Torts

Course Info

Professor: Unknown Semester: Fall 2015 Year: 1L

Topics Covered

• Introduction: tort goals (efficiency, fairness, deterrence, compensation, loss-spreading)
• The negligence principle: standard of care, reasonable person, Hand Formula
• Role of custom and statutes in negligence analysis
• Proof of negligence: res ipsa loquitur
• Medical malpractice and informed consent
• Duty: affirmative duties, no-duty rules, landowner liability
• Duty: non-physical harm (emotional distress, economic loss)
• Causation: but-for, substantial factor, probabilistic causation, alternative liability, market share
• Proximate causation: foreseeability, eggshell plaintiff, superseding causes
• Defenses: contributory negligence, comparative negligence, assumption of risk
• Strict liability: animals, non-natural use of land, blasting, abnormally dangerous activities
• Products liability: manufacturing defects, design defects, warning defects
• Trespass and nuisance
• Intentional torts: battery, assault, false imprisonment, IIED
• Defenses and privileges: consent, self-defense, necessity
• Damages: compensatory, punitive

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Detailed Outline

1. Introduction to Tort Liability

Recurring goals of tort law:

• Efficient risk allocation: Shift costs to the party best positioned to bear or prevent them
• Loss spreading: Losses calculated into price of products or services
• Compensation: Make victims whole
• Deterrence: Discourage careless conduct, promote safety
• Predictability: Give people a standard to plan around

Three systems contrasted:

• No-liability: Moral hazard (no incentive for safety); unfair to injured parties
• Strict liability: Moral hazard on the other side; penalizes activity — J. Holmes
• Negligence: Middle ground; negligence means there was a cheaper alternative to the accident (Posner)

The American system:

• Common law, state law, judge/jury division of responsibility
• Questions of fact to jury (e.g., speed of car); questions of law to judge (which rule applies)
• Preponderance of evidence standard; plaintiff bears the burden
• Contingent fee system (approx. 1/3 if successful)

Vicarious liability (respondeat superior): Employers liable for employees’ negligent acts within scope of employment; not for independent contractors.

• Birkner Test (Christensen v. Swenson): (1) engaged in employer’s business/duties assigned; (2) conduct within ordinary hours and spatial boundaries; (3) conduct motivated at least in part by purpose of serving employer.

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2. The Negligence Principle

2A. Standard of Care — The Reasonable Person

Reasonably Prudent Person (RPP): External, objective standard — what a hypothetical reasonable person would do under the circumstances.

Rationale for objective standard: Predictable community standard; administrative convenience. Critiques: (1) Sacrifices fairness to the individual; (2) over- and under-deterrence.

Exceptions to objective RPP (subjectivized):

• Physical disability: Held to standard of a person with same disability
• Children: Standard of a child of like age, knowledge, and experience; children too young to comprehend risk cannot be found negligent
• Superior attributes (medical malpractice): If you have skills beyond RPP, held to the higher standard of your profession

Objective RPP maintained (no modification):

• Mental disability
• Old age
• Children engaged in adult activities
• Beginners: lack of competence is no excuse; some jurisdictions allow reasonable-beginner standard with notice

Emergency doctrine: Standard of care is that of a reasonable person in the same sudden, unforeseeable emergency.

Common carriers / dangerous instrumentalities: Historically held to extraordinary care; NY has moved back to RPP (Bethel v. NYC Transit Authority) for administrative convenience.

2B. The Hand Formula (B < PL)

United States v. Carroll Towing Co. (Learned Hand): Negligence occurs when the Burden of precaution (B) is less than the Probability of injury (P) multiplied by the Magnitude of harm (L).

• Balancing tests go to the jury
• Problems: Information costs, immeasurability, and incommensurability of factors
• English rule: Do not create substantial risk (focus on PxL); U.S. rule: Do not create unreasonable risk (we tolerate more risk to advance industry)

2C. The Role of Custom

Custom is relevant but not controlling — a custom might itself be negligent.

• TJ Hooper: No radios on tugboats; entire industry’s custom was negligent
• Trimarco v. Klein: Shatterproof glass in showers
• Custom must relate to the harm sustained and bears on the burden (B) element — shows what is feasible and whether alternatives were known

2D. The Role of Statutes — Negligence Per Se

Four-part test to adopt statute (Restatement 2d §286):

1. Was statute enacted to protect the class to which plaintiff belongs?
2. To protect the particular interest invaded?
3. From the kind of harm that resulted?
4. To protect against the particular hazard that occurred?

