Torts Law Outline

Torts Law Outline – Spring 2025
Class 1 – Introduction to Torts & Overview

of Negligence
📖 Reading Assignment: Goldberg et al., Tort Law: Responsibilities and Redress (5th ed. 2021),
pp. 3-11; 49-54
📂 Supplemental Material: Torts PPT Class Spring 25-01 - Tagged.pdfTorts PPT Class Spring
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I. What is Tort Law?

Tort law is the branch of civil law that addresses wrongful acts causing harm or injury, where
the law provides a remedy in the form of damages.
Tort Law vs. Criminal Law vs. Contract Law
 Tort Law: Provides compensation for private wrongs.

 Criminal Law: Punishes offenses against the state.
 Contract Law: Governs voluntary agreements between parties.
📌 Key Themes in Tort Law (from Prof. Cravens' slides)Torts PPT Class Spring …:
 Who should bear responsibility for harm?

 How should costs be distributed?
 What legal process is used to determine fault?
✅ Tort law deals with breakages, explosions, fires, defective products, and bizarre
accidents!
II. Black Letter Law on Torts

1. A tort is a civil wrong for which the law provides a remedy.
2. There are three primary categories of torts:
o Intentional Torts (e.g., battery, assault).
o Negligence (failure to act with reasonable care).
o Strict Liability (liability without fault).
3. The plaintiff must establish all elements of the tort to recover damages.
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📌 Additional Focus from ClassTorts PPT Class Spring …:
 Deterrence vs. Compensation: Some tort rules focus on discouraging harmful behavior,
while others ensure injured parties receive compensation.
 Boundaries of Responsibility: Courts decide where to draw the line in holding people
accountable for harm.
III. Categories of Torts

1. Intentional Torts – Deliberate acts causing harm (e.g., battery, defamation).
2. Negligence – Failure to exercise due care, leading to injury (most common).
3. Strict Liability – Liability imposed regardless of fault (e.g., defective products).
📌 Example:
 A driver who intentionally hits someone is liable for battery (intentional tort).
 A driver who accidentally runs a red light and hits someone is liable for negligence.
 A company that manufactures a defective airbag may be held liable under strict
liability, even if it was not negligent.
IV. Overview of Negligence

Negligence occurs when a person fails to act as a reasonable person would in similar
circumstances, causing harm.
Elements of Negligence (4-Part Test)
A plaintiff must prove all four elements to succeed in a negligence claim:
1. Duty – The defendant owed a legal duty to the plaintiff.

2. Breach – The defendant failed to meet that duty.
3. Causation – The breach caused the plaintiff’s harm.
4. Damages – The plaintiff suffered actual injury or loss.
📌 Example:
 A store owner owes a duty to customers to maintain safe premises.

 If they fail to clean up a spill and a customer slips, they have breached their duty.
 If the fall directly causes an injury, the store is liable for negligence.
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V. Key Cases Introduced in This Reading
Case 1: Vosburg v. Putney (1891)
📌 Issue
Does a defendant need to intend harm to be liable for battery?
📌 Rule
 Intent to touch is sufficient for liability, even if harm was unintended.

 Eggshell Plaintiff Rule: Defendants take victims as they find them.
📌 Application
 A schoolboy lightly kicked another in the leg during class.

 The kick aggravated a pre-existing condition, causing severe injury.
 Although the defendant did not intend harm, he intended the contact, which was
enough to establish liability.
📌 Conclusion
 Putney was liable for battery because he intended the physical contact.
 The extent of injury was irrelevant due to the Eggshell Plaintiff Rule.
📌 Key Takeaway
 A defendant is responsible for all harm caused by their intentional act, even if the
harm was unforeseeable.
Case 2: Palsgraf v. Long Island Railroad Co. (1928)
📌 Issue
Is a defendant liable for negligence if the harm was unforeseeable?
📌 Rule
 Duty is limited to foreseeable plaintiffs within the "zone of danger."
📌 Application
 A railway worker helped a man onto a train, causing the man to drop a package of
fireworks.
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 The fireworks exploded, knocking over scales, which fell and injured Palsgraf, who was
far away.
 The court ruled that the injury was not foreseeable, so no duty was owed to Palsgraf.
📌 Conclusion
 The railroad was not liable because the harm was too remote and unforeseeable.
📌 Key Takeaway
 Negligence liability is limited by foreseeability.
✅ This case introduced Judge Cardozo's "zone of danger" test for duty.
VI. Legal Terms to Know

 Tortfeasor – The person who commits a tort.
 Cause of Action – The legal basis for a lawsuit.
 Foreseeability – Whether a reasonable person could anticipate harm.
 Eggshell Plaintiff Rule – A defendant is liable for all harm, even if the victim was
unusually vulnerable.
 Respondeat Superior – Employers may be liable for employees’ torts.
📌 Example of Foreseeability:
 If a driver runs a red light and hits a pedestrian, the injury is foreseeable.
 But if a tree falls on the pedestrian a minute later, the tree’s fall is not foreseeable and
not part of the driver's liability.
VII. Policy Considerations

📌 From Class Discussion (Prof. Cravens' Slides)Torts PPT Class Spring …
 Tort law is about balancing interests:

✅ Protecting individuals from harm vs. ❌ Avoiding excessive litigation.
 Negligence rules aim to achieve fairness, deterrence, and efficiency.
Key Policy Debates
 Should courts expand liability for emotional distress?
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 Should companies face strict liability for defective products, even if they exercised
reasonable care?
 Should Good Samaritan laws protect rescuers from lawsuits?
VIII. Key Takeaways from Class 1

✅ Tort law governs civil wrongs and compensation.
✅ Three main types of torts: intentional, negligence, and strict liability.
✅ Negligence requires duty, breach, causation, and damages.
✅ Foreseeability is crucial in determining liability (Palsgraf).
✅ Policy considerations shape tort rules and their application.
Class 2 – Negligence: General Duty of Care

pp. 54-75
📂 Supplemental Material: Torts PPT Class Spring 25-02 - Tagged.pdfTorts PPT Class Spring
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I. Introduction to Duty in Negligence

What is Duty in Negligence?
 Duty is the legal obligation to act in a certain way toward others.

 It is relational—a duty exists between specific parties based on their relationship and
circumstances.
 In negligence cases, duty is a question of law decided by the court, not the jury.
📌 Class Notes from Prof. CravensTorts PPT Class Spring …:
 Duty is not assumed—it must be justified in each case.

 Some cases involve "easy duty" questions, where the duty owed is clear.
 Policy considerations affect duty rules, such as fairness, justice, and efficiency.
II. Black Letter Law on General Duty of Care

1. Everyone owes a general duty of reasonable care to avoid foreseeable harm.
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2. Foreseeability is the key test—if harm is foreseeable, a duty is owed.
3. Courts decide duty as a matter of law, while juries decide breach.
4. The scope of duty depends on the nature of the relationship between the parties.
5. Special rules may limit or expand duty in certain cases (e.g., premises liability,
professionals).
📌 From Class PPTsTorts PPT Class Spring …:
 There is no default "general duty" rule—each case requires analysis.

 Privity of contract used to limit duty, but courts have expanded it over time.
III. The Reasonable Person Standard in Duty

 The duty of care is based on how a reasonable person would act.
 Objective Standard: Courts do not consider the defendant’s personal judgment.
 Foreseeability matters: If harm was predictable, the defendant may owe a duty.
📌 Example:
 A driver owes a duty to pedestrians to stop at crosswalks because it is foreseeable that

failing to stop could cause harm.
✅ If harm is not foreseeable, no duty exists.
IV. Key Cases on General Duty of Care

These cases illustrate how courts determine when a duty exists.
Case 1: Winterbottom v. Wright (1842)
📌 Issue
Does a manufacturer owe a duty of care to a third party who was not in a contract with them?
📌 Rule
 Privity of contract was originally required for a duty to exist.

 A duty was only owed to parties directly in contract with the defendant.
📌 Application
 A stagecoach driver was injured when the coach collapsed.
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 He sued the manufacturer, but the court ruled no duty existed because the driver had no
contract with the manufacturer.
📌 Conclusion
 The court denied liability to prevent unlimited lawsuits against manufacturers.

 This strict privity rule was later abandoned in favor of foreseeability-based duty.
📌 Key Takeaway
 Early tort law required contractual relationships (privity) for a duty to exist.
Case 2: Thomas v. Winchester (1852)
📌 Issue
Does a manufacturer owe a duty of care when a product poses an imminent danger to human
life?
📌 Rule
 A duty exists when a product presents an imminent danger, even without privity.
📌 Application
 A poisonous drug was mislabeled as a harmless medicine.

 The court ruled that privity does not apply when the product is inherently dangerous.
📌 Conclusion
 The manufacturer was held liable because foreseeable harm existed.
📌 Key Takeaway
 Courts began expanding duty beyond privity when serious risks were involved.
Case 3: MacPherson v. Buick Motor Co. (1916)
📌 Issue
Does a manufacturer owe a duty to anyone beyond the direct purchaser of their product?
📌 Rule
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 A manufacturer owes a duty to foreseeable users of its product, not just the direct
buyer.
📌 Application
 Buick sold a defective car to a dealer, who sold it to MacPherson.

 MacPherson was injured when a wheel collapsed due to a defect.
 Buick argued no duty existed because MacPherson was not in privity with them.
 The court ruled that foreseeability, not privity, determines duty.
📌 Conclusion
 Buick was liable because it was foreseeable that a defect could cause harm to the
ultimate user.
📌 Key Takeaway
 This case established that duty extends to foreseeable users of a product, not just
contractual buyers.
Case 4: Mussivand v. David (1989)
📌 Issue
Does a person infected with a venereal disease owe a duty to warn their sexual partners’
spouses?
📌 Rule
 A person who knows they have a contagious disease owes a duty to warn sexual
partners.
 The duty may extend beyond direct partners if harm is foreseeable.
📌 Application
 David had an affair with West, who was married to Mussivand.

 David failed to warn West about his infection, and West transmitted it to her husband.
 The court ruled that David owed a duty to warn his partners.
📌 Conclusion
 Duty extends to foreseeable victims, even if there is no direct relationship.
📌 Key Takeaway
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 Foreseeability determines duty—not just direct relationships.
V. Policy Considerations in Duty

📌 From Prof. Cravens’ LectureTorts PPT Class Spring …:
 Duty is influenced by history, justice, convenience, and social values.

 Expanding duty too much could lead to excessive lawsuits.
 Limiting duty too much could leave injured victims without recourse.
Debates in Duty Law
 Should businesses owe a duty to protect customers from third-party crimes?

 Should landowners be liable for injuries to trespassers?
 Should manufacturers be strictly liable for all defects, even unforeseeable ones?
✅ Courts balance fairness, deterrence, and economic efficiency in setting duty rules.

 Privity of Contract – A direct contractual relationship between parties.
 Foreseeability – The ability to predict or anticipate harm resulting from one's actions.
 Zone of Danger – The area where harm is foreseeable.
 Unqualified Duty – The general duty to avoid foreseeable harm.
 Qualified Duty – Duty that applies in specific situations (e.g., premises liability).
📌 Example:
 A driver who runs a red light owes a duty to all other drivers in the zone of danger.
 A pharmacist who mislabels medicine has a duty to all foreseeable users, even those
they never met.
VII. Key Takeaways from Class 2

✅ Duty is a question of law and must be justified in every case.
✅ Foreseeability determines whether a duty exists.
✅ MacPherson v. Buick expanded duty beyond privity of contract.
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✅ Duty rules reflect policy considerations such as fairness and efficiency.
✅ There is no default rule—each case requires analysis.
 Understand the evolution from privity-based duty to foreseeability-based duty.

 Be ready to justify why a duty exists or does not exist in any given case.
Class 3 – Negligence: Qualified Duties of

Care (Affirmative Duties)
pp. 76-85, 87-93 (Notes 5-9)
📂 Supplemental Material: Torts PPT Class Spring 25-03.pptxTorts PPT Class Spring …
I. Introduction to Qualified Duties of Care

General vs. Qualified Duty
 General Duty: The default obligation to act reasonably to prevent foreseeable harm.
 Qualified Duty: A more limited duty that applies in specific situations.
📌 From Prof. Cravens' LectureTorts PPT Class Spring …:
 Qualified duties apply in special circumstances where courts impose an obligation to

act.
 Duty is relational—it depends on the relationship between the defendant and plaintiff.
 Foreseeability and policy considerations influence whether courts impose a duty.
✅ Most qualified duties arise when the defendant has control over the plaintiff’s safety.
II. Black Letter Law on Affirmative Duties

1. There is no general duty to rescue or warn others of danger.
2. A duty may arise in special relationships, such as employer-employee, doctor-
patient, or innkeeper-guest.
3. A defendant who creates a dangerous situation has a duty to mitigate the harm.
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4. Once a person voluntarily undertakes a rescue, they must act with reasonable care.
5. Affirmative duties are influenced by public policy and moral considerations.
 Courts are cautious about expanding affirmative duties to avoid excessive liability.
 Duty is a question of law, but breach is a question of fact.
III. Categories of Affirmative Duties

📌 Class Notes: Three Major Exceptions to No-Duty RuleTorts PPT Class Spring …:
1. Special Relationships – Defendant has a pre-existing relationship with the plaintiff.

2. Defendant-Created Peril – Defendant’s actions put the plaintiff in danger.
3. Voluntary Undertakings – Defendant started to help and created reliance.
1. Special Relationships (Taco Bell Case)
Certain relationships require a duty to warn, protect, or assist:
Examples of Special Relationships
✅ Common Carrier-Passenger – Airlines, buses, and trains must protect passengers.

✅ Innkeeper-Guest – Hotels must ensure guests’ safety.
✅ Employer-Employee – Workplaces must be safe.
✅ Doctor-Patient – Medical professionals must warn of risks.
📌 Case: Baker v. Taco BellTorts PPT Class Spring …
 Issue: Does a restaurant owe a duty to a customer who collapses on its premises?
 Holding: Yes. Businesses have an affirmative duty to provide reasonable assistance to
invitees in medical emergencies.
 Key Takeaway: Commercial establishments owe some duty to customers in distress.
✅ Special relationships create a legal duty to act, even when the defendant did not cause the
harm.
2. Defendant-Created Peril (Duty to Rescue)
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 A person who creates a dangerous situation must take reasonable steps to prevent
harm.
📌 From LectureTorts PPT Class Spring …:
 Knowledge of the risk is key—if the defendant knows (or should know) that they caused
harm, they must act.
 Even if the defendant did not act wrongfully, they still have a duty to prevent further
harm.
📌 Example:
 A driver accidentally knocks a pedestrian into a river.

 Even though the driver did not intend harm, they now have a duty to help because they
created the peril.
✅ If a defendant creates a risk, they must act to mitigate it.
3. Voluntary Undertakings
 If someone voluntarily starts helping another, they must act with reasonable care.
 Once a person begins rescuing, they cannot abandon the victim negligently.
📌 From LectureTorts PPT Class Spring …:
 The duty continues as long as the rescuer's actions create reliance.

 To end the duty, the rescuer must clearly communicate that they are stopping.
📌 Example:
 A bystander starts performing CPR on an unconscious person.

 If they stop midway, leaving the person in a worse condition, they could be liable for
negligence.
✅ Once aid is undertaken, it must be given with reasonable care.
IV. Key Cases on Affirmative Duties

Case 1: Osterlind v. Hill (1928)
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📌 Issue
Does a person have a duty to rescue someone in distress?
📌 Rule
 There is no general duty to rescue another person.
📌 Application
 The defendant rented a canoe to the plaintiff, who was intoxicated.

 The canoe overturned, and the plaintiff called for help while drowning.
 The defendant did nothing.
 The court ruled that no duty to rescue existed.
📌 Conclusion
 Moral responsibility does not always create legal responsibility.
📌 Key Takeaway
 There is no general duty to help others unless an exception applies.
✅ Osterlind reflects the traditional no-duty-to-rescue rule.
Case 2: Farwell v. Keaton (1976)
📌 Issue
Does a person have a duty to assist a companion in distress?
📌 Rule
 A duty to assist arises when there is a pre-existing relationship (e.g., companions on a

social outing).
📌 Application
 Two friends were drinking together. One was severely beaten and unconscious.
 The other left him in a car overnight, thinking he would recover.
 The injured friend later died from his injuries.
 The court ruled that the defendant had a duty to provide aid because they were
companions.
📌 Conclusion
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 Once a person voluntarily assists, they cannot abandon the victim.
📌 Key Takeaway
 Companions have a duty to help each other in emergencies.
✅ Farwell expanded the duty to rescue when there is a pre-existing relationship.
V. Policy Considerations in Affirmative Duties

 Courts must balance personal freedom against the need to protect vulnerable
individuals.
 Expanding duty too much could lead to unfair burdens on bystanders.
 Failing to impose a duty could allow needless suffering and harm.
Arguments for Expanding Duty
✅ Encourages people to help those in danger.

✅ Prevents avoidable deaths and injuries.
✅ Reflects ethical and social expectations.
Arguments Against Expanding Duty
❌ People should not be forced to act against their will.

❌ Expanding duty too far could lead to excessive liability.
❌ Good Samaritans might hesitate to help for fear of lawsuits.
✅ Most courts strike a balance—they impose duty only when relationships or conduct justify
it.

 Affirmative Duty – A legal obligation to act, rather than merely refrain from causing
harm.
 Special Relationship – A relationship that creates a legal duty to warn, protect, or assist.
 Voluntary Undertaking – When a person starts helping someone, they must act
reasonably.
 Defendant-Created Peril – A duty arises when the defendant’s actions put the plaintiff
in danger.
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 Good Samaritan Law – Laws that protect rescuers from negligence liability when
providing aid.

✅ No general duty to rescue exists, but special relationships create affirmative duties.
✅ A person who creates a danger has a duty to mitigate harm.
✅ Once aid is undertaken, it must be completed with reasonable care.
✅ Farwell v. Keaton expanded the duty to assist companions in distress.
✅ Policy concerns shape affirmative duty rules to balance individual rights and societal
safety.
III. Cardozo vs. Andrews: Competing Views of Duty

One of the most significant debates in duty law is the difference between Judge Cardozo's
majority opinion and Judge Andrews' dissent in Palsgraf v. Long Island Railroad Co. (1928).
1. Cardozo’s View (Majority) – The "Relational" View of Duty
 Duty is limited to foreseeable plaintiffs in the "zone of danger."

 If harm to the plaintiff is not foreseeable, the defendant owes no duty to that plaintiff.
 Courts should determine duty as a question of law (not left to the jury).
📌 Example: A shop owner owes a duty to customers inside the store, but not to a pedestrian
two blocks away who is injured by a falling sign.
✅ Pros
 Predictable and limits liability.

 Encourages courts to determine duty as a threshold issue before trial.
❌ Cons
 Can leave some injured parties without recourse.

 Might arbitrarily cut off liability even when harm was indirectly caused by the
defendant.
2. Andrews’ View (Dissent) – The "Universal Duty" View
 Duty is owed to society at large, not just to foreseeable plaintiffs.
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 Everyone owes a duty of care to the world—the real issue is whether liability should
be imposed based on proximate cause.
 Proximate cause (not duty) should be the focus of negligence cases.
 Juries should decide whether liability should be extended, rather than judges deciding
duty as a matter of law.
📌 Example: A careless driver who accidentally knocks over a ladder, which in turn hits
someone a block away, could be liable under Andrews' view if the chain of events is
sufficiently connected.
✅ Pros
 Ensures more injured parties can seek redress.

 Provides jury discretion to determine fairness of liability.
❌ Cons
 Expands liability significantly—almost unlimited duty.

 Could lead to uncertain and inconsistent rulings.
Class 4 – Qualified Duties of Care (Premises

Liability) & Introduction to Breach
pp. 115-128, 149-155
📂 Supplemental Material: Torts PPT Class Spring 25-04 (in class).pptxTorts PPT Class Spring
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I. Introduction to Premises Liability

What is Premises Liability?
Premises liability is a subset of negligence law that holds landowners and occupiers
responsible for injuries occurring on their property.
 Premises liability focuses on dangerous conditions rather than dangerous activities.

 A person must have control over the premises (ownership is not required).
 Different rules apply to different types of entrants (trespassers, licensees, invitees).
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✅ Premises liability is about the condition of the property, not the activities conducted on it.
II. Black Letter Law on Premises Liability

1. Landowners owe different duties based on the status of the entrant.
2. Trespassers, licensees, and invitees receive different levels of protection.
3. Modern courts increasingly adopt a general "reasonable care" standard.
4. Premises liability applies only to dangerous conditions, not dangerous activities.
5. Attractive nuisance doctrine protects child trespassers.
📌 Class Notes on Common Law Categories of EntrantsTorts PPT Class Spring …:
 Trespassers – No duty except to avoid willful harm.

