Kinkelaar............................. 241
Calomiris v. Woods................................ 1129
Caltex, Inc., United States v................... 159
Calvillo-Silva v. Home Grocery............... 402
Calvin Klein Ltd. v. Trylon Trucking Corp......................................................
120
Calwell v. Hassan............................ 501, 502
Camacho v. Honda Motor Co.................. 814
Camden Oil Co., LLC v. Jackson............ 244
Camerlinck v. Thomas............................ 234
Cameron v. Abatiell................................. 606
Camicia v. Howard S. Wright Construction
Co.......................................................... 481
Camp St. Mary’s Ass’n of the W. Ohio Conference of United Methodist
Church, Inc. v. Otterbein Homes.................... 1081
Campagnola v. Mulholland, Minion & Roe......................................................
1185
Campbell v. City of Elmira..................... 241
Campbell v. Delbridge............................. 731
Campbell v. General Motors Corp.......... 825
Campbell v. Naman’s Catering, Inc...... 1153
Campbell v. Ohio State Univ. Medical
Center................................................... 659
Campbell v. State Farm Mut. Auto. Ins. Co................................................
710, 1139
Campbell v. Van Roekel.......................... 863
Campen v. Stone...................................... 865
Camper v. Minor...................... 714, 723, 724
Campos v. Firestone Tire & Rubber Co..........................................................
829
Canaan v. Bartee................ 1186, 1187, 1190
Canal Barge Co., Inc. v. Torco Oil Co..... 283
Canape v. Petersen.................................. 249
Canavan v. Galuski................................. 329
Candy H. v. Redemption Ranch, Inc........ 77
Canesi v. Wilson...................................... 679
Caneyville Volunteer Fire Department v. Green’s Motorcycle Salvage,
Inc.......... 566
Canipe v. National Loss Control Serv. Corp...............................................
629, 630
Cannon v. Dunn......................................... 95
Cannons Eng’g Corp., United States v...... 17
Cantalino v. Danner............................... 1034
Canterbury v. Spence....................... 182, 516
Canton v. Graniteville Fire Dist. No. 4.... 89, 93
Canton, City of v. Harris......... 584, 587, 588
Cantrell v. Forest City Pub. Co............ 1019, 1022
Caparella, Commonwealth v................. 1154
Cape Publ’ns, Inc. v. Bridges................. 1016
Capital Transit Co. v. Jackson................ 448
Caporale v. C.W. Blakeslee and Sons,
Inc......................................................... 787
Caprara v. Chrysler Corp................ 816, 823
Caprer v. Nussbaum.............................. 1106
Caputzal v. Lindsay Co............................ 340
Car Transportation v. Garden Spot Distributors.......................... 108, 110,
118
Carafano v. Metrosplash.com., Inc.......... 972
Caravaggio v. D’Agostini......................... 431
Carbone v. Tierney................................. 1185
Cardenas v. Muangman........................... 719
Cardina v. Kash N’ Karry Food Stores,
Inc......................................................... 304
Cardtoons, L.C. v. Major League Baseball Players
Ass’n...................................... 1207
Carey v. Berkshire R.R............................ 685
Carey v. Lovett......................................... 730
Carey v. Piphus........................................ 150
Cargill, Inc. v. Boag Cold Storage Warehouse, Inc...................................
1087
Carignan v. New Hampshire Int’l Speedway, Inc.......................................
624
Carignan v. Wheeler................................ 295
Caristo v. Sanzone........................... 219, 220
Carl A. Colteryahn Dairy, Inc. v. Schneider
Dairy................................................... 1206
Carlin v. Superior Court.......................... 826
Carlsen v. Koivumaki................................ 65
Carmago v. Tjaarda Dairy....................... 657
Carmel v. Lundy.................................... 1188
Carmichael v. Halstead Nursing Center,
Ltd....................................................... 1152
Carnegie v. Household Int’l, Inc.............. 909
Carnes v. Thompson.................................. 79
Caro v. Weintraub.................................. 1010
Carona de Camargo v. Schon.................. 687
Carpenter, State v........................ 1001, 1158
Carpenter v. Doubler Cattle Co., Inc...... 742
Carpenter v. O’Day.................................. 611
Carpentier v. Tuthill.................................. 83
Carr v. Mobile Video Tapes, Inc.............. 165
Carr v. Strode................................... 293, 517
Carr v. Turner.......................................... 661
Carr v. Wm. C. Crowell Co...................... 761
Carrano v. Yale-New Haven Hosp.......... 691
Carranza v. United States............... 671, 686
1223
Carraway v. Kurtts................................. 539

Carrel v. Allied Prods. Corp.................... 835
Carrera v. Maurice J. Sopp & Son.......... 655
Carrier v. City of Amite........................... 827
Carrier v. Lake Pend Oreille School Dist.......................................................
646
Carriere v. Merrick Lumber Co.............. 911
Carrieri v. Bush..................................... 1050
Carrillo v. Boise Tire Co., Inc............ 60, 860
Carroll Air Sys., Inc. v. Greenbaum....... 758
Carroll Anesthesia Assocs., P.C. v. Anesthecare, Inc................................
1099
Carroll Towing Co., United States v....... 271
Carroll v. Owens-Corning Fiberglas Corp......................................................
441
Carroll v. Sisters of Saint Francis Health Servs.,
Inc............................................. 726
Carroll v. United States.......................... 551
Carroll v. W.R. Grace & Co..................... 697
Carrow Co. v. Lusby................................ 779
Carrubba v. Moskowitz......................... 1179
Carson v. Headrick.................................. 606
Carson v. Hercules Powder Co.............. 1068
Carson v. Here’s Johnny Portable Toilets, Inc.............................................
1006, 1208
Carson v. Maurer..................................... 526
Carter v. Kinney.............................. 462, 463
Carter v. Kurn......................................... 449
Carter v. Reynolds........................... 756, 759
Carter v. SSC Odin Operating Co., LLC.......................................................
538
Cartier v. Northwestern Elec., Inc......... 404
Cartwright v. Equitable Life Assurance Soc’y..............................................
399, 400
Carvel Corp. v. Noonan...... 1079, 1081, 1098
Carver v. Salt River Valley Water Users’
Ass’n..................................................... 484
Casciola v. F.S. Air Serv., Inc............... 1140
Casebolt v. Cowan................................... 208
Casey v. Estes.......................................... 490
Casey v. Merck & Co., Inc....................... 438
Casey v. Toyota Motor Engineering & Mfg. North America,
Inc...................... 810, 822
Cash v. Otis Elevator Co......................... 450
Cassady v. Goering.................................. 585
Cassady v. Tackett.................................... 75
Cassinos v. Union Oil Co. of California... 93, 95
Casteneda v. Olsher................................ 643
Castile v. Astrue...................................... 923
Castillo v. E.I. Du Pont de Nemours & Co.,
Inc......................................................... 188
Castillo, A.Q.C. ex rel. v. United States................................................... 551
Castle Rock, Town of v. Gonzales........... 588
Castro v. Hernandez-Davila... 256, 267, 357
Castronovo v. Murawsky......................... 183
Caterpillar Tractor Co. v. Beck....... 821, 824
Caterpillar, Inc. v. Shears....................... 827
Cates v. Cates.......................................... 594
Cates v. Taylor........................................... 83
Cates v. Wilson........................................ 860
Catron v. Lewis................................ 715, 717
Catsouras v. Dep’t of Cal. Highway Patrol..................................................
1011
Cattlemen’s Steakhouse, Inc. v. Waldenville........................................... 912
Caudle v. Betts..................................... 65, 82
Caudle v. Thomason......................... 952, 982
Caulfield v. Kitsap County...................... 621
Cauman v. George Washington Univ..... 727, 730
Cavanaugh, Estate of v. Andrade........... 575
Cavazos v. Franklin................................. 670
Cavens v. Zaberdac.......................... 395, 527
Cavillo-Silva v. Home Grocery................ 240
Cedar Falls, City of v. Cedar Falls Community School Dist.......................
368
Cedars-Sinai Med. Ctr. v. Superior Court...................................................
1028
Celanese Corp. of America v. Mayor and Council of
Wilmington......................... 121
Cemen Tech, Inc. v. Three D Industries,
LLC..................................................... 1204
Centocor, Inc. v. Hamilton............... 830, 831
Central GMC, Inc. v. Helms.................... 116
Central Pathology Serv. Med. Clinic, Inc. v. Superior
Court........................................ 58
Central Trust & Inv. Co. v. Signalpoint Asset Mgmt.,
LLC.............................. 1091
Cerny v. Cedar Bluffs Junior/Senior Pub. Sch................................. 214, 215,
231, 496
Certification of a Question of Law from the United States District Court,
In re..... 524, 623
Certified Question from the Fourteenth District Court of Appeals of Texas,
In re....................................................... 485
Cervantez v. J.C. Penney Co................... 154
Cervelli v. Graves..................................... 231
Chadbourne, III v. Kappaz...................... 252
Chaffee v. Seslar.............................. 680, 681
Chairez v. James Hamiliton Const. Co..........................................................
841
Chakalis v. Elevator Solutions, Inc......... 512
Chamberlain v. Chandler........................ 703
Chamberlain v. Mathis............................ 969
Chamberland v. Roswell Osteopathic Clinic,
Inc......................................................... 352
Chambers v. St. Mary’s School................ 468
Chambers v. Village of Moreauville........ 268
Chamilia, LLC v. Pandora Jewelry, LLC.....................................................
1114
Chance v. BP Chemicals.................... 96, 743
Chance v. Dallas County, Ala.......... 603, 604
Chandler v. Miller.................................. 1012
Chang v. Michiana Telecasting Corp........ 47
Chang v. State Farm Mut. Auto. Ins. Co..........................................................
694
Channel v. Loyacono.................... 1181, 1182
Chaparro v. Carnival Corp...................... 715
Chapel v. Allison...................................... 509
Chapin v. Knight-Ridder, Inc.......... 950, 980
Chapman v. Bearfield............................ 1168
1224
Chapman v. Cardiac Pacemakers, Inc.........................................................

697
Chapman v. Chapman.................... 462, 463
Chapman v. Harner................................. 300
Chapman v. Journal Concepts, Inc....... 1007
Chapman v. Maytag Corp............... 838, 842
Chapman v. Willey.................................. 468
Chappell v. Wallace................................. 559
Charbonneau v. MacRury....................... 235
Charette v. Santspree............. 489, 490, 492
Charles Atlas, Ltd. v. DC Comics, Inc.......................................................
1198
Charleston Joint Venture v. McPherson............................................. 96
Charvat v. Dispatch Consumer Servs.,
Inc....................................................... 1012
Chase v. Independent Practice Ass’n,
Inc......................................................... 534
Chase v. Sabin......................................... 431
Chatelain v. Kelley.................................. 670
Chatham Furnace Co. v. Moffatt.......... 1122
Chavez v. Cedar Fair, LP................ 217, 448
Cheape v. Town of Chapel Hill................. 94
Cheatham v. Paisano Publ’ns., Inc....... 1009
Cheatham v. Pohle.................................. 876
Cheeks v. Dorsey..................................... 500
Chemical Corp. of America v. Anheauser-Busch,
Inc........................................... 1198
Chemical Express Carriers, Inc. v. French..................................................
858
Chenault v. Huie..................................... 675
Cherepski v. Walker.............................. 1052
Chesapeake & Ohio Ry. v. Kelly............. 859
Chesher v. Neyer..................................... 729
Chevron Chemical Co., Ex parte.... 801, 827
Chianese v. Meier............................ 889, 903
Chicago & N.W. Ry. v. Tyler................... 789
Chicago City Ry. Co. v. Saxby................. 355
Chicago Flood Litigation, In re....... 744, 787
Chicago Title Ins. Co. v. Allfirst Bank... 271, 1152
Chicago v. Tribune Co............................. 954
Chicago, B & Q Ry. Co. v. Krayenbuhl... 269
Chicago, B & Q Ry. Co. v. Chicago......... 564
Chicago, City of v. Berretta U.S.A. Corp......................................................
342
Child v. Central Maine Med. Ctr............ 599
Childress v. Bowser................................. 489
Childs v. Purll.................................. 250, 492
Chiu v. City of Portland.......... 488, 491, 542
Chizmar v. Mackie.................. 723, 725, 727
Chlopek v. Schmall.................................. 857
Choate v. Ind. Harbor Belt R.R.............. 233
Chodorov v. Eley...................................... 220
Choi v. Anvil.................................... 314, 855
Choksi v. Shah......................................... 955
CHoPP Computer Corporation, Inc. v. United
States....................................... 562
Choquette v. Isacoff............................... 1179
Choski v. Shah....................................... 1052
Chouinard v. Health Ventures................ 722
Chrismon v. Brown.................................. 425
Christensen & Jensen, P.C. v. Barrett &
Daines................................................. 1164
Christensen v. Munsen............................ 506
Christensen v. Murphy............................ 608
Christensen v. Royal Sch. Dist. No. 160.......................... 391, 393, 396, 399
Christensen v. Superior Court (Pasadena Crematorium of
Altadena)................... 729
Christenson v. Bergeson............................ 40
Christenson v. Gutman............................ 976
Christian v. Lapidus.............................. 1040
Christiansen v. Providence Health Sys. of Or.
Corp................................................ 437
Christman v. Davis.......................... 169, 515
Christy v. Stauffer Publ’ns, Inc............... 959
Chu v. Bowers.......................................... 392
Chu v. Hong............................................ 1176
Church of Christ in Hollywood v. Superior
Court....................................................... 96
Chuy v. Philadelphia Eagles Football
Club....................................................... 993
Cicorelli v. Capobianco.......................... 1178
Ciervo v. City of New York...................... 610
Cilley v. Lane................................... 615, 621
Cimino v. Rosen..................................... 1034
Cipollone v. Liggett Group, Inc........ 45, 405, 441, 830
Circle K Store No. 1131 v. Industrial Comm’n of
Ariz..................................... 915
Cislaw v. Southland Corp........................ 766
Citadel Management, Inc. v. Telesis Trust,
Inc....................................................... 1154
Cities Service Co. v. State........................ 789
Citizen Publ’g Co. v. Miller...................... 710
City Consumer Servs., Inc. v. Metcalf...................................... 1074, 1075
Ciup v. Chevron U.S.A., Inc.................... 766
Clampitt v. American Univ............. 941, 948
Clark v. America’s First Credit Union.... 982
Clark v. Binney........................................ 937
Clark v. Children’s Mem’l Hosp...... 677, 681
Clark v. District of Columbia.................. 510
Clark v. Druckman................................ 1037
Clark v. Iowa Dep’t of Revenue & Fin.......................................................
1121
Clark v. McDaniel.................................. 1134
Clark v. Rowe............................... 1074, 1165
Clark v. Southview Hosp. & Family Health Ctr.........................................
530, 772, 773
Clark v. St. Dominic-Jackson Mem’l Hosp.............................................. 267,
530
Clarke v. Martucci................................... 314
Clarke v. Oregon Health Sciences Univ......................................................
873
Clary v. Lite Machines Corp.................. 1174
Clawson v. St. Louis Post-Dispatch, LLC.......................................................
950
Clay City Consol. Sch. Corp.v. Tiberman.............................................. 385
Clay Elec. Coop., Inc. v. Johnson............. 629
Clay v. Brand......................................... 1119
Clay v. Lagiss......................................... 1000
1225
Clayton v. Richards..................... 1010, 1012
Claytor v. Owens-Corning Fiberglas Corp......................................................
315
Cleary v. Manning................................... 302
Cleland v. Bronson Health Care Group,
Inc......................................................... 532
Clem v. Lomeli......................................... 585
Clemensen v. Providence Alaska Med.
Ctr........................................................ 732
Cleveland Campers, Inc. v. McCormack........................................ 1166
Cleveland Park Club v. Perry................... 87
Cleveland v. Mann................................... 694
Cleveland v. Rotman..................... 209, 1183
Clift v. Narragansett Television L.P...... 372
Clinch v. Heartland Health.................. 1107
Clinic & Hospital v. McConnell...... 738, 739
Clinkscales v. Carver.............................. 251
Clinkscales v. Nelson Secs., Inc..... 298, 304, 349, 472
Clinton v. Jones....................................... 581
Clites v. State.................................. 540, 542
Clo v. McDermott.................................... 781
Clohessy v. Bachelor............................... 718
Clohesy v. Food Circus Supermarkets, Inc........................................ 213,
466, 639
Cloud v. McKinney.................................. 992
Clymer v. Webster................................... 694
Coachmen Indus. v. Crown Steel Co...... 239
Coan v. New Hampshire Dep’t of Environmental Services...................... 482
Coastal Orthopaedic Institute, P.C. v. Bongiorno...........................................
1173
Coates v. Southern Maryland Co-op., Inc.........................................................
487
Coates v. United States........................... 553
Cobb v. Time, Inc..................................... 995
Cobbs v. Grant................................... 63, 515
Coburn v. City of Tucson......... 207, 216, 485
Coca-Cola Bottling Co. v. Hagan............ 726
Coca-Cola Co. v. Overland, Inc............. 1194
Coca-Cola Co. v. Purdy.......................... 1198
Cocchiara v. Lithia Motors, Inc............ 1131
Cochran v. Burger King Corp................. 462
Cochran v. Piedmont Publ’g Co. Inc...... 999, 1001
Cockrum v. Baumgartner....................... 681
Coffee v. McDonnell-Douglas Corp......... 651
Coffman v. Keene Corp................... 327, 833
Coggs v. Bernard..................................... 238
Cohen v. Alliant Enterprises, Inc........... 756
Cohen v. Bowdoin.................................... 959
Cohen v. Cabrini Med. Ctr...................... 209
Cohen v. Five Brooks Stable.......... 410, 411, 423
Cohen v. Smith.......................................... 63
Coho Res., Inc. v. Chapman.................... 603
Cok v. Cok.................................... 1042, 1044
Coker v. Wal-Mart Stores, Inc................ 244
Colavito v. New York Organ Donor Network, Inc........................................
112
Colbert v. Mooba Sports, Inc................... 716
Colbert v. World Publ’g Co.......... 1021, 1022
Colboch v. Uniroyal Tire Co.................... 810
Colby v. Carney Hosp.............................. 597
Cole v. Atlanta & W.P.R. Co.................... 703
Cole v. Chandler..................................... 1019
Cole v. Fairchild....................................... 465
Cole v. Hubanks............................... 605, 608
Cole v. South Carolina Elec. and Gas,
Inc......................................................... 479
Cole v. Star Tribune................................. 980
Cole v. Taylor........................................... 402
Coleman Estate ex rel. Coleman v. R.M. Logging,
Inc.......................................... 922
Coleman v. Newark Morning Ledger Co.................................................. 980,
981
Coleman v. Oregon Parks and Recreation
Dept....................................................... 479
Coleman v. Soccer Ass’n of Columbia..... 384
Coleman v. Steinberg............................... 491
Coleson v. City of New York.................... 715
Collazo v. United States.......................... 557
College of Charleston Foundation v.
Ham........................................................ 96
Collette v. Tolleson Unified School Dist. No.
214......................................................... 658
Collins v. City of Harker Heights, Texas............................................. 583,
587
Collins v. Eli Lilly Co............................... 329
Collins v. King.......................................... 860
Collins v. Mo. Bar Plan.......................... 1055
Collins v. Navistar, Inc.................... 840, 841
Collins v. Otto.......................................... 783
Collins v. Reynard.............. 1074, 1126, 1164
Collins v. Scenic Homes, Inc.................... 433
Collins v. Straight, Inc............. 74, 75, 76, 77
Collins v. Superior Air-Ground Ambulance Serv.,
Inc....................................... 308, 309
Collins v. Thomas..................................... 622
Collins v. United States................... 556, 557
Collyer v. S.H. Kress Co.................. 153, 154
Colon v. Apfel........................................... 924
Colonial Imports, Inc. v. Carlton Nw., Inc.......................................................
1125
Colosimo v. Roman Catholic Bishop of Salt Lake
City...................................... 430, 439
Colt v. M’Mechen..................................... 193
Colton v. Onderdonk................................ 791
Columbia Med. Ctr. of Las Colinas, In re.......................................................
695
Columbia Med. Ctr. of Las Colinas, Inc. v.
Hogue.................................................... 317
Columbia Rio Grande Healthcare, L.P. v. Hawley..........................................
331, 369
Columbia, District of v. Harris................ 297
Colwell v. Holy Family Hosp................... 512
Comeau v. Lucas...................................... 399
Comedy III Productions, Inc. v. Gary Saderup, Inc............................. 1207,
1208
Comer v. Texaco, Inc................................ 603
Comins v. Discovery Commc’ns, Inc...... 1007
Command Cinema Corp. v. VCA Labs,
Inc......................................................... 121
1226
Commerce Bank v. Augsburger.............. 594

Commerce Funding Corp. v. Worldwide Sec. Servs.
Corp......................................... 1103
Commerce Ins. Co. v. Ultimate Livery Serv.,
Inc......................................................... 204
Commercial Carrier Corp. v. Indian River
County.................................................. 572
Commercial Ventures, Inc. v. Rex M. & Lynn Lea Family Trust...........
1095, 1097
Comminge v. Stevenson.......................... 743
Commonwealth, Transp. Cabinet, Dep’t of Highways v.
Sexton..................... 484, 569
Community Dental Services v. Tani..... 1164
Community Fed. Sav. & Loan Ass’n v. Orondorff............................................
1198
Community Resources for Justice, Inc. v. City of
Manchester.............................. 526
Compco Corp. v. Day-Brite Lighting, Inc.......................................................
1203
Concerned Parents of Pueblo v. Gilmore................................................. 600
Concord Florida, Inc. v. Lewin................ 364
Condit v. Dunne....................................... 979
Condit v. Nat’l Enquirer, Inc.................. 985
Condon v. Vickery.................................. 1038
Condra v. Atlanta Orthopaedic Group,
P.C........................................................ 510
Coney v. J.L.G. Indus., Inc...... 836, 838, 842
Congregation of the Passion, Holy Cross Province v. Touche Ross &
Co.......... 1074, 1087
Conklin v. Hannoch Weisman.... 1170, 1177
Conley v. Boyle Drug Co......................... 330
Conley v. Lieber..................................... 1169
Conley v. Life Care Centers of America,
Inc......................................................... 546
Conley v. Romeri................................... 1118
Connecticut v. Doehr............................. 1047
Connell v. Call-A-Cab, Inc...................... 763
Connell, Fandrey ex rel. v. American Family Mut. Ins. Co.............................
340
Connelly v. City of Omaha...................... 566
Connelly v. McKay.................................. 948
Conner v. Farmers and Merchs. Bank..................................................... 229
Conner v. Menard, Inc............................. 304
Connick v. Thompson...................... 586, 587
Connolley v. Omaha Pub. Power District................................................. 101
Connolly v. Holt....................................... 594
Connor v. Hodges..................................... 721
Conservatorship of Gregory............ 252, 545
Considine v. City of Waterbury............. 250, 292, 566
Consolidated Aluminum Corp. v. C.F. Bean
Corp.................................................... 1067
Consolidated Rail Corp. v. Gottshall...... 715
Conte v. Girard Orthopaedic Surgeons Med.
Group.............................................. 62, 169
Contemporary Mission, Inc. v. New York Times
Co.............................................. 994
Conti v. Ford Motor Co............................ 834
Contreras v. Crown Zellerbach Corp....... 709
Contreras v. Vannoy Heating & Air Conditioning, Inc..................................
307
Control Techniques, Inc. v. Johnson...... 376, 377, 390
Convit v. Wilson....................................... 369
Conway v. Pacific Univ.......................... 1125
Cook ex rel. Uithoven v. Spinnaker’s of Rivergate,
Inc....................................... 232
Cook v. Connolly.................................... 1174
Cook v. DeSoto Fuels, Inc.................... 89, 98
Cook v. Shoshone Nat’l Bank.................. 372
Cook v. Winfrey........................................ 946
Coombes v. Florio............................. 500, 501
Coombs v. Curnow................................... 314
Coomer v. Kansas City Royals Baseball
Corp....................................................... 422
Cooper Clinic, P.A. v. Barnes.................. 757
Cooper Indus., Inc. v. Leatherman Tool Group,
Inc............................................. 868
Cooper v. Berkshire Life Ins. Co........... 1124
Cooper v. Cooper.................................... 1145
Cooper v. Corporate Property Investors....................................... 463, 464
Cooper v. Horn........................................... 93
Cooper v. Parker-Hughey.............. 966, 1024
Copart Indus., Inc. v. Consolidated Edison Co. of New York, Inc.............
734, 737, 738
Cope v. Scott..................................... 556, 557
Copeland v. Baltimore & Ohio R. Co....... 460
Copeland v. Compton............................... 199
Copier v. Smith & Wesson Corp.............. 788
Copple v. Warner..................................... 370
Corales v. Bennett.................................... 732
Corcoran v. United Healthcare, Inc........ 536
Cordes v. Outdoor Living Ctr., Inc........ 1028
Cordial v. Ernst & Young...................... 1124
Corey v. Pierce County.......................... 1022
Corgan v. Muehling................. 253, 723, 746
Corinaldi v. Columbia Courtyard, Inc.........................................................
453
Corley v. Rosewood Care Ctr., Inc. of Peoria..................................................
1116
Cornell v. Wunschel............. 728, 1139, 1183
Cornett v. Johnson & Johnson................ 847
Corporex Dev. & Constr. Mgmt., Inc. v. Shook,
Inc........................................... 1087
Correa v. Hospital San Francisco............ 533
Correia v. Fagan.................................... 1188
Cortez v. Jo-Ann Stores, Inc.................... 972
Coscia v. McKenna & Cuneo....... 1187, 1191
Cosgrove v. Commonwealth Edison Co..........................................................
305
Cosner v. Ridinger................................. 1056
Costa v. Cmty. Emergency Med. Servs.,
Inc......................................................... 240
Costanza v. Seinfeld............................... 1021
Costello v. Ocean County Observer........ 977, 991, 992
Coster v. Crookham................................. 863
Costo v. United States............................. 561
Costos v. Coconut Island Corp......... 543, 758
1227
Cotati, City of v. Cashman...................... 985

