Intentional Torts

1) Battery - the purposeful actual touching either direct or indirect

a) A Acts
b) Indenting to cause contact
i) Intent to cause contact not to cause injury (Volsberg, Cole, Wagner
(1) Volsberg-kid kicking feet, eggshell kneecap, Intent inferred from activity
(2) Cole horseplay kick in the butt, was battery,
(3) Wagner- Kmart beating
ii) Substantial certainty- pretty sure this will result- Subjective (Garrett v dailey,)
(1) Garrett 6 y/o pulls chair away- battery
iii) Intent can be transferred (in re white)
(1) White-gun for one guy hits another
TRANSFERRED
INTENT

SAME VICTIM

SAME TORT

No need to transfer intent Talmage v. Smith

(threw stick at group hits
random member=ok transfer)

CANNOT
assault property

DIFFERENT
TORT

Nelson v. Carroll
(threated with gun and
accidently hit person)

Lynn v. Burnette
(Intent does not transfer) She is
still liable through negligence.

DIFFERENT VICTIM

White v. Davis=ok transfer

(attempting assault -> Battery)

PROPERTY

c) That contact is harmful or offensive

i) Harmful contact (Cecarelli),
(1) Cecarelli- dance beating
ii) Offensive contact (Holbrook)
(1) Prior knowledge, ordinary person standard An Objective standard.
(2) Holbrook- Creepy shoulder massage
d) As act causes contact-infiltrates protective zone.
i) Smoke, gas, air, animals, doctrine of extended personality all count
ii) Fisher(dinner plate=extended personality) Leichtman(smoke)
e) Battery Defenses
i) (1) Nature of relationship that touching was not offensive (3) contact that of a type neither harmful or
offensive
2) Assault
a) A Acts
b) Intending to cause B apprehension
i) Intent can be transferred (In Re White-see above)
c) of imminent harmful or offensive contact with B
i) same as battery
ii) Immediacy matters
d) As act causes B to reasonably apprehended contact
i) words alone dont count(Brooker(words alone) v Vetter(words plus ability to presently act)
(1) Brooker-phone operator verbally threatened=No Assault
(2) Vetter-Women drives off road after verbal threats from nearby car.=Assault

Negligence-Injury+Duty+Breach+Causation
3) Defenses To ASSAULT AND BATTERY
a) Consent
i) Implicit
(1) Activity becomes consent-Koffman
(a) Kaufman-Football tackle by coach=battery, no assault
(2) Unconsciousness
(3) Inherently Crowded Places
(4) Prior History
ii) Mistakes
(1) Actually and reasonably believed consent given (OBrein)
(a) OBrein-standing in line for shot=implied consent
(2) If Consent could have, Should have, would have been given Consent(Koffman)
iii) Consent to Help
(1) Help in situations of danger-GOOD SAMARITIAN
b) Responses to Consent Defenses
i) Consent came during duress, Fraud, or Trickery,
ii) Consent came from one with diminished mental capacity-Minor, Mentally Ill, Drunk[weakest defense
when self-induced strong when not( Phelps-Budweiser girl wakes up next to dude after being drugged)
iii) Action was beyond scope of consent (Mohr- consent to operate on 1 ear Consent to operate on other.
iv) Action was Illegal and made illegal to prevent harm that occurred I.E. Illegal Boxing injuries
c) Self Defense Rules
(1) Must be actual and Reasonable belief of harm
(a) Mistakes can be allowed under certain rare circumstances
(2) Uses force only to protect himself
(3) Verbal Provocations may NOT be grounds for self defense
(a) But in presence of assault may be allowed
(4) Use Degree of Force necessary, nothing more
(5) Deadly force requires one using such force to be at risk of such force
(6) Duty to Retreat
(a) Unless Stand Your Ground State
(7) If you start force, your banned from using force again as a defense
(a) Unless its separate incidents
(8) Rarely includes property(katko-spring trapsok
(9) Can Defend
Others under
same rules
4) Comparative Fault
rarely available, but
Punitive Damages are
available
Spivey- intended contact
causes face
paralysis=negligence- outlier

