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A tort is a civil wrong, not based on K for which the law provides a remedy.
Intentional Torts: Voluntary act, w/ intent (w/ purpose of causing intentional tort or w/ substantial certainty that his act
will cause it). Transferred Intent: same tort, different person, same person, different tort, different tort, different person.
(intent to cause one intentional tort satisfies intent requirement for all intentional torts) (take P as you find them)
I. Battery: act w/ intent to cause contact w/ the victim, & said contact was harmful or offensive to victim
a. Harmful: any physical impairment of the condition of another’s body or physical pain or illness. Offensive:
objective standard. Contact: unauthorized, need not be present, extend to objects intimately associated w/body.
b. Single Intent: P prove D intended contact & such contact was harmful or offensive. Dual Intent: P prove D
intended the contact & intended that the contact be harmful or offensive. (depends on jurisdiction)
II. Assault: act w/ intent to cause harmful or offensive contact w/ person or an imminent apprehension of such contact,
& such imminent apprehension occurred
a. Apprehension: fear or anticipation of blow. Imminent: no significant delay.
b. Overt physical act by D, of which P is subjectively aware. Mere Words- not assault unless paired w/ acts or
circumstances to put in reasonable apprehension of an imminent harmful or offensive contact with person.
Cond. Threats can constitute assault bc aggressor has ~ right to impose on victim.
III. False Imprisonment: act w/ intent to confine the other w/i boundaries, intentional act either directly or indirectly
caused such confinement to the other, & the other was either conscious or harmed by it
a. Intent: acted w/ purpose to cause confinement or w/ substantial certainty. Confinement: restraint of Ps freedom
of movement. (1 is ~ confined if reasonable means of escape, however, P ~ required if escape offensive to
reasonable person)(P can reasonably respond to various threats by submitting to confinement: physical force,
threats to property or to family member) Damages need not be proved unless P unaware of confinement.
b. Shopkeeper’s Privilege
i. Elements of Privilege: reasonable suspicion, reasonable manner of detention, reasonable period of time.
IV. Trespass to land: intentional entry on land in possession of another
a. Intent: P need not prove D intended trespass, just that D had intent to be on land. Entry: land in possession of
another, causes a thing or 3rd person to do so, remains on land, or fails to remove from the land a thing which he
is under duty to remove.
b. Trespasser liable for resulting damage, even damage he had no desire or expectation that he would cause.
Damages need not be foreseeable (trench). Liable even if no damage.
V. Trespass to Chattels: committed when actor intentionally dispossesses another of chattel, or intentionally used or
intermeddled w/ a chattel in possession of another. (P may recover nominal &/or actual damages)
a. Intermeddling: touching or damaging prop. w/o intent to deprive possessor. Dispossessing: intentionally taking
chattel w/o possessor’s consent. (liable for resulting impairment of its condition / nominal for minimal loss
b. Liable if, but only if: 1) dispossess other of chattel, 2) chattel is impaired as to its condition, quality or value, 3)
possessor is deprived of use of chattel for substantial time, 4) or bodily harm is caused to possessor, or harm
caused to person or thing in which possessor has a legally protected interest.
VI. Conversion: an intentional exercise of dominion or control over a chattel which so seriously interferes w/ right of
another to control it that actor may justly be required to pay the full value of the chattel. Damaged to point of being
useless.(prince: no market value for cells, so used time spent on cells)
VII. Factors to Consider in Determining Whether Trespass to Chattels or Conversion:
a. 1) extent & duration of actor’s exercise of dominion or control; 2) actor’s intent to assert a right in fact
inconsistent w/ the other’s right of control; 3) actor’s good faith; 4) extent & duration of resulting interference
w/ the other’s right of control; 5) harm done to chattel; 6) inconvenience & expense caused to other.
VIII. IIED: (Intent, Outrageous or extreme, Cause, Severe E.D.)
a. Intent: specific intent or w/ substantial certainty to cause P to suffer E.D or w/ reckless disregard.
b. Outrageous or Extreme Conduct: objective unless: relationships through authority, knowledge P is predisposed
c. Cause: Ds outrageous conduct proximately caused E.D
d. Severe E.D. (intensity & duration)
Defenses to Intentional Torts
I. Consent: (one who effectively consents to conduct of another intended to invade his interests cannot recover in an
action of tort for the conduct for harm resulting from it) Express / Implied. Can be vitiated by fraud
a. §829. Conduct that injures another does ~ make actor liable, even though other has not consented if: emergency
makes it necessary in order to prevent harm to other before obtaining consent, & actor has ~ reason to believe
that other, if he had opportunity to consent would decline. (Implied Consent)
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II. Defense of Self, Others, & Property
a. Self: limited. Actor privileged to use reasonable force to defend against unprivileged harm or offensive contact
or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.
(majority: stand your ground, minority: retreat if reasonable) (privilege ends as soon as threat does)
i. Deadly Force: actor may use deadly force in only if reasonably believes she is threated w/ deadly force
which can be prevented only by immediate use of deadly force. (character/reputation of P, difference in size
& strength, overt act by P, threats of bodily harm, impossibility of peaceful retreat)
b. Others: an actor may use reasonable force to protect another so long as he reasonably believes that the other is
about to be the victim of a battery by D. (necessity for defense must be immediate, past attacks will not justify)
c. Property: deadly force is never permitted.
III. Necessity:
a. Public: D must prove: reasonable to believe greater harm would’ve come to public if he didn’t act how he did,
that he reasonably believed otherwise tortious conduct was necessary to prevent greater harm to public.
b. Private: one is privileged to enter or remain on land in possession of another if it is or reasonably appears to be
necessary to prevent serious harm to actor or his land or chattels. (pays actual damages but ~ nominal/punitive)
Negligence: (duty, breach, cause, damages) – must be proved by a preponderance of the evidence. (negligence = the
omission to do something which a RPP would do, or doing something which a RPP would not do.
Duty
I. Duty of Reasonable Care:
a. Reasonably Prudent Person under the same or similar circumstances. RPP considers:
i. (1) foreseeable risks of the injury, (2) extent of the risks posed by their conduct (unreasonable), (3) the
likelihood of a risk actually causing harm. (alternatives available?)
b. Pros: one consistent uniform standard, jury doesn’t have to consider D’s intellect or actual knowledge,
encourages ppl to conform to a higher standard
c. Cons: Holds some people liable even though they were using their best judgment (Menlove)
II. The Reasonable Person Under the Circumstances
a. Extraordinary Knowledge & Skill. If an actor has skills or knowledge that exceed those possessed by most
others, these skills or knowledge are circumstances to be taken into account in determining whether the actor
has behaved as a reasonably careful person.
b. Physical Disability. Standard: the standard of care of a reasonable person w/ the same physical disability.
i. Ex: blind man reasonably should have aid while crossing street
ii. Policy: the disabled have to live in the same world as the rest of us, & it is reasonable for them to impose
the risk of occasional sidewalk collisions.
