TABLE OF CONTENTS

Intentional Torts:
Battery 1
Assault 1
False Imprisonment 2
IIED 2

Defenses:
Consent 3-5
Insanity 5-6
Self-Defense 6
Defense of Property 6-7
Necessity 7

Damages 8

Strict Liability:
RPS 8-9
Negligence 9
Landowner Duty 10-11

Negligence:
3 Elements of Negligence 11
Exception to General Rule 12
Minor 12

Calculus of Risk:
Risk 13-14
Hand’s Formula 14

Custom:
Custom Not = Ordinary Care 14
Regular Custom 14-15

Statute & Regulations:

Statute Breach 15-17

π’s Conduct:
Contributory Negligence 18-19
Last Clear Chance 19-20
Assumption of Risk 20-21
Comparative Negligence 21-22

Causation:
Cause-In-Fact 22-23
Loss of Chance of Survival 23-24
Multiple Sufficient Causes 24-25
Proximate Cause 25-28

Affirmative Duties & Obligations:

Reasonable Care Duty 28-30

Products Liability:
Manufacture Defect 31-33
Design Defect 33
Warning Defect 33-34

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 A. INTENTIONAL TORTS

Doctrine of transferred intent: fact that the injury resulted to another doesn’t relieve defendant from responsibility
(when desiring to hurt one person hurts another person) → can transfer across torts

I. Tort of Battery

Elements of Battery: (1) unlawful (2) intentional (3) touching

If the intended act is unlawful, the intention to commit it must necessarily be unlawful
Vosburg v. Putney: Putney slightly hits toe on Vosburg’s shin. π doesn’t feel anything at first but then eventually
ended up suffering pain & having operation. Earlier, π suffered coasting injury to the same leg which was already in
diseased state prior to ∆’s touching.
- Intention is about the act, not the resulting harm (no mal intent)
- Environment was unlawful because it was in class, after teacher said stop

Trespass - Every unauthorized and therefore unlawful entry into the close of another is trespass
Doughetry v. Stepp: Stepp unlawfully trespassed on Doughtery’s property because he believed it was his.
- It was a good faith mistake (no mal intent), but he intended to be on the property, and because it wasn't his
it was unlawful
- Nominal damages because no physical harm but still unlawful ($1 Taylor Swift)

If no intent, need knowledge of substantial certainty that an act/result will happen = battery (intending outcome)
Garratt v. Dailey: Dailey, 5 yrs. old, pulled chair out from Mrs. Garratt. She fell and fractured her hip. Dailey was
liable for battery because he had knowledge without a substantial certainty that harm would result
- Knowledge of substantial certainty: is a subjective standard because it’s if the defendant knows a certain
outcome will occur
o Ex: Fire a gun, don’t intend to shoot anyone, but do… liable for battery because know there is
substantial certainty that harm would result

An imposition to a person’s autonomy to constitute battery if act is intentional and unlawful

Alcorn v. Mitchell: Mitchell spat in Alcorn’s face in a courtroom.
- No physical harm, but harm to Alcorn’s personal autonomy
- Spitting is a battery because it’s an intentional unlawful touching
- Court produces liability in order to prevent other harmful touching/retaliation that comes from that

II. Tort of Assault

Elements of Assault: (1) apprehension of an imminent unlawful contact; (2) D intends to cause harm
3 Types of Damages: (1) punitive [Alcorn v. Mitchell – rare] (2) Nominal (Stepp) (3) Compensatory
(most common type of damage)

Imminent apprehension of harm is all that is required to prove assault, not actual physical harm
I. de S. And Wife v. W. de S.: ∆ came in the house at night, but the tavern door was closed, so he struck down the
door with a hatchet and the wife stuck her head out the window and yelled out the window to stop. He saw and
heard her, but continued to strike. He did not touch her
- There was harm and trespass because even though there wasn’t physical harm, she still suffered from the
apprehension of the harm

Blackstone (Commentaries): Assault is an inchoate violence→ “anticipating a further criminal act”. It’s more than a
threat, but not the physical hurt not. Step right before violent act. Additional step of allowing to sue for damages re:
anticipation

Tuberville v. Savage: Savage put his hand on sword, and said would cut off your head if it wasn’t assize time. Threat
has to be imminent, close, and actual (as opposed to potential) → words alone aren’t enough

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Allen v. Hannaford: Hannaford points gun at Allen and threatens to shoot, but doesn’t and the gun was unloaded.
Whether it’s an assault depends on apprehensions created in the mind of person assaulted rather than the secret
intent of person committing the assault.

III. False Imprisonment

Elements of False Imprisonment: (1) ∆ intend to confine π (2) ∆ substantially confines & restrains π to bounded
area, (3) π doesn’t consent to confinement, or is consciously aware of confinement.

False imprisonment requires total or perceived total obstruction of freedom

Bird v. Jones: Bird walks & sees barricade set up by Jones for boat race. J said B can walk any other direction, just
not this one. Wasn’t restrained or detained.
- Jones intended to limit B’s movement, but restriction of movement isn’t confinement.

Whittaker v. Sandford: Woman allowed to move freely on yacht, but was restricted when on land.
- False imprisonment but not dramatic enough to get full damages b/c she wasn’t humiliated/had harm done
to her dignity/disgrace, which is typically associated w/ FL
- She was treated well on yacht but restricted on land.
- Liability for false imprisonment: usually for minor harms, ∆ wont be liable for negligently imprisoning
someone, but when π suffers a major physical harm from ∆’s negligence, the ordinary negligence would
take over

Exception for shop owners: false imprisonment is allowed when suspicion, matter, & amount of time is reasonable
(objective test)
Coblyn v. Kennedy’s, Inc.: Coblyn, 70 y/o man, was shopping at Kennedy’s while wearing his ascot. Took ascot off
to try jacket on & was putting ascot back while exiting store. He was stopped by employees (one grabbed arm), who
demanded he come back to store in front of 10 people. C suffered heart attack as result.
- Time of imprisonment was reasonable, but manner wasn’t.
- False imprisonment can be any general restraint or demonstration of physical power, which can be avoided
by submission.

IV. Intention Infliction of Emotional Distress (IIED)

Elements of IIED: (1) Extreme and outrageous conduct (conduct that transcends all bounds of decency, and happens
infrequently), (2) ∆ intentionally or recklessly causes P to suffer severe emotional distress, (3) π suffered extreme
emotional distress (trust π actually did b/c if the standards of extreme & outrageous conduct & intentional/reckless
infliction are fulfilled, π will suffer IIED)

a. Reckless  deliberately disregarding a high probability of a certain outcome (subjective standard)

i. “High probability” is between probably and virtually certain

Policy Argument: Emotional distress is intangible so it’s hard to measure  court concerned b/c hard to prove how
emotionally distressed π is. High standard for IIED b/c of potential conflict with 1 st amendment rights – trust π is
telling the truth about experiences of emotional distress
- Only need IIED when π can’t prove any other torts

Must intend to cause of recklessly cause severe emotional distress – an act done willfully & without justification that
causes grave harm is still actionable
Wilkinson v. Downton: “practical joke” that π’s husband was in major crash w/ legs broken; went into nervous
shock – not assault or battery b/c not touching or threat of touching her – just began to vomit; paralyzed.
- No mal intent, but ∆’s act was calculated showing clear intent to produce an effect
- Court treats nervous shot as physical damage

V. Consent – Consensual Defenses

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1. Expressed Consent

Consent as defense doesn’t apply when scope of defense is exceeded

Mohr v. Williams: Mohr complained of trouble in right ear, Williams examined & suggested operation. When M
under anesthesia, Williams examined left year & discovered it’s in worse condition than the right. After consulting
family physician, operated on left ear instead of right (b/c of terrible condition), performing it skillfully &
successfully. Mohr claimed operation greatly impaired hearing.
- If operation on the right ear was medically necessary, consent would’ve been implied

2. Implied Consent
- Burden is on π
- Circumstances where implied consent is given: emergencies, handshake
- Unlawfulness depends if there is consent

O’Brien v. Cunard Steamship Co.: π was immigrant, stood in line w/ other passengers & held out arm to dr. She had
no typical vaccination mark but said the vaccination she had left no mark. π still held up her hand & allowed
vaccination to take place. Ct. said consent barred cause of action  her action didn’t indicate she was against the
vaccination.
- Case shows ∆ gets benefit of doubt, burden on π to prove she didn’t consent
- π’s behavior was consistent w/ what a reasonable person would think, so it’s implied consent
o Reasonable mistake = not liable

Consent in emergency situations

Schloendorff v. Society of NY Hospital: Surgeon who performs operations w/o patients consent commits assault for
which he is liable for damage.
- Exception: emergency where patient is unconscious & necessary to operate before consent can be
obtained. {Doctrine of implied consent when medical emergency requires immediate action to preserve
health/life of patient}

Determining the scope of consent

Kennedy v. Parrott: During appendectomy on π, surgeon discovered cysts on ovaries so punctured & cut blood
vessel & developed painful phlebitis in leg. Ct. rejected trespass claim, saying consent will be construed as general
& surgeon can extend to any abnormalities (using sound professional judgment).

Hoofnel v. Segal: π was woman w/ limited education & came to surgeon to remove lesion from color. Dr. said to
remove uterus & ovaries but π said no. Regardless, signed consent that if needed the surgery can be performed.
During surgery, drs agreed to remove both b/c of conditions. Judge said clear & unambiguous words of consent
form superseded prior convo.
- Existence of consent form = presumption that people read it before signing it, understand it, etc.  “to hold
otherwise would negate the legal significance to written consent forms signed by the patient and render the
consent form complete unreliable”

Law protects guardian’s good faith decisions from judicial challenge (substituted judgment/consent)
Bonner v. Moran: when minor, consent of parents is necessary

Brophy v. New England Sinai Hospital: court allowed wife to cut off all nutrition over objections of treating
physicians-- he would have requested termination if competent

Lausier v. Pesinski: ct. said they didn’t have power to permit the removal of one of incompetent kidneys, even
though the risk of harm was slight, since sister opposed to operations.

Curran v. Bosze: court upheld right of mother of 3 ½ year old twins to consenting to bone marrow & not possible to
determine the intent of child

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Constitutional Rights to Life & Death
Cruzan v. Director, Missouri DoH: allowed comatose patient to be disconnected from life support on proof of clear
& convincing evidence that she would have adopted that course of action if present while still competent. Consistent
w/ this, ct. rejected right of voluntary euthanasia in light of state’s strong interest that is reflected in an unbroken
string of state criminal prohibitions.

Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach: claims of personal autonomy don’t
support constitutional right to compel the FDA to allow terminally ill cancer patients to use new therapies that
passed in Phase I clinical trials.

McPherson v. McPherson: ∆’s conduct was actionable if he intentionally misrepresented/failed to affirmatively

disclose his diseased condition to his wife.

True consent is informed consent

Canterbury v. Spence: Canterbury examined by Dr. Spence b/c of back pain, Dr. recommended operation. Mother
asked about the operation, he said “no more serious than any other surgery.” During operation, Dr. found spinal cord
was in poor condition, so relieved pressure. Dr. performed operation properly. Dr. told Canterbury was left alone,
fell, paralyzed.
- Dr. needs to give patient all the information so he can evaluate the options available & the risks, to make
informed decision
- Risk is material when reasonable person would likely attach significance to risk (1% risk of paralysis =
significant) & no evidence that ant’s emotional makeup was such that concealment of the risk of paralysis
was medically sound.
- Duty to disclose: Risks that a reasonable person would consider significant in decision-making re: whether
or not they should go through a medical procedure  “all risks potentially affecting the patient’s decision”
- 2 exceptions to disclosing: (1) patient is unconscious, or (2) disclosing risk will make so ill or emotionally
distraught that P won’t be able to make rational decision

Hannenmann v. Boyson: ∆ chiropractor charged w/ improper manipulation of ∆’s spinal cord & the failure to
disclose that chiropractic treatment carried a risk. Duty of informed consent which started w/ ordinary physicals,
now routinely imposed on other health care providers consent count was separate from the improper manipulation
count, & therefore requirement a separate submission to the jury.

Sidway v, Bethlem Royal Hospital: If patients can easily sue doctors for negligence then drs will become more
concerned for protecting themselves & treating their patients (BRITISH REJECTION FOR CANTERBURY)

Kozup v. Georgetown University: Parents of decedent brought informed consent claim against hospital in which
transfused P w/ blood contaminated w/ AIDS virus from which he died 3 years later. Ct. dismissed b/c AIDS risk
wasn’t material in 1983. Transfusions were necessary to save life. On appeal, ct. agreed consent count failed on
materiality but remanded case for new trial on alternative battery count noting that parental consent wasn’t obtained.

Acuna v. Turkish: π had kidney problems during pregnancy & a reasonable patient wouldn’t have receive
information necessary to make informed decision on abortion.

Twerski & Cohen: require managed care organization to disclose “comparative statistics,” which assess the relative
risks associated w/ individual’s providers who perform a particular producer

Person cannot give consent to unlawful act

Hudson v. Craft: π solicited by promoter to participate in illegal fight. π got hurt, sued promoter for assault &
battery.
- Promoter is liable b/c best way to deter illegal fights
- Majority/minority rule doesn’t actually matter b/c as a result, suit is against the promoter, who acted
illegally – puts the entire burden of risk on one party & one party alone  promoter. State thinks best way
to stop bare knuckle fight is to go after the promoter; between fighters = pari delicto

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Majority opinion (accepted by 25+ states): Even when both parties consent, treats person as not having consented &
allows suit (prevents ppl from doing illegal activities b/c of repercussions).
Minority opinion: consent is consent – can’t sue once you’ve consented
- Volenti Non Fit Injuria: both of you are wrongdoers so the law doesn’t care to help you
- Pari delicto: equal wrong  both parties doing something unlawful

Hart v. Geysel: π’s husband killed by a blow struck in illegal prizefight in which he consented to participate. Court
noted that both fighters violated criminal statute & it is not necessary to reward the one that got the worst of the
encounter at the expense of his more fortunate opponent.

