Torts 1
Battery
• Intentional
o Acting with purpose to produce
consequence, or acting in a way that
the reasonable man would know
consequence is substantially certain to
occur. (Hidden intent is irrelevant)
[VanCamp v. McFoos] [Garret v.
Dailey]
• Unconsented to
o [Cohen v. Smith] Consent may be
actual (expressed) or implied (a
manifestation on which a reasonable
person could rely)
• Harmful/Offensive
o To a reasonable sense of personal
dignity (obj. standard) [Snyder v.
Turk]
• Contact
o Touching (can have extension of self
and Π, and it need not be immediate
(poison or smoke) [Leichtman v.
WLW]~light, sound
{also analyze difference between dual intent
and single intent}[White v. Muniz] [Garret v. Dailey]
{also the concept of transferred intent, either
the tort, the Π, or both} [Hall v. McBryde]
{also, legal insanity is not a defense) [Polamiter v.
Russ]
{Also note Law of Sevens} [VanCamp v. McFoos]
Assault
• π is placed in apprehension
o 1) acting intending to commit battery
2)acting intending to put someone in
imminent apprehension of battery
[Cullison v. Medley] [Kaufmann v.
Garnett---No apprehension]
o do not need fear, but MIND MUST BE
TOUCHED
• Apprehension is of an immediate battery
o *words alone lack immediacy, have to
be in conjunction with something else
[Cullison v. Medley]
o You need actual conduct of a
threatening kind
o With conditional words “If you were
not my mother, I would….” Not
usually enough. UNLESS they are
forcing the party to choose between
two tortuous alternatives “I will hit
you or take you purse” Exception:
When there is legal right, i.e. stolen
property
False Imprisonment [McCann v. Walmart]
• Act of Restraint ***look at notes
o π must know of confinement OR be
harmed by it. (Harm can be physical or
economical)
o It has to be intentional (motive is not a
consideration)
o Unconsented to (exclusion does not count)
o Bounded area= no reasonable means of
escape.
o Confinement need not be physical; can be
accomplished by implicit or explicit
threats. (and any amount of time)
o Within limited area (not Taiwan)
o Does not have lawful authority or restrains
with illusion to lawful authority [McCann
v. Walmart]
Trespass to Land
• Physical Invasion
o 2 ways: (1) enter property; (2) extension of
self
o Non-physical invasion ≠ trespass to land
(ex. Light)
• Of Land
o Includes air above & soil below, to heavens
o Never has to actually touch the ground
o Is not a matter of ownership (a renter can
sue for trespass)
• Intent
o Only intent required is that ∆ get to the
challenged location on purpose
o ∆ need not be aware that he is violating
property rights.
o Sleepwalking ≠ intent ≠ trespass to land
o Unintentional entry or invited entry is not
enough, but if there is a refusal to leave
becomes trespass
Trespass to Chattels
• Interferes with π’s right of personal property
o Personal property= everything you own
except real property
o (1) damaging or (2) stealing/taking-
dispossession or lost use
o Remedy= $ for loss of use or cost of repair,
based on actual damage, not market value
Conversion
• Interferes with π’s right of personal property, to
exercise SUBSTANTIAL DOMAIN
o Personal property= everything you own
except real property
o Interferes = substantial damage or loss.
• Remedy= get real market value of item
• Mistaken belief that you own the chattel is not a
defense. 3rd person can be liable
• Is a matter of degree between trespass and
conversion, these factors determine: 1. Extent,
duration of control 2. Δ intent to assert a right to the

