Torts II) NEGLIGENCE

Duty
Three Kinds of Torts I. Objective Standard-
1. Intentional Harms RPP- always
2. Unintentional- NEGLIGENT applicable
3. Unintentional- Strict Liability II. Duty to Rescue
Types of Damages III. Owners and
o Nominal Occupiers
o Compensatory IV. Gratuitous
o Punitive Undertaking
V. Contracts
I) Intentional Harms VI. Special Relationships

Six Intentional Torts- Think FITBAT Breach

A. Elements- 1. RPP
Act 2. Risk Assessment—
Intent The Learned
Causing Hand Formula
----------- 3. Custom
Without Consent or Privilege 4. Statute
5. Res Ipsa
B. Defenses- Consent/ Privelege Causation
I. Consensual Actual
Defenses Tests= But-For &
II. Mental Disability Substantial Factor
III. Self-Defense Proximate
IV. Defense of Damages- Plaintiff’s Harms
Property Defenses
V. Necessity Contributory Negligence &
Last Clear Chance
Assumption of Risk

INTENTIONAL TORTS
I. False Imprisonment
False imprisonment does not occur when a person is detained within the immediate vicinity of a
merchant’s premises if he is detained in a reasonable manner for not more than a reasonable
length of time, and if there are reasonable grounds, as measured by an objective standard, to
believe the person detained was committing or attempting to commit larceny of goods for sale on
the premises. Coblyn v. Kennedy's, Inc.

II. Intentional Infliction of Emotional Distress

An action for intentional infliction of emotional distress may exist when conduct is outrageous or
extreme, is performed by a person intending to cause actual or constructive harm to the victim,
and actually results in such physical or mental harm. Wilkinson v. Downton

III. Trespass to Land

In an action to recover for assault and battery, the plaintiff must show that either the intent
behind the defendant’s actions is unlawful or the defendant’s conduct itself is unlawful. Vosburg
v. Putney
Every unauthorized, and thus unlawful, entry onto the land of another constitutes a trespass
regardless of whether actual damage is caused to the land. Dougherty v. Stepp

IV. Offensive Battery

Punitive damages may be awarded if tortious conduct involves malice, willfulness, wantonness,
outrage, and indignity. Alcorn v. Mitchell
V. Assault
No physical harm is required to find liability for assault. I. de S. and Wife v. W. de S.

Assault requires intent to create an apprehension of harmful or offensive conduct in the victim.
Tuberville v. Savage

VI. Defenses
A. Consensual Defenses
An absence of evil intent or negligence on the part of a defendant does not operate as a defense
to the civil tort of assault and battery. Mohr v. Williams

Prior to a medical procedure, a physician is under a duty to disclose all risks that a reasonable
person would find significant in making an informed decision whether to undergo the specific
procedure. Canterbury v. Spence

A promoter of an illegal event may be liable for torts suffered by participants in the event even if
those individuals consented to participation. Hudson v. Craft

B. Mental Disability
If a legally insane person causes intentional damage to the person or property of another, he is
liable for that damage in the same circumstances in which a sane person would be liable.
McGuire v. Almy
 C. Self-Defense
Self-defense may constitute a defense to liability for intentional torts, even if the actions taken by
a defendant in self-defense result from a mistaken but reasonable belief that the defendant is
under attack. Courvoisier v. Raymond

D. Defense of Property
Although some force may be used to defend a property interest, the force must not be intended
solely to inflict bodily harm upon trespassers. Bird v. Holbrook

E. Necessity
Necessity caused by an “act of God” or other disaster resulting in an inability to control
movements justifies entries upon land and interferences with personal property that would
otherwise have been trespasses. Ploof v. Putnam

