Development of Liability

Liability in Torts has changed a lot over time. The following cases outline how that liability has changed. Before getting into those cases however, lets look at the purpose of litigating torts:

  1. Find a peaceful way of adjusting the wrongs to injured parties
  2. Deter wrongful conduct
  3. Encourage responsible behavior
  4. Restore parties to their original condition (as far as possible and the law provides)
  5. “vindicate individual rights of redress”

Hulle v. Orynge

If you accidentally hurt someone else, you are liable for the harm (regardless of intent).

Weaver v. Ward – Military in England

If you accidentally hurt someone else, you can be found liable, depending on the intent. But the defendant needs to prove that they were not at fault.

Brown v. Kendall – Dog’s fighting

If you accidentally hurt someone else, you can be found liable, depending on the intent. However, the plaintiff needs to prove that the defendant met the burden of care.

Cohen v. Petty – Car Accident

If you accidentally hurt someone else, you are not liable for negligence if the incident is unexpected. No reasonable jury would find negligence because of the lack of history and evidence.

Spano v. Perini – Blasting

If you accidentally hurt someone else, you are liable for damages if you are engaging in an “abnormally dangerous activity.

Intentional Interference with Personal Property

Intentional Torts

Why do we start out with intentional torts? It sets outer limits of what civil justice system sanctions. We are also introduced to procedural issues.

How do we determine if there was intent? This is a complex idea with lots of examples. Hopefully outlining these cases will help to share how the rule developed.

Defendant has the purpose or objective of acting to invade rights of another (motive does not matter). It is also an intentional tort If there is a substantial certainty that result will follow.

Duel Intent: Is it enough that the defendant intends an act that has the result of invading the interests of another (reasonable)? Or must the defendant subjectively intend that the act be, in the case of battery, offensive or harmful (subjective)?

Garratt v. Dailey – Child with chair

You are guilty of an intentional tort if you know the effect your action will have on another and carry out with that action. (Substantial certainty)

Wagner v. State – K-Mart

A battery is 1. Intentional and deliberate and 2. the contact was harmful and offensive. A mentally disabled person has the ability to have intention.

Ranson v. Kitner – Shooting dog

Intention does not matter for a “mistake”. If you intend to hit something and mistakenly hit another thing, you are guilty of an intentional tort for the harm caused to the mistaken subject.

McGuire v. Almy – Insane person

An insane person can have intent if they carry out the intention to strike. Why do the courts still impose liability? To keep the supervisors more watchful.

Talmage v. Smith – Shed

This introduces the idea of transferable tort (transferred intent – person to person, tort to tort). Meaning, if an offender intends to strike one individual and accidentally harms another, the harmed individual has a case against the offender.

A intends tort against B and commits a tort against C.


The purpose of battery as a tort is to protect the bodily autonomy of potential victims.

Cole v. Turner – Establishing Battery

No facts were presented in this case but the rule of battery is outlined. Battery is:

  1. Touching another person in anger and
  2. Violence against another that causes harm.

However, this is a little outdated now, the most recent rules are outlined in the Restatement (Second) of Torts and in the cases below.

§13. Battery: Harmful Contact

Liable for battery if:

  1. Intend to cause a harmful or offensive contact, and
  2. harmful contact (direct or indirect) occurs
§18. Battery: Offensive Contact

Liable for battery if:

  1. Intends to cause a harmful or offensive contact,
  2. harmful contact (direct or indirect) occurs
    1. Not liable for battery if no intention to cause harm but offensive (not harmful) contact occurs.

Wallace v. Rosen – Teacher and Injured Parent

Wallace wanted the jury to interpret battery to include reckless touching. Court refused to do so. From this case we learn that battery is not reckless but requires the intent to harm. Thus, we incorporate duel intent.

Duel Intent is when you consider the interest of both parties. Torts are designed to protect the victims. However, we need also need to ensure that we protect the interest of a potential offender (they may have accidentally caused a harm but did not intend an injury). How do we protect both interests? By applying an objective standard and looking at how a reasonable person would examine a situation. In a crowded situation (as in this case), a reasonable person would see the touching as necessary.

Fisher v. Carrousel Motor Hotel, Inc. – Plate out of hands

A battery can extend to contact with objects “intimately connected to another“. Hitting a plate out of another’s hands, snatching a pocket scarf, hitting a hat off of a head, etc. can all constitute a battery. Again, because of duel intent, we would use a reasonable standard when determining how far one can go with this standard. The jury will determine what is reasonably connected.

There is no need to touch the person to establish battery.


Protecting the mental state of the victim. Freedom from the apprehension or awareness (objective standard). Defendant must be aware of assault.

I de S et ux. v. W de S – Great-grandparent of assault: Hatchet at store

This is the first case of an assault. An assault is when you attempt to cause a battery to another person but are unsuccessful.

Western Union Telegraph Co. v. Hill – Reaching over the counter

An assault requires the following:

  1. The unlawful intent to touch another
  2. Create in the mind of the victim fear of battery
  3. Battery would have been committed had the offenders opportunity been thwarted by some means.

We want to look at the opportunity the defendant had to commit a battery. In this case, the counter was too high and long for him to commit assault. However, if he went down the hall, opened the door, and removed the barrier between him and his victim, then he would have committed assault. Needs to be evaluated under a reasonable standard.

False Imprisonment

Protecting the mental state of the victim. Must also be aware.

Big Town Nursing Home, Inc. v. Newman – Elderly restraint

False imprisonment is:

  1. One person restraining the physical liberty of another
  2. Doing so without legal justification

The Nursing home in this case restrained Newman in Wing 3 without having the proper authority to do so.

Parvi v. City of Kingston – No memory of imprisonment

A person can still be falsely imprisoned, even if they have no memory of the incident. If there is enough evidence to prove that a person was detained against their will, and there was no legal authority, the individual was falsely imprisoned.

Here, a person was intoxicated, not arrested but dropped off in another location by police, wandered, and was hit by a car. He had no recollection of the events but later was told that he did not want to go.

Hardy v. LaBelle’s Distributing Co. – Accused of stealing a watch

There are a lot of gray lines when determining if someone was falsely imprisoned. As such, one or more of the following must be proven for a reasonable jury to find false imprisonment.

  • Force
  • Threat of force
  • Prevention of escape
  • Detainment

A person may feel uncomfortable but the objective standard must be followed. Otherwise, we are assuming that the person was in an uncomfortable situation, but do not know if they were actually imprisoned.

Here, the defendant felt uncomfortable at the accusation of theft and the closed room. However, she wanted to clear her name, did not ask to leave, and nobody said that they were making her stay (moral coercion is not sufficient). Therefore, she was not falsely imprisoned.

Enright v. Groves – Violation of city dog leash ordinance

For an imprisonment to be done with proper legal authority, the person must be detained for a violation of the law they were arrested for. Here, the person was detained because she would not produce a drivers license (no rules compelling her to do so). The individual was charged and convicted for violating the dog leash ordinance. However, because she was not arrested for violating the ordinance, instead was convicted for not bringing forward a drivers license, there was no proper claim for authority.

Whittaker v. Sandford – Restrained by sea

A person must be restrained within a certain area. Restraint can be as large as a state (but not as large as a country). Additionally, the sea may cause a barrier where one cannot escape. Therefore, being unwillingly detained by sea, without proper authority, is false imprisonment.

