Torts I Outline - Fall 2009, Prof. Liu: Chapter 1. Overview of Modern Tort Liability

TORTS I OUTLINE_ FALL 2009, PROF.
LIU
CHAPTER 1. OVERVIEW OF MODERN TORT LIABILITY

A. Personal Injuries and Property Damage
a. Tort law seeks to:
i. Allocate rationally and fairly the costs of past accidents by determining whether and in what amount
the ∏ is entitle to recover from the ∆
ii. Seeks to minimize the cost of future accidents by deterring persons from engaging in activities that
are likely to give rise to harm
B. 3 Categories of Tortious Conduct
a. Intentionally Inflicted Injury
b. Failure to Exercise Reasonable Care
c. Strict liability
CHAPTER 2. BASIC INTENTIONAL TORTS
Intent:
(1) Purpose – personal desire on the part of the actor to produce a particular result
(2) Knowledge – actor is substantially certain that a particular result will occur, even if that end is not
desired
a. Garratt v. Dailey – woman, who had arthiritis, had already begun the slow process of sitting
down when the boy moved the chair, and therefore he knew, with substantial certainty, that the
woman would fall. Accordingly, boy was held liable
b. Vosburg v. Putney – young schoolboy deliberately swung his foot across the aisle to trip a
classmate, which resulted in unexpected serious medical consequences for the victim. Because
I. THE CONCEPT OF INTENT

Intentionally Inflicted Injury
A. Proof of intent to harm is not a pre-requisite to intentional tort liability. The ∆ may be liable although
intending nothing more than a practical joke.
B. Intent that is necessary for battery is the intent to make contact, not the intent to do injury.
a. Lambertson v. United States – in an act of one-sided horseplay, an employee of ∆ jumped on the ∏’s back
and pulled a cap over his face, causing him to strike nearby meat hooks and sustain injuries. Even though
the ∆ meant “no harm,” it is irrelevant b/c ∆ had the intent to make contact
Intent and Mistake

A. The fact that a ∆ makes a mistake in good faith, and perhaps even reasonably so and unavoidable, does not
by itself serve to absolve the ∆ of liability, so long as the result was intended
a. Ranson v. Kitner - ∆ shot the ∏’s dog, thinking it was a wolf. Although they were acting in good faith,
court held they were liable b/c the impact of the bullet on the animal, was intended and not the result of
inadvertence. However, had the ∏ disguised the dog as a wolf for the purpose of tricking the ∆s, the ∏
would not have been allowed to recover (exception).
B. Policy of the law is that as b/w two parties who may be equally blameless, the loss should be placed on the
party who made the mistake and intended the result
C. Exceptions:
a. Mistake and privilege – the existence of a mistake may give a ∆ the ability to assert a privilege which will
defeat the tort (i.e., conduct of a police officer, self defense)
b. Induced mistake -- ∆ may escape liability by proving that a mistake about the facts was induced by the ∏,
for under such circumstances the parties are no longer equally blameless (tricking someone); thereby,
conduct constitutes consent
c. Consent is a complete defense
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TORTS I OUTLINE_ FALL 2009, PROF. LIU
Intent and Insanity
A. McGuire v. Almy - ∆, a “mental case,” struck and injured her nurse w/ a piece of furniture after threatening
that if anyone entered her room “she would kill them.” Court found that in some instances other policy
considerations take precedence ocer the fault principle. If the ∆ is capable of entertaining, and in fact
entertains, the same intent that would be sufficient to hold a sane person liable, then liability will be imposed
regardless of whether the insanity produced the intent.
a. Courts decided McGuire v. Almy based on three policies:
i. Deterring accidents – “imposing liability tends to make more watchful those persons who have charge
of the ∆ and who may be supposed to have some interest in preserving his property.”
ii. Deep pocket rationale – a loss should be shifted to the one who caused the loss, if that person can
afford to bear it
iii. Judicial efficiency (policy of avoiding “dismal swamps”) – “courts lath to introduce into the freat body
of civil litigation the difficulties in determining mental capacity which it has been found impossible to
avoid in the criminal field.”
Transferred Intent
A. If the ∆ intended to cause any one of the 5 trespassory torts (battery, assault, false imprisonment, trespass
to land, and trespass to chattels), the ∆ “intended” to cause an invasion w/in that range of actions that
befalls either the intended victim or a 3rd party.
i. ∆’s intended act is so wrongful that the ∆ should not be permitted to escape liability for damages that
in fact were inflicted merely b/c the ∆ did not fully anticipate the source of events as they matured
(1) Keel v. Hainline – Eraser battle erupted while a teacher was absent from a classroom. Although
the boy throwing the eraser intended to strike or scare someone near the far wall, the projectile
followed a different course, hitting the ∏ in the eye (battery). The court held the ∆ liable on
transferred intent. The ∆ intended to invade the interests of the ∏, and in that sense the resulting
harm was not accidental, even if unexpected.
ii. Exception: if the ∆’s conduct was not wrongful in the first instance, the doctrine of transferred intent
should not give rise to liability
(1) Brudney v. Ematrudo – police officer attempted to use reasonable force to liberate another officer
from an attack by a demonstrator during a campus riot. In the process, the officer struck a third
person w/ his nightstick. Court held that there could be no liability to the third person for assault
or battery b/c the ∆ had acted w/in reasonable limits.
Liability for the Torts of Minor Children ----- PG 54 of txbook

A. Liability for the Torts of Minor Children
a. General rule: children are liable for their torts. However, immaturity may be a factor in negligence…
parents are generally not liable for the torts of the minor, however, they can become liable when:
vicarious liability (respondent superior), primary liability (concerted action, failure to control), and
statutory liability
i. If the minor child has money or property, the judgment may be executed against those assets
(1) If there are insufficient assets from which to collect a judgment, the judgment-holder may
continue to renew the judgment, at statutorily prescribed intervals, until such time as the child
obtains money or property on which to execute.
ii. Parental-liability statutes vary in coverage. Namely, those concerning the type of conduct which may
serve as the basis of liability and the limits, if any, on maximum dollar recovery. Under some
statutes, the child must be of a certain age (13-18) and the tort must be of a particularly egregious
nature.
iii. Parents or guardians may be held vicariously liable for a minor child’s tort if the ∏ can establish that
the tort was committed w/in the course and scope of a relationship to which the doctrine of vicarious
liability applies, such as employer-employee or principal agent. (A mother may be held liable for an
auto accident caused by her daughter in the course of making a delivery for the mother’s business.)
iv. Liability of a personal nature will be imposed if a parent directs a child to commit a tortious act or
knowingly assists tortious conduct. Also, a parent may be held liable on a primary negligence theory
for failure to control a child w/ specifically known dangerous tendencies.
v. The actions of a child may fall w/in the scope of the child’s parents’ insurance coverage
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*Vicarious Liability-mental liablility for the wrong of another in the cause of buisness
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II. BATTERY & ASSAULT
Overview
A. A tort victim unaware of an offer of physical contact prior to its infliction suffers a battery without an assault.
And if the victim is cognizant of an imminent threat, but the perpetrator resists before the blow is struck,
there is an assault without a battery. Thus, either tort may exist independently of each other, although the
two actions frequently coexist, as where, the ∆ grabs the ∏ by the throat and physically prepares to strike.
Battery
Battery: the intentional infliction of harmful or offensive contact w/ the ∏’s person w/o consent or
privilege.
∆ ∏
Intent Contact
(1) purpose, OR (1) Harmful, OR
(2) knowledge (2) Offensive
No privilege No consent
A. Elements for a prima facie case:

a. Intent (purpose or knowledge) to make contact (or transferred intent)
b. Offensive (i.e., unreasonable) or harmful touching of the ∏’s person or effects; AND
c. Absence of consent
B. Notes on Battery
a. Harmful and Offensiveness
i. Intent to make contact followed by contact that is unconsented (harmful or offensive) is all that is
necessary, NOT INTENT TO INJURE.
ii. Harmful – any unconsented alteration of a structure or function of the body even if the change does
not affect the ∏’s health.
iii. Offensive – standard is that of an ordinary person, unless the ∆ knows that the ∏ has a peculiar
sensitivity, in which case a touching may be actionable even if it would not be considered
unreasonable by an ordinary person.
b. Presumed Consent
i. Not every intentional touching of another’s body is a battery. It MUST be unconsented to and either
harmful or offensive. Contact is offensive if it would offend a reasonable person’s dignity. Consent can
be presumed in cases of the conduct of everyday affairs:
(1) Noble v. Louisville Transfer Co. – no battery when the taxi driver steadied a little girl who was ill by
placing his finder on her shoulder.
c. ∏’s Protestations
i. ∏’s protestations can sometimes render permitted contacts into unpermitted ones
d. Good intentions and important goals
i. If the evidence established an intentional, unconsented touching that is harmful or offensive, it is
irrelevant to the issue of liability that ∆ sought merely to advance the ∏’s interests or acted in
furtherance of some other important goal. Good intentions are irrelevant in the face of unintended
contact which is harmful or offensive.
e. Indirect force
i. Indirect contact may give rise to battery. The contact required for battery need not be brought about
by the direct application of force to the ∏’s person or effect (pulling chair out from someone,
poisoning someone’s food, operating truck to throw someone out of the bed, striking glass so that
fragments shower the ∏).
(1) Moore v. El Paso Chamber of Commerce – case where a young man chased the ∏ into a glass door
while attempting to catch her. The fact that the girl failed to exerise care on her own behalf was
irrelevant to the question of liability. Contributory negligence is not a defense to an intentional
tort.
ii. The protection from unconsented contact afforded by the law of battery extends to every part of the
body and to anything attached to it and practically identified with it
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(1) Picard v. Barry Pontiac-Buick - ∆ placed his index finger on the ∏’s camera while shouting, “who
gave you permission to take my picture.” The result would have been the same if the camera had
been an article of clothing, a book, an umbrella, or a package.
f. Unanticipated Consequences
i. “Eggshell Skull” – if the elements of battery are shown, it is irrelevant that the resulting injuries are
more extensive than might reasonably have been anticipated (public policy argument).
Eggshell Skull:
The ∆ takes the ∏ as he finds him.
∆ is liable for foreseeable harms even when the amount of harm is not foreseeable. In
other words, the ∆ is liable for aggravation of pre-existing injuries or conditions.
g. Affirmative Action
i. An action for battery cannot be predicated upon mere inaction; there must be some affirmative action
on the part of the ∆ you must act for liability of battery
h. Knowledge of Contact
i. The ∏’s lack of awareness of the contact at the time it occurs, for example, because ∏ is asleep or
under anesthetic, will not defeat an action of battery.
C. It is important to consider:
a. The relationship of the parties involved
b. Availability of alternatives
c. Degree of force that was used
d. ∏’s voluntary presence at a location where touching was foreseeable
e. Anger is not a prerequisite for battery
D. Recovery:
a. Nominal – to vindicate the technical invasion of the ∏’s rights, if no actual injuries
b. Compensatory – compensate the ∏ for such things as lost wages, medical expenses, and pain and
suffering
c. Punitive or exemplary damages – to punish or make and example of the ∆ for conduct that is particularly
outrageous
Assault
Assault:
∆ ∏
Intent Aware of the danger
(1) purpose, OR
(2) knowledge ∏ believes that ∆ has the ability
to commit the threatened
Conduct contact.
Words alone  no assault
(sometimes) Imminent Apprehension: without
Future threat  no assault delay
Conditional threats  depends Fear is not required
on ∆’s legal rights Reasonableness of Reaction:
R2T: It is irrelevant if a person of
ordinary courage would have been
put in apprehension; subjective
standard
Most courts: reasonable person
standard
A. An assault is committed if the ∆ intentionally creates in the ∏ a well-grounded apprehension of imminent,
unconsented, bodily contact. The elements which the ∏ must prove are:
a. Intent (purpose or knowledge) to cause apprehension of contact (or transferred intent)
b. Present apparent ability to cause contact
c. A threatening gesture by the ∆ (at least in most instances); AND
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d. Well-grounded apprehension of imminent, unconsented contact
B. Notes on Assault
a. ∏ must be aware of the ∆’s threatening conduct at the time it occurs
i. Western Union Telegraph Co. v. Hill - ∆’s employee verbally propositioned a woman who wanted to
get her clock fixed. Court held that the issue of assault was properly submitted to the jury, since there
was testimony from which it could be found that the employee had the ability to reach over the
counter and grab the woman.
ii. Exceptions: court make 2 misstatements of the law in rendering its opinion: every battery does not
include an assault and assault is not necessarily an attempt to commit battery.
b. Words alone are not enough to constitute an assault - no assault
i. Verbal qualifications attached to what otherwise would be a threat may prevent the ∏ from proving
well-grounded apprehension of contact
c. Future Threats - No assault
i. A threat to cause harm in the future does not constitute an assault, for in such a case harm is not
imminent
d. Abandonment of Scheme
i. The ∆’s abandonment of a scheme to inflict an assault or battery does not bar liability for assault if
the ∏ has already been placed in apprehension
III. INTENTIONAL OR RECKLESS INFLICTION OF SEVERE EMOTIONAL DISTRESS

Overview
A. Although threats of future harm or words alone generally cannot sustain an action for assault, they may
support a claim for IIED (sometimes called the “tort of outrage”).
B. Emotional distress covers:
a. Fright and shock at the time of an accident
b. Humiliation
c. Unhappiness and depression over inability to lead one’s prior life
d. Anxiety about the future
e. Anger
IIED: an actor who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional disturbance to another is subject to liability for that emotional disturbance and if the
emotional disturbance cause bodily harm, also for the bodily harm.
∆ ∏
(1) Intentional or Reckless (4) Severe emotional distress
(2) By extreme and

outrageous conduct
(3) Casual Link

IIED
A. Elements
a. Intent (purpose or knowledge) to cause emotional distress or recklessness w/ respect thereto;
b. Extreme and outrageous conduct
c. Causation, and
d. Resulting severe mental distress
B. Notes
a. Requires proof of damages, and it does not enjoy the benefit of the doctrine of transferred intent, unless
the ∏ can prove intent or recklessness with regard to the infliction of the mental suffering
b. Egregious Conduct Requirement
i. Conduct which does nothing more than cause trivial upset or minor discomfort will not support a
cause of action. For conduct to be “extreme and outrageous,” it must be “beyond all possible bounds
of decency;” “atrocious;” “utterly intolerable in a civilized community”
c. Abusive language – almost never IIED
i. Insulting words, even if profane, will almost never constitute extreme and outrageous conduct
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(1) Slocum v. Food Fair Stores of Florida - ∏ denied recovery when told by the grocery clerk, “If you
want to know the price, you’ll have to find out the best way you can…you stink to me.”
IIED- Insulting Language: unlikely to be sufficient to give rise to liability for IIED
2 EXECPTIONS:
(1) if ∆ is an employee of a common carrier or public utility
(2) if ∆ has special notice of ∏’s unusual sensibility
d. Known sensitivity
i. In order to prevail in an action for outrage, the ∏ must prove that the ∆’s extreme and outrageous
conduct in fact caused severe emotional distress. There is no right to recovery where, because of
general insensitivity, a stoic disposition (no care, stone faced), or uncommon courage, the ∏ was not
significantly affected by what the ∆ did
(1) Harris v. Jones - ∆ taunted the ∏ b/c of a speech impediment that he had been afflicted w/ for
many years. The ∏ testified he was “shaken up” and “felt like going into a hole and hiding.” He
had seen a physician, and had allegedly suffered heightened nervousness and aggravated speech
problems. Court said his testimony was “vague and weak at best,” and denied recovery. Had his
atty brought forth testimony of those who worked and lived w/ the ∏ to prove that the stutter was
more noticeable, that the harassment affected the ∏’s ability to work, and that the ∏ showed
visible signs of increased nervousness, his case would have been better off in presenting
“evidentiary particulars” which the court deemed it lacked.
e. Bystander and third persons
i. Under limited circumstances a bystander may sue for emotional distress suffered as a result of
witnessing, or later learning about, outrageous conduct directed toward another. Where such conduct
is directed at a 3rd person, the actor is subject to liability if he intentionally or recklessly causes severe
emotional distress:
(1) To a member of such person’s immediate family who is present at the time, whether or not such
distress results in bodily harm, or
(2) To any other person who is present at the time, if such distress results in bodily harm
IIED- 3rd Party: to recover ---
(1) Immediate family member present at time of tort… bodily harm not required
(2) Other persons present at time…. Bodily harm required
C. Avenues for Recovery