c. Mental Disability. Standard: a person w/ a mental disability is held to standard of care of a reasonable person &
disability is not considered in determining whether conduct is negligent.
i. Policy: (1) allocates losses between two innocent parties to the one who caused the loss. (2) provides
incentive to those responsible for people with disabilities & interested in their estates to prevent harm &
restrain those who are potentially dangerous. (3) removes inducements for alleged tortfeasors to fake a
mental disability in order to escape liability. (4) avoids administrative problems involved in courts & juries
attempting to identify & assess the significance of an actor’s disability. (5) forces persons with disabilities
to pay for the damage they do if they are to live in the world.
d. Children. Standard: of a reasonable person of like age, intelligence & experience under like circumstances.
i. Policy: children have to learn to be careful, & ought not be exposed to tort liability for conduct that is
reasonable in light of their stage of development during the learning process. Children are traditionally
encouraged to pursue childhood activities w/o burdens & responsibilities w/ which adults must contend
ii. When will children be held to adult standard? (varies by jurisdiction)
1. Engaging in inherently dangerous activity or engaged in adult activity
2. Policy: such a rule protects the need for children to be children but at the same time discourages
immature individuals from engaging in inherently dangerous activities.
e. Extraordinarily Dangerous Activities: (the care required is always reasonable care. The standard never varies,
but the care which it is reasonable to require of the actor varies with the danger involved in his act & is
proportionate to it. The greater the danger, the greater the care which must be exercised) (improper instruction:
D owed duty of extreme care). (proper: D required to exercise high level of care)
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f. Sudden Emergency: (should only use instruction if: party seeking instruction had not been negligent prior to the
emergency, emergency had come about suddenly & w/o warning, & reaction to the emergency was
spontaneous, w/o time for reflection
i. The instruction is only a factor to be considered in determining reasonable care.
ii. Permitted in some states, others it is not
III. Duty Owed By Professionals: professional duty of care based off of custom. (Osborn: reason y profs. usually held
only to standard of custom & practice s that their informed approach to matters outside of common knowledge
should not be evaluated by the ad hoc judgments of a lay judge or lay jurors.)
a. Who is a professional?: 1)professional obligations (bar association, medical association); 2) not a strong profit
motive, 3) special relationship w/ client/patient as opposed to automobile manufacturers
b. Doctors
i. Med Mal: Duty (standards may be set by customary practice, some states use national standard (modern
trend), some states use local standard, others use similar community standard). Miss. Duty: minimally
competent physician in that field, national standard of care, tied to available resources.
1. Breach (expert testimony required to prove breach unless res ipsa cause: sponge in the back).
Causation (expert testimony usually required to prove causation). Damages
ii. Lack of Informed Consent: Duty on what to disclose depends on jurisdiction: (what is customarily
disclosed, what a minimally competent physician would disclose (Miss.)(need expert), what a reasonably
prudent patient would want to know (material risks)
1. Elements: 1. Duty to inform, 2) Breach: D failed to inform before securing consent, 3) Causation:
below . 4) Injury (the risk must actually materialize & P must have been injured as a result of
submitting to the treatment.)
2. Cause Subjective: “I would not have had the surgery” Pro: gives P self-determination. Con: may place
D at mercy of P.
3. Cause Objective: RPP would not have had surgery. Permits liability only if non-disclosure would have
affected the decision of RPP. Con: no self-determination, P may consent to surgery, but RPP wouldn’t
c. Lawyers:
i. 1. Possesses the requisite degree of learning, skill & ability necessary to the practice of his profession &
which others similarly situated ordinarily possess; 2. He will exert his best judgment; 3. Exercise
reasonable & ordinary care & diligence. When attorney does this, ~ answerable for mere mistake. Further,
where lawyer misses SOL, P would still be required to prove would have won the underlying case & would
have recovered
ii. Barcelo: attorney owes duty only to his client, not to 3rd parties who may have been damaged by the
attorney’s negligent representation of the client. Policy: w/o this barrier, clients would lose control over the
attorney-client relationship, & attorneys would be subject to almost unlimited liability
IV. Duty Owed by Landowners (Premise Liability)
a. Trespassers
i. Adult: 2 distinct classes of trespassers to land: 1. Mere trespassers, to whom the landowners owes the duty
not to wantonly injure them; & 2. Flagrant Trespassers who enter land of another w/ the manifest intent to
commit a criminal act & to whom the landowners owes only the duty not to intentionally injure them.
1. Policy: we hold duty owed by a landowner to an adult trespasser who comes upon the land & is injured
while committing a crime is the duty not to intentionally injure such trespasser.
2. Justifications for lower duty to ordinary trespassers: 1. Trespassers are simply disliked & as a matter of
justice, should not be entitled to the same protections as one permitted to be on the property. 2. They
are less foreseeable than the invited or permitted guest.
ii. Child: a possessor of land is subject to liability for physical harm to children trespassing thereon caused by
an artificial condition upon land if: a) the place where the condition exists is one upon which possessor
knows or has reason to know that children are likely to trespass; b) the condition is one of which possessor
knows or has reason to know & which he realizes or should realize will involve an unreasonable risk of
death or serious bodily harm to such children; c) the children bc of their youth do not discover the condition
or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it; d)
the utility to possessor of maintaining the condition & the burden of eliminating the danger are slight as
compared with the risk to children involved, & e) possessor fails to exercise reasonable care to eliminate
the danger or otherwise to protect the children.
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b. Licensees: person who is privileged to enter or remain on land only by virtue of possessor’s consent
i. Duty Owed: not to injure him by “willful, wanton or grossly negligent conduct, & that the owner use
ordinary care to either warn a licensee of, or to make reasonably safe, a dangerous condition of
ii. To recover, P must plead & prove that landowner: 1. Had actual or constructive knowledge of some
condition on the premises; 2. That the condition posed an unreasonable risk of harm; 3. That landowner did
not exercise reasonable care to reduce or eliminate the risk; 4. That landowner’s failure to use such care
proximately caused the P’s injuries.
c. Invitees: (1) an invitee is either a public invitee or a business visitor. (2) a public invitee is a person who is
invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the
public. (3) a business visitor is a person who is invited to enter or remain on l& for a purpose directly or
indirectly connected with business dealings with the possessor of the l&.
i. Duty Owed: one of reasonable care under the circumstances
ii. Liable if knows or by the exercise of reasonable care would discover the condition & should realize that it
involves an unreasonable risk
iii. A person who provides services for the benefit of the landowner is generally held to be an invitee.
iv. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the l&
if, but only if, he: a) knows or by the exercise of reasonable care would discover the condition, & should
realize that it involves an unreasonable risk of harm to such invitees, & b) should expect that they will not
discover or realize the danger, or will fails to protect themselves against it, & c) fails to exercise reasonable
care to protect them against the danger.
