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OUTLINE DETAILS:School: Harvard Law SchoolCourse: Torts

Year: Spring, 2005Professor: Douglas A. Kysar Text: The Torts Process, 3 rd EditionText Authors: James A. Henderson, Richard N. Pearson, John A. Siliciano

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Torts Outline Professor Douglas A. Kysar Harvard Law School - Spring 2005

Doctrine:

I. Intentional Torts1. Battery : harmful or offensive contact w/ another, resulting (even indirectly) from intention to cause that

contact, or from intention to put another in imminent apprehension of harmful or offensive contact

a. Physical Contact Requirementi. Physical Contact w/ P1. Must be some physical contact w/ P, or at least something that is in contact w/ P2. Ordinarily, this is direct physical contact between P and D

ii. or object set in motion by D1. May also be some object set in motion by D, such as weapon, or some force such as

electricity2. Force need not literally be set in motion by D, as long as the contact results from Ds

intentions3. e.g., Garratt v. Dailey (young boy pulls chair out from underneath old woman boy

set in motion the force)iii. What constitutes contact?

1. Direct contact between D and Ps body2. Direct harmful contact between Ps body and something else (e.g. the ground;

Commonwealth v. Stratton contact between P and poisoned fruit)3. Direct contact with something closely associated with Ps person (e.g. clothes)

iv. The eggshell skull rule : If you commit an unlawful act, then you are liable for theconsequences of that act, even if the ONE person you tapped on the head happens to be THE

person in the world w/an eggshell skull (consequences not foreseeable)1. note : this rule requires an unlawful act and only applies to battery

b. Vosburg v. Putneyi. Facts: Putney lightly kicks Vosburg in the classroom; Vos ultimately develops an infection

on leg.ii. Rule of Law : P must show either D had unlawful intention to produce harm or that he

committed an unlawful act1. note: that harmful or offensive contact must result in order for there to be battery

iii. Intent:1. irrelevant that Putney did not intend to harm (as jury found)2. if the intended act is unlawful then the intention to commit it must also be unlawful.

iv. Unlawful Determination:1. flexible standard look to context, look for implied license (cf. playground vs

classroom)2. Unlawful contact if it is Harmful (13) or Offensive (18)

a. Offensive: if it offends the reasonable sense of personal dignityb. Harmful: counts if a) there is intent to cause harmful contact and b) harmful

contact results, even indirectlyi. Hypo : P trying to avoid harmful contact injures himself battery.

ii. note : intent to harm can include imminent apprehension of suchcontact

c. Prima Facie Case : You need to establish1. An act by defendant,2. with intent to inflict harmful or offensive touching,3. a harmful or offensive touching,4. and causation.

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ii. Act by defendant (Need Volitional Movement)iii. Intent

1. D must either desire to bring about harmful or offensive contact, or act w/substantial certainty that contact will result from his actions ( Garratt ), but intentneed not be malicious

2. Restatement 29 13 (a) - Intenta. The act is done with the intention of bringing about a harmful or offensive

contact or an apprehension thereof to the other or a third person

3. Not sufficient for D to know that his action merely risks harmful or offensive contactif there is no intent to cause such contact (Need either desire or substantial certainty)4. Substantial Certainty

a. Garratt v. Daileyi. FACT SUMMARY: Brian Dailey (D) pulled a chair out from under

Ruth Garratt (P) as she began to sit down in it.ii. CONCISE RULE OF LAW: The intent necessary for the commission

of a battery is present when the person acts, knowing, with substantialcertainty, that the harmful contact will occur.

1. issue: Did D know (with substantial certainty) that harmfulcontact would occur? (he is 5 )

2. hold: yes. no intent to harm but substantial certainty that harmwould occur supplies the needed intent. ( constructive intent

iii. Constructive or Knowledge-Based Intent: if you know somethingwith substantial certainty (i.e. that a consequence will follow fromact) then you intend that consequence

1. objection : even though we know X is substantially certain toresult we still may not desire it (e.g. utilitarian problems what about the terrorist who will blow up the world unless youshoot your friend?)

2. this allows D to be held responsible for an act that he didntknow would happen and didnt intend to happen.

b. Substantial certainty must be primary motivationi. Substantial knowledge may be applied to an intentional battery (Must

be primary motivation)ii. Car exploding hypo: manufacturer may have substantial knowledge

someone might get hurt, but it is not their primary motivation.1. doesnt seem like a battery2. but c.f. Fenway shooter seems like a battery. Where do we

draw the line of substantial certainty?iii. Battery requires particularly identifiable victims. Were not going to

use the substantially certain knowledge doctrine in a case where werelinking an action to a broad statistical relationship. Cant have ageneral knowledge, must be specific.

1. this is what distinguishes Garrat from other exs Garrat has a particularly identifiable victim.

c. What is really going on is that courts evaluate the benefit of the action inquestion to society.

i. Fenway shooter produces no social benefit, but production of cars (or cigs.) does.

ii. look to the primary purpose of the activity5. Intent standard is subjective did this particular D have requisite state of mind?

a. note : determining subjective intent is very difficult to do.



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6. Transferred Intenta. Ds conduct too blameworthy to escape liability just b/c wrong victim

harmed b. Individual who actually suffers contact need not be person whom D intended

to harm or offend7. Motives (Malice/Intent to harm) are immaterial to establishing the prima facie

testa. If there is malice, might be liable for punitive damages

b. Vosburg : doesnt matter that D did not have subjective intent to harm; all thatmatters is that it was an intentional act that was offensive or unlawful.iv. Harmful or Offensive Touching/Contact

1. see also Vosburg (above)2. Harmful Contact: Touching is harmful if it injures, disfigures, impairs, or causes

pain to any bodily organ or function.a. Rstmt 2nd, 7 & 15

i. Loss or detriment in fact of any kind to a person resulting from anycause; bodily harm which is a physical impairment

3. Offensive Contact: A touching is offensive if it would offend a reasonablepersons sense of dignity.

a. Rstmt 2nd, 19 (Objective test)i. Offends a reasonable sense of personal dignity

b. Fisher v. Carrouseli. Facts: Fisher (P), while in line at a buffet luncheon, had his plate

snatched from his hands by an employee of the motor hotel (D), whoalso insulted him.

ii. Rule of Law: A battery may be committed even though there is no physical contact with the person's body, so long as there is contactwith something that is attached to or closely identified with the body(Offensive in nature).

iii. note :1. malicious intent found but that is not required; knowledge of

offensive contact is enough.2. offending dignity is not enough; there must be some contact

for battery.a. if no contact look to IIED section

c. Leichtman v. WLW Jacori. Fact Summary: After Cunningham (D) encouraged another talk show

host to blow cigar smoke in Leichtman's (P) face, Leichtman (P), ananti-smoking advocate, filed a battery suit against Cunningham (D)and radio station WLW (D).

ii. Rule of Law: For purposes of establishing liability for battery, contactthat is offensive to a reasonable sense of personal dignity is offensivecontact.

