Gilbert Law Summaries On Torts (2008) 726 Pages

Torts
BY MARC A. FRANKLIN
Stanford University
W. JONATHAN CARDI
University of Kentucky
MICHAEL D. GREEN
Wake Forest University
Twenty-Fourth Edition
GILBERT LAW SUMMARIES

Board of Editors
RICHARD J. CONVISER
Professor of Law, IIT/Kent
MICHAEL R. ASIMOW
Professor of Law, U.C.L.A.
JOHN A. BAUMAN
Professor of Law, U.C.L.A.
PAUL D. CARRINGTON
Professor of Law, Duke University
JESSE H. CHOPER
Professor of Law, U.C. Berkeley
GEORGE E. DIX
Professor of Law, University
of Texas MELVIN A. EISENBERG

WILLIAM A. FLETCHER
MARC A. FRANKLIN
Professor of Law, Stanford University
EDWARD C. HALBACH, JR.

GEOFFREY C. HAZARD, JR.

of Pennsylvania STANLEY M. JOHANSON
of Texas THOMAS M. JORDE

HERMA HILL KAY
JAMES E. KRIER
of Michigan JOHN H. MCCORD
Professor of Law, University of Illinois
PAUL MARCUS
Professor of Law, College of William and Mary
RICHARD L. MARCUS
Professor of Law, U.C. Hastings
ROBERT H. MNOOKIN
Professor of Law, Harvard University
THOMAS D. MORGAN
Professor of Law, George Washington University
JARRET C. OELTJEN
Professor of Law, Florida State University
JAMES C. OLDHAM
Professor of Law, Georgetown University
ROGER C. PARK
Professor of Law, U.C. Hastings
WILLIAM A. REPPY, JR.
THOMAS D. ROWE, JR.
DOUGLAS J. WHALEY
Professor of Law, Ohio State University
CHARLES H. WHITEBREAD
Professor of Law, U.S.C.
KENNETH H. YORK
Professor of Law, Pepperdine University
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Summary of Contents
TORTS TEXT CORRELATION CHART

TORTS CAPSULE SUMMARY
GILBERT EXAM STRATEGIES
INTRODUCTION
I. INTENTIONAL TORTS
Key Exam Issues
A. Torts to the Person
1. Battery
2. Assault
3. False Imprisonment
4. Intentional Infliction of Emotional Distress
CHART: Torts to the Person—Comparison of Key Elements
B. Defenses and Privileged Invasions of Personal Interests
1. Consent
CHART: Approach to Determining Validity of Consent
2. Self-Defense
3. Defense of Third Persons
4. Defense of Land or Chattels
5. Force to Recover Possession of Land Wrongfully Withheld
6. Force to Effect Recapture of Chattels Wrongfully Withheld
7. Privilege of Arrest
CHART: Arrests Without an Arrest Warrant
8. Privilege of Discipline
CHART: Allowable Force in Defenses to Intentional Torts
C. Torts to Property
1. Trespass to Land
2. Trespass to Chattels
3. Conversion of Chattels
CHART: Acts of Conversion
CHART: Property Torts—Comparison of Key Elements
D. Defenses and Privileged Invasions of Land and Chattels
CHART: Privileged Invasions of Another’s Land and Chattels
II. NEGLIGENCE
Key Exam Issues
A. In General
B. Negligence (Based on the “Duty of Due Care”)
CHART: Variances in Standards of Negligence
CHART: Elements of Res Ipsa Loquitur
CHART: Comparison of Rules for Establishing Actual Cause
CHART: Recovery of Special (Economic) Damages
CHART: Recovery of General Damages
C. Special Duty Questions
CHART: Approach to Determining Duty to Aid Others in Peril
CHART: Liability of Principal for Agent’s Torts—An Approach
CHART: Failure to Control Third Parties—A Summary
CHART: Duty of Land Possessor to Those on Premises—Status Approach
CHART: Comparison of Emotional Distress Torts
D. Defenses to Negligence
CHART: Comparison of Negligence Defenses
E. Effect of Liability Insurance
III. STRICT LIABILITY

Key Exam Issues
A. In General
B. Animals
CHART: Personal Injuries from Animals—Strict Liability
C. Abnormally Dangerous Activities
D. Extent of Liability
E. Defenses
IV. PRODUCTS LIABILITY

Key Exam Issues
A. In General
CHART: Overview of Products Liability Theories
B. Liability Based on Intentional Acts
C. Liability Based on Negligence
D. Strict Liability in Tort
CHART: Tests for Design Defects—A Summary
CHART: Defects Creating Strict Liability—A Summary
CHART: When Product Is Defective—Examples
E. Liability Based on Breach of Warranty
CHART: Types of Warranties
V. NUISANCE
Key Exam Issues
A. In General
CHART: Approach to Determining Presence of a Private Nuisance
B. Plaintiff’s Interest
C. Defendant’s Conduct
D. Substantial and Unreasonable Harm to Plaintiff
E. Causation
F. Remedies
G. Defenses
VI. MISCELLANEOUS FACTORS AFFECTING RIGHT TO SUE

Key Exam Issues
A. Survival of Tort Actions
B. Wrongful Death
CHART: “True” Type Wrongful Death Actions
C. Injuries to Members of the Family
D. Tort Immunity
E. Release and Contribution Among Joint Tortfeasors
F. Indemnity
G. Statutes of Limitations
VII. STATUTORY CHANGES IN PERSONAL INJURY LAW

Key Exam Issues
A. Changes Targeting Specific Kinds of Tort Claims
B. Changes Affecting Tort Claims Generally
VIII. DEFAMATION
Key Exam Issues
A. In General
CHART: Approach to Common Law Defamation
B. Publication to a Third Party
C. Harm to Reputation
D. False Facts
E. Causation
F. Damages and Other Remedies
CHART: Categories of Slander Per Se
G. Defenses
CHART: Traditional Absolute and Conditional Privileges
H. Constitutional Privileges
CHART: Approach to Constitutional Defamation
CHART: Fault and Damages Rules in Constitutional Defamation Actions
IX. WRONGFUL INVASION OF PRIVACY

Key Exam Issues
A. Intrusions into Plaintiff’s Private Life or Affairs
B. Public Disclosure of Private Facts
C. Appropriation of Plaintiff’s Name or Likeness
D. Publicity Placing Plaintiff in a “False Light”
CHART: Four Categories of Privacy Torts—A Summary
E. Claims Involving Privacy of Third Persons
F. Important—Related Torts
X. OTHER TORTS
Key Exam Issues
A. Misrepresentation
CHART: When Plaintiff May Rely on Misrepresentations—A Summary
B. Injurious Falsehood
C. Interference with Economic Relations
D. Unjustifiable Litigation
REVIEW QUESTIONS AND ANSWERS

EXAM QUESTIONS AND ANSWERS
INDEX
i
Text Correlation Chart
ii
iii
iv
I
Capsule Summary
INTRODUCTION
Tort recovery is contingent upon two primary variables: the type of harm alleged by the
plaintiff (“P”) and the nature of the defendant’s (“D’s”) alleged conduct. Compensable
tortious harms are generally divided into personal injury, property damage, and (to a more
limited extent) emotional distress, invasion of intangible interests such as reputation and
privacy, and economic harm (i.e., financial loss). The nature of D’s conduct corresponds to
three main bases of liability—intent, negligence, and strict liability. The following summary
is keyed to these categories.
I. INTENTIONAL TORTS
A. TORTS TO THE PERSON

1. Battery §1
A prima facie case involves an act by D, with intent to inflict a harmful or offensive
touching, a harmful or offensive touching, and causation.
a. Act by D §2
The term “act” refers to volitional movement of D’s body. Unconscious acts are
not “volitional” (e.g., epileptic seizures, persons asleep), and neither are
instinctive actions (e.g., blinking). However, stretching out an arm to brace for a
fall is volitional. Note that persons not legally competent are capable of volitional
acts.
b. Intent §6
D must act with the intent to inflict a harmful or offensive touching. Intent is
determined by whether D acted with the desire to cause the touching or with the
belief that the touching was substantially certain to occur. P generally need not
prove D’s intent to offend or injure, merely that D intended a touching that might
be offensive or harmful. Intent is a subjective test. Note that although motives are
immaterial to establishing the prima facie case, if malice is present D may be
liable for punitive damages.
(1) Transferred intent §10
Under the transferred intent doctrine, if D acts intending to cause a battery,
assault, false imprisonment, trespass to land, or trespass to chattels, he will
be liable even if the particular harm or P is unexpected.
II
c. Harmful or offensive touching §11

The touching must involve contact with P’s person or something closely
associated with P (e.g., knocking P’s hat off her head). Touching is “harmful” if
it injures, disfigures, or impairs the body; it is “offensive” if it would offend a
reasonable person’s sense of dignity; a hypersensitive reaction is insufficient.
Note that P need not have knowledge of the touching at the time thereof.
d. Causation §17
D’s conduct must directly or indirectly bring about the injury. Setting in motion
the force that actually causes the touching suffices.
e. Damages §19
Actual damages are not required. Compensatory (e.g., pain and suffering, medical
bills, etc.) and punitive damages (if D acted maliciously) are recoverable.
However, punitive damages may be found to violate due process if: (i) there is a
large disparity between the compensatory award and the punitive award; (ii) the
punitive award is much more severe than the criminal or administrative penalties
that could have been imposed for D’s conduct; and (iii) D’s conduct was not
unduly reprehensible.
2. Assault §27
A prima facie case involves an act by D, with intent to cause apprehension of an
immediate harmful or offensive touching, apprehension, and causation.
a. Act by D §28
The “act” must be a volitional movement of the body. Words alone are ordinarily
insufficient except where surrounding circumstances force P to rely on mere
words (e.g., “Don’t turn around or I’ll shoot”).
b. Intent §32
Same as battery—i.e., intent to inflict a harmful or offensive touching or cause
apprehension of a harmful or offensive touching. The transferred intent doctrine
is applicable.
c. Apprehension §35
P must be placed in reasonable apprehension of an imminent harmful or
offensive touching of P’s (and not someone else’s) person and must be
subjectively aware of the threat at the time thereof.
(1) Source of threatened harm §41
D is liable if he arouses apprehension of harm from any source (e.g., “Duck!
X just threw a rock at you!”).
(2) Imminence of threatened harm §42
Threat of an imminent harmful or offensive touching is required. Thus,
words may negate the threat (e.g., where threat is of future harm). However,
a conditional threat may be an assault where D is not privileged to make the
threat (e.g., “Take back what you said or I’ll kill you”).
III
(3) Nature of P’s apprehension §47

P’s apprehension must be reasonable. Fear is not required; apparent ability
to inflict a touching suffices.
d. Causation §52
P’s apprehension must be legally caused by D’s act or something D set in motion
(same as battery).
e. Damages §53
Actual damages are not required. Compensatory and punitive damages are
recoverable (same as battery).
3. False Imprisonment §54
A prima facie case involves an act by D, with intent to confine P to a specific area, a
confinement, and causation.
a. Act by D §55
D’s act must be volitional, but words alone may suffice.
b. Intent §57
This is measured by the desire or belief in substantial certainty test (supra, §6)
—intent to confine is required.
c. Confinement §60
P must be restricted to a limited area without knowledge of reasonable means of
escape and must be aware of the confinement at the time thereof or else be
harmed by the confinement.
(1) Cause of confinement §65
This may be by:
(a) Physical force exercised against P or a member of P’s family;
(b) Threats of immediate harm to P, P’s property, or P’s family;
(c) Actual or apparent physical barriers to escape (includes refusing to
release P when under a duty to do so); or
(d) Assertion of legal authority and P’s submission thereto.
d. Causation §76
Confinement must be legally caused by D’s intentional act or a force set in
motion by D (same as battery).
e. Damages §77
Actual damages are not required. Compensatory and punitive damages are
recoverable (same as battery). P may also recover for injuries suffered in a
reasonable attempt to escape.
4. Intentional Infliction of Emotional Distress §79
A prima facie case involves extreme and outrageous conduct by D, with intent to
cause severe emotional distress, causation, and severe emotional distress.
a. Act by D §80
D’s act must be extreme and outrageous. Words alone may suffice, but
IV
simple insults are not actionable. The courts will consider the totality of the
circumstances.
(1) Exceptions §83
Common carriers and public utilities are held to a stricter standard; they may
be liable for insults not ordinarily actionable. Also, cases based on racial or
gender attacks or insults may be actionable under state or federal law even if
not amounting to a traditional tort.
(2) Extension—liability to third persons §85
D’s liability also includes emotional distress of members of the intended
victim’s family if their presence was known to D.
b. Intent §86
D must intend to cause severe emotional distress. However, reckless conduct
(i.e., where D disregards a high probability that his act will cause emotional
distress) also suffices, and intent is inferred where D knows P is particularly
sensitive. Note that the doctrine of transferred intent is not applicable here.
c. Causation §90
Under the early view, demonstrable physical injuries were required, but under the
modern approach, distress alone suffices—outrageousness of the conduct insures
reliability of the claim.
d. Severe emotional distress §92
The distress must be more than a reasonable person could be expected to endure.
However, D is liable for causing severe distress in a person with known
sensitivities even if a reasonable person would not have been so distressed.
e. Defenses §94
Common law defenses to other intentional torts are irrelevant here. However, the
First Amendment protections of free speech and free exercise of religion have
been permitted as defenses (e.g., gross insults aimed at public person may be
protected; church may denounce member without liability).
f. Damages §98
Compensatory and punitive damages are recoverable. (Some states bar punitive
damages generally; others do so where speech is involved).
B. DEFENSES AND PRIVILEGED INVASIONS OF PERSONAL INTERESTS

1. Consent §100
Most courts treat consent as an affirmative defense; a few require P to show lack of
consent as part of the prima facie case.
a. Types of consent §101
The basic types of consent are:
(1) Actual (express) consent;
(2) Apparent consent—what the reasonable person would infer from custom
or from P’s conduct; or
(3) Consent implied by law—if necessary to save a life or other important
interest and:
(a) P is unconscious or otherwise unable to consider the matter;
(b) An immediate decision is necessary;
(c) There is no reason to believe P would withhold consent if able; and
(d) A reasonable person in P’s position would consent.
b. When consent is not a defense
(1) Acts in excess of consent §105
If the invasion goes beyond the scope of consent, the consent is ineffective.
(2) Fraud §106
Consent is ineffective if procured by fraud (unless the fraud relates to a
collateral matter).
(3) Duress §108
Consent given under duress (physical force or threats) is ineffective.
(4) Mistake §109
P’s consent is ineffective if due to a mistake caused by or known to D.
Mistake may be one of two types:
(a) Mistake of law §110
A mistake of law caused by D renders P’s consent ineffective.
(b) Mistake of fact §111
If P fails to understand the nature or consequences of the invasion of
her person or property, her consent is ineffective.
1) Lack of consent in medical treatment §112
If a patient did not give consent to medical treatment, the doctor
may be liable for battery.
2) Lack of informed consent §113
If P alleges that she was not adequately informed of the risks and
benefits prior to surgery, the claim is usually treated as negligence,
not as an intentional tort.
(5) Incapacity to consent §114
Consent given by a person incapable of consenting (e.g., infant, mental
incompetent) is ineffective.
(6) Criminal acts §115
The majority holds consent to a criminal act ineffective if the act involves a
breach of the peace. The minority holds consent to a
VI
criminal act effective except where P is a member of a class protected by

statute.
2. Self-Defense
a. Nondeadly force §119
Nondeadly force may be used if D reasonably believed P was about to inflict
imminent bodily harm, and the force used was reasonably necessary to prevent
the harm. D is under no duty to retreat unless D recognizes that P acted
unintentionally or had mistaken D’s identity.
b. Deadly force §123
Deadly force may be used if D reasonably believed P was about to inflict death
or serious bodily harm. Under the majority view, there is no duty to retreat. The
minority view is contra if retreat is safe, unless: (i) D is in her own home, (ii)
retreating would endanger D or a third party, or (iii) D is attempting a valid arrest.
c. Threats of force §129
D is privileged to threaten greater force than she could actually use if such threats
would do no more than cause apprehension.
d. Limitations on right of self-defense §130
The right to self-defense is limited where:
(1) D knows the danger is terminated;
(2) D uses excessive force—this may give P the right to use force in self-
defense;
(3) P’s conduct is privileged; or
(4) D intentionally injures a third person (unintentional injuries create liability
only if D is negligent).
e. Reasonableness §136
This is tested objectively (reasonable person standard).
3. Defense of Third Persons §137
A person may be privileged to use deadly force to protect another only to the extent
the person defended would have been privileged to use deadly force under the
circumstances. The traditional view protects D only if the person protected is
actually privileged to defend herself. The modern view protects the actor’s
reasonable mistake.
a. Nondeadly force §142
D may not use deadly force to defend land or chattels. He may use nondeadly
force if:
(1) Intrusion by P is not privileged (or P led D to believe this);
(2) D reasonably believes force is necessary to prevent or terminate the
intrusion; and
(3) D, prior to the use of force, makes a demand that the intruder desist or
leave (unless the demand appears futile).
VII
b. Mechanical devices §143

Such devices may be used only where (i) reasonable and necessary, or
customary in the locale; and (ii) adequate warning is given or posted. If the
devices threaten death or serious bodily harm, intrusion must in fact constitute a
threat of death or serious bodily harm to D or D’s family.
c. Threats §145
The Second Restatement permits D to threaten greater force than he is actually
privileged to use, as long as such threats only cause apprehension.
5. Force to Recover Possession of Land Wrongfully Withheld §146
The majority view in such a case recognizes no privilege. The minority view permits
prompt and reasonable nondeadly force when dispossession is achieved by fraud,
force, duress, or without claim of right.
a. Tortious dispossessions §150
D is privileged to use reasonable nondeadly force to recapture chattels of which
he was tortiously dispossessed under the following conditions: (i) D is in fact
entitled to immediate possession of the chattel; (ii) demand for return has been
made by D and ignored, or the demand appears futile; (iii) D is in “fresh pursuit”
(i.e., D was diligent in discovering the loss and in his efforts to retake the chattel);
and (iv) recapture is effected from the dispossessor or a third party having
knowledge that the property was stolen, etc.
b. Other dispossessions §156
In cases of nontortious dispossession, there is no privilege to use force. But in
conditional sales contract situations where the buyer defaults, the seller may
repossess peacefully.
c. “Shopkeeper’s privilege” §158
In most states, a shopkeeper is privileged to detain temporarily for investigation
if: (i) there are reasonable grounds to suspect the person detained; (ii) detention
is on the store premises or in the immediate vicinity; (iii) only reasonable,
nondeadly force is used; and (iv) the detention is for only as long as is needed to
conduct a reasonable investigation.
a. Arrests for felonies without an arrest warrant §165
A police officer is privileged to arrest without an arrest warrant if there are
reasonable grounds to believe that a felony has been committed and this
particular person committed it. A private citizen is privileged to arrest without a
warrant only when a felony has in fact been committed and there are reasonable
grounds to believe this person committed it.
b. Arrests for misdemeanors without an arrest warrant §166
Under the general view, officers and private citizens in fresh pursuit are
VIII
privileged to arrest for a misdemeanor without a warrant if the misdemeanor was

a breach of the peace and committed in their presence.
The minority view permits the officer a reasonable mistake.
c. Arrests under a warrant §168
Such arrests are privileged if the warrant is “fair on its face” (i.e., free of defects
that a reasonable police officer would discover).
d. Amount of force privileged §171
Reasonable nondeadly force is permitted when making a misdemeanor arrest.
For felony arrests, the traditional view permits reasonable use of deadly force for
any felony, but the modern view limits such force to serious felonies (e.g., rape,
murder). In any case, where arrest is by the government (e.g., the police) the
Supreme Court has held that deadly force is reasonable only if necessary to
prevent a felon’s escape when there is cause to believe that the felon or suspect
poses a significant threat of death or serious injury.
e. Right to invade land §178
This right is included within the privilege of arrest.
f. Effect of D’s misconduct following arrest §179
If the initial arrest was privileged but the arresting party subsequently uses
excessive force or unreasonably delays arraignment, the modern view is that D is
liable only for harm caused by subsequent misconduct.
g. Resisting arrest §180
Common law allowed reasonable nondeadly force to resist an unlawful arrest.
There is no such privilege under the modern trend, and resisting is itself a crime
in some states.
8. Privilege of Discipline §181
Parents, teachers, and military supervisors may use reasonable force to preserve
order. Note, however, that this common law rule has been rejected by some
legislatures and courts in cases of corporal punishment.
C. TORTS TO PROPERTY
1. Trespass to Land §182
A prima facie case involves P in possession of land or entitled thereto, an act by D
with intent to invade the land, an intrusion upon the land, and causation.
a. Act by D §183
D’s act must be volitional (same as battery).
b. Intent §184
D must intend to intrude on the land or know with substantial certainty that his
actions will cause entry, but he need not know the land belongs to another. The
transferred intent doctrine applies.
(1) Distinguish—negligence §185
D is liable for negligent entry if damages are shown.
(2) Distinguish—strict liability §§186
Certain invasions are actionable on a strict liability theory.
IX
c. Intrusion on land §188

D must personally enter the land or cause entry by a third person or object.
Failure to leave or remove an object after consent is withdrawn is also sufficient.
An intrusion of a nonphysical nature (e.g., smoke, vibrations, etc.) is treated as a
nuisance.
d. P in possession or entitled to immediate possession §190
Any possession (even wrongful possession) is sufficient. However, if no one is in
actual possession, a person with the right to immediate possession may maintain
the action. Note, however, that although a tenant has possession during a lease,
courts usually permit an action by the landlord or tenant, but each can recover
only for damage to his own interest.
(1) Airspace above land §196
There is no right to possession of airspace above the normal minimum flight
altitude. Below the minimum flight altitude, modern authority limits
possession to the “immediate reaches” of the land. (Note: There may be a
possibility of a nuisance action even though there is no actionable trespass).
e. Causation §202
The invasion must be legally caused by D’s act or by a force set in motion
thereby. D is liable for any harm caused, even if it was not foreseeable (e.g.,
trespasser can be liable for causing owner to have heart attack).
f. Damages §204
Actual damages generally are not required.
2. Trespass to Chattels §206
A prima facie case involves P in possession of a chattel or entitled thereto, an act by
D with intent to invade a chattel interest, an invasion of such interest, and causation.
(Regarding damages, see below).
a. Act by D §207
D’s act must be a volitional movement resulting in dispossession of or harm to
P’s chattel.
b. Intent §208
D must have intended to deal with the chattel in the manner in which he did so.
D’s mistaken belief that he had a right to do so is no defense. The transferred
intent doctrine applies.
c. Invasion of chattel interest §210
This can be by “dispossession” (assertion of proprietary interest in chattel, e.g.,
theft) or “intermeddling” (a lesser interference, e.g., throwing a stone at P’s
car).
This is the same as in a trespass to land.
e. Causation §214
The invasion must have been legally caused by D’s intentional act or a force set
in motion by D.
f. Damages §215
For dispossession, P can sue for loss of use (e.g., rental value) or for conversion
of chattels. If there is only an intermeddling, there is no action unless there is
actual damage to the chattel.
3. Conversion of Chattels §216
A prima facie case involves P in possession or entitled thereto, an act by D with
intent to substantially invade a chattel interest, a substantial invasion of such interest,
and causation.
a. Act by D §217
D’s act must be a volitional movement that results in a substantial interference
with another’s possession of her chattels.
b. Intent §218
D must have intended to deal with the chattel in the manner in which he actually
did deal with it.
c. Substantial invasion of chattel interest §219
This can be accomplished by any of the following: (i) substantial dispossession
(e.g., D takes chattel or bars possessor’s access without consent); (ii) destruction
or material alteration of chattel; (iii) unauthorized use by bailee (use must
amount to material breach of authority); (iv) buying or receiving stolen
property where D intended to acquire ownership rights (good faith is irrelevant);
(v) selling or disposing of stolen property; (vi) misdelivering a chattel, even by
innocent mistake; or (vii) refusing to surrender chattel on demand (but carrier
or bailee is privileged to make a qualified refusal to deliver for the purpose of
investigating ownership).
Same as in preceding sections.
e. Causation §231
Same as in preceding sections.
f. Remedies §232
If “dispossession,” P has a choice of actions:
(1) Replevin, detinue, or claim and delivery §233
P may obtain return of the chattel and collect damages sustained during its
detention.
(2) Forced sale damages §234
P may recover the value of the chattel plus damages for detention (i.e.,
“forced sale” of chattel to D).
(a) Effect of offer to return §236
D’s prompt offer to return mitigates damages if D acquired the chattel
in good faith and did not affect its value or condition. If P accepts D’s
offer, P no longer has an action for conversion but only for trespass to
chattels.
D. DEFENSES AND PRIVILEGED INVASIONS OF LAND AND CHATTELS
XI
1. Consent §237
P’s valid consent (expressly or by conduct) to the invasion is a defense.
2. Privileged Invasion of Another’s Land to Reclaim Chattels §238
The scope of the privilege depends on where fault lies for the presence of D’s
chattels on P’s land.
a. Landowner at fault §239
If the landowner is at fault, D has a complete privilege to enter to retake his
chattels after demand (unless demand would be futile or would subject the
chattel to harm). D is not liable for damage to P’s land if D acted reasonably.
However, D cannot enter a building other than that in which his chattels are kept.
If P resists, D may use reasonable, nondeadly force subject to the same
conditions attached to the recapture of chattels defense.
b. Chattel owner at fault §245
If the chattel owner is at fault, D has no privilege. Instead, he must bring an
action for replevin, detinue, etc.
c. Act of God §246
If an act of God (e.g., storm) causes chattels to be on another’s land, D has an
incomplete privilege (i.e., is liable for damages caused in process of recapture
but not for mere trespass). However, if the underlying causal factor is D’s
negligence (e.g., failure to secure chattels), he has no privilege.
d. Third party at fault §250
If chattels are on land because of a third party’s act, D has an incomplete
privilege where the landowner is unaware of the tortious dispossession.
e. Limitation §251
In all cases, D has no privilege if D is not in fact entitled to possession of the
chattel; mistake is irrelevant.
3. Privilege to Exclude or Evict Trespassing Chattels of Another §252
D is completely privileged to use reasonable force to exclude chattels of another
where reasonably believed to be necessary to protect D’s interests or chattels (e.g.,
D may shoot neighbor’s dog in D’s chicken coop). Reasonableness is tested by the
need for immediate action, whether the force is excessive, and the comparative
values of the property.
4. Privileged Invasion of Another’s Land or Chattels as a Public Necessity
a. Averting public disaster §254
There is a complete privilege to enter land or interfere with a chattel if it
reasonably appears necessary to avert a public disaster. Thus, D can break and
enter a dwelling and use whatever force on the property owner is reasonably
necessary to effect the privilege.
b. Detouring around obstructed highway §258
A traveler on a public road has an incomplete privilege to enter neighboring lands
where the road reasonably appears impassable—unless obstruction is the
traveler’s fault.
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c. Media §262
The First Amendment does not give the media a privilege to enter private land
whenever they seek information—even important information.
5. Privileged Invasion of Another’s Land or Chattels as a Private
Necessity §263
There is a privilege to enter land or interfere with chattels where it appears
reasonably necessary to protect any person from death or serious harm or to protect
land or chattels from injury. The harm prevented must exceed the harm caused by
the invasion. The privilege holder may break and enter dwellings and use reasonable,
nondeadly force, but is liable for resulting damages. The privilege supersedes the
landowner’s privilege to exclude trespassers.
6. Privileged Invasion of Land or Chattels to Abate a Nuisance §268
An owner or possessor of land may, after demand to abate, invade property or
chattels of another to abate a nuisance. The privilege is complete, but D must enter
at a reasonable time and use only reasonable force (force to person not allowed).
a. Distinguish—public nuisance §273
There is no privilege for abatement of a public nuisance unless the injury is
“peculiar in kind.”
7. Effect of D’s Misconduct §274
There is no privilege if D did not act “reasonably” while exercising the privilege. Note
that if D’s entry is proper initially but he subsequently acts improperly, D is liable for
the subsequent misconduct but not for the initial intrusion.
II. NEGLIGENCE
A. IN GENERAL §276
Negligence, the second broad category of tort liability, imposes liability for results that
were not intended by D. D is at fault for failing to perform some legal duty.
B. NEGLIGENCE (BASED ON THE “DUTY OF DUE CARE”) §278

A prima facie case involves an act or omission to act that breaches a duty of care and is
the actual and proximate cause of P’s injuries.
1. Act or Actionable Omission by D §279
This refers to a volitional act or an omission when under an affirmative duty to act.
2. Duty of Due Care §280
Duty is determined by the court and requires a two-step inquiry: (i) whether D owed
a duty of care, and if so, (ii) what the scope of that duty is.
a. Default duty to act as a “reasonable person” would §281
Where D’s conduct creates a risk of physical harm, she owes a duty to act as a
reasonable person ought to under the same or similar circumstances.
(1) Objective test §282
The test is objective; D’s subjective good faith belief is immaterial.
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(2) Standard remains same under all circumstances §284

The circumstances dictate the care required (e.g., “reasonable person” would
act differently in emergency). However, the standard never varies.
b. Variances in the generalized standard of due care §289
The reasonable person standard applies to all persons.
(1) Common carriers §290
Historically, courts held common carriers to a higher standard, but modern
courts are moving toward the reasonable person standard.
(2) Children §291
Minors are held to the standard of care that would be expected from a child
of like age, intelligence, and experience. They may be held to an adult
standard when they engage in a dangerous adult activity (e.g., driving a car).
(3) Persons with physical disability §295
Such persons are held to the standard of the reasonable person with that
disability. Thus, limitations in ability may require exercise of greater care.
Compare: Those voluntarily intoxicated are held to the standard of a sober
person.
(4) Adults with mental deficiency §299
There is no allowance for mental disability in part because of the fear of
fraud and in part because of the difficulty in applying a reduced standard.
(5) Special knowledge and skills §301
Those engaged in a profession or trade are held to the standard of care
exercised by similar professionals in the same or similar communities.
(a) Medical profession §305
Some courts held doctors to the standard of doctors in the “same”
community. The modern trend expands the standard to “similar”
communities. National standards may be imposed for nationally
certified medical specialists. P must establish the particular standard for
medical care, and generally presents it by expert testimony.
1) Informed consent §311
Doctors have a duty to disclose relevant information about benefits
and risks, alternatives, etc., to a patient. The courts are split on
whether the standard is the level of disclosure customary in the
medical profession or that required based on what a reasonable
doctor would recognize as material to the patient’s decision. There
are exceptions where there is an emergency or where disclosure
would be detrimental to the patient’s health, and a doctor does not
need to disclose his inexperience.
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c. The unforeseeable P—to whom is the duty of care owed? §320

If a reasonable person would not have foreseen injury to anyone from D’s
actions, most courts hold that no duty is owed to unexpectedly injured persons.
However, views differ when D could have reasonably foreseen danger to
someone, but whether injury to the particular P was foreseeable is questionable.
(1) Broad (Andrews) view §321
The broad view is that D’s duty of due care is owed to anyone in the world
injured as a result of D’s breach of duty, leaving the foreseeability of a
particular P a matter to be determined in the context of proximate cause
(Palsgraf dissent).
(2) Narrow (Cardozo) view §322
Under the narrow view, there is a duty of due care owed only to a
“foreseeable P” or class of persons in the “zone of danger” (Palsgraf
majority).
(3) Judge vs. jury §326
Justice Cardozo felt that judges ought to determine P foreseeability, whereas
Justice Andrews wanted to leave such questions to the jury as a matter of
proximate cause.
(4) Application—duty to rescuers §327
The duty of due care extends to persons injured while making an attempt to
rescue the imperiled person. The same result applies where the rescuer
injures a third person; i.e., D is liable. However, the original D will not be
liable if the rescue attempt was foolhardy under the circumstances.
d. Limitations on duty §333
Even if D’s actions created a risk of harm, courts sometimes analyze the facts of
a case and its policy implications to determine whether and to what extent to
impose a duty. Some courts limit a D’s duty due to a consideration of the
closeness of the connection between D’s conduct and P’s injury, D’s moral
blameworthiness for her conduct, whether imposing liability will further the policy
of preventing future harm, the extent of the burden imposed and its consequences
on the community, etc. Courts also refuse to impose a duty, despite the clear
creation of a risk, in the face of special problems of principle or policy.
e. The line between act and omission §339
Where P is injured as a result of D’s negligent action (misfeasance), a duty of
reasonable care exists. But where P’s injury results from D’s negligent failure to
act (nonfeasance), no duty exists absent a special affirmative duty (see infra,
§§546 et seq.).
(1) Misfeasance or nonfeasance? §341
Courts sometimes find the following situations difficult to characterize: (i)
negligent entrustment, (ii) negligent/nonnegligent creation of risk, (iii)
voluntary undertaking, (iv) negligent misrepresentation, and (v) encouraging
dangerous acts.
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3. Breach of Duty §347

Conduct that exposes others to an unreasonable risk of harm (i.e., conduct falling
short of the duty owed) is a breach of duty. A finding of breach includes
determination of (i) what in fact happened, and (ii) whether those facts show D acted
unreasonably.
a. Proving what actually happened §348
This may be shown by direct evidence or circumstantial evidence.
b. Determining whether conduct proved is unreasonable §352
Whether D acted reasonably under the circumstances is generally a question for
the jury. Some courts indicate that this analysis requires a balancing of the
foreseeable severity of harm to P against the foreseeable social value of D’s
conduct. D’s conduct is unreasonable if the magnitude of risk outweighs the
benefit. Judge Learned Hand’s formula for this analysis is: Breach = Probability ×
Loss > Burden on D of taking the risk.
c. Judge vs. jury §360
A court’s finding in favor of the nonmoving party on a motion for summary
judgment creates “mini rules” regarding what conduct is reasonable or
unreasonable. Thus, leaving the decision to the jury avoids unjust future results.
d. Res ipsa loquitur (“the thing speaks for itself”) §363
Occurrence of a particular harm may tend to establish what happened and that it
was through D’s fault.
(1) Essential elements §364
Three elements must be established:
(a) Accident must be of a type that normally does not occur absent
someone’s negligence §365
This is most often applied to commonplace and ordinarily safe activities
(e.g., bleachers at a ball field do not ordinarily collapse absent
negligence); the ultimate issue is one of probabilities.
(b) Negligence attributable to D §369
Some courts require a showing that the instrumentality causing injury
was under D’s “exclusive control.” The better view questions whether
the injury was one that D owed a duty to guard against.
1) “Joint control” or “concerted action” theories of
control §373
Some courts find “exclusive control” in a group of physicians and
nurses where each had contact with an unconscious patient who is
injured (Ybarra case).
(c) Neither P nor a third party contributed to or caused P’s
injuries §376
No inference arises if it appears that P’s own conduct (or acts of a third
person) was the likeliest cause of the accident.
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(d) Third Restatement’s single-element approach §378

The Third Restatement adopts only the first element above because
“exclusive control” and “no P contribution” are merely used to
determine that D’s negligence likely caused P’s injury.
(2) Other factors affecting use of res ipsa loquitur §379
Most courts hold that if the above three elements are met, the doctrine
applies even if D cannot add any evidence on the issue of what happened.
(3) Effect of establishing res ipsa loquitur §382
Most courts treat res ipsa loquitur as giving rise to a permissible inference of
negligence. Other courts give it the status of a rebuttable presumption; still
others classify it as a presumption that can be dispelled by any
counterevidence.
e. Effect of custom and statutes §385
Safety-related statutes and customs may be offered as some, but not conclusive,
evidence of D’s adherence to or departure from the reasonable person standard.
(1) How custom established §386
For a custom to be relevant, its purpose must be to avoid the type of harm P
suffered. If D is a member of the community in which the relevant custom is
practiced, D will be charged with knowledge of it.
f. Criminal statutes and breach—“negligence per se” §396
If a common law duty is already owed and a criminal statute provides that
specific conduct breaches the duty, courts may use the criminal statute to
establish breach. In such situations, breach of the statute constitutes negligence
per se.
(1) Requirements for “negligence per se” §398
For a criminal statute to constitute breach for purposes of a civil suit, the
following requirements must be met:
(a) Statutory duty is clear;
(b) Statutory purpose was to protect a class of persons of which P is a
member from the type of injury suffered; and
(c) Violation was unexcused. Statute cannot be used to establish
negligence per se if D had a legally acceptable excuse for its violation
(e.g., D is physically disabled or incapacitated, it was safer under the
circumstances not to comply, etc.).
(2) Effect of violation of statute
(a) Unexcused violations §408
If there is no excuse, the majority treats the violation as negligence per
se. The minority views treat a violation as a rebuttable presumption or
evidence only.
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(b) Excuse offered §412

If an excuse is offered, the majority defers to the judge’s decision on
the validity of the excuse; there is negligence per se if the excuse is
invalid. If crucial facts are disputed, the jury will determine these. The
minority views treat a violation as a rebuttable presumption or evidence
only.
4. Actual Cause (“Cause in Fact”) §415
D’s negligent conduct must be the cause in fact of P’s injuries; i.e., P would not have
been injured but for D’s negligent conduct.
a. Concurrent liability rule §418
Where separate negligent acts of D and X concur and P would not have been
injured but for the concurrence, both D and X are actual causes.
(1) Distinguish—jointly engaged tortfeasors §419
If several Ds jointly engage in a course of negligent conduct (e.g.,
participants in a drag race), each is liable even though only one of them
actually inflicted the injury. But note that many courts have limited or
abolished this rule.
(2) Successive tortfeasors §420
When successive acts of independent tortfeasors produce harm that is
difficult to apportion, the tortfeasors must try to disprove their responsibility
for the injury.
b. Multiple sufficient causes—“substantial factor” rule §421
If either one of two acts was sufficient to cause the injury, both actors are liable if
each person’s conduct was a substantial factor (e.g., two negligent motorcyclists
simultaneously pass P’s horse, causing it to run away).
c. Problem of alternative liability §423
Where it is not clear which of several negligent Ds caused P’s injury, some courts
shift the burden to each D to prove he was not the cause (Summers v. Tice).
(1) Market share liability §427
Where a specific manufacturer of the DES drug cannot be identified, some
courts allow P to recover from all manufacturers (but courts vary as to
whether, or how, a particular D can be relieved from a share of liability).
Note that courts have been reluctant to use market share liability in cases not
involving DES.
d. Risk of future harm §433
If P is more likely to suffer a future harm as the result of the present injury
caused by D’s negligence, the majority allows recovery. The minority views
permit delayed or partial recovery.
e. Loss of chance §436
Traditionally, P could not recover for such loss unless she could prove she was
more likely than not to have received something. However, in medical cases some
courts allow suits for loss of recovery chances that
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are less than 50%, and damages for emotional distress can be awarded if physical
injury is present.
f. Where D’s negligence has deprived P of proof §440
In such a case, the burden may shift to D to show that he was not the cause.
5. Proximate Cause (“Scope of Liability”) §442
Proximate cause is actually a policy decision as to who should bear the loss for
unexpected injuries or for expected injuries caused in unexpected ways.
a. Basic tests
(1) Foreseeability test §445
Proximate cause exists if the type, extent, and manner of injury to the
particular P were the foreseeable result of D’s negligent conduct. This is the
most commonly used approach.
(2) Directness/remoteness test §446
Proximate cause exists for all harm (regardless of how unforeseeable) that is
a direct result of D’s negligent conduct as long as it is not too remote.
(3) Risk rule §447
Proximate cause exists if P’s harm is within the scope of the risks that
made D’s conduct negligent. This approach is gaining ground.
(4) Substantial factor test §448
Proximate cause exists if D’s conduct was a more (or the most) substantial
factor in causing P’s harm than other factors.
(5) Andrews factors §449
Establishing proximate cause requires a consideration of all of the above
factors.
b. Direct vs. indirect causation §453
Direct causation means that there were no intervening forces operating between
D’s conduct and P’s injury. Indirect causation means that an intervening force
extended the result of D’s negligence or combined with D’s act to produce P’s
injury.
(1) Intervening act §455
This can be an “act of God,” act of a third person, or act of an animal (if P’s
own conduct contributed to her injury, it will be analyzed under a different
doctrine—contributory negligence or assumption of the risk, infra).
“Intervening act” does not include a force set in motion by D, a preexisting
condition, or a third person’s omission to act.
c. Direct causation §461
If there are no intervening acts, the case is one of direct causation and D will be
deemed the proximate cause of most foreseeable results.
(1) Exceptions §464
Public policy may limit liability. Example: Where D fails to control a
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flame in a populated area, New York courts hold that expansion of the fire
beyond the first building is not foreseeable. Also, some courts hold that a
highly extraordinary chain of events excuses D from liability. Other courts
following the risk rule impose liability as long as the result is foreseeable.
(2) Unforeseeable results (“set stage”) §467
Courts are split where direct causation yields an unforeseeable type of injury
(Polemis view—D liable for all direct consequences vs. Wagon Mound
majority view—unfair to hold D liable for unforeseeable result). All courts
hold D liable where unforeseeability goes only to the extent of injury (“thin-
skulled P” cases).
d. Indirect causation
(1) Rules focusing on nature of intervening act
(a) Dependent intervening force §478
This is a normal response to a situation created by D’s negligent act.
The response arises because of D’s act and is held to be foreseeable. D
is liable if the result is foreseeable.
1) Checking forces §479
Negligent treatment in response to D’s injury to P is deemed
foreseeable. (But reckless or intentional medical misconduct is not.)
2) Rescue forces §481
Infliction or aggravation of an injury by a rescuer is deemed
foreseeable.
3) Escape forces §482
Infliction or aggravation of injuries through escape efforts is deemed
foreseeable.
4) Caution §484
The crucial element in the above cases is that response be normal
(not highly unusual).
(b) Independent intervening force §485
This is an agency that operates upon the situation created by D’s act
but is not a response or reaction thereto (e.g., the act of a third
person, an animal, or nature). D remains liable for the foreseeable
results of his act unless the force is an unforeseeable intentionally
tortious or criminal act.
1) Intervening tortious or criminal acts §486
These terminate liability if the intervening acts are unforeseeable.
However, if D’s negligent conduct has increased the risk that
another’s negligent, intentional, or criminal act will occur, the
intervening force will be found to be foreseeable (e.g., landlord’s
failure to install locks on common areas of apartment building in
high-crime area).
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(2) Rules focusing on results of D’s negligence

(a) Foreseeable results produced by unforeseeable intervening
forces §488
Liability is generally imposed here, but some courts relieve D of liability
if the intervening act is the intentional or reckless conduct of a third
person; the apparent guideline is moral responsibility.
1) Acts of God §489
These will not prevent liability where they lead to the result
threatened by D’s original negligence.
2) Distinguish—unforeseeable criminal or tortious
acts §490
Generally, a court will hold that the moral culpability of one who
intentionally or recklessly commits a harm overwhelms the moral
responsibility of a negligent D. Thus, unforeseeable intentional or
criminal acts are held by some courts to relieve D from liability, but
negligent conduct will not prevent liability unless “highly
extraordinary.”
a) Abnormal rescue attempts §493
Foolhardy rescues are deemed unforeseeable and thus cut off
liability even if they lead to foreseeable results.
3) Third person’s failure to prevent harm §494
This will not relieve D from liability unless so extraordinary as to
“neutralize” the original risk.
(b) Unforeseeable results produced by foreseeable intervening
forces §497
There is a split of authority, some courts holding D not liable for an
unforeseeable result, while other courts impose liability on the basis
that the intervening force was foreseeable.
(c) Unforeseeable results produced by unforeseeable intervening
forces §498
Ordinarily there is no liability—except common carriers may be held
liable for any loss due to delay in transit.
(d) Ultimate result depends on degree of foreseeability §500
Keep in mind that the ultimate decision on proximate cause depends on
the degree of emphasis a court places on foreseeability.
e. Unforeseeable P §501
The Cardozo approach rejects an unforeseeable P at the duty stage. The
Andrews view considers several factors, including P foreseeability, at the
causation stage (see supra, §449).
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6. Damages §510
Actual damages are required.
a. Types of damages recoverable
(1) “Special” damages §512
These include past, present, and future economic losses (e.g., medical bills,
loss of wages or profits, etc.). Future economic loss must be discounted to
present value, unlike awards for pain and suffering (below). Recently,
however, a few courts permit P to recover the full award, with no discount.
(2) “General” damages §522
These are deemed inherent in the injury itself—e.g., past, present, and
future pain and suffering, disfigurement, disability, etc.
(3) Punitive damages §529
These are not recoverable for negligence, but some states permit them for
“reckless” conduct (e.g., drunk driving).
b. “Avoidable consequences” rule §531
Any additional damages caused by P’s failure to act reasonably in minimizing
loss are not recoverable (e.g., unreasonable refusal to submit to medical care).
(1) Anticipatory avoidable consequences §534
This means unreasonable behavior prior to an accident (e.g., a few courts
hold that the failure to wear safety belts may reduce damages).
c. “Collateral sources” rule §539
There is no deduction against P’s recovery for benefits received from sources
collateral to the tortfeasor (e.g., victim’s insurance benefits, Social Security
disability compensation). However, an insurance company usually has
subrogation rights (automatic assignment of P’s claim against D).
C. SPECIAL DUTY QUESTIONS

1. Duties and Breach Measured by Statute
a. Nature of statute
(1) Civil statutes §546
If a statute governs conduct and provides a civil remedy for violations,
common law negligence actions are not needed; the statute is used.
(2) Criminal statutes and duty §547
If a criminal statute regulates conduct, the courts use the statute to determine
whether D breached his common law duty of care. If there was no
preexisting common law duty with regard to the conduct, courts are reluctant
to create a new duty.
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b. Means by which statute gives rise to tort duty §548

A statute may give rise to a tort duty by expressly or impliedly authorizing a
private right of action (“statutory tort”) or by supplying the reason for a court to
impose a common law tort duty.
2. Duty to Aid Others in Emergency §551
There is no duty at common law to warn, protect, or rescue a stranger where D is
not at fault.
a. Duty owed where special factors present §552
The law may impose a duty under certain circumstances:
(1) Duty to aid one with whom D is in a special relationship (e.g., parent-
child, employer-employee). §553
(2) Duty to aid if P’s injury is caused by D. The modern trend holds D to
same duty even where D innocently caused P’s peril. §554
(3) Statutes may impose a duty. For example, it may be a crime for a driver
not to aid one involved in an accident with his car, even though the driver
was not at fault. §556
(4) Duty where D has a special relationship to the harmer (e.g.,
psychotherapist-patient). This may impose a duty to use due care to avoid
the harm. §557
b. Duty owed where D undertakes to aid P (“Good Samaritan
obligation”) §560
If D voluntarily undertakes to aid P, D must exercise due care. D can abandon
her efforts, but the condition in which she may leave P varies among the states,
with some requiring that P be left in no worse condition, others in no comparable
peril, and still others in no imminent peril of serious bodily harm. Many states
exempt physicians rendering aid in an emergency from negligence liability.
3. Affirmative Duty to Prevent Harm §567
Courts increasingly find a duty of care owed by Ds who share a special relationship
with P to prevent harm inflicted by another actor (e.g., innkeeper-guest, school
district-pupil), but generally government does not owe a duty to protect any
particular person and motorists do not owe a duty to protect others from harm by
third parties.
4. Duty to Perform Promises—Nonfeasance vs. Misfeasance
a. Gratuitous promises §572
Generally, there is no tort liability for failure to perform a noncontractual promise
because tort liability can be predicated only on misfeasance. However, once D
embarks on performance, she must exercise reasonable care.
(1) Minority view §574
The minority hold D liable where she knew or should have known that P
was refraining from obtaining other necessary assistance in reliance on D’s
promise.
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b. Contractual promises §575

Rules for gratuitous promises (above) ordinarily apply in contractual situations as
well. Once D undertakes performance, failure to use due care may be both a
breach of contract and an actionable tort. D may be liable to third parties for
misfeasance if the harm is foreseeable.
5. Duty Owed by Common Carrier §582
Modern authorities impose only the general duty of care on common carriers.
However, older courts held that one charged with the safety of another person, or
another’s property, must exercise a high amount of care.
a. “Highest degree of care” §583
Common carriers must always choose a course of conduct least likely to expose
passengers to harm. Moreover, carrier employees have an affirmative duty to aid
passengers in distress.
b. Distinguish—liability of auto driver to “guest” or “passenger”
(1) Common law rule §588
A driver must exercise due care to warn any rider of known dangers not
reasonably apparent and must use due care in operating the car.
(2) “Guest statutes” §589
A few jurisdictions hold a driver liable to a guest only for “wanton” or
“gross” misconduct. A rider is not a “guest” if payment is made that serves
as a motivating influence for the driver’s furnishing the ride. Example:
Sharing of expenses may qualify the rider for “passenger,” not “guest,”
status.
6. Duty to Control Third Persons §591
D may be liable for failure to control third persons over whom she had the power of
control.
a. Bailment cases §593
The owner of bailed chattel is liable for failure to exercise due care to prevent the
bailee’s tortious acts committed in her presence. Also the owner is liable for
failure to use due care in selecting the bailee.
(1) Vicarious liability §601
Even though not negligent herself, the owner of a car may be vicariously
liable for the driver’s negligence under the “family purpose doctrine” or
“permissive use statutes.”
(2) Products liability §604
A bailor may also be responsible for injury caused by defective chattel. (See
“Products Liability,” infra, §§925 et seq.)
b. Master-servant cases §605
An employer is directly liable for failure to prevent her employee’s tortious acts
committed in her presence and for failure to exercise due care in hiring a reliable
employee, training the employee, or supervising the employee.
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(1) Doctrine of respondeat superior—vicarious liability §609

An employer is vicariously liable for tortious acts committed by an employee
within the scope of employment. Note that intentional torts often are held to
be outside the scope of employment unless they are committed in
furtherance of the employer’s business (e.g., injuries inflicted by a
bodyguard). Moreover, a company may not shield itself from liability for an
employee’s tortious conduct (e.g., drunk driving) with rules forbidding such
conduct. Note also that no vicarious liability exists unless it is first shown that
the employee in fact acted tortiously, but an employee’s immunity from
liability is immaterial.
c. Independent contractor cases §614
An employer who fails to use due care in selecting a competent independent
contractor may be directly liable for torts of that independent contractor.
(1) Vicarious liability §615
Vicarious liability can be imposed on an employer if the independent
contractor is an apparent or ostensible agent or is hired to perform
nondelegable duties (e.g., maintaining an automobile in safe condition,
keeping premises safe for business visitors) or an activity so intrinsically
dangerous that the employer should realize it involves a peculiar risk of
physical harm (e.g., blasting, use of fire to clear land).
(2) Contractor’s assumption of liability §626
This does not insulate the employer from liability to third persons, but it does
create rights of indemnification.
(3) Limitation—collateral negligence §627
The employer is not liable if the contractor’s negligence is deemed
“collateral” to the risk that gives rise to vicarious liability in the first place
(e.g., employer might be liable for injuries resulting from contractor’s
blasting, but not for injury that contractor negligently causes while driving to
the blast site).
d. Partners and joint venturers §628
One member of a joint enterprise is vicariously liable to outsiders for conduct of
other members within the scope of the enterprise if there is a mutual right to
control operation of the enterprise. Some jurisdictions also require a common
business purpose.
(1) Automobile trips §630
Some courts hold that a driver and rider who agree on an itinerary, to take
turns driving, and to split all costs are engaged in a joint enterprise, while
others hold that the mere sharing of expenses without a business purpose is
not enough.
e. Liability of parent for torts of child §633
Parents are not vicariously liable at common law (limited liability under some
modern statutes) for torts of their children, but may be liable
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for their own negligence where they: (i) fail to control the child’s acts committed
in their presence; (ii) fail to exercise reasonable care to protect against the
child’s known dangerous tendencies; (iii) fail to warn others of such tendencies;
(iv) fail to prevent the child’s foreseeable use of inherently dangerous
instrumentalities; or (v) negligently entrust chattels to the child.
f. Liability of tavernkeeper §636
A tavernkeeper has no liability at common law for consequences of a purchaser’s
intoxication.
(1) “Dram Shop Acts” §637
Such acts impose liability on commercial establishments in favor of third
persons injured by an intoxicated patron.
(2) Judicial rejection of common law rule §642
Even without a statute, some courts have found a tavernkeeper liable if risk
to third persons is foreseeable. If the patron is already intoxicated, furnishing
liquor may be a crime—possible “negligence per se.” Recovery is usually
limited to third parties. Social hosts are generally not liable except in cases
where liquor is served to minors.
(3) Distinguish—liability of tavernkeeper as land occupier §649
As a land occupier, a tavernkeeper owes a duty to prevent dangerous patrons
from injuring other patrons on the premises.
7. Duties Owed by Land Occupiers §650
A majority of states substitute a special duty of care for land occupiers in place of the
general duty rule.
a. “Land occupier” §651
This is a person in possession of the land (e.g., owner, tenant, adverse
possessor).
b. Duties owed to persons outside the land
(1) Natural conditions §653
At common law, there is no duty of care owed to persons outside the land
for natural conditions on the land, except a land occupier in an urban area
owes a duty to prevent native trees from creating an unreasonable risk of
harm to persons on the adjacent street. However, a large minority holds that
the occupier owes a duty of due care to protect those outside the land from
natural conditions on the land.
(2) Artificial conditions §656
At common law, there is no duty owed to persons outside the land for
artificial conditions on the land, with two exceptions:
(a) If a portion of a structure abuts adjacent land, there is a duty to
inspect and maintain it in a reasonably safe condition.
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(b) If the conditions “substantially adjoin” a public road, there is a duty

to protect users of the road from harm.
(3) Activities on land §659
There is a duty not to create an unreasonable risk of harm.
c. Duties owed to persons coming onto the land
(1) Ordinary trespassers §660
An “ordinary trespasser” is anyone coming onto the land without consent or
privilege. Generally, there is no duty to unknown trespassers, but if the
occupier knows or should know of a trespasser’s presence, there is a duty
to (i) warn of or make safe artificial conditions involving a risk of death or
serious bodily harm that the trespasser is unlikely to discover, and (ii) carry
on all activities involving any risk of harm. However, many states impose
on occupiers the same duty to known trespassers as they owe to licensees
(see infra, §692).
(2) Constant trespassers upon a limited area (habitual
intruders) §666
Generally, if a land occupier knows or has reason to know that persons are
habitually trespassing, there is a duty to warn of or make safe known
artificial conditions, and to carry on all activities, involving a risk of death
or serious bodily harm that are unlikely to be discovered. However, many
states impose on occupiers the same duty to habitual intruders as they owe
to licensees (see infra, §692).
(3) Child trespassers—“attractive nuisance doctrine” §674
A child trespasser is a child so immature as to be unable to recognize the
danger involved.
(a) Artificial conditions §677
Where the land occupier discovers children trespassing or is charged
with such knowledge, there is a duty owed to warn or protect them
from artificial conditions involving risk of death or serious bodily
harm, provided:
1) The place is one where children are known or likely to trespass;
2) The land occupier knows or has reason to know that dangerous
conditions exist;
3) The risk to children outweighs the utility to the land occupier and
the burden of eliminating the danger; and
4) The condition is such that children, because of their youth, do not
discover or realize danger is involved.
(b) Activities §683
An occupier’s duty regarding activities on the land depends on whether
the child is an undiscovered, discovered, or habitual trespasser (see
supra).
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(c) Child trespasser doctrine as defense to trespass §688

A few courts extend the doctrine to bar actions by land occupiers
against children for trespass.
(4) Licensees §689
This refers to persons coming onto the land for their own purposes with
express or implied permission of the land occupier (e.g., social guests,
salespeople, etc.).
(a) Duties owed §692
There is a duty to warn of or make safe natural or artificial
conditions, and to carry on all activities, involving any risk of harm
known to the land occupier and not obvious to a reasonable person,
including threats of harm by third parties already on the land. There is
no duty to inspect.
1) Warning §694
A land occupier may usually discharge the duty by posting effective
warning signs.
2) Knowledge of licensee’s presence §695
There is no duty to discover licensees, but a land occupier must
keep in mind the possibility of their presence and conduct himself
accordingly.
(5) Invitees §696
This refers to persons coming onto the land with the land occupier’s express
or implied permission for some purpose related to the activities or interests
of the land occupier. A “public invitee” enters land for the purpose for
which the land was held open to the public (e.g., library patron). A
“business invitee” enters primarily for business dealings with the land
occupier (e.g., store customer)—the entrant need only have a reasonable
belief business dealings would transpire.
(a) Caution—change of status §703
An invitee retains that status only if he remains on that part of the
premises to which he was invited.
(b) Duties owed §704
There is a duty owed to inspect and discover dangerous conditions and
activities and to warn thereof or make safe.
1) Warning enough? §705
Under the modern trend, a warning may not suffice if it would not
make the premises safe.
2) Safeguarding activities of third persons §707
There may also be a duty to warn or protect invitees from
foreseeable tortious or criminal acts of third persons.
XXVIII
3) Safeguarding chattels §710

There is a duty to inspect and make safe tools or equipment
supplied to an invitee.
(6) Public entrants §711
This refers to public employees entering land under legal privilege (e.g.,
firefighters, police officers, tax assessors, etc.). “Private persons” entering in
exercise of the privilege are deemed licensees. A public entrant is treated as
an invitee if entry involves business dealings with the land occupier or if on
business premises during normal business hours; otherwise a public entrant is
treated as a licensee.
(7) Recreational land §717
By statute in most states, landowners are protected against lawsuits of
persons injured while using the land for recreational purposes unless the
owner has engaged in willful or wanton conduct.
d. Alternative view §718
In about half the states, the duty of a land occupier generally is determined by the
reasonable person standard regardless of the entrant’s status; i.e., P’s status is
only one factor relevant to determining the “reasonableness” of D’s conduct.
Some states apply a separate standard when the entrant is a trespasser.
e. Open and obvious dangers §721
Courts are split on whether a land occupier owes a duty to protect against open
and obvious dangers, with some finding a duty to mitigate the risk and others
holding P comparatively negligent.
8. Duties Owed by Entrants on Another’s Land §722
Most courts apply a general standard of due care. The Second Restatement gives
land occupier status to those working for or under the land occupier’s orders.
9. Duties Owed by Lessors of Land
a. Duties owed to persons outside the land §725
For a reasonable time after a lessor transfers possession to a lessee, the lessor’s
duty of care to those outside the land continues. During this time, the lessor has a
duty to repair or warn the lessee of known dangerous artificial conditions or of
conditions that may become dangerous. The duty continues only until the lessee
has a reasonable opportunity to discover the condition and remedy it. But if the
lessor actively concealed the danger, the duty continues until the lessee actually
discovers and has time to remedy it.
b. Duties owed to lessee §733
There is a duty to repair or warn of known latent dangerous conditions. If the
condition is reasonably apparent, no duty is owed.
(1) Dangerous conditions arising after transfer §737
There is no duty with respect to conditions arising after the lease
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period begins except: (i) a lessor may be liable for making negligent repairs;
and (ii) under the modern trend, a lessor is liable in tort for failure to make
repairs covenanted in the lease.
c. Duties owed to third persons coming onto the land with lessee’s
consent §745
Generally, a lessor owes the same duty to a tenant’s visitors as is owed to the
tenant (see above).
d. Duties owed where lessor retains control of common areas §751
As to common areas (e.g., elevators, stairways, hallways), the lessor is regarded
as the land occupier—thus, there is a duty to discover and remedy dangerous
conditions. Moreover, several courts impose a duty to take reasonable
precautions against foreseeable criminal acts of third parties.
e. Duty owed where lessor has right to control dangerous activity or
condition created by tenant §753
If the lessor has actual knowledge of a danger plus the right to terminate it, there
is a duty to prevent injuries therefrom to third persons.
10. Duties Owed by Sellers of Land §754
Generally, no duty is owed to those injured on or outside the premises after
possession is transferred. However, (i) sellers must disclose known latent dangerous
conditions; and (ii) if the property contained an unreasonable risk of harm to
persons outside the premises, the seller is liable for a reasonable time after transfer.
Absent active concealment, the duty terminates when the buyer has had a reasonable
time to discover and repair.
11. Duties Owed by Bailors of Chattels §758
A duty is owed to all persons within the foreseeable scope of use of the bailed goods.
If the bailment is gratuitous, there is a duty to warn of known, concealed defects. If
the bailment is for hire, there is a duty to inspect and warn of defects. However,
warning might not discharge the duty to third persons.
12. Duties Relating to Emotional Distress
a. Duty owed §762
Under the early view, there is a duty to exercise due care not to subject others to
a risk of physical injury, through physical impact or threat thereof, that might
foreseeably result in emotional distress and consequent physical injuries. Most
courts have broadened the duty.
b. Actual or threatened physical impact §764
Under the early view, D must have subjected P to physical impact. Today, a
threat of impact (i.e., P is within the “zone of danger”) is sufficient.
(1) Exposure cases §767
Mere exposure to a toxic substance or infectious disease is not “impact”
unless P knows of the exposure and has a serious fear that she will likely
develop the harm. However, contact with someone with AIDS is “impact”
only if P is actually exposed to the virus.
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(2) Exception §769

In some cases (e.g., mishandled corpses, erroneous reports of death), P need
not establish that she was within the “zone of danger” to recover for
emotional distress.
c. Injury or threat of injury to another (bystander recovery) §771
The older view requires P to be within the “zone of danger,” but the newer view
allows recovery where D’s negligence injures or threatens a member of P’s
family.
(1) Determinative factors under broader view §773
There are three requirements:
(a) P and the victim must be closely related;
(b) P must be “present” at the scene of the accident and must be aware
the victim is suffering;
(c) P must suffer direct emotional impact (beyond that of an unrelated
bystander) from contemporaneous personal observance of the accident
(“within moments” after accident suffices).
(2) Limitation §779
P’s right of action is dependent on the imperiled person’s right to recover.
Thus, if D is not liable for the harm to the victim, P cannot recover for
emotional distress.
d. Damage to property §780
Most cases deny recovery for emotional distress and consequential injuries when
property interests (including pets) are negligently damaged or threatened.
e. Resulting physical manifestation required §782
Emotional distress must result in tangible physical manifestation, although a
growing minority allows recovery for severe emotional distress without physical
manifestation.
f. “Severe” emotional distress required §785
Recovery is generally limited to what a normally constituted person would have
suffered. But if D knew or should have known of P’s special vulnerability
(“eggshell psyche”), P may recover even if a normally constituted person would
not have so suffered. Moreover, if D’s conduct would have caused severe
distress to a normally constituted person, P may recover the full extent of her
emotional distress, even if beyond what a normally constituted person would
have suffered.
13. Duty Not to Cause Purely Economic Loss §789
Although generally D has no duty not to cause purely economic loss, courts permit
recovery in limited circumstances (e.g., defamation, misrepresentation).
D. DEFENSES TO NEGLIGENCE
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1. Contributory Negligence §791

This is conduct on the part of P that is a contributing cause of his own injuries and
that falls below the standard of care to which he is required to conform for his own
protection.
a. Prima facie case §792
The prima facie case is similar to that of negligence except the actor owes a duty
to himself.
(1) Statutory standards §798
Where P, without excuse, violates a statute designed for his own protection
as well as that of others and the violation is a contributing cause of his injury,
the violation may establish duty and breach. Note, however, that there is no
contributory negligence where P is a member of a special class sought to be
protected by the statute.
b. Effect of contributory negligence §802
Traditionally, contributory negligence was a complete bar to P’s recovery for
negligence. But it is not a defense to intentional torts.
c. Exception—last clear chance doctrine §804
If immediately before an accident D had the last clear chance to avoid the
accident, P’s contributory negligence will not bar recovery.
(1) “Helpless peril” cases §805
P has placed himself in a position from which he is powerless to extricate
himself. If D had actual knowledge of P’s peril (or should have had such
knowledge) and could have avoided the harm but failed to do so, most
courts allow P to recover.
(2) “Inattentive peril” cases §806
P could have extricated himself but fails to do so because P was unaware the
accident was about to occur. Last clear chance is applied only if D had
actual knowledge of P’s peril.
d. Imputed contributory negligence §807
Generally, one person’s contributory negligence will be imputed to another in only
three situations:
(1) Master-servant §808
An employee’s negligence is imputed to the employer.
(2) Joint enterprise §809
The negligence of one member of a joint enterprise is imputed to others to
bar recovery against a third person.
(3) Suit based on injury to third persons §810
In actions for wrongful death, loss of consortium, or for bystander emotional
distress, the negligence of the victim is imputed to P by most courts.
(4) Distinguish—bailees and spouses §811
Negligence of a bailee is not imputed to the bailor as against third
XXXII
parties. Negligence ordinarily is not imputed between spouses (a few

community property states are contra).
2. Comparative Negligence §815
Virtually all states reject the rule that contributory negligence is an absolute bar to
recovery and base liability on the comparative fault of P and D.
a. “Pure” comparative negligence §817
Under a pure comparative negligence scheme, P may recover the percentage of
damages for which D is liable even where P’s negligence exceeds D’s.
b. “Partial” comparative negligence §818
Under a partial comparative negligence scheme, P may recover the percentage of
damages for which D is liable only if P’s own negligence is less than a certain
threshold level. If there is more than one D, most states require that P’s
negligence be less than the combined negligence of all Ds. A few states compare
P’s fault with each D’s, and permit recovery against that D only if P’s negligence
is less.
c. Impact of comparative negligence doctrine on other rules
(1) Last clear chance §824
Under comparative negligence, the last clear chance doctrine is generally
abolished.
(2) Wanton or reckless conduct by D §825
Such conduct apparently will not affect the comparative negligence doctrine;
i.e., P’s recovery can still be reduced. But the majority do not recognize P’s
negligence as a factor if D acted intentionally.
(3) Avoidable consequences §831
Total relevant fault is apportioned; thus, failure to mitigate damages is no
longer charged solely to P.
(4) Jury instructions §833
There is a split of opinion as to whether a jury in a comparative negligence
case should be told how its apportionment will affect recovery.
(5) Imputation of comparative negligence §834
The availability of comparative negligence has led some courts to more
freely impute negligence.
(6) Rescuers §835
Most courts do not allow a rescuer’s negligence to result in a reduction in the
rescuer’s award.
(7) Intoxicated Ps §836
Some states have concluded that allowing partial recovery to an intoxicated P
against a negligent tavernkeeper or liquor seller will serve to discourage
negligence.
XXXIII
(8) Res ipsa loquitur §837

Most states no longer require Ps to show freedom from contributory
negligence as part of a res ipsa case.
(9) Punitive damages §838
P may not recover punitive damages where the jury has attributed more fault
to P than to D.
3. Assumption of the Risk §839
If P expressly or impliedly consents to confront harm from a particular risk, this bars
recovery in negligence provided P (i) recognized and understood the danger, and (ii)
voluntarily chose to encounter it.
a. By agreement—“exculpatory clauses” §842
Enforceability of such clauses turns on contract law.
(1) Offer and acceptance problem §843
P must have been aware of the provision at the time of the agreement (e.g.,
“fine print provisions” may be unenforceable). The provision must be part of
the contract, although the words “negligence” and “breach of warranty” need
not appear.
(2) Scope of the contract §844
The provision must encompass P’s injury. Ambiguities are construed against
the drafter (usually D).
(3) Limitation—adhesion contract §845
The provision cannot be part of an “adhesion contract.” Where parties are in
unequal bargaining positions, an exculpatory clause may violate public
policy.
(4) Limitation—intentional torts §849
Enforceability of exculpatory clauses is limited to negligence claims; they are
no defense to intentional or wanton or reckless torts.
b. Implied assumption of the risk by conduct §850
D must show P’s knowledge of the particular risk and her voluntary choice to
encounter the risk. P is not required to surrender a legal right to avoid danger.
c. Exception §858
If P is a member of a statutorily protected class, she is deemed legally incapable
of assuming the risk.
d. Distinguish—P’s negligence §859
There may be both negligence by P and assumption of the risk by P in the same
case (e.g., P uses staircase that he knows is dangerous because D has negligently
failed to replace a light bulb). Under comparative negligence, P’s negligence
generally will be compared to D’s negligence in such cases.
e. Abolition of implied assumption of risk §860
A number of jurisdictions have abolished the implied assumption of risk
XXXIV
defense. It is treated as a question of duty or contributory negligence. A few

states taking this same basic approach speak of “primary” and “secondary”
assumption of risk.
E. EFFECT OF LIABILITY INSURANCE

1. Present “Third Party” Liability Insurance System §865
Insurance protects the insured against legal liability to others.
a. General operation §866
The suit is defended by the insurer in the name of the insured. Most policies
cover only negligent conduct by D or strict liability. Generally, there is no direct
action by P against the insurer until P obtains a judgment against D.
b. Insured’s duty of “cooperation” §870
The insured must cooperate with the insurer.
c. Insurer’s duty of “good faith” in settlement §871
An insurer is obligated to make a good faith effort to settle the case within the
policy limits. For failure to exercise good faith, the insurer is liable for the full
amount of the judgment. The insurer’s duty generally runs only to the insured;
the insurer does not owe the duty to third persons who might also be affected.
III. STRICT LIABILITY
A. IN GENERAL §880
Torts that are neither intentional nor the result of negligence may still create liability
simply because a certain type of injury occurs—even if no one is at fault. A prima facie
case consists of an act or omission to act that breaches an absolute duty to make safe
and is the actual and proximate cause of P’s injuries.
B. ANIMALS
1. Trespassing Livestock §882
The possessor of livestock is strictly liable for the trespass itself and any harm done.
2. Domestic Animals (Including Livestock) with Known Dangerous
Propensities §884
The possessor is strictly liable for all harm done as a result of that dangerous
propensity. If a domestic animal is of a class that normally has dangerous
propensities (e.g., a bull), the possessor is not strictly liable for injuries caused by the
normal dangerous propensity.
3. Domestic Animals Without Known Dangerous Propensities §887
The possessor generally is not strictly liable. However, several state statutes hold the
possessor liable for all dog bites even if there was no prior knowledge of the
propensity to bite.
4. Wild Animals §889
The possessor is liable for harm done as a result of a wild animal’s normally
dangerous propensity. However, where the wild animal is kept under a public
XXXV
duty (e.g., by a zoo), strict liability does not apply; P must show negligence (but D is
held to a high amount of care).
5. Persons Protected Where Injury Occurs on D’s Premises §893
Invitees and licensees are protected. A trespasser whose presence is not known or
anticipated is ordinarily not protected. But a landowner must warn of vicious
watchdogs.
C. ABNORMALLY DANGEROUS ACTIVITIES

1. General Rule §898
One who maintains an abnormally dangerous condition on his premises, or engages
in an activity presenting an unavoidable risk of harm to others, may be liable for
harm caused even though reasonable care was exercised.
2. “Abnormally Dangerous” Activities
a. Origin— Rylands v. Fletcher §900
A force, brought by D onto his land, that involves a “nonnatural” use of the land
and is likely to cause substantial damage if it escapes renders D strictly liable if it
escapes and does harm.
b. First Restatement—“ultrahazardous” activity §901
An ultrahazardous activity is any activity necessarily involving a risk of serious
harm to others such that it cannot be eliminated by utmost care and that is not a
matter of common usage.
c. Second Restatement—“abnormally dangerous” activity §902
Six factors are considered:
(1) Whether the activity involves a high degree of risk;
(2) The gravity of that risk;
(3) Whether the risk can be eliminated by the exercise of reasonable care;
(4) Whether the activity is a matter of common usage;
(5) Whether the activity is appropriate to the locale; and
(6) The value of the activity to the community.
d. Third Restatement standard §905
An activity is considered abnormally dangerous if it creates a foreseeable and
highly significant risk even when reasonable care is exercised and is not a matter
of common usage.
3. Products Liability Cases §912
Strict liability is imposed against suppliers of defective products.
D. EXTENT OF LIABILITY
1. Scope of Duty Owed §914
An absolute duty is owed to make safe abnormally dangerous animals, activities, and
conditions. The duty is owed only to foreseeable Ps and only for
XXXVI
harm that flows from the normally dangerous propensity of the condition or
activity involved.
2. Actual Cause §918
All courts use the same rules as in negligence cases.
3. Proximate Cause §919
Virtually all courts apply the same rules as in negligence cases.
E. DEFENSES
1. Contributory Negligence §920
This is no defense unless P knew of the danger and negligently caused the activity to
miscarry.
2. Comparative Negligence §921
This reduces recovery in most comparative negligence jurisdictions.
3. Assumption of Risk §922
The voluntary encountering of a known risk may prevent P’s recovery. Consent to a
risk is implied to bar strict liability where D acted for P’s benefit (e.g., water line
maintained partially for use by P).
IV. PRODUCTS LIABILITY
A. IN GENERAL §925
The liability of a supplier of a product for physical harm to person or property caused
by defective products is the basis for products liability.
B. LIABILITY BASED ON INTENTIONAL ACTS §929

A manufacturer or supplier who sells a chattel known to be defective, without adequate
warning, may be liable for battery. Punitive damages are potentially recoverable.
C. LIABILITY BASED ON NEGLIGENCE

1. Background—Gradual Abrogation of “Privity” Requirement §932
Early decisions limited liability to cases where there was “privity” between the
product supplier and the injured party, but this requirement was gradually eroded.
2. Impact of MacPherson v. Buick Motor Co. —Liability Based on Foreseeability
of Harm §933
Today, if a reasonable person would foresee a risk of harm if the product is not
carefully made or supplied, the manufacturer or supplier owes a duty of due care to
all foreseeable users.
3. General Scope of Negligence Liability Today §934
The MacPherson rule has been adopted in all states and now covers negligent design,
foreseeable bystanders, and property damage. Most courts also extend the rule to
design and construction of real property.
a. Assembler of components manufactured by others §940
A supplier who markets a product under the supplier’s name and who
XXXVII
has only assembled component parts negligently manufactured by others is liable

for a defect in the components whether or not discoverable.
b. Proving negligence—res ipsa loquitur §942
Res ipsa loquitur frequently applies in products liability cases based on negligence.
4. Role of Dealer or Middleman §943
There is no duty to inspect or test products manufactured by others unless there is a
reason to know of the defect.
a. Where dealer has reason to know of danger §945
If a dealer or middleman has reason to know of the danger (e.g., because of
previous complaints, source of supply is unreliable, manufacturer failed to label
properly, etc.), he must inspect or at least warn, but failure to do so will not
affect the manufacturer’s liability.
b. Where dealer actually knows of danger §947
If a dealer or middleman actually knows of the danger and fails to warn the
purchaser, the manufacturer is relieved of liability for unintended harm because
the dealer or middleman’s failure to warn will be treated as a superseding cause.
5. Damages §949
P can recover for personal injury and property damage but not purely economic loss
in most states. Punitive damages may be recovered where recklessness is shown.
6. Defenses §951
Contributory negligence, assumption of the risk, and comparative negligence may
apply.
D. STRICT LIABILITY IN TORT §952

Most courts hold manufacturers and suppliers of defective products strictly liable in tort
to consumers and users for injuries caused by the defect.
1. Rationale for Strict Liability §953
D is better able to insure against loss; increased safety incentive; difficulty of proving
negligence—all these are bases for a public policy imposition of liability without fault.
2. Caution—Liability Not Absolute §957
Liability is strict, but not absolute. P must still prove that the defect that caused her
injury is attributable to D.
3. Caution—Liability May Not Even Be “Nonfault” §958
The type of “defect” involved may control whether strict liability or negligence is
applicable.
a. Three kinds of defects
(1) Manufacturing defects §960
A manufacturing defect occurs where a product is not in the condition the
manufacturer intended at the time it left the manufacturer’s control.
Liability for this type of defect is “strict.”
XXXVIII
(2) Design defects §961

Design defects occur where the product is designed in such a way that it
presents an undue risk of harm in normal use. Although courts speak of
strict liability in such cases, the same result is almost always reached by a
negligence analysis, because the undue risk should have been discovered and
prevented by due care.
(a) Crashworthiness §965
A manufacturer can be held liable for failure to design a product so as to
minimize foreseeable harm caused by other parties or conditions (e.g., design
of automobile for safety in collisions).
(b) Approaches to design defects
1) Risk/utility test §967
Under this prevailing approach, the question is whether the
product’s risks outweigh its utility—e.g., whether D could have
removed the danger without serious adverse impact on the
product’s utility and price.
2) Consumer expectation test §969
Under this approach, P must prove that the product did not perform
as safely as an ordinary consumer would have expected. This test is
often used in defective food cases.
3) Combined approach §972
Under this approach, recovery is permitted if P satisfies either the
risk/utility test or the consumer expectation test.
4) Reasonable alternative design test §975
The Second Restatement was based on consumer expectations and
did not allow recovery for patent dangers. Under the Third
Restatement approach (not applied in cases involving food), D’s
design is defective if the greater safety of a reasonable alternative
design outweighs its disadvantages.
(c) Dangers not foreseeable at time of marketing §976
The majority of courts follow the Restatement and deny strict liability
where the manufacturer could not have guarded against the danger by
the application of reasonable developed human skill and foresight.
(d) Discovery of danger §978
When a scientifically unknowable risk becomes discoverable, the
manufacturer or supplier becomes liable. The manufacturer has a duty
to eliminate the danger, if feasible.
Otherwise she must warn consumers or discontinue distribution. There
is a duty to take reasonable steps to warn those who bought before the
risk was discovered.
XXXIX
(3) Inadequate warnings §979

Defects may arise from packaging and inadequate instructions, warnings, or
labels. Inadequate warnings may make a product defective when the dangers
are not apparent to consumers and users.
(a) Unexpected dangers §980
The danger must be something that a reasonable user would have no
reason to expect or anticipate in the product. The means of harm may
also be unexpected and require specific warning. If the danger is
unexpected by D because it could not be anticipated, most courts will
analyze it as a negligence question.
(b) Unavoidably unsafe products §983
Many useful products are unavoidably unsafe (e.g., knives), but this
does not render them defective, because there is no safer way to make
them. To create liability for failure to warn of such danger, the danger
must be not reasonably apparent (e.g., danger from short-burning
dynamite fuse).
(c) Testing adequacy of warning §986
A warning may be inadequate if it is incomplete, is inconsistent with
how the product is used, or does not give the reason for the warning.
(d) Testing who must receive warning §989
Usually the warning must reach the person at risk from the danger
(e.g., supplier of glue to bookbinding plant must warn workers who
come in contact with glue of its dangers).
1) Learned intermediary exception §990
Most courts hold that as to pharmaceuticals, an adequate warning
need reach only the prescribing physician.
4. Scope of Liability
a. Parties liable—commercial suppliers §992
All participants in the marketing of the product may be held liable.
(1) Sellers §993
Liability applies to manufacturers, retailers, and distributors.
(2) Lessors §994
Liability applies to commercial bailors and lessors.
(3) Assemblers of components §997
Liability applies to manufacturers of components and to assemblers of the
finished product.
(4) Contractors §998
A contractor who provides a defective product may be liable.
(5) Successors in interest to manufacturers of defective
products §999
Such persons are generally not liable unless there was a merger of
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companies, the buying company agreed to assume the seller’s liability, or the
sale was a fraudulent attempt by the seller to avoid liability.
(6) Sellers of used products §1000
Some courts hold used product sellers liable for safety defects attributable to
the design or manufacture if the product fails to meet the purchaser’s
reasonable expectations; other courts bar strict liability unless the seller
makes representations of quality.
(7) Franchisors §1002
Franchisors may be liable if they retain some control over franchisees.
(8) Trademark licensors §1003
Trademark licensors may be liable if they participate in product design and
marketing.
b. Distinguish—noncommercial supplier §1004
Only those regularly engaged in the business of manufacturing, selling, or leasing
can be held strictly liable.
c. Parties who may invoke liability
(1) Ultimate user or consumer §1008
The ultimate user of a product as well as the purchaser may invoke the
doctrine.
(2) Bystanders §1009
Most states permit suit by bystanders.
(3) Rescuers §1010
Some case authority permits suit by rescuers.
(4) Business firms §1011
Courts are split over whether business entities may recover from each other
for property damage under strict liability.
d. Liability extends only to “products” §1012
This is an expansive view that includes: (i) products in their natural state (e.g.,
poisonous mushrooms), and (ii) defective mass-produced buildings (modern
trend). But services are not covered. Nevertheless, courts find a “product”
furnished in cases involving defective food or hair treatment. Note that most
states bar such suits in cases involving transfused blood; Ps must seek to recover
on a negligence basis.
e. Liability extends only to “defective” products
(1) Basic approaches
(a) Restatement view §1023
The product must be “unreasonably dangerous” due to a defect
—i.e., something other than what a reasonable person would expect in
normal use.
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(b) Alternative approach—“defect” alone §1027

Under this view, an action lies for injuries from a defect that may not
be unreasonably dangerous in terms of foreseeability.
(2) Misuse §1028
The defect must arise in the normal or foreseeable use of the product.
However, a certain amount of misuse, carelessness, and modification is
foreseeable, so that a product may be deemed defective if safety measures
are not taken.
(3) Abnormal reactions §1032
Highly unusual reactions do not render a product defective. But if the
reaction is shared by even a small percentage of the population (e.g., 3-4%),
a defect may be found. Under the modern trend, if there is a known risk to
any number of potential users, a manufacturer owes a duty to warn.
f. Proof required §1035
P has the burden to prove (i) the product was defective when it left D’s control,
and (ii) a causal relationship to the injuries exists.
(1) Circumstantial evidence of “defect” admissible §1036
A defect may be inferred where the product functions improperly in normal
use.
(2) Causation §1037
P must prove her injuries were caused by a defect existing at the time the
product was marketed by D.
(a) Cause in fact (actual cause) §1039
The defect must be a substantial factor in causing the injury (e.g., an
adequate warning would have made a difference; or an omitted safety
device would have decreased severity of the inevitable accident).
(b) Proximate cause §1043
Proximate cause must be shown; the effect of intervening causes is the
same as in negligence.
g. Kinds of losses recoverable §1048
Damages for pain and suffering, medical expenses, lost wages, property damages,
etc., are recoverable. Recovery for purely economic loss is not generally allowed,
but a minority is contra.
5. Defenses to Strict Tort Liability
a. Contributory negligence §1054
This is not per se a valid defense. However, the product is not “defective” when
the injury is caused by an unreasonable misuse of the product.
b. Comparative fault §1057
This is used in most states. P’s recovery is reduced to reflect her own
carelessness.
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c. Assumption of the risk §1059

Assumption of the risk can be a valid defense—e.g., voluntary use after
“adequate” warning. However, most courts hold that if a dangerous situation
confronts a person who unreasonably chooses to encounter it, the defense is not
assumption of the risk, but rather comparative fault.
d. Disclaimers §1065
These have been held invalid in consumer transactions as against public policy,
but may be upheld between business concerns.
e. Statute of limitations §1067
The period is that of tort rather than contract.
f. Preemption §1068
A few courts have concluded federal legislation has impliedly preempted state tort
law (e.g., airbag in automobile, warning on cigarettes).
E. LIABILITY BASED ON BREACH OF WARRANTY

1. Express Warranties §1070
If a seller makes a representation about the product, an express warranty arises, and
breach of the warranty gives rise to contract liability.
2. Implied Warranties
a. Fitness for particular purpose §1073
Where the seller should know that the buyer is purchasing for a particular
purpose and that the buyer is relying on the seller’s expertise to choose suitable
goods, the product is warranted to be fit for that particular use.
b. Merchantability §1074
A seller who deals in goods of that kind warrants that the goods are generally fit
for normal use.
c. Transactions covered §1076
The U.C.C. applies only to sales of goods.
(1) Bailments §1077
Bailments are covered by analogy to the U.C.C.
(2) Sale of real property §1078
Some courts extend warranties to the construction and sale of a new home.
(3) “Goods” vs. “services” §1079
Warranties are not implied in contracts for services, although sometimes it is
difficult to distinguish goods from services (e.g., sale of food in restaurant is
“sale of goods,” but most states treat blood transfusions as “services”).
(4) Dealers §1082
Generally, only those who “deal” regularly in the product are subject to
warranty liability.
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3. Effect of Breach of Warranty §1083

Warrantors are liable regardless of fault or negligence.
4. Requirement of “Privity of Contract”
a. Former rule §1085
Implied warranties would run only to those in privity with the manufacturer (i.e.,
distributors, wholesalers). Thus, purchasers and consumers had no direct action
against the manufacturer.
b. Modern law §1088
Under U.C.C. alternatives, privity extends to:
(1) Members of family and guests who are injured; or
(2) Any individual reasonably expected to use or be affected by goods who is
injured; or
(3) Any person reasonably expected to use or be affected by goods who is
injured.
c. Abandonment of “privity” as to dangerous products §1091
Historically, certain products, such as foodstuffs and firearms, were excluded
from the “privity” requirement. Today, due to public policy considerations, this
concept has been expanded by many courts to encompass any dangerous
product and extends to all persons within the foreseeable scope of use.
d. Consumer protection statutes §1094
Some states have abolished the privity requirement between the manufacturer
and the purchaser of all consumer goods.
e. Causation §1095
D is not liable where, because of an independent superseding event, its breach is
not the proximate cause of the damage. Note that if the danger of the product is
apparent to an ordinary purchaser, warranty liability will not lie.
f. Damages §1097
Damages are generally the same as in a strict liability tort action, although a few
states bar damages for wrongful death on a warranty theory.
5. Defenses to Warranty Actions §1098
Although contributory negligence is not formally a defense to a breach of warranty
action, most courts have developed an analogous defense to parallel the tort
developments; i.e., comparative fault. If P discovers a defect and unreasonably uses
the product in its defective condition, assumption of the risk is a complete defense
in warranty actions. Under limited conditions, disclaimers may limit liability.
V. NUISANCE
A. IN GENERAL
1. Prima Facie Case §1107
A prima facie case consists of an act by D that constitutes a nontrespassory
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interference with P’s interest in the use and enjoyment of P’s land and that causes
substantial and unreasonable harm.
2. Private Nuisance vs. Public Nuisance
a. Private nuisance defined §1108
A private nuisance is an unreasonable interference with the possessory interest of
an individual in the use or enjoyment of her land. Distinguish trespass, which
requires entry of a person or thing onto P’s property. For example, the casting of
invisible chemical particles onto P’s land may be a trespass; an intrusion by
means of noise, odor, or light can only be nuisance. (But note: Some acts may be
both trespass and nuisance; e.g., blasting that causes rocks to fall on P’s land).
b. Public nuisance defined §1110
A public nuisance inconveniences the public at large. A private individual may
maintain the action for a public nuisance only if she suffered an injury “peculiar
in kind”—i.e., apart from that suffered by the public. However, the lawful sales
of lawful products (e.g., handguns, fast food) do not give rise to a public nuisance
claim.
B. PLAINTIFF’S INTEREST §1114

P must be in actual possession or have the right to immediate possession. Some courts
extend nuisance to interference with business interests as well as land.
C. DEFENDANT’S CONDUCT §1118

D’s act can be intentional, negligent, or actionable under strict liability rules; the
distinction is necessary to ascertain available defenses.
D. SUBSTANTIAL AND UNREASONABLE HARM TO PLAINTIFF

1. “Substantial” §1123
This refers to something that would offend a reasonable person.
2. “Unreasonable” §1124
This means the harm outweighs justification for D’s conduct.
a. Factors §1125
Factors to consider are the neighborhood, values of respective properties, cost to
cure, social benefits, etc.
b. Aesthetic considerations §1126
Most courts have held that aesthetic considerations may not ordinarily create a
nuisance.
c. Prior occupation §1128
“Coming to the nuisance” (i.e., D was there first) may be relevant but not
conclusive.
d. Effect of zoning §1129
Zoning ordinances permitting D’s activity are not conclusive (presumptive
defense in some states).
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3. Minority Rule—Intentional Substantial Interference Enough §1130

A number of courts hold that substantial interference suffices regardless of
reasonableness if D acted intentionally.
E. CAUSATION §1132
Same as battery if D acted intentionally; same as negligence if conduct is inadvertent.
F. REMEDIES §1134
Compensatory damages are available. An injunction may lie if the nuisance is continuing
in nature, and the self-help remedy of abatement may be available.
G. DEFENSES
1. Contributory or Comparative Negligence §1138
D may reduce or escape liability for inadvertent conduct by proving P was negligent.
However, where the nuisance is intentional, contributory or comparative negligence is
not a defense.
2. Assumption of the Risk §1142
Assumption of the risk may also be available to relieve D of liability. However, the
fact that the activity existed before P came (i.e., coming to the nuisance) is not
necessarily a defense.
VI. MISCELLANEOUS FACTORS AFFECTING RIGHT TO SUE
A. SURVIVAL OF TORT ACTIONS

1. Common Law—No “Survival” §1150
Traditionally, tort actions did not survive the death of either the tortfeasor or victim.
2. Survival Statutes §1151
Such statutes, enacted in almost all states, usually provide for survival of personal
injury or property actions. However, most states do not allow actions to survive
where the tort involves recovery for invasion of intangible personal interests (e.g.,
defamation, right of privacy). Also there is usually no recovery of punitive damages
from the decedent’s estate.
B. WRONGFUL DEATH §1156

At common law, there was no cause of action for wrongful death. Today, wrongful
death statutes exist in every jurisdiction.
1. “Survival” Type §1158
Some jurisdictions provide that any action the decedent might have maintained
himself survives, plus recovery for damages to his estate (including pain and
suffering, loss of future earnings).
2. “True” Type (Majority) §1159
Most jurisdictions have statutes that create a new cause of action for the benefit of
certain relatives to recover their pecuniary loss. (The decedent’s estate maintains a
separate action for the decedent’s losses.)
a. Computing pecuniary loss
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(1) Wage earners §1162

If the decedent was a wage earner, damages are based on estimated
earnings over his life expectancy.
(2) Children §1163
Probable earnings of a child are only speculative; the award is fixed on the
“pecuniary value” of the child’s life.
(3) Non-wage earners §1164
If the decedent was not a wage earner, recovery is generally the cost to
replace the services of the deceased, including advice and companionship.
(4) Retired persons §1165
If the decedent was a retired person, his survivors are entitled to some
recovery despite the speculative nature.
b. Effect of remarriage §1166
Most courts bar evidence of remarriage.
c. No punitive damages §1167
The general rule is that even where punitive damages could have been awarded
had the victim survived, they are not awardable in a wrongful death action.
3. Defenses
a. Victim’s negligence, etc. §1168
D may use all defenses she could have asserted against the decedent (e.g.,
contributory negligence).
b. Victim’s inter vivos recovery §1169
The majority view holds that recovery during the victim’s life bars any action
after death.
c. Beneficiary’s negligence §1170
Contributory negligence reduces or negates recovery (if one beneficiary, no
recovery; if more than one, proportional reduction); comparative negligence
reduces recovery.
C. INJURIES TO MEMBERS OF THE FAMILY

1. Loss of Consortium and Services
a. Common law §1172
The husband’s right to recover for loss of his wife’s services and consortium was
recognized. Also, a parent could recover for a child’s labor and expenses of care,
but no action was allowed for loss of a child’s consortium.
b. Modern law §1175
Under modern law, either spouse may recover for loss of services or consortium
(must be complete loss of companionship and intercourse for some definite time).
If a spouse is killed, the surviving spouse has only the remedies of the survival
and wrongful death statutes.
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(1) Parent-child §1181

Traditionally, a parent could recover only economic losses for a child; the
modern rule allows recovery for loss of the child’s society and comfort.
(2) Children §1185
Children may not recover for injuries to their parents. A few states are
contra.
c. Effect of victim’s negligence §1186
Defenses assertable against the victim may be asserted against P.
d. Joinder requirement §1187
Claims must be joined with the victim’s claim to avoid double recovery.
2. Prenatal Injuries to Child §1188
Traditionally, no recovery was allowed to a child for prenatal injuries. In most states
today, a child can recover for prenatal injuries if the child was “viable” at the time of
injury. Some states permit recovery for injuries sustained even before viability.
a. Wrongful death §1192
There is a split of authority. Many states allow recovery for wrongful death if the
child was viable.
b. “Wrongful birth” §1193
In wrongful birth cases (e.g., negligent unsuccessful vasectomy resulting in
unwanted child), the mother may recover for pain and suffering during
pregnancy and delivery, and for related medical expenses and loss of consortium
during this time. Most courts also permit recovery for extraordinary medical and
related expenses if the child has genetic defects. The modern trend is to permit
recovery for costs of raising an unwanted healthy child (but benefits of the birth
are usually offset against recoverable expenses). Almost all states bar suit by the
child.
3. Intentional Interference with Family Relationships
a. Alienation of affections §1201
The states are split as to whether a spouse can bring such an action. In the states
where it has not been abolished, either spouse may bring suit (contrary to the
common law).
(1) Parent-child claims rejected §1204
Modern courts reject claims brought by either parent or child (e.g., suits by
parents against religious groups are rejected).
b. Criminal conversation §1207
The early view permitted a husband to sue for damages if he could prove that D
had had sexual relations with the husband’s wife. Today, most states have
abolished this action because of its potential for blackmail.
c. Intentional interference with custodial rights §1209
Recently, several states have recognized a cause of action for intentional
interference with a parent-child custodial relationship.
XLVIII
d. Emotional distress claims §1210

Courts are split over whether to permit an action for intentional infliction of
emotional distress where the action closely resembles one for alienation of
affections or criminal conversation that has been barred by the state.
D. TORT IMMUNITY
1. Intrafamily
a. Husband-wife §1211
At common law, spouses could not sue each other in tort. However, virtually all
states have abolished spousal immunity altogether.
b. Parent-child §1214
Traditionally, only causes of action pertaining to property were permitted. The
modern trend rejects or restricts immunity. Some states that have abolished the
immunity relax the duty of care owed; others impose a normal duty of care on
the parent.
c. Other relationships §1221
There is no tort immunity for other family relationships. However, some states
bar suit by one child for harm caused by a sibling’s negligent supervision.
2. Governmental Tort Immunity (Sovereign Immunity) §1222
At common law, the state was held to be immune from tort liability.
a. State and federal §1223
State and federal governments and agencies are immune (e.g., hospitals, schools,
etc.).
b. Municipalities §1224
“Proprietary” or “private” functions performed by municipalities are not
immune (i.e., functions that could have been provided by a private corporation)
but “governmental” functions are.
c. Status of doctrine today §1228
Many courts have abolished sovereign immunity, and some legislatures reacted by
reenacting limited governmental immunity. The Federal Tort Claims Act abolishes
immunity for negligence of government employees and for most intentional torts
by federal investigative or law enforcement officers.
d. Liability of governmental officers §1235
Judges, legislators, and high ranking members of the executive branch are
immune from tort liability for acts carried out within the scope of their duties.
Lower level administrative officers are immune from claims of negligence under
federal law and some states’ laws.
(1) No immunity for “ministerial” functions §1238
Other states grant immunity to lower level officers who act honestly and in
good faith when performing “discretionary” functions (i.e., functions
involving personal judgment or decisionmaking).
XLIX
(2) Statutory changes §1241

A person acting under color of state law who deprives P of a federal right is
liable for damages. [42 U.S.C. §1983]
(a) Basis of liability §1242
The action requires that the deprivation be caused by malicious and
intentional behavior or deliberate indifference.
(b) Interests protected §1243
The action clearly includes physical well-being and freedom from
improper incarceration.
(c) Defenses §1244
The statute is silent and no general rules have emerged regarding
defenses.
(d) Distinguish—federal agents §1246
Violation of federal constitutional rights by federal agents gives rise to
civil liability.
3. Charitable Immunity §1248
Charities traditionally were immune from liability for acts of employees; however,
this immunity has been abolished in almost all states.
E. RELEASE AND CONTRIBUTION AMONG JOINT TORTFEASORS

1. Introduction §1252
Joint tortfeasors are jointly and severally liable for harm they cause. This applies to
persons acting in concert or those whose independent acts cause indivisible injury.
2. Judgment and Satisfaction §1254
An unsatisfied judgment against one joint tortfeasor is no bar against others. A
satisfied judgment against one prevents recovery for any additional amount against
others.
3. Releases §1255
Traditionally, a release of one releases all; however, the rule is avoided in some states
by contractual provisions reserving rights against others or by statute.
4. Contribution §1258
At common law, there was no contribution between joint tortfeasors; i.e., one who
pays may not recover from others. Modern statutes permit contribution among
nonintentional joint tortfeasors.
a. Impact of comparative negligence §1260
A number of states retain joint and several liability, but contribution is allowed
between joint tortfeasors on a comparative fault basis. Where D is liable on a
market share basis, most versions of market share liability hold that liability is
only several, not joint.
F. INDEMNITY §1262
A D who is secondarily liable for P’s injury but is forced to pay a judgment is entitled
to indemnification against the primary tortfeasor. Indemnity shifts the entire loss. In
contrast, contribution requires each party to pay a proportionate share. Indemnity is
appropriate in vicarious liability (e.g., respondeat superior) situations, and where one D
is more culpable (e.g., retailer held under strict liability is entitled to indemnity from
negligent manufacturer). An originally negligent tortfeasor is entitled to be indemnified
by the person who aggravates damages.
G. STATUTES OF LIMITATIONS §1268

The typical limitations period for negligence cases is two or three years. The period
begins to run when P’s claim accrues—in some states when P suffers a legally
cognizable injury, and in others upon D’s act. Today, most states provide that the clock
does not begin to run until P discovers his injury.
VII. STATUTORY CHANGES IN PERSONAL INJURY LAW
A. CHANGES TARGETING SPECIFIC KINDS OF TORT CLAIMS

1. Workers’ Compensation §1272
Before the passage of workers’ compensation laws, workers were generally barred
from recovering for work-related injuries under tort principles because of the
doctrines of contributory negligence and assumption of the risk, in addition to the
fellow-servant doctrine. Today, well over 80% of workers are covered by
comprehensive, mandatory workers’ compensation laws that allow them to recover
for all claims for personal injuries arising out of and in the course of their
employment, regardless of fault. These statutes provide the exclusive remedy for
an employee against the employer. However, the worker can usually still sue a third
party in tort.
2. “No-Fault” Auto Insurance §1285
No-fault insurance is designed to alleviate problems arising from a “fault” basis
—e.g., uncompensated victims, high premium rates, etc. It eliminates “fault” as the
basis for liability in auto accident cases in about half of the states. The essential
provisions of the various plans include: (i) insurance for all car owners is mandatory;
(ii) coverage includes all claims arising from the use or operation of any motor
vehicle; (iii) injured car occupants make claims against the policy covering the cars
they were riding in; and (iv) damages are limited to economic losses (no pain and
suffering).
a. Impact of “no-fault” plans §1292
The plans limit some of the traditional negligence actions. Also, there is automatic
subrogation for payments by other insurers (no double recovery).
3. Medical Malpractice §1297
Rapidly escalating malpractice insurance rates have resulted in controlling legislation.
These laws include provisions that shorten the applicable statute of limitations, limit
pain and suffering awards, require periodic rather than lump sum payments if an
award exceeds some minimum figure, limit legal fees, allow deduction of collateral
sources from awards, and establish malpractice panels.
LI
4. Products Liability §1305

Manufacturers and retailers have encouraged legislation to lessen their financial
burden created by common law decisions. About half of the states have enacted
more moderate laws regarding strict liability, the most common change being the
enactment of statutes of repose, which limit the time during which an action on a
defective product may be brought. Also, Congress has enacted a limited no-fault
compensation scheme for injuries caused by certain vaccines.
5. Miscellaneous Statutory Changes to Personal Injury Law §1313
A few states have a broad statutory duty to rescue others exposed to grave physical
harm, and many states have enacted dram shop laws concerning liability of tavern
owners and social hosts for actions of intoxicated people. Most states have laws
compensating victims of violent crimes. Many nations, including the United States,
have joined the Warsaw Convention, which provides victims of international air
mishaps with strict liability recovery of a limited amount. Federal legislation provides
limited no-fault compensation to nuclear accident victims, miners afflicted with
black lung disease, and victims of the September 11th attacks. As to certain risks
(e.g., cigarettes, airbags), federal law may expressly or impliedly preempt state law.
B. CHANGES AFFECTING TORT CLAIMS GENERALLY

1. Motivation §1329
In the mid-1980s, some perceived the tort system to be in a state of crisis, e.g.,
excessive damages awards, disproportionate payments by joint tortfeasors, and high
insurance premiums. In response, a large majority of the states have adopted
legislation to reduce these problems.
2. Joint and Several Liability §1330
About 10 states have abolished this. A number of other states have limited damages
based on a D’s degree of fault. Other limitations are based on the nature of the tort
(e.g., no joint and several liability unless Ds acted with a common plan or the action
involves toxic substances).
3. Limitations on Damages §1334
More than a quarter of the states have restricted noneconomic damages (e.g., pain
and suffering), and many states provide for periodic payments (instead of a lump
sum) for future damages awards. Approximately half of the states now restrict
punitive damages (e.g., caps on awards, higher standards of proof).
4. Collateral Sources Rule §1344
Some states have limited the rule by permitting setoffs of funds obtained from
collateral sources from the damages award.
5. Miscellaneous §1349
Other recent changes include regulation of attorneys’ fees, required arbitration, and
sanctions for frivolous claims.
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VIII. DEFAMATION
A. IN GENERAL §1352
A prima facie case at common law required the publication to a third person of a
statement that harmed P’s reputation, thereby causing P to suffer damages. On First
Amendment grounds, the Supreme Court has eroded the common law framework, thus
prohibiting states from following their common law rules on strict liability and burdens of
proof in certain actions for defamation. Any problem involving defamation may also
involve the right to privacy or the wrongful causing of emotional distress.
B. PUBLICATION TO A THIRD PARTY

1. Language Uttered Only to Plaintiff Not Actionable §1357
The defamation must be “published” (communicated) to someone other than P.
2. Any Third Person Sufficient §1358
Publication to any third person is sufficient regardless of the relationship between the
parties.
3. Manner of Publication §1360
Publication can be by words, gesture, or conduct.
4. Publication Must Have Been Intentional or Negligent §1362
Publication must at least be negligent; D must have reason to foresee that a third
party would overhear or see the statement. Cases are split on whether there is a
publication when the defamed person is forced by circumstance to repeat the
defamation (e.g., a job applicant who tells a prospective employer his former
employer’s reason for firing him).
5. Who Is a Publisher?
a. Original publishers §1367
This includes anyone having any part in the original publication. Respondeat
superior applies.
b. Republishers §1370
At common law, the republisher of a defamatory statement could be held liable
equally with the original publisher (subject to certain exceptions for privileged
communications).
(1) Slander or libel §1371
If the original defamation is libel (e.g., written), republication is libel even if
the republication is oral (i.e., slander). If the original publication was oral
(slander), a written republication is libel.
(2) Failure to remove defamation §1373
Failure to remove defamation posted on one’s premises by someone else
may be negligent republication by the owner (e.g., failure to remove graffiti
from men’s room wall).
(3) Effect of republication on liability of original
publisher §1374
The original defamer’s liability is increased by whatever harm is caused by
republication if republication was intended by the original defamer or
reasonably foreseeable.
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(4) Legal duty to republish §1375

One who is under a legal duty to publish has an absolute privilege to do so
(e.g., executor is privileged to probate a will containing defamatory remarks).
c. Disseminators §1376
Persons who circulate, sell, or otherwise deal with the physical embodiment of
defamatory matter are liable only if they had reason to know of the defamatory
nature of the material they handle.
(1) Distinguish—printers §1378
Independent contract printers have no duty to inspect a publication for
libelous content.
(2) Distinguish—computer bulletin boards §1379
The majority view relieves computer bulletin board providers from liability.
C. HARM TO REPUTATION
1. Defamatory Meaning §1380
To be actionable, a statement must have the potential to injure P’s reputation.
a. Is the alleged meaning defamatory? §1381
The statement must tend to lower P’s reputation in the estimation of the
community where published, or deter others from associating with her. Some
states require that P be exposed to hatred, contempt, or ridicule.
(1) Community standards control §1383
Whichever standard is used, the statement must injure P in the eyes of a
substantial and respectable minority of the community.
(2) Defamatory effect §1384
The focus is on how the words were reasonably understood by some third
person to whom the statement was published, rather than on what the
speaker meant. If the statement was in a foreign language which the third
party did not understand, the statement cannot be defamatory.
(3) “Libel-proof plaintiffs” §1387
At common law, some courts dismiss cases brought by persons with
reputations so bad that a false statement could not really hurt them. This rule
is not required by the First Amendment.
b. Can the words carry the suggested meaning? §1389
In determining the meaning attached to a statement, courts look at the fair and
natural meaning the statement will be given by reasonable persons of ordinary
intelligence. Publications are generally read as a whole in light of the context in
which the statement appears.
(1) Defamation by implication and insinuation §1393
The form of language used by D is not controlling, as long as third
LIV
persons could reasonably interpret it as defamatory to P (e.g., article stating

that protestor died of heart attack while doctor he was protesting against was
in nearby building could be taken to mean that doctor knew of the
protestor’s problem and chose not to help him).
(2) Incomplete defamation §1395
If the defamatory meaning arises only when the words are combined with
extrinsic facts (e.g., report that P had twins is defamatory when combined
with extrinsic fact she had been married only one month), P must allege and
prove the extrinsic facts (the “inducement”), that these facts were known to
a third person who heard the statement, and that the implication
(“innuendo”) of the statement, when combined with those facts, is
defamatory.
2. “Of and Concerning” P §1396
Some third person must have reasonably interpreted the statement to refer to P.
a. Defamed person unnamed—colloquium §1397
Where a publication is clearly defamatory of somebody, yet on its face does not
refer to P, P must establish the colloquium; i.e., that some persons reasonably
interpreted it as applying to P.
b. Who may be defamed—in general §1400
Any living person, corporation, partnership, or other legally recognized entity may
be defamed. Fraternities and unincorporated associations, on the other hand, do
not possess sufficient status as an entity to sue for defamation. Similarly, no
action will lie for defamation of a dead person. However, most states following
the usual tort rule provide for survival of a claim when P dies after being defamed
but before suit or trial.
c. Individual claims arising from group defamations §1405
Most states hold that no member of a defamed group may bring an action unless
the group is so small that the statement may reasonably be interpreted as applying
to each member. However, some courts hold that group size is not the sole
consideration, and consider other factors that affect the intensity of suspicion cast
upon the group. Note that if a group is small enough, a charge against “some”
may be a charge against all.
3. Strict Liability §1408
Although “publication” requires intent or negligence, “harm to reputation” at
common law is based on strict liability; e.g., it is irrelevant whether D anticipated that
some readers would understand an article as it is now claimed they did. However,
constitutional law restricts strict liability (see infra, §§1503 et seq.).
D. FALSE FACTS
LV
1. Falsity §1409
At common law, the burden was on D to prove the statement was true. D was
strictly liable for defamatory statements, regardless of D’s knowledge of the
statement’s falsity. However, some states have moved to a negligence standard, and
stricter standards apply where the First Amendment is involved (e.g., public figures,
matters of public concern). The general view is that truth of the defamatory matter is
a complete defense.
2. P’s Burden to Prove Falsity §1414
At least where the statement involves a matter of public concern, the First
Amendment requires P to bear the burden of proving the statement is false.
3. Statement Cannot Be False Unless it Contains Assertions of
Fact §1416
To meet the burden of proving falsity, P must show that the alleged defamation
contained statements of fact or implied unstated facts that were false.
a. No automatic protection for “opinion” §1417
An opinion may be defamatory if it can be reasonably interpreted by the recipient
as being based on underlying defamatory facts.
b. Specificity of language §1421
The more specific the language, the more likely it is to be reasonably interpreted
as either a statement of fact or a statement based on underlying facts.
E. CAUSATION §1422
Same as for negligence, except recovery of special damages is limited to foreseeable
damages.
F. DAMAGES AND OTHER REMEDIES §1423

The scope of damages under common law depends on the form of the publication—
libel or slander—as well as on the motives with which it was uttered. Also, there may be
constitutional limitations for Ds protected by the First Amendment.
1. “Libel” and “Slander” Distinguished
a. “Libel” §1424
Libel is a defamation reduced to some permanent physical embodiment—
usually written or printed (representation to the eye).
b. “Slander” §1425
Slander is oral defamation—less permanent (representation to the ear).
c. Borderline cases §1426
In borderline cases consider the permanence of the form, area of dissemination,
and deliberate or premeditated character of the publication.
(1) Broadcasting §1427
Under the newer view, all radio and TV publications are libel, but state
statutes are split.
2. Damages Rule for Slander §1429
Slander is not actionable without a showing of special damages, unless deemed
“actionable per se.”
LVI
a. Compensatory damages recoverable
(1) “Special damages” §1430
Special damages are pecuniary damages actually suffered and not presumed
by law. Once some special damages are proved, P may recover general
damages.
(2) “General damages” §1431
General damages compensate for harm to P’s reputation. Even if not
provable, their existence can be presumed based on the likely effect of the
defamation considering the number of persons likely to hear it, the nature of
the charge, and the identity of the speaker and P.
(3) Emotional damages §1433
Emotional damages are allowed in many states, but others limit recovery for
emotional damages if P also qualifies for presumed damages.
b. Slander per se—special damages not required §1434
Proof of special damages is not required in four situations:
(1) Where D charges that P committed a serious, morally reprehensible
crime, or that P has been incarcerated for such a crime;
(2) Where D imputes to P a presently existing loathsome communicable
disease (e.g., venereal disease or leprosy);
(3) Where D imputes to P conduct, associations, or characteristics
incompatible with proper performance of P’s business, trade, office, or
profession; and
(4) Where D imputes unchastity to a female P (some states extend this to
include males and to allegations of homosexuality).
3. Damages Rule for Libel §1443
Where the statement is defamatory on its face, in most jurisdictions special damages
need not be shown; general damages are presumed.
a. Libel per quod §1444
Where the matter is innocent on its face, the courts are split:
(1) Special damages need not be shown; or
(2) Damages are presumed only where the libel falls into one of the “slander
per se” categories.
4. Punitive Damages §1445
Most states allow punitive damages if the defamation can be shown to have been
made with common law malice, such as hatred, ill will, or spite.
a. Federal constitutional restrictions §1446
The First Amendment prohibits punitive damages for defamations involving
matters of public concern, where the falsity is attributable only to negligence.
The U.S. Supreme Court has not ruled on whether the First Amendment provides
special protection against punitive damages
LVII
in libel cases where a public figure has proved actual malice (state courts have
rejected this claim). However, the Court has held that where the defamation
involved a confidential report to a few people, it does not involve a matter of
public concern and punitive damages are recoverable even for negligent
defamations.
b. State constitutional restrictions §1448
Some states disallow punitive damages under state constitutional law.
5. Retraction §1449
Several states by statute preclude recovery of general damages from news media if a
retraction is promptly published.
6. Injunctions §1450
Courts traditionally have refused to enjoin defamatory speech because of First
Amendment concerns.
G. DEFENSES
1. Consent §1451
Consent is a complete defense.
2. Truth §1452
Truth is generally a complete defense. Also, most states impose upon P the burden of
proving falsity in almost all cases.
3. Common Law Absolute Privileges §1453
Absolute privileges are complete defenses regardless of malice or abuse:
a. Participation in the processes of government
(1) Legislative privilege §1454
Federal and state legislative members are constitutionally privileged to utter
defamations while on the floor or in committee sessions, etc. There is no
relevancy requirement.
(2) Judicial privilege §1456
Any participant in a judicial proceeding is privileged as to matter relevant to
the issue at hand. Judicial proceedings include hearings, depositions, etc.
Some authority extends the privilege to communications preliminary to a
proposed judicial proceeding. The privilege also includes administrative
hearings.
(3) Executive privilege §1460
Top-rank, policymaking executive officers are privileged if the matter is
relevant to performance of official duties. Some states include lesser-ranking
officials.
b. Domestic privilege §1461
Either spouse is privileged to utter defamations of third parties to the other
spouse.
4. Common Law Conditional or Qualified Privileges
a. Recognized conditional privileges
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(1) Inferior legislative bodies and inferior executive and administrative

officers §1463
The modern view gives such bodies and officials absolute privilege, but some
states retain conditional privilege.
(2) Protection of private interests §1464
Requirements for the privilege are:
(a) A reasonable belief that an important interest is threatened (interest
can be own interest, interest of third person, or interest of person to
whom statement is published);
(b) The statement is reasonably relevant to the interest protected;
(c) A reasonable belief that the person to whom the statement is
published can protect the interest; and
(d) There must be some relationship between the publisher and the
person to whom the statement is published. If no relationship, then it
must be in response to a request.
(3) Protection of public interest §1473
A statement is privileged if D reasonably believes utterance is necessary to
protect a public interest and the person to whom it is published is
empowered to protect the interest (e.g., statement to police).
b. Conditional privilege may be lost through bad faith or
abuse §1475
There is no privilege where: (i) the statement is motivated solely by malice and
intent to injure P, (ii) there is excessive publication (i.e., beyond that necessary to
accomplish purpose of privilege), or (iii) there is a lack of honest belief in the
statement’s truth (minority requires reasonable belief as well if assertions are
made in credit standing cases; some courts also hold that a speaker seeking to
protect the public interest must reasonably believe the statement).
5. Fair Comment Privilege §1483
Before constitutional case development, the majority protected critics of matters of
public interest if their criticism was based on true facts and expressed honestly
believed opinion. The minority extended the privilege even if facts were incorrectly
stated—which played a role in the constitutional developments discussed infra.
6. Record Libel Privilege §1486
Reports of judicial, legislative, or executive proceedings are privileged if fair and
accurate.
a. Nonofficial proceedings §1487
Some courts extend the privilege to reports of nongovernmental public meetings
in which there is a general interest (e.g., political or medical conventions).
b. Official but nonpublic documents §1488
Some courts extend the privilege to nonpublic official documents (e.g.,
LIX
government files), but at least one court has refused to extend it to reports of
foreign governments.
c. How privilege is lost §1490
The privilege is lost when D’s report is inaccurate. D need not believe that the
statement was truthful (e.g., accurate report of an official’s lies is privileged).
7. Federal Preemptive Privileges §1493
Radio and TV stations are not liable for defamation in a campaign speech. Also,
labor laws are held to preempt state defamation laws as to defamatory statements
published during labor disputes.
8. Defenses of Republishers §1498
Each republisher must establish his own defense.
a. Exception—intermediary §1499
Those under a duty to dispatch messages (e.g., telegraph company) are privileged
to transmit defamations whether or not they believe them.
b. Media reliance on usually reliable source §1500
Most states have granted newspapers a conditional privilege to reprint wire
service stories and syndicated features.
c. Media reports of statements made by others §1501
Some courts have granted the media a constitutional privilege called “neutral
reportage” to permit the media to cover a story in which important persons or
groups accuse others of improprieties.
9. SLAPP Suits §1502
Some states have adopted laws requiring courts to dismiss on motion libel complaints
in cases involving public issues unless the court concludes that there is a probability
that P will prevail.
H. CONSTITUTIONAL PRIVILEGES
1. In General §1503
Under the First Amendment, in certain instances the interest in freedom of
expression is held to outweigh the interest in protecting reputation, and hence the
defamation is privileged. The constitutional protection available in defamation cases
depends on the status of P (i.e., whether P is a: (i) public official, (ii) public figure, or
(iii) private person).
2. Public Ps §1507
The highest level of protection has been granted for statements concerning public
officials or public figures.
a. “Public officials” §1508
Public officials are persons who have substantial responsibility over government
affairs.
b. “Public figures” §1512
A person who is not a public official may be deemed a public figure: (i) if she has
achieved such pervasive fame or notoriety that she becomes a public figure for
all purposes and contexts; or (ii) if she voluntarily
LX
enters or is drawn into a particular public controversy, and thereby becomes a

public figure for that limited range of issues.
(1) Limited purpose public figures §1514
Courts tend to use three steps in identifying “limited purpose” public figures:
(i) isolating the particular public controversy; (ii) deciding if P has voluntarily
assumed a central role in that controversy; and (iii) finding the alleged
defamation germane to P’s participation in the controversy. Not every person
who seeks government aid or draws attention by some voluntary behavior
becomes a “public” P (e.g., scientist applying for federal grant does not
become a public figure by applying for the grant).
(a) Involuntary public figures §1516
The Supreme Court has indicated that it might be possible for people to
become public figures through no purposeful action of their own, but
considers such instances to be exceedingly rare.
c. Constitutional standard in cases involving public Ps §1517
Ps who are public officials or public figures must prove that the false defamatory
statement was published with actual malice; i.e., knowledge of falsity or
reckless disregard for the truth.
(1) What constitutes “knowing or reckless falsity” §1518
P must show that D was subjectively aware that the statement was false, or
that he was subjectively reckless in making the statement.
(a) Motive to harm insufficient §1519
It is not enough that D is shown to have acted with spite, hatred, ill will,
or intent to injure P.
(b) Negligence insufficient §1520
“Reckless” conduct is not measured by a reasonable person standard.
There must be a showing that D in fact entertained serious doubts as
to the truthfulness of the publication.
(2) Proving “knowing or reckless falsity”
(a) Burden of proof §1523
P must prove actual malice with convincing clarity (e.g., show that D
relied on an extremely questionable source, but mere failure to
investigate or reporting on a story known to be incomplete might not be
sufficient).
(b) Discovery §1528
To prove D’s state of mind, P may ask D about it, even if D is a
reporter or editor; i.e., the First Amendment does not protect a reporter
or editor from inquiries about his motives for reporting, belief in the
accuracy of his sources, etc.
LXI
d. Damages §1530
When P establishes “knowing or reckless falsity” against a media D, she may
recover any damages permitted under state law.
3. Private Ps §1531
A P who is neither a public official nor a public figure is a private person. A lower
constitutional standard applies in such cases.
a. Constitutional limitation §1532
Liability without fault cannot be imposed, at least where a matter of public
concern is involved. Where the statement is such that substantial danger to
reputation would be apparent to a reasonably prudent editor or broadcaster, P
must prove either knowledge of falsity, recklessness as to truth, or negligence as
to falsity.
(1) Caveat—matters of private concern §1534
If the matter is of purely private concern, a private P may recover presumed
and punitive damages without proving actual malice.
b. Applicable standard of liability §1535
The Supreme Court has left it to the states to determine standards for liability to
private Ps (in matters of public concern), as long as they do not apply strict
liability. Almost all states have set the standard for liability at the level of
negligence. A few states require knowledge of falsity or reckless disregard for the
truth.
c. Burden of proving falsity §1539
A private P has the burden of proving falsity, at least where the speech is of
public concern.
d. Damages §1540
If D was negligent in ascertaining or reporting the truth (but had neither actual
knowledge of falsity nor reckless disregard for the truth), a private P can recover
damages, which are limited to actual injury. Actual injury is not limited to out-of-
pocket losses. If the defamation was deliberate or reckless, P is entitled to
whatever recovery is permitted under state law.
IX. WRONGFUL INVASION OF PRIVACY
A. INTRUSIONS INTO P’S PRIVATE LIFE OR AFFAIRS

P must prove an intentional or negligent and highly offensive intrusion by D into P’s
private life, and causation.
2. Protected Area of Seclusion §1545
There are areas of P’s life that P can reasonably expect will not be intruded upon.
a. Distinguish—no privacy for corporations §1547
Corporations do not have traits of a highly personal and sensitive nature and so
cannot be Ps in such cases.
LXII
3. Types of Intrusion §1548

This may include any behavior that is intrusive including:
a. Intrusion onto P’s property; and
b. Nonphysical intrusions (e.g., secretly photographing tanning salon patrons
while they are nude).
4. Intrusion Must Be Highly Offensive §1552
The conduct must be highly offensive to a reasonable person.
5. Intent §1553
The conduct must be intentional, although D need not have intended it to offend P.
6. No Publication Necessary §1556
The interest protected is P’s “right to be let alone” and not P’s interest in not having
the information disseminated.
7. Causation §1557
D’s conduct must have been the cause in fact and the proximate cause of the
invasion of P’s interest and the ensuing damage.
8. Defense—Consent §1558
There is no cause of action if the intrusion is authorized or permitted unless the
intrusion falls outside P’s actual or implied consent.
9. Damages §1560
Pure emotional distress or mental anguish are sufficient damages; P need not prove
special damages.
10. Constitutional Protection §1561
State law may not impose liability on a third party who uses the fruits of proscribed
intrusion and publishes true statements of public interest.
B. PUBLIC DISCLOSURE OF PRIVATE FACTS

P must show a highly offensive public disclosure by D of private facts about P, no
legitimate public interest, fault in making the disclosure, and causation.
2. What Are “Private Facts”? §1563
The details must be private facts; they cannot appear as a matter of public record or
occur in public.
3. Publication Must Be Highly Offensive §1568
The details must be highly offensive to reasonable person (e.g., a newspaper article
on P’s recent, private sex change operation).
4. Must Be a “Public” Disclosure §1569
Disclosure must be to the public at large or to enough individuals that it is likely to
reach the general public.
5. No Public Interest (“Newsworthiness”) §1570
Even if D publicizes private facts about P, the publication is privileged if the
LXIII
facts are “newsworthy.” This includes any matter as to which there is a legitimate
public interest. This may be very broad when concerning voluntary public figures
and even involuntary public figures.
6. Fault §1577
D must have been at fault for the action that gave rise to the highly offensive
disclosure.
7. Causation §1578
Actual and proximate causation are required.
8. Defenses
a. Truth is no defense §1579
The gist of the tort is embarrassment; truth is irrelevant.
b. Consent §1580
Consent is a complete defense, but consent may be withdrawn before publication.
Note that if P voluntarily divulged facts to D, she will be barred from bringing
suit; failure to “keep secrets” is not a tort.
c. Constitutional privilege for media §1584
There is an absolute privilege regarding matters taken from official court records
that are accurately stated. If the matter was lawfully obtained from the
government, is truthful, and prohibition is not necessary to further a state interest
of the highest order, D is privileged to publish information (e.g., publication of
deceased rape victim’s name that was obtained through inadvertent release by the
police).
9. Damages §1587
Same as for intrusions, supra.
10. Privacy Action Rejected §1588
A few states do not recognize this action where true facts are involved.
C. APPROPRIATION OF P’S NAME OR LIKENESS

This involves the unauthorized use of P’s name or likeness for advertising or for
other commercial purpose, and causation. Some courts extend protection to items
beyond name or likeness (e.g., a robot that acted too much like TV quiz show
assistant Vanna White).
2. Right of Publicity vs. Right of Privacy §1595
If P is a celebrity, she is entitled to damages not so much for invasion of privacy but
for interference with her right of publicity.
3. Causation §1597
4. Defense—Newsworthiness §1598
Where P is a public figure or currently newsworthy, publication is not actionable
where D does not use the publication for commercial gain. However, the media has
no right to film or broadcast an entire commercial performance (interference with
right of publicity).
LXIV
5. Damages §1601
For celebrity Ps, P may recover the reasonable value of the use of P’s name or
likeness. For private Ps, emotional harm is likely to be the main element.
D. PUBLICITY PLACING P IN A “FALSE LIGHT”

P must show a publication by D that places P in a false light in the public eye,
knowing or reckless falsity if a newsworthy matter, and causation.
2. Publication §1604
Dissemination to a reasonable number of third persons is required.
3. Falsity Required §1605
The false light in which P is placed must be highly offensive to a reasonable person.
4. Distinguish—Defamation §1606
If the false light would affect P’s community reputation, a defamation action may
also lie.
5. Fault §1607
Newsworthy statements that put P in a false light are not actionable unless the
“knowing or reckless falsity” standard is met.
6. Causation §1610
7. Damages §1611
P may recover damages to reputation, emotional distress, and pecuniary damages.
E. CLAIMS INVOLVING PRIVACY OF THIRD PERSONS

1. Publications Regarding Living Persons §1612
P cannot recover for an invasion of privacy based on publicity concerning another
living person.
2. Publications Concerning a Dead Person §1613
There is no right of recovery by survivors (invasion of their interests) or by the
decedent. Note that if the invasion occurred during the decedent’s lifetime, then her
estate may be able to sue depending upon the survival statute in effect.
a. Celebrity’s right of publicity §1617
A celebrity’s right to exploit her name must be exercised during the person’s
lifetime.
F. RELATED TORTS §1619

Torts related to invasion of privacy include defamation and wrongful infliction of
emotional distress.
1. Breach of Confidential Relationship §1620
A preexisting relationship may be relied on by courts instead of using a privacy
approach (e.g., doctor breaches patient’s confidence).
LXV
2. Limitation on Causes of Action Under Uniform Act §1621

The Uniform Single Publication Act limits recovery to one single cause of action for
damages arising from a single publication (whether defamation or privacy claim).
X. OTHER TORTS
A. MISREPRESENTATION
1. Intentional Misrepresentation (“Fraudulent Misrepresentation” or
“Deceit”) §1623
The prima facie case requires a false, material representation of fact, known to be
false, made with intent to induce P’s reliance, with justifiable reliance to P’s damage.
a. Misrepresentation by D
(1) Affirmative misrepresentation §1624
A false, material representation of past or present fact is required.
(a) “Material” misrepresentation §1625
“Material” means a representation that would influence a reasonable
person in P’s position, as well as any representation that D knew this
specific P considered important.
(b) “Fact” §1626
A present state of mind or intention is a fact (however, failure to
perform a promise does not by itself prove that the promisor did not
intend to perform when she made the promise).
(c) “Representation” §1628
The representation may be oral, written, or by conduct (e.g., turning
back mileage indicator).
(2) Fraudulent concealment of facts §1629
This is sufficient misrepresentation except where the transaction is marked
“as is” or where P is charged with knowledge of concealed facts.
(3) Failure to disclose facts §1630
This is not a misrepresentation, except:
(a) Fiduciary relationship §1632
Where P and D are in a fiduciary relationship.
(b) Half-truths §1633
Where D knowingly made an incomplete, ambiguous, or halftrue
statement.
(c) New information §1634
Where D later finds a prior statement to be false and knows P is relying
on the earlier statement.
(d) Reliance §1635
If D knowingly makes a false statement with no intent to induce
reliance but later finds out P is about to act on it.
LXVI
(e) Sale of property (modern trend) §1636

Where the seller fails to disclose material facts unknown and not readily
accessible to the buyer (e.g., house is infested by termites).
b. Scienter §1637
Scienter refers to D’s knowledge of the falsity, or knowledge that she had an
insufficient basis for determining the truth of the representation. The enormity of
an unreasonable belief may allow a jury to infer lack of honest belief. Most
courts require Ps to prove fraud by clear and convincing evidence.
c. Intent to induce reliance §1640
Generally, D must have intended to induce reliance of P or a class of persons to
which P belongs. However, there is no need to show intent to induce P’s
particular reliance where there is “continuous deception” (e.g., mislabeling of
product).
d. Causation §1642
The misrepresentation must play a substantial part in inducing P to act as he did
(i.e., actual reliance).
e. Justifiable reliance by P
(1) Reliance must be foreseeable §1643
P’s reliance must be intended by D or reasonably foreseeable.
(2) Whether reliance is “justified” depends on type of representation
(a) Representations of fact §1645
Reliance on material misrepresentations of fact is always justified
except where obviously false; P is under no duty to investigate.
(b) Representations of opinion §1647
Reliance on misrepresentations of opinion, value, or quality is not
justified except where: (i) D has superior knowledge not available to
P; (ii) D owes a fiduciary duty to P; (iii) D has secured P’s confidence
by reason of special relationship or affiliation; or (iv) D is apparently a
disinterested third party offering advice on the transaction P is
contemplating with another without disclosing that D has a financial
interest in the deal.
(c) Representations of law §1652
P’s reliance on misrepresentations of law is justified when the
representation is in the nature of a fact rather than opinion.
f. Damages §1654
Actual damages must be shown.
2. Negligent Misrepresentation §1655
The prima facie case requires negligent misrepresentation by D toward a particular
group and P’s justifiable reliance to his damage.
LXVII
a. Misrepresentation—made in business or professional

capacity §1656
This is the same as in intentional misrepresentation but must normally be made
by one in the business of supplying information for others in business
transactions. Where volunteered by a nonprofessional or in a noncommercial
setting, liability results only if the representation is not honestly made.
b. Negligence toward particular P §1659
If D provides information with intent that P rely on it in a business transaction or
knows that such reliance is likely, D is under a duty to exercise reasonable care to
discover the truth or falsity of representations.
(1) To whom duty owed §1660
D must have contemplated the reliance of a particular P or group of persons
to which P belongs. It is sufficient if D knew the recipient would
communicate to a specific P or group.
(2) Professional liability §1663
Although professionals are always liable to clients for negligently prepared
reports and documents, there is disagreement as to how far liability may be
extended to third parties.
(a) Traditional view §1664
Under the traditional view, an accountant was not liable to third parties
for negligently prepared statements unless there was essentially privity
between the accountant and the third party.
(b) Modern views §1665
Three different approaches have emerged:
1) New York (“linkage”) view §1666
Under the New York view, for an accountant (D) to be liable to a
noncontractual party (P), D must be aware that a known party
intended to rely on the financial statement, and some conduct must
link D to P in a way suggesting the accountant’s willingness to incur
a duty to the creditor.
2) California (“specific foreseeability”) view §1667
Under the California view, an accountant is liable if she knows that
a specific third party plans to rely on the statement for a transaction
whose nature and extent are known to the accountant.
3) New Jersey (“general foreseeability”) view §1668
A few states follow the New Jersey view and hold that an
accountant may be liable if the third party (P) belongs to a class
who could generally be foreseen to receive and rely on the
statement.
(c) Distinguish—liability based on statute §1669
Apart from common law negligence, liability to third persons
LXVIII
may be based on D’s violation of statutory duties to provide accurate
information. Such duties run to the general public, so it is not necessary
to show D’s knowledge that a particular P would rely.
c. Cause in fact (actual reliance)
This is the same as in negligence.
d. Justifiable reliance §1670
This is the same as in intentional misrepresentation, except unreasonable failure to
investigate may be contributory negligence.
e. Proximate cause
This is the same as in negligence.
f. Damages
See infra.
3. Misrepresentation Predicated on Strict Liability (“Innocent
Misrepresentation”) §1671
Some courts impose strict liability in connection with the sale of land or chattels,
even if the representation was “innocent.” Liability is analogous to breach of
warranty and unjust enrichment situations. There must be a false representation
made with intent to induce P’s reliance in a business transaction, and P must
justifiably rely thereon to her financial detriment and to D’s gain.
4. Defenses
a. Contributory negligence §1675
This is a defense to negligent misrepresentation but not to intentional or strict
liability misrepresentation.
b. Assumption of risk §1676
This is a defense to strict liability and negligent misrepresentation.
c. Exculpatory contracts §1677
Such contracts for intentional conduct are void in most states.
5. Measure of Damages
a. Benefit-of-bargain rule (majority) §1679
P recovers the value of the property as contracted for, less the actual value
received.
b. Emotional distress §1682
Some states allow damages for emotional distress if it is a natural and proximate
consequence of the misrepresentation.
c. Punitive damages §1683
These may be awarded for intentional misrepresentations made with malice
(intent to harm).
B. INJURIOUS FALSEHOOD
P must prove a false statement by D disparaging P’s business, property, etc.,
intentionally made to others about P causing P injury, and special damages.
LXIX
2. False Statement §1685

P must prove D published a harmful statement and that the statement was false.
3. Publication to Third Persons §1686
This is the same as for defamation. It may be oral or written.
4. Statement Disparaging P’s Business, Property, Etc. §1688
The statement must be reasonably likely to discourage others from dealing with P or
must otherwise interfere with P’s relations with others to P’s disadvantage.
a. Statements denying P’s ownership (“slander of title”) §1689
A statement casting doubt on title is sufficient.
b. Statements denying quality of P’s property (“trade libel”) §1690
A statement attacking the quality of property is sufficient.
c. Statements derogatory of P’s business in general (“trade
libel”) §1691
Statements derogatory of P’s business without reflecting on title or quality of
property (e.g., “service in P’s restaurant is poor”) are sufficient.
d. Statements interfering with nonbusiness relations §1692
Statements that do not affect any commercial enterprise may still be actionable.
e. Statement need not be defamatory §1693
The statement need not be defamatory as long as it is false. But not every
imputation against a business or its product implies personal inefficiency in P.
5. Intent §1695
D must intend to cast doubt on P’s property or financial interests. Motive is
irrelevant, and under the modern view scienter is required.
6. Causation and Damages §1699
Actual and proximate causation are required. Actual (“special”) damages must be
shown.
a. Slander of title §1700
P can recover lost profits from a contemplated sale and expenses of legal
proceedings to remove the cloud on title.
b. Trade libel §1701
Loss of profit from specific customers is recoverable. If not provable, courts may
permit P to show a general decline in business. Consequential and parasitic
damages (e.g., for mental distress) are not recoverable.
7. Defenses
a. Consent §1702
Consent is a defense.
b. Truth §1703
The prima facie case requires falsity; thus, it is not necessary to consider truth as
a defense.
LXX
c. Privilege §1704
The same privileges to defamation are recognized as privileges to disparagement
(see supra, §§1453 et seq.).
(1) Judicial proceedings §1705
The recording of a “lis pendens” is absolutely privileged.
(2) Protection of private interests §1706
There is a conditional privilege to protect one’s own interests or those of
another.
(a) Competitors §1707
D is privileged to make general claims about her own product but
cannot make specific false claims about P’s product or business.
(b) Noncompetitors §1708
D is protected if she honestly believed the truth of the statement in a
situation covered by defamation privileges.
C. INTERFERENCE WITH ECONOMIC RELATIONS

1. Interference with Contract—Prima Facie Case §1711
P must prove words or action by D intentionally undertaken to interfere with existing
contract of P, causing P injury, and special damages.
a. Nature of contract §1712
This action applies to any type of contract (except contracts to marry).
(1) Illegal contracts §1713
Contracts that are illegal or contrary to public policy do not qualify for
protection.
(2) Unenforceable contracts §1714
Unenforceable contracts (e.g., contracts that run afoul of the Statute of
Frauds) can be the subject of this tort. A few courts are contra.
(3) Contracts terminable at will §1715
These can be the subject of this tort under the general view. However, issues
of damages and privilege may be affected.
b. D’s interference §1716
The interference must be active.
(1) Breach not required §1717
Breach is not required; it is sufficient if performance is made more difficult.
(2) Collective action §1718
Concerted action by a group (e.g., boycott) may give rise to liability, subject
to a possible privilege.
(3) Whether D may be a party §1719
Generally, if D is a party to the contract, the action will not lie. But
LXXI
an officer who induces his corporation to breach a contract may be liable.