d. Modern Rejection of 3 Categories: we should eliminate the distinction between licensees & invitees by
requiring a standard of reasonable care toward all lawful visitors. Adoption of a true negligence standard
eliminates the complex, confusing & unpredictable state of premises-liability law & replaces it with a rule
which focuses the jury’s attention upon the pertinent issue of whether the landowner acted as a reasonable
person would under the circumstances.- N. Carolina
V. Special Duty Rules
a. No duty as a matter of Law: An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm. In exceptional cases, when an articulated countervailing principle or policy
warrants denying or limiting liability in a particular class of cases, a court may decide that the D has no duty or
that the ordinary duty of a reasonable care requires modification.
i. Nursing home resident owed no duty to attendant. (Policy)
ii. Social Hosts owe no duty to prevent guests from drinking & driving (policy)
iii. Firefighter Rule: firefighters & police officers who are injured may not recover based on the negligent
conduct that required their presence
1. Policy: forces taxpayer to pay twice (taxes & recovery), compensates firefighter twice (salary &
recovery), officers are paid to confront crises, don’t owe duty, would compound litigation. Analogy-
contractor is injured while repairing the condition that necessitated his employment. In these cases, the
owner is under no duty to protect the contractor against risks arising from the condition the contractor
is hired to repair. (only to negligence that causes need for presence, not negligence after arrival)
iv. An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care
to the other unless court determines that one of the affirmative duties is applicable.
b. Duty Based on Prior Conduct Creating a Risk of Physical Harm: when an actor’s prior conduct, even though not
tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to
exercise reasonable care to prevent or minimize the harm.
c. Duty Based on Undertaking: an actor who undertakes to render services to another & who knows or should
know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the
other in conducting the undertaking if: (a) the failure to exercise such care increases the risk of harm beyond
that which existed w/o the undertaking, or (b) the person to whom the services are rendered or another relies on
the actor’s exercising reasonable care in the undertaking
i. Good Samaritan Statutes, exception for pre-existing duty
1. MS Good Samaritan Statute: no duly licensed, practicing physician, dentist, RN, LPN, emergency
technician, or any other person who, in good faith & in the exercise of reasonable care, renders
emergency are to any injured person at the scene of an emergency, or in transporting said injured
person to a point where medical assistance can be reasonably executed, shall be liable for any civil
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damages to said injured person as a result of any acts committee in good faith & in the exercise of
reasonable care or omissions in the good faith & in the exercise of reasonably care by such persons in
rendering the emergency care to said injured person
ii. coast: definite & affirmative act causing death, an act deliberately undertaken & negligently performed.
d. Duty Based on Special Relationship w/ Another: An actor in special relationship w/ another owes the duty of
reasonable care w/i regard to risks that arise within the scope of the relationship. Special relationships giving
rise to the duty include: common carrier w/ its passengers, innkeeper w/ its guests, business or other possessor
of land that holds its premises open to the public w/ those who are lawfully on the premises, employer w/ its
employees, a school w/ its students, a landlord w/ its tenants, & a custodian w/ those in its custody
i. Duty ends at end of special relationship: ex: Boyette v. trans- a common carrier discharges its duty to
protect a passenger from injury once the passenger reaches a reasonably safe place.
e. Duty to 3rd Parties Based on Special Relationships w/ Person Posing Risks
i. Actor in a special relationship with another owes a duty of reasonable care to 3rd parties w/ regard to risks
posed by the other that arise within the scope of the relationship. Special relationships giving rise to duty
include: a parent with dependent children, a custodian with those in its custody, an employer with
employees when the employment facilitates the employee’s causing harm to 3rd parties, & a mental health
professional with patients
ii. Health Care Workers (Tarasoff)
1. A therapist owes a duty to exercise reasonable care to protect a 3rd party by warning that specific
person of a specific & immediate threat of serious bodily injury targeted at the person by a specific
individual who is in a treatment relationship with the therapist.
2. In light of the confidentiality & privacy requirements, the duty enacted by the court will be limited: (1)
existence of a specific & immediate threat of serious bodily injury communicated to the professional
by the patient, (2) the duty will only arise where the threat is made against a specific person
iii. Employer-Employee Relationships
1. An employer who exercises control over a known incapacitated employee has a duty to take reasonable
action to prevent the employee from causing an unreasonable risk of harm to others.
iv. §315. There is no duty so to control the conduct of a third person as to prevent him from causing physical
harm to another unless a) a special relationship exists between the actor & the 3rd person which imposes a
duty upon the actor to control the 3rd person’s conduct, or b) a special relationship exists between the actor
& the other which gives to the other a right to protection.
f. Duty to Another Based on Taking Charge of the Other
i. An actor who, despite no duty to do so, takes charge of another who reasonably appears to be: imperiled
and helpless or unable to protect him/herself, has a duty to exercise reasonable care while the other is
within the actor’s charge.
ii. An actor who discontinues aid or protection is subject to a duty of a reasonable care to refrain from putting
the other in a worse position than existed before the actor took charge of the other and, if the other
reasonably appears to be in imminent peril or serious physical harm at the time of termination, to exercise
reasonable care w/ regard to the peril before terminating rescue.
g. Duty to Limited by the Nature of the Primary Harm
i. Emotional Distress: (courts are reluctant to impose a duty to avoid indirect infliction of emotional distress
because (1) the foreseeability of such distress argues for restraint. For every victim who suffers negligent
physical injury, a number of bystanders may suffer emotional distress. (2) courts are reluctant to impose a
duty to persons who have no relationship to the D. & (3) judges are justifiably concerned about the impact
that creating a duty will have on the administration of justice. It could clog the courts with suits over trivial
unpleasantries.
1. From Impact Rule to Zone of Danger
a. The Impact Rule: recovery for E.D. was proper if P also suffered physical injury
b. Zone of Danger: if he was close enough to Ds negligent conduct to be placed at a risk of physical
injury, even though he was not actually touched.
i. Rationale: D owes bystanders a duty of care bc they are within the area of the risk created by
his conduct, & hence injury to them is foreseeable
ii. Compensates a limited class of indirect victims: a class that is reasonably likely to be seriously
affected by the accident.