property 3. Δ’s good faith 4. Harm done 5.
Expense or inconvenience caused
Civil Rights Torts
• Under color of law
o A person with state or federal
authority, or appearance of authority
(gov’t must make them have that
appearance) [Brown v. Muhlenburg]
o Can be brought under Fed.
Constitution or Fed. Statute violations.
• Third Party Rule
o Can be private citizen conspiring with
state authority
o Can be an officer who fails to protect
citizen Rule, must have passed ‘test’
and must have had realistic
opportunity to intervene
1) excessive force was being
used 2) that a citizen had been
unjustifiably arrested, or 3)
that any constitutional
violation had been committed
[Yang v. Hardin]
(Note: 3 can be satisfied by 14th
due process clause, 4ths
unreasonable search/seizure
[Brown v. Muhlenburg] 8th cruel
and unusual punishment, and 1983
statute [Alexander v. DeAngelo]
• Government Immunity
o Shocks the conscious [Sacramento v.
Lewis]
You can only sue the government
if they allow you to [Alexander v.
DeAngelo]
o Note on damages: Get attorneys fees if
you win
Torts 2
Torts of Outrage
• Restatement elements IIED:
a. Conduct of the defendant was
extreme and outrageous
b. Intended to cause severe
distress or was reckless in risking
severe distress
c. Actually caused severe distress
[Nickerson v. Hodges] (gold diggers burry a
fake pot of gold):One of the first cases to
cite an IIED, but claimed malicious
deception and conspiracy. Example of
extreme conduct: Taylor v. Metzger
(African-Am. Woman sheriff, called ‘jungle
bunny’ was held to be beyond bounds of
decency)
Further in Nickerson the award was reduced
because Π died (this would not happen in
modern times)
Intentional Infliction of Emotional Distress
• Outrageous Conduct
o Outrageous= Exceeds all bounds of
decency tolerated in a civilized society
o Mere insults ≠ not outrageous
o Plus Factors: Hallmarks of
Outrageousness- (1) Continuous or
Repetitive Conduct; (2) ∆ is a common
carrier or Innkeeper; (3) π is a member of
a fragile class of persons (i.e. children,
elderly, pregnant woman.)
o It is outrageous if you exploit
• Severe Emotional Distress
o Severe= interferes with daily activities of
life.
o Must be severe
• Intent
o Recklessness (in addition: purpose, desire,
knowledge)
 Torts 3
o Parent/teacher may use reasonable force to
discipline child
• Privilege of Arrest (Also see above to defense of
Defenses to Intentional Torts property)
• Self-Defense o Mistake of Felony committed- only police
1) Reasonable force to defend against tort 2)Reasonable can make mistake. If private citizen makes
deadly force only when the threat is at same extreme 3) mistake, can’t claim privilege.
No requirement to retreat 4) Any excessive force is o Mistake of Person committing felony-
unprivileged 5) That one was provoked is not enough to reasonable mistake allowed
claim self defense 6) There is a right to resist unlawful o Misdemeanors- must be committed in
arrest 7) One can use assault to forestall a crime, even
one’s presence.
when the battery it puts the other party in fear of would
• Necessity
not be privileged
• Defense of Others/Property Public Nec. Public Nec Private
o Timing: must be imminent or in (Common (Governed by Necessity
progress. (No revenge, if threat is Law) Statute or
over and done, timing is no good) Const.)
o Defense as 3rd person must be no more
than if you were the person being
attacked could use If destroying These usually One can trespass
o Reasonable belief that threat is genuine someone’s allow for or destroy
o *Deadly force only in life threatening private property destruction of the another’s
situation. For property, never can use to save public property to save property to save
deadly force. (Kato v. Briney shotgun there is no public, but their own
trap) (Brown v. Martinez Boy shot for liability impose a liability property or life,
trespassing on watermelon field) (Surroco v. to pay on the but they are
o One can use false imprisonment to Geary, government liable for
defend property, put if person detained Destroyed (Wegner v. damages.
is not guilty then the detainer is liable house to save Milwaukee (Ship/Dock
(Great Atlantic v. Paul)And person town from fire) Insurance, law in Cases, Vincent
must be held only as long as necessary MN Constitution) v. Lake Erie)
• Consent Note: If the
o Express- words permitting ∆ to person you are
commit, but person must have moored to unties
capacity to give consent (Reavis v. you and you or
Slominski a)incapacity has to be your property
substantial and impair ability to weigh are damaged
harms and benefits b)Δ must have then they
knowledge of incapacity) become liable
EXCEPTION Cannot consent to crime Ploof v. Putnam
o Implied- (1) custom, usage (sports); (2)
reasonable interpretation (first date Policy Considerations:
kiss) EXCEPTION Cannot consent to When there is not a clear outcome you can use these
crime to arg. For what you think result should be
o Cannot exceed scope of consent • Utilitarianism
(Ashcroft v. King Consented to familial • Social Justice
blood transfusion, was given other • Natural Law
AIDS infected blood) Exception: • Efficiency
Medical professionals may exceed • Cost/Benefit
Kennedy v. Parrot removing appendix,
also operated on cyst
• Discipline
 Torts 4
a. Whether the statute is the sole source of the
defendant’s duty to the plaintiff
b. Whether the statute clearly defines the
prohibited or required conduct
Negligence: c. Whether the statute would impose liability
without fault
Negligence may be any conduct that creates an d. Whether invoking the negligence per se
unreasonable risk of harm to others—it is doctrine would result in damage awards
actionable as a tort when that risk comes to disproportionate to the statutory violation,
and
fruition in actual harm e. Whether the plaintiff’s injury is a direct or
Rule: a) Defendant owed plaintiff a legal duty, indirect result of the violation of the statute
b) defendant by behaving negligently, breached that duty,
c)plaintiff suffered actual injury
d) defendant’s negligence was an actual cause of the
Defenses to Neg. Per Se
injury; and
e) defendant’s negligence was a proximate cause of the
Rule: Unless legitimate excuse for violation of the
injury statute is offered then is Neg. Per Se (Impson v. Structural
Metals)
Duty: 1. violation was reasonable because actors incapacity
Rule: You have a legal duty not to increase the (ex. Child or med. Emergency)
2. Neither knows nor SHOULD know occasion for
risk to other people. In general duty is that
compliance
people have to act as a reasonably prudent 3. Unable to comply, even after reasonable diligence
person would in the same or similar or care (Impossibility)
circumstances. The degree of care varies with 4. Emergency Doctrine, not due to own conduct (ex.
the situation, the standard of care is always Storm or tire blew out)
reasonable care FORSEEABILITY=RPP 5. Compliance would have resulted in greater risk of
SOC, Factors considered when analyzing what duty is: harm to actor or another. (Nurse case)
- Heightened Knowledge or special training,
dangerous instrumentalities same SOC-
different circumstances (Hills v. Sparks, Neg. as a Matter of Law: Rule: No reasonable jury could
Stewart v. Motts) conclude that this is anything but negligence. Judge
Children have childs SOC, except when they are operating determined. (Marshall v Southern Railway, Chaffin v Brame)
a dangerous instrumentality (Robinson v. Lindsay) General
Rule for Children: Duty of children is in exercising the
same care that a reasonably careful child of the same age,
intelligence, maturity, training and experience would
exercise in the same or similar circumstances Hudson v.
Putney
-
- Physical Disabilities, then ‘in same or
similar’ (Shepard v. Gardner)
* Sudden Unforseeable Medical Emergency,
SOC doesn’t change if Med emergency was
foreseeable –epilectic-(Roman v. Estate of
Gabbo)
*Mental disability does not change SOC
(Stewart v. Motts)