Effect of statutory violation — three options:

1. Some evidence of breach (jury weighs it with everything else)
2. Rebuttable presumption of negligence (jury must find negligence unless rebutted)
3. Negligence per se / conclusive presumption — majority rule in NY (Martin v. Herzog)

Key doctrine: The particular hazard need not have been specifically contemplated by the statute; the statute’s zone of apprehension governs (De Haen).

Excuses from per se negligence:

• Necessity, emergency, or incapacity
• Compliance would have increased the chance of harm the statute aimed to address (Tedla v. Ellman — walking with traffic in violation of statute was safer given icy conditions)

Compliance with statute is not a complete defense to negligence — only raises a presumption of due care.

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3. Proof of Negligence

3A. Direct and Circumstantial Evidence

• Direct evidence: Photos, videos (rare in tort)
• Circumstantial evidence: Usually sufficient for prima facie case (Negri)
• Constructive notice: A defect must be visible and apparent and exist long enough that defendant’s employees could discover and remedy it
• Business practices rule: Where defendant’s business practice itself creates a continuous, foreseeable risk of harm (e.g., self-service salad bar), plaintiff need not show actual or constructive notice

3B. Res Ipsa Loquitur

Elements (traditional three-part test):

1. The event does not ordinarily occur without negligence (probability of negligence)
2. The instrumentality of injury was within defendant’s exclusive control (or constructive control)
3. Plaintiff did not contribute to the injury

Key cases:

• Byrne v. Boadle: Barrel of flour falls from warehouse — origin of res ipsa
• McDougald v. Perry: Spare tire falls off truck — classic res ipsa
• Ybarra v. Spangard: Unconscious surgical patient suffers arm injury; all surgical team members subject to res ipsa because: (a) plaintiff in their care while unconscious; (b) monopoly on information; (c) incentive to testify to clear themselves; (d) overturn conspiracy of silence

Procedural effect (varies by state):

• Majority (inference): Jury may but is not required to infer negligence
• Minority (CA — presumption): Must presume negligence; defendant must rebut

Restatement 3d: Fact-finder may infer negligence when (1) accident ordinarily happens as result of negligence and (2) defendant is member of class of actors whose negligence ordinarily causes that result — removes the control element.

3C. Expert Testimony

Required only when the matter is beyond the knowledge of a lay juror. Expert must:

1. Be qualified in the field
2. Be familiar with methods in defendant’s community or similar communities
3. Testify to the standard of care
4. Testify to how defendant deviated from that standard

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4. Medical Malpractice and Informed Consent

Standard of care: National standard (Sheeley) — no longer similar locality rule because medical profession is nationalized, doctors have access to same information, training, and certifications.

Superior attributes rule: Even a lowly resident is held to the same standard as a normal physician (Arpin v. U.S.).

Respected minority rule: Must still respect different types of practices/methods even if minority in the field (Gala v. Hamilton).

Informed consent — two competing rules:

1. Professional rule (NY): What a reasonable doctor would disclose in this community (custom as standard; consistent with malpractice framework)
2. Reasonable patient rule: Material risks and feasible alternatives that a reasonable patient would want to know; breach is failure to disclose when disclosure would not harm patient’s health

Causation under informed consent: Disclosure would have led a reasonable patient to reject or choose a different treatment (objective test, not specific to plaintiff).

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5. Duty: Physical Injuries

5A. General Duty and No-Duty Rules

General rule: Duty to use ordinary care and skill to avoid unreasonable danger.

No affirmative duty to rescue (misfeasance vs. nonfeasance distinction).

Exceptions — affirmative duty to act arises when:

1. Special relationship (common carriers, innkeepers, land possessors open to public, persons with custody of another)
2. Undertaking: Defendant voluntarily takes charge, cannot leave victim worse off (Farwell v. Keaton; Restatement 2d)
3. Reliance: Actor creates situation on which another reasonably relies
4. Non-negligent creation of hazard: Affirmative duty to warn or remove hazard (Simonsen v. Thorin)
5. Non-negligent injury: If defendant’s innocent conduct causes helpless state, duty to exercise reasonable care to prevent further harm
6. Fraud/negligent misrepresentation to a third party (Randi W. v. Muroc Joint USD)

Tarasoff v. Regents of the University of California — Tarasoff duty:

• Elements: (1) Therapist has or should have determined, under applicable professional standards, that (2) patient poses serious danger to identifiable others, then (3) duty to exercise reasonable care to protect foreseeable, identifiable victims (in CA, warn or report)
• Policy tension: Confidentiality of therapeutic relationship vs. public safety; deterrence of harm

Rowland v. Christian analysis — to categorically expand duty, courts consider:

• Foreseeability of harm; degree of certainty plaintiff suffered injury
• Causal connection; moral blame; policy of preventing future harm
• Burden on defendant; consequences to the community; insurance availability