IIED- 4 Avenues for Recovery
(1) as a parasitic claim incidental to a tort involving physical injury (dependent upon
bodily harm)
(2) as an element of recovery in an action for non-physical injury torts (libel, slander,
etc.)
(3) as an independent action for IIED
IV. FALSE IMPRISONMENT

Overview-confinment can cause anguish
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False Imprisonment – Act, Confinement, causation, intent, awareness
∆ ∏
Intent ∏ is aware of the confinement or
harmed by it
Confinement by
(1) physical barriers ∏ believes that there is no
(2) use of force reasonable means of escape
(3) threat of force (including to a 3rd
party, or property) No consent
(4) assertion of authority
False Imprisonment
A. Elements for a prima facie case *have to act, negligence not sufficient
a. Intent (purpose or knowledge) to confine
b. Unconsented detention w/in boundaries fixed by the ∆
c. Apparent lack of a reasonable exit
d. Use of unreasonable force, threat of force, or assertion of legal authority by the ∆, AND
e. Harm to the ∏ or knowledge by the ∏ of the confinement
B. Notes
a. ∏ must show proof of damages
b. Unconsented intentional confinement w/in boundaries
i. Confinement must be complete, not partial. There is no action if the ∆ merely obstructs the ∏’s travel
in one direction, if the ∏ is otherwise free to go:
(1) Bird v. Jones - ∏ climbed over a fence into a portion of the highway which had been enclosed for
spectators of a boat race. ∏ was stopped from traveling further in the same direction, but allowed
to return from whence he came. The court held there was no false imprisonment, stating that
more is required than some mere loss of freedom to where one wishes: there must be detention
w/in fixed boundaries.
(2) Confinement is not complete if there is a reasonable exit apparent
(a) Known exit is not reasonable if it entails a likelihood of harm to the ∏, or to the ∏’s property, or
to the person or property of others
(b) If the only means of escape is likely to cause physical harm to the ∏, and the ∏ could safely
remain imprisoned, there can be no recovery for injuries that are suffered in making an escape
c. FI is an intentional tort. Confinement from negligence or recklessness is not redressable by this action.
There must be actual intent or “substantial certainty.” The required intent is the intent to confine.
d. Some states embrace the position and hold that even in the absence of knowledge of confinement there
is liability if the confinement results in harm to the ∏ (“∏ is aware of the confinement OR harmed by it”)
e. ∏’s confinement must be involuntary. If it is caused by the use of physical force, or by an express or
implied threat of the same, whether against the ∏ or a family member, the confinement will be
actionable.
f. Some degree of imminency required in cases where FI is accomplished by making a threat (like assault)
i. Morales v. Lee – no false imprisonment b/c the ∆ had merely threatened to call the police and to have
the ∏ arrested unless she remained in the office. A threat to call the police may be accompanied by
other words or acts which indicate that the speaker will resort to imminent force if necessary to
enforce a demand. If confinement is to be accomplished by physical force, the force need not be
sufficient to subdue the ∏ or even to overcome the resistance of an ordinary person.
g. Submission to a verbal direction of another, unaccompanied by force or threats, is not FI.
h. Moral pressure, as opposed to the application or threat of physical force or the assertion of legal
authority, is generally held to be an insufficient predicate for FI. Thus, a suit may not be brought by one
who has remained at a place merely to clear away suspicion or wrongdoing or to avoid making a scene.
i. Unlawful force, threat of force, assertion of legal authority
i. False arrest is a variety of false imprisonment in which the ∆ unlawfully asserts legal authority in
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order to confine the ∏. Police must have probably cause for arrest.
(1) Enright v. Groves – policeman took the ∏ into custody after she had refused to produce her DL.
Court found that the assertion of authority was unlawful, for there was no statute or decision in
the jurisdiction which imposed on the ∏ a duty to produce her license under the circumstances in
question. It made no difference that the officer might have arrested the woman for a violation of
the municipal leash law, or that she was subsequently convicted of that infraction, for the officer
did not purport to act on that basis.
(2) A civilian who unlawfully asserts legal authority will be liable for false arrest.
ii. A private citizen may conduct a citizen’s arrest of a person who has committed a misdemeanor only if
the crime was committed in the individual’s presence and involved a breach of the peace
(1) Johnson v. Barnes & Noble Booksellers – sales clerk who was allegedly touched inappropriately by
a customer called other personnel who then detained the customer for more than an hour. Court
held that the store was liable for false imprisonment b/c the alleged misdemeanor was not
committed in the presence of the personnel who detained the ∏ and there was no imminent threat
of a beach of the peace.
(2) The line is drawn b/w intentionally providing false information to the police (which may give rise to
liability) and merely providing inaccurate information (which does not give rise to liability).
j. Relevance of guilt
i. A guilty party can almost never bring a charge of false arrest
ii. Involuntary and unprivileged confinement
(1) Peterson v. Sorlien – parents whose adult child had allegedly been “brainwashed” by a cult,
forcibly abducted their daughter for the purpose of “deprogramming” her. Although the
confinement was initially non-consensual, it matured to a point where the girl, at least for several
days, consented to confinement by failing to avail herself of numerous opportunities to escape.
Court suggested that the period of consent constituted a waiver of the earlier forced detention
and barred liability for false imprisonment.
(a) An informed and reasoned consent is a defense to an allegation of false imprisonment and
that a nonconsensual detention could be deemed consensual if one’s behavior so indicated
*recoverable damages-comp for loss time, physical discomfort, inconvienience,
physical illness,
Shopkeepers privilage 1. a shoekeeper may temporarily detain

2. for purposes of investigation
3. one reasonably suspected of theft
4. in or near a store
A reasonable mistake does not destroy the privilege, this investigation privilage may be
invoked by non-shopkeepers.
V. TRESPASS TO LAND – actual land property

Overview
A. Protects the possessor’s interest in exclusive possession of land.
Trespass to Land (Quare Clausem Fregit)-PIPIA (physical invasion, possession, intent, act)
A. Elements for a prima facie case
a. Intent
i. State of mind need only be intent to be present at the place in question, not intent to go upon the
land of another, not intent to violate another’s rights
ii. Fact that intrusion would ordinarily be deemed beneficial does not keep it from being a trespass
iii. A reasonable and honest mistake by the ∆ as to ownership or permission to enter is irrelevant to a
prima facie case
(1) EXCEPTION: if the mistake is induced by the ∏, in which case ∏ may be estopped from claiming
trespass.
b. Unconsented physical presence on, under, or above the land of another
i. May only be maintained by one who is a possessor, that is:
(1) One who is in occupancy doing things which manifest to the world a claim of exclusive control
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(2) If no one is present, one who last ceased occupancy w/o intent to abandon
(3) If neither, one who has the right as against all other persons to immediate occupancy
ii. Physical intrusion requirement is satisfied if the ∆, instead of entering, intentionally casts an object
upon the land or causes another to enter (throwing trash) (A pushes B onto C’s property, A is liable for
trespass, but B is not liable, unless B fails to leave w/ reasonable dispatch)
iii. *Don’t have to prove damages to prevail in a prima facia case
VI. TRESPASS TO CHATTELS (de bonis asportatis) & CONVERSION – personal propepety
Overview-AID Possession (Act, intent, damages, possession)
A. Protects the possessor’s interest in freedom for minor intentional interference w/ personal property. In
general, conversion will lie in cases of major interference with the ∏’s rights; trespass to chattels applies to a
relatively minor interference.
B. Distinction b/w conversion and trespass to chattels is important b/c of the way in which damages are
calculated.
a. Conversion – uses an unusual measure of damages
i. Market value is the price converters pay for goods (replevin plus incidental expenses is also allowed)
b. Trespass – measure of damages in trespass is not the whole value of the property interfered with, but
rather the actual diminution in its value caused by the interference
i. Actual damages are required for trespass to chattels (nominal damages will not be awarded)
Trespass and Conversion
The intentional exercise of dominion and control over another’s personal property may give rise to an
action for conversion or for trespass to chattels. - Compensatory
Conversion: an intentional exercise of dominion or control over a chattel, which so seriously interferes
with the right of another to control, it that the actor may justly be required to pay the full value of the
chattel.
Trespass to Chattels (TEMPORARY/ MINOR)-Dispossesion-don’t have to show damages
Intermeddary-have to show damages
Important to know a suit for trespass may be mainteied not only by possessor by one who is entitled to
possestion @ a future time.
A. Elements for a prima facie case
a. Intent (purpose or knowledge) to affect the chattel
b. Minor interference w/ the ∏ possessory interest by:
i. Dispossession §221
ii. Use
iii. Intermeddling (meaning physical contact)
iv. In the absence of dispossession (from which damage may be inferred), proof of damage in the form
of:
(1) Substantial loss of use
(2) Impairment of condition, quality, or value
B. Notes
a. Dispossession
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§ 221 Dispossession
A dispossession may be committed by intentionally

(1) taking a chattel from the possession of another w/o the other’s consent, or
(2) obtaining possession of a chattel from another by fraud or duress, or
(3) barring the possessor’s access to a chattel, or
(4) destroying a chattel while it is in another’s possession, or
(5) taking the chattel into the custody of the law
------
Put simply:
A. Take over
- w/o consent
- by fraud or duress
- by law
B. Block access or destroy the chattel
i. In the absence of dispossession, a cause of action will not lie for mere momentary or theoretical
deprivation of use. That is to say, the interference must be substantial.
(1) CompuServe Inc. v. Cyber Promotions - ∆s sent unsolicited e-mail advertisement to thousands of
Internet users, many of whom were customers of the ∏’s online computer service,
notwithstanding repeated demands by the ∏ to cease those activities. ∆’s conduct constituted
trespass to chattels b/c even though it did not physically damage the ∏’s computer equipment, it
diminished the equipment’s value by demanding disk space and draining its processing power. ∆’s
conduct also actionable b/c it harmed the ∏’s legally protected interest in its relationships w/ its
customers, for many had objected to receiving unsolicited email.
b. Liability under §218
One who commits a trespass to a chattel is subject to liability to the possessor of the
chattel if, but only if:
(1) he dispossesses the other of the chattel, or

(2) the chattel is impaired as to its condition, quality, or value, or
(3) the possessor is deprived of the use of the chattel for a substantial time, or
(4) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the
possessor has a legally protected interest
Conversion (PERMANENT/ MAJOR)
A. Conversion is a more serious version of the type of interference which gives rise to trespass to chattels. The
difference b/w the two torts is a matter of degree.
B. Recovery for damages
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Factors in determining whether ∆ should pay the full value: 222A(2)
In determining the seriousness of the interference and the justice of requiring the actor to pay the full
value, the following factors are important:
a. extent and duration of the actor’s exercise of dominion and control
b. actor’s intent to asset a right in fact inconsistent w/ the other’s rights of control
c. actor’s good faith
d. extent and duration of the resulting interference w/ the other’s right of control
e. harm done to the chattel
f. inconvenience and expense cause to the other
No one factor is always predominant in determining the seriousness of the interference… nor is the
proffered list intended to be exclusive.
∆ ∏
Intent (good faith will be considered) Person: inconvenience and expense
Conduct: extent and duration of ∆’s dominion Chattel: damage (extent and
and control duration)
C. Notes
a. Zaslow v. Kroenert – court rejected the ∏’s argument that the ∆s’ removal and placing of the ∏ ‘s
furniture constituted a conversion. Court relied on the fact that the ∆s’ asserted no claim of ownership,
had warned the ∏ in advance of their proposed course of action, and had furnished notice of the new
location of how the goods might be claimed.
b. Bad faith on the part of the ∆ makes it considerably more likely that conduct will be found to constitute
conversion rather than trespass to chattels. Mere retention of goods may not constitute conversion.
There must be a demand for their return which is refused.
i. Russell-Vaughn Ford, Inc. v. Rouse - ∆’s salesman intentionally refused to return the ∏’s car keys
despite repeated demands to do so. The prank, which apparently happened on numerous occasions,
ceased only when the police arrived. Although the interference w/ ∏’s dominion and control was
relatively brief, nothing was damaged, and the ∏ had incurred no expenses, the court held that the
facts justified a finding of conversion. It was irrelevant that the ∏ could have called his wife to bring
another set of keys and that retention of the keys constituted a conversion of the entire car. ∆s’ bad
faith figures into the court’s balance of its decision.
(1) “If replacement is quick and easy, only the tire is converted; but if it is slow and difficult, with the
car in the midst of a distant desert, there is conversion of the car.”
c. Thieves, Defrauders, and Bona Fide Purchasers
i. A thief is liable for conversion, and the same may be true of a finder of goods who intends to exercise
dominion over them
ii. Purchasers of goods:
(1) BFP is one who purchases in good faith w/o notice –receives not title if the BFP buys from a thief,
even if the BFP pays the full value, b/c the thief has “void” title and there is nothing to pass along.
Hence, the BFP may be held liable for conversion by the true owner. Bona Fide Purchaser may be
liable for conversion
(2) A BFP who buys goods from another who acquired the goods through fraud may not be sued for
conversion by the original owner b/c the good faith purchase, as a matter of law, cuts off the
original owner’s equitable right to rescind.
(3) One who purchases from a defrauder w/ notice of the prior fraud is not a BFP and obtains no
better rights than the defrauder had. Such a purchaser may be held liable for conversion.
d. Bailees
i. No liability:
(1) Receiving w/o notice that a chattel is lost or stolen
(a) A coat checker who receives a coat w/o knowing it doesn’t belong to the person checking it
(2) Re-delivering w/o notice to the bailor who is not the rightful owner
(3) Re-delivering to the true owner and not the bailor
ii. Liability if:
(1) Receiving w/ notice that bailor has no right to the chattel
CLZ Tort 2010 12
(2) Re-delivering to bailor w/ notice of the true owner’s claim
e. Damages and Replevin
i. The usual result of a conversion is a forced judicial sale
ii. The converter must pay FMV of the chattel
iii. Sentimental value is not compensated
iv. If the owner wishes to get the chattel back, they may sue in replevin
(1) Replevin: allows the ∏ to recover possession of the chattel and to recover incidental damages
f. Demand for Return
i. If the converter’s possession is wrongful, NO demand for the return is required
ii. If the converter’s initially obtained the goods legitimately, a demand MUST be made before an action
will lie
g. What may be converted?
i. Any kind of tangible property
ii. The taking of intangible property only if the property is of the type that is customarily merged in or
identified w/ some tangible document, even though the document itself is not converted
(1) Kremen v. Cohen – a third person fraudulently induced a domain name registrar to cancel the ∏’s
registration of the name sex.com and transfer the name to him. Court concluded that the registrar
was liable for conversion b/c it gave away the ∏’s intellectual property. The DNS database served
as the document needed to satisfy the connection to a document or tangible object.
CLZ Tort 2010 13

CHAPTER 3. DEFENSES AND PRIVILEGES

Defenses & Privileges:
a. Consent
b. Defense of self and others
c. Defense of property
d. Recapture of Chattels
e. Public Necessity
f. Private Necessity
g. Unlawful Conduct
§1 CONSENT
Consent: total bar to liability (issue relevant to the ∏’s prima facie case; burden of proving lack of
consent is upon the ∏)
3 Types:
a. Actual consent
b. Apparent consent
c. Implied consent
To be effective, consent must be

a. (Capacity) By one who has the capacity to consent
b. (Scope) To the particular conduct, or to substantially the same conduct
Simply put: Capacity + Scope
Consent intentionally procured by fraud is invalid.

