Torts Outline

Torts: The Common Law Process
Professor Steenson
Fall Semester 2022
Cari Watson
Materials Used: office hours notes; lecture notes; Torts and Compensation casebook; Themis
Outlines; Torts Quick study guide; Quimbee outline; Quimbee website
I. 1INTENTIONAL TORTS INVOLVING PERSONAL INJURY
A. GENERALLY
A prima facie case for any intentional tort, including

those not involving personal injury, must include proof
of an act, intent, and causation.
1. Act
The act must be voluntary, meaning that the defendant
must have the state of mind that directed the physical
muscular movement. Failure to act when there is a duty
to do so also fulfills this element.
2. Intent
Van Camp v. McAfoos (Iowa 1968) pg.8
Garratt v. Dailey 279 P.2d (Wash 1955) pg.33-35
The defendant acts intentionally if:

i) He acts with the purpose of causing the
consequences of his act; or
ii) He acts knowing that the consequence
is substantially certain to result.
Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 1 (2010).
(Hereinafter, “Rest. 3d § xx.”)
Torts – Negligence Outline – Cari Watson 1

Statutory liability. Minn. Stat. § 540.18.
Monetary damages cannot exceed $1,000

This section does not apply to a person who has custody of any minor
under the authority of the human services or corrections department of the
state. Pg 36-39
Note: Intent is satisfied even if the actor does

not intend to cause harm to the victim.
a. Children and the mentally incompetent
A majority of courts hold that
both children and those who are mentally
incompetent can be held liable for
intentional torts if they either act with a
purpose or know the consequences of their
acts with a substantial certainty.
i. Minor must willfully or maliciously cause injury to

person or damage to property.
ii. The intent has to be attached to the consequence,

i.e., “injury” or “damage to property.”
Parental liability for the torts of their minor children
Common law rule
Parents are not vicariously liable for the torts of their

children simply by virtue of being parents.
Vicarious liability- responsibility upon one person for the

failure of another, with whom the person has a special
relationship.(parent child, employer employee).
Wantonly- recklessly or negligently

Maliciously- In a spirit of ill will
Willfully- Voluntary and intentional, but not necessarily
malicious
Statutes imposing parental liability exist in most states but

are usually limited in two ways:
(a) The child’s tort must have been committed

willfully and wantonly

(b) The damages that may be obtained are limited
Often the parents will have an insurance policy that will

cover children living in a household. Such a policy will pay
for judgment.
b. Transferred intent

Transferred intent exists when a person
intends to commit an intentional tort against
one person, but instead commits either:
i) A different intentional
tort against that person;
ii) The intended tort against a
different person; or
iii) A different intentional tort
against a different person.
Example 1: If the defendant throws a
hardball in the direction of the
plaintiff, intending only to scare her
(assault), but the ball strikes the
plaintiff, the defendant is liable to
the plaintiff for the battery. The
intent to commit one intentional
tort (the assault) suffices to satisfy
the intent requirement for another
intentional tort, the battery.
Conversely, if the defendant intends to
strike the victim and cause contact but
instead misses and scares the plaintiff,
the intent to cause the battery suffices
for the intent required for the assault.
punch intending to strike the man
standing next to him, but he misses and
instead strikes a third party, then the
intent to commit a battery on the man
suffices to complete the intent
requirement for the battery to the third
party under the doctrine of transferred
intent.

punch intending to strike the man
standing next to him, and he misses both
that man and a third party who is
standing nearby, but he causes that
third party to experience apprehension
of an imminent harmful or offensive
bodily contact, then the intent to
commit a battery on the man “transfers”
and suffices to complete the tort of
assault against the third party.
Transferred intent applies only when the
intended tort and the resulting tort are
among the following: battery, assault,
false imprisonment, trespass to
land, and trespass to chattels. Note,
in particular, that transferred
intent does not apply to the tort of
intentional infliction of emotional
distress.
3. Causation
Causation exists when the resulting harm was legally
caused by the defendant’s act. Causation is also
established when the defendant’s conduct is a
substantial factor in creating the harm.
B. BATTERY
Snyder v. Turk 627 N.E 2d 1053 (Ohio Ct. App. 1993) (angry surgeon case) Pg. 27-28
Cohen v. Smith 648 N.E.2d 329 (Ill App ct. 1995) (religious hospital nudity case) Pg.
28-30
1. Elements
A defendant is liable to the plaintiff for battery when
he:
i) Causes a harmful or offensive contact with
the person of another; and
ii) Acts with the intent to cause such contact
or the apprehension of such contact.

2. Lack of Consent
There is no battery if the plaintiff consented to the
act, either expressly or by virtue of participating in
a particular event or situation (such as being bumped
on a crowded subway or playing in a football
game). See § II.A. Consent, infra.
3. Harmful or Offensive Contact
Contact is harmful when it causes injury, physical
impairment, pain, or illness.
Contact is offensive when a person of ordinary
sensibilities (i.e., a reasonable person) would find
the contact offensive (objective test).
Note that a defendant may be liable if he is aware that
the victim is hypersensitive but proceeds to act
nonetheless. In such a case, the fact that a
reasonable person would not find the contact offensive
is not a defense.
The plaintiff need not be aware of the contact when it
occurs in order to recover.
Example: If an operating room attendant inappropriately
touches the patient while she is under the effect of
anesthesia, there may be a battery even though the
patient was not aware of the touching.
4. Plaintiff’s Person
Contact with anything connected to the plaintiff’s
person qualifies as contact with the plaintiff’s person
for the purposes of battery (e.g., a person’s clothing,
a pet held on a leash, or a bicycle ridden by the
plaintiff).
5. Causation
The act must in fact result in contact of a harmful or
offensive nature. A defendant who sets in motion a
chain of events that causes contact with the plaintiff,
whether the contact is direct or indirect, is liable
(e.g., a tripwire set by the defendant that causes the
plaintiff to fall).
6. Intent

To act intentionally, a defendant must act with either
(i) the purpose of bringing about the consequences of
that act or (ii) the knowledge that the consequences
are substantially certain to occur.
In some cases, depending on the jurisdiction and the
factual context, a defendant may be liable if he
intends merely to bring about the contact. While the
contact must be harmful or offensive, the defendant
need not intend that result (single intent rule). In
other cases, depending on the jurisdiction and the
factual context, a defendant may be required not only
to intend to bring about a contact, but also to intend
that the contact be harmful or offensive (double intent
rule).
The doctrine of transferred intent applies to battery.
7. Damages
a. No proof of actual harm is required
No proof of actual harm is required; the plaintiff
may recover nominal damages even though no actual
damage occurred (to vindicate her right to
physical autonomy).
b. Punitive damages
Many states allow recovery of punitive damages if
the defendant acted outrageously or with malice
(i.e., a wrongful motive, or a conscious or
deliberate disregard of a high probability of
harm). See § IV.F.7. Punitive Damages, infra.
c. Defendant liable for unforeseen consequences
Under the thin (“eggshell”) skull rule, the
defendant is not required to foresee the extent of
damages in order to be held liable for all
damages. The defendant is liable for any damages
that ensue, even if she did not intend them and
even if they could not have been reasonably
foreseen.
Example: If the defendant inappropriately pinches
a stranger on a bus, he will be liable for
battery. If it then turns out that the victim is a
hemophiliac and bleeds to death, the defendant

will be liable for all damages appropriately
awarded for the wrongful death.
C. ASSAULT
An assault is the plaintiff’s reasonable apprehension

of an imminent harmful or offensive bodily contact
caused by the defendant’s action or threat with the
intent to cause either the apprehension of such contact
or the contact itself.
White v. Muniz 999 P.2d 814 (Colo. 2000)

(dementia battery case)
Baska v. Scherzer, 156 P .3d617 (Kan 2007)

(high school party fight case) Pg. 42
Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991)

Pg. 44
Minn. Stat. s540.18.rtf

Monetary damages cannot exceed $1,000
This section does not apply to a person who has custody of any minor under the
authority of the human services or corrections department of the state.
Pg 36-39
1. Bodily Contact

Bodily contact is not required for assault.
The prototypical assault occurs when the plaintiff sees
the defendant throw a punch at him. Regardless of
whether the punch connects (and therefore causes a
battery), the apprehension of the contact is sufficient
for assault.
2. Reasonable Apprehension
A plaintiff’s apprehension must be reasonable. Unlike
with battery, the plaintiff must be aware of or have
knowledge of the defendant’s act.
The defendant’s apparent ability to cause harm (e.g., a
“real-looking” toy gun) can be sufficient to place the
plaintiff in apprehension of harm.

Even if the victim is confident that he can prevent the
threatened harm, there may still be an assault.
Example: A 100-pound man tries to hit a 300-pound
professional football player. Even though the football
player is not afraid of the man, is confident that he
can avoid being hit, and does, in fact, avoid being
hit, there is still an assault. If however, the man
aims a gun at the football player, but the football
player knows that the gun is not loaded, there is no
assault because the football player knows that the
threat is incapable of being performed at that time.
3. Imminence
The threatened bodily harm or offensive contact must
be imminent, i.e., without significant delay. Threats
of future harm are insufficient, as are threats made by
a defendant too far away to inflict any harm.
Example: If the defendant calls and threatens the
plaintiff from across the city, then the threat is not
imminent and therefore there is no assault.
4. Mere Words
It is sometimes said that “mere words alone do not
constitute an assault.” However, words coupled with
conduct or other circumstances may be sufficient. If
the defendant is able to carry out the threat
imminently and takes action designed to put the victim
in a state of apprehension, then there may be an
assault.
Example: If the defendant sneaks up behind the
plaintiff in a dark alley and utters in a menacing
voice, “Your money or your life,” then an assault may
be complete.
5. Intent
The defendant must intend to cause the plaintiff’s
apprehension of an imminent harmful or offensive
contact or intend to cause harmful or offensive bodily
contact with the victim.
The defendant’s own words, however, can negate the
intent.

Example: If the defendant says, “If you were not such a
good friend, I would punch you,” then there is no
assault.
The doctrine of transferred intent applies to assault.
6. Damages
No proof of actual damages is required. The victim can
recover nominal damages and, in appropriate
cases, punitive damages. If the plaintiff
sustains damages from physical harm, such as a heart
attack resulting from the assault, then he may recover
these as well.
D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
A defendant is liable for intentionally or recklessly

acting with extreme or outrageous conduct that causes
the plaintiff severe emotional distress.
1. Intent
The defendant must intend to cause severe emotional
distress or must act with recklessness as to the risk
of causing such distress. Transferred
intent does not apply to intentional infliction of
emotional distress.
2. Extreme or Outrageous Conduct
Conduct is extreme or outrageous if it exceeds the
possible limits of human decency, so as to be entirely
intolerable in a civilized society. Liability does not
extend to mere insults, threats, or indignities. A
defendant’s conduct must be such that ordinary people
would conclude that it is “outrageous.” E.g., “utterly
intolerable in a civilized community”
Example: As a practical joke, the defendant tells the
plaintiff that his wife was killed in an accident.
Courts are more likely to find a defendant’s abusive
language and conduct to be extreme and outrageous if
either:
i) The defendant is in a position of authority
or influence over the plaintiff, such as a police
officer, employer, or school official, or

traditionally an innkeeper or an employee of a
common carrier; or
ii) The plaintiff is a member of a group with
a known heightened sensitivity (e.g., young
children, pregnant women, or elderly persons).
3. Acts Directed Toward Third Parties
When the defendant’s conduct is directed at a third-
party victim, that defendant is liable if he
intentionally or recklessly causes severe emotional
distress to:
i) A member of the victim’s immediate
family who is present at the time of the
defendant’s conduct (and the defendant is aware of
such presence), whether or not such distress
results in bodily injury; or
ii) Any other bystander who is present at the
time of the conduct (and the defendant is aware of
such presence), if the distress results in bodily
injury.
Restatement (Second) of Torts § 46 (1965).
(Hereinafter, “Rest. 2d § xx.”)
Example: If the defendant draws a pistol and
threatens to shoot a woman in her husband’s
presence, and the husband suffers severe emotional
distress, he may recover.
EXAM NOTE: This section applies to bystander
recovery in general. It is not limited to
situations in which a third-party victim
experiences physical injury.
4. Causation
The plaintiff may establish causation by a showing that
the defendant’s actions were a substantial factor in
creating the plaintiff’s distress.
Special rules of causation apply in cases in which a
bystander makes a claim of severe emotional distress.
When the defendant has caused severe physical harm to a
third party and the plaintiff suffers severe emotional
distress as a result, the plaintiff can recover if:

i) The plaintiff was present when the defendant
inflicted the harm;
ii) The plaintiff was a close relative (i.e., a
member of the same immediate family) of the
injured person; and
iii) The defendant had knowledge of both of the
above facts.
The plaintiff does not need to prove the above
facts if the defendant’s design or purpose was to
cause severe distress to the plaintiff.
5. Damages
The plaintiff must prove severe emotional distress
beyond what a reasonable person could endure.
In many cases, the very extreme and outrageous
character of the defendant’s conduct itself provides
evidence that the plaintiff experienced severe mental
distress. In other words, the more extreme the
defendant’s conduct, the less evidence is required of
the severity of the plaintiff’s emotional distress.
If the plaintiff is hypersensitive, however, and
experiences severe emotional distress unreasonably,
then there is no liability unless the defendant knew of
the plaintiff’s heightened sensitivity.
Most courts do not require the plaintiff to prove
physical injury except in the case of bystander
recovery when the plaintiff is not a member of the
immediate family of the person to whom the defendant’s
extreme and outrageous conduct is personally directed
(see § 3 Acts Directed Toward Third Parties, above).
E. FALSE IMPRISONMENT
Second Restatement of Torts § 35 (1965) (R3 as well)
McCann v. Wal-mart Stores
False imprisonment results when a person acts:

i) Intending to confine or restrain another
within boundaries fixed by the actor;

ii) Those actions directly or indirectly result
in such confinement; and
iii) The other is conscious of the
confinement or is harmed by it.
1. Confined Within Boundaries
The plaintiff must be confined within a bounded area in
which the plaintiff’s freedom of movement in all
directions is limited. The bounded area may be large
and need not be stationary. An area is not bounded if
there is a reasonable means of safe escape.
2. Methods of Confinement
The defendant may confine or restrain the plaintiff by
the use of physical barriers, physical force, direct or
indirect threats (to the plaintiff, a third party, or
the plaintiff’s property), or by the invalid use of
legal authority, duress, or the failure to provide a
reasonable means of safe escape.
Shopkeeper’s Privilege: A shopkeeper’s reasonable (in
both duration and manner) detention of a suspected
shoplifter is not an invalid use of authority and hence
is not a false imprisonment.
Furthermore, a court may find that the defendant has
confined the plaintiff when she has refused to perform
a duty to release the plaintiff from an existing
confinement or provide a means of escape.
Example: If a child accidentally locks herself in a
restroom in a restaurant, the restaurant may be liable
if it intentionally fails to assist her in unlocking
the door to obtain her release.
The defendant’s use of moral pressure or future threats
does not constitute confinement or restraint. The
plaintiff is not imprisoned if she submitted willingly
to confinement.
a. Actual force
b. Threat of force
c. Duress
d. Breach of a legal duty to release

3. Time
The length of time of the confinement or restraint is
immaterial, except as to the determination of the
extent of damages.
4. Intent
The defendant must act with the purpose of confining
the plaintiff or act knowing that the plaintiff’s
confinement is substantially certain to result.
If the confinement is due to the defendant’s negligence
rather than his intentional acts, then the defendant
may be liable under the rules governing negligence but
not under the intentional tort of false imprisonment.
If the imprisonment occurs by pure accident and
involves neither the defendant’s intent nor his
negligence, then there is no recovery.
The doctrine of transferred intent applies to false
imprisonment.
5. Knowledge of confinement
Most courts hold that the plaintiff must be aware of
her confinement at the time it occurs. The Second
Restatement provides that the plaintiff must either be
aware of her confinement at the time it occurs or must
suffer some actual harm from the confinement. Rest. 2d
§ 42.
6. Damages
It is not necessary to prove actual damages (except
when the plaintiff is unaware of the confinement).
Punitive damages may be imposed in appropriate cases.
II. DEFENSES TO INTENTIONAL TORTS INVOLVING PERSONAL INJURY
A. CONSENT
1. Express Consent

The plaintiff expressly consents if she, by words or
actions, manifests the willingness to submit to the
defendant’s conduct. The defendant’s conduct may not
exceed the scope of the consent.