Intentional Infliction of Emotional Distress

All three of these cases are the first in the jurisdiction in which they were heard. Most of the time, intentional infliction of emotional distress appears to be a tort in which you can provide damages for offending another tort (such as assault). Here, however, the courts in these jurisdictions need to determine if intentional infliction of emotional distress can be considered a “stand alone tort“.

This tort is designed to protect the mental state of the plaintiff.

State Rubbish Collectors Ass’n v. Siliznoff – Forced to pay garbage collecting dues

The court here adopts this new tort. Here, the plaintiff didn’t sue for false imprisonment or assault because the defense could produce fairly strong arguments against it. Instead, they argue for a new tort.

The rule is outlined as follows

“One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.”

The bodily harm implement was interesting. Here, the plaintiff became ill because of the State Rubbish Collectors actions. Therefore, the court found that distress was here.

Slocum v. Food Fair Stores of Florida – Rude employee, heart attack

The court is asked to implement this “new tort.” The plaintiff says she had a heart attack from the words of the defendant. However, the court says that this tort should be used in only the most severe circumstances (to prevent dishonesty and keep the court’s workload manageable). So, the court needs to us an objective standard. The jury needs to find that the offensive conduct was “extreme or outrageous” and that the harm must be “severe”.

Harris v. Jones – Stutter

Here is the rule this court outlined:

There are 4 elements to impose liability for intentional infliction of emotional distress.

  1. The conduct must be intentional or reckless.
  2. The conduct must be extreme and outrageous.
  3. There must be a causal connection between the wrongful conduct an the emotional distress.
  4. The emotional distress must be severe.

Here, the actions of the defendant was reckless but the emotional distress wasn’t severe enough to meet the standard. Additionally, the worsening of the stutter could have been caused by other factors, not just the mocking of the defendant.

Other Notes

Important Takeaways from Harris:

  • Aggravating factors
    • Power difference between parties
    • Recklessness
    • Vulnerability (children, elderly, and pregnant women)(most likely to win cases)(also can include hypersensitive people. Those who are more hypersensitive are more likely to win).

Taylor v. Vallelunga – Daughter sues for damage from viewing father being beaten

Knowledge of causing injury to the plaintiff is necessary to find intentional infliction of emotional distress. In other words, intent matters, if there is no allegation of intent, there can be no liability.

However, one could argue recklessness as a substitute for intent (see state trooper case).

Trespass to Land

Dougherty v. Stepp – Claiming another’s land

Property owners have a right to their property but trespass requires intent (i.e. stumbling on the land does not constitute).

Herrin v. Sutherland – Hunting

Trespass extends to the depths of the earth and to the sky. However, with the development of mining claims and air travel this has become more restricted.

Rogers v. Board of Road Com’rs for Kent County – Mowing over fence

“Continuing the trespass”. Another way of saying, overstaying the welcome. Even if there was permission beforehand, once that permission expires and the person remains on the land, they have trespassed.

Trespass to Chattel

Glidden v. Szybiak – Dog

Dog owners are strictly liable unless they can prove trespass. Trespass to chattel requires:

  1. Impaired chattel
  2. Dispossession of chattel for considerable time
  3. Bodily harm to possessor or thing possessor has a legal interest in protecting.

CompuServe Inc. v. Cyber Promotions, Inc. – Spam emails

Trespass to chattel because it damaged property.

Trespass to chattel requires proof of damages, unlike land where trespass can occur with no damage.


Pearson v. Dodd – Senator documents

Restatement (Second of Torts)

“An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.”

How does one determine if the “seriousness” of the interference? Here are some of the factors the court considers:

  1. Extent and duration of actor’s dominion
  2. Actor’s intent to assert a right over the chattel
  3. The actor’s good faith
  4. Extent and duration of resulting interference
  5. Harm to chattel
  6. Inconvenience and expense to the other party



O’Brien v. Cunard S.S. Co. – Immigration Vaccination

We use an objective standard to see if a party provided consent to actions. Meaning, would the actions here be seen by a reasonable jury as consent.

Hackbart v. Cincinnati Bengals, Inc. – Football injury

Where do we draw the line between consent or not in dangerous activities? This depends on the customs of the activity and the witness testimony of those who participate in the activity.

Mohr v. Williams – Ear Doctor

Consent typically needs to be explicit. However, there are certain circumstances consent is implied.

  1. Patient is unable to give consent
  2. It would be life threatening if action is delayed
  3. A reasonable person would consent under the circumstances
  4. The physician has no reason to believe that consent would be refused.

If you exceed the scope of consent, that is battery.

De May v. Roberts – “Assistant” Doctor

Fraudulent consent is not consent. Consent can be obtained fraudulently if a patient is not well informed. However, it is the burden of the defendant to disclose that information.

However, fraudulent consent does not negate consent if it is about collateral circumstances instead of the essential character. So, if the consent is fraudulent about different things, consent does not matter (consent to be dunked for money to go to not agreed thing). However, if the fraud is about the same matter, consent does matter (consent to be dunked in water and instead being dunked in snakes).

Self-Defense and Defense of Others

The biggest takeaway about self-defense and the defense of others is that the action taken by the defendant needed to be reasonable. Even if there was a mistake, a reasonable mistake can be used as a justifiable form of defense. This is unlike other cases because under most other circumstances, the reasonableness doesn’t matter. Only in self-defense.

This is not an issue of retaliation. Most of the time a person must also need to retreat.

Defense of Property

Katko v. Briney – “Trap” “Spring Gun”

Here we are given a moral dilemma where we try and decide whether life and limb is more valuable than property. In Katko the courts say that it is. However, courts tend to make justifications if the property at stake tends to have more value (thus increasing the interest of protection).

The best way to defend property is to live there. A person then can make the claim of self-defense of limb rather than a defense of property.

Life and limb > property… most of the time.

Recovery of Property

Hodgeden v. Hubbard – Fraudulent credit for purchase of stove

A person has a right to “self-help” (personal action) under two elements

  1. The pursuit is fresh
  2. The force used is not unreasonable and does not breach the public peace.

If one of these elements is not met, the stolen property has been converted and the parties need to go to the courts for a resolution.

Bonkowski v. Arlan’s Department Store – Stealing Jewelry? Wrongly accused

Shopkeepers privilege is when a shopkeeper can detain an individual with a reasonable belief that the detention is necessary to recover property. This can extend to the immediate surroundings so that the shopkeeper has enough time to gather evidence to establish a reasonable belief.

Reasonable belief can be established if a person conceals material, even if it has not been purchased yet.


Public v. Private Necessity

Surocco v. Geary – Blasting house to defend other house

Public – Public necessity is when there is a situation necessary to protect the public good. In these instances, there is no liability to the defendant and no compensation is owed to the plaintiff.

Most often occurs in natural disaster situations:

  1. Wildfire
  2. Floods
  3. Earthquakes

Vincent v. Lake Erie Transp. Co. – Boat causing damage to dock

Private – If a person acts out of necessity to protect their life, limb, or property, and causes damage to another’s property, they are not guilty of a tort. However, they must compensation for the damage caused out of necessity.

Procedures in Torts


Motion to dismiss

For purposes of the motion, the defendant admits all the facts alleged are true. The whole point of this is that the defendant is saying that the plaintiff can’t prove the claim. Therefore, the court is going to evaluate this process as if the plaintiff’s claim is true. If the motion is granted, then the plaintiff can appeal. If the motion is dismissed, most of the time, there is no appeal for the defendant. On appeal, the court will assume that the plaintiff’s claim is true.