1. Intentionally blowing cigarette smoke can constitute battery,no matter how trivial the incident.

2. Dont need to consider whether the substantial certainty prongof intent applies, b/c D committed a deliberate act.

3. Dont need to consider glass cage defense b/c P alleges Ddirectly blew smoke into his face

v. Causation1. Defendants conduct must directly or indirectly bring (more flexible than

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vi. Lack of Consent1. Implied Consent v. Express Consent

a. Unlawful is whether the touching is permissible and/or accepted by thesocial norms in the context

i. Implied Licenseif the kick occurred on a playground, the conditionsand norms are different than in a classroom. Subjective determinationfrom a reasonable persons perspective.

b. The idea of intent is not intent to harm, but intent to cause some action which

is not consented to by the victim.c. Hypo: If a teacher ordered Vosburg onto the playground, does the impliedconsent of the playground still apply? (tests outer limits of implied consent)

d. In the absence of an implied license, any touch at all might be battery.i. Look to social acceptability of touch

2. ex: Hackbart v. Bengals Interaction between Tort Law and Customa. Rule of Law: Custom among the players will determine what is actually

actionable as batteryi. Call in experts. Custom itself will define contours of appropriate

behavior between the players and determine what is beyond the pale.ii. tort law is just there to back it up.

vii. Damages1. Actual damages not necessary2. Even if no actual harm is suffered, as in the case of some offensive touching, the

court will award at least nominal damages.2. Assault

a. 21 (Restatement Second) Assault if D intends to cause harmful or offensive contact, or animminent apprehension of such contact and does put P in such imminent apprehension

i. Fear not required, only anticipation of such contact; protect Ps mental peace (Grandma canassault a linebacker)

ii. No assault if apprehension/fear is created but that is not the intent of Diii. Similar requirements as battery, except physical contact requirement not present; most

battery will be assault except when P is unaware of the impeding contact (e.g. Hackbart ) b. Two Key Issues: Imminent Harm and Extra-Sensitive P.

i. Harm threatened must be imminent immediate in time, close in space, actual not potential

ii. Extra-sensitive P no liability for making threats that would not satisfy requirements for assault if made to typical person, unless D knows of Ps extra-sensitivity

c. Prima Facie Elementsi. Act by Defendant: Act must be a volitional movement of the body. Words alone are

generally insufficient except where surrounding circumstances force P to rely on merewords

ii. Intent: Same as battery1. He acts intending to cause a harmful or offensive contact w/the person of the

other or a third person, or an imminent apprehension of such a contactiii. Apprehension (As opposed to contact)

1. Plaintiff must be placed in reasonable apprehension of imminent harmful or offensive touching of Ps person and must be subjectively aware of the threat at thetime thereof.

2.iv. Causation: Ps apprehension must be legally caused by defendants act or something

defendant set in motion.d. Restatement Second, 21: Assault



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i. An actor is subjected to liability to another for assault if 1. He acts intending to cause a harmful or offensive contact w/the person of the other or

a third person, or an imminent apprehension of such a contact, and the other isthereby put in such imminent apprehension.

a. An action which is not done w/the intention stated in Subsection (1,a) doesnot make the actor liable to the other for an apprehension caused therebyalthough the act involves an unreasonable risk of causing it, and, therefore,would be negligent or reckless if the risk threatened bodily harm

e. Read v. Coker Standard:i. An assault is committed when there is a threat of violence exhibiting an intention to assault(i.e., do physical violence to another), coupled with a present ability to carry the threat toexecution.

ii. note: doesnt require an actual attempt or striking.f. Beach v. Hancock Standard (Apparent Ability/Unloaded Gun)

i. Fact Summary: Hancock (D) aimed a gun at Beach (P) who was 50ft away, and snapped thetrigger.

ii. Rule of Law: An assault is an unlawful attempt, coupled with an apparent present ability , t place another in apprehension of imminent harm.

3. False Imprisonmenta. Restatement (Second) of Torts, 35 (False imprisonment)

i. He acts intending to confine the other or a third person w/in boundaries fixed by the actor,and

ii. His act directly or indirectly results in such a confinement of the other, andiii. The other is conscious of the confinement or is harmed by itiv. An act which is not done w/the intention stated in subsection (1, a) does not make the actor

liable to the other for a merely transitory or otherwise harmless confinement, although theact involves an unreasonable risk of imposing it, and, therefore, would be negligent or reckless if the risk threatened bodily harm

b. Notes:i. not imprisonment if there is consent.

ii. May be effected by words alone, acts alone, or both.iii. Unjustified restriction of the Ps freedom of movement, not harmful or offensive contact.iv. Confinement must be total.v. Plaintiff must be aware of the confinement, or must suffer some actual harm

1. f P is locked in a room but doesnt know she is locked in, it most likely isnt falseimprisonment

2. if P is unconscious but contracts scurvy (harm) then it is false imprisonmentc. Intent: This is measured by the desire or belief in substantial certainty Intent to confine is

requiredi. without intent D is not liable for merely transitory or otherwise harmless confinement.

d. Confinement: Plaintiff must be restricted to a limited area without knowledge of reasonable meansof escape and must be aware of the confinement at the time thereof or else be harmed by theconfinement.

i. Plaintiff must be held within certain limits (Not prevented from entering certain places)ii. Being confined to a country is not false imprisonment.

e. Cause of confinement (Gilberts)i. Physical force exercised against plaintiff or a member of plaintiffs family

1. Physical force is not necessary if there is a threat of force.ii. Threats of immediate harm

1. Threats: Defendant threatens to use force if P tries to escapeiii. Actual or apparent physical barriers to escape (Includes refusing to release plaintiff

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iv. Assertion of legal authority and Ps submission thereto.1. Ds assertion that he has the legal authority to confine P. True even if D doesnt in

fact have the legal authority, so long as P reasonably believes that D does, or is indoubt about whether D does. (ex: citizens arrest- most states pass laws allowingdetention if reasonable cause for a reasonable amount of time - till an officer arrives)

f. Whittaker v. Stanfordi. Facts: Sanford (D), leader of a religious sect, convinced Whittaker (P), a sect member, to

return to the United States from Syria aboard the sect's yacht, but upon arrival in the United

States, would not let her disembark.ii. Rule of Law: To commit a false imprisonment, it is not necessary that the tortfeasor actuallyapply physical force to the person of the plaintiff, but only that plaintiff be physicallyconstrained.

g. Rougeau v. Firestonei. Facts: Rougeau (P) was asked to wait in his employer's guardhouse during an investigation.

He sued the employer for false imprisonment when it was determined he had nothing to dowith the suspected theft.

ii. Rule of Law: False imprisonment is the intentional confinement of another within boundaries set by the actor; and P must not consent to this.

iii. No imprisonment because P was never restrained; never revealed to anyone that he didntwant to stay therefore gave implied consent.

h. Sindle v. New York Cityi. Facts: Sindle (P), a 14-year-old boy, was injured when he fell under the wheels of an

Authority (D) school bus when he attempted to climb out after the bus driver locked thedoors to prevent vandals from escaping.

ii. Rule of Law: A person falsely imprisoned is not relieved of the duty of reasonable care for his own safety in extricating himself from the unlawful detention.

iii. Rationale:1. Key here is Restatement 35: Does not make the actor liable to the other for a merely

transitory or otherwise harmless confinement2. also, if there is reasonable justification to engage in the confinement then look to see

whether the execution of it is reasonable.i. Coblyn v. Kennedys

i. Facts: Coblyn (P) was detained by an employee of Kennedy's, Inc. (D) who suspectedCoblyn (P) of shop lifting; employee doesnt identify himself.

ii. Rules of Law:1. (1) If a man is restrained of his personal liberty by fear of a personal difficulty, it

amounts to false imprisonment.a. man didnt object but he was scared; felt he had no alternative.

2. (2) If a shopkeeper has reasonable grounds to believe a person has committed or isattempting to commit larceny of goods for sale on the premises he may detain that

person in a reasonable manner for a reasonable length of time.a. use an objective standard (prudent and cautious man) for what is reasonable

grounds for detention.4. Intentional Infliction of Emotional Distress (IIED) outrageous conduct causing severe emotional

distress ( 46 )a. IIED: Intentional or reckless infliction, by extreme and outrageous conduct, of severe

emotional or mental distress even in the absence of physical harm.i. Not battery or assault but D still acts in manner intended to severely interfere with Ps peace

of mindii. Extreme outrageousness required prevents fraudulent claims, doesnt expand liability

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b. Prima Facie Case: Involves extreme and outrageous conduct by defendant, with intent to causesevere emotional distress, causation, and severe emotional distress

1. Act by Defendant: Defendants act must be extreme and outrageous. Words alonemay suffice, but simple assaults are not actionable. The courts will consider thetotality of the circumstances

a. Exceptions: Common carriers and public utilities are held to stricter standard b. Ds liability also includes emotional distress of members of the intended

victims family if their presence was known to D.

