Elle Klein Torts Walker Smith Fall 2015

A. Introduction
a. Tort = a civil wrong, other than breach of Contract, for which the law provides a
remedy
b. Goals/Policy Concerns of Tort Law = A FAIR DEAL
1) Allocation of Losses Compensation
2) Fairness
1. Making the victim whole again
3) Deterrence
4) Economic Considerations
5) Administrative Concerns of the Courts
1. Not overburdening the Court system
2. Rules understandable & jury can use rules properly
6) Legislative Considerations
c. Culpability Spectrum
1) Innocent Conduct Negligence Recklessness Intentional Misconduct
2) Intended Harm
1. Willfulness. Compensation for physical and emotional harm
3) Unintended Harm
1. Strict Liability responsibility based on causation
2. Negligence Unreasonable conduct that creates a risk of harm
3. Recklessness conscious disregard of a high risk of serious harm.
Punitive damages allowed.
B. Vicarious Liability
a. Elements
1) The existence of an employer-employee relationship
2) Conduct by the employee acting within the scope of employment.
b. Policy Rationales
1) Control of conduct prevent in the future with better control of employees
2) Accident prevention
3) Business Enterprise
4) Spreading the Cost of Accidents
5) Assuring Compensation
6) Fairness
c. Element Analysis: Employee v. Independent Contractor
1) General Rule: Vicarious liability is not imposed on an independent
contractor
2) 10 Factors for determining whether a person is an employee or an
independent contractor.
1. The extent of control which the employer may exercise over thee detail
of work **chief determining factor**
a. Hiring party has control over end product, NOT methods/means
used IC
2. Whether the one employed is engaged in a distinct occupation or
business
3. The kind of occupation, with reference to whether, in the locality, the
work is usually done under the direction of the employer w/o
supervision
4. The skill required
5. Whether the employer or the one employed supplies the
tools/materials/place of work for the person doing the work
6. The length of time or by the job
7. Whether the work is part of the regular business of the employer
8. Whether the parties believe they are creating an agency relationship
9. Whether the employer is or is not in business

Elle Klein Torts Walker Smith Fall 2015

3) Exceptions
1. Inherently Dangerous Activities activity involves peculiar risk of
harm that calls for more than ordinary precautions (mine blasting)
a. Exception to the exception: If the risk was not known or should
not have been known,
2. Non-delegable duties imposed by statute or contract can make IC
do them, but liable
a. The non-delegable duty doctrine means that the party with such
a duty may not absolve itself of liability by contracting out the
performance of that duty.
3. Apparent Authority misrepresentation leads to VL
4. Illegal Activities VL for contracting for illegal actions
4) Kime v. Hobbs Hobbs (farmer) hired Yelli to haul cattle. Yelli hit Kime.
Yelli was determined to be an Ind. contractor and Hobbs is not VL.
5) Franchisor-Franchisee Did the franchise have control on the day to day
operations/conduct that caused the harm & employee acted within SoE?
1. McDonalds controlled coffee temp V.L.
d. Element Analysis: Scope of Employment
1) No precise definition, but broad criteria:
1. Conduct of a servant is within the scope of employment if, but only if:
(1) it is of the kind he is employed to perform; (2) it occurs
substantially within the authorized time and space limits; and (3) it is
actuated, at least in part, by a purpose to serve the master
2) Frolic v. Detour Test
1. Frolic pursuit of an employees personal business. Seen as unrelated
to employment
2. Detour an employees slight deviation for personal reasons that is
nonetheless seen as sufficiently related to employment.
3. Factors used to determine between frolic and detour
a. Employees intent
b. Nature, time, and place of deviation
c. Time consumed in deviation
d. Work employee was hired for
e. Incidental acts reasonably expected by the employer
f. Freedom allowed to the employee in performing the job
4. Note: An employee can abandon a frolic and reenter the SoE.
3) Pyne v. Witmer employee taking test for employer 2.5 hours after test
killed in accident. Should have been sent to jury to decide if it was for within
scope and if it was a frolic or detour
1. Rule: An employer (anyone with control or right to control the work) is
vicariously liable for the negligence of an employee that occurs within
the scope of employment.
e. Negligent entrustment
1) Gadson v. Eco Services employee let cousin drive work truck after
hours. Cousin consumed alcohol. Got in accident and injuring . Brought
suit of negligent entrustment against Eco Services and employee
1. Elements:
a. Knowledge of or knowledge imputable to owner that driver was
either addicted to intoxicants or had the habit of drinking;
b. Owner knew or had imputable knowledge that driver was likely
to drive while intoxicated
c. And under these circumstances, entrustment of a vehicle by the
owner to such a driver.
C. Negligence

