Was There a (Legally Cognizable) INJURY?

Was There a (Legally Cognizable) INJURY?

Was there a (legally cognizable) INJURY?

Physical harms

Bodily harms (including fatal and non-fatal contusions, lacerations, broken bones, internal organ damage, diseases, and physical illnesses) – corresponding duty

Damage to or destruction of tangible property (including land, structures and personal possessions) – general/unqualified duty

Loss of wealth - corresponding duty

Emotional distress - limited/qualified duty

What type of tort claim(s) does plaintiff have?


Prima facie case of NEGLIGENCE

(1) P has suffered an injury (threshold question)
(2)A is owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P (question of law)
(3)A breached that duty of care (question of fact)
(4)A’s breach was an actual and proximate cause of P’s injury

Was there a DUTY of care owed to plaintiff?

**Duty element is question of law and is determined by judge **
(A) Unqualified Duty to Conduct Oneself with Reasonable Care for the Person and Property of Others
(1) Old rule: privity (Winterbottom)
Duty owed? Only liable when in contact with party or when party purchased directly
(2) Modern rule: reasonable foreseeability (MacPherson and Heaven)
Duty owed? Duty to exercise reasonable care to avoid a risk of harm to others: Always a duty not to commit a misfeasance against anyone.
(B) Duty to Rescue and Protect (qualified duty)
Misfeasance: negligent harm through action
Nonfeasance: failure to act; Assumption is that there is no duty to take affirmative acts to rescue someone in the absence of special underlying circumstances or a special relationship.
Exceptions to general no affirmative duty rule
(1) Duty-to-rescue (state “Good Samaritan” statutes): person who attempts rescue is immunized from liability for negligence
(2) Voluntary undertakings: A promises or chooses to aid B and must do so with reasonable care
(3) Imperilment: A with or without fault puts B in peril
(4) Special relationships

** generally must establish special relationship**

Proprietor/Customer (Baker)

Doctor/Patient (Tarasoff)


(C) Premises Liability (qualified duty)
**Person need not own property to be a possessor for purposes of premises liability**
Licensee/Invitee/Trespasser Distinction

Who is an invitee? Person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage (business visitor)

Duty owed? Provide “reasonably safe” premises


Who is a licensee? Person who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner (social guest)

Duty owed?

Majority rule: Possessor must warn of hidden dangers on premises about which possessor knows or should know

Minority rule: Possessor owes a licensee only a duty to refrain from willfully injuring them (Mississippi)


Who is a trespasser? Person who enters upon another’s premises without license, invitation or other right; a trespasser enters another’s property “merely for his own purposes, pleasure or convenience, or out of curiosity; and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.”

Duty owed? No duty owed to adults; possessors must take reasonable care to prevent injuries to child trespassers

Attractive nuisance doctrine

Majority Rule: Liable for physical harm to children if (1) knows/should know children likely to trespass, and (2) knows/should know serious risk exists

Minority rule: Trespassing kids can’t sue for attractive nuisance

Rejection of plaintiff status categories

Majority rule: Approximately ½ of the states have abolished invitee-licensee distinction, reserving duty of reasonable care to all entering property with permission and distinguishing from trespassers

Minority rule: Fewer than 10 states have abolished all categories and established general duty of reasonable care for all persons, regardless of status Rowland v. Christian, (California)

(D) Pure Economic Losses (qualified duty)

**Applies only to negligence**

Majority rule: No recovery for pure economic losses caused by a ’s negligence. (Policy = limit scope of L, like privity)

Major exception is for accountants

Pure economic loss IS NOT

Pure economic loss is not suing for lost wages if you cause physical injury that makes  miss work.

Pure economic loss is not running into my truck which I need for my business, so I’m suing for lost profits

Was there a BREACH of a duty of care owed to plaintiff?