Cottam v. CVS Pharmacy....................... 627
Cotton v. Buckeye Gas Products Co....... 827
Cottonwood Enters. v. McAlpin............ 1074
Cottrell v. Kaysville City, Utah.............. 583
Cottrell v. National Collegiate Athletic
Ass’n..................................................... 959
Cottrell v. Zagami, LLC.......................... 966
Couch v. Red Roof Inns, Inc............ 880, 889
Coughlen v. Coots.................................. 1036
Coulombe v. Salvation Army.................. 599
Coulter v. Michelin Tire Corp................. 303
Countrywide Home Loans, Inc. v. Thitchener............................................
862
Coursey v. Westvaco Corp............... 480, 481
Court v. Grzelinski.................................. 606
Courtenay Communications Corp. v. Hall.....................................................
1199
Cousins v. Lockyer.................................. 585
Coveleski v. Bubnis................................. 671
Covell v. McCarthy.................................... 75
Covenant Health & Rehab. of Picayune, LP v. Estate of
Moulds...................... 413, 694
Cover v. Cohen......................................... 282
Cover v. Phillips Pipe Line Co.................. 88
Coville v. Liberty Mut. Ins. Co................ 622
Cowan v. Doering.................... 227, 372, 394
Cowan v. Hospice Support Care, Inc................................................. 240, 598
Cowart v. Widener................................... 314
Cowe v. Forum Group, Inc...................... 677
Cowell v. Thompson................................ 259
Cowles v. Brownell................................ 1035
Cowles v. Carter.................................... 1038
Cox Broad. Corp. v. Cohn.............. 978, 1017
Cox Enters., Inc. v. Nix................... 949, 955
Cox v. City of Dallas................................ 885
Cox v. Crown Coco, Inc............................ 859
Cox v. Hatch.......................... 948, 990, 1006
Cox v. M.A. Primary and Urgent Care Clinic............................................
496, 530
Cox v. May Dep’t Store Co...................... 309
Cox v. Paul............................................... 505
Coyazo v. State...................................... 1191
Coyle v. Englander’s................................ 625
Coyle v. Richardson-Merrell, Inc.... 830, 831
Coyne’s & Co., Inc. v. Enesco, LLC......... 111
Crabtree v. Dawson................................. 135
Craft v. Peebles........................................ 831
Craig & Bishop, Inc. v. Piles................... 126
Craig v. Driscoll............................... 248, 356
Craig Wrecking Co. v. S.G. Loewendick & Sons,
Inc............................................... 150
Crain v. The Unauthorized Practice of Law Comm. of the Supreme Court
of Tex........................................................ 967
Craine v. Trinity Coll............................ 1125
Cramer v. Hous. Opportunities Comm’n of Montgomery
Cty.................................. 230
Cramer v. Slater...... 341, 342, 369, 372, 696, 732
Crane v. Neal........................................... 390
Cranshaw v. Cumberland Farms, Inc..... 483
Crawford v. Busbee................................ 1025
Crawford v. French.............................. 85, 87
Crawford v. Mintz.................................... 384
Crawford v. Sears Roebuck & Co............ 811
Crawford v. Tilley.................................... 482
Crawn v. Campo................................... 8, 425
Creasey v. Hogan............................. 494, 511
Creasy v. Rusk......................... 226, 420, 613
Credit Union Central Falls v. Groff..... 1163, 1166
Creech v. South Carolina Wildlife and Marine Resources
Dept........................ 569
Creel v. L & L, Inc.................................... 422
Cresson v. Louisville Courier-Journal.................................................. 977
Crews v. Hollenbach................................ 415
Crinkley v. Holiday Inns, Inc.................. 773
Criscuola v. Andrews............................... 691
Croaker v. Mackenhausen....................... 476
Crocker v. Morales-Santana.................... 764
Crocker v. Pleasant.................................. 704
Crookham v. Riley.................................. 1169
Crosby v. Glasscock Trucking Co., Inc.........................................................
671
Crosby v. Hummell.................................. 236
Cross v. Trapp.......................................... 518
Crosslin v. Health Care Auth. of City of
Huntsville............................................. 429
Crotteau v. Karlgaard.............................. 136
Crouch v. Cameron.................................... 73
Crowell v. Crowell.................................... 176
Crowley v. N. Am. Telecomms. Ass’n...... 708
Crowne Investments, Inc. v. Reid........... 541
Cruz v. City of New York......................... 367
Cruz v. DaimlerChrysler Motors Corp.......................................................
307
Cruz v. Middlekauff Lincoln-Mercury,
Inc......................................................... 363
Cruz-Vazquez v. Mennonite General Hospital, Inc.........................................
533
CSX Transp., Inc. v. Begley..................... 384
CSX Transp., Inc. v. Continental Ins.
Co.......................................................... 346
CSX Transp., Inc. v. Easterwood...... 45, 441, 442
CSX Transp., Inc. v. Hensley................... 725
CSX Transp., Inc. v. McBride.................. 247
CSX Transp., Inc. v. Miller...... 331, 401, 890
CSY Liquidating Corp. v. Harris Trust & Sav.
Bank............................................ 1093
CTL Distrib., Inc., State v....................... 329
Cucinotta v. Deloitte & Touche, LLP...... 965
Culbert v. Sampson’s Supermarkets, Inc................................................. 723,
731
Cullip v. Domann..................................... 243
Cullison v. Medley................................ 71, 97
Cullum v. McCool..................................... 638
Culp Constr. Co. v. Buildmart Mall...... 1124
Culpepper v. Pearl St. Bldg., Inc..... 112, 704
Cult Awareness Network v. Church of Scientology Intern....................
1040, 1041
1228
Cumberland Torpedo Co. v. Gaines........ 743

Cummings v. HPG Int’l, Inc........ 1133, 1136
Cummins v. Lewis County...................... 625
Cunningham v. Yankton Clinic.............. 182
Cunnington v. Gaub................................ 767
Cuonzo v. Shore....................................... 329
Curiano v. Suozzi................................... 1111
Curran v. Bosze....................................... 174
Curran v. Buser....................................... 521
Currie v. Silvernale......................... 157, 158
Currier v. Amerigas Propane, L.P.......... 919
Curtis Publ’g Co. v. Butts.............. 989, 992, 993, 995
Curtis v. Carey........................................ 116
Curtis v. Firth.......................................... 711
Curtis v. MRI Imaging Servs., II.... 731, 732
Curtis v. Porter.......................................... 56
Curtis v. Traders Nat’l Bank.................. 415
Cushing v. Time Saver Stores, Inc......... 672
Cushman v. Trans Union Corp............... 946
Custodi v. Town of Amherst.................... 425
Customer Co. v. City of Sacramento....... 161
Cutshall v. United States........................ 561
Cutts v. American United Life Ins. Co..........................................................
974
Cuyler v. United States........................... 246
Cweklinsky v. Mobile Chemical Co........ 943
Cygan v. Kaleida Health......................... 532
Cyr v. State.............................................. 157
Czap v. Credit Bureau of Santa Clara Valley.................................................
1043
D.L. v. Huebner....................................... 282
D.R. Strong Consulting Eng’rs, Inc...... 1123
D’Ambrosio v. Colonnade Council of Unit
Owners............................................... 1119
D’Ambrosio v. Philadelphia.................... 258
D’Amico v. Christie.......................... 664, 665
D’Angelo-Fenton v. Town of Carmel..... 1111
D’Ascanio v. Toyota Industries Corp..... 809, 812
d’Hedouville v. Pioneer Hotel Co............ 364
Dacey v. New York County Lawyers’ Ass’n...................................................
1038
DaFonte v. Up-Right, Inc................ 890, 920
Dagley v. Thompson................................ 232
Dahlin v. Evangelical Child & Family
Agency.................................................. 728
Dahna v. Clay County Fair Ass’n........... 451
Dailey v. Methodist Med. Ctr.................. 312
Daily v. New Britain Mach. Co............... 848
DaimlerChrysler Corp. v. Kirkhart....... 963, 964, 1108
Dakter v. Cavallino................................. 231
Dale v. Guaranty Nat’l Ins. Co............. 1147
Dalehite v. United States........ 551, 553, 554
Daley v. A.W. Chesterton, Inc................. 441
Daley v. United States............................ 556
Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd.............. 1197,
1198
Dallas, City of v. Heard........................... 782
Dalley v. Dykema Gossett, P.LLC....... 1011, 1012
Dalley v. Utah Valley Reg’l Med. Ctr..... 307, 309
Dalton v. Favour...................................... 192
Daluiso v. Boone............................... 148, 149
Dalury v. S-K-I, Ltd................................. 413
Daly v. General Motors Corp.......... 835, 837, 838, 842
Daly v. McFarland................................... 220
Dameron v. Washington Magazine......... 977
Dan Nelson Const., Inc. v. Nodland & Dickson...............................................
1173
Danca v. Taunton Sav. Bank................. 1140
Daniel v. Ben E. Keith Co........................ 833
Daniel v. City of Colorado Springs.......... 482
Danielle A. v. Christopher P.................... 654
Daniels v. Gamma West Brachytherapy,
LLC....................................................... 516
Daniels v. Twin Oaks Nursing Home..... 542
Daniels v. Williams.......................... 583, 587
Danos v. Boh Bros. Constr. Co., LLC...... 921
Darby & Darby, P.C. v. VSI Intern., Inc.......................................................
1169
Darcars Motors of Silver Springs, Inc. v. Borzym.......................... 110, 112,
114, 126
Dardeen v. Kuehling.................... 1159, 1160
Dare v. Sobule.......................................... 408
Darling v. Charleston Cmty. Mem. Hosp...................................... 282, 530,
657
Darling v. J.B. Expedited Servs., Inc...... 291
Darnell v. Eastman.................................. 314
Darrough v. Glendale Heights Cmty. Hosp......................................................
309
Dart v. Wiebe Mfg., Inc............................ 821
Dastar Corp. v. Twentieth Century Fox Film Corp..................................
1194, 1199
Daubert v. Merrell Dow Pharms., Inc................................................. 293,
673
Daugherty v. Allee’s Sports Bar & Grill.......................................................
762
Daughten v. Fox....................................... 857
Dausch v. Rykse....................................... 457
Dauzat v. Curnest Guillot Logging Inc.........................................................
268
Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at
Pilgrims Landing, LC......................... 1060
Davey Compressor Co. v. City of Delray
Beach...................................................... 97
David v. DeLeon....................................... 355
David v. Hett.......................................... 1084
David v. McLeod Regional Med. Ctr....... 506
Davidson v. Lindsey................................. 264
Davies v. Butler....................... 231, 232, 400
Davis v. Berwind Corp............. 829, 836, 841
Davis v. Brouse McDowell, L.P.A.......... 1173
Davis v. Caldwell..................................... 516
Davis v. Devereux Foundation................ 761
Davis v. Enget........................................ 1171
Davis v. Graviss....................................... 725
Davis v. Landis Outboard Motor Co....... 239, 240
Davis v. Marathon Oil Co........................ 245
1229
Davis v. McGuigan................................ 1120
Davis v. McMillan................................. 1031
Davis v. Monahan.................................... 128
Davis v. Nadrich.................................... 1077
Davis v. Pickell........................................ 708
Davis v. Provo City Corp......................... 428
Davis v. Rodman...................................... 660
Davis v. South Side Elevated R.R........... 451
Davis v. Sun Valley Ski Educ. Found.,
Inc......................................................... 410
Davis v. Toshiba Machine Co., America................................................ 848
Davis v. Van Camp Packing Co.............. 800
Davis v. Venture One Const., Inc........... 623
Davis v. Wal-Mart Stores, Inc............... 1158
Davis v. Westwood Group............... 484, 627
Davis v. White..................................... 79, 81
Dawe v. Dr. Reuven Bar-Levav & Associates, P.C.....................................
659
Dawson v. Bunker Hill Plaza Associates............................................. 466
Dawson v. Payless for Drugs.................. 472
Day v. Providence Hosp............................ 73
Day, Estate of v. Willis............................ 575
Dayton Construction, Inc. v. Meinhardt.......................................... 1152
Daytona Beach, City of v. Palmer........... 574
DCR Inc. v. Peak Alarm Co................... 1146
De Laveaga, Estate of............................... 96
De Leon Lopez v. Corporacion Insular de
Seguros................................................. 300
De Leon v. Saint Joseph Hosp., Inc........ 983
De Long v. County of Erie............... 572, 574
De May v. Roberts................................. 1011
Deadman v. Valley Nat’l Bank of Ariz..... 73
Deal v. Bowman....................................... 292
DeAmiches v. Popczun............................ 416
DeAngelis v. Hill..................................... 995
DeAngelis v. Jamesway Dep’t Store......... 76
Deasy v. United States............................ 557
Deauville Corp. v. Federated Dep’t Stores,
Inc....................................................... 1108
Debary v. Harrah’s Operating Co., Inc.......................................................
1093
DeBusscher v. Sam’s East, Inc............... 471
DeCarlo v. Eden Park Health Servs., Inc.........................................................
306
Decatur Auto Ctr. v. Wachovia Bank................................................... 1154
Deere & Co. v. MTD Products, Inc....... 1198
Deerings West Nursing Center v. Scott......................................................
543
Deflon v. Sawyers.................................. 1091
Defoor v. Evesque............................ 568, 569
Degennaro v. Tandon.............................. 513
DeGrella v. Elston................................... 174
Dehn v. Edgecombe................................. 527
Dehn v. S. Brand Coal & Oil Co............. 475
DeJesus v. United States Dep’t of Veterans
Affairs........................................... 656, 659
Del E. Webb Corp. v. Super. Ct...... 232, 401
Del Lago Partners, Inc. v. Smith.... 392, 397
Del Rio v. United States.......................... 561
Delahoussaye v. Mary Mahoney’s, Inc.........................................................
662
DeLaire v. Kaskel.................................... 608
DeLaney v. Baker............................ 541, 548
DeLaney v. Deere and Co................ 809, 821
Delaney v. Reynolds................................. 372
Delaware, Lackawanna and Western R. Co. v.
Salmon.............................................. 360
Delbrel v. Doenges Bros. Ford, Inc.......... 342
Delfino v. Griffo........................................ 241
Delgado v. Interinsurance Exch. of Auto. Club of S.
Cal........................................ 321
Delgado v. Trax Bar & Grill............ 620, 640
Deliso v. Cangialosi.......................... 233, 234
Della Penna v. Toyota Motor Sales, U.S.A.,
Inc....................................................... 1098
Dellwo v. Pearson............................. 236, 237
Delmarva Power & Light v. Stout........... 292
DeLong v. Yu Enters., Inc....................... 973
Delta Farms Reclamation Dist. v. Super.
Ct........................................................... 483
DeLuna v. Burciaga................................. 438
Delval v. PPG Indus., Inc........................ 940
Delvaux v. Ford Motor Co........................ 813
Demag v. Better Power Equip., Inc........ 478, 606
Demby v. English..................................... 992
DeMendoza v. Huffman........................... 876
DeMoss v. Hamilton................................. 395
Den Norske Ameriekalinje Actiesselskabet v. Sun Printing & Publ’g
Ass’n............ 999
DeNardo v. Bax........................................ 982
DeNardo v. Corneloup............................. 787
Dendrite Int’l, Inc. v. Doe........................ 971
Denison Parking, Inc. v. Davis................ 483
Denny v. Ford Motor Co.......................... 809
Denny v. Mertz......................................... 995
Dentists’ Supply Co. of New York v. Cornelius...............................................
128
Denton v. Browns Mill Dev. Co., Inc....... 984
Denver Publ’g Co. v. Bueno................... 1020
Department of Health & Soc. Servs., State v.
Mullins.............................................. 894
DePerno v. Hans...................................... 236
Depue v. Flatau................................ 141, 157
Deramus v. Donovan, Leisure, Newton &
Irvine.................................................. 1174
DeRobertis ex rel. DeRobertis v. Randazzo............................................... 217
Derricotte v. United Skates of Am.......... 423
Desai v. SSM Health Care......................... 73
DeSantis v. Employees Passaic County Welfare
Ass’n........................................ 968
Deschenes v. Transco, Inc........................ 918
Desert Healthcare Dist. v. PacifiCare FHP,
Inc....................................................... 1084
DeShaney v. Winnebago County Dep’t of Social Services..............................
588, 649
Desnick v. American Broad. Cos., Inc............................................... 177,
1011
Dessel v. Donohue.................................. 1183
1230
Destefano v. Grabrian...... 181, 456, 713, 763

Dethloff v. Zeigler Coal Co........................ 90
Detwiler v. Bristol-Myers Squibb Co...... 438
Deuel v. Surgical Clinic, PLLC............... 300
Deuley v. DynCorp Int’l, Inc................... 410
Deutcsh v. Birmingham Post Co............. 994
DeVane, United States v......................... 623
DeVaney v. Thriftway Mktg. Corp...... 1039, 1040, 1047
Dew v. Crown Derrick Erectors, Inc....... 367
Dewey v. Wentland................................ 1119
DeWolf v. Ford......................................... 703
DeYoung v. Providence Med. Ctr............ 435
Di Ponzio v. Riordan........................ 346, 349
Diamond v. E.R. Squibb and Sons, Inc.........................................................
848
Diamond v. Pappathanasi..................... 1145
Dias v. Brigham Med. Assocs., Inc........ 529, 764
Diaz v. Carcamo.............................. 657, 754
Diaz v. Oakland Tribune, Inc................ 1016
Diaz v. Phoenix Lubrication Serv., Inc.........................................................
283
Dibella v. Hopkins................................... 994
Dible v. Haight Ashbury Free Clinics.... 940
DiCaprio v. New York Cent. R.R............ 257
Dickens v. Puryear...................... 71, 84, 706
Dickens v. Sahley Realty Co., Inc........... 297
Dickey v. CBS, Inc................................... 979
Dickhoff v. Green..................................... 333
Dickins v. Int’l Bhd. of Teamsters.......... 975
Dickinson v. Clark................................... 480
Didato v. Strehler............................ 497, 679
Didier v. Ash Grove Cement Co.............. 650
Dier v. Peters......................................... 1116
Dietemann v. Time, Inc............... 1011, 1015
Dietrich v. Northhampton....................... 669
Dietz v. Finlay Fine Jewelry Corp........ 1018
Dietz v. General Elec. Co........................ 890
DiFranco v. Klein.................................... 509
Digicorp, Inc. v. Ameritech Corp............ 803
Dillard Dep’t Stores, Inc. v. Silva........... 154
Dillon v. Callaway................................... 180
Dillon v. Evanston Hosp.................. 334, 440
Dillon v. Frazer........................................ 293
Dillon v. Legg................................... 209, 715
Dillon v. Nissan Motor Co....................... 844
Dillworth v. Gambardella....................... 308
DiMarco v. Lynch Homes-Chester County, Inc.................................. 188,
366, 500, 660
Dimond v. Kling....................................... 234
Dincher v. Marlin Firearms Co............... 435
Dini v. Naiditch....................................... 606
Dinkel v. Lincoln Publ’g (Ohio), Inc........ 978
Dionne v. Southeast Foam Converting & Packaging,
Inc.................................... 1204
DiPino v. Davis........................................ 579
Dippin’ Dots, Inc. v. Frosty Bites Distribution, LLC.............................. 1202
Disciplinary Action Against McKechnie, In re...............................................
1164, 1166
Disciplinary Action Against Mertz, Matter
of............................................................ 973
Distefano v. Forester................................ 424
Distinctive Printing & Packaging Co. v.
Cox........................................................ 861
District of Columbia v. Chinn............ 58, 133
District of Columbia v. Hampton.... 496, 765
District of Columbia v. Howell................ 767
District of Columbia v. Jones.................. 969
District of Columbia v. Tulin................... 708
Diversicare General Partner, Inc. v. Rubio.....................................................
540
Diversified Mgmt., Inc. v. Denver Post,
Inc......................................................... 996
Dixon Ticonderoga Co. v. Estate of O’Connor.............................................
1166
Dixon v. International Bhd. of Police
Officers.................................................. 994
Dixon v. Superior Court Scientific Resource Surveys,
Inc.................................. 984, 985
Doan v. City of Bismarck................. 281, 292
Dobrovolny v. Ford Motor Co.................. 803
Dobson v. La. Power & Light Co..... 229, 231
Doca v. Marina Mercante Nicaraguense,
S.A......................................................... 859
Dockery v. World of Mirth Shows, Inc.........................................................
451
Dodson v. Allstate Ins. Co....................... 954
Dodson v. S.D. Dep’t of Human Servs............................................. 227, 384
Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville.....................
242, 712
Doe 67C v. Archdiocese of Milwaukee.......................................... 1135
Doe A. v. Coffee County Board of Educ......................................................
647
Doe Parents No. 1 v. State Dep’t of Educ...................... 265, 268, 621, 647,
716
Doe v. American Nat’l Red Cross............ 434
Doe v. Andujar......................................... 217
Doe v. Archdiocese of Cincinnati............. 439
Doe v. Archdiocese of Milwaukee............ 439
Doe v. Arts........................................ 725, 727
Doe v. Baxter Healthcare Corp............... 329
Doe v. Bishop of Charleston.................... 438
Doe v. Cahill............................................. 971
Doe v. City of Chicago.............................. 754
Doe v. Claiborne County, Tennessee....... 650
Doe v. Colligan......................................... 688
Doe v. Corporation of President of Church of Jesus Christ of Latter-Day
Saints............................................ 708, 709
Doe v. Dilling.................................. 391, 1118
Doe v. Doe............................................... 1052
Doe v. Dominion Bank of Washington................................... 283, 645
Doe v. Evans............................................. 456
Doe v. Forrest................................... 758, 762
Doe v. Friendfinder Network, Inc......... 1006
Doe v. Guthrie Clinic, Ltd....................... 531
Doe v. Liberatore............................ 456, 1144
Doe v. Linder Const. Co................... 362, 363
1231
Doe v. Marion.................................. 248, 571

Doe v. Marlington Local School Dist. Board of
Educ.................................................. 564
Doe v. McKay......................................... 1057
Doe v. McMillan....................................... 581
Doe v. Methodist Hosp.......................... 1018
Doe v. Miles Laboratories, Inc., Cutter Laboratories
Div.................................. 801
Doe v. Newbury Bible Church........ 761, 763
Doe v. Ortega-Piron................................. 241
Doe v. Pharmacia & Upjohn Co., Inc..... 209, 680
Doe v. Phillips.......................................... 578
Doe v. Rockdale Sch. Dist. No. 84........... 449
Doe v. Roe...................................... 180, 1015
Doe v. Saint Francis Hosp. & Medical
Center................................................... 657
Doe v. Samaritan Counseling Ctr.......... 757, 762
Doe v. State.............................................. 219
Doe v. TCI Cablevision......... 947, 1008, 1208
Doe v. Westfall Health Care Ctr., Inc.................................. 540, 543, 547,
677
Doe v. Zwelling...................................... 1052
Doehring v. Wagner........................ 145, 147
Doering v. WEA Ins. Group.................... 663
Doerner v. Swisher Int’l, Inc................... 720
Doerr v. Movius....................................... 173
Dokman v. Cnty. of Hennepin................ 161
Dolan v. Galluzzo.................................... 511
Dolan v. United States Postal Serv........ 562
Dolgencorp, Inc. v. Taylor....................... 470
Dollarhide v. Gunstream......................... 690
Domagala v. Rolland............................... 635
Dombey v. Phoenix Newspapers, Inc...... 990
Dombrowski v. Moore.............................. 512
Dominant Semiconductors SDN. BHD. v. Osram
GMBH.................................... 1091
Domingo v. T.K........................................ 513
Dominguez v. Manhattan & Bronx Surface Transit Operating
Auth....................... 397
Donaca v. Curry Cnty...................... 207, 485
Donahue v. Ledgends, Inc....................... 411
Donaldson v. Indianapolis Pub. Transp.
Corp...................................................... 243
Donaldson v. Maffucci..................... 505, 509
Donato v. Moldow.................................... 972
Donchez v. Coors Brewing Co............... 1209
Donigan v. Finn..................................... 1191
Donner v. Arkwright-Boston Mfrs. Mut. Ins.
Co.......................................................... 793
Donner v. Kearse..................................... 888
Donovan v. Fiumara................................ 959
Donovan v. Philip Morris USA, Inc....... 334, 851, 853, 854
Donovan v. Village of Ohio...................... 570
Doomes v. Best Transit Corp.................. 805
Dorais v. Paquin...................................... 234
Dore v. City of Fairbanks........................ 574
Dormu v. District of Columbia.................. 58
Dorn v. Burlington N. Santa Fe R.R. Co..........................................................
693
Dornak v. Lafayette General Hosp......... 651
Dorr v. Big Creek Wood Products, Inc.........................................................
464
Dorrin v. Union Elec. Co.......................... 234
Dorson, In re Guardianship of..... 1145, 1146
Dorton v. Francisco.................................. 464
Dorwart v. Caraway..................................... 3
Dos Santos v. Coleta................................ 471
Doser v. Interstate Power Co.................. 448
Doss v. Jones............................................ 938
Dotson v. Hammerman............................ 505
Dougan v. Nunes...................................... 781
Doughty v. Turner Manufacturing Co..........................................................
358
Douglas Labs. Corp. v. Copper Tan....... 1195
Douglas v. Bergland................................. 462
Douglas v. Delp...................................... 1183
Douglas v. Freeman................. 496, 510, 531
Douglas v. Humble Oil & Refining Co...... 97
Douglass v. Dolan.................................... 779
Doundoulakis v. Town of Hempstead..... 787
Douthit v. Jones................................... 73, 77
Dow Corning Corp., In re......................... 433
Dowdle Butane Gas Co. v. Moore......... 1157, 1159
Dowis v. Continental Elevator Co., Inc................................................. 628,
629
Dowler v. Boczkowski.............................. 489
Dowling v. Bullen................................... 1051
Downey v. Bob’s Discount Furniture Holdings, Inc.........................................
297
Downing v. Hyland Pharmacy......... 496, 831
Dowty v. Riggs......................................... 713
Doyle v. Volkswagenwerk A.G................ 844
Drabek v. Sabley.................................. 76, 78
Draghetti v. Chmielwski.......................... 976
Dragonas v. School Comm. of Melrose......................................... 980, 982
Drake v. Park Newspapers of Ne. Okla.,
Inc......................................................... 954
Draper Mortuary v. Superior Court........ 642
DRD Pool Serv., Inc. v. Freed.................. 687
Dresser Indus. v. Lee............................... 890
Driggers v. Locke..................................... 484
Driver v. Hice........................................... 118
Druyan v. Jagger.................................... 1111
Du Lac v. Perma Trans Prods., Inc........... 79
Dubay v. Irish............................................ 59
Dubbs v. Head Start, Inc........................... 63
Dubinsky v. Meermart........................... 1078
Dubreil v. Witt....................................... 1171
Dubreuil, In re.......................................... 514
Duchess v. Langston Corp....................... 823
Ducote v. State, Dep’t of Social and Health
Services................................................. 571
Duda v. Phatty McGees................... 415, 417
Dudas v. Glenwood Golf Club, Inc.......... 639
Duffin v. Idaho Crop Improvement Ass’n....................................................
1087
Duffy v. Togher........................................ 472
Dugan v. Mittal Steel USA Inc........ 939, 998
Duggar v. Arredondo................................ 402
1232
Duggin v. Adams......................... 1102, 1103

