Torts Outline – Kahn-Fogel – Fall 2009

Negligence (Duty, Breach, Causation, and Damages)

I. DUTY
A. Reasonable Person Standard: to act as a reasonable person similarly situated; only the situation varies.
1. Hand Formula: Conduct would be negligent if Burdens of prevention or avoidance, and an actor is
negligent if that Burden is less than the Probability of loss, multiplied by the magnitude of Loss that would
be avoided with the possible prevention or avoidance. B < PL
2. Especially Dangerous Instrumentalities: It is a general principle that the care employed by a
reasonable man must be proportionate to the danger of the activity (high risk: firearms, etc.).
3. Emergency Situations: Sudden Emergency Instruction: in the absence of antecedent negligence, a
person confronted with a sudden emergency that deprives him of time to contemplate the best reaction
cannot be held to the same standard of care and accuracy of choice as one who has time to deliberate.
4. Knowledge & Skill: The reasonable person standard provides a minimum standard below which an
individual’s conduct will not be permitted to fall, the existence of knowledge, skill, or even intelligence
superior to that of an ordinary man requires proportionate increase in duty of care.
5. Youth: If the actor is a child, the standard of conduct to which he must conform to avoid being
negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.
Children are encouraged to participate in activities for children; HOWEVER, children who engage in
inherently dangerous activities must exercise an adult’s standard of care (ex. snow mobile).
6. Mental Disability: The duty of care for adults & children applies – no special considerations
7. Physical Disability: The duty of care is that of a similarly situated disabled person; disabled people
must take precautions because of their disability (walking cane for blind, hearing aid for deaf, etc.).
8. Intoxication: The reasonable person standard applies.
9. Recklessness: Recklessness is midway between negligence and intentional torts
a) Intentional Torts: One intends to invade a legally protected interest of the other person
b) Unintentional Torts: Gross/wanton behavior; knowledge of risk & refusal of easy precaution.
c) Strict Liability: Impose liability w/o regard to whether the actor’s conduct is blameworthy.
II. BREACH
A. Violation of a Statute: Violation of a statute proves negligence per se, which gets P to the jury.
1. Negligence Per Se: Violation of a statute intended for a specific class of people and intended to
prevent a specific type of harm (ex. giving cigarettes a to minor who caused a fire is not neg. per se).
2. Excused Violation: Good reason for violation (ex. crash after running a red light due to med. emerg).
B. Industry Custom: IC is not conclusive; it only shows industry’s standard of care (TJ Hooper).
C. Res Ipsa Loquitur: no causal connection allowed; inference of negligence (ex. barrel falls out of window).
1. Elements
a) ** The type of injury was usually associated with negligence – MOST IMPORTANT
b) ** The D had exclusive control of whatever caused the injury
c) The P had made no causal contribution to the harm; and
d) The D’s access to info about the event was superior to the π’s.
III. CAUSE-IN-FACT
A. The But-For Test: D causes P’s injury; But for D’s conduct, P’s injury would not have occurred
B. Alternatives to the But-For Test:
1. Multiple Sufficient Causes: Recovery if two or more Ds each could have caused injury (ex. 2 fires).
2. Concert of Action: Two Ds act in concert to harm P (D1 drag races D2, and D1 hits P; both liable).
3. Alternative Liability: Two Ds acts could injure P, but only one D injures (ex. two hunters shoot at P)
4. Market Share Liability: Ds in region apportioned blame based on % in market (DES drug & women)
Torts Outline – Kahn-Fogel – Fall 2009

5. Liability for Lost Chance of Recovery or for Increased Risk of Eventual Harm: P may recover
from D even if P would be sick or die anyway (D misdiagnosed P & decreased chance of recovery)

