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Torts Outline (Mark McKenna) Spring 2010 Purpose of torts law To punish wrongdoing (Retributive Justice) To correct/compensate for past wrongs (Corrective Justice) To deter future wrongdoing (Utilitarian) Intentional Torts PF for Intentional torts standard of proof: preponderance of evidence Act: Some voluntarily tortuous act Mens Rea: Some wrongful intent Damage: Harmful consequences Causation: consequence has to be connected with the act. often liable for unexpected consequences, but still subject to proximate cause Affirmative defense (even P establishes all the elements, she still cannot win) (Burden on Def) The other way would be attached to the prima facie case Consent (playing football) Self-defense Responses and Rejoinders: P can response to affirmative defense Battery PF case Act: Voluntary harmful/offensive contact subjective approach consent is the best evidence Conflate consent into the Actus Reas, the plaintiff has to prove the contact is un-consented. violate class rule, no consent, so h/o contact. V osburg v. Putney Objective approach (most j urisdiction ) reasonable person of ordinary sensibilities would find the contact h/o. consent is an affirmative defense. D’s burden to prove.  victim doesn't have to know the contact (kiss while asleep) contact with object intimately associate with the body also counts. mere words not enough, but can accompany with some small overt act. Intent Intent or knowledge or substantial certainty that the contact is going to happen also enough or intent to cause imminent apprehension of h/o contact substantial certainty: subjective. no need to intent the consequence, only the act. Vosburg v. Putney (boy kick on the shin, intent the kick), Garratt v. Dailey (boy removed the chair, substantial certainty, mere careless, reasonable possibility) Restatement view different kind of contact is ok. no need to have tortious intent no need to have specific victim transferred intent Have to be able identify an identifiable person or a discrete group of people that you are in fact intending to hurt. second-hand smoke is not, only general knowledge. Exception: normally intent is not transitive. justification for transferred intent rule: You’ve engaged in bad behavior. someone’s hurt and needs to be compensated If subjective approach, then no consent is suffice to indicate a wrongful intent White v. University of Idaho (piano teacher) Damage Nominal damages presumed Causation Operator can also be sued under accomplice liability Offensive Battery PF case Act: Offensive contact

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Torts Outline (Mark McKenna) 

Spring 2010

Purpose of torts lawTo punish wrongdoing (Retributive Justice)To correct/compensate for past wrongs (Corrective Justice)To deter future wrongdoing (Utilitarian)

Intentional TortsPF for Intentional torts 

standard of proof: preponderance of evidenceAct: Some voluntarily tortuous actMens Rea: Some wrongful intentDamage: Harmful consequencesCausation: consequence has to be connected with the act.

often liable for unexpected consequences, but still subject to proximate causeAffirmative defense (even P establishes all the elements, she still cannot win) (Burden on Def)

The other way would be attached to the prima facie case

Consent (playing football)


Responses and Rejoinders: P can response to affirmative defense

Battery PF case

Act: Voluntary harmful/offensive contactsubjective approach

consent is the best evidence Conflate consent into the Actus Reas, the plaintiff has to prove the contact isun-consented.violate class rule, no consent, so h/o contact. Vosburg v. Putney 

Objective approach (most jurisdiction)reasonable person of ordinary sensibilities would find the contact h/o.consent is an affirmative defense. D’s burden to prove. victim doesn't have to know the contact (kiss while asleep)contact with object intimately associate with the body also counts.mere words not enough, but can accompany with some small overt act.

IntentIntent or knowledge or substantial certainty that the contact is going to happen also enough or intent tocause imminent apprehension of h/o contact

substantial certainty: subjective.no need to intent the consequence, only the act.

Vosburg v. Putney (boy kick on the shin, intent the kick), Garratt v. Dailey (boy removed the chair, substantial certaintymere careless, reasonable possibility)Restatement view

different kind of contact is ok.no need to have tortious intentno need to have specific victim

transferred intentHave to be able identify an identifiable person or a discrete group of people that you are in fact intending tohurt. 

second-hand smoke is not, only general knowledge.

Exception: normally intent is not transitive. justification for transferred intent rule:You’ve engaged in bad behavior. someone’s hurt and needs to be compensated 

If subjective approach, then no consent is suffice to indicate a wrongful intent White v. University of Idaho (pianoteacher)

DamageNominal damages presumed

CausationOperator can also be sued under accomplice liability

Offensive Battery PF case

Act: Offensive contact

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objective standard (reasonable person in the community): as baseline.but if D knows this particular P is especially sensitive, then still offensive even not reasonable.unlike assault, which uses subjective test to protect emotional integrity.Here to structure and create incentive for people's behavior --> objective.

Consent is defense.

Intent to contact or to cause apprehension of imminent contact




PF caseAct: Defendant causes in plaintiff reasonable apprehension of imminent h/o contact

objective standardP must awareApprehension is a mental state, not emotion (fear).the harm can be conditional, don't have to be inevitable. But D should have the present ability to carry out the threat(believe is enough)harm to your person.The fact that he couldn’t carry out the assault does not matter as long as P reasonable believe that imminent bodilyharm would followimminent: Threat of remove bodily violence in the future is not assault.

depending on circumstances. Even mere word may qualify.

Intent: to cause h/o contact or apprehension of contact or intent to batteries but failed

waive unloaded gun, thereat that could be assault but you don’t intent to carry out.  P should know about the contact (kiss while asleep is not)

DamagesDamage presumed (like all intentional torts)Other harms can flow from the torts, add to compensation.take the plaintiff as he finds her.


 Restatement: Can use force as self-defense or defense other (third party stops the starter) to preventh/o contact or bodily harm.



Liberty: shouldn’t have to always defense yourself, protect mental peace.False Imprisonment 

PF case

Act: Effective and complete confinement of plaintiff  P has to be aware the confinement or suffer actual harm.Mere threat is enough under certain circumstance.Prevent from a certain direction is not confinement. Need enclosure.

A spectrum. The bigger the area, the harder to decide whether it’s confinement or limitation.  Means to escape:

reasonableCondition escape: You shouldn’t have to do anything unordinary to get out of the situation. (threat w ith force, agun)duress: wrongfully keep P's valuable property

moral pressure insufficientIntent to confine or substantial certainty

Accidental is not false imprisonment, unless bodily harm resulted (then apply negligent standard, no longerintentional torts).Justification: dignity (intent) physical harm (negligence)

Damagesall the consequence: loss of time, physical discomfort, inconvenience, mental suffering, humiliation...


Shopkeeper’s privilege Merchant (or agent) may detain persons on or in the immediate vicinity of her premises when there are reasonablegrounds to believe the person was committing or attempting to steal goods, so long as the person is detained in a

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reasonable manner and for not more than a reasonable length of timeobjective standard

As Self-defense: Restatement, can use confinement as self-defense or defense other (third party stops the starter) to preventh/o contact.


Intentional infliction of emotional distress (IIED) PF Case

Act:D engages in extreme and outrageous conduct cause severe emotional distressObjective standard

Exception: If do know a particular person is particularly sensitive, and act on that knowledgespecial relationship: more outrageous for employer to mock employee. common carrier and passenger.

mere insult could be enoughCelebrity, higher standard. Assume the exposure.tell a woman that her husband has been badly injured. Wilkinson v. Downton

Intent: intentionally or recklessly with regard to emotional distressreckless: deliberately disregard of a high degree of probability that severe mental distress would result.objective standard. include should have known , impute intentNo transfer intent from one person to another.intent for other intentional torts cannot transfer to IED.

Except: assault.

Damage:P has to prove that she suffers severe emotional distress.physical harm is not required.Third party recovery

present during the outrageous conductclose related to victimD knew P's presence, and knew that distress to T was substantially certain to result from D's conduct

parasitic damageonce you commit the crime, you get parasitic damage for emotional distress.

Anguish and fright caused by trespass, deceit. Wilkinson 

CausationTrespass qcf (Trespass to real property) 

PF CaseAct: Voluntary intrusion onto someone’s property Can be visible particle, if amount to interference with possession.

IntentIntent to be where he is, voluntary act is enough. close to Strict liability or know with substantial

certainty that he is enteringno mistake as defense

DamagesLiable for all the damages that flow from the trespass. (Children light a match while trespassing. Even if they arecareful, still liable.)Tangible Trespass

Nominal damages presumed for tangible invasions, Dougherty v. Stepp (survey on other's land)intangible invasions

damage must be provedEmail server is real property, send unauthorized email is intangible trespass. Intel Corp v. Hamidi (no damageunless physical harm to the function of the server)

can also be treated as trespass to Chattels, result is the same.Put burden of proof on P to restrict litigation


Trespass to Chattels (T/C)PF Case

P either possessed the chattel or had the immediate right to possess it (not future right).

Act: Voluntary interference with possession of personal property

Intent to make use of the chattelto do the act that turns out to intefere with the possession is enough

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no mistake as defense.

Damagesthe amount of the use or damage.

“Harmful to the possessor’s materially valuable interest in the physical condition, quality, or value of thechattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legallyprotected interest is affected” Intel v. Hamidi (also restatement) 

less harsh than real propertyharm cannot merely flow from the interference of the chattel, but the chattel itself. Hamidi 

limit the capacity of the server is sufficient, not just interfere.

