Tort, A civil injury or wrong, as opposed to a criminal wrong, that is not contractual nor arise from statute.

Three Types of Torts

  1. Negligence
  2. Intentional Torts
  3. Strict liability

Strict Liability

Two Major Areas

  1. Product liability
  2. Abnormally Dangerous Activities
    1. "We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape." Rylands v. Fletcher
      1. Now taken to apply to non-natural uses of land.
  • Strict liability is the one type of tort that does not involve fault (defendant hasn't departed from a reasonable standard of care).
    • Basis of liability is the creation of an undue risk of harm to other members of the community, regardless of how much care was exercised in undertaking the risk.

Intentional Torts

  1. Tortious Intent
    1. Volitional Act AND
    2. Either a) for the purpose or, b) with substantial certainty of the tortious consequence.
    3. As defined by Restatement, "intent" has three basic elements:
      1. A state of mind
      2. About consequences of an act (or omission) and not about the act itself
      3. That extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief or knowledge that given consequences are substantially certain to result from the act.
    4. A knowledge or appreciation of risk is not enough - there must be substantial certainty in the result.
    5. Transferred Intent
      1. When the plaintiff intends action towards one person but accidentally affects another person, the intent is transferred to the second person, or where a person intends only apprehension of contact but causes actual contact.
      2. Intent of battery can be substituted as evidence for assault, or vice versa.
  2. Battery
    1. Three Elements:
      1. Intent to commit a harmful or offensive touching
      2. That results in harmful or offensive Contact.
      3. Causation
    2. "Personal indignity is the essence of an action for battery."
      1. Anything that can logically be considered an extension of the body (anything that is "practically identified" with the body), such as clothing or something held in the hand, is considered part of the body for the purposes of battery.
      2. Victim's awareness not necessary - a sedated or sleeping defendant can still claim battery.
    3. Intent and Causation
      1. The act must cause, and must be intended to cause, an unpermitted contact.
      2. Physical harm or actual damage not necessary - offensive and insulting results will fall under battery (i.e., spitting in face, forcibly removing one's hat).
      3. Action meant as joke will suffice (i.e, unconsented to kiss)
      4. Consent is assumed in ordinary, day to day contacts (tap on the shoulder for attention, casual jostling on street), absent special knowledge of plaintiff's wishes or condition.
  3. Assault
    1. Three Elements:
      1. Intent
      2. Apprehension of a harmful or offensive contact.
      3. Causation
    2. Distinguished from Battery as not requiring any actual contact, just mental disturbance.
    3. Mere words do not amount to assault - they must be accompanied by an act.
      1. Further, there must be the apparent ability to carry out the threatened act.
      2. Courts hesitant to protect "egg shell" plaintiffs under assault - IIED the more appropriate tort for fragile individuals.
  4. False Imprisonment
    1. Four Elements:
      1. Intent
      2. Actual confinement in boundaries not of plaintiff's choosing
      3. Causal link
      4. Awareness of confinement.
    2. "The essence of false imprisonment is the intentional, unlawful, and unconsented restraint by one person of the physical liberty of another."
      1. Can include force against property (confiscating belongings to keep individual from leaving), by words alone, or by unfounded assertion of legal authority.
      2. May consist in the intentional breach of a duty to take active steps to release the plaintiff from a proper confinement (i.e., keeping someone in mental institution longer than state-mandated sentence, failure to place in court promptly after an arrest).
    3. "False imprisonment may not be predicated upon a person's unfounded belief that he was restrained." Herbst
      1. Questions of fact in individual cases may exist over degree of deprivation, whether the belief in deprivation was reasonable, or whether there was consent to deprivation.
  5. Intentional Infliction of Emotional Distress
    1. Four Parts:
      1. Outrageous conduct by the defendant
      2. The intention of causing, or reckless disregard of the probability of causing, emotional distress;
      3. Actual suffering of severe or extreme emotional distress
      4. Actual and proximate causation of the emotional distress by the defendant's outrageous conduct.
    2. Insult, Injury and Extreme Outrage
      1. Law will not recognize mere insult or emotional injury without aggravating factor - hence, the outrageous conduct requirement.
      2. Outrageous conduct will also be found where the defendant knew the plaintiff to be particularly disposed to harm by conduct.
    3. Severity of Distress
      1. Distress must be such as a "reasonable person" would undergo under the circumstances (unless "egg shell" plaintiff)
      2. Bodily harm not required - mental harm itself adequate
        1. In absence of physical damage, court may look more closely at outrageousness of conduct - where it is sufficient to presume emotional distress, action will lie.
        2. Willful, wanton or reckless behavior in deliberate disregard of potential distress qualifies as intent.
    4. Injury to Third Party
      1. Transferred intent usually not applied, but court may look to foreseeability and willful, wanton, or reckless conduct where third parties have suffered injury.