2. Intent: D must intend to cause severe emotional distress. However, reckless conductalso suffices (i.e. where D disregards a high probability that his act will causeemotional distress), and intent is inferred where D knows P is particularly sensitive.

a. Note : that the doctrine of transferred intent is not applicable here.3. Causation: Under the early view, demonstrable physical injuries were required, but

under the modern approach, distress alone suffices outrageousness of the conductensures reliability of the claim.

4. Severe emotional distress: The distress must be more than a reasonable personcould be expected to endure.

c. IIED Extra Notesi. Outrageous conduct - extreme and outrageous conduct; conduct that the average person is

not, in our friction-filled world, expected to live with. (e.g. people insult others all the time,not intentional infliction of mental upset). Consider conduct that is normally not outrageous,

but this conduct can be modified slightly to become outrageous: (normally not outrageousconduct becomes outrageous)

1. Continuous (e.g. insulting language; day in, day out)2. The type of plaintiff (e.g. D is insulting a very young child): typical examples are

elders, young children, and pregnant women.3. The type of defendant: common carriers and innkeepers, who are held to higher

standards of conduct. (e.g. bus driver insults you)a. COMMON MISTAKE: it is not enough to find this type of D; you also need

to find the right type of P, a guest, a passenger. (Under the care of D).ii. Damage - IIED is unique

1. Don't have to show damage for assault or battery2. You must show substantial emotional distress (e.g. a few sleepless nights is not

substantial emotional distress)3. but you dont need to necessarily have a physical manifestation of the emotional

distress ( See State Rubbish )iii. Courts usually turn to this tort when you cannot make out another type of tort. This is

particularly true with almost-battery.d. State Rubbish v. Siliznoff

i. Facts: The Association (D) threatened to beat up Siliznoff (P), destroy his truck, or forcehim out of business unless he joined the Association (D) and paid dues to it.

ii. Rule of Law: A cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to seriousthreats to his physical well-being, whether or not the threats are made under suchcircumstances as to constitute a technical assault .

5. Summary of Defenses for Intentional Torts : Consent, self-defense, defense of others, defense of property, retaking of land, recapture of chattels, necessity, discipline, detention for investigation, and legalauthority.

a. note : Contributory negligence is NOT a defense of intentional torts.

II. Privileges/Defenses1. Consent



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a. Most courts treat consent as an affirmative defense; a few require plaintiff to show lack of consentas part of the prima facie case.

b. Restatement 2d 891 (1): Consent is willingness for conduct to occur. Itneed not becommunicated to [D]

c. Different Default views of Consent that a court could employ:i. Consent unless there is a physical struggle

ii. Consent unless there is a verbal noiii. Consent unless actions suggest no

iv. No consent unless actions suggest yesv. No consent unless there is a verbal yesvi. No consent ever

d. Gilberts on Consenti. Types of Consent

1. Actual (express) consent2. Apparent consent What the reasonable person would infer from custom or from

Ps conduct3. Consent implied by law If necessary to save a life or other important interest and

a. P is unconscious or otherwise able to consider the matter b. An immediate decision is necessaryc. There is no reason to believe P would withhold consent if abled. A reasonable person in Ps position would consent

e. Manifestations of Consent 1. Consent may be implied or expressed;

a. implied-in-fact : person acts such that a reasonable person would believe thathe consented to invasion of his rights;

b. implied-in-law: conditions are such that privilege for defendant to act withoutliability is created, as when a doctor treats an unconscious person.

2. Consent, however, cannot be obtained by fraud or duress, nor can it be obtained fromsomeone w/o capacity to give consent.

ii. Silence or Inaction as Consent - silence or inaction may be consent, depending on what areasonable person would think under the circumstances.

iii. Failure to object allows person to infer consent - youre deemed to consent if you manifestconsent outwardly, regardless of inward feelings. (O'Brien v. Cunard - Woman receives shot

but denies consent) One is deemed to consent if he/she manifests consent outwardly. Oneneed not verbally communicate consent. D may infer consent from P's nonobjection.

1. Note: D bears burden of proving consent by P.iv. Informed Consent - Consent must be voluntary and informed. Consent cannot be obtained

where there is a mistake of fact by P, a mistake of law by P, fraud, or duress;1. courts are split on whether individuals can consent to unlawful acts.2. Note: one must have the mental capacity to consent.

v. Statutory Rape1. MINORITY RULE (NY)

a. Barton v. Bee Line - 15-year-old alleges rape; D claims consent (Minority)i. Holding: a female under the age of eighteen has no civil cause of

action against a male with whom she willingly has intercourse, if sheknows the nature and quality of her act.

ii. Any matter of consent to sexual relations must be examined in light of history of violent sexual acts

iii. State of emotional development of 14 yr old is just not that of the18yr old. Historical reality men in every era have sought throughforce or coercive means to attain sex.



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iv. public policy is to prevent promiscuity, but here award to P mightencourage seduction if she knew 'nature and quality of her act.'

2. MAJORITY RULE: Most courts allow for recovery even if there is consent of aminor.

a. Most states: consent to a criminal act is totally irrelevant in civil cases;consent doesnt constitute privilege, victims still allowed to sue for damages.

vi. Medical Procedures - where doctor can ascertain options, and no emergency exists, a patient should be informed of alternative treatment and given opportunity to decide.

1. Reasonable rule: Where a doctor can ascertain in advance of an operationalternative situations and no immediate emergency exists, patient should beinformed of alternative possibilities, given a chance to decide

a. Bang v. Charles T Miller Hospitali. Facts: A doctor (D) performed a prostate operation on Bang (P) and,

during this operation he severed Bang's (P) spermatic cords.ii. P consented to operation, but question if consent to cut his spermatic

cords should go to the jury.iii. Rule: In non-emergency contexts, consent must be informed. Allows

an exception for emergenciesiv. Duty of disclosure: patient should be told both expected outcome of

procedure and expected result if procedure is not performed.2. Non-Emergency Situations Where Consent Cannot Be Obtained (Need

conditions proximate)a. In absence of proof against partial consent, the implied consent is presumed.

i. Kennedy v. Parrot1. Facts: ovaries During an appendectomy doctor punctures

ovarian cysts not authorized earlier b. Where patient cannot give consent, and no other person nearby who is

authorized to give consent, general consent is given to the doctor to remedyconditions proximate to the original incision which, in the doctors

professional judgment, should be remedied at the time of the procedure.c. Limitations:

i. negligence still appliesii. explicit no = no implied consent

iii. if local anesthetic, not general, then no implied consent (can ask)iv. if husband outside door, consent not implied

d. Clash between technology/efficiency and autonomy/privacye. Ask how urgent, how necessary, how foreseeable (sperm cords v. internal

injury undetected), what would a reasonable doctor have done. Murky area.3. Emergency - Presumption of no consent unless certain aspects are satisfied

a. In emergency, where person or family member cannot give consent andimmediate decision is necessary, doctor can extend authorization to operatew/ implied-in-law consent unless he has reason to believe patient wouldobject.

4. Rstmt 2nd, 892D. Emergency action without consent.a. Conduct that injures another does not make the actor liable to the other, even

though the other has not consented to it if:i. a) an emergency makes it (apparently) necessary, in order to prevent

harm to the other, to act before you can obtain consent from theother / a proxy, AND

ii. b) the actor has no reason to believe that the other, if given theopportunity to consent, would decline.