(a) Minority allows action for tortious breach of
contract §1721
A few states permit a party to a contract to sue the other party in tort
for a breach motivated by an interest other than the contract
relationship (e.g., to help D acquire a competitive benefit over P in
some other matter). Also, some states recognize a tort action for breach
of the implied covenant of good faith and fair dealing where there is a
special relationship between the contracting parties.
(b) Majority allows suit for wrongful discharge §1723
The majority view is that a tort action lies for discharging P for an
improper reason (e.g., refusal to participate in an illegal price-fixing
scheme) even though the hiring was at will.
c. Intent §1724
D must be aware of the contract and intend to cause interference therewith. The
cases have refused to impose liability for mere negligent interference with
contractual relationships.
(1) Master-servant cases §1725
A few courts permit recovery by an employer for negligent injury to an
employee.
d. Causation and damages §1726
Actual and proximate cause are required. The modern view seems to allow P to
recover for actual and consequential damages, harm to reputation, mental
suffering, and punitive damages.
(1) Offset recovery for breach of contract §1728
Any recovery against the breaching party must be offset against damages
recoverable from D who induced the breach.
e. Defenses—privilege §1729
To be privileged, D must use reasonable means and have a justifiable purpose.
(1) Ends must be valid
(a) Furtherance of nonpersonal interests §1731
If D has no financial interest, she is privileged if predominantly acting
for a social good or to protect a third person’s interest.
(b) Furtherance of D’s own financial interest §1733
If D has a financial interest, she may further her own interests only if
seeking to protect existing economic interests rather than a prospective
advantage.
1) Exception §1736
A competitor is privileged to induce third persons to end contracts
terminable at will.
LXXII
(2) Means must be proper §1737

D is limited to honest persuasion—no lies or violence. Unreasonable and
coercive economic persuasion defeats the privilege. Improper means may
support liability for defamation or injurious falsehood, as well as wrongful
interference with contractual relations.
(3) Burden of proof §1740
Most courts require D to show proper justification and P to show D’s
conduct was wrongful by showing more than the interference itself.
2. Intentional Interference with Prospective Economic
Advantage §1741
The right to pursue business without unjustifiable interference is protected.
a. Prima facie case §1742
This is the same as interference with contract except no existing contract need
be shown.
(1) D’s act §1743
The interfering act consists of: (i) inducing a third party not to enter into a
prospective relationship with P, or (ii) preventing P from acquiring the
prospective relationship.
b. Privilege §1745
D is privileged to use any bona fide competitive means to solicit customers.
c. Distinguish—interference with noncommercial expectancies (e.g.,
prospective gifts) §1748
The modern trend allows recovery where there is a strong probability that the
expectancy would have been realized (e.g., fraudulently inducing testator to
disinherit).
3. Negligent Interference with Prospective Economic Advantage §1751
A prima facie case consists of the same elements as in a negligence case. Duty is the
critical factor because P’s interest in protection from economic harm has been
considered too remote to impose a duty of due care.
a. Modern trend §1754
Some courts impose a duty of care when D can reasonably foresee harm to a
specific P.
(1) Attorney liability §1755
Most courts hold that attorneys may owe duties of due care to persons other
than their clients in a negotiated deal.
(2) Limitation §1756
A duty of due care is imposed only where a D knows his conduct will affect
a pinpointed P.
b. Other elements §1757
Once duty is found, the other elements are analyzed as in regular negligence
cases.
LXXIII
D. UNJUSTIFIABLE LITIGATION
1. Malicious Prosecution—Prima Facie Case §1759
P must prove initiation of criminal proceedings against P that terminated in P’s favor
and for which there was no probable cause and an improper purpose, all to P’s
damage.
a. Instigation of proceedings by D §1761
Proceedings may be begun by a charge to police that causes issuance of a warrant
or indictment; it is sufficient if D caused a third person to institute malicious
prosecution. However, merely providing full and truthful information to a public
officer is not instigation of proceedings.
b. Proceedings terminated favorably to P §1764
There must be a decisive termination in P’s favor (e.g., P’s acquittal after trial,
case is dismissed for lack of evidence).
c. Lack of probable cause §1766
There must be a lack of honest or reasonable belief in the truth of the charge. An
attorney is not liable if a reasonable attorney would have brought the claim.
(1) Lack of probable cause cannot be inferred from an improper purpose; it
must be proved independently.
(2) An indictment or commitment by a magistrate is prima facie evidence
of probable cause.
(3) A conviction is usually conclusive evidence of probable cause even if
overturned on appeal.
(4) Reliance on advice of counsel conclusively establishes probable cause if
there was full disclosure of facts.
d. Improper purpose §1773
D must have acted for some purpose other than bringing a guilty person to
justice. An improper purpose may be inferred from a lack of probable cause.
e. Causation and damages §1775
P can recover for the cost of defending the criminal suit, embarrassment, etc.,
and punitive damages.
f. Defenses §1776
Valid defenses include guilt of P. There is an absolute privilege for judges,
prosecutors, and other law enforcement officers.
2. Malicious Institution of Civil Proceedings §1778
This action requires the same elements as malicious prosecution but has been
extended to civil actions in many states. (Many courts reject this action to encourage
resort to courts.)
a. Nature of proceedings §1779
This tort extends to any noncriminal proceeding (recordation of lis pendens
suffices even though privileged regarding slander of title).
LXXIV
b. Effect of prior verdict §1783

A prior verdict in favor of P is res judicata.
c. Causation and damages §1785
The same rules apply as when the unfounded case was a criminal prosecution. A
minority view is that P must show special damages to person or property. Under
this view, there is no claim when P seeks to recover only attorney’s fees.
3. Malicious Defense §1787
A few states have created a tort mirroring malicious institution cases for instances
where D raises a totally unjustified defense.
4. Spoliation of Evidence §1788
Most courts facing the issue have created a cause of action where a party hides or
destroys evidence.
5. Abuse of Process §1791
This tort is committed by the intentional use of a court process for a purpose for
which it was not intended. A prima facie case involves only an intentional misuse
and damages to P.
(i) P need not show D lacked probable cause.
(ii) Proceedings need not have terminated in P’s favor.
(iii) When process has been abused, P may counterclaim in the same action for
damages arising from the abuse.
a. Who may sue §1796
The action may be maintained by any third party whose property was injured by
the proceedings (e.g., suit causing attachment of X’s property) as well as by the
other party to the proceedings.
(i)
Gilbert Exam Strategies
A course in Torts deals with a number of distinct and separate legal problems that are to a
large extent governed by dissimilar principles and doctrines. For example, the rules governing
liability in a battery case are entirely different from those governing liability in a case
involving the sale of contaminated foodstuffs; yet both are “torts” problems. In the battery
case, the applicable rules reflect a policy judgment to deter the defendant’s wrongful
conduct, even though the plaintiff may not have been physically injured. In the foodstuffs
case, the principles governing liability seem to reflect a policy judgment to provide
compensation to an injured consumer, with less attention to whether the defendant was at
fault.
This interplay between the policies of providing adequate compensation to an injured
plaintiff, and of deterring wrongdoers underlies much of the law of Torts. In effect, when
the reasons for taking money from the defendant and giving it to the plaintiff coincide, tort
liability will follow. When either reason is missing, the question of liability is likely to be
difficult. In determining the relative strength and applicability of these policies, you need to
consider certain factors.
Use the following analytical approach to focus on these factors and determine the key issues
for you to analyze in answering an exam question. (Also review the key exam issues found
at the beginning of each chapter and the Exam Tips interspersed throughout the Summary.)
1. Identify the Tort

The nature and scope of liability that may be imposed, as well as the matters that may be
considered by way of defense, vary significantly depending upon which particular tort is
involved. Consequently, the first thing you need to do is to determine from the facts
which particular tort (or torts) may be a possible basis for liability.
Keep in mind that there is no fixed, rigid classification of recognized torts. While there
are a number of “classic” tort situations (e.g., battery, false imprisonment, defamation,
etc.), there are also many cases that do not fit into the “classic torts” but may still be
actionable (see infra, §§1622 et seq.). In such cases, and indeed with all tort problems,
the nature and scope of liability depend on your determination of the following two
factors:
a. The nature of plaintiff’s interest that has been injured

There are many different types of protectable interests—one’s person, property,
reputation, emotional well-being, advantageous business relationships, etc. You must
determine exactly which interests have been injured, because the scope of liability
may vary radically (e.g., the scope of liability that will be imposed on a defendant for
a negligent injury to the plaintiff’s body is greater than that imposed for negligent
injury to the plaintiff’s economic well-being).
(ii)
b. The nature of defendant’s conduct

The second crucial factor in identifying the tort is the concept of fault: Did the
defendant act intentionally to cause the result that occurred? Or was the conduct
negligent? Or was the defendant’s conduct blameless under the circumstances? As
you might expect, the greater the defendant’s “fault” in causing the plaintiff’s injuries,
the greater the extent to which liability will usually be imposed on the defendant for
his acts and the fewer the matters that may be permitted by way of defense. For
example, if the defendant intentionally injures the plaintiff’s person, the defendant
will almost certainly be held liable for all resulting harm, whether or not foreseeable;
whereas if the defendant’s conduct was merely negligent, liability may be limited to
foreseeable injuries (infra, §§442 et seq.).
2. Apply the Prima Facie Case

After you have identified each interest of the plaintiff that has been invaded, and
evaluated the defendant’s conduct with regard to that interest, you can establish the
particular area of tort liability involved—e.g., was there an intentional invasion of the
plaintiff’s real property (“trespass to land”), negligent injury to the plaintiff’s person
(“negligence”), etc. Don’t go into any more elaborate “definition” of the particular tort
involved. Rather, focus your attention on the prima facie case of that tort—i.e., the
essential elements that the plaintiff must establish as a basis for liability. These essential
elements “define” the tort.
In answering your question, analyze the facts given to make sure that each element of
the prima facie case is present. Remember that, in some situations, a single wrongful act
by the defendant (e.g., false publication regarding the plaintiff’s private life) may
conceivably be the basis for several entirely different tort theories (e.g., defamation,
invasion of privacy, infliction of emotional distress). Hence, consider the prima facie
case of each tort that could conceivably be in issue. In close cases, weigh the policy
factors of compensating the plaintiff and deterring the defendant in the particular tort
involved.
3. Consider Defenses or Limitations on Liability

After you have found all elements of the prima facie case, look for any defenses that
might be available to the defendant. Remember that the matters that may be asserted by
way of defense, or to mitigate or limit liability, will vary with the two factors that
“identify” the tort—the nature of the plaintiff’s interest and the nature of the
defendant’s conduct. For example, where the defendant negligently causes physical
injury to the plaintiff’s person, the defendant may prove by way of complete or partial
defense that the plaintiff was also negligent; whereas, if the defendant had intentionally
caused the same injuries, this might not be a permissible defense.
4. Note—Evaluate the Facts
Often, the rules of law in Torts are easier to state than they are to apply. This is because
Torts problems invariably involve difficult factual issues that must be resolved before
(iii)
the applicable rules of law can be determined. For example, the prima facie case of
certain torts requires a finding of “unreasonable” conduct by the defendant; the rules of
causation may be based on determinations of “foreseeability” of harm; various privileges
and defenses are lost by “excessive” or “unreasonable” acts; etc. However, these are all
ultimate conclusions that can be reached only after careful evaluation of the facts given
in the particular problem. For a good answer, avoid discussing these matters in the
abstract, or making snap judgments as to the outcome. Rather, consider all operative
facts in the problem, together with the logical inferences to be drawn from them. Be sure
to make each step of this reasoning explicit in your answer. Remember, a conclusion
concerning “reasonableness,” “foreseeability,” etc., will be only as good as the factual
analysis upon which it is based.
5. Other Considerations
a. Parties
Be sure of the parties. Be certain you know who is the plaintiff and who is the
defendant. In fact situations involving multiple parties, consider the rights and
liabilities of each party. As to each plaintiff, consider and analyze separately each
interest that has been invaded; and, as to each defendant, analyze separately the
nature of that person’s conduct and responsibility for the plaintiff’s injuries.
b. Relationship
Check the relationship, if any, between the parties. This may be important for these
reasons:
(1) There may be a basis for imputing liability from one to another (e.g., master-
servant cases; see infra, §609);
(2) If there is a marital or family relationship between the plaintiff and the
defendant, there may be possible immunity from suit (see infra, §§1211 et
seq.);
(3) The relationship may increase the amount of care owed by one party to the
other (e.g., a common carrier’s higher standard of care owed to a passenger; see
infra, §582); or
(4) The relationship may decrease the standard of care owed (e.g., a landowner’s
limited duty to social guests; see infra, §§650 et seq.).
c. Effect of death of party
Whenever any party—plaintiff or defendant—has died subsequent to commission of
the tort, consider problems of survival of causes of action and the applicability of
wrongful death (see infra, §§1150 et seq.).
d. Statutes
Although the law of Torts is primarily judge-made, in certain areas (e.g., “guest”
(iv)
statutes, wrongful death statutes, survival statutes, comparative negligence statutes),

legislative enactments are found so frequently that any analysis of a problem in such
areas must include a discussion of the effect of the relevant statutes.
6. Caution—One Fact May Raise (and Influence) Several Issues

Perhaps the greatest danger in Torts problems lies in treating the various issues and
elements as separate, when they are usually interrelated. For example, if P decides to
cross a street in the face of oncoming traffic, this single fact bears significantly on a
number of legal doctrines that may be applicable—e.g., D’s duty under the
circumstances, P’s own negligence, and P’s assumption of the risk. A correct analysis
will emphasize that these various issues are related and dependent on each other:
Whether P assumed the risk or was negligent is related to and dependent on what duty, if
any, D is held to owe to P under the circumstances. Keep in mind, then, that a single fact
may influence more than one issue in the case, and that each issue should be treated as
interrelated with others in the problem.
(v)
Introduction
This Summary is organized around two main themes. First, it considers the basic clusters of
tortious harms—personal injury, property damage, and invasion of other interests such as
reputation. Second, it dicusses the three main bases of liability—intentional harm, negligent
harm, and torts based on strict liability. Thus, the progression is from intentional infliction of
personal injury and property damage, to negligent infliction of such harm, and then to
situations in which strict liability will lie. The Summary then considers protection of the
plaintiff’s other interests: reputation, privacy, economic interests such as freedom from
interference with contract relationships, and protection from unjustified litigation.
Remember that tort law is always concerned with both subjects at once—i.e., what interests
of the plaintiff should be protected from what kinds of interferences by the defendant.
Chapter One:
Intentional Torts
CONTENTS
Key Exam Issues

A. Torts to the Person §1
B. Defenses and Privileged Invasions of Personal Interests §100
C. Torts to Property §182
D. Defenses and Privileged Invasions of Land and Chattels §237
Key Exam Issues
The following basic framework should be used to analyze intentional torts, which are among
the most basic instances of the imposition of tort liability.
1. First identify all the possible torts. Oftentimes, a fact situation creates the possibility of
many different torts. You may immediately see one tort (e.g., a battery), but don’t stop
there. Consider what other torts are suggested by the facts. In other words, sort the facts
out into the various cubbyholes of intentional torts.
2. Then consider the prima facie case of each tort and see whether you have all the
elements of each tort. The prima facie case is usually quite simple—the only common
problem may be the element of intent. Remember to apply the term “intent” to the
result that occurred, not to the act the defendant engaged in; i.e., the defendant must
have desired that a particular result occur or have been substantially certain that such a
result would occur.
3. After you have found that the defendant has committed a particular tort, think about
whether the defendant had a privilege or defense for his action. (Note that if there is no
plausible privilege or defense, the defendant has behaved very badly indeed.) Issues in
this area may present analytical difficulties by overlapping in a particular fact situation.
For example, if you are attacked on the street, you are privileged to engage in appropriate
self-defense, but what kind of force can you use without losing the privilege? If you
disarm your assailant, has the privilege ended? Before the attack, did the assailant
challenge you to a fight and did you “consent” to the fracas? The facts may slide back
and forth among the various privileges. Be sure to remain flexible in your thinking about
which privilege or privileges apply to the facts.
A. Torts to the Person
1. Battery [§1]
Prima facie case:
• Act by Defendant
• Intent
• Harmful or Offensive Touching
• Causation
• (Lack of Consent—discussed as a defense, see infra, §§100 et seq.)
a. Act by defendant [§2]

The word “act” as used in intentional torts means an external manifestation of
the actor’s will; it refers to some volitional movement by the actor of some part of
his body. Thus, if the defendant intentionally drove his automobile into the plaintiff,
the “act” complained of would not be the driving of the automobile, but rather the
movement by the defendant of his arms and legs in setting the automobile into
motion and directing it at the plaintiff. [Restatement (Second) of Torts (“Rest. 2d”)
§2 (1965)]
(1) Unconscious acts [§3]
Because of the requirement of a “volitional” movement, the movements of
persons having an epileptic seizure or of persons asleep or under the influence of
drugs are not generally sufficient “acts” for the purpose of establishing liability
for intentional torts. [Lobert v. Pack, 9 A.2d 365 (Pa. 1939)]
(2) Reflex actions [§4]
Instinctive action, when there is no time to think and choose, does not constitute
volitional movement and therefore cannot be wrongful conduct. [Collette v.
Boston & Manchester Railroad, 140 A. 176 (N.H. 1928)] Thus, if a person
blinks her eyelids when a stone is thrown at her, the blinking is not an “act”
because it is purely reflexive. But if someone, finding himself about to fall,
stretches his hand out to save himself, the stretching out of his hand is an “act”;
his mind has grasped the situation and dictated a muscular contraction in an
effort to prevent the fall.
(3) Acts by incompetents [§5]
Persons who are not legally competent are still capable of volitional conduct;
i.e., insane persons or minors may be held liable for their acts. [Goff v. Taylor,
708 S.W.2d 113 (Ky. 1986); McGuire v. Almy, 8 N.E.2d 760 (Mass. 1937)]
b. Intent [§6]
To make out a case for battery, the plaintiff generally must show that the defendant
did the “act” with the intent to inflict a harmful or offensive touching on the
plaintiff or a third person. [Rest. 2d §13(a)]
(1) Test—desire or belief in substantial certainty [§7]

Whether the defendant had the requisite intent is measured by whether he acted
with the desire to cause the touching or believed that a touching was
substantially certain to result from his act. Courts are split on whether the
plaintiff must also prove that the defendant intended offense or harm or merely
that the defendant intended to cause a touching, which might be
offensive or harmful. [Frey v. Kouf, 484 N.W.2d 864 (S.D. 1992); Garratt v.
Dailey, 279 P.2d 1091 (Wash. 1955)]
Example: D shoved P, a young child, to get her out of the area in which
some boys were playing. P fell and broke her elbow; D has committed a
battery. Even if D did not desire the touching, he believed that an offensive (if
not harmful) touching was substantially certain to occur. [Baldinger v. Banks,
26 Misc. 2d 1086 (1960)]
(a) Test is subjective [§8]
The issues of “desire” and what the defendant “believed” to be substantially
certain to occur turn on the subjective consideration of what was in the
defendant’s mind when he acted. Although juries may make inferences
about the defendant’s state of mind from objective facts, the basic question
is not what a reasonable person would have desired or believed, but what
the particular defendant in fact desired or believed.
(2) Motives immaterial [§9]
The defendant’s motive for acting generally is immaterial to the question of
whether the act was sufficient to establish a prima facie case. As in criminal law,
a distinction must be made between “malice” and “intent.” “Malice” refers to the
defendant’s motives (why the defendant acted as he did). Tort law is concerned
only with whether the defendant had the requisite intent under the “desire or
belief in substantial certainty” test, above.
(a) But note
If “malice” (intent to injure) exists, the defendant may be held liable for
punitive damages (see below).
(3) Transferred intent doctrine [§10]
For historical reasons, in certain circumstances a different intent is sufficient to
make out a prima facie case for battery. Battery arose out of the old common
law form of action called “trespass.” Trespass gave rise to four other modern
actions: assault, false imprisonment, trespass to land, and trespass to chattels.
Under the doctrine of transferred intent, if the defendant acts intending to cause
any one of these harms to a person, the defendant will be liable on an intentional
tort theory if any of the five harms occurs to that person or to another person
(the plaintiff)—even though the other person is unexpected and the harm is
unexpected.
Example: D attempted to strike X, who ducked. The blow hit P, who had
unexpectedly appeared. Held: Because D had committed an assault on P, D
has committed a battery on P. [Carnes v. Thompson, 48 S.W.2d 903 (Mo.
1932)]
Example: D unlawfully shot at X’s dog (trespass to chattels) and hit P. Even
though D had no reason to know that anyone might be in the area, D
committed a battery on P. [Corn v. Sheppard, 229 N.W. 869 (Minn. 1930);
and see Alteiri v. Colasso, 362 A.2d 798 (Conn. 1975)—attempted assault on
X led to battery on P]
(a) Comment
Although the justification is phrased as involving “intent,” the better
explanation for the doctrine is that the courts are imposing strict liability on
D because of his serious misbehavior in directing the initial act against X or
X’s property.
c. Harmful or offensive touching [§11]

To make out a case for battery, the plaintiff must show that the defendant’s
intentional act resulted in the infliction of a harmful or offensive touching of the
plaintiff’s person, or something so closely associated with the plaintiff as to make the
touching tantamount to a physical invasion of the plaintiff’s person. Things “closely
associated” with the plaintiff’s person would cover situations where the defendant
knocks the plaintiff’s hat off his head, grabs a plate out of his hand, etc. [Fisher v.
Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967); Rest. 2d §18] Note:
There must be actual physical contact—“coming close” is not enough to constitute a
battery.
(1) “Harmful” touching [§12]
A touching is “harmful” if it injures, disfigures, impairs, or causes pain to any
bodily organ or function.
(2) “Offensive” touching [§13]
A touching is “offensive” if it would offend a reasonable person’s sense of
personal dignity.
(a) Plaintiff’s hypersensitive reaction insufficient [§14]
A touching that would not cause a reasonable person to take offense, but at
which the plaintiff does take offense, is not sufficient to impose liability for
battery. [Rest. 2d §19]
Example: P, a mortician who embalmed the deceased, sued Hospital
for battery because Hospital did not tell P that the deceased had died of
AIDS. P had worn protective gear during the embalming process and
therefore had not been exposed to the AIDS virus. Held: P’s claim was
based on fear that was unreasonable and thus insufficient to constitute a
battery. [Funeral Services by Gregory, Inc. v. Bluefield Community
Hospital, 413 S.E.2d 79 (W. Va. 1991)]
Example: P, a patient of D dentist, sued for battery because D

performed a procedure upon P while D was infected with HIV. The risk
of actual infection from the procedure was tiny and there was no evidence
of actual exposure. D had not created a reasonable basis for P’s fear and
thus was not liable. [Brzoska v. Olson, 668 A.2d 1355 (Del. 1995)]
1) Exception—knowledge of hypersensitivity [§15]
This rule might not apply in a situation in which the defendant knows of
the plaintiff’s hypersensitivity but proceeds anyway. Thus, under
circumstances where it might generally be acceptable to gain someone’s
attention by tapping him lightly on the back, the defendant may be liable
for a battery if he lightly taps the plaintiff on the back knowing that the
plaintiff does not wish such contact. [Rest. 2d §27]
(3) Plaintiff unaware of touching [§16]
The plaintiff need not have knowledge of the touching at the time thereof. Thus,
if the defendant kisses the plaintiff while the plaintiff is asleep, but does not
waken or harm the plaintiff, the kiss may be a sufficiently “offensive” touching
to establish liability—even though the plaintiff does not learn of the contact until
a later time. [Rest. 2d §18 cmt. d] Similarly, batteries may occur while a plaintiff
is unconscious during an operation.
d. Causation [§17]
The harmful or offensive touching must be caused by the defendant’s act or some
force that the act sets in motion. This causation element is satisfied if the defendant’s
conduct “directly or indirectly” results in the injury. [Rest. 2d §13]
Example: D throws a piece of wood at P, intending to injure her. The wood
misses the mark but strikes a pile of rocks, setting loose an avalanche of rocks
that kills P. D’s act directly or indirectly brought about the injuries that led to P’s
death by setting loose the rocks. D is therefore liable for battery.
(1) Distinguish—negligence liability [§18]
The law holds an intentional wrongdoer liable for the direct and indirect
consequences of his acts, whether or not foreseeable. [Rest. 2d §13] However,
in negligence cases, proximate cause rules may operate to terminate liability so
that a negligent tortfeasor may be excused from liability for injuries for which an
intentional tortfeasor would be held liable (see infra, §§442 et seq.).
e. Damages [§19]
A battery is complete upon commission of the harmful or offensive touching. Even if
no physical harm is suffered—as in the case of some offensive touchings—the court
will award at least nominal damages. This is sometimes a symbolic amount of one
dollar.
(1) Compensatory damages [§20]
In the alternative to nominal damages, the plaintiff may recover damages to
compensate her for the harm suffered. Compensatory damages may include
amounts for general damages and special damages.
(a) General damages [§21]
“General damages” are nonpecuniary damages deemed to result from the
touching—such as embarrassment at being hit in the face with a pie, pain or
suffering, disfigurement or disability, etc.
(b) Special damages [§22]
“Special damages” are specific, identifiable economic losses—such as
medical bills or lost wages.
(2) Punitive damages [§23]
If it appears that the defendant’s act was motivated by an intent to injure or
harm the plaintiff, most courts also permit juries to award punitive
(“exemplary”) damages against the defendant.
(a) Jury discretion [§24]
Even if the defendant’s conduct would justify a punitive award, the jury is
not required to make one. The jury must be instructed as to the criteria to
consider in deciding whether to award punitive damages.
(b) Review of jury award [§25]
If the jury does make an award, state law usually requires careful post-trial
review and appellate review of the amount of the award.
(c) Constitutional concerns [§26]
The Eighth Amendment prohibition on excessive fines does not apply to
punitive damages awards in tort cases between private parties. [Browning-
Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257
(1989)] Punitive damages awards can, however, violate the Due Process
Clause if the defendant did not have adequate notice of the possible severity
of the penalty. The Supreme Court has indicated it will look to the following
factors in determining whether the defendant had adequate notice that a
severe penalty might be imposed:
(i) The reprehensibility of the conduct by the defendant toward the
plaintiff under the governing state law;
(ii) The disparity between the compensatory award and the punitive
award; and
(iii) The difference between the punitive award and possible criminal and
administrative penalties for such conduct.
Although the Court has resisted limiting punitive damages to a particular
multiplier of compensatory damages, it has strongly suggested that a ratio
greater than 9:1 would likely prove unconstitutional. Lower courts have
largely treated a 9:1 ratio as the de facto constitutional limit. [State Farm
Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003);
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)]
Example: P purchased a new car that was manufactured by D.
Unbeknownst to P, the car had been damaged before it was sold and it
was repainted. When P discovered these facts, he demanded that D replace
his vehicle. When D refused, P brought suit to recover damages. The jury
awarded $4,000 in compensatory damages and $2 million in punitive
damages. The Supreme Court found that the punitive award violated the
Due Process Clause because the only harm threatened was economic and
not related to safety, there was a great disparity between the compensatory
award and the punitive award, and the criminal penalties that could have
been applied to D for D’s conduct were minor fines. [BMW of North
America, Inc. v. Gore, supra]
2. Assault [§27]
Prima facie case:
• Intent
• Apprehension
• Causation

The act required to make out a prima facie case for assault is the same type of act as
is required for battery—i.e., a volitional movement of some portion of the body.
(1) Words alone not sufficient [§29]
Because of the requirement that the act create in the plaintiff an apprehension of
an immediate touching (see below), words alone are generally not enough to
constitute an assault. There must also be some volitional movement of the body,
however slight. [Western Union Telegraph Co. v. Hill, 150 So. 709 (Ala.
1933); Rest. 2d §31]
Example: If D says to P, “You are about to die,” there is no assault. But if

D accompanies the statement with the slightest movement of his hand
toward a pistol on the table, this act may be sufficient to constitute an assault.
[Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991)—entry without permission
plus reaching for pistol in holster sufficient]
(a) Exception for certain threats [§30]
Occasionally, the impact of the words alone may create a sufficient
apprehension of immediate harm to constitute an assault. [Rest. 2d §31 cmt.
d]
Example: Verbal threats of imminent harm to a blind person may
constitute an assault.
Example: D comes up behind P saying, “Don’t turn around or I’ll shoot

you.” This may be an assault because the surrounding circumstances
force P to rely on the words alone—i.e., it is unsafe for P to turn around to
see if D really has a gun.
(b) Distinguish—emotional distress [§31]
Note that words alone, even if insufficient for an assault, may be sufficient
to impose liability for intentional infliction of emotional distress (see infra,
§80).
b. Intent [§32]
To make out the prima facie case for assault, the plaintiff must show that the
defendant intended to: (i) inflict a harmful or offensive touching on the plaintiff or a
third person, or (ii) put the plaintiff or a third person in apprehension of an
imminent harmful or offensive touching.
(1) Test [§33]
Again, the defendant’s intent is measured by the “desire or belief in substantial
certainty” test (see supra, §7). No malice need be shown. [Langford v. Shu,
128 S.E.2d 210 (N.C. 1962)]
(2) Transferred intent [§34]
The transferred intent doctrine is likewise applicable (see supra, §10).
c. Apprehension [§35]
The defendant’s intentional act must have placed the plaintiff in apprehension of an
imminent harmful or offensive touching of her person. [Proffitt v. Ricci, 463 A.2d
514 (R.I. 1983)]
(1) Plaintiff’s awareness of threat [§36]
The apprehension requirement means that the plaintiff cannot complain
of an assault unless she was aware of the threat at the time thereof. [Rest. 2d
§22]
Example: There is no actionable assault if all D did was silently point a gun
at P while her back was turned.
(a) Distinguish—battery [§37]
The rule is different in battery, where apprehension is not required, and
where the plaintiff need not have knowledge of the touching at the time
thereof (see supra, §16).
(2) Nature of harm threatened [§38]

Moreover, the plaintiff must be apprehensive of a touching to her own person.
Threats to her home or property, or to the person or property of any third
person (even members of her own family), are not enough. [Rest. 2d §26]
(a) Distinguish—emotional distress [§39]
But such threats may be sufficient to impose liability for emotional distress
(see infra, §80).
(b) Distinguish—false imprisonment [§40]
Threats to a member of the plaintiff’s family may create a false
imprisonment (see infra, §67).
(3) Source of threatened harm [§41]
In assault cases, normally the source of the harm threatened is the defendant
himself, or some force the defendant sets in motion. However, this is not
essential. The defendant may be liable for an assault where he arouses
apprehension of harm from someone else (or even from an act of God). [Rest.
2d §25]
Example: For the purpose of making P apprehensive, D falsely says,
“Watch out! A snake is about to bite you!” or “Duck! X just threw a rock at
you!” D may be liable for assault. (These are also examples in which “words
alone” are sufficient; see supra, §30.)
(4) Imminence of threatened harm [§42]
The plaintiff must be placed in apprehension of an imminent harmful or
10
offensive touching. Thus, even if menacing gestures are involved, if the

defendant’s words negate any immediate threat, there is no actionable assault.
Example: If D shakes his fist at an elderly man saying, “If you weren’t such an
old fool, I’d break your neck,” the words negate the immediacy of the
threat.
(a) Threats of future harm insufficient [§43]
Likewise, if the defendant’s words make it clear that some significant
interval of time remains before the harm will be inflicted, there is no assault.
[Rest. 2d §29(2)]
Example: D points a gun at P saying, “The next time we meet, you’re
dead!” There is no assault.
Example: Threatening phone calls to P were not sufficiently imminent

because callers were not close enough to inflict damage. [Brower v.
Ackerley, 943 P.2d 1141 (Wash. 1997)]
1) Distinguish—emotional distress [§44]
Again, however, threats of future harm may be sufficient for the tort of
intentional infliction of emotional distress (see infra, §80).
(b) Conditional threats may be sufficient [§45]
A threat of imminent harm may constitute an assault even if the threat is
conditional, provided the condition is one that the defendant is not privileged
to assert. [Rest. 2d §30]
Example: D points a gun at P saying, “Take back what you said about
my sister, or I’ll kill you!” D is liable for an assault because no privilege
exists for him to force a retraction in this manner.
1) What is privileged [§46]
As to the circumstances under which one person is privileged to use or
threaten harm against another, see self-defense (infra, §§119 et seq.) and
privilege of arrest (infra, §§165 et seq.).
(5) Nature of plaintiff’s apprehension
(a) Reasonable apprehension [§47]
Many courts require that a plaintiff’s apprehension have been reasonable.
(b) Fear not required [§48]
The plaintiff need only be placed in apprehension of a touching; she
11
need not be frightened. Thus, it is immaterial that the plaintiff may be able,
and knows that she is able, to escape or prevent the threatened touching.
[Rest. 2d §24]
Example: A frail, five-foot tall, 90-pound weakling may commit an
assault against a powerful, six-foot tall, 250-pound linebacker by
threatening to strike the linebacker, even if the linebacker knows that he can
overpower the weakling or can step away before the weakling can possibly
touch him.
1) Subjective test [§49]
It is also immaterial that a reasonable person would not have been placed
in apprehension by the defendant’s act. Actual (i.e., subjective)
apprehension is the test. [Rest. 2d §27]
(c) Apparent ability sufficient [§50]
It is sufficient if the defendant had the actual or apparent ability to inflict the
touching. [Allen v. Hannaford, 244 P. 700 (Wash. 1926); Rest. 2d §27]
Example: If D intends to make P apprehensive by appearing to menace
her with a loaded gun from 50 feet away, an assault has been
committed even if the gun is in fact unloaded.
1) Distinguish—criminal assault [§51]
The rule may be different for a criminal assault. (See Criminal Law
Summary.)
d. Causation [§52]
The plaintiff’s apprehension must have been caused by the defendant’s act or
something the defendant set in motion. As to what is sufficient causation, see
discussion of this element in battery, supra, §17.
e. Damages [§53]
The damages rules discussed under battery (supra, §19) generally apply to assault as
well. The plaintiff need not have suffered any emotional distress, physical injuries, or
other damages (although, again, these are recoverable if sustained). In addition to
compensatory damages, punitive damages might also be recoverable (subject to the
limitations described supra, §§23-26).
3. False Imprisonment [§54]

Prima facie case:
• Intent
• Confinement
12
• Causation

To make out a prima facie case of false imprisonment, the plaintiff must show some
act by the defendant that caused the confinement of the plaintiff. As in battery and
assault, the act required is usually a volitional movement by the defendant of some
part of his body.
(1) Words alone sufficient [§56]
In false imprisonment, words alone may be a sufficient act. Thus, threats of
physical force (see below), or words asserting legal authority (“I arrest you”),
may result in actionable imprisonment without any accompanying physical
movement. [Martin v. Houck, 54 S.E. 291 (N.C. 1906)]
b. Intent [§57]
The act must have been done by the defendant with the intent to confine the plaintiff
or some third person.
(1) Test [§58]
Again, intent is measured by the “desire or belief in substantial certainty” test
(supra, §7).
The transferred intent doctrine applies (see supra, §10).
c. Confinement [§60]
The defendant’s intentional act must result in the confinement of the plaintiff within
boundaries fixed by the defendant for some period of time, however short.
“Confinement” requires that the plaintiff be restricted to a limited area without
knowledge of a reasonable means of escape.
(1) What constitutes “confinement”
(a) Area of confinement [§61]
Normally, there must be some specific area in which the plaintiff is
completely confined by the defendant’s acts.
Example: Where P is prevented from going in a certain direction (e.g.,
by D’s blocking a highway), there is not a sufficient confinement to
constitute false imprisonment because P is not bounded and can go in other
directions. [Bird v. Jones, 115 Eng. Rep. 668 (1845)]
(b) No means of escape available [§62]
There is no confinement if reasonable means of escape are available
13
and known to the plaintiff. [Davis & Allcott Co. v. Boozer, 110 So. 28
(Ala. 1926)]
1) But note
The plaintiff is under no duty to search for a means of escape or to run
any risk of harm to her person or property (e.g., clothing) by attempting
to escape. [Rest. 2d §36]
2) Unlawful demand [§63]
If the defendant asserts that he will free the plaintiff if the plaintiff
complies with some unlawful condition (e.g., payment of money which
the plaintiff is under no obligation to pay), compliance is not deemed a
“reasonable” means of escape.
(c) Plaintiff’s awareness [§64]
There can be no confinement unless the plaintiff knows that she is confined
at the time of the confinement or is harmed by the confinement. [Rest. 2d
§42]
Example: A baby locked in a bank vault for several days may have an
action for false imprisonment if she was harmed by the confinement,
even if she was not aware of it.
(2) How confinement caused [§65]
The plaintiff’s confinement may be caused by any of the following:
(a) Physical force [§66]
The defendant’s use of physical force against either the plaintiff or a
member of the plaintiff’s immediate family constitutes confinement. The
reasonableness of the plaintiff’s submission thereto is immaterial. [Rest. 2d
§39]
Example: A football player may be confined by a frail nun who grabs
the player’s coat, intending to detain him.
(b) Threats or duress
1) Threats to plaintiff or plaintiff’s family [§67]
Confinement may be effected by submission to threats of imminent
physical harm to the plaintiff or a member of her immediate family.
[Rest. 2d §40A]
Example: D may confine P by threatening to shoot P’s child
standing beside her if P tries to leave the room.
14
a) Distinguish—future harm [§68]

There is no actionable confinement where the plaintiff submits to
threats of future harm. [Rest. 2d §40 cmt. b]
Example: D says to P, “Unless you stay with me, I’ll kill your
husband when he gets off work.” There is not a sufficient
confinement to constitute false imprisonment. (However, P may
succeed in claiming intentional infliction of emotional distress; see
infra, §80.)
2) Threats to plaintiff’s property [§69]
Threats to inflict immediate harm on the plaintiff’s property may also be
sufficient. [Rest. 2d §40A]
Example: Without any privilege to do so, D removes a valuable
stamp from P’s stamp collection and threatens to tear it in half
unless P stays in the room. This is an effective confinement.
3) Threats to plaintiff’s economic well-being [§70]
Submission to words of another usually does not constitute false
imprisonment where the plaintiff stays to avoid losing her job. [Faniel v.
Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C. 1979)]
Example: Where D led P employee to believe that if P left the room
during questioning about drug deals and thefts, D would terminate
P’s employment, the threat was insufficient to support a false
imprisonment claim. [Johnson v. United Parcel Services, 722 F. Supp.
1282 (D. Md. 1989)]
(c) Actual or apparent physical barriers to escape [§71]
Physical barriers may be in the form of an enclosure, fence, walls, etc.
Similarly, acts that deprive the plaintiff of the ability to escape may cause
confinement by physical barrier (e.g., taking away the crutches or
wheelchair from a crippled person; or, where P is down a well, taking away
the ladder that is the only way up). [Rest. 2d §38]
1) Refusing to release [§72]
In addition, the barriers may consist of refusing to release the plaintiff or
to assist her in leaving when under a duty to do so. [Rest. 2d §45]
a) Limitation [§73]
Of course, absolute freedom of movement at all times cannot be
expected.
15
Example: When a passenger boards a commercial airliner or

bus, she impliedly agrees to abide by the rules of entrance and
exit at scheduled stops only. There is no actionable confinement if
the passenger is denied permission to depart at a nonscheduled stop.
Compare: On the other hand, if the plaintiff submits herself to

the defendant’s care or custody (e.g., by boarding defendant’s
pleasure yacht) with the implicit understanding that the defendant
will assist her in leaving any time she wishes, if the defendant
subsequently refuses to allow the plaintiff to leave, and it is actually
or apparently impossible for the plaintiff otherwise to escape, there is
a sufficient confinement to establish false imprisonment. [Whittaker
v. Sandford, 85 A. 399 (Me. 1912)]
(d) Arrest [§74]
A confinement may also be effected by the defendant’s assertion of legal
authority (i.e., an arrest) and submission thereto by the plaintiff. [Martin
v. Houck, supra, §56; Rest. 2d §41]
1) Filing complaint is not basis for false imprisonment [§75]
A private citizen who does no more than file a complaint with the police
regarding another is not liable for false imprisonment because it is the
police who assert legal authority and confine the person against whom
the complaint is made. [Baker v. Coon, 166 N.W. 555 (Neb. 1918)]
a) But note
A citizen who files a false complaint may be liable for malicious
prosecution (see infra, §1759).
d. Causation [§76]
The confinement must have been caused by the defendant’s intentional act or some
force set in motion thereby (see discussion of this element, supra, §17).
e. Damages [§77]
The tort of false imprisonment is complete upon the confinement, and recovery may
be had even though the plaintiff suffers no special damages—e.g., injuries, loss of
earnings, etc. (However, if sustained, these damages are also recoverable.) In
addition to compensatory damages, punitive damages might also be recoverable
(subject to the limitations described supra, §§23-26).
(1) Injuries while attempting escape [§78]
“False imprisonment invites escape”; thus, a plaintiff can also recover for any
injuries sustained in a reasonable attempt to escape. [But see Sindle v.
16
New York City Transit Authority, 33 N.Y.2d 293 (1973)—no recovery for
injuries suffered in unreasonable escape attempt]
Example: P was a passenger on a bus. Several students defaced the bus
during their ride home from school. The driver announced that he was
departing from the normal route and driving the bus to the police station. To
escape, P jumped out of a window as the bus turned a corner and was severely
injured. P could not recover for false imprisonment because he acted
unreasonably in jumping out of the window. [Sindle v. New York City Transit
Authority, supra]
4. Intentional Infliction of Emotional Distress [§79]

Prima facie case:
• Act by Defendant—“Extreme” and “Outrageous” Conduct
• Intent
• Causation
• Severe Emotional Distress
a. Act by defendant—extreme and outrageous conduct [§80]

Unlike the intentional tort of assault (see supra, §27), words alone may be a
sufficient “act” to make out a prima facie case of intentional infliction of emotional
distress. Or liability may be predicated on any other gesture, conduct, or action by
the defendant. However, courts generally require that the conduct be “extreme” and
“outrageous”—i.e., the conduct must exceed “all bounds of decent behavior.” [Rest.
2d §46]
Example: Threatening language by bill collectors, bullying tactics of landlords
seeking their rent, insults hurled in public, and deliberately killing P’s pet dog are
typical cases of extreme and outrageous conduct. [Sherman v. Field Clinic, 392
N.E.2d 154 (Ill. 1979)]
Compare: Leaving collection agency business cards on P’s door and contacting
P’s neighbors, apartment manager, and former employer did not amount to
“extreme and outrageous” conduct when debtor, P, would not respond to the agency.
[Munley v. ISC Financial House, Inc., 584 P.2d 1336 (Okla. 1978)]
Example: An insurance company’s refusal to pay benefits clearly owing (for

purpose of forcing a policyholder to settle a claim for less than the amount due)
has been held sufficiently “outrageous” that the policyholder could recover for
emotional distress. [Fletcher v. Western National Life Insurance Co., 10 Cal. App.
3d 376 (1970)]
17
Example: A moving company’s failure to deliver P’s household goods until

several months after the date promised, coupled with the company’s knowingly
false assurance to her during the interim that delivery was imminent, and its
knowledge that P’s emotional state was at the breaking point over the delivery
problem, has been held sufficiently “outrageous” conduct. [Hanke v. Global Van
Lines, Inc., 533 F.2d 396 (8th Cir. 1976)]
Example: A doctor’s having sexual relations with his nurse, knowing that he
had an active case of herpes and was likely to infect her, was extreme and
outrageous because the doctor was aware that the disease was painful and incurable.
[B.N. v. K.K., 538 A.2d 1175 (Md. 1988)]
Example: A psychologist’s initiation of affair with his patient’s wife, knowing

that his patient was emotionally unstable, was sufficiently outrageous that the
patient could recover for emotional distress. [Figueiredo-Torres v. Nickel, 584 A.2d
69 (Md. 1991)]
Example: A single racial epithet from an employer (county sheriff) to an

employee may suffice. [Taylor v. Metzger, 706 A.2d 685 (N.J. 1998)]
Compare: A doctor’s act in telling P, the mother of a deceased patient, that he

“had her son’s brain in a jar” for autopsy purposes did not amount to extreme
and outrageous conduct even though she had asked that a brain examination not be
performed. [Burgess v. Perdue, 721 P.2d 239 (Kan. 1986)]
Compare: Making 340 “hang-up” phone calls to P over a two-month period

after P refused to date D a second time was not sufficient for the tort. [Russo v.
White, 400 S.E.2d 160 (Va. 1991)]
(1) Totality of the circumstances [§81]
In determining whether conduct is extreme and outrageous, courts will consider
the “totality of the circumstances,” not each isolated individual incident.
(2) Petty insults [§82]
There is no redress for simple insults, annoyances, or petty indignities (e.g.,
where a frustrated telephone user curses at the operator). [Rest. 2d §46 cmt. d]
(a) Exception—special carrier/utility rule [§83]
Common carriers and public utilities have been held liable for gross insults
that would not otherwise be actionable under the common law requirement
of extreme and outrageous conduct.
18
(b) Exception—harassment [§84]

Cases involving insults or attacks based on race or gender may be actionable
harassment claims pursuant to state or federal statute even if not amounting
to the traditional tort of intentional infliction of emotional distress. [Franklin
v. Gwinnett County Public Schools, 503 U.S. 60 (1992)—sexual
harassment of high school student by teacher may create private remedy
under Title IX of Educational Amendments Act of 1972; Meritor Savings
Bank v. Vinson, 477 U.S. 57, on remand, 801 F.2d 1436 (D.C. Cir. 1986)
—unwelcome sexual advances that create hostile working environment
violate Title VII of 1964 Civil Rights Act]
(3) Extension—liability to third persons [§85]
Even if the defendant’s conduct was aimed only at a particular person, the
defendant will also be liable for infliction of emotional distress to members of
that person’s family present at the time of the conduct—if the defendant knew
of their presence. Rationale: Under the circumstances, the defendant must have
known that his conduct toward the first person was substantially certain to hurt
the plaintiff (family member), or the conduct was at least reckless toward the
plaintiff. [Grimsby v. Samson, 530 P.2d 291 (Wash. 1975)] This is not
transferred intent (see infra, §88).
b. Intent [§86]
The defendant must have intended to cause severe emotional distress or mental
anguish to the plaintiff. Reckless conduct will also suffice (i.e., where the defendant
acts in deliberate disregard of a high probability that his actions will cause emotional
distress). [See Womack v. Eldridge, 210 S.E.2d 145 (Va. 1974)]
(1) Inference of intent [§87]
Such intent or recklessness may be inferred if the defendant knows that the
plaintiff is particularly sensitive or susceptible to emotional distress, but acts in
disregard of the probability that such harm is likely to occur (e.g., abusive words
used to persons who are ill or elderly, to pregnant women, or to children). [See
Hanke v. Global Van Lines, Inc., supra, §80]
(2) No transferred intent among torts [§88]
If the defendant intended to cause bodily harm or property damage to the
plaintiff but did not succeed, and only unintended and unexpected emotional
distress resulted, the defendant is not liable for intentional infliction of the
emotional distress because transferred intent does not apply to this tort.
(Negligent infliction of emotional distress is discussed infra, §§762 et seq.)
(3) Distinguish—assault [§89]
Intentional infliction of emotional distress must be distinguished from assault. In
assault, the defendant must have intended to harmfully or offensively touch the
plaintiff or a third person or to place the plaintiff or third
19
person in apprehension of such a touching. Also, liability in assault is complete

upon occurrence of the apprehension—whether or not any mental anguish,
emotional distress, or physical injury results.
c. Causation
(1) Early view—physical injuries required [§90]
Early cases held that the defendant’s intentional act had to cause a severe
emotional disturbance in the plaintiff, which in turn caused demonstrable
physical injuries. (This was to assure against fraudulent claims.) [Clark v.
Associated Retail Credit Men, 105 F.2d 62 (D.C. Cir. 1939); Wilkinson v.
Downton, 2 Q.B.D. 57 (1897)]
(2) Modern approach—distress alone suffices [§91]
However, the modern view is that if the defendant intentionally and successfully
causes severe emotional distress to the plaintiff, recovery is allowed even if the
plaintiff suffered no demonstrable physical injuries. Rationale: The outrageous
nature of the defendant’s conduct may be a more reliable indication of damage
to the plaintiff than actual physical injury. [State Rubbish Collectors
Association v. Siliznoff, 38 Cal. 2d 330 (1952); Rest. 2d §46]
(a) Note
Whether the defendant’s conduct is sufficiently “outrageous” to cause
mental anguish is a fact question in each case. Changing attitudes and social
conditions are relevant to this issue. [Alcorn v. Anbro Engineering, Inc., 2
Cal. 3d 493 (1970)—racial slurs held actionable without physical injuries]
d. Severe emotional distress [§92]
Although much passes as emotional distress for purposes of recovery in other torts
(e.g., embarrassment, humiliation, shame, fright, and grief), the distress must be
severe to recover for intentional infliction of emotional distress. It must be more than
a reasonable person could be expected to endure. [Harris v. Jones, 380 A.2d 611
(Md. 1977)]
Example: If D attempts to carry out a cruel practical joke, but P is aware of the
joke and thus is only angered at D, rather than humiliated, P has not suffered
severe emotional distress—even though D’s conduct may well have been extreme
and outrageous.
Example: Where P is a corporation, P could not have suffered severe emotional

distress no matter how extreme and outrageous D’s conduct. [Chamberlaine &
Flowers, Inc. v. Smith Contracting, Inc., 341 S.E.2d 414 (W. Va. 1986)]
20
(1) Known sensitivity—“eggshell psyche” rule [§93]

Generally, the defendant’s conduct must be sufficient to cause severe emotional
distress in an ordinary person. [Taylor v. Metzger, supra, §80] However,
pursuant to the “eggshell psyche” rule, a defendant who has knowledge of the
plaintiff’s fragile condition is liable even if the defendant’s conduct would not
have caused a reasonable person severe distress but—due to the plaintiff’s
preexisting mental or emotional state—did inflict such distress upon the plaintiff.
[Stockdale v. Baba, 795 N.E.2d 727 (Ohio 2003)]
e. Defenses
(1) Common law defenses [§94]
Although theoretically the common law defenses available to other intentional
torts (see below) should apply here, in reality these defenses are not available
because the prima facie case requires such an extreme level of misbehavior.
Therefore, defenses based on good faith or reasonable mistake are not relevant
to this tort.
(a) Note
Some courts will not allow a claim for emotional distress if the same facts
would have supported a claim for criminal conversation, which has been
abolished in most states (see infra, §§1207-1208). [Koestler v. Pollard,
471 N.W.2d 7 (Wis. 1991)] Rationale: To permit this action would
undermine the policies that led to abolition of the criminal conversation tort.
(2) Constitutional defenses [§95]
The First Amendment may be a defense to intentional infliction of emotional
distress where allowing the suit would curb the freedom of speech and press or
the free exercise of religion.
(a) Freedom of speech [§96]
If the defendant’s act is a statement that injures the plaintiff, the act may be
protected speech even though the act constitutes extreme and outrageous
behavior. [Hustler Magazine v. Falwell, 485 U.S. 46 (1988)—gross insults
aimed at public person not actionable unless defamatory or an invasion of
privacy] The contours of this limitation mirror First Amendment limitations
to defamation (see infra, §§1503 et seq.).
21
22
(b) Free exercise of religion [§97]

If the defendant is a church or other religious organization, and the act is
part of a religious activity, some courts have held that the Free Exercise
Clause bars recognition of this tort. [Paul v. Watchtower Bible & Tract
Society, 819 F.2d 875 (9th Cir. 1987)—Jehovah’s Witnesses’ practice of
“shunning” a disassociated church member is protected from suit for
outrageous conduct; Molko v. Holy Spirit Association for the
Unification of World Christianity, 46 Cal. 3d 1092 (1988)—threats of
divine retribution made by church members were protected religious speech
and could not form the basis for emotional distress claim; Murphy v.
International Society for Krishna Consciousness of New England, 571
N.E.2d 340 (Mass. 1991)—no claim of emotional distress by mother of
child who became involved with defendant group because claim could only
be proved by testimony about the group’s religious beliefs]
f. Damages [§98]
In addition to compensatory damages, punitive damages may be recoverable in states
that permit them because of the nature of the defendant’s act (subject to the
limitations described supra, §§23-26).
(1) Exception—conduct entirely speech [§99]
Because of free speech concerns, some states that usually permit punitive
damages may bar them if the tortious conduct is entirely speech. [Huffman &
Wright Logging Co. v. Wade, 857 P.2d 101 (Or. 1993)]
B. Defenses and Privileged Invasions of Personal Interests

1. Consent [§100]
The plaintiff’s consent to the defendant’s conduct may be a defense to an intentional
tort. Most courts require the defendant affirmatively to plead and prove that the plaintiff
consented. A few make lack of consent an element of the prima facie case that the
plaintiff must plead and prove.
a. Types of consent [§101]

There are two basic types of consent: consent based on the plaintiff’s behavior and
consent implied by law.
(1) Consent based on plaintiff’s behavior [§102]
The plaintiff may consent by:
23
24
(i) Actual express consent—when the plaintiff actually communicates to the

defendant a willingness to submit to the defendant’s conduct; or
(ii) Apparent consent—implied from the plaintiff’s conduct in light of the
circumstances; i.e., the plaintiff, by conduct, has led the defendant
reasonably to believe that the plaintiff is willing to submit to the defendant’s
act.
Example: P’s failure to object to a vaccination that P sees D preparing for P
conveys apparent consent to the injection. [O’Brien v. Cunard Steam-
Ship Co., 28 N.E. 266 (Mass. 1891)]
Example: A person who enters into a sport impliedly consents to normal

contacts by other participants.
Example: Similarly, someone who walks on the streets or uses mass

transportation impliedly consents to taps on the shoulder or brushings.
Example: A parent standing in the middle of a stairwell during a school fire

drill impliedly consents to a teacher’s “placing her fingertips” on the parent’s
shoulder in an attempt to get her attention. [Wallace v. Rosen, 765 N.E.2d 192
(Ind. 2002)]
(2) Consent implied by law [§103]
The plaintiff’s consent may be implied by law to a bodily contact (e.g., surgery)
that is necessary to save her life or some other cardinal interest in person or
property if:
(i) The plaintiff is unconscious or otherwise unable to consider the matter
and grant or withhold consent;
(ii) An immediate decision is necessary;
(iii) There is no reason to believe that the plaintiff would withhold consent if
able to do so; and
(iv) A reasonable person in the plaintiff’s position would consent.
[Rest. 2d §62; Miller v. Rhode Island Hospital, 625 A.2d 778 (R.I. 1993)—
emergency room personnel may dispense with consent where patient is unable to
give it due to intoxication]
b. When consent is not a defense [§104]

Consent is not effective in the following circumstances:
25
(1) Acts in excess of consent given [§105]

There is no effective consent if the invasion goes beyond the limits of the
consent given.
Example: P consents for D, a doctor, to remove a uterine tumor. In the
middle of the operation, D decides to remove P’s diseased appendix. D’s
removal of P’s appendix is an unprivileged battery because it went beyond the
limits of the consent given. [In re Johnson’s Estate, 16 N.W.2d 504 (Neb.
1944)]
(2) Fraud [§106]
The plaintiff’s consent to the invasion is ineffective if procured by fraud. [See
Bartell v. State, 82 N.W. 142 (Wis. 1900)—magnetic healer taking indecent
liberties with young woman while purporting to treat her]
Example: If P allows D to take blood from P’s arm because D represents
that this is necessary to save P’s life, and D knew that these representations
were untrue, the consent is void.
(a) Distinguish—collateral fraud [§107]
If the fraud is only with respect to a collateral matter, the consent is
effective.
Example: If P consented to D’s taking blood from P’s arm because D
had given P a $20 bill, the consent is effective even if the bill is
counterfeit. [Desnick v. American Broadcasting Cos., 44 F.3d 1345 (7th
Cir. 1995)]
(3) Duress [§108]
The plaintiff’s consent is ineffective if given under duress (physical force or
threats thereof) against the plaintiff or a member of the plaintiff’s family.
[Neibuhr v. Gage, 108 N.W. 884 (Minn. 1906)]
(4) Mistake [§109]
The plaintiff’s consent is also ineffective if given due to a mistake and either: (i)
the mistake was caused by the defendant, or (ii) the defendant was aware of the
mistake. [Rest. 2d §892]
(a) Mistake of law [§110]
A mistake of law caused by the defendant may render the plaintiff’s consent
ineffective.
Example: P is hurt while leaving a train, and the conductor tells P that P
must file an accident report before he can get medical aid. Although P
stays, his consent does not bar a subsequent suit for
26
false imprisonment because it was given under a mistake of law caused by
the conductor. [Whitman v. Atchison, Topeka & Santa Fe Railway, 116
P. 234 (Kan. 1911)]
(b) Mistake of fact [§111]
The plaintiff’s mistake as to the essential nature or consequences of the
invasion of her person or property is treated as a mistake of fact and voids
any consent to the invasion if the mistake was caused by the defendant or
the defendant was aware of it.
Example: For a fee, Owner consented to allow Lessee to build an
earthen pit on Owner’s property to dispose of waste salt water resulting
from Lessee’s operation of oil wells on the property. Salt water percolated
down out of the pit and contaminated Owner’s fresh water supply, which
Owner relied on for farming purposes. Testimony showed that Lessee may
have been aware of similar problems at other pits in the area and Lessee
admitted that if he thought seriously about the pollution issue, he would have
devised a different system of disposal. On the other hand, nothing in the
facts showed that Owner knew or should have known that the salt water
would percolate into the fresh water supply. Therefore, Owner’s consent
was void. [Brown v. Lundell, 344 S.W.2d 863 (Tex. 1961)]
1) Lack of consent in medical treatment [§112]
It is on this very basis that a patient’s consent to surgery or other
medical treatment is sometimes held ineffective, thereby exposing the
doctor to liability for battery (see supra, §105). [Gray v. Grunnagle,
223 A.2d 663 (Pa. 1966)]
2) Lack of informed consent [§113]
Where the plaintiff asserts that she consented to the surgical procedure
performed, but that she had not been adequately informed of the risks
and benefits of the procedure, the claim is generally treated as one for
negligence rather than an intentional tort (see infra, §311). [Cobbs v.
Grant, 8 Cal. 3d 229 (1972)]
(5) Incapacity to consent [§114]
There is no valid consent if the plaintiff is known to be a person incapable of
giving consent (e.g., is an infant, or is drunk or mentally incapacitated).
[Hollerud v. Malamis, 174 N.W.2d 626 (Mich. 1969)]
27
(6) Criminal acts [§115]

There is a split of authority on whether the plaintiff’s consent is effective if the
act consented to is a crime.
(a) Majority view [§116]
Most cases distinguish between criminal acts that involve breaches of the
peace, and those that do not: If no breach of the peace was involved (e.g.,
an illegal abortion), the plaintiff’s consent is effective. On the other hand, if
the consented-to act involved a breach of the peace (e.g., a fight in the
streets), these courts hold the plaintiff’s consent not effective, thus
permitting the plaintiff to recover from the defendant for any injuries
sustained. [Teeters v. Frost, 292 P. 356 (Okla. 1930)]
1) Rationale
If a breach of the peace is involved, there is a public interest in seeing
that the participants bear full liability—criminal and civil—for their acts.
(b) Minority view [§117]
Some courts hold the plaintiff’s consent effective in any case, thus barring
any later claims by the plaintiff based on the illegal act. [Hart v. Geysel, 294
P. 570 (Wash. 1930); Rest. 2d §60]
1) Rationale
No reason is seen to invalidate the plaintiff’s consent (and thus allow a
cause of action) merely because the act consented to was a crime.
Moreover, participants in criminal acts should be left in the status quo; if
they are allowed to recover from each other, one might “profit” from her
own wrongdoing. [Sayadoff v. Warda, 125 Cal. App. 2d 626 (1954)]
2) Exception—plaintiff is a member of protected class [§118]
Even under the minority view, however, the plaintiff’s consent will be
disregarded if the plaintiff is a member of the particular class of persons
for whose benefit the statute was enacted.
Example: If a statute forbids boxing matches unless licensed by the
state boxing commission, and also demonstrates a concern for the safety
of participants, a boxer who is hurt in an unlicensed match may sue the
promoter. [Hudson v. Craft, 33 Cal. 2d 654 (1949)]
2. Self-Defense
a. Using nondeadly force [§119]

When acting in self-defense, a defendant is privileged to use force that is not
28
likely to cause death or serious bodily harm, subject to the following conditions
[Rest. 2d §63]:
(1) Reasonable apprehension of any bodily contact [§120]
The plaintiff must have acted in a way that led the defendant to reasonably
believe (either correctly or by reasonable mistake) that the plaintiff was about to
inflict an imminent harmful or offensive contact upon him; and
(2) Reasonable means used [§121]
The defendant used only those means that appeared reasonably necessary to
avoid or prevent the contact threatened.
(3) Retreat [§122]
The defendant must not have had a duty to retreat. There is generally no duty
to retreat or comply with any demand made by the person threatening the force,
except that:
(a) If the defendant recognizes that the plaintiff is not intentionally creating
the risk, there is a duty to retreat if he can safely do so; and
(b) If the defendant recognizes that the plaintiff has mistaken the
defendant’s identity, the defendant must make reasonable efforts to resolve
the matter instead of using force in self-defense.
b. Using deadly force [§123]

The defendant is privileged to use force likely to cause death or serious bodily harm
when acting in self-defense, subject to the following conditions [Rest. 2d §65]:
(1) Reasonable apprehension of serious bodily harm [§124]
The plaintiff must have acted in a way that led the defendant to reasonably
believe that the plaintiff was about to inflict an imminent harmful or offensive
contact upon him, and the defendant reasonably believed that such contact
would inflict death or serious bodily harm.
(2) Duty to retreat [§125]
There is a split over whether, as an alternative to using deadly force in
selfdefense, the defendant must retreat if it is safe to do so.
(a) Majority view [§126]
Most courts hold that there is no duty to retreat as an alternative to using
deadly force that would otherwise be permissible. [See People v. Bush, 111
N.E.2d 326 (Ill. 1953)]
1) Rationale
When one is threatened with deadly force, the feasibility of retreat
should not be second-guessed by courts after the event. Also,
29
as between the actor and the person threatening him, the actor has the
“right” to be where he is. [People v. Estrada, 60 Cal. App. 477 (1923)]
A minority of courts impose a duty to retreat before using deadly force if
this can be done safely. [Rest. 2d §65]
1) Rationale
The social interest in preventing deadly affrays outweighs the actor’s
“right” to stand his ground when threatened. [Joseph H. Beale, Retreat
from a Murderous Assault, 16 Harv. L. Rev. 567 (1903)]
a) But note
Where guns are involved, there is rarely a means of safe retreat;
thus, the minority view will not apply.
2) Exceptions [§128]
Even under the minority view, there is no duty to retreat if: (i) the
defendant is in his own home (or also, in some states, his place of
business); (ii) retreating would endanger a third party; or (iii) the
defendant is attempting a lawful arrest. [Rest. 2d §65(2)]
c. Threats of force [§129]

The defendant is privileged to threaten more force than he would in fact be
privileged to use in self-defense, provided he has no reason to believe his threats will
do more than place the plaintiff in apprehension. (This protects the defendant from
liability for assault based on such threats.) [Rest. 2d §70(2)]
d. Limitations on right of self-defense [§130]

The privilege to act in self-defense is not unlimited.
(1) Danger terminated [§131]
There is no privilege of self-defense if the defendant knows that the danger has
terminated. [Germolus v. Sausser, 85 N.W. 946 (Minn. 1901)—D continued to
whip P after P was disarmed]
(2) Excessive force used [§132]
Neither is there any privilege to use force in excess of that which the defendant
is privileged to use to defend himself (e.g., P slaps D across the face; D could
easily prevent further harm by holding plaintiff’s arms, but instead stabs P with a
knife). When excessive force is used:
(i) The defendant is liable for whatever amount of the force is excessive;
and
30
(ii) The plaintiff then has a privilege of self-defense to protect herself against
the degree of force being inflicted by the defendant. (In the example above,
P might become privileged to use deadly force to defend against D’s knife
attack.)
[Rest. 2d §71]
(3) Plaintiff using privileged force [§133]
There is no privilege of self-defense against privileged action by another (e.g., a
lawful arrest). [Rest. 2d §72; Ellis v. State, 596 N.E.2d 428 (Ohio 1992)—
trespasser not entitled to assert self-defense to justify assault on another who had
legitimately used nonlethal force to exclude trespasser from property]
(4) Third person intentionally injured [§134]
Finally, the privilege of self-defense does not justify the defendant’s intentional
use of harmful force against a third person. [Rest. 2d §73]
Example: X threatens D with serious bodily harm. If, in attempting to
escape from X, D intentionally runs over P, causing her injury, D is liable to
P for battery.
(a) Distinguish—unintentional harm [§135]
But if the defendant unintentionally injures a third person while reasonably
attempting to defend himself, he will be liable only if he was negligent
toward the third person. [Helms v. Harris, 281 S.W.2d 770 (Tex. 1955)]
e. “Reasonableness” [§136]
Self-defense rules are couched in terms of “reasonableness.” This is an objective test
—i.e., how the situation would have looked to the reasonable person in the same or
similar circumstances, not how the defendant actually perceived it or how it actually
was.
3. Defense of Third Persons [§137]

The defendant may also be privileged to use force to defend another person. However,
the force the defendant may use is limited to that which the person defended would have
been privileged to use in self-defense under the circumstances. Use of force in this
situation raises certain additional issues:
a. Who may be defended [§138]

Under modern law, the policy is to encourage a person to go to the aid of anyone
who is endangered—even if the person defended is a complete stranger to the
defendant.
31
b. Effect of defendant’s mistake in intervening [§139]

Nevertheless, the courts are split on whether the defendant is privileged if the person
defended was not actually entitled to defend himself. For example, undercover police
officer P attempts to arrest X; D does not realize P is a police officer, thinks P is
beating up X, and goes to X’s aid, injuring P.
(1) Older view [§140]
Traditionally, courts held that if D intervenes, he must “stand in the shoes” of
the person he is defending, so that unless the person being helped was actually
privileged to defend himself, D is subject to tort liability (e.g., battery). Thus,
the privilege could not be based on the defendant’s mistake, no matter how
reasonable.
(2) Modern view [§141]
The Restatement and recent cases allow a reasonable mistake in exercise of the
privilege. Hence, D is privileged to use force to defend a third person as long as
the actor correctly or reasonably believes that:
(i) The third person (X) was privileged to defend himself and to use the
means of defense (deadly vs. nondeadly) and amount of force that D used;
and
(ii) D’s intervention was necessary to protect the third person.
[Rest. 2d §76; Clark v. Ziedonis, 513 F.2d 79 (7th Cir. 1975)]
a. Use of nondeadly force [§142]

A defendant may not use deadly force (force likely to cause death or serious bodily
harm) to defend his land or chattels. He is privileged to use force not likely to cause
death or serious bodily harm, but only if:
(i) The intrusion by the plaintiff is not privileged, or is conducted so as to lead
the defendant to reasonably believe that it is not privileged; and
(ii) The defendant reasonably believes that force is necessary to prevent or
terminate the plaintiff’s intrusion; and
(iii) The defendant, prior to the use of force, demands that the plaintiff desist or
leave, and the demand is ignored. (No demand need be made, however, where it
reasonably appears that it would be futile or would further endanger the
defendant’s property.)
[Rest. 2d §77; Daniels v. Dillard Department Stores, Inc., 881 F. Supp. 505 (D.
Kan. 1995)—officers privileged to use force where plaintiff was loud, profane,
disruptive, and hostile toward officers, was told she would have to leave store or be
arrested for trespass if she did not calm down, and she did not comply]
32
b. Use of mechanical devices [§143]

The defendant is privileged to use mechanical devices (high-voltage fences, spring
traps, etc.) in defense of his land or chattels only if:
(i) The use of such means to protect property is reasonable and necessary under
the circumstances, or customary in the locale; and
(ii) Adequate warning of the use thereof is given or posted.
[Rest. 2d §84; Allison v. Fiscus, 100 N.E.2d 237 (Ohio 1951)]
(1) Deadly mechanical devices [§144]
If the devices employed threaten death or serious bodily harm, their use is
privileged only if the intrusion in fact constitutes (not just reasonably appears to
constitute) a threat of death or serious bodily harm to the defendant or his
family. [Rest. 2d §85]
(a) Rationale
Simple trespass, vandalism, or theft is not sufficient justification for use of
deadly devices. [Katko v. Briney, 183 N.W.2d 657 (Iowa 1971)—spring
gun; but see Alaska Stat. §09.65.210 (1987)—no recovery for personal
injury or death sustained in the commission of a felony]
c. Use of threats [§145]

A defendant is privileged to threaten a greater amount of force than he would
actually be privileged to use in defense of his property (e.g., farmer pointing shotgun
at trespasser crossing field)—provided that he has no reason to believe that such
threats would cause anything more than fright or apprehension in the plaintiff. [Rest.
2d §81]
5. Force to Recover Possession of Land Wrongfully Withheld
33
a. Majority view [§146]

Under the present majority rule, there is no privilege to use force to recover
possession of land wrongfully withheld even if the owner has been “tortiously
dispossessed” (below). An owner who uses force to retake possession will be liable
for the resulting harm (e.g., battery). The owner’s title or right to possession of land
is no defense to the tort. [Daluiso v. Boone, 71 Cal. 2d 484 (1969)]
(1) Rationale
In practically all states today, there are judicial procedures (e.g., ejectment,
unlawful detainer, etc.) that provide a quick and effective remedy for the
recovery of land wrongfully withheld. Such procedures are supported by public
policy favoring resort to courts, rather than self-help, to settle land disputes.
b. Minority view [§147]

A minority of jurisdictions follow the Restatement rule that a person who is entitled
to possession of land, and who has been “tortiously dispossessed” therefrom, may
use reasonable, nondeadly force to regain possession—provided he acts promptly
upon discovering the dispossession. [Shorter v. Shelton, 33 S.E.2d 643 (Va. 1945);
Rest. 2d §§89, 91]
(1) “Tortious dispossession” [§148]
The term “tortious dispossession” means that the plaintiff obtained possession by
force, fraud, or duress, or without any claim of right (e.g., is a trespasser).
(2) Distinguish—other dispossessions [§149]
If there was no tortious dispossession, there is no privilege to use any force to
recover possession of land, on the rationale that the owner’s right to possession
is less important than avoidance of the affrays and violence which the use of
force might entail. [Rest. 2d §88]
Example: P cannot use force against a tenant who overstays the lease, or a
person who moves onto property in the honest but mistaken belief that he
owns it.
a. Tortious dispossession cases [§150]

A defendant who has been tortiously dispossessed of chattels (e.g., by a robber,
pickpocket, shoplifter, or defrauder) is privileged to use reasonable, nondeadly force
in recapture of those chattels. [Rogers v. Kabakoff, 81 Cal. App. 2d 487 (1947)]
This privilege, however, is subject to the following conditions [Rest. 2d §§101-106]:
34
(1) Immediate right to possession [§151]

The defendant must in fact be entitled to the immediate possession of the
chattel. (No mistake, however reasonable, is permitted.)
(2) Demand [§152]
The defendant must demand return of the chattel and the demand must be
ignored (but if demand would be futile or dangerous, no demand is required).
(3) Fresh pursuit [§153]
The recapture must be effected promptly—i.e., the defendant must be in “fresh
pursuit.” This encompasses two factors: (i) the defendant must have been
reasonably diligent in discovering the loss; and (ii) following discovery, the
defendant must have been reasonably diligent in his efforts to retake the chattel.
Both of these requirements are measured by a “reasonable person” standard.
(4) Holder at fault [§154]
The defendant must effect the recapture from the person who tortiously
dispossessed him, or from a third party who has notice that the chattels involved
were stolen, etc.
(a) Distinguish—transfer to innocent person [§155]
If the thief has sold or given the chattels to an innocent party, this cuts off
the defendant’s privilege to use force to effect their recapture, even if he can
show “fresh pursuit.”
b. Other dispossessions [§156]

If the defendant has not been tortiously dispossessed of chattels (i.e., no fraud,
force, etc.), the general rule is that he is not privileged to use any force to effect
their recapture. Redress must be in the courts.
Example: B borrows A’s book and later decides not to return it; or A parks his
car in B’s parking lot, and B later refuses to release the car. In either case, A has
no privilege to use force to get back his property.
(1) Conditional sales contracts [§157]
When a buyer defaults on a conditional sales contract, the seller is entitled to
peacefully repossess; neither force nor fraud is permitted. [Stallworth v. Doss,
194 So. 2d 566 (Ala. 1967)] In fact, even if the sales contract purports to allow
for a forceful recapture, most courts will find such a provision void as against
public policy. [Girard v. Anderson, 257 N.W. 400 (Iowa 1934)]
c. “Shopkeepers’ privilege” [§158]

Most states today recognize a privilege, usually limited to shopkeepers, to detain
temporarily for investigation anyone whom they reasonably suspect of having
35
tortiously taken their goods. [Teel v. May Department Stores Co., 155 S.W.2d 74
(Mo. 1941); Rest. 2d §120A]
(1) Rationale
This privilege has been justified by the very practical need for some degree of
protection for shopkeepers in their dealings with suspected shoplifters. Absent
such privilege, a shopkeeper would be faced with the dilemma of either allowing
suspects to leave without challenge or acting upon his suspicion and risking a
false arrest if mistaken.
(2) Requirements [§159]
Proper exercise of the privilege requires that all of the following conditions be
satisfied [Collyer v. S.H. Kress, 5 Cal. 2d 175 (1936)]:
(a) Investigation on or near premises [§160]
The detention itself must be effected either on the store premises or in the
immediate vicinity thereof.
(b) Reasonable suspicion [§161]
The shopkeeper must have reasonable grounds to suspect the particular
person detained.
(c) Reasonable force [§162]
Only reasonable, nondeadly force may be used to effect the detention.
(d) Reasonable period and manner of detention [§163]
The detention itself may be only for the period of time necessary for
reasonable investigation (usually very short) and must be conducted in a
reasonable manner.
(3) Effect—reasonable mistake protected [§164]
Where these conditions are established, the shopkeeper is immune from liability
for false arrest, battery, etc.—even though it turns out that the person detained
was innocent of any wrongdoing. [Teel v. May Department Stores Co., supra]
a. Arrests for felonies without an arrest warrant [§165]

There is a distinction between felony arrests made by the police and those made by
private citizens.
(1) A police officer is privileged to arrest for a felony without a warrant if he
reasonably suspects that a felony has been committed and that the person he
arrests committed it. [Rest. 2d §121; United States v. Watson, 423 U.S. 411
(1976)—requiring “reasonable grounds” for warrantless arrest]
36
(2) A private citizen is privileged to arrest for a felony without a warrant only if a
felony has in fact been committed, and he reasonably suspects that the person
he arrests committed it. [Rest. 2d §119]
b. Arrests for misdemeanors without an arrest warrant [§166]

According to the general view, both police officers and private citizens are privileged
to arrest for misdemeanors without a warrant if the misdemeanor involves a breach
of the peace that has in fact been committed in the presence of the arresting party,
who makes the arrest in fresh pursuit.
(1) Minority view [§167]
Under a minority view, a police officer is privileged to arrest for a misdemeanor
based on the reasonable belief that the misdemeanor was being committed in
his presence and that the party arrested is guilty. [Coverstone v. Davies, 38
Cal. 2d 315 (1952)]
c. Arrests under arrest warrant [§168]

An arrest made under a warrant “fair on its face” is privileged—even if it develops
that the warrant was improperly issued and the person arrested is innocent of any
crime.
(1) “Fair on its face” [§169]
A warrant is “fair on its face” as long as its face is free of defects that a
reasonable police officer would discover. (See Criminal Procedure Summary
regarding warrant requirements.)
(2) Distinguish—search warrant [§170]
An arrest made without an arrest warrant and without probable cause while the
officer is executing a search warrant gives rise to an action for false arrest. [Barr
v. County of Albany, 50 N.Y.2d 247 (1980)]
d. Amount of force privileged

(1) Misdemeanors [§171]
If the arrest is for a misdemeanor, both the police officer and the private person
are privileged to use that degree of force necessary to effect the arrest, but never
deadly force. [Noback v. Town of Montclair, 110 A.2d 339 (N.J. 1954)]
(2) Felonies [§172]
If the arrest is for a felony, there is a split of authority as to the permissible use
of deadly force:
(a) Traditional view [§173]
The traditional common law rule (still followed in a number of states)
provides that in a lawful arrest for any felony, deadly force may be used by
police officers or private persons, if reasonably necessary to effect the
arrest. [Rest. 2d §131]
37
(b) Modern view—deadly force limited to “serious” felonies [§174]

Some states now limit the right to use deadly force to arrests for “serious”
felonies (e.g., murder, rape, robbery, etc.) and do not permit deadly force in
arrests for other felonies, such as larceny. [Peterson v. City of Long
Beach, 24 Cal. 3d 238 (1979)]
1) Rationale
There are far more felonies today than there were at common law and
many modern felonies are not as “serious” as common law felonies, so
the mere fact that a felony is implicated does not establish that the social
interest in apprehending a suspect is sufficient to outweigh the potential
for harm to innocent parties resulting from the use of deadly force.
2) Fourth Amendment requirement [§175]
The Supreme Court has held that use of deadly force by police officers
is reasonable under the Fourth Amendment only if it is necessary to
prevent a felon’s escape (or to capture a suspect) and there is probable
cause to believe that the felon or suspect poses a significant threat of
death or serious injury to the officer or others. [Tennessee v. Garner,
471 U.S. 1 (1985); and see Model Penal Code §3.07]
a) Effect on state tort law [§176]
States are free to define defenses to a state tort claim. Therefore, a
state statute may privilege a defendant’s use of force in the plaintiff’s
state tort claim, even if the same action is a violation of the plaintiff’s
constitutional rights under the Garner standards for deadly force.
[Brown v. City of Clewiston, 848 F.2d 1534 (11th Cir. 1988)]
b) Effect on constitutional torts [§177]
However, in a federal civil action where the plaintiff sues the
defendant for violating the plaintiff’s constitutional rights, the
defendant’s force is privileged only if it meets the Garner standards.
e. Right to invade land [§178]

The privilege of arrest carries with it the privilege of entering another’s land for the
purpose of effecting an arrest. [Rest. 2d §204]
f. Effect of defendant’s misconduct following arrest [§179]

What happens if the initial arrest was privileged, but the defendant subsequently uses
excessive force against the arrestee or unreasonably delays arraignment (so
38
that the arrestee is held an unreasonably long time without being able to get out on
bail)? The modern view is that the person making the arrest is liable only for such
harm as is attributable to his misconduct following the arrest—i.e., only for the force
or detention exceeding the amount that was otherwise privileged. [Dragna v. White,
45 Cal. 2d 469 (1955); Rest. 2d §136]
g. Resisting arrest [§180]

Although the traditional view allowed a person unlawfully arrested to use reasonable
force to resist, the modern trend has been to deny such a privilege. [State v.
Koonce, 214 A.2d 428 (N.J. 1965)] Moreover, in some states, failure to submit to
asserted legal authority is itself a crime [see, e.g., Cal. Penal Code §834a] so that
even though the original arrest was improper, the officer may use reasonable force to
arrest for the crime of resisting arrest.
8. Privilege of Discipline [§181]

Parents and teachers are recognized as having the privilege to use such “reasonable”
force or confinement as they believe “reasonably” necessary for the proper control,
training, and education of children in their care. [Rest. 2d §147] A similar privilege is
recognized in military service. [Rest. 2d §146]
a. But note
Some legislatures and courts have rejected the common law approach as applied to
corporal punishment. [See Rodriguez v. Johnson, 132 Misc. 2d 555 (1986)—
school bus matron who slapped rowdy child was liable for battery although the slap
was not excessive use of force]
39
40
C. Torts to Property
1. Trespass to Land [§182]
Prima facie case:
• Intent
• Intrusion upon Land
• Plaintiff in Possession or Entitled to Immediate Possession
• Causation

To make out a prima facie case for trespass to land, the plaintiff must show a
volitional movement by defendant of some part of his body that results in an
intrusion onto another’s land or that sets in motion a force resulting in such
intrusion.
Example: If D pushes X onto P’s land, there is an invasion of P’s land—but D
and not X is the trespasser (because there was no volitional movement by X).
b. Intent [§184]
The defendant must have intended to do the act that causes the intrusion onto the
land or have known with substantial certainty that his actions would cause entry.
However, he need not realize that the land belongs to another; he is liable for an
intentional entry even though he acts in good faith, believing himself to be the owner.
(1) Distinguish—negligence [§185]
If it appears that the defendant’s invasion of the land was not intentional, he
might still be liable on a negligence theory (see infra, §§276 et seq.).
Example: D drives his automobile down the highway with knowledge that
his luggage rack is not fastened securely, and the rack flies off the car and
onto P’s land. D might very well be held liable for negligence—if P can show
damages. (Damages are required where liability is based on negligence, but not
where the trespass is intentional; see infra, §510.)
(a) Note
Although authorities differ as to whether such an action is properly described
as “trespass” or “negligence,” because the plaintiff must prove actual
damages and punitive damages are not available, the distinction seems
semantic.
41
(2) Distinguish—strict liability [§186]

Alternatively, certain invasions may be actionable on the theory of strict liability
(see infra, §§881 et seq.)—e.g., rocks hurled onto P’s land as the result of D’s
exploding dynamite on neighboring property.
The transferred intent doctrine applies to trespass (see supra, §10).
c. Intrusion upon land [§188]

The defendant’s intrusion may be by personal entry onto the plaintiff’s land or by
causing some third person or thing to enter (e.g., D obstructs a stream so that water
flows onto P’s land). Alternatively, it may be found in the defendant’s failure either
to leave the land, or to remove property therefrom, after permission to remain has
expired. [Rogers v. Board of Road Commissioners, 30 N.W.2d 358 (Mich. 1948);
Rest. 2d §158]
(1) Intrusion by intangibles [§189]
Where the intrusion consists of intangible things such as dust particles, smoke,
vibrations, noise, odors, etc., some courts treat the intrusion as a nuisance (see
infra, §§1107 et seq.) rather than a trespass. Other courts allow liability either
pursuant to trespass or nuisance, or both. [Martin v. Reynolds Metals Co.,
342 P.2d 790 (Or. 1959)]
d. Plaintiff in possession or entitled to immediate possession [§190]

At the time of the trespass, the plaintiff’s interest in the land must be either actual
possession or the right to immediate possession.
(1) “Actual possession” [§191]
The person actually in possession may bring an action for trespass because any
possession is a legal possession as against a trespasser. Thus, even a wrongful
occupier (e.g., adverse possessor) may maintain a trespass action against a
wrongful intruder. [Rest. 2d §157]
(2) “Right to immediate possession” [§192]
If no one is in actual possession, the person who has the right to immediate
possession may maintain the action. (“Immediate” means the holder of some
present possessory estate, as contrasted with a future interest; see Property
Summary.)
(a) Dispossessed owner cannot sue [§193]
If an owner has been ousted from possession by another (e.g., by an
adverse possessor), the owner cannot maintain a suit for trespass because
the dispossessor is in “actual possession.” The owner must bring suit to
eject the person who dispossessed her and make him account for any
damage to the property during the time he held it. [Kelman v. Wilen, 283
A.D. 1113 (1954)]
42
(b) Lease cases [§194]

During the term of a lease, the tenant has both actual possession and the
right to immediate possession. The landlord has neither (i.e., he has only a
future interest—a reversion).
1) Modern rule [§195]
Under the modern rule, either the landlord or the tenant can maintain
trespass. However, the recovery available depends on who sues:
a) If the tenant sues, some courts allow recovery only for interference
with the tenant’s interest (i.e., the right to exclusive possession until
the end of the term). Other courts allow the tenant to also recover
for any permanent injury to the property, but these latter damages
must be held in trust for the landlord.
b) If the landlord sues, most courts allow recovery only for the
damages to the landlord’s interest (i.e., for permanent injury to the
property).
(3) Extent of possession—airspace above land [§196]
There has never been much doubt that a certain amount of the airspace above
land is deemed part of the occupant’s “actual possession,” so that an intrusion
thereof (e.g., by telephone lines or by an overhanging building) can constitute an
actionable trespass. But the question is how high the right to exclusive
possession extends. This issue is of particular importance where the intrusion is
by aircraft.
(a) Above normal flight altitude [§197]
Under modern authority, a landowner has no right to possession of that
portion of the airspace that extends above the minimum altitudes for normal
aircraft flights (excluding landing and takeoff). In effect, such upper airspace
is a “public highway” in which no private possessory rights exist; hence, no
trespass action will lie for its invasion. [United States v. Causby, 328 U.S.
256 (1946)]
(b) Beneath normal flight altitude [§198]
On the other hand, the landowner may have a protectable right to the
airspace below minimum flight altitude.
1) Modern view—“immediate reaches” standard [§199]
Modern authority holds that a landowner’s right to possession extends to
the airspace within the “immediate reaches” of the land, but at the
same time, invasions of such lower airspace are often deemed privileged
as long as they do not “interfere substantially with the landowner’s use
and enjoyment of his land”—
43
i.e., as long as they do not constitute a nuisance. [Rest. 2d §159(2)—

based on United States v. Causby, supra]
a) What constitutes “immediate reaches” [§200]
The term “immediate reaches” of the land has yet to be defined, but
the Restatement suggests that any flight under 50 feet is clearly
within the “immediate reaches,” while any flight over 500 feet
clearly is not. Indeed, any flight within 500 feet of a person or
structure, except for landing and takeoff, would violate Federal
Aviation Administration regulations. [14 C.F.R. §91.119]
(c) Distinguish—nuisance [§201]
Even if the landowner has no right to possession of the airspace involved
(e.g., flights through upper airspace or in airspace not directly over
landowner’s premises), the landowner may be entitled to protection against
unreasonable interference (through noise, fumes, vibrations, etc.) with the
use and enjoyment of the land on a nuisance theory (see infra, §§1107 et
seq.). [Nestle v. City of Santa Monica, 6 Cal. 3d 920 (1972)]
e. Causation [§202]
Finally, for trespass to land the invasion must be caused by the defendant’s
intentional act or some force set in motion thereby. (As to what is sufficient
causation, see discussion of this element, supra, §17.)
(1) Unforeseeable harm [§203]
A trespasser is liable for harm to person or property caused to the owner even if
the harm was not foreseeable. [Baker v. Shymkiv, 451 N.E.2d 811 (Ohio 1983)
—confrontation with trespasser caused owner to have heart attack]
f. Damages [§204]
It is immaterial whether any actual damages were caused. [Rest. 2d §163] Trespass
to land is complete upon the defendant’s intentional intrusion, and the defendant will
be liable for at least nominal damages for harm to the plaintiff’s right to exclusive
possession. Rationale: The defendant’s conduct if repeated might otherwise ripen
into a prescriptive right (see Property Summary). (As to punitive damages, see
supra, §§23-26.)
(1) Exception—chemical pollutants [§205]
If there is a continuing trespass by intrusion of chemical pollutants, the plaintiff
may be required to plead actual and substantial damages. [Bradley v. American
Smelting & Refining Co., 709 P.2d 782 (Wash. 1985)]
2. Trespass to Chattels [§206]

Prima facie case:
44
• Intent
• Invasion of Chattel Interest
• Causation
• Damages (where only intermeddling involved)

To make out a prima facie case for trespass to chattels, the plaintiff must show a
volitional movement by the defendant of some part of his body that results in
dispossession of or damage to the chattels of another. (Note that “chattel,” as used
herein, includes any tangible identifiable object (e.g., computer memory), but does
not include a purely monetary debt. [See CompuServe Inc. v. Cyber Promotions,
Inc., 962 F. Supp. 1015 (S.D. Ohio 1997)])
b. Intent [§208]
It is necessary only that the defendant have intended to deal with the chattel in the
manner in which he did deal; the fact that he may have been acting under a
mistaken claim of right, thinking the chattel belonged to him all the time, is
immaterial.
(1) Note
If intent to deal with the chattel cannot be shown, negligence or strict liability
may possibly be a basis for an alternative cause of action.
The transferred intent doctrine applies (see supra, §10).
c. Invasion of chattel interest [§210]

The defendant’s volitional act (or some force set in motion thereby) must have
resulted in either a “dispossession” or an “intermeddling” with the chattel of
another. [Rest. 2d §217] (The principal reason for this distinction concerns the
damages requirement, below.)
(1) “Dispossession” [§211]
“Dispossession” refers to conduct amounting to the defendant’s assertion of a
proprietary interest in the chattel over the interests of the rightful owner.
Examples include theft or destruction of the chattel, or even a barring of the
rightful owner’s access to it.
(2) “Intermeddling” [§212]
“Intermeddling” embraces conduct by the defendant that does not challenge the
rightful owner’s interest in the chattel, although the defendant may have gone so
far as to carry the chattel away. “Intermeddling” includes throwing a stone at
another’s automobile, beating another’s animals, or stampeding another’s herd of
cattle.
45

The plaintiff must either be in actual possession or must have the right to immediate
possession; this is the same as in a trespass to land (see supra, §§191-192). [John A.
Artukovich & Sons, Inc. v. Reliance Truck Co., 614 P.2d 327 (Ariz. 1980)]
As with a trespass to land, the invasion must have been legally caused by the
defendant’s intentional act or a force set in motion thereby. (Again, for further
discussion of this element, see supra, §17.)
f. Damages [§215]
If the defendant’s conduct amounts to a “dispossession,” or the defendant otherwise
deprives the plaintiff of the chattel’s use, the plaintiff can recover for loss of
possession (e.g., rental value) even if the chattel itself has not been damaged. In
cases of dispossession, the plaintiff may choose to sue for conversion of chattels (see
infra). But if the defendant’s act accomplishes only an “intermeddling” short of
interfering with plaintiff’s possession, a trespass action will not lie absent a showing
of actual damage to the chattel. [Glidden v. Szybiak, 63 A.2d 233 (N.H. 1949)]
(As to punitive damages, see supra, §23.)
3. Conversion of Chattels [§216]

Prima facie case:
• Intent
• Substantial Invasion of Chattel Interest
• Causation

To make out a prima facie case for conversion, the plaintiff must show a volitional
movement by the defendant of some part of his body that results in a substantial
interference with another’s possession of her chattels.
b. Intent [§218]
The defendant need only have intended to deal with the chattel in the manner in
which he actually did deal with it. Thus, if the defendant did to the chattel what he
intended to do, it is no defense that he was not a conscious wrongdoer (as where he
mistakenly thought he was the owner). [Rest. 2d §244]
Example: A towing company is liable for conversion when it refuses to deliver
an impounded car until outstanding charges are paid—even though it mistakenly
believes it has a lien on the car for such charges. [Murrell v. Trio Towing Service,
Inc., 294 So. 2d 331 (Fla. 1974); but see Simonian v. Patterson, 27 Cal. App. 4th
773 (1994)—no conversion in helping daughter move belongings that appeared to be
hers]
46
(1) Note
Remember the possibility of invoking negligence or strict liability as bases for
other actions where the requisite intent to establish a conversion cannot be
shown.
c. Substantial invasion of chattel interest of another [§219]

The invasion required for a conversion claim is greater than that required for a
trespass to chattels claim. The following invasions will suffice:
(1) Substantial dispossession [§220]
If the defendant takes a chattel from another without the other’s consent, bars
the possessor’s access to the chattel, or obtains possession of a chattel by fraud,
there is a conversion. [Russell-Vaughn Ford, Inc. v. Rouse, 206 So. 2d 371
(Ala. 1968)]
(a) Distinguish—trespass to chattels [§221]
However, if the defendant merely intermeddles with the owner’s rights in
the chattel or if the defendant’s interference with the owner’s rights is not
“substantial,” the owner has at most a trespass claim against the defendant.
[Zaslow v. Kroenert, 29 Cal. 2d 541 (1946)—no conversion where
defendant tenant-in-common took plaintiff’s goods and placed them in
storage but did not otherwise exercise dominion over them; no showing of
permanent ouster of possession]
(2) Destroying or altering [§222]
If the defendant destroys or materially alters a chattel, there is a conversion.
(3) Unauthorized use by bailee [§223]
If the defendant receives possession of the chattel as bailee and uses it in such a
manner as to constitute a material breach of his authority, there is a conversion.
[Rest. 2d §228]
(a) Note
An important factor is whether any harm to the chattel was caused by or
during the improper use (e.g., car rented in Boston for trip to Baltimore,
driven instead to Miami, where it is seriously damaged in a collision). This is
usually enough to constitute a conversion—even if the harm was entirely
accidental and not the fault of the bailee! [Perham v. Coney, 117 Mass.
102 (1875)]
(4) Buying or receiving stolen property [§224]
If the defendant buys or receives stolen property, even though he acts in good
faith, there is a conversion because this still involves the requisite intent to assert
ownership rights and to deal with the chattel in a manner inconsistent with the
rights of the true owner. [Rest. 2d §229]
47
(5) Selling or disposing of stolen property [§225]

If the defendant sells or otherwise disposes of the stolen property, even though
acting in good faith, there is a conversion.
(6) Misdelivering a chattel [§226]
If the defendant misdelivers a chattel, there is a conversion even though the
defendant acts in good faith. This covers the situation where a bailee, acting
under an innocent mistake, delivers the chattel to the wrong person; or where he
violates some condition in delivering it, even though he did deliver to the right
person. [Rest. 2d §§234, 235]
Example: If Bailor says, “Give this ring to X if he pays you $10,” and
Bailee delivers the ring without receiving $10, there is a conversion. [Baer v.
Slater, 158 N.E. 328 (Mass. 1927); Marshall & Michel Grain Co. v. Kansas
City, Ft. Scott & Memphis Railroad, 75 S.W. 638 (Mo. 1903)]
(7) Refusing to surrender a chattel on demand [§227]
Where the acquisition itself was not wrongful, there must be a demand for return
of the chattel before there can be a conversion. [Rest. 2d §237; and see
Sporting Goods Distributors, Inc. v. Whitney, 498 F. Supp. 1088 (N.D. Fla.
1980)]
(a) Exception—qualified refusal in order to identify claimant [§228]
A carrier or bailee (e.g., finder) in possession of the chattel is privileged to
make a qualified refusal to deliver, for the purpose of investigating the
claimant’s right to the chattel. [Rest. 2d §239]
(8) Application—multiple acts of conversion [§229]
Note that a defendant’s (or multiple defendants’) conduct may result in several
distinct invasions of the plaintiff’s interest—i.e., several different acts of
conversion.
Example: D steals the chattel, sells it to an innocent purchaser, later buys it
back, and then refuses to give it to P on demand. D has committed four
separate acts of conversion.

The plaintiff must be in actual possession or have the right to immediate possession;
this is the same as in a trespass to land. (See supra, §§191-192.)
This is also the same as in preceding sections (see supra, §§202, 214).
48
f. Remedies [§232]
If the defendant’s conduct amounts to a “dispossession” (i.e., an assertion of
ownership rights in the chattel inconsistent with the rights of the true owner), the
plaintiff will often have a choice of actions:
(1) Replevin, detinue, or claim and delivery [§233]
The plaintiff may obtain return of the chattel and collect damages sustained
during its detention. This remedy is typically governed by state statute and is
often available in the form of pretrial, temporary return of the chattel as well as
permanent relief.
(2) Forced sale damages [§234]
The plaintiff may recover the value of the chattel plus damages for the
dispossession. Hence, satisfaction (i.e., payment) of the judgment operates as a
forced sale of the chattel to the defendant. (See Remedies Summary.)
(a) Measure of value [§235]
The measure of recovery is ordinarily the market value of the goods at the
time of the conversion (plus interest to date of suit). [Nephi Processing
Plant, Inc. v. Talbott, 247 F.2d 771 (10th Cir. 1957)]
1) If the property has a fluctuating value, some courts allow the plaintiff
to recover the highest value between the time of the conversion and the
time of trial. [United States v. Merchants Mutual Bonding Co., 242
F. Supp. 465 (N.D. Iowa 1965)]
2) If the property has no market value, resort may be had to replacement
value or to the actual value of the property to the
49
plaintiff. [Jensen v. Chicago & Western Indiana Railroad, 419 N.E.2d

578 (Ill. 1981)—spare rods for antique steam locomotives]
(b) Effect of offer to return [§236]
An offer by the defendant to return the chattel does not affect the
defendant’s basic liability, but it will mitigate damages recoverable if the
defendant acquired the property innocently and in good faith—provided the
defendant made the offer to return promptly after learning that the plaintiff
was the rightful owner, and provided the chattel was not impaired in value or
condition since originally converted. [Rest. 2d §922] Should the plaintiff
accept the defendant’s offer to return the property, the plaintiff no longer
has an action for conversion (but only for trespass to chattels).
50
D. Defenses and Privileged Invasions of Land and Chattels

1. Consent [§237]
The plaintiff’s consent (expressly or by conduct) to the invasion of her land or
chattels operates as a defense, so that no action by her to impose liability for the
invasion will lie. (See supra, §§100-103.) However, consent may not be effective: as
to trespasses that go beyond the scope of the consent; if consent was obtained
through fraud, duress, or apparent mistake; if the person giving consent lacked
capacity; etc. (see supra, §§104-118). [See Copeland v. Hubbard Broadcasting,
Inc., 526 N.W.2d 402 (Minn. 1995)—fact question whether consent given for
educational purposes extended to secret videotaping for later broadcast; but see
Desnick v. American Broadcasting Cos., supra, §107—consent given to reporters
posing as patients extended to their later reporting on what they observed]
2. Privileged Invasion of Another’s Land to Reclaim Chattels [§238]

The scope of this privilege depends on where the fault lies for the presence of the
defendant’s chattels on plaintiff’s land:
a. Landowner at fault [§239]

If the defendant’s chattels are on the plaintiff’s land because the plaintiff has
tortiously dispossessed the defendant of them (or has received the chattels from
some third person whom she knows has tortiously dispossessed the defendant), the
defendant has a complete privilege to enter the land for the purpose of retaking
possession.
(1) Demand generally required [§240]
Before entry, the defendant must make a demand for permission to enter the
land for the purpose of reclaiming the chattel—unless it appears that the demand
would be futile or that delay would subject the property to danger of harm.
(2) Reasonable entry [§241]
The defendant must effect the entry at a reasonable time and in a reasonable
manner. [Rest. 2d §198]
(3) Extent of privilege [§242]
The privilege is “complete”—meaning the defendant cannot be held liable for
any harm done to the plaintiff’s land in the reasonable exercise of the privilege.
(a) Limitation—no mistake [§243]
The defendant is liable for trespass if he breaks and enters a building
51
other than that in which his chattels are kept. An honest mistake will not
justify a trespass.
(b) Force to person of landowner [§244]
If the plaintiff resists the defendant’s lawful attempts to come onto the
plaintiff’s land, the defendant is privileged to use reasonable, nondeadly
force to the plaintiff’s person, subject to the same conditions as in the
exercise of the privilege of recapture of the chattel (see supra, §§150-155).
In other words, it must appear not only that the defendant was tortiously
dispossessed by the plaintiff or some third party in complicity with the
plaintiff, and that a demand for return of the chattel was made or was
unnecessary, but also that the recapture is effected promptly—“fresh
pursuit.” [Arlowski v. Foglio, 135 A. 397 (Conn. 1926)]
b. Chattel owner at fault [§245]

If the defendant’s chattels are on the plaintiff’s land through the defendant’s own
fault (e.g., where the defendant negligently allows his cattle to wander), the
defendant has no privilege of any type to go onto the plaintiff’s property to recover
possession. Rather, he must bring an action for replevin, detinue, claim and delivery,
etc. [Rest. 2d §200]
c. Act of God [§246]
If the defendant’s chattels are on the plaintiff’s land through the fault of neither the
plaintiff nor the defendant, but rather because of “an act of God” (e.g., storm,
wind, flood, etc.), the defendant has an incomplete privilege to enter the land to
reclaim the chattel.
The privilege is “incomplete” in that the defendant is liable for actual damage
done to the plaintiff’s land in the process of recapturing the chattel, although the
defendant is not liable for damage caused solely from the chattel being deposited
there. [Rest. 2d §198 cmt. k]
Example: A freak windstorm causes D’s tower to fall onto P’s land, where
it crashes into P’s house. In removing the tower, D tramples P’s flower
beds. D is liable for the damage to the flower beds but not to the house.
(2) Conditions of privilege [§248]
Other than the fact that the privilege is “incomplete,” the conditions and scope of
privilege are the same as where the landowner is at fault (above); i.e., entry
must be made at a reasonable time and in a reasonable manner, and ordinarily a
request for permission to enter is required.
52
(3) Caution—necessity to determine underlying causal factor [§249]

If the defendant’s chattels are deposited on the plaintiff’s land through flood,
storm, etc., it is always a question of fact whether the reason was the storm or
flood (“act of God”) or the defendant’s negligence in failing to secure his
chattels, properly construct his property, etc. If the cause is the defendant’s
negligence, the defendant has no privilege (see supra, §245).
d. Third party at fault [§250]

If the defendant’s chattels are on the plaintiff’s land because of the tortious
dispossession by a third party, but the plaintiff is not aware of the presence of the
chattels on the land (or if she does know of their presence, is not aware that the third
party tortiously dispossessed the defendant), the defendant again has an incomplete
privilege to enter the land to reclaim the chattel. [Rest. 2d §198]
e. Limitation—privilege cannot be based on mistake [§251]

In all of the above cases, the defendant must in fact be entitled to possession of the
chattels, both at the time he was dispossessed and at the time he seeks to enter the
plaintiff’s land for the purpose of reclaiming the chattels. If the defendant is not in
fact entitled to possession of the chattels, he cannot claim the privilege—even if he
reasonably and in good faith believes that he is the owner of the chattels. Here again,
an honest mistake will not excuse a trespass.
3. Privilege to Exclude or Evict Trespassing Chattels of Another

a. Conditions of privilege [§252]
A defendant is completely privileged to use reasonable force to evict or exclude
the chattels of another when such force is reasonably believed to be necessary
to protect the defendant’s interest in the exclusive possession of his land or
chattels (e.g., defendant’s shooting a neighbor’s dogs in defendant’s chicken
coop). [Rest. 2d §260]
b. Determining reasonableness [§253]
The “reasonableness” of the force used should be judged by (i) the necessity for
immediate action to prevent the injury or destruction threatened by the invading
chattels; (ii) whether the force used was excessive or only that necessary to
terminate or prevent the intrusion; and (iii) the comparative values of the
property threatened and the chattels to which the force is applied—i.e., in the
above example, are the dogs worth more than the chickens?
4. Privileged Invasion of Another’s Land or Chattels as a Public Necessity

a. Averting public disaster [§254]
A person is completely privileged to enter land or interfere with chattels in the
possession of another if necessary—or if it reasonably appears necessary—to
avert a public disaster. [South Dakota Department of Health v. Heim, 357
N.W.2d 522 (S.D. 1984)—state’s destruction of P’s diseased elk herd was
privileged where
53
necessary to avert public health risk; Rest. 2d §196] The term “person” here
includes both public officials and private citizens.
This is a complete privilege; i.e., the defendant is not liable for any damage
or destruction to the land or chattels involved, as long as the destruction or
damage was done in the proper exercise of the privilege.
(a) Damage to improvements [§256]
The defendant is also completely privileged to break and enter fences
and any buildings, including dwellings.
(b) Force to the person [§257]
Moreover, if the property owner resists the defendant’s attempt to enter
the land or deal with the chattels, the defendant may use whatever force
is reasonably necessary to effect the privilege, including deadly force if
necessary.
b. Detouring around obstructed highway [§258]
A traveler on a public road that is, or reasonably appears to be, impassable has
an incomplete privilege to enter neighboring lands in the possession of another,
“as a matter of public right” in continuing the journey. [Rest. 2d §195]
(1) Conditions of privilege—reasonable need [§259]
The privilege exists only if the entry “reasonably appears” to be necessary.
Courts consider: (i) the availability of alternate routes; (ii) the urgency of the
traveler’s business; and (iii) whether the obstruction on the road could have
been removed by the traveler with reasonable efforts.
This is an incomplete privilege—meaning the defendant is liable for any
actual harm caused to the land during proper exercise of the privilege.
(3) Limitation—traveler at fault [§261]
There is no privilege if the obstruction on the road was caused by the fault
of the traveler.
c. Media [§262]
The First Amendment does not give the media a privilege that allows reporters to
enter private land whenever they seek information—even important information.
[Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 273 So. 2d
810 (Fla. 1976); Le Mistral, Inc. v. Columbia Broadcasting System, 61
A.D.2d 491 (1978)]
5. Privileged Invasion of Another’s Land or Chattels as a Private Necessity

A person is privileged to enter land or interfere with chattels in the possession of
54
another if the entry or interference is—or reasonably appears to be—necessary

to protect any person (the actor, the owner of the land or chattels, or some third
person) from death or serious bodily harm; or if it is—or reasonably appears to
be—necessary to protect any land or chattels from destruction or injury. [Rest.
2d §§197, 263]
(1) “Reasonableness” limitation [§264]
The entry or interference must be reasonable considering the harm that it is
intended to prevent, as compared with the harm to land or chattels that it is
likely to cause.
b. Extent of privilege
(1) Force to person or property [§265]
The defendant may break and enter fences and buildings, including
dwellings. Similarly, if the owner of the land or chattels resists the invasion,
the defendant may use “reasonable” force to effect the privilege. (However,
it is doubtful that deadly force would be privileged because the policy factors
in cases where the invasion is a public necessity would not be present here.)
(2) Privilege incomplete [§266]
The privilege is incomplete; the defendant is liable for all harm done to the
land or chattels in exercise of this privilege. [Vincent v. Lake Erie
Transportation Co., 124 N.W. 221 (Minn. 1910)—D liable for damages to
P’s dock resulting from D’s tying his boat to P’s dock to ride out a storm]
c. Supersedes owner’s privilege to exclude trespassers [§267]
The privilege to invade another’s land or chattels as a private necessity
supersedes the privilege of the possessor of land or chattels to use reasonable
force to protect her property from invasion. Hence, any force used by the
landowner to exclude the entrant is wrongful and subjects the landowner to
liability. Moreover, the landowner is liable to the entrant for the harm the entrant
suffers as a result of being denied entry (e.g., loss of boat, etc.). [Ploof v.
Putnam, 71 A. 188 (Vt. 1908)]
(1) Note
This same principle applies to all of the entry privileges discussed in this
section.
6. Privileged Invasion of Land or Chattels to Abate a Nuisance

A “nuisance” is any unreasonable interference with the use or enjoyment of
another’s property (see infra, §§1107 et seq.). A defendant is completely
privileged to invade the land or chattels of another for the purpose of abating a
55
private nuisance (i.e., a nuisance that affects one or only a few landowners as
opposed to the public at large) created or maintained on the land or chattels of
the other, subject to the following conditions:
(1) Ownership or possessory interest [§269]
The entrant must be the owner or possessor (e.g., tenant) of land or chattels
injuriously affected by the nuisance.
(2) Demand [§270]
The entrant must first make a demand that the nuisance be abated, unless it
reasonably appears that a demand would be impractical or useless.
(3) Reasonableness [§271]
The entrant must enter at a reasonable time and use only reasonable force
to effect the abatement. [Rest. 2d §201]
b. Extent of privilege [§272]
Because this is a complete privilege, the defendant is not liable for any harm
resulting to land or chattels in the proper exercise of the privilege. But the
privilege does not extend to using force against a resisting property owner. [Rest.
2d §201 cmt. k]
(1) Rationale
There is less urgency here than in the “public necessity” or “private
necessity” privileges—so that if the owner resists, the entrant should
withdraw and seek judicial relief.
c. Distinguish—public nuisance [§273]
The privilege discussed in this section applies only to the abatement of a private
nuisance. If the nuisance is a public one (affecting all persons or property in
substantially the same manner), a private individual generally has no privilege of
abatement unless the public nuisance is causing him some injury “peculiar in
kind”—so that as to him it is a private nuisance as well. (See infra, §§1110-
1113.)
7. Effect of Misconduct by Actor

a. While exercising privilege [§274]
As noted above, many of these privileges are conditioned on “reasonableness”;
i.e., the defendant must enter at a reasonable time, in a reasonable manner, etc.
If the defendant is unreasonable in coming onto the land (using excessive force,
etc.), the required conditions do not exist and the defendant’s entry is not
privileged. [Rest. 2d §214(1)]
b. Subsequent to exercise of privilege [§275]
A related problem is the effect of misconduct by an entrant subsequent to an
initially privileged intrusion. For example, if after properly entering through an
56
57
open gate to reclaim his chattels, the entrant unnecessarily tears down the
landowner’s fences to leave, the modern view is that the entrant does not lose the
entire privilege by virtue of his subsequent tortious conduct. Thus, the entrant is
liable only for damages caused by his subsequent misconduct, and no damages can
be recovered for the initially privileged intrusion. [Rest. 2d §214(2)] (The old view
held the entrant liable for the entire episode under the doctrine of “trespass ab
initio.”)
58
Chapter Two:
Negligence
CONTENTS
Key Exam Issues

A. In General §276
B. Negligence (Based on the “Duty of Due Care”) §278
C. Special Duty Questions §545
D. Defenses to Negligence §791
E. Effect of Liability Insurance §865
59
Key Exam Issues
Negligence is the most important area of tort law. It is also the most frequent subject of
exam questions, both because of its importance and because it requires special care in
applying the bare rules to the varied fact situations. Whereas intentional torts tend to be a
series of cubbyholes and categories—both in the prima facie case and in the privileges—this
is not true in negligence. Here, there are a few critically important standards and some rules.
Your task is not so much remembering them as it is applying them to the facts.
Some general guidelines for you to follow:
1. The most important habit to acquire is to go through the sequence of elements
methodically in every case. This means, e.g., finding an appropriate act or actionable
omission before turning to the issue of “duty,” or concluding that there was a breach of
duty before considering causation. Analyzing each element in turn allows you to identify
the troublesome issue and to address each issue in the terms set out in this chapter.
2. Be sure to look at the defendant’s allegedly wrongful act(s) and potentially the
relationship between the plaintiff and the defendant in identifying the appropriate duty to
impose on the defendant. You must never assume that the defendant owes a duty of
care. Even though that is usually the case, you must explain why a duty exists in each
case.
3. Remember that the plaintiff must show actual cause (“cause in fact”) and proximate
cause (“scope of liability”), and you should discuss each of these elements.
4. Finally, determine whether the facts suggest any defense to the negligence (e.g.,
contributory negligence, etc.). Defenses are usually less important in negligence cases;
the focus is almost always on the prima facie case.
A. In General
1. Introduction [§276]
The second broad basis for tort liability is negligence. Here, liability may be imposed for
results that were not intended by the defendant. However, this is not “liability without
fault” (strict liability). It must be shown in every case that the defendant was at fault—
i.e., that the defendant failed to perform some duty that the law required of the
defendant under the circumstances.
2. Duty [§277]
Depending on the circumstances, there may be either (or both) of two types of duties
60
owed: (i) the duty to conduct oneself as a reasonable person would under the same or
similar circumstances—the so-called default duty of due care; or (ii) some special duty,
imposed by statute or case law, which may be in addition to, or in place of, the default
duty of due care (see infra, §§545 et seq.).
B. Negligence (Based on the “Duty of Due Care”)

1. Elements of Negligence [§278]
Prima facie case:
• Act or Actionable Omission by Defendant
• Duty of Due Care
• Breach of Duty (Lack of due care)
• Actual Cause (“Cause in fact”)
• Proximate Cause (“Scope of liability”)
• Damages
a. Note
Courts most often describe negligence as having five or even four elements. The
requirement of an act or omission is typically analyzed as part of the duty analysis,
and many courts (unfortunately) lump the actual cause and proximate cause inquiries
into a unified element called variously “causation,” “legal cause,” or “proximate
cause.”
2. Act or Actionable Omission by Defendant [§279]

In addition to the type of “act” required for intentional torts (i.e., a volitional movement
by defendant of some part of his body), liability for negligence may be predicated on a
willful omission to act when under an affirmative duty to act. Thus, as discussed in the
“special duties” section, infra, the law imposes certain affirmative duties of care (e.g.,
the duty of a person charged with the care of another to aid that person in an
emergency). Failure to perform such a duty is ordinarily not a sufficient “act” for
intentional tort purposes, but it may be sufficient for purposes of negligence. [L.S. Ayres
& Co. v. Hicks, 40 N.E.2d 334 (Ind. 1942)]
3. Duty of Due Care
a. Duty requires two-step inquiry [§280]

Duty is the only element of negligence decided in the first instance by the court.
(Each of the other elements is left to the jury, unless the court decides the element as
a matter of law.) A court’s determination of duty consists of a two-step inquiry: First,
the court decides whether the defendant owed a duty of care. If so, the court must
then define the scope of the duty—i.e., the standard by which the jury will
determine whether the defendant breached its duty.
61
b. Default duty to act as a “reasonable person” would [§281]

If the defendant’s conduct creates a risk of physical harm, the defendant owes a
duty to “do the conduct” with due care. [Restatement (Third) of Torts: Liability for
Physical Harm (“Rest. 3d-PH”) §7(a) (Proposed Final Draft No. 1, 2005)] The
scope of this duty is defined by the “reasonable person” standard: Each person owes
a duty to act as a reasonable person would under the same or similar
circumstances. [Brown v. Kendall, 60 Mass. 292 (1850); Rest. 2d §283]
(1) Objective test [§282]
This is an objective standard, and it is therefore immaterial that the defendant
believed in good faith (subjectively) that he was being careful. The issue is not
what the defendant believed or intended, but rather how the “reasonable person
of ordinary prudence” would have acted. [Vaughan v. Menlove, 132 Eng.
Rep. 490 (1837)]
(2) Test reflects moral judgment [§283]
This standard is aspirational in the sense that it asks not what the ordinary
person in fact does, but what the ordinary person ought to do under the relevant
circumstances.
Example: Many people dial numbers on their cell phones while driving. A
jury might conclude, however, that although such conduct is “ordinary,” it is
nevertheless unreasonable because it results in inattention and the creation of
undue risk.
(3) Standard remains same under all circumstances [§284]

Although the amount of care and the kind of conduct required will vary with the
circumstances, the standard itself never varies. It is always whatever care the
reasonable person would have exercised under the circumstances that existed at
the time of the defendant’s conduct (e.g., the location of the parties, the
conditions of traffic, etc.). [Triestram v. Way, 281 N.W. 420 (Mich. 1938)]
(a) Application—risk of harm [§285]
The greater the foreseeable risk of harm involved and the greater the
amount of that harm, the greater the care required (e.g., the reasonable
62
person no doubt handles chemicals more carefully than less dangerous

products). Whatever the situation, the amount of care required is determined
by the reasonable person standard. [Stewart v. Motts, 654 A.2d 535 (Pa.
1995)—single standard of due care applies to handling of gasoline]
(b) Application—emergency [§286]
Likewise, certain conduct may be acceptable in emergency but not in
nonemergency situations because the need for immediate action justifies acts
that otherwise could be considered unreasonable. However, the standard still
remains the same—i.e., how the reasonable person would have acted under
the circumstances (i.e., in the emergency). [Rest. 2d §296; Rivera v. New
York City Transit Authority, 77 N.Y.2d 322 (1991)]
1) Emergency instructions [§287]
Because the standard always remains the same (i.e., how the reasonable
person would have acted under the circumstances), many states find a
separate emergency instruction unnecessary or superfluous. [Lyons v.
Midnight Sun Transportation Services, Inc., 928 P.2d 1202 (Alaska
1996)] A minority, however, require an instruction reminding the jury
that the defendant should be judged according to what would be
reasonable under the specific emergency circumstances. [Levey v.
DeNardo, 725 A.2d 733 (Pa. 1999)]
(4) Distinguish—special duty situations [§288]
It is important to understand that this “duty of due care” is only applicable where
the defendant’s affirmative conduct creates a risk of physical harm (e.g., the
defendant drives her car into the plaintiff or pollutes the plaintiff’s drinking
water). Because injuries caused by affirmative conduct provide the most
common factual scenario for negligence cases, courts often presume the
existence of a duty without discussion. (On your exam, however, you should
always address and analyze the existence of a duty.) In the following scenarios,
courts decide the existence and scope of a duty pursuant to a different set of
rules: (i) where the plaintiff alleges that it was the defendant’s “nonfeasance,” or
failure to act, that caused the plaintiff’s harm; (ii) where the plaintiff asserts
purely emotional or economic injury; or (iii) where the status of the defendant
(e.g., as a government entity or landowner) raises additional policy
considerations. (See infra, §§545 et seq.)
c. Variances in the generalized standard of due care [§289]

The reasonable person standard applies to all persons—it is flexible enough to cover
any individual or class of individuals. There are several exceptions to this rule,
however:
63
(1) Common carriers [§290]