Negligence-Injury+Duty+Breach+Causation

Injury
1) Physical harm, 2) Loss of Wealth, 3) Emotional Distress

Duty ISSUE FOR JUDGE TO DECIDE

1. General Duty of Reasonable Care
a. Owed to all reasonably foreseeable individuals (Thomas, MacPherson, Losee, loop, winterbottom,
Statler, Devin)
i. Reasonable person standard
ii. Duty Exists for things probably dangerous, not just mearly possibily dangerous Thomas
(mislabeled poison=duty), MacPherson(Wheel disintegrated=duty), Losee (tested Steamboiler
exploded=no duty[testing]), Loop (5Yearlater wheel bust=no duty), Winterbottom (Wheel sold
by d to x->y->p no duty for d to p), Statler (knew of faulty Scafolding=duty), Devin (coffee
maker knew dangerous if not made properly)
iii. Known of Should have known Duty to warn (Mussivand-STD goes Doctor->Ps wife>P=duty to warn
1. Foreseeable that carelessness could cause harm.
a. Whether a reasonably prudent person would have anticipated injury likely to
result for careless act(or inaction)
2. Duty Created by Statute--See Negligence Per Se(BREACH)
3. Pure Economic Loss
a. General Rule: No duty to avoid pure economic loss to others, without harm to person or property.
i. Minority Rule: Damages for pure economic loss can be recovered under very limited
circumstances by particularly foreseeable plaintiffs.
4. Children
a. Duty of reasonable care of a child of like age, experience, intelligence
5. Professionals- Blurs with Breach
a. Duty of average person of good standing in profession
i. Duty to provide the same level of care as a reasonably prudent professional would in like or
similar circumstances.
6. Qualified Duty of Care
a. Affirmative Duty (duty to Rescue)
i. No duty to Rescue(Osterlind-boat renters drown=no duty -> they were drunk(prof they got it
wrong)
UNLESS
1. Peril caused by =Duty to rescue
2. Voluntary Undertakings=Duty to Rescue once rescue is undertaken, rescuer owes a
duty to victim to preform rescue with reasonable care
3. Good Samaritan Law can Protect sometimes
4. Special Relationships-owe duty to protect from harm and give aid if injured until help
arrives
5. Common Carrier, Inn Keeper, Business invitees(Baker-taco bell case), Employee/er,
Hospital Patient, Prison-Prisoner, School Student, Friends(Farwell-hurt friend dies in
back on joyride companions on a social venture)= duty to aid until help arrives
b. Premises Liability-duty to maintain safe premises
i. Invitee invited for business purposes, owe duty to keep safe
ii. Licensee owe duty to warn of damages(Rowland)
iii. Trespassee -- owe duty to not intentionally or willfully injure them
1. Must warn about defects of property for such trespassers

Negligence-Injury+Duty+Breach+Causation
Leffer- invited for business trespasser when left to go onto the roof.
iv. Hybrids
1. Duty to all on property with your permission(Invite+Licencee)
2. Invitee v. licensee liability: Businesses likely have more funds to protect people coming
onto their property and thus has a higher threshold.
i. Liability may extend off your property too.
v. Rowland FACTORS-(broken sink- really about insurance)-helps create affirmative duty
1. Foreseeability of harm to P
2. Degree of certainty that P suffered an injury
3. Closeness of connection b/w injury and D's actions
4. Moral blame
5. Preventing future harm
6. Extent of burden on D and community consequences of duty
7. Availability of insurance
c. Duty to Warn 3rd Parties-mostly from licensed professionals(no Clergy)-use Rowland
i. Tarasoff shows how duty is no longer used as a DEFs shield, but as a sword for PLs.
1. Tarasoff- tells psych that hes gonna kill girl, kills girl.)- SEE BREACH FOR SWORD
ii. Duty exists if the professional can reasonably foresee that the patient poses a substantial threat
of serious physical harm to others.
iii. Goes back to avoid-ability and control and foreseeability for public policy considerations
Meyers-Nursing Hoyer
lift malfunction
insignificant training,
Martin- Truck Backing
from last spot,
Cambell-lawn mowing
shrapnel= ordinary level
of care= duty to inspect,
but no more
Pingaro-Dog
bite=strict
TRESSPAS
Liability

Jones-Doors open
faceplant Bus Highest
level of care Common
Carrier - Qualified Duty
of Care
Adams-Trolly Wire Swinging=Highest level of duty only extends to foreseeability.
Beausoleil- Unlawful Amtrak crossing used often=duty towards trespassers to stop use for safety reasons
Good Samaritan- lay persons = covered-Hirpa (no current duty so rescue can be protected) v. official duties
covered-(Praet- If firefighter no protection saving from fire, already have duty )