A party who damages the property of another while acting out of private necessity must
compensate the property owner for the resulting damage. Vincent v. Lake Erie Transportation
Co.
 NEGLIGENCE CASES
DUTY
THE DUTY TO RESCUE
A landowner only has a duty to not intentionally harm or interfere with a trespasser on his
property, but has no legal duty to warn the trespasser against hidden or secret dangers arising
from the condition of the premises, or to protect the trespasser from any harm he may experience
from his own actions or the actions of others. Buch v. Amory Manufacturing Co.
A physician does not have a legal duty to provide medical assistance whenever and to whomever
he is asked. Hurley v. Eddingfield
A defendant’s act of omission of a legal duty owed to a plaintiff may be the proximate cause of
the plaintiff’s injuries and thus result in negligence liability for the defendant. Montgomery v.
National Convoy Trucking Co.
LANDOWNERS AND OCCUPIERS
If an individual is a trespasser on a piece of land, the landowner only has a legal duty to avoid
willful harm to the trespasser, and nothing more. Robert Addie & Sons (Collieries), Ltd. v.
Dumbreck
The proper test to be applied for determining the liability of a landowner is whether in the
management of his property he has acted as a reasonable man given the probability of injury to
others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may have some
bearing on the question of the landowner’s liability, this status alone is not determinative.
Rowland v. Christian
GRATUITOUS UNDERTAKINGS
A person performing a gratuitous promise to carry another’s goods may face liability for
negligent performance of the promise. Coggs v. Bernard
A company’s failure to undertake voluntary but well-established security measures, when the
company has created an expectation of such security measures in the public, may constitute
negligence. Erie Railroad Co. v. Stewart
(1) A contract to supply services to a city is generally not for the benefit of individual residents
such that a resident may sue for the contract’s breach. (2) An individual may not be liable for
negligence based on an omission if the failure to act itself does not constitute the commission of
a wrong or advance harm. H.R. Moch Co. v. Rensselaer Water Co.
SPECIAL RELATIONSHIPS
When a landlord leases portions of a building to tenants and maintains control over parts of the
building for common use, the landlord has a legal duty to exercise reasonable care to minimize
the risk to tenants of foreseeable criminal acts committed by third parties on the entire premises
and particularly in the common areas. Kline v. 1500 Massachusetts Avenue Apartment Corp.
When a therapist learns from his patient about intent to do harm to a third party, the therapist
has a duty to take reasonable precautions given the circumstances to warn the potential victim of
danger. Tarasoff v. Regents of University of California

BREACH
Reasonable Person Rules
A person has a legal duty to use his or her property with the same level of ordinary care that
would be exercised by a reasonable person. -Vaughan v Menlove
Liability for comparative negligence of a child is judged by the standard of care usually
exercised by an ordinary child of his age or maturity. -Roberts v Ring
Minors are entitled to be judged by a negligence standard commensurate with their age,
experience, and wisdom only when engaged in activities appropriate to their age, experience,
and wisdom. -Daniels v Evans
Insanity may be a defense to liability for negligence if an individual is suddenly overcome
without forewarning by a mental disability or disorder that makes him incapable of conforming
his conduct to the standards of a reasonable man under like circumstances. -Breunig v. American
Family Insurance Co.
The standard of care required of a person with a disability is that of the level of care which a
reasonable person under the same or similar disability would exercise under the circumstances.
Fletcher v. City of Aberdeen
In a negligence claim, a wealthy person is not required to exercise a higher level of care than a
less wealthy person. Denver & Rio Grande R.R. v. Peterson
Calculus of Risk Rules
A defendant may not be liable for negligence if the defendant does what a person taking
reasonable precautions would do under the circumstances. Blyth v. Birmingham Water Works
Negligence liability involves a balancing of the societal interests involved in each case to see
whether the actor should be held liable for the natural consequences of his conduct under the
circumstances. Osborne v. Montgomery
An individual exercising the appropriate standard of care given the circumstances is not liable
for any incidental damages occurring to others from his conduct. Cooley v. Public Service Co.
Liability for negligence due to failure to take safety precautions exists if the burden of taking
such precautions is less than the probability of injury multiplied by the gravity of any resulting
injury, symbolized by B < PL = negligence liability. United States v. Carroll Towing Co.
A common carrier owes a duty of utmost care and the vigilance of a very cautious person
towards its passengers, and is required to do all that human care, vigilance, and foresight
reasonably can do under all the circumstances. Andrews v. United Airlines
Custom Rules
The standard of care for business practices is that of the average prudent man engaged in that
particular trade considering the usages, habits, and ordinary risks of the business. Titus v.
Bradford, B. & K. R. Co.
Industry custom is not a defense to gross negligence. Mayhew v. Sullivan Mining Co.
Under Puerto Rico law, to demonstrate a prima facie case of medical malpractice, a plaintiff
must demonstrate the basic norms of knowledge and medical care applicable to general
practitioners or specialists, proof that the medical personnel failed to follow these basic norms
in the treatment of the patient and a causal relation between the act or omission of the physician
and the injury suffered by the patient. Lama v. Borras
In Nebraska, a physician does not deviate from the legal standard of care by considering the
risks and effects of interrupting a patient’s particular course of treatment. Murray v. UNMC
Physicians
Prior to a medical procedure, a physician is under a duty to disclose all risks that a reasonable
person would find significant in making an informed decision whether to undergo the specific
procedure. Canterbury v. Spence
Statutes and Regulations Rules
If a statute or municipal ordinance imposes upon an individual a duty to protect or benefit
others, and he neglects to perform that duty, the individual is liable for negligence per se and
must pay damages for injuries that are proximately caused by his actions if they are of the type
the statute was designed to prevent. Osborne v. McMasters
An omission, or failure to perform an act required by statute, constitutes negligence per se.
Martin v. Herzog
A statute does not contain an implied private right of action if a private right of action would be
inconsistent with the legislative scheme. Uhr v. East Greenbush Central School District
Res Ipsa Loquitor Rules
If injury of a type that does not typically occur without negligence does occur, negligence is
presumed from the mere fact of the occurrence. Byrne v. Boadle
Negligence on the part of a defendant may be presumed from the mere occurrence of an accident
if the accident is of a kind which ordinarily does not occur in the absence of someone’s
negligence, is caused by an agency or instrumentality within the exclusive control of the
defendant, and is not due to any voluntary action on the part of the plaintiff. Colmenares Vivas
v. Sun Alliance Insurance Co.
Where a plaintiff receives unusual injuries while unconscious and in the course of medical
treatment, all those defendants who had any control over his body or the instrumentalities that
might have caused the injuries may be held liable in an action based on res ipsa loquitur.
Ybarra v. Spangard