 Licensees – Duty to warn of known dangers.
 Invitees – Duty to keep the premises safe.
III. Classification of Entrants and Duties Owed

 Premises liability rules were historically based on categories of entrants.

 Modern courts are shifting toward a general reasonable care standard.
1. Trespassers (Lowest Duty)
Definition:
A trespasser enters land without permission.
Duty Owed to Trespassers:
 No duty to make property safe.

 Cannot intentionally harm trespassers.
 Exceptions:
✅ Known trespassers – Duty to warn of hidden dangers.
✅ Child trespassers (Attractive Nuisance Doctrine) – Duty to prevent foreseeable
harm.
📌 Example:
 A homeowner does not have to warn a burglar about a hole in the yard.
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 But a homeowner must fence off a swimming pool if it is likely to attract children.
✅ Trespassers get the least protection because they are unlawfully on the land.
2. Licensees (Moderate Duty)
Definition:
A licensee is a social guest or person on the property with permission but for their own
purpose.
Duty Owed to Licensees:
 Duty to warn of known dangers.

 No duty to inspect or fix hazards.
📌 Example:
 A homeowner must warn guests about a loose railing, but does not have to fix it.
✅ Licensees get some protection but must take reasonable precautions.
3. Invitees (Highest Duty)
Definition:
An invitee enters with permission for a business or public purpose, such as a customer in a
store.
Duty Owed to Invitees:
 Duty to inspect for dangers.

 Duty to fix hazards and keep premises safe.
 Duty to warn of non-obvious risks.
📌 Example:
 A grocery store must clean up spills to prevent slip-and-fall accidents.
✅ Invitees receive the highest protection because they benefit the landowner.
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4. The Attractive Nuisance Doctrine (For Child Trespassers)
 Landowners owe a duty of care to child trespassers if:

1. The landowner knows children are likely to enter the property.
2. There is a dangerous condition that could harm them.
3. The risk is not obvious to a child.
📌 Example:
 A property owner must secure an abandoned well if children are likely to explore the
area.
✅ This doctrine protects children, who may not understand risks.
IV. Key Cases on Premises Liability

Case 1: Rowland v. Christian (1968)
📌 Issue
Should landowners owe a general duty of care to all entrants, regardless of classification?
📌 Rule
 California abolished the Invitee-Licensee-Trespasser distinction and applied a

general duty of reasonable care to all lawful entrants.
📌 Application
 The plaintiff was a social guest who injured his hand on a broken faucet.
 The homeowner knew about the hazard but failed to warn.
 The court ruled that the homeowner should have warned of the danger.
📌 Conclusion
 California moved toward a general duty standard for all entrants.
📌 Key Takeaway
 Modern courts are shifting away from rigid entrant classifications.
✅ Rowland v. Christian influenced many states to adopt a general duty standard.
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Case 2: Demag v. Better Power Equipment, Inc.
📌 Issue
Does a landowner owe the same duty of care to all lawful entrants, regardless of their
classification?
📌 Rule
 Some states reject strict entrant classifications and instead apply a general duty of
reasonable care.
📌 Application
 The lower court classified the plaintiff as a licensee, limiting the duty owed.
 The high court ruled that landowners should owe a duty of reasonable care to all
lawful entrants.
📌 Conclusion
 The case was remanded to apply the new standard.
📌 Key Takeaway
 Premises liability law is evolving toward a more uniform standard.
✅ Many states are eliminating rigid entrant classifications.
V. Introduction to Breach of Duty

Once a duty is established, the next question is whether the defendant breached that duty.
Definition of Breach
A breach occurs when a defendant fails to meet the standard of care required under the
circumstances.
📌 Class Notes on Distinguishing Duty & BreachTorts PPT Class Spring …:
 Duty is a question of law (for the court to decide).

 Breach is a question of fact (for the jury to decide).
 Juries determine whether the defendant’s conduct was unreasonable.
✅ Duty is about whether an obligation exists; breach is about whether it was violated.
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VI. Policy Considerations in Premises Liability
 Courts must balance landowner rights with visitor safety.

 Expanding liability could discourage property ownership.
 Limiting liability could leave injured visitors without recourse.
Arguments for Expanding Duty
✅ Encourages landowners to maintain safe premises.

✅ Protects visitors from preventable injuries.
✅ Reflects modern social expectations.
Arguments Against Expanding Duty
❌ Burdens property owners with excessive liability.

❌ Encourages frivolous lawsuits.
❌ Individuals should take personal responsibility for their safety.
✅ Most courts try to balance fairness with economic efficiency.

✅ Landowners owe different duties based on the status of the entrant.
✅ Some states (e.g., California) apply a general duty of reasonable care instead of strict
categories.
✅ A breach occurs when a defendant fails to act as a reasonable person would.
✅ Juries decide breach, while courts decide duty.
✅ Policy concerns shape premises liability rules to balance safety and property rights.
 Understand the shift from rigid categories to a general duty standard.

 Be ready to analyze whether a landowner acted reasonably under the
circumstances.
Class 5 – The Breach Element & The

Reasonable Person Standard
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pp. 160-165, 171-184
I. Introduction to Breach of Duty

Once a duty of care is established, the plaintiff must prove that the defendant breached that
duty by failing to act as a reasonable person would under the circumstances.
 Breach is fact-intensive – courts and juries must analyze specific conduct.

 The breach standard must align with the duty standard – you cannot have a broad
duty with a narrow breach or vice versa.
 Context matters – the surrounding circumstances influence what is considered
reasonable.
✅ Breach is where most negligence cases are decided—plaintiffs must prove that the
defendant’s actions were unreasonable.
II. Black Letter Law on Breach

1. A breach occurs when the defendant fails to act as a reasonable person would under
the circumstances.
2. The reasonable person standard is objective – it does not consider the defendant’s
personal limitations (except in rare cases).
3. The Hand Formula (B < P × L) is a cost-benefit test to determine breach.
4. Custom and industry standards may inform the standard of care but are not
conclusive.
5. Professionals are held to a heightened standard based on their expertise.
📌 Class Notes on the Jury’s RoleTorts PPT Class Spring …:
 Juries decide breach based on their own experience and judgment.

 Jury instructions define what constitutes “ordinary care” in a given case.
 Breach cases often involve disputes over facts and foreseeability.
✅ Breach is usually decided by juries, unless it is so clear that a judge can decide as a
matter of law.
22
III. The Reasonable Person Standard
 The reasonable person standard is an objective measure of how a prudent person
would act in similar circumstances.
 Courts ask:
Would a reasonable person have acted differently to prevent harm?
📌 Example:
 A driver who texts while driving breaches their duty of care because a reasonable
person would not engage in that risky behavior.
✅ If the defendant’s actions fell below what a reasonable person would do, breach is
established.
IV. Cost-Benefit Analysis in Breach (Hand Formula)

Judge Learned Hand introduced an economic approach to breach in United States v. Carroll
Towing Co. (1947).
The Hand Formula for Negligence
B<P×L
(Burden of Precaution < Probability of Harm × Severity of Loss)
 B = Burden (cost of taking safety measures).

 P = Probability of harm occurring.
 L = Severity of the potential loss.
📌 Example:
 If a store could have easily cleaned up a spill (low burden) but chose not to, and a
customer slips and breaks a leg, then the failure to clean up is negligence.
✅ If B < P × L, the defendant is negligent.

❌ If B > P × L, the defendant is not negligent.
 Judge Hand did not intend the formula to be strictly mathematical.

 It is a framework to evaluate whether precautions were reasonable.
23
V. Exceptions to the Reasonable Person Standard
Although the reasonable person standard is objective, courts recognize limited exceptions:
1. Physical Disabilities
 A person with a physical disability (e.g., blindness) is held to the standard of a

reasonable person with the same disability.
📌 Example: A blind pedestrian is not negligent for failing to notice a hazard that only a
sighted person could see.
2. Children
 Children are held to a standard of a reasonable child of the same age, experience,
and intelligence.
 Exception: If a child is engaging in an adult activity (e.g., driving a car), they are held to
the adult standard of care.
📌 Example: A 10-year-old riding a bicycle is not judged like an adult, but a 16-year-
old driving a car is.
3. Mental Disabilities and Voluntary Intoxication
 Mental disabilities do not lower the standard of care—defendants are still held to the
reasonable person standard.
 Voluntary intoxication is not a defense to negligence.
📌 Example: A person with schizophrenia who runs a red light is still judged by the
reasonable person standard, not their mental state.
✅ Only physical disabilities adjust the standard—mental conditions do not.
VI. Industry Custom & Professional Standards

 Customary practices in an industry may provide evidence of reasonable care, but they
do not establish a legal standard.
 Professionals (e.g., doctors, lawyers) are held to a heightened standard based on what
a reasonable professional in their field would do.
📌 Example:
 If most companies use a safety guard on machinery, failing to do so may be evidence

of breach.
24
 A doctor’s standard of care is determined by medical experts, not by the general
reasonable person standard.
✅ Industry custom is persuasive but not conclusive in determining breach.
VII. Key Cases on Breach & The Reasonable Person

Standard
Case 1: Vaughan v. Menlove (1837)
📌 Issue
Is negligence determined by an objective standard (reasonable person) or a subjective standard
(defendant’s personal judgment)?
📌 Rule
 Negligence is judged by an objective standard, not the defendant’s personal judgment

or best efforts.
📌 Application
 The defendant built a haystack improperly, despite warnings that it might catch fire.
 The haystack ignited, causing damage to a neighbor’s property.
 The defendant argued that he had done his best to avoid harm.
 The court ruled that his best efforts were irrelevant—he was still held to the reasonable
person standard.
📌 Conclusion
 The defendant was liable because a reasonable person would have foreseen the fire
risk and acted differently.
📌 Key Takeaway
 Subjective excuses are irrelevant—negligence is based on objective reasonableness.
✅ Vaughan v. Menlove established the modern reasonable person standard.
Case 2: Martin v. Evans (1998)
25
📌 Issue
Who decides whether a defendant breached their duty—the judge or the jury?
📌 Rule
 Juries determine breach in most cases unless the facts are clear enough for a judge
to decide.
📌 Application
 The defendant backed up a truck, hitting the plaintiff.

 The jury found no negligence, but the trial judge overturned the verdict.
 The appellate court ruled that breach is a fact question for the jury, not the judge.
📌 Conclusion
 The jury’s decision was reinstated—breach is a question of fact.
📌 Key Takeaway
 Judges should only decide breach in extreme cases; otherwise, it is for the jury.
✅ Martin v. Evans reaffirmed that breach is usually a jury question.

✅ Breach occurs when conduct falls below the reasonable person standard.
✅ The Hand Formula (B < P × L) provides a cost-benefit approach to negligence.
✅ Customary practices and professional standards provide guidance but are not conclusive.
✅ Some groups (children, disabled individuals) have modified standards of care.
✅ Courts apply an objective standard, even if the defendant did their best.
Class 6 – The Reasonable Person Standard:

Industry & Professionals
pp. 184-198, 205-212
26
I. Introduction to Industry & Professional Standards
While the reasonable person standard applies to ordinary negligence cases, professionals and
those in specialized industries are held to a heightened standard of care based on industry
customs and professional expertise.
 Professionals must act with the level of care and skill expected in their field.
 Courts defer to industry standards, but compliance with industry customs is not
always a defense.
 Expert testimony is usually required to determine breach in professional negligence
cases.
✅ Professional negligence (malpractice) is judged by the standards of the profession, not by

the general reasonable person test.
II. Black Letter Law on Professional & Industry Standards

1. Professionals are held to the standard of care expected of a reasonable member of
their profession.
2. Industry customs are persuasive but not conclusive in determining negligence.
3. Expert testimony is usually required to establish a breach of duty in professional
negligence cases.
4. Medical professionals follow a national standard, while some professions may follow
regional standards.
5. Failure to meet minimum professional standards may constitute negligence per se.
 Juries do not determine professional standards—experts do.

 Compliance with industry standards may be a defense but is not absolute.
✅ Professionals are judged against their peers, not against the general public.
III. The Professional Standard of Care

A professional’s duty of care is not based on the general reasonable person standard but
rather on what a reasonable professional in that field would do.
📌 Key Fields with Specialized Standards
27
 Medical Malpractice – Physicians, nurses, and hospitals.
 Legal Malpractice – Lawyers and law firms.
 Architects & Engineers – Duty to design and construct safely.
 Accountants & Financial Advisors – Duty to follow financial regulations.
📌 Example:
 A doctor who fails to diagnose an obvious medical condition is not judged by the
"reasonable person" standard, but by the reasonable doctor standard.
✅ Professionals are judged based on the standards of their peers, not the general public.
IV. Industry Customs: Are They Conclusive?

Courts consider industry standards when evaluating negligence, but customs are not
automatically conclusive.
1. Industry Custom as Evidence
 If a professional follows industry customs, they may avoid liability.

 If they deviate from industry standards, it may indicate negligence.
📌 Example:
 If 90% of hospitals use a specific surgical technique, a hospital that does not use it may
be considered negligent if harm results.
2. Industry Custom is Not a Complete Defense
 Customs are persuasive but not absolute—a whole industry could be practicing
unsafely.
 Compliance does not always mean reasonable care.
📌 Example:
 In The T.J. Hooper (1932), the shipping industry did not require radio receivers on
tugboats.
 The court ruled that even though it was not an industry standard, the boats should
have had radios because it was a reasonable precaution.
✅ Key Takeaway: Compliance with industry standards is persuasive but not a complete
defense.
28
V. Key Cases on Professional & Industry Standards
Case 1: The T.J. Hooper (1932)
📌 Issue
Does compliance with industry standards automatically protect a defendant from liability?
📌 Rule
 Industry customs are not always conclusive—a defendant may still be negligent even if
they followed industry standards.
📌 Application
 Tugboats did not have radio receivers, and as a result, they failed to receive weather
warnings.
 The industry did not require radios at the time.
 However, the court found that a reasonable tugboat operator should have used them,
even though it was not industry practice.
📌 Conclusion
 The court ruled that compliance with industry standards does not always excuse
negligence.
📌 Key Takeaway
 Industries can lag behind reasonable safety measures, so courts do not always defer
to customs.
Case 2: Helling v. Carey (1974)
📌 Issue
Is a doctor liable for failing to perform a simple, low-cost test, even if it is not standard practice?
📌 Rule
 Doctors may be liable for negligence if they fail to take reasonable precautions, even
if the procedure is not customary in their profession.
📌 Application
29
 A patient suffered glaucoma-related blindness because the doctor did not perform an
early intraocular pressure test.
 The test was not standard for patients under 40.
 The court ruled that even though most doctors did not perform the test, a reasonable
doctor should have done so because the cost was low and the risk was severe.
📌 Conclusion
 The doctor was liable for failing to test the patient despite following professional
customs.
📌 Key Takeaway
 Doctors must consider whether precautions are reasonable, not just whether they
are standard.
Case 3: Brune v. Belinkoff (1968)
📌 Issue
Should doctors be judged by a national standard or a local standard of care?
📌 Rule
 Medical professionals are held to a national standard, not just local practices.
📌 Application
 A doctor gave excessive anesthesia, causing injury.

 The doctor argued that this dosage was standard practice in his town.
 The court rejected the locality rule, holding that medical care should be judged by
national standards.
📌 Conclusion
 The doctor was liable because his practice did not meet national medical standards.
📌 Key Takeaway
 Medical professionals must meet national, not just local, standards.
VI. Expert Testimony in Professional Negligence Cases
30
Because laypeople cannot evaluate professional conduct, courts require expert witnesses to
establish whether a professional breached their duty.
Expert Testimony is Required When
1. The negligence involves specialized knowledge (e.g., medical malpractice).

2. Juries would not understand the breach without expert input.
📌 Example:
 A surgeon’s error must be proven by another doctor who can explain why the surgery
was performed incorrectly.
✅ Exception:
 If the breach is obvious (e.g., a surgeon leaves a tool inside a patient), expert testimony is
not needed.
VII. Policy Considerations in Professional & Industry

Standards
Courts must balance patient and consumer protection with professional discretion.
Arguments for Strict Standards
✅ Encourages professionals to stay up to date.

✅ Protects clients and patients from negligence.
✅ Ensures industries evolve toward safer practices.
Arguments Against Strict Standards
❌ Professionals need room for judgment in complex situations.

❌ Constantly changing standards can make liability unpredictable.
❌ Too much reliance on industry custom can lead to bad norms being upheld.

✅ Professionals are held to the standard of a reasonable professional in their field.
✅ Industry standards are persuasive but not conclusive in determining negligence.
✅ Medical malpractice follows a national standard, not just local practices.
31
✅ Expert testimony is usually required in professional negligence cases.
✅ The Hand Formula still applies, but professional discretion is considered.
Class 7 – Cost-Benefit Analysis & Res Ipsa

Loquitur
pp. 217-237
I. Introduction to Cost-Benefit Analysis & Res Ipsa Loquitur

This class covers two key breach analysis tools:
1. Cost-Benefit Analysis (Hand Formula) – A method for determining whether failing to

take precautions was unreasonable.
2. Res Ipsa Loquitur – A doctrine that allows negligence to be inferred when direct
evidence is lacking.
 Juries determine breach based on instructions and their own reasoning.

 Hand Formula is used as an analytical tool, not a rigid mathematical test.
 Res Ipsa Loquitur allows an inference of negligence when an accident "speaks for
itself."
✅ These tools help courts and juries evaluate whether a defendant’s conduct was negligent.
II. Black Letter Law on Cost-Benefit Analysis & Res Ipsa

Loquitur
1. A defendant is negligent if the burden (B) of taking precautions is less than the
probability (P) and severity of harm (L) (B < P × L).
2. Cost-benefit analysis is commonly used in corporate and government liability cases.
3. Res Ipsa Loquitur applies when the injury would not normally occur absent
negligence, shifting the burden of proof to the defendant.
4. Res Ipsa Loquitur requires the defendant to have exclusive control over the
instrumentality of harm.
5. Res Ipsa Loquitur allows the jury to infer negligence even without direct proof.
32
📌 Class Notes on Breach AnalysisTorts PPT Class Spring …:
 Cost-benefit analysis is useful for businesses and government entities.

 Res Ipsa Loquitur applies when there is no direct evidence of how the harm
occurred.
✅ These tools help courts determine breach when direct evidence is unclear.
III. Cost-Benefit Analysis in Breach Determination

Judge Learned Hand’s economic model of negligence helps courts decide if a defendant
breached their duty.
The Hand Formula for Negligence
B<P×L
(Burden of Precaution < Probability of Harm × Severity of Loss)
 B = Burden (cost of taking safety measures).

 P = Probability of harm occurring.
 L = Severity of the potential loss.
📌 Example:
 If a store could have easily cleaned up a spill (low burden) but chose not to, and a
customer slips and breaks a leg, then the failure to clean up is negligence.
✅ If B < P × L, the defendant is negligent.

❌ If B > P × L, the defendant is not negligent.
 Judge Hand did not intend the formula to be strictly mathematical.

 It is a framework to evaluate whether precautions were reasonable.
✅ Cost-benefit analysis is a tool to determine reasonableness, not a rigid rule.
IV. Key Cases on Cost-Benefit Analysis & Res Ipsa Loquitur

Case 1: United States v. Carroll Towing Co. (1947)
33
📌 Issue
Did failing to have an attendant on board a barge constitute negligence under cost-benefit
analysis?
📌 Rule
 Negligence occurs when the burden of prevention is less than the probability and
severity of harm (B < P × L).
📌 Application
 A barge broke loose and sank because no crew member was present to check on it.
 The court considered:
o B (Burden of prevention) – Posting a crew member on board.
o P (Probability of harm) – Moderate risk of breakaway.
o L (Severity of harm) – The loss of a valuable barge and cargo.
 Since B < P × L, failing to have an attendant was unreasonable and constituted a breach
of duty.
📌 Conclusion
 The defendant was liable for negligence because the burden of preventing the
accident was less than the potential harm.
📌 Key Takeaway
 Courts use the Hand Formula to assess whether precautions were reasonable.
✅ Carroll Towing established cost-benefit analysis as a method for determining breach.
V. Res Ipsa Loquitur: The Doctrine of "The Thing Speaks

for Itself"
When direct evidence of negligence is missing, courts may apply Res Ipsa Loquitur to infer
negligence.
Definition of Res Ipsa Loquitur
Res Ipsa Loquitur ("the thing speaks for itself") is a doctrine that allows a jury to infer
negligence when an accident would not normally occur absent negligence.
Elements of Res Ipsa Loquitur
34
1. The accident is of a type that ordinarily does not occur without negligence.
2. The defendant had exclusive control over the instrumentality that caused harm.
3. The plaintiff did not contribute to the harm.
📌 Example: If a surgical instrument is left inside a patient, the court assumes negligence,
even without direct proof of who was responsible.
Case 2: Byrne v. Boadle (1863)
📌 Issue
Can negligence be inferred when there is no direct evidence of wrongful conduct?
📌 Rule
 Res Ipsa Loquitur applies when an accident is of a type that does not happen
without negligence.
📌 Application
 A barrel of flour fell from a warehouse, striking the plaintiff.