Negligence-Injury+Duty+Breach+Causation

Breach FOR THE JURY TO DECIDE

Misfeasance(bad act) v. NonFeasance (Failure to Act)
5 Main ways of proving breach
1). Common sense 2). Balancing(Hand Formula) 3).Custom 4). Statutes (neg per se) 5). Inference of carelessness
(res ipsa loquitur)

1. Reasonable Person Standard

a. The actor has a duty to behave as any ordinary person, acting responsibly, would under the
circumstances. (Vaughn- negligent haystacks)
i. Not adjusted for the actors characteristics or capacities except:
1. Physical disabilities and rarely mental ones
2. Children in most instances
3. Certain professionals acting within the domain of their profession
2. Children
a. Tender Years Doctrine-no negligence if under 7 years old (Appelhans- granny + kid bike
accident)
i. Moving out of majority
b. Negligent Parental Supervision directly liable
i. Knew or should have known minors wrongful tendencies + opportunity to restrain
1. Takes into account- age, competence
3. Professionals
a. Industry and Professional Custom
i. Usually follow what custom is of profession (Johnson-failure to preoxygenate)
1. What reasonable professional would have done (no hindsight)
ii. Sometimes say professional custom is not enough (TJ hooper- barges w/o radios)
1. When logic and custom are opposed -> courts opportunity to change custom.
iii. Sword or shield of custom
1. -Sword - you didnt have it as custom- shame on you
iv. -Shield - it was not custom to have on boats-we didnt know any better
b. Informed Consent
i. Physician based standard(Johnson, Kaplan)
1. reasonably prudent practitioner would have done under like or similar
cirumstances disclosed the information (duty/ standard of care)
2. this physician did not disclose the information (breach)
3. a reasonable patient wouldnt have undergone procedure if info been disclosed
(causation)
4. Kaplan - has burden to similar doc would have given info.
ii. Patient based standard (Canterbury, Largey)(I think majority)
1. Reasonable patient would have found the information material (duty)
2. Physician did not provide the info (breach)
3. Reasonable patient wouldnt have gone forward w/ procedure if risks been
disclosed (causation)
a. Canterbury - Scope of the duty to disclose the patients need based on what
reasonable patient would want to know (what is material)
i. Material- a risk is material when a reasonable patient in same
positon would attach significance to the risk or cluster of risks in
deciding whether to forego the proposed surgery.
b. Largey- physician tests for breast cancer-> further sickness= breach because
not informed of risks

Negligence-Injury+Duty+Breach+Causation
4. Reasonableness, Balancing, Cost Benefit Analysis
a. Hand formula
i. If B<PL, then precautions must be taken
ii. If B>= PL, then the failure to take the precaution is not a failure of proper care.
1. P= probability of harm
2. L= loss (gravity of injuries that would likely result)
3. B= burden of taking precautions adequate to prevent harm
iii. Carroll Towing- barge gets loose, skins, w/o man on board- Formula says B<P+L so
breach
iv. Zapata- bank checks for forged checks randomly- formula says B>P+L so NO breach
5. Res Ipsa Loquitur- The action speaks for itself i.e. (Bryne Barrels dont fall from the sky)
a. Prevents summary judgment based on inability to show breach
b. Covers Breach and bleeds into Actual Causation
c. Used when impossible to really know what happened, mostly in medical realm
d. Test
i. Injury happens in way that normally doesnt happen without carelessness
ii. Injury cased by thing that was in exclusive control
iii. Injury cannot be compairative fault on behalf of
e. Medical Res Ipsa (Kambat- 18x18in pad in gut)
6. Negligence Per Se-on its face
a. Covers all of negligence not just breech
b. Administrative, mostly Legislature, rule defines specific type of conduct
i. Can be non legislative (Bayne- administrative policy of safety rail)
c. But allows exceptions that apply to rule like if the SAFER course of CONDUCT violates the Rule
i. Walk on wrong side of road because its safe
1. Doesnt apply to children who are unaware of their actions
a. Children are given exceptions to negligence torts often
d. Test
i. Is person in class of persons that statue was designed to protect (duty)
ii. Is injury that occurs an event that the regulation was meant to protect against
(Proximate Cause)
1. Dalal- driving without glasses=per se
a. Statute Designed to prevent injury due to loss of vision
2. Victor car on sidewalk P gets hit/paralyzed=no per se
a. Statute not designed to prevent Pedestrians from getting hit by parked cars
iii. Did Violation cause the injury(breach?)