**Breach is a question of fact and is determined by jury – judge may only take away if evidence is so strong that he can conclude that no reasonable jury could find (or not find) breach**
** Standard is generally to take reasonable care, not to make something reasonably safe – look to whether  was reasonably diligent in carrying out duty, as opposed to whether ultimate conditions were unsafe**
Standards of Care

Strict Liability

Prudence does not deter liability

Case(s): Pingaro (state dog bite statute)

Extraordinary Care

“Highest duty of care”

Case(s): Jones (common carriers)

Common carriers: commercial and governmental operators of boats, buses, planes, and trains

Ordinary Care

Ordinary, general standard of reasonable care

Does not require professional/expert testimony

Case(s): Myers, Martin, Campbell

Gross Negligence

No liability except in cases of gross negligence

Example: “Good Samaritan” statutes


Intentional or unreasonable disregard of a risk presenting a high degree of probability that substantial harm would result

Defining the Reasonable Person

**Black-letter law of negligence is that reasonable care is to be determined in the objective, not the subjective** (Menlove)

**Parents cannot be held liable for child’s negligence, but can be held liable for child’s intentional tort**

**Mental incompetence (“insanity”) is not valid defense in tort law**

Tender years doctrine

Illinois Rule is that a child of less than seven years old is incapable of negligence

0-7 years old = no duty

7-18 years old = duty to act as prudently as a child your age/experience, UNLESS engaged in “adult activity” (e.g. driving a car)

Massachusetts Rule is that any child will be found capable of negligence if fact finder decides child failed to exercise degree of care reasonable for similarly situated children (R2d view)

(C) Industry and Professional Custom

“T.J. Hooper Rule”

T.J. Hooper: compliance with industry custom is probative, but not dispositive, of reasonable care

“Anti-T.J. Hooper Rule”

Johnson: industry custom is dispositive in this case and for all “professionals”

Condra: refutes Johnson in ruling that expert testimony can be used to prove that  did not comply with industry custom

“Anti-Anti T.J. Hooper Rule”

Largey: custom probative, not dispositive

Informed consent: duty of physician to disclose to patient information that will enable patient to make an evaluation of nature of treatment and any attendant risks

Informed consent generally applied only to doctors/physicians, not technicians

Exceptions to rule of informed consent – no informed consent needed to operate on unconscious patient in need of immediate surgery

(D) Reasonableness, Balancing and Cost-Benefit Analysis

** Ordinary care determination often turns on matter of prevention costs compared with correlative risks of loss**

Hand Formula (Carroll Towing)

P = probability; L= loss/liability; B = burden

B < P x L= owner careless

B > P x L= owner NOT NECESSARILY careless

Calabresi’s “Lowest Cost Avoider”

Two different parties that can stave off risk, but the burden on one less expensive than that of other, the party with lower prevention cost should be the one to bear the preventative cost

(E) Proving Breach: Res Ipsa Loquitur

**Evidentiary doctrine that relieves  of “burden of production” as to what exactly  did wrong**

Requirements to invoke Res Ipsa Loquitur

Event must be of a kind that ordinarily does not occur in the absence of someone’s negligence

Must be caused by agency or instrumentality within exclusive control of defendant

Must not have been due to any voluntary action or contribution on part of 

(F) Negligence Per Se

**Judge determines if NPS instruction is to be given**

Doctrine permitting negligence  to satisfy breach element of cause of action by proving  violated certain kind of statutory rule of conduct

Relieves  of burden of proving that defendant violated common law’s reasonable person standard – conduct is per se unreasonable in that state legislature has pronounced it so

 who benefits from negligence per se must still prove actual cause

Conditions for Application of NPS

Only applies to violations of statutes that are intended to set standards of conduct, NOT record-keeping or other administrative functions

Establishing violation of a conduct-oriented statutory command is necessary, but not sufficient, to make out a claim for NPS

Must also establish that law was meant to protect a class of persons including 

Must also establish that law was meant to prevent sort of injury suffered by 

Excused Violations of NPS

Young children

Violation of statute was more prudent course of conduct (Tedla)

 unable to comply with statute (Busby)

Were the actions of the defendant the actual and proximate CAUSE of plaintiff’s injury?

