Tort Law Exam

Front 1

Sufficiency of the Evidence Standard

Back 1

In ruling on a motion for a directed verdict, the court will look at all the evidence in the light most favorable to the non-moving party and assume as true those facts that a reasonable jury, looking at the evidence in that light and following the instructions of the court could reasonably determine to be true

Front 2

Weaver v Ward holding

Back 2

The holding for Weaver v. Ward is that a man will never be excused for trespass unless it is judged entirely without his fault. Court holds that the D is liable simply b/c he shot him, regardless of whether he was at fault or not.

Front 3

If battery issue is an issue,

Back 3

You have a battery issue whenever you have what seems to be a "harmful or offensive contact"

1. Introduce discussion with the following definition: “A voluntary act done with intent to cause a harmful or offensive contact to the p that causes a harmful or offensive contact to the plaintiff.”
Possible tests
2. Intent
a. It is not necessary that D desires to physically harm P. D has the necessary intent for battery if it is the case either that: (1) D intended to cause a harmful or offensive bodily contact; or (2) D intended to cause an imminent apprehension on P’s part of a harmful or offensive bodily contact
b. The “intent to cause assault” is enough for battery, if contact ensues. (Desire to frighten)
c. If D knows that a harmful or offensive contact is “substantially certain” to occur, the fact that D doesn’t “desire” that contact is irrevelant.
d. Substantial certainty
i. If D knows that a harmful or offensive contact is “substantially certain” to occur, the fact that D doesn’t “desire” that contact is irrelevant
e. Transferred intent
i. If D tries to make contact with (or frighten) X, and contact ensures with P, that’s enough for battery.
3. Offensive Contact
a. If the contact is “harmful” (causes pain or bodily damage), this qualifies. But battery also covers contact which are merely “offensive” I.e damaging to a “reasonable sense of dignity.” the touching of a P or his person with intent to invade or injure the P.
i. An “offensive” contact means that as long as P’s dignity is harmed, no injury is necessary
b. Indirect – The contact can be by indirect means, i.e., not necessarily D’s person touching P’s person
i. Mechanical devices: The use of “mechanical devices” to protect property is often tested, and will typically involve battery unless the prop owner had a privilege
4. If D exceeds a privilege
a. Exceeding self-defense
b. D uses non-deadly force against one who he thinks is an intruder on D’s prop, but who is really the mail carrier.
If medical malpractice, if D is a doctor who fails to get the patient’s informed consent before performing procedure, may be battery.

Front 4

Battery (Prima facie test)

Back 4

1) A voluntary act
2) Done with the intent to cause a harmful or offensive contact to the p or the apprehension of an imminent harmful or offensive contact to a plaintiff
3) That causes
4) A harmful or offensive contact to the plaintiff

Front 5

Assault (Prima Facie)

Back 5

Voluntary act with intent to cause apprehension of imminent harmful or offensive contact, causing reasonable apprehension of imminent harmful or offensive contact, when D had apparent present ability to bring about the harmful or offensive contact.

Front 6

If Assault is an issue,

Back 6

There is an assault whenever you have a person who is put in “apprehension of an imminent harmful or offensive contact” by another person.

1. Work the definition into the beginning of your discussion on the issue: “Voluntary act with intent to cause apprehension of imminent harmful or offensive contact, causing reasonable apprehension of imminent harmful or offensive contact, when D had apparent present ability to bring about the harmful or offensive contact.
a. Try to combine with battery. Anytime you have identified a battery, also consider where there was first an assault. As long as P saw was about to happen, there’s an assault just before the battery.
b. D swings at P’s jaw, there’s an assault just before the impact
2. Intent
a. D intends to commit a battery, but fails or
b. D intends to put P in apprehension, but not to really cause the contact (so that the intent is “attempt to frighten”
c. Transferred Intent – If D tries to frighten X and P thinks that he himself will be hit, then D has assault P even if D never intended any effect on P.
3. Words-alone rule – Words alone can’t constitute an assault. If D raises his first, or steps menacingly towards P, that’s enough of an overt act to prevent the ‘words alone” rule from apply.
4. Contact must be “imminent” ( Fear of being beaten tomorrow isn’t enough)
5. Awareness of danger
a. P must be aware of the danger before it happens, and it’s not enough that contact eventually does happen.
i. Something happening behind P’s back or happening just before P comes onto the scene negates P because P was no aware
ii. D aims at P from behind, shoots and misses. P then realizes that he was almost hit, no assault
b. P’s apprehension must be that there will be contact with herself, not contact with a loved one
c. If D leaves a fake “tarantula” to scare P and P doesn’t think a human was involved, stil constitutes as assault because P has been put in apprehension of a harmful or offensive contact
6. As with battery, consider possibility of assault whenever someone exceeds the scope of a privilege
a. D, shoots at P who D knows is an unarmed burglar. D misses. Since D wasn’t permitted to use deadly force here, he had no defense of self-defense or defense of land.

Front 7

Intentional infliction of mental distress (Prima Facie)

Back 7

1. An act by the D amounting to EXTREME AND OUTRAGEOUS CONDUCT
2. Intent (general or specific) on the part of the D to cause the P to suffer severe emotional distress or recklessness as to the effect of the D’s conduct.
3. Causation
4. Damages (severe emotional distress…)

Front 8

If intentional infliction of mental distress is an issue,

Back 8

Look for the tort of IIMD whenever one person does something to another that seems really “outrageous,” and the latter suffers great anguish
1. If you spot an IIMDB issue, introduce your discussion with the following definition. “intentional infliction of mental distress occur whenever the defendant intentionally or recklessly causes, by outrageous conduct, severe emotional or mental distress in another person.”
2. Some contexts
a. P is “humiliated’ or “suffers great distress” (esp where facts tell you that P seeks medical attention for the distress”
b. A business dispute where one party spies on another, follows the other, otherwise harassment
c. D is a debt collector who wrongfully harass P or wrongfully repossesses P’s goods
d. D commits a major crime against P’s persons or against the person of P’s close relative
e. D plays a really nasty practical joke on P
3. P’s mental state: Tested
a. D intended to bring about the distress
b. D knew with substantial certainty that the distress would result, even if D didn’t desire it; or
c. D reckless disregarded the possibility that distress would result
4. Intent
a. D intends to repose P’s trailer home, and does so but it turns out P wasn’t really in default. The mere fact that D intended the act is not enough, unless D intended to cause P anguish, knew P’s anguish was substantially certain to occur, or recklessly disregarded the possibility that P would be anguished.
5. Outrageousness
a. Mere insults generally not sufficient for outrageousness
b. If D knew of P’s special sensitivity, then outrageousness is judged by reference to whether a person of P’s sensitivity would have been seriously anguished
c. Publication of true story about P is not sufficiently outrageous

Front 9

Intentional torts to property (Prima Facie case)

Back 9

1. An act of physical invasion of P’s real prop by D
2. Intent on D’s part to bring about a physical invasion of P’s real prop
3.Causation

Front 10

If trespass to land is an issue,

Back 10

Look for whenever one person intentionally comes onto another person’s land.
1. Define it – “Trespass to land is the intentionally unauthorized entry onto the land of another.
2. Intent – Trespass is an intentional tort.
a. The intent is the inter to enter the land, not the intent to harm the D or the land in any way.
3. Knowing with substantial certainty: If D knows with substantial certainity that he is entering (or causing an object to enter) land, the intent requirement is met.
a. D operates factory that discharges particles of ash onto P’s land, and that D knows that this is happening. D meets the intent requirement for trespass, even though D doesn’t desire it.
4. Mistake – As long as D knows he’s entering land, the intent requirement is satisfied, and D’s mistaken belief (even his reasonably mistaken believe) that his entry is authorized is irrelevant.
a. D think hes coming onto land owned by X, who has in fact invited D, but D is really by mistake coming onto land owned by P. Trespass
5. Object caused to land: Trespass occurs not only where D himself comes onto the land but also where D causes an object to come onto land.
6. Overstaying an invitation counts as trespass if D remains after being asked to leave.

Front 11

Intentional torts to chattels (Prima Facie case)

Back 11

1. An act of D that interferes with P’s right of possession in the chattel
2. Intent to perform the act bringing about the interference with P’s right of possession
3. Causation
4. Damages

Front 12

If trespass to chattels is an issue,

Back 12

Look for whenever one person intentionally interferes with another’s possession of a “thing.”
1. Define it, if you spot a T/C issue, lead with the following def: “Trespass to chattels is the intentional interference with another’s possessory interest in a chattel, resulting in damage to that interest.
2. Intent: Most T/C issues relate to intent
a. Belief about the right of title not relevant: Relevant intent is the intent to take possession or otherwise affect the chatte.
b. In general, mistake is never a defense to T/C. Thus the following types of mistake (even if reasonable) will all no defense
i. D believes chattel already belongs to D.
1. D takes P’s umbrella thinking its his o wn. This is T/C
ii. D believes that X has title to the object, and buys the object from X when it really belongs to P.
1. X steals a radio from P and sells it to D, who does not know the radio is stole. D is liable to P for T/C
c. Intent and Accident: If D doesn’t intend to even make contact with P’s possession, and this contact happens by accident, there’s no T/C. Still discuss
i. D, while driving carefully, hits and damages P’s car without intending any contact.
d. Degree of interference
e. Distinguish from conversion
i. Conversion only occurs when the injury to P’s interests is so severe that it is appropriate to make D pay for the whole value of the item as opposed to damages for just the inference.

