Negligence

Looks at the Ds conduct and says did they intent to do something? If not, should they be held liable?
Should liability attach? Were they acting as a reasonable person would? Pinning liability on P and saying
D may also be partially responsible. Would cut Ds award by how contributory they are.

I. Introduction
In order to prevail for negligence:
a) Negligence is the omission to do something which a reasonable person would do
OR
b) Negligence is doing something which a prudent and reasonable person would not do
Rule: Liability for negligence requires that the D has a duty to prevent a foreseeable harm to someone
like the P; the D breached that duty by failing to exercise the care that a reasonable person would have
exercised; and the Ds breach of that duty was the actual and the proximate cause of the Ps harm.
Elements:
1) Duty
2) Standard of care
3) Breach of duty
4) Causation
a. Cause-in-fact (actual)
b. Legal (or proximate cause)
5) Injury or harm (i.e. Damages)
6) (Min) Freedom from contributory negligence
Duty what would the reasonable person do
1) Duty: A legal duty requiring the D to conduct himself according to certain standards
2) Standard of Care: The most common standard of care requires that the D act as a reasonably prudent
person would in the same or similar circumstances
3) Breach of Duty: The D fails to meet the standard of care
4) Causation:
a) Cause-in-Fact (Actual): The Ps injury is caused but the Ds conduct. But for the Ds conduct,
the P would both have suffered the injury
b) Legal (or Proximate): the Ds conduct must be shown to be the proximate or reasonably
significant cause of the Ps injury
5) The P suffered a cognizable injury
Contributory Negligence

Conduct on the part of the P which falls below the standard of conduct to which he/she should
conform for his own protection, and which is a legally contributing cause cooperating w/the
neg. of the D in bringing about harm to the P.
a) (Maj) Cont. neg. is an affirmative defense that the D must raise and prove
b) (Min)P is reqs to prove that she is not contr. Neg

Comparative Neg (some jurisdictions) just for notes

If below 50% contributory can recover
If above 50% contributory cannot recover
Risk is not judged by results
The P cannot simply show that the Ds conduct resulted in a terrible injury, but must show that the Ds
conduct, viewed as of the time it occurred, w/o the benefit of hindsight, imposed an unreasonable risk
of harm
*Have to put injuries aside and focus on behavior

II. Duty of Reasonable Care

A. The Objective Standard
Vaughn v. Menlove
Issue: Whether there exists a C/A for neg. if a person acts in conformity w/his own best judgment,
although this judgment causes him to behave in a less reasonable manner than a person who possesses
ordinary prudence?
The Reasonable Person:
Objective Standard: Would a reasonable person of ordinary prudence, in the position of the D,
have conducted himself as the D did?
The hypothetical reasonable person does bear some of the characteristics of the actual D.
Mental Attributes:
The ordinary reasonable person is NOT deemed to have the particular mental characteristics of
the D.
In other words, the D is not absolved of neg. b/c he is more stupid, hot-tempered, careless or of
poorer judgment than the ordinary reasonable person.
Imbecility:
(Maj) A mental state so low, however, that is must be considered imbecilic or moronic, and
which prevents the actor from even understanding that danger exists, will relieve the actor of
neg.
(RST & Min) The restatement does not adopt the maj rule that mental deficiency may neither
relieve a person of negligence nor relieve a P of contributory neg.

Holding: The D is not entitled to a jury instruction that he is not negligent if he acted in good faith and
according to his best judgment, and that he should not be penalized for not being of the highest
intelligence. Instead, an objective standard, the prudence of an ordinary person, must be applied.
Rule: The standard of care is founded upon the judgment of the person of ordinary prudence, not the
subjective judgment of the D, even if the judgment was based on an honest attempt to act reasonably

B. Actual & Constructive Knowledge

Parrot v Wells, Fargo & Co.,
Issue: Whether upon this state of facts the P is entitled to recover for the injuries caused by the
explosion to his buildings, outside of that portion occupied by the D under their lease.
Negligence Defined
a) Negligence is the omission to do something which a reasonable person would do
-ORb) Negligence is doing something which a prudent and reasonable person would not do.
Holding: The measure of care against accident, which one must take to avoid responsibility, is that
which a person of ordinary prudence and caution would use if his won interests were to be affected, and
the whole risk were his ownno case or principle can be found or maintained subjecting an individual
to liab. For an act done w/o fault.
***a reasonable person would have opened the box***
Problems:
A. P could no longer be said to be ignorant of the possible danger. Armed w/such knowledge, the
reasonable shipper would have taken some reasonable precautions (perhaps either refusing to ship the
crate or at least marking it as dangerous and explosive so that nobody would take a hammer to it).
D. Employees awareness of the possibility of the crates potential danger would suggest the need for
some precaution. The failure to act differently would suggest negligence.

III. The Reasonable Person Under the Circumstances

A. Extraordinary Knowledge and Skill
Cervelli v. Graves p.162
Issue: Whether the trial court erred in giving a jury instruction that the jury was not to consider a
persons skills in determining whether that person is negligent.
RST 289
The actor is reqd to recognize that his conduct involves a risk of causing an invasion of anothers
interest if a reasonable man would do so while exercising:

(a) such attention, perception of the circumstances, memory, knowledge of other

pertinent matters, intelligence, and judgment as a reasonable man would have; and
(b) such superior attention, perception, memory, knowledge, intelligence, and judgment
as the actor himself has.
Holding: The objectionable lang. of the instruction is surplus lang. which rather than clarifying the
fictional concept of the reas. person, actually unduly limited it We hold that the trial court committed
reversible error in using it to instruct the jury.

B. Physical Disability
Poyner v. Loftus p. 165
Issue: Whether SJ was appropriate b/c the P contends that there was genuine issue of material
fact as to whether as a blind person the P exercised reasonable care
Contributory Negligence Defense
To est. a defense of C/N, the D must show by a preponderance of the evidence that the
P failed to exercise reasonable care.
CAVEAT: In exceptional cases only will the Ps actions be clear and unambiguous so that
C/N will be found as a matter of law
Rule: A blind or otherwise handicapped person, in using public ways, must exercise for his own
safety due care, or care commensurate with the known or reasonably foreseeable dangers. Due
care is such care as an ordinary prudent person with the same disability would exercise under
the same of similar circumstances.
Holding: We agree with the courts both in Smith v Sneller and in Coker. Like the P in Smith, but
unlike the P in Coker, the P was alone, and he used neither a cane nor a seeing eye dog. He also
looked away at the critical moment. Under these circumstances, the P was contributory
negligent as a matter of law.

C. Mental Disability
Creasy v Rusk
Issue:
1. Whether the general duty of care imposed upon adults with mental dis is the same at that for
adults w/o mental dis
2. Whether the circumstances of the Ds case are such that the gen duty of care imposed upon
adults w/mental dis should be imposed this D

RSST 238B
Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor
from liability for conduct which does not conform to the standard of a reasonable man under
like circumstance.
Prior Indiana Law as quoted by the Court of Appeals
A persons mental capacity, whether that person is a child or an adult, must be
factored [into] the determination of whether a legal duty exists.
Determination of whether a duty is owed
1. Relationship between parties
2. Reasonable foreseeability of harm
3. Public policy concerns
Holding: We hold that adults with metal disabilities have the same general duty of care toward
others as those without. But we conclude that the relationship between the parties and public
policy considerations here are such that the D had no such duty to the P.
Problems p. 174
A. The reasonable person would not be mentally impaired and thus would likely have not
swerved into another lane causing the accident.
B. Because the victim is a random stranger rather that the patients caregiver, the patient
would likely still have a duty of reasonable care and the fact of mental impairment would offer
no excuse for the seemingly negligent act of throwing rocks into the street.

D. Children
Robinson v Lindsay

p. 175
Issue: Whether a minor operating a snowmobile is to be held to an adult standard of care.

Standard of Care: Reasonably prudent person in the same or similar circumstance

WPI 10.05
In considering the claimed neg. of a child, you are instructed that it is the duty of a child
to exercise the same care that a reasonably careful child of the same age, intelligence,
maturity, training, and experience would exercise under the same or similar
circumstances.

Child Standard Rule

The standard to be applied to minors is to act as a reasonable child of like: (1) age, (b)
intelligence, (c) maturity, (d) training and experience.
EXCEPTION: The adult standard of care is applied when the D child is operating a
powerful motorized vehicle, engaging in traditional adult activities, or participating in an
inherently dangerous activity.
Holding: No, where a child engages in an inherently dangerous activity, the child will be held to
an adult standard of care, even though the general rule is that a child is held to a standard of
the reasonable child of like age, intelligence, and experience.
Problems A & B p. 178
A. Bowling child standard
Bowling is normally done by children and not typically associated with catastrophic injuries if
done improperly. A child standard should be used.
B. Driving
The child who simply handed the keys to another child has not done something unusually
dangerous or inappropriate for a child. A child standard should apply to that child. However,
the other child drove and should be held to an adult
Hypo
Jill on ATV hits a bump and knocks someone off who breaks their arm liable
What standard? Adult
Jack loads shotgun and shoots David in the foot liable
What standard? Could go either way depends on jurisdiction

E. Extraordinarily Dangerous Activities

Stewart v Motts

p.179

Issue: Whether there exists a higher standard of extraordinarily care for the use of
dangerous instrumentalities over and above the standard of reasonable care such that the
trial court erred for failing to give an instruction to the jury that the D should have used a high
degree of care in handling gasoline.
Holding: We find that the charge when read as a whole adequately instructed the jury as to the
proper standard of care. There is but one standard of care and that is the reasonable care or
ordinary care.
Problems B & C p.182

B: Using the proportionality principle underlying reasonable care, one could argue here that the
D clown could have easily perceived possible danger from doing tricks on a motorized vehicle in
close proximity to spectators. One would expect some precautions to be taken and the failure
to do so might be considered negligence.
C: Failed to do what a reasonable person would do.
In this instance, the close proximity to certain death w/o guardrails would argue for a greater
amount of caution, utilizing the duty of reasonable care. This problem also makes one wonder
why Colorado highway officials allow so many high altitude roadways to go w/o simple, costeffective guardrails.

F. Sudden Emergency
Myhaver v Knutson
p.183
Issue: Whether the sudden emergency doctrine should be abandoned entirely and as applied in
the present case.
Sudden Emergency Doctrine:
An emergency is defined as a sudden and unexpected encounter with a danger which is
either real or reasonably seems to be real.
Limitations:
1. Emergency must arise suddenly and unexpectedly; and
2. The actor did not create the emergency
Pennsylvania McKee v Evans
The court concluded that the [sudden emergency] instruction was not favored and
should be given only in those cases in which evidence showed that:
1) party seeking instruction had no prior negligent;
2) emergency was sudden and unexpected; and
3) reaction was spontaneous.
Holding: We conclude that the trial judge did not abuse his discretion in giving the instruction.
This is a case in which there was no evid. of antecedent neg by the D.no question that there
was an emergency.reaction was spontaneous
*Sudden emergency doctrine is not available in all jurisdictions, some allow it some, and some
only allow it certain circumstance NOT A UNIVERSAL DOCTRINE
*DOES NOT alter or diminish the standard of care! Still must act within what a reasonably
prudent person would do.

Driving with Ms. Daisy

While Daisy is driving with Sally, Sally screams because she found her phone in the glovebox,
Ms. Daisys attention, momentarily drawn to her daughter and away from the road, slams into
the car ahead of her which is stopped at the light. Ms. Daisy has an accident. Is Ms. Daisy
negligent?
Would not be sudden emergency doctrine b/c not strong enough to constitute an
emergency.

IV. Proving Breach of Duty

A. The Learned Hand Formula
If the burden of preventing the injury (B) is lower than the product of the probability (P) of its
occurring and the amount of harm (L) that it will cause, then there is a breach of the duty of
care and liability for negligence exists.
B<LxP
(B) is the burden which the D would have had to bear to avoid the risk
(L) is the gravity of the potential injury
(P) is the probability that harm will occur from the Ds conduct
Threshold (Adult Standard)
Reasonably prudent person in the same or similar circumstance
Disability
If the D has a phys. Disability, the std. for neg. is what a reasonable person w that phys disability
would have done
Mental Attributes
Mental attributes: the ordinary RP is not deemed to have the particular mental characteristics
of the D.
Imbecility:
(Maj) a mental state so low, however, that it must be considered imbecilic or moronic,
and which prevents the actor from even understanding that danger exists, will relieve
the actor of neg
(Min) The Rest. Does not adopt the maj rule that mental deficienty may neither relieve a
person of neg. nor relieve a P of contributory neg
Child Standard

 RP child of like age, intelligence and experience

EXPCEPTION: unless the child is engaged in an inherently dangerous activity
Mental Illness
An indiv who suffers from a preexisting or permanent illness will not escape neg. liability
Exception: IF the mental illness is sudden thus depriving the indiv of control, then the
indiv will escape liability
McCarty v Pheasant Run, Inc.
p. 187
Issue: Whether the lower court erred in failing to grant the Ps motion for a j.n.o.v. on the
grounds that any reasonable person would determine that the Ds actions were negligent.
Duty: what an innkeeper is reqd to do to keep guests safe.
*How much would it have cost for each room to have a better lock?
*This is the burden of the Plaintiff to prove
Holding: Having failed to make much effort to show that the mishap could have been
prevented by precautions of a reasonable cost and efficacy, the P is in a weak position to
complain about the jury verdict. No effort was made to inform the jury what it would have cost
to equip every room.with a new lock, and whether the lock would have been jimmy-proof.
Problem p. 192
A.
Burden of precaution the attorney would want to know where the D was driving and
whether there was any great need to be there at a part time
Forseable risk of harm the attrny would want to ask about all of the visible info avail to
the D drive
o How much visibility was there aroundt he curve
o Were there any trees that interfered with being able to see
o Was it a populated area
o Did he know ther were homes
o What time of day was it
o Was the driver familiar with the road
o Did this area have a history of many similar accidents
o Had this driver ever seen or been involved in such an accident as this one?

B. Negligence Per Se Violation of Statutes

1. Origins & Rationale
Definition: Negligence per se requires proof of a statutory violation

Negliegence per se Doctrine

Neg is established as a matter of law so that breach of duty is not a jury question, arising
from a violation of a criminal statute.
*Failed to follow the law duty of care automatically breached
Martin v Herzog
p. 193
ISSUE: Whether the unexcused omission of a statutory duty constitutes negligence per se?
Statute: Highway Law, 329a.
Lights are intended for the guidance and protection of other travelers on the highway
HOLDING: Yes, the unexcused omission of the statutory signals is more than just evid of neg; it
is neg in itself
However, a causal connection b/t the neg and the harm must also be shown
Neg. per se is merely a shortcut for establishing duty and breach still have to show cause
Rule:
(Maj) If a person neglects to perform the specific duty est. by statute or municipal
ordinance for the protection of benefit of others, then that personis liable for the
resulting injuries to those persons whom the statute was designed to protect.