BREACH IN REVIEW
1. Strict negligence
2. Extraordinary care
a. Highest degree of care
under the circumstances.
3. Professional standard of care
a. Almost always requires
expert testimony.
b. Professional v patient

4. Ordinary care
a. Objective standard
b. Exceptions:
i. Children, Physically disabled, Some
cases where rare mental disability
c. Hand formula
d. Neg per se
5. Gross negligence
a. Good Samaritans owe and.... Look this up
6. Wanton and reckless disregard-Owed to Trespassors
a. The lowest standard.

Negligence-Injury+Duty+Breach+Causation

Causation Actual + Proximate

1. But for Test (Substantial Factor[CA]) Skinner (Drum electrocution but for cause of death)
a. Preponderance of the evidence
2. Substantial factor (Multiple Sufficient Causes)
a. An actor's carelessness must be a substantial factor in bringing about an injury in order to be deemed a
legal cause of that injury. Carelessness will be deemed a substantial factor in bringing about an injury
if it continues, and it is impossible to divide the tortfeasors' conduct, they can be found jointly liable.
(McDonald-2 negligent drivers hurt ) vs. (Aldridge-not enough evidence to show Goodyear
chemicals were cause for damages)
b. Your negligence was enough to cause injury on its own.
i. Fires or floods that combine (Anderson combining fire case)
ii. Many courts use the substantial factors test (not same as CA substantial factor) in these cases.
3. Loss of a chance: usually medical cases jxn dependent (Falcon women lost 30% chance to survive)
a. NOT MAJORITY OF JXN
b. % of chance lost x wrongful death damages
c. Blackbox option: where a jury decides what the amount should be.
4. Alternative liability-(summers- hunting accident 1+2 shoot by mistake, no idea who shot hit)
a. Two or more D's independently engage in negligent conduct;
b. That conduct was equally likely to cause the P's injury; and
c. The conduct of only one of them caused the injury.
d. If the above is proven, the burden of proof shifts to the Ds to rebut the presumption of their liability.
Multiple
necessary
causes

McDonald each persons

carelessness
was
necessary

multiple
sufficient casues
flood hypo in
conjunction with a
careless driver
hitting a hydrant.
All sufficient, none
are but for. Many
courts use the
substantial factor
test in these
cases.

alternative causation

conspiracy

concert of action

Summers v. Tice
1) 2 or more def
2) acted indep
3) conduct equally likely to cause injury, and
conduct of only one of them caused the injury,
and there were no other tortfeasors. Failure to
produce evidence is not for failure of trying. P is
entitled to presumption of liability and def has to
rebut.

if Simonson
and Tice
had worked
together.
Existence
of a plan

drag racing. Does

not require
existence of a plant
or undertaking to
injure Bierczynski
v. Rogers Del.
1968.

PROXIMATE CAUSE Aligning the Elements

1. Foreseeability test
a. Wagon Mount Cases (1 vs dock owner- not foreseeable, 2 v other ship was foreseeable)
2. Scope of the Risk
a. Union Pump Co(women falls when cleaning up after fire- no scope, fire pump causing falling post fire
is unforeseeable)
b. Gets tricky when dealing with kids(Jolly-kid hurt fixing up old boat- scope of risk of kids being
around)

Negligence-Injury+Duty+Breach+Causation
3. Other things Considered by Court
a. Foreseeability
i. Kinsmen-boat gets lose, damn doesnt go up, flooding insues- City, boat, and lock owe for
flood damages
1. Foreseeable that city-flooding could happen if damn broke. Boat/Lock-flooding...if
boat got lose
b. Public Policy Considerations
c. Breach and injury were too remote
d. Carelessness did no more than furnish the condition that made injury possible
e. acts were complete or had run their course
4. Tortious Aspect Test-looks like actual but really proximate cause issue
a. Was what do that was careless a but for cause of injury
i. may not give proximate cause because carelessness didnt cause injury
1. car backing, hits boy under car, would not have stopped accident if checked mirror =
carelessness would not have prevented injury
5. Palsgraff (Cardoszo)
a. In order for liability to attach, the defendants conduct must be negligent with respect to the plaintiff or
class of persons in which he or she is included.
b. A reasonable person must be able to foresee that the carelessness could possibly harm the plaintiff
i. This goes to foreseeability at the time of breach, not causation.
c. Proof of negligence in the air, so to speak, will not do.
6. Palsgraff (Andrews)
a. Everyone Owes Duty
b. Foreseeability happens at the moment of breach and not at the moment of the box exploding.
c. Public policy, economic factors are more important
7. Danger Invites Rescue Doctrine
a. A defendant places the life of another in danger is also liable to his rescuer for injuries that occurred
during the rescue attempt. (Wagner-boy falls out train, cousin falls looking for him)
Intervening Causes
Intervening causes are not Superseding Cause if should have foreseen and avoided the general type of harm that
resulted, even if was not foreseeable.
Intervening cause is foreseeable if it represents a general type of foreseeable intervention even though it
could not have been anticipated.