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2. From Zone of Danger to Dillon Rule of Foreseeability
a. The arbitrariness of the zone of danger rule led courts to seek a more flexible approach to indirect
infliction claims
b. Dillon v Legg
i. Ds have a duty to avoid infliction of E.D. that is reasonably foreseeable, including infliction of
such distress on indirect victims. 3 factors in determining whether such distress was
foreseeable: (1)whether P was located near the scene of the accident as contrasted with one
who was a distance away from it; (2) whether the shock resulted from a direct emotional impact
upon the P from the sensory & contemporaneous observance of the accident, as contrasted with
learning of the accident from others after its occurrence; (3)whether P & the victim were
closely related, as contrasted with an absence of any relationship or the presence of only a
distant relationship
ii. To recover: P must prove 1) was located near scene; 2) was emotionally injured by the
contemporaneous sensory observance of the accident; 3) was closely related to the victim
3. Is There a General Duty Not to Cause Emotional Distress: Boyles v. Kerr: TX. There is no general
duty not to negligently inflict E.D.
ii. “Mere” Economic Harm: a private individual ay not recover damages for economic loss suffered from a
public nuisance if the loss is commonly suffered by members of the community.
iii. Wrongful Pregnancy, Wrongful Life, & Wrongful Birth
1. WP. Rule: pursuant to the limited damages rule, a parent P may recover damages in a WP action
related to the pregnancy & birth but may not recover for child rearing experiences.(birth of a normal
healthy child cannot be an injury to parents)
2. Nelson v. Krusen: a minor child’s claim for wrongful life under negligence principles may not be
sustained bc the element of injury is absent.
h. Duty Limited by the Nature of the Activity: Primary Assumption of the Risk
i. Inherent Risk – one who voluntarily participates in a sport accepts the inherent dangers in it so far as they
are obvious & necessary to participation.
ii. More Refined Test for Inherent Risks: in Utah, a ski area operator is not immune from liability pursuant to
the state’s inherent risk of skiing statute if it fails to exercise ordinary care & eliminate a known &
unnecessary hazard that causes injury to a patron.
Proving Breach of Duty
VI. Learned Hand Formula: A reasonable person takes a precaution against injury if the burden of doing so (B) is less
than the loss if the injury occurs (L) multiplied by the probability that the injury will occur (P) If B < P*L, D acting
unreasonable, therefore liability should be imposed. (if very unusual risk and B very expensive, may be reasonable
to not take precautions. However, a risk need not be likely for a reasonable person to avoid it.)
VII. Negligence Per Se- Violation of Statutes: an actor is negligent, if, without excuse, the actor violates a statute
designed to protect against the type of accidence the actor’s conduct causes, & if the accident victim is w/I the class
of persons the statute is designed to protect. Statute is only relevant in establishing negligence if it is meant to
protect persons like the P from the type of harm which actually occurred. (can b used as presumption to Ds
negligence or as evidence of Ds negligence)
a. Excuse: An excused violation is not negligence: (1) violation is reasonable in light of the actor’s childhood,
physical disability, or physical incapacitation, (2) the actor exercises reasonable care in attempting to comply
with the statute; (3) the actor neither knows nor should know of the factual circumstances that render the statute
applicable; (4) the actor’s violation of the statute is due to the confusing way in which the requirements are
presented to the public; or (5) the actor’s compliance with the statute would involve a greater risk of physical
harm to the actor or to others than noncompliance.
VIII. Custom §13. A) An actor’s compliance w/ custom of the community, or of others in like circumstances, is
evidence that actor’s conduct is not negligent but does ~ preclude a finding of negligence. B) Actor’s departure from
the custom of the community, or of others in like circumstances, in a way that increases risk is evidence of actor’s
negligence but does ~ require a finding of negligence.
a. Industry Custom: TJ hooper: jury allowed to hear evidence of custom, however, still must determine whether
what was done, customary or not, comports w/ negligence standard.
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b. Personal Custom: in a negligence action, the appropriate standard to be applied to a D’s conduct is whether he
objectively exhibited ordinary care that a reasonably prudent person would have exercised under the
circumstances, rather than a subjected standard held by the particular D.
IX. Res Ipsa Loquitor: accident ~ ordinarily happen w/o negligence & negligence, if any, attributable to particular D
i. It may be inferred that harm suffered by the P is caused by the negligence of the D when (a) the event is a
kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including
the conduct of P & 3rd persons, are sufficiently eliminated by the evidence.
ii. Majority: creates a possible inference of negligence which jury is free to accept or reject
iii. Minority: raises a presumption which D must rebut
iv. Can rebut res ipsa: prove the actual cause of the accident or prove that he generally exercised due care.
X. Recklessness: mobil oil: a comp. may be liable for compensatory & punitive damages for gross negligence if its
actions objectively involved an extreme degree of risk & probability of harm to the P, & the company acted
recklessly & w/ conscious indifference to P’s safety dispute subjective, actual awareness of serious risk involved.
Causation: (3 step analysis – 1. Is there actual but-for cause(or will an alternative suffice), 2. Is there proximate causing
using the court’s primary test? 3. Is there any superseding cause?
I. Actual Cause: (requires that, as a factual matter, the D’s act contributed to producing the P’s injury)
a. But For Test: the Ds conduct is a cause of the event if the event would not have occurred but for that conduct;
conversely, Ds conduct is not a cause of the event if the event would have occurred w/o it.
i. Court asks whether P would not have suffered the harm “but for” Ds negligence?
ii. Cay: wrongful death where P fell off bridge yet there were a number of but for causes: alcohol, had he
accepted the ride, etc. yet, court looked at whether Ds act or omission of negligence was one of the
essential links in the chain of causation that led to the harm.
iii. Movie: even if theater removed “rowdy” persons, it cannot be said the bottle wouldn’t have been thrown
b. Alternatives to But-For- used in unusual situations only which but for test does ~ yield satisfactory results.
i. Multiple Sufficient Independent Causes
1. If multiple acts occur, each of which alone would have been a factual cause of the physical harm at the
same time in the absence of the other act(s), each act is regarded as a factual cause of harm
2. Substantial Factor Test: D would be a cause in fact of the damage if jury found that its act was a
material or substantial element in producing it. Ex: fire case
3. Policy: when more than 1 tortfeasor & may be that neither can be considered true “but for” causes.
This would leave P uncompensated and D unpunished.
ii. Alternative Liability: applies in a multiple tortfeasor scenario where there is a true but-for cause associated
with the tort but P is not in a position to identify, as between the tortfeasors, which one is responsible for
causing them. (Shifts burden to Ds to exonerate themselves. If can’t, both liable)
1. Policy: both Ds were negligent in Summers v. Tice, but it was impossible for the P to show that it was
more probably than not that either Ds pellet had hit him: it was a 50/50 proposition that either Ds shot
had hit him. Under but-for, P would lose. California unwilling to see P lose bc clear that both Ds
committed the same act & were negligent so court shifted the burden of proof to each D to show that
he had NOT caused the harm.
2. P must still prove: (1) two or more Ds committed tortious acts, & (2) P was injured as a proximate
result of the wrongdoing of one of the Ds. Only then will the burden shift to the Ds to prove that they
were not the cause of Ps injuries.
iii. Modified Alternative Liability: Market Share:
1. Cal: allows P to sue a number of manufacturers & - assuming they are found at fault – hold each
severally liable for part of Ps damages. Each manufacturer’s share of the liability is determined by the
proportional share of DES it sold in relevant market area. (if only 1 D, then fully liable)
2. Wash/FL: (P may sue 1 DES manufacturer. D may implead -bring into action other DES makers- if it
does, all makers presumed to have equal market shares. If D offers no proof as to market share, they
will each be held liable for pro rata share of Ps damages. Any D who establishes it had smaller market
share will pay according to that share. If this happens, shares of other Ds go up so that P still recovers
100% of damages but only of Ds who haven’t offered proof)
3. Wisconsin: P must sue only 1 D; D can bring in other Ds. Ds may exculpate themselves. Remaining Ds
liable based on “risk contribution theory” jury allocates % based on degree each D contributed to
overall risk.