Front 13

Defenses to Intentional Torts
(Consent)

Back 13

Whenever fact pattern involves an international tort, be alter to the possibility that P consented
1. P and D fight, but they explicitly or implicitly agreed beforehand to do so. However, most states don’t allow consent to an illegal act, and unregulated fighting is usually illegal.
o Consent does not bar criminal liability for both combatants even though they both consent to the fight. It is in the public’s interest to keep the peace
o If P expressly consents to an intentional interference with his person or prop, D will not be liable for that interference
o If a reasonable person in D position would conclude from P’s conduct that P consented to proposed invasion, then there is apparent consent.
o Existence of consent may also be implied from P’s conduct, from custom, or from the circumstances.
o P is injured by a mechanical security device –if there is a warning sign, which P actually saw, he may be deemed to have consented.
o P is a suspected shoplifter, who is told to “wait here” by the storekeeper’s detective – the circumstances may indicate that P waited voluntarily, in which case there was no true confinement
2. The existence of consent is determined by “objective”, not “subjective” analysis. That is, the question is always what a reasonable person in D’s position would have thought that P meant, not what P really meant. Thus consent can be “implied” from P’s conduct or from the surrounding circumstances.
o P and D have each consented to the other’s practical jokes on past occasions, including frightening “assaults.” This may mean that P can’t sue for assault when D frightens him with a fake tarantual
3. Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent.
o P visits D, a doctor and consents to an operation of her right ear. While P is under anesthetic, D decides to also perform on P’s left ear, and does it. P’s consent does not block an action for battery on the left-ear operation, since operation went beyond scope of P’s consent.
4. Mistaken Consent
o P’s mistaken consent, his mistake about the nature of the event that will take place usually does NOT vitiate consent (as long as D wasn’t aware of P’s mistake). This is true even if P would never have consent had he known the true facts.
 P consents to have surgery performed by doctor. P is unaware D has been sued several times for malpractice. D does not realize that P would never consent if he knew these facts. P’s consent is valid

Front 14

Defenses to Intentional Torts (Self-defense)

Back 14

If your facts suggest that X is threatened with a battery or false imprisonment, and X responds with force, consider whether X can assert “self –defense” as a defense against liability for battery or assault.
1. Fight: Look out for the possibility of self-defense whether two parties fight. Even if not clear, should consider each fighter’s chance of claiming self-defense.
2. Identify first to commit battery/assault
a. The first to commit has two consequences
i. The other can now use self-defense
ii. The initial aggressor cannot respond to the other’s self-defense with self-defense on his own.
iii. A insults B. B swings at A and misses. A hits B; B hits A. Analysis:
iv. A’s insults aren’t enough to trigger B’s right to swing; B’s swing was therefore tortious; A probably then had the right of self-defense; B probably didn’t have the right of self-defense in return, because his act was in response to A’s valid right
3. Recovery by initial aggressor: But remember that even the “initial” can use self-defense in respond to an inappropriate escalator of the level of force.
a. A swings at B. B pulls out gun. A can now use his own gun in self-defense, because B has gone beyond the scope of reasonable self-defense by answering non-deadly force with deadly force.
4. Mistake: D can use self-defense even if based on a mistake, if D’s belief in the need for self-defense was reasonable
a. P puts his finger in his pocket and points it at D; if D’s belief that P has a gun is reasonable, D can use self-defense even though he is wrog.
5. Level of force: After you determine that D had the right to use self-defense, always examine the level of force.
a. No more force than reasonably necessary: D can’t use non-deadly force that’s more than Is reasonably needed
b. Deadly force used to oppose non-deadly force: D cant use deadly force to oppose
c. Retreat: Even against deadly force, some jurisdictions say D must retreat instead of using deadly force if he knows he can do so safely.
i. Most ct.: D may stand ground and use deadly force to attack even if he could retreat w/ complete safety
d. Test for deadly force: Many questions require you to determine whether the force used is deadly or not. The test is : was the force likely to cause death or serious bodily injury?
6. Imminence: D may not use force to avoid harm which is not imminent, unless it reasonably appears that there will not be a later chance to prevent the danger
• P says to D, “I will beat you up tomorrow.” D cannot beat P up today, to prevent tomorrow’s attack, unless it appears that there wil be no way for D to defend tomorrow.
7. Apparent necessity
i. Self-defense may be used not only where there is a real threat of harm, but also where D reasonably believes that there is one.

Front 15

Defenses to Intentional Torts (Defense of Others)

Back 15

It’s easy to spot a “defense of others” (D/O) issue – one person will be coming to the aid of the other, to repel some sort of attack.
o When you intervene into a fight between two, if the person you were defending was trying to use self-defense and could reasonably do so, then you have a defense to liability.
o Majority: Intervener steps into the shoes of the person he is defending and is privileged only when that person is privileged
 If he has intervenes and helps the aggressor by reasonable mistake, he is liable
o Minority: D is privileged to use reasonable force to defend another even when he is mistaken in belief that intervention is necessary
 So long as mistake is reasonable
1. Same issues: Almost all of the issues discussed above in self-defense can be present in D/O.
2. One special D/O issue: Can you come to the defense of a complete stranger? Most courts now say “yes” If so, the rules are the same
3. D comes onto scene late: If D comes onto scene late and doesn’t realize that X (who D helps out) was really the initial aggressor, courts say D “steps” into the shoes” of X. Since X was the initial aggressor, he would not have right of self-defense and neither would D.

Front 16

Defenses to Intentional Torts (Defense of Property)

Back 16

Defense of Property
o There is a privilege to defend one’s possessions, either land or chattel, through meddling or dispossession of your personal property
 Warning required first: The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that the violence or harm will occur immediately, or that the request to stop will be useless.
o Mechanical devices
 D uses a trap or other mecahical devices to injure or frighten intruders
• Analyze if D was present
o If D couldn’t use that particular level of force in person against that particular intruder, he can’t do it by mechanical device himself
o Mistake:
 Possessor has the ability to use reasonable force to protect real or personal property from trespass or conversion ( general right to regain possession of chattels through reasonable force when they are taken from them or another
 If the person coming onto the land is privileged to come on the land but you use reasonable force to prevent them than you are liable for “trespass on the person”

Front 17

Defenses to Intentional Torts
(Necessity)

Back 17

Whenever D intentionally does something to protect himself or others in an emergency, and this affects the rights (usually land rights) of P, an innocent person.
• Public vs. Private – Always specify.
o Public necessity applies only where there’s a serious danger to many people
o Private necessity applies where the danger is to D and/or a few others
• Two contexts
o D, who can be either a public official or private citizen, tries to stop the spread of a fire by destroying P’s house, moving things out of P’s building, putting barriers on P’s prop. Prevention of fire is generally “public” necessity
o D is a pilot who makes an “intentional” but emergency landing on P’s prop. This is usually private necessity, at least where the plane is a small private one.
• Must D pay: If necessity is private, yes. If necessity is public, no.
• Landowner resists: The most common scenario involving necessity: A comes onto B’s land under the privilege/defense of necessity, but B resists, injuring A. Here, A can recover against B.
o A is a pilot who makes emergency landing on B’s prop, and is injured. B evicts A, aggravating A’s injuries. B is liable to A for the aggravation of the injuries, in addition to being unable to recover nominal trespass damages from A.

Front 18

Carroll Towing Test

Back 18

1. Used to determine whether or not risk was to be considered unreasonable.
2. Burden of taking precaution (B) is less than foreseeable risk (severity) of harm of the conduct (L) times the probability (P) that harm will occur. Question for the court
i. B<P(L)
1. Whether B is less than (P x L) determines the unreasonableness of the risk put forth upon the P
a. B includes forgone benefits
b. If B<P(L) then D’s conduct imposed an unreasonable risk of harm on P.
c. If P x L < B x U = no duty, or P x L > B = duty
ii. D will be liable for damages as a result of negligence if there is an existence of a real likelihood of damage and that likelihood is of such appreciable weight, which would induce or which reasonably should induce a reasonable person to avoid that action
iii. Blyth v. Birmingham Waterworks Co.: water plug sprung a leak and flooded PI house, because it was the coldest day of the year. Was this an unreasonable risk? No, applying the test we find that When a P suffers damages as a result of an accident by a D that a reasonable man could not provide against, the D is not liable for the damages. Carrol Test: The burden to replace these mains would be far more than the probability they would break (only in extreme temperature) times the harm (which is relatively low, just filling a home with water is not a substantial harm)
iv. Gulf Refining Co. v. Williams: D sold a drum full of gas to Pl, which had worn threads. When the drum was opened, a spark ignited from the threads, and exploded the gas causing severe damages. Nothing like this had ever happened, yet, the court ruled that A D will be held liable for damages as a result of negligence if there is an existence of a real likelihood of damage, and that likelihood is of such appreciable weight, which would induce or which reasonably should induce a reasonable person to avoid that action. Why? Apply the test: The burden to make sure the threads on drum are maintained is far less than the probability that it would happen (the court states this was a high probability considering the wear and tear) and the harm done could be very costly, both to persons and property (PI was severely burned as a result.)
v. Chicago v. Kranyenbuhl: (the railroad turntable): Child lived near tracks where there was a turntable that was supposed to be locked with a padlock. D negligently left in off and children played on it, and subsequently caught his foot under it and severed it at the ankle. The D was found liable in that it was company policy to do this simple measure and they did not. a. TEST: The court specifically states that the burden (to lock the lock) is far less than the probability (children play around there frequently) times the harm (child lost his foot and could even potentially have had more of detriment). Therefore, they would be held liable, and they were.