Summary Judgement

After discovery (gathering evidence), the defendant claims that because there is no factual dispute, they are entitled to a judgement as a matter of law. This is NOT the case if there are facts in dispute.

During Trial

Objections to Evidence

Any objections need to be made in a timely fashion. If you want to appeal, then you must have objected in a timely fashion. However, you must show significant prejudice against your case by the admittance of the evidence. If you fail to do so, the appellate court will follow the discretion of the trial court.

Motion for Directed Verdict

The defendant will make this motion twice, once after each party has presented evidence. Then, the court will view the evidence most favorable to the plaintiff and ask if a reasonable mind could differ on the facts. If the answer is yes, then the case goes to trial.

Objections to Instructions

Object to the instruction, propose a proper instruction is, and show significant prejudice.


Motion for Judgment Notwithstanding the Verdict

Ask for a directed verdict. This gives the judge a second chance to change their mind about early options for a directed verdict.

Motion for a New Trial

A defendant can ask for a new trial if:

  • Mistaken instruction
  • Verdict is against the weight of the evidence
  • Remittitur: reduce the verdict to the amount that the evidence supports


Elements of Negligence

Understanding negligence is not a science. Instead, the courts have examined several principles to determine whether there was negligence or not. Each case below is going to outline a principle of negligence before we put it all together in a risk-benefit analysis.

Lubitz v. Wells – Golf club

Although it would probably be safer to put the objects away in a safer location, it could put an undue burden on the defendant. For these common objects, the burden is too great for the danger being presented.

Blyth v. Birmingham Waterworks Co. – 25 years before bad weather

How often does it take for something to be foreseeable? Here, we are concerned about the harm, however, when we look at the probability of something like this happening again, it’s not very likely. So, we can weigh this factor of probable foreseeability.

Pipher v. Parsell – Yanking the steering wheel

Here, we are focusing on the danger (gravity of harm). Even if it isn’t so foreseeable that someone might grab the wheel again, given the dangerous circumstances of driving quickly, we need to weigh this danger.

Chicago, B. & Q.R. Co. v. Krayenbuhl – The turntable case

Next the court is going to weigh the utility of activity. Because a turntable does a lot of public good (saving the railroad money, minimize the cost pushed to consumers), there can be room to account for occasional injuries.

Davison v. Snohomish County – Guardrails

Even though some things may be beneficial for the public utility, the cost of maintaining something can be quite high. Thus, when the burden or cost is so high, there may be room for omission without being found liable.

United States v. Carroll Towing Co. – Barge with flour (calculus of negligence)

The calculus of negligence. This is a way to conceptualize elements of negligence. Here are the fators

  • P = the probability of a damage-causing event
  • L = the loss that can be anticipated to result if event occurs
  • B = the burden, the cost of taking precautions that are needed to prevent harm.

So, if B is less than the probability of damage times the loss (B < P * L), the person could be found liable. The big takeaway is that we are doing a risk-benefit analysis

Risk Benefit Analysis

In sum, here are the factors we consider when determining if someone is liable for negligence.

  • Burden on the defendant
  • Foreseeability of an event occurring
  • The danger caused by omission
  • Utility of having an activity
  • Cost of maintenance
  • Probability of a damage causing event
  • Anticipated loss

Standard of Care

Reasonably Prudent Person

Vaughan v. Menlove – Hay Rick

We use an objective standard of the reasonably prudent person instead of a subjective standard. The reason for doing so is because holding people to a subjective (lower) standard is too dangerous and too complex.

Delair v. McAdoo – Worn tire exploded

For instances when the reasonable person would not know the circumstances were dangerous, they still need to follow a minimal standard of care because of the weight of the dangerous circumstances.

However, if an individual knows more than the reasonable person, should we take into account their superior knowledge (follow a subjective standard)? Some courts say yes (Restatement of Torts) and some say no.

Trimarco v. Klein – Shattered shower door

The way to determine the objective standard is through customs. Both the plaintiffs and the defendants can present custom that can be validated through expert testimony (to benefit their case). Then, the jury determines what is the reasonable standard through those customs.

If people do not know the custom of a community, they need to conform to the community. A custom is not definite standard of law. If it violates a law, they can be examined but not necessarily followed.

Cordas v. Peerless Transportation. Co. – Jumping out of moving car

Principle in play: Emergency standard

An emergency standard can be used for most emergencies, but cannot be used if the defendant’s conduct gave rise to the emergency or previous conduct was negligent in and of itself (speeding before needing to brake hard).

Roberts v. State of Louisiana – Blind bump

Principle in play: Standard for those with physical disabilities

We hold physical disabilities to a different reasonable standard than those who do not have that standard. For instance, a blind person is held to the standard of another reasonable blind person. Compare this to Vaughn v. Menlove where we do not have a different standard for those with intellectual disabilities.

If somebody has superior physical abilities, they may be held to that higher standard (although there is no case law to determine whether that is the case).

Robinson v. Lindsay – Snowmobile

Principle in play: When to use a standard for children vs. adult standard (as a minor)

The typical standard for a child is lower than the normal reasonably prudent standard. This is so that children can still enjoy life. However, for dangerous situations, children will be held to an adult standard.

When do we use an adult standard instead of a child standard?

  1. Normal activity for an adult
  2. Engaging in inherently dangerous activities

The better standard is the inherently dangerous activities standard (more encompassing). Consider deer hunting.

Breunig v. American Family Ins. Co. – Inspired by God to drive on the wrong side of the road

Under most circumstances, a person who is found to be legally insane is held to the same standard as the reasonable prudent person. However, if there is no escape (driving) when an unexpected psychotic episode arises (no previous history), there may be room for a defense. In other words, A sudden occurring mental condition should be treated the same way as a sudden occurring physical condition. See Petty.

The Professional

Heath v. Swift Wings, Inc. – Airplane

The standard for a professional is an objective one within their field (not subjective). A doctor must act as an objective doctor would, a pilot needs to act as an objective pilot would, etc.

Someone with superior skill is held to a higher standard if they claim to be specialized.

We also don’t want to use the word average because 50% of pilots would automatically fail to meet that standard. Instead, we have a minimum standard where most in that field can reach.

Hodges v. Carter – Legal Malpractice (Failure to serve properly)

Specifically for lawyers.

Lawyers have a duty to:

  1. Competency
  2. Best judgment
  3. Ordinary care and diligence with consulting a client.

The attorney is not liable for a mere “error of judgment” or If there is previous legal custom that has not been settled by a higher court and is later settled, not anticipating the change of custom.

Boyce v. Brown – Ankle Screw

Takeaway: Standard of care is going to be established by an expert testimony. The only exception as a last resort is that the care should have been so obvious as to not require an expert.

Morrison v. MacNamara – Standing up v. Laying down

National standard v. Local standard v. Similar to local standard.

A national standard is going to always apply to certified medical labs and certified board of physicians. Hospitals are often going to follow a national standard unless there are insufficient facilities. Then those hospitals may be held to a localized standard.