Concurrent Causes
Two separate acts that -> injury (multiple necessary [McDonald Supra] and /or multiple sufficient)
SUPERSEEDING CAUSE-narrowing of causes
1. Test is Objective Foreseeability
2. Usually criminal act that breaks up causation links
a. (Fast eddies-drinking at bar leads to rape/murder of girl left in car=superseding cause for bar to not
have foreseeability)
3. Act of Terrorism
a. (Port of Authority- 93 osama Bombing-fertalizer folk not foreseeable to bombs from their product,
terrorism=superseding cause)
4. Act of God- also unforeseeable acts of nature-no love for tornado Kansas
5. Social Host liability
a. Only towards minors do u have duty
6. If Affirmative Duty-> no superseding cause
a. Architect in SF that doesnt design earthquake proof

Negligence-Injury+Duty+Breach+Causation

Defenses
Affirmative Defense
Failure to assert Defense=waver to it.
Contributory negligence-> Comparative Fault
Modified Comparative negligence
If fault more than 50%, then no negligence, if less then pays the % at fault in damages
(Hunt-Snowblower accident)
Pure Comparative negligence
Damages are split how fault split. 90% 10% , recovers 10% from
Failure to Mitigate Damages
not responsible for damages that occur from not taking care of original injury caused by
Joint and Severally Liability
Two at fault defendants, indivisible injury= J+S liability, holds liable for damages, so they can work
out amongst selves who pays what, not the
Doctrine of last clear chance
Hot potato of comparative fault
Assumption of the Risk- understands risks and continues anyway.
Total defense-bars recovery
ExpressedUsually signed waver(exculpatory agreement), no right to sue for negligence (Jones-skydiving)
Can be removed due to Tunkl Factors
Business is of a type generally thought suitable for public regulation
Provides a great service to the public (can be a practical necessity)
Willing to perform this service for any member of the public within certain standards
Decisive Advantage in bargaining strength
Adhesion contract-take it or leave it circumstance
Presents members of the public with a standardized adhesion contract of exculpation
Purchaser is placed under the control of the seller, subject to the sellers carelessness.
Implied
Primary
No right to sue by freely deciding to engage in risky, unorganized activity (park football)
Secondary
No right to sue by freely deciding to engage in risky organized activity (Smollett-roller ring)
Weird Caveat w/ Smollett
if reasonable action then assumed risk=no recovery
If unreasonable action then compairative fault=some recovery
Statute of Limitations
Wont be going over this but its a thing- battery+assault 1 year. Negligence ~2-3 years
Immunities
Wont be going over this but remember government immunity to battery, not negligence