Front 19

Negligence (Duty)

Back 19

1. There must be a duty on the part of the D to exercise ordinary care to prevent harm to the P. D must conduct himself according to a certain standard, so as to avoid unreasonably risk to others
2. In Lubitz v. Wells, father left club in backyard and son found the club and swung it at a stone. The club struck a girl in the face. She sued both the son and the father for negligence. Court found that father did not have a duty did he did not create an unreasonable risk of harm. Likewise a child could conceivably pick up a hose, twirl it around over his head, and strike a playmate. Would you contend that any person who leaves a garden hose unattended in the yard creates an unreasonable risk?
3. Duty is a question of the court

Front 20

Negligence (Breach of Duty)

Back 20

• Using conduct of reasonable/prudent person as a standard.
• Tire blow out case – What would the reasonably prudent person knows. The Ordinarily reasonly prudent person would have found out if driving with that tire is a dangerous.
• Purple light at a street light – A reasonably prudent person would find out what that means before driving out about it.
• Violation of custom is proof of negligence and a ORPP would not violate.

Front 21

RES IPSA LOQUITIR

Back 21

Under res ipsa loquitir an inference of negligence is raised when 1) the injury would not have occurred absent negligence, 2) the defendant was in exclusive control over the instrumentality causing the injury, and 3) the plaintiff did not contribute to his own injury.

Front 22

Negligence per se

Back 22

Negligence per se is a two prong test: If a statute has a penalty for its violation and proscribes the conduct expected, and the statute is designed to prevent the type of harm caused by defendant and protect the class of plaintiff harmed by defendant, the statutory duty will be substituted for the common law duty. Its breach is negligence per se.

Front 23

If you see a statute in your fact pattern,

Back 23

Most likely a negligence per se issue.
1. Give the definition: “D is negligent if, without excuse, D violates a statute that is designed to protect against the type of accident D’s conduct causes, and the accident victim is within the class of persons the statute is designed to protect.”
2. Was the type of harm that occurred the type of harm the statute was designed to prevent?
a. A statute says, “No pilot may take on a pseenger for pay unless the pilot has a commercial’s pilot license.” An accident then happens in flight while P is flying as D’s paying passenger, and D has only a regular pilot’s license. (Probably you should conclude that the licensing requirement was not enacted for the purpose of avoid in-flight accidents in which case the violation would not establish negligence.)
b. A statute says, “No one may leave a parked car with keys in the ignition.” D violates statute, the car is stolen, and the thief crashes into P. Examine why the legislature passed this statute, was it to prevent accidents from thief-driven cars (per se doctrine applies), or was it to prevent some other harm), in which case the doctrine does not apply.
3. P must be member of protected class: Was P a member of the class that the legislature intended to protect by means of the statute?
a. Statute says, “no one may leave a vehical parked and unattended on a part of a street marked ‘school zone.’” P is an adult who crashes into D’s unattended car parked in such a zone. You can’t know what the legislature intended. Therefore, say that if the legislature intended only to protect school children, P will not get the benefit of the negligence per se doctrine. But discuss the possibility that although the statute is tied into a school zone, it may have been intended to protect any member of the public who is using the street in front of the schoo, in which case the doctrine would apply

Front 24

Look for a res ipsa locutur" issue whenever there's no direct evidence as to whether D was negligent.

Back 24

Context where RIL frequently occurs
a. Airplane crashes into the ground, and there are no clues as to what caused the accident
b. P gets surgery, and something unexpected results (wrong part of P’s anatomy is removed)
1. Exclusive control
a. The requirement that D be the person most likely to have been negligent is often tested.
b. P undergoes surgery by D, and a later x-ray shows a surgical tool left in his body. It’s up to you to say, “But P will probably have to show that only D was the only one who operated on P, or at least that he’s more likely than anyone else to have left the tool on P’s body.
c. Doctrine doesn’t fit if there is a third party in control
2. RIL usually doesn’t occur without negligence.
a. P is killed when a plane piloted by D crashes into a mountain. Up to you to notice and discuss that you don’t know whether this accident is of a type that usually doesn’t happen without negligence.
3. the plaintiff did not contribute to his own injury.
a. Doctrine not used when there is direct evidence of what caused the episode, or of exactly how D behaved during the event.
b. No directed verdict



 “the thing speaks for itself”
o Accident itself is circumstantial evidence of D’s negligence
 W/o showing precisely how D acted
o Used when:
 P doesn’t know and can’t prove what the D did
 There is some uncertainty about what happened
o How ct. treats it
 Some ct. treat as circumstantial evidence of negligence
• When basic fact (direct evidence) is simply the fact of the accident
o Basic fact leads to inference that facts also occurred
 All of which violate the D’s duty to exercise due care to prevent the accident
 If P can establish Prima Facie case for RIL
o Need not prove by direct or other evidence the specific conduct of D which was negligent.
o Jury instructed on res and may infer that D negligence caused P injury w/o specific proof of what happened
 Two Streams
o Proof of Negligence by circumstantial Evidence
 Way of inferring certain facts from other proven facts
• Evidence of basic fact infers basic fact which infers the inferred fact
o Basic fact used to infer facts
• Direct evidence is an eyewitness
 Burden of proof on P
• If jury cannot decide between 2 different conclusions then P must lose
o One must be more probable than not
 If reasonable jury cannot determine that it was more probable than not, then the jury is not to be allowed to base their judgment on speculation or juncture
• Ct. must DV for D
 RIL: accident itself is the circumstantial evidence of D’s negligence
 Byrne v. Boadle
• P walking down street and barrel of flour falls from window of D’s shop onto the P
o P provided Prima Facie Case by proof of injury sustained
 Under D’s management, by D’s servants
o Jury can conclude that accidents of this kind don’t happen w/o negligence
 Tests for Res Ipsa Loquitor
o Differentiated test
 Requirements
• Must be no direct evidence of how D behaved
• P must demonstrate that the event is of a kind which ordinarily does not occur except through the negligence of someone
o If an airplane crashes without explanation, P will generally be able to establish that airplanes usually do not crash without some negligence, thus meeting this requirement
• P must show that the instrument which caused injury was in the exclusive control of the D
o P, while walking on the sidewalk next to D hotel, is hit by a falling armchair. Without more proof, P has not satisfied the requirement that any negligence was most probably by D, because a guest, rather than the hotel, may well have had control of the chair at the moment it was dropped.
• P must show that injury was not due to P’s own action
• P not required to show that there were no other possible causes
o P must merely prove that there is a greater probability that there was negligence
• Withstand a defense motion for a Directed Verdict
o P must adduce evidence, which when viewed in light most favorable to the P, establishes that the existence of each element of the doctrine is more probable than not
o Must show by preponderance of evidence that the instrumentality which caused the accident was not under the D’s exclusive control
 Ex: Larson v. St. Francis Hotel
• P struck by falling chair from hotel
• D did not have exclusive control over the chair
• Multiple D’s
o Whether a Cause of Action under res can be sustained where there are multiple D’s named in the action. All of whom had separate duties in relation to the P
 Debatable Question
 Where P received unusual injuries while unconscious and in the course of medical treatment, all D having control over P’s body and the instrumentality which may have caused the injuries, may properly be called upon to meet the inference of negligence by giving an explanation of their conduct
• Effect of RIL
o Usually, the effect of res ipsa is to permit an inference that D was negligent, even though there is no direct evidence of negligence. Res ipsa thus allows a particular kind of circumstantial evidence. When RI is used, P has met his burden of production, and Is thus entitled to go to the jury
• Rebuttle
o General evidence of due case: IF D’s rebuttle is merely in the form of evidence showing that he was in fact careful, this will almost never be enough to give D a directed verdict
o Rebuttel of RI Requirements: If D’s evidence directly disapproves one of the requirements for the doctrine’s application, then D will get a directed verdict.
o Procedural effect
 Majority: treated as Some evidence of negligence
• Jury may draw the inference as its judgment dictates
 Minority: treated as rebuttable presumption of negligence which shifts the burden of proof on the negligence Question to the D
• Cases involving common carriers: passengers killed in plane crash
 Same jurisdiction will use both views
o Defense against Res Ipsa Loquitor
 Best evidence D can present:
• Evidence of what actually happened
 D must prove that they exercised due care
 Fact of accident itself frequently tends to undermine D’s position that he exercised due care
 Rebuttal: D’s evidence disproves one of the requirements of the doctrine’s application
• D gets a Directed Verdict provided that no Prima Facie Case is present other than res ipsa loquitor