**Cause element is question of fact and is determined by jury, subject to judge’s JMOL power **

Actual Cause

Actual cause: factor without which the result (or injury) in question could not happen (“cause-in-fact” or “factual cause”)

Tests of actual cause

“But-for” test: Would the plaintiff have been injured if the defendant had acted with the requisite care? (majority rule)

“Substantial factor” test: alternate test (minority rule, (notably in California)

Skinner: don’t need to negate all other possible causes, but must clearly be strongest hypothesis

Falcon: Loss of opportunity doctrine is an exception to “but-for” test

Multiple Necessary Causes

Joint and Several Liability entitles  to recover up to 100 % of damages from one of two or more parties in any proportion (’s option)

See McDonald

Multiple Sufficient Causes (“Overdetermined” or “Duplicative” Causation)

Conditions where two actors are each of sufficient magnitude themselves to cause injury, but neither could be deemed a “but-for” cause of injury; each actor is treated as a cause of injury (e.g. merging fires)

“But-for” test is suspended and “substantial factor” test used in its place in this situation

Admissibility of expert opinions in establishing cause: use Daubert test discussed in Aldridge

(1) whether theory or technique used by expert has been tested

(2) theory or technique has been subjected to peer review and publication

(3) known or potential rate of error of the method used

(4) degree of method’s or conclusion’s acceptance within the relevant scientific community

Burden Shifting

Alternate Causation

** Onus for proving actual causation is placed on each  to disprove their carelessness was a cause of ’s injury**

Multiple Necessary Cause

Tortfeasors acting independently


Tortfeasors acting jointly in planned effort

Concert of Action (Summers)

Tortfeasors acting jointly without planned effort

Market Share Liability (Sindell)


(1) existence of systemic reasons, independent of plaintiff’s diligence, for absence of evidence on product identification

(2) ability of plaintiffs to bring before court a group of defendants responsible for almost all sales of product

(3) fact that product in question was entirely generic and fungible in terms of design, manufacture and propensity to cause same illness among differently situated victims

(4) availability of at least some reliable data on market shares

Proximate Cause

Proximate cause: factor sufficiently related (i.e. nonfortuitously) to result (or injury) in question to be the cause of that result or injury (“legal cause” or “scope of liability”)

Alignment Concepts

Proximate Cause

Built into causation element

Additional condition that breach causing injury occurred in a “natural” rather than serendipitous manner

Aligns breach and injury elements

Relational Aspect of Duty (Palsgraf)

Built into duty element

Additional condition that plaintiff demonstrate breach of duty complained about was duty owed to them and not a duty owed only to persons situated differently

Aligns duty and breach elements

Modern formulation of foreseeability test for proximate cause is stated in Allbritton

Proximate cause requires foresight only about “genus, not particulars” of manner/extent of injury (Jolley)

Superseding Cause

**Question of fact for jury**

Injurious acts of intervening wrongdoer function to block attribution of responsibility to another, more remote wrongdoer whose wrongdoing was also a but-for cause of victim’s injury

Relieves “remote”  of all liability

Cases: Pollard, Clark, and Port Authority

Social Host Liability

Majority rule: non-commercial social hosts are typically not liable to victims of drunk drivers who became intoxicated at host’s party, but may be liable if guest is driving-aged minor

Massachusetts rule: may be liable if host continues to serve guest who is obviously impaired (minority rule)

Is the defendant able to assert any affirmative DEFENSES to the negligence claim?

Contributory Negligence

Contributory negligence: any carelessness on part of plaintiff that contributes to injury results in exoneration of defendant and plaintiff suffering full burden of loss (at fault  + at fault  =  loses)

Dissatisfaction with regime of contributory negligence mounted in the 20th-century; from 1970 to 1990, contributory negligence was eliminated and replaced with comparative responsibility schemes in all but five U.S. jurisdictions (Alabama, North Carolina, Virginia, Maryland, D.C.)