Barton v. Bee Line Inc - 15-year-old girl consented to sex with an older gentleman. 15-year-old sued and the court
refused to let her recover saying at 15, she knew what she was doing

Christensen v. Royal School District- where a 13-year-old had relations with a teacher. The court allowed the action
because the girl was "too immature to rationally or legally consent".

Hackbart v. Cincinnati Bengals - A Bengals player hit the plaintiff with a blow that forced the plaintiff to retire.
There was intent to strike but not intent to injure. The 10th circuit court ruled that there are rules in the game of
football and this blow was unlawful. The victim of an unlawful blow is owed retaliation.

Nazbozny v Barnhill - plaintiff, a goalkeeper in soccer, sustained injuries when he was kicked in the head by an
opposing team's player. The contact could have easily been avoided. The game was under football association rules
where any contact with a goal keeper, whether intentional or unintentional, is illegal. The court held that a player is
liable for injury in a tort action if his conduct is such that it is either deliberate, willful, or with a reckless disregard
for the safety of the other players.

Turcotte v. Fell - Carelessness in sports does not constitute a legal action. All participants imply consent that they
may be injured due to another carelessness.

Marchetti v. Kalish - as long as children were engaging in some time of recreational or sports activity (whether that
activity is supervised or unsupervised or organized or unorganized) is a non-factor to the standard of liability.

Gentry v. Craycraft: 4 y/o struck in eye by nail that 11 y/o was hammering, resulting in serious injuries. Ohio
Supreme Ct. sustained summary judgment for D, noting that they’re involved in recreational activity for which
liability depended on proof of recklessness.

VI. Defenses

a. Insanity

Where an insane person does intentional damage to the person or property of another, he is liable for that damage in
the same circumstances in which a normal person would be liable
McGuire v. Almy: p was employed to take care of mentally insane ∆. ∆, while locked in her room, had a violent
attack. When π heard crashing of furniture, she called the maid. ∆ told π & maid if they enter room, she would kill
them. As π approached ∆ & tried to take ∆’s hand which held the leg of a low-boy, ∆ struck π’s head w/ it & caused
injuries. π sued for assault & battery.
- Even tho person is insane, if has intent to touch then liable
- Rejected argument that π consented/assumed risk as a matter of law
o Risk became “plain & obvious” after she entered the room, right before assault when an
emergency sufficient to deny voluntary consent had already been created
Policy: Insanity defenses in tort law do not matter as much compared to criminal law. In criminal law, the defendant
may be imprisoned; however, in tort law the defendant would only have to pay for damages. There are situations
where the insane person has the financial means to pay for damages. Tort law can also hold caretakers liable for the
damages caused by the insane person. Tort law also allows for fairness to the plaintiff so they can recover for
damages.

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Regarding Intent and Insanity: Insanity is about intent so the plaintiff has the burden of proof. This is part of the
plaintiff's prima facie case. On the exam, address it in the intent element.

(Professor Buccafuscco Office Hour response): IIED/False Imprisonment – require proof of intent of the
outcome. Question of whether ∆ had the requisite mental state to intend an outcome. Only matters if something
suggests they did not have the requisite mental states. Insanity is not a “thing” for torts outcomes!

Polmatier v. Russ: ∆ took 2 y/o daughter to FIL house where he killed the FIL w/ a beer bottle & a rifle. Ct. said ∆
was unfit to stand crim trial but responsible for intentional tort b/c no evidence of reflexive, convulsive or epileptic
acts. Although he couldn’t make rational choice, rational choice isn’t required since insane person may have intent
to invade interests of another, even though reasons & motives for forming intention may be irrational

b. Self-Defense

Courvoisier v. Raymond: ∆ was sleeping in his bed on second floor & jewelry store was on first floor. A few men
were trying to open door of store which woke ∆ up. In an effort to frighten parties, he chased them to a corner &
fired a shot in the air. π was alarmed by first shot & proceeded to towards ∆, telling ∆ he was an officer & to stop
shooting. When π approached ∆, ∆ shaded his eyes & fired, causing π gunshot wound.
 Self-defense/defense of another threshold: when there’s objectively believable relief there was an assault

Morris v. Platt: court held that accidental harming of an innocent bystander by force reasonably intended in self-
defense to repel attack from third-party isn’t actionable.

Brown v. Robishaw: π went to estranged wife’s home to finalize divorce; current bf there  altercation – boyfriend
(co-∆) pushed him down the stairs & caused injury
- Trial judge struck ∆’s plea of self-defense, but allowed plea of comparative negligence.
- Even if there was self-defense, ∆ may be liable for negligence if that self-defense overreacted to a threat

o Self-Defense is NOT a privilege to retaliate against people – whatever harm is done is over &
done w/. Now the option is of calling police, filing suit…can sue for battery. Law always wants to
give incentive to prevent additional violence.

c. Defense of Property

Someone trespassed onto your property even though you have a “no trespassing” sign on your property
a. Must first ask trespasser to leave
b. Can “gently” remove X from property
c. Can’t use deadly force simply for trespassing w/o any imminent threat

Bird v. Holbrook: ∆ rented & occupied walled garden where they grew tulips. In the past robbed off lowers & roots
worth 20 pounds. ∆ placed spring gun in garden. π had not seen them & that he had no notice of the spring gun &
the wires being there. π climbed fence & entered for innocent purpose. Heavy shot that caused severe wound above
the knee of π

Policy - The defendant claimed that the trap gun’s purpose was to protect property. The court's interest in preserving
human life trump the interest in preserving property.

Katko v. Briney: Brineys stored antiques in old home which was repeatedly broken into and trashed. ∆ set up a
shotgun trap (set to hit intruder in stomach, then lowered to hit legs). π was shot upon entering ∆’s bedroom in legs
and permanently injured. He also sued the defendant for personal injuries and was awarded 20k in actual damages
and 10k in punitive damages. Iowa Supreme Court affirmed judgment.

M’Ilvoy v. Cochran: ∆ shot and severely wounded P (who was tearing down fence on D’s land)— Court rejected
D’s plea that wounding was justified in defense of property.

Rule: There must be a request of the trespass to the trespasser to leave before he can lay hands on him.

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Recapture of Chattels:
Kirby v. Foster: ∆ handed π some money to pay the help; π kept the money ∆ took from pay and returned rest and
attempted to leave (as advised by Counsel). ∆ seized π and π sued for damages from struggle. Court rejected ∆’s
defense
- “If one has entrusted his property to another, who afterwards, honestly though erroneously, claims it as his
own, the owner has no right to retake it by personal force”

d. Necessity

Necessity will justify entries upon land & interferences w/ personal property that would otherwise have been
trespass
Ploof v. Putnam: π were sailing w/ wife & kids. Sudden storm & they were forced on ∆’s dock, who was an owner
of a certain island in Lake Champlain. ∆’s butler undocked them resulting to harm of person & boat.
- Rightful owner of property: had right to “defend self” but life > property so they had privilege to allow
family to moor the boat
Policy: π’s interest in case is their lives  ∆’s interest in the case was the enjoyment of property. By court’s ruling,
they are saying lives are more important than property.

General Average Contribution

- Mouse’s Case— “in a case of necessity, of the saving of the lives of the passengers, it was lawful for the
defendant, being a passenger, to case the casket of the plaintiff out of the barge, with other things in it”
- Pro rata compensation to those whose items are discarded— minimize aggregate loss to all concerned

Judith Jarvis Thomason, the Trolley Problem (1985)

- Mrs. Froot’s Problem: Why is it that the trolley drive may turn his trolley, though the surgeon may not
remove the young man’s lungs, kidneys, and heart
o both cases: one will die if the agent acts but five will live who would otherwise die—net saving of
four lives.
o What difference in the other facts of these case explains the moral difference in the other facts of
these case explains the moral difference between them?
- Morally, it is worse to kill than to let die, the surgeon should bot act while the trolley drive can turn the
wheel because his only choice is between killing one and killing five
- Incentives: minimize number of deaths once the emergency occurs; and check the brakes to prevent the
emergency from arising in the first place
o liability rule remains fixed to hold the drive responsible in tort for whatever harm he cause—we
can expect fewer brake failures

A party who damages the property of another while acting out of private necessity must compensate the property
owner for the resulting damage
Vincent v. Lake Erie Transportation Co.: R – boat owned by ∆ - unloading goods at π’s wharf. Severe storm made
it probable that boat would drift off so master kept it moored & replaced w/ lines. Wharf damaged by repeated
bumping of boat, causing π to sue for damages.
- Pay property owner b/c:
o Although boat owner has privilege to use property, incomplete or qualified
o If cause damages, you may ask for reasonable damages
o Could’ve reached contractual agreement but if there were, it would probably be similar: use dock
but pay for harms caused—replicated here—most efficient solution. This ruling might be fairer
than a contract. Landowner has opportunity to charge a high price since the other party might due.
This ruling ensures fair terms.
- Rules produce opportunity to avoid bargaining contracts where one party receives all benefits at the benefit
of neither
- Compare to Putnam: not every ship owner can make contracts w/ every dock owner in an event of a sudden
storm that it is not feasible. It’s important for tort law to adopt a rule governing ship collisions w/ decks to
create the correct incentives for safe ship driving.

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 VII. Damages

3 types of damages:
1. Punitive (Alcorn v. Mitchell; spitting case)
a. Punish D b/c D did something maliciously
b. Rare to get
2. Nominal (Doughterty v. Stepp – trespass)
a. To make a point that something is bad
b. Is this situation as nominal as Stepp?
c. Give when no physical harm done
3. Compensatory (Vosburg v. Putney)
a. P is compensated $ for his costs that are from the tort
b. P is going to ask for as much $ as he can get (attny & medical fees)

Harmful battery (physical injury)  compensatory

Offensive battery (dignity harm, not physical harm)  punitive or damages
Assault  punitive, and maybe compensatory if ongoing physiology issues (Allen v. Hannaford)
Trespass to property (no damage to property)  nominal
Trespass to property (damage to property)  compensatory
False imprisonment could be  compensatory (Coblyn v. Kennedy’s) (missed work) or punitive

B. STRICT LIABILITY

- Holds D prima facie liable for any harm that he causes to P’s person or property

When a person either negligently or inadvertently, against his will, causes damages to the property of another, he is
liable for the damages caused.
The Thorns Case: ∆ was cutting thorns on his land, when the thorns fell on π’s property, against ∆’s will. ∆ went
onto π’s property to take off thorns. π sued for trespass & damages of trampling of grass that ∆’s trespassing caused.

If ∆ was acting w/ ordinary reasonable care & hurt π, ∆ is not liable

Brown v. Kendall: π & ∆ dogs were fighting. ∆ took stick to separate dogs & in the process hit π in the eye, causing
severe injury.
- Ordinary care: the kind of degree & care which prudent & cautious men would sue;
o Such as is required by the exigency of the case & such as is necessary to guard against probable
danger
- ∆’s act was voluntary but was not intentional so not a battery b/c not the way we understand battery
- π needs to prove ∆ didn’t use ordinary care (this is the standard)
- To test reasonability:
o Nature of the environment  was it intense or not?
 Time to react based on risk involved
 Example: park v. hwy
o Were people around?
 If ∆ didn’t stop dogs conduct, could harm others
- Defenses for ∆:
o ∆’s act was necessary
o Was an act of God
o π’s contributory negligence caused the harm

If a person, who for his own purposes, brings something on his land that if it escapes could do harm, he is liable for
all resulting damages
Fletcher v. Rylands: ∆ built reservoir on land to supply water to his mill. Water flooded π’s coal mines & damaged.
o 1865 – Reasoning by Bramwell – strict liability
 Reservoir was artificial b/c ∆ had it built  if water was natural (like rain), then it’s on π
to protect himself/his land form it. But if the water is foreign (not natural), then π should
not have to protect himself from it

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  π had right to be free from damage  doesn’t matter if ∆ didn’t intend for water to flow
into the mines. If ∆ didn’t build reservoir, damage would never cause π’s property to be
damaged. ∆ is liable for all consequences if he does any harm = strict liability
o 1865 – Reasoning by Martin – negligence standard
 ∆’s duty isn’t strictly liable but instead it’s based on negligence. ∆ didn’t act w/
negligence so ∆ is not liable. Hold innkeepers & common carriers to a strict standard
(exception) so for everyone else, we must have a lower standard
o 1866 – Reasoning by Blackburn – if a person, who for his own purposes, brings something on
his land that if it escapes could do harm, he is liable for all resulting damages
 Defenses: ∆ can show that person suffering harm is at fault or that damage was caused by
act of God
 For personal property, there is a reciprocal risk between each other (ex: both driving
dangerously on highway)
 For real property – not reciprocal b/c right to use one’s own land doesn’t affect
another the same way
o Once you go into the world & leave your property, you accept that
other people may hurt you and you may hurt other people
o When you’re on your own property, it’s not the same risk/acceptance of
harm
o Reasoning by Carins
 Distinguishes between natural & non-natural uses of the property
 For natural use, only liable for negligence
 For non-natural use, liable for strict liability
o If valuable enough for ∆ to do the act (ex: reservoir), then act should be
valuable enough for ∆ to pay for it

Negligence is required for strict liability

Brown v. Collins: ∆’s horse got crazy & hit π’s pole on property. ∆ isn’t liable b/c he wasn’t negligent.
- Not responsible for unforeseeable horse actions

Holmes
- Liability is based on fault that relates to the foreseeability risk of harm of the person’s act
o Thorn’s Case: ∆ is liable b/c its reasonably foreseeable that cutting thorns will cause them to fall
on π’s (neighbors) property
- Strict liability is not a good standard b/c it holds people liable for any act that’s harmful. Only way not to
be liable is not to act. We want people to grow economy, so we need fault based liability
- Gibbons v. Pepper: no battery when man’s horse was frightened by accident/third party & ran away w/
him, injuring π
o Takes distinction that if rider is the cause of the accident, then he’s guilty