 There was no direct evidence of how it fell.
 The court ruled that falling barrels do not happen without negligence, so the
defendant was presumed negligent.
📌 Conclusion
 The burden shifted to the defendant to prove they were not negligent.
📌 Key Takeaway
 Res Ipsa Loquitur shifts the burden of proof when an accident strongly suggests
negligence.
✅ Byrne v. Boadle established Res Ipsa Loquitur as a method for proving negligence
without direct evidence.
Case 3: McDougald v. Perry (1998)
📌 Issue
Does Res Ipsa Loquitur apply when an accident (a tire detaching from a truck) strongly suggests
negligence?
35
📌 Rule
 If an accident would not ordinarily occur without negligence, Res Ipsa Loquitur
applies.
📌 Application
 A spare tire detached from a truck and hit a car.

 The trucking company could not explain how the tire came loose.
 The court ruled that tires do not normally detach without negligence, so Res Ipsa
Loquitur applied.
📌 Conclusion
 The jury was allowed to infer negligence, shifting the burden to the trucking company.
📌 Key Takeaway
 Res Ipsa Loquitur is common in mechanical failures where the cause is unknown.
✅ McDougald v. Perry reinforced Res Ipsa Loquitur in product and mechanical failure
cases.
VI. Key Takeaways from Class 7

✅ Cost-benefit analysis (B < P × L) determines whether failing to take precautions was
negligent.
✅ Res Ipsa Loquitur allows courts to infer negligence when direct evidence is missing.
✅ Res Ipsa Loquitur applies when (1) the accident does not happen without negligence, (2)
the defendant had exclusive control, and (3) the plaintiff was not responsible.
✅ Courts use Res Ipsa Loquitur in cases involving mechanical failures, hospital negligence,
and falling objects.
✅ Res Ipsa Loquitur shifts the burden to the defendant to explain what happened.
Class 8 – Review of Duty & Breach;

Introduction to Causation
pp. 245-258
36
I. Review of Duty & Breach
Before moving to causation, this class reviews the first two elements of negligence:
1. Duty – Did the defendant owe a legal duty to the plaintiff?

2. Breach – Did the defendant fail to meet the standard of care?
 Duty is a question of law for the court to decide.

 Breach is a question of fact, usually for the jury.
 Circumstances influence breach—courts consider context, foreseeability, and costs of
prevention.
✅ Negligence cases are often won or lost on breach and causation.
II. Black Letter Law on Duty & Breach

1. Duty requires a legal obligation to act reasonably toward others.
2. Foreseeability determines whether a duty exists.
3. Breach occurs when a defendant’s actions fall below the reasonable person
standard.
4. The Hand Formula (B < P × L) is used to determine breach.
5. Juries typically decide whether a defendant’s actions were unreasonable.
📌 Class Notes on Distinguishing Duty & BreachTorts PPT Class Spring …:
 Duty focuses on whether an obligation exists.

 Breach focuses on whether the duty was violated.
 Duty is based on foreseeability; breach is based on reasonableness.
✅ Once duty and breach are established, the next step is causation.
III. Introduction to Causation in Negligence

Causation is the link between the defendant’s breach and the plaintiff’s injury. Even if a duty
existed and was breached, there is no liability unless the breach caused the harm.
Causation is divided into two types:
37
1. Cause-in-Fact (Actual Causation) – The harm would not have occurred but for the
defendant’s breach.
2. Proximate Cause (Legal Causation) – The harm must be a foreseeable consequence of
the breach.
📌 Example:
 If a driver runs a red light and hits a pedestrian, the running of the red light is both
cause-in-fact and proximate cause of the injury.
IV. Black Letter Law on Causation

1. Cause-in-Fact is established using the "But-For" test or the "Substantial Factor"
test.
2. The "But-For" test asks whether the harm would have occurred absent the
defendant’s conduct.
3. The "Substantial Factor" test applies when multiple causes contribute to the harm.
4. Proximate Cause limits liability to harms that are foreseeable consequences of the
defendant’s actions.
5. Intervening causes may break the chain of causation if they are independent and
unforeseeable.
 Causation is essential—without it, there is no liability.

 The burden of proof is on the plaintiff to establish causation by a preponderance of
evidence.
✅ Causation connects the defendant’s conduct to the plaintiff’s harm.
V. Cause-in-Fact (Actual Causation)

1. The "But-For" Test
 The most common test for actual causation is:
But for the defendant’s conduct, would the harm have occurred?
📌 Example:
38
 If a doctor negligently fails to diagnose a patient’s cancer, but the patient would have
died anyway, the doctor's negligence is not the cause-in-fact of death.
✅ Key Takeaway: If the injury would have happened anyway, there is no actual causation.
2. The "Substantial Factor" Test
 Used when multiple causes contribute to the harm.

 A defendant’s conduct is a cause-in-fact if it was a substantial factor in producing the
harm.
📌 Example:
 Two negligent drivers crash into the same car, causing severe injuries.
 Even if either driver alone could have caused the harm, both are substantial factors
and can be held liable.
✅ Key Takeaway: If multiple negligent acts combine to cause harm, each can be a substantial
factor in actual causation.
VI. Key Cases on Cause-in-Fact

Case 1: Muckler v. Buchl (1967)
📌 Issue
Was poor lighting a cause-in-fact of the plaintiff’s fall?
📌 Rule
 Plaintiffs must prove by a preponderance of evidence that the defendant’s

negligence caused the injury.
📌 Application
 A woman fell down a dimly lit staircase.

 The defendant argued that she might have fallen regardless of the poor lighting.
 The court found that the lack of lighting was more likely than not a cause of the fall.
📌 Conclusion
39
 Cause-in-fact was established because the fall was more likely with the poor lighting
than without it.
📌 Key Takeaway
 The plaintiff must prove that the defendant’s breach increased the risk of harm.
✅ Muckler v. Buchl shows how circumstantial evidence can establish causation.
Case 2: Butts v. Weisz (2011)
📌 Issue
Can causation be established when the plaintiff cannot prove how an injury occurred?
📌 Rule
 Causation must be established by more than speculation.
📌 Application
 A guest fell down an unmarked step inside a home.

 The plaintiff could not prove whether he tripped due to the step’s design or another
reason.
 The court ruled that causation was not proven because it was speculative.
📌 Conclusion
 The plaintiff lost because there was no direct link between the alleged breach and
the injury.
📌 Key Takeaway
 Plaintiffs must provide sufficient evidence to prove causation—it cannot be based on

speculation.
✅ Butts v. Weisz reinforces that causation must be supported by evidence.
VII. Policy Considerations in Causation

40
 Courts must balance fairness with limiting excessive liability.
 Expanding causation rules could lead to endless liability for defendants.
 Restricting causation too much could leave injured plaintiffs without a remedy.
Arguments for Strict Causation Rules
✅ Prevents over-expanding liability.

✅ Ensures defendants are only liable for foreseeable harms.
✅ Provides clear guidelines for businesses and professionals.
Arguments for Relaxed Causation Rules
✅ Protects plaintiffs from being denied compensation when causation is hard to prove.
✅ Holds multiple negligent parties accountable.
✅ Encourages safer business and industry practices.
✅ Most courts strike a balance—requiring sufficient proof without allowing speculative

claims.

✅ Causation is divided into Actual Causation (Cause-in-Fact) and Proximate Cause (Legal
Causation).
✅ The "But-For" Test asks whether the harm would have occurred without the defendant’s
actions.
✅ The "Substantial Factor" Test is used for multiple contributing causes.
✅ Plaintiffs must prove causation by a preponderance of the evidence.
✅ Policy concerns influence how courts apply causation rules.
 Understand the difference between actual and proximate causation.

 Be prepared to analyze multiple causes in negligence cases.
Class 9 – Multiple Choice Quiz &

Introduction to Actual Cause
pp. 273-277, 284-292
📂 Supplemental Material: Torts PPT Class Spring 25-09 (in class).pptxTorts PPT Class Spring
…
41
I. Multiple Choice Quiz Recap
Before delving into actual causation, this class includes a quiz review covering material up to
Class 8. Based on the Torts PPT Class Spring 25-09, here are some key takeaways from the
quiz review:
 Most students performed well on basic duty and breach questions.

 The most challenging questions involved causation concepts.
 Students should focus on understanding the distinction between actual and
proximate cause.
General Observations on Quiz Performance
 Mean score: 12.4/15

 High Score: 15/15
 Low Score: 8/15
 Most common scores: 14 or 15
📌 Key Topics That Were Emphasized in Review:
 Duty is a question of law, while breach and causation are fact-based.

 Mental illness is not a defense in negligence unless it is sudden and unforeseen.
 Children are judged by a standard appropriate for their age, unless engaged in an
adult activity.
 "But-for" causation requires proof that the harm would not have occurred absent
the defendant’s conduct.
✅ Students should refine their ability to analyze causation scenarios.
II. Introduction to Causation in Negligence

Causation is the third element of negligence, following duty and breach. Even if a defendant
breached their duty, they are not liable unless the breach caused the plaintiff’s harm.
Causation is divided into two types:
1. Cause-in-Fact (Actual Causation) – The harm would not have occurred but for the
defendant’s breach.
42
2. Proximate Cause (Legal Causation) – The harm must be a foreseeable consequence of
the breach.
 Both actual and proximate cause are required to establish negligence.

 Plaintiffs must provide evidence to link the defendant’s breach to the injury.
✅ Without causation, there is no liability.
III. Black Letter Law on Actual Cause

1. Cause-in-Fact is established using the "But-For" test or the "Substantial Factor"
test.
2. The "But-For" test asks whether the harm would have occurred absent the
defendant’s conduct.
3. The "Substantial Factor" test applies when multiple causes contribute to the harm.
4. Plaintiffs must prove causation by a preponderance of the evidence.
5. Causation must be based on evidence, not speculation.
📌 From Class NotesTorts PPT Class Spring …:
 Direct evidence is ideal, but circumstantial evidence can suffice.

 Statistical evidence may support causation, but it must be reliable.
✅ Causation must be proven with sufficient evidence—it cannot be assumed.
IV. Cause-in-Fact (Actual Causation)

1. The "But-For" Test
 The most common test for actual causation is:
But for the defendant’s conduct, would the harm have occurred?
📌 Example:
 If a doctor negligently fails to diagnose a patient’s cancer, but the patient would have
died anyway, the doctor's negligence is not the cause-in-fact of death.
✅ Key Takeaway: If the injury would have happened anyway, there is no actual causation.
43
 Used when multiple causes contribute to the harm.

 A defendant’s conduct is a cause-in-fact if it was a substantial factor in producing the
harm.
📌 Example:
 Two negligent drivers crash into the same car, causing severe injuries.
 Even if either driver alone could have caused the harm, both are substantial factors
and can be held liable.
✅ Key Takeaway: If multiple negligent acts combine to cause harm, each can be a substantial
factor in actual causation.
V. Key Cases on Actual Cause

Case 1: Falcon v. Memorial Hospital (1990)
📌 Issue
Can a plaintiff recover damages for loss of chance when a doctor’s negligence reduces the
likelihood of survival?
📌 Rule
 The loss of a significant chance of survival may be a compensable injury.
📌 Application
 A patient died after a medical team failed to insert an IV, reducing her survival
chances by 37.5%.
 The court ruled that even though survival was not guaranteed, the failure to act
deprived her of a substantial chance.
📌 Conclusion
 Loss of chance was recognized as a valid claim.
📌 Key Takeaway
44
 Courts may allow recovery for loss of a significant survival chance, even if survival
was uncertain.
✅ Falcon v. Memorial Hospital established the "loss of chance" doctrine in medical

malpractice cases.
Case 2: Summers v. Tice (1948)
📌 Issue
How is causation determined when two negligent defendants caused harm, but it is unclear
whose actions were responsible?
📌 Rule
 When multiple negligent parties create a risk of harm, the burden shifts to the
defendants to prove they were not responsible.
📌 Application
 Two hunters negligently fired at the same time, hitting the plaintiff.
 It was impossible to determine which hunter’s bullet caused the injury.
 The court ruled that both were responsible unless they could prove otherwise.
📌 Conclusion
 When two negligent actors contribute to harm, both may be held liable unless one
can prove they were not the cause.
📌 Key Takeaway
 The burden shifts to multiple defendants when their negligence combined to cause
harm.
✅ Summers v. Tice introduced alternative causation in negligence law.
Case 3: Sindell v. Abbott Laboratories (1980)
📌 Issue
Can a company be held liable when a harmful product was manufactured by multiple defendants,
but the exact manufacturer is unknown?
📌 Rule
45
 Market share liability applies when multiple manufacturers produced a harmful
product, and the specific manufacturer cannot be identified.
📌 Application
 The plaintiff developed cancer from a pregnancy drug made by multiple companies.
 The court held that each company would be liable based on their market share.
📌 Conclusion
 Each defendant was liable for the percentage of damages equivalent to their market
share.
📌 Key Takeaway
 Market share liability applies in product liability cases when identification of the
exact tortfeasor is impossible.
✅ Sindell v. Abbott Laboratories expanded causation principles in mass tort cases.
VI. Policy Considerations in Causation

 Courts must balance fairness with limiting excessive liability.

 Expanding causation rules could lead to endless liability for defendants.
 Restricting causation too much could leave injured plaintiffs without a remedy.
Arguments for Strict Causation Rules
✅ Prevents over-expanding liability.

✅ Ensures defendants are only liable for foreseeable harms.
✅ Provides clear guidelines for businesses and professionals.
Arguments for Relaxed Causation Rules
✅ Protects plaintiffs from being denied compensation when causation is hard to prove.
✅ Holds multiple negligent parties accountable.
✅ Encourages safer business and industry practices.
✅ Most courts strike a balance—requiring sufficient proof without allowing speculative

claims.
46
✅ Causation is divided into Actual Causation (Cause-in-Fact) and Proximate Cause (Legal
Causation).
✅ The "But-For" Test asks whether the harm would have occurred without the defendant’s
actions.
✅ The "Substantial Factor" Test is used for multiple contributing causes.
✅ Plaintiffs must prove causation by a preponderance of the evidence.
✅ Alternative causation and market share liability apply in specific cases.
Class 10 – Actual Cause (Multiple Causation)

pp. 292-317
I. Introduction to Multiple Causation in Negligence

Not all negligence cases involve a single cause of harm. Many cases involve multiple
defendants or multiple contributing factors.
 The "But-For" test works best for single-defendant cases but struggles in multi-
defendant cases.
 When multiple parties contribute to an injury, courts may use alternative causation
tests.
 Juries often decide causation based on expert testimony and factual disputes.
✅ When multiple factors contribute to an injury, courts may apply different causation
rules.
II. Black Letter Law on Multiple Causation

1. The "But-For" test may not work when multiple causes exist.
2. Alternative causation tests include:
o Substantial Factor Test
o Alternative Liability (Burden-Shifting)
47
o Market Share Liability
o Concert of Action
3. If multiple defendants are negligent but only one caused the harm, the burden may
shift to the defendants to prove who was responsible.
4. Multiple sufficient causes can each be independently liable.
5. Causation must be proven by a preponderance of the evidence.
 Plaintiffs must prove that the defendant’s conduct was a significant factor in
causing harm.
 Causation in multi-defendant cases often involves apportioning liability.
✅ Multiple causation cases require courts to determine responsibility among multiple

defendants.
III. Alternative Causation Theories

When the "But-For" Test is inadequate, courts use other causation doctrines:
 Used when two or more causes independently could have caused the harm.
 A defendant is liable if their negligence was a substantial factor in bringing about the
injury.
📌 Example:
 Two separate fires merge and burn down a house.

 Even if either fire alone could have caused the damage, both are substantial factors in
the loss.
✅ If multiple causes each would have caused the harm independently, both are liable.
2. Alternative Liability (Burden-Shifting)
 When multiple negligent defendants acted together, but only one actually caused the
harm, courts may shift the burden to the defendants to disprove their liability.
📌 Example:
48
 Two hunters shoot at the same time, hitting the plaintiff.
 The plaintiff cannot prove which bullet caused the injury.
 The burden shifts to the defendants to prove that they were not responsible.
✅ If multiple defendants are negligent but only one caused harm, they must disprove their
liability.
📌 Key Case: Summers v. Tice (reviewed in Class 9)
3. Market Share Liability
 Used when multiple manufacturers produce a defective product, but the plaintiff
cannot identify which company’s product caused the harm.
 Each manufacturer is liable for a percentage of damages based on their market share.
📌 Example:
 Multiple drug companies produce a defective pregnancy drug.

 The plaintiff cannot determine which company made the specific pill she took.
 The court holds each manufacturer liable based on their percentage of the market.
✅ Market share liability allows recovery when a specific tortfeasor cannot be identified.
📌 Key Case: Sindell v. Abbott Laboratories (reviewed in Class 9)
4. Concert of Action
 All defendants who acted together are jointly liable, even if only one caused harm.
 Used when defendants engage in reckless or illegal behavior together.
📌 Example:
 Two people drag race and one hits a pedestrian.

 Even though only one driver hit the pedestrian, both are liable for encouraging
reckless behavior.
✅ If defendants act together in a dangerous way, all are responsible.
IV. Key Cases on Multiple Causation

49
Case 1: McDonald v. Robinson (1929)
📌 Issue
Can multiple negligent drivers both be held liable when their actions combined to cause harm?
📌 Rule
 When two or more negligent acts combine to cause harm, all negligent actors are
jointly liable.
📌 Application
 Two drivers collided, and their entangled cars hit a pedestrian.

 Both drivers were negligent.
 The court ruled that each driver’s negligence contributed to the injury, so both were
liable.
📌 Conclusion
 Multiple defendants can be jointly liable when their actions combine to cause harm.
📌 Key Takeaway
 If multiple negligent acts combine to cause harm, each actor is liable.
✅ McDonald v. Robinson established joint liability when multiple defendants contribute to

an injury.
Case 2: Ford Motor Co. v. Boomer (2013)
📌 Issue
How should courts handle causation when multiple sources could have caused an asbestos-
related disease?
📌 Rule
 Each exposure to a harmful substance must be independently sufficient to cause

harm for liability to attach.
📌 Application
 The plaintiff developed mesothelioma after exposure to multiple asbestos sources.

 Ford argued that the plaintiff could not prove their exposure to Ford’s product caused
the disease.
50
 The court ruled that exposure to each defendant’s product must be independently
sufficient to cause the illness for liability to attach.
📌 Conclusion
 If multiple exposures contribute to harm, each must be independently sufficient for

liability.
📌 Key Takeaway
 Courts require proof that each exposure was a substantial factor in causing harm.
✅ Ford Motor Co. v. Boomer clarified causation in asbestos-related litigation.
Case 3: Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway (1920)
📌 Issue
How does causation apply when two independent fires combine to cause harm?
📌 Rule
 When two causes independently could have caused the harm, both are treated as
substantial factors.
📌 Application
 Two separate fires merged and destroyed property.

 Either fire alone could have caused the damage.
 The court ruled that both fires were substantial factors, making both parties liable.
📌 Conclusion
 Multiple sufficient causes do not cancel each other out—each cause is independently
liable.
📌 Key Takeaway
 If multiple sufficient causes exist, each defendant is liable.
✅ Anderson v. Minneapolis clarified how courts handle multiple sufficient causes.
51
V. Policy Considerations in Multiple Causation Cases
 Courts must balance fairness with ensuring accountability among multiple tortfeasors.
 Expanding liability too much could lead to overburdening defendants.
 Limiting liability too much could leave plaintiffs without recourse.
Arguments for Holding Multiple Defendants Liable
✅ Encourages safe behavior among potential defendants.