Dukes v. United States Healthcare, Inc.........................................................
536
Duling v. Bluefield Sanitarium, Inc....... 529
Dumas v. Cooney..................................... 331
Dumas v. State........................................ 887
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc....................... 990, 995,
1001
Dunagan v. Upham................................. 957
Duncan v. Cessna Aircraft Co................. 838
Duncan v. Corbetta................................. 284
Duncan v. Scottsdale Med. Imaging, Ltd................................. 169, 170, 175,
514
Duncavage v. Allen.......................... 353, 644
Dunleavy v. Miller................................... 380
Dunn v. City of Milwaukie...................... 160
Dunn v. Grand Canyon Airlines, Inc...... 302
Dunphy v. Gregor.................................... 721
Duphily v. Delaware Elec. Co-op., Inc......................................... 243, 354,
369
Dupler v. Seubert...................................... 76
Duprey v. Shane...................................... 921
Duracraft Corp. v. Holmes Prods. Corp.............................................. 985,
986
Durban v. Guajardo................................. 705
Duren v. Kunkel...................................... 780
Durham v. Guest................ 1040, 1042, 1047
Durkin v. Hansen.................................... 490
Durney v. St. Francis Hosp., Inc............. 598
Duty v. East Coast Tender Serv., Inc..... 253
Duvall v. Goldin....................................... 500
Dyer v. Maine Drilling & Blasting, Inc................................................. 314,
787
Dyer v. Superior Court............................ 603
Dyer v. Trachtman.................................. 499
Dykhoff v. Xcel Energy............................ 915
Dymond Cab Co. v. Branson................... 450
Dzenutis v. Dzenutis............................... 594
Dziubak v. Mott..................................... 1191
E.G., In re................................................ 172
E.I. du Pont de Nemours & Co. v. Christopher........................................
1204
E.I. du Pont de Nemours Powder Co. v.
Masland.............................................. 1206
E.J. Strickland Constr., Inc. v. Department of Agriculture and Consumer
Servs. of Florida.................................................. 114
E.P. v. Riley............................................. 572
E.S.S. Entertainment 2000, Inc. v. Rock Star Videos,
Inc.................................. 1196
Eagle Motor Lines, Inc. v. Mitchell........ 654
Eagle-Picher Indus., Inc. v. Balbos......... 833
Eagle-Picher Indus., Inc. v. Cox..... 440, 441, 725
Eaglesteon v. Guido................................. 588
East Coast Novelty Co., Inc. v. City of New
York...................................................... 107
East Penn Mfg. Co. v. Pineda................. 833
East River S.S. Corp. v. Transamerica Delaval, Inc............. 803, 1065,
1084, 1085
Eastern Steel Constructors, Inc. v. City of Salem........................................
1073, 1082
Eastin v. Broomfield................................ 861
Eastman v. R. Warehousing & Port Services, Inc..........................................
774
Eastwood v. Horse Harbor Found., Inc.......................................................
1084
Eastwood v. National Enquirer, Inc....... 994, 1020
Eaton v. Eaton......................................... 305
Eaton v. McLain............................... 388, 389
Ebanks v. New York City Transit Auth......................................................
307
EBC I, Inc. v. Goldman Sachs & Co...... 1144
EBWS, LLC v. Britly Corp.......... 1073, 1087
Eckman v. Cooper Tire & Rubber Co.................................................. 938,
983
Economopoulos v. A.G. Pollard Co.......... 940
Ed Miller & Sons, Inc. v. Earl............... 1133
Eddy v. Virgin Islands Water & Power
Auth........................................................ 56
Edelman v. Jordan................................... 564
Edenshaw v. Safeway, Inc....................... 470
Edgewater Motels, Inc. v. Gatzke.......... 758, 760
Edgin v. Entergy Operations, Inc............ 414
Edmonds v. Williamson......................... 1166
Edmunds v. Copeland.............................. 467
Edson v. Barre Supervisory Union No. 61....................................................
647
Edward C. v. City of Albuquerque.......... 422
Edwards v. Fogarty.................................. 697
Edwards v. Honeywell, Inc...................... 265
Edwards v. Lee’s Adm’r............................. 95
Edwards v. Lexington County Sheriff’s Dept...............................................
571, 572
Edwards v. National Audubon Soc’y, Inc................................................. 946,
979
Edwards v. Travelers Ins. of Hartford, Conn..........................................
1121, 1131
Egbert v. Nissan Motor Co...................... 840
Egede-Nissen v. Crystal Mountain, Inc.........................................................
467
Ehrgott v. City of New York.................... 339
Eighth Judicial Dist. Court ex rel. County of Clark, State
v................................... 975
Eight Thousand Eight Hundred and Fifty Dollars, United States
v....................... 583
Eisel v. Board of Educ. of Montgomery County..........................................
646, 658
Eiseman v. State...................................... 649
Eiss v. Lillis...................................... 395, 528
Eklund v. Trost........................................ 221
Elam v. Kansas City S. Ry. Co........ 441, 443
Eldeco, Inc. v. Charleston Cnty. Sch. Dist.................................. 1095, 1100,
1104
Elden v. Sheldon...................................... 720
Eldridge v. Johndrow................... 1100, 1101
Elgin v. Bartlett....................................... 719
Eli Investments, LLC v. Silver Slipper Casino Venture,
LLC........................... 364
Elkerson v. North Jersey Blood Ctr........ 281
Elkins v. Ferencz...................................... 528
Ellinwood v. Cohen.................................. 605
1233
Elliot, State v........................................... 151

Elliott v. Brunswick Corp....................... 835
Elliott v. Callan....................................... 258
Elliott v. City of New York.............. 244, 468
Elliott v. Denton & Denton..................... 116
Elliott v. Roach........................................ 980
Elliott v. Videan..................................... 1185
Ellis County State Bank v. Keever......... 294
Ellis v. Alabama Power Co........................ 93
Ellis v. Estate of Ellis...................... 436, 592
Ellis v. Price................................. 1000, 1052
Ellis v. Wellons...................................... 1044
Ellsworth v. Sherne Lingerie, Inc........... 839
Elmer Buchta Trucking, Inc. v. Stanley.......... 689
Elvis Presley Enterprises, Inc. v. Capece................................................ 1196
Emanuel v. Great Falls Sch. Dist........... 265
Emberton v. GMRI, Inc................... 438, 439
Emerich v. Phila. Ctr. for Human Dev. Inc.................................................
501, 659
Emerick v. Mutual Benefit Life Ins. Co..........................................................
111
Emerson v. Magendantz................. 680, 682
Emery v. State......................................... 161
Emo v. Milbank Mut. Ins. Co.................. 980
Empire Cas. Co. v. St. Paul Fire & Marine Ins.
Co.................................................. 676
Encinias v. Whitener Law Firm, P.A...................................................... 1173
Enders v. District of Columbia................. 73
Endorf v. Bohlender........................ 511, 527
Endres v. Endres............................... 58, 177
Engalla v. Permanente Med. Group, Inc............................................. 1116,
1130
Engel v. CBS, Inc......................... 1041, 1111
Engler v. Gulf Interstate Engineering,
Inc......................................................... 757
English v. General Elec. Co.................... 442
Ennabe v. Manosa........................... 665, 666
Ennett v. Cumberland Cnty. Bd. of Educ.............................................. 708,
724
Ensminger v. Burton....................... 110, 115
Entrekin v. Internal Medicine Associates of Dothan,
P.A.......................................... 538
Entriken v. Motor Coach Federal Credit
Union.................................................... 116
Environmental Network Corp. v. Goodman Weiss Miller, LLP....................
1174, 1175
Eppendorf-Netheler-Hinz GMBH v. Ritter
GMBH................................................ 1201
Equilon Enters., LLC v. Consumer Cause,
Inc................................................. 985, 986
Equitania Ins. Co. v. Slone & Garrett, P.S.C...................................................
1171
Equity Group Ltd. v. Painewebber Incorporated.........................................
111
Erbrich Products Co., Inc. v. Wills......... 740
Erdelyi v. Lott.......................................... 438
Ereth v. Cascade County....................... 1190
ERI Consulting Eng’rs, Inc. v. Swinnea.............................................. 1146
Eric M. v. Cajon Valley Union School
Dist........................................................ 646
Erick Bowman Remedy Co. v. Jensen Salsbery Labs.,
Inc............................... 961
Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak
St................... 1137
Erickson v. Jones St. Publishers, LLC.......................................................
957
Erickson v. Kongsli.................................. 256
Erickson v. U-Haul Int’l.................. 719, 720
Erie R.R. v. Tompkins........................ 46, 476
Ernest F. Loewer, Jr. Farms, Inc. v. National Bank of Arkansas.................
128
Ervin v. American Guardian Life Assurance
Co.......................................................... 499
ESCA Corp. v. KPMG Peat Marwick.............................................. 1131
Escola v. Coca Cola Bottling Co. of Fresno............................................. 22,
301
Eskin v. Bartee................................. 716, 717
Espinal v. Melville Snow Contractors,
Inc......................................................... 630
Espinoza v. Schulenburg................. 366, 611
Espinoza v. Thomas............................. 68, 71
Ess v. Eskaton Props., Inc....................... 718
Estelle v. Gamble..................... 584, 621, 645
Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc......................... 407, 408,
844
Estiverne, Estate of Desir ex rel. v. Vertus...................................................
639
Etherton v. Doe.......................................... 70
Ethyl Corp. v. Johnson............................ 265
Etkind v. Suarez.............................. 679, 680
eToll, Inc. v. Elias/Savion Adver., Inc.......................................................
1079
Ettlinger v. Trustees of Randolph-Macon
Coll........................................................ 597
ETW Corp. v. Jireh Publ’g, Inc.............. 1006
Euclid, Ohio, Village of v. Ambler Realty
Co.......................................................... 739
Eugene, City of v. McDermed.................. 914
Evans v. City of Bakersfield.................... 137
Evans v. Dayton Hudson......................... 720
Evans v. Dean Witter Reynolds, Inc..... 1153
Evans v. Lorillard Tobacco Co......... 809, 833
Evans v. State.......................................... 876
Evard v. Southern California Edison...... 769
Evridge v. American Honda Motor Co..........................................................
829
Ewing v. Northridge Hospital Medical
Center................................................... 659
Excavation Technologies, Inc. v. Columbia Gas Co. of Pa....... 1062, 1068,
1069, 1071, 1126
Excel Constr., Inc. v. HKM Eng’g, Inc.......................................................
1126
Exner v. Sherman Power Constr. Co...... 787
Express Scripts, Inc., PBM Litig., In re.....................................................
1144
Exxon Co., U.S.A. v. Sofec, Inc....... 371, 373, 374, 391
Exxon Mobil Corp. v. Albright................. 726
1234
Exxon Mobil Corp. v. Kinder Morgan Operating L.P......................................

121
Exxon Shipping Co. v. Baker......... 863, 864, 867, 870, 872
Ezell v. Cockrell....................... 564, 571, 574
Ezzell v. Miranne..................................... 399
Ezzo, Champion ex rel. v. Dunfee........... 651
F.A. v. W.J.F............................................ 973
F.F.P. Operating Partners, L.P. v. Duenez.......................................... 899,
900
F.G. v. MacDonell............................ 181, 455
Fabricor, Inc. v. E.I. DuPont de Nemours &
Co........................................................ 1102
Fabrikant v. French................................ 582
Fackrell v. Marshall................................ 759
Faegre & Benson LLP v. Purdy............ 1006
Fager v. Hundt........................................ 594
Fahrendorff v. North Homes, Inc........... 756
Faile v. South Carolina Dep’t of Juvenile Justice..........................................
576, 579
Fair Oaks Hosp. v. Pocrass....................... 73
Fair Price Med. Supply Corp. v. Travelers Indem.
Co............................................. 927
Fairbanks, City of v. Rice........................ 959
Fairchild v. Glenhaven Funeral Servs..... 16
Fairchild v. The California Stage Co...... 447
Fairfax Hosp. v. Curtis............................ 723
Faiveley Transport Malmo AB v. Wabtec
Corp.................................................... 1204
Falada v. Trinity Industries, Inc............ 844
Falcone v. Perry....................................... 857
Falk v. Sadler........................................ 1179
Falline v. GNLV Corp............................. 921
Falls v. Scott............................................ 768
Famology.Com Inc. v. Perot Systems Corp......................................................
111
Fancher v. Fagella................................... 736
Fandrey ex rel. Connell v. American Family Mut. Ins.
Co..................................... 3, 340
Fantozzi v. Sandusky Cement Prods. Corp......................................................
852
Farabaugh v. Pennsylvania Turnpike
Comm’n................................................ 604
Farias v. Mr. Heater, Inc........................ 830
Farley v. Engelken.................................. 861
Farley v. Sartin....................................... 671
Farm Bureau Ins. v. Phillips.......... 234, 236
Farm Bureau Mut. Ins. Co. of Ark., Inc. v.
Henley.............................................. 58, 87
Farm Bureau v. Cully’s Motorcross Park....................................................
1027
Farmer v. B & G Food Enters., Inc..... 605, 607, 609
Farmer v. Brennan............................ 60, 584
Farmers Educ. & Coop. Union of Am. v. WDAY,
Inc........................................... 965
Farmers Ins. Exchange v. State............. 160
Farnham v. Bombardier, Inc.................. 835
Farr v. NC Machinery Co........................ 352
Farrar v. Hobby....................................... 582
Farwell v. Boston & Worcester R.R........ 911
Farwell v. Keaton.................................... 621
Faul v. Jelco, Inc...................................... 758
Faust v. Albertson.................................... 296
Faverty v. McDonald’s Restaurants of Oregon,
Inc........................................... 637
Favreau v. Miller..................................... 491
Faya v. Almaraz....................................... 726
Fazzolari v. Portland School Dist. No. 1J....................................................
647
Fearing v. Bucher.................................... 762
Federal Deposit Insurance Corp. v. Meyer....................................................
551
Federal Ins. Co. I.C. v. Banco de Ponce..................................................... 124
Federal Ins. Co. v. Lazzara Yachts of N. Am.,
Inc............................................... 1084
Fedorczyk v. Caribbean Cruise Lines, Ltd.................................................
297, 316
Feeley v. Baer........................................... 519
Fehrman v. Smirl..................................... 302
Feiereisen v. Newpage Corp.................... 915
Fein v. Permanente Med. Group..... 496, 875
Feld v. Borkowski............................ 240, 425
Felder v. Physiotherapy Assocs............... 852
Feldman v. Allegheny Airlines, Inc......... 859
Feldman v. Feldman.............................. 1050
Feldman v. Gogos..................................... 427
Feller v. First Interstate Bancsystem,
Inc......................................................... 714
Fellner v. Tri-Union Seafoods, LLC........ 844
Fellows v. National Enquirer, Inc......... 1021
Felsen v. Sol Cafe Mfg. Corp................. 1104
Feltch v. General Rental Co.................... 720
Feltmeier v. Feltmeier............................. 435
Felton v. Lovett................ 494, 514, 517, 519
FEMA Trailer Formaldehyde Products Liability Litigation (Mississippi
Plaintiffs), In re.................................... 552
Fennell v. Southern Md. Hosp. Ctr., Inc.........................................................
331
Ferdon v. Wisconsin Patients Comp. Fund......................................................
875
Ferebee v. Chevron Chem. Co................. 833
Feres v. United States..................... 558, 561
Ferguson v. City of Chicago................... 1035
Ferguson v. Lieff, Cabraser, Heimann & Bernstein,
LLP................................... 1185
Fermino v. Fedco.............................. 922, 923
Fernandez v. Kozar.................................. 697
Fernandez v. Romo.................................. 592
Fernandez v. Walgreen Hastings Co...... 716, 719
Ferrara v. Galluchio......................... 725, 856
Ferreira v. D’Asaro.................................. 784
Ferrell v. Baxter............................... 249, 251
Ferri v. Ackerman.......................... 581, 1191
Ferriter v. Daniel O’Connell’s Sons, Inc.........................................................
719
Fetick v. American Cyanamid Co............ 728
FGA, Inc. v. Giglio.................................... 469
Fiacco v. Sigma Alpha Epsilon Fraternity............................................. 992
Fiala v. Rains........................................... 621
1235
Ficek v. Morken....................................... 572

Field v. Boyer Co..................................... 888
Field v. Empire Case Goods Co............... 800
Field v. Mans............................... 1131, 1132
Field v. Philadelphia Elec. Co................... 67
Fielder v. Stonack.................................... 287
Fields v. Dailey........................................ 134
Fields v. Henrich..................................... 477
Fields v. Senior Citizens Ctr., Inc........... 392
Fields v. State.......................................... 140
Fieux v. Cardiovascular & Thoracic Clinic,
P.C........................................................ 302
Fifield Manor v. Finston....................... 1066
Fifth Club, Inc. v. Ramirez..................... 764
Figueiredo-Torres v. Nickel.................. 1052
Fike v. Peace............................................ 767
Fikes v. Furst.................... 1096, 1098, 1100, 1101, 1104, 1109
Filip v. Block.......................................... 1074
Finan v. Atria East Associates............... 469
Finch v. Christensen............................... 217
Finch v. Inspectech, LLC........................ 414
Finck v. City of Tea......................... 947, 960
Finderne Mgmt. Co., Inc. v. Barrett..... 1138
Fine Host Corp. Sec. Litig..................... 1125
Fink v. City of New York......................... 223
Finnegan ex rel. Skoglind v. Wis. Patients Comp.
Fund.......................................... 716
Fiocco v. Carver....................................... 760
Fiorenzano v. Lima.................................. 720
Fire Ins. Exch. v. Diehl........................... 233
Fireman’s Fund Ins. Co. v. SEC Donohue,
Inc....................................................... 1081
First Arkansas Bank & Trust, Trustee v. Gill Elrod Ragon Owen &
Sherman, P.A...................................................... 1175
First Assembly of God, Inc. v. Tex. Utils. Elec.
Co................................................. 218
First Fla. Bank, N.A. v. Max Mitchell &
Co........................................................ 1135
First Interstate Bank of Gallup v. Foutz..................................................
1140
First Midwest Bank v. Stewart Title Guar. Co..............................................
1074, 1086
First Nat’l Bank and Trust Corp. v. American Eurocopter Corp..................
832
First Nat’l Bank of Ariz. v. Dupree........ 233, 234
First Nat’l Bank of Dwight v. Regent Sports
Corp...................................................... 829
First Nat’l Bank of Pulaski, Tenn. v. Thomas.................................................
862
First Valley Bank of Los Fresnos v. Martin...................................... 1028,
1033
First Wyo. Bank, Casper v. Mudge....... 1098
Firth v. Scherzberg.................................. 742
Fischer v. Unipac Serv. Corp.................. 964
Fisher Bros. Sales, Inc. v. United States................................................... 554
Fisher v. Big Y Foods, Inc....................... 469
Fisher v. Carrousel Motor Hotel, Inc........ 68
Fisher v. Kahler..................................... 1125
Fisher v. San Pedro Peninsula Hosp....... 710
Fisher v. Swift Transp. Co............... 347, 348
Fisher v. Townsends, Inc......... 764, 765, 766
Fishman v. Brooks................................. 1169
Fisk v. City of Kirkland................... 566, 574
Fitch v. Valentine................................... 1051
Fitts v. Arms............................................ 510
Fitzmaurice v. Flynn................................ 509
Fitzpatrick v. Natter........................ 296, 518
Flagler Company v. Savage..................... 467
Flagstaff Affordable Housing Ltd. P’ship v. Design Alliance, Inc...... 1062,
1070, 1086, 1112
Flagstaff, City of v. Atchison, Topeka & Santa Fe
Ry.......................................... 745
Flake v. Greensboro News Co................ 1005
Flamm v. American Ass’n of Univ. Women..................................................
996
Flamm, King v.......................................... 504
Flanagan v. Flanagan............................ 1010
Flanagan v. McLane................................ 973
Flatley v. Mauro....................................... 986
Flatt v. Kantak......................................... 517
Flax v. DaimlerChrysler Corp......... 724, 862
Flax v. Schertler..................................... 1171
Fleckner v. Dionne................................... 371
Fleetwood Enters., Inc. v. Progressive N. Ins. Co.........................................
803, 1065
Fleetwood Retail Corp. of New Mexico v. LeDoux............................ 1028,
1040, 1047
Fleishman v. Eli Lilly & Co..................... 435
Fletcher v. City of Independence............. 734
Fletcher v. Dorchester Mutual Ins. Co........................................................
1157
Fletcher v. South Peninsula Hosp........... 771
Flint Hills Rural Elec. Coop. Ass’n v. Federated Rural Elec. Ins.
Corp.......... 864
Flizack v. Good News Home for Women,
Inc......................................................... 707
Flood Litigation, In re.............................. 787
Florence v. Goldberg........ 286, 287, 571, 624
Florenzano v. Olson............................... 1121
Flores v. Cameron County, Tex............... 588
Flores v. Exprezit! Stores 98-Georgia,
LLC....................................................... 662
Florida Dep’t of Corr. v. Abril.................. 722
Florida Dep’t of Health & Rehab. Servs. v.
S.A.P............................................. 438, 439
Florida Evergreen Foliage v. E.I. DuPont De Nemours &
Co................................. 968
Florida Farm Bureau Casualty Ins. Co. v.
Patterson.............................................. 126
Florida Publishing Co. v. Fletcher.......... 169
Florida Star v. B.J.F.............................. 1018
Florida v. Jones........................................ 153
Flower v. Adam........................................ 192
Flowers v. Carville................................. 1019
Flowers v. District of Columbia............... 683
Flowers v. Rock Creek Terrace Ltd. P’ship............................ 607, 609, 610,
613
Flugge v. Flugge..................................... 1040
Flynn v. United States............................. 557
1236
Fochtman v. Honolulu Police and Fire

Departments........................................ 623
Foddrill v. Crane............................. 296, 326
Foggia v. Des Moines Bowl-O-Mat, Inc.........................................................
323
Foldi v. Jeffries........................................ 594
Foley v. Argosy Gaming Co................... 1041
Foley v. Harris......................................... 743
Foley v. Polaroid Corp............................. 922
Folz v. State............................................. 723
Fontaine v. Roman Catholic Church of Archdiocese of New
Orleans................ 180
Fontenot v. Patterson Ins....................... 894
Food Lion, Inc. v. Capital Cities/ABC,
Inc......................................................... 177
Food Pageant, Inc. v. Consol. Edison Co.,
Inc......................................................... 240
Foot and Reynolds v. Wiswall................. 193
Foot v. Card........................................... 1050
Foote v. Albany Med. Ctr. Hosp.............. 681
Foote v. Simek......................................... 341
Foradori v. Harris.................................... 855
Ford Motor Co. v. Boomer....................... 832
Ford Motor Co. v. Gibson........................ 832
Ford Motor Co. v. Reed............................ 811
Ford Motor Co. v. Rushford............ 827, 828
Ford Motor Credit Co. v. Byrd................ 116
Ford Motor Credit Co. v. Hickey Ford Sales,
Inc....................................................... 1026
Ford v. Revlon, Inc...................... 69, 72, 710
Ford v. Trident Fisheries Co................... 318
Fordham v. Oldroyd................................ 605
Foreign Car Ctr., Inc. v. Essex Process Serv.
Inc................................................. 115, 125
Foreman v. AS Mid-America, Inc......... 1122
Foreman v. Callahan............................... 924
Foremost Farms USA Co-op. v. Performance Process, Inc.................. 1082
Foremost Ins. Co. v. Parham................ 1131
Forest Laboratories, Inc. v. Pillsbury Co........................................................
1205
Foretich v. Capital Cities/ABC, Inc........ 975
Forma Scientific, Inc. v. Biosera, Inc...... 823
Formento v. Encanto Bus. Park............ 1136
Forminio v. City of New York................. 452
Forrester v. White........................... 578, 967
Forsythe v. Clark USA, Inc..................... 204
Fort Smith, City of v. Brooks.................. 917
Fortin v. The Roman Catholic Bishop of
Portland............................................... 456
Foshee v. Southern Finance & Thrift Corp....................................................
1034
Foss v. Kincade......... 239, 280, 345, 474, 477
Foss v. Kincaid........................................ 280
Fossett v. Davis..................................... 1108
Foster v. Churchill......................... 944, 1096
Foster v. City of Keyser................... 307, 788
Foster v. Costco Wholesale Corp............ 471
Foster v. Preston Mill Co........................ 792
Fotos v. Firemen’s Ins. Co. of Washington,
D.C................................................ 117, 118
Fouldes v. Willoughby............................. 105
Four R Cattle Co. v. Mullins................. 1121
Fowle v. Fowle........................................ 1041
Fowler v. Key System Transit Lines....... 286
Fowler v. United States................... 552, 580
Fox v. City & Cty. of San Francisco....... 213, 226
Fox v. Ethicon Endo-Surgery, Inc........... 430
Fox v. Ford Motor Co............................... 840
Fox v. Smith............................................. 513
Fox v. Warner-Quinlan Asphalt Co......... 144
Fox v. White........................................... 1167
Fox v. Wills............................................. 1179
Fraguglia v. Sala...................................... 132
Frain v. State Farm Ins. Co..................... 654
Francis v. Gallo........................................ 966
Franco v. Bunyard................................... 252
Franklin Corp. v. Tedford........................ 240
Franklin Grove Corp. v. Drexel............ 1069, 1083
Franklin v. Hill...................................... 1056
Franks v. Independent Prod. Co., Inc................................................. 605,
774
Fraser v. Park Newspapers of St. Lawrence
Inc......................................................... 957
Frazier ex rel. Frazier v. Norton..... 172, 233
Frazier v. Commonwealth....................... 221
Fred Siegel Co., L.P.A. v. Arter & Hadden................. 1095, 1096, 1097,
1104
Frederick v. Philadelphia Rapid Transit Co..................................................
460, 461
Fredericks v. Castora............................... 231
Freeman & Mills, Inc. v. Belcher Oil Co........................................................
1146
Freeman v. Davidson............................... 689
Freeman v. Grain Processing Corp......... 733
Freeway Park Buildings, Inc. v. Western States Wholesale
Supply...................... 149
Freightliner Corp. v. Myrick................... 846
Freihofer v. Hearst Corp....................... 1007, 1018, 1111
French Energy, Inc. v. Alexander......... 1128
French v. Jadon, Inc................................ 959
French v. Sunburst Properties................ 462
French-Tex Cleaners, Inc. v. Cafaro Co..........................................................
128
Fresco v. 157 East 72nd Street Condominium....................................... 267
Fresno Traction Co. v. Atchison, T. & S. F.
Ry.......................................................... 245
Frey v. Kouf.................................... 56, 58, 61
Friederichs v. Huebner............................ 400
Friedman v. C & S Car Servs.................. 859
Friedman v. Dozorc............ 1037, 1041, 1176
Friedman v. Friedman........................... 1054
Friedman v. Merck & Co......................... 727
Friedrich v. Fetterman & Assocs., P.A.........................................................
317
Frieler v. Carlson Marketing Group, Inc......................................... 757, 761,
762
Friend v. Cove Methodist Church, Inc.........................................................
599
1237
Friends For All Children, Inc. v. Lockheed Aircraft

