Subject: Torts II Outline

Semester: Spring 2017

Professor: Modak-Truran
Chapter 4: Duties and Limitations
A plaintiff bringing a suit against a defendant for negligence traditionally must prove five
elements: (1) duty; (2) breach of duty; (3) cause in fact; (4) proximate cause; and (5)
damages.

A. Duties Arising from Affirmative Acts

The law generally imposes duties of care on people when they engage in affirmative acts
the sorts of acts that can create risks for others. This is the most common type of duty.
Duties arising from acts are so pervasive that some analysts consider it more useful to
regard this as the background rule of torts: people have duties to act with reasonable care
unless some exception appliesa no duty rule carved out for reasons of policy.
Duty is a question of law.
Thus, Restatement 3d Section 7: Duty: (a) An actor ordinarily has a duty to exercise
reasonable care when the actors conduct creates a risk of physical harm. (b) 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.
Nonfeasance- doing nothing (a defendant who does nothing has no duty of
care to others; no liability/Section 315 provides that liability is limited to those
situations in which the D some special relationship can be established.
Misfeasance- affirmative acts done carelessly, for which defendants may be
held liable.
Restatement 2d Section 314: The fact that the actor realizes or should realize that
action on his part is necessary for anothers aid or protection does not of itself
impose upon him a duty to take such action.
Restatement 2d Section 321: Duty to act when prior conduct is found to be
dangerous: (1) if the actor does an act, and subsequently realizes or should realize
that it has created an unreasonable risk of causing physical harm to another, he is
under a duty to exercise reasonable care to prevent the risk from taking effect. (2)
The rule stated in Subsection (1) applies even though at the time of the act the actor
has no reason to believe that it will involve such risk.
Restatement 2d Torts Section 322: Duty to Aid Another Harmed By Actors Conduct:
If the actor knows or has reason to know that by his conduct, whether tortious or
innocent, he has caused such bodily harm to another as to make him helpless and in
danger of further harm, the actor is under a duty to exercise reasonable care to
prevent such further harm.

Liability No Liability
Wierum v. RKO Radio General Yania v. Bigan D worked in a coal mine.
Decedent came over and the D asked him for
D owned a radio station that sponsored a help draining the water from a trench. The
contest in which the first person to locate its decedent jumped into the trench and drowned.
DJ in the metropolitan area and answer a Widow sued the D for negligence saying that it
question, won a cash prize. Two teenagers was his fault that he drowned. Her three
racing at 80 mph to find the DJ force another arguments for negligence were: 1. Urged and
car off the road, killing the driver. The family enticed him to jump (argues this was an
sued the radio station. Jury awarded verdict affirmative act); 2. Failed to warn decedent of
for P. D appealed relying on Section 315: dangerous conditions -> the danger was open
absent a special relationship an actor is and obvious so no duty to warn; 3. Failed to go
under no duty to control the conduct of the to decedents rescue-> Bigan did not have a
third parties. legal obligation to go to his rescue unless he
Involves teenagers-> not as prudent as an was legally responsible for placing him in that
adult/also an argument that teenagers are danger R 314/shows a value of autonomy in tort
not sensitive to incentives law.
Holding: The decedent was a reasonable
Holding; The Ds argument is and prudent man in full possession of all
inapplicable bc the act was a his mental faculties, who undertook to
misfeasance, not a nonfeasance. perform an act which he knew or should
Liability is not predicated upon the Ds have known was intended with more or
failure to intervene for the benefit of less peril and it was the performance of
decedent but rather upon its creation that act and not any conduct on the
of an unreasonable risk of harm to him. defendants part that caused his
(misfeasance argument) limits Yania/verbal unfortunate death./rejects the affirmative act
invitation would possibly only apply to argument
teenagers
Stangle v. Firemans Fund Insurance Co. P
Soldano v. ODaniels bought a diamond ring, intending to sell it for
profit. He told his ex girlfriend that if she
D owned a saloon and an Inn. A man helped him sell it he would give her proceeds
entered the inn to call the police because a from the profit. The girlfriend met with
man had been threatened at the saloon. The Richards, a representative of a prospective
bartender refused to call the police and let buyer, to sell the ring. Richards stole the ring
him use the phone. The man was shot and while claiming to photograph it for insurance
killed and his sons brought suit against the purposes. The girlfriend attempted to use the
owner of the establishments. receptionists phone after explaining that the
The court emphasis the threat of immediate ring had been stolen, but the receptionist
physical harm to a person (Public policy refused. The P sued the D on the theory that it
places a great value on human life) had a duty, after being informed of the theft, to
make its telephone available. The verdict was
Holding: No liability if it was a private granted for the D.
residence; however if it is a public Rule: A duty would arise if and only if it
establishment a duty is created to were clearly conveyed that there exists
utilize an accessible phone in times of threat of imminent physical harm. (Limits
emergency when there is clearly Soldano)
imminent danger of physical bodily
harm (Public Policy) /limits liability to
public place

B. Duties Arising From Undertakings

Sometimes a D who had no duty to a stranger may acquire a duty by undertaking to
provide assistance or otherwise voluntarily assuming responsibilities.
 Restatement 2d Section 323: Negligent Performance Of Undertaking To
Render Services: One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as necessary for the
protection of the others person or things, is subject to liability to the other
for physical harm resulting from his failure to exercise reasonable care to
perform his undertaking, if (a) his failure to exercise such care increases the
risk of such harm, or (b) the harm is suffered because of the others reliance
upon the undertaking.
Restatement 2d 324. Duty of One Who Takes Charge Of Another Who is
Helpless: One who, being under no duty to do so, takes charge of another
who is helpless adequately to aid or protect himself is subject to liability to
the other for any bodily harm caused to him by (a) failure of the actor to
exercise reasonable care to secure the safety of the other while within the
actors charge, or (b) the actors discontinuing his aid or protection, if by
doing so he leaves the other in a worse position than when the actor took
charge of him.
Liability No Liability
Oneil v. Monetfirore Hospital Hurley v. Eddingfield

Mr. Oneil was having symptoms of a The D was the family physician. The
heart attack. When he and his wife decedent became very ill. Someone
arrived at the hospital, the nurse was sent with money and told his
refused to treat him bc the hospital did family doctor (special relationship) that
not treat patients with their insurance the decedent was gravely ill and
plan. The nurse phoned a doctor needed him immediately and that the
affiliated with the Oneils insurance decedent was relying on him because
plan, who after discussing Mr. Oneils no other doctor was available. Without
symptons told him to go home and any reason, the doctor refused to come
come back in the morning when a and the man died. (The doctor refused
doctor affiliated with the plan was to give treatment/no advice)
there. (The doctor gave medical advice, P sued D for 10,000 for refusal to enter
as opposed to Hurley) Mr. ONeil died into a contract for employment which
when he went home. His wife sued the caused the wrongful death of the
doctor and the hospital. (The patient victim. Trial court sustained the Ds
relied on the doctors advice and died demurrer to the complaint. The Indiana
as a result/R 323) Supreme Court affirmed.
The court said his license does not
Rule: The law is settled that a engage that he will practice at all
physician who undertakes to or on other terms than he may
examine or treat a patient and choose to accept. The act regulating
then abandons him, may be held the practice of medicine is a preventive
liable for malpractice. measure for practicing without a
COAs holding: held for the license, not a compulsive measure.
plaintiff that her claims should not No contract here because there was
have been dismissed. no acceptance. There is no
The doctor acquired a duty by statutory duty here created by the
undertaking to giving medical advice to licensing of the individual.
the patient who relied on it because of
his special knowledge and died. Franks v. United States Ps decedent
aboard a ship which suffered from
U.S. v. Lawter engine failure. The Coast Guard only
had one available boat for rescue,
The P and his wife out into the bay which was a heavy motor life boat. The
when a wave overtook their boat. They decedent was thrown overboard when
were about 500 yards from share and a rail broke when the lifeboat heeled
the bay was only 4 feet deep but the sharply while attempting to tow the
winds and waves were strong. (the boat. The Coast Guard crew attempted
water wasnt that deep so she could to rescue the decedent but he
have possibly been saved without their drowned. The administratix sued the
help) A U.S. coast guard helicopter U.S., claiming that the decedent
attempted to rescue the victims. One drowned bc the rescue boat had a
of the men dropped a cable to the Ps defective reverse gear which delayed it
wife but began to lift it before she could in reaching the victim when he fell
get herself into the sling; she was overboard; the life rings in the lifeboat
holding on with just her hands. Before were so secured that they could not be
the cable could be raised high enough immediately thrown overboard; and the
for her to get into the helicopter, she crew of the lifeboat was less than the
lost her grip and was fatally injured. customary Coast Guard complement.
The P sued, claiming that the death was (breach of duty argument)
caused by the Coast Guards negligence Rule: The responsibility of the
in allowing the most inexperienced public agency is the same as that of
member of the crew to operate the a private salvor. A salvor is not
cable. liable for a diligent rescue effort
that proved ineffectual for lack of
Holding: The court held that the adequate equipment, preparation,
Coast Guard placed the deceased or personnel.
in a worse position than when it An obligation to render aid can grow
took charge and negligently out of a relationship such as master
brought about her death. (Similar to servant. But thats not the type of
Oneil because the D undertaking to relationship here. There was only a
help the Ps and then seizing to do so) diligent rescue effort that proved
ineffectual for lack of adequate
Rule: It is hornbook law that under equipment, preparation, or personnel
such circumstances the law (no special relationship) No evidence
imposes an obligation upon that the Coast guard put Frank in a
everyone who attempts to do worse position, it was the defective rail
anything, even gratuitously, for on the boat that caused him to fall in.
another not injure him by negligent Holding: The court held that the
performance of that which he has U.S. was not liable.
undertaken. /R. 324

Marsalis v. La Salle The Ps were

shopping in the Ds store when the wife
Bloomberg v. Interinsurance
was scratched by the Ds cat. The P Exchange of the Automobile Club of
asked the D to keep the cat under Southern California Ps son was
observation for 14 days until it could be stranded on the side of the road and
determined whether or not it was rabid. called a tow truck and waited on them
The D agreed but took no special to arrive. The tow truck got lost and
precautions to keep the confined and could not find the boys. The boys truck
the cat escaped. After learning of the was struck by a drunk driver and death
cats escape, the wifes doctor gave the ensued. The Ps sued the Auto Club.
Pasteur treatment, of which she turned 323 (b) relied on the autoclubs
out to be allergic to and suffered illness. agreement to send the truck, thus the auto
It was later determined that the cat was club had a duty. Had they not relied on the
not rabid and the Ps sued the D for agreement, they could have tried to use
other methods to get home. The breach of
negligence.
duty was not knowing how to find the boys
The D was negligent in not confining
and failing to let the boys know. (Similar
the cat but was not negligent for the
argument as Lawter bc the D put the boys
cat scratch in general. Duty as a
in a worse position bc they could have been
storekeeper to confine the cat for 14
saved by someone else/such as their
days. The promise of agreement
parents 323(a) &(b)) (Also a parallel to
established the duty. 323 (b) reliance
Oneil bc the boys relied on the tow
upon the undertaking 321 Duty to Act
truckers just as the man relied on the
when prior conduct is found to be
doctors advice)
dangerous (1) if the actor does an act, and
subsequently realizes or should realize that
it has created an unreasonable risk of
causing physical harm to another, he is
under a duty to exercise reasonable care to
prevent risk from taking effect. he now
has a duty to confine the cat to protect
others from harm. (similar reliance theory
as Oneil) (the case is distinguishable for
Hurley because he undertook to make an
agreement with the P/in Hurley D refused
to make an undertake to offer aid)
(distinguishable from Frank bc there was
causation from the undertaking of the
agreement to confine the cat and then
failing to do so)

C. Special Relationships
1. Duties to Rescue or Assist Others
Liability No Liability
Petition of Trans-Pacific Fishing & Charles v. Seigfried The P alleged
Packing Co. 3 crewmen were thrown that the D knowingly allowed a 16 year
overboard at sea. The captain did not to become intoxicated and at the Ds
search for the three men bc of party and knowingly allowed her to
dangerous conditions. He did call for drive home drunk. She was killed in a
assistance but no one came. One was car wreck.
rescued after 14 hours and being Common Law Rule: There is no
attacked by a sea turtle. Another was cause of action for injuries arising
recused after 56 hours and had to be out of the sale or gift of alcoholic
hospitalized. The third man was never beverages. The rationale behind
found. the rule is that the drinking of the
Rule: It is the duty of every ship intoxicant, not the furnishing of it,
owner and ship operator to use is the proximate cause of the
every possible available means to intoxication and injury. Public Policy:
rescue from the sea any and all If a duty were imposed in every
persons and member of its crew instance where an underage driver is
who may be unfortunately washed involved in alcohol-related car accident
overboard. (special relationship of any adults who may qualify as a host
captain and crew and the captain has would be dragged into court. This
special training so there would be less would open a pandoras box bc we
risk for danger on his part) (by the law would not know where liability ends.
recognizing this special relationship its The courts want to provide an incentive
solving the multiple rescuer problem) for the drinker to act responsibly. The
(Distinguishable from Ylania bc the D social host could be held responsible
did not have special training and it even if the parents were also in
involved open and obvious danger) attendance.
Here the captain made no effort Holding: The D is not liable.
whatsoever and also failed to keep the
boat in a position so it could be used to
search or assist the men.
Holding: held that the captains
inaction was a breach of duty
constituting negligence on his part and
the owners.