5B. Landowners and Occupiers

Common law categories:

• Trespassers: No permission — duty only to refrain from reckless/wanton harm
  • Exception for children: Attractive nuisance doctrine (Restatement 2d elements)
    1. Landowner knows/should know children likely to trespass
    2. Condition involves unreasonable risk of death or serious bodily harm to children
    3. Children, due to youth, do not realize the risk
    4. Utility of maintaining condition and burden of eliminating are slight compared to the risk
    5. Landowner fails to exercise reasonable care to eliminate danger
  • Exception for known trespassers: Duty to warn of known dangers
• Licensees: Social guests, relatives, gratuitous visitors — duty to warn/protect against known dangers
• Invitees: Business visitors, spaces open to public — duty to use reasonable care to make premises safe, inspect, and fix

Key distinction — licensee vs. invitee: Licensee has mutual intangible (social) benefit; business invitee involves potential tangible/intended exchange of value (Carter v. Kinney).

Defenses: Open and obvious dangers (analogous to contributory fault).

Abolishing common-law categories (modern trend):

• For: Inconsistent exceptions, arbitrary categories, ordinary negligence works in other torts, promotes public safety
• Against: Current law stable and predictable, duty depends on relationship, unlimited liability

Landowner duties to third parties — criminal acts (Posecai v. Walmart):

• Specific harm test; Prior similar incidents test; Totality of circumstances; Balancing (B < PL)

5C. Non-Physical Harm — Emotional Distress

Direct victims:

• Zone of danger test (NY): Plaintiff could have been physically injured; must be in actual danger
• Falzone (NJ): Negligence causes reasonable fear of immediate personal injury + substantial bodily injury or sickness

Indirect victims (bystanders) — Dillon v. Legg (CA, limited by Thing v. La Chusa):

1. Close relation to injured victim (unmarried cohabitants generally excluded in CA)
2. Immediate sensory perception of injury at time it occurs
3. Severe emotional distress (more than disinterested witness)

Loss of consortium: Deprivation of benefits of family relationship (spouse, children — not parents) due to tortfeasor’s act.

Wrongful death: Claim for missed earnings on remainder of life; damages for dependents.

5D. Economic Harm

Traditional rule: Economic damages must piggyback on personal injury or property damage.

Duty to third parties in economic harm (NY — near privity rule):

• Defendant had knowledge of prospective use of information
• Acted to induce plaintiff’s action
• Made representation directly to plaintiff

Accountant liability to third parties:

• Near-privity / Credit Alliance: (1) aware report used for particular purpose; (2) known party intended to rely; (3) some conduct linking accountant to third party
• Restatement §552 (moderate): Identified recipient, reliance, and accountant knew of the particular transaction

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6. Causation

6A. Cause in Fact — But-For Test

But-for (sine qua non): Harm would not have occurred but for defendant’s negligent act.

Probabilistic causation (Stubbs): Where multiple causes exist and defendant would be liable for one, plaintiff must establish with reasonable certainty (not necessarily exclusivity) that defendant’s act was the cause.

Probabilistic harm and damages:

• Better than even chance (>50%): Full recovery (Mauro)
• Less than even (<50%): Proportional recovery (Petriello)

Lost chance doctrine (medical malpractice): Injury is reduction in probability of surviving; damages are proportional to the percentage of survival chance lost, multiplied by the full damage amount (Matsuyama).

Substantial factors: Where multiple causes each sufficient on their own, sufficient to show defendant’s negligence was, more likely than not, a substantial factor in producing injury.

6B. Joint and Several Liability

Alternative liability (Summers v. Tice):

• Conditions: (1) Multiple parties, only one actually caused injury; (2) total number of defendants small; (3) defendants have better access to information; (4) all possible tortfeasors before the court
• Effect: Presumption of liability; burden switches to defendants to rebut

Concurrent liability: Each of multiple causes independently sufficient; each tortfeasor jointly and severally liable.

Concert of action: Defendants acting pursuant to a common plan or design (racing cases).

Enterprise liability: Few organizations comprising entire industry with trade-association standard.

Market share liability (Sindell v. Abbott Laboratories; Hymowitz v. Eli Lilly):

• Applies when: (1) Singular case; (2) manufacturers acting in parallel; (3) producing an identical, generic product; (4) causing latent injury years later
• Each defendant liable in proportion to its market share (generally national)
• CA (Sindell): Exculpation allowed if defendant proves never sold in that market
• NY (Hymowitz): No exculpation; each pays proportion of risk created

6C. Proximate Cause

General rule: Defendant is liable for foreseeable harm; need not foresee exact manner, extent of harm, or victim.