Robins v. Harris 769 N.E.2d 586 (Ind. 2002)(inmate sues jailer for having sex
with her)
Kaplan v. Mamelak 162 (Cal . App. 4th 637 2008)(Dr operated on wrong
herniated disk)
Doe v. Johnson 817F. Supp 1382 (W.D. Mich. 1993)(P sues D for having sex with
her and not disclosing he had HIV)
a. Mistake
Consent by mistake is valid consent unless the
defendant caused the mistake or knew of it
and took advantage of it.
b. Fraud
Consent induced by fraud is invalid if it goes to
an essential matter. If the fraud that induced
the consent goes only to a collateral matter, then
the consent is still valid.
c. Duress
Consent given while under duress (physical force
or threats of physical force) is not valid. The
threat, however, must be of present action, not of
future action. In general, threats of economic
duress will not be enough to render a plaintiff’s
consent invalid.
2. Implied Consent
The plaintiff’s consent is implied when the plaintiff
is silent (or otherwise nonresponsive) in a situation
in which a reasonable person would object to the
defendant’s actions.
a. Emergency situation
When immediate action is required to save the life
or health of a patient who is incapable of
consenting to treatment, such consent is
ordinarily unnecessary. Courts generally say that
consent is “implied in fact,” but it probably is
more accurate to say that the treatment is
privileged.

Even in an emergency situation, however, a
competent and conscious patient’s right to refuse
treatment cannot be overridden.
b. Injuries arising from athletic contests
Consent may also be implied by custom or usage
(e.g., participation in a contact sport). The
majority of jurisdictions that have considered the
issue of when a participant in an athletic contest
can recover have concluded that the injured player
can recover only for a reckless disregard of a
player’s safety, such as a violation of a safety
rule designed primarily to protect participants
from serious injury.
c. Mutual consent to combat
In the case of boxing or prizefighting, most
courts hold that the plaintiff consents to
intentional torts when he engages in the fighting,
and he is therefore precluded from recovering for
any injuries sustained.
In the case of street-fighting and other illegal
activities, the courts are divided.
A majority holds that consent to such acts is not
a defense because one cannot consent to a criminal
act. The Second Restatement and a significant
minority of courts now hold to the contrary,
however. Rest. 2d § 60.
3. Capacity
Lack of capacity resulting from youth, intoxication, or
incompetence may undermine the validity of one’s
consent.
B. SELF-DEFENSE
1. Use of Reasonable Force

A person may use reasonable force to defend against an
offensive contact or bodily harm that she reasonably
believes is about to be intentionally inflicted upon
her. The force used in self-defense must be reasonably
proportionate to the anticipated harm. A person’s
mistaken belief that she is in danger, so long as it is
a reasonable mistake, does not invalidate the defense.

2. Use of Deadly Force
The defendant may use deadly force only if she has a
reasonable belief that force sufficient to cause
serious bodily injury or death is about to be
intentionally inflicted upon her.
3. Obligation to Retreat
A person is not required to retreat under the majority
rule, but during the past generation, there was a trend
toward requiring retreat before using deadly force
unless the defendant was in (or within the curtilage
of) her own home. Under the Second Restatement, a
person has a duty to retreat before she may use deadly
force in defense, if she can do so safely.
However, more recently, about half of the states have
adopted “stand your ground” statutes that extend the
“no retreat” concept to any place the defendant might
legally be by providing that a person has no duty to
retreat and has the right to stand her ground and meet
force with force, including deadly force, if she
reasonably believes it is necessary to do so to prevent
death or great bodily harm.
4. Initial Aggressor
The initial aggressor is not entitled to claim self-
defense unless the other party has responded to non-
deadly force with deadly force.
5. Third-Party Injuries
The actor is not liable for injuries to bystanders that
occur while he is acting in self-defense, so long as
those injuries were accidental, rather than deliberate,
and the actor was not negligent with respect to the
bystander.
C. DEFENSE OF OTHERS
One is justified in using reasonable force in defense

of others upon a reasonable belief that the defended
party would be entitled to use self-defense. It is no
longer required that the force be used to defend a
member of the defendant’s own family or someone
otherwise under the defendant’s legal protection. The
defender may use force that is proportionate to the

anticipated harm to the other party. He is not liable
for acting on a mistaken belief that the third party is
in danger as long as his belief is reasonable.
D. DEFENSE OF PROPERTY
1. Reasonable Force Allowed

A person may use reasonable force to defend her
property if she reasonably believes it is necessary to
prevent tortious harm to her property.
2. Use of Deadly Force Not Allowed
Deadly force may not be used merely in defense of
property. A person may never use a deadly mechanical
device (e.g., a spring-loaded gun) to defend her
property.
3. Reasonable Force to Prevent Intrusion Upon Real
Property
A possessor of land may use reasonable force to prevent
or terminate another’s intrusion upon her land.
However, the possessor may not use force to prevent or
terminate the visitor’s intrusion on her land if the
visitor is acting under necessity (see § III.C.6.
Necessity as a Defense to Trespass, infra). In
addition, a landowner is generally entitled to use
reasonable force only after making a request that the
trespasser desist and the trespasser ignores the
request. Such a request is not required if the
landowner reasonably believes that a request will be
useless or that substantial harm will be done before it
can be made. Restatement (Second) of Torts §
77 (1965).
The land possessor is not liable for using force if she
makes a reasonable mistake with respect to an intrusion
occurring on her land.
4. Recapture of Chattels
A person may use reasonable force to reclaim her
personal property that another has wrongfully taken.
If the original taking was lawful (e.g., a bailment)
and the current possessor of the property has merely
retained possession beyond the period of time to which

the owner consented, then only peaceful means may be
used to reclaim the chattel.
5. Force to Regain Possession of Land
At common law, an owner or possessor of land was
permitted to use reasonable force to regain possession
of that land from one who had wrongfully taken
possession of it. However, modern statutes provide
procedures for recovery of realty; therefore, the use
of force is no longer allowed.
E. PARENTAL DISCIPLINE
A parent may use reasonable force or impose reasonable

confinement as is necessary to discipline a child,
taking into consideration the age of the child and the
gravity of the behavior. An educator has the same
privilege, unless the parent places restrictions on
that privilege.
F. PRIVILEGE OF ARREST
1. Felony
a. Arrest by private citizen
A private citizen is privileged to use force
(e.g., commit a battery or false imprisonment
tort) to make an arrest in the case of a felony if
the felony has in fact been committed and the
arresting party has reasonable grounds to suspect
that the person being arrested committed it.
It is a defense to make a reasonable mistake as to
the identity of the felon but not as to
the commission of the felony.
b. Arrest by police officer
A police officer must reasonably believe that a
felony has been committed and that the person she
arrests committed it. Unlike a private citizen, a
police officer who makes a mistake as to the
commission of a felony is not subject to tort
liability.
2. Misdemeanor

In the case of a misdemeanor, a police officer may make
an arrest if the misdemeanor is being committed or
reasonably appears about to be committed in the
presence of the officer. When the person effecting the
arrest is a private citizen, the misdemeanor must also
be a breach of the peace.
III. HARMS TO PERSONAL PROPERTY AND LAND
A. TRESPASS TO CHATTELS
1. Definition
A defendant is liable for trespass to chattels (i.e.,
tangible personal property) if she intentionally
interferes with the plaintiff’s right of possession by
either:
i) Dispossessing the plaintiff of the chattel;
or
ii) Using or intermeddling with the plaintiff’s
chattel.
2. Intent
Only the intent to do the interfering act is necessary;
the defendant need not have intended to interfere with
another’s possession of tangible property.
The doctrine of transferred intent applies to trespass
to chattels.
3. Appropriate Plaintiffs
An action for trespass to chattels may be brought
by anyone with possession or the immediate right to
possession of the chattel.
4. Mistake
Mistake by the defendant about the legality of his
actions is not a defense.
5. Damages
In a case of dispossession, a plaintiff may recover
for:

i) The actual damages caused by the
interference; and
ii) The loss of use.
In circumstances of use or intermeddling, the
plaintiff may recover only when there are actual
damages.
6. Remedy
The plaintiff may be entitled to compensation for
the diminution in value or the cost of repair.
B. CONVERSION
1. Definition
A defendant is liable for conversion if
he intentionally commits an act depriving the plaintiff
of possession of her chattel or interfering with the
plaintiff’s chattel in a manner so serious as to
deprive the plaintiff of the use of the chattel. The
plaintiff’s damages are the chattel’s full value at the
time of the conversion.
Only personal property and intangibles that have been
reduced to physical form (e.g., a promissory note) can
be converted.
2. Intent
The defendant must only intend to commit the act that
interferes; intent to cause damage is not necessary.
Mistake of law or fact is no defense (e.g., a purchaser
of stolen goods is liable to the rightful owner).
Accidentally damaging the plaintiff’s chattel is
not conversion if the defendant had permission to use
the property.
3. Interference
The defendant interferes with the plaintiff’s chattel
by exercising dominion or control over it. Examples of
acts of conversion include wrongful acquisition,
transfer, or detention; substantially changing;
severely damaging or destroying; or misusing the
chattel.

Note that if the original acquisition of the chattel
was not wrongful, then the plaintiff must demand the
return of the chattel before she sues for conversion.
4. Distinguishing Conversion From Trespass to
Chattels
There is no specific rule as to what behavior
constitutes conversion, as opposed to trespass to
chattels; it is a matter of degree of seriousness. The
following factors are considered:
i) The duration and extent of the interference;
ii) The defendant’s intent to assert a right
inconsistent with the rightful possessor;
iii) The defendant’s good faith;
iv) The expense or inconvenience to the
plaintiff; and
v) The extent of the harm to the chattel.
Generally, the greater the degree of these
factors, the greater the likelihood that a
conversion has occurred. Conversion is an
exercise of dominion or control over the
plaintiff’s personal property such that the court
is justified in requiring the defendant to pay the
plaintiff the full value of the property.
Example: If an embittered defendant steals his ex-
girlfriend’s car and drives it into a lake, that
is conversion. If he merely hits the hood of her
car once with a hammer, that is trespass to
chattels.
5. Damages
The plaintiff may recover damages in the amount of the
full value of the converted property at the time of the
conversion. Alternatively, the plaintiff may bring an
action for replevin to recover the chattel.
C. TRESPASS TO LAND
Trespass to land occurs when the

defendant’s intentional act causes a physical
invasion of the land of another.

1. Intent
The defendant need only have the intent to enter the
land (or to cause a physical invasion), not the intent
to commit a wrongful trespass. In other words, the
defendant need not know that the land belongs to
another. Mistake of fact is not a defense.
Example: Assume that an erroneous survey of the
defendant’s property leads her to believe that an
annoying cherry tree is on her property, when in fact
it is on her neighbor’s property. She intentionally
enters the space where the tree is located and cuts it
down. Even though she reasonably believed that the
tree was on her property, she still will be liable for
trespass.
The doctrine of transferred intent applies to trespass
to land.
2. Physical Invasion
The defendant need not personally enter onto the
plaintiff’s land; intentionally flooding the
plaintiff’s land, throwing rocks onto it, or
intentionally emitting particulates into the air over
the land will each suffice.
Additionally, the defendant’s failure to leave the
plaintiff’s property after his lawful right of entry
has expired constitutes a physical invasion.
A trespass may be committed on, above, or below the
surface of the plaintiff’s land.
3. Appropriate Plaintiffs
Because it is the right to possession that is being
protected, anyone in actual or constructive possession
of land may bring an action for trespass (e.g., owner,
lessee, or even an adverse possessor).
4. Distinguished From Nuisance
Trespass always requires an invasion or intrusion of
land; nuisance may or may not involve intrusion.
An action for trespass protects the possessor’s
interests in the land; an action for nuisance protects

the use and enjoyment of land. See also § III.D.
Nuisance, infra.
If no physical object enters onto the plaintiff’s land
(e.g., the defendant’s floodlights project onto the
plaintiff’s land or damage results from the defendant’s
blasting), then the case is generally treated as a
nuisance or strict liability action (discussed in §§
III.D. Nuisance and V. Strict Liability, infra).
5. Damages
No proof of actual damages is required. The defendant
is liable for all consequences of the trespass, though,
even if she had no reason to foresee them.
6. Necessity as a Defense to Trespass
The privilege of necessity is available to a person who
enters onto the land of another or interferes with
another’s personal property in order to prevent injury
that is substantially more serious than the invasion or
interference itself. The privilege of necessity
applies only to intentional torts to property.
a. Private necessity
Vincent v. Lake Erie Transportation Co. 124 N.W. 221 (Minn. 1910)
(Steamship owned by the defendant was at a dock unloading cargo but
could not leave because of bad weather. When the weather came through
it slammed the ship against the dock doing $500 worth of damage.)
A defendant who acts to prevent a threatened

injury from some source of nature or other
independent cause that is not connected with the
plaintiff is said to be acting under necessity.
Defendants acting under necessity have the right
to use the property of others to save their own
lives or more valuable property. Private
necessity is a qualified privilege to protect a
limited number of people.
1) Liability for damages caused while
acting under private necessity
The property owner upon whose property the
defendant (acting under necessity) trespasses
cannot use self-help to exclude the defendant

as a trespasser. The property owner cannot
recover nominal or punitive damages.
However, most jurisdictions hold that
necessity is an incomplete privilege. The
property owner is entitled to recover actual
damages even though the defendant is not a
trespasser.
Example: Assume that the defendant docks her
valuable boat on the plaintiff property-
owner’s dock during a severe storm in order
to prevent the destruction of the boat.
During the storm, the winds knock the boat
against the dock causing damage to the dock.
The defendant will be liable to the dock
owner for the actual damages.
b. Public necessity
Surocco v. Geary 3 Cal. 69 (1853)D blew up and destroyed P’s house to

prevent spread of fire.
Under the doctrine of public necessity, private

property may be intruded upon or destroyed when
necessary to protect a large number of people from
public calamities, such as the spreading of a
fire, the spreading of disease, or the advance of
a hostile military force.
The privilege is absolute. As long as the
defendant acts reasonably, he is not liable for
any damage to the property. He is not liable even
if the original entry was not necessary, as long
as he reasonably believed that the necessity
existed. The privilege lasts only as long as the
emergency continues.
The privilege is available to private citizens or
public officials, should the plaintiff seek to
hold a public official personally liable.
c. Application to torts affecting damages to
chattels
Necessity and public necessity also are privileges
to the torts alleging damage to personal property,

i.e., trespass to chattels and conversion. See §§
III.A-B, supra.
D. NUISANCE
1. Private Nuisance

a. Definition
A private nuisance is a thing or activity
that substantially and
unreasonably interferes with another
individual’s use or enjoyment of his land.
b. Nature of the defendant’s conduct
The interference must be intentional, negligent,
reckless, or the result of abnormally dangerous
conduct to constitute nuisance.
c. Appropriate plaintiffs
Anyone with possessory rights in real property may
bring a nuisance claim.
d. Substantial interference
A substantial interference is one that would
be offensive, inconvenient, or annoying to a
normal, reasonable person in the community. A
person with special sensitivities can recover only
if the average person would be offended,
inconvenienced, or annoyed. Conversely, a “thick-
skinned” plaintiff who is not offended,
inconvenienced, or annoyed is nevertheless
entitled to recover if an average reasonable
person would be, although the amount of damages
may be affected.
e. Unreasonable interference
The interference is unreasonable if the injury
caused by the defendant outweighs the
usefulness of his actions.
f. Distinguished from trespass
1) Physical invasion

Trespass requires a physical invasion of the
plaintiff’s property. Nuisance does not
require physical invasion, but physical
invasion may constitute a nuisance.
Example: If the defendant’s factory emits
particulates that settle on the plaintiff’s
property, then the defendant may be liable
for both trespass and private nuisance.
2) Substantial interference
Private nuisance requires substantial
interference with the plaintiff’s use and
enjoyment of her property. Trespass,
however, does not require a substantial
intrusion.
Example: A defendant’s merely walking onto
the plaintiff’s land, if unprivileged and not
consented to, is a trespass.
3) Duration
Generally, a nuisance is continuous. A
trespass may be a one-time event, episodic,
or continuous.
g. Access to light
Historically, courts have refused to find the
obstruction of sunlight as creating a private
nuisance.
h. Defenses to private nuisance
Apart from challenging the elements of nuisance,
the defenses available to a defendant turn on
whether the defendant’s conduct is intentional,
negligent, or abnormally dangerous. For example,
the plaintiff’s negligence or assumption of the
risk may be a defense to a nuisance (or reduce
recovery in a comparative fault jurisdiction)
resulting from the defendant’s negligence.
1) Regulatory compliance
The fact that a defendant’s behavior is in
compliance with a statute, local ordinance,
or administrative regulation is not a

complete defense to a nuisance action.
However, such statutory or regulatory
compliance may be admitted as evidence as to
whether the interference with the plaintiff’s
use and enjoyment of her land is
unreasonable. For example, zoning
regulations are typically regarded as
admissible evidence in actions for nuisance,
but they are not determinative.
2) Coming to the nuisance
It is generally not a defense that the
plaintiff “came to the nuisance” by
purchasing property in the vicinity of the
defendant’s premises with knowledge of the
nuisance operated by the defendant. However,
the fact that the plaintiff moved to the
nuisance is not irrelevant; it may be
considered by the jury in determining whether
the plaintiff can recover for the nuisance.
In other words, the plaintiff’s coming to the
nuisance does not entitle the defendant to
judgment as a matter of law, but it
is evidence that the jury may consider.
Conversely, ownership of land prior to the
defendant’s entry into the neighborhood will
not, by itself, make the defendant’s action a
nuisance. The test is whether the
defendant’s action is unreasonable.
2. Public Nuisance
a. Definition
A public nuisance is an unreasonable
interference with a right common to the
general public. (Note: Public nuisance does
not necessarily involve land, but it is
included in this part of the outline because
of its common historical roots with private
nuisance.) Typical examples of public
nuisance include air pollution, pollution of
navigable waterways, interference with the
use of public highways, and interference with
the public’s use of parks or other public
property.