(Min) Statutory violation is never more than evidence of negligence, which the jusy may
find is outweighed by the other evidence of due care

Neg. Per se Doctrine

General Rule: When a safety statute has a sufficiently close appln to the facts of the case, an
unexcused statutory violation is deemed to be neg per se, and the D will not be permitted to
show that the legislature set an unduly high std of care.
Balancing test: greater risk of harm to following the statute or disregarding it?
Test of Statutes Applicability
To determine whether a statute can be used to est the std of care in a neg C/A, the judge must
determine that:
1) the statue sought to protect against the Ps particulary injury; and
2) the P is a member of the class that the statute intended to protect

Public Protection Exception

1) Where the statute is intended to protect only the interests of the state or the public
at large, and not to protect particular individuals against harm, the vilation will not be
NPS.
2) A statute may be held to have been intended to protect both the public at large as
well as a particular class of individuals. The violation may be NPS.
Ordinances and Regulations
Where a case involves a violation of a local ordinance or administrative regulation, cts.
That typically follow the majority rule w/r/t legislative statutes will apply the minority
holding that such violations are merely evid of negligence
2. Type of Harm and Membership in a Protected Class
Elements: To apply the doctrine of negligence per se, the P has the burden of proving that:
(1) D violated a statute that prohibited certain particular conduct
(2) That the statute was intended to protect against the harm for which recovery is sought; and
(3) That the victim harmed by the violation was part of the class of persons for whom the
statute was intended to provide protection
*Does it apply to the purpose of the statue?
*Harm needs to relate to the statute
*Needs to protect a particular class of person
Wawansea Mutal Insurance v Matlock

p. 197

Issue: Whether the lower court erred in finding the D liable for the harm and thus responsible
to the P under a theory of negligence per se
Whether there is a basis to the D liable for the damage caused by the actions of the other
tortfeasor
Tortfeasors
Concurrent: two or more tortfeasors who simultaneous actions cause injury to a third
party (tortfeasors are jointly and severally liable)
Joint: two or more tortfeasors who contributed to the Ps injury and who may be joined
as Ds in the same lawsuit
Successive: two or more tortfeasors whose neg occurs at different times and causes
different injuries to the same 3rd party

Rule:
In general, one injured by the neg of another is entitled to recover the damages proximately
caused by the tortfeasors act and the P has the burden of proof to establish that the Ds neg
was the proximate cause of the damages.
Contribution:
One tortfeasor right to collect from joint tortfeasors when and to the extent that the
tortfeasor has paid more than his or her proportionate share to the injured party, the shared
being determined as percentages of causal fault (also known as the right of contribution)
Indemnity
A duty to make good any loss, damage, or liability incurred by another
The right of an injured party to claim reimbursement for its loss, damage, or liability
from a person who has such a duty.
Equitable Indemnity
A doctrine allowing a D in a tort action to allocate blame to a co-D or cross-D, and
thereby proportionally reduce legal responsibility, even in the absence of contractual
indemnity
Negligence per se
The doctrine of NPS does not apply even though a statute has been violated if the P was not in
the class of persons designed to be protected or the type of harm which occurred was not the
one the statute was designed to prevent
3. Excuse
Sikora v. Wenzel

p. 201

Issue:
Whether the D is liable for injuries and harm resulting from the collapse of a deck
although the D had no notice of the existence of a defect
Whether the lack of actual or constructive notice of a defect excuses the violation of the
building code
Deck was not in compliance with safety codes, but landlord did not have any knowledge or
defect. Deck collapsed. Should the D be let off the hook?
Holding: We conclude that the statute requires landlords to conform to particular standards of
care, the violation of which constitutes neg per seNo factual circumstances existed that would

have prompted or reqd the D to investigate the process between the City and developeror
that the D knew or should have known of the condition giving rise to the violationviolation is
excused.
Notes:
Need to determine what he knew and how he knew it: Did he try to fix it? Did he receive a
report? Was defect visible? Constructive knowledge with respect to your property have to
make a reasonable inspection of your property
4. Industry Custom
Issue: Whether the failure to carry radio receivers by which the defendants could have received
timely warnings of the weather change

Courts must in the end say what is reqd; there are precautions so imperative that even
their universal disregard will not excuse their omission. But here there was no custom at
all Some had them, some did not; the most that can be urged is that had not yet
become general
o This case is not just about radios, it is also about what should be done the
seamen had their own personal radios, so the industry custom is wrong

Holding: We hold the tugs [liable] b/c had they been properly equipped, they would have got
the Arlington reports. The injury was a direct consequence of this unseaworthiness.
Custom & Usage
(Maj) The cts. Allow evid. as to custom or usage for the purpose of showing the
presence or absence of reasonable care, but they do not treat this evid as conclusive
CAVEAT: Even though custom or usage is not conclusive on the issue of neg, if there is
no rebuttal evid., the fact that the D did or did not follow the custom or usage may be
sufficient to prevail
Look to RSST 295(a)
Rule:
When proof of an accepted practice is accompanied by evid that the D conformed to it,
this may establish due care
When proof of a customary practice is coupled w/ a showing that it was ignored and
that this departure was a proximate cause of the accident, it may serve to establish liab.

If the court says we are not going to give custom the standard of care does not mean you
wont be held personally responsible
Traditional Standard of Care RPPSS NPS/custom just show ordinary standard of care if
they are not available the RPPSS still applies court may not apply NPS/Custom for some
reason (NPS and/or custom are just a shortcut to show RPPSS standard)
5. Personal Custom
Wal-Mart v Wright
Issue:
Whether the second paragraph of the tendered jury instruction permitted the jury to
evaluate the Ds conduct based upon the subjective standard established by the D or on
a objective standard of ordinary care
Recommended Jury Instruction
You may consider the violation of any rules, policies, practices and procedures
contained in these manuals and safety handbook along with all of the other evidence
and the Courts instructions in deciding whether Wal-Mart was negligent
Holding:
The second para of the instruction told the jurors that b/c the D has established certain rules
and policies, those rules and policies are evid of the degree of care recognized by the D as
ordinary careThe D is correct that its rules and policies may exceed its view of what is
required by ordinary care in a given situation.
Hypo:
Peter jaywalks and crosses the street and David hits him. Is David negligent?
o Context changes expectations nighttime, daytime
o Yes
Jaywalking is a statutory violation in Mo laws and anyone in violation of the statute is
contributory negligent. Can Peter state that it is custom to jaywalk and thus evade being
contributory negligent?
o No,
o Can you use custom to challenge statutory care? No
o Custom will not excuse the violation of a statute, but it may affect what the
reasonable person will do. Drivers on a street where pedestrians jaywalk may
need to take the presence of jaywalking pedestrians into account as they drive.
The pedestrian on the other hand, could not use custom to excuse their violation

of the statute if, for example, violation of the statute constituted contributory
neg per se in that jurisdiction

C. Res Ipsa Loquitor the thing speaks for itself; things dont happen just to
happen how to hold D liable when no direct evidence of that breach?
1. Direct Evidence: Evid based on personal knowledge or observation and
that, if true, proves a fact w/o inference or presumption (also termed pose
vid)
2. Circumstantial Evidence: Evid based on inference and not on personal
knowledge or observation (also termed indirect evid; oblique evid)
3. Res Ipsa Loquitur (RIL or res ipsa): The doctrine provides that, in some
circumstances, the mere fact of an accidents occurrence raises an
inference of neg. so as to establish a prima facie case.
Rule:
The fact of an injurys occurrence, taken w/the surrounding circumstances
may permit an inference of neg. or raise a presumption of neg., or make
out a Ps prima facie case, and presents a question of fact for the D to mee
w/an explanation
Byrne v. Boadle
Issue: Whether a presumption of neg. can arise solely from the fact that an accident occurred?
Holding: Yes, according to the doctrine of res ipsa loquitour,
Required for Res Ipsa:
(1) The nature of a particular accident suggests that it was probably due to negligence
(2) The D had exclusive control over whatever caused the accident (such that it was the Ds
negligence)
(3) The P lacks direct evidence of the event relative to the information available to the D
1. no direct evidence of the Ds conduct (if we know how the D behaved we DO NOT use res
ipsa)

2. SELDOMLY OCCURRING:
a. P has to demonstrate the event does not normally occur except through the act
of neg. itself, all the P has to do is show that most of the time neg. occurs not
all the time
b. P does not have to show there are no other possibilities that could have caused
the accident, just have to show a 50% probability
3. DEFENDANTS CONTROL
Older cases show it must have been in exclusive control modern cases require only that that
the P show that MORE LIKELY THAN NOT the D was in control and not someone else.
Must produce evidence negating other probablitites and show it is more likely than not
that the D was responsible
D can negate res ipsa breach if they can offer up someone else was in control they will
escape liability
Res Ipsa Requirements: (from slides)
1. No direct evidence of Ds conduct
2. Ordinarily event does not occur w/o neg
3. Instrumentality in Ds control
RTT 17:
The factfinder may infer that the D has been neg when the accident causing the Ps harm is a
type of accident that ordinarily happens as a result of the neg of a class of actors which the D is
a the relevant member

Krebs v Corrigan

p.214

Issue: Whether a C/A for neg. can be sustained in the absence of proof
Necessary Conditions for Res Ipsa
Three conditions exist:
1. The cause of the accident is known
2. The accident producing instrumentality is under the exclusive control of the D

3. The instrumentality is unlikely to do harm w/o neg on the part of the person in control
Holding: We find that the Ps evid, considered in the light most favorable to himwas suff. To
raise an inference of neg. so as to survive the Ds motion and to put them to their proof.

Res Ipsa Loquitor

Does not apply if the cause of the harm is known. The appln of the principle nearly
always presupposed that some part of the causal process is known, but what is lacking is
evid of its connection w/the Ds act or omission.

Rule giving Effect to Res Ipsa

The fact of an injurys occurrence, taken w/ the surrounding circumstances:

1. may permit an inference or
2. raise a presumption of neg., or
3. make out a Ps prima facie case,
and present a question of fact for the D to meet w/an explanation

Effect of RIL (varies by juris)

Inference: warrants an inference of neg. but does not demand one;
Rebuttable Presumption: raises a presumption of neg. that the D must rebut or lose; or
Rebuttable Presumption and Burden Shift: raises a presumption of neg. and shifts the
burden of proof to the D to prove his neg. did not cause the injury
Cause
When the fact of control is used to justify the inference that the Ds neg. was responsible, it
must be shown that the thing in his control in fact caused the harm
Problem p.218
While the barge & tug were clearly in the exclusive control of the D tug boat owner in the TJ
Hooper case, it seems like a reach to say that ships dont sink in bad storms w/o neg
No question about Ds actual conduct and P had a specific theory as to what D should have
done differently. Had direct evidence.

V. Recklessness
Mobil v. Ellender
Issue: Whether the Ds conduct constitutes gross neg (i.e. an extreme degree risk of which the
D was aware) and is therefore reckless in order to satisfy the Ps request for punitive damages
Punitive award: compensates & punishes
Gross Negligence:

1. Viewed objectively from the actors standpoint, the act or omission must involve an
extreme degree of risk, considering the probability and magnitude of the potential harm
to others; and,
2. The actor must have actual, subjective awareness of the risk involved but nevertheless
proceeds in conscious indifference to the rights, safety or welfare of others.
Basically says: you knew (had knowledge) and said screw it and did it anyway
Holding:
The Ds conduct, viewed objectively, shows that the Ds failure to warn or to protect
contract workers presented an extreme degree of risk to contract workers like the P.
The D not only had actual awareness of the extreme risk of benzene but also proceeded
with conscious indifference to the rts., safety or welfare of the P and other contract
workers.
How long did they know, what did they know, did they warn others
What they knew, when they knew it, how much they knew
Gross negligence their conduct is so beyond the pale that punitive damages need to be attached

Problems:
Intoxicated what standard?
Reasonable sober person

Negligence: Causation
2 part test: But/For & Proximate Cause
Sine Qua Non or But For without wich not, an indispensable condition or thing; something
on which something else necessarily depends.
Cause In Fact
Rule: cause in fact requires the P to prove that the Ds conduct caused legally
recognized damages
In other words, the P must prove not merely suffering harm sometime after the Ds
negligent conduct but that the harm was caused in fact by the Ds conduct.
P bears the burden of proof and persuasion and must thereby prove that the Ds
conduct was more probably than not the cause of the harm that the P suffered.
o Find that which points in this direction may not be the only cause but is the
most probable cause (my note)
Four Types of Cause in Fact
1. Scientific Connection: P must produce evid that is scientifically possible for the
injury to occur and that it existed in the Ps case
2. Who is the cause? Multiple Ds: P is definetly injured but is unable to produce evid
that will determine which D among the many is responsible for the injury
3. Would safe behavior have advoided the injury? Whether the safe beh exhibited by
the D would still have produced the injury
4. What harm caused? What harm was caused by the Ds negligent conduct

Cay v Louisiana
Issue: Whether P proved that DODs construction of the bridge railing at a height lower than
the minimum standard for pedestrian traffic was a cause-in-fact of Ds fall from the bridge
Appellate Court Dicta:
It is true that the accident might have occurred had the railing been higher. However, it
is also true that the accident might not have happened had the railing been higher. Had
the railing been higher, the decedent might have been able to avoid the accident.
Why the Supreme Court issued Certiorari:

This lowered the plaintiffs burden of proof undermines the Ps burden of proof to
show by the preponderance of the evidence - the P has to turn it around and show that
that the Ds failure to establish the safety rail was insufficient.
The Cause-in-fact is the initial inquiry in a duty-risk analysis. We dont really know here,
the Court does engage in hypotheticals and rules out the other possibilities: suicide,
third party, etc.
o Bottom line was the fence likely to have caused the harm
o Could it have been neg. per se b/c the city did not build it to regulation code
Rebuttals:
He was not in the class of persons meant to be protected
This was not a pedestrian bridge but the other bridge was
closed & they did owe a duty
Holding: A cause-in-fact determination is one of fact on which appellate courts must accord
great deference to the trial court. We cannot say that the trial court erred manifestly in
determining that a railing built to AASHTO minimum specifications would have prevented Cays
fall.
*Dont just look for one cause there may be many
But-For Test
Whether the injury would not have occurred but-for the Ds substandard CONDUCT
The cause-in-fact analysis is usually a jury question UNLESS reasonable minds could not
differ.

VI. Alternatives to But-For Causation

Idea: if you cant identify a particular cause how do you find someone to hold responsible? P
has to prove independently against both that either one by preponderance of the evidence
could have caused the event. Burden shifts to D to prove they did not do it.
Kingston v. NE RR
Issue: Whether the railroad co, which is found to have been responsible for the origin of the NE
fire, escapes liab b/c the origin of the NW fire is not identified, although there is no reason to
believe that it had any other human origin
Holding: we are not disposed to apply the doctrine of Cook case to the instant situation. There
being no [proof that the NW fire was due to an irresponsible origin], the D is responsible for the
entire amount of that loss. The fact that the NE fire was set by the RR companyis suff. to
affirm judgment.

Policy: Do not want to place undue burden on the P, if P can prove D was neg, then it is on D to
find the other party if they want to recover further.