Eggshell plaintiff rule (Benn v. Thomas): Defendant takes plaintiff as found — must compensate for damages far exceeding what an ordinary person would suffer, even if unforeseeable.

• Applies to pre-existing mental conditions (Steinhauser)
• Does NOT apply to suicide or purely emotional harms

Unexpected type of harm:

• Direct causation rule (Polemis): Liability regardless of foreseeability if defendant directly caused harm
• Foreseeability rule (Wagon Mound I): Defendant’s liability depends on reasonable foreseeability of consequent damage — dominant modern rule
• Wagon Mound II: Contributory negligence by dock owner kept them from recovering, but other vessel’s owners (who did not contribute) recovered

Superseding/intervening causes (Derdiarian v. Felix Contracting):

• Intervening negligent act generally does NOT break chain of causation if type of harm is foreseeable
• Chain IS broken if: Intervening actor has knowledge of risk (Catlin); intervening act is intentional, reckless, or criminal AND not foreseeable principal hazard of original negligence (Doe v. Manheimer; Restatement 2d §442B)
• Exception: Intervening intentional/criminal act is both foreseeable AND the principal hazard created by original negligence

Unexpected victims — Palsgraf v. Long Island Railroad:

• Cardozo majority: No general duty; duty is specific to each person to whom a reasonable person would foresee risk of harm; plaintiff outside the zone of danger had no duty owed to her
• Andrews dissent: Duty to society at large; proximate cause is a question of practical politics, not logic; factors include natural/continuous sequence, substantial factor, direct connection without intervening causes, foreseeability, remoteness in time and space

Danger invites rescue (Cardozo doctrine): Rescuer injured in act of rescue has claim against defendant; rescue is a foreseeable consequence of negligent act. Not applicable once action is deliberate, reflective, and removed from the emergency situation.

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7. Defenses

7A. Contributory and Comparative Negligence

Contributory negligence (old rule): Completely bars recovery. Defendant must prove plaintiff’s duty, breach, causation, and damages.

Limitations on contributory negligence:

• Recklessness/willful misconduct by defendant: Plaintiff recovers all
• Last clear chance doctrine (Davies v. Mann): Defendant had actual knowledge of plaintiff’s peril, sufficient time to avoid harm, and failed to act — plaintiff recovers despite own negligence

Comparative Negligence (modern rule):

• Pure system: Plaintiff 25% at fault, defendant 75%; loss = $100\to defendantowesplaintiff$75
• Modified system (majority): Recovery if plaintiff is less than (or equal to) 50% at fault
• Uniform Act: “Pure” version with joint and several liability
• Iowa Act: Modified (plaintiff < 50%); limits joint and several liability

Contribution among defendants: Settling defendants extinguish claims; non-settling defendants can seek contribution.

Avoidable consequences: Limits recovery for damages caused by plaintiff’s failure to mitigate after defendant’s negligent act (e.g., failure to seek medical attention, failure to follow medical advice).

Anticipatory avoidable consequences: Failure to take precautions before injury (e.g., failure to wear seatbelt or helmet) — reduces recovery.

7B. Assumption of Risk

Express assumption of risk (Hanks v. Powder Ridge):

1. Was the right expressly waived?
2. Was the agreement clear and unambiguous?
3. Did the nature and risk fall within the terms of the waiver?
4. Is it against public policy to enforce the agreement?

Tunkl factors (CA minority): Business suitable for regulation; service of great public importance; open to any member of public; essential service with bargaining power advantage; standardized adhesion contract; person or property subject to risk of defendant’s negligence.

Only ordinary negligence can be waived — not gross negligence or recklessness.

Implied assumption of risk (Murphy v. Steeplechase Amusement Co. — Cardozo): Elements: (1) Plaintiff has knowledge of facts constituting danger; (2) knows activity is dangerous; (3) appreciates nature and extent of danger; (4) voluntarily exposes herself to the danger.

Professional rescuer’s rule: Professional rescuers barred from recovering against landowner for risks inherent in their employment. Originally based on assumption of risk; now treated as a no-duty rule. Does not apply to volunteer firefighters.

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8. Strict Liability

8A. Animals and Non-Natural Use of Land

Wild animals: Strict liability regardless of care exercised.

Domestic animals: Strict liability if owner knew of vicious propensity (the “one bite rule”).