Elle Klein Torts Walker Smith Fall 2015

(elements: duty, breach, causation, scope of liability, damages)

a. Overview of the Elements of a Negligence Case
1) Duty Judge
1. General rule: an actor owes a duty of reasonable care under the
circumstances to those persons who are foreseeably exposed to
physical risks arising from the actors conduct
2. Under Cardoza, duty to those foreseeable; Under Andrews, duty to
everyone (Palsgraf)
3. Privity: Buick Motor Co. the proximity or the remoteness of the
relation is something to be considered.
2) Breach of Duty Judge then jury
1. Relates to whether the has failed to meet standard of care, which is
the measure of the s legal obligation to the
2. A negligence case is based on foreseeable risk of harm due to action
and whether, in light of those risks, the action was reasonable or
unreasonable.
3. Conduct is tested against a reasonsbale person standard.
a. Two elements: foreseeable risks of harm and unreasonable
conduct in light of those risks
b. Objective standard requires a determination of what a
hypothetical reasonable person would have done under the
circumstances and then measures the s conduct against that
standard.
3) Cause in Fact jury
1. Ties the s breach of duty to the s injury
2. Two tests:
a. But-for
b. Substantial factor
4) Proximate Cause/Scope of Liability jury
1. A liability limitation device
2. Action may cause readily foreseeable harm (primary risk), but also may
have rippling effect creating subordinate risks (ancillary risks)
3. Scope of liability elements suggest that although the had a duty to
exercise reasonable care, engaged in careless behavior, and the
carelessness was the casue-in-fact of the s injuries, there may be
some factual settings in which imposing liability may be inappropriate
because it pushes liability too far.
5) Damages jury
1. Principal theory is to return the injured plaintiff back to pre-injured
postion
2. Includes medical bills, lost wages, emotional harm, loss of consortium
3. Typically lump sum
6) Defenses (not an element, but relevant)
1. Comes after a has established a prima facie case
2. will try to assert that is not the cause or try to use an affirmative
defense
3. Affrimative defenses:
a. Contributory negligence, assumption of risk, statute of
limitations
4. Immunity defenses:
a. Governmental, charitable, familial
b. Proving the elements of a Negligence case
1) Two concerns are of considerable importance

Elle Klein Torts Walker Smith Fall 2015

1. Proof need be a preponderance of the evidence that each element is

satisfied.
2. Burden of proof has two elements:
a. The burden of production or coming forward with evidence
b. The burden of persuasion
D. Duty determined by judge bc matter of law
a. General duty of Reasonable Care:
1) General rule: an actor owes a duty of reasonable care under the
circumstances to those persons who are foreseeably exposed to physical
risks arising from the actors conduct
2) Placed on all persons not to place others at foreseeable risk of harm
a. (aka: applies automatically)
b. Objective standard
2. Adults reasonable person standard (objective)
3. Children child standard of care
4. Physically disabled persons reasonable person with same abilities
5. Mentally disabled persons held to same reasonable standard as
average sane person
3) An unforeseen plaintiff is a plaintiff whose claim arises based on the
negligence of a with respect to a different . In Palsgraf v. Long Island RR
Co, Cardoza held that the guard pushing the passenger created liability to a
small set of potential plaintiffs who were close to the train. Palsgraf was
standing at some distance away. According to the Cardozo rationale,
Palsgraff was an unforeseeable plaintiff. Her risk of injury was outside of
what a reasonable person in the position of the s employee would have
foreseen.
b. Manufacturers General Duty
1) an actor owes a duty of reasonable care under the circumstances to those
persons who are foreseeably exposed to foreseeable physical risks
arising from the actors conduct (Macpherson v. Buick Motor Co NY 1916)
via Cardozo
1. Knowledge of probably danger arising from product
2. Knowledge that the danger will be shared by others than the buyers
3. Proximity or remoteness of the relationship is a factor to be considered
(privity via Winterbottom) **scope of liability is expanded**
c. Limited Duty Rules
Categories of Limited Duties:
1) No duty to assist, act, or rescue
Owners & occupiers of land
1. Exceptions
Duty to Act/assist/rescue
a. Misfeasance- where
Misfeasance/nonfeasance
youve caused harm
Duty to protect against criminal acts
through your actions
Police Duty to Protect
Economic Loss
(nonfeasance where risk
Loss of consortium
of harm did not come from
Emotional Harm w/o Physical Injury
ones conduct)
b. Special Relationships
(special dependency, working relationship, joint venturer)
c. Voluntary assumption of duty
i. Must rescue in a reasonable manner
ii. If have special skill set, standard of care is same of a
person with same skill set
d. Innocent prior conduct
i. Imposed a duty where a partys non-negligent (innocent)
conduct has placed a person in peril.