2. Neg. Per Se- is a violation of statutorily created rule or

duty: Two part test to see whether violation of statute
negligence per se (Martin v. Hertzong) **Talk
about broad or narrow
1. Π is a member of the class of persons that the statute
seeks to protect. (Rains v. Bend, Wright v. Brown, Haver
v. Hinson)
2. Accident is within the class of injury that the statute
seeks to prevent (If yes to test * analyze 5 factors from
Rains) (narrow injury supported by Wright and Haver)

Breach:
Rule: Where the actor has a choice of action he
should engage in the action that will:
1. Result in the least amount of harm; AND,
2. Reduce the probability that anything bad will
happen (must be foreseeable)
Rule: Preponderance of the evidence standard-Each
element of Negligence must be proved more likely than not
(roughly 51% standard)(US. V. Carrol Towing)
• LH Formula Apply B<PL analysis- burden of
preventing harm is less than the probability of injury
x seriousness of harm should the injury occur—if
B<PL then breach of duty; if B>PL no breach
(B=burden of precaution, P= probability of accident
L= magnitude of accident) US v. Carrol Towing)
-****Policy For: is flexible and can
change with the times; is better than any
other arbitrary standard
-*****Policy Against- hard to quantify
injuries/probability of injuries; everything
that we do carries some risk and any activity
has some benefit and any precaution some
costs
• Golden Rule Do unto others as would have done
unto you
• JURY: Intuitively, By Neg. Per Se,
Neg. as Matter of Law, by Custom (can
hold to higher standard then Statutes- can be
used as evidence)
• Background Rules (Court made, not
binding, rules of thumb)
1. Life above property (Bernier v.
Edison, Indiana Consol. Ins)
2. Person who has greater knowledge
(Sinnet)
3. Foreseeability is low when you are
depending upon an expert (Sinnet v.
Buchele)
4. If burden is high, and likelihood of injury
is low, then no breach (Lee v. GNLV Corp)
5. When one is confronted with 911 he may
act in his best judgment without being neg.
(Indiana Consolidated v. Matthew)
6. Degree of harm can be weighed
against right to protect ones property/
Torts 5
sterilize camp experince(Fintzi v. New
Jersey)
a)Joint and Several- Can enforce total against A, who
can then recoup from B. (Π friendly, meets goal of
compenation)
B)Comparative Fault- Each will pay their own % (not
Π friendly, allows poor to not be deterred, but saves from over
detterance on rich Δ)
Proving Conduct:
• Must meet by a preponderance of the evidence
(51%) (US V. Carrol)
• To prove cause you have to prove more likely
than not that Δ was negligent (Santiago v. First
Student)
• If there is a question of fact it should go to a jury
and be upheld (Santiago v. First Student)
(Upchurch)
• It is up to jury to determine witness credibility
(Upchurch)
• Can use neg. per se, but may just be evidence of
neg.
• Circumstantial evidence gives clues to weather
breech has occurred (allows you to make
inferences which can led to preponderance of
evidence being met) (Forsyth v. Joesph)
• Expert testimony is only needed when topic is
something a lay person would not be
knowledgeable about (Dist. Of Columbia v.
Shannon slide-thumb case)
• Non-expert witnesses can only testify as to facts,
not opinions or conclusory statements
Evaluating Conduct:
• Custom does not determine SOC (but could be
used as evidence) (TJ Hooper)
• Policy manuals do not determine SOC (evidence)
(Duncan, followed but wasn’t enough, WalMart,
didn’t follow but okay)
• plaintiff must show that the owner either created
a dangerous condition or had actual constructive
knowledge of a dangerous condition-can be
established by circumstantial evidence (Cracker
Barrel) [SLIP] Even if Δ did not cause the danger
he is liable if enough time passed

