BATTERY
1) Intent  harmful or offensive contact
2) Harmful or offensive contact results
► RST or White v. U. of Id. approach?
• Eggshell Plaintiff Rule (Vosburg)
TRESPASS
• To Land: Harm is not required
• To Chattels: Harm is required
NECESSITY
• Necessity gives privilege to use land
• Conditional Privilege - liable for harm
THE REASONABLE PERSON
• Objective standard. Ordinary person
• Lower standard for children
◦ But, not when doing adult activities
• Insanity a defense if
◦ Lack of control or understanding of
duty, AND ◦ Lack of forewarning
• Disability lowers standard to reasonable
person with that disability (Fletcher)
CALCULUS OF RISK
• Burden < Probability x Severity
CUSTOM
• Relevant & persuasive, not dispositive • Increased chance of harm - Δ liable if:
• Departure from custom can show neg.
◦ Same for Δ’s private rules of conduct
• Dispositive in medical malpractice
• Doctors: Duty to inform Π of risks if
knowledge would affect his decision
STATUTES/REGULATIONS
• Negligence per se if
◦ Law designed to protect against type • Alternative Liability (Summers)
of harm that occurred, AND
◦ Π in class of people protected by law PROXIMATE CAUSE
• Defenses: Necessity and Capacity
• Two ways of predicting result
◦ Legislative history, or does violation
of law increase risk of harm to Π
• Courts liberal in interpreting purpose
• Compliance with law relevant, not disp. 1) Must increase risk of harm, AND
RES IPSA LOQUITUR
1) Event usually doesn’t occur w/o neg.
2) Cause within exclusive control of Δ
3) Not due to voluntary act of Π
• Shifts burden to Δ for circum. evidence • ◦ 3rd party act must be foreseeable
“Smokes out” evidence w/ multiple Δs
CONTRIBUTORY NEGLIGENCE
• Affirmative defense, burden on Δ
• Excuse for private necessity
• Harm must be within the risk (causal)
COMPARATIVE NEGLIGENCE
• Comp. negligence, NOT causation
• Pure or Modified
ASSUMPTION OF RISK
• Primary: Δ breached no duty, not neg.
• Secondary: Unreasonable, Π is ContN
• Waiver: Tunkl factors (see reverse)
• Reasonable assumption: fork fork!
DUTY TO RESCUE
• No duty to rescue, unless law imposes,
special relationship, or if Δ caused the
harm (even if non-negligently).
SPECIAL RELATIONSHIPS
• Generally, no duty to control 3rd party
• Exception: Exclusive control of Δ, e.g.
landlord (Kline). Must be foreseeable
• Exception: Necessary to avert danger
◦ Target IDed by 3rd party (Tarasoff)
◦ Δ facilitated commission of crime
◦ Δ breached promise to warn Π (Long)
LANDOWNER LIABILITY
• Traditional Categories
◦ Invitees: remove traps
◦ Licensees: warn of traps
◦ Trespassers: don’t set traps
• Rowland Factors (see reverse)
• Attractive Nuisances (see reverse)
CAUSE-IN-FACT
• “But for” Δ’s conduct, what happens?
• Burden shifts to Δ if lack of proof due
to Δ’s negligence (Lone Palm Hotel)
◦ Act wrong b/c it ↑ chance of harm
◦ AND, that type of harm occurs
• Joint Liability - All Δs fully liable if:
◦ Joint tortfeasors
◦ 2 independant tortfeasors, harm indiv
◦ 2 subsequent torts, harm indivisible
• Lost chance of survival (Herskovitz)
• Market Share Liability (Sindell)
• Three views
1) Harm within the risk (fseeability)
2) Causal connection
3) Policy judgment (Andrews)
• For proximate cause
2) Harm must be within the risk
This test is sufficient but not necessary
• Intervention of 3rd parties
◦ Liability only if ordinary and natural
◦ Usually for neg., not for int. torts
• Foreseeability of rescue, Π’s reaction
• Four Categories of Unforeseeability
◦ Extent of harm: Δ liable (eggshell Π)
◦ Manner of harm: Δ liable (Nugent)
· Waters must become placid again
◦ Plaintiff: Δ not liable (Palsgraf)
◦ Type of harm: Fork! Factors
· Directness of harm
· Degree to which it resembles an
unforeseeable type or extent
· If Δ’s negligence caused other harm
for which he is liable, thereby not
totally clearing him from liability
EMOTIONAL HARM
• Impact Rule: Physical harm required
• Zone-of-Danger Rule: Π must be in
zone of danger of being harmed by Δ
• Closely Related Bystander (Dillon)
1) Π located near accident (proximity)
2) Π witnessed accident (visibility)
3) Π and victim closely related
ECONOMIC HARM
• No liability except spec. relationship,
public nuisance, intentional harm
• Each piece of harm must be fseeable
PAIN AND SUFFERRING
• Cognitive awareness required?
• Goals, commensurability, etc.
PUNITIVE DAMAGES
• Malicious intent necessary
• BMW v. Gore – Three Guideposts
1) Reprehensibility of Δ’s conduct
2) Disparity b/w harm & pun. award
3) Diff b/w award & civil penalties
• Multiplier can’t exceed single digit
STRICT LIABILITY
• Key: Uncommonness, dangerousness
• Natural vs. Unnatural, acts of God
• Harm must also be foreseeable
ABNORMALLY D. ACTIVITIES
• See outline for RST’s factors
• Social utility as a consideration?