Exception: personal property that share similar character as real property, such as gas meter (unmovable), nomaterial harm is required. Blondell v. Consolidated Gas 


Conversion A conversion is the exercising of an unjustifiable and unwarranted dominion and control over another’sproperty which causes injury to the owner of the property.A party can have a conversion claim if either (a) she is in possession; or (b) she has a right to immediatepossession of the article.PF Case

Act: Unwarranted interference with the dominion over property of plaintiffsubstantial inconvenience and expense caused to P, duration.non-feasance or negligence not enough

no mistake of ownership defenseIntentIntent to do the act exercising dominion or control is enoughno need to intent "others" property

Damagesconversion itself is damage, nominal damage presumed.lost measured by the owner.corrective justice (if good faith): pay back what the P has lost. Put P back in where he was. Maye v. Tappandeterrence (if bad faith): pay back the full value if you’re intentional (even if the price is higher than P cansell). Force sale.

maximize incentive to act carefully


For novel circumstancestry to explain what is the exercising of unwarranted interference with dominionMoore v. Regents (blood sample for commercial use), possible justification

Continuing property: the conversion happened when they did something on the blood that exceeds thepermission.Property ends when extracted from P: conversion happened when fraudulently extract the blood.

Consent is D’s affirmative defense. P can response fraud (“Yes, but” claim). Difference b/w trespass to chattels / conversion

Possession: not deprived / deprived of possessionduration is different.

Ownership: possession needs not be the owner/ need to be the owner

Damage: need to show material valuable interest in the physical property / conversion itself is damage

Trespass to chattels: the reduction of value of the chattelConversion traditional view: full price, force salenow:

innocent converter can return.Some jurisdiction: allow D to choose

Give back and pay the diminished value.Keep it and pay full value.

Defense to intentional tortsConsent (if objective approach) 

justificationindividual's autonomy, respect each person to make choice about his bodily integrity, including choices that differ frommajoritarian choices.

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Corrective justice: no injury, no need to compensate.

Scope of consentIt was a contact to which the plaintiff consented; ORIt was a contact of a substantially similar nature

no need to consent to the consequences

construe the consent in the contextTypes of consent

Expressed consentImplied consent

means to an endconsent to surgery = consent to incision.

manifestation of behavior

stand in line waiting for vaccine= consent to vaccine. O’brien v. Cunard Steamship Co. Oral statement, any surgery that is necessaryStatements/waiversParticipating activities with knowledge of the rule Hackbart

if it's part of the rule, then you should know it as a consequence. (except intentional attack)Substitute consent

Incapacitated person: under age, incompetent to give consentAffirmative giving over authority to make decision (attorney)Family members consent for patientlimited: the reason why we care about consent is we value people’s anatomy. 

Consent implied in lawPlaintiff, as a rational agent, would have consented to the operation if she could have been asked.Emergency privilege, no time to get consent, can extend surgery.Objective determined, except that the doctor has knowledge that the particular patient is idiosyncratic (religious thatrefuse blood transfusion). If they don’t know. They don’t bother to find out.  

reasonable patient would consent.unknown before the surgery

Response to the defense of consent Outside the scope

Intentional act that violate rule is outside the scope.negligent or reckless break the rule is hard to recover. Hackbart agree to operate an right ear, operate on the left instead.

Illegal act 

Majority view: illegal consent is no consent at all. Can sue each other for battery.Paternalistic.

Minority view: Consent stands even it’s illegal activity. the willing suffer no injuryException: the activity is illegal b/c of protection a certain class of people in which the plaintiff belongs toHudson v. Craft (illegal boxing) 

Also Statutory rapeinitially intends to make adult behave more responsible. If girl consent, no action. Barton v. Bee Line


(1) Nature or quality of an invasion or contactNature: Tap your leg, turns out to be kicking as hard as I can.Quality: Consent to different contact

A condition that induce the consent, not the nature of the contact itself. Kick and give her 10 dollars. Collateralmistake. à contract remedy, not the nature or quality, no torts.

(2) D knew or should have known that P made a mistake, AND 

(3) D knows or should have known that P would not have consented to the contact had the mistake notbeen made.


Imminent threat of physical harm.Consent kicking you in the leg or I’ll fail you. NOT duress. 

Threat of Physical harm to othersClose relatives.But in that sense, it’s just emotional harm, so very limited 


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Under ageIntoxicateInsane

Self - defense the privilege to use reasonable force to prevent threatened harmful or offensive contactor confinement

the act is no longer tortious

WhenOne is privileged to use force when she actually and reasonably believes she is in imminent danger of bodily

harmBelieve is enough, not have to be real.

Justification: cost of refrain acting is huge, possibility of imminent danger.Don’t have to consider things you have to overturn the threat. Even sword v. gun. He can pull his gun out. (Indiana

Jones)Can plead self-defense even mistakenly (but reasonably) thought he’s under attack. Courvoisier v. Raymond 

Only against Physical invasion: Things that are battery to you.initial aggressor cannot respond to other's self-defense.

How much forceMajority rule: One is privileged to use force that is proportionate to or less than the force with which one is

threatenedNo deadly force unless against serious bodily injury or death (rape is enough)

likely to cause death or serious bodily harmMinority Rule: amount of force necessary to repel the aggressor

subjective standard

Hybrid rule: you can use proportionate, unless something less is sufficient to repel the aggressor.

Duty to retreat ( Restatement) :If you can escape, then no need to use proportional force. (Necessity rule)You can use the same amount of force without retreating. No retreat. (Proportionality)

If too much force, negligence. . Brown v. Robishaw 

Harm to innocent third partiesMajority rule: if you would be justified in self-defense, then not liable to a third party, as long as you

act with reasonable care with proper amount of force.Restatement: if D realized or should realize that his act creates an unreasonable risk of causing such harm, liable. 

Minority rule: you have liability for any injury to an innocent third party. You bear the risk of missing. 

can't intentionally harm a 3rd party in self-defense, battery.Defense of othersReasonable believe that she is in serious bodily harm.Depends on jurisdiction. Proportionality rule or necessity rule.majority rule: no mistake. if the ostensible victim isn't entitle to self-defense, then you are liable.minority and restatement rule: reasonable mistake is allowed.

Defense of PropertyNot enter by force:

Request them to leave first. Then use force.

Enter by force (active destruction of property,)One is privileged to use force to defend one’s property without first making a request when responding to a

trespasser who enters with forcereasonable believe to the danger is enough

no mistake to intruder's privilege, e.g.necessitynecessary rule (majority rule):no deadly force for property

one may use the amount of force necessary to remove the trespasser, but must stop short of deadly force.One may use deadly force only when entrant also threatens bodily injury sufficiently serious to warrant deadly forceas a matter of self-defense

Restatement (minority rule)/ Castle doctrine: no deadly force unless entering dwellingyou're entitled to use deadly force if someone is breaking and entering a dwelling

Indirect defense of Property (spring gun)Spring guns only when they do indirectly what one would be privileged to do directly Katko 

Prevent battery M’Ilovy Prevent forcible trespass to dwelling (Restatement § 143)

If there is notice, the entrant bears some of the risk.

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Cannot be malice: wasn’t intent to deter, but to make injury. Lack of notice contribute to the court’s determination of malice. 

NO take the victim as you find him

Recapture of propertyOne is privileged to use (non-deadly) force to recapture property that was (1)not voluntarily relinquishedwhen (2)in hot pursuit of the trespasser and when (3)claims to ownership are not contestable.(1) timing: reasonable amount of time 

(2) Wrongful taking or conversion if under a claim of right, no recapture. Kirby v. Foster 

Except Fraud, treated as taken from you involuntarily.(3) contested claims 

How much forceMajority rule: Can use force.include the right to enter the property of the wrongdoer to reclaim the item. (Trespass)Entitle to use the amount of force necessary to recapture the property, short of deadly force.No reasonable belief mistake.

Cannot use force to get your property back if it turns out that you’re wrong.  Discourage people from self-help

Necessity-partial defense(excuse) Interference with another’s property is excused when the interference is necessary to preventharm of greater magnitude than it causes. Ploof

Constraint necessity to the use of necessity to one’s propertyremove defense of property

DamagePay only actual damage: When one, out of genuine necessity, deliberately transfers a loss to another toprevent a greater loss to herself (private gain). (proxy to unjust enrichment)

liable because affirmative measures were taken to secure the boat, unjust enrichment. Vincent 

Public necessity: benefit others. no damage at all. Justification

Utilitarian: What action will generate least cost and most benefit?

Deontological:it's wrongful to kill, no matter what the consequence is.when there is no right outcome, deontological not very useful. Moral catastrophe.Difference b/w act and omission. (kill people v. let people die)Difference b/w knowledge and purpose

Economic justification of necessity: prevent hold out problem, minimize the lost.

Insanity (limited excuse) Defense only if it negate the intent to hit. (not real defense, explanation for why one lacks mensrea,) McGuire v. Almy 

You know you’re striking at a person, then no defense. You think you’re hitting an object, then has a

defense.Coconut, dog, defenseGod told you to hit him, no defenseMarsian, can argue, more like person (human form)

RationaleEven not culpable, still impose a cost on somebody else. (balancing fault theory with public good)Incentivize the guardian to be careful.

Non-reciprocal risk theory cannot explain insanity and necessity.History of Negligence

Causal fault theory: even equal in terms of culpability, the person who cause it should pay for it.Incentive: take care of your action for the rule internalize all the cause of your action. Or foregone the activity alltogether.

Strict liability: don’t care why you caused it. General principle of common law: loss must lie where it falls. Act is sufficient.

Require act /c require D to make a choice in order to be liable.Defense: didn’t act or the act is involuntary. 

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admit the act, then raise defense like consent, self-defense.The Thorn case, Strict liabilityInevitable accident

Weaver v. Ward , (mistakenly shot another soldier while skirmish the gun) open up inevitable accidentLack of fault act as defense. Narrowly interpreted, limit to cases where P cannot be fairly descript as the causeof the result.

Duress is not evitable accident, but "not my act". Smith v. stone. animal is passive instrument, if you bolt the horse, then you still did the act. Gibbons v. Pepper Forms of action (nothing to do with intent)

TrespassDirect and immediately force

Trespass on the caseMediate or consequential injuries, indirectly causedlimitation of indirect harm: causation--> fault--> no longer strict liability

Scott v. Shepherd directness test on Trespass: natural and probable consequence of D's act. (transferred liability)free voluntary intervening actor break the causal chain.middle person act under self-defense, not at fault

Brown v. Kendall Need evidence of fault in all cases, two forms collapsed. Direct harm can be brought in case if it’s negligence. No need to differentiate direct/indirect harm. 