But For Test

(Positive) The Ds conduct is a cause in fact of the Ps harm if, i.e., but-for the Ds
conduct the harm would not have occurred.
(Negative) If the P would have suffered the same harm had the D not acted negligently,
the Ds conduct is not a cause in fact of the harm.
Look for: if there are multiple tortfeasors at there is appoint of time in between does the
second persons harm take away from the first persons harm because it is so egregious, or the
1st person is too far removed interceding & superseding causes
Rule:
Liability for negligence depends on a showing that the injury suffered by the P was caused by
the alleged wrongful act (or omission to act) by the D. Merely showing a connection b/t the
negligence and the injury is not sufficient to establish liability.
Problem p. 235:
#4.
Application of the Substantial Factor test.
If one accepts the proposition that there is no safe level of asbestos dust, then the
victims exposure to asbestos at any of his employers could have each, independently
been a cause for his illness. Therefore, there would be no true but-for cause of his
illness among the potential tortfeasors.
If the expert testimony established a min level of exposure b/f the illness could be
caused by the asbestos, then further investigation into the carious levels of asbestos
exposure at each shipyard would be needed to analyze the causation issues further.
Substantial Factor test
When separate acts of negligence combine to produce directly a single injury, each
tortfeasor is responsible for the entire result, even though his act alone might not have
caused it.
o Cant double-dip all responsible for the damages or go after one independently
for their proportion. If you go after one and it is held responsible for all, you
cant go after any other.

Problem:
Druggist forgot to label medication not to be taken with alcohol, Paul took medication & drank
then had an accident on the way home. However, Paul did not read the bottle anyway.
Who to hold on the hook: Doctor and Druggist who is more liable does the druggist failing to
put the label on break the cause chain for the doctor failing to warn about the alcohol
Does Paul drinking create contributory negligence?
All will be on the hook
VII. Problems in Determining which Party Caused the Harm
Summers v. Tice
Issue: Whether two Ds will be held jointly liable if there is no evidence proving which D caused
the harm, when both are negligent but only one of them could have caused the Ps injury?
Holding: yes, the judgment against both Ds may stand. Although the Ds were not acting in
concert and there is insufficient evid to determine which D was guilty of the neg that caused
the injuries, they are jointly liable b/c otherwise the P would be unable to recover.
(shows they do not have to be acting in concert, just that it could have been either one who
caused the harm)
Alternative liability shows a policy concern in that it compels D to show they are not the one
who caused the harm BURDEN SHIFTS to D
Starts with Ps burden to prove: duty, breach, cause, harm alternative liab allows
Shifts the burden to D to show that they are not liable
Problem p. 248
Boyscout case with paperclip shooting
Alt liab is a causation doctrine, it can be applied as a band aid to any tort C/A. the
court found no liab due to consent, but if there had been no consent, it would seem P
would have a good battery claim for being shot in the eye with a paperclip
The P was only hit by one paperclip despite both other boys having shot at the P.
assuming there was no other evid available as to which one hit the P, it would make
sense to apply the doctrine of alt liab if P sued them both.
Imposition of liab
Apportionment:

Causal: one D caused a particular loss or an identifiable share of the loss and should be held to
no more than that liab
Comparative fault: each D is held liab for a percentage of the Ps damages in proportion to that
Ds percentage share of the fault
Rule
Distinct Injuries: When 2 or more tortfeasors cause separate harms to the P, each tortfeasor is
normally held liable for the harm he caused, no more
Divisible Injuries: apportionment of responsibility when the p suffers a single injury rather than
distinct harms but the single injury is capable of being apportioned in some rational way.
Single Indivisible Injury: When the P presents evidence that she suffered a single or indivisible
injury at the hands of 2 or more tortfeasors, the burden is shifted to the tortfeasors to show
that the P suffered separable injuries and that they can be apportioned or attributed separately
to the different tortfeasors.
Joint and Several Liab
P may:
a) Sue each tortfeasor separately; or,
b) Sue both tortfeasor in a single action; or,
c) Obtain a judgment against one tortfeasor alone and enforce it against that one; or
d) Obtain a judgment against both tortfeasor and enforce it against both; BUT
e) P may not actually collect more than one full compensation
Narrowing the Universe
For a P to prevail in an action that has two or more tortfeasors. The p has to narrow the
universe of potential tortfeasors by demonstrating that the injury was more likely than not a
result of the actions of the two (or more) chosen Ds.
Burke v Schaffner
Issue: Whether the trial court erred when it f ailed to grant the Ps motion for a directed verdict
thus giving effect to the application of the doctrine alternative liability
RTT 27
If multiple acts occur, each of which under 26 alone would have been a factual cause of
the physical harm at the same time in the absence of the other act9s), each act is
regarded as a factual cause of the harm.
RTT 28

a) Subject to Subsection (b), the P has the burden to prove that the Ds tortious conduct
was a factual cause of the Ps harm.
b) When the P sues all of the multiple actors and proves that each engaged in tortious
conduct that exposed the P to a risk of harm and that the tortious conduct of one or
more of them caused the ps harm but the P cannot reasonably be expected to prove
which actor or actors caused the harm, the burden of proof, including both production
and persuasion, on factual causation is shifted to the Ds.
If you are going to apply a doctrine you have to understand the theory behind it
Attorney expected the burden to shift to the D, but it never did
Key to alternative liability the P does not have the information to prove what happened.
Have to at least make the inference that they are both tortfeasors
Doctrine of Alternative Liability
Under the theory of alternative liability, the P must prove that:
1) 2 or more Ds committed the tortious acts; and
2) P was injured as a proximate result of the wrongdoing of one of the Ds
3) burden then shifts to the Ds to prove that they were not the cause of the Ps injuries
Requirements:
1. More than one actor has had to act negligently
2. multiple negligent persons must be named as Ds in the case
Holding
As the D in the instant case was the only D before the court, there was no other named D to
whom the burden could or should have been shifted. The trial court properly ruled that
alternative liability was inappropriate under these circumstances
Sindell v Abbott Labratories
Scope of potential DES Litigants: As a result, an estimated 5-10 million pregnant women and
their offspring were exposed to DES
Class Action
A lawsuit in which the court authorizes a single person or a small group of people to
represent the interests of a larger group
Federal procedure has several prerequisites for maintaining a class action: (1) the class
must be so large that individual suits would be impractical, (2) there must be legal or

factual questions common to the class, (3) the claims or defenses of the representative
of the class, (4)
Issue: Whether each manufacturer that produces and distributes a dangerously defective
product should be responsible for their part of the damages due to an injured P in proportion to
their share of the total market for the product?
Holding:
Yes, each Ds liable for damages would be approximately equivalent to the injury caused
by the DES it manufactured
This case modified the rule set forth in Summers v Tice, b/c unlike that case, all of
possibly responsible parties were not b/f the ct. in other words, the responsible
manufacturer could escape liable In this case.
Apportionment of Damages
Each D will be held liable for a proportion of the judgment based upon its share of that
market UNLESS the D demonstrates that it could not have made the product which
caused the Ps injuries
RST 433B(3)
Where the conduct of two or more actors is tortious, and it is proved that harm has been
caused to the P by only one of them, but there is uncertainty as to which one has caused it, the
burden is upon each such actor to prove that he has not caused the harm.
Michigan Rule:
Class of Ds: if P can join all possible Ds, the burden of proof shifts to the D to prove that it did
not manufacture drug
Exculption: Allowed of a D can prove that it did not manufacture the drug taken by the P.
Liab.: Remaining Ds are jointly and severally liable on a per captia basis not a market share
California Rule
Class of Ds: P is reqd to bring Ds representing a substantial share of the market to court
Exculpation: allowed for a D if it can prove that it did not manuf the drug taken by the P
Liab: remaining Ds are severally liable for only that portion of the Ps damages that corresponds
to the percentage of its market share.
New York Rule
Class of Ds: No specified number of Ds are needed to use the market share theory of recovery

Exculpation: Not allowed

4. Increased Risk of Future Harm
Temple-Inland v Carter
Issue:
Whether a person who has been exposed to asbestos but does not have an asbestosrelated disease may recover damages for fear of the possibility of developing such a
disease in the future.
Whether the Ps can recover for their fear that they will someday develop such a disease
from their work at Temple-inlands lab
Holding:
The court cannot sanction recovery or hold a party liable for a harm that is unrealized or
has not manifested at the time of the filing.
The idea is: if you are doing something that is reckless you may be liable of negligence goes to
duty of care
Problem p. 255
In this instance, the medical malpractice will not probably cause any harm whatsoever.
b/c the P only has up to 16% chance of the obstruction, this means that it is unlikely to
occur and her claim would fail due to a lack of causation under the preponderance of
the evidence standard of proof. In a minority jurisdiction, this P might obtain up to 16%
of future harm.
5. Loss of Chance
Lord v Lovett p. 255
Issue: Whether the lower court erred when it dismissed the Ps loss of opportunity action
against the Ds
Holding: We hold that a P may recover for a loss of opportunity injury in medical malpractice
cases when the Ds alleged malpractice aggravates the Ps preexisting injury such that it
deprives the P of a substantially better outcome
Fundamental difference between this case and previous one: she already has a harm not that
it could possibly happen. Their negligence created the harm

Lost-opportunity Doctrine Questions

(1) Whether it is limited to only those whose lost opp is 50% or less, or also extends to
those w a greater than 50% but less than 100% chance, awarding the latter less than a
full recovery;
(2) whether persons with a lost opportunity to avoid harm who have not yet siffered any
harm can recover before the harm occurs
(3) whether persons deprived of an opportunity of avoiding harm who nevertheless do not
suffer the harm may recover for the lost opportunity; and
(4) whether to impose a threshold percentage of lost opportunity before P may recover any
damages.
Reasonable Foreseeability
III. Proximate or Legal Cause
Proximate Cause:
A cause that is legally sufficient to result in liability; an act or omission that is considered in law
to result in a consequence, so that liability can be imposed on the actor.
Principle of Liability
Every person is liable for the consequences of his own acts. He is thus liable in damages for the
proximate results of his own acts, BUT NOT for remote damages.
Palsgraf v Long Island RR Co p.261
Issue: Whether a duty exists between the LIRR and Mrs. Palsgraf by which the LIRR would be
held liable had it breached that duty by its negligence
Cardozo: cast this problem as one of duty & Foreseeability
Zone of Danger if it is too far removed from foreseeability
Andrews: Direct Causation & Foreseeability
Sequence of events
If you commit this act you have a sequence of events that you should be held liable for
Holding:
Judge Cardozo: The issue is that the D was neither negligent nor did the D owe Mrs. Palsgraf a
duty.

Judge Andrews (Dissent): The issue was one of proximate cause and that D is liable to all
persons whose harm is from an unbroken, natural sequence of events started by the Ds act,
w/o the intervention of external forces.
Foreseeability Test:
A negligent D is liable for all of the general kinds of harms he foreseeable risked by his
negligent conduct and to the class of persons the D put at risk by that conduct.
Conversely, the D is not the proximate cause of, and not liable for unforeseeable
consequences.
Language of Foreseeability
The D must have been reasonably able to foresee the kind of harm that was actually
suffered by the P
The D is not liable merely b/c he could foresee harm; the harm must be the kind that he
should have avoided acting more carefully.
Problems p270
A. Leaping Lord:
Cardozo likely hold that he had a duty toward the P
Andrews: would have agreed that he had such a duty and likely found it even easier to find
proximate cause on the Ps claim against him than he did on her claim against the railway. The
consequences of his behavior (if considered a breach of duty) were less surprising
B. Contract failure due to knee injury
Cardozo duty only to the leaping passenger. If he was injured there would be no doubt about
the Ds duty owed to him. Even Cardozo mentioned at the end of the opinion, that there might
be a need to find proximate cause if an injury was too remote.
Andrews would just go directly to the issue of the proximate cause and not waste his time
with proximate cause
Direct Cause
In re Plemis
Issue:
Whether the manner and extent of the harm of the explosion and destruction of the
ship was foreseeable to a reasonable person thus holding the D negligent
Whether an act is negligent it is relevant to determine whether any reasonable person
would foresee that the act would cause damage

Bankes: Given the breach of duty which constitutes neg. andthe damages, the anticipations of
the person whose neg act produced the damage appear to me to be irrelevant
Scrutton: Once the act is neg, the gact that the exact operation was not foreseen is immaterial.
Holding: The neg conduct (dropping the plank) was the proximate cause of the injury (fire) even
though the Ds could not have anticipated (foreseen) the exact operation of the harm
Are there any intervening circumstances if not defendant is liable
Direct Cause Test: (Looks just like but for causality)
Ds Negligent Conduct

Intervening Act
Normal or foreseeable

ps Injury

Laureano v Louzoun
Issue: Whether the lower court erred when it granted the Ds motion for SJ on the grounds that
the failure to provide heat and hot water was not the cause of Ps scalding following the
banging together of two pots
Holding: The Ds conduct gave rise to the Ps attempt to provide a substitute supply of heat.
[Yet] the intervening act of banging one pot against the other brought about the Ps injuries
Problem:

Under the direct cause test, there is a proximate cause prob when the ships owner
dues. The conduct of the servants moving the planks was an addl but-for cause in the
chain of causation, involving independent actions (not pre-ordained by the other partys
negligence) that intervened between the hypothetical Ds conduct and the Ps harm
The direct cause test makes it more difficult to sue multiple independent tortfeasors
whose neg combined to cause the harm

But For if they dont do X the P would not have been harmed

Direct Cause Because of Ds act there is a negligence. If there is an injury without an

intervening act.
Problems with Interpretations
Court sometimes uses but-for and proximate cause as the same thing
Proximate causation what is in close vicinity tries to
What we need to keep in mind: we have to prove two things
1. That D was the (legal) but-for cause (actual cause)
2. Proximate cause: direct cause test, foreseeability test, substantial factor test
Must Prove:
1. Duty
2. Breach
3. Causation:
a. Actual Cause
b. Proximate Cause
Different tests for both a & b
4. Damages

Foreseeability test:
The D must have been reasonably able to foresee the knid of harm that was actually suffered by
the P
The D is not lieable merely b/c he could foresee harm; the harm must be the kind that the
Tieder v Little
Issue: Whether the trial court erred when it concluded as a matter of law that the Ds alleged
negligence was not the proximate cause of the death of the Ps decedent
Holding: The complaint sufficiently alleges the proximate cause elemet as to D little and the
record raises genuine issues of material fact w/r/t proximate cause for D, U of Miami
Duty (Architect): Duty to design correctly
Duty (School): that it was maintained properly & erected properly
Duty (drivers): To keep others safe
Standard of Care: Reasonable people under the circumstances
Proximate Cause of the Harm:

Architect: chain of events was not foreseeable, but collapsing wall was
Standard of Care: Reasonable person who is an architect not special skill
Were the architect & the school responsible for the proximate cause of harm?
Florida Law
General Rule: To constitute proximate cause there must be such a natural, direct and
continuous sequence between the negligent act *or omission+ and the Ps injury that it can be
reasonably said to be that but-for the negligent act *or omission]] the injury would not have
occurred.
Exception: Where 2 causes concur to bring about an event in fact, either one of which would
have been sufficient to cause the identical resultA Ds conduct in an action for personal
injuries is considered a cause-in-fact of the event if it was a material and substantial factor in
bringing it about
If you bring in direct causal test cant bring in multiple tortfeasors each tortfeasor together
was responsible for the harm
Court says unless it is so clear it is the jurys decision
Wrongful Death v Survival
Wrongful-Death: A lawsuit brought on behalf of a decedents survivors for their damages
resulting from a tortious injury that caused the decedents death.
Survival: A lawsuit brought on behalf of a decedents estate for injuries or damages incurred by
the decedent immediately before dying
Most states allow either or both actions to be brought.
A few jurisdictions require an election between the two
A few have merged the causes of action into one
All have some provision to prevent double recovery so that, for example, both the
estate and the widow would not recover all of the lifetime earning of the decedent
Proximate is designed to protect the Ds from tort liabl for results which, although caused-in-fact
by the Ds negligent act or omission, seem to the judicial mind highly unusual, extraordinary, or
bizarreor beyond the scope of any fair assessment of the danger created by the Ds neg.
Unforeseeable Consequences:
Eggshell P Rule: doctrine that the D is liable in tort for the aggravation of a Ps existing injury or
condition, regardless of whether the magnitude of the injury was foreseeable.