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a. Reasonable/Objective Patient Standard : Initial duty is to disclose any risk that a reasonable person would attach weight to in making a decision

i. Not fully up to doctor, nor should there be full disclosure.ii. In order for doctor to be held liable for failure to disclose under this

standard, the patient must show that additional disclosure would haveled to a different decision, not just that it was significant.

b. Canterbury v. Spencei. Facts: Young man with back pain who had back surgery performed,

but then fell out of bed and paralysis set in. 1% chance of paralysisfrom surgery.ii. Rule: Initial duty is to disclose any risk that a reasonable person

would attach weight to in making a decision. Have to show that ideathat the objective patient wouldnt have submitted to the procedurehad the disclosure been made.

iii. Reasonable Doctor Standard (court does not adopt this ): Hinges theduty of disclosure on the customs of practitioners

6. Exceeding Scope:a. Even if P does consent to an invitation to her interests, D will not be

privileged if he goes substantially beyond the scope of that consent.i. Ex: consent to operation on right side but Dr. does both sides while

unconscious. Left side actionable for battery. b. However, an emergency may justify extending the surgery beyond that which

was consented to.vii. Sports - Participation in violent activity--general roughness of the game--does not imply

consent to all contact whatsoever.1. Where harm is against the rules (and expected contact) there is no implied consent.

(Hackbart v. Cincinnati Bengals - football player is injured after whistle)viii. Minors and Consent

1. Hudson v. Crafta. Facts: Illegal prize fight involving minor.

b. Consent is not a defense. No consent may actually harm minors (e.g.incentive to violate statutes designed to protect).

ix. Consent checklist1. Does plaintiff have capacity to consent (e.g. children and mental incompetents)?2. Was the consent expressly given or is to be implied? Were words used?

a. Apparent implied consent can be due to (1) custom and usage or (2) plaintiff'sconduct.

i. Game of touch football: custom and usage of game of footballimplies consent to being tackled.

ii. By standing in the line where vaccinations are being handed out, onecan assume consent

3. Look out for facts where consent was given b/c of a. Mistake

b. Coercionc. Fraud (representation)

4. Did defendant exceed the boundaries of the consent (e.g. kicking someone in thegroin after tackling them on the football field?

2. Insurancea. First party insurance (Insurance for ones property)

i. Two common examples: fire (ones property is insured against fire) and collision (ones car is insured against damage in a collision)



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ii. Insured party is the first and only party besides the insurer; the insureds rights do notdepend on any other person and the insured deals directly with his or her own insurancecompany, not the insurance company for another person.

iii. Another common feature of these policies: insured is entitled to recover upon proof of losscovered by the policy; it is not necessary to show fault on the part of anyone. Even theinsureds own fault, short of intentional damage to own property, is irrelevant.

b. Subrogation (a feature of some, but not all first party insurance)i. Insurer stands in the shoes of the insured and takes the insureds claim against the

tortfeasor c. Liability Insurance (Protect loss through legal liability)i. Example:

1. if an industrys factory burned down, it would need first party fire insurance to protect against loss.

2. If the industry negligently injured a worker and were required to pay a judgment inhis favor, it would need liability insurance to protect against loss

ii. Liability Insurance as Second-Party Insurance1. We have shifted to a more social view of insurance as a device for assisting the

injured which has consequences in practice; e.g. the insurer takes charge of investigating and defending the claim.

2. Injured person must deal not with his own insurer but with the insurer for the allegedtorttfeasor

d. Liability Insurers Dutiesi. Depend on K between insurer and insured

ii. Policy/coverage defenses may be available (i.e. saying our policy doesnt cover this, yourescrewed!

iii. Usually, though, the insurers defense is on the merits; asserting that insured defendant wasnot negligent or injured plaintiff was guilty of contributory negligence, etc.

1. Two main obligationsa. Pay judgments against the insured

b. Defend the insuredi. Goes with the insurers right to control investigation, negotiation,

settlement of claimii. Insurer seems like the defendant (the one with whom plaintiff must

deal) stands in Ds shoese. State Farm v. SS & GW

i. Issue of Kpre-Vosburg definition of battery where the actor has to intend the HARMnot just the ACT--did G.W. intend harm? If intended harm, then State Farm doesnt pay(clause in K which excludes coverage for intentional injuries).

ii. G.W.s settlement for intentional tort did not throw out claim that he did not intend harmunder policy terms since policy terms were pre-Vosburg (battery only if intention to commita harm), not post-V (battery if intention to commit an unlawful act). Issue of Consentpost-Vosburgliable in tort for committing an unlawful act

1. MajorityIf G.W. did not know he could transmit herpes, then her consent is valid.2. DissentG.W. not disclosing that he had herpes vitiated her consent to sex.3. To determine liability based on consent, questions as to what background liability

should be (no liability without protection, without sores, etc) and if parties can optout (disclosure, consent, etc.).

4. Influence of insurance on tort claimsa. G.W.s catch 22: tort suit (unlawful act) is the strongest if G.W. says he

disclosedi. This would make his insurance coverage the weakest (intend to harm)



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b. Under-litigation--S.S. wants compensation for her injury, but does not wantto press so hard so they find intentional tortif so, the insurer ($) wouldnthave to pay

c. Strange phenomenon of would-be defendants rooting for the majority thatexcuses the behavior

3. Workers Compensationa. General Notes

i. On liability dimension, these statutes established strict liability for employers for on-the-job

injuriesii. On mutability dimension, workers comp became essentially mandatoryiii. On damages dimension, damages were lowered below what they would be in a typical tort

case1. Pain and suffering unavailable; scheduled amounts for losses2. Ease of administration, no need to determine fault3. Deal struck between capital and laborin exchange for ease of liability workers

would give up some claims b. Intentional torts exclusions to workers comp (some states)

i. Van Fossen1. Employer subjected employee to hazardous conditions2. Idea is that the courts are willing to go along only so far with the bargain struck

between capital and labor 3. When they see conduct with a certain level of liability, they want to take it out of

workers comp and make the full range of tort remedies availableii. Vicarious Liability/Respondeat superior

1. Responsibility of employers for their workers torts2. There must be a master-servant relationship (servants activities controlled by mater)3. Servant must also have been acting in scope of relationship when tort occurred)4. Difficult to prove (Intentional Torts)

c. Kerans v. Porter Paint Co. (Sex Harassment)i. Sexual harassment not bound to the Worker Compensation scheme

1. Exclusivity-of-remedy (employers not liable for workplace injuries.) Intended tocover physical harms, not psychological harms. This was later amended to include

psychological injury only if arising from a physical injury.a. Ryan : it was found that a non-physical injury giving rise to physical

consequences is an injury within workers comp2. Court in this case says that certain purely psychological injuries such as sexual

harassment are not precluded by the exclusivity provisions. Court says that this isoutside the purview of workers compensation, meaning that it cleans the slate for traditional tort analysis.

d. Tort liability against the employeri. At Common Law: Employer was only liable if employer had inferred intent to harm

employeeii. Under workers comp statutes, employers are strictly liable and the defenses of contributory

negligence and assumed risk are abolishediii. However, the employers liability is limited to fixed amounts for certain injuries and an

administrative agency hears most disputed claimsiv. As well, most workers comp statute provide that workers comp is the only remedy

1. Thus, with few exceptions, there is no tort action against the employer 2. An employee injured by a third person, though, is free to bring a tort suit against that

third personv. Catch 22:



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1. Courts are split. Older courts hold that the intervener steps into the shoes of the person aided (Minority Rule/Traditional View), and thus bears the risk of mistake but Restatement 2nd gives a reasonable mistake defense to the intervener (Modernview).

c. Defense of Propertyi. A person generally may use reasonable force to defend her property, both land and chattels

(Nondeadly Force).1. Warning required first: The owner must first make a verbal demand that the intruder

stop, unless it reasonably appears that violence or harm will occur immediately, or that the request to stop will be useless.ii. Property owner may not use deadly force to protect property unless a person is threatened as

well.1. The owner may use deadly force only where:

a. Non deadly force wont suffice and b. The owner reasonably believes that w/o deadly force, death or serious bodily

harm will occur.i. Burglary: A homeowner is typically allowed to use deadly force

against a burglar if they reasonably believe that nothing short of deadly force will keep them out.

iii. Defendant may use non-deadly force if (Gilberts):1. Intrusion by O is not privileged (or P led D to believe this)2. D reasonably believes force is necessary to prevent or terminate the intrusion3. D, prior to the use of force, makes a demand that the intruder cease or desist (unless

the demand appears futile)iv. Katko v. Briney

1. Facts: The Brineys (D) placed a "shotgun trap"/spring gun in one of the bedrooms of a house owned, but not occupied, by them, and Katko (P) was injured by this trapwhen he broke into the house.