Plaintiff had to prove

Voluntary act by defendant;For which defendant was at fault (intentionally or negligently)Which caused (directly or indirectly)Harm to the plaintiff 

Two theories for unintentional harm (Holmes) Criminalist

Penalty for disobedienceLiability lies only to be based upon personal fault

A man acts at his peril (Voluntarily act + harm) strict liabilityAs long the act was voluntary, the mental state of the actor is immaterial.Defense: didn’t do it. D’s body is only a passive instrument of an external force.Cons: inconsistency

Ryland SL pocket voluntary act by Dnot have to be on purpose

Ryland, building the reservoir is voluntary, not it’s breaking is not.  

on D’s own land P didn’t expose himself to the risk. D is in complete control. Sole beneficiary

amounted to(a) Non-natural use of land

Not necessary to bring some new things on your land. Digging mine.

tannery with toxic implies some normative judgment, inconsistent with the community use (community: how far the harm wouldtravel)

(b) To importing something not naturally there(c) To keeping a thing likely to do mischief if it escapes

Prototype: fire, digging mine is not.Horse escape and cause damage is not.

Give court discretion to decide. Either satisfy from a) to c), or explain Ryland to be only about a)Done for personal benefit

Proxy for unjust enrichment.Non-reciprocal risk related.

Caused harm to Peven non-natural use, still have to satisfy proximate cause, the injury is not foreseeable. Cambridge WaterCo.(toxic escaped and disspate in water)

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Flip side: scare people from making new process, not economic efficient. Defense

Plaintiff’s fault caused the harm Act of God or coincidence altogether out of defendant’s control Plaintiff’s assumption of risk in public places, e.g., traffic

Powell v. FallPro SL: non-reciprocal risk.

The cost of running a train system should be internalized (if it cost too much to make it worth to run atrain, then probably the train system is not social beneficial.) Enterprise liabilities. If people don’t want it,they won’t buy it. If they internalized the cost and spread it to customers. If they won’t pay, then train issocially wasteful.Coase: reciprocal risk, if transactions cost =0, then entitlement doesn't matter.

Epstein: causation in a grammatical sense, need action.

Con SL: SL will only tell what is cheaper, but not require the train to pay the cheaper one. Act in a

way that is efficient, don’t have to pay anything?! 

Pro Negligence: act reasonably, no moral wrong; balancing cost-benefit, try to minimize the

cost.farmers to move the stack: we want to keep the training even they cannot completely avoid the risk.Society benefit is high enough.

Comparing the cost to fix out the risk and the harm train may cause

put the cost on least cost avoider.Modern negligence 

a negligence standard to a property owner (Cricket, Golf) The risk has to be reasonable foreseeable.Corrective justice:

rectification or redress for an invasion of legal right, usually physical invasion, concern about fairness, noconsideration of long term incentive effects. 

Economics theory

Minimize the administrative costs of enforcement-> pareto optimalityReasons for prefer negligence:

Requiring fault to be liable.Someone has to bear the lost

SL: who cause it. deterrence.NG: who is at fault. corrective justice.

When people act without fault is equivalent as not acted at all. Just as Tree falling down. You have to take it.

Economical efficiencyNG Gaining popularity in modern times

Industrial revolution. More dangerous, more crowded.

seizure and lost consciousness while driving. Apply negligence standard, only liable if the seizureis foreseeable and he took no special actions to prevent it. Hammontree 

otherwise over chilling driving..Raise of insurance

Allows you to insurant against your own loses.

Prima Facie Case for NegligencePF case 

Duty: D has duty to unreasonable risk of harm?

Breach of the standard of care: D’s conduct fall below the standard of care? (negligence) Causation: D’s failure to meet the standard of  care cause P’s harm? (limit the scope of liability) 

Causation in factProximate cause

Damages: P suffer harm?

Breach of standard of care Reasonable Person Test

Did the defendant act as the reasonable person of ordinary endowments would have acted

under the circumstances? Not really fault based, not depends on particular person.

objective test: constraint the dangerous group of people, good for Social security

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subjective test: cling to personal fault, better in terms of morality.create too many rules, unfair result. no incentive to take care, no consistent prediction.

Contributory negligent sometimes use subjective standard majority rule: Objective standardSubjective standard: don’t need to worry about the innocent by-stander. When P is incapable to reach theobjective standard but has done her best. (not used)

flip side:violate the set up standard for an activity.measurement

fairness b/w P and D: When both hayricks burn and destroy each other’s house. Not fair to hold up todifferent standard for P and D. smart/dumb.

JustificationProvide a baseline. Incentive for people to improve their performance.corrective justice: pay only when act unreasonably.The standard is more efficient to admin. Don't have to determine what is a particular D’s capacity and what types of character should be considered.Reciprocal risk perspective: when people start deviating SL, posing different kind of risk to others, even not morallywrong.

Exception of Reasonable Person TestHolmes standard

Distinct defect that makes taking precautions impossible.not all precautions, just the certain ones that related to the defect

Not fault (not one that they can change)Different than just lazy or dumb.

MeasurableCan set the standard of legal blindness. But not officially laziness.The ability for the court to find the fact.Intelligent: have a point that we are able to measure. But not always.

DistinctThe category of people that all can recognize that most of us don’t have. Exception, rather than the rule.  

no exception for poor judgment

Youthlower standard: reasonable X year-old kid under similar circumstance.

lack cognitive capacity, experience, give them time to learn.

Example: is an 8 year girl reasonable to run for ice cream even when she is asked not to.Exception: adult activity, use objective standard.Adult activity: Risk, license/education involves, minimum age standard (motorcycle, driving )

license is not dispositveMinor beginning skier enjoy lower standard of care, for no license is needed for ski. Goss v. Allen 

No license needed for speed board, still held to the adult standard of care. Dellwo v. Pearson

non-adult activcity: Not only adult involving. Have precaution. Culture.Justification 

non-reciprocal risk to other peopleincentive to be careful in a dangerous acticity

Agedness/Blindnessobjective standard

consider one's own condition before engaging in risky activity. (driving, Walking stick, blind

dog…) act as a reasonable elder/blind would act.

Old man drive and struck on a kid after failing to stop. Roberts v. Ring not alert enough as a reasonable person. irrespective of age.

InsanityNo Notice: Defense

b/c cannot take precaution.Sudden delusion and hit you, no negligence but battery, unless you are aiming to squash a coconut.

Notice: You have a duty to act reasonable under the condition Breuning the same as agedness and blindness, have to curtail or exercise particular self-restraint in order toavoid liability, take precaution.

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If it's too dangerous for you, then don't do it.Exception: institutionalized patient injury the paid caregiver. No negligence.

Assumption of risk 

Drunkennessno exception. If you not sure about your alcohol sensibility, then take precaution not to drink that much.narrow exception: involuntary intoxication (not at fault)

Special SkillsException when the person expressly hold out. Otherwise only ordinary level of reasonable person.

Has to be representation that people reasonable understand.otherwise hard to draw the line, destroy uniformity of the standard of care

Exception when engage in certain kind of activity that reasonable requires higher standardComparing with the other people who are reasonable engaged in the same activity.

How to draw the circle. How do you find the universe of people that you compare it.Apply reasonable person in the special activities when court can define with special specificity that who isengaged in this activity.

Lawyers, doctors that have licensing system (not dispositive, but allow the court to find the discretegroup easily.)Climbing guide, even no license, you can still see who is engaged in this activity.

Beginners: same standard of care as skilled.

Pros: protect people that being hurtCons: discourage learner to attempt

 Restatement: Different standard of care only when inexperienced v. driving instructor, not v.pedestrian

Calculus of RiskTerry’s Calculus of Risk  

The magnitude of the risk The value of the thing riskedThe anticipated benefit from the risky activityThe probability that the risky activity will result in the benefitThe probability that the benefit will not be attained without the risk activity

The Hand FormulaP x L > B, then negligence.

P = Probability of harm resulting from the party’s act or omission (foreseeability)

L = The gravity of the harm (loss) that may resultB = The burden of taking precautions to prevent the loss


Blyth (pipe frozen) Burden: cost of lying the pipe deeper, not remove the ice,P: probability that harm will result in a lower ground.L: damage it will do.Since P is sufficiently low b/c of statistic likelihood, PL<B, not negligent

Carrol Towing Co. P: probability of barge breaking awayL: the gravity of resulting injury: sinking, lost....B: have bargee on boat

at nigh, burden is too high, not negligent. But on daytime negligent to fail to have bargee.compare the result of different precautions

keep the wire away from telephone line v. hanging it on top of pedestrian. The later pose more harm, so not

negligent. Cooley v. Public Service Co. PL?B is about multiple precautions and probabilities.

Without Bargee only affect the risk of sinking, but still other harms like lost. Carroll Towing Co. Sometimes cannot identify the precautions, effective in different magnitude. D has to weigh differentprecautions. Calculus all the PL and sum them. A court will not do it. Only identify one or two of the most possible precautions and calculate it. (usually P’s job.) 

Proscreate economical incentive, promote efficiency


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Polycentric problem:Evaluation of a particular D’s conduct may require an unusually complex technical analysisvariables appear to beindependent, but then turns out to be interacting with each othertoo much discretion, and court is not suitable for that--> use proxy.  

As long as due care, don’t consider the level of the activity. Never ask should they engaging the activity at all orwhat level could they do?

Strict Liability: consider both the level of care and the level of activity. The only way to encourage the actor to considerthe magnitude of their activity. Internalize the cost of their behavior.

Risk neutral assumption

Risk averse: overvalue $10 than 10% to get $100. Insurance. So over investment in safety.