• Evidence that customary safety policy was
violated- goes to jury
• Mode or method of business operations make it
all to likely that a dangerous situation will
occur[SLIP]
AOR-
Use Soft Crews analysis
1. Did the plaintiff have knowledge of
the risk—objective test-Reasonable
person
2. Did the plaintiff appreciate the risk-
objective/fact specific test
3. Did the plaintiff voluntarily expose
himself/herself to that risk?
(Crews v. Hollenbach) Do this when
analyzing in breach or here (see page
12 for when to do what)
RES IPSA LOQUITER
RES IPSA LOQUITER
The Thing speaks for itself. It is a form of
circumstantial evidence, the rationale is that facts can
sometimes be inferred from other facts. Res Ipsa
allows the jury, based on evidence about the accident
itself, to infer that it must have resulted from some
negligent act of the defendant. To invoke res ipsa,
plaintiff must show that under the circumstances
negligence is more probable than not (Koch,
Cosgrove), and must show
OLD RULE1. The Instrumentality at issue is
within the defendant’s exclusive control (Is a
flexible term-Giles) (Cannot have more than one
Δ with the exception of Collins)
2. Accident is of the type that doesn’t
ordinarily happen without some negligence
3. Plaintiff and 3rd parties didn’t cause or
contribute (Is flexible too, can have contributory
neg., Giles)
(Valley and Eaton for all 3 rules)
Torts 6
* Crucial impact of res ipsa loquitur is that it allows
plaintiff’s case to go to the jury even though he has not
proved a specific act of negligence
* Majority: Res Ipsa creates an inference of
negligence that allows you to survive summary
judgment and go to the jury- then jury then
decides if it wants to accept or reject the
inference—plaintiff still has burden of proving
the rest of the elements- injury and causation
*Minority: Res Ipsa creates a rebuttable
presumption of negligence- the burden shifts to
the defendant to prove that he is not negligent—
it is presumed more likely than not that a duty
was breached—better for plaintiffs—if defendant
rebuts the burden gets shifted back to the Π, if
not Π wins.
NEW RULEModern Rule:
Either inference or rebuttable presumption when:
1. The accident is of the type that normally
does not happen without neg.
2. Δ was more likely than not neg.
*If 2 or more Δ then no RIL (Collins is
exception)
Notes:
a. RIL gives you breech and maybe
duty, still need to prove rest (with
maj. Rule)
b. If no RIL can just default to neg.
c. Π has to exclude other causes when
“it is easy to do so” (Warren)
d. If Π has superior K then less likely to
get RIL, if Δ has superior K than RIL
e. More likely to get res ipsa where
there is no reciprocal risk- because it
is an indicator that the defendant had
exclusive control of the
instrumentality (Wyndemere)
f. Π is not required to negate other
possible causes (Wyndemere)
 Torts 7

LOST CHANCE DOCTRINE IN ACTUAL

CAUSATION SECTION

INJURY:
Rule: Plaintiff must suffer a legally cognizable
harm Preston v Cestaro
4 things to be aware of:
1. injury must have resulted due to the
defendant’s breach of duty;
2. injury can be a loss of market value in many
instances;
3. at common law emotional distress alone are
not legally cognizable injuries; what the advent
of IIED and negligent injury of emotional
distress have helped to resolve this
4. At common law future risks created by
negligence generally don’t count as injuries—
this may have changed a bit with the lost chance
doctrine
* Also plaintiff cannot recover damages if there
was no injury suffered-because injury is an
element of the prima facie case

Note: causing inpermanent bodily change but no

pain = no injury – (orphan)