A private citizen has a claim for public
nuisance only if she suffers harm that is
different in kind from that suffered by
members of the general public.
Example 1: If the defendant pollutes a river,
a plaintiff who fishes in the river cannot
bring a claim for public nuisance. However,
a plaintiff who operates a fishing camp on
the banks of the river and suffers a
substantial economic loss may do so.
Example 2: A dynamiting operation causes
rocks to block a public highway. All members
of the community are harmed by the nuisance.
Consequently, a driver who suffers economic
harm, such as a loss of business, due to the
blockage, cannot recover.
Example 3: Same facts as in Example 2, but in
this case, a rock strikes the driver’s car,
cracking the windshield. The driver has
suffered harm different from the general
community and may bring an action in public
nuisance.
In most instances, state statutes or local
ordinances specifically declare something to
be a public nuisance. Things declared to be
a public nuisance by state statutes are far
more varied than those described above,
including such things as running a house of
ill repute or a disorderly tavern, gambling
on Sundays, or growing certain types of
thorny bushes.
Public authorities can either (i) seek
injunctive relief to abate (prevent the
continuation of) the public nuisance, or (ii)
criminally prosecute the defendant.
b. Applying principles derived from the law
of private nuisance
The law of public nuisance is extremely vague
and varies greatly from one jurisdiction to
another. However, the modern trend is to
transpose much of the law governing private
nuisance onto the law of public nuisance.

For example, most courts hold that a
defendant’s conduct must be (i) intentional
and unreasonable, (ii) negligent or reckless,
or (iii) actionable under the principles
governing abnormally dangerous activities.
Furthermore, the defenses available to
defendants in private nuisance actions
typically apply in public nuisance actions.
3. Remedies for Nuisance
a. Damages
The usual remedy for nuisance is damages. Damages
include any depreciation in the value of the
property. All resulting harm is recoverable,
including damages for reduction in the value of
real property, personal injury, and harm to
personal property.
1) Utility of the defendant’s conduct
Even if the utility of the defendant’s
conduct outweighs the gravity of the harm,
damages (but not injunctive relief) may be
available if the harm is serious and the
financial burden of compensating for the harm
would not make the defendant’s continuing
conduct unfeasible. In other words, while it
may be reasonable for the defendant to engage
in the conduct, it is unreasonable for the
defendant to do so without paying for the
harm done.
2) Continuing nuisance
If the nuisance is a continuing one and the
court deems it “permanent,” then it will
award the plaintiff all past and future
damages, which prevents plaintiffs from
returning to the court to collect damages in
the future.
Occasionally, courts award temporary
damages measured by the damages that have
occurred prior to trial and within the
statute of limitations. In these instances,
plaintiffs may return to the court in the

future to collect additional temporary
damages if the nuisance continues.
b. Injunctive relief
If monetary damages are inadequate and the
nuisance would otherwise continue, then courts may
grant injunctive relief. In determining whether
an injunction is appropriate, the courts
will “balance the equities,” that is, weigh the
social utility of the defendant’s conduct against
the harm caused to the plaintiff and others.
However, the court need not consider the relative
hardships if the defendant’s sole purpose was to
cause harm to the plaintiff or to violate the
common standards of decency (sometimes called a
“spite nuisance”).
4. Abatement
a. Private nuisance
A person may enter another’s land in order to
abate a private nuisance after giving the
defendant notice of the nuisance, after which the
defendant refuses to act. The amount of force
used may be only that which is reasonable to abate
the nuisance; the plaintiff is liable for any
additional damage.
b. Public nuisance
One who is entitled to recover for a public
nuisance has the right to abate that nuisance by
self-help, as one would with a private nuisance.
However, in the absence of unique injury, a public
nuisance may be abated only by public authority.

Torts – Negligence Outline
1
I. Elements of negligence. DBCSD
A. Duty
B. Breach of duty
C. Cause in fact
D. Scope of liability (proximate cause)

E. Damages
II. Duty
A. In general, a duty of care is owed to all foreseeable

persons who may be injured by the defendant’s failure to
follow a reasonable standard of care. Restatement (Third) of
Torts: Liability for Physical Harm § 7 (2010):
An actor ordinarily has a duty to exercise reasonable

care when the actor's conduct creates a risk of physical
harm.
In exceptional cases, when an articulated countervailing

principle or policy warrants denying or limiting
liability in a particular class of cases, a court may
decide that the defendant has no duty or that the
ordinary duty of reasonable care requires modification.
B. Other formulations
D owes a duty where D creates a foreseeable risk of

injury. This is the predominant view.
Cardozo (majority) view

The majority rule is that a duty of care is owed to
the plaintiff only if she is a member of the class of
persons who might be foreseeably harmed (sometimes
called “foreseeable plaintiffs”) as a result of the
defendant’s negligent conduct. According to Judge
Cardozo’s majority opinion in Palsgraf v. Long Island
R. R. Co., 162 N.E. 99 (N.Y. 1928), the defendant is
liable only to plaintiffs who are within the zone of
foreseeable harm.
Andrews (minority) view

The minority view, articulated in Judge Andrews’s
minority opinion in Palsgraf, states that if the
defendant can foresee harm to anyone as a result of
his negligence, a duty is owed to everyone
(foreseeable or not) harmed as a result of his
breach. However, the plaintiff still may not be able

to recover, because a particular plaintiff’s injury
may not be closely enough connected to the
defendant’s negligence for the court to conclude that
it was proximately caused by the defendant’s
negligence. In other words, the issue is one of duty
for Judge Cardozo, but one of proximate cause for
Judge Andrews. See § IV.E.3., infra. Rest. 3d:
Liability for Physical and Emotional Harm § 29 cmt.
n.
C. Specific Classes of Foreseeable Plaintiffs

1. Rescuers
A person who comes to the aid of another is a
foreseeable plaintiff. If the defendant negligently
puts either the rescued party or the rescuer in
danger, then he is liable for the rescuer’s injuries.
To the extent that a rescuer’s efforts are
unreasonable, comparative responsibility should be
available to reduce, rather than to bar, recovery by
a rescuer. Rest. 3d: Liability for Physical and
Emotional Harm § 32.
An emergency professional, such as a police officer
or firefighter, is barred from recovering damages
from the party whose negligence caused the
professional’s injury if the injury resulted from a
risk inherent in the job (“firefighter’s rule”).
2. Intended beneficiaries
A defendant is liable to a third-party beneficiary if
the legal or business transaction that the
beneficiary is a part of is prepared negligently by
the defendant, and the defendant could foresee the
harm of completing the transaction.
3. Fetuses
Fetuses are owed a duty of care if they are viable at
the time that the injury occurred. See § IV.G.4.
“Wrongful Life” and “Wrongful Birth” Claims, infra.
D. Affirmative Duty to Act

In general, there is no affirmative duty to act.
However, there are some notable exceptions to that
rule.
1. Assumption of duty
A person who voluntarily aids or rescues another is
liable for injury caused by a failure to act with
reasonable ordinary care in the performance of that
aid or rescue.
Note that some states have enacted “Good Samaritan”
statutes to protect doctors and other medical
personnel when they voluntarily render emergency
care. These statutes exempt medical professionals
from liability for ordinary negligence; however, they
do not exempt them from liability for gross
negligence.
2. Placing another in peril
A person who places another in peril is under a duty
to exercise reasonable care to prevent further harm
by rendering care or aid.
3. By contract
There is a duty to perform contractual obligations
with due care.
4. By authority
One with actual ability and authority to control
another, such as parent over child and employer over
employee, has an affirmative duty to exercise
reasonable control. Generally, this duty is imposed
upon the defendant when the defendant knows or should
know that the third person is apt to commit the
injuring act.
Example: A parent may be liable for failing to
control the conduct of a child who uses a dangerous
instrumentality to injure a plaintiff.
5. By relationship
A defendant with a unique relationship to a
plaintiff, such as business proprietor-patron, common
carrier-passenger, employer-employee, or parent-

child, may have a duty to aid or assist the plaintiff
and to prevent reasonably foreseeable injury to her
from third parties.
E. Implied primary assumption of risk and duty.
1. Primary assumption of risk applies where the

plaintiff voluntarily encounters a known and appreciated
risk of injury.
2. Primary assumption of risk is the flip side of a no

duty determination.
F. Express assumption of risk. Relieves the defendant of

any duty owed to the plaintiff. If there is an
exculpatory clause, the clause must be clear and
unambiguous, unaffected by the public interest, not arise
in the context of a special relationship, and not be an
adhesion contract.
III. Breach of duty
A. Standard of care
1. The standard of care may be based upon a statutory

violation or the common law.
2. If the common law standard is involved, the first

issue is to determine the standard of care to which the
defendant (or plaintiff) will be held.
a. Generally, the defendant (and plaintiff) must act

as a reasonable person would have acted under like
circumstances.
b. The standard of care is objective. It may (or may

not) take into consideration various factors,
including:
(1) Mental and emotional characteristics

Under this standard, the defendant is
presumed to have average mental abilities
and the same knowledge as an average member
of the community. The defendant’s own mental
or emotional disability is not considered in
determining whether his conduct is
negligent, unless the defendant is a child.
In other words, a mentally disabled person
is held to the standard of someone of
ordinary intelligence and knowledge.
Most courts hold that if a defendant
possesses special skills or knowledge, she
is held to a higher standard, i.e., she must
exercise her superior competence with
reasonable attention and care.
(2) Physical characteristics
(Physical disability)
The defendant’s particular physical
characteristics (e.g., blindness) are taken
into account in determining the
reasonableness of the defendant’s behavior.
The reasonableness of the conduct of a
defendant with a physical disability will be
determined based upon a reasonably careful
person with the same disability. Rest. 3d:
Liability for Physical and Emotional Harm §
11. For example, a blind pedestrian must
act as any other reasonable blind person
would act under the circumstances.
(Intellectual disability)
(at least in the case of a plaintiff, if D is

aware of the disability), but it may not be a
defense at all, particularly if the defense
is inconsistent with the defendant’s duty.
E.g., Sandborg and Tomfohr.)
(3) Intoxication

Intoxicated individuals are held to the same
standards as sober individuals unless their
intoxication was involuntary.
(4) Children
The standard of care imposed upon a child
is that of a reasonable child of similar
age, intelligence, and experience. Unlike
the objective standard applied to adult
defendants in negligence actions, the
standard applicable to minors is more
subjective in nature because children are
unable to appreciate the same risks as an
adult.
However, a child engaged in an adult
activity, such as driving a car, is held to
the same standard as an adult. Courts
regard children of a particularly young age
as incapable of negligent conduct. Under
the Third Restatement, children under the
age of five are generally incapable of
negligent conduct. Rest. 3d: Liability for
Physical and Emotional Harm § 10.
(5) Insanity, if there is a sudden onset.
(6) Children. The standard is more subjective:

the care a reasonable child of like age,
intelligence, and experience would exercise
under like circumstances.
If a child is engaged in an adult activity

that is dangerous, the child will be held to
the adult standard of care (plaintiff or
defendant).
The R3 § 10 (c) standard is whether the child

engaged in “a dangerous activity that is
characteristically undertaken by adults.”
3. A person is held to a minimum standard of knowledge.

In other words, there are certain things that a
reasonable prudent person will be charged with
knowing. A person must also exercise care consistent

with the actual knowledge the person possesses. That
does not increase the standard of care, but it must
be considered in determining how a reasonable person
would have acted under the circumstances. See Hill
v. Sparks, p. 104.
B. Proof of the breach
Sufficient evidence of a breach:
 Foreseeability of harm
 Gravity of harm
 Burden of adequate precautions
1. Custom. May be relevant if the party seeking to

introduce the evidence shows how it relates to one of
the issues in a negligence case. Note that custom
may be relevant to the breach issue, but it is for
the courts to determine the standard of care.
Evidence of custom has to be relevant to one of the
issues in a negligence case, e.g., foreseeability or
the burden of adequate precautions.
a. Within a community or industry

Evidence of a custom in a community or industry is
admissible as evidence to establish the proper
standard of care, but such evidence is not
conclusive. The entire community or industry may be
negligent.
b. Safety codes
Safety codes promulgated by industries, associations,
and governmental bodies for the guidance of
operations within their respective fields of interest
are admissible to prove custom.
c. Professionals
A professional person (e.g., doctor, lawyer, or
electrician) is expected to exhibit the same skill,
knowledge, and care as another practitioner in the
same community. A specialist may be held to a higher

standard than a general practitioner because of his
superior knowledge.
d. Physicians
1) Local vs. national standard
Traditionally, physicians were held to the
“same or similar” locale rule of custom: did
the physician’s actions comport with those
customarily employed by doctors in the same
locale or in similar localities?
During the past 40 years, however, many
jurisdictions have changed to a national
standard: did the physician conform her
conduct to the customary practice of the
average qualified practitioner?
Some jurisdictions now require medical
specialists to comply with the national
standard while holding general practitioners
to the same or similar locale standard.
2) Informed consent
Physicians are under a specific obligation to
explain the risks of a medical procedure to a
patient in advance of a patient’s decision to
consent to treatment. Failure to comply with
this “informed consent” doctrine constitutes a
breach of the physician’s duty owed to the
patient and is actionable as medical
malpractice (medical negligence). Doctors are
not under an obligation to disclose when the:
i) Risk is a commonly known
risk;
ii) Patient is unconscious;
iii) Patient waives or
refuses the information;
iv) Patient is incompetent (although the
physician must make a reasonable attempt to
secure informed consent from a guardian); or

v) Disclosure would be too harmful to the
patient (e.g., would upset the patient enough
to cause extreme illness, such as a heart
attack).
A majority of jurisdictions hold that the
required level of disclosure of risks is
governed by custom among medical
practitioners. However, a significant
minority holds that the physician must
disclose any “material risk,” that is, any
risk that might make a difference to a
reasonable person in deciding whether to
proceed with the surgery or other medical
treatment.
2. Statutes or ordinances. Statutory purpose analysis

has been met (P falls within the class of persons to
be protected and suffers the type of injury the
statute was intended to avoid, assuming that the
statutory standard is clearly stated). O’Guin v.
Bingham County, p. 112. There has to be proof that
the statutory violation was a cause in fact of the
injury or damage.
a. Breach of the statute may be negligence per se,

establish prima facie negligence, or be evidence
of negligence, depending on the jurisdiction.(If
breach is negligence per se, that means that the
person who violates the statute is negligent as a
matter of law, unless an excuse or justification
is permitted. See Getchell v. Lodge, p.118 and R3
§ 15 for a discussion of excuses.
Florek v. Vannet
Negligence per se- a form of ordinary negligence that results from the
violation of a statute. A per se negligence rule substitutes a statutory
standard of care for the ordinary prudent person standard of care, such that
a violation of a statute is conclusive evidence of duty and breach.
Ordinary prudent person standard of care
Must show evidence of what the other party did
Argue those actions fall below the standard of a reasonable person

b. If a statute is an “exceptional” statute
(intended to protect a specific class of persons
against their lack of judgment) violation may
result in the imposition of strict liability. No
excuses or justifications will be permitted and
no defenses (e.g., contributory negligence or
assumption of risk) will be permitted). See
Zerby v. Warren.
c. Where the breach is not negligence per se because

the statutory purpose analysis is not satisfied,
the statutory violation may still be evidence of
negligence (relevant, for example, to the
foreseeability and notice issues)
d. Res ipsa loquitur (permissible inference of

negligence)
Definition
Latin for “the thing speaks for itself,” an

evidentiary doctrine providing that, under
certain circumstances, the very fact that an
accident occurred leads to an inference that
the accident was caused by negligence.
(1) Accident is of a type that does not

ordinarily occur in the absence of negligence
on the part of the defendant (or the class of
persons of which the defendant is a member).
(2) Control. Defendant had control over the

instrumentality that caused the injury at the
relevant time.
(3) P’s conduct is not a cause of the injury.