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Common Carrier (RIL)

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o Common carrier liability: special rules of bailees’s person property
 Burden of proof of due care is on bailee if the bailor proves that they gave person/property to bailee in good condition and got it back in worse condition
 Good Rule
• Bailee has control and possession over property
o Also much more likely to know what happened
o Application
 Ct. analogized passengers to goods bailed for hire
o Prima Facie Case
 There is a bailment (goods delivered and payment payed)
• Delivery in good condition
 There was no re-delivery or the goods were damaged
• Return of good in damaged condition
 If P satisfy: Burden of present evidence and burden of proving the exercise of reasonable care shifts to the bailee
• Easy to shift the burden
• Reason:
o D should bear the risk of unexplained injuries b/c D is in a better position to avoid injuries, has access to info about injury’s cause, and P was entrusting/relying on the D

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Causation in Fact (Sine Qua Non)

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Causation in fact
1. Even if there is no true issue, discuss each at least briefly in essay answer, since their part of P’s prima facie case.
a. “Since D hit P while diving carelessly, D is clearly the cause in fact of P’s broken leg, because that leg wouldn’t have been broke had D not driven his car into P.”
2. “But For” standard (Sine qua non) – D’s negligent act is the cause in fact of the harm to P if the harm would not have happened “But for” D’s negligent act.
a. D’s speeding was the but-for cause of P’s broken leg, because but for D’s speeding, D could have stopped or swerved in time.
o Necessary condition
o P presents the evidence to show that more probable than not the D’s negligence caused the injury. Must be the D’s negligence that caused it in fact, not just the presence of the D’s negligence
o P takes her prescription for a medication to D, her local pharmacy. D mistakenly fills the prescription by giving P pills containing 30 mg of the active ingredient rather than the 20 mg called for by the prescription. After taking the pills, P suffeers serious heart arrhythmia, and sues D for this harm. P can recover only if she proves that had D provided the correct, 20 mg, pills, P would not have suffered the arrhythmia. In other words, for P to recover, the trier of fact must be satisfied that the wrong pills were the “but for” cause of P’s arrhythmia.
 How to use
1. ID what made the D’s actions negligent
2. Change the facts just enough so that the D was acting correctly
3. Id if the P would still have been injured regardless of the negligence
o All 3 = a Cause in fact
 Problem
o When Negligent act is an omission on the part of the D
 Ask this Q
• Did the Ds conduct greatly increase the risk of this kind of harm?
• Does the D’s conduct have the capacity to cause the harm? Was the character as such that it would naturally lead to harm?
• Was the D’s conduct in a sequence of events
o P’s harmmust follow D’s negligence
• Affirmative answers to Q leads the jury to find that it is more probable than not that the injury would not have occurred w/o the D’s act or omission
o Mere possibility that injury could happen w/o D’s negligence is not sufficient to break the cause and effect chain

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Causation in Fact (Concurrent Causes)

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If there are “concurrent causes,” each of which would have been enough by itself to cause the harm, use the substantial factor test. If one of the causes was a substantial factor in bringing harm about, it’s deem a cause in fact even though the other cause could have suffice alone.
 Sometimes D’s conduct can meet the “cause in fact” requirement even though it is not a “but for” cause. This happens where two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other. Each of these concurring events is deemed a cause in fact of the injury, since it would have been sufficient to bring the injury about.
o Sparks from D’s locomotive start a forest fire; the fire merges with some other unknown fire, and the combine fires burn P’s prop. Either fire alone would have been sufficient to burn P’s prop. Therefore, D’s fire is a cause in fact of P’s damage, even though it is not a “but for cause.”
 Multiple Actors
o Apply test
 Where separate negligent acts of D 1 and D 2 combine to cause a single injury and both acts are necessary for P’s injury
• Either act by itself would have resulted in injury
• E: P (passenger in D 1 car) injured by accident caused by negligence of D 1 and D 2
 Both D are liable if it appears that P would not have been injured But for the occurrence of the negligent acts
 Ct. may shift the burden of proof to the Ds if it cannot be seen which D is liable
 NESS Test (Necessary element of a sufficient set or substantial factor test
o If the conduct is a material element or substantial factor in bringing about P’s injury, then the conduct is the cause in fact of the injury
 Apply where tortious conduct of EITHER D 1 or D 2 independently would have cause the injury to the P
• 2 Independently sufficient causes
 If apply the “but for” test, both the D would escape liability
• Injury would have occurred despite each individual’s act
o Problem in determining which D caused the harm
 Ex:
• 2 hunters negligently shoot their guns at same time, pellet hits P in eye
o But for does not work: cannot prove the but for D act P injury would not have occurred
• 2 fires start. Head toward P’s property and burn it down
o Either fire was sufficient for the same injury to plaintiff
 Traditional: since P could not satisfy burden of proving who caused the injury, P would lose
 Modern: Shift burden of proof to each D that their act was not the result of the injury
• Each D must prove he was not the cause
o If neither can prove than they are both liable
• Imposes hardship on innocent party
 Common Law: Each D responsible for D’s indivisible harm
• P could collect damages from either the joint tortfeasors in any portion
o If one D paid more than their personal share (based on % of fault), that D could recover in an action of contribution, the excess from the other D
 Each set is sufficient to cause harm, but not necessary

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Proximate Cause (Foreseeability)

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Proximate cause generally boils down to whether the harm was “foreseeable.” If it was reasonably foreseeable that D’s behavior might cause an injury somewhat like the one that happened to P, then you should probably conclude that D’s behavior was the PC of P’s injury.

1. Define it – Conduct will be deemed to be a PC of harm if the harm was a foreseeable result of the conduct, and if the harm was not brought about by an extraordinary or unforeseeable sequence of events.”
2. Foreseeable harmful results—D liable
a. D driving car down a busy street at high speeds when a pedestrian steps out into the crosswalk in front of her. D has no time to stop, so she swerves to one side. Car hits a parked truck and bounces to the other side of the street, where it hits around parked car. D is liable despite the unusual way in which she caused injury to pedestrian
b. Unforeseeable harmful results – defendant not liable
i. D, driving too far on a high way. Threatening P, his passenger with injury. Without warning, section of highway that D is on collapses. P is seriously injury. Even with D’s negligent conduct was an actual cause of P’s injury, court would not hold D liable.
c. Foreseeable consequences
i. P’s injury is foreseeable consequence of the D’s conduct, then the D’s wrongdoing is the proximate cause of the injury
ii. D’s conduct is the PC so long as the consequences are foreseeable
1. The exact way the consequences were brought about need not be foreseeable
iii. Ex: Ryan v. New York Central RR
1. D negligently allowed wood fire to occur which caught fire to P’s shed. Heat and sparks in turn caused the P’s house to catch fire. Is D liable for burning down the P’s home?
a. No because ct. said that the only foreseeable consequence was catching fire of P’s woodshed. Any other burnings were too remote to make D liable
2. Exception:
a. A key exception the general rule that D is liable only for foreseeable consequence is: once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for any additional unforeseen physical consequences.
b. Thin Skull Rule: Thus if P, unbeknownst to D, has a very thin skull, and D negligently inflicts a minor impact on this skull, D will be liable if, because of the hidden skull defect, P dies. The defendant “takes his plaintiff as he finds him.”
i. Ex: Bodybuilder case
1. In car accident, paralyzed, cant work out
2. P already had psychological problems which grew worse from loss of physical exercise and he went crazy
ii. If negligence in tapping him on the head, you are liable for all resulting harm
• Direct consequences, direct sequence of events test, direct causal relationship (hindsight)
o D’s conduct is the PC if the P’s injury follows from an unbroken natural sequence of events
o Ex: Polemis. Workman dropped a board into the hold of the plaintiff’s ship, which caused a spark and ignited petrol vapors in the hold, destroying the ship. Although explosion was unforeseeable, the court held that d was liable since the negligent act of of its employee was the direct cause of the harm.
• Reasonable foreseeable risk test
o Court considers what the risks were that made the D’s conduct negligent in the first place. If the D should have anticipated a particular risk at the time he acted, and he negligently failed to avert that risk, he would be liable if that risk caused P harm.
o Act is negligent for ignoring foreseeable risks
o Conduct is PC of P’s injury if the injury is within the scope of the risk that made the D’s conduct negligent in the first place
 Ex: D gives X, 8 yr. old a loaded pistol to carry to P. In handing the pistol to P, X drops it, injuring the bare foot of Y. The fall sets off the gun, wounding P.
• Arguably, the risk that made the D’s conduct negligent in the first place was the risk that she would shoot someone, not drop it on Y’s foot. The fact that the discharge occurred in an unforeseeable manner – by the dropping of the gun – is irrelevant. D is liable to P however not liable to Y, since Y’s foot injury was not foreseeable, and the risk of it was not one of the risks that made D’s conduct initially negligent.
 Exam:
• Argue for the P by defining the foreseeable risk broadly
• Argue for the D by defining the foreseeable risk narrowly
 Ex: Wagon Mound 1
• An act of negligence which results in some trivial foreseeable damage will not make the D liable for all consequences however unforeseeable and however grave, so long as they are direct
 Distinguish foreseeable consequence from foreseeable risk
• Foreseeable consequences: whether at the time of the D allegedly acting wrong, could he have foreseen the consequences?
• Foreseeable Risk: Whether the foreseeable risk that made the conduct negligent in the 1st place, was that which caused the P’s injury?
o Hazard/Class Rule
 D’s wrongful conduct is Proximate cause of P’s injury
• If the P is a member of the class intended to be protected by social rule, AND
• Hazard is of the kind the rule was designed to prevent
 Kelley really likes
• Relates to conforming your conduct to societal expectations
o Straight Test of Public Policy
 Is it good to limit D’s liability or not
 Judgment by judge/jury limiting potential limitless liability