2. Rule of Law: Reasonable force may be used to protect property, but not such force aswill take human life or inflict great bodily harm.

3. Mechanical Devicea. You can use mechanical devices to protect property only if you would be

privileged to use a similar degree of force if you were present and actingyourself.

b. Need adequate warningc. Reasonable mistake: An owners right to use a dangerous mechanical device

in a particular case will be measured by whether deadly force could have been used against that particular intruder.

v. Restatement 79 (Defense of Property )1. Can use reasonable force after asking the other to stop/leave/desist unless it seems

likely it wont make a difference (77(c))5. Property Torts

a. Doctrine of Necessityi. Under the defense of necessity, D has a privilege to harm the property interest of P where

this is necessary in order to prevent a great harm to third persons or the defendant herself.ii. Economics viewpoint: parties should have bargained to reach an agreed upon price (Coase

Theorem). Only works when transaction costs are low (hard to bargain in tempest)1. Coase Theorem: Absent transactional costs, the rule of liability doesnt matter b/c

parties will contractually arrive at the best rule (according to the market) b. Private Necessity : If a person prevents injury to himself or his property, or to the person or

property of a third person, this is protected by a privilege of private necessity, if there is no less-damaging way of preventing the harm.



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i. Qualified Privilege: Where the privilege of private necessity exists, it will be a completedefense to a tort claim where P has suffered no actual substantial harm. But if actualdamage occurs, P must pay for the damage she has caused.

ii. Vincent v. Lake Erie Transportation Co1. Facts: Ds ship unloading at Ps dock when a storm arose and was too dangerous to

leave; mooring lines were continually replaced as they chaffed; dock damaged2. Holding: D had conditional privilege only. Liable because ship was saved at expense

of dock

3. Rule of Law: When Ps property rights are suspended and D is privileged to usePs property, D is obligated to pay for any damage that results4. Policy Justification: As between two innocent parties, the one whom nature put at

risk should bear the cost of saving himself, rather than the owner of the property thatsaves him

iii. Ploof v. Putnam :1. Facts: Plaintiff docked to defendants dock and defendants servant cut him off,

causing damage.2. Rule of Law: Necessity justifies the entry upon the land of another.3. One has a privilege to use anothers property to protect oneself and the

property owner cannot refuse the use of his property as a haven. Privatenecessity afforded plaintiffs a limited property interest and so defendant isliable if they cut them off.

4. Endowment effect idea that people demand more to give up an object that theyalready own than they would pay to purchase the same object

iv. Unqualified Privilege1. Single-sided liability -- boat owner can use but not pay damage2. Efficient with PERFECT information

v. Remember!1. Scope of dock owners property right dependent on tort liability rule2. Deterrence/resource allocation explanation: party with stronger legal property

interest usually has less incentive to prevent damagevi. Coase Theorem

1. Rule: Absent transactional costs, the rule of liability doesnt matter b/c parties willcontractually arrive at the best rule (according to the market)

2. Potential Transaction Costs/Problemsa. Cash-flow (liquidity) problem cant always convert goods into money

b. Agency costs idea that preferences can be expressed incorrectly;transaction costs between the owner and agent

c. Ill-specified legal rights legal rights arent always crisp and precise; thereare trade-offs involved in the rule-standard choice, can affect the partysability to bargain in a way the parties specify

d. Strategic behavior Adverse selection, moral hazard, sequential care, etc.6. Boats and Docks: Game Theory Model to determine which rules (Liability or Property) lead us to

efficient/desirable resulta. Property Rights

i. Actor must buy the entitlement from the owner, ex ante, otherwise, the owner can call the police to enforce his property rights

b. Liabilityi. If the actor destroys the initial entitlement, and the actor is willing to pay objective (market)

value then we have liability rulec. Qualified Privilege

i. Necessity based qualified privilegeboat owner can dock in time of emergency, if kickedoff can get damages later, if damage to dock, then boat owner liable



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d. Low Transaction Costsi. Three Rules: All lead to efficient result when transaction costs are low, and are generally

accepted in legal practice today.ii. Mathematical demonstration of the Coase Theory (resources are adopted efficiently

REGARDLESS of the rule adopted) and why qualified privileges are superior to unqualified privileges

1. General Rule (Property Rule)a. Dock owner property rule protection

i. Not liable if you kick boat off 2. Necessity Rule (Double Sided Liability)a. Qualified Privilege

i. Can use dock and can sue if kicked off (Ploof). If damages to dock, boat-owner pays (Vincent)

3. Reverse of General Rule (Property)a. Boat owner has property rule protection to use the dock. Can call sheriff to

enforce right. Entitlement becomes vested with the boat-owner e. High Transaction Costs

i. Necessity rule is the only efficient result . Liability steps in when transaction costs are high.(Justifying rationale of Vincent)

f. Unqualified Privilegei. Single-Sided Liability: Boat owner can use but not pay damage

ii. Efficient with PERFECT information.1. But with asymmetric information unqualified rule may lead to inefficient result

(pooling equilibrium; the dock-owner will allow for boat to dock because he doesntknow what type of boat there is and he is risk-neutral).

iii. Model shows us why Vincent court held boat owner liable even though not negligent efficient!

iv. Contract presumes no difference between property and liability valuations.g. If liability rules are efficient, why an exception to property rules?

1. More costly (we assumed costless)2. After the fact review means court does objective valuation. In private contracting

under property rules, the partys do subjective valuation (more confidence, let youdecide if different value other than market)

ii. Punitive damages are heaped on to enforce property rulesiii. The privilege in the privilege is that in Vincent only damages are paidno punitive

damages since he did not act wrongly

III. Causation1. Actual Causation

a. How to identify person responsible, nature of harm, and the damage?i. Cause-in-Fact / But-For Test: "But for" the presence of D, would x have happened?

Connection b/w D's conduct and resulting injury to P? You have to have specific and generalcausation in order to have this.

ii. Two types of causation:1. General causation: whether the activity alleged is inherently capable of causing the

sort of harm suffered by P. (e.g. can car fumes harm cows?)a. Circumstantial Evidence

i. May be enough to prove causation even though there is no direct proof or evidence

ii. May be stronger than direct evidence when none is available (i.e. noone witnessed a particular spark from smokestack hit hotel) or whenother factors weaken the direct evidence (witness was Ps brother).