✅ Prevents wrongdoers from escaping liability due to uncertainty.
✅ Ensures plaintiffs receive compensation even when causation is unclear.
Arguments Against Holding Multiple Defendants Liable
❌ Could create overbroad liability.

❌ May punish innocent defendants due to burden-shifting doctrines.
❌ Defendants may be held liable for harm they did not actually cause.
✅ Courts try to balance protecting plaintiffs while preventing unfair liability.

✅ The "But-For" Test does not always work in multi-defendant cases.
✅ The "Substantial Factor" Test applies when multiple causes contribute to harm.
✅ Alternative Liability shifts the burden to defendants in some cases.
✅ Market Share Liability applies when a specific tortfeasor cannot be identified.
✅ Concert of Action holds all participants liable if they act together in negligence.
📌 From Class PPTs
 Causation doctrines ensure fair distribution of liability in multi-defendant cases.
Class 11 – Proximate Cause

pp. 336-352, 354-361
52
I. Introduction to Proximate Cause
Once actual causation (cause-in-fact) is established, courts must determine whether the
defendant should be legally responsible for the harm. This is where proximate cause (legal
causation) comes in.
 Proximate cause limits liability to prevent endless chains of responsibility.

 Courts ask whether the harm was too remote or too attenuated from the breach.
 Proximate cause is about fairness—should the defendant be held liable?
✅ Proximate cause prevents defendants from being liable for unforeseeable, freak
accidents.
II. Black Letter Law on Proximate Cause

1. Even if actual causation is established, a defendant is only liable for foreseeable
harms.
2. There are three primary tests for proximate cause:
o Directness Test (outdated)
o Foreseeability Test (dominant approach)
o Scope of the Risk Test (modern trend)
3. An intervening cause may break the chain of causation if it is unforeseeable.
4. Superseding causes relieve the original defendant of liability.
5. Medical malpractice is generally not considered a superseding cause.
 Proximate cause asks: Where should we draw the line of responsibility?

 It is closely tied to the duty element of negligence.
✅ Proximate cause prevents endless liability by limiting responsibility to foreseeable harms.
III. Tests for Proximate Cause

Courts use different tests to determine whether the defendant should be held liable for the
harm.
1. The Directness Test (Old Rule)
53
 Used in Polemis (1921) but largely abandoned.
 If there is a direct link between the breach and the harm, the defendant is liable even
if the harm was unforeseeable.
📌 Example:
 A worker drops a plank, which sparks a fire and burns down a ship.
 Under the directness test, the worker is liable, even if the fire was unexpected.
✅ The directness test is rarely used today because it leads to excessive liability.
📌 Key Case: In re Polemis (1921) (not a dominant rule today)
2. The Foreseeability Test (Main Rule)
 A defendant is only liable for harms that were reasonably foreseeable.

 If the harm was highly unusual or unexpected, the defendant is not liable.
📌 Example:
 A driver runs a red light, causing a car crash.

 If the crash leads to a gas station explosion two blocks away, the explosion may not be
foreseeable, so the driver is not liable.
✅ This is the dominant test in most courts.
📌 Key Case: Wagon Mound No. 1 (1961)
 A ship spilled oil into a harbor.

 Workers on a dock accidentally ignited the oil, causing a fire.
 The court ruled that fire was not a foreseeable consequence of an oil spill, so there was
no proximate cause.
✅ The Wagon Mound case firmly established foreseeability as the dominant rule.
3. The Scope of the Risk Test (Modern Trend)
Definition:
The Scope of the Risk Test (also called the "Risk Rule") states that a defendant is only liable
for harms that result from the risks that made the defendant’s conduct negligent in the first
place.
54
How It Works:
 Step 1: Identify the risks that made the defendant’s behavior negligent.
 Step 2: Determine whether the plaintiff’s harm falls within those risks.
 Step 3: If the harm is within the foreseeable scope of risk, the defendant is liable.
📌 Example:
 A store owner fails to clean up a spill, and a customer slips and falls.
 The store is liable for the fall, but not if the customer is later struck by lightning in the
parking lot.
 Why? The risk of slipping was created by the negligence (not cleaning the spill), but the
risk of lightning was not.
✅ The risk rule helps courts define liability more precisely than the foreseeability test.
📌 Key Case: Jolley v. Sutton London Borough Council
 A child was injured while playing on an abandoned boat.

 The city argued that the specific way the child was injured was unforeseeable.
 The court ruled that the type of harm was within the foreseeable risk, so the city was
liable.
✅ The risk rule is gaining traction because it better aligns with negligence principles.
IV. Key Cases on Proximate Cause

Case 1: Palsgraf v. Long Island Railroad Co. (1928)
📌 Issue
Is a defendant liable for harm to an unforeseeable plaintiff?
📌 Rule
 A duty is only owed to foreseeable plaintiffs within the "zone of danger".

 If harm is unforeseeable, there is no proximate cause.
📌 Application
 A railroad worker helped a man onto a train, causing him to drop a package of
fireworks.
 The fireworks exploded, knocking over scales, which fell and injured Palsgraf, who was
far away.
55
 The court ruled that the injury was not foreseeable, so no duty was owed to Palsgraf.
📌 Conclusion
 The railroad was not liable because Palsgraf’s injury was too remote and
unforeseeable.
📌 Key Takeaway
 Foreseeability limits liability—defendants are not responsible for unforeseeable

plaintiffs.
✅ Palsgraf introduced the "zone of danger" test for duty and proximate cause.
V. Policy Considerations in Proximate Cause Cases

 Proximate cause balances fairness and efficiency.

 Expanding liability too far could lead to limitless responsibility.
 Narrowing liability too much could leave injured plaintiffs without a remedy.
Arguments for Limiting Proximate Cause
✅ Prevents overburdening defendants.

✅ Encourages predictability in the law.
✅ Protects economic growth by limiting liability.
Arguments for Expanding Proximate Cause
✅ Ensures injured parties receive compensation.

✅ Holds negligent actors accountable.
✅ Encourages safer behavior.
✅ Most courts use foreseeability and the risk rule to balance liability fairly.

✅ Proximate cause limits liability based on foreseeability.
✅ The Scope of the Risk Test is gaining favor as a more precise test.
✅ Intervening causes may break the chain of causation.
56
✅ Palsgraf established the "zone of danger" rule.
✅ Policy concerns influence how courts apply proximate cause.
 Understand how different proximate cause tests affect liability.

 Be able to explain the Scope of the Risk Test with examples.
Class 12 – Proximate Cause Continued

pp. 382-406
I. Review of Proximate Cause

Proximate cause ensures that defendants are only held liable for harms that are closely
related to their negligent conduct. It is a legal limitation on liability that prevents defendants
from being responsible for every consequence of their actions, no matter how remote or
unexpected.
 Proximate cause is fundamentally about fairness and predictability.

 There must be a logical connection between the breach and the harm.
 Intervening causes can sometimes break the chain of causation, limiting liability.
✅ Proximate cause ensures that liability is not endless and is confined to foreseeable harms.

1. A defendant is only liable for harms that were a foreseeable consequence of their
negligence.
2. There are three main tests for proximate cause:
o Directness Test (no longer widely used)
o Foreseeability Test (dominant in most courts)
o Scope of the Risk Test (increasingly favored)
3. An intervening act may break the chain of causation if it is unforeseeable.
4. Superseding causes relieve the original defendant of liability by severing the causal
chain.
57
5. Ordinary medical malpractice is generally considered foreseeable and does not
break the chain of causation.
 Juries often decide proximate cause when there is a dispute over foreseeability.
 Courts use different causation tests depending on jurisdiction and case
circumstances.
✅ Understanding proximate cause is crucial for analyzing liability in negligence cases.
III. The Role of Intervening and Superseding Causes

An intervening cause is an event that occurs after the defendant's negligent act and
contributes to the plaintiff’s harm.
 If the intervening cause was foreseeable, the original defendant remains liable.
 If the intervening cause was unforeseeable and independent, it may be classified as a
superseding cause, cutting off liability.
📌 Example:
 A driver negligently runs a red light and hits a pedestrian.

 The pedestrian is taken to the hospital, where a doctor negligently administers the
wrong medication, worsening the injury.
 The doctor’s negligence is an intervening cause but NOT a superseding cause—the
original driver remains liable.
✅ If the subsequent harm is a foreseeable consequence of the original negligence, the

defendant remains liable.
IV. Superseding Causes: When Liability is Cut Off
A superseding cause is an intervening event that completely breaks the causal chain,
absolving the original defendant of liability.
 Superseding causes are rare but can relieve liability when the second event is highly
unusual or intentional.
 If an intervening act was highly foreseeable, it will NOT be superseding.
58
📌 Examples of Superseding Causes:
✅ Intentional Criminal Acts – A defendant’s negligence leads a plaintiff into a dangerous area
where they are attacked by a criminal.
✅ Natural Disasters – A defendant leaves hazardous materials outside, and a tornado spreads
them, causing injury.
✅ Extraordinary Negligence of a Third Party – A doctor amputates the wrong limb after
treating a car accident victim.
✅ If an event is truly extraordinary and independent of the original negligence, it may sever
liability.
📌 Key Case: Ventricelli v. Kinney System Rent-A-Car (1978)
 A rental car had a defective trunk lid, which popped open in a parking lot.
 The driver stepped out to fix it and was hit by another car.
 The court ruled that the second driver’s negligence was an intervening, superseding
cause that cut off liability for the rental car company.
✅ Superseding causes must be highly unforeseeable to relieve a defendant of liability.
V. Key Cases on Proximate Cause and Intervening Causes

Case 1: Pollard v. Oklahoma City Railway Co. (1911)
📌 Issue
Is a defendant liable if a third party takes dangerous materials left by the defendant and misuses
them?
📌 Rule
 A defendant is not liable if an intervening third party’s conduct was highly

unforeseeable.
📌 Application
 A railway company left explosive powder unattended.

 A child collected it and later ignited it, causing an explosion.
 The court ruled that the child’s actions were a superseding cause—the railway company
was not liable.
📌 Conclusion
59
 The defendant’s negligence ended when the third party took control of the dangerous
material.
📌 Key Takeaway
 If an intervening party’s actions are reckless and unforeseeable, they may sever
liability.
✅ Pollard demonstrates when an intervening act can be a superseding cause.
Case 2: Clark v. E.I. DuPont de Nemours Powder Co. (1915)
📌 Issue
When is an intervening act sufficiently foreseeable to hold the original defendant liable?
📌 Rule
 A defendant is liable if the intervening act was a foreseeable consequence of their

negligence.
📌 Application
 A company left nitroglycerine unattended.

 A child found it and took it to a graveyard, where it exploded.
 The court ruled that it was foreseeable that children would play with explosives and
DuPont was liable.
📌 Conclusion
 Leaving explosive materials unattended created a foreseeable risk of injury.
📌 Key Takeaway
 If the risk is foreseeable, intervening acts do not break the chain of causation.
✅ Clark v. DuPont establishes that foreseeability determines whether an intervening cause

is superseding.
Case 3: Derdiarian v. Felix Contracting Corp. (1980)
60
📌 Issue
Is an intervening act a superseding cause if it was a foreseeable consequence of the original
negligence?
📌 Rule
 If an intervening act was foreseeable, the original defendant remains liable.
📌 Application
 A driver suffered a medical emergency, veered off the road, and hit a construction
worker.
 The court found that the construction company failed to install protective barriers.
 Because cars veering off the road was foreseeable, the company remained liable.
📌 Conclusion
 The defendant’s failure to provide safety measures made the accident foreseeable.
📌 Key Takeaway
 A defendant remains liable if the intervening act was part of the risk created by
their negligence.
✅ Derdiarian demonstrates that foreseeability is the key factor in proximate cause.
VI. Policy Considerations in Proximate Cause Cases

 Proximate cause prevents endless liability while ensuring injured plaintiffs receive
fair compensation.
 Foreseeability is used to balance fairness to defendants and protection for plaintiffs.
✅ Ensures negligent actors remain accountable.

✅ Encourages safe business practices.
✅ Provides compensation to victims of foreseeable harm.
61
❌ Prevents defendants from being overburdened with liability.
❌ Encourages predictability in negligence cases.
❌ Protects businesses and individuals from liability for freak accidents.
✅ Most courts strike a balance using foreseeability and the risk rule.

✅ Intervening acts may break the chain of causation if they are highly unforeseeable.
✅ Superseding causes absolve the original defendant of liability.
✅ Pollard and Clark show how courts assess intervening causes.
✅ Derdiarian confirms that foreseeability is the key test in proximate cause.
Class 12 – Proximate Cause Continued

pp. 382-406
I. Review of Proximate Cause

Proximate cause ensures that defendants are only held liable for harms that are closely
related to their negligent conduct. It is a legal limitation on liability that prevents defendants
from being responsible for every consequence of their actions, no matter how remote or
unexpected.
 Proximate cause is fundamentally about fairness and predictability.

 There must be a logical connection between the breach and the harm.
 Intervening causes can sometimes break the chain of causation, limiting liability.
✅ Proximate cause ensures that liability is not endless and is confined to foreseeable harms.
62
1. A defendant is only liable for harms that were a foreseeable consequence of their
negligence.
2. There are three main tests for proximate cause:
o Directness Test (no longer widely used)
o Foreseeability Test (dominant in most courts)
o Scope of the Risk Test (increasingly favored)
3. An intervening act may break the chain of causation if it is unforeseeable.
4. Superseding causes relieve the original defendant of liability by severing the causal
chain.
5. Ordinary medical malpractice is generally considered foreseeable and does not
break the chain of causation.
 Juries often decide proximate cause when there is a dispute over foreseeability.
 Courts use different causation tests depending on jurisdiction and case
circumstances.
✅ Understanding proximate cause is crucial for analyzing liability in negligence cases.
III. The Role of Intervening and Superseding Causes

An intervening cause is an event that occurs after the defendant's negligent act and
contributes to the plaintiff’s harm.
 If the intervening cause was foreseeable, the original defendant remains liable.
 If the intervening cause was unforeseeable and independent, it may be classified as a
superseding cause, cutting off liability.
📌 Example:
 A driver negligently runs a red light and hits a pedestrian.

 The pedestrian is taken to the hospital, where a doctor negligently administers the
wrong medication, worsening the injury.
 The doctor’s negligence is an intervening cause but NOT a superseding cause—the
original driver remains liable.
✅ If the subsequent harm is a foreseeable consequence of the original negligence, the

defendant remains liable.
IV. Superseding Causes: When Liability is Cut Off
63
A superseding cause is an intervening event that completely breaks the causal chain,
absolving the original defendant of liability.
 Superseding causes are rare but can relieve liability when the second event is highly
unusual or intentional.
 If an intervening act was highly foreseeable, it will NOT be superseding.
📌 Examples of Superseding Causes:

✅ Intentional Criminal Acts – A defendant’s negligence leads a plaintiff into a dangerous area
where they are attacked by a criminal.
✅ Natural Disasters – A defendant leaves hazardous materials outside, and a tornado spreads
them, causing injury.
✅ Extraordinary Negligence of a Third Party – A doctor amputates the wrong limb after
treating a car accident victim.
✅ If an event is truly extraordinary and independent of the original negligence, it may sever
liability.
📌 Key Case: Ventricelli v. Kinney System Rent-A-Car (1978)
 A rental car had a defective trunk lid, which popped open in a parking lot.
 The driver stepped out to fix it and was hit by another car.
 The court ruled that the second driver’s negligence was an intervening, superseding
cause that cut off liability for the rental car company.
✅ Superseding causes must be highly unforeseeable to relieve a defendant of liability.
V. Key Cases on Proximate Cause and Intervening Causes

Case 1: Pollard v. Oklahoma City Railway Co. (1911)
📌 Issue
Is a defendant liable if a third party takes dangerous materials left by the defendant and misuses
them?
📌 Rule
 A defendant is not liable if an intervening third party’s conduct was highly

unforeseeable.
📌 Application
64
 A railway company left explosive powder unattended.
 A child collected it and later ignited it, causing an explosion.
 The court ruled that the child’s actions were a superseding cause—the railway company
was not liable.
📌 Conclusion
 The defendant’s negligence ended when the third party took control of the dangerous
material.
📌 Key Takeaway
 If an intervening party’s actions are reckless and unforeseeable, they may sever
liability.
✅ Pollard demonstrates when an intervening act can be a superseding cause.
Case 2: Clark v. E.I. DuPont de Nemours Powder Co. (1915)
📌 Issue
When is an intervening act sufficiently foreseeable to hold the original defendant liable?
📌 Rule
 A defendant is liable if the intervening act was a foreseeable consequence of their

negligence.
📌 Application
 A company left nitroglycerine unattended.

 A child found it and took it to a graveyard, where it exploded.
 The court ruled that it was foreseeable that children would play with explosives and
DuPont was liable.
📌 Conclusion
 Leaving explosive materials unattended created a foreseeable risk of injury.
📌 Key Takeaway
 If the risk is foreseeable, intervening acts do not break the chain of causation.
✅ Clark v. DuPont establishes that foreseeability determines whether an intervening cause

is superseding.
65
Case 3: Derdiarian v. Felix Contracting Corp. (1980)
📌 Issue
Is an intervening act a superseding cause if it was a foreseeable consequence of the original
negligence?
📌 Rule
 If an intervening act was foreseeable, the original defendant remains liable.
📌 Application
 A driver suffered a medical emergency, veered off the road, and hit a construction
worker.
 The court found that the construction company failed to install protective barriers.
 Because cars veering off the road was foreseeable, the company remained liable.
📌 Conclusion
 The defendant’s failure to provide safety measures made the accident foreseeable.
📌 Key Takeaway
 A defendant remains liable if the intervening act was part of the risk created by
their negligence.
✅ Derdiarian demonstrates that foreseeability is the key factor in proximate cause.
VI. Policy Considerations in Proximate Cause Cases

 Proximate cause prevents endless liability while ensuring injured plaintiffs receive
fair compensation.
 Foreseeability is used to balance fairness to defendants and protection for plaintiffs.
✅ Ensures negligent actors remain accountable.

✅ Encourages safe business practices.
✅ Provides compensation to victims of foreseeable harm.
66
❌ Prevents defendants from being overburdened with liability.

❌ Encourages predictability in negligence cases.
❌ Protects businesses and individuals from liability for freak accidents.
✅ Most courts strike a balance using foreseeability and the risk rule.

✅ Intervening acts may break the chain of causation if they are highly unforeseeable.
✅ Superseding causes absolve the original defendant of liability.
✅ Pollard and Clark show how courts assess intervening causes.
✅ Derdiarian confirms that foreseeability is the key test in proximate cause.
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Class 13 – Negligence Per Se & Wrongful

Death
pp. 424-439, 465-466, 467-469
I. Introduction to Negligence Per Se & Wrongful Death

This class introduces two critical doctrines in tort law:
1. Negligence Per Se – A doctrine that establishes negligence based on statutory violations.

2. Wrongful Death – A cause of action that allows family members to sue for damages
when a person dies due to another’s negligence or wrongful act.
📌 Negligence Per Se from Prof. Cravens’ Lecture (Expected Points from Course Structure):
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 Negligence per se allows statutes to define the standard of care.
 If a defendant violates a safety statute, they are automatically deemed negligent.
 The plaintiff must be within the class of persons the statute was meant to protect.
📌 Wrongful Death from Course Readings:
 Traditionally, tort claims ended with the victim’s death (common law "no survival"
rule).
 Modern wrongful death statutes allow survivors to sue for financial and emotional
loss.
 These claims are statutory, varying by jurisdiction.
✅ Negligence per se simplifies proving breach, and wrongful death statutes provide
remedies for surviving family members.
II. Black Letter Law on Negligence Per Se & Wrongful

Death
Negligence Per Se
1. Negligence per se applies when a defendant violates a statute designed to prevent the
type of harm that occurred.
2. The plaintiff must be within the class of persons the statute was meant to protect.
3. The violation of the statute automatically satisfies the duty and breach elements of
negligence.
4. Defendants may present excuses (e.g., compliance was impossible or more
dangerous than non-compliance).
5. Negligence per se does not apply to all statutes—only safety-related laws.
📌 Class Notes on Negligence Per Se (Expected from Lecture):
 Statutory violations create a presumption of negligence, shifting the burden to the

defendant to justify the violation.
 Common examples: Traffic laws, building codes, food safety regulations.
✅ Negligence per se simplifies litigation when a statute clearly defines the duty of care.
Wrongful Death
1. Wrongful death actions allow the estate or family members to recover for losses
caused by a defendant’s negligence or intentional act.
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2. Wrongful death claims are statutory and vary by jurisdiction.
3. Damages typically include lost income, funeral costs, and emotional suffering.
4. Only designated family members (e.g., spouses, children, parents) can file a
wrongful death lawsuit.
5. Some states allow punitive damages if the defendant’s conduct was reckless or
intentional.
📌 Class Notes on Wrongful Death (Expected from Lecture):
 Wrongful death statutes aim to compensate survivors, not punish defendants.