Scott v. Bradford – Sprung a leak

This is a case distinguishing the difference between negligence and battery with consent. If consent is obtained but is not properly informed it is negligence. If consent is not obtained or is exceeded it is a battery. A patient suing under lack of informed consent must prove:

  1. There was not adequate information about material risks
  2. Had they been informed, they would not have accepted treatment
  3. There must a harm or injury from the treatment

For this first element, informing requires adequate information about

  1. The treatment
  2. Available alternatives
  3. Risks

Exceptions to this rule include:

  1. Information should be known by everyone (obvious)
  2. Emergency
  3. Best interest of the patient’s care

Second element, the plaintiff needs to show that they would not have accepted treatment had they been informed of the risks. This is a subjective test.

Third element, if the lack of information was about a risk (say a stroke), and the risk occurred (had a stroke).

Moore v. The Regents of the University of California – Stealing the Spleen

Variations of informed consent.

  • Moore, when the doctor has some research or economic interests, they need to disclose that to the patient.
  • A physicians experience or training can be determined a material risk to the patient. Thus, it would need to be disclosed.
  • Anderson, should a person disclose they had just completed rehab for substance abuse?
  • What about a surgeon who doesn’t disclose they were infected with HIV?

This doesn’t just apply to medical practices. What about the attorney who says that they have never lost and then loses a case? They are not negligent.

Because of all medical practice issues, there are several attempts to reform informed consent to protect both patients and doctors.

Rule of Law

Pokora v. Wabash Ry. Co. – Railroad crossing

A rule of law is something where the Supreme Court establishes something and then everyone interprets it as a set rule (for clarity). Often times this gives rise to exceptions

Violation of Statute

Osborne v. McMasters – Poison in violation of label law

Introducing this principle. Negligence per se can be determined even when a statute does not explicitly tie a duty in the statute. We can determine what a reasonable person would do by looking at legislative intent.

Applicability of Statute

Stachniewicz v. Mar-Cam Corp.

When a statute does not tie a duty against negligence, the courts can apply negligence per se when:

  1. The class is intended to be protected by the statute.
  2. The type of harm that occurred is the kind the statute was designed to prevent.
  3. Appropriate for the statute to apply. The court can choose (don’t have to) apply the statute.

The third point is most up to the discretion of the court.

Ney v. Yellow Cab Co. – Stolen cab

The courts can have a lot of discretion to determine the applicability of a statute as negligence per se.

Wasn’t an antitheft statute, but the courts found it to meet the purpose of preventing runaway cars.

Perry v. S.N. and S.N – Failure to report abuse

Easily meets the two standards of 1) Who is the protected class (prevent child abuse) and 2) did the protected class feel the harm that that the statute was meant to prevent (actual child abuse).

But this case focuses on appropriate. The court looked at the big picture and determined it was not fair, workable, or wise to find this appropriate for the following reasons:

  1. No duty imposed by common law, when often there is already a duty imposed by common law
  2. Notice (how minor of knowledge does it need to be to qualify)
  3. Disproportionate effect (different under criminal, but puts them on same ground in civil).

Effect of Statute

What is the effect of saying that someone is negligent or contributory negligent per se?

Martin v. Herzog – Lights on buggy

Do the test: Who is this designed to protect (Drivers)? Did they feel the harm trying to prevent (Crash)? Passed the test.

“Wholly unexcused” – Means that there can be some excuses, see Zeni.

Zeni v. Anderson – Snowy walk to work

There are three possible approaches: This case focuses on the first

  1. Violation of Statute as Rebuttable Presumption (Excuse)
  2. Violation of Statute as Negligence Per Se – Inflexible and mechanical (what we’ve been focusing on thus far)
  3. Evidence of Negligence in the act of violation. – Too flimsy, rarely used.

Restatement (Second) of Torts gives 5 excuses that can be made why one is not negligent per se:

  1. Incapacity
  2. Does not know need to comply
  3. Unable to comply
  4. Confronted with emergency
  5. Creates risk for others.

However, we don’t want to use this lightly. The court’s put a lot of weight on the statute and juries don’t like violations. So, even though excuse evidence will always be permitted, we don’t want to use these unless we have to.

Side Note: Summing it all up

Here are the several ways the courts have found determined whether an actors conduct is reasonable.

  1. Common law (Case-by-case analysis)
  2. Rule of Law (Rules from the Supreme Court)
  3. Duty by statute (Duty + cause of action imposed by existing statute)
    • See Dram Shop Laws
  4. Applied violation of statute as negligence per se (Court imposed duty of implied negligence through statute)

Proof of Negligence

Circumstantial evidence

Goddard v. Boston & Maine R.R. Co. – Fresh banana
Anjou v. Boston Elevated Railway Co. – Old banana
Joey v. Great Atlantic and Pacific Tea Co. – Don’t know how old banana
Ortega v. Kmart Corp. – Slip on Milk

These cases all deal with circumstantial evidence. When we hear this, we often think “they have a weak case”. However, in many cases, circumstantial evidence is far superior than eyewitness testimony. This is because witnesses can be impeachable. Meaning, people don’t often recall information accurately. This is the reason why we have statute of limitations (to account for fading memory in testimony).

Circumstantial evidence on the other hand can be seen as more accurate. For instance, DNA evidence is circumstantial evidence (i.e. didn’t see the crime but the DNA matches the person who committed the crime or tort).

How to determine if the circumstantial evidence is helpful:

  1. Notice
  2. Condition produced unreasonable risk of harm
  3. Defendant did not use care to reduce the risk
  4. Injury proximately caused
Jasko v. F.W. Woolworth Co. – Pizza

Notice was constructive because of the nature of the work.

H.E. Butt Grow. Co. v. Resendez – Grapes

Res Ipsa Loquitur (Speaks for itself)

Byrne v. Boadle – Sack of Flour (First case)
McDougald v. Perry – Tractor spare tire
Larson v. St. Francis Hotel – Arm chair
Cruz v. DaimlerChrysler Motors Corp. – Airbags
James v. Wormuth – Losing the wire (Medical Malpractice)
Sullivan v. Crabtree – Think Huntington Canyon – Curvy windy road.

There is no such thing as a good res ispa loquitur case

We can prove negligence through several ways:

  • Eyewitnesses (unreliable)
  • Circumstantial evidence

Res ispa loquitur is an explanation of circumstantial evidence.

We need to ask: More often than not, this would not of occurred had there not been any negligence. Evidence points to the defendant being the responsible party.

Most of the time this will need to be proved with expert witnesses (“more often than not, a mechanic can show why something came apart while a regular person can’t”).

You need to first convince the trial judge that there is a res ispa loquitur. If it is met, then the effect is that the jury can hear the case and make up their minds. There are three possible effects:

  1. An inference of negligence can be drawn by the jury.
  2. A presumption of negligence arises (defendant must rebut)
  3. Defendant has burden of proof to show that they are not negligent.

But most of the time courts follow the first approach: an inference of negligence which the jury may or may not draw. Competing explanations are for the jury to review.

More often than not, you will lose your res ispa loquitur case. These are also really poor cases to negotiate settlements.

Causation in Fact

Sine Quo Non (“Without which, not”)

Sine Qua Non translates to “without which, not”. This is the “but for” test of causation. Even if we assume that they were negligent, we need to prove that their negligence caused the injury.

Perkins v. Texas and New Orleans R. Co. – Train collision

There is no doubt that the plaintiff would have been aware of the incoming train. He would have been contributorily negligent as a matter of law. So, we are trying to determine if the railroad was negligent enough to cause the accident. They were speeding, and thus negligent, but did their speeding cause the accident?

