TORTS DURHAM FALL 2015

Introduction to Tort Liability

Elements of tort claim

o Duty to take precautions
o [Standard of Care] Legal question: What sort of care applies? What
sort of duty is owed?
o Breach of standard of care or duty. D did something he shouldnt
have done.
o Cause in fact Breach of duty went to the injury. Wouldnt have
happened w/o breach
o Proximate cause Sometimes breach occurred, but other times it
follows unexpected course of events.
o Injury Some kind of injury for which V can be compensated
o [Defenses] Not required, but if D presents good defense, BOP shifts
to P.
Types of liability
o Absolute Liability w/o limits. Rare. Cts generally wont apply.
o Strict liability Regardless of Ds care. Applied only in certain
situations.
o Negligence General standards D must owe duty to P.
Hammontree v. Jenner: Negligence is correct standard to be
applied when driver crashes due to seizure (no history of
seizures for 12+ years on meds), not SL. People only pay for
damages caused by their negligence
VICARIOUS LIABILITY

Holds a blameless party responsible for actions of another. First party must be
liable first. Can be negligent or intentional.
o Reasons:
Ensure victims are compensated for injuries.
Gives employers incentive to exercise control over employees.
Tends to spread cost of injuries.
Helps internalize costs associated w/ particular business.

-Respondeat Superior

Employer is vicariously liable for torts committed by employees working

within scope of their employment. Usually question of fact.
o One may have grounds to argue direct liability if employer was
negligent as well and have facts to prove it.
Requirements Christensen
1. Conduct is kind employee is generally employed to do. (Not wholly
involved in personal matter)
2. Conduct must occur substantially within hours and ordinary spatial
boundaries of employment.

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 3. Conduct must be motivated at least in part by serving employers interest.
Limitations
1. Employers may not be liable if conduct was outrageous and unforeseeable
2. Employers may be liable for not taking precautions in the hiring process.
a. Hiring bouncer w/ previous assault charges.
b. Must look to see if employer was responsible in any way: negligence
in hiring, supervision, discipline.
o Look for employer negligence. Gives another theory to argue multiple
causes of action, direct liability, and vicarious liability.
Christiensen v. Swenson: Security guard leaving for lunch hits motorcyclist on
way back. Ct says its a matter for jury to decide whether she was acting w/in
scope of her employment.
o 3: employee taking break benefits employer b/c more productive
employee. Also could have been motivated by getting back to post
quickly.
Agency

Principal is held liable for acts of its agents if w/in scope of agency.

Apparent authority: Species of estoppel. Ds conduct causes P to have reasonable

belief about something, and as result P relied on that belief to his detriment. THREE
REQUIREMENTS

1. Representation made by the purported principal.

2. Reliance on that representation by 3rd party; and
3. Change in position by the 3rd in reliance upon the representation. (Left P
worse off)
Does not from subjective understanding of the 3 rd or from agent. Exists
ONLY when the principal creates the appearance of an agency relationship.
(question of fact)
Estoppel: D causes P to have reasonable believe relied upon to Ps
detriment.
Roessler v. Novak: P van recover after hospital made it appear that
radiologist was employed by them although he was only an independent
contractor; radiologist misread scan & P hospitalized for 2.5 months.
Nondelegable duty Suggests that hospitals should be vicariously liable as
a general rule for activities within hospital where patient cannot and does not
realistically have the ability to shop around for different providers. (Watch for
inability to choose providers of service)

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 DUTY

Decided by ct as matter of law, whereas breach & defense decided by jury.

DUTY Towards Potential Victims

Misfeasance: negligence by doing something wrong.

Nonfeasance: negligence by failing to act (doing nothing)
Affirmative duty to act: only arises when special relationship between
parties.
o Exceptions: Duty to aid IF
o General Special relationships
Other party is deprived of normal opportunities of self
protection.
o Guardian to a child.
o Reliance on a promise
o You are physically responsible for accident (w/ or w/o
negligence)
Only liable for additional injury suffered as a result of failure to
aid.
o Begin to render aid, creates duty voluntarily.
Farwell v. Keaton: D gives ive, tries to wake him but then left
him in car overnight (worse off because he was isolated.)
Some cts say must continue to reasonably render aid under
circumstances.
Other cts say only duty not to leave worse off.
o Business taking on responsibility for financial gain w/ heightened
SOC
Common carriers, innkeepers.
Superior knowledge of a dangerous condition, absent a duty to protect, is
insufficient.
o An actor realizing or should realize that action on his part is necessary
for anothers protection does not itself impose on him a duty unless
special relationship requires him to protect the other.
Harper v. Herman: D didnt have special relationship w/P gues on
boat, didnt have to warn him of shallow water.
Not common carrier b/c no $ paid; also P not deprived of self-
protection (duty if under 7)
When causing injury, even if not tortious, trend is to impose duty to render
aid, especially if person rendered helpless.
ORBIT OF DUTY

Ct can limit Ds duty to those who are foreseeably effected (broad public
policy decision)
o Power & utility companies often handled duty due to broad public
policy consideration.
Duty is limited to those under contract w/ D.

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 Strauss v. Belle Realty Co: Power co not liable for injury to P
while in the common area of apt building b/c not under contract
directly (public policy decision to avoid crushing liability)
Ct here giving Con Edison special protection because
what is bad for them is bad for NY.

DUTY TO CONTROL OTHERS FOR 3RD PARTY INJURY

Where avoidance of foreseeable harm requires D to control another, or warn of such

conduct, CL traditionally imposed liability only if D had some special relation to
the dangerous person or potential victim.

Departing from ordinary negligence rule requires balancing a number of

considerations
o *Foreseeability of harm to plaintiff. Most important.
o Degree of certainty that plaintiff will suffer injury.
o Closeness of connection between defendant conduct and injury.
o Moral blame attached to defendant conduct.
o Policy of preventing future harm.
o Extent of burden to defendant
o Consequences to community of imposing duty to exercise care with
resulting liability for breath, and the availability, cost, and prevalence
of insurance for risk involved.
Here, D would be negligent in failing to prevent an injury to a 3rd party
caused by his ward.
o Patient, parent, employer.
Must have special relationship
o D has assumed responsibility of someone who is potentially dangerous
(taking charge of dangerous patient)
o D has assumed the care of someone else (ex: responsible for
protection of victim)
A duty may arise from Ds relationship with either the dangerous 3rd (giving
him duty to control) or with the victim (giving him duty to protect/warn)
o Tarasoof v. Regents of U California: Therapist had special relationship
with his patient and therefore had a duty to warn P of the parients
threat.
If therapist determines or reasonably should have determined
possibility of serious danger, he has a duty to use reasonable
care to prevent patient form causing the injury.
Sometimes a confidential relationship needs to be compromised
to prevent injury.
Notes case Bellah: No duty to warn when risk is self-inflicted
harm or property damage.
*Most important element is foreseeability: D owes duty of care to all
persons foreseeably endangered by his conduct w/ respect to all risks that
make the conduct unreasonably dangerous.

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Negligent Entrustment: Supplying meant to do harm to some other individual
when you knew or shuld have known doing so created an unreasonable risk of
physical harm, and it did lead to injury.

Harm must be of the type that makes the entrustment unreasonable in

the first place.
o Give gun to toddler who subsequently drops it on someones foot not
negligent entrustment action.
Supply can be direct or indirect.
o Selling, leasing, donating, giving.
o Giving money to someone so they can buy a thing (seems to be outer
limit of liability)
Requires knew or should have known what makes entrusting the particular
item unreasonable.
o Vince v. Wilson: Grandmother liable in NE when grandson wrecks car
she gave him money for knowing he had no license and failed his test,
and that he abused drugs & hooch. Salesmen may also have been
liable because they knew some of this too.
No liability for social hosts to control intoxicated 3rds, but there is liability
for commercial vendors (more able to monitor guests alcohol use)
o Reynolds V. Hicks: D not liable to 3rd for accident caused by nephew
after leaving Ds house party intoxicated and getting in car accident.
Ct says there may be duty to intoxicated minors who injure
selves, but not others.
Statute ambiguous b/c didnt apply to parents giving alcohol to
minors.
o No cause of action for intoxicated person for their own injuries. Parent
can bring actions for costs associated with minors injuries.
o IN AL: Civil liability for supplying alcohol to minors and drunk people
DRAMSHOP
Jurisdictional split: Whether NE requires entrustor retain ownership.

Landowner Duties

-Modern/Majority approach

Does not recognize distinction in visitor type, but to reasonable standard of

care to all visitors.
Exception: Trespassers may still not be owed duty of care in some cases,
can go to jury.
Factors in whether landowner exercised reasonable care for protection of
lawful visitors.:
1. Foreseeability of possible harm.
2. Purpose for which the entrant entered the premises.
3. Time, manner, and circumstances under which entrant entered premises
4. The use to which premises are put or expected to be put
5. Reasonableness of inspection, repair, or warning
6. Opportunity and ease of repair or correction or giving of the warning.