If the risk is foreseeable then ∆ is responsible for preventing the risk (fault-based injury)
Stone v. Boton: Stone was walking & hit on the head by a ball coming from cricket ground. Cricket ground had
fence but there were still 6-10 balls that flew out of cricket court over 30-year period. π sued ∆ & all of its members.
- ∆ is liable b/c risk that ball would fly out was foreseeable b/c it happened before & ∆ didn’t do anything to
prevent it.
- In a strict liability world, if you caused harm = liable; foreseeability doesn’t matter

The seriousness of the risk was great, but because the probability was low, the ∆ did not have a duty to prevent the
risk
Bolton v. Stone (∆ appeals):
- Negligence is based on foreseeability of risks & what a reasonable person would do
- ∆ has a duty to prevent foreseeable risks when a reasonable person would prevent those risks. Here, risk
was foreseeable but reasonable person wouldn’t take precautions b/c of low probability of accident
occurring again.
o Hands-like formula: need to see if prevention of risk is cost justified (if prevention isn’t cost
justified, then reasonable person would take precautions)

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 - Balancing test to determine whether ∆ has duty:
1. Likelihood of risk happening (person being hit by ball) and
2. Seriousness/magnitude of risk of danger if it happens

At common law, landowner owes a different duty dependent on type of person on property  law classifies these as
invitees, licensees, & trespassers. Since child was a mere trespasser, no duty to protect him
Addie & Sons, Ltd. V. Dumbreck: ∆ had haulage system near private road, land made it impossible to keep little
children away from wheel. ∆’s servants warned children to stay off property but they knew warnings had no effect.
Sign said trespassers would be prosecuted. π got caught in mechanism & died.
- 3 categories for persons on property (highest duty owed to lowest):
o Invitees: people who have mutual interest  A must be on the land b/c A & landowner have
mutual business interest
 Have invitation - implied by landowner
 Landowner has duty to take reasonable care to ensure his land is safe
 Public officials (policemen, mailmen, etc.) treated as implied invitees (business visitors)
– landowner has duty to keep access routes to his house reasonably safe
o Licensees: social guests (expressed invitation) & implied licensees (even though they didn’t get
welcome to come on land, owner still knows they’re there)
 Landowner didn’t invite A, & A doesn’t have interest in being there but landowner
expressly permitted/has knowledge that A is on land (landowner gave permission or
didn’t show any acts to stop A)
 Landowner has no duty to ensure land is safe but he’ll be liable if there are any traps or
concealed dangers which are not apparent to the visitor but were known/should be known
to the landowner.
 If you have something dangerous but not concealed & its visible to visitors,
landowner doesn’t have duty to warn guests (even if reasonable people would
warn against it)
o Trespasser: no permission to be on the land & owner doesn’t know ∆ is there  if landowner
knew, he would object
 Landowner has no duty to take reasonable care or protect trespasser from concealed
danger
 Landowner is only liable when:
 Injury is b/c of landowner’s willful act involving more than the absence of
reasonable care
 Deliberate intention of doing harm to trespasser
 Reckless disregard of the trespasser

- Attractive nuisance doctrine: allows “infant” trespassers to recover when lured onto ∆’s premises by
some tempting condition created & maintained by ∆, such as railway turntable, explosives, electrical
conduits, etc.
o Exception: rivers, creeks, pond, etc.
o Landowner can be liable for artificial conditions of property
o ∆ is liable if:
 He knew or should have known nuisance was there
 π can’t know or understand the risks to recover
 If landowner didn’t use reasonable care to prevent accidents from artificial condition,
when ordinary person would prevent

Excelsior Wire Rope Co., Ltd. v. Callan: distinguish from Addie b/c D’s servants acted in reckless disregard of P’s
welfare. Field was constantly swarming w children who left playground to play games on D’s machinery. D’s
servants acted reckless b/c they started machinery without being clear that wire was free from children. D was in
breach b/c it was well known to them that machine was going to start when children would be there & expose them
to grave danger.

Goud v. DeBeve: P fell out window. D was guilty of willful & wanton misconduct in ignoring statutory obligation to
replace defective screen after receiving urgent requests from Dodds to do so.

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Twist v. Winona & St. Peter R.R: There’s no limit to what’s attractive to a curiosity average boy. If owners of
property are to be required to guard against it, it would be unsafe for man to own property.

Sioux City & Pacific R.R. v. Stout: Court allowed 6 y/o to recover when food caught between fixed rail of roadbed &
turning rail of turntable when playing w/ friend. If a reasonable person would’ve ordinary care & D didn’t then find
for P.

Maalouf v. Swiss Confederation: 12 y/o injured in sledding accident when sled struck guy wire that was used to prop
tree. P was a trespasser but attractive nuisance theory applies: nuisance was artificial, relevant element is not what
attracts child but rather nuisance itself.

Holland v. Baltimore & Ohio R.R: D obtained judgment against 9 y/o who was injured while jumping trains b/c P
could appreciate dangers of the risk.

Merrill v. Central Maine Power Co: 9 y/o couldn’t recover when he climbed over fence surrounding D’s electrical
power. SEE REASONING ABOVE.

Carmona v. Hagerman Irrigation Co: P won when 2 y/o drowned--even though impossible to make irrigation ditch
inaccessible to trespassing children, irrigations are excluded from attractive nuisance doctrine.

Kellser v. Mortenson: homebodies & landowners will be encouraged to minimize or eliminate dangers that
trespassing kids may be exposed to on site

Ben v. Stanley: P won. swimming pool left unused for three years filled w/ 6 ft of rain & covered in algae could –
attractive nuisance to 5 y/o

Lemon v. Busey: 5 y/o brought to D church by grandmother who was PT employee. Court said she was licensee &
denied recovery after girl fell to her death from a roof.

Post v. Lunney: P paid for public tour of D home. P treated as invitee when she tripped on a piece of transparent
vinyl on a tour of D home.

Mounsey v. Elland: D owe duty to keep route of access to premises in reasonably safe condition to implied invitees
(police, mail, trash)

If occupier is aware of a concealed condition involving an unreasonable risk of harm & is aware that a person on
their property is about to come in contact w/ the concealed danger & doesn’t warn person or repair the condition,
then landowner is liable for negligence
Rowland v. Christian: ∆ invited π over, π is in bathroom & porcelain handle on water faucet broke & severely
injured his hand.
- Landowner owes a duty of care to everyone on property 
o ∆’s failure to warn π of danger = departure from level of care a reasonable person would exercise
under the circumstances
o Rejects the common law general rule
- APPLY IN CALIFORNIA & NY – if not listed, apply how both would come out

C. NEGLIGENCE

3 elements of negligence (for π’s prima facie case):

1. Duty: did ∆ owe π a duty to conform his conduct to a standard necessary to avoid an unreasonable risk
of harm to others?
a. Typically, fault/negligent based
2. Breach: did ∆’s conduct, whether by way of act or omission, fall below the applicable standard of
care?

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 3. Causation: did ∆’s breach of duty cause an injury?
a. Cause-In-Fact (But For)
b. Proximate Cause
- Majority of courts refuse to apply adult standard of care when juvenile injures another w/ firearm.
o But, if minor does an adult act, they’ll be held to an adult standard.
- Child under 5 is incapable of negligence.

Reasonable person standard is objective; it doesn’t matter what π thought/intended – only matters what reasonable
person in ∆’s circumstances would have done
Vaughan v. Menlove: π owned 2 cottages. ∆ had rick on property near π’s cottages which caught on fire &
destroyed π’s cottages. ∆ was constantly warned about possible fire & was advised against leaving rick on property
but didn’t prevent it at all & said he’d take the risk instead.
- To decide if ∆ is liable, must ask:
o Did ∆ owe a duty to π?
o Did ∆ breach the duty owed?
- Duty is measured by an objective standard requiring ordinary, reasonable prudence
- Jury has to decide what a reasonable person in the same/similar circumstances would have done

Holmes: The Common Law

- Court has to & does hold the same standard for every person
o Exception: if a man has a defect that everyone agrees on & that person can therefore not recognize
precautions, then he is not held liable
 Ex: a blind person isn’t required to see like an ordinary person is expected to
 Standard is still objective, but it is objective relative to similarly situated people
 Awkward/defective person can still be liable  acts are measured to what is
reasonable for people that are similar to them

Exception to general rule: if you have a known defect, you’re held to a higher standard than a reasonable person
b/c you have to take extra precautions to exercise extraordinary care
Roberts v. Ring: ∆, 77 y/o, was driving 4-5 mph. π, 7 y/o, ran from behind from a buggy/bus(?) & ∆ hit him. ∆’s
seeing & hearing were defective. π sued ∆ for negligence.
- Either ∆ didn’t see π & should have, or ∆ saw π & ∆ didn’t stop  either is unreasonable

When a minor engages in adult activities, he is held to an adult standard

Daniel v. Evans: π, 19 y/o, rode a motorcycle & got into an accident w/ ∆.
- π held to adult standard b/c driving a vehicle can cause harm so he is held to the same safety precautions as
an adult b/c not appropriate to lower standards
- Need license to drive & driving is dangerous  needing license for dangerous activity so apply adult
standard
o Not all licenses constitute adult activities – license is not always about an activity that is
dangerous
 Ex: you need a license to fish & hunt, but not held under adult standard

- Hudson-Connor v. Putney: Driving golf cart on private property wasn’t adult activity.
- Goss v. Allen: 17 y/o skier held to standard appropriate to youths of same age b/c don’t need license to ski.
- Dellwo v. Pearson: 12 y/o D was held to adult standard of care in operation of speed boat even though no
licensing statute for such boats.
- Harrelson v. Whitehead: 15 y/o operating motorcycle was held to adult standard of care on issue of
contributory negligence
- Jackson v. McCuiston: 13 y/o farm boy should be judged by adult standard of care in operating tractor-
propelled stalk cutter
- Purtle v. Shelton: ct refused to hold 17 y/o to adult standard in the use of dangerous firearms. Held that
lower standard of care for minors was appropriate b/c deer hunting wasn’t exclusively adult activity.

Insanity can be a defense if ∆ shows that due to her mental delusion, she doesn’t understand the nature of her
behavior, & she was not warned of her delusion or can’t control her behavior

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Breunig v. American Family Insurance Co.: “I believe I can fly!”
- π was held to ordinary standard of care b/c π was not considered insane  she knew of her condition (had
prior warnings and a history of mental illness)
- Use case for insanity in necessity **

- Courts tend to exonerate ∆’s for injuries resulting from sudden incapacitation or loss of consciousness
resulting from physical injury but hold liable if sudden & unforeseen incapacitation is due to mental
illness

- Ramey v. Knorr: D Knorr turned car around & rammed into P in attempt to commit suicide. Defense of
sudden mental incapacity was rejected b/c record showed that in 1994, Knorr had mental breakdown – she
knew
- Gould v. American Family Mutual Insurance: ct refused to apply Breunig. A person institutionalized w/
mental disability and who doesn’t have capacity to control or appreciate his conduct can’t be liable for
injuries caused to caretakers who are employed for financial compensation
- Jankee v. Clark County: Ct refused to impose liability on institution that had not restrained P (mental
patient) who injured himself while trying to escape by jumping through window. Prosser held insane P to
objective standard of care to minimize level of institutionalization required of insane people.
- Creasy v Rusk: ct denied liability to caregiver who was injured by institutionalized patient. P wasn’t
member of public at large, unable to anticipate or safeguard against harm she encountered. Could’ve
changed her course or action or requested additional assistance
- Berberian v Lynn: court held that mentally disabled patient doesn’t owe his caregiver a duty of care.

D. CALCULUS OF RISK

- Adopts the language of costs & benefits

When a person takes precautions that conform to the standards that reasonable people use, they are not liable (in
negligence)
Blyth v. Birmingham Water Works: ∆ owned water works & was in charge of laying water mains in streets. Large
body of water escaped from ∆’s main & went into π’s house. On night of accident, city experienced severest frost on
record so when ice & snow was around stopper, ∆ removed ice after incident occurred.
- Negligence: omission to do something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs would do, or something which a prudent & reasonable man
would not do.
o ∆ will be negligent by falling below the standards of the ordinary reasonable person in his/her
situation  by doing something which the reasonable man would not do or failing to do
something which a reasonable man would do
o ∆ here is not negligent b/c followed precautions that reasonable man would take  risk was so
low that taking the precaution wasn’t worth it.

A person who knowingly & voluntarily places himself in a position to receive a serious injury is negligent, but when
the action is for the purpose of saving life, it is not wrongful or negligent
Eckert v. Long Island R.R.: π was killed by ∆ train. π was standing 50 ft from ∆’s track when train was traveling
btwn 12-20 mph. π says 3-4 y/o child sitting on tracks & would be run over if not removed so he moved child, was
struck himself, & died.
- Negligence consists of some act that is wrongful in itself – meaning it’s inappropriate for a person to do 
but not the case here since he saved a life
- Policy: the law has a high regard for human life & it will not impute negligence on an effort to preserve it,
unless made under rash & reckless circumstances
o Unreasonable (rash & reckless) reasons would be to save property, just to play on tracks for no
reason, if you try to save child knowing you’ll die too, if child wasn’t in harm’s way, etc.