ACTUAL CAUSE:
3 ways to establish:
1. But for X (most common) (Salinetro v
Nystrom)
2. Substantial Factor Test (Anderson v.
Minneapolis, Dillon v. Twin) when two or more
causes concur to bring about an event, then
cause-in-fact is established by the substantial
factor test- was the actors action a substantial
factor in bring about the harm
3. Summers v. Tice rule: where there are
multiple defendants, but only one caused the
harm, they can both be held liable and it is up to
the defendants to apportion liability (only works
if Π can prove all Δ’s were negligent (Doe v.
Baxter))—do joint and several or comparative,
pg. 10)
LOST CHANCE:
d. Lost Chance—its own animal- could
talk about it under causation because of policy
Torts 8
considerations(But for works with 3. All work
with substantial factor test, none work with
Summers.)
If general do #3, and why others no. If asked to
apply lost oppt. Apply approach from Lord v.
Lovitt, also apply all 3 in essay-
1. Traditional- Plaintiff must prove that as a
result of the defendant’s negligence, the plaintiff was
deprived of at least 51% chance of a more favorable
outcome than they actually received. Once a plaintiff
meets this burden, they would recover damages for the
entire preexisting illness or condition.
2. Variation of Traditional- The causation
requirement is relaxed by allowing the plaintiff to submit
their cases to the jury upon demonstrating that a
defendant’s negligent more likely than not increased the
harm to the plaintiff or destroyed a substantial possibility
of achieving a more favorable outcome. If jury buys it- can
get 100% recovery.
3. Lost Opportunity—majority rule-
The lost opportunity for a better outcome is, itself, the
injury for which the negligently injured person may
recover. The plaintiff will prevail if they can show more
likely than not that defendant increased the risk of harm,
but damages are limited to the value of the lost
opportunity. Thus if defendant by their negligence
eliminated a plaintiffs 40% chance of survival, the plaintiff
would be able to recover 40% of damages.
* Lord v Lovett- p 225 plaintiff
broke her neck and doctors misdiagnosed her
injury causing her to lose the opportunity for a
better recovery. Court held that plaintiff may
recover for lost opportunity where defendant’s
alleged negligence
aggravates the plaintiffs injury and deprives
them of a better outcome.
* McDaniel v.Org- if Π would not have taken
advantage of lost opp. Then no damages, but this
should go to a jury (Jorgenson v. Vener)
* Alexander v Scheid- radiologist reported
density on lung and concluded the dr should
follow up, dr didn’t and mass grew and
metastasized. Can proceed because of lost
opportunity- here no problem with causation- so
suggests that lost chance can be a part of
causation or in changing the injury
* Verdicchio- Plaintiff couldn’t prove whether
cancer had metastasized at the time of
misdiagnosis. Court says irregardless, the chance
for better recovery was reduced and plaintiff
could recover. Had 85% of survival if cancer had
not metastasized at time of misdiagnosis and
30% chance of survival if it had.
55% x 5m = 2,750,000 = value of lost opp.