IV. LIMITS ON LIABILITY: Duty Owed Limits & Proximate Cause

A. Duty
1. Two Views: Cardozo – duty if in a zone of danger (Majority); and Andrews – duty to the whole world
2. Unforeseeable Plaintiff: no duty owed (ex. unborn child that is born w/ defects 10 yrs. after accident)
3. Reasonably Foreseeable Plaintiff: Reasonable duty of care owed to reasonable foreseeable P
4. Special Relationships: if P gives up control and self-protection, duty to protect if innkeeper, host, etc.
5. Duty to Aid or Protect: no duty to aid or protect another, unless there is a special relationship
B. Proximate Cause.
1. Directness Test: (Not used) if an act was a cause-in-fact then it was a proximate cause
2. Foreseeability: for liability, harm must be foreseeable consequence of danger D caused (ex. codes)
a) Thin Skull Doctrine: D liable for injuries compounded due to P’s preexisting condition
3. Substantial Factor Test: D’s conduct important enough, compared to other causes of P’s injury
4. Combination Test: Foreseeablity & Sub. Factor test combined (ex. heart attack while ditch cleaning)
5. Intervening Forces: Acts occurring after D’s act causing P’s injury (ex. third party, act of God)
a) Foreseeable: Liable – D injures P, P is hospitalized, and hospital infects P with poor care
b) Unforeseeable: Not Liable – D injures P, P falls down, and 1 min. later a nearby tree falls on P
V. DEFENSES
A. Contributory Fault
1. Contributory Negligence: P’s contributing to injury, regardless of %, bars recovery from D
a) Last Clear Chance: If D had last chance to avoid P’s injury and chose not to, P can recover
b) Reckless: If D was reckless, P can recover 100% regardless of P’s fault
2. Comparative Faults – Total damages awarded to P are reduced to reflect the % of Ps responsibility
a) Pure Comparative: P and D may have any % of fault (ex. P is 60% at fault & recovers 40%)
b) Modified Comparative: Courts require P to be either 49% or less or 50% or less to recover
c) Negligence of Multi-Defendants
(i) Unit Rule: P’s fault compared to total fault of all Ds (ex. P-45%, D1-40% + D2-15%)
(ii) Wisconsin Rule: P’s fault compared to each D’s fault – more Ds, harder to recover
B. Assumption of Risk
1. Express Assumption of Risk: Waiver P signs agreeing not to sue – consider public policy & equity
2. Implied Assumption of the Risk: No express agreement, but agreement not to sue is implied
a) Primary Implied: D owes no duty if P is injured while engaged in inherently dangerous act
b) Secondary Implied: Subjective; P knows & understands risk and voluntarily takes risk anyway
C. Immunities
1. Sovereign Immunity
a) Federal Govt.: Federal Tort Claims Act
b) Municipalities: Normally immune for state & local services
2. Statutes of Limitation and Repose: Limitation: time-barred lawsuit; Repose is time filing requirement.
VI. APPORTIONMENT OF DAMAGES
A. Joint and Several Liability: uncommon due to comparative; treats each D as responsible for all P’s recovery
1. Contribution: D1 who pays more than his share of P’s recovery can recover D2’s share from D2
B. Several Liability: common; court divides damages b/w Ds according to each D’s fault; even if a D is absent
C. Allocating Responsibility to Absent or Immune Actors:
1. Common Law: If absent or immune D, then known D pays for absent or immune D fault
Torts Outline – Kahn-Fogel – Fall 2009

2. Statute: If absent or immune D, P shoulders burden/fault of absent or immune D

3. Intentional Conduct in a Comparative Setting
a) Contributory Jurisdiction: Intentional tort overcomes any of P’s negligence
b) Comparative Jurisdiction #1: Damages not reduced for P’s negligence
c) Comparative Jurisdiction #2: Damages reduced according to P’s negligence
D. Vicarious Liability (type of joint liability): An actor is liable for another’s tort – usually employer
1. Respondeat Superior: Employer liable for employee’s tort committed in scope of employment; this
includes negligence and intentional torts if type of force used is within scope of employment (ex. bouncer)
2. Negligent Supervision: Supervision must fall below reasonable supervision standard
3. Indemnification
a) Indemnification is Δs right to full compensation for all damages paid due to tortious conduct of
some other actor.
b) In some states, employer may sue employee to recover all of the damages the employer paid
b/c of the relationship b/w them.
c) In some states, an employer is entitled to indemnification from an employee only if the
employee’s conduct was characterized as reckless or intentional.
4. Special Errands for Employers: General – an employee is outside the scope of his employment
when commuting to and from his workplace. Going and coming rule (ex. McDonalds manager trainee).
5. Independent Contractors: In determining whether an employer-employee relationship exists, the fact
finder must evaluate a number of criteria (*principal liable for non-delegable duties or dangerous work):
(i) Extent of control exercised by the master over details of the work and the degree of
supervision;
(ii) Distinct nature of the worker’s business;
(iii) Specialization or skilled occupation;
(iv) Materials and place of work;
(v) Duration of employment;
(vi) Method of payment;
(vii) Belief of the parties.
VII. PROFESSIONALS
A. Professional Standard (General): Professional held to standard normally exercised in that profession
B. Professional Standard in Medical Cases
1. Standard #1 (old): Dr’s conduct compared to another Dr. in the same community
2. Standard #2 (mixed): Dr’s conduct compared to another Dr. in the same or similar community
3. Standard #3 (Modern): Dr.’s conduct compared to national medical practices (BEST)
C. Professional Standard in Legal Malpractice Cases
1. Reasonable Person Standard: Lawyer’s conduct compared to other lawyers in the state; trial in trial