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Proximate Cause (Intervening Causes)

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• Any causal factor that operates after the D’s negligent at has been completed
• Distinguish
o Intervening
 Chronological descriptive term
• Cause in fact of P’s injury that operates after the D’s negligent conduct and which contributes to the D’s negligence in producing the plaintiff’s injury
 Analyzed like proximate cause
• Apply ordinary tests for PC for dif. Kinds
 Superceding
• Legal Conclusion: intervening cause that ct. holds breaks the PC relationship between D’s conduct and P’s injury, which in turn relieves the D’s liability of his negligent conduct. DEFENSE
 Ct. are more likely to find the act superseding if it is criminal or intentionally tortious ; if it is foreseeable, it will still be merely intervening
• Ex: Watson v. Kentucky RR
o Negligence of D RR, tank car of gas derailed and valve broke, gas spilled into the street, D duerr struck a match and the gas caught on fire
o Was the D’s negligence a foreseeable consequence?
 2 arguments
• Chance that Duerr did not intend to do this criminal act and was merely lighting a cigar
o Foreseeable act that the D would be liable for
• If it is found that he had intended to do this, ct. would have been correct in finding that his act was an intervening caused based on malicious behavior that intervened
 General rule for intervening causes
• The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the D’s guilt of the primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated the criminal acts of others by which damage is inflicted and hence is not liable thereafter
 Kinds of intervening
• Act of nature
• Acts of God
• Conduct of third parties
o Ct. will apply the ordinary PC rules
 Negligence as to the P
 Intentional harm to the P
 Criminal intentional harm to the P
o Ex: Derdiarian v. Felix Construction Corp
 P had a seizure and lost consciousness and drove onto an excavation site and hit the P
 Intervening act may not serve as a superseding cause and relieve an actor of responsibility where the risk of the intervening act occurring is the very same risk which renders the actor negligent
• Determined by foreseeable consequences test
 Ct. uses foreseeable rule to determine whether intervening cause is superseding
 Test:
• If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the D’s conduct, it may well be a superseding act which breaks the causal nexus
o If the foreseeable risk is inherent in the force of nature, then not superseding or does it break proximate cause
o Intervening and Rescue
 Hypo: walking around a lake, see a drowning person as result of negligence; there is a life preserver next to you but you decide not to throw it
• Are you an intervening superseding cause, which would relieve the primary negligent actor from drowning
o No, generally you have no duty to rescue
 Exception to no duty
• D, under K or otherwise, is under a duty to protect the P against criminal misconduct and fails
o Failure to patrol an area
• Affirmative act destroys or defeats a protection which P has placed around his person or property to guard against crime
o Employee leaves keys in door of jewelry store while closing
• D brings into association w/ P a person whom he knows or should know to be peculiarly likely to commit crime, under circumstances creating a recognizable risk that eh will do so
o Hiring a security guard with a criminal record
• D has taken custody of a person of dangerous criminal tendency and fails to restrain him
o Prisoners that escape
o Intervening drunkenness
 Majority: almost all ct. decline imposing liability on social host when the recipient of the alcohol is an adult
• General Rule: in an ordinary able bodied man, it is the consumption of the alcohol, rather than the furnishing of the alcohol that is the PC of any subsequent occurrence
• Policy for no liability
o Social host is in a different position than a licensee who will be held liable
o Lack of knowledge about hwo is drunk
o Guest at parties serve themselves and others
o Host drinks with the guests
o Amount of force should be used to restrain a drunk guest is questionable
o No chance of loss spreading making it especially detrimental to a host
 Unlike a bar that has other ways to spread the loss through the business and profits
 Minority: Kelly v. Gwinnell
• D serves the driver liquor and the driver hits the P, host and driver held liable
o When host provides liquor directly to and even beyond the point at which the hos knows that the guest is intoxicated, and does so knowing the guest will drive shortly thereafter
 Host is liable for foreseeable consequences to third party as result of guest driving drunk
 Exceptions
• Social host furnishing alcohol to minors
• Commercial dispenser of liquor
o Dram Shop Acts: Commercial dispensers are liable for damages
• Employers
o If employee gets drunk at work or wrok related event, employer liable for damgages
o Test to apply
 Ct. usually apply foreseeability of the consequences test
 Foreseeability Rule: Generally courts use a foreseeability rule to determine whether a particular intervening cause is superseding.
 1. Test: If D should have foreseen the possibility that the intervening cause (or one like it) might occur, or if the kind of harm suffered by P was foreseeable, D’s conduct will nonetheless be the PC. But if neither the intervening cause nor the kind of harm was foreseeable, the intervening cause will be a superseding one, relieving D of liability.

o Intermediate Rules
 Second accident
• Due to neg., P is injured, and for some reason injured again by a second accident, the primary negligent actor is liable for both injuries
o P is thrown from car into street, then run over by another car
 Attempt to escape from danger created by D
• If a person pulls another off of a train due to falling from the negligent driving of the train, the train company is liable for both of their injuries since they created the danger
 Attempt to alleviate harm caused by the D
• Physician treats the P’s injuries and negligently aggravates them
o D is liable for aggravation
 Second injury caused by weakened condition resulting from first injury
• First D is liable for the second injury
 And shifting responsibility
* If x is aware of the risk caused by D, but consciously disregards that risk, then Xs going forward generally supersedes, and shifts the risk away from D to X.

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Proximate Cause Recap

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Recap
Foreseeable results caused by foreseeable intervening forces
• Dependent intervening forces are always almost forseeable
o Rescue is a foreseeable response to an accident or injury. Thjerefore, the initial tortfeasor will still be on the hook when either the injured person is hurt worse, or the rescue is hurt.
 D hurts P. P is then injured worse when the ambulance is speeding to the hospital and gets into an accident.
o Medical malpractice
 D1 hurts P slightly. D2, a doctor, hurs P worse while treating ihm. D1 is the PC of the whole set of injuries
• Independent intervening forces may be foreseeable where D’s negligence increased the risk that these foces would cause harm to the P.
Foreseeable results caused by unforeseeable intervening forces – D usually liable
• D failed to clean residue out of an oil barge, leaving it full of explosive gas. Negligence exists and an unforeseeable bolt of lightning struct the bolt, exploding the gas and injuring workers. D liable
Unforeseeable results caused by foreseeable intervening Forces- D not liable
• D, was driving reckeslessly during a violent windstorm, creating a risk to P, his passenger, since D would not be able to stop the cab in time to avoid an accident. D slammed on his brakes to avoid a large branc in the road, causing his cab to swerve sideways onto the shoulder. Before he could proceed, another branch crashed onto the roof, breaking a way and causing P to be cly by flying glass. D is not liable toP even though his negligence driving was the actual cause of P’s injury
Unforeseeable results caused by unforeseeable intervening forces – D not liable
• D negligently blocks a road, forcing P to take an alternative road. Another drive negligent collides with P on this road, injurying him. Even though D is an actual cause of P’s injury, the other drive’s conduct is an unforeseeable intervening force because D’s negligence did not increase the risk of its occurrence. Thus, the other driver is a superseding force that cuts off D’s liability
Unforeseeable extend or severity of harm – D is liable