* If defendant’s negligence eliminates the
plaintiff’s chance of survival he could be held
liable for that percentage of chance—i.e. Lost
Opportunity
* Hypo: Assume that a woman is pregnant and that she is
bleeding from her rectum. She tells her OB this, but the OB says
that some bleeding is normal and the patient doesn’t worry about
the bleeding anymore. After she delivers, she is still bleeding and
sees her primary care doctor who has her screened for colon
cancer. It turns out that she has stage 3 colon cancer. The
doctor’s negligent act did not create the cancer, but let’s say that
if the cancer had been caught sooner there is a 49% chance it
would have been stage 2 cancer and not stage 3. Survival rates
from stage 2 cancer are substantially higher (80%) than survival
rates from stage 3 cancer (40%).
* Traditional Approach: No one knows whether cancer was at
stage 2 or 3 when the woman first complained. If it was at stage 3
(here, there is a 51% chance of this), then the woman’s damages
would be $0 because there was not greater than 51% chance of
survival- only 51%.
* Modified Traditional Approach- if 40% is more likely than not,
based on the evidence- then full recovery
* Lost Opportunity- Majority Rule- the chance of survival was
reduced by 40%- difference between stage 2 and stage 3.
(Multiply value of life x lost % chance)= value of lost
opportunity. (5 million x 40%) = 2 million. There is a 49%
chance she will suffer $2M in damages (lost chance) and a 51%
chance that catching cancer sooner would have made a difference
($0 in damages) –so 49% x 2M + 51% x 0 = 980,000 ( % chance
it would have been stage 2 x value of lost opportunity) + (% it
would already be at stage 3 x damages allowed) = damages
awarded if cancer was at stage 2 when misdiagnosis occurred
PROXIMATE CAUSE
-Is the harm of the same general nature that was
created by the Δ’s negligence [WHEN DOING
ANALYSIS DO IN TERMS OF NARROW V.
BROAD CONSTRUAL, use policy and
particular facts applied to rules]
Ways to think of:
1. (One to focus on) Scope of
risk/forseeability (: type of harm; class
of person; manner of occurrence/extent
of harm)
2. Intervening Tortfeasor
3. Policy Considerations, we have to draw a
line in causal continuum somewhere
4. Duty, what would a RPP do? Apply
Learned Hand formula.
SCOPE OF RISK (also look at manner/extent;
cut off liability, acts of god):
a. Type of Harm- compare what is
foreseeable with what actually happened-
defendant is only liable for types of
injuries risked by his negligence- - if a
reasonable person would foresee no harm
Torts 9
to anyone as a result of his actions- do not
reach issue of proximate cause (Medcalf
v. Washington, Abrahms v. City of
Chicago both not within scope)
b. Class of Persons: is the person affected
by the act, the class of person foreseen-
only liable to the classes of persons risked
by negligence- defendant’s conduct is not
a proximate cause when the defendant
could not foresee harm to persons
situated as the plaintiff is (Palsgraf v.
Long Island Railroad (not in class),
Mellon v. Holder (not in class and not
forseeable)
EXCEPTION TOFORSEEABILITY: if you put
someone at a risk of harm and it is foreseeable that they
would need rescue, the scope of risk then expands to
include the rescuer in the class of persons that are
foreseeable
- Rescuer can recover from the defendant whose
negligence prompts the rescue—this includes cases where
the defendant negligently injures or endangers himself
and the plaintiff is injured in attempting a rescue-
only those who are in close proximity in time and distance
to the party requiring assistance are within the class of
potential rescuers and a rescuer must in fact attempt to
rescue someone (Wagner v International RR)
Other considerations (Notes)
1. Manner of Occurrence- Manner of
occurrence doesn’t really matter
unless it is completely unique and
therefore unforeseeable (Hughs v.
Lord Advocate, Doughty v. Turner)
2. Extent of Harm- if you harm the
plaintiff then you are responsible for
everything that happens to them
Thin Skull Rule: Restatement 435(1)Rule: When defendant’s
conduct otherwise qualifies as a proximate or legal cause of the
plaintiff’s harm, the defendant does not escape liability merely
because the harm was more extensive than anyone foresaw or
could have foreseen
Fire Cases- extension of thin skull- when a person’s negligence
starts the fire, they are equally liable for the consequences
whether they foresaw them or not
2. Intervening Tortfeasor- - When
tortfeasors act in sequence, the first tortfeasor
will often argue that the second is an intervening
cause that supersedes him and cuts off liability—
an intervening cause that lies within the scope of
the foreseeable risk, or has a reasonable
connection to it, is not a superseding cause
 Torts 10
(Austenmiller v. Dostek, Deridian v. Felix) (Not
forseeable: Sheehan v. City of New York,
Ventricelli v. Kinny)
- any unfolding events caused by ∆’s negligent
act and π’s injury even though bizarre could be
foreseeable and proximate—up to the jury to
decide (Marshal v. Nugent)
-If you are neg. then injuries that happen after
you are held liable for as well (Anaya)
- If it is foreseeable that negligent action will
cause intervening tortfeasors to come forward,
then that brings more people within the class of
persons in the scope of risk
- If the intervening tortfeasor was intentional
then likely to cut off liability (Watson v.
Kentucky and Indiana Bridge and RR)
(Policy: New with intentional tortfeasors:
compensation, you as a business have a duty (to
x, install y) because of your financial gain)

SOR: TERMINATION OF RISK: shifting

responsibility- when an intervening tortfeasor
steps in, original tortfeasor’s liability gets cut off
and all responsibility gets shifted to intervening
--tortfeasor (Pittsburg v. Horton, Kent v.
Commonwealth)

SOR:INTERVENING FORCES OF NATURE:

intervening ‘acts of god’ can cut off liability
unless they are foreseeable—i.e. if you build in
San Francisco and don’t take earthquakes into
consideration when you construct—you are
liable because it is foreseeable there could be an
earthquake

Calm Waters analogy: cuts off liability

 Torts 11

ASSESSING DAMAGES
- Joint and Several Liability- you can enforce
the claim against any tortfeasor,
and if one tortfeasor pays the entire
amount they can get ‘contribution’ from the
other tortfeasor for their
proportional amount; better for plaintiff- more
likely to be compensation—
not really applicable in comparative fault
jurisdictions any more
- Comparative Fault/Several
Liability- Plaintiff’s recovery is generally
reduced by their negligence
to reflect their fault; and each faulty party must
bear their share of losses.
Here, the tortfeasor is only responsible for their
portion of the claim—pro-
defendant rule in that they only have to pay there
share—plaintiff can’t get all
of their money from one party and then expect
them to get
contribution elsewhere-plaintiff bears risk
of this if defendant is judgment proof.

DEFENSES TO NEGLIGENCE
1. Trad/Common Law Contributory
Negligence:
Rule: no matter how small plaintiff’s
liability is, there is no recovery (Butterfeild v.
Forrestor) (very few states use)
2. Pure Comparative Fault- look at plaintiff’s
% of fault and that reduces the verdict
3 Modified Comparative Fault:
A. Sollin: plaintiff gets recovery only if their
fault is less than all other defendants-
49% or less. (Sollin v. Wangler)
B. Wisconsin- plaintiff only recovers if their
fault is equal to or less than others so
50% or less (Wassel v. Adams)
c. Maine Rule: requires the jury to make a
reduction of damages based on what it
considers to be equitable and just. –policy
reason- gives flexibility to jurors;
negatives- allows for prejudice without
justification
Restatement 3rd of Torts §8 Factors for assigning
shares of responsibility include:
a. nature of the person’s risk-
creating conduct, including
awareness or indifference with
respect to the risks created by the
Torts 12
conduct and any intent with
respect to harm created; and
b. Strength of the causal connection
between the person’s risk-creating
conduct and the harm
Rescue Doctrine and Comp. Fault:
-there is no comparative fault on the part of the
rescuer unless the rescuer acts recklessly
—encourages policy of protecting and
encouraging rescuer (Ouelette v. Carde)
- rescue doctrine applies even when a 2nd rescuer
is rescuing the rescuer—this applies as long as it
is foreseeable that someone might have to save
the rescuer (Govich v. North American System)
EXCEPTIONS WHEN YOU ARE DEALING
WITH TRAD/COMMON LAW
CONTRIBUTORY NEG.
a. Last Clear Chance Doctrine- Under
traditional contributory negligence, if the
defendant could/should have discovered
plaintiffs peril, then the defendant must bear
100% of the responsibility—cuts off all liability
of the negligent plaintiff
• Under Comparative fault this is no
defense- Courts will just assign % of fault
to π and ∆
b. Plaintiff’s Illegal Activity- Generally, if
plaintiff was harmed negligently while engaging
in illegal activity they wouldn’t recover. (Baker
v. Kallas, Alami v. Volkswagon, Zysk v. Zysk)
• Some jurisdictions have relaxed this,
particularly comparative fault—where
they just assign percentages
c. Intentional/Reckless Conduct- A plaintiff
charged with contributory negligence was traditionally
allowed a full recovery against a reckless or wanton
defendant.
• * In comparative fault jurisdictions- reckless
actions % of fault are assigned; in the case of

intentional actions- plaintiff’s liability is still cut
off
d. Mitigation- Traditional rule: If you fail to
mitigate/minimize damages then you lose out on
the entire damages because you are seen as an
intervening tortfeasors; under comparative fault-
just apportion fault
Instances where Comparative Fault Won’t
Apportion Liability/Contributory Negligence
Not Available
Intentional/Intervening Tortfeasors, and Other
Public Policy Reasons
-Hold Dr.s accountable, even when Π is at fault
for original injury (Mercer v. Vanderbilt
University)
-Special rules for manufacturers need to have
safety precautions (Bexiga v. Havir)
-Self abuse or destructive acts cut off neg. (ex.
Suicide, McNamara v. Honeyman)
-You are allowed to take risks to own property
(Leroy Fibre v. Chicago M and St.P)
**only applies to non-
strangers/ASSUMPTION OF RISK
(DEFENSE)
1. Contractual Assumed Risk: Restatement
Rule- Parties should be able to contract with
each other and this should be binding—so
whenever there is a valid contract, it should bar
all of plaintiffs claims
-Things to Consider when trying to figure out
whether the release should be valid and binding:
1. Did the plaintiff have bargaining
power? (If 2 are sophisticated then
less valid)
2. Is the service provided essential or
was it a choice? If it is essential
then the release is probably
invalid (Tunkl v. Regents of
University of CA)
3. What is the scope of the
agreement? Does the scope of the
agreement include the particular
injury—in torts the scope
generally only includes the type of
negligence that is inherent in the
type of activity itself (Moore v.
Hartley Motors)
Torts 13
4. All other general contracting
procedures (Lack of capacity,
coercion, consideration)
5. Was it a K of adhesion (generally
not okay because of policy
reasons)
2.Implied assumption of risk-in comparative
fault- this is not a defense, goes under breach
analysis- for exams do analysis under both—
Use Crews analysis
1Did the plaintiff have knowledge of the
risk—objective test-Reasonable person
2Did the plaintiff appreciate the risk-
objective/fact specific test
3Did the plaintiff voluntarily expose
himself/herself to that risk?
(Crews v. Hollenbach) Do this when
analyzing in breach or here
Dobbs Law of Torts- Traditional assumed risk rules
find tacit consent when the plaintiff, knowing of the risk
and appreciating its quality, voluntarily chose to confront
it. Dobbs argues that you don’t really need assumption of
risk as a bar in a comparative fault system. Because the
consent really goes to effect the duty of the defendant—if
the plaintiff consents to a type of risk, this changes the duty
owed.
Prevailing Rule for Implied AOR
-If a plaintiff is reasonable in facing a
risk, she is not negligent except when she
unreasonably confronts a known risk then
her negligence in doing so reduces
recovery of damages (Betts v. Crawford)
Restatement: if you have a contractual
assumption of risk, then defendant is relieved of
all liability; but if there is an implied assumption
of risk- then defendant’s liability maybe reduced
by comparative fault percentages
3. Assumed Risk as a Limited Duty/No
Negligence on part of Defendant
The plaintiff only assumes the risk that are
inherent in the activity in which they are
engaging, they don’t assume the additional risk
created by the defendants negligence (Siragusa v
Swedish Hospital, Sunday v Stratton Corp.)
• Assumption of risk in comparative fault
jurisdiction is no real defense; you just
go up to the analysis of breach in that
the consent/assumption of risk given is a
factor in the consideration of the
circumstances. In other words, when you