What is our legal rule for causation: “The injury would not have occurred but for the negligence of the defendant.”

Proof of Causation

Reynolds v. Texas & Pac. Ry. Co. – Falling down the stairs

We don’t rely on post hoc and propter hoc: Just because Z came after Y, that does not mean that Y caused Z. The plaintiff has to prove that the negligence greatly multiplied their chances of injury.

You do not need to prove causation beyond all doubt, you just need to prove that “more likely than not” had there not been negligence, then there would have been no injury.

Burden of proof:

  • Criminal law = Beyond reasonable doubt
  • Torts = preponderance of the evidence “More likely than not”
Gentry v. Douglas Hereford Ranch, Inc. – At the ranch

So, what are the claims of negligence against the ranch? The steps had not been maintained. So, the plaintiff says that Bacon stumbled over the steps. In other words, it becomes essential to determine what caused Bacon to stumble. The issue is that Bacon did not remember what he stumbled on. Previously he had stumbled because he was clumsy (nothing to do with the stairs).

The evidence here is speculative and so there can be no cause.

Kramer Service, Inc. v. Wilkins – Skin cancer from glass

There is no such thing as cancer being caused by a traumatic experience.

Defendants are allowed to provide testimony that makes the plaintiff’s burden difficult to prove a certain inference of cause. The defendant’s don’t need to prove these other things (probable), but only that they could happen (possible).

We also discuss informed consent here, recapping what we discussed about causation in Scott v. Bradford. That is, if the person was informed, they would not have consented.

Herskovits v. Group Health Cooperative of Puget Sound – 39% to 25% chance of survival

If chance of survival is under 50.1%, then the defendant can be liable for the significant decrease caused to the plaintiff. If the chance of survival is over 50.1% and then drops below that, then the defendant can be liable for the entire wrongful death of the plaintiff.

This principle also applies to legal malpractice cases but there they need to show 1) negligence and 2) the negligence caused the injury (difficult to measure the injury because often already being paid for the injury).

Daubert v. Merrell Dow Pharmaceuticals, Inc. – Expert witness to prove causation

This case is about causation in scientific and medical cases. How do we establish causation in such complex cases? For instance, how can we prove that ingesting this drug caused the defect when countless others ingest without having the defect?

  • Epidemiological Proof
    • Studies on humans
  • Animal studies
  • In Vitro (test tube)
    • Study of cells and tissues
  • Chemical structure activity analysis
    • Comparing stuctures one to another
  • Clinical differential diagnosis
    • Doctor examination (what solves what)

Courts have a strong preference towards epidemiological proof.

The trial judge is the gatekeeper. That is, the testimony must be provided to the judge who will determine if the evidence is helpful or misleading to the jury.

What are some of the things that the judge should consider when determining if a case is admissible:

  • Whether the theory or technique employed by the expert is generally accepted in the scientific community
  • Whether it’s been subjected to peer review and publication
  • If it can be and has been tested
  • And whether the known or potential rate of error is acceptable.

Additionally, the court will consider whether the testimony developed out of pre-litigation research or if it was purely related to the litigation.

Concurrent Causes

Hill v. Edmonds – Hitting the tractor

There are two “but-for” causes for one accident. There are often times where the conduct from several parties result in the same injury. In these instances, both parties are liable for the injury that occurred.

Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co. – Railroad fire

In this case, we can’t use the “but-for” test because there is no way of knowing which fire had actually burned the property. When there are multiple potential concurring causes that independently would have caused the injury, the but-for test would not work. However, each fire can be considered a substantial factor in the land being destroyed.

Problems with Determining who Caused the Harm

Summers v. Tice – Hunting (1 injury, two negligent parties)

This is a case where both defendants are negligent but we can’t determine who actually caused the injury (only one hit the plaintiff). Therefore, there is no but-for test that can be applied.

Here, we find in favor of the plaintiff because the defendants were both negligent. Therefore, the burden of proof shifts from the plaintiff to the defendant. The defendant then needs to show that they either did not cause the injury or were not negligent. If they can’t figure out who caused it, then they will be jointly liable.

Sindell v. Abbott Laboratories – DES (prevent miscarriage, caused cancer)

200 companies. Can’t use Summers because not all the parties were present. Can’t use Hall because too many companies. Introduced the “market share liability”. Market share liability is that if you have a substantial share of the DES market, then you will be liable for that share. (i.e. if you have 10% of the market, then you pay for 10% of the damages).

Challenge with inadequate records caused this theory to flop and very few jurisdictions have adopted the theory today.

Proximate Cause

Proximate cause is arbitrary (random) in where we draw the limits of holding a defendant accountable. The cases below will outline this principle. This occurs after a plaintiff has proven duty, breach, cause in fact, and damages. So now the task is to determine if there is a reason to not hold people liable.

Proximate cause can be defined as “damage was directly traceable to the negligent act.”

Unforeseeable Consequences

Ryan v. New York Central R.R. Co. – Railroad fire

Defendant is not liable because it was too “remote” because other accidental circumstances could have influenced the fire. Additionally, there are policy considerations being taken into affect. Some policy considerations include:

  • Plaintiff is responsible for their own property and gathering insurance.
  • The railroad should not be liable for countless people who the fire could spread.
Bartolone v. Jeckkovich – Schizophrenic: car accident

These injuries were so far removed, they were not foreseeable. However, the court says that the defendant is liable. Why? The defendant is to “take the plaintiff as he finds him.” This is called the “eggshell skull” rule. This means that although the defendant does not know the weakness, an injury is caused through negligence, the defendant can be liable for any damages incurred. In other words, they can be liable for damages to somebody who may not be as physically or mentally stable as the reasonable person.

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. – Ship explosion

Steps to follow for Pelomis Analysis: Direct (Sequential) Causation

  1. Determine if there was negligence
    • Was any kind of damage foreseeable?
  2. Determine if was an injury
    • Foreseeability of consequence is immaterial.

Ask, what facts do we emphasize?

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. “Wagon Mound No. 1” – Oil fire, dock owners

Steps to follow for Wagon Mount No. 1 Analysis: (Foreseeable Risk)

  1. Determine if there was negligence
    • Was any kind of damage foreseeable?
  2. Determine if there was reasonable foreseeability of the consequence.
    • The actual damage must align with the foreseeability of that damage to find liability.
  3. If so, then the a jury should be able to consider the case.

Courts are much more inclined to follow this case. The restatement (third) of torts § 29 also follows this principle:

An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct [negligent].”

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. “Wagon Mound No. 2” – Oil fire, ship owners

If step 2 from the previous analysis is met (See Wagon Mound 1), then we do a risk analysis. Some small risk of fire, but the loss would be substantial, and there would have been a minor burden to minimize the risk of fie. Here, all the person had to do not pour the oil into the water. (P * L > B).

Palsgraf v. Long Island R.R. Co. – Fireworks at the train station
Cardozo – Majority:

There was negligence. However the negligence was directed towards the person who dropped the bag. Negligence is a term of connection. A person is negligent if they breach a duty to the person, not the whole world (“negligence in the air will not do”). This means that the question becomes? Did we breach a duty to the plaintiff. Nothing here (shuffling bag) indicates a foreseeable threat to the plaintiff.

Andrews – Dissent

Whole world is a foreseeable plaintiff. That means, any action of negligence against one person, can result in liability towards another. However, there are limits to liability. What are some things that the court should consider?