Corp........................................ 854
Friends of Animals, Inc. v. Associated Fur Mfrs.,
Inc.............................................. 993
Friends of Yelverton, Inc. v. 163rd Street Improvement Council,
Inc................... 150
Frinzi v. Hanson...................... 943, 944, 948
Frisch, Matter of Estate of...................... 172
Friske v. Hogan..................................... 1175
Friter v. Iolab Corp.................................. 514
Fritts v. McKinne.................................... 395
Froelich v. Adair.................................... 1011
Frohs v. Greene....................................... 430
Fromson v. State................................... 1111
Frontier Ins. Co. v. Blaty........................ 693
Frost v. Allred.......................... 249, 251, 258
Frost v. Salter Path Fire & Rescue......... 914
Frugis v. Bracigliano............... 898, 899, 900
Fruit v. Schreiner.................................... 756
Fruiterman v. Granata........................... 678
Fry v. Carter............................................ 221
Frye v. Clark County............................... 574
Fu v. State....................................... 209, 214
Fuchsgruber v. Custom Accessories, Inc......................................... 803, 835,
885
Fuentes v. Shevin.................................... 127
Fuerschbach v. Southwest Airlines Co......................................... 58, 73, 74,
164
Fujimoto v. Au......................................... 411
Fuller Family Holdings, LLC v. Northern Trust
Co............................................. 1160
Fuller v. Local Union No. 106, United Broth. of Carpenters and Joiners of
America.............................................. 1043
Fuller v. Standard Stations, Inc............. 654
Fuller v. Tucker....................................... 431
Fulmer v. Timber Inn Restaurant and Lounge, Inc...................................
473, 663
Fultz v. Delhaize Am., Inc....................... 292
Fuqua v. Aetna Cas. & Sur. Co............... 852
Furman v. Rural Elec. Co....................... 215
Furstein v. Hill........................................ 463
Furumizo, United States v...................... 690
Fyssakis v. Knight Equipment Corp...... 829
G.D. v. Kenny.......................................... 955
G.J. Leasing Co., Inc. v. Union Elec. Co.......................................... 783, 788,
789
Gabaldon v. Jay-Bi Property Mgmt., Inc.........................................................
716
Gaboury v. Ireland Road Grace Brethern,
Inc......................................................... 460
Gadsden, Ex parte City of..................... 1031
Gaertner v. Holcka.................................. 408
Gagan v. Yast.......................................... 976
Gagnon v. State....................................... 570
Gaidys, United States v.................... 94, 562
Gaines v. Comanche Cnty. Med. Hosp............................................. 512, 539
Gaita v. Laurel Grove Cemetery Co....... 466
Galaxy Cable, Inc. v. Davis..................... 862
Galindo v. TMT Transp., Inc................... 226
Galindo v. Town of Clarkstown.............. 484
Gallagher v. H.V. Pierhomes, LLC.......... 787
Gallara v. Koskovich................................ 364
Gallo v. Alitalia-Linee Aeree Italiane-Societa per
Azioni................................. 960
Gallo, People v.......................................... 744
Galloway v. State............................. 249, 414
Galvao v. G.R. Robert Const. Co............. 773
Galveston, H. & S.A. Ry. v. Zantzinger............................................ 398
Galvez v. Frields.............................. 677, 678
Gamble v. Dollar Gen. Corp.................... 711
Ganim v. Smith & Wesson Corp............ 1066
Gannon, Borns ex rel. v. Voss.................. 781
Ganz v. United States Cycling Fed’n...... 287
Garback v. Lossing................................. 1008
Garcia v. City of New York...................... 647
Garcia v. City of South Tucson................ 610
Garcia v. Hargrove................................... 251
Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C.........................................
1174
Garcia v. Lifemark Hospitals of Fla........ 497
Garcia v. Sanchez....................................... 95
Garcia v. Sumrall..................................... 779
Garcia v. Whitaker................................. 1036
Gardner v. National Bulk Carriers, Inc................................................. 328,
621
Garhart v. Columbia/Healthone, LLC.... 875
Garland v. Roy....................................... 1183
Garnes v. Fleming Landfill, Inc.............. 865
Garnot v. Johnson.................................... 299
Garnsey v. Morbark Indus., Inc...... 817, 824
Garofolo v. Fairview Park...................... 1013
Garr v. City of Ottumwa.......................... 317
Garratt v. Dailey............................ 56, 68, 82
Garreans v. City of Omaha...................... 479
Garrison v. Deschutes County................. 564
Garrison v. Sun Printing & Publ’g Ass’n......................................................
999
Gartrell v. Department of Corr............... 916
Garvin, Guardianship of v. Tupelo Furniture Market, Inc..........................
654
Garweth Corp. v. Boston Edison Co...... 1067
Gaspard v. Beadle.................................... 708
Gaston v. Viclo Realty Co........................ 293
Gates of the Mountains Lakeshore Homes, Inc., United States
v............................... 93
Gates v. Discovery Commc’ns, Inc........ 1005, 1017
Gates v. Navy........................................... 399
Gates v. Richardson................................. 723
Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting,
Inc................... 858
Gath v. M/A-Com, Inc.................. 1157, 1158
Gattis v. Kilgo.................................. 975, 980
Gau v. Smitty’s Super Valu, Inc.............. 155
Gaubert, United States v......... 554, 555, 556
Gaudio v. Ford Motor Co......................... 408
Gaudreau v. Clinton Irrigation Dist....... 268
Gaulding v. Celotex Corp......................... 329
Gautschi v. Maisel................................... 976
Gauvin v. Clark........................................ 424
1238
Gavin W. v. YMCA of Metro. Los Angeles................................................. 413

Gawloski v. Miller Brewing Co............... 841
Gaylor v. Jeffco...................................... 1188
Gaytan v. Wal-Mart................................ 764
Gazette, Inc. v. Harris................... 952, 1000
Gazo v. City of Stamford......... 628, 630, 766
Gebhardt v. O’Rourke........................... 1188
Geddes v. Daughters of Charity of St. Vincent de Paul,
Inc.............................. 74
Geddes v. Mill Creek Country Club, Inc.........................................................
419
Geernaert v. Mitchell............................ 1134
Geier v. American Honda Motor Co....... 846
General Elec. Co. v. Moritz............. 471, 604
General Elec. Co. v. Sargent & Lundy... 974
General Motors Corp. v. Alumi-Bunk, Inc.......................................................
1078
General Motors Corp. v. Saenz............... 829
General Motors Corp. v. Sanchez... 836, 837
General Motors Corp. v. Wolhar..... 373, 841
General Refractories Co. v. Fireman’s Fund Ins. Co................... 1042, 1043,
1044, 1045
Genereux v. Am. Beryllia Corp............... 430
Gennari v. Weichert Co. Realtors........ 1130, 1131
Genrich, Estate of v. OHIC Ins. Co........ 697
Gentry v. Craycraft......................... 425, 426
Genzel v. Halvorson.................................. 63
George F. Hillenbrand, Inc. v. Insurance Co. of North
America......................... 1037
George v. Estate of Baker....................... 450
George v. University of Idaho................. 648
Georgia Pacific, LLC v. Farrar............... 826
Gerdau Ameristeel, Inc. v. Ratliff........... 430
Gerill Corp. v. Jack L. Hargrove Builders,
Inc....................................................... 1140
Gertz v. Robert Welch, Inc................ 46, 990
Getchell v. Lodge..................................... 247
Getchell v. Rogers Jewelry...................... 469
Get-N-Go, Inc. v. Markins....................... 417
Ghassemieh v. Scafer................................ 59
Giacalone v. Housing Authority of Town of
Wallingford.......................................... 656
Giacona v. Tapley.................................... 475
Giancarlo v. Karabanowski..................... 260
Giant Food, Inc. v. Mitchell.................... 268
Giardina v. Bennett................................. 670
Gibb v. Stetson........................................ 606
Gibson v. Abbott...................................... 969
Gibson v. Capano................................... 1128
Gibson v. County of Washoe, Nevada..... 355
Gibson v. Garcia...................................... 360
Gibson v. Gibson............................ 594, 1117
Gibson v. Regions Financial Corp......... 1046
Gibson v. State...................................... 1030
Giddings & Lewis, Inc. v. Industrial Risk
Insurers................................................ 803
Giese v. NCNB Texas Forney Banking
Center................................................... 152
Giggers v. Memphis Hous. Auth............ 204, 205, 569
Gignilliat v. Gignilliat, Savitz & Bettis,
LLP..................................................... 1006
Gilbert v. Miodovnik................................ 498
Gilbert v. Sykes...................................... 1091
Gilbert Wheeler, Inc. v. Enbridge Piplelines (East Texas),
L.P.................................... 97
Gilchrist v. City of Troy........................... 422
Giles v. City of New Haven...................... 307
Giles v. General Motors Acceptance Corp................................. 1154, 1156,
1157
Giles v. Hill Lewis Marce....................... 1045
Gilhooley v. Star Mkt. Co., Inc................ 268
Gillespie, Application of............................. 96
Gilliam v. Roche Biomedical Labs., Inc.........................................................
725
Gillikin v. Bell.......................................... 954
Gillmor v. Salt Lake City......................... 161
Gilmer v. Ellington.................................. 636
Gilmore v. Acme Taxi Co......................... 763
Gilmore v. Shell Oil Co............................ 346
Gilmore v. Walgreen Co........................... 472
Gilson v. Drees Bros................................. 418
Gilson v. Metropolitan Opera.......... 285, 618
Gina Chin & Assoc. v. First Union Bank......................................................
757
Ginsberg v. Wineman.............................. 490
Gipson v. Kasey....................... 204, 205, 207, 211, 212, 244
Giraldo v. California Dep’t of Corrections and
Rehabilitation................................ 645
Giron v. Koktavy.................................... 1172
Gist v. Macon County Sheriff’s Dept....... 978
Giuliani v. Guiler..................................... 719
Giunta v. Delta Intern. Machinery......... 815
Givens v. Mullikin.................................. 1046
Gladhart v. Oregon Vineyard Supply Co..........................................................
847
Gladon v. Greater Cleveland Regional Transit Auth.................................
460, 467
Glamann v. St. Paul Fire & Marine Ins.
Co........................................................ 1184
Glamorgan Coal Company, Limited, and Others v. South Wales Miners’
Federation and Others....................... 1095
Glanzer v. Shepard...................... 1124, 1125
Glaskox v. Glaskox................................... 593
Glass v. Hazen Confectionery Co............ 911
Glaze v. Larsen............................ 1187, 1190
Gleason v. Peters..................................... 571
Gleason v. Smolinski................................ 708
Gleeson v. Virginia Midland Ry. Co........ 448
Gleitman v. Cosgrove............................... 678
Glidden v. Szybiak................................... 106
Glittenberg v. Doughboy Recreational
Industries............................................. 827
Glona v. American Guarantee & Liab. Ins.
Co.......................................................... 695
Glotzbach v. Froman.............................. 1159
Glover v. Boy Scouts of America............. 757
Glover v. Callahan................................... 172
Glover v. Jackson State University........ 322, 363
1239
Gmurzynska v. Hutton.......................... 1200

Gobin v. Globe Pub. Co.................. 996, 1001
Godbehere v. Phoenix Newspapers, Inc.......................................................
1021
Goddard v. Farmers Ins. Co. of Or......... 869
Godesky v. Provo City Corp.................... 376
Godfrey v. Iverson..................................... 36
Godwin v. Memorial Medical Center...... 532
Goff v. Clarke....................................... 62, 64
Goff v. Elmo Greer & Sons Constr. Co.,
Inc......................................................... 870
Gohari v. Darvish............................ 975, 976
Goldberg v. Florida Power & Light Co.......................................... 338, 353,
365
Goldberg v. Horowitz............................... 505
Golden Peanut Co., LLC, In re............... 694
Golden, State ex rel. v. Kaufman.......... 1052
Goldizen v. Grant County Nursing Home....................................................
686
Goldnamer v. O’Brien.............................. 183
Goldstein v. Levy..................................... 301
Goldstein v. Lustig................................ 1179
Goldstein v. Sabella............................... 1038
Golen v. Union Corp., U.C.O.-M.B.A., Inc.................................................
742, 744
Golla v. General Motors Corp................. 847
Goller v. White......................................... 594
Gomez v. Superior Court......... 447, 448, 450
Gompper v. Visz, Inc............................. 1119
Gonsalves v. Nissan Motor Corp. in Haw.,
Ltd........................................................ 943
Gonzales v. Mascarenas.......................... 670
Gonzalez v. City of Elgin......................... 585
Gonzalez v. Poplawsky............................ 314
Gonzalez v. Sessom................................. 952
Gooch v. Bethel A.M.E. Church.............. 631
Gooden v. City of Talladega............ 270, 575
Gooden v. Coors Technical Ceramic Co..........................................................
914
Goodfellow v. Coggburn.......................... 236
Gooding v. University Hosp. Bldg., Inc.........................................................
331
Goodrich v. Blair..................................... 225
Goodrich v. Long Island R.R. Co..... 707, 715
Goodwin v. Jackson................................. 475
Goodyear Tire & Rubber Co. v. Hughes Supply,
Inc........................................... 303
Gorab v. Zook........................................... 516
Gordon v. Bank of N.Y. Mellon Corp...... 709
Gordon v. Eastern Ry. Supply, Inc......... 401
Gordon v. Sanders........................... 768, 769
Gordon v. Villegas..................................... 74
Gordy, Matter of.............................. 172, 174
Gore v. People’s Sav. Bank.............. 257, 492
Gore v. Rains & Block........................... 1183
Gorman v. Abbott Labs........................... 330
Gorman v. Sabo....................................... 749
Gorski v. Smith............................ 1146, 1178
Gortarez v. Smitty’s Super Valu, Inc..... 133, 137, 151, 153, 154, 156
Gosden v. Louis............................... 957, 960
Gosewisch v. American Honda Motor
Co.......................................................... 833
Gosnell Dev. Corp. of Ariz., In re.......... 1077
Goss v. Allen............................................. 236
Gossels v. Fleet Nat’l Bank......... 1123, 1154
Gossett v. Jackson.................................... 214
Gossner v. Utah Power & Light.............. 789
Gottschalk v. Benson................... 1202, 1203
Goudrealt v. Kleeman.............................. 314
Gouge v. Central Illinois Public Service
Co.......................................................... 487
Gouin v. Gouin........................................... 72
Gould v. American Family Mut. Ins. Co..........................................................
420
Gourley v. Nebraska Methodist Health Sys.,
Inc......................................................... 875
Gouse v. Cassel........................................ 163
Gouveia v. Phillips................................... 514
Governmental Liability from Operation of
Zoo......................................................... 782
Grabenstein v. Sunsted........................... 139
Graber v. City of Ankeny......................... 569
Graber v. City of Peoria........................... 734
Grace v. Kumalaa.................................... 450
Gracey v. Eaker...................................... 1143
Graeff v. Baptist Temple of Springfield............................................ 855
Graff v. Motta......................................... 1093
Graff v. Robert M. Swendra Agency, Inc.......................................................
1074
Grager v. Schudar............................ 178, 708
Gragg v. Calandra.................................... 514
Graham v. Connor............................ 583, 584
Graham v. Keuchel.......................... 353, 676
Graham v. Sheriff v. Logan County........ 178
Grambling, Godoy ex rel. v. E.I. DuPont de Nemours and
Co........................... 809, 821
Gramlich v. Wurst........................... 144, 146
Grammer v. John J. Kane Regional Centers-Glen Hazel...................... 545,
583
Grand Aerie Fraternal Order of Eagles v.
Carneyhan............................................ 658
Grannum v. Berard.................................. 171
Grant v. Allen........................................... 158
Grant v. American Nat’l Red Cross......... 331
Grant v. Nihill.......................................... 416
Grant v. Reader’s Digest Ass’n, Inc......... 946
Grant v. South Roxana Dad’s Club......... 474
Grant v. Thornton.................................... 244
Grantham v. Vanderzyl........................... 711
Graubard Mollen Dannett & Horowitz v.
Moskovitz............................................ 1176
Gravel v. United States........................... 968
Graves v. Estabrook......................... 717, 721
Graves, Estate of v. City of Circleville....................................... 241, 571
Gray v. Badger Mining Corp........... 828, 829
Gray v. Manitowoc Co., Inc...................... 814
Gray v. State.......................................... 1030
Gray v. Westinghouse Elec. Corp............ 743
Grayson v. Wofsey, Rosen, Kweskin and
Kuriansky........................................... 1182
1240
Great American E & S Ins. Co. v. Quintairos, Prieto, Wood & Boyer,
P.A...................................................... 1166
Great Atlantic & Pacific Tea Co. v. Paul......................................................
153
Great Coastal Express, Inc. v. Ellington............................................... 973
Great Escape, Inc. v. Union City Body Co.,
Inc....................................................... 1108
Great Lakes Higher Education Corp. v. Austin Bank of
Chicago..................... 1152
Great Sw. Fire Ins. Co. v. CNA Ins. Cos......................................................
1112
Greater Richmond Transit Co. v. Wilkerson............................................. 447
Greaves v. Galchutt................................. 415
Greco v. Sumner Tavern, Inc.................. 638
Green Acres Trust v. London......... 966, 977, 981
Green Bay Packaging, Inc. v. Preferred Packaging, Inc..........................
1037, 1092
Green, In re Estate of............................ 1144
Green v. Alpharma.................................. 313
Green v. Bittner....................................... 692
Green v. CBS Inc........................... 980, 1013
Green v. Edmands Co.............................. 835
Green v. Ford Motor Co................... 407, 840
Green v. General Motors Corp................ 859
Green v. General Petroleum Corp........... 88, 787
Green v. Lewis Truck Lines.................... 435
Green v. Mid Dakota Clinic.................... 419
Green v. N.B.S......................................... 873
Green v. Racing Ass’n of Cent. Iowa.... 1095, 1097, 1104, 1105
Green v. Smith & Nephew AHP, Inc..... 803, 825
Green v. Spinning............................ 735, 742
Green v. Superior Court.......................... 491
Green v. Walker....................................... 499
Greenbelt Coop. Publ’g Ass’n v. Bresler.......................................... 977, 989
Greenberg v. Giddings............................ 214
Greenberg v. Perkins............................... 499
Greenberg v. Wolfberg.......................... 1041
Greenberg, Trager & Herbst, LLP v. HSBC Bank
USA.......................................... 1130
Greene v. Tinker...................................... 960
Greenman v. Yuba Power Prods., Inc............................................... 801,
1070
Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc.....................................
938
Greenpeace, Inc. v. Dow Chemical Co...... 91
Greensleeves, Inc. v. Smiley....... 1096, 1098
Greenwich Citizens Comm., Inc. v. Counties of Warren and Washington
Indus. Dev. Agency................................................ 1032
Gregoire v. City of Oak Harbor............... 395
Gregor v. Argenot Great Central Ins.
Co.......................................................... 579
Gregory v. Carey...................................... 856
Gregory v. Clive....................................... 572
Gregory v. Cott................................. 226, 420
Gregory v. Hawkins............................... 1172
Gregory v. Johnson.................................. 477
Gregory’s Inc. v. Haan............................. 974
Gresham v. Taylor................................... 778
Grey’s Ex’r v. Mobile Trade Co................ 252
Greycas, Inc. v. Proud........... 279, 394, 1131, 1170
Greyhound Lines, Inc. v. Cobb County,
Ga.......................................................... 882
Gribben v. Wal-Mart Stores, Inc........... 1157
Griebler v. Doughboy Recreational, Inc........... 470
Griego v. Wilson....................................... 139
Griesenbeck v. Walker............................. 663
Griesi v. Atlantic Gen. Hosp. Corp......... 209, 1125
Griffin v. Moseley..................................... 516
Griffis v. Wheeler..................................... 696
Griglione v. Martin.................................. 244
Grimes v. Kennedy Krieger Inst., Inc................................. 174, 244, 252,
623
Grimm v. Ariz. Bd. of Pardons & Paroles.......................................... 241, 576
Grimshaw v. Ford Motor Co............ 276, 818
Grisham v. Philip Morris U.S.A., Inc...... 431
Griva v. Davison..................................... 1169
Grivas v. Grivas....................................... 594
Groch v. General Motors Corp................. 848
Grodin v. Grodin...................................... 675
Groenevelt Transport Efficiency, Inc. v. Lubecore Intern.,
Inc.......................... 1201
Grolean v. Bjornson Oil Co...................... 471
Groob v. KeyBank.................................. 1143
Groshek v. Trewin............................ 869, 870
Gross v. Capital Elec. Line Builders, Inc................................................... 86,
189
Gross v. Lyons.......................................... 880
Gross v. Sussex Inc...................... 1121, 1132
Grosso v. Monfalcone, Inc........................ 119
Grotts v. Zahner....................................... 717
Grove v. PeaceHealth St. Joseph’s Hospital................................................
530
Grover v. Eli Lilly & Co........................... 676
Groves v. Taylor............................... 716, 717
Grubbs v. Barbourville Family Health Ctr.,
P.S.C..................................................... 679
Grube v. Daun.......................... 787, 788, 789
Grube v. Union Pac. R.R.......................... 715
Gruenberg v. Aetna Ins. Co................... 1147
Grunwald v. Bronkesh............................. 430
Grynberg v. Questar Pipeline Co........... 122, 1078, 1156
Grzanka v. Pfeifer.................................... 819
GTE Sw., Inc. v. Bruce............................. 706
Guaranty Residential Lending, Inc. v. International Mortgage Ctr., Inc......
1074, 1075
Guarascio v. Drake Associates Inc.......... 821
Gubbins v. Hurson................................... 304
Guccione v. Hustler Magazine, Inc......... 956
Guess v. Sharp Mfg. Co. of Am................ 917
Guest v. McLaverty................................ 1181
1241
Guillory v. Interstate Gas Station.......... 915

Guinan v. Famous Players-Lasky Corp......................................................
249
Guinn v. Murray.................................... 1181
Guldy v. Pyramid Corp............................ 283
Gulfstream Aerospace Servs. Corp. v. United States Aviation
Underwriters, Inc............................................. 1078, 1085
Gulycz v. Stop and Shop Companies...... 470
Gunderson v. Harrington........................ 919
Gunkel v. Renovations, Inc..................... 804
Gunnell v. Arizona Public Service Co.................................................. 375,
376
Gunsberg v. Roseland Corp..................... 960
Gus’ Catering, Inc. v. Menusoft Sys..... 1079
Gustafson v. Payless Drug Stores Northwest, Inc...................................
1029
Guste v. M/V Testbank, Louisiana ex rel.v.....................................................
1068
Guth v. Freeland............................. 704, 729
Gutierrez de Martinez v. Drug Enforcement
Admin........................................... 759, 760
Gutierrez de Martinez v. Lamagno........ 580
Guzman v. County of Monterey.............. 564
Gypsum Carrier, Inc. v. Handelsman.... 859
H. Russell Taylor’s Fire Prevention Serv., Inc. v. Coca Cola Bottling
Corp........... 128
H.J., Inc. v. International Telephone & Telegraph Corp..........................
111, 1151
H.R. Moch Co. v. Rensselaer Water Co.................................................. 619,
628
H.R.B. v. J.L.G......................................... 457
H.R.H. Metals, Inc. v. Miller................... 415
Haas, State v................................... 137, 141
Habco v. L & B Oilfield Serv., Inc........... 882
Haberer v. Rice...................................... 1185
Habershaw v. Michaels Stores, Inc....... 293, 294, 297
Hac v. University of Haw........................ 707
Hack v. Gillespie...................................... 607
Hackbart v. Cincinnati Bengals, Inc...... 424
Haddix v. Playtex Family Products Corp......................................................
813
Haddock v. City of New York.................. 658
Hadfield v. Gilchrist................................ 119
Hafer v. Melo........................................... 586
Haff v. Hettich......................................... 887
Haft v. Lone Palm Hotel......... 244, 245, 327
Hagan v. Coca-Cola Bottling Co............. 722
Hagans v. Franklin County Sheriff’s Office....................................................
584
Hagberg v. California Fed. Bank FSB..... 79, 966
Hagen v. Faherty..................................... 438
Hagenow v. Schmidt........................ 219, 259
Hager v. City of Devils Lake................... 749
Hagerty v. L & L Marine Servs., Inc..... 334, 440, 854
Hagler v. Coastal Farm Holdings, Inc.........................................................
304
Hagler v. Proctor & Gamble Mfg. Co...... 983
Hailey v. Otis Elevator Co...................... 301
Hailstone v. Martinez.............................. 982
Hairston v. Alexander Tank and Equipment
Co.......................................................... 370
Hairston v. General Pipeline Const., Inc.........................................................
248
Halberstadt v. New York Life Ins. Co........................................................
1034
Hale v. Beckstead..................... 419, 471, 603
Hale v. Brown................................... 346, 371
Hale v. George A. Hormel & Co............. 1123
Hale v. Groce.......................................... 1175
Hale v. Ostrow......................... 316, 318, 484
Hale v. Ward County............................... 745
Haley v. Casa Del Rey Homeowners Ass’n......................................................
941
Hall v. Bed Bath & Beyond, Inc............ 1200
Hall v. Bergman....................................... 724
Hall v. Board of Supervisors Southern
University............................................. 648
Hall v. Chicago & Nw. Ry. Co.................. 861
Hall v. Dartmouth Hitchcock Med. Ctr................................................. 679,
683
Hall v. Lovell Regency Homes Ltd. P’ship..................................................
1140
Hall v. Polk....................................... 745, 746
Hall v. Post............................................. 1018
Hall v. Rogers........................................... 992
Hall v. United Parcel Serv. of Am., Inc.........................................................
936
Hall, Estate of v. Akron Gen. Med. Ctr.........................................................
301
Halliday v. Sturm, Ruger & Co., Inc....... 840
Halper v. Jewish Family & Children’s Serv. of Greater
Philadelphia........................ 678
Halpern v. Wheeldon............................... 423
Halpert v. Rosenthal.......... 1128, 1129, 1132
Halpin v. Schultz..................................... 857
Halvorsen v. Ford Motor Co.................... 651
Halvorson v. Voeller................. 406, 407, 408
Hamberger v. Eastman.......................... 1008
Hamburger v. Cornell University........... 529
Hames v. Cravens.................................. 1119
Hamill v. Pawtucket Mut. Ins. Co........ 1068, 1087
Hamilton Development Co. v. Broad Rock Club,
Inc................................................. 98
Hamilton v. Asbestos Corp...................... 441
Hamilton v. Bares.................................... 516
Hamilton v. Beretta U.S.A. Corp............ 653
Hamilton v. Lake Charles Am. Press,
Inc......................................................... 956
Hamilton v. Oppen................................... 385
Hamlet at Willow Creek Development Co., LLC v. Northeast Land
Development Corp....................................................... 111
Hamm v. United States........................... 758
Hamman v. County of Maricopa..... 576, 658
Hammerlind v. Clear Lake Star Factory Skydiver’s
Club..................................... 449
Hammerstein v. Jean Development West.............................................. 349,
355
Hammock v. Red Gold, Inc...................... 361
1242
Hammond v. Bechtel Inc......................... 770