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4. Michigan: (P may recover by joining all Ds who might have sold the drug ingested by her mother. Any
D may avoid liability by proving that it did not manufacture the DES that injured P. Any maker who
does not make such proof would be jointly & severally liable to P for her entire damages)
5. NY: (a P who proves was injured by mother’s ingestion of DES recovers from any D who participated
in the US market for DES. Recovery is in proportion to national market share. If less than all makers
are before the court – which will virtually always be so – the P will recover less than full damages,
since each maker pays only in proportion to its market share.
6. Policy: Cal ct. found it unacceptable that P would ~ recover just bc she couldn’t identify specific
manufacturer when in all who participated were actually negligent.
iv. Increased Risk of Future Harm: Asbestos case: Ps exposure to asbestos doubled his risk & sues for e.d./fear
of contracting disease. Court ruled no general duty ~ to negligently inflict emotional distress & person
placed in peril by negligence of another, but who escapes w/o injury, may ~ recover damages. Court rejects
claim bc worried such claims would flood the courts & compete w/ suits where parties have actual
injuries.- TX.
1. Some jurisdictions allow recovery for: emotional distress, medical monitoring, proportional recovery
of expected damages in event P does contract disease.
v. Loss of Chance: doctrine is applied by a majority of courts to permit a medical malpractice P to recover
against a doctor who has failed to make a timely diagnosis or to treat an existing physical condition.
1. 3 approaches to loss of opportunity claims:
a. 1. minority: a P must prove that as a result of the Ds negligence, the P was deprived of at least
51% chance of a more favorable outcome than she actually received.
b. 2. P submits case to jury upon demonstrating that a Ds negligence more likely than not increased
the harm to the P or destroyed a substantial possibility of achieving a more favorable outcome.
c. 3. A P may prevail even if her chances of a better recovery are less than 51%. However, the P does
not receive damages for the entire injury, but just for the lost opportunity. Lord v. Lovett
2. Orthodox View:Ps chance of survival reduced by Ds negligence form 80% to 20%. The 20% P would
survive but he didn’t so irrelevant. Of the 80% chance, Ds negligence is 60% attributable. So 60/80
(75%) chance Ds negligence caused death & 20/80 (25%) chance that P would have died anyway. P
gets to recover full damages
II. Proximate Cause : (test depends on jurisdiction)
a. Direct Cause Test: D is liable if his conduct is the direct cause of Ps injury, as opposed to a remote cause. Direct
connection between the negligent act & the harm, w/o too many intervening causes?
i. In Re Polemis: A negligent actor can be held liable for all damages his negligent act caused, even if not
reasonably foreseeable. (worker dropped board into the hold of Ps ship, which caused a spark & ignited
petrol vapors in hold, destroying ship. Although the expulsion was deemed unforeseeable, the court held
that D was liable, since the negligent act of its employee was the direct cause of harm.
ii. Case where P spilled boiling water and alleges due to landowners negligence for failure to provide hot
water to premises. Ds conduct gave rise to Ps attempt to substitute heat. Yet, intervening act of banging
pots brought about injuries P sustained, not Ds failure to supply hot water, alone.
b. Foreseeability/ Scope of the Risk Test: whether nature of the harm or accident giving rise to the Ps claim was
the same general type that was w/i the scope original risk that permitted a finding of breach of the duty of
reasonable care. §29. An actor’s liability is limited to those harms that result from the risks that made the actor’s
conduct tortious
i. Tieder: prox. cause exists if general type of accident which occurred (injury to person near faulty wall) was
foreseeable even if sequence of events leading to collapse was not foreseeable. (D takes P as he finds her)
ii. Palsgraf argument: no duty because unforeseeable P. (since conductors would ~ have anticipated injury to
her from their conduct, they owed no duty to avoid the injury & were not negligent in relation to her)
iii. Rat: D allowed employee to clean machines w/ gas in small room w/ open flame. Rat covered in gas caught
fire and caused explosion and employee died. While manner of explosion unusual, explosion was exactly
type of accident to be anticipated using gas in small room so D liable.
iv. Breach of duty does not necessarily prove proximate cause- EX: crankshaw v. Piedmont driving club
c. Substantial Factor Test:
i. also used in lieu of “but for” for actual cause in cases involving multiple ind. sufficient causes
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ii. Thorne: to recover damages in negligence action, P must show that Ds negligent conduct was a substantial
factor in bringing about Ps harm, w/o presence of intervening act sufficient to break causal connection.
iii. Factors in determining whether actor’s conduct is substantial factor in bringing about harm to another:
1. 1. Other contributing factors & extent of their effect, 2. Whether actor’s conduct created force or series
of forces in active operation up to time of harm, or has created a situation harmless unless acted upon
by other forces for which actor is not responsible, 3. Lapse of time.
d. Superseding Causes: a third party’s intervening act (occurring after the Ds negligence) that was not reasonably
foreseeable from the standpoint of the D.
i. Bush head: though 3rd party conduct typically severs chain of P.C. b/w P & D, chain remains unbroken
when 3rd party’s intervening intentional act is reasonably foreseeable.
ii. Security: D argues actions of robber, not its employees, were direct cause. But, its reasonably foreseeable
that negligently installing emergency button would result in failure to have authorities properly notified
e. Thin skull, fragile psyche rule: principle which states particularly fragile victims should be fully compensated
for their losses, even where the damages arising out of their predisposing condition were not foreseeable to the
Ds particular susceptibility
a. Rescuer’s Rule: allows an injured rescuer to sue the party which caused the danger requiring the rescue in the
first place. Serves 2 functions:
i. 1) informs a tortfeasor it is foreseeable a rescue will come to the aid of the person imperiled by the
tortfeasor’s actions, & the tortfeasor owes the rescuer a duty similar to the duty he owes the person he
imperils. 2) the rescue doctrine negates the presumption that the rescuer assumed the risk of injury when he
knowingly undertook the dangerous rescue, so long as he does not act rashly or recklessly
i. Elements: 1. D was negligent to the person rescued & such negligence caused the peril or appearance of
peril to the person rescued; 2. The peril or appearance of peril was imminent; 3. A reasonably prudent
person would have concluded such peril or appearance of peril existed; 4. Rescuer acted with reasonable
care in effectuating rescue. (Rescuer must still show D proximately caused his injuries.)