Kelly v. Gwinnell The D was a social

host whos intoxicated guest killed a
third party in a car accident.
Holding: The social host is liable to
the third party. (arguments that this
approach decreases the incentive for
the drinker to use due care) Public
Policy argument: the burden imposed
on the social host should be measured
against the destruction to society
causesd by the drunk driver)

2. Duties to Protect Others from Third Parties

In cases involving a Ds duty to protect the P from harm inflicted by a third person,
the duty is sometimes based on the relationship not between the P and the D but
between the D and the party causing the harm.
2n R of Torts 315 General Principle: There is no duty so to control the of a
third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which
imposes upon the actor to control the third persons conduct, or (b) a special
 relation exists between the actor and the other which gives to the other a
right to protection.
Liability No Liability
Tarasoff v. Regents of the University Thompson v. County of Alameda:
of California:
Facts: P were the parents of a murdered Facts: Ps and their young son lived
student who sued psychotherapists and next door to the mother of a juvenile
police officers employed by the university. delinquent who was being released.
Poddar told his psychologists he intended to The juvenile told authorities that he
kill the Ps daughter when she returned would kill a young child once released.
home from abroad. The campus police
The county still released him w/o
detained him on Moores request but
released him. No one warned the deceased
warning those within the vicinity of his
of the Ds plans. P sued for failure to detain home of his release, and hill killed the
a dangerous patient, failure to warn of a Ps son within 24 hours. Ps sued the
dangerous patient, which was amended to county for failure to warn parents with
allege that the deceaseds death young children in the close vicinity.
proximately resulted from Ds negligent (no readily identifiable victim)
failure to warn deceased or others of her
danger. Ds state they owed no duty of care Unlike members of the general public
to the deceased and were free to act in in Tarasoff were the potential victims
careless disregard. were specifically known and precise,
the victims here would make up a
Ruling: The court ruled that while as a broad segment of the population and
general rule, one person owed no duty be general in nature. The likelihood
to control the conduct of another, nor to that such warnings be repeated would
warn those endangered by such do little as a practical matter to
conduct, but one exception to this rule stimulate safety measures. It also may
is when the D stands in some special substantially jeopardize rehabilitative
relationship to the foreseeable victim of efforts and stigmatize released
that conduct. Here the relationship of offenders.
the defendant therapists to either the
deceased or Poddar will suffice to
establish a duty of care. Therapists
need only exercise that reasonable
degree of skill, knowledge, and care
ordinarily possessed and exercised by
members of that specialty under similar
circumstances.

Public Policy Argument for Public

Safety: Here public policy favors that
protection of the confidential character
of the psychotherapist/patient
communications must yield to the
extent to which disclosure is essential
to avert danger to others. The
containment of such risks lies in the
public interest.
Police defendants had no special
relationship and are not liable.
(possibly bc police frequently hear
individuals make threats and cannot be
burdened with detaining everyone)
Distinguish Yania which had no
Special Relationship; Ds had no special
knowledge; victim was aware of the
risks; there was more risk to the
rescuer
315 (a) Here the actor is the doctor or the
doctors, and the third party is the killer.
(There was a special relationship b/t the
doctor and the killer, the doctor had special
training, and there was no burden on the
doctor to warn.) (No one else could have
warned Tatiana and they took no effort to
warn them so no multiple rescuer
argument)

Kline v. 1500 Mass. Ave. Corp.

Facts: was assaulted and robbed in the

common hallway of a building where she
rented her apartment. She sued the corp.
that owned the building. When the P first
arrived, there was security at the main
entrance but after a year there was no
longer a doorman and security at the other
entrances to the building declined as well.
Many tenants began getting robbed and
injured by third parties and the owner was
very aware of this. The DC gave judgment
as a matter of law to the D stating he had no
duty to protect his tenants and the CoA
reversed.

As a general rule, a private person does

not have the duty to protect another
from a criminal attack by a third person
but the tenant-landlord is a common
law tradition that the court has not
tampered with. However, in multiple
dwelling houses, this does not apply.
The landlord is no insurer of the
tenants safety but he is certainly no
bystander. Because he had notice of the
repeated incidents and the premises
occurred in the portion of the premises
exclusively w/n his control, and he also
had every reason to expect crime would
occur again and has the exclusive power
to take preventative action, it is not
unfair to place upon the landlord a duty
to take those steps which are w/n his
power to minimize the predictability
risk to tenants. Only the landlord can
take measures in this case. While the
tenants may end up paying due to
increased rent, they are already paying
by being robbed and assaulted. With the
notice of prior robberies, the owner
decreased night guards and monitoring
of the doors. The K can allocate
responsibility (however the K argument
is not really applicable bc the crime
occurred in the common area not her
specific apartment.)

Public Policy Arguments:

(1) Landlord on Notice of problems with
crime (& other tenants)
(2) Exclusive Control of Premises by
Landlord
(3) P lived in building since 1959
where there was a door person,,
and locked door
v.

Traditional Tort Doctrine NL:

(1) Nonfeasance
(2) Superseding Cause Criminal
Activity/proximate cause

The Public Duty Doctrine

Sovereign immunity: A common law doctrine that forbids lawsuits against
the government without its consent.
- The federal government and most states have waived this immunity for
various purposes, allowing tort suits to be brought against themselves under
certain circumstance.
When such suits are permitted, however, establishing the existence of a duty
often is difficult. For example, it might seem obvious that police have a duty
to come to the aid of people in distress; however, courts have interpreted this
as a duty to the public at large, rather than to any particular individual. A P
can only bring a lawsuit of this sort by demonstrating the existence of a
special relationship with the D.
Liability No Liability
Schuster v. City of New York Riss v. City of New York (1968)

Facts: Victim was informant who provided Facts: P ended a relationship with
police with information the led to the arrest boyfriend after finding out he was married.
of a nationally renowned criminal. The Boyfriend repeatedly threatened to kill or
victims role in the arrest was made public maim her if she left. P repeatedly went to
and he began receiving threats on his life. the police for protection and nothing was
Victim informed police, but no protection done. Boyfriend hired thugs to throw lye in
was provided. Victim was shot and killed 3 Ps face, which left her blind and scarred. P
weeks later. The P alleged that the city had sued the city.
a duty to protect people who had
cooperated in law enforcement. Rule: The amount of protection that
may be provided is limited by the
Rule: Where persons actually have resources of the community and by a
aided in the apprehension or considered legislative decision as to
prosecution of enemies of society, a how those resources are allocated.
reciprocal duty arises on the part of (The legislature decides how police
society to use reasonable care for resources are allocated; not courts)
their police protection, at least where
reasonably demanded or sought. Reasoning: For the court to proclaim a
new and general duty of protection in the
Public Policy: If held that the city has no law of tort, even to those who may be the
duty, it would become difficult to convince particular seekers of protection based on
the citizen to aid and co-operate with the specific hazards, could and would
law enforcement officers. Because the inevitably determine how the limited police
witness did something for the public good, resources of the community should be
a duty is owed to him to protect him from allocated and without predictable limits.
what may come as a result.
Reasoning: The government was active in Policy Issue: If the court created a new
calling upon private citizens for help in the duty of protection it would determine how
apprehension of the criminal; therefore, the limited police resources of the
failure to furnish police protection community should be allocated and without
(inaction/nonfeasance) would actively cause predictable limits. The effects could be
an injury to the person. that all the resources are invested in places
with higher crime patterns, leaving other
Holding: The city had a duty to use areas w/o protection.
reasonable care for the protection of
the victim which it is liable for Holding: The courts do not have the
breaching. power to impose this duty.
SEPARATION OF POWERS

(1) Witness for publicity of the city Dissent: Law prohibits P from carrying a
(2) Public Good: weapon for self-defense so she was
(a) helping system required to rely on the City for protection.
(b) put yourself in peril Imposing this duty on the city could result
in the adoption of better and more
considered procedures. No presumed
cure for the problem of crime would be
imposed on the city because the methods
of dealing with the problem is left
completely to the citys discretion. -- The
court would only make sure the city is held
responsible for its mistakes.

D. Duties Arising From The Occupation of Land

 1. Duties to Trespassers
Rest. 2nd of Torts: 333 Obligations to Trespassers- General Rule Except as stated in
334-339, a possessor of land is not liable to trespassers for physical harm caused by his
failure to exercise reasonable care
a) to put the land in a condition reasonably safe for their reception or
b) to carry on his activities as not to endanger them.
Rest. 2nd of Torts 334 - Activities Highly Dangerous to Constant Trespassers on
Limited Area- A possessor of land who knows, or from facts within his knowledge should
know, that trespassers constantly intrude upon a limited area thereof, is subject to liability
for bodily harm there caused to them by his failure to carry one activity involving a risk of
death or serious bodily harm with reasonable care for their safety.
Rest. 2nd of Torts 337 - Artificial Conditions Highly Dangerous to Known
Trespassers- A possessor of land who maintains on the land an artificial condition which
involves a risk of death or serious bodily harm to persons coming in contact with it, is
subject to liability for bodily harm caused to trespassers by his failure to exercise
reasonable care to warn them of the condition if a) the possessor knows or has reason to
know of their presence in dangerous proximity to the condition and b) the condition is of
such a nature that he has reason to believe that the trespasser will not discover it or realize
the risk involved.
Rest. 2nd of Torts 339 - Artificial Conditions Highly Dangerous to Trespassing
Children: A possessor of land is subject to liability for physical harm to children
trespassing thereon caused by an artificial condition upon the land if
a) the place where the condition exists is one upon which the possessor knows or has
reason to know that children are likely to trespass, and
b) the condition is one of which the possessor knows or has reason to know and which he
realizes or should realize will involve and unreasonable risk of death or serious bodily harm
to
such children, and
c) the children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it and
d) the utility to the possessor of maintaining the condition and the burden of eliminating
the danger are slight as compared with the risk to children involved and
e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to
protect the children.

Attractive Nusiance: From Landes and Posner, The Economic Structure of Tort Law 95-96
Children frequently are attracted to dangerous conditions on land, such as railroad turntables and
swimming holes. As Trespassers they would under conventional tort principles be Barred from
recovering damages if injured by one of those conditions even if the cost of fencing to the landowner
was also less than the expected accident cost so that the landowner was negligent too. Since the cost
of not trespassing is ordinarily much lower than the landowner's cost of fencing, this might
appear to be an alternative care case where the victim's cost of avoidance are lower than those of the
injurer, making no liability the appropriate rule. But by virtue of the attractive nuisance doctrine, the
landowner's negligence is not excused by the child's status as a trespasser.
The cost to the children -- More realistically, to their parents -- of avoiding the lure of the
attractive nuisance are often greater than the cost to the landowner of fencing out the
children.

Liability No Liability
Herrick v. Wixom The P snuck into the Haskins v. Grybko D went outside one
circus w/o a ticket. A clown set off a night to hunt woodchucks that had been
firecracker and a stray piece struck the P destroying his crop. The D heard rustling
in the eye 30 feet away. The P sued the in the bushes and saw a moving object.
circus for negligence. The trial court Thinking it was a woodchuck, the D shot
 brought a verdict for the D, after into the bushes; however, he had actually
instructing the jury that if the P was a shot and killed a person. The P sued D for
trespasser, the D owed him no duty that negligence and won in the trial court,
would enable him to recover. which ruled the D was guilty of ordinary
Rule: Where a trespasser is discovered negligence.
upon the premises by the owner or Rule: If the intestate was a trespasser
occupant, he is not beyond the pale of upon the Ds land, the latter was not
the law, and any negligence resulting liable for mere negligence. The D was,
in injury will render the person guilty however, under an obligation to refrain
of negligence liable to respond in from intentional injury and from
damages. willful, wanton and reckless conduct.
Analysis: The presence of the P was Holding: The victim was a trespasser;
known when the act occurred, and the therefore, the D was not liable for mere
danger to him from a negligent act was negligence. (the lack of knowledge that
also known. the object was a trespasser is key here bc
Holding: The question of whether a the D cannot intentionally injure someone
dangerous experiment should be attempted who he does not know to be a person)
in his presence, or whether an experiment
should be conducted with due care and
regard to his safety, cannot be made to
depend on whether he was a trespasser.

Licensees
a. Social guests
i. Ex. Others with owners consent
ii. Duty of ordinary care in undertaking activities, duty to warn of dangerous hidden conditions of
which owner is aware. There is no duty to inspect premises to make them safe, visitor takes premises
in the same condition the owner does.

Rest. 2nd of Torts 330 Licensee Defined: A licensee is a person who is privileged to enter or
remain on land only by virtue of the possessors consent.
Rest. 2nd of Torts 341 Activities dangerous to Licensee- A possessor of land is subject to
liability to his licensees for physical harm caused to them by his failure to carry on his activities with
reasonable care for their safety if, but only if,
a) he should expect that they will not discover or realize the danger and
b) they do not know or have reason to know of the possessors activities and of the risk involved.
Rest. 2nd of Torts 342 Dangerous Condition Known to Possessor- A possessor of land is
subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
a) the possessor knows or has reason to know of the condition and should realize that it involves an
unreasonable risk of harm to such licensees, and should expect that they will not discover or realize
the danger and
b) he fails to exercise reasonable care to make the condition safe or to warn the licensees of the
condition and the risk involved and
c) the licensees do not know or have reason to know of the condition and the risk involved

Duties to Licensees
Liability No Liability
Lordi v. Spiotta - LIABILITY - The plaintiff Davies v. McDowell National Bank The
and his son were staying with the plaintiffs went to visit Thomas who was
defendant at his home that had a hot water feeling ill after a doctor came and attended
boiler to Thomas they promised to stay with him
in the basement. The defendants son had until he felt better. Thomas and Mrs.
lit the hot water boiler and asked the Davies were found dead and Mr. Davies
 defendant to turn it off. The defendant was unconscious from to carbon monoxide
thought he did but in fact he hadnt. He poisoning due to the fire the damper on the
asked the plaintiff to go to the basement to chimney being rusted shut.
light the boiler when he did it caused an The court classifies the victims as
explosion that killed the plaintiffs son. social guests due to the existing
(social guest) relationship of stepfather/daughter
Rule: When a defendant asks a guest and their past association, and bc they
to enter a vicinity that through the were there to check on him.
defendants negligence is a dangerous ROL- Social guests are gratuitous
area he is liable for the damages that licensees. To this class the owner of
incur. premises is liable for bodily harm
The D on asking the P to go into the cellar caused by a latent dangerous condition
to light the heater certainly held out the existing thereon only if he has
place for the performance of the service knowledge of the condition and fails to
requested to be free from concealed peril; give warning to the guest and the
(active negligence (imperfectly guest are not likely to discover.
closing water heater valve) creates (Fireplace rusted shut but he had no
liability without knowledge) This knowledge of it and therefore no duty to
seems to be fudging a little bit by warn bc they were social guests. For
having passive and active negligence. social guests, there is no duty to
Here the distinction is not clear. inspect.); Passive negligencerusty
Normally, there is only a duty to warn flue rather than active negligence
of dangerous hidden conditions of
which the owner is aware and there is
no duty to warn or inspect for social
guests who take the premises in the
same condition the owner does.

Duties to Invitees
a. Business visitors or open public
i. Duty of reasonable care with respect to everything
ii. Duty to inspect the property and duty to warn visitors of hazards and all activities
Rest. 2nd of Torts 332: Invitee Defined-
1) an invitee is either a public invitee or a business visitor
2) a public invitee is a person who is invited to enter or remain on land as a member of the public for a
purpose for which the land is held open to the public
3) A business visitor is a person who is invited to enter or remain on land for a purpose for which the
land is held open to the public.
Comment 1- If the invitee goes outside of the area of his invitation, he becomes a
trespasser or a licensee, depending upon whether he goes there without the consent of the
possessor, or with such consent. Thus one who goes into a shop which occupies part of a
building, the rest of which is used as the possessors residence, is a trespasser if he goes
into the residential part of the premises without the shopkeepers consent; but he is a
licensee if the shopkeeper permits him to go to the bathroom or invites him to pay a social
call.
Rest. 2nd of Torts 341A Activities Dangerous to Invitees- A possessor of land is subject to liability
to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable
care for their safety if, but only if, he should expect that they will not discover or realize the danger, or
will fail to protect themselves against it.
Rest. 2nd of Torts 343 Dangerous Conditions Known to or Discoverable by Possessor: A
possessor of land is subject to liability for physical harm caused to his invitees by a condition on the
land if, but only if, he
 a) knows or by the exercise of reasonable care would discover the condition and should
realize that it involves an unreasonable risk of harm to such invitees, and
b) should expect that they will not discover or realize the danger or will fail to protect
themselves against it and
c) fails to exercise reasonable care to protect them against he danger.

Liability No Liability
Jacobsma v. Goldbergs Fashion City of Boca Raton v. Mattef - Mattef
Forum- Liability. The plaintiff and offered to paint the towns name on the
his wife were entering a store when side of the water tower. The council voted
the stores manager pointed at their to award Mattef the job as long as the
area and said stop thief the plaintiff towns attorney drafted the contract. The
then injured himself in an attempt attorney told Mattef that the contract had
to stop the thief that was heading not been drawn up because he needed
his way. more information about the job and told
Rule: The plaintiff was a Mattef to discuss them with the town
business invitee who upon Engineer. Mattef attempted to paint the
entering the store the defendant water tower anyway and while climbing the
owed a duty to exercise ordinary tower he saw the superintendent (who did
care for his safety. The D had not have authority over the tower) of the
actual knowledge that the danger water plant and told him of his plans. The
due to a prior attempt with the superintendent did not make any
shoplifter. comments. During the course of the job a
He was not a volunteer because his rung on the lawyer and he fell to his death.
size and proximity would lead him His wife sued for $25,000. ROL- an invitee
to believe that the managers is normally considered to be one who
(actual authority) instructions to enters a premises of another for
stop that thief were directed to him. purposes connected with the business
Also, the fact that the Ps purpose in of the owner or occupant of the
attempting to restrain the shoplifter premises. However, when someone
was to benefit the D, which is decides of their own volition in the
sufficient to sustain invitee status. fulfillment of an undertaking related to
Holding: The D breached his duty his own business is a licensee. (R. 342
of care to the P as a business the duty to a licensee is to warn of
invitee. known dangers, however there was no
knowledge) P was not a business
Rowland v. Christian Plaintiff was invitee bc the K wasnt finished and he
visiting defendant at her apartment wasnt a trespasser bc he received
and cut his hand on her water implied consent from the
faucet that she had asked her superintendent. So social guest? Had
maintenance man to fix. (Social there been a K, it could have specified
guest) responsibility for accident.
The D had asked her landlord to fix
the faucet a month earlier. (D had Carter v. Kinney Carter was a member of
actual knowledge, but did not warn) a bible study group that was held at the
Rule: The test to be applied is Kinneys house. He slipped on a patch of
whether in the management of ice there and broke his leg. He then sued
his property he to recover for his injuries.
has acted as a reasonable man in Holding: The court upheld the
view of the probability of injury licensee/invitee distinction because it
to others, and although the creates fairly predictable rules within
plaintiffs status as a trespasser, which entrants and possessors can
licensee, or invitee may in the determine appropriate conduct and
light of the giving rise to such juries can assess liability.
status have some bearing on the Carter was a licensee because they werent
question of liability, the status is here for a material benefit thus there was
not determinative. no duty to inspect. The ice in the driveway
Holding: Bc the D was aware of was considered as an unknown dangerous
broken faucet, he had a duty to condition and the D was unaware.
warn.

E. The Privity Limitation

If A and B enter into a K, and B performs it negligently. C is injured as a result. Clearly A
has rights against B; but does C? Courts sometimes have said no, imposing limits on the
duty that a D owes a third party injured when the D breaches a K. The limit is said to be
based on the fact that C has no contract (or is not in privity) with B.

The Privity Limitations

Liability No Liability
Glanzer v. Shepard. The D was hired by H.R. Moch Co. v. Rensselaer Water Co.
a seller of beans to weigh the beans being The D made a K with the city to supply
sold to the Ps. The Ps paid the man water for service at fire hydrants, and
according to the weight. When the Ps water was to be furnished to private takers
attempted to resell the beans they found within the city at their homes and factories.
that the actual weight was less than the During the contracting period, a fire
weight the D had certified. Ps sued D to spread to Ps warehouse. The D was
recover the amount they originally had notified but neglected to supply adequate
overpaid to the bean seller. quantity of water and pressure to suppress
Holding: The law imposes a duty toward the fire. As a result, the Ps warehouse was
buyer as well as seller in this situation. destroyed. The P alleged that the Ds
Reasoning: The Ps use of the certificates breach of the K between it and the city was
was not an indirect or collateral the cause of its damaged and brought an
consequence of the action of the weighers. action for breach of K and tort. Rule: To
It was a consequence which, the weighers give a right of action to a member of
knowledge, was the end and aim of the the public, the benefit provided by the
transaction. The sole purpose of the Ds was D must be one that is not merely
to correctly weigh the beans->more incidental or secondary. It must be
predictable primary and immediate in such a sense
and to such a degree as to bespeak the
Biakanja v. Irving The D prepared the assumption of a duty to make
will of the Maroevich, which gave all of the reparation directly to the individual
mans property to his sister. The D members of the public directly to the
neglected to have a witness present at individual if the benefit is lost.
Maroevichs signing of the will, which Holding: A K between a city and water
made it invalid. As a result, Maroevichs company to furnish water at the city
sister only received one-eighth of her hydrants has in view a benefit to the public
brothers estate instead of all of it. She that is incidental rather than immediate, an
sued the D. assumption of duty to the city and not to its
Rule: The determination of whether inhabitants.
the D will be held liable to a third Reasoning: Everyone making a promise
person not in privity requires a having the quality of a contract will be
balancing of the following factors: 1. under a duty to the promisee by virtue of
The extent to which the transaction the promise, but under another duty apart
was intended to affect the plaintiff 2. from contract to an indefinite number of
The foreseeability of harm to him potential beneficiaries when performance
3.The degree of certainty that the has begun. The assumption of one relation
plaintiff suffered injury 4.The will mean the involuntary assumption of a
closeness of the connection between series of new relations, inescapable hooked
the defendants conduct and the injury together and the law does not spread its
suffered 5.The moral blame attached to protection that far. The court used the no
the defendants conduct 6.The policy of privity of contract argument. There
preventing future harm. was a policy issue stating that if they
Holding: The D did not receive all of her placed a duty on the water company
brothers estate only because of the Ds the field of obligation would be
negligence, which was a direct cause of the expanded beyond reasonable limits.
Ps injury. Concerned with a pocket of Privity is being within the relationship
immunity bc the person who the D was of a contract. The court discussed the
actually in K with was dead, so he should fact that this would open up unlimited
be held liable to the person that he injured. or indefinite liability. If they found the
D liable they would be practically
making the water company an
insurance provider for any claim
resulting from inadequate water, i.e.
fire Here there would have been an
indefinite scope of liability.

Einhorn v. Seeley Woman was raped in

her fiance's building. She sued the
locksmith who negligently replaced the
lock on the door.
Analysis: There was a contract between
the landlord and the locksmith but the
Plaintiff had no privity to that contract. Her
fianc might have been a third party
beneficiary to the contract, but there was
no special relationship between the woman
and the locksmith. There is also no
predictability between the locksmith and
the woman. Also there could be intervening
causes she cannot know for sure that the
faulty locks were what let the man in. She
possibly could have sued the landlord for
his failure to protect. This duty is likely
tenuous, she was a licensee, just a duty to
warn IF he knows of the faulty lock.
Different from Biakanja because here
there is an intervening 3rd person, the
rapist, who causes the harm.
F. Pure Economic Losses
Difference between pure economic loss and the privity limitation
a. The privity limitation
i. Limits recovery for negligence only if it occurs while performing a
contract
ii. Cuts off liability even if personal injury or property damage
iii. Overlap casesNegligence in performing a K for a 3rd Party and
b. Pure Economic Loss Rule
i. Limits recovery for negligence even if it occurs while not performing a
contract
ii. Cuts off liability only if no personal injury or property damage
iii. Overlap casespure economic loss (i.e. no personal injury or property
damage)
iv.. Exceptions: Union Oil co The American cases reflect a similar
development. There are numerous cases indicating that economic losses
may be recovered for the negligence of pension consultants, accountants,
architects, attorneys, notaries public, test hole drillers, title abstractors,
termite inspectors, soil engineers, surveyors, real estate brokers, drawers of
checks, directors of corporations, trustees, bailees, and public weighers.

Liability No Liability
Newlin v. New England Telephone The Robins Dry Dock & Repair Co. v. Flint P
Ds telephone poll fell onto a power line. As chartered a boat from the owners. There
a result, the Ps factory lost power and he was an agreement that the boat would be
was not able to keep his mushrooms as the cleaned every 6 months. During the
appropriate temperature. The mushrooms cleaning, a crack was discovered in the
died, and the P sued for negligence. propeller. The owners hired Robins Co., the
Holding: The complaint state a good D, to install a replacement. One of the Ds
cause of action. Here there was actual employees negligently dropped the new
physical property damage. propeller, causing a 2 week delay before
the boat could be used by the Ps. The Ps
sued Robins Co.
Rule: A tort to the person or property
People Express Airlines, Inc. v. of one man does not make the tort-
Consolidated Rail Corp.- Minority - A fire feasor liable to another merely bc the
started at the Ds rail yard creating an injured person was under a K with that
explosion risk consequently the city had to other unknown to the doer of the
be evacuated and the plaintiffs business wrong. (Privity Limitation) The K of the
activities were forced to cease causing D with the owners imposed no immediate
workers to be unable to work and flights to obligation upon the D to third persons.
be delayed. Reasoning: The element of (Theres an incentive for the boat owner to
foreseeability emerges as a more hold the Robins Co. liable so theirs is no
appropriate analytical standard to pocket of immunity problem that we saw
determine the question of liability than a Biankanja)
per se prohibitory rule. The extent to which Pure Economic Loss Rule: Robins has
the defendant knew or should have known come to stand for the general notion that a
the particular consequences of his plaintiff who suffers no physical injury
negligence, including the economic loss of generally cannot recover for
a particularly foreseeable plaintiff, is pure economic losses caused by a
dispositive of the issues of duty and fault. defendants negligences. The privity rule
Holding: A defendant owes a duty of limits recovery for negligence to only
care to take reasonable measures to injuries that
avoid the risk of causing economic occur during the course of the contract
damages, aside from physical injury, to being performed. The robins rule thus
particular plaintiffs comprising an extends to causes arising from
identifiable class with respect to whom freestanding acts of negligence not
defendant knows or has reason to know committed in the course of performing a
are likely to suffer such damages from contract. (incentive for companies to get
its conduct. A defendant that fails to business interruption insurance)
adhere to this duty of care may be General Ruleif you have any losses you
found to be liable for such economic can go for economic damage, but if it is
damages proximately caused by its just pure economic losses you cant.
breach of duty. An identifiable class of
plaintiffs must be particularly 532 Madison Avenue Gourmet Foods,
foreseeable in terms of the type of Inc. v. Finlandia Center, Inc. No
persons or entities comprising the liability - The defendants building
class, the certainty or predictability of collapsed which resulted in the businesses
their presence the approximate surrounding the building to have to close
numbers of those in the class as well as for a period of time. Consequently they
the type of economic expectations sued to recover there loss. The NY court of
disrupted. Reasoning: The plaintiff was appeals dismissed the complaint based on
close and it was obvious that their a policy issue. A landowner who engages
operations would be impeded by such in activities that may cause injury to
accident. Thus it was foreseeable. persons on adjoining premises surely
Modaks comments: there must be an owes those persons a duty to take
identifiable class of plaintiffs and the reasonable precautions to avoid
defendant must know or have reason to injuring them. However, it is not held
know the injured will suffer damages. that a landowner owes a duty to
Theres an identifiable class here. This case protect an entire urban neighborhood
is to give an incentive to reasonable care. against purely economic losses.
(Indeterminable group)
The Appellate Division wants liability.
Foreseeability. Leaving no liability;
incentive for risky behavior

Phoenix Professional Hockey Club v.