Modern view: any mistake sufficiently material to play a role in the ∏’s decision-making process
will invalidate consent.
Overview
A. Total bar to liability (actual, apparent, and implied consent only)
a. The ∏’s consent to an otherwise tortious act negates the wrongful element of the ∆’s conduct and
prevents the existence of a tort. This idea is captured n the well known Latin maxim volenti non fit injuria:
to one who is willing, no wrong is done
i. In the context of intentional torts, it is said that “all intended wrongs have in common the element
that they are inflicted without the consent of the victim
B. Burden of proving lack of consent is upon the ∏ for each of the basic intentional torts, except trespass to
land
a. Consent is normally treated not as a defense or privilege for the ∆ to plead and prove, but as an issue
relevant to the prima facie case.
C. At Least 3 Types of Consent
a. Actual consent (in fact)
i. Means that ∏ actually is willing for the conduct (but not necessarily the consequences of the conduct)
to occur
ii. Can be shown by words, affirmative action, or by silence or inaction under the circumstances
indicating willingness
iii. Valid bar to liability even if it is not communicated to the ∆ -- though proving may be difficult
iv. Capacity of consent
(1) In all cases involving actual or apparent consent, the individual must have the capacity to
appreciate the nature, extent, and probable consequences of the decision
(a) Davies v. Butler – college student pledging a fraternity died due to lethal consumption of
alcohol. Although he consented to the act, court found the ∆s liable b/c his intoxication can
bear consent
(2) Lack of capacity to consent may also arise from infancy, agednesss, or medical disability –
CLZ Tort 2010 14
remember legislature protect certain group so even if they consent you are still liable
v. Scope of consent
(1) For consent to be effective, it must be given to the conduct that actually occurs
(a) Ex. ∏ consents to have a fist fight, but ∏ gets hit by brass knuckles
b. Apparent consent
i. The person’s words, actions, or inactions may be reasonably understood to indicate consent
ii. “Objective manifestation rule” – whether a reasonable person would have understood the ∏’s conduct
to indicate a willingness
(1) O’Brien v. Cunard – woman who held up her arm to be vaccinated was held to have consented to
what otherwise would have been a battery b/c there was nothing in her conduct to indicate a
contrary intent
iii. May arise from a failure to object to a well-established, customary practice
c. Implied consent
i. In the absence of actual or apparent consent, special circumstances such as a medical emergency
may make it desirable for a person to engage in conduct that would otherwise be tortious.
ii. Consent is implied b/c the interests to be furthered by the invasion are more important than those
which will be sacrificed.
(1) Miller v. HCA – a hospital could provide emergency resuscitative treatment to a premature
newborn child w/o parental consent. Court found that the parents’ prior refusal to provide consent
for resuscitation was irrelevant b/c the child could not be fully evaluated for medical treatment
until birth, and therefore, the parents’ earlier decision was not fully informed. Further, the
emergent circumstances at the child’s birth required an immediate decision, and there was no
time to consult the parents.
d. Consent given because of a mistake
i. If the ∆ induces the ∏’s mistake OR is aware of it but fails to correct it, the consent is invalid
(1) If mistake is unilateral, the loss should fall on the party who made the mistake
(2) If mistake is mutual, there is no good reason to hold that the ∆ was not entitled to rely on the ∏’s
manifestation
ii. Beyond the threshold requirement of knowledge by the ∆, it may be necessary for the mistake to be
of a particular type:
(a) Fraud in factum – fraud that arises from a disparity b/w the instrument intended to be
executed and the instrument actually executed (e.g. leading someone to sign the wrong
contract)
(b) Fraud in the inducement – the use of deceit or trick to cause someone to act to his/her
disadvantage, such as signing an agreement or deeding away real property. The heart of this
type of fraud is misleading the other party as to the facts upon which he/she will base his/her
decision to act. (e.g., “you don’t have to read the rest of the contract—it is just routine legal
language”)
(c) Recent scholarship has rejected the traditional factum/inducement dichotomy and holds that if
the mistake materially affects the ∏’s decision-making process, the consent is invalid- but
again, ONLY IF THE MISTAKE IS KNOWN TO THE ∆.
iii. DeMay v. Roberts – a physician brought a young man w/o medical qualifications to the ∏’s home to
assist him while the ∏ gave birth. B/c the assistant’s lack of training was not disclosed, the court held
that the woman’s consent to his presence and touching of her was invalid to bar a tort of action.
e. Consent and Duress—consent given under duress is NOT valid
f. Consent to a criminal act
i. Consent to engage in a criminal act is valid, and that it cannot be re-fought in the courts – in pari
delicto
(1) Ex. Decedent fought in an illegal prize fight and his family can’t bring a wrongful death action.
ii. Consent to a criminal act will only bar action if the parties stand in pari delicto (equally at fault)
iii. EXCEPTION: if a statute is intended to protect the class of persons the ∏ is a member of, from the
type of harm that occurred, ∏’s consent is invalid.
(1) Ex. Youthful participant in an illegal prize fight could sue the promoter.
(2) Ex. Statute forbidding the sale of intoxicating liquor to a person who is already intoxicated and
forbid sexual intercourse with a child under 16, regardless of consent
§2 PRIVILEGES & DEFENSES: IN GENERAL
Overview
CLZ Tort 2010 15
A. General category of defenses & privileges include: self-defense, defense of others, defense of property,
recapture of chattels, and public and private necessity.
a. Must be plead by the ∆ or else they are not part of the case.
B. When considering defenses and privileges consider: WHO may assert the privilege; what BELIEF is required;
what is the EFFECT of a mistake of fact; HOW much force can be used; and, are there SPECIAL RULES?
Who
Belief Required
Effect
How much force can be used
Any special Rule
CLZ Tort 2010 16

§3 SELF DEFENSE
Self Defense
Self Defense
WHO? Anyone other than an aggressor
WHEN? Who anticipates immediate physical harm
HOW? May use reasonable force in self-defense

a. A reasonable mistake as to the necessity or degree of force required DOES NOT destroy the
privilege.
b. Use of deadly force is justified only by a threat of deadly force, and retreat (depends on the Jxd)
A. Notes
a. Reasonable force
i. If the actor is reasonably mistaken as to the necessity for using force or the degree of force required,
the privilege is still valid.
ii. In determining what force is reasonable, the age, size, and relative strength of the parties should be
taken into consideration.
iii. Deadly force (force likely to cause death or serious bodily injury) may be used only to defend against
deadly force. But even an unarmed person may present a deadly force.
(1) Silas v. Bowen – court held that b/c of the disparity in the size of the parties, the belligerence of
the ∏, and the ∏’s physical abuse of the ∆, it was reasonable for the ∆ to fear serious bodily injury
at the hands of the latter. Consequently, the shot which the ∆ fired, striking the ∏ in the foot, did
not give rise to liability.
b. Once there is no longer a threat of continued harm, the privilege terminates
c. Under attack, one has the duty to flee, if retreat can be made w/ complete safety, before using deadly
force
i. EXCEPTION: The Castle Doctrine-- duty to retreat DOES NOT apply to the home, workplace, or car
UNLESS that place was also the home or workplace of the assailant.
d. Insults will not give rise to the privilege of self defense
i. EXCEPTION: if the person intends provocative words or action to induce an attack, they amount to a
challenge to fight, and as such constitute consent which will bar an action for intentional tort
(1) Ex. Bar brawl. ∏ shouts at ∆, “Hit me. Come on, bring it – hit me.” ∆ could not claim self defense,
but could use consent.
§4 DEFENSE OF OTHERS
Defense of Others
Defense of Others
WHO? Anyone
WHEN? Who believes force is necessary to protect another
HOW? May use reasonable force to do so

---split of authority as to whether a reasonable mistake destroys the privilege
A. Notes
a. Mistaken intervention
i. Some (generally older) decisions discourage defense of others by holding that an intervener steps
into the shoes of the one being assisted; if that person has no right of self defense, the intervener’s
conduct is not privileged, regardless of what the intervener believes
CLZ Tort 2010 17

ii. Other jurisdictions encourage reasonable intervention efforts by holding that a reasonable mistake as
to another’s right of self defense does not destroy the privilege to defend the other
b. Force
i. Must be reasonable under the circumstances.
ii. Question of reasonableness is one for the jury, but if reasonable minds cannot differ, it may be
decided by the court
(1) Drabek v. Sabley - ∆ had apprehended a young boy who had been throwing snowballs at passing
cars and who might have been expected to do so. It was unreasonable to drive the child several
miles to the police station after taking him into custody. The court was influenced by the fact that
less severe alternatives were available, namely identifying the child’s parents and turning him
over to them, or merely reporting the child to the police and allowing them to take appropriate
action
(a) ∆ did not act in self defense b/c he was no longer in danger. He restrained the ∏’s liberty and
held his arms, which are not reasonable actions given the circumstances (the imminent threat
of harm had subsided b/c the boy ran away), and he is thus liable for false imprisonment and
battery.
c. Range of response
i. In a given situation, more than one response may be reasonable, in which case the defender will not
be faulted for not having selected the very best course of action
§5 DEFENSE OF PROPERTY
Defense of Property
Defense of Property
WHO? A possessor
WHEN? Necessity
HOW? May use reasonable, non-deadly force to defend property

a. A reasonable mistake as to danger and degree of force does not destroy the privilege.
b. But a mistake as to intruder’s privilege destroys the privilege
B. Notes
a. Deadly force may NEVER be used to repel a threat of property UNLESS there is a threat to the safety of
others
b. A reasonable mistake as to the necessity for using force does not destroy the privilege. Thus, if a
homeowner shoots a burglar, reasonably believing that he is armed and poses a threat to the inhabitants
of the house, there is no liability.
c. A mistake—even a reasonable mistake—as to whether the intruder is privileged to enter destroys the
privilege to defend property (unless the mistake has been induced by the intruder).
i. Ex. If a homeowner shoots one who under the doctrine of private necessity is entitled to enter to seek
shelter from a storm, there is liability.
d. A person cannot do indirectly (for example, by mechanical device) that which the person is not permitted
to do directly
i. Katko v. Briney - ∆s had rigged a spring-gun to protect an unoccupied farmhouse from break-ins. They
were held liable to a trespasser who was injured by the gun, for deadly force may not be used if there
is no threat to personal safety. Further held that giving notice of the intended use of a mechanical
device does not enlarge that privilege.
e. A possessor’s privilege to eject a person from property is restricted in the sense that the possessor may
not expose the person to unreasonable physical danger.
f. Defense against dogs when trespassing does not justify killing the dog, however, if someone’s dog is
trespassing on your property killing your chickens, you can shoot the dog
CLZ Tort 2010 18

§6 RECAPTURE OF CHATTELS
Recapture of Chattels – NOT TO BE CONFUSED w/ SHOPKEEPER’S PRIVILEGE!!!!
Recapture of Chattels
WHO? A possessor
WHEN? Wrongfully dispossessed by fraud or force

a. If there is prompt discovery and fresh pursuit
HOW? May use reasonable, non-deadly force to defend property
a. ANY mistake destroys the privilege
A. Overview
a. A person suffering from this loss may use reasonable, non-deadly force to retake the goods, if the
dispossession is discovered promptly and there is “fresh pursuit” of the wrongdoer. Any reasonable delay
in either discovery or pursuit destroys the privilege.
b. A mistake, however reasonable, made by the owner is NOT privileged and can be held liable for injuries
i. Ex. If A chases B for return of a chattel and A tackles C, A is liable to C
B. Notes
a. No force is reasonable until a demand for return of the chattel has been made, unless such a demand
would be futile or dangerous
(1) b/c dispossession has already taken place, the effort to retrieve the goods turns the owner or
possessor into the aggressor. To discourage persons from taking the law into their own hands over
mere property interest, on exercising the privilege is liable for any mistake as to the facts which
create the privilege – unless that mistake is knowingly induced by the ∏
(a) Hodgeden v. Hubbard - ∏ had purchased a stove on credit by making false representations as
to his credit worthiness. B/c the ∆s promptly discovered the fraud, quickly pursued the ∏, and
did not initiate deadly force; their recapture of the chattel was privileged.
b. Deadly force may never be used as a part of an effort to recapture chattels, except to defend life or limb
from the use of deadly force by the wrongdoer, in which case the privilege is actually one of self defense
or defense of others
c. A default on a typical (non-fraudulent) conditional sale, such as an installment purchase of household
goods, does not justify assertion of the recapture privilege
i. The store is NOT allowed to go into that person’s home to recapture the chattel
§7 PRIVILEGE TO DETAIN FOR INVESTIGATION
Shopkeeper’s Privilege
Shopkeeper’s Privilege
a. A shopkeeper may temporarily detain

b. For purposes of investigation
c. One reasonably suspected of theft
d. In or near the store
i. A reasonable mistake does not destroy the privilege
ii. This “investigation privilege” may be invoked by non-shopkeepers.
A. Notes
a. Distinguishable from the privilege to recapture chattels by the fact that a reasonable mistake does not
destroy the privilege
b. Reasonable force may be used to detain the individual, although DEADLY FORCE IS NEVER PERMITTED,
except if necessary for self defense or defense of others (in which case, this privilege does not apply)
CLZ Tort 2010 19
c. Time: period of time available for investigation is usually short –only for the time necessary for
reasonable investigation.
i. What is reasonable time depends on the circumstances. If the detention is longer than necessary,
then the actor is liable for the excessive detention.
d. Permits only investigation and is not available if the store attempts to coerce a confession, demands
payment, places the individual under arrest, or acts in an unreasonable manner, such as by publicly
disgracing a customer in the presence of others
i. Dillard v. Silva – Court held that the failure of store personnel to accompany a suspect to his car to
see whether he had a receipt, as he maintained, and instead using force to handcuff the suspect until
police arrived, was unreasonable. Store was liable for false imprisonment.
e. Reasonable force may be used to detain the suspected person; but as in the case of recapture of
chattels, the use of forced intended or likely to cause serious bodily harm is never privileged, only where
the resistance of the other makes it necessary for the actor to use such force in self defense
f. Privilege may be invoked non-shopkeepers (i.e., law prof detaining a student for stealing the exam)
§8 PUBLIC AND PRIVATE NECESSITY
Overview
A. A privilege of necessity exists if it is apparently necessary to invade the interests of the ∏ (often an innocent
3rd party) in order to prevent greater harm
B. A privilege is NEVER greater than the necessity
a. Ex. A landowner cannot channel floodwaters onto neighboring property just to save his own property
b. Ex. A firefighter who needs a ride to an accident scene cannot forcibly take another’s car, if that person
reasonably offers to drive the firefighter to the site immediately.
Public Necessity
Public Necessity
WHO? Anyone
WHEN?
a. Actually or apparently necessary
b. To avoid an imminent risk of greater harm to the community or many persons
HOW? To use reasonable force

a. A reasonable mistake does not destroy the privilege
b. Some statutes and cases abrogate the general rule and require compensation
A. If the class to be protected is a substantial number of people

B. May be exercised by private citizens or public officials
C. A privilege of public or private necessity is not dependent upon whether the action achieves the desired goal
a. Surocco v. Geary – the blowing up of the ∏’s house did not stop the spread of conflagration, but the
privilege of public necessity precluded a suit in tort by the owner of the destroyed dwelling. All that is
required for the privilege to apply is that the action reasonably appear to be necessary.
D. Tort v. Taking
a. Losses should be spread broadly rather than allowed to fall with crushing weight on one individual
b. Wagner v. MMI – a city was required to reimburse a homeowner whose house had been destroyed by a
police SWAT team in the course of apprehending a suspect. Fairness and justice, the court found,
required that an innocent homeowner not be forced to bear the entire cost of a benefit conferred on the
entire community.
CLZ Tort 2010 20