Since ∆’s duty can’t be extended to everyone, ∆ must make a choice  when there’s a more serious risk to A
(obvious & immediate risk) & a less serious risk to B (remote risk), ∆ has greater interest in protecting A over B

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Cooley v. Public Service Co.: telephone company maintained cable that conformed to standard practices. A mile
from π’s house, two of ∆’s lines crossed & weren’t insulated. Heavy storm, wires fell, came in contact w/ phone
messenger & while π was on phone, there was loud explosion. π fell to floor & suffered traumatic neurosis.
- π suggests to put baskets for wires but court said this would entail greater risk of electrocution to people
passing on street  must balance two risks btwn A & B
o ∆’s duty is obviously weaker to π than the man on street about to be electrocuted.
- Choose the behavior that most reduces the cost of accidents
- If this was strict liability, ∆ would be liable

If the burden of taking precautions is less than the probability multiplied by the loss, then taking the precaution is
reasonable (HAND’S FORMULA: B < PL)
United States v. Carroll Towing Co.: Connors (π) owned barge ‘Anna C’ carrying flour for the US. Connors hired
Carroll (∆) to tow barge. Employee was employed to watch barge but left to go ashore. Carroll’s tug boat attempted
trick maneuver, failed & punctured hole in Anna C which drowned.
- Definitions:
o Loss: the sort of harms that burden might reasonably foreseeably prevent
o Probability: probability that accident would happen
- Carroll said π was contributory negligent b/c employee was absent from barge at the time of accident. But,
no general rule for barges to be on boat.
- If B > PL, then it would be reasonable to not take precaution  no reasonable person would take the
precaution to get B when B is greater than PL b/c some precautions aren’t worth it
o The party whose “B” is smaller is the one who bears the duty – the party that can most cheaply
avoid the accident
- Hand’s formula: ppl can conduct their own cost benefit analysis to determine what kind of care to take 
does burden outweigh the harm?
o Assume that taking precaution reduces risk of 2% to 0%
 Subtract risk w/o bargee to risk w/ bargee
 What benefit does bargee get you?
o Takes risk from something to nothing? Might decrease risk? Might
reduce extent of the loss (L), reduce probability?

E. CUSTOM

- Courts try to understand ordinary reasonable care by referencing customary practice by people in that
position. Practice consistent w/ custom must necessarily be reasonable.
- Two types of negligence:
o Reasonable care & negligence is constituted by actual experience
o Reasonable care is not what people actually do, but what the abstract reasonable person in exactly
∆’s circumstances should have done
- Customs should play a strong role when parties are in contract w/ each other, but custom should have less
weight when parties are strangers
- General custom/practice isn’t the only test  must decide whether ∆ acted w/ reasonable care
- Hand’s view: sees reasonable care & negligence as being potentially constituted by actual normative
experience
o Reasonable care is what abstract reasonable person in exactly ∆’s circumstances should’ve done
 If risk-benefit considerations & customs point in same direction, there is no conflict
 When they conflict, jury makes informed choice between outcomes dictated by
competing conceptions.
o Evaluate costs first, then custom.

Just b/c something is the custom/average practice does not indicate that it is ordinary reasonable care
Mayhew v. Sullivan Mining Co.: π was hired by ∆ to trace veins of new ore. π worked in mine shaft, ∆ caused a 3ft
hole to be cut for ladder near place π ordinarily used w/ no rail, barrier, light, or warnings. π didn’t know of its
existence & fell. At trial, ∆ had expert testify that warnings/signs were not custom in such mines.
- Court did not use custom in decision  custom isn’t controlling & the idea of custom isn’t relevant b/c it’s
a dumb idea not to warn of hole

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 - Need to see if ∆ is using custom as a shield (complied w/ custom, so I should be safe) & π is using
custom as a sword (∆ may have complied w/ custom but it’s not reasonable)

T.J. Hooper cases: operator of tug boats was sued under towing contract when 2 barges & cargo was lost off coast
while in transit. Neither tug had reliable radios that would have allowed them to receive storm warning broadcasts
by naval stations b/c four other tugs were on the same route, received message (through radio) & pulled into safety
- Although radios were equipped throughout industry & this was custom, they were using it to listen to the
radio  didn’t use it b/c they thought it was important for safety – just used it for fun
- Custom’s that don’t have to do w/ reasonable care are not legally sufficient
- Reasonable prudence is not always common prudence
- Can use custom as a sword  there’s a custom to have radios, you just didn’t do it or as a shield, not a
custom to have radios (∆ complied w/ custom & behavior is reasonable)

Bimberg v. Northern Pacific Ry: wrongful death action brought under Federal Employers’ Liability Act – D argued
designing trestle was an engineering problem for solution by RR & not by courts, but court took diff view of subject
→ local usage & general custom will not justify or excuse negligence.

Fonda v. St. Paul City: P, injured pedestrian, sued D for negligence of its servant in the operation of train. P was
stranger to D so his conduct could not have been in any way affected or influenced by rules of which he had no
knowledge.
- The more cautious & careful a man is in adoption rules of his business in order to protect others, the worse
he is off & the higher degree of care he’s bound to exercise.

Lucy Webb Hayes National Training School v. Perotti: P was admitted to D psychiatric hospital. P ran past nurses,
jumped through a window, and died. Court held that jury could reasonably conclude hospital’s failure to observe
standards it had itself established negligence, and nurses didn't try to restrict D movement when they could have

Trimarco v. Klien: P was injured when he slipped in bathroom & received lacerations from crashing against shower
door made of glass. Glass was made w/ 1950’s standard but not out of common practice to use tempered glass. P
didn’t know ordinary glass was used in his shower → Ct of Appeals allowed evidence of custom b/c reflected judgment
& experience & conduct of many but it didn’t have conclusive weight.
- Up to jury to decide whether the cost and availability of the safety glass and the new custom changed what
used to be considered reasonably safe glass?

Reference Canterbury v. Spence → if doctors are allowed to set their own standards of care, they would set super low
standards. So courts are skeptical of custom.
- One place where universal standard of care → medical malpractice

F. STATUTE & REGULATIONS

- Breach of statute is negligence per se; statute sets the standard of care for us
o Courts will treat statute as setting the standard of care
o Even when statute supports a negligence action, π needs to show that he falls within
protected persons under that statute
- Suing under statute: make sure this is the part of class of people the statute aims to protect; make sure
statute is trying to protect against the invasion of this kind of interest & the harm that occurs is what is
meant to be protected by the statute
- 3 possible functions of statute in tort action:
o Statute can create private right of action by providing that individual injured by violation of statute
can sue offender
o π can bring common law negligence suit for his or her injuries  here, ∆’s violation of statute can
= “negligence per se”
o Even if ∆’s statutory violation doesn’t = negligence per se, π can still argue that ∆’s underlying
conduct was negligent
- Even where statute supports a negligence action, π must show that she falls within the class of
protected individuals  often achieved when single statute is found to serve several purposes

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 - Jury is bound to use test of ordinary prudent man  can’t acquit ∆ of negligence w/o saying that
ordinary prudent man would have left horse unhitched under such circumstances; ordinary prudent man
would have foreseen no danger to others
o The foresight of the prudent man in ∆’s position is the test of negligence
- General rule is violation of relevant statute  π wins on SJ
- If ∆ doesn’t violate statute, look to customs to try & prove that ∆ violated custom, or we look at equation,
or what is reasonable care
- If statute doesn’t work, turn to custom. Don’t just throw the case away
- 2 types of statutes:
o Statute that says something you have to do & a breach makes you civilly liable
o Statutes that have the effect of what reasonable care means
- Policy  existence of statute makes it obvious that this is an important issue b/c Legislature thought about
it before

Ezra Ripley Thayer, Public Wrong, and Private Action→ P injured by D’s runaway horse. D left the horse unhitched,
so P sued for negligence.
- To determine if D was negligence, jury needed to use ordinary prudent man test-- needed to look at the
probability of danger from D standpoint.
o Reasonableness of D conduct depended on (1) the circumstances and (2) the inferences drawn from
them
o Can’t acquit D of negligence w/o saying that ordinary prudent man would have left horse unhitched
under such circumstances; ordinary prudent man would have foreseen no danger to others – the
foresight of the prudent man in D’s position is the test of negligence

Schmitz v. Canadian Pacific Ry. Co.: P was inspector who fell into a hole along tracks when D didn’t clear away
vegetation as required by federal regulation. Judge didn’t instruct jury on mandatory regulation, and COA reversed.
- RR was required under federal law to keep vegetation trimmed → jury should only decide whether RR
violated regulation & whether violation was cause of S’s injury

Clinkscales v. Carver: highway driver didn’t stop at stop sign

- There was a defective statute, so court could not criminally enforce its laws. But, driver still guilty of
negligence because any reasonable person should know to stop at a stop sign.

Hammond v. International Harvester: D manufactured skid load tractor that wasn’t equipped w/ rollover protective
structure & side screens that could’ve prevented driver from falling off operator's seat.
- To show tractor was faulty designed, court allowed P to introduce OSHA regulations that took effect AFTER
manufacture of this vehicle, requiring a removable ROPS for tractors with low clearance.
- Later enacted statute can be admitted as evidence in negligence determination depends on length of
time btwn conduct & new statutes enactment.. BUT D is NOT negligent here because negligence per se cant
be based upon subsequently enacted statutes (unfair results)

When a statute imposes on any person a specific duty for the protection or benefit of others, & that person breaches
that duty, ∆ is liable for the resulting harm
Osborne v. McMasters: ∆’s clerk in drugstore sold π deadly poison w/o labeling it as poison as required by the
statute. π drank poison & died.
- Nature of ∆’s duty is to take reasonable precautions; behave as ordinary reasonable person would. Purpose
of statute is to protect the public
- Even though statute was for criminal cause of action, ∆ is liable b/c breached duty of reasonable care

Martin v. Herzog: Violation of the statue, and breached of an owed duty is= to a prima facia case because of causation.
Breach of a duty doesn’t necessary mean it caused P harm, so don’t stop at breach when there is a violation of a statute,
need causation as well!!
Stimpson v. Wellington Service Corp.: D drove the city streets without a needed statutory permit. Weight of D truck
broke pipes in P building, flooding it.
- Court found statute has dual purposes- to protect people from overloaded vehicles

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 - Failure to apply for a permit meant D didn’t have the opportunity to assess the risks, probabilities, and refuse
the permit or impose precautions

Burnett v. Imerys Marble, Inc.: P (employee of Thurel Mason Trucking) fell off top of truck. Argued that truck was
unsafe b/c fail to comply w/ federal regulations in Fed. Mine Safety & Health Act whose FIRST PRIORITY – protect
miner
- P not protected because (1) wasn’t a miner – not individual working within mine AND (2) the Act protect
against hazards associated w/ mining, and B’s accident was not mining hazard but hazard as job of
commercial trucker.

Gorris v. Scott: P used D to shipped sheep. D failed to pen them in accordance w/ requirements of Act. Animals were
washed overboard in storm & lost by reason of neglect to comply w/ administrative orders issued by statute → when
we have a statute that’s out to protect a particular loss & legislature has decided that some given burden is
appropriate for some BxL, the statute will only apply for the B & L it’s meant to protect.
- The object of sheep owners was to protect sheep from being exposed to disease, not protect against them
being washed aboard. Since P isn’t apart of protective category under statute → so P can’t recover.
- A statute that protects a specific L, and there a specific B that is appropriate to prevent PxL → DOESN’T
mean B is appropriate for a different L
o Since statute isn’t applicable, look to custom.

Kernan v. American Dredging Co.: seaman’s wife died when the lamp on the dock caught fire.
- Coast Guard regulations are focused on preventing collisions, not fires, but court allowed P to recover. Court
found if the lamp was at the Act’s required height, there wouldn’t have been a fire.

Abrahams v. Youngs & Rubicam

- 2 types of negligence:
o Common law → if P falls into category which is foreseeable and there’s no requirement that the risk
of injury to P is what made D’s act wrongful
o Statutory claims → the issue is intent-- was P in the category that the statute meant to protect, and
was the harm the mischief the statute is trying to avoid

Michaels v. Avitech: a plane crashed and killed its passengers.

- Not having a license is usually an exception to the general rule that the violation of safety regulation or statute
is negligence. A reason can be that a license may not be renewed for a reason that doesn’t related to the
operator’s lack of skill

Talley v. Danek Med: Dr. used a device made by D that failed when the screws came out. P claimed that FDA didn’t
approve the device for general use, so Dr. violated FDA, and was therefore negligent
- When a statutory requirement doesn’t articulate a standard of care, but only required regulatory
approval or a license → violation of the requirement is NOT a breach of standard of care, it’s only a
breach of that requirement
- Need to determine whether Danek’s alleged violation of the statute breached the administration requirement
or breached the standard of care, and if that breach caused Talley’s injury?
o Breach is similar to failure to have a driver’s license

Brown v. Shyne: D chiropractor had no license to practice med but operated on P’s spine & led to P’s paralysis. Court
said unless P’s injury was caused by carelessness or lack of skill, D’s failure to obtain license wasn’t connected
w/ injury. If D lives up to standard of care, it’s immaterial whether he had a license or not. Lack of license is
unrelated to injury.
- Statute was intended to provide against risk of injury by unskilled/careless practitioners.
- You can practice medicine reasonably even if you don’t have a license. D’s lack of license does not mean
it’s related/caused P’s injury.