Elle Klein Torts Walker Smith Fall 2015

e. Reliance on gratuitous promise

f. Intentional Prevention of Aid
g. Statutes
h. Others
2) Owner/Occupiers of Land
1. Analyze under the trichotomy (Trespassers, Invitees, Licensees)
a. Trespassers: no authority to enter, no permission, no invitation
i. Duty owed = not to injure willfully, wantonly, or through
gross negligence
ii. Artificial condition
iii. Risk of serious injury
iv. Owner has to know of the condition
1. No duty to undiscovered trespassers
b. Licensee: Duty owed = not to injure willifully, wantonly, or
through gross negligence. In cases where the owner has actual
knowledge of danger, there is a duty to warn or to make the
dangerous condition safe
i. They are not owed a duty of reasonable care. The land
possessor must warn them of hidden danger.
c. Invitee: on premises for financial benefit of the owner (or land
open to the public at large)
i. Owner responsible for dangerous conditions that the
owner should or has reason to know of.
1. Did the take affirmative steps to discover
dangers?
2. Did the know or should have known about the
danger on the property?
d. Attractive Nuisance Doctrine:
i. Owner/occupier owes duty to trespassing children as if
they were invitees
ii. If something is generally manmade that attracts children
to the land where there is a risk of harm, then the has a
duty of care to get ride of unsafe condition or protect
children.
iii. In order for the child to recover, the must be able to
show that they simply did not understand the risk
involved in the dangerous situation.
3) Limited Duty Rules regarding type of harm
1. Emotional harm without Physical Injury
a. Impact Rule: allow recovery for the slightest touch as long as
there was some impact whatsoever.
b. Fear for ones own being: recover for pure emotional distress if
the was in the foreseeable zone of physical danger but escape
without physical harm. zone = foreseeable risk of injury
c. Fear for physical well-being of another: Recover if was in the
zone of physical danger and not harmed physically but saw a
close relative injured
2. Bystander Emotional Harm
a. Elements:
i. Bystander must be closely related to victim
ii. Emotional Injury must be caused by the
contemporaneous sensory perception of the even or
arriving soon after the substantial injury occurred, but

Elle Klein Torts Walker Smith Fall 2015

before any substantial change has occurred in the victims

condition or location (aka: bystander was there)
iii. Bystander must have suffered serious emotional injury
4) Economic Losses
1. Loss unaccompanied by physical injury to person or property
2. Courts generally hold that there is no duty to protect against negligent
interference with purely economic interest but there are narrow
exceptions:
a. Special relationships innocent third parties who suffered purely
economic losses at the hands of the negligent s with whom no
privity (direct relationship) existed
b. Private actions for public nuisance (oil spill & fisherman)
c. An identifiable class of s must be particularly foreseeable in
terms of the type of persons comprising the class, the certainty
or predictability of their presence, the approximate number of
those in class, as well as the type of economic expectations
disrupted.
5) Loss of Consortium
1. loss of services, companionship, sexual relations, conversations can
be husband or wifes claim. Children can now bring the claim. Parents
can bring for loss of child.
a. Unmarried cohabitants are usually not covered
6) Duty to 3rd parties:
1. Duty to protect 3rd party:
a. If theres a foreseeable risk that a is going to be injured by a
party with whom a professional has a special relationship and
the professional has explicit reason to know that the victim is
actually in danger according to their special knowledge, then
there is a duty to exercise reasonable care to protect that third
person.
i. Elements:
1. Professional relationship with person whose
conduct needs to be controlled
2. Victim is readily foreseeable and identifiable
3. Foreseeable that victim will actually be harmed
4. Professional has special knowledge
ii. Can protect by:
1. Warning the party at risk
2. Restraining violent party
2. Duty to protect against Sexual Abuse
a. Failure to protect when family members are being molested
3. Duty to Protect 3rd parties against criminal activities
a. Where criminal acts are foreseeable & a special relationship is
created
b. Under the totality of the circumstances
c. Foreseeable risk duty to protect or warn
E. BREACH
a. Foreseeable risk of harm & unreasonable conduct in light of those risks
b. Standards of care
1) Reasonable Person Standard
1. Objective
2. Reasonably prudent person under the same or similar circumstances
3. Error in judgment is not conclusive of proof of breach