Private Necessity
Private Necessity: same as public necessity EXCEPT:
a. The action benefits only one or a few persons
b. The actor is liable for actual losses
If the ∏ resists the assertion of the privilege, the privilege becomes complete, and no further
compensation is required by the ∆ for harm reasonably inflicted thereafter.
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.
WHO? Anyone
WHEN?
a. Actually or apparently necessary
b. To avoid an imminent risk of greater harm to the community or many persons
HOW? To use reasonable force

a. A reasonable mistake does not destroy the privilege
b. Some statutes and cases abrogate the general rule and require compensation
A. Notes
a. If the ∆ acts merely to protect personal interests or those of a few other people
b. There is still liability placed on the ∆, except if the act is for the benefit of the ∏, in which case there is no
liability
i. Ex. ∆ takes the ∏’s scarf for the purpose of bandaging the wounds of an unrelated accident victim,
the ∆ will be responsible for the value of the scarf; if in contrast, the ∆ uses the ∏’s scarf to bandage
the ∏’s own wounds, there will ordinarily be no liability
ii. EXCEPTION: a privilege of private necessity does not exist if the actor knows that the person whose
interests would be protected is unwilling for the conduct to occur
(1) Ex. While one normally may ruse onto the land of another to rescue chattels from a burning
building, there is no privilege to do so if the owner of the chattels expressly forbids such action
c. If the ∏ resists the assertion of the privilege, the privilege becomes absolute, and no further
compensation is required by the ∆ for harm reasonably inflicted thereafter (∏ waives the right to
damages if the ∆ uses force and causes damages b/c of his necessity and the ∏ refusal to let him on the
property)
d. One whose interests are being invaded by another acting w/ privilege cannot resist the assertion of that
privilege
i. Ploof v. Putnam – a landowner had cast adrift a boat that had attempted to tie up at his dock during a
storm. The landowner was held liable for the consequent injuries and damages suffered by the
occupants of the vessel.
e. One may act w/ reasonable force to overcome resistance to a privilege
i. In the absence of such resistance, a landowner may recover for the damages actually inflicted by
another’s assertion of private necessity
(1) Vincent v. Lake Erie Transp. – where damage was caused to a dock by a ship that was moored
there during bad weather.
§9 RECAPTURE OF GOODS ON THE LAND OF ANOTHER
Overview
A. Aside from the privilege to recapture chattels, at least 3 other rules govern the right of a possessor to
retrieve goods deposited on the land of another
i. If the goods came upon the land through wrongful conduct of the landowner, the possessor may use
reasonable force to recover the goods, EVEN in the absence of fresh pursuit
(1) Ex. Knowing that Sylvester has taken his cage; Tweety Bird enters onto Sylvester’s property to get
CLZ Tort 2010 21

the cage back. Sylvester may not sue Tweety Bird for trespass.
ii. If the goods came upon the land through force of nature or were wrongfully placed there by a 3rd
party, w/o the landowner’s knowledge, there is a privilege to allow the possessor on the land to
retrieve the goods
(1) The person asserting the privilege WILL be liable for damages
iii. If the goods came upon the land of another w/ the consent or through the fault of the possessor, there
is NO privilege to enter to retrieve the chattel
(1) WILL be considered trespass
§10 RECAPTURE OF LAND

A. Only peaceful means can be used to retake land
B. Otherwise, one must use the law
§11 UNLAWFUL CONDUCT

Prohibited Criminal Conduct—exception to the general rule that a person is not denied the right to
sue in tort merely b/c that person was engaged in illegal conduct when the tort occurred
Ordinarily, a ∏ is not barred from recovery merely b/c he or she was committing a tort or a crime at the
time of the injury
However, under limited circumstances, some courts hold that recovery is barred if the ∏’s injury is:
a. A direct result
b. Of knowing participation
c. In a serious criminal act
d. Involving prohibited (not merely regulated) conduct
A. Notes
a. Unlawful conduct is the exception to the general rule that a person is not denied the right to sue in tort
merely b/c that person was engaged in illegal conduct when the tort occurred. (See, Katko -- where court
held that trespasser could sue landowner for injury sustained by a spring gun during a break-in, and
Enright – a woman who failed to give her DL to a police officer was allowed to sue for false arrest, even
though she was later convicted of being in violation of the leash law a the time the tort occurred)
i. Reserved for cases in which the violation of the law is particularly serious and the relationship b/w the
injuries and the violation is direct
ii. Barker v. Kallash – 15-yr-old boy who was injured while constructing a “pipe bomb” was precluded
from recovering from a 9-yr-old boy who had supplied the gunpowder.
(1) Distinction must be drawn b/w lawful activities regulated by statute (fireworks) and activities
which are entirely prohibited by law (pipe bombs)
Damages
i. Raising the issue at trial
a. Damages not raised at trail are almost never considered on appeal
b. When trial counsels inaction causes that (D) to pay to much , or the (P) to receive too little a
malpractice action may be
brought against the attorney
c. We can calculate by lump sum or by per diem (if allowed per diem better way)
ii. Excessive Damages
a. if the award is against the weight of the evidence a judge may order remittitur
remittitur-giving the (P) an option of accepting a reduced amount or being relegated to a new
trial
addittur- judge may add if award to small
iii. Pain and Suffering
a. some states allow per diem arguments
b. some courts consider awards in similar cases
c. use of video evidence is increasingly common
1. day in the life form
2. video settlement “brochures”
CLZ Tort 2010 22

iv. Hedonic Damages
a. an award for (P)s loss of ability to engage in enjoyable activities
b. some states have approved awards of hedonic damages
Medical monitoring damages Meyer v Fluor
Plaintiff needs to show:
a. (before-explosure) significantly increased risk of contracting a particular disease relative to what would
be the case in the
absences of exposure
b. (after)Medical Monitoring, to a reasonable degree of medical certainty, necessary in order to diagnose
properly the warning
sign of disease.
v. Loss of Consortium
Provides compensation for expenses and lost companionship and affection
a. to a spouse (in all states)
b. to parents (in many states)
c. to children (in a few states)
d. to siblings (in a few states)
e. to grandparent in loco parentis (some states)
f. to unmarried cohabitants (some states)
A. Collateral Sources Rule- first step is to check if applies in your JxD

a. a (D)’s liability is not reduced because the plaintiff has received compensation from a source wholly
independent of the
tortfeasor
b. rule has been extensively modified by statutue in some areas
c. May not apply if (P) obtained voluntary (not free) services from (D)
B. Avoidable Consequences Rule

a. A (P) has a duty to mitigate damages throught reasonable post-accident conduct
b. in determining what is reasonable consider:
1. Risk ----
2. Pain |
3. Expense |-----Cost v. Damages
4. Effort |
5. Probability of success ----
C. Survival and Wrongful Death Statutes-liability ends with the death of either party in a lawsuit
a. Survival Statutes:- allows personal rep. to bring claim against tortfeasor on behalf of the deceased
i. allow a claim to survive the death of either party
ii. if the (P) dies, the claim is prosecuted by the estate.
b. Wrongful Death Statutes
i. permit a designated class of person to recover for losses sustained as a result of a wrongful
death of another
- restricted class of personas-bring a litigation themselves b/c thay are left behind wrongful
death of (D) left
them suffering.
c. Wrongful death: companionship and society
i. most states now allow recovery of lost companionship, society, advice, or guidance
a. expressly or
b. by interpretation of “actual” or “Pecuniary” damages
d. Lost Earnings
i. a history of earnings is useful, but not essential
ii. probability of the (P) being employed (as affected by age, health, etc.) is taken into account
iii. an award of lost past earnings may be enhanced by prejudgement interest
iv. an awred of lost future earnings is reduced to present value
e. Inflation
i. inflation should be taken into account both in projectiong future lost earnings and in discounting
CLZ Tort 2010 23
those losses to present
value, or else left out of both calculation altogether.
D. Taxation of Damages
i. an award of compensatory damages in a personal injury case is not taxed
ii. taxation of the earnings on the investment of a lump sume award can be avoided by a
structured settlement
iii. in wrongful death cases in which damages are measured by the amount the decendents
waould have contributed
to the survivors, courts usually admit evidence of the decendeant’s tax laialbilty on future
earnings.
iv. fed cts hold that juries should be instructed that damages for loss of future earnings are not
subject to taxation.
*some state differ on last point.
Compensatory Damages - not Taxed

Punitive damages- new income so it is taxed
State Farm v Campbell

a. Gore three Guidepost (BMW v Gore)
i. the degree of reprehensibility of D’s conduct
ii. the disparity between the harm suffered by the (P) and punitive damages awarded
iii. the difference between the punitive damages awarded by the jury and the civil penaltites
authorized or imposed
in comparable cases
Reprehensibility
i. the harm cause was physical as opposed to economic
ii. the tortuous conduct evinced an indifference to or a reckless disregard of the health or safety of
others.
iii. the target of the conduct had financial vulnerability
iv. the conduct involved repeated actions or was an isolated incident
v. the harm was the result of intentional malice, trickery, or deceit or mere accidents
the existence of one factor may not sufficient and the absences of all of them renders any award suspect.
Reprehensibilty – Factors to considered.
Defendant Plaintiff
i. intentional malice or i. the harm was
deceit, or just an physical or
accident economical
ii. indifference to or ii. financial
reckless disregard of vulnerability
the heatlht or safety of
others.
iii. repeated actions or
an isolated case
CHAPTER 5. NEGLIGENCE
§1 NEGLIGENCE DEFINED
CLZ Tort 2010 24

Prosser’s 4 Elements of Negligence
a. Duty
b. Breach
c. Causation
d. Damage (actual loss must have occurred)
A. Negligence – conduct which poses an unreasonable risk of harm to others

B. Elements
a. Duty
b. Breach
c. Causation
d. Damages
i. Nominal damages CANNOT be recovered to vindicate a technical right of the ∏ (nominal- awarding $
for the sake of the moral of the story); some loss has to occur (negligence requires you actually suffer
a detriment)
§2 CONCEPT OF DUTY
Palsgraf Duty Rule – the risk reasonably to be perceived defines the duty to be obeyed
A. Negligence – conduct which poses an unreasonable risk of harm to others

a. Duty deals with the issues of unreasonable
B. Rule: Risk reasonably to be perceived defines the duty to be obeyed
a. There is nothing in the situation to suggest to the most cautious mind that there is harm
C. Whether the ∆’s conduct has breached the duty that was owed to the foreseeable ∏
a. Palsgraf v. Long Island RR – RR guards had attempted to boost a passenger safely onto a slowly
moving train that he was running to catch. In the process, a package was dislodged from the man’s arms.
It fell to the tracks and exploded. Question was whether a woman who was standing on the other end of
the platform could recover from the RR for the injuries she sustained when the shock of the explosion
caused a scale to fall. Found that there was no liability b/c there was nothing in the situation to suggest
to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the
station.
i. Palsgraf’ general rule on duty: The risk reasonably to be perceived defines the duty to be obeyed.
(risks imports relation! It’s the foreseeability of risk to a person of the ∏’s class.
(1) B/c there was no reason for the guards to foresee the possibility of injury to ∏ or to others
similarly situated, there was no duty to her, and therefore no liability.
(2) The case might have turned out differently if the guards could have readily seen that the package
contained fireworks
b. The case is important b/c it articulates the concept of duty in terms that are widely embraced: The duty
runs to only those who are in the foreseeable ambit of danger
i. Although this is important, the central concern is not w/ duty, but w/ whether the ∆’s conduct has
breached the duty that was owed to the foreseeable ∏ (i.e., whether the ∆ has acted unreasonably)
c. Even if there is a duty to the ∏, other questions, which bear on the fairness of imposing liability, must be
considered before liability will attach.
§3 NEGLIGENCE BALANCING TEST
Negligence Balancing Test-FYI it is almost impossible to appeal a suit of neg. b/c neg a question of fact and
appeal cts look at matters of law
CLZ Tort 2010 25

Hand Formula: conduct is negligent if the Burden of prevention is outweighed by the gravity of the
Loss times the Probability of the harm
B<PL
(B)urden of prevention < (P)robability of the harm * (L)oss
A. Rule: a person cannot be expected to guard against harm from events which are so unlikely to occur that the
risk, although cognizable, would commonly be disregarded
B. Palsgraf suggests that the test is not whether damage was more likely than not to occur, but whether the
risk was of sufficient weight and moment that a reasonable person would have avoided it
a. Nussbaum v. Lacopo - ∏ whose property abutted a CC, was injured by a stray golf ball. Court held that
although the ∆ golfer had played the course before and was aware of the location of the ∏’s property,
and although golf balls had landed there on previous occasions, the possibility of harm to the ∏ was too
small to give rise to liability.
i. Lack of due care is not demonstrated when the undisputed physical evidence proves that it could not
have reasonably anticipated that the harm complained of would result from the natural and probable
consequences of the act claimed to be negligent
b. Gulf Refining Co v. Williams – a spark caused by a defective cap on a gasoline drum started a fire, which
injured the ∏. Court found for the ∏ under the exception test: as the gravity of the potential harm
increases, the apparent likelihood of its occurrence may be correspondingly less. Since serious harm was
threatened by the explosion of the gasoline in close proximity to a person, the probability of its
happening did not have to be great in order for the ∆’s failure to take corrective action to give rise to
liability.
i. Proof is sufficient to show that a person of ordinary prudence should have known of the condition
aforesaid and should reasonably have anticipated, as a likelihood of weight and moment, that a
sudden fire or explosion would be caused by the stated condition of unrepair
ii. Indicates that Nussbaum opinion goes too far when it states that, for negligence to lie, harm must be
“not merely possible, but probable”
iii. However, gravity and probability of harm furnish only part of the negligence equation
c. US v. Carroll Towing Co. – a barge belonging to the ∏ had broken away from its moorings b/c of the
negligence of the ∆’s employees in moving the ropes. Court ruled for ∏ on the basis that the probability
and gravity of the threatened danger outweighed the burden that would be imposed by requiring the
presence of a bargee during normal working hours.
i. Learned hand balancing test (B<PL)
Utility vs. Risk Formula
A. Utility versus Risk – negligence also takes into account the utility of the ∆’s conduct and the availability of
alternatives
a. Chicago, B&W RR v. Krayenbuhl – a 4-yr-old child was injured while playing on an unlocked RR turntable.
Court focused on the utility of the ∆’s conduct and on the availability of alternatives, held that while RR
turntables serve an important public interest, the use of a lock would have interfered slightly w/ the
pursuit of that goal, and therefore the ∆’s conduct was negligent.
i. As long as there’s an alternative, the ∆ is liable for not choosing the alternative
b. Utility of a given course of conduct is a function of:
i. Social value of the interest the ∆ seeks to advance (e.g., actions to prevent or cure a disease are
important; recreational activities are perhaps less important)
ii. Likelihood that the conduct will advance the desired objective (e.g., is the vaccine likely to be
effective? Will it be effective in all cases or in only one in ten?)
iii. Availability of alternatives (e.g., Are other forms of treatment available at a reasonable price?)
c. Risk – whether there is a variable alternative is a question of both technical feasibility and whether the
alternative could entail high economic and noneconomic costs
i. Social value of the interest imperiled (e.g., Is there a threat to the life and health of persons or only to
property interests?)
ii. Extent of the harm that is threatened (e.g., Will there be partial damage or complete destruction;
temporary impairment or permanent injury?)
iii. Number of person who are likely to be affected (e.g., Will the vaccine be fatal to one in a thousand or
one in a million?)
B<PL vs. Utility v. Risk
CLZ Tort 2010 26
A. Both formulas work best in instances where someone has actually made a decision that would affect safety.
The court can then assess whether the decision was reasonable and, if not, whether the decision maker was
negligent in making that decision.
B. Utility v. Risk formula doesn’t work well in cases of momentary, inadvertent error.
C. Whether a particular course of conduct is negligent may depend upon whether alternatives are available.
§4 REASONABLE PERSON STANDARD
Overview
A. The law has frequently elected to articulate the same inquiry of determining unreasonableness assessed
using B<PL, but simply asking whether the ∆ acted as a reasonable, prudent person would have acted under
the same or similar circumstances.
Establishing Reasonable Person Standard – 4 Ways:
i. The finder of fact