VICARIOUS LIABILITY
• Int. torts: “characteristic to workplace”
• Scope of Employ: Detour vs. Frolic
• Independent Contractors
◦ Apparent and Implied Authority
PRODUCTS LIABILITY
• Manufacturing Defects: Π must show
(1) It departed from intended design
(2) It caused injury
• Failure to Warn: Foreseeable risks
could have been prevented by warning
Design Defects
• Consumer Expectations Test: Product
defective if it fails to perform as safely
as a consumer in Π’s position would
reasonable expect it to
◦ Allows Open & Obvious exception
• Risk-Utility Test: Product defective if
benefits of design outweighed by costs
◦ Must Π show reasonable alternative?
◦ Halliday: Test not used for gun
► Which test will court use? (or both?)
• Foreseeability of harm, not intended
use, is what matters (Volkswagen)
• Wade’s Unreasonable Dangerous
Factors (see reverse)
• RST Comments (see reverse)
Federal Preemption
• Nature of duty: Floor vs. ceiling
TERRY: 5 FACTORS OF NEGLIGENCE
1) The magnitude of the risk.
2) The value or importance of that which is exposed to the
risk, which is what law seeks to protect
3) The value of what the person taking the risk is pursuing
4) The probability that it will be attained by the conduct
which involves risk (utility of the risk)
5) The probability that it would not have been attained
without the risk (the necessity of the risk)
RST § 339: ATTRACTIVE NUISANCE
Landowner liable for harm caused by artificial conditions if:
• Owner knows or has reason to know children are likely to
trespass, AND,
• Owner knows or has reason to know condition involves
unreasonable risk of harm, AND
• Children, because of their age, won’t realize the risk, AND
• Burden of eliminating danger slight compared to risk to
children, AND
• Owner fails to exercise reasonable care to eliminate danger
or protect children
Note: Most courts do not apply this to natural conditions
ROWLAND FACTORS
• Foreseeability of harm (breach)
• Degree of certainty of harm (damages) (causation)
• Closeness of connection b/w Δ’s conduct and Π’s harm
• Moral blame of Δ’s conduct (fairness)
• Prevention of future harm (deterrence)
• Consequences to Δ and community by imposing duty
• Availability and cost of insurance (compensation)
FACTORS FOR MARKET SHARE LIABILITY
• All named Δs are potential tortfeasor
• Harmful products identical, share same qualities (fungible)
• Π unable to identify particular Δ who caused her harm
through no fault of her own
• Substantially all manufacturers who created product during
relevant time are named as Δs
BMW v. Gore: Degree of Reprehensibility of Δ’s Conduct
• Harm is physical as opposed to economic
• Conduct evidenced indifference or reckless disregard for
human health and safety
• Target of conduct has financial vulnerability
• Conduct involved repeated actions, not an isolated incident
• Conduct was the result of intentional malice, trickery, or
deceit, instead of just a mere accident
§ 520: ABNORMALLY DANGEROUS ACTIVITIES
a) Existence of a high degree of risk of some harm to
another person or his property
b) Likelihood that the harm that results will be great
c) Inability to eliminate the risk by the exercise of
reasonable care
d) Extent to which activity is not a matter of common usage
e) Inappropriateness of the activity to the place where it was
carried on
f) Extent to which its value to the community is outweighed
by its dangerous attributes
► RTT scraps social utility (f) as a consideration.
RST COMMENTS ON PRODUDCTS LIABILITY
f) Seller must be in the business of selling. Does not apply
to the occasional seller
g) Must be in defective condition when it reaches buyer, not
by subsequent acts
h) Seller not liable if injury results from abnormal handling
i) Product must be unreasonably dangerous. Must be
dangerous to an extent “beyond that which would be
contemplated by the ordinary consumer who purchases it”
j) Seller must give warnings for dangers that are not generally
known and recognized. If warning given, and product is
safe if followed, it isn’t unreasonably dangerous
k) If product is unavoidably unsafe, but prevents a greater
harm (e.g. a rabies vaccine), it is not defective or
unreasonably dangerous. Seller not liable
n) ContN of Π is not a defense, but if Π sees danger and
unreasonably continues use, this is an assumption of risk,
and is a defense. If Π discovers a defect and continues
unreasonably to use the product and is injured, he’s barred
from recovery
◦ Note: Although RST took no position on bystander’s
recovery, law now allows it
FACTORS IN RISK-UTILITY TEST
• Gravity of danger posed by challenged design
• Likelihood such danger would occur
• Mechanical feasibility of a safer alternative design
• Financial cost of an improved design
• Adverse consequences to product and consumer that would
result from an alternative design
Unreasonably
Wade’s Factors in Determining if Product is Dangerous
• Usefulness and desirability of the product – utility to user and
public as a whole
• Safety aspects of the product – likelihood it will cause injury,
probable seriousness of injury
• Availability of a substitute product that would meet the same
needs and not be unsafe
• Ability to eliminate unsafe trait without impairing usefulness
or making it too expensive
• User’s ability to avoid danger by exercise of care in use of
the product
• User’s anticipated awareness of dangers inherent in the
product (general public knowledge)
• Feasibility of manufacturer spreading loss by setting price or
carrying insurance
TUNKL FACTORS (for voiding liability waivers)
• Business generally though suitable for public regulation
• Importance of Δ’s service to the public
• Δ holds itself out as willing to provide service to any member
of public who seeks it
• Essential nature of services gives Δ great bargaining strength
• Public faced with adhesion contract; cannot pay reasonable
fees for negligence protection
• Purchaser placed under Δ’s control, subject to risk and
carelessness by Δ