Intentional Torts

1. Battery:
a. Elements
i. Volitional act
ii. Intent (intended to cause)
1. Purpose or
2. Substantial Certainty
a. Boy pulls chair from under woman [Garratt]
b. An insane person whose mind is capable of forming intent will be liable
for intentional torts if the other elements are met [McGuire]
c. Mistake as to target does not negate intent [Ranson] (e.g., wrong kind of
animal, wrong person)
d. Intent may be transferred when it is intent to assault or batter a person
[Talmage]
e. Voluntary intoxication does not negate intent [p.29 note 7]
iii. Contact
iv. Harmful or Offensive (to person of ordinary sensibilities) Contact
a. Mathematician gets plate snatched away from him at a luncheon and
being called offensive names [Wallace]
2. OR Apprehension of harmful or offensive contact
3. With Plaintiff’s person
a. Including things attached to plaintiff, in plaintiff’s possession or in
possession, or in which P is located [extended person rule] [Fisher]
4. And which causes such contact
a. Defendant responsible for all harm caused, even if unforeseeable [p. 36
notes 1 & 2]
Tort is complete upon contact.
2. Assault:
a. Elements
i. Volitional act (not while sleeping or having seizure)
ii. Intent (intended to cause)
1. Purpose or
2. Substantial certainty
a. A child might be capable of intent depending on age [Garratt]
b. An insane person whose mind is capable of forming intent will be liable
for intentional torts if the other elements are met. [McGuire]
c. Mistake as to target does not negate intent [Ranson] (e.g., wrong kind of
animal, wrong person)
d. Intent may be transferred when it is intent to assault or batter a person
[Talmage]
e. Voluntary intoxication does not negate intent [p.29 note 7]
iii. Harmful (injury) or offensive (to person of ordinary sensibilities) contact [Wallace]
1. OR
iv. Apprehension of harmful or offensive contact
1. Expectation, not fear
2. Imminent contact, not next week or in an hour
3. Fear not required but will increase damages
 4. Apparent ability required [question for jury - Western Union]
v. With the plaintiff’s person
1. Including things attached to plaintiff, in plaintiff’s possession, or in which P is
located [extended person rule][Fisher]
vi. And which causes such apprehension
1. Plaintiff is liable for all harm caused to plaintiff, even unforeseeable harm, by the
tort, e.g., heart attack, injury from fall if plaintiff faints, etc.
Tort is complete upon such apprehension.
3. False Imprisonment:
a. Elements
i. Volitional Act (not while sleeping or having seizure)
ii. Intent (intended to cause)
1. Purpose or
2. Substantial Certainty
a. A child might be capable of intent depending on age [Garratt]
b. An insane person whose mind is capable of forming intent will be liable
for intentional torts if the other elements are met. [McGuire]
c. Mistake as to target does not negate intent [Ranson] (e.g., wrong kind of
animal, wrong person)
d. Intent may be transferred when it is intent to assault or batter a person
[Talmage]
e. Voluntary intoxication does not negate intent [p.29 note 7]
iii. Plaintiff to be confined to a bounded area
1. How big an area? We don’t know
a. Woman not allowed to get to land without a boat
2. Physical restraint not necessary; threat of harm sufficient; threat of harm to
another might be sufficient to confine
3. Abuse of authority sufficient to confine
4. Threat of harm to or deprivation of chattel might be enough to confine
5. No apparent risk of harm in escape.
iv. And which causes Plaintiff to be confined to a bounded area
1. Plaintiff must be aware.
2. Or (in some states and under Rest. 3d) Plaintiff must be harmed
3. Defendant responsible for all harm caused, even if unforeseeable
4. If injured escaping, no FI, but other c/a (maybe battery or negligence) [p.43 note
7]
Tort is complete upon confinement with awareness OR confinement with harm.
4. Intentional Infliction of Emotional Distress
Why the different paradigm? Dignity v. Emotions.
a. Elements
i. Volitional Act or series of acts
1. Invasion of conscience
ii. Intentional or reckless conduct
1. Purpose or
2. Substantial Certainty
a. Siliznoff was put under extreme duress by debt collectors threatening
harm that was not immediate but compelled action or money
iii. Conduct must be extreme AND outrageous
 1. “So outrageous in character, so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized society” [Harris]
2. Vulnerability of victim is a factor and tortfeasor is a factor, [e.g., gunnery sergeant
or sweet little old lady [Harris]
3. Nature of relationship between victim and tortfeasor is a factor, e.g., intimate
relationship, professional relationship, as with a physician or therapist.
4. Threats of future physical violence might be sufficient [Siliznoff]
5. Harm to a family member in the presence of Plaintiff might be sufficient if
tortfeasor knows of family member’s presence and knows of relationship [Taylor]
iv. Causation
v. Severe Emotional Distress
1. A severely disabling emotional response by plaintiff
2. Where plaintiff has a pre-existing condition it must be exacerbated by an
increment that qualifies as severe [Harris]
a. Man with stuttering problem sues supervisor for making fun of him, no
way of telling how severe his stuttering worsened. The allegations could
not be proved.
5. Trespass to Land
a. Elements
i. Volitional Act (not while sleeping or having seizure)
ii. Intended to Cause
iii. Intrusion onto Real Property by person or tangible substance (physical invasion)
1. Not vibration [that’s absolute liability or nuisance]
2. Not odor or noise [that’s nuisance]
3. Defendant need not know that land is the land of another
iv. That interferes with the Right to Exclusive Possession of the Land
1. The interference is the injury, so separate damages need not be proved, but if
they are present they may be recovered.
6. Trespass to Chattels
a. Volitional Act (not while sleeping or having a seizure)
b. Intended to Cause
c. Dispossession of the chattel, damage to the chattel, or use of the chattel by one other than the
rightful possessor and diminution of value
i. Mistake is no defense here. Defendant liable even if she thought the chattel was hers.
1. Trench coat example.
d. That interferes with plaintiff’s Right to Exclusive Possession of the Chattel
i. The interference is the injury, so separate damages need not be proved, but if they are
present they may be recovered. Cost of repair, fair rental value represent the usual
damages.
7. Conversion
a. Volitional Act (not while sleeping or having seizure
b. Intended to Cause
c. Dispossession of the chattel, destruction or major damage to the chattel, or use of the chattel by
one other than the rightful possessor.
i. Mistake is no defense here. Defendant liable even if she thought the chattel was hers.
d. That interferes with the Right to Exclusive Possession of the Chattel by
i. PERMANENT DISPOSSESSION
 or
ii. SUBSTANTIAL DESTRUCTION
Such as would warrant payment by defendant of the full value of the chattel to the rightful
possessor
- In close cases factors page 91 top are applied to distinguish conversion from trespass to
chattels
- Damages are measured by the value of the chattel, along with incidental damages such
as cost of rental of replacement until full value paid.
Affirmative Defenses to Intentional Torts
Must be pleaded and proved by defendant FRCP 8(c) (most of them are unenumerated)
Defeat plaintiff’s prima facie case if jury believes both
May be subject of motion on pleadings and dispositive motions if requirements are met.
1. Consent
a. Generally
i. Must be the act of a rational, competent person; intoxication, insanity, and minority may
invalidate consent [page 105 note 11; re minority; 109 note 7 re intoxication]
ii. Scope of consent may not be exceeded [Mohr; Hackbart]
iii. Invalid if obtained by fraud, misrepresentation, or silence concerning a matter material to
the consent, or as to which there is a legal duty to disclose [DeMay][p.107 note 2; note 3
voluntary sex with partner who fails to disclose STD infection example.] In such cases
we say that consent has been vitiated by defendant’s failure to disclose facts known to
the defendant that would be material to plaintiff’s consent.
iv. Consent to illegal acts [e.g. agreement to fight[ MAY OR MAY NOT be good defense -
state by state [pg 109 note 8]
b. Express Consent
i. A clear expression, in words, of specific content to contact, confinement, or other
conduct by defendant that would otherwise be tortious
ii. Required for medical treatment
iii. Scope of consent may not be exceeded; if exceeded, conduct is tortious [Mohr]
iv. Exceptions in medical emergencies [page 103, note 4, four prong test]
v. Invalid if obtained by fraud or misrepresentation [Demay; p. 107 note 2-3]
c. Apparent Consent
d. Implied Consent
2. Self Defense
3. Defense of Others
4. Defense of Property
5. Recovery of Property
6. Shopkeeper’s Privilege
7. Necessity
8. Authority of Law and Discipline
9. Justification