Non-natural use of land (Rylands v. Fletcher — Cairns rule):

• Absolute duty to keep dangerous things from escaping; applies to non-natural uses of land
• Blackburn rule (not adopted in U.S.): If you bring something naturally there and it escapes
• U.S. generally does not apply Rylands without abnormally dangerous activity analysis

Blasting cases (Spano v. Perini):

• Right to use land, qualified by right of others to maintain safety over their property
• Sic utere tuo — use as your own so as not to injure another’s property
• Concussion damage from blasting is strict liability; moves away from direct/indirect harm distinction

8B. Abnormally Dangerous Activities

Restatement 2d §520 factors — all six considered:

1. Existence of high degree of risk of harm to persons or property of others
2. Likelihood that the harm will be great
3. Inability to eliminate risk by exercise of reasonable care
4. Not a matter of common usage
5. Inappropriateness to the location where carried out
6. Value to the community outweighed by dangerous attributes

Restatement 3d: Removes factors (5) and (6); activity creates foreseeable and highly significant risk of physical harm even when reasonable care exercised AND activity is not one of common usage.

Indiana Harbor Belt RR v. American Cyanamid: Court declined to apply strict liability to transport of hazardous chemical by rail — accident may have been due to lack of due care, adequately deterred by negligence; strict liability on manufacturers does not create incentives for carriers. The hazardousness of the activity of transporting through populated areas, not inherent in the chemical, was the issue.

Policy reasons FOR strict liability:

• Strong incentives to safety regardless of due care
• Loss spreading: Who can absorb, spread, or recoup the loss?
• Loss avoidance: Who is the lowest-cost avoider?
• Loss allocation: Internalize rather than externalize costs
• Corrective justice; reciprocity of risk; distributive justice

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9. Products Liability

9A. Overview and Historical Development

MacPherson v. Buick Motor Co: Removes privity barrier; duty runs to foreseeable users.

J. Traynor concurrence in Escola v. Coca Cola Bottling Co. (1944): Policy favors strict liability: (1) loss spreading/allocation; (2) deterrence; (3) inadequacy of negligence; (4) inadequacy of warranty; (5) mass marketing creates expectations of safety.

Greenman v. Yuba Power Products (Traynor, 1963): Manufacturer strictly liable in tort when article placed on market, knowing it will be used without inspection for defects, has a defect causing injury.

Restatement 2d §402A: Defective condition unreasonably dangerous to ultimate user; even if seller exercised all possible care; even without privity of contract. (Note: “unreasonably dangerous” language criticized as weakening strict liability.)

Restatement 3d §2: Three categories of defect:

1. Manufacturing defect
2. Design defect
3. Inadequate instructions or warnings

Bystanders included: If anything, bystanders entitled to greater protection than consumers (Elmore v. American Motors).

9B. Manufacturing Defects

Restatement 3d §2: Product departs from its intended design even though all possible care was exercised — strict liability, no negligence needed.

9C. Design Defects

Cronin (CA, 1972): Rejects “unreasonably dangerous” requirement; only defect and proximate cause needed (returns to strict liability).

Restatement 3d §2: Design defect when foreseeable risks could have been reduced or avoided by a reasonable alternative design (RAD), and omission of RAD renders product not reasonably safe — negligence-like standard.

Tests:

Ordinary consumer expectation test (Barker prong 1 — CA):

1. Product failed to perform as safely as ordinary consumer would expect
2. Defect existed when product left manufacturer’s possession
3. Defect was legal cause of plaintiff’s enhanced injury
4. Product used in a reasonably foreseeable manner

“Excessive preventable danger” test (Barker/Soule prong 2 — CA minority): When plaintiff proves B < PL, burden shifts to defendant; experts necessary.

Ortho/Wade/Camacho test (CO majority — closer to negligence): (1) Utility to user/public; (2) safety aspects; (3) availability of substitute product; (4) ability to eliminate unsafe character without impairing utility; (5) user’s ability to avoid danger by care; (6) user’s awareness of inherent dangers; (7) feasibility of loss spreading.

Crashworthiness doctrine: Motor vehicle manufacturer has duty to minimize injurious effects of a foreseeable collision by employing common-sense safety features.

Reasonable alternative design (RAD): Must be compared with like products; cannot compare wholly different vehicle types (Dreisonstok v. VW).

9D. Warning Defects

Restatement 3d §2: Inadequate warning when foreseeable risks could have been reduced or avoided by reasonable warnings, and omission renders product not reasonably safe — negligence-like.

No warning required: When danger is patent (obvious) to reasonable user.

Pittman factors for adequacy of warning:

1. Warning must adequately indicate scope of danger
2. Must reasonably communicate extent/seriousness of harm from misuse
3. Physical aspects of warning must alert a reasonably prudent person (prominence, location)
4. Simple directive warning may be inadequate if it fails to indicate consequences of non-compliance
5. Means of conveying warning must be adequate

Heeding presumption: If warning were adequate, presumed user would have heeded it — plaintiff need not prove causation; burden shifts to defendant to rebut.