  6. Trespass to Land
    1. Protects the interest in the exclusive possession of the land.
    2. Anyone who has actual and exclusive possession of land can bring action for trespass as a plaintiff.
    3. Elements:
      1. Actual interference with right of exclusive possession (entry element).
      2. No requirement of damages
        1. Exceptions: showing of damages required in pollution trespass cases and neighbor trespass cases.
      3. Intent or negligence.
        1. Technically, the person must intend to be on the land that they are on - but simply because they do not know they are trespassing does not mean there is no action.
        2. In the absence of an intentional act, a negligent act resulting in interference with exclusive possession will suffice.
    4. Contrast with Nuisance, which protects the quiet enjoyment of land.
      1. Difference b/t nuisance and trespass: trespass does not need to prove damages or that the invasion was unreasonable (both requirements for nuisance).
  7. Trespass to Chattels
    1. Elements:
      1. Showing of actual damage.
      2. "Any direct and immediate intentional interference with a chattel in the possession of another." Prosser
    2. Conversion
      1. Only requires a nominal showing of damages.
      2. Compare with trespass: in trespass, damages will be assessed on the value of the "lost use" of the item, but the item will be returned; in conversion, only nominal damages to the item itself are required, but the remedy is to find the item "converted" and damages will be the entire value of the item.
  8. Affirmative Defenses for Intentional Torts
    1. Privilege
      1. Any circumstance justifying or excusing a prima facie tort
      2. Signifies defendant has acted to further an interest of social importance that is entitled to protection.
        1. Exists where defendant can show he acted from a justifiable motive.
      3. Residual justification privilege - not an official term, but where there is no recognized privilege, a new privilege may be created (by the court) for particular circumstances.
    2. Mistake
      1. Defendant acted under a mistaken belief his conduct was justified - and we want to protect the justification. (very vague)
      2. If the mistake has been induced by the plaintiff's own conduct defendant may be excused.
    3. Consent
      1. Consent negatives the existence of a tort: volenti non fit injuria - to one who is willing, no wrong is done.
      2. Objective Manifestations
        1. A manifestation of consent, upon which the defendant may reasonably rely, will negate tort even if there is no willingness in fact.
        2. Reasonable Person Standard
        3. Silence or inaction may qualify under the circumstances.
      3. Exceeding to Scope
        1. When actions go beyond the consented action, or customs of contest, in sport.
        2. If the defendant goes beyond the consent given, and does a substantially different act, he is liable.
      4. Revocation of Consent
        1. Consent can be revoked during the act.
      5. Consent to Illegal Acts
        1. A majority says consent will not protect defendant from damage done. A minority, and Restatement, say that the consent will defeat the civil action, except where the force used exceeds the consent.
      6. Consent Vitiated via Affirmative Misrepresentation
        1. Consent not effective if the defendant knew, or should have known in the exercise of reasonable care, that the plaintiff was mistaken as to the nature and quality of the invasion intended.
        2. Mistake must extend to the "essential character" of the act itself, i.e. that which makes it harmful or offensive, rather than to some collateral matter.
      7. Consent Vitiated by Non-Disclosure
      8. Other: Infancy, Duress, Incapacity, Intoxication
        1. No consent where person lacked capacity to consent.
        2. Incapacity must put person below the capacity of an average person.
      9. Emergency exception:
        1. Patient must be unconscious
        2. Time must be of the essence
        3. Under the circumstances, would a normal person consent?
    4. Self-Defense
      1. A person may take reasonable steps to prevent harm to himself.
        1. Once danger passes, privilege disappears.
      2. Extends to situations where there is a "reasonable belief" of impending danger.
      3. Deadly force may be used against deadly force.
        1. But, if there is a means of escape, it must be taken.
          1. A man is not required to leave his own home.
    5. Defense of Property
      1. Same principles as self-defense - force used cannot be excessive.
    6. Recapture of Chattels
      1. Three frameworks for recovery of property:
        1. Common law privilege of hot pursuit - reasonable force permissible to recover stolen goods.
        2. Shop Keeper's Privilege - to detain for a reasonable time a person suspected of theft.
        3. Reasonable sale K under UCC - under default of payments for property, self-help remedy where seller can repossess without a breach of the peace.
    7. Necessity
      1. Similar to self-defense, except defendant is not trying to avoid harm from plaintiff, but from a third source.
      2. Public Necessity
        1. The defendant who acts to avert peril to all, the public interest acts as a complete justification (i.e., dynamiting a house to avoid a town wide conflagration).
        2. Most cases have involved property that would have likely been destroyed anyway.
      3. Private Necessity
        1. While it may excuse trespass, it does not excuse the infliction of actual damage to another's property.