Although courts have long held that common carriers owe a “higher standard of
care” than do others [Widmyer v. Southeast Skyways, Inc., 584 P.2d 1
(Alaska 1978)—“the highest degree of care”], modern courts are moving in the
direction of imposing the typical reasonable person standard in such cases [see
Bethel v. New York City Transit Authority, 92 N.Y.2d 348 (1998)].
(2) Children [§291]
Minors are held to the reasonable person standard, with the age, intelligence, and
experience of the individual being considered as part of the circumstances.
Thus, the question is: What is to be expected of the reasonable person having
this child’s actual age, actual intelligence, and actual experience, with regard to
such matters as judgment, memory, and risk perception? [Peterson v. Taylor,
316 N.W.2d 869 (Iowa 1982)]
(a) Minimum age [§292]
The general view is that below some age, usually around four, a child simply
cannot make the calculations needed to establish negligence. [Mastland,
Inc. v. Evans Furniture, Inc., 498 N.W.2d 682 (Iowa 1993)—three-year-
old could not be negligent]
1) Minority approach [§293]
Some states declare children under seven conclusively incapable of
committing negligent acts. These same minority states often create a
rebuttable presumption that children between seven and 14 are incapable
of being negligent.
(b) Exception—adult activities [§294]
If children engage in dangerous activities normally undertaken only by adults
(e.g., operating cars, airplanes, motorboats, etc.), no special allowance is
made for their immaturity or limited experience. They are held to the same
standard as an adult, even if they are beginners. [Stevens v. Veenstra, 573
N.W.2d 341 (Mich. 1997)—14-year-old participating in a driver’s education
course; Robinson v. Lindsay, 598 P.2d 392 (Wash. 1979)—13-year-old
driving a snowmobile]
(3) Persons with physical disability [§295]
Persons with physical disabilities (crippled, blind, deaf, etc.) are held to the
reasonable person standard, with their disability as one of the circumstances.
[See, e.g., Hill v. City of Glenwood, 100 N.W. 522 (Iowa 1904); Rest. 2d
§283C]
(a) Knowledge of disability one of the “circumstances” [§296]
Thus, such persons are charged with knowledge that they have a disability,
and may be found negligent for engaging in any activity
64
that a reasonable person with the same disability would not have
attempted.
Example: If D has poor vision, she is held only to the standard of care
that a reasonable person with such vision would exercise. But if a
reasonable person would realize that it was unreasonably unsafe to drive a
car with poor vision, D’s driving under normal circumstances would be
negligent. [Roberts v. Ring, 173 N.W. 437 (Minn. 1919)]
1) Distinguish—treated conditions [§297]
Even with knowledge, if the defendant is using due care to treat his
condition, he will not necessarily be held liable for injuries resulting from
the condition. [Hammontree v. Jenner, 20 Cal. App. 3d 528 (1971)—
epileptic carefully treating his condition, which was under control, was
not liable for crashing his car into a storefront during an unanticipated
epileptic seizure]
(b) Distinguish—voluntary intoxication [§298]
If the physical impairment results from voluntary intoxication, it is
disregarded in determining liability; i.e., a person who uses alcohol or drugs
is held to the same standard as would be expected if she were not under
their influence. [Rest. 2d §283C]
(4) Adults with mental deficiency [§299]
Adults with mental deficiencies are judged by the reasonable person standard
without any allowance for their mental deficiency. Hence, although a child’s
intelligence is taken into account in determining whether he was negligent
(supra), an adult’s is not! This is true whether the defendant’s limitation is
subnormal intelligence or outright insanity. [Breunig v. American Family
Insurance Co., 173 N.W.2d 619 (Wis. 1970); Rest. 2d §283B]
(a) Rationale
The fear of fraud, the difficulty of determining what kind of mental
aberration will lessen the care owed, the difficulty of applying any reduced
standard, and the fear of complicating tort law the way the insanity defense
has complicated criminal trials are some of the reasons for this rule. (See
Criminal Law Summary.)
(b) Distinguish—contributory negligence [§300]
Note, however, that a few cases have allowed evidence of the plaintiff’s
low intelligence in determining whether his conduct was contributorily
negligent (see infra, §797). [Lynch v. Rosenthal, 396 S.W.2d 272 (Mo.
1965)]
(5) Special knowledge and skills [§301]
All persons are held to certain minimum standards in their activities. [Delair
65
v. McAdoo, 188 A. 181 (Pa. 1936)] If they have acquired special competence,
they are held to a standard that takes account of their superior knowledge or
skills. [Rest. 2d §289(b)] As opposed to particular knowledge or skill, higher-
than-average natural abilities such as intelligence or athleticism are typically not
considered.
(a) Learners or beginners [§302]
An inexperienced person who engages in activities involving a known risk of
harm to others (e.g., driving a car on a public street) is held to the same
standard of care as an experienced reasonable person. Rationale: Those
who engage in such activities—rather than the innocent victim—should bear
the risk of loss. [Stevens v. Veenstra, supra, §294—14-year-old
participating in a driver’s education course; Dellwo v. Pearson, 107 N.W.2d
859 (Minn. 1961)—operation of motorboat; Rest. 2d §299 cmt. d]
(b) Profession or trade [§303]
If the defendant undertakes to render any service in a recognized profession
or trade (builder, attorney, plumber, etc.), she is held, at a minimum, to the
standard of care customarily exercised by members of that profession or
trade—whether or not she personally possesses such skills. [Heath v. Swift
Wings, Inc., 252 S.E.2d 526 (N.C. 1979); Rest. 2d §299A]
1) General rule—“same or similar” community standard [§304]
Generally, persons engaged in a trade or profession—except physicians,
see infra, §306—are required to exercise the degree of care that would
be exercised by members of their profession nationwide. [Rest. 2d
§299A cmt. g]
a) Rationale
As the dissemination of knowledge and information increases,
professionals and those in the trades in most localities are not only
confronting the same problems, but also have the same knowledge at
their disposal to solve those problems. This means that the standard
will be “national” (when there are no significant differences among
communities).
2) Medical profession
a) Older view—local standard [§305]
Some early cases limited the standard of care for physicians to that
of other physicians in the same community or locality.
b) Modern trend—“same or similar” community standard [§306]
However, this distinction is disappearing in modern cases so that, as
with other professionals, courts are holding that
66
physicians must meet at least the standard of care existing in the

“same or similar” communities—and experts from such
communities may testify as to the appropriate standards (i.e.,
country doctors will be held to the same standard of care as other
country doctors, but not necessarily to the same standard as big-city
doctors). [Tallbull v. Whitney, 564 P.2d 162 (Mont. 1977)]
1/ Nationally certified physicians [§307]
A growing number of courts impose a national standard of care
on nationally certified medical specialists. [Robbins v. Footer,
553 F.2d 123 (D.C. Cir. 1977)—board-certified obstetrician;
Sheeley v. Memorial Hospital, 710 A.2d 161 (R.I. 1998)—
allowing expert testimony of New York doctor in case involving
defendant Rhode Island doctor]
c) Establishing a standard [§308]
To prevail, the plaintiff must establish the particular standard of
medical care that is required and show a departure from that
standard. Because the standard is measured in relation to
professional understandings, the plaintiff must generally present
expert testimony to establish the standard.
1/ Note
The modern trend permits experts in one specialty to testify
against those in another field of medicine if they have sufficient
knowledge of the other field. [Melville v. Southward, 791 P.2d
383 (Colo. 1990)—orthopedic surgeon may testify if shown to
be familiar with standards of podiatry or if the standards of the
two are shown to be substantially identical]
2/ Obvious occurrence exception [§309]
If a physician’s conduct is so egregious and obvious that a
layperson could identify the breach of duty, no expert testimony
is needed to establish the duty of care and the breach. [Heimer
v. Privratsky, 434 N.W.2d 357 (N.D. 1989)—allowing toxic
substance to come in contact with patient’s eye obviously
negligent to layperson]
d) Controversial techniques [§310]
If respectable medical opinions differ as to the best technique, courts
will allow a doctor to follow either view [Furey v. Thomas
Jefferson University Hospital, 472 A.2d 1083 (Pa.
67
1984)] or even one followed by a “reputable and respected” minority

of the medical profession [Gala v. Hamilton, 715 A.2d 1108 (Pa.
1998)].
e) Informed consent [§311]
Doctors have a duty to disclose relevant information about benefits
and risks inherent in proposed treatment, alternatives to that
treatment, and the likely results if the patient remains untreated (see
supra, §113). [Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.
1972)] That duty may extend to informing the patient about
noninvasive options. [Matthies v. Mastromonaco, 733 A.2d 456
(N.J. 1999)—failure to alert patient to all plausible options is
actionable] This obligation is not extended to hospitals or nurses, but
extends only to the physicians and surgeons themselves. [Wells v.
Storey, 792 So. 2d 1034 (Ala. 1999)]
1/ Standard of disclosure [§312]
The courts are split between those that require only the level of
disclosure customary in the medical profession [Woolley v.
Henderson, 418 A.2d 1123 (Me. 1980)] and those that require
disclosure of what the doctor should reasonably recognize would
be material to the patient’s decision [Korman v. Mallin, 858
P.2d 1145 (Alaska 1993)].
a/ Applications
Disclosure of a 1-3% chance of pregnancy has been
required. [Hartke v. McKelway, 707 F.2d 1544 (D.C. Cir.
1983)] But a trier of fact could conclude that a chance of
death of 8.6 in one million need not be disclosed. [Smith v.
Shannon, 666 P.2d 351 (Wash. 1983)]
2/ Exceptions [§313]
Three exceptions to the doctor’s duty of disclosure are
recognized:
a/ Emergencies [§314]
There is no duty of disclosure in an emergency situation
(e.g., where the patient is unconscious or unable to
comprehend, and prompt medical treatment is required).
b/ Therapeutic privilege [§315]
If the patient is so distraught or unstable that the physician
reasonably concludes that full disclosure
68
would be detrimental to the patient’s well-being, there may

be no duty to disclose. (But the burden of proving these facts
is on the doctor.) [Canterbury v. Spence, supra] But the
fact that an adult may decline lifesaving treatment does not
justify imposing treatment over objection. [Shine v. Vega,
709 N.E.2d 58 (Mass. 1999)]
c/ Lack of experience [§316]
An inexperienced physician does not have a duty to inform
his patient that he has never before performed the procedure
he is recommending. [Whiteside v. Lukson, 947 P.2d 1263
(Wash. 1997)] Similarly, a cosmetic surgeon has no duty to
inform his patient that he is not a plastic surgeon and does
not have hospital privileges where he did not claim to be
anything more than he was. [Ditto v. McCurdy, 947 P.2d
952 (Haw. 1997)]
3/ Causation [§317]
In informed consent cases, most courts follow the objective view
and hold that the patient must show that if properly informed
neither the patient nor a reasonable person in similar
circumstances would have undergone the procedure. [Reikes v.
Martin, 471 So. 2d 385 (Miss. 1985); Largey v. Rothman, 540
A.2d 504 (N.J. 1988)]
a/ Minority view [§318]
Some jurisdictions adopt a subjective standard by which
plaintiffs establish causation by persuading the trier of fact
that the plaintiff personally would not have consented to the
procedure. [Scott v. Bradford, 606 P.2d 554 (Okla. 1980);
Arena v. Gingrich, 748 P.2d 547 (Or. 1988)]
4/ Revoking consent [§319]
As long as viable medical options remain, a patient may revoke
her consent. If she does so (or if there is a substantial change in
circumstances, either medical or legal), a physician is required to
have a new informed consent discussion. [Schreiber v.
Physicians Insurance Co. of Wisconsin, 588 N.W.2d 26 (Wis.
1999)—patient may revoke consent to vaginal delivery after four
hours of labor]
69
d. The unforeseeable plaintiff—to whom is the duty of care owed? [§320]
If a reasonable person would not have foreseen injury to anyone from the
defendant’s conduct, most courts hold that there is no duty owed to a person who is
unexpectedly hurt by the defendant’s actions. There is a split of authority, however,
in cases where the defendant could reasonably have foreseen danger to someone, but
there is some question as to whether injury to the particular plaintiff was
foreseeable. The split is embodied by the majority and dissenting opinions in the
Palsgraf case, discussed below.
(1) Broad view—if duty owed to anyone, duty owed to all [§321]
The broad view is that the defendant’s duty of due care is owed to anyone in the
world who suffers injuries as a result of the defendant’s breach of
70
duty, leaving the foreseeability of a particular plaintiff a matter to be determined

in the context of proximate cause. [Rest. 3d-PH §7 cmt. j; Gipson v. Kasey,
150 P.3d 228 (Ariz. 2007)—foreseeability not a relevant consideration in court’s
duty analysis] (As to what constitutes “proximate cause,” see infra, §§442 et
seq.)
(a) Note
This is the “Andrews view,” referring to the dissenting opinion written by
Justice Andrews in the famous Palsgraf case. [Palsgraf v. Long Island
Railroad, 248 N.Y. 339 (1928)]
(2) Narrow view—duty owed only to “foreseeable plaintiffs” [§322]
The contrasting view is the “foreseeable plaintiff” or “zone of danger”
doctrine espoused by Justice Cardozo in his majority opinion in the Palsgraf
case: Defendant owes a duty of care only to those persons as to whom the
reasonable person would have foreseen a risk of harm under the circumstances.
Therefore, before the court may impose a duty of care on the defendant, it must
determine that the reasonable person would have foreseen a risk of harm to the
plaintiff or a class of persons to which the plaintiff belongs—i.e., that plaintiff
was a “foreseeable plaintiff,” located in a foreseeable “zone of danger.” [See
also Rest. 2d §281(b)]
Example: A wife’s paramour owes her husband a duty not to transmit to
him a sexually transmitted disease because a spouse is a foreseeable victim
of adultery. [Mussivand v. David, 544 N.E.2d 265 (Ohio 1989)]
(3) Application
(a) Palsgraf facts [§323]
The circumstances of the Palsgraf case clearly illustrate the two views. X, a
passenger, was running to catch one of D’s trains that was beginning to
move. In helping X board the train, one of D’s employees dislodged an
innocent-looking package from X’s arms. The package contained fireworks,
which exploded so violently that the concussion knocked over some heavy
scales, 25 to 30 feet away at the other end of the platform. The scales fell
upon and injured P.
1) “Cardozo view” [§324]
Under the “Cardozo view,” D breached no duty to owed P. Although a
risk of harm to X or X’s package might have been foreseeable (or even a
risk to persons near X if he should trip while being helped or drop the
package on someone’s feet), a reasonable person would not have
foreseen any risk to P (who was a considerable distance away). Hence P
was not within the “zone of danger,” and D owed her no relevant duty
of due care. (X, since
71
he knew he was carrying explosives, would owe a duty of due care to a

wider group.)
2) “Andrews view” [§325]
Under the “Andrews view,” however, D owed P a duty of due care. In
helping a passenger board the moving train, D had a duty to that
passenger, those nearby, and anyone else in the world who might be
injured because of D’s careless conduct. (Remember that finding a duty
is only one element of the tort. Andrews still had to consider proximate
causation questions, among others.)
3) Judge vs. jury [§326]
The judge/jury issue is at the heart of the Palsgraf debate. Justice
Cardozo felt that judges ought to determine the foreseeability of the
plaintiff, whereas Justice Andrews wanted to leave such questions to the
jury as a matter of proximate cause. The matter is made more
complicated in Cardozo jurisdictions because it is often difficult to
discern whether a case involves plaintiff foreseeability or foreseeability
of the type or manner of injury. For example, is the issue in Palsgraf
best characterized as whether harm to P was foreseeable, or whether
harm by means of an explosion was foreseeable? This characterization
can be important in Cardozo jurisdictions because if the issue is
characterized as plaintiff foreseeability, it is a duty question to be
decided by the court. If the issue is characterized as risk foreseeability, it
is likely to be decided by the jury as part of proximate cause.
(b) Rescuers [§327]
If the defendant owes a duty to someone, it generally follows that the duty is
also owed to any other person who goes to the rescue of the person
imperiled. The theory is that “danger invites rescue.”
72
1) Foreseeable plaintiffs [§328]

Even under the narrow “Cardozo view,” the “zone of danger” includes
any person who comes to the rescue of one imperiled by the defendant’s
negligent conduct. The rescuer, therefore, is as much a foreseeable
plaintiff as the person actually imperiled, and hence is within the scope
of the defendant’s duty. [Wagner v. International Railway, 232 N.Y.
176 (1921)]
2) Harm caused by rescuer [§329]
Likewise, the above result and reasoning apply where the rescuer causes
injury to another in a reasonable rescue attempt.
Example: D negligently imperils X. Y attempts to come to X’s aid,
and in so doing injures P. D’s duty of due care extends to P. (Same
result where the rescuer injures or aggravates the injury to X.)
3) Defendant in peril from own negligence [§330]
The same result and reasoning also apply even though the person
imperiled by the defendant’s conduct is the defendant himself.
Example: D (through his own negligence) places himself in a
position of peril. P, seeing this, reasonably attempts to come to D’s
aid and is injured in so doing. D’s duty of due care extends to P.
[Lowrey v. Horvath, 689 S.W.2d 625 (Mo. 1985)]
4) Limitation—reasonableness [§331]
Keep in mind, however, that in every case the rescue attempt must not
be foolhardy under the circumstances (see infra, §794). If the attempt
was foolhardy, the original defendant may not be liable for the resulting
injuries (see infra, §493). In a comparative negligence state, the
defendant’s liability may be reduced by the plaintiff-rescuer’s fault in
acting rashly. [Bridges v. Bentley, 769 P.2d 635 (Kan. 1989)]
5) Limitation—professional rescuers [§332]
Where professionals undertake rescue operations, it is generally held that
the person whose negligence occasioned the need for rescue is not liable
for harm suffered by the rescuers. [Maltman v. Sauer, 530 P.2d 254
(Wash. 1975)] This situation is analogous to the case in which a person’s
carelessness requires the services of firefighters, who injure themselves
putting out the fire (see infra, §841).
73
e. Limitations on duty [§333]

Even if a person’s actions created a risk of harm, courts sometimes analyze the
generalized fact pattern of a case and its various policy implications to decide
whether to impose a duty and, if so, to determine its scope. This is also true where
the defendant’s actions did not create a risk, but where an affirmative duty might
exist (see infra, §§551 et seq.). “No-duty” decisions typically follow one of two
patterns of reasoning:
(1) California factors [§334]
A growing number of courts, beginning with California, have been explicit in
identifying the considerations that go into deciding whether to impose a duty.
These include, in addition to foreseeability of harm to the plaintiff: (i) the
closeness of the connection between the defendant’s conduct and the injury; (ii)
the moral blame attached to the defendant’s conduct; (iii) the policy of
preventing future harm; and (iv) the extent of the burden to the defendant and
the consequences to the community of imposing a duty of care. [Randi W. v.
Muroc Joint Unified School District, 14 Cal. 4th 1066 (1997)—based on list
of factors, court held that victim of sexual assault could maintain action against
school districts which, despite knowing prior charges of sexual misconduct had
been leveled against former employee, positively recommended him for job in
school district where he assaulted victim; Knoll v. Board of Regents, 601
N.W.2d 757 (Neb. 1999)—list of factors; Hopkins v. Fox & Lazo Realtors,
625 A.2d 1110 (N.J. 1993)] Other courts impose similar limitations on duty but
may do so by focusing on the relationship that exists between the parties.
(2) Special problems of principle or policy [§335]
Courts sometimes decline to impose a duty, even if the defendant’s actions
created a risk of harm, due to some compelling consideration of principle or
policy. The following is a nonexhaustive list of such considerations. Further
examples and discussion may be found infra, §§545 et seq.
(a) Crushing liability [§336]
Some courts fear crushing liability in situations that do not involve privity
relationships even though the victims are foreseeable. [Strauss v. Belle
Realty Co., 65 N.Y.2d 399 (1985)—fear of extended liability of a public
utility led court to deny duty for injuries incurred during blackout by tenant
in a common area; and see infra, §581]
(b) Conflict with other duties [§337]
If a doctor negligently performs an abortion, the physical injury to the
mother might foreseeably cause birth defects in a child yet to be conceived.
But because the doctor’s duty to a child not yet conceived would be difficult
to define and might create a conflict with the duty owed the patient, and any
such duty might last for generations, a court may hold that a duty to a future
child does not exist. [See Albala v. City
74
of New York, 54 N.Y.2d 269 (1981); Grover v. Eli Lilly & Co., 591
N.E.2d 696 (Ohio 1992); but see Renslow v. Mennonite Hospital, 367
N.E.2d 1250 (Ill. 1977)—duty to child born nine years after D negligently
transfused blood to mother]
(c) Concern for social institutions [§338]
Some courts refuse to impose a duty, despite the clear creation of a risk, due
to a concern for the continuance of important social institutions.
[Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990)—no duty owed by
golfer whose errant ball struck another golfer’s head because to do so
“might well stifle the rewards of athletic competition”; Zurla v. Hydel, 681
N.E.2d 148 (Ill. 1997)—same regarding hockey injury]
f. The line between act and omission [§339]

In some cases, it is difficult to judge whether the plaintiff’s injury stemmed from the
defendant’s negligent action (misfeasance) or negligent failure to act in the face of a
duty to do so (nonfeasance). The distinction is important because if the court
considers the case to be one of misfeasance, the default rule is that a duty of
reasonable care exists. If the court concludes that the facts implicate a claim of
nonfeasance, the default rule is that no duty exists (absent a special affirmative duty,
see infra, §§545 et seq.).
(1) Note
The Third Restatement has drawn the line rather precisely and in favor of
misfeasance. Pursuant to that standard, the default duty of due care arises when
the actor’s conduct is a factual cause of physical harm or when the actor’s
conduct creates a risk of harm. [Rest. 3d-PH §§6, 7] Considering the ease with
which factual causation is satisfied, this standard is indeed inclusive.
(2) Misfeasance or nonfeasance? [§340]
The following is a nonexhaustive list of scenarios that courts sometimes find
difficult to categorize as misfeasance or nonfeasance:
(a) Negligent entrustment [§341]
When a defendant provides the instrumentality of harm to another, courts
sometimes characterize such conduct as having created a risk of harm;
others characterize the claim as a negligent failure to carry out an affirmative
duty to warn or protect the injured party (see infra, §597).
Example: D’s relative, who provides D with money to purchase a
vehicle despite knowing of D’s poor driving record and substance
abuse, may be held liable for negligent entrustment if D’s passenger is
injured. [Vince v. Wilson, 561 A.2d 103 (Vt. 1989)]
75
Example: A service station owner who sells gasoline to a sixyear-old

child owes a duty to the child and her playmates because entrusting a
child with a dangerous substance creates a risk of harm. [Jones v. Robbins,
289 So. 2d 104 (La. 1974)]
(b) Negligent/nonnegligent creation of risk [§342]
If a defendant’s conduct harms the plaintiff or puts the plaintiff in a position
of danger, the defendant has a duty to warn the plaintiff of or rescue the
plaintiff from her predicament (see infra, §§554-555). A court might
determine that such a duty is within the scope of the defendant’s duty of
“reasonable care” that arises from the defendant’s creation of a risk, or a
court might consider the duty to be of the affirmative, nonfeasance type.
Example: When D’s train nonnegligently severs P’s arm, D has a duty
to render assistance. [Maldonado v. Southern Pacific Transportation
Co., 629 P.2d 1001 (Ariz. 1981)]
1) Note
Whether the defendant’s conduct in fact created a risk is sometimes a
difficult conclusion. [Harper v. Herman, 499 N.W.2d 472 (Minn. 1993)
—refusing to impose on boat captain an affirmative duty to warn guest
not to dive into shallow water even though captain may have created a
risk of harm by choosing to moor in shallow water]
(c) Voluntary undertaking [§343]
Although a person does not owe a duty to warn of or rescue another from a
risk arising from a third source, if a defendant voluntarily undertakes to
warn or rescue, the defendant owes a duty to do so with reasonable care
(see infra, §§560-568). Although some courts consider such a duty to be an
affirmative duty to rescue, it seems better characterized as part of the
defendant’s duty of reasonable care arising from the defendant’s conduct.
[Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976)]
(d) Negligent misrepresentation [§344]
Where a plaintiff charges a defendant with negligently misrepresenting
some fact on which the plaintiff relied to her detriment, whether the
defendant’s duty arises as a result of misfeasance or nonfeasance is often a
difficult call. [Randi W. v. Muroc Joint Unified School District, supra,
§334]
Example: D recommends X for a job at P’s company. If the
recommendation reads, “X was always on time for work,” then P’s
claim is more easily characterized as one of nonfeasance—i.e., D
76
should have warned of X’s shortcomings, but did not. However, if the
recommendation reads, “X is an excellent employee in every respect,” then
X’s words (i.e., affirmative conduct) might have themselves created the risk
of harm.
1) Distinguish—misrepresentation [§345]
Negligent misrepresentation that results in physical harm must be
distinguished from a misrepresentation resulting in purely economic
injury (see infra, §§1622 et seq.).
(e) Encouraging dangerous acts [§346]
A defendant has a duty not to create an unreasonable risk of harm from
third parties. Thus, a radio station has been held liable for the death of a
motorist whose car was forced off the road by a teenager racing to win a
radio contest by being the first to locate a “traveling disc jockey.” [Weirum
v. RKO General, Inc., 15 Cal. 3d 40 (1975)] Although a court might
conclude that the risk was created by the teenager, it seems clear that the
defendant also participated in creating the risk and therefore also owed a
duty to do so with reasonable care.
4. Breach of Duty [§347]

Once it is shown that the defendant owed a duty of due care to the plaintiff, it must then
be shown that the defendant breached this duty through an act or omission exposing
others to an unreasonable risk of harm. These three elements—i.e., an act or omission
by the defendant, a duty of due care owed to the plaintiff, and a breach of duty by
creation of an unreasonable risk of harm—together constitute a “negligent act.”
(However, the elements of factual causation, proximate cause, and damages, infra,
must also be satisfied in order to establish liability for the negligent act—i.e., to establish
“negligence.”) Whether the defendant has breached a duty of due care requires a two-
step demonstration: (i) proof of what actually happened, and (ii) a showing that the
defendant acted unreasonably under those circumstances.
a. Proving what actually happened [§348]

There are two basic methods of proof available for the plaintiff to establish what in
fact occurred:
(1) Direct evidence [§349]
In some cases, direct evidence may be available.
Example: A broken ladder rung in a negligence case against the ladder’s
manufacturer can be used as direct evidence of negligence.
77
Example: N, a neighbor, observes D throw a brick from his second floor

window and sees the brick strike P in the street below; N’s testimony as to
what occurred is direct evidence.
(2) Circumstantial evidence [§350]
In other situations, the plaintiff may rely on circumstantial evidence to create an
inference of what occurred.
Example: P is injured when she trips over something in D’s darkened
theater. If P can show that a pipe was lying near the place at which she
tripped and that a scuff mark on her shoe was made by a pipelike object when
she fell, a jury could infer that P fell over the pipe.
Example: If P, a customer who slips in the supermarket, must show that the
slippery substance was on the floor long enough for a reasonable market to
find it and remedy the condition, P may do this by showing that the product on
the floor was “dirty and messy.” [Negri v. Stop and Shop, Inc., 65 N.Y.2d 625
(1985)]
(a) Limitation—similar accidents [§351]
Parties may not introduce evidence of similar accidents or occurrences (or
the absence thereof), unless the past acts occurred under substantially
similar circumstances. As a result, the owner of an office building may not
defend himself against a suit brought by a pedestrian who slipped on a wet
floor within the building, by presenting evidence of the building’s safety
record. Such a record would not be relevant to the specific circumstances on
the day in question. [Moody v. Haymarket Associates, 723 A.2d 874 (Me.
1999); and see Evidence Summary]
b. Determining whether conduct proved is unreasonable [§352]

The second step in determining whether there was a breach of duty by the defendant
(i.e., a negligent act) is whether the defendant acted unreasonably under the
circumstances present at the time of the defendant’s conduct. This determination is
highly fact-specific and is therefore reserved for the jury [Stagl v. Delta Airlines,
Inc., 52 F.3d 463 (2d Cir. 1995)] unless, on a motion for summary judgment or the
like, a court can rule as a matter of law that “no reasonable jury” could find in favor
of the nonmoving party (see infra, §360). Courts do not typically give juries precise
instructions on how to analyze reasonableness, leaving juries to apply their own
moral judgment, common sense, and understanding of community norms. Some
courts have indicated that reasonableness requires a balancing of the risks and
benefits of the conduct. [Rest. 2d §291] This manner of reasoning was reduced to an
algebraic formula by Judge Learned Hand in United States v. Carroll Towing Co.,
159 F.2d 169 (2d Cir. 1947).
(1) Risk—“magnitude of the risk” [§353]
The risk of the defendant’s conduct is a combination of (i) the foreseeable
78
severity of damage that might occur, and (ii) the foreseeable probability that the
damage will occur. Thus, in each situation, consider the social value that the law
attaches to the interests endangered by the defendant’s conduct, the foreseeable
likelihood of an actual injury by the conduct, and the foreseeable extent or
degree of injury threatened (including the number of individual interests
imperiled). [United States v. Carroll Towing Co., supra]
(2) Benefit—“utility of the conduct” [§354]
The benefit of running the risk is usually measured by the expense or
inconvenience spared in not taking safety precautions. In determining whether
the defendant’s conduct is otherwise justified, consider the social value that the
law attaches to the type of conduct involved, the foreseeable likelihood that the
conduct will achieve some desirable end, the availability of safer alternative
methods, and the costs of such methods. [United States v. Carroll Towing
Co., supra]
(3) Application of balancing test—risks vs. benefits analysis [§355]
The defendant’s conduct will be considered unreasonable—and therefore
negligent—if the magnitude of the risk that would be perceived in advance by a
reasonable person in the defendant’s position outweighs its utility. Judge Hand
stated this analysis as a formula: Breach = Probability × Loss > Burden on the
defendant of taking the risk (commonly abbreviated PL > B). [United States v.
Carroll Towing Co., supra] Obviously, this determination will vary in each
case, depending on the specific circumstances involved.
(a) General rule [§356]
Where the risk of injury is low and the cost of alternative (safer) methods is
high, the defendant’s conduct is more likely to be considered reasonable
(i.e., nonnegligent). [McCarty v. Pheasant Run, Inc., 826 F.2d 1554 (7th
Cir. 1987)]
(b) Distinguish [§357]
Where the utility of the conduct is slight and less dangerous alternatives are
available at little cost or effort, it is more likely that negligence will be found
—especially if the risk of injury is significant. [Pease v. Sinclair Refining
Co., 104 F.2d 183 (2d Cir. 1939)—D provided demonstration kit with water
in bottles labeled “kerosene”; a simple warning or an accurate label would
have avoided the accident that occurred when P used what was thought to
be “kerosene”]
(c) Cost of safeguarding [§358]
The costs of safeguarding against the risk must always be measured by the
foreseeable likelihood and gravity of damage. The more probable and more
grievous the harm, the greater the effort and expense that must be
undertaken to avoid that harm. And conversely, the less likely the harm, the
less effort and expense that need be undertaken.
79
(This explains why shooting a gun in a densely populated city is more likely
to be negligent than engaging in the same activity in a sparsely populated
area.)
(d) Limited use of the standard [§359]
In some circumstances (e.g., where factors other than economic risk and
benefit enter reasonableness determinations), strict application of a risk-
benefit analysis leads to counterintuitive, and likely unacceptable, results.
For this and other reasons, trial courts generally do not instruct the jury on
the Learned Hand Formula, leaving them only with the general “reasonable
care under the circumstances” standard. Appellate courts are more likely to
invoke the Hand Formula in assessing whether there was sufficient evidence
of negligence, although use by appellate courts is by no means pervasive.
Example: An auto manufacturer locates the gas tank of a particular car
next to the car’s rear bumper, knowingly exposing the car to a
substantial risk of explosion on rear impact. If the design saves millions of
dollars in manufacturing costs, and if the dollar value of the inevitable
fatalities does not exceed (or equal) such savings, then the manufacturer’s
actions would be deemed reasonable pursuant to the Hand Formula.
Nonetheless, a reasonable jury might conclude that the manufacturer’s
knowing trade of human life for cost savings is unreasonable. [See
Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757 (1981)]
c. Judge vs. jury

(1) Decision as matter of law creates “mini-rules” [§360]
Although the breach issue is typically reserved for the jury, on a motion for
summary judgment (or directed verdict, or the like) a court may decide the issue
by holding that no reasonable jury could find in favor of the
80
nonmoving party. Each time that a court makes a breach decision “as a matter of
law,” it creates a “mini-rule” regarding what conduct is reasonable or
unreasonable in a given set of facts. Some courts find this attractive in light of
the collective experience the court gains over many trials regarding community
norms of conduct. [See, e.g., Baltimore & Ohio Railroad v. Goodman, 275
U.S. 66 (1927)—holding, as a matter of law, that reasonableness dictates that a
motorist must get out of his car and look both ways before crossing railroad
tracks]
(2) Jury decision avoids unjust future results [§361]
Most courts, however, feel reluctant to take the breach question from the jury in
all but the clearest cases, largely because creating “mini-rules” intrudes on the
province of the jury and runs the danger of producing unjust results as those
rules are applied to future cases with slightly different facts. [See, e.g., Pokora
v. Wabash Railway, 292 U.S. 98 (1934)—limiting Goodman, supra, to its facts,
particularly where to get out and look both ways would actually increase the
danger to the motorist]
(3) Breach is fact-specific [§362]
At the very least, courts agree that decisions of breach as a matter of law should
be narrowly limited to the facts of the case.
d. Res ipsa loquitur (“the thing speaks for itself”) [§363]

In certain cases, the very fact that a particular harm has occurred may itself tend
to establish both parts of the breach requirement: what happened and that it was
through the defendant’s unreasonable conduct. In such cases, the law may permit an
inference or a presumption that the defendant was at fault under the doctrine of res
ipsa loquitur.
(1) Essential elements [§364]
Three essential factors must be established to invoke res ipsa loquitur. [See, e.g.,
Hull v. L. & A. Montagnard Social Club, Inc., 498 A.2d 597 (Me. 1985);
Anderson v. Service Merchandise Co., 485 N.W.2d 170 (Neb. 1992)] They
are set out in the chart below.
81
(a) Accident of a type that normally does not occur without negligence
[§365]
If the accident is one that normally does not occur in the absence of
negligence, the courts hold that the occurrence itself will permit the
conclusion that someone was negligent. [Brannon v. Wood, 444 P.2d 558
(Or. 1968)]
Examples: Injuries suffered from eating canned spinach containing
large chunks of glass, or from the collapse of bleachers at a baseball
game, or from a barrel falling from an upper floor of a building are all
examples of events that normally do not occur unless someone is negligent.
[See, e.g., Byrne v. Boadle, 159 Eng. Rep. 299 (1863)]
Example: Similarly, a spare tire coming loose from its cradle

underneath a tractor-trailer and crashing into the vehicle following the
tractor-trailer is the type of accident that does not occur but for the failure of
someone to exercise reasonable care. [McDougald v. Perry, 716 So. 2d
783 (Fla. 1998)]
1) Distinguish—accidents without fault [§366]
However, many accidents can occur without anyone’s fault—e.g., a tire
blowout, injuries resulting from a falling tree or from fires of unknown
origin. [Klein v. Beeten, 172 N.W. 736 (Wis. 1919)] In these cases,
without further evidence, res ipsa loquitur cannot be applied.
2) Necessity for expert testimony [§367]
Sometimes, expert testimony is required to determine whether negligence
can be inferred from the happening of the accident.
Example: In medical malpractice cases involving complex care or
treatment, expert testimony is usually required to establish the
probability that the injuries resulted from someone’s negligence, the
rationale being that lay jurors are not competent to infer negligence
merely from the occurrence of injury in the course of complicated
medical treatment. [Connors v. University Associates, 4 F.3d 123 (2d
Cir. 1993); Hightower-Warren v. Silk, 698 A.2d 52 (Pa. 1997)]
a) But note
Even in medical malpractice cases, expert testimony is not required
where the occurrence is so bizarre that someone’s negligence is
obvious even to a lay juror [Kambat v. St. Francis Hospital, 89
N.Y.2d 489 (1997)—18-inch pad left in patient’s
82
body], or where the medical procedure itself is so routine that

common knowledge may be relied upon to determine whether the
accident could occur in the absence of someone’s negligence
[Bardessono v. Michels, 3 Cal. 3d 780 (1970)—cortisone injection
to treat tendonitis].
3) Analysis—ultimate issue of probabilities [§368]
Whether the accident is of a type that normally does not occur in the
absence of someone’s negligence is ultimately a matter of probabilities;
it must appear that the trier of fact could reasonably conclude that, on
the whole, it is more likely than not that negligence was associated with
the harm.
(b) Negligence attributable to defendant [§369]
This element requires that it appear more likely than not that the inference
of negligence arising from proof of the first factor (above) can be focused
on the defendant.
1) Defendant’s control over source of harm [§370]
Whether a showing of “control” by the defendant is essential for res ipsa
loquitur purposes, and if so, what the nature of that control must be, is a
subject of divergent views:
a) “Exclusive control” standard [§371]
Some courts require that the instrumentality causing the plaintiff’s
injury be shown to have been under the defendant’s “exclusive
control” at the time of the injury.
Example: Pedestrian P is struck by a sign that falls from D’s
store building. D is deemed in “control” of the sign, and res ipsa
loquitur is applied. [Both v. Harband, 164 Cal. App. 2d 743
(1958)]
Example: Passenger P is injured when D’s bus goes out of

control and turns over; D is deemed to be in “control” of the
instrumentality causing injury for purposes of res ipsa loquitur.
[Whitney v. Northwest Greyhound Lines, Inc., 242 P.2d 257
(Mont. 1952)]
Compare: Hotel guest P is injured when water in D’s hotel

shower suddenly turns hot. There is evidence that P adjusted the
faucets before the incident. P has not shown that D is in “control” of
the water. [Malvicini v. Stratfield Motor Hotel, Inc., 538 A.2d
690 (Conn. 1988)]
83
Compare: If D leaves his car parked on a hill, and it starts rolling
and injures P, res ipsa applies—at least if there was only a short
interval between the time D left his car and the time it started rolling.
But after a long time interval has elapsed, other causes—for which
D was not responsible—might appear to be more likely. [Hill v.
Thompson, 484 P.2d 513 (Okla. 1971)—time lapse of four hours
held not enough to prevent inference of D’s negligence]
Compare: Shopper was injured when an escalator on which she

was riding suddenly stopped. There was no evidence on why the
escalator stopped, but there were emergency stop buttons at the top
and bottom landings that could be pushed by anyone in an
emergency. Res ipsa loquitur does not apply because the department
store owner was not in exclusive control of the escalator.
[Holzhauer v. Saks & Co., 697 A.2d 89 (Md. 1997)]
b) “Control” only one factor to consider [§372]
The better view is that showing the defendant’s “control” over the
instrumentality that caused the injury is only one way of proving the
defendant’s responsibility. The essential question is whether the
injury to the plaintiff was one that the defendant owed a duty to
guard against. [Corcoran v. Banner Super Market, Inc., 19
N.Y.2d 425 (1967)]
Example: A tire manufacturer may be liable under res ipsa
loquitur for injuries to a consumer who was mounting a tire for
the first time when it exploded, even though the tire had been
purchased over a year before. D was no longer realistically in
“control” of the tire, but the type of injury was one that D owed a
duty to guard against. [Baker v. B.F. Goodrich Co., 115 Cal. App.
2d 221 (1953)]
Example: The same result and reasoning apply in the “bursting

bottle” cases (i.e., plaintiff injured by explosion of defendant’s
bottled beverage purchased from retailer), as long as it appears that
the bottle was not subjected to unusual treatment by the plaintiff,
retailer, or any other customer. [Zentz v. Coca-Cola Bottling Co.,
39 Cal. 2d 436 (1952)]
c) “Joint control” or “concerted action” theories of control
[§373]
Some courts have extended the “exclusive control” concept to a
group of physicians and nurses when an unconscious
84
patient, with whom each defendant had some contact, suffers harm
of a type that might be found attributable to someone’s negligence.
Rather than nonsuit the plaintiff for failure to identify the specific
person whose negligence caused the harm, the courts—sympathizing
with the plaintiff’s inability to obtain such proof—have treated the
individual defendants potentially as members of a joint enterprise
and imposed responsibility for the harm upon each defendant who
cannot exculpate himself. [Ybarra v. Spangard, 25 Cal. 2d 486
(1944); Kolakowski v. Voris, 415 N.E.2d 397 (Ill. 1980); but see
Hoven v. Rice Memorial Hospital, 396 N.W.2d 569 (Minn. 1986)
—questioning Ybarra]
Example: In Ybarra, P, while under an anesthetic, sustained a
shoulder injury during an appendectomy. Res ipsa loquitur was
held applicable against all doctors and hospital employees connected
with the operation, even though there was no proof when the injury
occurred or which defendants were present at that time. Rationale:
Each defendant was charged with a duty to guard against injury to P.
1/ Limitation—no joint enterprise [§374]
The doctrine will not be invoked where multiple defendants lack
the cohesiveness of a unit. [Fireman’s Fund American
Insurance Cos. v. Knobbe, 562 P.2d 825 (Nev. 1977)—res
ipsa loquitur not invoked against four social friends for fire
negligently started in a hotel room by one of them (who cannot
be identified)]
2/ Limitation—tortfeasor cannot be identified [§375]
Where P is unable to identify the tortfeasor, and it is not certain
that the tortfeasor is among a large number of defendants sued,
courts refuse to make defendants prove their nonculpability.
[Clift v. Nelson, 608 P.2d 647 (Wash. 1980)—when only one in
crowd caused injury, and 10 of 30 members of crowd were
sued, P had to identify the tortfeasor]
(c) Plaintiff or any third party did not contribute to or cause plaintiff’s
injuries [§376]
There is no inference of negligence if it appears that the plaintiff’s own
conduct (or that of some third person for whom the defendant is not
responsible) was as likely a cause of the accident as was the defendant’s
conduct. [A.M. Swarthout, Annotation, Res Ipsa Loquitur Doctrine as
Affected by Injured Person’s Control Over or Connection with
Instrumentality, 169 A.L.R. 953 (1947)]
85
1) Distinguish—contributory negligence [§377]

This requirement must be distinguished from the issue of contributory
negligence (see infra, §791).
Example: Res ipsa loquitur is inapplicable in the crash of a dual-
control airplane where human error was the cause and the student
pilot (whose family was seeking damages) was at one of the controls and
could have been the party at fault. [Udseth v. United States, 530 F.2d
860 (10th Cir. 1976)]
(d) Third Restatement’s single-element approach [§378]
Although most courts adopt a two- or three-element test for res ipsa loquitur,
the Third Restatement adopts a single-element approach. It states: “The
factfinder may infer that the defendant has been negligent when the accident
causing the plaintiff’s physical harm is a type of accident that ordinarily
happens as a result of the negligence of a class of actors of which the
defendant is the relevant member.” [Rest. 3d-PH §17]
1) Rationale
The Restatement explains that it has dropped the requirements of
“exclusive control” and “no plaintiff contribution” because they are
merely imperfect proxies for determining that the injury was likely due to
the negligence of the defendant. For example, one day after the purchase
of a car, the brakes fail, and the car hits a pedestrian. In such case, the
driver of the car was in sole control, and yet the element of “sole
control” does not capture the fact that the driver likely had nothing to do
with the faulty brakes. [Smoot v. Mazda Motors of America, Inc.,
469 F.3d 675 (7th Cir. 2006)]
(2) Other factors affecting use of res ipsa loquitur
(a) Accessibility of evidence [§379]
Most courts hold that if the above three elements are met, the doctrine will
apply even if the defendant cannot add any evidence on the issue of what
happened. [Judson v. Giant Powder Co., 107 Cal. 549 (1895)—explosion
of nitroglycerine factory destroyed all evidence, but res ipsa loquitur was still
applied]
1) Note
Some courts rely on the defendant’s special access to information in
denying motions for nonsuits where the plaintiffs have done the best
they can to identify the cause of the accident—even if the traditional
elements of res ipsa are absent. This is probably the explanation for the
unconscious patient cases (see supra, §373),
86
though, as seen, courts often try to force such cases into the threepart
test of the basic res ipsa doctrine.
(b) Effect of proving specific acts of negligence [§380]
A plaintiff who attempts to prove specific acts of negligence to explain what
happened may still use res ipsa loquitur as long as the threepart test is met.
(The jury may reject the plaintiff’s specific proof but may accept the general
inference of negligence from the happening of the accident.) [Ward v.
Forrester Day Care, Inc., 547 So. 2d 410 (Ala. 1989)—P tried to prove D
negligent in supervision of day care center; P could also use res ipsa because
introduction of evidence on how accident could have happened does not
preclude application of res ipsa loquitur if evidence does not clearly resolve
culpability; Abbott v. Page Airways, Inc., 23 N.Y.2d 502 (1969)—P tried
to prove that helicopter fell from sky because pilot flew too slowly and was
not paying attention; P also allowed to use res ipsa because helicopters do
not usually fall without some negligence]
1) Minority view [§381]
A few states hold that a plaintiff may be denied the benefit of res ipsa if
too much specific evidence of negligence has been presented. [Malloy v.
Commonwealth Highland Theatres, Inc., 375 N.W.2d 631 (S.D.
1985)—P presented too much direct evidence to be allowed to rely also
on res ipsa loquitur]
(3) Effect of establishing res ipsa loquitur
(a) Majority view—inference [§382]
Most courts treat res ipsa loquitur as creating only a permissible inference of
negligence—i.e., a conclusion that the trier of fact may (or may not) choose
to draw from the facts, the strength of the inference depending on, and
varying with, the circumstances of each case. [Gardner v. Coca-Cola
Bottling Co., 127 N.W.2d 557 (Minn. 1964)]
Example: D’s truck veered over onto P’s side of the road and rolled
over onto P’s vehicle during a storm. D produced testimony about a
sudden wind to explain the event. The jury was properly charged that the
burden of persuasion remained on P. [Bauer v. J.B. Hunt Transport, Inc.,
150 F.3d 759 (7th Cir. 1998)]
1) But note
Even in inference states, facts may be so strong that an inference must
be drawn if not rebutted. [Farina v. Pan American World Airlines,
Inc., 116 A.D.2d 618 (1986)—plane ran off runway while landing]
87
(b) Minority view—presumption [§383]

A few courts, however, give res ipsa loquitur the status of a rebuttable
presumption of breach of duty owed; i.e., it shifts the burden of going
forward with the evidence to the defendant (to give a satisfactory
explanation of how the injuries occurred, by a preponderance of evidence),
and if the defendant fails to do so, the plaintiff would be entitled to a
directed verdict on liability. [Weiss v. Axler, 328 P.2d 88 (Colo. 1958)] (See
Evidence Summary for further discussion of inferences and presumptions.)
(c) Minority view—“disappearing” presumption [§384]
In still other states, res ipsa is classified as a presumption, but one that is
dispelled by counterevidence. [Cal. Evid. Code §646] Thus, if the defendant
can simply produce evidence sufficient to sustain a finding of fact in his
favor (see Evidence Summary), the presumption has no further evidentiary
effect; the burden of proof is back on the plaintiff to persuade the trier of
fact that the defendant breached his duty of care under the circumstances.
e. Effect of custom and statutes [§385]

A safety-related statute or custom in a community or industry arguably reflects
collective notions of whether the relevant conduct is safe and feasible. For this
reason, courts typically admit evidence of safety-related statutes and customs as
some, but not conclusive (with one rather large exception, see infra, §394), evidence
of the defendant’s adherence to or departure from the reasonable person standard of
care. [Rest. 2d §295A]
(1) How custom established
(a) Purpose must be to avoid harm [§386]
For a custom to be relevant to the standard of care, its purpose must be to
avoid the type of harm suffered by the plaintiff.
Example: Some churches have a custom not to burn candles. The
origin of the custom is likely tied to a theological departure
88
from Catholic traditions and not to a desire to avoid church fires. Therefore,
the custom will not be admissible as evidence that keeping candles in a
particular church breached the standard of care.
(b) Need not be universal [§387]
Conduct need not be universal in order to constitute a custom, but only need
be “fairly well-defined” or “widespread” within the relevant community or
industry. [Trimarco v. Klein, 56 N.Y.2d 98 (1982)]
(c) Defendant must be member of relevant community [§388]
For a custom to be applicable, the defendant (and sometimes the plaintiff)
must be a member of the industry or community in which the relevant
custom is practiced. If such a member, the defendant may be charged with
knowledge of the custom even if actual knowledge is lacking.
(2) Effect of custom [§389]
Custom in the community is admissible as evidence of the standard of care
owed, but it is never conclusive (indeed, some customs may themselves be
found to be negligent). The fact that the defendant has acted (or failed to act) as
others in the community customarily do may provide a clue as to the
reasonableness or unreasonableness of the conduct. The test remains whether
the reasonable person would have so acted under the same or similar
circumstances. [Texas & Pacific Railway v. Behymer, 189 U.S. 468 (1903);
The T.J. Hooper, 60 F.2d 737 (2d Cir.), cert. denied, 287 U.S. 662 (1932);
Rest. 2d §295A]
(a) Application—expert witnesses [§390]
When the most qualified expert witnesses are all employed by the specific
defendant industry (e.g., airport terminal designers or baggage claim systems
experts), courts will apply a more lenient standard for qualifying expert
witnesses. Otherwise, the defendant industry could, through unchallenged
expert testimony, use custom to define what is reasonable. [Stagl v. Delta
Air Lines, Inc., 117 F.3d 76 (2d Cir. 1997)]
(b) Proof of compliance with custom [§391]
Although not binding on courts, proof of a defendant’s compliance with
custom may indicate to the court that an adverse decision will affect many
people (i.e., an entire industry may have to alter its behavior). It may also
suggest that there is no better way to perform the task in question. [Low v.
Park Price Co., 503 P.2d 291 (Idaho 1972); Williams v. New York Rapid
Transit, 272 N.Y. 366 (1936)]
Example: P, a motel guest, claimed that D, the motel owner, had a duty
to provide emergency lighting in each room in case of a power failure.
Evidence that no motel or hotel provided such
89
emergency lighting was properly admitted, because although industry custom

is not conclusive as to what is reasonably prudent conduct in a given case, it
may be a useful guide, unless it is apparent that under the circumstances of
the case, no reasonable person would conform to industry-wide custom.
[LaVallee v. Vermont Motor Inns, Inc., 569 A.2d 1073 (Vt. 1989)]
(c) Proof of deviation from custom [§392]
Showing of the defendant’s deviation from customary conduct in the
community may aid the plaintiff because it shows the court that a
determination of negligence in the case will not upset the practices of an
entire industry or group of people. Moreover, the fact that others perform
the task in a safer manner suggests that an alternative not only was feasible,
but that the defendant knew or should have known of the custom. [Levine
v. Russell Blaine Co., 273 N.Y. 386 (1937); Clarence Morris, Custom and
Negligence, 42 Colum. L. Rev. 1147 (1942)]
(3) Effect of compliance with statute [§393]
Where the defendant’s duty exists pursuant to the common law duty of
reasonable care, the fact that the defendant complied with applicable statutes
governing the conduct is admissible on the question of whether the defendant’s
conduct was negligent, but again, it is not conclusive. The standard of “due
care” is still the reasonable person test, and the statute may or may not have
demanded such a level of conduct. [Clinkscales v. Carver, 22 Cal. 2d 72
(1943)] Compliance with a statute setting only a minimal level of conduct may
not be enough to establish reasonable care under the circumstances.
Example: A landlord who complied with a statute requiring that apartment
windows be guarded “by a barrier at least eight inches high” might still be
found negligent because a jury could find that it was reasonable to have the
barrier 12 or more inches high under the circumstances.
(a) Exception [§394]
If the court concludes that the statute’s standard is reasonable (rather than
minimal) and the facts closely resemble those contemplated in the statute,
the court may declare that compliance satisfies the duty of care. [Rest. 2d
§288C; Josephson v. Meyers, 429 A.2d 877 (Conn. 1980); Espinoza v.
Elgin, Joliet & Eastern Railway, 649 N.E.2d 1323 (Ill. 1995)—
administrative approval of precise configuration of grade crossing is
conclusive in tort action]
(b) Distinguish—conduct in violation of statute [§395]
If the defendant’s conduct violated some applicable safety statute (the
90
conduct fell below the statutory standard), the plaintiff may be able to
establish negligence simply by proving the violation. (See infra, §§546-550.)
f. Criminal statutes and breach—“negligence per se” [§396]

Where a common law duty of care is already owed, and a statute provides that
specific conduct breaching that duty is subject to criminal penalties, under
appropriate circumstances, courts may use violation of the criminal statute to
establish breach of duty in a civil negligence action. In such situations, breach of the
statute constitutes negligence per se. [Osborne v. McMasters, 41 N.W. 543 (Minn.
1889)]
(1) Not applicable to children [§397]
Under the majority rule, the doctrine of “negligence per se” is not invoked
against children engaged in children’s activities. [Bauman v. Crawford, 704
P.2d 1181 (Wash. 1985)] The children’s standard is discussed supra, §291.
(2) Requirements for “negligence per se” [§398]
For a criminal statute to establish a breach for civil negligence purposes the
following must appear:
(a) Statutory duty clear [§399]
The statute itself must be clear and unambiguous. It must specify exactly
what conduct or duty is required, of whom it is required, and what
constitutes a breach of that duty.
(b) Violation within statutory purpose [§400]
It must also appear that in enacting the statute, the legislature was seeking to
accomplish two separate objectives: (i) to prevent the particular
91
type of injury involved in the current tort action, and (ii) to protect the
particular class of plaintiff involved in the current tort action.
1) To prevent type of injury [§401]
The legislative purpose must have been to prevent the type of injury
actually suffered by the plaintiff. [Matomco Oil Co. v. Arctic
Mechanical, Inc., 796 P.2d 1336 (Alaska 1990); Darmento v. Pacific
Molasses Co., 81 N.Y.2d 985 (1993)]
Example: A statute makes it unlawful for auto owners to leave their
vehicles parked with the keys in the ignition. Auto owner D violates
this statute and thief X steals D’s car, drives it negligently, and injures P.
Does the statute create a duty of due care on D? Probably not. It is
doubtful that the legislature intended to prevent this type of injury. More
likely, the legislative intent was to make auto theft more difficult or to
protect innocent purchasers of stolen cars. [Anderson v. Theisen, 43
N.W.2d 272 (Minn. 1950); Pendrey v. Barnes, 479 N.E.2d 283 (Ohio
1985); but see, e.g., Ney v. Yellow Cab Co., 117 N.E.2d 74 (Ill. 1954)
—contra]
Example: D gas station sells gas to arsonists in violation of a statute

forbidding the sale of gas in plastic containers. Arsonists use the gas
to accelerate a fire that kills and injures P. Courts will not use this statute
to create a duty of due care because it was designed to make the
transport and storage of gas safer, not to make it harder to buy untanked
gas. [Morales v. City of New York, 70 N.Y.2d 981 (1988); and see Di
Ponzio v. Riordan, 89 N.Y.2d 578 (1997)—P hurt when D customer
illegally failed to turn off engine at gas station and car rolled into P; P
could not use violation of statute in the case because statute’s purpose
was to prevent fires]
2) To protect class of persons [§402]
The legislature must also have intended to protect a class of persons of
which plaintiff is a member. [Kelly v. Henry Muhs Co., 59 A. 23 (N.J.
1904)]
Example: D makes an illegal left-hand turn in violation of the
Vehicle Code, collides with an oncoming car, and crashes into P’s
building on the side of the road. Courts will probably not use this statute
to create a duty of due care because P was not among the class of
persons sought to be protected by the statute; i.e., its apparent objective
is to protect other motorists on the highway, not owners of property
along the roadside. [Erickson v. Kongsli, 240 P.2d 1209 (Wash. 1952)]
92
3) Licensing statutes [§403]

Courts often conclude that a violation of licensing statutes does not
establish negligence per se. [Brown v. Shyne, 242 N.Y. 176 (1926)—
chiropractor who performed service that only physicians were permitted
to perform by law held not per se negligent] This is because failure to
comply with a licensing statute is not necessarily relevant to one’s safety
or competence in performing the licensed activity—e.g., one might have
failed to pay one’s licensing dues or simply forgotten to fill out a timely
renewal of license form.
(c) No excuse [§404]
Often a violation of statute is reasonable. Although the reasonableness of a
defendant’s conduct will not alone excuse the violation of a safety statute, a
statute can be invoked to establish negligence per se only if the defendant
has no legally acceptable excuse for its violation.
1) Legally acceptable excuses [§405]
Courts and the Third Restatement [Rest. 3d-PH §15] have recognized
several categories of legally acceptable excuses:
a) Where the violation is reasonable in light of the defendant’s tender
years, physical disability, or physical incapacitation;
b) Where the defendant neither knows nor should know of the
factual circumstances that render the statute applicable;
c) Where the defendant’s violation is due to the confusing way in
which the statute’s requirements are explained to the public;
d) Where it was safer, under the circumstances, to disobey the
statute than to follow it; and
e) Where the defendant exercised reasonable care to comply with the
statute.
2) Application [§406]
If the defendant had no good reason for the infraction, this presents the
clearest case for a finding of negligence per se. [Robinson v. District of
Columbia, 580 A.2d 1255 (D.C. 1990)—proof of custom of crossing
street outside crosswalk cannot excuse violation of traffic regulation] On
the other hand, although a person failed to comply with a statute’s
mandate where it was safer,
93
under the circumstances, not to comply, it may be that such conduct was
reasonable. In such cases, she has not been negligent and should not be
held liable for violating the statute. [Tedla v. Ellman, 280 N.Y. 124
(1939)—walking on highway with back to traffic may be illegal but is
not negligent if traffic is much heavier in facing direction]
Example: It has been held not to be negligence where D disobeys
the letter of a statute because of physical circumstances beyond his
control, as where his lights unexpectedly fail on the highway at night or
where he is forced to drive on the left because the right is blocked.
[Brotherton v. Day & Night Fuel Co., 73 P.2d 788 (Wash. 1937)]
a) Rationale
Violations of statute permit the court to use a specific breach to
replace the more general duty of care already discussed. However,
this can be justified only if the basic assumption that it is reasonable
to obey the criminal law holds; i.e., when a reasonable person would
violate the law, the theory fails.
3) Excuses must be heard [§407]
Unless the legislature intended to foreclose consideration of excused
violations (which is rarely the case), the court is bound to hear excuses
offered by the defendant; to do otherwise would be tantamount to
imposing strict liability (i.e., liability regardless of fault).
(3) Effect of violation of statute
(a) Unexcused violations [§408]
If the defendant makes no effort to justify or excuse his prima facie violation
of a criminal statute that was enacted to protect a class of persons of which
the plaintiff is a member from the type of injury the plaintiff actually
suffered, liability will be analyzed under one of three views:
1) Majority view—“negligence per se” [§409]
Under the widely followed majority view, such a showing will lead the
trial judge to conclude that the defendant was negligent as a matter of
law; there will be no question for the jury on the question of breach.
[Martin v. Herzog, 228 N.Y. 164 (1920)—driving wagon without lights
after dark is negligence per se; Rest. 2d §288B]
94
2) Minority view—rebuttable presumption [§410]

One minority view holds that the violation creates only a rebuttable
presumption of negligence and does not establish negligence per se. But
this view significantly differs from that of the majority only when the
defendant offers an excuse for his behavior. Absent such a showing, the
presumption of negligence cannot be rebutted, and negligence will be
found as a matter of law, just as under the majority view. [Satterlee v.
Orange Glenn School District, 29 Cal. 2d 581 (1947)]
3) Minority view—evidence only [§411]
A second minority view holds that violation of a statute or ordinance is
never more than evidence of breach of duty and is not binding on the
trier of fact. Thus, subject to the usual limits on the jury’s role, a jury
might find even an unexcused violation to be nonnegligent behavior.
[French v. Willman, 599 A.2d 1151 (Me. 1991)—car crossing center
line on road is “evidence of negligence”]
(b) Where excuse offered for violation
1) Majority view [§412]
Where the defendant attempts to justify his behavior, in the majority of
jurisdictions the trial judge will decide the validity of the offered excuse.
If the excuse is found valid (and supported by the facts), the judge will
rule for the defendant. (If crucial facts are disputed, the jury will
determine these.)
a) But note
If the excuse is unacceptable, even if supported by the facts, the
excuse will not justify the violation.
2) Minority view—rebuttable presumption [§413]
Under the “rebuttable presumption” approach, the apparent violator has
the burden of persuading the trier of fact that the behavior was
reasonable even though it may have violated a statute. If the defendant
does not meet this burden, the plaintiff will prevail.
3) Minority view—evidence only [§414]
Under the “evidence only” approach, the jury is instructed that the
burden is on the plaintiff to establish negligence as in the usual common
law case. The asserted statutory violation is treated as one of the
circumstances of the case and will have whatever effect the jury decides
to give it (operating within the usual limits on jury power).
95
5. Actual Cause (“Cause in Fact”) [§415]

The defendant’s negligent act must be a cause of the plaintiff’s injuries in order to
impose liability. Some courts include, within the element of “causation,” both the “actual
cause” (or “cause in fact” or “factual cause”) and “proximate cause” (or “scope of
liability”) inquiries, thus describing the negligence action as having only four elements:
duty, breach, causation, and damages. In other courts, the term “proximate cause” is
confusingly used to mean the combined causation element (“legal cause” is another term
used to mean both elements, although sometimes it is used only to mean proximate
cause). Many other courts, the Third Restatement, and this Summary describe actual
cause and proximate cause as distinct concepts. Actual cause is the factual inquiry into
whether the defendant’s negligent conduct was a cause of the plaintiff’s injuries.
Proximate cause (discussed infra, §§442 et seq.) requires a judgment by the jury about
whether, even if all the other elements of a negligence claim are satisfied, the type,
manner, or extent of the plaintiff’s injury calls for the imposition of liability.
a. “But for” rule [§416]
The defendant’s negligent act must have been the cause in fact of the plaintiff’s
injuries. If the plaintiff would not have been injured but for the defendant’s negligent
act, that act is a cause in fact of the injury. [Chaney v. Smithkline Beckman Corp.,
764 F.2d 527 (8th Cir. 1985)—Arkansas would not permit recovery when expert said
“20 to 80% chance” that D caused P’s injury]
(1) Defendant’s act must be negligent [§417]
It is not enough that the plaintiff’s injury would not have occurred but for the
defendant’s conduct. The plaintiff must prove that the injury would not have
occurred but for the defendant’s negligence.
Example: P can prove that her injury would not have occurred but for
having taken a particular drug of which D negligently prescribed
96
too large a dose. P has not yet proven cause in fact—it may be, for instance, that
prescribing the drug at any dosage would have caused the injury (but that D had
no reason to know of this risk). P must prove that it was D’s excess dose, which
occurred due to D’s negligence, that was the factual cause of the injury.
[Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998)]
b. Concurrent liability rule [§418]

Where the separate negligent acts of the defendant and a third party concur to cause
a single injury, and it appears that the plaintiff would not have been injured but for
the concurrence, then both the defendant and the third party are actual causes. [Hill
v. Edmonds, 26 A.D.2d 554 (1966)]
Example: Where a collision of two vehicles injures a pedestrian, and the
collision was caused by the negligence of both drivers (i.e., “but for” the
negligence of both, the accident would not have occurred), the pedestrian can
recover from either or both for any indivisible injuries suffered. But note: Many
states have recently abolished the traditional common law rule of joint and several
liability or limited its applicability (see infra, §1331).
(1) Distinguish—jointly engaged tortfeasors [§419]
Similar rules apply where the injury is inflicted by one of several defendants
jointly engaged in a course of negligent conduct. In such a case, each defendant
is liable even though only one of them (who can be identified) actually inflicted
the injury (see infra, §1252). [Rest. 2d §876]
Example: All participants in an illegal “drag race” on a public highway are
liable to bystanders who are consequently injured, even though the accident
involved only one of the racing cars. [Bierczynski v. Rogers, 239 A.2d 218
(Del. 1968)]
(2) Successive tortfeasors [§420]
When successive acts of unrelated independent tortfeasors produce harm that is
difficult to apportion, the tortfeasors must try to disprove their responsibility for
the injury.
97
Example: A woman suffering from arthritis is injured in an auto accident.

The injuries are worsened by another accident several weeks later. Although
each negligent defendant is responsible only for the portion of the injury that
each caused, the burden of allocating that causation is placed on the defendants.
[Phennah v. Whalen, 621 P.2d 1304 (Wash. 1980)]
c. Multiple sufficient causes—“substantial factor” rule [§421]

If the plaintiff sustains injury as the result of the negligent conduct of two tortfeasors,
and it appears that the conduct of either one alone would have been sufficient to
cause the injury, both are nevertheless liable if each of their acts was a “substantial
factor” in causing the injury. [Anderson v. Minneapolis, St. Paul & Sault Ste.
Marie Railway, 179 N.W. 45 (Minn. 1920)]
Example: Where two negligent motorcyclists simultaneously pass P’s horse,
thereby frightening it and causing it to run away, and either motorcyclist alone
would have caused the fright, the conduct of each of them is a “substantial factor.”
[Corey v. Havener, 65 N.E. 69 (Mass. 1902)]
(1) Analysis—distinguish “but for” and concurrent liability rules [§422]
In this type of case, it is really not the concurrence that causes the damage,
because either force by itself would have resulted in the same injuries.
Moreover, if the “but for” rule (above) were strictly applied, both the defendant
and the third party would escape liability, because in testing the defendant’s
liability one would find that the injuries would have occurred despite the
defendant’s acts; and the same would apply to the third party’s liability. That is
why courts have worked out the “substantial factor” rule to cover this type of
case. [Rest. 2d §§431-433A]
d. Problem of alternative liability [§423]

If a plaintiff has been injured through the negligence of one of several possible
defendants, and it is not clear which one caused the injury—but it is clear that only
one of them did—how can causation be established?
Example: D1 and D2 are both negligent in firing their rifles near P. P is struck
by a bullet from one of the rifles, but it is impossible to tell from which rifle the
bullet came.
98
(1) “But for” rule would exclude liability [§424]

Application of the “but for” rule will not work; because it cannot be shown
which defendant’s fault caused the harm, it is impossible to ascertain whether the
injury would have occurred “but for” that defendant’s acts.
(2) Better view shifts burden to each defendant [§425]
Only a few courts have recently dealt with this problem. These decisions hold
that where P cannot show whether D1’s or D2’s negligence was the actual cause
of P’s injuries, the burden of going forward with the evidence shifts to each
defendant to show that his negligence was not the actual cause. [Summers v.
Tice, 33 Cal. 2d 80 (1948); Rest. 2d §433B(3)]
(3) Shifting burden where only one defendant negligent [§426]
The above view may be an eminently desirable result when there is some
evidence that both defendants were acting negligently, even if not acting jointly.
However, where there is no evidence as to where culpability lies, and it appears
from the facts that only one of the two defendants could have been negligent—
although the plaintiff does not know which one—application of the “shifting
burden” rule may impose a hardship on the innocent defendant because he must
assume the burden of proving his innocence, which he may be unable to do
unless he can effectively prove the culpability of the other defendant. [Garcia v.
Joseph Vince Co., 84 Cal. App. 3d 868 (1978)—P who cannot show which
saber caused fencing accident cannot shift burden]
(4) Market share liability [§427]
Suits against manufacturers of the pregnancy drug diethylstilbestrol (“DES”)
have led to a theory of causation called market share liability. This theory is
useful in situations where even if all the defendants are assumed negligent, it is
uncertain which one of them actually caused the plaintiff’s injury due to the
passage of time and the fact that the defendants’ drugs were generally
indistinguishable. Courts have agreed that burden shifting (supra, §425) does not
apply because there are too many tortfeasors or because not all the tortfeasors
are before the court. Several views have emerged that vary both as to scope of
the doctrine and whether it involves joint or several liability.
(a) New York view [§428]
Under the New York view, all defendants are liable based on their
culpability. Culpability is measured by the risk each defendant imposed on
the public at large; i.e., the risk each defendant caused is measured by its
national market share of the product. Defendants cannot exculpate
themselves from liability, even if they can show that they could not have
caused the plaintiff’s injury, unless they demonstrate that they did not
produce the product for the use that injured the plaintiff (in this case, as a
pregnancy drug). Liability is several (i.e., each
99
defendant is liable only for the injuries attributable to that defendant).

[Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, cert. denied, 493 U.S. 944
(1989)]
(b) Washington view [§429]
Under the Washington view, after the plaintiff makes out a prima facie case
against at least one defendant, all others joined may then exculpate
themselves by showing that they could not have caused the injuries. The
remaining defendants may then rebut the presumption of equal market
shares by showing their true market shares. Plaintiffs may recover less than
full damages if every defendant can prove its true market share and some
absent possible causes exist. Liability is several. [George v. Parke-Davis,
733 P.2d 507 (Wash. 1987); Martin v. Abbott Laboratories, 689 P.2d 368
(Wash. 1984)]
(c) California view [§430]
Under the California view, if the defendants in the action represent a
substantial share of the market for the product, they will be liable for a
percentage of the plaintiff’s injuries equal to their market share. Defendants
can exculpate themselves if they can show that they could not have caused
the plaintiff’s injuries. Liability is several. [Brown v. Superior Court, 44
Cal. 3d 1049 (1988); Sindell v. Abbott Laboratories, 26 Cal. 3d 588, cert.
denied, 449 U.S. 912 (1980)]
(d) Rejection of market share liability [§431]
Some jurisdictions have rejected market share liability in any form and rely
on traditional notions of causation. [Smith v. Eli Lilly & Co., 560 N.E.2d
324 (Ill. 1990)]
(e) Extension beyond DES cases [§432]
Most states willing to use market share analysis for DES cases have been
reluctant to extend the doctrine to other products—sometimes because of
fact differences. [Santiago v. Sherwin Williams Co., 3 F.3d 546 (1st Cir.
1993)—proof inadequate to permit theory to apply against defendants who
marketed lead paint over a 30-year period; Goldman v. Johns-Manville
Sales Corp., 514 N.E.2d 691 (Ohio 1987)—because asbestos products can
be distinguished from one another in terms of harmfulness, market share
theory was rejected; but see Wheeler v. Raybestos-Manhattan, 8 Cal.
App. 4th 1152 (1992)—market share theory applied to manufacturers of
brake pads because they used asbestos fibers that were very similar in
harmfulness; Smith v. Cutter Biological, Inc., 823 P.2d 717 (Haw. 1991)
—applying theory to blood-coagulating factor used by hemophiliacs]
100
e. Risk of future harm [§433]

If the onset of an injury brings with it the likelihood of future harm, courts have split
over whether to award damages for that chance of future harm. Most courts have
allowed recovery if the plaintiff can show that it is more likely than not to occur.
[Mauro v. Raymark Industries, Inc., 561 A.2d 257 (N.J. 1989)]
(1) Minority view—no recovery at this time [§434]
Some states hold that although the plaintiff is now more likely than not to suffer
a future harm as the result of the defendant’s negligence that has already caused
the present injury, the plaintiff must wait until the second condition comes into
existence in order to recover for it. [Simmons v. Pacor, Inc., 674 A.2d 232 (Pa.
1996)—the “two-suit” rule]
(2) Minority view—some recovery possible [§435]
A few states permit the plaintiff to recover a partial amount now even if the risk
is less than even that the future harm will occur. [Petriello v. Kalman, 576 A.2d
474 (Conn. 1990)—where defendant’s negligence caused harm and exposed
plaintiff to 8-16% risk of future harm, plaintiff could recover that 8-16% now]
f. Loss of chance [§436]

Traditionally, a plaintiff could not recover for a loss unless she could prove that she
had lost something that she was more likely than not to have acquired or retained
but for the defendant’s conduct.
(1) Medical exception [§437]
In medical cases, courts have recently begun to allow suits for loss of recovery
chances that are less than 50%. [Wendland v. Sparks, 574 N.W.2d 327
101
(Iowa 1998)—allowing recovery for loss of chance where plaintiff able to show
only loss of a less-than-even chance; Alberts v. Schultz, 975 P.2d 1279 (N.M.
1999); but see Fennell v. Southern Maryland Hospital Center, Inc., 580 A.2d
206 (Md. 1990)—refusing to recognize action for loss of a 40% chance of
survival; Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397 (Tex.
1993)]
(a) Damages [§438]
Courts are split on the issue of damages in loss of recovery cases. Where the
lost chance was greater than 50%, some courts have awarded damages for
the entire lost chance (i.e., as if the patient had lost a 100% chance of
recovery). In states that recognize the medical exception, the recovery for a
lost chance less than 50% is the value of that percentage to the total
damages. In some of these states, even plaintiffs who prove that they lost a
chance greater than 50% may recover only that percentage of their loss,
rather than 100%. [See DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa
1986)]
(2) Distinguish—emotional distress [§439]
When physical injury is present, courts allow recovery for fear of further harm,
such as cancer. [Mauro v. Raymark Industries, Inc., supra] But where there
is no present physical injury, recovery for fear about future developments is
much less likely. [Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965
(1993)—prolonged exposure to toxic landfill does not permit recovery for
emotional distress without a showing that it is “more likely than not that the
plaintiff will develop the cancer in the future due to the toxic exposure”]
g. Problem where defendant’s negligence has deprived plaintiff of proof [§440]

A similar approach may be taken in cases where the plaintiff finds herself unable to
prove “but for” causation because the defendant’s negligence has deprived the
plaintiff of evidence of the actual cause. In such cases, the burden may be shifted to
the defendant to prove that his negligence was not the cause in fact of the plaintiff’s
injuries.
Example: D, the owner of a hotel, negligently fails to provide a lifeguard at the
swimming pool, as required by statute. P’s husband drowns while using the pool,
but P is unable to show how the drowning occurred because no lifeguard (or other
witness) was present; i.e., the absence of the required lifeguard not only was
negligence as to P’s husband, but deprived P of the means of establishing the cause
of death. Under such circumstances, the burden of proof may be shifted to D to
show that its failure to provide lifeguard service was not the cause of death. [See
Haft v. Lone Palm Hotel, 3 Cal. 3d 756 (1970)]
102
(1) Rationale
This is an extension of Summers v. Tice, supra, §425; i.e., unless the burden is
shifted to the defendant, the defendant’s negligence would go unredressed
because the plaintiff would otherwise have no way to prove causation.
(2) Extension [§441]
In a few cases, this rationale has been extended to include instances in which
negligence by its nature does not become apparent until many years later. [See
Sindell v. Abbott Laboratories, supra, §430]
6. Proximate Cause (“Scope of Liability”) [§442]

Although every negligent act produces consequences that (at least hypothetically) extend
into infinity, an actor cannot be held liable for all of those infinitely extending
consequences. (Imagine holding Eve liable for all of the harm that has befallen
humankind since people were ejected from the Garden of Eden over the forbidden fruit.)
Proximate cause is the element of a negligence claim by which juries (or courts, as a
matter of law) decide whether the actual consequences of a defendant’s conduct were so
bizarre or far-removed from the risks that made the actor’s conduct negligent that the
defendant, although blameworthy, should not be held liable for the resulting harm.
a. Policy judgment [§443]

“Causation” is actually a misleading term here because all issues of cause and result
have already been considered under “actual cause,” above. Rather, proximate cause
is a policy determination: Under some circumstances, it is deemed unfair to hold the
defendant legally responsible for all consequences of his wrongful conduct, hence the
question, “How far does the defendant’s liability extend for consequences caused
by his negligent acts?” (This accounts for the term used by the Third Restatement,
“scope of liability.”)
b. Basic tests [§444]

Because proximate cause represents a difficult policy judgment, courts have not
settled on a single approach to analyzing the question. Instead, several general tests
continue to be used, depending on the jurisdiction.
(1) Foreseeability test [§445]
Proximate cause is established if the injury to the plaintiff and the type, extent,
and manner of the plaintiff’s injury were the foreseeable result of the
defendant’s negligent conduct under the circumstances. If the plaintiff or the
type, extent, or manner of injury was not foreseeable, then a jury or court would
deny liability. Under this approach, troublesome proximate cause questions fall
into three basic patterns (and will be analyzed in this order):
103
(i) Unforeseeable manner—A foreseeable result occurs but it has come

about in an unforeseeable manner.
(ii) Unforeseeable result—The foreseeable plaintiff has been injured, but an
unexpected extent or type of harm has occurred.
(iii) Unforeseeable plaintiff—Although the defendant’s act exposed a certain
group of potential victims to a foreseeable risk, the person hurt was not a
member of that group.
(a) Note
The foreseeability test for proximate cause is different from foreseeability
considered in the context of breach in the following respects. Breach
foreseeability is a question of general focus—that some range of injuries, of
some range of severity of injury might occur—and one that helps to define
the blameworthiness of a defendant’s conduct. The foreseeability test for
proximate cause is not general but specific to the particular injury suffered
by the particular plaintiff at hand (i.e., it asks whether the plaintiff’s
particular type of injury was foreseeable).
(2) Directness/remoteness test [§446]
Proximate cause is established for all harm that flows from the defendant’s
negligent conduct, regardless of how unforeseeable, as long as the harm was a
direct result of that conduct and was not too remote. [In re Polemis, 3 K.B.
560 (1921)] This approach is generally less restrictive than foreseeability (i.e., it
allows more claims to survive proximate cause), but it also provides less
guidance to juries. It seems clear that injuries indirectly caused by the
defendant’s conduct will not survive under this test (see infra, §§454-460).
Injuries that occur in some remote place or time, or perhaps pursuant to some
remote twist of events also seem likely to fail (see infra, §469).
(3) Risk rule [§447]
Proximate cause is established if the plaintiff’s harm is within the scope of the
risks that made the defendant’s conduct negligent. Conversely, proximate cause
does not exist if the plaintiff’s harm is different from the harms whose risks
made the defendant’s conduct negligent. [Rest. 3d-PH §29; Doe v. Manheimer,
563 A.2d 699 (Conn. 1989)] This approach instructs the jury to think of the
risks it considered when determining whether the defendant acted unreasonably
—if the risk of what actually happened to the plaintiff was part of what made the
defendant’s conduct unreasonable, the defendant is liable for the plaintiff’s
injury. The essence of this test is arguably the same as a general foreseeability of
harm test.
(4) Substantial factor test [§448]
Many courts purport to use what they refer to as a “substantial factor” test
104
to decide proximate cause. This terminology is unfortunate for two reasons: (i)
substantial factor” is the name of a test used to determine actual cause, not
proximate cause (see supra, §421); and (ii) in most cases in which courts use a
test they call “substantial factor” to decide proximate cause, the substance of the
test is typically either foreseeability, directness/remoteness, or the risk rule. [See,
e.g., Doe v. Manheimer, supra—court spoke of “substantial factor,” but
actually applied the risk rule] If there exists a “substantial factor” test for
proximate cause, it likely inquires as to whether the defendant’s conduct was a
more (or perhaps the most) substantial factor in causing the plaintiff’s harm
than other factors. Or perhaps the “substantial factor” test for proximate cause
makes most sense when a jury is instructed in terms provided in the Second
Restatement: “[T]he defendant’s conduct has such an effect in producing the
harm as to lead reasonable men to regard it as a cause, using that word in the
popular sense ….” [Rest. 2d §431 cmt. a]
(5) Andrews factors [§449]
In his dissent in Palsgraf, Justice Andrews stated that proximate cause is a
matter of “practical politics,” “convenience,” “common sense,” “public policy,”
and “a rough sense of justice” and is established on consideration of a number
of factors, including: (i) foreseeability of the harm, (ii) directness of the
connection between the defendant’s act and the plaintiff’s harm, (iii) whether
there was a natural and continuous sequence between the two, (iv) whether the
act was a substantial factor in causing the harm, and (v) whether the harm was
too remote in time and space. (See infra, §§502-503.)
c. Common issues in determining proximate cause [§450]

Of the five tests, the foreseeability approach is the most commonly used today,
although the risk rule is gaining ground. The following sections examine the various
factual and conceptual problems that courts face when deciding proximate cause.
The sections primarily apply the foreseeability test, although other approaches are
discussed where particularly relevant.
(1) Cross-refer—duty [§451]
Remember that the proximate cause discussion assumes that the duty question
has already been resolved in the plaintiff’s favor. Thus, under the Cardozo view
of duty (see supra, §324), an unforeseeable plaintiff loses at the duty stage.
Because the defendant owed no duty to the plaintiff, there is no need to reach
the issue of proximate cause at all.
(a) But note
If a duty is found owing to the plaintiff under the Cardozo view, and breach
is established, two issues remain: was the manner of occurrence foreseeable,
and was the result foreseeable? Under the Andrews approach (supra),
foreseeability of manner, result, and plaintiff are among
105
the factors considered in deciding whether the negligent defendant

proximately caused the plaintiff’s injury.
(2) Terminology [§452]
If the manner, result, or plaintiff was unforeseeable, this may be either because
the defendant had no reason to know the nature of the situation on which his
negligence would operate or because an unexpected new force has come into
play.
(a) Direct causation—no intervening forces [§453]
“Direct causation” means that there was no intervening force or agency
operating between the defendant’s negligent act and the occurrence of the
harm to the plaintiff. In other words, the defendant acts upon a “set
stage”—i.e., all of the contributing factors are already in place on the stage
as the defendant acts. (Visualize knocking over a row of dominoes.)
(b) Indirect causation—intervening factors present [§454]
“Indirect causation” means that some force or agency intervened between
the defendant’s negligent act and the occurrence of the plaintiff’s harm, and
either extended the results of the defendant’s negligence or combined with
the defendant’s act to produce the injury. Some intervening forces are
foreseeable and some are unforeseeable. Note, however, that although
sometimes the nature of the intervening force may be crucial, the existence
of intervening forces does not necessarily terminate the defendant’s liability.
The determinative factor in each case is usually whether, at the time the
defendant acted, it was reasonably foreseeable that the result that occurred
would in fact occur.
1) What is an “intervening act”? [§455]
An intervening act can consist of an “act of God” (e.g., storm, flood,
etc.), an act of a third person, or an act of an animal.
a) Distinguish—contributory negligence [§456]
Acts of the plaintiff should not be analyzed as intervening forces.
The plaintiff’s conduct may establish contributory negligence or
assumption of the risk, but these are affirmative defenses to a
negligence action (see infra, §§791 et seq.) and do not affect the
prima facie case of negligence.
2) Factors that are not “intervening acts”
a) Preexisting conditions [§457]
Contributing factors that are already in operation when the
106
defendant acts (i.e., the “set stage,” above) are not intervening acts.
For example, the plaintiff’s physical condition, which may combine
with the defendant’s negligence to cause an unexpected injury, is not
an intervening act—“defendant takes his victim as he finds him.”
b) Forces set in motion [§458]
Similarly, a force set in motion by the defendant’s conduct is not
deemed an intervening act.
Example: Where D (driving negligently) runs into a garbage
truck, causing debris to fly through the air and injure P, the
debris is a force set in motion by D.
c) Omissions to act [§459]
Although a third person’s failure to act may have contributed to the
plaintiff’s injury, such omission is not deemed to be an intervening
act—even though the third person may have been under a legal duty
to act; however, in extreme cases, this may nonetheless affect the
defendant’s liability (see infra, §§494-495).
(c) Caution—ultimate issue is foreseeability [§460]
Although some courts still give important weight to the difference between
direct and indirect causation when deciding proximate cause issues, this is
generally an outmoded view. The causal sequence may help sort out the
various fact patterns that present themselves, but the ultimate issue is
foreseeability.
Example: P was injured when he fell on broken glass that D city
negligently allowed to remain on a playground. Even though P’s fall was
caused by some boys pushing P, D’s negligence was a proximate cause of
the harm because falling in a playground—from whatever cause—was
foreseeable. [Parness v. City of Tempe, 600 P.2d 764 (Ariz. 1979)]
d. Direct causation [§461]

If there are no intervening acts operating on the particular fact situation, the case is
one of direct causation. Whether the defendant should be deemed the proximate
cause of the plaintiff’s injury turns on the “foreseeability” of the results.
(1) What is the “result”? [§462]
The definition of “result” is one developed on a case-by-case basis through
judicial use of common sense. For example, where the defendant carelessly
drives her automobile through a crosswalk, she should reasonably expect to
107
run down a pedestrian and break his leg. If the broken bones are wrapped
around each other in a bizarre “figure eight pattern,” the defendant may try to
avoid liability by asserting that the extent to which the bones were broken was
not foreseeable. However, it is clear that the “result” is the broken leg (due to
impact from the car)—not the figure eight pattern. Results would seldom be
foreseeable if so narrowly defined.
(2) Foreseeable results lead to liability [§463]
If the defendant causes a foreseeable injury, this presents such a clear case of
liability that proximate cause is rarely in issue. Thus, in the example above, had
the defendant negligently failed to keep her eyes on the road, thereby running
over a pedestrian and breaking his leg, this would be a clear case of a foreseeable
result occurring to a foreseeable plaintiff in a foreseeable manner—and the
defendant would be liable for the damages resulting from the broken leg.
(a) Exceptions—no liability for certain foreseeable results
1) Unusual manner [§464]
Some courts, and the Second Restatement, refuse to impose liability on
the negligent defendant where the result—although foreseeable—has
come about in a “highly extraordinary” manner. [Rest. 2d §435(2)]
Example: D takes her eyes off the road while driving her small car.
She returns her eyes to the road just in time to see P carefully
crossing the street in a marked crosswalk. D has no time to stop, so she
swerves to the right. The car hits a parked truck and ricochets to the
other side of the street, where it bounces off another truck and back into
the street, knocking P down and breaking his leg. Because of the bizarre
sequence of events, courts following the Restatement might protect D
from liability to P because of the bizarre chain of events.
a) Distinguish—risk rule [§465]
Other courts think it fair that the defendant be held liable as long as
the result was foreseeable—no matter how odd the sequence. The
“risk rule” of the Third Restatement takes this approach, stating that
proximate cause exists when the harm was within the scope of risks
created by the defendant’s conduct, regardless of the manner in
which that harm came about (see supra, §447).
2) “New York fire rule” [§466]
Suppose the defendant carelessly fails to control a flame or sparks
108
in a populated area. Although it is foreseeable that such negligence can

cause a fire that may spread to adjoining buildings, the New York courts
have held that expansion of the fire beyond burning of the first building
is not “foreseeable.” [Rose v. Pennsylvania Railroad, 236 N.Y. 568
(1923)—limiting liability to owner of first structure burned; Ryan v. New
York Central Railroad, 35 N.Y. 210 (1866)]
a) Rationale
Because potential liability for this type of carelessness could extend
almost indefinitely, public policy requires an arbitrary cut-off point.
b) But note
Most other states treat fire cases under a general foreseeability
approach on a case-by-case basis. [Osborn v. City of Whittier, 103
Cal. App. 2d 609 (1951)]
(3) Unforeseeable results [§467]
In some cases, the defendant’s negligence, although occurring on a “set stage,”
causes unexpected results. Here, two types of cases must be distinguished:
unforeseeable type of injury cases and unforeseeable extent of injury cases.
(a) Unforeseeable type of injury [§468]
Where one type of injury to the plaintiff was foreseeable, but an entirely
different injury occurred without any intervening force, there is no clear
consensus; courts split over whether the defendant should be held liable.
1) “Polemis” view—liability for unforeseeable consequences [§469]
Some courts hold the defendant liable for all direct consequences of his
wrongful conduct—despite the occurrence of an unforeseeable type of
injury to plaintiff. Rationale: The plaintiff is an innocent victim and thus
the defendant, having acted negligently, should bear the loss.
Example: While unloading P’s ship, worker D negligently knocked
a plank into the hold. (This was negligent because of the
unreasonable danger posed to cargo, to anyone working below, and to
the ship’s hull.) Unknown to D, gas fumes were present in the hold.
When the plank hit the bottom, it created a spark that ignited an
unforeseeable fire, which in turn destroyed the ship. D was held liable,
primarily on the theory that a negligent defendant should be liable for all
harm he has directly caused; the fact that the actual risk created by D
(explosion) differed from
109
that reasonably to be anticipated (minor impact damage or plank hitting

person) was deemed immaterial. [In re Polemis, supra, §446]
2) “Wagon Mound” view—no liability for unforeseeable
consequences [§470]
Most courts reject the approach of the Polemis court and its rigid
reliance on direct causation. The majority emphasize foreseeability and
assert that when an unforeseeable result occurs, it is unfair to hold the
defendant liable—no matter what causation pattern has transpired.
[Wagon Mound No. 1, 1961 A.C. 388 (1961)] (See further discussion,
infra, §497.)
Example: In Wagon Mound, D negligently discharged furnace oil
into the bay. A fire resulted and P’s dock was burned. D was held
not liable because, under the circumstances, only minor cloggage
damage to P’s dock could have been foreseen; fire was not a foreseeable
risk created by the negligence.
(b) Unforeseeable extent of injury—“thin-skulled plaintiffs” [§471]
The most common example of a defendant’s negligent act directly causing
an unforeseeable result involves cases in which the nature of the plaintiff’s
injuries is unexpected. This is the so-called thin-skulled plaintiff (or “eggshell
skull” or preexisting condition) situation. In these cases, all courts hold the
defendant liable for the full extent of the plaintiff’s injuries (i.e., even courts
following the Wagon Mound approach). Rationale: “A tortfeasor takes his
victim as he finds him.” [Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d
Cir. 1970); Freyermuth v. Lufty, 382 N.E.2d 1059 (Mass. 1978);
McCahill v. New York Transportation Co., 201 N.Y. 221 (1911)]
Example: P suffered a bruised chest and fractured ankle when the car
in which he was a passenger was struck by D. P had a history of heart
disease and died from a heart attack six days after the accident. At trial, the
jury should be given a thin-skulled plaintiff instruction—i.e., instructed that
if it finds that P’s death was the result of the accident, D can be liable
despite P’s unusual susceptibility to heart attacks. [Benn v. Thomas, 512
N.W.2d 537 (Iowa 1994)]
1) But note
A latent condition such as heart disease would almost certainly have
lowered the plaintiff’s life expectancy, thus reducing the damages that
the defendant must pay for future years, or, should plaintiff die, for
wrongful death. [Steinhauser v. Hertz Corp., supra]
110
2) Only applies to preexisting condition of plaintiff [§472]

The thin-skulled plaintiff rule only applies to preexisting conditions of the
plaintiff. It does not apply to property. For example, in Polemis (supra),
the preexisting condition of gas fumes in the hold did not trigger the thin-
skulled rule.
e. Indirect causation
(1) In general [§473]
As noted, indirect causation exists when an intervening force has come into play
after the defendant has acted and has either extended the plaintiff’s injuries or
combined with the defendant’s act to produce the plaintiff’s injuries. Among
such situations, factors to consider are:
(a) Unforeseeable intervening force with foreseeable result [§474]
Even though an unforeseeable force has intervened, the defendant will
generally be liable for the harm where the negligent act produces a
foreseeable result.
1) Exception—intentional or criminal act [§475]
Exceptions to this general rule sometimes apply where the intervening
conduct is an intentional or criminal act, but not when the intentional
conduct was foreseeable.
(b) Unforeseeable intervening force with unforeseeable result [§476]
In a few exceptional cases, the defendant may be found to be the
proximate cause of the plaintiff’s harm even though both the intervening
force and result are unforeseeable.
(c) Intervening force of third party [§477]
Even if proximate cause exists despite an intervening force, where the
intervening force is the negligent act of another, the defendant will likely—
pursuant to rules of factual causation and apportionment (see infra, §§1252-
1261, 1330-1333)—pay only a portion of the damages suffered after the
intervening negligence.
Example: D negligently set fire to a ship moored to a dock. Just when
the firefighters arrive, the dock owner negligently unties the moorings,
causing the ship to go adrift and burn to the water. In such case, D will be
held 100% responsible for the damages that the ship would have suffered
but for the dock owner’s negligence, and—assuming a finding of proximate
cause—some smaller percentage (perhaps 50%) of the damages caused in
part by the dock owner.
111
(2) Rules focusing on nature of intervening act
(a) Dependent intervening forces [§478]
A “dependent” intervening force is an act of a third person or an animal that
is a normal response to the situation created by the defendant’s negligent
act. Because such forces are responses arising because of the defendant’s
negligence, they are deemed foreseeable and will not relieve the defendant
of liability for the harm caused if they lead to foreseeable results.
1) Main types of cases involving dependent intervening forces
a) “Checking forces” [§479]
D’s negligence causes P serious harm, and P is taken to a hospital.
The surgeon improperly diagnoses P’s case and performs an
unnecessary operation (or, after proper diagnosis, performs a
necessary operation carelessly). It is reasonably foreseeable both that
P would have to go to the hospital as a result of the injuries inflicted
by D, and that P would receive unsuccessful medical treatment,
whether or not the result of negligence. (This is deemed a normal
risk incurred in hospitalization.) Hence, D is liable for the additional
harm sustained by P in the hospital. [Atherton v. Devine, 602 P.2d
634 (Okla. 1979)—ambulance accident on way to hospital after
initial injury; Thompson v. Fox, 192 A. 107 (Pa. 1937)]
1/ Exception—recklessness [§480]
This analysis does not apply to reckless medical conduct or to
deliberate efforts to maim the plaintiff—e.g., operation by a
drunk surgeon or performance of an operation completely
unrelated to P’s condition. [Upham’s Case, 139 N.E. 433
(Mass. 1923)]
b) “Rescue forces” [§481]
D’s negligence has imperiled P or P’s property. X sees the situation
and attempts to go to the aid of P or P’s property. In doing so, X is
acting reasonably, but nevertheless inadvertently aggravates P’s
injuries and also injures himself.
112
Because “danger invites rescue” (see supra, §327), the reasonable
person should have foreseen the rescuer’s attempts and also that the
attempts might cause further harm. Thus, D is liable for both the
aggravated injuries to P and the injuries to X. [Rest. 2d §445; but see
Snellenberger v. Rodriguez, 760 S.W.2d 237 (Tex. 1988)—no
liability on original tortfeasor where police officer-rescuer’s heart
attack was not foreseeable result of automobile driver’s negligence]
c) “Escape forces” [§482]
Because of D’s negligence, an elevator crashes to the bottom of
the shaft. The passengers panic and in rushing to the exit, push P
to the ground and trample him. The attempts of individuals
threatened with harm to escape are reasonably foreseeable, as is
the possibility that such attempts may endanger others. Hence, D
is liable for P’s injury. [Crow v. Colson, 256 P. 971 (Kan.
1927); Griffin v. Hustis, 125 N.E. 387 (Mass. 1919)]
d) Other “response” forces [§483]
Other reactions by animate forces may also be held foreseeable:
Example: D negligently explodes a firecracker, frightening
the horse P is riding. The horse throws P to the ground,
injuring P and Y’s dog that was trotting alongside. D is liable for
both injuries because the horse’s reaction is held a normal, and
thus foreseeable, response. [Quinlan v. City of Philadelphia,
54 A. 1026 (Pa. 1903)]
Example: D’s negligence causes P such serious injury that P

becomes insane and further injures or kills himself or a
third party. P’s reaction is held foreseeable (a “normal” response
to the situation created by D), so that D’s negligence is the
proximate cause of such injuries. [Fuller v. Preis, 35 N.Y.2d 425
(1974)—suicide by P seven months after accident, caused by
mental breakdown resulting from accident; but see District of
Columbia v. Peters, 527 A.2d 1269 (D.C. 1987)—no causal
link without showing that D’s act produced an “irresistible or
uncontrollable impulse to commit suicide”]
2) Caution—response must be normal [§484]
The crucial requirement in all of the above cases is that the
113
response to the situation created by the defendant’s negligent act be a

normal one. If the response or reaction is highly unusual, it is held not
to be a dependent intervening force (see infra, §488).
(b) Independent intervening forces [§485]
An “independent” intervening force is one that operates upon the situation
created by the defendant’s negligent act but which is not a response or
reaction thereto. (Such force may be the act of a third person or an animal,
or an “act of God.”) Where such is the case, the defendant will remain liable
for the foreseeable results of his act unless the force is an unforeseeable
intentionally tortious or criminal act. [Rest. 2d §442B] (However,
unforeseeable intervening forces may also lead to liability; see infra, §488.)
Example: D negligently causes an automobile collision in which a
bystander, P, is injured. Surgery for P is required, and, in the course of
surgery, bacteria from the air (foreseeable intervening force) enter the open
wound and infect it, eventually causing P’s death. D may be held liable for
P’s death. [Hastie v. Handeland, 274 Cal. App. 2d 599 (1969)]
Example: D negligently causes a collision with a truck carrying noxious

gas. The truck overturns, discharging the gas into the air, and the wind
carries the gas onto P’s nearby land, damaging P’s crops. Because wind is
reasonably foreseeable, D is liable for the crop damage.
1) Problem—intervening tortious or criminal acts [§486]
Ordinarily, criminal acts on the part of others are not reasonably
foreseeable. However, if the defendant’s negligent conduct has created a
situation in which a reasonable person would have foreseen that
negligent, intentional, or even criminal acts might be committed by
others (i.e., if defendant has increased the risk that this type of act will
occur), then the occurrence of such acts is held a foreseeable
intervening force that does not terminate the defendant’s liability.
Example: Because D negligently blocks the area alongside a road, P
is forced to walk in a roadway, where he is struck by a truck. It is
reasonably foreseeable that negligent motorists may strike persons forced
into the street by D; thus, D is liable if P is run down. [Grainy v.
Campbell, 425 A.2d 379 (Pa. 1981)—careless act by third party, if
foreseeable, does not foreclose D’s liability]
114
Example: D’s train fails to stop at the station and the conductor
negligently tells P to walk home. To get home, P must walk back
through a hobo encampment. The criminal rape of P by a hobo is
foreseeable, and D would be civilly liable for the rape. [Hines v.
Garrett, 108 S.E. 690 (Va. 1921)]
Example: A landlord who fails to install proper locks on entrances

to the common areas of an apartment building in a high-crime
neighborhood may be held liable to a tenant for injuries inflicted by a
mugger in the hallway of the building (see infra, §§707-709—lessor’s
general duty to safeguard premises against crime). [Trentacost v.
Brussel, 412 A.2d 436 (N.J. 1980)]
(3) Indirect causation—rules focusing on results of defendant’s negligence
[§487]
As alluded to earlier, there remain three fact situations calling for special
consideration: (i) what if a foreseeable result is caused by an unforeseeable
intervening force; (ii) what if an unforeseeable result is caused by a foreseeable
intervening force; and (iii) what if an unforeseeable result is caused by an
intervening force that is itself unforeseeable?
(a) Foreseeable results produced by unforeseeable intervening forces
[§488]
The fact that an intervening force was not reasonably foreseeable under the
circumstances does not usually excuse the defendant from liability as long as
the result was foreseeable. If the ultimate result was reasonably foreseeable
under the circumstances, liability is usually imposed even though the harm
occurred in a totally unexpected manner.
1) Acts of God [§489]
Extraordinary and unprecedented floods, storms, or other weather
conditions are usually held to be unforeseeable intervening forces. But
they are not considered “superseding causes” where they lead to the
result threatened by the defendant’s original negligence.
Example: D negligently allowed gas vapors to accumulate in the
hold of its ship. The resulting explosion and damage to nearby
persons and property (the results) were foreseeable, and D was therefore
held liable—even though the explosion was actually set off by an
unprecedented stroke of lightning (the intervening force) that was not
foreseeable. [Johnson v. Kosmos Portland Cement Co., 64 F.2d 193
(6th Cir. 1933)]
115
2) Distinguish—unforeseeable criminal or tortious acts [§490]

Where a third person’s criminal or tortious conduct was not reasonably
foreseeable (i.e., defendant’s conduct has not enhanced the risk that
such acts will occur; see supra, §486), but the ultimate result was
nonetheless foreseeable, the defendant’s liability may turn on the
culpability of the intervening act.
a) Rationale
For some courts, the moral culpability of a person whose misconduct
was intentional or reckless overwhelms the moral responsibility of a
defendant who was merely negligent.
b) Intentional or criminal acts [§491]
If the defendant had no reason to expect intentionally tortious or
criminal acts by a third person, some courts hold the defendant not
liable for harm caused thereby, even though his negligence afforded
an opportunity for such conduct, and foreseeable harm resulted.
[Rest. 2d §448]
Example: P was pulled from a lake in an unconscious
condition. Firefighters arrived on the scene. To warm P,
firefighter T gave the nurse at the scene a heating block made
and sold by defendant D. The block did not properly warn that
insulation was needed before the block was applied to a body.
There was evidence that T knew of this need but handed the
block to the nurse without insulation and watched as she applied
it in that manner—causing serious burns to P. If the jury found
those facts, then the outrageousness of T’s behavior would
supersede D’s negligent labeling. [McLaughlin v. Mine Safety
Appliances Co., 11 N.Y.2d 62 (1962)]
Compare: D hotel failed to maintain its fire escape routes.

In a fire started by an arsonist, guests were injured when
they had to jump from upper floor windows. The court rejected
D’s claim that its negligence was superseded by the criminal act
of the arsonist. The hotel’s obligation was to anticipate fires from
whatever cause. [Addis v. Steele, 648 N.E.2d 773 (Mass.
1995)]
c) Negligent acts [§492]
On the other hand, a third person’s negligent conduct does not
relieve the defendant of liability—even though such conduct was
unforeseeable—if it causes a result similar to that
116
threatened by the defendant’s conduct, unless the action was
“highly extraordinary” under the circumstances (i.e., more than
unforeseeable). [Rest. 2d §447(b)]
Example: D negligently allows its telephone pole to become
rotten with termites. The pole falls and injures P, but only after
having been jarred by a careening automobile negligently driven by
X. D would be held liable for P’s injuries because the pole’s toppling
and injuring a passerby was the foreseeable result of D’s original
negligence. The fact that this result was brought about by X’s
negligent driving is not so highly extraordinary as to cut off
causation. [Gibson v. Garcia, 96 Cal. App. 2d 681 (1950)]
1/ Abnormal rescue attempts by third persons [§493]
An abnormal or foolhardy effort by a third person to avert a risk
created by the defendant is deemed an unforeseeable
intervening force, and relieves the defendant from liability for
injuries—even if it leads to a foreseeable result. This would be a
“moral responsibility” decision as discussed above.
Example: P was driving on a two-lane road. D negligently
attempted to pass P. While the cars were abreast of one
another, a truck appeared ahead in the road, traveling in the
opposite direction. To avoid a potential crash, P steered his car
toward the right shoulder, but a passenger in P’s car grabbed the
steering wheel and turned the car sharply to the left, so that the
car crossed the road, ran into a ditch, and overturned. The
passenger’s actions were a superseding cause of P’s damages.
[Robinson v. Butler, 33 N.W.2d 821 (Minn. 1948)]
3) Third person’s failure to prevent harm [§494]
Although not actually deemed an “intervening act” (see supra, §459),
proximate cause issues involving a third person’s omission to act
generally are treated in the same manner as affirmative negligence by a
third person. Thus, the failure of a third person to act so as to prevent
the harm threatened by the defendant’s negligent conduct does not
relieve the defendant of liability, even where the third person is under
some legal duty to act (and is therefore negligent in failing to avert the
harm). [Rest. 2d §452]
117
Example: Where D negligently allows poisonous gas to escape from

its pipeline, it is liable for injuries to workers in the vicinity
(foreseeable result), even though the workers’ employer, X, knew of the
danger and was negligent in failing to protect them. X’s negligence was
foreseeable and did not supersede D’s liability. [Ewart v. Southern
California Gas Co., 237 Cal. App. 2d 163 (1965)]
a) Limitation—“neutralization of the risk” [§495]
In certain cases, the third person’s failure to act may be deemed so
culpable or extraordinary that it will be held to have “neutralized the
risk” created by the defendant’s original negligence, and the failure to
act will be treated as the superseding cause of the harm suffered by
the plaintiff. [Rest. 2d §452 cmt. f]
Example: D negligently leaves dynamite caps on the ground
and a young child, P, picks one up and shows it to his father.
If P’s father recognizes what it is but fails to take it away, the
father’s negligence will be considered so “highly extraordinary”
as to have “neutralized the risk” created by D’s original
negligence so that if the cap subsequently explodes and injures P
or a third person, D is not liable. [Kingsland v. Erie County
Agricultural Society, 298 N.Y. 409 (1949)]
4) Application of the “risk rule” [§496]
In a jurisdiction that applies the “risk rule,” as adopted by the Third
Restatement (see supra, §447), proximate cause exists where the harm is
within the scope of the risk that made the defendant’s conduct
negligent. This is true even if an unforeseeable intervening act, including
an unusual force of nature or independent culpable or nonculpable
human act, is also a factual cause of the harm. [Rest. 3d-PH §34]
Example: D city negligently leaves an open pit in the sidewalk
without surrounding barriers or warnings. Proximate cause exists
against D under the risk rule when P is injured by a passerby who
intentionally pushes P into the pit. The harm (landing in the pit) was
within the scope of the risk that made D’s conduct negligent, although
the manner (P pushed in by another) was unexpected.
a) Rationale
With the adoption of comparative responsibility rules (see
118
infra, §§815-822, 1330-1333), there is little reason to completely bar

a plaintiff’s recovery against a defendant simply due to the
intervening act of another potential defendant.
(b) Unforeseeable results produced by foreseeable intervening forces
[§497]
Even though an intervening force may be foreseeable, some courts will
terminate the defendant’s liability if the result was unforeseeable, while
others would nevertheless impose liability. This presents a variation on the
“Polemis-Wagon Mound” debate (see supra, §§469-470).
Example—“narrow” view: P’s father had heated a pot of water on the
kitchen stove because D landlord negligently failed to provide hot water
to the apartment. P collided with his father, who was carrying the water to
the bathroom, and was burned when the water spilled on him. Held: No
liability because the kind of injury was unlike that reasonably expected, such
as illness, from D’s original negligent act. [Martinez v. Lazaroff, 48 N.Y.2d
819 (1979); but see Enis v. Ba-Call Building Corp., 639 F.2d 359 (7th Cir.
1980)—contra (on almost identical facts)]
Example—“broad” view: D negligently moored its ship in the river.

The ship was set adrift by current (foreseeable intervening force) and
was carried downstream, where it struck and collapsed a bridge. The
collapse created an ice jam, which caused water to back up and flood P’s
factory on the riverbank (unforeseeable result). (The foreseeable damage to
P’s factory was being crashed into by the ship.) D was liable for the
flooding. [In re Kinsman Transit Co. (No. 1), 338 F.2d 708 (2d Cir.
1964)]
(c) Unforeseeable results produced by unforeseeable intervening forces
[§498]
As a general rule, whether courts emphasize the foreseeability of the result
or the foreseeability of the intervening force, where both are unforeseeable,
all courts agree that defendant is not liable.
Example: D negligently blocked a road, forcing P to take a detour along
a more dangerous path. While P was on the detour, he was struck by a
falling airplane. The court denied liability. [Doss v. Town of Big Stone
Gap, 134 S.E. 563 (Va. 1926)] But note: If the path were more dangerous
because of the risk of falling rocks, and a rock fell on P, D would be liable
(foreseeable result).
1) Common carrier exception [§499]
Some courts that impose a high standard of care on common carriers
may hold a defendant carrier liable for any loss or damage that occurs to
goods delayed in transit, even though the damage
119
(the result) was unforeseeable and caused by an unforeseeable flood or
other “act of God” (the manner). [Green-Wheeler Shoe Co. v.
Chicago, Rock Island & Pacific Railway, 106 N.W. 498 (Iowa 1906)]
(d) Comment—ultimate result depends on degree of emphasis on
foreseeability [§500]
Note again that every case involving an unforeseeable result is by definition
a bizarre situation involving some aspect that the defendant could not
reasonably expect. This factor favors the defendant; but on the other hand,
the fact that the defendant has been negligent and the actual cause of the
plaintiff’s harm also enters into the court’s determination. The choice
depends ultimately on the importance the court gives to foreseeability.
f. Unforeseeable plaintiff [§501]

This situation recalls the Palsgraf v. Long Island Railroad case (see supra, §321)
involving the falling scales. Courts following the Cardozo approach would reject an
unforeseeable plaintiff at the duty stage. But those courts following the Andrews
view must still face the proximate cause question and may consider the plaintiff’s
unforeseeability simply as a factor favoring the defendant in the proximate cause
issue.
(1) Uncommon applicability [§502]
Probably because of the unusual sequences involved, few courts have faced a
true Palsgraf situation; i.e., the occasion of a potentially unforeseeable plaintiff
is not all that common. Most jurisdictions have found cause to address the
question, however. When analyzed as a question of duty, most courts deny
liability where the plaintiff was not foreseeable. But when analyzed as proximate
cause issue, courts either deny liability or leave the issue to the jury.
Example: X is struck by D bus and tossed in the air so as to hit P, who had
been in what appeared to be a safe spot. The court found no liability.
[Dahlstrom v. Shrum, 84 A.2d 289 (Pa. 1951)]
Example: D negligently ran down X. Seven years later, X, who had

suffered brain damage from the accident, shot and wounded P. The court
denied liability against D because the passage of time permitted the intervention
of many other possible factors. [Firman v. Sacia, 7 A.D.2d 579 (1959)]
(2) Andrews view [§503]
Because Justice Andrews would permit a jury to find liability in Palsgraf, he
must reject the majority’s total reliance on foreseeability. Instead, he determined
that several factors should be considered in deciding whether a jury could
properly find that a defendant’s negligence was the proximate cause of a
plaintiff’s harm (see supra, §449).
120
g. Summary of proximate cause

(1) Role of foreseeability [§504]
Although the concept of foreseeability is playing a role at three points in
proximate cause analysis, the term probably plays a different role at each point.
(a) Manner [§505]
Generally, it is irrelevant whether a particular manner of occurrence was
foreseeable as long as the result was. Rather, the test is a negative one:
Manner of occurrence is irrelevant unless the sequence was “highly
extraordinary”—in which case courts split over the result. Some courts
conclude that it is unfair to hold a defendant responsible for such sequences.
Others conclude that if the defendant’s negligence led to a foreseeable result,
this is enough to create liability, and a highly extraordinary manner raises no
moral argument to relieve the defendant from liability that would otherwise
exist.
1) Intervening intentional or criminal acts [§506]
If intervening intentional or criminal acts are foreseeable, liability will
follow. But if they are unforeseeable, the greater moral blameworthiness
of the third party’s act leads some courts to hold that it supersedes the
defendant’s liability, even when a foreseeable result occurs.
(b) Result [§507]
Courts are split over how important it is that the result that befalls the
plaintiff have been reasonably foreseeable. Although courts that follow
Wagon Mound (see supra, §470) give foreseeability great weight (except in
“thin-skull” cases), courts following Polemis (see supra, §469) reject it in
“direct” cases, and courts following Kinsman Transit (see supra, §497)
deemphasize it in “indirect” cases.
(c) Plaintiff [§508]
Foreseeability of the plaintiff is absolutely central to the courts following the
majority in Palsgraf, while other courts give it some weight when
considering proximate cause.
(2) Distinguish—duty [§509]
Remember that the duty element involves the question of who is owed a duty of
due care. Foreseeability is used in that analysis under both the Cardozo view
(foreseeability of plaintiff or group to which plaintiff belongs) and the Andrews
view (foreseeability of harm to anyone).
7. Damages [§510]
Once a negligent act and causation are established, the plaintiff must show damages
resulting therefrom in order to impose liability on the defendant. Unlike intentional torts,
in every case where liability is based on negligence, there must be a showing of actual
damages to person or property.
121
a. Types of damages recoverable [§511]

The basic purpose of awarding damages in negligence cases is compensatory, rather
than punitive—i.e., to restore the plaintiff insofar as possible to her condition before
she was injured, rather than to punish the defendant.
(1) “Special” damages [§512]
The plaintiff is entitled to recover all economic losses and expenses (“special”
damages) she has suffered as a result of the injury—e.g., medical bills, lost
wages or business profits, cost of hiring household help, etc. This includes
expenses already incurred, and expenses that the plaintiff proves she probably
will incur in the future (as where she remains under medical care or is unable to
return to work).
(a) Computing lost wages—the tax question
1) Traditional rule [§513]
Until recently, the uniform practice was to measure wage loss by gross
earnings before income tax deductions. [John E. Theuman, Annotation,
Propriety of Taking Income Tax into Consideration in Fixing Damages in
Personal Injury or Death Action, 16 A.L.R.4th 589 (1982)]
2) Federal rule [§514]
In cases under the Federal Employers’ Liability Act [45 U.S.C. §§51 et
seq.], and perhaps other federal actions, the wage loss must be
calculated on an after-tax basis unless the difference between the two
methods would be trivial. [Norfolk & Western Railway v. Liepelt, 444
U.S. 490 (1980)]
a) Rationale
Under federal tax laws, damages for physical injuries, including
awards for lost wages resulting from physical injuries, are exempt
from federal income taxes.
3) State rule [§515]
Although many states have adhered to the traditional rule [see, e.g.,
Johnson v. Manhattan & Bronx Surface Transit Operating
Authority, 71 N.Y.2d 198 (1988)], others have insisted that after-tax
income is the only permissible basis for assessing the loss [see, e.g.,
Caldwell v. Haynes, 643 A.2d 564 (N.J. 1994)].
(b) Future economic losses [§516]
The recovery for future loss of earnings, medical expenses, etc., can take
into account whatever period of time the plaintiff’s disability is expected to
last.
1) Child’s loss of earning capacity [§517]
If a child has suffered a severe injury with lasting or permanent
122
effects that will likely impair the child’s ability to earn, a number of
jurisdictions allow juries to consider the child’s loss of income-earning
capacity even without specific quantifying evidence. [See, e.g., Lesniak
v. County of Bergen, 563 A.2d 795 (N.J. 1989)]
2) Effect of inflation [§518]
If the plaintiff’s disability is expected to continue over a period of years,
modern courts allow the jury to take into consideration expert testimony
as to probable future inflation rates in computing the plaintiff’s loss of
future earnings and future medical expenses. [See United States v.
English, 521 F.2d 63 (9th Cir. 1975)]
3) Award must be discounted to present value [§519]
After factoring in the inflation rate (if any), most courts require the
award for future economic losses to be discounted to its present value,
i.e., the amount of money that if now invested at reasonable rates would
defray the economic losses that the plaintiff is expected to sustain in the
future. [Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523
(1983)]
a) Distinguish—pain and suffering [§520]
Most courts do not discount awards for future pain and suffering
(below) because such awards are not really mathematically
computable. [Brant v. Bockholt, 532 N.W.2d 801 (Iowa 1995); but
see Metz v. United Technologies Corp., 754 F.2d 63 (2d Cir.
1985)—contra]
4) Minority rule—offsetting factors [§521]
Some courts have concluded that the discount factor and the inflation
rate are likely to be about the same, so that there is no need to take
account of either factor. The plaintiff should be awarded the full amount
awarded by the jury without discount. [Beaulieu v. Elliott, 434 P.2d
665 (Alaska 1967)]
123
(2) “General” damages [§522]

In addition to all special damages incurred, the plaintiff is entitled to recover
those damages deemed inherent in the injury itself—e.g., pain and suffering
(past, present, and future), and any disfigurement (loss of limb, scars, etc.) or
disability (loss of mobility, etc.) attributable to the injury. These are “general”
damages.
(a) Pain and suffering before death [§523]
A defendant is liable for the pain and suffering experienced by a plaintiff
before death from an accident the defendant negligently causes, even when
the plaintiff lives only a very short time. Thus, an award of $30,000 for the
two minutes a 14-month-old infant suffered while drowning was appropriate
[Landreth v. Reed, 570 S.W.2d 486 (Tex. 1978)], and $70,000 was not
excessive when the plaintiff was conscious for 60 minutes after she was hit
by a train [Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126 (1980); but
see Cal. Civ. Proc. Code §377.34—contra].
1) Victim conscious [§524]
Courts require that the victim be sufficiently conscious to experience the
pain and suffering. [McDougald v. Garber, 73 N.Y.2d 246 (1989)]
(b) Pre-impact fear and post-impact pain [§525]
Most courts award damages for fear caused by apprehension of impending
death. [Haley v. Pan American World Airways, Inc., 746 F.2d 311 (5th
Cir. 1984)—$15,000 for four to six seconds of fear felt by passenger who
sensed impending fatal crash; Beynon v. Montgomery Cablevision Ltd.
Partnership, 718 A.2d 1161 (Md. 1998)—upholding $350,000 award for
emotional distress suffered during two seconds before deadly automobile
accident; but see St. Clair v. Denny, 781 P.2d 1043 (Kan. 1989)—no
recovery for pre-impact distress where skid marks from P’s car were only
60 feet long]
(c) Loss of enjoyment of life [§526]
Most courts have refused to recognize a separate item of damages called
loss of enjoyment of life that would cover such matters as the inability to be
active or to play the violin. These items are properly considered as a
component of pain and suffering. [Leiker v. Gafford, 778 P.2d 823 (Kan.
1989)—plaintiff must be conscious that such a loss occurred; McDougald
v. Garber, supra; but see Fantozzi v. Sandusky Cement Products Co.,
597 N.E.2d 474 (Ohio 1992)—concluding that separate measurement of lost
enjoyment would achieve greater precision in measurement as long as
duplication of items was avoided]
124
(d) Unexpected damages included [§527]

Remember that “the tortfeasor takes his victim as he finds him” (see supra,
§471) so that the defendant is liable for all injuries actually sustained by the
plaintiff even if they are due to the plaintiff’s abnormal sensitivities, to
aggravation of some preexisting illness or condition (e.g., a minor impact
that causes a previously dormant condition to “flare up,” resulting in
permanent disability), or if they make the plaintiff susceptible to an illness or
condition that she otherwise would not have suffered (e.g., complications
following surgery required by the original injury).
(3) Damages for destruction of personal property [§528]

When personal property has a market value, that value is the measure of
damages for its destruction. If it has no market value but can be reproduced or
replaced, the cost of reproduction or replacement is the measure. If the
property has no market value and can be neither replaced nor reproduced,
damages are measured by its value to the owner, but “unusual sentimental
value” is not included. [Mieske v. Bartell Drug Co., 593 P.2d 1308 (Wash.
1979)—loss of treasured family movie film]
(4) Punitive damages not recoverable [§529]
As indicated above, damages in a negligence case are intended to be
compensatory only. Hence, punitive damages—sometimes allowed for
intentional torts (see supra, §23)—are not recoverable for negligent conduct.
(a) Distinguish—“reckless conduct” [§530]
Many states do permit punitive damages when the defendant has engaged in
conduct that courts consider “reckless”—e.g., drunk driving. Rationale:
The voluntary act of driving while intoxicated evinces
125
a sufficiently reckless attitude to support an award of punitive damages.