G. PLAINTIFF’S CONDUCT

- End of prima facie case  ∆ should raise affirmative defenses to negate π’s prima facie case

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 - MUST:
o Establish duty
o Establish that duty was breached
o Establish that because of the breach, π was harmed (causation)
- 3 options of recovery: π either recovers nothing, something, or fully for injury

a. Contributory Negligence

- Established when π has not taken reasonable care & in consequence of her default has suffered injury
o Generally, π’s negligence bars her from any recovery from ∆, despite ∆’s negligence
o Only get to contributory negligence if ∆’s conduct was A cause of π’s injury, doesn’t need to be
THE cause
- π only has the burden to prove that ∆ acted wrongly, that ∆ has the burden of proving why he is not wrong.
Only if ∆ can’t prove that he is not wrong does he argue that π was contributorily negligent.
- Policy: Violates principles of justice and equity b/c if π is slight degree of negligent then he is barred from
recovery, and ∆ is completely free, fault doesn’t match outcome, jury nullification (juries would allow π to
recover by saying π wasn’t negligent, even when π was negligent), detracts from public confidence in ability
to assign liability, extent of liability governs the extent of fault (unlike comparative)

Since π failed to use ordinary reasonable care w/ respect to himself, he cannot recover against ∆.
Butterfield v. Forrester: ∆ put up pole on side of road when making repairs to his house. π was riding violently,
didn’t observe the pole, fell of his horse, & got injured.
- P breached a duty to himself b/c he was riding violently  if π acted w/ ordinary reasonable care π would
not have been injured b/c π would have seen pole in street & would have avoided it
- Policy – want to deter π from acting negligently, so by π not being able to recover it will only deter him
from acting negligently in the future. We still accept ∆ will act reasonably b/c ∆ only wins if π is CN, but
normally ∆ doesn’t know if π will be CN.
- Pari delicto: equal wrong  no right should come from a wrong

Even if there is evidence that π was negligent, if he didn’t cause π’s harm, then ∆ doesn’t win on CN
Gyerman v. United States Line Co.: π was injured unloading fishmeal sacks that was brought to ∆’s warehouse. π
assigned to unloading sacks & noted they weren’t properly arranged. He went to the clerk (but not own manager like
in said contract) to say it was dangerous but they said nothing could be done.
- ∆ owed himself a duty of care b/c contract he signed stipulated he must take steps on his own, like talking
to a supervisor.
- π breached his duty & was negligent but the causation element failed b/c π’s breach didn’t contribute to his
injury
- Duty & breach elements were met, but causation was not met
o The contract is influencing the standard of care π owes to himself. π breached duty b/c he didn’t
stop working to notify supervisor. Even though π breached duty to himself, ∆’s affirmative
defense fails b/c there was no evidence that the situation would have been dealt with.

Koenig v. Patrick Construction Corp.: Court refused to allow D defenses of either contributory negligence or
assumption of risk when P was part of the category that the statute protects.
- People that work with scaffolding don’t have a choice with what equipment they use, and the workers usually
don’t have a choice because they have to work

Robinson v. East Medical Center: 5’9 P who while standing on top of six-foot ladder, couldn’t recover when he fell
which reaching up to fix clamp located 13 ft above the floor.
- Can’t apply strict liability theory if you don’t show any defective condition @ workplace.

O’Neill v. Windshire-Copland Associates: D apartment building owner constructed railings 32 inches apart as opposed
to required 48 inches. P became quadriplegic after fell backwards over railing while drunk.
- Court denied P any recovery b/c VA law treats contributory negligence as total bar → P’s contributory
negligence = P can’t recovery, unless statute puts full responsibility of harm on D

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Dunphy v. Kaiser Foundation Health Plan of Mid-Atlantic States: P suffered amputation of right foot subsequent to
D’s failure to diagnose his bone infection.
- Ct held that P might not be CN because Dr. has extensive knowledge & P has limited knowledge of dangers.

Padula v. State: 2 inmates got access to the printing room and drank the ink. One P died and one went blind
- Court held D liable because D was negligent in leaving ink accessible, and should have taken precautions to
protect P.
o P couldn’t resist the urge to drink because they couldn’t control their urges (rehab center) → When
it comes to certain sorts of risks, we want to cast the entire responsibility of guarding against the
risk on one party
o P’s own contributory negligence isn’t going to bar their recovery

Raimondo v. Harding: Person in emergency situation and acts w/o opportunity to deliberate, may not be charged w/
contributory negligence if he acts as reasonably prudent person would act under the same emergency
circumstances, even if it appears afterwards that he did not take safest course or exercise the best judgment.
- Law of negligence takes into account an unexpected emergency requiring rapid response

π cannot be guilty of contributory negligence for using his land in a lawful manner
LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry.: π owned land & allowed Chicago to operate its railroad
on his land. π had two large piles of flax on his land. ∆’s locomotive negligently produced large number of sparks,
went on π’s land & spread to flax piles & burned them down.
- The rights of one man to use his property cannot be limited by the wrongdoings of another
- Issue of CN cannot arise b/c π has done nothing to invade ∆’s right of way (π didn’t act unreasonably)

Kansas Pacific Ry v. Brady: D, RR, set fire to P’s hay, which was stacked ~2 miles away from tracks. Court said the
burning was a result of acts & omissions of both P & D should’ve been submitted to the jury. P not responsible b/c
every man has a right to use his own property as he pleases w/o reference to the great inconvenience he may thereby
impose upon others (See LeRoy)

b. Last Clear Chance

- Contributory negligence of party injured will not defeat action if it’s shown that ∆ might have avoided π’s
injury by exercise of reasonable care
o If ∆ negligently fails to take last clear chance or negligently takes the last clear chance then even if
π was contributorily negligent, ∆ is liable
- Last clear chance turns π’s ability to recover back on, even if π was contributorily negligent.
- Last clear chance reinserts the incentives for ∆ to guard against the injury
o We apply last clear chance when ∆ realizes or should have realized that he could have avoided the
accident

Even if π is CN, if ∆ has last clear chance & ∆ acts unreasonably, ∆ is liable
Fuller v. Illinois Central RR: π, 70 y/o, riding wagon near RR tracks. Didn’t stop or look for trains & didn’t notice
oncoming train. Train was 30 min late & going faster than normal. π was in plain view on the tracks. Train could
have been stopped within 200 ft but conductor didn’t even stop or slow down. Only signal was a routine while blast.
∆ was instantly killed.
- ∆ duty to a trespasser is t not wantonly, willfully, or gross negligently cause injury to trespasser
o CN not a defense if ∆ acted wantonly, willfully, or grossly negligent.

Davies v. Mann: P left his donkey on the highway, and it was run over by D wagon.
- P was CN and D was negligent, but D had the last clear chance, so D is liable. D had the opportunity to not
hit the donkey by proper care so he’s liable for consequences of negligence.

Woloszynowski v. NY Central RR: To make good case on last clear chance, P must show that D was guilty of something
more than ordinary negligence → which presupposes either knowledge that P is in peril or negligence so reckless as
to betoken indifference to knowledge.

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Washington Metropolitan Area Authority v. Johnson: decedent flung herself onto tracks of oncoming train, only to be
killed when D’s intoxicated conductor ran over her. Even tho D was common carrier, court refused to apply last clear
chance to P b/c who had voluntarily invited the particular harm that occurred no matter how deficient the conduct of
D’s servant.
- Even though D is acting reckless, if P is acting recklessly to her own safety, P is barred from recovery.

c. Assumption of Risk

- Primary AOR: ∆ has no ordinary duty of care. π assumes the risk of being injured negligently, so π can’t
recover for being injured negligently
o Like competitive sports  athletes assume the risk/impliedly agree of being injured negligently
o ∆ can be liable for willfully, wantonly, or recklessly causing π harms
o Primary AOR is used to decide what ∆’s duty is
o π needs to voluntary assume risks  knows or should know the risks (ex: Pro baseball player
should know water on field is slippery b/c mud underneath)
- Secondary AOR: when ∆ breaches a duty that ∆ owes to π, but π also breaches a duty to himself, which
contributes to his injury so π barred from recovery (variation of CN)
o ∆ can use as a defense

When π knows the risk better than anyone, and continues to work, π can’t recover for workplace injuries
Lamson v. American Axe & Tool Co.: π was painting hatchet & hung them above his head to dry. Year before
accident, new racks replaced old ones & were less safe & not proper. π complained to superintendent &
superintendent said either use them or leave.
- Example of secondary assumption of risk  π knew about the risk & still continued to work – ∆ breached
a duty to him & π breached a duty to himself
- Trouble w/ allowing π to recover is π is being paid more for assuming the risk & once he gets injured he
would be getting paid again. π can’t get paid for both (Holmes)
o Workers in dangerous employments receive a “risk premium” to cover their added risk before any
loss occurs

Farwell v. Boston & Worcester R.R.: D employed P as engineer. While engaged in work, P lost right hand while
another of D’s servants carelessly threw wrong switch down the line. Employer had not been negligent in selection &
supervision of trusty switchman.
- Court had to decide whether RR could be charged w/ negligence of employee in an action brought by
employee’s fellow servant.
o Stranger can hold RR vicariously liable for wrongs of its servant but principle can’t benefit from P
assuming the risk.

St. Louis Cordage Co. v. Miller: judge defended assumption of risk as manifestation of freedom of contract.

Smith v. Bakers & Sons: P, while engaged in his employment, was injured when a stone that was being lifted over
his head hit him. Ct accepted P’s contention that he didn’t assume the risk b/c no specific knowledge that he was
about to be struck.

Volenti non fit injuria – one who takes part in such a sport accepts the dangers that inhere in it so far as they are
obvious & necessary
Murphy v. Steeplechase Amusement Co.: π went on “The Flopper” – moving belt that causes passengers to be
thrown of fall. Belt had padded walls & flooring. π stepped on belt, it suddenly jerked, & π fractured his kneecap.
- π assumes the risk of the ride  knew he could fall, normal to fall, nature of ride, & the ride’s name gives
it away
- Cardozo says: whether ride jerked or not is irrelevant b/c π would have fallen either way  doesn’t matter
how he fell
- Some amount of risk is tolerable & assumable b/c this is what π wanted
- Can be seen as primary v. secondary assumption of risk
o Primary  π assumes risk of being injured negligently b/c risks are inherent on the ride
o Secondary  even if ride breached its duty by negligence, π assumed the risk & went on the ride

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Russo v. The Range, Inc.: P injured while riding giant slide owned by D. Before entering park, purchased a ticket that
said person using ticket assumes all risk of personal injury. At top of slide, D placed warning for its proper use. P had
taken similar rides at park but claimed he had no knowledge that slides would cause body to fly in air as he rode it.
- Ride down slide was abnormal occurrence caused by some danger unknown to him & a risk he didn’t assume.

Maddox v. City of NY: P was outfielder for Yankees. Career was ended after he sustained severe damage to knee when
he slipped in muddy outfield while chasing after fly ball. P sued Yankees as his employer, Mets as lesses, and NYC
as stadium owner.
- Ct held that his continued participation in game in light of awareness constituted assumption of risk as a
matter of law, entitling D to summary judgment.
- For assumption of risk, P didn’t have to foresee
- the exact manner in which his or her injury occurred, just as he/she is aware of potential for injury of
mechanism for which injury results.

Marshall v. Ranne: D’s vicious boar bit P while P was walking to his house. P knew about boar.
- Jury denied P’s recovery b/c P was contributorily negligent in not shooting boar when he had chance & b/c
he voluntarily assumed the risk of harm.
o TX Supreme Ct reversed - contributory negligence wasn’t defense in case of strict liability
o P didn’t have a voluntary choice - either he was a prisoner in his own house, or took the risk to get
to his car.

d. Comparative Negligence

- If NY or CA, use pure comparative negligence

o If in another state, apply all
- 2 forms of comparative negligence:
o Pure: liability is proportionate to fault in all cases
 π can recover even if he was negligent
 Need to subtract π’s negligence from total, so the remaining amount is how much π can
recover
 Ex: $100 worth of injuries – π is 40% negligent & ∆ is 60% negligent, so π can
recover $60.
 NY & CA use this form. Don’t talk about 50% form. If not told state, apply BOTH
forms
o Impure: if π’s negligence is 50% or more then π is completely barred from recovery
 If π is less than 50% then π fully recovers
o Contributory negligence is not a defense to willful misconduct
o Doctrine of last clear chance typically disappears under comparative negligence
o To evaluate π’s recover:
 Did π owe a duty?
 Did π breach her duty?
 Did π’s breach of duty contribute to her injury?
 Does π’s conduct block her from recovery entirely, or does it decrease her
recovery amount?

If both π & ∆ are negligent, subtract π’s % of negligence to get the amount π can recover
Li v. Yellow Cab Co. of California: π attempted to cross three lanes of oncoming traffic to enter service station.
∆’s driver was traveling at excessive speed when he ran a red light & collided w/ π’s car.
- “Pure” form of comparative negligence should be adopted, but not contributory negligence
o Assess liability in proportion to fault
- When π & ∆ are both negligent & ∆ contributes to π’s harm, liability is assessed in direct proportion to fault
 π’s recovery may be reduced proportionally by his own comparative fault
- Court rejects impure form b/c why should π who is 40% negligent recover & π that’s 51% negligent not
recover?

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Bradley v. Appalachian Power Co: WV court adopted comparative negligence by judicial action but didn’t follow Li
in adopting pure form à don’t agree that party should recover regardless of his fault, so long as fault isn’t 100%.
- Party isn’t barred from recovery damages in tort action so long as his negligence or fault does not = or exceed
combined negligence or fault of other parties involved in accident.