Hirmer - No Liability - Plaintiff owned a
pro hockey team. The D injured Ps goalie
in a car accident and P sued to recover
damages because he had to hire a new
goalie. The case was dismissed. No
liability because no physical injury to
the team, because the team does not
own the goalie. (Pandoras box)

Bryd v. English D was a building a house

near the Ps printing firm. The Ds agents
dug underneath a sidewalk and damaged a
power line, which cause the Ps printing
firm to be deprived of electricity and
 unable to operate for several hours. There
was no contractual liability. There was not
actual property damage unlike the
mushrooms in Newlin. (problem of
indeterminate group of Ps)
Barber Lines A/S v. M/V Donau Maru -
Majority- D spilled oil into the harbor
prevent P from docking. As a result P had
to pay additional docking and unloading
costs. P sued trying to recover the
additional expenses. For policy reasons
because the
potential financial victims are vast and this
would increase the expense of tort
litigation when there are more affordable
means of recovery insurance.
Foreseeability is too indeterminate
It does not surprise us then that under
these circumstances courts have neither
enforced one clear rule nor considered the
matter case by case. Rather they have
spoken of a general principle against
liability for negligently caused financial
harm, while, creating many exception.
These exceptions seem designed to pick
out broad categories of cases where the
administrative and disproportionality
problems intuitively seem insignificant or
where some strong countervailing
consideration militates in favor of liability
thus an award of financial damages to one
also caused physical harm does not
threaten proliferation of law suits, for the
plaintiff could sue anyway (for physical
damages). Financial harm awards to family
members carry with them an obvious self
limiting principle (as perhaps does
awarding such damages to fishermen, as
favorites of admiralty). Awarding damages
for financial harm caused by negligent
misrepresentation is special in that,
without such liability, tort law would not
exert significant financial pressure to avoid
negligence.

Negligent Infliction of Emotional Distress

Rest. 3d of Torts: Section 46: Negligent Conduct directly inflicting emotional disturbance
on another. An actor whose negligent conduct causes serious emotional disturbance to
another is subject to liability to the other if the conduct:
a) places the other in immediate danger of bodily harm and the emotional disturbance
results from the danger or
b) occurs in the course of specified categories of activities, undertakings, or relationships in
which negligent conduct is especially likely to cause serious emotional disturbance.
Rest. 3d of Torts: Section 47 Negligent infliction of emotional disturbance resulting from
bodily harm to a third person
An actor who negligently causes serious bodily injury to a third person is subject to liability
for serious emotional disturbance thereby caused to a person who
A) perceives the event contemporaneously and
B) is a close family member of the person suffering the bodily injury.
"Some courts reject this approach, and some of those that accept its outlines nevertheless
differ on the details. Consider whether the following cases can be reconciled."

Liability No Liability
Robb v. Pennsylvania Railroad Co.-
Liability Issue: May the plaintiff recover for
the physical consequences of fright caused
by the negligence of the defendant? Facts:
There was a rut at one of the defendants
railroad crossings in which the rear wheels
of the plaintiffs car became stuck. The
plaintiff had to jump from the track to
avoid being struck by an oncoming train.
Her car was destroyed in the process.
While she wasnt physically injured she did
suffer harm and shock that she claimed
interfered with her ability to parent and
work. Trial judge gave D summary
judgment because the plaintiff sustained no
physical impactsome connection between
the two. Holding: Where negligence
proximately caused fright within the
immediate area of physical danger
from that negligence, which in turn
produced physical consequences such
as would be elements of damage if a
bodily injury had been suffered, the
injured party is entitled to recover
under an application of the prevailing
principles of law as to negligence and
proximate causation. Judgment
Reversed. Reasoning: Every man for an
injury done to him in his person shall have Lawson v. Management Activities- No
remedy by the due course of law. Modaks liability The trial court dismissed the
comments: There must be physical complaint to recover for emotion distress
consequences and those are too remote that was made by employees at a
and generally unprovable. Here they are dealership who saw an airplane go into a
requiring at least some kind of (1)physical dive near them. Here a Pandoras box is
injury (bodily injury or sickness) flowing open because the zone of danger, physical
from negligence. Mere fright yields no consequences and injury are all
recovery. (2) Physical consequences unpredictable. Modaks comments- The
cannot be too remote or unprovable (with people werent in the immediate zone
advances in medical knowledge, things are of physical risk.
more provable). (3) Public policy and Holding the company liable would not
expediency provide an incentive to airplane companies
to be more careful bc pilots already have
Quil v. Trans World Airlines-The plaintiff incentive to fly safely to avoid crashes;
was flying on Ds aircraft when it went into Pilots arent really focused on not injuring
a tail spin and the pilot only pulled it out of people on the ground bc they are more
the tailspin 5 seconds before it was about focused on not crashing at all and the
to crash. The plaintiffs job required him to safety of the people on the plane
fly and since then he has experienced much
discomfort high blood pressure and Johnson v. Jamaica hospital- no liability-
anxiety. The jury awarded him $50,000. the plaintiffs daughter was stolen from the
Plaintiff was in the immediate zone of hospital right after her birth and wasnt
danger bc he was actually a P on the plane. recovered until four months later. The
And he suffered actual physical plaintiffs are suing for emotional distress
consequences which both are they incurred during that time as a result
distinguishable from Lawson. of the hospitals negligence.
Policy Factors: (1) The degree of Court: The court found there was no direct
certainity injury to passengers and (2) A duty to the plaintiff. The direct duty
high degree of certainty that passengers allegedly cause by Ds negligence was
would be injured (3)here it is more sustained by the infant and the parents
foreseeable that passengers will be injured grief are not actionable (indirect injury).
so scope of liability is not unpredictable. There was a public policy argument that to
permit recovery by the infants parents for
emotional distress would be to invite open
Perry-Rogers v. Obasaju- liability- The ended liability where the very young or
plaintiffs were undergoing invitro very elderly or incapacitated persons
fertilization when the embryo theyd experience negligent care or treatment.
created was implanted into another Similarly, the general rule in contract
womans body. The woman refused to give cases is that absent a duty upon which
them the child after birth; did not receive liability can be based there is no right
the child until four months later. They of recovery for mental distress
sued the clinic for emotional distress due resulting from the breach of a
to lack of prenatal bonding experience of contractual related duty. The
pregnancy and the four months after the foreseeability that such psychic
childs birth that they were deprived of the injuries would result from the injury to
child for four months. Reasoning: it is the child does not serve to establish a
foreseeable that the information of the duty running from defendant to
mistake would cause them great distress as plaintiffs and in the absence of such a
their desire for the child was evidence by duty as a matter if law there can be no
the amount of effort they took to conceive. liability.
Parents are directly injured here. Modak Also, the court dispelled the argument that
distinguishes this case from Johnson by the defendant stood in loco parentis bc it
saying that it seems to be treating the requires more than mere temporary care
embryo as property. Here it was and custody, but an intent to support and
foreseeable that the parents would be care for the child on a permanent basis
injured and there is a more predictable must be shown. Modak- this case is
scope as well. ROL- Damages for troublesome since the child is already born
emotional harm can be recovered even they have their own rights and they would
in the absence of physical injury when have to bring the case. This has an
there is a duty owed by defendant to unpredictable scope of liability because a
plaintiff and a breach of that duty third party can recover when the elderly or
results directly in emotional harm. a baby suffers negligence. Foreseeability
There is no requirement that the and unpredictable scope of liability.
plaintiff must be in fear of his or her Dissent argument that the court is being
own physical safety. However a plaintiff too formalistic. The abduction of the baby
must produce evidence sufficient to is serious and by relying on the fact that
guarantee the genuineness of the there was no direct duty, the court
claim such as contemporaneous or excludes a serious case of injury.
consequential physical harm, which is
thought to provide an index of Gain v. Carrol- no liability. The plaintiff
reliability otherwise absent in a claim saw his sons squad car on the evening
for psychological trauma with only news thus alerting him that his son had
psychological consequences. been killed; he sued the other driver and
other parties for negligent infliction of
Marzolf v. Stone- Ps son was driving a emotional distress. Mental suffering by a
motorcycle when he was hit by a bus. His relative who is not present at the scene
father happened on the scene of the event is unforeseeable as a
before emergency responders and saw his matter of law. Public Policy To allow
son before he died he sued the bus recovery only to those who were present at
company for negligent infliction of the time of the injury causing event creates
emotional distress. Here it is hard to an unarbitrary distinction. Spatial
distinguish between the bright line rule. Proxmitythe court refused to extend (i.e.,
ROL- the emotional trauma caused by limited) liability to parent viewing son on
seeing a loved one injured at an TV at the time of the accident. (i.e. must
accident scene stems not merely from be present at the scene) Here the scope of
witnessing the transition from health liability would be unpredictable.
to injury but also from witnessing the
aftermath of an accident. This is Barnes v. Geiger- NL the plaintiffs wife
extending it. Temporal witnessed a pedestrian get struck by a care
Proximityextended rule to include in the exact spot where her son was
arrival at the accident 10 min. after playing. She ran over only to realize it
while son still alive wasnt him. However she died the next day
of a cerebral vascular hemorrhage. Her
Barnhill v. Davis- liability The plaintiffs husband sued saying the elevation of her
mother was trailing him in a car when he blood pressure caused her death ROL- a
saw her car get hit by another driver. fleeting instance of fear or excitement
Although she suffered minor injuries and does not present a set of
was declared weeks later to she was found circumstances against which a
to have no physical injuries. The plaintiff tortfeasor can fairly be asked to
sued the driver for negligent infliction of defend. Public Policy: want to limit
emotional distress for the time he spent liability bc we want the optimal level of
worrying about his mother. He claimed care; Pandora Box due to
that that the distress caused him dizziness, unpredictable scope of liability.
difficulty sleeping, and pain in his back and Different from Barnhill bc the injured
leg. ROL- it is reasonably foreseeable party was not closely related to the
that a son who witnessed serious injury injured party.
to his mother may suffer mental
distress. Johnson v. Douglas: Plaintiffs were
Mother was not seriously injured, but son walking dog when D came speeding down
was closely related to injured party. the road and crushed the dog. The law is
clear that pet owners cannot recover
for emotional distress based upon an
alleged negligent or malicious
 destruction of a dog which is deemed
to be person property. Public Policy The
extension of such thinking would permit
recovery for mental stress caused by the
malicious or negligent destruction of other
personal property.
Direct Injury Theory
Robb v. Penn R.R. Company ->
Factually distinguishable. Unlike
Robb, there is no evidence of
physical injuries here
Perry-Rogers -> Legally
distinguishable bc there is no duty
here

Indirect Injury Theory

Jamaica Hospital
-harm to property not persons
-emotional distress without physical
consequence

Cause in Fact (requires demonstrating that the injuries would not have occurred if the D
had used due care)
Traditional Approach vs. Lost Chance Approach
Traditional Approach
i. Untaken precaution must be more likely than not the cause of the defendants injury.
ii. The damages are all or nothing
Lost Chance approach
i. The untaken precaution must have been the cause of the lost chance.
ii. The damages are compensation for percentage reduction in chance.
But - For Causation
1) cause-in-fact show this chain of events of the untaken precaution and the injury
2) the proximate cause is sometimes called the legal cause because it has to do with the
scope of liability

Liability No Liability
Gardner v. National Bulk Carriers - New York Central R.R. v. Grimstad
Liability The plaintiffs decedent was a (traditional approach) No liability. The
seaman aboard the Ds ship. The man was plaintiffs husband fell off the barge and she
found to be missing from the ship; ran to get a rope to throw and rescue him
however, the ship continued on its course however by the time she had found the
and did not attempt a rescue. The trial rope he was gone. She sued saying that the
court found that the man had fallen barge should have provided life saving
overboard and the captain had no way of equipment that was readily available. The
knowing at one point he had fallen or trial court found for the plaintiff the
where thus a search would have been Appellate court reversed.
fruitless. However the decision was Traditional Standard is more likely
reversed and held the captain liable than not.
because he would have only lost a half day They said the proximate cause of his death
of working in exchange for possible saving was falling into the water and there is no
a mans life. When turning back would proof that had some lifesaving device been
pose no risk other than a loss of time, available that it would have saved his life.
and the captain refuses to do so then No buoy < 51% and the victim couldnt
the inaction of the master establishes a swim. The husbands drowning wasnt
neglect of the duty of rescue a neglect caused more than 50 % of them not having
from which a contributing cause of the a buoy. It was not more likely than not that
seamans death is fairly and the lack of buoy caused the drowning.
conclusively drawn by law. Here there were many possible causes of
Untaken Precaution did just turn death.
back search for sailor
Other causes shark, cut in propeller, Dillon v. Twin State Gas & Electric Co. A
suicide fourteen year old boy was sitting on a
Here they are applying the LOST bridge which the D maintained electric
CHANCE approach and that they were wires over. He leaned over the side and as
more likely than not to save the he lost his balance grabbed one of the wires
individual. Here they are providing and died from electrocution.
incentives for ships to turn around. Reasoning: The extent of the liability
depends on whether the jury found that the
Herskovits v. Group Health boy would have died or been maimed from
Cooperative of Puget Sound Liability- the fall if they wire had not been present.
The P came to the hospital complaining of The only liability was exposing the boy to
chronic coughing and chest pains. The the exposed wires. They had no duty to
doctor prescribed him cough medicine but keep him from falling. The loss chance
his health failed to improve. He later approach doesnt apply bc we already know
consulted another doctor who diagnosed that the cause in fact of the boys death
him with lung cancer. He later died and his was him falling bc he would have fell and
wife brought an action against the D for died anyway regardless of the presence of
being negligent in failing to make an early the wire.
diagnosis of the cancer. Dr. Ostrow testified The court said his probably future but for
that the Ds negligence probably reduced the current thus bears on liability as well as
the mans chance of surviving for five years damages. Know the cause of harmfalling
from 39 percent to 25 percent. The D off; they just happened to be there; no real
moved for summary judgment on the negligence or duty to prevent him from
ground that the P probably would have died falling anyways
from lung cancer even if the D had made an
early diagnosis. Daugert v. Pappas the P brought a legal
Issue: Is a 36% (14/39) from 39 to 25 malpractice action against his lawyer for
reduction in the decedents chance for failing to file a timely petition for review of
survival sufficient evidence of causation to a court of appeals decision. At trial, both
allow the jury to consider the possibility parties presented expert testimony on the
that the physicians failure to timely likelihood that the state supreme court
diagnose the illness was the proximate would have reviewed and reversed the
cause of his death? decision in the case if the petition had been
Holding: Yes. Public Policy: (Majority timely filed.
opinion) to decide otherwise would be a Reasoning: Despite the Herskovits
blanket of release from liability for doctors opinion and the questioning by
and hospitals any time there was less than commentators of the use of the but for test
a 50 % chance of survival. (There would be in legal malpractice claims we believe it
no incentive for medical community to use inappropriate at this time to change the
reasonable standard of care when ppl are test. The primary thrust of Herskovits was
seriously ill) that a doctors misdiagnosis of cancer
Concurrence: Loss Chance Approach either deprives a decedent of a chance of
allows recovery for loss of the chance surviving a potentially fatal condition or
of cure even though the chance was reduces that chance. A reduction in ones
not better than even. (This is the more opportunity to recover (loss of chance) is a
rational approach) Traditional approach all very real injury which requires
or nothing/more likely than not -> is compensation. On the other hand, where
arbitrary. This subverts deterrence. It the issue is whether the Supreme Court
undermines the public policy behind would have accepted review and rendered
negligence loss. It puts the Courts under a decision more favorable to the client,
pressure to manipulate and distort other there is no lost chance. The client in a legal
rules affecting causation and damages in an malpractice case can eventually have the
attempt to mitigate perceived injustices. case reviewed. For example, in the instant
Gives certain Ds the benefit of an case the clients underlying claim was not
uncertainty which, were it not for their reviewed by the court initially because of
tortious conduct would not exist. (damages the attorneys negligence. However, in the
are all or nothing in this approach which subsequent malpractice action the trial
may be inequitable in certain situations) judge should have decided whether the
Supreme Court would have accepted
Wendland v. Sparks: liability - A woman review and held in favor of the client. If the
with chronic cancer who was in remission trial judge found review would have been
went into the hospital to recover from denied, the client could have sought review
weakness. She went into cardiac arrest in the court of appeals and ultimately in
and was in need of resuscitation and the the supreme court. Hence, the client would
doctor failed to do so as an act of mercy he eventually regain the opportunity to have
said because she would have had such a the claim reviewed by the Supreme Court.
poor quality of life. The husband sued the On the other hand in the medical context,
doctor. The court applied the lost chance when a patient dies all chances of survival
theory. A victim who suffers from a are lost. Furthermore, unlike the medical
preexisting adverse condition (in this malpractice claim wherein a doctors
case the patients cancer and other misdiagnosis of cancer causes a separate
diseases) and is then subjected to and distinguishable harm i.e. diminished
another source of injury (here the chance of survival, in a legal malpractice
failure to resuscitate) may have a claim case there is no separate harm. Rather the
for the second event. The rationale is that attorney will be liable for all the clients
if it were not for the second event the damages if review would have been
victim might have survived the first. granted and a more favorable decision
Public Policy: Dont wont give up ppls rendered and none if review would have
choices to live or die; ruling otherwise been denied. Holding: Thus clearly the
would make the doctor the decider of who loss of chance analysis articulated in
lives and dies. Herskovits is inapplicable in a legal
Theres a certain fairness element under malpractice case
the loss chance with respect to the plaintiff
bc they are compensated for their loss
chances, and for the defendant bc the pre-
existing illness is discounted against the
amount of damages.