Additional precautions should be tested at the margin:when marginal precaution yields zero benefit, stop. Even the total precaution is lower than totalbenefit.


small error in level of care have great differences in the outcome, Induce higher level of care thanSL. SL: indifference to improvement

Epstein: contractual case use negligence; Stranger, use SL, b/c cannot negotiate beforehand. Maybe the market

is sufficient to allocate of the risk. People are engaging in risky behavior but they will get paid higher. 

Negligently fail to anticipate the negligence of another.

Proxies for Fixing the Standard of Care Custom

Compliance with custom is some evidence of non-negligence, not dispositive.add into evidence when doing Hand FormulaCustom is not based merely on old standards. It also must be based on adapting to new technology. The duty of care

is a relative concept that changes. T.J. Hooper (fail to have radio set on ship is negligent, even no statutoryrequirement for that.) Rationale:

If a given custom goes against negligence, then allow industry to exculpate themselves. Disincentiveto develop new safety devices. If market is not efficient, then don’t want custom to be dispositive. But on the other hand, customimplies the feasibility of the precaution.In house regulation: consider give people incentive to set high safety standard (w/o incur liability), aswell as customer's reliance on their higher standard.

At trial jury still use ordinary reasonable person standard

For medical malpractice: compliance with custom is practically conclusive evidence of non-negligence. (As a defense)

P still entitles to response it. But P has to rebut the presumptuous of conclusiveness: unless Pdemonstrates that the custom is unreasonable under reasonable person test, juror should rule conclusivelyunder the custom.

Is there a custom, what is custom, whether D’s act comply to the custom? The evidence of custom isstill presented to the jury, Practical conclusive =/ completely conclusive.

Glaucoma test under age of 40. reject the custom standard b/c the test is so imperative for this particular patient.

Helling v. Carey 

P use custom as a sword (deviation from the custom): no longer practice conclusive even in medical cases.Defense: assumption of risk. Waiver. But in medical care cases, doctor is far more knowledgeable than the patients.

Rationale: jury are ill-suited to decide technical questions.A lot of negligence in medical practice will be disruptive to the system. People interact with doctors morefrequently, more cases coming out.

Standard of care:same standard for all practitioner.a doctor must use that degree of skill and learning which is normally possessed and used by doctors in goodstanding in a similar practice in similar communities and under like circumstances.

NO Locality Rule in medical practiceStandard of care is not different for doctors in different places of the country.But do consider the availability of resources. “we didn’t go the test b/c we don’t have the machine.”  

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When more than one treatment available:Need quantitative number of reasonable doctors agree with this approach, and then a defense of negligence.

Error in judgment:measure whether someone is negligence at the time they made the decision.Avoid using hindsight bias. It's hard for jury to forget bad things.

Criminal Statutes (Use as sword)Two kinds of claims

Negligence (Common law)Statute is evidence of breach of duty. Doesn’t change defenses, duty, just a piece of information,  

No arising under claim even if use federal statute as evidence.Statute create a cause of action

Claim is Violation of the statute.Explicit/implied (Read cause of action into it)Prove elements required by the statute. Change defense.“arising under claim”. jurisdiction 

Negligence per se> practically conclusive> PF evidence> some evidencemajority rule: per se or practically conclusivesubstantial majority rule: some evidenceCalifornia: PF evidence

 Restatement: practically conclusive

Justification for the deference to the criminal statutesMore certainty, less unpredictable outcome.

Legislature did the calculus the risk in a high generality, aggregate level. Indicator of what is negligence. Efficientfor the court just to follow that rather than doing the calculus themselves in every case.Reinforcement of the criminal system.

Limitation of useP uses as sword.

If D use as shield, not enough, not per se non-negligent. statutes are often minimum standard.Plaintiff must be within the class of persons sought to be protected by the statutePlaintiff’s harm must be within the class of harms sought to be prevented by the statute

if look at the statute as hand formula calculation, you have to make sure that the kind of case is thecases that the legislature have considered about. Otherwise the cost is very different, should give tothe jury. But this rule is a little bit fuzzy to the negligence per se rule.

counter-argument: predictability. Other people rely on the standard set forward by the statute.

the statute is targeted to prevent the spread of disease, not sheep falling overbroad. Not the group of people, not the kind of harm that the statute is intended to protect. Gorris v. Scott 

Negligent per se (conclusive evidence of negligence)no rebut. No excuse. Court will grant summary judgment. Only can argue there is no statute violationViolation of Statutory Duty

if the harm is the exact kind of harm to the protected person

D sold unlabeled poison to P, violate a statute. negligent per se. Osborne 

Still have to prove causationlack of license is not negligence per se. No causation b/w failure to get license and the accident Brown v.Shyne (a practicing chiropractor cause patient paralyzed) 

even have license, still liable. Unless it's lack of training that leads to no license.Administrative requirement that a given device be approved by the FDA is only a tool to facilitate

administration of the underlying regulatory scheme, not to impose a standard of care. Exception

 Restatement: violations of statutes may be excused when compliance would involve a greater risk of physical harm to the actor or to others than noncompliance. Also have the excuses of necessity,emergency, incapacity, lack of knowledge of the need to complyn,Negligence standard for violation of statute, can argue that exercised reasonable care.

if it's ordinance or administrative regulation, then probably no negligence per se.Courts treat Negligence per se

Read into exception to statuteLimit the claim to the targeted group of peopleWater down a little bit

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Practically conclusive evidence of negligenceEnough to get to the jury (Stand direct verdict). Same procedural consequence. But once get to the jury,get the instruction that you should find for D unless P establish it's unreasonable

Prima facie evidence of negligenceresult in a direct verdict unless the other party rebut it. Burden on the other party. Enough to survivesummary judgment. Enough to get to the jury, but the other side can rebut.Agent left the car with key in public and was stolen. violate statute, liable. Even thief is voluntary intervening actor.

Ross v. Hartman 

Some evidence of negligenceNo direct verdict. Not necessary to get to the jury. No particular instruction regarding the evidence.

Judicial Per Se RulesClaim created by the statute: all conditions are in the statute, no need to look at elsewhere, not

as evidence of negligence (common law claim)

Implied Federal cause of actionDoes the statute create a unique federal right in favor of the plaintiff (is plaintiff one of the class for whose specialbenefit the statute was created)?Is there any indication of legislative intent to create (or deny) such a new cause of action?Is it consistent with the underlying purposes of the legislative scheme to imply such a cause of action for theplaintiff?Is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that itwould be inappropriate to infer a cause of action based solely on federal law?

a) Implied in the state statute.b) Federalism.

Federal law that prohibit corporation from giving donation to presidential election. On the face no privatecause of action. If the purpose of the statute is to protect the integrity of the political process, then theshareholder is not the targeted group of people. Cort v. Ash 

Counterargument: to prevent individual shareholder’s money being used against their use. But this issue is

controlled by state corporation law.

The statute provides for the creation of administrative remedies and regulations. Furthermore the statutespecifies that the school district shall not suffer any liability in connection with the tests. So no private civilaction for school failing to examine students for scoliosis. Uhr 

Judge and JuryRule/standard argument

Rule: Predictability, clarity. Easy to settle. Normally the question of due care is left to the finder of fact but when the standard of conduct is clear it should be laid by the courts. “stop, look and listen” is rule of law. Goodman (Holmes) But many of negligent case is dependent upon circumstance, a certain rule of law is not suitable, sometimes theresult is bizarre and is costly to modifyJudge set the standard, juror are more experienced with the fact. But when a state of facts repeated in practice,the court will have the experience to say whether it’s blameworthy or not, with the exception when the standardis rapidly changing. Even when fact appearing with some variation, judge will gradually acquire a fund of experience which enable him to represent the common sense of the community in ordinary instances far betterthan average jury.Jury is only needed when there is ambiguity, and help to create rule.

Standard: Individualized, costly to make. “stop, look and listen” should be put in specific circumstance. To get out of the vehicle and reconnoiter is an

uncommon precaution and is dangerous. Should go to the jury. Pokora v. Wabash Ry. (Cardozo) A standard of prudent conduct declared by courts as a rule of law must be taken over from the facts of life. Toget out of the vehicle and reconnoiter is an uncommon precaution and is dangerous. When there is nobackground of experience that the standard have emerged, need more caution to set up rules of law, artificially.In such extraordinary situations, it is up to the jury to decide whether a particular course of action was prudentunder the circumstances. Pokora v. Wabash Ry. 

 Restatement : adopt Pokora, case by case basis, instead of uniformed rule.

Judicial controlInstruction: error or prejudiceKeep certain questions of fact from the jury

Judge decide what evidence can infer negligence, jurors have to say whether negligence ought to be inferred.

Summary judgment and direct verdict: not going to the jury at all.

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No genuine issue of material facts and entitled judgment as a matter of lawDirect verdict: no reasonable jury could find against the party

Rationale:Fear that jury may abuse its unlimited power against the established principle of law the principle of distributive justice: like cases should be treated alike.Passion and prejudice.

Deep pocket problem.Hindsight bias


bring the sense of community to estimate reasonable care. A check against officials and professional people.Res Ipsa LoquiturAllowing the proof of D’s negligence by circumstantial evidence, don't have to know the negligent act.

 jury decides whether the accident was more probably the result of negligence.Justification

P lack of access to information. D is in a much better position to know what happened here. Sort of flipping theordinary presumption here.