  1. Generally
    1. Exposure of others to foreseeable and unforeseeable risks.
    2. Difference from intentional torts
      1. No intent required.
      2. Must show damages.
    3. Basically about how people should behave (societal standards of due care)
      1. Compensation for the injured
      2. Deterrence of unreasonable conduct
      3. Resolution of disputes
      4. Allocation of risk
        1. Risk: a danger which is apparent, or should be apparent, to a reasonable person.
        2. Must be assessed from the time of acting, not looking back.
        3. Risk must be unreasonable.
      5. Economic efficiency, concepts of justice, etc.
    4. Three Defenses (Unholy Trinity)
      1. Assumption of Risk
      2. Contributory Negligence
      3. Third Party Negligence
  2. Prima Facie Elements of Negligence
    1. Duty (Judge Decided)
    2. Breach
    3. Cause in Fact
    4. Proximate Cause (Legal Cause)
    5. Damage


- Hand Formula: Liability depends on whether B<PL, where B = burden, P = probability, and L = injury (or, whether the seriousness of expectable injury multiplied by the probability of such injury's occurrence outweighed the burden of taking precautions against it.)

  1. Reasonable Person
    1. An absolute standard - those of above, or below, average abilities will still be judged by the standard.
      1. Professionals will be held to a higher standard within their field.
    2. Some allowance is made - i.e., a blind man should act as a reasonable blind person would.
    3. Special Standard of Care for Children
      1. "Minors are entitled to be judged by standards commensurate with age, experience, and wisdom when engaged in activities appropriate to their age, experience, and wisdom."
      2. Standard of care for children more subjective - they will be held to more account, the more advanced their capabilities.
      3. Exception is when minors are engaged in an "adult" activity - mainly construed as when driving.
    4. Custom within different trades a factor.
  2. Breach via Violation of Statutory Duty (Negligence Per Se)
    1. Will usually establish only breach - the other elements must still be satisfied, and defenses such as contributory negligence are still available.
      1. Certain "exceptional statutes" will impose strict liability - they are meant to protect a class that can't protect itself, so negligence per se will establish negligence generally.
    2. The statute must have at least an implied cause of action - is it construed to afford protection against the conduct of the defendant, and so give the character of negligence to his act.
    3. Plaintiff must show he belongs to the intended protected class under the statute.
    4. The harm suffered must be of the type which the statute was generally meant to prevent.
      1. Ex.: Prohibiting overcrowding of livestock on ship meant to avoid disease, so loss from animals being swept overboard not actionable under the statute.
    5. Exceptions:
      1. Reasonable diligence to obey the statute will often excuse a violation.
      2. When physical circumstances out of defendant's control cause a violation (i.e., failure of a car's headlights).
      3. "Emergency": where following the letter of the law would be more dangerous than violating it (people walking on wrong side of highway because the proper side was much busier).
      4. Adherence to statute does not necessarily establish due care: it sets a minimum level of conduct, and the defendant who complied with the statute may still be found negligent when other factors are considered (no immunity from neg. w/compliance).
  3. Res Ipsa Loquitor
    1. Elements:
      1. The event must be of a kind which ordinarily does not occur in the absence of someone's negligence;
      2. It must be caused by an agency or instrumentality within the exclusive control of the defendant;
      3. It must not have been due to any voluntary action or contribution on the part of the plaintiff.
    2. Majority of courts will send case to jury with a finding of RIL - a minority will grant a directed verdict for the plaintiff.
    3. Res Ipsa Loquitor often depends on circumstantial evidence, and reflects a policy that a jury should be able to make a reasonable conclusion from circumstances, even in the absence of direct evidence.

Cause In Fact

  1. The But-For Test
    1. The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct.
    2. A preponderance of the evidence test where the facts claimed by the plaintiff must be more likely than not to exist.
    3. "More probable than not" - standard for civil cases.
  2. Substantial Factor Test
    1. The defendant's conduct is a cause of the event if it was a material element and a substantial factor in bringing it about.
    2. Arises when there are two (or more) tortious actors, thereby negating the But-For test.
  3. Alternative Liability Cause In Fact
    1. Where two parties act wrongly and the plaintiff is injured, the burden or proof for cause in fact is shifted to the defendants to prove they did not cause the damage (two hunters firing simultaneously).
  4. Concerted Activity Cause In Fact
    1. Where both parties have agreed to act tortiously, either party can be held liable for the entirety of the damages
    2. Relies on either "conscious parallelism" or "express agreement."
      1. There must be some measure of agreement, a plus factor, on top of conscious parallelism.
  5. Market Share Cause In Fact
    1. Liability can be assigned in proportion to a company's market share when the product they produce is known to have caused injury but an individual manufacturer cannot be identified.
      1. Almost exclusively confined to DES cases.
  6. Lost Opportunity Doctrine
    1. Has the defendant's conduct robbed plaintiff of a chance to avoid injury?
      1. Exclusively limited to medical malpractice cases.
      2. Chances still need to be higher than 50% for full recovery. If lower, then look at difference in percentage for survival, and apportion damages appropriately.
  7. Apportioning Damages According to Causation
    1. Divisible vs. Indivisible Injuries
      1. Divisible injuries will be apportioned (b/t tortfeasers), indivisible injuries will lead to joint and several liability.
      2. Joint and several liability - either defendant can be held responsible for entirety of damages.
        1. Contribution ameliorates what could be unfair result of one defendant getting stick with entirety of damages.
          1. Pro rata rule apportions damages equally amongst defendants.
          2. Contribution may fail if other party does not have assets or was never identified
        2. Historical expansion of Joint and Several Liability
          1. Originally applied only to those acting in concert
          2. Expanded to cover independent tortious actions at the same time causing individual injuries
          3. Successive acts where injuries cannot be divided.
    2. Pre-Empted Cause - Having capacity to cause loss is no substitute for having caused it - if 1 fire gets there first, 2nd fire shouldn't be liable.
    3. Where tortious acts combine with innocent acts (such as medical malpractice for injury/unlawful death but there was a preexisting cancer), damages should be given for tortious act, but should take into account the preexisting condition or innocent act.
    4. Egg Shell Plaintiff
      1. Where plaintiff is particularly disposed to greater injury, the defendant is liable for all of injury he caused (not mitigated by P's fragile nature).
      2. Alternatively, if a plaintiff is particularly immunized from damages, the defendant is still only responsible for damage caused.