Alternative Liability (When P cannot show cause in fact)

Rest. 433A Illustration 3: - Apportionment of Harm To Causes: Five dogs owned by A
and B enter cs farm and kill ten of cs sheep. There is evidence that three of the dogs are
owned by A and two by B and that all of the dogs are of the same general size and ferocity.
On the basis of this evidence, A may be held liable for the death of six of the sheep and B is
liable for the death of four. (Both Ds were negligent bc all of the dogs caused harm)
Rest. 433B Burden of Proof
Illustration 10: Over a period of three years A successively stores his furniture in
warehouses operated by B,C, and D. At the end of that time A finds that his piano has been
damages by a large dent in one corner. The nature of the dent indicates that it was caused
by careless handling on a single occasion. A has the burden of proving whether the dent was
caused by the negligence of B,C, or D. (Only one negligent party was involved)
Illustration 11: While As automobile is stopped at an intersection, it is struck in the rear
by Bs negligently driven car. Immediately afterward Cs negligently driven car strikes the
rear of Bs car causing a second impact upon As car. In one collision or the other, A sustains
an injury to his neck and shoulder. In As action against B and C each defendant has the
burden of proving that his conduct did not cause the injury. (Both negligent and both caused
harm)

Liability No Liability
Summers v. Tice The P and the two Ds Litzman v. Humboldt County The 9 year
were quail hunting. The three stood in a old plaintiff lit what he thought was a flare,
triangle. A bird flew between the P and the but was actually an aerial bomb, at the fair
Ds, and both Ds shot at it. The P was shot and the bomb exploded on his hand. These
in the face and sued both Ds for negligence. bombs had been brought onto the fair
Trial court found that the Ds had been grounds by the two Ds Golden State
negligent in firing in the Ps direction. The Fireworks and Monte Brooks. The trial court
Ds appealed on the ground that the P failed instructed the jury that if they were unable
to prove which of them fired the shot that from the evidence to determine which of
hit him. the two Ds was responsible for leaving the
1) Ps Burden: other elements aerial bomb on the ground, they should
2) Ds Burden: Evidentiary Argument-> exonerate both. The jury brought a verdict
The Ds have more evidence as to what for the Ds. The P appealed claiming that
happened that the P doesnt and it would the trial court should have instructed the
be unfair to place the burden of proof to the jury that it could find in his favor on the
P; similar to Ybarra v. Spangard. negligence issue under the doctrine of res
Reasoning: The Ds brought about a ipsa loquitor in Ybarra, and that it could find
situation where the negligence of one of in its favor of causation under the doctrine
them injured the P, hence it should rest with of alternative liability under Summers v.
them each to absolve himself if he can. The Tice. See slide
injured party has been placed by Ds in the Argument for no liability: This case is
unfair position of pointing to which D distinguishable from Summers bc only one
caused the harm. Ordinarily Ds are in a far D is blatantly negligent here.
better position to offer evidence to Argument for liability: Extending Summers
determine which one caused the injury. bc theres one cause and neither of the Ds
Holding: For reasons of policy, the case is were possibly negligent.
based upon the legal proposition that,
under the circumstances here presented, Sanderson v. International flavors and
each D is liable for the whole damage fragrances.- No liability. The plaintiff
whether they are deemed to be acting in claimed that she suffered brain damages
concert or independently. and loss of smell due to exposure to one of
seven different fragrances. Was unable to
Kingston v. Chicago liability- The Ps identify which of the seven fragrances
lumber yard was destroyed by two fires; caused her injury. Tried to use the market
one from the northeast and the other from share theory
the northwest; the fires united. The fire Holding: plaintiff cannot shift the
from the northeast was caused by the D. It causation burden to defendants
is unclear what caused the other fire. because P was not injured by a
Holding: Granting that the union of the fire fungible product (not all perfumes
caused by the D with another of natural have the same ingredients; there are
origin, or with another of much greater some unique characteristics) made by
proportions, is available as a defense the many different manufacturers and
burden is on the D to show that, by reason because P has in any event not joined
of such union with a fire of such character, a substantial share of the market for
the fire set by him was not the proximate the products she alleges injured her.
cause of the damage. (Theres no liability if Thus if attempting to bring a claim you
2nd fire was natural or substantially larger) must have been injured by a product
Similar to R. 433B Illustration 11 bc both produced by many manufacturers and
fires caused harm. (Slighly extends you must join a substantial share of
Summers v. Tice bc the second fire is of an the market (In Slidell, there was 90%
unknown origin and D doesnt have better of the market share and this was
access to information of what caused it yet substantial enough) LIMITS Slindell
the burden still shifts to the D)
Smith v. Cutter Biological - Liability - P
Sindell v. Abott Laboratories Issue: contracted HIV from contaminated blood
Liability Can a P that was injured as the supplied to him at an army hospital. Didn't
result of a drug administered to her mother know which of the 4 companies who
during pregnancy who knows the type of supplied it to the hospital was responsible
drug involved but cannot identify the so he sued all four, claiming market share
manufacturer hold liable for her injuries a liability. Court found that blood was
maker of a drug produced from an identical fungible (hope that you get the same
formula Facts: The plaintiffs mother took a thing). Sued on idea of market share
drug designed to prevent miscarriages. liability. There were 4 manufacturers. In
However, it caused her daughter to have Sindell, we knew all the DES drugs had the
cancerous growths and undergo expensive same potential of causing cancer; So here,
painful tests. The daughter cant identify some of the providers were more culpable
which manufacture made the drug but says than others. Some of the blood had HIV
summers says the burden shifts to them to and some did not. This is an extension of
prove they didnt do it. They urge that SLINDELL because one of the Ds
summers did that only when the defendants responsible may be meeting its duty of care
were in a better position to discover who bc of the possibility it did not and still be
did it they urge that in this case it would be held liable.
almost impossible to determine who did it.
Holding: The court said that using a Vioxx Cases p. 344 (see slides) - The
market share theory they would be able to novel feature of the settlement was that
determine who most likely did it and they while the offer was made to each Vioxx
should have to pay. When a defendant is plaintiff individually, the offer was only valid
in a position to ascertain which if accepted by all the clients represented by
defendant harmed the plaintiff (in this any particular attorney or law firm. In order
case by looking at the market share to provide closure, however, . . the offer
then they can be held liable and cross required any participating lawyer to certify
claim against one another to sort out that all his or her clients had agreed to the
the proper defendant. The dissent says terms. In broad
that this limits potential defendants to outlines, the offer provided closure with
those only in the courts jurisdiction and to each firm independently (subject to an
deep pockets which is wrong. overall 85 percent acceptance rate to be
Modaks comments: (1) Here all the Ds effective) or it would not become effective.
were negligent; the ds had superior Individual claimants remained free to reject
knowledge was a weaker argument. the proposed deal but, assuming court
(2) Likelihood In Summer there was a approval and barring exigent
50/50 whereas here it was 1/200. circumstances, would have to find other
When you impose a market share counsel too.
there was 5/200(that 5 supplied 90%
of the market) So this is a stronger
argument when considered. (3)
fairness argument on shifting the
burden to the D: market share liability
is fair bc all the Ds were negligent in
continuing production of the medicine
after the FDA ordered them to stop so
it seems more fair to make them prove
that they didnt do it bc they all were
harming somebody. (4) Incentive to
give more care when issuing drugs
when you are producing drugs that
have a likelihood of causing harm.
This extends SUMMERS but has a
slightly different justification for
shifting the burden and we also arent
certain that one of the Ds is actually
responsible but it likely that one is bc
there is a 90% chance.
Dissent: criticizes the market share liability
by arguing that it treats Ps who cannot
identify which D injured them better than Ps
in regularly tort liability cases; and theres
an issue of deep pocket theory which holds
Ds that are wealthy to liability on the theory
that they are better able to handle the
liability.