Strict Liability: (liability imposed in absence of negligence or intentional conduct because 1) D introduced something
dangerous into community which is not normally there, 2) D reaps the benefit, so D should bear the burden, 3) encourage
actor to shift location of conduct, 4) D engaged in uncommon activity which poses high degree risk which not reciprocal
-strict liability should apply to activities so inherently dangerous that the level or risk will remain high despite all
reasonable efforts to reduce it
I. Unusually Dangerous Activities:
a. A) an actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm
resulting from activity.
b. B) An activity is abnormally dangerous if: 1) the activity creates a foreseeable & highly significant risk of
physical harm even when reasonable care is exercise by all actors; & 2) the activity is not one of common
usage.
i. An activity that involves great & irreducible risk will not support strict liability if it is a matter of common
usage. i.e. driving
II. Wild & Trespassing Animals
a. Wild Animals:
i. An owner or possessor of a wild animal is subject to strict liability for physical harm caused by wild animal
ii. a wild animal is an animal that belongs to a category of animals that have not been generally domesticated
& that are likely, unless restrained, to cause personal injury
iii. Rationale: keeping a wild animal in a community us an uncommon, unnecessary & highly dangerous
activity.
b. Trespassing: an owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the
land of another is subject to strict liability for physical harm caused by the intrusion
c. Abnormally Dangerous Animals: an owner or possessor of an animal that the owner or possessor knows or has
reason to know has dangerous tendencies abnormal for the animal’s category is subject to strict liability for
physical harm caused by the animal if the harm ensues from that dangerous tendency
i. i.e., pets and domesticated animals. if owner knows dog known for biting
III. Defenses: Ds best argument to avoid strict liability in such cases is that the activity is one of common usage.
a. Scope: strict liability does not apply: a) if the person suffers physical or emotional harm as a result of making
contact w/ or coming into proximity to the Ds animal or abnormally dangerous activity for the purpose of
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securing some benefit from that contact or that proximity; or B) if the D maintains ownership or possession of
the animal or carries on the abnormally dangerous activity in pursuance of an obligation imposed by law.
Products Liability: manufacturer owes duty of care to anyone beyond purchaser who might foreseeably use the articles.
– MacPherson v. Buick.
I. Manufacturing Defects : plans were not followed
a. Tobacco: P has manufacturing defect claim when finished product deviates, in terms of its construction to quality,
from specifications or planned output in manner that renders it unreasonably dangerous. -TX.
b. P need not show negligence led to defect, or that manufacturer should have discovered defect. P need only establish:
1) defect existed, 2) defect made product unreasonably dangerous, & 3) caused her injury
II. Design Defects: when idea or plans for a product render it unreasonably dangerous
a. Consumer Expectation test: A product is unreasonably dangerous if it is dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics.
b. Risk Utility Test: whether the product’s design represents a fair balance between the cost of designing th product to
prevent the risk of injury, the effect of redesign would have on the utility of the product, & the extent of the risk that
the product poses.
i. A product is defective if a reasonable person would conclude that the magnitude of the scientifically
perceivable danger as it is proved to be at time of trial outweighed the benefits of the way product was so
designed as marketed. Factors: 1)usefulness & desirability of product to user & public, 2)safety aspects of
product likelihood that it will cause injury & seriousness of injury, 3)availability of substitute product
which would meet same need & not be as unsafe, 4)manufacturer’s ability to eliminate unsafe character of
product w/0 impairing its usefulness or making too expensive, 5)user’s ability to avoid danger by exercise
of care, 6)user’s anticipated awareness of dangers inherent in product & their avoidability bc of general
pub. Knowledge of obvious condition of product, 7)feasibility, on part of manufacturer
ii. Alternative Feasible Design Requirement: some courts hold under risk utility a mandatory prerequisite for
finding design defect is Ps proof of an alternative feasible product.
1. Must P prove alternative feasible design? – Yes in Texas. Feasible = cost, availability of materials,
whats knowable at time.
III. Warning/Marketing Defect: failure to provide warning
a. Duty to Warn: manufacturer may be held strictly liable or liable for negligence when it has reason to known through
ongoing reviews of studies, research, reports & scientific literature that its product may be dangerous during use &
fails to warn consumer. – R2d “a product has marketing defect bc of inadequate instructions or warning when the
foreseeable risks of harm posed by product could have been reduced or avoided by provision of reasonable
instructions or warnings by seller.
i. Reed & Heed Presumption: Bc P must demonstrate that any defect caused Ps physical harm, this doctrine
provides that if the required warning had been given, the P would have read it & abided by the warning to
protect herself from injury.
b. Common Knowledge Exception: only arises when it is beyond dispute that risk was a matter of common knowledge
at relevant period of time & place.
i. R3d. a product seller not liable for failing to warn regarding risks that should be obvious to or generally
known by foreseeable product users. Warnings of abvious or generally known risk in most instances will
not provide effective additional measure of safety. Furthermore, warnings that deal with obvious or
generally known risks may be ignored by users & consumers & may diminish significance of warnings.
IV. Defenses:
a. Effects of P’s negligence: contributory negligence, comparative fault, assumption of the risk, misuse.
b. Open & obvious danger
State of the art – not a defense
Affirmative Defenses
I. Contributory Negligence & Comparative Fault
a. Contributory Negligence: (bars P completely).
b. Comparative Fault Reform: Ps negligence reduces her recovery, but does not usually bar it)
i. Decision to Switch to Comparative Fault: more modern than contributory negligence. It replaces the all-or-
nothing approach to contributory negligence with a system that reduces a party’s damages to account for
her fault.
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1. Pure Comparative Negligence: a p’s damages are reduced in proportion to the % negligence attributed
to him; ex: p responsible for 90% of the negligence that caused injuries, may recover 10%
2. Modified Comparative Negligence: (bars claimant from any recovery if her negligence reaches a
certain level, but they set the level at the point where ps negligence either equals or exceeds that of Ds)
a. Not-As-Great-As: if Ps negligence less than Ds. P recovers her damages, reduced by her
percentage of fault, so long as her fault was not as great as that of D or Ds. If Ps fault was 50% she
would recover nothing under this jurisdiction.
b. Not-Greater-Than: if P’s fault 50%, P recovers 50%. Contributory negligence shall not bar
recovery in an action by any person if such negligence was not greater than the negligence of the
person against whom recover is sought or was not greater than the combined negligence of the
persons against whom recovery is sought.
3. Con: could bar someone from recovery on the basis of a 1% difference
ii. Apportionment Problem
1. Factors for assigning percentages of responsibility to each person whose legal responsibility has been
established include: a) the nature of the person’s risk-creating conduct, including any awareness or
indifference w/ respect to the harm created by the conduct; & b) the strength of the causal connection
between the person’s risk-creating conduct & the harm
iii. Multiple Tortfeasors in Modified Comparative Fault
II. Assumption of the Risk: principle that the party is master of his own fate, with the right to choose a course of action
& responsibility to accept the consequences of the choice. A person who is aware of a risk, & knowingly decides to
encounter it, accepts responsibility for the consequences of that decision, & may not hold a D who created the risk
liable for resulting injury.
a. Express Assumption of the Risk: (where P has promised not to hold D liable for its own negligence prior to the
injury) when D pleads P has previously agreed to assume the risk of injury due to Ds negligence, D must
overcome 2 hurdles: 1. That the exculpatory clause does not offend the court’s view of public policy in terms of
its enforcement, & 2. That the clause was worded with sufficient clarity to release the D from liability for the Ps
actual injuries. – can be written or oral
i. Public Policy Hurdle: only an exculpatory provision that does not involve the public interest may be
upheld. The public interest concerns any business that is subject to pubic regulation & performs necessary
services to a great number of people.
ii. Drafting Hurdle: exculpatory clauses in Ks releasing individuals & entities from their own future neg. are
strictly construed against the party claiming the benefit. The exculpatory clause must contain unambiguous
language to absolve a D from liability. Generally, exculpatory clauses in Ks are not against public policy.