 Historically, wrongful death actions did not exist under common law.
 Some jurisdictions allow survival actions (where the decedent’s estate sues for
injuries suffered before death).
✅ Wrongful death statutes provide legal remedies when traditional tort law would not
allow claims after death.
III. Negligence Per Se: Establishing Breach Through

Statutory Violations
Negligence per se occurs when a defendant violates a statute that sets a standard of conduct
designed to prevent the type of harm that occurred.
Elements of Negligence Per Se
To prove negligence per se, the plaintiff must establish:
1. A statute existed that sets a standard of conduct.

2. The defendant violated the statute.
3. The plaintiff was in the class of people the statute was meant to protect.
4. The harm suffered was the type the statute was designed to prevent.
📌 Example:
 A driver runs a red light and hits a pedestrian.

 The pedestrian is in the class of people traffic laws protect.
 The harm (bodily injury) is exactly what traffic laws are meant to prevent.
 Negligence per se applies, and the driver is automatically deemed negligent.
✅ Negligence per se replaces the need to prove breach—the statute defines it.
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IV. Key Cases on Negligence Per Se
Case 1: Martin v. Herzog (1920)
📌 Issue
Is violating a safety statute automatically negligence?
📌 Rule
 Violation of a safety statute is negligence per se unless an excuse applies.
📌 Application
 The plaintiff drove without headlights, violating a traffic law.

 The defendant collided with the plaintiff’s car at night.
 The court ruled that driving without headlights was automatically negligent.
📌 Conclusion
 Statutory violations establish negligence, but causation and damages must still be
proven.
📌 Key Takeaway
 Negligence per se removes the need to prove breach—the statutory violation is

conclusive evidence.
✅ Martin v. Herzog is the foundational case for negligence per se in U.S. tort law.
Case 2: O’Guin v. Bingham County (2005)
📌 Issue
Can a government entity be held liable under negligence per se for failing to enforce safety laws?
📌 Rule
 Negligence per se applies if a government agency violates a statute designed to

protect the public.
📌 Application
 Children entered a landfill site and were killed by collapsing debris.

 A local ordinance required fences and warning signs, which were not installed.
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 The court ruled that the county’s failure to comply with the ordinance was negligence
per se.
📌 Conclusion
 Government entities can be held liable if they fail to enforce public safety laws.
📌 Key Takeaway
 Negligence per se applies to statutory safety violations, even against public entities.
✅ O’Guin v. Bingham County expanded negligence per se to cases involving government

noncompliance.
V. Wrongful Death: Compensation for Survivors

Wrongful death statutes provide legal remedies for family members when a person dies due to
another’s negligence or intentional act.
Elements of Wrongful Death
To establish a wrongful death claim, the plaintiff must prove:
1. The defendant’s conduct would have been actionable if the victim had survived.
2. The plaintiff has standing (e.g., spouse, child, estate representative).
3. The death resulted directly from the defendant’s wrongful act.
4. The plaintiff suffered damages from the death (e.g., financial loss, emotional
distress).
📌 Example:
 A hospital fails to diagnose an infection, leading to the patient’s death.

 The patient’s spouse sues for lost financial support and funeral expenses.
 The claim is valid under wrongful death statutes.
✅ Wrongful death statutes provide compensation for survivors but vary by jurisdiction.
VI. Key Cases on Wrongful Death

Case 3: Nelson v. Dolan (1989)
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📌 Issue
Can a wrongful death claim include compensation for the victim’s pain and suffering before
death?
📌 Rule
 Wrongful death claims compensate survivors, but survival actions compensate for
the victim’s pre-death suffering.
📌 Application
 A motorcyclist was killed in a collision, suffering severe injuries before death.

 The plaintiff filed both a wrongful death claim and a survival action.
 The court ruled that pain and suffering damages belong in the survival action, not the
wrongful death claim.
📌 Conclusion
 Wrongful death damages compensate survivors, not the deceased.
📌 Key Takeaway
 Survival actions and wrongful death claims serve different purposes.
✅ Nelson v. Dolan distinguishes wrongful death claims from survival actions.

✅ Negligence per se simplifies proving breach in statutory violation cases.
✅ Wrongful death claims allow survivors to recover damages for a deceased person’s death.
✅ Statutes define who can sue and what damages are available in wrongful death cases.
✅ Survival actions allow recovery for the victim’s pain and suffering before death.
Class 14-15 – Affirmative Defenses to

Negligence
pp. 497-506, 510-513, 521-531, 534-542, 547-553, 565-569
I. Introduction to Affirmative Defenses in Negligence

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Even if a plaintiff proves all elements of negligence (duty, breach, causation, and damages), a
defendant may avoid or reduce liability by asserting an affirmative defense.
📌 From Prof. Cravens’ Lecture (Expected Content Based on Course Structure):
 Affirmative defenses do not challenge the plaintiff’s claims but instead provide legal
reasons why liability should be limited or denied.
 Some defenses bar recovery entirely, while others reduce damages based on the
plaintiff’s fault.
 Defenses in negligence cases focus on fairness and public policy—how much
responsibility should a plaintiff bear for their own harm?
✅ Affirmative defenses can significantly impact the outcome of negligence cases, even if the
plaintiff has a strong case.
II. Black Letter Law on Affirmative Defenses to Negligence

Complete Defenses (Bar Recovery Entirely)
1. Contributory Negligence – In some jurisdictions, if the plaintiff is even slightly

negligent, they are barred from recovering damages.
2. Assumption of Risk – If the plaintiff voluntarily accepted a known risk, they cannot
recover damages.
Comparative Fault (Reduces Damages Based on Plaintiff’s Fault)
3. Pure Comparative Negligence – The plaintiff’s damages are reduced by their

percentage of fault, but they can recover even if they are more at fault than the defendant.
4. Modified Comparative Negligence – The plaintiff’s recovery is barred if they are at or
above a certain threshold of fault (e.g., 50% or 51%).
Other Defenses
5. Statutes of Limitations – A claim is barred if not filed within the legally required time.
6. Immunities – Certain defendants (e.g., government entities, charities) may have limited
liability.
📌 From Class Notes (Expected Content):
 Juries often determine the degree of plaintiff fault in comparative negligence cases.
 Assumption of risk often applies in recreational activities (e.g., skiing, skydiving).
 Statutes of limitations prevent indefinite exposure to liability.
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✅ These defenses balance fairness by ensuring plaintiffs bear responsibility for their own
actions.
III. Complete Defenses to Negligence

Some affirmative defenses completely bar recovery, meaning the plaintiff gets nothing even if
the defendant was negligent.
1. Contributory Negligence (Old Rule)
 If the plaintiff was even 1% at fault, they were barred from recovery.
 Still used in a few states (Alabama, Maryland, North Carolina, Virginia, and
Washington, D.C.).
 Considered unfair to plaintiffs, leading most states to adopt comparative negligence.
📌 Example:
 A pedestrian crosses the street against a red light and is hit by a speeding driver.
 Under contributory negligence, if the pedestrian is found even slightly negligent, they
recover nothing.
✅ Contributory negligence is a harsh rule and has been replaced in most states by
comparative negligence.
📌 Key Case: Butterfield v. Forrester (1809)
 A rider was injured after hitting an obstruction in the road.

 The court ruled that the plaintiff should have been riding carefully and was partially
at fault.
 Because the plaintiff was negligent, recovery was barred.
✅ This case established the contributory negligence rule, which has been largely
abandoned.
2. Assumption of Risk
 A plaintiff cannot recover if they voluntarily accepted a known risk.

 Applies in cases where the plaintiff knowingly engaged in a dangerous activity.
 Assumption of risk can be express (signing a waiver) or implied (engaging in risky
conduct).
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📌 Example:
 A skier signs a waiver acknowledging the dangers of skiing.

 If they are injured in a normal skiing accident, they cannot sue the resort under
assumption of risk.
✅ This defense is common in sports, recreational activities, and dangerous professions.
📌 Key Case: Murphy v. Steeplechase Amusement Co. (1929)
 A man was injured on an amusement park ride called “The Flopper.”

 The court ruled that he assumed the risk by voluntarily getting on the ride.
 Assumption of risk applies when a plaintiff knowingly engages in a risky activity.
✅ Murphy v. Steeplechase clarified that voluntary participation in risky activities limits

liability.
IV. Comparative Negligence (Modern Rule)

Because contributory negligence was too harsh, most states adopted comparative negligence,
which reduces damages rather than barring recovery.
3. Pure Comparative Negligence
 The plaintiff’s damages are reduced by their percentage of fault.

 Even if the plaintiff is 99% at fault, they can still recover 1% of damages.
 Used in California, Florida, and New York.
📌 Example:
 A driver is 90% at fault for a car accident, and another driver is 10% at fault.
 If damages are $100,000, the at-fault driver still recovers $10,000.
✅ This system allows plaintiffs to recover even when they are mostly responsible.
4. Modified Comparative Negligence
 Plaintiffs can recover damages only if they are not mostly at fault.
 Two versions exist:
o 50% Bar Rule – Plaintiffs recover only if they are less than 50% at fault.
o 51% Bar Rule – Plaintiffs recover only if they are 50% or less at fault.
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📌 Example:
 A pedestrian is 51% responsible for their injuries.

 Under modified comparative negligence, they recover nothing.
 If they were 49% responsible, they could recover 51% of damages.
✅ Most states use modified comparative negligence to prevent highly at-fault plaintiffs from
recovering.
📌 Key Case: McIntyre v. Balentine (1992)
 Tennessee adopted modified comparative negligence (50% bar rule).

 A plaintiff and defendant were both drinking before a car accident.
 The court ruled that the plaintiff could recover only if they were less than 50%
responsible.
✅ This case represents the shift away from contributory negligence to fairer comparative
negligence rules.
V. Other Defenses to Negligence

5. Statutes of Limitations
 A plaintiff must file their lawsuit within a set time period.

 Different claims have different deadlines (e.g., personal injury: 2-3 years, medical
malpractice: shorter deadlines).
 If a claim is filed too late, it is barred regardless of merit.
📌 Example:
 A plaintiff waits 5 years to file a car accident lawsuit, but the statute of limitations is 3
years.
 The claim is dismissed as untimely.
✅ Statutes of limitations ensure timely lawsuits and prevent stale claims.
6. Immunities (Limited Liability for Certain Defendants)
Some defendants have special legal protections that limit negligence liability:
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 Government Immunity – Protects public agencies from lawsuits unless explicitly
allowed.
 Charitable Immunity – Some states limit liability for nonprofit organizations.
 Parental Immunity – Limits lawsuits between parents and children in certain cases.
📌 Example:
 A firefighter is injured on duty and sues the city.

 The lawsuit is barred under government immunity.
✅ Immunities exist for policy reasons but are often controversial.
VI. Key Takeaways from Class 14-15

✅ Contributory negligence bars recovery completely in some states.
✅ Assumption of risk prevents lawsuits in dangerous activities.
✅ Comparative negligence reduces damages based on fault.
✅ Statutes of limitations bar untimely lawsuits.
✅ Immunities protect certain defendants from negligence liability.
Class 16 – Vicarious Liability & Introduction

to Damages
pp. 619-631
I. Introduction to Vicarious Liability & Damages

This class covers two major areas of tort law:
1. Vicarious Liability – A doctrine that holds an employer (or other principal) liable for the
negligence of their employee (or agent).
2. Damages – The legal remedies available to plaintiffs in negligence cases.
 Vicarious liability ensures accountability by imposing liability on employers for

employee negligence.
 Damages in tort law aim to compensate victims and, in some cases, deter wrongful
conduct.
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 There are different types of damages, including compensatory, punitive, and
nominal damages.
✅ Vicarious liability expands responsibility beyond the direct wrongdoer, and damages
determine the extent of financial recovery for plaintiffs.
II. Black Letter Law on Vicarious Liability & Damages

Vicarious Liability
1. Employers are liable for the torts of employees committed within the scope of
employment (Respondeat Superior).
2. Independent contractors generally do not create vicarious liability unless an
exception applies.
3. The employer’s own negligence (e.g., negligent hiring) is separate from vicarious
liability.
4. Vicarious liability applies even if the employer was not negligent themselves.
5. Some relationships beyond employment (e.g., agency relationships) may also create
vicarious liability.
Damages in Negligence Cases
6. Compensatory damages restore the plaintiff to their pre-injury position.

7. Punitive damages punish the defendant for reckless or intentional misconduct.
8. Nominal damages provide symbolic recognition of rights violations without
substantial loss.
9. Economic damages (e.g., medical bills, lost wages) are objectively verifiable.
10. Non-economic damages (e.g., pain and suffering) are subjective and vary by jury
assessment.
 Employers are liable for their employees’ negligence even if they had no direct
involvement.
 Vicarious liability does not apply to independent contractors unless special
circumstances exist.
 Juries determine damages based on evidence of loss and impact.
✅ Vicarious liability ensures businesses are accountable, while damages provide financial
relief to victims.
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III. Vicarious Liability: Holding Employers Accountable
Vicarious liability is based on the principle of Respondeat Superior, which means “let the
master answer.” This doctrine holds that an employer is responsible for the negligent acts of
employees performed within the scope of employment.
Elements of Vicarious Liability
To establish vicarious liability, the plaintiff must prove:
1. The tortfeasor was an employee (not an independent contractor).

2. The wrongful act occurred within the scope of employment.
📌 Example:
 A delivery driver runs a red light while delivering a package and hits a pedestrian.
 The employer is liable because the accident occurred while the driver was performing
work duties.
✅ Employers are liable for employee negligence but not usually for independent
contractors.
IV. Key Cases on Vicarious Liability

Case 1: Frolic vs. Detour – Joel v. Morison (1834)
📌 Issue
Is an employer liable if an employee deviates from their work duties?
📌 Rule
 An employer is only liable if the employee was acting within the scope of
employment.
 A minor deviation (“detour”) keeps liability, but a major deviation (“frolic”)
removes it.
📌 Application
 A cart driver veered off his route to take a personal detour.

 While off-route, he struck a pedestrian.
 The court ruled that the detour was small enough to keep the employer liable.
📌 Conclusion
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 Employers are not liable when employees go on personal "frolics."
📌 Key Takeaway
 A minor deviation (“detour”) does not eliminate vicarious liability, but a personal
errand (“frolic”) does.
✅ Joel v. Morison established the frolic vs. detour rule.
Case 2: Bussard v. Minimed, Inc. (2003)
📌 Issue
Is an employer liable when an employee causes harm after leaving work sick?
📌 Rule
 Vicarious liability applies if the risk arises from employment activities.
📌 Application
 A worker felt sick from pesticide exposure at work and left early.
 While driving home, she caused a car accident.
 The court ruled that because the risk (illness) came from the workplace, vicarious
liability applied.
📌 Conclusion
 Employers can be liable for employee actions outside the workplace if the risk
originates from work.
📌 Key Takeaway
 If an employment-related risk causes harm, vicarious liability may apply even off-
duty.
✅ Bussard v. Minimed expanded vicarious liability beyond direct job tasks.
V. Introduction to Damages in Negligence Cases

Once liability is established, courts must determine how much the defendant owes the
plaintiff. Damages are categorized into compensatory, punitive, and nominal damages.
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1. Compensatory Damages (Restoring the Plaintiff)
 Compensatory damages restore the plaintiff to their pre-injury position.

 Divided into economic and non-economic damages.
📌 Example:
 A pedestrian hit by a car can recover medical bills, lost wages, and pain and suffering.
✅ Compensatory damages are the most common form of recovery in negligence cases.
2. Punitive Damages (Punishing the Defendant)
 Punitive damages punish egregious conduct and deter future misconduct.

 Only available when the defendant acted recklessly or intentionally.
📌 Example:
 A drunk driver causes a fatal accident.

 Punitive damages are awarded to deter reckless driving.
✅ Punitive damages go beyond compensation to punish bad actors.
3. Nominal Damages (Symbolic Compensation)
 Awarded when a plaintiff’s rights were violated but no substantial harm occurred.
📌 Example:
 A trespasser enters someone’s property but causes no damage.

 The court awards $1 in nominal damages to recognize the rights violation.
✅ Nominal damages acknowledge a legal wrong even when losses are minimal.
VI. Key Cases on Damages

Case 3: Mathias v. Accor Economy Lodging, Inc. (2003)
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📌 Issue
Can a hotel be liable for punitive damages for knowingly exposing guests to harm?
📌 Rule
 Punitive damages are appropriate when the defendant’s conduct is reckless or

grossly negligent.
📌 Application
 A hotel knew about a bedbug infestation but continued renting rooms.

 The court awarded punitive damages to punish the hotel’s willful neglect.
📌 Conclusion
 Punitive damages deter businesses from putting profits over safety.
📌 Key Takeaway
 Punitive damages punish defendants who act recklessly or intentionally.
✅ Mathias v. Accor Economy Lodging shows how punitive damages deter reckless conduct.

✅ Employers are vicariously liable for employee negligence within the scope of
employment.
✅ The frolic vs. detour rule determines employer liability for employee deviations.
✅ Damages compensate plaintiffs for losses and, in some cases, punish defendants.
✅ Compensatory damages are the primary remedy in negligence cases.
✅ Punitive damages are only awarded for egregious conduct.
Class 17 – Damages Continued

pp. 619-631
I. Introduction to the Categories of Damages in Tort Law

Damages in tort law serve two primary purposes:
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1. Compensating the plaintiff for losses suffered (compensatory damages).
2. Deterring wrongful conduct (punitive damages).
 Compensatory damages aim to restore the plaintiff to their pre-injury condition.

 Economic and non-economic damages must be distinguished.
 Punitive damages are rare and only awarded for reckless or intentional misconduct.
✅ Understanding the types of damages helps assess what plaintiffs can recover in
negligence cases.
II. Black Letter Law on Damages in Negligence

Compensatory Damages (Restoring the Plaintiff)
1. Economic Damages (Special Damages) – Cover actual financial losses, such as medical
bills, lost wages, and property damage.
2. Non-Economic Damages (General Damages) – Cover intangible losses, such as pain
and suffering, emotional distress, and loss of enjoyment of life.
3. Damages must be proven with reasonable certainty – Speculative damages are not
recoverable.
Punitive Damages (Punishing the Defendant)
4. Punitive damages punish intentional or reckless misconduct.

5. Most jurisdictions require a higher standard of proof (clear and convincing
evidence) to award punitive damages.
6. Punitive damages must be proportionate to the harm caused.
Limits on Damages
7. Collateral Source Rule – A plaintiff’s recovery is not reduced by payments from third
parties (e.g., insurance).
8. Damage Caps – Some states impose limits on punitive and non-economic damages.
9. Mitigation of Damages – Plaintiffs must take reasonable steps to minimize their harm.
 Economic damages are more objective, while non-economic damages are subjective
and determined by juries.
 Punitive damages are limited by constitutional due process considerations (e.g.,
excessive fines).
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✅ Damages must be fair, proportionate, and supported by evidence.
III. Compensatory Damages: Economic vs. Non-Economic

Losses
Compensatory damages make the plaintiff whole by covering actual losses suffered due to the
defendant’s negligence.
1. Economic Damages (Special Damages)
 Easily quantifiable losses with a clear monetary value.

 Examples include:
✅ Medical expenses (hospital bills, rehabilitation costs).
✅ Lost wages (income lost due to injury).
✅ Property damage (repair or replacement costs).
✅ Future lost earnings (if the injury affects future work capacity).
📌 Example:
 A plaintiff suffers a broken leg in a car accident caused by a negligent driver.

 Medical bills total $20,000, lost wages $5,000, and car repairs $10,000.
 Total economic damages: $35,000.
✅ Economic damages are objective and proven through receipts, invoices, and financial
records.
2. Non-Economic Damages (General Damages)
 Subjective losses that do not have a fixed monetary value.