Legal (Proximate) Cause

  • Not an issue of causation - it arises after causation has been established. Basically asks, should D be held responsible for the results of his actions, or at what point should D's responsibility end.
  • Debate (and confusion) exist over whether legal cause should apply to foreseeability of risk or directness of consequences.
  • More confusion or conflation with duty.
  • Limits liability even where D has breached a duty and factually caused physical harm.
  1. Direct - Remote Test
    1. Polemis Rule
      1. Liability extends to direct causal incidents, regardless of foreseeability.
  2. Forseeability of Harm Test
    1. Wagon Mound Rule - foreseeability controls.
      1. Basically, the results of the action were probable, and not outside of reasonably anticipated results.
    2. Extends only to the kind of harm - if kind of harm is unforeseeable, we are in an area where the courts are divided on whether liability should be found.
  3. Forseeability of Manner of Harm
    1. Does not affect liability.
  4. Forseeability of Extent of Harm
    1. Falls under thin skull doctrine so it does not affect liability, just damages.
  5. Forseeability of Plaintiff Test
    1. Palsgraf rule - only those people who are forseeably at risk are owed a duty.
      1. Plaintiff cannot sue "as the vicarious beneficiary of a breach of duty to another."
      2. Links Legal Cause and Duty.
      3. Andrew's dissent offers alternative - negligence is a public duty owed to the "world at large": "not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone."
      4. Distinction between unforeseeable sequence of events (often liability) vs. unforeseeable mechanism (often no liability)
  6. Intervening Acts and Superceding Cause Doctrine
    1. Whether the defendant is to be held liable for an injury to which the defendant has in fact made a substantial contribution, when it is brought about by a later cause of independent origin for which the defendant is not responsible.
    2. Should the defendant be relieved of responsibility by the subsequent event (was his liability superseded?).
    3. Falls back on foreseeability - if the intervening cause was foreseeable, the defendant should still be held liable.
      1. Confusion exists - where a normal person would not have anticipated the intervening act, liability has still been found where the act is considered "normal" to the conditions created by the defendant.
      2. Defendant may still be held liable where another actor is negligent - forcing someone onto the street, where they are hit by a negligent driver, will lead to a finding of negligence.
      3. Defendant must increase risk from foreseeable cause to be held liable.
    4. List all foreseeable risks - if defendant's actions do not lead to injury in the realm of possible risks, no liability.
    5. Rescue doctrine - a rescuer is considered foreseeable, and the defendant will be liable to him as well.
      1. Rescuer may be open to claims of contributory negligence.
    6. Ex: where the defendant has injured plaintiff and weakened him, he is liable for the disease plaintiff caught in his weakened state.
    7. Foreseeable results from unforeseeable causes often lead to liability - a negligently tended to barge, filled with explosive gas, struck by lightning and exploded = liability.

Duty - Limited Duty and No Duty Doctrines

  1. Generally
    1. Heaven v. Pender Rule: anyone engaged in an activity that potentially places others at risk of physical harm has a duty to use reasonable care to minimize the risk.
    2. Alternative: "In order for negligence liability to attach, the parties must have a relationship recognized by law as the foundation of a duty of care."
  2. Privity of Contract
    1. Lack of privity can lead to a finding of no duty.
      1. Even if no privity is not a direct basis for no duty, it can be an influential factor.
  3. No Duty to Act (Nonfeasance v. Misfeasance)
    1. Misfeasance - active misconduct working positive injury to others.
    2. Nonfeasance - passive inaction, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of the defendant.
      1. Broadly speaking no person is under a duty to another unless he has entered upon some course of conduct towards such other. As long as a person does nothing he comes under no duty imposed by law.
    3. Exceptions
      1. Volunteer - Good Samaritan - Undertaking
        1. While common law imposes no duty to rescue, it does impose on the Good Samaritan the duty to act with due care once he has undertaken rescue operations (a duty of reasonable care not to make things worse).
        2. Once help is given, a duty of care arises:
          1. Must use reasonable care,
          2. Cannot leave person worse off than they were.
        3. Many states have "good Samaritan statutes" that encourage rescue attempts by giving immunity from tort claims unless there is gross negligence.
      2. Special Relationship

- Special relationships will potentially give rise to a duty of affirmative care.