Learned intermediary doctrine: Drug manufacturer excused from warning each patient when it properly warns prescribing physicians. Disappearing because of direct-to-consumer marketing and managed care.

Perez v. Wyeth (NJ) hybrid rule: Learned intermediary doctrine does not apply to drugs directly marketed to patients.

State of the art defense: At time of sale, risks could not have been discovered by reasonable testing prior to marketing. Burden on defendant to prove state of knowledge at time of distribution.

9E. Defenses to Products Liability

• Contributory negligence/comparative responsibility: Negligent failure to discover or guard against defect is NOT a defense (Restatement comment n); other plaintiff conduct subject to comparative responsibility
• Disclaimers and waivers do not bar products liability claims (Restatement 3d §18)
• Statutes of repose: Bar claims beyond a certain period after first sale
• Unforeseeable misuse/modification: If third-party modification made product unsafe, seller relieved of liability unless modification is foreseeable and product was defective as sold

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10. Trespass and Private Nuisance

10A. Trespass

• Intentional entry on another’s land — no actual damages required (nominal damages available)
• Intent required: Intent to walk/enter land, even without intent to trespass
• Unintentional: Actual harm required (Restatement 2d §165)
• Martin v. Reynolds Metals Co: Invisible particles (fluoride) from smelter constitute trespass if they cause harm — direct invasion theory

10B. Private Nuisance

Elements (Restatement 2d §822):

1. Intentional act by defendant (no need to intend the harm, only the conduct)
2. Unreasonable under the circumstances
3. Invasion of plaintiff’s interest in use and enjoyment of land

Unreasonableness — two grounds (§826): (a) Gravity of harm outweighs utility of actor’s conduct — balancing factors:

• Gravity: extent, character, social value of use invaded, suitability of locality, burden of avoiding
• Utility: social value of primary purpose, suitability of locality, impracticability of preventing invasion

(b) Harm is serious and financial burden of compensating would not make continuation of conduct infeasible.

Intent standard (§825): Knowledge that conduct is invading or substantially certain to invade another’s interest. Virtually all ongoing industrial pollution becomes intentional after the initial invasion.

Boomer v. Atlantic Cement Co. (NY 1970):

• Rule: Injunction if damage not “insubstantial” (>$100/yr)—BUTcementcompanyis$45M and employs 300 people
• Holding: Grant injunction conditioned on payment of permanent damages = diminution in land value
• Effect: Servitude on land — right to pollute forever; runs with land
• Coase Theorem: In world of no transaction costs, liability rule doesn’t matter; in imperfect competition, impose liability on least-cost solution

Vincent v. Lake Erie Transportation Co.: Private necessity is a privilege but defendant must still pay damages for intentional damage to plaintiff’s property.

Remedies:

1. Property rule for plaintiff: Injunction granted — nuisance stops (Estancias Dallas Corp. v. Shultz)
2. Liability rule for plaintiff: Damages for plaintiff (Boomer)
3. Property rule for defendant: Injunction denied; nuisance continues with impunity
4. Liability rule for defendant: Plaintiff can sue but only for damages (Spur Industries v. Del E. Webb — “coming to the nuisance” defense; plaintiff-developer must pay feedlot to move)

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11. Intentional Torts

11A. Battery

Elements:

1. Act
2. Intent to cause harmful or offensive contact (intent to cause contact, not necessarily damage; knowledge to substantial certainty suffices — Garratt v. Dailey)
3. Harmful or offensive contact results (“offensive” judged by normal social standards, context-dependent; not unduly sensitive person — Wishnatsky v. Huey)
4. Cause in fact
5. Proximate cause

• Damages: Nominal; actual damages not required; no proof of malice needed for punitive damages

Contact with object plaintiff is grasping counts as contact with body (Picard v. Barry Pontiac-Buick).

11B. Assault

Elements:

1. Physical act of threatening nature or offer of corporal injury
2. Creates reasonable apprehension (not necessarily fear)
3. Of imminent bodily harm

Conditional threats generally not assault. Words alone usually insufficient. Transferred intent applies (victim to victim; tort to tort — among battery, assault, false imprisonment, trespass to land, trespass to chattel).

11C. False Imprisonment

Elements:

1. Intent to confine against plaintiff’s will
2. Actual confinement (geographic limits, no means of escape, awareness of confinement)

Defense: Shopkeeper’s privilege to detain suspected shoplifter (NY Gen. Bus. Law §218): Reasonable manner, reasonable time, reasonable grounds.