CAUSATION
I. ACTUAL CAUSE
But-For Case Rules
A defendant’s actions must be the cause in fact of a plaintiff’s injuries for the defendant to be
held liable for those injuries. New York Central Railroad Co. v. Grimstad
If a negligent act is deemed wrongful because that act increases the chances that a particular
type of accident will occur, and a harm of that very sort does occur, there is adequate support for
a finding by the trier of fact that but for the negligent act, the harm would not have occurred.
Zuchowicz v. United States
Multiple Causes/ Joint and Several Liability Cases
If two parties were equally negligent and only one of the parties has been found liable and
forced to pay damages to a victim, the party who paid the damages may not seek indemnification
from the other negligent party. Union Stock Yards Co. of Omaha v. Chicago, Burlington &
Quincy Railroad Co.
Under the modified doctrine of equitable indemnity, a concurrent tortfeasor may obtain partial
indemnity from other concurrent tortfeasors on a comparative fault basis. American Motorcycle
Association v. Superior Court
When two or more human entities both proximately cause injury to a plaintiff, and only one is
identified, the plaintiff may recover the full amount of damages suffered from the one known
wrongdoer. Kingston v. Chicago & N.W. Ry. Co.
ALTERNATIVE LIABILITY -- Under the doctrine of alternative liability, two independent
tortfeasors may be held jointly liable if it is impossible to tell which one caused the plaintiff's
injuries, and the burden of proof will shift to the defendants to either absolve themselves of
liability or apportion the damages between them. Summers v. Tice
MARKET SHARE LIABILITY -- If multiple manufacturers of fungible goods are named as
defendants in a negligence action and it cannot be determined which manufacturer caused the
precise harm complained of, the manufacturers will be held proportionately liable in accordance
with their market share in the market of the good that caused the injury. Sindell v. Abbott
Laboratories
LOSS OF CHANCE OF SURVIVAL -- In a wrongful death action, proof that the defendant’s
conduct increased the risk by decreasing the chances of survival of a plaintiff is sufficient as to
the issue of proximate cause. Herskovits v. Group Health Cooperative of Puget Sound
PROOF OF FACTUAL CAUSATION -- When reviewing a trial court’s decision to admit or
exclude expert testimony, an appellate court should apply an abuse of discretion standard.
General Electric Co. v. Joiner
II. PROXIMATE CAUSE
A negligent person is liable in damages for the proximate results of his own acts, but not for
remote damages. Ryan v. New York Central R.R.
A plaintiff’s contributory negligence that is not a proximate cause of his injury will not bar him
from recovering for an injury occurring purely by chance. Berry v. Sugar Notch Borough
A defendant who negligently imperils and causes injury to a person may also be liable for
injuries suffered by a third party in attempting to rescue that person. Wagner v. International
Ry.
A defendant is only liable for the consequences flowing from his negligent act that are
foreseeable to a reasonable person at the time of the negligent act. Overseas Tankship (U.K.)
Ltd. v. Morts Dock & Engineering Co., Ltd. [Wagon Mound No. 1]
A defendant owes a duty of care to a plaintiff only if the plaintiff is in the zone of reasonably
foreseeable harm resulting from the defendant’s actions. Palsgraf v. Long Island Railroad Co.
A defendant’s negligent conduct may be the proximate cause of injuries occurring to a plaintiff
DIafter the actual negligent conduct if the risk of those injuries is a foreseeable consequence of
the negligent conduct. Marshall v. Nugent
A defendant’s negligent conduct is the proximate cause of a plaintiff’s injury if but for the
negligent conduct, the injury would not have occurred, and the conduct is a substantial factor in
bringing about the injury. Virden v. Betts and Beer Construction Company
Even if a plaintiff proves conclusively that his injuries are caused by a defendant’s negligent
action, he cannot recover damages if the injuries are a “highly extraordinary” or “remote”
result of the defendant’s action. Hebert v. Enos
EMOTIONAL DISTRESS-- A plaintiff may not recover damages for injuries caused by fright
induced by a defendant’s conduct. Mitchell v. Rochester Railway
A defendant’s liability for emotional distress caused to a plaintiff largely depends upon whether
the harm was reasonably foreseeable, and foreseeability can be evaluated by considering factors
such as whether a plaintiff was located near the scene of an accident as opposed to some
distance from it, whether the shock alleged by the plaintiff resulted from his sensory and
contemporaneous observance of the accident, and whether the plaintiff and the victim were
closely related, as contrasted with an absence of any relationship or the presence of only a
distant relationship. Dillon v. Legg