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Joint Tortfeasors

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Whenever you have multiple tortfeasors, consider whether they will be “jointly and severally liable.”
1. General rule: If more than one person is an actual and proximate cause of P’s harm, and the harm is individable, each D is liable for the entire harm.
2. Indivisable harm: “was the harm to P indivisible?” If not, no JS liability
a. D1 and D2 shoot at P. D1 hits P in the leg, D2 hits him in the eye. If we can apportion the harm, including pain and suffering, there there is no JS liability; each D pays only for the harm he himse created.
• Joint tort
o Original: when 2 persons act in concert to commit a crime and reach the same consequence
 Like conspiracy
o Procedural: 2 persons are joined as a D in ct. of law in action of tort
• Field Code 1850
o Joinder of D was permitted when 2 D have claims of interest in conflict adverse to P
o Allowed in tort of D’s not action in concert, but independent acting in wy that would bring about single, indivisible harm to P
 Independently guilty of wrong
• Joint and Several Liability
o P can collect damages from one, all, any combo of joint tortfeasors in any portion
 Several liability
• Each D only liable for proportional % of total liability
o No need for contribution
o D1 negligently scratches P. P goes to the hospital, where she is negligently treated by D2, a doctor, causing her to lose her arm. P can recover her entire damages from D1, or her entire damages from D2, though she cannot collect twice.
o Common Law: Joint tortfeasors who could be sued were subject to joint and several liability
 Sue both D for damages, receive judgment against both jointly for full amount
 Can collect judgment against whichever D you choose
• Enforce only against 1 and that 1 cannot get contribution from the other D
 If release of any of joint tortfeasors, operate to release everyone else
• If all equal at fault b/c of concert of action, one should not be released
 Evolution: Court found a way around
• If settle out with you D, instead of release of al claims give covenant not to sue
• Focus on indemnity: shift of whole liability from 1 party to another
o K of indemnity
o Indemnity in favor of 1 liable only vicariously
 Ex: respondeat superior, employer can get indemnity from employee
 Indemnity when 1 D much less at fault than another
• Active tortfeasor indemnity passive tortfeasor
o What is active or passive
 Market Share or enterprise liability
• Extended to 3 parties
• If P cannot prove which D caused injury, but can show that all were negligent, ct. may place upon each D the burden of proving that he did not cause the injury
o If given member of class of D is unable to prove they did not cause the injury
 If given member of class of D is unable to prove did not cause injury, ct. may require him to pay the % of the P’s injuries equal to % of market sales in that area for that type of product
o Situations arise when the P’s injury is caused by a product and all manufacturers of this product were negligent, bu P cannot prove who caused the injury due to the passage of time or the fact that the products were indistinguishable
 Several vies about the scope of the doctrine
• DES or other products
• EXAM NOTE:
• Fact pattern involving injury due to corporations negligence
o Throw in purposes of tort liability
 Enterprise liability
 Ability of corporations to pass these costs off to the consumer
o Short Answer

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Limited Duty (Failure to Act)

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Look for sitatuions where D fails to act.
1. The core rule is that a person generally has no duty to assist another, even where he could do so easily.
Ex. D jogs by, sees P drowning, doesn’t pull P out or call for help. D is not liable
Exceptions
• Owner of business premise – Has a duty to help one who is on the premises, regardless of source of danger.
• Common carrier: a sub rule: Comon carriers have a special duty to help passengers, including protecting them from third-party wrongdoers. Those in business of carrying passengers and goods who hold themselves out for hire by public owe degree of care of very cautious and prudent person; not higher then RPP just diff circumstances
• D created the danger, d has a duty to help if D’s conduct created the danger.
• D undertakes to assist: D has a duty to render assistance if he “undertakes” to furnish assistance. If D starts, he must follow through.
o If D promises to render assistance, does that bind D? Most courts today find that a promise alone can be undertaking.

o Duty
 1 has no duty to protect others from harm not threatened by you
 No duty to take affirmative action to one in peril not threatened by you
• There is a duty to warn based on info that D has about the danger to an unsuspecting P
o Tarasoff
o If you hear of another’s intention to kill and you are have a relationship to the P to make it reasonable, you have a duty to tell the authorities
• Good Samaritan Problem
o If duties come from social rules of coordinating conduct, not from the ct., rules attach to actions of people doing or not doing something
o May be uncharitable not to help, but not an injustice
• Exceptions
o If you undertake a duty to protect from harm, one assumes a duty
 Ahead of time or at time of peril
 Limit: when the D’s conduct put the P in a worse position than before
• Deters others from rescuing
• D had duty to take reasonable cayre
• Undertaking which is simply a promise w/o consideration
o Special Relationships
 Employer/employee
 Common carrier/passenger
 Innkeeper/guest
 Temporary legal custodian/guardian
• Grade school/student
 Landowner/business invitee
• Comes onto the property for your benefit
 If act increases risk of harm, have duty to help
• D negligently or innocently acted in way that places P in peril
 D special relationship to third party threatening hatm to P
• Had either legal and practical control or at least practical control
o Parent/child: liability failing to control child when warned that child is a danger to others; duty and power to control
o Employer/employee: even if conduct not within scope of employment
o Auto owner/potential driver
o Legal custody of lunatics, criminals, contagious diseases

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Duty of Care (Privity of Contract)

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• Basic Rule: if obligation to act affirmatively comes solely from the K, the duty is owed only to the other party in the K
o Duty comes from the K
o Sometimes P may be in K w/ D and harmed by D’s conduct
 Either tort or K action
• Distinction between
o Nonfeasance: no tort to third party (not doing the job agreed to)
 just promise and breach of promise
 K remedy
 The only one that can sue the other is the other K party
o Misfeasance:
 Started to act under K and action threatened ot caused harm to the P
• P (even if not under K and action threatened or caused harm to P
o P (even if not under K w/D) may be able to recover
• What happens when injured P is not a party to K w/D?
o Third party beneficiary rules
 Used in professional liability cases
 If K entered into to benefit third party, a third party can sue the party who breached because purpose of K is to benefit third party
• Automobile manufacturer and supplier of wheels. Wheel fails resulting in injury to third party that it was intended for and the third party can be a beneficiary for the misfeasance
• IL: in order to apply the test, must intend to be benefited and named in the K itself

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Negligence (Damages)

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Essential element of P’s prima facie case for negligence. This means actual harm or injury. Damage will not be presumed. Thus, nominal damages are not available in an action in negligence; some proof of harm must be offered.

1. Personal Injury
a. Plaintiff is to be compensated for all his damages, both special and general.
i. General damages: recover w/o specially pleading the damages
1. Pain & suffering - past & future; physical & mental
a. Justifying is a guess
i. Impossible to translate P&S into something all agree on
b. Must be proportionate to other damages
2. Permanent disability
3. Permanent disfigurement
ii. Special damages
1. CL: not necessarily accompany physical injury in alleged tort (specially pleaded)
a. Medical expenses - past & future
b. Lost earnings/wages - past & future
2. Modern: econ loss, out-of-pocket, sunk costs
a. Medical expenses - past b/c sunk
b. Lost earning/wages - past b/c sunk
o Reasons for remedy
 Nominal
• Vindicate the claimed right
• Small sum awarded to 
o Judgment available as matter of record
 Compensatory: most VIP in tort
• Restore the  to the position prior to the tort
o Closest possible financial equivalent of the loss or harm suffered by 
• Backward looking
• Elements
o What is allowed
o Generous compensation principle:  should redress to put  back in position as she was before
 Punitive
• Over & above compensation
• Punish & make example of , & deter  & others
o For particularly outrageous conduct
o Rules
 Motion for remittitur
• Motion for a new trial b/c jury came to wrong amount of damages b/c of passion/prejudice or mistake
o Adjust amount is the condition for new trial
 Most jury could have found is X, but found X + (Y & Z)
 Not give new trial if  will take X
• X is the reasonable amt. judge will offer
 Maximum recovery rule
• Like DV: most that a reasonable jury could give based on this evidence
o Lost earning/wages - past b/c sunk

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Defenses to Negligence (Contributory Negligence)

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Contributory Negligence
1. Absolute Defense – Core principle of CL CN. Wipes out P’s claim even if D’s negligence is much greater than P’s
2. State assumptions – Examine the behavior of everyone you’ve identified as a potential P and ask, “did he/she behave with reasonable care?”
a. CN will consist of P’s failing to notice, or disregard danger to himself (not to others.
i. P should have notice danger, and diddn’t
ii. P noticed the danger, and unreasonably decided to encounter it anyway
iii. May also be assumption of risk: Where P notices the danger and disregards it, remember that this isn’t necessarily CN, perhaps P’s need was so great that P was reasonable in subjecting himself to the risk.
iv. P couldn’t have known of danger
1. It’s not CN to fail to protect oneself against unknown danger, and the fact that P “could have protected herself if she had known of the danger” is irrelevant
2. Danger in plain view: Possible tip-off for probably existence of CN
v. Discuss possible statutes: CN ordinarily defense to negligence proved by D’s violation of statute. But where D negligence arose from violation of a statute designed to protect this particular class of P from their own incapacity and lack of judgment, then P’s CN is not a defense.
vi. Causation: CN is only a defense if P’s negligence was a cause of P’s injuries
1. P doesn’t wear his seat belt, and crashes due to D’s negligence. If P would have died anyway, even with a seat belt on, the failure to wear the belt wasn’t a cause in fact of P’s injuries, and CN will not apply.
vii. CN is not a defense to:
1. Intentional torts
2. Strict liability