Proximate Causation
Remoteness and Foreseeability
Rest. 3d. of Torts Section 29: (majority view) Limitations on liability for tortuous
conduct. An actors liability is limited to those physical harms that result from the risks that
made the actors conduct tortuous. (also think about this is 519 in strict liability)
Comment J states that connection with reasonable foreseeability as a limit on liability. Many
jurisdictions employ a foreseeability test for proximate case, and in negligence actions such
rule is essentially consistent with the standard set forth in this Section. Properly understood
both the risk standard and a foreseeability test exclude liability for harms that were
sufficiently unforeseeable at the time of the actors tortuous conduct that they were not
among the risks (potential harms) that made the actor negligent, Negligence limits the
requirement of reasonable care tot hose risks that are foreseeable. Thus, when scope of
liability arises in a negligence case, the risks that make an actor negligent are limited to
foreseeable ones, and the fact finder must determine whether the type of harm that
occurred is among those reasonably foreseeable potential harms that made the actors
conduct negligent.
Rest. 2d of torts 435 (minority view) Foreseeability of harm or manner of its
occurrence: (Modified direct consequences principle)
1) if the actors conduct is a substantial factor in bringing about harm to another, the fact
that the actor neither foresaw nor should have foreseen the extent of the harm or the
manner in which it occurred does not prevent him from being liable.
2) the actors conduct may be held not to be a legal cause of harm to another where after
the event and looking back from the harm to the actors negligent conduct, it appears to the
court highly extraordinary that it should have brought about the harm
457. ADDITIONAL HARM RESULTING FROM EFFORTS TO MITIGATE HARM CAUSED
BY NEGLIGENCE
If the negligent actor is liable for anothers bodily injury, he is also subject to liability for any
additional bodily harm resulting from normal efforts of third persons in rendering aid which
the others injury reasonably requires, irrespective of whether such acts are done in a
proper or a negligent manner.
460. SUBSEQUENT ACCIDENTS DUE TO IMPAIRED PHYSICAL CONDITION CAUSED BY
NEGLIGENCE
If the negligent actor is liable for an injury which impairs the physical condition of anothers
body, the actor is also liable for harm sustained in a subsequent accident which would not
have occurred had the others condition not been impaired, and which is a normal
consequence of such impairment.
Liability No Liability
In Re Polemis Bankes (majority) There Wagon Mound #1 No liability: Ds were
were flammable vapors in the ships hold. owners of the wagon mound and there was
The Ds agent spread planks over the oil being pumped into the ship that spilled
opening of the hatch on the ship, using into the sea. The Ds made no effort to
them as a platform to lower the cargo. One disperse the oil bc they did not believe it
of the ropes used to operate the winch would catch on fire. Two days later, the oil
came into contact with one of the planks caught fire after and damaged the Ps
and caused the plank to fall into the hold; wharfs and two boats docked alongside it.
an explosion and fire immediately followed Reasoning: For if some limitation must be
and the ship was destroyed. Ds argue that imposed upon the consequences for which
the damage harm caused by the ship falling the negligent actor is to be held
was not foreseeable. responsible- and all are agreed that some
Reasoning: The act of the board falling limitation there must be -why should that
caused a spark and that ignited gas and test (reasonable forseeability) be rejected
that was a negligent act and as such he is which since he is judged by what the
liable for any and all damages that ensue reasonable man ought to foresee,
as the result of his negligent act regardless corresponds with the common conscience
of whether or not the damages were of mankind and a test (the direct
foreseeable. In the present case the consequence) be substituted which leads to
arbitrators have found as a fact that nowhere but the never ending and insoluble
the falling of the plank was due to the problems of causation. But if it would be
negligence of the defendants servants wrong that a man should be held liable for
the fire appears to me to have been damage unpredictable by a reasonable man
directly caused by the falling of the because it was direct or natural equally it
plank. (direct consequence/minority would be wrong that he should escape
rule)Under these circumstances I consider liability, however indirect the damage if he
that it is immaterial that the causing of the foresaw of could reasonable foresees the
spark by the falling of the plank could not intervening events which led to its being
have been reasonably anticipated. done
Holding: Given the breach of duty which Rule: thus foreseeability becomes the
constitutes the negligence, and given the effective test. A man must be
damage as a direct result of that considered to be responsible for the
negligence, the anticipations of the person probable consequences of his act. To
whose negligent act has produced the demand more of him is too harsh a
damage appear to me to be irrelevant. I rule, to demand less is to ignore that
consider that the damages claimed are not civilized order requires the observance
too remote. of a minimum standard of behavior.
Scrutton (concurring) ROL- To determine Holding: The court said that the Ps action
whether an act is negligent it is should be dismissed.
relevant to determine whether any
reasonable person would foresee that Doughty v. Turner (No Liability) A worker
the act would cause damage if he accidentally knocked a metal cover into
would not the act is not negligent. But molten cyanide which caused an
if the act would or might probably unexpected explosion, which caused
cause damage, the fact that the injuries to the P.
damage it in fact causes is not the The type of harm you would expect from
exact kind of damage one would this is the splashing of cyanide. It was
expect is immaterial so long as the argued that it was the same type of harm
damage is in fact caused sufficiently but the extent was greater because it was
directly by the negligent act and not an actual explosion by the D. However, the
by the operation of independent court did not accept this and they said the
causes having no connection with the type of harm was completely different.
negligent act except that the would Rule: He must take reasonable care to
not avoid its results. (allows for avoid acts or omissions which he can
intervening cause argument) reasonably foresee would be likely to
Modak comments: This is not the way injure his neighbor; but he need do no
most courts deal with this now and is more than this. If the act which he
the MINORITY RULE. Because you does is not one which he could, if he
could have anticipated some harm, thought about it, reasonably foresee
even if you didnt anticipate the harm, would injure his neighbor, it matters
you can still be responsible. not whether he does it intentionally or
Courts moved away from the direct inadvertently. In this case the immersion
consequences rule. of the cover was not an act which they were
under any duty to take any care to avoid.
Wagon Mound 2: Liability. The owner of Here the kind of harm you could foresee
one of the boats that was destroyed sued was not an explosion. Unlike Petition of
the D Kinsman Transit, thus is not foreseeable.
Rule: If it is clear that the reasonable You can foresee the lid splashing but the
man would have realized or foreseen explosion was not foreseeable.
and prevented the
risk then it must follow that the Diponzio v. Riordan: No liability. P was
appellants are liable in damages. (the filling up his car with gas when an
Ps lawyer framed the issue here to focus unoccupied car rolled into him and broke
more on foreseeability bc the P did not have his leg.
the problem of contributory negligence as The driver of the car that rolled had not
the Ps in the first case) heeded the store policy to turn off the
engine while fueling and it rolled while he
Petition of Kinsman Transit (Liability) was away. Because this type of accident
Because a boat wasnt properly secured it was not among the hazards that are
broke loose when ice piled up against and naturally associated with leaving a car
collided with another ship which broke loose engine running during the operation of
and collided with the drawbridge, causing a gas pump, the alleged misconduct of
the bridge to collapse and flooded the river. defendants employees does not give
The untaken precaution was the deadman rise to liability in tort. Here the
post had been improperly constructed and untaken precaution was not enforcing
was negligently maintained. the policy off the car while fueling.
Rule/holding: Where the damages Here this is not the same general type
resulted from the same physical forces of harm. Not turning the car off while
whose existence required the exercise fueling is for prevent explosions, not to
of greater care than was displayed and keep cars from rolling.
were of the same general sort that
was expectable unforeseeability of the Central of Georgia RY. V. Price No
exact developments and of the extent liability Woman whose driver missed her
of the loss will not limit liability. (For stop spent the night at a hotel and caught
the proximate cause, if there is a on fire due to a defective lamp. The
foreseeable kind of harm then you dont negligence of the company in passing her
have to foresee the extent of harm) station was therefore not the natural and
proximate cause of her injury. There was
Colonial Inn v. Gay (liability) The the interposition of a separate
Defendant backed into the Ps hotel on independent agent, the negligence of
accident and thought he had done no the proprietor of the hotel over whom
damage when in fact he has severed a gas as we have shown the railway company
line running through the heater. The gas neither had nor exercised any control.
ignited and the explosion caused extensive The injuries to the plaintiff were not
damage, It was the type of damage that the natural and proximate
could have been foreseen as the result of consequences of carrying her beyond
backing into a building (caused a gas line her station, but were unusual and
to leak and ignite and explode). If the could not have been foreseen or
defendants conduct is a substantial provided against by the highest
factor in bringing about the injury, it is practicable care. Here the hotel was
not necessary that the extent of the an intervening cause and a separate
harm or the exact manner in which it independent agency. The risk here of
occurred could reasonably have been the fire at the hotel is not the risk
foreseen. A negligence defendant must created by their negligence.
take the plaintiff as he finds him, even
if the plaintiffs eggshell skull results
in his suffering an injury that
ordinarily would not be reasonably
foreseeable. Here the untaken
precaution was hitting the ac heater.
Here there was the same force and
same general type of harm. The extent
of harm was not necessarily eggshell P.
(more of direct consequences rule
here)

**United Novelty v. Daniels Liability

problem. The work was being performed in
a room eight by ten feet in area in which
there was a gas heater then lighted with an
open flame. The cleaning was with
gasoline. The unique circumstances that
the immediate activating cause of a
resultant explosion was the escape of a rat
from the machine and its disappointing
attempt to seek sanctuary beneath the
heater whereat it overexposed itself and
returned in haste and flames to its original
hideout. Even though such a facts it is not
a controlling fact and serves chiefly to
ratify the conclusion that the room was
permeated with gasoline vapors.
Negligence would be predicated of the
juxtaposition of the gasoline and the open
flame. Under similar circumstances the
particular detonating agency whether as
here an animate version of the classic
lighted squib, a bolt of lightning was
incidental except as illustrating the range
of foreseeability. Here the untaken
precaution was cleaning the machine
without flammable cleaners precaution.
This was the same force and here the
general type of harm was that the gasoline
was flammable. Even though you dont
foresee the same general type of events,
you can foresee the force of using gasoline
by an open flame.

**Steinhauser v. Hertz Liability. problem

Woman in car accident who had a
prescychotic personality that resulted in
her developing schizophrenia when the car
accident triggered it. If the negligence
precipitated the onset of a disease to
which she had a preexisting
susceptibility they could be liable.
Here there is some responsibility here
and they wanted the negligent driver to
be held responsible for those damages.
This is more a Direct consequence
rule.

Pridham v. Cash and Carry Liability. Guy

got hit by some tile because the worker
was negligent on his way to the hospital
the ambulance crashed and killed him. The
law provides that if the defendant is liable
to the plaintiff decedent in this case, he is
also liable for any additional bodily harm
resulting from injury reasonably requires
irrespective of whether such acts are done
in a proper or in a negligent manner. If
you find the defendant case and carry
building center is liable to the P the
 damages awarded to the P would include
all injuries suffered by the decedent
Pridham at Cash and carry; and if you also
find the injuries suffered in the ambulance
crash were as a result of the normal effort
of third persons in rendering aid which the
decedent Pridham required then the
defendant would be liable to the plaintiff
for those also. 457
Here you are increasing the probability of
the type harm here, which was rendering
aid.

Intervening Causes

448. Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actors
Negligence.

1) The act of a third person in committing an intentional tort or crime is a superseding cause
of harm to another resulting therefore, although the actors negligent conduct created a
situation which afforded an opportunity to the third person to commit such a tort or crime,
unless the actor at the time of his negligent conduct realized or should have realized the
likelihood that such a situation might be created, and that a third person might avail himself of
the opportunity to commit each such a tort or crime.
449. Tortuous or Criminal Acts The Probability of Which Makes Actors Conduct
Negligent.

1) If the likelihood that a third person may act in a particular manner is the hazard or one of
the hazards which makes the actor negligent, such an act whether innocent, negligent
intentionally tortuous, or criminal does not prevent the actor from being liable for harm caused
thereby.

Liability No Liability
Brauer v. N.Y. Central & H.R.R. Co. Ds Watson v. Kentucky & Indiana Bridge &
trains collided with the Ps wagon at a grade R.R. Ds railroad cars negligently was
crossing. The Ps horse was killed, wagon derailed, causing its cargo of gasoline to
was destroyed, and the wagons contents- spill out into the streets of the city. The gas
keg of cider, some empty barrels, and a was ignited by a match lit by a man named
blanket- were stolen by unknown parties at Duerr. An explosion resulted which injured
the scene of the accident. The driver of the the P. P sued the railway company. Duerr
wagon was so stunned by the collision that claimed that he had used the match to light
he went into a fit and was unable to protect a cigar and had started the explosion
the property. The railroad detectives on the inadvertently. But witnesses claim that
train did nothing to protect the Ps property. Duerr intentionally started the fire.
The P sued the D for the recovery of Holding: The railroads liability depends on
damages for the stolen property. how Duerr came to start the fire and that
Rule: The act of a third person this was a question for the jury.
intervening and contributing a Reasoning: While the railway companys
condition necessary to the injurious negligence may have been the efficient
effect of the original negligence, will case of the presence of the gas in the
not excuse the wrongdoer, if such act street, and it should have understood
ought to have been foreseen. enough of the consequences thereof to
Reasoning: The negligence which caused have foreseen that an explosion was likely
the collision resulted immediately in such a to result from the inadvertent or negligent
condition of the driver of the wagon that he lighting of the match by some person who
was no longer able to protect his was ignorant of the presence of the gas or
employers property; the natural and of the effect of lighting or throwing a match
probable result of his enforced in it, it could not have foreseen or deemed
abandonment of it in the street of a large it probable that one would maliciously or
city was its disappearance; and the wantonly do such an act for the evil
wrongdoer cannot escape making purpose of producing the explosion.
reparation for the loss caused by depriving 449 this is more concerned with the
the P of the protection which the presence likelihood and probability, but the
of the driver in his right senses would have court focuses on malicious intent.
afforded A railroad company which found Here we are not concerned about
it necessary to have its train guarded by arson, we are more concerned with the
two detectives against thieves is surely general risk of explosion. The arson
chargeable with knowledge that portable was not as foreseeable as the actual
property left without a guard was likely to risk of explosion from spilling oil itself.
be stolen. (prescence of guards contributes At some point we cut off liability when
to foreseeability argument for liability). promoting the amount of care to take.
Holding: The act of the thieves did not Here arson is too much and too far to
intervene between Ds negligence and the promote the amount of care so liability
Ps loss; the two causes were to all practical is cut off.
intent simultaneous and concurrent; it is
rather a case of joint tort than an
intervening cause Alexander v. Town of New Castle The P
persuaded the town justice to appoint him
Village of Carterville v. Cook The special constable so that he could arrest a
defendant city maintained a sidewalk that known gambler personally. As the P was
at one point was 6 feet off the ground. taking a gambler to jail, the gambler seized
However, there were no rails. Another him and threw him into a pit in the sidewalk
pedestrian innocently and accidentally that the D town had left open. The P sued
jostled the plaintiff and caused him to fall. the town of New Castle for negligently
He sued saying it was the defendants fault failing to enclose a pit that had been dug
because there were no rails. The court into one of its streets.
agreed. Modak: Having a raised sidewalk Holding: The criminal was clearly an
without a rail is creating a risk. The intervening as well as an independent
negligent failure to provide railings was a human agency in the infliction of the
proximate cause of their damages. (Here it injuries of which the P complained. (Here
was the same type of harm that could the untaken precaution was that they did
occur because of the absence of railings; not cover the pit. Here we are thinking
Here the lack of railings increased the risk about pedestrians and the general public as
of harm to pedestrians; Similar to Brauer the class of persons; the P, special
bc here it is foreseeable that ppl would fall) constable, is not within the class. It was
more of a coincidence here)
Scott v. Shepherd Sheperd tossed a
lighted firecracker into a crowded market. The Roman Prince The P was in the cabin
It landed next to a man named Willis, who of a barge when the barge was negligently
immediately flung it away to protect struck by the Ds steamship. The P noticed
himself; it then landed next to Ryal, who that the barge had started to leak, but she
also hurled it away. The firecracker finally did not think that that it was sinking and
landed in the face of the P, where it declined to board another barge. Half an
exploded and put out one of his eyes. The hour later the barge had sunk far enough
P sued Shepherd. that the water was coming on deck. The P
Issue: Whether the P stated a good claim then tried to escape and stumble injuring
against Shepherd for trespass, the form of her knee. She sued claiming that the D was
action used to complain of directly inflicted responsible for her injuries.
injuries, or whether the suit should have Holding: The court found for the defendant
been brought as an action for trespass on saying their original act of hitting her boat
the case, the form of action used to bring was not was caused her injury because she
claims for injuries inflicted indirectly. chose because of somewhat natural desire
Holding: The court found for the defendant to stay by the vessel to take the risk of
because the men who hit the firecracker sinking and consequently harmed her knee
away from them were not free agents but trying to flee from the boat, Her decision
were acting under a compulsive necessity was reflective whereas the people in Scott
for their own safety and self preservation. just reacted. Here she made a decision to
stay and put herself in harms way. When a
Thompson v. White - Liability The P, plaintiff makes a reflective decision that
who was injured when her car was struck puts them in harms way they can not
at the rear by the D driver, sued the driver recover. Here there was a passage of time
of the other car and the gas station Gulf. of when the boat was hit and the P chose
Her evidence was that Gulf had hired not to get off.
clowns to stand at the street and waive
signs, which distracted the D driver.
Holding: The court held that his
negligence if any was a concurring cause
and not an independent intervening cause
which would insulate the Gulf defendants
from liability. When an individual is not
a free agent they can not be an
intervening cause; in this case the D
driver was not a free agent because they
were acting under the influence of the
clowns/distracted. Here they should
foresee that there may be one or more car
that is distracted. Similar argument to
Scott because her the distraction of the
drivers by the clowns was a reflexive act
like throwing the firecracker away from
their body was a reflexive act. HERE
MAKE PUBLIC POLICY ARGUMENTS OF
INCENTIVES TO TAKE MORE CARE