11D. Intentional Infliction of Emotional Distress (IIED)

Elements:

1. Intentional or reckless conduct
2. Conduct is outrageous or intolerable (goes beyond insults/abuses of ordinary life; average person would exclaim “Outrageous!“)
3. Causal relation between conduct and distress
4. Severe emotional distress

• No bodily injury required (State Rubbish Collectors Ass’n v. Siliznoff; Womack v. Eldridge)
• Person of reasonable and ordinary sensitivity — no eggshell plaintiff

Constitutional defense (Hustler Magazine v. Falwell; Snyder v. Phelps):

• IIED does not protect public figures from publications without showing false statement of fact made with actual malice (knowing falsity or reckless disregard)
• 1st Amendment protects parody/satire of public figures when involving speech on matters of public concern

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12. Defenses and Privileges

12A. Consent

Express or implied (e.g., boxing, vaccination line). Only ordinary negligence waivable — not gross negligence or recklessness.

Reasonable person test may apply (O’Brien v. Cunard: Doctor inoculating woman standing in vaccination line; implied consent from conduct).

12B. Self-Defense and Defense of Others

Self-defense elements: Reasonable fear; own life in danger or great bodily harm; imminent; proportionate force; reasonable belief.

Defense of others: Same standard, but may be liable if mistaken.

Defense of property: Cannot use deadly force (e.g., spring guns). Standard: Apparent necessity + reasonable force.

12C. Necessity

Private necessity (Vincent v. Lake Erie Transportation Co.):

• Privilege to enter property to save life or property
• Obligation to pay damages for intentionally damaging property of another in order to save own property or life
• Compare Ploof v. Putnam: Dock owner cannot unmoor plaintiff’s boat during storm when plaintiff claiming private necessity

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13. Damages

13A. Compensatory Damages

Pecuniary:

• Medical costs (past and future)
• Lost income (past and future) — adjusted for taxes, raises, probability of firing, fringe benefits, expenses, retirement age, inflation
• Lost earning capacity

Non-pecuniary:

• Pain and suffering — intangible; “shocks the conscience” test for excessiveness (Seffert v. LA Transit Lines)
• Per diem estimates generally viewed as prejudicial (speculative)

13B. Punitive Damages

Purposes: (1) Specific deterrence; (2) general deterrence.

BMW v. Gore (1996) factors:

1. Reprehensibility (lives lost, property damaged)
2. Disparity between punitive award and compensatory damages
3. Punishments in comparable cases

State Farm v. Campbell (2003): Presumption against more than single-digit ratio of punitive:compensatory — not an absolute rule.

Rationale for higher multiples (Mathias v. Accor Economy Lodging): When tortfeasor is caught only some of the time, must be punished proportionally more to achieve effective deterrence.

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Key Doctrines

• Negligence
• Negligence Per Se
• Res Ipsa Loquitur
• Proximate Cause
• Comparative Negligence
• Strict Liability
• Products Liability
• Battery
• Intentional Infliction of Emotional Distress (IIED)
• Private Nuisance

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Key Cases

Case	Rule / Significance
United States v. Carroll Towing Co.	Hand Formula (B < PL) for negligence
Adams v. Bullock	Standard of care; contributory negligence on plaintiff
Martin v. Herzog	Violation of statute = negligence per se (majority rule)
Tedla v. Ellman	Exception to negligence per se when compliance increases harm
Byrne v. Boadle	Origin of res ipsa loquitur — barrel falling from warehouse
McDougald v. Perry	Res ipsa — spare tire falling off truck
Ybarra v. Spangard	Res ipsa extended to surgical team caring for unconscious patient
Picard v. Barry Pontiac-Buick	Contact with object plaintiff holds counts as battery contact
Tarasoff v. Regents of the University of California	Therapist’s duty to warn identifiable third parties of patient’s threats
Palsgraf v. Long Island Railroad	Duty limits to foreseeable plaintiffs (Cardozo); Andrews’ “duty to society” dissent
Wagon Mound I	Foreseeability rule for proximate cause replaces direct causation rule
Derdiarian v. Felix Contracting	Intervening negligent act does not break chain if type of harm foreseeable
Benn v. Thomas	Eggshell plaintiff rule — take plaintiff as found
Summers v. Tice	Alternative liability — burden shifts to defendants where both could be responsible
Sindell v. Abbott Laboratories	Market share liability for DES manufacturers
Hammontree v. Jenner	Negligence, not strict liability, governs sudden medical emergency while driving
Rylands v. Fletcher	Non-natural use of land — strict liability for escape of dangerous things
Indiana Harbor Belt RR v. American Cyanamid	Abnormally dangerous activity analysis; negligence sufficient for hazmat transport
Spano v. Perini	Blasting concussion damage — strict liability; abandons direct/indirect distinction
MacPherson v. Buick Motor Co	Removes privity barrier for products liability
Escola v. Coca Cola Bottling Co.	Traynor concurrence advocating strict products liability; res ipsa for manufacturing defects
Greenman v. Yuba Power Products	Strict products liability in tort; landmark Traynor opinion
Martin v. Reynolds Metals Co	Invisible fluoride particles = trespass if causing harm
Boomer v. Atlantic Cement Co.	Nuisance — liability rule remedy (permanent damages); not injunction
Vincent v. Lake Erie Transportation Co.	Private necessity is a privilege but requires payment of damages
Garratt v. Dailey	Knowledge to substantial certainty satisfies intent for battery
State Rubbish Collectors Ass’n v. Siliznoff	IIED recognized without bodily injury (Traynor)
Womack v. Eldridge	Virginia recognizes IIED without bodily injury
Hustler Magazine v. Falwell	1st Amendment defense to IIED for public figures; actual malice required
Snyder v. Phelps	Westboro Baptist Church — 1st Amdt protects speech on matters of public concern
O’Brien v. Cunard	Implied consent to battery from plaintiff’s conduct