• Contributory Negligence: complete defense in tort. Doctrine provides that a plaintiff who is negligent, and whose negligence contributes proximately to his injuries, is totally barred from recovery.
• Overturned in most states
• Basic rule: no recovery rule
• Applied when P failed to exercise ordinary care for P own safety
• Cause in fact & PC of P injury
• Not any negligence
• P, while crossing street, fails to pay attention. D, travelling at a high rate of speed while drunk, hits and kills P. Had P behaved carefully, he would have been able to get out of the way. Even though Ds negligence is much greater than P’s, P will be totally barred from recovery because of his contributory negligence, if the doctrine applies.
• Basis for defense: way of determining whether D negligent to P in 1st place
• Even though D breached social rule, P acting in certain way, might not be in the class rule intends to protect
• Justifications
• Penal basis
• Punish P for misconduct
• P should come to ct. w/ clean hands
• Deterrence
• Last responsible wrongdoer
• Intervening conduct of P is always superseding cause of Pharm

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Negligent Infliction of Emotional Distress

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Negligent infliction of emotional distress
Look for situations where P may have a claim for “mental suffering”
1. Must be physical manifestation:
a. If p suffers no physical impact and doesn’t get physical symptoms from her assert suffering, the court is likely to hold that the mental suffering did not merit compensation.
2. Tacking on of suffering:
a. If p has direct physical injuries, the mental suffering can in all courts be “tacked on”
3. Where it’s important
a. P in physical danger: First, P is herself in physical danger, and is frightened solely ofr her own safety.
i. P is about to be run over an djumps out of the way. P can recover for her mental distress, both at the moment and reliving the near accident.
b. P witnesses accident.
i. P witnesses an accident to another person, and P’s mental suffering is mainly her fear for the other’s safety.
1. P within zone of impact/danger: If P was withinthe “zone of impact”, virtually all courts will allow P to recover for mental suffering. SO if the facts tell you that P was walking alongside of her husband X, and X is run over or otherwise hurt, then P can recover for mental suffering.
2. P not within zone: If P was not within the zone of impact, but was “present” and viewed an accident to another, some courts have abolished the “zone of impact” requirement and allow P to recover for fear for the safety of the injured person.
3. P does not see accident at all, but merely hears abut it later, no court seems to let P recover for mental distress, even if the injured persons is P’s close relative. NO RECOVERY for coming on scene later.
o No Cause of Action
o Impact Rule
 If D’s conduct threatens physical harm to the P and is negligent because of that, and conduct is a physical impact (even If not harmful), P can recover for emotional distress
o Zone of physical danger plus physical harm as a result of serious emotional distress
 Was the P within the zone of physical danger threatened by D’s negligent conduct and threat of physical harm did cause emotional distress and emotional distress caused physical harm to the P
 Exceptions: Special social rule to protect the well-being of survivors
• To apply: use hazard/class test
o Dead body
o Death telegrams
 Misdelivered telegram about death

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Defenses to Negligence (Comparative Negligence)

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1. Must talk about most states moved from contributory to comparative. Should talk about whenever the facts indicate that P may have been negligent.
2. Must be on negligence claim
• 1st find P contributory negligent but not bar claim
• Reduce P recovery by % of total fault P negligence
• 2 forms
• Pure: regardless of %, P always recover something
• Only reduced by P % of total P fault
• Modified
• Types:
• 50%: P negligence not > D negligence (is as great as D negligence), P cant recover
• 49%: P negligence not as great as D negligence,P can recover
• VIP that jury be told what the consequences of finding % fault for modified
• How does the jury determine %

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Defenses to Negligence (Assumption of Risk)

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• Assumption of Risk & Failure to Take Precautions
1. If AOR is on test, first define it. “P may be barred from recovery when an injury results from a danger of which P was aware and that P voluntarily encountered.”
a. D offers P a ride home. P knows that D is slightly drunk. P has other ways to get home, but this way is a little easier. If D crashes because of being drunk, then at CL P is barred from recovery by AOR.
2. Look for situations where P knows about a danger in advance, and nonetheless decides to go forward
3. Was the risk truly known to P?
a. P is driving on road. D, who is stropped on the road to fix flat, put flares 100 feet before his car. If P sees flares and understands that they are meant to slow down motorists, he is bound by AOR because he “knows” of the risks. IF P doesn’t see flare, AOR does not apply
• Express
• General rule: K agree to release ahead of time a party whose conduct might cause P harm is enforceable over broad range of cases
• Consideration in release
• Permission to enter & engage
• Medical insurance policy
• Exceptions when K violate public policy
• Relationship, not bargain for
• Discrepancy in bargaining power
• Violate safety statute
• Public interest
• To determine
• Business of type suitable for public regulation
• Perform service of great importance to public
• Holds self as willing to service for any member of public seeking it
• Decisive advantage in bargaining strength against member of public seeking service
• Standardized adhesion K of exculpation
• Person/property of purchaser is placed under control of seller, subject to risk of carelessness by seller or agents
• Extend to common carriers rule/public warehouses
• Not cover extreme negligence
• P assumes the risk of D willful, wanton, reckless, or gross negligence
• Not cover intentional torts
• P did not know of the terms
• reasonable person would not know
• Implied
• Ct. implies, traditionally complete defense if all following proved
• Risk of harm to P cause by D conduct or by conditionD land/chattel
• P had actual knowledge of particular risk posed by then D negligent conduct or land/chattels &appreciated/understood its magnitude
• P voluntarily chose to remain or enter w/in the area of the risk under circumstances which manifested his willingness to accept that particular risk
• Voluntary: not whether P had a choice or not
• Rather, whether D coerced the P
• By presenting wrongful alternativesor
• By presenting choice that D had no right to present to the P

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RESPONDEAT SUPERIOR

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This doctrine imposes vicarious liability in several relationships, particularly employer-employee. When an employee is acting with the scope and course of employment, his employer can be held vicariously liable for all tortuous acts committed furtherance of the employment.


Respondeat Superior
. 1. Should be thinking RS whenever you have an employee doing something during the course of his job. Most typical, employee driving a car or truck for the employer.
2. Two part test
1. D2 must be the employer of D1, which means that d2 must have the righ to control the details of d1’s performance; and
2. D1 must be acting within he scope of the employment.

2. Applies to intentional torts

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Strict Liability (Animals)

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D isn’t doing anything careless, and isn’t trying to hurt anyone, so you can miss the fact that D is engaging in an activity as to which strict liability might attach.
Animals
1. Whenever fact pattern mentions an animal that does some harm, consider the possibility of SL
a. Wild Animals – Owner is strictly liable for injuries caused by wild animals, as long as the person injure did nothing.
b. Domestic animals- If the animal is “domestic”, then there’s only strict liability where the owner knows or has reason to know of the particular animal’s dangerous characterics.
2. Trespassers must prove negligence
a. Trespassers cannot recover for injuries inflicted by the landowner’s wild animals in the absence of negligence, as where the landowner knows that trespassers are on the land and fails to warn them of the animal
b. A landowner who protects prop by keeping a vicious watchdog that he knows is likely to cause seirous bodily harm may be liable even to trespassers.
i. Intentional tort principle: Because the landowner is not entitled to use deadly force in person to protect only prop, he also may not use it indirectly.


• Strict Liability at Common Law
• History: misc. torts not fitting w/in emerging category of intentional tort or negligence
• Not require intent or negligence
• CA
• Nuisance: substantial & unreasonable interference w/ P use & enjoyment of P property
• No longer used, orphaned
• Liability for trespassing cattle (barnyard animals, livestock)
• Liability for keepers of wild animals that attack people
• Std./custom of the community
• Ex: elephant not wild in India, but is wild in England
• Scienter liability for keepers of domestic animals known to be vicious
• Knowledge of D who kept the animal
• Proving knowledge
• General nature of the animal
• Ex: dog not have to bite before knowing that it might
• Elements
• Any kind of animal
• Known to attack people
• P only has to show that the D kept the animal
• Principles behind
• Customs of community
• What the P reasonably expect of others
• In US: each state make own law
• Most: reception statutes � accept CL of England except where in contrary to customs, traditions, beliefs of that state
• Early Western states (IL) not adopt strict liability for cattle
• Wild animal not customarily owned in that area
• Elements for all CA are not the same & the basis for liability is not the same
• Defenses
• PC
• Hazard/class
• Ultrahazardous activity – Page 43 Supplement
• Intervening act of God b/w D conduct & P injury
• PC elements prove superseding cause
• Assumption of risk
• However, contributory negligence is not

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Strict Liability (Abnormally Dangerous Activities)