Elle Klein Torts Walker Smith Fall 2015

4. Assumed to have the relevant physical disabilities of that party but

mentally handicapped are analyzed as regular reasonable person
2) Mentally handicapped analyzed as regular reasonable person
3) Physically handicapped reasonable person with similar disabilities
4) Reasonable Child Standard
1. Reasonable child: of like age, intelligence, maturity, and experience
2. Exceptions for certain activities:
a. Inherently dangerous activities
b. Adult activities
5) Statutory Standard of Care (Negligence Per Se)
1. Where a statute exists to govern behavior provides the requisite
standard of care
2. Statute must be designed to prevent the type of harm that has
occurred
3. Statute must protect the class of persons that have been harmed
4. Statutory violation creates a presumption of breach, but may try to
show reasonable care notwithstanding statutory violation
5. Excuses:
a. Incapacity
b. No knowledge of occasion for compliance when believes he
is complying but for unknown reasons it turns out that the was
not complying
c. Inability after reasonable diligence to comply
d. Emergency
e. Compliance involves greater risk
f. Reasonableness under all the circumstances.
6) Sudden Emergency Doctrine (J.I.)
1. Would a reasonable person have acted the same way.
2. If yes, they did not breach.
c. Developing the Reasonable Standard
1) Balancing Risk v. Untaken Precautions (B < PL)
1. Learned Hand Formula
a. A persons conduct lacks reasonable care where the burden to
take a precaution to mitigate harm is less than the probability of
the harm occurring combined with the probable severity of the
harm
b. B < PL balancing of risk and utility. Balancing of the likelihood
of harm and the potential seriousness of the harm against the
burden of taking adequate precautions to prevent them
i. Liability depends on whether the burden (B) is less than
severity (L) multiplied by probability (P)
c. The key question that courts ask is what were the untaken
precautions
2) Custom
1. Can be used to suggest what a reasonable person would do in certain
circumstances
a. Used to determine reasonableness of conduct
2. It can be used in negligence cases in two ways:
a. By the to show that the deviation from custom as evidence
of the s unreasonable conduct
b. By the introducing evidence of customary practice in order to
shower that the s compliance with custom demonstrates
reasonableness
3. Role of custom evidence

Elle Klein Torts Walker Smith Fall 2015

a. Alerts the fact-finder to the impact on business institutions of a

finding of negligence
b. Addresses the feasibility and practicality of alternatives
c. Demonstrates the opportunity or lack thereof to learn of other
safeguards
4. Not conclusive in determining if conduct was reasonable
a. Sometimes customs can be unreasonable (getting out of a car
when a train is coming)
5. KEY: community standard we arent going to deviate too far either
wayregardless of its reasonableness
d. Proof of Negligence
1) Circumstantial evidence
1. Evidence from which a reasonable inference can be made
2. Examples: grape cases
3. Burden: has burden of pleading, production, and persuasion unless
res ipsa
2) Res Ipsa Loquitur
1. Form of circumstantial evidence
2. Three elements
a. Accident which produces harm is not one that ordinarily happens
without negligence
b. Instrumentality is under exclusive control of the
i. Restatement gets rid of exclusive control -- needs to
be the responsible cause of the injury, does the have
the power of control and the opportunity to exercise it.
1. Bottle bursting in someones hand, shopkeeper
doesnt necessarily have control of the bottle its
shipped many times, but it originated with the
maker who did have the power of control
c. No contributory negligence by the
3. Covers duty, breach, and causation burden shifts to to prove that
neg was not cause
4. Effects of Res Ipsa Loquitur
a. Raise a rebuttable inference which allows to take case to jury
and thus avoid directed verdict for
5. Shows inference of negligence. Does NOT mean negligence
automatically.
6. Doctrine of respondeat superior can be invoked here
a. Someone in operating room caused accident, we dont know
who respondeat superior allows head doctor to be target of
lawsuit as pet Ybarra
b. Exclusive control = constructive control where instrumentality is
separated.

F. The Standard of Care in Professional Malpractice

a. Custom sets the standard & deviation from the standard constitutes a breach of
duty
b. Two types: Negligence in Medical Malpractice and the doctrine of informed consent
1) Negligent Medical Performance
1. The professional standard of care: a common articulation of the
standard of care for a doctor states that a physician must act with a
degree of care, knowledge, and skill ordinarily possessed and exercised
in similar situations by the average member of the profession
practicing in the field in the relevant geographic location

Elle Klein Torts Walker Smith Fall 2015

a. Same or Similar Locaility rule limits the pool of potential

experts
2. Expert testimony usually has to provide expert testimony to show
both the customary practices and the professional s deviation from
the customary practice.
a. Typically, an EW is sufficient is she has knowledge of the
customary practices I the are of medicine practiced by the in
the relevant geographical locations
2) Informed Consent
1. Whether or not a reasonably prudent patient, fully advised of the
material known risks, would have consented to the suggested
treatment
2. Two standards for what information a physician must disclose to the
patient concerning the medical procedure:
a. Professional Medical Standard: traditional standard must
disclose those risks which a reasonable medical practioner of
like training would disclose under the same or similar
circumstances
b. Lay standard measured by the patients need for information
rather than by a standard of the medical profession. Does not
require expert testimony.
3. List of items requiring disclosure:
a. Diagnosis
b. Nature and purpose of the proposed treatment
c. Risk and consequences of the proposed treatment
d. Probability that the proposed treatment will be successful
e. Feasible alternatives
f. Prognosis if the proposed treatment is not given
4. Timing of consent for surgeries:
a. The surgery, (2) anesthesia; and (3) the hospital procedures