VIII. OWNERS AND OCCUPIERS OF LAND – Determine status, determine duty, determine liability
A. Traditional Approach
1. Land owner’s duty depends on injured person’s status – Trespasser, Licensee or Invitee
2. Trespassers: No duty for ordinary T; if known T land is highly dangerous, then duty to warn
3. Child Trespassers: ATTRACTIVE NUISSANCE DOCTRINE if:
a) LO knows or should know a child is likely to trespass
b) LO knows or should know that there is an unreasonable risk of death or serious injury
c) Children, due to youth, do not discover or realize the danger of the risk
d) Utility of maintaining condition & burden of eliminating it are slight compared to risk
e) LO fails to exercise reasonable care
4. Licensee: Duty to warn; Duty to make safe if danger is not obvious
Torts Outline – Kahn-Fogel – Fall 2009

5. Invitee: Duty to make reasonable inspections & make safe; if open & obvious natural danger, no duty

B. Modern Approach: LO owes all non-trespasser entrants a reasonable duty of care; or trad./mod. mix
C. Landlord-Tenant: L owes general duty of care to T; L must inspect and make safe against unreasonable risk

IX. SPECIAL DUTY RULES

A. Duty to Rescue or Protect
1. General No-Duty-to-Rescue Rule and its Exceptions
a) General: A person cannot be liable in tort for failing to act, even if the rescue could be
accomplished easily; if D begins to render assistance to P, D must precede w/ reasonable care.
b) Special Relationship
(i) Common carrier with its passengers
(ii) Innkeeper with its guests
(iii) A business or possessor of land that holds its premises open to the public with those
who are lawfully on the premises
(iv) Employer with its employees
(v) A school with its students
(vi) Landlord with its tenants; and
(vii)Custodian with those in its custody
c) Rescue Doctrine
(i) An injured rescuer need not prove that D proximately caused his injuries to sue
(ii) Allows an injured rescuer to sue the party causing the danger requiring the rescue
(iii) Rescue doctrine defeats assumption of risk defense
(iv) To achieve rescuer status one must demonstrate:
(A) D was negligent to person rescued and such negligence caused rescuer’s peril
(B) Peril or appearance of peril was imminent;
(C) A reasonably prudent person should know of such peril or appearance of it
(D) The rescuer acted with reasonable care in effectuating the rescue.
d) Firefighter’s Rule
(i) Limits liability to rescuers
(ii) Firefighters/police officers injured on duty cannot recover based on neg. conduct
(iii) Public Policy basis – necessity for their intervention b/c they are employed by the
public to respond to such conditions and receive compensation and benefits for the risks
inherent in such responses.
2. Protecting Third Parties from Criminal Attacks or Disease
a) Require affirmative acts by health care professionals who have an opportunity to protect
strangers from danger.
(i) Relationship of a physician to his patient is sufficient to support the duty to exercise
reasonable care to protect 3rd persons against foreseeable risks emanating from a patient’s
physical illness.
(ii) Physician owes duty to minor child who is a member of the immediate family and living
with a patient suffering from a contagious disease to inform those with minor’s well being of
nature of disease and precautionary steps.
(iii) No obligation to extend a warning to members of the public in general.
b) General Rule: No duty to control the conduct of a 3rd party to protect another from harm.