        1. Common Carrier - Passenger
        2. Inn Keeper - Guest
        3. Occupier of Land - Public Invitee
        4. Custodian - Ward or Charge
        5. Employer - Employee
      1. Control Instrumentality
        1. Ex.: owner of car is in such a position to control the conduct of one who is driving it in his presence that he is required to act reasonably to prevent negligent driving.
        2. Imposes simply a duty of reasonable care and foreseeability.
      2. Prior Conduct Exception
        1. An actor who does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, is under a duty to exercise reasonable care to prevent the risk from taking effect. (Restatement)
        2. Two ingredients: 1) defendant's prior conduct, which is not itself being asserted as a basis for liability, and 2) the defendant's subsequent failure to take steps to deal with a danger that has arisen out of the prior conduct, which failure is being asserted as the basis for liability.
  1. Negligent Infliction of Emotional Distress: Limited Duty Re Emotional Harm Absent Physical Injury
  • Mental disturbance, without accompanying physical injury, illness or other physical consequences are held by most courts to NOT be a basis for damages.
    • Once physical injury is established, mental claims are valid "parasitic" claims.
    1. Impact
      1. "Impact" affords the desired guarantee that the mental disturbance is genuine.
      2. Can extend to minor contacts which cause no real harm of their own.
      3. Some courts have gone so far as to reject any physical requirement, but they are in the minority.
    2. Zone of Danger
      1. Some courts hold that a duty of care is owed to those within the "zone of danger" of those actually injured.
      2. Physical Manifestation - often a necessary element to zone of danger claims.
        1. Many courts have rejected impact theory, regarding as sufficient the requirement that the mental distress be certified by some physical injury, illness or other objective physical manifestation.
        2. Lack of physical manifestation does not preclude recovery, for there may still be an impact - zone of danger is an expansion of impact theory so the elements should be transferable from impact into zone claims.
        3. Other courts require no physical manifestation, one going so far as proving only the foreseeability of extreme emotional distress.
    3. Bystander
      1. Other courts have expanded duty to foreseeable bystanders, based on three factors (Dillon test):
        1. The bystander is located near the scene of the accident - "physical proximity"
        2. The bystander personally observes the accident - "temporal proximity"
        3. The bystander is closely related to the victim - "relational proximity"
          1. Some courts view above as factors, not requirements.
  1. Economic Loss Without Physical Injury
    1. Bright line limit on liability - no physical injury, no recovery.
    2. With physical injury, economic loss claims are valid parasitic claims.
  2. Limited Duties of Owners and Occupiers of Land
    1. Trespasser - one who enters (or stays) without any right or privilege to do so.
      1. Occupier owes no duty to a trespasser except to refrain from injuring him by wilfull or wanton misconduct.
        1. Exceptions: different duty of care for children; when occupier knows people habitually frequent the property it imposes a duty of reasonable care.
    2. Licensee - One whose only privlege derives from the occupier's consent (i.e., social guests)
      1. Most jurisdictions impose a duty of reasonable care:
        1. In the conduct of activities on the premises if the danger is not apparent to the licensee, and
        2. To warn the licensee of dangerous conditions (both natural and artificial) if the occupier knew or had reason to know of the condition and the condition was not known or likely to be discovered by the licensee.
        3. Occupier does not have a duty to inspect and discover hidden hazards for the licensee.
    3. Invitee - comes on some errand of potential economic benefit to the occupier or under circumstances implying a representation by the occupier that reasonable care has been used to make the place reasonably safe.
      1. Imposes a duty of reasonable care with respect to activities and with respect to conditions about
      2. which the occupier should have known.
      3. Does impose a duty to inspect and discover hidden hazards.

    1. Invitee vs. Licensee
      1. As to injuries from activities, the occupier owes the invitee a full blown duty of reasonable care, whereas the duty owed to the licensee is somewhat circumscribed by the licensee's obligation to look out for himself.
      2. As to injuries from conditions, the invitee is owed a duty respecting conditions about which the occupier "should have known" whereas the licensee is owed a duty with respect to conditions about which the occupier had "reason to know."
    2. Occupier - an owner in residence; if land is leaded, the lessee; if property is abandoned, the last occupier.
    3. Duty On Premises
      1. While about half of states have abolished the tripartite structure above for a general duty of reasonable care, the general movement is back towards it.
      2. Exception for Injury to Children
        1. Attractive Nuisance Doctrine imposes a duty of reasonable care upon owners for trespassing children. Basic Elements:
          1. Possessor knows or has reason to know children are likely to trespass
          2. Possessor knows or has reason to know condition will involve unreasonable risk of injury or death.
          3. Because of their youth children do not discover the condition or realize the risk involved
          4. Utility to the possessor of maintaining the condition and burden of eliminating danger are slight as compared with the risk to children involved
          5. Possessor fails to exercise reasonable care to eliminate or mitigate danger.
    4. Duty Off Premises
      1. Traditional common law differentiated between artificial and natural hazards. Modern movement has been to impose a general duty, regardless of the type of condition.
  1. Newer No/Limited Duty Doctrine - Duty to Protect Against Third Part Crimes and Torts (also, Legal Causation and Superceding Cause)
    1. Newer doctrines may limit potential liability for policy reasons (ex.: No duty for fat food sellers.)
    2. To limit/eliminate liability in cases involving intervening acts by third parties
      1. Black Talon, Soldiers of Fortune cases.
  2. Special Duty - Professional/Medical Malpractice
    1. Professional Duty
      1. Components:
        1. Skill and knowledge of an ordinary professional
        2. The knowledge be used with reasonable care (according to profession's standards)
        3. The professional must act in the best interest of the client.
      2. Standard of Care
        1. Must be established by some other professional within the field, or must establish that his field has the same procedures as the field in question
        2. Expert witness requirement waived if the conduct is so obviously outside the standard of reasonable care that no expert testimony is required.
      3. Informed Consent
        1. A negligence doctrine to be distinguished from other defenses to consent.
        2. In this context, part of a doctor's standard of care is telling the patient the alternatives and risks of the treatment - if not properly performed, can lead to liability.
        3. A frequent alternative to medical malpractice claims.