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 7. Burden on landowner and/or community in terms of inconvenience or cost
to provide adequate protection
8. FOR FACTFINDER TO DETERMINE ON FACTS OF CASE whether such
factors established breach of duty of reasonable care
Businesses CRIMINAL HARM
o Do not have to insure patrons safety, but to have a duty to implement
reasonable measures to protect patrons from criminal acts when those
acts are reasonably foreseeable.
o 4 approaches to determine foreseeability of harm:
Specific harm rule: No duty to protect against 3rds violent act
unless he is aware of a specific, imminent harm. (Courts agree
this is too restrictive)
Prior similar incidences test: Foreseeability established by
evidence of previous similar crimes on/near the premises.
Totality of the circumstances test: (most common) takes into
account nature, condition, location of land & other relevant
considerations of foreseeability
Greater duty on business owners to foresee risk (criticism:
broad)
Balancing test: Foreseeability of harm vs. burden of imposing a
duty to protect against criminal acts of 3rds ($). Problem: May
remove duty question from jury while trying to protect
businesses. (CA, TN, LA)
Factors: existence, frequency, & similarity of prior
incidents considers location, nature & condition of
property. Property boundaries crucial.
Posecai v. Wal-Mart: Ct adopts balancing test in
determining D was not liable for Ps getting mugged in
parking lot b/c of low foreseeability of occurrence & high
cost to prevent it.
-Traditional/Substantial minority (AL)

Determines liability based on status of visitor. (Visitor on land only, not

passengers)
Why? Businesses earn revenue from you, should have higher duty to protect
you, more resources (applies to invitees)
Trespassers: All entrants to lang are trespassers until possessor of lang
gives them permission to enter. Any who enter land w/o implied or express
permission.
o Dont have to know hes trespassing.
o No duty to repair dangerous conditions/warn; only standard of care is
not willfully harming.
Some jurisdictions say duty if someone accidentally ends up
on land (park closes without their knowledge)
o 2 EXCEPTIONS:
Known/frequent trespasser rule:

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 Lanowner knows or should know trespassers frequently
enter his land (or has evidence there may be one there
then) he must warn of any conditions that are:
o Dangerous, non-evident, and artificial
o If natural danger, such as hard to see cliff, or
evident, no duty.
o Must be reasonable not to put known trespassers
at risk.
Child Trespasser Rule:(Dont say attractive nuisance)
Landowner liable if:
Child harmed by artificial condition.
Landowner knows or has reason to know child is likely to
trespass
Condition poses unreasonabl risk of death/serious injury
Danger is such that children arent expected to appreciate
it themselves
Utility of maintaining dangerous condition is slight in
comparison to risk
Landowner failed to exercise reasonable care to eliminate
the risk.
Overlap to two, but with children, liability cant be avoided
w/ mere warning
Licensee: Peron on land w/ permission but not for the material benefit of
owner. Social guests. Person entering business for personal reason. Less
than invitees. Licensees take land as it is.
o Duty to warn of known dangers that are not obvious.
o No duty to inspect (discover unknown dangers) or repair non-obvious
dangers.
Ct decides these as matter of law. Factfinder: licensee or invitee.
o As with invitees, must conduct activities reasonably to avoid injuries to
licensees.
o Includes social guests and friends who come to help landowner
do something unless that friend gives material help above what
would be expected.
o Carter v. Kinney: P comes for bible study and slips on ice. D not liable
b/c not three for Ds material benefit. D not aware of presence of ice
and no duty to inspect for it.
o Heins v. Webster County: P hurt by slipping at hospital door while
visiting daughter. Ct says hospital should be liable as they would be
had he purchased something or was a patient. Warranted eliminating
invitee/licensee distinction
Invitee:
o Someone on land w/ permission & for potential material benefit of
landowner/occupier
Usually this means business reasons.
o Someone on land if land typically open to general public (even if
for free) ie; museum.

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 Must be there for purpose land held open, using restroom may
be enough in convenience store, but not enough in car
dealership.
o Duty to reasonably inspect premises and to warn of or repair dangers
that are not readily apparent. Highest duty here.
Open & obvious danger exception:
In some jurisdictions, not required to correct or warn of
dangers so obvious that warning would be pointless.
Others say duty if it is dangerous despite obviousness
(must be removed in those cases)
DUTY TO AVOID CAUSING EMOTIONAL HARM

Traditional rule: One cannot recover for emotional harm w/o physical
impact.
o Nearly all states abandon physical impact requirement to recover for
emotional damage
General rule: Where negligence causes fright from a reasonable fear of
immediate personal injury that results in substantial bodily injury or illness,
actual physical impact not requires (ZONE OF DANGER)
o Falzone v. Bush: Ct goes against traditional rule saying P should be
given opportunity of proving D negligence caused substantial bodily
injury/sickness through emotional distress; P recovered after seeing
husband get hit and almost being hit herself. Made her sick from fright,
requiring medical attention (reasonable person would have expected
impact)
Zone of Danger Test (Near miss)
o Most jurisdictions (incl AL) use Zone of Danger test to determine
whether to allow recovery for emotional injuries.
o Recovery if there was:
1) Physical impact: P sustained physical impact as result of Ds
negligence, or
2) Near Miss P was in immediate risk of physical harm by that
conduct.
o Exposure to something that may cause harm in future doesnt count.
ZOD applies only to immediate physical harm or near miss, not
future sickness.
o Cts require objective evidence of injury: physical symptom of disress,
psychological problems, etc
Where fright doesnt cause substantial injury or sickness, it is to
be regarded as too lacking in seriousness and too speculative to
warrant imposition of liability.
o Expanse of litigation should not get in the way of allowing meritorious
claims.
Old oddball rules: Typically allowed to recover for negligent handling of
corpses and false death notice.

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-Bystander Liability: Recovery for emotional distress when P present and
witnessed serious injury of close family member caused by Ds negligence, and
suffered distress b/c of it. Split in jurisdictions on whether it exists or to
apply ZOD. Most jurisdiction treat liability as derivative.

Survival statutes: allow estate to recover for anything victim could have
recovered if still alive. (Doesnt apply to familys emotional distress.
Based on five factors:
1. Close relationship (most important)
a. Blood relative or married. boyfriend less likely
2. Proximity
a. Cant be over phone etc, or seeing after happened. May be relevant
in demonstrating closeness of emotional bond.
3. Actually witnessed horrors
a. Only someone actually seeing injury can be damaged enough to
recover.
4. Serious injury
5. Severe emotional distress
Porter v. Jaffe: Mother recovered after watching son stuck and killed in
elevator door. Suffered depression, suicidal tendencies, need for extensive
counseling b/c of it.
o Risk of emotional injury exists by virtue of Ps perception of accident,
not his proximity to it.
Johnson v. Jamaica Hospital: Parents cant recover after daughter was
kidnapped from hospital b/c hospitals duty was to child, not parents, no
matter how foreseeable the emotional distress.
o No injury to child = no recovery for parents. Parents couldnt have
witnessed injury.
o Policy stance b/c may have allowed recovery when elderly ppl wander
away form hospital.
-Loss of Consortium: most states allow spouse to recover for loss of
companionship of spouse.(AL ok)

Does not extend beyond marriage (usually).

o Some states allow for parents losing children
o Fewer still for children losing parents.
Usually applied where other is injured but still alive. Can be applied in death,
too, as wrongful death is more about financial gain than emotional.
Derivative cause of action: may be affected by injured partys
responsibility.

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DUTY TO AVOID CAUSING ECONOMIC HARM

Traditional Rule: No financial recovery or duty for purely economic harm

where there is no physical injury or impact.
o Analysis similar to emotional harm. If biz is in some way physically
damaged and has to close, it can recover for both. No phys damage,
no recovery for econ damages.
o Ds Duty is limited to those who have suffered personal injury or
property damage.
o 532 Madison Ave Gourmet Foods v. Finlandia center: No recovery for
store that lost business due to closing of road b/c no physical damage
to store. Duty to protect persons in adjoining premises doesnt apply to
whole neighborhoods purely economic loss.
Need to draw the line somewhere to prevent limitless liability.
o Absent a duty, no liability for damages, regardless of how careless
conduct was or how foreseeable the econ harm. (foreseeability of harm
doesnt define duty)
o Look for physical impact as a result of negligence to recover.
Exception: classic case of Landser v. Shepard, where bean seller pais
weigher to overweigh beans. Weigher liable because he knew all along buyer
was interested party in his negligent weighing.
o This is usally applied today to auditors, accounting firms, etc.
o Very limited group of very foreseeable victims for whom
representations was made for their benefit. Such as investors, even
though they didnt hire accountant, accountant knew his work was for
their benefit, and thus he can be liable.

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 STANDARD OF CARE

Standard ct uses in deciding whether Ds behavior was negligent. Concept of

unreasonable risk.

1. Evidence of negligence: jury may consider this in determingin liability

(custom)
2. Prima Facie Negligence: Negligence unless D can prove otherwise (violation
of statute)
3. Negligence per se: Act itself if negligent, regardless of arguments otherwise
4. Excuses: Party may defeat negligence claim by stating unavoidable reason
or not complying w/ law. Ignorance is no excuse.
Negligence & the Reasonable Person

Reasonable person test: What would average man, ordinary in intelligence

and prudence under circumstances do?
o Flexible standard. Takes into account context of situation (ie;
emergency)
o Factors considered:
Physical disabilities (incl vision)
Superior abilities (Professional responsibility standard)
Exceptions for sudden onset of mental condition.
o Factors usually NOT considered:
Mental disability (easy to fake, point of contention)
Limited intelligence, bad judgment, or experience.
Intoxication
Specific professional experience (not really held to higher
standard)
Special applications:
o Emergency doctrine: Given lack of decision making time, must only
use honest exercise of judgment.
o Children: Standard is that of a reasonable person of the childs age,
intelligence, and experience.
Parents can be held liable for negligent supervision w/ history
of bad behavior or negligent entrustment, but not automatically
vicariously liable.
Exception: If there is some proof of wrong or negligence
on parents part, or in jurisdiction with willful mischief
doctrine.
Rule of Sevens (some states incl AL)
Under 7: irrefutably presumed incapable of negligence.
7-14: rebuttable presumption that they are incapable of
negligence.
o must rebut based on intelligence and experience of
child of like age.
Over 14: rebuttable presumption child is capable of
negligence.