RequirementAccident is of a kind that ordinarily would not happen absent someone’s negligence 

ordinarily would not occur is not enough.Boat disappear at sea. No Res ipsa loquitur even when the condition of the boat is good, b/c the sea itself 

contains many hazards. Walson v. Lambersten 

whether the probability that D was negligent, given the occurrence of the injury, is greater than50 percent.Highly number reliance.escalator handrail suddenly stopped. the probability that it's b/c negligence is much higher than other

reasons. Colmenares Vivas 

Car could swerve by malfunction instead of driver's negligence. no res ipsa. Galbraith v. Busch 

Eliminating other possible negligencePlanes don’t crash without negligence, when ruling out other plausible explanation (weather, visibility,

other planes are good) Newing 

Still has to establish "breach": Guest Status of the victimStranger: when car cross the median of a highway, presumption of negligence. PF negligence, give D achance to rebut by showing facts inconsistent with the inference, such as an excuse --> allow use res ipsa.

Pfaffenback  Guest on a car: use res ipsa only when establish gross negligence. Galbraith v. Busch 

assume more risk, in a better position to observe whether D use reasonable care.

Accident caused by an instrumentality within the exclusive control of the defendant;

Hotel owners 

hotel is not in complete control of their guests’ behavior, cannot use res ipsa. Larson 

D was well-informed that their guests are dangerous, given the notice, the power that the hotel has controlis whether to rent the room. At that point they had exclusive control.

since identified the negligent act, don't have to rely on res ipsa. Connolly v. Nicollet Hotel

Exclusive control doesn’t have to be physical. Legally exclusive control is enough. (Duty) A D has nondelegable duty of care to maintain the escalator in a safe condition, no need to be in exclusivepossession. Unless the duty is delegable, the doctrine is not defeated if D had shifted physical control to an

agent or contracted with another to carry out its responsibilities. Colmenares Vivas

if everyone can press the button to stop the elevator, no res ipsa.For D to protect themselves: by contract. Indemnify.

When cannot locate one particular defendentstill can use res ipsa, sue all D and argue one of them is negligent. (limited to surgery on the unconsciouspatient) Ybarra v. Spangard 

Exception of exclusive requirementP can claim res ipsa case even if she possessed the chattel, as long as she has done nothing abnormal andhas used the thing only for the purpose for which it was intended.

P was invited to sit on a chair. P properly used the chair for the purpose it was intended. Still can useres ipsa. Benedict 

Accident must not have been due to any voluntary action or contribution by the plaintiff 


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Satisfy the three requirements only suffice to establish a PF case. Then shift the burden to D.D can rebut the inference by showing facts that are inconsistent with the inference.

Car brake problem: D can defend that he only got the car for two weeks, don't have a chance to check it.D used all possible care

D till has defense that P is contributory negligent (negligence not in the res ipsa test, other kind

of negligence).negligent in later behavior that further injuries oneself 

 Restatement: didn't say "exclusive control", but "other responsible causes are sufficiently eliminatedby the evidence"

CausationCause in Fact 

But-for Test: Had D not so conducted, P's injury would not have resulted.Concurrent cause: (substitute for but-for causation) 

Category I: the conditions are individually necessary but only jointly sufficient.But-for test applies

Category II: Multiple sufficient causes acting concurrently.Alternative one: Look for Culpability

Two fire at the same time, one by man, one by nature. Kingstonif both by man, joint tortfeasers.

the first fire shouldn't liable for all the damage, but can argue lost of opportunity.

if the other is natural fire, then the house will burn out anyway. Nobody is at fault.Alternative Two: specify the but-for test, limit the harm to when and howDrop down the bridge, touch a bare wire and die. Dillon

But for the wire being un-insolate, the boy won’t die this way at this time.  the other cause will also be sufficient to injure, but never came into operation. The first cause is still the but-forcause.

But for fire A, the house won’t burn when and how it did. (two subsequent fires, first man made, second

nature.)Damage: compensate the amount of time that wire could the boy to lose. 20 seconds.

Category III: Increase the chance of a particular kind of accidenta probability assessment.

Flip and fall down the unlighted steps. ReynoldsWithout light greatly multiply the probability of her falling down

Burden then shift to D: she's drunk, wet shoes etc.Harm within the risk test:Where (a) a negligent act is deemed wrongful because that act increases the chances that a particular type of accident will occur, and (b) a mishap of that very sort happens, this by itself may be enough to support a findingof causation by the trier of fact

Burden on the negligent party to bring in evidence denying but-for causation and suggesting that in theactual case the wrongful conduct was not a substantial factor

bump into water from a barge and drown, no life preserver. Grimstad The reason we want life preservers on broad is to substantially lower the risk of drawing

Overdoes and the patient died. Zuchowicz Overdose is prohibitied is to avoid side effects that lead the P's death.

Lost chance doctrine

misdiagnose cancer, reduce the survival rate by 14%. 39% --> 25% Herskovits 

But for the D’s failure to diagnose the cancer, there are still 61% (100-39) chance that he would die.Damages: If chance of survival > than 51%, full compensation. Otherwise .limited to the amount of money lost due to early death, proportional.problem: overcompensate in cases that P would die anyway, and undercompensate in cases where delayeddiagnosis caused death.

systematically overtaxed.Hesitate to compensate increased future risk.

require injury to establish the PF case, otherwise too much administrative hassleCulpable Cause of Ignorance

Liable for created a lack of information.Don't have the information to answer the but for causation, the reason of which is resulted from some negligent evidence

(but if the hotel put up a sign, still no information)

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Joint and Several LiabilityLiability

Joint Liability (Traditional law): each joint tortfeasor is liable for all of the harm suffered by the plaintiffif that harm is indivisible, even if his act was only one of several contributions 

cannot apportion the harm (contribution)no contribution, only indemnification. Union Stock Yards Co. of Omaha Contribution: a defendant who has paid more than his proportionate share of the award has a claim against theother jointly liable parties for the excess payment.zIndemnification: a defendant can shift some or all of its share of the damages to another defendant.

Rationale: culpable people can’t recover. Several Liability (Modern law): Each joint tortfeasor is liable only for her individual contributionsJoint and Several Liability: each joint tortfeasor is liable for the totality of the P’s harm, though othersmay be responsible to an individual D for part of the damages.

P can sue one alone and recover all damage. D can then partial indemnify other Ds.Equitable indemnity / Contribution: D who made more than his pro rata share can seek a partialreimbursement from other joint tortfeasors.

Basis for joint liabilityDefendants acted in concert

Defendants are concurrent causeseach is but-for cause, two car accident, both negligent.

Over come proof problem

Justification:D is in a better position to find out who's liableThe fact that D is a cause does not mean he’s the primary cause. Indemnity operates when one of the joint

tortfeasors can prove that other party is really at fault, then they can shift all the liability to that party.All or nothing game.

Alternative CauseD has to be part of close class of persons one of whose cause the harm.

Nobody outside the lawsuit could be the cause.

All Ds are similar situated, act negligently in the same thingIf D2 is not negligent, even he shot P, he’s still not liable.  Not equally causally responsible, only one of them shot P.

P cannot determine reasonably which it was.One of the two shot P, but don’t know which one it was. Summers v. Tice 

based on culpabilitynegligent in standing in triangle and shot, both defendants committed the same negligent act.

Culpable KnowersRes ipsa doctrine applies to medical negligence case when P received unusual injuries whileunconscious and in the course of medical treatment. Ybarra v. Spangard 

shift the burden of prove.not closed class, not all negligent. Use joint liability as a tool to get information. Each D get off the hook by they arenot liable or others are liable.problem: conspiracy of silence based on information asymmetryCannot identify who’s in exclusive control: no res ipsa 

Drown in a swimming pool when there is no lifeguard or sign, Liable for created a lack of information. Haft v.Lone Palm Hotel 

Market Share Liability

who contribute to the creation of a general risk of injury, avoid but-for cause.identical and share the same defective qualities (Fungible, identical product.), join limited time span of 

manufacturer, and assign liability based on the market share. Each is only severally liable for its share.don't know who make this specific drug, but all of you made this defective drug, you all can be liable for someone.If you think about the time frame, and put liable for every manufacturer that were in the market at that time frame,and assign liability based on the market share. Sindel Lead paint is not fungible product. They have different formula and different amount of lead, different amount of harm, cannot include manufacturer that wasn't in the market. Skipworth Compare with joint liability

Similar: both identify a group of people without establishing the particular causation.Difference: limit responsibility to the percentage rather than responsible of the whole amount once found liable.

Presumption: Market share is a good proxy of the plaintiffs of such kind of products.

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Assume in a wide range of cases, manufactures turn out to pay the harm from their product according to theirmarket share. Some overcompensate, some under-compensate.The only time court allows to use marker share theory is that they think there are a lot of cases of this kind. SoTry to put more parties in.based liability on risk creation.

No close class requirement: Ds make up 90%, still okay. But encourage to bring more or most parties in. (vastmajority preferred.)if not marketing in that period of time, not liable.No exculpation evidence could be allowed in individual case, recovery in proportion to national market share.Hymowitz 

the fortuity in no way diminish the culpability of a defendant for marketing the product

Justification:reduce the likelihood that the real D will escape liabilityDiminish P’s burden to prove Apportion damage

Problem: violate traditional causation rule. inculpate someone who didn't cause harm to the plaintiff.

Proximate Causation Arbitrary Space- Time Test

too remote in space and time to establish proximate causetrains spread spark and burn a house 130 feet away. Ryan 

damage incurred are not the immediate result of the negligence of D, not the necessary furtherance of the fire.Problem: no way to draw a clear line.

Harm Within the Risk Testthe restatement approachX is the proximate cause of Y if Y is among the class of harms whose risk made it negligent to do X.

statute requires to pen the sheep b/c of disease, not drown. it’s not the kind of risk that the statute is trying to prevenSo it’s not negligent per se..Gorris v. Scott: 

(can still be negligent.) then P has to prove negligence: use hand formula.Being hit by a falling tree is not within the risk that makes driving too fast negligent, not the proximate cause.Berry v. Sugar Notch Borough The risk of leaving Nitroglycerin on a table is the possible explosion. If a soup, not negligent to leave it on the table.The harm materialized is the bottle hit a child, not proximate cause.The risk of putting unlabeled poison is that someone will eat it by accident. But if putting the poison near a stoveand its explode, the label is no longer the concern.