Knight v. Jewett: P broke finger in touch football game after cautioning D not to play rough & threatened to quit game.
Next day, D broke P’s finger.
- D wins on SJ b/c reasonable implied assumption of risk
- Primary assumption of risk b/c D owed P only a duty to avoid reckless misbehavior but was at most guilty
of ordinary negligence, effectively cutting P’s COA

Morgan v. Johnson: P & D had child. Both P & D left bar together while drunk, D threatened P w/ knife, dragged her
to the car, & beat her with the rearview mirror. Court rejected D’s argument that P’s intoxication should be a defense
to an intentional tort.
- Statute does not mention intentional torts, but intended to encompass all degrees in tort actions short of
intentionally caused harm

Blazovic v. Andrich: Barroom brawl. Court rejected that intentional conduct is different from negligence &
wanton/willful conduct & can’t be compared w/ them.
- Guide to principle of comparative fault – distribute loss in proportion to respective faults of parties
causing that loss

Equitable indeminity allows a ∆ to obtain partial indemnity from other Ds on a comparative fault basis
American Motorcycle Association v. Superior Court: Gregos (π), a minor, was injured in motorcycle race. π sued
American Motorcycle, who allegedly negligently organized & ran the event.
- Court is preserving joint & several liability – any ∆ can be liable for π’s entire injury when his negligence
is a cause of π’s injury so π can recover from any D. ∆ can then use partial indemnity to recover from other
∆’s
o Tortfeaser is liable for the whole of an indivisible injury whenever his negligence is a proximate
cause of that injury
- Partial indemnification: any ∆ is joint & severally liable for π’s entire harm. π can recover her damages
from any party but those ∆’s can seek partial indemnification from other ∆’s from their share of the fault
o Here, AMA can seek partial indemnity from π’s parents on a comparative fault basis
o Indemnification shifts the entire cost of damages from one party to another
 Happens when ∆ is more at fault (ex: 51%)
o Contribution: divide damages between ∆’s based on their degree of fault
 Common law doesn’t recognize actions for contribution for joint & severally ∆’s b/c
standard principles for “all or nothing” still apply.
 Why try to calculate damages based on ∆’s fault b/c ∆ was wrong, so ∆ should be fully
liable
- If ∆ is insolvent, the remaining ∆’s split the insolvent’s portion comparatively based on their % of fault. If π
is CN, then ∆’s & π split insolvent party’s share comparatively
o If ∆ does intentional tort, then not split w/ π b/c CN is not a defense

H. CAUSATION

1. Cause-In-Fact

- Must ask but for ∆’s breach of duty, would π still have suffered harm?
o Imagine that ∆ did act w/ reasonable care  would π still be alive? What would have happened
had the ∆ not breached his duty & complied w/ his obligations? [counterfactual thinking]
o Did ∆’s activity cause π harm? Yes or no answer
- It’s a condition, act, or object that caused π’s injuries or increased the risk of harm to π
- Factual cause must be a necessary condition for the outcome
o Needs to be a cause of the person’s harm, not the proximate cause

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 - π must be able to establish that more probably than not, the outcome would’ve been different
- When not a cause of π’s harm, π doesn’t recover, even if breached duty

Where ∆ owes a duty & ∆ breaches that duty but causation is not established as a part of π’s prima facie case, ∆ is
not liable
New York Central R.R. v. Grimstad: Grimstad was employed as captain on a barge owned by D. π & wife were
on barge when tugboat bumped into it. Wife came & saw π in water who didn’t know how to swim. When she came
back from getting a line, he drowned. Wife sued ∆ for negligently failing to equip barge w/ life vests & buoys &
claimed lack of life preservers caused π’s death
- π’s prima facie case
o Duty  ∆ had duty to provide proper/safe boat
o Breach  ∆ breached his duty b/c he didn’t provide life preservers
o Causation  Not met here, so ∆ is not liable
- Even if ∆ complied w/ duty & provided equipment, no certainty that buoys would have saved π (pure
speculation)

Kirincich v. Standard: Deceased fell off dredge close to shore & was carried away when shipmates tried to save him
w/ inadequate lifesaving equipment.
- Court held no way to be certain if having proper lifesaving equipment would have saved P. If they had buoys,
P may have grabbed on→ based on if a reasonable man who is drowning would have been saved if there was
proper lifesaving equipment

Reynolds v. Texas & Pacific Ry.: P, 250-lb woman, fell down unlighted steps leading to train platform.
- Where the negligence of D greatly multiplies the chances of accident to the P, and would naturally lead to its
occurrence, the possibility P harm may have happened w/o D negligence is not sufficient to break the chain
of cause & effect btwn D negligence of P injury.

For ∆ to be liable, π needs to show that ∆’s negligent conduct, more probably than not, caused π’s illness/death
(overdose cases)
Zuchowicz v. United States: π was given prescription for double recommended dose of Danocrine. She took dose
everyday until she experienced symptoms. Was later diagnosed w/ PPH. Expert said he believed overdose of drug =
disease.
- π needs to show that OVERDOSE = CAUSE OF HARM.
o If no overdose, π’s case wouldn’t work b/c not unreasonable for doctor to prescribe (normal) dose
of drug
- π needs to show that ∆’s negligent conduct (prescribing overdose) caused π’s harm, not just his conduct
itself.
o Why is ∆ considered negligent? Negligent in prescribing overdose, not negligent if prescribed
normal dose
- π must show that there’s a tight relationship btwn health before taking drug & then her taking drug &
having symptoms  shows drugs caused PPH & nothing else caused it

Haft v. Lone Palm Hotel: P brought wrongful death actions when father & son drowned in pool at D’s motel. Hotel
had no lifeguard or sign which statute required.
- Court held that D act was a proximate cause of Ps deaths because not providing a lifeguard greatly enhanced
the chances that drownings would occur.

Schwabe v. Cluster’s Inn Associates: D drowned in pool. There was “no lifeguard” sign required by statute, when no
lifeguard is present, but D lacked on-site personnel capable of performing CPR.
- Court concluded that no intervention would’ve saved decedent …
- Court held that even though D followed the statute by having a sign, D is liable because D lacked on-site
CPR personnel.

a. Loss of Chance of Survival

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 - Happens almost ALWAYS in medical malpractice cases
- When but for causation test fails, use loss of chance of survival

When π goes to doctor w/ less than 50% chance of survival, he recovers a % of damages. If π has more than 50%
chance of survival, π recovers fully
Herskovitz v. Group Health Cooperative: ∆ failed to diagnose π’s lung cancer on π’s first visit. π’s wife sued ∆
for wrongful death suit. Doctor, π’s expert witness, testified that delay in diagnosis may have reduced π’s change of
survival by 14% (from 39% to 25%)
- Here, since π started w/ 39%, he wouldn’t recover anything
- “but for” test fails here, so we use loss of chance of survival test  want to see if ∆’s conduct more
probably than not decreased π’s chance of survival.
o Here, no it didn’t. If have less than 50% chance of survival, regardless of what happens at hospital,
person will probably die  even though π wasn’t properly diagnosed, more probably than not
lung cancer would’ve killed him.
- Policy: concerned that doctors won’t take reasonable care of π if π has less than 50% chance of survival b/c
doctors won’t be held liable for acting negligently.

Holton v. Memorial Hospital: Not allowing P to recover on tort medical actions b/c patient was too ill to survive or
recover = disincentive for doctors to provide quality medical care to critically ill/injured patients.
- Measure of damages computed by looking at percentage reduction in value or life or limb involved in
individual case

Verdicchio v. Ricca: D physician found negligent for failing to discover cancer tumor in decedent’s left leg. Evidence
was unclear if P cancer was fatal. P’s expert testimony said decedent had 85% five-year survival rate if tumor
diagnosed in timely fashion before it metastasized to lung but only 20-30% after it metastasized.
- Increased risk to which Dr exposed P was substantial factor in bringing about P harm

Alberts v. Schutlz: Even though D delayed P diagnosis, P couldn’t have gotten surgery anyways because P wasn't in
good enough condition

Fennel v. Southern Maryland Hospital Center: D negligence caused 51% of loss for P, so P recovered fully b/c more
probable than not that D’s negligence caused P death.

b. Multiple Sufficient Causes

When two things cause π’s harm, and only one thing is known, π can recover fully from the known cause
Kingston v. Chicago & N.W. Ry.: 2 separate fires, one caused by ∆’s train, & the other from unknown origin
merged & destroyed π’s property
- Standard causation test: “but for” fails here b/c can’t separate 2 fires  court treats both fires as joint b/c if
not for BOTH fires, π wouldn’t have suffered injury
- ∆ owed duty & beached a duty so we shouldn’t allow ∆ to get away w/ act b/c of moral luck
- The known wrongdoer may not be held fully liable when the injury was also caused by an “act of God” or
natural disaster (ex: Cook v. M)

2 independent ∆’s may be jointly liable if it’s impossible to separate the two acts
Summers v. Tice: Summers (π), Tice (∆), & Simonson (∆) went hunting. π told them to keep in line when shooting.
π got shot in eye & other shot in his upper lip.
- “But for” test doesn’t work b/c don’t know who shot the gun. To satisfy “but for” test, NEEDS to be
MORE PROBABLE THAN NOT (51%) & here it’s EQUALLY POSSIBLE that it could’ve been either
∆
o One ∆ definitely caused π harm  not π’s fault that he can’t identify which ∆ caused his injury
- Court doesn’t need in concert liability for ∆ b/c inappropriate for ∆’s to pay b/c ∆ were negligent & π was
innocent
- For ∆ to absolve himself, ∆ needs to prove act didn’t cause π injury
- ∆ has to pay π & then ∆ can sort it out btwn themselves who will pay

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Adams v. Hall: P’s sheep were killed by two dogs, each owned by two separate D’s. When evidence showed that
dogs had two diff owners, court didn’t allowed P to recover → D was under no obligation to keep other D’s dog
from killing sheep; nor vice versa.

When multiple manufacturers are ∆’s in negligence action & it cannot be determined which manufacturer caused π’s
harm, manufacturers will be held proportionately liable in accordance w/ the market share of their good that caused
π’s injury
Sindell v. Abbot Laboratories: π sued 11 drug companies on behalf of herself & other women. ∆ manufactured &
promoted DES, the drug which caused cancer in unborn daughters. Moms who took DES was unaware off side
effects. π suffers side effects now  π doesn’t know which manufacturer sold her mom meds so she sued 11 & b/c
they acted in concert of each other.
- Market share liability: must sue a substantial # of ∆’s – products you’re bringing suit against must be
fungible {interchangeable, basically all the same}, & everyone has to be a possible tortfeaser
o Someone that COULD’VE caused the harm  got to know which one
- ∆ doesn’t have better access to evidence – difficulty is not b/c of ∆’s negligent act of failing to provide
warnings, it’s b/c of the amount of time that has passed
- 3 types of approaches the court considers using, but doesn’t end up using:
1. Summers approach: when don’t know which of two ∆’s caused π’s harm, hold both ∆’s liable
a. Here, not fair to make ∆’s exonerate themselves b/c not all potential ∆’s were sued,
so possibility that one of them is responsible is so remote.
2. Concert of Action Theory: ∆’s have some kind of common plan or understanding
a. No evidence ∆’s were acting together in the production/manufacturing/testing of
DES
3. Market Share Liability (variation of Summers rule): a company will be liable for the share of
the market they have, multiplied by the amount of product that they sold
a. Requirements for π to sue under market share liability:
1. π needs to sue a substantial # of ∆’s – companies that have a substantial market
share because then there’s a higher probability that the company π is suing
manufactures the DES that caused π harm
2. Products that π is suing against needs to be fungible/interchangeable (products are
basically all the same) (ex: money)

McCormack v. Abbot Laboratories: let each D establish its share & then divide remainder equally among remaining
Ds.

Hymowitz v Eli Lilly & Co: since liability was based on overall risk produced, no exculpation evidence could be
allowed in individual cases. D could be found liable even if it could demonstrate w/ certainty that it didn’t produce
tablets in Q. Evidence won’t reduce overall burden b/c its increased share offset saving in individual case

Skipworth v. Lead Industries Ass’n: P’s kid got lead poisoning. P sued several lead manufactures. Court held for
defendant, because not all lead companies manufacture the same lead!
 To use the market share liability theory, the product need to be fungible!

Shackil v. Lederle Laboratories: Court held market share doctrine didn’t apply to DPT vaccine whose component
caused infant P to seizure disorder = permanent brain damage. Not all DPT vaccines were prepped in same way so
didn’t hold same level of risk

2. Proximate Cause

- Ask whether any of intervening events that happened after ∆’s act & before π’s harm sever the causal
connection between ∆’s act & π’s harm
- Foreseeable that ∆’s act = π’s harm
- 2 ways to view proximate cause:
a. Forward looking approach: whether the chain of events are sufficiently foreseeable, natural, or
probable? If yes, ∆ is liable
i. Judgment made from viewpoint of ∆ when he committed the act (objective & subjective)

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 ii. π cannot recover for harms that are not “within the risk”
b. Intervening act: whether any act of a third-party, π or natural event, severed the causal connection
btwn ∆’s act & π’s harm (start w/ injury then work back to ∆’s conduct)

∆ is liable only for proximate outcomes of ∆’s negligence, not for remote or distant outcomes of ∆’s negligence.
Ryan v. New York Central R.R.: ∆’s negligence set fire to their woodshed, which destroyed shed and wood. Then
fire spread to π’s house and houses near it. Case dismissed.
- Damage is the “proximate result” if it could reasonably be anticipated, or is a ordinarily and natural cause of
the act (not anticipated = remote)
- Expected that a fire in building A will destroyed A. NOT EXPECTED that fire in building A will spread to
building B-Z because it’s NOT A NECESSARY OR USUAL RESULT (damage to Ryan’s house not
expected/usual result)
- Policy: If ∆ could be liable for all remote outcomes, it would create a liability that would be the destruction
of all civilized society

When ∆’s negligence causes π’s injury, then π’s injuries are worsened by actions of third party, ∆ is also liable for
injuries caused by the third party ONLY if such injury is foreseeable and a probable consequence of ∆’s negligent
act
Brower v. NY Central & H.R.R.: π was operating wagon pulled by horse. Wagon had cider & barrels. ∆ collided w/
π, horse died, wagon got destroyed, & contents were scattered & stolen by thieves. ∆ had two detectives on train to
prevents thieves stealing goods, but detectives didn’t do anything here.
- Intervening act of thieves doesn’t prevent P from suing
o It was one simultaneous occurrence; not distant scenario
o D should and did foresee scattered cargo would be stolen because ∆ had 2 detectives on the train to
protect the goods/prevent these kind of harms

Bigbee v. Pacific Telephone & Telegraph Co.: P was trapped in telephone booth located in parking lot. P saw car
approaching out of control & was struck by drunk driver when he was unable to open the door in time.
- Phone company could be found negligence both on placement & maintenance of booth. D may be liable in
negligence for failing to protect P from foreseeable and harmful conduct of a third party.