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 Children can be held liable as adults when partaking in adult
activity (driving a car, using a chainsaw)i
o Common carriers: Traditionally held to standard of utmost care
Ensure safety of passengers so far as human skill and foresight
can go.
New rules hold carries to same reasonable person standard
majority is still utmost standard.
Bethel v. NY Transit Authority: D guilty for defective seat under
old rule, but under new rule jury must weigh whether D failed to
take reasonable precautions.
Constructive notice: Either you know and ignored it, or you
should have known and didnt. Commonly applied following
inspection.
THE ROLES OF JUDGE & JURY

Cts arent likely to lay down uniform standards of negligence, most cases go
to jury based on issues of fact. Without issues of fact, SJ is granted.
When dealing with a clear standard of conduct ct can lay down rule of law
w/o jury.
o B&O RR v. Goodman: Ct lays down standard that P should have
stopped and gotten out to look for train when view was obstructed.
RR was negligent in having section house block view, but P was
partially negligent & barred by contributory negligence.
In situations where there is no fair test to determine standard of
conduct, decision should go to jury.
o Pakora v. Wabash RR co: Limited/reversed B&O. Jury should decide if
Ps measures were adequate in determining whether train was coming.
Judges should use caution in framing standards, especially when they
are artificially developed rather than customary.
When jurors have means & experience to determine if actors
conduct is reasonable, they should be allowed to do so.
o Cts dont lay down standards of conduct, but may say there is no
genuine issue of fact, or that Ps case is so compelling that jury isnt
needed.
o Andrews v. United Airlines: Jury should determine whether airline took
adequate precautions by warning that baggage may fall out of
overhead compartment (SJ for D was inappropriate)
The ROLE OF CUSTOM

Shows that community thinks something is a reasonable thing to do, shows

that a D could have done something additional, D could have known about
alternative.
o Relevance will depend on facts of particular case.
Factors in deciding what is/isnt reasonable, but not conclusive. What is
customary/reasonable for one not necessarily for the other.

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 o Trimarco v. Klein: allowed jury to decide that evidence supported
custom of using safety glass in showers instead of thin glass: evidence
showed that D fell below that standard of care.
Must consider cost, etc. Define custom by industry or price
level?
Evidence of custom followed by others in same biz can help determine
reasonableness of Ds conduct under circumstances, but doesnt establish
standard.
o Custom helps D if he follows them, help P if D doesnt follow it.
Use custom if evidence is available, but with some caution.

Custom evidence alerts ct to 3 pain points

o If industry adheres to one way of doing something, ct may be wary of
Ps assertion that there are safer ways of doing it, and may insist P
demonstrate feasibility of that alternative.
o Even if P can show alt, the fact that its not in use can suggest its not
unreasonable not to know about it.
o Custom involgin large fixed costs may warn ct of social impact of a
jury/ct decision that determines the custom to be unreasonable.
Beware of industry standards, as they are set by industry, and promote
industry interests.
o May be admitted as evidence, but shouldnt be conclusive.
Experts: If only experts available inevitably represent same side, allowing is
improper as industry can effectively set own standards.
THE ROLE OF STATUTES

Statutory pre-emption: D can try to prove that he used reasonable care by

showing he complied with a relevant statute.
Violating a statute: Only relevant as standard of negligence when
injury suffered is type statute is designed to protect against (must have
causal link)
Violation may be relevant in three ways, if at all (by jurisdiction).
o Some evidence of negligence, but up to jury to weigh.
o Prima facie evidence: treat statutory violation as prima facie
negligence case, putting burden on D to rebut, perhaps by saying
following wouldnt have made difference.
o Negligence per se: Inexcusable violation of statute designed to
protect against that very result, constitutes negligence per se w/ no
opportunity to rebut (eg; speeding)
Violation of a statute designed specifically to protect human life is
negligence per se.
o Martin v. Herzog: Not having lights on buggy (statute) is not evidence
of negligence, but negligence itself.
Reason was to avoid being hit at night, which happened.
Unexcused omission, no opportunity to rebut.

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 Exception: failing to follow statute can be excused under special
circumstances when it can be shown following statute would have put one
in a worse situation.
o Legislature wouldnt intend for observance of statute to put person it is
meant to protect in more danger (violation may be prima facie, but D
can show why it wasnt.)
o Tedla v. Ellman: Walking on wrong side of the road by statute
excusable because following it would have been more dangerus due to
heavier traffic on other side.
Consider:
o What is statute meant to do/prevent?
Was it intended to be the final word on safety?
o Did violation of the statute cause the accident?
o Was the violation excused somehow; inability to comply?
o Jurisdictions approach to handling? (3 ways above)

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STRICT LIABILITY

Holding Ds blameworthy even though they have done everything they

reasonably could have.
o Go through negligence first, then use Ryland approach
o Less forseeable types of harm (cow escaping and goring someone as
opposed to trampling a field) less likely to be held strictly liable for.
Landowners:
o I: If you bring onto your land something dangerous or accumulate it
there, and it is not naturally there, and it escapes, a landowner will be
liable for the foreseeable type of harm, regardless of precautions.
EXCEPTIONS: acts of God, damage arising from natural use of
the land. Can also excuse self by showing that escape was owing
to the plaintiffs fault.
Rylands v. Fletcher: D is liable when water from his reservoir
goes through mining tunnels he didnt know about and damages
Ps land.
o II: Landowners are liable for acts of independent contractors on
their land.
o III: Strict liability is limited to the type of harm that normally ensues
from the activity. If its a different type of harm, then no liability.
(Blasting and fragments hitting a house is normal type of harm,
liable even if careful in blasting)
o IV: If undertaking something you would reap the benefits of, you must
pay for any damages from it.
-Trespass
o On property: if D makes something go on neighbors land and causes
damage, he is liable.
o On the person: if D makes some physical thing invade a persons pace
and injures them, he is liable.
Sullivan: Use of land is not an absolute right; it is qualified by
the right of others to use their property. The right to personal
safety trumps the right of a property owner to some particular
use of his land. (Chunk of blasted tree flies onto highway and
kills P)
Abnormally dangerous activities
o 2nd Restatement 520: Always strict liability for activities that are
inherently risky regardless of precaution taken. Factors in
determining whether if abnrmly dangerous:
a: Existence of high risk of harm to person, land, or property of
others;
b: Likelihood that resulting harm will be great (severe injury)
c: inability to eliminate the risk by exercise of reasonable care;
d: extent to which the activity is not a matter of common usage
e: Inappropriateness of the activity to the place it is being
carried on; and

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 f: extent to which the value to the community is outweighed by
riskiness.
Would still be limited to the type of harm normally ensuing form
activity.
Expects employers of independent contractors to bear burden of
abnormally dangerous activity.
o Some courts may eliminate E&F from 2nd rest factors.

o Restatement 3rd went back to two factors:

a. Must find that activity involves a forseeable and highly
significant risk of harm even when reasonable care is exercised.
b. Activity is not a matter of common usage.
o Indiana Harbor Belt RR:no SL for D in transporting 53rd most dangerous
chemical that leaked b/c not abnormally dangerous activity. This was a
matter of negligence.
Ultrahazardousness, by law, is a property of activities, not
substances.
Not likely to recover for nonphysical damages under SL
Arguments for SL
o Encourages people to find less dangerous ways of doing thigns.
o Spreads cost of doing business.
o Internalizes cost of dangerous activities. (what may be cheap
alternative may expose true costs when decision maker knows he will
be SL for it, he may choose the more expensive, but safer option)
Efficiency in transaction cost in not having to prove a building was blown up
carelessly.

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 BREACH OF DUTY

Determining negligence and reasonability. (Just because its something people do,
doesnt mean its reasonable. Speeding.)

Foreseeability: Injury must be within the range of prudent forethought.

o Adams v. Bullock: D not liable for boy hurt dangling wire over bridge
coming in contact w/ D uninsulated trolley wire. Would have had to
change to underground wires.
Hiring guard not feasible, barriers on bridge?
No history. Extraordinary casualty for injury, was not
foreseeable.
Learned Hand Formula B<PL: Variable to determine negligence.
o Burden of taking precautions (B) Probability of accident, and Loss,
gravity of resulting injury.
Good illustrative way to determine negligence. However difficult
to determine cost of precautions, litigation, society, etc.
Easier to calculate when there arent human injures. How do we
value life?
o If B<PL, D is negligent and must pay damages. (Cost of prevention is
less than the colts that would result from the foreseeable injury, it is
negligent not to take precautions. If B>PL, then D is doing best it can,
and burden stays with the victim.
o US v. Carroll Towing: Having bargee on board would have prevented
the accident b/c barge wouldnt have broken loose, and it was
foreseeable. (In this case B<PL)
Proof of Negligence

P has burden of proving D was negligent. If D argues P was also negligent,

burden flipped to D.
Evidence:
o Direct (eye witness saw someone crash through gate)
o Circumstantial (Facts from which you could infer something happened.
Splintered broken gate found minutes after they saw nothing wrong
with it. Splinters dont lie)
Most common
o Most convincing type of evidence is real or documentary
evidence. Ie; broken bottle, videotape, smoking gun document.
Evidence is viewed in the light most favorable to P, gives P every reasonable
inference that evidence presents. (Circumstantial can trump direct b/c ppl lie)
o Negri v. Stop&Shop: Circumstantial evidence of baby food on floor was
substantial to hold store liable (no contrary evidence); witness didnt
hear jars fall 15~20 minutes before accident (constructive notice)
D must have at least constructive notice of danger in order to be
liable for it. Or actual (being told)
o Constructive notice:

17 | P a g e
 Defect must be visible and apparent.
Must have been there a sufficient length of time for D to
discover/fix it; dont have to prove how it happened or actual
knowledge.
Gordon v. American Museum of Natural History: Papers from
hotdog vendor caused P to drop on stairs were not dirty or worn
no evidence they had been there sufficient enough time to
establish liability.
o Look for: evidence of the passage of time.
Busines practice Rule: Merchant using self service should bear burden of
showing what steps were taken to avoid the foreseeable risk of harm debris
will be on ground. (Marbles hypo; instead of arguing for constructive notice
on marble you slipped on, argue marbles in an open area children can get to
is a negligent business practice itself.)
Res Ipsa Loquitur: the thing speaks for itself.