Comparative Fault

Responsibility split evenly among number of parties whose fault is found to have contributed to plaintiff’s injury; careless plaintiff with claim against one careless defendant receives 50% of damages while two careless defendants yields 66.67% of damages

Admiralty law long observed this scheme for property damage

Equal damages rejected in Reliable Transfer

Modified Comparative Fault

’s fault operates to defeat cause of action if it passes a certain threshold in relation to fault of defendant (usually 50%); compare to pure system that simply reduces recovery proportionally

2/3rds of comparative fault states have adopted modified comparative fault

Assumption of Risk


Victim formally ceded or abandoned right to redress that tort law would otherwise confer

Cases: Jones, Dalury


Victim knowingly and voluntarily took on risk that they might be injured by careless conduct on the part of the defendant(s), yet freely chose to proceed so as to expose themselves to risk

Commonly observed in recreational activities

Primary/Secondary implied assumption of risk

Primary: special rule of “no duty” under which participants in certain kind of activity (usually recreational sport) simply by virtue of participation are owed no duty of reasonable care by other participants

Secondary: implicit assumption of risk that led to comparative treatment of defendant’s and plaintiff’s fault

Bailments of Common Carriers

Most courts have refused to permit commercial bailees to exculpate themselves in this manner on ground of public policy

Common example is provided by parking garages that disclaim liability for “any damage” to cars parked on premises

Same holds true for attempts of common carriers – commercial operators of boats, buses, planes, taxis and trains

Immunities and Exemptions from Liability

Immunity: complete defense to liability granted to certain entities, as well as to actors in certain relationships

Intra-familial Immunity

Spousal Immunity: by 1970s majority of states had partially or completely eliminated spousal immunity

Parental Immunity

Charitable Immunity

Most states have rejected across the board charitable immunity but provide charities other protections, such as damage caps

Sovereign Immunity (Riley)

Held that courts have no authority to order federal or state governments into court at behest of private citizens and that injured plaintiffs are not permitted to include federal or state governments as parties to civil lawsuit

Federal Tort Claims Act (FTCA)

Primary effect of FTCA is to treat federal government, for purposes of tort liability, as if it were a private employer

Act does not accord claimants the right to jury trial

Claimants cannot obtain punitive damages against the government

Feres doctrine: bars any suits by military servicemen against government for injuries arising out of, or incident to, their service

Personal Immunity of Government Employees

Federal employees have been exempted by statute known as Westfall Act from being held individually liable for torts committed in scope of their employment

Municipal and Local Governments

Courts tend to exempt city and local governments from liability for governmental activities – such as provision of police force or fire department – and NOT proprietary activities – such as operation of a local utility

Public Duty Rule (Riis and Strauss)

Rule does not create an immunity defense but instead provides a rule affecting ability of plaintiff to establish duty element of prima facie case of negligence

Typically arises in cases alleging that local governmental entity has acted carelessly in failing to perform, or in performing, an affirmative duty (e.g. enforcement of building codes, delivery of fire department services, mistaken release of parolee by parole board)

Courts invoking rule deny liability on ground that, although government owes certain duties to public at large, it does not owe those duties to any individual member of public

Exceptions to public duty rule

Government actors made a particular undertaking to plaintiff

Government actors interacted with plaintiff in manner creating “special relationship”

Kircher extended Riis and identifies requirements of special relationship



Battery: Purposeful striking or touching of one by another – the intentional invasion of plaintiff’s personal space; infliction of harmful or offensive contact by an actor upon another with intent to cause such contact

Prima facie case of BATTERY

A acts (act element is rarely litigated)

Intending to cause a contact with P of a type that is harmful or offensive; and

(3) A’s act causes such contact

Contact element

“Harmful” contact involves contact causing bodily harms such as bruising or broken bones

“Offensive” contact involves an “objective” rather than “subjective” test; Contact must violate prevailing social standards of acceptable touching

Intent element

Certain contacts that might otherwise be deemed inoffensive as matter of law can be rendered offensive if defendant knows plaintiff is unusually averse to being touched in particular way