  1. Physical Injury to Person or Property
    1. Element of prima facie negligence case.
  2. Types of Damages
    1. Economic Damages
      1. Medical past
      2. Medical future (includes custodial and nursing care, etc.)
      3. Lost past earnings
      4. Lost earnings expectancy - future
    2. Non-Economic Damages
      1. Pain and suffering
      2. Loss of enjoyment
      3. Disfigurement, etc.
    3. Attorney's Fees
      1. Under American system, the party pays for their own attorney, except where statute dictates otherwise or by contract.
  3. Compensatory Damages
  4. Proof of Damages
  5. Collateral Source Doctrine/Subrogation
    1. Traditionally, bars evidence of payments from collateral sources being submitted to the jury - favors plaintiff!
    2. Plaintiff shouldn't be able to recover from multiple sources. At the same time, defendant shouldn't benefit from the plaintiff's purchasing of insurance, so any money recovered from the Defendant will often go back to Plaintiff's insurance carrier (if they paid out) under subrogation.
  6. Interest on Damages
  7. Taxation of Damages
    • Rule behind excuse of taxation on compensatory damages is based on idea that you are being returned to your original position, so it is not income. Punitive damages are considered a "windfall" for the plaintiff, so they can be taxed as new money.
      1. Compensatory damages: Emotional distress, pain and suffering, disability damages - not taxable.
      2. Wage/income loss not taxable.
      3. Punitive damages - taxable.
  1. Periodic Payments
  2. Structural Settlements
  3. Caps on Damages
    1. Plaintiffs attorneys want a greater number of separate categories to maximize damage awards.
    2. Three options for trial/appellate court that disagrees with damage verdict:
      1. Grant a new trial on all the issues
      2. Grant a new trial on the damage issues only
      3. Order a remittitur, whereby a (partial or complete) new trial is ordered unless the plaintiff agrees to remit a specified amount of the award.
    3. Punitive damages will often be limited within a single digit multiplier of the compensatory damages.
  4. Alternative to Tort Damages - Compensation Schemes
  5. Punitive Damages

Test for punitive damages is heightened (Drummonds: "Negligence plus.") Three guideposts for punitive damages (from State Farm v. Campbell (p. 365):

  1. the degree of reprehensibility of the defendant's misconduct;
  2. the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award;
  3. the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Factors for determining reprehensible conduct:

  • the harm caused was physical as opposed to economic
  • the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others
  • the target of the conduct had financial vulnerability
  • the conduct involved repeated actions or was an isolated incident
  • the harm was the result of intentional malice, trickery, or deceit, or mere accident
    • plaintiff has presumably already been made whole by compensatory damages, so punitive damages should only be rewarded if the defendant's culpability is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.

Wrongful Death and Survival Claims

  • At common law, all claims were extinguished at death, leaving the tortfeasor whose victim died in a better situation than he whose victim had survived but was injured.
  • Mid-19th century saw England and US states starting to adopt statutory wrongful death actions.
  • Basis of wrongful death statutes was idea that economic dependants needed a cause of action.
  • Some states limit damages to pecuniary loss, but some states (maybe about half) allow non-pecuniary damages such as loss of society, companionship, etc.
  • Nature of recovery and class of those recovering depends upon statutory construction.
  • "Survival Statute (Claim)" - more appropriately a 'non-abatement' claim - preserves claims the victim may have had after his death (had he survived).
    • Most survival statutes require the claims to be filed before victim's death, a minority preserve claims he could have filed before his death.
    • Most survival statutes limit loss of earning for time up to death, not expected income.
  • Wrongful death is the dependant's claim, survival claims are the victim's own claims.

Vicarious Liability

  1. Generally
    1. Responsibility for someone else's tortious act.
    2. Respondeat Superior most common, also seen often where the owner of a car is responsible for another driver's acts, where parental liability statutes exist, or in business partnerships and joint enterprises
  2. Respondeat Superior

*** Always look for a direct negligence claim against employer when bringing a respondeat superior claim.

    1. Basic Rule
      1. Act must happen within the scope of employment.
      2. Three part test for scope of employment (followed by many states):
        1. Time and place of employment
          1. Focus is not necessarily the time of the tortious act, but the beginning of the causal chain. (Or. S. Ct.)
        2. Act one is hired to perform
        3. Act must be to further the employer's interest.
      • The tortious act itself will rarely be in the act of employment, so you must look to the acts that led to the injury to determine if those acts were within the scope of employment. (Or. S. Ct.)
    1. Who is an employee?
      1. If the employer exercises or has the right to exercise control over the physical conduct ("manner and means") of the work, the one employed is an employee or servant.
      2. Factors to consider: length of time of the employment; who provides the tools, instrumentalities, and place of work; the method of payment (by time or by job); and the degree of skill and judgment required.
      3. Employers will be held liable for employees they know to be inherently dangerous or hazardous. Bushey
    2. Employers found guilty could file for indemnity (suing the employee for any liability), but they rarely do.
  1. Independent Contractors
    1. Basic Rule
      1. If the relationship is such that the employer directs only the result, and the party employed is free to determine the manner and means, then the relationship is one of independent contractor.
      2. Employer not responsible for IC's negligence.
    2. Who is an independent contractor?
      1. Chief test is the right to control the manner or means of performing the work.
    3. Non-delegable duties exception ("inherently" dangerous activities)
      1. Arises in two situations: 1) affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law and, 2) duties imposed on the employer that arise out of the work itself because its performance creates danger to others, i.e. inherently dangerous work.
        1. If the work to be performed fits into one of these two categories, the employer may delegate the work to an independent contractor, but he cannot delegate the duty. - Pusey v. Bator (p. 319)
        2. The work must be outside the risk created in a normal, routine matter of customary human activity - it must be a special danger arising out of the particular situation created and calling for special precautions. Pusey