Bell v. Board of Ed: D school board left P behind in 6th grade drug awareness fair. On way back, she was taken to the
house of a boy where she was raped & sodomized. Court affirmed jury verdict for P saying they can’t say that
intervening act of rape was unforeseeable as matter of law.

∆, who negligently imperils & causes injury to another person, may also be liable for injuries suffered by third party
in attempting to rescue that person, given that his actions were reasonable under circumstances.
Wagner v. International Ry.: π & cousin Herbert boarded a train operated by ∆. Conductor didn’t close doors & as
the train rounded the corner, Herbert fell off. π got off train & began walking to find cousin’s body. π alleges that
conductor instructs him to go to bridge & followed him w/ a lantern but conductor said this isn’t true. While walking,
π injured himself.
- ∆ proximity caused cousin's death, but question is if π can recover here?
- When ∆ endangers someone, ∆ endangers people around them who want/will rescue that person, and it’s
reasonable and foreseeable that people will want to rescue endangered person  ∆ liable to both
o Since ∆ negligently endangered cousin, its foreseeable that π would try to rescue him
o π not liable for rescuer’s injuries if rescuer acted foolishly, negligently, or without regard for his
own safety.
- Very rare that π’s contributory negligence or assumption of risk severs the causal connection between ∆’s
negligence and π’s harm

∆ is not liable for π’s injuries when π’s injuries weren’t reasonably foreseeable consequences of any of ∆’s negligent
acts (Cardozo) TAlK ABOUT AFTER CAUSE IN FACT
Palsgraf v. Long Island R.R.: Train was pulling in at station and didn’t stop. 2 men ran to catch it. One man, who
had package, had difficulty getting on so 2 of ∆’s employees pushed & pulled him onto train, then man’s package
containing fireworks dropped and exploded. Explosion caused scales to fall on & injure π who was on platform.
- π is owed a duty not to be harmed due to intentional torts, or negligent acts (duty is relational)

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 o When we think about the nature of ∆’s duty, we think sort of risks does ∆’s act foreseeably create?
What is the foreseeable scope of danger that ∆ act produces?
 Only a breach if π’s harm is a foreseeable result from ∆’s act (risk reasonably perceived
defines the duty owed to the others)
 Scope of ∆’s liability is curtailed by the risks that are probably & foreseeably going to
arise. They don’t extend to unforeseeable, unpredictable, entire coincidental harms that
may arise
- ∆ only owes a duty for what was reasonably foreseeable harms at the time that ∆ acted
o RR would be liable for man’s package being destroyed, not π’s harm  When guard kicks package,
foreseeable harm is injury to package (property), not injury to person’s autonomy
o Here, foreseeable that ∆’s act could have harmed man’s package, or even the man. NOT foreseeable
that ∆’s act would harm π
o Proximate cause has nothing to do with this case-  if we find that a duty is owed, then any resulting
harm is fair game (foreseeable or not)
 It’s foreseeable man/his property could have been injured from ∆’s act of helping him get
on train  SO ANY INJURY TO THE MAN, HE CAN RECOVER FOR
o Purpose of ∆’s act was to make the man safe. If there’s any “wrong” to him, it’s to his property
only (appropriate to hold ∆ liable?)
 Never get to the idea of BREACH because you never get past duty.
Andrews [proximate cause] (dissent but still should cite):
 Everyone owes the general public a duty to avoid unreasonable behavior (duty is reasonable care) that
causes harm. But π still must show ∆’s negligent act was the proximate cause of π’s injury
 ∆ owes a duty to the general public to avoid unreasonable behavior.
o We don't care about intervening act if they are foreseeable and part of the natural cause and effect
of ∆ act (does not affect ∆ liability to π) (ex: if ∆ shoots at π, there are intervening acts that are
natural and cause and effect to happen)
 If ∆ directly causes π’s harm, then ∆ is liable for ALL harm he causes to π, it doesn't need to be
foreseeable/expected
 We need to draw the line of ∆’s liability at some point  remote in time and space, don’t care about
intervening things that are NATURAL & PROBABLE, not distant in time or space, if it’s NOT substantial
factor in π’s harm, not natural and continuous
 Cardozo v. Andrews (analyze in causation)
o Cardozo  π will argue under Cardozo that the reason ∆’s act is negligent is b/c ∆’s act foreseeably
led to π’s harm, so ∆ was within scope of duty.
 ∆ will argue that π’s injuries were so unforeseeable that they were not what made ∆’s act
negligent (∆’s act can be negligent for a different reason)
o Andrews  ∆ will argue that even though ∆ has a duty, need to cut if off at some point –– ∆’s act
was remote in time and space, superseding cause, wasn’t a substantial factor in π’s harm, natural
and continuous

Parrot v. Wells, Fargo & Co.: Unmarked package containing gas was delivered to D’s business. When D’s servants
tried to open package, it exploded & killed them and damaged the building. Court held the tenants, as carriers, had no
duty to know of the contents of the package unless there were good grounds for believing that the package contained
something dangerous.

Mitchell v. Gonzales: P, 12 y/o, drowned while vacationing w/ D & 14 y/o son. 12 y/o didn’t know how to swim but
w/ D’s permission, went out on raft & drowned. P’s parents charged D w/ negligent for conduct on raft & D’s parents
w/ negligent supervision.
 Jury found that Ds were negligence, but negligence wasn’t proximate cause of death → at trial, judge gave
instructions for “but for” test

Scope of ∆’s duty is limited to the foreseeable harms that the ∆’s behavior could produce
Marshall v. Nugent: D1 owned truck that cut a corner on highway & forced off car driven by π’s son-in-law. D1’s
driver offered to help pull π’s car back onto highway & suggested π go to warn oncoming cars of obstacle. Just as π
was doing this, D2 approached & swerved but hit & injured π

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  ∆’s negligent conduct may be the proximate cause of π’s injuries even after ∆ acts, if the risk of π’s injuries
are a foreseeable consequences of ∆’s act
 D1 proximately caused Marshall’s injury  When π hit M’s car, it was reasonably foreseeable that M would
get out to try and pull car back on the highway & get hit by passing car
o Alternative  If π got back on road and then got into another accident, Prince would NOT be liable
b/c the first situation was stabilized, and then π got back in the car and drove.

I. AFFIRMATIVE DUTIES & OBLIGATIONS ON ∆

- Usually when ∆ has NOT acted  falls under scope of liability Q

- General rule  no legal duty to rescue someone but affirmative duties present exceptions
o Why?  very hard for the law to decide who should have a duty to rescue, and it’s hard for a
person to know when they will have a duty to rescue
 Don’t want to impose on people’s autonomy, law doesn’t deal with moral obligations,
making everyone liable could be a lot worse than better because can cause more injuries
o Law respects a person’s autonomy to not put himself in danger, so the law will not put a duty on a
person that will violate his autonomy (Court weighs autonomy interest of both parties)
- When a person has an affirmative duty:
a. Special relationship (therapist to girl murdered, parent and child, employee and employer,
invitee, patient and doctors)
a. if person gave up control to another person (Klein-landlord & tenant)
b. When you’re already acting you need to continue to act reasonable→ Don’t have duty to rescue,
but if you START to rescue then you NOW have DUTY to use reasonable care to rescue person.
a. Once you fease, you have duty not to misfease → now have duty of reasonable care
to prevent an increased risk of harm to others
b. EX: If Michael Phelps swam to save kid, but sharks, so swims back & doesn’t save
himà reasonable for Phelps to swim back even though he has an AD b/c sharks made
it more dangerous and could kill both or endanger both of them more
o 3. If you gratuitously undertaking a job and that person relies on you (Erie, Bukes armory, etc.)
 ∆ established some sort of custom that π relied on, so ∆ had a duty to continue to act
2. Random→ If you let a trespasser stay then he becomes a licensee

If π is a trespasser then ∆ (landowner) ONLY has a legal duty to not intentionally wantonly or wilfully harm to π.
Buch v. Amory Manufacturing Co.: π (8 y/o) trespassed in ∆’s mill where machinery was operating. Overseer told
π to leave but π didn’t go b/c π didn’t understand English. Overseer didn’t force him off the land & π’s hand was
crushed in machine
- ∆ was not liable for not warning π b/c did not have a legal duty to

When ∆ doesn’t have statutory req. to provide safety measures, but ∆ does provide then he has a duty to do it
reasonably. If ∆ doesn’t do it reasonably then ∆ is breaching their duty.
Erie Railroad Co. v. Stewart: ∆’s train hit π’s truck when π’s truck was approaching highway crossing. ∆ usually
had watchman at crossing to warn of oncoming train but watchman wasn’t there at the time so π didn’t warning until
too late.
- Once ∆ takes more of the risk, π is more reliant on ∆  ∆ voluntarily (not statutory) established a custom
that π/public knew of and relied to warn of oncoming trains.
- If there’s no statutory requirement for ∆ to use safety measures then ∆ won’t be liable if he doesn’t provide
safety measures. BUT when ∆ voluntarily provides safety measures, then ∆ has a duty to use reasonable care
when providing the safety measures.
o Other trains corp. may not have custom to use security measures, but here the train created
their own custom
- When ∆ voluntarily takes security measures, and those measures are known of and relied on by the public, if
∆ fails to use the measures and doesn’t warn the public, then ∆ can be liable.
o ∆ breached his duty by the watchman not being there & not warning π that watchman wasn’t there

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Weirum v. RKO General Inc: D made a contest-- he would drive around announcing his location on radio, and say the
first person to get here and answer questions correctly wins a prize. 2 teenagers got in 80mph drag race trying to get
to D location, hit P and he died.
- D is liable b/c he created an unreasonable risk of harm. It was a competitive scramble that was intensified by
the live broadcasts.

When landlord has exclusive control over parts of the building, he has a legal duty to exercise reasonable care to
minimize risk/protect tenants from foreseeable third-party criminal acts.
Kline v. 1500 Massachusetts Ave Apartment Corp.: π was assaulted & robbed in hallway of her apartment building.
When π moved into building, there was a doorman & other extensive security measures. But at time of assault, building
didn’t have security measures = had more # of assaults, larcenies & robberies in building
 Landlord is not an insurer of tenant’s safety but if the risks are foreseeable then landlord owes a duty.
Landlord has duty to provide reasonable safety precautions
o Landlord KNEW many crimes happened here & still didn’t provide safety
 Crime happened in hallway = Landlord exclusive control
o Landlord had a duty b/c only landlord could protect, tenants could NOT protect themselves
o Landlord has more power than tenants → tenants voluntarily give & landlords voluntarily accept
control over some aspects of physical environment which tenant lives
o π limited her power to protect herself because she gave power to landlord by living there
 Kline is different from Erie Railroad b/c Kline didn’t rely on landlord b/c stopped providing security. In Erie,
π didn’t know watchman stepped away & relied on him– Kline knew she could not rely on the security
measures from her landlord, so CAN’T use custom argument-- landlord never started acting.
o If she wins, she wins on other grounds.
 In Brower, ∆’s initial misfeasance created the opportunity for π’sharm [the initial act of misfeasance was
present – creates further duty to not let it get out of hand] → here in Kline, ∆ didn’t do anything itself
necessarily to cause the π any harm
o All ∆ did was change security measures {simply not feasing/acting at all}
 Causation Q: Was ∆’s negligence of security a cause-in-fact of π’s harm → but for the negligence of the ∆
for getting rid of security would π still get hurt?
o If a tenant harmed π, then ∆’s breach wouldn’t be a cause-in-fact of her harm & ∆ wouldn’t be liable

Wassell v. Adams: P was raped when she opened the door to hotel room in middle of the night thinking it was her
fiancé. D needed to warn her of risk in staying in motel b/c average person knows better than to door open in night &
warning would not have helped her b/c she was in sleep induced lapse.

Peterson v. San Francisco Community College District: Community college district had a duty to protect college
student against a foreseeable criminal assault that took place in broad daylight

Trustees of University of District of Columbia v. DiSalvo: University owed no duty of care to student who was attacked
in a campus parking garage b/c university had no reason to foresee the attack on P any more precisely than other
possible criminal acts on campus.

Frances T. v. Village Green Owners Association: P rapped in condo after board didnt let P put lights by her apt. for
protection. Liability imposed on landlords in Kline should be extended to condo boards & their members who function
as landlords.

Delgado v. Trax Bar & Grill and Morris v. De La Torre: restaurant owners owes a special-relationship-based duty
to take reasonable & minimally burdensome measures to protect customers or invitees who face danger from imminent
or ongoing criminal conduct on the premise.