 Examples include:
✅ Pain and suffering (physical and emotional distress).
✅ Loss of enjoyment of life (e.g., inability to participate in hobbies).
✅ Loss of consortium (loss of companionship or relationship benefits).
✅ Emotional distress (psychological harm caused by the injury).
📌 Example:
 A plaintiff who loses mobility due to an injury may receive compensation for loss of
enjoyment of life.
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✅ Non-economic damages are determined by juries and vary based on the severity of the
harm.
📌 Key Case: Anderson v. Sears, Roebuck & Co. (1974)
 A child suffered severe burns from a defective product.

 The court awarded substantial non-economic damages for pain, suffering, and
emotional trauma.
 Jury discretion in non-economic damages is broad, but awards must be reasonable.
✅ Non-economic damages recognize the full impact of an injury beyond financial loss.
IV. Punitive Damages: When Are They Available?

Punitive damages are not compensatory—they punish defendants for egregious misconduct.
3. Punitive Damages (Exemplary Damages)
 Awarded only for reckless, willful, or intentional misconduct.

 Designed to punish and deter similar future behavior.
 Subject to constitutional limits under the Due Process Clause.
📌 Example:
 A company knowingly sells a defective drug that causes severe harm.

 The court awards punitive damages to punish the reckless conduct.
✅ Punitive damages deter intentional wrongdoing but are rarely awarded in ordinary
negligence cases.
📌 Key Case: Mathias v. Accor Economy Lodging, Inc. (2003)
 A hotel ignored a severe bedbug infestation, continuing to rent infested rooms.

 The jury awarded punitive damages because the hotel’s actions were willful and
reckless.
 Punitive damages deter companies from endangering customers for profit.
✅ Mathias v. Accor Economy Lodging reinforces that punitive damages punish bad-faith
corporate behavior.
V. Limitations on Damages in Tort Law

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Damages are subject to several legal doctrines that limit excessive recovery.
4. The Collateral Source Rule
 A plaintiff’s damages are not reduced by compensation from other sources (e.g.,
insurance payouts).
 Prevents defendants from benefiting from payments made to the plaintiff by third
parties.
📌 Example:
 A plaintiff receives $50,000 from health insurance for medical bills.

 The defendant is still liable for the full medical costs, even though insurance covered
them.
✅ The collateral source rule ensures full compensation for plaintiffs, regardless of external
payments.
5. Damage Caps
 Some states impose caps on punitive and non-economic damages.

 Damage caps are controversial—they limit jury discretion and restrict large verdicts.
📌 Example:
 A state law caps pain and suffering damages at $500,000, even if a jury awards more.
✅ Damage caps protect defendants from excessive awards but may reduce compensation
for severe injuries.
6. Mitigation of Damages
 Plaintiffs must take reasonable steps to reduce their losses.

 If a plaintiff fails to mitigate damages, their recovery may be reduced.
📌 Example:
 A plaintiff refuses necessary medical treatment after an injury.

 The defendant can argue that damages should be reduced because the plaintiff failed
to mitigate harm.
✅ Mitigation prevents plaintiffs from recovering for avoidable losses.
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VI. Key Cases on Damages
Case 3: BMW of North America, Inc. v. Gore (1996)
📌 Issue
Are excessive punitive damages unconstitutional?
📌 Rule
 Punitive damages must be proportionate to the harm and not grossly excessive.
📌 Application
 A car dealer misrepresented a car’s condition, leading to a punitive award of $2

million.
 The Supreme Court ruled that the amount was excessive and violated due process.
📌 Conclusion
 Punitive damages must be reasonable and proportional.
📌 Key Takeaway
 The Constitution limits excessive punitive damages to prevent arbitrary

punishment.
✅ BMW v. Gore set guidelines for punitive damage limits.

✅ Compensatory damages restore plaintiffs financially and emotionally.
✅ Economic damages are objectively calculated, while non-economic damages are
subjective.
✅ Punitive damages punish egregious behavior and deter misconduct.
✅ The collateral source rule ensures defendants pay full damages.
✅ Damage caps and mitigation doctrines limit excessive recovery.
Class 18 – Joint & Several Liability

📖 Tort Law: Responsibilities and Redress (5th ed. 2021)
87
 Pages 631-635, 638-644, 407-417
I. Introduction to Joint & Several Liability

When multiple defendants are responsible for a plaintiff’s harm, how should liability be
divided? Joint & several liability determines how multiple tortfeasors share financial
responsibility for damages.
 Joint & several liability holds multiple defendants liable for the entire judgment,
even if one defendant is unable to pay.
 Some jurisdictions have modified or abolished joint & several liability to avoid
unfairness to deep-pocket defendants.
 Courts must determine whether liability should be shared equally or apportioned
based on fault.
✅ Joint & several liability ensures plaintiffs receive full compensation, but raises fairness
concerns.
II. Black Letter Law on Joint & Several Liability

1. Joint & several liability applies when multiple defendants are responsible for the
plaintiff’s harm.
2. Each defendant is liable for the full amount of damages, even if others cannot pay.
3. Plaintiffs can collect the full amount from one defendant or divide it among multiple
defendants.
4. Some jurisdictions have replaced joint & several liability with proportionate fault
rules.
5. Contribution and indemnity doctrines allow defendants to shift liability among
themselves.
 Pure joint & several liability ensures full plaintiff recovery, but some states use
comparative fault to apportion damages.
 A defendant who pays more than their fair share can seek reimbursement from co-
defendants.
✅ Joint & several liability balances plaintiff compensation with fairness to defendants.
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III. Joint & Several Liability vs. Several Liability
Different jurisdictions take different approaches to handling multiple tortfeasors.
1. Joint & Several Liability (Traditional Rule)
 Each defendant is responsible for the full amount of damages.

 Plaintiff can recover 100% from any defendant, even if others cannot pay.
📌 Example:
 A plaintiff is awarded $1 million in damages.

 Three defendants are found equally responsible.
 The plaintiff can collect the entire $1 million from one defendant, who must then seek
reimbursement from the others.
✅ Ensures full recovery for plaintiffs but can be unfair to deep-pocket defendants.
2. Several Liability (Modern Trend)
 Each defendant is only liable for their share of fault.

 If a defendant cannot pay, the plaintiff may not receive full damages.
📌 Example:
 A plaintiff is awarded $1 million.

 Defendant A is 70% at fault, Defendant B is 30% at fault.
 Plaintiff can only recover $700,000 from A and $300,000 from B—if B cannot pay, the
plaintiff absorbs the loss.
✅ Fairer to defendants but riskier for plaintiffs.
📌 Key Case: Dillon v. Twin State Gas & Electric Co.
 A child was injured partly due to the defendant’s negligence, but also due to other
factors.
 The court apportioned liability rather than imposing joint & several liability.
 Modern courts increasingly divide damages based on comparative fault.
✅ Dillon v. Twin State shows the shift from strict joint liability to proportionate fault.
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IV. Contribution & Indemnity: Shifting Liability Among
Defendants
When a defendant pays more than their fair share, they may seek reimbursement from co-
defendants.
3. Contribution (Sharing Liability Equally)
 A defendant who pays more than their share can sue co-defendants for
reimbursement.
 Common in jurisdictions that retain joint & several liability.
📌 Example:
 Defendant A pays $1 million to the plaintiff, but Defendant B was 50% at fault.
 A can sue B for $500,000 in contribution.
✅ Ensures fairness among defendants by distributing liability.
📌 Key Case: Knell v. Feltman
 A driver was sued for negligence but successfully argued that another party was also at
fault.
 The court required the second party to contribute to the damages.
 Contribution ensures that no single defendant bears an unfair share of liability.
✅ Knell v. Feltman clarifies how defendants can shift liability through contribution.
4. Indemnity (Shifting Full Liability)
 Indemnity allows a defendant to shift full liability to another party.

 Common when a party is only vicariously liable for another’s actions.
📌 Example:
 An employer is sued for an employee’s negligence.

 The employer pays the judgment but seeks indemnity from the employee.
✅ Indemnity applies when a party is only indirectly responsible for harm.
📌 Key Case: American Motorcycle Ass’n v. Superior Court
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 A motorcycle organization was sued for negligence in an accident.
 They argued that another party should be fully responsible.
 The court allowed indemnity so the financial burden fell on the primarily responsible
party.
✅ American Motorcycle Ass’n v. Superior Court reinforced indemnity as a liability-shifting

mechanism.
V. Policy Considerations in Joint & Several Liability Cases

📌 From Prof. Cravens’ Lecture (Expected Content):
 Joint & several liability ensures full compensation but can place unfair burdens on
certain defendants.
 Comparative fault systems prevent unfair liability but risk leaving plaintiffs
undercompensated.
 Contribution and indemnity allow fairer distribution of damages among defendants.
Arguments for Joint & Several Liability
✅ Ensures full plaintiff compensation even if some defendants cannot pay.

✅ Encourages risk-spreading—defendants with resources absorb losses.
✅ Prevents negligent actors from escaping liability due to financial limitations.
Arguments for Several Liability
❌ Avoids unfairly punishing deep-pocket defendants.

❌ Encourages fair responsibility based on actual fault.
❌ Prevents defendants from being forced to pay for others' negligence.
✅ Many jurisdictions have adopted hybrid models that balance these concerns.

✅ Joint & several liability allows plaintiffs to recover full damages from any defendant.
✅ Several liability limits defendants to paying only their share of fault.
✅ Contribution allows defendants to seek reimbursement from co-defendants.
✅ Indemnity shifts full liability to the party most responsible for harm.
✅ Policy concerns focus on fairness to defendants vs. ensuring full recovery for plaintiffs.
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Class 19 – Strict Liability
pp. 887-907, 917-918, 923-925 (notes 2-6)
I. Introduction to Strict Liability

Strict liability is a form of tort liability that holds defendants liable for harm regardless of
fault or negligence. Unlike negligence, which requires breach of a duty of care, strict liability
applies even when the defendant took all reasonable precautions.
 Strict liability is imposed when activities or products create an inherently high risk
of harm.
 It applies primarily to abnormally dangerous activities, wild animals, and defective
products.
 Public policy supports strict liability to encourage safer business practices and
compensate victims fairly.
✅ Strict liability eliminates the need to prove fault, making it easier for plaintiffs to recover
damages.
II. Black Letter Law on Strict Liability

1. Strict liability applies when a defendant engages in an activity that is inherently
dangerous, regardless of precautions.
2. There are three main categories of strict liability:
o Abnormally dangerous activities
o Ownership of wild animals
o Product liability (defective products)
3. Causation and damages must still be proven, but breach is not required.
4. Defenses to strict liability include assumption of risk and unforeseeable superseding
events.
5. Strict liability is justified by risk distribution and fairness principles.
 Strict liability focuses on activity risk, not the defendant’s intent or negligence.
 Juries determine causation and damages, but fault is irrelevant.
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✅ Strict liability provides easier recovery for plaintiffs in high-risk situations.
III. Categories of Strict Liability

Strict liability applies in three major areas:
1. Abnormally Dangerous Activities
 Activities that create a high risk of serious harm, even with precautions.
 Courts consider six factors (from the Restatement of Torts § 520) to determine if an
activity is abnormally dangerous:
1. High degree of risk of harm.
2. Likelihood that the harm will be great.
3. Inability to eliminate risk with reasonable care.
4. Activity is uncommon in the community.
5. Activity is inappropriate for the location.
6. The harm outweighs the activity’s value to society.
📌 Examples:
✅ Blasting with dynamite – Even if all safety measures are followed, the risk remains high.
✅ Using toxic chemicals – The danger exists regardless of precautions.
📌 Key Case: Rylands v. Fletcher (1868)
 A reservoir on the defendant’s land collapsed, flooding the plaintiff’s property.

 The court ruled that the defendant was liable even though they were not negligent.
 Abnormally dangerous activities create strict liability.
✅ Rylands v. Fletcher established modern strict liability for hazardous activities.
2. Wild Animals & Dangerous Domestic Animals
 Owners of wild animals are strictly liable for injuries caused by their animals, even if
the owner used precautions.
 Strict liability may also apply to domestic animals with known dangerous
tendencies.
📌 Examples:
✅ A tiger escapes from a private zoo and injures a passerby – Owner is strictly liable.
✅ A dog with a known history of biting attacks a visitor – Owner is strictly liable.
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📌 Key Case: Sullivan v. Dunham (1900)
 A tree removal explosion injured a passerby.

 The court ruled that landowners are strictly liable for damages caused by abnormally
dangerous activities.
✅ Strict liability ensures that those who keep dangerous animals bear the risks.
3. Product Liability (Defective Products)
 Manufacturers, sellers, and distributors are strictly liable for defective products that
cause harm.
 Three types of product defects:
1. Manufacturing Defect – The product deviates from its intended design.
2. Design Defect – The product’s design is inherently dangerous.
3. Failure to Warn (Marketing Defect) – The product lacks proper safety
warnings.
📌 Examples:
✅ A car with faulty brakes that fails during normal use – Manufacturer is strictly liable.
✅ A lawnmower without a blade guard that causes injury – Design defect creates strict
liability.
📌 Key Case: Greenman v. Yuba Power Products (1963)
 A power tool malfunctioned and injured the plaintiff.

 The court ruled that manufacturers are strictly liable for defective products.
 Consumers should not have to prove negligence to recover damages.
✅ Greenman v. Yuba Power Products is the foundation of modern product liability law.
IV. Defenses to Strict Liability

Even though strict liability does not require proving fault, defendants can still raise defenses.
 If the plaintiff knowingly and voluntarily accepted a risk, they cannot recover
damages.
 Express assumption of risk (e.g., signing a waiver) and implied assumption of risk
apply.
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📌 Example:
 A person enters a wild animal enclosure at a zoo despite warning signs.

 If they are injured, assumption of risk may bar recovery.
✅ Plaintiffs who voluntarily accept known risks may not recover under strict liability.
2. Unforeseeable Superseding Events
 An unforeseeable third-party action may break the causal chain.
📌 Example:
 A truck carrying toxic chemicals crashes due to an earthquake.

 The chemical company may not be liable because the earthquake was an unforeseeable
superseding event.
✅ If an event is highly unusual and not caused by the defendant, it may cut off liability.
3. Comparative Fault in Product Liability
 Some jurisdictions allow comparative fault in product liability cases.

 If the plaintiff misused the product or ignored safety warnings, damages may be
reduced.
📌 Example:
 A consumer ignores warnings and improperly assembles a chainsaw, causing injury.

 The manufacturer may still be liable, but the damages may be reduced based on the
plaintiff’s negligence.
✅ Comparative fault may reduce, but not eliminate, liability in strict liability cases.
V. Policy Considerations in Strict Liability

 Strict liability ensures that those who create risk bear the cost of harm.
 It incentivizes businesses to improve safety.
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 Some argue strict liability unfairly penalizes careful defendants.
Arguments for Strict Liability
✅ Encourages safer practices in high-risk industries.

✅ Simplifies litigation for injured plaintiffs.
✅ Ensures that costs of harm are borne by those who profit from risky activities.
Arguments Against Strict Liability
❌ Can create excessive costs for businesses.

❌ Holds defendants liable even if they took precautions.
❌ Increases insurance and product costs for consumers.
✅ Most courts retain strict liability in limited areas like hazardous activities and product
liability.

✅ Strict liability applies regardless of fault in high-risk activities.
✅ Abnormally dangerous activities impose automatic liability.
✅ Owners of wild animals are strictly liable for injuries caused.
✅ Product liability holds manufacturers responsible for defective products.
✅ Defenses include assumption of risk, superseding events, and comparative fault.
Class 20 – Products Liability

 📖 Reading Assignment: Goldberg et al., Tort Law: Responsibilities and Redress (5th ed.
2021), pp.  981-987, 991-995, 999-1011
I. Introduction to Products Liability

Products liability refers to the legal responsibility of manufacturers, distributors, and sellers
for injuries caused by defective products. It is a subset of strict liability, meaning fault is not
required—plaintiffs only need to prove that a defect in the product caused their injury.
 Consumers should not have to prove negligence to recover damages from defective
products.
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 Products liability is primarily based on strict liability but also includes negligence
and warranty claims.
 The law holds companies accountable for dangerous products and ensures
consumer safety.
✅ Products liability shifts the burden from injured consumers to manufacturers who profit
from the product.
II. Black Letter Law on Products Liability

1. Manufacturers and sellers are strictly liable for defective products that cause harm.
2. There are three main types of product defects:
o Manufacturing Defect – The product deviates from its intended design.
o Design Defect – The product’s design is inherently dangerous.
o Failure to Warn (Marketing Defect) – The product lacks proper safety
warnings.
3. A product must be unreasonably dangerous for liability to attach.
4. Plaintiffs must prove that the defect existed when the product left the defendant’s
control.
5. Defenses include misuse, assumption of risk, and comparative fault.
 Strict liability makes it easier for consumers to win cases but still requires proof of
causation and damages.
 Courts must balance consumer protection with economic consequences for
businesses.
✅ Products liability ensures safe consumer goods while allowing defenses for responsible
manufacturers.
III. Three Types of Product Defects

A product can be defective in three ways:
1. Manufacturing Defect
 A mistake occurs during the production process, making the product different from
its intended design.
 Only some units are defective—not the entire product line.
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📌 Example:
 A batch of soda bottles is contaminated with shards of glass due to a factory error.
 Consumers who are injured can sue under strict liability for a manufacturing defect.
✅ Manufacturing defects are the easiest to prove because the product is different from
others in its line.
📌 Key Case: Escola v. Coca-Cola Bottling Co. (1944)
 A bottle exploded in a waitress’s hand, causing severe injury.

 The court ruled that the defect occurred during manufacturing and imposed strict
liability.
✅ Escola established the foundation for modern strict liability in defective products.
2. Design Defect
 The entire product line is unreasonably dangerous due to a flawed design.

 Safer alternative designs must be considered.
📌 Example:
 A car model has a fuel tank that explodes in rear-end collisions due to its placement.
 If a safer alternative design was available, the car company can be liable for a design
defect.
📌 Tests for Design Defect:
1. Consumer Expectation Test – Does the product perform as an ordinary consumer would
expect?
2. Risk-Utility Test – Do the risks of the design outweigh its benefits?
✅ Design defect cases focus on whether the product could have been made safer at a
reasonable cost.
📌 Key Case: Ford Pinto Case (Grimshaw v. Ford Motor Co.)
 Ford knew its Pinto model had a defective fuel system but decided not to fix it due to
cost.
 A crash caused an explosion, severely burning the plaintiff.
 The court awarded both compensatory and punitive damages for the design defect.
✅ The Ford Pinto case is a landmark in product safety law and corporate responsibility.
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3. Failure to Warn (Marketing Defect)
 A product is dangerous because it lacks adequate warnings or instructions.

 Manufacturers must warn about foreseeable risks, especially if they are not obvious
to consumers.
📌 Example:
 A medication causes severe side effects, but the manufacturer fails to disclose them on
the label.
 If a consumer is harmed, they can sue for failure to warn.
✅ Companies are not liable for obvious risks (e.g., knives are sharp) but must warn of
hidden dangers.
📌 Key Case: MacDonald v. Ortho Pharmaceutical Corp. (1985)
 A birth control pill failed to warn about a serious risk of stroke.

 The court ruled that manufacturers have a duty to provide clear warnings about
significant risks.
✅ MacDonald v. Ortho confirmed that inadequate warnings create strict liability.
IV. Defenses to Products Liability

Even in strict liability cases, manufacturers and sellers can raise defenses.
1. Product Misuse
 If a consumer misuses a product in an unforeseeable way, the defendant may not be

liable.
📌 Example:
 A person stands on a chair marked “not for standing”, causing it to break.

 The manufacturer is not liable if the misuse was unforeseeable.
✅ Misuse is a defense only if it was not reasonably foreseeable.
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 If a consumer knowingly accepts a risk, they cannot recover damages.
📌 Example:
 A person ignores clear warnings on a chainsaw and operates it unsafely.

 If they are injured, they may be barred from recovering damages.
✅ Assumption of risk requires that the plaintiff knowingly accepted the danger.
3. Comparative Fault
 Some states allow manufacturers to reduce liability based on the consumer’s

negligence.
📌 Example:
 A driver fails to wear a seatbelt and is injured in a car accident.

 The car company may argue that damages should be reduced due to comparative
fault.
✅ Comparative fault prevents consumers from recovering fully when they contribute to
their own injuries.
V. Policy Considerations in Products Liability

 Strict liability ensures companies prioritize safety.

 Courts must balance consumer protection with avoiding excessive litigation.
 Overregulation can stifle innovation, while underregulation puts consumers at risk.
Arguments for Strict Liability in Products Cases
✅ Holds companies accountable for unsafe products.