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1. Also, there are times when proving a fact circumstantiallyrather than directly could be advantageous. (Direct evidenceis only as strong as the credibility of the witness.)

iii. Hoyt v. Jeffers (Smokestack Case)1. Facts: Hoyt (P) claimed that a saw mill owned by Jeffers (D)

emitted sparks which set fire to Hoyts hotel and destroyed it2. Concise Rule of Law: Circumstantial evidence is admissible to

show causation, and it is for the jury to decide how much force

and weight it is to be given to such evidence.iv. Pure statistical probabilities are not enough to show causation1. Smith v. Rapid Transit Inc. (lady hit by bus)

a. Facts: Smith (P) claimed that a bus had forced her car off the road causing injuries. Rapid Transit Inc. (D)denied that it was its bus which was involved.

b. Rule of Law: Causation cannot be shown bymathematical probabilities in the absence of other convincing evidence.

v. Problem with the use of stats is that we may be asking the wrongquestion. Multiple possible defendants: how likely it was the Ds buson the road v. how likely it was the Ds bus that negligently caused theaccident.

1. The reason we feel funny with statistical evidence is that youcan find someone guilty despite the fact that the numbersdont directly relate to the Ds guilt. This therefore means thatthe Ds guilty is perfectly consistent with someone elsecommitting the tort, for example.

vi. Distinguished from circumstantial evidence in Hoyt b/c all sparks are bad/negligent. But the high probability of the Ds bus being on theroad does not link the Ds actions to the negligent act.

vii. Problem with the use of stats: truth in the courtroom-- may bemisleading, jury may not understand significance, misrepresentationof groups/individuals

viii. Probabilistic reasoning in casinos1. Gamblers fallacy and the hot hand fallacy

ix. Jury craves testimony, even if it is less reliable than probabilities.Role of jury is ritualistic.

2. Specific causation: Whether the activity alleged did specifically cause the harmsuffered by P. (e.g. did D's car fumes harm the cows?)

a. Scientific expert testimonyi. Correlation v. Causation: correlationsome relationship is present,

but we cant rule out if another factor caused it, or which of the twofactors caused it. P-valueshows the confidence level of what

percentage of the results are caused by chance alone.1. Should the tort system adopt a similar method of confidence

levels when determining causation? If so, what level?a. Data may not exist

b. Too high burden of proof on P (may be beyondordinary level of proof required)

ii. Frye Test admissible scientific testimony must be based ongenerally acceptable techniques (Benedictin Cases p. 110-1).Good idea? Look to scientific community to decide if test has merit(not courts)



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iii. Daubert Standard p. 111general acceptance rule from Fryenot necessary; gives courts access to ruling on the merits of the testitself. (Problem: may be too much for judges to handle; toospecialized).

iv. Does the data we have give a basis for rejecting the hypothesisthat there is no link?

1. Type I rejected a true hypothesis; this is the more importanterror for science

2. Type II do not reject a false hypothesis; this is the moreimportant error for tort lawa. Not rejecting is equivalent to acceptance for tort law

b. Cant wait for more data, have to make a callb. Multiple Defendants - Alternative Liability

i. Joint and Several Liability1. Both parties can be joined in a single suit and each party is liable to the full extent of

the injuries irrespective of the relative faultsa. If plaintiff only sues one party, its that partys responsibility to collect from

others2. Traditional Bases of Joint and Several Liability

a. Two independent tortfeasors cause an indivisible harm (both actuallycontributed to the harm). You cant separate out the individual components.A installs power line, B inspects, C is injured = indivisible harm caused byinstaller and inspector.

b. Acting in concert (both scheme to carry out the negligent event). A and Bdecide to beat C up. Even if 100% of harm caused by A, both liable.

ii. Spitball Rule :1. Where two or more people are possibly the sole cause of a harm, and P has

introduced evidence that one of the two persons is culpable, each D has the burden of showing that the other person was the sole cause of the harm" Unfair to denyrecovery to P b/c she can't pinpoint cause specifically.

a. Summers v. Ticei. Fact Summary: Summers (P) sued two defendants for personal injury

caused when both defendants shot in his direction.ii. Rule of law: When two or more persons by their acts are possibly the

sole cause of a harm, and the plaintiff has introduced evidence thatone of the two persons is culpable, then the defendant has the burdenof proving that the other person was the sole cause of the harm.

iii. Ybara Rule: Where P is unconscious to receive medical treatment and injured bynegligence, and a range of actors could have caused injury, D's bear the burden of disproving their own tort liability. Simply because P is unable to identify singleculpable actor does not preclude remedy.

a. Ybarra v. Spangard - Patient is under anesthesia when one or more of anumber of caregivers harm him

i. Facts: Patient is under anesthesia when one or more of a number of caregivers harms him

ii. Notes: P unable to produce evidence for an injury that occurred butwhich stinks of negligence; P only needs to satisfy res ipsa loquitor (inference of negligence by showing it was not an ordinaryoccurrence) and then show, on top of this, that one of the Ds musthave been the cause of the harm. Leave it to Ds to sort out liability,

prove their own innocence.



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iii. Justification : All of the Ds were involved in a common enterprise(not necessarily tortuous) and had a duty of care (even though all Ds

probabilities of causing harm may not be equal)2. Market-Share Liability

a. Sindell v. Abbott Laboratoriesi. Facts: Ps sued manufacturers of drug DES because of injuries they

allegedly suffered as a result of exposure to DES in uteroii. Rule: If P joins a substantial share of market representing

production, then the burden of proof shifts to the Ds to prove theydid not supply the product to the P. If D did not make such asshowing, then each is liable for the proportion of their marketshare as opposed to the full extent of the injuries (rejectedSummers).

b. Benefitsf i. Underlying theory is that once it is clear that each Ds DES injured

some of the Ps, Ds should not escape liability merely because Pscannot show which D injured which P

ii. Theory is that in the long run each defendant only pays according tomarket share, it will all sort itself out

c. Problemsi. Corrective justice is less well served b/c there is not matching up of

each P w/ D whose DES injured her; wrong is corrected, but notnecessarily by party who wronged P

ii. Relevant market-share data is not always available, especially whenrelevant time period is 20 or more years before suit

iii. If there are alternative causes of disease suffered by Ps, market-shareis not accurate surrogate for total amount of disease caused by anygiven D b/c cause of disease in some people cannot be traced to anyof Ds

iv. Imprecision/unfairness (which Ds brought, not all Ps sue); if certainDs can get off, that contradicts theory that liability will be equallyspread; substantial percentage of the market damages against a D

based on how likely to have cause harm. Highly controversial ruling.v. Usually it is not feasible to sue all possible Ds

3. Doe v. Cuttera. Facts: Hemophiliac contracted AIDS and sued two providers of clotting agent

alleging that they had been negligent in preventing the transfer of AIDSthrough their products. Question of whether the two could be held jointly andseverally liable or whether the defendant would have to prove whichcompany provided the tainted clotting agent.

b. Holding: Doe rejected alternative liability (Market-Share, Summers, etc.).i. Why?

1. Court used statutes limiting joint and several liability toindicate the public policy desiring a restriction of liability(even though Market Share Liability is different than that of Joint and Several P only gets percentage represented, notfull).

2. Not selling a fungible (interchangeable) product3. Goods here could be traced to a specific producer

b. Concurrent and Successive Causationi. Two or more causal agents would, independent of each other, have caused plaintiffs harm.

ii. Dillon v. Twin State Gas & Electric Co.legalforms.ilrg.com Page 20 of 66


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1. Boy electrocuted by wire he grabbed as he started to fall off the bridge2. Look at the alternative state of the world

a. if he would have survived otherwisei. damages would be for the harm caused which included death

b. if he would have fallen and diedi. then only liable for pain and suffering caused by the shock

c. if he would have survived, but in a maimed statei. liable for difference in maimed state and death

3. evidence of alternative state of the world is only admissible when two causal agentsare part of the same causal event4. ask, but for the defendants negligence what would have happened?

iii. Kingston v. Chicago1. two fires join 900 feet from the property and wipe out property2. Look to how the mystery fire started to determine defendants liability

a. If it was natural, no liabilityi. Not responsible for acts of God

ii. Preserve natureiii. In this case, it is similar to the but for test in Dillon

b. If it is manmade, then there is still liabilityi. joint and several liability

3. part is consistent with Dillon and part is nota. defendant gets to rely on fortuity that other fire was natural

b. may be unsatisfactory, but it is the rule in this caseiv. All we have here is actual causation

1. but for causation only gets so far 2. look to proximate cause too.