Limitation of Duty: An Alternative Approach

Liability No Liability
Palsgraf v. Long Island R.R. Co. Guy is
getting on train with package and jumps on
the and almost falls. The guard on the car
reached and pulled him in and the guard
on the platform pushed him in. The
package dropped and fireworks contained
in the package exploded causing scales at
the end of the platform to fall and injure
the P who was on the other end of the
platform.
Cardozo (majority) - Wants to focus on
duty (the judge decides duty as a matter of
law). The affirmative act that the guard
took was to far remove to create a duty to
other persons on the other end of the
platform. The idea is if you dont know
where the scope of liability is, you dont
know how much care to take. The guards
could not foresee harm when the package
was completely sealed with no notification.
- Proximate cause (the jury decides as a
question of fact) Here the main advantage
here is that the court is trying to draw a
line. The orbit of danger = the orbit of
duty. Here the orbit of danger is helping
him on board they could have used more
care (the package and the passenger is the
care that Cardoza is concerned about not
the woman down the road). Here he does
concern himself with the unpredictable
scope of liability. Here the reason Cardoza
wants this to be a duty issue is bc he wants
to decide the case and get rid of it. Here
the harm to the property is foreseeable but
not the harm to the person. The P was not
within the orbit of danger. No duty owed to
the P was breached.
Andrews (dissent) Duty: Every one
owes to the world at large the duty of
refraining from those acts that may
unreasonably threaten the safety of
others. Not only is he wronged to the
person that harm might reasonably be
expected to result, but he also wrongs
those are in fact injured.
Proximate cause (jury decides as a
question of fact): Relates to idea of
common law and the wishes of the people.
The people should define what the scope of
negligence is. He took more precaution.
Look at foreseeability- too far removed or
to remote. Focuses on what is reasonable
(what is reasonable for the; Here there is a
duty to the world. Here a special
relationship argument would have likely
been a stronger argument.

Strict Liability
A. Liability for Animals
Restatement 3d. 24 Scope of Strict Liability
- Strict liability under 20-23 does not apply
(a) if the person suffers physical harm as a result of making contact with coming into
proximity to the defendants animal or
abnormality dangerous activity for the purpose of securing some benefit from that contact
or that proximity or
(b) if the defendant maintains ownership or possession of the animal or carries on the
abnormally dangerous activity in pursuance of
an obligation imposed by law.
Assumption of the Risk
Express Assumption of the RiskContractual Release
Implies Assumption of the Risk
Primary (complete defense) (similar to contributory negligence)
o No Duty or
o No breach of duty
Secondary (merged into Comparative Fault in many states)

Strict Liability: Public Policy (See slide)

Activities Dangerous even when carefully conducted (additional
precautions not available
Non-reciprocal Risks (George Fletcher)
Incentive to reduce amount of activity (Landes and Posner) rather than
increase the amount of care (negligence)

Liability No Liability
Behrens v. Bertram Mills Circus, Ltd. Earl v. Van Alstine No liability. D kept
Dog scared elephant at the circus, which beehives by a public highway where the
caused the elephant to run towards the dog plaintiff was driving his horses and the bees
and knock down a booth that the Ps were attacked the horses and killed one of the
inside of. The Ps were injured. horses and injured the other.
Modaks issue: whether elephant, and Issue: Are the bees a ferocious animal or a
especially these elephants, should be domestic animal? Bees have been studied
classified as ferae naturae (wild animal) or and contained and mastered by man for a
mansuetae naturae (domesticated)? period of time. Thus they walk a fine line
Rule: A person who keeps an animal between ferocious and domestic
with knowledge (scienter retinuit) of however, because these had been in the
its tendency to do harm is strictly same place for 8 years or so and they had
liable for damage that it does if it never harmed anyone thus they should
escapes; he is under an absolute duty not be liable. If an animal is useful and
to confine or control it so that it shall domesticated and can be controlled or
not do injury to others. All ferae managed there should be no liability.
naturae (wild animals) are conclusively Here the bees were close to the
presumed to have such a tendency, so borderline but ultimately they were
that scienter need not in their case be deemed more mansuetae naturae.
proved. Modern bee like an ox and cow. The
Holding: As a matter of law an elephant is idea of usefulness. Usefulness may be
ferae naturae, and the judge took judicial another reason we reclassify things. A
notice that it is common knowledge possible scale with respect to
(culturally based) that elephants are wild by dangerousness and usefulness.
nature. Here there is no social utility for the
elephants in London. It does not matter Banks v. Maxwell - no liability A guy
that the elephant had been tamed; she is to walked into a pen with a bull and got gored
be treated as if she were a wild elephant. It ROL- a person injured by a domestic
follows that the Ds are liable for any injury animal in order to recover damages
done while the elephant was out of control. must show two essential facts the (1)
animal inflicting the injury must be
Candler v. Smith Lady went to the zoo dangerous vicious mischievous or
when she got back there was a baboon in ferocious or one termed in the law as
her car and it acted threatening toward her possessing a vicious propensity and 2)
and tore up all her currency she sued the the owner must have actual or
zoo and she won. Where it is alleged that a constructive knowledge of the vicious
monkey or baboon (being classed as ferae propensity character and habits of the
naturae) had escaped from it splace of animal. In this case the bull had never
confinement and come upon the plaintiffs exhibited aggressive behavior before so no
premises and there committed the injury liability. (compare to Smith v. Pelah and
complained of this is sufficient to withstand Vaughn) Here the bull is useful and
a demurrer even though it is not stated in dangerous, but arguably less than wild
the petition how the escape was effected it animals.
is not necessary to allege that the owner
was negligent in allowing the animal to be Vaughn v. Miller Bros. No Liability. A
at large for his is bound to keep it secure at monkey bit the plaintiff at the circus. She
his peril. The baboon is not really useful. If said the D wasnt negligent but they should
an owner is keeping an animal that is be strictly liable. The court said no liability
classified as ferae naturae it is not because there is a strong public policy
necessary to allege that the owner was argument in favor of allowing municipalities
negligent in allowing the animal to be to continue keeping zoos. All that should
at large because they are bound to be required of the keeper of such
keep it secure. If an animal is wild, you animals is that he should take that
keep it at your own risk. Baboons are not superior caution to prevent their doing
very useful. Here it is likely more dangerous mischief which their propensities in
to have a baboon. that direction justly demand of him.
Here precaution is taken and the
Smith v. Pelah If a dog bites someone and monkey was socially useful. There is a
the owner doesnt do anything about it then social utility in zoos. The P was
he is liable for any subsequent biting that contributory negligent.
may occur as a result of his failure to put
the dog down. If a species is held to be Bostock-Ferari Amusements v.
tame that decision does not Brocksmith No Liability. A man had
necessarily relieve the owner of muzzled a bear and was walking with it
liability for damage the animals cause. down the street. The P was walking his
Instead the focus of the inquiry horse and the bear became frightened at
becomes the extent of the owners the sight of the bear and injured the P.
knowledge that the animal had a Reasoning: When a person is injured by an
propensity for the sort of mischief it attack by an animal ferae naturae, the
created. If the owner had such negligence of the owner is presume,
knowledge he is held liable for it and because the dangerous propensity of such
the most common way for such an animal is known, and the law recognizes
knowledge to be shown is by that safety lies only in keeping it secure.
demonstrating that the animal had However, in this case the injury didnt result
behaved the same way in the past. from a vicious act by the bear or its owner
Thus the one bite rule. After a dog has keeping it unsecured. When an owner
bitten once the owner is aware that keeps an animal that is ferae naturae
they have exhibited that behavior and secure and an accident occurs that
is responsible if they do it again. Dogs wasnt the result of an act of that
are useful and not usually dangerous. animal then they are not liable. Here
The dog can be classified as wild after the bear was kept secure and was properly
the first bite. R.3d Posnerif you have restrained. Here the court is saying if you
a dangerous dog and you think the have a horse that is easily spooked then
benefits of keeping the dog are you need to take precaution.
worthwhile, then you are going to be
strictly liable for the dog (so you Opelt v. Al G. Barnes No Liability. A kid
should bear the cost, not the person crossed over all the barriers between itself
that gets bitten) and the leopard at the circus. The leopard
scratched him. D is not liable because the
Baker v. Snell Liability. D owned a hotel kid willingly put themselves in harms way.
and kept a dog that he knew to be vicious. When a plaintiff places himself in
Usually the dog was kept locked up. harms way of an animal that is ferae
However, the worker let the dog lose naturae then the owner is not liable.
around the maids to see if it would bite Here the P was negligent and there
them. The dog bit the P. D is liable despite was an assumption of the risk.
the workers intervening act bc the owner of
an animal known to be savage is strictly Gomes v. Byrne. Here the plaintiff was
liable for any damage it causes. salesman and entered into a lawn where he
Rule: It is a wrongful act for a person knew a dog was present and barking. The
to keep an animal which he knows to dog bit him and the P responded that it was
be dangerous that is an authority that the hazard of the game.
the person so keeping it is liable for The P voluntarily exposed himself to the
the consequences of his wrongful act, obvious hazard. Here the P assumed the
even though the immediate cause of risk by seeing the barking dog and he could
damage is the act of a third party. have walked away. In Behrens, there was
Here the dog, unlike the bear in no social utility for the elephants, versus
Bostock, was not properly restrained. here dogs are socially useful for protection.
Also in Behrens, there was also no evidence
of assumption of the risk because they did
not leave the stall were they were placed.
Here there was an implied assumption
of the risk.

Abnormally Dangerous Activities

Restatement (second) of Torts (1965)
519 General Principle
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the
person, land or chattels of another resulting from the activity, although he has exercised the
utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the
activity abnormally dangerous
520. Abnormally Dangerous Activities (Modak Likes Better)
In determining whether an activity is abnormally dangerous the following factors are to be
considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care; (negligence or strict
liability)
(d) extent to which the activity is not a matter of common usage;
(e) in appropriateness of the activity to the place where it is carried on, and by
(f) extent to which its value to the community is outweighed by its dangerous attributes
R. 3d (2005) 20. STRICT LIABILITY
(a) An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity.
(b) An activity is abnormally dangerous if: (Modak says 520 E & F arent as well included)
(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 (way of bringing in the other
factors).
Two purposes of Strict Liability
(1) discourage activity in question
(2) unreciprocal risk

Liability No Liability
Siegler v. Kuhlman - Liability - A truck Indiana Harbor Belt Ry. Co. v. American
hauling gas had an accident and the gas Cyanamid Co.
spilled a 17 year old girl drove over it and it The D was the manufacturer of acrylonitrile;
ignited causing her to die. Hauling it loaded 20,000 gallons of the chemical
gasoline is an activity for which one into a railroad tank car that it had leased
should be strictly liable because it is from the North American Car Corporation.
very dangerous and risky and it A train of the Missouri Pacific Railroad
doesnt matter that there is no other picked the car up and carried it to Blue
way of doing it or that it is not Island railroad yard of Indiana Harbor Belt
unusual. Different from Indiana Harbor bc Railroad, the P. Employees noticed that the
here evidence for negligence was destroyed flammable liquid was leaking from the car.
by fire and the dangers of hauling gasoline Concerned that there had been
cannot be eliminated by the exercise of contamination, authorities ordered the P to
reasonable care as the facts here state that take decontamination measures that cost
the truck driver performed all necessary the P $981,022.75. The P argued that the D
safety checks. Here there is a high risk was strictly liable bc the transportation of
of destruction of evidence when the the chemical through the metropolitan area
gasoline explodes (the was abnormally dangerous.
couterargument to this though is that Rule: R. 520; When a lack of care can
here you could still use negligence, be shown in court, such accidents are
but the res ipsa loquitur (Judson; 201) adequately deterred by the threat of
could be used and a CA to that is that liability for negligence.
gasoline can explode without Holding: This case is not an apt case for
negligence on part of the driver). Here strict liability. Here the leak was caused by
they are worried about a pocket of a breach of the duty to properly inspect or
immunity. BC everything is destroyed maintain the railroad car. The strict liability
in the explosion, it may be hard to argument is flawed because rerouting is not
prove negligence. Strict liability possible due to the nature of railroad
(relocate activity or decrease it. (See transportation is that it goes through
slide and print) metropolitan areas and it could possibly
increase the risk of accidents bc it would
Klein v. Pyrodyne Corp. No liability- The make the route longer. Negligence is
D was a general contractor hired to provide sufficient bc proper inspect would reduce
aerial fireworks. During the display, a the risk of this happening. Posner thinks the
mortar was knocked into a horizontal key factor of R. 520 is whether you can
position and a rocket inside discharged into eliminate the risk by the exercise of
a crowd of people who were injured. They reasonable care.
sued.
Holding: The court held that the D was Miller v. Civil Constructors A stray bullet
strictly liable for damage caused by its from a shooting range hit a pedestrian. The
fireworks. The court says that no matter court found that this is not something to be
how much care pyrotechnicians exercise, strictly liable for. Because it is not ultra
they cannot entirely eliminate the high risk hazardous even if it is highly dangerous .
inherent in setting off powerful explosives The doctrine of strict liability is reserved
such as fireworks near crowds. Its also not for abnormally dangerous activities for
really common that as it only takes place which no degree of care can truly provide
roughly twice a year; changing the location safety. Using firearms is common. If its in
is not plausible bc fireworks have to be an appropriate place and has some
nearby for the crowd to see; not socially social utility. 1. Reasonable care would
useful. eliminate the risk 2. It was in an
appropriate place 3. It was common 4.
Sullivan v. Dunham Liability- Ds used There was social utility A negligence
dynamites to remove trees from land. The standard would work here bc risk can be
blast caused a section of the tree stump to eliminated with the use of due care.
strike the Ps intestate, killing her.
Strict liability applies to use of Madison v. East Jordan Irrigation Co.
dynamite. No liability- The D was using explosives for
Holding: The trial court instructed the jury repairs. The resulting vibrations and noises
that they P did not have to show negligence caused the Ps mother minks to kill their
on the Ds part in order to recover from kittens bc they were easily excitable at the
them. (Public policy: here there is an time on the farm located nearby.
alternative way of removing tress stumps; Rule: He who fires explosives is not
no reasonable care in location because it liable for every occurrence following
was close to highway; not much social which has a semblance of connection
utility bc ppl dont tend to use dynamite to to itthe results chargeable to the
remove tree stumps) nonnegligent user of explosives are
those things ordinarily resulting from
an explosion. R. 519 (Here mother minks
killing their kittens is not the type of harm
that tends to result from use of explosives)
(similar to Bostock-Ferari bc the there harm
did not result from the bear attacking the
horse, so it was not the type of harm one
would expect to result; anything could have
startled the horse and the minks). (here
blasting is located in a rural place and is
common type of activity to use blasting to
repair canals)

D. Respondeat Superior (vicarious or indirect liability)

Doctrine generally holds employers strictly liable for torts committed by their
employees in the course of their work. It is thus a prominent example of vicarious
liability: liability for one party based on the wrongs of another.