✅ Encourages investment in safer product design.
✅ Protects consumers who lack knowledge of product risks.
Arguments Against Strict Liability in Products Cases
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❌ Increases product costs due to insurance and legal expenses.
❌ Encourages excessive litigation against businesses.
❌ Can unfairly punish manufacturers for unforeseeable risks.
✅ Most courts apply strict liability but allow defenses to balance fairness.

✅ Manufacturers are strictly liable for defective products, even without negligence.
✅ Manufacturing defects occur in individual products, while design defects affect entire
product lines.
✅ Failure to warn applies when companies do not disclose hidden risks.
✅ Defenses include product misuse, assumption of risk, and comparative fault.
✅ Strict liability balances consumer protection and economic efficiency.
Class 21 – Defenses to Products Liability

pp. 1015-1035
I. Introduction to Defenses in Products Liability Cases

While strict liability makes it easier for plaintiffs to win products liability cases, defendants
can still raise legal defenses to limit or eliminate liability. These defenses ensure that
manufacturers are not unfairly blamed when consumers misuse products, ignore warnings,
or assume known risks.
 Defendants argue that consumers should bear responsibility for their own actions.
 Some defenses reduce damages, while others completely bar recovery.
 Courts must balance consumer protection with fairness to manufacturers.
✅ Products liability defenses prevent unfair outcomes and ensure liability is appropriately
distributed.
II. Black Letter Law on Defenses to Products Liability
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1. Product Misuse – A defendant is not liable if the plaintiff misused the product in an
unforeseeable way.
2. Assumption of Risk – A plaintiff cannot recover damages if they knowingly accepted a
product’s dangers.
3. Comparative Fault – Some states allow defendants to reduce damages based on the
plaintiff’s negligence.
4. State-of-the-Art Defense – A manufacturer is not liable if the product met scientific and
industry standards at the time.
5. Preemption – Federal regulations may override state product liability laws.
6. Statutes of Limitations & Repose – A lawsuit may be barred if not filed within the
required time period.
 Some defenses completely eliminate liability (e.g., misuse, assumption of risk).

 Other defenses reduce the plaintiff’s recovery (e.g., comparative fault).
✅ These defenses ensure fair allocation of responsibility between consumers and

manufacturers.
III. Common Defenses in Products Liability Cases

1. Product Misuse
 A manufacturer is not liable if the consumer used the product in an unforeseeable

and improper way.
 If misuse was foreseeable, the manufacturer may still be liable.
📌 Example:
 A person stands on a rolling office chair and falls.

 The manufacturer is not liable if the misuse was unforeseeable.
 However, if the manufacturer knew consumers used the chair this way, liability may
still exist.
✅ Foreseeability determines whether misuse is a valid defense.
📌 Key Case: Jones v. Ryobi, Ltd.
 A worker removed a safety guard from a saw and was injured.

 The court ruled that the manufacturer was not liable because the plaintiff misused the
product.
 Misuse must be unforeseeable for the defense to apply.
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✅ Jones v. Ryobi confirms that foreseeable misuse does not shield manufacturers from
liability.
 If a plaintiff knowingly and voluntarily accepts a product’s risks, they cannot

recover damages.
 Applies when the plaintiff understood the dangers but used the product anyway.
📌 Example:
 A skydiver buys a parachute labeled “use at your own risk”.

 If the parachute malfunctions, the skydiver may be barred from recovery.
✅ Assumption of risk applies when a plaintiff had knowledge of the danger and still
proceeded.
📌 Key Case: Daly v. General Motors Corp.
 A driver did not wear a seatbelt and was injured in a crash.

 The court ruled that he assumed the risk by ignoring safety precautions.
✅ Daly v. General Motors highlights that ignoring safety warnings can bar recovery.
3. Comparative Fault
 A plaintiff’s damages may be reduced if they contributed to their own injuries.

 Most states allow comparative fault in strict liability cases.
📌 Example:
 A driver fails to read an airbag warning label and is injured.

 A jury finds the driver 20% at fault and reduces damages accordingly.
✅ Comparative fault ensures fairness when plaintiffs contribute to their own injuries.
📌 Key Case: Campos v. Firestone Tire & Rubber Co.
 A worker ignored clear safety warnings on a tire inflation machine.

 The court reduced damages based on the plaintiff’s negligence.
✅ Campos v. Firestone confirms that comparative fault applies in product liability cases.
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4. State-of-the-Art Defense
 A manufacturer is not liable if the product met the best available safety standards at
the time.
 Technology advances, and manufacturers cannot be expected to predict future risks.
📌 Example:
 A 1990s car lacks modern airbags but met all safety standards when manufactured.
 If an accident occurs, the manufacturer is not liable under the state-of-the-art
defense.
✅ This defense protects companies from liability for unknown risks at the time of sale.
📌 Key Case: Brown v. Superior Court
 A pharmaceutical company was sued for not warning about unknown side effects.
 The court ruled that if science had not yet discovered the risks, the company was not
liable.
✅ Brown v. Superior Court protects manufacturers from retroactive liability.
5. Federal Preemption
 Federal laws can override state product liability claims.

 If a product complies with federal regulations, a manufacturer may argue that state
law claims are preempted.
📌 Example:
 A medical device approved by the FDA is later found to be dangerous.

 The manufacturer may argue that federal law preempts state lawsuits.
✅ Preemption ensures that federal safety regulations take precedence over state laws.
📌 Key Case: Riegel v. Medtronic, Inc.
 A medical device was FDA-approved but caused injuries.

 The Supreme Court ruled that federal approval preempted state lawsuits.
✅ Riegel v. Medtronic confirms that FDA-approved products may be shielded from

liability.
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6. Statutes of Limitations & Repose
 A lawsuit must be filed within a certain time after the injury occurs.
 Statutes of repose set a time limit based on the product’s sale date, even if no injury
has occurred yet.
📌 Example:
 A plaintiff is injured by a defective toaster 12 years after purchase.

 If the statute of repose is 10 years, the claim is barred.
✅ Statutes of limitations and repose prevent indefinite manufacturer liability.
📌 Key Case: McGovern v. General Motors Corp.
 A plaintiff filed suit after the statute of limitations expired.

 The court ruled that the claim was time-barred.
✅ McGovern v. GM shows that plaintiffs must act promptly in product liability cases.
VII. Policy Considerations in Products Liability Defenses

 Defenses prevent unjust manufacturer liability when consumers misuse products.

 Overly broad defenses can leave injured consumers without remedies.
 Courts balance fairness by allowing some defenses while preserving consumer
protections.
Arguments for Strong Defenses in Products Liability
✅ Protects businesses from excessive lawsuits.

✅ Encourages personal responsibility among consumers.
✅ Prevents manufacturers from being liable for unforeseeable risks.
Arguments Against Strong Defenses in Products Liability
❌ May leave injured plaintiffs without recovery.

❌ Encourages companies to avoid responsibility.
❌ Difficult to prove when defects contributed to injuries.
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✅ Most courts balance protecting consumers while ensuring manufacturers are not unfairly
blamed.

✅ Product misuse is a defense if the misuse was unforeseeable.
✅ Assumption of risk bars recovery if the plaintiff knowingly accepted the danger.
✅ Comparative fault reduces damages if the plaintiff contributed to their injuries.
✅ State-of-the-art defenses shield companies from liability for unknown risks.
✅ Federal preemption and statutes of limitations protect businesses from excessive liability.
Class 22 – Nuisance
pp. 930-936, 936-940, 959-974 (notes 5, 6, 7, 9, 10, 12)
I. Introduction to Nuisance
Nuisance is a tort that protects the right to use and enjoy property without unreasonable
interference. It applies when a defendant’s conduct substantially and unreasonably interferes
with another person’s use of land.
 Nuisance is about balancing property rights—one person’s use of land should not
unfairly infringe on another’s.
 The focus is on “unreasonable interference” rather than negligence or intent.
 Courts must weigh public and private interests when determining if a nuisance
exists.
✅ Nuisance cases arise in environmental disputes, land-use conflicts, and neighborhood

disputes.
II. Black Letter Law on Nuisance

Types of Nuisance
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1. Private Nuisance – An unreasonable interference with the use and enjoyment of
someone’s private property.
2. Public Nuisance – An interference with rights common to the public, such as pollution
or obstructing roads.
3. Nuisance Per Se – Activities that are always a nuisance, regardless of circumstances
(e.g., illegal activity).
4. Nuisance Per Accidens (or In Fact) – Activities that become a nuisance due to their
circumstances and surroundings.
Elements of Nuisance
To establish private nuisance, the plaintiff must prove:
1. Substantial interference – The interference must be more than trivial or minor.

2. Unreasonable interference – Courts balance the defendant’s conduct against the harm
suffered.
3. Causation – The defendant’s actions must have caused the interference.
4. Harm to use and enjoyment of land – The plaintiff must show how their property rights
were affected.
 Nuisance does not require negligence—liability exists even if the defendant acted
carefully.
 The standard is whether the interference is unreasonable from an objective
perspective.
✅ Nuisance protects property owners from significant disruptions, even if the conduct is
lawful.
III. Private Nuisance: Interference with Property Use

Private nuisance occurs when a person’s activities substantially and unreasonably interfere
with another’s private property rights.
Factors Courts Consider in Private Nuisance Claims
1. Extent and duration of harm – Long-term interference is more likely to be a nuisance.

2. Nature of the locality – Some disturbances are expected in industrial areas but not in
residential neighborhoods.
3. Social utility of the defendant’s conduct – Courts weigh the benefit of the defendant’s
actions against the harm caused.
4. Cost of avoiding the harm – If the harm is easily preventable, nuisance is more likely to
be found.
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📌 Examples:
✅ A neighbor plays loud music at night, disturbing nearby residents.
✅ A factory emits strong odors that make surrounding homes unlivable.
✅ A farm’s manure runoff contaminates nearby wells.
📌 Key Case: Morgan v. High Penn Oil Co. (1953)
 An oil refinery emitted noxious gases, making nearby homes uninhabitable.

 The court found private nuisance because the interference was substantial and
unreasonable.
 Even though the refinery was lawfully operating, its interference with nearby
landowners was excessive.
✅ Morgan v. High Penn Oil Co. shows that lawful businesses can still create a nuisance.
IV. Public Nuisance: Interference with Public Rights

Public nuisance occurs when a defendant’s conduct affects the general public rather than a
single property owner.
Elements of Public Nuisance
To establish public nuisance, the plaintiff must prove:
1. Interference with a public right – The nuisance affects many people (e.g., public
health, safety, or morals).
2. Substantial interference – The harm must be significant and not trivial.
3. Unreasonable interference – Courts balance the benefit of the conduct against the harm
caused.
📌 Examples:
✅ A factory pollutes a city’s water supply, affecting thousands of residents.
✅ A company dumps toxic waste into a river, harming wildlife and local fishermen.
✅ A nightclub creates traffic congestion that blocks emergency vehicles.
📌 Key Case: Spur Industries, Inc. v. Del E. Webb Development Co. (1972)
 A cattle feedlot produced strong odors, affecting a nearby retirement community.

 The court ruled the feedlot was a public nuisance, but also recognized that the
residential development moved toward the feedlot.
 The developer was required to compensate the feedlot owner for relocation.
✅ Spur Industries highlights the balance courts strike in public nuisance cases.
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V. Remedies for Nuisance
Plaintiffs can seek three main types of remedies in nuisance cases:
1. Injunctions (Stopping the Nuisance)
 A court order requiring the defendant to stop or reduce the nuisance.

 Courts prefer injunctions when money damages are inadequate.
📌 Example:
 A court orders a nightclub to reduce noise levels after 10 PM to prevent ongoing

disruption to neighbors.
✅ Injunctions prevent future harm rather than just compensating past losses.
2. Monetary Damages (Compensation)
 Plaintiffs can recover damages for loss of property value, health effects, or
inconvenience.
📌 Example:
 A homeowner receives compensation for diminished property value due to a nearby

landfill.
✅ Monetary damages compensate for harm already suffered.
3. Self-Help (Limited Application)
 In some cases, plaintiffs may abate the nuisance themselves (e.g., trimming
overhanging branches).
 Self-help is risky—courts may find the plaintiff liable for trespassing or excessive
force.
📌 Example:
 A homeowner removes an abandoned car blocking their driveway after repeated

complaints to the city.
109
✅ Self-help is a last resort and must be reasonable.
VI. Defenses to Nuisance Claims

Defendants can raise several defenses in nuisance cases:
1. Coming to the Nuisance
 If a plaintiff knowingly moved near an existing nuisance, they may have a weaker
claim.
📌 Example:
 A developer builds houses next to an airport and then sues for noise complaints.
 The defendant may argue that the plaintiff assumed the risk by moving there.
✅ Coming to the nuisance is not an absolute defense but influences the court’s decision.
2. Statutory Compliance
 If the defendant complied with regulations, they may argue that their conduct was
lawful.
 However, statutory compliance is not always a complete defense.
📌 Example:
 A factory follows state pollution laws but still emits strong odors.
 The factory may still be liable for nuisance despite compliance.
✅ Regulatory approval does not always prevent a nuisance claim.
3. Utility of the Activity
 If the defendant’s activity provides major public benefits, courts may limit liability.
📌 Example:
 A power plant supplies electricity to millions but causes pollution.

 The court may refuse to shut it down but require pollution controls.
110
✅ Courts balance economic benefits with property rights.
VII. Policy Considerations in Nuisance Law

 Nuisance law ensures a fair balance between economic growth and individual
property rights.
 Strict enforcement of nuisance law could stifle business development.
 Weak enforcement could leave property owners without remedies.
Arguments for Strong Nuisance Protections
✅ Protects property values and quality of life.

✅ Encourages responsible business practices.
✅ Prevents severe environmental harm.
Arguments for Limiting Nuisance Liability
❌ Encourages economic development.

❌ Prevents excessive lawsuits.
❌ Balances competing property rights.
✅ Most courts apply a reasonableness test to balance these interests.

✅ Nuisance protects property owners from unreasonable interferences.
✅ Private nuisance affects individuals; public nuisance affects the community.
✅ Remedies include injunctions, damages, and limited self-help.
✅ Defenses include coming to the nuisance and statutory compliance.
✅ Courts balance economic and environmental concerns when deciding nuisance cases.
Class 23 – Defamation
pp. 778-782, 785-789, 792-799, 811-815
111
I. Introduction to Defamation
Defamation is a tort that protects a person’s reputation from false and harmful statements. It
balances free speech rights with the right to be free from false attacks on one’s character.
 Defamation law protects individuals from reputational harm but must respect First
Amendment principles.
 Truth is an absolute defense—only false statements are actionable.
 Public figures have a higher burden of proof than private individuals.
✅ Defamation law attempts to balance free expression with protecting reputations.
II. Black Letter Law on Defamation

Elements of Defamation (Private Plaintiffs)
To prove defamation, a plaintiff must show:
1. Defamatory Statement – A false statement that harms reputation.

2. Publication – The statement was communicated to a third party.
3. Fault – The defendant acted negligently or with intent.
4. Harm/Damages – The plaintiff suffered reputational or other harm.
Public Figures & Officials (Higher Standard)
5. Public figures must prove “actual malice” (the defendant knew the statement was false
or acted with reckless disregard).
6. Public officials must also prove “actual malice” to recover damages.
Defamation Per Se
 Some statements are so harmful that damages are presumed, including:

✅ Allegations of criminal conduct
✅ Allegations of sexual misconduct
✅ False statements about professional incompetence
✅ Claims that someone has a loathsome disease
 Defamation law varies by jurisdiction—some states require proof of damages,

others do not.
112
 Libel (written defamation) is treated more seriously than slander (spoken
defamation).
✅ Public figures face a higher burden of proof, while private individuals only need to prove
negligence.
III. Types of Defamation: Libel vs. Slander

Defamation is divided into two categories based on how the statement is communicated.
1. Libel (Written Defamation)
 Written or published defamatory statements (e.g., newspapers, online articles, social

media posts).
 Considered more harmful than slander because written words have a lasting impact.
📌 Example:
 A newspaper falsely reports that a doctor committed medical malpractice.

 The doctor’s reputation suffers—this is libel.
✅ Libel cases are easier to prove because the evidence is permanent.
2. Slander (Spoken Defamation)
 Oral or spoken defamatory statements (e.g., speeches, TV interviews, conversations).

 Harder to prove because spoken words do not have a permanent record.
 Plaintiffs usually must prove actual harm (slander per quod).
📌 Example:
 A coworker falsely claims a colleague embezzled money during a meeting.

 If the colleague suffers job loss or reputational harm, this is slander.
✅ Slander cases require proof of damages unless they involve defamation per se.
IV. Public Figures & Actual Malice

Public figures face a higher burden of proof to succeed in defamation cases.
113
3. The “Actual Malice” Standard (New York Times v. Sullivan)
 Public figures must prove that the defendant acted with actual malice.
 “Actual malice” means the defendant: ✅ Knew the statement was false OR
✅ Acted with reckless disregard for the truth.
📌 Example:
 A journalist falsely claims that a senator took bribes.

 The senator must prove the journalist knew it was false or didn’t fact-check
responsibly.
✅ Public figures have a harder time winning defamation cases to protect free speech.
📌 Key Case: New York Times Co. v. Sullivan (1964)
 The Supreme Court ruled that public officials must prove actual malice to prevent
chilling speech.
 This rule was later extended to all public figures.
✅ New York Times v. Sullivan set the precedent for protecting free speech in defamation
cases.
V. Defenses to Defamation
Even if a statement appears defamatory, defendants can argue certain legal defenses.
4. Truth (Absolute Defense)
 A statement cannot be defamatory if it is true.

 Even damaging statements are protected if factually accurate.
📌 Example:
 A newspaper reports that a CEO was convicted of fraud.

 If true, the CEO cannot sue for defamation.
✅ Truth is the strongest defense in defamation cases.
5. Opinion vs. Fact
114
 Opinions cannot be defamatory—only false statements of fact.
 Courts consider whether a reasonable person would view the statement as a fact.
📌 Example:
 A sports analyst says, “I think this coach is the worst in the league.”
 Since it is an opinion, not a factual claim, it is not defamation.
✅ Defamation requires false statements of fact, not opinions.
📌 Key Case: Milkovich v. Lorain Journal Co. (1990)
 A newspaper falsely claimed a wrestling coach lied under oath.

 The court ruled that if the statement implies a false fact, it can be defamatory.
✅ Milkovich clarified the difference between protected opinion and defamatory falsehoods.
6. Privileges (Situations Where Defamation is Allowed)
Some situations protect defendants from defamation claims, even if statements are false.
Absolute Privilege (Total Protection)
 Statements made in court, legislative debates, and official government proceedings

are protected.
📌 Example:
 A witness testifies in court and falsely accuses someone of a crime.

 Even if false, the statement is protected under absolute privilege.
✅ Absolute privilege ensures open discussion in legal and political settings.
Qualified Privilege (Limited Protection)
 Applies in situations where statements are made in good faith and with a duty to
communicate.
 Can be lost if the statement was made with malice.
📌 Example:
 An employer gives a negative but honest job reference about a former employee.
115
 If made in good faith, the employer is protected by qualified privilege.
✅ Qualified privilege protects necessary communications while discouraging reckless

statements.
📌 Key Case: Gertz v. Robert Welch, Inc. (1974)
 A private plaintiff suing a media company only needs to prove negligence.

 Public figures still require actual malice.
✅ Gertz v. Welch confirmed that private individuals have more protection than public
figures.
VI. Policy Considerations in Defamation Law

 Defamation law must balance free speech rights with protecting reputations.
 Public figures must accept more criticism to protect free press.
 Defamation laws must prevent abuse while allowing truthful speech.
Arguments for Stronger Defamation Protections
✅ Encourages responsible speech and reporting.

✅ Protects individuals from reputational harm.
✅ Deters malicious falsehoods.
Arguments for Limiting Defamation Lawsuits
❌ Prevents chilling free speech.

❌ Avoids excessive litigation against journalists.
❌ Encourages open political debate.
✅ Courts balance reputational harm with free speech principles.

✅ Defamation requires a false, published statement that harms reputation.
✅ Public figures must prove actual malice, while private plaintiffs need only show
negligence.
✅ Libel (written) is more serious than slander (spoken).
116
✅ Defenses include truth, opinion, and privilege.
✅ Defamation law balances free speech with reputational harm.
Class 24 – Privacy Torts

pp. 815-823, 832-838, 841-844, 851-858
I. Introduction to Privacy Torts

Privacy torts protect individuals from unreasonable intrusions into their personal lives. Unlike
defamation, which concerns false statements, privacy torts address truthful but intrusive
conduct that violates personal autonomy.
 Privacy rights evolved in response to new technology and media expansion.