See Giles, p. 173.
3. Cost-Benefit Analysis
In many cases, courts describe the primary factors to
consider in determining whether the defendant has
acted negligently to be:
a. The foreseeable likelihood that the defendant’s
conduct would cause harm;

b. The foreseeable severity of any resulting harm;
and
c. The defendant’s burdens (costs or other
disadvantages) in avoiding the harm.
In fact, the Third Restatement defines negligence
using these terms rather than the reasonable person
standard.
4. Negligence Per Se
a. Basic rule
i) When a criminal or regulatory
statute (or an administrative regulation
or municipal ordinance) imposes upon any
person a specific duty for the protection
or benefit of others;
ii) If the defendant neglects to
perform that duty;
iii) He is liable in negligence to anyone in
the class of people intended to be protected
by the statute;
iv) For any accidents or harms of the type
the statute was intended to protect against;
v) That were proximately caused by the
defendant’s violation of the statute.
In most jurisdictions, the violation of the
statute establishes either negligence as a
matter of law or a rebuttable presumption of
negligence.
A majority of courts hold that a violation
of a state or federal regulation or a
municipal ordinance may also result in
negligence per se. A minority of
jurisdictions hold that violation of a
regulation or an ordinance is merely
evidence of negligence.

b. Proof of a defendant’s compliance is not
dispositive
Generally speaking, compliance with a statute,
regulation, or ordinance does not prove the
absence of negligence. However, sometimes, if
the defendant’s conduct complies with certain
types of federal regulatory statutes, such as
those establishing comprehensive regulatory
schemes, compliance with the federal
requirements may preempt common-law tort
actions.
c. Defenses
1) Compliance is impossible
Even in those jurisdictions in which
negligence per se results in negligence
as a matter of law, the defendant can
avoid liability by proving either that
compliance was impossible under the
circumstances or that an emergency
justified violation of the statute.
2) Violation was reasonable under the
circumstances
The defendant’s violation of a statute
is excused and is not negligence if the
violation is reasonable in light of the
defendant’s physical disability or
incapacitation, if the defendant is a
child, or if the defendant exercises
reasonable care in attempting to comply
with the statute. Rest. 3d: Liability
for Physical and Emotional Harm § 15.
In addition, if the statute imposes an
obligation only under certain factual
circumstances that are not usually
present, and the defendant is not aware
that these circumstances are present and
further proves that his ignorance was
reasonable, then the defendant’s
violation of the statute is excused for
the purposes of negligence per se.

Finally, if the requirements of the
statute at issue were presented to the
public in a confusing manner (e.g.,
extremely vague or ambiguous), then the
defendant’s violation is excused. Rest.
3d: Liability for Physical and Emotional
Harm § 15.
d. Violation by a plaintiff
The violation of a statute, regulation,
or ordinance by a plaintiff may
constitute contributory negligence per
se. The same requirements apply.
5. Standards of Care for Specific Classes of
Defendants
a. Common carriers and innkeepers
Under the common law, a majority of
jurisdictions held common carriers (e.g.,
operators of planes, trains, buses) and
innkeepers to the highest duty of care
consistent with the practical operation of
the business. Under this approach, common
carriers and innkeepers could be held liable
for “slight negligence.”
A majority of courts continue to hold
common carriers to this higher standard.
However, most courts today hold that an
innkeeper (hotel operator) is liable
only for ordinary negligence.
Note, however, that the Third Restatement
approach is slightly different: common
carriers and innkeepers must exercise
reasonable care toward their passengers and
guests. Although generally there is no
affirmative duty to act, common carriers and
innkeepers have a duty to act based on a
special relationship. They must use
reasonable care under the circumstances with
regard to risks that arise out of the
relationship with their passengers and

guests. Rest. 3d: Liability for Physical
and Emotional Harm § 40.
EXAM NOTE: Be certain to apply the carriers
and innkeepers standards only to passengers
or guests.
b. Automobile drivers
In most jurisdictions, automobile drivers owe
ordinary care to their guests as well as their
passengers (those who confer an economic
benefit for the ride). However, a minority of
jurisdictions distinguish between the two with
“guest statutes,” which impose only a duty to
refrain from gross or wanton and willful
misconduct with a guest in the car. Proof of
simple negligence by the driver will not
result in recovery by the plaintiff-guest.
c. Bailors and bailees
A bailment occurs when a person (the bailee)
temporarily takes possession of another’s (the
bailor’s) personal property, such as when a
driver leaves his car with a valet. The duty
of care that must be exercised by a bailor or
bailee varies depending on the type of
bailment.
1) Bailor’s duty
The bailor has a duty to inform a
gratuitous bailee only of known
dangerous defects in personal
property but must inform a bailee for
hire of defects that are known or
should have been known by the bailor
had he used reasonable diligence.
2) Bailee’s duty
When a bailor receives the sole benefit from
the bailment, the bailee has a lesser duty
to care for the property and is liable only
if he has been grossly negligent. In
contrast, when a bailee receives the sole
benefit from the bailment, he must exercise

extraordinary care for the bailor’s
property. Slight negligence on the bailee’s
part will result in liability for any
injuries to the property from failure to
properly care for or use it. In a bailment
for mutual benefit, the bailee must take
reasonable care of the bailed property.
d. Modern trend
The modern trend has been to get away from
distinctions in the level of care and to
regard the relationship between the parties
as simply one of the circumstances in the
light of which conduct is to be measured by
the standard of reasonable care.
e. Emergency situations
The applicable standard of care in an
emergency is that of a reasonable person in
the same situation. In other words, less
may be expected of the reasonably prudent
person who is forced to act in an emergency,
but only if the defendant’s conduct did not
cause the emergency.
6. Possessors of Land
The term “possessors of land” as used here
includes owners, tenants, those in adverse
possession, and others in possession of
land. The fact that a plaintiff is injured
while on someone else’s land does not affect
the liability of a defendant other than the
land possessor. Only land possessors are
protected by the rules limiting liability to
trespassers or licensees. Everyone else—for
example, easement holders (e.g., a utility
company with power lines on the land) or
those licensed to use the land (e.g.,
hunters)—must exercise reasonable care to
protect the trespasser or the licensee.
In general, possessors of land owe a duty
only to those within the boundaries of their

land. The duty to entrants on the land
includes:
i) Conduct by the land
possessor that creates risks;
ii) Artificial conditions
on the land;
iii) Natural conditions on
the land; and
iv) Risks created when any of the
affirmative duties discussed in §
IV.B.5. Affirmative Duty to Act, supra,
are applicable.
a. Two approaches
Approximately one-half of all
jurisdictions continue to follow
traditional rules that provide that the
standard of care owed to land entrants
depends upon whether the land entrant is
an invitee, a licensee, or a trespasser.
Courts in the other half of jurisdictions
now hold that a reasonable standard of
care is owed to all invitees and
licensees (abolishing the distinction
between how these two groups are
treated). The Third Restatement also
follows this approach. However, a
majority of jurisdictions adopting this
“reasonable-care-for-all” approach
continue to provide separate rules for
trespassers.
b. Trespassers
A trespasser is one who enters or remains
upon the land of another without consent
or privilege to do so.
1) Traditional approach

A landowner is obligated to refrain from
willful, wanton, reckless, or intentional
misconduct toward trespassers.
a) Spring-guns and other traps
The use of a “spring-gun” or other
trap set to expose a trespasser to a
force likely to inflict death or
grievous bodily injury will lead to
liability for the land possessor. The
land possessor cannot do indirectly
what he would be forbidden to do
directly (e.g., shoot the trespasser).
b) Discovered trespassers
Land possessors owe a duty toward
discovered or anticipated trespassers
to warn or protect them from
concealed, dangerous, artificial
conditions. There is no duty to warn
of natural conditions or artificial
conditions that do not involve risk of
death or serious bodily harm. Land
possessors also have a duty to use
reasonable care while conducting
activities on their land, as well as
to control the activities of third
parties on their property.
c) Undiscovered trespassers
Land possessors generally owe no duty
to undiscovered trespassers, nor do
they have a duty to inspect their
property for evidence of trespassers.
Note that, in a majority of
jurisdictions, when a landowner should
reasonably know that trespassers are
consistently entering his land (e.g.,
frequent trespassers using a footpath
to cut across the corner of the
property), the landowner owes a duty
to the trespasser, regardless of the

landowner’s actual knowledge, as if
the trespasser were a licensee.
d) Attractive nuisance
Under the “attractive nuisance”
doctrine, a land possessor may be
liable for injuries to children
trespassing on the land if:
i) An artificial condition
exists in a place where the land
possessor knows or has reason to
know that children are likely to
trespass;
ii) The land possessor knows or
has reason to know that the
condition poses an unreasonable
risk of death or serious bodily
injury to children;
iii) The children, because of
their youth, do not discover or
cannot appreciate the danger
presented by the condition;
iv) The utility to the land
possessor of maintaining the
condition and the burden of
eliminating the danger are slight
compared to the risk of harm
presented to children; and
v) The land possessor fails to
exercise reasonable care to
protect children from the harm.
Restatement (Second) of Torts §
339 (1965).
2) Modern and Third Restatement
approach
A few states now take the approach
that land possessors owe
trespassers, like all other land
entrants, a reasonable standard of

care under all the circumstances.
Of course, the fact that the land
entrant is trespassing,
particularly if he is
undiscovered, is one fact that the
jury may consider in deciding
whether the land possessor has
exercised reasonable care.
The Third Restatement § 52
provides that although a duty of
reasonable care is owed to
trespassers, only the duty not to
act in an intentional, willful, or
wanton manner to cause physical
harm is owed to flagrant
trespassers who are not imperiled
and unable to protect themselves.
A burglar in a home would be a
flagrant trespasser but someone
injured while walking in a public
park at midnight, despite the
presence of a posted notice that
the park was closed after dusk,
would not be. This distinction
has not been widely adopted by the
courts.
c) Invitees: traditional approach
An invitee is either:
i) A public invitee—Someone
invited to enter or remain on the
land for the purposes for which
the land is held open to the
public; or
ii) A business visitor—Someone
invited to enter or remain on the
land for a purpose connected to
business dealings with the land
possessor.
A land possessor owes an
invitee the duty of reasonable

care, including the duty to use
reasonable care to inspect the
property, discover unreasonably
dangerous conditions, and
protect the invitee from them.
However, the duty of reasonable
care owed to an invitee does not
extend beyond the scope of the
invitation, and the invitee is
treated as a trespasser in areas
beyond that scope.
1) Non-delegable duty
The land possessor’s duty to
invitees is a non-delegable duty.
For example, even if a store
owner hires an independent
contractor to maintain the
escalator in her store, she will
remain liable if the contractor
negligently fails to properly
maintain the escalator. This
same principle of non-delegable
duty applies under the modern
approach (discussed below) under
which the land possessor owes
most land visitors a duty of
reasonable care.
2) Recreational land use
In some jurisdictions, a land
possessor who opens his land to the
public for recreational purposes is
not liable for injuries sustained by
recreational land users so long as
he does not charge a fee for the use
of his land, unless the landowner
acts willfully and maliciously or,
in some jurisdictions, with gross
negligence.
d. Licensees: traditional approach

A licensee is someone who enters the
land of another with the express or
implied permission of the land possessor
or with a privilege. Examples of
licensees include:
i) Social guests—Note, they may be
“invited,” but they are still licensees,
not invitees;
ii) Those whose presence is tolerated
by the land possessor such as children
who routinely cut across the land on
their way home from school; and
iii) Emergency personnel such as
police, firefighters, and emergency
medical technicians.
The land possessor has a duty to either
correct or warn a licensee of concealed
dangers that are either known to the
land possessor or which should be
obvious to her. The land possessor does
not have a duty to inspect for dangers.
In addition, the land possessor must
exercise reasonable care in conducting
activities on the land.
e. Invitees and licensees: modern and
Restatement approach
Approximately one-half of all
jurisdictions and the Third Restatement
now require the land possessor to
exercise reasonable care under all
circumstances to all land entrants
except trespassers (or in the case of
the Third Restatement, all land entrants
except for “flagrant trespassers.” See §
IV.C.6.b. Trespassers, supra). The land
possessor must use reasonable care to
prevent harm posed by artificial
conditions or conduct on the land.
If the land possessor is commercial,
then he also must use reasonable care to

prevent harm to the visitor posed by
natural conditions. A non-commercial
land possessor must use reasonable care
to prevent harm posed by natural
conditions only if the possessor is
aware of the risk, or the risk is
obvious.
f. Liability of landlords and tenants
Because the obligations associated with
property are owed by the possessor of
the land, a lessee (tenant) assumes any
duty owed by the lessor (the landlord)
once the lessee takes possession.
1) Landlord’s liability
The landlord, though, remains
liable for injuries to the tenant
and others occurring:
i) In common areas such as
parking lots, stairwells,
lobbies, and hallways;
ii) As a result of hidden
dangers about which the landlord
fails to warn the tenant;
iii) On premises leased for
public use;
iv) As a result of a hazard
caused by the landlord’s
negligent repair; or
v) Involving a hazard that the
landlord has agreed to repair.
2) Tenant’s liability
As an occupier of land, the tenant
continues to be liable for
injuries to third parties arising
from dangerous conditions within
the tenant’s control, regardless

of whether the landlord has
liability.
g. Off-premises victims
A landowner generally does not owe
a duty to a person not on the
premises (e.g., passerby, owner of
adjacent land) who is harmed by a
natural condition on the
landowner’s premises. An
exception exists, however, with
respect to trees in urban areas.
With respect to an artificial
condition, the landowner generally
owes a duty to prevent an
unreasonable risk of harm to persons
who are not on the premises.
Similarly, with respect to an
activity conducted on the premises
by the owner or by someone subject
to the owner’s control, the
landowner generally owes a duty of
reasonable care to persons who are
not on the premises.
h. Sellers of real property
Sellers of real property owe a duty to
disclose to buyers those concealed and
unreasonably dangerous conditions known
to the seller. These are conditions
that the buyer is unlikely to discover
upon reasonable inspection. The
seller’s liability to third parties
continues until the buyer has a
reasonable opportunity, through
maintenance and inspection, to discover
and remedy the defect.

III. Cause in fact. P must prove a causal connection between
D's conduct and P's injuries.
1. The Restatement (Third) of Torts § 26 adopts a “but-

for” test: “Tortious conduct must be a factual
cause of harm for liability to be imposed. Conduct is
a factual cause of harm when the harm would not have
occurred absent the conduct.”
2. Some jurisdictions adopt a substantial factor test.