assume the risk inherent in the activity
then you relieve the duty of the defendant
in this regard. (Turcotte v. Fell)
• In sports cases analyze under what Δ’s
duty under the circumstance were
(Gauvin v. Clark- MA)
In Trad. Comparative Fault: Δ
MA: Duty
Turcotte/NY: Duty, Δ
If no jurisdiction: Breach, Δ
STATUTE OF LIMITATIONS
Statute of Limitations- Under state law, you have
a certain amount of time to bring your claim and
if you don’t bring your claim during that period
of time you are out of luck.
Approaches to when the Statute of
Limitations will begin:
1. Accrual Rule: At the time of the
first exposure to the tort, even
though the individual may not
know of it- rule from Crumpton
and Shearin (least Π friendly)
2. Whenever the last exposure to the
treatment or when employment
was terminated
3. Discovery Rule-Majority Rule-
the statute begins to run when the
plaintiff discovered or should
reasonably have discovered the
injury; when you find perm.
Injury and know Δ role. just
because you suspect a danger it
doesn’t necessarily count as
discovery; but if everyone knows
of a particular danger then the
Torts 14
statute of limitations begins-
Sciele
4. Extended discovered, permenant
damage and role.
5. Actionable Injury Rule- minority
rule- the statute doesn’t start
running until plaintiff discovered
or should have discovered both
negligence and causation
(if doc tells you SOL runs, if is common K then
SOL runs)
ANALYZE ALL APPLICABLE
Things that will Toll the Statute of
Limitations:
1. If someone purposefully conceals
information from the plaintiff to
prevent a law suit- acting
fraudulently will toll the statute—
but, wearing a mask to conceal
your identity during the tort will
not toll it because it is not
purposeful concealment to
bringing the suit
2. Tolling for disabilities- generally
the statute will be tolled for
minors or mental incompetence
3. AZ tolling statute- incarcerated
persons when disc/ release from
prison, whichever 1st
4. Equitable Estoppel- if there is an
affirmative misrepresentation, and
the plaintiff relies on this to their
detriment-this will toll the statute
—i.e. doctor says he works for a
private practice, but turns out he is
state employee
Note: Notice Bar- some states will require the
plaintiff to give notice before filing-this will in
essence shorten the statute of limitation
ADDT DEFENSES
1)Compliance with Statute
Miller v Warren- hotel didn’t have smoke
detectors and customers got injured during fire.
 Torts 15
But the building code did not require smoke
detectors.
Holding: Complying with a regulation is
competent evidence of due care, but not
conclusive evidence of due care
• Compliance with a statute or regulation is
not a defense. Statutory requirements
usually reflect the minimum standard of
care. Compliance with the statute is some
evidence of due care

2)Preemption
Preemption- generally if there is a conflict
between fed and state law, or there is an area
where fed law occupies the field- the fed law
trumps state law
2 ways:
1. Case law- judges determine if fed trumps state
law; meaning if there is a state cause of action is
preempted by federal law means that you don’t
have a state claim- but you can still bring federal
claim
2. Federal statute or law specifically says that
federal law trumps state law (FDA does not bar)