Crankshaw v Piedmont Driving Club

Issue: Whether or not the negligent serving of unwholesome food to Miss Harris was the
proximate cause of Ps injury
Walk Through it:
Proximate cause of harm :
But for test - but for serving bad shrimp she would not have thrown up (would there be a butfor test)
Foreseeable no
Holding: Damages must flow from the legal and natural result of the act doneThe ques. Of
proximate cause is a jury ques. UNLESS the facts are palpably clear and indisputable then the
court can rule as a matter of law a jury could not reasonably conclude that the Ps injury was
proximately caused by the Ds neg. in serving unwholesome food.
Problems p.280:
A. There would be a lack of proximate causation here b/c the rule was in place for drowning,
not for contracting illness. Because he is not suing for drowning, there is a lack of proximate
cause. Cant use the policy to prove negligence. Have to bring up that they didnt treat the pool
properly.
C. Jump starting the car constitutes independent, intervening actions between the poor design
of the dormitory and the coed being crushed
D. the boys jump-starting the car would not have a proximate cause defense under the direct
cause test. Everything that happened after their negligence in failing to control the car just
involved application of the laws of physics rather than any independent intervening actions.
D. Substantial Factor Test
Brisboy v Fiberboard paper Products Corp
Issue: Whether the trial court erred when it denied the Ds motion for a directed verdict on the
grounds that the Ds negligent conduct was a substantial factor in bringing the disease which
led to the decedents death.
Competing battle of experts Ps say it was asbestos and the Ds say it was cancer
Holding: Evid was sufficient to permit reasonable minds to conclude that the P died, at least in
part, due to the development of asbestosis in his lungs as a result of his inhalationof asbestos
fibers during his work career.We find that there was suff. Evid in Ps favor to withstand a
motion for a directed verdict

More likely than not that is all they are saying

American Truck Leasing v Thorne Equipment Co.
Issue: Whether
Holding: Because the negligent accumulation of combustible trash was too far removed from
the damages to the Ps property and because those damages to the Ps property and becaue
those damages were caused by the intervening act of the demolition contractor, it cannot be
said legally or factually that the alleged neg. of the D was a substantial factor in causing harm to
the P.
RST 433 p. 286 (write it down)
The following considerations are in themselves or in combination with one another
important in determining whether the actors conduct is a substantial factor in bringing
about harm to another:
a) A number of other factors which contribute in producing the harm and extent of the
effect which they have in producing it;
b) Whether the actors conduct has created a force or series of forces which are in
continuous and active operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces for which the actor is not
responsible;
c) Lapse of time
Why Gross was put out of the case: (b) continuous and active & (c) lapse her fire was put out
p. 287 Comingling of test There are courts that use more than one test at the same time
problems p. 287 (no.4)
Direct Cause test: the elevator shaft was the intervening act
Foreseeability test:
The substatntial factor test was not met under the facts in Thorne. It would seem that a similar
result would exist under the direct cause test. It appears only the independt actions of the
demolition crew were the direct cause of the Ps property

Intervening & Superceeding

Rule

Liab attaches to the Ds conduct if the intervening act is a normal or foreseeable consequence
of the situation created by the Ds conduct
Liab does not attach if the intervening act is extraordinary under the circumstances, not
foreseeable in the normal course of events, or independent of or far removed from the Ds
conduct.
Test

If the D should have foreseen the possibility that the intervening cause might occur or if
the kind of harm suffered by the P was foreseeable (even if the intervening cause was
unforeseeable) the Ds conduct will be the proximate cause of the Ps injury.
But if neither the intervening cause nor the harm was foreseeable, the intervening cause
will be a superseding cause and relieve the D of liab.
Causation

Actual (Cause in Fact)

B/F

S/F

Proximate

D/C

4See

S/F

Must look to the facts and walk through the tree!!!!

Price v. Blaine Kern Artista, Inc.
Issue: Whether the unknown assailants push that caused the P to fall to the ground was an
intervening and superseding cause of the Ps injuries
SJ no genuine issue of material fact (no reason to go to the jury b/c there is nothing to
protest)
RST 302 Risk of Intentional or Criminal Conduct
An act or an omission may be negligent of the actor realizes or should realize that it
involves an unreasonable risk of harm to another through the conduct of the other or a
3rd person which is intended to cause harm, even though such conduct is criminal.
RST 449 Tortious or criminal acts
If the likelihood that ta third person may act in a particular manner is the hazard or one of the
hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally
tortious, or criminal does not prevent the actor from being liable for the harm caused thereby

RST 448
CAVEAT TO RST 449: The act or a third person in committing an intentional tort or crime
is a superseding cause of harm to another resulting in therefrom, although the actors
negligent conduct created a situation which afforded an opportunity to the third person
to commit such a tort or crime, UNLESS the actor at the time of his negligent conduct
realized or should have realized the likelihood that such a situation might be created,
and that a third person might avail himself of the opportunity to commit such a tort or
crime
Holding: While it is true that criminal or tortious 3rd party conduct typically severs the chain of
proximate causation between a P and a D, the chain remains unbroken when the 3rd partys
intervening intentional act is reasonably foreseeable.
McCane-Sondock Protection Systems v Emmittee
Issue: Whether the jury verdict in favor of the P is against the weight of the evidence that the
Ds failure to properly install a burglar alarm was the proximate cause of the Ps loss
Holding: We hold that these facts constitute some evidence that the Ps loss was the proximate
result of the Ds failure to properly install the alarm equipment
Special Duty Rules
I. Introduction
Create a set of rules for when a D has a duty to a P that goes above and beyond
Comes from the foundation that people generally do not hold a duty to act
II. The Duty to Act
Duty to Act
Rule: No general duty to act. In other words, a D will not be held liable, generally, for
failing to act.
EXCEPTION: Unless there is some special relationship b/t the D and the P, the D is not
liable for failing to render assistance to the P.
Exceptions Requiring an Affirmative Duty
Common carriers and innkeepers: duty on certain professions to furnish assistance to
patrons
Business relationships: duty of care to anyone who maintains business premises

D is involved in the injury: D will have a duty of warning and assistance if the danger or
injury is due to the Ds own conduct or to an instrument under the Ds control
Joint venture: When 2 persons are engaged in a common pursuit (joint ventures) some
courts have imposed a duty of warning and assistance on each person for the welfare of
the other.
Assumption of duty: if a D voluntarily begins to render assistance (even of the D was
under no legal obligation to do so), the D must proceed w/reasonable care
Duty to control others: D has undertaken to control third parties who subsequently
injure the P. The duty may arise from a special relationship b/t the D and the P or b/t the
D and the third party.

Remember you may have an affirmative duty to act but if acting is unreasonable no duty
attaches have to be able to save yourself first if cant it is unreasonable
Yania v. Bigan
Issue: Whether the trial court erred when it dismissed the Ps complaint finding that the D was
not negligent for:
1) Urging, enticing, taunting, and inveigling Yania to jump into the water;
2) Failing to warn the P of a dangerous condition on the land; and
3) Failing to rescue the P after he jumped into the water
Holding: The complaint does not aver any facts which impose upon the D the legal
responsibility for placing the P in the dangerous position in the water and, absent such legal
responsibility, the law imposes on the D no duty to rescue.
Notes: #2 raises the issue of a property owner and has a dangerous condition if it is glaringly
aware is there still a duty to warn? No.
Is this a joint venture?
United States v. Lawter
Issue: Whether the D had a duty imposed following the commencement of the rescue that was
breached resulting in the death of the Ps wife
Holding: Once the D affirmatively took over the rescue mission, excluding others therefrom,
and thus not only placed the deceased in a worse position than when it took charge, but
negligently brought about her deathThe law imposes an obligation upon everyone who
attempts to do anything, even gratuitously, for another not to injure him by negligent
performance of that which he has undertaken.

Note: If you start a rescue you trigger your duty.

Emergency Doctrine: what do you do in a sudden emergency?
Lundy v Adamar of New Jersey, Inc.
Issue: Whether the D owed a duty to provide medical care to the P, and if so, what was the
duty owed

Trop Worlds duty is at most to provide basic first aid to the patron when the need
becomes apparent and to take reasonable steps to procure appropriate medical care.
NJ Good Samaritan Act who in good faith renders emergency care at the scene of an
accident or emergency to the victim, or while transporting the victim thereof to a
hospital or other facility, shall not be liable for any civil damages as a result of any acts
or omissions by such person in rendering the emergency care.

Rule: Generally, a bystander has no duty to provide affirmative aid to an injured person, even if
the bystander has the ability to help
Exception: The existence of a relationship between the victim and one in a position to render
aid may create a duty to render assistance.
RST 314 A Special Relations Giving Rise to Duty to Aid or Protect LOOK UP
RST 324 Duty of One who takes charge of another who is helpless LOOK UP
One who, being under no duty to do so, takes charge of another who is helpless
adequately to aid or protect himself is subject to liability to the other for any bodily
harm caused to him by
a) The failure of the actor to exercise reasonable care
Holding: Nurse Slusher had not preexisting duty to the P apart from her role as an employee of
TropWorldthat preexisting dutywas limited to summoning aid and, in the interim, taking
reasonable first aid measures.
Good Samaritan Law should we make a law for people to help others if it is reasonable?
Dorm safety hypo Tanya was raped and murdered in her dorm by Ellis, how the individual got
in is unknown. Doe the school have a duty to protect Tanya?
What we need to know
o What precautions were taken to keep people our
o How were they implemented

o What is the status of the individual who committed the crime?

o How did the individual enter the building?
o What was the relationship between the two people
What if someone propped the door open, is the univ responsibility?
o Comes back to learned hand formula what could they have done besides just
posting a sign?
o What is the current custom at schools?

Righteous university hypo: Mary has fallen in with the wrong crowd & Mary starts escorting to
pay for drugs the university upholds itself to a higher standard. Can the parents sue the Univ
for Mary going down the wrong path?
Even though they have a higher standard of care, you cant hold them to it
4. Duty ends at Expiration of Special Relationship
Boyette v TWA
Issue: Whether the trial court erred in granting the Ds motion for SJ on the negligence C/A in
the Ps wrongful death action
Holding: the Ds duty as imposed b/c of its status as a common carrier ended when the Ps son
was safely transported to the destination. New duty attached when the agent of the D
proceeded to chase the decedent who stole a golf cart in the airport.
B. Rescuers
1. The Rescue Doctrine
McCoy v American Suzuki Motor Corp
Issue:
(1) Whether the rescue doctrine may be involved in a product liability action
(2) Whether a P asserting a claim as a rescuer under the rescue doctrine must still prove his
injuries were proximately caused by Ds allegedly tortious conduct
(3) Whether the alleged fault of this D was the proximate cause of this Ps injuries
Was this the trooper fault? Could be held negligent for leaving driver would have had to
move over if troopers lights were on if did not neg per se
Rescue Doctrine:

Allows an injured rescuer to sue the party which caused the danger requiring the rescue
in the first place.
Rescuer Status Elements:
For rescuer status, one must demonstrate:
1) the D was negligent to the person rescued and such negligence caused the peril or the
appearance of peril to the person rescued;
2) the peril or appearance of peril was imminent
3) a reasonably prudent person would have concluded such peril or appearance of peril
existed; and
4) the rescuer acted w/reasonable care in effectuating the rescue.
What if it was the first accident or the 100th shows knowledge that product would
foreseeable cause harm
Holding:
Yes the rescue doctrine may be invoked in P/L cases, requiring the rescuer-P to prove
that the Ds conduct was the proximate cause of his injuries
The rescue doctrine imposes a duty on the tortfeasor towards the rescuer on the basis
that is foreseeable that a person will come to the rescue of a person placed in danger by
the tortfeasors conduct.
The doctrine also negates the presumption that the rescuer assumed the risk of injury
by undertaking the rescue as long as he did not act rashly or recklessly.
Is the connection too remote? Is this too remote of a harm?

Questions:
1. Is there a duty? Is there a legally established relationship?
2. Causal actual & proximate
Actual factual cause without this fact being present, the D would not be held liable there is
not but-for cause without this action
Proximate legal cause are we going to hold them responsible legally? Takes into account
public policy demands scope of liability was it foreseeable, intervening act
Proximity that which is related closer in time, are they closely related in time to the accident;
foreseeability that which is related in time and space
Moody v Delta Western

Issue: Whether the lower court erred when it adopted the Firefighters Rule for Alaska and
granted SJ to the D
Firefighters Rule: Firefighters and police officers who are injured may not recover based on the
negligent conduct that required their presence.
EXCEPTION: The doctrine bars only recovery for the negligence that creates the need for the
public safety officers service . . . The rule does not apply to negligent conduct occurring after
the police officer or firefighter arrives at the scene or to misconduct other than that which
necessitates the officers presence.
Public Policy do not want to deter people for calling for help; would clog the courts; would
create double taxation
Holding: The firefighters rule does apply in Alaska and the lower court did not err in granting SJ
to the D. The reasoning for this decision is rooted in public policy.
NOTE: It must have happened before because they had policy regarding removing their keys, it
was policy, so they were on notice that this could happen this was foreseeable. Had prior
knowledge actual and constructive knowledge, on notice
Some courts have said if it is criminal, may be held liable
Primary Rationales for the Rule:
1. Double taxation for the services which emergency personnel are already paid to perform
2. Chilling effect on calling emergency personnel
No duty placed upon or between the person who caused the negligence and the person who
responds.
Problems, p. 317
A. the firefighter rule is a no-duty rule only conceptually relevant to neg claims; if he sued the
thief for neg. it would be for conduct that arose after the officer had already been summoned
to the scene.
B. With volunteer public safety, there is no risk of double-taxation or overcompensation b/c the
victim is not being paid to encounter any risks of the job. Theyre not getting paid at all. The
question is whether a court should continue to recognize the doctrine relative to a volunteer
based upon the second justification the risk of chilling the call for help. There is no answer

Snellenberger v Rodriguez
Issue: Whether the lower court erred when it granted SJ to D when it concluded as a matter of
law that there was a lack of proximate cause (not foreseeable) that Ds conduct would result in
the type of harm suffered by the Ps decedent
Holding: we conclude that while the rescue doctrine may apply to the circumstances but the
injury that the Ps decedent suffered was not foreseeable
NOTE: even though you invoke the rescue doctrine you still have to prove proximate cause
Problem, pg. 319
Even if you invoke the rescue doctrine the firefighter rule kicks in
Though it was not raised by the D, the Firefighter Rule would seem to deny any duty of
care. The D driver [Rodriquez] was being sued for her neg. that necessitated the
summoning of the police officers to the scene. Even had there been proximate cause,
application of this doctrine should have defeated the claim by negating the fundamental
element of duty.
Emerich v Philadelphia center for human development
Issue:
1) Whether a mental health professional has a duty to warn a 3rd party of a patients threat to
harm the 3rd party
2) if there is a duty what is the scope of the duty
3) whether the lower court erred with its judgment on the pleadings
General Rule:
Rule: a person neither owes a duty to control the conduct of another, nor to warn those
endangered by such conduct.
Exception:
Where the D stands in some special relationship to either
(a) the person whose conduct needs to be controlled
OR
(b) in a relationship to the foreseeable victim of that conduct
RST 315 General Principle

There is no duty so to control the conduct of a third person as to prevent him from causing
physical harm to another unless
a) a special relation exists between the actor and the third person which imposes a duty upon
the actor to control the third persons conduct, or
b) a special relation exists between the actor and the other which gives the other a right to
protection.
Holding:
1) We find that a special relationship b/t a mental health professional ad his patient may, in
certain circumstances, give rise to an affirmative duty to arn for the benefit of the intended
victim.
2) We find that in PA . . . the professional bears a duty to exercise reasonable care to protect by
warning the 3rd party against such danger
3) We find that the Ds warning was reasonable as a matter of law. The warning was discreet
and in accord with preserving the privacy of the Ds patient to the maximum extent possible
consistent with preventing the threatened harm to the P-decedent.
Look at this like a transitive math problem A has a duty to B, and also has one to C because of
As duty to B without the duty to B, there would be no duty to C. The law creates a duty.
Bradshaw v Daniel, M.D.
Issue: Whether a physician has a legal duty to warn a non-patient of the risk of exposure to the
source of his patients non-contagious disease Rocky Mountain Spotted Fever.
What about contagious diseases? Yes, duty to warn those who may foreseeably contract the
disease.
Who must they warn? Immediate family, other medical staff that will come into contact
Who must be warned and how must warning be put into effect? Depends upon the severity of
the harm. Is it an immediate health risk?
Holding: The physician had a legal duty to warn the non-patient of the risk of exposure to the
source of the patients non-contagious disease
Notes & problems, p. 333
(2) The court in Bradshaw seems to limit the duty to warn to immediate family members of the
infected patient, the risk of harm to those who lived in the same apartment complex is surely
just as foreseeable.

Recognizing an affirmative duty divorced from a special relationship with the sactual source fo
the harm and grounding it instead on mere notions of foreseeability turns the C/L tradition on
its head and creates uncertainty in a host of other scenarios about whether a duty to warn
premised solely on foreseeability should exist.
Otis Engineering Corp v Clark
Issue:
Whether the law imposes any duty upon the D under the evidence presented to the Ps
who were killed by an intoxicated employee
Whether the trial court erred when it granted the Ds motion for summary judgment.
Awareness: Testimonial Evidence
Co-workers (direct evidence)
o Pyle
o Sartain
o Roy
Physician (expert evidence)
o Petty
Other (scientific evidence)
o Bac
Marshalling of evidence to prove your case direct evidence, expert evidence, scientific
evidence
Analysis: what could they have done Learned Hand you see the court engage in this analysis
Corbin: actual or constructive knowledge of dangerous condition
Leppke: employers affirmative action enough to raise duty
Brockett: supplying alcohol does not trigger duty . . . affirmative act of placing person in car and
directing him to drive home does
Standard of Duty/Care
When, because of an employees incapacity, an employer exercises control over the employee,
the employer has a duty to take such action as a reasonably prudent employer under the same
or similar circumstances would take to prevent the employee from causing an unreasonable
risk of harm to others. This is not an absolute duty.
Holding: the trier of fact . . . should be left free to decide whether the D acted as a reasonable
and prudent employer considering the circumstances:

1)
2)
3)
4)
5)

Nurses aid station

Phone call to spouse of intoxicated worker
Another employee driving intoxicated worker home
Dismissing intoxicated worker earlier
Foreseeability of harm

A. Negligent Infliction of Emotional Distress

1. From Impact Rule to Zone of Danger
Robb v The Pennsylvania Railroad Co
Issue: Whether the P, who was within the immediate zone of danger, can recover for the
physical consequences of fright caused by the Ds neg., when there was no contemporaneous
bodily impact
Holding: We decline to adopt the impact rule . . . We hold . . . that where negligence
proximately caused the fright, in one w/in the from that negligence, which in turn produced
physical consequences such as would be the elements of damage if a bodily injury had been
suffered, the injured party is entitled to recover
Categories of Recovery for NIED
Direct Victim Recovery
o Zone of Danger (maj)
o Foreseeability (min)
o Impact Rule (min)
Bystander Recovery
o Zone of Danger (maj)
o Foreseeability (Dillon Rule) (min)
Zone of Danger no different than Cordozo if you are in the zone of danger you can recover
does not answer:
1. how far the zone extends
2. scope of liability just the zone
-The closer you are, the more inside the zone you are
Direct Victim Recovery
Zone of Danger (Risk of Impact Rule) recovery allowed for mental distress if the P was at risk
of physical impact and suffered physical manifestation of the distress
EXCEPTIONS: mishandling of corpses or erroneous notification of close family members death

Foreseeability Test recovery allowed for all foreseeable Ps who suffer mental distress
Bystander Recovery
Zone of Danger
o (Some) Recovery based on witnessing negligently inflicted harm or fear for own
safety
o (Some) Only based upon Ps fear for own safety

Foreseeability Test:
o Recovery permitted if P was near accident
o Sensory and contemporaneous observance
o Closely related to direct victim

Dillon v Legg,
Issue: Whether the trial court erred when it granted the Ds motion on the pleadings to deny
the P, mother, recovery because she was not within the zone danger
Holding: We see no good reason why the general rules of tort law . . . Long applied to all other
types of injury, should not govern the case now before us . . .
Natural Justice
Justice as defined in a moral, as opposed to a legal, sense.
Since the chief element in determining whether D owes a duty or an obligation to P is the
foreseeability of the risk, that factor will be of prime concern in every case. Because it is
inherently intertwined with foreseeability such duty or obligation must necessarily be
adjudicated only upon a case-by-case basis. We cannot now predetermine Ds obligation in
every situation by a fixed category.
Factors to be considered:
Whether the D should reasonably foresee the injury to the P, or, in other terminology,
whether the D owes the P a duty of care, the courts will take into account the following
factors:
1. Whether the P was near the scene of the accident (proximity)
2. Whether the P suffered direct emotional impact from sensory and
contemporaneous observation of accident (observation)

3. Whether the P ha a close family relationship to the victim of the accident

(related)
Maginot Line
Reference to the Maginot Line is used to recall a strategy or object that people hopw will prove
effective but instead fails miserably
Consanguinity degree of relation
Dillion Factors + One
1. Whether the P was near the scene of the accident (proximity)
2. Whether the P suffered direct emotional impact from sensory and contemporaneous
observation of accident (observation)
3. Whether the P has a close family relationship to the victim of the accident )related)
4. Whether the victim was severely injured (death or serious injury) (adopted by some
courts)
(Dillion factors are 1-3, some courts for 4th element only)
ZOD

Impact

Dillon

Grotts v Zahner
Issue: Whether the P sufficiently satisfies the Dillon factors to recover under a NIED C/A
Holding: We now conclude that standing issues concerning closeness of relationship b/t a
victim and a bystander should . . . be determined based upon family membership, either by
blood or marriage. Immediate family members of the victim qualify for standing to bring NIED
claims as a matter of law . . . B/c she was not a member of his family by blood or marriage, we
hold that she does not enjoy the type of close relationship required under Eaton.
Dissent: While this rule [requiring a relationship by blood or marriage] will be predictable, it will
permit some people to pursue this claim who have no close relationship, and yet prohibit
others who have a loving, close relationship with someone injured . . . such as anyone living in
a non-traditional relationship or one not legally recognized.

Problems p.355
A. It depends. In most circumstance, however, the ZOD or Dillon rule will be more liberal in
application than the older impact rule.
B. The P in Grotts certainly could have recovered under the ZOD rule. She was in the same
vehicle with her fiance who was killed in the accident. Ironically, she may have even been able
to recover under the older impact rule given the fact that the P would have been
unquestionably jostled in the accident. The case illustrates how the broader more liberal
Dillon test is ineffective in cases lacking the familial bond with another primary victim.
C. It would seem to be at least a good argument that when a state recognizes same-sex civil
unions that it has thereby given the legal blessing of a recognized close reltionahip sufficient to
trigger Dillons duty.
Boyles v. Kerr
Issue: Whether NIED constitutes an independent C/A in Texas
Holding: We hold that there is no general duty in Tx not to negligently inflict emotional distress.
a claimant may recover mental anguish damages only in connection with Ds breach of some
other legal duty . . . We reverse the judgment of the court of appeals in her favor. However, in
the interest of justice, we remand for a new trial.
Jarrett v Jones
Issue: Whether the trial court erred in granting SJ to the D b/c it applied the wrong standard to
the P?
Holding: Yes, the trial ct erroneously concluded that the P was a bystander when the P was
actually a direct victim and should be allowed to pursue the case to trial
Zone of Danger
A P may recover for emotional distress provided: (1) the D should have realized that his
conduct involved an unreasonable risk of causing the distress, and (2) the emotional
distress or mental injury is medically diagnosable and is sufficiently severe as to be
medically significant. ID. the Court limited its holding to direct victims of a Ds
negligence, expressly declining to discuss the standard to be applied in bystander cases,
where the P claims emotional distress solely from observing injury to a third party
caused by Ds negligence.
Direct v Bystander
Direct victims are persons directly involved in the accident whose ed is either caused by
fear for their own safety or caused by the suffering of another

Bystanders, in contrast, are persons not directly involved in the accident, but whose
emotional distress is caused solely by observing acts that result in injury to a third party,
rather than from the Ps own personal involvement.

RsT 313
A P will be permitted to recover for emotional distress provided: (1) the D should have realized
that his conduc involved an unreasonable risk of causing the distress; and (2) the ed
ZOD (Asaro)
Specifically, the P must prove that the D should have realized
Hypo Skier
Skier v Rescuer
In order to prevail in a c/a for negligence, the P must demonstrate the D had a duty of care that
the D breached that caused injuries.
To prove that the D had a duty the D had no general duty to stop and act unless there is a
special relationship and here there is b/c the expert began and cannot leave a p in worse off
position than when he began, D should have taken the care that a RPPSS rescuer should have.
2nd element Breach - Once the D began care, he breached when he delayed the rescue
Causation But for the D moving the P off the path, and therefore another rescuer could not
come to the Ps aid
Proximate cause D was the direct cause of the frostbite, there was no intervening cause,
substatntial factor him dragging him off the path meant no one would see him, foreseeability
it was foreseeable. There were damages.
Remember just b/c there is duty does not mean they were the actual cause or proximate
cause of the harm.
Economic Duty
532 Madison Avenue
Issue: Whether the D is liable under a C/A for neg when the Ps sole injury is economic

The Appellate Div affirmed dismissal of the Goldberg Weprin complaint concluding that
absent property damage, the connection b/t Ds activities and econ losses of the
purported class of Ps was too tenuous and remote to permit recovery on any tort
theory.

The court however reinstated the neg . . . claims of Ps 532 Madison and 5 th Avenue
Chocolatier holding that the Ds duty to keep their premises in reasonable safe condition
extended to those business in such close proximity that their negligent acts could be
reasonably foreseen to cause injury.
Holding: We conclude that Ps neg claims based in econ loss alone fall beyond the scope of the
duty owed them by Ds and should be dismissed.
Problems p. 366
A. While the goalie who suffered physical injury could sue the driver for any and all of his
damages (physical, emotional, and economic), his employer only suffered economic loss and
therefore cannot recover. The driver owed it no duty to avoid such losses.
B. The little travel bookshop suffered property damage, however slight, and therefore is not
limited by the mere economic rule. Further its economic losses need not arise from the
property damage. So long as Ds negligence that caused the property damage is also to blame
for the economic losses, the bookshop should have no impediments to full recovery. (Again,
this shows the potential arbitrary application of the rule).
C. The problem is designed to mirror the BP accident in the Gulf of Mexico. Most of the
business could not recover under the C/l due to application of the mere economic harm rule.
(Fisherman, however, have been held to be not bound by this rule as discussed in note 5. This is
really not a principled exception to the mere economic harm rule as much as a rule arising out
of empathy for their plight.)
If you just look at the rule the fisherman should not be allowed to recover, exception if the
boat is in the harbor and gets oil on it. Think about beachside restaurant that has dock and oil
gets on timber there are ways around the rule.
Limitations on Duty
1. Wrongful-pregnancy action: a lawsuit brought by a parent for damages resulting from a
pregnancy following a failed sterilization (also wrongful-conception action)
2. Wrongful-birth action: a lawsuit brought parents against a doctor for failing to advise
them prospectively about the risks of their having a child with birth defects
3. Wrongful-life action: a lawsuit brought by or on behalf of a child with birth defects,
alleging that but for the doctor-defendants negligent advice, the parents would not
have conceived the child or, if they had, would have aborted the fetus to avoid the pain
and suffering resulting from the childs congenital defects. (Most jurisdictions reject
these claims).
Johnson v University Hospitals of Cleveland

Issue: Whether the parent of a normal, healthy child born subsequent to a negligently
performed sterilization operation, may recover, as an element of damages, the expenses of
raising a child.
Holding: We find the limited damage theory is the most persuasive rule. Allowing a jury to
award child-rearing costs would be to invite unduly speculative and ethically questionable
assessments of such matters as emotional effect of a birth on siblings as well as parents, and
the emotional as well as pecuniary costs of raising an unplanned and perhaps unwanted child in
varying family environments (too speculative)
No Recovery (Neveda)
The birth of a normal child is a benefit in itself.
Benefits Rule:
Child rearing costs are a direct financial injury to parents, no different in immediate effect than
the medical expenses resulting from wrongful conception and birth. Juries are permitted to
calculate the economic costs of child rearing by weighing the expense against the benefit
Limited Damages (Maj):
Denies all child rearing costs b/c they are: (1) children are a benefit to parents; (2) windfall to
parents; (3) too speculative; (4) protect mental and emotional health of child (emotional
bastard); (5) would be allowing wrongful damages
Full Recovery:
In a wrongful pregnancy action mitigation of child rearing expenses (i.e. abortion or adoption) is
not necessary since a tort victim has no duty to make unreasonable efforts to diminish or avoid
prospective damages

Duty: failed to perform as a reasonably prudent doctor would, child was born but-for doctors
lack of success, direct-cause was foreseeable that she would be pregnant with failed procedure,
(was sexual intercourse a substantial factor? Was it an intervening act? Was she contributory
negligent?) Was the doctor responsible for the harm? Yes. Not contributory negligent b/c the
doctor knew what the procedure was for, and failed.
Nelson v Krusen
Issue: Whether the lower court erred in granting SJ on the wrongful birth and wrongful life
claims
Holding: wrongful birth reversed, affirmed SJ of the wrongful life
Concurrence: The claim of the parents arguable contains all the elements for a prima facie case
in neg.; the claim of the child does not . . . Courts examining wrongful life suits have had

difficulty with virtually every element of the C/A [especially the injury] . . . [t]o determine
whether Mark Nelson has suffered an injury in fact . . . his life without phys. Impairment must
be compared to the alternative of nonexistence.
Problems, p.377
A. While the parents in this problem did not get what they bargained for a healthy girl they
also did not face the crushing blow of having a disabled child when they were told they would
have a healthy one. It should be a cause for celebration and not a cause of action. The parents
wanted a healthy child and received one.
B. Unlike a wrongful life claim where we would be forced to compare imperfect life versus nonexistence, no such damage quandary appears here. You can easily compare a normal, healthy
life versus one complicated and impaired with a severe brain injury. Here the drs neg has
caused the underlying injury. In other words, the drs neg has been the but-for cause of easy
cognizable physical, emotional, and economic injury.
VI. Duty Based Upon Victims Status
Sometimes see this as premises liability
Categories: Status of P
Trespasser: One who intentionally and w/o consent or privilege enters anothers property (no
duty owed to unforeseeable trespassers)
Licensee: An individual who enters the premises of the owner by permission, but for the
individuals own purposes (e.g. social guest), taking the premises of his host as he finds them.
Invitee: An individual who goes on the land in furtherance of the owners business.
Most jurisdictions have gotten rid of the distinction for those that still use them, your status
can shift according to the scope of your presence on the property itself.
1. Adult Trespassers
Ryals v US Steel Corp
Issue:
Whether the D was entitled to SJ under the appropriate std of care owed by the D to the
P as a trespasser who at the time of the injury was engaged in the crime of theft of the
Ds property.
Whether a landowner has a duty to an adult trespasses and if so what is the scope of
that duty

Holding: wrongfully entering the land - we hold that the duty owed by a landowner to an adult
trespasser who comes upon the land and is injured while committing a crime is the duty to not
intentionally injure such a trespasser.
Two categories of Trespassers:
Mere trespassers: landowner owes a duty to not wantonly injure
o Wanton: Unreasonably or maliciously risking harm while being utterly indifferent
to the consequences.
One who is acting recklessly is fully aware of the unreasonable risk he is
creating, but may be trying and hoping to avoid any harm
One acting wantonly may be creating no greater risk of harm, but he is
not trying to avoid it and is indifferent to whether harm results or not.
Wanton conduct has properly been characterized as vicious and rates
extreme in the degree of culpability.
Trespassers with Criminal Intent: landowners owe a duty to not intentionally injure
General Rule:
A land occupier owes a duty of care to a trespasser only after he or she has discovered
the presence of the trespasses
CAVEAT: The landowner owes no duty to a trespasser to make the land safe, to warn of
dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser
in any other way.
Rule:
C/L: trespasser took the property as it existed upon entry onto the land including
concealed artificial or natural dangers
Land occupier had no legal obligation to discover, remedy or even warn a trespasser of
such dangers. The only obligation was to refrain from willfully harming the trespasser (ie
spring guns)
2. Child Trespassers: The Attractive nuisance Doctrine
Bennett v Stanley
Issue:
What level of duty does a landowner owe to a child trespasser
Whether child trespassers should become another class of users who are owed a
different duty of care.

Holding: We resolve the question by adopting the attractive nuisance doctrine set forth in
RST 339. We also hold that an adult who attempts to rescue a child from an attractive
nuisance
Dissent:
Procedural Issue: Failure to preserve issue by properly raising it in trial court means that App
court should not have adopted the doctrine as it was not before the court
Substantive Issue: The maj holds, w/o citation . . . , that an adult may successfully invoke the
attractive nuisance doctrine if the adult suffered an injury rescuing a child the court should
have applied the rescue doctrine
Attractive nuisance Doctrine Elements: (natural elements do not count)
Knowledge of childrens presence
Maintenance of a potentially dangerous force
Exercise of care by the owner commensurate with the danger
RST 339
A possessor of land is subject to liability for physical harm to trespassing children caused by an
artificial condition upon the land if:
a) occupier knows or has reason to know that children are likely to trespass, and
b) the condition is one of which occupier knows or has reason to know and realizes or
should realize will involve an unreasonable risk of death or serious badily harm to such
children, and
c) children b/c of their youth do not discover the condition or realize the risk involved, and
d) the utility to the possessor of maintaining the condition and the burden of eliminating
the danger are slight as compared with the risk to children involved, and
e) the possess or fails to exercise reasonable care to eliminate the danger or otherwise to
protect the children
Exception to the trespasseers rule:
1) Frequent or Known Trespassers
2) Child Trespassers
Frequent or Known trespassers:
a) Frequent: actual or contrastive knowledge, an obligation to warn of hidden and serious
dangers known to the land possessor may be imposed.
1. conditions on land that ta trespasser would be expected to discover or inherent in the use of
the land -> no warning necessary

2. Known: )a) awareness of trespasser and (b) knowledge that trespasser is approaching an
artificial 9human-made) condition -> obligation to warn trespasser if there is danger of serious
bodily harm or death.
2. Child trespassers:
Trad view: trespassing children would be barred from recovery
Modern view: Turntable doctrine -> attractive nuisance doctrine -> child land entrant
doctrine ( child trespasser or attractive doctrine) (RST 339)
Problems, p. 397
A. This appears to be a classic attractive nuisance scenario. If so, the neighbors owed Peter a
duty of reasonable care. The one argument against this is if a treehouse 20 ft off the ground is
something the boy would have realized created a danger to him. Given his age, this argument
actually seems pretty compelling UNLESS Peter has some cognitive difficulties preventing his
awareness. The doctrine considers the actual knowledge of the child in question. Because the
facts do not mention any such personal issues, probably the attractive nuisance doctrine should
not apply and the gross negligence standard would govern the land owners potential liability.
B. While the horse may present a dangerous condition, other courts have generally held that
animals are not artificial conditions. The doctrine only applies to artificial conditions. Note
that even if the doctrine is inapplicable, liability is still possible through proof of gross
negligence against the plaintiff
Knorpp v Hale
Issue: Whether the trial court erred when it granted the Ds motion for a directed verdict on
the grounds that the P-decedent was a licensee and not an invitee
Holding: The decedent was a social guest of the landowners [thus a licensee]. He was not
expecting payment for cutting down the tree, and the evidence is that no one asked him
personally to do so, but that he volunteered to do so. There was no business relationship or
dealing in existence or contemplated between the decedent and the landowner.
Bartering is not enough to create an invitee standing, it is a social relationship not a business
one
Risk the risk is one that you have to warn of; in this case he created the risk
Only liable if with a reasonable inspection you can tell that the tree is rotting. If there is
evidence thereof you are put on notice.

Rule for licensee the owner of the premises has a duty to warn the licensee of any hidden
damages which are unknown to his guest but which the owner has knowledge, and to refrain
from injuring his guest willfully or wantonly.
Rule for invitee the owner of the premises has a duty to exercise reasonable care in keeping
the premises reasonably safe for use by the invitee.
His mothers argument b/c he was there for a purpose, it should change his status
Invitee
Licensee
1. Owner had actual or constructive
1. Condition created unreasonable risk of
knowledge
harm
2. Condition posed unreasonable risk of
2. Owner knew of condition
harm
3. Failure to exercise due care to reduce
3. Licensee did not know of condition
or eliminate risk
4. Failure to exercise ordinary care to
protect from the danger
4. Failure use such care was proximate
5. Owners failure was proximate cause of
cause of harm
harm
How to figure it out: Are they are a trespasser? Can have implied permission.
Are they an invitee? Business transaction?
Rule these two out in order to discover if they are a licensee
Richardson v The Commodore
Issue: Whether the trial court erred when it granted the Ds SJ motion on the grounds that the
Ds neither knew nor should have known of the condition of the ceiling
Holding: We conclude that the P generated a jury question on whether the defect in the ceiling
would have been discoverable upon inspection. We think material issue of disputer fact exist as
to whether reasonable care warranted an inspection of the plaster ceiling and whether such an
inspection would have alerted the Ds to the dangerous condition of the ceiling.
Trespasser not wantonly or reckless injure them
Licensee warn or make safe if you have knowledge
Invitee constructive knowledge of something you know or should have known
Status: invitee commercial relationship, even if the bar owner is a friend mutual relationship
Stand of care: reasonable and prudent bar owner

Duty owed if you know or should have known, actual knowledge and/or constructive
knowledge (define constructive knowledge)
RST 343:
A possess of land is subject to liab for phys harm caused to his invitees by a condition ofn the
land if, but only if, he
a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
c) fails to exercise reasonable care to protect them against the danger.
Daycare (mold hypo)
Status invitee
Wal-Mart Stores v Gonzalez
Issue: Whether Wal-Mart had constructive knowledge of the spilled macaroni
Holding: we hold that the evid that the macaroni salad had a lot of dirt and tracks through it
and subjective testimony that the macaroni salad seemed like it had been there awhile is no
evid. that the macaroni had been on the floor long enough to charge Wal-Mart with
constructive notice of this condition.
Court indicated dirt and track marks werent enough
Rule:
Before there can be liability for injuries resulting from a dangerous condition, it must be shown
that the D in control of the premises:
1) had actual knowledge of the condition and failed to correct it, or
2) had constructive knowledge of the condition and failed to correct it (i.e., that the
condition had existed for such a period of time that the D, in the exercise of due care,
could have and should have known of it).
Exception: when the operating methods of a proprietor are such that dangerous conditions are
continuous or easily foreseeable, the logical basis for the notice requirement dissolves (if you
know grease always lands on the floor you need to keep it clean always)

(There are signs on the bathroom about the last time it was cleaned, check with initials, tells
you the last time the bathroom was checked)
Actual notice if had actual knowledge negligent
Constructive knowledge that it was there long enough for someone to reasonably become
aware of the danger

Proving Negligence:
Direct Evidence: Evidence based on personal knowledge or observation and that, if true,
proves a fact w/o inference or presumption (also termed positive evid)
Circumstantial Evidence: Evidence based on inference and not on personal knowledge
or observation (also termed indirect evid; oblique evid)
Res Ipsa Loquitor; The doctrine provides that, in some circumstances, the mere fact of
an accidents occurrence raises an inference of neg. so as to establish a prima facie case.
OSullivan v Shaw
Issue: Whether the lower court erred in granting the Ds SJ motion on the grounds that the D
had no duty to warn the P because the danger of diving into the shallow end of the pool was
open and obvious
Holding: We conclude that because the danger of diving into the shallow end of a swimming
pool is open and obvious to a person of average intelligence, the Ds had no duty to warn the P
of this danger as a matter of law and therefore could not be found liable for the Ps injuries
Breach no warning signs, no markers, no underwater lighting
Argument had been there during the day, knew where the diving board was, could gauge
depth b/c others were standing in the pool
No duty to warn? Why not? Open and obvious danger.
Would the markers have done anything to stop the action? No, he still would have dove had
done it before
Can do hand formula for markers but wouldnt have mattered
Can get to the fact that the landowner is negligent but what is the key? Does a duty allow
liability to attach? The court here says if the P was aware and the danger was open and obvious
then there was no duty.
Duty Owed:
Reasonable care to all persons lawfully on the premises which includes:
o Maintenance of property in safe condition

o Warn visitors of any unreasonable dangers which the landowner is or should be

aware
o Does not require maximum safety
EXCEPTION: open and obvious dangers

Open and obvious Danger Doctrine

Presumption that the P exercises reasonable care for his/her own safety and asks whether the
dangerous condition was objectively speaking so obvious that the D would be reasonable in
concluding that an ordinarily intelligent P would perceive it and avoid it and any further
warning would be superfluous
(this is not about subjectivity this is an objective test what are the objective factors that
make this an open and obvious danger see the diving board at deep end, a RPSS would
assume that there is a certain base of knowledge: there is a pool bottom, there are different
depths)
Delta Tau Delta v Johnson
Issue: Whether the trial court erred when it denied a SJ motion based on the grounds that D did
not have a duty to the P
Whether a landowner may have a duty to take reasonable care to protect an invitee from the
criminal acts of third parties
Holding: We hold that the D owed the P a duty of reasonable care. Within 2 years of this case, 2
specific incidents occurred which warrant consideration . . . We believe to hold that a sexual
assault in this situation was not foreseeable as a matter of law would ignore the facts and allow
the D to flaunt the warning signs at the risk of all of its guests.
Majority Rule while landowners are not to be made insurers of their invitees safety,
landowners do have a duty to take reasonable precautions to protect their
Specific Harm
Landowner owes no duty UNLESS the owner knew or should have known that the specific harm
was occurring or about to occur
Prior Similar Incidents
Landowner may owe a duty of reasonable care if evidence of prior similar incidents of crime on
or near the landowners property shows that the crime in question was foreseeable
Factors

# of prior incidents
Proximity in time
Proximity in location
Similarity to past crimes

Totality of the Circumstances

The court considers all of the circumstances surround an event, including the nature, condition,
and location of the land as well as prior similar incidents to determine whether a criminal act
was foreseeable
Balancing Test
Court balances the degree of foreseeability of harm against the burden of the duty to be
imposed
Duty to provide reasonable security
How? Have someone monitor (security guard)
When there is a duty of reasonable care there has to be something they did that failed to
uphold that reasonable care
Would any precaution taken have helped
Nelson v Freeland
Issue: Whether the Ds act of leaving a stick on his porch constituted negligence
Holding: We conclude that NC should join the 24 other jurisdictions which have modified or
abolished the trichotomy in favor of modern neg. principles . . . We should eliminate the
distinction between licensees and invitees by requiring a standard of reasonable care toward all
lawful visitors
Osborn v Irwin memorial Blood Bank
Issue:
Whether the D was entitled to a j.n.o.v. on the issues of negligence
Whether the D should be held to a professional standard of care
Whether California permits an expert to second guess an entire profession
Holding: We hold that the D cannot be held liable for neg. under these circumstances
MICRA ProvisionsDamage cap for non-economic damages are limited to $250,000

Includes: pain and suffering, loss of consortium, both of which permit the financial
recovery for losing limbs, losing sight or hearing, the ability to walk, and all other losses
that do not directly relate to economic losses.

Necessity of Expert Testimony Exceptions: (need it to prove that which is beyond the
comprehension of the lay jury)
1. Blatant Neg:
If the professionals negligence is so blatant that the court determines as a matter of law
that a lay person could identify it as such, expert testimony will not be needed.
o Ex. Leaving a sponge in someone everyone can understand that
o Used x sticthes should have used y need ex test
2. Obligation:
a. No need for expert testimony where the professionals obligation is such that a
lay person can understad it and determine whether it has been met
Custom: (Standard of Care)
(Maj) courts will allow it but it is not conclusive
CAVEAT: even though customary usage is not conclusive, if there is no rebuttal then you can
prevail
The custom usage does not need to be universal
It must be well defined
Must be in the same business area
When there is proof of the accepted practice, it may establish std of care
Expert Test Rule (Stand of Care Professionals)
It is almost always held that the professional Ds neg may be shown through expert
testimony
The expert testimony must normally establish both: (a) the std of course of condut in
the profession, and (b) that the D departed from it.
Malpractice Liability (Standard of Care Professional)
The professional is liable for malpractice only if the professional acted w/o the requisite
minimum skill and competence, not merely b/c the operation, lawsuit, etc was unsuccessful.
Hodges v Carter

Issue: Whether an attorney who acts in good faith and with an honest belief that their action
are in the best interest of the client is liable for mistaken advice in an area of unsettled law?
Holding: Professionals, specifically attorneys, who meet the standard of care are not liable for
mere errors in judgment that result in a bad result for their clients.
Rule:
An attorney who acts in good faith and in an honest belief that his advice and acts are well
founded and in the best interest of his client is not answerable for a mere error of judgment or
for a mistake in a point of law which has not been settled by the court of last resort in his State
and on which reasonable doubt nay be entertained by well-informed lawyers.
Rossell v Volkswagen
Issue:
What type of proof must P produce in order to make a prima facie case of negligent
design against a product manufacturer
What is the standard of care
Holding: We conclude that the P did present expert evid that the battery design location
presented a foreseeable, unreasonable risk of harm, that alternative designs were available and
that they were foreseeable from a technological and practical standpoint . . . ul=nlike a
malpractice case, the jury was free to reach or reject this conclusion on the basis of its own
experience and knowledge of what is reasonable.
Professional Status:
1. Independent professional obligations
2. Not influenced by commercial profit motives
3. Special relationship with clients
Products Liability
A sell of a chattel is liable to a purchaser, user or bystander b/c of a defect that causes
an injury
Liability will attach when the P purchased the item directly from the D or in the absence
of a contractual relationship b/t the P and the D.
3 Theories of Products Liability
1. Negligence
2. Warranty

3.Strict Product Liability

1. Negligence
In neg, a manufacturer is held liable where the man failed to use reas care in designing,
manufacturing, or labeling the product
In other words, the man had a duty and breached that duty thus causing injury
Neg. Manu
Privity b/t the injured party and the manu is not reqd for the manu to be held liable
(liab to a remote purchaser)
The only requirement is that the injured P must have been a foreseeable victim.
Tpes of Design Defects
A. Structural Defects
The P must show that b/c the D chose certain materials the product has a structural
weakness which caused it to break or become dangerous
B. Lack of Saftey Features
If a safety feature cold be installed on a product w/minimal expense compared to the cost of
product and the magnatitude of the danger w/o the feature then the design is defective w/o
the feature
C. Suitability of Unintended Purposes
Unforeseeable Misuse: manufacturer has no duty to design the product to protect against such
use
Foreseeable Misuse: manu does have a duty when such use or inintend use is foreseeable
Warranty
A seller of goods may be held liable under either (a) an express or (b) an implied warranty
theory of liab
Express Warranty
A seller may expressly warrant the goods have certain qualities
If the goods do not have those qualities, the purchaser (and possibly other affected parties)
may sue for a breach of warranty
Commonyly, a seller breaches an express warranty by making a false claim about the products
attributes in either the advertising or the labeling
The seller makes representations to the buyer with respect

Express Warranty
To be considered an express warranty, the sellers respresntations:
1. must be one of fact (more that the sellers opinion of the product)
2. must precede or accompany sale; and
3. may be either oral or written
Implied Warranty
An implied warranty about the quality of goods for sale can arise merely in the offering of the
goods for sale under wither (1) merchantability or (2) fitness for a particular purpose
Merchantability
A merchant who sells a part type of goods is held automatically to warrant that the goods are
merchantable (ie. Fit for the ordinary puposes for which such goods are used)
The seller of a produce warrants that the goods sold are within the ordinary description of like
goods and are fit and may be safely used for their intended purpose.
Fitness for particular Purpose
A seller may implicitly warrant the goods are fit for a part purpse. This type of implied warranty
arises where the seller has knowledge that the buyer
A) wants the goods for a particular purpose, and
B) relies on the sellers recommendation of a suitable product
3. Strict Product Liability
A seller of a product is liable w/o fault for personal injuries (or any other physical harm) caused
by a product if that product is sold to the user or consumer in a defective and unreasonably
dangerous condition.
Problem 441
Both doc and law satisfy each other three criteria. While both professionals have plenty
of evidence of modern greed infecting their g=practice groups they at least lack
independence from demanding stockholders
Also, both docs and laws have special relationships with client and patient, such that
even their communication with them are deemed privileged under the law
Further, both bar associations setting professional rules of conduct, and the AMA
provide standards designed to provide high levels of care within those professions.
BIG DIFFERENCE there is no difference for these professionals when they are providing
pro bono care in the level of care versus paying clients

Scott v Bradford
Issue:
Whether a doctor must disclose sufficient information to a patient to enable the patient to
make an informed decision regarding a proposed medical treatment?
Holding: Yes, the doctrine of informed consent prohibits a physical from substituting the
physicians judgment for that of the patient regarding a patients treatment for medical
problems.
Doctrine of Informed Consent:
1. Duty to inform
2. Causation
3. Injury
Doctrine of Informed Consent:
1. Duty to inform- (Disclosure Requirement): Full disclosure of all material risk incident to
treatment and alternatives to the proposed treatment
2. Causation- (informing would have caused them not to do the surgery)
(Objective) Some courts require the patient to show that a reasonable patient would
have declined the treatment if that patient had been fully informed of the risks.
(Subjective) Some courts require only that this patient testify that this patient would
not have undergone the treatment had the patient known of the risk, with the jury
determining the patients credibility.
3. Injury risk must have materialized and resulted in an injury to the patient
EXCEPTIONS:
Physician may not be required to disclose information under certain circumstances:
1. Common or prior knowledge;
2. Detrimental disclosure; and, (there may be times when the Dr should not tell, just sort
of a stop gap to give a reason for the dr)
3. Emergency
The physician has the burden of proof on the issue of privilege.
Question to Ask:
What would the reasonable patient want to know about the (a) nature, (b) consequences, (c)
risks, and (d) possible alternatives to treatment?
1. Members of good standing would disclose

2. Opposing schools of thought reasonable according to the school of thought you prescribe
to
Caveat cannot have your own school of thought
Different standard of care for each level of professionalism if you are a surgeon then you are a
held to a higher skill than a general practitioner
Barcello v Elliott
Issue:
Whether an attorney who negligently drafts a will or trust agreement owes a duty of care to
persons intended to benefit under the will or trust even though the attorney never represented
the intended beneficiaries
Holding: We hold that the attorney owed no professional duty to the intended beneficiaries
and thus the lower court did not err in granting the Ds motion for SJ
Texas Law:
An attorney preparing estate planning documents owes a duty only to his or her client . . . Not
to 3rd parties intended to benefit under the estate plan.
Common Law Privity Barrier
An attorney owes a duty of care only to his client, not to 3 rd parties who may have been
damaged by the attorneys negligent representation
Problem, p. 453
Identify causes of action:
Dennis v George Neg
Duty known trespasser Duty to warn of known dangers
-Attractive nuisance changes the duty to a higher standard of care got us past SJ
Was there a breach failure to read the instruction manual; left over parts; no
signs/enclosures; leaves
Causation but/for;
Proximate cause foreseeable bouncing the ball across the street
Direct Cause he left bots out
Injury he is injured
Dennis v Tommy
Dennis v ER/Doc

George v Dennis Trespass (T/L)

Damages basketball hoop (T/C) may not be enough
-it is intermeddling, but is it sufficient for T/C
Known Trespasser:
Frequent: actual or constructive knowledge. An obligation to warn of hidden and serious dangers
known to the land possessor may be imposed. Conditions on the land that a trespasser would be
expected to discover or inherent in the use of the land does not require a warning
Known: (a) Awareness of trespasser and (b) knowledge that trespasser is approaching an artificial
(human-made) condition there is an obligation to warn trespasser if there is danger of serious bodily
harm or death.

Dennis v George
Neg
Duty known trespasser
Attractive nuisance
Breach parts, didnt test
Causation
George
V Dennis
T/L
-Damages (T/C)
Dennis v Tommy
-Battery ?
Single or Dual intent jurisdiction?
If it is a dual juris not battery b/c did not intend to cause harm
Negligence
-Duty originally no duty owed but once began to act, owes to not leave worse off than found
Injury broken sternum
Standard of Care reasonable and prudent 6 year old
Actual Cause But-for
Proximate Cause Foreseeable
Tommy:

At first there is no duty, but duty is triggered when he began a rescue and held to the standard
of a reasonable and prudent 6 year old, actual cause of injury, proximate cause of injury, but as
attorney, would hope there is a good Samaritan law
Dennis v ER Doctor:
Negligence
-Duty yes
Standard of Care Reasonably prudent doctor this is the floor, the threshold but it is higher in
this case; malpractice they have a professional standard of care
What would a member of good standing have done?
-The only information given is what a surgeon would have done which is a higher standard of
care than the ER doctor
-Have to determine the custom among ER doctors (not surgeons)
-may prescribe antibiodicts, but it is not a certainty.
But-for may be hard to show because the antibiodics may not have a made a difference loss
of chance
George premise liability
George can counterclaim (T/L and T/C) not a defense but a counterclaim
Andres on hook for while kit and caboodle
Cordozo where does the chain break? Tommy might be intervening and superseding cause
for broken sternum (independent tortfeasor added to chain) but does not break Georges
liability for the arm
Defenses:
George contributory neg what is the jurisdiction
Damages Dennis wants 200k, George would get $1 for nominal trespass, and $ for damage to
the hoop
Affirmative Defense
A. Contributory Negligence
Butterfield v Forrester
Issue: Whether a P, who has not used reasonable care to avoid an accident, can recover for
injury caused in the accident?

Holding: no, a P will not be allowed to recover where the Ps lack of due care contributed to
cause the accident.
5 states recognize pure contributory negligence even if the P is 1% at fault
Common Law Rule for Contributory Negligence
A Ps contributory negligence completely bars recovery (even if it is only 1%)
Last Chance Doctrine
Generally: If just before the accident, the D has the opportunity to prevent the harm, and
the P does not have such an opportunity, the existence of this opportunity wipes out the
effect of the Ps contributory negligence, leaving the D liable if the D failed to take
advantage of the opportunity.
Harris v Meadows
Issue: Whether the court erred by failing to set aside the jury verdict for the D and grant the Ps
motion for a new trial
Holding: We are of the opinion that there was sufficient evidence before the jury for it to
conclude that the P was guilty of contributory neg. in failing to act reasonably under the
circumstances to avoid the collision.
Problems, p. 459
A. Driving faster than the posted speed limit is neg per se unless excused by some
circumstances; no such circumstances of excuse are available here. On the other hand, for cont
neg to count against the P it must have been a cause of the accident. Here the speeing was not
a cause as the accident did not happen while the p was speeding. Therefore, as there is no
indication of any fault by the P when the accident occurred 5 minutes later, there is no contr
neg defense available.
B. Unlike the prior problem, here the Ps act of allowing herself to be distracted by the text
message might be an additional but-for cause of the accident. This would be true if the jury
were to believe that, had she kept her eyes on the road, she would have had time to avoid the
collision after the D swerved into her lane.
C. Forgetting to set your alarm might be negligence technically, particulary when being later for
a big meeting might be a foreseeable cause of some harm. Further, technically, you could say
that but-for oversleeping, he would have never been driving in the ill-fated intersection at the
moment D ran a red light and caused the harm. Viewed this way, Ps cont neg has both

elements of fault and actual causation. But thats not enough, the neg must also be the
proximate cause of the accident.
B. the Comparative Fault Reform
1. the Decision to Switch to Comparative Fault
McIntyre v Balentine,
Issue: Whether contributory negligence
Holding: Yes, contributory negligence is abolished as a defense. The doctrine was initially based
on the notion that an individual should not benefit from his/her own wrongdoing. The nest
approach would be to adopt a system of modified comparative fault where the P can recover if
the Ps negligence was less than the Ds
Rationalizations for contributory Neg:
1. the P should be penalized for his misconduct;
Pure Comparative Negligence: %, even if the P
Exceptions:
Contributory negligence does not absolutely bar recovery if:
1. Ds conduct was intentional
2. Ds conduct was grossly negligent
3. D had the last clear chance to avoid the Ps injury
4. Ps neg may be classified as remote
Comparative Negligence Schemes
1) Pure
2) Modified
a) >50% -> no recovery

Pure
Under this approach, the P can recover some ercentage from liable Ds regardless of the extent
of the Ps own negligence
Ex. If 60% recover 40%
Modified

(<50% -> no recovery): A P is barred from recovery only when the P is more ne greater than
50%
(>50% -> no recovery): A P is barred from recovery when the P is equal to or more (i.e. equal to
50% or greater than 50%) negligent than the D.
Ex. (a) if the P is 50% at fault, the P is barred from recovery. (b) if the P is 49.9% at fault the P
can recover
Rationalization for Contributory Negligence
1) the P should be penalized for his misconduct;
2) the P should be deterre from injuring himself; and
3) the Ps neg supersedes the Ds neg so rendering the Ds neg no longer proximate
Sanford v Chevrolet
Issue: Whether and how proportionate fault law applies when a dangerously defective product
and a Ps neg. together resulted in the Ps injuries
Holding: when an injured claimants misconduct is the cause in fact of the injury, it can defeat a
products liab claim if the claimants fault is greater tha the defendants combined fault
involved in marketing the defective product. If it is not greater, Ps fault proportionately
reduces her recoverable damages.
Indivisible injury cannot separate fault, single injury caused by the tortfeasors combined
actions who caused the actual harm itself
Divisible injury can clearly see what injury was created by which tortfeasor
3 views:
Quantifying fault: requires factfinder to assess relative magnitude of the parties respective fault
Comparative causation: allocation of damages is . . . to be an assessment of the proportion in
which the Ps injuries were caused by the product defect and the Ps neg
Mixing fault with Proximate Causation: the fault factfinder determines percentage of fault
considering nature of conduct of each party and the causal relationship
We have to establish how much each substantial factor contributed what percentage to
the harm how much each person contributed
Court wants jury to assess based on their judgment as to who is more at fault and try to
assess a percentage upon that
Look at the conduct itself makes it non-objective, juries will vary in thish
o What did the P know and when did they know it?

o Did they have actual knowledge or constructive

o Temporal issues
Problems, p 471
A. Duty the school has a legal duty to the student (as an invitee). Duty is to warn of potential
knowledge or to make safe.
Does law school have knowledge yes. Their employee was aware (respondent superiority)
Standard of Care school
Breach yes, duty to make safe
Actual case but for. Yes, but for the coffee on the floor she would not have fallen
Proximate causation direct cause - yes, foreseeable yes
Harm broken wrist, loss of study time,
Defenses: was she contributory negligent yes
What percentage
Both the law student and the janitor have done something that could be considered neg by
refraining from conduct that would have made a foreseeable accident less likely. Arguably the
utility of the students conduct is more valuable since the student is trying to avoid being late to
class. If the jury were to agree, the jury might apportion less fault to the student than the
janitor.
On the other hand, maybe she was late b/c she drank. Suddenly the utility of the students
conduct seems somewhat less admirable. The truth is that there is a lot of room for either
counsel to assign blame. On the other hand, the students neg is much more closely connected
in time to the accident. Viewed this way, adding to the analysis a consideration of prox cause
might time the scales toward the janitor being apportioned less responsibility
Beaudoin v Texaco
Issue:
When there is a P and multiple other tortfeasors, does ND permit recovery against those
Ds who are more negligent than the P or against all negligent Ds as long as the Ps neg is
less than the combined neg of the other neg actors
Whether the person against whom recovery is sought includes statutorily immune
Holding: In ND a joint tortfeasor is liable for the share of neg attributed to a statutorily immune
employer P shall have a judgment against D in the sum of 70% (Wireline 60 + Texaco 10%)
NDCC
Contributor fault does not bar recovery in an action by any person to recover damages for
death or injury to person or prop. UNLESS the fault was as great as the combined fault of all

other persons who contribute to the injury, but any damages allowed must be diminished in
proportion to the amount of contributing fault attributable to the person recovering. The court
may, and when requested by any party, shall direct the jury to find separate special verdicts
determine the amount of damages and the percentage of fault attributable to each person,
whether or not a party, who contributed to the injury. The court shall then reduce the amount
of such damages in proportion to the amount of fault attributable to the person recovering.

Wi rule
Ps share of the neg is compared in turn w/the neg apportioned to each indiv D any D
whose % of neg is lower than or equal to the Ps neg is dismissed
Unit Rule
Ps share of neg is compared to the sum of the shares of neg apportioned to the other
neg actors. If the Ps share is less than that sum, then the P can recover from each of the
Ds.
(Ps contributory neg cannot be equal to or greater than)
Joint and Several Liability
Liab that may be apportioned either among two or more parties or to only one of a few select
members of the group, at the adverysarys discretion. Thus, each liable party is individually
responsible for the entire obligation, but a paying party may have a right of contribution and
indemnity from nonpaying parties.
If you are a joint tortfeasor, you can be held responsible for your share or the entire
thing.
Several only
Modified Comparative fault
When two or more parties are found to have contributed to the injury, the liab of each party is
several only, and is not joint, and each party is liable only for the amount of damages
attributable to the percentage of fault of that party, except that any persons who act in concert
in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their
benefit, are jointly liable for all damages attributable to their combined percentage of fault.
Assumption of Risk
A. Express Assumption of the Risk
1. Public Policy
2. Drafting

Principle: allows people to participate in dangerous activities that they know there is a risk
Tunkl v Regents
Issue: Whether a release from liability, for future negligence imposed as a condition for
admission to the D, a charitable research hospital, is valid
Holding: We cannot lightly accept a sought immunity from careless failure to provide the
hospital service upon which many must depend. Even if the hospitals doors are open only to
those in a specialized category.
Cal Civil Code: Contracts Contrary to Policy of Law:
All contracts which have for their object, directly or indirectly, to exempt anyone from
responsibility for his own fraud, or willful injury to the person or property of another, or
violation of law, whether willful or negligent, are against the policy of the law.
Adhesion Contract: a standard-form contract prepared by one party, to be signed by another
party in a weaker position, usu. a consumer, who adheres to the contract with little choice
about the terms. Take it or leave it.
Exculpatory clause disfavored but still valid
Tunkl Factors
1. Public regulation
2. Performance of important public service
3. Willingness to perform service
4. Decisive bargaining advantage
5. Standardized adhesion contract
6. Purchaser under sellers control
Will not validate an exculpatory clause when there is a larger public policy risk at hand. Its not
equal terms when dying
Note exceptions on pg. 483
A. athletic programs
B. employer
C. grossly negligent
Problems, p. 484

A. will not be a purely private matter. On the other hand, the US does not lack bargaining
strength. Could go either way b/c each of two major consideration points go in a different
direction. Arguably unless it is both private and voluntary, however, a court should refuse
enforcement.
Has to be both private and voluntary it is voluntary but it is PUBLIC. Could go either way.
1) yes
2) yes
3) no
4)
5)
6) no
C. In a consumer contract setting such as this, where this is clearly no ability to negotiate over
the terms of the release and it may be unclear that any consumer would understand the
significance of merely clicking a button online, there are strong arguments against
enforcement. This is also another situation where the public has a strong interest in the D
acting with reasonable care in supplying products to the public.
-Click a button, cant negotiate this is a strong argument
(2) Drafting Exculp. Clauses
Alack v Vic Tanny
Issue: Whether the lower court erred when it concluded that the Ds exculpatory clause did not
bar the Ps negligent action as a matter of law
Holding:
Ambigious - b/c the exc claus did not use the word neg or fault r their equivalents so that a
clear and unmistakable waiver occurred.
Express Assumption of Risk Analysis:
1) whether the risk that inured the P fell w/n the unambiguous terms of the agreement
2) whether the contract violates public policy and should not be enforced
(1) an exculpatory clause is sufficient to insulate the party from his or her own neg as long as
the language clearly and specifically indicated the intent to release the D from liab for personal
injury caused by the Ds neg.

(2) In the ordinary case, there is no public policy which prevents the parties from contracting as
they see fit.
EXCEPTIONS:
Public policy rendering an exculpatory clause unenforceable:
1) Intentional harm or reckless, wanton, or gross neg
2) grossly unequeal bargaining power b/t the parties
3) public interest transaction
Factors in determing public policy exception:
Bargaining power
Intentional or wanton misconduct
Fine print
o D must also show that the terms of the liab limitation were brought hone to the
P (P must have been actually aware of the limitation or that a reasonable person
in the Ps position would have been) need to draw their attention to it.

Reduction in Liability
If the D makes an honest attempt to fix a reasonable value for damages in advance, and
allows the P to pay a graduated fee based on the value fixed
Health Care
Cts unwilling to allow a reduced fee for a patient to provide a reduction for a graduated
fee
Problems, P 491
Tunkl factor:
1)yes
2) yes
3) yes
Not given notice, no refunds, heading did not have to do with neg, written on small type
probably wont be enforceable.
Secondary Implied Assumption of Risk
Riddle v Universal Sport Camp
Issue: Whether the lower court erred when it granted the Ds SJ motion on the ground
that the P assumed the risk

Holding: The trial court correctly concluded that the risk of falling was a specific risk
known to the P and voluntarily encountered. When undisputed facts reveal knowledge
of danger and voluntary participation in the hazardous activity, there is no jury question
and judgment for the D is appropriate
Assumption of Risk Requirements:
The P will assume the risk if the P:
1. Has actual knowledge of the particular risk;
2. Appreciates the magnitude of the risk; and
3. Encounters the risk voluntarily

Standard:
Assumption of Risk (Subjective Standard):
What did this P actually realize?
Contributory Negligence (Objective Standard):
What would the ordinary person have realized?

Assumption of Risk:
Primary: the D was not negligent, either b/c he owed no duty to the P or b/c he did not breach
the duty owed
Secondary: the D owed a duty, but asserts an affirmative defense of assumption of risk to the
breach of duty D owed to the P
Pure (or Strict) Secondary Assumption of Risk: Reasonable conduct but nonetheless bars
recovery
Qualified Secondary Assumption of Risk: Unreasonable conduct and bars recovery
Davenport v Cotton Hope Plantation Horizontal Property
Issue: Whether assumption of risk survives as a complete bar to recovery under S.C.s
comparative neg sys
Holding: We conclude that the WV approach is the most persuasive model . . . We therefore
hold that a P is not barred from recovery by the doctrine of AOR unless the degree of arising
therefrom is greater than the Ds fault
Duty: Duty of landlord P is an invitee

Standard of Care reasonable and prudent landlord

Breach of duty Learned hand formula had actual knowledge light was out
Actual But-for them not replacing the lightbulb he would not have fallen
Proximate foreseeable that he would fall
Injury fell down stairs
Defense assumption of risk
He had actual knowledge that light bulb was out
Merger of Doctrine
Courts have moved to abolish the secondary implied assumption of risk categories
In other words, if the Ps conduct is unreasonable and places the P in danger, this will be
contributory neg and will reduce but not bar recovery
If the Ps conduct is reasonable and places the P in danger, the conduct is not negligent
and recovery is not reduced.
Rhode Island Approach
The difference b/t AOR and C/N is that the former is subjective while the latter is objective . . .
No overlap b/t the two . . . Thus, AOR is an absolute defense was not appropriate
AOR assumption of risk
W.V. Approach
Absolute defense of AOR was incompatible with its comparative fault sys thus adopting a
comparative AOR rule . . . permits the jury to consider the Ps neg in assuming the risk
DAMAGES
II. Actual, Compensatory Damages
A. Special (Economic) Damages
Martin v United States
Issue: What information is the provided to permit the factfinder to determine the appropriate
amount of damages for an injury
Holding: Award is $548,029
Personal Injury Damage Elements:

1.
2.
3.
4.
5.

Past physical and mental pain

Future physical and mental pain
Future medical expenses
Loss of earning capacity
Permanent disability and disfigurement

Problem:
For ex, even though women as a group live longer than men, the worklife of women of all races
is typically shorter than that of men. Moreover, minority men have a shorter worklife
expectancy, as well as life expectancy, of white men
I. Review of Jurys Award
Miraglia v H&L Holding Corp
Issue: Whether the jury award is excessive and materially deviated from fair and reasonable
compensation for the injuries the P suffered
Holding: The Court grants the Ds motion to set aside the verdict as excessive UNLESS w/n 30
days after service of the decision and order the P stipulates to a reduction on the award for:
Past pain and suffering from 20 mil to 5 mil
Future pain and suffering from 55 mil to 10 mil
Future medical expenses from 10 mil to 8.9 mil
Total award reduction from 85 mil to 23.9
CPLR 5501(c)- in reviewing a money judgment in an action in which an itemized verdict is
required by Rule forty-one hundred eleven 4111 lets a court determine if an award is excessive
Factors to Consider When Reviewing Jury Award
1. Nature of the injury sustained
2. Ps age
3. Ps prior phys. Condition
4. Permanency of injury
5. Ps ability to regain gainful employment
6. Pain (phs. And emotional; past; present and future)
7. Future hospitalization
8. Determine whether award was result of devastating effect of injury
2. Per Diem Awards
Beagle v Vasold

Issue: Whether the trial court erred in prohibiting Ps counsel from stating an argument to the
jury the amount of the Ps general damages either in terms of a total sum or a sum for a time
segment.
Holding: We conclude that the court was in error when it restricted counsels arguments . . .
we believe that Ca should align itself with the 21 other jurisdictions that permit an attorney to
make a per diem (by the day or for each day) argument.
4. Hedonic Damages
McDouglad v Garber
Issue:
Whether some degree of cognitive awareness is a prerequisite to recovery for loss of
enjoyment of life
Whether a jury should be instructed to consider and award damages for loss of
enjoyment of life separately from damages for pain and suffering
Holding: We conclude that the court erred both in instructing the jury that the P awareness
was irrelevant to their consideration of damages and that jury should not consider such
damages independently from pain and suffering

Wrongful Death & Survival Claims

Jordan v. Baptist Three Rivers Hospital
Issue: Whether spousal and parental consortium losses should be permissible in wrongful death
actions
Holding: We hold that loss of consortium claims should not be limited to personal injury suits.
We hold that the pecuniary value of a deceaseds life includes the element of damages
commonly referred to as loss of consortium
Survival v Wrongful Death Statutes
Survival
Provides for recovery for damages suffered by the decedent from the time of the tort
until the decedents death
Claim survives for the benefit of the estate
Not a new cause of action
Wrongful Death

Provides for recovery by certain statutory beneficiaries (typically immediate family) to

compensate for their losses associated witht eh death of their loved one
Claim for harm to others beginning at moment of decedents death
New cause of action created

Classifications of Damages
Deceased Damages from Injury Until Death
Medical expenses
Phys and mental pain and suffering
Funeral expenses
Lost wages
Loss of earning capacity
Next of Kin Incidental Damages
Pecuniary value of decedents life
Pecuniary Value:
expectancy of life
Age
Health and strength
Capacity for labor and earning
Personal habits to sobriety and industry
Probable living expenses
Problems, P. 582
A. Survival Damages
B. Survival Damages
D. logicall covered in a wrongful death recovery as items incurred after the decedents death . .
. many survival statutes are interpreted to cover this particular item
F. Lost wages survival damages
G. Loss of support wrongful death
Loss of support to the family (premised upon ecid. Of the likely future earnings of the decedent
had they not dies)
H. Wrongful death damages
These items, if cognizable would be wrongful death
Wrongful death & Survival Statutes set up expectancy damages

Punitive Damages
Shugar v Guill
Issue: Whether the P adduced enough evidence to warrant the awarding of punitive damages
Holding: We conclude that the evid presented was insuff to permit the jury to reasonably infer
that the Ds actions were activated by personal ill will toward the P or that his acts were
aggravated by oppression, insult, rudeness, or a wanton and reckless disregard of the Ps rights.
Punitive Damages Rule in NC
Punitive damages may be recovered for an assault and battery but are allowable only when the
assault and battery is accompanied by an element of aggravation such as malice, or oppression
or gross and willful wrong, or a wanton and reckless disregard of Ps rights.
Other Jurisdictions:
Punitive damages may be recovered on a theory of implied or impute malice when a person
intentionally does an act which naturally tends to be injurious
Problems, P. 620
A. No malice no punitive
B. No malice no punitive
C. Malice Punitive
Mobil v Ellender
Issue: Whether the P provided sufficient evidence to show that the acts which caused the harm
and were grossly negligent can be attributed to the D corporation thus entitling the P to
punitive damages for the harm caused
Holding: We conclude that there is evid that the Ds, mobil, own acts and omissions involved an
extreme degree of risk to contract workers like the P . . . There is evid. from which the jury
could reasonably infer that the D had a company policy of neither monitoring nor providing
protective gear to contract workers which caused extreme risk to these workers
Gross Negligence:
1. (assessment of what the D objectively did) Ds conduct created a substantial probability
of serious danger to the P
2. (assessment of what the D subjectively knew) D had a subjective awareness of the risk
of harm arising from its actions but made the conscious decision to disregard this risk
RST 909
Punitive damages can properly be awarded against a master or pther principle b/c of an act

by an agent if, but only if,

a) the principal or a managerial agent authorized the doing and the manner of the act, or
b) the agent was unfit and the principal or a managerial agent was reckless

Problems P. 624
A. No, need knowledge
B. Yes, on notice, they were aware

State Farm Mutual v Campbell

Issue: Whether an award of $145 million in punitive damages, where full compensatory
damages are $1 mil is excessive and violates the Due Process Clause of the 14th
Amendment.
Holding: An application of the Gore signposts . . . Would justify an award at or near the
amount of compensatory damages. The punitive award of $145 mil. . . Was neither
reasonable nor proportionate to the wrong committed, and it was an irrational and
arbitrary deprivation of the Ds property.
U.S. Com. 14th Amend:
Section 1: . . . No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any person of . . .
property, without due process of law. . .
BMW v Gore
Excessively high punitive damages . . . violates the Due Process clause. For punitive damages
to stand, the damages must be reasonably necessary to vindicate the States legitimate
interest in punishment and deterrence. Punitive damages may not be grossly excessive
if they are, then they violate substantive due process.

The Supreme Court applied three factors in making this determination

1. The degree of reprehensibility of the Ds conduct;
2. The ratio to the compensatory damages awarded (actual or potential harm
inflicted on the P); and
3. Comparison of the punitive damages award and civil or criminal penalties
that could be imposed for comparable misconduct.
The Court noted, however, that these three factors can be over-ridden if it is
necessary to deter future conduct