IV. Negligence1. Origins (negligence vs. strict liability)

a. Struggle between strict liability and negligence as the standard1. strict liability for intentional, esp. with high transaction costs

b. When should we also require fault in addition to harm?c. Traditional cases

1. two kindsa. writ of trespass

a. direct harm b. unlawful actsc. strict liability applied here

b. action on the casea. indirect injury to the plaintiff

b. standard roughly similar to negligence2. boundaries can be tenuous

d. Could only bring one of these writs1. out of luck if wrong

e. Scott v. Sheperd 1. Facts:

a. Sheperd threw lighted squib into market stall and it was thrown from one toanother until it came to rest and injured Scott

b. Scott sues Sheperd in trespassc. sheperd threw into a crowded market thinking that it would hurt someone

a. foreseeable that somebody would get hurt.2. Original judge



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a. it is unlawful act, so it falls under trespass and then must be direct harm b. judge says it was one event quickly in succession

3. Judges on Appeala. Blackstone

a. all sorts of intervening steps, so it is indirect harm b. the plaintiff brought the wrong writ and was out of luck c. But Ryal, last actor, was negligent in not throwing it into alleyway

i. Blackstone would support writ of trespass by Scott against Ryal

d. Policy argumentsi. not just first actor--want to make the intermediate actors morecautious

ii. cant be the case that we can have joint and several liability for allintervening actors either

b. Naresa. Emphasized that it was an illegal act and other acts flowed from this act

b. Trespass okay herec. De Grey

a. Agrees with Blackstones principles but thinks it is direct here with only3 intervening actors

b. Believes that the present action is maintainable on trespassc. Like transferred intent

f. Hot Air Balloon case briefly mentioned1. take into account foreseeability of harm

g. Brown v. Kendall 1. defendant is beating back fighting dogs with stick and causes a harm to plaintiff who

brings action of trespass2. direct and immediate harm

a. if we accept the settled distinction from Blackstone it should be a writ intrespass which would be strict liability.

3. Shawa. harm was not caused intentionally

b. adopts the rule of whether the defendant acted with ordinary care.c. If cause of action arises, it is trespass, but the strict liability dicta isnt

followedd. Who bears the harm?

a. if they are both careful, plaintiff bears the harm b. if the plaintiff is not using care and defendant is, then plaintiff bears harmc. if neither are careful, then plaintiff bears harmd. if plaintiff is careful and defendant is not, then the defendant bears the

harme. adopts negligence with defense of contributory negligencef. Burden was on the plaintiff to show that there was something other than

ordinary care.h. Reasons for adoption of negligence

1. Some scholars thought it was designed to provide implicit subsidy to burgeoningindustry

2. Another view was that it suffered from a biased collection of cases in casebooks3. Make the plaintiff responsible for lack of care

i. What if both act with care?1. Yes-Yes box

a. under strict liability with contributory negligence, then it is the defendant b. under negligence rule then it is plaintiff



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c. No real fairness or deterrence arguments to make about this boxa. who bears inevitable harm in the world.

j. Fletcher v. Rylands1. Facts:

a. Defendant builds a reservoir on the property, water seeps through and floods themine below plaintiffs property

b. He didnt know land was weak, wasnt negligent, and wasnt unlawfulc. Plaintiff also blameless

2. Lower courta. Bramwell looks at this situationa. The affirmative act of digging creates sole causal element

b. Strict liability should be applied against defendant b. Martin

a. There is no trespass or unlawful act, so the defendant should not have payi. Kysar asks, isnt it a direct harm, so isnt there a trespass?

ii. but could argue that indirect cause was weakening of subterraneansurface

b. argues that common law default rule is negligencec. Barron Pollock

a. agreed with Martin so negligence wins3. Up to next chamber to Justice Blackburn

a. mischievous use of landa. default is strict liability

b. negligence is applied if the risk is assumed by the plaintiff i. such as highway cases

ii. but the plaintiff here did not assume the risk of mischievous water b. if not mischievous use of land

a. standard is negligence b. defense if the plaintiff was faulty (contributory) or it was the act of God.

4. up to highest chamber a. left with strict liability for non natural or negligent use of land

2. Law and Econ (Negligence v. Strict Liability)a. In order to understand these cases, put on law and econ hat

1. see The Economics of Mills and Mines handout2. when would we adopt strict liability standard instead of negligence standard

a. critical difference: strict liability takes account of activity levels in a way thatnegligence doesnt

b. so a strict law and economics adherent (e.g. Posner) will say: we will findstrict liability in the law in those areas where we think the behavior of D isrisky even when taking care

c. use strict liability here to apply an additional deterrence effect, not just the basic insurance effect.

d. this is indeed what you get in the common lawa. e.g. Rylans v Fletcher court applies strict liability because activity

levels matter in this type of areae. Restatement Section 520

a. Apply strict liability for abnormally dangerous activities b. Six factor test 520c. 520c inability to eliminate the risk by the exercise of reasonable cared. modern descendant of Fletcher

3. Law and economics explains law as a quest to minimize cost from accidentsa. usually this is by adjusting care levels (via negligence)



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b. but in certain cases it is deterring activity levels (via strict liability)4. Also look to the administrative costs of apply tort laws

a. It is hard to tell whether strict liability or negligence imposes moreadministrative costs

5. Summarizinga. unilateral accidents where only Ds conduct is relevant either SL or NEG

gives us efficient level of care. (push) b. amount of info. court needs in order to apply efficient liability standard is

greater for NEG than for SL court needs more info to set that standard properly in NEG (advantage SL)c. activity levels SL has the potential to discipline activity levels in a way that

NEG doesnt (at least according to conventional wisdom) (advantage SL)d. administrative costs seem to be indeterminate not clear which is more

costly (push)e. so SL seems to be the winner on the scoreboard, but in reality NEG is the

winner and SL is the exception to the default rule of NEG.a. Why? Why does SL only show up as an exception in 519?

b. in this yes-yes box, it could be that courts are looking to other externalities and benefits that accrue to society

c. So now our rule might be: when we think there are net negativeexternalities we want to apply SL; if we think there are net positiveexternalities we want to apply NEG.i. net positive externalities if judge thinks that an activity has net

positive externalities then we might want to encourage that activity by subsidies (through tort)

ii. net negative externalities beasts or other nuisances might want tomake Ds internalize all these externalities (through strict liability)

iii. Supported by cases and Holmes arguments b. Powell v. Fall

1. British case2. Sparks from an engine damage rick of hay3. Dangerous Activities held to SL

a. Dont allow for damages to be externalized4. If after SL the activity cannot pay for itself then we should celebrate

a. It wasnt socially useful.c. Brown v. Collins

1. NH American case. Come over to American law in contrast to above cases in Britishlaw

2. Defendants frightened horses from railroad engine hit plaintiffs post3. Repudiates Rylands v. Fletcher and says English law based on outdated principles4. Applies negligence and says that D was not negligent, therefore entitled to judgment5. Support for the idea of positive externalities

a. Benefit to civilized societyd. Losee v. Buchanan

1. American Case2. Social needs for dams, etc.3. Person damaged receives compensation for externalities accruing to society

e. England v. America at this time1. England thinks industry is polluting and damaging2. America thinks that industry is lifting us out of barbarism.

f. Stone v Bolton



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1. Whether negligence or strict liability should be applied to the case where a woman gets hitin the head and injured with cricket ball

2. Plaintiff not at faulta. Walking in front of house

3. Negligence v. SLa. If negligence, was the defendant negligent in construction of field, failure to take

precautions etc.4. Lower Judge, Jenkins

a. Talks about negligence, but seems to be closer to SL b. Was it reasonably foreseeable risk?a. he says it was and then applies liability (strict liability).

b. later we will ask whether there is reasonably foreseeable risk, but that onlycreates a duty

i. once there is a duty, then we determine liability standard1. negligence or SL?

c. He is adopting SL, why?a. by our theory, net negative externalities to game of cricket.