However, such clauses must clearly & explicitly inform the party signing the K that the K is exonerating an
individual or entity from acts of future negligence. Most states enforce such clauses only when they include
specific references to the drafter’s negligence or fault, sometimes referred to as the express negligence
doctrine.
b. Secondary Implied Assumption of the Risk: (where P has knowingly & voluntarily decided to encounter a risk
previously created by Ds negligence) Elements: 1. Actual knowledge of the danger; 2. Appreciation of the
gravity of the danger, & 3. Voluntary exposure to the danger. (knowledge of the danger can be established if the
danger was so obvious that one was bound do know of it.)
i. Qualified Secondary Implied Assumption of the Risk
1. If P makes a knowing choice to encounter the risk negligently created by D, & that choice is a
reasonable one, most courts today that apply comparative negligence would allow P to recover fully,
since her conduct was not faulty & should not reduce recovery.
ii. Unqualified Secondary implied Assumption of the Risk: (apply assumption of the risk with the
qualification that the doctrine is only applicable when the decision by the P to voluntarily encounter a
known risk was an unreasonable decision)
1. If Ps choice to encounter the risk was an unreasonable one, this is negligent conduct. Most courts that
apply comparative negligence treat this form of assumption of risk as a type of Ps fault. Thus, jury will
be instructed to assign a percentage of fault to the P if they find that she negligently chose to encounter
the risk.
iii. Does Comparative Fault Abolish Secondary Implied Assumption of the Risk?
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1. A P may be absolutely barred from recovery where he expressly assumes the risk of injury created by
Ds negligence.
III. Immunities
a. Sovereign: the principle that a government may not be sued in its own courts w/o its consent.
i. Federal Government
1. Cestonaro v. US- rule: the US may be sued for a federal agency’s performance of a discretionary
function or duty if the conduct is not grounded in the social, economic, or political goals of the agency.
a. Courts apply a 2-part analysis to determine whether the discretionary-function applies, asking: 1)
whether the action or inaction at issue was m&ated by a law or regulation & 2) whether the federal
agency’s action or non-action was rooted in the social, economic, or political goals of the agency.
2. FTCA: purpose is to make US liable in the same manner & to the same extent as a private individual
under the circumstances. But the FTCA’s waiver is tempered by several exceptions: (discretionary
function exception) that withdraws the waiver of sovereign immunity with regard to: “any claim based
upon the exercise or performance or the failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the gov. whether or not the discretion involved be
abused.”
b. Spousal & Parental Immunity
i. Spousal:(in most states this immunity has been abolished, in whole or in part)
1. TX: under tort law, spouses may sue each other for personal injury. Traditionally, the common law
treated husb& & wife as 1. Even after some courts did away with 1-person, some courts justified
upholding spousal immunity to preserve marital harmony & avoid collusion. TX already allows to sue
spouse in property & Ks. Although collusion is possible, courts sophisticated to detect fraud.
2. Policy: our result compelled y fundamental proposition of pub.pol. that courts should afford redress for
a wrong, & the failure of the rationale supporting the doctrine to withst& scrutiny.
ii. Parental: (the principles of parental immunity formulated by: “the peace of society, & of families
composing society, & a sound public policy, designed to subserve the repose of families & the best
interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil
redress for personal injuries suffered at h&s of parent.” – MS. (this case has been followed by majority of
state courts bc need to preserve family unity & prevent collusion)
1. Ariz: parental immunity bars minor child from filing suit against his parents related to avtivities
involving discipline, care & control of child.
2. Parental immunity would shield parents from liability where negligent act involved an exercise of
parental authority over the child or where negligent act involved an exercise of ordinary parental
discretion with respect to the provision of food, clothing, housing, medical & dental services & other
care. When parent had a duty to the world at large, then can be liable
3. Punishment: so long as it involves good faith use of reasonable force of imposition of punishment in a
way that is necessary to control, train & educate the child, immunity exists.
IV. Statutes of Limitation & Repose
a. Statutes of Limitations: typically run from the date a cause of action accrues, which is either the date of injury
(damage or legal injury being last element of tort action), or when the discovery rule applies, the date that P
knew or should have known of a possible claim.
i. N.Mexico: the SOL for tort claim runs from the date of injury & is not tolled during settlement negotiations
ii. TX: the discovery rule tolls the SOL in cases involving fraud or when the resulting injury was inherently
undiscoverable & evidence of the injury is objectively verifiable.
1. A person must bring suit for personal injury no later than 2 years after day the cause of action accures.
If a person entitled to bring a person action is under a legal disability when the cause of action accures,
the time of disability is not included in the limitations period. For purposes of this subchapter, a person
is under a legal disability if the person is : 1) younger than 18. TX says she has until 20th bday to sue.
2. Inherently undiscoverable likely satisfied in this case given special relationship b/w parent & child &
evidence that some traumas are impossible to recall for certain periods of time.
3. Objectively verifiable element – there must be sufficient, objective evidence or verification of injury to
warrant application of discovery rule.
b. Statutes of Repose: additional or alternative requirement for bringing suit w/I period of time running from date
of particular event, such as date of D’s negligence.
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i. N.Mex: to toll applicable SOL for a med.mal (fraudulent concealment) action a P must show that physician
had knowledge of wrongful conduct & failed to disclose it or concealed it form P & that the P did not know
or could not have reasonably known that a cause of action existed w/i statutory period.
Damages
I. Actual, Compensatory Damages: 3 usual components (medical & related expenses, lost earnings & earning capacity,
pain & suffering)
a. Special Economic Damages
i. Medical & related expenses
1. Past medical expenses: medical & hospital bills, expert testimony.
2. Future medical expenses: P must offer proof of what his future expenses will be (medical expert) &
attach a dollar sums to these future expenses (economic expert)
ii. Lost earnings & Capacity
1. Lost earnings refers to past income losses due to the injury, earnings lost between the time of injury &
time of trial. (can be calculated on Ps earnings record for the period immediately prior to the accident,
evidence of his likely advancement had he not been injured, & evidence concerning changes in the
salary structure of his employer up to the time of trial.
2. Future earning capacity. Jury will have to determine how long P would have worked if he had ot been
injured. (may depend on type of work, life expectancy, state of health prior to injury & level of interest
in his work). Jury will also have to determine what type of work the P would have done if he had not
been injured. (for Ps with long established work history, this may be clear, but in other cases it is not).