2nd R. of Agency Section 220. Definition of Servant

 1) A servant is a person employed to perform services in the affairs of another and who
with respect to the physical conduct in the performance of the services is subject to
the others control or right to control.
2) In determining whether one acting for another is a servant or an independent
contractor, the following matters of fact, among others, are considered:
a) The extent of control which, by the agreement, the master may exercise over the
details of the work;
b) Whether or not the one employed is engaged in a distinct occupation or business;
c) The kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist without
supervision;
d) The skill required in the particular occupation;
e) Whether the employer or the workman supplies the instrumentalities, tools, and
the place of work for the person doing the work;
f) The length of time for which the person is employed;
g) The method of payment, whether by the time or by the job;
h) Whether or not the work is a part of the regular business of the employer;
i) Whether or not the parties believe they are creating the relation of master and
servant; and
j) Whether the principal is or is not in business.

2nd R. of Agency Section 265. General Rule.

1) A master or other principal is subject to liability for torts which result from reliance
upon, or belief in, statements or other conduct within an agents apparent authority.
2) Unless there has been reliance, the principal is not liable in tort for conduct of a
servant or other agent merely because it is within his apparent authority or apparent
scope of employment.

2nd R. of Torts Section 416. Work Dangerous in Absence of Special Precautions.

One who employs an independent contractor to do work which the employer should
recognize as likely to create during its progress a peculiar risk of physical harm to others
unless special precautions are taken, is subject to liability for physical harm caused to them
by the failure of the contractor to exercise reasonable care to take such precautions, even
though the employer has provided for such precautions in the contract or otherwise.

Liability No Liability
Ira S. Bushey & Sons v. United States Miller v. Reiman Wuerth Corp. The D
(drunken sailor open valves that caused was the employer a man involved in a car
drydock to flood; parts of the drydock sank accident. The D gave the employee
and the ship partially did; the drydock permission to go to the bank to deposit a
owner sought compensation. The D argued check. On the way back, the employee was
that the seamans acts were not within the involved in the car accident with Ps. They
scope of employment so they should not be sued the employer.
liable) Reasoning: To accept contention that the
Rule: The employer should be held to employer was responsible for the mans
expect risks, to the public also, which conduct would also require acceptance of
arise out of and in the course of his the contentions that policies for employee
employment of labor. happiness by allowing vacations, no
Analysis: Here it was foreseeable that Saturday work, or lunch hours, coupled with
crew members crossing the drydock might directions to return to work immediately
do damage, negligently or even afterwards would place the employees in
intentionally. Here the seaman had come the scope of employment, without more,
within the closed-off area where his ship while on these outings. A reasonable mind
lay, to occupy a berth to which the cannot find such activities within the scope
Government insisted he have access, and of employment, without more.
while his act is not readily explicable, at Rule: An employer is not liable for
least it was not shown to be due entirely to torts committed by an employee while
facets of his personal life. on frolic or detour of his own.
Holding: Man was not acting within the
Konradi v. U.S. mailman was driving to scope of employment so the employer is
work when he collided with the car of not liable.
Konradi, causing Konradis death. His
estate sued the U.S. Miami Herald Publishing Co. v. Kendall
Rule: The possibility of the employer Ds newsboy was making home deliveries of
reducing the number of accidents by newspapers when he ran over the P with his
caused by his employees by altering motorcycle. The P sued Herald for damages.
the nature or extent of his operations D Herald argued that it could not be liable
(altering activities) is to be considered for newsboy negligence bc he was an
in deciding whether to impose strict independent contractor rather than an
liability. employee as expressed in the Ds contract
Holding: If the Postal Service insists for with the newsboy.
times sake that the carrier always travel to Rule: If the one securing the services
and from work by the most direct route, controls the means by which the tasks
which may not be the safest route, the is accomplished, the one performing
Service should be liable for the accidents the service is an employee, if not, he is
that result from this directive; it has made an independent contractor. The
them more likely (here it was evidence doctrine of respondeat superior does
that the postmaster required the postal not apply to independent contractors.
carriers to take the most direct route in (It was left entirely to the paperboy to
driving to and from work; nor was the select the conveyance which he would use
carrier to stop for personal business, or give to transport the papers from the point of
anyone a ride.) origin to the subscribers front porches.
Holding/Analysis: Every element is so
clearly present as to establish beyond
argument that the arrangement between
the appellant and the paperboy one of
independent contractorship. We have
definite opinion that newspaper boys as
they perform their work in this country
constitutes a distinct occupations, Sec.
220(2)(b), and that provisions in of the K
are harmonious with that idea. While
actually making deliveries he was acting
alone and as a specialist to the extent of
following his route, remembering
addresses, and properly accounting for
funds, Sec. 220(c) and (d). He furnished his
own vehicle, Sec. 220(e). The length of the
engagement was specified in the contract,
Sec. 220(2)(f). It is clear from the K that
the parties believed they were making the
paperboy an independent contractor, Sec.
220(2)(i).
Products Liability

R. 402a. Special Liability of Seller of Product for Physical Harm to User or

Consumer (manufacturing defects)
1) One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer, or to his property, if
a) The seller is engaged in the business of selling such a product, and
b) It is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
2) The rule stated in Subsection (1) applies although
a) The seller has exercised all possible care in the preparation and sale of his
product, and
b) The user or consumer has not bought the product from or entered into any
contractual relation with the seller.
Comment i
Consumer Expectations Test: Comment i, which defines unreasonably
dangerous, forecloses liability against manufacturers unless a product is
dangerous to an extent beyond that which would be contemplated by the
ordinary consumer with knowledge common to the community

R. 1. Liability of Commercial Seller or Distributor for Harm Caused by

Defective Products.
One engaged in the business of selling or otherwise distributing products who sells
or distributes a defective product is subject to liability for harm to persons or
property caused by the defect.

R. 2 Categories of Product Defect.

A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of inadequate
instructions or warnings. A product:
a) Contains a manufacturing defect when the product departs from its intended
design even though all possible care was exercised in the preparation and
marketing of the product;
b) Is defective in design when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design
renders the product not reasonably safe;
c) Is defective because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the provision of reasonable instructions or warnings by the seller
or other distributor, or a predecessor in the commercial chain of distribution,
and the omission of the instructions or warnings render the product not
reasonably safe.
Comment a. History. The liability established in this Section draws on both
warranty law and tort law. Historically, the focus of products liability law was on
manufacturing defects. A manufacturing defect is a physical departure from a
products intended design. See R. 2(a). Typically, manufacturing defects occur
in only a small percentage of units in a product line. Courts early began
 imposing liability without fault on product sellers for harm caused by such
defects, holding a seller liable for harm caused by manufacturing defects even
though all possible care had been exercised by the seller in the preparation and
distribution of the product. In doing so, courts relied on the concept of warranty,
in connection with which fault has never been a prerequisite of liability.

Public Policy
Consumer Expectations & Reliance seller impliedly represents the
product on the market is reasonably safe and healthy
Non-reciprocal Risks (manufacturer imposes non-reciprocal risks on
consumer and reaps economic gain fair to hold responsible)
Problems of Proof rather often difficult and costly for purchaser or
consumer to prove negligence (pocket of immunity)
Incentive for Manufacturers to make products as safe as possible
Best Cost Avoider - manufacturer in the best position to make products
safe

B. Manufacturing Defects
Liability No Liability
Welge v. Planters Lifesavers Co. Dreisonstock v. Volkswagenwerk
Liability- Peanut jar shattered when P The P was a passenger in a Volkswagen
was putting top back on, and seriously microbus that crashed into a
injured the Ps hand. The P sued the K- telephone pole, causing her various
Mart the seller, Planters the injuries. She brought a suit against
manufacturer who filled the jar with the Volkswagen claiming that the bus was
peanuts and sealed it, and Brockway negligently designed and thus not
the manufacturer of the glass jar itself. crashworthy.
Rule: A seller who is subject to Rule: risk/analysis approach
strict products liability is Reasoning: Designed for special use of
responsible for the consequences transporting cargo; The usefulness of
of selling a defective product even the design is vouchsafed by the
if the defect was introduced popularity of the type. It was a special
without any fault on his part by his utility as a van for transporting of light
supplier or by his suppliers cargo, as a family camper, as a station
supplier. (The plaintiff can recover wagon and fur use by passenger groups
from any of these parties and they are too large for the average passenger car.
responsible for sorting liability out Holding: There was no evidence that
among themselves since they are there was any practical way of
contracting parties) improving the crashability of the
(similarity here to res ipsa loquitur vehicle that would have been
because it can be inferred that this kind consistent with the peculiar purpose of
of accident would not have occurred the car. The beneficial utility/purpose
but for a defect in the product, and if it of the car outweighs it unsafety.
is reasonably plain that the defect was
not introduced after the product was McCarthy v. Olin Corp. A man
sold, the accident is evidence that the opened fire killing several people. He
product was defective when sold) used Black Talon bullets, a hollow point
 bullet designed to bend upon impact
Dawson v. Chrysler Corp. P brought into razor sharp petals that increase
a defective productive suit against the wounding power of bullet. Survivors of
manufacturer because the car wrapped the ppl who were killed sued Olin, the
around a pole that it struck in a car manufacturer of the bullets, alleging
accident, causing him to become that the company should have been
paralyzed. The P alleged that the car held strictly liable for the bullets were
was defective because it did not have a defectively designed.
full, continuous steel frame extending Rule: A defectively designed
through the door panels. The Ps claim product is one which, at the time it
that had the vehicle been so designed, leaves the sellers hands, is in a
it would have bounced off the pole condition not reasonably
following relatively slight penetration by contemplated by the ultimate
the pole into the passenger space. The consumer. (Consumer Expetations
D argued that the design of the car Test R. 402A comment i) Here the
complied with all federal vehicle safety very purpose of the Black Talon bullet is
standards, and the alternative design to kill or cause severe wounding and it
offered by the Ps would be less safe performed precisely as intended.
than the existing design. There must be something wrong
Rule: risk/utility analysis: Under with a product before the
this approach, a product is defect if risk/utility analysis may be applied
a reasonable person would in determining whether the
conclude that the magnitude of the product is unreasonably dangerous
scientifically perceivable danger as or defective. The purpose of the
it is proved to be at the time of risk/utility analysis is to determine
trial outweighed the benefits of the whether the risk of injury might
way the product was so designed have been reduced or avoided if
and marketed. R. 2(b) the manufacturer had used a
7 factors relevant to this balancing feasible alternative design. Here
test: the primary function of the bullets was
1) the usefulness and desireability of to kill or cause injury. There is no
the product, its utility to the user, and reason to search for an alternative safer
to the public as a whole. design where the products sole utility
2) The safety aspects of the product, is to kill and maim.
the likelihood that it will cause injury,
and the probable seriousness of the
injury.
3) The availability of a substitute
product which would meet the same
need and not be as unsafe.
4) The manufacturers ability to
eliminate the unsafe character of the
product w/o impairing its usefulness or
making it too expensive to maintain its
utility.
5) The users ability to avoid danger by
the exercise of care in the use of the
product.
7) The feasibility, on the part of the
manufacturer, of spreading the loss by
setting the price of the product or
carrying liability insurance.
Modaks comments: arguing that the
design complied with federal vehicle
standards is not effective

D. Failure to Warn
Liability No Liability
Brown v. McDonalds Corp. P Graves v. Church & Dwight The P
ingested a vegetarian sandwich from had heartburn, so he poured some
McDonalds. She experienced an baking soda into a glass of water and
allergic reaction after ingesting it drank it. This caused a rupture in his
because the sandwich contained an stomach. He sued the manufacturer of
ingredient derived from seaweed and the baking soda for failure to warn of
she was allergic to see food. The P this possible consequence of ingesting
sued the D claiming that the D should the product. There was evidence that
have warned its patrons of this. the P smoked cigarettes even though
he was aware that cigarettes bore a
Liebeck v. McDonalds Corp warning label concerning the health
Evidence that McDonalds coffee is hazards. Graves argues that he is
hotter than other places which allowed entitled to a presumption that he would
the court to conclude that the D should have heeded a proper warning if it had
have warned that the coffee was been provided.
unusually hotter than other places. Rule: Individuals are entitled to the
presumption that he/she would
have heeded proper warnings if
provided; however, the
presumption can be rebutted by
the D with sufficient evidence.
Holding: The court agreed that P was
entitled to presumption, but held that in
this case there was sufficient evidence
to rebut it. Here the analogy between
the Ps smoking in the face of health
warnings on cigarettes, and his
projected behavior if a warning had
been on the baking soda rebutted that
presumption.

McMahon v. Bunn-O-Matic Corp P

spilled hot coffee on herself causing 3rd
burns and sued the seller of the coffee
alleging that the seller should have
warned of the unusually hot
temperature of the coffee.
Lack of evidence