  • Natural and continuous sequence?
  • Substantial factor?
  • Direct connection without too many intervening causes?
  • Effect not too attenuated (reduction of value)?
  • Could the result be foreseen?
  • Is it too remote?

If the answer is yes, then this is a question for the jury.

Yun v. Ford Motor Co. – Spare tire

We need to follow the risk analysis that we conducted in past cases:

What risk did we hope to avoid?

  • The tire could fall off. We don’t know where it may fall off and how the fall would create. One of the risks could include harm to the person who went to retrieve the parts.

Miller says that this case was poorly decided and that the dissent was right. The reason why we can be confident about that is because the Missouri Supreme Court overturned the rule. They both followed the same analysis. The majority said it was extraordinary. The minority said it was a jury question (could be foreseeable).

Intervening Causes

Derdiarian v. Felix Contracting Corp. – Workplace car accident

If the acts of a third person intervene between the defendant’s negligent conduct and the injury of the plaintiff, the causal connection is NOT automatically broken.

If that is the case, then we need to look to see if the act is a normal or foreseeable consequence created by the defendant’s negligence.

In other words, we are doing a risk analysis:

  1. What are the risks that caused us to hold them negligent in the first place.
  2. Are the consequences from the occurrence one of those risks that were established in step 1?
  3. If so, then this is a question for the jury

The precise matter of how the consequence comes about does not matter so much.

Watson v. Kentucky & Indiana Bridge & R.R. Co. – Fire at the train spill

Mischievous conduct can be considered unforeseeable which breaks the chain of causation because it is a superseding cause.

Superseding and intervening cause are different where a superseding cause is a type of cause where a third party acts in a way that is so unforeseeable that it acts to negate liability from the defendant’s action.

Not superseding causes include

  • Innocent acts
  • Negligent acts
  • Sometimes reckless acts

Superseding causes include

  • Reckless acts
  • Malicious/intentional/criminal acts

Run through risk analysis.

Fuller v. Preis – Suicide

As a matter of law, most of the time, suicide is considered a superseding cause that causes the defendant to not be liable. However, there are some courts that say that an irresistible impulse of suicide can keep the defendant liable. So, the defendant is going to try and prove that there is no irresistible impulse by providing evidence that the decedent had planned out the suicide in some way (left a note, went and purchased a gun or shell, etc.)

McCoy v. American Suzuki Motor Corp. – Rescue Doctrine, Hit with a flare

There is a difference between a rescuer and a volunteer. A rescuer is more valued by the court.

The rescue doctrine allows the plaintiff to sue the person whose negligence created the need for the rescue. The reason for this is that “danger invites rescue”. In other words, the negligence caused a danger, and it is foreseeable that someone would come to the rescue.

Requirements for a rescuer:

  1. Defendant was negligent to the person who was rescued which caused an image of peril.
  2. The appearance of peril was imminent.
  3. A reasonably prudent person would have concluded that the appearance of peril existed.
  4. The rescuer acted with reasonable care.

How long does the rescue efforts stay attached to the negligence of the defendant. The rescuer remains a rescuer until a reasonably prudent person could conclude that the appearance of peril has ended. Quite often, what ends a rescue is when the extra risks created by the negligence have been resolved.

When a rescuer acts innocently, any aggravating injuries will still be liable to the original defendant. Same with negligent acts by the rescuer. However, when we get to reckless, there is more of a question.

Public Policy

Proximate cause lines are arbitrary and a court will often use public policy considerations to determine if we should hold a party liable.

Kelly v. Gwinnell – Social intoxication

Hold social hosts liable for intoxication of guests because of the dangers of drunk driving, etc. (varies by jurisdiction).

Enright v. Eli Lilly & Co. – DES Granddaughter

We have to draw the line at some point for when to hold a defendant liable. There is no way of knowing how long the effects would last, at some point it becomes unreasonable to hold a defendant liable.

Summing Up Cause

All jurisdictions have narrow (direct) and broad (foreseeability) application of cause.

Risk Analysis

  • Why do we hold a person negligent? What risks are we trying to avoid?
  • If one of those risks materializes, then we hold the defendant liable.

We have to argue the facts of a case, not just the related law. (i.e. not just “the defendant’s actions were the proximate cause”). We need to ask “why” (i.e. the defendant would argue that it was not proximate because it is unforeseeable that a second car would run over the victim. The plaintiff would argue that it was proximate because it is foreseeable that hitting someone with a car would cause an injury that could lead to death). This is the most important takeaway from Proximate Cause.

Duty of Care

Failure to Act

Restatement of Torts §§ 37-44

One may have a moral duty (you should save this child) to do something but not a legal duty (you don’t have to save the child). Why? It is not in our culture to compel someone to act. We emphasize autonomy, separateness, and liberty over community values.

See this little snippet from Criminal Law about actus reus.

  • Omissions are more ambiguous than acts.
  • Draw a line: When is a moral obligation strong enough?
  • Practical reasons: sometimes forcing people to help can make things worse.
  • Freedom: Criminal law should prohibit people, not compel or require people to act.
When is there a duty to act?

Instead, we can recognize rare situations where there is something different so we hold a party liable for failure to act. What are these situations?

  • § 38. A statute imposes a duty on a party. An example is a statute that requires a person to report child abuse. There is no common law duty, but the statute causes the court to consider the facts.
  • § 39. Actor’s prior non-tortious conduct created a risk of harm and failed to minimize the harm. Think about hitting a deer, the person needs to either call for help or get the deer off the road.
  • § 40. A person who has a special relationship with another has a duty to that person within the scope of that relationship.
    • A common carrier with passengers (bus driver has a duty of care to passengers)
    • An innkeeper with its guests
    • A business that holds the business open to the public. See L.S. Ayres & Co. v. Hicks below.
    • Employers to employees
    • School to students. Except see Commonwealth v. Peterson and Hegel v. Langsam below.
    • Landlord to tenants
    • A custodian with those in custody. i.e. the state takes custody of children
  • § 41. An actor who has a special relationship with another owes a duty to third parties regarding risks to third parties that arise from the relationship.
    • Parent with dependent children
    • Custodian with those in custody
    • Employer with employees
    • A mental health provider.
  • § 42 Undertaking a duty to act. These are voluntary actions that increases the risk of harm to the person needing help or the person relies on the actor’s help from their actions.
Commonwealth v. Peterson – Active Shooter on campus

School duty to students. No special relationship when the school believed the threat to have passed.

Hegel v. Langsam – Student starts drugs at school.

Schools have a duty to teach, not babysit their students.

L.S. Ayres & Co. v. Hicks – Fingers stuck on the escalator

Store owner is not liable for lack of negligence, but does have a duty against aggravating the injury from things that occur on their premises.

J.S. and M.S. v. R.T.H.

Particularized foreseeability – foreseeable that a particular/specific victim is targeted.

When does a spouse have a duty to warn others of their partner’s action? Courts consider:

  1. Foreseeability of the harm
  2. Opportunity to prevent the harm
  3. Comparative interests between the parties and public policy
  4. And societal interest in proposed solutions.

As far as marriage relations go, courts value the sanctity of marriage but will impose a duty on a spouse to warn others for outrageous actions, especially when the legislature has emphasized the importance of reporting child abuse.

Tarasoff v. Regents of University of California

For therapy, there is no special relationship between the psychiatrist and the victim. However, there was a special relationship between the psychiatrist and the patient.