Hammond v. North American Asbestos
Corp...................................................... 806
Hampton v. North Carolina Pulp Co..... 746, 1068
Hanauer v. Coscia........................... 134, 136
Hancock v. Bryan County Bd. of Educ...................................................... 450
Hancock-Underwood v. Knight....... 221, 224
Hand v. Howell, Sarto & Howell........... 1172
Handa v. Munn........................................ 510
Handleman v. Cox................................... 467
Handler Corp. v. Tlapechco............. 293, 604
Handy v. Nejam............................... 460, 467
Hanford Nuclear Reservation Litig., In re......................................................
313
Hankla v. Postell..................................... 512
Hanks v. Entergy Corp.............................. 39
Hanks v. Powder Ridge Restaurant Corp.................................................. 6,
409
Hanlon v. Davis....................................... 989
Hannaford Bros. Co. Customer Data Sec. Breach Litig., In
re.............................. 700
Hannah v. Heeter....................... 1158, 1159, 1160, 1161
Hanneman v. Downer........................... 1075
Hannemann v. Boyson............................ 514
Hannex Corp. v. GMI, Inc..................... 1108
Hannon v. Hayes-Bickford Lunch Sys.,
Inc......................................................... 603
Hans v. Louisiana.................................... 564
Hansen v. Abrasive Eng’g & Mfg., Inc................................................. 283,
817
Hansen v. Anderson, Wilmarth & Van Der Maaten.......................................
882, 1172
Hansen v. Baxter Healthcare Corp........ 830
Hansen v. Board of Trustees of Hamilton Southeastern School
Corp................... 761
Hansen v. City of Pocatello..................... 307
Hanson v. Binder..................................... 388
Hanson v. Singsen................................... 432
Happel v. Wal-Mart Stores, Inc..... 206, 268, 496
Haralson v. Fisher Surveying, Inc......... 688, 863
Harbeson v. Parke-Davis, Inc......... 677, 681
Hardee v. Bio-Medical Applications of South Carolina, Inc.............. 501,
653, 660
Harder v. F.C. Clinton, Inc..... 301, 306, 539
Hardin v. Caldwell.................................. 866
Hardingham v. United Counseling Service of
Bennington....................................... 618
Hardt v. Reliance Standard Life Ins. Co..........................................................
924
Hardwicke v. Am. Boychoir Sch............. 599
Hardy v. LaBelle’s Distrib. Co.......... 76, 166
Hardy v. Monsanto Enviro-Chem Sys.
Inc......................................................... 394
Hardy v. Vial......................................... 1037
Hargrove v. McGinley............................. 219
Harkins v. Win Corp............................... 147
Harlfinger v. Martin................................ 434
Harlin v. Sears Roebuck & Co................. 474
Harlingen, City of v. Estate of Sharboneau......................................... 1142
Harlow v. Chin......................................... 528
Harlow v. Connelly.................................. 398
Harlow v. Fitzgerald................................ 577
Harmon v. Washburn.............................. 381
Harnish v. Children’s Hosp. Medical Center........................................... 517,
522
Harnish v. Herald-Mail Co...................... 956
Harold L. Martin Distributing Co., Ex
parte...................................................... 470
Harold McLaughlin Reliable Truck Brokers, Inc. v.
Cox........................................... 1026
Harpending v. Meyer............................... 129
Harper v. Baptist Medical Center—Princeton...............................................
531
Harper v. Kampschaefer.......... 143, 146, 147
Harper v. McDonald................................. 583
Harper v. Robinson.................................. 782
Harradon v. Schlamadinger.................... 469
Harrell v. Louis Smith Mem’l Hosp........ 598
Harrigfeld v. Hancock............................ 1175
Harrington v. Brooks Drugs, Inc............. 719
Harrinton v. Costello............................... 430
Harris v. Bornhorst...................... 1095, 1097
Harris v. Forklift Systems, Inc.................. 63
Harris v. Groth................................. 506, 507
Harris v. Jones................................. 431, 711
Harris v. Kissling................................... 1184
Harris v. Kreutzer.................................... 499
Harris v. Miller........................................ 775
Harris v. Raymond................................... 505
Harris v. Roderick.................................... 362
Harris v. State, Dep’t of Corr.................. 922
Harris v. Suniga........................... 1075, 1085
Harris v. Uebelhoer................................. 224
Harris v. Westin Mgmt. Co. East............ 914
Harris-Fields v. Syze............................... 609
Harrison v. Binnion......................... 314, 318
Harrison v. Loyal Protective Life Ins.
Co.......................................................... 688
Harrison v. Middlesex Water Co............. 483
Harrison v. NetCentric Corp....... 1096, 1106
Harrison v. Springdale Water & Sewer
Com’n.................................................. 1036
Harrison v. United States........................ 517
Harrison v. Wisdom................................. 159
Harry Stoller and Co. v. City of Lowell.................................................... 574
Hart v. Child’s Nursing Home Co., Inc.........................................................
727
Hart v. E.P. Dutton & Co....................... 1002
Hart v. Electronic Arts, Inc......... 1008, 1207
Hart v. Shastri Narayan Swaroop, Inc.........................................................
608
Hart-Albin Co. v. McLees Inc.................. 839
Harte-Hanks Communications, Inc. v. Connaughton......................................
1039
Hartford Accident & Indem. Co. v. Cardillo.................................................
914
Hartford Financial Corp. v. Burns.......... 114
1243
Hartford v. State Bar of California......... 116

Hartford v. Womens Services................. 745
Hartley v. Oidtman................................. 137
Hartley v. Waldbaum, Inc....................... 470
Hartman v. Hartman...................... 594, 595
Hartman v. Keri.................................... 1091
Hartman v. Moore................................... 582
Hartwig v. Oregon Trail Eye Clinic........ 726
Harvey v. Metro. Utils. Dist. of Omaha.................................................. 305
Harvey v. Mid-Coast Hosp...................... 395
Harvey v. Strickland....................... 182, 514
Harvey v. Washington............................. 320
Harwood Pharmacal Co. v. National Broad.
Co.......................................................... 953
Haseman v. Orman................. 767, 768, 778
Haslam’s Case......................................... 914
Hassan v. Deutsche Bank A.G.............. 1104
Hassan v. Mercy Am. River Hosp........... 975
Hassan v. Stafford................................... 452
Hasson v. Hale......................................... 232
Hastings v. Mechalske............................ 603
Hastings v. Sauve.................................... 779
Hatahley v. United States....................... 562
Hatch v. Davis....................... 712, 713, 1043
Hatch v. State Farm Fire & Cas. Co...... 710
Hatch v. Town of Middletown............... 1013
Hatfield v. Health Mgmt. Assocs. of W.
Va....................................................... 1112
Hatfill v. New York Times Co........ 936, 944, 993
Hatton, State v........................................ 137
Haudrich v. Howmedica, Inc................... 853
Hauf v. Life Extension Foundation...... 1208
Haugen v. BioLife Plasma Services........ 304
Havana Cent. NY2 LLC v. Lunney’s Pub,
Inc....................................................... 1101
Haver v. Hinson....................................... 256
Hawaii Med. Ass’n v. Hawaii Med. Serv. Ass’n, Inc..................................
1079, 1100
Hawke v. Maus.......................................... 87
Hawkins v. Harris................................... 578
Hawkins v. Hawkins................................. 71
Hawkins v. Peart..................................... 414
Hawkins v. Scituate Oil Co., Inc............. 714
Haworth v. Feigon........................... 983, 984
Hayes v. Camel........................................ 515
Hayes v. Decker....................................... 513
Hayes v. Price.................................. 383, 396
Hayes v. Smith........................................ 946
Haymon v. Pettit..................................... 486
Haynes v. Alfred A. Knopf, Inc............ 1013, 1022
Hays v. Miller.......................................... 783
Hayward v. Cleveland Clinic Found...... 701, 710
Haywood v. Drown.................................. 582
Hazine v. Montgomery Elevator Co....... 435, 848
Head v. Head......................................... 1137
Health Call of Detroit v. Atrium Home & Health Care Servs.,
Inc..................... 1096
Health Trust, Inc. v. Cantrell.......... 529, 531
Healthcare Ctrs. of Texas, Inc. v. Rigby.....................................................
540
Healthone v. Rodriguez................... 265, 498
Heard v. City of New York............. 626, 1123
Hearndon v. Graham............................... 439
Hearst Corp. v. Skeen.............................. 995
Heartland Academy Community Church v.
Waddle.................................................. 582
Heastie v. Roberts.................... 298, 302, 307
Heath v. La Mariana Apartments.......... 259, 721
Heath v. Montana Mun. Ins. Auth.......... 914
Heath v. Palmer........................... 1079, 1087
Heck v. Humphrey............... 582, 1033, 1187
Heck, Estate of v. Stoffer......................... 343
Heckler v. Campbell................................. 924
Hector v. Metro Centers, Inc............. 87, 170
Hedgepeth v. Whitman Walker Clinic..................................................... 714
Hegel v. McMahon................... 716, 722, 723
Hegyes v. Unjian Enters., Inc.................. 676
Hein v. Acuity........................................ 1147
Heiner v. K-Mart Corp............................. 893
Heiner v. Moretuzzo................................. 727
Heinrich v. Sweet............................. 420, 509
Heinz v. Heinz.......................................... 798
Heiser, Estate of v. Islamic Republic of
Iran....................................................... 717
Heldreth v. Marrs.................................... 718
Helena Chem. Co. v. Uribe...................... 966
Helena Labs. Corp. v. Snyder................ 1052
Helfend v. Southern Cal. Rapid Transit
Dist........................................................ 859
Hellar v. Bianco........................................ 941
Helling v. Carey............................... 506, 507
Hellriegel v. Tholl.............................. 63, 164
Hellums v. Raber..................................... 328
Helms v. Carmel High Sch. Vocational Bldg. Trades
Corp................................ 605
Helms v. Helms...................................... 1167
Helsel v. Noellesch................................. 1051
Hembree v. State..................................... 357
Hemenway v. Presbyterian Hosp. Ass’n......................................................
599
Hemmings v. Pelham Wood Ltd. Liability
Partnership................................... 644, 645
Henderson v. MeadWestvaco Corp.......... 697
Henderson v. Security National Bank...................................................... 152
Henderson v. Taylor................................. 450
Hendrick v. ABC Ins. Co........................ 1182
Hendricks v. Broderick............................ 425
Hendrickson v. Genesis Health Venture,
Inc......................................................... 537
Henley v. Dillard Department Stores... 1208
Hennessey v. Coastal Eagle Point Oil Co........................................................
1012
Hennessey v. Pyne................................... 396
Hennessey v. Restaurant Assocs., Inc.......................................................
1159
1244
Hennig v. Alltel Commc’ns, Inc........... 1009, 1014

Hennigan v. Nantasket Boat Line, Inc................................................. 449,
450
Henningsen v. Bloomfield Motors, Inc.........................................................
800
Henrich v. Libertyville High School....... 646
Henricksen v. State................................. 714
Henry Hope X-Ray Products, Inc. v. Marron Carrel,
Inc.......................................... 1205
Henry v. Deen........................................ 1025
Henry v. Dow Chem. Co.......................... 854
Henry v. Mutual of Omaha Ins. Co........ 686
Henry v. National Union Fire Ins. Co.... 852
Henry v. Superior Court......................... 887
Hensley v. Jackson County..................... 566
Hensley v. Montgomery County............. 484
Henson v. Klein............................... 218, 382
Hepps v. Philadelphia Newspapers, Inc.........................................................
938
Herber v. Johns-Manville Corp...... 312, 334
Herberg v. Swartz................................... 453
Herbst v. Wuennenberg............................ 76
Hern v. Safeco Ins. Co. of Ill........... 692, 693
Hernandez v. City of Pomona................. 162
Hernandez v. Hillsides, Inc........... 708, 1009
Hernandez v. K-Mart Corp..................... 163
Hernandez v. Tokai Corp................ 813, 815
Hernandez, Estate of v. Arizona Board of
Regents................................................. 664
Hernandez-Gomez v. Leonardo (Volkswagen of America, Inc.)............. 846
Herr v. Wheeler....................................... 220
Herrera v. Quality Pontiac...................... 363
Herrington v. Deloris Gaulden............... 625
Herrmann v. Newark Morning Ledger Co..................................................
945, 949
Herron v. Anigbo............................. 429, 432
Herron v. Hollis....................................... 279
Herron v. Tribune Publ’g Co., Inc........... 978
Hersh v. County of Morris...................... 914
Hershey v. Hershey..................... 1056, 1057
Hertel v. Sullivan.................................... 180
Hertog v. City of Seattle.......... 316, 576, 651
Hertz v. Luzenac Group........................ 1204
Herzfeld v. Herzfeld................................ 594
Herzog v. Yuill....................................... 1190
Hess v. Chase Manhattan Bank, USA, N.A.....................................................
1137
Hesse v. McClintic........................... 207, 219
Hester v. Bandy............................... 768, 769
Hetzel v. United States........................... 556
Hewes v. Wolfe...................................... 1025
Hewitt v. Rice........................................ 1042
Hewlett v. George.................................... 593
Heyd v. Chicago Title Ins. Co............... 1074
Heyman v. Gable, Gotwals, Mock, Schwabe, Kihle,
Gabarino.................................. 1178
Heynen v. Fairbanks............................... 489
Hibbard v. Secretary of Health & Human
Servs..................................................... 929
Hickey v. Zezulka.................... 372, 374, 395
Hickle v. Whitney Farms, Inc.................. 654
Hickman v. . Group Health Plan, Inc...... 679
Higginbotham v. Public Serv. Comm’n of
Md......................................................... 938
Higgins Invs., Inc. v. Sturgill.................. 326
Higgins v. Butcher................................... 685
Higgins v. E. Valley Sch. Dist................. 227
Higgins v. Karp...................................... 1167
High Country Fashions, Inc. v. Marlenna Fashions,
Inc...................................... 1002
Highland Indus. Park, Inc. v. BEI Defense Sys.
Co.................................................. 431
Highview North Apartments v. County of
Ramsey................................................. 741
Hilario v. Reardon.................................. 1188
Hiles v. Episcopal Diocese of Mass.......... 970
Hill v. Alderman of City of Charlotte...... 568
Hill v. Carlstrom.................................... 1039
Hill v. City of Lincoln............................... 294
Hill v. Fairfield Nursing & Rehabilitation Center,
LLC.......................................... 496
Hill v. McKinley..................................... 1010
Hill v. Mills............................................... 681
Hill v. National Collegiate Athletic Ass’n....................................................
1012
Hill v. Sparks........................................... 231
Hill v. Thompson...................................... 305
Hillrichs v. Avco Corp.............................. 841
Hillsborough Cnty. Hosp. Authority v.
Coffaro.................................................. 526
Himsel, Estate of v. State........................ 774
Hincks v. Walton Ranch Co..................... 292
Hines v. Davidowitz................................. 442
Hines v. Garrett............................... 448, 451
Hinish v. Meier & Frank Co., Inc......... 1006, 1020
Hinkie v. United States................... 561, 674
Hinkle v. Cornwell Quality Tool Co........ 124
Hinman v. Pacific Air Lines Transport..... 94
Hinman v. Westinghouse Elec. Co.......... 758
Hinsdale v. Orange County Publ’ns, Inc.........................................................
964
Hirpa v. IHC Hosps., Inc......................... 524
Hirsch v. S.C. Johnson & Son, Inc........ 1208
Hirst v. Inverness Hotel Corp................. 296
Hislop v. Salt River Project Agric. Improvement & Power Dist......... 716,
718
Hitachi Chem. Electro-Products, Inc. v.
Burley................................................... 673
Hite v. Brown................................... 621, 720
Hitson v. Simms..................................... 1030
Hixon v. Buchberger.............................. 1056
Hizey v. Carpenter................................. 1169
Hobart v. Shin.......................................... 395
Hobson v. American Cast Iron Pipe Co........................................................
1119
Hobson, State v........................................ 137
Hocking v. City of Dodgeville.................. 736
Hodge v. Craig........................................ 1116
Hodge v. Osteopathic Gen. Hosp. of R.I..........................................................
599
Hodgeden v. Hubbard.............................. 151
1245
Hodges v. Gibson Prods. Co.................. 1032

Hodges v. Yarian..................................... 611
Hodgson v. Minnesota............................. 172
Hoery v. United States.............................. 98
Hofer v. Gap, Inc..................................... 303
Hofer v. Meyer......................................... 477
Hofflander v. St. Catherine’s Hosp., Inc.........................................................
227
Hoffman v. Capital Cities/ABC, Inc..... 1207
Hoffman v. Jones............................. 384, 386
Hoffman v. Planters Gin Co.................... 464
Hoffman v. Union Elec. Co...................... 269
Hoffman v. Unterberg........................... 1153
Hoffman-LaRoche Inc. v. Mason............. 830
Hoffnagle v. McDonald’s Corp................ 766
Hogan v. New York Times Co................. 996
Hogan v. Tavzel....................................... 176
Hogan v. Winder...................................... 955
Hogle v. Hall............................................ 674
Hohe v. San Diego Unified Sch. Dist...... 414
Hoines v. Barney’s Club, Inc................. 1035
Hojnowski v. Vans Skate Park....... 223, 414
Holcomb v. Colonial Assocs., LLC.......... 780
Holcombe v. NationsBanc Fin. Servs.
Corp...................................................... 297
Holdenville, City of v. Kiser...................... 99
Holger v. Irish.......................................... 279
Hollander v. Days Inn Motel................... 452
Hollander v. Smith & Smith................... 450
Holleman v. Aiken................................... 963
Holliday v. Jones................................... 1189
Hollingshed v. Levine.............................. 921
Hollingsworth v. Schminkey................... 349
Hollock v. Erie Ins. Exchange............... 1147
Holloway v. Wachovia Bank & Trust
Co............................................................ 79
Holmes v. Amerex Rent-A-Car............ 1158, 1159, 1160, 1161
Holmes v. Elliott...................................... 510
Holmes v. Grubman.............................. 1123
Holmes v. Levine..................................... 339
Holodook v. Spencer........................ 138, 594
Holsten v. Massey.................................... 572
Holton v. Memorial Hosp........................ 333
Holtzscheiter v. Tomson Newspapers,
Inc......................................................... 962
Holzheimer v. Johannsen........................ 464
Homac Corporation v. Sun Oil Co.......... 356
Home Pride Foods, Inc. v. Johnson....... 1206
Home Star Bank and Financial Services v. Emergency Care and Health
Organization, Ltd................................ 523
Homer v. Long......................................... 713
Honda Motor Co. Ltd. v. Oberg............... 867
Honda of America Mfg., Inc. v. Norman................................................ 822
Hondroulis v. Schuhmacher.................... 518
Hood, Commonwealth v.......................... 157
Hoofnel v. Segal....................................... 170
Hook v. Trevino........................... 1182, 1186
Hooker v. Dep’t of Transportation.......... 770
Hoopes v. Hammargren........................ 1143
Hoover v. Broome..................................... 466
Hoover v. Williamson....................... 498, 500
Hopfauf v. Hieb........................................ 519
Hopkins v. Bonvicino............................... 584
Hopkins v. Miss. Valley Gas Co.............. 217
Hopkins v. O’Connor................................ 939
Hopkins v. Silber...................................... 528
Hopp & Flesch, LLC v. Backstreet........ 1169
Hoppe IV v. Hoppe III.............................. 594
Hopper v. Swinnerton.............................. 246
Horak v. Biris........................................... 713
Horizon/CMS Healthcare Corp. v. Auld....................................... 538, 541,
863
Hormel Foods Corp. v. Jim Henson Productions.........................................
1196
Horn v. Citizens Hosp.............................. 434
Horn v. Fadal Machinery Centers, LLC.......................................................
841
Horn v. Wooster........................... 1163, 1175
Hornback v. Archdiocese of Milwaukee............................................ 658
Horne v. Patton............................ 1014, 1015
Horne v. TGM Assocs., L.P...................... 117
Horne v. Vic Potamkin Chevrolet, Inc.........................................................
655
Horning v. Penrose Plumbing & Heating
Inc......................................................... 433
Hornstein v. Wolf................................... 1037
Horodyskyj v. Karanian........................... 914
Horst v. Deere & Co................................. 801
Horstmeyer v. Golden Eagle Fireworks.............................................. 253
Horton v. Goldminer’s Daughter............. 435
Horton v. Hinely................................. 58, 233
Horton v. Tyree............................ 1130, 1132
Horvath v. Ish.......................................... 424
Hose v. Winn-Dixie Montgomery, Inc..... 466
Hosein v. Checker Taxi Co., Inc.............. 766
Hough v. Mooningham............................. 863
Houghum v. Valley Mem’l Homes......... 1009
House v. Armour of America, Inc............ 813
Houseman v. Publicaciones Paso del Norte, S.A. DE
C.V.......................................... 952
Housing Auth. of City of Rolla v. Kimmel................................................. 305
Houston Lighting and Power Co. v. Sue..........................................................
86
Houston v. Kinder-Care Learning Centers,
Inc................................................. 164, 173
Hout v. Johnson....................................... 258
Howard Frank, M.D., P.C. v. Superior
Court..................................................... 719
Howard v. Antilla..................................... 980
Howard v. Chimps, Inc.................... 241, 410
Howard v. Dorr Woolen Co.................... 1148
Howard v. East Texas Baptist Univ........ 479
Howard v. S. Baltimore Gen. Hosp......... 597
Howard v. Univ. of Med. & Dentistry of New
Jersey........................................... 515
Howard v. Zimmer, Inc............................ 252
Howell v. Cahoon..................................... 220
Howell v. Howell.................................... 1053
1246
Howland v. Balma................................... 922

Howle v. PYA/Monarch, Inc.................... 225
Howlett v. Rose........................................ 582
Hoye v. Hoye.......................................... 1051
Hoyt Props., Inc. v. Productions Res. Group,
LLC..................................................... 1132
Hoyt v. Cooks........................................... 584
Hoyt v. Rosenberg................................... 234
HPI Health Care Servs., Inc. v. Mt. Vernon Hosp.,
Inc........................................... 1097
Hubbard v. Beatty & Hyde, Inc............ 1041
Hubbard v. Boelt............................. 606, 610
Hubbard-Hall Chemical Co. v. Silverman............................................. 829
Hudak v. Georgy...................................... 670
Huddleston v. Union Rural Elec. Ass’n..................................................... 767
Hudgens v. Prosper, Inc............................ 54
Hudson v. Courtesy Motors, Inc............. 462
Hudson v. Gaitan.................................... 478
Hudson v. Janesville Conservation Club......................................................
783
Hudson v. McMillian............................... 584
Hudson v. Old Guard Ins................ 234, 259
Hudson-Connor v. Putney............... 233, 236
Huebner ex rel. Lane v. Koelfgren.......... 236
Huffman v. Poore................................... 1119
Hughes v. Doe.......................................... 756
Hughes v. Lord Advocate........................ 357
Hughes v. Massey-Ferguson, Inc............ 843
Hughes v. Pair................................. 708, 710
Hughes v. PeaceHealth................... 695, 875
Hughes v. United States......................... 557
Hull v. Baran Telecom, Inc..................... 604
Hull v. Bishop-Stoddard Cafeteria......... 466
Hulse v. First Am. Title Co. of Crook County................................................
1074
Human Rights Comm’n v. LaBrie, Inc.........................................................
710
Humes v. Clinton..................................... 830
Hummel v. Reiss...................................... 678
Humphers v. First Interstate Bank of Or........................................................
1015
Humphreys v. Humphreys...................... 791
Humphries v. Detch.............................. 1188
Hunnicutt v. Sewell............................... 1179
Hunt ex rel. DeSombre v. State, Dep’t of Safety & Homeland Sec., Div. of
Del. State Police.......................................... 707
Hunt v. Chang....................................... 1051
Hunt v. Statee Dep’t of Safety & Homeland
Sec.......................................................... 64
Hunt, Henson ex rel. v. Intern. Paper
Co.......................................................... 476
Hunter v. Bryant..................................... 585
Hunter v. Dep’t of Transp. & Dev........... 281
Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA,
Inc......................................................... 985
Hupp v. Sasser................................. 940, 944
Hurd v. Williamsburg County................ 287
Hurley v. Heart Physicians, P.C............. 831
Huron Tool & Eng’g Co. v. Precision Consulting Servs., Inc............. 1077,
1078, 1084
Hurst v. East Coast Hockey League, Inc.........................................................
422
Husband v. Dubose.................................. 284
Husker News Co. v. Mahaska State Bank......................................................
128
Huskey v. Smith....................................... 669
Huss v. Gayden........................................ 432
Hustler Magazine v. Falwell........... 710, 936
Huston v. Konieczny........................ 329, 664
Hutcherson v. City of Phoenix........ 572, 625, 880
Hutchins v. Schwartz............................... 407
Hutchinson v. Proxmire................... 581, 968
Hutchison v. Luddy.................. 393, 862, 863
Hutchison v. Ross..................................... 111
Hutton v. Davis........................................ 697
HY Cite Corp. v. Badbusinessbureau.Com,
LLC....................................................... 972
Hydro Investors, Inc. v. Trafalgar Power
Inc....................................................... 1074
Hylazewski v. Wet ‘N Wild, Inc............... 466
Hyler v. Garner............................ 1128, 1130
Hymowitz v. Eli Lilly & Co.............. 328, 330
I.C.C. Metals v. Municipal Warehouse
Co.......................................................... 118
Iannacchino v. Ford Motor Co................. 285
Ianotta v. Tishman Speyer Props., Inc.........................................................
298
IDC Clambakes, Inc., In re...................... 164
IDT Corp. v. Morgan Stanley Dean Witter &
Co.................................................... 1145
Iemma v. Adventure RV Rentals, Inc................................................. 114,
195
Iglehart v. Bd. of Cty. Comm’rs of Rogers
County.................................................. 205
Ikani v. Bennett............................... 976, 980
Ilitzky v. Goodman................................... 963
Illinois Bell Switching Station Litig., In re.....................................................
1069
Illinois Central R. v. White...................... 463
Illinois v. Lidster...................................... 155
Imbler v. Pachtman............... 578, 582, 1025
Imig v. Beck.............................................. 300
Imperial Distrib. Servs., Inc. v. Forrest.... 217
Incase Inc. v. Timex Corp...................... 1204
Indemnity Ins. Co. of N. Am. v. American Aviation, Inc......... 1077, 1081,
1084, 1156
Independent Fire Ins. Co. v. Able Moving and Storage
Co..................................... 771
Independent Newspapers, Inc. v. Brodie....................................................
971
Indian Bayou Hunting Club, Inc. v. Taylor......................................................
91
Indian Towing Co. v. United States....... 552, 554, 556, 559
Indiana Consol. Ins. Co. v. Mathew........ 269
Industrial Chem. & Fiberglass Corp. v.
Chandler............................................... 689
Infant Fontaine, In re Estate of.............. 696
1247
Ingalls v. Standard Gypsum, LLC.......... 919