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Exam Approach

Step 1: Identify the Tort(s)

• Intentional tort? (Battery, assault, FI, IIED) → Intent required
• Negligence? → Duty → Breach → Causation → Damages
• Strict liability? → Abnormally dangerous activity or products liability

Step 2: Negligence Prima Facie Case

Duty:

• General duty to all? Any no-duty or special-duty rules?
• Affirmative duty exceptions: Special relationship; undertaking; reliance; non-negligent creation of hazard
• Landowner category: Trespasser / licensee / invitee; attractive nuisance for children
• Third-party duty: Near-privity (economic loss); Tarasoff (dangerous patients); foreseeability (Rowland)

Breach:

• Reasonable prudent person (RPP) standard; exceptions for children, physical disability, professionals
• Hand Formula (B < PL)
• Custom: Relevant not controlling
• Statutes: Four-part test for adoption; per se vs. presumption vs. some evidence; Tedla exception
• Res ipsa loquitur: (1) not ordinary without negligence; (2) defendant’s exclusive control; (3) plaintiff not contributing; Ybarra (surgical team); procedural effect varies by state

Causation:

• But-for test; substantial factors for multiple sufficient causes
• Alternative liability (Summers v. Tice): All defendants before court; burden shifts
• Market share liability (Sindell): Parallel manufacturers; generic product; latent injury
• Lost chance doctrine (Matsuyama): Medical malpractice; proportional damages
• Probabilistic causation: >50% → full recovery; <50% → proportional

Proximate Cause:

• Foreseeability rule (Wagon Mound I) — dominant standard
• Eggshell plaintiff: Take plaintiff as found (Benn v. Thomas)
• Intervening causes: Foreseeable negligent act does not break chain (Derdiarian); intentional/criminal act breaks chain unless it was the foreseeable principal hazard
• Unexpected victims: Palsgraf — Cardozo (zone of danger) vs. Andrews (societal duty)

Damages:

• Compensatory (pecuniary + non-pecuniary)
• Punitive (BMW v. Gore factors; single-digit ratio presumption — State Farm v. Campbell)

Step 3: Defenses

• Contributory negligence (full bar — minority of states)
• Comparative negligence (pure or modified — majority); avoidable consequences; anticipatory avoidable consequences
• Assumption of risk (express — Tunkl factors; implied — Murphy v. Steeplechase)
• Last clear chance (if contributory negligence jurisdiction)

Step 4: Strict Liability Issues

• Abnormally dangerous activity: All six Restatement 2d §520 factors
• Products liability: Manufacturing defect (departs from intended design); design defect (RAD available — Restatement 3d; consumer expectation — Barker; Wade/Ortho factors); warning defect (Pittman factors; heeding presumption; learned intermediary rule)

Step 5: Intentional Torts

• Battery: Act + intent + harmful/offensive contact; Garratt (knowledge = intent)
• IIED: Intentional/reckless + outrageous + causation + severe distress; Hustler constitutional defense for public figures
• Defenses: Consent (express/implied; O’Brien); self-defense; defense of others; necessity (Vincent — must pay damages)

Step 6: Nuisance

• Private nuisance: (1) Intentional act; (2) unreasonable (balance gravity vs. utility); (3) invasion of use/enjoyment
• Remedy choice: Property rule (injunction) or liability rule (damages); coming-to-the-nuisance defense
• Boomer: NY uses permanent damages (liability rule) to preserve economic activity