Negligence-Injury+Duty+Breach+Causation

DAMAGES
1. Compensatory Damages-to make whole again
a. The Plaintiff is entitled to fair or reasonable compensation from the defendant, in light of the losses
she suffered as a result of the tort.
b. This concept encompasses the eggshell skull rule. (Smith v. Leech brain-molten metal accident)
i. IF SEPARATE INJURY THEN no Damages, IF SAME INJURY THEN DAMAGES
c. Juries in general determine compensatory damages.
d. NO WORKERS COMP-Settled in other way
e. Factors considered
i. Nature and extent of injuries
1. Lost hand, lost use of hand temporarily
ii. Diminished earning capacity
1. Lost wages, lost ability to work job etc
iii. Economic Conditions
iv. Plaintiffs Age
1. How long will insurance cover this etc.
v. Comparable awards
f. Collateral source rule
i. Cannot talk about how insurance plays into it.
g. Caps on Damages- California Prop 46 failed so non economic damages<250K
2. Punitive Damages- to punish for tortious action
a. conduct involved willful misconduct, malice, or reckless disregard for the rights of others.
b. Go to a small number of people
c. Wanton disregard:
i. Actor has knowledge of facts that would make the danger obvious to anyone in the actor's
situation
ii. An actor who is unaware of the risks posed by his conduct only if:
iii. Facts are so obvious that one can infer the actor is lying
iv. Obviousness of facts suggest that the act has consciously refused to consider the risk
v. Denial of actual knowledge while sincere, is disturbing.
d. Deliberate indifference
i. Conduct creates an unreasonable risk of physical harm to others
ii. Person is aware of the unreasonable risk and that the risk is substantially greater than that
which would make his conduct careless.
iii. (Mathias- Bug bite motel- Willful and wanton disreguard for hotel guests by knowing of issue
and deliberatlly choosing to ignore it= punitive damages)
e. Factors considered calculating value
i. Degree of reprehensibility
ii. Wealth of DEF
iii. Ratio to compensatory damages
iv. Amount needed for deterrence
3. Direct Liability (for employment cases)
a. Negligent Hiring
b. Negligent Supervision
c. Failure to Implement Proper Policies
d. Failure to Enforce Policies

Negligence-Injury+Duty+Breach+Causation
4. Vicarious Liability(Respondeat Superior[RS])
a. Within scope of employment (tabor v Maine- guam army food-run =RS
i. Benefit test
1. Action stems from act that conceivably benefits employer
a. Alcohol -> comradery
ii. Characteristic activities test
1. Was consisting happening- similar events happen (or 1off)
2. Things outside have nothing to do with action
b. Detour v Frolic
i. Detour = RS
1. Stop on way
ii. Frolic RS
1. Going well outside scope of work
c. Independent ContractorsRS
i. the extent that the agent and principal have agreed that the principal may exercise over the
details of the work
1. Free worker -> IC
ii. whether the agent is engaged in a distinct occupation or business
iii. is it done under the principal supervision.
1. If yes goes more towards RS
iv. Skill required in agents occupation.
1. Y then goes to IC
v. who supplies the tools
1. Principal->RS, Agent->IC
vi. the length of time during which the agent is engaged by a principal.
vii. whether the agent is paid by the job or by the time worked;
1. Hourly(RS) v by Job(IC)
viii. whether the agents work is part of the principals regular business
ix. whether the two believe they are creating an employment relationship, and
x. extent of control the principal exercised in practice over the details of the agents work
5. Wrongful Death-covered more in IIED, NIED
a. Survivor acts
i. Allows survivors to bring suit in place of dead relative
b. Wrongful Death Act
i. Allows survivors to sue for damages up until death
1. Stem from harm done to other person derivative of claim of dead person
2. Also includes bereavement and loss of wages
a. If not dependent- then can only recover for bereavement

Negligence-Injury+Duty+Breach+Causation

IED
1) Intentional Infliction of Emotional Distress - the Tort of Outrage- rarely happens
a) Intentional recklessness may suffice
i) Intent is not based on harm, but act.
ii) Other factors
(1) Substantial certainty, Purpose and desire to cause harm, Recklessness
b) Extreme and outrageous nature of conduct
i) Outrageous conduct = conduct that exceeds all bounds of decency tolerated in a civilized society
ii) Indicators of outrageous conduct
(1) 1). Repetitive/ongoing. 2). Power relationship abuse. 3). Aware of fragile emotional state and DEF
exploits that. 4). Happens in public greater distress because of humiliation (Nickerson-Pot O Gold).
5). Reporting death of loved one
c) Cause
d) Severe emotional distress
i) There is no specific showing that must be made
(1) Dont have to prove illness or that you visited a doctor/shrink
(2) Showings just help case
NOTES-- b and d are most important---Transferred intent doesnt apply
2) Negligent Infliction of Emotional Distress
1. General default rule: No duty to avoid causing harm to another persons emotional well being
a. Caveat- conduct that is careless as to anothers physical well-being but also causes emotional
distress(Negligence)
i. Exception #1- Special Relationships
1. require the to be vigilant with s emotional well being
2. Creates duty- applies mostly to professionals
ii. Exception #2- Zone of danger
1. s carelessness subjects to a risk of imminent bodily harm of which is aware.(Robbtrain soot on face-creates zone of danger)
2. Zone of danger- is an objective test. Your fear has to be reasonable
a. Within immediate area of physical danger created by s carelessness;
b. reasonably perceives that s/he is in danger
i. Requires the endangerment of must have caused reasonable fear
c. The endangerment causes emotional distress; and
d. Physical manifestation of stress occurs.
i. Physical manifestation of the stress --evidence of injury for court
iii. Exception #3-s Bystander Rule
1. Carelessly causes a traumatic physical injury to a victim, in s presence (Waube-no
recovery for dad, too remote. Dillon-recovery for mom-natural justice)
2. TEST based on Foreseeability
a. When outside the Zone of Danger: to recover for NIED must:
i. Be a close relative
1. Define this relationship-can be argued to be broad
ii. Be at scene of accident, aware that victim being injured
1. Room for hearing, but must be argued
iii. Have suffered emotional distress more severe than the sort of distress a
disinterested witness of the same accident might experience.
*these are rules for assessing whether or not there was foreseeability, duty/ Breach to prove NIED.
Once Duty/Breach is covered, then must show actual and proximate cause.

Negligence-Injury+Duty+Breach+Causation

Strict Liability
Conduct that interferes in the persons interest in the possession use or enjoyment ofland or personal
possessions-CONVERSION CLAIM
Ultra hazardous activities
Explosives
Products Liability

Products liability CA is the majority rule

1. Strict liability- D is liable without proof of wrongdoing or carelessness even if reasonable
2. Combination of Strict Liability and negligence. Some level of fault.
3. Liability without faulta. -conduct that interferes with a persons interest in the possession,use, or enjoyment of land or personal
possessions,
b. -ultrahazardous activities- keeping of wild animals and blasting.
c. **-manufacture and design or sale of defective products.
4. Prima Facie case:
a. P is injured
i. Always physical, but sometimes economic loss and damage to property caused by defect
b. A sold a product
i. Not products: services, property, homes (unless prefabricated houses (trailers))body parts(some
jxn say medicine and vaccines), live animals(unless diseased/used as product), text materials
(except maps and charts or books used as tools Artigilio pilot who used a defective map was
a product) intangibles like x-rays, electricity, used productsc. A is a commercial seller of such products
i. Something that is put out on the market=liability for defect(no need to be buyer)
ii. Key detail is commercial
1. Manufacturers, retailers, Distributors, NOT USED PRODUCT SELLER
a. Same as Joint and Several liability due to indemnification clause.
iii. Component part manufacture:
1. if defective when it made -> liable
2. if the manufacturer used component improperly-> Component maker liable.
3. If adequate awareness/involvement of design/manufacture of overall product -> maybe
liable.
d. At the time it was sold by A, the product was in a defective condition
i. Manufacturing defect (Gower-if the product lacked a component part then there is a question
of fact for the jury as to whether it existed at the time of sale.)
1. Diverges from manufactures own specifications for product
a. Lemon Product
2. If defect remains when product emerges into market->liable (not just distributor)
ii. Design Defect (Greenman- wood machine w/bad screws &better ways to fasten machine)
1. Flaw is in actual design of product

Negligence-Injury+Duty+Breach+Causation
a. Difficult to show
b. Use consumer expectation, feasibility, affordability, safety of alt. design.
i. Like Hand formula
2. Designed to function in way-> doesnt function in that way
iii. Failure to Warn/Instruct
1. Lack of label or warning on product, OR
2. Defect in condition of language of warning or instructions
a. Mislabeled product, incorrect dosage
e. The defect functioned as an actual and proximate cause of Ps injury
i. Looks a lot like negligence, BUT ALSO
1. Market share liability
2. Toxic Torts
f. 2nd restatement Prima Facie
i. that the product was defective
ii. that the defect existed at the time the product left the manufacturers hand
iii. that the defect caused the s injury.
g.
Issues of causation look a lot like negligence claims for actual and proximate cause.
However, some new concepts:
-market share liability.
-toxic torts
can be loss of consortium from a defective product and you can get survival claims and wrongful death
claims.
When you file a PL claim, you also want to make negligence (and misrepresentation, and breach of implied
warranty etc.) claims even though it may be redundant, b/c negligence claims will foster jury sympathy.
However, if a recovers for PL he cannot recover again for the same injuries caused by the same product in
negligence especially if the conduct was intentional are careless or reckless.