P must prove something that happened wouldnt have happened without

some sort of negligence, and that is enough for a prima fascia case based
upon circumstances of injury. D bringing up a possible non-negligent cause
doesnt defeat. Jury to decide.
3 factors:
1. D must have exclusive control (or nexus of control through others) over
the instrument
2. Accident wouldnt normally occur without Ds negligence.
a. When it most likely arises out of neg, we can proceed to shift
burden.
b. More likely than not 51% that negligence caused accident.
Doesnt matter if P cant say exactly what happened.
3. D has better access to evidence (evidence not always needed, shifts
burden to D though)
McDougald v. Perry: Spare tire wouldnt come loose normally uner 18 wheeler
w/o negligence; D should have changed 20+yr old chain.
o Negative inference - Missing chain: If D has evidence and doesnt
come forward with it, can be inferred that evidence would be negative
to Ds case.
Byrne v. Boadle: Barrel of flower falling on Ps head is negligence under res
ipsa. D couldnt prove he wasnt negligent.

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 CAUSE IN FACT But For

Even if D breached a duty and P is harmed, D is not generally laible unless he

caused the injury to P in a but for manner. But for D negligence, would P
have suffered same injury?
Burden of proof: Ps burden.
o General rule: P must prove each element of his case by
preponderance of evidence.
Where several possible causes exist, and one of more of them D is not
liable for, P must prove with reasonable certainty that injury sustained was
wholly or in part by cause for which D was responsible
o Mere probability/possibility that D was cause is not enough.
o Not required to eliminate all other possible causes.
Stubbs v. City of Rochester: Drinking water system
contaminated with tyhhoid; P could not prove he got typhoid
from water or several other sources. However, P provided
evidence that made it practically certain he got it from water;
court held inferences are such that jury could determine D was
at fault.
Preponderance of evidence is default standard. However, courts may set
higher standard in some cases.
o Ie; if P had opportunity to show more evidence but failed to, ct may say
P needs to prove with reasonable certainty. (51%)
o Presumption will be made against a pary who could have brought more
evidence than they did.
Shifting burden to D:
o When evidence shows strong causal link between Ds negligent
behavior and the harm, burden will be shifted to D to prove he is
innocent.
o If D violates a statute or regulation and the kind of harm that results
is the kind the statute was intended to prevent, the burden is shifted to
D to proe his innocence.
o P must establish a causal link and show that Ds negligence was a
substantial factor in the injury.
P must show
Ds negligent act or omission was but-for cause of injury.
Negligence was causally linked to the harm
Ds negligent act or omission was proximate to resulting
injury.
o When strong causal ink exists, D must provide evidence to show
otherwise.
o Zuhowicz v. US: Dr prescribed P 2x max dose of Rx; P developed
disease but no way for P to prove Rx overdose caused it. B/c P FDA
regulations avoid overdoses to prevent injury and the fact that Ps
injury could have been caused by overdose, there is substantial
evidence that Ds negligence caused Ps condition; shifted burden to D
to prove overdose didnt cause condition.

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 Today, cts allow expert testimony if it is scientifically reliable
(legit credentials)
Conclusory testimony may be refuted, but sometimes if expert
is well qualified its merited.
Lost Chance Recovery: Dr misdiagnoses, reduces change of survival from 30% to
10%. Patient dies. P cannot prove by preponderance of evidence that negligence
caused death. Some courts allow proportional recovery for chance lost.
$1M reduced to $200k. 20% of total.
Usually applied only in medical malpractice.
In AL, must prove that P more likely than not would have died.

Multiple sufficient Causes

Substantial Factor test: Where each of two concurring evidence would
have been sufficient to bring harm, but cant determine which actually
caused. No but-for, but still cause in fact. We say each is a cause. use
term only in cases where logic cant get you , but reason must.
o Where there is a paradox between ordinary rules of causation. Ie: Man
sets fire that would burn house, which is then struck by lightning. Even
if man hadnt set fire, would have burned. Cts can use substantial
factor test to show that he was liable.
o Most likely to be applied when all contributing causes are
negligent.
o Natural causes: usually no liability when natural cause would have
done same damage.
Alternative liability doctrine: Where we arent sure at all which action
cause injury.
o Ds not speaking out to reveal culpable party will be held jointly and
severally liable.
o Ct cant tell what happened, so turns to Ds to exculpate themselves.
o Conditions needed
All Ds negligent in similar matter, all put P at risk for same
injury.
Circumstances dont allow P to identify which party actually
caused injury.
Number of Ds to whom burden is shifted is relatively small, so
high likelihood an individual caused the damage.
Split All wrongdoers available and present before court (some
jur, not all)
Not necessary that Ds acting in concert.
o Summers v. Tice: 2 fired shots, dont know which hit P, both are jointly
and severally liable unless one can prove his innocence. Even if one of
the parties is not responsible, because he took a negligent shot, he
destroyed evidence that the other was responsible.
Allows P to be made whole, and Ds may be in better position to
exculpate self.

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 Market Share Liability: Places Ds on hook for negligent action based on
market share. No exculpation.
o If all Ds sell a like and fungible product, and theres no way of knowing
whose product caused injury, ct can invoke market share liability; pay
damages according to mkt share.
o No uniformity among jurisdictions: Some allow exculpation, others
not. Outer bounds.
Hymowitz v. Eli Lilly: DES causes birth defect, many Ps, to way
to know which mfg produced the DES they ate, so all are held
severally liable for their share of the market. No exculpatin.
Dissent argues for exculpation and J&S liability.
o Limited to a product that causes injury rather than incident/activity.
o Applied where source of product is not practical to determine. Must
match practicality w/ desire to link to actual harm.
o Smith v. Eli Lili: Rejected mkr share as too great a deviation from
existing tort principles.
o Defining market: Originally natl. No uniformity there either. Later
cases have said should be as narrowly defined as evidence makes
possible.
o Purely several: Liable for only your slice of market. Ds no longer in
market not liable.
o Usually required that D show reasonable diligence in trying to find
exact source of harm before being allowed to apply market share.
Theory of last resort.
Joint & Several Liability
Traditionally, (minority) if more than one tortfeasor, each can be held liable
for full amount of damages to P. P can demand full payment from either. If
one doesnt pay, the other pays all.
o Right of contribution: Pro-rata. Based on share, can go after non-
paying parties.
o Everyone held equally liable.
o If one D is insolvent, the other must pay full amount andtry to recover
from other later.
o Dont have to name all tortfeasors as Ds; only have to catch one,
knowing that theres more than one.
o Problem: Disparities in fault not solved here, as its equal share, no
matter how negligent. (Still AL) gave way to comparative fault.
Comparative fault liability (majority): Allows factfinder to apportion fault.
o Factfinder determines shares of responsibility, and parties pay that
share.
B is only 10% responsible; B only pays 10% of damages.
Split: insolvency. Some states require solvent parties take up
others share, others say only responsible for your share.
o Splits:
Some say D is liable for entire amount if meets a fault threshold.
(50%etc)

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 Some states abolished J&S for pain and suffering and other
types of torts, but kept for ordinary damages (like CA)
o Every state but 5 has some form of comparative fault.
Concerted Action: Seen in drag race cases, provides for J&S liability on the
part of all Ds having an understanding, express or tacit, to participate in a
common plan or design to commit a tortious act.
o Parallel activity without more is insufficient. Must be able to identify
Ds.
o Ebarra: Surgeons left instrument in patient. P didnt know which left it
in him, and team was silent. Because of this, they held all who worked
on the area liable.
Barn fire hypo: 2 fire burn and destroy farm. One from a cigarette and another
from raking during a hot summer. Independent fires.
Is raker still liable?: Yes, this is good substantial factor application.
What if rake fire was not until a week later? No.
2 fires merge and burn together: Ds will argue but for causation, but should
still be jointly liable under substantial factor.
What if lighning started fire before other fires got to it? Likely to escape
liability.
Limitations

Statutes of repose: measured from time of sale or mfg of a product

Statute of limitation: measured from time of exposure or injury.

XI PROXIMATE CAUSE PxC

P has made out Duty, breach, and cause in fact or sufficiently disputed that D
cannot establish absence of them as a matter of law.

Instead, D will argue that even a negligent D who actually caused harm in question
should not be liable for Ps claim.