ii. Judicial decision
iii. Statute
iv. Judicial decision in reference to the statute
B. Good intentions are not enough – it is not enough that the ∆ did the best he knew how. The reasonable
person standard is intended to ensure some degree of predictability in the conduct of human affairs.
a. Vaughan v. Menlove – the improper location of a hay rick led to a fire which destroyed the ∏’s cottages.
The opinion of the court makes clear that the reasonable-person test is an objective standard. It was not
sufficient that the ∆ in Vaughan had tried to do his best. The question was whether the ∆ had taken the
precautions that would have been observed by a reasonable person. Consequently, is not a defense to
negligence liability that the ∆ acted “bona fide to the best of his judgment.” Good faith is not enough to
preclude a finding of negligence liability.
Circumstances for the Fact Finder to Consider
A. Are the following factors relevant “circumstances?” Do they change the standard of care?
a. Considerations the Jury may take into account
i.
Emergency – reasonable prudent person would have done under the same or similar circumstances
(1) Exception: unless the actor created the emergency, in which case no allowance is made
(2) Does NOT change the standard of care but is a relevant factor
(a) Young v. Clark – evidence showed that the emergency leading to a rear-end collision was
caused by the actions of an unknown driver several cars ahead. B/c it could not be said as a
matter of law that the ∆ was traveling too close or too fast, the ∆ was entitled to have the jury
instructed on the subject of emergency.
(i) Even if the ∆ is entitled to an emergency instruction, the jury may find that the ∆ acted
unreasonably.
ii.
Physical Disabilities – the standard for negligence is what a reasonable person w/ that physical
disability would have done
(1) In General:
(a) The conduct of an actor w/ physical disability is negligent only if it does not conform to that of
a reasonably careful person w/ the same disability
(2) Illness
(a) Illness constitutes negligence only if the sudden incapacitation or loss of consciousness was
reasonably foreseeable to the actor.
iii.
Intoxication – no allowance is made in the standard of care for voluntary intoxicated persons
(1) Where intoxication is involuntary, such as in the “highly unusual case in which one believes that
CLZ Tort 2010 27
he is drinking tea is pied w/ liquor, and so becomes disabled,” the standard of conduct to which
the actor must conform is that of a reasonable man under a like disability.
iv.
Religious Beliefs – does not change standard of care; merely a factor to be considered
(1) Williams v. Bright – the issue was whether the ∏ had unreasonably failed to mitigate damages due
to her religious beliefs as a Jehovah’s Witness, which allegedly precluded her from having a knee
operation b/c the procedure would require blood transfusion. Court stated that a jury instruction
should not be phrased in terms of what “a reasonable prudent person” would do, nor in terms
what “a reasonable Jehovah’s Witness” would do. The correct instruction should be “whether the
∏ acted as a reasonably prudent person (taking into consideration) the ∏’s testimony that she is a
believer in the Jehovah’s Witness faith. The ∏’s beliefs were held to be a relevant factor, but did
not change the standard of care.
v.
Age – children are to be judged by a special standard of care: against other children of like age,
intelligence, and experience
(1) EXCEPTION: when children perform an adult activity for which adult skills and experiences are
required (hunting, driving)
(a) Gross v. Allen - ∏ was injured when she was struck by a 17-yr-old, first-time skier. Court held
that children are normally to be judged by a special standard, namely whether their conduct
measures up to the level of care that would be exercised under similar circumstances by a
child of like age, intelligence, and experience.
(2) Applies mostly to children 5-14 yrs of age, sometimes 17
vi.
Mental deficiencies -- Generally, no allowance is made in the adult standard of care for any
mental deficiency of a relatively minor nature
a. Severe mental problems (insanity)
i. (R3T) actor’s mental or emotional disability is not considered in determining whether
conduct is negligent, unless the actor is a child
ii. Reluctance on the part of the courts to enter upon the intractable inquiry of defining and
proving levels of mental deficiency or insanity
(1) EXCEPTIONS: Sudden, unexpected, temporary insanity

(a) Bruenig v. American Family Ins. - Woman believed that God was in control of her car and
therefore accelerated it, thinking she could fly over an on-coming truck “like Batman.” She
was wrong, and injuries to the ∏ resulted. Court found that a different rule should apply in
cases of unanticipated, sudden insanity, for “it is unjust to hold a man responsible for his
conduct which he is incapable of avoiding, if the incapability was unknown to him prior to the
accident.”
(b) Inability to control one’s actions, even if the deficiency in ability to control results from a
condition of long standing
(i) E.g., heroin addicts not resisting the temptation to get high
(ii) Actor’s mental deficiency is always relevant to the issue of contributory negligence
vii.
Superior Knowledge, Training, or Skill: Professional Malpractice – A person w/ superior skill,
training, or experience must exercise those abilities
(1) If the actor is a member of a profession, the standard of care will be definied w/ reference to that
group, and the actor will be found negligent for failing to perform w/ the degree of knowledge,
training, and skill possessed by an ordinary member of the profession in good standing
(2) This is to foster predictability in that profession
(3) EXCEPTION: If a professional claims to have less skill than ordinary, a patient consenting to
treatment on that basis may be entitled only to less care than would normally have been
CLZ Tort 2010 28
exercised
viii.
Legal Malpractice
An atty implicitly represents that he or she:

a. Possesses the ordinary degree of learning, skill, and ability
b. Will exercise her best judgment
c. Will be diligent and careful in using professional skill and knowledge
Generally, there is:

a. No liability for a mere error of judgment on which reasonable lawyers may differ
b. No guarantee of success
(1) ∏ must prove that lack of care resulted in damages

(2) ∏ must prove that not for the negligence, ∏ would have won their case
(a) Biomet v. Finnegan Henderson LLP – the ∆ lawyer chose not to appeal an adverse $20M
punitive damages judgment against their client at the time they challenged the related
compensatory damages award. The choice was reasonable at the time it was made b/c there
was no basis to constitutionally challenge the punitive award until the award of compensatory
damages was reduced and reversed. Because the lawyers had acted reasonably in crafting
their appeal strategy as the law then existed, they were not liable for malpractice.
(3) Intentional torts mor likey to get punitive damages, in Negligence more likely then not that will
not be awareded
Constitutional Challenge of Excessive Punitive Damages (Biomet case)
a. Due Process of the 14th Amendment prohibits the imposition of grossly excessive or
arbitrary punishments on a tortfeasor
b. A person is entitled to receive fair notice not onl of the conduct that will subject him
to punishment, but also of the severity of the penalty that a State may impose
(3) Expert testimony is needed, but the expert needs to testify if it was negligent for the ∆ to do what
she did, not just what the expert would have done
(a) For legal malpractice, attorneys from around the state can testify as to what is reasonable
(b) For medical malpractice, medical practitioners from around the country can testify
(4) Lawyers are bound by the locality-rule that they need to familiarize themselves w/ local practice
as a duty to their profession
(a) Russo v. Griffen – atty charged w/ malpractice, based on a failure to advise his client of the
desirability of obtaining a covenant not to compete from the party who was selling the client
an interest in a paving business. Court held that malpractice claim was not precluded by the
fact that only out-of-town experts had testified that such advice was required. The relevant
frame of reference was state-wide in view of the fact that attys are licensed by the state and
are subject to state rules of practice, and b/c substantive law often differs from one state to
the next.
ix.
Medical Malpractice
Failure to obtain informed consent is professional negligence even if treatment is skillfully rendered
A physician must disclose all material risks and alternatives, except if:
a. The information is, or should be, known to the patient
b. Disclosure would be detrimental to the patient’s best interests
c. There is an emergency
(1) Boyce v. Brown - ∏ alleged that it was negligent for the ∆ physician to fail to take an x-ray in
CLZ Tort 2010 29
treating her ankle, into which a screw had been inserted. ∏’s expert testified that he personally
would have taken an x-ray, but did not say that it was negligent for the ∆ not to do so. A judgment
in the ∆’s favor was affirmed. If negligence is so grossly apparent that a layperson would have no
difficulty recognizing it, expert testimony is not required.
x.
Medical Malpractice: Informed Consent
Failure to obtain informed consent is professional negligence even if treatment is skillfully rendered
A physician must disclose all material risks and alternatives, except if:
a. The information is, or should be, known to the patient
b. Disclosure would be detrimental to the patient’s best interests
c. There is an emergency
(1) No action will lie if the fact finder believes the patient would have consented to the procedure
anyway (would a reasonable person have consented to the treatment even after finding out all the
risks?)
(a) Test applied to determine negligence based on lack of informed consent:
(i) Subjective – whether there is credible evidence to support a finding that this particular
patient would not have consented
1. Scott v. Bradford – patient had experienced problems subsequent to a hysterectomy.
Previously, her surgeon had neglected to disclose the risks of the operation and the
available alternatives. The court adopted a subjective test which asks simply whether
there is credible evidence to support a finding that this particular patient would not
have consented.
(ii) Objective – whether a reasonable person would have consented to the treatment if the
risks and alternatives had been disclosed
§5. JUDGE MADE STANDARDS
Judge-Made Standards of Care

Judge-made Standards: judicial definition of reasonable conduct
A. Helling v. Carey - ∆, an ophthalmologist, in treating the ∏, had followed the customary practice of not testing
persons under the age of 40 for glaucoma, although the test is simple. Mindful of the “grave and
devastating” nature of the potential harm and of the slight burden that administering the test would impose,
the court held that it was negligent as a matter of law not to give the test.
CLZ Tort 2010 30

§6. NEGLIGENCE BASED ON VIOLATION OF STATUTE
Negligence Based on Violation of Statute

Negligence Based on Violation of Statute: Should ask…
a. Did the statute set the standard of care?
b. Was there an excuse for the violation?
c. What is the procedural effect of an unexcused violation?
d. Was the violation causally related to the ∏’s damages?
a. Is recovery barred by available defenses?
A. Statutes Intended by the Legislature to Set the Standard of Care

a. The statute defines the governing standard of conduct for a negligence action
i. The only relevant questions are the law’s constitutionality and its applicability to the facts of the case
at hand.
B. Statutes Adopted by Courts to Set the Standard of Care
a. Is a statute is not expressly or implicitly intended by the legislature to set the standard of care, a court
may nevertheless adopt its requirements as defining the standard of conduct of a reasonable person.
Always consider:
a. Class of persons intended to be protected
b. Type of harm intended to be prevented
(Consider it a proximate cause issue)
b. Gipson v. Kasey – a party-goer who violated a statute prohibiting distribution of prescription drugs to
persons lacking a valid prescription could be liable for the death of another party guest that resulted from
the decedent’s ingestion of the drugs along w/ excessive alcohol. The statute was intended to protect
against the harm of death by illegal, unprescribed drugs taken by a person (class of person intended to
protect).
c. Even if both these questions are satisfied, it’s still up to the judge’s discretion if statute sets the standard
of care.
i. Stachniewicz v. Mar-Cam Corp. - ∏ was injured during a barroom brawl. ∏ argued that the bar’s
negligence could be established based on its violations of both a statute and a regulation. Statute
prohibited the serving of liquor to a person who was already “visibly intoxicated,” and the regulation
forbade a liquor licensee from tolerating “loud, noisy, disorderly or boisterous conduct.” The statutory
provision was intended to prevent physical injuries to patrons such as the ∏, the court refused to hold
that a violation of that law could be used to prove negligence. Factual causation is established by
applying a “but for” test and it could not be said w/ any confidence that but for the drinks served
following the onset of visible intoxication, the fight would not have occurred. Court held that the
regulation, but not the statute set an appropriate standard of care.
C. Unexcused violations of statute
a. Three views:
i. Negligence per se – conduct negligent “in itself” or “as a matter of law”
(1) The unexcused violation was negligent in itself and that statutory standard can’t be relaxed
(2) Evidence of due care, which is not an excuse, will NOT preclude a finding of negligence per se
(3) JURY INSTRUCTIONS: if jury finds that the facts establish an unexcused violation of statute, it may
inquire no further into the issue of negligence
(a) Martin v. Herzog - ∏’s decedent had failed to equip his buggy w/ a light for night driving, as
required by statute, and the trial court had instructed the jury that this violation of the law was
merely some evidence of negligence. Under the negligence per se line of reasoning, the high
court held that the unexcused violation was negligence in itself and the jury was not free to
relax the statutory standard of conduct or to disregard the ∏’s breach of that law.
ii. Prima facie negligence – a presumption of negligence that may be rebutted by a showing of an
adequate excuse
(1) The violation of a standard setting statute is a presumption of negligence that may be rebutted by
a showing of an adequate excuse
CLZ Tort 2010 31
(2) Due care evidence may be sufficient to rebut the presumption of negligence
(3) JURY INSTRUCTIONS: if the facts show that there was a violation of the statute but no excuse, it
must conclude that the ∆’s conduct fell below the required standard of care and was negligent
iii. Some evidence of negligence – an unexcused violation does not supplant the jury inquiry into the
reasonableness of the ∆’s conduct
(1) JURY INSTRUCTIONS: even if it finds there has been a violation, it is only some evidence, which the
jury is free to accept or reject in determining whether the ∆ acted reasonably
-Midterm-
Excused violations of statute

b. A violation is excused (not negligent) when:
i. Incapacity to comply (e.g., a child can’t read “walk” at an intersection)
(1) Renard v. O’Neil - ∏, almost 8 yrs old, was struck by a car after failing to yield to traffic, in
violation of the statute. Court held that not all children are capable of understanding what care
should be exercised in relation to traffic. The court remanded the case to find whether the ∏
lacked such capacity, if so contributory negligence could not be based on the statutory violation.
ii. Actor exercises reasonable care in attempting to comply w/ the statute (e.g., snow falling faster than
the owner could shovel walkway)
iii. The actor neither knows nor should know of the factual circumstances that render the statute
applicable (e.g., tail light burning out while the ∆ was driving)
iv. The actor’s violation of the statute is due to the confusing way in which the requirements of the
statute are presented to the public
v. The actor’s compliance w/ the statute would involve a greater risk of physical harm to that person or
to others than noncompliance (e.g., if road bends sharply to the left, it may be safer for pedestrians to
walk along the right side, than on the left side as required by statute)
(1) Zeni v. Anderson - ∏ was struck by ∆’s vehicle when she failed to comply w/ a law requiring
pedestrians use sidewalks. It was argued that she was contributory negligent; however, jury ruled
in her favor b/c there was evidence of an excuse for the violation, which showed that using the
sidewalk, which was covered w/ snow and ice, would have been more dangerous than walking on
the roadway.
vi. Emergency
c. Violation of a statute is not excused by the fact that the person sincerely or reasonably believes that the
requirement set by the statute is excessive or unwise; nor is it an excuse if the person is unaware or
ignorant of the statutory requirement; nor is it an excuse if there is a custom to depart from the statutory
requirement
D. Compliance w/ statute – compliance doesn’t necessarily establish that the ∆ acted reasonably (e.g., driving
w/in the speed limit but nonetheless unreasonably fast in the rain)
a. Montgomery v. Royal Motel - ∏s were assaulted and robbed by intruder who entered their unit before the
had locked their hotel room door. ∏s argued ∆ should have taken greater precautions than were required
in the ordinance. Court held the situation was “normal,” in the sense there was no special reason to
anticipate harm, compliance w/ the law precluded any claim from negligence. Case might have turned
out differently had ∏ brought forth proof of prior attacks.
E. Statutes Allowing No Excuse or Defense
a. They seem as if they impose a form of strict liability, though the rubric of negligence is still employed
i. Class of possible laws:
(1) Setting a minimum age for employment in certain hazardous occupations
(2) Prohibiting the sale of adulterated food
(3) Specifying requirements for the safety of employees, tenants, or patrons of businesses open to
the public
(4) Prohibiting the sale to minors of firearms and other dangerous articles
b. Seim v. Garavalia – young girl bitten by neighbor’s dog. Court held that any contributory fault was
irrelevant b/c statute was intended to impose absolute liability on the owner of the animal.
i. Contributory negligence is a defense to a negligence per se claim
ii. Contributory negligence is a defense to a statutory strict liability claim
CLZ Tort 2010 32

iii. Contributory negligence is NOT a defense to a STATUTORY ABSOLUTE LIABILITY claim
§7. SPECIAL STANDARDS OF CARE
A. Special standards of care
a. Degrees of Negligence
i. Slight, ordinary, and gross
ii. Gradiations are not useful – it is necessary to check the case law of the jurisdiction to ascertain their
precise meaning
iii. EXCEPTIONS: bailments, common carriers, utilities, innkeepers, some statute
CLZ Tort 2010 33

CHAPTER 6. PROVING NEGLIGENCE

the burden of proving negligence is on the party alleging it, and merely establishing that an accident
happened does not
prove it.
§1 EVIDENCE OF CUSTOM
A. Custom does NOT determine the standard of care, just a factor
B. Admissible on the issue of reasonable conduct, except in extreme cases where a custom is negligent as a
matter of law
i. Conformance w/ custom  inference of reasonableness
ii. Departure from conformance  inference of unreasonableness
(1) Low v. Park Price Co. - ∏ left vehicle in ∆’s care for a repair job. ∆ left the vehicle in an unfenced
area, where it was subsequently robbed. B/c the ∏ failed to introduce any evidence to overcome
the inference of reasonableness arising from observance of the custom, a judgment for the ∆ was
held. The case might have been decided differently had ∏ proved that ∆ knew of similar thefts in
the neighborhood.
(2) The TJ Hooper – two barges capsized in a storm after the tugboats pulling the barges failed to
receive a report of bad weather. Court found that there was no established custom w/ respect to
having radios. The duty of care is a relative concept that changes.
The standard of care changes with advancing knowledge, experience, and the
changed appliances of navigation
Notes
i. Relevance of Custom- factor to be considered under like circumstance what would
community do.
ii. custom is not controlling- sometimes custom under reasonable circumstances
become quite unreasonable in light of a single fact in particular case.
§2. CIRCUMSTANTIAL EVIDENCE