DEFENSES
I) Contributory Negligence-
When a plaintiff fails to use ordinary care in avoiding an obstruction caused by a defendant, the
plaintiff may not recover damages from the defendant. Butterfield v. Forrester
Even if a plaintiff engages in unsafe activities, if his injuries are ultimately caused by a
defendant’s negligence, the plaintiff has an action against the defendant for negligence. Beems v.
Chicago, Rock Island & Peoria R.R.
A defendant asserting contributory negligence must prove that the plaintiff’s own negligence was
a legally contributing cause of the plaintiff’s injury. Gyerman v. United States Lines Co.
A property owner has no duty to use his or her property to avoid harm caused by another’s
wrongdoing. LeRoy Fibre Co. v. Chicago, Milwaukee & St, Paul Railway Co.
The amount of damages a defendant is required to pay based on his negligent injury of a plaintiff
in a car crash may not be reduced by the fact that the plaintiff was not wearing a seat belt.
Derheim v. N. Fiorito Co.
II) LAST CLEAR CHANCE
If a party has the last clear opportunity to avoid an accident and fails to do so, regardless of the
contributory negligence of another party, the first party is held solely liable for the accident.
Fuller v. Illinois Central Railroad Co.
III) ASSUMPTION OF RISK
An employee who understands the risks of employment but continues working anyway does not
have an action for negligence against his employer if a risked injury occurs. Lamson v.
American Axe & Tool Co.
One who voluntarily participates in a sport accepts the inherent dangers in it so far as they are
obvious and necessary to participation. Murphy v. Steeplechase Amusement Co.
As a matter of public policy, a commercial business that opens itself to the public may generally
not require invitees to sign a waiver releasing the business from liability for negligence. Dalury
v. S-K-I Ltd.
IV) COMPARATIVE NEGLIGENCE
Under the doctrine of comparative negligence, if negligent conduct by both the plaintiff and the
defendant contributes in some way to harm suffered by the plaintiff, liability is assessed in direct
proportion to fault. Li v. Yellow Cab Co. of California

NOTES
Transfer doctrine- “Substantial certainty” to result
Doctrine of Attractive Nuisance- Property owner did something wrong.
Trespass is not a defense of attractive nuisance.

1 DUTY
RPP
Due care is a duty imposed on each one of us to protect society
from unnecessary dangers
HAND FORMULA
Looks at costs of abating the risk
CUSTOM
Deviation from custom- ex: “most construction companies
would..,”
STATUTE BREACH
RES IPSA
Sole cause of causal factors
2 BREACH
3 CAUSATION
ACTUAL
PROXIMATE-Must be something without which the event would not
happen.
THE TEST OF FORESEEABILITY: The test for proximate cause
determines if the injury was a reasonably foreseeable
consequence of the action- ordinary and natural result of
defendant’s negligence
Reasonable man ought to have foreseen the consequences
DIRECT CONSEQUENCE DOCTRINE CAN CUT OFF LIABILITY – AKA
DIRECT CONSEQUENCE TEST
An event sufficiently related to the injury, the court deems event
to be the cause- always determined on the facts of the case at
hand
Immediate v Remote Result
“chain of causation”- unbroken continuity between cause
and effect?
Take the plaintiff as you find them- “EGGSHELL PLAINTIFF”
AKA THIN SKULL RULE

4 DAMAGES
Be sure to play both sides “HOWEVER…”
5 DEFENSES
Contrib Negligence
Comparative Negligence- if you take action, you accept the risk
Any unreasonable rescue= comparative neg.