When a therapist learns from his patient about intent to do harm to a third party, therapist has duty to take reasonable
precautions to warn potential victim of danger
Tarasoff v. Regents of University of California: Poddar & Tarasoff kissed once & then P became obsessed. Poddar
went to Dr. Moore (∆’s psychologist) & informed Moore he wanted to kill Tara. Moore took no steps to warn Tara or

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Tara’s parents of any danger. Moore did warn police & supervisor, but they disregarded it so Moore left it alone &
never warned parents or Tara herself.
 Courts say normally, there is no such duties in such cases → no duty to help/protect/save third-parties. But
sometimes there are reasons for going against this rule (start final like this when no duty but exception)
o Here it was foreseeable & ACTUALLY FORESEEN that Poddar would hurt Tara
 Here special relationship is btwn ∆ and third-party b/c it’s appropriate to hold ∆ liable for the harm caused
to π  Moore had duty to warn Tatiana of potential danger after Poddar disclosed his intent to kill her.
Dr. failure to warn her constituted breach of duty.
 Therapist doesn’t need to disclose every threat  Court says therapist just needs to use reasonable degree of
skill, knowledge, and care that’s exercised by members of psychology profession under similar circumstances
(Dr. held liable at level others would be)
o A reasonable therapist in Dr. Moore’s position should have reported the potential danger to Tatiana
or her family. The failure to do so by Moore and the other doctors employed by the Regents
constitutes a breach of their legal duty of care, and they are liable for negligence.
 Held to standard of a reasonable physician → reasonableness under the circumstances
 Policy→ would destroy confidentiality, if dr. required to go to police then it would deter patient from
speaking to dr. (BUT public safety is more important)

J. PRODUCTS LIABILITY

a. π’s prima facie case:

- Duty
o Was π a user or consumer or a foreseeable bystander?
o Did ∆ sell that product?
o Was ∆ “engaged in the business of selling”?
o Scope: if foreseeable bystander is included within scope of duty; people only have duties for people
that are using it for the intended use of the products (not like using a saw to cut your nails)
o If someone is using a product for a different use & that use is foreseeable, then you’re covered; if
someone modifies a product in a way that is completely unforeseeable, won’t hold ∆ liable for the
defect (Young, Soler, Brown)
- Defect (Breach)
o At time it was sold, it was in a defective condition
 1. Manufacture defect
 Look at other products that were functioning correctly & see if your design differs
in any way
 2. Design defect → manufactured correctly but whole design was defective
 This product & all the products like it were designed in this specific way & this
way was DANGEROUS → all the π has to do is prove that the design defect
caused her injury & ∆’s burden to prove it was not defective à my design was
totally reasonable & presented no harm to ∆
 Test: DO BOTH ON EXAM WHEN ∆ IS TRYING TO PROVE DESIGN NOT
UNREASONABLE
o 1. Consumer expectation test: Consumers expect this product will work
in this way {like fireworks blow up, consumers expect that saws will cut
things}
 D now has burden of proving that it was reasonable. ∆ is the
one that then has the burden of proving these.
 D can argue this fits consumer expectations b/c it had labeling
that says X & we market it in this special way that proves why
its reasonable
o 2. Risk-utility test
 D is going to argue that product is not defective b/c the benefits
of the design outweigh the risks of danger
 I’m willing to take this risk b/c the benefits will

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  Statute/customπ is going to argue statute sets the floor & not the
ceiling à you might still be obligated to do more b/c benefits
don’t outweigh the risks
 D can say there are some products we just need on the market
no matter how dangerous they are
 3. Warranty defect→ defective warning
 P is gonna argue there was a lack of or inadequate instruction or warning &
instruction or warning would’ve reduced the harm that was caused; π is going to
be arguing this is not a risk that the general population would know about. These
risks would significantly impact my decision to use this product. If arguing was
insufficient, inadequate warning b/c reasonable π would not understand this.
 Just warning of the most extreme outcome is not sufficient
 If the P had seen the warning, would she have still taken the product? Hard for π
to prove but you should still try. P is going to say of course I wouldn’t have taken
the product & ∆ is going to be like yeah right you would’ve taken it anyway
 Will get product & usually won’t be manufacturing defect.
- Causation
o But for proximate cause, was the defect of that product – was the defect the factual & proximate
cause of the injury
- Harm

- Here, ∆ could be liable for injuries he caused no matter what (strictly liable)
- ∆ will be held liable even in the absence of fault → even when ∆ didn’t do anything wrong, prima facie
case is “you acted & it caused me some harm”
- Abnormally dangerous activities → ∆ was doing something so scary that we want to ensure ∆ takes all
possible precautions to avoid causing harm, or at least take precautions of minimizing the risks of their
behavior
- Cardozo→ If ∆ produces a product, which if defected will be inherently dangerous  ∆ will be liable for
his defected product that injures a person
- Scope of liability still relevant  NEED foreseeability
- Res Ipsa Loqutior: the thing speaks for itself-- there are certain circumstance that we believe this harm could
only have come about when there was negligence
- Rule doesn’t apply to occasional seller of food or other products → doesn’t apply to person selling neighbor
a pound of sugar.

A manufacturer is absolute liable (S) when he puts a product on the market, he knows it wasn’t inspected, and the
product’s defect caused π’s injury
Escola v. Coca Cola Bottling Co. of Fresno: π worked as waitress & while she was placing coke bottles in fridge,
bottle exploded in her hand & caused severe injuries. π said ∆ was negligent in selling this defective bottle.
- If ∆ has exclusive control over product, and the product causes injury from negligence, ∆ is strictly liable
(like tenant & landlord relationship)
- Concurrence: impose duty on manufacturer, rather than retailer, because manufacturer is better equipped to test
product, discover hidden defects than the retailer, and bear costs than individual purchaser. Retailer can’t bear
burden of warranty
o Better rule  manufacturer is strictly liable when a product he puts on the market, knowing it
wasn’t inspected, & it’s proven to have a defect, if it causes π’s injury then ∆ is liable (don’t care
about negligence!)
o Allows π to get to the jury w/o evidence. But if ∆ proves product was not defective, jury can find
for D
o Manufacturer must know product is fit or faces consequences
 ∆ bears full responsibility for the products they put in the market. Even if nothing negligent
with how they made the product, they should be liable if there’s a defect and it causes harm
o Public interest concerns  discourage marketing of products w/ defects that hurt the public. In
public interest, you should hold the manufacturer responsible (even if not negligent) b/c
manufacturers can best afford such protections

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  Public interest best served by imposing absolute liability for injuries on manufacturer who
places product on the market, knowing it’ll be used w/o inspection, when product causes
injury to human beings.

Defenses of strict liability:

- Loss minimization: manufacturer is in best position to minimize losses that arise out of general use
- Loss spreading: ability of ∆ producer to spread damages among many consumers, cushioning “overwhelming
misfortune” of injured person or family”
- When goods were not packaged, general rule imposed negligence liability if at all on the retailer but not on original
supplier of food
- Corrective justice: Once π establishes causal connection to ∆’s act, then prima facie loss should be placed
upon party who created that condition, not party who suffered from it.

Castro v. QVC Network: P was injured when turkey fell on her leg after slipping out of roaster manufactured by D &
sold by D. Judge granted new trial → purpose of item was for baked goods, not baking huge fucking turkeys, so P
can’t recover.

Greenman v. Yuba Power Products, Inc.: P’s wife gave him Shopsmith power tool, manufactured by D. When P using
tool, piece of wood flew out & struck him on forehead, causing serious injury→ evidence that injury was from
defective construction of tools.
- P recovered damages from manufacturer. Justice Traynor opted for strict liability:
o Liability is not governed by contract law of warranties but by strict liability
o Purpose of liability is to insure the costs of injuries resulting from defective products are
on manufacturers that put products on market rather than by injured persons who are powerless to
protect themselves. Sales warranties serve purpose.
- Here, implicit in machine’s presence on market was representation that it would safely do jobs for which it was
built. It shouldn’t be controlling whether π selected machine b/c of statements in brochure or b/c of machine’s
own appearance of excellence that belied defect beneath surface
- To establish liability, P needs to prove that he was injured while using tool in way it was intended to be
used by a defect in design & manufacture that P wasn’t aware of

b. Types of Defects
- Manufacturing defects: the product the manufacturer intended to make is not what they actually made
o Manufacturer had some idea about what the product was supposed to be, and for some reason the
product (from 1-all) didn’t turn out that way in a way that made them unreasonably dangerous
o Maybe when knife was made, screws weren’t added the right way, person wasn’t paying attention
o For some reason, his product btwn all of the other products didn’t turn out this way à didn’t turn out
the way in a way that made it unreasonably dangerous
o EX: Not manufacturing defect when boneless chicken has bones in it. We mean like “mostly
boneless” not completely boneless.
 Consumer expectation test→ when you say boneless chicken, consumers expect some
bones; sometimes boneless was more of a suggestion than a promise.
 Metal in salmon=MD b/c unreasonably dangerous and differs from D intended design of
the product
o DOESN’T MATTER if D used reasonable or unreasonable precautions-- D’s defect in his product
caused P harm so D is liable-- SL, not about fault!!
o D can use contributory negligence or comparative negligence as defense

- Design defects: claim about not the particular product that harmed the consumer or a product that differs from
the one that manufacturer designed, but a claim about what the manufacturer actually designed. The thing you
wanted to create is itself unreasonably dangerous in the way that you made it.
o D product is unreasonably dangerous in the way D created the product. The design of the product is
unsafe, so P will argue that D could have made the product design safer
 Design of the product is unsafe, so P will argue that D could have made the product design
safer

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 o Open & Obvious rule→ doesn’t create incentives for D to create the product in a safe way. The rule
just requires D to make it apparent (market it) that the product is dangerous (P using
product=assumption of risk)
- Warning defects: when D doesn’t provide an adequate warning that a reasonable, prudent person would
understand

When were not sure what actually happened/actual cause, need to see if it makes sense to assume that more probable
than not, ∆’s product was defective
Speller v. Sears, Roebuck & Co.: π died in house fire that also injured 7 y/o son. Fire originated in kitchen but
argument as to whether fridge or oven started the fire. π had no direct evidence to prove fridge was responsible (only
circumstantial). Since everything was destroyed in fire, NOT SURE WHAT CAUSED FIRE. Here ∆’s fridge was
more probable than not defective and the cause of the fire.

Even if the product satisfies ordinary consumer expectations test, if product design fails the risk utility test then the
product = defective!!
Barker v. Lull Engineering Co.: π was injured using a forklift, which was intended to be on flat land, but π used it
on sloped land. π received only limited instruction. π was severely injured by falling timber & alleges ways that are
safer designs to make this product safer
- Need to do a 2-part test to determine if ∆ product had design defect:
o 1. Consumer-expectation test: π needs to proves that product failed to perform as safely as ordinary
consumer would expect when used in intended or reasonably foreseeable manner
 If product is more dangerous than consumer expects, then product defective. If less
dangerous than consumer expects, then product is not defective.
 Standard is not how just ∆ intended, but how product would be reasonably foreseeable
used→ ∆ needs to design product safely in way that ∆ know how consumers will use the
product
o 2. Risk-utility test: π needs to prove that product’s design proximately caused injury & ∆ needs to
fail to prove that the benefits of the design outweigh the cost of preventing the risk
 Would some alternative make the product safer & not be much more expensive?
 Like “Hand Formula” if ∆ shows that benefits DO NOT outweigh costs, then ∆ NOT
liable. So even if product would be safer, if costs are high then benefits don’t outweigh
costs.
 Like CUSTOM  consumers expectations relates to what they know/expect (what the
custom is in that industry) – custom is strong evidence of reasonableness, but its sometimes
isn’t (Ex: radio not custom on ships, but ships should have radios b/c makes ships
appropriately safer)
- Sometimes consumers may use products for something they’re not meant for, but ∆ should imagine situations in
which product can be used in a foreseeable way (misuse/not intended use)
- 2 ways looking at case when π misuses ∆ product
o When π misuse or modifies ∆ product in unforeseeable way and gets hurt  π is CN or assumes the
risk
 Puts more pressure & puts burden on ∆ (like Judge Traynor)
o When π misuses or modifies ∆’s product in unforeseeable way and gents hurt→ ∆ product is NOT
defective & fails prima facia case.
 BETTER b/c puts more pressure on π to use products in responsible way
 WE don't even get to CN if π fails prima facia case
- *∆ can never use CN defense for π failing to find defect in product. ∆ can use CN/secondary assumption of risk
as a defense if ∆ can prove that π is aware of defect and continues to use the product.

O’Brien v. Muskin Corp.: court is willing to let the case go to the jury even though P & D couldn’t point to anything
that would make the pool safer

Warning Defect:
- Fault based liability-- assess adequacy of ∆ warning and decide if warning is reasonable

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- Warnings usually for design defects. Can be used for manufacturing defect (ex: for boneless salmon, “may contain
bones”)
- There are some circumstances where product can’t be made any safer.
- We impose a duty on ∆ to warn because then π has the burden & π then had knowledge to make decision and can
consent to those potential risks and can exercise autonomy by choosing to bear the risk
o Often the case w/ pharmaceuticals
- By giving consumers knowledge about the products, they’re able to engage in autonomous choices.
o Therefore, ∆ IS RESPONSIBLE FOR PROVIDING REASONABLE WARNINGS TO THE
PRODUCTS
- IF there’s adequate → then it's informed consent

∆ has the duty to provide adequate warnings of the risks about their products in a way which a reasonably prudent
person would understand.
MacDonald v. Ortho Pharmaceutical Corp.: ∆ manufactured BC pills, which was prescribed to π by GYN. BC pill
packet had only had warning for “abnormal blood clot which can be fatal.” Dr. Knew of stroke warning, but didn't tell
π. π received no info about stroke risk. π took BC for 3 years, got stroke, and brain damage & disabled.
- General rule → manufacturer of prescription drugs satisfied its duty to warn if it provides warnings to a “learned
intermediary,” like a Dr.
o Exception→ BC
 Oral contraceptives are different from other drugs → π is choosing which BC she wants to
take (as opposed to regular situation where doctor would choose the best treatment) & b/c
π only goes to the gyno once a year to get BC pills
- ∆ had duty to warn of risks, and by not warning breached their duty (didn't answer causation question)
o Basically, there is a statute saying you must warn about this, but statute doesn’t give a complete list
of everything that D should warn about → the statute provides just a “floor” but not the “ceiling”
 You have to be at least ABOVE the floor; behavior can’t fall below these warnings but
doesn’t mean that some states don’t require some D’s to go BEYOND this
- When consumers don’t have warnings, they can’t exercise their autonomy w/ relative tradeoff between risks
& benefits
- If ∆ meets duty by adequately warning π of risks of drug, and π suffers harm→ “but for test” fails b/c but for
∆’s warning, would π have still taken pill? YES!!
- Although ∆ says they complied w/ duty b/c they warned of a risk greater than a stroke (death), court says
warning consumers of greatest risk doesn’t satisfy the duty to warn b/c the likelihood of risk can be different
(ex: 1% risk of death, 50% risk of stroke), and each person idea of what risks they’re willing to bear

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