The issue is whether D's conduct was a substantial
factor in bringing about P's injuries. D's conduct
does not have to be the sole cause.
a. Originally adopted in cases involving two or more

Ds where the conduct of any of the Ds would have
been sufficient by itself to cause P’s injury.
b. The R3 (§ 27) still applies but-for, asking

whether, focusing on each D’s conduct
individually, it would have been a but-for cause.
3. Burden of proof. P has the burden of proof, unless

for policy reasons (e.g., Summers v. Tice) the
burden is shifted to Ds.
IV. Scope of liability (proximate cause). Differs from duty,

which will typically involve bright-line rules that are
categorical in nature (e.g., no recovery for wrongful life, or
for bystander NIED).

“The defendant’s conduct must be within the
scope of liability. The scope of liability is
determined by asking what risks the defendant
created that made the defendant’s conduct
tortious, and then whether the risks that
actually occurred fall within that general
bundle of risks.”
1. An actor's liability is limited to those physical

harms that result from the risks that made the
actor's conduct tortious. Restatement (Third) of
Torts: Liability for Physical Harms § 29 (2010).
2. Direct consequences rule (Palsgraf, Andrews, J.,

dissenting)
3. Intervening and superseding cause.
a. An intervening cause will not terminate a

defendant’s duty if the risk that occurred was
the same type of risk of injury that made the

defendant’s conduct negligent. Derdiarian v.
Felix Contracting Corp., p. 231.
b. Where the risk created by the defendant’s conduct

has terminated and a new and unanticipated result
occurs, the unanticipated result may be a
superseding cause relieving the defendant of
liability.
V. Damages
1. Actual Damages
The plaintiff must prove actual harm, i.e.,
personal injury or property damages, in order to
complete the requirements of liability for
negligence. Unlike actions for intentional
torts, nominal damages are not recoverable in
negligence actions. In addition, a plaintiff who
suffers only economic loss without any related
personal injury or property damage cannot recover
such loss through a negligence action. However,
once a plaintiff has proven non-economic injury,
he is entitled to recover both economic and non-
economic damages. Attorney’s fees and interest
from the date of damage are not recoverable in a
negligence action.
2. Compensatory Damages
The general measure of compensatory damages is
compensation that would make the victim whole, as
if he had never suffered the injury.
3. Mitigation of Damages, Avoidable Consequences
The plaintiff must take reasonable steps to
mitigate damages. Although sometimes phrased as
a “duty to mitigate,” this “duty” is not an
obligation that the plaintiff owes to the
defendant but instead is a limitation on the
plaintiff’s recovery due to the failure to avoid
harm that could have been avoided by the use of
reasonable effort after the tort was committed.
For example, if the victim fails to use
reasonable care to treat a wound, resulting in
infection and the loss of a limb, she ordinarily

will not be able to recover for the infection or
lost limb. In a contributory-negligence
jurisdiction, the failure to mitigate precludes
the plaintiff from recovering for any additional
harm caused by aggravation of the injury. In a
comparative-negligence jurisdiction, the failure
to mitigate is taken into account, but it does
not categorically prevent recovery.
4. Personal Injury: Categories of Damages
The typical categories of damages recoverable in
a personal injury action include:
i) Medical and rehabilitative expenses, both past
and future;
ii) Past and future pain and suffering (e.g.,
emotional distress); and
iii) Lost income and any reduction in future
earnings capacity.
Under the “eggshell-skull rule,” the defendant is
liable for the full extent of the plaintiff’s
injuries that may be increased because of the
plaintiff’s preexisting medical condition or
vulnerability, even if the extent is unusual or
unforeseeable.
5. Property Damage
a. General rule
When the plaintiff’s real or personal property is
injured or destroyed by the defendant’s tortious
conduct, the general rule is that the plaintiff
may recover the difference between the fair market
value of the property immediately before the
injury and immediately after the injury.
b. Cost of repairs
In the case of tortious harm to personal property,
most courts also allow the cost of repairs as an
alternative measure of damages, provided that the
cost of repairs does not exceed the value of the
property.

c. Household items
In the case of household items, such as clothing
and appliances, courts often hold that replacement
value is the measure of damages.
6. Collateral-Source Rule
a. Traditional rule
Under the traditional rule, benefits or
payments provided to the plaintiff from
outside sources (such as medical insurance)
are not credited against the liability of
any tortfeasor, nor is evidence of such
payments admissible at trial.
b. Modern trend
Since the 1980s, a majority of states have
passed statutes that either eliminate the
collateral source rule entirely or modify it
substantially. Payments made to the
plaintiff by the defendant’s insurer are not
considered payments from a collateral
source, and such payments are credited
against the defendant’s liability.
7. Punitive Damages
The plaintiff may be entitled to punitive
damages if he can establish by clear and
convincing evidence that the defendant acted
willfully and wantonly, recklessly, or with
malice. Punitive damages are also available
for inherently malicious torts (such as
intentional infliction of emotional
distress, which requires outrageous
conduct).
VI. Duties of Professionals
A. What is the appropriate standard of care in medical

negligence cases?
1. General practitioners. A national standard of care or

a modified locality rule? Even physicians in family
practice are board certified, however, which edges
the locality rule closer to a national standard. See
Vergara v. Doan, p. 347.
2. Specialists. A national standard of care.
3. Nurses. Nurses in a similar practice.
B. Proof of professional malpractice
In general, experts must establish the standard of care,

that the defendant was negligent in deviating from that
standard of care, and that the deviation was a direct cause
of the plaintiff’s injury.
C. Informed consent theory.
1. Physician failed to disclose a material risk that the

physician knew or should have known about.
Materiality is determined according to what a
reasonable person in what the doctor knows or should
know is the patient's position would think material.
2. P must prove that a reasonable person in the P's

position would have not consented had the risk been
disclosed and that P himself or herself would not
have consented.
3. Dual causation requirement.
a. A reasonable person in patient’s position would

not have consent had she known of the risk of
injury or alternative treatment.
b. The risk of injury, or the risks that would have

been avoided by the alternative course of
treatment, have to be the risks that
materialized.
D. Other professionals (lawyers, architects, engineers,

etc.). Standard of care is “the standard by qualified
practitioners in the same profession.”
VII. Duty to take affirmative action
A. Generally no duty, but there are numerous exceptions

1. Defendant has control over instrumentality causing
injury.
2. Defendant responsible for placing plaintiff in

position of danger (even if not negligent).
3. Possible application of Good Samaritan statute, e.g.,

Minn. Stat. § 604A.01 (but note the need for common
law duty upon which to base a negligence per se
claim).
4. Special relationships. Restatement (Third) of Torts

§ 40 lists the special relationships courts have
recognized:
(1) a common carrier with its passengers,
(2) an innkeeper with its guests,
(3) a business or other possessor of land that

holds its premises open to the public with those
who are lawfully on the premises,
(4) an employer with its employees who are:
(a) in imminent danger; or
(b) injured and thereby helpless,
(5) a school with its students,
(6) a landlord with its tenants, and
(7) a custodian with those in its custody, if: a)

the custodian is required by law to take custody
or voluntarily takes custody of the other; and b) the
custodian has a superior ability to protect the
other.
5. If D undertakes rescue or takes custody of P, then D

must exercise reasonable care. Wakulich v. Mraz; R3
§§ 42, 44.
VIII. Duty to control third persons
A. In general, there is no duty to take action to avoid the

criminal conduct of third persons.
B. Duty to control may arise where the criminal conduct is

foreseeable and D should reasonably be expected to avoid
the conduct.
C. There may be a duty where there is an undertaking to

provide security.
D. Special relationship may also impose a duty on D to

control actions of the third person.
1. Where there is a special relationship between the

defendant and the person who causes the harm. The R3
§ 41 lists the special relationships courts have
recognized:
(1) a parent with dependent children,
(2) a custodian with those in its custody,
(3) an employer with employees when the

employment facilitates the employee's causing harm
to third parties, and
(4) a mental-health professional with patients.
2. Note that there may be additional requirements to

establish a breach of duty.
IX. SPECIAL RULES OF LIABILITY

1. Negligent Infliction of Emotional Distress
(NIED)
A plaintiff can recover for negligent infliction
of emotional distress from a defendant whose
negligence creates a foreseeable risk of
physical injury to the plaintiff if the
defendant’s action causes a threat of physical
impact that in turn causes emotional distress.
The emotional distress generally must result in
some form of bodily harm (e.g., a heart attack).
Note that it is also possible for a defendant to
inflict severe emotional distress that results in
physical symptoms without the threat of physical
impact, such as when a physician negligently
misdiagnoses a patient with a terminal illness
that the patient does not have, and the patient
goes into shock as a result.

a. Threat of impact
The threat of physical impact that causes
distress must be directed at the plaintiff or
someone in his immediate presence.
b. Zone of danger
Generally, a plaintiff must show that he was
within the “zone of danger” of the threatened
physical impact—that he feared for his own safety
because of the defendant’s negligence. A
plaintiff who was a bystander also generally
cannot recover for emotional distress caused by
witnessing the serious injury to (or death of)
another person, unless the bystander is within
the zone of danger.
c. Witnessing harm to a close relative
There is a trend toward allowing recovery for a
bystander plaintiff outside the zone of danger if
the plaintiff:
i) Is closely related to the person
injured by the defendant;
ii) Was present at the scene of the
injury; and
iii) Personally observed (or otherwise
perceived) the injury.
A majority of jurisdictions would be unlikely to
expand liability to an unmarried cohabitant.
However, some jurisdictions do allow engaged
cohabitants to recover under this rule.
d. Physical symptoms required
The majority rule is that damages for negligent
infliction of emotional distress without
accompanying physical symptoms (e.g., nightmares,
shock, ulcers, etc.) are not recoverable.
e. Exceptions to the physical-injury requirement

There are exceptions to the physical-injury
requirement in cases of misinforming someone that a
family member has died and the negligent mishandling
of a corpse.
f. ”Parasitic” damages
A plaintiff who is the victim of a tort that causes
physical injury may also add emotional distress as an
element of damages (sometimes known as “parasitic”
damages).
Compare to intentional infliction of emotional
distress, under which the plaintiff must prove more
than negligence (intentional or reckless extreme or
outrageous conduct) but need not prove any physical
injury.
2. Wrongful Death and Survival Actions
a. Wrongful-death actions
A decedent’s spouse, next of kin, or personal
representative may bring suit to recover losses
suffered as a result of a decedent’s death under
wrongful death actions created by state statutes.
Under typical statutes, the recoverable damages
include the loss of support (income) as a result of
the decedent’s death, as well as the loss of
companionship, society, and affection experienced by
the surviving family members, but not pain and
suffering. Recovery, however, is limited to what
the deceased would have recovered had he lived.
Additionally, the decedent’s creditors have no right
to institute a claim against the amount awarded.
b. Survival actions
Survival statutes typically enable the personal
representative of a decedent’s estate to pursue any
claims the decedent herself would have had at the
time of her death, including claims for damages
resulting from both personal injury and property
damage. Such claims often involve damages resulting
from the tort that injured the decedent and later
resulted in her death.

Example: If the decedent was negligently injured by
the driver of another automobile and lingered—out of
work, in the hospital, and in extreme pain—for one
year before passing away, his estate would be able to
recover for his medical expenses from the time he was
injured until his death, for his loss of income
during this time, and for the pain and suffering he
experienced.
Most states do not allow survival of tort actions
involving intangible personal interests (such as
defamation, malicious prosecution, or invasion of
privacy) because they are considered too personal to
survive the decedent’s death.
Note: If a jurisdiction recognizes both wrongful
death and survival actions, there is no double
recovery.
3. Recovery for Loss Arising From Injury to
Family Members
a. Spouses
One spouse may recover for loss of consortium and
services as a result of injuries to the other spouse
resulting from the defendant’s tortious conduct.
b. Parent-child
A parent may recover damages for loss of services if
a child is injured due to the defendant’s tortious
conduct. Many jurisdictions allow a parent to
recover for loss of the child’s companionship in a
wrongful-death action if the child is killed, but
only a few jurisdictions allow a parent to recover
for such damages if the child is injured but lives.
Similarly, many jurisdictions allow a child to
recover for loss of the parent’s companionship in a
wrongful-death action, but most do not allow the
child to recover such damages if the parent is
injured but lives. In a wrongful-death action, the
child’s claim for loss of support resulting from the
decedent’s death will be brought by the statutorily
designated adult family member as part of the
wrongful death action.

c. Limitations
The amount of damages recoverable in a derivative
action (an action arising solely because of tortious
harm to another) for interference with family
relationships is reduced in a comparative fault
jurisdiction (and eliminated in a contributory-
negligence jurisdiction) by the injured family
member’s contributory negligence. Thus, if the
damages recovered in the injured family member’s own
action are reduced by the plaintiff’s comparative
fault, then the damages recoverable by his family
members in their derivative action will also be
reduced.
4. “Wrongful Life” and “Wrongful Birth” Claims
a. Wrongful life
Most states do not permit actions by a child for
“wrongful life” based on the failure to properly
perform a contraceptive procedure or failure to
diagnose a congenital defect, even if the child is
born with a disability. A few states permit this
action, but they limit the child’s recovery to the
special damages attributable to the disability.
b. Wrongful birth
Conversely, many states do permit parents to recover
for “wrongful birth” (failure to diagnose a defect)
or “wrongful pregnancy” (failure to perform a
contraceptive
procedure). Generally, the mother can recover
damages for the medical expenses of labor as well as
for pain and suffering. In the case of a disabled
child, the parents may be able to recover damages for
the additional medical expenses of caring for that
child, and, in some states, may recover for emotional
distress as well.
X. VICARIOUS LIABILITY
Vicarious liability is a form of strict liability in

which one person is liable for the tortious actions

of another. It arises when one person has the right,
ability, or duty to control the activities of
another, even though the first person was not
directly liable for the injury.
1. Liability of an Employer for an Employee’s Torts
a. Employer’s right of control
As a general rule, the employer is vicariously
liable for the employee’s torts if the employer
has the right to control the activities of the
employee.
b. Scope of employment
An employer is liable for the tortious conduct of
an employee that is within the scope of
employment. Conduct within the scope of
employment includes acts that the employee is
employed to perform or that are intended to profit
or benefit the employer.
Note: Careful instructions directed to the
employee do not insulate the employer from
liability—even when the employee acts counter to
the instructions—if the employee is acting within
the scope of employment.
i) Intentional torts
An employer may be liable for the intentional
tort of an employee. For example, when force
is inherent in the employee’s work (e.g., a
bouncer at a bar), the employer may be
responsible for injuries the employee inflicts
in the course of his work. However, if an
employee, acting on a long-standing personal
grudge, punches a customer of the employer’s
store, the employer probably will not be held
liable. In addition, if
the employer authorizes the employee to act on
his behalf, and the employee’s position
provides the opportunity to commit an
intentional tort, the employer may be liable
(e.g., when an employee with the power to sign

contracts enters into a fraudulent contract
with a third party, the employer may be
liable). As with negligence, the test is
whether the employee was acting within the
scope of employment. Restatement (Third) of
Agency § 7.07.
ii) Detour and frolic
An employer may be liable for a tort committed
by the employee during an employee’s detour (a
minor and permissible deviation from the scope
of employment) but not for an employee’s frolic
(an unauthorized and substantial deviation).
EXAM NOTE: The employer and employee will be
jointly and severally liable (see § IV.J.1.
Joint and Several Liability, infra) for torts
committed by the employee within the scope of
employment.
c. Negligent hiring
An employer may be liable for the negligent
hiring, supervision, entrustment, or retention of
an employee. This is primary negligence; it is
not vicarious liability.
EXAM NOTE: If you conclude that an employer is
not liable under a vicarious-liability theory,
then be certain to consider whether the employer
is liable in her own right for negligence.
2. Torts Committed By Independent Contractors
a. Generally no vicarious liability
Those who hire independent contractors are
generally not vicariously liable for the torts of
the independent contractors.
b. Distinguished from employee
An independent contractor is one hired to
accomplish a task or result but who is not
subject to a right of control by the employer.