Standard of Review for a negligence claim:

- Plaintiff must establish that defendant owed a duty of care. Defendant is entitled judgment as a matter
of law if the plaintiff fails to establish a prima facie case of negligence, or under no reasonable
evidence could a jury find in favor of the plaintiff. Disputed issues of foreseeability and proximate cause
involve factual determinations that must be submitted to the JURY.
Negligence- Breach of Duty in fact caused the harm
1) Duty
a) General Duty - runs to whom?
i) Reasonable Person under all the circumstances
(1) Duty is a matter of law for the court, generally.
ii) There is always a general duty under all circumstances.
iii) Duty needs to have content, specific to the facts of this case.
iv) Risk: Likelihood of harm and severity of harm considered together (severity will not
change the likelihood of harm.) (Hand formula)
(1) Likelihood of harm to happen?
(2) Severity of harm high?
(3) “Cost” of Avoidance?
(a) Social cost: Public good is more important than the safety of an individual.
(i) Too much safety is too expensive. Social enterprise would be
taken away.
(ii) HYPO: Davison v. Snohomish - Although roads must be built and
maintained by municipalities, a municipality is not liable for
negligence for failing to provide the same degree of protection on
bridges as is afforded on roads.
(b) Plaintiff will usually increase the cost while defendant will decrease the
cost of avoidance (minimization).
v) Thus, as the risk grows greater, so does the duty, because the risk to be perceived
defines the duty that must be undertaken. Ordinary care will require more vigilance as
the circumstances change.
b) Cases
i) What are the circumstances under this case?
ii) Lubitz v. Wells: It takes more energy and work to hurt someone with a golf club v. a shot
gun. The breach of the dad’s duty of reasonable if he leaves a gun around vs. golf club
rises significantly.
iii) Blyth v. Birmingham Waterworks Co. - They have no duty to know that they didn’t dig the
pipe down far enough because they were installing the water pipes for the very first time.
iv) Krayenbuhl: LH + SH of leaving a railroad turntable unlocked is high (kids could get foot
caught when playing in this area) and outweighs the cost of prevention (putting a
functional lock on the turntable and keeping it locked)
v) Davison v. Snohomish County- LH + SH from cars falling off road to due to inadequate
guardrail is high (could cause serious bodily injury) but does not outweigh the cost of
prevention (there existed at the time of the case no 100% way from keeping cars on
road)--therefore no duty
vi) U.S. v. Carroll Towing Co.- LH + SH from leaving a barge unattended (barge could come
loose from moor lines and collide with other ships) is greater then the cost of prevention
(keeping someone on the ship at all times)
c) Negligence is relative.
i) The duty runs from this defendant to the plaintiff.
ii) Foreseeability
iii) “Eye of ORDINARY vigilance”
(1) Does not require to see into the future
 (2) Opposite of hindsight bias.
(3) Separate from what is imaginable vs. ordinary vigilance (rational tort law)
iv) HYPO: Cardozo Opinion from Palsgraf - A defendant is only liable for negligence if he
owes a legal duty to the plaintiff and breaches that duty, and he the resulting harm was
foreseeable. Mrs. Palsgraf was not near the train, she was waiting on the platform very
far away. It was not possible negligence by the railroad.
STANDARD OF CARE
d) Objective Standard of care for an Individual
i) Reasonably prudent person would under all the circumstances
(1) Being less intelligence does not excuse the defendant
ii) Duty to find out
(1) Defendant has a duty to find out if he moves to a new place or does not know the
standard of care.
iii) Superior/Inferior Ability
(1) Is no excuse for deviating from the objective standard of care set by society. If
you have superior intelligence, the court will consider that and hold you to a
higher standard.
iv) Significance of Custom
(1) Custom is not conclusive on this element, it merely offers evidence which may be
taken into consideration by the court in applying the reasonable person standard.
The fact finder could decide that industry custom is unreasonable.
e) Cases
i) Vaughan v. Menlove- LH + SH caused by putting a chimney through a hay rick (caused
fire to neighbors property) outweigh the cost of prevention (to put chimney elsewhere or
closer to D’s property). This gives rise to a duty to exercise reasonable care. D did not
act as “a reasonably prudent person” would and is evidenced through his words “I’ll take
my chances”.
ii) Delair v. McAdoo- LH + SH caused by driving car with defective tires (could cause driver
to lose control) outweighs the cost of prevention (checking tires before driving). This
gives rise to a duty to exercise reasonable care. “A reasonably prudent person” would
probably not check their tires every single time they drove their car.
iii) Trimarco v. Klein- LH + SH that glass shower door would shatter is great and outweighs
the cost of prevention (putting up door made of tempered glass or plastic). This gives
rise to a duty to exercise reasonable care. A reasonable prudent person, according to
the court, would follow the custom of putting up tempered glass door. (However, this is
not binding evidence!!)
iv) Cordas v. Peerless Transp. Co.- LH + SH from man jumping out of taxi is high (taxi could
lose control and hit P) and outweighs the cost of prevention (staying in the cab).
However, a “reasonably prudent person” would not stay in a cab when they had a gun
pointed to their head.
f) Standards of Conduct: Fine Tuning Rules
i) Emergency
(1) Cab driver negligently runs over lady with baby because a guy was threatening to
kill him, minor damages to the couple suing. Emergency excuse for his
negligence act because he could not be a reasonably safe person in that act.
ii) Physical Infirmity
(1) Blind guy gets sued for knocking over old guy. Duty of a reasonable blind person
would be to give notice to other people by using a cane. He did not have a duty
to use reasonable care walking to the bathroom in such a short distance to use
his cane.
 iii) Mental Infirmity
(1) Temporary insanity: held to same standard of care as a “normal person”
(2) Irrelevant-- same standard of care: “what a reasonable prudent person would do
under the circumstances”
1. Exception (rarely used): applies when a person is suddenly and without
forewarning struck with a condition that causes injury to another
Cases:
1. Roberts v. Louisiana- A reasonably prudent person who was blind would have also like
the D walked to the bathroom without the help of his cane (since D was familiar with the
area)
2. Robinson v. Lindsay- Held that child operating snowmobile should be held to same
standard as adult to protect society (they pose as great a risk as adults do and should
not be held to lessor standard)
3. Breunig v. American Family- Said that a sudden mental incapacity is a defense for
negligence. Insanity is not considered here → insane people are held to the reasonably
prudent person standard; exception applies here where a person is suddenly and
without forewarning struck with a condition that causes injury to another
iv) Children
(1) Kids are held to an adult standard if they are operating a vehicle that is inherently
a risk.
(2) Child standard: duty of a child is held to another child of the same, age, and
reasonableness.
(3) Minimum age for capacity to be negligence; 5 years old and older.
g) Standards of Professionals
(1) Formula (objective test): A reasonably prudent person who is a ______ (doctor,
pilot, lawyer, etc) must:
(a) possess the skill, knowledge, training, and ability of an ordinary
professional/ specialist with good standing in that profession
(b) ordinary- more than a person who has no idea how to ___(practice
medicine, fly, be a lawyer, etc.) but less than an expert
(2) In light of this skill, knowledge, training, and ability, the professional must
exercise reasonable care while performing his/her job.
(3) Duty- in professional situation a duty is not created because of the risk but of the
relationship. It is the relationship which makes up the duty!
(4) Error in Judgment- a mere error in judgment does not necessarily mean that one
is negligent
a. Cases:
1. Heath v. Swift Wings- Said that an objective test must be used to test
what a reasonably prudent pilot who acts with the skill, training, and
knowledge of an ordinary pilot would have done
(5) Note: when in practice, always have a XT and XW
(a) Expert Witness: Someone who has knowledge and must investigate this
incident
(b) Expert Testimony: Qualified expert testimony must be relevant and based
in appropriate sources and facts.
ii) Industry Custom: Anyone working in that industry, they are charged with knowledge
even if they do not know.
(1) HYPO: Glass in the bathroom door breaks as plaintiff was getting out of shower.
Sues landlord, claims the safety standards have changed and there is a
foreseeable risk of having glass in the bathroom. Should have known.
 iii) Professional Standard of Care for Lawyers:
a. Elements-
1. competence- skill, knowledge necessary to be a lawyer
2. must use their professional judgment towards the best interest of the client
3. must exercise reasonable and ordinary care which an ordinary lawyer would use in
this case (remember: mere error in judgment is not malpractice → must be a violation
of reasonable care standard!)
a. Cases:
1. Hodges v. Carter- Said that when attorney’s who follow a practice that has been
done for 20 years and in good faith believe this practice to be valid, they are not to
be held negligent when the practice is deemed invalid for the first time in the state
(and their client loses case because of this)
iv) Doctor’s Medical Standard
(1) National Standard (locality rule for state of Franklin)
(2) Medical Malpractice
(a) Other
(i) Expert Testimony usually required
(ii) Pleadings requirement of the expert testimony
1. Affidavit of merit executed by doctor
a. Affidavit of merit must accompany the complaint
i. A reasonable physician has reviewed the
case. Establishes meritorious claim
(b) Negligent Diagnoses
(i) Negligent Treatment
1. Prescription
2. Surgery
(ii) BUT, sometimes things go badly without negligence, then we go
to informed consent
(c) Informed Consent
(i) Separate independent cause of action of negligence (separate
from intentional torts)
(ii) Fiduciary obligation to informed consent: the relationship of
doctor/patient has trust (duty arises)
1. Duty to disclose MATERIAL FACTS
a. Diagnosis (explain to patient)
b. Treatment Proposed
c. Risks associated with the proposed treatment
d. Prognosis
e. Alternative Treatment options (diagnosis, risks)
f. Continuing obligation (keep the patient posted)
1. Material Fact Standard (who decides what is material?)- what a reasonable
prudent patient would consider is a material fact
2. When there is no negligence, you MUST claim informed
consent
3. Disclosing a risk: Likely severity? Likely Harm? Cost of
avoidance?
(iii) Informed =Duty of the doctor
(iv) Consent= Consent from the patient
 1. Negligence comes in the content provided. Duty is to give
material information to the patient.
(v) EXCEPTION to when a doctor does not have to disclose material
facts:
1. real emergency (blood transfusion; amputation)
2. obvious risk (shot in arm may cause infection)
3. therapeutic privilege (privilege not to disclose a risk to
someone who is operating under some kind of anxiety)
4. incapacity (person in coma)
5. valid waiver
(3) Patient’s Burden of Proof:
a. that D physician failed to inform him adequately of a material risk before
securing his consent to the proposed treatment
b. that if D had been informed of the risks he would not have consented to the
treatments
c. that the adverse consequences that were not made known did in fact occur
and D was injured as a result of submitting to the treatment
Cases:
1. Boyce v. Brown- Medical malpractice case where medical expert testified that
a reasonably prudent doctor would not have taken an X-Ray of P’s leg even
though the expert himself did (stuck to objective test!)
2. Morrison v. MacNamara- Rejected the locality rule
3. Scott v. Bradford- Said that a doctor must disclose enough information to a
patient so the patient is aware of all the relevant risks (informed consent)
4. Moore v. Regents of Calif- Case where patient had a lack of informed
consent in that his leukemia cells were distributed for the doctor’s profitable
use.
v) Rules of Law
(1) Duty is not a set rule, duty is measured by risk of the situation
(a) Pokora v. Wabash Ry. Co.: plaintiff at a railroad crossing with four tracks.
Box car is blocking tracks to the north, he drove slowly ahead reaching
main track and was struck by a train at a speed of 30 mph, rule was to get
out of car and listen to train coming but even if he got out and listened
and got back in the car, it is more dangerous to do so at a 4 track railroad.
2) Breach (of standard care)
a) Negligence Per Se
i) What is it?
(1) Legislative, agencies, statutes...Fixes the legal duty so that violation of the
statute constitutes conclusive evidence of negligence = negligence per se.
(2) All we get from negligence per se is duty and a breach. We still have to prove the
rest of the cause of action.
ii) When does it apply?
(1) Court may decide to adopt a duty of conduct in the statute and apply it to a case
for cause of action of negligence. Duty is usually already imposed.
(a) Is the plaintiff a member of the class the statute was meant to protect?
(b) Is the injury of the type the statute was intended to protect?
iii) What effect does it have?
(1) Binds the jury.
 (2) Court borrows standard from statute to apply it. Duty is usually already imposed.
(3) A speed limit is a statute what is safe and reasonable but there’s always a
general duty to drive safely. The statute gives CONTENT to the duty.
iv) Takeaway: When you use a statute to support a negligence per se claim, you take the
whole section and apply it and use the common law negligence too.
(1) Perry v. S.N. and S.N.: Parents of children bring suit against the people who
witnessed the children being abused by the daycare center for violation of statute
and gross negligence. Plaintiffs should have asked for an exception to the
common law rule for people who witness abuse have a duty to report.
v) EXCEPTION: Excuse
(1) Zeni: lady walks in the street to avoid snowy path on the way to work. College
student drives negligently and hits her. Defendant raises non compliance to a
statute of walking on sidewalk. Court says that is not a defense.
vi) Cases:
(1) Osborne v. McMasters- Drug store liable under NPS for failing to label a bottle of
poison as required by statute.
b) TYPES OF EVIDENCE IN PROVING NEGLIGENCE
i) Proof of Negligence (Class Notes)
(1) 2 proof of causation (Post Hoc v. Propter Hoc)
(a) Common sense
(i) Where the negligence of the defendant greatly multiplies the
chances of the accident to the plaintiff, and is of a character