Affirmative Defenses for Negligence

  1. Generally
    1. Two most common defenses are contributory negligence and assumption of risk.
  2. Contributory Negligence
    1. The plaintiff's conduct that contributes, as a legal cause, to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.
    2. Plaintiff is expected to conform to the same standard of a reasonable person of ordinary prudence as the defendant.
    3. Acts as a complete bar to recovery by plaintiff.
      1. Does not apply to intentional torts or willful/wanton negligence.
    4. Last Clear Chance Doctrine (Exception to CN)
      1. Ameliorates the harshness of CN.
      2. If the defendant had a chance to avoid the injury, despite the plaintiff's own negligence, he may still be liable.
  3. Comparative Negligence
    1. Another doctrine to mitigate harshness of CN.
    2. Three types:
      1. Pure
        1. Doesn't bar recovery - damages are apportioned in same percentage as negligence.
      2. Modified
        1. Doesn't bar recovery as long as plaintiff's negligence is apportioned below 50% (or, in multi-party instances, his percentage of fault is less than the defendant he is collecting against).
      3. Slight-gross
        1. Only used in two states: CN bars recovery unless plaintiff's neg. is "slight" and the defendant's is relatively "gross" in comparison.
  4. Failure to Mitigate Damages
    1. Recovery denied for any damages which could have been avoided by reasonable conduct on the part of the plaintiff.
  5. Failure to Take Advance Precautions
    1. Prior to accident - most commonly applies to seatbelt and helmet cases.
    2. Most courts allow evidence to reduce damages but not bar recovery.
  6. Assumption of Risk Generally
    1. Plaintiff must know that the risk is present
    2. He must understand its nature
    3. His choice to incur it must be free and voluntary.
    4. Theoretically a subjective analysis of what the plaintiff understood and agreed to.
  7. Implied Assumption of Risk
    1. Plaintiff voluntarily enters into some relation with defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation.
    2. Make sure to differentiate from situation where P has exposed himself to the risk of future harm, but has not consented to relieve the defendant of any future duty to act with reasonable care.
    3. Primary
      1. Really a no duty doctrine (i.e., in sports there is no duty to protect against dangers inherent to sport)
    4. Secondary
      1. Traditional approach, following knowing/understanding risk and voluntarily assuming it.
  8. Express Assumption of Risk
    1. Plaintiff has given express consent to relieve the defendant of an obligation of conduct towards him and to undergo risks of defendant's behavior.
    2. In contract situations, only applies where the bargaining power of both parties was relatively equal.
  9. Imputed Contributory Fault
    1. When a third party's negligence is attributed to the plaintiff.
    2. "Both ways" rule: wherever you are liable for someone else's negligence if you were the defendant you will be as the plaintiff (classic case: employee/employer relationship).
      1. Many states have an exception for car cases: even though owner would have been responsible for third party's neg. as a defendant, he is not as plaintiff.
    3. Derivative Claims
      1. If you would not have a claim without the injury to the other person would you still have claim? If yes, it should be derivative- means you take on the other persons negligence. Commonly wrongful death claim, loss of consortium.
  10. Statutes of Limitation
    1. What?
      1. First determine earliest possible date the SOL could run.
    2. When does it start running?
      1. At time of negligent act
      2. From the time of the injury.
      3. When the cause of action accrues (all elements of negligence must be met prima facie, so analysis may center on full damages being known)
    3. When is case "filed"?
      1. In Oregon, at "commencement of action" - includes both filing and service.
    4. Tolling
      1. Where the SOL does not begin to run, say because of youth or incapacity, or fraudulent concealment of tort.
    5. Discovery Rule
      1. The accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause.
    6. Continuous Torts
      1. where a tort involves a continuing or repeated injury, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.
  11. Statutes of Repose
    1. Absolute bar to the bringing of suit after a fixed period of time. Often will run from the time of the tortious act. Does not have the same flexibility as tolling with the SOL.
      1. Often found in medical malpractice.
  12. Immunities
    1. State
      1. Many states have done away with sovereign immunity, though legislatures have created areas of total immunity or limited liability (caps on damages).
    2. Federal
      1. Discretionary exception under the FTCA is very broad.
      2. Feres Doctrine: gov. not liable to servicemen who are on duty.
      3. Extension of Immunity for Defense Contractors, when
        1. The US approved reasonably precise specifications
        2. The equipment conformed to those specifications
        3. The supplier warned the US about the dangers in the use of the equipment that were known to the supplier but not the US.
          1. Some courts have applied the extension to all government contractors.

Federal Pre-emption

- Court always claims to be following congressional intent, but it is often hard to discern.