G.Causation (Actual Causation)

a. Causation requires a connection between the s negligent conduct and the s
injuries
b. Two tests: but for test & substantial factor test
c. But-for test but for the s action the harm would not have occurred
d. Substantial Factor test -- s negligent conduct was a substantial factor in
contributing to the s injuries
1) Case where two (or more) defendants each contributed to the harm
enough to bind both s
2) Establish causation by a preponderance of the evidence
1. Evidence eyewitness, expert testimony, circumstantial evidence
e. Joint & Several Liability
1) Where two or more are substantial factors, each can be held responsible
for paying the entire judgment award to the instead of being liable for
only a proportionate share
2) Three categories:
1. True joint torts = act together & cause harm (complicity is key)
2. Vicarious Liability
3. Independent tortfeasors = s act independently but nonetheless
cause one harm
f. Alternative Liability
1) Summers v. Tice

Elle Klein Torts Walker Smith Fall 2015

2) Where theres harm, and its obvious that only one tortfeasor caused the
harm, but doesnt know which tortfeasor caused the harm burden shifts
to the to prove who caused the harm
1. If s can prove who actually caused harm then is liable for
damages
2. If s can NOT prove who caused the harm hold jointly liable for harm
g. Market Share Liability (Product Liability)
1) Pertains to suppliers of defective products where the cannot prove which
brand of the product she used
2) Where many tortfeasor product manufacturers develop a negligent product,
and the product causes harm, but where the cant determine which
manufacturer actually made the product that caused the harm: several
liability (NOT joint) 3 steps
1. may attempt to prove that they were not part of the market at all
(didnt market to anyone)
2. IF cant prove owe same % of market share as every other
3. Burden shifts to to prove that they had less of a market share than
everyone else
3) Hymowitz v. Eli Lilly & Co. precluded the manufacturer from proving
they could not have supplied the drug to a particular
1. Because liability is based on the overall risk produced, and not on
causation in a single incident, there should be no exculpation of a
who, although a member of the marker producing DES for pregnancy
use, appears not to have caused a particular plaintiffs injury. It is
merely a windfall for a producer to escape liability solely because it
manufactured a more identifiable pill, or sold only to certain drugstores
2. This is an attempt to impose equitable overall social responsibility
4) Most courts have been disinclined to extend the marker share theory to
products other than DES
5) Public policy deterrence is served by imposing liability on culpable s
even when evidence would often preclude correlating individual
manufacturers with individual victims of the product
h. Daubert Triology (Using scientific and technical evidence to prove causation)
1) Held that the subject of an experts testimony must be scientific
knowledge
2) Factors:
1. Have the conclusions been tested to see if the results can be replicated
or disproven
2. Has the experts scientific conclusions been subject to scrutiny of the
scientific community through peer review or publication
3. What are the known or potential error rates of the scientific technique
or method
4. General acceptance of the conclusions within the relevant scientific
community is permissible, but not a determinative factor

H.Scope of Liability (Proximate Cause)

a. Examines whether the careless conduct of the is sufficiently related to the harm
suffered by the particular to warrant holding the liable.
b. This is drawing arbitrary lines on caustation. Judges/juries know the limits when they
see it and they dont have a set rule
c. Reasons for limiting: avoiding overlap with other systems, preventing one
compenstation from being burdenef for risks more appropriately allocated to others,
and principally to live within the financial resources available
d. The Foresight Test:

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Elle Klein Torts Walker Smith Fall 2015

1) Limits recovery to harms that were foreseeable and natural consequences

of the negligence
2) Ask the following questions:
1. Is there an arguably unforeseeable plaintiff?
a. Can be analyzed as duty also (like Cardozo in Palsgraf)
i. Duty should only be extended to those who could be
reasonably foreseen to be within the scope of danger.
ii. Basically, a relational duty to the world doesnt exist
iii. Andrews dissents and says that people have duties to
society as a whole
2. Are there arguable unforeseeable consequences?
a. Different type of harm than what was foreseen cuts off
liability
b. Extent of harm/specific harm greater than foreseen does not
cut off liability
c. Example: hotel, neck injury from fire alar, not a foreseeable
consequence
3. Is there arguable intervening conduct?
a. Intervening act unforeseeable s liability is cut off
b. Intervening AND superseding acts result foreseeable
liability not cut off
i. If the harm is within the risk, negligently created by the ,
the it is a foreseeable risk and if they fail to mitigate the
harm then will be liable (Failure to place neck braces on
masks)
ii. Superseding = law preempts, trump the original negligent
act and makes the person not liable because it takes the
original actor out of the scope of liability
4. Childs standard childs foreseeability
5. Shifting Responsibility
a. If there is a situation involving the initial negligence of a first
party and the subsequent negligence of another party, then the
question arises whether the responsibility for the harm should
be borne by both parties or entirely shifted to one.
b. Intervening conduct foreseeable but not egregious may
insulate from liability
c. Factors to analyze under:
i. The culpability of the intervener intentional, criminal,
reckless, negligent, or innocent
ii. The competnence and reliability of the person upon whom
reliance is placed
iii. The interveners understanding of facts and situation
iv. The seriousness of the danger
v. The number of persons likely to be at risk of danger
vi. The length of time elapsed between the conduct of the
parties
vii. The likelihood that proper care will or will not be used
viii. The ease with which each of the parties can take
precautions
d. Proximate cause is really just an exercise in time framing.
3) Exceptions to the foresight rule:
1. medical malpractice complications rule
a. Medical malpractice will not be an intervening superseding
cause to the harm because as a matter of public policy the