B. Duty Limited by Type of Harm

Torts Outline – Kahn-Fogel – Fall 2009

1. Negligently Inflicted Emotional Distress

a) Bystanders that suffer great emotional distress after witnessing an accident or its gruesome
aftermath involving death or serious injury to a close relative.
(i) Elements of claim:
(A) Δs conduct fell below applicable standard of care
(B) The π suffered an injury (severe emotional distress); and
(C) Δs conduct was a cause-in-fact of plaintiff’s injury.
(ii) Closeness of Relationships:
(A) Spouse, parent, child, grandparent, grandchild, or sibling.
(B) Animals = Property. Not covered under relationships.
(iii) Public Policy Considerations:
(A) Establishing claim is genuine; and
(B) Ensuring that allowing recovery will not place an unfair burden on the
tortfeasor; and
(C) Tortfeasor not unfairly burdened.
b) Public Policy Factors when considering the authenticity and fairness of an emotional distress
claim:
(i) Whether injury is too remote from negligence;
(ii) Whether injury is wholly out of proportion to culpability of negligent tortfeasor;
(iii) Whether in retrospect it appears too extraordinary that the negligence should have
brought about the harm;
(iv) Whether allowance of recovery would place an unreasonable burden on the negligent
tortfeasor;
(v) Whether allowance of recovery would be too likely to open the way to fraudulent
claims; or
(vi) Whether allowance of recovery would enter a field that has no sensible or just stopping
point.
2. “Mere Economic” Harm
a) Cases in which a Δs conduct causes physical harm to a πs property always allow recovery of
economic damages.
3. Wrongful Pregnancy; Wrongful Birth; and Wrongful Life
a) Wrongful Pregnancy: D was negligent in preventing pregnancy (ex. Dr. fails in sterilization)
b) Wrongful Birth: D negligent in detecting deformed fetus (ex. would have aborted)
c) Wrongful Life NOT RECOGNIZED: Child sues for pain and suffering (ex. child better off dead)
C. Primary Assumption of Risk: P assumes risk of inherently dangerous activity (skiing); D owes duty of care
outside of that activity (ex. Resort must warn skiers of known dangers on slope)

X. DAMAGES
A. Compensatory Damages: General: pain & suffering; Special: calculable – med. Expenses & lost earnings
B. Survival Statutes: Lawsuit survives death of P (ex. P1 is injured & dies before litigation and P2 cont. action)
C. Wrongful Death Statutes: P sues b/c of loss of spouse or child (ex. loss of monetary support, consortium, etc)
D. Punitive Damages: to punish; D’s must have committed intentional tort or been reckless
E. Adjustments to Damages:
1. Collateral Sources: P recovers regardless of P’s other sources (D pays even if P’s insurance pays)
2. Statutory Ceilings: Caps on certain types of cases, especially medical malpractice

Strict Liability
Torts Outline – Kahn-Fogel – Fall 2009

XI. TRADITIONAL STRICT LIABILITY

A. Injuries Caused by Animals
1. Domesticated
a) Strict liability only if owner knew of animal’s abnormally dangerous nature and injury related
2. Wild Animals
a) Strict liability only if injury to P is the type the dangerous animal would cause
B. Abnormally Dangerous Activities Factors:
1. High risk
2. Magnitude of risk
3. Whether risk can be eliminated with reasonable care
4. Whether activity is one of common usage
5. Whether activity is appropriate to location
6. Value of activity to the community

Products Liability
XII. PRODUCTS LIABILITY
A. Manufacturing Defects: Design OK; product differs from others or intended product
B. Design Defects
1. Consumer Expectation Test: Product fails to perform as ordinary consumer would expect (table saw)
2. Risk-Utility Test / Risk-Benefit Test: Product risk preventable – risk of danger outweighs utility or benefit
C. Warnings and Instructions: Defective if warning or instructions would have reduced foreseeable risk or harm