(jury consider: prior advancement in job, projected future fortunes of his employer, general state of the
sector of the economy, the prospects that he would have been promoted or moved to a a more lucrative
position with another employer, possible alternative employment)
b. General Noneconomic Damages: (pain & suffering & loss of enjoyment of life)
i. Pain & suffering: includes physical pain from the impact of an accident, but also includes ongoing pain
from a wound, or long term discomfort from a permanent condition such as a lip or weakened back. Also
includes pain of medical procedures such as surgery, grafting or physical therapy.
ii. Loss of enjoyment of life: (loss of the opportunity to engage in many of life’s pleasurable activities.
II. Limitations on Actual Damages
a. Failure to Mitigate: places obligation on victim to exercise reasonable care to reduce or mitigate actual damages.
i. R2d §918. One injured by tort of another is not entitled to recover damages for any harm that he could have
avoided by the use of reasonable effort of expenditure after the commission of the tort.
b. Seat-Belt Defense: TX: hold that relevant evidence of use or nonuse of seat belts is admissible for the puspose of
apportioning responsibility in civil suits.
c. Collateral Source Rule: forbids the reduction of the claimant’s actual damages by virtue of the claimant’s receipt of
any benefit from 3rd party (insurance) that offset the harms for which the claimant seeks recovery from tortfeasor.]
i. Policy: expresses judgment in factor of encouraging citizens to purchase & maintain insurance for personal
injuries & other eventualities. Also, embodies venerable concept that a person who has invested years of
insurance premiums to assure his medical care should receive the benefits of his thrift & the tortfeasor
should not.
d. Statutory Limits: limit recovery of actual damages, mostly to med.mal. claims.
III. Punitive Damages: awarded in tort cases to punish D for particularly egregious conduct, & to deter such conduct in
future.
a. When Civil Punishment is Permitted
i. Malicious Conduct: (N.C. recovery of punitive damages in action for assault & battery is permissible upon
a sufficient showing that Ds actions were accompanied by an element of aggravation such as malice,
oppression, or gross & willful wrong, or a wanton & reckless disregard to Ps rights.) (to recover punitive
damages in N.C. P must provide proof of actual or express malice – a sense of personal ill will toward P on
behalf of D that he intended to commit the tort).
ii. Corporate Liability for Reckless Conduct: 2-pronged nature of showing gross neg.: 1) objectively, Ds
conduct created substantial probability of serious danger to P, 2) D had subjective awareness of risk of
harm arising from its actions but made the conscious decision to disregard risk.
1. Corp. also liable if it commits gross neg. through actions or inactions of vice principal: 1)corporate
officers; b)those who have authority to employ, direct & discharge servants of master; c)those engaged
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in performance of nondelegable or absolute duties of maser: & d)those to whom master has confided
the management of the whole or a department or division of business.
b. The Amount of Punitive Damages: under common law, no real measure for amount of punitive damages other than
jury should find suitable in light of the following considerations: the nature of the wrong, character of conduct
involved, degree of culpability of wrongdoer, situation & sensibilities of parties concerned, extent to which such
conduct offends a public sense of justice & propriety, & net worth of D.
i. Due Process Limits: awards of punitive damages by state courts that exceed a single-digit ration between
punitive damages & compensatory damages are usually “grossly excessive” & violate due process clause.
1. Test to determine whether damages grossly excessive: 1) degree of reprehensibility of Ds misconduct;
2) disparity b/w actual or potential harm suffered by P & punitive damages award; 3) the diff. b/w
punitive damages awarded by jury & the civil penalties authorized or imposed in comparable cases.
ii. Statutory Limits:
Apportionment
I. Joint & Several Liability: each D is liable for full amount of Ps damages, & may be sued for those damages either
singly or alone with the other tortfeasors.
a. Contribution: allows a neg. tortfeasor who has paid more than his pro rata share of Ps damages to recover
contribution from other tortfeasors who are liable for the same injury. A party is only liable for contribution if they
are a joint tortfeasor.
b. If P settles with one tortfeasor, does not release other tortfeasors
c. Policy: P should be fully compensated as long as at least 1 of the tortfeasors is able to pay the judgment. However, it
can lead to unfair results.
II. Several Liability: individual tortfeasors pay only a part of Ps damages.
III. R3d: Apportionment of Fault:
a. §12Intentional tortfeasors: each person who commits tort that requires intent is jointly & severally liable for any
indivisible injury legally caused by tortious conduct.
b. Tortfeasors Liable for failure 2 Protect P from Specific Risk of Int. Tort. A person who is liable to another absed on
failure to protect the other from specific risk of int. tort is jointly & severally liable 4 the share of comparative
responsibility assigned to intentional tortfeasor in addition to the share of comparative responsibility assigned to the
person.
c. J&S liability for Ind. Tortfeasors. If the ind. tortious conduct of 2 or more persons is a legal cause of an indivisible
injury, the law of the applicable jurisdiction determines whether those persons are J&S liable, severally liable, or
liable under some hybrid of J&S & several liability.
d. Liability of Mul. Tortfeasors for Indivisible Harm. If ind. tortious conduct of 2 or more persons is legal cause of
indivisible injury, each person is J&S liable for the recoverable damages caused by conduct.
e. (same title ^) If 2 or more person’s ind. tortious conduct is legal cause of indivisible injury, each D, subject to
exception stated in §12, is severally liable for the comparative share of Ps damages assigned to that D by factfinder.
f. (same) If ind. tortious conduct of 2 or more persons is legal cause of indivisible injury, each person is J&S liable for
recoverable damages caused by tortious conduct, subject to reallocation provision of §C21.
g. §C21.(a) except as provided in (b), if D establishes that a judgment for contribution cant be collected fully from
another D, the court reallocates the uncollectible portion of damages to all other parties, including P, in proportion to
the percentages of comparative responsibility as signed to the other parties.
IV. Equitable Doctrines Creating Joint Liability
a. Vicarious Liability: A master is subject to liability for the torts of his servants committed while acting in the scope
of their employment.
i. Elements of Respondeat Superior:1) the relationship of master & servant must exist, with the primary tortfeasor
being the servant & the party sought to be held vicariously liable being the master. 2) when the servant
committed the underlying tort, he must have been acting within the scope of their employment.
1. Control. – the main difference between an employee & independent contractor is control. If the employer
exercises significant control over the employer’s actual work, trains the employee, has an ongoing &
indefinite, continual relationship w/ employee, & supplies tools & workplace, if the employee does not
carry on an ind. business, then you likely have an employee.
ii. Policy: sometimes employer should pay bc she can select & control her employer, deep pocked D able to pay Ps
damages, employee acts for the master in the performance of the master’s work
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b. Concert of Action: Persons acting in concert who cause an indivisible injury are jointly & severally liabe for the
injury, regardless whether independent tortfeasors causing the same injury would be severally liable or jointly &
severally liable.