Evidence from which the fact in question may be inferred (fingerprints, skid marks) to prove the ∆’s negligence
and other issues in tort
Two chief categories of evidence:

i. Direct evidence – evidence that directly supports the finding of a fact in issue (i.e., eyewitness
testimony)
ii. Circumstantial evidence – evidence not of a disputed fact, but of one or more other facts from which
the existence or non-
existence of the fact in issue may reasonably be inferred (i.e., skid marks to show care was speeding at
the time of crash)
*remember direct evidence does not necessarly mean better.
Constructive Notice
*When there is no actual notice to a defendant of a hazardous condition, there may nevertheless be
constructive notice. If the defendant would have been aware of the condition by being reasonably attentive,
the defendant has constructive notice
a. Evidence of Notice
i. Liability for negligence depends on foreseeability, not notice (banana case); notice is required only if
the dangerous condition is out of the ordinary
ii. If harm was not foreseeable, ∏ must establish that ∆ had actual or constructive notice of the danger
iii. Constructive notice is established by evidence that the danger existed so long that it should have
been discovered through exercise of reasonable care (there is no fixed time a condition must exist
before it should have been discovered and remedied)
CLZ Tort 2010 34
b. Goddard v. Boston & Anjou v. Boston Elevated Railway – cases in which ∏s slipped on banana peels. The
courts considered whether there was enough circumstantial evidence to support a finding that the peel
had been in position long enough for the exercise of reasonable care to have required its discovery and
removal.
i. In Goddard, there was no indication of the condition of the banana peel and thus no basis for such a
finding
ii. In contrast, the facts in Anjou, which showed the banana peel was black, dry, and gritty, were
sufficient to support an inference of duration, since it was unlikely that a peel which had reached that
state of disintegration had only recently been discarded
Types of Premise liability
1. Restatement and Traditional premise liability approach- a possessor of land is subject to liability physical
harm caused to his invitees
by a condition on the land if but on only if he
a. knows or by exercise of reasonable care would discover the condition and should realize that it
involves an
unreasonable risk of harm to such invitees
b. should expert that they will not discover or realize the danger or will fail to protect themselves
against it
c. fails to exercise reasonable care to protect them against the danger
2. Mode of operation
* focuses on the nature of the defendants business that gives rise to a substancial risk of injury to customers
from slip and fall accidents. An owners chosen mode of operation makes it reasonable foresseable that a
dangerous condition will occur. A store owner could be held liable for injuries to invitees if the (P) proves that
owner failed to take all reasonable precautions necessary to protect invitees from these forseable dangers.
i. If the evidence establishes a specific negligent mode of operation such that the premises owner could
reasonably anticipate that dangerous conditions would arise as a result of its mode of operation, then
whether the owner had actual or constructive knowledge of the specific transitory foreign substance is
not an issue
3. Burden Shifting Approach.

(P) proves that an injury occurred resulting from a premise hazard or a transitory foreign substance in a
self service store a rebuttable presumption of negligence arises. Burden then shifts to the defendants “to
show greater weight of evidence that it exercised reasonable care in the maintance of the premises under
the circumstances.
Premises Liability Approach

iii. Issues of causation and notice are to be treated not as elements of the customer’s case, but as
affirmative defenses of the business proprietor
iv. Sheehan v. Roche Bros. Supermarkets – court recognized some states endorse a radical view, that if a
∏ proves that an injury occurred as a result of a premises hazard or transitory substance in a self-
service store, there is a rebuttable presumption of negligence. The burden then shifts to ∆ to prove
that it exercised care in the maintenance of premises.
Traditional Premises Liability Approach: a possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land if, but only if, he
a. Knows or by the exercise or reasonable care would discover the condition, and should realize
that it involves an unreasonable risk of harm to such invitees, and
b. Should expect that they will not discover or realize the danger or will fail to protect
themselves against it
c. Fails to exercise reasonable care to protect them against the danger
∆ is not liable unless he has actual knowledge or constructive notice of the dangerous condition that
CLZ Tort 2010 35

Modern Premises Liability Approach: Recurrent Risk Approach
If an owner is aware of the existence of a recurrent condition that poses a potential danger to
invitees may not ignore that knowledge and fail reasonably to respond to the foreseeable danger of
the likelihood of a recurrence of the condition.
§3. RES IPSA LOQUITUR

A. Res Ipsa Loquitur – “The thing speaks for itself”- “it this or regular direct negligence cant bring both up in
suit”
Res Ipsa Loquitor: one kind of circumstantial evidence from which breach of duty and causation
may be inferred
Applicable when two factors present i. character of the accident is such that it would not
ordinarily occur in the
Absence of negligence.
ii. the instrumentality causing the injury is shown to have
been under the
management and control of defendent
Elements:
a. No direct evidence
b. Type of injury does not normally occur in the absence of negligence
c. ∆ has exclusive control of the instrumentality
d. ∏’s injury was not due to his own action
B. Exclusive Control
a. Does not require showing that the ∆ was in exclusive control of the dangerous instrumentality
i. All that is required is control at the time the negligence probably occurred
ii. Control is not a rigid requirement
(1) Mobil Chemical v. Bell – workers were injured when acid spewed from a rupture in a chemical
processing system. Applying res ipsa, the ∏ was required to show the instrumentality was under
the control of the ∆. ∆ is not required to have control of it when the accident happened. Court held
res ipsa applied b/c it was likely the negligence took place while the machine, which had recently
been installed, was in the ∆’s exclusive possession.
C. Superior Knowledge
a. It is not necessary that the ∆ have superior knowledge
i. This evidence can be influential, however
b. Mahowald v. Minnesota Gas Co. – a gas main exploded, injuring persons and property. The court based its
decision to allow the use of the doctrine on the fact that the company has “superior knowledge of the gas
distribution system” and “access and opportunity to identify persons acting in the vicinity of the gas
mains”
D. Rebuttal Evidence
a. Due-care evidence does NOT preclude reliance on res ipsa b/c the accident still remains unexplained
b. If ∏ is aware of how the accident occurred, there is no reason the ∏ should have the advantage of special
CLZ Tort 2010 36
inference or presumption instead of having to prove that ∆’s conduct was unreasonable
i. Cox v. Northwest Airlines - ∏’s husband was killed when the ∆’s flight disappeared over the Pacific
Ocean. ∆ produced testimony that if had exercised due care regarding maintenance, safety training,
personnel qualifications, and weather conditions. The court held that the due-care evidence did not
preclude reliance on the res ipsa loquitor doctrine b/c the crash still remained wholly unexplained.
The case would be different if the ∆’s rebuttal evidence shows that in addition to due-care evidence,
an outside agency was responsible for the accident.
E. Res Ipsa and Plantiffs conduct.
a. Under comparative negligence, a res ipsa ∏ is only required to show that the ∆’s inferred negligence was,
more probably than not, a cause of the injury, even though ∏’s negligent acts or omissions may also have
contributed to the injury
F. Multiple Defendants
a. It would be unreasonable to require a person who was unconscious at the time of the injury to identify
the wrongdoer
b. If the ∆’s stand in relationship w/ one another as professional colleagues, they ALL have responsibility for
∏’s injuries
c. Reliance on the doctrine is usually NOT allowed when the ∆s are strangers to each other
d. Ybarra v. Spangard – during an appendectomy, the ∏ suffered an injury to his shoulder. Negligence
case was brought against the attending professionals. There was no dispute that the injury normally
would not have occurred in the absence of negligence and that the ∏ was not a responsible cause. The
court recognized that it would be manifestly unreasonable to require a person who was unconscious at
the time of injury to identify the wrongdoer. Unless the ∏ could rely on res ipsa to establish negligence,
the court would be faced w/ the unattractive choice of allowing ∆s to escape liability. Court determined
that the ∏ could rely on the doctrine to raise a presumption of negligence as to each ∆, but any ∆ could
meet that presumption by giving a satisfactory explanation of his conduct. Jury found all ∆s liable.
i. Ruling in Ybarra was based in part on the fact that the ∆s stood in a special relationship to one
another as a professional team, each of which had a responsibility. In cases where they are strangers,
reliance on the doctrine has generally not been allowed.
ii. Joint control is the key test for determining whether res ipsa will apply against multiple ∆s.
G. Procedural Effect
Procedural Effect of Res Ipsa Loquitur
3 views:
a. Permissible inference (majority) – jury is free to accept or reject
b. Presumption that shifts the burden of going forward w/ evidence (the burden of production)
i. Res ipsa requires a directed verdict for the ∏ if the ∆ fails to offer any evidence to rebut
the presumption of negligence
c. Presumption that shifts the burden of persuasion
i. ∆ must prove by a preponderance of the evidence that the injury was not caused by the
∆’s negligence
ii. Rare
Disposing of unfavorable evidence
CLZ Tort 2010 37

Spoliation of Evidence
Minority: spoliation of evidence can be an independent tort action (rarely)
Majority: spoliation should be addressed through sanctions

What sanction is appropriate?
i. Dismissal of action
ii. Exclusion of evidence
iii. Rebuttable presumption (shifts burden to spoliation party)
iv. Presumption of unfavorability (adverse presumption- no burden shifts)
A. ∏’ ability to prevail at trial may be adversely affected when the ∆ or a 3rd party loses, destroys, or alters
relevant evidence.
a. Trevio v. Ortega – case that arose from the destruction of medical records, trial judges have broad
discretion to deal w/ spoliation by imposing sanctions or by submitting instruction to the jury. The course
of remedy should depend upon the culpability of the spoliator and the prejudice to the ∏.
B. Duty to preserve
a. Upon a spoliation complaint, the threshold question should be whether the alleged spoliator was under
any obligation to preserve evidence
i. A party may have a statutory, regulatory, or ethical duty to preserve evidence
b. A spoliator can defend an assertion of negligent or intentional destruction by providing other
explanations for the destruction
C. Remedy
a. A party is entitled to a remedy only when evidence spoliation hinders its ability to present its case or
defense
b. Once the court finds that evidence has been improperly spoliated and that the non-spoliating party was
prejudiced by the act, the court should decide what sanction to apply
i. Sanctions:
(1) Important factors for the trial court to weigh include the degree of the spoliator’s culpability and
the prejudice the non-spoliator suffers
(2) Dismissal of action or Default Judgment– most severe sanction
(3) Excluding evidence or testimony – generally used when spoliating party is trying to admit
evidence in their favor
(4) Presumption instruction to jury-
a. Rebuttable presumption – used when the non-spoliating party cannot prove its prima facie case
w/o the evidence
i. Jury is instructed to assume that the spoliated evidence was unfavorable to spoliating
party
ii. The spoliating party bears the burden to disprove the presumed fact or issue
b. Adverse presumption – assumes that the evidence would have been unfavorable to spoliating
party
i. Simply another favor used by the fact finder in weighing the evidence
CHAPTER 7. FACTUAL CAUSATION
Overview- burden of proof in nearly every tort action whether intentional wrongdoing, failure to exercise care
or strict liability the plaintiff must prove causation.
Causation: A Two-Step Inquiry
Factual Causation: a factual inquiry into whether the ∆’s conduct precipitated the injury
Proximate Causation: a policy inquiry into whether it is fair to impose liability on a ∆ whose conduct
was a factual cause
CLZ Tort 2010 38

A. Williams v. Steves Industries, Inc. – illustrates the two-part inquiry into causation. Court held that an award of
damages for the death of the ∏’s children had to be reduced by reason of the ∏’s comparative negligence,
since but for the ∏’s negligent failure to keep gas in the car, the car would not have stalled on the highway
where it was foreseeably struck by the ∆’s truck.
§1. BUT-FOR TEST (Sine Qua Non)

Factual Causation
∏ normally has the burden of proof
Conduct is a “substantial factor” if it was:

i. “But for” or
(1) indispensible contribution
(2) can be more than one “but for”
ii. Independently sufficient (if #1 is not satisfied)
(1) If the ∆’s conduct made a material contribution to the production of harm
(2) Ex. If 20 senators simultaneously stab Caesar on the steps of the Roman Senate, and
any one wound would have been fatal, the stabbing inflicted by Brutus is a factual
cause of the death b/c it was independently sufficient to cause the death.
Factual Causation Encompasses three subcategories indispensable causes, independently sufficient causes and
otherwise substancial causes.
§ Indispensable Causes Sina Qua Non “but for” test

i. ∏ is not required to establish causation in fact w/ absolute certainty; it is sufficient that the evidence
shows that the ∆’s conduct
more likely than not brought about the accident
Ex. The ∆’s conduct can never be a factual cause unless the chances of harm to the ∏ have been multiplied
Reynolds v. Texas & Pacific Railway Co. – a woman fell down an unlighted train station stairway and
sustained injuries. The ∆ claimed that the ∏ had failed to show that the absence of a light caused the
accident, because the fall might have occurred even in broad daylight. The court rejected the argument,
observing that “where the negligence of the ∆ greatly multiplies the chances of accident…the mere
possibility that it might have happened without the negligence is not sufficient to break the chain of
cause and effect.” In determining whether a given act more likely than not caused an injury, a jury can
look to circumstantial evidence and can usually rely upon its common knowledge.
ii. In determining whether a given act more likely than not caused an injury, a jury can look to
circumstantial evidence or expert
testimony, or can rely upon common knowledge (in the absence of direct evidence)
When the events are viewed retrospectively, the evidence must show that more likely than not the
∆’s acts were a factual cause: a one in a hundred chance that the contribution was a but-for cause is no
basis for liability.
DO NOT CONFUSE THE BUT FOR TEST W/ THE EVIDENTIARY STANDARD APPLICABLE TO PROVING A FACTUAL
CAUSATION!
EX. Kramer Service v. Wilkins – court held that the ∏ had failed to introduce sufficient evidence to support
a jury finding that a negligently caused cut on the ∏’s forehead had caused the ∏ to develop cancer. One
expert testified that there was no casual relationship between the cut and cancer, and the other estimated
the chances at only one hundred. Based on that evidence, the jury could not find that the cancer more likely
than not was caused by the ∆’s conduct. Moreover, because the case involved a complex medical question,
the jury could not rely on common knowledge to remedy the deficiency in expert testimony, and the award
of damages for cancer was reversed.
Just as a jury cannot speculate causation, neither can an expert witness. An expert’s testimony must be solidly
rooted in the evidence.
Ex. Saelzler v. Advanced Group 400 – an expert testified that the assault and attempted rape of a delivery
CLZ Tort 2010 39
person at an apartment complex was caused by the absence of daytime security personnel and poor
maintenance of the gates leading into the complex. The court concluded that the testimony was speculative
and could not support a finding of factual causation because the ∏ could not identify her assailants. Absent
identification, it could not be said that the attack was more likely than not perpetrated by intruders, rather
than by other tenants who had been responsible for a substantial number of incidents and disturbances at
the complex.
iii. Difference b/w this case & Montgomery is that in this case, the added security wouldn’t necessarily
stop the attack, the ∏
couldn’t prove it would have
a. The ∏ could have argued B<PL theory or that b/c ∆ knew he had a gang member living there,
duty should have gone up
Knowing = constructive notice
b. ∏ is not required to establish causation in fact w/ absolute certainty; it is sufficient that the
evidence shows that the ∆’s conduct more likely than not brought about the accident
iv. Substancial Factor Test for Causation

a. if two forces are actively operating..and each of itself is sufficient to bring about harm to
another, the actors negligence may be found to be a substancial factor in bringing it about. –in
other words but for test applies to all cases except those involving two independently sufficient
torts.
Ex. v. Minneapolis, St. P & SS.M.Ry.Co. - ∆’s property was destroyed by (a) a fire negligently started by the
∆, (b) another fire of uncertain origin, or (c) a combination of the two fires. To recover, the ∏ was not
required to prove that but for the ∆’s negligence the harm would not have occurred. If the ∆’s fire was a
“substantial element” in causing the ∏’s damage, liability could be imposed.
Causation based on breach of statute