Psychiatrist arguments:

  • Breach of patient confidentiality would break the trust that the patient would have with the doctor. Maintaining that trust is much more important than breaking it.
  • There were a couple of months between the patient release and the action of killing the victim. The passage of time could break the proximate cause chain.
  • Providing way too many unnecessary warnings.

However, the court determined that the doctor has a duty to warn the third person due to the special relationship they have with the patient.

Premises Liability

Premises liability is a very old type of case law where we are trying to determine when an owner or possessor has a duty to those outside and within the premises or property.

One could argue that this is a type of negligence. Instead, it developed rules to determine the status of a person using the land and determined what duty was owed to them because of that status. There are three overarching statuses but the concept has evolved to include exceptions to other types of statuses.

Liability of Landowners and Possessors for Those Outside the Premises

Taylor v. Olsen – Loggers and their decaying tree (Natural Condition)

The original rule was that a landowner had no duty to protect others from those things that arose as a state of nature. However, trees are the exception to the rule.

Instead, we need to look at a variety of circumstances related to the trees:

  • The number of trees
  • The landowners use of the trees (if you are logging, then you are already among the trees
  • Nearby traffic

This is a better standard than making a “urban v. rural” distinction.


  • There is a higher standard of care due to their profession and the nearby traffic.
  • However, it wasn’t found by a reasonable inspection. Therefore, there is no cause-in-fact. The element is missing for the plaintiff to find a case.
Salevan v. Wilmington Park, Inc. – Baseball (Artificial Condition)

The defendant had taken precautions but was not sufficient because there was still a foreseeable injury that was occurring. Lots of B< P*L going on here.

Additionally, if a person is straying a short distance onto the private land for the purpose of “casual travel”, then landowners can be liable for defects that occur on that land.


  • This case is an artificial condition where the landowners actions may cause injury out of the property.

Liability for Those on the Premises

There are three main types of statuses that are present:

  • Trespassers
  • Licensees
  • Invitees

Landowners have a different duty of care to each of these statuses so it’s very important to distinguish what status the plaintiff is. Here is our steps to analysis:

  1. Determine the status of the visitor
  2. Figure out the duty of care owed to the visitor
  3. Decide if you would want to waive any defenses for the visitor’s behalf


Sheehan v. St. Paul & Duluth Ry. Co. – Walking along the tracks

Definition: A person who is on the property without permission and without a specific purpose regarding the defendant.

Duty: You can’t treat trespassers like outlaws, but you are not required to keep watch for trespassers. There is a duty once the trespasser is discovered (then you try to avoid injury).

Railroads are unique where if they are aware of a particular area where there is a high frequency of trespassers, then they need to be mindful of any particular dangers in that area.


Barmore v. Elmore – Social guest talking business then attacked by son
Licensee – Overview

Definition: A licensee is a person who is permitted to be on the property for their own purposes. They are on the property where the presence does not benefit the landowners but is tolerated by the landowner.

Additionally, a social guest is a licensee, even though they were invited on the property. Why? Because the guest is benefiting from the interaction. They should take the property “as it is”.

Duty: The duty that the landowner has to the licensee is to warn them of any hidden dangers that the landowner is aware of. Here, the defendant was not aware of any potential danger (according to the court).

Invitee – Overview

Definition: An invitee is a person who is present for the purpose of conducting business. A person may not be welcome (e.g. an IRS agent coming to an audit), but they may still be considered an invitee. A person who confers an “incidental service” does not make it to the status of invitee, they are still a licensee.

Duty: What duty is owed to the invitee that is above that of a lisencee (meaning, do everything that you would for a licensee + what?)? The landowner also needs to exercise reasonable care to discover dangers that he did not know about previously.

Why wasn’t the plaintiff an invitee in this case even though he was conducting business? Because he was conducting business with the lodge, not with the defendant.


The difference between a licensee and an invitee is vital because it could change the outcome of the case. The family would have needed to discover the dangers of his son. He would have had a much better outcome because this would have at least gone to the jury.

Invitee Subtleties

Campbell v. Weathers – Fell in shops trapdoor

Definition: An invitee is a person who is invited onto the premises of another in connection with the business carried on by the landowner.

Types of invitees

  • Business visitors (Doesn’t matter if they make a business transaction)
  • Public invitees (Premises are open to the public)
Whelan v. Van Natta – Box in the back

When does the status of an invitee or licensee change? Does it make a difference? Shouldn’t this just go to the jury anyways?

Other Categories


Attractive Nuisance doctrine – holds landowners liable for injuries children sustain do to an artificial feature of the land that entices the child to encounter the feature and sustain injuries.

Steps according to Restatement of torts § 339

  • Does the owner know that children are going to trespass?
  • There is a feature that could cause injury to the children, and the owner knows of that risk?
  • Children, because of their youth, don’t appreciate the danger
  • Conduct a burden/risk analysis
Persons privileged regardless of consent

Such as a firefighter.

Courts have a diverse way of handling this topic by  treating these categories in several ways:

  1. As a licensee
  2. As an invitee
  3. Entitled to the duty of a licensee or invitee depending on other visitors
  4. As a separate category
  5. Entitled to reasonable care regardless of the position.

People usually have no duty to warn firefighters for the danger (“firefighter’s rule”). However, if the injury arose not from the fire but something independent, then the firefighter’s rule does not apply.

Lessors and Lessees

Borders v. Roseberry – Freezing of the roof

The old common law rule was that when the lessor leased out an estate to the lessee, possession passed into the lessee and the lessor was not liable to the lessee or their guests. There are the 6 exceptions listed in this court. We only need to focus on the 6th where the lessor should not be negligent in making repairs.

Pagelsdorf v. Safeco Ins. Co. of America – Moving furnature

Dropping the old rule.

The courts here decided to take a new approach because the way of looking at a lease had changed from “estate” to “contract”.

Because this is a contract, we should follow ordinary negligence principle that the lessor has to exercise ordinary care. Removes the distinction between licensee and invitees

Consider Coase’s Theorem. Property owners have such an ability to bargain and create contracts that any costs that the court imposes on property owners can easily be negotiated between the owners and their tenants.


Plaintiff’s Conduct

Contributory Negligence

Butterfield v. Forrester – Beam in the road

Contributory negligence is a complete defense against the negligence of the defendant. It is an affirmative defense meaning that the defendant must make the defense at the beginning of the litigation.

Why do we have the defense? To prevent plaintiffs from coming into the courtroom having done wrong and hoping to be righted despite the wrong.

Is contributory negligence still used? There are only four states that completely negate the defendant’s negligence based on contributory negligence. Instead, most states follow a comparative approach and simply lessen the damages the plaintiff can collect.

Other things to consider:

  • Comparative negligence is not a defense for any intentional torts
  • Can be used when a defendant violates a statute
  • Certain statutes abolish comparative negligence for the purposes of the statute
Davies v. Mann – Donkey

This rule was an exception to the plaintiff being barred from recovery due to the defendant’s last clear chance of avoiding the injury.

Imagine we are on a train journeying through defenses. We started at contributory negligence and stopped at last clear chance before reaching our destination of comparative negligence.

Comparative Negligence

Why do we have comparative negligence? We believed that contributory negligence was too harsh on a plaintiff.