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• Abnormally hazardous or Ultrahazardous
• 1st Restatement of Torts
• � 519 Miscarriage of Ultrahazardous Activities Carefully Carried On
• One who carries on an ultrahazardous activity is liable to another whose person, land or chattel the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.
• � 520 Definition of Ultrahazardous Activity
• An activity is ultrahazardous if it
• (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and
• (b) is not a matter of common usage
• Explain:
• Well defined PFC
• Many ct. still use the 1st Rest. b/c of this
• Gives rise to SL
• Common usage
• It may be done everyday, but how broad is the participation
• Ex: a gasoline tanker truck is driven everyday, but not by most people
• Hypo:
• D driving a tanker truck, P pulls out in front of the tanker, the D cannot stop in time & smashes into the P.
• D SL?
• No, if no explosion, the injury is not the result of the hazard making the tanker hazardous
• 2nd Restatement of Torts
• � 519 General Principle
• (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
• (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
• � 520 Abnormally Dangerous Activities
• In determining whether an activity is abnormally dangerous, the following factors are to be considered:
• (a) existence of a high degree of risk of some harm to the person, land or chattels of others;
• (b) likelihood that the harm that results from it will be great;
• (c) inability to eliminate the risk by the exercise of reasonable care;
• (d) extent to which the activity is not a matter of common usage;
• (e) inappropriateness of the activity to the places where it is carried on; and
• (f) extent to which its value to the community is outweighed by its dangerous attributes.
• Explain
• � 520 is a description of what the ct. uses to make its decision
• Must it meet all the factors?
• Is each factor a sliding scale?
• No guidelines on how to weigh each factor.
• Different judges apply different facts to determine each factor
• The factors
• (b), (d), (f) are sliding scale
• (a) & (c) are on/off or Y/N
• (e) is whether the activity is natural or unnatural
1. “One who carries out an abnormally dangerous activity is strictly liable for any damage that proximately results from the dangerous nature of the activity
2. Is the activity in fact “AD”
a. Blasting or use of explosives
b. Nuclear power plant
3. Type of risk issue: Did the type of harm that occurred result from the type of risk that made the activity abnormally dangerous in the first place? If not, SL for ADA does not apply.
4. AOR as defense: AOR is a defense to SL
a. If P sees a sign saying, “Blasting, Keep Out,” and P enters any way and gets hurt, he’s probably bared

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Purpose of Tort Liability

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o Compensate innocent victim or injured party
 Restore injured party to original condition before the injury
• Make financially whole
 Would be unfair b/c the wrong-doer is liable even if not at fault
o Punish the wrong-doer
 Appropriate for  deliberately & w/o justification inflicts physical harm on 
 Prevent one from taking law into own hands
• Peaceful means
 Prevent vengeful feuds or retaliatory violence
o Deterrence of injurious or potentially injurious conduct (Holmes)
 Means to an ends of discouraging wrongful conduct & encourage socially responsible conduct
 May lead to over-deterrence (people not do anything out of fear) or under-deterrence (do not act for threat of tort liability)
o Loss spreading
  is a conduit through which the whole community bears the burden of injuries
• Overhead costs: cost of insurance & cost of products
 Changes many attributes of legal responsibility by leading to
• Belief that burden of damages should not crush 
• Belief that moral blameworthiness should not be sole basis for shifting loss
• Diversion of attn. from social deficiency as the paramount criterion of legal responsibility to a quest for the person in the most strategic position to distribute the compensation cost
 Criticism
• Tort liability is only concerned w/ injuries by one person to another
o Discriminate to general social welfare system
• Assume that cost spread will be small & the marginal utility of the dollar
• Government is best agent to spread the loss
o Enterprise liability
 Very similar to loss spreading
 Allocation of full econ cost of activity to those engaging in activity
• Spread loss among kind of people who benefit form activity that caused harm to 
o Optimal cost avoider
 Econ notion of deterrence
 Those in activity in best position to make it safer
 Problem: people compare cost of future liability w/ cost of safety precautions
• Choose cheaper one
 See last rationale for SL of defective product
o General welfare
 Personal security w/o over-deterrence
 Purpose of tort is not to meet a moral standard but to assure reasonable freedom of others w/ the protection of the individual from injury
o Redress private wrongs
 Prevent social rapture (personal component of injury)
• Damages: determined by measuring harm/loss to the  due to  conduct
 Want to coordinate activities according to established patterns of behavior (social component of injury)
• Allows members of community to pursue goals w/o interference of others pursuing their goals
• Support common good
 Ct. (community mechanism):
• Give individual a sense of worth as respected member of community
• Promote common good by reaffirming social conventions/vision of community in which people treat each other justly
 Person liable for failure to observe social rule designed to coordinate conduct

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Holding

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 Rule of law necessary to resolve procedural Q before the ct. based on facts assumed to be true
• If X [facts] then Y [legal result]
• Can't have holding if no PP or facts
 Can be interpreted different from case to case
• To distinguish from prior case
o Read holding more narrowly

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Burden of allegation

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P allege facts sufficient to support claim & CA

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Burden of presenting evidence

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• Give evidence to support CA
o If do not, may have DV against

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Burden of proof

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persuade jury that your evidence is more often true (preponderance of evidence)
• Party that has it has risk of non-persuasion of the jury
• Necessary to jury instructions
o Determines how persuaded the jury must be to find for the 
o If cannot make up mind, must always find against the party that has the burden of proof

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Jury instructions

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 Tells jury what to find if they conclude certain facts are or are not true
• Gives the law to apply in particular case
 If you find X,Y,Z must return verdict for , unless you find A,B
• Not tell what facts to find
• Just determine the facts that are true

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Procedural issue

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motion filed by the parties & the ct. ruling(s) on these motions
• Determines where the ct., either in first instance or on appeal, gets the facts it assumes as true
• Error of law

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Substantive issue:

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What is the outcome of this case given the facts the ct. assumes as true?
• Substantive holding is the rule of law necessary for the ct. to resolve the dispute based on facts the ct. assumes as true
o Facts that are true:  declarations &  additional facts

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Where the ct. gets the facts it assumes as true

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 Sufficiency of the evidence: looking at the evidence in the light most favorable to the non-moving party & assumes as true those facts that a reasonable trier of fact could determine to be true looking at all the evidence in that light
 Demurrer:
• Legal "so what"
o Admit the fact but say that it is not grounds for legal right
o Not an issue of fact but of law
• Ct. assumes as true all facts alleged in the 's complaint, & if they do not establish the CA or legal right the  is claiming in his/her case, the demurrer will be granted
 Summary judgment
• Prior to trial
• Original intent: to weed out complaints that don't have evidence to support them
o Put up or shut up
o No admissible evidence to support � 1 element of claim
• Other purpose
o Not give 2nd chance to find more evidence
 Motion for Directed Verdict (DV)/Motion for Judgment Notwithstanding the Verdict (n.o.v.)
• Ct. uses sufficiency of evidence
• DV necessary in order to maintain judicial control over law applied to case
o Is evidence sufficient to find for the non-moving party?
 In ruling on DV, ct. will look at all the evidence in light most favorable to the non-moving party & assume as true those facts that a reasonable jury, looking at the evidence in that light & following the instructions of the ct., could reasonably determine to be true
o Judge takes over the fact finding b/c the evidence is so compelling to one side

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Rule on new trial

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 Formula: app. ct. accepts tr. ct. fact record if there is supporting evidence
• Manifest weight of the evidence: std. that tr. ct. uses to rule on new trial after a jury verdict
o Could be based on passion, prejudice, mistake

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Brown v. Kendall

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beginning of modern negligence. rule is liablilty must be base on legal fault
established that P has 3 burdens imposed by the PFC: the burden of allegation, the burden of presenting evidence, the burden of proof.

Articulated for the first time the principles of negligence, which was that for a defendant to be liable in tort there must be FAULT. - D tries to separate some dogs with a stick and accidentally hits the P in the eye. D did not intent to hit the P, but CL would say that he was still liable. But here court says that in order to recover the baseline rule is that a D must be at fault. Say that ordinary care will vary w/ the circumstances of the case, but in general means the kind and degree of care that a prudent man would use.

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Williams v. Holland

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This case allowed plaintiffs to sue in case, no matter whether the harm was immediate or consequential, as long as the plaintiff could show negligence.

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Proof of Negligence: 3 approaches by jurisdictions to the violation of statutes

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 Negligence per se (unexcused violations are negligence)
A. Limits so that if there is evidence of a violation as a matter of law
1) Like presumption, but evidence by D (the only thing they can rebut is evidence of an excuse for violation) not just that a reasonably prudent person would have violated the statute
- D can’t present evidence of due care
- Must present evidence of legally excusable violation of statute
2) Whether it meets the hazard/class test is always a Q for the judge b/c of statutes
 Rebuttable presumption of negligence
A. Evidence of violation of a statute
1) Tends to prove a basic fact of a violation
- Basic fact raises a legal presumption that something else is also true
- Another fact (that D is negligent, if D doesn’t rebut this)
 If evidence Is so strong to fail to find a violation, then the ct. instructs the jury that if they can find that the D violated the statute, they must find that the D was negligent
 Shifts the burden of going forward with the ev. To the D
 B/c D can produce evidence tending to disprove negligence even if there is a violation of the statute (ORPP would have done the same)
 If D does this, the Ct. leaves it to the jury to decide w/o the above instruction
B. If
 Violation of Statute is just some evidence of negligence
A. Some evidence of negligence by D
1) Does not shift burden of going forward w/ the evidence or of burden of proof
2) IL rule