The breach of a statutory duty itself may give rise to an inference that an injury was the proximate result of
the violation
Multiple “but for” Causes

As shown earlier, an accident may, indeed must, have more than one “but for” cause, and so more than one
∆ may be liable for injury.
Ex. In a case in which on was negligent for leaving his truck parked in the road, and the other ∆ was
negligent in failing to take evasive measures to avoid hitting it, both actions were factual causes of the
injuries sustained by a passenger in the second vehicle. But for the negligence of each ∆, the accident
would not have occurred.
Independently Sufficient Causes

If two or more causes concur to bring about an event, and any one of them, operating alone, would have
been sufficient to cause the identical result, some other test is needed.
Anderson v. Minneapolis – A fire negligently started by the D merged with a fire of unknown origin, and the
resulting conflagration destroyed the P's property. To recover from the D, the P was not required to prove
that but for the D's negligence the harm would not have occurred. If the D's fire made a material contribution
to the production of the harm, liability could be imposed, even if the other fire alone would have been
sufficient to cause the entire destruction.
See SATL p. 367 for hypos
§2. THE “LOSS OF CHANCE” DOCTRINE

A. Allows ∏ to recover damages by showing that the ∆ was a substantial factor in causing the ∏ to lose a
significant chance of escaping the harm in question
a. Texas rejects this doctrine
B. The ∏ must prove that but for the ∆’s tortious conduct, the chance would not have been lost
Example. Matsuyama v. Birnbaum – the court recognized the loss-of-chance doctrine in a case where medical
malpractice deprived the ∏ of a less-than-even chance of surviving cancer. The court found that medical science
now makes it possible to estimate a patient’s probability of survival w/ reasonable certainity and therefore
recovery for the lost opportunity of curing a disease was particularly appropriate.
Difference btw all or nothing and loss of chance
CLZ Tort 2010 40
i. all or nothing- over 50% survival rate you get relief if you have lower than 50% than you get
nothing (ct said unfair)
ii. loss of chance- treat defendants negligence as an injury to plaintiffs.
C. In cases of aggravation of a pre-existing condition, a two part test is employed for factual causation:
a. Did the negligence increase the risk of harm to the patient?
b. Was the increased risk a substantial factor in producing the patient’s injuries?
D. Damages
a. Some courts leave assessment of damages up to the jury based on evidence
b. Some courts: multiply the lost percentage chance of survival by the damages that could be recovered in
a wrongful-death case
§3. MULTIPLE FAULT AND ALTERNATIVE LIABILITY
Multiple Fault and Alternative Liability
The burden of proof on factual causation shifts to the ∆s, if:

i. Each is shown to have acted tortiously
ii. The actual wrongdoer is one of the small number of ∆s before the court
iii. The nature of the accident makes it impossible for the ∏ to prove causation
Each ∆ is subject to full liability for the ∏’s injuries, absent proof of lack of causation
A. Summers v. Tice - The P and both Ds were members of a hunting party. While attempting to shoot a quail,
the two Ds negligently fired simultaneously in the direction of the P. one of the shots put out the P's eye.
Finding that it was unreasonable to require the P to prove which D had caused the injury, and relying on the
fact that both Ds were shown to have been negligent (whereas the P was completely innocent), the court
held that the burden of proof on the issue of causation should be shifted to the Ds. Each would be held liable
unless he could show that he was not responsible for the harm.
a. Under the rule in Summers, the burden of proof will shift so (D) will not be silent, only in cases where it is
shown that all ∆s are negligent. If the evidence shows that only one or several ∆s was at fault, the rule of
multiple fault and alternative because if not all joined in suit one of the partys actually responsible could
escape liability.
§4. ENTERPRISE LIABILITY & MARKET SHARE

Overview
A. Burden of proof shifts to the ∆s
Market Share Liaility
CLZ Tort 2010 41

Market Share Liability
CALI version: each ∆ will be liable for the part of the judgment proportional to its share of the
market, UNLESS the ∆ demonstrates that it could not have made the dosages which caused the ∏’s
injuries
A. Sindell v. Abbott Labs (CA Rule) - The P, a young woman, claimed to have contracted cancer as
a result of prenatal exposure to the drug DES. She sued some, but not all, of the manufacturers
who had sold DES for use by pregnant mothers. The Ds were shown to have been negligent in
testing marketing the drug, but it was impossible to establish which manufacturer had made the
dosages that were taken by the P's mother a generation earlier.
NY version: manufacturer’s shares are calculated on the basis of a national market; a ∆ CANNOT
escape liability even w/ proof they didn’t make the dosage; the ∏’s recovery is limited to a
percentage of her losses equal to the percentage of the national market represented by the ∆s
B. Hymowitz v. Eli Lilly & Co. (NY Rule) - The NY court held that to reduce the burden on litigants
and ensure a greater degree of consistency between individual cases, market shares should be
calculated on a national basis. Doing so, the court believed, would tend to apportion liability so
as to correspond to the overall culpability of each D, measured by the amount of risk of injury
each D created to the public at large. Furthermore, the court held that a manufacturer who
distributed the drug for use by pregnant mothers could not avoid liability by proving that it did
not make the dosages of the drug which had harmed the P. In addition, the court determined
that under its approach to market share liability, liability of DES producers is several only, and
A. In Sindell, The rule of alternative liability, as articulated in Summers, supra, was inapplicable to the case
because only five of the nearly two hundred manufacturers of DES were before the court. It could not be said
in Sindell, as it could be said in Summers, where both of the two negligent hunters were sued, that one of the
∆s before the court must have caused the injury. Nor was it feasible to require the ∏ to establish such
certainty by joining as additional ∆s the remaining manufacturers, for in all probability some had gone out of
business and others would not be subject to the jurisdiction of the court.
B. In Hymowitz, the embraced a compromise position pursuant to which neither side in the litigation gained
everything that it wanted: a D might be held liable although it did not make the pills taken by the P's mother,
and the P would probably be unable to recover the full amount of her damages.
Enterprise Liability
A. Controlled by a small size group of ∆s
B. If the ∏s can establish by a preponderance of the evidence that the things in issue were manufactured by
one of the ∆s, the burden of proof on causation would shift to the ∆s
Shifting the Burden of Proof

A. The unavailability of proof as to causation was at least as much fault of the ∆s as it was of the ∏
B. The ∆s could better absorb or spread the cost of injury
C. Placing the burden of proof on the ∆s would be an incentive to safety in the future
Grounds for Joint and Several Liabilities

A. Concerted Action
a. Civil Conspiracy (by agreement)
b. Aiding-and-Abetting
B. Respondent Superior
a. CASE: See Moore v. Paso Chamber of Commerce (western event where girl ran into glass door b/c she
was being chased by an agent of the ∆s’, court held ∆ liable)
b. Definition: one person, who is without fault, is held vicariously liable for the tortious actions of another
c. In the work setting, an employer will be held liable for the torts of another employer, IF:
i. It is the kind he is employed to perform
ii. It occurs within the authorized time and space limits
iii. It is done by a purpose to serve the master, and
(1) If force is intentionally used by the servant against another, the use of the force is not unexpected
by the master
CLZ Tort 2010 42

d. Joint enterprise
§5. CONCERTED-ACTION LIABILITY

Overview
A. Under concerted action, suit may be maintained against a person who stood in a particular relationship to
the wrongdoer.
B. Two forms of concerted action:
a. Civil conspiracy
b. Aiding and abetting
C. Herman v. Wesgate – the ∏ was was thrown overboard during a floating stag party and sustained injuries. In
the subsequent suit, the court refused to allow the complaint to be dismissed against certain Ds merely upon
a showing that they were not the parties who laid hands upon the P. If these Ds encouraged or otherwise
aided the misconduct of the primary actors, they could be held fully responsible for the resulting injuries to
the P. The extent of their participation, if any, was a question of fact for the jury to determine.
Civil Conspiracy
Civil Conspiracy
A. An agreement between two or more persons

B. To do
a. An unlawful act, or
b. A lawful act in an unlawful manner
C. Harm caused by the act of a party to the agreement
D. In furtherance of the common scheme
A. Agreement – tactic or explicit—is the key distinguishing factor of civil conspiracy

B. A conspirator is liable for acts done in furtherance of, or w/in the scope of, the conspiracy
C. Must have proof of damages
D. In tort law (unlike criminal law) a conspiracy to commit a wrong is not actionable if in fact no wrong is
committed. Proof is essential.
Aiding-and-Abetting
Aiding-and-Abetting
A. A wrongful act by the principle causing injury

B. General awareness by the ∆ of his or her role in the overall illegal activity
C. Substantial assistance
a. Nature of the act encouraged
b. Amount of assistance
c. Duration of the assistance
d. ∆’s presence or absence at the time
e. ∆’s relation to the tortfeasor
f. ∆’s state of mind
g. Duration of the assistance
Foreseeability: one who assists a tortious act is liable for reasonably foreseeable acts done in connection
with it
A. The principal distinction between civil conspiracy and aiding-and-abetting is that a conspiracy involves an
agreement to participate in a wrongful activity
B. Halbertsam v. Welch - A wife who for years had helper her husband to dispose of the loot he had acquired
through illegal activities was held liable under both theories of concerted action for a murder he committed
during a burglary, even though she did not specifically know that he was committing burglaries. The use of
violence to avoid detection and apprehension was a foreseeable risk of several types of criminal conduct that
were foreseeable from the regular acquisition of the loot.
Joint Enterprise
CLZ Tort 2010 43
A. Includes a partnership, but also less formal arrangements for cooperation during more limited period of time
and for more limited purposes
B. Elements
a. An agreement, express or implied, among the members of the group
b. A common purpose to be carried out by the group
c. A community of pecuniary interest in that purpose, among the members
d. An equal right to a voice in the direction of the enterprise, which gives equal right of control
C. Usually a question for the jury
Incitement
i. Relevant variables
a. defendants level of culpability
b. know if defendants statement is protected by the first amendment
c. forseeability – liability will not be imposed for harm that is unforeseeable
ii. Culpability
a. degree of “culpability”
iii.Freedom of speech
a. plaintiffs usually have to establish that the publication went beyond mere advocacy and
amounted to incitement.
iv. Unforeseeability of the injurer, the conduct or the victim
a. cts generally unwilling to impose liability on an aideing and abatting theory against seller of
goods or media.
A. It is necessary to consider whether communications are protected by the 1st Amendment
a. Herceg v. Hustler Magazine – raises the issue of whether statements in a widely distributed publication
can give rise to tort liability for physical injury based on a theory of tortious “incitement.” In Herceg a boy
was asphyxiated while engaging in sexual acts depicted in a magazine. The court held that, for liability to
arise, the ∏s had to establish that the publication went beyond mere advocacy and amounted to
incitement, and that incitement was directed to imminent action. The court found that under no fair
reading could the article be seen as advocacy, let alone incitement.
B. Cases against the media have typically failed
C. EXCEPTION: publications of material relating specifically to the ∏ have been upheld
a. Ex. publishing the name and address of a witness to a crime while the perpetrator is still at large…ONLY
if the criminal murders (or harms) the ∏
CLZ Tort 2010 44

Perspectives on Factual Causation
Factual Causation, put simply:
A. Paradigm Case
a. ∏ must carry the burden of proof
B. Ybarra
a. ∏’s burden is eased
C. Summers
a. Burden of proof shifts to ∆s if all were negligent and the responsible party is in court
D. Hall
a. Burden shifts to ∆ if all jointly controlled the risk and there is virtual certainty the responsible party
is in court
E. Sindell
a. Burden shifts to ∆s if the number sued is sufficiently substantial to prevent injustice
F. Halberstam
a. ∏ need not show that ∆ caused the harm, but only that ∆ acted in concert w/ the wrongdoer
G. Hymowitz
a. ∆ who previously engaged in particular type of conduct is liable even if it can prove that it neither
caused the ∏’s harm nor acted in concert with the party that did
CHAPTER 8. PROXIMATE CAUSATION

§1. A POLICY ON FAIRNESS
Overview
A. Policy determination on the issue of how far liability should extend for harm factually caused by tortious
conduct
B. One should not automatically be held liable for all of the consequences of one’s actions, especially if the
results are unexpected
C. Tends to limit liability
D. If tortious conduct has factual causation but not proximate causation, there is no liability
a. MUST have both factual and proximate causation to have tortious liability
E. Matter of foreseeability
F. Remember different ways of assessing proximate causation.
§2. DIRECT CAUSATION VS. FORESEEABILITY

Overview
Two Paradigms
A. Direct Causation
a. Liability is imposed even for unforeseeable harm directly resulting from the ∆’s tortious conduct
B. Foreseeability
a. Liability is limited to foreseeable results
Both views have influenced the development of the law
CLZ Tort 2010 45

Direct Causation
1. under direct causation approach liability is asssesd whenever there is a direct connection between the
negligence of the
defendant and the injury to the plaintiff.
A. Must be a natural and continuous sequence
a. Must be an unbroken stream from the actor’s conduct, not until the threat of causation is broken by the
intervention of a superseding cause does the scope of liability cease
b. Does NOT matter how unforeseeable the harm is
c. The fact that the damage was not the exact kind or amount that one would expect was immaterial, so
long as the damage is traceable to the negligent act
B. Essentially an assessment from hindsight
C. Polemis - a plank was negligently knocked into the hold of a ship. In the course of falling, the plank struck a
spark which ignited petroleum vapor, and the resulting fire destroyed the entire vessel. The court held that
even though the spark could not reasonably have been anticipated from the falling of the board, the D was
liable for all of the destruction. According to the court, if the act was negligent in that some damage was
foreseeable, the fact that the damage was not the exact kind or amount that one would expect was
immaterial, so long as the damage was directly traceable to the negligent act, and not due to the operation
of independent forces.
Polemis: Direct Causation
∆ is liable for ∏’s harm if

a. The harm is directly traceable to ∆’s negligent act
b. Not due to independent acts
c. It is immaterial whether the harm is that one would (foreseeability is irrelevant)
Direct causation is also called the “hindsight” approach
Foreseeability
A. The assessment is prospective, and the liability is limited to those damages which were, or should have been
foreseen by the actor
a. Liability depends upon the reasonable foreseeability of the damage which in fact occurs
Foreseeability View
∆ is liable for ∏’s harm if

d. The harm is directly traceable to ∆’s negligent act
e. Not due to independent acts
f. It is immaterial whether the harm is that one would (foreseeability is irrelevant)
Direct causation is also called the “hindsight” approach

B. Wagon Mound No. 1 - A case which arose from the careless discharge of furnace oil into waters near the Ps'
wharf. Molten metal dropped by the Ps' workers ignited the floating oil, leading to a fire which destroyed the
wharf. The court found that current ideas of justice argued against saying that because of a venial act of
negligence, an actor should be liable for all direct consequences, however unforeseeable and grave. Liability,
the court opined, depends upon the reasonable foresseability of the damage which in fact occurs. Since
there was an express finding by the lower court that it was not foreseeable that the oil could be set afire
when spread on water, the D was not liable for the loss of the wharf.
CLZ Tort 2010 46

Foreseeability of Harm or Manner of Its Occurrence
A. If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the
actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it
occurred does not prevent him from being liable
B. The actor’s conduct may be held not to be a legal cause of harm to another where after the
event and looking back from the harm to the actor’s negligent conduct, it appears to the court
highly extraordinary that it should have brought about the harm. (Hindsight approach)
CLZ Tort 2010 47

§3. MODIFIED FORESEEABILITY
Modified Foreseeability
What must be foreseen?
A. General class of persons (Palsgraf, Kinsman #1)
B. General type of harm
What need not be foreseen?