Should figure out how possible poison will explode, how close, how much heat. Then Run PL ?B test, list all

the potential dangerous.Entrust Loaded a gun to a child, child drops it and hurt her toe. It’s doesn’t matter whether the gun is loaded. If 

handing an unloaded gun to a child, not negligent. So the risk we are concerned is loaded gun’s risk, not dropping.

But if argue that even give a unloaded gun to a child is still negligent, then can argue that the gun is too heavy, harmwithin the risk.Third party negligence:

Last wrong doer exception (rescuer)The risk that someone will be subject to medical mistreatment is within the risk of why making drivingcarelessly negligent in the first place. The risk is not only you hurt them, but make them subject to furtherinjuries. Atherton v. Devine 

P couldn’t stop at her station due to D’s negligence. Then P was arranged in a hotel, where the lamp explodes

and injured him. Central of Georgia Ry. v. Price: The injury resulted is not within the risk of failure to stop at her station.different with the Atherton case b/c describe the risk in a different way.

D cut into corner and P bumped into it. Then was hurt while warning other cars for the collision. Marshall v.Nugent 

when counting why D's cutting into corner is negligent, the risk includes subsequent injury (b/c negligent isstill ongoing)

Third party intentional wrongdoingwhen D’s negligence consists of exposing the injured party to the act causing the injury, then still liable.

P couldn't stop at her station due to D's negligence, and on the way walking back, got raped by a soldier.Hinesboth railway and the soldier are the proximate cause, joint tortfeasor.

Justification: secondary economic loss too burdensome, available insurance. Policy reason.

Problem:description. Matters a lot here what you describe the negligent in the first place.

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collapse with the determination of negligence.Whether Failure to have a bargee is negligent? Identify particular harm that might flow from that. Run Handformula.Whether failure to have a bargee is proximate cause? Whether that harm is something within the risk of thenegligent. Look at the list of the Hand formula.generalize or specific. Ultimately the court has to choose the characterization.

Foreseeability TestX is the proximate cause of Y if Y was among the type of harms foreseeably caused by X, even if the

extent of harm which Y represents or the manner in which Y came about was not foreseeable.

manner:Oil on the dock: no matter by whale vomit or by human.

negligently discharged oil on the water and it caught fire b/c of smouldering cotton waster or rag fallingfrom the wharf. Unforeseeable, not proximate cause. Wagon Mound lamp explode after failure to stop at her station. Unforeseeable. Price got raped after failure to stop at her station and has to walk back, foreseeable. Hines Ambulance collision exaggerates the harm, foreseeable. Atherton leaving paraffin lamp outside: both burning and explosion are foreseeable, same type of harm from a known sourceof danger. Hughes 

counterargument: explosion is distinct from burning, two types of harms.Don't have to be likely to happen in order to be foreseeable.

Ways to cut the line of liabilityfor policy reasons. insurance available

use duty, or focus on culpability. (bartender and the drunk who later involved in a car accident)Justification:

focus on culpability, create incentive people to take precaution (only can take precaution against the risk they canforesee.

only select their act considering cost of people that they can foreseen.If the goal of torts is compensating innocent people, then not a good test.counter-argument: if acting negligently, sure there’s some harm foreseeable. Don't make the D get off the hook 

 just b/c he’s lucky and the harm didn’t fall within the foreseeable harm. hard to describe the events that led to the harm, i.e., whether a different harm or just different extent.

Negligence in knocked a cement cover into a vat: splash some walk-by is foreseeable. But the explosion is adifferent harm and is not foreseeable. Doughty 

Direct Cause Test

X is the proximate cause of Y if X is a but-for cause of Y and there are no intervening causes

(start from the premise that whatever but for cause is also the proximate cause. then identifyvoluntarily human act or abnormal conjunction events )

Intervening causeFree voluntarily human act (intentional conduct)

Third party intentional wrongdoer always breaks the causal chain. (but not in Foreseeability test).if intervening person act maliciously, then free voluntarily intervening actor, broke the causal chain, original Dis no longer proximate cause of the injury Watson v. KentuckyException: Free intervening actors act on the opportunity provided by D.

collision b/c D's negligence, P's good scattered and was stolen. Brower 

Not free intervening actor when the following non-negligent act is not causal contribution to theoriginal negligence.

Longshoreman's decision to keep working is not a contribution that intervened the negligence of the

mis-stacking, just acting on the negligence situation. Not an act that changes how the events will unfolding.(the bad will still fall on some other who work on it. Gyerman He knew it’s dangerous but act anyway. assumption of risk, not contributory negligent.  

Involuntary actPhysically compulsion, reflection

Being Startled then break the glass is involuntary.Duress


A’s act creates a predicament for B narrowing the area of choice so that he has either to inflict

some harm on himself or othersSet fire and force someone in the house to jump.In Scotts v. shepherd, People in between is not free voluntarily human act but necessity. The initialthrower the proximate of the last person’s injury.  

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Steamer negligently hit the ship. The captain's following act was out of necessity, not voluntarily act.City of Lincoln Jumping off the train out of reasonable apprehension of necessity, not free voluntarily act. Tuttle v.Atlantic City R.R. Rescue doctrine: if a tortfeasor creates a circumstance that places the tort victim in danger, thetortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any personinjured in an effort to rescue that victim.

The rescuer’s act doesn’t count as voluntarily act, something like necessity. The fact that he might

 be contributory negligent doesn’t break the causal chain. Wagner If the rescuer acted unreasonably, then covered by comparative negligence

Acting out of the ignorance of the circumstance of the likely consequence.A ask B to hand over a poisonous tea to C. If B’s ignorant, A is the proximate cause.  

But doesn’t mean that B cannot be a proximate cause. Even if B should know. B is also negligent in handing C the tea. A and B are joint tortfeasors.

But if A said to B hand the poison tea, B did. Then B is free intervening factor.Wagon Mount case could be argued this way. (spread oil on the water, burned the wharf)

 Negligence doesn’t break the direct cause proximate causal chain. 

Abnormal conjunctions of events amounting to coincidences.Requirement (All have to be true)

Abnormal conjunction of event

Statistical unlikelihood.Wind in the forest is not an abnormal event. Conjoin A’s action (throwing cigarette) in a

normal way.Tornado after the cigarette: abnormal event, A’s no longer the proximate the cause. 

The conjunction of events is a cause-in-fact of harm

Conjunction of events occurred without human contrivance

Is the statistical unlikelihood rise out of human plan? Somebody. is trying to make the conjunctionevent happen together.

Events which conjoin are independent of each other

One is not caused by the otherAbnormal conjunction of events occurs subsequent in time to the defendant’s act 

If throw the cigarette while the tornado is blowing, no longer coincidence.You act on the condition, not the condition acts on you. Could not be a preexisting condition that.A hit B who falls on the ground stunned and bruised by the blow, then killed by a tree crashed tothe ground. A is the cause of the bruise, not B’s death. (coincidence) 

Situations where different tests lead to different conclusionsCategory One: the voluntary intervening act is foreseeablelet the woman walk back in the dark, got raped. Hines 

Foreseeable test: yes, proximate causeDirect cause: negligently taking her pass to stop is a but for cause, but there was free intervening human actthat breaks the causal chain, not proximate cause.

Category Two: preexisting condition that is unforeseendrop a plank and generate spark, inflame the oil. In re Plemis 

Direct cause test: Negligent dropping is the “but for” cause. Need conjunction of events that includesomething explosive to act upon the spark. But the oil exists before the spark occurred, preexistingcondition, coincidence is not met, still proximate cause.Foreseeable test: preexisting condition of oil is not foreseeable. Not proximate cause.

Exception when there is special relationship & omission

ad hoc exception that applies restatement provision: exposing someone to 3d partyPer se causation created by statuteTreat as omission, kinda admit D doesn’t cause the harm, but has a duty to prevent it b/c of special relationship. Kline (landlord's duty to protect tennat from criminal attach)

Someone stole your car and hit 3d party, you and 3d party has no special relationship, doesn’t apply.  

Substantial Factor Test

X is the proximate cause of Y when X is a “substantial factor” in producing the result Y 

Problem: Still have to decide what is substantial factors. Court typically by asking is it foreseeableor within the risk.

Negligent Inflicted Emotional Distress (NIED)NIED: physical injury resulted from the emotional injury.

IIED: Seeking recovery specifically for emotional stress that is intentionally caused. Or as parasitic damages

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(adding emotional damages on top of physical damage)

Physical injury rule:P has to show physical injury is resulted from D’s negligent. Cannot recover pure emotional injuries. If something

 physical follows from emotional injuries, that doesn’t count.  cannot recover for injuries result from fright when there is no immediate personal injury. Mitchell v. RochesterRailway can be trivial injury, Interpretation physical contact broadly.Rationale for physical injury rule:

Fake Claim, open the floodgate of litigation.

but can use objective standardProximate causation problem: if use foreseeable harm, have to foresee the type of the harm.Even foreseeable that someone will be frightened, what is the physical injury that reasonably flow fromthat.

LimitationZone of Danger rule:

if you are reasonable fearing for your personal safety, you can get damage even no physical injury. Limit thegroup of people who’s available by drawing the zone of danger. pros: D owes bystanders a duty of care b/c they are within the area of risk created by his conduct, injury isforeseeable.cons: too arbitrary

Dillon Rule (Foreseeability Test: whether the emotional distress is foreseeable from the accident)(1) whether P was located near the scene of the accident

(2) whether the shock resulted from a direct emotional impact upon P from the sensory and contemporaneousobservance of the accident or found out later.(3) whether P and the victim were closely relatedreject the Zone of Danger rule, majority rule (30 states), also restatement rule. Dillon v. Legg 

mother can recover NIED for her son's death even she's outside the zone of danger.

problem: vague, rule v. standard argument.