i) Independent contractors tend to have
specialized skills or knowledge, e.g.,
physicians and plumbers; and
ii) Independent contractors tend to work
for many employers, while employees more
often work for a single employer.
c. Non-delegable duties
The person who hires an independent contractor
remains vicariously liable for certain
conduct, including:
i) Inherently dangerous activities;
ii)Non-delegable duties arising out of a
relationship with a specific plaintiff or
the public (i.e., activities that are
inherently risky or that affect the public
at large, such as construction work
adjacent to a public highway);
iii) The duty of a storekeeper or other
operator of premises open to the public to
keep such premises in a reasonably safe
condition; and
iv)In a minority of jurisdictions, the duty to
comply with state safety statutes.
d. Negligence in hiring
In addition, the party hiring the independent
contractor may be liable for his own negligence in
selecting the independent contractor.
3. Business Partners
Partners in a joint enterprise, when two or more
parties have a common purpose and mutual right of
control, may be liable for the tortious acts of each
other that are committed within the scope of the
business’s purposes.
4. Automobile Owners
a. Negligent entrustment

The owner of a vehicle (or any other object that
carries the potential for harm, such as a gun or lawn
mower) may be liable for the negligent acts of a
driver or user to whom the car or other property was
entrusted if the owner knew or should have known of
the user’s negligent propensities.
b. Family-purpose doctrine
Many jurisdictions, through either legislative
enactments or judicial decisions, have adopted the
family-purpose doctrine, providing that the owner of
an automobile may be liable for the tortious acts of
any family member driving the car with permission.
c. Owner liability statutes
Many jurisdictions have enacted statutes that
provide that the owner of an automobile may be
liable for the tortious acts of anyone driving
the car with permission.
5. Parents and Their Children
a. No vicarious liability
The general rule is that parents are not vicariously
liable for their minor child’s torts. Exceptions to
this general rule include situations in which:
i) The child commits a tort while acting as the
parent’s agent;
ii)State statutes provide for the liability of
parents when children commit specified acts
such as vandalism or school violence; or
iii) State statutes require that a parent, when
he signs for the child’s driver’s license
application, assumes liability for any damages
caused by negligent acts that the child commits
while driving a car.
b. Negligence of parents
Parents, however, are liable for their own
negligence with respect to their minor child’s
conduct. A parent is under a duty to exercise
reasonable care to prevent a minor child from

intentionally or negligently harming a third
party, provided the parent:
ii)Has the ability to control the child; and
iii) Knows or should know of the necessity and
opportunity for exercising such control.
In such circumstances, a parent who fails to
exercise control may be liable for harm caused by
the child, even though the child, because of his
age, is not liable. Rest. 2d § 316.
Example: A father gives a gun to his six-year-old
son. Although the son lacks the necessary
maturity and judgment to operate the gun
independently in a safe manner, the father allows
the son to use the gun when the father is not
present. The son, while aiming the gun at a toy
in his yard, misses and accidentally shoots a
neighbor. The father, because of his failure to
properly supervise his son, can be liable for the
injury suffered by the neighbor that is directly
attributable to the son’s conduct, even though the
son himself will not be liable because of his age.
6. “Dram Shop” Liability
Many states recognize, either by statute (a “dram
shop act”) or by judicial decision, a cause of action
against the seller of intoxicating beverages when a
third party is subsequently injured due to the
buyer’s intoxication. Most states limit liability to
situations in which the buyer was a minor or was
intoxicated at the time of the sale. Some states
extend liability to a social host who serves
intoxicating beverages to a minor. The states are
divided as to whether the cause of action is grounded
in negligence or strict liability.
7. Bailment Liability
A bailor may be liable for his own negligent actions
but generally is not vicariously liable for the
tortious acts of his bailee, except for those limited
situations described above, such as bailments
involving automobiles or parents and children.

XI. LIMITATION OF LIABILITY RESULTING FROM DEFENDANT'S IDENTITY
OR RELATIONSHIPS ("IMMUNITIES")
Traditionally, governmental entities, charities, and

family members were immune from liability. Today,
these immunities have been largely eliminated, but
the rules governing the liability of these defendants
continue to differ from those governing other
tortfeasors.
1. Liability of the Government and Its Officers
a. Federal government
Under the Federal Tort Claims Act (“FTCA”), the
U.S. government waives immunity in tort actions,
with the following exceptions:
i) Certain enumerated torts (assault,
battery, false imprisonment, false arrest,
malicious prosecution, abuse of process,
libel and slander, misrepresentation and
deceit, and interference with contract
rights);
ii) Discretionary functions (i.e., planning
or decision making, as opposed to
operational acts);
iii) Assertion of the government’s immunity
by a government contractor in a products
liability case if the contractor conformed
to government specifications and warned the
government of any known dangers in the
product; and
iv) Certain traditional governmental
activities (i.e., postal, tax collection or
property seizure, admiralty, quarantine,
money supply, and military activity).
When the U.S. government waives its
sovereign immunity under the FTCA, it is
liable in the same manner and to the same
extent that a private person under the same

circumstances would be liable, but it is not
liable for punitive damages.
b. State governments
Most states have waived sovereign immunity, at
least partially, through legislation.
Simultaneously, however, they have imposed limits
on the amount of recovery and the circumstances
under which the state can be held liable. They also
have created procedural barriers to recover that do
not exist in claims against private defendants.
State tort claims acts vary greatly and therefore
each act must be read carefully.
Unless otherwise provided in the legislation, the
same terms and conditions apply to the liability of
state agencies—including prisons, hospitals, and
educational institutions—as to the state itself.
c. Municipalities
1) Usually governed by state tort claims act
Today, the liability of municipalities, other
local governments, and their agencies usually
is governed by the provisions of state tort
claims acts.
2) Governmental vs. proprietary functions
Traditionally, immunity attached to the
performance of traditional government
functions (such as police and court systems)
but did not attach when a municipality was
performing a “proprietary” function that often
is performed by a private company (such as
utilities and parking lots).
3) Public-duty rule
The public-duty rule provides that there is no
liability to any one citizen for the
municipality’s failure to fulfill a duty that
is owed to the public at large, unless that
citizen has a special relationship with the
municipality that creates a special duty. A
special relationship can be shown by:

i) Promises or actions on the part of
the municipality demonstrating an
affirmative duty to act on behalf of
the injured party;
ii) Knowledge by the municipality’s
agents that failure to act could lead
to harm;
iii) Direct contact between the
municipality’s agents and the injured
party; and
iv) The injured party’s justifiable
reliance on the municipality’s
affirmative duty.
d. Government officials
1) Discretionary functions
When a government official is personally sued,
immunity applies if she is performing
discretionary functions entrusted to her by law
so long as the acts are done without malice or
improper purpose.
2) Ministerial functions
There is no tort immunity for carrying out
ministerial acts, such as driving while on
government business.
3) Highly ranked officials
Many highly ranked government officials,
such as legislators performing their
legislative functions, judges performing
their judicial functions, prosecutors, and
some upper-echelon officials of the
executive branches, are usually absolutely
immune from personal liability.
4) Federal immunity
Under the so-called “Westfall Act,” 28
U.S.C. § 2679(b)
(1), the remedy against the United States
under the FTCA for torts committed by

federal employees precludes any personal
liability on the part of a federal employee
under state tort law.
2. Intra-Family Immunity
Intra-family immunity applies only to
personal injuries, not to property damage.
a. Interspousal immunity
Traditionally, interspousal immunity
prevented one spouse from suing the other
in a personal-injury action. In most
jurisdictions today, however,
interspousal immunity has been
extinguished, and either spouse can now
institute a cause of action for personal
injury against the other spouse.
b. Parent-child immunity
Traditionally, parents were immune from
tort claims brought by their children.
In recent decades, however, there has
been a clear trend toward abolishing or
greatly restricting parental immunity,
but abrogation has proceeded more slowly
than in the case of interspousal
immunity.
Courts generally allow parents to be held
liable in areas other than core parenting
activities. For example, most states
allow children to sue parents:
i) For injuries arising from automobile
accidents;
ii)In extreme cases, such as those
involving sexual abuse and
intentional tortious conduct; and
iii) When the parent is acting in a
dual capacity, such as when the
parent is a physician treating the
child for an injury (medical
malpractice claim allowed).

3. Charitable Immunity
Most states have either totally or partially
eliminated the common-law rule of charitable
immunity. Some states cap the amount of
damages recoverable from a charitable
institution.
XII. SHARING LIABILITY AMONG MULTIPLE DEFENDANTS
1. Joint and Several Liability

a. Definition
Under the doctrine of joint and several liability,
each of two or more defendants who is found liable
for a single and indivisible harm to the plaintiff
is subject to liability to the plaintiff for the
entire harm. The plaintiff has the choice of
collecting the entire judgment from one defendant,
the entire judgment from another defendant, or
portions of the judgment from various defendants,
as long as the plaintiff’s entire recovery does
not exceed the amount of the judgment.
b. Application
Examples of when joint and several liability
applies include, among other instances, when:
i) The tortious acts of two or more
tortfeasors combine to produce an
indivisible harm (see § IV.E.1.b.2.
Concurrent tortfeasors contributing to an
individual injury, supra);
ii) The harm results from the acts of one
or more tortfeasors acting in concert (see §
IV.E.1.b.4. Concert of action, supra);
iii) Alternative liability applies (see §
IV.E.1.b.3. Alternative causation, supra);

iv) Res ipsa loquitur is used against
multiple defendants (such as in a surgical
setting), and the plaintiff is unable to
identify the tortfeasor whose acts were
negligent (see § IV.D.2. Res Ipsa
Loquitur, supra); and
v) The employer and the employee are both
held liable (see § IV.H.1. Liability of an
Employer for an Employee’s Torts, supra).
2. Contribution
If two or more tortfeasors are subject to liability
to the same plaintiff, and one of the tortfeasors has
paid the plaintiff more than his fair share of the
common liability, then he may sue any of the other
joint tortfeasors for contribution, and recover
anything paid in excess of his fair share.
Additionally, a person seeking contribution must
prove that the person against whom contribution is
sought would have been liable to the plaintiff in an
amount and share equal to or greater than the amount
sought as contribution. See Rest. 3d (Apport.) § 23.
a. Determining fair shares
In most jurisdictions, each party’s fair share
is determined by comparing how far each
tortfeasor departed from the standard of
reasonable care.
b. Intentional tortfeasor
Generally, a party who has committed an
intentional tort may not seek contribution from
another tortfeasor.
3. Several (Proportionate) Liability
A significant number of states now reject joint and
several liability and instead recognize pure several
liability, under which each tortfeasor is liable only
for his proportionate share of the plaintiff’s
damages. In most of these jurisdictions, each
defendant’s share of liability is determined in
accordance with how far each deviated from the
standard of reasonable care. In other words, the

more culpable defendant pays the higher proportion of
the damages.
4. Satisfaction and Release
Once a plaintiff has recovered fully from one or a
combination of defendants, she is barred from
pursuing further action against other tortfeasors.
The plaintiff generally may not receive double
recovery.
If the plaintiff has not been wholly compensated, it
is now the usual rule that a release of one
tortfeasor does not release the others but instead
diminishes the claim against the others, ordinarily
by the amount of compensation received from the
released tortfeasor. However, a release may bar
claims against other tortfeasors if either (i) the
release agreement so provides or (ii) the plaintiff
has been entirely compensated for his losses.
5. Indemnification
Indemnification is the shifting of the entire loss
from one joint tortfeasor to another party.
a. Vicarious liability
Indemnification generally applies when one
tortfeasor is vicariously liable for the other’s
wrongdoing. The tortfeasor who has discharged the
liability is entitled to indemnity from the actual
wrongdoer who was primarily responsible for the
harm (e.g., an employer who pays a judgment for
the tort of an employee because of the employer’s
vicarious liability).
b. Complete reimbursement
The employer can then seek complete reimbursement
(indemnity) from the employee when:
i) There is a prior indemnification agreement
between the parties (e.g., in the construction
industry, a contractor may agree to indemnify a
subcontractor for the latter’s negligence that
may occur in the future);

ii) There is a significant difference between
the blameworthiness of two defendants such that
equity requires a shifting of the loss to the
more blameworthy defendant;
iii) Significant additional harm is subsequently
caused by another tortfeasor (i.e., one defendant
pays the full judgment, including for additional
harm caused by the malpractice of the treating
physician); or
iv) Under strict products liability, each
supplier has a right of indemnification against
all previous suppliers in a distribution chain.
Note: Indemnity (compensation) in degree of
blameworthiness is rejected in jurisdictions with
comparative negligence systems. These states
apportion damages based on relative fault,
although indemnification is allowed in other
instances when it is not based on degree of
fault.
XIII. DEFENSES TO NEGLIGENCE
1. Contributory Negligence
Contributory negligence occurs when a plaintiff fails
to exercise reasonable care for her own safety and
thereby contributes to her own injury. Note that
when a plaintiff is suing a defendant for the
negligent rendering of services, such as medical
services, the plaintiff’s negligent conduct in
creating the condition that the defendant has been
employed to remedy is not taken into account.
a. Contributory negligence: traditional rule
At common law, and in a handful of states, the
plaintiff’s contributory negligence (i.e.,
failure to exercise reasonable care for her own
safety) is a complete bar to recovery, regardless

of the percentage that the plaintiff’s own
negligence contributed to the harm.
Examples of contributory negligence include:
i) A plaintiff’s violation of a statute
that is designed to protect against the type
of injury suffered by the plaintiff; the
plaintiff’s violation of a statute cannot be
used as a defense, however, when a safety
statute is interpreted to place the entire
responsibility for the harm suffered by the
plaintiff on the defendant (e.g., workplace
safety statutes when an injury occurs to
someone not covered by workers’
compensation);
ii) A plaintiff-pedestrian’s crossing the
street against the light; and
iii) A plaintiff driving at an unreasonable
speed that deprived him of the opportunity to
avoid a traffic accident.
A rescuer who takes significant risks when
attempting a rescue may also be permitted to
recover, despite the rescuer’s negligence.
Note: Contributory negligence is not a
defense to an intentional tort, gross
negligence, or recklessness.
Traditional reasons for the rule denying
recovery have included punishing a plaintiff
who has herself been negligent and
deterrence, in that people are more likely to
be careful about their own safety if they
know they cannot recover for their injuries
if they are not themselves careful.
b. Last clear chance
In contributory-negligence jurisdictions, the
plaintiff may mitigate the legal consequences of
her own contributory negligence if she proves
that the defendant had the last clear chance to
avoid injuring the plaintiff but failed to do so.

This doctrine has been abolished in most
comparative-fault jurisdictions.
1) Helpless plaintiff
A plaintiff who, due to his own contributory
negligence, is in peril from which he cannot
escape is in helpless peril. In such cases, the
defendant is liable if she knew or should have
known of the plaintiff’s perilous situation and
could have avoided harming the plaintiff but for
her (the defendant’s) own negligence.
2) Inattentive plaintiff
A plaintiff who, due to his own contributory
negligence, is in peril from which he could
escape if he were paying attention is an
inattentive or oblivious plaintiff. The
defendant is liable only if she has actual
knowledge of the plaintiff’s inattention.
c. Comparative fault
Rejecting the “all-or-nothing” approach of
contributory negligence, almost all jurisdictions
have adopted some form of comparative fault
(comparative negligence), which attempts to apportion
damages between a defendant and a plaintiff based on
their relative degrees of fault. There are two basic
forms of comparative fault.
1) Pure comparative negligence
In jurisdictions that have adopted the doctrine
of pure comparative negligence, a plaintiff’s
contributory negligence is not a complete bar to
recovery. Instead, the plaintiff’s full damages
are calculated by the trier of fact and then
reduced by the proportion that the plaintiff’s
fault bears to the total harm (e.g., if the
plaintiff’s full damages are $100,000, the
plaintiff is 80% at fault, and the defendant is
20% at fault, then the plaintiff will recover
$20,000). Only a minority of jurisdictions have
adopted the pure comparative negligence
approach.

2) Modified or partial comparative fault
A majority of comparative-fault jurisdictions
apply modified comparative fault. In these
jurisdictions:
i) If the plaintiff is less at fault than
the defendant, then the plaintiff’s recovery
is reduced by his percentage of fault, just
as in a pure comparative-fault jurisdiction;
ii) If the plaintiff is more at fault than
the defendant, then the plaintiff’s recovery
is barred, just as in a contributory-
negligence jurisdiction;
iii) In the vast majority of modified
comparative-fault jurisdictions, if the
plaintiff and the defendant are found to be
equally at fault, then the plaintiff
recovers 50% of his total damages. In a few
modified comparative-fault jurisdictions,
the plaintiff recovers nothing when the jury
finds that the plaintiff and the defendant
are equally at fault.
3) Multiple defendants
In either a pure comparative-fault or a modified
comparative-fault jurisdiction, the plaintiff’s
degree of negligence is compared to the total
negligence of all defendants combined.
4) Relationships to other defenses
i) Last clear chance no longer applies as
a separate doctrine in comparative-fault
jurisdictions.
ii) Comparative fault will reduce the
plaintiff’s recovery even if the defendant’s
conduct is willful, wanton, or reckless, but
it will not reduce the plaintiff’s recovery
for intentional torts.
iii) The impact of comparative fault on
assumption of risk is considered in §
IV.K.2.c. Unreasonably proceeding in face of
known, specific risk, below.

5) Illustrations
i) Single defendant, pure comparative—The
defendant is 55% negligent and the plaintiff
is 45% negligent in causing the accident.
They each have $100,000 in damages. The
plaintiff will recover $55,000 from the
defendant ($100,000 minus $45,000, which
represents the plaintiff’s proportionate
fault of 45%), and the defendant will
recover $45,000 from the plaintiff. The
plaintiff will have a net recovery of
$10,000 because the defendant’s damages will
be offset against the plaintiff’s damages.
ii) Single defendant, modified or partial
comparative—Same facts as above, except that
the defendant will not recover anything
because he was more than 50% at fault.
iii) Multiple defendants, modified or
partial comparative—Two defendants are
negligent: Defendant 1 is 20% negligent;
Defendant 2 is 45% negligent. Combined,
their negligence is
65%. The plaintiff is 35% negligent. The
plaintiff can recover $65,000 from either
Defendant 1 or Defendant 2 under the theory
of joint and several liability. The paying
defendant can then seek contribution from
the nonpaying defendant. If either
defendant suffered damages, he also has a
right of recovery against either of the
other two negligent parties because each
one’s negligence is less than the total
negligence of the other two.
Note: When comparative negligence exists
(either pure or modified), it supersedes all
other affirmative defenses, except
assumption of the risk.
d. Imputed contributory negligence
Imputed contributory negligence occurs when another
person’s fault is “imputed” to the plaintiff to
prevent or limit his recovery due to the other

person’s fault. For example, an employee’s negligent
driving may prevent or reduce an employer’s recovery
from a third party if the employer’s car is damaged
by the third party’s negligence. The fault of one
business partner can be imputed to another business
partner as contributory negligence when the second
party is suing a third party.
Imputed contributory negligence is disfavored.
Imputed contributory negligence does not apply to:
i) A married plaintiff whose spouse was
contributorily negligent in causing the harm, in
a suit against a third party;
ii) A child plaintiff whose parent’s negligence
was a contributing cause of her harm, in a suit
against a third party;
iii) An automobile passenger suing a third-party
driver if the negligence of the driver of the car
in which the passenger was riding also
contributed to the accident; or
iv) An automobile owner in an action against a
defendant driver for negligence when the driver
of the owner’s car also was negligent.
EXAM NOTE: Common fact patterns of imputed fault
to look for on examinations are ones involving
the employers and their employees and business
partners.
e. Distinguishing comparative fault, contribution,
and several liability
Comparative fault, contribution, and several
liability all involve comparing the level of
egregiousness of fault of parties in tort
litigation. However, each of these concepts
operates in a different context:
i) Comparative fault always involves comparing
the fault of a plaintiff with the fault of one
or more defendants;
ii) Contribution involves comparing the
degrees of fault of co-defendants in an action

or as the result of a motion by one
codefendant against another co-defendant; it
does not affect the liability of any of the
defendants to the plaintiff;
iii) Several liability, in the minority of
jurisdictions where it operates, involves
comparing the levels of fault of the
codefendants; however, unlike with
contribution, the issue is how much the
plaintiff will receive from each defendant.
2. Assumption of the Risk
a. Exculpatory clauses in contracts

In general, parties can contract to disclaim
liability for negligence. But, courts will not
enforce exculpatory provisions:
i) Disclaiming liability for reckless or
wanton misconduct or gross negligence;
ii) When there is a gross disparity of
bargaining power between the parties;
iii) When the party seeking to apply the
exculpatory provision offers services of great
importance to the public that are a practical
necessity for some members of the public such
as medical services;
iv) If the exculpatory clause is subject to
typical contractual defenses such as fraud or
duress; or
v) When it is against public policy to
enforce agreements that insulate people from
the consequences of their own negligence.
Some jurisdictions require that the contract
explicitly state that claims “based on
negligence” are disclaimed.
Generally, common carriers, innkeepers, and
employers cannot disclaim liability for
negligence. State statutes often provide that

certain additional businesses cannot disclaim
liability for negligence.
Many courts now hold that disclaimer of
liability by contract negates the fact that
the defendant owes a duty of care to the
plaintiff in the first place. This causes the
plaintiff’s prima facie case for negligence to
fail, rather than acting as an affirmative
defense of assumption of the risk.
b. Participants and spectators in athletic events
In a negligence claim brought by a spectator of or
a participant in an athletic event or similar
activity, the spectator or participant necessarily
subjects himself to certain risks that are usually
incident to and inherent in the game or activity.
Some courts hold that the other players or
facility owners therefore do not owe the
spectators a duty of care; others allow the
defendant to defend against the claim using the
affirmative defense of assumption of the risk.
c. Unreasonably proceeding in the face of known,
specific risk
Traditionally, and in many jurisdictions today, a
plaintiff’s voluntarily encountering a known,
specific risk is an affirmative defense to
negligence that bars recovery. Most courts hold
that the voluntary encountering must also be
unreasonable.
In contributory-negligence jurisdictions and in a
minority of comparative-fault jurisdictions, this
form of assumption of the risk remains a total bar
to recovery.
In most comparative-fault jurisdictions, this form
of assumption of the risk has been merged into the
comparative-fault analysis and merely reduces
recovery. The plaintiff’s awareness of the risk
is taken into account in determining the degree to
which the plaintiff is at fault, but it also can
be considered in determining the reasonableness of
the plaintiff’s or the defendant’s actions.

Consent distinguished: Consent is a defense to
intentional torts, whereas assumption of the risk
applies to negligence actions and actions alleging
strict liability.
XIII. STRICT LIABILITY
A prima facie case for strict liability requires:

(i) an absolute duty to make the plaintiff’s person or
property safe,
(ii) breach,
(iii) actual and proximate causation, and
(iv) damages.
The three general situations in which strict liability is
imposed are:
i) Dangerous
activities;
ii) Animals; and
iii) Defective or
dangerous products.
MNEMONIC: DAD
EXAM NOTE: The “DAD” situations are the only situations in
which a defendant can be liable without fault.
XIV. Strict liability for abnormally dangerous activities,

wild animals, and abnormally dangerous animals.
A. Standard approach is the Restatement (Second) of Torts §

520 approach, which partially incorporates Rylands v.
Fletcher.
Rylands v. Fletcher, LR 3 HL 330 (1868) (involving the

release of water from the defendant’s reservoir
onto the plaintiff’s property). The narrow
holding of Rylands—that an owner of property with
a dam on it is strictly liable for the harm
caused by the release of water due to the
bursting of the dam—is still followed.
But see Restatement (Third) of Torts: Liability for

Physical Harms § 20:
(a) A defendant who carries on an abnormally

dangerous activity is subject to strict liability for
physical harm resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and

highly significant risk of physical harm
even when reasonable care is exercised by
all actors; and
(2) the activity is not a matter of common
usage.
EXAM NOTE: The focus is on the inherent

nature of the activity, not on how careful
the defendant may or may not have been in
conducting the activity.
Common abnormally dangerous activities
include mining, blasting, using explosives,
fumigating, excavating, disposing of
hazardous waste, storing gasoline in
residential areas, storing toxic chemicals
and gases, and storing large quantities of
water and other liquids.
(c) Scope of Risk
Strict liability for an abnormally dangerous
activity exists only if harm that actually occurs
results from the risk that made the activity
abnormally dangerous in the first place.
Example: If the defendant’s employee drops a
heavy package of explosives, hitting the
plaintiff’s head, and causing a concussion, the

plaintiff’s claim is for negligence, not strict
liability. The concussion is not the type of
harm (i.e., an explosion) that makes the use of
explosives an abnormally dangerous activity.
As in the case with superseding causes in
negligence (see § IV.E.3.c. Intervening and
superseding causes, supra), the defendant’s
liability can be cut off by unforeseeable
intervening causes.
(d) Airplanes
In the early stages of commercial aviation, the owner
or operator of an aircraft was strictly liable to
persons and objects on the ground that were injured
by objects that fell or were dropped from the
aircraft or by the aircraft itself falling and
crashing. Strict liability applied to any physical
damage to the land under such circumstances.
The modern trend is to apply negligence law, not
strict liability, to such accidents.
Strict liability does not apply to harm suffered by
passengers or chattel within an aircraft due to a
crash.
However, crop dusting is still subject to strict
liability.
B. While strict liability is generally accepted, the exact

contours of the doctrine have remained unclear. Not all
jurisdictions, e.g., Minnesota, have automatically
accepted the Restatement formulation.
C. Strict liability for wild animals. R3 § 22 provides that

“A wild animal is an animal that belongs to a category of
animals that have not been generally domesticated and
that are likely, unless restrained, to cause personal
injury.”
For example, a wild elephant that has been tamed and

exhibited as part of a circus remains categorized as
a wild animal.

1. Dangerous propensity
The possessor of a wild animal is strictly liable for
harm done by that animal, in spite of any precautions
the possessor has taken to confine the animal or
prevent the harm, if the harm arises from a dangerous
propensity that is characteristic of such a wild
animal or of which the owner has reason to know.
The plaintiff must not knowingly do anything to bring
about his own injury.
2. Plaintiff’s fearful reaction
Strict liability applies to an injury caused by a
plaintiff’s fearful reaction to the sight of an
unrestrained wild animal, in addition to injuries
caused directly by the wild animal.
3. Liability to trespassers
Licensees or invitees injured by a wild animal may
recover in strict liability. A landowner is not
strictly liable for injuries inflicted by his animals
against an undiscovered trespasser, except for
injuries inflicted by a vicious watchdog. Remember,
however, that a landowner may be liable on a
negligence theory.
D. Strict liability for abnormally dangerous animals. R3 §

23 provides that “An owner or possessor of an animal that
the owner or possessor knows or has reason to know has
dangerous tendencies abnormal for the animal's category
is subject to strict liability for physical harm caused
by the animal if the harm ensues from that dangerous
tendency.”
E. Defenses
1. Failure to discover the danger is not a defense.

2. Voluntarily encountering a known danger (secondary
assumption of risk) is a complete defense.
3. Post-comparative fault. The defenses may be merged
into a single defense of contributory negligence.
However, failure to discover the danger is arguably
still not a defense, even with comparative fault

4. Restatement (Third) of Torts, Apportionment of
Liability § 8 (2000) would not make any exceptions.
F. Domestic Animals
a. Known to be dangerous
A domestic animal’s owner is strictly liable
for injuries caused by that animal if he knows
or has reason to know of the animal’s dangerous
propensities and the harm results from those
dangerous propensities. Otherwise, at common
law, a domestic animal owner is liable only for
negligence.
b. “Dog-bite” statutes
Many states have enacted “dog-bite” statutes that
hold owners of dogs or other domestic animals
designated in the statute strictly liable for
damages resulting from personal injuries.
G. Owner’s Animals on Another’s Land

The owner of any animal, wild or domestic (other than
household pets), is strictly liable for any
reasonably foreseeable damage caused by his animal
while trespassing on the land of
another. The exception for household pets (the Third
Restatement specifically mentions dogs and cats) does
not apply if the owner knows or has reason to know
that the dog or cat is intruding on another’s
property in a way that has a tendency to cause
substantial harm. Rest. 3d: Liability for Physical
and Emotional Harm § 21. The general negligence
standard applies if an animal strays onto a public
road and contributes to an accident there.
H. Plaintiff’s Conduct
In a case alleging strict liability against an animal
owner, the plaintiff’s contributory negligence may

reduce recovery in some comparative-fault states, but
it will not eliminate recovery in a
contributory-negligence jurisdiction. (See § V.D.
Defenses to Strict Liability, infra.)
However, if the plaintiff is aware of the dangerous
propensity of an animal and taunts the animal, he may
be prohibited from recovering under the doctrine of
assumption of the risk.
I. Landlord’s Liability
In most jurisdictions, the landlord is not liable for
harms caused by animals owned by his tenants. The
landlord lacks the required element of control over
the animal. Some jurisdictions impose liability on
the landlord based on negligence if the landlord is
aware of the dangerous propensities of the dog or
other animal.
XV. Products liability
MacPherson v. Buick Motor Co. (N.Y. 1916) (casebook 575) – demise

of privity in negligence cases; privity of contract – that is, a
manufacturer who did not sell directly to the injured plaintiff
could not be sued at all by that person.
Henningsen v. Bloomfield Motors, Inc. (161 A.2d 69 (N.J. 1960)

(casebook 577) - lack of privity nor the disclaimer prevented
imposition of liability against both; imposed strict liability
Greenman v. Yuba Power Products, Inc. (Cal. 1963), (casebook 578)

– rule of strict liability, tort duty, rendering irrelevant
commercial code limitations.
Then Restatement (Second) of Torts came out.
A. Types of defects
1. Design defects
2. Manufacturing defects
3. Inadequate warnings
B. The theories of recovery
1. Available theories?
a. Strict liability
Under strict liability, the manufacturer,

retailer, or other distributor of a defective
product may be liable for any harm to persons or
property caused by such product.
EXAM NOTE: Strict products liability is only one
way that a manufacturer or supplier of a product
can be held liable for a plaintiff’s injuries.
Remember also to consider breach of warranty and
negligence.
1. Elements of Claim
In order to recover, the plaintiff must
plead and prove that:
i) The product was defective (in
manufacture, design, or failure to warn);
ii) The defect existed at the time the
product left the defendant’s control; and

iii) The defect caused the plaintiff’s
injuries when used in an intended or
reasonably foreseeable way.
2. Defective Product
A product is defective when, at the time of
the sale or distribution, it contains a
manufacturing defect, a design defect, or
inadequate instructions or warnings (i.e.,
failure to warn).
a. Manufacturing defect
A manufacturing defect is a deviation from
what the manufacturer intended the product
to be that causes harm to the plaintiff.
The test for the existence of such a defect
is whether the product conforms to the
defendant’s own specifications.
b. Design defect
Depending on the jurisdiction, courts apply
either the consumer expectation test or the
risk-utility test to determine whether a
design defect exists. Many jurisdictions
use various hybrids of the two tests, and
some states allow the plaintiff to prove a
design defect under either test.
i) Consumer expectation test: Does
the product include a condition not
contemplated by the ordinary
consumer that is unreasonably
dangerous to him?
ii) Risk-utility test: Do the risks
posed by the product outweigh its
benefits?
Under the risk-utility test, in a
majority of jurisdictions and under
the Third Restatement, the plaintiff
must prove that a reasonable
alternative design was available to
the defendant and the failure to use
that design has rendered the product

not reasonably safe. The alternative
design must be economically feasible.
Note: Merely providing a warning does
not necessarily prevent a product from
being unreasonably dangerous.
c. Failure to warn
An action brought under a failure-to-
warn theory is essentially the same as
a design defect claim, but the defect
in question is the manufacturer’s
failure to provide an adequate warning
related to the risks of using the
product. A failure to warn defect
exists if there were foreseeable risks
of harm, not obvious to an ordinary
user of the product, which risks could
have been reduced or avoided by
providing reasonable instructions or
warnings. The failure to include the
instructions or warnings renders the
product not reasonably safe.
1) Prescription drugs
Under the “learned intermediary”
rule, the manufacturer of a
prescription drug typically
satisfies its duty to warn the
consumer by informing the
prescribing physician of problems
with the drug rather than
informing the patient taking the
drug. Rest. 3d: Products
Liability § 6. There are several
exceptions, including, most
importantly:
i) If the manufacturer is aware
that the drug will be
dispensed or administered
without the personal
intervention or evaluation
of a healthcare provider,