A. Exact manner of harm (Merhi)
B. Full extent of harm (Kinsman #1, McCahill)
C. Ordinary rescue efforts
However:
A. The result must be within the risk created b the ∆’s conduct (Di Panzio)
B. Foreseeability is not sufficient to create liability if harm is “too tenuous and remote” (Kinsman
#2)
What must be foreseen?
A. It is never necessary for the ∆ to foresee the identity of the particular ∏. It is enough if there is danger of
harm to the class of persons of which the ∏ is a member
a. See Palsfraf
b. Kinsman No. 1 - The court held that as to each of the three D's the Ps, whose properties bordered the
river below the dock but above the bridge, were within the class of persons to which danger was
foreseeable. The impossibility of advance identification of the particular person(s) who would be hurt was
without legal consequence. Further, the court stated: "foreseeability of danger is necessary to render
conduct negligent; here the damage was caused by just those forces whose existence required the
exercise of greater care than was taken--the current, the ice, and the physical mass of the Shiras, the
incurring of consequences other and greater than foreseen does not make the conduct less culpable or
provide a reasoned basis for insulation." "The weight of authority in this country rejects the limitation of
damages to consequences foreseeable at the time of the negligent conduct when the consequences are
direct, and the damage is of the same general sort that was risked.
B. Foresight of a remote possibility of harm may be sufficient to establish proximate causation
a. Wagon Mound No. 2 - The court here had expressly determined that the combustion of furnace oil on
water was a foreseeable, though remote, possibility. Relying upon what was essentially a Learned Hand
type balancing test applied not to the element of breach but to the issue of proximate causation, the
court determined that there is a duty to anticipate even remotely possible risks, at least to the extent
that the prospective danger can easily be avoided. Since the D had offered no justification for the
discharge of oil into the harbor, which in fact was illegal, the court reversed a judgment in the D's favor.
Interestingly, to the extent that there is a duty to anticipate the remotely possible, the foreseeability view
of proximate causation covers much the same ground as the direct causation rationale.
C. Eggshell skull Doctrine
a. Taxi cab driver hits respondent, found guilty of negligence and the latter free from contributory
negligence injured hip and knee, went to hospital died two days later from delirium tremens.
Inconclusive whether injury by taxicab caused death ,physician states could have condition before
accident.
b. That the negligent act directly set in motion the sequence of events which caused death at the time it
occurred. – hence eggshell skull doctrine take plantiffs as you find them – as is-
i. Remember it is not if action would cause a specific injury but any injury.
ii. Proximate cause and eggshell- common in that the tend to make the amount of damages
actually paid by
negligent defendants as whole approximately equal to the amount of harm done by those
defendants.
What need NOT be foreseen?

A. The ∆ need not anticipate the exact manner of the occurrence
a. Merhi v. Becker - A risk of physical harm to the P was a foreseeable consequence of the D's failure to
have adequate security, so it made no difference that the precise manner of the injury, namely the P's
being struck by a car driven by an angry picnicker, would not have been anticipated.
B. The ∆ need not anticipate the exact extent of harm, so long as the harm which ensues is of the same general
sort that was risked by the ∆’s conduct
CLZ Tort 2010 48
a. Kinsman No. 1 - The case may be interpreted either of two ways: either it endorses the direct causation
view of proximate causation, with the important limit that the harm in question must be of the same
general sort that was risked by the D; or it loosely interprets the foreseeability view so that foreseeability
of the full extent of the harm is not required.
b. McCahill - The D's taxi negligently struck the P's intestate. Two days later the man died of delirium
tremens, which could not have resulted had he not been an alcoholic. The court held the D responsible
for the death, finding that the negligent act had directly set into motion the sequence of events which
caused the death. The possibility that the intestate might have died later from DT because he was an
alcoholic was not a defense, but could be taken into consideration in determining damages.
i. Eggshell Skull--holds that once a P suffers any foreseeable personal injury, even a trivial one, the d is
liable for all physical consequences, even unforeseeable injuries, so long as they do not stem from
superseding causes.
However:
A. It bears emphasis, however, that the result must be within the risk created by the ∆’s conduct
a. Di Ponzio v. Riordan - Because the type of accident that injured the P was not among the hazards that are
normally associated with leaving a car engine running during the operation of a gas pump, the alleged
misconduct of the D's employees did not give rise to liability. Consequently, it is fair to say that, for
purposes of proximate causation, a difference in manner of occurrence is irrelevant only if the result was
within the risks that made the D's conduct negligent.
R3T: Result Within the Risk
§ 29. Limitations on liability for Tortious Conduct
An actor is not liable for harm different from the harms whose risks made the actor’s conduct
tortious
§ 30. Risk of Harm Not Increase by Tortious Conduct

An actor is not liable for harm when the tortious aspect of the actor’s conduct did not increase
the risk of harm
R2T: conduct is considered negligent when it tends to subject another to an unreasonable risk of
*Review what is in pag 434 of txbook very important stuff
B. Foreseeability is not sufficient to create liability if harm is “too tenuous and remote”
a. Kinsman No. 2 - Ps were owners of wheat aboard a ship that could not navigate because of the wreckage
caused by accident. They brought suit to recover costs for transport of the wheat via another route. The
court held that even though it was foreseeable that commerce on the river would be disrupted and that
some parties would incur such costs, the relationship of those costs to the Ds' negligence was too
tenuous and remote to permit recovery.
i. It is clear that temporal remoteness--the passage of time--figures into the assessment of proximate
causation. At some point so much time has passed, and so many developments have occurred, that it
becomes unfair to impose liability and, accordingly, the law may decline to do so one the ground that
the temporally remote harm was not proximately caused.
§4. SUPERSEDING CAUSATION
Distinguishing Intervening and Superseding Causes
Intervening & Superseding Causes

Intervening
A force that comes into play AFTER the ∆’s tortious conduct has occurred and actively
contributes to the production of the harm for which recovery is sought
Superseding
An intervening force of the type that CUTS OFF the ∆’s liability and subsequent harm- takes
away liability in sense of what is usual and customary or to be expected.
CLZ Tort 2010 49

A. Intervening (e.g., heavy rain)
a. There is a gap between the tort and the claim
B. Superseding (e.g., destruction of the cottages)
a. Foreseeability determines superseding causes
i. The force was a “normal” consequence of the ∆’s conduct (not abnormal or extraordinary)
b. If either the intervening force or the harm which ultimately ensues is reasonably foreseeable, the actor’s
liability for subsequent consequences of antecedent tortious conduct is NOT superseded
c. Was the intervening force or the end result w/in the scope of the risks that made the ∆’s conduct
negligent or otherwise tortious?
End Results Within the Risk- another way to talk about proximate causation is to say that the results must
fall within the scope of risk that made the defendants conduct tortious.
A. If the general sort of harm is foreseeable, the mere fact that the ∆ could not anticipate the precise manner of
the accident or the exact extent of the injuries does not preclude liability
a. Derdiarian v. Felix Contracting Corp. - Was a cause involving a foreseeable result. There, the D prime
contractor had negligently failed to guard properly an excavation in the road. The P, an employee of a
subcontractor, was injured when a car chashed into the site after its driver suffered an epileptic seizure.
The court held that the intervening act was not a superseding cause because the jury could find from the
evidence that the foreseeable, normal and natural result of the risk created by the D was the injury of a
worker by a car entering the improperly protected work area. If the general sort of harm is foreseeable,
the mere fact that the D could not anticipate the precise manner of the accident or the exact extent of
the injuries does not preclude liability.
B. Where acts of a third person intervene between defendant's conduct and plaintiff's injury, the causal
connection is not automatically severed and, in such case, liability turns on whether the intervening act is a
normal or foreseeable consequence of the situation created by defendant's negligence.
Superseding Causation
a. Spears v Coffee - three teenagers at the coffees house, one kid assaulted another and the parents
sued kid and the locus in quo owners alleging negligence. Parent father was out of town in time of event and
mother was out in the front lawn. Ct determine parents not liable for acts were not foreseeable and was a
superseding cause of the injuries, thus negating ordinary foreseeability element of proximate cause.
Conditions v Causes
a. held that legal causes is not established if the defendants conduct or product does no more than
furnisht eh condtion that makes the plaintiffs injury possible.
Special Rules on Intervening and Superseding Causes

a. Rescue doctrine- law encourages people to help others during emergency- wrongdoer may be liable to
those who a 3rd party in trying to rescue from the perils of his wrongdoings.
b. doctrine is not a single rule / 2 out of the five allow victim to recover from the creator of th peril or the
rescuer for injuries arising from the intervention, and three of which relate to the ability of the rescuer to recover
from the creator of the peril or a third person for injuries sustained in the course of the rescue effort.
CLZ Tort 2010 50

Foreseeable Intervening Acts
A. Rule: Foreseeable intervening acts do NOT break the chain of proximate causation
a. While a force of nature, which cannot be anticipated, will ordinarily cut off liability
Exceptions to the General Rule

A. Two exceptions to the general rule that an intervening cause does not preclude a finding of proximate
causation if either the new force or the end result is foreseeable:
a. Liability if superseded even if the intervening force is foreseeable, if the D's conduct in no way increases
the risk of harm by the intervening force
i. Ex. A driver cause an accident and while waiting for it to get cleared, another car is struck by
lightning during an electrical storm
b. Even if the ultimate harm is foreseeable, liability for antecedent tortious conduct is superseded by the
intervention of unforeseeable criminal or intentionally tortious conduct
Intervening Criminal or Intentionally Tortious Conduct

A. It is unfair to hold the original actor responsible for the resulting harm if there was no opportunity to
anticipate or guard against such intervention of criminal or intentional conduct
B. If crimes occur a lot in that one particular place, the ∆ MAY be held liable b/c the harm is foreseeable
C. Common situations where a ∆ is likely to be found liable for harm caused by intervening criminal acts where
the ∆
a. Fails to perform a duty to protect the ∏ against criminal misconduct
b. Defeats the ∏’s efforts to achieve self-protection
c. Brings into association w/ the ∏ a person known to be likely to commit a crime
d. Fails to restrain a dangerous person over which it has custody
D. Spears v. Coffee – court found that a violent attack by one minor guest on another was so unforeseeable that
the owners of the home where the attack occurred could not be liable for alleged failure to protect the
injured guest from harm. The attacker’s intentional criminal act was found to be a superseding cause of the
victim’s injuries
Rescue Doctrine (to induce help, but not at all costs)

The Rescue Doctrine
Elements:
a. Imminent peril to the person
b. An act of intervention
c. Tortious conduct by the ∆, rather than an accident
The doctrine governs liability for losses subsequent to intervention.
Issues to be considered:
a. Superseding causation
b. Liability of rescuer to victim
c. Liability of creator of the peril to rescuer
d. Contributory negligence of rescuer
e. Liability of a 3rd party to rescuer
A. Policy
a. Induce help, but not at all costs
B. Participants
a. Typically, the cases involve 3 persons: the creator of the peril, the victim, and the rescuer, but the
doctrine may apply where the peril has been created by the “victim”
C. Courts are reluctant to find that a rescuer's confrontation of a known danger amounts to contributory
negligence, for alleged errors of judgment are to be weighed in view of the excitement and confusion of the
moment
a. Altamuro v. Milner Hotel, Inc. - The decedent's re entry into a burning hotel in which he had previously
performed two successful rescue missions did not constitute contributory negligence, even though
CLZ Tort 2010 51
firemen had ordered all civilians out of the building.
D. Normal rescue efforts don’t break the chain of proximate causation b/w the tortfeasor who created the peril
and the victim, even if negligence on the part of the rescuer aggravates the ∏’s injuries
E. An injured rescuer’s claim against the creator of the peril cannot usually be frustrated by claims of lack of
proximate causation
F. Some courts hold the rescuer to a degree of negligence and other courts to a degree of recklessness
a. EXCEPTION: professional rescuers cannot ordinarily avail themselves of the rescue doctrine and are
subject to special rules
Intervening Acts of the Victim

A. A tortfeasor may be liable for injuries sustained by another in an effort to escape threatened harm, and even
if the victim, as a result of fright, frenzy, or panic adds to the danger by an act which in a later serene
moment may seem to have been unwise
B. If the risk of suicide is unforeseeable to the ∆, most states will hold that the death was not proximately
caused by the ∆’s negligence
Limits on Foreseeability
A. An attorney is not required to protect a client against suicidal tendencies b/c lawyers have no special
expertise in identifying or treating that kind of problem
a. This shows that an intervening action may still be considered a superseding cause, even though it is
foreseeable
B. A doctor would be held liable if a patient commits suicide b/c they are qualified to make that distinction
Superseding Causation and Comparative Principles

A. Rule: Superseding causation is an all or nothing determination, which, if satisfied, totally overlooks the
negligence of one fo the parties to an accident
B. The adoption of comparative fault did NOT abolish the doctrine of superseding causation
§5. SHIFTING RESPONSIBILITY

A. Once a ∆ has tortiously created a risk of harm to the ∏, it is irrelevant that a 3rd person fails to prevent the
harm
B. A determination may be made that all duty and responsibility for the prevention of the harm has passed to
the 3rd person
C. Relevant factors:
a. Lapse of time
b. K governing duty to act
c. Magnitude of threatened harm
d. Character and position of the 3rd party
i. Ability to act
ii. Knowledge of danger
e. Likelihood the 3rd party will act
i. Expense
ii. Inconvenience
iii. Insulation from liability
iv. Relationship to the ∏
D. Goar v. Village of Stephen - Duty of care was held to shift as a matter of law (contract between the
companies). An inspection of the wires would have revealed that the wires were rubbing together and
wearing through, but no inspection was ever made. Court held that circumstances as a matter of law shifted
the responsibility for preventing harm from the company to the village.
E. Bailey v. Lewis Farm, Inc. – a company that had allegedly been negligent in its maintenance of a tractor-
trailer’s axle was sued for injuries that resulted when the wheels detached and struck the ∏’s vehicle about a
year after the tractor-trailer was sold to another party. The court held that the sale did not shift responsibility
to prevent harm solely to the buyer of the tractor-trailer. Moreover, the failure of the buyer to properly
maintain the vehicle did not absolve the seller of liability for injuries caused by a dangerous condition, which
its negligence allegedly created. A judgment dismissing the claim against the seller of the tractor-trailer was
reversed, and the case was remanded for further proceedings.
Limited Duty
CLZ Tort 2010 52
A. Failure to Act
i.
CLZ Tort 2010 53

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TORTS I OUTLINE_ FALL 2009, PROF.

CHAPTER 1. OVERVIEW OF MODERN TORT LIABILITY

CHAPTER 2. BASIC INTENTIONAL TORTS

I. THE CONCEPT OF INTENT

Intent and Mistake

CLZ Tort 2010 1

Liability for the Torts of Minor Children ----- PG 54 of txbook

CLZ Tort 2010 2

CLZ Tort 2010 3

A. Elements for a prima facie case:

CLZ Tort 2010 4

CLZ Tort 2010 5

III. INTENTIONAL OR RECKLESS INFLICTION OF SEVERE EMOTIONAL DISTRESS

(2) By extreme and

(3) Casual Link

C. Avenues for Recovery

IV. FALSE IMPRISONMENT

CLZ Tort 2010 7

CLZ Tort 2010 8

Shopkeepers privilage 1. a shoekeeper may temporarily detain

V. TRESPASS TO LAND – actual land property

CLZ Tort 2010 9

CLZ Tort 2010 10

A dispossession may be committed by intentionally

(1) he dispossesses the other of the chattel, or

CLZ Tort 2010 11

CLZ Tort 2010 13

CHAPTER 3. DEFENSES AND PRIVILEGES

To be effective, consent must be

Consent intentionally procured by fraud is invalid.

CLZ Tort 2010 16

WHO? Anyone other than an aggressor

WHEN? Who anticipates immediate physical harm

HOW? May use reasonable force in self-defense

WHEN? Who believes force is necessary to protect another

HOW? May use reasonable force to do so

CLZ Tort 2010 17

HOW? May use reasonable, non-deadly force to defend property

CLZ Tort 2010 18

Recapture of Chattels – NOT TO BE CONFUSED w/ SHOPKEEPER’S PRIVILEGE!!!!

WHEN? Wrongfully dispossessed by fraud or force

§7 PRIVILEGE TO DETAIN FOR INVESTIGATION

a. A shopkeeper may temporarily detain

§8 PUBLIC AND PRIVATE NECESSITY

HOW? To use reasonable force

A. If the class to be protected is a substantial number of people

CLZ Tort 2010 20

HOW? To use reasonable force

§9 RECAPTURE OF GOODS ON THE LAND OF ANOTHER

CLZ Tort 2010 21

§10 RECAPTURE OF LAND

§11 UNLAWFUL CONDUCT

CLZ Tort 2010 22

A. Collateral Sources Rule- first step is to check if applies in your JxD

B. Avoidable Consequences Rule

Compensatory Damages - not Taxed

State Farm v Campbell

Reprehensibilty – Factors to considered.

CLZ Tort 2010 24