DutyPalsgraf rule: one has a duty to refrain from acting in a manner which could injure any foreseeableplaintiff.

Question of whether the harm that materialized was within the class of harms that made the action negligent is aquestion of proximate cause, not duty

Multilayer Foreseeability test by CardozoDuty question has two components:

Was the plaintiff within a class of persons foreseeably injured by the defendant’s negligence?  If so, was the harm to the plaintiff within the class of harms whose risk made the defendant negligent vis-à-vis theplaintiff?

RealityWhether P is in the foreseeable class of plaintiff --> duty, judge decide.Is the injury within the class of harm --> proximate cause, jury decideOnce D owned a duty to P, the harm is in the risk, P in the class of people. If D breach the duty, then only has to provecause in fact.rationale: incentive to take precaution?Problem: To decide the zone of danger depends on what kind of risk is it. Hard to determine if this is a foreseeableplaintiff w/o judging the foreseeable harm in it. split the baby, more like two side of a coin. Hard to complete separate.

Exceptions to Palsgraf rule: limited duties of owners and occupiers Invitee

On your land for mutually benefit. Also public invitee.the premise is held open to them for the particular purpose on which they enter.Patron in a mall, don't require to make purchase at the time of the injury..

Affirmative duty to make it safe. Duty to inspect the premises for hidden dangers.Doesn’t make you the absolute insurer. Cannot say it’s omission. 

Licensee:who came on the land with the owner's consent, social guest. No mutual financial benefit.

dinner guest 

No affirmative to make things safe, only to avoid dangerous or conceal dangerous that is apparent known or

should be known to the occupier.a warning is enough.Omission will in some case be treated differently.

Yania, if come to visit for business purpose, invitee. If Neighbor come to visit, licensee. Since P was well-aware of the danger, not

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concealed danger. Owner is not liableThe invitation can be assumed to be the act. But in Yania, verbal act doesn’t count as act. Mental rather than physical impact.Tension! Try to solve these cases as duty cases.

Trespassers:who had no right to be on the land

no duty to take reasonable care for his safety. No affirmative duties as Moch. Palsgraf also holds.

Do have duty to doing things affirmatively hurt the trespasser.Only refrain from willful and wanton act. Now, more sympathetic to trespasser, maybe recklessness.Exception

Willful and wanton exception: construct the exception broadly.

once the owner has knowledge that there is trespasser on the land, he has to act reasonably to hissafety.Excelsior Wire Rope: if you know there are children here regularly but continued to run the machine w/ochecking impute wantonly disregard (require knowledge that this child was there expand tochildren regularly here) knew that there is certain possibility that children is there, but not bother tocheck. Gould v. Debeve: Disregard of screen in light of statutory requirement--> treat as willful, although it'snot the kind of risk contemplated in the statute. 

Attractive nuisance doctrine:allows infant trespassers to recover when lured onto D's premises by some tempting condition created andmaintained by D.Sometimes require affirmative duty to keep children to safe. No longer no duty b/c children are trespasser.

Sioux City v. Stout: turntable attracts boy and he got stuck. This is the kind of thing you should have known thachildren will climb on.Possible defense: exercise reasonable care to make sure children don’t get hurt. Limit to children: From D’s perspective, individualize the potential victim make the precaution hard to make.

(adult but lack capacity). Highly categorized. Restatement limits the application to artificial condition

swimming poolsNatural conditions: trees, pond.Maalouf v. Swiss Confederation: wrong decision. A hill attracted the kid, a wire caused harm. The rule tofocus on artificial condition that ATTRACTS the kid. (you have to have reason to know it’s gonna attract

children to your property) Shouldn’t be nuisance b/c what attracted him is natural.

Trend: reduce the significant of the categoryFirst approach: collapse the distinction b/w invitee and licensee. While keep trespass on the other side, no duty rule.

Everybody else would apply ordinary negligent principle, reasonable care to make them safe.Second approach: get rid of the category all together, though might count in when determining what should reasonablybe done in ordinary duty calculation.

What entails in the reasonableness is different for invitee and for trespass.In a state, you have to figure out what’s the rule.  

Vicarious liability: Employer has non-delegable duty to employee's tortious conduct when there's dangerinvolved in the job.

The Moch Rule A party has no duty to others foreseeably injured by that party’s omission.

Failure to provide enough water pressure is an omission, no duty to the citizen that is not the direct beneficiary. Moch

No duty to be a good Samaritan.

No duty to a trespasser when there is no affirmative act. Buch Trace back to the last affirmative act, setting up the machine. No negligence, so no affirmative act.

If invited, the act of the invitation is an act, everything that follows is the duty of the inviter. --> exception to Palsgrafruleif the machine is damaged by the boy’s hand stuck in that, can get damage. 

enticing someone to jump into the water is a negligent verbal act, but not the proximate cause since P is also a strip minerhis status is different than in Buch, free voluntarily actor.Yania 

If P didn’t know the puddle, then D create the dangerous condition --> source of peril exception.Failure to come and operate on a patient. Treat as pure omission. Hurley v. Eddingfield

Act/Omission: Go back in time and identify an act, which is causally relevant

Describe the creation and the alleged omission in a sequence of acts.You see a boy beating his GF, you didn’t dial 911. Your omission to dial 911 is not causal related to the beating, so

no duty. jazzing while people drowning. Even there is an affirmative act, no causal relation.

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If by the time getting on the car he knew he will have seizure, then is acting negligently.By the time the train stopped, no fire yet and no need for fire fighter. the affirmative act is non-negligent.

Embedded omission: Whether a previous affirmative act created the dangerous condition.  omission follow the creation of dangerous condition.driving w/o a license, can be characterized as act or omission. Same is theft, take away property or just failure to return iOmission sometimes embedded in the act.Omission to put light up while digging a hole on the road is embedded in a larger complex act. it’s part of the larger 

sequence of act. Digging of the hole create the dangerous condition. Newton v. Ellis Failure to put up warning sign after traffic accident. Sounds like omission. But b/c they created the dangerous condition.

The omission is embedded in the larger chain of act. Montgomery The creation of dangerous condition need not to be negligent. 

Rationale of the act/omission distinctionEpstein: act/omission is an important distinction. Libertarian. Preserve liberty and autonomy.Slippery slope problem: hard to assign liability to all the people omit to rescue, hard to draw a line.

When to stop the duty, weigh a life and compensation.Psycology : people remember act but not omission. Acting leaves mark in the world, not omission.Intervener do more harm than good. confident rescuers.

Exception to Moch Rule Source of Peril

Create a dangerous condition, even not negligently.The duty is only to act reasonably, not absolute to make everyone safe.

The line: Foreseeability of the peril

ExampleEither warning or light is reasonable act when digging a manhole on the road. Newton Give a warning is reasonable act. Montgomery 

Restatement: a prior conduct, even though not tortious, creates a continuing risk of physical harm of a typecharacteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.

Justification:No obligation unless you create a danger.Not worry about best rescuer. They were the ones who create the danger.Reasonable place to draw a line.

[Gratuitous] Undertakings

Negligent in stopping the aid, engender reliance and put them in a worse position.

rather an act then omission, can also think in terms of embedded omission, lost chance doctrine in


 Restatement: one who undertakes, gratuitously or for consideration, to render services to another which he should recognize asnecessary for the protection of the other, is subject to liability to the other for physical harm resulting from hisfailure to exercise reasonable care to perform his undertaking if 

his failure increases the risk of such harm, orthe harm is suffered b/c of reliance upon such undertaking.even done wrong, if reasonable for him to do in the first place, not liable.

People get sick at store, store has no duty to come to help. But when take people to infirmary and fail to treatthem, the duty. Zelenko v. Gimbel Bros.

Can be gratuiousMajority rule: Promise engender reliance made P is a worse position than w/o the promise. Thewillingness to impose liability on D is not willingness to impose liability on omission. Those cases are not

pure omission. Involve failure to act in a series of complex act.Marsalis v. LaSalle (promised but failed to keep the cat to see whether it has rabid.) 

Voluntarily provide some service. they can fulfill their obligation either by continuing the practice orreasonably dispelling the expectation. Erie Railroad.(railroad canceled watchman who has been in thecrossing for a long time)

The fact that the person had expectation made them worse off when the watchman failed to do his job.Old treatment: Contract without consideration

voluntarily held D to move casks of brandy from one cellar to another and split a lot of brandy. Coggs v. Bernard more like promissory estappolBring in torts: promised but failed to secure the ship and caused damage Thorne v. Deas 

the torts doctrine that treats promise as undertaking vitiate the contract doctrine that promise w/o consideration is notenforceable. Has to do something affirmative to be an undertaking.counter-argument: But from a P’s perspective, doesn’t matter whether they try to insure the ship, catch the cat, or just

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didn’t do that at all. 

ExceptionShield of liability statute: limit liability, limited in scope, only extant to health care providers.

When there are no better rescuers, want to give incentive for people to rescue.Special Relationships

Parent-child, spouses, siblings, lawyer-client, landlord-tenant, doctor-patientRationale: more capable, know more and in better condition to rescue. Voluntarily assume the duty.

Counter-argument: legal duty doesn’t matter. Only matters when people won’t live up with it.  Moch rule is to maximize liberty. If you voluntarily assume the duty, your liberty is not constraint.

The scope of the special relationship:Exam: Duty comes first. Here the landlord has a special relationship b/c asymmetric control. Then goes to cause.Direct cause test might be a problem, but when there is special relationship, court sometimes look over the test.Three ways--> Direct cause test

Asymmetric control: landlord-tenantfail to protect tenants from criminal conduct. Landlord is in a better position to do that. Kline Require only reasonable duty, like running hand formula, take whatever cost justified precautions to make theplace safe under the condition

special relation to control Perpetrator from hurting othersDuty of confidentiality is not absolute. Need to have fairly specific information so that it’s believablethat it will be carried out. Specificity matters a lot. Duty to warn: doctor-patient, attorney-client.

people in charge of mental patients or prisoners; parents to children.often in a unique position to control.