[Taylor v. Superior Court, 24 Cal. 3d 890 (1979); Johnson v. Rogers,
763 P.2d 771 (Utah 1988)]
b. “Avoidable consequences” rule [§531]

Some courts refer to the “avoidable consequences” rule as “the plaintiff’s duty to
mitigate damages”: An injured party must act reasonably to minimize her loss or
injury, and where the damages are unnecessarily aggravated or increased through her
failure to do so, the additional damages are not recoverable. [Zimmerman v.
Ausland, 513 P.2d 1167 (Or. 1973)]
Example: P unreasonably refuses to submit to medical care following a personal
injury caused by D’s negligence. D is liable only for the damages originally
inflicted and those likely to have occurred after reasonable treatment—not for any
added pain, suffering, or disfigurement that could have been avoided had P sought
medical attention. [Withrow v. Becker, 6 Cal. App. 2d 723 (1935)]
(1) Burden of proof [§532]
Although the plaintiff always has the burden of proving her damages, the burden
is on the defendant to prove that the plaintiff unreasonably failed to mitigate
those damages (as by refusing to submit to surgery or other medical treatment).
(2) What constitutes “unreasonableness” [§533]
Factors considered in determining the reasonableness of the plaintiff’s failure to
mitigate damages include: (i) the risk involved in the mitigating conduct; (ii) the
probability of success; (iii) the pain and effort involved; and (iv) whether the
plaintiff could financially afford the course of action (e.g., medical treatment,
etc.). [Hall v. Dumitru, 620 N.E.2d 668 (Ill. 1993)—no duty to undergo any
surgery whether major or minor]
(3) “Anticipatory” avoidable consequences [§534]
Although most avoidable consequences cases involve the plaintiff’s unreasonable
conduct after an accident (e.g., failure to get proper medical attention after
injury), the issue also may arise where the plaintiff acted unreasonably prior to
an accident.
(a) Application—failure to wear safety belts [§535]
Thus, the refusal to wear a safety belt may be an unreasonable failure to
minimize harm from a future automobile collision—on the theory that had
the safety belt been used, the plaintiff’s injuries might not have been as
severe (or may have been avoided entirely).
1) Judicial opinion [§536]
However, only a few courts faced with the issue (e.g., New York,
California), applying the reasonable person standard (i.e.,
126
whether a reasonable person would have worn the belts), have

concluded that such neglect is to be considered in determining the
plaintiff’s damages. [See, e.g., Spier v. Barker, 35 N.Y.2d 444 (1974)]
2) Legislation [§537]
Although most states now have statutes requiring the use of safety belts,
many of these laws bar (or limit the effect of) evidence of failure to use
the belts to establish the plaintiff’s contributory negligence or to establish
an unreasonable failure to mitigate damages.
(4) Impact of comparative negligence [§538]
As to the effect of comparative negligence on the avoidable consequences rule,
see infra, §831.
c. “Collateral sources” rule [§539]

In most states, the plaintiff is entitled to recover the full amount of her damages from
the defendant without any deduction for benefits that she may have received from
sources “collateral” to the tortfeasor, such as insurance protection or a benefits
program that the victim has provided for herself, or that has been provided for the
victim by her employer or the government. [Montgomery Ward & Co. v.
Anderson, 976 S.W.2d 382 (Ark. 1998)]
(1) Rationale
The defendant’s liability should not be lessened by the fact that the plaintiff (or
her employer or the government) was prudent enough to provide insurance
against the kind of loss that the defendant caused. [Helfend v. Southern
California Rapid Transit District, 2 Cal. 3d 1 (1970); Bandel v. Friedrich,
584 A.2d 800 (N.J. 1991)]
(2) Criticism—“double recovery” [§540]
This result has been criticized as permitting the plaintiff to recover twice for the
same losses, so that awarding those items of damages against the defendant is
inefficient and is more punitive than compensatory in nature.
(a) Answer to criticism—subrogation [§541]
However, insurance law and written policies increasingly provide for
subrogation (below) or otherwise require the injured party to refund to the
insurer any benefits paid upon ultimate recovery from the tortfeasor and so,
in practice, there is often no “double recovery.”
(3) Subrogation rights of plaintiff’s insurer [§542]
To whatever extent the plaintiff’s own insurance company has paid any benefits
to the plaintiff (e.g., for medical expenses or property damage to her car), legal
rules and most policies today provide that the insurance company is
“subrogated” to the claims the plaintiff may have against the person who caused
those losses—i.e., an automatic assignment.
127
(a) Right to reimbursement [§543]

Usually, insurance policies give the insurance company the right to sue the
defendant in the name of the insured (plaintiff). In practice, however, the
plaintiff more frequently maintains her own action against the defendant (for
pain and suffering and whatever other damages or losses she has sustained),
while her insurance company asserts a right to reimbursement out of any
settlement or judgment plaintiff obtains.
(b) Defenses may be asserted against insurer [§544]
The insurance company, as subrogee (assignee), “stands in the plaintiff’s
shoes” with respect to its right to recover from the defendant. Thus,
whatever defenses could be asserted against the plaintiff—e.g., contributory
negligence—can likewise be asserted against her insurance company.
C. Special Duty Questions

This section deals with the circumstances under which the defendant may owe some
special duty of care to the plaintiff. Usually, this will be a duty owed in addition to the
general duty of due care the defendant owes under the “reasonable person” standard,
supra. However, in a few instances (e.g., when dealing with land occupiers, see infra),
the special duty of due care is in place of the general duty of due care. As a matter of
analysis, if the circumstances indicate that some special duty of care may be on point,
consider first whether the defendant created a risk of physical harm and therefore owed a
duty of reasonable care. Then, even if the defendant owed a duty of reasonable care,
consider whether a special duty might also apply.
2. Duties and Breach Measured by Statute
a. Nature of statute
(1) Civil statutes [§546]
Some statutes regulating conduct expressly provide a civil remedy for their
violation. In such cases, the plaintiff can sue directly under the statute and
usually need not be concerned with common law negligence.
(2) Criminal statutes and duty—no preexisting general duty of care [§547]
If a criminal statute regulates the conduct involved in a tort (e.g., traffic codes),
courts usually rely on the statute only to determine whether the defendant has
breached his common law duty of care (see supra, §§396 et seq.). If there is no
preexisting common law duty of care, as in the case of
128
statutes that criminalize failure to protect or aid others, courts are reluctant to use
the criminal statute to create a new duty. [Perry v. S.N., 973 S.W.2d 301 (Tex.
1998)—no tort duty created where defendants violated criminal statute requiring
them to report suspected instances of child abuse]
Example: Although a few states have statutes requiring citizens to attempt
“easy” rescues of those in peril, no state has created a civil duty to rescue.
b. Means by which statute gives rise to tort duty [§548]

Whether the statute is civil or criminal in nature, the statute might give rise to a tort
duty in one of two ways: (i) by leading a court to recognize a legislatively-created
“statutory tort,” or (ii) by supplying the reason for a court to impose a common law
tort duty.
(1) “Statutory torts,” or “private enforcement actions” [§549]
Whether or not a common law duty might otherwise apply, a statute could
expressly or impliedly impose a tort duty. If the court rules that the statute
creates a statutory tort (or “private enforcement action”), the scope of the
defendant’s duty is defined wholly by the statute—if the defendant complied
with the statute, there is no breach of duty; if the defendant violated the statute,
a breach exists. If the statute does not expressly authorize a private right of
action, a court may hold that the statute impliedly does so. [Alexander v.
Sandoval, 532 U.S. 275 (2001)—concluding that the disparate-impact
regulations of Title VI of the Civil Rights Act do not imply a private right of
action] Courts consider the following factors in deciding whether a statute
impliedly creates a statutory tort:
(i) Whether the plaintiff is one of the class for whose particular benefit the
statute was enacted;
(ii) Whether recognition of a private right of action would promote the
legislative purpose; and
(iii) Whether creation of such a right would be consistent with the legislative
scheme.
Example: A statute requires that schools conduct periodic scoliosis
screenings. D school fails to do the required screening, and P’s parents sue
under the statute alleging that had D tested for scoliosis, P would have been
diagnosed and received timely treatment. The court determined that although P
was one of the class for whose benefit the statute was enacted, the legislature
clearly contemplated administrative enforcement of the statute (e.g., withholding
funding for noncompliance), and an implied private right of action would be
inconsistent with the legislative
129
scheme. [Uhr v. East Greenbush Central School District, 94 N.Y.2d 32

(1999)]
(2) Common law duty by reference to statute [§550]
If the defendant would not otherwise owe a common law duty—most commonly
because there exists no affirmative duty to rescue, warn, or protect another (see
infra, §551)—and even if the court determines that a statute does not expressly
or impliedly authorize a statutory tort, a court may still impose an affirmative
common law tort duty by reference to the statute. [Rest. 3d-PH §38] The
reasoning behind such decisions is that the statute represents some evidence of a
community norm that counsels in favor of recognizing a common law tort duty.
Example: A criminal statute requires citizens to report suspected child
abuse. By reference to the statute, a court may impose a common law
affirmative duty on D for failure to protect neighbor P’s children from abuse by
D’s husband. [J.S. v. R.T.H., 714 A.2d 924 (N.J. 1998)] But note: Courts are
not unified in their willingness to impose a common law duty based on such
child-protection statutes.
3. Duty to Aid Others in Emergency
a. General rule—no duty [§551]

Under the general common law rule, a defendant owes no duty to warn, protect, or
rescue a stranger from a risk of harm—at least if the defendant was in no way
responsible for that person’s risk or injury. Rationale: Tort law is not concerned with
purely moral obligations. [Bishop v. Chicago, 257 N.E.2d 152 (Ill. 1970)]
b. Exceptions—duty owed where special factors present [§552]

Where certain factors are present, the law imposes upon a defendant an “affirmative
duty” to act:
(1) Special relationship to plaintiff [§553]
Courts recognize that a defendant owes a duty to go to the aid of another in an
emergency where some special relationship exists between them—e.g., parent-
child, employer-employee, host-guest, carrier-passenger, jailerprisoner, etc.
[Carey v. Davis, 180 N.W. 889 (Iowa 1921); and see Farwell v. Keaton, 240
N.W.2d 217 (Mich. 1976)—extending duty to “companions on a social venture”;
but see H.B. & S.B. v. Whittemore, 552 N.W.2d 705 (Minn. 1996)—trailer
park manager has no duty to tell parents of resident children who told manager
about abuse by another resident; Donaldson v. YWCA, 539 N.W.2d 789
(Minn. 1995)—YWCA desk clerk has no duty to check on reportedly distraught
resident] This duty may extend beyond emergencies (see infra, §567).
130
131
(2) Responsibility for plaintiff’s peril [§554]

A defendant who is responsible for the plaintiff’s injury or peril is under a duty
to go to the plaintiff’s aid and to exercise reasonable care in so doing.
(a) What if defendant not at fault? [§555]
Although earlier decisions found a duty to aid only where the defendant’s
responsibility was tortious, current decisions recognize a duty to aid a person
in peril even where the defendant’s original conduct was innocent but has
nevertheless created a perilous situation (e.g., where D’s golf ball strikes P
on the head and no risk to P had been foreseeable, D still owes a duty to
render assistance). [Rest. 2d §321]
(3) Statutory exceptions [§556]

The no-duty rule has also been limited in several states by statutes requiring
persons to assist others in certain emergency situations.
Example: Several states have statutes making it a criminal offense for the
driver of an automobile to fail to go to the aid of any person involved in an
accident with his car, even though the driver was in no way at fault in causing
the accident. [See Cal. Veh. Code §20003] Civil liability may also be imposed.
(a) Note
By statute, a few states impose criminal liability for failure to go to the aid
of anyone whom the defendant recognizes to be in serious peril, provided
this would not greatly endanger the defendant. [See 12 Vt. Stat. Ann. §519]
However, no state has created a civil duty of easy rescue.
(4) Special relationship to harmer [§557]
If the defendant has some relationship with the person who does the harm,
courts may use that to recognize an affirmative duty to use due care to avoid the
harm. (See infra, §§591 et seq.) Thus, if a doctor or psychotherapist has reason
to know that a patient is likely to harm a specific third party, the doctor owes a
duty to use reasonable care on behalf of the intended victim. [Tarasoff v.
Regents of the University of California, 17 Cal. 3d 425 (1976)]
132
Example: A physician who fails to keep a patient under observation after he

loses consciousness twice in the physician’s office owes a duty of care to
the victim of a subsequent automobile collision. [Cram v. Howell, 680 N.E.2d
1096 (Ind. 1997)]
Example: A psychiatrist who knows or should know that a schizophrenic

child poses a serious danger of violence to others owes a duty to the child’s
parents even in the absence of specific threats against them. [Hamman v.
County of Maricopa, 775 P.2d 1122 (Ariz. 1989)]
Example: Despite the absence of a doctor-patient relationship, a doctor has

a duty to warn an infant’s father about dangers of contracting polio from
coming into contact with feces of the recently immunized infant. [Tenuto v.
Lederle Laboratories, 90 N.Y.2d 606 (1997)]
Compare: A psychotherapist who knows that an outpatient is schizophrenic

owes no duty to warn when the outpatient has not shown any violent
tendencies and the psychotherapist has no reason to know the identity of the
outpatient’s friends (and in particular, the friend the outpatient eventually stabbed
to death). [Fraser v. United States, 674 A.2d 811 (Conn. 1996)]
Compare: There is no duty to warn a misdiagnosed patient’s future

husband of Hepatitis C, where, at the time of the misdiagnosis, neither the
doctor nor the patient knows of the (future) husband. [Hawkins v. Pizarro, 713
So. 2d 1036 (Fla. 1998)]
Compare: A physician reviewing a surgery team at the behest of a hospital

has no duty to intervene when he observes malpractice occurring. [Clarke
v. Hoek, 174 Cal. App. 3d 208 (1985)]
(a) Failure to warn patients about risks to others [§558]
Most courts emphasize foreseeability in imposing a duty on a physician to
those who might be injured by the patient if the physician does not
adequately warn them or the patient about a condition. The outcomes of
these cases vary widely according to facts and jurisdiction.
Example: A physician who discovers a congenital condition in a patient
that is likely to arise in the patient’s children has a duty to warn the
patient about the dangers her children may face. [Pate v. Threlkel, 661 So.
2d 278 (Fla. 1995)]
Compare: A physician who fails to warn a patient against driving when

his epilepsy is not under control does not owe a duty
133
to victims of a subsequent accident. [Praesel v. Johnson, 967 S.W.2d 391

(Tex. 1998)—court reluctant to extend liability beyond the relationship even
though the harm might be deemed foreseeable]
(b) Congenital diseases [§559]
When a physician diagnoses a patient with a genetically transferable disease,
the physician owes a duty to the children to warn them of the dangers they
face, but this duty can be fulfilled by warning the patient. [See Pate v.
Threlkel, supra; but see Safer v. Estate of Pack, 677 A.2d 1188 (N.J.
1996)—dicta suggesting that there may be situations in which the duty
requires warning to persons other than the patient]
c. Distinguish—duty owed where defendant undertakes to aid plaintiff (“Good

Samaritan obligation”) [§560]
Note that where the defendant clearly owed no duty to aid the plaintiff initially (i.e.,
where the defendant was not responsible for the plaintiff’s predicament and no
special relationship existed between them), if the defendant voluntarily undertakes
to aid the plaintiff, he must do so carefully. That is, the defendant need not act at all,
but if he does, he owes a duty of reasonable care. [Zelenko v. Gimbel Bros., 158
Misc. 904 (1935)] This is often characterized as an affirmative duty, but may also be
thought of as part of a person’s duty to conduct his actions with reasonable care.
Example: D finds a stranger (P) lying unconscious in the street and decides to
take her to a hospital. In doing so, D owes a duty to exercise reasonable care in
moving P and driving to the hospital. If D acts unreasonably, he will be liable for any
injuries attributable to his lack of care.
(1) Effect of abandonment [§561]
The fact that the defendant has undertaken to aid the plaintiff does not
necessarily require the defendant to continue his efforts. However, the condition
in which the defendant may leave the plaintiff without incurring liability varies
among the states.
(a) No worse condition [§562]
In some states, the defendant may terminate his efforts at any time without
liability provided the subsequent abandonment leaves the plaintiff in no
worse condition than that in which the defendant found her. [Miller v.
Arnal Corp., 632 P.2d 987 (Ariz. 1981)]
Example: Same facts as in the above example, except that on the way
to the hospital D decides he does not want to become involved and
abandons P by the side of the road. D will not be liable as long as he has not
thereby placed P in greater peril or deprived P of the chance of aid by
others.
134
(b) No comparable peril [§563]

In some states, the defendant must exercise due care at least to the extent of
not shifting the plaintiff to a position of peril comparable to that from
which she was rescued. [Parvi v. City of Kingston, 41 N.Y.2d 553
(1977); Rest. 2d §324 cmt. g]
(c) No imminent peril of serious harm [§564]
In still other states, a defendant is free to abandon a voluntary rescue effort
unless to do so would leave the person in “imminent peril of serious bodily
harm.” [Rest. 3d-PH §44]
(2) Extension to other voluntary actions [§565]
Some cases have extended this duty to those who have taken some other action
—not attempted rescue—and who are then sued because of a subsequent
accident. [Union Park Memorial Chapel v. Hutt, 670 So. 2d 64 (Fla. 1996)—
funeral director assumed duty of due care to mourners when he voluntarily
organized a funeral procession; but see Tavarez v. Lelakis, 143 F.3d 744 (2d
Cir. 1998)—no duty on D who held ladder while P was cleaning D’s high shelves
where P fell after D had stopped holding the ladder to answer the telephone and
P kept cleaning and fell; D did not leave P worse off than she was in her original
position]
(3) Statutory exception for physicians [§566]
So as not to discourage physicians (who may be concerned about malpractice
liability should the due care standard apply) from assisting others in emergencies,
so-called Good Samaritan statutes have been adopted in virtually all states,
exempting physicians who render aid in an emergency from liability for
negligence. [See Frank B. Mapel & Charles J. Weigel, Good Samaritan Laws—
Who Needs Them?: The Current State of Good Samaritan Protection in the
United States, 21 S. Tex. L.J. 327 (1981)] This statutory exemption extends
even to physicians who render aid in a hospital to patients to whom they owed
no prior duty of care. [Hirpa v. IHC Hospitals, Inc., 948 P.2d 785 (Utah
1997)—extending Good Samaritan protection to physician who assisted in
emergency that occurred in a hospital but for which the physician had no
preexisting duty to lend aid]
4. Affirmative Duty to Prevent Harm [§567]

In addition to the special duties imposed under the specific categories below, courts
increasingly are finding a duty of care owed by defendants who share a special
relationship with the plaintiff to prevent harm, whether or not inflicted by another person.
Such a duty builds on situations in which the defendant may be liable even though an
intervening negligent or intentional act by a third party separates the defendant’s act or
omission from the injury to the plaintiff. (Examples of such relationships are carrier and
passenger, innkeeper and guest, school district and pupil, etc.) [See, e.g., Nova
Southeastern University v. Gross, 758 So. 2d 86 (Fla. 2000)—school sending student
into dangerous neighborhood for clinical placement owes duty of care to student] But not
every relationship suffices. [See Harper v. Herman,
135
supra, §342—captain owes no affirmative duty to warn guest of danger in diving off side
of pleasure boat]
a. Voluntary assumption of care [§568]

The defendant may assume a special duty voluntarily by certain acts that cause the
plaintiff to be more vulnerable to injury from a third person than had the defendant
not acted at all.
Example: Where D, the owner of a building in a high-crime neighborhood, hires
an attendant to watch the lobby, a visitor might reasonably be lulled into a false
sense of security and neglect normal safety precautions. If P is attacked by a third
person while the attendant is inexcusably absent, D may be liable. [Nallan v.
Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980); and see Cross v. Wells Fargo Alarm
Services, 412 N.E.2d 472 (Ill. 1980)—municipal housing authority that provided
part-time security guard service increased danger to tenants during hours when
guards not present]
b. Governmental entities’ duty to protect [§569]

The general rule is that in protective capacities, absent special circumstances, the
government’s duty is owed to the public generally, not to any particular members of
the public, and so recovery is barred. [See Davidson v. City of Westminster, 32
Cal. 3d 197 (1982)—police in stakeout owed no duty to victim hurt before police
closed in; City of Rome v. Jordan, 426 S.E.2d 861 (Ga. 1993)—no duty to protect
P, who had sought police aid because she feared harm from disappointed suitor who
had threatened her; Riss v. City of New York, 22 N.Y.2d 579 (1968)]
(1) Exceptions [§570]
Although the general rule is that governmental entities do not owe an affirmative
duty to protect, courts have imposed a duty under the following circumstances:
(a) Where there is a separate legal basis for arrest of a third person who has
threatened harm [Sorichetti v. City of New York, 65 N.Y.2d 461 (1985)];
(b) Where a statute creates a duty to particular plaintiffs [Busby v.
Municipality of Anchorage, 741 P.2d 230 (Alaska 1987)—statutory
obligation of police to assist persons apparently incapacitated by alcohol];
(c) Where the governmental entity’s promise or conduct induces reliance on
the part of the plaintiff [DeLong v. County of Erie, 89 A.D.2d 376 (1982)
—dispatcher’s promise to send help “right away” enough to constitute an
undertaking and support a duty];
(d) Where the governmental entity has a special relationship with the plaintiff
or the person who injured the plaintiff [Jackson v. City of Kansas
136
City, 947 P.2d 31 (Kan. 1997)—police custody of plaintiff in handcuffs gave

rise to a duty to protect him]; or
(e) Where it is the governmental entity’s action (e.g., high-speed police chase),
rather than inaction, that injured the plaintiff.
(2) Note
Even if a court imposes a duty on the defendant governmental entity, the court
might still withhold liability due to governmental immunity (see infra, §§1222-
1247). This area of the law is particularly confusing because courts often mingle
duty and immunity analyses. Specifically, they sometimes refer to a “public
duty” analysis as a consideration of immunity, or discuss matters of
governmental immunity as part of the duty analysis.
c. Motorists’ duty to prevent harm [§571]

Most courts have found that motorists do not have a duty to drive in such a way as
to prevent injury from the negligence of others. For example, a driver need not
swerve onto the shoulder unless it will assist that driver in avoiding a collision. There
is no duty to help others avoid colliding. [Ratliff v. Schiber Truck Co., 150 F.3d
949 (8th Cir. 1998); and see Monreal v. Tobin, 61 Cal. App. 4th 1337 (1998)]
5. Duty to Perform Promises—Nonfeasance vs. Misfeasance
a. Gratuitous promises [§572]

In general, a defendant’s failure to perform a gratuitous promise to render service
or assistance does not give rise to a basis for tort liability—even if the defendant
knew that the plaintiff would suffer damage as a result of nonperformance. [Thorne
v. Deas, 4 Johns. 84 (1809)]
Example: D voluntarily promises to obtain insurance on P’s building but fails to
do so, and the building is then destroyed by fire. D is not liable in tort to P.
[Brawn v. Lyford, 69 A. 544 (Me. 1907)]
(1) Rationale—distinction between misfeasance and nonfeasance
It is a deep-rooted principle that, absent some legal duty to act, tort liability is
predicated only on misfeasance—not on nonfeasance. Thus, a promisor’s
failure to perform his promise is not by itself a sufficient basis for tort liability.
(But see infra, §1626, imposing liability where the defendant makes a promise
with no intention of fulfilling it.)
(2) Distinguish—duty owed where defendant begins performance [§573]
However, even where the promise is gratuitous, a defendant-promisor who
“enters upon its performance” in any manner must perform with reasonable
care. Failure to do so is “misfeasance,” and is a sufficient basis for tort liability.
137
Example: Although the federal government need not publish aviation charts,
it will be held liable for any injuries caused by inaccuracies in charts it does
publish. [Reminga v. United States, 631 F.2d 449 (6th Cir. 1980)]
(3) Minority view—duty owed based on foreseeable reliance [§574]
A number of cases have held a defendant liable for failing to perform his promise
where he knew or should have known that plaintiff was refraining from
obtaining other necessary assistance in reliance on the promise.
Example: Sheriff D, under no legal obligation to do so, promised to warn P
before X was released from jail, because X had threatened to kill P. D failed
to do so; X killed P, and D was held liable to P’s heirs. [Morgan v. Yuba
County, 230 Cal. App. 2d 938 (1964); Hartley v. Floyd, 512 So. 2d 1022 (Fla.
1987)]
b. Contractual promises [§575]

Generally, the rules for gratuitous promises apply to contractual promises.
(1) Nonfeasance [§576]
Tort liability normally cannot be predicated solely on the defendant’s failure to
perform a contract. Where the defendant simply fails or refuses to begin any
performance under the contract, the plaintiff’s remedy is strictly in contract.
[Louisville & Nashville Railroad v. Spinks, 30 S.E. 968 (Ga. 1898)—carrier
failed to furnish transportation for goods as agreed]
(2) Misfeasance [§577]
On the other hand, a defendant who undertakes performance of a contract owes
a duty of reasonable care; improper performance may constitute both a breach
of contract and an actionable tort, allowing the plaintiff to bring either action.
Example: P hires D to erect a windmill on P’s property. If D never shows
up on the job, he may be liable for breach of contract, but not in tort.
However, once he starts the construction, he must exercise due care; and if, as
the result of improper design or construction, P’s property is damaged or some
other loss ensues, D may be liable either in contract or in tort. [Flint & Walling
Manufacturing Co. v. Beckett, 79 N.E. 503 (Ind. 1906)]
(a) Proof in medical cases [§578]
A plaintiff who alleges that a medical doctor breached a contract to achieve a
certain medical result may find it hard to establish the existence of a contract
promising a particular result. Rationale: Doctors rarely can, in good faith,
promise specific results, and patients
138
have a tendency to transform their doctor’s optimistic statements into firm

promises. [Clevenger v. Haling, 394 N.E.2d 1119 (Mass. 1979)]
(b) Application to other contractual relationships [§579]
Similarly, other relationships, contractual in the first instance, impose a tort
obligation once performance is undertaken—e.g., carrierpassenger;
innkeeper-guest; bailor-bailee.
(3) Liability to third parties [§580]
A defendant’s misfeasance in the performance of a contract with one person
may involve a foreseeable risk of harm to others (e.g., a railroad worker who
throws the wrong switch may cause harm to passengers and others nearby). In
such cases, the defendant’s liability to any third persons injured thereby is judged
on straight negligence standards—foreseeability of harm—and no privity or
contractual relationship need be established. But, again, no tort liability can be
predicated solely on nonfeasance.
(a) Exception—water company cases [§581]
However, most courts have held that a private company that contracts with
a city to furnish water is not liable to a private citizen when the service fails
at a critical moment—e.g., when water pressure drops and a house is
destroyed by fire. [H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y.
160 (1928); but see Weinberg v. Dinger, 524 A.2d 366 (N.J. 1987)—contra
where the loss is uninsured]
1) Judicial rationale
The failure of water service is deemed only “nonfeasance,” on the
theory that the private utility had not undertaken any direct performance
to the private citizen; hence, there is no tort liability.
a) Note
Private citizens cannot recover on a contract theory, because these
courts hold the citizens to be only “incidental beneficiaries” of the
utility’s contract with the city. (See Contracts Summary.)
2) Underlying rationale
Although the above rationale has been criticized for years, the rule is still
generally followed. The explanation may be that virtually all improved
property is insured against loss by fire, so that this suit is really one by a
subrogated fire insurer against a liability insurer. This is thought to be an
administratively wasteful suit, especially because one result might be to
raise the price of water. [Libbey v. Hampton Water Works Co., 389
A.2d 434 (N.H. 1978)]
139
6. Duty Owed by Common Carrier [§582]

Modern authorities treat the duty owed by one legally charged with the care of others as
simply a duty of due care; the fact that a carrier is involved is only one of the
circumstances to be considered in determining whether the duty was breached. [See
Bethel v. New York City Transit Authority, supra, §290] However, older courts
treated the duty of a common carrier as imposing a separate, affirmative standard of
care, demanding the “utmost care consistent with the nature of his undertaking.”
[Gardner v. Boston Elevated Railway, 90 N.E. 534 (Mass. 1910)] In any case,
wherever a person is legally charged with the safety of another (e.g., carrier transporting
passengers) or protecting the property of another (e.g., bailee in possession of bailor’s
chattels), a high amount of care—if not a different standard of care—is clearly called
for. [Acosta v. Southern California Rapid Transit District, 2 Cal. 3d 19 (1970)]
a. “Highest degree of care” [§583]

A common carrier must always choose the course of action least likely to expose its
passengers to harm. [Spalt v. Eaton, 192 A. 576 (N.J. 1937)—bus driver’s use of
force to eject boisterous passenger was negligent because it endangered other
passengers, even though driver was otherwise privileged to use such force; see supra,
§290]
(1) Affirmative duty [§584]
Carrier employees have an affirmative duty to use due care to aid passengers
when they become ill or are attacked by robbers. [Lopez v. Southern
California Rapid Transit District, 40 Cal. 3d 780 (1985)]
(2) Intervening forces [§585]
Courts sometimes impose liability on common carriers notwithstanding
intervening forces that would excuse other defendants (see supra, §499).
(3) Ending the special relationship [§586]
Once a carrier has finished providing services to a passenger, the special
relationship and resulting duty end. [McGettigan v. Bay Area Rapid Transit
District, 57 Cal. App. 4th 1011 (1997)—no duty owed to passenger after he
disembarked from train at last stop, even though he was so inebriated that staff
had to carry him off train]
b. Distinguish—liability of auto driver to “guest” or “passenger” [§587]

The high degree of care owed by a common carrier to its passengers (above) has not
been imposed on the driver of a private automobile with respect to riders therein.
(1) Common law rule [§588]
The driver of an automobile owes any rider therein a duty to exercise reasonable
care to warn of any known dangers or defective conditions that are not
reasonably apparent, and to exercise reasonable care in operating the car.
[Higgins v. Mason, 255 N.Y. 104 (1930)]
140
(a) Rationale
This common law duty developed by analogy to the duty owed by a land
occupier to guests or licensees (see infra, §692).
(2) “Guest statutes” [§589]
A few jurisdictions still have statutes (known as “guest statutes”) that eliminate
ordinary negligence liability of the driver of an automobile to some riders therein.
Guest statutes provide that a driver is liable to a “guest” rider only for “wanton”
or “gross” negligence, or for accidents due to intoxication or willful misconduct.
(a) “Guest” vs. “passenger” [§590]
The most frequent problem in applying these statutes is to determine
whether the injured rider is a “guest” (subject to the statute) or a
“passenger,” as to whom the general common law duty of due care applies
(by analogy to an invitee on land, see infra, §696). [Davis v. Davis, 622 So.
2d 901 (Ala. 1993)] Generally, if there has been some payment (money,
services, or property) that motivates the driver’s furnishing the ride, the rider
is a passenger and may recover for ordinary negligence. [Bozanich v.
Kenney, 3 Cal. 3d 567 (1970)] Note that sharing expenses may be sufficient
by itself to qualify the rider for “passenger” status.
7. Duty to Control Third Persons [§591]

This section considers situations in which the defendant may be held liable for injuries
that were caused by the conduct of third persons over whom the defendant had some
influence or power of control. In many of these scenarios, the plaintiff’s claim is one of
nonfeasance—i.e., where the plaintiff argues that the defendant failed affirmatively to
warn, protect, or rescue the plaintiff from the third person’s conduct. In other scenarios,
the plaintiff’s claim more closely resembles misfeasance—i.e., where the plaintiff’s
claim is that the defendant’s conduct enabled the third person’s conduct or increased the
risk from the third person.
a. Distinguish direct liability from vicarious liability [§592]

If the defendant is present at the time of the third person’s wrongful conduct, his
failure to exercise control to stop the conduct may be an act of negligence on his own
part. However, if the defendant is not present, he may be charged with liability for
the acts of third persons only in limited situations. These latter cases include
imputing the third person’s acts to the defendant, who is said to be vicariously
liable therefor (master-servant cases, etc.; see below).
b. Bailment cases
(1) Liability based on bailor’s negligence [§593]
If the bailor of chattels permits the bailee to use them, the bailor has a right to
control the use and will be liable in two situations for failure to exercise due care
to prevent the intentional or negligent acts of the bailee while using the bailed
chattel:
141
(a) Committed in bailor’s presence [§594]

The bailor will be held directly liable when the bailee’s wrongful conduct is
committed in the bailor’s presence (e.g., D permits X to drive D’s car at an
excessive speed while D rides beside him).
1) Exception—owner-passenger [§595]
In some jurisdictions, the presence of the owner in the car as a
passenger does not necessarily impose a duty to control the driver, but it
may be a factor to consider. [See, e.g., Bauer v. Johnson, 403 N.E.2d
237 (Ill. 1980)]
2) Distinguish—nonowner-passenger [§596]
Generally, automobile passengers owe no duty to the driver or to third
parties to advise the driver in the operation of the vehicle. [Hale v.
Allstate Insurance Co., 639 P.2d 203 (Utah 1981)]
(b) “Negligent entrustment doctrine” [§597]
Even if the tortious act has not been committed in the bailor’s presence, he
will be liable if he has failed to exercise reasonable care in selecting the
bailee; i.e., he knows or should know that the bailee is likely to cause harm
to others. A negligent entrustment claim is a claim of misfeasance because
by providing the instrument of harm, the defendant’s conduct participated in
creating the risk. [Rest. 2d §390]
Example: Entrusting his car to an inexperienced driver, or to a driver
known to be irresponsible or likely to become intoxicated, may make
the bailor liable. [Mitchell v. Churches, 206 P. 6 (Wash. 1922); but see
Suiter v. Epperson, 571 N.W.2d 92 (Neb. 1997)—an auto dealer has no
duty to check whether a prospective buyer has a driver’s license before
permitting a test drive, unless there is some reason to doubt the buyer’s
ability]
Example: Parents have been held liable for negligently entrusting a

vehicle to a child with known reckless propensities [see, e.g., Allen v.
Toledo, 109 Cal. App. 3d 415 (1980)], even where title to the car is in the
child [Kahlenberg v. Goldstein, 431 A.2d 76 (Md. 1981)—parents helped
child buy car]. Note, however, that some states limit negligent entrustment
to cases involving minor children. [See, e.g., Broadwater v. Dorsey, 688
A.2d 436 (Md. 1997)]
Example: An airplane rental company was liable for allowing a legally

qualified pilot who had not completed his “high altitude checkout” to fly
out of a high altitude airport. The defendant knew that the pilot was
inexperienced, and the industry standard was not to rent to such individuals.
[White v. Inbound Aviation, 69 Cal. App. 4th 910 (1999)]
142
Example: A gun seller was found liable when its clerk sold a gun and
ammunition to a drunk customer, helping him fill out the required forms
that the customer was too drunk to complete. [Kitchen v. K-Mart Corp.,
697 So. 2d 1200 (Fla. 1997)]
1) Distinguish—no liability where no right to control [§598]
A few cases have held that where the defendant had no right to control
the instrument of harm, the defendant owed no duty of care in providing
it to the third person.
Example: A service station operator who sells gasoline to a
recognizably intoxicated motorist is not liable for harm caused by
the motorist. Rationale: The service station operator is a seller, not a
bailor; i.e., he has no right to control the use of the gasoline he sells.
[Fuller v. Standard Stations, Inc., 250 Cal. App. 2d 687 (1967)] This
is by no means a universal ruling, however. [See Vince v. Wilson, 561
A.2d 103 (Vt. 1989)—auto seller may be liable for selling car to driver
with known poor driving record, and person providing money for
purchase may also be liable]
a) Stolen property [§599]
Likewise, individuals are generally not liable when their property
(such as a gun) is stolen and then used to commit a crime. [See, e.g.,
McGrane v. Cline, 973 P.2d 1092 (Wash. 1999); but see Estate of
Strever v. Cline, 924 P.2d 666 (Mont. 1996)—imposing a duty
owed to the general public not to leave a loaded gun in an unlocked
truck] States are split over whether thefts due to leaving keys in the
ignition create duties to innocent persons run into by the thieves.
[See Kozicki v. Dragon, 583 N.W.2d 336 (Neb. 1998)—action lies
if thieves more likely to drive negligently than others; Cruz v.
Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996)
—action lies if theft is foreseeable; compare Poskus v. Lombardo’s
of Randolph, Inc., 670 N.E.2d 383 (Mass. 1996)—court retreats
from bar on such actions but concludes that police officer hurt
running after car thief has no action against person who permitted
theft]
(2) Liability where bailor not negligent [§600]
The general rule is that a bailor who has exercised reasonable care in the
selection of the bailee (thus avoiding the “negligent entrustment doctrine”) is not
liable for negligent or intentional harm inflicted by the bailee outside the bailor’s
presence.
143
(a) Exceptions—vicarious liability in automobile cases [§601]

However, there are two exceptions, both involving automobiles, in which the
owner may be held liable for harm inflicted by the bailee without any
showing of negligence on the part of the owner (i.e., even though the
owner was careful in selecting the bailee and was not present at the time of
the bailee’s tortious conduct). In these two cases, the owner is held
vicariously liable for the torts committed by the bailee:
1) “Family purpose doctrine” [§602]
Some jurisdictions by statute or case law hold an automobile owner
liable for injuries resulting from the bailee’s negligent operation of the
vehicle, even outside the owner’s presence, if the bailee is a member of
the owner’s immediate family or household and is driving with the
express or implied permission of the owner. [See, e.g., Nelson v.
Johnson, 599 N.W.2d 246 (N.D. 1999)]
2) “Permissive use statutes” [§603]
Legislation in many states goes even further. So-called permissive use
statutes render the owner of an automobile liable for damages
(sometimes in a limited amount) caused by the negligence of anyone
(not just family members) driving an automobile with the owner’s
express or implied consent. [See, e.g., Cal. Veh. Code §17150]
(3) Distinguish—duties with respect to condition of bailed chattel [§604]
In addition to whatever liability a bailor may have for wrongful conduct by the
bailee in use of the bailed chattel, a bailor also owes certain duties as to the
safety of the bailed chattel itself. Thus, where the bailee was using the chattel
properly, but the chattel itself was defective, the bailor may be liable to third
persons injured thereby (as well as to the bailee). (See detailed discussion infra,
§§925 et seq.)
c. Master-servant cases
(1) Liability based on employer’s own negligence [§605]
If an employee’s torts cannot be imputed to the employer under respondeat
superior (e.g., because outside scope of employment; see below), consider
whether the employer can be held liable on the basis of the employer’s own
negligence. (This, of course, is not vicarious liability.) There are three possible
theories:
(a) Failure to control acts in employer’s presence [§606]
An employer owes an affirmative duty to use due care to control the
conduct of his employees in his presence. Therefore, if an employee’s
tortious acts were committed in the employer’s presence, the employer
144
may be held directly liable for negligence. [Hogle v. H.H. Franklin

Manufacturing Co., 199 N.Y. 388 (1910)]
(b) Negligent hiring of employee [§607]
An employer may be held liable for willful or criminal actions of an
employee if the employer should reasonably have foreseen such tortious
action by the employee, even if the action was outside the scope of the
employee’s job duties. [J. v. Victory Tabernacle Baptist Church, 372
S.E.2d 391 (Va. 1988)]
Example: Hospitals can be negligent for failing to use reasonable care in
keeping facilities safe and in failing to hire (or grant hospital privileges
to) only the most competent physicians. [Welsh v. Bulger, 698 A.2d 581
(Pa. 1997)—hospital negligent for failing to have a qualified surgeon
available during delivery]
(c) Negligent supervision [§608]
If an employer is aware of dangerous behavior by an employee, the
employer will be held to an affirmative duty to supervise the employee with
reasonable care. [Trahan-Laroche v. Lockheed Sanders, Inc., 657 A.2d
417 (N.H. 1995)—truck driver who ran into P, while on D’s property and
under D’s supervision and control, negligently attached his trailer and used
inadequate safety chains]
(2) Doctrine of respondeat superior—vicarious liability [§609]
An employer is vicariously liable for any tortious acts committed by his
employee within the scope of the employment. This fundamental rule of
agency law applies whether the acts were committed in the presence of the
employer or otherwise; i.e., whether or not the employer had the actual ability to
control the employee’s conduct. (See Agency, Partnership & Limited Liability
Companies Summary.)
(a) Crucial requirement—“scope of employment” [§610]
The doctrine of respondeat superior does not apply to torts committed by
the employee outside the scope of employment. Thus, if the defendant’s
employee leaves the place of employment and while pursuing some private
objective injures the plaintiff, the defendant cannot be held liable under
respondeat superior. [See, e.g., Bussard v. Minimed, Inc., 105 Cal. App.
4th 798 (2003)—discussing and refusing to apply the “coming and going
rule,” the general rule that an employee is outside the scope of her
employment when commuting to and from work; Christensen v. Swenson,
874 P.2d 125 (Utah 1994)—holding that reasonable minds could differ
about whether employee who used 15-minute break to drive to pick up
lunch from nearby cafe was acting within scope of her employment]
145
146
1) Application—intentional torts [§611]

Batteries and other intentional torts committed by an employee may be
within the scope of employment if the employee’s duties involve the use
of physical force on others (e.g., bodyguards, bouncers) or force to
further the employer’s interests (e.g., to collect debt due employer).
2) Application—company rules forbidding activity [§612]
An employee’s tortious conduct may be considered within the scope of
employment even if it violates a company rule prohibiting such conduct
(e.g., a company’s rule against driving while intoxicated will not allow it
to escape liability if an employee drives drunk while otherwise within the
scope of her employment).
(b) Employee’s immunity from tort liability immaterial [§613]
The employer may be held liable for torts committed by his employee within
the scope of employment even if the employee is immune!
Example: Where a husband negligently injures his wife while acting in
the scope of his employment, the wife may hold the employer liable for
the husband’s negligence, even if she cannot maintain an action directly
against the husband because of interspousal tort immunity (see infra,
§§1211-1213). [Fields v. Synthetic Ropes, Inc., 215 A.2d 427 (Del. 1965)]
d. Independent contractor cases

(1) Liability based on employer’s own negligence [§614]
An employer may be held directly liable for the torts of an independent
contractor if the employer has failed to exercise due care in selecting a
competent contractor. This is liability imposed for the employer’s own
negligence, and it is immaterial whether there is also a basis for imposing
vicarious liability (see below).
(2) Vicarious liability [§615]
As a general rule, one who employs an independent contractor will not be held
vicariously liable for the negligent conduct of the independent contractor—even
while the independent contractor is acting within the scope
147
of the contract. Rationale: The employer has no right to control the manner in
which an independent contractor performs the contract. (See Agency,
Partnership & Limited Liability Companies Summary.)
(a) Exceptions [§616]
But an increasing number of “exceptions” to this no-liability rule are
recognized:
1) “Apparent” or “ostensible” agency [§617]
The employer will be vicariously liable for conduct by an independent
contractor if:
(i) The principal (employer) by its actions or words manifests that
the independent contractor has authority to act for the principal;
and
(ii) The plaintiff reasonably believes that the independent contractor
was an employee or agent of the principal.
[Rest. 3d of Agency §3.03; and see Roessler v. Novak, 858 So. 2d
1158 (Fla. 2003); Petrovich v. Share Health Plan of Illinois, Inc., 719
N.E.2d 756 (Ill. 1999)]
2) Nondelegable duties [§618]
If the employer’s duty is nondelegable as a matter of law, the employer
cannot avoid liability by hiring an independent contractor to perform.
[Rest. 2d §424]
a) Duty to maintain automobile [§619]
It is generally recognized that an automobile owner is under a duty to
maintain the car in a safe condition. (Frequently this is required by
statute. [See, e.g., Cal. Veh. Code §26453]) Because of the
substantial risk of harm inherent in the operation of automobiles, a
few courts hold this duty to be nondelegable. Thus, e.g., the owner
is liable if his brakes prove defective—even though he had employed
a reputable garage to service his car, and had no independent ability
to do the work himself or to inspect to see that it was done properly!
[Maloney v. Rath, 69 Cal. 2d 442 (1968)]
1/ Note
Most courts, however, have not found the duty to maintain one’s
automobile nondelegable. [See Hackett v. Perron, 402 A.2d 193
(N.H. 1979); Allan E. Korpela, Annotation, Automobiles:
Liability of Owner Property
148
Damage Resulting from Defective Brakes, 40 A.L.R.3d 9
(1971)]
b) Duty to maintain public premises [§620]
The duty to keep premises safe for business visitors has also been
held nondelegable. Hence, D, a shopping center landlord, is
vicariously liable where his independent contractor negligently repairs
leased premises, resulting in injuries to the business invitee of D’s
tenant. [See, e.g., Valenti v. NET Properties Management, Inc.,
710 A.2d 399 (N.H. 1998)]
c) Health care providers [§621]
A health care provider may be held vicariously liable to a client or
patient for negligence by an independent contractor. Rationale: A
patient has no choice in the provider’s selection of a contractor, and
the contractor may be judgment-proof or underinsured. [Marek v.
Professional Health Services, Inc., 432 A.2d 538 (N.J. 1981)—x-
ray film negligently read by contractor; but see Baptist Memorial
Hospital System v. Sampson, 969 S.W.2d 945 (Tex. 1998)—
hospital not vicariously liable for conduct of independent contractor
emergency room physician]
1/ “Captain-of-the-ship” doctrine [§622]
Under the “captain-of-the-ship” doctrine, most states impute the
negligence of nonemployees to surgeons [Ravi v. Coates, 662
So. 2d 218 (Ala. 1995); Rudeck v. Wright, 709 P.2d 621
(Mont. 1985)], although a minority require a showing that the
surgeon was personally negligent [Anglin v. Kleeman, 665 A.2d
747 (N.H. 1995)].
2/ Liability based on health care provider’s own negligence
[§623]
Even a state that rejects vicarious liability on a hospital for the
negligence of an independent contractor may hold the hospital
liable for its own negligence in granting staff privileges to
unqualified persons. [Strubhart v. Perry Memorial Hospital
Trust Authority, 903 P.2d 263 (Okla. 1995)—hospital’s
obligation includes checking before granting privilege in first
place, and also checking after reports of complaints or problems;
but see St. Luke’s Episcopal Hospital v. Agbor, 952 S.W.2d
503 (Tex. 1997)—according to
149
state statute, hospitals have no duty to use due care in
accrediting surgeons]
d) Other nondelegable duties [§624]
Other duties deemed to be nondelegable include the duty to provide
employees with a safe place to work, to refrain from obstructing a
public highway, and to afford lateral support to adjacent land, as well
as the duty of a carrier to transport its passengers carefully and that
of a landlord to maintain common passageways. Thus, an employer
will be vicariously liable for the negligence of an independent
contractor in connection with the performance of any of these
obligations.
3) Dangerous activities—“peculiar risk” doctrine [§625]
If the activity involved is so intrinsically dangerous that the employer
should realize that it involves a peculiar risk of physical harm, the
employer cannot avoid liability by hiring an independent contractor to
perform. Examples of such dangerous activities include blasting, use of
fire to clear land, etc. [Rest. 2d §416]
4) Contractor’s assumption of liability does not overcome exception
[§626]
If the case comes within the nondelegable duty or dangerous activity
exceptions, the fact that the independent contractor has (by contract)
“assumed all risks” in connection with performance does not insulate the
employer from liability to third persons injured by the contractor’s
negligence. But it does give express recognition to the employer’s cause
of action against the contractor for indemnification (see infra, §§1262-
1263). [Van Arsdale v. Hollinger, 68 Cal. 2d 245 (1968)]
(b) Collateral negligence—exception to exception [§627]
An employer who would otherwise be liable under the nondelegable duty or
dangerous activity exceptions may nevertheless escape liability if the
independent contractor’s negligence is considered “collateral” to the special
risk that gives rise to vicarious liability in the first place.
Example: Carelessly dropping a paint bucket from a window while
painting inside a private room with poisonous paint would be collateral
negligence (collateral to the poison hazard).
Compare: Dropping the bucket while painting a sign over a sidewalk

would not be collateral because the very risk that made the duty
nondelegable (danger to the public below) is what occurred.
150
e. Partners and joint venturers [§628]

Persons who engage in a joint enterprise are vicariously liable for the conduct of the
other members within the scope of the enterprise. Rationale: Those engaged in such
an enterprise have an equal right to control its operation, and whether or not all
members in fact exercise such control is immaterial.
(1) Requirements [§629]
A joint enterprise requires: (i) a mutual right to control the management or
operation of the enterprise; and (ii) in some jurisdictions, a common business
purpose in which all persons involved have a mutual interest.
(2) Application—automobile trips [§630]
Courts are split on whether there is a joint enterprise between the owner of an
automobile and a rider when they have embarked on a “share the expenses” trip,
having reached some sort of agreement that they will take turns driving, will
mutually agree on an itinerary, and will split all costs.
(a) Joint enterprise [§631]
Some courts hold this to be a joint enterprise; if there is an accident, an
injured third person can hold liable either of the persons in the car, no matter
who was driving at the time of the accident.
(b) Mere sharing of expenses not enough [§632]
Other states refuse to find a joint enterprise unless a business purpose is
involved (see above). In such jurisdictions, sharing the expenses on vacation
or pleasure trips does not amount to a joint enterprise. [Winslow v.
Hammer, 527 N.W.2d 631 (Neb. 1995)—no joint enterprise without
pecuniary interest and thus husband and wife in van were not in joint
enterprise]
f. Liability of parent for torts of child

(1) Common law rule—no vicarious liability [§633]
Under the general common law rule, parents are not vicariously responsible for
torts committed by their child. The rationale is that parents simply do not have
sufficient control to justify imputing liability where they were not otherwise
negligent.
(a) Statutory changes [§634]
However, the common law rule has been modified by statute in many states
today, so that vicarious liability will be imposed under certain circumstances.
[See, e.g., Cal. Civ. Code §1714.1—making parents liable up to $25,000
(adjusted biennially for cost-of-living) for any “willful misconduct” of child;
Cal. Veh. Code §17708—making parents liable for damages caused by
negligence of child driving a car on public highways with parents’ express or
implied permission]
151
(2) Liability based on parent’s own negligence [§635]

Even if not vicariously liable for a child’s torts (above), a parent—or anyone else
having care or custody of a child—can be held liable for injuries caused by the
child if the parent himself was negligent. In other words, these are cases based
on the parent’s own liability—and not any imputed or vicarious liability. Thus,
the parent may be liable for:
(a) Failing to control the acts of the child committed in the parent’s
presence. [Rest. 2d §316; Richards v. Soucy, 610 A.2d 268 (Me. 1992)—
negligent supervision]
(b) Failing to exercise reasonable care to protect against the child’s known
dangerous tendencies (e.g., allowing child who had previously caused fires
to have access to matches). [Linder v. Bidner, 50 Misc. 2d 320 (1966)]
(c) Failing to warn others with whom the child is likely to come into contact
about the child’s known dangerous tendencies. [Ellis v. D’Angelo, 116 Cal.
App. 2d 310 (1953)—babysitter injured by violent four-yearold]
(d) Failing to prevent child’s foreseeable use of inherently dangerous
instrumentalities (e.g., leaving dynamite caps or loaded firearms in child’s
presence). [Kuhns v. Brugger, 135 A.2d 395 (Pa. 1957)]
(e) Negligent entrustment (see supra, §597).
g. Liability of tavernkeeper
(1) Common law rule—no liability [§636]
At common law, the seller of intoxicating beverages was not liable for injuries
resulting from the purchaser’s intoxication—whether the injuries were sustained
by the purchaser or by another as the result of the purchaser’s subsequent
conduct. [Quinnett v. Newman, 568 A.2d 786 (Conn. 1990)]
(2) Statutory undermining of common law rule—“Dram Shop Acts” [§637]
To alter the common law rule, many states have passed “Dram Shop Acts.”
[See, e.g., Minn. Stat. Ann. §340A.801] These statutes create a cause of action
against the tavernkeeper in favor of third parties injured by an intoxicated
patron.
(a) Nature of tavernkeeper’s fault [§638]
Some of these statutes allow recovery only if the tavernkeeper had prior
notice of a danger in selling to such a patron.
(b) Recovery limited to injured third person [§639]
Recovery under the statutes is generally limited to injured third parties. Only
a few statutes allow the intoxicated patron to recover for his
152
own injuries, but many allow the intoxicated person’s spouse to recover for
loss of support resulting from injuries to or death of the intoxicated person.
[Kiriluk v. Cohn, 148 N.E.2d 607 (Ill. 1958)—allowing patron’s widow to
recover for the loss of his support, even where she had killed him, the killing
being in self-defense against his drunken rage]
(c) Who can be held liable? [§640]
Most statutes are restricted to commercial establishments—i.e., those in
the business of furnishing liquor (taverns or liquor stores).
(d) Defenses [§641]
Some jurisdictions do not recognize contributory negligence, comparative
negligence, or assumption of risk defenses in a dram shop action. (These
defenses will be discussed infra.) [See, e.g., Feuerherm v. Ertelt, 286
N.W.2d 509 (N.D. 1979)]
(3) Judicial rejection of common law rule [§642]
A growing number of courts have reevaluated the common law rule and have
imposed liability on tavernkeepers for injuries inflicted by their intoxicated
patrons on others, even without a “Dram Shop Act.” [See, e.g., Nazareno v.
Urie, 638 P.2d 671 (Alaska 1981); Vesely v. Sager, 5 Cal. 3d 153 (1971)] But
note: California’s legislature rejected Vesely and declared that the act of the
intoxicated person was the proximate cause of harm except in situations
involving minors. [Cal. Bus. & Prof. Code §25602]
(a) Rationale—common law negligence [§643]
From a duty standpoint, the question is whether the risk to third persons was
reasonably foreseeable and, if so, whether any policy factors suggest
rejecting a duty. Breach depends, of course, on what knowledge the
bartender had or should have had as to the patron’s propensities, how
intoxicated the patron appeared to be, etc. From a proximate cause
standpoint, the intoxicated patron’s negligent acts must be held foreseeable,
and thus do not bar the tavernkeeper’s liability. Indeed, the likelihood that
the patron may inflict such injuries is the very hazard that makes the
tavernkeeper negligent in the first place! [Rappaport v. Nichols, 156 A.2d
1 (N.J. 1959); Rest. 2d §449]
(b) Possible “negligence per se” [§644]
If it appears that the patron was already intoxicated, the furnishing of the
liquor is generally made a crime by statute—and negligence per se may exist
(see supra, §§396 et seq.)—because such statutes are designed to protect
the public from this kind of harm.
(c) Scope of liability
153
1) Recovery by intoxicated patron for his own injury? [§645]

So far, most courts following this view have allowed recovery only for
injuries sustained by third parties. [See, e.g., Kindt v. Kauffman, 57
Cal. App. 3d 845 (1976)] However, a few courts permit recovery by the
intoxicated patron for his own injuries. [See, e.g., Soronen v. Olde
Milford Inn, Inc., 218 A.2d 630 (N.J. 1966); but see Wright v.
Moffitt, 437 A.2d 554 (Del. 1981)—contra]
2) Recovery against social host? [§646]
Also, virtually all courts have allowed recovery only against commercial
dispensers of alcoholic beverages, rejecting liability on a private
individual who serves liquor to an obviously intoxicated guest. [See, e.g.,
Klein v. Raysinger, 448 A.2d 620 (Pa. 1982)]
a) Exception—intoxicated minors [§647]
However, several courts have imposed liability against a social host
for furnishing liquor to a minor who became intoxicated and later
caused injury to another in a traffic accident—at least where it is
shown that the host knew that the minor would be driving a car after
consuming the liquor. [See, e.g., Brockett v. Kitchen Boyd Motor
Co., 24 Cal. App. 3d 87 (1972); Cal. Bus. & Prof. Code §25602.1;
but see Slicer v. Quigley, 429 A.2d 855 (Conn. 1980)—passenger
in car not liable for giving beer to 19-year-old driver, in violation of
statute, because driver’s voluntary consumption of the beer was
proximate and superseding cause of accident; Charles v. Seigfried,
651 N.E.2d 154 (Ill. 1995)—denying action against social host who
served alcohol to minor who then hurt herself]
b) New exception—adults [§648]
A few courts have extended liability to social hosts whose intoxicated
adult guests have injured the plaintiff. [See, e.g., Kelly v. Gwinnell,
476 A.2d 1219 (N.J. 1984); but see Ferreira v. Strack, 652 A.2d
965 (R.I. 1995)—contra] But note: A New Jersey statute has
substantially limited the Kelly case. [N.J. Stat. Ann. §§2A:15-5.1 et
seq.]
(4) Distinguish—liability of tavernkeeper as land occupier [§649]
Even in states that have retained the common law rule of no liability, a
tavernkeeper may be held liable if she fails to exercise the duties required of her
as a land occupier to business visitors on the premises (see infra, §704). Thus,
if the tavernkeeper knows that one patron may become belligerent and
dangerous if drunk, she must exercise due care to prevent that
154
person from injuring the person or property of other patrons on the premises,
or at least warn them of the danger. [Priewe v. Bartz, 83 N.W.2d 116 (Minn.
1957)]
8. Duties Owed by Land Occupiers [§650]
The common law rule, and still the weight of authority, is that the general duty of due
care under the circumstances does not apply to occupiers of land. Rather, land occupiers
are accorded a special status that limits their liability for injuries to others arising from
conditions or activities on their land. In short, land occupiers in most states do not have
to conduct themselves as “reasonable persons under the circumstances”; it is sufficient
that they comply with the limited duties and standards of care discussed below. (But see
the alternative view infra, §718.)
155
a. “Land occupier” defined [§651]

“Land occupier” refers to the person in possession of the land, whether the owner,
tenant, adverse possessor, or any other type of possessor. [Merritt v. Nickelson,
287 N.W.2d 178 (Mich. 1980)]
b. “Foreseeable risk” defined [§652]

The “foreseeability” element in all the cases below is a risk of harm to either person
or property interests, with the same proximate cause complexities as discussed
previously where the risk foreseeable was to one type of interest (person or property)
and the actual harm sustained was to the other type.
c. Duties owed to persons outside the land

(1) Natural conditions [§653]
No duty of care is owed with respect to natural conditions, such as native trees
or boulders in place, in rural areas. [Rest. 2d §363]
(a) Exception—urban areas [§654]
A land occupier in an urban area owes a duty of due care to prevent native
trees growing on her land from creating an unreasonable risk of harm to
travelers on adjacent public streets. [But see Meyers v. Delaney, 529
N.W.2d 288 (Iowa 1995)—no liability to neighbor for fall of decayed tree
without actual or constructive notice of danger]
A large minority of states hold that in both rural and urban areas, the
occupier owes a duty of care to protect those outside the land from natural
conditions on the land. [Sprecher v. Adamson Cos., 30 Cal. 3d 358
(1981)]
(2) Artificial conditions [§656]
No duty is owed as to artificial conditions (buildings, excavations, fences erected,
etc.) beyond what is owed for natural conditions.
(a) Exception—conditions dangerous to adjacent occupiers [§657]
If portions of any building, fence, etc., protrude onto or abut adjacent land,
there is a duty to exercise due care to inspect and maintain the structures.
[Rest. 2d §370]
(b) Exception—conditions dangerous to users of adjacent public road
[§658]
If the conditions “substantially adjoin” a public road, there is a duty to
exercise due care to protect users of the road from harm; this may involve a
duty to erect and maintain fences, prune plantings, etc. [Rest. 2d §368]
(3) Activities on land [§659]
A land occupier owes a duty not to engage in any activities (business or any
156
other use to which land is put) that a reasonable person would foresee as
involving an unreasonable risk of harm to persons or property outside the land.
Hence, a land occupier owes the same duty of due care as if she were
conducting her activities in some neutral place. [Baisley v. Missisquoi
Cemetery Association, 708 A.2d 924 (Vt. 1998)]
d. Duties owed to persons coming onto the land

(1) Ordinary trespassers
(a) “Ordinary trespassers” defined [§660]
An “ordinary trespasser” is anyone coming onto the land without the express
or implied permission of the land occupier or without a legal privilege.
[Blakely v. Camp Ondessonk, 38 F.3d 325 (7th Cir. 1994)] (But note:
“Child trespassers” are given greater protection; see infra, §§674-688.)
(b) Duties owed to ordinary trespassers
1) Presence unknown [§661]
There is no duty of reasonable care owed to a trespasser whose
presence on the land is unknown, nor is there a duty to discover the
presence of trespassers. This is true with respect to both natural and
artificial conditions, and all activities on the land. [See, e.g., Amblo’s
Administratrix v. Vermont Associated Petroleum Corp., 144 A. 460
(Vt. 1929)] There does, however, exist a duty not to intentionally or
wantonly cause injury. [Micromanolis v. The Woods School, Inc.,
989 F.2d 696 (3d Cir. 1993)]
2) Presence known [§662]
However, if the land occupier knows—or from known facts should
reasonably realize—that there is a trespasser on the land, the land
occupier is under a duty to exercise reasonable care (i) to warn the
trespasser of, or make safe, artificial conditions that involve a risk of
death or serious bodily harm and that the trespasser is unlikely to
discover (e.g., a concealed pit), and (ii) in carrying on all activities that
involve any risk of harm. [Rest. 2d §§333, 336-338]
a) Duty to aid trespasser in peril [§663]
In addition, should a land occupier discover a trespasser trapped or
injured and helpless on the occupier’s land, the occupier has an
affirmative duty to use reasonable efforts to aid the trespasser.
b) Same duty as that owed to licensees [§664]
Many jurisdictions impose on land occupiers the same duty
157
to known trespassers as they owe to licensees—i.e., a duty to

exercise reasonable care to warn licensees of, or make safe, natural
or artificial conditions, and in carrying on any activities, involving
any risk of harm known to the land occupier and not obvious to the
reasonable entrant, including threats of harm by third persons
already on the land.
3) Minority view—foreseeable trespassers [§665]
A small, but growing minority of jurisdictions are beginning to treat
foreseeable trespassers as if they were “known trespassers.”
(2) Constant trespassers upon a limited area (“CTULA”)
(a) “CTULA” defined [§666]
CTULA refers to persons habitually intruding upon the land or a certain
portion of the land—e.g., those who cut across a portion of the land
occupier’s fields as a shortcut to town. [Louisville & Nashville Railroad v.
Spoonamore’s Administrator, 129 S.W.2d 175 (Ky. 1939)]
1) Knowledge of land occupier [§667]
The land occupier must be shown to know (or have reason to know)
that persons are in the habit of cutting across her fields, etc. Physical
evidence on the land (“the beaten path”) will usually be sufficient to
charge the land occupier with knowledge.
2) Prevention of CTULAs [§668]
The land occupier may prevent intruders from obtaining CTULA status
by acts showing that she objects to the intrusion. Thus, if the land
occupier posts “No Trespassing” signs on the area in which the intrusion
occurs, this may be sufficient to convert persons who would otherwise
qualify as CTULAs into ordinary trespassers (to whom a lower standard
of care applies; see above), unless the intrusions still continue, and the
land occupier knows this but fails to do anything further about it.
(b) Duties owed to CTULAs [§669]
A CTULA is afforded a higher duty of care than an “ordinary trespasser” on
the theory that if the land occupier knows that persons are in the habit of
trespassing on a section of her land and does nothing about it, their presence
is at least tolerated; i.e., the land occupier has given a type of implied
consent to their presence.
1) Duty to discover [§670]
The land occupier owes a duty to discover whether or not CTULAs as a
class are intruding.
158
2) Activities and artificial conditions within scope of duty [§671]

If charged with knowledge that CTULAs are intruding, the land occupier
owes a duty to exercise reasonable care (i) to warn them of, or make
safe, artificial conditions that involve a risk of death or serious bodily
harm and that they are unlikely to discover, and (ii) in carrying on all
activities that involve a risk of death or serious bodily harm. [Rest. 2d
§§334, 335]
3) No duty regarding other conditions and activities [§672]
With respect to natural conditions involving any risk of harm, and
artificial conditions and activities threatening less than death or serious
bodily injury, there is no duty owed.
4) Same duty as that owed to licensees [§673]
A growing minority of jurisdictions impose on land occupiers the same
duty to CTULAs as they owe to licensees—i.e., a duty to exercise
reasonable care to warn licensees of, or make safe, natural or artificial
conditions, and in carrying on any activities, involving any risk of harm
known to the land occupier and not obvious to the reasonable entrant,
including threats of harm by third persons already on the land.
(3) Child trespassers—“attractive nuisance doctrine” [§674]
The “attractive nuisance doctrine” imposes a special duty of care on a land
occupier with respect to conditions on the land that involve a risk of harm to
children unable to recognize the danger involved. [McKiddy v. Des Moines
Electric Co., 206 N.W. 815 (Iowa 1926); Rest. 2d §339]
(a) Rationale
Society has a greater interest in the safety of children than in a land
occupier’s right to do as she pleases with her land.
A few courts still reject the attractive nuisance doctrine. A few others apply
the doctrine only to a hazard that has attracted the child onto the land.
[Johnson v. Bathey, 376 So. 2d 848 (Fla. 1979); Logan v. Old Enterprise
Farms, Ltd., 564 N.E.2d 778 (Ill. 1990)]
(c) “Child trespasser” defined [§676]
To be a “child trespasser,” the child must be so immature as to be unable
to recognize the danger involved. In practice, beyond age 14, there are
fewer conditions for which there can be recovery; and at some point
(probably beyond age 16) the “child trespasser” doctrine no longer applies.
[O’Keefe v. South End Rowing Club, 64 Cal. 2d 729 (1966)]
(d) Duties owed to child trespassers
159
1) No obligation to discover [§677]

A land occupier does not owe a duty to exercise due care to discover
trespassing children on her property.
2) Artificial conditions within scope of duty [§678]
If a land occupier discovers children trespassing, or is charged with such
knowledge, she then owes a duty to exercise due care to warn or
protect them from artificial conditions involving a risk of death or
serious bodily harm to children, provided [Rest. 2d §339]:
a) Foreseeability of trespass [§679]
The place where the condition is maintained is one where children
are known or likely to trespass; and
b) Foreseeability of harm [§680]
The land occupier knows, or has reason to know, of the existence of
the artificial condition on the land, and realizes (or should realize)
that it involves an unreasonable risk of death or serious bodily harm
to such children; and
c) Risk outweighs utility of condition [§681]
The utility to the possessor of maintaining the condition and the
burden of eliminating the danger are less than the risk to children;
and
d) Child unaware of danger [§682]
The condition is such that children, because of their youth, will not
discover it or will not realize the danger involved. In other words,
the condition or device that causes the injury must be unfamiliar to
children of similar age—i.e., “in the nature of a trap” for such
children. [Reynolds v. Willson, 51 Cal. 2d 94 (1958)] This is
usually the central dispute in litigation. [Merrill v. Central Maine
Power Co., 628 A.2d 1062 (Me. 1993)—nine-year-old trying to
cook eel on D’s live wire understood the risk]
3) Activities [§683]
A land occupier’s duty owed to a child trespasser regarding activities on
the land depends on the child’s status as an undiscovered
160
trespasser (no duty; see supra, §661), discovered trespasser (duty of

reasonable care as to activities involving any risk of harm; see supra,
§662), or CTULA (duty of reasonable care as to activities involving a
risk of death or serious bodily harm; see supra, §671). [Rest. 2d §339
cmt. a]
4) Application [§684]
Using the foregoing yardstick, unattended vehicles, machinery,
explosives, etc., have been held to qualify as “attractive nuisances.”
a) Distinguish—“ordinary risks” [§685]
On the other hand, ordinary risks involved in fire, bodies of water, or
falling from a height or onto an excavation or sandpile are known to
young children and therefore ordinarily do not qualify. [Holland v.
Baltimore & Ohio Railroad, 431 A.2d 597 (D.C. 1981)—moving
train is a known risk to a nine-year-old child]
1/ But note
Even a body of water may become an attractive nuisance if
some other dangerous condition is involved—e.g., concealed
high-suction drain at bottom of pond, or swimming pool
maintained at deceptively low water level. [Reynolds v.
Willson, supra]
b) Removal of hazardous object [§686]
Some states extend the doctrine to any harm that results when a
trespassing child carries a hazardous object away from a land
occupier’s property. [See, e.g., Christians v. Homestake
Enterprises, Ltd., 303 N.W.2d 608 (Wis. 1981)—blasting cap taken
by child from defendant’s premises later explodes]
5) Distinguish—no similar duty regarding natural conditions [§687]
A land occupier owes the above duty with respect to highly dangerous
artificial conditions. No such duty is owed with respect to natural
conditions. [Loney v. McPhillips, 521 P.2d 340 (Or. 1974)—no duty to
13-year-old who drowned in dangerous ocean cove; but see Rest. 2d
§339—questions this limitation]
(e) Child trespasser doctrine as defense to trespass [§688]
The child trespasser doctrine has also been extended by a few courts to bar
any action by a land occupier against the children (or their parents, where
they would otherwise be liable) for damages the children cause to the
property. [Aetna Insurance Co. v. Stringham, 440 F.2d 103 (6th Cir.
1971)—children attracted onto P’s land to play in empty
161
barn toyed with matches and burned down barn] (Compare the
extraordinary liability of adult trespassers, supra, §203, for harm done
during the trespass.)
(4) Licensees
(a) “Licensee” defined [§689]
A “licensee” is a person coming onto the land, with the express or implied
permission of the land occupier, for the entrant’s own purposes, conferring
no particular benefit on the land occupier or on any use to which the land
occupier is putting the land. [Barmore v. Elmore, 403 N.E.2d 1355 (Ill.
1980); Carter v. Kinney, 896 S.W.2d 926 (Mo. 1995); Rest. 2d §330]
1) Illustration—persons held to be “licensees” [§690]
Licensees generally include social guests and visiting relatives. [Hall v.
Duke, 513 S.W.2d 776 (Tenn. 1974)] It also covers business visitors
(infra, §700) or privileged entrants (infra, §703) who have strayed from
that part of the premises to which they were invited or authorized to
enter, door-to-door salespersons (unless the property is posted
otherwise), and process servers. [Prentiss v. Evergreen Presbyterian
Church, 644 So. 2d 475 (Ala. 1994)—member of local chorus allowed
to use church for its rehearsals is licensee of church; Young v. Paxton,
873 S.W.2d 546 (Ark. 1994)—son-in-law hurt trimming trees during
social visit is licensee]
2) “Permission to enter” broadly interpreted [§691]
The courts construe “implied permission” broadly and thus accord
licensee status to many who would otherwise be outright trespassers.
Example: Persons who solicit money for charity, who come to
borrow tools, or who come on personal business dealings with
employees of the land occupier (e.g., child bringing lunch to his father)
are all held to enter with at least the implied permission of the land
occupier.
(b) Duties owed to licensees [§692]
A land occupier owes a duty to exercise reasonable care to warn licensees
of, or make safe, natural or artificial conditions, and in carrying on
activities, involving any risk of harm known to the land occupier and not
obvious to a reasonable person coming onto the land—including threats of
harm by third persons already on the land. [Rest. 2d §§341, 342; and see
Indianapolis Street Railway v. Dawson, 68 N.E. 909 (Ind. 1903)—where
D invited P onto his premises, knowing that X was already there and that X
intended to attack P, D owed duty to warn P of danger]
162
1) No duty to discover danger [§693]

Note that a land occupier is under no duty with respect to dangerous
conditions or activities of which she is not actually aware. Nor is the
land occupier under a duty to inspect the land to discover such
dangers. [Rest. 2d §342 cmt. d]
2) Warning usually sufficient [§694]
A land occupier may effectively discharge the duty to licensees by
posting signs, etc., warning of the danger, unless she knows such signs to
be ineffective.
3) Knowledge of licensee’s presence [§695]
Although a land occupier owes no duty to discover licensees generally,
she must conduct her activities as though some licensees may have
accepted the occupier’s permission and entered the premises; i.e., the
defendant’s lack of knowledge that a particular licensee was actually
present is no defense, as the defendant must use reasonable care in the
exercise of all activities.
(5) Invitees
(a) “Invitee” defined [§696]
An invitee is a person who enters by the express or implied invitation of the
land occupier for some purpose related to the activities or interests of the
land occupier. An invitee may be either a “public invitee” or a “business
visitor,” and sometimes is both. [Rest. 2d §332]
1) “Public invitee” [§697]
A “public invitee” is a person who is “invited” to enter or remain upon
land as a member of the public for a purpose for which the land is held
open to the public. [Dowd v. Portsmouth Hospital, 193 A.2d 788
(N.H. 1963)]
a) “Invitation” defined [§698]
A personal and express invitation is not required. The fact that the
property is held open to the public suffices. A person who is on the
land pursuant to some legal privilege, however (e.g., police on land
under warrant, firefighter, etc.), is not an invitee (see infra, §§711-
716).
b) Premises need not be public [§699]
Note that the premises involved may be either public or private: A
person entering a public library (public premises) to borrow a book is
an invitee, as is a person entering a drugstore (private premises) to
use the public telephone. [See,
163
e.g., Clark v. Moore Memorial United Methodist Church, 538

So. 2d 760 (Miss. 1989)—parishioner who slips and falls while
leaving Sunday School class is a public invitee]
2) Business invitee [§700]
A business invitee is one who enters upon the premises of another for a
purpose connected with the business conducted on the land, or where
it can reasonably be said that the visit may confer a business,
commercial, monetary, or other tangible benefit to the landowner.
[Peterson v. Romine, 960 P.2d 1266 (Idaho 1998)]
a) Illustration—who is a “business invitee” [§701]
The term “business invitee” generally covers store customers, as
well as any person entering premises held open for admission (free
or paid) to the general public—e.g., theatres, hotels, airports, etc.
[Dickau v. Rafala, 104 A.2d 214 (Conn. 1954)] It also covers
workers, garbage collectors, etc., who come onto the land to further
the use to which the land occupier is putting the premises—as well
as building inspectors and similar persons, who are concerned with
regulating the use. [Holzheimer v. Johannesen, 871 P.2d 814
(Idaho 1994)—fact question whether farmer borrowing boxes or
buying them at cost was business visitor or licensee obtaining a favor
from neighbor]
b) Immaterial that business dealings fail to materialize [§702]
The entrant need only have a reasonable belief that he is going onto
the land for the purpose of business dealings with the land occupier.
Even if it turns out that no such business dealings are possible, he
will still qualify as an invitee. [Chatkin v. Talarski, 193 A. 611
(Conn. 1937)—P came into D’s mortuary to inquire about engaging
D’s services for a friend; it later turned out the friend was alive, but
P still qualified as a business visitor in the mortuary]
3) Caution—change of status [§703]
An invitee retains the status of an invitee only when he is on that part
of the premises that he was invited to enter. If he wanders elsewhere,
he becomes a licensee or perhaps even a trespasser (e.g., when a store
customer enters area marked “employees only”).
Example: When P exceeded the scope of a limited invitation by not
complying with D’s request that P notify D as
164
to when P was coming to D’s home, P became a trespasser when he

came onto D’s land without notice. [Buzzell v. Jones, 556 A.2d 106
(Vt. 1989)]
(b) Duties owed to invitees [§704]
A land occupier owes invitees a duty to use reasonable care to inspect and
discover the presence of any dangerous natural or artificial conditions or
activities and to exercise due care to warn invitees of such dangers or make
the conditions or activities safe. [Rest. 2d §§341A, 343; but see Fleming v.
Arrington, 610 So. 2d 1160 (Ala. 1992)—no need to warn where invitee
saw ants four hours before they attacked her]
1) Warning enough? [§705]
Traditionally, a warning will satisfy the duty owed. However, a modern
trend requires the land occupier to actually make the premises safe
where, under the particular facts, a warning would not render the
condition or activity reasonably free from danger; i.e., in some cases a
mere warning will not suffice. [Tharp v. Bunge Corp., 641 So. 2d 20
(Miss. 1994)—step down from building to sloping ground below was
more than 30 inches, enough to be dangerous even though visible to
invitee-inspector who had to maneuver down the step; Wilk v. Georges,
514 P.2d 877 (Or. 1973)—garden nursery operator held liable when
customer slipped and fell on wet plank despite posted sign stating that
area was slippery where operator had covered some planks with asphalt
material but not others]
a) Condition must present sufficient danger [§706]
No warning at all is needed if the condition is not one that presents
sufficient danger. [Howe v. Stubbs, 570 A.2d 1203 (Me. 1990)—no
need to warn invitee of danger that car might crash into shop located
on a “T” intersection at the foot of the hill where this had happened
only three times in 25 years]
2) Safeguarding activities of third persons [§707]
A land occupier may be required to exercise reasonable care to warn or
protect invitees from foreseeable tortious or criminal acts of third
persons.
Example: Those holding their premises open to the public for
commercial purposes are charged with a duty to use due care to
protect their customers—as well as licensees (see supra, §692)—from
foreseeable injuries at the hands of third persons. [Taco Bell, Inc. v.
Lannon, 744 P.2d 43 (Colo. 1987)—restaurant
165
in high crime area has duty to take reasonable measures to protect

patrons from consequences of armed robbery by third parties; Delta Tau
Delta v. Johnson, 712 N.E.2d 968 (Ind. 1999)—fraternity owed female
party guest a duty to take reasonable care to protect her from a
foreseeable sexual assault; but see Williams v. Cunningham Drug
Stores, Inc., 418 N.W.2d 381 (Mich. 1988)—merchant in high crime
area has no duty to provide armed, visible security guards to protect
customers from armed robbery by third parties]
a) Role of foreseeability [§708]
In an effort to limit the liability of land occupiers for thirdparty
crime, many courts have adopted narrow definitions of
“foreseeability.” In some jurisdictions, a land occupier owes a duty
to protect patrons only if “he is aware of specific, imminent harm
about to befall them.” In others, a duty exists only in light of
“evidence of previous crimes on or near the premises.” In still
others, the owner owes a duty to protect customers against any harm
that is foreseeable under a “totality of the circumstances.” [Posecai
v. Wal-Mart Stores, Inc., 752 So. 2d 762 (La. 1999)—P was
mugged in D’s parking lot and sued D for negligently failing to have
a security guard posted outside the store; court held no duty because
crime was not foreseeable]
b) Specific no-duty rules [§709]
In a further effort to limit the liability of business owners for third-
party crime, some courts have adopted specific no-duty rules. Thus,
a business may have no duty to comply with the demands of a thief
who threatens harm to the business’s patrons if his demands are not
met. [Kentucky Fried Chicken v. Superior Court, 14 Cal. 4th 814
(1997)]
3) Safeguarding chattels [§710]
A land occupier who undertakes to supply equipment, tools, or other
chattels to persons coming onto the premises for business purposes
owes a duty to exercise due care to inspect and discover any defective
condition in the chattels that she supplies. [The Student, 243 F. 807 (4th
Cir. 1917)—D liable for furnishing unsafe scaffolding to workers on the
premises]
(6) Public entrants
(a) “Public entrants” defined [§711]
“Public entrants” refers to any public employee entering land under a
privilege recognized by law and irrespective of any express or implied
166
consent from the land occupier—i.e., someone whose entry the land
occupier has no right to prevent.
Examples: Firefighters, police officers, sanitation inspectors, postal
workers, meter readers, tax assessors, etc., are all public entrants—as
long as they are acting in the scope of their official duties.
1) Distinguish—private entrants [§712]
Any “private person” entering under one of the recognized entry
privileges—e.g., to recapture chattels, etc. (supra, §238)—is treated as a
licensee. [Rest. 2d §345(1)]
(b) Duties owed to public entrants [§713]
The duty owed to public entrants depends on the purpose of their entry.
1) Business purpose [§714]
If a public entrant enters for some purpose involving business dealings
with the land occupier (e.g., postal workers, garbage collectors, meter
readers, sanitation inspectors, tax assessors, etc.), the public entrant is
owed the same duties as invitees. [Rest. 2d §345 cmt. c]
2) Nonbusiness purpose but privileged entry [§715]
If the public entrant’s entry is not for a business visit with the land
occupier, but under some other privilege afforded by law (e.g., entry by
police to chase a burglar), most courts hold that the public entrant is
entitled only to the status of a licensee. [Rest. 2d §345 cmt. c] A few
consider the entrant an invitee. [Dini v. Naiditch, 170 N.E.2d 881 (Ill.
1960)]
a) Distinguish—entry on business premises [§716]
Keep in mind, however, that if the entry is on business premises
(held open to the public) during normal business hours, the entrant
would be treated as an invitee—the same as any other member of
the public. [Meiers v. Fred Koch Brewery, 229 N.Y. 10 (1920)—
police officer entering store during business hours to make routine
investigation]
(7) Recreational land users [§717]
Virtually every state has enacted legislation that protects owners of land against
lawsuits brought by persons who have been using the land for recreational
purposes, unless the owner has engaged in willful or wanton conduct. [See, e.g.,
Cal. Civ. Code §846; Ornelas v. Randolph, 4 Cal. 4th 1095 (1993)]
167
168
e. Alternative view—duty of land occupiers determined by reasonable person

standard [§718]
About half the jurisdictions today reject all or most of the common law rules
discussed above and hold that a land occupier’s duty does not depend entirely on the
entrant’s status (e.g., trespasser, licensee, invitee). Rather, the test is whether the
occupier has acted as a reasonable person in the management of her property in
view of the likelihood of injury to others (i.e., the general duty of due care under
the circumstances). [See, e.g., Rowland v. Christian, 69 Cal. 2d 108 (1968); Jones
v. Hansen, 867 P.2d 303 (Kan. 1994); but see Carter v. Kinney, supra, §689—
adhering to traditional categories]
(1) Rationale
Under modern law, human safety is at least as important as a land occupier’s
right to act as she chooses on her land. Consequently, there is no longer any
reason to immunize landowners from general negligence liability. [Smith v.
Arbaugh’s Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972); but see Musch v.
H-D Electric Cooperative, Inc., 460 N.W.2d 149 (S.D. 1990); Younce v.
Ferguson, 724 P.2d 991 (Wash. 1986)—adhering to traditional analysis]
(2) Analysis—plaintiff’s status only one of the “circumstances” [§719]
Under this view, the status of the plaintiff (as trespasser, licensee, invitee, etc.)
may be considered, but it is no longer conclusive on the scope of duty owed by
the defendant land occupier. Rather, the defendant’s duty depends on all the
pertinent circumstances, including—in addition to the plaintiff’s status—the
foreseeability of harm, the relation between the defendant’s conduct and the
plaintiff’s injury, the moral blameworthiness attached to the defendant’s conduct,
the availability of insurance, and the like. [Pagelsdorf v. Safeco Insurance Co.,
284 N.W.2d 55 (Wis. 1979)]
(3) Note—split over trespassers [§720]
About 12 of the states that have rejected the common law status-based duties in
favor of the duty of due care under the circumstances, have done so only with
respect to licensees and invitees and have retained the common law duty rules
with respect to trespassers (see supra, §§660 et seq.). [See, e.g., Sheets v. Ritt,
Ritt & Ritt, Inc., 581 N.W.2d 602 (Iowa 1998)—adopting limited approach
after categorizing state positions; O’Leary v. Coenen, 251 N.W.2d 746 (N.D.
1977)]
f. Open and obvious dangers [§721]

Some courts hold that a land occupier owes no duty to protect against dangers that
are open and obvious to visitors (e.g., an obviously ice-covered sidewalk). Other
courts reject this rule, considering instead whether the risk was great enough that the
land occupier had a duty to mitigate the risk (rather than merely warning about it) or
that the entrant was comparatively negligent. [Tharp v. Bunge Corp., supra, §705]
The Second Restatement is consistent with the latter approach, stating that an
occupier does not owe a duty to warn of an obvious
169
danger (because any warning of an obvious danger is superfluous) unless the

occupier should foresee harm despite the obviousness of the danger. [Rest. 2d
§343A(1)]
9. Duties Owed by Entrants on Another’s Land [§722]

The issue here is whether an invitee or licensee can “stand in the shoes of the land
occupier” with respect to duties owed to other persons coming onto the land.
Example: D, a postal worker who is delivering a parcel to O (the land occupier) on
O’s premises (D thus being an invitee), negligently backs up his truck while on the
land and injures P, a trespasser whose presence is not known to anyone. Is D held to the
general standard of due care under the circumstances, or can he claim the restricted duty
that O might assert if the trespasser were injured through O’s negligence?
a. Prevailing view—general duty of due care applies [§723]

Although there is authority to the contrary, most courts hold that those not in
possession of the land are not entitled to the advantage of the occupier’s limited duty
—even if the entrants have entered with the occupier’s consent. The rationale is that
the special policy considerations given to possessors of land do not extend to persons
on the land of others. [Musch v. H-D Electric Cooperative, Inc., supra; but see
Robbins v. Minute Tapioca Co., 128 N.E. 417 (Mass. 1920)—contra]
b. Restatement view—middle position [§724]

The Second Restatement provides that those on the land working for the occupier, or
acting under the occupier’s orders, need only meet whatever limited duty the
occupier has; but others, although legally on the land, are not entitled to such
protection (i.e., they are subject to the general standard of due care). [Rest. 2d
§§383-387]
10. Duties Owed by Lessors of Land [§725]

One who has leased possession of land to another may owe certain duties with respect to
dangerous conditions on the property. And the duties may be owed not only to the
lessee, but also to persons who come onto the property or pass outside it. In any case,
however, the lessor’s liability is generally limited. This reflects the fundamental rationale
that tort liability for hazardous conditions on land is based on control of the land—so
that where the defendant has transferred control to another (by lease or conveyance),
special circumstances must exist to justify imposing tort liability on the lessor. [Borders
v. Roseberry, 532 P.2d 1366 (Kan. 1975)]
a. Duties owed to persons outside the land [§726]
Suppose the lessor leases a building to a tenant. One month later, a passerby on the
street is struck by an awning falling off the side of the building. Who is liable to the
passerby?
170
(1) Dangerous conditions existing at time of transfer [§727]

Those duties that the lessor would have owed as a land occupier to persons
outside the land had she retained possession continue for a reasonable length of
time after she leases it. (See supra, §§653 et seq.)
(a) Duty to repair or warn lessee [§728]
Thus, the lessor of land owes a duty to exercise due care to discover and
repair existing dangerous conditions on the land of which she has reason to
know, or at least warn the lessee thereof, prior to transferring possession.
[Both v. Harband, supra, §371]
1) “Dangerous conditions” [§729]
“Dangerous conditions” refers to artificial conditions on the land
involving any risk of harm. Most courts impose no duty with respect to
natural conditions (except as to trees in urban areas adjoining public
roads).
2) “Existing” dangerous conditions [§730]
“Existing” dangerous conditions include conditions that may be only
potentially dangerous at the time of transfer, if they are likely to
develop into actual dangers later on (e.g., awning support badly rusted
but not yet broken at time of transfer).
(b) Duration of duty limited [§731]
The lessor’s duty to persons outside the land continues only until the lessee
has had a reasonable opportunity to discover the condition and remedy it
(e.g., if the transferor warned the transferee at the time of transfer, the duty
continues only through that period of time required to repair). After such
period, the lessee’s own negligence—as a land occupier—is regarded as a
superseding cause of any injury suffered by persons outside the land from
that condition.
1) Distinguish—deliberate concealment [§732]
However, if the lessor actively concealed the danger, her liability
continues until the lessee actually discovers the danger and has a
reasonable time to remedy it.
b. Duties owed to lessee
(1) Dangerous conditions existing at time of transfer [§733]
Whether the lessor owes any duty to the lessee depends on whether the
dangerous condition is apparent (patent) or concealed (latent).
(a) Patent dangers—no duty [§734]
With regard to dangerous conditions (artificial or natural) that are reasonably
apparent, there is no duty owed; i.e., the lessor has no
171
obligation to repair the condition or even warn the lessee of its existence.
And if the condition is such that a reasonable person would have been aware
of it (e.g., excavation in backyard, missing banister on stairway, etc.), the
lessee will be charged with such knowledge.
[Kearns v. Smith, 55 Cal. App. 2d 532 (1942)]
(b) Latent dangers—duty to repair or warn [§735]
However, as to concealed or hidden dangerous conditions (artificial or
natural) that involve any risk of harm and that are known to the lessor,
there is a duty to repair or warn the lessee. [Smith v. Green, 260 N.E.2d
656 (Mass. 1970)]
1) No duty to investigate [§736]
Note that the duty here is limited to conditions of which the lessor was
aware at the time of transfer. The lessor is under no duty to inspect or
investigate for defects in the absence of some reason to believe that
there is a danger. [Newman v. Golden, 144 A. 467 (Conn. 1929)]
(2) Dangerous conditions arising after transfer [§737]
Having transferred possession of the premises to the lessee, the lessor owes no
duty with respect to dangerous conditions arising after the transfer—subject to
the exceptions noted below.
(a) Exception—lessor negligent in making repairs [§738]
To the extent that the lessor has undertaken to repair dangerous conditions
that arose after transfer, and has done so negligently, she is liable for any
injuries attributable to that negligence (e.g., where landlord attempts to
repair water heater, but does so negligently, causing scalding water to injure
tenant). Note that liability will be imposed whether the lessor undertook the
repairs gratuitously, pursuant to an obligation under the lease, or because of
a statutory duty to repair.
(b) Exception—lessor fails to make repairs as covenanted in lease
1) Traditional view—no tort liability [§739]
Until recently, most courts followed the “nonfeasance vs. misfeasance”
distinction (discussed supra, §§572, 576-577) in cases where a lessor
failed to make repairs as covenanted in the lease—so that the landlord’s
total failure to repair was considered “nonfeasance,” which would not
support tort liability. [See, e.g., Jacobson v. Leventhal, 148 A. 281
(Me. 1930)]
2) Modern trend—tort liability applies [§740]
Today, many courts allow recovery in tort against a landlord who has
failed to undertake repairs required by the lease. [Faber v. Creswick,
156 A.2d 252 (N.J. 1959); Rest. 2d §357]
172
a) Rationale
The lessor’s covenant to repair is the kind of promise upon which
the lessee had a right to rely in refraining from making the needed
repairs himself.
b) Statutory developments [§741]
Moreover, statutes increasingly require a landlord to maintain rented
premises in a safe condition, and some courts hold that the landlord’s
failure to make repairs is a violation of her statutory duty (i.e.,
“negligence per se”). [Daniels v. Brunton, 80 A.2d 547 (N.J.
1951)]
c) Distinguish—gratuitous promises [§742]
However, if the landlord’s promise to repair was gratuitous (not
required by lease or statute), most courts will not impose tort
liability, on the ground that the tenant’s reliance here is not as
justifiable as where the landlord was legally obligated to make the
repairs. [Rest. 2d §357 cmt. b]
d) Caution—knowledge and opportunity to repair required
[§743]
Remember that even if there is a basis for allowing recovery in tort,
any landlord’s liability is always contingent on showing that she
knew or should have known of the defective condition (e.g., as by
tenant complaints), and that she had a reasonable opportunity prior
to the injury to make the repairs.
(c) Minority view—general duty of care [§744]
A number of states hold that a lessor owes a lessee a duty of ordinary care
in all cases. Issues of notice of a defect, its obviousness, and control of the
premises are considered in these states only in defining the care that is owed.
[See, e.g., Pagelsdorf v. Safeco Insurance Co., supra, §719]
c. Duties owed to third persons coming onto land with lessee’s express or implied
consent [§745]
Suppose the lessor leases land to the tenant, who invites the plaintiff onto the
premises, and the plaintiff is injured by a dangerous condition on the land.
(1) Traditional view—no tort liability for lessor [§746]
The early view held that with the exception of leases contemplating the entry of
many people, the lessor owed no duty to third persons coming onto the
premises, on the theory that there was no “privity” between the lessor and the
injured party. [McKenzie v. Cheetham, 22 A. 469 (Me. 1891)]
173
(2) Modern trend—same duty as owed to lessee [§747]

Today, many courts treat third persons who enter the premises with the express
or implied consent of the lessee as falling within the scope of the lessor’s general
tort liability. Thus, to the extent the lessor owes a duty of care to the lessee
(supra), she also owes a similar duty to persons entering the premises with the
lessee’s express or implied consent.
(a) Latent dangers [§748]
Hence, a landlord’s liability with respect to known, latent defects (see
supra, §735) would extend to both the tenant and the tenant’s guests or
visitors, if injured thereby. [Scholey v. Steele, 59 Cal. App. 2d 402 (1943);
Rest. 2d §358]
1) Duration of liability [§749]
The lessor’s liability terminates when the tenant has had sufficient
opportunity to discover and remedy the dangerous condition. At that
point, the tenant’s own breach of duty (as land occupier) to visitors is
regarded as a superseding cause of injuries suffered by the visitors.
[Rest. 2d §353(2); and see Borders v. Roseberry, supra, §725—lessor
not liable to tenant’s social guest who fell on icy steps because tenant
knew of condition and should have warned guest]
(b) Failure to make promised repairs [§750]
Moreover, jurisdictions that hold the lessor liable in tort for failing to make
repairs as required by the lease or statute (above), generally hold the lessor
liable to third persons coming onto the leased premises with the tenant’s
consent. [Krieger v. Ownership Corp., 270 F.2d 265 (3d Cir. 1959)]
d. Duties owed where lessor has retained control of common areas [§751]
Where the leased premises consist of multiple units (e.g., office building, apartment
house, etc.), the lessor normally retains control of common areas (e.g., lobbies,
hallways, elevators, stairways, restrooms). As to such areas, the lessor is regarded as
the land occupier and owes whatever duties of care a land occupier would owe—
both to tenants in the building and to persons entering the premises as guests or
business visitors of the tenants. [Taneian v. Meghrigian, 104 A.2d 689 (N.J. 1954)]
174
(1) Duty to safeguard against crime? [§752]

Several courts have enlarged this duty to include taking reasonable precautions
against foreseeable criminal acts of third parties—e.g., installing a security
guard service to protect against muggings and robberies in hallways of an
apartment house where criminal acts had occurred frequently, or replacing faulty
deadbolt locks. [Kline v. 1500 Massachusetts Avenue Apartment Corp., 439
F.2d 477 (D.C. Cir. 1970); but see Rowe v. State Bank of Lombard, 531
N.E.2d 1358 (Ill. 1988)—no duty unless landlord voluntarily assumes it]
e. Duty owed where lessor has right to control dangerous activity or condition
created by tenant [§753]
If the landlord has actual knowledge that a tenant has created a dangerous condition
or activity on the premises, plus the right to terminate the dangerous condition or
activity, the landlord is under a duty to exercise due care to prevent the condition or
activity from injuring third persons.
Example: A landlord has been held liable for failure to remove a tenant’s vicious
dog, which attacked a young child playing with the tenant’s children. The court
found that the landlord knew of previous attacks by the dog. The landlord’s right to
terminate a tenant’s lease on two weeks’ notice was deemed a sufficient right to
remove the dog. [Uccello v. Laudenslayer, 44 Cal. App. 3d 504 (1975); and see
Gallick v. Barto, 828 F. Supp. 1168 (M.D. Pa. 1993)—landlord had duty to begin
eviction proceedings against tenant whose ferret later bit plaintiff; but see Frobig v.
Gordon, 881 P.2d 226 (Wash. 1994)—no duty on landlord to protect third person
from tenant’s dangerous tiger]
11. Duties Owed by Sellers of Land [§754]
Under the same rationale that justifies limiting a lessor’s liability—i.e., that control has
been transferred to another (see supra, §725)—the general rule is that after possession
has been transferred, sellers of land are not liable for harm suffered by those on or
outside the premises. [Preston v. Goldman, 42 Cal. 3d 108 (1986)]
a. Exception—failure to disclose latent dangerous conditions [§755]

However, a seller who fails to disclose known dangerous conditions is liable to those
harmed thereby—including the buyer, the buyer’s family, and third persons entering
the land with the buyer’s consent. [Rest. 2d §353] Rationale: Failure to warn is
tantamount to a type of fraud.
b. Exception—persons outside the premises [§756]

And if the property sold contained an unreasonable risk of harm to persons outside
the premises, the seller will remain liable for a reasonable period after the transfer of
possession. [Derby v. Public Service Co., 119 A.2d 335 (N.H. 1955)]
c. Duration of liability under exceptions [§757]

Generally, the seller’s liability lasts only until the buyer has had a reasonable
175
time to discover and remedy the condition. But if the seller actively concealed the
hazardous situation, liability continues until the buyer actually discovers the danger
and has a reasonable opportunity to remedy it. [Narsh v. Zirbser Bros., 268 A.2d 46
(N.J. 1970)]
12. Duties Owed by Bailors of Chattels [§758]

Although this is really part of “Products Liability,” discussed infra, §§925 et seq., it is
worth noting at this point that the bailor of a chattel owes a certain duty of care
(negligence liability) with respect to the condition of the chattel. The duty is owed both to
the bailee and to all other persons within the foreseeable scope of use of the chattel (e.g.,
pedestrians on the streets where a bailed auto may be driven). The scope of the bailor’s
duty depends on the nature of the bailment, and in this regard, it is analogous to that
owed by a land occupier (supra).
a. Gratuitous bailment [§759]

If the bailment is gratuitous, the bailor owes a duty only to warn of known,
concealed defects (analogous to the duty owed by a land occupier to a licensee).
[Hills v. Lyons Plumbing & Heating Co., 457 S.W.2d 503 (Ky. 1970)]
b. Bailments for hire [§760]

A greater duty is owed in the case of bailments for hire. Here, the bailor must
exercise due care not only to warn of known, concealed defects, but also to make a
reasonable inspection of the chattel before bailing it in order to determine its safety
(analogous to the duty owed by a land occupier to an invitee). [Collette v. Page, 114
A. 136 (R.I. 1921)]
(1) Warning may not discharge duty [§761]
Unlike gratuitous bailment cases, the bailor’s warning to the bailee may not be
enough to discharge this duty to third persons injured by the bailee’s use of a
defective chattel. Indeed, a number of modern courts impose strict liability in
tort against commercial bailors (see infra, §994). [Price v. Shell Oil Co., 2 Cal.
3d 245 (1970)]
13. Duties Relating to Emotional Distress
a. Traditional view—nature of duty owed [§762]

The traditional view rejects a duty of due care to prevent infliction of emotional
distress on others as such. Rather, the duty owed is to exercise due care not to
subject others to a risk of physical injury, through physical impact or threat thereof,
that might foreseeably result in emotional distress and consequent physical injuries to
them. [Battalla v. State, 10 N.Y.2d 237 (1961)] In most jurisdictions, however, the
duty has been broadened (see infra).
(1) Distinguish—recovery as parasitic damages [§763]
Remember that where physical injury (e.g., battery) is accompanied by
emotional distress, damages for the distress are recoverable as part of the
176
action for personal injury. In the usual negligence case, pain and “suffering” may
include emotional distress related to the physical injury.
b. Actual or threatened physical impact [§764]

The early view required the plaintiff to show that the defendant, by failing to exercise
the due care required above, subjected the plaintiff to actual physical impact. Today,
however, in most states a threat of impact to the plaintiff (i.e., plaintiff is within the
“zone of danger” from defendant’s negligent conduct) will suffice. [Falzone v.
Busch, 214 A.2d 12 (N.J. 1965); Battalla v. State, supra]
(1) Minority view—impact; physical injuries [§765]
A few states continue to adhere to some version of the impact rule. [See, e.g.,
Ruttger Hotel Corp. v. Wagner, 691 So. 2d 1177 (Fla. 1997)—guests pushed
back into their rooms by armed robbers could not recover for emotional distress
against hotel for its lack of security because of failure to meet impact rule; Ross
v. Cheema, 716 N.E.2d 435 (Ind. 1999)—loud pounding on front door, opening
of screen door, and attempting to turn knob on main door do not provide
required impact; but see Conder v. Wood, 716 N.E.2d 432 (Ind. 1999)—
pedestrian who pounded on side of truck to alert driver that he had run over
pedestrian’s companion met the state’s “modified impact” rule] Moreover, some
states require some physical injury to ground an action for negligent infliction of
emotional distress. But even these states do not require that this physical injury
be shown to have caused the emotional distress. [See, e.g., Roling v. Daily, 596
N.W.2d 72 (Iowa 1999)—truck driver who suffered some physical injury when
negligent driver crashed into truck may recover for emotional distress at seeing
mangled body of the negligent driver, even though emotional distress was not
related to the truck driver’s physical injury]
(2) Distinguish—intentional cases [§766]
Intentional infliction of emotional distress does not require physical impact, or
even threat of physical impact, to the plaintiff. (See supra, §§79-99.)
(3) Limitation—exposure cases [§767]
“Mere exposure” to a toxic substance or infectious disease does not qualify as
“impact,” unless—in some jurisdictions—the plaintiff accurately knows of the
exposure and has a “serious fear” that she is “more likely than not”
177
to develop the harm caused by the substance or disease. [Metro-North

Commuter Railroad v. Buckley, 521 U.S. 424 (1997)—asbestos exposure not
adequate; Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (1993)—fear
of cancer from asbestos exposure insufficient without proof that cancer was
more likely than not to occur]
(a) AIDS cases [§768]
If a plaintiff comes in contact with someone with AIDS, there will be a
sufficient threat of impact only if the plaintiff was actually exposed to the
virus. It is not enough that the plaintiff fears that the contact resulted in
transmission. [Brzoska v. Olson, 668 A.2d 1355 (Del. 1995)—treatment of
plaintiff patient by an AIDS-infected physician or dentist is not enough;
K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995); but see Faya v.
Almaraz, 620 A.2d 327 (Md. 1993)—permitting recovery for emotional
distress during window of uncertainty before negative test results received;
Williamson v. Waldman, 696 A.2d 14 (N.J. 1997)—rejecting a
requirement of actual exposure to HIV in favor of asking what reasonable
well-informed citizens might fear]
(4) Exception—no “zone of danger” requirement [§769]
In a few categories of cases, courts have allowed claims for stand-alone
emotional distress to go forward without the “zone of danger” limitation. [See,
e.g., Corgan v. Muehling, 574 N.E.2d 602 (Ill. 1991)—court imposed a duty
on defendant psychologist who had sexual relations with a patient, although the
patient never felt a threat to her safety]
(a) False death reports and corpse cases [§770]
Some states following the general view allow recovery for emotional distress
without requiring that the plaintiff be within the zone of danger under two
circumstances: erroneously reporting a relative’s death or mishandling the
corpse of a relative. Rationale: These cases involve a special likelihood of
genuine and serious mental distress, which guarantees that the plaintiff’s
claim is not fictitious.
Examples—false death report: D hospital negligently notifies P, a
close relative of a living patient, that the patient has died. P may recover
for emotional distress. [Johnson v. State, 37 N.Y.2d 378 (1975); but see
O’Brien v. Western Union Telegraph Co., 113 F.2d 539 (1st Cir. 1940)—
most states following the general rule do not recognize this exception]
Examples—corpse mishandling: Court imposed a duty where D’s

lack of due care caused the corpse of P’s deceased husband to be
mutilated or injured in public. [Cohen v. Groman Mortuary, Inc.,
178
231 Cal. App. 2d 1 (1964); but see Dunahoo v. Bess, 200 So. 541 (Fla.
1941)—rejecting this rule] Courts have also imposed a duty of reasonable
care on a mortuary that sent a stranger’s leg to P in the package that was
supposed to contain the personal effects of P’s deceased father. [Gammon
v. Osteopathic Hospital of Maine, Inc., 534 A.2d 1282 (Me. 1987)]
c. Injury or threat of injury to another (bystander recovery)

(1) Older view rejects duty [§771]
The older view requires a showing that the defendant’s negligence endangered
the plaintiff personally. The plaintiff must be in the “zone of danger” to recover
for physical manifestations resulting from emotional distress. [Bovsun v.
Sanperi, 61 N.Y.2d 219 (1984)—requiring zone of danger but not physical
manifestation] This rule prevents plaintiffs from recovering in cases in which
they were not personally at risk. [Williams v. Baker, 572 A.2d 1062 (D.C.
1990)—mother could not recover for harm she sustained after witnessing effect
of malpractice D committed on her young son]
(2) Broader view [§772]
But a growing and substantial number of states permit the plaintiff to recover for
severe emotional distress—with or without physical manifestation—where the
defendant’s negligence injures or threatens a member of the plaintiff’s family,
but not the plaintiff. [Dillon v. Legg, 68 Cal. 2d 728 (1968)—mother may
recover for emotional distress and consequent physical injury resulting from
seeing her child run over in a traffic accident]
(a) Determinative factors under broader view [§773]
Under this view, the plaintiff must meet three requirements [Thing v. La
Chusa, 48 Cal. 3d 644 (1989)—these are requirements, not just guidelines]:
1) Close relationship [§774]
The plaintiff and the victim must have been closely related. [Elden v.
Sheldon, 46 Cal. 3d 267 (1988)—no recovery for seeing injury to long-
term live-in lover; but see Dunphy v. Gregor, 642 A.2d 372 (N.J. 1994)
—contra; Leong v. Takasaki, 520 P.2d 758 (Haw. 1974)—recognizing
family relationship between child and stepfather’s mother]
2) Physical proximity and contemporaneous observance [§775]
The plaintiff must be at the scene of the accident that injures the victim
and must be aware at that time that the victim is suffering from injuries.
[Thing v. La Chusa, supra—no recovery to mother who was not
present at scene when accident occurred]
179
a) “Contemporaneous” [§776]
In some states, this need not mean simultaneous. [Corso v. Merrill,
406 A.2d 300 (N.H. 1979)—father viewed injured daughter after
wife’s screams summoned him to scene]
b) Note
In some states, the other person need not in fact have been seriously
hurt. It is enough if the plaintiff reasonably believes that the type of
accident observed would seriously harm those involved. [Barnhill v.
Davis, 300 N.W.2d 104 (Iowa 1981)]
3) Suffer extraordinary emotional distress [§777]
The plaintiff must suffer distress beyond that likely to be suffered by an
unrelated bystander who sees the accident. [Thing v. La Chusa, supra]
(b) Foreseeability (minority) [§778]
A few jurisdictions analyze the specific circumstances for foreseeability in a
traditional negligence review rather than requiring the three determinative
elements set out above. [Ferriter v. Daniel O’Connell’s Sons, Inc., 413
N.E.2d 690 (Mass. 1980)—allowing recovery to children who first viewed
father’s injuries at hospital where he was taken following industrial accident;
but see Stockdale v. Bird & Son, Inc., 503 N.E.2d 951 (Mass. 1987)—
denying recovery to mother who did not learn of accident for several hours
and did not see body for 24 hours]
(c) Limitation [§779]
The plaintiff’s rights may be derivative only. Even where recovery by a third
person (parent) is permitted, the right of action is generally derivative; i.e., it
is dependent upon the imperiled person’s (child’s) right to recover. Thus, if
the defendant was found not liable for the harm to the child (e.g., because
of the child’s contributory negligence), the parent would not be permitted to
recover for emotional distress in witnessing the child’s injury. [Dillon v.
Legg, supra]
d. Damage to property [§780]

Most cases deny plaintiff recovery for emotional distress and consequential injuries
when property interests are negligently damaged or threatened. [See, e.g., City of
Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997)—adopting “overwhelming majority”
view that recovery for property damages and economic harm suffices where D’s
negligence has harmed P’s home, and that damages for emotional distress are not
recoverable; Erlich v. Menezes, 21 Cal. 4th 543 (1999)—same; but see Rasmussen
v. Benson, 280 N.W. 890 (Neb. 1938)—P’s cattle were fed poisoned bran through
D’s negligence; P suffered emotional distress
180
and subsequent heart trouble from fear that he had sold poisoned milk to customers
and that it would ruin his dairy business]
(1) Pets [§781]
Most courts deny recovery for emotional distress caused by the death of a pet.
[See, e.g., Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996)—death of
dog; Fackler v. Genetzky, 595 N.W.2d 884 (Neb. 1999)—death of two horses;
but see Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981)
—recovery to family that learned over telephone that pet dog had been killed]
e. Resulting physical manifestation required [§782]

The general view requires that the emotional distress be shown by tangible physical
manifestation in the plaintiff (e.g., miscarriage, nervous breakdown, paralysis, etc.).
[Nancy P. v. D’Amato, 517 N.E.2d 824 (Mass. 1988); Muchow v. Lindblad, 435
N.W.2d 918 (N.D. 1989); Reilly v. United States, 547 A.2d 894 (R.I. 1988)—
identifying as majority rule; Rest. 2d §436A]
(1) Rationale
Proof of physical manifestation is insisted upon by most courts to preclude the
likelihood of fraudulent claims (i.e., simulated emotional distress) and unlimited
liability.
(2) Minority view—no resulting physical manifestation [§783]
A growing minority view allows recovery for severe emotional distress without
physical manifestation or threat of injury to the plaintiff. [Johnson v. Ruark
Obstetrics & Gynecology Associates, 395 S.E.2d 85 (N.C. 1990)—negligence
producing foreseeable and actual “severe” emotional distress suffices without
proof of physical manifestation in suit against physician by parents of stillborn
fetus; Bowen v. Lumbermens Mutual Casualty Co., 517 N.W.2d 432 (Wis.
1994)—no requirement of physical manifestation where mother sues for distress
when child was killed]
(3) Minority view—property damage [§784]
A small minority permits recovery of emotional distress without physical
manifestation for negligent destruction of a plaintiff’s property. [Rodrigues v.
State, 472 P.2d 509 (Haw. 1970)—recovery permitted for emotional distress
alone where D’s negligence permitted six inches of water to enter house that P
had just finished building with his own hands; but see Day v. Montana Power
Co., 789 P.2d 1224 (Mont. 1990)—emotional distress alone insufficient in suit
by restaurant owner for negligent destruction of his restaurant]
f. “Severe” emotional distress required [§785]

In most states, courts permit a plaintiff to succeed in a claim of negligent infliction of
emotional distress only if a normally constituted person would have suffered, and
the plaintiff actually did suffer, severe emotional distress. [Bovsun v. Sanperi,
supra, §771]
181
(1) “Eggshell psyche” plaintiffs [§786]

The requirement that a normally constituted person would have suffered severe
emotional distress does not preclude consideration of a plaintiff’s particular
emotional vulnerability in two respects:
(a) Defendant’s knowledge of special vulnerability [§787]
If the defendant knew or should have known that the plaintiff is especially
vulnerable, the defendant will be liable even though a normally constituted
person would not have suffered severe distress. [Corgan v. Muehling,
supra, §769]
(b) Damages [§788]
If the defendant’s conduct would have caused severe emotional distress to a
normally constituted person, the plaintiff may recover the full extent of her
emotional distress injuries, even if beyond what a normally constituted
person would have suffered. This rule is an extension of the “thin-skull” or
“eggshell skull” rule for proximate cause (see supra, §471).
182
14. Duty Not To Cause Purely Economic Loss [§789]
The general rule is that a defendant owes no common law tort duty of care not to cause
purely economic loss to another. This is commonly referred to as the “economic loss
rule.”
a. Limited exceptions [§790]

Courts do, however, allow such recovery in limited circumstances. This Summary
discusses these circumstances in sections covering the torts of defamation (see infra,
§§1352 et seq.), wrongful invasion of privacy (see infra, §§1544 et seq.),
misrepresentation (see infra, §§1622 et seq.), injurious falsehood (see infra, §§1684
et seq.), and interference with economic relations (see infra, §§1710 et seq.).
Example: P airport is forced to close due to D railroad’s negligence in wrecking
a train carrying toxic chemicals. P may not recover economic damages resulting
from the closure. [People Express Airlines, Inc. v. Consolidated Rail Corp., 495
A.2d 107 (N.J. 1985)]
D. Defenses to Negligence
1. Contributory Negligence
a. “Contributory negligence” defined [§791]

Contributory negligence is conduct on the part of a plaintiff that is a contributing
cause to her own injuries, and that falls below the standard to which she is required
to conform for her own protection. [Rest. 2d §463]
b. Prima facie case [§792]

The prima facie case for contributory negligence is similar to the prima facie case for
negligence, except that the duty here is not owed to any other person; rather, it is a
duty to exercise due care in the circumstances to avoid one’s own injury at the hands
of another. Also, there is no requirement of an “act”; the
183
duty of self-protection always exists and is often violated by unreasonable inaction

in the face of danger.
(1) General standard of care [§793]
The plaintiff’s conduct is always measured by what the reasonable person would
have done under the same or similar circumstances. [Solgaard v. Guy F.
Atkinson Co., 6 Cal. 3d 361 (1971)]
(a) Application—emergency cases [§794]
Thus, if the plaintiff is confronted with an emergency not of her own
making, her conduct is compared to what a reasonable person would do in
such an emergency. For example, where the plaintiff is faced with imminent
peril to herself (or to a third person), she may assume extraordinary risks or
perform dangerous acts in attempting to avoid the peril (or to rescue the
third person) without being held contributorily negligent. [Eckert v. Long
Island Railroad, 43 N.Y. 502 (1871)]
(b) Application—children [§795]
Courts differ over whether acts of children may be examined for
contributory negligence. Most modern courts instruct the jury to consider
the behavior of the plaintiff in light of her age and other circumstances
[Lester v. Sayles, 850 S.W.2d 858 (Mo. 1993)—child age 4.75 years may
be found contributorily negligent], while others follow the rule that assigns
presumptions, varying with age, that a child is incapable of negligence [see,
e.g., Glorioso v. YMCA, 556 So. 2d 293 (Miss. 1989)—nine-year-old
child presumptively incapable of contributory negligence; Price v. Kitsap
Transit, 886 P.2d 556 (Wash. 1994)].
(c) Application—forgetfulness [§796]
Momentary forgetfulness is not contributory negligence as a matter of law
but is a question for the jury. [Cohen v. St. Regis Paper Co., 65 N.Y.2d
752 (1985)]
(d) Exception [§797]
In some states, an adult plaintiff who is unstable need only act reasonably
within her limits. [Tobia v. Cooper Hospital University Medical Center,
643 A.2d 1 (N.J. 1994)—where duty includes exercise of care to prevent
elderly patient from engaging in self-damaging conduct, patient’s engaging in
such conduct cannot be raised as contributory negligence]
(2) Statutory standards of care [§798]
Another significant factor is whether the plaintiff has complied with statutes
enacted for her own protection, and if not, whether the violation of such statutes
will necessarily affect her claim.
184
(a) “Contributory negligence per se” [§799]

Where the plaintiff has violated a statute designed for her own protection as
well as the protection of others (e.g., speed or traffic laws), the violation by
itself may establish duty and breach. [Rest. 2d §469]
(b) Violation must be contributing cause [§800]
In any case, however, the violation must be a contributing cause to the
accident; e.g., driving without a valid driver’s license is not contributory
negligence. [Moore v. Hart, 188 S.W. 861 (Ky. 1916); Crawford v.
Halkovics, 438 N.E.2d 890 (Ohio 1982)]
(c) Exception—plaintiff member of class needing special protection
[§801]
If it is shown that the plaintiff is a member of a special class sought to be
protected by the statute—so that the statutory objective would be defeated if
the plaintiff’s fault were held to be a defense—the plaintiff’s violation of the
statute may be disregarded. [Chainani v. Board of Education, 87 N.Y.2d
370 (1995)—school bus driver violating statute requiring use of lights and
waiting until passenger has crossed the street may not use child’s
contributory negligence as defense]
c. Common law effect of contributory negligence [§802]

At traditional common law, a plaintiff’s contributory negligence was an absolute and
complete bar to any recovery for the negligence of the defendant. And this was true
even if the plaintiff’s negligence was very slight when compared to the negligence of
the defendant. [Rest. 2d §467]
(1) Defense only to negligence [§803]
Contributory negligence was a defense only to negligence. It was no defense at
all to intentional torts [Tratchel v. Essex Group, Inc., 452 N.W.2d 171 (Iowa
1990)] or to recklessness. (As to its role in strict liability, see infra, §920.)
(2) Note
By judicial or legislative action, almost every state has adopted comparative
negligence. (See infra, §815.)
d. Exception—last clear chance doctrine [§804]

To soften the “complete defense” rule for contributory negligence, courts held that a
plaintiff’s contributory negligence would not bar or reduce recovery if the defendant,
immediately prior to the accident, had the “last clear chance” to avoid the accident
and failed to do so (but see infra, §824). [Davies v. Mann, 152 Eng. Rep. 588
(1842)] Rationale: In these cases, the plaintiff’s contributory negligence placed her in
a position of either “helpless” or “inattentive” peril.
185
(1) “Helpless peril” cases [§805]

In a “helpless peril” situation, the plaintiff—through her contributory negligence
—had placed herself in a position of danger from which she was powerless to
extricate herself by the exercise of reasonable care. In other words, even though
the plaintiff was aware of the danger, the only remaining opportunity to avert the
peril rested with the defendant (e.g., while plaintiff was carelessly running across
a busy street she fell and sprained her ankle). Most courts allowed recovery if
the defendant had actual knowledge of the plaintiff’s peril or should have had
such knowledge—and was negligent thereafter.
(2) “Inattentive peril” cases [§806]
In an “inattentive peril” case, the plaintiff, through contributory negligence,
placed herself in a situation of peril, but from which she could have extricated
herself by the exercise of reasonable care practically up to the moment of injury
but did not because she was unaware that the harm was about to occur (e.g., she
crossed the street without looking for oncoming cars; had she been paying
attention, she would have discovered defendant motorist’s approach and could
have averted the imminent peril). In these situations, the overwhelming weight of
authority required that the defendant have had actual knowledge of the
plaintiff’s presence in time to have avoided the accident by due care before last
clear chance applied.
e. Imputed contributory negligence [§807]

Although contributory negligence was frequently imputed in older cases to bar the
plaintiff’s recovery, today, in the few states retaining contributory negligence, it is
imputed in only three major situations: (i) master-servant, (ii) joint enterprise; and
(iii) cases in which the plaintiff is suing because of an injury to someone else. [Rest.
2d §485; LaBier v. Pelletier, 665 A.2d 1013 (Me. 1995)—mother’s negligence not
imputed to child]
(1) Master-servant [§808]
A servant’s negligence may be imputed to the master. For example, Chauffeur is
driving Employer to work in Employer’s car. A collision occurs between the cars
driven by Chauffeur and D, due to the negligence of both Chauffeur and D.
Employer is injured. Chauffeur’s negligence will be imputed to Employer in any
suit that she brings against D. [Smalich v. Westfall, 269 A.2d 476 (Pa. 1970)]
(2) Joint enterprise [§809]
Similarly, if P and X are engaged in a joint enterprise (see supra, §628) and due
to the combined negligence of both X and a third person (D) P is injured, X’s
negligence will be imputed to P to bar her recovery against D. But note: This
rule applies only where one joint enterpriser sues a person other than the
negligent joint enterpriser. Thus, should P sue X, P will not be barred from
recovery by X’s negligence. [Rest. 2d §491 cmt. k]
186
(3) Suit based on injury to third persons [§810]

In actions brought for wrongful death (see infra, §§1156 et seq.), for loss of
consortium (see infra, §§1172 et seq.), or for bystander emotional distress (see
supra, §§771 et seq.), most courts will impute to the plaintiff the negligence of
the person killed or injured. [Rest. 2d §494; Lee v. Colorado Department of
Health, 718 P.2d 221 (Colo. 1986)]
(4) Distinguish—bailees [§811]
Most courts do not impute the negligence of a bailee in suits brought by the
bailor against a third party (D) for negligence. For example, the bailor may sue D
for damages to the bailor’s car caused by the joint negligence of the bailee and
D, and the bailee’s negligence will not be imputed to the bailor in that action. But
the negligence will be imputed if D sues the bailor. [York v. Day’s, Inc., 140
A.2d 730 (Me. 1958)]
(a) Note
The same refusal to impute contributory negligence appears in family
purpose cases (see supra, §602). [Bartz v. Wheat, 285 S.E.2d 894 (W. Va.
1982)]
(5) Distinguish—spouses [§812]
Ordinarily, negligence or assumption of the risk (below) by one spouse is not
imputed to the other so as to bar recovery for injuries received in an accident in
which both the first spouse and a third party (D) were negligent. [Rest. 2d §487]
(a) Intrafamily tort immunity [§813]
This is important because one spouse may not be able to sue the other for
injuries due to intrafamily tort immunity (see infra, §§1211-1213), but may
still be able to recover by suing the third party.
(b) Community property states [§814]
In some community property states, one spouse’s negligence is imputed to
the other to bar recovery (or reduce it under comparative negligence) against
the defendant. Rationale: Such states view the recovery as community
property in which the negligent spouse would have an interest, and thus, to
prevent the negligent spouse from profiting by his own wrong, the
negligence is imputed to the innocent spouse. (See Community Property
Summary.)
2. Comparative Negligence [§815]

This doctrine—now adopted by virtually all states by statute or judicially—rejects the
notion that contributory negligence is always a complete bar to recovery by the plaintiff.
Instead, the comparative negligence approach attempts to individualize accident
recoveries by placing the economic “sting” on the parties in proportion to their fault. In
every case where contributory negligence is shown, the trier of fact
187
must make a special finding on the degree of fault of each party’s negligence, and the
plaintiff’s damages are reduced accordingly, or sometimes barred. [Li v. Yellow Cab
Co., 13 Cal. 3d 804 (1975)]
Example: If P suffered $50,000 worth of injuries and the jury finds that D was 80%
at fault in causing the accident and P was 20% at fault, P would recover 80% of her
damages, or $40,000.
a. “Pure” vs. “partial” comparative negligence [§816]

There are two basic types of comparative negligence formulae for assessing liability:
(1) “Pure” [§817]
A number of jurisdictions (e.g., California and New York) have “pure”
comparative negligence, which allows the plaintiff to recover a percentage of her
damages even if her own negligence exceeds that of the defendant (e.g., if a jury
determines that the plaintiff was 90% at fault, she can still recover 10% of her
damages).
(2) “Partial” [§818]
Most states, however, recognize only “partial” comparative negligence, in that
they deny any recovery to a plaintiff whose own negligence passes some
threshold level.
(a) “49% limit” plans [§819]
Some states deny recovery to the plaintiff if her negligence equals or
exceeds that of the defendant. Thus, if the plaintiff is 49% to blame, she can
recover 51% of her damages, but if the breakdown is 50-50, she gets
nothing. [Bevan v. Vassar Farms, Inc., 793 P.2d 711 (Idaho 1990)]
(b) “50% limit” plans [§820]
Some jurisdictions turn this around and allow the plaintiff to recover if the
defendant’s negligence equals or exceeds that of the plaintiff (the “equal to
or less than” or “50% limit” plans). Under this approach, if the jury finds
that the plaintiff was 50% at fault, she can still recover half her damages.
(c) Multiple defendants [§821]
If multiple defendants are negligent, almost all states compare the plaintiff’s
negligence with the combined negligence of all defendants. [Elder v.
Orluck, 515 A.2d 517 (Pa. 1986)] Wisconsin and perhaps one or two other
states compare the plaintiff’s fault with each defendant’s, and unless the
plaintiff’s fault is less than (or equal to) any defendant’s fault, the plaintiff
cannot recover from that defendant. [Delvaux v. Vanden Langenberg, 387
N.W.2d 751 (Wis. 1986)]
188
1) Absent parties [§822]

In jurisdictions that retain joint and several liability, absent parties cannot
be considered in the apportioning of comparative fault. However, many
jurisdictions have modified the rule of joint and several liability (see
infra, §§1330-1333). In those jurisdictions, there is a split over whether
a defendant may seek to cast blame on an absent party. Sometimes the
result depends on the wording of the comparative negligence statute.
[Compare Baldwin v. City of Waterloo, 372 N.W.2d 486 (Iowa 1985),
and Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000)
—prohibiting attribution of fault to absent person unless defendant
identifies the person sufficiently to permit plaintiff to serve process on
that person, with American Motorcycle Association v. Superior
Court, 20 Cal. 3d 578 (1978), and Bowman v. Barnes, 282 S.E.2d 613
(W. Va. 1981)—permitting attribution of fault to absent persons]
b. Impact of comparative negligence doctrine on other rules [§823]

A comparative negligence standard (of whatever type) affects certain other rules:
(1) Last clear chance [§824]
Under any comparative negligence system, the defendant’s negligence as a
whole is compared to that of the plaintiff. It should make no difference,
therefore, whether the defendant’s negligence occurred before or after
discovering the plaintiff’s predicament. Consequently, almost all courts hold that
the doctrine of last clear chance is abolished under comparative negligence.
[Bokhoven v. Klinker, 474 N.W.2d 553 (Iowa 1991)]
(2) Wanton or reckless conduct by defendant [§825]
Most comparative negligence states that have ruled on the issue have held that a
negligent plaintiff’s damages can be reduced even if the defendant’s conduct was
“reckless,” “wanton,” or “grossly negligent.” [Sorensen v. Allred, 112 Cal. App.
3d 717 (1980)]
(a) Distinguish—intentional tort by defendant [§826]
Most courts do not permit a comparison of a plaintiff’s negligence with a
defendant’s intentionally tortious conduct. [Billingsley v. Westrac Co., 365
F.2d 619 (8th Cir. 1966)] In recent years, however, a small but increasing
number of courts have been willing to permit such comparisons, at least for
some intentional torts, e.g., when the victim of a battery acts to instigate it.
[Bonpua v. Fagan, 602 A.2d 287 (N.J. 1992)—permitting comparison of
plaintiff’s negligence in provoking fight with defendant’s intentional battery]
(b) Distinguish—intentional act by one party combined with negligence
by other party [§827]
In the very common situation in which one defendant’s negligence has
189
facilitated an intentional tort or crime by a third party, the courts are split.
This issue has become very important because states have begun altering the
rule of joint and several liability, supra, §418.
1) Better view—noncomparison [§828]
If a negligent landlord facilitates attacks on his tenants, the landlord
should not be permitted to reduce his share of liability by arguing that
the attacker deserves the overwhelming percentage of fault. [See
Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir.
1998)—reviewing state positions] Rationale: The defendant’s negligence
encompassed the very risk of attack and should not be reduced when the
foreseeable risk comes to pass. [Rest. 3d of Torts: Apportionment of
Liability (“Rest. 3d-AL”) §14 (2000)]
2) Other view—comparison [§829]
Some states think it unfair to compare only negligent conduct while
leaving the intentional acts out of consideration. [Reichert v. Atler, 875
P.2d 379 (N.M. 1994)—allocating liability onethird to bartender, who
failed to protect patron from foreseeable killing by another patron, and
two-thirds to the killer] But note that even a court that compares in this
situation may allocate more fault to the negligent party than to those who
commit intentional criminal acts. [Hutcherson v. City of Phoenix, 961
P.2d 449 (Ariz. 1998)—allocating 25% fault to boyfriend who murdered
plaintiff and 75% to city for negligent 911 operator who assigned
victim’s call a low priority]
(c) Distinguish—reckless plaintiff [§830]
In a “pure” comparative negligence state, a reckless plaintiff may recover
some damages from a negligent defendant. [Zavala v. Regents of the
University of California, 125 Cal. App. 3d 646 (1981); but see Barker v.
Kallash, 63 N.Y.2d 19 (1984)—totally barring claim by 15-year-old who
was hurt while making pipe bomb]
(3) Avoidable consequences [§831]
The plaintiff’s unreasonable failure to mitigate damages caused by the
defendant’s negligence will serve to decrease the plaintiff’s damages, rather than
bar recovery. [Ostrowski v. Azzara, 545 A.2d 148 (N.J. 1988)—plaintiff’s
unreasonable postoperative conduct in malpractice case merely decreased her
damages]
(a) Failure to wear safety belt [§832]
In states with statutes mandating the use of safety belts, evidence of failure
to wear one can be admitted (unless the statute bars use in civil
proceedings). [Dahl v. Bayerische Motoren Werke, 748 P.2d 77 (Or.
190
1987)] Where no such mandate exists, most courts have held evidence of
failure to wear a safety belt inadmissible on the issue of comparative
negligence or avoidable consequences. [Swajian v. General Motors Corp.,
559 A.2d 1041 (R.I. 1989)]
(4) Jury instructions [§833]
Courts are split over whether the jury in a comparative negligence case should be
told about how the law works (so that the jurors will know the consequences of
their apportionment). [See H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22
(Tex. 1998)—asserting that growing number of courts are declining to inform
juries; but see Wheeler v. Bagley, 575 N.W.2d 616 (Neb. 1998)—jury should
be instructed]
(5) Imputation of comparative negligence [§834]
The availability of comparative negligence has led some courts to alter rules to
permit imputation of negligence (compare supra, §§807-814). [Mist v. Westin
Hotels, Inc., 738 P.2d 85 (Haw. 1987)—victim’s negligence imputed to spouse
for loss of consortium]
(6) Rescuers [§835]
Although some states have concluded that rescuers no longer need any special
protection, in light of comparative negligence, most courts have retained the
earlier rule. [Ouellette v. Carde, 612 A.2d 687 (R.I. 1992)—comparative
negligence rule does not fully protect underlying policy of rescuer doctrine;
rescuer’s conduct that is negligent at most should not permit reduction in award]
(7) Intoxicated plaintiffs [§836]
Some states have concluded that allowing partial recovery to a drunk plaintiff
against a negligent tavernkeeper or liquor vendor will serve to discourage
defendants’ negligence in these cases. [Estate of Kelley v. Moguls, Inc., 632
A.2d 360 (Vt. 1993)—because neither party will be made whole, both will be
deterred; but see Estate of Kelly v. Falin, 896 P.2d 1245 (Wash. 1995)—
contra, because allowing suit would encourage drunk driving]
(8) Res ipsa loquitur [§837]
Most states have concluded that after the introduction of comparative
negligence, the plaintiff need no longer show freedom from contributory
negligence as part of the res ipsa case. [Giles v. City of New Haven, 636 A.2d
1335 (Conn. 1994)]
(9) Punitive damages [§838]
A plaintiff may not recover punitive damages where the jury has attributed more
fault to the plaintiff than to the defendant. Permitting punitive damages in this
situation would undermine the purpose of comparative negligence. [Tucker v.
Marcus, 418 N.W.2d 818 (Wis. 1988)]
191
3. Assumption of the Risk
a. General rule [§839]

If the plaintiff expressly or impliedly consents to confront the harm from a particular
risk created by the defendant, the plaintiff is held to have assumed that risk and thus
is barred from any recovery for negligence (or strict liability, infra, §§922-924). In
every case, however, it must be shown that the plaintiff (i) recognized and
understood the particular risk or danger involved; and (ii) voluntarily chose to
encounter it.
(1) Note—consent to risk of harm essential [§840]
Mere heedlessness of or indifference to the risk is insufficient to establish
assumption of the risk; the plaintiff must actually consent for the defense to
succeed. [Thomas v. Holliday, 764 P.2d 165 (Okla. 1988)—security guard
thrown from fleeing suspect’s car had not consented to risk of injury]
(2) Application—firefighter’s rule [§841]
When police or firefighters are hurt while responding to some emergency or
when in some dangerous situation, they are almost universally barred from suing
the persons whose acts brought about the emergency. One rationale is that the
very nature of their jobs exposes police and firefighters to these risks of harm.
[See, e.g., England v. Tasker, 529 A.2d 938 (N.H. 1987)—police officer hurt
while attempting to pull person from auto wreck cannot sue allegedly negligent
driver who caused accident; Day v. Caslowitz, 713 A.2d 758 (R.I. 1998)—no
recovery for officer who slipped on defendant homeowner’s snow- and ice-
covered walkway while investigating an activated home-security alarm on the
premises]
b. Assumption of risk by agreement—“exculpatory clauses” [§842]

Where the relationship between the plaintiff and defendant arises out of a contract,
the defendant may attempt to limit or exclude liability in advance by the use of so-
called exculpatory provisions—e.g., a notice printed on a railroad ticket stating that
“carrier shall not be liable for injury to person or property” (or limiting liability to a
specified dollar amount). Whether the plaintiff is barred or limited by assumption of
risk in this situation depends on the enforceability of the provisions both as a matter
of contract law and tort law. [Barnes v. New Hampshire Karting Association,
509 A.2d 151 (N.H. 1986)—race participant barred by release]
(1) Offer and acceptance problem [§843]
First of all, it must be determined that the provision is part of the contract—i.e.,
that a prudent person would have been aware of it at the time the agreement was
entered into, so that it would be part of the offer and acceptance. This usually
requires a showing that the provision was printed in large type, or that there were
large signs posted calling attention to the
192
limitation on liability. Therefore, “fine print provisions” on the backs of tickets or

receipts may be totally unenforceable because not deemed part of the parties’
contract. (See Contracts Summary.)
(a) Note
Explicit use of the terms “negligence” and “breach of warranty” is not
necessary for an exculpatory agreement to shield a party from claims based
on negligence and breach of warranty; the intent of the parties guides
interpretation of the agreement. [Heil Valley Ranch, Inc. v. Simkin, 784
P.2d 781 (Colo. 1989)]
(2) Scope of the contract [§844]
Second, the court must determine whether the terms of the contract encompass
the plaintiff’s injury. Courts tend to construe exculpatory contracts narrowly
and resolve any ambiguities against the drafter (usually the defendant).
Example: An exculpatory clause covering a rafting trip reads: “The
participant releases Extreme Rafting, Inc., from all injuries occurring during
the rafting trip.” If P is injured while in the rafting company’s office, the contract
might be construed not to cover the injury.
(3) Limitation—adhesion contract [§845]
Assuming the provision is deemed part of the contract, its enforceability may
depend on the bargaining position of the parties:
(a) Equal bargaining positions [§846]
If the parties are in an equal bargaining position (e.g., a merchant ordering
goods from a manufacturer), exculpatory provisions are usually upheld.
There is no public policy that prevents the parties from limiting liability for
negligence; and indeed, the limitation of liability was probably one of the
factors relied upon in fixing the contract price.
(b) Unequal bargaining positions—public policy limitations [§847]
However, if it appears that one party set all terms to the contract and the
other had no opportunity to negotiate—so-called adhesion contracts, such
as exculpatory clauses in employment agreements and contracts for public
utility services or public transportation—provisions that would exclude or
limit liability may be held invalid as a violation of public policy. [Rest. 2d of
Contracts §195; Rest. 2d of Torts §496B cmt. b]
1) Public policy factors [§848]
Courts have struggled to develop a useful formula for analyzing the
public policy issue. One leading decision holds an exculpatory agreement
invalid if: (i) it concerns a type of business generally thought suitable for
public regulation; (ii) the party seeking
193
exculpation is performing an essential service to the public; (iii) the party

holds itself out as willing to perform this service for any member of the
public who seeks it or falls within certain established standards; (iv) as a
result of the essential nature of the service, the party seeking exculpation
possesses a superior bargaining power; (v) the party confronts the public
with a standardized adhesion contract of exculpation, with no provisions
allowing a purchaser to pay additional reasonable fees and obtain
protection against negligence; and (vi) as a result of the transaction, the
purchaser’s person or property is placed under the seller’s control,
subject to the seller’s (or his agent’s) risk of carelessness. [Tunkl v.
Regents of the University of California, 60 Cal. 2d 92 (1963); and
see Dalury v. S-K-I, Ltd., 670 A.2d 795 (Vt. 1995)—using a similar
“totality of the circumstances” test to render unenforceable the
exculpatory agreement of a ski resort]
Example: A release of liability contained in a hospital admission
form purporting to “waive” any claim the patient might have for
medical malpractice against the hospital or attending physicians is
contrary to public policy. [Tunkl v. Regents of the University of
California, supra]
Example: A provision in a form lease whereby an apartment house

tenant purported to waive any claim he might ever have against the
landlord for injuries arising out of the landlord’s failure to maintain
common areas for which the landlord was responsible (e.g., elevators,
stairways, etc.) is contrary to public policy. [McCutcheon v. United
Homes Corp., 486 P.2d 1093 (Wash. 1971)]
Example: A release relieving a school district from liability for

students’ injuries, signed as a condition of participation in
interscholastic athletics, is contrary to public policy. [Wagenblast v.
Odessa School District, 758 P.2d 968 (Wash. 1988)]
Compare: A release signed by a new member of a fitness club does

not violate public policy because such facilities are not an “essential
public service” such that an exculpatory clause would be “patently
offensive.” [Seigneur v. National Fitness Institute, Inc., 752 A.2d 631
(Md. 2000)]
(4) Limitation—intentional torts [§849]
Even where valid, exculpatory provisions are enforceable only with respect
194
to negligence claims. They can never be used to excuse a tortfeasor from

liability for intentional or wanton or reckless torts. [Rest. 2d of Contracts
§195(1); and see, e.g., Thomas v. Atlantic Coast Line Railroad, 201 F.2d 167
(5th Cir. 1953); Sommer v. Federal Signal Corp., 79 N.Y.2d 540 (1992)]
c. Implied assumption of the risk by conduct [§850]

In the absence of any contract, the issue is whether the plaintiff, by conduct, can be
held to have voluntarily assumed the particular risk involved. This is the more
common (and more difficult) issue in negligence cases. [Dillard v. Little League
Baseball Inc., 55 A.D.2d 477 (1977)—umpire hit in groin by pitch]
(1) Subjective test [§851]
The plaintiff’s knowledge of the danger and voluntary exposure to it are
measured subjectively—i.e., by what the plaintiff personally was aware of and
intended, and not by what a reasonable person would know and do. However,
the plaintiff’s subjective state of mind may be determined from external
manifestations—words, conduct, etc. [Hildebrand v. Minyard, 494 P.2d 1328
(Ariz. 1972)]
Example: If P attends a baseball or hockey game, most courts hold that in
seeking admission, P must be regarded as having chosen to encounter the
well-known risk of flying baseballs or hockey pucks, which attend such sports.
[Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329 (R.I. 1977); and
see Maddox v. City of New York, 66 N.Y.2d 270 (1985)—professional
baseball player assumed risk of muddy field]
(a) Limitation—plaintiff must fully appreciate risk [§852]
On the other hand, there is no assumption of the risk where, due to age or
inexperience, the plaintiff does not in fact comprehend the danger—even
though a reasonable person might have.
(b) Distinguish—extraordinary risks [§853]
Moreover, one who participates in sporting events does not impliedly
assume the risk of an opponent’s flagrant violations of the rules that result in
serious injuries. [Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. 1975)—soccer
goalie kicked in head]
(2) Knowledge of specific danger [§854]
It must also be shown that the plaintiff was aware of the particular risk by
which she was injured, not merely of danger generally.
Example: The fact that P was aware that the car in which she was riding
was being driven at an excessive speed does not mean that she
195
assumed the risk that another car would rear-end it when the driver stopped
short.
(3) Voluntary assumption [§855]
The plaintiff’s conduct must likewise manifest a voluntary choice to encounter
the risk involved (and implicitly relieve the defendant from the duty of due care);
i.e., the risk is not assumed if the plaintiff has no reasonable alternative.
(a) Involuntary acts [§856]
If it appears that the plaintiff’s decision was dictated by necessity, force, or
fraud, there is no assumption of the risk.
Example: Those who dash into a dangerous situation to save their own
property or the lives or property of others do not “voluntarily” assume
the risk unless the risk is out of all proportion to the value of the interest
sought to be protected. [Cote v. Palmer, 16 A.2d 595 (Conn. 1940)]
(b) Exception—surrender of legal right [§857]
Generally, the plaintiff is not required to surrender a valuable legal right
(such as the use of her own property as she sees fit) simply because the
defendant’s conduct has threatened her with harm if the right is exercised.
Example: P does not “assume the risk” where—to get to work—she
attempts to drive her car out of a driveway that D has negligently
excavated, even though P knows of the danger. (But P’s conduct may be
contributory negligence; see below.) [Conroy v. Briley, 191 So. 2d 601
(Fla. 1966)]
d. Exception—no assumption of risk where plaintiff is member of statutorily

protected class [§858]
Where the defendant’s negligence consists of violation of a statute designed for the
protection of a certain class of persons, a plaintiff who is a member of that class is
deemed legally incapable of assuming the risk—either expressly or by implication.
[Rest. 2d §496F]
Example: A factory’s violation of safety regulations instituted for protecttion of
employees is not excused by an employee’s continuing to work there, even
though the employee knowingly and “voluntarily” chooses to subject herself to the
risk. [Suess v. Arrowhead Steel Products Co., 230 N.W. 125 (Minn. 1930)]
196
(1) Rationale
The fundamental purpose of such statutes is to protect specific persons against
their own inability to protect themselves (e.g., because of lack of judgment or
unequal bargaining power), and if the plaintiff were held to assume the risk, this
purpose would be defeated.
e. Distinguish—plaintiff’s negligence [§859]

There may be both negligence by the plaintiff and assumption of the risk by the
plaintiff in the same case. Under comparative negligence most courts hold that if the
defendant has been negligent, any negligence by the plaintiff is to be compared to
that of the defendant—even if the plaintiff’s negligence is deliberate. [Davenport v.
Cotton Hope Plantation Horizontal Property Regime, 508 S.E.2d 565 (S.C.
1998)—if plaintiff uses a stairway that he knows is dangerous due to defendant
landlord’s negligent failure to replace a bulb, the negligence of the two parties should
be compared under the state’s regime, even though plaintiff knowingly used the
dangerous stairway when he may have had an alternative; but see Muldovan v.
McEachern, 523 S.E.2d 566 (Ga. 1999)—recognizing that it is in the minority in
treating plaintiff’s assumption of risk as a complete bar to recovery in all torts even
though the state has adopted comparative negligence]
Example: Jaywalkers who cross against a traffic light do not voluntarily assume
the risk that drivers will run them down. (Quite the contrary, it is probably
assumed that the drivers will slow down and let them through.)
Example: Accepting a ride with a driver known to be drunk might be

unreasonable depending on the circumstances, but it is not assumption of risk.
[Gonzalez v. Garcia, 75 Cal. App. 3d 874 (1977)—comparative negligence applies
to this situation]
f. Abolition of implied assumption of risk [§860]

In recent years, a growing number of states have concluded that implied assumption
of risk is not a useful doctrine and have therefore abolished it. [Meistrich v. Casino
Arena Attractions, Inc., 155 A.2d 90 (N.J. 1959); Rutter v. Northeastern Beaver
County School District, 437 A.2d 1198 (Pa. 1981)] Instead, what some states
analyze as assumption of risk, others handle as a question of duty or contributory
negligence.
Example: Where P is hurt by a foul ball at a baseball game, some states deny
recovery on the theory that D has met its limited duty (e.g., to provide some
seats behind a screen). Note that under this view, D would win regardless of the
extent of P’s knowledge about the dangers of baseball. [Brown v. San Francisco
Ball Club, 99 Cal. App. 2d 484 (1950)]
(1) Effect—defenses limited [§861]
In these states, once the prima facie case of negligence is established against
197
198
the defendant, the only defense available is that the plaintiff behaved
unreasonably (was contributorily negligent). There is no longer room for
discussion about voluntarily encountering a known risk.
(2) “Primary” and “secondary” assumption of risk [§862]
A few states tend to follow the approach just stated but instead of speaking
directly of “duty” and “contributory negligence,” they speak instead of
“primary” and “secondary” assumption of risk. The issues are exactly the same
despite the different language.
(a) Primary assumption of risk [§863]
This involves a determination that the defendant has met whatever duty the
court thinks appropriate to impose—and thus there is no basis for any
liability.
Example: In a friendly touch football game, D, trying to defend against
a pass, accidentally knocked P over and stepped on her hand. Recovery
was denied. The court held that a person hurt by an inherent risk of a sport
loses because of “primary” assumption of the risk; the defender did not owe
a duty of due care in this case but only a duty not to recklessly or
intentionally hurt P. [Knight v. Jewett, 3 Cal. 4th 296 (1992)] Rationale: In
participant sports cases, a duty of due care would chill the fervor of athletic
competitions. [Crawn v. Campo, 643 A.2d 600 (N.J. 1994); but see
Lestina v. West Bend Mutual Insurance Co., 501 N.W.2d 28 (Wis. 1993)
—adopting negligence as the governing principle in sports injury cases]
(b) Secondary assumption of risk [§864]
Here the court has found a duty of due care and breach. If the defendant
asserts that the plaintiff has also acted unreasonably in the accident, the
issue is one of contributory negligence. Although some courts refer to this
issue as “secondary” assumption of the risk, it operates exactly as does
comparative negligence in that state—either to reduce or possibly bar
recovery. [See Davenport v. Cotton Hope Plantation Horizontal
Property Regime, supra, §859]
E. Effect of Liability Insurance

1. Present “Third Party” Liability Insurance System [§865]
At present, most car owners carry insurance against whatever liability (up to the policy’s
maximum coverage) they may incur to third parties in connection with the operation of
their vehicles (hence, known as “third party” or “liability” insurance). Such insurance is
also carried for homeowner’s liability, products liability (infra), and malpractice, and the
same principles apply.
199
a. General operation of “third party” insurance system [§866]

When an accident covered by third party insurance occurs, the defendant’s insurance
carrier investigates the claims of the injured party and defends any lawsuit that is
filed. The insurer has a duty to defend any lawsuit that might be covered by the
policy, regardless of the claim’s actual merit. Note that the duty exists even if there
may be doubts as to whether the claim is covered by the policy; i.e., the duty to
defend is broader than the duty to pay any judgment. [Voorhees v. Preferred
Mutual Insurance Co., 607 A.2d 1255 (N.J. 1992)]
(1) Insurance carrier’s role in lawsuit [§867]
In most states, the suit is defended in the name of the insured defendant (rather
than in the name of the insurance company), and the jury generally is not told
whether the defendant is, or is not, insured. (See Evidence Summary.)
(a) Direct action against insurer? [§868]
Most liability insurance policies insure the defendant only against liability
established by a judgment against her in a legal action (or a settlement
agreed to by the insurer). Therefore, until a judgment is returned, most
states provide that the injured party (the plaintiff) has no direct action
against the defendant’s insurance company. (A very few states are contra by
statute.)
1) But note
Once a judgment is returned, however, the plaintiff is treated as a third-
party beneficiary of the defendant’s insurance company’s promise to
pay any judgments against the defendant, and hence the plaintiff can sue
the defendant’s insurer directly if it fails to discharge the judgment
against the defendant.
(2) Effect of intentional or “wanton and reckless” conduct [§869]
Most liability insurance policies cover only negligent conduct by a defendant or
strict liability. Hence, in cases where the plaintiff alleges that the defendant was
acting “wantonly and recklessly” (usually in an attempt to claim punitive
damages), the defendant’s insurance carrier may be liable for the compensatory
part of any award but not for the punitive part. If the act was intentional, the
insurer may not be liable for any part of the award.
(a) Note
If the policy terms cover punitive damages, most courts require the insurer
to pay them. [Harrell v. Travelers Indemnity Co., 567 P.2d 1013 (Or.
1977)] However, some states statutorily prohibit insurance company
payment of punitive damages by forbidding coverage of losses caused by the
insured’s willful acts. [Cal. Ins. Code §533; J.C. Penney Casualty
Insurance Co. v. M.K., 52 Cal. 3d 1009 (1991)]
200
b. Insured’s duty of “cooperation” [§870]

An express or implied provision of every liability insurance contract is that the
insured party will “cooperate” with the insurer, so that if the defendant acts
collusively with the plaintiff, fails to testify when required, etc., the insurance carrier
may be able to deny coverage as to any judgment against the defendant.
c. Insurer’s duty of “good faith” in settlement [§871]

Every liability insurance policy has a maximum limit (e.g., $25,000 for injuries to any
one person), and should a judgment be returned that exceeds the limit, the defendant
is personally liable for the excess. Hence, courts today recognize that an insurance
company owes at least a duty of good faith to its insured (the defendant) to attempt
to settle any claims against her within the policy limits, so as to avoid the risk of her
being held personally responsible for satisfying part of the judgment. [Pavia v. State
Farm Mutual Automobile Insurance Co., 82 N.Y.2d 445 (1993)]
(1) Stricter standard imposed by some courts [§872]
Some courts have imposed a more stringent standard of liability on insurers than
the “good faith” rule. Thus, for example, it has been held that the insurer has a
duty to use due care to attempt to settle within policy limits whenever there is a
substantial likelihood of a recovery exceeding those limits. Unreasonable failure
to settle under these circumstances violates the insurer’s duty, even if bad faith is
not shown. [Comunale v. Traders & General Insurance Co., 50 Cal. 2d 654
(1958)]
(2) Effect of insurer’s breach of duty [§873]
If the insurance carrier is held liable for failure to settle within the policy limits, it
may be held liable for the full amount of any judgment subsequently returned
against the defendant (including the excess over policy limits). [See, e.g., Crisci
v. Security Insurance Co., 66 Cal. 2d 425 (1967); Comunale v. Traders &
General Insurance Co., supra]
(a) Special damages also recoverable [§874]
Many states also permit the defendant to recover any special damages
incurred as a result of the insurer’s failure to settle—e.g., the value of
property taken in satisfaction of the excess judgment, or the defendant’s
mental suffering caused by the insurer’s misconduct. [Crisci v. Security
Insurance Co., supra]
(b) Insured may assign claim against insurer [§875]
It is further recognized that the defendant’s cause of action against her
insurance company for failing to make a “good faith” effort to settle is
assignable. Hence, where the plaintiff recovers a judgment in excess of the
defendant’s insurance limits, the defendant (to avoid personal liability for the
excess) will usually assign to the plaintiff her cause of action against her
insurance company. [Critz v. Farmers Insurance Group, 230 Cal. App. 2d
788 (1964)]
201
(3) Distinguish—no duty to third persons [§876]

Most courts hold that the insurer’s duties regarding settlement run only to the
insured, and consequently no third person can sue—even where it was
foreseeable that failure to settle would result in damages (e.g., emotional
distress) to such third person. [Moradi-Shalal v. Fireman’s Fund Insurance
Cos., 46 Cal. 3d 287 (1988)]
(4) Distinguish—tort claims in “first party” insurance [§877]
Some states extend tort claims for “bad faith” to health, fire, accident, and life
insurance, so-called “first party” insurance. [Gruenberg v. Aetna Insurance
Co., 9 Cal. 3d 566 (1973)] Other states refuse to do so. [Spencer v. Aetna Life
& Casualty Insurance Co., 611 P.2d 149 (Kan. 1980); Lawton v. Great
Southwest Fire Insurance Co., 392 A.2d 576 (N.H. 1978)]
(a) Arguments favoring tort claim [§878]
States adopting the tort action rely on the unequal bargaining power of the
parties, the value of delay to the insurer who can earn interest on the money
that is owed, and the analogy of the third party insurance cases.
(b) Argument against tort claims [§879]
States rejecting the tort claim stress the purely contractual aspect of first
party insurance and the existence of statutory and administrative penalties
for failure to settle claims properly.
202
Chapter Three:
Strict Liability
CONTENTS
Key Exam Issues

A. In General §880
B. Animals §882
C. Abnormally Dangerous Activities §898
D. Extent of Liability §914
E. Defenses §920
203
Key Exam Issues
In most fact situations, the plaintiff claims that the defendant has intentionally (Chapter I) or
negligently (Chapter II) caused some harm. Occasionally, though, a defendant may be liable
without any fault on his part. In other words, the defendant is strictly liable.
Your task in a strict liability situation is not like your task in a negligence situation. In a
negligence situation, you must determine whether the elements of a prima facie case are
present. In contrast, your task in a strict liability situation usually is to determine whether the
facts involved fall into one of the recognized categories of cases in which courts are willing
to impose strict liability. In spotting strict liability situations, especially look for the following
facts:
(i) Defendant’s animals cause an injury; or
(ii) Defendant is involved in an abnormally dangerous activity (e.g., using explosives).
When you find a strict liability situation, be sure to consider the limitations on strict liability
(foreseeability of plaintiff and foreseeability of hazard) and the possibility of a defense
(assumption of risk).
A. In General
1. Basis of Liability [§880]
The third broad basis for tort liability involves torts that are neither intentional nor the
result of negligence. Rather, liability is imposed simply because certain types of injuries
happen—even though no one is at fault. The justification for this policy of strict liability
is based on the nature of the activity that caused the harm; if these certain activities cause
harm, the view is that liability should rest on the party best able to avoid its recurrence
—i.e., the defendant.
2. Prima Facie Case [§881]

Prima facie case (the same as for negligence, except as to duty):
• Act or Omission by Defendant
• Duty to Avoid Harm
• Breach of Duty
• Actual Cause (Cause in Fact)
• Proximate Cause (Legal Cause)
• Damages
204
B. Animals
1. Domestic Animals
a. Trespassing livestock [§882]

The possessor of livestock trespassing on the land or chattels of another is strictly
liable for the trespass itself and any harm done by the trespass. [Rest. 2d §504]
(1) “Livestock” [§883]
The term “livestock” is defined as any animal of domestic value that is relatively
easy to control. This includes, e.g., horses, cattle, pigs, and sheep, but not
household pets.
b. Domestic animals (including livestock) with known dangerous propensities

[§884]
The possessor of a domestic animal with a known dangerous propensity not shared
by most members of the animal’s class (e.g., a dog that bites) is strictly liable for all
harm done as the result of that dangerous propensity. The rationale is that the
social utility of keeping an animal known to have atypical dangerous tendencies is
outweighed by the magnitude of the risk involved. [Rest. 2d §509]
(1) Distinguish—normally dangerous domestic animals [§885]
The possessor of a domestic animal belonging to a class of animals that normally
has dangerous propensities (e.g., a bull) is not strictly liable for injuries caused
by that animal’s normal dangerous propensity. Here, the rationale is that the
social utility in keeping these somewhat dangerous animals outweighs their
normal risk and thus possession should not be discouraged by strict liability.
Note however that the possessor of such an animal will be liable for negligence
if he does not use adequate care in keeping the animal. [Rest. 2d §509 cmt. e]
(2) Limitation—harm must result from a known dangerous propensity [§886]
Where strict liability applies, the possessor is liable only for injuries attributable
to the animal’s known dangerous propensity (e.g., knowledge that a horse is
difficult to control may not be sufficient to impose strict liability when the horse
bites someone). [Greeley v. Jameson, 164 N.E. 385 (Mass. 1929)]
c. Domestic animals without known dangerous propensities [§887]

The general view is that the possessor of animals that have not in the past exhibited
dangerous characteristics is not held to strict liability for their acts. It is therefore said
that “every previously well-behaved dog is entitled to one free
205
206
bite”—i.e., only when the owner has reason to know that the dog has vicious
tendencies will strict liability apply. [Gehrts v. Batteen, 620 N.W.2d 775 (S.D. 2001)
—St. Bernards are normally gentle dogs and owners had no reason to know of
dangerous propensities; Jividen v. Law, 461 S.E.2d 451 (W. Va. 1995)
—“rambunctiousness and friskiness” of horse are insufficient to impose strict
liability]
(1) Exception—dog bite statutes [§888]
However, statutes in several states reject the “one free bite” rule as to dogs
(only), imposing strict liability on the owner for injuries suffered (excluding
property damage) by any person bitten by the owner’s dog, even though that
dog was not previously known to have dangerous characteristics. [See, e.g., Cal.
Civ. Code §3342] Some other states have reached the same result by case law.
(a) Note
If the statute is not limited to “biting,” it may apply even where no contact
occurs. [Henry v. Brown, 495 A.2d 324 (Me. 1985)—statute applies where
P fell while stepping back from charging dog]
2. Wild Animals [§889]

The possessor of wild animals (e.g., tigers) is strictly liable for any harm resulting from
the animals’ normally dangerous propensities. [Rest. 3d-PH §21]
a. Knowledge of dangerous propensity [§890]

Scienter (knowledge of the dangerous propensity) is not necessary, provided the
harm results from the normal propensities or characteristics of the animal.
(1) Distinguish—damage resulting from trespass [§891]
The rule regarding “trespass by livestock” (supra, §882) has been made
applicable to wild animals so that, regardless of scienter, a defendant is strictly
liable for any trespass by his wild animal.
b. Exception—animals kept pursuant to public duty [§892]

Where wild animals are kept under a public duty (e.g., in a zoo or under transport by
a common carrier), strict liability does not apply. Negligence must be shown—
although the defendant would be held to a high amount of care. [Cowden v. Bear
Country, Inc., 382 F. Supp. 1321 (D.S.D. 1974); Rest. 2d §517]
3. Persons Protected [§893]

Strict liability clearly applies to injuries inflicted by an animal in public places. However,
if the harm occurs on the defendant’s premises, whether strict liability will be invoked
depends on the status of the injured person:
a. Invitees, licensees [§894]

If a plaintiff enters private property with the express or limited consent of the
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land occupier (e.g., as a guest or business visitor), strict liability clearly is applied.
[McLane v. Northwest Natural Gas Co., 467 P.2d 635 (Or. 1970)]
b. Trespassers [§895]
On the other hand, most courts hold that strict liability does not extend to trespassers
whose presence the owner had no reason to know of or anticipate, and thus, no
recovery may be had for injuries inflicted by the animal. [Rest. 2d §511] (Of course,
if the trespasser’s presence was known, negligence liability would apply; see supra,
§662.)
(1) Limitation—vicious watchdogs [§896]
However, even though a trespasser’s presence is unknown, a landowner may be
liable for injuries by a vicious watchdog—unless adequate warnings of the dog’s
presence were posted. [Rest. 2d §516]
(a) Rationale
The landowner’s privilege to use such dogs for protection of property is
similar to the privilege to use mechanical devices under the same
circumstances (supra, §143)—i.e., absent adequate warnings, the landowner
is liable for the harm done, unless the intruder was in fact threatening death
or serious bodily harm.
(2) Limitation—foreseeable trespassers [§897]
Moreover, the no-liability rule also does not apply if the landowner had reason
to anticipate trespassing upon the property (e.g., where injured person is a
CTULA, or a child trespasser whose presence the owner had reason to foresee;
supra, §§666, 674). In such cases, strict liability will be imposed unless adequate
warnings of the animal’s presence were given. [Rest. 2d §512]
C. Abnormally Dangerous Activities

1. General Rule [§898]
One who maintains an abnormally dangerous condition or activity on his premises or
engages in an activity that presents an unavoidable risk of harm to the person or property
of others may be liable for the harm caused even if the defendant has exercised
reasonable care to prevent the harm. [Rest. 2d §519]
2. “Abnormally Dangerous” Activities [§899]

The problem in these cases is to determine what constitutes an “abnormally dangerous”
activity so as to give rise to strict liability.
a. Origin of rule [§900]
The landmark case of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), held that a
208
person who brings something onto his land that involves a “nonnatural use” of the
land and is likely to cause substantial damage if it escapes will be strictly liable if it
in fact escapes and causes harm.
b. Application under First Restatement—“ultrahazardous activities” [§901]

Under the First Restatement, the key term was “ultrahazardous.” An activity fits
that description if it necessarily involved a risk of serious harm to the person, land, or
chattels of others that could not be eliminated by the exercise of utmost care and was
not a matter of common usage. [Rest. §520]
Example—“ultrahazardous”: Ultrahazardous activities include blasting,
manufacturing explosives, drilling oil wells (in some states), fumigation [Old
Island Fumigation, Inc. v. Barbee, 604 So. 2d 1246 (Fla. 1992)], and setting off
public fireworks [Klein v. Pyrodyne Corp., 810 P.2d 917 (Wash. 1991)].
Compare—“dangerous”: Dangerous activities that are not ultrahazardous in

nature—usually because they are commonly used—include use of fire,
automobiles, firearms, and boilers. [Beck v. Bel Air Properties, Inc., 134 Cal. App.
2d 834 (1955)]
c. Basis for liability under Second Restatement—“abnormally dangerous”

activities [§902]
The Second Restatement changed the critical term to “abnormally dangerous”
activity because the drafters thought the prior term gave too little weight to the
context in which the activity was being carried on. [Rest. 2d §519]
(1) Determinative factors [§903]
Instead of defining when an activity is abnormally dangerous, the Second
Restatement lists the following six factors to be considered and balanced:
(i) Whether the activity involves a high degree of risk of harm;
(ii) The gravity of that risk;
(iii) Whether the risk can be eliminated by the exercise of reasonable care;
(iv) Whether the activity is a matter of common usage;
(v) Whether the activity is appropriate to the place where it is being carried
on; and
(vi) The value of the activity to the community.
[Rest. 2d §520; and see Langan v. Valicopters, Inc., 567 P.2d 218 (Wash.
1977)—applying this section to crop dusting; but see Indiana Harbor Belt
209
Railroad v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990)—
rejecting section in case against shipper of hazardous chemical that leaked from
rail car]
(2) Impact of new terminology? [§904]
It is clear that the Second Restatement offers escapes from strict liability in its
fifth and sixth factors that were not available under the First Restatement—
appropriateness to location and value to the community. [New Meadows
Holding Co. v. Washington Water Power Co., 687 P.2d 212 (Wash. 1984)—
natural gas pipeline] This might affect such extreme cases as a dangerous mine
that supports the economy of an entire town or region.
(a) But note
Several courts have shown reluctance to adopt the Second Restatement’s
softening of strict liability. [See, e.g., Yukon Equipment, Inc. v. Fireman’s
Fund Insurance Co., 585 P.2d 1206 (Alaska 1978)—per se rule of strict
liability for explosion of stored explosives; Koos v. Roth, 652 P.2d 1255
(Or. 1982)—field burning warrants strict liability because society “has other
ways to lighten the burdens of costly but unavoidable accidents on a valued
industry than to let them fall haphazardly on the industry’s neighbors”]
d. Third Restatement standard [§905]

The Third Restatement adopts a two-element approach, deeming an activity
abnormally dangerous if: (i) the activity creates a foreseeable and highly significant
risk of physical harm even when all actors exercise reasonable care; and (ii) the
activity is not a matter of common usage. [Rest. 3d-PH §20]
e. Applications
(1) Airplane ground damage [§906]
Early cases deemed flying to be so dangerous that owners of aircraft were
strictly liable for all harm caused by aircraft flight to persons and property on the
ground.
(a) Modern cases split on this question [§907]
Some courts now hold that aviation has reached such a stage of safety, and
is of such common usage, that the activity should be regulated by negligence
principles. [Crosby v. Cox Aircraft Co., 746 P.2d 1198 (Wash. 1987)]
However, other courts and the Second Restatement still adhere to the earlier
view. [Rest. 2d §520A]
(b) Distinguish—unconventional aviation [§908]
But even those courts that no longer impose strict liability for conventional
flying still impose strict liability for stunt flying, crop dusting, test flights, etc.
[Loe v. Lenhardt, 362 P.2d 312 (Or. 1961)]
210
(2) Common carriers [§909]

Although the Restatement and early cases refused to impose strict liability on a
common carrier required to carry abnormally dangerous cargo [Rest. 2d §521],
recent cases have imposed strict liability in such cases [see, e.g., National Steel
Service Center, Inc. v. Gibbons, 319 N.W.2d 269 (Iowa 1982)].
(3) Handguns [§910]
Appellate courts are virtually unanimous that handguns do not come within the
abnormally dangerous activity doctrine. [Burkett v. Freedom Arms, Inc., 704
P.2d 118 (Or. 1985)]
(a) Exception—“Saturday Night Specials” [§911]
One court has held that cheap guns that have little accuracy or reliability
have so little social utility that they may become the subject of strict liability.
[Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (Md. 1985)—strict liability
for all in the chain of distribution of cheap, unreliable, inaccurate guns to all
persons shot by criminals; but note: this case was sharply limited by statute]
3. Products Liability Cases [§912]

As will be discussed infra (§§952 et seq.), strict liability has been extended to some
claims against suppliers of defective products.
a. Showing of “defect” required [§913]

But note that the liability imposed on the manufacturer or supplier of defective
products is different from that in cases of abnormally dangerous activities: It must
appear that the product was defective. When dealing with damages arising from
blasting cases, impounded water, etc., liability is imposed whether or not there was
any defect.
211
D. Extent of Liability
1. Scope of Duty Owed [§914]
Unlike negligence, the duty owed here is a duty to avoid harm from the animal or the
activity that is classified as “abnormally dangerous.” Liability is therefore imposed for
resulting injuries to person or property, regardless of whether anyone was at fault.
a. Duty owed only to foreseeable plaintiffs [§915]

The duty is owed only to “foreseeable plaintiffs”—i.e., persons to whom a
reasonable person would have foreseen a risk of harm under the circumstances.
[Whitman Hotel Corp. v. Elliott & Watrous Engineering Co., 79 A.2d 591
(Conn. 1951)]
(1) Distinguish—negligence cases [§916]
Although the courts are split over the “foreseeable plaintiff doctrine” in
negligence cases (supra), the doctrine is the majority view in strict liability cases.
b. Duty extends only to foreseeable hazards [§917]

The harm that occurs must result from the kind of danger foreseeable from the
abnormally dangerous animal or activity. Thus, as indicated in the animal cases
(supra), it must flow from the “normally dangerous propensity” of the condition
or thing involved.
Example: Blasting operations conducted by D on his land frightened P’s minks
on adjoining property, causing them to kill their kittens. Although strict liability
would extend to the hurling of rocks or debris from the blasting (foreseeable harm), it
does not apply to the minks’ killing their young, because the result is not ordinarily
expected to occur from blasting operations. [Foster v. Preston Mill Co., 268 P.2d
645 (Wash. 1954)]
2. Actual Cause [§918]
All courts use the same rules regarding actual cause as in negligence cases (see supra,
§§415 et seq.).
3. Proximate Cause [§919]

Virtually all courts apply the same rules of proximate causation in strict liability as they do
in negligence (see supra, §§442 et seq.). [Golden v. Amory, 109 N.E.2d 131 (Mass.
1952)—unforeseeable flood bars liability]
212
E. Defenses
1. Contributory Negligence Traditionally No Defense [§920]
The plaintiff’s own lack of care is not a defense to strict liability, unless he knew of the
danger and his contributory negligence was the very cause of the activity’s miscarrying.
Example: P, knowing he was following D’s dynamite truck, negligently tried to pass
it; a collision ensued, turning the truck over and causing it to explode. P cannot
recover because his negligence was the very reason for the explosion. [Burke v. Fischer,
182 S.W.2d 638 (Ky. 1944)]
2. Comparative Negligence [§921]

Most courts in comparative negligence jurisdictions have reduced the plaintiff’s recovery
in strict liability cases where his injury was caused in part by his own carelessness. (See
further discussion, infra, §1057.)
3. Assumption of Risk Is a Valid Defense [§922]

Any voluntary encountering of a known risk may prevent the plaintiff’s recovery.
Example: P cannot recover for injuries sustained where, knowing the danger, she
teases a leopard or voluntarily puts herself within its reach. [Lehnhard v.
Robertson’s Administratrix, 195 S.W. 441 (Ky. 1917)]
a. Determining “voluntariness” [§923]

Where the defendant’s activity is carried on in part for the plaintiff’s benefit (e.g.,
water or gas pipes maintained partially for his use), the plaintiff’s consent to the risk
(seepage, overflow, etc.) is usually implied—but only to bar strict liability.
(1) “Voluntary” [§924]
There is no “voluntary” assumption where the plaintiff attempts to run from his
house to his car in the driveway, knowing the defendant’s vicious hog is outside.
Rationale: The plaintiff’s remaining a prisoner inside his house would have
meant surrendering his right to move freely on his own property—not a
reasonable alternative. [Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974)]
Chapter Four:
Products Liability
CONTENTS
Key Exam Issues

A. In General §925
B. Liability Based on Intentional Acts §929
C. Liability Based on Negligence §931
D. Strict Liability in Tort §952
E. Liability Based on Breach of Warranty §1069
213
Key Exam Issues
Products liability questions basically come down to an issue of which theory of recovery is
best for the plaintiff. When a defective product causes injury, the manufacturer of the
product, as well as the distributor, wholesaler, and retailer who sold it, may be liable to the
injured person on a number of distinct legal theories—some in tort and some arising from
contract. You will need to consider how well each theory fits your specific fact situation.
Products liability may be based on any of the three previously considered tort bases for
liability: intent, negligence, or strict liability. Also, there are the contract bases (breach of
various warranties). Depending on the nature of the defendant’s conduct, the same injury
may be actionable on several theories. So do not stop analyzing until you have considered
all of the following bases of products liability:
1. Liability based on intentional torts (a battery).
2. Liability based on negligence (harm must be foreseeable and defendant’s conduct must
be unreasonable).
3. Liability based on strict liability (defective product that caused injury).
4. Liability based on breach of an express or implied warranty (especially Uniform
Commercial Code (“U.C.C.”) warranties of fitness for a particular purpose and
merchantability), which is also “strict” in that it does not require fault.
Determining which bases for liability are involved in your exam question is vitally important
because it affects such key issues as:
—Scope of duty owed;
—Defenses assertable (e.g., contributory negligence is no defense to intentional torts);
—Damages recoverable (e.g., punitive damages are not recoverable for negligence or for
behavior without fault); and
—Liability insurance coverage (which may exclude some intentional torts).
A. In General
The law of products liability focuses on the liability of a supplier of a product for
physical harm to person or property caused by defects in the product. (If the product
214
215
simply does not perform as well as expected, causing purely economic loss to the buyer
(see infra, §1050), this is primarily a “sales” problem and is covered in detail in the Sale
and Lease of Goods Summary.)
2. Background [§926]
At early common law, a manufacturer or supplier of a chattel could be held liable for
injuries sustained through its use only to those with whom he was in “privity of
contract.” If there was no “privity,” there was no liability—either in tort or contract.
Thus, an injured person who was not the purchaser of the product could not recover, no
matter how negligent the supplier’s conduct. [See, e.g., Winterbottom v. Wright, 10 M.
& W. 109 (1842)—passenger who was injured when stagecoach collapsed had no cause
of action against contractor who agreed with coach owner to keep it in repair, because
“no privity of contract”]
a. Rejection of privity requirement [§927]

Later, courts began to reject the strict “privity” requirement when dealing with
specific types of chattels: first, with bailed goods (see supra, §§758-761), then with
foodstuffs and any inherently dangerous chattel. Manufacturers and suppliers of such
products were held to owe a tort duty of due care (i.e., liability for negligence)
respecting the condition of the chattel, even as to persons with whom they were not
in “privity of contract” (i.e., users, consumers, bystanders injured through another’s
use of the product, etc.).
b. Modern view [§928]

As discussed below, the courts have now gone beyond negligence concepts and
almost all impose some form of strict liability for any injury sustained through the use
of defectively manufactured products. In a few jurisdictions, this result is reached
through imposition of implied warranty liability (a contract action), but in most it is
regarded as a tort concept. The scope of liability, measure of damages, available
defenses, etc., will vary according to the theory on which liability is imposed.
B. Liability Based on Intentional Acts

1. General Principle [§929]
A manufacturer or supplier who sells a chattel that he knows is defective or dangerous,
without warning of the danger, may be held liable for battery to any person injured
through use or consumption of the product. As long as the manufacturer or supplier
believed the injuries were “substantially certain” to result from the use of the chattel, he
will be held to have intended the consequences of his acts. [Huset v. J.I. Case
Threshing Machine Co., 120 F. 865 (8th Cir. 1903)]
2. Significance—Greater Recovery Potentially Available [§930]

While intent is difficult to establish, it may (if shown) justify a higher recovery; i.e.,
216
the defendant may be liable for punitive damages in addition to damages for the
plaintiff’s physical injuries (see supra, §23). Also the injured party’s contributory
negligence would be no defense.
C. Liability Based on Negligence

Few products liability cases involve intentional misconduct. The more typical problems
concern the scope of liability to be imposed on a manufacturer or supplier for
unintentional injuries caused by the use or consumption of its products.
2. Background—Gradual Abrogation of “Privity” Requirement [§932]

As already discussed, early decisions limited liability to cases in which there was “privity”
between the supplier and the injured party, but this requirement was gradually eroded
and replaced with standard negligence concepts.
3. Impact of MacPherson v. Buick Motor Co.—Liability Based on Foreseeability of

Harm [§933]
Despite earlier inroads on the “privity” requirement, the real establishment of liability for
simple negligence came with Judge Cardozo’s landmark decision in MacPherson v.
Buick Motor Co., 217 N.Y. 382 (1916). There, the plaintiff purchased from a dealer a
car that had been manufactured by the defendant. The car had a defective wheel, which
had been manufactured by a subcontractor. The court: (i) rejected the defendant
manufacturer’s claim that it could not be held liable because there was no privity
between the plaintiff and the defendant, and (ii) held that if a reasonable person would
foresee that the chattel would create a risk of harm to human life or limb if not
carefully made or supplied, the manufacturer or supplier of the chattel is under a duty of
care in its manufacture and supply—and this duty is owed to all foreseeable users.
4. General Scope of Negligence Liability Today [§934]

The MacPherson rule has been adopted in all states and has been extended in several
important respects:
a. Negligent design [§935]

First of all, the doctrine applies not only to negligence in manufacture, but also to
negligence in design—including failure to adequately test, install safety features, and
the like. [Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961)] (See
detailed discussion of design defects, infra, §§961 et seq.)
(1) Limitation—contractors following specifications [§936]
A contractor owes no duty to third persons to judge the plans, specifications, or
instructions that he has contracted to follow, unless they are so obviously
dangerous that no reasonable contractor would follow them. [Hunt v. Blasius,
384 N.E.2d 368 (Ill. 1978)]
217
b. Bystanders [§937]
Although MacPherson held the manufacturer or supplier liable only to foreseeable
users, courts extended liability to all persons foreseeably within the scope of use of
the defective product (e.g., pedestrian injured by defective automobile). [Flies v. Fox
Bros. Buick, 218 N.W. 855 (Wis. 1928)]
c. Property damage [§938]

Furthermore, courts extended the doctrine to property damage—even when there
was no risk of personal injuries. [Dunn v. Ralston Purina Co., 272 S.W.2d 479
(Tenn. 1954)—manufacture of defective animal food that involved foreseeable risk
of harm only to animals and to owner’s business interests]
d. Real property [§939]

Most courts have extended the MacPherson rule to the design and construction of
real property. [Wright v. Creative Corp., 498 P.2d 1179 (Colo. 1972)—home
builder liable for negligence as to defective sliding glass door]
e. Liability of assembler of components manufactured by others [§940]

Most courts hold a supplier who markets a product under the supplier’s name liable
for negligence even though the supplier has only assembled components produced by
others, and a negligently manufactured component has caused the injury. [Rest. 2d
§400]
Example: If Ajax Motors, a car manufacturer, assembles into its cars a steering
control negligently manufactured by XYZ Co., and the defective steering wheel
causes an accident, Ajax is liable for XYZ Co.’s negligence.
(1) Undiscoverable defect [§941]
This rule applies even if the defect could not have been discovered by the
defendant assembler in the exercise of due care. “One who puts out as his own
product a chattel manufactured by another is subject to the same liability as
though he were its manufacturer.” [Ford Motor Co. v. Mathis, 322 F.2d 267
(5th Cir. 1963)]
f. Proving negligence—res ipsa loquitur [§942]

If a manufacturing defect (e.g., missing part) is involved, the injured party may
invoke res ipsa loquitur simply by showing that the defect is of a kind that does not
usually occur in the absence of negligence of the manufacturer or someone for whom
the manufacturer is liable.
Example: P is injured when his dump truck tips over during dumping operations
because of a missing part in the hoist. D, the truck manufacturer, is presumed to
be at fault because the defect is one that does not usually occur in the absence of the
manufacturer’s negligence. [Rennick v. Fruehauf Corp., 264 N.W.2d 264 (Wis.
1978)]
218
5. Role of Dealer or “Middleman” [§943]

There may be situations in which the manufacturer or supplier (“D”) and the dealer or
“middleman” (“X”) will owe concurrent duties of care to the consumer or user (“P”).
a. Where dealer has no reason to know of danger [§944]

A dealer or “middleman” owes no duty to inspect or test chattels manufactured by
another before selling them if she has no reason to know that the chattels may be
dangerous in normal use. [Rest. 2d §402]
Example: A retailer generally owes no duty to inspect or test packaged goods
from a reputable manufacturer prior to their sale, in the absence of a reason to
suspect that something is wrong (although she cannot blind herself to anything that
becomes apparent while she is preparing the goods for sale). [Kirk v. Stineway
Drug Store Co., 187 N.E.2d 307 (Ill. 1963)]
b. Where dealer has reason to know of danger [§945]

However, a dealer or “middleman” who has reason to know that the product may be
dangerous in normal use owes a duty to inspect and test the goods, or at least to
warn the purchaser of the potential danger. [E.L. Kellett, Annotation, Seller’s Duty
to Test or Inspect as Affecting His Liability for Product-Caused Injury, 6 A.L.R.3d 1
(1966); Rest. 2d §401]
Examples: A dealer has at least a duty to warn when:
(i) Goods are purchased from an unreliable source of supply—e.g., dealer

who buys unknown brand of hair dye from bankrupt company. [Outwater
v. Miller, 3 A.D.2d 670 (1957)—duty to warn of uncertain quality]
(ii) Danger is not labeled by the manufacturer—e.g., dealer who resells
poisonous insecticide purchased in bulk from manufacturer.
(iii) Complaints are received from other customers as to the very same
goods. [Catlin v. Union Oil Co., 31 Cal. App. 597 (1916)]
(iv) Goods are those as to which the purchaser normally relies on dealer
inspection prior to purchase, and nature of goods makes it likely that
defects will lead to serious injury—e.g., in purchasing an automobile,
something more than a casual examination may be required. [Williams v.
Steuart Motor Co., 494 F.2d 1074 (D.C. Cir. 1974)]
(1) Effect of dealer’s failure to inspect—manufacturer not excused [§946]

Note, however, that a dealer’s negligence does not supersede the manufacturer’s
liability. The dealer’s failure to inspect or test is regarded as a foreseeable
intervening force, and hence does not affect the liability of the manufacturer.
[Ellis v. Lindmark, 225 N.W. 395 (Minn. 1929)]
219
(2) Distinguish—if dealer actually knows of danger [§947]

On the other hand, if the dealer actually knew that the product was defective
and dangerous, but nevertheless sold it to the purchaser without a warning, most
courts hold that this will relieve the manufacturer of liability for unintended
harm. The dealer’s failure to warn under such circumstances is regarded as so
culpable that it is treated as an unforeseeable intervening force—i.e., a
superseding cause of the ultimate injury which “neutralizes the risk” created by
the manufacturer’s original negligence. [Stultz v. Benson Lumber Co., 6 Cal.
2d 688 (1936)]
(a) Caution—result differs from general rules of proximate cause [§948]
In general negligence cases (supra, §§488 et seq.), it is often foreseeable that
a third party might take criminal advantage of D’s actions; e.g., D’s careless
action renders P unconscious, after which T steals P’s wallet. But in the
products area, it would be extraordinary for a retailer who discovers a
product defect to sell the product nonetheless.
6. Damages [§949]
In a negligence action, the plaintiff can recover for personal injury or property damage
caused by the product. In most states, however, purely economic loss (e.g., product
does not work properly, needs repairs, etc.) is not recoverable in a negligence action;
economic loss can be recovered only in an action for breach of warranty (see infra,
§§1069 et seq.).
a. Punitive damages [§950]

Even in an action initially brought as one for “negligence,” the plaintiff may recover
punitive damages upon showing recklessness (if the plaintiff has given
220
appropriate notice of her intentions). The same is true even if the case is initially
brought as one for “strict liability.” [Fischer v. Johns-Manville Corp., 512 A.2d
466 (N.J. 1986)]
7. Defenses [§951]
As in any other negligence action, the injured party’s contributory negligence or
voluntary assumption of the risk can be asserted as a defense. Thus, if the plaintiff
knowingly or recklessly exposes herself to the danger created by the product, she cannot
recover for her injuries. Similarly, comparative negligence would reduce the plaintiff’s
recovery if the plaintiff is also at fault.
D. Strict Liability in Tort

In recent years, most courts have entirely bypassed warranty and negligence concepts,
and have held manufacturers and suppliers of defective products strictly liable in tort to
consumers and users for injuries caused by the defect. [Greenman v. Yuba Power
Products, Inc., 59 Cal. 2d 57 (1963); Rest. 2d §402A] Almost all strict liability claims
are based on common law principles; however, statutes may explicitly or implicitly create
a strict liability cause of action. [Bencosme v. Kokoras, 507 N.E.2d 748 (Mass. 1987)
—liability for failure to remove lead paint from premises despite defendant’s lack of
notice]
2. Rationale for Strict Liability Action—Maximum Protection Demanded by

Interest in Human Life and Safety [§953]
“Liability without fault” is imposed here as a matter of public policy, due to the grave risk
of harm in placing defective products in the “stream of commerce.”
a. Defendant better able to bear risk [§954]

A defendant manufacturer is usually better able to distribute (or insure against) the
risk of loss than is the innocent consumer; i.e., the manufacturer can better estimate
the risks and spread the cost over his operations or pass it on to the public in the
form of higher prices. [Greenman v. Yuba Power Products, Inc., supra]
b. Negligence action may not be adequate remedy [§955]

Negligence is often too difficult to prove in product cases to be an adequate remedy.
[La Rossa v. Scientific Design Co., 402 F.2d 937 (3d Cir. 1968)]
c. Incentive for safer products [§956]

Moreover, imposing strict liability may increase the incentive for the manufacture and
supply of safer products.
3. Caution—Liability Not Absolute [§957]

Note that the strict liability doctrine requires the plaintiff to prove both a defect in
221
the product that is attributable to the manufacturer or supplier, and that the defect
caused the injury. Hence, although liability is strict, it is not absolute. [Kerr v. Corning
Glass Works, 169 N.W.2d 587 (Minn. 1969)]
4. Caution—Liability May Not Even Be “Nonfault” [§958]

Although the courts and commentators generally speak of this area as one involving
“strict” or “nonfault” liability, this almost certainly is not an accurate description of the
state of the law. The type of “defect” involved may control whether the applicable law is
that of strict liability or of negligence. It appears that the law of strict liability applies
uniformly to “manufacturing” defects; but that “design” defect and “warning” defect
cases are in fact decided as negligence cases, even though the courts rarely discuss the
difference. This is addressed in the following sections.
a. Three kinds of defects [§959]

A product may be defective in manufacture, in design, or in the sufficiency of the
warnings accompanying it.
(1) Manufacturing defects [§960]
In a manufacturing defect case, the product is not in the condition that the
manufacturer intended at the time it left his control; i.e., the product does not
conform to the manufacturer’s own production standards. Liability for this type
of defect is indeed “strict.”
Example: This covers the usual “assembly line” errors in production—cases
in which negligence also would lie, bolstered by res ipsa loquitur. [Welge v.
Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994)—glass peanut butter jar
that shattered “must have contained a defect”]
Example: It also covers situations where there may be no negligence—e.g.,

flaws or impurities in the product that were not the result of lack of due
care.
(2) Design defects [§961]
In a design defect case, the product was in the condition intended by the
manufacturer or supplier, but was designed in such a way that it presented an
undue risk of harm in normal use. Although courts speak of strict liability in
these cases, the identical result would almost always be reached by a negligence
analysis, because the undue risk should have been discovered and prevented by
due care. In the few cases in which this is not true, courts have denied strict
liability. (See infra, §§1022 et seq.)
(a) Variety of defects [§962]
A product may be defective by posing an unreasonable risk to consumers
[Matthews v. Lawnlite Co., 88 So. 2d 299 (Fla. 1956)—folding arm of
metal rocking chair slices off occupant’s fingers], or by
222
not protecting against foreseeable risks, such as inadequate safeguards on an

industrial machine.
1) Limitation—normal wear and tear [§963]
The defendant will not be held liable, however, for manufacturing or
selling a product that simply wears out with normal use. [Savage v.
Jacobsen Manufacturing Co., 396 So. 2d 731 (Fla. 1981)—nonskid
surface on tractor dismounting platform worn away]
2) Application—handguns [§964]
A product, such as a handgun, that functions as intended and is
dangerous in its ordinary use, has no defect and cannot give rise to
liability based on defect. [Kelley v. R.G. Industries, Inc., supra, §911]
(b) “Crashworthiness” [§965]
A manufacturer can be held liable for failure to design its product so as to
minimize foreseeable harm caused by other parties or conditions. For
example, an auto manufacturer may be liable for not designing its cars to
withstand at least some highway crashes caused by negligent drivers
(including the buyer). [Larsen v. General Motors Corp., 391 F.2d 495
(8th Cir. 1968)]
Examples: Manufacturers have been held liable for designing a gearshift
lever that impaled the driver upon collision [Mickle v. Blackmon, 166
S.E.2d 173 (S.C. 1969)]; a fuel tank that caught fire following a “rear-end”
collision [Nanda v. Ford Motor Co., 509 F.2d 213 (7th Cir. 1974)]; and a
horn cap that came off the steering wheel, exposing sharp prongs that
caused injuries greater than the driver otherwise would have received from a
collision [Horn v. General Motors Corp., 17 Cal. 3d 359 (1976)].
Example: Motorcycles may be defective for lack of crash bars to

protect the driver’s legs. [Camacho v. Honda Motor Co., 741 P.2d
1240 (Colo. 1987)]
(c) Approaches to design defects [§966]
The elements of a design defect case depend on the standard used.
1) “Risk/utility” test [§967]
Under the prevailing approach, called a “risk/utility” test, the question
for the jury is whether the product’s risks outweigh its utility. A
significant aspect of this inquiry is whether the defendant could have
removed the danger without serious adverse impact on the product’s
utility and price. [Phillips v. Kimwood
223
Machine Co., 525 P.2d 1033 (Or. 1974); and see Dawson v. Chrysler
Corp., 630 F.2d 950 (3d Cir. 1980), cert. denied, 450 U.S. 959 (1981)]
a) Factors [§968]
Among the determinative factors are:
(i) Usefulness of the product;
(ii) Type and purpose of the product (functional utility of design);
(iii) Style, attractiveness, and marketability of the product
(psychological utility);
(iv) Number and severity of injuries actually resulting from the
current design (social cost);
(v) Cost of design changes to alleviate the problem (safety cost
—measured in both price and reduced utility of the product);
(vi) User’s anticipated awareness of inherent dangers in the
product and their avoidability; and
(vii) Feasibility of spreading the loss by adjustments in the
product’s price.
[Dawson v. Chrysler Corp., supra; Dreisonstok v.
Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974);
Volkswagen of America, Inc. v. Young, 321 A.2d 737 (Md. 1974)]
b) Note
In California, the manufacturer has the burden of proving that the
benefits of a product’s design outweigh the risks of danger inherent
in that design. [Barker v. Lull Engineering Co., 20 Cal. 3d 413
(1978)]
2) “Consumer expectation” test [§969]
Under an alternative approach, plaintiffs must prove that the product did
not perform as safely as an ordinary consumer would have expected.
[Toney v. Kawasaki Heavy Industries, Ltd., 975 F.2d 162 (5th Cir.
1992)—claim barred because ordinary consumer would have realized
danger of motorcycle without leg guards; but compare Camacho v.
Honda Motor Co., supra, §965—claim for same danger was allowed
under the “risk/utility” test]
a) Applicability to bystanders [§970]
The courts are split over whether the consumer expectation
224
test is relevant when the victim was not the buyer or user. [Compare
Ewen v. McLean Trucking Co., 706 P.2d 929 (Or. 1985)—
pedestrian struck by truck claimed to have poor visibility, with Batts
v. Tow-Motor Forklift Co., 978 F.2d 1386 (5th Cir. 1992)—
because danger was obvious to ordinary buyer, product is not
defective and no suit lies by bystander whether or not bystander
knew or should have known of danger]
b) Food cases [§971]
The consumer expectation test is widely applied in food cases to test
for defects. [Jackson v. Nestle-Beich, Inc., 589 N.E.2d 547 (Ill.
1992)—whether chocolate-covered pecancaramel candy with hard
pecan shell inside was defective depends on the reasonable
expectation of buyers; but see Mexicali Rose v. Superior Court, 1
Cal. 4th 617 (1992)—if tooth broke on foreign substance (e.g.,
glass) inside chicken enchilada P need not prove negligence, but if
tooth broke on natural substance (e.g., chicken bone) P must prove
negligence]
3) Combined approach [§972]
Some courts explicitly adopt a combined view under which recovery is
permitted if the plaintiff establishes either: (i) that the product failed to
perform as safely as an ordinary consumer would expect when it is used
in an intended or reasonably foreseeable manner; or (ii) that the
product’s design was defective under the risk/utility analysis, above.
[Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973)]
a) Limitation—everyday experience [§973]
Some courts permit the plaintiff to choose between the two
approaches only when the “everyday experience of the product’s
users permits a conclusion that the product’s design violated
minimum safety assumptions.” [Soule v. General Motors Corp., 8
Cal. 4th 548 (1994)—consumer expectation theory not available
concerning to what extent a car’s left front quadrant will collapse in a
crash because not within the consumer’s everyday experience] In
such a case, the plaintiff must pursue the risk/utility theory.
b) Handguns [§974]
The impact of a court’s choice between the consumer expectation
and risk/utility tests is illustrated by some of the recent handgun
cases. For example, where a child is killed by the accidental
discharge of a handgun, application of the risk/utility test might result
in liability of the manufacturer—
225
the benefits of child safety features might be found to outweigh their
costs. Many courts, however, have decided instead to apply the
consumer expectation test to handguns, holding that guns that fire
when the trigger is pulled are working exactly as consumers expect
them to work. [Halliday v. Sturm, Ruger & Co., 792 A.2d 1145
(Md. 2002)]
4) “Reasonable alternative design” test [§975]
The Second Restatement, drawing heavily on warranty analysis, was
based on consumer expectations. This meant that patent dangers were
not actionable. As noted above, the courts have tended to move away
from that position to one that evaluates risk/utility and the feasibility of
alternatives. The Third Restatement has moved more sharply in that
direction by using only the “reasonable alternative design” approach
(except in cases involving food, in which the consumer expectation test
applies). [Rest. 3d of Torts: Products Liability (“Rest. 3d-PL”) §2 &
cmt. h (1998)] Under this test, a product is defective if foreseeable risks
of harm could have been reduced by adoption of a reasonable
alternative design, the omission of which renders the product not
reasonably safe. This means that if the greater safety provided by an
alternative design outweighs its disadvantages (e.g., more costly, less
attractive), the defendant’s design is defective. This reasonable
alternative design test is quite similar to the risk/utility test, except that
the risk/utility test does not require proof of an alternative design.
226
(d) Dangers not foreseeable at time of marketing (scientifically

unknowable risks) [§976]
Whatever test of defect is used, a critical question is whether to weigh the
factors as of the time of manufacture or as of the time of injury or trial. In
negligence cases, the proper time to use is that of manufacture and release
of the product, because the courts are explicitly judging the defendant’s
behavior. In so-called strict liability cases, the courts are rarely explicit about
the relevant time because “negligence” is said not to be the test. In fact,
however, in cases in which some crucial new information has been
discovered after the product’s release, the courts generally focus on the
defendant’s conduct after the crucial information appeared.
1) Dominant approach—reasonable human skill [§977]
The overwhelming view denies strict liability where the danger was
something the manufacturer could not have guarded against “by the
application of reasonable, developed human skill and foresight.” [Rest.
2d §402A cmt. j; Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633 (Md.
1992); Feldman v. Lederle Laboratories, 479 A.2d 374 (N.J. 1984),
retreating from Beshada v. Johns-Manville Products Corp., 447 A.2d
539 (N.J. 1982)—D was liable for risks unknowable at time of D’s
actions; but see Johnson v. Raybestos-Manhattan, Inc., 740 P.2d 548
(Haw. 1987)—following Beshada]
(e) Discovery of danger [§978]
Even if the state does not impose liability for unknowable dangers, when the
scientifically unknowable risk becomes discoverable, the manufacturer or
supplier may be liable for negligence.
1) If the danger feasibly may be eliminated, the manufacturer must use
due care to do so before continuing to market the product; otherwise it
faces liability for selling a defective product. (See supra, §967.)
2) If the risk cannot be eliminated, the product is unavoidably unsafe.
The manufacturer must then provide a suitable warning or, if the danger
outweighs the benefits from the product, discontinue distribution
altogether. (See infra, §983.)
3) A manufacturer is under a duty to take reasonable steps to warn
earlier purchasers of already marketed products about defects that only
recently became discoverable. [Patton v. Hutchinson Wil-Rich
Manufacturing Co., 861 P.2d 1299 (Kan. 1993)—duty imposed to use
due care to warn about safety hazards discovered after sales; but see
Romero v. International Harvester Co., 979 F.2d 1444 (10th
227
Cir. 1992)—no duty to notify buyers of earlier model that new safety
devices have been developed to handle a long-known safety problem]
(3) Inadequate warnings [§979]
In addition to the actual product itself, defects may arise from packaging and
inadequate instructions, warnings, labels, etc. Inadequate warnings may make a
product defective when the dangers are not apparent to consumers and users.
[Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995)—must warn
against danger of even moderate consumption of alcoholic beverages while
taking Tylenol; Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir.
1968)—failure to warn user that polio vaccine gave polio to a certain number of
recipients; Emery v. Federated Foods, Inc., 863 P.2d 426 (Mont. 1993)—must
warn against risk that young children may choke eating marshmallows]
(a) Unexpected dangers [§980]
The “danger” must be something that a reasonable user would have no
reason to expect or anticipate in the product.
Example: The manufacturer of a flight of steps does not have a duty to
warn of the dangers posed by use of the steps without handrails because
those dangers are patently obvious. [Lorfano v. Dura Stone Steps, Inc.,
569 A.2d 195 (Me. 1990)]
Example: A manufacturer of an above-ground swimming pool has no

duty to warn of the danger of diving into the pool if it reasonably
perceives that the potential danger is readily apparent or would be disclosed
by casual inspection. [Glittenberg v. Doughboy Recreational Industries,
491 N.W.2d 208 (Mich. 1992)]
Example: The danger of an unlocked pilot seat during the takeoff of

aircraft is sufficiently obvious that the defendant manufacturer could not
be held liable for failure to provide additional warning, especially where it
had taken other safety precautions. [Argubright v. Beech Aircraft Corp.,
868 F.2d 764 (5th Cir.), cert. denied, 493 U.S. 934 (1989)]
Compare: On the other hand, it may be reasonable to expect a martini

olive to be pitted, so that strict liability might apply when a customer
breaks her tooth while biting into that kind of olive.
1) Unexpected means of harm [§981]
Even where a product warns of a risk of harm, a court might require the
warning to specify the means by which the harm would come about.
228
Example: If a miter saw is protected by blade guards and contains a

warning not to remove them, a plaintiff might argue that he
reasonably thought the warnings were geared to protect inexperienced
users from the danger of cutting themselves—not to protect from the
danger of the blade flying from the spindle if the guards were not in
place. [Hood v. Ryobi America Corp., 181 F.3d 608 (4th Cir. 1999)—
warning was adequate despite this argument]
2) Unanticipated danger [§982]
If the danger is also unexpected by the defendant because it could not be
anticipated, most courts will analyze it as a negligence question, as with
design defects, supra. Just as virtually no court expects manufacturers to
design a product with unknowable risks in mind, virtually no court
expects manufacturers to warn about the unknowable. [Feldman v.
Lederle Laboratories, supra, §977; but see Carlin v. Superior Court,
13 Cal. 4th 1104 (1996)—attempting to identify a standard more
demanding than negligence but less severe than strict liability in the case
of an unknown danger]
(b) Unavoidably unsafe products [§983]
Many useful products are unavoidably unsafe (e.g., knives), but this does
not render them “defective”—because there is no safer way to make them.
1) Relation to design defect [§984]
It is clear that suppliers cannot avoid liability for a design defect by
giving an adequate warning. In states that follow the risk/utility
approach, an adequate warning may suffice to avoid liability only if the
product’s design is not defective under that test. [Camacho v. Honda
Motor Co., supra, §969]
Example: Strict liability has been imposed for marketing short-
burning dynamite fuses without suitable warning, the danger from
such fuses being one that would not be apparent to or expected by the
normal user. [Canifax v. Hercules Powder Co., 237 Cal. App. 2d 44
(1965)]
a) Distinguish—consumer expectation test [§985]
Under the consumer expectation test, however, the obviousness of a
danger may well make the product nondefective. In such a situation,
there would be no need to warn to avoid liability. [Sterling Drug,
Inc. v. Yarrow, 408 F.2d 978 (8th Cir. 1969)—duty to warn
patient’s doctor about side effect]
229
(c) Testing the adequacy of warnings [§986]

A warning attached to an unreasonably dangerous product may be
inadequate if, e.g., it does not specify the risk the product presents, it is
inconsistent with how the product is to be used, or it does not give the
reason for the warning. [MacDonald v. Ortho Pharmaceutical Corp., 475
N.E.2d 65 (Mass. 1985)—warning on oral contraceptive must include
mention of “stroke”]
1) Limitation—special users [§987]
Although warnings usually must be written for the ordinary user
[Laaperi v. Sears, Roebuck & Co., 787 F.2d 726 (1st Cir. 1986)], a
supplier may take into account the nature of a special clientele
[Mackowick v. Westinghouse Electric Corp., 575 A.2d 100 (Pa.
1990)—warning on electrical capacitor need not warn of dangers
generally known to electricians].
2) Excessive warnings [§988]
Although it often seems virtually costless to add a marginal warning to a
product [Moran v. Faberge, Inc., 332 A.2d 11 (Md. 1975)—duty to
warn of danger of pouring cologne over candle], courts are increasingly
recognizing that excessive warnings may reduce the impact of important
warnings [Cotton v. Buckeye Gas Products Co., 840 F.2d 935 (D.C.
Cir. 1988)—if every foreseeable danger needed a warning, the “list of
foolish practices warned against would be so long, it would fill a
volume”].
(d) Testing who must receive warning [§989]
Usually the warning must reach the person at risk from the danger.
[McCullock v. H.B. Fuller Co., 981 F.2d 656 (2d Cir. 1992)—supplier of
glue to bookbinding plant must warn those workers who come in contact
with the glue of its dangers; but see Mazur v. Merck & Co., 964 F.2d 1348
(3d Cir. 1992)—manufacturer met its duty to warn by imposing such a duty
in its contract with the distributor]
1) Learned intermediary exception [§990]
Most courts hold that in the case of pharmaceuticals, an adequate
warning need reach only the prescribing physician. [Felix v. Hoffmann-
LaRoche, Inc., 540 So. 2d 102 (Fla. 1989); but see MacDonald v.
Ortho Pharmaceutical Corp., supra—warning required by FDA must
reach patient] Some courts follow a similar rule as to the supplying of
bulk products. [Adams v. Union Carbide Corp., 737 F.2d 1453 (6th
Cir.), cert. denied, 469 U.S. 1062 (1984); but see Hunnings v. Texaco,
Inc., 29 F.3d 1480 (11th Cir. 1994)—bulk supplier must try to assure
that warnings on bulk container are repeated as product is subdivided
into smaller containers]
230
5. Scope of Liability [§991]

The developing case law has broadened the application of strict tort liability as follows.
(See infra, §§1305-1312, for statutory limitations on strict tort liability.)
a. Parties liable—commercial suppliers [§992]

Any party who causes the product to “enter the stream of commerce” or “passes it
on” in the stream of commerce—i.e., all participants in the marketing of the
product—may be held strictly liable.
(1) Applications
(a) Sellers [§993]
The doctrine thus applies to retailers and distributors, as well as
manufacturers. Each is “an integral part of the marketing enterprise,” and
therefore must share the business risk with the manufacturer. [Vandermark
v. Ford Motor Co., 61 Cal. 2d 256 (1964)]
(b) Lessors [§994]
Likewise, the commercial bailor or lessor of a defective chattel may be held
strictly liable for injuries caused by the defect. [Price v. Shell Oil Co.,
supra, §761]
1) Limitation—landlords [§995]
Landlords are not treated as bailors or lessors of the furnishings or
fixtures that come with a rental unit. [Peterson v. Superior Court, 10
Cal. 4th 1185 (1995)]
2) Limitation—financiers [§996]
When a financier of a commercial deal becomes a “lessor” to
231
protect a security interest, most courts refuse to apply strict liability.

[Nath v. National Equipment Leasing Corp., 439 A.2d 633 (Pa.
1981)]
(c) Assemblers of component parts [§997]
As in negligence cases (see supra, §940), the manufacturer is responsible for
the safety of all component parts. Hence, although the manufacturer only
assembles those parts into a finished product, she can be held strictly liable
for defective components supplied by others. The seller of a defective
component part, of course, also may be liable.
(d) Contractors [§998]
Although usually it is not negligent for a contractor to follow most
specifications (see supra, §936), different considerations may apply in strict
liability. Because the product is the issue, a contractor who provides a
“defective” product may be liable. [Michalko v. Cooke Color &
Chemical Corp., 451 A.2d 179 (N.J. 1982)—liability imposed on
contractor who rebuilt machine to specifications but without feasible safety
devices and without warning about remaining nonobvious danger]
(e) Successors in interest to manufacturers of defective products [§999]
Normally, a company that has purchased the assets of a prior manufacturer,
without expressly or impliedly assuming its liabilities, is not liable for injuries
caused by defects in the predecessor’s products. [Lemire v. Garrard
Drugs, 291 N.W.2d 103 (Mich. 1980)—successor in interest to drugstore
owner not liable for prior sale of defective drug] But most courts hold the
new company strictly liable where: (i) the deal was a merger or
continuation of the old corporation; (ii) the buying company agreed to
assume the seller’s liability; or (iii) the sale was a fraudulent attempt by the
seller to escape liability. [Nissen Corp. v. Miller, 594 A.2d 564 (Md. 1991)]
(f) Sellers of used products [§1000]
Sellers of used products in some jurisdictions may be strictly liable for safety
defects attributable to the design or manufacture if they conflict with the
purchaser’s reasonable expectations. In these cases an “as is” disclaimer
does not shield the sellers from liability. [Turner v. International Harvester
Co., 336 A.2d 62 (N.J. 1975)—used truck; Rest. 3d-PL §8]
1) But note
Some courts bar strict liability against sellers of used products in the
absence of representations of quality, because buyers of used products
cannot reasonably expect the products to be free
232
of defects. [Grimes v. Axtell Ford Lincoln-Mercury, 403 N.W.2d 781

(Iowa 1987)]
2) Distinguish—modified or misused products [§1001]
A separate question arises where the defect occurs not in the original
design or manufacture but through modification, dilapidation, or misuse
between the original and second sales. In such cases, strict liability is
rarely imposed on the seller. [LaRosa v. Superior Court, 122 Cal. App.
3d 741 (1981)—used punch press sold 16 years after manufacture]
(g) Franchisors [§1002]
Even though franchisors do not normally provide the bulk of the goods sold
by franchisees, they still may be liable for product defects, particularly when
they retain some control over franchisees’ behavior. [Kosters v. Seven-Up
Co., 595 F.2d 347 (6th Cir. 1979)]
(h) Trademark licensors [§1003]
A trademark licensor that participates in the process of designing and
marketing the defective product may be strictly liable even if the licensor did
not manufacture the product. [Torres v. Goodyear Tire & Rubber Co.,
786 P.2d 939 (Ariz. 1990)]
(2) Distinguish—noncommercial suppliers [§1004]
Strict liability applies only to persons regularly engaged in the business of
manufacturing, selling, or leasing the product in question. Thus, persons who
make only an occasional sale or bailment (e.g., those who sell their own used
car or lend it to another) would not be liable on this theory. [Rest. 2d §402A
cmt. f; and see Stiles v. Batavia Atomic Horseshoes, Inc., 81 N.Y.2d 950
(1993)—no strict liability for sale of used punch press where D’s normal
business was making horseshoes and it did not regularly sell used products]
(a) Endorsers of products [§1005]
Similarly, one who merely gives commercial endorsement to a product
(e.g., the “Good Housekeeping Seal of Approval”) may be liable on a theory
of negligent misrepresentation (see infra, §1655), but generally is not liable
in warranty or strict liability in tort if the product proves defective.
Rationale: The endorser has not put the defective product into the stream of
commerce. [Hanberry v. Hearst Corp., 276 Cal. App. 2d 680 (1969)]
(b) Publishers of advertising [§1006]
In the absence of a guaranty or warranty, a publisher is not strictly liable for
defects in goods advertised in its publications. [Yuhas v. Mudge, 322 A.2d
824 (N.J. 1974)]
233
(c) Auctioneers [§1007]

Auctioneers are generally not held to be sellers for purposes of strict liability.
[Musser v. Vilsmeier Auction Co., 562 A.2d 279 (Pa. 1989)]
b. Parties who may invoke liability

(1) Ultimate user or consumer [§1008]
The ultimate user or consumer, as well as the purchaser, clearly may invoke the
doctrine. Thus family members, employees, guests, etc., of the purchaser are
protected. [Alvarez v. Felker Manufacturing Co., 230 Cal. App. 2d 987
(1964); Rest. 2d §402A]
(a) Note
Passengers in a car, as well as the driver, are treated as “users.”
(2) Bystanders [§1009]
Virtually all states hold that any person injured by a defective product can
invoke strict tort liability—e.g., pedestrian hit by a car whose brakes have failed.
[Codling v. Paglia, 32 N.Y.2d 330 (1973)]
(a) Rationale
Bystanders should be entitled to at least as much protection as the purchaser
or user of the product, because unlike the purchaser or user bystanders did
not have an opportunity to inspect for defects prior to injury. Furthermore,
because the manufacturer’s losses can be covered by insurance or passed on
to the public in the form of increased costs, there is no economic reason for
treating bystanders worse than purchasers. [Elmore v. American Motors
Corp., 70 Cal. 2d 578 (1969)]
(3) Rescuers [§1010]
There is some case authority allowing recovery by persons injured while
attempting to aid another who was imperiled by a defective product. [See, e.g.,
Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460 (1969)]
(4) Business firms [§1011]
Courts are split over whether business entities may recover from each other for
property damage on the basis of strict liability. In most cases, where the parties
in a commercial setting are of equal bargaining strength and have negotiated, tort
actions, whether for strict liability or for negligence, have been foreclosed when
the claim is solely for lost profits or other economic loss. [See, e.g., Spring
Motors Distributors, Inc. v. Ford Motor Co., 489 A.2d 660 (N.J. 1985)] A
few courts go further, barring tort actions even when the claim is for damage to
property as well as economic loss. [See, e.g., Hapka v. Paquin Farms, 458
N.W.2d 683 (Minn. 1990)—U.C.C. controls action for damage to commercial
farmers’ property from allegedly defective seeds]
234
c. Liability extends only to “products” [§1012]

Strict tort liability applies only where the injuries or damages have resulted from a
defective “product.” However, the courts have taken an expansive view of what
constitutes a “product”:
(1) Products in natural state [§1013]
Although most products are manufactured or processed in some way, this is not
essential; strict liability may apply to products in their natural state (e.g., sales of
unprocessed, poisonous mushrooms). [Rest. 2d §402A cmt. e]
(2) Real property as “product” [§1014]
As originally formulated by the courts, the doctrine of strict tort liability applied
only to defective goods. However, courts have extended such liability to defects
in the design or construction of mass-produced buildings (i.e., tract homes). [Del
Mar Beach Club Owners Association v. Imperial Contracting Co., 123 Cal.
App. 3d 898 (1981)—owners stated strict liability claim for design and
construction of building complex on unstable bluff; Schipper v. Levitt & Sons,
207 A.2d 314 (N.J. 1965)—guest in home injured by boiler explosion]
(3) “Products” vs. “services” [§1015]
Strict tort liability does not apply to the rendition of services any more than does
warranty liability (see infra, §1079). Thus, a passenger injured in an air crash
cannot invoke strict liability if the cause of the crash was pilot error or improper
repairs, but she can if the crash was due to a defect in the design or manufacture
of the plane.
(a) Negligent installation, service, or use of nondefective product [§1016]
Courts refuse to apply strict liability where the product itself is not defective
and the injury is caused by the manner in which the product has been
installed, serviced, or used. [Hinojasa v. Automatic Elevator Co., 416
N.E.2d 45 (Ill. 1980)—nonmanufacturer-installer of elevator; Hoover v.
Montgomery Ward & Co., 528 P.2d 76 (Or. 1974)—tire dealer mounted
nondefective tire on car]
(b) Professional conduct [§1017]
Strict liability does not apply to a physician’s diagnosis or treatment [Hoven
v. Kelble, 256 N.W.2d 379 (Wis. 1977)] or to a pharmacist’s sale of
prescription drugs [Murphy v. E.R. Squibb & Sons, 40 Cal. 3d 672
(1985)].
(c) Hybrid conduct [§1018]
If the defendant is providing services and a product, the courts look for the
dominant aspect. [Newmark v. Gimbel’s, Inc., 258 A.2d 697 (N.J. 1969)
—strict liability against beauty salon that applied defective hair solution to
customer’s head]
235
(d) Electricity [§1019]

Electric current flowing through high voltage transmission lines is not a
product for this purpose. [Fuller v. Central Maine Power Co., 598 A.2d
457 (Me. 1991)]
(e) Blood [§1020]
Almost all states have passed statutes that bar courts from applying strict
liability (or breach of warranty) in cases involving claimed defects (such as
hepatitis virus or AIDS-related virus) in transfused blood. Plaintiffs in such
cases must prove negligence. [See, e.g., Zichichi v. Middlesex Memorial
Hospital, 528 A.2d 805 (Conn. 1987)]
(4) Product in stream of commerce [§1021]
Remember that the “product” must have entered the stream of commerce to
result in strict liability. Thus, where a plaintiff is injured by an experimental
model of a machine that has been advertised but not yet sold, its manufacturer
cannot be held strictly liable. [Woods v. Luertzing Corp., 400 A.2d 562 (N.J.
1979)]
d. Liability extends only to “defective” products [§1022]
The area of greatest difficulty is what makes a product “defective” for purposes of
imposing strict liability. This in turn depends on two separate issues: (i) the types of
defect, and (ii) the standard used to determine the defect. The first of these two—
manufacturing defects, design defects, and defects due to lack of adequate warning—
were discussed supra, §§959 et seq. The following sections consider the second
issue, the standard to be applied.
(1) Basic approaches
(a) Restatement approach—“defect” plus “unreasonable danger” [§1023]
The Restatement recognizes a product as “defective” only if it is
“unreasonably dangerous,” meaning that the defect that caused the
plaintiff’s injury must be something other than what a reasonable person
would expect in normal use. [Rest. 2d §402A cmts. g, i]
1) Latent vs. patent defects [§1024]
This “consumer expectation” approach, literally applied, would insulate
from liability any product that is patently dangerous.
236
a) Modern view [§1025]

However, as discussed supra, most courts no longer bar recovery
simply because a defect was patent. [Nichols v. Union Underwear
Co., 602 S.W.2d 429 (Ky. 1980)—consumer knowledge only one of
several factors that determine unreasonableness; but see Curtis v.
General Motors Corp., 649 F.2d 808 (10th Cir. 1981)—buyer of
convertible vehicle cannot recover for rollover injuries even though
available safety devices were not installed]
b) Significance of modern view [§1026]
Because most states follow either the “risk/utility” test (supra, §967)
or the combined approach (supra, §972), they have implicitly
rejected the narrow Restatement view that allowed recovery only for
latent dangers. Note however that some of these states may still
decide to adopt the Restatement’s requirement that any alleged
danger be “unreasonably dangerous” before finding the product
“defective.”
(b) Alternative approach—“defect” alone [§1027]
The California courts have led a strong movement that rejects the
Restatement terminology of “unreasonable danger” because of possible
confusion with the concept of “unreasonable” as used in negligence cases.
Under this view, an action lies for injuries from a defect that may not be
unreasonably dangerous in terms of foreseeability.
Example: When the racks in the back of a bakery truck came loose in a
crash, hurling the driver through the windshield, the driver need only
prove that defective metal clamps caused the dislodging in order to establish
the required defect; he need not show that it was foreseeable that such
clamps posed a risk of personal injury. [Cronin v. J.B.E. Olson Corp., 8
Cal. 3d 121 (1972)]
(2) Misuse [§1028]
Regardless of what kind of “defect” is claimed, it must have arisen during the
normal or foreseeable use of the product. A manufacturer is not to be held
liable for all possible harms caused by its product, but only for harms caused
through its intended or foreseeable use. [Schemel v. General Motors Corp.,
384 F.2d 802 (7th Cir. 1967)—no liability for car that went out of control at 115
m.p.h.; but see Ellsworth v. Sherne Lingerie, Inc., 495 A.2d 348 (Md. 1985)
—wearing nightgown inside out is foreseeable use]
(a) “Normal use” [§1029]
“Normal use” has a broader meaning than “intended use.” A product
237
may involve no risk of harm when used as intended but a serious risk when
used for other purposes (e.g., laundry products may be safe when used for
cleaning purposes, but may contain caustic chemicals that could be fatal if
swallowed by children). A manufacturer must foresee a certain amount of
misuse or carelessness by customers, and thus must warn them of any
dangers that could be created by such use, or must build into the product
appropriate safety devices. To the extent unintended uses are reasonably
foreseeable, the product may be adjudged “defective” if adequate warnings
are not given or if feasible safety measures are not taken (e.g., use of child-
proof top). [Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971)—strict
liability imposed for failing to warn purchasers that hair rollers would
explode if overheated; Reid v. Spadone Machine Co., 404 A.2d 1094
(N.H. 1979)—strict liability for design change on guillotine-like cutting
machine that encouraged dangerous use by two workers, rather than safe
use by one worker at a time]
(b) Modifications by others [§1030]
If it is foreseeable that the buyer, after sale, will modify the chattel
purchased in a dangerous way, the supplier may still be responsible for harm
caused if the product “invited” such modification. [Liriano v. Hobart
Corp., 92 N.Y.2d 232 (1998)—plaintiff employee in grocery’s meat
department could sue for failure to warn of consequences of removing
safety guard on meat grinder or working without a guard]
(c) Distinguish—extreme misuse [§1031]
In some cases, however, the misuse may be so extreme that the defendant
need not make any warnings or take other safety precautions against it.
[Venezia v. Miller Brewing Co., 626 F.2d 188 (1st Cir. 1980)—eight-year-
old child injured when he threw beer bottle against telephone pole and it
shattered; no liability]
(3) Abnormal reactions [§1032]
Highly unusual reactions to a product do not render it “defective.” However,
this refers only to the situation where a plaintiff’s reaction is so bizarre or
unexpected that it could not reasonably have been anticipated or guarded against.
[Mountain v. Procter & Gamble Co., 312 F. Supp. 534 (E.D. Wis. 1970)—
with over 200 million bottles of shampoo sold, only two confirmed allergic
reactions before P’s reaction]
(a) Distinguish—not highly unusual reaction [§1033]
On the other hand, if the reaction is shared by any significant number of
potential users—even a small percentage—the manufacturer must guard
against the risk by changing the product, warning of the danger, or
suggesting methods by which users can safely determine
238
their own reactions (e.g., patch tests). [Basko v. Sterling Drug, Inc., 416
F.2d 417 (2d Cir. 1969)]
(b) Trend—duty to warn [§1034]
Indeed, the growing view is that if there is a known risk of harm to any
number of potential users, no matter how small, the manufacturer owes a
duty to warn—particularly if a self-administered test is available to the user
that would disclose his sensitivity to the product. Under such circumstances,
the manufacturer’s failure to warn renders the product defective. [See
Griggs v. Combe, Inc., 456 So. 2d 790 (Ala. 1984)—no liability where
reaction unique; Tiderman v. Fleetwood Homes, 684 P.2d 1302 (Wash.
1984)—appreciable number]
e. Proof required [§1035]

The burden is on the plaintiff to prove (i) that the product was in fact “defective”
when it left the defendant’s control, and (ii) a causal relationship to the plaintiff’s
injuries. Often, expert witnesses are required. [Friedman v. General Motors Corp.,
331 N.E.2d 702 (Ohio 1975)]
(1) Circumstantial evidence of “defect” [§1036]
Even though the plaintiff cannot prove a specific defect in the product, some
courts permit recovery if an inference that the relatively new product was
defective can be drawn from proof that it functioned improperly in normal
use. [Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3d Cir. 1969)]
(2) Causation [§1037]
The plaintiff must show that the injuries were caused by some defect in the
product that existed at the time it was marketed by the defendant. [Moerer v.
Ford Motor Co., 57 Cal. App. 3d 114 (1976)]
239
(a) Defectiveness at time of marketing [§1038]

The plaintiff must show that the product was defective at the time it left the
defendant’s hands; i.e., strict liability will not be imposed on the defendant if
the defect is attributable to subsequent mishandling [Williams v. Ford
Motor Co., 494 S.W.2d 678 (Mo. 1973)] or to a dangerous and
unforeseeable alteration in the product after it was purchased [Jones v.
Ryobi, Ltd., 37 F.3d 423 (8th Cir. 1994); but see Liriano v. Hobart
Corp., supra, §1030—if modification is foreseeable, liability may follow].
(b) Cause in fact (actual cause) [§1039]
It is sufficient that the defect was a substantial factor in causing the injury.
[Codling v. Paglia, supra, §1009]
1) Warning cases [§1040]
In warning cases, the plaintiff must show that an adequate warning
would have made a difference. [Odom v. G.D. Searle & Co., 979 F.2d
1001 (4th Cir. 1992)—alleged lack of adequate warning irrelevant where
physician testified that he knew of danger of IUD and would still have
used same product even if it had contained more extensive warning;
Lussier v. Louisville Ladder Co., 938 F.2d 299 (1st Cir. 1991)—even
though ladder may have lacked warnings against unsuitable uses and
thus been a defective product, P used ladder in way he knew was
unsuitable so that warning would not have mattered]
a) Application—the “heeding presumption” [§1041]
In an effort to encourage suppliers to use adequate warnings, some
courts have developed a “heeding presumption” under which it is
presumed that if an adequate warning had accompanied the product,
the buyer/user would have heeded it—and not been hurt. [Richter v.
Limax International, Inc., 45 F.3d 1464 (10th Cir. 1995)—buyer
need not persuade jury that she would have behaved differently if
the missing warning had been present—causation was presumed;
Coffman v. Keene Corp., 628 A.2d 710 (N.J. 1993); but see
General Motors Corp. v. Saenz, 873 S.W.2d 353 (Tex. 1993)—
refusing to apply presumption in case where warning was given but
was claimed to have been inadequate]
2) Lack of safety features [§1042]
A defendant manufacturer may be liable where it failed to provide safety
features that decreased the severity of injuries from inevitable accidents
—even where the product did not cause the accident. [Tafoya v. Sears
Roebuck & Co., 884 F.2d 1330 (10th
240
Cir. 1989)—riding lawnmower lacked “deadman device” that would

have lessened severity of plaintiff’s injuries when mower tipped over]
(c) Proximate cause—effect of intervening causes [§1043]
If other causes are proved, their effect on causation is determined by the
same proximate cause tests applicable in negligence cases (see supra, §§442
et seq.).
Example: The defect that caused a truck to stall on a highway (where P
later ran into it) was not a proximate cause of the crash because the
driver had abandoned the truck, and for three hours before the accident,
cars had safely avoided it. [Peck v. Ford Motor Co., 603 F.2d 1240 (7th
Cir. 1979)]
Example: The manufacturer of defective fire clothing is not liable for

harm sustained by the sister of a burned firefighter who agreed to
donate skin tissue for her brother’s grafts. [Bobka v. Cook County
Hospital, 422 N.E.2d 999 (Ill. 1981)]
1) Injuries to third parties after supplier’s adequate warning to
purchaser [§1044]
Under present case law, a supplier who has given adequate postsale
warning of a latent danger to the original purchaser of the product may
not be liable for injuries later suffered by third persons. The original
purchaser’s failure to respond to the warning may be treated as a
superseding cause of the injury.
a) Application—auto recall cases [§1045]
Auto Manufacturer recalls all cars sold by it for replacement of
potentially dangerous steering control. Purchaser receives recall
notice but fails to return the car for replacement of the defective
part. Later, Purchaser sells the car to a third party, without advising
of the recall. Purchaser’s failure to return the car or warn the new
owner about the steering control terminates Manufacturer’s liability
(but Purchaser may be liable to the new owner in a negligence
case). [Ford Motor Co. v. Wagoner, 192 S.W.2d 840 (Tenn.
1946); and see supra, §947—retailer who knows about danger in a
product]
b) Application—prescription drugs [§1046]
Similarly, the manufacturer of a new drug who has given adequate
warning to prescribing physicians of the drug’s potential hazards is
not ordinarily strictly liable to a patient who suffers adverse reactions
from the medication.
241
The physician’s failure to disclose the hazards to the patient is
regarded as a superseding cause of the injury. (But the patient may
have a valid claim against the physician for lack of informed consent;
see supra, §§112-113.)
1/ Exception—mass immunization [§1047]
Warning physicians may not be sufficient where the drug is the
subject of mass immunization programs. Here, the manufacturer
is required to warn the ultimate recipients or see to it that notice
reaches such persons. Rationale: In these cases, there is no
physician to provide the patient with an individualized balancing
of the risks; hence, consumers must be given sufficient
information to balance the benefits and risks themselves. [Reyes
v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir. 1974); Rest.
3d-PL §6]
f. Kinds of losses recoverable

(1) Personal injuries (or death) [§1048]
Pain and suffering caused by injury from the defective product are recoverable,
together with all damages consequential thereto—medical expenses, loss of
income, etc. And if the injury results in death, a wrongful death action will lie.
(2) Property damage [§1049]
Physical damage to other property is recoverable in almost all states. [Vaughn v.
General Motors Corp., 466 N.E.2d 195 (Ill. 1984); John R. Dudley
Construction, Inc. v. Drott Manufacturing Co., 66 A.D.2d 368 (1979)]
(3) Economic losses [§1050]
Most courts, however, do not allow recovery in tort for purely economic losses
(e.g., product does not perform well, and purchaser is deprived of profits she
expected to make through its use or is forced to incur additional expenses to
make it work, etc.). The purchaser’s right to recover such losses is more of a
“sales” problem than a “torts” problem, and she usually is limited to a contract
action against the person who sold her the product (or, if there are warranties
running from the manufacturer, against the manufacturer as well). [East River
Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986);
Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. 1992)] This
approach applies even where the defect created a serious risk of personal injury
that did not come to pass. [Airport Rent-A-Car, Inc. v. Prevost Car, Inc., 660
So. 2d 628 (Fla. 1995); but see Washington Water Power Co. v. Graybar
Electric Co., 774 P.2d 1199 (Wash. 1989)—adopting a minority rule that
permits recovery of pure economics loss where a risk of personal injury had
been created]
242
(a) Minority view [§1051]

A minority has extended strict tort liability for defective products to purely
economic losses. [See, e.g., Alaskan Oil, Inc. v. Central Flying Service,
Inc., 975 F.2d 553 (8th Cir. 1992)]
(b) Misrepresentation [§1052]
In any event, if the product has been advertised or represented to perform
according to certain specifications, there may be a possibility of recovery in
tort for misrepresentation (see infra, §§1671-1674).
(c) Part of other action [§1053]
Moreover, if the plaintiff suffers personal injury or property loss, all states
permit economic loss to be recovered in tort with the other damages under
strict liability.
6. Defenses to Strict Tort Liability
a. Contributory negligence [§1054]

Whether contributory negligence is a valid defense depends on how this term is used:
(1) Failure to discover or guard against danger [§1055]
Contributory negligence in the sense of failing to exercise reasonable care to
discover the danger or to guard against it traditionally was not a valid defense
to a strict liability claim in most states. [Rest. 2d §402A cmt. n]
Example: D leased an airplane without oil in it to P, who took off without
checking the oil level. D could not allege contributory negligence as a
defense when the plane crashed shortly after takeoff. [Rudisaile v. Hawk
Aviation, Inc., 592 P.2d 175 (N.M. 1979)]
(2) Unreasonable misuse [§1056]
However, contributory negligence in the sense of unreasonable misuse of a
defective product—in a manner or for a purpose for which no reasonable person
would use it (e.g., driving a passenger car at 150 m.p.h.)—traditionally did bar
liability. [McDevitt v. Standard Oil Co., 391 F.2d 364 (5th Cir. 1968)]
(a) Note
As previously discussed, the better analysis is that a product will not be
found “defective” if it did not stand up under the plaintiff’s unforeseeable
misuse. (Remember, however, that a certain amount of product misuse may
be considered “normal”; see supra, §1028.)
b. Comparative fault [§1057]
Most comparative negligence states reduce the plaintiff’s recovery in strict liability
cases by some amount to reflect the fact that the injury was caused in
243
part by the plaintiff’s own carelessness. This avoids the need to distinguish between
“knowing” and “unknowing” contributory fault. [Daly v. General Motors Corp., 20
Cal. 3d 725 (1978); but see Simpson v. General Motors Corp., 483 N.E.2d 1 (Ill.
1985)—contra]
(1) Comment
There is a theoretical inconsistency in talking about “comparative negligence”
here because the defendant seller may not have been negligent at all; i.e., his
liability may arise regardless of any fault on his part. Still, it is thought anomalous
to allow the defense where the claim is based on negligence and deny it where
the claim is based on strict liability. Where contributory negligence is shown,
these jurisdictions refuse to deprive the plaintiff of all recovery in strict liability.
Therefore, courts recognizing comparative negligence in negligence cases apply a
comparable notion here (sometimes called comparative “fault”) that has the
effect of reducing the plaintiff’s recovery by an amount the jury deems
appropriate. [Suter v. San Angelo Foundry & Machine Co., 406 A.2d 140
(N.J. 1979); Seay v. Chrysler Corp., 609 P.2d 1382 (Wash. 1980)]
(2) Note
Another approach is to compare the plaintiff’s deviation from a reasonable
standard and separately compare the deviation between the defendant’s product
and a good product—and then compare the two deviations. [See Sandford v.
Chevrolet Division of General Motors, 642 P.2d 624 (Or. 1982)]
(3) Crashworthiness [§1058]
Where the plaintiff is hurt in a car accident that was totally his fault and then
seeks to recover for enhanced injuries due to the lack of crashworthiness of the
car’s interior, most courts will reduce the plaintiff’s recovery to reflect his fault
in the original accident. [Whitehead v. Toyota Motor Corp., 897 S.W.2d 684
(Tenn. 1995); but see Reed v. Chrysler Corp., 494 N.W.2d 224 (Iowa 1992)—
contra]
c. Assumption of the risk [§1059]

One who knows of the danger or risk involved, and unreasonably continues to use
the product, may be held to have assumed the risk. This is a valid defense to strict
liability. But this is more clearly understood in terms of lack of proximate causation—
that the danger did not cause the injury because the victim, knowing fully of the
danger, undertook to encounter it. Note that in cases of obvious dangers, the analysis
parallels the “consumer expectation” approach to defects (see supra, §969)—but it
extends beyond obvious dangers.
(1) Application—warning of latent danger [§1060]
Thus, even where the danger was not obvious, if the plaintiff has learned about
it and still unreasonably continues to use the product, recovery may be barred.
The analysis here may be similar to the analysis of actual cause, supra, §§1039-
1040.
244
(a) “Adequately” warned [§1061]

The crucial issue, of course, is the adequacy of the warning given. Courts
tend to be demanding in judging this factor, holding the warning inadequate
if it was either incomplete (as where the manufacturer disclosed some but
not all risks) or was “watered down” by the manufacturer’s own aggressive
sales promotion, which had the effect of persuading users to disregard the
warnings given. [Stevens v. Parke, Davis & Co., 9 Cal. 3d 51 (1973)]
(2) Limitation—reasonable alternative required [§1062]
There is no “voluntary” assumption of the risk where the plaintiff’s continued
use of the known defective product results from economic duress. [Messick v.
General Motors Corp., 460 F.2d 485 (5th Cir. 1972)—traveling salesman (P)
had asked D repeatedly to repair defective steering, and was “forced” to
continue driving car because D was unable to replace it]
(3) Limitation—voluntary and knowing assumption of risk required [§1063]
The injured party must actually have known of the particular danger involved
and freely decided to face it.
Example: Where the injured party was run over and killed by a road grader,
no assumption of risk defense lies. Deliberately confronting the machine
would have been suicide, and the victim exhibited no such intention. [West v.
Caterpillar Tractor Co., 547 F.2d 885 (5th Cir. 1977)]
(a) Note
The relevant knowledge and voluntary decision to face the risk is that of the
victim, not that of the product’s buyer. [Hammond v. International
Harvester Co., 691 F.2d 646 (3d Cir. 1982)—manufacturer who removed
safety device at request of knowledgeable buyer cannot argue that buyer’s
employee assumed the risk]
(4) Rejection of assumed risk as complete defense [§1064]
The impact of comparative negligence is felt in products cases as well. Certainly,
as noted, a court that uses the risk/utility test will be less likely to find
assumption of risk because the danger is more likely to be latent. But beyond
that, most courts hold that if a dangerous situation confronts a person who
unreasonably chooses to encounter it, the defense is not assumption of risk but
rather comparative fault. [Davenport v. Cotton Hope Plantation Horizontal
Property Regime, supra, §859]
d. Disclaimers [§1065]
Contractual disclaimers of liability generally have been held invalid as against public
policy—at least as to products liability claims involving personal injury arising out of
consumer transactions. [Vandermark v. Ford Motor Co., supra, §993]
245
(1) Exception—parties of equal bargaining power [§1066]

Courts may uphold contractual disclaimers as between two business concerns
with relatively equal bargaining positions. [Delta Air Lines, Inc. v. McDonnell
Douglas Corp., 503 F.2d 239 (5th Cir. 1974)—upholding contract limiting
liability for repair expenses due to defective nose gear] Note that the harm when
commercial entities are involved is economic loss, not personal injury.
e. Statute of limitations [§1067]

The personal injury (tort) statute of limitations applies, rather than the contracts
statute of limitations. (But compare “statutes of repose,” infra, §1307.)
f. Preemption [§1068]
In a few situations, courts have concluded that federal legislation has impliedly
preempted state tort law. [Geier v. American Honda Motor Co., 529 U.S. 861
(2000)—National Transportation and Motor Vehicle Safety Act and administrative
regulations issued under it preempt state tort action claiming that a 1987 car marketed
without airbags was defectively designed; Cipollone v. Liggett Group, Inc., 505
U.S. 504 (1992)—federal statute preempted state tort claims in cigarette cases based
on failure to warn in advertising and promotion and neutralization of warnings by
advertising, but did not preempt claims based on fraud, testing and research, or
express warranty]
E. Liability Based on Breach of Warranty

Rather than relying on negligence or strict liability as the basis for liability, courts may
impose liability for breach of warranty in a contract action.
2. Express Warranties [§1070]
Whatever a seller represents to a purchaser about the product involved (by advertising or
otherwise) may be an express warranty, i.e., a part of the contract. And if the warranty is
breached (the product is not as represented), causing damage or injury to the purchaser
relying on the representation, that purchaser has a direct action against the seller on the
contract.
3. Implied Warranties [§1071]

However, most warranty actions are based on implied warranties—the assurance
(implied in law) from the seller to the buyer that the product purchased will do no harm
in normal use.
a. U.C.C. provisions [§1072]

The Uniform Commercial Code (“U.C.C.”) implies two pertinent warranties:
246
(1) Fitness for particular purpose [§1073]

If the seller knows (or has reason to know) that the buyer is purchasing goods
for a particular purpose, and is relying on the seller’s skill or judgment in
supplying appropriate goods, there is an implied warranty that the goods sold are
in fact fit for that purpose. [U.C.C. §2-315]
(2) Merchantability [§1074]
If goods are supplied by one who deals in goods of that kind, a warranty is
implied that they are of at least “fair average” quality, i.e., generally fit for
ordinary purposes. [U.C.C. §2-314]
(3) Distinguish—warranty and strict liability in tort [§1075]
Warranties under the U.C.C. are judged from the consumer expectation
perspective. It is thus possible that a product might be defective in tort because
of the existence of feasible alternatives while at the same time not
247
breach either implied warranty. Similarly, a product might breach a warranty

although it is not defective under tort analysis. [See, e.g., Castro v. QVC
Network, Inc., 139 F.3d 114 (2d Cir. 1998)—roasting pan might not breach the
risk/utility test, but it breached the warranty standard because unduly dangerous
if used as advertised; Denny v. Ford Motor Co., 87 N.Y.2d 248 (1995)—
although plaintiff’s Ford Bronco II passed the risk/utility test for off-road use,
jury should be charged on warranty theory as well because Ford arguably
improperly marketed the Bronco II as an “ordinary purpose” vehicle safe for
daily driving]
b. Transactions covered [§1076]

The U.C.C. itself applies only to sales of goods (i.e., personal property).
(1) Bailments [§1077]
Most courts, however, have implied similar warranties (“by analogy”) in
connection with the bailment or lease of personal property. [Gary D. Spivey,
Annotation, Application of Warranty Provisions of Uniform Commercial Code to
Bailments, 48 A.L.R.3d 668 (1973)]
(2) Sale of real property [§1078]
Some courts have held that a breach of warranty claim may exist in connection
with the construction and sale of a new home. [Caceci v. Di Canio
Construction Corp., 72 N.Y.2d 52 (1988)]
(3) “Goods” vs. “services” [§1079]
But warranties will not be implied in contracts for services. Thus, a doctor does
not “impliedly warrant” the safety or adequacy of the treatment furnished; a
railroad does not warrant the fitness or safety of the transportation furnished;
and a repair shop, in the absence of an express agreement, does not warrant the
adequacy of its work. Any liability for injuries sustained as the result of improper
services rendered must therefore be based on tort (or an explicit contract
provision), not implied warranty. [Dennis v. Allison, 698 S.W.2d 94 (Tex.
1985)—no warranty in case of psychiatrist assaulting patient]
(a) Borderline cases [§1080]
Sometimes it is difficult to distinguish a “sale of goods” from “services
rendered.” This issue has frequently been encountered with regard to
restaurants. Early cases concluded that no “sale of goods” was involved and
hence no warranty implied. Virtually all courts now agree that even though a
service is also provided, food served in restaurants is in fact “sold,” so that
the owner is subject to implied warranty liability. [Arnaud’s Restaurant v.
Cotter, 212 F.2d 883 (5th Cir. 1954)]
(b) Blood [§1081]
Almost all states have legislation barring warranty suits by persons
248
who have received infected blood in a transfusion. [Zichichi v. Middlesex

Memorial Hospital, supra, §1020]
(4) Defendants must be dealers [§1082]
Liability for implied warranties generally is imposed only on those who “deal”
regularly in the product. Thus, e.g., it generally does not apply to a person who
sells his car or stereo system to a neighbor.
4. Effect of Breach of Warranty [§1083]

Liability for breach of warranty is really a form of strict liability. If the product is
defective, the warranty is breached and the manufacturer is automatically liable—
whether or not due care was exercised in its manufacture, or the manufacturer was
otherwise “at fault.”
5. Requirement of “Privity of Contract” [§1084]

The traditional problem with basing liability on breach of warranty is that it is a contract
action, so that “privity of contract” between the injured party and the party sought to be
held liable for the injuries normally must be shown.
a. Former rule—implied warranties required pure privity [§1085]

Because a seller’s implied warranties ran only to the immediate buyer, a
manufacturer’s implied warranties normally would run only to its distributor or
wholesaler. The ultimate purchaser or consumer of the goods had no direct action
against the manufacturer, because there was no contract between them.
(1) Result—multiplicity of suits [§1086]
This led to a multiplicity of actions: Injured purchaser sued retailer, who in turn
sought indemnity from wholesaler, who in turn sought indemnity from
manufacturer. Moreover, if the retailer was insolvent, the purchaser might have
had no effective remedy, in which case the manufacturer escaped liability.
(2) Distinguish—express warranties [§1087]
But the result was different if the manufacturer made an express warranty to the
public (e.g., in advertising) upon which the ultimate purchaser relied in acquiring
the product. Here, in the event of breach, the purchaser (but not other users or
injured bystanders) was allowed a direct action against the manufacturer.
[Hauter v. Zogarts, 14 Cal. 3d 104 (1975)]
b. Modern law—modified interpretation of privity [§1088]

The privity rules still apply to retailers, manufacturers, and other commercial sellers,
but the rules have been relaxed considerably and no longer distinguish between
implied and express warranties.
(1) U.C.C. provisions [§1089]
The U.C.C. offered three alternative versions for the states to adopt. [U.C.C.
§2-318] Thus, depending on the state, privity extends to:
249
(a) The family or guests of the immediate buyer when personally injured; or
(b) Any individual who may reasonably be expected to use, consume, or be
affected by the goods and who suffers personal injury; or
(c) Any person who may reasonably be expected to use, consume, or be
affected by the goods and who is injured.
(2) Background [§1090]
These alternatives were not offered when the U.C.C. was first presented to the
states, and therefore some states adopted no version of section 2-318 because
the version initially offered was more restrictive than state law.
c. Abandonment of “privity” requirement as to dangerous products [§1091]

Aside from the U.C.C., courts struggling with warranty concepts have been chipping
away at the old privity requirements in order to hold a manufacturer or supplier
strictly liable to those hurt by use or consumption of its product.
(1) Former view—exceptions regarding specific products [§1092]
The earliest cases involved foodstuffs, medicines, firearms, etc. Because of the
great potential harm involved, courts held the manufacturer liable in warranty to
the ultimate user of such products (whether or not such person was the actual
purchaser).
(2) Modern approach—“foreseeable scope of use” test [§1093]
Today, many courts have expanded this to encompass any dangerous product,
and hold that implied warranties arising from the sale thereof extend not only to
the purchaser or user of such products, but also to all persons within the
foreseeable scope of use. [Henningsen v. Bloomfield Motors, Inc., 161 A.2d
69 (N.J. 1960)—auto manufacturer held liable in warranty for injuries caused by
a defective steering wheel, not only to ultimate purchaser of the car but also to
foreseeable users (e.g., passengers in car)]
d. Consumer protection statutes [§1094]

A few states have gone even further to abolish the requirement of “privity” between
the manufacturer and purchaser of all consumer goods (whether or not generally
thought of as dangerous). [See, e.g., Cal. Civ. Code §§1790 et seq.]
The defendant is not liable where, because of an independent superseding event,
such as the plaintiff’s assumption of risk, its breach is not the proximate cause of the
damage.
(1) Limited to latent dangers [§1096]
The warranty approach is the source of the “consumer expectation” approach.
This means that if the danger of the product is apparent to the
250
ordinary buyer, there will be no liability for breach of any warranty, either
because there is no breach or because there is no causation. In effect, this means
that plaintiffs in warranty cases are often limited to latent dangers.
Example: Ps noticed sparks and smoke coming from their television set and
called D for a service appointment. Before the repair, however, they turned
on the set again and watched it for two hours, despite seeing more sparks and
smoke. D was not liable for the resulting fire. [Erdman v. Johnson Bros.
Radio & Television Co., 271 A.2d 744 (Md. 1970)]
f. Damages [§1097]
Damages for breach of warranty are substantially the same as in a successful strict
liability tort action—i.e., all damages proximately caused by the breach (including
personal injury, pain, and suffering). However, a few states bar damages for
wrongful death (see infra, §§1156-1171) on a breach of warranty theory. [Geohagan
v. General Motors Corp., 279 So. 2d 436 (Ala. 1973)]
6. Defenses to Warranty Actions

Although the plaintiff’s contributory negligence is not formally a defense to a claim
for breach of warranty [Brown v. Chapman, 304 F.2d 149 (9th Cir. 1962)], most
courts have developed an analogous defense to parallel the tort developments [see,
e.g., West v. Caterpillar Tractor Co., supra, §1063—comparative fault defense in
warranty cases].
(1) Distinguish—assumption of risk [§1099]
If the plaintiff actually discovers a defect and unreasonably uses the product in
its defective condition, assumption of the risk is a complete defense in warranty
actions. Some courts might analyze this as a lack of causation (see supra,
§1095).
251
b. Disclaimers [§1100]
By appropriate language, a manufacturer or seller may limit or exclude warranties
that would otherwise arise from the sale of goods. [U.C.C. §2-316]
(1) Sufficient language [§1101]
If a chattel is conspicuously marked “as is,” the “as is” language may be
sufficient to exclude all warranty liability. Warranty liability may be disclaimed
more specifically, too, such as by the following language: “No warranties,
express or implied, are made as to the fitness or merchantability of this product
beyond the description on the face hereof.” [U.C.C. §2-316]
(2) Consumer goods [§1102]
However, some states now require much more specific language to disclaim
warranties in the sale of consumer goods. [See Cal. Civ. Code §1792.4—requires
such explicit warnings that few products could be sold on this basis]
(3) Limitation—“unconscionability” [§1103]
If there has been no valid disclaimer, an attempt to limit consequential damages
that may be recovered after a breach is deemed “prima facie unconscionable” as
to personal injuries arising out of the use of consumer goods. [U.C.C. §2-
719(3)]
(4) Scope of disclaimers as effective defense—seller not insulated from
liability [§1104]
Although the seller is able to successfully exclude warranties, disclaimers are
binding only on the purchaser of the goods; they do not bar the claims of an
injured third party who is not the purchaser. [Ferragamo v. Massachusetts Bay
Transportation Authority, 481 N.E.2d 477 (Mass. 1985)]
c. Notice requirements [§1105]

Warranty actions may be barred if the injured purchaser fails to give the seller “timely
notice” of breach. [U.C.C. §2-607(3)(a)]
d. Statute of limitations [§1106]

The usual warranty limitations period is four years, running from the delivery of the
goods. [U.C.C. §2-725] Because the tort statute generally is shorter but runs only
from the time of injury, a plaintiff may find that only tort (or warranty) is available in
a specific case.
252
Chapter Five:
Nuisance
CONTENTS
Key Exam Issues

A. In General §1107
B. Plaintiff’s Interest §1114
C. Defendant’s Conduct §1118
D. Substantial and Unreasonable Harm to Plaintiff §1122
E. Causation §1132
F. Remedies §1134
G. Defenses §1138
253
Key Exam Issues
If you see a nuisance question on your exam, consider the following issues:
1. Is this a public or private nuisance (i.e., whose interest is being invaded)? This issue
affects a party’s standing to sue.
2. Is this a nuisance situation or a trespass to land? The distinction between nuisance and
trespass is very important. Nuisance protects the plaintiff against interference with the
use or enjoyment of her land; trespass involves a physical invasion of the plaintiff’s
land. Consider the facts carefully to make this determination. And don’t forget that a
particular fact situation could be both a nuisance and a trespass to land.
3. Is the harm substantial and unreasonable? In general, plaintiffs are accorded less
protection against nuisance than against trespass. When someone has physically intruded
onto your land either by entering it or by throwing rocks onto it, there are few defenses
to their actions. But where the interference has involved something that is harder to keep
contained, such as odor or noise, there is—out of necessity—less complete protection.
This accounts for the introduction of questions of reasonableness, the nature of the
neighborhood, etc. Therefore, it is particularly important to work carefully with the facts
in determining whether a nuisance is present.
A. In General
Prima facie case:
• Nontrespassory Invasion of Plaintiff’s Interest
• Intent, Negligence, or Strict Liability
• Substantial and Unreasonable Harm
• Causation
2. Private Nuisance vs. Public Nuisance
a. Private nuisance defined [§1108]

A “private nuisance” is a nontrespassory interference with the plaintiff’s interest in
the use or enjoyment of her property.
254
255
(1) Distinguish—trespass [§1109]

Many types of conduct may be both a trespass and a nuisance; e.g., blasting on
the defendant’s land may unreasonably interfere with the plaintiff’s enjoyment of
her land because of the noise involved (and thus be a nuisance) and at the same
time may throw rocks into the plaintiff’s garden (and thus be a trespass).
Similarly, the flooding of the plaintiff’s land or seepage onto it may also
constitute both a trespass and a nuisance.
Example: Although D’s act in casting microscopic, undetectable particulates
from its smelters onto P’s land may be a trespass [Bradley v. American
Smelting & Refining Co., supra, §205], if the intrusion comes through noise
waves, odor, or light, only nuisance will lie [Wilson v. Interlake Steel Co., 32
Cal. 3d 229 (1982)].
b. Public nuisance defined [§1110]

A “public nuisance” is an act by a defendant that obstructs or causes inconvenience
or damage to the public in the exercise of rights common to all, or in the
enjoyment or use of common property. For a public nuisance, criminal as well as
civil sanctions may be imposed. [Armory Park Neighborhood Association v.
Episcopal Community Services, 712 P.2d 914 (Ariz. 1985)]
(1) Standing to sue [§1111]
Generally, only the state—acting through public officials—can redress a public
nuisance; a private individual may maintain an action for a public nuisance only
if she suffers an injury “peculiar in kind”—i.e., apart from that common to the
public.
Example: An obstruction on a public road is a public nuisance, but it is a
private nuisance as to P if it also blocks her driveway. [Burgess v. M/V
Tamano, 370 F. Supp. 247 (D. Me. 1973)]
Example: During construction on D’s building, a wall collapsed, resulting in

street closures that disrupted P’s business for five weeks. The court found
that P’s injury was greater in degree than others but not different in kind, and
therefore was insufficient to sustain a public nuisance claim. [532 Madison
Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 96 N.Y.2d 280
(2001)]
(2) Application—environmental damage [§1112]
This distinction is of vital importance where a private citizen sues for
environmental pollution. At present, most courts limit a private individual’s
recovery to those damages that she personally sustains, on the rationale that
pollution is a public problem with which courts cannot deal effectively
256
in litigation between private parties. [Boomer v. Atlantic Cement Co., 26

N.Y.2d 219 (1970)]
(3) Application—handguns and fast food [§1113]
In recent years, plaintiffs have attempted to use public nuisance doctrine as a
broader public policy tool, particularly in the context of handguns and fast food.
Courts have generally dismissed claims that the lawful sales of lawful products
can create a public nuisance. [See, e.g., Camden County Board of Chosen
Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001)] With
regard to handguns, suits of this sort were ended by a federal statute enacted in
2005 that bars tort liability for gun manufacturers in the absence of a defect in
the gun. [Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§7901 -
7903]
B. Plaintiff’s Interest
1. In General [§1114]
The defendant’s act must have resulted in a nontrespassory interference with the
plaintiff’s interest in the use or enjoyment of land.
2. Possessory Interest in Land Required [§1115]

The plaintiff’s interest must be either actual possession or the right to immediate
possession. Thus, e.g., a lessee or adverse possessor can recover, whereas a lessor
cannot. [Brink v. Moeschl Edwards Corrugating Co., 133 S.W. 1147 (Ky. 1911)]
a. Who may sue [§1116]

The plaintiff must be the one who has possession. Thus, an employee, a licensee, or
even the spouse of the possessor does not have sufficient status to sue. [Page v.
Niagara Chemical Division, 68 So. 2d 382 (Fla. 1953)]
3. Expansion—Interference with Business Interest [§1117]

Some courts have extended the tort of nuisance to interference with business interests, as
well as use and enjoyment of land. For example, several cases have held that pollution of
a lake or river is a private nuisance as to commercial fisheries operating on the river.
[Hampton v. North Carolina Pulp Co., 27 S.E.2d 538 (N.C. 1943)]
C. Defendant’s Conduct
1. Nature of Act [§1118]
The defendant’s act must be shown to have been (i) intentional, (ii) unintentional but
negligent, or (iii) neither intentional nor negligent, but actionable under rules governing
liability for abnormally dangerous activities (strict liability). [Rest. 2d §822; Copart
Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564 (1977)]
257
a. Act is required [§1119]

Some act is required because of the traditional view that a landowner has no duty to
avoid harm to neighbors from natural conditions. [Lichtman v. Nadler, 74 A.D.2d
66 (1980)—no liability for mosquito infestation and unpleasant odors emanating from
natural accumulation of water on D’s land]
b. Application [§1120]
Of course, most nuisances are intentional because the plaintiff has usually
complained to the defendant, and the defendant has ignored the complaints and
continued his activities. [Smith v. Staso Milling Co., 18 F.2d 736 (2d Cir. 1927)]
Example—negligent nuisance: In cases where D has failed to exercise due care
to abate a condition under his control (e.g., a stench, or fires on his property that
blow smoke onto P’s land), negligent nuisance is found.
Example—strict liability nuisance: A nuisance may be predicated on strict

liability even where D has taken reasonable precautions to control the situation
and is therefore not “at fault”, as where D stores explosives in a residential
neighborhood, or causes noise and fumes from oil well drilling. [Cumberland
Torpedo Co. v. Gaines, 255 S.W. 1046 (Ky. 1923)] But note: Strict liability applies
only where the nuisance results from an abnormally dangerous activity or from an
animal. (See supra, §§881 et seq.)
2. Why Does It Matter? [§1121]

This distinction based on the defendant’s conduct is of primary importance in
determining what defenses are available. For example, contributory negligence is a
defense to a nuisance predicated on negligence but not to intentional nuisances.
[McFarlane v. City of Niagara Falls, 247 N.Y. 340 (1928)]
D. Substantial and Unreasonable Harm to Plaintiff

The nontrespassory invasion must result in substantial and unreasonable harm to the
plaintiff’s interest in the use and enjoyment of the land.
2. “Substantial” [§1123]
The term “substantial” refers to the quantitative aspect of the interference: It must be
something that a reasonable person would take offense at, rather than a de minimis
annoyance to which only a grouchy neighbor or unduly sensitive person would object.
[Dunlop v. Daigle, 444 A.2d 519 (N.H. 1982)—kennel for 38 dogs four feet from P’s
rental unit]
258
3. “Unreasonable” [§1124]
If an intentional or negligent nuisance is alleged, the defendant’s conduct must be
unreasonable in the sense that, taking all the factors into consideration, the harm done by
the interference outweighs justifications for the defendant’s conduct. [Antonik v.
Chamberlain, 78 N.E.2d 752 (Ohio 1947); and see Property Summary]
a. Factors to consider [§1125]

Important factors in determining whether the conduct is unreasonable are:
(i) The suitability of the invading use to the neighborhood where it takes place;
(ii) The values of the respective properties;
(iii) The cost to the defendant to eliminate the condition complained of; and
(iv) The social benefits from allowing the condition to continue (employment of
others, etc.).
[Rest. 2d §828; and see Remedies Summary—doctrine of “balancing hardships” in
deciding whether to enjoin a nuisance]
b. Aesthetic considerations [§1126]

Most courts have held that aesthetic considerations may not ordinarily create a
nuisance if the activity is being run without unreasonable noise, odors, etc. [Wernke
v. Halas, 600 N.E.2d 117 (Ind. 1992)—tasteless yard decorations involving toilet
seat and unattractive and vulgar graffiti not actionable; and see Adkins v. Thomas
Solvent Co., 487 N.W.2d 715 (Mich. 1992)—property owner cannot recover for
lost value due to erroneous public fear that defendant’s pollution will some day reach
plaintiff’s property]
(1) Exception—funeral homes [§1127]
Many states have concluded that a funeral home, no matter how carefully and
tastefully run, may be a nuisance if located in a residential district. [Mitchell v.
Bearden, 503 S.W.2d 904 (Ark. 1974); Travis v. Moore, 377 So. 2d 609
(Miss. 1979)—properly run funeral home that caused “depressed feelings” to
residents in residential neighborhood was a nuisance]
c. Prior occupation [§1128]

For some courts, a relevant question as to the reasonableness of a use is whether the
use preceded the plaintiff’s presence. [McQuade v. Tucson Tiller Apartments,
Ltd., 543 P.2d 150 (Ariz. 1975)] This is especially true where the use offended no
one until the plaintiff moved in. [Spur Industries, Inc. v. Del E. Webb
Development Co., 494 P.2d 700 (Ariz. 1972)] On the other hand, this cannot be
conclusive because the defendant’s conduct might not have become “unreasonable”
until persons moved onto surrounding land.
259
d. Effect of zoning [§1129]

Neither are zoning ordinances conclusive as to what is a “reasonable use,” because
activities permitted under zoning laws may still be unreasonable as to neighbors.
[Armory Park Neighborhood Association v. Episcopal Community Services,
supra, §1110—center that provided care for indigent people could be held a nuisance
despite its compliance with zoning provisions]
(1) But note
A few states (e.g., California and New York) provide that a zoning ordinance is a
presumptive defense; i.e., if the use is permitted under local zoning ordinances,
it is presumptively not a nuisance. (See Property Summary.)
4. Minority Rule—Intentional Substantial Interference Enough [§1130]

A growing minority of states now hold that in cases of intentional nuisance, the plaintiff
need only show a substantial interference with the use and enjoyment of the land; i.e.,
the defendant may be liable even if his conduct is reasonable. [Jost v. Dairyland Power
Cooperative, 172 N.W.2d 647 (Wis. 1969)—very useful power plant provided much
needed energy to area but also damaged crops on P’s nearby land; even though benefits
created by D outweighed harm, plant was held a nuisance]
a. Restatement view [§1131]

The Second Restatement provides that an intentional invasion is unreasonable “if the
harm resulting from the invasion is severe and greater than the other should be
required to bear without compensation.” [Rest. 2d §829A]
E. Causation
1. Intentional Nuisance [§1132]
If the case is one of intentional nuisance, causation is basically the same as for battery
(see supra, §17).
2. Negligence or Strict Liability [§1133]

If the nuisance is predicated on negligence or strict liability, the rules of causation are
based on negligence standards (see supra, §§415 et seq.).
F. Remedies
1. Judicial Relief [§1134]
Compensatory damages may be awarded for the interference, and where the invasion is
of a nonrecurring nature compensatory damages usually suffice. However, most
nuisances are continuing in nature, and the remedy sought in such cases is usually an
260
injunction against future invasions together with damages for past invasions. [Valasek v.
Baer, 401 N.W.2d 33 (Iowa 1987)—D enjoined from spreading hog manure on a section
of his farmland close to P’s home because of noxious odor] (For conditions governing
injunctive relief, see Remedies Summary.)
a. Continuing nuisances [§1135]

If the nuisance is continuing but can be discontinued, the plaintiff may elect whether
to sue once for all damages or sue periodically for past damages. [Baker v.
Burbank-Glendale-Pasadena Airport Authority, 39 Cal. 3d 862 (1985)—D could
stop airport nuisance at any time]
b. Punitive damages [§1136]

Punitive damages may be recovered if the defendant’s conduct was willful and
malicious. [Atlas Chemical Industries, Inc. v. Anderson, 524 S.W.2d 681 (Tex.
1975)]
2. “Self-Help” [§1137]
The plaintiff may also be entitled to the “self-help” remedy of abatement—i.e., entering
the defendant’s land to correct the nuisance. (See Property Summary.)
G. Defenses
1. Contributory Negligence [§1138]
Depending on the type of nuisance involved, the defendant may reduce or escape liability
by proving that the plaintiff was negligent. [Delaney v. Philhern Realty Holding Corp.,
280 N.Y. 461 (1939)]
a. Negligence [§1139]
Where a nuisance results from negligence, contributory negligence is an available
defense. [Calder v. City & County of San Francisco, 50 Cal. App. 2d 837 (1942)]
The jurisdiction’s normal rules of comparative negligence (or contributory negligence)
are used. [Nelson v. Hansen, 102 N.W.2d 251 (Wis. 1960)]
b. Intentional nuisance [§1140]
However, where the nuisance is intentionally committed, contributory negligence is
no defense.
c. Abnormally dangerous activity [§1141]

Where the nuisance is based on an abnormally dangerous activity, comparative
negligence is likely to apply (see supra, §921).
2. Assumption of Risk [§1142]

Whether a nuisance is intentional, negligent, or based on strict liability, assumption of risk
is an available defense. [Jacko v. City of Bridgeport, 213 A.2d 452 (Conn. 1965)]
261
a. Consent [§1143]
If the plaintiff has consented to the building of structures by the defendant, knowing
that they will create a nuisance, the plaintiff cannot recover for damages caused by
that construction. [Crawford v. Magnolia Petroleum Co., 62 S.W.2d 264 (Tex.
1933)]
b. “Coming to” the nuisance [§1144]

However, the mere fact that an activity creating a nuisance existed before the plaintiff
came within its scope is ordinarily not a defense.
(1) No knowledge of nuisance [§1145]
If the plaintiff did not foresee the damage complained of, she is not precluded
from seeking recovery for it. [Weston Paper Co. v. Pope, 57 N.E. 719 (Ind.
1900)]
(2) Knowledge of nuisance [§1146]
Even if the plaintiff knew of the nuisance, the majority holds that the knowledge
is generally no defense, and the plaintiff may seek recovery. [Kellogg v. Village
of Viola, 227 N.W.2d 55 (Wis. 1975)]
(a) Prior occupation [§1147]
These courts may still consider prior occupation as relevant to the
reasonableness of the activity. (See supra, §1128.)
(b) Plaintiff’s purpose [§1148]
Even in states following the majority position, if the plaintiff moved in solely
to bring a lawsuit, recovery will be barred. [Rest. 2d §840D]
(c) Minority view [§1149]
A minority of courts deny recovery altogether when a plaintiff comes to a
nuisance with knowledge of it. [East St. Johns Shingle Co. v. City of
Portland, 246 P.2d 554 (Or. 1952)]
262
Chapter Six:
Miscellaneous Factors Affecting Right to Sue
CONTENTS
Key Exam Issues

A. Survival of Tort Actions §1150
B. Wrongful Death §1156
C. Injuries to Members of the Family §1172
D. Tort Immunity §1211
E. Release and Contribution Among Joint Tortfeasors §1252
F. Indemnity §1262
G. Statutes of Limitations §1268
263
Key Exam Issues
The material in this chapter applies to every tort action considered in this Summary but is
central to personal injury situations. It is rare that an exam question will build heavily on any
part of this material, but on the other hand, it is quite common for these topics to be
necessary to fill out your answer. Therefore, keep in mind the following:
1. Always check to see if anyone has died, because this will require you to address
questions of survival and wrongful death.
2. If any of the parties are related, look for new types of damage (such as loss of
consortium), and consider intrafamily immunities if one tries to sue the other.
3. If more than one person has committed the tort, consider whether there may be
contribution or indemnity.
A. Survival of Tort Actions

1. Common Law—No “Survival” [§1150]
At common law, with few exceptions, there was a rule that tort actions did not “survive,”
meaning that the death of either the tortfeasor or the person injured terminated any
existing tort cause of action and prevented any recovery by or against the estate.
2. Survival Statutes [§1151]

The common law rule has been changed to some extent by statute (“survival statutes”) in
almost every jurisdiction.
a. Personal injury and property damage [§1152]

These statutes allow survival of causes of action for personal injuries as well as
property damage incurred up to the time of death.
(1) Pain and suffering [§1153]
There is a split of authority on whether a plaintiff may recover for a decedent’s
pain and suffering. The majority of jurisdictions allow such recovery [see, e.g.,
Beynon v. Montgomery Cablevision Ltd. Partnership, supra, §525—
$350,000 award for emotional distress suffered during two seconds before
deadly automobile accident; De Long v. County of Erie, 60 N.Y.2d 296 (1983)
—$200,000 for 12 minutes of terror before death], but some jurisdictions deny
264
it [see, e.g., Cal. Civ. Proc. Code §377.34—claim for pain and suffering
damages does not survive victim’s death; but see Sullivan v. Delta Air Lines,
Inc., 15 Cal. 4th 288 (1997)—statute does not apply where death occurs while
plaintiff’s trial court judgment is on appeal].
b. Intangible personal interests [§1154]

Most states do not allow actions to survive where the tort involves recovery of
damages for the invasion of intangible personal interests—e.g., defamation, right of
privacy, malicious prosecutions, etc. [Innes v. Howell Corp., 76 F.3d 702 (6th Cir.
1996); but see Canino v. New York News, Inc., 475 A.2d 528 (N.J. 1984)—contra]
c. No punitive damages [§1155]

Even though a cause of action survives the death of the tortfeasor, it is generally
recognized that the plaintiff cannot recover punitive damages against the estate of a
deceased tortfeasor. [Hofer v. Lavender, 679 S.W.2d 470 (Tex. 1984); but see
G.J.D. v. Johnson, 713 A.2d 1127 (Pa. 1998)—explicitly adopting minority
position]
B. Wrongful Death
1. Common Law—No Cause of Action [§1156]
At common law, no action could be brought for wrongfully causing the death of a human
being; i.e., the person responsible for the death could be held criminally, but not civilly,
responsible. Thus, apart from the law against murder, it was cheaper for one to kill a
victim than to scratch him!
2. Wrongful Death Statutes [§1157]

This situation was remedied in England by the passage of Lord Campbell’s Act in 1846,
essentially a “true” wrongful death statute (see below). Today, every American
jurisdiction has some type of statutory remedy for wrongful death.
a. Types of wrongful death statutes

(1) “Survival” type [§1158]
Some statutes authorize the survival of any action that the decedent himself
265
might have maintained, and enlarge it to include the damages sustained by his
estate by reason of his death (“survival type”).
Example: Damages recoverable under this type of statute therefore include
the decedent’s pain and suffering and medical expenses, together with loss
of future net earnings or savings.
(2) “True” type [§1159]
Most jurisdictions have statutes that create a new cause of action for the benefit
of particular surviving relatives (usually spouse, children, and parents), and
permit recovery only of the pecuniary loss sustained by the relatives. [Cal. Civ.
Proc. Code §§377.60 .62; but see Hopkins v. McBane, 427 N.W.2d 85 (N.D.
1988)—allowing recovery of damages for survivors’ mental anguish]
(a) No recovery for decedent’s damages [§1160]
Under this type of statute, any claim that the victim would have had against
the tortfeasor must be maintained in a separate survival action (by his
estate), although the two actions are usually prosecuted concurrently and
may ultimately benefit the same survivors. Thus, if the victim had incurred
wage losses, medical expenses, etc., prior to his death, these are recoverable
by his estate—as are pain and suffering in those states that permit survival
of such claims (see supra, §1153).
(b) Measure of damage—pecuniary loss [§1161]
The measure of damages under the “true” type of wrongful death statute is
the pecuniary loss suffered by the surviving relatives—i.e., the loss of the
value of the companionship, support, services, and contributions that they
would have received from the victim had he not been killed. Even the value
of lost inheritance is considered a pecuniary loss. [Schaefer v. American
Family Mutual Insurance Co., 531 N.W.2d 585 (Wis. 1995)] (Note that
most states deny recovery for the survivors’ grief or mental anguish caused
by the wrongful death, although undoubtedly juries are influenced by this
factor in evaluating the pecuniary loss. [See, e.g., Wardlow v. City of
Keokuk, 190 N.W.2d 439 (Iowa 1971)])
1) Computing pecuniary loss
a) Wage earners [§1162]
If the decedent was a wage earner, the damages to survivors are
based on the estimated amount of earnings (less living expenses)
over the remainder of the decedent’s working expectancy and
divided among the eligible survivors.
266
b) Children [§1163]
If the victim was a child, the earnings are likely to be purely
speculative—as are any “contributions” or support that the parent
might have received. Even so, courts uniformly permit recovery,
instructing the jury to fix an award based on the “pecuniary value”
of the loss of the child’s life, including contributions that might have
continued after majority. [See, e.g., Mitchell v. Buchheit, 559
S.W.2d 528 (Mo. 1977)]
1/ Note
One way to calculate “pecuniary value” is to consider what the
parents would otherwise have received in their expected later
years from their (then) adult children, calculated in terms of what
it would cost to obtain comparable care from nurses and
comparable advice and counseling from advisers and therapists.
[Green v. Bittner, 424 A.2d 210 (N.J. 1980)]
c) Non-wage earners [§1164]
If the victim was a spouse or parent with no earnings, courts
generally permit recovery of an amount that would be required to
replace the services performed in caring for the children and family.
A non-wage earner’s advice and companionship to the family are
deemed lost “services,” and hence substantial verdicts can be
sustained as “pecuniary losses.” Some courts do not require proof of
the actual cost of replacing these services. [Wentling v. Medical
Anesthesia Services, 701 P.2d 939 (Kan. 1985)—$786,166.64 to
surviving husband and two children]
d) Retired persons [§1165]
Again, there is a problem in computing damages for the death of
elderly parents because it is highly speculative what support or
contributions the survivors could expect. But courts generally uphold
reasonable awards on the theory that every life has some pecuniary
value.
2) Effect of remarriage [§1166]
If the decedent was married, most courts bar evidence that the surviving
spouse has remarried (for fear of discouraging remarriage) or may
remarry (on the rationale that it is too “speculative” whether remarriage
will better the surviving spouse’s position financially). The jury thus
assesses evidence on the assumption
267
that the survivor will remain a widow(er) for the rest of her (or his) life.
[Groesbeck v. Napier, 275 N.W.2d 388 (Iowa 1979)]
(c) No punitive damages [§1167]
The general rule is that even in cases where punitive damages could have
been awarded against the defendant had the victim survived (i.e., where the
defendant acted “maliciously,” etc.), punitive damages are not awardable in
a wrongful death action. Courts have held that such a distinction is
constitutional. [Georgie Boy Manufacturing, Inc. v. Superior Court, 115
Cal. App. 3d 217 (1981)]
b. Defenses assertable
(1) Victim’s negligence, etc. [§1168]
Under either type of wrongful death statute, defenses that could have been
asserted against the decedent had she survived may be set up as defenses in the
wrongful death action. Thus, the victim’s contributory negligence, assumption
of the risk, etc., will all be held to bar maintenance of a wrongful death action
by her survivors. (In comparative negligence states, the victim’s negligence may
reduce the damages recoverable.) [Horwich v. Superior Court, 21 Cal. 4th 272
(1999)—recognizing general rule imputing victim’s negligence to those suing
derivatively]
(2) Victim’s recovery inter vivos [§1169]
Similarly, most courts hold that if the victim sued and recovered for the injury
during her lifetime, the recovery precludes any action after death based on the
same injury.
(3) Beneficiary’s negligence [§1170]
In the majority of jurisdictions (i.e., those having the “true” type of wrongful
death statute), contributory negligence of the sole beneficiary in causing the
accident that led to the victim’s death is a bar to any recovery (or a basis for
reducing recovery in a comparative negligence jurisdiction).
(a) Multiple beneficiaries [§1171]
If there are several beneficiaries under the statute, and only one was
negligent, the damages recoverable are generally reduced proportionally (and
the negligent beneficiary’s recovery is reduced or barred). [Lucas v.
Mississippi Housing Authority, 441 So. 2d 101 (Miss. 1983); but see
Teeter v. Missouri Highway & Transportation Commission, 891 S.W.2d
817 (Mo. 1995)—allowing full recovery and requiring defendant to bring a
contribution action against the negligent beneficiary]
268
C. Injuries to Members of the Family

1. Loss of Consortium and Services
a. Common law
(1) Husband’s right—services and consortium [§1172]
The common law rule was that a husband had a right to the services and
consortium (society and sexual relations) of his wife and was entitled to
damages if deprived thereof. Thus, if a third person tortiously injured the wife,
causing her illness or other bodily harm, the husband had his own ancillary cause
of action against the tortfeasor for loss of his wife’s services and consortium
(together with the actual expenses he incurred for her care).
(2) Parent’s right—services only [§1173]
Either parent (father or mother) having the custody and control of a minor child
was deemed entitled to the child’s labor, and could maintain an independent
action against any third person who injured the child for loss of the child’s
earnings or services of economic value (together with any expenses incurred by
the parent for the child’s care). But no action was permitted for loss of the
child’s consortium (filial affection and society).
(3) Distinguish—no wife’s or child’s right [§1174]
A wife was not deemed to have any right to the services or consortium of her
husband; nor was a child deemed to have any right to the support of a
269
parent. The result was that although a wife or child was protected under
wrongful death statutes in the event the tortfeasor killed the victim, they had no
protection if the victim survived.
b. Modern law
(1) Either spouse can recover for loss of services and consortium [§1175]
Most states today have changed the common law rule so as to permit either
spouse to recover for loss of the other’s services and consortium, on the ground
that both spouses have equal rights in the marital relationship. [See, e.g.,
Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382 (1974)]
(a) What constitutes “loss of consortium” [§1176]
To establish loss of consortium, the plaintiff must show a complete loss of
the companionship of and intercourse with the injured spouse for some
definite period of time. Recovery is generally not permitted for injuries that
merely put a “strain” on the marital relationship (e.g., where injured spouse
scarred or disfigured). [Park v. Standard Chem Way Co., 60 Cal. App. 3d
47 (1976)]
1) Spouses only [§1177]
The relationship must be one of legal marriage. Thus, a long-term live-in
lover may not recover for injuries suffered by his or her partner, neither
may a person recover for injuries suffered by his or her prospective
spouse during their engagement. [Elden v. Sheldon, supra, §774; but
see Dunphy v. Gregor, supra, §774—contra]
a) No recovery against negligent spouse [§1178]
The deprived spouse has no cause of action for loss of consortium
against the negligent injured spouse. [McIntosh v. Barr, 397
N.W.2d 516 (Iowa 1986)]
2) Distinguish—death of spouse [§1179]
If a spouse has been killed, the only remedies available to the surviving
spouse are the survival and wrongful death statutes. Almost all courts
have refused to create common law loss of consortium actions in such
cases. [Liff v. Schildkrout, 49 N.Y.2d 622 (1980); but see Gaudette v.
Webb, 284 N.E.2d 222 (Mass. 1972)—recovery for wrongful death has
common law origin]
Only Utah rejects consortium actions altogether. [Boucher ex rel. Boucher
v. Dixie Medical Center, 850 P.2d 1179 (Utah 1992)]
(2) Parent can recover for loss of child’s services and consortium [§1181]
Most states permit a parent to recover for loss of an injured child’s consortium.
270
[See, e.g., United States v. Dempsey, 635 So. 2d 961 (Fla. 1994); Gallimore
v. Children’s Hospital Medical Center, 617 N.E.2d 1052 (Ohio 1993); but see
Powell v. American Motors Corp., 834 S.W.2d 184 (Mo. 1992)—contra;
Estate of Wells v. Mount Sinai Medical Center, 515 N.W.2d 705 (Wis. 1994)
—no action by parent for loss of companionship of adult child]
(a) Damages [§1182]
The older rule limited the recovery to economic losses, but later cases
extend recovery to loss of the child’s society and comfort. [See, e.g.,
Howard Frank, M.D., P.C. v. Superior Court, 722 P.2d 955 (Ariz. 1986)]
(b) Extent of harm [§1183]
For the parent to recover for loss of the child’s consortium, the injury does
not necessarily have to be the functional equivalent of death or be
characterized as “catastrophic.” [Pierce v. Casas Adobes Baptist Church,
782 P.2d 1162 (Ariz. 1989)—evidence of significant interference with child’s
capacity to interact with parents in a normally gratifying way may suffice]
(c) Limitation—minors [§1184]
Most states limit the action to injuries to minor children. A minority of states
extend it to adult children. [See, e.g., Howard Frank, M.D., P.C. v.
Superior Court, supra]
(3) Child cannot recover for loss of parent’s consortium [§1185]
Most states deny recovery when children sue for loss of the consortium of their
injured parents. [See, e.g., Borer v. American Airlines, Inc., 19 Cal. 3d 441
(1977); but see Villareal v. Arizona Department of Transportation, 774 P.2d
213 (Ariz. 1989)—small minority contra]
c. Effect of victim’s contributory negligence [§1186]

Most courts treat the spouse’s or parent’s claim for medical expenses and loss of
consortium as “derivative” of the victim’s claim. Thus, they hold that the victim’s
contributory negligence (or assumption of the risk or other valid defense) bars the
spousal or parental claim as well (or, in comparative negligence states, reduces
damages proportionately). [See, e.g., Blagg v. Illinois F.W.D. Truck & Equipment
Co., 572 N.E.2d 920 (Ill. 1991)]
d. Joinder requirement [§1187]

To minimize the possibility of double recovery, the spouse’s or parent’s claim for loss
of consortium must be joined in the same action with the victim’s claim for personal
injury. Thus, no consortium recovery is allowed if the victim has settled or already
recovered. [Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974)]
271
2. Prenatal Injuries to Child
a. Early view—no recovery [§1188]

Early cases denied a child any cause of action for injuries sustained prior to birth.
b. Modern view—recovery allowed by virtually all courts [§1189]

The modern view allows recovery by a child after birth for any prenatal injuries,
provided the child was shown to have been “viable” (i.e., capable of life apart from
the mother) at the time of injury. [See, e.g., Williams v. Marion Rapid Transit, 87
N.E.2d 334 (Ohio 1949)]
(1) Extension in a few states [§1190]
A small minority of courts has extended the cause of action to nonviable fetuses.
[See, e.g., Santana v. Zilog, Inc., 95 F.3d 780 (9th Cir. 1996); Farley v.
Sartin, 466 S.E.2d 522 (W. Va. 1995)]
(2) No recovery against negligent mother [§1191]
Even courts that permit an action for prenatal injuries against third parties deny
an action by the child against the mother. The reasoning is that it would be
against public policy to turn mother and fetus into legal adversaries. [Stallman v.
Youngquist, 531 N.E.2d 355 (Ill. 1988)—no action by infant for mother’s
negligent driving while pregnant]
c. Wrongful death [§1192]

There is a split as to whether an action can be maintained for the wrongful death of
an unborn child (miscarriage or stillbirth). Many states allow the action if the child
was viable (capable of life apart from the mother). [Volk v. Baldazo, 651 P.2d 11
(Idaho 1982)] A number of states refuse to recognize a wrongful death action for
miscarriage of a fetus or for a stillbirth, often on the basis that a fetus is not a
“person” within the meaning of the wrongful death statute. [See, e.g., Justus v.
Atchison, 19 Cal. 3d 564 (1977)] However, these states generally allow the mother
to recover for the physical and emotional injuries attending the stillbirth or
miscarriage. [See, e.g., Modaber v. Kelley, 348 S.E.2d 233 (Va. 1986)]
d. “Wrongful birth” [§1193]

Likewise, there is a split of authority as to whether plaintiff parents can recover
against a negligent defendant for the costs of raising and educating an unwanted child
(e.g., where D physician negligently performs a vasectomy, or D pharmacy
negligently sells diet tablets in place of oral contraceptives). Generally, recovery is
permitted by the mother for pain and suffering during pregnancy and delivery, for
related medical expenses, and for loss of consortium during this time. [See, e.g.,
Wilson v. Kuenzi, 751 S.W.2d 741 (Mo.) (en banc), cert. denied, 488 U.S. 893
(1988)—no cause of action for wrongful birth, but listing 17 states recognizing such a
cause of action; Miller v. Johnson, 343 S.E.2d 301 (Va. 1986)]
272
(1) Healthy children [§1194]

The modern trend is to permit recovery for the costs of raising an unwanted
healthy child [Zehr v. Haugen, 871 P.2d 1006 (Or. 1994)—negligently
performed sterilization makes surgeon liable for costs of child’s upbringing where
goal of family was to avoid added financial stress], but not all courts agree [see,
e.g., O’Toole v. Greenberg, 64 N.Y.2d 427 (1985)—denying upbringing costs].
States that do permit the action usually offset benefits of the birth against the
recoverable expenses. [See, e.g., Burke v. Rivo, 551 N.E.2d 1 (Mass. 1990);
but see Marciniak v. Lundborg, 450 N.W.2d 243 (Wis. 1990)—emotional
benefits of birth not set off against economic harm from birth]
(a) No duty to limit damages [§1195]
If recovery is allowed, plaintiffs do not have a duty to limit their damages
(under the doctrine of avoidable consequences in tort or mitigation in a
breach of contract action) by aborting the child. [Johnson v. University
Hospitals of Cleveland, 540 N.E.2d 1370 (Ohio 1989)]
(b) Statutory limitation [§1196]
Some states have adopted legislation barring actions for the “wrongful birth”
of healthy children. [Edmonds v. Western Pennsylvania Hospital
Radiology Associates, 607 A.2d 1083 (Pa. 1992), cert. denied, 510 U.S.
814 (1993)—upholding such a statute against constitutional challenge]
(2) Unhealthy children [§1197]
Courts are split on what recoveries are available to parents who, through medical
malpractice, conceive and bear children with genetic defects. The right to
recover in such cases has been limited to parents. [Michelman v. Ehrlich, 709
A.2d 281 (N.J. 1998)—rejecting grandfather’s suit for negligence that caused his
grandson to be born with a neurological disease usually fatal before the age of
five]
(a) Economic harm [§1198]
Most courts permit recovery for the extraordinary medical and related
expenses due to the nature of the child’s condition, but not for the usual
child-rearing expenses that would have occurred had the child been normal.
[See, e.g., Greco v. United States, 893 P.2d 345 (Nev. 1995); Schroeder
v. Perkel, 432 A.2d 834 (N.J. 1981); but see McAllister v. Ha, 496 S.E.2d
577 (N.C. 1998)—rejecting recovery of extraordinary expenses involved in
raising an impaired child after doctor negligently failed to inform plaintiffs of
test results showing they faced a one in four chance of having a child with
sickle cell disease]
273
1) Note
Damages will include sums for expenses during the child’s adult life as
well as childhood expenses if the state requires parents to support
disabled adult children. [Smith v. Cote, 513 A.2d 341 (N.H. 1986)]
(b) Emotional distress [§1199]
In many states, parents may recover for emotional distress caused by the
birth of the unhealthy child. [Greco v. United States, supra; Berman v.
Allan, 404 A.2d 8 (N.J. 1979)]
(c) No “wrongful life” suit by child [§1200]
Almost all states bar a suit by the unhealthy child. [See, e.g., Walker v.
Mart, 790 P.2d 735 (Ariz. 1990)—no “legally recognizable” injury; but see
Procanik v. Cillo, 478 A.2d 755 (N.J. 1984)—child can recover
extraordinary expenses for specialized treatment likely to be needed as an
adult, but not general damages for being born in an unhealthy condition]
3. Intentional Interference with Family Relationships
a. Alienation of affections
(1) Early view—recovery [§1201]
At common law, and still in many states, a husband could sue a third party who
had intentionally alienated the affections of his wife. Because the wife was
considered an “asset” of her husband, the wife was allowed no similar action.
(2) Modern view—split over spousal claim
(a) Action abolished [§1202]
Most states have abolished the action by either judicial or legislative action.
[Russo v. Sutton, 422 S.E.2d 750 (S.C. 1992)—listing 40 states; but see
Veeder v. Kennedy, 589 N.W.2d 610 (S.D. 1999)—retaining cause of
action and noting that of the states that have abandoned the alienation
action, only five had done so by judicial decision]
(b) Action preserved [§1203]
Where the action has been preserved, either spouse may bring it. [See, e.g.,
Kline v. Ansell, 414 A.2d 929 (Md. 1980); Veeder v. Kennedy, supra]
(3) Modern view—parent-child claims rejected [§1204]
When parents sue for alienation of a child’s affections, or vice versa, the claim
generally has been rejected because of fear of abuse and the potential impact on
family relations. [Wheeler v. Luhman, 305 N.W.2d 466 (Iowa
274
1981)—child cannot recover for alienation of mother’s affections; Bock v.

Lindquist, 278 N.W.2d 326 (Minn. 1979)—father cannot recover for loss of
10-year-old child’s affections]
(a) Application—religious groups [§1205]
Suits by parents against religious groups for the alienation of the affection of
their adult children have also been rejected. [See, e.g., Schuppin v.
Unification Church, 435 F. Supp. 603 (D. Vt.), aff ’d without opinion, 573
F.2d 1295 (2d Cir. 1977); Radecki v. Schuckardt, 361 N.E.2d 543 (Ohio
1976)]
(b) Exception—child abduction [§1206]
Some states recognize a cause of action against one who abducts or entices
away a minor child. [Silcott v. Oglesby, 721 S.W.2d 290 (Tex. 1986)]
b. Criminal conversation
(1) Early views [§1207]
At early common law, a plaintiff could sue for damages for “criminal
conversation” if he could prove that the defendant had had sexual relations with
the plaintiff’s wife. A few states did not require a showing of intercourse. In no
state could the wife sue.
(2) Modern view [§1208]
Most states have abolished this action because of its potential for blackmail and
doubt about its deterrent value. [Thomas v. Siddiqui, 869 S.W.2d 740 (Mo.
1994)]
c. Intentional interference with custodial rights [§1209]

In recent years, several states have recognized a cause of action for intentional
interference with a parent-child custodial relationship, often arising in the context of a
divorce or child custody suit. [Rest. 2d §700; see, e.g., D&D Fuller CATV
Construction, Inc. v. Pace, 780 P.2d 520 (Colo. 1989)—grandparents who aided
father in kidnapping child from mother may be held liable; Stone v. Wall, 734 So. 2d
1038 (Fla. 1999)—in father’s suit against members of exwife’s family for having
failed to return his child from a visit and then concealing the child, court recognized
action for intentional interference with custodial relationship; but see Larson v.
Dunn, 460 N.W.2d 39 (Minn. 1990)—rejecting tort claim against spouse for felony
refusal to return child because tort not in child’s best interest]
d. Emotional distress claims [§1210]

The courts are split over whether to permit an action for intentional infliction of
emotional distress where the action closely resembles one for alienation of affections
or criminal conversation that has been barred by the state. [See, e.g.,
275
Figueiredo-Torres v. Nickel, 584 A.2d 69 (Md. 1991)—despite abolition of actions

for alienation of affections and criminal conversation, patient could sue psychologist
for commencing romantic relationship with patient’s wife while treating couple for
marital problems; but see Koestler v. Pollard, 471 N.W.2d 7 (Wis. 1991)—state
policy against actions for criminal conversation would be subverted if claim could be
framed for emotional distress by alleging further facts]
D. Tort Immunity
1. Intrafamily Tort Immunity
a. Husband-wife
(1) Common law—absolute immunity between spouses [§1211]
The common law regarded the husband and wife as a single legal entity, and
accordingly provided that a husband and wife could not sue each other for
personal injury torts committed by one upon the other, whether before or during
marriage. [Thompson v. Thompson, 218 U.S. 611 (1910)]
(2) Abolition of immunity in most states [§1212]
Virtually all jurisdictions today have rejected the doctrine of interspousal tort
immunity entirely, rejecting the common law fiction of a single legal identity for
husband and wife. Some have abolished the immunity only as to intentional
torts, while others have abolished it as to all torts, intentional or negligent. [See,
e.g., Beattie v. Beattie, 630 A.2d 1096 (Del. 1993)]
(3) Immunity not applicable under respondeat superior [§1213]
Even where interspousal immunity has been retained, it does not shield an
employer from liability where an employee injures his spouse while acting within
the scope of the employment. The injured spouse can sue the employer under
respondeat superior; and the employer may have no right to indemnity from the
employee. (See Agency, Partnership & Limited Liability Companies Summary.)
b. Parent-child [§1214]
Although no such immunity was recognized under the English common law, the early
American decisions held that a child could not sue his parents (nor a parent her child)
for personal torts. Rationale: This rule was to preserve family harmony and parental
authority. [Hewellette v. George, 9 So. 885 (Miss. 1891)]
(1) Limitation—no immunity for property torts [§1215]
The immunity was recognized only as to personal torts. It never applied
276
to bar causes of action by a child against a parent for damage to the child’s
property.
(2) Modern trend rejects immunity [§1216]
Because of the obvious unfairness in many cases, the clear trend of authority
today is to restrict or reject the concept of parent-child immunity. [See, e.g.,
Glaskox ex rel. Denton v. Glaskox, 614 So. 2d 906 (Miss. 1992)—overruling
Hewellette v. George, supra, and rejecting parent-child immunity]
(a) Restricted to negligence [§1217]
Most courts have confined any immunity to negligence cases, thus allowing
a child to sue his parent, or vice versa, for willful torts. [See Schlessinger v.
Schlessinger, 796 P.2d 1385 (Colo. 1990); Crotta v. Home Depot, Inc.,
732 A.2d 767 (Conn. 1999)]
(b) Abolished [§1218]
A growing number of states have abolished parent-child immunity entirely—
on the ground that negligence actions are most likely to be brought only if
liability insurance exists, so that there really is no “threat to family
harmony.” [Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980)]
1) Limited duty [§1219]
Some states that have abolished the immunity nonetheless do not impose
a full duty of due care in the parental situation. [Zikely v. Zikely, 98
A.D.2d 815 (1983), affirmed on opinion below, 62 N.Y.2d 907 (1984)
—mother owes no duty of careful supervision over child who was
scalded after being left unsupervised while tub was filling]
2) Full duty [§1220]
Other states have imposed a normal duty of due care on the parent with
the fact of parentage being one of the factors going into the analysis.
[Broadbent v. Broadbent, 907 P.2d 43 (Ariz. 1995)—test is what an
ordinarily reasonable and prudent parent would have done in similar
circumstances; Hartman ex rel. Hartman v. Hartman, 821 S.W.2d
852 (Mo. 1991)—same]
3) Note
Parental immunity may not be a bar to recovery where there are
allegations of negligence arising apart from any duty to supervise the
child. [Cates v. Cates, 619 N.E.2d 715 (Ill. 1993)—father driving
negligently]
277
c. Other relationships [§1221]

Even where still recognized, the doctrine of intrafamily tort immunity does not extend
to relationships other than husband-wife and parent-child. Thus, e.g., brothers and
sisters can sue each other on any type of claim [Midkiff v. Midkiff, 113 S.E.2d 875
(Va. 1960)], although some states bar suit by one child for harm caused by a sibling’s
negligent supervision [see, e.g., Smith v. Sapienza, 52 N.Y.2d 82 (1981)].
2. Governmental Tort Immunity (Sovereign Immunity)
a. Traditional doctrine [§1222]

At common law, when a plaintiff attempted to sue the State for a personal wrong, the
State was held to be immune from tort liability. [Russell v. Men of Devon, 100 Eng.
Rep. 359 (1788)]
(1) State and federal [§1223]
Following this doctrine, it is usually held that not only are state and federal
governments immune from tort liability, but so also are various state and federal
agencies (hospitals, schools, etc.).
(2) Municipalities—no immunity for “proprietary” functions [§1224]
A great deal of law has developed regarding the tort liability of municipal
corporations. The law limits tort immunity to the “governmental” or “public”
functions. A municipality’s “proprietary” or “private” functions are not immune
and may therefore result in tort liability.
(a) “Governmental” vs. “proprietary” functions [§1225]
The difficulty arises in attempting to determine which city functions are
“governmental” and which are “proprietary”:
1) “Governmental” functions [§1226]
“Governmental” functions are those functions that can be performed
adequately only by the government—i.e., police, fire, courts, etc.
2) “Proprietary” functions [§1227]
“Proprietary” functions are those functions that the city performs, but
which could as well be provided by a private corporation,
278
particularly where the city derives revenue from the operation—e.g.,

water, gas, electricity, public halls, etc.
Example: The construction and maintenance of public streets,
highways, sewers, or other public improvements are generally
regarded as “proprietary” functions, but there is a minority view contra.
b. Status of doctrine today [§1228]

Many state courts have abolished the doctrine of sovereign immunity. [See, e.g.,
Muskopf v. Corning Hospital District, 55 Cal. 2d 211 (1961); Molitor v.
Kaneland Community Unit District No. 302, 163 N.E.2d 89 (Ill. 1959)]
(1) Legislative response [§1229]
State legislatures have often responded to judicial abolition by reenacting some
limited form of governmental immunity. [See Cal. Gov’t Code §§945 et seq.;
Harinek v. 161 North Clark Street Ltd. Partnership, 692 N.E.2d 1177 (Ill.
1998)]
(2) Equal protection not violated [§1230]
Sovereign immunity does not violate equal protection of the laws. [Martinez v.
California, 444 U.S. 277 (1980)—statutory denial of state’s liability for parole
decision is constitutional]
(3) Federal Tort Claims Act [§1231]
The Federal Tort Claims Act (“FTCA”) abolishes tort immunity (i.e., permits
the federal government to be held liable) for “negligent or wrongful act or
omission” by government employees, plus most intentional torts by federal
investigative or law enforcement officers. However, immunity is retained for
other intentional torts, and for strict liability and “discretionary” acts by
government employees. [28 U.S.C. §§1346, 2671 et seq.; Deuser v. Vecera,
139 F.3d 1190 (8th Cir. 1998)—holding that national park rangers’ decision to
release plaintiff without charging him with a crime was a discretionary function,
and thus rangers were immune from liability when plaintiff subsequently
wandered onto a highway and was struck and killed by a car]
(a) Immunity for intentional tort of agent [§1232]
If a government employee commits a battery, but the suit claim is based on
the negligence of the government in hiring the employee, some courts hold
that the claim is based on battery and thus barred. [See, e.g., Johnson v.
United States, 788 F.2d 845 (2d Cir.), cert. denied, 479 U.S. 914 (1986);
but see Doe v. United States, 838 F.2d 220 (7th Cir. 1988)—contra]
(b) Feres doctrine [§1233]
Under a judicially created exception to the FTCA, members of the
279
armed forces injured “in the course of activity incident to service” are
denied tort recoveries against the government. [Feres v. United States, 340
U.S. 135 (1950)] The Supreme Court has expanded this restriction to
injuries that occur outside the command structure [United States v.
Stanley, 483 U.S. 669 (1987)—army officer given LSD without his
knowledge during an experiment] and where the tort is committed by a
federal civilian employee [United States v. Johnson, 481 U.S. 681 (1987)].
(c) Government contractor defense [§1234]
A government contractor may generally assert the federal government’s
immunity as a defense to a products liability claim where it can show that it
followed reasonably precise government specifications, and that it warned
the government about any patent errors in the design or use of the
equipment. [Boyle v. United Technologies Corp., 487 U.S. 500 (1988)]
c. Liability of governmental officers [§1235]

In addition to the government’s immunity, government officers in their private
capacity may also be immune.
(1) High-ranking officers [§1236]
Judges, legislators, and high-ranking members of the executive branch (e.g.,
cabinet members and department heads) are completely immune from tort
liability for acts carried out within the scope of their duties, even if their
conduct involves “malice” or “abuse of discretion.” [Barr v. Matteo, 360 U.S.
564 (1959)—extending common law absolute privilege to acting director of a
federal agency]
(2) Lower-level officers
(a) Federal law [§1237]
Lower-level administrative officers or employees are immune from claims of
negligence under federal law; and some states also follow this position.
(b) Some states—no immunity for “ministerial” functions [§1238]
Other states retain the common law rule that granted immunity to lower-
level governmental officers or employees only when performing
“discretionary” (as opposed to “ministerial”) functions.
1) “Discretionary” functions [§1239]
“Discretionary” functions are those in which the officer has some
element of personal judgment or decisionmaking (e.g., evaluating
property for assessment purposes or designing or routing a highway). In
carrying out these functions, the officer is granted
280
immunity as long as she was acting in good faith. [See Ross v.

Consumers Power Co., 363 N.W.2d 641 (Mich. 1984)]
2) “Ministerial” functions [§1240]
“Ministerial” functions are those in which the officer is left no choice of
her own; she is carrying out orders of others or established duties of her
office (e.g., repairing roads, driving vehicles). Here, there is no tort
immunity. If the officer negligently fails to perform her required duties
properly, she can be held personally liable for any damages resulting
therefrom—even if she was acting in good faith. [See, e.g., Collins v.
Kentucky Natural Resources & Environmental Protection Cabinet,
10 S.W.3d 122 (Ky. 1999)—no immunity for negligent performance of
coal mine inspection because that is ministerial duty]
(3) Statutory changes [§1241]
Under the Civil Rights Act of 1871 [42 U.S.C. §1983], a person acting under
color of state law who deprives anyone of a federal constitutional right is
subject to liability for damages.
(a) Basis of liability [§1242]
It now appears that liability will lie only if the deprivation was caused by
intentional and malicious behavior or “deliberate indifference.” [See, e.g.,
Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97
(1976)—for a section 1983 action, failure to adequately treat prisoner’s
medical problems must be result of “deliberate indifference”; but see
County of Sacramento v. Lewis, 523 U.S. 833 (1998)—in a police chase,
the “shocks the conscience” standard is required and cannot be met by a
mere showing of deliberate indifference]
(b) Interests protected [§1243]
Although it is clear that interests in physical well-being and freedom from
improper incarceration are protected under section 1983 [see, e.g., Imbler
v. Pachtman, 424 U.S. 409 (1976)], beyond this the limits are not yet clear
[see, e.g., Conn v. Gabbert, 526 U.S. 286 (1999)—interest in practicing
law not protected under Fourteenth Amendment as either “liberty” or
“property”; Siegert v. Gilley, 500 U.S. 226 (1991)—interest in reputation
not protected under Fourteenth Amendment].
(c) Defenses [§1244]
The statute is silent about defenses, and no general rules have emerged.
Some officials have received absolute immunity from liability while others
have been given only qualified immunity. [Briscoe v. LaHue, 460 U.S. 325
(1983)—police witness at trial has absolute immunity;
281
Wood v. Strickland, 420 U.S. 308 (1975)—school official has only

qualified immunity, which requires reasonable behavior and good faith;
Scheuer v. Rhodes, 416 U.S. 232 (1974)—state governor has only
qualified immunity; Pierson v. Ray, 386 U.S. 547 (1967)—judge has
absolute immunity against damage liability]
1) Municipalities [§1245]
When municipalities are sued under section 1983 (usually for failure to
establish official guidelines to guide staff behavior), they have no
immunity at all and may not rely on the good faith of the officials
involved. [Owen v. City of Independence, 445 U.S. 622 (1980)]
(d) Distinguish—federal agents [§1246]
Although federal agents are not covered under section 1983 (because the
statute applies only to persons acting under color of state law), analogous
civil liability may still be imposed if their behavior violates federal
constitutional rights. [Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971)—Fourth Amendment violation by FBI agents gives rise to
damage action]
1) Defenses [§1247]
The defenses are also analogous to those under section 1983. [Hunter v.
Bryant, 502 U.S. 224 (1991)—Secret Service agents have qualified
immunity for arrest; Cleavinger v. Saxner, 474 U.S. 193 (1985)—
members of federal prison disciplinary committee have qualified
immunity]
3. Charitable Immunity
a. Common law doctrine [§1248]

A separate ground of tort immunity was recognized at common law for
nongovernmental, charitable organizations and enterprises. [See, e.g., Parks v.
Northwestern University, 75 N.E. 991 (Ill. 1905)]
(1) Rationale
A rationale sometimes advanced for the doctrine of charitable immunity is that
the funds upon which a charity operates are donated, and that subjecting such
funds to the payment of tort claims would divert them from the purpose
intended by the donor. [Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599
(Mo. 1969); Feoffees of Heriot’s Hospital v. Ross, 8 Eng. Rep. 1508 (1846)]
(2) Application [§1249]
Thus, it was held for many years that private charities—hospitals, schools,
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community organizations (e.g., YMCA)—were not liable for torts committed by
their agents or employees.
b. Status today [§1250]

Almost all states have repudiated the doctrine, with courts finding that any interest in
protecting a donor or a volunteer is outweighed by the need to provide compensation
to victims of negligence. [See, e.g., Bing v. Thunig, 2 N.Y.2d 656 (1957); but see
Moore v. Warren, 463 S.E.2d 459 (Va. 1995)—volunteer was immune from liability
because driving for charitable organization at time of accident]
(1) Middle ground [§1251]
Some states have legislation that makes charities liable in tort but only to a
limited extent. [See, e.g., English v. New England Medical Center, Inc., 541
N.E.2d 329 (Mass. 1989), cert. denied, 493 U.S. 1056 (1990)—statute limiting
size of judgments against charities to $20,000 is constitutional; but see Hanvey
v. Oconee Memorial Hospital, 416 S.E.2d 623 (S.C. 1992)—statute limiting
liability of charitable hospital to $100,000 violates state constitution’s Equal
Protection Clause]
E. Release and Contribution Among Joint Tortfeasors

Various rules evolved at common law to cover “joint tortfeasors”—i.e., persons who
have either (i) acted in concert (by agreement) for the purpose of causing the plaintiff’s
injury; or (ii) acted entirely independently but whose acts have caused a single indivisible
injury to the plaintiff (e.g., two negligent motorists who collide, causing a single injury to
a pedestrian). Joint tortfeasors were traditionally jointly and severally liable for the harm
they caused (i.e., the plaintiff could sue any one or more and recover her full damages
from the tortfeasor(s) sued). (See supra, §418.)
a. Indivisible injury—conduct need not be simultaneous [§1253]

Where there is an indivisible injury, simultaneous conduct may not be necessary to a
finding of joint and several liability. [Ravo ex rel. Ravo v. Rogatnick, 70 N.Y.2d
305 (1987)—pediatrician whose negligent treatment of infant contributed to injury
that infant suffered at birth due to negligence of obstetrician was jointly and severally
liable for indivisible injury]
2. Judgment and Satisfaction [§1254]

An unsatisfied judgment against one of several joint tortfeasors does not bar the
plaintiff’s action against the others. [Verhoeks v. Gillivan, 221 N.W. 287 (Mich. 1928)]
However, the satisfaction of a judgment against one tortfeasor extinguishes
283
the cause of action and bars any later suit for a greater or additional amount against any
of the others. Rationale: Satisfaction of the court-ordered amount is the equivalent of
payment of the damages sustained.
3. Releases—Early Rule [§1255]

Some courts originally held that a claim or a judgment was extinguished if the plaintiff
released one of several joint tortfeasors—i.e., “release of one operates to release all”—
and this held true regardless of the sufficiency of compensation paid for the release.
[Aljian v. Ben Schlossberg, Inc., 73 A.2d 290 (N.J. 1950)]
a. Rejection of early rule [§1256]

A growing number of states have by statute rejected this rule entirely. [See, e.g., Cal.
Civ. Proc. Code §877—release does not discharge other tortfeasors, but reduces
claims against them; Unif. Comparative Fault Act §6]
b. Avoidance of early rule [§1257]

Many courts have circumvented the doctrine that a release of one releases all joint
tortfeasors by upholding a release with reservation of rights (i.e., a provision in the
release that it will not prejudice the plaintiff’s rights against other tortfeasors) or by
permitting a covenant not to sue (or a covenant not to execute on a judgment) in lieu
of a release. [See, e.g., Cox v. Pearl Investment Co., 450 P.2d 60 (Colo. 1969)]
Other courts have held that a release discharges only those parties it specifically
names. [See, e.g., Alsup v. Firestone Tire & Rubber Co., 461 N.E.2d 361 (Ill.
1984)]
4. Contribution
a. Common law—no contribution [§1258]

The common law rule was that “no contribution is allowed between joint
tortfeasors,” meaning that if a judgment was recovered and satisfied against one
tortfeasor, he had no right to recover from the others their pro rata share. Rationale:
A “wrongdoer” should not invoke the aid of the courts to force other wrongdoers to
help him shoulder the load.
b. Modern view—contribution allowed in negligence cases [§1259]

Today, virtually all states permit contribution among negligent (but not intentional)
joint tortfeasors. Thus, contribution is not allowed where punitive damages are
awarded. [Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363 (2d Cir. 1988)
—highly culpable defendant should not be allowed chance to escape payment of
imposed penalty]
(1) But note
Contribution operates only in systems that apply joint and several liability. Many
states have abolished that rule or restricted its application. (See infra, §1331.)
284
c. Impact of comparative negligence [§1260]

A number of states have retained the rule of joint and several liability among joint
tortfeasors notwithstanding the adoption of comparative negligence. The purpose of
comparative negligence is to protect negligent plaintiffs against the harshness of the
“all or nothing” rule of contributory negligence, rather than to eliminate joint and
several liability. [Ravo ex rel. Ravo v. Rogatnick, supra, §1253—each joint
tortfeasor remains individually liable for all damages caused, but contribution allowed
between them on comparative fault basis]
d. Limitation [§1261]
Joint and several liability may be inconsistent with the rationale of market share
liability (see supra, §427) if the goal is to match an individual defendant’s total
liability to its market share. To prevent a manufacturer with a small market share
from being held liable for damages of an insolvent manufacturer with a large market
share, defendants are only severally liable for damages under most versions of
market share liability theory. [Brown v. Superior Court, 44 Cal. 3d 1049 (1988)]
F. Indemnity
1. Doctrine [§1262]
A defendant who is only secondarily liable for the plaintiff’s injury, but who is sued and
forced to pay a judgment, is entitled to indemnification against the party who was
primarily responsible for causing the injury. [See, e.g., White v. Quechee Lakes
Landowners’ Association, 742 A.2d 734 (Vt. 1999)]
a. Rationale
Indemnity is an equitable remedy granted to prevent the unjust enrichment that
would occur if one whose liability was merely secondary could be forced to bear the
debts of the “real” wrongdoer.
b. Application—vicarious liability cases [§1263]

The most common application of the doctrine is where the responsibility for the
plaintiff’s injury lies entirely with one defendant, but another has been held
vicariously liable for the injury.
Example: Employee E is negligent in driving Employer R’s truck, resulting in
injuries to P; P sues and recovers judgment against R on the basis of respondeat
superior (see supra, §609). R is entitled to indemnification against E—whether or not
P sued E.
Example: Similarly, a defendant is entitled to indemnification where she has

been held liable under “permissive use” statutes or the family purpose
285
doctrine (see supra, §§602-603), or for negligent performance of work by an

independent contractor (see supra, §§616 et seq.).
c. Distinguish—contribution [§1264]
Contribution involves wrongdoers who are jointly and severally liable; it requires
that each pay his proportionate share. Indemnity involves one who is primarily
responsible for an injury; it shifts the entire loss to his shoulders from another who
has been compelled to pay it because he was secondarily liable therefor.
2. Differing Degrees of Culpability [§1265]

In states with joint and several liability, indemnity is also available where the defendants
are both directly liable to the plaintiff, but the degree of their culpability differs greatly.
[Builders Supply Co. v. McCabe, 77 A.2d 368 (Pa. 1951)]
Example: A retailer who is held strictly liable for injuries caused by a defective
product she sells may obtain indemnity against the manufacturer whose negligence
(usually shown by the defect itself) caused the product to malfunction.
Example: Similarly, where the plaintiff has been injured as a result of concurrent
acts, one negligent and one intentional, the defendant who was only negligent may
be entitled to indemnity against the defendant who committed the intentional tort.
a. Nonfeasance vs. misfeasance [§1266]

In a few states, a defendant who was only “passively” negligent (i.e., nonfeasance—
such as failing to discover dangerous condition) may be entitled to indemnity from a
defendant who was “actively” negligent (i.e., misfeasance—such as creating a
dangerous condition). [Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal. 3d 622
(1975)]
3. Aggravation Cases [§1267]

If an original negligent tortfeasor has been held liable under proximate cause principles
for a physician’s negligent aggravation (see supra, §479), the original tortfeasor is entitled
to indemnity from the physician for the aggravation damages.
286
a. But note
A minority view is contra. [Stuart v. Hertz Corp., 351 So. 2d 703 (Fla. 1977)]
G. Statutes of Limitations
1. Typical Duration for Negligence [§1268]
A “statute of limitations” prescribes a bright-line time period during which a plaintiff may
bring an action. The typical duration for negligence cases is two or three years.
2. Accrual Rule [§1269]

The statutory period begins to run when the plaintiff’s claim “accrues.” In most states, a
claim for negligence accrues after the defendant commits a negligent act and when the
plaintiff suffers legally cognizable injury. In some states, a claim accrues upon the
defendant’s act, without regard to the plaintiff’s injury.
a. Common law—plaintiff’s knowledge irrelevant [§1270]

At common law, the accrual rule barred a plaintiff’s claim unless it was filed within
the statutory period, regardless of whether the plaintiff knew about the defendant’s
negligent act, the injury, or the causal connection between the two.
b. Modern view—discovery rule [§1271]

Most states have amended their statutes of limitations to provide that the statutory
clock does not begin to run until the plaintiff discovers that she is injured and that the
defendant caused the injury (or facts sufficient to indicate that further investigation
would reveal the defendant’s connection to the injury). [See, e.g., N.Y. C.P.L.R.
214-c; Hymowitz v. Eli Lilly & Co., supra, §428]
Chapter Seven:
Statutory Changes in Personal Injury Law
CONTENTS
Key Exam Issues

A. Changes Targeting Specific Kinds of Tort Claims §1272
B. Changes Affecting Tort Claims Generally §1329
287
Key Exam Issues
Since 1900, pressure has repeatedly been brought to bear on state legislatures to change
various aspects of traditional tort law. Motivations for change have varied from concerns
about inadequate compensation or inefficiency in the system to concerns that damages
awards had become excessive. Attempts at tort reform in response to these pressures
highlight some of the basic policy problems in tort law. One example of the legislative
response is comparative negligence (discussed supra, §§815 et seq.), which was instituted by
the state legislatures in most states. As with comparative negligence, the legislative response
has sometimes been directed at the entire tort system; sometimes it has targeted specific
kinds of tort claims.
Your Torts class may not have covered some or any of these statutory changes. However, in
answering a torts question on your exam, especially one involving joint tortfeasors or the
amount of damages that a plaintiff can recover, you may need to include a discussion of the
effect of relevant state statutes.
A. Changes Targeting Specific Kinds of Tort Claims

1. Workers’ Compensation
a. Motivation [§1272]
With the industrial revolution came a steadily increasing number of injuries and
deaths among workers. Under traditional tort principles, many workers were
completely barred from recovery by their own contributory negligence. In addition,
two new tort principles emerged during this period: assumption of risk, which barred
recovery by any worker who perceived the dangers of his employment, and the
fellow-servant doctrine, which provided that the employer could not be held
vicariously liable for the negligence of a plaintiff’s co-worker. In combination, the
three doctrines made recovery by injured workers virtually impossible.
b. Response [§1273]
Early in the 20th century, the states removed from the tort system virtually all claims
for personal injury by workers against their employers. The tort system was replaced
with a comprehensive system of workers’ compensation that now covers well over
80% of all workers, and is probably the most substantial statutory change in personal
injury law to have occurred in the United States. (It is the subject of a separate
course in many law schools.)
288
(1) Operation of workers’ compensation system

(a) Mandatory insurance [§1274]
In almost every state, private employers are required to acquire workers’
compensation insurance to cover their employees.
(b) Scope of coverage [§1275]
The insurance extends to all claims for personal injury that arise out of and
in the course of the worker’s employment, without regard to fault.
(c) Processing of claims [§1276]
A worker who is not satisfied with the settlement offered by the insurance
company may file an administrative claim. After the agency hearing, a
dissatisfied party may appeal to an administrative board and then, in most
states, to a state appellate court, but only on legal questions.
(d) Amounts recoverable [§1277]
Most workers recover all their medical expenses and up to two-thirds of
their lost wages. Although traditional noneconomic damages, such as pain
and suffering, are not available, all states provide lump sum payments for
loss of bodily parts or functions.
(2) Impact of workers’ compensation on tort recovery
(a) Exclusive remedy against employer [§1278]
A worker whose claim falls within the workers’ compensation system cannot
sue the employer in tort. Claims by family members are generally also
barred, even though workers’ compensation may provide no benefits to an
injured worker’s family.
1) Application
Even though the injury is covered, a particular harm suffered by
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the worker (such as loss of smell) may not be compensable under the
statute. Generally, no tort remedy is available to the worker in this
situation. [See, e.g., Fetterhoff v. Western Block Co., 49 A.D.2d 1001
(1975)—no tort remedy for worker’s noncompensable loss of sexual
function]
2) Exception—intentional tort [§1279]
In some states, a worker may escape coverage of the workers’
compensation system by showing that the injury resulted from the
employer’s commission of an intentional tort that was not suffered in the
course of the employment. [Magliulo v. Superior Court, 47 Cal. App.
3d 760 (1975)—allowing tort action to waitress who alleged that she was
injured when her employer hit her in anger and threw her down; but see
Livitsanos v. Superior Court, 2 Cal. 4th 744 (1992)—no tort remedy
for emotional distress intentionally or negligently inflicted by employer if
occurrence was within the “normal risks” of the employment
relationship, even if the compensation system offered no remedy
because no disability had been suffered]
(b) Claims against third parties allowed [§1280]
In most states, workers can bring tort actions against third parties involved in
the injury. For example, a worker can sue the manufacturer of a defective
piece of equipment.
1) Effect of compensation [§1281]
A worker who accepts compensation does not waive the right to sue a
third party in tort.
2) Collateral sources rule [§1282]
The collateral sources rule (supra, §539) generally prevents the third
party from reducing its damages by proving that the plaintiff obtained
compensation payments from the employer.
3) Employer’s right to reimbursement [§1283]
The employer generally has a lien on the worker’s tort recovery to cover
the compensation payments it has made to the worker. In addition, if the
worker fails to sue a third party, the employer can bring a tort action in
the worker’s name. [Boldman v. Mt. Hood Chemical Corp., 602 P.2d
1072 (Or. 1979)] In some states, the amount recoverable by the
employer is reduced if the employer’s negligence has contributed to the
injury.
4) Third party’s right to reimbursement [§1284]
If the employer was also at fault in the worker’s injury, most states
290
hold that the exclusivity of workers’ compensation bars the third party
from seeking contribution or indemnity from the employer. [Arthur
Larson, Third-Party Action Over Against Workers’ Compensation
Employer, 1982 Duke L.J. 483]
2. “No-Fault” Auto Insurance
Because auto accidents are so numerous and include so many small claims, auto
cases suffer particularly from many of the problems that critics identify with a fault-
based system: delays in receiving payments from liability insurers, malapportionment
of benefits by which small claims are treated very generously, inefficiency, high
insurance premiums, and dishonesty.
Almost half the states have changed the handling of auto accident claims by adopting
“no-fault” insurance plans.
(1) Operation of “no-fault” plans [§1287]
Although the plans adopted vary considerably, the following are the essential
provisions:
(a) Mandatory insurance [§1288]
All car owners are required to obtain and keep in effect insurance to cover
claims arising out of the operation of their cars.
(b) Scope of coverage [§1289]
The insurance extends to all claims of injury arising out of the use or
operation of any motor vehicle, without regard to fault.
1) Note
This includes claims allowed under traditional tort concepts, as well as
certain claims not currently allowed—e.g., claims by drivers who hurt
themselves solely through their own fault.
(c) Claims handled on “first party” basis [§1290]
Injured car occupants usually make claims against the policy covering the
cars they were riding in, so that in the typical two-car crash, the occupants
of each car claim against the insurance covering that car. Pedestrians injured
by autos generally make claims against the insurance covering the cars that
struck them. (Under a few plans, though, pedestrians who own cars make a
claim against their own insurers.)
1) Note
Because fault is immaterial, the claims procedure is relatively simple, and
any disagreement between the policy holder and the
291
insurance company as to the amount recoverable is subject to

arbitration.
(d) Damages recoverable [§1291]
None of the statutes provides coverage for pain and suffering or
disfigurement. Coverage is limited to economic losses (lost wages, medical
bills, etc.). However, the plans vary considerably as to the maximum
coverage, from $1,000 or $2,000 to as much as $50,000 and more.
(2) Impact of “no-fault” plans
(a) Curtailment of tort litigation [§1292]
The plans vary concerning the extent to which traditional negligence actions
(with traditional “fault” principles) are still permitted.
1) “Partial” abolition [§1293]
All existing statutes allow tort actions in at least some situations.
a) Application
Under some plans, tort actions against other drivers can still be
maintained for all but relatively minor cases. Thus, at one
extreme, a plaintiff can sue for pain and suffering whenever
medical expenses exceed $500. Under other plans, specifically
those (e.g., in Michigan, New York) with generous first-party
benefits, only cases of serious injury can be pursued in court
—e.g., cases involving death, permanent injury or disfigurement,
or inability to work for more than six consecutive months.
2) “Add-on” statutes [§1294]
Some states have simply added a no-fault system to the tort liability
system already in place. Any auto victim who receives no-fault
compensation can still sue in tort as before. The nofault insurer has
subrogation rights up to the amount it has paid to the victim under no-
fault.
(b) Elimination of double recovery by injured persons [§1295]
Most plans prevent the injured party from obtaining a duplicate recovery for
the same economic losses. This is usually accomplished by making no-fault
insurance the primary source of benefits, or by providing for automatic
subrogation for any payments made under any other insurance.
c. Future of no-fault [§1296]

The future of automobile no-fault insurance is somewhat uncertain. In recent years, a
few states have returned to the fault system.
292
3. Medical Malpractice
In the mid-1970s, physicians and surgeons were faced with rapidly escalating
malpractice insurance rates.
Virtually every state has since adopted legislation addressing the malpractice area.
However, statutory provisions vary.
(1) Shortened statute of limitations [§1299]
The most common change is to shorten the statute of limitations. Minors are
often required to sue within eight or 10 years of the infliction of injury, rather
than being able to wait until they reach majority. [But see Kenyon v. Hammer,
688 P.2d 961 (Ariz. 1984)—three-year statute violates state Equal Protection
Clause]
(2) Limits on pain and suffering [§1300]
A few states have placed limits on the amount that can be recovered for pain and
suffering. Such limits have been challenged on grounds that they violate the
separation of powers, the right to a jury trial, the right against takings of private
property without just compensation, and the rights of procedural and substantive
due process. [See, e.g., Fein v. Permanente Medical Group, 38 Cal. 3d 137,
appeal dismissed, 474 U.S. 892 (1985)—statute limiting pain and suffering
recovery in malpractice cases to $250,000 is constitutional; Pulliam v. Coastal
Emergency Services, 509 S.E.2d 307 (Va. 1999); but see Carson v. Maurer,
424 A.2d 825 (N.H. 1980)—cap on nonpecuniary damages violates state’s Equal
Protection Clause]
(3) Periodic payments [§1301]
Some states provide that if an award exceeds some minimum figure, the judge
may or must require that it be paid periodically rather than in a single lump sum.
If the victim dies before all payments are made, amounts still unpaid for pain and
suffering and for expected future medical expenses need no longer be paid.
[American Bank & Trust Co. v. Community Hospital, 36 Cal. 3d 359
(1984)]
(4) Legal fees [§1302]
In an effort to discourage attorneys from taking on frivolous cases, some states
have set sliding scale limits on the size of contingent fees that lawyers may
charge to represent victims in malpractice cases. The limits are lower than the
rates generally prevailing. [See, e.g., Roa v. Lodi Medical Group, Inc., 37 Cal.
3d 920 (1985)—upholding limits; but see Carson v. Maurer, supra—limits
violate equal protection]
(5) Collateral sources [§1303]
Some states have provided that if the plaintiff has received first party
293
insurance benefits or other help in meeting the costs imposed by the defendant’s
malpractice, the trier may deduct these benefits from the award. [See, e.g.,
Barme v. Wood, 37 Cal. 3d 174 (1984)—upholding provision; but see Farley v.
Engelken, 740 P.2d 1058 (Kan. 1987)—preferential treatment to health care
providers violates equal protection]
(6) Malpractice panels [§1304]
A few states have created three-member panels, consisting of a physician, an
attorney, and a judge, to conduct a pretrial liability review. If the panel reaches a
unanimous decision on the merits of the malpractice claim after an informal
hearing, that determination is admissible as evidence in any later trial. [See, e.g.,
Treyball v. Clark, 65 N.Y.2d 589 (1985)—statute does not violate party’s right
to jury trial or deny due process; but see Bernier v. Burris, 497 N.E.2d 763 (Ill.
1986)—statute impermissibly requires judge to share decisionmaking authority
with panel members]
4. Products Liability
The common law development of products liability led groups of manufacturers and
retailers to seek legislation to moderate the financial impact of the new decisions.
Despite calls for congressional action based on a need for national uniformity, federal
legislation to enact comprehensive statutory changes to govern products liability
claims has not been adopted. About half of the states, most of them nonindustrial
states, have adopted legislation drawing back in some respects from the common law
rules of strict liability.
(1) Statutes of repose [§1307]
The most common change has been the enactment of “statutes of repose,”
providing that no action may be brought on a defective product claim more than
a certain number of years after the product’s initial distribution. This might bar
an action even before the victim has been hurt (e.g., a defect in an airplane
might not cause an injury until after the statute of repose has expired). The
period adopted in most states is between 10 and 12 years. [See, e.g., Gibson v.
West Virginia Department of Highways, 406 S.E.2d 440 (W. Va. 1991)—10-
year statutory limitation constitutional; but see Berry v. Beech Aircraft Corp.,
717 P.2d 670 (Utah 1985)—statute violates state constitution’s guarantee of
open courts]
(2) State of the art [§1308]
Some states provide that a manufacturer’s compliance with industry custom will
bar recovery on a defective product theory.
294
(3) Compliance with federal standards [§1309]

Some states provide that compliance with federal standards (e.g., FDA
regulations) may bar recovery, or may bar recovery of punitive damages.
(4) Presumption of safety [§1310]
Some states provide that if the product has not caused harm for a certain
number of years, the plaintiff must present “clear and convincing” proof of a
claimed defect.
(5) Manufacturer primarily liable [§1311]
Some statutes provide that a nonnegligent retailer or distributor may not be held
liable, or may be held liable only if the manufacturer is insolvent. [Baker v.
Promark Products West, Inc., 692 S.W.2d 844 (Tenn. 1985)]
c. Vaccines [§1312]
Vaccines pose a special problem because of their importance and the tremendous
liability risk of producing them. In 1986, Congress enacted a modified nofault
compensation scheme for injuries resulting from certain childhood vaccines. The
victims are first offered generous no-fault compensation. If they reject the no-fault
award, they may sue in tort, but the federal statute reduces the situations in which
defendants may be found liable. [42 U.S.C. §§300aa-10 et seq.]
5. Miscellaneous Statutory Changes to Personal Injury Law
a. Duty to rescue [§1313]

A few states have passed criminal statutes requiring a person to render reasonable
assistance to one exposed to grave physical harm unless the effort would endanger
the person or interfere with important duties that person owes to others. [See, e.g.,
12 Vt. Stat. Ann. §519] None of these states had imposed a civil duty to rescue.
(1) Use of incentives [§1314]
Recall that almost all the other states have proceeded by legislating exceptions to
the duty of due care so as to encourage physicians and others to volunteer aid
(see supra, §566). [See Mass. Gen. Laws Ann. ch. 94, §305D—using good faith
standard for restaurant employees to try to help choking customers; Volunteer
Protection Act of 1997, 42 U.S.C. §§14501 et seq.—volunteers of nonprofit
organizations and governmental entities are not liable for negligence; 42 U.S.C.
§1791(c)(2)—good faith standard used for food suppliers who donate leftover
food to nonprofit organizations; Cal. Civ. Code §1714.25(b)—same]
b. Dram shop liability [§1315]

A number of states have enacted restrictions on the liability of taverns and social
hosts who serve alcohol to people who get drunk and injure third parties (see supra,
§§636-649). [Cory v. Shierloh, 29 Cal. 3d 430 (1981)]
295
c. Victims of violent crimes [§1316]

To meet the problems of insolvent defendants, most states have adopted legislation to
provide aid to some victims of violent crimes.
(1) Common provisions [§1317]
Common features include requirements that the victim report the crime quickly
and cooperate with the police. Crimes within the family are usually excluded.
(2) Financial hardship [§1318]
States are split over whether all victims are eligible, or only those who would
suffer financial hardship if uncompensated. [See, e.g., Regan v. Crime Victims
Compensation Board, 57 N.Y.2d 190 (1982)]
d. International airplane crashes [§1319]

To meet problems of international legal conflicts, many nations, including the United
States, have joined the Warsaw Convention, which provides the victims of any
international air mishap with a strict liability recovery of a limited amount of
damages. [See, e.g., Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991)—no
recovery for emotional distress unaccompanied by physical injury; Air France v.
Saks, 470 U.S. 392 (1985)]
(1) Recovering beyond strict liability [§1320]
Although the Convention has been modified several times to increase the amount
recoverable without proof of fault, “willful misconduct” must be established in
order to recover any additional amount. [See Piamba Cortes v. American
Airlines, Inc., 177 F.3d 1272 (11th Cir. 1999)]
(2) Death on the High Seas Act [§1321]
Because the Warsaw Convention does not specify what substantive law is to be
used to determine what types of damages are recoverable, the courts must look
elsewhere. In crashes over international waters, the federal Death on the High
Seas Act (“DOHSA”) provides the relevant American law. [Zicherman v.
Korean Air Lines Co., 516 U.S. 217 (1996)—DOHSA does not permit
survivors of international plane crash to recover for lost society]
(a) Application
State law, not the DOHSA, applies to crashes within the 12-mile territorial
limit. [In re Air Crash off Long Island, New York, 209 F.3d 200 (2d Cir.
2000)—TWA 800 crash eight miles off shore did not occur on the “high
seas” and thus is governed by state law]
e. Nuclear accidents [§1322]

Because of the inability of nuclear power plants to get adequate liability insurance,
Congress enacted legislation to provide victims of nuclear accidents with
296
limited no-fault compensation. Damages in excess of an individual firm’s liability

insurance are to be paid out of a fund to which all federal nuclear licensees must
contribute. [See Duke Power Co. v. Carolina Environmental Study Group, Inc.,
438 U.S. 59 (1978)]
f. Black lung compensation [§1323]

Because workers’ compensation statutes often fail to compensate workers for
occupational diseases, Congress has enacted legislation to provide no-fault
compensatory payments to miners afflicted with black lung disease. [See 30 U.S.C.
§801]
g. September 11th victim compensation [§1324]

Shortly after September 11, 2001, Congress enacted a statute providing for nofault
compensation for all personal injury victims and survivors of those killed in the
attack. [49 U.S.C. §40101 note] The statute uniquely provides full compensation for
those victims, rather than the more modest provisions in other no-fault schemes.
Pursuant to this statute, some $7 billion was distributed to those eligible.
6. Federal Preemption of State Tort Claims
a. Federal legislation and authority [§1325]

Congress enacts legislation to regulate certain risks, such as those presented by
prescription drugs, consumer products, or interstate railroads. In the course of doing
so, Congress may displace the states from also regulating those areas because of the
Supremacy Clause in the United States Constitution declaring federal law to be
supreme to that of state law. [U.S. Const. art. VI, cl. 2]
b. Express preemption [§1326]

When Congress does write limitations on the authority of states to act in an area
addressed in legislation, it expressly “preempts” state law. Such limitations may not
only prevent the state from affirmatively adopting laws or regulations in the area, but
also bar the state from permitting tort suits that are related to or inconsistent with the
requirements imposed in the federal legislation. [Cipollone v. Liggett Group, Inc.,
supra, §1068—1969 amendments to Federal Cigarette Labeling and Advertising Act,
imposing required warnings of the dangers of smoking, preempted tort claims
claiming manufacturers inadequately warned of the dangers of smoking]
(1) “Requirement” [§1327]
In a series of decisions, the Supreme Court has declared that when Congress
provides in an express preemption clause that states may not impose certain
“requirements,” use of the word “requirement” includes tort law claims. [Riegel
v. Medtronic, Inc., 128 S. Ct. 999 (2008)—use of “requirement” in Medical
Device Amendments of 1976 preempted state tort claims based on design or
warnings defects in medical devices subject to full premarketing review by FDA]
297
c. Implied preemption [§1328]

Even when Congress has not included a provision expressly displacing state law,
“implied preemption” may prevent a state from imposing tort liability when such
liability would frustrate the objectives of federal legislation or impose obligations that
would conflict with federal law. [Geier v. American Honda Motor Co., supra,
§1068—federal regulations requiring some form of passive restraint impliedly
preempted state tort claim that automobile was defective for failing to employ one
particular form of passive restraint (an airbag)]
B. Changes Affecting Tort Claims Generally

1. Motivation [§1329]
In the mid-1980s, many perceived the entire tort system to be in a state of crisis.
Damages awards were skyrocketing. Some defendants who were jointly and severally
liable had to pay amounts that were grossly disproportionate to their degree of fault.
Insurance premiums soared. For an increasing number of entities, liability insurance
became completely unavailable. In response, a large majority of the states have adopted
legislation intended to deal with these problems. The most significant statutory provisions
involve limitations on joint and several liability, on damages, and on the collateral sources
rule.
2. Joint and Several Liability [§1330]

Some 40 states have enacted some form of limitation on joint and several liability (see
supra, §§418, 1252-1266). [See Coats v. Penrod Drilling Corp., 61 F.3d 1113 (5th Cir.
1995) (en banc)—summarizing state positions]
a. Abolition [§1331]
About 10 states have abolished joint and several liability entirely. Several more have
abolished it for all noneconomic damages, and several more have done so for all
cases in which the plaintiff is found to have been comparatively negligent.
b. Limitations based on defendant’s degree of fault [§1332]

A number of states have decided that the fault percentages should control the
abolition or restriction of joint and several liability. Thus, in cases in which the
defendant’s fault is less than the plaintiff’s fault, or where the defendant’s fault is less
than a given percentage of the total fault, some states bar joint and several liability. In
a few states, the defendants are jointly and severally liable, but a defendant’s liability
cannot exceed his fault by more than a certain percentage (e.g., a defendant who is
10% at fault may be jointly and severally liable for no more than 20% of the
plaintiff’s damages).
298
c. Exceptions based on nature of tort [§1333]

Some states that have enacted legislation curtailing joint and several liability provide
that it will still be available in cases involving certain kinds of torts. For example, a
state may provide that joint and several liability applies only if the defendants acted
with a common plan, if they committed an intentional tort, or if the action involves
defective products, toxic substances, or hazardous waste. [See, e.g., Smith v.
Department of Insurance, 507 So. 2d 1080 (Fla. 1987)—upholding statute that
abolishes joint and several liability with exceptions based on the defendant’s relative
fault, the nature of the tort, and the total amount of damages]
3. Limitations on Damages
a. Noneconomic damages [§1334]

More than a quarter of the states have enacted restrictions on noneconomic damages
awards (e.g., pain and suffering, emotional distress, loss of consortium). Usually
these take the form of a cap on all noneconomic damages. [See, e.g., Murphy v.
Edmonds, 601 A.2d 102 (Md. 1992)—$50,000 cap on noneconomic damages
constitutional] In a few states, the cap may apply to all noneconomic damages except
those for disfigurement or physical pain and suffering. [But see Smith v.
Department of Insurance, supra—cap on noneconomic damages violates Florida
Constitution’s guarantee of access to courts]
b. Periodic payments [§1335]

A number of states have provided that if a plaintiff’s award includes substantial
future damages, the defendant may be permitted to make periodic payments for
these future damages instead of paying a lump sum at the time of judgment. In about
half of these states, periodic payments are required; in the remainder, they are at the
discretion of the court. In some states, the requirement to make periodic payments
ceases with the death of the plaintiff; in others, at least some payments survive the
plaintiff. [See Ralph Nader, The Corporate Drive to Restrict Their Victim’s Rights,
22 Gonz. L. Rev. 15 (1986)]
c. Punitive damages [§1336]

Nearly half the states have enacted some form of restriction on punitive damages.
[See S. Loyd Neal, Punitive Damages: Suggested Reform for an Insurance Problem,
18 St. Mary’s L.J. 1019 (1987)] In addition, the Supreme Court has imposed federal
constitutional limitations on punitive damages awards under the Due Process Clause
of the Fourteenth Amendment. The Court established three factors to consider in
determining excessiveness: (i) the degree of reprehensibility of the breach of duty, (ii)
the disparity between the harm or potential harm suffered by the plaintiff and the
punitive damages award, and (iii) the difference between the punitive damages
awarded and the criminal penalties authorized or imposed in comparable cases.
[BMW of North America, Inc. v. Gore, supra, §26]
299
(1) Caps on damages awards [§1337]

Half of these states have enacted caps on punitive damages awards. These may
take the form of a flat cap (e.g., $150,000), a cap based on some multiple of the
compensatory damages awarded, or some combination of the two.
(2) Heightened standard of proof [§1338]
A number of states have provided that the plaintiff must prove by clear and
convincing evidence, or even beyond a reasonable doubt, that punitive damages
are warranted. [See Linthicum v. Nationwide Life Insurance Co., 723 P.2d
675 (Ariz. 1986)]
(3) Procedural reforms [§1339]
Some states have called for bifurcated trials when punitive damages are sought.
Others have prohibited plaintiffs from pleading punitive damages until after they
have made a preliminary showing of the defendant’s fault.
(4) Recipients [§1340]
Some states have required that a certain percentage of all punitive damages
awards be paid to a state fund, usually either a general state fund or a victims’
compensation fund. [See, e.g., Gordon v. State, 608 So. 2d 800 (Fla. 1992)—
statute giving state 60% of all punitive damages awards is constitutional; but see
Kirk v. Denver Publishing Co., 818 P.2d 262 (Colo. 1991)—statute giving
state one-third of such awards is unconstitutional]
d. Miscellaneous damages provisions

(1) Ad damnum clauses [§1341]
A handful of states have barred plaintiffs from stating in the complaint the
amount of damages sought.
(2) Additur and remittitur [§1342]
A few states have increased the courts’ power to modify the damages award or
to order a new trial where damages awarded by the jury are either inadequate or
excessive.
(3) Interest [§1343]
A handful of states have acted either to adjust the interest rate on damages or to
allow plaintiffs to recover interest for the period preceding the judgment. [See,
e.g., Fleming v. Baptist General Convention, 742 P.2d 1087 (Okla. 1987)]
4. Collateral Sources Rule [§1344]

More than a quarter of all the states have restricted the operation of the collateral sources
rule (see supra, §539). [James L. Branton, The Collateral Source Rule, 18 St. Mary’s
L.J. 883 (1987)]
300
a. Mandatory setoff [§1345]

Half of these states require that the amount reimbursed by a collateral source be
deducted from the plaintiff’s damages award. [See, e.g., Ryan v. City of New York,
79 N.Y.2d 792 (1991)—statute applies only to reduce tort recovery to extent of
collateral sources received for pre-verdict harm]
b. Discretionary setoff [§1346]

In a few states, reduction of the plaintiff’s award is at the discretion of the court or
jury.
c. Evidentiary rules [§1347]

A few states simply provide that evidence that the plaintiff was reimbursed will be
admissible at trial.
d. Exceptions for certain kinds of sources [§1348]

Generally, these statutes do not apply in cases in which the collateral source has a
right of subrogation or where reimbursement was received from certain specified
sources, such as life insurance.
5. Miscellaneous General Changes
a. Regulation of attorneys’ fees [§1349]

A few states have set standards for the attorneys’ disclosure of the fee structure.
Several others have provided that attorneys’ fees must be based on the amount
actually recovered by the plaintiff (rather than on the amount awarded), or have
made fees subject to a judicial review for reasonableness. [Charles P. Kindregan &
Edward M. Swartz, The Assault on the Captive Consumer: Emasculating the
Common Law of Torts in the Name of Reform, 18 St. Mary’s L.J. 673 (1987)]
b. Sanctions for frivolous claims [§1350]

Nearly half the states have enacted sanctions for frivolous claims. These generally
provide that the attorney or the party asserting the frivolous claim must pay the costs
and fees associated with defending it.
c. Alternative dispute resolution [§1351]

A few states have required that claims below a certain minimum be submitted to
arbitration.
Chapter Eight:
Defamation
CONTENTS
Key Exam Issues

A. In General §1352
B. Publication to a Third Party §1357
C. Harm to Reputation §1380
D. False Facts §1409
E. Causation §1422
F. Damages and Other Remedies §1423
G. Defenses §1451
H. Constitutional Privileges §1503
301
Key Exam Issues
The common law of defamation has always been confusing because it is a mixture of
political history, ecclesiastical law, and common law. It has always had a long prima facie
case plus a long list of defenses and privileges. This alone made it hard to learn. But then the
United States Supreme Court entered the field, complicating matters even more with its First
Amendment rulings.
The common law operated on a principle of strict liability. The prima facie case did not
include a requirement of fault. This meant that if a speaker hurt the reputation of the plaintiff
by the recitation of some facts and those facts were not shown to be true, the speaker might
be liable, despite a reasonable belief that the facts were true. The Supreme Court invalidated
this rule of strict liability in most, but perhaps not all, cases.
This means that your specific concerns in answering a defamation question include the
following:
1. Note that historically the plaintiff did not have to prove that the statement was false.
Rather, the defendant had to prove that it was true. (It was generally held that the
plaintiff had to allege falsity, but this was a matter of form and did not ease the burden
on the defendant.)
But note: If the statement is made about a matter of public concern, constitutional limits
require the plaintiff to prove falsity.
And note: If the statement is made about a public figure, constitutional limitations
require the plaintiff to prove knowledge that the defamatory statement was false or
made in reckless disregard for its truth. If the statement is made about a private person
and is about a matter of public concern, constitutional limitations require the plaintiff to
prove that the falsity in the defamatory statement was attributable to at least negligence.
2. Note too the curious role played by damages in this tort. In some situations, the plaintiff
must show a certain type of damages (special damages) to recover any money at all. At
other times, that showing is not required. The type of damages suffered may control
liability itself rather than simply measure the extent of the recovery.
3. Remember that various common law privileges survive the constitutionalization of
defamation law and may prevent liability under state law.
4. Constitutional issues are especially important in many defamation questions. In
analyzing constitutional issues, be sure to focus on the type of plaintiff—whether the
plaintiff
302
is properly called “public” or “private”—and then on the nature of the defamatory statement.
5. Also remember to consider the related torts of invasion of privacy and infliction of
emotional distress.
A. In General
Prima facie case at common law:
• Publication to Third Person
• Understood as Defamatory of Plaintiff
• Allegation of Falsity
• Causation
• Damages
• (Falsity—see infra, §§1409-1421)
2. At Common Law [§1353]

A prima facie case of defamation at common law required the publication to some third
person of a statement that harmed the reputation of the plaintiff, thereby causing the
plaintiff to suffer damages. Except for the defense of truth and for certain narrowly
defined classes of privileged communications, defamation was generally a strict liability
tort.
3. Constitutional Considerations [§1354]

The Supreme Court has altered the common law framework in a series of cases holding
that the First Amendment to the United States Constitution prohibits states from using
strict liability because of the chilling effect such liability may have on freedom of
speech.
4. Importance of Common Law [§1355]

Despite the constitutional changes, the common law is still central to any analysis.
Because the plaintiff’s claim is based on state tort law, it must pass all state law tests
before that state law has to be judged against constitutional standards.
5. Related Torts—Privacy and Emotional Distress [§1356]

For purposes of analysis, any problem that involves defamation may also involve an
invasion of the right of privacy (infra, §§1544 et seq.) or the wrongful causing of
emotional distress (supra, §§79 et seq.). Therefore, consideration should always be
given to establishing liability for those torts as well as defamation.
303
304
B. Publication to a Third Party

1. Language Uttered Only to Plaintiff Not Actionable [§1357]
The defamation must be “published” (i.e., communicated) to someone other than the
plaintiff because the recovery is intended to remedy damage to reputation. Statements
uttered by the defendant directly to the plaintiff (in person, by phone, or by letter), and
neither seen nor heard by anyone else, do not satisfy this requirement because there has
been no harm to the plaintiff’s reputation.
2. Any Third Person Sufficient [§1358]

Publication to any third person may be a defamation, regardless of any relationship to the
plaintiff or defendant.
Example: Remarks made by a supervisor to his superiors that defame the plaintiff-
employee are “published” for purposes of defamation law, although they may be
protected by privilege (see infra, §1468). [Simpson v. Mars, Inc., 929 P.2d 966 (Nev.
1997)—coworker’s defamatory statement to supervisor that plaintiff had sexually
harassed her was considered published for purposes of establishing prima facie case,
although defendant may try to show that the statement was privileged] Similarly, remarks
to one’s spouse are published but are privileged (see infra, §1461).
Example: Telephone callers’ statements to husband that wife was having an affair
and may have become pregnant by another man are considered published. [Ellis v.
Price, 990 S.W.2d 543 (Ark. 1999)]
a. Intracorporate publication rule [§1359]

Most courts have adopted the Second Restatement position that publication can
occur in intracorporate communications. [Rest. 2d §577 cmt. i; and see, e.g.,
Wallulis v. Dymowski, 918 P.2d 755 (Or. 1996); but see Dixon v. Economy Co.,
477 So. 2d 353 (Ala. 1985)—intracorporate communications not considered to be
published to a third party]
(1) Note
Even in courts that treat dictation as a publication, there is a strong argument that
such dictation should be privileged, because of the confidential relationship
involved. [Ostrowe v. Lee, 256 N.Y. 36 (1931)]
3. Manner of Publication [§1360]

Defamatory publications are not limited to statements that are printed and distributed.
Because the gist of the tort is harm to reputation, any action by the defendant that
causes the statement to be communicated to a third person is a “publication” of that
statement.
a. Words, gestures, conduct [§1361]

Words are certainly the most common manner of publication, but they are not
essential. Gestures or other conduct in public may suffice. [Rest. 2d §568 cmt. d]
305
Example: Marching customer P handcuffed through a store to its security office

was a pantomime that published a defamation. [K-Mart Corp. v. Washington,
866 P.2d 274 (Nev. 1993)]
4. Publication Must Have Been Intentional or Negligent [§1362]

To hold the defendant liable, the plaintiff must allege and prove that the defamation was
intentionally communicated by the defendant to some third person or that the
communication resulted from the defendant’s failure to exercise due care—i.e.,
negligence (e.g., leaving the writing where it could foreseeably be read by third persons).
a. Application—mass media [§1363]

This element will always be satisfied with publications by the media because those
publications are intended to reach third persons.
b. Application—communication with plaintiff overheard [§1364]

The issue of negligence in publication arises most frequently where the defendant
has communicated directly to the plaintiff, but some third person has seen or
overheard the communication (e.g., an accusation mailed by defendant to plaintiff,
opened by plaintiff’s spouse or secretary). In such cases, there is a negligent
“publication to a third person” only if the defendant had reason to foresee that this
would happen and a reasonable way to avoid it.
Examples: Mailing a defamatory letter to a blind person (foreseeable that she
will ask another to read it to her) is publication, as is defamation printed on a
postcard (foreseeable that mail carrier may read), or mailing a defamatory letter to P
at her office, if D had reason to know that P’s secretary usually opens her mail. [See,
e.g., Barnes v. Clayton House Motel, 435 S.W.2d 616 (Tex. 1968)]
c. Application—plaintiff compelled to repeat defamation [§1365]

If the defendant makes a defamatory statement to the plaintiff and the defendant has
reason to believe that the plaintiff may be forced to repeat the statement (e.g., where
an employer (D) terminates an employee (P) for dishonesty and the employee will
likely have to explain the reasons for discharge to future prospective employers [see
Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988)]), there is a split of
authority as to whether a publication occurs at the time of the repetition. [See
Overcast v. Billings Mutual Insurance Co., 11 S.W.3d 62 (Mo. 2000)—insurer’s
registered letter to be delivered only to the insured saying that insurer refuses to pay
for fire loss because the insured committed arson may provide the basis for
defamation action because it is foreseeable that when the insured seeks new
insurance he will have to explain the prior refusal to pay; but see Sullivan v. Baptist
Memorial Hospital, 995 S.W.2d 569 (Tenn. 1999)—no publication when former
employee repeats employer’s statement]
306
5. Who Is a Publisher? [§1366]

Three separate types of defendants may utter defamations. Each is subject to different
analysis:
a. Original publishers [§1367]

Anyone who has any part in the original publication is treated as an original publisher
and is therefore potentially liable for the defamation. For example, in the case of a
defamation appearing in a newspaper, the reporter, editor, and publisher may all be
held liable. [See Davis v. Hearst, 160 Cal. 143 (1911)]
(1) Distributors [§1368]
Newspaper distributors and carriers might also be responsible for publication (see
below).
(2) Principles of respondeat superior apply [§1369]
It need not be shown that a newspaper owner intended to publish the defamation
or failed to exercise due care. All that need appear is that the elements be shown
against someone for whom the owner is vicariously liable.
b. Republishers [§1370]
At common law, the republisher of a defamatory statement could be held liable
equally with the original publisher. Thus, someone could be sued for accurately
repeating someone else’s defamatory statement. However, the common law rule is
subject to certain exceptions for privileged communications, discussed infra,
§§1453 et seq.
(1) Rationale
The last utterance may do more harm than the first.
(2) Slander or libel [§1371]
If the original defamation is libel (generally, written defamation; see infra,
§1424), any republication—even an oral recitation of the writing—is libel. And
putting an oral defamation (slander; see infra, §1425) into writing makes the
repetition libel.
(3) Basis for liability [§1372]
Like original publishers, republishers—unless privileged—are held to the same
rules of strict liability on every element of the prima facie case except the
manner of publication, which must be intentional or negligent.
307
(a) Failure to remove [§1373]

Failing to remove a defamation posted on one’s premises by someone else
may also constitute a negligent republication of the defamation by the owner
of the premises. [See, e.g., Tacket v. General Motors Corp., 836 F.2d
1042 (7th Cir. 1987)—D employer allowed defamation of P worker to
remain on plant wall for seven months despite complaints; Hellar v.
Bianco, 111 Cal. App. 2d 424 (1952)—D tavernkeeper obligated to use due
care to remove defamatory statement about P’s chastity after learning that
the words had been scrawled on the wall of the men’s room]
(4) Effect of republication on liability of original publisher [§1374]
If there is a republication of the defamation, the original defamer’s liability is
increased by whatever harm the repetition causes if the republication was
either: (i) intended by the original defamer, or (ii) reasonably foreseeable.
[Rest. 2d §576; Barnette v. Wilson, 706 So. 2d 1164 (Ala. 1997)—police chief
could be held responsible for republication of his press conference statement
accusing former police officers of being “dirty cops”]
(5) Legal duty to republish [§1375]
One who has a legal duty to republish certain information has an absolute
privilege to do so and may proceed even if the statement published would
otherwise give rise to a defamation action, as in the case of an executor who is
under a legal duty to probate a will even if it contains defamations.
c. Disseminators [§1376]
A disseminator is a type of republisher who circulates, sells, rents, or otherwise deals
with the physical embodiment of defamatory matter (i.e., libraries, dealers or
distributors of books, newspapers, etc., that contain defamatory matter).
(1) Limited liability [§1377]
Disseminators are not held to the same standards of liability as the original
publisher and other republishers. Rather, a disseminator is held only to a
standard of due care. Thus, a disseminator who has no knowledge of the
defamation contained in the material being handled and has no reason to know
of the defamation is not liable for it. [Rest. 2d §581]
(2) Distinguish—printers [§1378]
Independent contract printers have no duty to inspect a publication for libelous
content. [See, e.g., Maynard v. Port Publications, Inc., 297 N.W.2d 500 (Wis.
1980)]
(3) Distinguish—computer bulletin boards [§1379]
The majority view is that a congressional statute bars holding Internet service
providers liable for the defamatory comments made by their subscribers. [47
U.S.C. §230; and see Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.
1997), cert. denied, 524 U.S. 937 (1998)]
308
C. Harm to Reputation
1. Defamatory Meaning [§1380]
To be actionable, a statement must have the potential to injure the reputation of the
plaintiff. There are two aspects to this inquiry: (i) whether the meaning alleged by the
plaintiff is defamatory, and (ii) if so, whether the statement can be interpreted to carry
that meaning.
a. Is the alleged meaning defamatory? [§1381]

To be defamatory, a statement must tend to lower the plaintiff’s reputation in the
estimation of the community where published or deter others from associating with
the plaintiff. [Rest. 2d §559]
(1) Narrow view [§1382]
Some states insist that the meaning expose the plaintiff to “hatred, contempt, or
ridicule” in order to be actionable. This is narrower than “lowering” the
plaintiff’s reputation in the estimation of the community.
Example: Under the narrow standard, a charge that P is insane might not be
considered defamatory. [See Grant v. Reader’s Digest Association, 151
F.2d 733 (2d Cir. 1945)]
(2) Community standards control [§1383]
Whichever standard of defamation is used, the question of whether a statement
is defamatory generally depends on the attitudes and mores of the audience to
whom it was communicated. To be actionable, a widely published statement
must injure the plaintiff “in the eyes of a substantial and respectable minority” of
the community. [See Rest. 2d §559 cmt. e]
(3) Defamatory effect [§1384]
In determining whether a meaning is defamatory, the focus is on how the words
were reasonably understood by the third persons to whom it was published, not
on what the speaker meant.
(a) Rationale
Unless someone understands the publication in a defamatory sense, the
plaintiff’s reputation is not harmed.
(b) Application—foreign language [§1385]
If the statement to a specific group of people is couched in a foreign
language, the plaintiff must show that at least one group member understood
the language. [Economopoulos v. A.G. Pollard Co., 105 N.E. 896 (Mass.
1914)]
309
(c) Who decides? [§1386]

If the effect is clear, the question of whether the meaning is defamatory may
be answered by the judge; if the effect of the meaning is unclear, a jury
decides.
Example: A statement that one committed a serious crime is
defamatory on its face as a matter of law. [Lawrence v. Bauer
Publishing & Printing Ltd., 446 A.2d 469 (N.J.), cert. denied, 439 U.S.
999 (1982)]
Example: As a matter of law, a statement that one knows an

imprisoned criminal and is interested in his well-being is not defamatory.
[Romaine v. Kallinger, 537 A.2d 284 (N.J. 1988)]
Example: A suggestion that a lawyer asked a client to sign an affidavit
that the lawyer knew was false might be found defamatory by a jury.
[Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373 (1995)]
Example: Statements that an air show pilot had executed a maneuver

“frowned upon” by the Federal Aviation Administration (“FAA”) could
not reasonably be interpreted to imply that the pilot violated FAA rules.
[Reesman v. Highfill, 965 P.2d 1030 (Or. 1998)]
(4) “Libel-proof plaintiffs” [§1387]
At common law, some courts dismiss cases brought by persons whose
reputations are so bad that a false statement could not hurt the reputation more
than nominally. [Jackson v. Longcope, 476 N.E.2d 617 (Mass. 1985)—
convicted murderer cannot sue over false report that he had also raped his
victims]
(a) No constitutional basis [§1388]
The libel-proof plaintiff doctrine is not required by the First Amendment.
Thus, it is solely a matter of state law, and states are free to
310
accept or reject it without constitutional constraint. [Masson v. New Yorker

Magazine, Inc., 501 U.S. 496 (1991)]
b. Can the words carry the suggested meaning? [§1389]

In determining the meaning attached to a statement, courts look at the fair and
natural meaning the statement will be given by reasonable persons of ordinary
intelligence. [Romaine v. Kallinger, supra]
(1) Context important [§1390]
Publications are generally read as a whole in light of the context in which the
statement appears. [Romaine v. Kallinger, supra]
Example: Three sentences of a newspaper article about an arrest and
assault did not say “alleged” although the other five did use that word.
Viewed in its entirety, the publication could not reasonably be read as a charge
by the newspaper that P committed the assault. [Foley v. Lowell Sun
Publishing Co., 533 N.E.2d 196 (Mass. 1989)]
(a) Exceptions—headlines and lengthy publications [§1391]
Although normally an article is to be read in its entirety for defamatory
thrust, this rule may not apply to headlines [Kaelin v. Globe
Communications Corp., 162 F.3d 1036 (9th Cir. 1998)—headline after
O.J. Simpson’s murder trial—“Cops Think Kato Did It!”—could be
defamatory even though article’s text indicated headline referred to perjury
charge], nor to very long articles where the defamatory thrust is at the
outset but is not explained away until much later in the article [Kunst v.
New York World Telegram Corp., 28 A.D.2d 662 (1967)].
(b) Format relevant [§1392]
Typography and paragraphing may be crucial in determining a reasonable
reader’s reactions. [Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th
Cir. 1975)]
Example: Where D writes that P was one of “several women described
as ‘associated’ with” a slain executive, the use of quotation marks
around “associated” permits a defamatory interpretation. [Wildstein v. New
York Post Corp., 40 Misc. 2d 586 (1963), aff ’d, 24 A.D.2d 559 (1965)]
(2) Defamation by implication and insinuation [§1393]
The form of the language used by the defendant is not controlling, as long as
third persons to whom it is published could reasonably interpret it in a sense
defamatory to the plaintiff. [Rest. 2d §565 cmt. b; Davis v. Ross, 754 F.2d 80
(2d Cir. 1985); Aronson v. Wiersma, 65 N.Y.2d 592 (1985)]
311
Example: D newspaper reported that a man who had objected to YMCA

policy had suffered a heart attack and died during a rally near a YMCA
board meeting. The paper also reported that the man’s family was upset because
he was not treated quickly. The next paragraph stated that P, the president of the
YMCA, was a doctor and was present at the meeting. The court held that a
reasonable reader could draw a defamatory meaning from these two paragraphs.
[Healey v. New England Newspapers, Inc., 555 A.2d 321 (R.I.), cert. denied,
493 U.S. 814 (1989)]
Example: Sometimes asking a question may be defamatory if it implies that

the speaker is asserting underlying facts. [Chapin v. Knight-Ridder, Inc.,
993 F.2d 1087 (4th Cir. 1993)—not defamatory to ask, “Who will benefit more
from [a project to send gifts to soldiers]—GIs or [plaintiff]?”]
(a) Minority view—“possible innocent meaning” rule [§1394]
A very few states have taken the position that where the defamation appears
only by implication or insinuation, it is not actionable if, in context, the
statement is reasonably equivocal—i.e., if it is plausible to give the
statement a reasonable innocent meaning. [See, e.g., Chapski v. Copley
Press, 442 N.E.2d 195 (Ill. 1982)]
(3) Incomplete defamation [§1395]
If the defamatory meaning arises only when the words are combined with
extrinsic facts not apparent on the face of the publication, the plaintiff must
allege and prove the extrinsic facts (called the “inducement”), that these facts
were known to some third person who read or heard the statement, and that the
implication (“innuendo”) of the statement, when combined with those facts, is
defamatory. [See Whitby v. Associates Discount Corp., 207 N.E.2d 482 (Ill.
1965)]
Example: D newspaper published a notice that P’s wife had just given birth
to twin sons. The statement on its face certainly was not defamatory, but it
became so when tied to the extrinsic fact—presumably known to some readers
—that P and his wife had been married only one month, the innuendo being that
P and his wife had been unchaste prior to marriage. [Morrison v. Ritchie &
Co., 39 Scot. L. Rep. 432 (1902)]
2. “Of and Concerning” the Plaintiff [§1396]

For a statement to be actionable, some third person must have reasonably interpreted it
to refer to the plaintiff.
a. Defamed person unnamed—colloquium [§1397]

A publication may clearly be defamatory of somebody, and yet on its face make no
reference to the plaintiff (e.g., “a certain well-known industrialist who lives on
Queensbury Road is keeping company with prostitutes”). In such a case, the
312
plaintiff must establish the “colloquium”—i.e., that some persons to whom the
statement was published reasonably interpreted it as applying to the plaintiff.
Example: A mother writes a letter to the editor attacking her child’s teacher
without naming the teacher. A jury might find that some readers knew that the
speaker’s only child was in third grade and that P was the only third grade teacher in
that school. [Zelik v. Daily News Publishing Co., 431 A.2d 1046 (Pa. 1981)]
(1) Fiction [§1398]
Depending on resemblances, a jury may be permitted to find that statements in a
novel are of and concerning a real plaintiff. [Bindrim v. Mitchell, 92 Cal. App.
3d 61, cert. denied, 444 U.S. 984 (1979)]
(2) Distinguish—unintended but explicit use of plaintiff’s name [§1399]
On the other hand, if the plaintiff’s name is used, he may maintain an action for
defamation even though the defendant was really referring to another person by
the same name—provided some persons to whom the defamation was published
reasonably interpreted it as applying to the plaintiff.
Example: D reports that “Artemus Jones,” supposedly a fictitious person,
was seen cavorting with a woman other than his wife. A real Artemus Jones
satisfies this element if he can show that persons who read the article reasonably
thought it referred to him. [Hulton v. Jones, 1910 A.C. 20] The same result
would follow if D was referring to a real Artemus Jones but some reasonable
readers understood it to refer to a different Artemus Jones.
b. Who may be defamed—in general [§1400]

Any living person, corporation, partnership, or other legally recognized entity may be
the subject of a defamation and may bring an action therefor.
313
(1) Other groups [§1401]

Clubs, fraternities, and other unincorporated associations do not possess
sufficient status as an entity to sue for defamation; however, individual members
may sue if the matter clearly defames them (see infra). Some decisions, on the
other hand, recognize the right of a labor union to sue as an entity—comparable
to the rights accorded a corporation or partnership. [Daniels v. Sanitarium
Association, 59 Cal. 2d 602 (1963)]
(2) Deceased persons [§1402]
No action will lie for the defamation of one who is already dead. [Keys v.
Interstate Circuit, Inc., 468 S.W.2d 485 (Tex. 1971)—no action by heirs of
“Bonnie and Clyde”]
(a) Distinguish—defamation of deceased reflecting upon living person
[§1403]
Note, however, that certain defamations of a deceased person may also
defame a living person, and hence may be actionable. [Rest. 2d §564 cmt. e]
Example: If D states to someone that Z, a deceased woman, had no
legitimate children, this might defame Z’s living children.
(b) Distinguish—survival of action [§1404]
Most states following the usual tort rule provide that when the plaintiff dies
after being defamed but before suit or trial, the claim survives. A few states,
however, hold that death before judgment destroys the defamation claim.
c. Individual claims arising from group defamations [§1405]

No individual member of a class defamed may bring an action unless the group is so
small that the statement may reasonably be interpreted as applying to each member.
[Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952)] Thus, the size of the
group is the key factor in determining whether an action will lie.
Example: The statement “all lawyers are shysters” cannot defame Attorney A
unless other facts suggest that the recipients reasonably understood that A was
being singled out (e.g., the speaker pointed a finger at A while making the statement).
[See, e.g., Thomas v. Jacksonville Television, Inc., 699 So. 2d 800 (Fla. 1997)—
individual members of group of 436 commercial net fisherman could not sue for
defamatory statements about group’s fishing practices]
Compare: If the statement was “the Election Board took bribes,” the target
group is smaller and, without more, the finger of defamation may point
sufficiently at each individual member.
314
(1) Minority view—“intensity of suspicion” test [§1406]

Some courts hold that the size of the group is not the sole consideration. Other
factors, such as definition of the group’s composition, degree of cohesiveness,
and prominence affect the intensity of suspicion that the defendant’s statements
cast on the group. [See, e.g., Brady v. Ottaway Newspapers, Inc., 84 A.D.2d
226 (1981)—fact question whether group of 53 police officers is too large a
group to sue]
(2) Reference to part of group [§1407]
If the group is small enough, a charge against “some” may be a charge against
all. [Neiman-Marcus v. Lait, supra—suit by 15 male salespersons over
statement that “most” of 25 male salespersons on staff were “fairies”; Gross v.
Cantor, 270 N.Y. 93 (1936)—group of 12]
3. Strict Liability [§1408]

Although the element of “publication” requires either an intentional or a negligent
publication, the element of “harm to reputation” is based on strict liability. This means
that at common law it is irrelevant whether the defendant anticipated or should have
anticipated that some readers would understand an article as it is now claimed they did,
or whether the defendant should reasonably have realized that a supposedly fictitious
name was used by some real person. However, constitutional law has restricted strict
liability. (See infra, §1503.)
D. False Facts
1. Falsity [§1409]
At common law, plaintiffs have to allege falsity, but defendants bear the burden of
proving that the statement was true. If the statement was true, any injury to reputation is
not actionable.
a. Knowledge of falsity [§1410]

The traditional common law rule was that a defendant was strictly liable for
defamatory statements—i.e., liable without regard to the defendant’s knowledge or
even negligent failure to know of a statement’s truth or falsity. This is still the rule in
many jurisdictions, although some have moved to a negligence standard. Where the
plaintiff is a public figure or official, however, or where the defamatory statement
was a matter of public concern, the United States Supreme Court has imposed
stricter standards in light of the First Amendment. (See infra, §§1503-1543.)
b. Truth is complete defense [§1411]

The general view is that truth of the defamatory matter is a complete defense—even
if the publication was made out of pure spite and even if the defendant did not
believe the statement was true at the time it was made. [Craig v. Wright, 76 P.2d
248 (Okla. 1938)]
315
(1) Sting of the charge must be proven [§1412]
The defendant need not prove the literal truth of the charge, but must only
establish its “sting.” Thus, a claim that the plaintiff robbed a bank of $50,000
may be shown to be true even if the amount taken was only $7,000. [See, e.g.,
Posadas v. City of Reno, 851 P.2d 438 (Nev. 1993)—charge of “lying under
oath” not shown to be true by showing that P police officer lied to two other
officers who questioned him while he was not under oath, because lying under
oath is a crime and the latter was not]
(2) Constitutional rule as to public officials [§1413]
Even if a state were to assert that truth alone was not enough, this view cannot
apply where a public official has been attacked in her public capacity. Freedom
of speech requirements in such cases dictate that truth alone must be a sufficient
defense. [Garrison v. Louisiana, 379 U.S. 64 (1964)]
2. Plaintiff’s Burden to Prove Falsity [§1414]

At least where the statement involves a matter of public concern, the First Amendment
requires all plaintiffs to bear the burden of proving that the statement is false.
[Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)]
a. Summary judgment [§1415]

Even though plaintiffs must prove the defamatory statement false, it may be that, as
a practical matter, any defendant who seeks summary judgment on falsity grounds
must demonstrate that the statement is true—in order to show that the plaintiff will
be unable to prove it false at trial.
3. Statement Cannot Be False Unless It Contains Assertions of Fact [§1416]

Only facts can be true or false. Thus, the alleged defamation must contain explicit
statements of fact or implied unstated facts that were false.
a. No automatic protection for “opinion” [§1417]

A statement generally characterized as an “opinion” may be defamatory if it can be
reasonably interpreted by the recipients as implying underlying defamatory facts.
[See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)]
(1) Note
States may choose to protect this type of speech to a greater extent than required
by the First Amendment. [See Immuno AG. v. Moor-Jankowski, 77 N.Y.2d
235, cert. denied, 500 U.S. 954 (1991)—New York state constitution allows
consideration of the “tone and apparent purpose” of the
316
communication to greater extent than federal law in deciding whether D’s

statement is protected “opinion”]
b. Determining what speech is factual [§1418]

Whether under federal or state law, determining whether speech is factual is a very
fact specific inquiry. Some representative cases follow:
Example: Mock advertisement published in Hustler Magazine suggesting that the
Reverend Jerry Falwell’s first sexual experience was a drunken tryst with his
mother in an outhouse could not reasonably be perceived as a factual statement.
[Hustler Magazine v. Falwell, supra, §96]
Example: Union official’s statement that former union attorney was a “very
poor lawyer” was mere expression of opinion. [Sullivan v. Conway, 157 F.3d
1092 (7th Cir. 1998)—statement too difficult to verify or refute in defamation suit]
Example: Calling a little-known version of the popular Broadway musical

Phantom of the Opera a “Fake Phantom … thriving off the confusion created by
the two productions … a rip-off, a fraud, a scandal, a snake-oil job” was
nonactionable opinion. [Phantom Touring, Inc. v. Affiliated Publications, 953
F.2d 724 (1st Cir. 1992)]
Example: A newspaper story questioning the “hefty mark-ups” charged by a

charity program selling gift packs for troops in the Persian Gulf did not allege
factual statements. [Chapin v. Knight-Ridder, Inc., supra, §1393]
Example: An accusation that a high school wrestling coach committed perjury

while testifying at a hearing in an attempt to get his team taken off probation was
“sufficiently factual to be susceptible of being proved true or false.” [Milkovich v.
Lorain Journal Co., supra]
Example: Calling P a “racist” is not actionable because the word is used so

casually today that it has lost its core meaning. [Stevens v. Tillman, 855 F.2d
394 (7th Cir. 1988), cert. denied, 489 U.S. 1065 (1989)]
Example: Statement implying that land developer was a slumlord who had
“done well through poorly maintained properties” was defamatory factual
allegation. [Ramunno v. Cawley, 705 A.2d 1029 (Del. 1998)]
Example: Even though a false allegation of incest is defamatory, no reasonable

person exposed to the invective of “motherf____” would conclude that speaker
was actually accusing plaintiff of having sexual intercourse with his mother. [Bullock
v. Jeon, 487 S.E.2d 692 (Ga. 1997)]
317
c. Statement of opinion not genuinely held [§1419]

As a result of the difficulty of proving the insincerity of an opinion, statements of
opinion not genuinely held by the speaker are nevertheless generally protected.
[Moldea v. New York Times Co., 22 F.3d 310 (D.C. Cir. 1994)—“There simply is
no viable way to distinguish between reviews written by those who honestly believe a
book is bad, and those prompted solely by mischievous intent”]
d. Hyperbole in public debate [§1420]

A broad statement made in the course of public debate will usually be characterized
as “mere hyperbole,” which is not actionable because reasonable people could not
interpret it as being an assertion of fact. Rationale: The audience expects a certain
degree of name calling and overstatement in public debates and does not take broad
statements literally. [Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596 (1976)]
Example: A newspaper report of a “blackmail” charge hurled at a city council
meeting against a real estate developer for refusing to sell his land to the city
unless it gave him a zoning variance on other property was not actionable. This could
not reasonably be understood as charging the crime of blackmail. At most it was a
claim that P was a hard bargainer—an accusation that was not defamatory.
[Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970)]
Example: The epithet “traitor” was not actionable when used in a union
newspaper against an employee who refused to join the union. [Old Dominion
Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264
(1974)]
Example: Calling a woman “a bitch” at a public meeting is vituperation and

abuse not meant to be taken seriously. [Ward v. Zelikovsky, 643 A.2d 972
(N.J. 1994)]
e. Specificity of language [§1421]

The more specific the language used, the more likely it is to be reasonably interpreted
as either a statement of fact or a statement based on underlying facts.
Example: The accusation that a journalist has libeled others was held actionable, but
not the charge that he ran an “openly fascist journal.” [Buckley v. Littell, 539
F.2d 882 (2d Cir. 1976), cert. denied, 429 U.S. 1062 (1977)]
E. Causation
318
1. Cause in Fact and Proximate Cause [§1422]

The cause in fact and proximate cause requirements for defamation are the same as
those for negligence (see supra, §§415-509). (Note, however, that recovery of special
damages (below) is limited to foreseeable damages.)
F. Damages and Other Remedies

The scope of damages recoverable in a defamation action under common law rules
depends on the form of the publication—whether it is libel or slander—and on the
motives with which it was uttered. Recoverable damages are also constitutionally limited
in several situations.
2. “Libel” and “Slander” Distinguished
a. “Libel” defined [§1424]

“Libel” is defamation usually appearing in some written or printed form, i.e., reduced
to some permanent, physical embodiment such as newspapers, letters, etc.
Generally, representations to the eye are libel. Thus, words, pictures, signs, statues,
films, and even certain conduct such as hanging the plaintiff in effigy may be libel.
[Whitby v. Associates Discount Corp., supra, §1395]
b. “Slander” defined [§1425]

“Slander” is usually oral defamation, i.e., representations to the ear. The principal
characteristic is that the defamation is in less permanent and less physical form.
Other examples include transitory gestures (e.g., nod of head). [Rest. 2d §568 cmt.
d]
c. Borderline cases—factors [§1426]

To decide whether a publication is libel or slander in difficult cases (e.g., defamations
contained on a phonograph record, or in a television or radio program), consider:
(i) The permanency of the form of publication;
(ii) The extent of dissemination; and
(ii) Whether the publication was deliberate or premeditated.
[Shor v. Billingsley, 4 Misc. 2d 857 (1956), aff ’d, 4 A.D.2d 1017 (1957)—capacity
for harm, including extent of dissemination, warrants treating extemporaneous remark
on live television as libel]
(1) Broadcasting [§1427]
Under the newer view, all radio and television publications are considered libel,
whether or not read from a manuscript. [First Independent Baptist Church v.
Southerland, 373 So. 2d 647 (Ala. 1979); Rest. 2d §568A]
319
(a) Statutory treatment [§1428]

Some states categorize media by statute. [See, e.g., Cal. Civ. Code §46—
defamations by radio or television are slander even if written scripts are
used]
3. Damages Rule for Slander [§1429]

Defamation in the form of slander is not actionable without a showing of special
damages, unless the slander is of a class that the law deems “actionable per se.”
a. Compensatory damages recoverable

(1) Special damages [§1430]
“Special damages” are those actually suffered by the plaintiff and not presumed
by law—e.g., loss of employment or business, or failure of any firm expectancy
(even a gratuity, such as a vacation paid for by friends).
(2) General damages [§1431]
A plaintiff who proves some amount of special damages may also recover
general damages, even if they far exceed the proven special damages.
(a) “General damages” defined [§1432]
General damages compensate for harm to the plaintiff’s reputation. Their
existence may be proven by such evidence as polls. But even if not
provable, their existence may be presumed by the jury based on the likely
effect of the defamation considering the number of people who learned of it,
the nature of the charge, and the identity of the speaker and the plaintiff.
Constitutional limits on the availability of general damages are discussed,
infra, §§1540 et seq.
(3) Emotional damages [§1433]
In addition to special and general damages, many states allow recovery for
emotional damages caused by the defamatory conduct. Due to the potential for
overlapping recovery, however, other states limit recovery for emotional
damages if the plaintiff also qualifies for presumed damages to reputation.
[Hustler Magazine v. Falwell, supra, §1418]
b. Slander per se—special damages not required [§1434]

There are only four situations in which slanders are deemed “actionable per
se”—i.e., where a showing of special damages is not required before the plaintiff
may recover general damages. (Of course, if the plaintiff has suffered any special
damages, they are recoverable; but in these four cases she can recover general
damages to her reputation regardless.) The four “slander per se” categories include
charges that the plaintiff has committed a serious crime, has a loathsome disease, is
incompetent in her trade or profession, or is unchaste.
(1) Crime [§1435]
Where the defendant charges that the plaintiff has committed a serious,
320
morally reprehensible crime, or has been incarcerated for such, the charge is
slander per se.
(a) Need not charge specific crime [§1436]
A specific offense need not be charged, as long as the defendant clearly
alleges that the plaintiff committed a fairly serious crime.
Example: The statement “you stole the money” has been held to be
slander per se. [Hruby v. Kalina, 424 N.W.2d 130 (Neb. 1988); but
see Liberman v. Gelstein, 80 N.Y.2d 429 (1992)—charge of bribing a
police officer is sufficiently serious to be slander per se, but charge of the
misdemeanor of harassment is not]
Example: A remark that P was a “faggot” was defamatory per se

because it imputed act of sodomy, which was criminal under state law.
[Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th Cir. 1997)] In
other states, although sodomy is not criminal, the allegation of
homosexuality may be actionable under “unchastity” analysis (see infra,
§1442).
(b) But note
Charging that the plaintiff is a “crook” or a “thief” is generally not slander
per se, absent some specific allegation of criminal misconduct. [Hruby v.
Kalina, supra]
(2) Disease [§1437]
Statements imputing to the plaintiff a currently existing, loathsome,
communicable disease are slander per se. This is generally limited to venereal
disease and leprosy; imputations of insanity, tuberculosis, etc., do not qualify.
[Rade v. Press Publishing Co., 37 Misc. 254 (1902)]
(3) Ineptitude in trade or profession [§1438]
Statements imputing to the plaintiff conduct, characteristics, or associations
incompatible with the proper performance of the plaintiff’s business, trade,
office, or profession are slander per se. These cases present the most frequent
and difficult problems.
(a) Rationale
The law is willing to presume actual damages in these cases because charges
that a person is incompetent in, or unsuitable for, her trade or profession is
likely to harm her livelihood.
(b) Defamation must be incompatible with business [§1439]
Whatever defamation is charged must actually be incompatible with the
plaintiff’s business or profession. Thus, the effect of a given charge may
depend on the nature of the plaintiff’s occupation.
321
Examples: Calling a doctor a “butcher,” a lawyer a “shyster,” a teacher

“immoral” or “insane,” or a businessperson “uncreditworthy” may all
be considered slanderous per se. [See, e.g., MacLeod v. Tribune
Publishing Co., 52 Cal. 2d 536 (1959)]
Compare: It is not actionable without a showing of special damages to

charge that a physician has committed adultery, or that a gas company
clerk has been consorting with prostitutes, because such imputations are not
incompatible with their positions. [Lumby v. Allday, 148 Eng. Rep. 1434
(1831)]
(4) Unchastity [§1440]
Statements imputing unchastity are slander per se. Traditionally this category of
slander per se has been limited to charges leveled against female plaintiffs, but
some states have extended the law to include males as well.
(a) Impotency [§1441]
In a few states, imputation of impotency to a man is also actionable per se.
[See, e.g., Cal. Civ. Code §46] The general view is contra.
(b) Homosexuality [§1442]
Even in a state that has legalized all private sexual conduct between
consenting adults, a false imputation of the commission of a homosexual act
may be slanderous per se. [Schomer v. Smidt, 113 Cal. App. 3d 828
(1980); but see Donovan v. Fiumara, 442 S.E.2d 572 (N.C. 1994)—
changing societal attitudes preclude false allegation of homosexuality from
being defamatory in absence of proof of actual damages]
4. Damages Rule for Libel [§1443]

If the defamation is in the form of libel and is clear on its face, most jurisdictions
presume general damages from the fact that it was published. [But see United
Insurance
322
Co. of America v. Murphy, 961 S.W.2d 752 (Ark. 1998)—joining a small group of
states that have abolished the doctrine of presumed damages in defamation cases] The
plaintiff need not show special damages to recover—although if she can show some,
she can recover for these also. If clear on its face, the defamation need not fit within any
of the slander per se categories.
a. Rationale
Because of the permanency of form, possible extent of dissemination, and other
features of libel, there is a greater likelihood of harm; thus, general damages may be
presumed. [Rest. 2d §569]
b. Libel per quod [§1444]

States disagree where the matter published is innocent on its face but becomes
defamatory when linked up with certain extrinsic facts (see supra, §1395). Some
follow the general libel rule and never require special damages. [See, e.g., Hearst
Corp. v. Hughes, 466 A.2d 486 (Md. 1983)] A second group presumes general
damages only where the libel would have been actionable as one of the four types of
“slander per se” (see above) if the words had been spoken. [See, e.g., Schlegel v.
Ottumwa Courier, 585 N.W.2d 217 (Iowa 1998)]
5. Punitive Damages [§1445]

Most states allow punitive damages if the defamation can be shown to have been uttered
with common law malice, such as hatred, ill will, or spite. [See, e.g., Norris v. Bangor
Publishing Co., 53 F. Supp. 2d 495 (D. Me. 1999); but see Le Marc’s Management
Corp. v. Valentin, 709 A.2d 1222 (Md. 1998)—rejecting common law malice standard
and requiring showing of actual knowledge of falsity]
a. Federal constitutional restrictions [§1446]

The First Amendment prohibits the imposition of punitive damages for defamations
involving matters of public concern if the falsity is attributable only to negligence.
[Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)] However, the Supreme Court
has not ruled on whether the First Amendment provides any special protection
against the imposition of punitive damages in libel cases. State courts have rejected
this claim. [DiSalle v. P.G. Publishing Co., 544 A.2d 1345 (Pa. 1988), cert.
denied, 492 U.S. 906 (1989)]
(1) What is a matter of public concern [§1447]
The courts decide whether a statement is of public concern on a case-bycase
basis, considering the content, form, and context of the publication. [Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)]
Example: The Supreme Court has held that where the defamation involves
a confidential report to five subscribers about a private plaintiff, it does not
involve a matter of public concern and punitive damages may be recovered even
for negligent defamations. [Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., supra]
323
Compare: If the local newspaper had published the same report, the
context would have been very different, and the report presumably would
have been covered by the Gertz rule.
b. State constitutional restrictions [§1448]

Some states disallow punitive damages under state constitutional law. [Wheeler v.
Green, 593 P.2d 777 (Or. 1979)] Recall also the recent statutory limits on punitive
damages generally, supra, §§1336 et seq.
6. Retraction [§1449]
Several states have adopted “retraction statutes,” the effect of which is to limit the
damages recoverable against specified media that publish defamations. Typically, these
statutes provide that the named defendant cannot be held liable for general damages
resulting from a defamatory publication unless it has failed to fairly and promptly publish
a retraction of the defamation after a formal demand by the injured party to do so.
Special damages may still be recovered, however. [See, e.g., Cal. Civ. Code §48a]
7. Injunctions [§1450]
Courts traditionally have refused to enjoin defamatory speech because of First
Amendment free speech concerns. [Kramer v. Thompson, 947 F.2d 666 (3d Cir. 1991)
—refusal to enjoin client from continuing to defame attorney]
G. Defenses
1. Consent [§1451]
Consent is a defense to defamation under the same rules that make it a defense to an
intentional tort. [See, e.g., Cox v. Nasche, 70 F.3d 1030 (9th Cir. 1995)—release signed
by job applicant protected former employer; Live Oak Publishing Co. v. Cohagan,
234 Cal. App. 3d 1277 (1991)]
2. Truth [§1452]
As discussed previously, truth is a complete defense to a charge of defamation in most
jurisdictions (see supra, §1411). Beyond that, most states, either by constitutional
mandate (see supra, §1414) or by common law, have imposed upon the plaintiff the
burden of proving falsity in almost all cases.
3. Common Law Absolute Privileges [§1453]

Absolute privilege is a complete defense to any defamation action; i.e., it is not affected
by a showing of malice, lying, abuse, or excessive publication, as in the case of
conditional privileges (see infra, §§1462 et seq.). Absolute privilege exists in the following
situations:
a. Participation in the processes of government
324
(1) Legislative privilege [§1454]

All federal and state legislative members are absolutely privileged to utter
defamations while on the floor of their legislatures or in committee sessions, etc.
There is no requirement of relevancy to any matter at hand. [Rest. 2d §590]
This protection is found in federal or state constitutional provisions. [See, e.g.,
Tenney v. Brandhove, 341 U.S. 367 (1951)]
(a) Inferior legislative bodies [§1455]
The modern view is to accord inferior legislative bodies absolute privilege
for statements made at meetings. [Rest. 2d §590 cmt. c; and see Sanchez v.
Coxon, 854 P.2d 126 (Ariz. 1993)] However, some states are contra (see
infra, §1463).
(2) Judicial privilege [§1456]
Any participant in a judicial proceeding is absolutely privileged to utter
defamations in the course of the proceeding provided there is some relevancy
(i.e., a reasonable relationship) to the matter at hand. This includes the judge or
any judicial officer, witnesses, attorneys, parties to the action, and jurors. [See,
e.g., Irwin v. Ashurst, 74 P.2d 1127 (Or. 1938); Rest. 2d §587; but see Park
Knoll Associates v. Schmidt, 59 N.Y.2d 205 (1983)—no absolute privilege for
organizer advising tenants applying for rent refunds]
(a) “Course of judicial proceeding” [§1457]
The defamation need not occur at the trial itself; it may be in a pretrial
hearing, deposition, etc. Judicial proceedings are generally deemed to start
when the complaint is filed; hence defamations in the complaint or any
document filed in conjunction with the complaint (e.g., a lis pendens) are
absolutely privileged. [Theran v. Rokoff, 602 N.E.2d 191 (Mass. 1992);
Rest. 2d §586 cmt. a]
Example: An individual who writes a letter to the state bar complaining
of an attorney’s misconduct, but who makes no corresponding public
announcement of the complaint is entitled to absolute immunity. [Tobkin v.
Jarboe, 710 So. 2d 975 (Fla. 1998)]
Example: Statements about a company’s lawyer made in a letter from a

prospective employee to the company regarding the prospective
employee’s desire to settle a pending National Labor Relations Board
proceeding were absolutely privileged. [Price v. Armour, 949 P.2d 1251
(Utah 1997)]
Compare: Attorneys were not absolutely privileged to send local

newspapers a copy of their demand letter because the newspapers were
unconnected with the proposed lawsuit. [Scott Fetzer Co. v. Williamson,
101 F.3d 549 (8th Cir. 1996)]
325
Compare: Lawyers who announce at a press conference the

forthcoming filing of a lawsuit are not entitled to absolute privilege.
[Green Acres Trust v. London, 688 P.2d 617 (Ariz. 1984); and see
Kennedy v. Zimmermann, 601 N.W.2d 61 (Iowa 1999)—statements by
attorney at press conference after filing suit are not absolutely privileged]
(b) “Relevancy” [§1458]
Statements made during judicial proceedings fall outside the absolute
privilege only if they are so palpably irrelevant to the subject matter of the
controversy that no reasonable person can doubt their irrelevancy or
impropriety. [McGranahan v. Dahar, 408 A.2d 121 (N.H. 1979)]
Example: In a suit where a businessperson was not a party, a lawyer’s
suggestion that the businessperson was connected to organized crime
was privileged. The businessperson’s criminal activity was relevant to a
determination of whether his partner knowingly participated in the securities
fraud charged in the underlying lawsuit. [Hugel v. Milberg, Weiss,
Bershad, Hynes & Lerach, LLP, 175 F.3d 14 (1st Cir. 1999); but see
Nguyen v. Proton Technology Corp., 69 Cal. App. 4th 140 (1999)—no
privilege for pre-litigation letter from a law firm concerning potential unfair
competition claims in which the firm states that the potential defendant’s
employee had been in prison for repeatedly assaulting his wife]
(c) Quasi-judicial proceedings [§1459]
Similarly, an absolute privilege applies in the case of quasi-judicial
proceedings (e.g., administrative hearings). [See, e.g., Miner v. Novotny,
498 A.2d 269 (Md. 1985)—citizen’s brutality complaint against deputy
sheriff; Pulkrabek v. Sletten, 557 N.W.2d 225 (N.D. 1996)—letter to
parole board]
(3) Executive privilege [§1460]
Absolute privilege is also provided for high-rank, policymaking executive
officers (cabinet members, department heads, etc.) of state and federal
governments when acting within the scope of their discretionary duties.
However, as with judicial participants, there is a requirement of relevancy here.
[Rest. 2d §591; and see Barr v. Matteo, supra, §1236; Kilgore v. Younger, 30
Cal. 3d 770 (1982)]
(a) Note
Some states extend this privilege to lower level executive officers. [See, e.g.,
City of Miami v. Wardlow, 403 So. 2d 414 (Fla. 1981); Williams v.
Fischer, 581 N.E.2d 744 (Ill. 1991)]
326
b. Domestic privilege [§1461]

Either spouse is absolutely privileged to utter defamations of third persons to the
other spouse. A few courts extend this absolute privilege to communications among
the immediate family (parent-child, etc.), but most treat the latter as only
conditionally privileged (see below). [Rest. 2d §592]
4. Common Law Conditional or Qualified Privileges [§1462]

A “conditional” (also called “qualified”) privilege exists when the potential speaker needs
to be encouraged to speak—i.e., needs protection from the strict liability that might
otherwise inhibit the potential speaker from speaking. A conditional privilege, unlike an
absolute privilege, can be lost through bad faith or abuse (see infra, §§1478 et seq.).
a. Recognized conditional privileges

(1) Inferior legislative bodies, inferior executive and administrative officers
[§1463]
Although, as noted above (supra, §1455), the modern view is that inferior
legislative bodies and executive officials have absolute privilege for their
statements within the scope of their offices, some states accord such statements
only conditional privilege.
(2) Protection of private interests [§1464]
A defendant is conditionally privileged to defame another, if the following
conditions are met:
(a) Protectable interest [§1465]
The defendant must have a reasonable belief that some important interest in
person or property is threatened; it can be his own interest, that of the
person to whom he publishes the defamation, or that of some third person;
and
(b) Relevancy [§1466]
The defamation published must bear some reasonable relevancy to the
interest sought to be protected; and
(c) Purpose to protect [§1467]
The defendant must have published the defamation in the reasonable belief
that the person to whom it was published was in a position to protect or
assist in the lawful protection of the interest.
(d) Volunteering information where relationship or common interest
exists [§1468]
Generally there must be some relationship between the publisher (the
defendant) and the person to whom the information is published—either
some family, business, or employment relationship—or a common interest in
business affairs. If there is such a relationship, the
327
defendant may be privileged to volunteer defamatory information. [Rest. 2d

§595(2)]
Examples: This covers the situation where a brother tells his sister,
“Don’t marry X; he has a venereal disease”; or an agent tells the
principal, “Don’t extend credit to X, she’s a deadbeat”; or an employee tells
his employer, “Don’t believe anything that X has told you about me; he’s a
chronic liar.” [Weenig v. Wood, 349 N.E.2d 235 (Ind. 1976)]
Compare: P’s immediate supervisor at P’s place of employment is not

privileged to relate to a customer the reason for P’s discharge (the
alleged defamation) because no common relationship or interest exists
between the supervisor and the customer. [Nelson v. Lapeyrouse Grain
Corp., 534 So. 2d 1085 (Ala. 1988)]
(e) Answering request for information where no relationship exists
[§1469]
If there is no such relationship or common interest, it usually must appear
that the defamation was made in response to a request for information by
the person to whom it was published, rather than volunteered by the
defendant.
1) Credit agencies [§1470]
Frequently, a credit bureau asks a defendant for information regarding
another person’s credit. In this case, the defendant’s response is
privileged, but if the defendant had initiated the call to the credit bureau
and volunteered the information, there would have been no privilege.
[See, e.g., Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal. 2d 412
(1965)]
2) Prospective employers [§1471]
Some jurisdictions hold that former employers have a conditional
privilege for responses (rather than volunteered statements) to the
plaintiff’s prospective employers where the prospective employers have
a legitimate and obvious interest in the employee’s qualifications. [See,
e.g., Erickson v. Marsh & McLennan Co., 569 A.2d 793 (N.J. 1990);
Coclin v. Lane Press, Inc., 210 A.D.2d 98 (1994)]
(f) Self-defense [§1472]
A person is privileged to respond to others’ attacks on her whether or not
any prior relationship exists. [Foretich v. Capital Cities/ABC, Inc., 37 F.3d
1541 (4th Cir. 1994)]
(3) Protection of public interest [§1473]
A person is conditionally privileged to defame another if he reasonably
328
believes his utterances are necessary to protect a legitimate public interest, and
that the person to whom the statement is made is empowered to protect that
interest.
Example: D is conditionally privileged to run up to a police officer shouting,
“There goes X—he just robbed the bank!”
(a) Exception—media defendants [§1474]
Mass media cannot claim the privilege of protecting the public interest for
having published an article of general interest to the community—even
though it warned the public against some asserted public problem. [See, e.g.,
Brown v. Kelly Broadcasting Co., 48 Cal. 3d 711 (1989)—consumer
report broadcast about problems with licensed contractor was not privileged
under common law]
b. Conditional privilege may be lost through bad faith or abuse
(1) Lack of honest belief in truth of statements made [§1475]
The general view is that the defendant must have an “actual, honest” belief in
the truth of the defamatory matter. Hence, there is no privilege if the defendant
knows that the statements are unfounded.
329
(a) Belief need not be reasonable [§1476]

Even totally unreasonable statements may be found to be privileged, but
lack of reasonableness is evidence that the defendant did not honestly
believe the truth of his statement. [Clark v. Molyneaux, 3 Q.B.D. 237
(1877)] But note: Some courts hold that a speaker who seeks to protect the
public interest must have reasonably believed his statement. [Rest. 2d
§598]
(b) Credit reports—honest and reasonable belief [§1477]
A minority view asserts that the defendant must have both an honest and a
reasonable belief in the truth of assertions made in credit standing cases, or
the privilege is lost. [Stationers Corp. v. Dun & Bradstreet, Inc., supra,
§1470]
(2) Malice in publication [§1478]
The defendant’s publication is privileged only if made, at least in part, in the
public interest or in the protection of some lawful private interest. If it appears
that the defendant was motivated solely by malice and an intent to injure the
party defamed, whatever conditional privilege the defendant otherwise would
have had is lost through abuse. [See, e.g., Sanborn v. Chronicle Publishing
Co., 18 Cal. 3d 406 (1976); Mihlovan v. Grozavu, 72 N.Y.2d 506 (1988)]
(a) “Malice” [§1479]
The type of malice required here is the same as that required under state law
for an award of punitive damages, i.e., hatred, spite, or ill will.
1) But note
A few courts have interpreted malice here to require “knowing or
reckless disregard” for the truth—a focus on the defendant’s attitude
toward falsity rather than on the defendant’s feelings toward the plaintiff.
[See, e.g., Marchesi v. Franchino, 387 A.2d 1129 (Md. 1978)] A few
other states have held that the plaintiff can show abuse of conditional
privilege by showing either type of malice. [See, e.g., Liberman v.
Gelstein, supra, §1436]
(3) Excessive publication [§1480]
Similarly, the defendant’s publication must extend further than necessary to carry
out the purposes for which the privilege is recognized. [Coleman v.
MacLennan, 98 P. 281 (Kan. 1908)]
(a) Effect—defendant placed under “duty of care” [§1481]
For example, the defendant will lose the privilege if he speaks so loudly in a
public place that he is overheard by persons other than those to whom the
defamation is privileged. [Kruse v. Rabe, 79 A. 316 (N.J. 1910)]
330
(b) Distinguish—incidental newspaper publication [§1482]

If the publication is by a newspaper and the defamation is of a local person,
the probability that the newspaper will be sent to persons out of state is not
enough by itself to constitute an excessive publication. [Coleman v.
MacLennan, supra; but see Moyle v. Franz, 293 N.Y. 842 (1944)—
excessive publication by religious magazine with story about an internal
matter where magazine sent to readers who were not interested in matter]
5. Fair Comment Privilege [§1483]

Courts have long protected critics who comment on the efforts of others—whether
writers, entertainers, athletes, restaurants, or politicians. [Cherry v. Des Moines Leader,
86 N.W. 323 (Iowa 1901)] The common law developed two views on this privilege.
a. Majority view [§1484]

Under the majority view, the critic was protected if the comment was on a matter of
public interest, was based on true facts, and expressed an honestly believed opinion.
[Post Publishing Co. v. Hallam, 59 F. 530 (6th Cir. 1893)]
b. Minority view [§1485]

Under the minority view, the privilege existed even if the facts were incorrectly
stated, as long as the critic honestly believed the version of the facts on which the
criticism was based. [Coleman v. MacLennan, supra] This view played an
important role in the constitutional developments discussed infra.
6. Record Libel Privilege [§1486]

Reports of judicial, legislative, or executive proceedings (so-called record libel) are
privileged if fair and accurate; i.e., the reports must be either verbatim accounts or fair
and impartial summaries of what happened. This privilege exists in all states either by
statute or under the common law.
a. Nonofficial proceedings [§1487]

Although the paradigm situation involves a public and official meeting [Rest. 2d
§611], some courts have extended the record libel privilege to reports of
nongovernmental public meetings in which there is a general interest, such as
political or medical conventions [Borg v. Boas, 231 F.2d 788 (9th Cir. 1956)—mass
meeting to urge grand jury investigation].
b. Official but nonpublic document [§1488]

Some courts have extended the privilege beyond meetings to government files or
documents. [Medico v. Time, Inc., 643 F.2d 134 (3d Cir.), cert. denied, 454 U.S.
836 (1981)—summary of FBI file]
c. Reports of foreign governments [§1489]

At least one court has refused to extend the privilege to reports from foreign
governments, because they are not as open or reliable as domestic government
331
sources. [Lee v. The Dong-A Ilbo, 849 F.2d 876 (4th Cir. 1988), cert. denied, 489
U.S. 1067 (1989)]
d. How privilege is lost [§1490]

The record libel privilege is lost only when the defendant’s report of what transpired
is inaccurate; traditionally, false or garbled accounts are not protected. (But note the
impact of recent constitutional developments—some inaccurate reports may now be
privileged; see infra, §§1532 et seq.)
(1) Distinguish—absolute privilege [§1491]
The privilege of record libel differs from absolute privilege in that the absolute
privilege is available even to those who lie, whereas this privilege (at least in its
common law form) is lost upon inaccuracy, far short of lying.
(2) Distinguish—conditional privilege [§1492]
Unlike conditional privileges, which are lost if the publisher does not honestly
believe the substance of his statement, the record libel privilege survives even if
the reporter knows or strongly believes that one of the witnesses or officials who
is being accurately quoted is in fact lying.
(a) Rationale
The explanation for these differences is that the record libel privilege is
intended to permit the public to learn what is happening in government
activities; this requires accuracy of reporting, and the harm to victims from
accurate quotations—even of lying officials or witnesses—is outweighed by
the importance attached to allowing the public to know what government
officials are doing and what is being said in trials and hearings.
7. Federal Preemptive Privileges [§1493]

As discussed in connection with products liability (see supra, §1068), all state laws must
be consistent with federal law under the Supremacy Clause. Preemption principles apply
to defamation as well.
a. Defamations in campaign speech broadcasts [§1494]

Radio and television stations are not liable for broadcast defamations contained in
campaign speeches by candidates for public office. [Farmers Educational &
Cooperative Union v. WDAY, Inc., 360 U.S. 525 (1959)]
(1) Rationale
Section 315 of the Federal Communications Act requires broadcasters to extend
“equal opportunities” for all candidates for public office to use the station’s
facilities. [47 U.S.C. §315] This federal act preempts state laws that would
impede its purposes—and state defamation laws would do so because stations
fearful of being held liable for defamations in such broadcasts might refuse state
and local candidates the right to use their facilities,
332
in order to protect the stations from potential liability. (Note: Stations can no
longer bar federal candidates from such access.)
(2) Absolute immunity [§1495]
The immunity here is absolute; it cannot be defeated by claims that the radio or
television station knew that the statements to be uttered were false.
b. Defamations in labor disputes [§1496]

Likewise, federal labor laws are held to preempt state defamation law insofar as
defamatory statements published during labor disputes are concerned. Federal labor
laws set the limits on “free speech” in labor disputes, and state defamation laws
cannot be applied to narrow these limits. [Old Dominion Branch No. 496,
National Association of Letter Carriers v. Austin, supra, §1420]
c. Petitions to government officials [§1497]

Private letters to government officials arguing against the appointment of the plaintiff
to a government post are protected under the New York Times rule (infra, §1503).
They are not absolutely privileged under the Petitions Clause of the First
Amendment. [McDonald v. Smith, 472 U.S. 479 (1985); but see Imperial v.
Drapeau, 716 A.2d 244 (Md. 1998)—absolute privilege for doctor’s letter sent to
governor and member of Congress complaining about emergency medical
technician’s treatment of patient]
8. Defenses of Republishers [§1498]

A republisher cannot automatically rely on any defense or privilege the original publisher
may have. Each republisher must establish its own privilege.
a. Exception—intermediary [§1499]
However, certain intermediaries are protected by a special privilege: One whose duty
it is to dispatch messages (e.g., a telegraph agent, perhaps a private secretary) is
privileged to transmit a defamation, whether or not he believes it to be true.
Rationale: Persons so employed have no authority or ability to check the accuracy
of that which they are required to transmit. [Rest. 2d §612; and see Mason v.
Western Union Telegraph Co., 52 Cal. App. 3d 429 (1975)]
b. Media reliance on usually reliable source [§1500]

Because newspapers commonly must use information that is gathered by reporters
outside of the publisher’s control, most states have granted newspapers a conditional
privilege to reprint wire service stories and syndicated features.
Example: Publication of allegedly defamatory, but facially consistent, story
received over a wire service from a recognized reliable news source was
privileged. [Layne v. Tribune Co., 146 So. 234 (Fla. 1933)]
Example: A republisher is not negligent if it relies on a wire story from a reliable

source, even if the story describes local events that could be easily
333
verified by the republisher. [Appleby v. Daily Hampshire Gazette, 478 N.E.2d 721
(Mass. 1985)]
c. Media reports of statements made by others [§1501]

Some courts have granted media a constitutional privilege called “neutral reportage”
to permit media to cover a story in which some important persons or groups are
accusing others of improprieties. [Edwards v. National Audubon Society, Inc., 556
F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002 (1977)—First Amendment prevents
newspaper from being held liable for accurately reporting the false, libelous
statements of a “responsible, prominent organization” because such statements are
potentially newsworthy and thus important to readers; but see Hogan v. Herald
Co., 58 N.Y.2d 630 (1982)—rejecting the privilege] The articles in these cases may
be seen as extensions of the fair and accurate report privilege because there is nothing
official or public about the proceedings being reported upon.
9. SLAPP Suits [§1502]
In response to concern that some libel actions are brought to silence critics on public
issues—so-called SLAPP suits (Strategic Lawsuits Against Public Participation)—some
states have adopted legislation to help defendants terminate such cases at an early stage
of the litigation. The legislation provides for striking the pleading unless the court
concludes that there is a “probability” that the plaintiff will prevail. [See, e.g., Cal. Civ.
Proc. Code §425.16; Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th
1106 (1999)—in libel claim by landlord against nonprofit organization that aided tenants,
defendant need not show that statement at issue concerned an issue of public significance
in order to take advantage of statute allowing it to seek early end to case]
H. Constitutional Privileges
The state has a legitimate interest in protecting the reputation of each citizen. But the
threat of a defamation action is inevitably a curb on the freedom of speech and press
guaranteed by the First Amendment of the United States Constitution: “Whatever is
added to the field of libel is taken from the field of free debate.” [New York Times Co.
v. Sullivan, 376 U.S. 254 (1964)] In certain instances, the interest in freedom of
expression is held to outweigh the interest in protecting reputations, and in these cases,
defamations may be privileged as a matter of constitutional law (superseding any state
law to the contrary). We have already discussed some constitutional developments in
such areas as the need for a statement capable of being proven false (see supra, §1416)
and the burden of proving falsity (see supra, §1414). We turn now to the major
constitutional development—the rejection of the common law rule of strict liability.
334
335
a. Status of plaintiff controls constitutional standard [§1504]

The crucial step in determining the constitutional protection available in defamation
cases depends on the status of the plaintiff. [Gertz v. Robert Welch, Inc., supra,
§1446; New York Times Co. v. Sullivan, supra]
(1) Types of plaintiffs [§1505]
For this constitutional analysis each plaintiff must be put into one of three
categories: (i) public official, (ii) public figure, or (iii) private person.
(2) Caveat—status of defendant [§1506]
A few plurality Supreme Court opinions have suggested that the constitutional
standards may also depend on the identity and status of the defendant speaker.
[Philadelphia Newspapers, Inc. v. Hepps, supra, §1414] But this view has
never commanded a majority in the Supreme Court and has been rejected by
virtually all state courts and lower federal courts.
2. Public Plaintiffs [§1507]

The Supreme Court has granted its highest level of protection for statements concerning
“public officials” or “public figures.” Although the standard of protection for each group
is identical, it is useful to keep the two groups distinct because of the way in which
persons are placed into one or the other of these two categories.
a. “Public officials” [§1508]

Those persons within the hierarchy of government who have (or appear to have)
substantial responsibility over government affairs have the status of public plaintiffs
in defamation actions. [Rosenblatt v. Baer, 383 U.S. 75 (1966)]
(1) Rationale
It is important that members of the public be able to speak freely about—and
criticize—the behavior of its public officials without running the risk of being
held liable for every false defamatory statement. [New York Times Co. v.
Sullivan, supra]
(2) “Public official” not yet defined [§1509]
The Supreme Court has not yet defined the term “public official.” But it has said
that the term does not encompass all public employees. [Hutchinson v.
Proxmire, 443 U.S. 111 n.8 (1979); and see Kassel v. Gannett Co., 875 F.2d
935 (1st Cir. 1989)]
336
(3) Police [§1510]

Because police officers are highly visible to the public and have considerable
authority to act with force, virtually all courts have held even low ranking
officers to be public officials. [See, e.g., Gray v. Udevitz, 656 F.2d 588 (10th
Cir. 1981); Reed v. Northwestern Publishing Co., 530 N.E.2d 474 (Ill. 1988),
cert. denied, 489 U.S. 1067 (1989)]
(4) Distinguish—principals and teachers [§1511]
Courts are split over whether principals and teachers are public officials.
[Compare Palmer v. Bennington School District, 615 A.2d 498 (Vt. 1992)—
principals are public, with Ellerbee v. Mills, 422 S.E.2d 539 (Ga. 1992), cert.
denied, 507 U.S. 1025 (1993)—contra; compare Richmond Newspapers, Inc.
v. Lipscomb, 362 S.E.2d 32 (Va. 1987), cert. denied, 486 U.S. 1023 (1988)—
teachers are public, with Kelley v. Bonney, 606 A.2d 693 (Conn. 1992)—
contra]
b. “Public figures” [§1512]

A person (“P”) who is not a “public official” nonetheless may be deemed a “public
figure” on one of two grounds: (i) P has achieved such pervasive fame or notoriety
that P becomes a public figure for all purposes and contexts (e.g., celebrity sports
figure); or (ii) more commonly, P voluntarily enters or is drawn into a particular
public controversy, and thereby becomes a “public figure” for that limited range of
issues. [Gertz v. Robert Welch, Inc., supra, §1504]
(1) Rationale
Although persons who are not in government do not have as direct a control
over the lives and destinies of the public, there is much private power in this
country that does exert great influence and that is not as easily scrutinized or
removable by the electoral process. It is important that the public be able to
comment freely on these persons as well. [Curtis Publishing Co. v. Butts, 388
U.S. 130 (1967)—opinion of Warren, C.J.]
(2) General public figures [§1513]
Plaintiffs who have been found to be general public figures include a famous
journalist and political advocate [Buckley v. Littell, supra, §1421], and a well-
known entertainer [Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976);
and see Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir.),
cert. denied, 449 U.S. 898 (1980)—a general public figure is a “well-known
‘celebrity,’ his name a ‘household word.’ The public recognizes him and follows
his words and deeds ….”].
(3) Limited purpose public figures [§1514]
Lower courts have tended to use three steps in identifying “limited purpose”
public figures: (i) the court isolates the public controversy involved in the
particular case; (ii) the court decides if the plaintiff has voluntarily assumed a
central role in that controversy; and (iii) the court must find the
337
alleged defamation germane to the plaintiff’s participation in the controversy.

[Foretich v. Capital Cities/ABC, Inc., supra, §1472—couple did not become
public figures by responding publicly and often to assertions that they had
abused their granddaughter; Waldbaum v. Fairchild Publications, Inc., supra
—outspoken chief executive officer of corporation was limited purpose public
figure for media report on reasons for his dismissal]
(a) Application [§1515]
The Supreme Court has made it clear that not every person who seeks
government aid or who draws attention by some voluntary behavior
becomes a “public” plaintiff for libel purposes.
Example: A socially prominent woman does not become a “public
figure” by seeking a divorce or by meeting with the press during the
divorce trial. [Time, Inc. v. Firestone, 424 U.S. 448 (1976)]
Example: A scientist applying for a federal grant does not become a

“public figure” by applying for the grant. [Hutchinson v. Proxmire,
supra, §1509]
Example: A witness who refuses to testify before a grand jury does not
thereby become a “public figure.” [Wolston v. Reader’s Digest
Association, 443 U.S. 157 (1979)]
Example: State senator’s wife who was a successful businessperson,

who endorsed her husband’s campaign and aided in it, and who
participated in controversial minority business program was a public figure.
[Krueger v. Austad, 545 N.W.2d 205 (S.D. 1996)]
(b) Involuntary public figures [§1516]
In Gertz, the Court indicated that it might be possible for people to become
public figures through no purposeful action of their own, but thought such
instances “exceedingly rare.”
Example: An air traffic controller who happened to be on duty during a
newsworthy airplane crash may be a public figure. [Dameron v.
Washington Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985), cert. denied,
476 U.S. 1141 (1986)]
c. Constitutional standard in cases involving public plaintiffs [§1517]
Plaintiffs who are either public officials or public figures for defamation purposes
must prove that the false defamatory statement was published with what the
Supreme Court has called “actual malice”—i.e., knowledge of the falsity
338
of the defamatory statement or reckless disregard for its truth. [New York Times
Co. v. Sullivan, supra, §1508]
(1) Rationale
The public interest in good faith debate regarding public persons outweighs the
interest in protecting their reputations. But no public interest is served by a
publication made with “knowing or reckless falsity,” and hence there is no
constitutional protection in such case. [Garrison v. Louisiana, supra, §1413]
(2) What constitutes “knowing or reckless falsity” [§1518]
The plaintiff must show that the defendant was subjectively aware that the
statement was false or was subjectively reckless as to its truth when making the
statement. [New York Times Co. v. Sullivan, supra]
(a) Motive to harm insufficient [§1519]
It is not enough that the defendant be shown to have acted with spite,
hatred, ill will, or intent to injure the plaintiff. Unless “knowing or reckless
falsity” is established, there is not the requisite “malice” for constitutional
purposes. [Rosenblatt v. Baer, supra, §1508]
Example: Newspaper reporter’s statements that he wanted to “get” the
plaintiff were insufficient to establish actual malice. [Margoles v.
Hubbart, 760 P.2d 324 (Wash. 1988)]
(b) Negligence insufficient [§1520]

“Reckless” conduct is not measured by a reasonable person standard or by
whether a reasonable person would have investigated before publishing; i.e.,
negligence is not enough. Rather, there must be a showing that the
defendant in fact (subjectively) entertained serious doubts as to the
truthfulness of the publication. [St. Amant v. Thompson, 390 U.S. 727
(1968)]
Example: If a scandal magazine completely fabricates a story about a
celebrity, it necessarily entertained at least serious doubt as to the truth
of the statements. [Carson v. Allied News Co., supra, §1513]
339
1) Freelance authors [§1521]

The rule of respondeat superior does not apply in the case of authors
who are not employees but rather are hired for single assignments or
who submit proposed pieces. In such cases, the plaintiff must prove that
the defendant publisher either knew that the freelancer was a deliberate
liar or disbelieved the contents of the completed piece but published it
anyway. [Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir. 1982),
cert. denied, 459 U.S. 1226 (1983)]
(3) Proving “knowing or reckless falsity” [§1522]
Because the standard of liability is subjective, it is difficult to meet.
(a) Burden of proof [§1523]
In this type of case, the plaintiff must prove “actual malice” with convincing
clarity; i.e., a mere preponderance is insufficient. [New York Times Co. v.
Sullivan, supra]
Example: Where the only evidence in support of a jury verdict for the
plaintiff involves conflicting accounts of key conversations, a court may
conclude that actual malice was not demonstrated with convincing clarity.
[Long v. Arcell, 618 F.2d 1145 (5th Cir. 1980), cert. denied, 449 U.S.
1083 (1981)]
1) Note
Under the Federal Rules of Civil Procedure, federal courts, when
considering motions for summary judgment in libel cases, must hold the
plaintiff to the standard of convincing clarity if that is the standard the
plaintiff must meet at trial. [Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986)]
2) And note
Although the Supreme Court has required the plaintiff to prove falsity
[Philadelphia Newspapers, Inc. v. Hepps, supra, §1506], whether the
plaintiff must prove falsity with convincing clarity is an open question
[Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657
(1989)].
(b) Application
1) Extremely questionable source [§1524]
A defendant may be found to have acted with actual malice where its
source’s credibility is seriously questioned by many other witnesses,
where the defendant did not listen to taped conversations provided by
the plaintiff to disprove the defendant’s projected
340
story, where the defendant declined to interview a particular witness who

could have verified the story, and where an earlier article by the
defendant showed that it had already committed itself to attacking the
plaintiff. [Harte-Hanks Communications, Inc. v. Connaughton,
supra]
2) Failure to investigate [§1525]
But failure to investigate alone does not amount to actual malice.
[Sweeney v. Prisoners’ Legal Services of New York, Inc., 84 N.Y.2d
786 (1995)]
3) Publishing while knowing facts are incomplete [§1526]
A newspaper that publishes an Associated Press wire service story, even
though the Associated Press announced that more would soon follow,
did not publish with actual malice because there was no showing that the
staff did not believe the first story. [Meisler v. Gannett Co., 12 F.3d
1026 (11th Cir. 1994)]
4) Noting questionable veracity [§1527]
Where a defendant newspaper carried an article defaming the plaintiff
based on a source that the article noted had been called a liar by others,
and the plaintiff sued for defamation, the article’s attack on its own
source was held to be a negation of actual malice rather than a showing
of it. [McFarlane v. Esquire Magazine, 74 F.3d 1296 (D.C. Cir. 1996)]
(c) Discovery [§1528]
To prove the defendant’s state of mind, the plaintiff may ask the defendant
about it—even if the defendant is a reporter or editor. The First Amendment
does not protect a journalist from discovery inquiries about his motives for
reporting, belief in the accuracy of sources, the reason for pursuing some
leads but not others, or the content of conversations among reporters and
editors during the story’s preparation. [Herbert v. Lando, 441 U.S. 153
(1979)]
(4) Independent appellate review [§1529]
Appellate courts, in determining whether the plaintiff has demonstrated
convincing clarity, must undertake an independent review of the record, giving
limited deference to trial court or jury findings. [Bose Corp. v. Consumers
Union, 466 U.S. 485 (1984)] The Supreme Court has not yet decided whether
independent appellate review must be applied to the jury’s finding of falsity.
d. Damages [§1530]
Statements made with “knowing or reckless falsity” have no constitutional protection
against defamation actions. So when a public person establishes the New York Times
standard of liability against a media defendant, she may recover
341
whatever damages are permitted under state law (see supra, §§1429 et seq.), subject
as always to constitutional limitations on such items as punitive damages (see supra,
§§23, 1446).
3. Private Plaintiffs [§1531]

A plaintiff who is neither a public official nor a public figure is, for libel purposes, a
private person. A lower constitutional standard applies in such cases because private
persons are more vulnerable to injury from defamation because they lack the same
opportunities for rebuttal as do public persons; and, unlike public persons, they did not
voluntarily assume the risk of adverse comments. [Gertz v. Robert Welch, Inc., supra,
§1512]
a. Constitutional limitation [§1532]

However, to protect the freedom of speech and press guaranteed by the First
Amendment, liability without fault cannot be imposed, at least where a matter of
public concern is involved. Where the statement published is such that substantial
danger to the person’s reputation would be apparent to a reasonably prudent editor
or broadcaster, the plaintiff must prove that the publisher or broadcaster either knew
that the defamatory words were false, was reckless as to truth, or was negligent as
to their falsity. [Gertz v. Robert Welch, Inc., supra]
(1) Limited damages [§1533]
Under the Gertz approach, a plaintiff who proves no more than falsity due to
negligence may recover only “actual injury” damages (see infra, §1542).
(2) Caveat—matters of private concern [§1534]
Defamation actions brought by a private plaintiff may not be subject to
constitutional limitations unless a matter of public concern is involved. If the
defamation involves a matter of purely private concern, a private plaintiff may
recover presumed and punitive damages without proving actual malice (see
supra, §§1443-1448). [Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
supra, §1447]
b. Applicable standard of liability [§1535]

In Gertz, the Supreme Court left it to the states to determine their own respective
standards for liability to private individuals (in public concern cases), as long as they
do not apply strict liability.
(1) Majority view—negligence [§1536]
Almost all states have accepted the Gertz invitation and have set the standard for
liability at the level of negligence. [Brown v. Kelly Broadcasting Co., supra,
§1474]
(2) Minority view—deliberate or reckless falsity [§1537]
A few states have decided to adhere to the New York Times requirement
342
(knowledge of falsity or reckless disregard for truth) in cases involving private

plaintiffs in stories of general or public interest. [Sisler v. Gannett Co., 516
A.2d 1083 (N.J. 1986)]
(3) New York view—grossly irresponsible manner [§1538]
New York has decided that when a story’s content is “arguably within the sphere
of legitimate public concern,” a private plaintiff must prove that the publisher
acted in a “grossly irresponsible manner without due consideration for the
standards of information gathering and dissemination ordinarily followed by
responsible parties.” [Gaeta v. New York News, Inc., 62 N.Y.2d 340 (1984)]
c. Burden of proving falsity [§1539]

A private plaintiff has the burden of proving falsity, at least where the speech is of
public concern. The common law presumption of falsity has the potential to chill true
speech on matters of public concern. [Philadelphia Newspapers, Inc. v. Hepps,
supra, §1506]
d. Damages [§1540]
The First Amendment protects defendants in suits by private persons, if a matter of
public concern is involved, by limiting the kinds of damages recoverable according to
the degree of fault established by the plaintiff.
(1) If defendant’s falsity due to negligence, but not deliberate or reckless
[§1541]
Assuming the defendant was in fact negligent in ascertaining or reporting the
truth of what it published—but had neither actual knowledge of the falsity nor
reckless disregard for the truth—a private person can recover damages limited
to the “actual injury” sustained. [Gertz v. Robert Welch, Inc., supra, §1532]
(a) Rationale
Allowing recovery for damages not based on “actual injury” would not
further an important state interest and would invite juries to punish
unpopular defendants, which may in turn cause undue self-censorship and
restrictions on free debate. [Gertz v. Robert Welch, Inc., supra]
(b) “Actual injury” [§1542]
The Supreme Court has not defined what constitutes “actual injury,” but has
stated that it is not limited to out-of-pocket losses. It may include
impairment of reputation and standing in the community, personal
humiliation, and mental anguish and suffering. The important point is that
there must be competent evidence of “actual” injury (no presumed
damages), although there need not be evidence that assigns an actual dollar
value to the injury. [Time, Inc. v. Firestone, supra, §1515]
343
(2) If defamation deliberate or reckless [§1543]

It follows that a private plaintiff who cannot prove “actual injury” by the
publication cannot recover any damages—unless she can show that the
publication was made with knowledge of its falsity or with reckless disregard for
the truth. In such a case, the plaintiff is entitled to whatever recovery is
permitted under state law in such cases (i.e., “presumed” and perhaps punitive
damages). [Gertz v. Robert Welch, Inc., supra]
(a) Note
A private plaintiff who wishes to obtain presumed or punitive damages in a
case involving a matter of public concern must meet all of the requirements
set by the New York Times rule for public plaintiffs, including proof with
convincing clarity and independent appellate review (supra, §§1523-1529).
344
Chapter Nine:
Wrongful Invasion of Privacy
CONTENTS
Key Exam Issues

A. Intrusions into Plaintiff’s Private Life or Affairs §1544
B. Public Disclosure of Private Facts §1562
C. Appropriation of Plaintiff’s Name or Likeness §1590
D. Publicity Placing Plaintiff in a “False Light” §1602
E. Claims Involving Privacy of Third Persons §1612
F. Important—Related Torts §1619
345
Key Exam Issues
Recognition of the right of privacy in tort law and in other areas of law has come fairly
recently. As a result, the tort actions do not have the historical baggage and complexity that
we saw in defamation cases. This means that the prima facie cases and defenses are shorter
and more coherent. On the other hand, because privacy is frequently invaded by words,
First Amendment defenses are often raised in privacy torts, just as in defamation.
The four separate categories of invasion of privacy that you have to consider are:
1. An intrusion into plaintiff’s private life, usually done by the defendant secretly trying
to learn something about the plaintiff;
2. A public disclosure of private facts about the plaintiff (this is perhaps the most famous
privacy tort, derived from the famous Brandeis and Warren article, The Right to Privacy,
4 Harv. L. Rev. 193 (1890));
3. The use by defendant of the plaintiff’s name or picture for commercial purposes; and
4. A publication placing the plaintiff in a “false light” (basically a weaker form of
defamation).
Each type of “invasion” is sufficiently different that it is dangerous to lump them together. It
is better to think of them as four separate torts, learning the prima facie case of each as you
would for any other tort. But note that, occasionally, two or more may be involved in the
same case.
Also, although this area of law is generally developing by common law, a few states, led by
New York, have a limited statutory right, especially on the “public disclosure” tort, which
would foreclose a common law action on this tort.
A. Intrusions into Plaintiff’s Private Life or Affairs

To recover for this type of invasion of privacy, the plaintiff must prove:
346
• Highly Offensive Intrusion by Defendant into Plaintiff’s Private Life

• Intent or Negligence
• Causation
2. Protected Area of Seclusion [§1545]

The law protects those areas of the plaintiff’s life that the plaintiff can reasonably expect
will not be intruded upon by one in the defendant’s position. [Pearson v. Dodd, 410
F.2d 701 (D.C. Cir. 1969)]
Example: Wiretapping P’s home would be a clear invasion of privacy. [Hamberger
v. Eastman, 206 A.2d 239 (N.H. 1964)] But if P had sought a disability pension or
filed a personal injury complaint, an investigator’s efforts to photograph P in public
would not intrude on reasonable expectations of privacy. [Forster v. Manchester, 189
A.2d 147 (Pa. 1963); Jeffers v. City of Seattle, 597 P.2d 899 (Wash. 1979)]
a. Distinguish—relationship between parties [§1546]

The relationship between the parties may convince some courts to deny recovery in
what would otherwise give rise to an actionable invasion.
Example: Even though urine testing clearly intrudes upon legitimate expectations
of privacy, where that testing is ordered by an employer to find employment-
related information—i.e., whether employees are reporting to work with drugs in
their system—it does not invade employees’ privacy. [Baggs v. Eagle-Picher
Industries, Inc., 957 F.2d 268 (6th Cir. 1992)]
Example: A husband’s surveillance of his former wife and her lesbian partner in
the course of a custody battle was not actionable by the partner because of a
legitimate concern for the child’s welfare. [Plaxico v. Michael, 735 So. 2d 1036
(Miss. 1999)]
b. Distinguish—no right of privacy for corporations [§1547]
Courts have uniformly denied a right to privacy for corporations, holding that they do
not have traits of a highly personal and sensitive nature. [Warner-Lambert Co. v.
Execuquest Corp., 691 N.E.2d 545 (Mass. 1998)] This extends also to public
disclosure of private facts, infra.
3. Types of Intrusion [§1548]

Any behavior that intrudes on the plaintiff’s solitude may be actionable.
a. Intrusion onto plaintiff’s property [§1549]

Invasions of privacy can occur when the defendant enters the plaintiff’s property
uninvited. Such intrusions can be tortious whether the defendant enters to obtain
information (e.g., an insurance investigator) or to convey information to the plaintiff.
347
(1) Trespass [§1550]

Invasions of privacy that involve entry onto the plaintiff’s property are also likely
to be actionable trespasses. But note: Some trespasses may not amount to
invasions of privacy. [See, e.g., McLain v. Boise Cascade Corp., 533 P.2d 343
(Or. 1975)—trespass on periphery of P’s land did not show unreasonable
surveillance]
b. Nonphysical intrusions [§1551]

Nonproprietary impingements on the plaintiff’s seclusion may also be tortious.
[Nader v. General Motors Corp., 25 N.Y.2d 560 (1970)]
Example: Owner of tanning salon secretly photographed a patron while she was
undressing and nude in tanning room. [Sabrina W. v. Willman, 540 N.W.2d
364 (Neb. 1995)]
Example: From a hill some distance away, D used a high-powered telescope to

look into P’s upstairs bedroom, which could not otherwise be observed.
Example: Although P takes a risk that D will repeat P’s statements,

unauthorized recordings or films of the conversation intrude on P’s right to
control the range of his voice. [Ribas v. Clark, 38 Cal. 3d 355 (1985)]
Example: D impedes P’s movements on public streets. [Galella v. Onassis, 487

F.2d 986 (2d Cir. 1973)]
Example: Taping conversations between a victim and emergency personnel at

the site of a car wreck may be found actionable even if it occurred on public
property, unless it can be shown that nearby bystanders also heard the conversations.
[Shulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998)]
4. Intrusion Must Be Highly Offensive [§1552]

For an intrusion into a plaintiff’s solitude to be actionable, it must be highly offensive to
a reasonable person. [Rest. 2d §652B]
Example: Hotel guests did not have to prove that someone actually watched them
through the hole in their bathroom mirror; mere possibility of intrusion into privacy
was sufficient. [Carter v. Innisfree Hotel, Inc., 661 So. 2d 1174 (Ala. 1995)]
Compare: P failed to state a claim for intrusion where D learned his information
about P through voluntary first-hand interviews with P and others in the community,
and P did not allege that D entered his home, searched through private papers,
wiretapped his telephone, or eavesdropped on his conversations. [Johnston v. Fuller,
706 So. 2d 700 (Ala. 1997)]
348
5. Intent [§1553]
To satisfy the intent element, the plaintiff need only show that the defendant intended
the intrusion into the plaintiff’s affairs; the plaintiff need not show that the defendant
intended to offend the plaintiff. [Rest. 2d §652B]
a. Liability for acts of third parties [§1554]

One court has held that a defendant who negligently permits a third party to intrude
into the plaintiff’s affairs is liable for that intrusion. [LeCrone v. Ohio Bell
Telephone Co., 201 N.E.2d 533 (Ohio 1963)—phone company gave husband phone
number of estranged wife]
b. Respondeat superior [§1555]

A defendant whose employees were acting within the scope of their employment is
liable in tort even though the employees’ purpose had no relation to their duties. [Doe
v. B.P.S. Guard Services, Inc., 945 F.2d 1422 (8th Cir. 1991)—department store
security guards videotaping models while they changed clothes during fashion show]
c. Note
The developing law of negligent infliction of emotional distress (see supra, §§762 et
seq.) may apply here by analogy.
6. No Publication Necessary [§1556]

If the invasion of privacy consists of intrusion or eavesdropping (e.g., by tapping phone
wires), no publication is necessary because the interest protected here is the plaintiff’s
“right to be let alone” rather than his interest in not having the information disseminated.
[Rhodes v. Graham, 37 S.W.2d 46 (Ky. 1931)]
7. Causation [§1557]
The defendant’s conduct must have been the cause in fact and the proximate cause of
the invasion of the plaintiff’s interest in privacy and the ensuing damage.
8. Defense—Consent [§1558]
As with other torts, if the intrusion is authorized or permitted, there is no cause of action.
Example: There is no invasion of privacy where P gives a process server implied
consent to enter her residence by backing up her wheelchair as the process server
walks through the door. [Harris v. Carbonneau, 685 A.2d 296 (Vt. 1996)]
a. Conduct must not exceed scope of consent [§1559]

Consent is no defense, however, if the intrusions fall outside the plaintiff’s actual or
implied consent. [See, e.g., McDaniel v. Atlanta Coca-Cola Bottling Co., 2
S.E.2d 810 (Ga. 1939)—consent to investigators to investigate P’s damages claim
349
did not authorize investigators to install secret monitoring device in P’s hospital room]
(1) Note
The issues involving consent in trespass cases (see supra, §237) are also
involved in intrusion cases. [Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir.
1971)—consent to enter given to reporter posing as patient did not extend to
making secret recordings or photographs]
9. Damages [§1560]
Pure emotional distress and mental anguish are sufficient damages; thus, the plaintiff
need not prove any special damages or pecuniary loss.
10. Constitutional Protection [§1561]

While state law may proscribe intrusion into the privacy of others, it may not impose
liability on a third party who uses the fruits of that intrusion and publishes true statements
that are of public interest. [Bartnicki v. Vopper, 532 U.S. 514 (2001)—radio
commentator who discussed taped conversations obtained by another through illegal
interception of cell phone conversations could not be held liable under state or federal
statutes prohibiting such interceptions]
B. Public Disclosure of Private Facts

This action involves:
• Highly Offensive Public Disclosure by Defendant of Private Facts about Plaintiff
• No Legitimate Public Interest
• Fault in Making the Disclosure
• Causation
Examples: Motion picture discloses P’s present identity and sordid details of her
past life [Melvin v. Reid, 112 Cal. App. 285 (1931)]; P’s doctor releases photos he
has taken of P’s anatomy or embarrassing information obtained in the course of
treatment [Horne v. Patton, 287 So. 2d 824 (Ala. 1973)]. [But see Anderson v. Fisher
Broadcasting Cos., 712 P.2d 803 (Or. 1986)—requiring some additional element, such
as violating a duty of confidentiality, or wrongful acquisition of the information]
2. What Are “Private Facts”? [§1563]

The disclosed facts must involve the plaintiff’s private life, i.e., those aspects of her life
that have not already received some publicity and that are not left open to public
observation or inspection.
350
Examples: Publication of the names and photographs of mentally retarded children

is a disclosure of private information where the parents have kept private the mental
capacities of their children. [Deaton v. Delta Democrat Publishing Co., 326 So. 2d
471 (Miss. 1976)] So are the fact that P has a rare disease [Barber v. Time, Inc., 159
S.W.2d 291 (Mo. 1942)], and that P was involuntarily sterilized [Howard v. Des Moines
Register & Tribune Co., 283 N.W.2d 289 (Iowa 1979)].
a. Matters of public record [§1564]

Facts that appear as a matter of public record do not fall in this category (see infra,
§§1584-1586).
Example: P cannot complain about a publication of her age if this appears in
birth records, or about publication of a dishonorable discharge if this appears in
public records of P’s military service. [Stryker v. Republic Pictures, 108 Cal. App.
2d 191 (1951)]
b. Public occurrences [§1565]

Facts that occur in public (e.g., photos of the plaintiff taken in a public park or in a
restaurant) are also outside this category. Rationale: Because anyone present would
have observed the same thing, such facts are hardly “private.”
Example: Marching in a public gay parade will make it much more difficult to
argue that P’s homosexuality is a private fact. [Sipple v. Chronicle Publishing
Co., 154 Cal. App. 3d 1040 (1984)]
Compare: On the other hand, P’s telling a group of friends and family that P has
AIDS, with the understanding that it would be kept confidential, does not mean
that the fact is no longer private. [Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d
491 (Ga. 1994)]
c. Voluntary public figures [§1566]

Persons who voluntarily come before the public eye, such as an actor or politician,
have no right of privacy concerning reports of their public activities and appearances
because these have not been kept private.
Example: A town’s public disclosure that its former bookkeeper had left the
town’s books in disarray did not reveal any protectable private matters,
notwithstanding the claim that the town had agreed to keep such matters private in
exchange for the bookkeeper’s resignation. [Loe v. Town of Thomaston, 600 A.2d
1090 (Me. 1991)]
(1) Distinguish—involuntary public figure [§1567]
Those involuntarily before the public eye, such as those accused of crimes or
involved in catastrophes, have not opened any of their lives to the public.
351
If the facts disclosed did not occur before the public eye, reports may be
considered to be of private matters. As discussed below, however, those
disclosures are nonetheless privileged if they are newsworthy.
Example: While P is on trial for tax evasion for one year, D obtains I.R.S.
records and publicizes the fact that P has paid no taxes in 10 years. Because
the I.R.S. records are not public, the report discloses private facts—but it may
nonetheless be privileged (see infra, §§1584-1586). Reports related to the trial
are public facts even though P is involuntarily in the public eye.
3. Publication Must Be Highly Offensive [§1568]

Not every disclosure of the plaintiff’s private affairs is actionable. Everyone must expect
some observation by others of their comings and goings. So to prevail, the plaintiff must
establish that the disclosure was such as would be highly offensive to a reasonable
person. [Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir. 1940)]
Example: A newspaper report that P is suffering from an embarrassing disease, had
sex-change surgery, or is having an extramarital affair may well be highly offensive.
[Diaz v. Oakland Tribune, Inc., 139 Cal. App. 3d 118 (1983)—sex-change surgery]
Compare: Newspaper reports that P did the laundry yesterday or held a private
party in her home are not highly offensive. [Rest. 2d §652D cmt. c]
Compare: There is no actionable invasion where a magazine publisher, credit card

issuer, etc., sells mailing lists of its subscribers to others. [Shibley v. Time, Inc.,
321 N.E.2d 791 (Ohio 1974)]
4. Must Be a “Public” Disclosure [§1569]

The element of a “public” disclosure requires more than publication in the defamation
sense. The disclosure must involve publicity—communication either to the public at
large or to enough individuals that it is likely to reach the general public.
Example: A single letter from a collection agency to P’s employer disclosing that P
has not paid her bills and requesting assistance in collection of P’s debt is not an
invasion of privacy. [Timperley v. Chase Collection Service, 272 Cal. App. 2d 697
(1969)] But disclosing that fact in a newspaper ad, or in a notice posted in a public place,
is sufficient publicity to be actionable. [Brents v. Morgan, 299 S.W. 967 (Ky. 1927)]
Compare: Even without publicity, repeated letters or other unreasonable collection

efforts may be actionable as intentional infliction of emotional distress (see supra,
§§79 et seq.) or as an intrusion into private affairs (see supra, §§1544 et seq.).
352
Example: A lender’s disclosure of a borrower’s financial information to a third party

is insufficient publicity to support an invasion of privacy claim. [Swinton Creek
Nursery v. Edisto Farm Credit, 514 S.E.2d 126 (S.C. 1999)]
Example: Improper disclosure of P’s school transcript to a state commission is not a

public disclosure. [Porten v. University of San Francisco, 64 Cal. App. 3d 825
(1976)] But note: A few courts hold that a letter to a big government agency may be a
“public” disclosure. [See, e.g., Beaumont v. Brown, 257 N.W.2d 522 (Mich. 1977)]
5. No Public Interest (“Newsworthiness”) [§1570]

If the defendant publicizes private facts about the plaintiff that are highly offensive, the
plaintiff must show that the facts are not “newsworthy.” [Diaz v. Oakland Tribune,
Inc., supra]
a. What is “newsworthy” [§1571]

Courts have generally given the term “newsworthy” a broad interpretation, holding it
applicable to any matter as to which there is a “legitimate public interest.”
Example: The publication of P doctor’s name and the report of her psychiatric
and marital problems were newsworthy because they arguably related to the
important public problem of medical malpractice. Additionally, the information added
credibility to the story. [Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir.
1981)]
Example: P had foiled an assassination attempt on President Ford. D, in

reporting about P, stated that P was a homosexual. The court found the item was
newsworthy because it attempted to dispel the myth that gays were “timid and weak”
and to raise the issue of whether the President’s belated thanks displayed any
discriminatory attitudes toward homosexuals. [Sipple v. Chronicle Publishing Co.,
supra, §1565]
Example: Identifying the owner of a puppy as a runaway was in the public

interest, given the publicity surrounding the puppy’s brutal beating at the hands
of a third party and the threats later made to the owner. [J.C. v. WALA-TV, Inc.,
675 So. 2d 360 (Ala. 1996)]
Example: Newspaper’s reporting that P was the victim of a sexual assault while
incarcerated was a matter of legitimate public interest. [Doe v. Berkeley
Publishers, 496 S.E.2d 636 (S.C. 1998)]
Example: Disclosure to two co-workers that P has HIV does not satisfy the
requirement of dissemination to the general public. [Doe v. Methodist Hospital,
690 N.E.2d 681 (Ind. 1997)]
353
(1) Note
If the published material involves a matter of legitimate public interest, the
defendant will not be held liable, even if the material is in bad taste. [Neff v.
Time, Inc., 406 F. Supp. 858 (W.D. Pa. 1976)—photo of football fan posing
with trousers unzipped]
b. Application to voluntary public figures [§1572]

Public interest in voluntary public figures often extends beyond their public
appearances and activities. Disclosures of private facts concerning voluntary public
figures are privileged if newsworthy.
Examples: D’s disclosure that a member of Congress has taken bribes or has
committed adultery is newsworthy. Similarly, if D reports that P, a famous
singer, is losing her voice because of excessive drinking, that is newsworthy.
(1) Limitation—matters not in legitimate public interest [§1573]
Some aspects of a public figure’s life may be so private or separate from her
public life as to be beyond legitimate public interest. Publications of such private
matters are not privileged.
Example: If a newspaper invites readers to reveal their “unique love
relationships” and then reports an entry from P’s ex-husband that identifies
P by first name as having had several abortions, as being unable to have
children, and as having engaged in spouse swapping, a jury could find that this
information was not of legitimate public interest. [Winstead v. Sweeney, 517
N.W.2d 874 (Mich. 1994)]
Compare: A book revealing that P had once been a heavy-drinking ne’er-

do-well who neglected his children and could not keep a job, was unfaithful,
and left his wife for another woman was not actionable as a matter of law
because the book was focused on the story of the woman P had left and was
about the difficulties of urban migration. [Haynes v. Alfred A. Knopf, Inc., 8
F.3d 1222 (7th Cir. 1993)]
(a) Note
The distinction between disclosure of matters of legitimate public interest
and impermissible prying into private lives may depend on community
attitudes and is often a jury question. [Virgil v. Time, Inc., 527 F.2d 1122
(9th Cir. 1975), cert. denied, 425 U.S. 998 (1976); Hawkins v.
Multimedia, Inc., 344 S.E.2d 145 (S.C.), cert. denied, 479 U.S. 1012
(1986)—jury could find liability for story about teenage pregnancies that
named P as a teenage father]
354
c. Involuntary public figures [§1574]

Just as with voluntary public figures, publishers may disclose private facts concerning
involuntary public figures when they are newsworthy, even though they go beyond
the events that brought the plaintiff into the public eye.
Example: Reports of P’s past life and associations are privileged if P is on trial
for murder. It does not matter if P is later acquitted.
(1) Limitation—matters not in legitimate public interest [§1575]
Again, some aspects of P’s life may be so private as to be beyond legitimate
public interest. Although protection does not depend on whether P is voluntarily
or involuntarily public, courts may take that fact into consideration.
d. “Current” public interest [§1576]
The passage of time does not necessarily preclude a publication from being in the
legitimate public interest. Thus, the life of one formerly in the public eye may be
treated as “public property” and may be republished, although that individual is no
longer in the public eye (e.g., life history of former child prodigy; events from life of
former prizefighter now retired; crimes committed in the past).
(1) But note
The passage of time is likely to indicate a lack of newsworthiness more quickly
in the cases of involuntary public figures than of voluntary ones.
6. Fault [§1577]
Fault is an essential element of this tort because of its serious constitutional aspect. But
the “fault” cannot be the same as in defamation (supra, §§1409 et seq.) because that was
concerned with fault related to falsity and here the story is true. The fault element here
instead is related to the action that gave rise to the highly offensive disclosure.
Example: A newspaper that runs a story about P’s prior abortions, adultery, and
sterility, where P is an ordinary private citizen, may be found to have known that its
revelations would be highly offensive and lack legitimate public interest. [Winstead v.
Sweeney, supra]
Example: A partner of a law firm who tells others in the office that an associate is a
homosexual may be found to have acted with reckless disregard of the private nature
of the facts disclosed. [Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo. 1997)]
a. Note
Although most revelations are intentional and are likely to be clear abuses of
355
editorial discretion, a few actions may be based on negligence. [See, e.g.,

Multimedia WMAZ, Inc. v. Kubach, supra, §1565—although D television station
agreed to P’s demand that his features be disguised by digitalization, a technician
negligently failed to do so for seven seconds and P was identifiable]
As with intrusions, causation is an essential element of the public disclosure claim. (See
supra, §1557.)
8. Defenses
a. Truth is no defense [§1579]

Because the gist of the tort is embarrassment about public awareness of private facts,
truth is irrelevant. [Briscoe v. Reader’s Digest Association, 4 Cal. 3d 529 (1971)]
b. Consent [§1580]
As with intrusions, consent is a complete defense for public disclosures.
(1) Information disclosed by plaintiff to defendant [§1581]
Normally, the fact that the plaintiff has voluntarily divulged facts about herself to
the defendant bars any later claim against the defendant for repeating this
information to others—even if the defendant promised to keep it “in the strictest
confidence.” A person’s failure to keep things secret is not yet deemed a tort.
[Wynne v. Orcutt Union School District, 17 Cal. App. 3d 1108 (1971); but
see Robert C. Ozer, P.C. v. Borquez, supra]
(a) Distinguish—breach of duty [§1582]
On the other hand, if the defendant was under a legal duty not to disclose
the information without the plaintiff’s consent (e.g., doctorpatient, attorney-
client, etc.), the defendant’s doing so may be actionable as an invasion of
privacy. [Horne v. Patton, supra, §1562]
(b) Distinguish—consent to disclosure withdrawn [§1583]
A magazine cannot rely on consent to publish embarrassing private facts
elicited from a plaintiff during an interview if the plaintiff later changes his
mind and, before publication, withdraws permission to print the story.
[Virgil v. Time, Inc., supra, §1573]
c. Constitutional privilege [§1584]

To assure freedom of speech and press, a constitutional privilege for the media has
been recognized in the public disclosure area.
(1) Matters of public record—absolute privilege [§1585]
If the matters reported or published are taken from official court records and are
accurately stated, the constitutional privilege is absolute. Rationale: The public
interest in free reporting of such matters outweighs any interest in privacy on the
part of those whose names appear in the records.
356
Example: A broadcaster who announces the name of a deceased rape

victim obtained from court records is not liable for invasion of privacy of the
victim’s family. [Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)]
Example: A newspaper’s publication of facts contained in a 40-year-old

court record about an individual involved in a child sexual abuse
investigation did not create tort liability, even though the individual’s name may
not have been newsworthy. [Uranga v. Federated Publications, Inc., 67 P.3d
29 (Idaho 2003)]
(2) Other matters—qualified privilege [§1586]
If the matter was lawfully obtained from the government, is truthful, and
prohibition is not necessary to further a “state interest of the highest order,”
defendants are privileged to publish information.
Example: Publication of a rape victim’s name that was obtained through
inadvertent release by the police could not create civil (or criminal) liability.
[The Florida Star v. B.J.F., 491 U.S. 524 (1989)]
9. Damages [§1587]
The same rules for damages that apply to intrusions apply to public disclosure. (See
supra, §1560.) The damages here are more likely to be based on the humiliation arising
from the public disclosure.
10. Privacy Action Rejected [§1588]

A few states have rejected this type of privacy action where true facts are involved.
These courts have expressed skepticism that the judiciary can develop adequate
standards to determine what is highly offensive to a reasonable person and a fear that
juries will second guess editorial judgments about truthful stories. [See, e.g., Hall v.
Post, 372 S.E.2d 711 (N.C. 1988); Anderson v. Fisher Broadcasting Cos., supra,
§1562]
a. New York statute [§1589]

Under a New York statute [N.Y. Civ. Rights Law §§50, 51], a true report about a
person may be actionable only if published for “advertising purposes or for the
purposes of trade”—which generally have been limited to advertisers—with the result
that media stories are virtually never actionable. [Finger v. Omni Publications
International, Ltd., 77 N.Y.2d 138 (1990)]
C. Appropriation of Plaintiff’s Name or Likeness

357

To recover for this type of invasion of privacy, the plaintiff must prove:
• Unauthorized Use by Defendant of Plaintiff’s Name or Likeness for a
Commercial Purpose
• Causation
2. Unauthorized Use [§1591]

It is the unauthorized use of the plaintiff’s name or likeness that is actionable.
Therefore, it is no defense that the plaintiff is in fact a satisfied customer or user of the
product involved. [Fairfield v. American Photocopy Equipment Co., 138 Cal. App.
2d 82 (1955)]
a. Distinguish—defamation [§1592]
If the plaintiff is not a user of the product, and the advertisement hurts her
reputation, it may also be defamation.
b. Consent [§1593]
A person who consents to the use of her likeness for a commercial purpose, and puts
no limits on the nature of that use, cannot claim that her privacy has been invaded by
the unforeseen manner in which her likeness was used. [Miller v. American Sports
Co., 467 N.W.2d 653 (Neb. 1991)—model in bath towel pictured in hot tub
brochure beneath the letters “S E X”]
c. Extension beyond name or likeness [§1594]

Some cases have extended protection beyond the “name or likeness” to other
features associated with the plaintiff’s identity. [Wendt v. Host International, Inc.,
125 F.3d 806 (9th Cir. 1997), cert. denied, 531 U.S. 811 (2000)—actors who played
roles in popular television series that took place in a bar had action for use in airport
bars of robots that resembled the characters that they had played in the series; White
v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992), cert.
denied, 508 U.S. 951 (1993)—advertiser’s robot too closely evoked image of
woman who performed role on television quiz show; Carson v. Here’s Johnny
Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983)—product’s name too close to
words used to introduce television performer at each show]
3. Right of Publicity vs. Right of Privacy [§1595]

If the plaintiff is a celebrity, the use of her name clearly has commercial value so that she
is entitled to damages not so much for invasion of privacy but rather for interference with
her right of publicity (i.e., her right to sell her endorsements to someone else). [Haelan
Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.), cert. denied,
346 U.S. 816 (1953)]
358
a. Distinguish—private person [§1596]

On the other hand, if the plaintiff is an unknown person, the unauthorized use of her
name is more clearly an invasion of privacy; the plaintiff is entitled to compensation
not for the commercial value of her name, but for interference with her “right to be
let alone.” [Fairfield v. American Photocopy Equipment Co., supra]
As with intrusion, causation is an essential element. (See supra, §1557.)
5. Defense—Newsworthiness [§1598]
If the plaintiff is a public figure or is a currently newsworthy figure, publication of the
plaintiff’s name or likeness is not actionable, as long as the use is not for the purposes of
trade or advertising.
Example: Following a detective agency’s investigation, P was convicted of the theft
of bearer bonds. The agency published P’s name and picture in its newsletter, which
was distributed to law enforcement agencies and law firms. The court found that the
main purpose of the article was noncommercial, and thus it was subject to the
newsworthiness privilege. [Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995
(Colo. 2001)]
Example: A newspaper has a constitutional right to reprint action photos of a

recently retired football star because they show newsworthy items of public interest.
[Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995)]
Compare: A game manufacturer’s use of a professional golfer’s name in its product

is actionable. [Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J. 1967)]
a. No constitutional privilege for some noncommercial uses that destroy right of

publicity [§1599]
There is no First Amendment privilege allowing media to film or broadcast an entire
commercial entertainment or performance (e.g., sports event) without the consent of
the participant. It may be of public interest, but this does not give the media any
privilege to impair the performer’s right of publicity—i.e., the right to get paid for
this use of the performance. This is comparable to media publication of an entire
copyrighted work without the owner’s consent. [Zacchini v. Scripps-Howard
Broadcasting Co., 433 U.S. 562 (1977)—unauthorized television news coverage of
“human cannonball” act at county fair]
b. Newsworthiness privilege inapplicable to promotional materials depicting

noncurrent events [§1600]
A promotional calendar distributed by a for-profit medical clinic where abortions
were performed may not use an unaffiliated doctor’s picture without her
359
consent, even if the photograph was from a past newsworthy event or the calendar’s
theme (the history of women’s rights) was of undisputed public interest. [Beverley v.
Choices Women’s Medical Center, Inc., 78 N.Y.2d 745 (1991)]
6. Damages [§1601]
For celebrity plaintiffs, the damages for appropriations include the reasonable value
of the use of the plaintiff’s name or likeness. Thus, the defendant does not profit
from the unauthorized use, and the plaintiff is compensated for any loss sustained by
being unable to sell her name, features, or act to some other company. For private
plaintiffs, emotional harm is likely to be the main element.
D. Publicity Placing Plaintiff in a “False Light”

This action involves:
• Publication by Defendant that Places Plaintiff in a False Light (Highly Offensive)
• Knowing or Reckless Falsity if “Newsworthy” Matter
• Causation
a. Distinguish—appropriation of plaintiff’s name or likeness [§1603]

This privacy action does not involve commercial appropriation; rather, it involves the
unauthorized use of the plaintiff’s name or likeness that places the plaintiff in a false
light in the public eye. [Cantrell v. Forest City Publishing Co., 419 U.S. 245
(1974)]
2. Publication [§1604]
For the plaintiff to suffer damages from a “false light” publication, dissemination to a
reasonable number of third persons is required. [Bernstein v. National Broadcasting
Co., 129 F. Supp. 817 (D.D.C. 1955), aff ’d, 232 F.2d 369 (D.C. Cir. 1956)]
3. Falsity Required [§1605]

The false light in which the plaintiff is placed must be highly offensive to a reasonable
person. [Rest. 2d §652E]
Example—false light by association: D published photographs of P in Hustler
magazine without her permission. The court found that the implication that P was
associated with the magazine could be highly offensive to a reasonable person.
[Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), cert. denied, 475
U.S. 1094 (1986)]
360
Compare: Where D magazine includes photographs of P without her consent as a

part of a book review, no association with the magazine is suggested. Thus, no false
light privacy claim exists. [Faloona v. Hustler Magazine, Inc., 799 F.2d 1000 (5th Cir.
1986), cert. denied, 479 U.S. 1088 (1987)]
Compare: Ds (including a reporter and camera crew) conducted an “ambush

interview” of P, with the film portraying P as unresponsive to charges of misconduct
by P’s company. The court found that the interview did not portray P in a false light
because it was P’s own conduct captured on film. [Machleder v. Diaz, 801 F.2d 46 (2d
Cir. 1986), cert. denied, 479 U.S. 1088 (1987)]
4. Distinguish—Defamation [§1606]
If the “false light” would affect the plaintiff’s reputation in the community, an action for
defamation may also lie. Most states will prevent the plaintiffs from escaping the
restrictions of defamation law simply by calling the action one for privacy. This would
apply to such matters as the need for special damages. [Fellows v. National Enquirer,
Inc., 42 Cal. 3d 234 (1986)—applying state’s libel retraction and special damages
provisions to false light privacy action]
a. Note
A handful of states do not recognize the false light privacy cause of action precisely
because a defamation action so closely relates to the false light cause of action that it
suffices to protect a plaintiff’s reputation and other interests. [See, e.g., Cain v.
Hearst Corp., 878 S.W.2d 577 (Tex. 1994)]
5. Fault [§1607]
The First Amendment protects media (and other) defendants from liability for some
“false light” publications.
a. Newsworthy matters [§1608]

Newsworthy statements by the media that put the plaintiff in a false light are not
actionable unless the “knowing or reckless falsity” standard is met (i.e., publisher
knew or was blind to the fact that publication would place the plaintiff in highly
offensive false light in the public eye). [Time, Inc. v. Hill, 385 U.S. 374 (1967)]
Example: A letter sent by a private individual to the state governor, attorney
general, and members of the media charging a state board president’s husband with
improperly thrusting himself into state affairs did not give rise to a false light claim in
the absence of clear and convincing evidence of actual malice. [Dodson v. Dicker,
812 S.W.2d 97 (Ark. 1991)—plaintiff must prove that the writer entertained actual
doubts about the accuracy of the charges]
(1) Distinguish—defamation [§1609]
Should constitutional protections in this privacy area develop by analogy to the
Gertz case in defamation (see supra, §1446), the media would not be
361
shielded from liability for false light publications of private matters if they were
negligent in not recognizing that a private person was portrayed in a false light.
The Court has left the question open. [Cantrell v. Forest City Publishing Co.,
supra] Some states have rejected the possibility of using negligence. [Colbert v.
World Publishing Co., 747 P.2d 286 (Okla. 1987)]
As with intrusion, causation is an essential element. (See supra, §1557.)
7. Damages [§1611]
The plaintiff may recover for damages to reputation, for any emotional distress suffered,
and for pecuniary damages.
362
E. Claims Involving Privacy of Third Persons

1. Publications Regarding Living Persons [§1612]
Most courts hold that a plaintiff cannot recover for an invasion of privacy based on
publicity concerning another living person no matter how close their relationship.
[Coverstone v. Davies, supra, §167—father denied recovery for invasion of his privacy
based on newspaper publicity concerning arrest of son]
2. Publications Concerning a Dead Person [§1613]
Neither can a cause of action ordinarily be maintained on account of publications
regarding a person who is already dead.
a. Survivors’ privacy claims [§1614]

Most courts hold that there is no “relational” right of privacy, so that a decedent’s
survivors (no matter how close) cannot complain of any invasion of their interests
because of publicity concerning the decedent. [Metter v. Los Angeles Examiner, 35
Cal. App. 2d 304 (1939)—no recovery allowed for P’s great anguish when D
newspaper published photo of P’s wife and lurid details of her suicide]
b. Decedent’s claims [§1615]

And the decedent’s right of privacy is a personal right that generally does not survive
her death. Hence, no cause of action can be maintained on behalf of the decedent by
her estate or heirs for publications after her death. [See, e.g., Maritote v. Desilu
Productions, Inc., 345 F.2d 418 (7th Cir. 1965)—suit by heirs of Al Capone]
(1) Distinguish—publications during lifetime [§1616]
If the invasion occurred during the decedent’s lifetime (rather than after death),
clearly the decedent could have sued. Whether her estate can sue, however,
depends on the survival statute in effect (see supra, §1151). If the statute is
broad enough, an action can be maintained by the estate. [Estate of Berthiaume
v. Pratt, 365 A.2d 792 (Me. 1976)—doctor took unauthorized pictures of dying
cancer patient to show progression of illness; patient’s estate allowed to sue for
invasion of patient’s privacy]
(2) Celebrity’s right of publicity [§1617]
Most courts hold that whatever right a celebrity has to exploit her name and
likeness must be exercised during the celebrity’s life. If it is not, the heirs cannot
inherit an exclusive right to that exploitation after death. [Lugosi v. Universal
Pictures, 25 Cal. 3d 813 (1979); but see Martin Luther King, Jr., Center for
Social Change, Inc. v. American Heritage Products, Inc., 296 S.E.2d 697
(Ga. 1982)—contra]
363
(a) Exploitation during life [§1618]

At least where the right of exploitation was exercised during the celebrity’s
lifetime and then assigned to the plaintiff, it has been held to survive. [Acme
Circus Operating Co. v. Kuperstock, 711 F.2d 1538 (11th Cir. 1983)]
F. Important—Related Torts
1. Publication May Give Rise to Several Torts [§1619]
It should be emphasized again that the torts of defamation, wrongful infliction of
emotional distress, and wrongful invasion of privacy frequently occur concurrently,
and accordingly each should be considered whenever any one of them appears to be
involved.
2. Breach of Confidential Relationship [§1620]

If the parties have some preexisting relationship, courts may rely on that relationship
instead of a privacy approach. [Humphers v. First Interstate Bank of Oregon, 696
P.2d 527 (Or. 1985)—physician who helped adopted person learn identity of her natural
mother may have breached confidential relationship between physician and his former
patient (the mother)]
3. Limitation on Causes of Action Under Uniform Act [§1621]

Under the Uniform Single Publication Act, in effect in some states [e.g., Cal. Civ. Code
§3425.3], only a single cause of action is allowed for damages arising from any single
publication—whether for defamation, invasion of privacy, or any other tort founded on
the publication. Recovery for one tort thus bars any other claim for damages arising
out of the same publication, anywhere. (Any issue of a book or magazine, any radio or
television broadcast, or any one exhibition of a movie is regarded as a “single
publication”—no matter how many persons heard it, read it, etc.)
364
Chapter Ten:
Other Torts
CONTENTS
Key Exam Issues

A. Misrepresentation §1622
B. Injurious Falsehood §1684
C. Interference with Economic Relations §1710
D. Unjustifiable Litigation §1758
365
Key Exam Issues
The list of torts discussed up to now is by no means all-inclusive, although it probably covers
the torts you studied in your law school class. A number of other torts, however, have also
been recognized. (Some are discussed in other Gilbert Summaries; e.g., unfair competition
and infringement of literary property are covered in the Remedies Summary.) Of the
remaining recognized torts, the following are the most important for you to know:
1. Misrepresentation (based on intent, negligence, or strict liability);
2. Injurious falsehood (interference with the prospect of a sale or other advantageous
relationship affecting the plaintiff’s property);
3. Interference with economic relations (interference with contract or prospective
economic advantage); and
4. Unjustifiable litigation (malicious prosecution, wrongful institution of a civil case, and
abuse of process).
But also remember—there is no fixed, rigid number of torts; facts that do not fit any
particular “classic tort” pattern may still be actionable. And many new tort actions have been
created by statute, such as those authorizing damages for discrimination and civil rights
violations.
A. Misrepresentation
Misrepresentation—which protects the plaintiff’s economic (not personal or physical)
interests—may be predicated on any of the three bases of liability (intentional tort,
negligence, or strict liability). However, with misrepresentation, there are substantial
differences in the prima facie case and in the scope of liability, depending on which basis
for liability is involved.
Example: D physician gave an incorrect opinion to P’s attorney; as a result, P did
not try to sue a negligent surgeon within the statute of limitations. P’s suit against D
was for the economic loss caused by the dismissal of that earlier lawsuit—and was
properly brought for the misrepresentation. The loss is equivalent to what would have
been recoverable in the personal injury case. [Hart v. Browne, 103 Cal. App. 3d 947
(1980)]
366
2. Intentional Misrepresentation (“Fraudulent Misrepresentation” or “Deceit”)

[§1623]
Prima facie case:
• Misrepresentation by Defendant
• Scienter
• Intent to Induce Plaintiff’s Reliance
• Causation—Actual Reliance
• Justifiable Reliance
• Damages
a. Misrepresentation by defendant
(1) Affirmative misrepresentation [§1624]
Ordinarily, there must be a false, material representation of a past or present
fact. However, in certain cases, false representations of opinion or law may also
be actionable. (This is a question of justifiable reliance; see infra, §§1643-1653.)
(a) “Material” misrepresentation [§1625]
“Material” covers any representation that would have influenced a
reasonable person in the plaintiff’s position in this type of business dealing,
as well as any representation that the defendant knew this specific plaintiff
considered important.
(b) “Fact” [§1626]
A misrepresentation of a present state of mind or intention is treated as a
misrepresentation of fact (e.g., promises to perform that the promisor never
intended to perform). “A man’s state of mind or intention is as much a fact
as his state of digestion.” [Lazar v. Superior Court, 12 Cal. 4th 631
(1996); Channel Master Corp. v. Aluminum Ltd. Sales, Inc., 4 N.Y.2d
403 (1958)]
1) Unauthorized promise [§1627]
A promise made by someone who knows he has no authority to make
the promise is actionable as a misrepresentation. [Boivin v. Jones &
Vining, Inc., 578 A.2d 187 (Me. 1990)—company held liable for fraud
after employee, who was promised lifetime employment by vice
president, was fired]
(c) “Representation” [§1628]
The representation is usually by oral or written words, but it may be by
conduct as well (e.g., exhibiting a document, turning back the mileage
indicator on a car offered for sale, etc.).
(2) Fraudulent concealment [§1629]
Even though no affirmative representation is made by the defendant, a
fraudulent concealment of facts will be a sufficient “misrepresentation,” except
where:
367
(a) The bill of sale or transaction is marked “as is” (minority view is
contra); or
(b) Plaintiff is charged with some knowledge or notice of the facts
concealed.
(3) Failure to disclose [§1630]
On the other hand, the defendant is ordinarily not under any duty to disclose
facts. Thus, failure to disclose (as distinguished from active concealment) all the
defendant knows is not a “misrepresentation.” [Rest. 2d §551]
(a) Exceptions [§1631]
In the following cases, the defendant’s failure to disclose will support an
action for intentional misrepresentation.
1) Fiduciary relationship [§1632]
If the defendant and the plaintiff are in some special fiduciary
relationship to each other (e.g., trustee-beneficiary, guardianward), the
defendant’s failure to disclose will support an action for intentional
misrepresentation.
2) “Half-truths” [§1633]
A defendant who has made an incomplete or ambiguous statement or
half-truth, knowingly misleading, comes under a duty to clarify the
statement and disclose the truth. [Silva v. Stevens, 589 A.2d 852 (Vt.
1991)—discussion of leaks that had been fixed created duty to warn
about other leaks that had not been fixed, even absent duty to speak in
the first place]
3) New information [§1634]
A defendant has a duty to disclose when he has made a statement
believing it to be true but later finds out that it is false, or if the statement
was true when made but material facts have changed, and the defendant
knows that the plaintiff is relying on the first version.
4) Reliance [§1635]
If the defendant has made a statement knowing it is false but not
intending that anyone rely on it, and then finds out that the plaintiff is
about to act on it, the defendant also has a duty to disclose.
5) Sale of property [§1636]
Several states (modern trend) recognize an additional exception: In cases
involving the sale of property, if certain material facts are known to the
seller and are both unknown and not readily accessible to the buyer,
the seller is bound to disclose the facts
368
to the buyer; the failure to do so constitutes misrepresentation actionable

for damages or rescission. [See, e.g., Johnson v. Davis, 480 So. 2d 625
(Fla. 1985); Ollerman v. O’Rourke Co., 288 N.W.2d 95 (Wis. 1980)]
Examples: Actionable misrepresentation includes the failure to
disclose that: the land sold was filled; the building sold was infested
by termites; the house sold had a badly leaking roof when it rained;
improvements on the property sold violated local building, health, or
zoning ordinances or regulations; or litigation was pending involving the
business or property sold. [See, e.g., Strawn v. Canuso, 657 A.2d 420
(N.J. 1995)—duty on seller and broker to disclose existence of off-site
closed landfill “not readily observable” by buyer]
b. Scienter
(1) Defined [§1637]
“Scienter” refers to the defendant’s knowledge of the falsity of the
representation made, or knowledge that he had an insufficient basis for
determining the truth of the representation (i.e., recklessness in making the
statement). [Derry v. Peek, 14 A.C. 337 (1889); Rest. 2d §526]
(2) Intent to deceive implied [§1638]
Negligence alone is not sufficient for scienter; i.e., the defendant’s honest belief
in the truth of the representation, even if based on unreasonable grounds, will
not support an action for intentional misrepresentation. But the enormity of the
unreasonable behavior may allow a jury to infer lack of honest belief, which
would suffice for scienter.
Because it is relatively easy to claim fraud and often hard to disprove it, most
courts demand that plaintiffs prove their claims of fraud by clear and
convincing evidence. [Greycas, Inc. v. Proud, 826 F.2d 1560 (7th Cir. 1987),
cert. denied, 484 U.S. 1043 (1988)]
c. Intent to induce reliance of plaintiff [§1640]

The defendant must have intended to induce the reliance of the plaintiff, or a class
of persons to which the plaintiff belongs, in a particular transaction. [Metric
Investment, Inc. v. Patterson, 244 A.2d 311 (N.J. 1968)]
(1) Exception—ongoing deception [§1641]
If the misrepresentation is a “continuous deception” (e.g., the mislabeling of a
product by its manufacturer, or a misrepresentation contained in a negotiable
instrument), it is not necessary that the reliance of a particular plaintiff (or
reliance in a particular transaction) be intended. Anyone who acquires the
product or instrument may sue.
369
d. Causation [§1642]
It must be proven that the misrepresentation played a substantial part in inducing the
plaintiff to act as she did—i.e., actual reliance. The plaintiff’s awareness of the
falsity of the misrepresentation precludes reliance. [Nader v. Allegheny Airlines,
Inc., 626 F.2d 1031 (D.C. Cir. 1980)—P knew that airlines often “overbooked”]
(1) Note
The use of an “as is” clause will not prevent the plaintiff from proving fraud.
[Engels v. Ranger Bar, Inc., 604 N.W.2d 241 (S.D. 2000)—neither “as is” nor
parol evidence rule bars plaintiff from proving existence of fraud]
e. Justifiable reliance by plaintiff

(1) Plaintiff’s reliance must be foreseeable [§1643]
For the plaintiff’s reliance to be “justified” it must have been intended by the
defendant or reasonably foreseeable. For example, a defendant would be liable
to a plaintiff if the defendant made the misrepresentation to a third person but it
is foreseeable that the misrepresentation will be communicated to the plaintiff.
[Rest. 2d §533] On the other hand, if the plaintiff knows that she was not the
person whose reliance was intended by the defendant (as where the plaintiff was
an agent of a third person and the defendant made the representation to the
plaintiff only for purpose of transmission to that person, and intending only that
person to rely thereon), the plaintiff cannot justifiably rely thereon.
(2) Whether reliance is “justified” depends on type of representation [§1644]
Even assuming the plaintiff’s reliance was intended or foreseeable, and that she
did actually rely, the plaintiff’s reliance on every type of representation made by
the defendant may not be “justified.”
(a) Representations of fact [§1645]
The plaintiff’s unconditional reliance on material misrepresentations of fact
(including misrepresentations of present state of mind and intention) is
always justified, except where the facts are obviously false. [See Lockard
v. Carson, 287 N.W.2d 871 (Iowa 1980)]
1) No duty to investigate [§1646]
A plaintiff is under no duty to check the truth of the defendant’s
representations of fact, no matter how easy it would be to do so. [See
Belmac Hygiene, Inc. v. Belmac Corp., 121 F.3d 835 (2d Cir. 1997)—
P’s reliance on D’s misrepresentation that FDA review was not needed
to market medical product was sufficient to support claim even though
further investigation would have revealed inaccuracy of statement;
Engels v. Ranger Bar, Inc., supra]
370
If the plaintiff does investigate, however, she cannot rely on

representations that are inconsistent with the facts she discovered or
reasonably should have discovered during such investigation.
(b) Representations of opinion [§1647]
A plaintiff is ordinarily not justified in relying on misrepresentations of
opinion, value, or quality unless one of the following four exceptions
applies:
1) Superior knowledge [§1648]
Where the defendant has superior knowledge not available to the
plaintiff (e.g., D is a jeweler, art dealer, etc., seeking to make a sale), the
plaintiff may justifiably rely on the defendant’s representations of
opinion. The difficult problem is to determine when a dealer’s “puffing”
or bragging about his wares turns from “loose sales talk” into an
actionable misrepresentation (i.e., statements that can reasonably be
interpreted as assurances of specific facts). [Vulcan Metals Co. v.
Simmons Manufacturing Co., 248 F. 853 (2d Cir. 1918)]
2) Fiduciary duty [§1649]

The plaintiff may justifiably rely on the defendant’s representations of
opinion if the defendant owes some fiduciary duty to the plaintiff (e.g., a
trustee-beneficiary relationship).
3) Special relationship [§1650]
Where the defendant and the plaintiff are in some way affiliated or
specially related, so that the defendant has “secured the confidence” of
the plaintiff (e.g., P and D are members of a family or common fraternal
or religious organization), the plaintiff may justifiably rely on the
defendant’s representations of opinion.
4) Undisclosed interest [§1651]
The plaintiff may justifiably rely on the defendant’s advice as to a
transaction the plaintiff is contemplating with a third party where the
defendant does not disclose his financial interest in the deal. [Rest. 2d
§543]
371
Example: Bank president D recommends XYZ stock to customer P

as a safe investment, without any reasonable grounds for believing
this to be true and without disclosing that he has a financial interest in
the sale of the stock. P’s reliance on D’s advice is justified.
(c) Representations of law [§1652]
A plaintiff’s reliance on the defendant’s representations of law is justified
when the representation is in the nature of a fact (e.g., “the Eighteenth
Amendment was repealed yesterday”). However, if the representation
constitutes an opinion (e.g., “the city licensing ordinances should not affect
your type of business”), reliance is justified only in the four situations
discussed immediately above. [National Conversion Corp. v. Cedar
Building Corp., 23 N.Y.2d 621 (1969); Rest. 2d §545]
1) Distinguish—regulations [§1653]
There is no duty to disclose the existence of a regulation, because both
parties have constructive knowledge of it. [Baskin v. Collins, 806
S.W.2d 3 (Ark. 1991)—no cause of action for nondisclosure of federal
environmental regulations affecting gas station for sale]
f. Damages [§1654]
Unlike most intentional torts, proof of actual damages must be shown to obtain
any recovery. The measure of damages is discussed infra, §§1678-1683.
372
3. Negligent Misrepresentation [§1655]

Prima facie case:
• Misrepresentation by Defendant
• Negligence Toward Particular Group
• Cause in Fact—Actual Reliance
• Justifiable Reliance
• Proximate Cause
• Damages
a. Misrepresentation—made in business or professional capacity [§1656]

The same type of misrepresentation may serve as a basis for an action in negligent
misrepresentation as for an action in intentional misrepresentation, above. Note: The
negligent representation must normally be made by one in the business of supplying
information for the guidance of others in business transactions (e.g., accountants,
lawyers, architects, surveyors, title abstractors, etc.). [Ritter v. Custom
Chemicides, Inc., 912 S.W.2d 128 (Tenn. 1995)—extending liability beyond
statements by “professionals” to cover instructions for growing tomatoes]
Example: P is induced to withdraw from participation in a benefit program in
reliance on negligent misrepresentation of insurance agent D. [Florenzano v.
Olson, 387 N.W.2d 168 (Minn. 1986)]
(1) Distinguish—information volunteered under nonbusiness conditions
[§1657]
If the representation is volunteered in a nonprofessional or noncommercial
setting (e.g., “curbstone advice” offered by a lawyer to a neighbor), liability will
result only if the statements are not honestly made.
(2) Distinguish—ordinary negligence [§1658]
If an attorney or other professional behaves carelessly, the resulting harm need
not involve any reliance element. An attorney’s failure to file suit before the
statute of limitations expires, or the drafting of an invalid will that costs an
intended legatee her inheritance, may cause harm without any negligent
misrepresentation being made and relied on by the plaintiff. (See infra, §§1754-
1755.)
b. Negligence toward particular plaintiff [§1659]

If the defendant provides information with the intent that the plaintiff rely on it in a
business transaction or knows that such reliance is likely, the defendant is under a
duty to exercise reasonable care to discover the truth or falsity of the
representations made. [International Products Co. v. Erie Railroad, 244 N.Y. 331
(1927)] (Note how different this is from the scienter requirement in intentional
misrepresentation, §1637, supra.)
373
(1) To whom duty owed [§1660]
A defendant owes a duty of care only to those persons to whom the
representation was made or to those the defendant knew would rely upon it; i.e.,
the defendant must have contemplated the reliance of a particular plaintiff or
group of persons to which the plaintiff belongs. A duty to avoid negligent
misrepresentation may also arise when a party volunteers information. [Jackson
v. Montana, 956 P.2d 35 (Mont. 1998)—adoption agency assumed duty to
refrain from making negligent misrepresentation when it began volunteering
information to prospective adoptive parents]
(a) Distinguish—deceit [§1661]
If the action is for intentional misrepresentation, the defendant is liable to
any person whose reliance was intended or reasonably foreseeable (see
supra, §1643).
(b) Privity of contract not required [§1662]
It is not essential that the plaintiff be in privity of contract with the
defendant. Liability may be found where the defendant made a negligent
representation to a third person (e.g., client) with knowledge that the client
intended to communicate the information to a specific individual or group
for the purpose of inducing reliance thereon.
Example: Public weigher issued certificate to a seller it knew would sell
goods to a particular purchaser who would purchase in reliance on the
certificate. [Glanzer v. Shepard, 233 N.Y. 236 (1922); but see Bronstein
v. GZA GeoEnvironmental, Inc., 665 A.2d 369 (N.H. 1995)—agreement
that report was prepared for exclusive use of only one named person barred
others from suing in reliance on information contained in report]
(2) Professional liability [§1663]
Although professionals are always liable to clients for negligently prepared
reports and documents (e.g., financial statements), there is considerable
disagreement as to how far liability may be extended to third parties.
(a) Traditional view [§1664]
Under the traditional view, an accountant was not liable to third parties for
negligently prepared statements unless the relationship between the
accountant and the third party was essentially one of privity. [See
Ultramares Corp. v. Touche, 255 N.Y. 170 (1931)—accountants
negligently certified corporation’s financial statements, knowing that
corporation intended to use the statements in dealing with creditors
generally, but not knowing the nature of the dealings or identity of particular
persons who would be shown the statements]
1) Rationale
The reason behind this limitation is the potential consequence of
374
imposing a duty of care to third persons—i.e., the concern that the

defendant’s thoughtless slip in dealing with one person (client) might
expose him to “liability in an indeterminate amount for an indeterminate
time to an indeterminate class” of other persons. [Ultramares Corp. v.
Touche, supra]
(b) Modern views [§1665]
Recently, courts have become more willing to expand the scope of duty in
Ultramares-type cases. Three different approaches have emerged:
1) New York (“linkage”) view [§1666]
Before an accountant (defendant) may be liable for negligence to a
noncontractual party (plaintiff), the defendant must be aware that a
known party was intending to rely on the financial statement and some
conduct must link the defendant to the plaintiff in a way that suggests
the accountant’s willingness to incur a duty to the creditor. [Security
Pacific Business Credit, Inc. v. Peat Marwick Main & Co., 79
N.Y.2d 695 (1992)—a single unsolicited phone call to the accountant
does not create the needed linkage]
2) California (“specific foreseeability”) view [§1667]
An accountant may be held liable if she knows that a specific third party
plans to rely on the statement for a transaction whose nature and extent
is known to the accountant. [Bily v. Arthur Young & Co., 3 Cal. 4th
370 (1992)—similar to Rest. 2d §552]
3) New Jersey (“general foreseeability”) view [§1668]
A very few states hold that an accountant may be liable if the third party
(plaintiff) belongs to a class of people who could generally be foreseen to
receive and rely on the statement. [Citizens State Bank v. Timm,
Schmidt & Co., 335 N.W.2d 361 (Wis. 1983)]
(c) Distinguish—liability based on statute [§1669]
Quite apart from common law negligence, liability to third persons may be
based on a defendant’s violation of statutory duties to provide accurate
information. Such statutes create a duty to the general public; therefore, it is
not necessary to show the defendant’s knowledge that a particular plaintiff
would rely.
Example: An accountant who negligently certifies a financial statement for a
large corporate client may be held liable under S.E.C. Rule 10b-5 to any
member of the public who purchases or sells the corporate shares in reliance
thereon. (See Corporations Summary.)
375
c. Cause in fact (actual reliance)

See supra, §§415 et seq.
d. Justifiable reliance [§1670]

This is the same as in intentional misrepresentation (see supra, §§1643-1653), except
that unreasonable failure to investigate may be contributory negligence.
e. Proximate cause
See supra, §§442 et seq.
f. Damages
See discussion below.
4. Misrepresentation Predicated on Strict Liability (“Innocent Misrepresentation”)

[§1671]
Some courts also impose damages for certain misrepresentations in connection with the
sale of land or chattels—even if the falsity was neither known nor the result of
negligence. [Rest. 2d §552C; see, e.g., Rosenau v. City of New Brunswick, 238 A.2d
169 (N.J. 1968)]
a. Nature of liability [§1672]

The basis for liability here is very close to that for breach of express warranty (a
contract theory); i.e., having made a warranty as to the thing sold, the seller is bound
thereby whether or not he had reason to know of its falsity. Another analogy is unjust
enrichment—in which the defendant gets something from the plaintiff without
justification.
(1) But note
This is clearly not a contract action; hence, contractual defenses such as the
parol evidence rule (which often excludes verbal warranties made in connection
with a written contract of sale) do not apply.
b. Prima facie case [§1673]

The prima facie case is the same as for negligent misrepresentation (see supra,
§1655), except that there is no requirement of fault at all. All that need be shown is
a false representation made with the intent to induce the plaintiff’s reliance in a
business transaction, and the plaintiff’s justifiable reliance thereon to her financial
detriment and to the defendant’s gain.
(1) Distinguish—products liability [§1674]
Recovery for misrepresentation is limited to pecuniary damages to the plaintiff’s
business interests. If physical harm has resulted from use or consumption of a
product, consider the products liability rules (see supra, §§925 et seq.). [Rest.
3d-PL §9]
5. Defenses

Contributory negligence is a defense to negligent misrepresentation, but not to
376
intentional misrepresentation or to misrepresentations pegged on strict liability. [See,

e.g., FDIC v. W.R. Grace & Co., 877 F.2d 614 (7th Cir. 1989), cert. denied, 494
U.S. 1056 (1990)—contributory negligence not a defense to intentional fraud claim;
Otero v. Jordan Restaurant Enterprises, 922 P.2d 569 (N.M. 1996)—comparative
fault principles inapplicable to intentional misrepresentation claim]
(1) Note
Most states apply comparative negligence. [Greycas, Inc. v. Proud, supra,
§1639; but see Estate of Braswell v. People’s Credit Union, 602 A.2d 510
(R.I. 1992)—contra]
b. Assumption of risk [§1676]

Assumption of the risk is a defense to both strict liability misrepresentations and
negligent misrepresentations.
c. Exculpatory contracts [§1677]

In most states, exculpatory contracts that seek to exempt one from fraud or
intentional wrongdoing (e.g., “buyer hereby waives any misrepresentations,” etc.)
are void. [See, e.g., Cal. Civ. Code §1668; Silva v. Stevens, supra, §1633—“as is”
provision in contract does not bar actions for fraud or for negligent
misrepresentation]
(1) But note
In a few states, a contract that says the buyer is not relying on the seller’s
statement will bar a tort claim for fraud [see, e.g., Danann Realty Corp. v.
Harris, 5 N.Y.2d 317 (1959)], but a general merger clause will not [see Hobart
v. Schuler, 55 N.Y.2d 1023 (1982)].
6. Measure of Damages [§1678]
The courts are divided over the measure of damages to be awarded in misrepresentation
cases, regardless of which basis for liability is involved:
a. Benefit-of-bargain rule [§1679]

The majority of courts hold that the plaintiff is entitled to the benefit of the bargain:
the value of the property as contracted for (i.e., had the representation been true)
less the value of the property as it actually was. [See, e.g., Hartwell Corp. v. Bumb,
345 F.2d 453 (9th Cir. 1965); Rungee v. Cox, 599 So. 2d 1151 (Ala. 1992)]
(1) Note
This is basically the same measure as applied in contract actions for breach of
warranty. (See Contracts Summary.)
377
(2) And note

If the plaintiff is proceeding on an innocent misrepresentation theory, contract-
based damages are not usually permitted because the action is thought of as one
similar to restitution.
b. Out-of-pocket loss rule [§1680]

A minority view limits the plaintiff’s recovery to out-of-pocket loss (the price paid
less the value of the property received) which is a more typical tort measure of
compensatory damage.
Example: D sells land to P for $10,000, falsely representing that the water well
is adequate for irrigation purposes. Without adequate water, the land is worth no
more than $7,000. With adequate water, it is realistically worth $15,000. Under the
“benefit-of-bargain” rule, P recovers $8,000; whereas under the “outof-pocket loss”
rule, recovery is limited to $3,000.
c. Middle ground positions [§1681]

A few courts will apply either rule, making it a question of proof: i.e., if the value of
the property as represented is proved to a reasonable certainty, the plaintiff gets the
benefit of the bargain; otherwise, the plaintiff can recover only out-of-pocket loss.
[See, e.g., Hinkle v. Rockville Motor Co., 278 A.2d 42 (Md. 1971); Zeliff v.
Sabatino, 104 A.2d 54 (N.J. 1954)]
d. Emotional distress [§1682]

Some states allow damages for emotional distress if it is a “natural and proximate”
consequence of the misrepresentation. [See, e.g., Kilduff v. Adams, Inc., 593 A.2d
478 (Conn. 1991); but see Jourdain v. Dineen, 527 A.2d 1304 (Me. 1987)—
contra] Some states also require that the emotional distress damages be severe in
order to be recoverable. [See, e.g., Nelson v. Progressive Corp., 976 P.2d 859
(Alaska 1999)]
e. Punitive damages [§1683]

If the misrepresentation was intentional and made with “malice” (intent to harm),
punitive damages may also be awarded.
(1) Note
In states that reject punitive damages, compensatory damages may be awarded
“liberally” when the tortious act was “wanton, malicious, or oppressive.”
[Crowley v. Global Realty, Inc., 474 A.2d 1056 (N.H. 1984)]
B. Injurious Falsehood
“Injurious falsehood” covers the tort commonly known as “disparagement,” “slander
378
of title,” and “trade libel.” The gist of this tort is interference with the prospect of sale
or some other advantageous relationship with respect to the plaintiff’s property. The
property involved may be real or personal, tangible or intangible (cases frequently involve
the goodwill of the plaintiff’s business). But, as will be seen, the interest protected goes
well beyond property. Prima facie case:
• False Statement by Defendant
• Publication to Others
• Statement Disparaging Business, Property, Financial Interests, Etc., of Plaintiff
• Intent
• Causation
• Special Damages
2. False Statement [§1685]

First of all, the plaintiff must always prove that the defendant published the harmful
statement and that the statement was in fact false.
3. Publication to Third Persons [§1686]

As in defamation cases, the defendant must publish the statement to others. (See supra,
§§1357 et seq.)
a. Form [§1687]
Note that the disparaging statements may be oral or written; i.e., a “slander of title”
may be in writing, and a “trade libel” may be oral.
4. Statement Disparaging Plaintiff’s Business, Property, Etc. [§1688]

A statement is “disparaging” if it is reasonably likely to discourage others from dealing
with the plaintiff or otherwise interferes with the plaintiff’s relations with others to the
plaintiff’s disadvantage. (The interest in noncommercial expectancies, such as
anticipation of a legacy, is discussed infra, §1748.)
a. Statements denying plaintiff’s ownership (“slander of title”) [§1689]

A statement that casts reasonable doubt on the validity or extent of the plaintiff’s title
is clearly a disparagement. These are the cases commonly known as “slanders of
title.” [New England Oil & Pipe Line Co. v. Rogers, 7 P.2d 638 (Okla. 1931);
Rest. 2d §624]
Examples: These include recording a document falsely asserting an interest in
P’s property (thus denying that P has the entire ownership); or asserting that title
to P’s land is “clouded,” or that anyone buying it is “buying a lawsuit.” [Phillips v.
Glazer, 94 Cal. App. 2d 673 (1949)]
b. Statements denying quality of plaintiff’s property (“trade libel”) [§1690]

Statements attacking the quality of the plaintiff’s property (land, chattels, etc.), such
that they would reasonably deter another from dealing with her, may be actionable as
a disparagement. Such cases are commonly referred to as “trade libels.” [Rest. 2d
§626]
379
Examples: Statements referring to P’s merchandise as “seconds,” “prisonmade,”

or “defective” are disparaging statements of fact.
c. Statements derogatory of plaintiff’s business in general (“trade libel”) [§1691]

Cases often involve statements that are derogatory of the plaintiff’s business or the
manner in which it is conducted, without necessarily reflecting on the title or quality
of any particular property (e.g., statements that service in the plaintiff’s restaurant is
“poor,” that its customers are “ruffians,” etc.).
Example: A common case is the false assertion that the sale of the plaintiff’s
product infringes some patent or copyright. [Dale System, Inc. v. Time, Inc.,
116 F. Supp. 527 (D. Conn. 1953)—claiming D’s business is “unique” is not
sufficient for action by D’s competitor]
d. Statements interfering with nonbusiness relations [§1692]

Several courts have permitted actions for injurious statements that did not affect any
commercial enterprise.
Example: D may be liable for giving immigration officials false information
about P’s citizenship that results in efforts to deport P. [Al Raschid v. News
Syndicate Co., 265 N.Y. 1 (1934)]
e. Statement need not be defamatory [§1693]

The defendant’s statement need not be defamatory as long as it is false.
Example: A false statement made to a potential customer that “P is dead (or out
of business), so buy your goods from me” is not defamatory of P, but certainly
is a trade libel—an “injurious falsehood.”
(1) Distinguish—defamatory statement [§1694]
On the other hand, if the statement imputes fraud or dishonesty to the company
manufacturing the product (“Ajax soap is a hoax; it isn’t as pure as advertised”),
it may be defamatory of the manufacturer (because harmful to reputation) as
well as a trade libel.
(2) Comment
Although it can be argued that nearly every imputation against a business or its
product implies some personal inefficiency or incompetence on the part of the
manufacturer or owner of the business, thus suggesting defamation in every
case, the courts refuse to go this far; i.e., defamation is found only where the
imputation is of fraud or dishonesty, rather than mere ignorance or negligence.
[Shaw Cleaners & Dyers, Inc. v. Des Moines Dress Club, 245 N.W. 231
(Iowa 1932)—dry cleaner not defamed by charge that garments only “half-
cleaned”]
380
5. Intent [§1695]
The general view requires simply an intent to disparage—i.e., to cast doubt on the
plaintiff’s property.
a. Motive immaterial [§1696]
It is not necessary to show that the defendant was motivated by malice or ill will
toward the plaintiff, or was hoping to discourage some third person from dealing with
the plaintiff. [Gudger v. Manton, 21 Cal. 2d 537 (1943); Rest. 2d §623A]
b. Scienter [§1697]
The modern view requires the plaintiff to show that the defendant knew that his
statements were false, or that he did not have enough knowledge either way to make
the statement. [Rest. 2d §623A(b)—D must “know” the statement is false or act in
“reckless disregard of its truth or falsity”]
c. Negligent falsity [§1698]

Even though negligent falsity may not suffice here, note that such a statement may
be actionable if it meets the negligent misrepresentation requirements (see supra,
§1655).
6. Causation and Damages [§1699]

The usual requirement of actual and proximate causation exists. However, unlike
defamation, where general damages are sometimes recoverable without a showing of
pecuniary loss (see supra, §§1434, 1443), here the plaintiff must always prove
proximately caused special damages—actual, out-of-pocket, pecuniary damages.
a. Slander of title [§1700]

The usual damages in slander of title cases are loss of profits on a contemplated sale
of property and costs of legal proceedings to remove the cloud on the plaintiff’s title.
b. Trade libel [§1701]

Typical damages in trade libel cases are loss of profits from specific sales to
identifiable customers rather than a general decline in business resulting from the
falsehood. [Waste Distillation Technology, Inc. v. Blasland & Bouck Engineers,
P.C., 136 A.D.2d 633 (1988)—need special damages] Where this showing is
impossible, courts may permit the plaintiff to recover on a showing of general decline
in business. [Dale System, Inc. v. Time, Inc., supra, §1691]
(1) Note
In most states, consequential damages (e.g., loss of business that forced
plaintiff to close her doors or go into bankruptcy) are not recoverable. Neither
are parasitic damages (e.g., for mental distress). [Collier County Publishing
Co. v. Chapman, 318 So. 2d 492 (Fla. 1975)—no damages for emotional
distress]
381
7. Defenses
a. Consent [§1702]
Consent is a defense to injurious falsehood as with any intentional tort. (See supra,
§100.)
b. Truth [§1703]
The falsity of the disparagement is an element of the prima facie case to be proved
by the plaintiff. Hence, it is not necessary to consider truth as a defense, because
unless the matter is shown to be false, the plaintiff has not proved a prima facie case.
[Rest. 2d §634]
c. Privilege [§1704]
The same privileges to defamation are recognized as privileges to disparagement
(see supra, §§1453 et seq.). [Rest. 2d §§635, 646A]
(1) Judicial proceedings [§1705]
The recording of a “lis pendens” (notice of lawsuit pending that may affect title
to property) in the county recorder’s office, which may cloud title to real
property, is treated as part of the judicial proceeding and hence is absolutely
privileged. [See, e.g., Zamarello v. Yale, 514 P.2d 228 (Alaska 1973)]
(a) But note
If this is done maliciously, an action for malicious proceedings may lie (see
infra, §§1778-1786).
(2) Protection of private interests [§1706]
A privilege of particular importance in disparagement cases is the conditional
privilege to defame or disparage in protecting one’s own interests or the interests
of another.
(a) Privilege of competitors [§1707]
If the defendant and the plaintiff are competitors, the defendant is privileged
to make general claims about his own product, even if false. However, the
privilege does not extend to making specific false claims about the plaintiff’s
property or business. [Rest. 2d §649]
Example: D is privileged to claim that his product is “finer,” of “higher
quality” or performs “better than” P’s—even if D does not honestly
believe what he is saying. This is similar to the “puffing” discussed supra,
§1648.
Compare: There is no privilege if D falsely states that P’s goods are

“seconds,” or “prison-made,” or contain impurities. [See, e.g., National
Refining Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763 (8th Cir. 1927)]
382
(b) Noncompetitors [§1708]

If the defendant and the plaintiff are not competitors, the defendant is
generally protected if he honestly believes the truth of his statement and was
speaking in any of the situations in which defamation would afford a
privilege (e.g., response to inquiry, protection of others, etc.). [Rest. 2d
§646A]
Examples: Reports by a consumers’ research organization commenting
on new products on the market, or by doctors evaluating new drugs, are
uniformly held to be privileged if made in good faith.
1) Constitutional protection [§1709]
The constitutional privileges of libel law may apply here by analogy. [See
Bose Corp. v. Consumers Union, supra, §1529]
C. Interference with Economic Relations

Tort liability has also been imposed for intentional interference with the plaintiff’s
existing or prospective economic relationship with third persons, thereby protecting the
plaintiff’s interest in stabilizing his contract relations and expectations. Note that this is an
area of still-emerging principles; most of the cases are of recent origin, reflecting
development of social and economic policies in these areas. Recently, negligence
principles have begun to emerge in specific situations. The two generally recognized
facets of this theory of liability are: interference with contract and interference with
prospective advantage.
2. Interference with Contract [§1711]

Prima facie case:
• Defendant’s Interference with Existing Contract
• Intent
• Causation
• Special Damages
383
a. Nature of contract [§1712]

This tort was first recognized in the master-servant relationship; i.e., a third person
who induced a servant to quit the master’s employ might be held liable to the master
in tort for loss of the servant’s services. In the leading case of Lumley v. Gye, 118
Eng. Rep. 749 (1853), the doctrine was expanded to hold a defendant liable for
inducing an opera star to breach her contract to sing at a particular opera house.
Today, the tort can apply to any type of valid contract (except contracts to marry—
as to which there generally is no tort liability for inducing breach). [See, e.g., Brown
v. Glickstein, 107 N.E.2d 267 (Ill. 1952); Kenty v. Transamerica Premium
Insurance Co., 650 N.E.2d 863 (Ohio 1995)—recognizing action against insurer;
Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175 (Pa. 1978)—
action by company against former employees seeking to enjoin them from luring
away company’s clients]
(1) Illegal contracts [§1713]
Contracts that are illegal or contrary to public policy do not qualify for protection
because the law will not aid in upholding them. [See, e.g., Fairbanks, Morse &
Co. v. Texas Electric Service Co., 63 F.2d 702 (5th Cir. 1933)—contract
violative of antitrust laws]
(2) Unenforceable contracts [§1714]
However, the original contract need not have been enforceable by the plaintiff
(or against him). The gist of the tort is the interference with the existing
relationship—not the contract.
Example: Tort liability has been imposed even where the original contract
was unenforceable because of the Statute of Frauds, lack of consideration,
lack of mutuality, or even uncertainty as to its terms. [See, e.g., Childress v.
Abeles, 84 S.E.2d 176 (N.C. 1954)]
(a) But note
A few courts refuse to protect some of these contracts. [See, e.g., Guard-
Life Corp. v. S. Parker Hardware Manufacturing Corp., 50 N.Y.2d 183
(1980)—refusing to protect unenforceable exclusive dealership relation;
Travel Masters, Inc. v. Star Tours, Inc., 827 S.W.2d 830 (Tex. 1991)—
covenant not to compete cannot form the basis of a tortious interference
with contract claim if covenant was unenforceable]
(3) Contracts terminable at will [§1715]
Although some authorities refuse to impose tort liability for interfering with
contracts that are terminable by either party at will, the general view is contrary.
It is the relationship (rather than the particular contract) that is being interfered
with, and the relationship might have continued but for the defendant’s conduct.
[See, e.g., Childress v. Abeles, supra; Sterner v. Marathon Oil Co., 767
S.W.2d 686 (Tex. 1989)]
384
(a) Note
The possibility of termination does bear upon the issue of the damages
sustained, as well as the issue of defendant’s privilege to interfere (see
below). [Scott v. Prudential Outfitting Co., 92 Misc. 195 (1915)]
b. Defendant’s interference [§1716]

The defendant must play some active role in causing the interference. For example,
it is not enough that the defendant accepted an offer from the party with whom the
plaintiff had been dealing, even if the defendant had knowledge of the plaintiff’s
relationship with that party. [Rest. 2d §766]
(1) Breach not required [§1717]
Note that the defendant does not have to be shown to have induced a breach of
the plaintiff’s contract. All that must appear is that the defendant has prevented
performance or made the performance more difficult and onerous.
Examples: D deliberately damages a highway that P is under contract to
maintain and repair; D prevents X from performing his contract to supply P
with goods by calling a strike among X’s workers; D threatens P’s employees
with bodily harm if they continue working for P. [See Snow v. West, 440 P.2d
864 (Or. 1968)]
(2) Collective action [§1718]
A difficult case is the effect of concerted action by a number of individuals to do
that which any one of them might be free to do alone (e.g., refusal to deal,
boycotts, etc.). This is the crux of the problem in collective refusals on the part
of labor unions or trade associations to deal with the plaintiff, resulting in strikes,
etc. (See Labor Law Summary.)
(3) Whether defendant may be a party
(a) General rule—party not liable [§1719]
No action for interference with contract lies against a party to that contract.
[See, e.g., Morrow v. L.A. Goldschmidt Associates, 492 N.E.2d 181 (Ill.
1986)]
(b) Exceptions
1) Officer acting on own behalf [§1720]
A corporate officer acting for his own benefit may be liable for inducing
the corporation to breach its contract with the plaintiff. [See, e.g.,
Olympic Fish Products, Inc. v. Lloyd, 611 P.2d 737 (Wash. 1980)]
385
2) Minority allows action for tortious breach of contract [§1721]

A few states permit one party to a contract to sue the other party in tort
for a breach motivated by some interest other than the contract
relationship, such as to help the defendant acquire a competitive benefit
over the plaintiff in some other matter. [See Charles v. Onondaga
Community College, 69 A.D.2d 144 (1979)]
a) Parties in fiduciary relationship [§1722]
Some states recognize a tort action for breach of implied covenant of
good faith and fair dealing where there is a special relationship
between the contracting parties, such as where an insurer
unreasonably withholds payments from the insured [Gruenberg v.
Aetna Insurance Co., 9 Cal. 3d 566 (1973)]; or where an employer
unreasonably withholds monthly payments from an elderly employee
[Wallis v. Superior Court, 160 Cal. App. 3d 1109 (1984)]. Other
states, however, disagree and will award damages only for breach of
contract, even where there is a fiduciary relationship between the
parties. [See, e.g., Farris v. United States Fidelity & Guaranty
Co., 587 P.2d 1015 (Or. 1978)]
3) Majority allows suit for wrongful discharge [§1723]
The modern and majority view is that a tort action lies for discharging
the plaintiff for an improper reason even though the hiring was at will.
[See, e.g., Mapco, Inc. v. Payne, 812 S.W.2d 483 (Ark. 1991)—
employer liable for refusing to rehire employee after she filed for
workers’ compensation against employer; Tameny v. Atlantic Richfield
Co., 27 Cal. 3d 167 (1980)—firing P for refusal to participate in illegal
price fixing scheme is actionable; Gardner v. Loomis Armored Inc.,
913 P.2d 377 (Wash. 1996)—employer could not terminate at-will driver
of armored car who violated company policy by leaving car to save
woman from life-threatening hostage situation; but see DeMarco v.
Publix Super Markets, Inc., 384 So. 2d 1253 (Fla. 1980)—firing P
because a relative filed a personal injury suit against D is not actionable]
c. Intent [§1724]
It must be shown that the defendant acted with an awareness of the existing contract,
and that she intended to cause the interference that proximately resulted from her
conduct. The cases have refused to impose liability for mere negligent interference
with contractual relationships. [See, e.g., Robins Dry Dock & Repair Co. v. Flint,
275 U.S. 303 (1927)]
(1) Master-servant cases [§1725]
Although at common law, a master could recover for loss of the services of
386
his servant if the servant had been injured by the defendant’s negligence, most
courts have rejected such an action. [See, e.g., Hartridge v. State Farm
Mutual Automobile Insurance Co., 271 N.W.2d 598 (Wis. 1978)—clinic has
no action for loss it suffered when its employee was negligently injured]
d. Causation and damages [§1726]

There is the usual requirement of actual and proximate causation and damages.
(1) Types of damages recoverable [§1727]
The modern view seems to allow recovery for all actual damages, consequential
damages (unforeseen expenses), mental suffering, damage to reputation, and
punitive damages in appropriate cases. [See, e.g., D’Andrea v. Calcagni, 723
A.2d 276 (R.I. 1999)]
(2) Offset recovery for breach of contract [§1728]
The fact that the plaintiff may have an action against the party who breaches the
contract does not bar the plaintiff’s claim against the defendant for inducing the
breach. The two are joint wrongdoers, and each may be liable for the loss (the
defendant may be liable in tort, and the other in contract). However, any
recovery against the breaching party must be offset against the damages
recoverable from the defendant who induced the breach.
e. Defenses—privilege [§1729]
The principal defense to this tort is one of privilege; i.e., the defendant will not be
liable if there was proper justification for the interference and only reasonable
methods were employed. This requires proof that both the ends and the means
were justifiable.
(1) Ends [§1730]
The privilege may arise from acts undertaken for a social good or to protect the
defendant’s own interests.
(a) Furtherance of nonpersonal interests [§1731]
Claims of privilege are generally upheld if the defendant was acting for a
social good (e.g., D attempts to exclude a diseased youngster from school
that her child attends), or to protect a third person’s interest (e.g., attorney’s
sincere advice to client not to deal with plaintiff). [See, e.g., Southwestern
Bell Telephone Co. v. John Carlo Texas, Inc., 843 S.W.2d 470 (Tex.
1992)]
1) Mixed motive does not defeat privilege [§1732]
The defendant’s privilege is not defeated where part of the defendant’s
motive for interference with the plaintiff’s contractual
387
relations is personal ill will, if the predominant motive is a legitimate

safety concern. [See, e.g., Hatten v. Union Oil Co., 778 P.2d 1150
(Alaska 1989)]
(b) Furtherance of defendant’s own financial interest [§1733]
If the defendant is acting to further her own interests, any claim of privilege
will turn on whether she is seeking to protect existing economic interests or
merely a prospective advantage.
1) Protecting present interest [§1734]
If the defendant has a present contract of her own with one of the
parties, she is privileged to prevent the performance of another contract
that threatens hers.
Example: If D induces debtor X to pay off the bills owed to D,
thereby rendering X unable to perform X’s contract with P, D is not
liable for inducing breach of the P-X contract. [Personal Preference
Video, Inc. v. Home Box Office, Inc., 986 F.2d 110 (5th Cir. 1993)]
2) Protecting prospective advantage [§1735]
On the other hand, if the defendant has no existing relationship with
either of the contracting parties and induces the breach solely to further
her own business (e.g., hiring away plaintiff’s best employees, inducing
plaintiff’s suppliers not to supply, etc.), the defendant’s purpose is not
protected and generally no privilege is recognized.
a) Exception—contracts terminable at will [§1736]
The privilege to compete (and of employees to better
themselves, etc.) takes precedence over the expectancy that an
at-will contract will continue. Therefore, courts generally hold
that one competitor is privileged to induce third persons
(employees, suppliers, customers) to terminate contracts that
they had with a competitor where such contracts were
terminable at will. [See, e.g., Diodes, Inc. v. Franzen, 260 Cal.
App. 2d 244 (1968)]
(2) Means [§1737]
Even if the interference is for a justifiable purpose, the defendant is never
privileged to use unethical or wrongful means. Thus, violence, lies, bribery, or
extortion will defeat the privilege.
(a) Threats of “economic persuasion” [§1738]
Difficult cases involve threats of “economic persuasion”—e.g., where
388
D threatens that she will not deal with X unless X severs all dealings with P.
Such cases are generally analyzed on their own facts; i.e., the more
unreasonable and coercive the threat is under the circumstances, the more
likely that it will defeat the privilege.
(b) Other torts [§1739]
If improper means are in fact used, always consider the possibility of other
tort liability.
Example: If D induces X to discontinue dealing with P because “P’s
business is run by organized crime,” D may be liable for defamation and
injurious falsehood, as well as wrongful interference with P’s contractual
relations.
Although most courts have held that the defendant must establish a proper
justification for the challenged behavior [Sterner v. Marathon Oil Co., supra,
§1715], most courts have also held that the plaintiff must allege and prove that
the defendant’s conduct was “wrongful” by showing more than only the
interference itself [Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.
4th 376 (1995)].
3. Intentional Interference with Prospective Economic Advantage [§1741]

By analogy to interference with existing contractual relations, tort liability has been
imposed for intentional interference with prospective economic advantage—i.e., where
there is no existing contract. [See, e.g., Los Angeles Airways, Inc. v. Davis, 687 F.2d
321 (9th Cir. 1982)] The right being protected is the right to pursue business without
unjustifiable interference. [Printing Mart-Morristown v. Sharp Electronics Corp., 563
A.2d 31 (N.J. 1989)—tampering with bidding process so that plaintiff would not be
awarded contract]
a. Prima facie case [§1742]

The prima facie case is virtually the same as with interference with contract (see
supra, §1711), except that no existing contractual relationship need be shown.
(1) Defendant’s act [§1743]
The interfering act consists of (i) inducing a third party not to enter into a
prospective relationship with the plaintiff, or (ii) preventing the plaintiff from
acquiring the prospective relationship. [Rest. 2d §766B] States disagree about
whether the plaintiff must show that the interference was “wrongful” in addition
to showing the interference itself. The modern view requires such a showing.
[Della Penna v. Toyota Motor Sales, U.S.A., Inc., supra]
(2) Defendant not a party [§1744]
As with interference with contract, the defendant need not be a party to the
prospective economic relationship.
389
Example: An employee, acting to undermine the prospective relationship

between his employer and the plaintiff, may be liable. [See Printing Mart-
Morristown v. Sharp Electronics Corp., supra—deferring question]
b. Privilege [§1745]
The chief difference between actions for interference with prospective advantage and
interference with contract lies in recognition of more extensive privileges where the
parties are competitors and there is no contract. (To the extent that courts insist that
the plaintiff show an independent wrong as part of the prima facie case, supra,
§1742, the role of privilege is reduced.)
Example: D is privileged to use any bona fide competitive means to solicit
customers for herself before they enter into a contract with P.
(1) Loss of privilege [§1746]
As before, to the extent that the defendant uses unlawful or tortious means, she
loses the privilege—and may be liable for unfair competition (see Remedies
Summary). [See, e.g., Tuttle v. Buck, 119 N.W. 946 (Minn. 1909)]
(a) Exception—testimony [§1747]
A special rule protects perjurers whose lies under oath are intended to and
do cause harm to the plaintiff. To encourage witnesses to testify and to do
so fully, they are absolutely protected against suits by unhappy litigants.
[See, e.g., Cooper v. Parker-Hughey, 894 P.2d 1096 (Okla. 1995)]
c. Distinguish—interference with noncommercial expectancies (prospective gifts,

etc.) [§1748]
The modern trend is to allow recovery for wrongful interference with noncommercial
expectancies—at least where there is a strong probability that they would have been
realized. [Rest. 2d §774B]
Example: Tort recovery has been allowed where D, by use of fraud, induces a
testator to disinherit P—if there is strong evidence that the testator otherwise
would not have done so. [See, e.g., Bohannon v. Wachovia Bank & Trust Co.,
188 S.E. 390 (N.C. 1936)] The falsehood may either attack P or enhance D.
(1) Action survives prospective donor’s death [§1749]
If the defendant fraudulently causes a donor to convey property to the
defendant, and the donor intended the plaintiff to be a legatee of that property,
the plaintiff may sue the defendant for wrongful interference with his intended
legacy whether or not the donor is still alive. [See, e.g., Plimpton v. Gerrard,
668 A.2d 882 (Me. 1995)]
390
(2) No liability for interference with contest [§1750]

Courts have refused to impose liability for interference in the context of sporting
contests, such as horse racing. In addition to the difficulty of establishing a
reasonable probability of winning, these sports are governed by other regulatory
bodies, and allowance of claims would flood the courts with disgruntled losers.
[See, e.g., Youst v. Longo, 43 Cal. 3d 64 (1987)—no recovery against jockey
who caused plaintiff’s horse to break stride during race]
4. Negligent Interference with Prospective Economic Advantage [§1751]

Prima facie case:
• Duty of Due Care
• Breach of Duty
• Causation
• Damages
a. Duty [§1752]
Duty is the crucial issue. Generally, the plaintiff’s interest in protection from
economic harm has been considered too remote for the imposition of a duty of due
care. [See Robins Dry Dock & Repair Co. v. Flint, supra, §1724]
(1) Distinguish—misrepresentation [§1753]
If the defendant’s negligence has taken the form of misrepresentation upon
which the plaintiff has relied, courts have imposed a duty on the defendants who
are in the business of supplying information. (See supra, §1656.) Even there,
however, the courts impose limits based on the nature of the transaction and the
foreseeability that the plaintiff would rely. (See supra, §§1657, 1659 et seq.)
(2) Modern trend [§1754]
Because the defendant’s negligence may cause economic harm to the plaintiff
even though the plaintiff has never met or relied on the defendant, some courts
are imposing a duty of care where the defendant can reasonably foresee harm to
the specific plaintiff. [See, e.g., Simpson v. Calivas, 650 A.2d 318 (N.H. 1994)
—attorney cost P an inheritance by preparing T’s will improperly]
(a) Attorney liability [§1755]
Most courts hold that attorneys may owe duties of due care to persons other
than their clients in a negotiated deal. [See, e.g., Prudential Insurance Co.
v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377 (1992);
but see Goodman v. Kennedy, 18 Cal. 3d 335 (1976)—attorney must
provide undiluted advice to client and should not incur any duties toward
those with whom client is dealing, even though they are identified]
391
(3) Limitation [§1756]

As in the professional cases (supra, §1663), courts here are concerned about
extending a general duty of care to a large undefined group of plaintiffs. The
result is the denial of a duty of care unless the defendant knows that her conduct
will affect a pinpointed plaintiff. [See, e.g., In re Kinsman Transit Co. (No. 2),
388 F.2d 821 (2d Cir. 1968)—no liability after river accident to those who
sustained solely economic burdens because damaged bridge made commercial
activities more expensive; Phoenix Professional Hockey Club, Inc. v. Hirmer,
502 P.2d 164 (Ariz. 1972)—no liability on negligent driver who cost P money by
running over P’s hockey goalie; Milliken & Co. v. Consolidated Edison Co.,
84 N.Y.2d 469 (1994)—tenant lacking direct contractual relation with utility
could not sue for economic losses suffered due to utility’s negligence; but see
Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir. 1974)—commercial fishermen
may recover for income loss caused by D’s oil spill; People Express Airlines,
Inc. v. Consolidated Rail Corp., supra, §789—airline may recover for damage
caused by evacuation of terminal due to D’s negligence]
b. Other elements [§1757]

Once duty is found, the other elements are analyzed as in regular negligence cases
(see supra, §§276 et seq.). This may include the need for expert testimony to
establish breach. [Jim Mitchell & Jed Davis, P.A. v. Jackson, 627 A.2d 1014 (Me.
1993), cert. denied, 510 U.S. 1081 (1994)—need expert where attorney refused to
file complaint without having proof to support it]
D. Unjustifiable Litigation
Unjustifiable litigation includes several distinct torts involving the plaintiff’s interest in
freedom from unjustifiable legal proceedings.
2. Malicious Prosecution [§1759]

The tort of malicious prosecution concerns the wrongful institution of criminal
proceedings by one private citizen against another, resulting in damage. Prima facie case:
• Instigation of Criminal Proceedings by Defendant
• Proceedings Terminated Showing Plaintiff Not Guilty
• Lack of Probable Cause
• Improper Purpose
a. Distinguish—false imprisonment [§1760]

Malicious prosecution must be distinguished from false imprisonment in several
392
particulars. False imprisonment lies only where the arrest is “false”—in the sense
that there was no valid process for the arrest (i.e., no valid arrest warrant or no
probable cause to arrest without a warrant). On the other hand, malicious prosecution
lies where there has been a valid arrest but an improper purpose in instigating the
criminal proceeding (e.g., groundless charges by the defendant to the police, leading
them to arrest the plaintiff). Furthermore, false imprisonment does not require any
showing of malice or lack of probable cause to believe that the charges against the
plaintiff are true; but these are essential elements of malicious prosecution.
b. Instigation of proceedings by defendant [§1761]

Criminal proceedings must be initiated by a charge made to the police or other public
officials in such form as to cause the issuance of a warrant or indictment against the
accused.
(1) Procuring another to institute proceedings [§1762]
One who procures or is instrumental in causing a third person (police) to institute
a prosecution is liable just as if he instituted it himself. [Rest. 2d §653]
(2) Distinguish—merely providing information [§1763]
But one who provides full and truthful incriminating information to a public
officer and leaves the decision to that officer has not initiated the proceeding.
[McHale v. W.B.S. Corp., 446 A.2d 815 (Conn. 1982)]
c. Proceedings terminated favorably to plaintiff [§1764]

A plaintiff must allege and prove that the criminal proceeding was terminated in a
manner indicating his innocence.
(1) Decisive termination [§1765]
This generally requires some sort of a decisive termination—e.g., acquittal after
trial, dismissal of the case by a magistrate at the preliminary hearing for lack of
evidence, grand jury refusal to indict, etc. Conversely, a termination that is
indecisive or consistent with guilt is not sufficient—e.g., where the proceeding is
dismissed on technical, procedural grounds or as an act of grace; or because of
the impossibility of bringing the accused to trial; or a plea bargain. [Rest. 2d
§660; see, e.g., Swick v. Liautaud, 662
393
N.E.2d 1238 (Ill. 1996)—because dismissal of criminal case on nolle prosequi is

ambiguous, plaintiff must show favorable termination; Ward v. Silverberg, 85
N.Y.2d 993 (1995)—termination in criminal defendant’s favor where charges
dismissed “on consent” after colloquy between court and counsel]
d. Lack of probable cause [§1766]

The plaintiff must also show that the defendant instituted the proceedings without
probable cause—i.e., that the defendant had no honest and reasonable belief in the
truth of the charge.
(1) Objective standard [§1767]
Attorneys are not liable for malicious prosecution if they pursued a claim that a
reasonable attorney would have considered tenable. Courts use this standard to
avoid the chilling effect on reporting crime or bringing a civil claim that would
follow from the use of a subjective standard. [See, e.g., Sheldon Appel Co. v.
Albert & Oliker, 47 Cal. 3d 863 (1989)]
(2) Proof—cannot be inferred from improper purpose [§1768]
Lack of probable cause must be proved independently from the improper
purpose requirement (below), because even a person acting from improper
motives may know of facts that give rise to a reasonable and honest belief of
guilt.
(3) Application [§1769]
Because of its complex nature, the question of probable cause is usually decided
by the court. [Rest. 2d 673(1)(c); see, e.g., Slade v. City of Phoenix, 541 P.2d
550 (Ariz. 1975); but see Hodges v. Gibson Products Co., 811 P.2d 151 (Utah
1991)—contra]
(a) Effect of indictment or commitment by magistrate [§1770]
The fact that the plaintiff was held to answer by the committing magistrate
after a preliminary hearing, or was indicted by a grand jury, is prima facie
evidence of probable cause. [Rest. 2d §663; see, e.g., Colon v. City of
New York, 60 N.Y.2d 78 (1983)—indictment creates presumption of
probable cause rebuttable only by showing fraud, perjury, or suppression of
evidence]
(b) Effect of conviction [§1771]
Where the plaintiff was actually convicted without fraud, perjury, or other
corruption, probable cause is conclusively established—even if the
conviction is later overturned on appeal. Rationale: If a jury or trial judge
was satisfied of guilt beyond a reasonable doubt, it can hardly be denied that
the accuser had reasonable grounds in making the charges. [See, e.g.,
Hanson v. City of Snohomish, 852 P.2d 295 (Wash. 1993)]
394
1) But note
A minority view treats the conviction as creating only a presumption of
probable cause. [See, e.g., MacRae v. Brant, 230 A.2d 753 (N.H.
1967)]
(c) Effect of advice of counsel [§1772]
Reliance on advice of counsel will also conclusively establish probable
cause, provided there was a full disclosure of the facts to the attorney and a
resulting honest belief in the guilt of the injured party. [Rest. 2d §666; see,
e.g., Boshell v. Walker County Sheriff, 598 So. 2d 843 (Ala. 1992);
Kaarup v. St. Paul Fire & Marine Insurance Co., 485 N.W.2d 802 (S.D.
1992)]
e. Improper purpose [§1773]

It must appear that the defendant instituted the proceeding for some improper
purpose, some motive other than bringing a guilty person to justice. This is
sometimes called “malice.”
(1) Proof—can be inferred from lack of probable cause [§1774]
Although lack of probable cause cannot be inferred from improper purpose,
improper purpose may be inferred from lack of probable cause. [Rest. 2d §669]
f. Causation and damages [§1775]

The plaintiff may recover all expenses incurred in defending against the criminal
prosecution (e.g., attorney’s fees, investigative expenses, court costs, etc.). The
plaintiff may also recover damages for mental suffering and embarrassment, harm to
reputation, damage to business, etc., as well as punitive damages in appropriate
cases.
g. Defenses
(1) Plaintiff’s guilt [§1776]
Notwithstanding the termination of criminal proceedings favorable to the
plaintiff, the defendant may show as a defense that the plaintiff really was guilty
of the crime. The acquittal in the criminal proceedings only establishes that the
state could not prove the plaintiff’s guilt “beyond a reasonable doubt,” whereas
in the civil tort proceedings, the standard of proof is only a “preponderance of
the evidence.” [See, e.g., Shoemaker v. Selnes, 349 P.2d 473 (Or. 1960); Rest.
2d §657]
395
(2) Privilege [§1777]

Judges, prosecutors, and various other law enforcement officers are absolutely
privileged and immune from charges of malicious prosecution.
3. Malicious Institution of Civil Proceedings [§1778]

Many states extend the concept of malicious prosecution to civil proceedings as well.
The basic elements are the same as those in actions based on malicious criminal
proceedings, and the same types of damages may be recovered. [See, e.g., Cisson v.
Pickens Savings & Loan Association, 186 S.E.2d 822 (S.C. 1972)] However, a large
minority rejects this action in order to encourage resort to the courts to settle disputes.
a. Nature of proceedings [§1779]

The tort extends to any form of noncriminal proceedings—including administrative
hearings, insanity or narcotics commitment proceedings, etc.
(1) Lis pendens [§1780]
An action may be maintained for malicious institution of civil proceedings where
the damage complained of results solely from the recordation of a lis pendens
(notice of lawsuit pending that may affect title to property)—even though the
notice itself would be absolutely privileged insofar as slander of title is
concerned (see supra, §1705).
(2) Small claims proceeding [§1781]
A small claims court proceeding, even if maliciously instituted, may not be the
basis of a suit. Such proceedings are too inexpensive and informal to cause any
real damage. [See, e.g., Pace v. Hillcrest Motor Co., 101 Cal. App. 3d 476
(1980)]
(3) Governmental entity may not maintain action [§1782]
Governmental units may not be plaintiffs in this type of case after successfully
defending a false arrest claim. [See, e.g., City of Long Beach v. Bozek, 31 Cal.
3d 527 (1982)—absolute privilege to seek redress against government]
b. Effect of prior verdict [§1783]

Unlike the criminal acquittal in malicious prosecution cases (see above), a verdict for
the plaintiff in the prior civil proceedings cannot be questioned in a subsequent action
for malicious institution of those proceedings; i.e., all material issues decided in the
first suit are res judicata between the parties.
c. Application—countersuits by physicians following malpractice actions [§1784]

The most recent use of the malicious prosecution theory in civil cases has occurred in
suits brought by physicians who have successfully defended malpractice actions.
Virtually all such claims against patients and their attorneys have failed, some because
the state rejects the action, others because lack of probable cause is much harder to
prove in civil cases than in criminal cases. [See, e.g., Carroll v. Kalar, 545 P.2d 411
(Ariz. 1976)]
396
d. Causation and damages [§1785]

The same causation rules apply as in the case of criminal prosecutions.
(1) Minority rule [§1786]
A minority of states hold that to recover when the unfounded case was a civil
suit, the plaintiff must show special damages to person or property. Under this
view, there is no claim when the plaintiff seeks to recover only attorney’s fees.
[Johnson v. Calado, 464 N.W.2d 647 (Wis. 1991)] However, special damages
may include defense costs if a large number of suits are brought concurrently or
consecutively. [See, e.g., Cult Awareness Network v. Church of Scientology
International, 685 N.E.2d 1347 (Ill. 1997)]
4. Malicious Defense [§1787]

A few states have recognized that a defendant’s behavior in raising totally unjustified
defenses may cause plaintiffs the same sort of harm that is produced by unjustified
complaints. These states have created an action for malicious defense that mirrors the
action for malicious institution of civil proceedings (supra). [See, e.g., Aranson v.
Schroeder, 671 A.2d 1023 (N.H. 1995)]
5. Spoliation of Evidence [§1788]

Some parties, rather than raising unjustifiable legal arguments, have sought to affect legal
outcomes by hiding or destroying adverse evidence. Courts confronted with this conduct
have generally created a new action for such destruction. [See, e.g., Coleman v. Eddy
Potash, Inc., 905 P.2d 185 (N.M. 1995)—claim that employer D deliberately failed to
preserve evidence crucial to P’s action against a third party states claim for intentional
spoliation by alleging (i) existence of a potential lawsuit; (ii) D’s knowledge of it; (iii)
destruction, mutilation, or substantial alteration of evidence; (iv) D’s intent to disrupt or
defeat the lawsuit; (v) a causal connection between the act and the inability to prove the
lawsuit; and (vi) damages]
a. Intentional spoliation during litigation [§1789]

Although some courts allow a party to sue another party in litigation for destroying
evidence, others conclude that this can adequately be handled by sanctions without
the need to create a new tort action. [See, e.g., Cedars-Sinai Medical Center v.
Superior Court, 18 Cal. 4th 1 (1998)—no claim where spoliation discovered or
reasonably discoverable during underlying litigation] Where third parties are
concerned, however, sanctions will not deter them, so most courts have been
persuaded to create actions. [See, e.g., Oliver v. Stimson Lumber Co., 993 P.2d 11
(Mont. 1999); but see Temple Community Hospital v. Superior Court, 20 Cal.
4th 464 (1999)—rejecting actions for spoliation, whether intentional or negligent,
against any third party]
b. Negligent spoliation [§1790]

Occasionally the loss of the evidence is alleged to have resulted from negligence. In
such cases, courts generally require some special circumstance (contract, agreement,
or statute) to create a duty on the defendant to take care to preserve the evidence.
[Coleman v. Eddy Potash, Inc., supra—allegation that D “knew or should
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have reasonably anticipated that” future litigation would occur does not impose duty
to take due care to preserve such evidence]
6. Abuse of Process [§1791]

Abuse of process is a narrow tort committed by the misuse of process—civil or criminal
—for some ulterior purpose. This means simply that defendant intentionally employed
some court process (e.g., attachment, execution, injunction, etc.) for a purpose other
than that for which the process was designed. [Rest. 2d §682]
a. Prima facie case [§1792]

The prima facie case is made simply by showing an intentional misuse of process
and resulting damage to the plaintiff. [See, e.g., Yaklevich v. Kemp, Schaeffer &
Rowe Co., 626 N.E.2d 115 (Ohio 1994)—recognizing action]
Example: Attachment on property exempt from execution, or on an excessive
amount of P’s property, for the purpose of driving P into bankruptcy or forcing
him to settle or dismiss his claims against D, is actionable as abuse of process.
[White Lighting Co. v. Wolfson, 68 Cal. 2d 336 (1968)]
Example: A husband is guilty of abusing process in causing the sheriff to levy

attachment on his wife’s car, where it appeared this was done to harass her and
pressure her to settle a pending divorce action. [Spellens v. Spellens, 49 Cal. 2d 210
(1957)]
(1) No showing of lack of probable cause [§1793]
Unlike the previous torts, the plaintiff does not have to show that the defendant
lacked probable cause.
(2) No showing of favorable result [§1794]
Neither does the plaintiff have to show that the proceedings were terminated in
his favor.
(3) Counterclaim [§1795]
In fact, where A has abused process in connection with an action instituted by
him against B, B may counterclaim in the same action for damages arising
from the abuse. [White Lighting Co. v. Wolfson, supra]
b. Who may sue [§1796]

The tort action may be maintained not merely by the other party to the abusive
proceedings, but also by any third person whose property is injured thereby.
Example: If D files suit against T, and to coerce payment causes an attachment
to be levied against property owned by T’s parents, D may be liable to the
parents for abuse of process. [Templeton Feed & Grain v. Ralston Purina Co., 69
Cal. 2d 461 (1968)]
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Review Questions and Answers
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Exam Questions and Answers
475
QUESTION I
Adam, a retired merchant, was driving his car in a careful manner when suddenly it swerved
to the left across the center line and crashed into Brenda’s parked car. Brenda had parked in
the wrong direction on the left-hand side of the street in violation of a local ordinance. Just
prior to the accident, Adam had taken his car for repairs to Smith’s Garage. The car swerved
because Smith had negligently assembled the steering apparatus after working on the car. As
a result of the collision, both cars were badly damaged, Adam received a severe blow on the
head, and a bottle of liquor that Adam had purchased fell from the seat and broke.
While extricating himself from his car, Adam felt and acted distinctly groggy because of the
blow to his head. Brenda, drawn from her house by the noise, smelled the odor of whiskey
occasioned by the broken liquor bottle, noted Adam’s groggy behavior, and assumed Adam
was intoxicated. In the presence of a group of persons who had gathered, she said, “I’ll take
this drunk to the police station.” Then, despite Adam’s protestations, she grabbed Adam by
the arm and forcibly compelled him to go to the police station a block away. There Adam
was examined by a physician and pronounced sober. He was released approximately a half
hour after the accident had occurred.
Adam was greatly humiliated both by Brenda’s reference to him as a drunkard and by his
being compelled to go to the police station at Brenda’s insistence, but he suffered no special
damages on that account.
What are the rights of the various parties? Discuss.
QUESTION II
Tom, Bill, and Harry were riding in Tom’s convertible bound for a football game. Tom was
driving, Bill agreed to pay for the gasoline, and Harry purchased all three tickets as his
contribution to the excursion. Due to the joint negligence of Tom and one Smith, who was
driving his sedan, an accident occurred. As a result of the collision, the two cars were
damaged and both Bill and Harry were injured.
After the accident, Tom and Smith became engaged in a heated argument as to who was
responsible for the collision. Finally, Smith challenged Tom to a fight, Tom accepted the
challenge, and both men removed their coats and proceeded to fight. They stopped only
after Smith had knocked out two of Tom’s front teeth. At that point, a reporter for the
Evening Chronicle arrived at the scene and snapped a picture showing Tom bleeding at the
mouth and holding a tooth in his hand. Realizing he had been photographed in this
embarrassing position, Tom turned to the reporter and said, “I don’t want you to publish that
picture.” Nonetheless, the picture was published in the Evening Chronicle along with an
appropriate news item.
In due course, Tom had Dr. Todd, a reputable dentist, perform the necessary dental work
and sent the dentist’s bill to Smith, demanding payment. Smith replied by letter saying, “I
476
won’t pay this bill, and besides, I’m surprised that you would go to such a quack dentist as
Dr. Todd.” Smith, when writing Tom, had in good faith confused Dr. Todd with Dr. Dott,
the latter being a truly disreputable dentist.
What are the rights and liabilities of the various parties? Discuss.
QUESTION III
Davis was the owner of a three-story brick building abutting the sidewalk. The first floor was
rented to a chiropodist who used it for an office and sometimes spent the night there. The
second floor was used by Davis himself as a storage space for his fine art collection. The
third floor was occupied by Tenet and his family as a dwelling.
Davis employed Wasser, a window cleaner, to clean the windows in the building, giving him
a belt attached to a stout rope with instructions to wear the belt around his waist and to tie
the other end of the rope to the radiators under the second and third floor windows while he
was cleaning them. Wasser neglected to do this, choosing instead to stand on the eight-inch
ledge below the windows, holding on to an awning hook with one hand while he washed the
windows with the other. While standing in this position outside the second floor window,
Wasser was startled when a lighted cigarette fell on his bald head from the apartment on the
third floor, where Tenet and his wife were entertaining guests at a cocktail party. Losing his
hold on the awning hook and thereafter his balance, Wasser fell to the sidewalk below and
was severely injured.
While the ambulance was taking Wasser to the hospital, Davis telephoned Mrs. Wasser, who
—to his knowledge—was seriously afflicted with heart trouble, to tell her that her husband
had fallen from the second floor and had been badly hurt. Mrs. Wasser fell over in a faint,
struck her head against a doorknob, and died a month later from the head injury.
A state statute required owners of “multiple-dwelling” buildings to provide “approved” safety
devices for window cleaners. The rope device provided by Davis had not been approved.
The devices that had been approved could not be used on Davis’s building because it lacked
the proper hooks in the wall; it would not have been as effective in preventing falls as the
rope and belt that Davis had supplied.
Discuss the rights of the parties. Assume that Wasser is not covered by workers’
compensation laws.
QUESTION IV
Nerv was an extremely nervous person. He discussed his problems with his friend Phil, a
licensed pharmacist who owned and operated a drugstore. Phil recommended “Dreamy,”
477
a new tranquilizer manufactured by Drugco that did not require a prescription. Dreamy had
been extensively tested by Drugco and four months previously had been approved for sale to
the public without prescription by the Federal Food and Drug Administration ([/“FDA”).
Nerv purchased a bottle of Dreamy and began taking it in accordance with the instructions.
The label on the bottle stated, “Normal dosage two pills every 12 hours—safe for adult use
—not habit-forming.”
The day after the purchase, Nerv took two Dreamy pills upon arising, had breakfast, and
then got in his car and headed for the golf course. While driving on a public street, Nerv
suddenly became dizzy and lost control of his car. The car swerved onto the sidewalk, hit
Ima, seriously injuring her, and then ran into a pole, seriously injuring Nerv.
Subsequent analysis revealed that Nerv’s dizziness was caused by an allergic reaction to
Dreamy, but that only five persons out of 10,000 would have such a reaction. None of this
had been discovered during the extensive premarketing tests that led to approval by the
FDA. It was also learned that during the four months since Dreamy was first marketed, two
other persons had reactions similar to those of Nerv, and Drugco had been so informed. As a
result, Drugco had conducted further tests and had ordered new labels that would contain
the following message: “CAUTION—Dizziness may result from normal dosage.”
What are the rights of Ima against Nerv and Drugco? Discuss.
What are the rights of Nerv against Phil and Drugco? Discuss.
QUESTION V
Mower Company (“Mower”) manufactures a 12-horsepower cub tractor with a riding seat
and a rotary cutter. The cutter is advertised as capable of cutting through brush with stalks
up to one inch in diameter. Park purchased one of Mower’s tractors from Retail Company
(“Retail”) on the condition that it could be returned anytime during the first week if it was
not performing properly. The entire price of $1,200 was paid at the time of delivery. Before
delivery, Retail inspected and serviced the vehicle.
During the first week, Park noted that the cutter would not cut through brush of slightly less
than one inch. When he used it over very rough terrain, he thought he noticed an increasing
vibration and that the cutter was cutting closer on one side than on the other. Because he
was enjoying its use, however, he made no attempt to return it to Retail. At the end of the
first month, the vibration increased considerably, but then the first snow came and the
tractor was put in the barn for the winter.
The following spring, Park got the tractor out to demonstrate it to a neighbor, Smith, who
was interested in the purchase of one. Smith, an amateur mechanic of considerable ability,
offered to fix the vibration by a simple adjustment of the nut that held the rotary
478
cutter. Smith adjusted the nut. Subsequently, each took turns driving the cutter over very
rough, stony, and brushy ground. The vibration continued but was not as great as before.
While Smith was riding the tractor, the rotary cutter came off, broke through its housing, and
severed the left foot of Park. The evidence showed a crack in the nut that held the cutter.
Park sued Mower and Retail for damages due to the tractor’s failure to cut one-inch brush,
for the damages to the equipment, and for his physical injuries.
What result? Discuss. Include in your discussion all possible theories of liability and defenses
available to Mower and Retail.
QUESTION VI
The four-story law school building of University, a private institution, had a defective
elevator that frequently stopped between floors. The elevator had an alarm button which, if
pressed, would ring a bell in the hallway and thus alert persons in the building to the fact that
the elevator had stopped between floors, with passengers inside it. The defective condition
did not create any danger that the elevator might fall or otherwise physically injure any
passenger.
Elco, an elevator maintenance company, had a contract with University to inspect, service,
and maintain the elevator.
One night, Prof, a law teacher, and his administrative assistant, Prim, had been working late
in Prof’s office on the fourth floor of the building on an overdue manuscript. They entered
the elevator to leave at about 11:20 p.m. The official closing hour for the building was 11
p.m., but there were exit doors from the building that could be opened from the inside. Both
Prof and Prim knew that the elevator frequently stopped between floors.
The elevator stopped between the second and third floors. Prof pressed the alarm button,
and the bell could be heard ringing in the hallway. Jones, a law student, was the only other
person still in the building. He heard the alarm bell and realized that someone was trapped in
the elevator. He thought this was very funny, and he deliberately did not call the campus
maintenance staff.
Prof and Prim were not discovered and released until 8 a.m. the next day.
Prof suffered from high blood pressure. This condition and his fright at being confined in the
elevator caused him to sustain a heart attack after two hours in the elevator.
Prim suffered severe nervous shock due to being confined in the elevator and her fear that
Prof was dying. She was subsequently embarrassed and humiliated by remarks of students
who suggested that perhaps some amorous activity in the elevator might have caused Prof’s
heart attack.
What rights do Prof and Prim each have against Jones, Elco, and University? Discuss.
479
QUESTION VII
Alana, while in a department store owned by Bernard, noticed a sign on the wall reading
“FREE—PLEASE TAKE ONE,” below which was a box of MP3 players. Alana put one of
the players in her pocket and walked out of the store. Bernard rushed out of the store after
Alana shouting, “Come back here with that player, you thief!” The street was crowded, and
Alana, humiliated by the accusation, eluded Bernard and ran home.
Later that day, Carla, a customer who resembled Alana, went into the restroom of Bernard’s
store. Bernard, thinking Carla was Alana, locked the restroom door and called the police.
There was an open window in the restroom. Carla mounted a chair, planning to climb out
the window. As she put her weight on the back of the chair, it tipped. Carla fell to the floor
and broke her leg.
Alana learned later that the “FREE—PLEASE TAKE ONE” sign referred to advertising
flyers that were usually beneath the sign and not to the MP3 players. She offered to return
the player, but Bernard refused to accept it.
Discuss the rights of Alana and Bernard against each other and the rights of Carla against
Bernard.
QUESTION VIII
Twenty years ago Resco erected a building in what was then an unsettled area. Resco
conducts experimental work in connection with cattle virus diseases in that building. The
area surrounding the Resco property has now become a thriving cattle and dairy district.
Cattle ranchers in the area tried to induce Zoe, a cattle auctioneer, to establish a local market.
Zoe was reluctant to do so because of her fear that a virus might escape from Resco’s
property and infect cattle.
Some of the ranchers called on Prex, the president of Resco. They told Prex of their desire
to establish a market in the area and asked him to make a statement that would dispel Zoe’s
fears.
Prex called a conference and, without having made any investigation and without naming
Zoe, stated that there was “no danger at all” of any virus escaping from the Resco premises,
and that only a “driveling idiot” could conclude otherwise. This statement was printed in the
News, a local newspaper, and received wide attention. As a result, Zoe was frequently
referred to in the community as a “driveling idiot.” This caused her considerable
embarrassment.
In the belief that Prex’s statement concerning the safety of the Resco operation was correct
and to escape further embarrassment, Zoe established a market in the area for the auction of
cattle. Shortly thereafter, without negligence on the part of Resco, a virus escaped from
Resco’s premises and infected cattle in the area.
480
To stop the spread of the infection, public authorities ordered the slaughter of all infected or
exposed cattle, and Zoe had to abandon her market with consequent financial loss to her.
What are Zoe’s rights against Resco? Prex? the News? Discuss all issues.
QUESTION IX
Transit operates buses in a city. One morning Driver, a Transit driver, awoke with a bad
cold. He consulted the yellow pages of the telephone directory and called Dr. Ard, a
physician listed under the category, “Physicians & Surgeons—M.D.—Eye, Ear, Nose &
Throat.” Driver told Dr. Ard that he had a bad cold and was scheduled to report for work at
noon that day. Dr. Ard listened to Driver describe his symptoms, said he could not give
Driver an appointment, and told him to buy a bottle of “Pyrib” at a drugstore and to use its
contents as directed on the label. Pyrib is a cold remedy antihistamine prepared and
marketed by Drugco. Driver obtained the Pyrib from a drugstore, took the first dosage called
for on the label, and reported for work at noon.
At 1:30 p.m. that day, while driving his bus, Driver felt drowsy. However, he continued
driving and shortly thereafter fell asleep. The bus jumped a curb and hit a pole. Pat, a paying
passenger on the bus, was injured.
Pyrib is known to cause drowsiness and sleep in about 20% of the persons who take it. Dr.
Ard did not warn Driver that the medication prescribed might cause drowsiness and sleep,
and the label on the bottle did not contain any such warning.
Discuss Pat’s rights against Drugco, Transit, and Dr. Ard.
QUESTION X
Twenty years ago, Phil worked in the research department of Bomm-Bay, a private
armaments manufacturer doing substantial business with the government. At that time, Phil
and his colleagues were testing a newly developed strain of bacteria for use in germ warfare.
From tests on animals, they found the agent to be effective, and it has since been
incorporated into weapons sold to the government. The strain of bacteria has never been
used in combat and has never been tested on humans. However, because of inadequate
safety mechanisms at Bomm-Bay’s laboratories, Phil was accidentally exposed to the
bacteria.
The exposure was very brief and Phil did not suffer immediate harm, but his health has
gradually deteriorated. It recently became so poor that he checked into a hospital. Doctors
quickly traced his maladies to the bacteria, but cannot cure him.
481
Roy, a reporter for the Yellow Journal, learned of Phil’s condition and entered Phil’s hospital
room wearing a white coat and stethoscope. Phil, thinking Roy was a doctor, disclosed that
his mental capacities were impaired, that a lung and a kidney were no longer functioning,
that he wore a wig because all his hair had fallen out, and that he was now impotent.
The next day Roy published a story attacking the use of inhumane weapons by the
government and the lack of safety precautions used by local arms manufacturers such as
Bomm-Bay. The story included Phil’s name, an account of his accident 20 years ago, and a
description of the symptoms Phil had disclosed to Roy. In addition, the story falsely stated
that Phil’s son, born a year after the accident, was mentally retarded, and that Phil
experienced temporary seizures during which he became uncontrollably violent, once even
beating his wife and child. Roy had no reason to think these false statements were true, and
included them because he felt entitled to a certain poetic license as to assertions that cast no
personal blame on Phil.
Discuss Phil’s rights against the Yellow Journal.
483
ANSWER TO QUESTION I
Brenda v. Smith
Brenda will bring a negligence action against Smith for the damage to her car. Smith, as an
automobile repairer undertaking to service a car, owes a general duty of care—and this is
particularly true when the work affects parts of the car that could cause injury if not properly
repaired, such as the steering apparatus in this case. Breach of duty is given in the facts by
use of the word “negligently.” Actual causation is present because but for Smith’s negligent
reassembly, there would not have been a steering difficulty and Adam’s car would not have
crashed into Brenda’s. Proximate cause is established by the fact that a foreseeable result
(crash) occurred in a quite foreseeable manner (car swerving from faulty steering apparatus).
And because both cars were “badly damaged,” the prima facie case of negligence is
complete.
Smith might allege that Brenda was contributorily negligent in parking her car in violation of
an ordinance. However, this argument will fail because the ordinance undoubtedly is meant
to protect against danger to oncoming traffic created by drivers who pull across the street to
a parking space facing the wrong direction and then pull out again and try to merge with the
proper flow of traffic. But here Brenda’s car was already parked, and it posed no danger to
oncoming traffic. Hence, it cannot be said that the purpose of the ordinance was to avoid the
kind of harm that in fact occurred, and the violation of the ordinance is therefore irrelevant.
(Note that even if Brenda’s car had been properly parked in the space in question, it would
still have been hit by Adam’s car.)
Because the facts do not raise any other possible defense, it appears that Brenda will prevail
in a negligence action against Smith.
(Smith cannot be held strictly liable here because he did not distribute a product, but simply
rendered a service.)
Brenda v. Adam
Brenda will not meet with equal success in a negligence action against Adam for the damage
to her car. The problem here is that although Adam—as a driver on the road and as owner
of a car—owed a duty of due care to those who might foreseeably be hurt by his
carelessness, there is no evidence that Adam breached that duty. In other words, there is no
reason to believe that Adam knew that the car was defective before the episode occurred,
and hence no indication that he acted unreasonably.
Adam v. Brenda
Property damage and personal injury: Brenda cannot be held liable to Adam for property
damage and personal injury arising out of the crash itself, because there is no showing of any
negligence on her part with respect to the occurrence of the accident. Her only misbehavior
prior to the crash was parking in the wrong direction but, as discussed above, violation of the
parking ordinance cannot be used to establish liability for this type of accident.
484
On the other hand, Adam has several possible bases for recovery against Brenda for harm
suffered after the crash. First, by grabbing hold of Adam’s arm (a “touching”), Brenda
committed a battery. Second, an action for assault may lie—arguably Brenda’s behavior led
Adam reasonably to believe that if he were to try to break away or refuse to accompany
Brenda to the station, he would be subject to further physical violence. Finally, a prima facie
case is made out for false imprisonment, by the fact that Brenda restrained Adam through
fear of force.
The crucial issue is whether there is a valid defense or privilege to the three intentional torts.
Brenda will argue that she was arresting someone she reasonably believed to be guilty of
drunk driving, so that her conduct was privileged. However, the general common law
regarding arrests by private citizens without a warrant (even if drunk driving is considered a
felony) is that despite the citizen’s reasonable belief that a crime has been committed, the
privilege is lost if in fact no crime was committed. Because the facts indicate that Adam did
not commit a crime, Brenda’s reasonable belief to the contrary will not protect her from
liability for the intentional torts.
Therefore, Adam can recover at least nominal damages for all three torts, as well as
compensatory damages for the half-hour detention.
Defamation: Arguably, Adam was slandered when Brenda referred to him as a “drunk.”
There was an intentional publication of words that would tend to damage Adam’s reputation
in the community. However, because we are told that he suffered no special damages, he
can recover only upon a showing that Brenda’s statement was “slander per se.” It seems
doubtful that the accusation of committing the crime of drunk driving or of being a public
drunkard comes within one of the four categories of “slander per se.” Even as a crime, such
behavior probably lacks sufficient moral turpitude to support a slander per se recovery; and
because Adam is retired, it is quite unlikely that the statement can be regarded as imputing
conduct incompatible with his profession for purposes of a slander per se recovery. Being
that the other two categories for recovery, a loathsome disease and unchastity of a woman,
are not even arguably on point, an action for defamation will most probably fail.
Emotional distress: A claim for intentional infliction of emotional distress is also unlikely to
succeed because it would be difficult to characterize Brenda’s conduct as “extreme” or
“outrageous.” Brenda had reason to believe that drunk driving occurred, and there is no
basis for inferring that she was acting for any other motive or in any way committing a
practical joke.
Adam v. Smith
Smith will be liable to Adam for property damage (car and liquor bottle) as well as for
personal injury occasioned by Smith’s negligence. Adam’s case in this regard is at least as
strong as Brenda’s case against Smith (above), and there are no apparent defenses against
Adam.
485
A further question, however, is whether Smith is liable for the harm and humiliation that
Adam suffered after the crash because of Brenda’s behavior. Certainly Smith’s negligence
was an actual cause of what transpired, but it is unlikely to be considered a proximate cause.
The foreseeable result of Smith’s negligence involved personal injury but not the likelihood
that the person injured would have a broken liquor bottle in the car and be mistakenly
assumed to be drunk by someone else who would take the law into her own hands. In that
sense, Brenda became an unforeseeable intervening force for which Smith is not responsible.
(Some courts, however, might allow recovery because of the proximity in time and space
between the crash and the subsequent harm—an Andrews analysis.)
Adam would also have an action for breach of the repair contract, Smith’s negligence being
the breach. But again, the damages would not extend beyond those suffered in the accident
because recovery in contract is limited to foreseeable damages.
ANSWER TO QUESTION II
Bill and Harry v. Smith
Smith, as a driver, owed a general duty of care to those in and around the road who might
foreseeably be injured by his carelessness. Bill and Harry, as passengers in another car, were
within the zone of foreseeability and hence were owed that duty of care. The facts stipulate
that Smith violated that duty by acting negligently. And because Smith’s negligence was the
actual and proximate cause of the harm Bill and Harry suffered (their injury being a
foreseeable result), the prima facie case is complete.
Moreover, there are no apparent defenses. The fact that Tom was also negligent would be a
defense only if negligence could be imputed to Bill and Harry on a joint enterprise theory.
However, in this case the parties were not engaged in a joint enterprise: Although sharing
expenses may remove Bill and Harry from “guest” status (below), it alone does not give
them joint enterprise status. A joint enterprise also requires an equal right to control its
operation, and here the facts do not indicate that the three had common control of the
vehicle. The car was Tom’s, he was driving, and he was apparently in control of how to
drive, the route to take, etc.
Bill and Harry v. Tom
Bill and Harry have an action against Tom because of his negligent driving. At common law,
a driver owes others in the car a duty of due care while driving. This duty has been
breached, and that breach is the actual and proximate cause of the harm. Furthermore, no
defenses are evident from the facts.
However, should the state be one of the few having a guest statute, the problem is more
difficult. If Bill and Harry are considered “guests,” these statutes require proof that Tom’s
driving was “wanton” or “grossly negligent,” rather than simply negligent. Here the facts do
not support such a showing (it is only stated that Tom was “negligent”). Nonetheless,
486
Bill and Harry could escape from this situation. They can argue that they are “passengers,”
not “guests”—on the theory that there was an agreement to share expenses. Generally, for a
rider to be characterized as a “passenger,” there must be some payment that motivates the
driver to furnish the ride. Because Bill bought gas and Harry purchased the tickets, they will
probably be deemed passengers and thus will succeed in their common law actions.
Smith v. Tom
The likelihood of Smith succeeding in a suit against Tom for the damage to his car will
depend on whether the jurisdiction has adopted comparative negligence. If not, then his own
negligence completely bars any action against Tom. On the other hand, if comparative
negligence principles do apply, then the outcome depends on what type of comparative
negligence is followed (“pure” or “partial”) and the degree to which Smith and Tom were
each at fault.
Tom also apparently assaulted and battered Smith during the fight and would be liable for
nominal damages but for the fact that these actions are barred in some states by reason of
Smith’s consent to the fight (discussed further below).
Tom v. Smith
So far as damage to Tom’s car is concerned, the analysis here is identical to the one
discussed above in Smith’s action against Tom (i.e., the issue turns on applicability of
comparative negligence).
Tom will also sue for battery to recover damages sustained in the fight. The prima facie case
is made out because Smith intentionally hit Tom and it may be assumed that it was meant to
be a harmful touching. Additionally, there may be a cause of action for assault, because Tom
was undoubtedly apprehensive (and properly so) of Smith’s efforts to hit him during the
fight.
The obvious defense to the above two actions would be consent. By accepting Smith’s
challenge, Tom consented to a fight, and it appears that Smith did nothing to go beyond the
consent or otherwise vitiate it. Tom, however, will argue that the consent was invalid—on
the theory that one cannot effectively consent to a breach of the peace. The courts are split
on this question, but in most states such consent is invalid (as a deterrence to fighting), and
Tom would be permitted to recover for the harm to his teeth and related injuries.
Tom v. Evening Chronicle
A common law action for invasion of privacy lies for the mass circulation of private facts.
The problem here, however, is that even though the picture of Tom was unauthorized, the
event occurred in public in full view of all those who happened to be around. Moreover, one
who undertakes to fight in public may not subsequently complain about the embarrassment
that ensues simply because a photographer happened to come upon the
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scene. The point is not necessarily that the photograph was newsworthy—which is a defense
—but rather that because there was no publication of private facts that would offend a
reasonable person, there was no prima facie case for invasion of privacy in the first place.
(Note that in the unlikely event that a prima facie case could be made out, consent would not
be available as a defense because it was explicitly withdrawn by Tom before any publication
occurred.)
Dr. Todd v. Smith
Smith’s letter to Tom is an intentional publication of a libel concerning Dr. Todd, and the
libel is apparent on its face because it holds him up to ridicule and contempt as an
incompetent dentist. Where a defamatory publication takes the form of libel and is clear on
its face, no state requires a showing of special damages. Hence, the prima facie case is
complete.
The issue then is whether there is an applicable defense. Because the statement is not true,
the only apparent defense under state law would be one of qualified privilege. But is this an
occasion that calls for a conditional privilege? There seemingly is no common interest
between Smith and Tom that would justify Smith’s statement. On the other hand, Smith
probably is concerned with his own financial interests should he be held liable to Tom—it
may well be that Smith is afraid that Tom’s going to an incompetent dentist will subject him
to excessive dental bills. Had there been remaining dental work to be done, this theory might
support a finding of a conditional privilege and Smith’s “good faith” would protect him.
Unfortunately for Smith, however, it appears that all necessary dental work has been
completed so that there is nothing to be gained by Smith’s telling Tom after the fact what he
believes about Dr. Todd. Thus, there do not appear to be any state privileges on point.
It is highly doubtful whether the Gertz privilege would apply in this suit by a private citizen
against another private citizen over a private communication. If it were to apply, Dr. Todd
would have to prove negligence on the part of Smith to recover actual injury damages.
Although Smith was writing in good faith, the facts do not seem to support the notion that he
was acting reasonably in making such a clear mistake between Todd and Dott. If this is so,
Smith was indeed negligent and Gertz would not stand in the way of Dr. Todd’s recovery of
actual injury damages, but Smith’s good faith belief in the truth of what he wrote would
prevent Todd’s recovery of general damages.
ANSWER TO QUESTION III

Wasser v. Davis
One who employs another to perform tasks owes a duty of due care to provide reasonably
safe working conditions. Here, Wasser would claim that Davis breached that duty by failing
to supply the approved safety mechanism required by statute. Arguably Davis’s
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brick building was not a “multiple dwelling” within the meaning of the statute—because only
one floor was regularly used as a dwelling unit. If this is so, it cannot be said that Davis
breached his duty by reason of a statutory violation. However, assuming the building is a
“multiple dwelling” (perhaps because adaptable to such purposes), the result favors Wasser.
The purpose of the statute undoubtedly is to prevent accidents of the sort that occurred here
—i.e., something causing the window cleaner to lose his balance and fall—and Wasser, being
a window cleaner, is clearly within the class of persons to be protected. Therefore, Davis’s
failure to furnish the requisite safety device will be considered “negligence per se” in most
states, as long as his violation is unexcused. Here the infraction does not appear to be
excusable: There is no indication that Davis could not have refit his building to allow for use
of the approved devices; indeed, he should have delayed the window washing until the
necessary accommodations could have been made. It follows then that Davis’s statutory
violation sufficiently establishes breach for a negligence action.
Actual cause presents two problems for Wasser. First, even though Davis violated the statute
without excuse, he nevertheless gave Wasser a safety mechanism that would have been more
effective than an “approved” device. In other words, Wasser was not put in a more
dangerous position because of the statutory infraction. (Note that this factor could also be
analyzed under the breach discussion, arguing that Davis’s violation was not contemplated
by the statute because the statute was only meant to preclude use of safety devices that were
more dangerous than the approved ones.) The second problem relates to Wasser’s failure to
use the device that Davis gave him—i.e., even if Davis had provided the approved device,
would Wasser have used it? This is unclear from the facts; hence, the actual cause issue
cannot clearly be resolved.
On the issue of proximate cause, Davis may argue that the cigarette falling on Wasser’s head
was an unforeseeable intervening force that should terminate his liability. However, this
contention is weak at best, because the statutory purpose is to protect the window cleaner
from losing his balance no matter what the reason. It is therefore irrelevant that in this case
the fall was occasioned by an unusual event. Moreover, there is clearly a foreseeable result
—loss of balance and subsequent fall. Thus, there most probably is a sufficient showing of
proximate cause. (Perhaps the result would be different had the intervening force amounted
to a malicious tort or crime, but the facts do not indicate that such was the case.)
Assuming Wasser can overcome the actual cause problem, his injury completes the prima
facie case. However, Davis appears to have a good defense. Wasser should have realized
that any number of factors could have caused him to lose his balance. Such being the case,
his failure to use any safety device casts serious doubt on the reasonableness of his behavior.
If it was unreasonable, in a contributory negligence state, Wasser’s conduct will completely
bar his recovery; and in a comparative negligence jurisdiction, Wasser’s recovery will at least
be reduced (if not barred altogether)—the result turning on the type of comparative
negligence adopted and the degree to which Wasser and Davis were each at fault.
(In some cases, a statute is perceived to have been enacted for the benefit of a group unable
to protect itself, and the failure of a member of that group to behave reasonably
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has been totally disregarded. This most often applies to children and to workers on
dangerous jobs who are told to undertake a hazardous task with the risk of being fired if they
refuse. However, this is not the case here because Wasser was given safety equipment to use
but nonetheless failed to use it—apparently unreasonably.)
Wasser v. Tenet, et al.
Wasser will claim that Tenet behaved negligently, either by tossing a lighted cigarette out the
window or by allowing his guest to do so. The major problem, however, is proving who in
fact dropped the cigarette (all we know is that Tenet and his wife were having a cocktail
party—from the facts given, anyone could have been responsible). Assuming Wasser can
gather proof that Tenet or his wife was at fault, a prima facie case will not be difficult to
establish. Persons in apartments abutting public sidewalks must exercise due care so as not
to endanger persons outside. Tenet might contend that under the Cardozo view Wasser was
owed no duty because he was not a foreseeable plaintiff, being a window washer (possibly
unexpected) and not a passerby on the sidewalk below. However, Tenet is unlikely to
succeed with this argument—even Cardozo would agree that it would be ludicrous to restrict
the class of foreseeable plaintiffs to those passing on the sidewalk. A window washer part
way down is even more clearly in the zone of danger than are others on the street below.
Hence, the better conclusion would be that Wasser was owed a duty of due care. Moreover,
there is no problem with causation: But for the incident, Wasser would not have lost his
balance and been hurt—hence, actual cause. Assuming Wasser is a foreseeable plaintiff, his
injury was a foreseeable direct result of the cigarette hitting his head. Thus, proximate cause
is present.
Liability would therefore seem to follow except for the fact that Tenet can rely on the same
defense analysis as discussed in the suit against Davis—i.e., contributory negligence or
comparative negligence may well bar (or at least reduce) Wasser’s recovery.
Going back to the issue raised earlier, if Wasser cannot show that Tenet or his wife was at
fault, the likelihood of his making out a prima facie case greatly diminishes. An effort to hold
Tenet vicariously liable for the misbehavior of whomever dropped the cigarette is unlikely to
succeed because the relationship of host and guest does not give rise to imputed liability.
Neither can there be primary negligence unless the host has some reason to know that one of
his guests is creating unreasonable risks toward others. Absent such a showing, Wasser will
have to identify the particular individual who dropped the cigarette; however, this is virtually
impossible from the facts given. Wasser might try to rely on a res ipsa claim against everyone
in the apartment, invoking Ybarra v. Spangard principles. However, the likelihood of his
succeeding is dubious—the cocktail party seems to be entirely different from Ybarra, where
it was known that each defendant had some contact with the plaintiff.
Mrs. Wasser v. Davis
A duty is owed to exercise due care so as not to subject others to a foreseeable risk of
physical injury, through physical impact or threat thereof, that might foreseeably result
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from emotional distress. The problem here is that although Davis’s conduct (phone
conversation) was directed at Mrs. Wasser, there was no “threat of physical impact.” Hence,
these facts are far removed from the typical case. Nonetheless, arguably Davis’s knowledge
of Mrs. Wasser’s heart trouble may well have subjected him to a duty not to impose an
unreasonable emotional burden on her. If such is the case, the outcome turns on whether he
in fact acted unreasonably in making the phone call, taking into consideration the frantic state
of events. Would a reasonable person under similar circumstances have found a more gentle
way to handle the situation? This is debatable. Should it be decided that Davis was negligent,
he will be liable to Mrs. Wasser’s estate for her injury and for expenses attending her
subsequent death. Additionally, a wrongful death action may lie; although, should Wasser be
a beneficiary in such an action, recovery would be barred or reduced because of his own
negligence that occasioned Davis’s call in the first place.
ANSWER TO QUESTION IV
Ima v. Nerv
Ima’s claim against Nerv will be based on a negligence theory. Nerv owes a duty to those in
and around the road to exercise due care while driving and while preparing himself to drive.
The problem here, however, is that there is no clear breach of that duty—i.e., the facts do
not indicate that Nerv could have anticipated his allergic reaction. Arguably Nerv was
negligent in driving after taking a tranquilizer whose strength and effect he had not previously
determined, but seeing that the label raised no suspicion of side effects, and given the reality
that persons often take medication before driving unless warned otherwise, this theory is not
strongly supported by the facts.
Actual causation is present because, but for Nerv’s having taken the drug, he would not have
sustained the allergic reaction and would not have hurt Ima. On the other hand, proximate
cause raises a problem because although the foreseeable risks undoubtedly included
drowsiness, Nerv should have had time to pull over to the side of the road. But here he
“suddenly” became dizzy and lost control of the car. Even though attributable to his taking
the pills, the suddenness of the reaction arguably was not the risk reasonably to be
anticipated. Hence, many courts would hold this to be an unforeseeable result, precluding a
finding of proximate cause. Others, however, might hold that losing control of the car was
the foreseeable risk involved and that it did in fact occur—although through unexpected
dizziness rather than predictable drowsiness. Damages are given and there are no apparent
defenses so that if the problems of breach and proximate cause can be overcome, Nerv will
be liable to Ima.
Ima v. Drugco
Ima may pursue several theories against Drugco. First, strict liability in tort is possible, but
Ima faces the problem that she is a “bystander.” Almost all states allow any person injured
by a defective product to invoke strict liability, on the theory that bystanders are
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in need of even greater protection than users or consumers. Thus, the case turns on whether
the product was “defective.” Here we are dealing with a claim of design defect because the
entire batch can potentially cause allergic reactions. The question, however, is whether a
product that is perfectly safe for 9,995 persons out of 10,000 is defectively designed because
of the danger to the others. Given the fact that extensive premarketing tests had not
disclosed the danger, most courts would probably treat the side effect as a scientifically
unknowable risk, thus precluding a finding of design defect. However, under the growing
trend if there is a known risk of harm to any number of potential users, no matter how small,
the manufacturer owes a duty to warn, and its failure to do so renders the product defective.
Thus, Drugco’s failure to warn of Dreamy’s potential, albeit slight, side effects after two
prior allergic reactions were reported renders the product defective.
Should Ima attempt an action for breach of implied warranty of merchantability, she would
run into the dilemma that she was not in privity with Drugco, the manufacturer. The
Uniform Commercial Code offers several alternatives to the traditional strict privity
requirement. States adopting the narrowest provision would not allow recovery, but those
following the broader provisions might well find for Ima as a person reasonably to be
expected to be affected by the product. Arguably Dreamy is not fit for normal use and
hence, unmerchantable.
Another possible theory is breach of express warranty—because the label states that the drug
is “safe for adult use.” However, Ima faces the same privity problem as she does in the
implied warranty action.
A strict liability action for innocent misrepresentation would be futile because there was no
reliance by Ima on the label’s representation.
Turning to negligence theories, it is clear that under the expanded interpretation of
MacPherson v. Buick Motor Co., Drugco owes a duty of due care to anyone who might be
adversely affected by its products. The negligence here is apparently not in the failure to
discover the allergic danger, because we are told that extensive testing—including testing by
the FDA—did not reveal the defect. And it is unlikely that the testing was performed
unreasonably. Rather, the negligence may be in the failure to respond faster once Drugco
learned that others were having adverse reactions. Although further tests had been conducted
and new labels ordered, perhaps the reasonable course of behavior would have been to
inform all pharmacists immediately that potential problems were being reported and studied.
If this had been done, a jury might well find that Phil would not have recommended the
potentially dangerous tranquilizer to his friend Nerv. Causation would be present because an
earlier warning of sudden dizziness might very well have avoided the harm that occurred
here.
Nerv v. Phil
Strict liability applies only in the sale of a product; it does not apply to rendition of services.
A pharmacist’s sale of prescription drugs has been held to constitute professional services
rather than the sale of goods. Although the drug in issue here was nonprescription, because
Phil was asked to recommend a remedy, he might very well be treated as rendering a service
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here rather than as the seller of goods. Hence, even assuming the drug was “defective,” a
strict liability suit against Phil would probably fail.
On the other hand, arguably there should be liability for breach of the implied warranty of
fitness for a particular purpose, because having discussed his problems with Phil, Nerv
probably relied on Phil’s judgment as a licensed pharmacist to supply appropriate
medication. In that sense, Phil is no different from any retailer who selects a product in
response to a customer’s requirements—if the product does not work properly, it is at the
risk of the one who selected it.
A negligence action probably would not be successful because there is no showing that Phil
behaved unreasonably. Although he chose Dreamy, he had no reason to know that there was
any problem, and the product had been adequately tested and certified for sale by the FDA.
Nerv v. Drugco
Nerv may have several actions against Drugco. In a strict liability in tort action, he will have
to show that the product was “defective” (e.g., under the Restatement approach, that the
drug was “unreasonably dangerous”). As noted earlier, Drugco’s failure to warn of a known
risk of harm renders Dreamy defective.
Breach of the implied warranty of merchantability is available here if Nerv can surmount the
privity problem—being that he bought the product from Phil. Again, states differ on this.
An express warranty theory would also be available, assuming Nerv had read the label “safe
for adult use” before he bought the drug (or at least before he used it). The fact that it was
Nerv’s idiosyncrasy that made the product unsafe for him is irrelevant because the label gave
no reason to believe that allergic reactions might follow; hence, Nerv had no reason to doubt
the safety of the drug.
Drugco may also be liable on a strict tort liability theory for innocent misrepresentation.
[Rest. 3d-PL §9] Actual and justifiable reliance on the label’s representation can probably be
shown.
Finally, Nerv has a negligence action against Drugco similar to that discussed above in “Ima
v. Drugco”—i.e., unreasonable delay in alerting the public of the drug’s potential dangers.
Had there been a timely warning, it is likely that Nerv would have taken appropriate
precautions, thereby avoiding the result in this case. Thus, causation is present, and because
there are no apparent defenses, liability should follow.
ANSWER TO QUESTION V
Personal Injury Claims by Park v. Mower
Negligence: Mower as a supplier of chattels owes a duty of due care in the manufacture and
design of its cub tractors. This duty extends to buyers, users of the product, and
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“bystanders”—a category Park may fit into in this case because, at the time, he was
watching Smith use the tractor. The apparent cause of the accident was a crack in the nut
that held the rotary cutter (although this must be proven). From what we know at this point,
if the evidence should suggest that this type of crack (assuming cause can be shown) is one
that more often than not is attributable to negligence in the selection of metal for the nut or in
the manufacture of the nut, then Park may be able to establish breach of duty by the use of
res ipsa loquitur. If the defect was in fact visible and should have been found through the
inspection process before leaving Mower’s plant, then that would be another approach that
Park may take to showing breach of duty. If the evidence supports the notion that this defect
could as plausibly have occurred after the product left Mower’s control and that Mower was
in no way responsible for what subsequently happened (Retail’s inspection or Smith’s
adjustment), then Park would be unable to use res ipsa loquitur and would have to show
some specific negligence that occurred while the product was under Mower’s control.
A final negligence theory might be that Mower negligently failed to design a housing
sufficiently strong to prevent the escape of a detached cutter. More facts are needed here.
If Park can meet the negligence showing, then on the question of proximate cause, Park may
lose if it is shown that Retail did in fact discover the defects but marketed the product
anyway in callous disregard of the rights of consumers or that Smith did something
unexpected in his efforts to tighten what appeared to be a loose nut.
No apparent defenses can be asserted against Park. It is true that he knew the product was
not cutting evenly and not cutting one-inch branches, but there is no reason to think that he
had unreasonably failed to perceive a danger to his physical security from the way the tractor
had been performing. Assumption of the risk is absent here because Park seems not to have
been aware of any particular danger from the machine. Even in comparative negligence
jurisdictions, it is difficult to see what conduct on Park’s part a jury might consider in
reducing the recovery against Mower.
Strict liability: If Park should sue Mower on a strict products liability theory, Park would
have to establish that the cutter was defective when it left Mower’s control and that the
defect was the cause of the accident. If the cracked nut existed at the time the product left
Mower’s control, then the defective nature of the product and the unreasonable danger
created for users and bystanders are quite clear. The bystander’s case is somewhat more
difficult here, but Park might get around that if the state is one of almost all that has
extended strict liability to bystanders or if Park can establish that he was a user who was
only temporarily not in control of the product. If the product cannot be shown to have had
the defect at the time it left Mower’s control, then a strict liability case will fail for lack of the
showing of the marketing of a defective product.
On proximate cause, Mower might again try to argue that Smith’s repair was an
unforeseeable misuse of the product. But the facts indicate that all he did was tighten a loose
nut—and there is no showing that he was aware of the danger but nonetheless failed to warn
Park. (The same may be said of any claim that Retail found the defect but failed to
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notify customers.) Neither can Mower defend on the ground that Park put the product to an
abnormal use by riding it over rough terrain. It was marketed for the clearing of brush and its
use, even if not exactly what the manufacturer expected, was certainly within the range of
foreseeable uses.
So far as defenses are concerned, there appears to be no contributory negligence. But if the
court should rule that a jury could find some contributory negligence on Park’s part, a
growing number of states will allow that to reduce his recovery against Mower on a strict
liability theory.
Warranty: It is not clear who advertised that the product would cut one-inch brush. But in
any event, this seems not proximately related to the claim for personal injury (see below).
But the implied warranties under the Uniform Commercial Code would be available in
Park’s action against Mower for breach of the implied warranty of merchantability unless the
most restrictive privity version of section 2-318 (limited to family members and “guests”) is
enforced. But even then some courts have expanded upon that statute to allow warranty
recoveries for personal injury beyond its terms. If Mower argues that the one-week return
provision was a permissible limitation on the remedy for breach of warranty, then Park may
respond that section 2-719(3) declares that limitations of warranties against personal injury
are prima facie unconscionable. Another answer may well be that this limitation was offered
only by Retail and cannot help Mower.
If there are defenses, the trend is to use comparative fault here.
Personal Injury Claims by Park v. Retail
Negligence: Park’s negligence action here must be based on the fact that Retail created the
defect while the tractor was in Retail’s control or that Retail negligently failed to find the
defect that was previously there as a result of defective manufacture. The first claim seems
unlikely from the facts. The second possibility, failure to discover, will depend on whether
the crack was visible and whether the inspection and service that Retail did in this case, if
done reasonably, should have disclosed the problem of the nut. The proximate cause
problem of Smith and the defenses would be the same as in Park’s case against Mower.
Strict liability: The claim here would be easier because the presence of the defect at the
time it left Retail’s hands is apparently clear from the facts and nothing that Smith did in
tightening the nut was likely to have created the defect. Thus, we have Retail marketing a
defective product, and traditional products liability law will apply because this product was
certainly unreasonably and unexpectedly dangerous to the buyer. Again the defense
questions would be the same.
Warranty action against Retail: Here there are no privity problems and the implied
warranty of merchantability existed and was breached by this product. If any defenses are
available, they would be a form of contributory negligence—as to which some states now
use comparative fault and will reduce Park’s warranty recovery. The one-week return
privilege cannot serve to bar Park’s action for personal injuries because of section 2-719(3)
(discussed earlier).
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Action for Damage to the Tractor

Park’s action against both Mower and Retail for damage to the tractor would be analyzed the
same way as a personal injury action as far as the negligence claim is concerned. Under a
strict liability theory, however, some states have not allowed an action in the absence of
privity for harm to the product itself, which is what happened in this case. The jurisdictions
are split. The claim for product loss in warranty would likely be analyzed the same as the
personal injury action above. If the jurisdiction allows Mower to be liable for breach of
warranty under section 2-318, then that liability should extend to both the personal injury
and the product. So far as defenses are concerned, however, Park may not have the
advantage of section 2-719(3) because that applies only to personal injury claims and not to
property damage claims. Nonetheless, the one-week return situation seemed to apply only to
a customer who was dissatisfied because the product would not perform properly. It seemed
not to contemplate a limitation on an action involving destruction of property.
Failure to Cut One-Inch Thick Brush
This is purely economic loss, and most courts would not recognize a negligence action for
failure of a product to perform its function leading only to economic disappointment. The
same seems to be true in strict liability, although here again the states are split. The best way
to pursue this claim is an action for breach of express warranty. This warranty does not
require privity; therefore, an action should be available against both Mower and Retail. The
only possible defense is the one-week provision, and the question would then be whether
that condition written into the contract serves to exclude all other remedies for failure to cut
the one-inch brush.
Even so, Park cannot recover damages for both the destroyed tractor and for its failure to
cut the brush in this case, because recovery of the $1,200 for loss of the tractor would cover
Park’s loss from the failure to cut.
ANSWER TO QUESTION VI
Prof and Prim v. Jones
Jones was not an employee of University and bore no special relationship to Prof or Prim.
He did not cause the plaintiffs’ predicament and so was under no obligation to attempt a
rescue or to call for help. Because no duty existed, none was breached, and no negligence
action lies. Other theories of liability do not apply.
Prof and Prim v. Elco
By not repairing a well-known defect in the elevator, Elco breached its contract with
University. Even if the plaintiffs are able to sue as third-party beneficiaries, damages for
breach of contract are limited to those reasonably contemplated by the parties when the
contract
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was made. Because the facts state that no danger of falling or physical injury existed, the
harm in this case was probably beyond the parties’ contemplation when the contract was
signed.
Because it does not appear that Elco sold or installed the elevator, negligence is the only
available tort theory. In some states, if Elco never began to perform its contract, its conduct
would be called nonfeasance, and no tort action would lie. Even though the elevator often
stopped between floors and needed a maintenance worker to start it again, this restarting did
not go to the defect and may not be misfeasance.
If Elco committed misfeasance by trying to fix the defect, all states would find liability a
close question. The physical harm suffered by the plaintiffs was foreseeable; Elco’s failure to
do the repairs properly would be unreasonable. Prof’s harm may be foreseeable in tort even
though not recoverable in contract. His damages would be medical expenses and economic
losses incurred as a result of the heart attack plus pain and suffering. Prim suffered “severe
nervous shock” from her confinement and fear. Some states would call this purely emotional
harm and bar recovery. In addition, her chances of getting damages for her embarrassment
are small. Elco could not reasonably have foreseen this type of harm coming from its
misfeasance.
Elco may claim that the plaintiffs were contributorily negligent in using the elevator after the
building was closed, knowing of the defect. Even though it had an alarm bell, the likelihood
that it would not be heard should have been considered. In comparative negligence states,
there would be no complete bar in any event.
A second defense is assumption of the risk. Both plaintiffs were aware that the elevator often
stopped between floors and should have foreseen the possibility of delayed rescue late at
night. Unless Prof did not know of his high blood pressure, he may have voluntarily
assumed the risk of a heart attack. The assumption of risk defense is less strong against Prim
because she may not have known of the danger to Prof.
Prof and Prim v. University
If University was negligent in hiring Elco, then University may be liable for its own
negligence. However, nothing in the facts suggests that Elco was not an appropriate company
to hire for elevator maintenance.
In any case, University may be liable for Elco’s negligence because the duties assumed by
Elco were nondelegable. Maintaining elevators in the law school was part of University’s
duty to provide a safe place to work for employees. It might also go toward keeping public
premises safe for visitors, but it is not clear that the law school was open to the public.
Damages and defenses are the same as discussed above. However, workers’ compensation
may bar suit against University.
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ANSWER TO QUESTION VII
Bernard v. Alana
Bernard could bring an action against Alana for conversion. The main issue here is whether
Alana has any defenses.
At common law, to recover for conversion, a plaintiff must show: (i) an act by the defendant
that substantially interferes with the plaintiff’s right to possess a chattel; (ii) intent to perform
the act; and (iii) causation. The normal remedy for conversion is damages measured by the
value of the chattel plus any damages that result from the dispossession. Here, Bernard can
make out a prima facie case. Alana took an MP3 player that Bernard owned (and therefore
had the right to possess); she intended to take the player; and her taking caused Bernard’s
dispossession. Thus, Bernard can make out a prima facie case for recovery.
Although Bernard can make out a prima facie case, Alana may raise a few defenses. The
first defense that she should raise is consent. A plaintiff’s consent to the taking operates as a
complete defense to an action for conversion. Here, Alana will claim that she took the MP3
player because Bernard had posted a sign above the box of players that read: “FREE—
PLEASE TAKE ONE.” Bernard, of course, will argue that he did not consent to the taking
of the player; the consent was meant for advertisements that normally are where the players
were, and that the mistake should have been obvious to Alana. The outcome of either
party’s argument turns on the reasonableness of the mistake and facts not given (e.g., were
these high-end MP3 players or cheap players with little memory; did the store ever give free
samples and, if so, did Alana know this, etc.). This determination would be made by the trier
of fact.
Even if there was a technical conversion, Alana could successfully limit her damages some-
what. An offer by the defendant to return the chattel mitigates damages and limits the
plaintiff to the basic remedy if the defendant acquired the chattel innocently and the chattel
was not impaired in value or condition during the dispossession. Here, Alana offered to
return the MP3 player to Bernard once she discovered the mistake. Thus, if the trier of fact
finds her mistake to be innocent, she will probably not have to pay damages for
consequences that occurred after she made her offer to return the player.
Alana v. Bernard
Alana could bring an action against Bernard for defamation. The main issue here is whether
Alana must prove damages to recover.
A defamation case is established if there is a publication to a third person of a statement
understood as defamatory of the plaintiff that causes damages to the plaintiff’s reputation.
The type of damage that the plaintiff must prove depends on whether the defamation
constitutes libel or slander. Libel is the written or printed publication of defamatory language
wherein the plaintiff does not need to prove special damages and general damages are
presumed. Slander is spoken defamation wherein the plaintiff must prove special
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(i.e., pecuniary) damages unless the defamation falls within a slander per se category. There
are four slander per se categories: (i) serious crime, (ii) loathsome disease, (iii) incompetency
in trade or profession, and (iv) unchastity.
Publicly accusing Alana of being a thief was a defamation by Bernard. The statement was
made intentionally, in the presence of many people, and would tend to lower the reputation
of Alana in their eyes. The defamation was a slander which Alana will argue is actionable per
se. Although calling one a “thief” generally is not slander per se, Bernard’s adding, “Come
back here with that player!” is a specific allegation of shoplifting (a serious crime), and thus
constitutes slander per se. Therefore, Alana need not prove special damages and will recover
general damages.
Bernard may attempt to raise truth as a defense. Truth generally is a defense to an action for
defamation. However, this defense will be unsuccessful—Alana was not in fact or law a
thief, because she lacked criminal intent.
A stronger defense would be that Bernard enjoyed a conditional privilege to defame Alana to
protect his own property. A defendant is conditionally privileged to defame another if the
defendant had a reasonable belief that some important interest of the defendant was being
threatened and the defamatory statement was made to protect that interest. However, such a
privilege may be lost through bad faith, excessive publication, or the like. Here, Bernard saw
Alana take his MP3 player and was merely trying to stop her from walking away with it.
However, the “publication” may have been unreasonably excessive given the circumstances,
which include the fact that Alana was walking away and not running. Otherwise, honest
belief will sustain the privilege. If Bernard did not realize the ambiguity of his sign, a jury
might well find he honestly believed a theft had occurred.
Carla v. Bernard
Carla may bring an action against Bernard for false imprisonment. The main issue here is
whether Bernard may successfully assert the “shopkeeper’s privilege.”
To establish a prima facie case of false imprisonment, a plaintiff must show: (i) an act or
omission to act on the part of the defendant that confines or restrains the plaintiff to a
bounded area; (ii) intent on the part of the defendant to confine or restrain the plaintiff to the
bounded area; and (iii) causation. In addition to any damages directly resulting from the
imprisonment, the plaintiff is entitled to recover for any injuries sustained in making a
reasonable attempt to escape.
Here, Bernard locked Carla in the store’s restroom. The act was intentional and temporarily
succeeded in confining Carla to a specific area, because Carla knew of the imprisonment and
was not aware of a means of escape beforehand. Even if the possibility of climbing through
the window was immediately apparent, it was not so simple and safe an escape as to negate
the confinement. Not only did Carla have to stand on a chair to get to the window, she had
to step on its back, and she was under no duty to take the risk of such a maneuver. Thus,
Carla is entitled to recover any actual damages resulting from the detention. In
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addition, she can get damages for her broken leg, because injuries suffered in a reasonable
attempt to escape false imprisonment are recoverable. Even if Carla were deemed negligent
for trying to escape as she did, such negligence would not be a defense to an intentional tort.
Bernard may raise the shopkeeper’s privilege as a defense. Most states give shopkeepers a
privilege to detain temporarily for investigation anyone whom they reasonably suspect of
having tortiously taken their goods. The detention must be effected in the store or nearby,
the shopkeeper must have reasonable grounds to suspect the person detained, only
reasonable force may be used, and the detention may only be for a reasonable time and must
be conducted in a reasonable manner. Where these conditions are met, the shopkeeper is
immune from liability for false arrest, battery, etc.
Here, Bernard detained Carla on the premises of his store. He also had reason to suspect
Carla, because she looked like Alana and Bernard had seen Alana take an MP3 player earlier
in the day. Moreover, Bernard did not use excessive force in detaining Carla. The only real
question is whether the detention was conducted in a reasonable manner. Nothing here
indicates that Bernard told Carla who he was or why he was locking her in the restroom.
Indeed, nothing indicates that Bernard informed Carla that she was being intentionally
confined. It might also be argued that a restroom is an odd place to confine a suspect. As a
result, this defense likely will fail.
No other defense will work either. For example, recapture of chattels is limited to situations
where the defendant is in fresh pursuit of the person who took his chattel, the defendant
must have made a demand on the plaintiff to return the chattel, and the recapture must be
from the person who tortiously took the chattel. None of these conditions is met here.
Neither can Bernard argue that the confinement was pursuant to a citizen’s arrest. First of
all, Bernard never actually made an arrest. He did not even tell Carla that she was being
held. Calling the police does not constitute an arrest. In addition, Bernard did not enjoy the
privilege to arrest for a misdemeanor because he was not in fresh pursuit and had the wrong
person. At common law, the privilege is not given to a citizen who mistakenly arrests the
wrong person.
ANSWER TO QUESTION VIII

Zoe v. Resco
In this case it appears that Prex was acting in the scope of his employment to further Resco’s
relations with the community and that his actions will be chargeable to Resco.
Defamation: Prex intentionally published to third persons a statement that hurt Zoe’s
reputation in the community. This was not simply name-calling in a fit of anger. In this
situation, the words used conveyed the idea that anyone who believed that Resco’s operation
created a danger of an escaping virus was an ignorant person whose intellectual abilities
500
were far below normal. This would be enough to lower Zoe’s reputation in the eyes of a
substantial segment of the community. The fact that Zoe was not named is irrelevant. She
can readily prove that hearers and readers understood that she was being referred to by
Prex. Finally, Prex’s assertion was one of fact because he had access to secret information
that apparently induced him to condemn the intellect of disbelievers.
The next critical question is whether Zoe must show special damages. Because the damage
occurred through the publication in the News, Zoe will argue that Prex committed libel even
though he only spoke the words. Resco and Prex will argue a slander theory. If slander is the
conclusion, this may not be slander per se because it does not suggest that Zoe is
incompetent in her trade or profession—unless cattle auctioneers are expected to be familiar
with the risks of experimental research involving cattle viruses. If this is part of the
knowledge demanded of auctioneers, then Zoe has an action for slander per se.
If the claim is considered libel—a more likely result given Prex’s effort to obtain wide-spread
dissemination through the press—it is not a libel clear on its face. In such cases, some states
follow the general libel rule and do not require a showing of special damages. In others,
special damages are always required. In still other states, special damages are required unless
the words, if spoken, would have been slander per se. That will depend on the slander
analysis above. If special damages are required, the financial loss Zoe suffered will not
suffice because it was not the result of public reaction to the defamation.
As to defenses, Resco may argue it has the qualified privilege to speak to protect its
reputation as a safe activity in the community. But even if such a privilege were accorded, it
would be lost if Prex did not have an actual, honest belief in the truth of the defamatory
matter.
Because Zoe has not voluntarily thrust herself into this controversy, she will be a private
person under the Gertz case. However, a majority of the Supreme Court Justices would
apply Gertz to nonmedia defendants if the defamation regarded a matter of public concern.
In this case, a matter of public concern is definitely involved (i.e., safety of cattle virus
research in a cattle and dairy district). Gertz probably applies; Zoe may recover actual injury
damages—which may include the financial loss here and proven emotional distress and
embarrassment—upon proof of negligence. That should be easy here given the lack of any
investigation before speaking. If Zoe wants general damages, she must prove deliberate
falsity or reckless disregard for the truth under the New York Times test. In a few states,
private plaintiffs must prove this to recover any damages at all.
To the extent damages are attributable to the republication of the statement by the News,
Resco will be responsible because the republication was both intended and foreseeable.
Intentional infliction of emotional distress: Can calling Zoe a “driveling idiot” (without
any basis in fact) be considered extreme and outrageous behavior? On the one hand, Prex
was trying to embarrass Zoe into taking action—and succeeded. The language itself seems to
fit more comfortably into the nonactionable insult category. Yet this was a premeditated
effort to humiliate Zoe, which might warrant liability—even though Prex was trying to
achieve something for himself in the process, not simply playing the practical joker.
501
Zoe’s “considerable embarrassment” appears serious enough to be actionable. (There is no

requirement of physical injury.)
False light privacy: Some states permit actions when the defendant has placed the plaintiff
in a false, but not necessarily defamatory, light in the eyes of the community. If an actionable
defamation exists, this action adds little. But if no defamation was found because of lack of
an actionable defamation or special damages, this action might help Zoe. She was falsely
portrayed in the community as an ignorant person. Although a constitutional privilege might
exist, Prex has forfeited it by being recklessly responsible for the falsity by speaking without
having made any investigation. A jury could find that he knew he did not know the truth of
the statements he was making.
Misrepresentation: Resco, through Prex, falsely stated that “no danger at all” existed from
the plant. This statement was made recklessly, with knowledge that Prex did not know the
truth, and with intent to induce Zoe to take certain steps in reliance. Even though the reliance
was not to benefit Resco directly, that is not required with fraud. Zoe actually relied
(although motivated in part by other reasons), and this appeared justifiable because nothing
signalled that the statement was obviously false. Resco’s argument that the statement was
only one of opinion will be rejected because the words were spoken by one claiming to have
special knowledge about secret experimental work. Zoe’s economic losses were caused by
her reliance—whether the cattle died from the virus or were killed to prevent its spread. The
latter was a foreseeable result of the reckless statement.
Strict liability for abnormally dangerous activity: Resco’s operation seems to qualify as
an activity that should give rise to strict liability because of its dangerous and uncontrollable
nature. Zoe’s damages were actually and proximately caused by the miscarriage of the
activity because the destruction of the cattle was a foreseeable result of the escape of the
virus.
The major problem with this claim is that the type of loss suffered—financial—is not the
personal injury or property damage claim usually brought in these cases. As with the law of
defective products, the reasons that motivated the development of strict liability for these
losses may not extend to pure economic loss. On the other hand, some courts might
conclude that one who maintains a dangerous activity should be liable for all types of losses
caused by its dangerous features, particularly when, as in this case, some victims sustained
serious property damage.
If the action can be established, Zoe would not be barred by her own conduct. She did not
assume the risk because she did not know about the danger. Because her behavior seems
entirely reasonable in the situation, she was not negligent in any way.
Nuisance: This action is brought for interference with the use and enjoyment of one’s land.
It may be based on strict liability if the manner of interference is one that results from an
abnormally dangerous activity—as in this case. The problem with nuisance here is that Zoe’s
loss was not caused by any inability to use her land. The land was usable—it was her
business that was hurt by the lack of cattle in the area. Whether or not the virus invaded her
502
land, her loss was peculiarly the result of the harm to others in the community rather than a
possessor of land.
Zoe v. Prex
Prex is personally liable for the torts discussed in the foregoing discussion—except for strict
liability for abnormally dangerous activity and nuisance, as to which Resco alone bears any
liability.
Zoe v. the News
Defamation: The prima facie case against the News will be the same as that against Resco
and Prex—except that now we clearly are dealing with libel. The privilege situation is quite
different. The News may assert the state common law privilege of record libel. Although
most courts limit this to accurate reports of governmental proceedings, some states do extend
it to accurate reports of general open meetings—and they might be persuaded to extend it
another step to any openly made statement about a matter of public concern. Such an
extension might be based in part on reliance on the constitutional privilege of “neutral
reportage” that protects press reports on both sides of an ongoing dispute of public concern.
However, the privilege does not easily cover this case because here we are not dealing with
an ongoing controversy or with two sides to a debate—or even with a public person.
In any event, the News has the Gertz privilege for reasons already discussed. Zoe must
prove falsity due to negligence. If the News did not know and had no reason to know that
the statements were aimed at Zoe before it published the story, then the News can defend on
the ground that it cannot be liable because the statement did not show that damage to
reputation was likely to result. Even if the News knew about the goal of the statement, it
may have had no reason to doubt what Prex was saying—and thus was not negligent for
printing the story without further investigation. On the other hand, the known self-interest of
Prex might have alerted the News to the need for further research before printing the story.
If Zoe proves negligence, she may recover actual injury damages.
The only constitutional privilege that avoids concern with negligent falsity would be an
expansion of the neutral reportage approach—in which it is irrelevant whether the News
believed that Prex was speaking accurately.
Intentional infliction of emotional distress: The News cannot be shown to have engaged
in extreme and outrageous conduct by reporting Prex’s statement. A showing of negligence
would be insufficient for liability.
False light privacy: Even if a prima facie case can be established, Zoe will have to show
that the News was reckless in making its error in its report of a story of public interest. At
most, negligence seems likely.
Misrepresentation: A claim for misrepresentation will fail whether Zoe alleges intentional or
negligent misrepresentation. The News reported the representation of another,
503
and presumably credited to Prex his appraisal of the danger of a virus infection. The only
representation of the News was that it reported accurately what was said. Zoe, therefore, did
not rely on any representation of the News.
Even if the News claimed on its own that no danger existed, Zoe will not likely recover. The
News did not intend to deceive anyone, had no knowledge that a danger existed, and did not
mean for Zoe to rely on its statement, so it committed no intentional misrepresentation. The
News may have been negligent in not investigating the claim, but probably did not intend that
Zoe should rely on it in a business transaction, so it should not be liable for a negligent
misrepresentation.
ANSWER TO QUESTION IX
Pat v. Drugco
Strict liability: Pat’s most promising action against Drugco is for strict liability. Although Pat
is not in privity with Drugco, virtually all states have abandoned privity requirements in strict
liability actions and permit even injured bystanders to recover.
Pat may allege that failure to warn users that Pyrib often induces drowsiness made the drug
unreasonably dangerous. For purposes of strict liability, a product may be defective not only
in manufacture and design, but also in the warnings or instructions needed to make it safe.
Pyrib was defective because, in the absence of a warning of the drug’s side effects, a
consumer could reasonably expect his alertness to remain unaffected. A specific caution
against driving was also called for, because Drugco should have foreseen the special dangers
posed to drivers who may fall asleep.
Pat should be able to show that the lack of warnings caused her injuries because Driver, if
warned, either would not have taken Pyrib or would have stayed home. Driver’s conduct
was foreseeable, so even if it was negligent, the defective product remains a proximate
cause. Dr. Ard’s failure to warn Driver, even if negligent, does not supersede Drugco’s
liability.
Drugco has no defenses to a strict liability action, and Pat may recover for all of her
damages.
Negligence: Because Pyrib is known to have the side effect, Pat should be able to make out
a negligence action by the same showing as above. The only differences are that Pat must
show that the danger created by the inadequate label was one that Drugco should reasonably
have anticipated, and that the label could easily have been made adequate.
Pat v. Transit
Pat’s action against Transit is for negligence. Transit is a common carrier, so it owes Pat, a
passenger, a high standard of care. Pat can argue that Transit breached its duty in
504
several ways: (i) that it failed to observe Driver’s condition; (ii) that it failed to warn its bus
drivers not to drive after taking medication; and (iii) that it failed to provide a doctor to treat
its drivers without endangering passengers. “But for” each of these failures, the accident
apparently would not have occurred, so each failure could have been an actual cause of
Pat’s injuries. The crash was foreseeable as a result of each failure, so if any of the three
was an actual cause, it was also a proximate cause. Should the jury find that Transit
breached its duty of care, and that the breach caused the accident, Pat may recover for all of
her damages. Transit has no defenses.
Pat may also hold Transit liable for any negligence of Driver. Especially in light of the high
duty of care owed to passengers, Driver appears to have been negligent in continuing to
drive after he began feeling drowsy. Stopping and getting a replacement, or calling in to the
office for advice, would have prevented the accident; thus, Driver’s negligence was an actual
and proximate cause of Pat’s injuries. His negligence may be imputed to Transit under the
doctrine of respondeat superior. Again, Transit has no defenses, but it may seek indemnity
from Driver.
Pat v. Dr. Ard
In treating his patients, Dr. Ard owes a duty of care to third persons who will be affected by
that treatment—at least to Pat because she was a foreseeable plaintiff. Whether he breached
that duty is a jury question, and will largely depend on whether he knew that Driver was a
bus driver or that Pyrib did not come with a warning of its side effects. If Dr. Ard knew
either of these facts, he was probably negligent in not warning Driver that Pyrib might make
him drowsy. Moreover, because most people drive, Dr. Ard may be negligent for failing to
warn about potential drowsiness even if he thought the Pyrib label mentioned the risk. Pat
can show that the failure to warn was an actual and proximate cause of her injuries.
(Driver’s own negligence, if any, would not exonerate Dr. Ard because it was foreseeable.)
Dr. Ard has no defenses, and Pat may recover for all of her damages.
ANSWER TO QUESTION X
Under agency rules and the doctrine of respondeat superior, the Yellow Journal is liable for
the torts committed by Roy because the reporter was acting within the scope of his
employment.
Defamation
Roy’s false statements could be found by a jury to lower Phil’s reputation in the community.
Even though the statements do not charge Phil with acts that reflect badly on his character or
integrity, the law holds that defamation may be found in statements that lead others to think
less well of Phil, such as charges that Phil was of illegitimate birth or is insane. The charges
in this case are of the same sort—suffering a seizure and hurting
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others during the seizure. Fathering a retarded child might be read to suggest that Phil was
suffering from some genetic problem that might lead others to shun or avoid him. If the jury
finds the statements actionable, there is no question about their falsity (although Phil has the
burden of proof on this issue). (Note that Phil has no cause of action for defamation of his
son.)
Because this story involves a matter of public concern, Phil must prove more than the fact
that he was defamed. The standard of liability Phil must establish depends on whether he is
a public person. Because Phil was never a government employee, he cannot be a public
official. Although the public may be interested in the work he did for Bomm-Bay and in the
accident he had there, Phil has never voluntarily brought himself to the public’s attention or
injected himself into a public controversy; thus, he is not a public figure for defamation
purposes.
As a private plaintiff, Phil is constitutionally required to prove only that Roy and the Yellow
Journal were negligent in not recognizing the falsity of their statements. Because Roy
invented the defamatory portions of his story, negligence can be easily proven. Phil may
therefore recover for any “actual injury” that he can prove to the jury. His damages may
include harm to his reputation, humiliation, or other emotional distress, and any monetary
injuries he suffered. But because the action is for defamation, he may recover only for those
injuries caused by the defamatory portions of the story—above and beyond the
embarrassment and ostracism occasioned by the true revelations.
Besides negligence, Phil should be able to show that Roy published the story with knowing
or reckless falsity. Although Roy did not know the defamatory statements were false, he did
not honestly believe they were true. This amounts to recklessness. Statements published
with knowing or reckless falsity receive no constitutional protection; thus, Phil’s damages, if
he can meet this standard of liability, will not be limited to “actual injuries.” He may recover
any damages the state law permits, including presumed and punitive damages.
Privacy
Public disclosure of private facts: A number of the facts included in the article were
intimate details of Phil’s life, and he should have no trouble establishing a prima facie case
that they were wrongfully disclosed. Phil’s impotence, loss of hair, and other impairments
are private facts—even though some persons may already know about each. A jury could
conclude that a reasonable person would find public disclosure of such facts—particularly
facts involving medical or sexual details—highly offensive. The fact of the accident itself
may be a private fact because it took place in a private area, but disclosure would not
normally be highly offensive and so is not actionable.
The Yellow Journal will point out in its defense that Phil voluntarily disclosed all the intimate
details being sued on. (The false statements in the article, although they concern private
matters, are not actionable as disclosures of private facts. Phil may recover damages caused
by them in a defamation or a “false light” action.) Normally, voluntary
506
disclosure bars any action, even when the defendant has misrepresented his identity or
promised confidentiality. An individual assumes some risk that a person he confides in is not
who he seems. In this case, however, Phil reasonably believed that his statements were
made under the legally binding doctor-patient privilege. Had Roy actually been a doctor,
Roy’s disclosure would have been actionable. Because Roy intentionally caused and knew of
Phil’s misapprehension, the consent defense fails.
The Yellow Journal will also contend that its story is privileged because it is newsworthy.
Under privacy rules, an accident involving a bacteria warfare agent is of legitimate public
interest, even when it has not been discovered for 20 years. Although Phil in no way acted
intentionally to attract public attention, his involvement in the accident makes him a public
figure (for privacy action purposes) because of its newsworthiness. Similarly, the disabilities
that Phil has developed are of public concern. Phil is apparently the only human ever to be
exposed to the bacteria, and the public is understandably interested in discovering the effects
of a powerful weapon in its government’s arsenal.
The problem is that Phil’s identity does not involve the same level of public interest. The
disclosure of newsworthy information would not have been any less effective if the Yellow
Journal had protected Phil’s anonymity. Normally the disclosure of a name is not actionable.
Although many personal and embarrassing details of Phil’s life were published, most courts
would probably deny a privacy action on the ground that use of names adds credibility and
impact to the story and should be a matter for editorial judgment alone.
If the newsworthiness defense is rejected, the Yellow Journal would try to extend the limited
constitutional holding in Cox Broadcasting Corp. v. Cohn from public records to matters of
public interest. This question was explicitly left open in Cox.
If Phil establishes liability, he may recover for any emotional distress or other damages
incurred because of the public disclosures.
False light privacy: The false disclosures about Phil, especially concerning his
temperament, placed him in a “false light.” The statements were not simply minor
inaccuracies but were so central as to make their disclosure highly offensive to a reasonable
person. The “false light” statements were disseminated to a large number of third persons, so
Phil can make out a prima facie case.
Again, the newsworthiness defense is the Yellow Journal’s best chance for success. The
statements that turned out to be false nonetheless involve newsworthy information because
they purport to describe effects of the bacteria. However, Phil may defeat the defense by
showing that the disclosures were made with knowing or reckless falsity because the First
Amendment affords no protection to such statements in tort cases. As discussed above, Phil
should be able to meet this standard because Roy did not believe the statements to be true.
Phil may recover whatever damages the state law permits.
507
Wrongful intrusion of privacy: An intentional, highly offensive intrusion into an

individual’s privacy is actionable. In this case, Roy did not enter onto Phil’s own property,
but he did gain access to an area in which Phil had a reasonable expectation of privacy. The
nature of the intrusion, with Roy falsely representing himself to be a doctor, would be highly
offensive to a reasonable person. The intrusion would be no less serious than if Roy had
bugged Phil’s room and listened in on the private conversations between Phil and his
doctors.
The only relevant defense here is consent, but as discussed above, it is likely to fail because
Roy knew that Phil was mistakenly relying on Roy’s deceptive appearance.
Although publication is not required to recover for a wrongful intrusion, some courts allow
Phil to recover damages suffered from the newspaper article as consequential damages of
Roy’s tortious intrusion. Phil may therefore recover for any physical or emotional injury
from the initial intrusion as well as for any monetary damages incurred. Courts disagree over
whether damages from the publication of the article are recoverable when the facts were
tortiously obtained. Because of the sensitive First Amendment aspects, it seems preferable to
require Phil to show an actionable publication before being allowed to recover such damages.
527
Index
A
ABATEMENT OF NUISANCE
See Nuisance
ABNORMALLY DANGEROUS ACTIVITIES
See Strict liability
ABUSE OF PROCESS, §§1791-1796. See also Malicious prosecution
ACT BY DEFENDANT
assault, §§28-31
battery, §§2-5
conversion, §217
defamation, §§1360-1361
extreme or outrageous conduct, §§80-85
false imprisonment, §55
in general, §§2, 28, 55, 1118-1121
misconduct, effect on privilege, §§274-275
misfeasance and nonfeasance, §§339-346, 572
misrepresentation, §§1624-1636
negligence, §279
nuisance, §§1118-1119
omission to act, §279. See also Negligence
reflex actions, §4
trespass to chattels, §207
trespass to land, §183
unconscious acts, §3
volition required, §§2, 28, 183, 207, 211, 279
words alone, §§29-30, 56, 80. See also Defamation
ACT OF GOD
as intervening force, §§455, 485, 489
carriers, negligence of concurring with, §499
chattels, movement of, §§246-249
threats of harm from, §41
ACTUAL CAUSE
alternative liability, §§423-432
market share liability, §§427-432
“but for” rule, §§416, 422
cause in fact, §415
concurrent liability, §§418-420, 422
defamation, §1422
defendant’s conduct as, §§415-416
jointly engaged tortfeasors, §419
multiple sufficient causes, §§421-422
plaintiff deprived of proof, §§440-441
probability of loss to plaintiff, §§436-439
risk of future harm, §§433-435
strict liability, §918
“substantial factor” rule, §§421-422
successive tortfeasors, §420
AERONAUTICS
international plane crashes, §§1319-1321
negligence may apply, §907
nuisance, flight through airspace, §201
res ipsa loquitur, §382
strict liability for ground damage, §§906, 908
trespass, flight through airspace, §§196-201
ALIENATION OF AFFECTIONS
See Interference with family relationships
ANIMALS
domestic, liability for, §§882-888
known dangerous traits, §§884, 886
normally dangerous animals, §885
unknown dangerous traits, §§887-888
vicious watchdogs, §896
invitees and licensees, injury to, §894
strict liability for, §§882-884, 886
trespassers, injury to, §§895-897
foreseeable trespassers, §897
trespassing, §882
consequences, liability for, §§882, 891
watchdog, defense of property by, §896
wild, strict liability for, §§889-892
kept under a public duty, §892
ARREST
by private citizen, §§165-166, 171, 173
entry upon land to, §178
false. See False imprisonment
force in making, §§171-177
deadly force, §§172-177
misconduct following, §179
resisting, §180
with a warrant, §§168-170
without a warrant
for felony, §165
528
for misdemeanor, §§166-167

ASSAULT
See also Battery
apprehension of battery
apparent ability to touch, §§50-51
awareness of plaintiff, §36
harm, nature of, §§38-40
imminence of harm, §§42-46
in general, §35
nature of plaintiff’s, §§47-51
source of harm, §41
threats, §§29-31, 36-46. See also Threats
battery distinguished, §37
causation, §52
character of defendant’s act, §§28-31. See also Act by defendant
criminal assault distinguished, §51
damages, §53
emotional distress compared, §§31, 39, 44, 89
intent required, §§32-33
prima facie case, §27
transferred intent, §§10, 32
ASSUMPTION OF RISK
appreciation of danger, §854
comparative negligence, relation to, §859
consortium, loss of, as defense to, §1186
contributory negligence, relation to, §§860-864
exculpatory clauses, §§842-849
adhesion contracts, §§845-848
intentional torts, §849
public policy, §§847-848
express agreement, §§842-849
firefighter’s rule, §841
general rule, §§839-841
implied acceptance of risk, §§850-857
abolition of, §§860-864
knowledge of risk, §§851-854
negligent misrepresentation, as defense to, §1676
nuisance, as defense to, §§1142-1143
primary and secondary—minority view, §§862-864
products liability, as defense to, §§951, 1059-1064
statutorily protected class, §858
strict liability
defense to, §§922-924
misrepresentation, defense to, §1676
voluntary acceptance of risk, §§855-858
warranty, as defense to breach of, §1099
wrongful death, as defense to, §1168
ATTRACTIVE NUISANCE DOCTRINE
See Trespassers
AUTOMOBILES
accident, duty to aid person involved in, §556
bailors’ vicarious liability, §§601-603
“crashworthiness,” §965
duty to maintain, §619
failure to wear seat belts in, §§535-537, 832
family purpose doctrine, §602
guests. See also Guest statutes
common law rule, §588
sharing expenses, §590
joint enterprise. See Joint enterprise
liability insurance. See Liability insurance, effect of
negligent entrustment, §§597-599
owner, vicarious liability of, §§601-603, 619
permissive use statutes, §603
recall cases, §1045
AVIATION
See Aeronautics
AVOIDABLE CONSEQUENCES
anticipatory, §§534-537
comparative negligence, under, §831
seat belts, failure to wear, §§535-537, 832
contributory negligence distinguished, §791
damages aggravated by, §§531-538
B
BAILMENTS
automobiles
contributory negligence, imputed, §811
conversion, §§223, 226-228
negligence
chattels, defective, §§604, 758
commercial bailor, liability of, §§760-761
gratuitous bailor, liability of, §759
liability of bailor to bailee, §604
liability of bailor to third persons, §§593-600, 598-599, 604
trespass to chattels, action for, §§210-211, 213-215
warranties, §1077
BATTERY
See also Assault
causation, §§17-18
damages, §§19-26
punitive damages factors, §§23-26
harmful or offensive touching, §§11-16
physicians and surgeons
consent, lack of, §112
plaintiff’s awareness, §16
products liability, §§929-930
transferred intent, §10
BURDEN OF PROOF
See Evidence
529
BUSINESS VISITORS
See Invitees
C
CARRIERS
See also Negligence
abnormally dangerous cargo, §909. See also Strict liability
duty of due care, §§290, 582-586
duty to aid passenger in peril, §§553-555
insult, liability for, §83
negligence concurring with act of God, §499
CAUSATION
See Actual cause; Proximate cause
CHARITIES
immunity from tort action, §§1248-1251
CHATTELS
See also Conversion; Products liability; Recapture of chattels; Trespass to chattels
privilege to exclude or evict trespassing, §§252-253
CHILDREN
See also Parent and child; Wrongful birth
consent to tort, incapacity to, §114
duty toward. See Trespassers, attractive nuisance doctrine
negligence
engaging in adult activity, §294
minimum age statutes, §§292-293
standard of conduct for, §§291-294
prenatal injuries, §§1188-1192
trespassers. See Trespassers
wrongful birth, §§1193-1200
wrongful death, §§1163, 1192
CIVIL RIGHTS ACT OF 1871, §§1241-1247
COLLATERAL SOURCES RULE, §§539-544, 1303, 1344-1348
COMPARATIVE NEGLIGENCE
absent parties, §822
apportionment of damages, §§815-822
avoidable consequences under, §§538, 831-832
consortium, loss of, as defense to, §1186
effect on
contribution, §1260
drunk drivers, §836
imputed negligence, §834
jury instructions, §833
rescuers, §835
punitive damages, §838
in general, §815
last clear chance doctrine under, §824
multiple defendants, §821
nuisance, §1141
partial, §§818-822
products liability, as defense to, §§951, 1057-1058
pure, §817
strict liability, as defense to, §§921, 1057-1058
wanton or reckless conduct, effect of, §§825-830
intentional act and other person’s negligence, §§827-829
reckless plaintiff, §830
warranty, as defense to breach of, §1098
wrongful death, as defense to, §§1168, 1170
CONFINEMENT
See False imprisonment
CONSENT, AS DEFENSE TO INTENTIONAL TORTS
by conduct, §102
conduct or custom, implied by, §§102-103, 237
criminal acts, to, §§115-118
duress, effect of, §108
exceeding, §105
express, §103
fraud, effect of, §§106-107
incapacity to, §114
informed, §113
in general, §§100, 237
invasion of land and chattels, §237
lack of, §100
law, implied by, §103
mistake, §§109-113
surgery, §§112-113
CONSORTIUM
See Husband and wife
CONSTITUTIONAL PRIVILEGE
See Defamation; Privacy
CONTRACT
interference with. See Interference with contract
misfeasance, §§577-579
negligence
breach of contract, relation to, §§575-579
liability of contractor to third parties, §580
nonfeasance, §576
promise, breach of as negligence, §578
tort liability to third persons, §§580-581
warranty. See Warranty, liability based on breach of
CONTRIBUTION
See also Joint torts
indemnity distinguished, §1264
joint tortfeasors, §§1258-1259
comparative negligence, impact of, §1260
negligence cases, §1259
CONTRIBUTORY NEGLIGENCE
assumption of risk, relation to, §§859-861
avoidable consequences distinguished, §791
common law—absolute bar, §§802-803
comparative negligence.
See Comparative negligence
consortium, loss of, as defense to, §§810, 1186
530
defense only to negligence, §803

defined, §791
effect of, §§802-803
imputed, §807
bailments, §811
consortium, loss of, §810
employer and employee, §808
husband and wife, §§812-814
family purpose cases, §811
recovery as community property, §814
joint enterprise, §809
wrongful death, §810
intentional torts, no defense to, §803
last clear chance doctrine, §§804-806
helpless peril, §805
inattentive peril, §806
mentally disabled, standard of conduct, §300
negligent misrepresentation, as defense to, §1675
negligent nuisance, as defense to, §1139
prima facie case, §§792-801
products liability, as defense to, §§951, 1057
standards of care, §§793-801
children, §795
emergencies, §794
in general, §793
statutory, §§798-801
strict liability, no defense to, §§920, 1054-1056
violation of statute by plaintiff, §§798-801
wrongful death, as defense to, §§810, 1168, 1170-1171
CONVERSION
bailee
misdelivery, §226
unauthorized use, §223
causation, §231
character of defendant’s act, §217. See also Act by defendant
damages, §§233-236
demand, requirement of, §227
destruction or alteration, §222
dispossession, §220
fraud, acquisition of chattel by, §220
intent, §218
invasion, sufficiency of, §§219-229
multiple conversions, §229
possession, necessity of, §230
remedies, §§232-236
stolen property bought or sold, §§224-225
surrender, refusal to, §§227-228
trespass to chattels compared, §§221, 236
COVENANT NOT TO SUE, §1257
CRIME
foreseeable criminal acts, §486
proximate cause, intervening criminal acts, §§486, 490-491
victim compensation, §§1316-1318
CUSTOM
consent by, §§102-103, 237
effect of in negligence cases, §§385-392
physicians and surgeons, §§303-310
D
DAMAGES
ad damnum clauses, §1341
additur and remittitur, §1342
arbitration of, §1351
assault, §53
avoidable consequences, §§531-538
battery, §§19-26
collateral sources, §§539-544, 1303, 1344-1348
comparative negligence. See Comparative negligence
compensatory, §§511, 1134
conversion, §§233-236
defamation, §§1423-1450, 1530, 1540-1543
economic loss rule, §§789-790
emotional distress. See Emotional distress
false imprisonment, §§77-78
general
battery, §21
libel, §1443
negligence, §§522-527
slander, §§1431-1432
injurious falsehood, §§1699-1701
interference with contract, §§1726-1728
joint and several liability, §§1330-1333
joint torts, §§1252-1261
malicious prosecution, §1775
misrepresentation, §§1654, 1678-1683
modern limitations, §§1334-1343
nuisance, as remedy for, §§1134-1136
parasitic, §763
personal property, destruction of, §528
privacy, invasion of, §§1560, 1587, 1601, 1611
products liability
intentional acts, §930
strict liability, §§1048-1053
public nuisance, necessity of particular damages, §§1110-1112
punitive
assault, §53
battery, §§23-26
caps, §§1337-1340
constitutional limitation, §1336
defamation, §§1445-1448, 1543
free speech concerns, §§98-99
intent as basis of, §9
531

misrepresentation, §1683
negligence, not recoverable for, §529
nuisance, willful, §1136
products liability, §§930, 950
reckless conduct as basis of, §530
special
battery, §22
defamation, §1430
insurer, against, §874
libel, §§1443-1444
privacy, invasion of, §§1601, 1611
slander, §§1429-1430
slander of title, §1700
slander per se, no proof required, §§1434-1442
trade libel, §1701
trespass
to chattels, §215
to land, §§204-205
tavernkeepers, §§645-649
warranty, breach of, §1097
wrongful death, §§1158-1167
DANGEROUS THINGS AND ACTIVITIES
DEATH
See Survival of tort actions; Wrongful death
DECEIT
See Misrepresentation
DEFAMATION
basis for liability, §§1353-1358
broadcasting
libel or slander, §1427
political broadcast, §§1494-1495
burden of proof, §§1414-1415, 1523, 1539
causation, §1422
colloquium, §§1397-1399
community standards, §1383
consent as defense to, §1451
constitutional privileges
damages, limitations on, §§1446-1448, 1530, 1540-1543
First Amendment, §§1354, 1388, 1410, 1413-1414, 1446, 1450, 1503, 1528
Gertz v. Robert Welch, Inc., §§1446, 1504, 1512, 1516, 1531-1536, 1541, 1543
knowing or reckless falsity, §§1479, 1517-1530, 1532, 1543
New York Times Co. v. Sullivan, §§1497, 1503-1504, 1508, 1517-1518, 1523, 1530, 1537, 1543
officers and candidates, §§1460, 1483, 1494-1495
private persons, §§1530-1543
public concern, matters of, §§1446, 1448, 1501-1502, 1532-1539
public figures, §§1505, 1512-1530
public officials, §§1413, 1508-1511, 1517-1530
scope of, §§1503-1543
corporations, defamation of, §1400
damages
emotional, §1433
general, §§1431-1432
in general, §1423
libel, §§1443-1448
private persons, §§1533-1534, 1540-1543
public figures, §1530
punitive, §§1445-1448, 1543
slander, §§1429-1442
special, §1430
dead, defamation of the, §§1402-1404
defined, §§1380-1395
emotional distress, infliction of, interrelation with, §§1356, 1433
fact, statement of, §§1416-1421
falsity, §§1409-1421
burden of proof, plaintiff’s, §§1414-1415
defendant’s knowledge of, §1410
opinion vs. facts, §§1416-1419
public debate, §1420
truth is complete defense, §§1411-1413, 1452
group defamations, §§1401, 1405-1407
harm to reputation, §§1380-1395
“libel-proof plaintiffs,” §§1387-1388
implication and insinuation, §§1393-1395
inducement, §1395
innocent, §1394
innuendo, §1395
intent required, §1362
interpretation, §§1389-1407
labor disputes, §1496
libel
broadcasting, §§1427-1428
defined, §1424
per quod, §1444
proof of general damages not required, §§1443-1444
proof of special damages required, §§1429, 1443-1444
retraction, §1449
slander distinguished, §§1425-1426
negligence, liability based on, §§1362, 1532, 1536
“of and concerning” the plaintiff, §§1396-1407
opinion, statement of, §§1417, 1419
privacy, invasion of, interrelation with, §1356
privilege
absolute, §§1453-1461
abuse of conditional, §§1475-1482
conditional, §§1462-1482
532
consent, §1451
constitutional. See constitutional privileges, above
excessive publication, §§1480-1482
executive communication, §§1460, 1463, 1486
fair comment, §§1483-1485
federal preemption, §§1493-1497
husband and wife, §1461
judicial proceedings, §§1456-1459
labor disputes, §1496
legislative proceedings, §§1454-1455
loss of privilege, §§1475-1482
malice, §§1445, 1453, 1478-1479, 1517-1530
motive, §1478
political broadcasts, §§1494-1495
private protectable interests, §§1464-1472
public interest, §§1473-1474
records, §§1486-1492
self-defense, §1470
statutory, §§1493-1497
truth, §1452
publication
disseminators, §§1376-1379
distributors, §1368
intent or negligence, §1362
intracorporate publication rule, §1359
manner of, §§1360-1361
original publishers, §§1367-1369
overheard communication, §1364
republishers, §§1370-1375
defenses, §§1498-1501
legal duty to, §1375
to third person required, §§1357-1359
vicarious liability, §1369
related torts, §1356
retraction, §1449
slander
business, profession, or office, §§1438-1439
crime, imputation of, §§1435-1436
defined, §1425
disease, imputation of, §1437
emotional damages, §1433
general damages, §§1431-1432
impotency, imputation of, §1441
libel distinguished, §1426
per se, no proof of damages, §§1434-1442
retraction, §1449
special damages, §1430
unchastity, imputation of, §§1440-1442
SLAPP suits, §1502
truth as defense to, §§1411-1413, 1452
Uniform Single Publication Act, §1621
unintended, §§1364, 1399
who may be defamed, §§1400-1407
DEFENSE OF OTHERS
force, use of, §§137, 141
mistake, §§139-141
privilege, in general, §137
who may be defended, §138
DEFENSE OF PROPERTY
See Property, defense of
DETENTION FOR INVESTIGATION
See Shopkeeper’s privilege
DIRECT CAUSATION
See Proximate cause
DISCIPLINE, PRIVILEGE OF, §181
DISPARAGEMENT
See Injurious falsehood
DOGS
See Animals
DOMESTIC RELATIONS
See Husband and wife; Parent and child
DRAM SHOP ACTS, §§637-641, 1315
See also Intoxication; Negligence Social hosts, §§646-648
DURESS, CONSENT OBTAINED UNDER, §108
DUTY
See Negligence
E
ECONOMIC RELATIONS
See Interference with economic relations
EMERGENCY
See also Necessity to invade land or chattels
effect of in negligence cases, §§551-556
medical treatment in, §§314, 560-561, 566, 1314
EMOTIONAL DISTRESS, INTENTIONAL INFLICTION OF
assault, distinguished from, §§31, 39, 44, 89
damages, §§98-99
defamation, interrelation with, §§1356, 1433
defenses, §§94-97
extreme or outrageous conduct, §§80-85, 91
harassment, claims of, §84
insult and indignity
carriers and public utilities, §83
general rule, §80
petty insults, §82
no transferred intent, §88
physical injury, requirement of, §§90-91
modern view—distress only, §91
privacy, invasion of, interrelation with, §§1356, 1619
reckless conduct, §§86-87
533
severe emotional distress required, §§92-93

eggshell psyche rule, §93
special susceptibility of plaintiff, §87
third persons, liability to, §85
words may be sufficient, §§31, 80
EMOTIONAL DISTRESS, NEGLIGENT INFLICTION OF
acts directed at third person, §§771-779
bystander recovery, §§771-779
dead bodies, negligence toward, §770
false death reports, §770
impact, actual or threatened, §§764-769
AIDS cases, §768
mere exposure, §767
intentional infliction compared, §766
nature of duty owed, §762
parasitic damages for, §763
pet, death of, §781
physical manifestation, requirement of, §§764-769, 782-784
property, damage to, §§779, 784
recovery without impact, §764
severe emotional distress required, §§785-788
eggshell psyche rule, §§786-788
EMPLOYER AND EMPLOYEE
contributory negligence, imputed, §§807-808
duty of care to employee, §553
independent contractors. See Independent contractors
interference with relation. See Interference with contract
liability based on employer’s negligence, §§605-608
vicarious liability
intentional torts, §§611-612
respondeat superior, §§609-613
scope of employment, §§610-611
workers’ compensation, §§1272-1284
EVIDENCE
burden of proof
alternative liability, §§423-432
apportionment of damages, §532
colloquium, §1397
defamation per quod, §1444
plaintiff deprived of proof, §§440-441
causation in fact, proof, §§415-441
expert testimony, necessity of in malpractice, §§367-368
negligence
circumstantial evidence, §§350-351
direct evidence, §§348-349
presumptions, §§382-384
proof, §§348-351
res ipsa loquitur. See Res ipsa loquitur
spoilation of, §§1788-1790
F
FALSE IMPRISONMENT
arrest as, §§74-75
awareness of, §64
barriers to escape, §§71-73
causation, §76
confinement, §§60-75
elements constituting, §§60-63
how caused, §§65-75
damages, §§77-78
means of escape available, §§62-63
threats, §§67-70
FAMILY RELATIONS
FAULT
FEDERAL TORT CLAIMS ACT, §§1231-1234.
See also Immunities
“FIREFIGHTER’S RULE,” §841
See also Assumption of risk
FORESEEABILITY
See Negligence; Proximate cause
FRAUD
See Misrepresentation
G
GOVERNMENTAL IMMUNITIES, §§1222-1247
See also Immunities
GUEST STATUTES, §§589-590
See also Negligence
H
HUSBAND AND WIFE
alienation of affections, §§1201-1203
automobiles, family purpose doctrine, §602
consortium, loss of, §§1172-1187
assumption of risk as defense to, §1186
common law, §§1172-1174
comparative negligence as defense to, §1186
contributory negligence
as defense to, §1186
imputed, §810
death of spouse compared, §1179
husband’s action, §§1172, 1175
joinder requirement, §1187
negligent spouse, no recovery against, §1178
scope of, §§1176-1179
wife’s action, §§1174-1175
criminal conversation, §§1207-1208
534
defamation, immunity in, §1461

emotional distress claims, §1210
immunity in tort actions between, §§1211-1213
loss of services. See consortium, loss of, above
I
IMMUNITIES
armed forces, §1233
charities, §§1248-1251
Federal Tort Claims Act, §§1231-1234
governmental, §§1222-1247
government contractors, §1234
husband and wife, §§1211-1213
liability insurance and, §1218
municipal corporations, §§1224-1227
governmental functions, §§1224, 1226
proprietary functions, §§1224, 1227
parent and child, §§1214-1220
public officers
agents, §§1232, 1246-1247
Civil Rights Act of 1871, §§1241-1247
discretionary acts, §1239
ministerial acts, §§1238, 1240
sovereign, §§1222, 1228
superior and inferior officers, §§1236-1237
IMPUTED NEGLIGENCE
See Contributory negligence; Vicarious liability
INCOMPETENTS
consent to tort, incapacity to, §114
contributory negligence of, §300
liability for acts by, §5
standard of conduct, §§299-300
INDEMNITY
contribution distinguished, §1264
culpability, differing degrees of, §§1265-1266
in general, §1262
physician’s negligent aggravation, §1267
vicarious liability, applied to, §1263
INDEPENDENT CONTRACTORS
apparent authority, §617
assumption of liability by building contractor, §626
collateral negligence, §627
health care providers, §§621-623
inherently dangerous activities, §625
negligence of the employer, §614
nondelegable duties, §§618-626
vicarious liability for torts, §§614-627
INDIRECT CAUSATION
See Proximate cause, indirect causation
INDUCING BREACH OF CONTRACT
See Interference with contract
INFANTS
See Children
INJURIOUS FALSEHOOD
business interests, as to, §§1688-1691
causation, §1699
competition, §§1706-1709
constitutional protection, §1709
damages, §§1699-1701
disparagement of property, §§1688-1691
defamation distinguished, §§1693-1694
in general, §1684
intent, necessity of, §§1695-1698
judicial proceedings, §1705
motive immaterial, §1696
nonbusiness relations, §1692
privileges, §§1704-1709
proof of falsity, §1685
protection of defendant’s interests, §§1706-1709
publication required, §§1686-1687
scienter, §1697
slander of title, §§1689, 1700
special damages required, §1699
trade libel, §§1690-1691, 1701
truth as defense to, §1703
INSANITY
See Incompetents
INSULTS
See also Emotional distress, intentional infliction of
carriers, §83
liability for, §82
public utilities, §83
INSURANCE
See Liability insurance, effect of
INTENT
abuse of process, §1791
assault, §§32-34
battery, §§6-10
consequences substantially certain to follow, §7
conversion, §218
emotional distress, §§86-89
interference with contract, §§1724-1725
malice distinguished, §9
misrepresentation, §§1637-1641
motive immaterial to, §9
nuisance, §§1118-1121
privacy, invasion of, §§1553-1555
punitive damages based on, §§9, 23
test of, §§7, 33
transferred, §§10, 34, 57, 88, 187, 209
trespass to land, §§184, 187
535
INTENTIONAL TORTS
See Assault; Battery; Conversion; Emotional distress, intentional infliction of; False imprisonment; Trespass to
chattels; Trespass to land
INTERFERENCE WITH CONTRACT
breach not required, §1717
burden of proof, §1740
causation, §1726
collective action, §1718
damages, §§1726-1728
defendant’s interest, protection of, §§1733-1736
employer and employee, §§1722, 1725
illegal contracts, §1713
illegal means, §§1737-1739
intent to interfere, §§1716, 1724-1725
nature of contract, §1712
negligent interference, §1724
privilege, §§1729-1739
public interest, action in, §§1731-1732
related actions, §§1721-1723, 1739
terminable at will, §§1715, 1723, 1736
unenforceable contracts, §1714
who may be sued, §§1719-1723
INTERFERENCE WITH ECONOMIC RELATIONS
See also Interference with contract; Interference with prospective advantage
in general, §1710
labor unions, §1718
INTERFERENCE WITH FAMILY RELATIONSHIPS
common law, §1201
parent-child claims, §§1204-1206
criminal conversation, §§1207-1208
custodial rights, interference with, §1209
INTERFERENCE WITH PROSPECTIVE ADVANTAGE
in general, §§1710, 1741
intentional interference, §§1741-1750
prima facie case, §§1742-1743
negligent interference, §§1751-1757
noncommercial expectancies, §§1748-1750
privilege, §§1745-1747
INTERVENING FORCES
See Proximate cause
INTOXICATION
as negligence, §§298, 530
Dram Shop Acts, §§637-642, 1315
liability of social host, §§646-648
liability of tavernkeeper, §§636-649
as land occupier, §649
to patron, §§636-645
to third parties, §§636-644
standard of conduct for voluntary, §298
INVASION OF PRIVACY
See Privacy
INVITEES
animals, strict liability for, §887
area of invitation, §703
business visitors, §§701-703
change of status, §703
chattels supplied to, §710
defined, §§696-699
duty required toward, §§704-710
duty to inspect, §§704-706
entrants on another’s land, duty of, §§722-724
liability of occupier to, §§696, 718
liability of third person to, §§722-723
minority view—status irrelevant, §§718-720
obvious dangers, §721
protection against third person crime, §§707-709
public entrants, §§711-716
public invitees, §§697-699
recreational lands, §717
strict liability to, §887
J
JOINT ENTERPRISE
automobile trips, §§630-632
common purpose, §629
extension beyond business purposes, §632
mutual right of control, §629
vicarious liability, §628
JOINT TORTS
concurrent liability, §§418-420, 422
contribution, §§1258-1261
comparative negligence, impact of, §1260
indemnity distinguished, §1264
negligence cases, §1259
covenant not to sue, §1257
indemnity, §§1262-1266
joint and several liability, §§1330-1333. See also Damages
joint tortfeasors, §§1252-1253
judgment, §1254
release of one releasing others, §§1255-1257
satisfaction, §1254
K
KNOWLEDGE
assumption of risk, §851
defamation. See Defamation
last clear chance doctrine, §§804-806
lessors of defective condition, §743
special knowledge and skills, §§301-319
special vulnerability of plaintiff, §787
536
L
LAND, OWNERS AND OCCUPIERS OF
See also Property, defense of; Recovery of land
animals, duty as to. See Animals
defined, §651
duty to persons outside land, §§653-659
foreseeable risk, §652
general rules, §650
invitees. See Invitees
landlord and tenant. See Landlord, duties of
licensees. See Licensees
minority view—reasonable person, §§718-720
public entrants, §§711-716
public premises, duty to maintain, §620
sellers of land. See Sellers of land
straying from highway, liability to one, §§258-261
tavernkeepers, §649
trespass. See Trespass
LANDLORD, DUTIES OF
agreement to repair, §§738-744, 750
negligent repair, §738
concealment of condition, §732
control of common areas, §§725, 751-752
foreseeable criminal acts, §752
dangerous activity by tenant, §753
latent dangers, §§735-736, 748-749
liability to third persons, §§745-750
limited, §725
patent dangers, §734
trespass to land, action for, §§194-195
to lessee
after transfer, §§737-744
danger at transfer, §§733-736
to persons outside land, §§726-732
LAST CLEAR CHANCE
See Contributory negligence
LEGAL AUTHORITY
See Arrest
LIABILITY INSURANCE, EFFECT OF
collateral sources rule, §§539-544
statutory restrictions, §§1344-1348
“no fault” insurance, §§1285-1296
black lung compensation, §1323
damages recoverable, §1291
essential provisions, §§1287-1290
“first-party” basis, §§877-879, 1290
impact of, §§1292-1295
nuclear accidents, §1322
scope of coverage, §1289
recovery of damages and, §§539-544
subrogation, §§541-544
“third-party” system, §§865-879
cooperation clauses, §870
“first party” insurance compared, §§877-879
in general, §§865-866
insurer
direct actions against, §868
liability, §§867-869
third persons, no duty to, §876
reckless conduct, §869
settlements, §§871-875
breach of duty, §§873-875
duty of good faith regarding, §§871-872
LIABILITY WITHOUT FAULT
LIBEL
See Defamation
LICENSEES
animals, strict liability for, §893
automobile guests, §588
defined, §§689-691
disclosure of known dangerous conditions, §§692-694
duty required toward, §§692-695
liability of occupier to, §§692-695, 719
persons included, §§690-691
private entrants, §712
public entrants, §§711, 713-716
social guests, §690
strict liability to, §894
LIMITATIONS, STATUTE OF
strict tort liability, §1067
warranty actions, §1106
LOSS OF CONSORTIUM
M
MALICE
assault, §33
defamation
conditional privilege in, §§1478-1479
meaning in, §§1517-1521
injurious falsehood, §1696
intent distinguished, §9
malicious civil proceedings, §1778
punitive damages in cases of, §§9, 1445, 1519
MALICIOUS PROSECUTION
abuse of process, §§1791-1796
537
who may sue, §1796

causation, §1775
civil proceedings, §§1778-1786
nature of proceedings, §§1779-1782
prior verdict, §1783
damages, §1775
false imprisonment distinguished, §1760
guilt as defense to, §1776
improper purpose, §§1768, 1773-1774
in general, §1759
instigation of proceedings, §§1761-1763
malicious defense, §1787
privileges, §1777
probable cause, lack of, §§1766-1772
advice of counsel, §1772
disposition of case as evidence, §§1769-1771
improper purpose, §1768
objective standard, §1767
spoilation of evidence, §§1788-1790
termination in favor of plaintiff, §§1764-1765
MANUFACTURERS
See Products liability
MASS MEDIA
MASTER AND SERVANT
See Employer and employee
MEDICAL MALPRACTICE, §§1297-1304
MENTAL DISTRESS
See Emotional distress
MISFEASANCE
See Act by defendant; Contract; Negligence
MISREPRESENTATION
advertisements, §1052
damages, measure of, §§1654, 1678-1683
deceit. See intentional misrepresentation, below
defenses, §§1675-1677
economic interests protected, §1622
exculpatory contracts, §1677
innocent. See strict liability for, below
intentional misrepresentation, §§1623-1654
burden of proof, §1639
by conduct, §1628
causation, §1642
concealment, active, §1629
continuous deception, §1641
damages, necessity of, §1654
failure to disclose as, §§1630-1636
intent to deceive, §§1637-1641
materiality, §§1624-1627
negligence distinguished, §1659
nondisclosure. See Nondisclosure
promises, §§1626-1627
punitive damages, §1683
reliance, §§1640-1641, 1643-1653
intent to induce, §1640
justifiable, §§1643-1653
on statements of fact, §§1645-1646
on statements of law, §§1652-1653
on statements of opinion, §§1647-1651
scienter, §§1637-1638
substantial factor, §1642
negligent misrepresentation, §§1655-1670. See also Actual cause; Negligence; Proximate cause
business capacity, §§1656, 1659
contributory negligence as defense to, §1675
deceit distinguished, §1661
duty of due care, §1659
exculpatory contracts as defense to, §1677
persons protected, §§1659-1669
reliance, justifiable, §1670
statutory duties, §1669
pecuniary damages, limited to, §§1622, 1674
strict liability for, §§1671-1674. See also Products liability; Strict liability
express warranty, breach of, §1672. See also
Warranty, liability based on breach of physical injuries, §1674
products liability compared, §1674
MISTAKE
consent given under, §§109-113
defense of others under, §§139-141
recapture of chattels under, §151
self-defense under, §120
shopkeeper’s mistake, §164
trespass to land, §§243, 251
MORAL RESPONSIBILITY
See Proximate cause
MOTIVE
in tort law, §9
nuisance, as factor in, §§1118-1121
MUNICIPAL CORPORATIONS
Civil Rights Act of 1871 governmental functions, §§1225-1226, 1241-1247
immunity, §§1224-1230.
See also Immunities proprietary functions, §§1224, 1227
N
NAMES, APPROPRIATION OF, §§1590-1601
See also Privacy
538
NECESSITY TO INVADE LAND OR CHATTELS
damages inflicted under
private necessity, §§266-267
public necessity, §260
force used under, §§257, 265
media not privileged, §262
private necessity, §§263-267
public necessity, §§254-261
NEGLIGENCE
See also Actual cause; Proximate cause; Vicarious liability
acts and omissions, §§279, 347
assumption of risk. See Assumption of risk
automobiles. See also Automobiles
guests, §§587-590
bailments, §§593-604
balancing risk against utility of conduct, §§352-359
beginners, standard of conduct, §302
breach of duty, §347
determined by judge vs. jury, §§360-362
proof of, §§348-351
res ipsa loquitur, §363-384. See also Res ipsa loquitur
unreasonable conduct, §§352-359
burden of proof. See Evidence
causation. See Actual cause; Proximate cause
children
engaging in adult activity, §294
minimum age, §§292-293
circumstantial evidence of, §§350-351
comparative. See Comparative negligence
contract
interference with, §§1724-1725
liability to third parties, §§580-581
misfeasance, §577
nonfeasance, §576
relation to gratuitous promises, §575
contractual relationships, §577
contributory. See Contributory negligence
controlling conduct of others, §§557, 567-571, 591-592
custom, §§385-392
damages
amount recoverable. See Damages
necessity of, §510
direct evidence of, §349
duty of due care, general, §277
beginners, §302
dangerous substances or instrumentalities, §341
determined by court, §280
failure to warn, §343
foreseeability of plaintiff, §§320-332
limitations on, §§333-338
misfeasance and nonfeasance, §§339-346
act vs. omission, §§339-340
creation of risk, §342
negligent entrustment, §341
negligent misrepresentation, §§344-345
Palsgraf v. Long Island Railroad, §§321-326
profession or trade, §§303-319
community standard, §304
proximate cause compared, §509
reasonable person standard, §§281-291
children, §291
common carriers, §290
emergencies, §§286-287
objective test, §§282-283
rescuers, §§327-332, 343, 551
special duty distinguished, §288
special relationships, §§553, 557
to whom owed, §§320-346
unforeseeable plaintiff, §§320-332
duty of due care, special, §277
auto driver, liability to guest, §§587-590
carriers, §§290, 582
to aid passenger, §553
to protect passengers from harm, §§582-586
controlling conduct of others, §§557, 567-571, 591-592
bailor-bailee, §§593-604
independent contractors, §§614-627
master-servant, §§605-613
parent-child, §§633-635
partners and joint venturers, §§628-632
emergency, §§551-566
employer to employee, §553
family, §553
general duty, in addition to, §545
Good Samaritan obligation, §§560-566, 1314
governmental entities, §§569-570
landowners and occupiers. See Land, owners and occupiers of
peril, to aid those in, §§551-566, 1313
prevention of harm, §§567-570
private enforcement action, §§548-549
promise to aid, §§560-566, 572-574
abandonment, §561
statute, imposed by, §§546-550, 556-557, 566, 570, 1313-1315. See also Statute, violation of
tavernkeepers, §§636-649, 1315
voluntary assumption of care, §568
emergency, §§286-287, 551-566
employers. See Employer and employee
employers of independent contractors, §§614-627. See also Vicarious liability
gratuitous promises, §§572-574
intoxication. See Intoxication
invitees. See Invitees
539
joint enterprises, §§628-632

landlord and tenant.
See Landlord, duties of lessors, repairs made by, §738
licensees.
See Licensees mental deficiency, standard of conduct, §§299-300
misfeasance, liability for, §§339-346, 572-573, 577-580
misrepresentation. See Misrepresentation
nonfeasance, liability for, §§339-346, 572, 576
nuisance predicated on, §§1118-1120
parental liability, §§633-635. See also Vicarious liability
per se, §§395, 546-550, 644. See also Statute, violation of
physically disabled, standard of conduct, §§295-298
voluntary intoxication compared, §298
physicians and surgeons
community standard, §§306, 308-309
consent in medical treatment, lack of informed, §§311-319
exceptions, §§313-316
failure to warn, §§558-559
Good Samaritan statutes, §§560-566, 1314
national standard, §307
statute of limitations, §§1268-1271
prenatal injuries, liability for, §§1188-1200
products liability. See Products liability
proof, §§348-351
proximate cause. See Proximate
cause recklessness. See Reckless conduct
rescuers, duty owed to, §§327-332
special knowledge and skills, §§301-319
beginners, §302
children, §§291-294
circumstances considered, §284
custom, effect of, §§385-392
intoxication, voluntary, §298
mentally impaired, §§299-300
physically disabled, §§295-298
statute, compliance with as due care, §§393-414, 545. See also Statute, violation of
statute of limitations, §§1268-1271
trespass to land, §185
vicarious liability. See Vicarious liability
violation of statute. See Statute, violation of
voluntary aid, §§560-566, 568
willful and wanton conduct. See Reckless conduct
NEWSPAPERS
NONDISCLOSURE
See also Misrepresentation
ambiguous statements, §1633
confidential relation, §1632
duty to disclose, physicians’, §§311-319, 557-559
lessors, §§728, 735, 747
new information, §1634
reliance, §1635
vendors, §1636
NONFEASANCE
See Act by defendant; Contract; Negligence
NUISANCE
abatement, §§268-273, 1137
abnormally dangerous activity as, §§1120, 1141
aesthetic considerations, §§1126-1127
funeral homes, §1127
assumption of risk as defense to, §§1142-1149
balancing harm vs. interests, §1124
business interest, interference with, §1117
coming to the nuisance, §§1128, 1144-1149
comparative negligence, §1141
consent, §1143
contributory negligence, §§1121, 1138-1141
damages as remedy for, §§1134-1136
continuing nuisance, §1135
injunction, relief by, §1134
negligence and, §1120
possession, necessity of, §§1115-1116
private nuisance, §1108
trespass distinguished, §1109
privilege to abate, §§268-273, 1137
demand required, §270
extent of, §272
owner or possessor, §269
public nuisance compared, §273
self-help, §1137
public nuisance, §§1110-1112
abatement of, §273
environmental damage, §1112
fast food, §1113
handguns, §1113
standing to sue, §1111
reasonable use, §§1123-1125, 1130-1131
aesthetics, §§1126-1127
coming to the nuisance, §1128
factors affecting, §1125
zoning ordinances, §1129
remedies, §§1134-1137
self-help, §1137
strict liability and, §1120
substantial interference, §§1122-1123, 1130-1131
unreasonable interference, §§1122, 1124-1129
zoning, effect of, §1129
540
O
OFFICERS
See also Arrest
defamation, privileges in
executive communications, §1460
judicial proceedings, §§1456-1459
legislative proceedings, §§1454-1455
immunities of
arrests, §§165-168, 178
discretionary acts, §1239
ministerial acts, §§1238, 1240
superior and inferior officers, §§1236-1240
invitees, §§711-716, 718-719
licensees, §§713-716, 718-719
trespass ab initio, §178
OWNERS AND OCCUPIERS OF LAND
See Land, owners and occupiers of
PQ
PARENT AND CHILD
automobiles, family purpose doctrine, §602
consortium, loss of, §§1173-1174, 1181-1187
child cannot recover, §§1174, 1185
defenses to, §1186
joinder requirement, §1187
custody, intentional interference with, §1209
discipline, §181
duty to control conduct of child, §§633-634
immunity in tort actions between, §§1214-1220
injury to parent, §§1174, 1185
loss of services. See consortium, loss of, above
negligence of parent, §635
vicarious liability for torts, §§633-634
wrongful birth, §§1193-1200
wrongful death, §§1163, 1192
PERIL
See also Negligence
contributory negligence and, §794
duty to aid those in, §§327-332, 553-571, 1313
emotional distress at peril to another, §§771-779
“helpless,” §805
“inattentive,” §806
PHYSICIANS AND SURGEONS
battery, §§112, 311-319
duty to disclose, §§311-319, 1046-1047
prescriptions, §§1046-1047
duty to warn others, §§557-559
emergency, Good Samaritan statutes, §§560-566
indemnity from, §§1265-1266
informed consent, §§311-318
malicious prosecution theory, §1784
malpractice
in general, §§1297-1304
statute of limitations, §1299
mass immunization, product liability, §1047
statute of limitations, §§1268-1271, 1299
negligent aggravation, §1267
POSSESSION
conversion, §230
trespass to land, §§190-200
PRESUMPTIONS
PRIVACY
appropriation of name or likeness, §§1590-1601
celebrity’s right of publicity, §§1595-1596, 1617-1618
consent as defense, §1593
damages, §1601
extension of protection, §1594
newsworthiness as defense, §§1598-1600
unauthorized use, §§1591-1594
constitutional privilege, §§1561, 1584-1586, 1599
dead persons, §§1613-1618
emotional distress, infliction of, interrelation with, §§1569, 1619
false light, §§1602-1611
damages, §1611
defamation compared, §§1606, 1609
falsity, §1605
publication required, §1604
intrusions into private life or affairs, §§1544-1561
consent as defense, §§1558-1559
constitutional protection, §1561
corporations, no right to, §1547
damages, §1560
highly offensive, §1552
intent, §§1553-1555
protected areas, §§1545-1547
trespass compared, §1550
private facts, §§1562-1589
consent as defense, §§1580-1583
damages, §1587
fault, §1577
highly offensive publication, §1568
involuntary public figures, §§1567, 1574-1575
media privilege, §§1584-1586
private facts defined, §§1563-1567
541
public disclosure required, §1569

voluntary public figures, §§1566, 1572-1573
related torts, §§1619-1621
survival of action, §§1613-1618
third persons, privacy rights of, §§1612-1618
Uniform Single Publication Act, §1621
PRIVILEGED INVASIONS OF PERSONAL INTERESTS
See Arrest; Consent; Defense of others; Property, defense of; Recapture of chattels wrongfully withheld;
Recovery of land; Self-defense; Shopkeeper’s privilege
PRIVILEGED INVASIONS OF PROPERTY
See also Necessity to invade land or chattels; Recapture of chattels as defense to invasion of property;
Trespass, chattels trespassing
defendant’s misconduct, effect of, §§274-275
PRIVITY
See Products liability; Warranty, liability based on breach of
PRODUCTS LIABILITY
in general, §925
intentional acts, liability based on, §§929-930
damages, §930
market share liability, §§427-432
negligence, liability based on
assumption of the risk as defense to, §951
builders, §§936, 939
bystanders, §937
care required, §§943-948
comparative negligence as defense to, §951
concealment of known defects, §947
concurrent duties, §§943-948
contributory negligence as defense to, §951
damages, §§949-950
dealer. See intermediate party, below, this section
defects
design, §§935-936
manufacturing, §§925-926
defendants liable, §§925, 943-948
foreseeability of harm, §933
in general, §§925-928, 932
intermediate party
duty to inspect, §§944-947
negligence of, effect, §946
omission to act, §§947-948
MacPherson v. Buick Motor Co., §§933-934
privity, §§932-934
products made by others, §§940-941
property damage, §938
proving negligence, §942
real property, defects in, §939
scope of, §§934-942
strict liability in tort
abnormal reactions, §§1032-1034
advertisers, §1006
assemblers of parts, §997
assumption of risk as defense to, §§1059-1064
auctioneers, §1007
bailors, §§994-995
burden of proof, §§1035-1036
circumstantial evidence of “defect,” §1036
comparative negligence as defense to, §§1057-1058, 1064
contractors, §§998, 1014
contributory negligence as defense to, §§1054-1056
“crashworthiness,” §965
“danger,” natural vs. unnatural, §§980-982
defects
approaches, §966
consumer expectation, §§969-975, 985, 1023-1026
“defect” alone, §1027
risk/utility test, §§967-968, 972-974, 984, 1026
unreasonable danger, §§1023-1026
requirement of, §§957-958, 1022
types
design, §§961-978
manufacturing, §960
warnings, inadequate, §§979-990
defendants liable
commercial suppliers, §§992-1003
franchisors, §1002
noncommercial suppliers, §§1004-1007
successors, §999
disclaimers, effect of, §§1065-1066
economic losses, recovery for, §§1050-1053
elements of, §957
federal preemption, §1068
foreseeability of harm, §§976-977
handguns, §§964, 974
inadequate warning, §§979-990
in general, §952
intervening causes, effect of, §§1043-1047
latent defects, §§1024-1026, 1060-1064
lessors, §§994-996
liability not absolute, §§957-958
misrepresentation, §1052
misuse, §§1028-1029, 1031, 1056
modifications, §1030
patent defects, §§1024-1026
personal injuries or death, recovery for, §1048
plaintiffs protected, §§1008-1011
prescription drugs, §§986, 990, 1046
“products”
blood exception, §1020
defective only, §§957-958, 1022
542
defined, §1012
in their natural state, §1013
manufactured by others, §997
services and, §§1015-1021
stream of commerce, §1021
proof, §§1035-1047
property damage, recovery for, §1049
protected parties
business entities, §1011
bystanders, §1009
consumer or ultimate users, §1008
passengers, §1008
rescuers, §1010
public policy, §§953-956
real property, defects in, §1014
recalls, §1045
scope of, §§991-1053
sellers of, §§993-996
used products, §§1000-1001
services, §§1015-1021
statute of repose, §1307
statutory limitations on, §§1305-1312
successors to manufacturers of defective products, §999
unavoidably dangerous products, §§983-988
unforeseeable danger of harm, §§976-977
discovery of danger, §978
vaccines, §§1047, 1312
warnings, §§979-990, 1044-1047
assumption of the risk, §§1060-1061
bulk suppliers, §990
inadequate, §§979-990
third parties, injuries to, §§1044-1047
who must receive, §§989-990
warranty, liability based on breach of. See Warranty, liability based on breach of
PROPERTY, DEFENSE OF
See also Recapture of chattels as defense to invasion of property; Recovery of land
apparent necessity, §142
mechanical devices, §§143-144
nondeadly force only, §142
privilege of, in general, §142
threats privileged, §145
PROXIMATE CAUSE
See also Damages; Negligence
Andrews factors, §449
burden of proof. See Evidence
defamation, §1422
direct causation, §§453, 461-472
defined, §453
foreseeable results, §§461-466
indirect causation distinguished, §§454-456
no intervening forces, §§453, 457-459
unforeseeable results, §§467-472
directness/remoteness test, §446
duty of care compared, §§451, 509
foreseeability. See intervening forces; unforeseeable consequences; both below
foreseeability test, §445
highly extraordinary consequences, §§464-466, 485, 489-493, 505
indirect causation, §§454-460, 473-500. See also intervening forces, below
defined, §454
direct causation distinguished, §453
intervening forces
act of God, §§455, 485, 489
acts not constituting, §§457-459
criminal acts, §§486, 490-491, 506
defined, §455
foreseeability, §§444-449, 460, 463-469, 478-486, 488, 497, 500, 504-509
foreseeable results of unforeseeable, §§474-475, 488-496
unforeseeable results of foreseeable, §497
unforeseeable results of unforeseeable, §§498-499
intervening forces, dependent
checking forces, §§479-480
escape forces, §482
in general, §478
normal responses, §§479-484
rescue forces, §§481, 493
response forces, §483
suicide, §483
intervening forces, independent
criminal acts, §§486, 490-491, 506
foreseeability, §§485-486
negligent acts, §487
risk rule, §447
substantial factor test, §448
third person’s omission to act, §§494-496
unforeseeable consequences
direct causation, §§462-466
limitation of liability to risk, §§464-466
Polemis case, §469
“thin-skulled plaintiffs,” §§471-472
unforeseeable results, §§467-472, 497-500
unusual sequences, §§464-466, 468-470
Wagon Mound case, §470
unforeseeable plaintiff, §§501-509
PUBLIC OFFICERS
See Officers
PUNITIVE DAMAGES
See Damages
543
R
RECAPTURE OF CHATTELS AS DEFENSE TO INVASION OF PROPERTY
See also Property, defense of
act of God, §§246-249
chattel owner at fault, §§238, 245, 251
defendant’s misconduct, effect of, §§274-275
landowner at fault, §§238-244, 251
demand required, §240
extent of privilege, §§242-244
force, use of, §244
mistake, §§243, 251
reasonable entry, §241
mistake, §251
third party at fault, §§238, 250
RECAPTURE OF CHATTELS WRONGFULLY WITH-HELD
See also Shopkeeper’s privilege
no tortious dispossession, §§156-157
conditional sales contract, §157
privilege of, in general, §§150, 156
tortious dispossession, §§150-155
demand, §152
fresh pursuit, §153
mistake, §151
nondeadly force, §150
right to immediate possession, §151
transfer to innocent person, §155
RECKLESS CONDUCT
as intervening force, §480
emotional distress, intentional causing of, §§86-88
liability for under guest statutes, §589
punitive damages, as basis for, §530
rescuers, §§331, 493
RECOVERY OF LAND
See also Property, defense of
no force, majority view, §146
reasonable nondeadly force, minority view, §§147-149
tortious vs. other dispossessions, §§148-149
RELATIONAL INTERESTS
See Interference with family relationships; Husband and wife; Parent and child
RELEASE
covenant not to sue, §1257
joint tortfeasors, §1252
effect of release of one, §§1255-1257
indivisible injury, §1253
satisfaction, §1254
RES IPSA LOQUITUR
airplane accidents, §382
burden of proof, §§382-384
bursting bottle cases, §372
defendant’s duty, §§369-375
eliminating plaintiff as causal factor, §376
evidence, accessibility of, §379
exclusive control in defendant, §§370-372
expert testimony, necessity of, §367
inference from facts, §382
inference that defendant was negligent, §§363-364, 378
inference that someone was negligent, §§365-368
multiple defendants, §§373-375
nature of accident, §§365-368
physicians and surgeons, §373
presumptions
disappearing, §384
permissible inference, §382
rebuttable, §383
products liability negligence of manufacturer, §942
proving specific acts, effect of, §§380-381
Third Restatement approach, §378
three-part test, §364
RESCUERS
duty owed to, §§327-328
duty to rescue, statutory, §§1313-1314
foolhardy, §§331, 493
harm by, §329
professional, §332
proximate cause, §§481, 493
RESPONDEAT SUPERIOR, §§609-612.
See also
Employer and employee; Vicarious liability
RIGHT OF PRIVACY
See Privacy
S
SALES
See Products liability; Warranty, liability based on breach of
SATISFACTION
See Release
SCIENTER
dangerous animals, §§890-891
deceit, §§1637-1638
SELF-DEFENSE
See also Defense of others
apprehension of immediate contact, §124
deadly force, §§123-128
force, use of, §§121, 129, 131-132
limitations on right, §§130-135
mistake, §§120, 122
nondeadly force, §§119-122
privilege in general, §§119-123, 133
reasonableness test, §136
544
retreat, duty to, §§122, 125-128

threats, privilege to make, §129
SELLERS OF LAND
duration of liability, §757
known concealed dangers, §755
liability after transfer, §754
persons outside premises, duty to, §756
SHOPKEEPER’S PRIVILEGE
force, use of, §162
mistake, §164
reasonable suspicion, §161
temporary detention of suspected thief, §§158-164
SLANDER
See Defamation
SLANDER OF TITLE
STATES
immunity of, §1223. See also Immunities
STATUTE, VIOLATION OF
class of persons protected, §402
community custom, §§385-392 Dram Shop Acts, §§637-649
effect of, §§408-414
evidence of negligence, §§408-414
excused violations, §§404-407, 412-414
negligence per se, §§395, 396-402, 404, 406-407
presumptions, §§410-411
prevention of particular harm, §401
standard of conduct, statutory, §399
type of risk covered, §§400-401
STATUTES
alternative dispute resolution, §1351
attorneys’ fees regulation, §1349
automobiles
guest statutes, §§589-590
no-fault insurance, §§1285-1296
black lung compensation, §1323
charities, §1251
collateral sources rule, limitations on, §§1344-1348
compliance with as due care, §§393, 549
consortium, loss of, §§1175-1187
crime victims, §§1316-1318
damages, limitations on, §§1334-1343
Dram Shop Acts, §§637-641, 1315. See also Negligence
federal preemption, §§1325-1328
frivolous claim sanctions, §1350
Good Samaritan acts, §§560-566, 1314
joint and several liability, limitations on, §§1330-1333
medical malpractice, §§1297-1304
no fault, §§1285-1296, 1319-1321. See also Liability insurance, effect of
nuclear accidents, §1322
officers, liability of governmental, §§1241-1247
permissive use, §603
products liability, §§1305-1312. See also Products liability
rescue, duty to, §§1313-1314
September 11 victim compensation, §1324
survival of actions, §§1151-1153
vicarious liability, extension by, §634
workers’ compensation, §§1272-1284
wrongful death acts, §§1157-1171
STRICT LIABILITY
See also Animals; Products liability
abnormally dangerous activities, §§898-913
defined, §§899-902
determinative factors, §903
relation to surroundings, §§904-905
airplanes, ground damage from, §§906-908
animals. See Animals
assumption of risk, §§922-924
blasting, §§901, 917
common carriers, §909
comparative negligence, §921
contributory negligence, §920
extent of liability, §§914-919
foreseeable hazards, §917
foreseeable plaintiffs, §§915-916
handguns, §§910-911
in general, §880
negligence compared, §916
nonnatural use of land, §900
products liability compared, §§912-913
proximate cause, §919
Rylands v. Fletcher, §900
ultrahazardous activities, §901
vicarious liability. See Vicarious liability
warranty. See Warranty, liability based on breach of
SUPPLIERS OF CHATTELS
See Products liability
SURVIVAL OF TORT ACTIONS
common law rules, §1150
pain and suffering, §1153
personal torts, §§1152-1154
intangible interests, §1154
privacy, invasion of, §§1613-1618
property torts, §1155
punitive damages not recoverable, §1155
statutory provisions, §§1151-1154
545
T
TENANT
See Landlord, duties of
THREATS
assault, basis for, §§29-31, 36-46
emotional distress, infliction of, §§31, 80
plaintiff’s awareness required for assault, §36
privileged in defense of property, §145
privileged in self-defense, §129
when sufficient for confinement, §§67-70
TOUCHING
See Battery
TRADE LIBEL
TRANSFERRED INTENT
See Intent, transferred
TRESPASS
ab initio, §275
chattels trespassing, privilege to exclude or evict, §§252-253
common law action of, §10
TRESPASS TO CHATTELS
bailment cases.
See Bailments causation, §214
damages, §215
intent, §§208-209
invasion of chattel interest, §§210-212
dispossession, §211
intermeddling, §212
possession, necessity of, §213
strict liability compared, §208
TRESPASS TO LAND
airspace, §§196-200
damages, §§204-205
defendant’s intrusion, §§188-189
by intangibles, §189
intent, §§184-187
landlord and tenant, §§194-195. See also Landlord, duties of
leased property, §§194-195
nuisance distinguished, §201
possession, necessity of, §§190-200
privilege to exclude trespassing chattels, §§252-253
privilege to reclaim chattels. See Recapture of chattels as defense to invasion of property
strict liability compared, §186
TRESPASSERS
attractive nuisance doctrine, §§674-688
age of child, §676
artificial conditions, §§678-686
balancing risk against utility, §681
child’s appreciation of danger, §§678-687
dangerous activities, §683
defense, as a, §688
discover, duty to child, §677
foreseeability of trespass, §679
natural conditions, §687
ordinary risks, §685
risk of injury, foreseeable, §680
children. See attractive nuisance doctrine, above
conditions, dangerous, §§662, 671-673, 721
constant trespassers upon a limited area, §§664-673
dangerous activities, §§662, 664, 671
discovered, §§662, 665
habitual intruders, §§666-673
in peril, duty to, §663
liability of occupiers to, §§661-665
ordinary, §§660-665
privilege of to abate nuisance, §§268-273
straying from highway, §§258-261
U
UNITED STATES
immunity of, §§1222-1223. See also Immunities
V
VICARIOUS LIABILITY
automobiles, liability of owners, §§594-597, 601-603
bailors and bailees, §§592, 597-598, 600-603
defamation, §1369
direct liability distinguished, §592
employer and employees, §§605-613. See also Employer and employee
negligent supervision, §608
employer and independent contractors
collateral negligence, §627
dangerous activities, §§625-626
546
health care providers, §§621-623

negligence of employer, §§614-626
no liability rule, §615
nondelegable duties, §§618-626
indemnity, §1263
joint enterprise. See Joint enterprise
parent and child, §§633-634
stolen property, §599
VIOLATION OF STATUTE
See Statute, violation of
WXYZ
WARRANTY, LIABILITY BASED ON BREACH OF
assumption of risk as defense to, §§1095, 1099
consumer protection statutes, §1094
contributory negligence no defense, §1098
damages, §1097
disclaimers as defense to, §§1100-1104
effect of, §1083
express warranties, §§1070, 1087
extension beyond sellers of chattel, §§1076-1082
bailments, §1077
dealer requirement, §1082
leases, §1077
new homes, §1078
goods vs. services, §§1079-1081
blood, §1081
implied warranties, §§1071-1082
fitness for particular purpose, §1073
merchantability, §1074
manufacturers or suppliers, §§1084-1090
notice of breach, §1185
plaintiffs protected, §§1084-1094
privity requirement, §§1084-1094
dangerous products excepted, §§1091-1093
latent dangers only, §1096
strict liability in tort, §§1075, 1083
U.C.C. provisions, §§1072-1082
privity, §§1089-1090
sale of goods only, §1076
strict liability in tort compared, §1075
WILLFUL AND WANTON MISCONDUCT
See Reckless conduct
WORKERS’ COMPENSATION, §§1272-1284
WRONGFUL BIRTH
healthy child, §§1194-1196
in general, §1193
no suit by child, §1200
unhealthy child, §§1197-1200
emotional distress, §1199
WRONGFUL DEATH
beneficiary’s negligence as defense, §§1170-1171
common law, §1156
comparative negligence as defense to, §§1168, 1170
contributory negligence
as defense to, §§1168, 1170
imputed, §810
damages
measure of, §§1161-1167
no punitive, §1167
recoverable, §§1158-1160
decedent’s recovery inter vivos as defense, §1169
prenatal injuries, §1192
statutes, types of, §1157-1167
547
Notes
548
Notes
549
Notes
550
Notes

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Torts

GILBERT LAW SUMMARIES

of Texas MELVIN A. EISENBERG

EDWARD C. HALBACH, JR.

GEOFFREY C. HAZARD, JR.

of Texas THOMAS M. JORDE

EDITORIAL OFFICES: 1 North Dearborn St., Suite 650, Chicago, IL 60602

QUALITY CONTROL EDITOR

TORTS TEXT CORRELATION CHART

III. STRICT LIABILITY

IV. PRODUCTS LIABILITY

VI. MISCELLANEOUS FACTORS AFFECTING RIGHT TO SUE

VII. STATUTORY CHANGES IN PERSONAL INJURY LAW

IX. WRONGFUL INVASION OF PRIVACY

REVIEW QUESTIONS AND ANSWERS

A. TORTS TO THE PERSON

c. Harmful or offensive touching §11

(3) Nature of P’s apprehension §47

B. DEFENSES AND PRIVILEGED INVASIONS OF PERSONAL INTERESTS

criminal act effective except where P is a member of a class protected by

b. Mechanical devices §143

privileged to arrest for a misdemeanor without a warrant if the misdemeanor was

c. Intrusion on land §188

D. DEFENSES AND PRIVILEGED INVASIONS OF LAND AND CHATTELS

B. NEGLIGENCE (BASED ON THE “DUTY OF DUE CARE”) §278

(2) Standard remains same under all circumstances §284

c. The unforeseeable P—to whom is the duty of care owed? §320

3. Breach of Duty §347

(d) Third Restatement’s single-element approach §378

(b) Excuse offered §412

(2) Rules focusing on results of D’s negligence

C. SPECIAL DUTY QUESTIONS

b. Means by which statute gives rise to tort duty §548

b. Contractual promises §575

(1) Doctrine of respondeat superior—vicarious liability §609

(b) If the conditions “substantially adjoin” a public road, there is a duty

(c) Child trespasser doctrine as defense to trespass §688

3) Safeguarding chattels §710

(2) Exception §769

1. Contributory Negligence §791

parties. Negligence ordinarily is not imputed between spouses (a few

(8) Res ipsa loquitur §837

defense. It is treated as a question of duty or contributory negligence. A few

E. EFFECT OF LIABILITY INSURANCE

III. STRICT LIABILITY

C. ABNORMALLY DANGEROUS ACTIVITIES

IV. PRODUCTS LIABILITY

B. LIABILITY BASED ON INTENTIONAL ACTS §929

C. LIABILITY BASED ON NEGLIGENCE

has only assembled component parts negligently manufactured by others is liable

D. STRICT LIABILITY IN TORT §952

(2) Design defects §961

(3) Inadequate warnings §979

(b) Alternative approach—“defect” alone §1027

c. Assumption of the risk §1059

E. LIABILITY BASED ON BREACH OF WARRANTY

3. Effect of Breach of Warranty §1083

B. PLAINTIFF’S INTEREST §1114

C. DEFENDANT’S CONDUCT §1118