5. Appeal to House of Lordsa. Reid

a. rejects foreseeability as liability trigger b. adopts reasonableness test

i. risk of harm and the magnitude of such harmii. must not create a risk which is substantial

iii. implicit statement of Learned Hands B


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a. United States v Carroll Towing Co . (pg 158)1. during WWII in NY harbor, the barge breaks loose from the tug when bargee was not on

board2. was it contributorily negligent for the bargee not to be on board the barge the bargee was

on shore for 21 hours?3. Judge Learned Hands Holding:

a. no specific rule to apply to bargees absence which will determine contributorynegligence

a. not a case where we can find per se negligence like drunk driving, etc. b. if we imposed strict liability on the bargee then he would always be required to be on the bargea. instead were going to need some negligence standard.

b. Hand commits liability fallacyi. could still leave the barge under SL but would have to balance heavier

liability rulec. need to balance B against PL this is where we get the B < PL

a. B burden on D of preventing the harmi. burden of being on board

ii. not that substantial here b. P probability that the harm will occur

i. Hard to know hereii. Hindsight fallacy: Mere fact that it happened causes us to increase

probabilityc. L cost of the loss that will result

i. the cost of the barge sinkingd. Hand estimates and concludes that B < PL

a. Therefore, there is negligence4. Difficulties of B < PL calculations

a. Incommensurable itemsa. Some things cant be measured

b. Or might be measurable on own terms, but hard to compare to other categories

b. Restatements1. Unreasonableness

a. Section 291a. Unreasonable if risk is of such magnitude as to outweigh what the law

regards as the utility of the act b. Section 292

a. Factors in determining utilityi. Social value of interest

ii. Chance this interest will be advancediii. Extent of chance that interest can be advanced less dangerously

c. Section 293a. Factors in determining magnitude of risk

i. Social value of interests imperiledii. Extent of chance invasion of interest will occur

iii. Extent of harm likely to be caused to interestsiv. Number of persons whose interests likely to be invaded

2. Dutya. Section 6

a. an actor ordinarily has a duty to exercise reasonable care when the actorsconduct poses a risk of physical harm



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b. unless duty inapplicable under section 7, an actor whose failure to exercisereasonable care leads to physical harm is liable for any such harm withinliability scope

b. Section 7a. Court may determine no duty or duty other than reasonable care

b. Based on special problems or principles of policyc. Not liable if there is no dutyd. Liable only for modified duty if a defendant is subject to such modified duty

c. Posner (1987)1. conceptual as well as practical difficulties in monetizing injuries2. left to juries to intuit rather than measure the variables in the Hand formula.3. but predicts that we will eventually be able to give the B, P, and L to actuaries at some

point where they will be able to calculate the monetary value of these variables.d. Now see The Economics of Barges and Bargees handout

1. takes into account the bilateral accident context and that there is more than just one partyscare involved

2. Kysar asserts that Learned Hand was wrong to assert negligence with CN if tug owner acted second

a. Where one party has complete and perfect information, it is probably moreefficient to apply one standard over another

b. It is probably true that defendant tug owner knows when plaintiff bargee is not inship when he decides what speed to go

c. Want him to take care, so really we want defendant to be in the no-no box, not plaintiff a. Negligence rule

4. Special Rules Governing Proof of Negligencea. Violation of Criminal Statutes

1. Martin v. Herzog a. Defendant car driving around a bend on the wrong side hits plaintiff buggy

without lights on b. Car was negligent by driving on the wrong side of the roadc. Legal question

a. Was the absence of lights in violation of legislative announcementcontributory negligence?

d. Holdinga. Violation of legislative announcement is negligence per se.

e. Jurors should not be able to get rid of this statutea. if it wasnt relevant or if it was only evidence of negligence, then they

would have dispensing power.f. Is this no liability fallacy?

a. assumption that failure to back up criminal law with civil law willweaken statutes effect

g. Cardozo explains that law is not an option to conforma. strong view about moral weight of the law

2. Tedla v. Ellmana. Plaintiffs struck by negligent defendant driver while walking on the side of

the road b. Statute told them to walk facing traffic and they were on the other side of the

roadc. Holding

a. Look to intentions of legislature b. It is a rule of conduct and safety



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i. But subject to common law, traditional, and customary exceptionsii. Custom to walk on side with less traffic for safety reasons

c. Based on the exceptions and good reason for being on that side of theroad, violation of the law is not evidence of negligence

d. Rulea. Back to Cardozo

b. Violation of safety statute is negligence per se with an exception for goodreason safety considerations

3. Brown v. Shynea. Defendant offered chiropractic treatment to plaintiff without a license so plaintiff sues in negligence for harm of paralysis that resulted

b. court says that violation of statute didnt cause harm itself so there shouldnt be per se negligencea. Instead ask whether there would be negligence if a licensed person had

committed same act? b. Court says that failing to get a license is not necessarily highly correlated

to negligencec. Need to ask question about why someone doesnt have the license

4. Bayne v. Todd Shipyardsa. courts engaged in a similar calculus when evaluating whether an

administrative regulation indicated negligence b. more hesitant to apply Cardozos per se negligence rulec. courts are split on whether it is evidence where there is a majority with

statutory violation5. How should we look at evidence of violation of a safety statute?

a. Most jurisdictions look at it as some evidence of negligence b. A few look at it as per se negligence (cardozo)c. Could also look at it as no evidence of negligence.

a. Not being licensed was not found to be evidence of negligence b. Others suggest that not being licensed should be evidence of negligence if

reason is a failure to pass licensing, but not if you failed to renew.d. causation

a. But for causation? b. General v. specific violation

i. although generally negligent, may not have been negligent in thisspecific context (such as in Tedla)

e. Slippery slopea. What about speeding?

i. look to risk to safety.ii. custom can totally change laws

1. maybe this is reason that Cardozo is right and we shouldhave per se negligence.

2. on the other hand, one could argue that there is soft law5. Custom

a. another way to determine measure of negligence1. based on the market

b. arose from problems with B < PL which requires so much informationc. saw also that they may look to legislature and agencies for negligenced. We get a couple of different approaches about how to apply custom

1. Posner and Landisa. Positivistic project

b. low contracting costs, they should defer to customlegalforms.ilrg.com Page 28 of 66


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c. high contracting costs, they should not2. Epstein

a. Torts should either apply strict liability, or apply custom, but not this hybrid b


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v. led to populist manifesto giving rise to products liability b. Customs were misstated

vi. If they were understood, he would have held the same way based oncustom

vii. He thinks custom would have required owner to have radio on tugc. Very concerned about dictad. Should trust custom more than B < PL

8. Landus and Posner

a. Hand had custom wrongviii. 90% of ships had radios b. on their theory Learned Hand should have deferred to custom due to low

transaction costsix. would have found negligence from custom

c. Say that Hooper has only been imposed in high transaction scenarios and sothey arent too worried about dicta

3. Did Hand really get the custom wrong?a. If his custom did apply strictly, then the defendant shouldnt be negligent

i. But Epstein says this would have been a bad result and that customshould be applied, but that Hand was wrong on the nature of thecustom

b. Kysar thinks Hand was right about the customi. Custom of tug owners not providing radios should exonerate our

defendant by strict customii. But we can test whether or not this outcome would be efficient by B

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