Ingham v. Luxor Cab Co......................... 450
Inglehart v. Board of County Com’rs of Rogers
County...................................... 485
Ingraham v. Wright................................. 139
Inmi-Etti v. Aluisi................................... 123
Innes v. Howell Corp............................... 954
Insurance Co. of N. Am. v. Cease Elec. Inc.............................................
1065, 1087
Integrated Cash Management Services, Inc. v. Digital Transactions,
Inc............... 1204
Integrated Health Care Servs., Inc. v. Lang-
Redway................................................. 527
Integrated Waste Services, Inc. v. Akzo Nobel Salt,
Inc..................................... 795
International Paper Co. v. Whilden...... 1148
International Sales & Serv., Inc. v. Austral Insulated Prods.,
Inc.......................... 1104
International Strategies Group, Ltd. v. Greenberg Traurig, LLP..........
1166, 1176
International Union of Operating Eng’rs, Local 150 v. Lowe Excavating
Co........ 873
Invest Cast, Inc. v. City of Blaine........... 574
Investors REIT One v. Jacobs................. 128
Iodice v. United States............................ 500
Ioerger v. Halverson Constr. Co............. 919
Ippolito v. Lennon.................................. 1151
Ira S. Bushey & Sons, Inc. v. United States........................................... 756,
761
Irish v. Gimbel......................................... 433
Ironworkers Local Union 68 v. AstraZeneca Pharm., LP...............................
1119, 1140
Irvine v. Akron Beacon Journal............ 1012
Irvine v. Rare Feline Breeding Ctr., Inc................................................. 782,
783
Irvine, Bennett ex rel. v. City of Philadelphia......................................... 649
Irwin v. Ashurst...................................... 967
Irwin v. Pacific Sw. Airlines.................... 297
Isaacs v. Huntington Memorial Hosp..... 639
Israel v. Barnwell.................................... 320
Ives v. Guilford Mills, Inc...................... 1105
Ives v. South Buffalo Ry. Co................... 912
Ivy Manor Nursing Home, Inc. v. Brown...................................................
542
Ivy v. General Motors Acceptance Corp......................................................
116
Iwai v. State..................................... 470, 472
Iwanski v. Gomes............................ 180, 497
J. D. Cousins & Sons, Inc. v. Hartford Steam Boiler Inspection &
Ins............ 217
J. E. v. Beth Israel Hosp......................... 306
J. Smith Lanier & Co. v. Se. Forge, Inc.........................................................
700
J. v. Victory Tabernacle Baptist Church.................................. 456, 598, 657
J. Weingarten, Inc. v. Thompson............ 470
J.A.H. v. Wadle & Assocs.............. 503, 1057
J.M. v. Shell Oil Co.................................. 766
J.T. Baggerly v. CSX Transp., Inc......... 346, 353, 357
Jablonowska v. Suther............................ 718
Jablonski v. Ford Motor Co..................... 844
Jackson Hole Mtn. Resort Corp. v. Rohrman...............................................
424
Jackson v. Axelrad........... 229, 230, 231, 507
Jackson v. Bi-Lo Stores, Inc.................. 1103
Jackson v. Bumgardner................... 680, 682
Jackson v. City of Joliet........................... 619
Jackson v. City of Kansas City........ 572, 645
Jackson v. Columbus....................... 982, 989
Jackson v. District of Columbia................. 61
Jackson v. General Motors Corp............ 803, 809, 812
Jackson v. Mateus.................................... 781
Jackson v. McCuiston.............................. 236
Jackson v. Nestle-Beich, Inc............ 806, 808
Jackson v. PKM Corporation................... 663
Jackson v. Post Props., Inc...................... 396
Jackson v. Power.............................. 530, 771
Jackson v. Scheible.................................. 487
Jackson v. Stanfield............................... 1103
Jackson v. Sun Oil Co. of Pa.................... 707
Jackson v. United States................. 552, 560
Jackson, City of v. Spann........................ 318
Jackson, In re Guardianship of............... 172
Jacob E. Decker & Sons, Inc. v. Capps.................................................... 800
Jacobsen, Stark ex rel. v. Ford Motor
Co.......................................................... 838
Jacqueline R. v. Household of Faith Family Church,
Inc........................................... 180
Jacqueline S. v. City of New York........... 645
Jacques v. Childs Dining Hall Co...... 75, 153
Jacron Sales Co., Inc. v. Sindorf.............. 995
Jaeger Baking Co. v. Kretschmann......... 914
Jaeger v. Evangelical Lutheran Holy Ghost
Congregation........................................ 911
Jaffee v. Stone........................................ 1034
Jagger v. Mohawk Mountain Ski Area,
Inc......................................................... 425
Jahn v. Hyundai Motor Co...................... 840
Jahner v. Jacob................................ 132, 135
Jamar v. Patterson.................................. 367
James G. v. Caserta......................... 681, 682
James v. City of Douglas, Ga................. 1010
James v. Kelly Trucking Co..................... 657
Jamison v. Morris.................................... 766
Janelsins v. Button............................ 61, 167
Janicki v. Hospital of St. Raphael........... 729
Janis v. Nash Finch Co.................... 466, 468
Jankee v. Clark Cty................................. 227
Janusauskas v. Fichman......................... 517
Jarboe v. Board of County Comn’rs of Sedgwick
County.................................. 568
Jarmie v. Troncale................................... 500
Jarrett v. Woodward Bros., Inc............... 384
Jarrow Formulas, Inc. v. LaMarche..... 1039, 1047
Jarvis v. Ford Motor Co........................... 824
Jaskoviak v. Gruver......................... 515, 517
Jass v. Prudential Health Care Plan, Inc.........................................................
536
Jaworski v. Kiernan......................... 425, 426
1248
Jay v. Moog Auto., Inc..................... 417, 836

Jaynes v. Centura Health Corp............ 1148
Jean W. v. Commonwealth..................... 572
Jeanes v. Bank of America, N.A........... 1181
Jedrziewski v. Smith............................... 898
Jeewarat v. Warner Bros. Entertainment,
Inc......................................................... 759
Jefferies v. Bush........................................ 97
Jefferson County Commonwealth Attorney’s Office v.
Kaplan................................... 888
Jefferson County School District R-1 v.
Gilbert.................................................. 627
Jeffres v. Countryside Homes of Lincoln,
Inc......................................................... 157
Jeffries v. Potomac Development Corp...................................................... 464
Jelly v. Dabney........................................ 133
Jenco v. Islamic Republic of Iran............ 712
Jenkins v. Pensacola Health Trust, Inc.........................................................
697
Jennifer C. v. Los Angeles Unified School
Dist....................................................... 647
Jennings v. Badgett................................. 498
Jennison v. Providence St. Vincent Medical
Ctr........................................................ 772
Jensen v. American Suzuki Motor Corp......................................................
840
Jensen v. Anderson County Dep’t of Social
Services................................................ 634
Jensen, Thunder Hawk ex rel. v. Union Pacific R.
Co......................................... 477
Jerista v. Murray................................... 1157
Jernigan v. Ham...................................... 123
Jerry’s Enterprises, Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd.......
1170, 1171, 1173
Jesse v. Lindsley...................................... 411
JetBlue Airways Corp. Privacy Litigation, In
re...................................................... 106
Jeter v. Mayo Clinic Ariz................ 671, 714
Jews For Jesus, Inc. v. Rapp.......... 944, 950, 1020
Jilani v. Jilani.......................................... 594
Jimenez v. Sears, Roebuck & Co..... 836, 842
Jivan v. Economy Inn & Suites.............. 915
Jividen v. Law................................. 780, 781
Jocelyn Canyon, Inc. v. Lentjes............ 1127
Joe Dickerson & Assocs., LLC v. Dittmar..................................... 1007, 1008
Johannesen v. New York City Dep’t of Hous. Pres. & Dev........................
916, 917
Johansen v. Makita U.S.A., Inc.............. 836
John B. v. Super. Ct......... 188, 205, 269, 592
John Doe 1. v. Archdiocese of Milwaukee............................................ 436
John Hancock Mut. Life Ins. Co. v. Banerji..................................................
700
John Q. Hammons, Inc. v. Poletis......... 452, 453
John R. Sand & Gravel Co. v. United States...................................................
429
John R. v. Oakland Unified School Dist........................................................
647
Johnson & Johnson Corp., State ex rel. v.
Karl....................................................... 831
Johnson & Johnson v. Superior Court..................................................... 862
Johnson County Sheriff’s Posse, Inc. v.
Endsley................................................. 490
Johnson ex rel. Johnson v. Young Men’s Christian Ass’n of Great
Falls............. 217
Johnson ex rel. Johnson, Estate of v. Badger Acquisition Of Tampa LLC.....
246
Johnson Insulation, Commonwealth v.... 801
Johnson v. Allen..................................... 1009
Johnson v. American Standard, Inc........ 831
Johnson v. Babcock................................ 1188
Johnson v. Bollinger.......................... 71, 961
Johnson v. BP Chems., Inc...................... 922
Johnson v. Brooks...................................... 71
Johnson v. City of Milwaukee................. 273
Johnson v. Dallas Independent School
Dist........................................................ 650
Johnson v. Ford Motor Co................ 841, 866
Johnson v. Garnand................................. 258
Johnson v. Hale........................................ 710
Johnson v. Halloran............................... 1191
Johnson v. Healy.................................... 1127
Johnson v. Hillcrest Health Ctr., Inc..... 353, 529
Johnson v. Investment Co. of the South,
LLC....................................................... 462
Johnson v. Jamaica Hosp........................ 715
Johnson v. Johnson.......................... 117, 439
Johnson v. K-Mart Corp........................ 1013
Johnson v. K-Mart Enterprises, Inc........ 155
Johnson v. Kosmos Portland Cement Co..........................................................
359
Johnson v. KTBS, Inc.............................. 954
Johnson v. Lambotte................................ 226
Johnson v. LeBonheur Children’s Medical
Ctr......................................................... 756
Johnson v. Luhman............................... 1056
Johnson v. Manhattan & Bronx Surface Transit Operating Auth...............
690, 861
Johnson v. Marks................................... 1190
Johnson v. Matthew J. Batchelder Co..........................................................
382
Johnson v. Niagara Mach. & Tool Works....................................................
841
Johnson v. Omondi.................................. 523
Johnson v. Pankratz.................................. 83
Johnson v. Paynesville Farmers Union Co-op. Oil
Co........................................... 92
Johnson v. Pettigrew....................... 474, 475
Johnson v. Ramsey County........... 61, 62, 83
Johnson v. Reiger................................... 1143
Johnson v. Rental Unif. Serv. of Greenville, S.C.,
Inc................................................. 921
Johnson v. Robbinsdale Indep. Sch. Dist. No.
281.................................................. 992
Johnson v. Rockwell Automation, Inc..... 889
Johnson v. Rogers.................................... 862
1249
Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A..........................

714, 722, 732
Johnson v. Scandia Associates, Inc........ 492
Johnson v. Short...................................... 467
Johnson v. Southwestern Newspapers
Corp...................................................... 952
Johnson v. State...................... 569, 576, 723
Johnson v. Stewart................................ 1009
Johnson v. Superior Court...................... 677
Johnson v. United States........................ 563
Johnson v. University Health Servs., Inc.......................................................
1122
Johnson v. University Hosps. of Cleveland............................................. 681
Johnson v. Wal-Mart Stores, Inc............ 372
Johnson v. Weast................................... 1027
Johnson v. Weedman....................... 113, 114
Johnson v. Wysocki............................... 1121
Johnson v. Yates...................................... 295
Johnson, In re Estate of.......................... 694
Johnson, State v.............................. 134, 429
Johnson, United States v................ 559, 560
Johnstone v. City of Albuquerque........... 635
Jojo’s Rests., Inc. v. McFadden............... 327
Jolly v. Eli Lilly & Co.............................. 431
Jones & Laughlin Steel Corp. v. Pfeifer................................................... 859
Jones Food Co., Inc. v. Shipman............. 604
Jones Motor Co., Inc. v. Holtkamp, Liese, Beckemeier & Childress,
P.C............ 1173
Jones v. Ahlberg...................................... 368
Jones v. Bennett...................................... 299
Jones v. Blair........................................... 259
Jones v. Bland......................................... 453
Jones v. Brookshire Grocery Co.............. 217
Jones v. City of Chicago................ 753, 1028
Jones v. Crawforth.................................. 889
Jones v. DCH Health Care Authority..... 112
Jones v. Dressel............................... 410, 449
Jones v. Hansen....................................... 463
Jones v. HealthSouth Treasure Valley
Hosp..................................................... 772
Jones v. Imperial Palace of Mississippi,
LLC....................................................... 469
Jones v. Malinowski................................ 682
Jones v. Mid-Atlantic Funding Co.......... 239
Jones v. NordicTrack, Inc....................... 821
Jones v. Owings....................................... 331
Jones v. Porretta..................................... 506
Jones v. State........................................... 969
Jones v. Three Rivers Mgmt. Corp......... 423
Jones v. United States............................ 560
Jones v. Warner..................................... 1032
Jones v. Westernaires............................. 600
Jordan v. Bailey..................................... 1030
Jordan v. Bogner..................................... 509
Jordan v. Commissioner of Soc. Sec....... 924
Jordan v. Holt........................................ 1145
Jordan v. Jewel Food Stores, Inc.......... 1207
Jordan v. Jordan...................................... 318
Jordan v. Western Farmers Elec. Co-op.....................................................
921
Jorgensen v. Colorado Rural Props., LLC.....................................................
1078
Jorgensen v. Meade Johnson Lab., Inc.........................................................
676
Jorgenson v. Vener........................... 504, 508
Joseph E. Seagram & Sons, Inc. v. McGuire................................................
841
Joseph v. Bozzuto Mgmt. Co.................... 245
Joseph v. Scranton Times L.P................. 953
Joseph v. State................................. 372, 395
Joshi v. Providence Health Sys. of Or. Corp...............................................
322, 331
Jost v. Dairyland Power Coop.... 738, 740, 741
Jourdain v. Dineen................................. 1139
Joyce v. General Motors Corp............... 1203
Joyce v. State, Dep’t of Corrections......... 285
JP Morgan Trust Co. Nat’l Ass’n v. Mid-America Pipeline
Co........................... 1146
Juarez v. Wavecrest Management Team Ltd.................................................
259, 489
Juchniewcz v. Bridgeport Hosp............... 390
Judy v. Hanford Envtl. Health Found.................................................... 499
Juhnke v. Evangelical Lutheran Good Samaritan Soc’y............................
538, 539
Juman v. Louise Wise Servs.................... 728
Junior Food Stores, Inc. v. Rice............. 1026
Junius Constr. Co. v. Cohen........ 1120, 1135
Jupin v. Kask................... 205, 212, 343, 744
Jurado v. Western Gear Works...... 835, 838, 839, 840
Jutzi-Johnson v. United States....... 265, 372
K & K Mgmt., Inc. v. Lee....................... 1105
K.A.C. v. Benson...................................... 726
K.D. v. Bozarth............................... 578, 1024
K.G. v. R.T.R............................................ 706
K.M. v. Ala. Dep’t of Youth Servs............ 705
Kaatz v. State................................... 386, 387
KACT, Inc. v. Rubin..................... 1094, 1102
Kaelin v. Globe Commc’ns Corp.............. 951
Kahn v. East Side Union High Sch. Dist........................................................
426
Kahn v. James Burton Company............ 476
Kahn v. Morse & Mobray....................... 1183
Kahn v. Quintana.................................... 123
Kaho’ohanohano v. Department of Human
Servs..................................................... 245
Kaiser Aluminum & Chem. Corp. v. Marshland Dredging Co.....................
1067
Kaiser v. Cook.......................................... 283
Kaiser v. Suburban Transp. Sys............. 500
Kalafut v. Gruver..................................... 670
Kalata v. Anheuser-Busch Cos., Inc........ 250
Kalina v. Fletcher.................................. 1025
Kallio v. Ford Motor Co........................... 821
Kallstrom v. United States...................... 717
Kambat v. St. Francis Hosp............ 301, 307
Kambury v. DaimlerChrysler Corp......... 848
Kamelgard v. Macura.............................. 940
Kaminer v. Canas.................................... 434
Kaminski v. Metal & Wire Prods. Co..... 921, 922
1250
Kamla v. Space Needle Corp................... 605

Kananen v. Alfred I. DuPont Inst. of Nemours Found...................................
497
Kane v. Lamothe............................. 204, 618
Kane v. Quigley..................................... 1057
Kane, Kane & Kritzer, Inc. v. Altagen............................................... 1185
Kann v. Kann......................................... 1145
Kansas State Bank & Trust Co. v. Specialized Transp. Servs., Inc...........
896
Kant v. Altayar.......................................... 84
Kanzler v. Renner............................ 709, 710
Kaplan v. Mamelak................................. 169
Karaduman v. Newsday, Inc................... 980
Karage v. First Advantage Corp..... 941, 950
Karas v. Strevell.............................. 424, 426
Karczmit v. State..................................... 406
Kardos v. Harrison.................................. 505
Karlsson v. Ford Motor Co...................... 803
Karraker v. Rent-A-Center, Inc............ 1014
Kash v. Jewish Home and Infirmary of Rochester, N.Y.,
Inc............................. 546
Kassama v. Magat................................... 677
Kassel v. Gannett Co., Inc....................... 991
Kassouf v. Lee Bros., Inc......................... 836
Kastner v. Toombs................................... 774
Katapodis v. Brooklyn Spectator............ 944
Kathleen K. v. Robert B.......................... 176
Katko v. Briney................................ 143, 144
Kaufman v. Fisher................................... 302
Kavadas v. Lorenzen............................... 898
Kavanagh v. Trustees of Boston Univ...................................................... 757
Keans v. Bottiarelli......................... 404, 528
Kearney v. Philip Morris, Inc................. 820
Kearns v. McNeill Brothers Moving and Storage
Company................................. 118
Kearns, United States v........................ 1146
Keck v. Jackson....................... 715, 718, 722
Keck v. Keck.......................................... 1124
Keebler v. Winfield Carraway Hosp...... 504, 509
Keel v. Banach......................................... 681
Keenan v. Hill.......................................... 253
Keesecker v. G.M. McKelvey Co............. 101
Keffe v. Milwaukee & St. Paul Ry.......... 476
Kehoe v. New York Tribune.................. 1003
Kehoe v. Saltarelli................................. 1166
Keller v. City of Spokane........................ 486
Keller v. DeLong...................................... 225
Keller v. Kiedinger.................................. 367
Kellermann v. McDonough..................... 346
Kelley Kar Company v. Maryland Casualty
Co.......................................................... 124
Kelley v. Bonney.............................. 966, 992
Kelley v. Callahan................................... 924
Kelley v. Centennial Contractors Enters...................................................
720
Kelley v. LaForce..................................... 110
Kelley v. Middle Tennessee Emergency Physicians,
P.C.................................... 497
Kelley v. Story County Sheriff................ 161
Kelley v. Tanoos....................... 973, 976, 981
Kellos v. Sawilowsky.............................. 1168
Kelly v. Borough of Carlisle..................... 586
Kelly v. Brigham & Women’s Hosp......... 729
Kelly v. Daro............................................ 968
Kelly v. Golden....................................... 1111
Kelly v. Henry Muhs Co.......................... 257
Kelly v. Stop and Shop, Inc..................... 469
Kelly, Estate of v. Falin........................... 663
Kelso v. McGowan.................................. 1148
Kemezy v. Peters.............................. 863, 865
Kemp v. American Tel. & Tel. Co............ 869
Kemper v. Builder’s Square..................... 292
Kemper v. Gordon.................................... 332
Kempf v. Magida.................................... 1171
Kempner v. Schulte................................. 854
Ken Cowden Chevrolet, Inc. v. Corts...... 483
Ken Hood Constr. Co. v. Pacific Coast Constr.,
Inc........................................... 857
Kenet v. Bailey....................................... 1153
Kennan v. Checker Taxi Co., Inc......... 82, 83
Kennedy v. Flo-Tronics, Inc................... 1133
Kennedy v. Ill. Cent. R.R. Co................... 693
Kennedy v. Parrott................................... 170
Kennedy v. Sheriff of E. Baton Rouge.................... 963, 973, 983, 984, 995
Kennedy v. Western Sizzlin Corp............ 766
Kennelly v. Burgess................................. 221
Kennerly v. Shell Oil Co.......................... 769
Kenney v. Barna........................................ 93
Kenney v. Kroger Co................................ 470
Kenney v. Liston...................................... 859
Kenney v. Wal-Mart Stores, Inc............. 936, 1001
Kennis v. Mercy Hosp. Medical Center................................................... 515
Kenny v. Southeastern Pennsylvania Transportation
Authority.................... 452
Kensington Dev. Corp. v. Israel............ 1042
Kent v. Gulf States Utils. Co................... 788
Kent v. United of Omaha Life Ins. Co........................................................
1143
Kenton v. Hyatt Hotels Corp........... 855, 856
Kentucky Fried Chicken of California, Inc. v. Superior
Court.................................. 643
Kentucky v. Graham................................ 584
Kenyon v. Abel................................. 116, 122
Keogh v. W.R. Grasle, Inc........................ 827
Keohane v. Stewart.......................... 941, 951
Keomaka v. Zakaib.......................... 522, 523
Kerans v. Porter Paint Co............... 710, 917
Kerby v. Hal Roach Studios, Inc........... 1007
Kerman v. City of New York..................... 82
Kermarec v. Compagnie Generale Transatlantique....................................
478
Kern v. Palmer Coll. of Chiropractic..... 1100
Kernan v. American Dredging Co.......... 244, 247
Kerns v. Sealy.......................................... 298
Kerr v. Corning Glass Works.................. 811
Kessel v. Leavitt................. 1053, 1054, 1055
Kessler v. Mortenson............................... 476
1251
Keyser v. Phillips Petroleum Co............. 783

Keystone Elec. Mfg. Co. v. City of Des
Moines.................................................. 365
Khalifa v. Shannon...................... 1053, 1056
Khan v. Parsons Global Servs., Ltd........ 914
Khan v. Singh.......................................... 300
Khawar v. Globe Int’l, Inc....................... 979
Kibble v. Weeks Dredging & Constr. Co..........................................................
720
Kibler v. Northern Inyo County Local Hosp.
Dist....................................................... 985
Kiesau v. Bantz..................... 941, 998, 1115
Kik v. Sbraccia......................................... 720
Kilduff v. Adams, Inc............................ 1119
Killam v. Texas Oil & Gas Corp............... 95
Killebrew v. Abbott Labs......................... 861
Killebrew v. Sun Trust Banks, Inc......... 188
Killough v. Jahandarfard........................ 693
Kilpatrick v. Bryant................................ 331
Kim v. Budget Rent A Car Systems, Inc.........................................................
341
Kimber v. Young.......................... 1120, 1122
Kimberlin v. DeLong............................... 295
Kimberlin v. PM Transport..... 217, 253, 295
Kimberly S.M. v. Bradford Central School...................................................
647
Kimble v. Carey............................... 240, 382
Kimble v. Land Concepts, Inc................. 870
Kimbrell v. Kimbrell............................. 1179
Kimco Development Corp. v. Michael D’s Carpet
Outlets..................................... 836
Kime v. Hobbs.......................................... 764
Kimes v. Grosser..................................... 857
Kimmell v. Schaefer.............................. 1125
Kinder v. Fantasy Coachworks, Ltd....... 309
Kindsfather, In re, Estate of................. 1119
King v. Allred........................................... 232
King v. Casad........................................... 234
King v. Kayak Mfg. Corp................. 419, 422
King v. Lens Creek Ltd. P’ship............... 767
King’s Daughters & Sons Circle No. Two of Greenville v. Delta Reg’l Med.
Ctr...................................................... 1112
Kings Creations Ltd. v. Conde Nast Publ’ns
Inc....................................................... 1114
Kingstown Mobile Home Park v. Strashnick................................ 1032, 1041
Kinney v. Barnes................................... 1003
Kinsman Transit Co., Petition of.... 351, 363
Kinsman v. Unocal Corp......................... 604
Kinzel v. Discovery Drilling, Inc........... 1104
Kirch v. Liberty Media Corp.................. 943, 952, 1096
Kircher v. City of Jamestown......... 574, 626
Kirchner v. Crystal.................................. 595
Kirchner v. Shooters on the Water, Inc.........................................................
663
Kirk v. Koch........................................... 1050
Kirk v. Michael Reese Hosp. and Med. Ctr................................................
502, 660
Kirkland v. Blaine County Med. Ctr...... 875
Kirkland v. Tamplin................... 1094, 1100, 1104, 1109
Kirlin v. Halverson.................................. 762
Kirsch v. Duryea.................................... 1177
Kirschbaum v. McLaurin Parking Co..... 113
Kirton v. Fields................................ 173, 414
Kitowski v. United States........................ 561
Kituskie v. Corbman.............................. 1185
Kivland v. Columbia Orthopaedic Group, LLP...............................................
333, 372
Kizer v. Harper................................ 250, 253
Kjerstad v. Ravellette Pubs., Inc............. 707
Klasch v. Walgreen Co..................... 830, 831
Klawonn v. Mitchell................................. 861
Klecan v. Countrywide Home Loans, Inc.......................................................
1071
Klein v. Gutman....................................... 128
Klein v. Klein........................................... 592
Klein v. Pyrodyne Corp.................... 787, 793
Klein v. United States............................. 480
Kleinschmidt v. Morrow........................ 1026
Klentzman v. Brady................................. 994
Kliebenstein v. Iowa Conference of the United Methodist
Church.................... 981
Kline v. 1500 Massachusetts Ave. Apt. Corp...............................................
287, 644
Kline v. Ansell........................................ 1050
Kline v. Burns.......................................... 491
Klobnak v. Wildwood Hills, Inc....... 485, 779
Klooster v. North Iowa State Bank......... 116
Klump v. Duffus..................................... 1185
Klutman v. Sioux Falls Storm................. 383
Klutschkowski v. PeaceHealth................ 875
KM, LM ex rel. v. United States............. 563
K-Mart Corp. v. Gipson........................... 300
K-Mart Corp. v. Herring.......................... 914
K-Mart Corp. v. Kyles............................ 1026
K-Mart Corp. v. Washington........... 154, 155
Knapp v. Stanford.................................... 221
Knieper v. United States....................... 1129
Knierim v. Izzo................................. 711, 712
Knight v. City of Missoula....................... 100
Knight v. Jewett............... 419, 420, 424, 425
Knight v. Schneider Nat’l Carriers, Inc.........................................................
606
Knighten v. Sam’s Parking Valet............ 655
Knitz v. Minster Mach. Co....... 807, 815, 816
Knott Corp. v. Furman............................ 454
Knoxville Optical Supply, Inc. v. Thomas................................................. 224
Knudsen v. Jensen................................. 1128
Koapke v. Kerfendal................................ 513
Kobrin v. Gastfriend................................ 985
Koch v. Norris Pub. Power Dist............... 305
Kocher v. Getz.......................................... 405
Kocontes v. McQuaid............................... 967
Kodiak Island Borough v. Exxon Corp............................................. 745,
1076
Koepnick v. Sears Roebuck & Co............ 106
Koestler v. Pollard................................. 1052
Koffman v. Garnett.................................... 70
Kohl v. City of Phoenix............................ 569
1252
Kohn v. Schiappa................................... 1183