such as when a vaccine is
administered through a mass
inoculation; and
ii)As a result of a federal
statute, in the case of
birth control pills.
d. Inference of defect
A plaintiff is entitled to a res ipsa
loquitur–like inference that a product
defect existed if the harm suffered by
the plaintiff:
i) Was of a kind that ordinarily
occurs as a result of a product
defect; and
ii) Was not solely the result of
causes other than a product defect
existing at the time of sale or
distribution.
Rest. 3d: Products Liability § 3.
This inference is frequently
applied in cases involving a
manufacturing defect when the
product is lost or destroyed as a
consequence of the incident that
caused the plaintiff’s harm.
3. Plaintiffs
To bring a strict-liability action, a
plaintiff is not required to be in privity
of contract with the defendant. Anyone
foreseeably injured by a defective product
or whose property is harmed by the product
may bring a strict-liability action.
Appropriate plaintiffs include not only
purchasers, but also other users of the
product and even bystanders who suffer
personal injury or property damage.
4. Defendants

a. Business of seller
To be subject to strict liability for a
defective product, the defendant must be
in the business of selling or otherwise
distributing products of the type that
harmed the plaintiff.
b. Chain of distribution
Included as a seller are the
manufacturer of the product, its
distributor, and its retail seller.
c. Even if not responsible for the defect
As long as the seller is a commercial
supplier of the product, she is subject
to strict liability for a defective
product, even if the revenue from sales
of the product is not a significant
portion of her business. The seller is
strictly liable even if she was not
responsible for the defect in any way and
even when the product is not purchased
directly from her.
d. Seller of a component part
The commercial supplier of a component,
such as sand used in manufacturing cement
or a switch used in an electrical device,
is subject to liability if the component
itself is defective, but not when the
component is incorporated into a product
that is defective for another reason.
However, the commercial supplier of a
component may be liable if that supplier
substantially participates in the process
of integrating the component into the
design of the assembled product and that
product is defective due to the
integration.
e. Indemnification
Ordinarily, if the plaintiff recovers
from the retailer solely for a product

defect that existed at the time the
product left the manufacturer’s control,
the retailer is able to recover from the
manufacturer in an indemnification
action.
f. Lessor
Generally, a lessor of a commercial
product (e.g., car, boat, tools) is
subject to strict liability for a
defective product.
g. Products and services
A seller that provides both products and
services generally is liable if the
defective product is consumed, such as
food at a restaurant, but not if the
product is only used, such as the vendor
of a balloon ride when the balloon
itself is defective. Hospitals and
doctors generally are treated as
providing a service, rather than a
product, in cases in which the defective
product is used as a tool, loaned to the
patient, or even implanted in the
patient.
h. Exclusions
1) Casual seller
Because the seller must be in the
business of selling similar products,
a casual seller, such as an
individual car owner who sells a car
to his neighbor or an accountant who
sells her office furniture to another
businessperson, is not subject to
strict liability.
2) Auctioneer
Similarly, an auctioneer of a product
generally is not subject to strict
liability with respect to the
products auctioned.

5. Damages
As with negligence claims, the plaintiff is
entitled to recover damages for any personal
injury or property damage. A claim for
purely economic loss generally is not
allowed under a strict-liability theory but
must be brought as a breach-of warranty
action, as must a claim for harm to the
product itself and any consequential damages
arising therefrom.
6. Defenses
a. Comparative fault
In a comparative-fault jurisdiction,
the plaintiff’s own negligence reduces
his recovery in a strict-products-
liability action in the same manner as
it is in a negligence action. For
example, in a pure comparative-fault
jurisdiction, the plaintiff’s recovery
is reduced by the percentage that the
plaintiff’s fault contributed to
causing her injury.
b. Contributory negligence
In a contributory-negligence
jurisdiction, the plaintiff’s
negligence generally is not a defense
to a strict-products-liability action
when the plaintiff negligently failed
to discover the defect or misused the
product in a reasonably foreseeable
way, but it generally is when the
plaintiff’s fault consisted of
unreasonably proceeding in the face of
a known product defect.
Note: Suppliers are required to
anticipate reasonably foreseeable
misuses of their products.
c. Assumption of risk

Voluntary and knowing assumption of the
risk is a complete bar to recovery in
contributory-negligence jurisdictions
and in a small number of the
comparative-fault jurisdictions. In
most comparative-fault jurisdictions, a
plaintiff’s assumption of a risk will
reduce his recovery in proportion to
degree of fault, but it will not be a
complete bar to recovery. Assumption
of the risk is a subjective standard.
The plaintiff must be aware of the
danger and knowingly expose himself to
it.
d. Product misuse, modification, or

alteration by the user
The misuse, alteration, or modification
of a product by the user in a manner
that is neither intended by nor
reasonably foreseeable to the
manufacturer typically negates
liability. On the other hand,
foreseeable misuse, alteration, or
modification usually does not preclude
recovery.
A majority of comparative-fault
jurisdictions treat product misuse as a
form of fault that reduces, but does
not eliminate, the plaintiff’s
recovery. A significant minority of
comparative-fault jurisdictions, and
most contributory-negligence
jurisdictions, hold that product misuse
totally bars recovery.
e. Substantial change in product
If the product substantially changes
between the time it is distributed by
the manufacturer and the time it
reaches the consumer (e.g., a part is
reconditioned), then this change may
constitute a superseding cause that

cuts off the liability of the original
manufacturer.
f. Compliance with governmental standards
Most often, compliance with
governmental safety standards is not
conclusive evidence that the product is
not defective. On the other hand, the
jury can consider evidence introduced
by the defendant that the product
complied with governmental standards
and also evidence offered by the
plaintiff on the product’s failure to
comply with these standards in deciding
whether the product is defective.
However, if a product complies with
federal safety statutes or regulations,
a state tort claim act may be “pre-
empted” if (i) Congress has explicitly
so indicated, (ii) Congress has
comprehensively regulated the field
(i.e., “field preemption”), or (iii) it
would be impossible for the
manufacturer to comply with both the
federal regulation and the requirements
of state tort law.
g. “State of the art”
In failure-to-warn and design-defect
cases, the manufacturer may introduce
as evidence the level of relevant
scientific, technological, and safety
knowledge existing and reasonably
feasible at the time of the product’s
distribution. In most jurisdictions,
compliance with this “state of the
art” standard does not bar recovery
against the manufacturer as a matter
of law. However, many states have
enacted statutes providing that
compliance with the state-of-the-art
standard is a total bar to recovery.

h. Statute of limitations issues
The statute of limitations begins to
run against the plaintiff with a
personal injury whenever he discovers,
or in the exercise of reasonable care
should discover, his injury and its
connection to the product. As a
result, the statute of limitations may
not preclude an action against a
manufacturer or other seller until many
decades after the manufacture and
distribution of the product. For
example, asbestos-related diseases may
not manifest themselves until decades
after the distribution of the asbestos
insulation and the plaintiff’s exposure
to it.
i. Contract disclaimers, limitations, and
waivers
A disclaimer or limitation of remedies
or other contractual exculpation (i.e.,
waiver) by a product seller or other
distributor does not generally bar or
reduce an otherwise valid products-
liability claim for personal injury.
Exam Note: The immunity created by
workers’ compensation statutes protects
only the plaintiff’s employer from most
tort claims brought by the victim. It
does not provide any immunity for other
defendants. Frequently, the plaintiff-
employee is injured while working with a
defective machine tool or with a toxic
substance, such as asbestos insulation.
Workers’ compensation does not bar his
claim against the manufacturer of these
products.
b. Warranty (express, implied, fitness for a

particular purpose)

Products-liability actions brought under
warranty theories generally may be brought not
only against a retailer of a product, but also
against a manufacturer or distributor of goods,
at least when damages are sought for personal
injury or property damage.
1. Implied Warranties
a. Two types
1) Merchantability
The implied warranty of
merchantability warrants that the
product being sold is generally
acceptable and reasonably fit for
the ordinary purposes for which it
is being sold. The seller must be a
merchant with respect to the kind of
goods at issue.
2) Fitness for a particular purpose
The implied warranty of fitness
warrants that a product is fit for
a particular purpose, but only if
the seller knows the particular
purpose for which the product is
being purchased and the buyer
relies on the seller’s skill or
judgment in supplying the product.
b. Claims
Any product that fails to live up to
either of the above warranties
constitutes a breach of the defendant’s
warranty; the plaintiff need not prove
any fault on the defendant’s part.
The plaintiff may recover damages for
personal injury and property damage, as
well as for purely economic loss.
Alternative versions of the Uniform
Commercial Code (UCC) provisions

governing warranties provide differing
versions of who can recover. For
example, the most restrictive UCC
provisions allow only the purchaser or
a member of her family or household to
recover, while a more inclusive
variation essentially allows any
foreseeable victim to recover.
2. Express Warranties
An express warranty is a guarantee—an
affirmation of fact or a promise—made
by the seller regarding the product
that is part of the basis of a bargain.
A seller is liable for any breach of
that warranty, regardless of fault.
Damages for personal injury or property
damage are recoverable.
3. Defenses to Warranty Claims
a. Disclaimers
Although the seller generally can
disclaim warranties, in the case of
consumer goods, any limitation of
consequential damages for personal
injury is prima facie unconscionable.
In the case of express warranties, a
disclaimer is valid only if it is
consistent with the warranty, which
it usually is not.
b. Tort defenses
1. Assumption of the risk
Most jurisdictions hold that
the plaintiff’s unreasonable,
voluntary encountering of a
known product risk bars
recovery.
2. Comparative fault

Most comparative-fault
jurisdictions reduce recovery
based on warranty claims in
the same way they would
strict-products liability
claims.
3. Contributory negligence
In contributory-negligence
jurisdictions, most courts
hold that contributory
negligence does not bar a
plaintiff’s warranty claim,
except when the contributory
negligence consists of the
unreasonable encountering of
a known risk (i.e., the
overlap between contributory
negligence and assumption of
the risk).
4. Product misuse in implied
warranty claims
With or without using the
language of “product misuse,”
most courts find that product
misuse prevents recovery
under the implied warranty of
merchantability when the
product is warranted to be
fit for “ordinary purposes.”
5. Failure to provide notice of
breach
A warranty claim generally
fails if the plaintiff fails
to provide the seller with
notice of the breach of
warranty within the
statutorily required time
period (when applicable) or a
reasonable period of time.

c. Negligence
d. Misrepresentation
e. Fraud (common law or consumer protection statute
violation)
2. Common elements
a. For negligence, strict liability, and implied

warranty, a defect (defective condition
unreasonably dangerous to the user, consumer, or
the user's or consumer's property). Implied
warranty is effectively superseded by products
liability theory. It is no longer a viable cause
of action in cases where products liability
theory applies.
b. Defect must have existed when it left the
seller's possession
c. Defect must have caused injury to plaintiff or
damage to plaintiff's property
3. Merger
a. Design defects. Plaintiff will almost always

have to prove the existence of a reasonable
alternative design to prove that the product is
defective. In doing so, plaintiff effectively
establishes negligence, although the trier of
fact does not have to find negligence to hold a
product seller liable. See Restatement (Third)
of Torts: Products Liability § 2(b) (1998).
Strict liability and negligence theories are
merged.
b. Warning defects. The R3 § 2(c) focuses on
whether reasonable warnings would have avoided
the risk, but the plaintiff must prove that the
defendant knew or should have known of the danger
presented by the product. Negligence and strict
liability merge.
c. Manufacturing defects. The manufacturer is
subject to strict liability. The plaintiff may,
but is not required to, prove the manufacturer’s
negligence. R3 § 2(a).
4. Standards for determining defectiveness
a. Design defects.

(1) Consumer expectation standard (product
presents a danger that an ordinary consumer
would not anticipate)
(2) Risk utility. The R3 standard.
(3) Dual standard approach. Product is defective
if it fails to satisfy either standard.
b. Warning defects. Did the manufacturer or seller

provide reasonable warnings of the dangers
associated with the use of the product as well as
instructions for safe use?
c. Manufacturing defects.
(1) Consumer expectation standard.

(2) R3 § 2 (a). Did the product depart from its
intended design?
5. Express warranty may exist even if the product is not

defective; it rests upon a showing that the seller
warranted to the product to have certain
characteristics that it didn't have and that the
warranty became part of the basis of the bargain.
U.C.C. § 2-314.
6. Implied warranty of fitness for a particular purpose

requires a showing that the product was warranted for
a specific purpose and that the buyer relied on that
representation. U.C.C. § 2-315.
7. Fraud and misrepresentation rest upon specific

representations made about the product, somewhat like
the express warranty.
C. What plaintiffs are entitled to recover?
1. Users
2. Consumers
3. Bystanders
D. What defendants are subject to liability? The seller or

lessor must be in the business of selling or leasing the
product in question.
1. Sellers (manufacturers, wholesalers, retailers)

2. Lessors

3. Providers of services? Is the service combined with
a product?
4. Successor corporations
E. What damages are recoverable under the theories?
1. Personal injury (and economic loss flowing from the

injury), not subject to disclaimer.
2. Property damage (but what kind of property damage?

Damage to the product itself? Damage to other
property?) If there is a person- endangering
defect that results in either destruction of the
product itself or damage to other property, and the
loss to the plaintiff is not commercial, there is a
greater likelihood that strict liability will apply.
If the plaintiff is a commercial enterprise, and
there is not a person-endangering defect, and the
product simply doesn't work as well as expected,
strict liability principles will probably not apply.
3. Pure economic loss? Strict liability is probably

inapplicable.
F. How is the products liability claim proved?
1. Res ipsa (or the strict liability equivalent), for

manufacturing flaw cases and perhaps for design
defect cases as well.
2. Proof of a feasible alternative, particularly in

design defect cases (includes state-of-the-art
issues. See Genie Industries, Inc. v. Matak (Tex.
2015), p. 595.
G. Defenses
1. Pre-comparative fault: Restatement (Second) of Torts

§ 402A, comment n controls.
2. Post-comparative fault: contributory negligence,

secondary assumption of risk, product misuse, and
failure to mitigate or avoid an injury should merge
into a single defense of contributory negligence,
which is compared to the defendant's negligence or

strict liability.
3. Restatement (Third) of Torts: Products Liability

leaves it up to individual states.

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Torts: The Common Law Process

I. 1INTENTIONAL TORTS INVOLVING PERSONAL INJURY

A prima facie case for any intentional tort, including

Van Camp v. McAfoos (Iowa 1968) pg.8

Garratt v. Dailey 279 P.2d (Wash 1955) pg.33-35

The defendant acts intentionally if:

Torts – Negligence Outline – Cari Watson 1

Monetary damages cannot exceed $1,000

Note: Intent is satisfied even if the actor does

i. Minor must willfully or maliciously cause injury to

ii. The intent has to be attached to the consequence,

Parental liability for the torts of their minor children

Common law rule

Parents are not vicariously liable for the torts of their

Vicarious liability- responsibility upon one person for the

Wantonly- recklessly or negligently

Statutes imposing parental liability exist in most states but

(a) The child’s tort must have been committed

Torts – Negligence Outline – Cari Watson 2

Often the parents will have an insurance policy that will

b. Transferred intent

Torts – Negligence Outline – Cari Watson 3

Torts – Negligence Outline – Cari Watson 4

Torts – Negligence Outline – Cari Watson 5

Torts – Negligence Outline – Cari Watson 6

An assault is the plaintiff’s reasonable apprehension

White v. Muniz 999 P.2d 814 (Colo. 2000)

Baska v. Scherzer, 156 P .3d617 (Kan 2007)

Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991)

Minn. Stat. s540.18.rtf

1. Bodily Contact

Torts – Negligence Outline – Cari Watson 7

Torts – Negligence Outline – Cari Watson 8

A defendant is liable for intentionally or recklessly

Torts – Negligence Outline – Cari Watson 9

Torts – Negligence Outline – Cari Watson 10

Second Restatement of Torts § 35 (1965) (R3 as well)

McCann v. Wal-mart Stores

False imprisonment results when a person acts:

Torts – Negligence Outline – Cari Watson 11

Torts – Negligence Outline – Cari Watson 12

1. Express Consent

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1. Use of Reasonable Force

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One is justified in using reasonable force in defense

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1. Reasonable Force Allowed

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A parent may use reasonable force or impose reasonable

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Trespass to land occurs when the

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A defendant who acts to prevent a threatened

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Surocco v. Geary 3 Cal. 69 (1853)D blew up and destroyed P’s house to

Under the doctrine of public necessity, private

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1. Private Nuisance