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Elle Klein Torts Walker Smith Fall 2015

I.

courts have decided that the should have the burden of suing
the medical malpractitioners
b. Rationales:
i. Procedural and fairness grounds
ii. Administrative efficiency dont want to waste time
slowing down the judicial resources
iii. Allows for the victim to not have to deal with the messy
litigation of med mal.
2. eggshell plaintiff rule take the as you find them
a. even though the harm is not foreseeable because you didnt
know that the had ailment, it does not excuse liability
b. Rationale: some harm must be foreseeable, but the extent of
the harm need not be foreseeable for the to recover
3. the rescuer if the creates the situation that invites rescue, they
will be liable for harm to that rescuer
a. Exception: if the rescue is performed recklessly not
foreseeable that rescue would be reckless
b. When a person negligently manages his own person he is liable
for foreseeable consequences, danger invites rescue therefore
rescuers can recover.
4) Suicide Rule
a. Courts are reluctant to find a liable for the s suicide after an
accident which causes physical and emotional distress, but
when the accident causes the to actually become INSANE
courts view this as the accident creating an irresistible impulse
to commit suicide and therefore find proximate causation and
reasonable foreseeability
Damages (nominal, punitive, compensatory)
a. Nominal where liability is established but no actual harm occurred or can be
proven
b. Punitive where the conduct justifies punishment to punish and deter egregious
conduct
1) s conduct is found to demonstrate the requisite higher degree of
culpability above negligence (intentional misconduct, recklessness, or
malice)
2) Juries are allowed to consider:
1. The likelihood at the time that serious harm would arise from the s
misconduct
2. The degree of the s awareness of that misconduct
3. The profitability of the s misconduct
3) State Farm v. Campbell
1. Cited for the single digit ration of punitive damages to compensatory
damges
2. Three guideposts of of punitive damages:
a. The degree of reprehensibility
b. The disparity between the actual or potential harm suffered by
the plaintiff and the punitive damages award
c. The difference between punitive damages awarded by the jury
and the civil penalties authorized or imposed in similar cases
4) Rationals for punitive damages:
1. Relieve the pressures of an overloaded sustem of criminal justice by
providing a civil alternative to criminal prosecution
2. Provides a substitute for violent retaliation against wrongful injury
3. Deterrence

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Elle Klein Torts Walker Smith Fall 2015

4. Makes the take the untaken precaution

5) A s wealth is typically admissiable on the issue of punitive damages
c. Compensatory compensation, indemnity, or restitution for harm sustained by
him
1) Property damages diminished market value, replacement value, rental
value to compensate unauthorized use
2) Personal injury damages
1. Proved by reasonable certainty
2. Past earnings and future earning capacity losses
a. Can the prove lost income including pay raises?
b. Can the prove impaired future earning capacity?
i. Is there proof of the s specific ability, skills, and aptitude
for a career path prior to the injury?
ii. Is there educational attainment and employment history
relevant to this determination?
iii. The s occupational abilities, industriousness, work
habits, and experiences are relevant
3. Past and future medical expenses
i. Can be payments for physicians, hospitals, nursing care,
physical therapy, etc.
ii. Can recover anticipated medical expenses
1. Subject to judicial reduction (policy rationale to
avoid windfall by for early payment that he may
invest or derive other benefit from)
4. Past and future pain and sufering
a. Does injury include mental distress over an injury and any
disfigurement?
b. Emotional distress: used commonly where mental suffering is
the major injury
c. Does injury cause loss of enjoyment of life?
i. Requires awareness (ie comatose victims)
d. Loss of consortium the plaintiff should prove the nature of the
relationship before the accident and its impairment after.
e. Does injury cause distress over reduction in life expectancy or
concern over illnesses the victim is at reasonable risk of
incurring due to injury?
f. Lost life expectancy: allow damages for reduced life expectancy
in a rough sense by permitting future lost wages
d. Collateral Source Rule
1) Two rules in one: Its a substantive rule of damages law and a rule of
evidence that preclude proof of collateral payments
2) Subrogation allows the provider to step into the shoes of the injured party
and sue the negligent defendant directly for the benefits paid out.
Generally, not allowed though.
3) Many collateral source providers now include contractual provisions
requiring a reimbursement from the accident victim in the case they obtain
a personal injury settlement
4) Payments to the injured party from a collateral source are not allowed to
diminish damages recoverable by the tortfeasor.
e. Wrongful Death
1) Causal connection must exist. The death must have resulted from a breach
of duty
2) Can the victims estate recover?