naturally leading to its occurrences, the mere possibility that it
might have happened without the negligence is not sufficient to
break the chain of cause and effect between the negligence and
the injury.
(b) Uncertainty
(i) Gentry v. Douglas Hereford Ranch, Inc.: Defendant accidentally
discharged rifle onto his wife’s friend while stumbling upon the
stairs in the ranch. Defendants did not know what caused him to
fall. Breach of duty of landowners when they did not make the
stairs safe. No uncertainty it was the stairs that caused him to fall.
Proof of defendant.
(ii) Where the issue is one which lies wholly beyond the range of the
experience or observation of layman and of which they can have
no appreciable knowledge, courts and juries must of necessity
depend upon and accept.
(2) Plaintiff will always have the burden of proof.
(a) Anjou v. Boston Elevated Railway Co.: If defendant (employee) walking
past banana peel and she follows behind, he then failed to inspect
reasonably and make safe. Better that it was an empty platform and the
banana peel is black.
(3) Res Ipsa Loquitur: “the thing speaks for itself”
(a) There must be reasonable evidence of negligence; but where the
(b) Thing is shown to be under management of the defendant of his servants,
and the accident is such as in the ordinary course of things does not
happen if those who have the management use the proper care, it affords
 reasonable evidence, in the absence of explanation by the defendants,
that the accident arose from want of care
(i) Instrumentality of
1. Would not have happened absent some negligence
2. Inst. of harm under “exclusive” control of defendant.
(c) Res Ipsa (plaintiff’s case) brings you to the jury but does not bind the jury.
Commercial Notes:
ii) Direct Evidence- (e.g. produce guy from Publix testifies that he spilled the juice and did
not clean it up)
iii) COMMON SENSE: Circumstantial Evidence- (e.g. Publix has a staff to sweep and they
did not at a particular moment since P was injured; showing a dirty banana peel, stain on
clothing) → this evidence is sometimes more significant than direct evidence!
a. burden of proof- The person who asserts the claim has the burden of proof
by the preponderance of the evidence (more likely than not).
b. Stages:
1. P must put forth prima facie evidence to show that it is more likely
than not that a juror could find for him (direct evidence best used
here)
2. P must now convince the jury (circumstantial evidence best used
here)
Reynolds: lady falls down stairs at the train stations. There was no handrail and there was no
light. Cause in fact of negligence.
iv) Res Ipsa Loquitor (Proof of Negligence)
A. Res Ipsa Defined: Res ipsa is a rule of circumstantial evidence (“the thing speaks for itself”)it asks:
“Who has the duty”. If P can establish a prima facie res ipsa case he need not prove by direct or
other evidence the specific conduct of D which was negligent.
Note: Res ipsa would not be used if there was strong direct or circumstantial evidence to begin
with!!
1. Destruction of Res Ipsa: the more direct evidence you introduce the weaker your RIL
case.
A. Elements Needed to show Res Ipsa:
1. P’s injury must be caused by an instrumentality or condition which was under D’s exclusive
management or control at the relevant time
2. The event in one which ordinarily doesn’t occur unless someone is negligent
3. P did not contribute to the event (e.g. res ipsa applies in single car crash but never in (2) car
crash because of contrib. neg.)
Note: The above elements give rise to show that there was a duty and that a duty was breached
(has nothing to do with causation)
● Above also shifts the burden to D to come forward with evidence
C. Effect of Res Ipsa:
1. may warrant an inference of negligence for jury
2. may raise a presumption of negligence
3. may shift the burden of proof to the defendant
D. Procedural Effect: Once the court determines that P has established a prima facie res ipsa case,
the issue becomes one for the jury to determine whether or not to draw the inference, taking into
consideration D’s contrary evidence (if present)
E. Multiple Defendants: The exclusive control requirement ordinarily precludes RIL to be applied
against multiple D’s
1. Exceptions:
a. Vicarious Liability: RIL may apply (e.g. where hotel is responsible for acts of
employees)
 a. Concert of Action: RIL may possibly arise (e.g. shared responsibility between LL and
T; case where pipe in restaurant fell on customer → the owner, contractor,
maintenance crew may all be D’s) the theory is that one of the (2) or more D’s had to
be responsible for the action which cause the injury
a. Integration of Function: relationships which are distinctively integrated → refer to
Ybarra
A. When an injury occurs with no evidence to point to anyone specific:
1. exclusive control?
2. vicarious liability?
3. concert of action?
4. integration of function?
5. violation of statute?
A. Cases:
1. Byrne v. Boadle- Barrel of flour falling down from window of a flour business is prima facie evidence
of negligence
2. Larson v. St. Francis Hotel- Said that there was no res ipsa case where P was walking by hotel and
was hit by furniture coming out of the window (there was no exclusive control of the furniture!)
(6) Sullivan v. Crabtree - Finding res ipsa does not prevent the jury from finding a D not negligent if the cause
of an accident is unexplained. (truck driver not sure what made him lose control) → refer to [procedural] effects
of res ipsa
3) Causation-in-fact (Actual Cause)
Before the defendant’s conduct can be considered a proximate cause of plaintiff’s injury, it must
first be a cause in fact of the injury
a) “But For” Test
i) An act or omission to act is the cause in fact of an injury when the injury would not have
occurred but for the act
b) Joint Causes - Substantial Factor Test
i) Where several causes commingle and bring about an injury -- and any one alone would
have been sufficient to cause the injury, it is sufficient if the defendant’s conduct was a
“substantial factor” in causing the injury.
(1) Ex: Two fires meet and burn a farm. Either fire alone would have done the
damage without the other. Under the “but for” test, neither was the “cause” since
looking at either fire alone, the loss would have occurred without it. Rather than
reach this result, the courts consider as causes all those things that were a
“substantial factor” in causing injury.
c) Burden of Proof Shifts to Defendant
i) Each tortfeasor responsible for the entire result.
(a) Joint and several: Plaintiff can collect full amount from either defendants,
exclusively, or any combination. NA problem of causation exists where
two or more persons have been negligent, but uncertainty exists as to
which one caused plaintiff’s injury. Under the alternative causes
approach, plaintiff must prove that harm has been caused to him by one
of them (with uncertainty as to which one). The burden of proof then shifts
to defendants, and each must show that his negligence is not the actual
cause.
(b) Concurrent Causes
(i) Not a matter for the plaintiff, they are filed as crossclaims for
contribution.
 1. If there’s more causes than 1, look to each if it was a
substantial factor in causing the harm.
(ii) Summers v. Tice: hunting party, both defendants negligently fired
at a quail and in plaintiff’s direction where he was stuck in eye.
Judgment entered jointly and severally, let the defendants figure
out who’s bullet it was and how to determine contribution.
(2) Enterprise Liability
(a) Hall v. E.I. Du Pont: children injured from blasting caps. They sue one,
but it cannot be determine it was their cap; court held the 6 blasting
companies, and the trade association (which sets the safety standard, for
the associations to follow, by setting the custom of the industry, no
competition would lead to a higher safety standard) that the entire
industry breached a duty, no way of knowing which defendant held
responsible. Joint and several liability.
(b) Sindell v. Abbott Laboratories: plaintiff alleged her mother ingested DES, a
synthetic estrogen, given to mothers at the time to prevent miscarriage but caused
plaintiff to contract cancer. In this case, we don’t have the entire enterprise
before court, but a large market was sufficient for several BUT NOT joint
liability. Defendant 1 owned 45% of the market → 45% damages. Defendant 2
owned 15% market → damages.
(i) From a broader policy, standpoint, defendants are better able to
bear the cost of injury resulting from the manufacture of a
defective product.
d) Sine Qua Non
i) Plaintiff’s burden to establish that the train’s collision was a cause in fact of plaintiff’s
injuries
ii) We are not looking at the sole cause. There has to be a cause in fact.
iii) Perkins v. Texas and New Orleans R. Co.: Plaintiff’s widow of Perkin, seeks damages
for death of husband in car and train accident. As he approached the train tracks, the
warehouse to the right of him was blocking the view. It was plaintiff’s burden to establish
that the train’s collision was a cause in fact of plaintiff’s injuries. If defendant was going
25 mph, he would still hit the the car, even if the car was speeding a little bit.
iv) Common sense rule with cause in fact where causation cannot be quantified.
(1) Quantification is possible but does not displace common sense.
v) How do we manage uncertainty? Minimize the doubt. Possible is not probably
(1) It is not sufficient to create a genuine issue, jury is not going to fact find, that’s
why it is the summary of judgment.
e) Loss of Chance of Survival
i) The breach more likely than not caused the harm. Loss of chance of survival is the
harm.
(1) Herskovitz: man with lung cancer rushed to ER does not get immediate care by
improper diagnosis. It is undisputed that his chance of survival had always been
less than 50% and at 39%. After he walks out of the hospital, he had a 25%
chance. Hospital was already negligent per se for diagnosis. How to assert
claim? Define the damages as the harm. Loss of chance, 100% certainty
that it is a cause in fact.
(2) OUR RULE: Lost chance, more likely than not that this was the causation in fact.
 f) Causation can be proved even when we don’t know precisely how the damage occurred, if there
is sufficiently compelling proof that the agent must have caused the damage somehow.
i) Logic of More Likely Than Not (using statistical evidence)
(1) 10/100,000 -> Occurring naturally v. 21/100,000 -> Enough to show increased
likelihood of injury, but that it is more likely than not caused their injuries
(2) 10/100,000 -> Unexposed v. 19/100,000 -> Exposed
(a) 10:9; more likely than not nature caused your client’s injury. Cause in fact
not established
(3) Daubert v. Merrell Dow Pharmaceuticals: 2 minors bring suit claiming they
suffered limb reduction birth defect. Mother took Bendictin, morning sickness
pilled prescribed to pregnant woman. Causation can be proved even when we
don’t know precisely how the damage occurred, if there is sufficiently compelling
proof that the agent must have caused the damage somehow.
4) Proximate Causation
Why do we need proximate cause?
- We need something to reasonably attach liability and cut it off.
- The point of tort law is a likelihood of something to happen. It does not necessarily have to
happen.
- The burden of conduct is no greater on defendant to protect a remote plaintiff than the next
plaintiff.
a) Direct Cause
Foreseeability
● Cardozo’s View
○ Eye of Vigilance
○ Is the plaintiff foreseeable to the harm? Duty only runs to foreseeable plaintiffs. The duty
is framed immediately before conduct, going forward Palsgraf. The second
unforeseeable plaintiff can recover only if she can establish that a reasonable person
would have foreseen a risk of injury to her in the circumstances, i.e. that she was located
in a foreseeable “zone of danger”
● Andrew’s View: Duty is framed as a social duty. The breach of duty that violates the social
compact. If it causes harm, then presumptively you are responsible for your act. The second
plaintiff may establish the existence of a duty extending from the defendant to her by showing
that the defendant has breached a duty he owed P1. In short, a defendant owes a duty of care
to anyone who suffers injuries as a proximate result of his breach of duty to someone.
○ Exception: Unless it’s highly extraordinary and cuts the cause in fact.
b) Indirect Cause
Intervening Superseding Cause
● At common law
○ The intervening cause is a superseding cause if it is an intentional or criminal act.
● Intervening: chronological fact
○ 1 tortfeasor’s breach, 2nd tortfeasor’s breach causes harm. Is the 2nd liable and relieves
the 1st tortfeasor’s breach.
○ When the 2nd tortfeasor’s negligence is foreseeable and gives rise to actor 1, there can
be no superseding cause.
■ Ex: No safeguard around work site on a busy street, it is foreseeable that there is
a driver that can drive into the worksite on a busy road. Guy driving and had a
heart attack is foreseeable. Both are held liable. (CHECK PG 349)
 ○ EXCEPTION: An act of suicide is not a superseding cause as a matter of law. (but it can
be depending on the facts where jury is to look for whether or not the accident caused
the irresistible impulse for self destruction.)
● Rescue Doctrine extends proximate causation
○ Rescuers are foreseeable
■ Elements:
● Defendant was negligent to the person rescued and such negligence
caused the peril or appearance of peril to the person rescued
● The peril or appearance of peril was imminent
● A reasonably prudent person would have concluded such peril or
appearance existed.
○ Emergency begets the man
○ Rescuer of a rescuer has a claim
○ Most states do not permit recovery by a professional, they are always on duty (cops,
firemen, doctors)
○ Creates plaintiffs
○ Generally, an event of an accident is over when people are back to their normal status.
(left to jury to fact find)
■ Multiple Choice Ex: A and B share a house in Maine. A negligently locks B out of
house in the winter. If B is harmed by the cold, is A liable? Yes, because the cold
is part of the risk.
● Same facts, B is hit by lightning. NO, not within the risk
● Same facts, he gets mugged. Is crime frequent? Yes if it is dangerous, no
if it is in the middle of nowhere.
● Emergency Doctrine
○ Creates defendants
○ Lower standard for ordinary care we hold to defendant
● Public Policy - what should the law be?
○ What policy does the court invoke?
■ Statutes
■ Current status and carnage
■ Long standing criminal sanctions from the legislatures
○ As a matter of policy, we cut off liability to people who are actually exposed to
product. Enright v. Eli Lilly & Co. plaintiff granddaughter suffers from cerebral palsy
when grandmother ingests DES while she was pregnant with her mom in utero.
○ Policy arguments are contests for two things that we would like to have.
○ Our law in Franklin. Kelly v. Guinnell
5) Harm/Damage
a) Harm: What happened in the real world
b) Damage: Recovery