Kolbe v. State................................... 500, 570
Koll v. Manatt’s Transp. Co.................... 249
Kollar v. Martin........................... 1092, 1096
Koll-Irvine Center Property Owners Ass’n v. County of
Orange............................. 744
Kolstad v. American Dental Ass’n.......... 862
Kolstad v. Rankin.................................... 743
Komlodi v. Picciano................................. 373
Konikoff v. Prudential Ins. Co. of Am................................................ 975, 976
Kopalchick v. Catholic Diocese of Richmond............................................. 439
Kopczynski v. Barger.............................. 474
Kopera v. Moschella................................ 327
Kopka v. Bell Telephone Co. of Pa........... 87, 101
Korando v. Uniroyal Goodrich Tire Co.................................................. 338,
839
Kordis v. Kordis....................................... 128
Kordus v. Montes..................................... 436
Korea Supply Co. v. Lockheed Martin Corp....................... 1091, 1094, 1106,
1107
Kornegay v. Thompson............................ 129
Koruba v. American Honda Motor Co..........................................................
828
Kossler v. Crisanti................................. 1033
Kotecki v. Cyclops Welding Corp............ 919
Kovach v. Caligor Midwest..................... 318
Kovacic v. Villarreal................................ 585
Kowalski v. Gratopp........................ 612, 613
Kowalski v. Rose Drugs of Dardanelle,
Inc......................................................... 830
Kowalski v. St. Francis Hosp. & Health
Ctrs......................................................... 77
Kowalsky v. Conreco Co., Inc.......... 603, 605
Kozicki v. Dragon.................................... 363
Kraemer v. Harding.................... 1102, 1103
Krahmer v. Christie’s Inc...................... 1124
Krahn v. Kinney.......................... 1190, 1191
Krajewski v. Bourque.............................. 610
Krajewski v. Enderes Tool Co................. 836
Kramer Serv., Inc. v. Wilkins................. 313
Kramer v. Chabot.................................. 1140
Kramer v. Petroleum Helicopters, Inc.........................................................
303
Kramer v. Thompson............................. 1002
Kratze v. Independent Order of Oddfellows, Garden City Lodge No.
11................... 100
Krause v. U.S. Truck Co., Inc................. 612
Krauss v. Champaign News Gazette, Inc.........................................................
979
Krauth v. Geller.............................. 605, 607
Kreidt v. Burlington N. R.R............ 218, 221
Kreski v. Modern Wholesale Elec. Supply
Co.......................................................... 607
Kreuzer v. George Washington Univ.................................................... 1105
Krieg v. Massey....................................... 615
Krinsky v. Doe 6...................................... 971
Krishnan v. Sepulveda............................ 670
Krochalis v. Insurance Co. of N. Am........ 74
Kroh v. Kroh............................................. 982
Krombein v. Gali Serv. Indus.................. 230
Kronemeyer, Estate of v. Meinig..... 688, 697
Krouse v. Graham.................................... 692
Krueger v. Austad............................ 991, 992
Krueger v. Lewis...................................... 968
Krug v. Krug.......................................... 1167
KTRK Television v. Felder...................... 980
Kubera v. Barnes & Noble Booksellers,
Inc......................................................... 302
Kubrick, United States v................. 430, 431
Kuhns v. Brugger..................................... 367
Kumar v. Hall.......................................... 435
Kumho Tire Co., Ltd. v. Carmichael....... 293
Kunsler ex rel. Kunsler v. Int’l House of Pancakes,
Inc........................................ 712
Kunz v. Allen.......................................... 1005
Kunz v. Utah Power & Light Co............... 93
Kunzie v. City of Olivette........................ 570
Kuo Feng Corp. v. Ma............................ 1121
Kuper v. Lincoln-Union Elec. Co............. 735
Kurns v. Railroad Friction Products Corp.......................................................
845
Kuwik v. Starmark Star Mktg. & Admin.,
Inc......................................................... 982
Kwansy v. United States......................... 903
L & W Engineering Co., Inc. v. Hogan.... 164
L.A. Fitness Int’l., LLC v. Mayer............ 283
L.A.C. v. Ward Parkway Shopping Ctr. Co..................................................
630, 640
L.D.G., Inc. v. Robinson......................... 1171
L.G., L.W. ex rel. v. Toms River Regional Schools Board of
Educ.......................... 647
L.L. Bean, Inc. v. Drake Publishers, Inc.......................................................
1198
L.S. Ayres & Co. v. Hicks......................... 619
La Sota v. Philadelphia Transp. Co........ 452
Label Systems Corp. v. Aghamohammadi............................... 1037
Labonte v. Hutchins & Wheeler.............. 865
Laboratory Corp. of Am. v. Hood............. 678
Labovitz v. Feinberg.............................. 1189
Lachenmaier v. First Bank Sys., Inc..... 1105
Lacher v. Superior Court....................... 1125
Lackman v. Rousselle.............................. 887
Lackner v. LaCroix................................ 1040
LaCount v. Hensel Phelps Const. Co...... 768
Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu) Ltd. P’ship......................
410, 1146
LaFage v. Jani.......................................... 685
LaFaso v. LaFaso..................................... 351
Lafayette Par. Sch. Bd. v. Cormier ex rel. Cormier.........................................
233, 234
Lahm v. Farrington................................. 203
Laird v. Nelms.......................................... 553
Lake Panorama Servicing Corp. v. Central Iowa Energy
Coop.............................. 1109
Lake Philgas Service v. Valley Bank & Trust
Co................................................ 116
Lake v. D & L Langley Trucking, Inc..... 385
Lake v. McCollum.................................... 503
Lake v. Wal-Mart Stores, Inc...... 1020, 1021
1253
Lakeview Blvd. Condo. Ass’n v. Apartment Sales

Corp............................................ 434
Lakey v. Puget Sound Energy, Inc......... 742
Lakube v. Cohen...................................... 414
LaLonde v. Eissner.................................. 578
Lam v. Global Med. Sys., Inc.................. 498
LaMantia v. Redisi................................ 1027
Lamare v. Basbanes.............................. 1176
Lamb v. State.................................... 71, 306
Lambert v. Holmberg.......................... 96, 99
Lambert v. Sears, Roebuck & Co......... 1032, 1033
Lambert v. Shearer................................. 528
Lambertson v. Cincinnati Corp.............. 919
Lambertson v. United States.................. 552
Lambrecht v. Estate of Kaczmarczyk.... 299, 304, 305
Lambrecht v. Schreyer............................ 398
Lamke v. Futorian Corp.......................... 813
LaMon v. City of Westport...................... 940
Lamp v. Reynolds............................ 343, 390
Lamson v. American Axe & Tool Co....... 416
LAN/STV v. Martin K. Eby Constr. Co................................................ 804,
1061
Lancaster v. Schilling Motors, Inc........ 1140
Lancaster v. Stevens............................. 1189
Lancaster, City of v. Chambers.............. 579
Lance Productions, Inc. v. Commerce Union
Bank..................................................... 126
Lance v. Wyeth........................................ 798
Land v. Yamaha Motor Corp.................. 434
Landeros v. Flood.................................... 571
Landers v. East Tex. Salt Water Disposal Co..................................................
321, 322
Landham v. Lewis Galoob Toys, Inc..... 1208
Landis v. Hearthmark, LLC........... 596, 841
Landmark Medical Center v. Gauthier............................................... 172
Landon v. Kroll Laboratory Specialists, Inc.................................................
624, 628
Landreneau v. Fruge............................... 396
Landry v. Bellanger......................... 163, 399
Landry v. Hilton Head Plantation Property Owners
Ass’n....................................... 466
Landskroner v. Landskroner................ 1095
Lane v. Atchison Heritage Conference Center,
Inc........................................... 482
Lane v. Gilbert Const. Co........................ 464
Lane v. Groetz......................................... 466
Lane v. Industrial Comm’n of Ariz......... 915
Lane v. MPG Newspapers............... 991, 992
Lane v. Schilling...................................... 943
Lane v. W.J. Curry & Sons................. 94, 95
Lang v. Holly Hill Motel, Inc.......... 244, 246
Lang v. Wonnenberg............................... 365
Langan v. Bellinger................................. 738
Langan v. Valicopters, Inc...................... 788
Lange v. Fisher Real Estate Dev. Corp......................................................
157
Langemo v. Montana Rail Link, Inc....... 412
Langer v. Becker......................... 1104, 1105
Langeslag v. KYMN, Inc......................... 709
Langner v. Simpson................................. 439
Lanz v. Pearson........................................ 365
LaPlace v. Briere...................................... 113
LaPorte v. Associated Indeps., Inc.......... 709
Lappe and Associates, Inc. v. Palmen.... 111, 1152
Lara v. Thomas................................ 941, 999
Larchick v. Diocese of Great Falls-Billings........................................ 381
Largey v. Rothman.................................. 517
Largosa v. Ford Motor Co........................ 486
Larini v. Biomass Industries, Inc............ 481
Larkin v. Marceau................................... 736
Larmore v. Crown Point Iron Co............. 145
Larrimore v. American Nat’l Ins. Co....... 254
Larsen Chelsey Realty Co. v. Larsen................................................. 1094
Larsen v. Banner Health Sys......... 700, 714, 730
Larson & Larson, P.A. v. TSE Indus., Inc....................................... 431, 438,
1181
Larson v. Dunn...................................... 1054
Larson v. Johns-Manville Sales Corp....................................................... 431
Larson-Murphy v. Steiner....................... 485
LaSalle Nat’l Leasing Corp. v. Lyndecon,
LLC..................................................... 1146
Lascurain v. City of Newark............ 704, 711
Laster v. Norfolk S. Ry. Co.............. 239, 477
Latzel v. Bartek................................ 353, 369
Laudermilk v. Carpenter......................... 462
Lauer v. City of New York....................... 570
Laurel v. Prince........................................ 726
Laurence v. Sollitto................................ 1187
Laurie Marie M. v. Jeffrey T.M................. 64
LaVallee v. Vermont Motor Inns, Inc...... 283
LaVine v. Clear Creek Skiing Corp......... 231
Lawnwood Med. Ctr., Inc. v. Sadow....... 960, 1001
Lawrence v. Beverly Manor..................... 694
Lawrence v. Grinde.................................. 938
Lawrence v. Meloni.................................. 117
Lawrence v. State.................................... 108
Laws v. Griep........................................... 719
Lawson v. Atwood.................................... 695
Lawson v. Kroger Co.......... 1027, 1028, 1032
Lawson v. Mitsubishi Motor Sales of America, Inc................................ 810,
1157
Layden v. Plante...................................... 411
Lazenby v. Mark’s Constr., Inc................ 608
Lazy Seven Coal Sales, Inc. v. Stone & Hinds,
P.C........................................... 1168
Leach v. Leach......................................... 592
Leach v. Shapiro...................................... 182
Lead Paint Litigation, In re..................... 746
Leaf River Forest Products, Inc. v. Harrison................................................
765
Leame v. Bray.......................................... 192
Leang v. Jersey City Bd. of Educ.......... 1011
Learning Curve Toys, Inc. v. Playwood Toys, Inc....................................
1204, 1205
1254
Leather Manufacturers’ Nat’l Bank v. Merchants’ Nat’l Bank.......................

1154
Leatherman v. Tarrant County Narcotics Intelligence and Coordination
Unit.... 586
Leavitt v. Brockton Hospital, Inc........... 346, 354, 608
Leavitt v. Glick Realty Corp................... 491
Leavitt v. Twin County Rental Co.......... 489
LeClaire v. Commercial Siding and Maintenance Co...................................
653
Leder v. Spiegel..................................... 1168
Ledvina v. Cerasani........................ 966, 974
Lee Lewis Const., Inc. v. Harrison........ 356, 770
Lee v. Chicago Transit Authority.......... 460, 462
Lee v. City of New York.......................... 499
Lee v. Crookston Coca-Cola Bottling Co.................................................. 806,
811
Lee v. Gaufin........................... 428, 434, 435
Lee v. GNLV Corp................................... 269
Lee v. Hartwig......................................... 217
Lee v. Kiku Restaurant........................... 401
Lee v. Konrad............................................ 85
Lee v. Luigi, Inc............................... 606, 609
Lee v. Mitchell....................................... 1043
Lee v. State Farm Mut. Ins. Co.............. 722
Lee v. Stewart.......................................... 101
Lees v. Lobosco........................................ 612
Lees v. Sea Breeze Health Care Ctr., Inc.........................................................
709
Lefemine v. Wideman.............................. 582
LeFiell Mfg. Co. v. Superior Court......... 919
LeFlore v. Reflections of Tulsa, Inc...... 1140
Lega Siciliana Social Club, Inc. v. St.
Germaine.............................................. 953
Legg v. Chopra......................................... 511
Lehmuth v. Long Beach Unified Sch. Dist.......................................................
233
Leibreich v. A.J. Refrigeration, Inc........ 368
Leichtamer v. American Motors Corp.... 807
Leichtman v. WLW Jacor Commc’ns, Inc.....................................................
67, 68
Leiendecker v. Asian Women United of
Minnesota.......................................... 1047
Leiken v. Wilson...................................... 259
Leiner v. First Wythe Ave. Serv. Station,
Inc......................................................... 794
Leitinger v. DBart, Inc............................ 859
LeJeune v. Rayne Branch Hosp.............. 505
Leleux v. United States........................... 563
Lemmerman v. Fealk.............................. 439
Lemon v. Edwards................................... 484
Lemon v. Harlem Globetrotters Int’l, Inc.......................................................
1006
Lenard v. Dilley....................................... 221
Lennon v. Metro. Life Ins........................ 242
Lentino v. Fringe Emp. Plans, Inc........ 1169
Lenz Hardware, Inc. v. Wilson............... 948
Leo Publications, Inc. v. Reid................ 1206
Leo v. Hillman......................................... 715
Leonard, Estate of v. Swift.................... 1179
Leonard v. Behrens.................. 420, 425, 426
Leonard v. Dorsey & Whitney, LLP..... 1175, 1176
Leonard v. John Crane, Inc..................... 720
Leonard v. State....................... 501, 502, 576
Leonard v. Walthall............................... 1183
Leonardo v. Sley Sys. Garages, Inc......... 961
Leordeanu v. American Protection Ins.
Co.......................................................... 914
LePage v. Horne............................... 229, 303
Lepucki v. Lake County Sheriff’s Dep’t......................................................
259
Lerner Shops of Nevada, Inc. v. Marin.................................................... 154
Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. Co..................... 396,
740, 794
LeRoy v. Allen, Yurasek & Merklin...... 1175
Lester v. Buchanen...................... 1027, 1028
Lestina v. West Bend Mut. Ins. Co......... 426
Lev v. Beverly Enterprises—Massachusetts,
Inc......................................................... 637
Levaquin Products Liability Litigation, In
re........................................................... 833
Level 3 Commc’ns, LLC v. Liebert Corp.....................................................
1126
Levey v. Yamaha Motor Corp.................. 828
Levi v. Southwest La. Elec. Membership Coop..............................................
271, 276
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United
States Fire Ins. Co........................................... 967
Levine v. Chemical Bank......................... 611
Levine v. Peoples Broadcasting Corp...... 760
Levine v. Russell Blaine Co..................... 285
Levy v. Gandone....................................... 973
Levy v. Louisiana..................................... 695
Lewellen v. Franklin................................ 875
Lewis Operating Corp. v. Super. Ct........ 413
Lewis v. American Cyanamid Co............ 826
Lewis v. B & R Corp................................. 254
Lewis v. Coffing Hoist Div., Duff-Norton
Co.......................................................... 805
Lewis v. Cowen....................................... 1148
Lewis v. Equitable Life Assurance Soc’y of the
U.S.................................................. 943
Lewis v. Gilmore...................................... 919
Lewis v. Hiatt........................................... 694
Lewis v. Lead Indus. Ass’n, Inc............... 329
Lewis v. Miller............................................ 59
Lewis v. Puget Sound Power & Light Co..........................................................
396
Lewis v. White........................................ 1031
Lexmark Intern., Inc. v. Static Control Components, Inc.......................
1200, 1208
Li v. Yellow Cab Co. of Cal...................... 386
Libby v. Eighth Judicial Dist. Court....... 432
Liberman v. Gelstein............... 961, 982, 984
Liberty Bank of Seattle, Inc. v. Henderson............................................. 969
Liberty Lobby, Inc. v. Anderson.............. 955
Liberty Mut. Ins. Co. v. Steadman.......... 708
Liberty Nat’l Life Ins. Co. v. Weldon....... 637
1255
Liberty Northwest Ins. Co. v. Spudnik Equipment

Co...................................... 811
Liberty v. State Dep’t of Transp............. 481
Library of Congress v. Shaw................... 551
Lickteig v. Alderson, Ondov, Leonard &
Sween................................................. 1183
Lickteig v. Kolar................................ 54, 594
Lieberman v. Employers Ins. of Wausau.............................................. 1167
Lieberman v. Powers............................... 781
Lifson v. City of Syracuse........................ 220
Liggett v. Young.................................... 1168
Lightfoot v. School Administrative Dist. No.
35.......................................................... 564
Lillie v. Thompson................................... 650
Limbaugh v. Coffee Med. Ctr......... 538, 540, 543
Limited Stores, Inc. v. Wilson-Robinson................................................. 76
Limone v. United States............... 562, 1027
Lincoln Elec. Co. v. McLemore................ 431
Lincoln v. Clark Freight Lines, Inc........ 295
Lindholm v. Brant................................... 124
Lindquist v. City of Jersey City Fire Dep’t.....................................................
918
Lindsay Mfg. Co. v. Universal Surety
Co.......................................................... 429
Lindsey v. E & E Automotive & Tire Service, Inc...........................................
629
Lindstrom v. City of Corry...................... 575
Linegar v. Armour of America, Inc........ 813, 818
Lingenfelter v. Astrue............................. 924
Lingle v. Dion.......................................... 253
Lingo v. Lingo........................................ 1146
Lininger v. Eisenbaum............................ 678
Link v. Wabash Co................................ 1164
Linscott v. Foy....................................... 1047
Linthicum v. Nationwide Life Ins. Co.... 862
Lions Eye Bank of Tex. v. Perry............. 729
Lipham v. Federated Dep’t Stores, Inc.........................................................
464
Lipman v. Atlantic Coast Line R.R......... 703
Lippay v. Christos................................. 1033
Lips v. Scottsdale Healthcare Corp..... 1070, 1159
Lipson v. Superior Court of Orange County (Berger)................................
605, 609, 610
Liriano v. Hobart Corp.................... 326, 828
Lisa M. v. Henry Mayo Newhall Mem. Hosp.............................................
761, 762
Littau v. Midwest Commodities, Inc.... 1136
Little Rock Newspapers, Inc. v. Dodrill........................................ 936, 1001
Little Rock Newspapers, Inc. v. Fitzhugh............................................... 951
Little Rock, City of v. Cameron.............. 200
Little v. Chesser.................................... 1102
Little v. Gibbs........................................ 1153
Little v. Liquid Air Corp......................... 292
Littlefield v. Schaefer.............................. 411
Liu v. Allen.............................................. 250
Livingston v. Adams........................ 193, 194
Livingstone v. North Belle Vernon Borough...............................................
1036
Livsey v. Salt Lake County.................... 1013
LLMD of Mich., Inc. v. Jackson-Cross Co.............................................. 1024,
1074
Lloyd v. General Motors Corp....... 803, 1086
Lloyd v. Sugarloaf Mtn. Corp.................. 413
Local Joint Exec. Bd. of Las Vegas, Culinary Workers Union, Local No.
226 v. Stern................................................... 1063
Locke v. Ford............................................ 452
Locke, United States v............................. 442
Lockett v. Bi-State Transit Auth............. 657
Lockhart v. Airco Heating & Cooling,
Inc......................................................... 624
Lockton v. O’Rourke............................... 1181
Lockwood v. Commissioner Soc. Sec. Admin...................................................
924
Lodge v. Arett Sales Corp................ 340, 347
Lodl v. Progressive Northern Ins. Co...... 574
Loe v. Lenhardt........................................ 788
Loeb v. Rasmussen........................... 232, 244
Loevsky v. Carter..................................... 232
Loftus v. Dehail................................ 352, 362
Loge v. United States....................... 553, 555
Logerquist v. Danforth............................ 439
Logsdon v. Isco Co.................................... 915
Logusak v. City of Togiak, Estate of....... 579
Lokey v. Breuner...................................... 624
Lolley v. Charter Woods Hosp. Inc.......... 164
Lomando v. United States....................... 552
Lombard v. Colorado Outdoor Educ. Center,
Inc......................................................... 471
Lombard v. United States....................... 561
Lombardo v. Doyle, Dane & Bernbach,
Inc....................................................... 1209
Long Beach, City of v. Bozek................... 954
Long v. Daly............................................. 254
Long v. Hacker......................................... 775
Long v. Patterson..................................... 615
Longbehn v. Schoenrock........ 942, 999, 1002
Loosli v. City of Salem................. 1068, 1124
Lopatkovich v. City of Tiffin............ 253, 483
Lopes v. Farmer..................................... 1035
Lopez v. Arizona Water Co., Inc.............. 630
Lopez v. Baca........................................... 254
Lopez v. No Kit. Realty Co....................... 392
Lopez v. Southern California Rapid Transit
Dist........................................................ 452
Lopez v. Superior Court........................... 490
Lord v. Lovett........................................... 332
Lord, State v............................................. 140
Lorenz v. Air Illinois, Inc......................... 689
Lorenzetti, United States v..................... 920
Lorenzo v. Wirth........................................ 10
Los Angeles Airways, Inc. v. Davis....... 1105
Los Angeles Police Dep’t v. United Reporting Publ’g Co...........................
1018
Losee v. Buchanan................................... 785
Losee v. Clute........................................... 799
Lotring v. Philbrook............................... 1051
1256
Lott v. Levitt............................................ 941
Lough v. BNSF Ry. Co............................ 313
Lough v. Rolla Women’s Clinic, Inc........ 209
Loughry v. Lincoln First Bank............... 863
Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC...............................
1196
Louisiana State Bar Association v. Hinrichs................................................
112
Louisiana, State of ex rel. Guste v. M/V Testbank................. 746, 1067,
1071, 1082
Louisville & J. Ferry Co. v. Nolan.......... 451
Louisville Gas & Elec. Co. v. Roberson............................................... 628
Louk v. Isuzu Motors, Inc....................... 382
Lourim v. Swensen.................................. 762
Love v. Walker......................................... 509
Lovejoy v. AT&T Corp........................... 1130
Lovelace Med. Ctr. v. Mendez......... 396, 682
Lovelace v. Anderson............................... 759
Lovelace v. City of Shelby....................... 572
Lovely v. United States........................... 560
Lovett v. Hobbs........................................ 192
Lower Commerce Ins. Inc. v. Halliday... 745
Lowery v. Echostar Satellite Corp......... 265, 267, 390
Lowney v. Knott...................................... 117
Lownsbury v. VanBuren......................... 498
Loyd v. Herrington.................................. 769
Lozano v. Lozano................................... 1054
Lozoya v. Sanchez.................................... 721
LPP Mortg., Ltd. v. Marcin, Inc............ 1111
Lubecki v. City of New York........... 896, 903
Lubin v. Johnson................................... 1116
Lucas v. Hamm............................ 1170, 1175
Lucas v. Hesperia Golf & Country Club......................................................
244
Lucero v. Holbrook.......................... 204, 343
Luchejko v. City of Hoboken................... 483
Luciano v. Olsten Corp............................ 874
Lucky 7, LLC v. THT Realty, LLC....... 1135
Lugo v. Ameritech Corp., Inc.................. 471
Lugtu v. Cal. Highway Patrol........ 214, 292, 366, 619
Lulay v. Parvin........................................ 653
Lumbermens Mut. Cas. Co. v. Thornton.................................... 206, 1125
Lumley v. Gye.............................. 1094, 1099
Luna v. Vela............................................. 423
Lunceford v. Peachtree Cas. Ins. Co....... 864
Lunda v. Matthews................................... 86
Lundy v. Adamar of New Jersey, Inc..... 621
Lunsford v. Board of Educ. of Prince George’s County...................................
646
Luoni v. Berube....................................... 468
Lurgio v. Commonwealth Edison Co..... 609, 610
Lusby v. Lusby......................................... 593
Luther v. City of Winner......................... 472
Lutheran Hosps. & Homes Soc’y of Am. v.
Yepsen.................................................. 599
Luthringer v. Moore................................ 788
Lutz v. Watson......................................... 957
Lutzkovitz v. Murray............................... 225
Lybrand v. Trask.............................. 708, 709
Lynch v. City of Alhambra..................... 1036
Lynch v. McQueen................................. 1112
Lynch v. Rosenthal.................................. 392
Lynch v. Scheininger....................... 406, 676
Lyon v. Barrett......................................... 919
Lyon v. Carey........................................... 763
Lyon v. Ranger III.................................... 884
Lyons v. Grether...................................... 531
Lyons v. Midnight Sun Transp. Servs., Inc.................................................
221, 382
Lyons v. Nichols....................................... 989
Lyons v. Vaughan Reg’l Med. Ctr., LLC.......................................................
720
Lytle v. Bexar County, Tex...................... 162
M & D, Inc. v. McConkey....................... 1129
M.A. v. United States....................... 207, 680
M.G. v. Time Warner, Inc............ 1016, 1019
M.H. v. Caritas Family Servs.................. 728
M.W. v. Dep’t of Soc. & Health Servs...... 248
M/V DG Harmony, In re.......................... 787
Ma v. City & Cty. of San Francisco........ 209, 210
Mabry, Sias ex rel. v. Wal-Mart Stores,
Inc......................................................... 596
Mabus v. St. James Episcopal Church................................ 454, 455, 1143
MacBoyle v. City of Parma.................... 1035
MacDonald v. Clinger............................ 1015
MacDonald v. Ortho Pharmaceutical
Corp....................................................... 829
MacDonald v. Riggs......................... 951, 959
MacDonald v. Thomas M. Cooley Law
Sch....................................................... 1136
MacDougald v. Garber............................. 856
MacElree v. Philadelphia Newspapers, Inc.................................................
946, 951
MacFawn v. Kresler............................... 1034
MacGregor v. Walker....................... 203, 624
MacGuire v. Elometa Corp...................... 126
Machado v. City of Hartford.................... 266
Macia v. Microsoft Corp......................... 1114
Macias v. Saberhagen Holdings, Inc....... 825
Macias v. State of California................... 831
Mack Trucks, Inc. v. Tackett................... 890
Mack v. Carmack............................. 671, 686
Mack v. County of Rockland.................... 917
Mackintosh v. Carter............................. 1056
MacPherson v. Buick Motor Co.............. 800, 1070
Macy v. New York World-Telegram Corp.....................................................
1000
Madden v. C & K Barbecue Carryout,
Inc......................................................... 639
Mader v. United States............................ 551
Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc............ 209, 1067,
1070
Madison v. Ducktown Sulphur, Copper & Iron
Co.................................................. 748
Madison v. Frazier................................... 997
Madlem v. Arko...................................... 1180
1257
Madrid v. Lincoln Cnty. Med. Ctr.......... 726