Three Categories

  1. Express
  2. Implied Conflict
    1. If a state conflicts with a federal law or policy, then the state law is invalid.
    2. "Stands as an obstacle" - some state regulations, while not literally conflicting with state law, stand in the way of enforcement of the law
  3. Field Prevention
  • There is a strong presumption against preemption.
    1. Family Immunities
      1. Spousal
        1. A third or more states still have some form of partial spousal immunity.
      2. Parental

Joint and Several Liability

  • Any defendant found to be partially negligent can be made to pay the entirety of the damages.
  • Still applies (at least partially) in a good share of the states.
  • Situations it arises:
    • Where defendants have acted in concert (racing on highway).
    • Common duty situations (bad breaks cause accident - both driver and owner can be held responsible).
    • Where independent acts of negligence have caused the plaintiff's injury.
  • Contribution mitigates (somewhat) the harshness of joint and several liability - one defendant could bring suit for contribution against the other defendant.
    • Pro rata contribution splits judgment equally.
    • Comparative fault contribution allows a defendant to collect everything but his fair share from the other defendant.
      • Comparative fault puts the burden of collecting from an insolvent or phantom defendant on the other defendant.
      • Indemnity vs. contribution: indemnity asks that other party be held totally liable.


  • Satisfaction: when a document is filed with the court acknowledging that the cause of action (the claim) has been satisfied.
    • Satisfaction is construed in some jurisdictions as evidence that the plaintiff's damages have been completely satisfied - avoid satisfactions if trying to pursue claim further against other defendants.
  • Release: waiver of any of defendant's liability.
    • At common law, release of one defendant was a release of all.
  • Covenant not to sue: willingness to forgo legal action against one or more of the parties.
    • Unlike release, did not waive cause of action against other defendants.
  • Pro tanto deduction: dollar for dollar subtraction of settlement amount from overall damages, before determining other parties' liability.
  • Comparative responsibility can be used in strict liability cases.


Duty vs. proximate cause: By using foreseeability argument, can place the judge's view of duty above the jury's determination of proximate cause. Acknowledge both approaches, but then settle on one and do analysis. Judge may say lack of foreseeability and hence no duty, while jury may say the proximate cause is too attenuated.

Unforeseeable consequence of negligent act.

  • Polemis directness/remote analysis - makes no difference.
  • wagon mound - unforeseeable kind of harm, no liability - makes all the difference.
    1. Kind of harm vs. extent of harm (extent of harm makes no difference) vs. manner of harm (mechanism - foreseeability makes no difference)
    2. If we characterize as kind of harm, then we can choose between Polemis or Wagon Mound rule. If we characterize as extent or manner of harm, liability is not affected.
    3. Plaintiff will argue it's an extent/manner of harm. Defendant will argue kind of harm
    4. So, deal first with characterizing kind vs. extent vs. manner. Then, if you come out as kind of harm, go through both Polemis and Wagon Mound analysis.

Intentional Infliction of Emotional Distress

  • Elements: 1) Intent (a) volitional act, + b) mental state (purposeful or with substantial certainty), 2) outrageous conduct, 3) causal link, 4) severe emotional distress

Categories of Tort Reform

  • Federal or State * - should we have a federalized system of tort recovery? - a fundamental issue of the structure of our government (not a substantive issue)
  • Caps
    1. Non-economic damages (emotional distress, etc.)
      1. Issue of constitutionality under state constitutions - some are struck down as unconstitutional.
    2. General cap on all damages
    3. Cap on punitive damages.
      1. Idea of absolute cap is less popular because it benefits mainly big business.
      2. Ratio limit - either under due process or state statutory cap.
      3. Based on financial statement of defendant.
  • Collateral Source Rule
    1. Traditionally favored plaintiff - many state legislatures have reversed as double dipping, except where one of insurance companies has subrogation rights.
  • Attorney's fees
    1. Loser pays - would discourage suits from lower and middle class people.
    2. Other proposal is to cap attorney's percentage of award.
    3. D believes plaintiff's bar needs to be more aggressive in enforcing ethical rules of only "reasonable" fees.

Residual justification - not an official term, but where there is no recognized privilege, a new privilege may be created (by the court) for particular circumstances.


  • General Negligence Duty (care of a reasonable person)
    1. Default rule.
  • Duty as alternative to legal causation.
    1. Palsgraf, Honeywell, et al.
  • Limited Duty
    1. No duty to act.
    2. Exceptions to no duty:
      1. Control instrumentality
      2. Prior conduct exception
      3. Special relationship
    3. Privity
    4. Negligent Infliction of emotional distress
      1. Must have some physical manifestation.
        1. Loose requirement.
      2. Impact requirement

Tort,*An injury; a wrong; (q. v.) hence the expression an executor de son tort, of his own wrong. Co. Lit. 158.

2. Torts may be committed with force, as trespasses, which may be an injury to the person, such as assault, battery, imprisonment; to the property in possession; or they may be committed without force. Torts of this nature are to the absolute or relative rights of persons, or to personal property in possession or reversion, or to real property, corporeal or encorporeal, in possession or reversion: these injuries may be either by nonfeasance, malfeasance, or misfeasance. 1 Chit. Pl. 133-4. Vide 1 Fonb. Eq. 4; Bouv. Inst. Index, h. t.; and the article Injury.

* From Bouvier's Law Dictionary, 1856 Edition. Please see Bouvier's Legal Abbreviations & Abbreviated References for help with obscure nomenclature & references.

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