Past Damages Future

Determined at trial Estimated at trial

Medical expenses (known at trial) No Yes

Lost Wages of earning or capacity (for Yes Yes

someone who has never worked)
 Pain and suffering (physical and emotional Yes Yes

Disability Yes Yes

Disfigurement (Can be improved) Yes Yes

For exam purposes:

Describe the injury on the factors of this case.
1. Medical expenses
2. Lost wages or earning capacity
3. Pain and suffering
4. Disability
5. Disigurement
Then go into future damages. This might be different than past damages.

● Collateral
○ Defendant is liable for all damages he has committed
■ If insurance pays, it reduces the defendant’s judgment
■ If the brother pays, this does not reduce amount of damages. It is not collateral
■ Girl scout bake sale- collateral
● Physical Harm to property (OUR RULE) - cost of repair or replace at fair market value.
● Duty to Mitigate
○ Plaintiff who can be improved by surgeries refuses, is taken, she recovers for the bad knee
damage and the 90% knee and for the medical expenses of surgery…
Nominal Damages
● Consist of a small sum of money awarded to a plaintiff in order to vindicate rights, make judgment
available as a matter of record in order to prevent the defendant from acquiring prescriptive rights, and
carry as a part of the costs of action.
● The amount of award, so long as it is trivial, in unimportant.
Compensatory Damages - Focus here for exam
● These are intended to represent the closest financial equivalent of the loss or harm suffered by the
plaintiff, to make the plaintiff whole again, to restore the plaintiff to the position was in before the tort
occurred.
Punitive Damages
● Not property- until they clear into your account
● Not compensatory, for damages to plaintiff
● Nevers comes into pocket of plaintiff
● Meant to punish and deter defendant from doings things like that again
● Financial condition of the defendant is relevant
● Exception: Punitive damages does not apply to estates.
DEFENSES TO NEGLIGENCE
1. Contributory Negligence (not on exam)
a. Last Clear Chance and Ultimate Outcome Charge is the wrong answer on the MBE and on our
exam.
2. Assumption of Risk
The plaintiff may be denied recovery if he assumed the risk of any damages caused by the defendant’s
acts. This assumption may be expressed or implied. To have assumed the risk, either expressly or
impliedly, the plaintiff must have known of the risk and voluntarily assumed it.
Voluntary Assumption of a Known Risk
 a. Implied Assumption of Risk
Distinction between the two “essence of contributory negligence is carelessness; of assumption
of risk, ventureness. The carelessness is the plaintiff’s own safety.
- It is imposed by the court as a matter of law, not assumed by contract
Voluntary Assumption of a Known Risk
■ Knowledge of Risk
■ Voluntary Assumption
■ Certain risks may not be assumed.
● Common carriers and public utilities are not permitted to limit their liability for
personal injury by a disclaimer on (ticket, a posted sign..)
Primary Reasonable Voluntary Assumption of Risk
- Defendant’s affirmative defense is CONVERGED with the plaintiff’s burden of proof for
duty and breach.
- OUR RULE: When a person reasonably assumes the known risk… there is not cut off
for recovery. In those circumstances, the plaintiff may recover 100% [Blackburn]
Secondary Reasonable Voluntary Assumption of Known Risk
- Converges with duty and breach for negligence
Secondary Unreasonable Voluntary Assumption of Known Risk
- Getting in a car with driver is an unreasonable voluntary assumption of known risk.
- Subjective to the comparative fault reduction
- Conceptually it merges with comparative fault because of unreasonable conduct.
b. Express Assumption of Risk
The risk may be assumed by express agreement. Such exculpatory clauses in a contract,
intended to insulate one of the parties from liability resulting from his own negligence, are
closely scrutinized but are generally enforceable. (Not that it is more difficult to uphold such an
exculpatory clause in an adhesion contract)
3. Comparative Negligence
PURE COMPARATIVE NEGLIGENCE - our rule in Franklin
a. The “pure” variety of comparative negligence, adopted in a third of the comparative negligence
states, allows recovery no matter how great plaintiff’s negligence is.
b. Plaintiff recovers unless plaintiff’s negligence is equal OR greater
■ Plaintiff 99%
■ Defendant 1%
c. Anything that looks like modified comparative negligence is the wrong answer on the test. (If
both are 50/50 at fault)
d. Four reasons have been advanced by plaintiff
■ Not everything is indivisible
■ Even if plaintiff is partially at fault
■ Injustice to plaintiff
4. Statute of Limitations
- If defendant neglects to plead S.O.L., case can go forward. Court will not raise on its own
motion.
- It will begin to run when cause of action occurs
- For wrongful death, accrues on date of death
- Survival date, on date of accident
5. Statute of Repose
 - Applicable to buildings
- Big machines (industrial), not motor vehicles.
- They begin to run on 1st delivery of the building or machine to the first purchaser (delivery of
key).
- 10 years, 15 years
- No suit can be brought after the S.O.R. against the manufacturers you can still bring suits just
not original creators.