 The law recognizes multiple types of privacy violations, not just false statements.
 Courts balance privacy rights against free speech and press freedoms.
✅ Privacy torts limit unwarranted invasions while preserving free expression.
II. Black Letter Law on Privacy Torts

The four privacy torts, first recognized by William Prosser, are:
1. Intrusion Upon Seclusion
 An intentional invasion of someone’s private space or affairs in a way that would be

highly offensive to a reasonable person.
2. Public Disclosure of Private Facts
 Making highly personal, true information public in a way that would be highly
offensive and not of legitimate public concern.
3. False Light
117
 Presenting someone in a misleading way that is highly offensive and creates false
impressions.
4. Appropriation of Name or Likeness (Right of Publicity)
 Using someone’s name, image, or identity for commercial gain without permission.
 Not all invasions of privacy are illegal—courts consider whether the act is highly
offensive.
 Public figures have fewer privacy protections than private individuals.
✅ These torts protect personal dignity and autonomy from unjustified intrusions.
III. Privacy Torts Explained

Each privacy tort addresses a different type of personal invasion.
1. Intrusion Upon Seclusion
 Occurs when someone intentionally invades another’s private space, such as their
home, phone, or personal records.
 The intrusion must be offensive to a reasonable person.
📌 Examples:
✅ Spying on someone with a hidden camera in their home.
✅ Hacking into a person’s private email.
✅ Wiretapping private phone conversations.
📌 Key Case: Shulman v. Group W Productions, Inc.
 A news crew recorded a car accident victim’s private medical rescue.

 The court ruled that recording in a private medical setting was intrusion upon
seclusion.
✅ Intrusion focuses on how information was gathered, not what was published.
2. Public Disclosure of Private Facts
118
 Occurs when highly personal facts are made public in a way that is offensive and
not newsworthy.
 Truth is NOT a defense (unlike defamation).
📌 Examples:
✅ Publishing private medical records without consent.
✅ Revealing a person’s sexual orientation or medical history against their will.
✅ Leaking private financial records.
📌 Key Case: Sidis v. F-R Publishing Corp.
 A former child prodigy sought privacy, but a magazine published a profile exposing
his reclusive life.
 The court ruled that he was still of public interest, so the disclosure was not
actionable.
✅ Newsworthiness is a defense—courts balance privacy with public interest.
3. False Light
 Occurs when a person is portrayed in a misleading way that damages their dignity.
 Similar to defamation but focuses on emotional harm rather than reputational
damage.
 False statements must be highly offensive, but not necessarily defamatory.
📌 Examples:
✅ Editing a photo to falsely suggest someone was involved in illegal activity.
✅ Publishing a misleading headline that implies criminal behavior.
✅ Using a stock photo in a controversial story that falsely implies involvement.
📌 Key Case: Cantrell v. Forest City Publishing Co.
 A newspaper exaggerated details about a grieving widow’s emotions.

 The court ruled that false light applies when a publication creates misleading
impressions.
✅ False light protects against misrepresentations that damage personal dignity.
4. Appropriation of Name or Likeness (Right of Publicity)
 Occurs when a person’s name, image, or identity is used for commercial purposes
without permission.
119
 Often applies to celebrities, but private individuals can also sue.
📌 Examples:
✅ Using a celebrity’s image in an ad without permission.
✅ Imitating a famous person’s voice for marketing purposes.
✅ Selling merchandise with someone’s name or likeness without consent.
📌 Key Case: White v. Samsung Electronics America, Inc.
 Samsung used a robot that resembled Vanna White in an ad.

 The court ruled that even non-literal likenesses can violate publicity rights.
✅ Appropriation protects people’s right to control their identity in commerce.
IV. Defenses to Privacy Torts

1. Newsworthiness
 If information is of public concern, disclosure is not actionable.

 Public figures have a lower expectation of privacy.
📌 Example:
 A newspaper publishes a politician’s history of fraud.

 Since it is newsworthy, it is not an invasion of privacy.
✅ Courts weigh public interest against personal privacy.
2. Consent
 If the plaintiff consented to disclosure, they cannot sue.

 Implied consent may apply in public spaces.
📌 Example:
 A person agrees to a magazine interview about their personal life.

 They cannot later sue for invasion of privacy.
✅ Consent eliminates liability unless obtained fraudulently.
120
3. Public Records Exception
 If information is in public records, publishing it is not an invasion of privacy.
📌 Example:
 A newspaper reports on a person’s criminal conviction, which is a public record.
✅ Courts allow publication of legally accessible information.
V. Policy Considerations in Privacy Law

 Privacy law must balance personal dignity with free speech and press rights.
 Technology increases privacy concerns with mass data collection and surveillance.
 Courts must decide when media attention is legitimate versus intrusive.
Arguments for Stronger Privacy Protections
✅ Prevents emotional harm from unwanted exposure.

✅ Limits corporate and government overreach.
✅ Protects individuals from commercial exploitation.
Arguments for Limiting Privacy Claims
❌ Protects free speech and investigative journalism.

❌ Prevents excessive lawsuits against media outlets.
❌ Encourages open discussion on matters of public interest.
✅ Most courts balance privacy with free speech, ensuring responsible media practices.

✅ Privacy torts protect individuals from wrongful intrusions and disclosures.
✅ Public figures have less protection due to legitimate public interest.
✅ Newsworthiness, consent, and public records exceptions are common defenses.
✅ False light differs from defamation by focusing on misrepresentation, not reputational
harm.
✅ Courts must balance privacy rights with First Amendment freedoms.
121
Class 25 – Economic & Dignitary Torts
📖 Reading Assignment: Tort Law: Responsibilities and Redress (5th ed. 2021)
 Pages 981-987, 991-995, 999-1011

📂 Supplemental Material: Torts PPT Class Spring 25-25.pptx (Not yet uploaded—
proceeding with standard doctrinal structure)
I. Introduction to Economic & Dignitary Torts

Economic and dignitary torts address intentional wrongful conduct that causes financial or
reputational harm. Unlike negligence, these torts require intent or reckless disregard,
making them distinct from traditional personal injury claims.
 Economic torts protect businesses and individuals from wrongful financial

interference.
 Dignitary torts safeguard personal reputation and autonomy.
 These claims are particularly relevant in business disputes and cases involving
abuse of legal process.
✅ Economic and dignitary torts provide legal remedies for wrongful interferences that
extend beyond physical harm.
II. Black Letter Law on Economic & Dignitary Torts

Economic Torts
1. Fraud (Deceit) – A false statement made knowingly to induce reliance, causing financial
harm.
2. Tortious Interference with Contract – Wrongfully inducing someone to breach a valid
contract.
3. Tortious Interference with Business Relations – Wrongfully preventing business
dealings or relationships.
4. Misrepresentation (Negligent or Intentional) – Providing false or misleading
information that causes harm.
5. Misappropriation of Trade Secrets – Using or disclosing confidential business
information without authorization.
122
Dignitary Torts
6. Defamation (Libel & Slander) – False statements that harm reputation (covered in Class
23).
7. False Imprisonment – Unlawfully restricting someone’s movement.
8. Malicious Prosecution – Initiating baseless legal proceedings with improper motives.
9. Abuse of Process – Using legal procedures for an ulterior purpose.
10. Intentional Infliction of Emotional Distress (IIED) – Extreme and outrageous conduct
causing severe emotional distress.
 Economic torts protect fair competition but prohibit wrongful interference.

 Dignitary torts recognize non-physical harm, such as reputational damage and
emotional distress.
✅ These torts ensure accountability for wrongful financial and reputational harm.
III. Economic Torts: Protecting Financial Interests

Economic torts focus on deliberate actions that interfere with business operations, contracts,
or financial stability.
1. Fraud (Deceit)
 Occurs when a defendant intentionally misrepresents a material fact, leading to

financial harm.
 Plaintiffs must show reasonable reliance on the false statement.
📌 Elements of Fraud:
1. False statement of material fact.

2. Knowledge of falsity (scienter).
3. Intent to induce reliance.
4. Actual and justifiable reliance by the plaintiff.
5. Harm suffered as a result.
📌 Example:
 A seller falsely claims a used car has never been in an accident, inducing a buyer to
overpay.
✅ Fraud protects individuals and businesses from financial deception.
123
📌 Key Case: Derry v. Peek (1889)
 A company falsely claimed government approval for a transportation project.

 The court ruled that fraud requires actual knowledge of falsehood or reckless
disregard.
✅ Derry v. Peek established intent as a key element of fraud.
2. Tortious Interference with Contract
 Occurs when a third party knowingly induces a breach of an existing contract.
📌 Elements of Tortious Interference with Contract:
1. A valid contract exists.

2. The defendant knew about the contract.
3. The defendant intentionally caused a breach.
4. The plaintiff suffered damages.
📌 Example:
 A competitor pays an employee to break a contract with their current employer.
✅ Protects contractual relationships from wrongful interference.
📌 Key Case: Lumley v. Gye (1853)
 A theater manager lured an opera singer away from an exclusive contract.

 The court ruled that wrongfully inducing contract breaches is unlawful.
✅ Lumley v. Gye established modern tortious interference principles.
3. Tortious Interference with Business Relations
 Occurs when a defendant disrupts an expected business relationship without

justification.
📌 Example:
 A company spreads false rumors about a competitor to scare away customers.
✅ Business competition is allowed, but unfair interference is not.
124
IV. Dignitary Torts: Protecting Reputation and Autonomy
Dignitary torts address harm to personal honor, dignity, and autonomy.
4. False Imprisonment
 Occurs when someone is unlawfully restrained without legal authority.
📌 Elements of False Imprisonment:
1. Intentional confinement.
2. No legal justification.
3. The plaintiff is aware of the confinement.
📌 Example:
 A security guard wrongfully detains a shopper for suspected theft.
✅ Plaintiffs can sue even if no physical force was used.
📌 Key Case: Whittaker v. Sandford (1912)
 A woman was prevented from leaving a yacht, effectively imprisoning her.

 The court ruled that physical barriers are not required—refusing exit is enough.
✅ False imprisonment includes psychological coercion.
5. Malicious Prosecution
 Occurs when a person initiates a legal action without probable cause and with
malicious intent.
📌 Elements of Malicious Prosecution:
1. Legal action was initiated.

2. No probable cause for the claim.
3. Malicious intent.
4. The plaintiff suffered harm.
📌 Example:
125
 A landlord falsely accuses a tenant of fraud, leading to an unnecessary criminal case.
✅ Prevents abuse of the legal system.
📌 Key Case: Moiel v. Sandlin (1980)
 A businessman was wrongfully sued for fraud without evidence.

 The court found malicious prosecution because the lawsuit lacked merit.
✅ Malicious prosecution protects individuals from legal harassment.
6. Intentional Infliction of Emotional Distress (IIED)
 Occurs when a defendant engages in extreme and outrageous conduct that causes
severe emotional distress.
📌 Elements of IIED:
1. Extreme and outrageous conduct.

2. Intent or recklessness.
3. Severe emotional distress suffered by the plaintiff.
📌 Example:
 A debt collector repeatedly harasses a debtor with threats.
✅ IIED applies when behavior goes beyond social norms.
📌 Key Case: Hustler Magazine v. Falwell (1988)
 A satirical article about a public figure was offensive but not legally actionable.
 The Supreme Court ruled that public figures must show actual malice in IIED claims.
✅ IIED must be based on outrageous conduct, not just offensive speech.
V. Policy Considerations in Economic & Dignitary Torts

 Economic torts must protect business stability while allowing competition.

 Dignitary torts should prevent personal harm without stifling free speech.
126
 Malicious prosecution rules must prevent abusive lawsuits while allowing legitimate
claims.
✅ Courts balance protecting businesses, reputations, and legal fairness.

✅ Economic torts prevent wrongful business and contract interference.
✅ Dignitary torts protect individuals from reputational and emotional harm.
✅ False imprisonment requires intentional confinement.
✅ Malicious prosecution and abuse of process prevent legal harassment.
✅ Policy concerns focus on balancing fair competition and reputational protections.
Class 26 – Products Liability: Design Defect

📖 Reading Assignment: Tort Law: Responsibilities and Redress (5th ed. 2021)Pages 1015-1035
I. Introduction to Products Liability: Design Defect

Design defect claims arise when a product’s inherent design makes it unreasonably
dangerous, even if it is manufactured correctly. Unlike manufacturing defects, which affect
only certain products in a batch, design defects impact the entire product line.
 Manufacturers are strictly liable for products that are defectively designed.
 Courts use different tests to determine whether a design defect exists.
 Liability must be balanced with innovation and economic concerns.
✅ Design defect cases focus on whether the manufacturer could have made the product
safer without unreasonable costs.
II. Black Letter Law on Design Defects

To establish a design defect claim, the plaintiff must prove:
1. The product’s design was unreasonably dangerous.

127
2. A safer alternative design was feasible.
3. The defect caused the plaintiff’s injury.
Three Major Tests for Design Defect
1. Consumer Expectation Test – Does the product perform as a reasonable consumer

would expect?
2. Risk-Utility Test – Does the risk of the product outweigh its utility?
3. Alternative Feasible Design Test – Could the manufacturer have designed the product
more safely?
 Some courts use only one test, while others apply multiple tests to assess design
defects.
 Defendants argue that making products safer would increase costs and limit
functionality.
✅ Design defect claims weigh consumer safety against business and economic concerns.
III. Key Cases on Design Defects (IRAC)

1. Barker v. Lull Engineering Co. (1978)
📌 Issue:
How should courts determine whether a product’s design is defective?
📌 Rule:
A plaintiff may prove a design defect using:
1. The Consumer Expectation Test – If the product fails to perform as a reasonable

consumer expects, it is defective.
2. The Risk-Utility Test – If the risks outweigh the benefits, the product is defective.
📌 Application:
 A construction worker was injured while operating a high-lift loader.

 The worker argued that the loader lacked proper safety features.
 The court ruled that the manufacturer had to prove that the design was not
unreasonably dangerous.
📌 Conclusion:
128
 Manufacturers have the burden of proof to show that their product is not
unreasonably dangerous.
✅ Barker v. Lull Engineering created a two-pronged approach for determining design

defects.
2. Soule v. General Motors Corp. (1994)
📌 Issue:
Is the consumer expectation test appropriate for complex product defects?
📌 Rule:
 The consumer expectation test applies only to defects that consumers can evaluate.
 The risk-utility test is better for complex design defect claims.
📌 Application:
 A driver’s foot was crushed due to a defect in a car’s crash structure.

 The defect was not something an ordinary consumer would evaluate.
 The court ruled that the consumer expectation test was inappropriate—only risk-
utility should be used.
📌 Conclusion:
 Courts should not use the consumer expectation test for complex, technical design
issues.
✅ Soule v. GM limited the use of the consumer expectation test in design defect cases.
3. Camacho v. Honda Motor Co. (1987)
📌 Issue:
Can the lack of a safety feature make a product defectively designed?
📌 Rule:
A product is defectively designed if:
1. A feasible safety improvement exists that could prevent harm.

2. The improvement would not significantly alter the product’s utility or cost.
📌 Application:
129
 A motorcyclist suffered severe leg injuries in a crash.
 He argued that the motorcycle should have had leg guards to prevent such injuries.
 The court ruled that a feasible safety improvement (leg guards) existed, so the
motorcycle design was defective.
📌 Conclusion:
 Manufacturers must incorporate reasonable safety features into their designs.
✅ Camacho v. Honda established that a product’s lack of a safety feature can constitute a
design defect.
IV. Defenses to Design Defect Claims

1. Product Misuse
 If the plaintiff used the product in an unforeseeable way, the manufacturer is not
liable.
📌 Example:
 A person stands on a toolbox designed for storage, causing it to break.1`

 The manufacturer can argue that the misuse was unforeseeable.
✅ Manufacturers are not responsible for highly unusual product misuse.
 If the plaintiff knew about the product’s dangers but used it anyway, they may be
barred from recovery.
📌 Example:
 A motorcyclist removes factory-installed safety guards and later gets injured.
✅ Assumption of risk applies when the plaintiff knowingly disregards safety features.
3. State-of-the-Art Defense
130
 If the product met the best safety standards at the time of sale, the manufacturer
may not be liable.
📌 Example:
 A car manufacturer from the 1990s is sued for not having airbags.
 The company argues that airbags were not standard at the time.
✅ Manufacturers are not expected to predict future safety advancements.
V. Policy Considerations in Design Defect Cases

 Strict liability in design defect cases encourages companies to prioritize safety.

 Overregulation could lead to excessively expensive and restrictive product designs.
 Courts must balance consumer protection with economic feasibility.
Arguments for Expanding Design Defect Liability
✅ Encourages safer product designs.

✅ Holds manufacturers accountable for dangerous designs.
✅ Ensures injured consumers can recover damages.
Arguments Against Expanding Design Defect Liability
❌ Increases product costs.

❌ Encourages frivolous lawsuits.
❌ Hinders innovation and new product development.
✅ Courts balance consumer safety with economic realities.

✅ Design defects affect an entire product line, not just individual units.
✅ Courts use consumer expectation, risk-utility, and feasible alternative design tests.
✅ Barker v. Lull Engineering established a dual test approach for design defects.
✅ Soule v. GM limited the consumer expectation test for complex defects.
✅ Camacho v. Honda found that a lack of reasonable safety features can constitute a defect.
✅ Defenses include product misuse, assumption of risk, and the state-of-the-art defense.
131
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Torts Law Outline – Spring 2025

Class 1 – Introduction to Torts & Overview

I. What is Tort Law?

Tort Law vs. Criminal Law vs. Contract Law

 Tort Law: Provides compensation for private wrongs.

 Who should bear responsibility for harm?

II. Black Letter Law on Torts

III. Categories of Torts

IV. Overview of Negligence

Elements of Negligence (4-Part Test)

A plaintiff must prove all four elements to succeed in a negligence claim:

1. Duty – The defendant owed a legal duty to the plaintiff.

 A store owner owes a duty to customers to maintain safe premises.

 Intent to touch is sufficient for liability, even if harm was unintended.

 A schoolboy lightly kicked another in the leg during class.

Case 2: Palsgraf v. Long Island Railroad Co. (1928)

 Duty is limited to foreseeable plaintiffs within the "zone of danger."

 Negligence liability is limited by foreseeability.

VI. Legal Terms to Know

VII. Policy Considerations

 Tort law is about balancing interests:

Key Policy Debates

 Should courts expand liability for emotional distress?

VIII. Key Takeaways from Class 1

Class 2 – Negligence: General Duty of Care

I. Introduction to Duty in Negligence

 Duty is the legal obligation to act in a certain way toward others.

📌 Class Notes from Prof. CravensTorts PPT Class Spring …:

 Duty is not assumed—it must be justified in each case.

II. Black Letter Law on General Duty of Care

📌 From Class PPTsTorts PPT Class Spring …:

 There is no default "general duty" rule—each case requires analysis.

III. The Reasonable Person Standard in Duty

 A driver owes a duty to pedestrians to stop at crosswalks because it is foreseeable that

✅ If harm is not foreseeable, no duty exists.

IV. Key Cases on General Duty of Care

Case 1: Winterbottom v. Wright (1842)

 Privity of contract was originally required for a duty to exist.

 A stagecoach driver was injured when the coach collapsed.

 The court denied liability to prevent unlimited lawsuits against manufacturers.

Case 2: Thomas v. Winchester (1852)

 A poisonous drug was mislabeled as a harmless medicine.

 The manufacturer was held liable because foreseeable harm existed.

Case 3: MacPherson v. Buick Motor Co. (1916)

 Buick sold a defective car to a dealer, who sold it to MacPherson.

Case 4: Mussivand v. David (1989)

 David had an affair with West, who was married to Mussivand.

 Duty extends to foreseeable victims, even if there is no direct relationship.

V. Policy Considerations in Duty

 Duty is influenced by history, justice, convenience, and social values.

Debates in Duty Law

 Should businesses owe a duty to protect customers from third-party crimes?

VI. Legal Terms to Know

VII. Key Takeaways from Class 2

📌 From Class PPTsTorts PPT Class Spring …:

 Understand the evolution from privity-based duty to foreseeability-based duty.

Class 3 – Negligence: Qualified Duties of

I. Introduction to Qualified Duties of Care

📌 From Prof. Cravens' LectureTorts PPT Class Spring …: