MCALLISTER 1

Torts Outline

I. CAUSES OF ACTION
A) Intentional Torts:

1. Battery (Garratt p885, Picard p891)

2. Assault (Picard, Wishnatsky 893)
3. False Imprisonment (Lopez 902)
4. Trespass to Real Property (Martin 670)
5. Trespass to Chattels (Intel v Hamidi, Supplement)
6. Conversion (Intel v Hamidi, Moore Supplement)
7. Defamation (Romaine p. 973, Matherson p. 983)
8. Intentional Infliction of Emotional Distress (Womack 910)

Privacy

1. Public Disclosure of Private Facts (Haynes p. 1124)

2. Intrusion (Nader p.1167, Shulman p.1188, Sanders Supplement)
3. False Light (Cantrell p. 1159)
4. Appropriation (Zacchini p. 1209, Winter p. 1215)
5. Breach of Confidence (Humphers, p.1149)

Intentional Economic Torts

1. Misrepresentation (Ollerman p. 1236)

2. Interference with Contract (Imperial Ice, p. 1253)
3. Interference with Prospective Economic Advantage (Della Penna p. 1260)

B) Strict Liability Torts

1. Ultrahazardous Activities (American Cynamid p. 519)

C) Defective Products Torts

2. Manufacturing Defect (Speller, Supplement)

3. Design Defect (Barker 571, Camacho, 584, Jones 629, Halliday Supplement)
4. Inadequate Warning (Hood p. 596, Pittman, Edwards p. 607, Vassallo
Supplement, Liriano p. 633)

D) Negligence Torts
2

1. General negligence
2. Negligent Infliction of Emotional Distress (Falzone p. 264, Portee p. 286,
Dillon p. 286, Johnson p. 295)
3. Medical Malpractice (Robbins p.110, Sheeley p. 111).
 MCALLISTER 3

CHAPTER ONE: INTRODUCTION

- When Should Unintended injury result in Liability?
1. Hammontree v. Jenner (intentional Tort)

CHAPTER TWELVE: INTENTIONAL HARM

Assault elements: p. 892

- the act of D must be intentional (Intent)

- must create imminent (right then) apprehension in P of physical contact
that is harmful or offensive
- Injury (can be emotional)
- Causation

Battery Elements:

- 1) Intentional (intent)
- 2) Contact with the person of another that is,
- 3) either harmful or offensive, that is
- 3) Unconsented and unprivilaged
- 4) Causation
- 5) Injury (harmful contact)

Elements of false imprisonment:

1) Intent of D to confine P w/o consent

2) Barrier/unlawful confinement within boundaries fixed by actor
3) Causation (true for every tort)
4) Injury (true for every tort,)
 P must have knowledge of confinement or be harmed by it

Intentional Infliction of emotional distress w/o injury (IIED)

- 1) Extreme and outrageous conduct that

- 2) Intentionally or recklessly (you either want it to occur or you just don’t
care)
- 3) Causes severe emotional distress
- 4) Injury
- 5) Causation
4

A. Basic Doctrine
1. Intent (define this somewhere)
a. Garratt v Dailey In favor of P for D (minor) liable for battery, P
alleged D deliberately pulled chair out from under her causing her to
fall and fracture hip, D, 5 years old, D tried to replace chair, court
found he knew with substantial certainty P would attempt to sit
where chair had been
1. Application: D knew that P would attempt to sit where the
chair had been, therefore he had the intent required for battery
2. Battery illustration: The court implicitly accepted that P’s fall
to the ground was a contact for the purposes of battery, this
further sharpened the definition of battery permitting a court
to hold a five year old child liable for an intentional tort
 Main point: so long as a child is old enough to
understand a set of relevant social rules, his act that
breaks those rules may be a battery
3. Intent: An act is intentional if it is done either with the
subjective purpose of causing the contact or with knowledge
that the contact is substantially certain to result
2. Assault and Battery
Restatement §18, p. 893

(1) An actor is subject to liability to another for battery if

(a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and

(b) an offensive contact with the person of the other directly or indirectly results.

(2) An act which is not done with the intention stated in Subsection (1, a) does not
make the actor liable to the other for a mere offensive contact with the other's
person although the act involves an unreasonable risk of inflicting it and, therefore,
would be negligent or reckless if the risk threatened bodily harm.

Comment c:

- All that is necessary is that the actor intend to cause the other, directly or
indirectly, to come in contact with a foreign substance in a manner which the
other will reasonably regard as offensive. Thus, if the actor daubs with filth a
towel which he expects another to use in wiping his face with the expectation
that the other will smear his face with it and the other does so, the actor is
liable as fully as though he had directly thrown the filth in the other's face or
had otherwise smeared his face with it
- P. 893 highlighted portion
 MCALLISTER 5

Restatement §19 p. 895-896

A bodily contact is offensive if it offends a reasonable sense of personal dignity

Intent requirement for battery: Restatement (Second) §13

D must act “intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such contact”

Assault/battery distinction: It is possible to commit battery without assault. For

example, if D strikes a sleeping P, there is no assault because P could not apprehend
the harmful contact, but there is a battery because the harm occurred

a. Vosberg V Putiny, Notes case, in favor of P, P kicks D on leg after

the regular exercises of the school had commenced, D had a
preexisting condition, damages result that would otherwise have not
occurred if not for his condition
1. Application: Because P kicked D (contact), during school and
not recess for example his act was unconsented as it did not
occur during a time parties had been “engaged in boyish
sports”, such that they could have been at recess
2. It does not matter the injuries were not intended, only that
they occurred
3. Egg Shell Skull Rule: You take your victim as you find him
b. Picard v Barry, judgment in favor of P for assault and battery, P
was upset with D from service received during a brake inspection, P
returned with camera, D claims he never touched P only placed index
finger on camera
1. Battery Application: P’s camera was attached to or identified
with P’s body; it was clutched in her hands, D’s “offensive
contact with an object attached to…[P’s] body was sufficient to
constitute a battery”
 Note: case mentions canes and clothing as extensions of
persons
2. Assault Application: P was frightened when she was
approached by D, this indicates she had a reasonable fear of
imminent bodily harm, this caused her to spin around and
injure her back
c. Wishnatsky v Huey, Court in favor of D, D was engaged in a
conversation at a colleagues office, P enters without
knocking/announcing his entry, D pushed door closed knocking P
back into hall, P sues for battery
6

1. Rule of Law: Conduct is offensive if it “offends a reasonable

sense of personal dignity” of an ordinary person
2. Application: P indicated in affidavit he was a born again
Christian who was “very sensitive”, while rude and abrupt, D’s
contact with P did not rise to the level of battery because it
would not have offended a reasonable person’s sense of dignity
3. Restatement §19: Liable if he “acts intending to cause a
harmful or offensive contact”, attempt to balance inevitable
and unwanted contacts
3. False Imprisonment

Restatement § 38-41: details ways in which an action may bring about an unlawful
confinement required for false imprisonment

- Actual or apparent phyiscal barriers

- Overpowering phyiscal force
- Submission to phyiscal force
- Threats of phyiscal force
- Other duress
- Asserted legal authority
a. Lopez v Winchell’s, In favor of D for no false imprisonment, P
taken into backroom by employer who suspected her of stealing, D
locked door, although she did not want to P felt morally obligated and
voluntarily stayed in the room to protect reputation and left when she
wanted too
1. Application.
 Intent- here it was not intentional
 Barrier- Locked door did not constitute a barrier
because it was locked from inside, the moral pressure
she felt to stay was not good enough, nor was the future
threat of being fired
2. Voluntary confinement to protect reputation does not
constitute a barrier of false imprisonment, barrier can be
physical or mental but needs to exist
b. Marcus v Liebman- notes case, P voluntarily entered a mental
hospital, D threatened confinement to state mental hospital if P tried
to leave, P contends that this threat caused her to rescind her request
to leave
1. Comparison to Lopez: This threat of future confinement
constituted a non phyiscal barrier while in Lopez P left when
she wanted to
4. Intentional Infliction of Emotional Distress
 MCALLISTER 7

Elements of court adopted rule for recovery for intentional infliction of emotional
distress w/o injury (IIED)

- 1) Extreme and outrageous conduct that

o As judged by a reasonable person
o Heart of tort, judgment made by the court that embody social and
legal values
- 2) Intentionally or recklessly (you either want it to occur or you just don’t
care)
o Addition of recklessness allows more favorable interpretations to P in
that it does not require D’s knowledge of the distress
- 3) Causes severe emotional distress
o Medical testimony (psychiatrist, psychologist) provides a persuasive
index
- Injury
o Must be demonstrated, e.g. Distress caused P to seek therapy
- Causation

Criticisms:

- A like of defining “outrageousness” can lead to a broad interpretation and can

encourage excessive litigation and result in high administrative expenses
that burden society and the judicial system
- Can limit social interests in freedom of action and speech

Benefits:

- The vagueness of outrageous conduct provides flexibility in charging,

- It’s lack of basis in principle allows for “situational justice”

a. Womack v Eldridge P.910, in favor of P for IIED, P’s photograph

taken by D under false pretenses and used in child molestation trial
1. Rule: Physical injury is not necessary, emotional injury is
enough to satisfy requirement for IIED (restatement 46)
2. Application. Considering the seriousness of the consequences
and the outrageous behavior of using P’s photograph under
false pretenses, a reasonable person would recognize the
severe mental distress that would result from D’s behavior
3. Restament §46 at 71
 1)”one who by extreme and outrageous conduct,
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other
results from it, and for such bodily harm.”
8

 Comment d: “conduct that goes beyond all possible

bounds of decency and is regarded as atrocious and
utterly intolerable in a civilized community”
4. Midterm: As for IIED, under Womack or the Restatement, the key
issue will be whether Tom’s conduct was “outrageous.” Tom’s
snooping seems more unusual and objectionable under
contemporary social norms than was the reporter’s masquerading
in Womack.
b. Russo v White notes case, in favor of D, P sues D for allegedly
making 340 prank calls and hanging up, 2 month period
1. Application. D did not say anything during phone calls, thus
no physical injury
2. Note: More D friendly because it requires showing a physical
injury
5. Trespass to Chattels (Supplement)
a. Intel corp, v Hamidi, In favor of D for no trespass to chattels, D
sent emails to P’s employees criticizing P’s employment practices, P
sued for trespass to chattels alleging that D’s communications caused
a loss of productivity in there employees and time for them to try and
prevent communications
1. Rule Trespass to ChattelsIntentional interference with
personal property and actual injury
2. Rule of Law: The damage must be real physical damage
3. Application: P’s emails did not actually damage or slow D’s
computer system thus it did not interfere with D’s property
6. Conversion
a. Moore v Regents of the University of California, In favor of
D for their use of P’s biological material not constituting conversion,
P’s cells were valuable because they were over producers of
lymphocytes, D used P’s genetic information to create and sell a
research line
1. Rule of law: Once cells leave your body, you no longer
maintain ownership
2. Application: The cells once outside of his body do not
constitute a tangible personal property capable of being
converted
3. Note: Concurrence argues that the conversion happened when
the cells were in his body

7. Defenses and privileges

a. Consent
 MCALLISTER 9

Definition: Consent is willingness, or assent, it may be communicated by language

or manifested by a physical act

Note: Unless D’s conduct exceeded the scope of the consent

Tip: Inaction can act as a form of consent

- E.g. P sues for false imprisonment but does not object at any time during
imprisonment

1. Hart v Geysel, Court for D, P (executor) sued for wrongful

death in an illegal prize fight by D, no anger/malice, both
fighters consented
 Majority Rule: When parties consent to mutual combat
in anger both parties are liable to each other where they
engage in combat in anger (used when deadly weapons
are involved)
 Minority Rule: “ “ parties denied relief in the absence of
excessive force or malicious intent (fist fighting)
 Application: Neither rule used here because even
though prohibited by law P cannot recover because he
consented to the fight and their was no malice
2. O’Brien v Cunard, Notes case, Court for D, P sued for
assault (battery), because she was vaccinated although she had
protested to D (surgeon) she had already been vaccinated, D
said no mark on arm, P held out arm for vaccination
 Application: By holding out her arm P gave consent
 Implicit consent: She implicitly consented to the
vaccination by putting out her arm,
3. Barbara A v John G, Notes case, D convinces P to have sex
with him stating she won’t get pregnant, P gets pregnant,
refuses to pay legal fees, D sues, P counter sues, court finds for
P
 Main Point: Consent cannot be fraudulently obtained, P
has a battery claim
 Main Point: Scope of consent you consented to one
thing, not another
 Implied consent 2: In some instances just by living in a
busy world we all consent to a certain amount of
conduct, e.g. we also consent to being called on in law
school, it’s the nature of the beast, two types
b. Self Defense (assault, battery, unlawful confinement)
Elements
10

- 1) Reasonable belief of imminent threat of serious bodily injury or death and

2) if D does not have a reasonable means of escape (restatement §65)

Uses: most often the threatened harm is battery

(A person may use self-defense when they have reasonable grounds to believe that
he is being, or is about to be, attacked, he may use such force as is reasonably
necessary for protection against the potential injury)

How much force maybe used? One may use only that force that reasonably appears
to be necessary to prevent the harm. One may not use force likely to cause death or
serious bodily injury unless he reasonable believes that he is in danger of serious
bodily injury – Courvoiser.

1. Courvoisier v Raymond, In favor of D, D assailed by mob

of rioters outside his jewelry shop, fires shots in the air to scare
rioters, shots attract police officer (P), D shoots P thinking he
was a rioter, P sues
 Rule: 1) Reasonable belief of imminent threat of serious
bodily injury or death and 2) if D does not have a
reasonable means of escape (restatement §65)
 Application: A person may be justified in using force
not only against those who actually endanger his life but
also against those whom a reasonable person in the
same circumstances would be believe endanger his life
c. Protection of Property, Generally, one may use reasonable
force to prevent the commission of a tort against her property.
However one may not use force that will cause death or serious bodily
injury –Katko
1. Katko v Briney, In favor of P, D set up a spring gun in a
bedroom of an unoccupied farm house that was boarded up
because of a series of break-ins and thefts, P and friend seeking
to steal old bottles/dated fruit jars, broke into house, as P
opened bedroom door the weapon went off causing serious
injury to P’s leg
2. Application: D cannot do what he is not allowed to do in
person, the value of life outweighs the property interest of the
land owner, he has not right to use force likely to kill or inflict
serious harm unless self defense or another privilege is
involved. (One may not use indirect deadly force such as a
trap, spring gun, or vicious dog when such force could not
lawfully be directly use against a mere trespasser.)
3. Restatement §85: One is not privileged to use deadly force to
defend property “unless the intrusion threatens death or
serious bodily harm to…occupiers or users”
 MCALLISTER 1
1

4. Posner test p942: Factors to consider regarding the use of

force to protect property
d. Private Necessity (Defense against trespass)
Private Necessity- where the act is solely to benefit a D’s private interest (e.g . the
actor ties up his boat to another’s dock in a storm), the defense is qualified; i.e. that
actor must pay for any injury he causes. Exception: The defense is absolute if the act
is to benefit the owner of the land.

1. Vincent v Lake Erie Transportation (p.945 top), in

favor of P, D during a storm moored their boat to P’s dock, D
non negligently saved boat at the expense of the dock,
 Application: D’s conduct could be viewed as analgous
to a trespass to real property, except D had permission
but if he had not, the storm gave D the right to use P’s
property, D is still liable for the damage that results
from its usage
 Starving man analogy: Starving man steals food to
survive, he is not absolved from repayment once
nourished
2. Holding You can’t damage either a person or property unless it
was…
 You don’t have a defense in destroying others property
unless the it was due to something out of your control
3. Cordas v Peerless transportation p946, P was injured by a
cab that was driven by D, D jumped out of cab to save his life
because a third party was threatening him with a gun,
 Rule:
 Application: Because D was trying to save his own life
(priate interest/necessity) (he is not liable
 Note:

CHAPTER THIRTEEN: DEFAMATION

A. Common Law Background
1. What is Defamatory?
Threshold element: whether the statement was defamatory

(statements are always supposed to be fault, issue lies in interpretation)

Defamation: Defamatory language on part of D, that is of or concerning P,

publication, to a third party, injury to the reputation of P, and the statement must be
12

considered defamatory according to the fair and natural meaning attributed to it by

persons of ordinary intelligence

Elements

1. Defamatory language on the part of the D;

2. The defamatory language must be “of or concerning” the P (i.e. it must identify the
P to a reasonable reader, listener, or viewer);

- This can show up when we are not sure who exactly is being defamed if they are
saying something about a group

3. Publication of the defamatory language by the D to a 3rd person; and

4. Injury to the reputation of P;

5. The statement must be considered defamatory according to the fair and natural
meaning attributed to it by persons of ordinary intelligence

Sting of the accusation: Applies when an allegedly defamatory statement is not

directly true but captures the essence of an accusation. For example, if A is a robber
and is accused of being only a thief, B would still have a truth defense because the
sting of B’s statement would be the same as if he had really called A a robber

p. 974, 2nd to last paragraph, 3rd sentence: the ordinary meaning attributed to words

a. Romaine v Kallinger (Linguistic dimension) p.973, In

favor of D, P sues publisher for a passage in a book alluding to P
having knowledge of a junkie, the passage stated “Besides, Maria
was eager for news from Randi about a junkie they both knew who
was doing time in prison on..”
i. Rule: Defamatory language on part of D, that is of or
concerning P, publication, to a third party, injury to the
reputation of P, and the statement must be considered
defamatory according to the fair and natural meaning
attributed to it by persons of ordinary intelligence
ii. Application: The fair and natural meaning of this phrase
according to a person of ordinary intelligence could not be
construed as being defamatory, two step inquiry, thresh
hold issue: whether its possible for defamatory meaning,
two: whether the jury would consider it defamatory
iii. Worry: We should think about whether a word has more
than one meaning, this is what the court in wil
iv. Note 3 p 978
 MCALLISTER 1
3

v. Restatement §559: Says that a communication is

defamatory if “it tends to cause harm to the reputation of
another as to lower him in the estimation of the community
or deter third persons from associating or dealing with
him”
b. Matherson v Marchello (social dimension), In favor of P,
during a radio interview with D’s they stated they were no longer
allowed to play at a certain establishment because “we used to fool
around with his (P) wife” and “somebody started messing around
with his boy friend”, P’s sued for defamation as a result
i. Rule: Defamation (see Wilkow below)
ii. Application: The fair and natural meaning of the first
remark could have been interpreted to mean P was having
an affair with one of the D’s, the second comment about
homosexuality was questionably defamatory, at the time
(1980’s) homosexuality carried negative connotations, the
turning point in the case was that none of these statements
were true
iii. Note: Never just say a statement is defamatory explain
why it is defamatory, be sure to argue both sides
iv. Think about: Insults, name calling, Parody (where the
defamation took place, i.e. if it is something that people
won’t take seriously)
v. Midterm: In the context of defamation, much will depend of
factual questions not entirely addressed here—whether the
video is clearly defamatory and is clearly “of or concerning”
Vivian
c. Wilkow v Forbes Inc (supplement p. 172), In favor of D
for no defamation, P (Wilkow) owned an office building and D ran
a column in the newspaper stating that P “stiffed” the bank by
paying 55M on a 93M loan and either “pleaded poverty” or was in
poverty in order to not pay the loan, P sues alleging defamation
i. Rule: Defamatory language on part of D, that is of or
concerning P, publication, to a third party, injury to the
reputation of P, and the statement must be considered
defamatory according to the fair and natural meaning
attributed to it by persons of ordinary intelligence (old)
ii. Rule: In defamation cases, if a statement is an opinion it is
purely subjective, then not actionable (new)
iii. Application I: D’s statements would not be considered
defamatory, by using the phrase “pleaded poverty” a
reasonable person could interpret that to mean the
partnership could not repay the loan out of money received
14

from building tenants (not that he was destitute which

would have been defamatory), this arguably not hurt his
reputation as it embodies capitalism (especially given
audience of Forbs magazine), D did not misstate any of the
details of the situation, the fact that
iv. Note:
2. Defamation Defenses
a. Truth
General: Eliminates liability to D, P has the initial burden of proving D’s statements
are false

The sting of the accusation:

Absolute Privilegeeliminates liability to D, applicable to witnesses, judges, jurors

(in judicial proceedings), federal and state legislative members (on the floor), the
executive (cabinet grade executives of state/federal governments),

Qualified PrivilegeCommon Interest: is one made to a person upon a subject of

mutual interest (e.g. they were both members of the tenant board). The idea behind
this is that it fosters a flow of information between persons sharing a common
interest

Qualified PrivilegeFair and accurate report privilege: Report of official

action/ proceeding is open to the public as long as it is fair and accurate and no
malice is shown, applies to anyone who is sharing the function of the press (e.g.
Bloggers)

- Most likely defense to be used on exam

- When to see: think of rationales behind the privilage p. 1010-1011

Fair comment:

If political: Facts need to be true or privileged, needs to be a matter of public

interest, D can’t have used malice

- Purposes
1. Public officials must have transparency
2. The public has an interest in learning important matters

Restatement §596: Common interest privilege has been applied to; employees of
an organization, members of a faculty/tenure committee, and constitutent
physicians of a health care place tenants on a tenant committee count as having a
common interest, baseball players are part of team with a common goal of doing
 MCALLISTER 1
5

well just as tenants on a tenant committee have the common interest of their
building and its residents

Times Standard of Malice: “statements were made with a high degree of

awareness of their probable falsity”, knowledge or reckless disregard of statements
falsity

Common Law Malice Standard: spite or ill will

a. Privilages
b. Liberman v Gelstein (common interest privilage), In
favor of D for because common interest privilage, P a land lord,
sued D for implying P was bribing police officers for parking, D
asked a fellow member of the tenant board which “cop was on the
take from Liberman”
i. Rule: Qualified PrivilegeCommon Interest: is one
made to a person upon a subject of mutual interest (e.g.
they were both members of the tenant board). The idea
behind this is that it fosters a flow of information between
persons sharing a common interest
ii. Application: because the statements made by D were to a
fellow tenant board member the statement was privileged
iii. Note: If P could prove that D’s statements were made with
knowledge or reckless disregard of whether or not it was
false (times malice standard), or was made with spite or
ill will (Malice standard) the conditional privilege could be
defeated, but this was not indicated
iv. Examples: last paragraph p. 1000,
c. Medico v Time, inc, In favor of D because of fair and accurate
report privilege, D published a story that summarized FBI reports
indicating P was a member of organized crime,
i. Rule: Qualified PrivilegeFair and accurate report
privilege: Report of official action/ proceeding is open to
the public as long as it is fair and accurate and no malice is
shown, applies to anyone who is sharing the function of the
press (e.g. Bloggers)
ii. Application: D’s report was a fair and accurate summary of
the report, although this privilege generally requires the
report be of a public proceeding (divorce,etc), the FBI
report meets the criteria
d. Constitutional defenes If we see a constitutional
defense note it, (1st amendment)
i. When does it come up: When we see a celebrity/public
figure being defamed
16

ii. 1st amendment The public has a right to know certain

things

CHAPTER FOURTEEN: PROTECTING PRIVACY

A. Public Disclosure of Private Facts
Rule: If a reasonable person would find the disclosure of private facts highly
objectionable the P has a cause of action and this is balanced with the
newsworthiness of the contract according to Haynes

Restatement §652D: One who gives publicity to a matter concerning the private
life of another is subject to liability to the other for the invasion of his privacy, if the
matter publicized is the kind that (a) would be highly offensive to a reasonable
person and (b) is not of legitimate concern to the public
D is subject to liability when:

1) The facts would be highly offensive to the reasonable person

2) The facts are not public occurrences

3) The facts are not a matter of public record

Difference with Defamation: Here, facts are true

Breach of Confidentiality Elements

- Non personal, confidential communication

- The information must be confidential

Defining a professional relationship:

- Humpher’s approach: Look to legal documentation

- Columbia Law review: Look to custom (used less because it casts a wide legal
net as to what is typically considered a confidential relationship)
-
1. Haynes v Alfred A Knopf (Public Disclosure), In favor of D, D’s
had published in a historical novel and context facts relating to P’s earlier
life (25 years prior) depicting him as an unemployed alcohol abuser who
neglected his children
 Rule: If a reasonable person would find the disclosure of private
facts highly objectionable the P has a cause of action and this is
balanced with the newsworthiness of the contract according to
Haynes
 Application: The story did not invade P’s privacy by disclosing
personal facts that were not already publicly available (divorce
hearing), and balanced against the legitimate news worthiness and
 MCALLISTER 1
7

public interest because of the historic nature of the book, D’s are
not liable
 Midterm: The fact pattern suggests that the coverage was journalistic
and respectful. Furthermore, Vivian’s child-rearing methods were
sometimes on public display, as part of her yard was visible to
passersby on the street. The importance of the topic also seems to
favor Tom—child neglect is a newsworthy topic. Tom would also be
able to invoke the argument in Haynes concerning personalization and
the way it enhances the credibility of a story. Overall, Vivian will not
succeed on this claim.
 Newsworthiness Defined: titillating, public record, not offensive
2. Humphers v First Interstate Bank, In favor of D for no public
disclosure but P for breach of confidentiality, P had 1st child adopted and
later started a new family, D revealed medical information under false
pretenses to enable daughter to find mother (21 years later), P was
emotionally distressed from the experience
 Application: because child was P’s daughter and she was the only
person the information was disclosed to, P was not guilty of
invasion of privacy, but because D had a confidential, professional,
doctor/patient relationship with P, by giving P’s child access to
information D breached P’s confidentiality
B. False Light Privacy
False Light rule

- Publicity (Must be distributed to a reasonable number of people)

- Publication must be offensive to a reasonable person
- There must also be causation and injury

If News worthy matter the additional element applies:

- Knowing of falsity or reckless disregard for the truth (Times malice

standard)
1. Cantrell v Forest City Publishing Co, in favor of P for false light,
P’s husband was killed after a bridge collapsed, D had published a story
on the collapse and returned 5 months later to conduct follow up
interview, P not home so children were interviewed and photographed,
story released stressing families poverty, houses deterioration, and
children’s poor clothing, it was conceded that story had a number of
inaccuracies and falsehoods, P sues for “false Light
 Application: The article was published in a newspaper and
presented P in a humiliating false image by recklessly publishing
the article with knowledge of its probable falsity and
 Dissent: Argues the collapse of the bridge placed P in the public
eye and because although there was malice according to the times
18

standard, there was none according to the common law standard,

thus because both standards of malice were not met P was not
portrayed in a false light
2. Douglas v Hustler, Notes case, in favor of P for false light but D
overall, P had agreed to have nude photos taken for Play Boy but photos
were published in Hustler
 Application: The court found Playboy to be relatively tasteful
compared to the “vulgar and offensive” character of hustler and
that as such the use of her photos in Hustler was portraying her in
a false light because it was degrading, but because P was a public
figure and the matter was published P was required P to meet the
Times Standard of Malice and couldn’t
3. Time v Hill, Notes case, in favor of D, D published article implying that
a broadway play was a truthful re nactment of events that took place
when P’s were kidnapped in which P’s family was taken hostage and
treated poorly and P’s bravely resisted but in reality they were not
treated poorly
 Application: D’s publication had an affect on P’s image that was at
variance with the facts but it did not meet the Times standard of
malice in that the article was not published with knowledge or
reckless disregard of it’s falsity
 Note: The Malice requirement is built in to give the media an extra
protection because they get a lot of stories
 Dissent: Found that the fictionalization seemed to support a
finding of “knowing or reckless falsity” because they connoted a
departure “from fact and reality” that was deliberately false and
this image was portrayed to a lot of people
C. Intrusion
Intrusion Approaches:

- Approach I (Nader): 1) confidential information 2) investigative method is

unreasonably intrusive (Restatement 867)
- Approach II (Shulman) is concerned with how common something is
o 1) reasonable expectation of privacy in location/conversation/data
o 2) offensiveness of intrusion measured by
 (a) motive for intrusion or
 (b) unusual method

Restatement §867: Liability attaches to a person who unreasonably and seriously

interferes with another’s interest in not having his affairs known to others

Restatement §652b: Defendant is subject to liability for intrusion (phyiscal or

other) upon the solitude, seclusion, or private life and affairs of plaintiff, provided
the intrusion would be highly offensive to a reasonable person
 MCALLISTER 1
9

1. Nader v General Motors Corp (p.1167), In favor of P for

unreasonable intrusion, P was a critic of D and its practices, D engaged in
a campaign to intimidate P by: putting him under constant surveillance,
wiretapping his phones, and eaves dropping on his conversations in an
effort to suppress his criticisms
 Rule: (Nader): 1) confidential information 2) investigative method
is unreasonably intrusive
 Application: There is a cause of action based on P’s right to be
free from intrusions in private matters and because the
information sought after while some of it could have been publicly
available the “overzealous” nature of the surveillance went beyond
what was publicly available to confidential information and the
methods used (wire tapping, constant surveillance, eavesdropping)
to obtain this information were unreasonably intrusive
 Note: Although constant surveillance took place in public areas
due to its constancy it constituted an invasion of privacy
 Midterm: Vivian should rely on the first meaning, stressing that she
could not reasonably have anticipated that a hidden camera would be
installed as part of the toy. Tom should rely on the second meaning,
emphasizing that the subject of the inquiry—child welfare, the same
subject in Plaxico v. Mitchell—is serious enough to outweigh the
method of surveillance. Under Nader, Tom will also argue that all the
information he gathered was visible from the street and therefore
available through ordinary investigation. Vivian may counter that she
has partly fenced her yard and obstructed the view
 Unreasonably Intrusive defined: The term “unreasonably
intrusive” can mean one of two things: (a) whether plaintiff could
reasonably expect a particular kind of investigation (the Jones case);
(b) whether the seriousness of the subject investigated justifies the
degree of intrusion imposed (Plaxico)
2. Jones Case (note 4 p.1174), Notes case on unreasonableness of
method, in favor of D, workers comp claim, D investigated P through
videotaping him outside his home urinating (public place)
 Rule: Depending on the type of investigation, P should expect a
certain degree of intrusion
 Application: Because it was a workmans compensation claim,
there was an expectation that his claims would be investigated,
and therefore the videotaping in a public place was acceptable and
because it was in a public place not confidential information
3. Plaxico Case, Notes case on unreasonableness of method, D
photographed his ex wife through an open window in their bedroom with
her lesbian lover, P was half naked
 Rule: The level of intrusion is balanced against the seriousness of
what is being investigated
20

 Application: normally this may be considered intrusion but

because it was in regards to a divorce case and the best interest of
a child, it was not considered unreasonably intrusive
4. Saunders v American Broadcasting p. 179 supplement, P
was a tela psychic and D went undercover recording her conversations
with other employees that took place at her cubicle and in the area
surrounding it (cubicles were close together and it was easy to overhear
conversations in other cubicles),
 Rule: Shulman below
 Application: It is fair that P not expect privacy from the people at
her office as they could have heard her conversation by being
there or even from another employee but does similar to Shulman
does have the right to not have her conversation broadcast to the
public
 Nader Application: Using a hat cam constitutes an unreasonably
intrusive method but the recorded conversations may not have
constituted confidential information especially since only two
conversations were recorded which could not rise to the level of
“overzealous”
5. Shulman p. 184 supplement, Woman was hurt and was recorded
while in an ambulance,
 Rule: Approach II (Shulman) is concerned with whether an
intrusion, 1) interferes with a private place, matter, or
conversation; 2) in a manner that would be objectionable to a
reasonable person
 Application: While severely injured in an ambulance P had a
reasonable expectation of privacy despite the fact that people
involved in her rescue may have overheard her conversation, she
had the right to not have it broadcast on live television and be
heard by the general public
 Rule of Law: mass media videotaping may constitute an intrusion
even when the events and communications recorded were visible
and audible to a limited number of observers at the time
 Midterm: Vivian can make a strong claim under Schulman: (1) the
motive—gathering news—is the same; (2) the use of a hidden
camera on a toy is neither frequent nor expected. Tom will reply
on the fourth factor, stressing that Vivian was not injured or
vulnerable, as was the plaintiff in Schulman, and therefore could
have inspected the toy, identified the camera, and protected
herself. Ultimately, given the unusualness of a hidden camera,
Vivian stands a good chance of succeeding on her intrusion claim.
 Note: a defense to Shulman in a hypo could be that the P was not
vulnerable as the P was in Shulman
D. Appropiation
 MCALLISTER 2
1

Appropiation elements (Zacchini):

- Broadcasting entire act

- For which P ordinarily gets paid
- Without consent

Restatement §652C: Liability against “one who appropriates to his own use or
benefit the name or likeness of another”

Appropiation elements (Winters):

- Knowledge
- Use of likeness
- For financial Benefit
- Without consent
- Unless transformative use or the primary value does not derive from use of
likeness

In General: a P has a right in matters that are confidential to himself and in public
appearances for which he may charge admission or require payment for their
reproduction, thus a commercial medium cannot appropiate that information or
those images for its commercial use unless it buys the right to do so from P

1. Zacchini v Scripps-Howard Broadcasting Co, in favor of P, P

had a “human cannon ball” act lasting 15 seconds that was broadcast by D
with out P’s consent and shown on a news program, P sued claiming his
whole act had been appropriated
 Application: Despite news worthiness of cannon ball act P has “a
right of publicity” for his work that should be respected, without
P’s consent this appropriation was a threat to the economic value
of P’s performance
 Dissent: The first amendment should protect the news media
absent a showing of an attempt to exploit the value of an act
2. Winter v DC Comics, In favor of D’s for acts not transformative
enough to constitute likeness of P’s, P’s (Autumn Brothers) are two
celebrity musicians that were featured in comic book series called
“Autumns of Our Discontent” as villainous worms that were vile, stupid,
and cowardly. P’s allege that D misappropriated their names and
likenesses
 Application: there must significant creative elements added so
that the work is transformed into something more than a mere
22

celebrity likeness, here the artist raised the affirmative defense

that his work was protected because it contained significant
transformative elements, it did not commercially exploit the
celebrities fame
 Note: there is a balancing between the right of publicity provided
by appropriation with the media’s 1st amendment rights to
freedom of speech, based on whether the work is transformative,
if the artist exploits the celebrities fame then the artists right of
free expression is outweighed by the right of publicity
 Dissent:
3. White v Samsung electronics (notes of Winter) p.1221, In favor of P for
D’s acts as transformative, D (Samsung) made a television commercial
using the likeness of Vanna White to sell VCR’s, the commercial depicted a
female shaped robot wearing the clothing Vanna wears a lot of the time,
 Rule: Knowledge, Use of likeness, For financial Benefit, Without
consent, Unless transformative use or the primary value does not
derive from use of likeness
 Application: Because D’s were using her image to profit from the
sale of televisions they were profiting from the use of her likeness
 Note: D’s tried to invoke a constitutional defense based saying
their robot commercial constituted protected speech but this fails
because they were trying to make profit

CHAPTER FIFTEEN: INTENTIONAL ECONOMIC HARM

A. Misrepresentation
Ollerman Misrepresentation rule

Traditional rule for misrepresentation (not viewed as adequate by Ollerman)

- No duty to disclose unless

o 1) fiduciary relationship
 A relationship where one party has substantially more power
than the other, meaning you go into a relationship assuming
some one is going to protect your interest
 E.g. doctor/ patient, Ollerman would not be a feduciary
relationship
o 2) active concealment or prevention of investigations
o 3) half truth
 This limits the ability of the buyer to protect themselves
because sellar has already disclosed all facts or at least buyer
thinks so
o 4) facts knowledgable to the sellar
 information only the sellar would likely know
 e.g. The well was underground in Ollerman
 MCALLISTER 2
3

Arguments for traditional rule: Encourages responsibility and investigation on

part of P’s, representitive of a free market society, discourages laziness in buyers,
doesn’t create incentives for buyers to wait till something goes wrong and go to
court (decreases litigation expenses),

Arguments for Ollerman Standard: 1) Times have changed, there is no 19th

century mentality of self protection, there is a more empathetic perspective

1. Ollerman v O’Rourke, Non Disclosure in favor of P, P was a non

commercial purchaser who alleged that he would not have purchased
from D or would have purchased at a lower price because D did not
disclose the home had an underground well beneath it
i. Rule: If there is a professional seller and a non professional buyer,
then there is a duty to disclose facts that are a) material to the
transaction and b) not easily discernable to the buyer
ii. Application: D had knowledge about the presence of the well that
was not readily discernable to the purchaser P, the presence of the
well was “material” to the transaction because it is a fact that the P
would attach importance to in determining whether or not to
purchase
iii. Note: A vendor has knowledge of a fact if he acts in reckless
disregard of its existence
iv. Note: If a fact would not regularly be considered “material” to a
purchaser but D knows about it, then D is still subject to liability
B. Interference with contract
Rule on breach

Imperial Ice/ Induced Breach: An action lies if D intentionally uses a) means that are
are unlawful (assault, etc) or b) moral, economic or social pressure unless there is
sufficient justification to induce the breach of a contract

Restatement §766: One who intentionally and improperly interferes with the
performance of a contract (except a contract to marry) between another and a third
person by inducing or otherwise causing the third person not to perform the
contract, is subject to liability to the other for the pecuniary loss resulting to the
other from the failure of the third person to perform the contract

1. Imperial Ice Co v Rossier, In favor of P for induced breach, P had an

exclusive contract with Coker to sell ice in a certain area, D induced Coker
to break that contract and buy ice from D an resell it at a profit, P sued D
for inducing Coker to break contract
i. Rule: Imperial Ice/ Induced Breach: An action lies if D
intentionally uses a) means that are are unlawful (assault, etc) or
24

b) moral, economic or social pressure unless there is sufficient

justification to induce the breach of a contract
ii. Application: D induced by offering ice at a cheaper price to induce
Coker to breach their contract with P in order to gain a
competitive advantage and in doing so used unjustified economic
pressure
iii. Note: Inducing a breach is not justifiable simply to gain an
economic advantage
iv. Note: Inducing a breach is justifiable when the public good
outweighs the contractual interest or when D is seeking to protect
a contract already in force on his behalf
v. Note: If D is unaware that there actions are causing the breach of a
third party contract they are not liable
C. Interference with perspective Economic Advantage
Difference with Interference with contract: The action for interference with
prospective advantages differs from inducement to breach a contract in that an
action here does not require a contract. It is sufficient if some prospective
relationship is disturbed

Elements:

- 1) A prospective or future advantageous relationship

- 2) The intentional interference with that relationship; and
o by a showing of “restraint of trade, including monopolization” Justice
Mosk test
- 3) Damage caused by that interference

Restatement §767: factors to determine whether or not an intentional interference

with a contractual or perspective contractual relationship is improper:

- 1) The nature of the actors conduct,

- 2) The actors motive,
- 3) The interest of the other with which the actors conduct interferes,
- 4) The interests sought to be advanced by the actor,
- 5) The social interests in protecting the freedom of action of the actor and the
contractual interests of the other,
- 6) The proximity or remoteness of the actor’s conduct to the interference,
and
- 7) The relations between the parties.
1. Della Penna v Toyota Motor Sales USA, In favor of P for the
burden to prove D’s interference was wrongful, P was a wholesaler
bought Lexus’s from retailers and exported them to Japan, D in an effort
to prevent Lexus’s from reaching Japanese markets compiled a list of
“offenders” and warned its dealers that if they did business with them
they would face sanctions
 MCALLISTER 2
5

i. Rule: 1) A prospective or future advantageous relationship 2) The

intentional interference with that relationship by a showing of
“restraint of trade, including monopolization” Justice Mosk test 3)
Damage caused by that interference
ii. Application: D’s interference with P’s business relationship with
the third party Lexus dealers by restricting P’s ability to trade
Lexus’s significantly impacted the livelihood of P’s business
iii. Note: P has the burden to prove D’s interference was wrongful

CHAPTER SEVEN: STRICT LIABILITY

Note: If the dangers cannot be reduced by the exercise of due care strict liability is
favored.

Comparison between §520 and §20 restatement 3rd: Restatement Third looks
only at whether dangers can be reduced by the exercise of due care AND whether
the use is common. It does not take into account location, doesn’t really address the
value of the activity and how it weighs against the risks. It seems like restatement
3rd is more P friendly while restatement 2nd is more D friendly because 2nd has more
justifications for carrying on a specific activity

Restatement §520: Factors to consider deciding whether an activity is “abnormally

dangerous” / ultra hazardous P. 520

1. Probability of harm
2. Likelihood that harm will be great
3. Inability to eliminate risk by reasonable care
4. Value of the activity
5. Location
6. Extent to which its value to the community is outweighed by its dangerous
attributes
Restatement 3rd §20: Abnormally Dangerous Activities

(a) An actor who carries on an abnormally dangerous activity is subject to strict

liability for physical harm resulting from the activity.

(b) An activity is abnormally dangerous if:

(1) the activity creates a foreseeable and highly significant risk of physical harm
even when reasonable care is exercised by all actors; and

(2) the activity is not one of common usage.

Interpretation: Restatement Third looks only at whether dangers can be

reduced by the exercise of due care AND whether the use is common
26

Rationales for ultrahazardous activity:

1) Law and economics--should D be given an incentive to adopt an entirely different

activity? 2) Corrective justice---is it fair to hold D to strict liability because the
dangers D is creating are different in kind than those created by others? 3) Will the
application of strict liability result in more or less administrative efficiency?
(General observations: Strict liability=speedier and more efficient resolution of
cases, perhaps more litigation.)

Think about:

Is the activity at issue ultrahazardous or like the enumerated ultrahazardous

activities (dynamiting, the keeping of wild animals, etc)? Does American Cynamid or
Restatement Third benefit one party more? Do the rationales for ultrahazardous
activity approaches apply?

A. Doctrinal Development
1. Guille v Swan (notes case), In favor of D for strict liability applying
restatement 520, man takes off in hot air balloon, landed accidently
without negligence in a vegetable garden, and people that had been
waiting to rescue trampled the garden, home owner (P) sues balloonist
for damages
a. Rule: Restatement §520 1) risk of harm, 2) Likelihood that
harm will be great, 3) Inability to eliminate risk by reasonable
care, 4) Extent to which the activity is not a matter of common
usage, 5) Location, 6) Extent to which its value to the community is
outweighed by its dangerous attributes
b. Application: 1) probability of harm great, 2) the chances of harm
ensuing could have been great given the area, 3) accidents could
not be prevented by the exercise of care because ballooning was
not developed, 4) the activity was not a matter of common usage
since there was no presumption that it was a highly valuable
activity, 5) the activity was innappropiate to the place where it
took place, 6) the value to the community was not great enough to
offset its unavoidable risks
2. Indiana Belt Railroad Co v American Cynamid Co 724, In
favor of D against strict liability, P was a railroad company paid by D to
ship a hazardous chemical, during the shipping process P’s railroad car
leaked hazardous chemical in the vicinity of a Chicago supberb requiring
decontamination measures that cost 981,022. P sued to recover damages
a. Rule: See factors supra
b. Application (negligence standard more applicable): While the
chemical was hazardous in that it was both highly flammable/toxic
and could explode and destroy evidence, in this case it did not,
making it premature to impose strict liability, furthermore the
accident occurred due to the carelessness of the actors not the
 MCALLISTER 2
7

properties of the chemical they were shipping, thus making a

negligence standard more applicable,
c. Rationales: here the court mostly looked at exercise of reasonable
care and innappropiateness of activity in the place where it is
carried on factor (location), stating that imposing strict liability on
P could cause even more damage because shippers would have to
reroute shipments to avoid populated areas, thus increasing risks
to rural locations which also have poorer train tracks
d. Applications for strict liability: Blasting, ultra hazardous
activities, walking a tiger in the street, keeping a gorilla chained up
in your yard
e.
 Rationale for: If your carrying on an antisocial activity
(walking a gorilla/tiger) it is only fair that you can be held
liable for that activity

CHAPTER EIGHT: LIABILITY FOR DEFECTIVE PRODUCTS

Note: Products liability claims are available ONLY for injuries created by products.
The defendants can be only manufacturers and retailers.

Manufacturing Defect and Test

Basic idea: The design and warnings were adequately safe, but there was a flaw in
the way that the product was made.

Common issues:  Can P show that product was the cause-in-fact of his injuries?
Under Speller, can P show that the harm at issue is the kind that usually is
attributable to a defective product?

Speller: Without specific proof of a defect, a defect may be inferred when the
incident at issue was a) the kind that ordinarily occurs because of a product defect
and, b) was not solely the result of causes other than the defect

Design Defect: (Barker/Soule, Camacho, Halliday, Ryobi)

Threshold Issue: Which test should apply to P's case, some form of consumer-
expectation test or some form of risk-ultility test?

a) Soule: Consumer-expectation test applies only when the product is simple OR its
performance is so obviously unsafe that a consumer would know that the product
had not operated as intended.

b) Camacho: Even when a consumer-expectation test could apply and when it

would benefit D (b/c dangers were open and obvious), court should apply the risk-
28

utility test, because it creates the best incentives for manufacturers to make
innovative but safe products.

Design Defect Tests

A defective design if: under this two prong test (A & B)

A) the product when used in a reasonably foreseeable/ intended way fails as

measured by the minimum expectations of what a reasonable consumer would
expect

Note: If this analysis requires expert testimony/interpretation then the consumer

expectations test is abandoned in favor of a cost benefit test would then be
performed

OR

B) Cost benefit analysis, formulas below (Barker, Pittman, Holliday)

Arguments against/for consumer expectations test

- consumer expectations are uneven and unfair (D’s argument)

Barkers cost/ benefit factors: (p.571)

1. Gravity of the danger posed by the challenged design

2. Likelihood that such danger would occur
3. The mechanical feasibility of a safer alternative design
4. Financial cost of an improved design
5. Adverse consequences to the product and to the consumer that would result
from alternative design

Camacho factors: To determine if a product is unreasonably dangerous, consider,

1. Utility of a product
a. It’s usefulness and desirability to user and public
2. Availability of a suitable substitute
a. That would meet the same needs and not be unsafe
3. Safety aspects of a product
a. Likelihood that it will cause injury and the probable seriousness of
the injury
4. Ability to improve safety without impairing usefulness or making it to
expensive to maintain its utility
a. Utility=usefulness and desirability
5. User’s ability to reduce danger through diligent care
6. The users anticipated awareness of the dangers inherent in the product and
their avoidability,
 MCALLISTER 2
9

a. Because of general public knowledge of the obvious condition of

the product, or of the existence of suitable warnings or
instructions
7. The feasibility on the part of the manufacturer, of spreading loss
a. By setting the price of a product or carrying liability insurance

Differences between Camacho and Barker Risk analysis tests

Camacho recognizes a crashworthiness doctrine allows P to recover something

even if the defect exacerbated P's injuries but did not cause them.

Camacho factors place more emphasis on the user

Halliday: No cause of action for design defect unless product malfunctions

The product needs to malfunction, if your dealing with things like guns, swimming
pools, this is more D friendly

2) Once the court decides which test to apply, examine the

different rules available to P and D and consider which would
benefit each side.
Notable differences:

a) Camacho recognizes a crashworthiness doctrine which allows P to recover

something even if the defect exacerbated P's injuries but did not cause them.

b) Camacho requires consideration of whether P could reduce the danger posed by

the product by using reasonable care or by heeding warnings.

c) Halliday requires that P show that a product malfunctioned in order

to bring a design defect claim (in arguing the other side, make policy arguments
against the result or distinguish)

d) Ryobi holds that P cannot bring a design defect claim when a product was
modified (in arguing the other side, make policy arguments against the result or
distinguish)

Inadequate warning (Hood, Pittman, Vassallo, Liriano)

Connection to design defect
30

Finding a defective design/lack thereof often serves as the basis for determining
adequacy of warning

Design defect connotes the physical properties of a product, where as warning

claims involve the informational structure that accompanies the products, if
informational structure misleads, claims should be based on adequacy of the
informational structure

Threshhold issue: is a warning required at all, or are the dangers open and obvious?

--If a warning is required, is it adequate (under Hood's cost-benefit analysis, given

Pittman's focus on warnings of specific dangers/consequences, or Vassallo's state-
of-the-art test)?

--when P modified the product, does D still have a duty to warn? Under Liriano, was
the modification foreseeable? Did D have notice of specific past misuses?

Hood: To determine the adequacy of the warning, consider whether the warning
adequately indicates

1. The scope of the danger/ extent of the danger

2. Physical aspects and means of conveying are sufficient

Criteria for determining adequacy of warnings see note 1 from Hood p. 599
(Pittman)

1. The warning must adequately indicate the scope of the danger

2. The warning must reasonably communicate the extent or seriousness of the
harm that could result from misuse of the drug
3. The physical aspects of the warning must be adequate to alert a reasonably
prudent person to the danger
4. A simple directive warning may be inadequate when it fails to indicate the
consequences that might result from failure to follow it
5. Means to convey the warning must be adequate

Vassallo: State of the art standard a manufacturer will be responsible for any
defects of which the manufacturer knew or should have known given the state of the
art at the time of manufacture

A. Res Ipsa in products liability (early case, paved the way)

1. Escola v Coca Cola Bottling Co, Court in favor of P for strict liability
to D, she used Res Ipsa because she did not have evidence of D’s specific
negligence, P injured from exploding coke bottle, sued Coke bottling
company
 MCALLISTER 3
1

a. Res Ipsa- principle that occurrence of an accident implies

negligence, e.g. you think that a product should perform a certain
way and if it does not the manufacturer is negligent
b. Rationales for strict liability to manufacturers
i. Loss spreading- (like insurance) the manufacturer is in the
best position to know what went wrong and how to stop it,
they can raise the price of the product and spread the loss
to the consumers
ii. Manufacturers made the product and are thus in the best
position to inspect it
iii. Provides consumers with a means of controlling the
manufacturers behavior so as to economically optimize the
risks and benefits of the product they buy so as to maximize
it’s value
iv. Eliminates the problem of having to trace one’s way back
up the distribution chain and prove that a manufacturer
was responsible for the defect, courts can avoid the
difficulties of prescribing an event to negligence through
using a doctrine like Res Ipsa
B. Restatement §402A strict liability for products
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm hereby
caused to the ultimate user or consumer, or to his property
if,
o (a) The seller is engaged in the business of selling a
product and
o (b) It is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold
(2) The rule stated in Subsection (1) applies although
o (a) The seller has exercised all possible care in the
preparation and sale of his product, and
o (b) The user or consumer has not bought the
product from or entered into any contractual
relation with the seller
ii. Interpretation: The effect of this restatement allowed P’s
to sue manufacturers without having to prove that they
were negligent and use Res Ipsa (Escola)

C. Manufacturing Defects
32

Basic idea: The design and warnings were adequately safe, but there was a flaw in
the way that the product was made.

Common issues:  Can P show that product was the cause-in-fact of his injuries?
Under Speller, can P show that the harm at issue is the kind that usually is
attributable to a defective product? Under Speller, can P show that the harm at issue
is the kind that usually is attributable to a defective product?

1. Speller v Sears (supplement p.196), In favor of P for possible

manufacturing defect, fire in P’s home allegedly from manufacturing
defect in fridge, P sues the manufacturer of the fridge, distributor, and
Sears for manufacturing defect under strict liability,
a. Rule: Without specific proof of a defect, a defect may be inferred
when the incident at issue was a) the kind that ordinarily occurs
because of a product defect and, b) was not solely the result of
causes other than the defect
b. Application: P’s experts testified the fire likely started from the
fridge and one of D’s experts corroborated that a fire would not
have started from the fridge unless there was a defect, this creates
a triable issue of fact as to whether an alleged defect in the fridge
could have been a substantial factor leading to the injuries
D. Design Defects
1. Soule v General Motors Corp, court in favor of P using cost benefit
analysis, P got into accident and sustained severe ankle injuries, P alleges
design defect, court used barker cost/benefit test because theories to
complicated to use consumer expectations test
a. Rule: Barker Cost benefit analysis
b. Application. TC erred in not using a cost benefit analysis because
P’s theory was too complicated for a normal consumer evaluations
test because an ordinary consumer would not reasonably expect
that a vehicles frame, suspension, or interior, would be designed to
remain intact in any and all accidents
c. Which test: Consumer-expectation test (benefits D less) applies
only when the product is simple OR its performance is so
obviously unsafe that a consumer would know that the product
had not operated as intended.
2. O’brien v Muskin, In favor of P for D for design defect, P dives into a 4 ft
swimming pool and sues D for design defect
3. Camacho v Honda Motor Co, Court if favor of P for cost benefit
analysis, P sustained leg injuries in motorcycle accident because of the
absence of leg bars, mechanical engineers asserted that effective leg
protection devices were available that could have reduced or completely
 MCALLISTER 3
3

avoided P’s injuries and were being used by other manufacturers at the
time,
a. Rule: Factors to determine whether product is unreasonably
dangerous utility of a product, availability of a suitable
substitute, safety aspects of a product, ability to improve safety
without impairing utility, user’s ability to reduce danger through
diligent care, the users anticipated awareness of the dangers
inherent in the product and their avoidability because of general
public knowledge of the obvious condition of the product or of the
existence of suitable warnings or instructions, feasibility on the
manufacturers part of spreading the loss by setting the price of the
product
b. Rule: Crash worthiness doctrine allows P to recover something
if the defect exacerbated P's injuries even if it did not cause them.
c. Application: Even when a consumer-expectation test could apply
and when it would benefit would D (b/c dangers were open and
obvious), court should apply the risk-utility test, because it creates
the best incentives for manufacturers to make innovative but safe
products.
d. Midterm: Under the risk-utility test, Vivian must address a number of
factors, involving cost, feasibility, risk, and benefit. Several factors in
the fact pattern weigh in Vivian’s favor—the magnitude of the injury
involved in being ejected, consumer expectations that a child would
remain safely seated, and the feasibility of the alternative design used
by Fun Times. Camacho would be more favorable for Fly Swing. In
particular, Fly Swing can benefit from Camacho, arguing that Vivian
could have heeded the product warning or could have better supervised
Juan to ensure that he used the product properly. Nonetheless, given
the importance of an alternative product under Camacho, Vivian is
likely to prevail
e. Midterm example of how to argue around modification
defense for risk utility test: Vivian should offer policy reasons for
not applying Jones: given the foreseeability of the misuse, it would be
reasonable to analyze the design using conventional precedents like
Soule or Camacho
f. Dissent: Consumer expectations test should have been applied
because consumers know motorcycles are dangerous and P had
the choice to purchase from other manufacturers that carried
additional safety features
g. Note: Camacho adds the crash worthiness doctrine, allowing for
liability for exacerbation of injuries
h. Note
34

4. Barker v Lull, P was injured while operating a lift loader that had been
manufactured by D, P sued under strict liability alleging that loader was
designed defectively
a. Rule: barker cost benefit analysis
b. Application: Court reasoned that the consumer expectations test
or cost benefit analysis could be used to prove a design defect
c. Note: Barker: (main points are public safety and prevention of
injury)
5. Halliday v Sturm (supplement p. 202), In favor of D for P
(Halliday) purchased a gun made by D that came with free safety course,
lock box, instruction manual laden with warnings “Fire arms should
always be stored securely and unloaded away from children” among
others, P left hand gun under his mattress, decedent (3 yr old) finds gun,
inserts magazine, cocks, and shoots himself in the head, dying two days
later, P sues for design defect alleging gun should not be operable by child
and inadequate warnings
a. Rule of law: No cause of action for design defect unless product
malfunctions
b. Application: The difficulty with applying a consumer expectations
test when a product does not malfunction causes the court to lean
in favor of a risk utility test
c. Note: Consumer expectations test are difficult to apply if a product
does not malfunction
6. Difference btw Camacho and Barker Not much different
a. Camacho recognizes the crashworthiness doctrine, allowing for a
plaintiff to collect even if defect did not cause damages but
exacerbated them
b. Camacho allows the manufacturer to put more responsibility on
the user through its ability to avoid risk by exercising diligent care
factor
c. Barker is more P friendly
d. Camacho is more manufacturer friendly (D)
E. Safety instructions and warnings
1. Hood v Ryobi (adequate warnings) p.596, Court in favor of D
for having met duty to warn precautions, P bought a miter saw with
warnings in several places on both the instruction manual and saw
stating not to remove the guard during use and that serious injury could
result, P removes guard a day after buying saw and severely injures
himself, P claims to have taken notice of the warnings but believed the
guard was meant to prevent clothing or fingers from coming into contact
with blade and did not know blade could potentially fly off but D did
 MCALLISTER 3
5

a. Rule: To determine adequacy of a warning, the benefits of a more

detailed warning are weighed against the costs of requiring the
change (cost benefit analysis)
b. Application: D can’t be expected to warn of every possible
danger, D’s warnings were clear and unequoivical, 2 of 7 warned
of “serious injury”, the only other incident similar to P’s occurred
15 years ago
c. Note: Defect must have arisen from the normal or foreseeable use
of the product. Manufacturer not liable for all possible harms
caused by its product, only harms caused by intended and
foreseeable use
d. Note: having too much detail on warning can be ineffective
e. Midterm: Under Hood, the question is whether the costs of a more
detailed warning would outweigh the benefits. The voluminous
warnings and other details in the Manual may make an additional
warning counterproductive. On the other hand, a clear, more
effectively placed, and detailed warning displayed on the swing may
be necessary to make a warning effective
2. Pittman factors from notes: The warning must adequately indicate the
scope of the danger, The warning must reasonably communicate the
extent or seriousness of the harm that could result from misuse of the
drug, The physical aspects of the warning must be adequate to alert a
reasonably prudent person to the danger, A simple directive warning may
be inadequate when it fails to indicate the consequences that might result
from failure to follow it , Means to convey the warning must be adequate
a. Midterm application: Under Pittman, Vivian may fare better: Fly
Swing’s warning describes only the action that should not be taken,
but says nothing about the type or extent of injuries that could occur,
and it is not well-placed on the swing
3. Edwards v Basel Pharmaceuticals p.607, Decedent overdosed
on nicotine patches, wife (P) files wrongful death suit alleging that D
failed to adequately warn of the effects of an overdose, D alleges that the
learned intermediary doctrine applies and that by warning the physicians
fully of the potential consequences of overdosing they have fulfilled their
requirements to the FDA
a. Rule: Learned Intermediary doctrine shields drug
manufacturers from liability if they have completely warned the
physicians of drug side effects, the rationale being that the doctor
is viewed as a “learned intermediary” between the patient and the
manufacturer who assess the medical risks in light of the patients
needs, exceptions mass immunizations and when the FDA
36

mandates that a warning be given directly to consumers (not

teacher rule)
b. Application: Although D has complied with FDA mandates as
required by Learned Intermediary doctrine, a trier of fact can
make the decision whether those mandates adequately warned
4. Vassallo v Baxter Health care p.612, Court in favor of P for D’s
failure to warn of potential risks that were discernable through testing, P
(Vassallo) sued D for injuries she claimed to have received from breast
implants manufactured by D
a. Minority rule: Assumes that a manufacturer is aware of all the
risks of a product when they release it into the market regardless
of the state of the art at the time of the sale and applies strict
liability for failure to warn of these risks (hindsight analysis, used
here)
b. Majority Rule: State of the art standard a manufacturer will be
responsible for any defects of which the manufacturer knew or
should have known given the state of the art at the time of
manufacture (not used here)
c. Application (minority): The company knew the implants could
potentially leak but did not warn doctors about the risks that
could result from rupture
d. Note: Majority Follows restatement 2nd section 402A comment j
and states “the seller is required to give warning against a danger
if he has knowledge, of the…danger” (state of the art rule)
e.
F. Defenses
1. Substantial modification defense
a. General Motors v Sanchez (learned intermediary
doctrine), In favor of P for design defect but comparatively
responsible, P left his home to feed heifers, his body was found the
next morning, P was pinned to gate by his 1990 Chevy Pick up
truck, circumstantial evidence suggested that P drove truck into
corral and stopped to closed the gate, he miss shifted into what he
though was park, put was between park and reverse, shift fell into
reveres pinning him and causing his death, P sues for negligence,
products liability, and gross negligence, TC found for P but found
he was 50 percent responsible, D appeals
i. Rule: Comparative responsibility statutory system that
limits P’s recovery under products liability as if they were
comparatively negligent
 MCALLISTER 3
7

ii. Application: The court chose not to apply the comparative

negligence statute to strict liability because they claimed it
would defeat the purpose of strict liability, but did limit P’s
recovery because he was comparatively responsible, D
because of the existence of a safer alternative design was
still found 50 percent liable to P
b. Jones v Ryobi. Court in favor of D for substantial modification
defense, P’s hand was crushed in a printing press with disabled
safety mechanism, even when D provided modification tools
i. Rule. If a third party modifies a product that is safe but
rendered unsafe by the modification, manufacturer not
liable even if modification is foreseeable
ii. Midterm: Under Jones, Fly Swing will argue that Juan was
injured not by the product as it was designed at the time of its
sale but by a modification.
iii. Dissent: Its dangerous because most everyone removes
the guards and they don’t work efficiently with them,
therefore press does not perform according to industry
standards and they thus had a duty to warn of the risks
resulting from modification because it was foreseeable
iv.
c. Liriano v Hobart Corp Court found for P for inadequate
warnings despite modification defense, held grocery store not
manufacturer primarily liable, meat grinder injured 17 year old P
after the safety guard was removed by the grocery store, D
impleaded grocery store
i. Rule: A manufacturer is not liable for injuries caused by
substantial alterations to the product
ii. Application: Grocery store modified the product thus the
manufacturer could not be held liable for design defect,
iii. Application: but a manufacturer has a duty to warn
against latent dangers resulting from foreseeable uses of its
products which it knew or should have known, and to warn
of the dangers of reasonably foreseeable unintended uses
iv. Reasoning. While it is the general rule not to hold 3rd
parties liable here manufacturer purposely designed
product that could be used without safety feature and as a
result are liable,
v. Note: Modification defeats a design defect case, not a
adequacy of warning case, if a P modifies a product it
38

defeats design defect not warning, this is the difference

between this case and Jones
vi. Midterm: Vivian may also want to rely on Liriano, arguing
that Juan’s misuse was foreseeable and deserved a warning. On
the other hand, Vivian perhaps should have known about the
purpose of the restraint and the specific hazard it addressed (the
open and obvious danger exception).
d. La Salle
G. Beyond Products
1. Royer v Catholic Medical center, In favor of P for strict liability as
not applicable to service providers, P had a knee replacement surgery
where his knee was replaced with a prosthtetic that turned out to be
defective, P sues the hospital for design defect
a. Rule: Service providers are not liable under products liability suits
b. Application: Because D was in the business of providing
healthcare and the sale of the prosthesis was incidental to
providing their service, the hospital is not liable
c. Note: architects and building contractors also constitute service
providers
H. The Intersection of Tort and Contract
1. East River Steamship v Transamerica, In favor of D for products
liability not applicable when a product damages itself, P chartered ships
made with turbines from D, the turbines malfunctioned and the ships had
to be repaired resulting in economic losses to P, P sued under negligence
and strict liability theories
a. Rule: If a product injures itself then there is no tort claim
b. Application: Because tort law is designed to protect the injured
party from dangerous conditions that could harm the P or his
property when the loss is of the product itself, the loss can more
properly be covered by a bargained for exchange under contracts
remedies
c. Note: Its not fair to apply strict liability to a product that injures
itself because products liability operates under a lower standard

CHAPTER TWO: NEGLIGENCE

Negligence Elements

1. Duty

2. Breach of that duty by the D;

3. But for causation

 MCALLISTER 3
9

4. Proximate causation

5. Injury

Adams: A duty to adopt reasonable precautions for foreseeable accidents. Breach

of that duty=negligence.

Carol Towing: Negligence liability attaches if B<PL B=burden of taking additional

precautions, P=probability of injury, L=extent of the injury, The product of PL is the
cost of the accident, thus,

If Burden of taking additional precautions< Cost of accident, Negligence liability

attaches

Ramsbottom: Physical ailments excuse from liability only if actions are wholly
beyond D’s control (more P friendly)

Reasonable Man standard

Represents the average person of the community with average moral judgment

3. Criticisms: Does not take into subjective experience

Bashi: Insanity is not a defense to conduct that falls below reasonable person
standard unless D is a child

Restatement §283C: If D is ill or otherwise phyiscally disabled, standard is of

reasonable person with a like disability

Custom: (Trimarco)

Constructive notice here means that D should have known, given the
information available to him at the time.
 Utilized as evidence by the plaintiff
o Constructive or Actual Notice
o Feasibility
o Collective wisdom
 Custom used as a defense by D
o Lacks notice (no one else is doing it)
o Lack of feasibility (too expensive, or too difficult)
Statutory Focuses: (Herzog)

Purposive

 Concerned with the purpose of the statute

 E.g. what was the purpose of the statute in the Herzog case?
40

Textual

 Focus on the language of the law, does not look at purpose, it is favor of the
law that a legislature knows how to write laws and
 Lists: the language argument is that the list is intending to be exclusive,
meaning the list is meant to cover everything the legislature wanted it to
cover
 Like objects: The statute is meant to cover anything similar to what it states
is being covered

How to interpret a statute: (Tedla)

 Precedent applies
 Precedent is distinguishable
 Precedent unpersuasive

Statute evaluation test (UHR): 1) whether the P is one of the class for whose
particular benefit the statute was enacted, 2) whether recognition of a private
right of action would promote legislative purpose, 3) whether creation of such a
right would be consistent with the legislative scheme (not teacher highlight)

Whether a statute can create a duty (Perry):

A) Threshold inquiry: In determining whether a statute may be used a court for the
purpose of a duty in negligence, considers as a threshold matter: whether P is in the
class the statute intended to protect and whether the injury was the kind that the
statute was designed to prevent

B) Application of Test: If the threshold inquiry is satisfied, consider the following

factors in determining whether to use the statute: 1) whether the conduct was
already covered by a common law duty 2) whether the statutory prohibition was
clearly worded 3) whether imposition of liability would impose financial
responsibility out of proportion with D’s fault and 4) whether P’s injury resulted
directly from D’s conduct

Res Ipsa elements: (Byrne, Mcdougald, Ybarra)

 Instrumentality was under exclusive control of D

 Accident would not in ordinary course of events happen without negligence
 P did not contribute to or cause the injury

Medical Malpractice: In proving a prima facia case, P must show 1) The relevant
recognized standard of care among similarly situated phyiscians 2) A departure
from that standard

A. The Central Concept

 MCALLISTER 4
1

1. Adams v Bullock (Reasonable Care), Court in favor of D, P

walking on bridge, swung wire, made contact with trolly line, P was
shocked and burned,
a. Rule: A duty to adopt reasonable precautions for foreseeable
accidents. Breach of that duty=negligence.
b. Application: Court looked at custom, cost of precautions, and the
fact that nothing like this had ever happened, to determine that D
has to exercise ordinary care in light of ordinary risk, it would
have take unreasonable foresight to have foreseen P’s injury and
furthermore it would have been unreasonably expensive to take
the necessary precautions that would have protected D
c. Note: Focus on the reasonable precautions given the location
2. United States v Carroll Towing Co (Hand Formula), In favor
of D for P being contributorily negligent, P’s barge broke from its
moorings and sank allegedly because of D’s negligence, P’s employee in
charge of boat had been ashore for 21 hours, accident occurred during
the high traffic of war time
a. Rule: Negligence liability attaches if B<PL B=burden of taking
additional precautions, P=probability of injury, L=extent of the
injury, The product of PL is the cost of the accident
b. Application: The cost of safety measures on behalf of plaintiff (B)
was lower than the cost of the wreck (PL), thus the barge owner
(plaintiff) was negligent (because the issue was determining if P
was negligent)
c. Economics Note: The reasonable person is the efficient person,
therefore when the cost of accidents generally (PL) is less than the
costs of preventing them (B), the efficient person or profit
maximizing company will pay for the accident over taking the
proper precautions
d. Note: This formula can be applied to any negligence case
3. Bethel v New York City Transit Authority (duty of highest
care rejected), In favor of D, P injured when wheelchair accessible
seat on D’s bus collapsed beneath him, P claimed that if D had properly
inspected repairs they would have noticed defect, the issue was whether
or not a heightened standard of care should apply to common carriers
a. Main Point: Bethel offers rationales for the abolition of a
heightened standard of care and the application of a universal,
reasonable person standard.
b. Application: It would apply directly or by analogy to cases in
which heightened standards do or could apply (superior
knowledge cases, medical cases, etc.)
42

4. Wood v Groh (Notes case), in favor of P, P was accidently shot by D,

who used a gun which his father owned and kept locked in a gun cabinet,
the son used a screwdriver to open the cabinet
a. Main Point: there are some things that need to have a heightened
standard of care (e.g. fire arms, toxic chemicals, etc.)
5. Roberts v Ramsbottom (Notes case), In favor of P, D drives
shortly after having a stroke, D argues his awareness was impaired by his
stroke
a. Rule: Physical ailments excuse from liability only if actions are
wholly beyond D’s control (more P friendly) (not teacher)
b. Application: Because D maintained control albeit imperfect he is
still liable to P for damages,
c. Note: Consistent with Hammontree because there D did not have
control because of his seizure
6. Hammontree v. Jenner (intentional Tort)
7. Bashi v Wodarz, In favor of P, D while driving, suddenly gets a state of
mind where they are unaware of their actions
a. Rule: Insanity is not a defense to conduct that falls below
reasonable person standard unless D is a child
b. Restatement §283: “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 circumstances”
c. Application: Because D was not a child her conduct was not a
defense to her fainting at the wheel of the car
d. Restatement §283C: If D is ill or otherwise physically disabled,
standard is of reasonable person with a like disability
e. Restament §283B: imposes a higher standard for insanity or
mental deficiency, if some one is mentally deficient in this way,
they must conform to the conduct of the ordinary reasonable
person unless the person is a child
8. Children
a. Majority View: Standard is based on what may be expected of
children of like age, intelligence, and experience
b. Common Law: Children under the age of 7 are presumed to be
incapable of negligence, between the ages of 7 and 14 rebuttably
presumed incapable, over 14 presumed capable
c. When driving a car: A few jurisdictions make the age,
intelligence, and experience, allowance when a child is driving a
car or engaging in other “adult” activities but the majority of cases
hold children to an adult standard in such situations ( Restatement
§283A)
 MCALLISTER 4
3

d. Mastland: Children will be held to the standard of a child with like

capacities
9. Superior Attributes
a. Those with superior attribute are held the a heightened standard
of people with superior attributes
i. E.g. A weapons expert who accidently discharges his fire
arm and hurts some one is held to the standard of the
weapons expert
ii. Note: Both this rule and the rule from Bashi point to higher
safety standards enforced in tort law
B. The role of Custom
1. Trimarco v Klein (proof of custom), In favor of P (Trimarco) for
custom as a tool to aid in determination of D’s duty of care, P fell through
a glass enclosure on bathtub and was injured, although shatter proof
glass had been used standardly in apartments since the 1950’s, D had not
changed previously installed glass, D claims no duty, P obtained jury
verdict, D appeals
2. Rule: Custom utilized by P constructive or actual notice, feasibility,
collective wisdom
3. Rule: Custom utilized by D lacks notice (no one else is doing it), lacks
feasibility (too expensive, or too difficult)
4. Application: Evidence of custom or practice is admissible since it tends
to show the collective wisdom of a larger group, the custom is, however,
merely evidence of reasonable care and is not conclusive
C. The role of statutes
1. Martin v Herzog (violation of safety legislation), Court in
favor of D for statute violation qualifying as contributory negligence in
itself, P (decedent) was driving a wagon in the dark that had no lights in
violation of a statute, P was struck and killed by D who was driving on the
wrong side of the road
a. Rule: Statutory focuses Purposive: concerned with the purpose
of the statute, e.g. what would the purpose of the statute in this
case be?
b. Rule: Statutory focuses Textual: focuses on the language of the
law, does not look at purpose, it is understood that the legislatures
knows how to write laws. When a statute lists something, the list
is meant to be exclusive, meaning the list covers everything the
legislature wanted it to. Statutes also cover like objects, or
anything similar to what they state is being covered
c. Majority rule: violation of a statute is generally negligence per se,
there may be an exception when under the circumstances, actions
that violate a statute are the most reasonable thing to do (see
Tedla)
44

d. Application: unexcused omission of the statutorily required

lighting is negligence per se, to omit safe guards prescribed by the
benefit of others is to fall short of the duty of diligence owed to
society
2. Restatement §286 (p.78): The court may adopt the requirements of
a legislative enactment or an administrative regulation whose purpose is
found to be exclusively or in part a) to protect a class of persons which
includes the one whose interest is being invaded and b) to protect the
particular interest which is being invaded and c) to protect that interest
against the kind of harm which has resulted and d) to protect that
interest against the particular hazard from which harm results
i. Interpretation: Goal is to coincide with what the
legislation would have wanted when they created
the statute
3. Tedla v Ellman (exception to majority rule), In favor of P for
violation of statute, P and brother were struck by a car at night while
walking on the wrong side of the road, brother was killed, P showed
traffic was much heavier on the side they were supposed to walk on, P
sues for negligence, D moves for dismissal based on P’s statutory
violation
a. Rule: How to interpret a statute 1) precedent applies, 2)
precedent is distinguishable, 3) precedent is unpersuasive
b. Application: purposive distinguishing interpretation The
legislature would not have intended for obedience to a rule that
would subject pedestrians to greater danger,
c. Note: We are distinguishing because precedent does not apply
d. Note: Alternative to Herzog and Tedla
4. UHR v East Greenbush Central School District (p. 168), In
favor of D for statute not creating a right of action, P’s sued D for not
abiding by a state statute stating that” medical inspector or principals and
teachers in charge of schools in this state shall…examine…all…pupils
between eight and sixteen years of age for scoliosis, at least once each
school year”, Section two of the statute says that school districts that do
this will not suffer any liability, P’s child had to get surgery
a. Rule: Sheehy Statute evaluation test to determine whether
there is a private right of action: 1) whether the P is one of the
class for whose particular benefit the statute was enacted, 2)
whether recognition of a private right of action would promote
legislative purpose, 3) whether creation of such a right would be
consistent with the legislative scheme (not teacher highlight)
b. Application: D’s obligation to test is clear from the statute, the
Sheehy test determines if liability can be imposed 1) P is a
member of the class the statute was designed to protect, 2)
 MCALLISTER 4
5

Because fear of liability would encourage D’s to test for scoliosis a

private right of action would encourage the statutes purpose, thus
this prong is satisfied, 3) Because the statute charged the
commissioner of education who has the power to hold back
funding to the school with the duty to implement this law it would
be inconsistent with the statutory scheme to create a private right
of action
5. Perry v S.N, In favor of D for statute not creating a new common law
duty where there was not one before, the Kellers operated a day care
center where Mr. Keller abused the children, D (Perry) was aware of this
but did not report, the statute stated “A person having cause to believe
that a child's physical or mental health or welfare has been adversely
affected by abuse or neglect by any person shall immediately make a
report as provided by this subchapter”
a. Rule: Perry: A) Threshold inquiry: In determining whether a
statute may be used in court for the purpose of a duty in
negligence, considers as a threshold matter: whether P is in the
class the statute intended to protect and whether the injury was
the kind that the statute was designed to prevent B) The Test: If
the threshold inquiry is satisfied, consider the following factors in
determining whether to use the statute: 1) whether the conduct
was already covered by a common law duty 2) whether the
statutory prohibition was clearly worded 3) whether imposition of
liability would impose financial responsibility out of proportion
with D’s fault and 4) whether P’s injury resulted directly from D’s
conduct
b. Application: Threshold issue P is in the class the statute was
designed to protect as their child went to the day care, 1) there
was not a common law duty and imposing this statute would
create a new statutory duty separate from common law
negligence, 2) The statute was not clearly worded in that it did not
clearly define prohibited conduct (e.g. discovering abuse through
other parties), 3) the punishment for being an abuser is much
more severe than the punishment for failing to report it and by
creating a duty here there is a risk of liability out of proportion
with the act, 4) the connection between the D’s conduct and P’s
injury is too far removed, plaintiffoffender 3rd party agency
D. Proof of Negligence
1. Res Ipsa Loquitur (conjunctive rule)
a. Rule elements 1) instrumentality was under exclusive control
of D, 2) Accident would not in ordinary course of events happen
without negligence, 3) P did not contribute to or cause the injury
b. Rationales: Administrative efficiency Saves money and
litigation costs, Fairness arises only when negligence is obvious
46

but direct evidence is lacking, Law and Economics provides D

with incentive not to hold on to evidence
c. General: Translation”The thing speaks for itself”, used in
situations where it is 1) highly probable that the injury would not
have occurred in the absence of some one’s negligence, 2) the
indicated source of negligence is within the scope of a duty owed
by D to P, and 3) neither P or any third party appears to have been
a contributor
d. Burden on D: D must explain away negligence, does not apply if
negligence by D is no more likely than any other explanation
e. Restatement §328D: Res Ipsa application
i. Events that don’t generally qualify  tire blows out, man
falls down stairs,
ii. Events that can qualify Objects falling from D’s
premises, the fall of an elevator, the escape of water or gas
from mains or of electricity from wires or appliances, the
derailment of trains or the explosion of boilers, here the
conclusion is at least permissible that such things do not
usually happen UNLESS SOME ONE HAS BEEN NEGLIGENT
f. Defenses: 1) offer alternate explanations for the injury to P, 2)
show that such injuries happen frequently without negligence of
anyone, 3) show D did not have control of the situation or that
another person had control
2. Byrne v Boadle (early case), Court in favor of P for Res Ipsa, barrel
rolled out of D’s window and struck/injured P, no other evidence
a. Rule: Res ipsa Loquitur elements supra
b. Application: Falling barrel was under D’s control, the barrel
would not likely have fallen out the window without some kind of
negligence, and P in no way caused the injury.
3. McDougald v Perry (recent case), In favor of P for Res Ipsa, P was
driving behind D’s tractor-trailer, tire came out of cradle, struck P’s
windshield, P sued for injuries sustained during accident,
a. Rule: 1) instrumentality was under exclusive control of D, 2)
Accident would not in ordinary course of events happen without
negligence, 3) P did not contribute to or cause the injury
b. Rationale Application: Administrative Efficiency without res
ipsa here we would have had a lot of conflicting expert testimony
regarding how tires could come off, Law and economics without
Res Ipsa D might just decide to sit on evidence
c. Application: Instrumentality it was D’s truck, we wouldn’t
normally think that tires would just randomly fly off moving
vehicles, this was in no way P’s fault
 MCALLISTER 4
7

4. Ybarra v Spangard (Stray from res ipsa), In favor of P for Res

Ipsa, P went to hospital for operation that was performed by D’s, P
received injury during the operation not related to the actual operation
itself, the injury worsened to paralysis and atrophy, D’s contends that P
must show by what instrumentality he was injured and who controlled
it
a. Rule: Modified Res Ipsa
b. Application: There was no way P could have shown
instrumentality because he was anesthesiatized during the
operation (fairness rationale), you would not normally expect to
experience atrophy and paralysis in your arm after getting an
appendectomy, P was put under so he could not have contributed
to injury
c. Teachers Note: Ybarra holds that a departure from the black
letter rule is justified in order to promote the policy underlying the
res ipsa rule, these would be competing approaches to the same
issue on an exam
E. The Special Case of Medical Malpractice
1. Sheeley v Memorial Hospital (national standard adopted),
In favor of P for malpractice, P had a baby at D’s hospital, at time P was
under care of 2nd year family practice resident, D performed episiotomy to
ease delivery, P developed complications where D sowed up incision, TC
would not allow P’s expert witness testimony because he was not in the
same field as D
a. Rule: Medical Malpractice: In proving a prima facia case, P must
show 1) The relevant recognized standard of care among similarly
situated phyiscians 2) A departure from that standard
b. Similar locality rule: legitimized a low standard of care in smaller
communities
c. Note: Early cases use to follow the similar locality rule the TC
upheld but This case led abandoned that rule in favor of a national
standard where Dr’s are held to the standard of that exercised by
other members in his profession under similar circumstances
d. Application: P’s expert witness testified to the presence of a
standard of care regarding episiotomies and D’s lack of adherence
to that standard
2. Robbins v Footer p110 (Notes case),
a. Rule: Dr’s have their own standard of care and whether the care
given in a situation conformed to that standard is the issue in
these cases
b. Rule: P has the burden of proving the relevant standard of care
and that a Dr departed from that standard when treating P
48

3. States v Lourdes Hospital (Medical Res Ipsa), In favor of P for

Res Ipsa, P successfully underwent surgery for removal of ovarian cist, P
developed complications in right arm, P sued D for negligently
positioning her harm during surgery, P did not have evidence of direct
proof but submitted expert medical opinion that her injuries would not
have happened in the absence of negligence
a. Rule: Res Ipsa1) instrumentality was under exclusive control of
D, 2) Accident would not in ordinary course of events happen
without negligence, 3) P did not contribute to or cause the injury
b. Note: The issue is that P must rely on expert testimony here to
prove that this would not have happened in the absence of
negligence, generally this should be based on every day
experience, and that Res Ipsa is supposed to only apply to matters
of general knowledge
c. Note: This case allows for the use of expert testimony in Res Ipsa
to bridge the gap between the experts specialized knowledge and
its own common knowledge
i. Rationale: Our society has become more sophisticated and
specialized, there are many that can aid and educate a jury
but that does not negate the jury’s ultimate responsibility
to draw conclusions, it allows for the use of Res Ipsa
making things more run more efficiently in the court, it is
only fair because P was unconscious
d. Application: D performed the operation and was thus in control
of instrumentality, expert testimony showed that this would not
have happened without negligence, P was unconscious so could
not have contributed to injury

CHAPTER THREE:THE DUTY REQUIREMENT: PHYISCAL INJURIES

(Harper) A. NO duty to act unless there is a special relationship. Restatement 314 A:
examples; 1) a public acomodation (business that is generally open to the public), 2)
Someone who is in D’s custody is a vulnerable or dependent person

Farwell p.140: There is a duty to use reasonable care if and only if: 1) D takes
control of the situation or 2) the D + victim are participants in a joint venture and
there is no danger to the D

D. Restatement 2nd 324: Duty if a party takes charge of care and either 1) fails to
use reasonable care or 2) leaves P in worse position even if you used reasonable
care

More P friendly, discussed with Farwell

Reliance Rule: if you voluntarily act, you can be liable if a) you increase the risk of
harm or b) the P relies on your promise,
 MCALLISTER 4
9

Randi W: There is a general duty to prevent injury to others from one’s own
conduct. In considering whether duty applies to 3rd persons (girl who was hurt, the
first person would be the other school district) consider 1) forseeability (of the
injury), 2) moral blame (of D’s), 3) availability of alternative courses of conduct
(what else they could have done to avoid risk), 4) public policy concerns (We don’t
want people mollesting students at school)

NO duty: public policy,

Strauss: In deciding whether a duty should be imposed, courts must limit the legal
consequences of wrongs to a controllable basis for the duty

Carter: (duties of landowner depending on status of the entrant)

1) If a trespasser, no duty
2) if a licensee, duty to prevent dangers to known D
3) If an invitee, known dangers + those that would be revealed by inspection

How is status determined?

1) A trespasser does not have permission to be on property

2) Licensee’s are invited onto property but do not materially benefit the
landowner
3) Invitees if
o 1 premises are open to the public or
o 2 pay material consideration for entry

Trespasser: Land owners are not liable to trespassers unless they have been
generally tolerated, in which cases courts have tended to treat trespassers as
licensees, requiring land owners to warn them of risky they know about

Licensee: Have consent from the landowner to enter, landowner has a duty to
notify licensee of or make safe, known artificial conditions or activities that are
harmful, no duty to inspect (e.g. social guests)

Invitee: Enter property with consent and with some purpose connected with the
use of the premises, owner has a duty to inspect, e.g. businesses

Restatement §339 Child Trespassers p.200: A possessor of land is subject to

liability for physical harm to children trespassing thereon caused by an artificial
condition upon the land IF a) owners knows children likely to trespass b) condition
presents unreasonable risk to children c) children don’t realize the risk of meddling
with the condition d) the burden of eliminating the danger of the condition is slight
compared with the risk to children e) possessor fails to exercise reasonable care
50

Heins, alternative to licensee classification system, (factor test): Land owners

owe reasonable care to any entrant. To determine whether reasonable care was
exercised, consider forseeability of the harm, purpose of the entrance (basically old
categories, why are u there), time/manner/circumstances of entry, use to which
premises are put, reasonableness of inspection, ease of repair + inspection (how
likely or easy it would have been for land owner to prevent the harm), burden of
precaution on D (cost on D to take the precautions)

Posecai: In determining whether D owes P a duty to protect against a criminal act

by 3rd parties 1) Majority: Balance cost of precautions against gravity + probability
of harm, 2) Concurrence: apply totality of circumstances test (which also takes into
account location and condition)

Broadbent: In determining whether the parent has been negligent vis a vis her
child, consider whether parent acted as would a reasonable parent under the
circumstances.

Randi W Alternatives:

a. Hopkins Test: Nature of relationship, nature of risk, opportunity

and ability to exercise care to exercise care, public interest
 Note: Nature of relationship is different, Randi W doesn’t
care about this but other jurisdictions do,
b. Largosa: forseeability of injury, probability of injury, magnitude of
burden, consequences of placing burden on D
 Note: This is more worried about how expensive and
impractical it would be to protect third parties (some of
this is covered under forseeability prong of Randy)
c. Mcnulty: Limits to warning patients family, meaning the acts
B. Introduction
1. Harper v Herman, (superior knowledge) In favor of D for no
duty to act, P was a 20 year old guest on D’s boat and was seriously
injured diving into shallow water, D was an experienced boater who
spent hundreds of hours on lake where incident occurred
a. Rule: (Harper) A. NO duty to act unless there is a special
relationship. Restatement 314 A: examples; 1) a public
accomodation (business that is generally open to the public), 2)
Someone who is in D’s custody custody is a vulnerable or
dependent person
b. Application: P was not vulnerable and had the ability to protect
himself, an affirmative duty to act arises only when there is a
special relationship between parties
c. Special relationships: found only on the part of common carriers,
innkeepers, possessors of land who hold land open to the public,
 MCALLISTER 5
1

and persons who have custody of another person under

circumstances in which that other person is deprived of normal
opportunities to protect himself
d. Restatement §321 non negligent creation of risk: One who has
done an act and “subsequently realizes or should realize that it has
created an unreasonable risk of causing physical harm to another,”
is under a duty to exercise due care to prevent the risk from
occurring even though at the time the actor had no reason to
believe his act would create such a risk
 Interpretation: Standard is changing from a duty not to
help to a duty to help
 E.g. Menu v Minor: P crashed into car left in street by guy,
guy called cab company (D) and left, P sued cab company
saying they should have stayed to warn, No duty to cab
company because they did not create risk
e. Restatement §322 non negligent injury: “If the actor knows or
has reason to know that by his conduct whether tortuous or
innocent, he has caused such bodily harm to another as to make
him helpless and in danger of further harm, the actor is under a
duty to exercise reasonable care to prevent further harm”
 Interpretation: You have a duty to warn, even if creation
of injury was non negligent
 E.g. Maldonado v Southern: P fell under car of freight
train, D’s employees knew but did nothing to help, D’s had a
duty to help according to §322

2. Farwell v Keaton (social venture), In favor of P/decedent for

duty to act, D and decedent were drinking and when they saw a group of
girls began to follow them, girls complained to guys, guys severely beat
decedent but D escaped, D drove decedent around for several hours then
left him in car at home, parents (P) sued for duty to act
a. Rule: Farwell p.140: There is a duty to use reasonable care if and
only if: 1) D takes control of the situation 2) the D + victim are
participants in a joint venture and there is no danger to the D
 Note: More D friendly because it stops at reasonable care
and specifies joint venture
b. Application: D took control of the situation when he drove D
around for several hours, applied ice pack to head, and left
decedent in car alone, Also D and decedent were companions in a
social venture (hitting on girls), thus a special relationship arose
between them
c. Dissent: moral obligation should not be elevated to legal duty, no
special relationship that would give rise to a duty to help, we look
52

to community norms to determine duty, e.g. wife/husband,

dr./patient,
d. Limits to Joint venture: only applies to cases where the parties
are mutually dependent or vulnerable, or in situations where there
is an establishment open to the public
3. Restatement Second §324
a. Teacher Rule: Duty if P takes charge of care and either 1) fails to
use reasonable care or 2) leaves P in worse position even if you
used reasonable care
b. Rule: Section 324 provides that one who, under no duty to do so,
takes charge of another who is helpless is subject to liability
caused by “(a) the failure of the actor to exercise reasonable care
to secure the safety of the other while within the actor’s charge or
(b) the actors discontinuing his aid or protection, if by doing so he
leaves the other in a worse position than when the actor took
charge of him
c. Note: More P friendly because it does not just stop at reasonable
care but goes on to specify leaving P in a worse position and does
not include the joint venture element
4. Reliance Rule
a. Rule: if you voluntarily act, you can be liable if a) you increase the
risk of harm or b) the P relies on your promise,
b. E.g. Morgan v County of Yuba: P’s decedent expressed fear that if
the sheriff were to release a man that he would come after her, D
not under a duty to warn promised they would warn decedent
before release, they failed to do so and man killed her, court held
liability should exist if P could establish decedent relied on
promise
c. E.g. Mixon v Dobbs: P’s wife was pregnant, manager (D) where p
worked promised to notify P if wife called, wife called, manager
received message and failed to notify P, wife delivered baby “all
alone, experiencing excruciating pain”, court held D had a duty to
exercise due care in performing promise
5. Randi W v Muroc School District (Negligent
misrepresentation), In favor of P for duty to act, P (Randi) alleged
that D’s had provided positive letters of recommendation for a
teacher/molester despite knowing his behavior, P’s school relied on
letters and hired molester who then molested P,
a. Rule: (Randi W) E. 1) There is a general duty to prevent injury to
others from one’s own conduct. In considering whether duty
applies to 3rd persons (girl who was hurt, the first person would be
the other school district) consider 1) forseeability (of the injury),
2) moral blame (of D’s), 3) availability of alternative courses of
conduct (what else they could have done to avoid risk), 4) public
 MCALLISTER 5
3

policy concerns (We don’t want people molesting students at

school)
b. Application: 1) it was foreseeable that molester would continue
to molest, 2) D’s letters were misleading and gave the impression
that molester was not dangerous, 3) D could have sent a letter just
confirming employment 4) people may not have wanted to write
reference letters anymore because they could be held liable
c. Restatement §311: (foreseeability) provides liability where P
suffers physical harm as the result of a misstatement that
threatened physical danger to others
d. Act v Omission: It is arguably worse here because D acted by
giving good representations of molestor as opposed to just
omitting the truth
e. Note: This could apply in cases of sexual harassment as well
6. Randi W alternatives, (not as important)
a. Hawkins Test: Nature of relationship, nature of risk, opportunity
and ability to exercise care to exercise care, public interest
 Facts: Woman was incorrectly told she was negative for
Hep C by a doctor, she later gave it to the man she was
married to (P),
o Holding: Dr. did not have a duty to husband because
we can’t expect doctors to warn
 Note: Nature of relationship is different, Randi W doesn’t
care about this but other jurisdictions do,
b. Largosa: forseeability of injury, probability of injury, magnitude of
burden, consequences of placing burden on D
 Note: This is more worried about how expensive and
impractical it would be to protect third parties (some of
this is covered under forseeability prong of Randy)
c. Mcnulty: Limits to warning patients family, meaning the acts
d.
7. Tarasoff v Regents of university of Cali, In favor of P for duty to
warn, P’s are parents of a V that was murdered by D’s client, murderer
confided in D his intent to kill V two months before it happened
a. Rule: There is a duty to warn on the part of psychiatrists,
psychologists to protect third persons from violence committed by
patients
b. Application: Although therapists are not often accurate in
predicting whether patients will be violent, once they become
aware of potential they have a duty to act although this could
potentially damage the relationship with clients when weighed
against the loss of life it is an acceptable cost
c. Note: Liability attaches to D only if there is a special relationship
between himself and the murderer
54

d. Note: Duty generally only applies to threats of violence

C. Policy Basis for Invoking No Duty
There are some cases in which D’s negligence played a role in P’s injury, but for
policy reasons, such as minimizing excessive suits, courts determine no duty exists

1. Strauss v Belle Realty Co (administrative efficiency), In favor

of D for no duty due to policy concerns, During a blackout P’s apartment
building lost power, D supplied power to P’s apartment as well as
common areas in building, P fell in a dark stair way and sued D (Bell
reality, and power company),
a. Rule: In deciding whether a duty should be imposed, courts must
limit the legal consequences of wrongs to a controllable basis for
the duty
b. Application: The blackout was system wide and had an impact on
millions of people, while the injury to P may have been
foreseeable, he was not a member of a narrow class, there are
millions in the same group, thus to allow recovery would extend
D’s liability to millions of people
c. Note: Holding D liable would create an instance of catastrophic
liability where it must be evaluated whether it would be good for
society to have a utility go out of business
2. Reynolds v Hicks (social host liability) p.183, D’s were
married and several hundred people attended the wedding including D’s
underage nephew Steven, Steven got drunk and was involved in an
automobile accident with P, P was seriously injured, P sues alleging D’s
were negligent in serving alcoholic beverages to Steven
a. Decision: Social hosts are ill equipped to handle the
responsibilities of guests’ alcohol consumption, unlike commercial
vendors, social hosts have no profit motive and vendors are better
organized to control customers and have a financial motive to do
so
b. Public Policy Note: Most adults are social hosts at one point or
another and are generally not well equipped to handle intoxicated
guests, thus catastrophic liability could result
D. Duties of Land Owners and Occupiers

1. Carter v Kinney (licensee/invitee distinction), In favor of D

for no duty to act because P was a licensee, D’s hosted bible study group
had their home as other church members had done, and the night before
D had shoveled his driveway but was unaware that ice had formed over
night, P slipped and fell and broke his leg
a. Rule: 2) if a licensee, duty to prevent dangers to known D, 2)
Licensee’s are invited onto property but do not materially benefit
the land
 MCALLISTER 5
5

b. Restatement §333: “Except as stated in §334-339, a possessor of

land is not liable to trespassers for physical harm caused by his
failure to exercise reasonable care a) to put the land in a condition
reasonably safe for their reception or b) to carry his activities so as
not to endanger them”
 There is a Duty to trespassers 1) not to intentionally harm
them for the purpose of hurting them 2) If there is a
constant intrusion to a limited area that you know about
then you have a duty to warn or take reasonable care to
make sure that does not happen
c. Application: All visitors who enter another’s premises with
permission are licensee’s unless a possessor has an interest in any
visits such that the visitor has reason to believe the premises have
been made safe for their sake
d. Note: A possessor of land owes a licensee a duty to make him safe
only from those dangers of which he is aware
e. Note: a possessor of land owes invitees a duty to exercise
reasonable care to protect invitees against dangers of which he is
aware and those that an inspection would reveal
f. Note: Social guests are always licensees
g. Open and Obvious dangers: D’s do not have to notify of dangers
that are open and obvious because they would be obvious to the P,
however if they were not, then they would have to notify, provided
they knew about them
h. Child Trespassers Rule: There is liability for physical harm to
children if there is an artificial condition on the land and a) the
place is one where the owner knows or should know children are
likely to go; b) the landowner knows or should know that the
condition will pose an unreasonable risk of death or serious bodily
injury to children; c) the children because of their youth do not
discover the condition or realize involved in intermeddling with it;
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 the children; and e) the possessor fails to exercise
reasonable care to eliminate the risk
2. Heins v Webster County (rejection of common law
categories), In favor of P for abolishing licensee classification system
in favor of a duty of reasonable care, after snow fall, D claims that P and
family were visiting daughter Julie at local hospital, P claims that he was
also looking into plans to play Santa at the hospital Christmas party, when
P was leaving he fell on a wet patch of ice injuring his hip, P sued claiming
D failed to properly inspect entrance, failed to warn P of dangerous
condition, allowed ice to accumulate, and failed to remove ice and snow,
a. Rule: Landowners owe reasonable care to any entrant. To
determine whether reasonable care was exercised, consider
56

forseeability of the harm, purpose of the entrance (basically old

categories, why are u there), time/manner/circumstances of entry,
use to which premises are put, reasonableness of inspection, ease
of repair + inspection (how likely or easy it would have been for
land owner to prevent the harm), burden of precaution on D (cost
on D to take the precautions)
 Note: This rule places the focus on the forseeability of the
injury as opposed to the status of the person who enters
the property
b. Application:
c. Note: State abolished categories because they believed that an
entrants status should not determine the duty owed to them
 E.g. P was not able to recover under old system here
because he would have been a licensee, if he had been a
patient, he would have been able to recover
3. Posecai v Wal Mart stores, Inc (balancing test adopted)
(p.195), P was shopping at a Sam’s Club (D) and upon returning to her
car was robbed at gun point and lost 19k worth of jewelry, P retreated to
store, security guard in the store could not see out side, P’s expert
testified robbery could have been prevented in security guards patrolled
lot, during the six years prior to the incident there were three robberies
on D’s premises, P contends D was negligent in failing to provide
adequate security,
a. Rule: In determining whether D owes P a duty to protect against a
criminal act by 3rd parties 1) Majority: Balance cost of precautions
against gravity + forseeability of harm, 2) Concurrence: apply
totality of circumstances test (which also takes into account
location and condition in addition to gravity and forseeability of
harm)
b. Majority Application: Because there had only been three
predatory offenses in the past 6 months where know one was
harmed the gravity and forseeability of harm were slight
compared to the cost of having a security guard patrol the area
 Note: The most important factor here was that existence,
frequency, and similarity of prior incidents of crime on the
premises, but the location, nature, and condition of the
property should also be taken into account
o Concurrence Application Totality of the circumstances test:
(most common),Takes into account the nature, condition, and location
of the land, as well as any other relevant factual circumstances
including property crimes or minor crimes that may be precursors to
more violent crimes
 This test would produce the same result as the balancing
test used here
 MCALLISTER 5
7

 Note: More P friendly, but often vague and consequently

creates uneven results that often result in too much liability
to D
4. Kline v 1500 Massachusetts (supplement p. 237), P was robbed
and injured in the hallway of her apartment building, previous incidents
of this nature had recently occurred in the building, the crime in the area
had been growing steadily as the precautions the land lord had taken had
decreased
a. Rule: Duty of reasonable care (protection) in common areas of
apartment building (not teacher)
b. Application: The landlord has a duty of reasonable care to keep
the common areas of his apartment building safe as he is in the
best position to do so, because the crime had been increasing and
there had been similar incidents in the building, it was foreseeable
that P could potentially be injured, thus D is liable
c. Note: Landlord is in the best position to guard against intruders,
take protective measures (even better position than police),
E. Intrafamily Duties
1. Broadbent v Broadbent (parental Immunity abolished)
p.219, D (mom) left 2 yr old by the pool to answer phone, when she
noticed she could not see baby, ran out to discover him at the bottom of
the pool, baby was revived but suffered severe brain damage, father (P)
sued on baby’s behalf alleging negligence, issue was whether or not the
parental immunity doctrine should apply
a. Rule: In determining whether the parent has been negligent vis a
vis her child, consider whether parent acted as would a reasonable
parent under the circumstances.
b. Application: Remanded for jury to decide reasonable duty
c. Note: Greatest justification to court for parental immunity
doctrine was that allowing parents to sue children would
undermine parental authority
d. Note Concurrence: Conduct must be “Palpably unreasonable” to
make parents liable, (more D friendly)
e. Midterm: Juan-Finally, Juan may have a negligence claim against
Vivian under Broadbent. Vivian will try to claim some parental
immunity, while Juan will prefer Broadbent’s “reasonable parent”
standard. Much will depend, if Broadbent applies, on whether Vivian
acted reasonably in leaving Juan alone
2. Lundman v McKown, p228, (notes case) (Modification of duty by
religious belief) Mother and stepfather were Christian Scientists, boy
died because he failed to receive medical attention, boys condition was
easily treatable up until 2 hours before his death, he was sick for four
days, father sues for wrongful death
58

a. Rule: Mother’s duty was clear: “A parents religious beliefs must

yield when—judged by acceptable medical practice”
 Note: Modified approach, more protective than the
reasonable person standard

CHAPTER FOUR: THE DUTY REQUIREMENT: NON

PHYISCAL HARM
Tests for bystander recovery:

Portee: In order to show negligent infliction of emotional distress must show : a)

marital or familial relationship between P and V, b) incident resulted in V’s death or
serious bodily injury, c) observation of the death or injury at the scene of the
accident d) severe emotional distress

Dillon: Consider a) proximity to scene, b) direct sensory or contemporaneous

observation, c) Closeness of relationship

Bovsun: P must be: a) in zone of danger, b) a member of V’s family, c) suffering later
from severe verifiable distress

F. Emotional Harm
1. Falzone v Busch (bodily injury resulting from fear), In favor
of P for emotional harm resulting from fear for her safety, P’s husband
was hit by D’s car and P was almost hit, P became ill and required medical
care,
a. Rule: Physical harm is not required (Not teacher)
b. Note: Medical community has shown that emotional injury can
cause physical harm
c. Note: Other states have not experienced a flood of litigation from
broadening the basis for recovery
2. Gammon v Osteopathic Hospital (severe emotional
distress), In favor of P for emotional harm, P’s father died in D’s
hospital, when P opened package of what he thought were his father’s
personal affects he found a bloodied leg, P had nightmares, his
personality was affected, and his relationship with his family
deteriorated, P sought no medical or psychiatric attention and offered no
medical evidence at trial,
a. Rule: Extends liability to injuries to ones emotional well being
(not teacher)
b. Note: Courts have realized that the exceptional vulnerability of the
family of recent decedents makes it highly probable that emotional
distress would result from any mishandling of the body, D’s should
 MCALLISTER 5
9

have easily foreseen that their actions could result in emotional

distress to P
3. Portee v Jaffee (Test for Bystander Recovery), In favor of P for
emotional harm despite that D’s conduct did not harm P directly but it
was foreseeable, P’s son was trapped in an elevator shaft and dragged to
the third floor, P was forced to watch a four hour rescue attempt where
his son eventually died, after death P became severely depressed,
attempted suicide, and required extensive psychotherapy, P sued D
(Jaffee, building owner) and the companies involved in designing and
maintaining the elevator,
a. Rule: In order to show negligent infliction of emotional distress
must show: a) marital or familial relationship between P and V, b)
incident resulted in V’s death or serious bodily injury, c)
observation of the death or injury at the scene of the accident d)
severe emotional distress
 Note: This is an adaption from the Dillon Rule except it
adds one factor and does not require direct observation
b. Dillon rule: Consider a) proximity to scene, b) direct sensory or
contemporaneous observation, c) Closeness of relationship
c. Difference between Dillon and Portee: Portee more closely
clarifies that you have to be right at the scene of the accident while
in Dillon you just have to be near (c to b), Portee is also more
explicit in the type of injury you observe (compare b to b)
 Note: Portee is more D friendly
4. Zone of Danger (notes)
a. Bovsun rule: P must be: a) in zone of danger, b) a member of V’s
family, c) suffering later from severe verifiable distress
b. Difference from Portee and Dillon: Even more narrow, the
emotional distress here must be verifiable, you have to be so close
that whatever it was could have killed you too, very D friendly
5. Johnson v Jamaica Hospital, P (Johnson) child was taken from the
hospital and recovered a week later, P’s brought suit for negligent
infliction of emotional distress resulting from emotional pain suffered
while the child was kidnapped
a. Rule: No duty of a hospital to third parties for emotional distress
suffered as a result of their negligence (not teacher)
b. Application: The parents were not within the zone of the danger
(Bovsun) so they did not actually see the baby get kidnapped, the
child was still alive and returned, emotional injuries do not create
a duty, and allowing P’s to recover would be to invite “open ended
liability for indirect emotional injury suffered by families in every
instance in which the very young, very elderly, or incapacitated
experience negligent care or treatment”
G. Negligent Harm
60

1. 532 Madison avenue gourmet foods v Finlandia Center

(personal injury or property damage required), In favor of D
for liability not extending to P’s whose negligence claims were based
solely on economic loss, a section of wall from a 39 story office building in
a busy commercial location, fifteen blocks on Madison Avenue and
adjacent streets were closed for two weeks
a. Rule: No liability for economic harm unless within D’s scope of
care (not teacher)
b. Application: Similar to Strauss where liability was restricted to
direct customers, here, liability is restricted to those on adjoining
properties, not the entire neighborhood
H. Wrongful Birth and Wrongful Life
1. Emerson v Magendantz, In favor of P for limited recovery, P went to
D to get tubes tied, D later became pregnant and gave birth to a baby, P’s
sued D alleging babies birth was proximately caused by D’s negligence
a. Rule: 1) Limited recovery recovery for medical costs, lost
wages, and some time emotional distress, loss of consortium, and
medical expenses for prenatal care, delivery, and postnatal care 2)
recovery for medical costs plus the costs of child rearing balanced
against the economic or emotional benefits derived by the parents
having the child; 3) full recovery without balancing
b. Application: The court here opted for the limited recovery rule
because according to the court P could not have suffered
emotional distress after delivering a healthy child, public policy
precludes the use of a blancing option because it is difficult to
measure the damage that having an unwanted child can do
c. Note: The situation would have been different here had the child
been born mentally handicapped, here it would be within the
realm of recovery for D to pay all of the costs associated with
raising the child (full recovery)
d. Wrongful life Note: Not generally recognized because courts can’t
measure the value of non existence

CHAPTER FIVE: CAUSATION

But for Rule: If the injury to P would not have happened “but for” the act or
omission of the D, such conduct is the cause in fact of the injury

Cause in Fact Tests

Stubbs: If there is a reasonable certainty that D’s actions caused P’s injury then
there is causation

Zuchowicz 1) Zuchowicz + restatement (second): D’s act must be a “substantial

factor”
 MCALLISTER 6
1

Albert: You have to show to a reasonable degree of medical probability that the
alleged negligence caused you to suffer the harm (p. 360)

Hicks: If there was any substantial possibility of survival and D destroyed it, he is
answerable, if P had a chance of getting better and D was negligent, then D is liable
(p.367 note 6)

Falcon: Eliminates the loss of chance analysis basis for recovery, pro D, D did not
cause injury so he doesn’t have to pay

Hymowitz: (Multiple D’s) In DES cases, attribute liability according to shares of

national market

Proximate Cause tests

1) Polemis: D is responsible, for all consequences of actions whether or not they are
foreseeable

2) Wagon Mound: If D breaches a duty + there is a cause in fact, D is responsible if

P’s injuries were reasonably foreseeable

3) Third restatement: not responsible only for physical harms that result from the
risks that made D’s conduct tortuous,

4) Restatement 2nd on Superseding Cause (Doe): A negligent D is liable if ? the

risk of harm and conduct was a substantial factor in injury unless: a) harm was
intentionally committed by 3rd person and b) was not within the scope of risk

5) Fritts: Cause in fact: Factually contributed to the happening of the event

Proximate cause: if a but for cause, proximate cause applies only when it would be
fair or just to hold D responsible

6) Pena: In determining whether a force is superseding so as to defeat proximate

cause, Examine: 1) whether the harm is of the same kind as would otherwise occur
(like scope of risk). 2) Whether the consequences seem extrodinary (rather than
normal) 3) Whether the intervening force is operating independently 4) whether
the intervening force is a third party 5) whether the intervening force was
independently subject the third party to liability 6) degree of culpability of the 3 rd
party (the more culpable the third party becomes the greater chances of being held
liable, so more D friendly for criminal intervening forces)

A. Cause in fact
1. Basic Doctrine
62

a. Stubbs v City of Rochester, In favor of P for causation, D

supplied Hemlock system water for drinking and Holly water for
fire fighting, Hemlock water was pure but Holly was not, P
contracted typhoid and alleged disease was caused by
contaminated water caused by intermingling the two water
systems, P’s expert presented evidence to this effect
i. Rule: But for test If there is a reasonable certainty that
D’s actions caused P’s injury then there is causation
ii. Application: P showed sufficient proof so that a reasonable
inference of causation could be drawn, sufficient evidence
was introduced to submit case to the jury
iii. Example: Hypo 3 There was not reasonable certainty
that Mc’s conduct was a cause of K’s run in with the gorilla
iv. Distinction fro Zuchowicz: This is a higher standard than
Zuchowicz
b. Zuchowicz v United States (substantial factor), In favor
of P for D’s over prescription as a substantial factor, P prescribed
twice the maximum dosage of Danocrine, experienced symptoms
and was eventually diagnosed with PPH (life expectancy two
years), one month after giving birth P died, P’s husband continued
suit against D for negligence, experts testified that Danocrine was
the likely cause of the PPH that was a substantial factor that led
to her death
i. Rule: 1) Zuchowicz + restatement (second): D’s act must be
a “substantial factor”
ii. Application: Expert witnesses proved there was enough
evidence to show D’s negligent over prescription of
Danocrine was a substantial factor in P’s contracting PPH
iii. Note: This case demonstrates you don’t need direct
evidence of causation
iv. Example: Hypo 3 MC’s failure to supervise K was a
substantial factor in the gorilla attack, K would not have
been wondering around otherwise
c. Alberts v Schultz (lost chance), In favor of D for no lost
chance because P could not prove with substantial certainty that
D’s conduct caused leg amputation, P suffered from a narrowing
of blood vessels restricting blood flow to leg, P went a dr. (D1)
who did not diagnose problem, 13 days later P goes to D2 who
sends him immediately to hospital, P’s leg was eventually
amputated
i. Rule: You have to show to a reasonable degree of medical
probability that the alleged negligence caused you to suffer
the harm
 MCALLISTER 6
3

ii. Application: P could not show that there was a window of

time when measures could have been taken to prevent the
amputation of P’s leg
iii. Note: The core of this claim is that prior to D’s negligence P
would have been better off with adequate care
d. Hicks: If there was any substantial possibility of survival and D
destroyed it, he is answerable, if P had a chance of getting better
and D was negligent, then D is liable
i. Application: This rule is more P friendly, If this had been
applied in Alberts then P may very well have one because if
P had any chance of getting better than D would have been
liable
e. Falcon: loss of chance analysis, compensation is based on the
chance of recovery that were destroyed by the D’s negligence
i. Note: Here there must be a degree of certainty regarding
causation between P’s injury and D’s negligence for P to
receive compensation
2. Introduction to Joint and Several liability
a. Concert of action
i. Imposes liability on D for harm caused by the tortuous act
of another person if the defendant did “a tortuous act in
concert with the other or pursuant to a common design
with him” §876 restatement second
ii. Or D may be liable if he knows “that the other’s conduct
constitutes a breach of duty and gives substantial
assistance or encouragement to the other so to conduct
himself” §876 restatement second
iii. E.g. drunk driving case where D (passenger) encourages
driver to continue smoking pot and drinking when he was
already visibly intoxicated, the D would be liable
iv. E.g. Drag racing, it takes two
b. Alternative liability
i. Avoids the traditional requirement that P show more than a
50 percent probability that D was negligent and that
negligence caused P’s harm when it is clear that both D’s
were negligent
ii. Example: Summers v Tice the court imposed joint
liability for two hunters for two birdshot wounds sustained
by P in whose direction D’s both negligently fired when
there was no way to know which D’s shot had caused either
wound
iii. Policy concern: This case presented the problem of either
imposing liability on two culpable persons for an injury
64

which one may not have caused or letting them both go

entirely free and denying recovery to P
3. Multiple Defendants
a. Summers v Tice, In favor of P for a determination of causation,
D’s were hunting for quail, both fired in P’s direction, only one shot
hit, court could not tell whose shot hit P
i. Rule: Concert of action, alternative liability
ii. Concert Application: The court does not find concert of
action doctrine applicable because there is no evidence that
D’s acted in concert when they shot P
iii. Alternative Application: D’s were equally negligent so
both are liable despite that causation can not be attached
iv. Note: Similar to Ybarra D’s were clearly negligent and they
are in a better position to state who caused the injury, this
rule provides the incentive to do so
b. Loui v Oakely (notes case), P was injured on three separate
occasions, D’s injury was the most recent and the tipping point,
i. Rule: Alternative liability, rough apportionment
ii. Alternative Application: This was found to be
distinguishable from Summers because D’s were not
equally liable
iii. Rough Apportionment: Arbitrary rule used if jury could
not determine liability
iv. Note: The egg shell plaintiff rule could be used here and the
last D who was involved in accident could be held liable
c. Hymowitz v Eli Lilly (market share analysis), In favor
of P for market share analysis, Hymowitz was one P in a series of
cases against manufacturers of the drug DES, originally used to
treat various maladies but turned out to cause vaginal cancer and
deformities in children, because drug was a generic P’s could not
prove causation,
i. Rule: 1) Hymowitz: In DES cases, attribute liability
according to shares of national market
ii. Application: D is liable according to his market share, P
still has to show that D sold DES for pregnancy, that her
mother took the drug, and that she was injured
iii. Note: We cannot apply concert of action because there is
no evidence D’s acted in concert, and we can’t apply
alternative liability because it is based on the premise
that D’s have better access to information, there is a small
number of D’s all of whom breached a duty, and the
likelihood that a D breached duty is relatively high, here the
exact opposite of these reasons is the case
iv. Note: Liability is several not joint because each D is paying
their portion of the liability according to market share
 MCALLISTER 6
5

v. Enterprise Liability: Similar to in concert liability for

companies, it opts for treating the companies as if they had
been acting in concert
d. Enright v Eli Lilly (supplement p.263), In favor of D for
strict liability not applying to a 3rd generation DES case, P’s mother
had sustained damage to her reproductive system that had
resulted from her mothers consumption of DES and this damage
caused her child’s premature birth which was the cause of her
cerebral palsy
i. Rule: 3rd generation claimants are too far removed to
collect for damage resulting from cerebral palsy
ii. Application: Because of the risk of limitless liability P as a
third generation victim of DES cannot collect
iii. Dissent: P’s injury is obviously traceable to DES
consumption, thus she should be able to collect
B. Proximate Cause
Proximate Cause: Is used to determine the extent of D’s liability after actual
causation is established. It is an attempt to deal with the problem of liability for
unforeseeable or unusual consequences following D’s acts, how far public policy will
extend liability to the D for consequences of his act.

1. Unexpected harm
a. Benn v Thomas (egg shell plaintiff), In favor of P for being
allowed to present to jury whether he can collect damages based
on death, Benn’s executor (P) sued D after D’s semi hit P’s van, P
sustained bruised chest and fractured ankle, P died from heart
attack 6 days later, P’s medical expert testified accident as cause of
his death despite history of coronary problems, P received
damages for negligence from injuries sustained in accident
i. Rule: Egg shell plaintiff we take our victims as we find
them
ii. Application: Jury can decide whether P’s heart attack was
the direct result of the injury caused by D
iii. Note: Egg shell P rule applies to proximate causation,
foreseeability does not matter in determining causation
because we take our victims as we find them
b. In re Polemis, (different injury foreseeable), In favor of
P, P’s charted ship to D’s, while unloading D dropped a plank
causing spark to ignite and a resulted in a fire that destroyed the
vessel, D’s argue they should not be liable because destruction of
boat not foreseeable
i. Rule: D is responsible for all consequences of actions
whether or not they are foreseeable
66

ii. Application: That damage could be foreseen from the

falling plank indicates D is liable for damages regardless of
the whether resulting damages were foreseeable
iii. Note: Foreseeability is important when determining
negligence but once negligence is established, negligent
party is liable regardless of foreseeability
c. Overseas Tankship v The Wagon Mound, In favor of D
not having to pay damages because they were not foreseeable, D’s
freighter was moored near P’s wharf, D’s ship negligently
discharged oil, P’s workers were welding on dock, spark ignited oil
damaging dock and two ships moored there
i. Rule: If D breaches a duty + there is a cause in fact, D is
responsible if P’s injuries were reasonably foreseeable
ii. Application: D’s breached a duty by being negligent and
their negligence was a cause in fact of the damage P
incurred, but D is not liable because P’s injuries were not
foreseeable
iii. Example: Hypo 3 Mc has an argument that gorilla attack
was not a foreseeable consequence of his failure to
adequately supervise K
2. Superseding Cause
Indirect results of D’s act: Indirect results occur when there is an intervening force
between D’s act and the harm caused to P. These intervening causes generally do
not relieve D of liability unless they are both not foreseeable and bring about
unforeseen results. In these cases the intervening causes are “superseding”. The
test is based on reasonable foreseeability.

a. Doe v Manheimer, In favor of D despite being a superseding

cause, while working as a meter maid in a high crime area P was
forced behind some overgrown pushes on a property owned by D
and raped, P experienced severe distress, P sued D for personal
injuries sustained during the attack, P’s expert alleged that bushes
created a protective zone facilitating rape
i. Rule: Restatement 2nd on Superseding Cause: A negligent D
is liable if the risk of harm and conduct was a substantial
factor in injury (but for causation) unless: a) harm was
intentionally committed by 3rd person and b) was not
within the scope of risk
ii. Application: D’s actions were a but for and negligent cause
of P’s injury (substantial factor), and the harm was
intentionally caused by a third party but it was not within
the scope of D’s risk because people hadn’t been raped
there before
 MCALLISTER 6
7

iii. Scope of Risk note: to be within the scope of the risk the
harm actually suffered must be of the same general type
that makes D negligent in the first place
iv. Example: Hypo 3 While Mc’s negligence in failing to
supervise may have been a substantial factor (superseding
cause) in K’s injury the harm was committed by the gorilla
(a third party) and it was not within the scope of the risk
created by Mc’s negligence
b. Yun v Ford Motor, In favor of D for defective spare tire
assembly as not being the proximate cause of P’s injury, decedent
was driving with his daughter at night when spare part assembly
broke on the parkway, decedent (65 years old) got out of back seat
to retrieve spare tire and other parts, decedent was struck by
Precious Linderman, P sues D for design defect
i. Rule: If a P’s behavior is so unreasonable they have
assumed the risk and their own behavior can act as a
superseding cause barring recovery
ii. Application: Decedent assumed the risk when he walked
across two lanes of traffic at night on a wet parkway,
decedents behavior was so unreasonable that it acted as a
superseding cause of the accident exonerating D from
liability
iii. Note: If decedent had not engaged in the unreasonable
behavior of running across two lanes of traffic on the
parkway at night it would not have been a superseding
cause of the accident and D would have been held strictly
liable for design defect
c. Phan Son Van v Pena, In favor of D for 3rd party criminal acts as a
superseding cause, gang members were drinking and some of the
liquor was provided by D (Phan Son Van), gang members were
“out of control” after a recent initation of a new member and
members raped and murdered two girls, P sues department store
owner who provided alcohol
i. Rule: In determining whether a force is superseding so as
to defeat proximate cause, Examine: 1) whether the harm is
of the same kind as would otherwise occur (like scope of
risk). 2) Whether the consequences seem extraordinary
(rather than normal) 3) Whether the intervening force is
operating independently 4) whether the intervening force
is a third party 5) whether the intervening force was
independently subject to third party to liability 6) degree of
culpability of the 3rd party (the more culpable the third
party becomes the greater chances of being held liable, so
more D friendly for criminal intervening forces)
68

ii. Application: 1) One would not think that furnishing

alcohol to minors can result in the rape and murder of two
girls 2) the girls getting raped and murdered seems like an
extraordinary consequence of furnishing underage minors
with alcohol, 3) The gang members were acting
independently of the store owner 4) The intervening force
was a third party, 5) They were subject to liability, 6)
because they were committing intentional criminal acts
they were extremely culpable
iii. Note:
3. Unexpected Victim
The forseeability criteria have been extended to the question of to whom does the D
owe a duty

a. Fritts v McKinne (p.459), In favor of D for being a proximate

cause but not responsible, P’s dead husband was driving drunk
with another drunk friend and crashed into a tree breaking all of
his major facial bones, D performed a traecheatomy so that P could
breath during surgery so his face could be repaired, decedent
began bleeding profusely as traechaetomy was performed, D
claims that due to decedents abnormal anatomy an artery that was
supposed to be in his chest was in his neck causing the subsequent
death that resulted, P files wrongful death suit, D alleges a
comparative negligence defense saying that the decedent caused
his own injury
i. Rule: Cause in fact: Factually contributed to the happening
of the event, Proximate cause: if a but for cause, proximate
cause applies only when it would be fair or just to hold D
responsible
ii. Application: While decedent was comparatively negligent
D can still be held liable despite comparative negligence
and decedents substance abuse is only relevant regarding
the issue of damages and life expectancy
iii. Note:
b. Palsgraf v Long Island Railroad Co (Duty owed to
plaintiff), In favor of D for no duty to P, P was waiting on
platform for train to arrive when D’s negligently assisted a third
party onto a moving train, third party drops package containing
firecrackers that explode causing scale to fall on opposite end of
platform injuring
i. Rule: Reasonably perceivable risk defines the duty to be
obeyed
ii. Application: It was not reasonably foreseeable that parcel
falling would cause such damage to P
 MCALLISTER 6
9

iii. Note: Negligence by itself is not a tort, it must be negligence

in relation to P, here P’s injury was not within the scope of
the risk created by their negligence
c. Moore v Shah (notes case), In favor of D, P donates a kidney to
father who was negligently injured by D’s malpractice, P alleged
that he was a rescuer entitled to recovery,
i. Rule:
ii. Application:
iii. Holding: Although it was foreseeable D’s negligence could
create the need for a kidney and that child might donate to
father, Court in favor of D because P’s actions were not
spontaneous but were deliberate and not under the
pressures of an emergency situation and were significantly
after D’s negligent acts

CHAPTER SIX: NEGLIGENCE DEFENSES

Contributory Negligence:

 If P was negligent, then P’s action is banned

o Exceptions: 1) if D was reckless, 2) If D had last clear chance to avoid
injury

Comparative Negligence:

A) Uniform comparative Fault Act (p.447): 1) contributory fault diminishes

proportionately the amount of P’s damages, 2) responsibility is measured by degree
of fault and/or causation and 3) should consider reckless magnitude of risk, actors
superior or inferior capacities, existence of an emergency (these highlight the
capacities of the actor, the risk, and whether there was some kind of extenuating
circumstance like an emergency that could have excused the P’s conduct) see p. 450
for complete list of factors

Determining if to void exculpatory agreement based on public policy

Tunkl (p. 468): Consider the following factors in evaluating a liability waiver
whether business is 1) open to the public, 2) has a great bargaining advantage, 3) is
using adhesion contract (the difference between a fraternity and a restaurant like
Macdonalds), 4) is dealing with vulnerable P’s (P is vulnerable while on D’s property
and unable to protect themselves)

Implied Assumption of Risk:

Murphy: One who participates in an activity waives claims involving any dangers
inherent to the activity unless a) dangers are hidden and hard to discover OR b)
activity is so inherently dangerous that greater regulation is necessary
70

A. The Plantiff’s Fault

1. Contributory Negligence (defense to negligence)
i. General: Conduct on behalf of P that contributes as a legal cause
to the harm P has suffered, conduct must fall below the standard
to which P must conform. The criteria are the same as that of
negligence, reasonable care for one’s (P’s) own safety rather than
the safety of others, we can still apply the Carol Towing formula
for negligence,
ii. Note: an act done by D may not be considered negligent if it was
committed by P as we use a reasonable person standard that is
subjective in the sense that it looks at the individuals
circumstances
iii. Common Law Rule: a P’s action for negligence is barred by her
own negligent conduct if such conduct is a substantial factor in
bringing about her own injury. Thus its effect is to give D a
complete defense (no liability)
2. Comparative Negligence
i. Pure: allows a P to recover a percentage of his damages even if his
own negligence exceeds that of defendant
ii. Partial: Deny recovery to P’s whose negligence equals or exceeds
that of D, some jurisdictions have a modified version where P
collects if there negligence is less than 50 percent
iii. Multiple Defendants: When several D’s are negligent but not
jointly liable some jurisdicitions hold that P’s negligence must be
less than that of combined D’s, most however, allow recover if P’s
negligence is less than the total of D’s negligence
iv. Hypo three example When J fell into the pothole I may have
potentially had a comparative negligence defense because J should
have seen the pothole
v. Iowa Code
1. Rule: 1) proportional diminishment unless P bears a grater
percentage of fault than the other parties combined.
2. Note: The fault act gives a lot more guidance on who is
responsible for what
3. Note: More D friendly
4. Difference from West Virginia: d
B. Assumption of Risk (2 types, express+ implied)
This defense arises when the P voluntarily encounters a known danger and by his
conduct expressly or impliedly consents to take the risk of the danger. In these
cases D is relieved of responsibility.
 MCALLISTER 7
1

1. Express Agreements
i. Dalury v S-K-I Ltd, (exculpatory Agreement Void)
p.467, In favor of P for voiding exculpatory agreement that
released ski area from negligence, P (Dalury) was injured when he
struck a pole that was part of a control maze for a ski lift owned by
D
1. Rule: If D has a business that potentially affects a lot of
people, D has a duty to warn of or correct dangers that
could reasonably have been foreseen
2. Application The volume of D’s business creates a public
interest and as such D has a duty to correct dangers that
could have been reasonably foreseen to create problems
3. Restatement Second §496B comment b: An exculpatory
agreement should be upheld if it is “freely and fairly made,”
between parties “who are in equal bargaining position” and
“there is no social interest with which it interferes”
4. Public Policy Note: Public policy forbids exculpatory
agreements for pre injury release because it is wrong to put
one party to a contract at the mercy of another party’s
negligence, see below for rule on public policy
5. Tunkl (p. 468): Consider the following factors in
evaluating a liability waiver whether business is 1) open to
the public, 2) has a great bargaining advantage, 3) is using
adhesion contract (the difference between a fraternity and
a restaurant like Macdonalds), 4) is dealing with vulnerable
P’s (P is vulnerable while on D’s property and unable to
protect themselves)
6. Note: If D had not negligently marked pole then P would
have assumed the risk because skiing is an inherently
dangerous activity
7. Field Trip waivers When parents sign waivers they are
generally not binding to other members of the family
2. Implied Assumption of risk
i. Murphy v Steeplechase Amusement Co (voluntary
assumption of risk), P (Murphy) got a ride at D’s amusement
park called the Flopper, this ride had a belt that made people fall, P
fell and was injured and sued D for negligence,
1. Rule: One who participates in an activity waives claims
involving any dangers inherent to the activity unless a)
dangers are hidden and hard to discover OR b) activity is so
inherently dangerous that greater regulation is necessary
72

2. Application: P knew the dangers of the ride from watching

the people on the belt in front of him, no warnings were
necessary
3. Exception: If the ride was missing padding that was not
easily visible, and P has been injured by falling on that
location, them that would have constituted a hidden danger
4. Exception: If amusement had sanctioned the playing of
Russian Roulette then that would have been so inherently
dangerous as to give grounds to a suit
5. Activities Note: For many activities like sports or watching
a softball game (mainly sports) people know they are
inherently dangerous but they don’t know the exact
dangers inherent, so the issue becomes whether or not to
let them collect, we can make this argument in Murphy by
saying P did not know he would potentially break is knee
because there was no warning
ii. Davenport v Cotton Hope Plantation (comparative
negligence and assumption of risk) p.482, In favor of P
(Davenport) for having not assumed more than the 50% of the risk
required to bar him from recovery, P leased a condo from D, for
two months P had reported to D that the light at the bottom of his
stairs was not working and one evening P fell, TC found for D
finding P had assumed risk or was at least 50 percent negligent,
appeals court reversed, D appeals
1. Rule: Currently to establish assumption of risk, P must: I)
have knowledge of the dangerous condition, II) know the
condition is dangerous, III) appreciate the nature and
extent of the danger, IV) voluntarily expose himself to the
danger (Not teacher rule)
2. Application: N/A
3. Express Assumption of the risk: Applies when the parties
expressly agree in advance, either in writing or orally, that
the P will relieve the D of his legal duty toward P (here D
could not be charged with negligence)
4. West Virginia Approach: The absolute defense of
assumption of risk was incompatible with a comparative
negligence system because comparative negligence is based
on apportioned percentages of blame, so they adopted a
comparative assumption of the risk rule stating that P was
not barred from recovery by the doctrine of assumption of
the risk unless his fault is greater than D’s
 MCALLISTER 7
3

a. Note: This is a modified comparative negligence

system
b. Note: Assumption of the risk not a complete bar
5. Rhode Island rule: Assumption of the risk as an absolute
bar to recovery,
iii. Levandoski v Cone p.490, In favor of P for, P was a police
officer responding to a noise complaint at a party, P chased into
woods D and fell off a ledge onto some rocks sustaining severe
injuries, P sues D for negligence
1. Fire Fighters Rule: a firefighter or police officer who goes
onto private property in exercise of his duty has the status
of a licensee, and the property owner owes such a person a
duty of care that is less than that owed to a normal licensee
2. Application: D did not own the house whose woods he ran
into, thus the duty of the owner to P did not shield D from
liability
3. Note: When a police officer goes onto land they assume the
risk of harm (landowner owes not duty) but that duty does
not apply to a 3rd parties negligence

CHAPTER ONE: INTRODUCTION TO TORT LIABILITY

A. Vicarious Liability
Defendants may be held liable for another’s torts in many circumstances e.g. a
corporation may be held liable for the torts of employees

1. Christensen v Swenson, In favor of P for potential vicarious liability

to D2, D (Swenson) a security guard for burns (D2) worked 8 hour shifts
without breaks but was allowed 10-15 min lunch/bathroom breaks, D left
post to drive across the street to get lunch trying not to exceed break
time, but upon return collided with P, P sued D’s claiming D had driven
negligently
a. Rule: Scope of employment factors, I) The employees conduct
must be the general kind the employee was hired to do, not
personal endeavors, II) The conduct must occur substantially
within the hours and ordinary spatial boundaries of the
employment, III) The conduct must at least be partially motivated
by the purpose (at least in part) of serving the employers interest
(not teacher rule)
b. Application: Workers are being paid for their breaks and they are
only 10-15 min (factor 1), D was hired to maintain a secure
atmosphere in the area and her presence at the restaurant could
74

have contributed to that thus she would have been within her
spatial boundaries (factor 2)
c. Note: This can apply to Battery (bouncers), Paparazzi’s (assault)
2. Roessler v Novak, In favor of P for vicarious liability on D2,
(Roessler) had to have a surgery at D2’s hospital where he was evaluated
and admitted, D (Novak) allegedly negligently diagnosed P and did so
while an agent at D2’s hospital
a. Rule: Apparent agency elements I) Representation by the
purported principal (hospital), II) Reliance on that representation
by a third party, III) A change in position by the third party due to
the representation (reliance)
b. Application: D sought the services of D2 when he went to their
emergency department and was sent to radiology department
without being told it was not a part of the hospital, the department
was independently functioning and operated 24/7 within the
hospital and had no offices outside hospital (factor 1) , P accepted
the physicians provide by D2 without seeking further
representation (factor 2),
c. Note: This is justified in part because without an agency rule
employers could use independent contractors to escape liability

CHAPTER NINE: TRESPASS AND NUISANCE

Trespass Rule: An act by D that that disrupts P’s right to possession

Nuisance Test: Intentional interference with the use and enjoyment of land, the
things the court considers are; property values (undertaker causes property value
to go down), the social value of the D’s conduct (is D doing something socially
valuable), the suitability of the conduct to that particular place (e.g. having a bar in a
residential area), and the impractibility of preventing the invasion

A. Trespass
1. Martin v Reynolds Metals Co, In favor of P for trespass, P had a
farm next to D’s plant, chemicals were being emitted from D’s aluminum
plant that were settling on P’s land, killing his livestock, making the land
useless,
i. Rule: An act by D that that disrupts P’s right to possession
ii. Application: D acted by invading P’s land with air born chemicals
that disrupted P’s right to possession
iii. Note: It does not matter that we can’t see the particles, they exist
and invaded the exclusive possession of P’s property, its about the
objects energy/force rather than size
iv. Note: Its easier to win trespass claims than nuisance claims
 MCALLISTER 7
5

B. Nuisance
Nuisances are types of damage or harm. It is best considered as a field of liability
rather than as a particular tort. The utility of the D’s activity versus the harm to P’s
interests is the key to nuisance. Each possessor of land is privileged to use her own
property to conduct affairs at the expense of some harm to their neighbor’s, if the
use is “unreasonable” it will constitute a nuisance.

1. Travis et al v Moore, In favor of P for nuisance, P’s owned land near

a plot where a funeral home was to be constructed, the neighborhood was
primarily residential with some businesses—a night club and a saw mill
i. Rule: Nuisance Test Intentional interference with the use and
enjoyment of land, the things the court considers are; property
values (undertaking establishment causes property value to go
down), the social value of the D’s conduct (is D doing something
socially valuable), the suitability of the conduct to that particular
place (e.g. having a bar in a residential area), and the impractibility
of preventing the invasion
ii. Application: The funeral home interfering with P’s enjoyment of
their land by causing depressing feelings to the family in the
immediate neighborhood, the presence of the funeral home would
have an adverse effect on property values, while funeral homes are
a necessity of life there are other suitable locations for the funeral
home to be placed that wouldn’t impinge on residents, and it
would be impractical to have a funeral home In the middle of a
residential area
2. Boomer v Atlantic Cement Co (judicial injunction), In favor of P for
permanent damages, P’s from Boomer among others suffered damages
from dirt, smoke, and vibrations from D’s cement palnt, TC found D
maintained a nuisance that substantially damaged P’s properties but
court did not issue an injunction because the damage was substantially
less compared to the social value of D’s conduct,
i. Rule: Nuisance TestIntentional interference with the use and
enjoyment of land, the things the court considers are; property
values (undertaker causes property value to go down), the social
value of the D’s conduct (is D doing something socially valuable),
the suitability of the conduct to that particular place (e.g. having a
bar in a residential area), and the impractibility of preventing the
invasion
ii. Application: supra
iii. Permanent damages: The application of permanent damages is
acceptable here because the value of D’s service is substantially
more than the damages suffered by P’s, thus the court ordered an
injunction until permanent damages
76

iv. Rationale: The damages will recompensate the property owner

and at the same time provide the incentive to the business to abate
the nuisance and avoid law suits by others

CHAPTER TEN: DAMAGES AND INSURANCE

Punitive Damages: Punitive damages equal the sum of money over and above what
will compensate the plaintiff fully for the loss suffered. The purpose of punitive
damages is to punish the defendant and to make an example to others in instances
where the defendants conduct is of an aggravated nature (e.g. intent to injure, willful
and wanton misconduct, or gross disregard of the consequences).

B. Damages
3. Compensatory Damages
a. Seffert v Los Angeles Transit, In favor of P for court not
being able to reduce damages, P (Seffert) was getting onto a bus
operated by D when the bus door closed on her foot, dragging her
a short distance, causing permanent disfigurement to her foot,
permanent crippling, and permanent pain, p has had nine
operations including skin grafts proving 54k in medical expenses
and is rquisting 134k for pain and suffering
i. Rule:
b. McDougald v Garber
4. Punitive Damages
a. Taylor v Superior Court

SUPPLEMENT: WORKERS COMPENSATION

Workers Compensation: A bargain between employers and employees, it is
designed to give employers the likeliness they will have to pay out less money,
employees won’t have worry about paying lawyers, and they will get their money
right away

No fault system Its not about whose fault it is, its about compensation for injuries
that are work related

Common Problems: 1) Causation Were the injuries actually caused by problems

from work 2) whether your injuries fall under workman’s compensation

Major points: 1) to be compensated an injury must be “in the course of” and “arise
from work”. Arising from means that being at work is a but for cause. In thecourse
of work means that the injury needs to happen substantially within the time, space,
and duties, of the job. These rules come from Clodgo
 MCALLISTER 7
7

A. Clodgo v Renata-vision, In favor of D for no collection to P, (Clodgo) wa

working as a manager of D’s store, and engaged in horse play by firing staple at
another colleague when the colleague returned fire P was hit in the eye with a
staple, P filed a workmans comp claim and D contested the award, stating it was
non compensatable because it occurred while engaged in horse play
a. Rule: 1) to be compensated an injury must be “in the course of” and
“arise from work”. Arising from means that being at work is a but for
cause. In the course of work means that the injury needs to happen
substantially within the time, space, and duties, of the job. These rules
come from Clodgo 2) occurred in the course of employment
b. Application: P satisfies the arising out of work element because these
guys would not have been firing staples at each other if they had not been
at work, in regards to the occurred in the course of employment the
commissioner found the activity comingled with work because no one
had been fired for the activity in the past and it occurred during a lull in
business, but the court feels this was a deviation from normal activities
and is not compensatable
c. Application continued: The court disagrees with this point, if an
employer condones a behavior then it should be compensatable
d. Note: A problem here was the court stepped in and overrode the
commissioner on a workman’s compensation issue thus defeating the
purpose of a separate form of adjudication for workers compensation
claims
B. Wilson v Oakland Unified school district, In favor of D, P was driving
to school with a bag of thread spools used in art class, materials graded at home
from the previous evening, and a few books including a teachers manuel, P was
involved in an accident and sustained injuries during this commute,
a. Rule: 1) to be compensated an injury must be “in the course of” and
“arise from work”. Arising from means that being at work is a but for
cause. In the course of work means that the injury needs to happen
substantially within the time, space, and duties, of the job. These rules
come from Clodgo
b. Application: There is not proof that the facilities at school are not
sufficient to permit the completion of the preparatory chores and thus P
performed work at home for her own convenience and thus they were
not with in the confines of her job
c. Note: Coming and going rule workers compensation does not
ordinarily compensate injuries sustained while traveling to or from work

CHAPTER ELEVEN: A SURVEY OF ALTERNATIVES

D. Focused No Fault Schemes
E. Comprehensive No fault Schemes
78
MCALLISTER 7
9