There are two types of comparative negligence:

  • Pure
    • The plaintiff recovers damages which is reduced by the percent of their fault.
    • I.e. Plaintiff is 90% at fault for damages of 100,000. Plaintiff can collect 10,000.
  • Modified
    • At some point, the plaintiff’s fault is so great that they are barred from recovery.
    • I.e. plaintiff is 90% at fault for damages of 100,000. Plaintiff can collect 0.

Most jurisdictions follow a modified approach. However, there are several types of modified plans.

  • 50% jurisdictions
    • Plaintiff can recover if their fault does not exceed 50% or is not greater than the defendants
    • Plaintiff can gain 50%
    • Iowa is a 50% jurisdiction
  • 49% jurisdictions
    • Plaintiff can recover as long as their fault is “not as great as,” or is “less than” the defendants.
    • Plaintiff gets 0%
    • Tennessee is a 49% jurisdiction. See McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).
Questions to Consider

What if there are several defendant’s? Do we compare the plaintiff’s negligence with each defendant individually, or should we aggregate? If they are individual, then there are very few circumstances where the plaintiff can recover. Iowa uses the aggregate standard.

Who gets certain percentages? Only people who are parties to a case can be attributed a percentage. For instance, a hit and run cannot be sued as a party if you are unable to find them. Additionally, some people may have immunity (such as state government) and can’t be allocated a percentage.

What factors does the jury consider when coming up with a percentage?

  • The parties’ conduct
  • The causal connection between the conduct and the injury

What kinds of conduct is subject to comparison? Negligent and reckless conduct is subject but intentional torts will never be subject to comparison.

Joint Liability

Joint liability is when there are multiple defendants and they are liable for the total amount. Several liability is when there are multiple defendant’s who are individually liable for the amount.

Concurrent joint tortfeasors is when defendant’s act individually but bring about the same injury (pile up car accident).

Concert joint liability is when the defendant’s are acting together which brings about an injury (two drivers distracting each other to cause a car accident).

There are issues with joint liability:

  • There are often times “judgment proof” tortfeasors (a party who doesn’t have the money to pay for damages) causing other defendant’s to pay for the whole judgment. This is not fair to the defendant’s who have to pay.

How have jurisdictions resolved these measures?

  • Forgo joint liability
  • Apply it only if the plaintiff’s are 0% liable
  • Apply it only if the plaintiff’s are beneath 50% at fault
  • Use it to recover only economic damages (medical bills, lost wages, etc.)

Assumption of Risk

Where the plaintiff assumed the risk so the defendant cannot be liable.

Seigneur v. National Fitness Institute, Inc.

Generally, contracts are enforceable as long as the language is clear and if there are no public policy exceptions. What policy considerations are considered?

  1. Whether the defendant has intentionally caused harm.
  2. If the defendant has a disproportionate bargaining power.
  3. When the transaction relates to a public interest.
    • Public policy issues come into play when there are common carriers (transportation), hospitals, day cares, etc.

There are two elements for someone to be assume the risk:

  1. Subjective awareness (actually knew the danger)
  2. A voluntary decision to accept the risk. (See Rush v. Commercial Realty Co.)

Statute of Limitations and Repose


Statute of Limitations refers to the statutes by jurisdictions referring to the amount of time a plaintiff has after the event of the claim, to file their complaint in court.


The purpose of the statute of limitations allows the defendant to mount a reasonable defense. It also keeps old, “stale”, claims out of court.


The statute of limitations are statutes. They will vary by jurisdiction. However, generally, the statute of limitations last for about 2 years.

Discovery Rule

Often times, the injury may not be discoverable right away. This is often the case when it comes to medical malpractice cases. The discovery rule simply says that the statute of limitations starts when the plaintiff is aware (or should be aware) of the injury and knows the casual connection between the injury and the defendant.

Statute of Repose

How is a statute of repose different from the statute of limitations. For a statute of repose, there is no relationship to the between the plaintiff’s claim.


So, for example, the plaintiff has a negligent surgery and does not suffer an injury for several years. Statute of limitations starts with the injury. Statute of repose begins at the time of the negligence.

The statute of repose is about 6 years from the negligent act.

There are two exceptions:

  1. If a foreign object is unintentionally left in a body.
  2. There is continued act of negligence (very difficult to prove because each interaction needs to be a new cause of action).

In Iowa, the statute of repose is 15 years from the date that the product was put into use.


  1. If a warranty extends beyond the years outlined in the statute.
  2. Misrepresentation of the product.
  3. If the product has harmful material (this is because some of the products have harmful material where the injury occurs later than 15 years). Examples of harmful material include:
    1. Silicon within the body.
    2. Chemicals
    3. etc.

Strict Liability

Strict liability refers to the courts always holding the defendant liable for injuries that are sustained by plaintiffs. In other words, there is almost no excuse


  • Livestock are regulated heavily by statute.
  • Wild animals
  • Dogs
    • Once upon a time, dogs were allowed “one free bite”. This is not the case any more. Instead, owners are expected to know when dogs pose a danger to humans. The owner is typically liable if the dog is attacking or attempting to bite a person. If the dog is not attacking or attempting to bite but causes an injury (chases a cyclist who crashes), then you use the standard negligence standard.

Abnormally dangers activities

Rylands v. Fletcher

Even if not negligent, can still be liable for damages.

Recall Spano v. Pernini. How is an activity dangerous? You need to look at the activity, and the location where the activity is taking place. The court considers:

  1. Risk of harm
  2. Inability to eliminate the risk

Examples include:

  1. Blasting
  2. Using chemicals



We conduct a risk analysis. Why do we say certain conduct is negligent? What risk are we trying to avoid?

Contributory negligence is not a defense.


There are two main kinds of remedies provided by a court: injuntive relief or damages. There are three kinds of damages:

  1. Nominal damages (trivial amount)
  2. Compensatory damages (Restoring the plaintiff)
  3. Punitive damages (Punishing the defendant)

Calculating Damages (Compensatory)

Anderson v. Sears, Roebuck & Co.

This is about the maximum recovery rule. For each item of damage, the judge can determine the maximum amount someone can recover. If the jury’s determination was higher than that amount, then the judge may order a new trial or remitter to reduce the reward to the proper amount.

Economic Losses
  1. Past and future medical bills
  2. Increased medical monitoring
  3. Past wages lost
  4. Loss of earning capacity (I can’t work anymore)
    • Could be the most expensive but is also the most unpredictable.
Non-Economic Losses
  1. Mental anguish as a result of physical pain
  2. Loss of function or appearance
  3. Emotional distress from legal malpractice
  4. Loss of enjoyment of life (hedonic damages)(activities that you are not longer able to do. i.e. bowling, spending time with grandchildren, etc.)

Per Diem: The Per-diem argument is one way that people try and measure these damages. The idea is to make the focus of these losses to put it to a daily or hourly wage and calculate it for the expectancy for life.

Present Value

Do we account for the present value of future damages? The issue with this is that the future cost of things is variable and unpredictable. The goal is to use the money for the damages. If you pay for all of those damages up front, then the person is going to be overcompensated. That is because plaintiffs are going to invest and will make more money than what their actual damages.

Do we consider inflation? Typically the answer is no.

Punitive Damages

Punitive damages are not as simple as they may sound. Over time, Supreme Court rulings caused punitive damages to became rare. Instead, courts want to focus the “win and go home” philosophy. The main exception are business tort cases.



The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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