Writing an Essay for Negligence - Writing a letter to your Senior Partner

Issue: Can plaintiff establish a cause of action (negligence) against defendant.
Rule: For a claim of negligence, it is plaintiff’s burden of proof to establish these elements of negligence: duty, breach,
cause in fact, causation, and damages. (Each element you IRAC, you must use “ON THESE FACTS”
1. DUTY (heavy lifting)
a. Issue: First, transition if there was ordinary care under all these circumstances, on these facts.
b. Rule:
i. Mention Hand Formula
1. Likelihood of harm to happen?
2. Severity of harm high?
a. I.e. risk of harm extremely high.
3. “Cost” of Avoidance?
a. What could defendant have done to lower the risk?
ii. General Duty
c. Argue the defendant’s side as well (if there is one, it does not matter what you think.)
i. The event was extraordinary.
d. Conclusion: Is there a duty?
2. BREACH
a. There might not be heavy lifting here
 b. On these facts of duty, there was a breach.
i. Did the defendant inspect and make safe? Reasonable inspection?
ii. Res Ipsa Loquitur
iii. Inferences
3. CAUSE-IN-FACT
a. The harm would not have occurred BUT FOR defendant’s actions
b. Substantial Factor
c. More likely than not
i. State the obvious
d. Conclusion (apply to the facts)
4. PROXIMATE CAUSE
a. Intervening Superseding Cause?
b. If duty ran to defendant...
i. According to Cardozo… would allow recovery because
ii. According to Andrews.... would allow recovery because
c. If no duty ran to defendant
i. According to Cardozo...he would dismiss plaintiff’s claim
ii. But Andrews might allow recovery.
5. HARM/DAMAGE
a. Harm (what are the injuries)
i. Damage
ii. Start with injury
iii. Apply factors of damages
6. Multiple defendant?
a. Are they all liable? Joint and Several Liability.
i. Did the defendants act in concert
ii. Breached their shared duty
iii. Independent acts of negligence that cause indivisible harm.
1. Impact injury always
b. Each was a substantial factor to the cause of harm
c. Ex; P v. D1, P v. D2, P v. D3
7. Comparative Fault
a. Left for the jury to decide

Joint Tortfeasors
● Three types of factual situations in which joint and several liability usually is imposed.
1. Acting in concert
2. Fail to perform a common duty to the plaintiff
3. Involving defendants who acted independently to cause an indivisible harm
● Joint and Several Liability
○ Full amount from either defendant
○ Each defendant is liable for the entirety of the damages
○ Once the plaintiff collects all of the money from one defendant, the defendant may collect the
money from the other 2 defendants by contribution
■ Contribution may not be claimed by intentional tortfeasors but it can be claimed against
them.
■ Exception: No contribution from Immune parties and defendants who settle in good faith.
● Common law indemnity
○ When plaintiff gets judgment, manufacturer disappears, then the retailer has to pay, the retailer
has a claim over the manufacturer. Both are at fault.
○ Indemnity = as between
 ■ Exception: immunity (husband and wife)
● FAULT AND HARM are two different things
● If there is no way to determine two different defendants causing which injury, we hold them joint and
severally so plaintiff can recover
○ If the defendants want to exonerate themselves them may do so but it is their burden of proof.
Failure To Act
● At common law, there is no duty to assist, rescue, or to summon help
○ Exceptions:
■ If you create a peril, you have a duty to respond
■ If you try to help, do so in a non-negligent wy
● 2 types of samaritan law that protect
○ anyone who tries to help
○ Trained medical provider (boy scout included)
■ If you promised to summon help, you may be held liable.
○ Three types of relationships to these EXCEPTIONS between:
■ Defendant and instrumentality of harm (authority, ability)
● If there is a foreseeability of actual knowledge and constructive knowledge, then
that person has a “special reason to know” (wife of sexual abuser)
■ Defendant and injured plaintiff
● Tarasoff call: Duty runs to psychiatrist of defendant to warn person plaintiff who
might be harmed.The relationship supports the duty and runs to Tatiana.
■ Defendant and person causing harm
Emotional Distress
● IF the negligence of defendant causes psychiatric harm to defendant, that psychiatric harm is
recoverable in damages.
○ Zone of danger not needed
○ No consequences needed or parasitic harm
● If the injury is fright, and fright causes physical alteration, then the psychiatric harm and mental harm,
then can recover. Plaintiff must prove that the psychiatric harm is extremely severe.
● RULE: Where a definite and objective physical injury is produced as a result of emotional distress
proximately caused by defendant’s negligent conduct, the plaintiff in a properly pleaded and proved
action MAY RECOVER in damages for such physical consequences to himself notwithstanding the
absence of any physical impact upon plaintiff at the time of the mental shock
● BNIED- (will be tested on)
1. Defendant was negligent with regards to principle plaintiff
2. Bystander plaintiff was a percipient witness
a. Witness negligence AND infliction of injury
3. Bystander plaintiff and actual plaintiff (must be closely related by BLOOD or MARRIAGE)
4. Bystander plaintiff must suffer severe emotional distress.

Limited Duty: Negligent Infliction of Emotional Harm

Commercial Outline
I. Claims:
A. Physical Injury (impact rule): If physical injury occurs and there is subsequent emotional distress all
courts all for a parasitic claim of the emotional distress (impact rule)
B. No Physical Injury: If there is no physical injury (contact) and then there is subsequent emotional
distress, some courts will allow this claim to progress.
A. Florida Rule for recovery:
 1. There must be physical impact
2. That impact must produce injury
a. Example: If doctor misreads blood results and tells patient that he is HIV positive
patient cannot recover since there is no physical impact
A. Majority Rule: Impact not required to show negligent infliction of emotional harm in most
jurisdictions
A. Bystander Recovery Rule: (exception to impact rule)
1. Person seeking damages must be closely related to injury victim (e.g. spouse, child,
immediate family only!)
2. Nearness (proximity to the accident)
3. Nowness (suffers emotional distress right at the moment they see or are told of injury)
a. Example: In example above husband still cannot recover but the wife can due to the
bystander rule
● In all “bystander rule” cases the plaintiff must show that his emotional distress was more
than an ordinary grief response that would be experienced by a person due to event
A. Cases:
1. Thing v. La Chusa- Mother who did not witness an accident which injured her child wanted
to sue driver for negligent infliction of emotional harm. Court did not allow recovery because
element of nearness was missing from bystander recovery rule
On the Premises
● 2 categories of people who come on the land (but there could also be liability to people off that land.
○ Trespassers
■ Generally, no duty, but no traps either
■ Known trespassers, same duty as licensee
○ DUTIES
■ Activity on land: the duty to the people is ordinary care under all the circumstances.
■ Artificial conditions on land (ex. Storm gutter, swail): ordinary care under all the
circumstances.
■ Natural Condition (beehives, waterways) NO DUTY
● EXCEPTION: fallen trees in an urban area, there is a duty to inspect upon
reasonable inspection (rural, no one is there)
● LICENSEE
○ Permitted to travel across land
■ Social guests of railroad
■ Duty to warn (if it is known to occupier and unknown to licensee)
■ If the condition is apparent, it provides its own notice.
● INVITEE
○ On premise for business
○ Duty to inspect and make safe
○ You don’t have to buy anything or be in a place to sell anything, extends to public places
Transition of Status