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J.

1. The estate is entitled to recover for damages that the decedent

suffered up until his or her death as well as for funeral and burial
expenses.
2. Whether an estate can recover for loss of enjoyment of life or for
shortened life expectancy are up in the air.
3) What could the victim have recovered if he had lived?
1. Losses before death: medical expenses, earnings lost, etc
2. Losses after death: pecuniary contributions
4) What could the relatives recover had he lived?
1. Loss of consortium nonpecuniary damages
2. Spouses, children, and in some states domestic partners are typically
recognized as the survivor class. Sometimes parents/siblings id there is
no other survivor class.
a. Limiting economic recovery to economic dependency creates
gross inadequacies where the decedent was as non-working
spouse, child, or elderly person.
Defenses & Immunities
a. Legal doctrines that bar/limit a s recovery
b. Contributory negligence
1) Complete bar to recovery; TODAY: almost universally converted to
comparative negligence by statute or judicial ruling
2) Danger is foreseeable fails to see specific risk = CN
3) Exceptions
1. Only allowed the defense where the s conduct was negligent, if it
was reckless then it did not bar the from recovery
2. Last chance rule: a could still recover against negligent upon proof
that the was more culpable because he had the last opportunity to
prevent the harm
3. CN could not be permitted as a defense where the s fault is based on
statute (child labor laws)
c. Comparative Fault (shares responsibility between and )
1) Pure comparative fault (Jxdn)
1. Negligent recovers some damages from negligent , no matter hoe
much at fault is even if only recovers 2% of the damages
2) Modified Comparative Fault (based on Jxdn)
1. Recovery is barred if s fault is greater than s or as great as the s
depending on the jurisdiction
a. If is 40% at fault recovers 60% of damages from
b. If is 60% at fault recovers nothing
c. Some jurisidicitons: if 50-50, can still recover
2. Where 2 s and each is less than 50%, the s are usually added
together to create one fault percentage
3. When 2 s and one is insolvent some states say there is no joint and
several liability and if one has no money, there is no recovery. Other
states say that joint and several liability is okay and the can recover
from one and make the go after the insolvent one for the recovery
3) **after being harmed, s must take reasonable steps to avoid exacerbating
their injuries**
4) Assumption of Risk (implied and express)
1. Express Assumption of Risk gives explicit written or oral permission
to release another party from an obligation of reasonable care
a. Limitations:
i. Language of the waiver must be clear and unambiguous

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ii. Courts look at the context of the activity to determine

whether a waiver may be void against public policy
1. Factors to determine if an exculpatory clause in a K
is invalid:
a. It concerns a business of a type generally
thought suitbale for public regulation
b. The party seeking exculpation is engaged in
performing a serious of great importance to
the public
c. The party holds himself out as willing to
perform this service for any member of the
public who seeks it
d. As a result of the essential nature of the
service, in the economic setting of the
transaction, the party invoking exculpation
possesses a decisive advantage of
bargaining strength against any member of
the public who uses his services.
iii. Courts can also limit the effect of exculpatory clauses to
unreasonable conduct on the part of the
iv. General rule that recreational activities do not constitute
a public interest and that preinjury releases for
recreational activates cannot be invalidated under the
public interest exceptions
2. Implied Assumption of Risk inferred from the s conduct and
circumstances
a. Three-part test:
i. Knowledge of the risk
ii. Appreciation of the risk
iii. Voluntary exposure of the risk
b. bears the burden of proof
c. Subjective standard Courts look at the s state of mind
d. Primary (Implied) Assumption of Risk
i. A party enters into a relationship with another, knowing
and expecting that the other person will not offer
protection from certain risks arising out of the relationship
1. Example: patron at a baseball game getting hit by
a fly ball
2. No duty analysis
e. Secondary (Implied) Assumption of Risk
i. Merged into comparative fault scheme jury determines
relative responsibility of the to parties and apportions
damages thusly
ii. Whether primary or secondary turns on the nature of the
activity and whether s conduct breach a legal duty of
care to the
iii. can not bar liability of reckless
3. Firefighters Rule: limited duty rule. Barred from bringing action.
d. Immunities
1) Charitable immunity abolished in most jurisdictions
2) Spousal immunity most have abolished
3) Parent-child immunity does not bar property or economic torts, but
preclude intentional torts such as battery/assault and liability for PI via
negligence