Tarasoff: Psychologist has specific information that his patient want to kill P, so has a duty to inform.Spouse has legal recognized shied, no any affirmative duty to control their spouse.

A fair number of court will hold relatives on duty if they have very specific knowledge under Tarasoff.

Affirmative DefenseContributory Negligence 

if P is negligent and his negligence contributes to his injury, it’s complete bar to recovery.  Duty on D to show contributory negligence.D put up a pole on the road. P ride a horse violently and fail to notice the obstruction and fell down, no recovery.Butterfield v. Forrester 

doesn't apply to intentional tortfeasor.

Justificationabosulutist moral view: D no longer solely culpable (P’s negligent kinda cancels out D’s negligent. Pick people specially

responsible/culpable to assign the lost on them. If P’s also negligent, no reason to let D carry the whole damages.  Duty to oneself greater than duty to strangers, so are more responsible, even if not more culpable.Efficient incentives to take care:

 Problem:In a con neg jurisdiction, when P would be liable for all his lost if not take precaution, D never gonna know whetherP should take the precaution, so they also have to take precaution .--> over-incentivize precaution. (sociallyaggregate, would be a waste)

Train spark burning Haystack: damage 100, railroad can fix it for 50, landowner can fix it for 25. For each partyseparately, PL <B, if not take precaution, then negligent. Neither know whether the other party will take theprecaution, so they all have to do it. but only one is sufficient. --> over investment.

PF case of contributory negligence

Duty: Whether P will be foreseeably injured by his own activity?The negligent has to be related to the injury P suffers. (what is the potential risk of that negligent

behavior?)Driving a tank near school bus, not negligent to the tank driver himself.Put rat poison in your neighbor’s power, he made muffin for you and you got hurt. You are not contributorynegligence b/c the duty you breached is that to people living in your neighbor’s house, not to hurt yourself.  

If omission rather an act, no special relationship to yourself. So no duty to oneself.The speeding might make you an affirmative duty to other people, but not necessarily that yourself is within theforeseeable victims. Butterfield v. Forrester 

Negligencestatute against over speeding as a proxy for reasonable care. Butterfield v. Forrester Longshoreman continued to work after noticing the unsafe condition, but for cause of the injury, but not negligenceb/c P acted reasonably in continuing to work. The cost for him to stop working is too high. Gyerman 

within ones own property

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right based approach: can do everything you want on your property. Even haystack get burned, don'thave to move. Using his own property v. Invadinglaw and economics analysis: If train operating reasonably, then shouldn’t be liable. If you leave your haystack in a range that even a well managed train could throw spark, you are negligent.

act negligently to a known danger, also AOR.Assign liability efficiently--Calebreisi

Compare the farmer’s cost to the cost of the railroad Calebreis: do a rough guess.

Even give the entitlement to the wrong side, if transaction cost is low, can be reallocated by

negotiation.In real world, assembly cost, administrative costIf farmer get together against railroad, collection problem

Judges don’t use this approach. 

Cause in factLongshoreman is alleged contributory negligent in failure to report the unsafe condition to his supervisor. No causein fact b/c cannot prove if he had reported things would happen differently. Gyerman 

Proximate Causationthe harm occurred is not within the risk that make the D’s behavior negligent, not proximate cause.  

The reason of negligence is ignore the risk of slip, but P ended up injured when the ice house buckled.Smithwick 

Court’s reluctant to apply contributory negligent. B/c the consequence is a complete bar on recovery.specify the risk: Over speeding and the extent of car accident

not within the risk/foreseeable that someone hit you, you spin out, and damage severely. (lose control of your car) Mahoeny 

distinguish b/w before accident or contribute to the extent of harm: Failure to wear seatbeltTest: Is person contributing to outcome in a deliberate way?happened before the accident, only contribute to the extent of the injury, not the accident itself Derheim 

weak argument: When you making up PF case, you make up causation b/c conduct and injury. Not theconduct with the accident.the bargee case, negligent to the extent! (if there were bargee here, can save some lost.)

Alternative appraochApportion damages. Shift to comparative damages. Spier

Limitation-- Last Clear Chance

A plaintiff’s claim is not barred by contributory negligence where a defendant has the last clear chance

to avoid an accident with a negligent plaintiff because that plaintiff is helpless or is otherwise unable or

unlikely to take further precautions against harm.Requirement:

P can be just not paying attention.P riding wagon, not paying attention when crossing the railroad track. Fuller v. Illinois Central R.R If P remains in a position to take care of himself, then no last clear chance.

Defendant’s negligence succeeds the plaintiff’s in time (opportunity to avert danger) State of mind regarding plaintiff’s peril (Restatement) 

Helpless Plaintiff:(i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or (ii) would discover the situation and thus have reason to realize the peril, if he were to exercise thevigilance which it is then his duty to the plaintiff to exercise.

Inattentive Plaintiff:

knows of the plaintiff's situation and realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril intime to avoid the harm

If D couldn't know that P is not paying attention, then no requirement of last clear chance.

Assumption of Risk (AOR) A plaintiff’s claim is barred by the doctrine of assumption of risk when she:  

Manifests voluntary acceptance of ano assumption of risk when D limited P’s options so that he has no voluntarily choice to make. Confine to anartificial constraint of bad choices

confine at the house, risk himself to his car, or shoot the boar. Marshall v. Ranne lost his job or get injuried. Gyeman 

Doesn't matter whether D is negligent.

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Known (and appreciated) riskObjective standard: What would a reasonable persons under circumstances appreciate the risk to be in the activity?Has to be within the scope, specific risk 

driving: even assume a lot of risks, still can defend out of scope.Don't have to foresee the extent of the injury

If it's so severe that it becomes another kind of risk. didn't foresee this specific risk.Primary assumption of risk

D is not negligent in imposing a risk that is voluntarily assumed by P. --> no breach of duty and

breach of care

employee knew the risk of the rack and informed employer. Not negligent to stop working, but assumption of risk.Lamson v. American Axe & Tool Co  

Rationale: Already compensated by his salary of the risk. Then allowing him to recovery equals double payment. Sovoluntarily assumption of risk.

no "reasonable" problemSecondary assumption of risk

P was at fault (negligent) b/c P knew there was a risk and voluntarily assumed an unreasonable risk

(could collapse into contributory negligence)assumption of risk before incident

Using Hand Formula to determine whether P is reasonable.whether a reasonably prudent man would have ... in the face of a known risk if reasonable, see below

whether complete bar depends on jurisdiction.

Cases where P reasonably accepts unreasonably imposed risk.If think cases that ought to be barred for assumption of risk, think that plaintiff owns own risks & shouldn'tget to recover. It could be reasonable for P to assume the risk given the burden faced (lose job). Don'tcollapse into contributory negligence.Still allow AOR if can say:

a. Independent: AOR should be an independently valuable defense. If value independent liberty and P'sright to choose risky behavior shouldn't get claim notwithstanding it doesn't collapse into any of theothers.b. Primary: D did not breach their duty even though much cheaper to replace it.

Waiver of all claims for personal injuryno waiver for injury due to negligence of the defendant

A customer sees and understands the dangers of a ride in amusement park assumes the risk. Murphy AOR unless there is concealed risk.

express warning about the ride. But P suffered from abnormal occurrence. If unknown to the P, he cannot assume the risk. (harmswithin the ride test) Russo 

Wild animal: so dangerous that you should not assume the riskstrict liability, no way to make them risk. Inherently risk level is higher than people should assume.

JustificationPreventing unjust enrichment b/c P has already been compensated of the risk.D is less at faultIndividual autonomy, freedom of choices

Like consent, not at fault when People consent to the risk. moral magic.

Assumption of risk wipe out the breach element of the PF case.

Comparative Negligence divide liability b/w P and D in proportion to their relative degrees of fault.

not causation, but culpability.

Arm out window & drunk speeding.calculation of percentage of negligence

Jury does a better job tracking fault then assign percentage.add in some more complicated decision making mechanisms that would impose administrative costs

pure comparative negligenceLiability assigned purely in terms of relative faultRationale: Does a better job in assigning on the basis of fault;

threshold systemLiability assigned in terms of fault, as long as the P’s fault doesn’t exceed some threshold  not as great as <

not greater than ≤  

Problem: disparity in recovery 

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Results in a ton of litigation as to whether it is really 49-51 or actually 50-50

multiple partiescompare P's negligence to the combined negligence of the Ds or individual D, depends on jurisdiction.Partial indemnify: Apportion within Ds, depends on jurisdiction.cross-claim (both parties entitle some damage): if parties have insurance, then pay full amount. if not, then just pay thedifference.Some Ds not in the lawsuit: whether P can recover the full amount of all Ds fault depends on jurisdiction. If true jointliability, then yes.rationale:whether P can recover the amount he deserves. What's the impact of insolvent party. Whether fair to D.  

AOR in Comparative Negligence systemMost jurisdiction: fold into comparative fault.

other jurisdictionPrimary AOR: still bar recovery. like rebutal to duty and breach, affirmative defense.Secondary AOR 

folded into negligence determination.D cannot get summary judgment by establishing secondary AOR

Last Clear Chance doctrine in Comparative Negligence systemfolded in negligence determination

Settled Parties

AMA Test: subtracting out the amount of settlementif indemnify, no incentive for settlement. (depends on jurisdiction)P could get windfall, or to the contrary.

McDermatt test:subtracting out the percentage fault of the settled party

 more true to fault for the remaining Ds.Insolvent Party

Several liability: P lost that part of damage

Joint liability: apportion that amount among the remaining culpable parties (include P)XY not in the case, D3 insolvent, can only add D3’s apportion in D1 D2