Overview

Proximate cause determines extend of Ds liability after actual causation is

established.
Scope of liability is the 3rd restatement term. More accurately describes
terms. Tort law doesnt impose liability on an actor for all harm factually
caused by actors tortious conduct.
o D did something negligent and caused chain of events leading to injury
by but-for standards, but were there unforeseeable or unusual
consequences following negligent act?
Usually key to PxC is foreseeability. Is it something a reasonable person
would have foreseen and avoided?
FORSEEABILITY

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 General rule: One is not responsible for all damages caused by ones
negligence, even if directly caused by the negligence. Only responsible for
the type of damages that are foreseeable.
o Wagon Mound: Ds ships negligently caused oil to spill into port and
do minimal damage to Ps wharf. Oil subsequently caused a fire when
molten metal dropped into water and ignited cotton waste floating in
the port, destroying the ships.
Fire was not a forseeable result of the negligent spilling, no
liability.
o WM overruled Polemis natural consequences rule. Polemis was case
of dropping board causing sparks to ignite and set boat aflame, holding
that exact way in which damage results need not be foreseen for
liability to attach.
o Must be consistent with eggshell P rule, which means foreseeability of
extent of harm is not relevant, just type.
Foreseeability doesnt mean it was likely to occur, but that there was
enough likelihood that injury would occur, that a reasonable person would
have avoided the conduct.
o 99/100 times tossing rock over wall wouldnt cause harm, but a
reasonable person would still avoid the risk.
Foreseeability can enter into torts equation in 3 places
o Standard of care was D giving ordinary care to prevent a
foreseeable injury?
o Proximate cause was the type of harm foreseeable?
o Duty If no foreseeable injury to victim, no duty to avoid the conduct.
LINKING PRINCIPLE: Injury V suffered must be of type Ds negligence made
more likely.
o Injury must be of type Ds negligent conduct made more likely to occur.
o If it is, injury is a foreseeable outcome of the negligence. If Ds conduct
didnt make injury more likely to occur, it was not foreseeable.
Trolley: If going too fast, it is more likely trolley will run off rail.
However, if trolleys speed makes it reach a point where a tree
falls down on it, speeding was cause in fact, but did not increase
chances of tree falling on it.
INTERVENING v. SUPERSEDING CAUSES

Intervening cause: Do not generally relieve D of liability, just another link in

causal chain.
o Sometimes cts will find an intervening cause is so surprising that the
injury was not foreseeable (driver hit on roadway gets so mad he
throws tire iron)
o Scope of risk:
Foreseeability of the intervening cause: May be the very risk
that makes the Ds conduct negligent in the first place, not
superseding.
o Type of harm v. Manner of harm:

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 Type must be foreseeable, but the manner (how it happened,)
does not have to be.
Gasoline near fire causes risk of explosion. Doesnt matter
that a flaming mouse carried flame to the gasoline.
Doe v. Manheimer: D not liable for Ps rape in overgrown
bushes. Rape was not in scope of foreseeable results of
the overgrowth.
Superseding Causes: Break in the causal chain.
o Superseding causes are unforeseeable and bring unforeseeable results.
Out of the blue.
o Usually done by another person and not expected.
If act is grossly negligent or intentional it is more likely to be
considered superseding in that it is less foreseeable.
o Natural occurrences not usually superseding.
o Disproportional, unexpected reaction can be unforeseeable &
superseding.
o In some situations criminal conduct or deliberate harm is
superseding. Doe.
However, a carrier sending a woman to walk through hobos
hollow, the type of foreseeable harm that should be avoided IS
criminal harm.
EXCEPTION TO FORSEEABILITY RULE EGGSHELL P RULE

General rule: If negligence causes a personal injury, P can recover for full
extent thereof, even if he is unusually susceptible to injury.
Also applies to property if property was more fragile than you could have
known, owner still gets full extend of damages. (Possibly D could defend that
P was carelessly transporting fragile property etc)
o D hits car with expensive vase inside and vase breaks D has to pay for
vase too.
Eggshell is a rule of damages as well as one of proximate cause: Once P
establishes that D negligently caused his injury, rule imposes liability for full
extent of injuries even if extent was not foreseeable to D.
o One it is shown that type of harm was foreseeable, P recovers for full
extent.
D must take his P as he finds him
o Fairer that D pay for unexpected extent of damages than for P to pay
when he is victim.
o Benn v. Thomas: D liable for Ps death 6 days after car wreck due to
heart attack caused by prior conditions exasperated by wreck.
Eggshell psyche: Courts hesitatnt to apply eggshell to emotional injury.
o Most courts draw distinction. Restatement 3rd does not.
Duty to mitigate damages:
o When V suffers more because he doesnt seek treatment, D not liable
for additional injuries.
o P must act reasonably to mitigate their injury.

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UNEXPECTED VICTIM

Negligence is relational: duty owed only to foreseeable victims.

o If what is being done doesnt pose foreseeable threat to a person, they
are owed no duty because they are outside the zone of danger as
perceived by a reasonable person.
o There is no negligence in the abstract. Proof of negligence in the
air, will not do.
Palsgraf: RR not responsible for injury o P further down platform
when firework package blew up and caused scale to fall over.
(Ds employee pushing person carrying inconspicuous firework.)
Too far away, risk to her not reasonably forseeable
(denying recovery at duty stage. Cardozo.
If no hazard apparent to eye of ordinary vigilance, an act
seeming harmless w/ reference to P is not tortious because it
happened to be a wrong, though not apparently involving risk of
injury to someone else.
One who jostles a man in a crowd without knowing that
man carried a bomb does not invade rights of others
standing at outer fringe when bomb goes off. Wrongdoer
to them is man who carries bomb, not one who explodes
it w/o suspicion of danger.
Palsgraf dissent: Andrews argues that negligence is a wrong
towards all, so RR should have duty, but the injury wasnt
forseeable (denies recovery @ PxC not duty)
General trend is toward recognizing broader duty. Proximate cause is tool to
decide such cases.
Liability is not derivative. One sues for breach of duty owing to oneself.
Some acts, such as shooting are so imminently dangerous to anyone who
may come in reach of projectile, however unexpectedly, as to impose a duty
of prevision not far from insurer.
Distance test: the more distance in time and space, the more surely do
other causes intervene to affect result.
If the injury is of a type that might have been foreseen, in certain
cases you can still find injury is too remote to be proximate.

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 13~14 DEFENSES

PLAINTIFFS FAULT

Contributory Negligence

Traditional rule: If ps negligence contributed to injury at all, recovery is

barred.
o Contributory negligence must be factual and proximate cause of Ps
injury.
o Burden on D to prove Ps negligence.
o Remember type of harm as well
Exceptions:
o Conduct of D is reckless/intentional.Unless P was
intentional/reckless as well.
o Last clear chance: If Ps negligence puts him in peril but D has a
chance to avoid using reasonable care, then he must do so and Ps
original negligence is not a defense if D did not use reasonable care to
avoid injury.
Minority rule. Most jurisdictions completely abandoned CN and all its
exceptions in favor of proportional harm theory.

Comparative Negligence: Replaces contributory negligence in most jurisdictions.

2 versions.

Pure: Jury or findings made indicating all percentages of fault, and thats
what P can get.
o Includes third parties and persons released from liability
o If P is 99% at fault, he gets 1% recovery.
o Purely several liability.
o Uniform Comparative Fault Act
Modified: P can recover whatever % D is at fault, unless Ps fault is over
threshold limit. Sometimes 50%, sometimes more.
o Reasoning: whoever is most to blame bears burden of the inquiry.
o If jury knows threshold, can affect their decisions in apportioning fault.
Medical Application: P failing to disclose medical information to doctor,
providing false information, or failing to follow instructions, can be found to
be comparatively negligent.
o However, people negligent in causing themselves injury are still
entitled to non-negligent medical treatment. Negligence of a party
which necessitates medical treatment is simply irrelevant to the issue
of possible subsequent medical negligence.
Fritts v. McKinne: Ps negligence in getting injured drunk driving
not a defense to Drs negligence in treatment causing Ps death.
Avoidable Consequences: Even if D is responsible for injury, P has duty to take
steps afterward to fix it, or his damages will be mitigated.

26 | P a g e
 P should go to Dr. and doesnt, or should take steps prescribed by dr and
doesnt, and injury gets worse, D not responsible for worsened injury.
D is only responsible for damages caused by his actions if P had reasonable
acted to mitigate the damages.
o Cts will lower recovery to what original damages would have been.
o Cts will not require P to do some unreasonable actions (risky surgery)
o Exception: P refuses treatment for reason of risk; need not be
significant or even probable.
o P refuses treatment for religious beliefs: Although decision to honor
religious beliefs not unreasonable, D has no duty to subsidize choice to
sacrifice in name of religion.
Anticipatory Avoidable Consequences

P failed to take steps before the accident that would have lessened injury. Ct
can reduce dmgs.
o Seatbelt/MC helmet
o Cts often reluctant to do this, often ball back on law of the state to
determine; limit reduction of damages by statute
o Some states (CA,NY, others) allow failure to use safety devices to fully
reduce recoverable damages burden on D to show what part of harm
was due to failure.
o Some states have made it criminal, but not admissible in civil action.
o Other state statutes say nothing about civil consequences, so courts
allow them to be found comparatively negligent.
ASSUMPTION OF THE RISK

Express assumption of the risk: P signs exculpatory or hold-harmless agreement

or orally agrees that D need not exercise due care for safety of P. Absolute
defense in negligence action.

4 Requirements to establishing defense of assumption of the risk

1. P must have knowledge of the facts constituting a dangerous condition.

2. P must know the condition is dangerous.
3. P must appreciate the nature and extent of the danger.
4. P must voluntarily expose himself to the danger.
Should be upheld if:
o Contract is freely and fairly made
o Parties are in equal bargaining position
o There is no social interest in which it interferes.
o Supports individual freedom, fairness (benefit of bargain), & reliance.
Even where there is an express agreement, ct can decline to enforce it
based on public policy concerns.
o Adhesion contracts (take it or leave it): unequal bargaining power.
Against public policy.
o Need of the public for particular product/service

27 | P a g e
 o Availability of alternatives.
o Broad concerns to minimize risk and spread costs.
Tunkl test for whether exculpatory agreement violates public policy:
They violate public policy if they affect public interest adversely. Itendified six
Tunkl factors relevant to this determination
1. The agreement concerns a business type generally thought suitable for
public regulation.
2. Party seeking exculpation is engaged in performing a service of great
important to public, which is often a matter of practical necessity for
some members of the public.
a. Hospitals, rentals, banking, childcare, telecom, public education
(incl sports)
3. Party holds himself out as willing to perform this service for any member
of the public who seeks it, or at least for any member coming within
certain established standards.
4. As a result of essential nature of the service, in the economic setting of
the transaction, party invoking exculpation possesses a decisive
advantage of bargaining strength against any member of the public who
seeks his services.
5. In exercising a superior bargaining power the party confronts the public
with a standardized adhesion contract of exculpation, and makes no
provisions for a purchaser to pay additional reasonable fees to obtain
protection against negligence.
6. Finally, as a result of the transaction, the person or property of the
purchaser is placed under the control of the seller, subject to risk of
carelessness by the seller or his agents.
Tunkl court clarified exculpatory agreement may affect public interest
adversely even if osme factors are not satisfied.
Some states, (incl MD & VT) determine what constitutes public interest
must be considered under the totality of circumstances of any given case
against the backdrop of current societal expectation.
o Hanks majority uses this test in finding adhesion contract violated
public policy in snowtubing case.
o VT & VA take much broader view on what will not be enforceable.
Majority of states uphold waivers of negligence, and adhere more closely
to Tunkl factors.
Unilateral disclaimers not effective unless brought to Ps attention.

Implied assumption of the risk: Primary & secondary.

Primary: accepting risks inherent in a particular activity. (a log bridge is

always dangerous.)
o Not a true affirmative defense. Goes to initial determination of
whether Ds legal duty encompasses risk encountered by P. Focuses on
Ds general duty of care.
States conclusion that P fails to establish prima facie case of
negligence by failing to establish duty.
o If the risk is inherent, there is no breach of duty on Ds part.

28 | P a g e
 o Have to show that V knew about the risk, appreciated extent of risk.
o Murphy v. Steeplechase: The flopper. P saw that ride made people
fall down. Knew risk and got on anyway.
May come out differently today if ct determined that he didnt
fully appreciate the risk thought it looked dangerous but really
wasnt. Could get to jury with claim that he knew he would fall,
but that it would be safe to do so.
o Sports participants:
Volenti non fit injuria: One who takes part in sport accepts
inherent dangers in it so long as they are obvious and necessary.
Cts usually require recklessness; assuming all injuries,
even those caused by anothers carelessness, are
assumed.
o Sports spectators:
Assumption of risk applies, esp when there is an option of
seating w/ less risk (net) and P chooses to sit in unprotected
area.

Secondary: accepting risks caused by someone elses negligence. TWO

KINDS
o Unreasonable: (Conscious assumption: hiker goes over rickety log
bridge even though a better one is nearby: barred or mitigated
damages)
o Reasonable: (careless assumption: hiker goes over rickety log bridge
but no other is nearby, 3 outcomes) diminished recovery (most
common)
Some courts have abolished secondary assumption of risk in adopting
comparative fault.
1. If Ds negligence in accident is greater than Ps, he can recover for Ds %
of fault.
2. Reasoning is that the purpose of comparative fault is to apportion fault.
rejects assumption of risk as a total bar to recovery. Only allows the jury to
consider Ps negligence in assuming risk.
3. Primary impied assumption of risk still applies in these jurisdictions
difference is that primary is not based on anothers negligence, so there is
no breach of duty to begin with.
a. Davenport v. Cotton Hope Plantation: Rejects 2ndary implied
assumption of risk and says that comparative fault should apply
when a man falls in a stairway w/ blown lights
Most courts that have adopted comparative fault systems have done
away w/ implied assumption of the risk as a distinct defense and resort to
apportionment of fault; however, other courts still find that assumption of the
risk is a complete bar to recovery.

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 LIABILITY FOR DEFECTIVE PRODUCTS

If a product is reasonably expected to be dangerous if negligently made and the

product is known to be used by those other than the original purchaser in the
normal course of business, a duty of care exists.

Macpherson v. Buick: If the nature of such a thing is that it is reasonably

certain to place life and limb in peril when negligently made, it is then a
thing of danger (foreseeability, 2 prong test)
o If, to the elements of danger there is added knowledge the thing will
be used by persons other than the purchaser, and without new tests,
then, irrespective of contract, mfg is under a duty to make it carefully.
o Need for caution increases with probability of danger.
Implied warranty:
o i. Warranty of merchantability: product youre selling is fit to be sold.
o Ii. Warranty of fitness for a particular purpose: buyer relies upon seller
to select a product to fit buyers needs
Privity: Generally speaking you can be sued for breach of contract only by
parties in the contract
o Exceptions: in field of defective products
A. purchasers immediate family could sue under privity if they
are injured by breach
Expanded liability for something dangerous like poison, duty to
anyone who could get mislabeled poison.
o Irrespective of privity, mfg is responsible for an injury caused by
item to any person who comes in lawful contact with it.
UCC provides certain alternatives for expanding privity beyond immediate
purchaser.
o Warranty can be forced bu purchaser, their family, hosehold, and
guests of household.
Public policy demands responsibility be fixed wherever it most effectively
refudces hazards to life & health in defective products reaching market.
Manufacturere guarantees safety of his product even where there is no
negligence.
o Mfg liability should be defined in terms of safety of the product in
normal and proper use, and shouldnt be extended to injured that cant
be traced to product as it reached mkt.
o Mfg of finished product has final duty of inspection.
Used goods sellers: Most cts declined to impose SL on sellers of used
goods.
Govt contractors: cannot be held liable for inadequacies as long as certain
requirements are made.
Proximate cause limitations still apply.
Limitations on emotional distress do not apply in products cases where
plaintiff was not a bystander but a product user.
Liability for Products dangerous when defective

30 | P a g e
 Strict liability.
Originally as matter of contract. D could be sued for breach of contract by
parties to bargain.
o Exception in families can bring suit w/ warranties for dangerously
defective products (close enough in privity) merchantability or fitness
for purpose.
Duty: If product has potential to do harm and ppl other than immediate
purchaser will be subject to that risk, then mfg owes a duty to the consumer
eventually using the product.
o 2 requirements
o 1) MFG sold product of type that can do harm if negligently
manufactured.
o 2) MFG knows that persons other than immediate purchaser will be
using the product.
Macpherson: D liable for injury to P after collapse of wheel even
though he didnt make the wheel and P was not the immediate
purchaser could have foreseen that P would use the wheel.
(Still a negligence case. No longer applies)
Things P must prove:
o Look for sale, commercial lease, some kind of commercial transaction
that makes products available.
Typically not things like garage sales, lend to friends, or used
product seller.
o *Defective product, in spite of every reasonable precaution
ALL SL TORT CLAIMS DEPEND ON A DEFECT IN THE PRODUCT.
Injury alone does not spur strict liability. Cut w/ sharp knife not
defect. Blade falling out of handle onto foot would be.
o Cause in fact.
o Proximate cause
Product devect must have caused injury both in fact &
proximately.
Sufficiently unforseealbe chain of events may eliminate prox
cause even in SL (unexpected throwing bottle at waitress by
customer may be superceding)
Unforeseeable uses, mods, or misuses of products may also
interrupt prox caus.
o Injury that is compensable
o [Defenses that could reduce or eliminate recovery]
In the chain of hands that a product passes through, anyone who sells the
product in defective condition can be held strictly liable
o Escola v. Coca-Cola Bottling: Res ipsa applies and D is liable for injury
to P when coke bottle exploded b/c the defect was likely the bottling
companys fault.
Dissent argues in favor of absolute liability for products that will
not be subjected to further tests even without negligence.
3 Types of Defects

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 Manufacturing
o Most common. Product has come off the line different form (and more
dangerous than) the intended product.
Defect generally apparent by time of trial, courts have
concluded SL should follow.
Dangers almost always latent.
Should emerge when product used in intended or reasonably
foreseeable manner.
Can also apply to things like rough handling in shipping.
Design
o Product was made the way it intended, but had some inherent (subtle)
defect in design.
Ext of mfg defect but applied to product design as whole.
Warning

Tests to determine if defect exists

CONSUMER EXPECTATION TEST

o What would an ordinary reasonable consumer expect from the
product?
o Whether the circumstances of the products failure permit an
inference that the products design performed below the legitimate,
commonly accepted minimum safety assumptions of its ordinary
consumers.
o P must show:
A. Product failed to perform as safely as an ordinary consumer
would expect.
B. Defect existed when the product left the mfgs possession
C. Defect was a legal cause of Ps enhanced injury
D. The product was used in a reasonably foreseeable manner.
o Courts have moved away from CE test for design defect,
Depends on complexity of product. Less complex product
will more often use CE, more complex will use RAD.
Camacho v. Honda: CE test denied by ct re: lack of crash bars on
motorcycle even though danger was obviousl Says safer
alternatives should still be considered.
Crashworthiness doctrine: Vehicle mfg may be liable in
negligence or SL for injuries sustained in vehicle accident where
a manufacturing or design defect, though not the cause of the
accident, caused or enhanced injuries.
RAD Test (Restatement 3rd )
o A design is defective if foreseeable risks of harm could have been
avoided or reduced by the use of a RAD, and failure to adopt the RAD
makes the product unreasonably dangerous.
Cts will generally only consider RADs that dont change nature
of product.

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 MFG has responsibility to do research etc to find harms and
guard against them.
State of the art liability will impose knowledge of most
knowledgeable firms.
Cts will usually not hold mfg responsible for things not known as
long as reasonable inquiry was done.
o Is product unreasonably dangerous? Apply the ORTHO factors.
1. Usefulness/desirability of product to user/public.
2. Overall safety (and likelihood and severity of injury) of the
product
3. The availability of safer alternatives.
4. Mfgs ability to eliminate unsafe character w/o impairing
product utility or making it too expensive.
5. Users ability to avoid danger w/ use of appropriate care.
6. Users anticipated awareness of dangers and their
avoidability, or existence of suitable warnings/instructions.
7. Feasibility, on part of mfg, of spreading the loss by setting the
prie of product or by carrying liability insurance.
o Expert testimony often used to show presence/non-presence of RAD, as
is the use of better designed by competitors in the industry. < (best
way)
Soule v. General Motors: Ct determines that RAD test applies b/c
issue involves technical & mechanical detail and expert
testimony is necessary b/c issues are too complicated for
average consumer. Too complex for CE
Irreducibly unsafe product: Product so dangerous and os so little common
use. Products for which no alternative exists and are so dangerous and of
such little use that under risk utility analysis, a mfg would bear cost of liability
of harm to others (OBrien, unpopular verdict.)
Warnings

If there is no way to eliminate inherent danger of a product, users should

appreciate the risk and take appropriate precautions.
o Mfg should provide adequate warning to ensure consumers appreciate
risk. Best way to prevent accidents.
o When paired w/ adequate warning, a product may no longer be
unreasonably unsafe.
o Not dispositive that P did not read warnings.
Theory could be inadequate warning, etc.
Still an issue of causation
Adequacy of warnings
o Warnings can only function if read and understood.
o If a warning is nonexistent or inadequate, the product is defective.
Adequacy depends on totality of the circumstances.
Words must be clear prominence depends on dangerousness

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 Nature & severity of danger must be reasonably explained
reasonability of content.
Consumer should be told how to avoid injury and how to react if
it occurs.
o Clear & specific warning is adequate. Mfg need not warn of every
mishap or source of injury that the mind can imagine coming form the
product.
Excessively verbose warnings may defeat purpose b/c consumer
wont pay attn
Hood v. Ryobi: Ds warning in multiple places on saw and in
manual were sufficient to deny recovery to P after he was
injured after removing safety guard. Warnings were adequate
although not encyclopedic. No need to explain reason for
warning. (Serious bodily injury enough)
o Prominence of warning must be proportional to danger.
Causation: would clear warning actually have prevented the harm?
o P asking for clearer warning benefits must be weighed against total
costs, including dilution of warnings.
Duty to warn:

Learned intermediary doctrine

o As opposed to general consumer making their own purchasing
decisions relying on packaging and instructions that come w/ product.
Some products are available only through learned intermediaries:
people w/ expertise in the field that have a responsibility to counsel the
consumer on use of the product.
RX drugs are best example.
o Doctor acts as learned intermediary between patient and rx
manufacturer by assessing medical risks in light of the patients needs.
o Mfgs duty to warn the LI, not the ultimate consumer (Dr/LI must pass
info to patients)
May have duty to warn if they advertise to public.
o 2 EXCEPTIONS:
Mass immunizations must warn consumer, because usually no
Dr/Patient relationship or counseling.
When some statute/regulatory agency mandates warning to
consumer.
DUTY: Mfg has duty to warn only of risks that it knows or reasonably
should know about.
o Cant warn of risk unknown.
o Moves away from implied warranty of Merchantibility: D is not liable for
failure to warn of risk that were not reasonably foreseeable at the time
of sale or could not be discovered by way of reasonable testing prior to
marketing the product
o A mfg will be held to the standard of an expert in its field.

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 o Starts to blur SL w/ negligence. Requiring knowledge of a defect
somewhat ruins concept of SL.
Continuing duty to warn:
o If mfg discovers product defect after it has been sold, they may
have duty to warn consumers that bought the product.
o Balance the degree of harm w/ costs of tracking down purchasers and
warning them. If reasonable, ct may impose the duty.

-DEFENSES TO SL

Assumption of the risk.

o If consumer was aware of the defect and the risk it created, used the
product anyway, recovery will be limited or barred depending on
jurisdiction (those holding contributory negligence). Consumer has to
voluntarily assume the risk w/ full understanding of danger.
Most would just reduce recovery.
Comparative fault:
o Courts will apply even in SL.
o Problem is that in SL, mfg is liable without fault, so the issue is
comparison of consumer negligence w/ mfg liability.
o A consumer has no duty to discover or guard against a product
defect, but a consumers conduct other than the mere failure to
discover/guard against a defect is subject to comparative
responsibility.
Restatement 2nd: Negligent failure to discover or guard against
defect is not a defense.
Products liability restatement: Ordinary consumer have no
reason to expect a new product is defective
o Court can reduce recovery based on carelessness of victim, but
doing so creates problems when asking jury to apportion fault.
Have jury rate product percentage, then rate consumers
negligenge use those numbers to apportion fault. This causes
problems because it is hard to combine.
GM v. Sanchez: Ct followed comparative fault doctrine in saying
Ps negligence involved more than finding a defect when didnt
put truck all the way into park. Jury allocated 50/50 liability.
o Comparative fault vs. comparative negligence:
Percentage that a party caused or contributed to cause in any
way, whether by negligent act or omission or by conduct/activity
violative of applicable legal standard.
o PL restatement on advanced injuries:
Once P proves advanced inuries occurred, burden is shifted to D
on their magnitude.

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 If D is unable to prove the amount of enhanced injuries, it
will be liable for the entirety of the Ps harm (subject to
comparative responsibility apportionment)
Modification of product:
o If a product is substantially modified after sale, mfg/seller not liable if
mod significantly alters the product.
Exceptions: if the product is truly defective and cant be used
w/o the modification
Some jurisdictions find liability for foreseeable
modifications.
Some will also find that if product is designed in such a
way that safety measures are easily defeated, they can
be liable.
o If the 3rd party mod makes product unsafe, mfg relieved of liability
even if the mod is foreseeable.
Jones v. Ryobi: MFG not liable for removal of a guard on printing
press that then caused injury even though it was foreseeable
and most consumers did remove it
o Even though a mfg doesnt design a product to be modified, it has a
duty to warn of foreseeable modifications. - No duty to design
against modification.
Liriano v. Hobart: Since cost of warning of danger of removing
safety guards small, and the mod foreseeable, mfg had duty to
warn of danger of modification. Should have a warning against
removing guard, as well as warning against using w/o guard.
(Meat grinder)
Duty to warn or not depends on what is reasonable under the
circumstances

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 INTENTIONAL TORTS

Basic doctrine; usually specific requirements

INTENT

Definition of intent/ Restatement 3rd requires:

o A) person acts with the purpose/desire of producing the consequence
or
o B) person acts knowing that the consequence is substantially certain
to result.
Must make inferences from circumstances as to what one should
know
The mere absence of intent to injure or embarrass P or to commit
assault/batteries will not absolve D from liability if he knew that injury could
or would happen.
Question can be whether knowledge of contact is enough, or if it must be
knowledge of the harm that will occur.
o Restatement suggests not only knowledge of contact but that it will be
offensive or injurious. (Doesnt come up very much still uncertain.)
o Garrat v. Dailey: 5 yr old boy excused form liability after moving a chair
and making P fall b/c ct says his age shows he may not have known
such an injury would occur.
Transferred intent
o If intended to inflict injury on someone and injues someone else (victim
to victim)
o Intend to assault but batters instead (tort to tort)
Intention to cause fright (assault) but wind up injuring someone,
transfers intent to injury.
Assault & Battery

Assault: Intentional physical act (of a threatening nature) or threat that puts
someone in reasonable fear of imminent bodily harm.
o Ps apprehension of injury is what makes Ds acts compensable.
Recoverable damages are for Ps mental disturbance,
including fright, humiliation, and any physical illness which may
result from them.
Purely emotional damages in assault. Cts much more
willing to compel recovery in realm of intention.
o Must have intent to cause fear or know w/ substantial certainty such
fear could occur.
Picard v. Barry Pontiac Buick: even w/o intent to harm P, putting
her in fear by walking towards angrily and making gestures was
enough for assault.
o Conditional threats do not count. Must be imminent.
Look for opportunity to avoid the harm.

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 o Words alone may not be sufficient. Depends on circumstances
(inflection, location, subsequent actions)
Needs both imminent fear, bodily harm.
o Physical act requirement could be as low as rolling up sleeves,
walking towards, etc, coupled with other things like words.

Battery:
o Act that is intended to, and does cause, an offensive contact with or
unconsented touching of or trauma upon the body of another.
(Restatement 2nd)
Can occur directly or indirectly.
Usually consummation of assault.
P doesnt have to be aware of conduct at time it occurs.
Offensive contact with object attached to or identified w/
Ps body can be sufficient to constitute battery (indirect
contact)
Picard: placing finger on camera lens sufficient for battery.
Anything directly grasped in the hand, clothing,
cane. Intimately connected with ones body as as to be
regarded part of their person
o Act not done with intention to cause harmful or offensive contact does
not make the other liable for a mere offensive contact with others
person although the act involves an unreasonable risk of inflicting it
and, therefore, would be negligent or reckless if the risk threatened
bodily harm.
Offensive contact:
o Bodily contact that offends a reasonable sense of personal
dignity.
o Need not be directly caused by some act of the actor, the essence of
Ps grievance consists in the offense to the dignity involved in the
unpermitted and intentional invasion of the inviolability of his person
and not in any physical harm done to his body.
o Must be one which would offend ordinary person, not an unduly
sensitive one.
o Must be unwarranted by social usages prevalent at the time and place
at which it is inflicted.
o Contact which is rude but not overly offensive is not battery.
Whishnatsky v. Huey: Ct says no battery when D closes door on
P and mutters at him when P walked into a meeting. A
reasonable person would not be offended by such an act.
Contact was momentary, indirect, and incidental.
Intent element
o A. intending to hurt or offend
o Not wanting to hurt, but doing something w/ reasonable certainty that
the harm could happen.

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False imprisonment

Unlawful action or show of force that intentionally restrains someones

personal liberty or freedom of movement.
o Confining P to somewhere they dont want to be, forcing P to go
somewhere they dont want to go.
Confinement: Must be done deliberately, no accidentally. Cases suggest P
must be aware they are confined.
o P has no reasonable way to escape
Locked front door but back door open is reasonable escape.
o Must be involuntary
o Persuasion/compelling to be staying somewhere, without threats of
harm is not enough.
Requires P yield to force, threat of force, or assertion of
authority.
o Requires actual or legal intent to restrain. Actual force
unnecessary.
Restatement 2nd ways in which an action may bring about confinement
required as element of false imprisonment including:
o 1) Actual or apparent physical barriers;
o 2) Overpowering physical force, or by submission to physical force;
o 3) Threats of physical force;
Must be immediate, not conditional. Can be against P, other
people, or even Ps property.
o 4) Other duress; and
o 5) Asserted legal authority.
o It is essential that confinement be against the persons will.
o Lopez v. Winchells Donut House: P was not falsely imprisoned when
questioned in back room b/c she could have left at any time and no
threats of force were used against her.
o If P can voluntarily leave, no false imprisonment; essential that
confinement be against Ps will. Voluntary consent to confinement
(moral pressure?) is not false imprisonment.
Shopkeepers privilege:
o Store owner can detain and question someone they think has been
shoplifting for a reasonable amount of time and in a reasonable
manner until authorities arrive.
o Becomes problem if person is innocent.
Reasoning is that they dont know who person is or where they
live, so would have no way to track down later.
Damages: P can recover for mental distress by itself in false imprisonment.
No injury required.
INTENTIONAL INFLCITION OF EMOTIONAL DISTRESS

D intentionally causes emotional distress in another or acts in a way

he knows or should know will cause emotional distress to another.
4 elements:

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 1. Conduct must be intentional or reckless
a. Either w/ specific purpose or know/should have known distress
would occur.
2. Conduct was outrageous and intolerable in that it offends against the
generally accepted standards of decency and morality.
a. This avoids frivolous suits and situations of mere bad manners/hurt
feelings
b. Where reasonable men can differ, it goes to jury.
3. There was a causal connection between wrongdoer conduct and emotional
distress.
4. Emotional distress must be severe.
Same problems exists as w/ negligent infliction of emotional distress in that it
is hard to quantify, difficult to compensate for, and easy to fake.
Superseding causes can defeat proximate cause and therefore recovery here.
Restatement 2nd approach:
o One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to
liability for such emotional distress, and if bodily harm to the other
results from it, such bodily harm.
Comment: expressly states rule covers situation where actor
knows distress is substantially certain to result from his conduct.
Womack v. Eldridge: P awarded damages for his picture being used in a child
molestation case w/o cause. All 4 elements were met. Superseding cause
possible b/c most damage was caused by court, attorneys, etc, rather than D
photographer.
DEFENSE AND PRIVILEGE

Limited affirmative defenses to intentional torts.

Contributory negligence doesnt usually work.
o Although negligent provoking of a fight may affect recovery.

Defenses:

Consent: kind of counterpart to assumption of the risk.

o Consent to a legal activity is a defense for the D.
o Consent to an illegal activity may not be.
Majority rule: Each party is civilly liable to all other parties for
any injury incurred.
Majority hold you cant consent to illegal activity.
Minority rule: No one is liable for any injuries incurred unless
they are caused by excessive use of force or malicious intent.
Hart v. Geysel: Ps estate in illegal prize fighting cannot
recover for his own wrongdoing. Absent excessive
force/malicious intent.
Ct in hart says consent to illegal fight means no recovery.
o Sportsmen: Generally cant recover for battery unless injury is one
that is not contemplated as part of the sport.

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Privileges

Self-defense: Has 3 requirements

o Must honestly and sincerely believe that the use of force is necessary
to abate an imminent threat.
o Fear was reasonable under the circumstances.
o Force used must be reasonable and in proportion to imminent
threat/danger.
o Force can be used to protect ones life or body, or the life/body of
others.
Mistake:
o Right to defend oneself even if actions taken in self-defense were from
a mistaken but reasonable belief of being under attack.
o Curvoisier v. Raymond: Judgment for jewelry store owner D reversed
due to jury question existing whether his shooting cop was reasonable
when the thought cop was part of a gang trying to hurt him.
Defense of others:
o Force can be used to protect others, right is derived from that partys
right to use it themselves.
Retaliation: Once danger has passed, self-defense privilege expires. Cannot
use force for past injury.
Deadly force: Can only be used against threat of serious bodily injury or
death.
Excessive force:
o Person using excessive force in asserting privilege of self-defense,
other party then has privilege of protecting himself against the degree
of force being exerted by the first.
Duty to retreat- deadly force?
o Non-deadly force: no duty to retreat.
o Majority rule: Allowed to use deadly force against threat of deadly
force, even if you do not retreat.
o Minority rule: You must attempt to retreat before using deadly force
to defend yourself, unless in the home. (Castle doctrine)
Defense of Property

Can use force to protect property w/ sincere and reasonable belief that use of
force is necessary, level of force must be reasonable under circumstances.
o Must be proportional to use of force by attacker.
No privilege to use of any force calculated to cause death or serious bodily
injury to repel threat to land or chattel, unless there is also such a threat to
Ds personal safety as to justify self defense.
o Human life more valuable than property. Even if person is violating the
law, using deadly force against them to protect only property is
murder.
o Katko: D held liable after setting up spring gun to shoot trespassers.
Hurt Ps leg while he was entering the house.

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 Trespassing not punishable by death, thus cant use deadly force
to prevent it.
Punitive damages allowed when malice is shown or when D acts with
wanton and reckless disregard of the right of others.
Posners reasonableness test to determine whether use of deadly force is
justified to protect property. Relevant factors:
o Value of property vs. cost of human life/limb
o Adequate legal alternative to use of force
o Location of property in terms of difficulty of protecting by other means.
o Kind of warning given
o Deadliness of device used
o Character of the conflicting activities
o Cost of avoiding interference by other means.

Necessity: Allowing one to commit deliberate act that injures another.

Private:
o Use, or in extreme case, destroy property of another to preserve ones
own person or property of greater value.
o Compensatory damage applies. Punitive does not as no moral blame.
o Privilege to use others party, but still has to pay damages. Property
owner cant eject you.
o If someone has legitimate need, cant deny them use of property if the
injury they cause will be less than the alternate injury.
o No affirmative duty to help exists, but one cannot do nothing
(nonfeasance) or hinder their use of property (misfeasance)
Public:
o Cause deliberate injury for sake of greater public good.
o Govt usually invokes this privilege, not individuals.
o Complete privilege: no compensatory or punitive damages.
Awarding damages would deter voluntary prevention of public
harm.

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 DAMAGES

Compensatory

P is looking for payment of monies that, in some sense, will restore P to point
he was before.
One-time payment. P may only sue once for all damages arising from event,
so have to make predictions for future damages.
Pecuniary:
o Items like lost income, past & future lost wages, expenses incurred,
medical bills, etc.
o Easy to quanity.
o Take account of inflation, and also growth of invested lump sum
(sometimes cts use these to cancel e/a out)
o Issues:
Prospective. Lump sum can overestimate or underestimate.
Accounting for TVM, inflation, etc.
Not subject to income tax even though normal income would be.
Lost opportunities? Could have been promoted, become athlete,
etc.
Give difference between what you used to earn and what youre
earning now.
o Legal fees not recoverable under American system.
Non-pecuniary:
o Pain and suffering:
P not made whole if not compensated for the pain and distress
caused by the injury.
Problems: Legal fiction that money can compensate for such
loss, but its all the court can do. Attempt to match $ w/ degree
of pain and suffering.
2 approaches to P&S
A. per diem amounts: mathematical formula, juries can
tend to rely on this as factual too much.
B: Trading places.
Standard of review: Appellate court can only change awards if
amounts shock the conscience and shows jury was acting out
of prejudice or passion.
Seffert v. LA Transit lines: Ct says damages for injuries to
Ps foot arent too extreme even though they are more
than 30 years of her salary.
Anchoring effect: Once you hear a number, thinking tends to be
in relation to it.
Awareness requirement: compensatory damages should not
be awarded to a person completely unaware of their pain and
suffering.
If V doesnt know he is being awarded money, it doesnt
compensate.

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 Doing so would make damages punitive, not
compensatory.
Problem: Sets up paradox that someone who hurts a
person so bad that they are unaware of it gets off with
less than person who hurts less.
Degree of awareness requires: Just some is enough.
o McDougald v. Garber: P in coma and completely
unaware of her suffering, no evidence of real
awareness. Ct rejects argument of recovery based
on scale/degree of awareness, insisting *some*
evidence of awareness must be present.
o Loss of enjoyment of life: Most courts dont separate form P&S.
Separate categories would be more precise, but may exaggerate
or duplicate awards.
Some courts give hedonic loss of pleasure damages
(loss of life compensation to people killed) 3 states.
McDougald: Dissent argues for separate categories.
P&S gives damage for affirmative feeling; loss of
enjoyment is damage for lack of feeling.
Can have loss even if unaware because its based on
failure to experience.
o Deceased victims: Two interests at stake.
Survival statutes:
Address Vs interest in own bodily security
Allows estate to recover for lost wages, med expenses,
P&S that deceased would have been able to recover for
himself had he survived to trial.
Problem: if P dies right away, no P&S, but if he lingers,
then family can recover P&S until point of death.
Wrongful death: Addresses dependents interest. *Always by
statute as CL forbids dead people from recovering*
Recovery by survivors for pecuniary loss they suffer as a
result of the deceaseds lost income (not for survivors
emotional distress)
Wrongful death of child: Where no earnings record, future
income should be calculated on rebuttable presumption that
deceased child would be based on national average.
Rebuttalbe on evidence that might include Precocity,
mental and physical health, intellectual development,
relevant family circumstances.
Collateral source rule: At common law, tort recovery not limited by
payments of collateral source (insurance payment, etc) and jury should not
know anything about it. No adjustment of damages should be made for
collateral source payments. No evidence should be allowed.

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