Trespass and Nuissance

XIII.TRESPASS AND NUISANCE
A. Trespass
1. Trespass to Land: Person or object trespasses – compensatory or nominal damages
2. Trespass to Chattel and Conversion
a) Intentionally dispossessing another of the chattel or using or intermeddling with a chattel in the
possession of another. Subject to liability to the possessor if the chattel:
(i) Dispossess the other of the chattel, or
(ii) The chattel is impaired as to its condition, quality or value, or
(iii) The possessor is deprived of the use of the chattel for a substantial time, or
(iv) Bodily harm is caused to the possessor or harm is caused to some person or thing in
which the possessor has a legally protected interest.
b) Factors are considered in determining whether interference with a chattel is serious enough to
constitute a conversion as opposed to a trespass:
(i) Extent and duration of the actor’s exercise of dominion or control
(ii) Actor’s intent to assert a right in fact inconsistent with the other’s right of control
(iii) Actor’s good faith
(iv) Extent and duration of the resulting interference with the other’s right of control
(v) The harm done to the chattel
(vi) Inconvenience and expense caused to the other.
3. Privileges: Private and Public Necessity
a) Necessary to prevent disaster – public policy
Torts Outline – Kahn-Fogel – Fall 2009

(i) Would endanger themselves, lives and property of other citizens

(ii) For policy reasons, a private person or the public may, in times of necessity, interfere
with another’s right to exclusive possession of real or personal property w/o permission.
b) Doctrine of Public Necessity
(i) One is privileged to enter the land in the possession of another if it is, or if the actor
reasonably believes it to be, necessary for the purpose of averting an imminent public
disaster
(A) Privilege to do any other acts on the premises reasonably necessary to
effectuate the purpose for which the privilege exists
(ii) In times of imminent peril the sovereign could, with immunity, destroy the property of a
few that the property of many and the lives of many more could be saved
(A) Many state statutes have been enacted to designate public officials as
authorized to determine the necessity for and to order the destruction of buildings
in the path of a conflagration.
(B) Exists only when acting under declaration by proper authority
(C) The liability of a possessor of land to a public officer or employee who enters
the land in the performance of his public duty, and suffers harm b/c of a condition
of a party of the land held open to the public, is the same as the liability to an
invitee.
c) The liability of a possessor of land to one who enters the land only in the exercise of a privilege,
for either a public or private purpose, and irrespective of the possessor’s consent, is the same as
the liability to a licensee
B. Nuisance
1. 2 Types: Private and Public
a) Private Nuisance Cause of Action
(i) Protects a possessor’s interest in use and enjoyment of their land
b) Public Nuisance Cause of Action
(i) Protects interests common to the public, such as the public’s health, safety, comfort
and convenience.
2. Nuisance usually requires proof that the interference with the land possessor’s interest was
unreasonable.
3. Nuisance can be public and private when a considerable number of people suffer an interference with
their use and enjoyment of land.
4. Private Nuisance
a) Non-trespassory invasion of another’s interest in the private use and enjoyment of land
b) It is the duty of every person to make a reasonable use of his own property so as to occasion
no unnecessary damage or annoyance to his neighbor.
c) Consideration must be given not only to the interests of the person harmed but also to the
interests of the actor and to the interests of the community as a whole.
d) The π must prove that:
(i) There was an invasion of the πs use and enjoyment of his or her property
(ii) The Δs conduct was the proximate cause of the invasion; and
(iii) Invasion was either intentional and unreasonable, or unintentional and the Δs conduct
was negligent or reckless
(A) Unreasonableness is an essential element
(B) Must take into account all interests involved under the circumstances.
5. Public Nuisance
a) Must affect a considerable number of people
b) Uses balancing test
Torts Outline – Kahn-Fogel – Fall 2009

(i) Particular usefulness of an activity may outweigh the inconveniences, discomfort and
changes it causes some persons to suffer
c) Interference with the comfortable enjoyment of life or property by an entire community or
neighborhood, or by a considerable number of persons
d) Factors determining if a public nuisance is an unreasonable interference with the right common
to general public:
(i) Whether the conduct involves a significant interference with the public health, the
public safety, the public peace, the public comfort or the public convenience, or
(ii) Whether the conduct is proscribed by a statute, ordinance or administrative regulation,
or
(iii) Whether the conduct is of a continuing nature or has produced a permanent or long-
lasting effect, and, as the actor knows or has reason to know, has a significant effect upon
the public right.
C. Remedies
1. Depends on balancing of the equities favoring each party as well as public policy issues

Intentional Torts
XIV. INTENTIONAL TORTS
A. Battery: D’s intent to harm P or place P in imminent apprehension and harm results
B. Assault: D’s intent to harm P or place in imminent apprehension and P is placed in imminent apprehension