Maggard v. Conagra Foods, Inc.............. 612
Maglioli v. J.P. Noonan Transp., Inc...... 219
Magna Trust Co. v. Illinois Cent. R.R.... 401
Magnuson v. Billmayer........................... 141
Magnuson v. O’Dea............................... 1053
Magnusson v. New York Times Co......... 957
Mahan v. New Hampshire Dep’t of Administrative Services......................
569
Mahan v. State........................................ 224
Mahon v. Heim........................................ 236
Mahoney v. Carus Chem. Co., Inc......... 610, 613
Mahoney v. Nebraska Methodist Hosp..................................................... 859
Mahowald v. Minnesota Gas Co..... 787, 789
Maiden v. Rozwood.................................. 579
Maison de France v. Mais Oui!, Inc......... 962
Majca v. Beekil........................................ 726
Majestic Realty Associates, Inc. v. Toti Contracting
Co..................................... 768
Major v. United States............................ 561
Makas v. Hillhaven, Inc.......................... 547
Malaney v. Hannaford Bros. Co.............. 469
Malatesta v. Lowry.................................. 462
Malcolm v. Evenflo Co., Inc............ 289, 805, 844, 870
Maldanado, In re Estate of..................... 694
Maldonado v. Sinai Med. Group, Inc...... 855
Maldonado v. Southern Pac. Transp. Co..........................................................
620
Malen v. MTD Products, Inc................... 840
Malley v. Briggs............................. 585, 1029
Malmberg v. Lopez.................................. 293
Malolepszy v. State................................. 352
Maloney v. Stone..................................... 115
Malouf v. Dallas Athletic Country Club........................................................
87
Maltman v. Sauer.................... 609, 610, 612
Manchack v. Willamette Indus., Inc....... 249
Mandel v. Geloso..................................... 735
Mandel v. The Boston Phoenix, Inc........ 991
Mandel, Resnik & Kaiser, P.C. v. E.I. Electronics, Inc..................................
1177
Maneely v. General Motors Corp........... 827, 828
Maness v. Gordon.................................... 439
Mangieri v. Prime Hospitality Corp....... 453
Mangold v. Ind. Dep’t of Nat’l Res.......... 383
Mangum, City of v. Brownlee................. 783
Manley v. Sherer..................................... 327
Mann v. Cincinnati Enquirer................ 1021
Manning v. Grimsley..................... 80, 81, 82
Manning v. Michael................................. 136
Manno v. McIntosh.................................. 279
Manor Care, Inc. v. Douglas................... 544
Mansfield v. Circle K. Corp............. 214, 251
Manske v. Workforce Safety & Ins......... 918
Mansur v. Ford Motor Co................ 809, 812
Mansur v. Podhurst Orseck, P.A.......... 1166
Mantooth v. Richards............................ 1054
Manuel v. Wilka.................................... 1025
Manufacturers Trust Co. v. Nelson......... 111
Manufacturing Research Corp. v. Greenlee Tool
Co................................................ 1103
Maples Lanes, Inc. v. New Media Corp............................................... 977,
981
Marble v. Chapin............................. 940, 945
Marcel v. Placid Oil Co............................ 861
Marchant v. Cook................................... 1122
Marchbanks v. Borum............................... 61
Marchetti v. Kalish.................................. 425
Marcil v. Kells.......................................... 958
Marcinczyk v. State of N.J. Police Training
Comm’n................................................. 414
Marciniak v. Lundborg.................... 682, 683
Marcone v. Penthouse Int’l Magazine for
Men....................................................... 956
Marcotte v. Timberlane/Hampstead Sch.
Dist........................................................ 693
Marcum v. Bowdens................................. 664
Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP................................
1130
Marcus v. Liebman.................................. 177
Maresh v. State........................................ 368
Marin Tug & Barge, Inc. v. Westport Petroleum, Inc.......................... 1095,
1100
Marioenzi v. DiPonte, Inc........................ 478
Mark v. King Broad. Co........................... 979
Mark v. Seattle Times............................. 938
Mark v. State ex rel. Dep’t of Fish and
Wildlife................................................. 740
Markarian v. Simonian............................ 489
Markle v. Hacienda Mexican Restaurant............................................ 468
Markowitz v. Helen Homes of Kendall
Corp....................................................... 469
Marks v. St. Luke’s Episcopal Hosp........ 527
Markwell v. Whinery’s Real Estate, Inc.........................................................
447
Marlene F. v. Affiliated Psychiatric Med. Clinic,
Inc.............................................. 713
Marley v. Providence Journal Co............ 954
Marmet Health Care Center, Inc. v. Brown....................................................
538
Marple v. Sears, Roebuck & Co............... 381
Marquay v. Eno................ 246, 248, 251, 571
Marquis v. State Farm Fire & Cas. Co..........................................................
657
Marriage of Cutler, In re....................... 1119
Marrogi v. Howard....................... 1024, 1074
Marsh v. Colby......................................... 167
Marsh v. Tilley Steel Co.......................... 774
Marshak v. Marshak.............................. 1055
Marshall v. Burger King Corp........ 205, 207, 208, 209, 638
Marshall v. Montgomery County Children Services
Bd........................................... 649
Marshall v. Nugent.................. 353, 366, 371
Marshall v. Yale Podiatry Group............ 511
Marsingill v. O’Malley............. 293, 504, 520
Marston v. Minneapolis Clinic of Psychiatry and
Neurology.............................. 757, 762
Marten’s Chevrolet, Inc. v. Seney......... 1122
1258
Martignetti v. Haigh-Farr Inc................ 901

Martin & Martin, Inc. v. Bradley Enters.,
Inc....................................................... 1128
Martin County Coal Corp. v. Universal Underwriters Ins.
Co........................... 414
Martin Luther King, Jr., Center for Social Change, Inc. v. American
Heritage Products, Inc............................ 1208, 1209
Martin v. Abbott Labs............................. 330
Martin v. Altman..................................... 253
Martin v. Atlantic Coast Line R.R. Co..........................................................
691
Martin v. Brady....................................... 577
Martin v. Chicago Transit Authority...... 450
Martin v. Christman............................... 780
Martin v. Cincinnati Gas and Elec. Co.................................................. 485,
652
Martin v. City of Albany............. 1028, 1033
Martin v. City of Gadsden....................... 482
Martin v. City of Washington, Mo.......... 466
Martin v. Clements............................... 1180
Martin v. Estrella............................ 132, 135
Martin v. Hacker..................................... 828
Martin v. Heinold Commodities, Inc.... 1135
Martin v. Herzog............................. 243, 247
Martin v. Houck........................................ 75
Martin v. Keeley & Sons, Inc................ 1161
Martin v. Lancaster Battery Co., Inc..... 921
Martin v. Little, Brown and Co............ 1203
Martin v. Marciano.................................. 664
Martin v. Naik......................................... 696
Martin v. Northwest Washington Legal
Services.............................................. 1184
Martin v. Ohio Cnty. Hosp. Corp.... 719, 720
Martin v. Rankin Circle Apartments..... 492
Martin v. Reynolds Metals Co........... 89, 90, 736, 1113
Martin v. Roy........................................... 957
Martin v. United States.......................... 893
Martin v. Yeoham.................................... 132
Martin v. Ziherl....................................... 402
Martin, In re............................................ 174
Martinelli v. Bridgeport Roman Catholic Diocesan Corp..............................
180, 455
Martinez v. California................................. 3
Martinez v. City of Schenectady........... 1034
Martinez v. Indus. Comm’n of Ariz......... 916
Martinez v. Lewis.................................... 499
Martinez v. Maruszczak.......................... 569
Martinez v. New York City Transit Auth......................................................
295
Martinez v. Robledo................................. 857
Martinez v. The Port Authority of New York and New
Jersey.................................. 1026
Martinez v. Woodmar IV Condo. Homeowners Ass’n....................... 208, 643
Martino v. Wal-Mart Stores, Inc........... 1160
Martishius v. Carolco Studios, Inc......... 382
Marvin Lumber & Cedar Co. v. PPG Indus.,
Inc....................................................... 1080
Marx v. Huron Little Rock...................... 453
Mary M. v. City of Los Angeles....... 543, 753
Maryland Cas. Co. v. Baker..................... 763
Masaki v. General Motors Corp.............. 719
Mason v. City of Mt. Sterling.......... 475, 477
Mason v. Sportsman’s Pub...................... 761
Masquat v. Maguire................................. 519
Massengale v. Pitts.................................. 720
Massengill v. Yuma County..................... 570
Massey v. ConAgra Foods, Inc................. 808
Masson v. New Yorker Magazine, Inc................................................. 956,
995
Masterson v. Stambuck........................... 599
Mastland, Inc. v. Evans Furniture, Inc.........................................................
233
Mathias v. Accor Econ. Lodging, Inc........ 17, 865
Mathias v. Denver Union Terminal Ry.
Co.......................................................... 467
Mathis v. Cannon........................... 939, 1003
Mathis v. Daly.......................................... 994
Mathis v. Exxon Corp.............................. 739
Mathis v. Massachusetts Elec. Co........... 477
Matkovic v. Shell Oil Co.......................... 793
Matsumoto v. Matsumoto...................... 1054
Matsuyama v. Birnbaum................. 294, 333
Mattco Forge, Inc. v. Arthur Young & Co........................................................
1074
Mattel, Inc. v. MCA Records, Inc......... 1196, 1198
Matthews v. Blue Cross and Blue Shield of Michigan......................... 1027,
1030, 1032
Matthews v. Remington Arms Co., Inc.........................................................
839
Matthies v. Mastromonaco.............. 519, 520
Matthiessen v. Vanech............................. 399
Mattingly v. Sheldon Jackson Coll........ 1076
Mattox v. Life Care Centers of America, Inc.................................................
512, 539
Mattox v. State Dep’t of Corrections....... 645
Matzan v. Eastman Kodak Co............... 1151
Maunz v. Perales...................................... 395
Maurer v. Speedway, LLC....................... 255
Mauro v. Raymark Indus., Inc................ 334
Mavrikidis v. Petullo........................ 764, 767
Mavrogenis, Lester ex rel. v. Hall........... 660
Maybee v. Jacobs Motor Co., Inc........... 1135
Mayberry, State v............................ 690, 691
Maye v. Yappen.......................................... 95
Mayfield v. Acme Barrel Co................... 1158
Mayfield-Brown v. Sayegh....................... 597
Mayflower Indus. v. Thor Corp............. 1041
Mayhue v. Sparkman............................... 332
Mayle v. Ohio Dep’t of Rehab. & Corr............................................... 244, 245
Mayor and Aldermen of Knoxville, State v...................................................
159
Mayor of Savannah v. Mulligan.............. 159
Mazda Motor Corp. v. Lindahl................ 840
Mazon v. Krafchick................................ 1175
Mazzacano v. Estate of Kinnerman........ 662
MBank El Paso v. Sanchez.............. 151, 769
Mbarika v. Board of Supervisors of La. State
Univ............................................. 941
1259
McAfee v. Cole......................................... 439

McAlister v. Carl..................................... 856
McAllen, City of v. De La Garza............. 486
McAllister v. Ha...................................... 679
McAllister, Estate of v. United States................................................... 559
McAuley v. Int’l Bus. Mach. Corp......... 1125
McBride v. Bennett................................. 575
McBride v. General Motors Corp............ 867
McBride v. New Braunfels Herald-Zeitung.................................................
956
McCabe v. American Honda Motor Co..........................................................
812
McCabe, United States v......................... 171
McCain v. Florida Power Corp................ 338
McCall v. Owens...................................... 116
McCall, Estate of ex rel. v. United States........................................... 526,
875
McCamey v. District of Columbia Dep’t of Employment
Servs............................... 916
McCandless v. State.................................. 83
McCann v. Wal-Mart Stores, Inc.............. 75
McCart v. Muir........................................ 899
McCarthy v. Olin Corp............................ 805
McCarthy v. Volkswagen of America,
Inc......................................................... 172
McCartney v. Pawtucket Mut. Ins.......... 224
McCarty v. Phesant Run, Inc.......... 276, 281
McCathern v. Toyota Motor Corp........... 809
McCay v. Philadelphia Elec. Co.............. 390
McClellan v. Health Maintenance Organization of Pa...............................
535
McClenahan v. Cooley............................. 363
McClinton v. Delta Pride Catfish, Inc.......................................................
1032
McClinton v. White................................. 691
McClosky v. Martin............................... 1068
McClung v. Delta Square Ltd. P’ship..... 641
McClure v. Johnson................................. 449
McCollum v. D’Arcy................................. 439
McColm-Traska v. Baker........... 1165, 1172, 1174
McComish v. DeSoi.................................. 283
McConkey v. Aon Corp.................. 728, 1139
McConnell v. Cosco.................................. 829
McConnell v. Hunt Sports Enters........ 1091
McConnell v. Williams.................... 774, 775
McCord v. Bailey................................... 1190
McCormick v. Carrier.............................. 247
McCormick v. Kopmann.......................... 690
McCourt v. Abernathy............................. 694
McCoy v. Feinman....................... 1180, 1182
McCoy v. Taylor Tire Co.......................... 135
McCracken v. O.B. Sloan.................... 64, 67
McCracken v. Walls-Kaufman................ 180
McCraney v. Flanagan.............................. 70
McCrystal v. Trumbull Mem’l Hosp....... 393
McCullough v. Antolini........................... 583
McCullough v. Visiting Nurse Serv. of S. Me.,
Inc................................................. 950
McCune v. Neitzel................... 941, 947, 959
McCurcheon v. Moran............................. 992
McCutchen v. McCutchen...................... 1050
McDaniel v. Gile....................................... 180
McDaniel, In re...................................... 1156
McDermott v. Reynolds......................... 1051
McDonald v. Hampton Training School for
Nurses........................................... 764, 765
McDonald v. Haskins............................... 583
McDonald v. Mass. Gen. Hosp................. 597
McDonald v. Price.................................... 690
McDonald v. Smith.................................. 984
McDonald’s Corp. v. Ogborn...................... 75
McDougald v. Perry......................... 302, 305
McDougall v. Lamm................................. 714
McEachern v. Black............................... 1035
McEvoy v. Group Health Co-op of Eau
Claire.................................................... 535
McFadden v. Haritatos............................ 828
McFarland v. Bruno Mach. Corp............. 823
McFarland v. Kahn.................................. 280
McFarlane v. City of Niagara Falls......... 747
MCG Health, Inc. v. Casey...................... 498
McGanty v. Staudenraus....................... 1106
McGarry v. Sax........................................ 422
McGathey v. Brookwood Health Services,
Inc......................................................... 509
McGee v. A C & S, Inc.............................. 693
McGee v. McGee....................................... 593
McGettigan v. National Bank of Washington................................... 476, 477
McGill, Estate of v. Albrecht................... 548
McGonigal v. Gearhart Indus., Inc.......... 305
McGowan v. Estate of Wright................. 692
McGrath v. SNH Dev., Inc............... 411, 412
McGrath v. State Dep’t of Pub. Safety.................................................... 917
McGregor v. Barton Sand & Gravel,
Inc........................................................... 97
McGregor v. Marini.................................. 233
McGuire v. Hodges........................... 244, 246
McHaffie v. Bunch................................... 900
MCI Sales and Service, Inc. v. Hinton.... 846
McIntire v. Lee....................................... 1170
McIntyre v. Balentine.............................. 478
McKay v. Wilderness Dev’t, LLC............ 700
McKay’s Family Dodge v. Hardrives....... 405
McKee v. Laurion............................. 948, 997
McKellips v. Saint Francis Hosp., Inc..... 333
McKenna v. Wolkswagenwerk Aktiengesellschaft................................ 366
McKenney, In re, Estate of.......... 1122, 1128
McKennon v. Nashville Banner Pub. Co.............................................. 1035,
1101
McKenzie v. Egge..................................... 489
McKenzie v. Hawai’i Permanente Med. Group, Inc............................. 500,
535, 659
McKenzie v. S K Hand Tool Corp............ 810
McKinley v. Flaherty............................... 118
McKinney v. Okoye.............. 966, 1025, 1027
McKinsey v. Wade............................ 143, 144
McKinstry v. Valley Obstetrics-Gynecology
Clinic..................................................... 670
McKnight v. Dean.............. 1170, 1174, 1175
1260
McKnight, State v................................... 675

McKown v. Wal-Mart Stores, Inc............ 764
McLain v. Mariner Health Care, Inc...... 545
McLain v. Schweiker............................... 924
McLane v. Northwest Natural Gas. Co..........................................................
788
McLaughlin v. Chicago, M., St. P. & P. Ry.
Co.......................................................... 853
McLaughlin v. Sullivan........................... 372
McLaughlin v. Sy..................................... 505
McLaughlin v. Williams........................ 1119
McLean v. City of New York................... 571
McLean v. Colf......................................... 150
McLean v. Kirby Co., a Div. of Scott Fetzer
Co.................................................. 363, 768
McLeod v. Grant County School Dist. No. 128................................................
646, 647
McMackin v. Johnson County Healthcare
Ctr........................................................ 333
McMahon v. Bergeson............................. 732
McMahon v. N.Y., N.H. & H.R. Co........ 232, 393
McMillan v. City of New York................ 853
McMillan v. Durant................................. 530
McMillan v. Mahoney...................... 328, 329
McMullen v. Ohio State Univ. Hosp....... 860
McNair v. Jones....................................... 780
McNamara v. Honeyman................ 394, 401
McNeil Nutritionals, LLC v. Heartland Sweeteners,
LLC................................ 1199
McNulty v. City of New York.......... 501, 661
McPherson v. McPherson........................ 177
McPherson v. Tamiami Trail Tours, Inc.........................................................
452
McQuade v. Draw Tite, Inc..................... 919
McQuaig v. Tarrant................................. 264
McQuay v. Guntharp....................... 709, 710
McQuirk v. Donnelley............................. 970
McQuitty v. Spangler.............................. 520
McRae v. Group Health Plan, Inc........... 430
McSurely v. McClellan.......................... 1012
McSwane v. Bloomington Hosp. & Healthcare Sys............................. 380,
638
McVicar v. W.R. Arthur & Co................. 461
McWhirt v. Heavey................................ 1174
McWilliams v. Parham............................ 286
Mead v. Legacy Health System.............. 498
Meade v. Cedarapids, Inc............ 1116, 1135
Meador v. Cabinet for Human Resources............................................. 650
Meadors v. Still................................ 430, 439
Meadowcraft Indus., Inc......................... 605
Meadows v. Blake.................................... 687
Meadows v. Union Carbide Corp............ 436
Mealy v. B-Mobile, Inc............................ 721
Meaney v. Loew’s Hotels, Inc.................. 957
Mecca v. Shang...................................... 1124
Medasys Acquisition Corp. v. SDMS, P.C......................................................
1140
Media Gen., Inc. v. Tomlin.................... 1122
Medical Informatics Eng’g, Inc. v. Orthopaedics Ne., P.C.........................
966
Medical Lab. Mgmt. Consultants v. American Broad. Cos., Inc....... 1009,
1092
Medtronic, Inc., Sprint Fidelis Leads Products Liability Litigation, In re.....
846
Medtronic, Inv. v. Lohr............................ 847
Medved v. Glenn...................................... 439
Meier ex rel. Meier v. Champ’s Sport Bar & Grill,
Inc................................................ 251
Meier v. D’Ambose................................... 489
Meiers v. Fred Koch Brewery.................. 606
Meinhard v. Salmon..................... 1144, 1145
Meinze v. Holmes..................................... 498
Meistrich v. Casino Arena Attractions,
Inc......................................................... 418
Mel Foster Co. Properties, Inc. v. American Oil Co......................................
98, 100, 735
Meland v. Youngberg............................. 1136
Melin-Schilling v. Imm.................... 753, 760
Melville v. Southward.............................. 511
Melvin v. Reid........................................ 1017
Memorial Hosp. of S. Bend, Inc. v. Scott......................................................
223
Memphis Light, Gas and Water Div. v.
Goss....................................................... 486
Memphis Publ’g Co. v. Nichols................ 995
Mendelowitz v. Neisner........................... 145
Mendillo v. Bd. of Educ. of E. Haddam................................................ 719
Menefee v. Columbia Broad. Sys., Inc.......................................................
1114
Mengwasser v. Anthony Kempker Trucking, Inc........................................
352
Mensink v. American Grain.................... 468
Meracle v. Children’s Serv. Soc’y of Wis................................................ 678,
681
Merando v. United States........................ 557
Mercer Mut. Ins. Co. v. Proudman.......... 813
Mercer v. Cosley....................................... 963
Mercer v. Vander

Hornbook on Torts (Hornbooks) - Dan Dobbs

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WEST ACADEMIC PUBLISHING’S

LAW SCHOOL ADVISORY BOARD

MARY KAY KANE

To all my family—Patsy Waterfall, Anne Butterfield, Kate

To Diane, Olivia, Dorothy and Rose.

To Daniel, Harrison and David, with love and admiration.

This hornbook is intended to provide a single-volume overview

On the other hand, this book does occasionally offer comments

PART III. NEGLIGENT PHYSICAL HARMS TO PERSONS

B. Duty Based on Defendant’s Relationship to Plaintiff

PART VI. VICARIOUS LIABILITY, STRICT LIABILITY,

CHAPTER 36. ALTERNATIVE SYSTEMS FOR

F. Economic Harms in Special Relationships

PART II. INTENTIONAL TORTS TO PERSONS OR

CHAPTER 6. INTENTIONAL INTERFERENCE WITH

CHAPTER 14. ACTUAL HARM & FACTUAL CAUSE

CHAPTER 16. FAULT OF THE PLAINTIFF

PART IV. EXPANDED OR LIMITED DUTIES OF CARE IN

§ 21.9 Informed Consent: Underlying Principle and Elements

§ 23.4 Individual Immunities

CHAPTER 28. WRONGFUL DEATH AND SURVIVAL

§ 31.7 Apparent Agency and Agency by Estoppel

PART VII. DAMAGES, APPORTIONMENT, AND

C. Other Injury Systems

SUBPART A. DIGNITARY TORTS

§ 39.3 Instigating or Continuing the Criminal Proceeding

§ 42.1 The Intentional Interference Tort

CHAPTER 45. LEGAL MALPRACTICE

INTRODUCING TORT LAW

DEFINING TORT LAW

§ 1.1 Defining Torts

contract, or to mislead a person by misrepresenting material

Expanding and limiting liability for fault. Although fault of

unless the defendant has physically interfered with the

parties is injured.20 For example, suppose I promise to provide

involved, they often give the contract precedence, allowing the

§ 1.7 Torts and Regulatory Control

A signal difference between regulation and tort law is that

Alternative, non-tort systems seek to compensate for injury

AIMS, POLICIES, HISTORY AND

A. AIMS AND POLICIES OF TORT LAW

at least on some idea that the defendant has in some important

They also play a large part in evaluating subsidiary aims such

compromising the judicial process by injecting the judges’

Conversely, it can be argued that in a corrective justice scheme,

reciprocity is a moral test of liability, then strict liability should

Based on these and other considerations, some commentators

plans is that the employer is held liable without fault because

concerns. Broadly phrased, the legal process should be designed

Rules failing to specify provable facts. Rules also detract from

decide cases involving property rights and the “King’s peace.”

because, from very early times, the law sought to substitute

Brown v. Kendall signaled the acceptance of new kinds of

Application of precedent to new cases is sometimes rather

First, the traditional tort rules governing conduct to a large

TORT LAW IN PRACTICE

A. ADJUDICATION OF TORT CASES

applying the legal rule of reasonable care to the facts.

general demurrer under earlier common law procedure). The

The jury’s function is to determine and evaluate the facts.3