Retail Store Room Kitchen of family friend

Invitee Licensee (invited) Trespasser

Attractive Nuisance
- Types of relationships
 1. Parent → child (not reciprocal)
2. Spouse - spouse
3. Employer - employee (during work hours)
4. Teacher - student (k-12)
5. Common carrier-passenger
6. Innkeeper-guest
7. Proprietor-patron
a. Old guy walks in Taco Bell and has a heart attack, manager tells employee not to call
911, because we might get sued. Estate of decedent claimed if they would have called,
he would not have died.
8. Psychotherapists/physician-patient
9. EXCEPTIONS:
a. Known child trespassers- not a nuisance.
i. An occupier will be held liable if
1. Dangerous/artificial condition on land
2. Occupier has knowledge of condition
3. Occupier has actual notice that children trespassed
4. This child is incapable of recognizing the risk
a. Standard is subjective to this particular child (not objective to
similar children of age
5. Utility of condition and cost of remediation ARE SLIGHT as compared to
risk to children
b. HYPO: Landowner builds a pond, it is not necessary to fence the entire pond. On the
other hand if you have a well, a landowner will be obligated to put a cap on well so the
kids do not fall in.
Wrongful Death
1. Who may bring the claim?
a. Wife/husband
b. Children
c. Parents
d. Adopted
i. Exception: no stepchildren
2. How do you bring the claim?
a. Establish the tort (in our case it will certainly be negligence to the decedent)
i. Duty to decedent
ii. Breach to decedent
iii. Cause-in-fact (of death)
iv. Proximate Cause
v. Harm (death only)
b. Establish the relationship to the decedent
i. Why? Because it is a statutory cause of action (and may vary from state to state). In real
practice you may need to product a marriage license, birth certificate. But on the exam,
the facts are given.
c. Establish the Pecuniary Harm to the Family
i. Content
1. Decedent’s financial contribution to family measured by
a. Income (+)
b. Consumption (-)
 2. Decedent’s services provided to family
a. If dad used to cut the grass, now you have to find someone and pay them
for their services.
3. Decedent’s pecuniary harm
a. Loss of society
b. Comfort
c. Companionship
d. Tip for practice: Always bring both claims of survival and wrongful death if you can establish
both plausible claim. Just because the case is settled for survival claim, they need to still prove
wrongful death claim.
e. Lost wages are always part of the wrongful death claim.
Survival
1. This is the plaintiff’s claim for his own injuries he brings while he is still alive, and then still exists after
he dies.
2. Nominal plaintiff in this cause of action is the executor.
a. Almost in every state, the executor has a duty at common law to bring both claims of wrongful
death and survival. This may also be a statutory duty
3. Survival damages goes to the estate and according to the will or intestacy act (closest living relative
i.e. 2nd cousin)
4. There will be no damages for pain and suffering if plaintiff was unconscious from the time of injury until
death.
5. The statute of limitation runs from the date of injury to the date of death.
6. Generally speaking, survival action accrues on the date of injury (statute of limitation) whereas wrongful
death accrues on the date of the death
a. “Pre-impact frights, on the way down, there is conscious fear, one’s estate may bring a survival
action and claim damages. For the example in book, the jury awarded $1 million for fright of 2
seconds.
7. If decedent turns out to be 30% at fault for the comparative fault, he can only recover 70% of damages.
8. Death can be brought by a different action, you can bring a survival act against the original tortfeasor of
injury, a wrongful death and survival action against the airline.

VICARIOUS LIABILITY
● Respondent Superior
● Employer liable for negligence and some int’l torts committed by employee in course & scope of
employment
● Employer is without fault
● Going to an event from work is considered being within the course & scope of employment

● Includes
● Acts needed for comfort, security, health, etc of Employee
● Detour (minor deviation)
● Dual purpose trips
● Drunkenness — Office events

● Excludes
● Coming and going rule: Employee going to work and coming from work
● Frolic: Abandonment of Employer’s purpose for Employee’s purpose

● Hypo: Truck driver wants to see his lover. Speeding on the way back. Has an accident
 ● Joint and several liability is Ee and Er in Franklin

2) INDEPENDENT CONTRACTORS
● The question is: Who controls the method of conducting the work?
● Take a look at the time, place, and manner the work is conducted
3) NONDELEGABLE DUTIES
● Has to do with the purpose of the work being performed
● One cannot delegate to others to take care for you
● Two most important nondelegable duties: (1) Cars and (2) Land

● Maloney v. Rath
● Rath is entitled to full indemnity from the mechanic

● Hypo: Clean the snow within so many hours. Bob hires snow guy. Snow guy clear, but misses a spot. Neighbor
falls. Both are liable
● Hypo #2: Snow guy, while cleaning, loses control of the shovel and it hits Bob’s neighbor. Bob is not liable

4) JOINT ENTERPRISE
● Can come and go
● It could be a one day thing

● Hypo: Used car guy hires fireworks guy. Fireworks guy tells used car guy that he’s going to go get the hotdogs for
the event. Fireworks guy runs a red light and hits B. Both used car and fireworks guy liable.
● Hypo #2: Instead of going to pick up the hotdogs, fireworks guy goes to pick up her daughter and runs the red
light. Only fireworks guy is liable
● Hypo #3: Both trips. Both liable under Dual Purpose Trips

Strict Liability
1. Ultrahazardous Activities (abnormally dangerous)
a. Elements
i. The risk thinking in likelihood and severity is extremely high, and
ii. Activity is extremely useful, and
iii. Activity cannot be made safe (reasonable care)
b. Prima Facie Case:
i. Defendant has conducted blasting operations
ii. This blasting was a cause-in-fact of defendant’s harm
iii. Harm was caused by something that made blasting (insert activity) ultrahazardous in the
first place.
1. Concussion of air
2. Landing of debris
3. Vibration of the land
iv. Harm
1. Personal Injury and/or
2. Property
2. Animals
a. Wild
i. Whoever harbors, strictly liable for harm the wild animals inflict.
1. Exception: Owner not strictly liable from animals not acting in wildness.
a. Example: Wild animal takes a shit on the floor outside and someone slips.
Not acting in wildness, that is the normal course of action.
 ii. Prima Facie case
1. Defendant has harbored wild animal.
2. The animals were a cause-in-fact of the harm.
3. Harm must arise from the wildness of the animal.
4. Harm
a. Personal injury and/or
b. Property
b. Household
i. Presumed to be safe
ii. At common law, an owner not strictly liable, but could be liable for negligence.
iii. Only after the harborer had constructive or actual knowledge that the animal is
dangerous, then they could be strictly liable
iv. Ex: daycare lady with jumping dog severely harmed a kid at the childcare she runs.
v. Prima Facie case
1. Defendant has harbored a household animal
2. The animals were a cause-in-fact of the harm
3. Harm must arise from the animal being presumptively dangerous
4. Harm
a. Personal injury and/or
b. Property
c. Farm
i. At common law, keeper of animal, strictly liable when animals roam
1. Ex: Farm animals roam to neighbors and trample eat on land
ii. Prima Facie case
1. Defendant has harbored a farm animal
2. The animals were a cause-in-fact of the harm
3. Harm must arise from the animals (by the nature) roaming on another’s property
4. Harm
a. Personal injury and/or
b. Property
3. Food
a. Fine tuning:
i. Bone in food: negligence claim
ii. Metal in food: strict liability
b. There is a tort warranty for Public Policy to consumers for food that is contaminated
c. Prima facie case
i. Food consumed/bought was from defendant (restaurant and manufacturer will be liable)
ii. Food was contaminated
iii. Harm was caused by the contaminated
iv. Harm
1. Personal Injury