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4) Governmental/Sovereign Immunity
5) Statute of Limitations
1. Accrual: limitation period begins to run when the claim accrues
a. Usually when all the facts essential to a s claim have occurred.
(I.e. when discovered or should have reasonably discovered
the injury) subjective and objective components
b. Injury has three elements: 1) harm; 2) causation and; 3) tortious
conduct
i. Each of these are necessary for accrual
2. Discovery: may postpone the commencement of the limitation period
until the claimant actually knows or reasonably should know of the
existence of the claim
a. Three areas for discovery:
i. The occurrence of the harm
ii. The fact that the harm results from a wrongful act of the
iii. The identity of the person committing the wrongful act
K. Intentional Torts
a. Act + intent + causation
b. Intent a person acts with intent to produce a consequence if:
1. A person has purpose/desire of producing that consequence
2. Person knows to a substantial certainty that the consequence will
occur from his conduct
2) Intent is measures by the subjective standard (s state of mind)
1. Includes the mental disabilities unlike in negligence
3) Two prongs:
1. Intent to cause the act
2. Intent to cause the resulting injury
4) Malice not necessary
5) Three components to intent
1. State of mind that occurs at the time of the event
2. Consequences of the act, not necessarily the act itself
3. Have in mind purpose or desire to bring about consequence, but also
have belief that damage is substantially certain to occur
6) Transferred Intent any tort can be transferred from:
1. Tort to tort
2. Person to person
c. Scope of Liability courts are less willing to cut off liability due to intent
d. Battery
1) Intentional contact that is harmful or offensive to a person
2) Causation
1. Must be with s body or something closely associated
2. Offensive test reasonable
3. must know that contact is substantially likely to occur
3) Interest in physical integrity (freedom from harmful contact) and dignitary
interest (freedom from offensive bodily contact)
4) Hitting, cutting hair, offensive contact (smoke particles, sound waves)
e. Assault
1) Reasonable apprehension
2) Of a harmful or offensive contact
3) must have intent to cause apprehension of a harmful or offensive contact
4) Fear not necessary
5) Was it just a threat? Has to be more. Words alone dont = assault. Must be
reasonable apprehension
6) Was there reasonable apprehension of imminent harmful contact?

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7) Does it appear that there will be no significant delay?

f. IIED Intentional Infliction of Emotional Distress
1) Elements:
1. Intentional or reckless conduct
2. That the conduct was so outrageous in character and so extreme in
degree as to go beyond all possible bound of decency and is to be
regarded as atrocious and utterly intolerable in a civilized community;
and
3. That the conduct caused emotional distress so severe that no
reasonable person should be expected to endure it
2) Judged by community standards
3) Outrageous conduct:
1. Power differentials: 1) abuses of authority and 2) knows the is
particularly susceptible
a. Lowers the behaviors necessary for IIED
g. False imprisonment
1) Elements
1. Wilful detention
2. Performed without consent
3. And without the authority of the law
2) Shopkeepers privilege: when a person reasonably believes that another has
stolen or is attempting to steal property, that person has legal justification
to detain the other in a reasonable manner and for a reasonable time to
investigate ownership of the property
1. Must be done with a reasonable belief and reasonable manner
h. Trespass to Chattels and conversion
1) Trespass = intentional use or intermeddling with the chattel in possession of
another
1. Damage, shorter period of time
2) Conversion = intentional exercise of dominion or control over a chattel
which so seriously interferes with the right of another to control it that the
actor may justly be required to pay the other the full value of the chattel
1. Material alteration, intentional destruction
3) Factors to consider when determining chattel v. trespass
1. The extent and duration of the actors exercise of the dominion or
control
2. The actors intent to assert a right in fact inconsistent with the others
right of control
3. The actors good faith
4. The extent and duration of the resulting interference with the others
right of control
5. The harm done to the chattel
6. The inconvenience and expense caused to the other
L. Defenses & Privileges to Intentional Torts
a. Consent
1) Expressed words
2) Implied acts/customs
3) Exceptions (vitiation of defense) cant give consent when:
1. Underage
2. Drunk
3. Fraud, mistake, duress
4. Developmental disorder
5. Mistaken consent consented to one thing but not the other
b. Self-Defense complete defense when:

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1) Elements:
1. used reasonable force
2. reasonably believed necessary (ojective and subjective standard)
3. to prevent immediate harm
2) Exception:
1. If started the fight
2. Aggressor withdrew
c. Defense of others:
1) used reasonable force
2) Danger has to be actual (not just reasonable)
d. Defense of Property
1) Reasonable force
2) Deadly force NEVER
3) Traps Never
e. Necessity incomplete privledge
1) Three elements:
1. Reasonable belief of imminent harm to or others
2. Can only prevent harmful actors as long as necessary to get person to
proper authorities
3. Can only restrain using least restrictive means necessary
2) Damages only those that you actually caused

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